Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY op JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KF 4977.A2 1883 Digest of election cases.Cases of contes 3 1924 019 949 480 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019949480 47th Congress, » HOUSE OP EEPEBSENTATIVBS. ( Mis. Doc. 1«* Session. ( ( No. 57. DIGEST OF ELECTION CASES. CASES CONTESTED ELECTIOIsTS IN THE HOUSE OF REPRESENTATIVES, FOETY-PIFTH AND POETY-SIXTH CONGEES8ES, PROM 1876 TO 1880, INCLUSIVE. Compiled bt J. H. ELLSWORTH, Clbkk to the Committee on Elections, UNDER Joint Resolution appeovbd August 8, 1§82. WASHINGTON: GOVERNMENT PRINTING OFFICE, 1883. FORTY-FIFTH CONaHESS, SECOND AND THIRD SESSIONS. com:m:ittee on^ elections. John T. Harria, of Virginia. William M. Springer, of Illinois. Milton A. Candler, of Georgia. . Jacob Tumey, of Pennsylvania. ' Thomas B. Cobb, of Indiana. Jeremiah N. Williams, of Alabama. J. M. Smith, Clerk. E. John Ellis, of Louisiana. John T. Wait, of Connecticut. J. N. Thornburgh, of Tennessee. Hiraiii Price, of Iowa. Frank EQscock, of New York. DIGEST OF ELECTION CASES. FORTY-FIFTH CONGRESS, SECOND AND THIRD SESSIONS, PETER D. WIGGINTON vs. ROMUALDO PACHECO. POUBTH CONGEESSIONAL DISTRICT OP CAIIFOENIA. Held, That the board of supervisors, provided for under sections 429, 430, and 446 oi the statutes of California, is an official body having a jurisdiction defined by law,- required to keep a record, -which is to be signed by its chairman and clerk, and this record, duly certified to the secretary of state, must stand. Ex parte affidavits cannot be considered as evidence in these cases. The votes of persons whose names are not on the "Great Register" of voters (Cali- fornia) must be rejected. Ballots upon which the judges of election had written the names of the voters and the words "challenged, &c.," must not be rejected. If the voter had placed this- indorsement , upon the ballot, or any other words, by which it could be distin- guished, they should be rejected. When a ballot clearly designates the office to be filled, and the name of the person voted for, the voter is never permitted to contradict his ballot by evidence that he intended to vote for a different person, or for the same person for a different office. The House adopted the majority report February 7, 1878. Peter D. Wigginton sworn in. January 31, 1878. — ^Mr. John T. Harris, from the Committee of Elec- tions, submitted the following REPORT: The Committee of Elections, to whom were referred the j^a/pers relating to the eontested-election case in the fourth Congressional districrof Cali- fornia, having had the same under consideration, submit the following report : The Contestant, Peter D. Wigginton, claims the seat now occupied by Eomualdo Pacheco upon the grounds following : 1. That in the county of Monterey, in the State of California, being one of the counties composing the fourth Congressional district, the board of county canvassers, being the board of supervisors of said county, met at the proper time and place and canvassed the votes cast for Eepre- sentative in Congress ; and that said board found, and declared as the true result of the vote, that Peter D. Wigginton received 988 votes and S 6 DIGEST OF ELECTION CASES. Eomualdo Pacheco received 1,208 votes for Eepresentative in Congress in said county. That after the adjournment sine die of said board, the clerk thereof, who was not one of the members of the board, alteredand changed the vote of said county, so as to make it appear that Mr. W ig- ginton received only 986 votes in said county. • That this false and ille- gal return was by said clerk certified to the secretary of state as the true result of the votes cast in said county for Eepresentative m Con- gress. That the returns of the votes cast in all the counties of the fourth Congressional district of said State, as certified to the secretary of state, including the false and illegal return from Monterey County, showed the following result : For Eomualdo Pacheco lo' Jno For Peter D. Wigginton 19,103 Majority for Pacheco 1 That by the iUegal and fraudulent change made by the clerk of Monte- rey County, whereby two votes were taken from the number received by Mr. Wigginton, the result in said Congressional district was changed, and the sitting member was counted in by one majority, whereas the contestant should have been declared elected by the same majority. 2. That thirteen persons voted for Mr^ Pacheco, in certain precincts and counties of the district, who were non-residents, and not entitled to vote under the laws of the State of California. 3. That three persons voted for Mr. Pacheco whose names were not on the great register, as required by the laws of that State. 4. That six persons voted for Mr. Pacheco whose ballots were so marked as to indicate who cast them, and that such ballots must be rejected under the laws of California. 5. That in two precincts there were more votes couiited than there were names on the poll-list; that the judges in each^f these failed to 4raw out the excess of votes and destroy them. That, by this failure on the part of the inspectors, two votes were counted for Mr. Pacheco that ought not to have been counted. 6. That there were such irregularities and illegal practices on the part of the inspectors of election and the voters of Saticoy precinct, in Ventura County, as to invalidate the whole vote of the precinct. In this precinct the vote stood — For Eomualdo Pacheco 85 For Peter D. Wigginton 51 If the contestant should make good the foregoing grounds of contest, he would add to his own vote two votes in the county of Monterey, and subtract from Mr. Pacheco's vote fifty-eight votes; and the result would then be as follows : For Mr. Wigginton , 19,105 For Mr. Pacheco y , 19,046 Majority for Mr. Wigginton 59 A careful examination has been made of each of the grounds of con- test above set forth, with the result following: MONTEREY COUNTY. In Monterey County, according to the returns first sent to the secre- tary of state, the vote was : For Pacheco 1,208 ForWjgginton 98tj WIGGINTON VS. PACHECO. 7 But contestant claims that those returns should have shown that he received 988, which would have given him a majority of one in the dis- trict. Being constrained to differ with the contestant as to this, the following considerations are presented: 1st. By the laws of California it is provided that after the ofi&cers of the election shall have counted the ballots, of which tally-lists are to be kept, lists must be attached to the tally-lists, containing the names of the persons voted for, and the number of votes given for each candi- date, the number being written at full length, must be signed by the members of the board, and attested by the clerks. These tally-lists, with the list of persons voted for, with the number of votes received by each, together with the ballots, &c., are requireii to be sent to the clerk of the county at the county seat. These returns are required to be (janvassed by the board of super- visors of the county. This board of supervisors is not a board simply created for the purpose of canvassing the returns of an election, and which ceases to exist upon that duty being discharged; but it is an official body of a continuing character, required to keep a record of its proceedings, holding sessions day after day — pn one day signing and attesting the proceedings of the day next preceding, &c. Its char- acter is sufQciently shown in the opinion of Mr. Justice Ehodes, at the beginning of that opinion, on page 34, part first, of the record. As to this there can be no doubt, and it is an important fact to be noted. The duties of this board touching the matter of elections are thus defined by the statute : Sec. 4046i Sabdivision 3. To establish, abolish, and change election-precincts, and to appoint inspectors and judges of elections, canvass all election-returns, declare the result, and issue certificates thereof. Sec. 4030. Subdivision 1. The clerk of the board must record all the proceedings of the hoard. Sec. 4029. The clerk of the county is ex-officio clerk of the board of supervisors. "the records must be signed by the chairman and the clerk. The clerkmust be paid snch compensation as is provided by law in full for all services as clerk of the board. This board having this jurisdiction, the statute further provides as to the manner of canvassing the returns in the following sections : Sec. 1281. The canvass must be made in ;^ublic, and by opening the returns and «8timating the vote of such county or township for each person voted for, and for and against each proposition voted upon at such election, and declare the result thereof. Sec. 1282. The clerk of the board must, as soon as the result is declared, enter on the records of such board a statement of such result, which statement must show — 1. The whole number of votes cast in the county. 2. The names of the persons voted for and the proposition voted upon. 3. The office to fill which each person was voted for. 4. The number of votes given at each precinct to each of such persons, and for and against each of such propositions. 5. The number of votes given in the county to each of such persons, and for and against each of such propositions. Here, then, we have an ofBcial board, having a jurisdiction defined by law, required to heep a record, which is to be signed by its chairman nrid the clerk. , The supreme -court of California, in the litigation over this very case, said of this record thus made (see page 34 of the record in this case) : A record kept and authenticated in the manner provided bj"^ those two sections (4030, 4029) is the evidence of the proceedings of the board, and is the only evidence thereof in cases where the proceedings are required to be entered of record. Then the statute further provided that this record shall be certified to the secretary of state, as will appear by t!he following sections : Sec. 1344. The clerk of each county, as soon as the statement of the vote of his Claimants. James B. Belford. ) It is herehy mutually agreed and stipulated between the said Thomas M. Pattersonj of the one part, and the said James B. Belford, of the other, that if laws were in force and by virtue of which an election might have been legally held in the State of Colo- rado upon the Tth day of November, A. D. 1876, for Representative to the Forty -flffch Congress from said State, then and in that event the following number of votes werelegalli cast by qualified electors, at an election held in said State upon the said 7th day of November, A. D. 1876 for said Representative to the Forty-fifth Congress, and which votes were divided among the persons respectively voted for upon said day, for said office, as follows : Whole number of votes cast for Representative to the Forty-fifthCongress, thirty- eight hundred and twenty-uine (3,8^9), and of which Thomas M. Patterson received thirty-five hundred and eighty (3,580). James B. Belford, one hundred and seventy-two (172). Scattering, seventy-seven (77). And in view of the foregoing, it is further stipulated and agreed that all registry- lists and poll-books of said election, and the returns and abstracts of votes cast thereat, and wliich accompany the testimony iii said case, and are produced by the said Thomas M. Patterson for the purpose of establishing the number of votes so cast at the said election, may be omitted in the printing of the said testimony, the statement concern- ing said votes hereinbefore made to be taken upon the condition first hereinbefore mentioned by the House of Representatives and the Committee on Elections of said House as a full, true, and correct account of the same. ' In witness whereof we have hereunto affixed our hands this 2d day of November, A. D. 1677. THOMAS M. PATTERSON. JAMES B. BELFOED. It is also admil,ted that Mr. Belford received a majority of the votes cast on the 3d day of October, and if that were the day prescribed bj law for holding the election for Representative in the Forty-fifth Con- gress from Colorado, then Mr. Belford is entitled to the seat. The question has also been raised and considered by the committee as to whether either of said days was the day prescribed by law, and whether any legal election has been held in said State for Eepresent- ative in the Forty-fifth Congress. The following facts are established beyond controversy : 1. That the secretary of state did, on the 31st day of August, 1876, issue his proclamation (printed Eecord, page 138) notifying the people that there would be an election on the 3d day of October, 1876, for State oflScers kndfor "one Eepresentative for the unexpired term. Forty -fourth Congress"; that this proclamation made no mention of the election of a Eepresentative in the Forty-fifth Congress ; and that the sheriffs of the several counties of the State promulgated like proclamations and notices, 2. That on the 14th day of September, 1876, the secretary of state issued his proclamation (printed Eecord, page 254) giving notice of an election to be held November 7, 1876, for a Eepresentative from the State at large for the Forty-fifth Congress; that no other officers were to be elected at such election, and that the sheriffs of the several coun- ties issued like notices in their several counties. 3. That these proclamations by the secretary of state and the sheriffs 54 DIGEST OF ELECTION CASES. of the several counties were the only notices published by legal author- ity, or otherwise, relating to said elections until after the election on the 3d day of October. 4. That the names of both contestant and contestee were printed gen- erally upon the tickets used at the election on the 3d day of October for both the Forty-fourth Congress (unexpired term) and the Forty-fifth Congress ; but there was no agreement between the respective claim- ants or their friends as to whether the 3d day of October was the day prescribed by law for holding the election for a Representative in the Forty-fifth Congress., 5. That on the 10th day of October, one week after the election on the 3d day of that month, J. C. Wilson, chairman of a State political com- mittee favoring the election of Mr. Belford, issued atv address (Record, pp. 45-47) calling on the friends of Mr. Belford to prepare by registra- tion and otherwise for the election on the 7th day of November. 6. That on the 16th day of October tlie secretary of state issued a proclamation withdrawing his proclamation of September 14, which gave notice of the election on the 7th November. 7. That on the 14th day of October, the said J. 0. Wilson, on behalf of Mr. Belford, withdrew his name from any further candidacy for Con- gress, claiming that he had been elected on the 3d day of October to the Forty-fifth Congress, as well as to the unexpired term of the Forty- fourth Congress, and advised Mr. Belford's friends to take no part what- ever in the election on the 7th day of November. 8. That the votes cast at the election on the 7th day of November were counted by the proper officers, in eleven counties^ aud transmitted to the secretary of state, but were not canvassed by that officer, or by any State canvassing-board ; that in the other fifteen counties of the State no abstracts of the votes cast were sent to the secretary of state by the eounty clerks ; but the stipulation filed by the parties to the con- test, and above set forth, shows the true result of the votes actually cast in the whole State. There are no material facts in the case that are disputed. Your committee are of opinion that, so far as the facts are concerned, the election on the 3d of October, and also that on the 7th of Novem- ber, were sufficiently regular to constitute a valid election of a Repre- sentative in the Forty-fifth Congress from the State of Colorado; and the only question about which there can be any doubt is, as to which of those days was the day prescribed by law for holding such election. There was no notice given for holding an election on the 3d day of October for a member of the Forty -fifth Congress. But the law is well settled that where the time and place for holding an election are fixed by statute, any voter has a right to take notice of the law, and to de- posit his ballot at the time and place appointed, notwithstanding the officer, whose duty it is to give notice of the election, has failed in that duty. (Cooley, Constitutional Limitations, 603; McCrary on Elections, sec. 118.) There was no canvass of the votes cast on the 7th day of November by the State canvassing-board, but Mr. Patterson produces certified copies of the abstracts of the votes which are on file in the office of the secretary of state of Colorado, and also proof of the number of votes cast in the several counties of the State. Nothing is better settled than this, that the failure of a board of canvassers to canvass the votes and declare the result does not invalidate an" election other- wise regular and valid. ^ The important and controlling question in the case is, therefore, this : Whether the 3d day of October or the 7th day of November was the PATTERSON VS. BELFORD. 55 time prescribed by law for holding the election for a Representative from Colorado in the Forty-fifth Congress. Upon this point your committee invite attention to the following pro- visions of law and their proper construction. 1. — THE ACTS OF CONGRESS. The twenty- fifth section of the Revised Statutes is as follows : The Tuesday next after the first Monday in November, in the year eighteen hundred and seventy-six, 'is established as the day, in each of the States and Territories of the United States, for the election of Representatives and Delegates to the Forty-fifth Congress; and the Tuesday next after the first Monday in November, in every second year thereafter, is established as the day for the election, in each of said States and Territories, of Representatives and Delegates to Congress oommeucing on the fourth day of March next thereafter. Tour committee are of the opinion that the twenty-sixth section of the Revised Statutes, in reference to the filling of vacancies in Con- gress, has no application to the case of the election of the. first Repre- sentative in Congress to which any new State may be entitled, and that the first election, if for an unexpired term, is not in any sense the filling of a vacancy, as provided for in said twenty-sixth section of the Revised Statutes. Your committee are also of the opinion that the act of March 3, 1875, which modified the twenty-fifth section of the Revised Statutes so as not to apply to any State whose constitution must be amended in order to effect a change of the election of State officers in such States, in no way related to the State of Colorado. 2. — THE ENABLING ACT. If Colorado has been exempted from the operations of the twenty- fifth section of the Revised Statutes, such exemption results from the sixth section of the act entitled "An act to enable the people of Colo- rado to frame a constitution and State government and for the admis- sion of such State into the Union on an" equal footing with the original States," approved March 3, 1875. The sixth seption of the said act is as follows : That until the next general census, said State shall be entitled to one Represent- ative in the House of Representatives of the United States, which Representative, together with the governor and State and other officers provided for in said constitu- tion, shall be elected on a day subsequent to the adoption of the constitution, and to be fixed by said constitutional convention; and until such State officers are elected and qualified under the provisions of the constitution, the Territorial officers shall continue to discharge the duties of their respective offices. A similar provision was contained in the enabling act of ISTevada and other States. The sixth section of the Nevada act, approved March 21, 1864, is as follows : Sec. 6. And he Ufurfher enacted, That until the next general census shall be taken, said State of Nevada shall be entitled to one Representative in the House of Repre- sentatives of the United States, which Representative, together with the governor and State and other officers provided for in said constitution, may be elected on the same day a vote is taken for or against the proposed constitution and State government. It is clear and unmistakable that this section refers only to the first election to be held in the State, and that the Representative in Con- gress to be elected at that time was only to be elected for a constitu- tional term, and not for the whole period of the decade until the next general census. The intention of Congress in the case of Nevada was 56 DIGEST OP ELECTION CASES. evidently to provide for the election at the first election of the member of Congress to which the State might then be entitled under the con- stitution and laws. A similar provision in the Colorado act should be construed in like manner, unless there is something in the text or context which warrants a different construction. A careful analysis of the sixth section of the Colorado act is necessary to a clear understanding of its meaning and scope : That until the next general census, said State shall be entitled to one Mepresentative in the House of Representatives of the United States. This language evidently refers only to the number of Eepresent- atives to which the State is to be entitled until the next general census — one Representative, as distinguished from two or more. The words '^ which Representative''' evidently refer to the one Repre- sentative which the State is entitled to elect at the first election. In the Ifevada act this construction will not be disputed, and was actually carried into effect by the action of Congress and the people of that State. The language of the Kevada and the Colorado acts is precisely the same on this point, and a construction which applied to the one applies equally to the other. If it be contended that the words " which Rep- resentative" referred to the Representative to which the State was en- titled until the next general census, the provision would be unconsti- tutional and void ; for the Constitution of the United States (Art. I, sec. 2) provides that — The House of Eepresentatives sliall be composed of memljers clioseii every second year by tile people of the several States. Hence it cannot be supposed that Congress intended to authorize the people of Colorado to do an unconstitutional thing ; namely, to elect a Representative for more than two years. And if such had even been the plain language of the section, it would bfe good only to the extent of its constitutionality; that is, for the first term, or part of a term, that might be filled atthc/flrst election of State ofi&cers. Let us proceed further : Which Bepresentative, together with the governor and State and other officersprovided for in said constitution, shall be elected on a day subsequent to the adoption of the constitution, and to be fixed by said constitutional convention. It is evident that the day to be fixed by the constitutional convention was that upon which the first State officers were to be elected; for the subsequent part of the section leaves no doubt upon the p'oint : And until such Slate officers are elected and qualified under the provisions of the consti- tution, tlie Territorial officers shall continue to discharge the duties of their respective offices. The words " such State officers" refer to the State officers mentioned in the first part of the section, and it is absurd to suppose that the Territorial officers should hold office after the first officers elected un- der the new State constitution should be elected and qualified. The sec- tion is relieved from all doubt on this point. Hence the election-day which Congress authorized the constitutional convention to fix was the day upon which the first set of State officers of the new State were to be elected, and it was upon that same day that the one Representative in Congress to which the State might be entitled was to be elected, for the words "which Represeutative" and the words " the governor and State and other officers" all relate alike to the phrase "shall be elected on a day subsequent to the adoption of the constitution, and to be fixed by said constitutional convention." PATTERSON VS. BELFORD. 57 3. — THE PROVISION OP THE CONVENTION. The constitutional convention of Colorado evidently construed the sixth section of the enabling act as only authorizing it to fix the time for holding the first election of a Eepresentative in Congress. The pro- vision of the constitution of Colorado on this subject is as follows: One Representative in the Congress of the United States shall be elected from the State at large, at the first election under the constitution, and thereafter at such times and places and in such manner as may be prescribed by law. (Sec. 44, Art. 5.) If it were constitutional for Congress to confer upon the Colorado convention the power to fix the time for holding Congressional elections, and if Congress had actually authorized the convention of Colorado to do so, yet the convention failed to fix a time, except for the first election. Thereafter the election was to be held " at such times and places and in such manner as may be prescribed by law." It will not be contended by any one that the mere authorizing of the constitutional convention to fix the time for holding Congressional elections actually repealed the time already fixed by Congress without the constitutional convention having exercised the authority conferred upon it. A power of attorney authorizing an agent to sell certain lands, does not transfer the title from the principal to the agent; and if the agent fails to make the sale which he was authorized to make, there has never been a ehange of ownership. So if Congress could confer upon any other body power to repeal an act of Congress, in its discretion, and if such body should fail, or refuse to make the repeal, the act would continue in force, just as if the authority had iiot been given. 4. — REPEALS BY IMPLICATION. If section 6 of the enabling act did work a repeal of the twenty- fifth section of the Eevised Statutes, such effect can only be given to it by implication. But the well-established rule of construction is this, that one statute is not to be construed as the repeal of another if it be possible to reconcile the two together. (McCoul vs. Smith, 1 Black, 459.) And the Supreme Court has also held that " a repeal by implica- tion is not favored ; the leanings of the courts is against the doctrine, if it be possible to reconcile the two acts of the legislature together." (1 Black, U. S. E., 470.) " Before there is a repeal by implication there must be such repugnancy that the two statutes cannot stand together or be consistently reconciled." (Marlot vn. Lawrence, 1 Blatchford, Ct. Ct., 608.) See, also, Mr. Justice Story in Wood vs. The United States (15, Peters, 363), where this doctine is clearly stated and cogently applied to a similar case of construction. It will not be pretended that there is a positive repugnance between the sixth section of the enabling act and the twenty-fifth section of the Eevised Statutes. The two sections can stand together and be consistently reconciled. It is not only possible to reconcile the two sections, but it is only by "an ingenious course of argument" that any repugnance is made possible. 5. — A LAW OF CONGRESS THE SUPREME LAW OP THE LAND. From the foregoing it will appear that the twenty-fifth section of the Eevised Statutes, which fixed the Tuesday next after the first Monday in November, 1876, as the day for electing Eepresentatives to the Forty- fifth Congress in all the States of the Union, was not repealed as to 58 DIGEST OF ELECTION CASES. Colorado by the sixth section of the enabling act, or in pursuance thereof. Congress having, in the exercise of its constitutional power, fixed the time for holding the election for Representatives in the Forty- fifth Congress in all the States, from the moment of the passage of the act of Congress it became and was engrafted upon the statutes of every State in the Union, and it required no auxiliary State legisla- tion to give effect to the national statute. But the election laws of the several States which fixed the places and prescribed the manner of such elections were not affected, altered, or repealed ; and the national statute fixing the time and the State statutes fixing the places and prescribing the manner of holding the CongressionaV elections, formed a complete election machinery for the election of Eepresentatives in Congress. 6. — SELECTION-LAWS OF COLORADO. The schedule to the Colorado constitution (section 1) provides that all laws in force in Colorado at the adoption of the constitution should re- main in force until altered or repealed by the legislature. It is not dis- puted that there was a well-defined and perfect code of eleccion-laws in force in Colorado at the time of the adoption of the constitution. In pursuance of these laws, the State election and the election for Eepre- sentative in Congress for the unexpired term of the Forty-fourth Con- gress were held on the 3d day of October, 1876, and Mr. Belford does not question the validity of such laws, for he claims his own election on the 3d of October, 1876, to this Congress, by virtue of an election held in pursuance thereof. These State laws provided fully for the places and prescribed the manner in which "all general and special elections" should be held in the State. There were, then, in force in the State of Colorado, on the 7th day of November, 1876, laws providing a full, com- plete, and perfect election machinery for electing a Eepresentative to the Forty-fifth Congress — the time fixed by Congress, and the places and manner provided by the State statutes. 7. — LiaHT VOTE POLLED. Objection has been made to the seating of Mr. Patterson, upon the ground that there was a light vote polled at the I^Tovember election, compared with the vote at the October election. But Mr. Belford can- not complain of this, nor can his political supporters. For his name was withdrawn from the canvass three weeks before the November elec- tion, and his supporters were advised not to participate in the election. The absence of a contest would naturally result in a light vote. At the recent election for governor and other State oflScers in the State of Vir- ginia, there were polled in the city of Eichmond less than two thousand votes out of an aggregate voting population of thirteen thousand. There was no contest between opposing forces, and a light vote was the result. But no one will 'seriously contend that this impaired, in the slightest degree, the validity of the election. The law is well settled on this point. Mr. McCrary, in his work on the law of elections, states the rule thus (section 448) : If an election is held according to law, and a fair opportunity is presented to all voters to participate, those who do not vote are bound hy the result. In the case of Eex vs. Munday (2 Couper, 238), Lord Mansfield, in delivering the opinion of the court, said : Upon the election of a member of Parliament, where the electors must proceed to an election because they cannot stop for that day to defer it to another time, there must be a candidate or candidates ; and in that ease there is no way of defeating the elec- tion of one candidate proposed iut iy voting for another. PATTERSON VS. BELFORD. 5& In the case of The Commonwealth vs. Read (Brightly's Election Cases^ 130-1), this rule is recognized to the fullest extent. In this case it was the duty of the board of county commissioners, under the statute, to elect a county treasurer. The board consisted of twenty members, all of whom were present, but a controversy arose among them as to the man- ner of voting, whether viva voce or by ballot, and only one of their num- ber, Abraham Miller, voted by ballot, while the others voted viva voce. The statute required the election to be by ballot, and by virtue of this one vote Eeade claimed to be elected. The court instructed the jury as follows : In all our public elections those who neglect or refuse to vote according to law ar& hound by the votes of those who do vote, no matter how small a minority those who do vote are of the whole constituency. It is an historical fact that about forty thou- sand electors who voted for one or the other of the candidates for governor at the late election did not cast any vote for or against the amended constitution, and yet that in- strument has, by a comparatively small minority, become the supreme law of the land. The result of our opinion is that if you are satisfied from the evidence that Abraham Miller tendered a vote by ballot for the defendant, and that his vote by ballot was re- ceived as such, then has the defendant sustained his plea of having been, on the let of April last, duly elected county treasurer. A former Committee of Elections of this House (Nineteenth Congress, 1st session), in the case of Biddle and Eichard vs. Wing (Clark and Hall, page 507), laid down the rule which has always been recognized. The report in that case held that — The law appoints a particular time and place for the expression of the public voice* When that time is past it is too late to inquire who did not vote, or the reason why The only question now to be determined is for whom the greatest number of legal vote have been given. The small vote on the 7th of November in Colorado was not the result of intimidation of voters; but, on the contrary, the supporters of one of the claimants of the seat voluntarily absented themselves from the elec- tion by preconcerted arrangement, and for the very purpose of invalidat- ing the election, so far as it was in their power to do so by their absence. Conceding that there was an honest difference of opinion among the voters of Colorado as to the legal day for the election, some believiing the 3d day of October and others the 7th day of November to be the law- ful day, yet it will not be pretended that the proper construction of an act of Congress is to be determined by the voters of a particular district. The provisions of law which fix the time or place of holding elections are mandatory. As to the time of election, the day cannot be changed even by the consent of all the voters. (McCrary, sec. 114.) Ignorance of the proper time, or a misunderstanding of the law on the part of a portion of the electors, will not deprive those who do un- derstand the law and who do act upon the day prescribed by law, from their right to vote and control the election. It is not denied that the electionon the 7th day of November was conducted in accordance with the general election-law of the State; that all electors who desired to do so were permitted to vote, and that the canvass and result were honestly made and published. CONCLUSION. Mr. Patterson having received a majority of all the votes cast at the election on the 7th day of November, 1876, in the State of Colorado, for Eepresentative in the Forty -fifth Congress, and that being the day pre- scribed by law for holding such election, your committee recommend the adoption of the following resolution : Resolved, That Thomas M. Patterson is entitled to a seat in this House 60 DIGEST OF ELECTION CASES. as the Eepresentative in the Forty-fifth Congress from the State of Col- orado. All of which is respectfully submitted. JOHN T. HARRIS. WILLIAM M. SPRINGER. MILTON A. CANDLER. JAC. TURNBY. THOS. R. COBB. JEEE. N. WILLIAMS. E. JNO. ELLIS. I reserve the right, in a report hereafter to be filed, to assign my own reasons for agreeing with the conclusions of the above report. E. JNO. ELLIS. Mr. John T. Wait, from the Committee on Elections, submitted the following as the • VIEWS OF THE MINOBITT. The undersigned, from the Committee on Elections, dissenting from ,the views of a majority of your committee, submit the following, in the oontested-election case from the State of Colorado. In determining who, if any one, as a Representative from Colorado, is entitled to a seat in the House, two questions must be considered : Ist. Did Congress empower the constitutional convention to fix the time at which the member to this Congress from that State should be elected? 2d. If this power was conferred by Congress on the convention, did that body execute it ? The section of the enabling act bearing on the question of Colorado's representation in Congress reads as follows : Sec. 6. Until the next general census said State shall be entitled to one Eepre- sentative in the House of Representatives of the United States, which Representative, together with the governor and other State officers, shall be elected on a day subse^ quent to the adoption of the constitution, and to be fixed by said constitutional con- vention. That the convention was to have power over the Eepresentative men- tioned in this section is, it seems to us, entirely certain. The only words of limitation in the provision and upon the grant of power are " until the next general census." Certainly there is nothing in the section which limits the election of the Representative mentioned therein to the unexpired term of the Forty -fourth Congress, nor is there any lan- guage which limits it to the first Representative to be elected. The words " which Representative " relate to the Representative or representation the incoming State would be entitled to until the next census, and the day subsequently referred to to be designated for elec- tions refers to a day or period of time periodically recurring. To section 6 of the enabling act, as above quoted, should be added: And till such State officers are elected and qualified under the provisions of the constitution, the Territorial officers shall continue to discharge the duties of their respective offices. It is claimed this language proves only one set of State oflacers and one election are referred to in the section. rarirxBESOH~7S. BELFORD. 61 It seems to us the whole object of the above clause is to Indicate when the Territorial abdicate in favor of the State officers. If it read "until State officers are elected," omitting the " such," the above argu- ment would not be made. Then to what does " such " refer ? Our un- derstanding is, th& object of the preceding provisions of the section in reference to elections was to provide the Eepresentative should be chosen with the State officers, until the next general census, and in speaking of State officers it refers to all in their respective lines of suc- cession until then. Doubtless the section provides for a first election, and it contemplates an ''election day" will be fixed for future State officers and Repre- sentatives — a day, as we have before remarked, periodically recurring for future elections, and the only effect of the word " such," if it has any special effect, is with more particularity and certainty to refer to State officers elected under the constitution. We think it does not strengthen or change the meaning of the pro- vision. We next call the attention to section 44 of the constitution, which provides : One Representative in the Congress of the United States shall be elected from the State at large at the first election under this constitution, and thereafter at such times and places and in such manner as may be provided by law. It will be remarked the constitution follows the wo/ds of the enabling act in describing who is to be elected. " One Bepresentative" * * "is to be elected." The provision was prepared in the light of and with the act of Con- gress before the convention, and we suppose it is not open for argument that the acceptance of a power, the execution of a grant of power, in the very language of the grant, is a full acceptance and a complete execution. The section of the constitution quoted intended to and did provide for the election of a Representative to Congresses then in existence or thereafter to be held, for the election to which, according to the usages and laws in other States, and in the light of the usages of this House aifd the laws of the United States, the day indicated would be reason- able and proper ; and since other States are now represented here by the authority of elections held upon or about the day fixed, its reason- ableness and propriety as a day to elect a Eepresentative from Colorado to the Forty-fifth Congress cannot be questioned. The day is indicated by section 7, providing for general elections the first Tuesday of October, commencing with 1876, and continuing to, and including, 1878, the first Tuesday in October, 1876, being the first election within the language of the forty-fourth section above quoted, " the first election under this constitution." The argument against this construction is, that "Eepresentative," as there used, refers to a Representative to the Forty-fourth Congress. If read thus, we submit the subsequent lines " thereafter at such times,' '&c., means " Representatives to Congress, thereafter, at such times," &c. We will render the section with the interpolations : One Representative in (the Forty-fourth interpolated) Congress of the United States shall be elected from the State at large, at the first election under this constitution, and (Representatives to Congress interpolated) thereafter (meaning after the Forty- fourth) at such times, &.c. Placing in the provision the first interpolation, and " thereafter " must of necessity have the purpose and meaning of the subsequent inter- polation. €2 digest' of liiijauiiupt ijii.ojc;o. The last clause of the section " thereafter at such times," «&;c., " as may be provided by law," does not provide for legislation in the State for a future election-day to the Forty-fifth Congress. The section of the enabling act we have cited clearly confines" the election to the day of the election of State officers ; and that having been by the.convention desig- nated the first Tuesday in October in each year, the legislature would have no power to change it, and any provision in the constitution pur- porting to give the legislature that power would be against the letter and spirit of said section 6 of the enabling act, and if said clause may seem to refer to future elections, if read by itself, the provisions for gen- eral elections we have cited, subsequently occurring in the constitution, the seeming inconsistency must yield to a harmonious inter})retation not against the terms and spirit of the enabling act, and favorable to the conceded right of the State. And it seems to us the forty -fourth sec- tion is not a limitation upon the provision for general elections, but on the contrary, if it provides only for a Representative to the Forty -fourth Con- gress, the provision for general elections is the provision it contemplates for Eepresentatives to future Congresses, and by force of it, the State •could elect to the Forty-fifth Congress; that a constitutional conven- tion may provide for the election of a Eepresentative other than to the first Congress thereafter has been heretofore decided by the House of Eepresentatives after due consideration and by a non-partisan vote. (See Shiel vs. Thayer, p. 357, 1st sess. 37 Cong., Globe Appendix, 1861, Vol.45.) Our conclusions and argument are supported by the fact if Colorado could not elect to this House in October, 1876, she could not at all. If we are right in the construction we have given section 6 pf the enabling act, it is in conflict with the act of Congress designating the first Tues- day after the first Monday in November, biennially, for the election of Eepresentatives, and being the later law, repeals it as to Colorado. And, as we have shown, the enabling act limited the election of Eepre- sentatives to the day of the election of State ofiBcers, the first Tuesday in October in each year. In this connection, it is to be observed the convention, further on in the constitution, provided: Sec. 16. The votes oast for Eepresentatives in Congress at the first election held under this constitution shall be canvassed and determined in the manner provided by the laws of the Territory for the canvass of votes for Delegates in Congress. Would the convention have used the word "Bepresentatives,''^ a plural description, if it contemplated a Representative to the vacancy in the Forty-fourth Congress only was to be elected, and the preceding provis- ions only provided therefor? That the constitutional convention assumed it had full jurisdiction of the question and intended to exercise it the last-quoted section makes apparent; it continued the election-laws of the Territory to the elec- tion in October and no further, and by the provisions of the constitu- tion fixing the time of the assembling of the first legislature of the State and its methods of enacting laws, it was impossible for it to pro- vide election laws for the first Tuesday after the first Monday in Novem- ber (see constitution of Colorado) ; the inference follows it assumed a Eepresentative to this Congress was to be elected in October, 1876; otherwise it intended not to make provision for such an election. But supposing the constitution only provides for the election of a Eepresentative to one Congress, in the absence of language showing another intent you are compelled to the conclusion it was for the one it had the constitutional right to provide for, and when Colorado was in- x^j-ijiiiouiN VS BELFORD. 63 vested with her sovereignty as a State, as to her there was a vacancy in the Forty -fourth Congress, and the Constitution of the United States provides (see next to last clause of section 3, article 1) — When vacancies happen in the representation from any State, the execntive author- ity thereof shall issue writs of election to fill such vacancies. Certainly the election in October was not by virtue of any proclama- tion, and the constitutional way of filling a vacancy was not pursued, with the uncertainty when the State would be admitted. With the aforesaid right of the executive power to provide for filling a vacancy, who may say it is not fairly inferable the convention provided for elect- ing to the first Congress after the admission of the State? But the State of Colorado and her people alone are interested in this question. She is entitled to representation, and the proper and only function of the House is to see that, within the principles of representation under- lyin g the legislative branch of our government, she has her constitutional right. And upon this complex question — for we suppose it must he com- plex, since the views of members of your commmittee are so diverse — her people have put a construction. We suppose it to be well settled in cases of the doubtful construction of a statute involving the rights of the people, and only their rights as distinguished from individual rights, the adoption of a particular con- struction with entire unanimity has never been disturbed by a power only interested to preserve the rights of the State; certainly never when the only possible injury to the constituency is in the political associa- tions of the individual who shall represent the State if that construction shall remain unreversed. And we affirm most confidently the people of Colorado have construed the provisions hereinbefore discussed in ac- cordance with our views; and upon that point we submit a few of the most prominent facts. The call for the Eepublican convention notified the delegates that a candidate for the Forty-fourth and Forty-fifth Congresses would be voted for at the October election. (See answer to the 35th direct inter- rogatory to Mr. Wilson, chairman of the Eepublican State central com- mittee, at page 42 of the printed testimony.) As early as September 7, lacking but four days of one month before the October election, Mr. Patterson was engaged with his friends dis- tributing throughout the State tickets with his name on for both Con- gresses. (See testimony of Wilbur F. Stone, pp. 101 and 102.) In his letter to Mr. Butler, chairman of the Democratic State central com- mittee, written on the 7th day of September, he advises that gentleman that the popular belief is that the member to the Forty-fourth and Forty-fifth Congresses is to be elected at the October election. (See tes- timony, p. 68.) The Kansas City Timesj Colorado edition, a representative Demo- cratic paper established in Colorado to advance the interests of the Democracy, in its issue of the 16th of September, advised the people to vote for Mr. Patterson for both Congresses at the October election, and repudiated the idea that the member to the Forty-fifth Congress could be elected at any other time. General Hughes, the Democratic candidate for governor, when con- sulted by his friends on the subject, advised them to place Mr. Patter- son's name on the tickets for both terms. (See p. 210.) The tickets were so printed and so voted in every county in the State. Twenty-six thousand and seventy -four votes were cast by the people at the October election as against 3,580 cast for Mr. Patterson in November. 64 DIGEST OF ELECTION CASES. Some stress has been placed on the fact that a proclamation was is- sued notifying the.electors that the member to the Forty -fifth Congress would be elected in November. It is evident that the existence of this proclamation had little or no effect on the votes cast in October, Al- most from the moment of its issuance it encountered the hostile criti- cisms of both parties, and was withdrawn some considerable time before the November election. It was issued by a clerk in the oflice of the secretary of state, during his absence from Colorado, and against his opinion and Judgment. The following tables of the of&cial eanvass establish most completely the unanimity of the people in giving to the provisions of the constitu- tion the construction we have submitted,. Certificate of board of canvassers. State of Colorado. To his excellency Hon. John L. Eoutt, Governor of the State of Colorado : We, the undersigned, composing the board of canvassers of the said State, respect- fully represent that, in the discharge of the duties imposed upon them by the consti^ tution and laws of said State, they did, in your presence, on the 28th day of October, A.D. 1876, proceed to canvass the votes polled at an election held on the 3d day of October, A. D. 1876, for Eepresentative to the Forty-fourth and to the Forty-fifth Congresses of the United States, and we do hereby certify that we have oarefuUy ex- amined all the returns from the board of canvassers of each of the counties in said State, as returned and now on file in the office of the secretary of state, and that the following is the result of our canvass of the whole number of votes polled for said offices at said election, to wit : For Eepresentative in Forty-fourth Congress. For BepresentaHve in Forty-fifth Congress. Arapahoe County... Bent Cotmty Boulder County Conejos County Clear Creek County Costilla County Douglas County Elbert County , El Paso County Fremont County — Grrand County GUpin County Huerfano County . . . Hinsdale County — Jefferson County ... Lake County La Plata County Larimer County Las Animas County. Park County Pueblo County Hlo Grande County San Jnan County . . . Saguache County . . Summit County..... WeldConntjr Total vote . — Mr. Cobb, from the Committee on Elections, sub- mitted the following BMPORT: The Committee on Elections, to whom were referred the papers relating to the contested- election case in the second Congressional district of Florida, having had the same under consideration, submit the following report: The second Congressional district in the State of Florida is composed of the counties of Alachua, Baker, Brevard, Bradford, Clay, Columbia, Duval, Dade, Hamilton, Madison, Marion, Nassau, Orange, Putnam, Suwannee, Saint John's, and Volusia. The record in this case covers 972 pages, the brief of- contestant 139 pages, and the brief of contestee 99 pages, making in all 1,190 pages of printed matter which your committee has had to examine, and which has been done with great labor. In the general election held in this district on the 7th day of Novem- ber, 1876, Jesse J. Finley and Horatio Bisbee, jr., were voted for to represent said district in the Forty-fifth Congress. And the question is, which of these gentlemen is entitled to the seat ? According to the FINLET VS. BISBBE. 75 returns of the precinct officers of the several coanties in said district the vote was as follows : Counties. 1 1 1,255 288 1,972 143 111 56 706 .199 315 126 901 717 1,468 5 2,331 8 614 329 1,082 962 1,521 1, 548 670 794 926 194 617 579 629 456 608 831 474 172 11, 481 11, 476 Alochaa 1,255 1,972 15 Baker BreTard Bradford Clay ; Colnmbia ■_ , Dnvol Dade •- Hamilton Madieozi Harioo Kassao Orange Patnam , Suwannee '. Saint Jolin'B Volnsia Total vote for each This return was acted upon by the canvassing-board of each county and the State board of canvassers. And after making several changes, which are not necessary to be mentioned here, the certificate of electiou was issued to the contestee, and he was sworn in and now occupies the seat in this House from the second district of Florida. * ^nilRfl The contestant within the legal time filed his protest and notice of contest, averring that the board of State canvassers had been guilty of gross frauds in canvassing the votes of said Congressional district, mak- ing up false statements by which the votes of said counties were, or some of them, falsely stated, and that the certificate of election was wrong- fully given to the contestee, &c. These averments need not be noticed by your committee, as they do not aflFect the merits of the case which is now under consideration. The prima-facie case having been settled by the House, the committee has nothing to do with the certificate ; but the contestant makes averments in his notice of contest which reach the merits of the case before us, the substance of which we will hereafter give, not wishing to incumber this report with a copy of them in full. The notice of cont^e.st and the answer thereto are not as carefully drawn as they should have been, but in the opinion of your committee the allegations therein are sufflciently broad and specific to embrace all the evidence in the record which your committee deem necessary to consider in reaching a correct decision on the merits. The substance of the allegations in the notice of contest which we con- sider material may be briefly stated as follows : 1st. That the returns of the election at the precinct of Archer No. 2, in the county of Alachua, in said Congressional district, were forged and false ; that about 219 votes were falsely and fraudulently added to the vote of contestee by the election offlcers of said precinct and returned, which were canvassed and counted by the county and State boards of canvassers. 2d. That the election ofiicers who conducted the election at Archer precinct No. 2, in Alachua County, in said district, were guilty of fraud in conducting said election, and made false and forged n^turns of the same, thereby making it impossible to arrive at the true vote of said pre- cinct, and demanding that the vote of said precinct be excluded. 76 DIGEST OF ELECTION CASES. 3d. That the election ofiScers, in canvassing the vote for Gongres* in said district, illegally and wrongfully excluded therefrom all the votes cast at each of the precincts of Darbyville and Johnson^ille, in the county of Baker, and demands that they be counted. 4th. That the election officers, in canvassing the vote for Congress in said district, illegally and wrongfully excluded therefrom the entire poll at Jasper precinct Ko. 2, in Hamilton County; that the true number of votes cast at said precinct were 504, of which 320 were cast for contest- ant, and 184 for contestee, and contestant demands that the same be «oanted. 5th. And contestant asks that a true count of all the votes be made as far as the same can be done under the evidence, and insists that if this is done it will entitle him to the seat. The contestee in his answer sets up a general and special denial, and avers, by way of counter charges, threats, intimidation, violence, and repeating at various polls in the district upon the part of the political friends of the contestant, and also that a large number of illegal votes were cast for contestant by non-residents, persons con- victed of crime, minors, non-registered persons, and foreign-born persons, who did not at the time of voting present their certificate of natural- ization, or a certified copy thereof,,or a duly sealed and certified copy of their declaration of intention to become citizens of the United States. Your committee, after this summary of the pleadings, will examine the questions of law and facts involved in the issues, and, as the tabu- lated statement given above arranges the counties in alphabetical order, your committee will consider the questions arising in the counties rn the same order ; and, 1st. As to Alachua County, Archer precinct No. 2: It is alleged by the contestant that the election returns from this precinct should be rejecteil, and this we believe is conceded by contestee, for the reason that said le- turns were forged, and do not show the true vote. The returns from this precinct, made by its officers, therefore, are to be considered out of the case. • The contestant further alleges and insists that not only the returns of this precinct must be rejected, but that the entire vote of the same must be excluded from the count, for the reason that the evidence is not such as to enable your committee to determine correctly what the true vote at this precinct was. But he insists further that if the com- mittee conclude that the vote of said precinct should be counted, in that case the vote must be counted as follows : For contestee 180 For contestant 141 Contestee's majority 39 Because he claims that the evidence tends more strongly to support this conclusion. Your committee are fully aware of the importance of the decision upon these questions, for upon it hinges the final judgment in this case. The evidence in regard to this poll is very voluminous, covering nearly 300 pages of the record, the result of the examination of over 300 witnesses of the parties. It being conceded, as we have already said, that the returns must be thrown aside, on the ground that they are false and forged, and your committee agreeing with that view, we are compelled to look to the other evidence in the case, in order to ascertain if possible what was the true vote. If the true vote can be ascertained with reasonable certainty. It must be counted. If it cannot l)e so ascertained and determined, then the entire vote of the precinct FINLET VS. BISBEE. 77 should be thrown out, and nothing counted for either contestant or contestee. The evidence proves that Green E. Moore, R. H. Black, and Floyd Dukes were the inspectors, and Thomas H. Vance the clerk, of the election held for Congress at Archer precinct No. 2, in Alachua County. Green K. Moore testifies that there was a poll-list kept, and thinks the names of all who voted were put down on the list ; says Vance kept it, who was clerk ; says he was present when the polls were closed, and says that there was a paper there which was signed by the inspectors in blank for the returns ; it was not filled out when signed. He says they counted the votes, but got in a hurry, as it was late, and did not fill up the returns with the number of the votes, but just signed the blank return. Does not know whether the return so signed was ever filled up or not. He says Thomas H. Vance took charge of all the papers. He took all the papers under his arm, among them the returns of said ]3olL He says the ballots were first strung on a string and then said Black corrected them. He, witness, held the ballots up and Floyd Diikea strung them. They were then put in the ballot-box and left strung. E. H. Black locked the box and gave him, witness, the key, and took charge of the box. The returns were not put in the box. Not certain the box was locked. Box fastened together, he thinks, with screws. He says that after the poll was closed and the ballots counted the result wa» publicly announced by E. H. Black. He is certain of this fact. Black announced that Stearns had received 180 votes, and that Drew had re- ceived 136 votes. Stearns was the Eepublican candidate for governor^ and Drew the Democratic candidate. He says that Black announced that there were 318 votes in all cast, buthe says 2 of these were destroyed because they looked like two tickets were folded together. He says that Black announced the true vote and gave it to Samuel C. Tucker. Say* he is positive that there was not more thau 318 votes polled there that day. This number did not agree with the number of ballots strung and counted and put in the box. Black counted 277 tickets in all that were put in the box. Says the result was ascertained by counting the poll- list and tally-sheet kept by the clerk, Vance The poll-list and ballots did not agree. The poll-list showed 318 names, two of which were not counted because two of the ballots were folded together, and there were- only 277 ballots. Ballots were counted as they stood on the poll-list. Says Black and Vance took the returns and ballot-box to Black's liouse. He lived in Archer. " When I next saw them after they left the voting^ place, 1 saw them at Black's house. They kept the returns and box there from about 11 o'clock p. m. until next morning about 3 or 4 o'clock,, when they took them to Gainesville, the county seat of Alachua County.. 1 went with them." When they got to Gainesvillewitness says he stopped at a fire in Court House Square, and Black took the box off in the di- rection of Capt. L. G. Dennis's house in Gainesville. After this witness heard Dennis at his own house tell Black to take the box away, as there had been one box thrown out by being at his house. This was betweea nine and ten o'clock the morning after the election. Black got to Den- nis's just at daylight. Witness says Dennis was a noted Eepublican politician at the time, and was a candidate for the State legislature Witness says the key to ballot-box was a common key, easily duplicated.. Key-hole not sealed. They had eight keys that fitted the box. Says that Black and Dukes went off from the polls during the voting and he, wit- ness, and Vance staid. When they returned witness and Vance went- out for dinner together. Witness says that Dukes could neither read 78 DIGEST OF ELECTION CASES. nor write; that he voted the Democratic ticket. Witness, Black, and Vance voted the Republican ticket. This is the substance of this witness's statements. (See Record, pp. 82-88.) Samuel T. Fleming testifies that he stood at the polls at Archer, No. 2, and took down the names of all persons who voted as they voted ; says he was there all day except about 26 minutes when voting was sus- pended for dinner ; says he kept a list of all who voted from the out- side of the room; the box was inside the room near window; sent the original list kept by him to secretary of state of Florida, " but have a correct copy of it with exception of one name"; and hero witness ex- hibited the copy, which was made part of his deposition, without objec- tion. This list contains the names of 305 persons who, he says, voted ; says he went there to take down the names of all persons who voted at that poll; did it at request of Democratic executive committee, and is positive he took down on his list the name of every person who voted from outside room that day ; says he was well acquainted with the vot- ing population who resided about the poll, and with the exception of four or five knew each man personally who voted there on November 7, 1876 ; says he knows that 500 votes were not polled at that poll that day ; says none voted from inside of house but the inspectors. (See Record, 'pp. 89 to 93.) Wade A. Gieger says he was at Archer precinct, No. 2, on the day of election; there before polls opened; there all day except during recess for dinner, and once after that about 20 minutes. Saw Fleming stand- ing near the window taking down the names of the persons voting ; was there when polls closed. Heard the announcement for governor but not the other candidates; R. H. Black announced from the window, in aa ordinary tone of voice, that Stearns had received 180 and that Drew^ had received 130 votes Witness went to Black's house and tried to get Black to take the box back to the house where the voting had been done and have it guarded with box No. 1; he feared Black would tamper with the ballots. Black told him before the election that he intended to pack the box if he had a chance; Black then thought witness was a Republican as he (witness) had been attending Republican meetings and had avoided Democratic meetings and he was understood to be a Republican ; was well acquainted wit^h Black, and thinks he was capa- ble of tampering with a ballot-box. George Blick testifies that he went to Archer, No. 2, on the day of election; was not there all the time. "I was inspector at box No. 1, which was in same building with box No. 2, being in the other end of the building; was at box 2 two or three times during the day, perhaps oftener." When they got through counting Black or Vance announced the vote; the announcement was that Stearns, for governor, had re- ceived 180 votes, and that Drew had received 136 votes, and then wit- ness went into the room where poll 2 was, and asked the inspector to let him see the tally-sheet; they then told witness that Stearns had re- ceived 180 votes and Drew 136 votes, and that there was very little dif- ference between their vote and the other candidates. Black and Vance took box off to Black's house ; witness went to Black's house that night and asked him to let witness put box No. 1 with his ballot box No. 2 in his house, and let witness sit there with him and guard the boxes until morning, when they would carry them to Gainesville. " He refused, and said he could take care of his box if I (witness) could of mine" ; witness then left. Witness was at. box No. 1 when announcement was made, in same building as box No. 2; there «'!»s just a partition between and two FINLKY Vfe. BISBEE. 79 planks were off of that, and the door between the two rooms was open. The building was about 36 feet long. (See Kecord, pp. 98 to 100.) Irving E. Webster, clerk of the circuit court of Alachua County, tes- tified that the ballot box of Archer, No. 2, was delivered to him about noou the next day after the election ; the key was delivered early in the morning. (Record, pp. 103 to 109.) Samuel 0. Tucker testified that he was sheriff of Alachua County^ and resided there twenty years; spent most of his time on election day at Archer, No. 2; was present when tally-sheet was being made and when it was added up; was near enough to see all that was done; did not keep a regular tally-sheet of his own, but counted over the tallies with Vance and put down in a memorandum of his own the total foot- ings-up of the tallies. While doing this witness would ask Vance if each result put down by him on this memorandum was correct, and each time Vance would say yes, they agreed with his (Vance's) own figures. Witness said he did not have the original memorandum, but had a true oopy made by himself, which he produced, and then was requested to state its contents, which he did, as follows: As shown by this memoranduni of mine : For governor, Drew received one hundred and thirty-six (136) votes; Stearns, for governor, received one hundred and eighty (180) votes ; for lieutenant-governor, Hull received one hundred and forty-one (141) Votes; Miiiitgomery, for lieutenant-governor, received one huudr>-d and seventy-six (176) votes; Finley, for Congress, received one hundred and forty-one (141) votes; Bisbee, for Cimgress, received one hundred and'eighty (180) votes; King, for State senator, received one iiundred and thirty-six (UMi) votes ; Walls, for State senator, received one hundred and eighty-one (181) votes; for" assemblyman to State assembly, Sparknian, Democrat, received one hundred and thirty-eight (138) votes; Dennis, Republican, received oue hundred and eighty (180) votes; Dudley, Democrat, received one hun- dred and forty-one (141) votes; Cessna, Eepubliean, received one hundred and «eventy-eight (178) votes; for Presidential electors, the Democratic electors received each of them one hundred and forty-one (141) votes, the'Eepublicau candidates for Presidential electors each received one hundred aud seventy-night (178) votes. Witness says that after footing ny the tally sheets Black announced the result through the window to the crowd outside. The announce- ment was made in a loud tone of voice as to vote for Stearns aud Drew, particularly loud as to Stearns ; he announced that Stearns had received 180 votes and Drew 136 votes. Witness requested him to make an an- nouncement as to the other candidates, but he replied that it was not necessary as there was only a difference of three or four votes. After the counting was over the hole in the box where the ballots were put in was sealed up; box was not sealed over the key- hole or anywhere else. In about fifteen minutes after the canvass was over witness saw the box at Black's house; it was not then sealed anywhere else than on top. Witness went to Black's house to get him to seal the box more securely and over the key-hole, and also between the body and the cover or lid of the box, as there was opening enough there with the box locked to insert ballots through, but Black refused to seal it any more than over the hole in the top. Black was the inspector who was to take the box to Gainesville, the county seat, to make the returns. (Record, pp. 109 to 112.) Floyd Dukes testified that he was one of the inspectors of election at Archer, No. 2, on November 7, 1876; he strung most of the ballots on a string when they were counted. Green R. Moore strung some of them; they were ail strung by witness and Moore. After they were strung they were counted over by Black and put back in the ballot-box. E. H. Black, one of the inspectors, read oft" names from the ballots as they were first taken out of box, and Vance, the clerk, kept the tally- «heets. After the counting was all over, Black or Vance, one, an- 80 DIGEST OF ELECTION CASES. rounced that Steams had got 180 votes and Drew 136 votes j there was something said about the other candidates getting about the same as governor, but witness does not recollect just what it was. Black told witness that he had to sign a paper, and he wrote witness's name, he supposes, and witness touched the pen to make his cross-mark. Wit- ness says he thought that the paper he signed at the time did show that Stearns had received 180 votes, and that Bisbee had received about the same, for Congress. First heard from Vance, the clerk, that vote for Stearns was 180, and 136 for Drew. (See Eecord, pp. 112 to 114.) Jesse I. Griffin testifies that he was at Archer precinct, No. 2, on the election day, November 7, 1876. Saw Samuel Flemming there that day, at the polls, taking the names of persons as they voted. He com- menced as soon as polls were opened; he was writing names on blank sheet paper with pencil. He left and went to dinner between 12 and 1 o'clock. Distance about thirty yards. Witness went with him. He was gone about twenty minutes. Witness thinks when he left he turned the paper and pencil over to Mr. Edge. When Flemming returned he took the paper and pencil again. Thinks they took recess for dinner ; did not have any announcement to that effect. Mr. Edge did not take down the names of any one while Plernming was at dinner. (See Eecord, pp. 116 to 118.) ^ Frank Edge testifies that he was at Archer, No. 2, on election day, in 1876; was at this poll the greater part of the day. Saw Samuel Flem- ming there. He was keeping a list of those who voted. He left the poll about one o'clock and went over to his mother's to dinner. Before he started he handed witness a piece of paper and pencil and told him that if any person voted while he was at dinner to take down his namej he was absent, after handing witness the paper, some fifteen or twenty minutes. There we're no votes cast while Flemming was gone. Wit- ness heard the announcement of the result of the vote. It was made by Sam Tucker and R. H. Black. They announced that Stearns received 180 and Drew 136 yotes. (Eecord, pp. 123 to 125.) The foregoing is the substance of the oral evidence given by the prin- cipal witnesses tending to prove that the vote at Archer precinct, No. 2, was, for contestant, 141 votes and for contestee 180 votes ; and The following is the substance of the oral evidence given by the prin- cipal witnesses tending to rebut the foregoing evidence and prove that the theory that contestant got 141 votes at said precinct and the con- testee got 180 votes is not correct. Thomas H. Vance testified that he was clerk of the election at box No. 2, in Archer, at election on November 7, 1876; voted there the straight Eepublican ticket; was there from the time the polls were opened until the result was known, except about ten minutes when they took recess for dinner. Did not count the ballots, but kept the tally-sheet. When tlie polls were closed the ballots were counted. Witness counted the names on his poll-list ; counted 535 names ; counted the votes cast for each candidate. Black counted the ballots, and witness asked him how many ballots he found. He said 535, which he had carefully counted over twice. Witness says that at the close of the count an announce- ment was made of the vote; that the Eei)ublican candidates had 39& votes and the Democratic candidates had 136 votes. This anuouiiceinent was made two or three times at the window. There was a ctrtifl.cate of the result made, and witness says he signed it. Then follows this ques- tion and answer: Q. Tell me, if yon can, what vote that certificate of result showed for each candi- date? — A. For Presidential electors, Frederick C. Huuipbries received three hundred FINLEY VS. BISBEE. 81 and nlnety-niuB votes; Charles Pearce received three hundred and ninety-nine votes; William H. Holden received throe hundred and ninety-nine votes; Thomas W. Long received three hundred and ninety-nine ; Wilkinson Call received one hundred and thirty-six votes ; R. B. Hilton received one hundred and thirty-six votes; Robert Bul- lock received one htindred and thirty-six votes ; and J. E. Yonge recei ved one hundred and thirty-six votes. For members of Congress, second Congressional district, Horatio Bisbee, jr., received three hundred and ninety-eight votes, and Jesse J. Fiuley received one hundred and thirty-seven votes. For governor, Marcellus L. Stearns received three hundred and ninety-nine votes; George F. Drew received one hundred and thirty-six. For lieutenant-governor, David Montgomery received three hundred and ninety-seven votes, and Noble A. Hull received one hundred and thirty-eight. For State senator, Josiah T. Walls received three hundred and ninety-nine votes, and Thomas F. King received one hundred and thirty-six. For members of the assembly, L.G.Dennis received three hundred and ninety-eight; W. K. Cessna received three hundred and ninety-seven ; P. B. Dudley received one hundred and thirty-eight; and J. M. Sparknian rec>ived one hundred and thirty-seven. Says the inspectors, E. H. Black and Green E. Moore, signed their names to the first return. Black signed Floyd Dukes's name for him, and Dukes made his mark, for he could not write. The second return R. H. Black signed first and asked Green E. Moore to sign his, and Moore said, "Black, sign it for me, for, damn it, my finger is sore." Black said to Floyd Dukes, " Daddy, I'll sign this for 3'ou — you can't write," which he did, and Dukes made his mark. Witness says that he has seen the list kept by Flamming at the poll on election day at Archer, No. 2, and had examined it. Said he saw persons vote at that poll on election day whose names are not on the list, and names Frank Dansy, Arch. Brown, Jerry Allen, Jesse Brown, and one other by name of Cooper. On cross-examination by contestee, this witness says he is positively certain that the number of votes stated by him in his exami- nation-iu chief is correct; then these questions and answers follow: Q. Are yon positively euro that you counted five hundred and thirty-five names on. the poll-list, as you have testified in your examination-in-chief ? — A. I am ;;I counted it twice to be certain. Q. Are you positively certain that the number of votes, .as stated by you iu your oxaminatiou-in-chief as having been given to each candidate and as the result of said election at box No. 2, Archer, was the true result of said election at that place, and that the number of votes so stated by you were certified by the inspectors of the elec- tion at said box, and by yourself as clerk, as you have stated in your examina.tion-in- chief ? — ^A. No ; I can't say that, for there was a mistake in making up the returns in the vote for member of Congress and for State senator ; all the rest, to the best of my knowledge and belief, are correct. Q. Were the number of votes stated by you in your examination-in-chief to have been given to the ditierent candidates, the number set out iu the certificate of elec- tion, given by the inspectors with yourself as clerk ? — A. There was a mistake as to member of Congress and State senator. Witness then says that but one announcement was made at the poll, and that Black made, and which he has already stated; says he does not know whether Frank Dansey's name was on the poll-list or not, for he don't know whether the poll-list is in existence or not ; says Black took charge of the box and Moore of the key; says he accompanied Black while in charge of the box ; went with him to his house, and from there to Gainesville ; went by a special train. The regular train was due at Archer at 9J o'clock a. m., and the special train went up to Gainsville about 2J or 3 o'clock a. m. Was with Black all the time. Says they (witness, Black, and Moore) arrived at Gainesville about 4^ o'clock, or a little after, and went to the court house. Found clerk's office locked. Then they went from there to Vance's house in Gainesville, and staid there with ballot-box until clerk's oflftce opened. After office opened, witness went with Black, and he delivered it to the clerk of the court; and witness is not certain whether he or Black handed him the returns- Clerk said Moore had not delivered to him the key. Says he was not H. Mis. 58 6 82 DIGEST OP ELECTION CASES. ■with Black all the time ; left him in witness's house twice to go to see if clerk's office was open. Thiijks Black left him at Black's house when Black went to get some whisky. Mr. Harvard and J. E. Miller wanted Black to take the box and leave it with box No. 1 till next morning, until the train came along. Black refused to do so. Says the box nor the returns were tampered with while witness and any of the in- spectors were together, from the time the polls closed until delivered to the clerk of the court. Witness says there was a mistake in the returns of the vote for Oongressmeu. Horatio Bisbee, jr., received 398 votes, and on the returns it is 399 ; Jesse J. i'inley received 137 votes, and on the returns it is 141 votes ; which', he says, makes a difference of 4 votes in favor of Finley which ought not to be there. Says he had left the room where the ballot-box was, about ten minutes before the train came, to go in to an adjoining room to go to bed, and was in the act of going to bed when he heard the train coming. Witness and Black took ballot- box to the clerk's office and delivered it to the clerk. Box was placed under witness's bed while at his house. He says that the parties who wanted Black to take the box where box No. 1 was and stay there with it, also wanted Black to let Mr. Blitch bring box No. 2 up to Black's house and leave it with Black, and have Blitch, who was inspector of box No. 1, stay with him. Black said he had nothing to do with box No. 1 ; the inspectors of box No. 1 must take care of their own box, and he would be certain to take care of box No. 2. (Record, 328 to 334.) E. H. Black testifies that he was one of the inspectors of the elec- tion at Archer, No. 2, on November 7, 18i8; was present all day at the polls excepting the time he went to dinner, which was about ten min- utes; was also absent at box No. 1, in another part of the building, about ten minutes, in company with Mr. Vance, the clerk, leaving Mr. Dukes and Moore at box No. 2. Dukes was a Democrat, Mr. Moore a Eepublican. Moore enjoyed the confidence of the Eepublican leaders of the county. The vote at Archer precinct had always been largely Eepublican. The Republican vote in 1872 was over 200 and the Demo- ci-atic vote was 40. The Democratic vote in 1874 was not over 30. Eepublican vote was nearly 300. Tlie Eepublican vote has gradually increased since witness lived in Archer. A large body of government land in that section has been homesteaded by colored people. Eepub- lican managers of the county anticipated a large increase, hence they established two boxes where there had been but one at Archer. Their anticipation in that respect was realized. Eepublicans were well organ- ized. There were in the different settlements near Archer five Hayes and Wheeler clubs. The roll of these clubs in the aggregate numbered about 700, all of whom intended to vote the Eepublican ticket. At the election, witness says at box No. 2, on November 7, 1876, 399 Eepub- lican to 1 -.0 Democratic votes were polled. Total vote 535. Was sur- prised to find the number of Democratic votes in the box, as he had observed the vote through the day. Could not recollect over ten Dem- ocrats who had voted through the day at box 2, and there were not more than 20 Democrats living in the neighborhood, and most of them had voted at box 1. He says he noticed no irregularity, illegality, or fraud ; saw the ballots taken from the box and assisted in the count, and announced the result as stated above. The return was made in accordance with the vote found in the ballot-box. It was signed by all the inspectors and the clerk ; no objection made. Moore and Dukes did not count the vote. They did not count the names on the clerk's list, nor number checked on poll-list. There was a Democrat present by the name of Flemming, who pretended to keep a list of the names of those FINLEY VS. BISBEE. 83 ■who voted. He, Flemming, was not present at poll during entire day ; was absent twice to witness's knowledge. Witness never said at any time that the vote was different from that announced at the polls. Says Democrats attempted to obtain possession of the ballot-box from him after the election was over. They demanded it from him in his house. The party who demanded it consisted of about nine or ten persons. The box was in his keeping ; delivered it the following day and got a receipt for it. Moore had the key. After the return -was rendered, and before the county canvass took place, I was ap- proached by Dr. E. D. Carew, a prominent Democrat in the precinct of Archer, who asked me if 1 didn't want to sell a piece of land that I owned at Archer. I told him I did. He asked what it was worth. I told him |300. He said he knew of a gentleman that wanted to buy it. He took his pencil from his pocket and wrote some figures on a newspaper, which I found to be an offer of |600 for my place, on condition that I would join Moore in his statement that the vote cast was at Archer, box No. 2, as fol- lows : 180 Bepublican and 136 Democratic. Moore had made such a statement in the form of an affidavit. (Eecord, 307 to 308.) Irving E. Webster, whose CTidence has heretofore been noticed, testi- fies that the box of Archer, N"©. 2, was brought to him by Black on the 8th Ifovember, 1876. The returus were in an envelope and sealed up ; box had a piece of paper over the hole in the cover, and sealed around the edges with sealing-wax; was also a similar piece of paper over the key- hole ; don't remember whether the poll-list was in the box or not, but it was returned to witness ; the registration-list was in the box ; poll- list may have been sealed up with the returns; says the poll-list was extracted from his office between the time of the county canvass and the session of the House committee (meaning the committee of this House who visited Florida during the last session of the Forty-fourth Congress). Kept the poll-list in his safe; it was an iron safe, and he kept it locked. Did not miss the poll-list until called for by the House committee. (See Record, 344 to 347.) Frank Danzy testifies that he was at Archer precinct, No. 2, November 7, 1876, and was the first man who voted at that poll on that day. (Rec- ord, 230-232.) Three hundred and eight colored persons testify that they voted at this poll, and that they voted the Republican ticket, in- cluding Bisbee. (Record, 130-340.) As this committee has already said, the foregoing contains the sup- stance of the oral evidence of the principal witnesses in regard to the vote of Archer precinct, No. 2. We do not desire, however, to be under- stood as saying that there are no other witnesses whose testimony is important; but, upon the contrary, there are many more witnesses whose statements tend to throw light upon the questions involved. In order to understand the case, the whole of the evidence in the record in regard to this poll must be read carefully and studied. The committee will now call attention to some of the importand questions. 1st. We will consider the question of fraud on the part of some of the election officers of this precinct. It will be remembered that R. H. Black, Green R. Moore, and Floyd Dukes were the inspectors, and Thomas H. Vance was the clerk, at said poll. That there was fraud committed by way of forging the returns by the officers of this precinct there cannot be any question, and is admitted by the contestee. But it is necessary to briefly review the evidence in order to come to a correct conclusion in regard to how the vote of the precinct shall be treated. The evidence proves that the election at this precinct was peaceable and orderly so far as the voters were concerned, as much so as usual at such places. After the polls were closed the votes were counted, and the result was determined by the election officers. The ballots were put 84 DIGEST OF ELECTION OASES. in the box, and it was looted, and the key given to Moore and Black, and Yance took the returns or whatever papers, if any, were signed by the inspectors and clerk, and the poll-list and tally-sheets, and took them to Black's house in the village of Archer, but a short distance from the place where the election was held. It must be borne in mind that it is proven that' Black, Vance, and Moore were all Republicans. Soon after it was known that Black and Vance had taken the ballot-box to Black's house the Democrats became alarmed for its safety, and they went, as the evidence shows, and made a request of Black at his house that he take the ballot-box down where box No. 1 was being kept by Mr. Blitch, who was inspector of the election at that box, and whose custody it was then in. But he. Black, scornfully refused to doso. They then requested him to allow Mr. Blitch to take box No. 1 up to his house and ])lace it with box No. 2, and he and Blitch to remain there together in charge of the two boxes until the next morning, and then take the train and take them to Gainesville, the county seat, and make the returns to the clerk. This proposition Black also refused in the same manner as the first. Both these propositions were perfectly fair, and in no way calcu- lated, if an hvnest man, to make him feel that his motives were impugned in a matter of so much public importance — one ujjon which the election of a President of a great nation might depend. And if he had been dis- posed to have acted honestly and fairly in his official duty he would have consented to such a fair and reasonable request. But dishonestly intending to carry out his fraudulent and corrupt purpose of forging the returns of Archer precinct, No. 2, he and his equally corrupt and ever- faithful friend and coconspirator in the execution of this crime against the purity of the ballot-box remained alone at Black's house in the sole custody of this box until about 3J o'clock next morning; when, at this very unusual hour, they took an extra train, which happened by accident to come along at that time, and went to Gainesville to make the return instead of waiting until OJ o'clock in the morning and then take the regular passenger-train, which would have carried them to Gainesville in ample time to make the return and before, in fact, they did make it; for the evidence of the clerk shows it was not made until 12 o'clock that day, and after box No. 1 had been returned by Blitch, who left Archer on the 9^ train. When they got to Gainesville they pretend to say they went to the clerk's office to make the return, it being but half after four o'clock in the morning, a very unusual hour indeed for men to undertake to transact official business with a public officer; but not finding the clerk in, they went to Vance's house, where he, Vance, resided in Gainesville. This is Vance's statement. And there Black put the ballot-box under the bed, and laid himself across the bed, and perhaps went to sleep in order to its more perfect security, as he claims to have been very watch- ful of it. But Green E. Moore, a Republican in good standing, who accompanied Black and Vance on their mission of fraud to Gainesville on their extra night train with the box key in his pocket, betrays these confederates. He swears that Black left him near the court-house in Gainesville, and went with the ballot-box in the direction of the residence of L. G-. Dennis, who lived in Gainesville, and who was a leading Republican and a candi- date for the legislature, and who was very officious in regard to the elec- tion at this poll, as the evidence shows. He was the leading member of the board of commissioners of Alachua County, which, under the laws of the State of Florida, had the power to appoint and did appoint the said Black and Green R. Moore inspectors at said poll, both being Re- publicans, and the third inspector was Floyd Dukes, who was a Demo- FINLET VS. BISBEE. 85 crat. But the evidence shows that he was an old colored man that could neither read nor write, thus securing the election of a Republican for clerk at said poll. And when the election board met and was about to select a clerk, it was found that this faithful Vance was present. He had, by accident, gone all the way from Gainesville, where we have already stated he lived, and Black and Moore at once selected him as clerk. No, this was not accidental, but a part of the fraudulent pro- gramme which had been marked out by L. G. Dennis, Black, Vance, and others, to tamper with the ballot-box at Archer Ko. 2, in the interest of their political friends. And this they accomplished to the extent of somewhere between two and three hundred votes, by causing their false and forged returns to be canvassed and counted for their political friends. That Black and Vance went to Dennis's house, or saw him the morning they got to Gainesville with the ballot-box and advised with him, your committee have but little doubt, and that his direction was followed in the completion of the perjury and forgery. However this may be, the double crime was committed. The Republican countj' clerk, with whom the box and returns were placed under the law, swears that all the time the county board of canvassers were canvassing the returns from this precinct, it appeared to him from the face of the returns that fraud had been committed in favor of the Republican candidates. Yet the connty canvassers, with the fact of forgery being patent upon the face of the returns from this precinct, counted the votes thus returned through this perjury and forgery. Another fact not to be overlooked is that the Congressional commit- tee, which was sent to Florida just before the so-called electoral count, searched for these returns of this precinct, but they could not be found. The clerk of the circuit court, in whose custody they were placed, swears that this was the first knowledge he had that they were missing. He says, however, that he kept them in an iron safe, and carried the key, and still he pretends to say that he does not know what became of them. At all events they are not to be found; and in the opinion of your com- mittee they were destroyed by some of the conspirators to cover up their crime. The poll-list, tally-sheet, and the return belonging to said poll are gone. Your committee is clearly of the opinion from the evidence that the election at this poll is tainted with frauds, the returns false and forged, whereby they showed that contestee got some two or three hundred more votes than were actually cast for him, which were canvassed and counted for him by the returning-boards. Your committee is therefore compelled to go behind these fraudulent returns and examine the evidence in the case, and ascertain the true A^ote, if it can be done, from the evidence. When the polls were closed and the votes counted, several witnesses testify that Black publicly announced from the window through which the ballots were received that Stearns, the Republican candidate for gov- ernor, had received 180 votes, and Drew, the Democratic candidate, had received 136 votes, and that the other candidates. Republican and Demo- cratic, did not differ from their respective candidates for governor more than three or four votes. This is one of the theories presented by con- testant; and it is argued with muce force, and we must concede that if the vote of this precinct is to be counted at all, the conclusion that the contestee received 180 votes and the contestant received 141 is the most reasonable one which can be drawn from the evidence. Green R. Moore, one of the inspectors, swears that there were, according to the tally -sheets and the poll-list, 318 votes cast at this poll, and that 86 DIGEST OF ELECTION CASES. two of those being folded together were destroyed, leaving but 316 ; and he is supported substantially by Floyd Dukes, Gergen Blitch, Tucker, and Edge; they say that Black publioly announced the votes as stated by Moore. Blitch testifies that the announcement made by Black of the result agreed with the tally-sheets kept by Vance, the clerk. Tucker, who was sheriff of the county at the time, swears that he counted over the tallies with Vance, and put down the total footings of the vote for each candidate in a private memorandum of his own, and as he did so, would ask Vance if each was correct, and Vance answered it was. And Tucker makes a copy of this memorandum a part of his evidence, which shows that contestee received 180 votes and contestant received 141. Flemming swears that he stood at this poll with pencil and paper all day, except about twenty minutes when he was at dinner, and took down the names of every person who voted from the outside the room occupied by the election board. He says that no voting was done while he was absent, and he is corroborated in this statement by Edge, with whom he left the pencil and paper while he went to dinner, with instruc- tions to take down the names of all who voted during his absence. Edge says no one voted during Flemming's absence. Flemming also swears that he was acting under the direction of the Democratic exec- utive committee in taking down the names ; that he was requested to attend the poll and do so. And he says that there were but 305 votes polled from the outside of the room in which the election was held. If to this is added the four votes which it is reasonable to suppose were cast by the officers of election in the room, we have 309 as the total number according to his evidence. He also makes a copy of the list of names so kept by him a part of his evidence. This evidence, together with the other evidence in the record which supports it, if standing alone, would strongly tend to sustain the theory that there were about 318 votes cast, or that contestee received 180 and contestant received 141 votes. The vote, even under this theory, cannot be exactly ascertained, if there was no other evidence in the record in regard to the number. But Vance, the clerk, swears that he kept the tally-sheet, and that there were 535 names on the poll-list, which he carefully counted twice, and that an announcement was publicly made that the Eepublican can- didate received 399 votes, and the Democratic candidate had received 136 votes. He says this announcement was made two or three times at the window. Then a certificate was made of the vote and signed by the inspectors, and by himself as clerk, and that this certificate showed that contestee received 398 votes, and contestant 136 votes, and then testifies as to the manner in which the duplicate certificates were signed (see his ev.). He afterwards qualifies this statement by saying that there was a mistake in the certificate as to the vote for Congress and State senator, and that all the rest were correct. Then he says that but one announce- ment was made at the polls, and that was made by Black, contradicting his first statement upon this point. Again, he says the returns for Con- gress showed that Bisbee received 399 votes and Finley 141, but that this was a mistake; that their true vote was 399 and 137, respectively, which he says makes a difference of 4 votes between the true vote and the vote as shown by the returns.* Black swears that he was one of the inspectors of this election ; that the Eepublican vote was 399 and the Democratic vote was 136; total FINLET VS. BISBEE. 87 vote, 535; and that he announced that as the vote, and that the return was made in accordance with the vote found in the ballot-box. Frank Danzy swears that he was the first man who voted at that poll; that he voted at the window from the outside. It will be observed that Danzy's name is not on Flemming's list. Danzy is corroborated by other witnesses on this point, which tends to weaken the force of Flemming's list. Three hundred and eight colored witnesses swear that they voted the Eepublican ticket at that poll. Their evidence shows that but verj' few of them could either read or write, most of them making their cross to their depositions. They had, of course, to rely upon others for informa- tion as to the kind of tickets they voted. They may have been deceived, many of them, or they may have been induced, some of them, to make the statements under oath which they did; it is not for your committee to say ; but it is enough to say that their evidence greatly tends to in- crease the doubt as to what is the true vote of this precinct. It cannot be true that there were 535 votes polled at this precinct or box, and the statements of these last-named witnesses are in harmony with no other theory of the case. The evidence shows that there was but one box or place of voting at Archer until 1876; that box Ko. 2 was established for the election of that year for the first time. It further shows that the entire vote in 1874 at that precinct was only 318, just two votes more than Moore says was counted by the inspectors at box No. 2 in 1876 ; and if you add the votes cast at box l^To. 1 in 1876, about which there is no controversy, to the vote at box No. 2, as stated by Moore, you have a total vote of 468 at this precinct in 1876, an increase of just 150 votes — quite a large increase for two years. But if you take the statements of Black and Vance as to what the vote was at box No. 2 and add th at to the vote of box No. 1, you have a total vote of 690 in 1876 — a net increase over the vote at that precinct in 1874 of 372 votes, more than two to one ; a very extraordinary increase in so short a time for a country precinct. And this increase is not satisfactorily accounted for by the evidence. Black undertakes to explain it by saying that there was a large body of gov- ernment land in the neigborhood which was homesteaded by colored people since 1874. That is a good way to account for the increase; but he is contradicted in this statement by Danzy and several other wit- nesses, who swear that there had not been but very little increase in the population since 1873. This theory of the case and the evidence of Black fall to the ground when measured by the evidence. The theory of con- testee, that the Democratic vote at this precinct was greatly in excess of what it should have been, and must, therefore, have been fraudulent, is not well founded, as wiU be seen when the evidence is carefully ex- amined. Indeed it does not take a very careful examination; for if &aud was committed at this precinct, and there is no doubt on that point, it was committed by contestee's political friends, and no one would hardly believe that they would have committed it in favor of his political opponent. His political friends had full and complete control of the election at this poll. Black swears that he was greatly surprised at the large number of Democratic votes at this precinct. He says that the Republican vote in 1872 was over 200, and at the same election the Democratic vote was 40, The contestee, in his printed argument, page 25, corrects this error in Black's evidence, and fixes the Eepublican vote at 100 and the Demo- cratic vote at 40. Black says that in 1874 the Democratic vote was not over 30, the Republican nearly 300. In this he is nearly correct. He says that the increase in the republican vote was anticipated, and for that 88 DIGEST OP ELECTION CASES. reason box No. 2 was established, not anticipating an increase in Demo- cratic votes. And the contestee adopts the false theory that many per- sons have advocated recently that it is hardly possible for a colored voter to vote the Democratic ticket. But this theory is greatly at fault so far as this precinct is concerned, for it appears from the evidence that at box 1, in 1876, the Democratic vote was 98, and the political friends of the contestee having complete contrbl of box No. 2, as we have already said, returned for contestant, a Democrat, 141 votes, making a total Democratic vote of 239 at that place as against 25 two years before. It is therefore argued by the contestee that the Democratic vote at box 2 was greatly increased by fraud. It is hardly to be supposed that the political friends of the contestee would commit a fraud which would increase the vote of his political oppo- nents. The legal presumption is the other way, and as there is no evi- dence to support this argument it must fall. There is another fact in connection with this poll to which we wish to call attention. Moore says that Black counted 277 tickets in all that were put in the box, and Web- ster, the clerk of the court, swears that when the box was opened by the county board of canvassers, that 277 was the exact number of ballots found in the box. This is another prominent feature in the evidence tending to produce uncertainty as to the true vote, and shows, if true, that the ballots were tampered with before they were counted. But there is still another view of this question assumed by the contes- tee; he insists that he has proven by3()S persons that they voted for him at Archer No. 2. He claims that he has proven this by the mouths of the ^'oters, outside of the returns, and that therefore he is entitled to have them counted for him in case the returns are set aside for fraud. And as the contestant has failed to introduce any witnesses to testify that they voted for him at said poll, that therefore he, contestant, is not en- titled to have any votes counted for hirn at said poll; thereby giving contestee 308 majority at said poll instead of 258 majority fraudulently returned for him by bis political friends, thus enabling him and them to succeed by their own wrongs to a greater extent than ttieir criminal acts standing alone would justify. But the statements of these 308 witnesses will hardly sustain this assumption by the contestee. A large number of them do not testify that they voted for contestee, but that they voted the Eepublican ticket; many of them could not read, as we have already said, and therefore they had to depend upon others for the kind of tickets they voted, and were liable to be deceived; but however this may be, your committee is of the opinion that this view of the case cannot be sustained under the proof. The proof shows that contestant did get votes at said poll, and that he probably got somewhere from 136 to 141. Your committee admits that if there was no evidence other than the returns, they being fraudulent and void, proving that the contestant re- ceived votes at said poll, then it would be unquestionably right to count the vote clearly proven to have been cast for contestee. But when the proof shows that a large number of votes were, in point of fact, cast for one candidate, as for the contestant in this case, but the number not being sufficiently certain to enable them to be counted, it seems to your committee to be manifest injustice to count the votes of his opponent, thereby increasing his majoi'ity to the full number of votes so counted. There is no rule of law or equity that will justify such action, but it would be a clear case of uncertainty in the proof, and stands in the same position as to uncertainty as the other positions assumed, and the entire vote must be rejected. PINLEY VS. BISBEE. 89 Your committee has therefore come to the following conclusions as to this precinct: Ist. That the result of the election as shown by the returns is false and fraudulent. 2d. That from the other evidence in the case it is impossible to ascer- tain the true vote of said poll. The vote must, therefore, in the opinion of your committee, be entirely rejected. Waldo precinct, Alachua County. Oontestee asks that the returns from this precinct be rejected for the reason that the inspectors grossly disregarded the election law, so as to render the returns unreliable, and because said inspectors allowed pas- sengers on the railway to vote without regard to residence, age, or registration, and that a large number of such persons did so vote for member of Congress with the knowledge, consent, and connivance of the inspectors ; such persons not being citizens of the State of Florida. All the facts shown in regard to this subject will be found in the evi- dence of Burr, Eecord, p. 343; IS'oyes, p. 362, and Earle, p. 364. And after a careful examination of their testimony your committee is satis- fied that there ,was no disregard of the election laws by the inspectors at this precinct which indicates any desire to commit fraud, and that the testimony is such that the true vote can be clearly ascertained. Tour committee also find that the 20 persons who voted at this precinct who did not reside in the county only voted for electors for President and Vice-President of the United States, with the exception of one, whose name is William Ford, who voted for contestant for Congress. The evidence shows that all other persons whose names were not on the reg- istration-list were sworn before they were allowed to vote. In the opinion of your committee, after deducting the vote of said William Ford from the vote of contestant, the vote as returned from this precinct should be counted. Wacasassee precinct, Alachua County. The allegations in regard to this precinct on the part of the contestee are not sustained by the proof. He does not attempt to prove any, except the one in regard to intimidation, and minors voting. The proof entirely fails to show intimidation, in the opinion of your committee. Wassou, the Eepublican inspector, and only witness who testifies in regard to this precinct, says he doubted some of the voters who voted were of age, as he did not know them, but that they made oath that they were 21 years of age. We are of the opinion that this precinct should be counted. This, we believe, disposes of all the questions of fact at issue between the parties in regard to the election in Alachua County, with the excep- tion of the questions arising under the constitution of the State of Florida in regard to the rights of foreign-born persons to vote, and the ques- tions arising under the registration laws of said State. And as these questions will have to be met in the investigation of the facts arising iu some of the other counties, they had just as well be disposed of here by the committee; and — 1st. As to the questions arising under the constitution in regard to foreign- born citizens. The contestee alleges that seven votes in Alachua County, five in 90 DIGEST OF ELECTION CASES. Columbia County, ten in Ifassau County, twelve in Putnam County, and fifty in Duval County should be rejected on the ground that they were alien born, and did not at the time they voted present certified copies of their naturalization papers, or of their declaration of intention to become naturalized. < On a careful examination of the evidence, your committee find that all of said voters had either been naturalized or declared their intention to become so, with the exception of one in Alachua County and six in Duval County. Your committee also find from the evidence tbat said voters were not challenged, and were not either requested or required to produce their naturalization papers by the officers conducting the election at the various precincts where they voted. It is upon this state of facts that the question is presented whether these persons were qualified voters under the constitution and laws of Florida, The qualifications of voters in Florida are prescribed and defined in section 1 of Article XIV of the constitution of that State, as follows : Sec. 1. Every male person of the age of twenty-one years and upwards, of whatever race, color, nationality, or previous condition, who shall at the time of oflEering to vote be a citizen of the United States, or who shall have declared his intention to become such in conformity to the laws of the United States, and who shall have resided and had his habitation, domicile, home, and place of permanent abode jn Florida for one year, and in the county for six months next preceding the election at which he shall offer to vote, shall in such county be deemed a qualified voter at all elections under this constitution. (See Acts of 1868, containing the State constitution, p. 211.) The third section of the same article of the constitution, and the one on which the contestee relies, does not create any additional qualifications for voters, but only prescribes a regulation. It reads as follows : Sec. 3. At any election at which a citizen or subject of any foreign country shall ofifer to vote under the provisions of this constitution, he shall present to the persons lawfully authorized to conduct and supervise such election, a duly sealed and certi- fied copy of his declaration of his intention, otherwise he shall not be allowed to vote. And any naturalized citizen offering to vote, shall produce before said persons law- fully authorized to conduct and supervise the election, the oertifioate of naturalization, or a duly sealed and certified copy thereof, otherwise he shall not be permitted to vote: (Acts of 1868— constitution, sec. 3, pp. 211-212.) In the opinion of your committee it is clear that section 1 of Article XIV prescribes and defines all the qualifications of voters, and equally clear that section 3 does not create any additional qualification. The qualification prescribed by section 1, in regard to foreign-born persons, is, that at the time they offer to vote they shall either be citizens of the United States, or shall have declared their intention to become such; while section 3 does not create any additional qualifica- tion, but only undertakes to prescribe the mode of proof, in case the right of such persons to vote shall, at the time they offer to vote, be disputed. Such is the reasonable interpretation of these two sections of the con- stitution of Florida, when taken and construed together. Moreover, this is the construction given by the first legislature in the State of Florida, which convened under the constitution of 1868, and it is to be observed that very many of the members of said legislature were also members of the convention that formed the constitution, and your committee are advised that this construction has been acquiesced in by every legislature that has convened since that time. The legislature of 1868 treated and construed the third section of Article XIV of the constitution as being merely directory, as will be seen FINLEY VS. BISBEE. 91 from the sixteentli section of the act of August 6, 1868, which provides as follows : Sec. 16. If any person offering to vote shall be challenged as not qualified, by any inspector, or by any otlier elector, one of the board shall declare to the person challenged, the qualifications of an elector. If such person shalf claim to be qualified, and the challenge be not withdrawn, one of the inspectors shall administer to him the following oath : " You do solemnly swear that you are twenty-one years of age; that you are a citizen of the United States (or that you have declared your intention to become a citizen of the United States according to the acts of Congress on the subjfect of naturalization) ; that you have resided in the State one year, and in the county six months next preceding the election ; that you have not voted at this election, and that yon are not disqualified to vote by the j ndgment of any court ;" and if the person chal- lenged shall take such oath he shall be allowed to vote. (Pamphlet acts 1868, v.. 5, sec. 16.) It is shown by the testimony in this case that none of these alien-born voters, except one, were challenged ; that their naturalization papers were not demanded; that they were allowed to vote without question, and that they were in fact (with the exception of seven), at the time they voted, either naturalized citizens of the United States, or had de- clared their intention to become such, as required by section 1 of Article XIV of the constitution of the State. And your committee are of the opinion that, as they are proven to have possessed the qualification of citizenship or of having declared their intention to become citizens as required by the constitution, their votes should not be rejected, and they deprived of the highest privilege of an American citizen, which they had acquired by the abandonment of their native land, and by the sol- emn renunciation of their native allegiance. It is the settled law of elections that where persons vote without chal- lenge, 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 on the party denying their right to vote. In this case, so far from the evidence showing that the persons in ques- tion were not entitled to vote, it shows that they were either naturalized, or had declared their intention to become so, and the contestee has failed to prove anything to the contrary. " It is quite settled," says Mr. McCrary in his work on elections, "that where one who is alien- born has voted at an election, the lata presumes that he has been naturalized, until the contrary appears." (McCrary, sec. 294, citing ISTew Jersey case, 2 Cong. Cases.) It is therefore seen that a person who has voted is presumed to have been qualified until the contrary is shown. Mr. McCrary, in section 62 of his Treatise on Contested Elections, says, that the contrary may be presumptively shown by proof that the voter has failed, to produce the proof required by law before voting; in which case it is incumbent on the person claiming his vote to show afQrmatively that he was a qual- ified voter. (McCrary, sec. 62.). This has been done by the contestant in all the cases of this class, ex- cept in the few instances already mentioned. Your committee also find it to be the law, that " evidence which might have been sufficient to put the voter on his explanation if challenged at the polls, is not deemed to be sufficient to prove a vote illegal after it has been admitted." (McCrary, sec. 371.) Section 1 of Article XIV of the constitution of Florida defines and determines the qualifications of voters in that State, while section 3 of the same article only prescribes a regulation; and it is a settled prin- 92 DIGEST OF ELECTION QASES. ciple of law, that the right to vote must not be impaired by the regula- tion. (McCrary, sec. 8.) It appears from the evidence that the larger portion of these alien- born Toters had been naturalized, and, so far as they are concerned, the question is conclusively settled by section 1 of the fourteenth amend- ment of the Federal Constitution, which contains the following pro- vision, to wit: "That all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside"; and "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." After having fully considered both the law and the facts of the case, your committee are of the opinion that none of these votes should be rejected except one in Alachua County and six in Duval County, in re- gard to whom the contestant has not shown afilrmatively that they were either naturalized or had declared their intention to become so. 2d. As to the question of registration under the laws of the State of Florida, the contestee alleges, in his answer, that in several of the coun- ties in said district a number of persons voted whose names were not found on the registration list of the county in which they voted. Section 7 of the election law of the State of Florida provides for the registration of the voters in the several counties of the State, and the manner of doing the same. The clerk of circuit court of each county is required to prepare a suitable book for the registration of the names of the electors residing in his county; that the oath required to be taken by the electors shall be written or printed therein; that the names of the electors shall be alphabetically arranged in said book, and the date of registration, &c. Section 9 of the same law provides that the board of commissioners of each county must meet at the clerk's office in their respective coun- ties within thirty days preceding the day on which any election shall be held, and examine the list of registered electors, and erase therefrom the names of such persons as are known or may be shown to their sat- isfaction to have died or ceased to have resided permanently in the county, or otherwise becoming disqualified to vote. This section gives the board of commissioners a large discretionary power. They may erase names from the registration-list at discretion. This would be a very dangerous power indeed, and might deprive many electors of their right to vote by having their names wrongfully stricken or erased by the board of commissioners from the registration-list, were it not for another provision of the law which provides that if the voter " on offering to vote," in case his name is not found on the registration- list, " will take an oath that his name has been improperly " struck off from " the list of registered voters, and shall take the oath required to be taken by persons whose right to vote .shall be challenged, such per- son shall have the right to vote." Now it is clear that if a person offering to vote, whose name has once been on the registration list of the county, but which has been wrong- fully erased therefrom by the county commissioners, takes the oath that his name has been improperly erased, that he is then legally entitled to vote, and if he does vote, possessing the other qualifications under the law, his vote must be counted. The contestee does not aver for whom these non-registered voters, which he insists are illegal, cast their votes, neither does he undertake to prove for whom they did vote, but he asks that they be deducted from the vote of the contestant. This, of course, can- not be done. But under the rule it does not follow that illegal votes FINLEY VS. BIS BEE. 93 must be counted in making up the true result, because it cannot be ascer- tained for whom they were cast. 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 divis- ion, and not from the candidate having the largest number. (McCrary onElections, p. 223; Shepherd t). Gibbons, 2 Brewster, 128 ; McDaniel's Case, 3d Penn., L. F., 310 ; Oushiug's Election Case, 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. (McGrary, p. 223.) This is, perha))s, the best rule that can be adopted in such case. It is manifest, however, that it may sometiaies work a great hardship; for the truth might be, if it could be shown, that all the illegal votes were cast for one of the candidates, while it is scarcely to be presumed that they would ever be divided between the candidates in exact proportion to their whole vote. But the rule that would deduct them all from either one of the candidates, in the absence of proof as to how the illegal votes were cast, is much more unreasonable and dangerous. The above rule is perhaps the safest one to be adopted in a court of justice, where there is no power to order a new election, aud where great injury would result from declaring the office vacant. But it is manifest, as we have already said, that it might work a great hardship. And in a legislative body, having the power to order a new election, it is safer, in the opinion of your committee, and more conducive to the ends of justice, to order such new election, than to reach a result by the application of such a rule. (McCrary, pp. 224, 22.i.) Under the rules above referred to, it may be that the averments in the answer, by a very liberal construction, are sufiBcient to let in the proof of contestee, to show that illegal votes were cast, on the grounds averred. Your committee will therefore consider the evidence, and determine whether it proves that illegal votes were cast under the reasons assigned. The contestee offers in evidence the certified copies of the registration- lists of the counties; also the poll-lists of the priecincts of said counties; and he invites a comparison of the names on the poll-list with the names found on the registration-list, and insists that the votes of all persons whose names appear on the poll-list as having voted, but whose names are not found on the registration -list, be declared void, for the reason that such votes are illegal. Your committee does not agree with this view of the question. If a person vote in a county in Florida, having all the qualifications of a voter of said county except that his name has never been registered in said county, his vote, in the opinion of your committee, would be illegal, or if the name of such person having once been on the registration-list of said county, but having been erased therefrom by the board of commis- sioners, afterward cast his vote without having first taken the oath that his name had been improperly stricken " off from" the list of registered voters, his vote would also be illegal. But suppose we examine the poll- list and find the name of a voter thereon as having voted, and we then turn to the registration-list and find his name is not on that, can it there- fore be said that he voted illegally ? Certainly not. 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 — 1st. That the acts of an officer or officers of an election within the scope of this authority are presumed to be correct and honest until the contrary is made to appear, and therefore that they as such officers would not receive an illegal vote. 94 DIGEST OP ELECTION CASES. 2d. That the presumption is always against the commission of a fraud- ulent or illegal act, and, therefore, that a man would not cast an illegal vote. (McCrary on Elections, sec. 87-440; Little v. Eobins, 1st Bart- lett, p. 138; Gooding v. Wilson, Forty-second Congress.) This presumption must be overcome by positive proof. Take the case of a voter. His name is on the poll-list of a certain precinct showing that he voted at said precinct; his name, however, is not found on the registration-list. These facts are not sufficient to prove that his vote is illegal. They do not overcome the presumption of law arising in favor of the legality of his vote under the above rules. His name may have been improperly erased from the registration-list by the county commissioners, and he may have taken his oath to that effect before having deposited his ballot in the ballot-box, and the legal presumption is that he did; and in that case his vote would be legal if his name had ever been on the registration. The certified copy of the poll-list is evi- dence that he voted. But a certified copy of the registration-list after it has been revised under the law by the board of commissioners is not evidence of the fact that his name was never on the registration, for it may have been erased therefrom by said board, and then it would cease to be a part of the record of registration, and a certified copy of the record of registration would not contain his name, neither would it show that his name had been erased therefrom; for the law of Florida does not provide that a record of the names of persons erased from the registration-list shall be made. There is no legal way of preserving them on the record. The fact cannot be proven by the record, and cer- tainly cannot be proven by the certificate of the clerK attached to what purports to be a copy of a record which has no legal existence, for the clerk can only certify to records in such case, and his certificate to a fact in this case, outside of the records legally in his custody and of which he is legally authorized to give certified copies under his hand and seal, amounts to no more than the certificate of a private individual to a given fact. The fact may be true, but the certificate is no evidence of it. Therefore, the fact that the name of a person who is shown to have voted never was on the registration list, must be proven in the same manner you would prove any other fact not of record. The contestee, relying upon the certified copies of what he claims to be the list of per- sons whose names have been erased from the registration-list to prove the facts they contain, mast fail on this point. But the contestee undertakes in another way to prove that the votes of persons whose names appear on the certified copy of the poll-list of a particular precinct as having voted, and whose names do not appear on the certified coi)y of the registration-list of the county, are illegal. And to do so, he introduces H. Jenkins, jr., and Ed. Higgins as witnesses to testify, who, it is claimed, spent two months in gathering the facts in regard to this question. We will consider the evidence of these witnesses. 1st. As to the statement of H, Jenkins, jr. He swears that the paper handed him, marked Exhibit A (found on page 650 of the Record), is a list of persons who voted at People's Mill, No. 4, Jasper, No. 2, Bennam's Mills, No. 7, and White Springs, No. 3, precincts in Hamilton County, in said district, whose names have been stricken from the registration-list of said county. " This," he says, " I have ascertained by the examination of certified copies of poll-lists of the precincts named, the registration- list of the county, and a list of the names of persons who have been stricken from the registration-list, all certified to hy the clerk of Hamilton County, Florida." The contestee offers the paper in evidence. FINLET VS. BISBEE. 95 Kow, as your committee has alreads' said in effect, this paper marked Exhibit A is not evidence under the law of Florida, and we know of no rule of law which would make it evidence for the purposes for which it is introduced, or indeed, any other purpose. Witness says it is a list of persons whose names do not appear on the registration-list. How does he know this fact? He says he knows it by an examination of copies of the poll-lists, registration-lists, and a certified copy of a list of names stricken from the registration-lists. Your committee has already decided that a certified copy of a list of names stricken or erased from the registration-list is not evidence for any purpose in this case. If it was, oral evidence is not inadmissible to prove its contents. The statements of this witness, therefore, in regard to the contents of the certified copies of the lists to which he refers cannot be considered. The statements of the witness Ed. Higgins are to the same effect. He states that he has carefully examined the certified copies of the reg- istration and poll lists, and a list of names stricken from the registra- tion-lists, "awfl! by examination of other papers which have been placed on file in connection with tliese exhibits,^ in regard to the election in the counties of Suwannee, Putnam, Clay, Volusia, Orange, Alachua, Colum- bia, Bradford, and Hamilton, in said Congressional district, and from this examination and comparison of these papers the witness iindortakes to swear that certain lists marked Exhibits A, B, C, D, B, F, G, H, and I contain the names of persons who voted in these counties, whosp names do not appear on the registration-lists of said counties. These statements made by the witness are inadmissible. The papers them- selves are the best and only evidence of what they contain, if they are admissible for any purpose. The committee must make the comparison and cannot take the statements of the witness as to the result of his comparison. Your committee is of the opinion that this proof is insufficient to prove that these per^sons voted illegally whose names are not found ou the registration-lists of their respective counties. If they took the oath that their names had been improperly erased from the registration-list — and the proof thus far is insufficient to overcome the presumption that the^ did — their votes are legal. The contestee undertakes to overcome the presumption in favor of the legality of this class of votes in another way. On some of the poll-lists of the precincts in these counties is found at the end of some of the names of the persons voting ,these words, " JS'ot sworn." At the end of others the word " Sworn." Now, it is contended by contestee that whenever you find a name on the poll- list of any precinct with the words " not sworn" written after it, which name is not found on the registration-list of the respective county, that the vote of such person is illegal. This position cannot be main- tained, for reasons which we have heretofore stated. But we will further say that the law' does not authorize the election officers, or either of them, to write the words " not sworn " or " sworn " on the poll-list after the names of the voters who have voted and whose names are not found on the registration-list of the county in which they vote, whether such persons were sworn or not before they voted. The writing of these ■words are therefore unofficial acts, and not a part of the poll-list under the law, and not evidence, and cannot be made so by a certified copy of the poll-list, as is here attempted to be done. It would be a very dan- gerous rule, indeed, which would permit everything which appears on the face of a record to become evidence, whether placed there by au- thority of law or by the unofficial acts of irresponsible persons. How 96 DIGEST OF ELECTION CASES. these words came to be written on these poll-lists, or by whom they were so written, the evidence does not show. But it is enough for your com- mittee to know that they were not placed there pursuant to any law, and cannot be considered as evidence. Tour committee is, therefore, of the opinion that the evidence does not prove that the votes cast by persons whose names were not found on the registration-lists of the counties in which they voted are illegal. The evidence does not pr6ve that they did not take the oath required by law in such case. There being no further questions affecting the vote of Alachua County, it must be counted as follows : Deduct from contestant's vote, as given in the tabulated statement in the fore part of this report, 141 votes returned for him at Archer precinct, No. 2, and 1 vote cast by William Ford, a non-resident, at Waldo precinct, 1 foreign vote, in all 142. And deduct from the vote of con- testee, as shown by the same statement, the 399 votes returned for him at said Archer precinct, No. 2, and the remainders will be the true vote of the county. BAKER COUNTY. The principal question in regard to the election in this county is whether the returns from the precincts of Johnsville and Darbyville, in said county, shall be counted. That the returns from these precincts are regular will appear from the inspection of the returns themselves. (See Exhibits B and D, Eecord, pages 49-51.) Why these returns were rejected by the canvassingboards your committee heed not determine, as that question is not necessarily before us. But it is our duty to ascer- tain the true vote of these precincts if we can do so. And in order to do so your committee will go behind all returns and look at the facts, if necessary. That the returns from these two precincts should have been counted by the canvassiug-boards, your committee can have no doubt after a careful examination of the evidence in regard to that point; and That the election at both of said precincts was fairly, peaceably, and honestly conducted is abundantly shown by the testimony of Edward Eowe and William Noble, inspectors of election at Darbyville, and Gor- don S. Taylor and W. S. Cobb, inspectors at Johnsville. They testify as follows : Deposition of Udioard Rowe. Edward Eowe, of the county of Baker, being duly sworn, deposes and says: Question. What is yonr name ? — Answer. Edward Eowe. Q. Where do you reside? — A. In Baker County, State of Florida. Q. Where were you on the 7th of November last, at the general election in the State of Florida? — A. At the Darbyville precinct, in Baker County, in said State. Q. Was there an election held there that day for member of Congress and other officers. Federal and State ? — A. Yes, sir. Q. Wore yon or not an election officer at that precinct on that day ; and, if so, ■what office did you hold ? — A. I was one of the managers of the ■election at that pre- cinct. Q. Were you sworn as such manager? — A. Yes, sir. Q. Were you there all the time during the election on that day? — A. I was, and served as a manager or inspector. Q. Who were the other managers and clerk at said precinct at said election? — A. Mr. Elisha Green and Mr. William Nobles were the inspectors, and John Molvor was clerk. Q. Was the election there on that day peaceable and fairly and honestly con- ducted? — A. It was. Cross-examination : Q. Did any one vote at that precinct on that day that was not a registered voter? — A. If there -was, I did not know it. FINLEY VS. BISBEE. 97 Q. Did or did not electors at that precinct have tickets taken out of their hands by force, and other tickets forced upon them to vote? — A. If there was, I did not see anything of it. Re-examined by contestant : Q. Were you in a position where yon could look out upon the voters around the polls during that day 1 — A. I was. his EDWARD + ROWE. mark. Witness: John Herndon, County Judge, Baker County, Florida. Deposition of William Nobles, William Nobles, being duly sworn, deposes and says : Question. What is your name? — Answer. William Nobles. Q. Where do yon reside? — A. In Baker County. Q. Where were you on the 7th day of November last ? — A. I was at Darbyville pre- cinct, in Baker County. Q. Was there an election held there on that day for governor, lieutenant-governor, Presidential electors, and member of Congress for the second Congressional district of Florida? — A. There was. Q. Were you not an election officer at that precinct at said election? And if so, state what office it was. — A. I was manager and inspector. Q. Were you duly sworn as such manager and inspector? — A. I was. Q. Was the election there on that day peaceable and fairly and honestly con- ducted? — A. It was. Q. Do you remember who were the other inspectors at that precinct? — A. Mr. Green and Mr. Rowe. Q. Who was the clerk at said election? — A. Mr. John Mclvor. Cross-examined : Q. Who administered the oath to you as inspector? — A. I do not remember who administered the oath to me as inspector, but I know I was sworn as such. Q. How do you know? — A. I was sworu to see that the election was conducted fairly. Q. Did you sign any oath in writing? — A. I did. ' Q. Do you mean when you say the election was conducted fairly and honestly, to refer entirely to the inspectors and managers of the election ? — A. I do. Re-examined : Q. Were you sitting where you could look out upon the voters about the polls while the election was going on?— A. I was sitting where I could see a portion of the crowd. ' Q. Did you observe any disturbance of the public peace, or anything that was un- fair or dishonest among the voters? — A. I saw nothing going on that was unfair or dishonest; no disturbance of the peace or riots; everything seemed peaceable. Recross : Q. Did you see among the crowd about the polls any person or persons taking tickets out of the hands of voters against their will and presenting other tickets to them, or making or using any forcible means to cause voters to vote, against their will? — A. I did not see it. Ms WILLIAM -I- NOBLES. mark. Attest : John Hekndon, County Judge, Baker County, Florida. Deposition of Gordon 8. Taylor. Who, being duly sworn, deposes and says: Question. What is your name ?— Answer. Gordon S. Taylor, Q. Where do you reside now, and where did you reside on 7th November last? — A. In Baker County. Q. Were you at a general election held in Florida on the 7th November last; if so, at what precinct and what-county ? — A. Johnsville precin«t. Baker County. H. Mis. 58 7 98 DIGEST OF ELECTION CASES. Q. Did you act as inspector at the election at said time and precinct?— A. I did. Q. Were you duly sworn as such? — A. I was. Q. Was the election at that precinct conducted peaceably, fairly, and honestly?- A. It was. Q. Who' were the other inspectors *ho acted with you ? — A. Elias Williams and William C. Cobb. Q. Were they duly sworn as such ? — A. They were. Cross-examination : Q. Who administered the oath as such inspector? — A. Myself. Q. As what officer did you administer the oath? — A. As justice of the peace. Q. When did you take the oath and administer it ?— A. On the 7th day of November last. Q. Did you see any one at the election at your precinct being prevented from voting by force or threats of any kind ?— A. I did not. Q. Were you holding any other office on the 7th day of November last besides that of inspector of election and j ustioe of the peace ? — A. I was tax assessor and collector. Q. When were you appointed justice of the peace and tax assessor and collector? — A. I was appointed justice of the peace in 1875 and tax assessor and collector in 1876,. as near as I can recollect. Q. Were you or were you not appointed tax assessor and collector after you were appointed justice of the peace? — A. I was. Q. Did you qualify in both offices? — A. I did. Be-examination : Q. Were yon an acting justice of the peace on the 7th day of November last ?^-^ A. I was. Q. Did you administer the oath to Elias Williams and William C. Cobb on that day as inspectors of the election at said Johnsville precinct? — A. I did. G. S. TAYLOR. Deposition of William C. Cobh, Who, being duly sworn, deposes and says : Quesiion. What is your name? — Answer. William C. Cobb. Q. Where do you reside now and where did you reside on the 7th November last! — A. In Baker County. Q. Were you at a general election in Florida on the 7th November last ; and, if so, at what precinct and in what county ? — A. In Johnsville precinct, in Baker County. Q. Did you act as inspector of election at said precinct ? — A. I did. Q. Were you dnly sworn as such ? — A. I was: Q. By whom were yon sworn ? — A. By Gordon S. Taylor. Q. Who were the other inspectors that acted with you ? — A. Elias Williams and Gordon S. Taylor. Q. Was the election at said precinct conducted peaceably, fairly, and honestly? — A. It was. Cross-examined : Q. Did you know when you took the oath before Gordon S. Taylor that he was tax assessor and collector of Baker County? — A. Yes, sir. WILLIAM C. COBB. Contestee asks that 75 votes cast and counted for contestant in said county be reiected, on the ground that they were cast by persons who were not registered iu compliance with law. Your committee is of the opinion that, under the rules of law laid down iu the case of Alachua County, in regard to registration, there is nothing in the evidence which sustains the charge. The e\idence shows that the court-house of said county burned after the election, and it pretty clearly appears that the records of the clerk's office, including the registration-list, poll-list, and returns of the election, were all burned. There is an attempt, on the part of contestee, to prove that some of the persons registered just before the election were not legally registered. But whether they had been registered before, and their names been improperly dropped, does not appear; nor whether they, took an oath to the effect that their names had been improperly dropped from the registration-list does not appear. There is no attempt at proving, by the contestee, that 10 votes were FINLEY VS. BISBEE. 99 cast for contestant by non-residents, minors, alien-born persons, &c., as alleged. Therefore, the vote of this county must be counted as returned by the precinct ofiQcers, including the vote of Johnsville and Darbyville precincts. This being done, the vote of tliis county will stand as fol- lows : Contestant 238 Contestee 143 As shown in said tabulated statement. BREVAED COUNTY. The testimony of John M. Lee and Quinn Bass, the only witnesses examiued by contestee, fails to establish the fact charged that there was a fra udulent suppression of the polls at any precinct in this county. (Lee, p. 445; Bass, p. 442.) The vote must, therefore, be counted as returned by the precinct officers. Contestant ■. Ill Contestee 56 BRADFORD COUNTY. Contestee asks, in his answer, thatLake Butler precinct, in this county be rejected on the ground of fraud, &c. But he abandoned ttiis in his printed argument (p. 81). He ouly insists on his allegation in regard to non registered voters. We do not think the proof sufficient to justify the throwing out of any vote on this ground. The vote should be counted as set forth in said tabulati'd statement. Contestant 700 Contestee 193. • CLAY COUNTY. Your committee is of the opinion that the entire vote of this county as returned by the precinct officers should be counted. The county board of cauvassers counted all the votes of this county except No. 8 (No. 11 Pond ; see Kecord, pp. 179, 180), and said canvassers say in their return that this precinct was not counted for the reason that there was no evidence that the inspectors at this poll were sworn. But the evi- dence in the record shows that the inspectors were sworn, and that the election at said precinct was honestly and fairly conducted. (Lyman Hall, pp. 24, 2-5 ; Buddington, p. 26 ; Ex. A and B, p. 27.) ^ Even the fact that the inspectors of the election were not sworn will not of itself, in the absence of fraud, render the election void ; and as there is no fraud shown at this poll it comes within the rule. (McCrary, sec. 305.) It is alleged that Elias Padgett, sr., was a non-resident of this county, and that he vote This is an important case, and all the principles arising under section 3, article 4, constitution of Florida, concerning foreign-born voters are decided. In that case the officers of the election, acted upon their own knowledge of the residence of these unregistered voters. They (the voters) did actually live in the district where they offered to vote, and could and doubtless would have produced the affidavits required by law if the officers of the election had required it. The court says no fraud nor 122 DIGEST OF ELECTION CASES. misconduct on the part of the officers of the election or voters was in- tended — the voters were not challenged ; but the statute was imperative and the votes illegal. The statute in that case is as follows : " No vote shall be received," &c. The constitution -of Florida says : " Otherwise he shall not be permitted to vote." If this was a statute and not a con- stitutional provision it is as imperative as the statute of Wisconsin j both use negative words, and to vote without complying with either is illegal and the vote cannot be counted. The court in this case was unanimous. The questions are ably dis- cussed, and decide that the voter is made by law the agent to execute it. An act is required to be done by him, and untilhe complies with the law, though he may in all other respects have the legal qualifica- tions, he cannot vote. The same principle is again confirmed in Bancroft vs. Slumnf, 23d Wis., 630. We find no authorities in conflict with those above cited, Oontestee shows by proof that 74 foreign-born persons vjtted without complying- with sec. 3, art. 4, of the Constitution. Fifty-three of these testify them- selves that they voted for contestant, four others that they voted the whole Democratic ticket. Seventeen others are called, and testify that they voted without producing the necessary certificates. They were asked by contestee for whom they voted for Congress, and were told by contestant's counsel they were not required by law to disclose that fact, and thereupon they refused to answer for whom they voted. We are of opinion, their votes being illegal, they were bound to answer, and re- fusing to do so at the suggestion of contestant's counsel is very strong presumjjtive evidence that they voted for contestant. Certainly in a . case like this the same strictness in evidence would not be required as in ordinary cases. Contestee, however, introduced witnesses (several are Democrats) who are well acquainted with these voters, and have known them for years. Some of the witnesses lived in the same precinct and had been candi- dates for office where these voters resided ; they testify that each of these 19 voters are Democrats, adhere to the Democratic party, talked Democratic prior to that election, and had, theretofore, voted the Demo- cratic ticket. When a voter refuses to testify for whom he voted, it is competent to resort to cir- cumstantial evidence, suoli as that he was an active member of a particular party, &c. (McCrary, sec. 293.) The committee think they are fully warranted from the evidence to say that these 74 voters illegally cast their ballots for contestant, and they deduct this number from his vote. The record shows the following voters were illegal for the cause stated, and were cast for Mr. Finley : J. D. Land, non-resident, voted at Jasper, Hamilton County. — Record, pp. 510, 511, 513, and 514. Benjamin Bowman, a non-resident, same precinct. — Record, pp. 510, 511. Wm. Ford, non-resident, voted at Waldo precinct, Alachua County. — Record, pp. 364-6. Jno. F. Semple, ticket fraudulently changed without knowledge of voter ; voted at Court-House, Columbia County. — Record, pp. 469, 470, 471,472. Lewis Mblack, minor, same precinct. — Record, pp. 476, 483. W. D. Bellany, non-resident, voted at precinct No. 4, Columbia County. —Record, p. 462. FINLEY VS. BISBEE. 123 / H. W. Hee, non-resident, same precinct. — Eecord, pp. 462, 463. Americus Bivens (convict for felony), sape precinct-^Record, pp. 463, 478, 479. Jolin Stone, non-resident, same precinct. — Record, p. 469. Dock Mills, non-resident, same precinct. — Record pp. 480, 481. Leon Gwynn, non-resident, same precinct. — Record, p. 483. Wm. McMsh, voted under duress, same precinct ; Stephen Tliomas, voted under duress, same precinct ; Joseph Simmons, votes under duress, same precinct; Thomas Boyd, voted under duress, same precinct. — See Record, from pp. 935 to 943. Clay County : Henry H. Green, non-resident. — Record, pp. 500, 501, 502, 504. Elias Padgett, sr., non-resident. — Record, pp. 604, 559, 560. Geo. H. Kersey, non-resident. — Record, p. 504. Putnam County : Henry Wamkee, idiot.=— Record, p". 431. Wm. H. Lannigan, non-resident. — Record, pp. 436, 437, 438, 439, 440. Duval County : Aaron Isaacs, non-resident. — Record, pp. 539, 540, 558. Wm. iMoore, non-resident. — Record, pp. 560, 561, 562, and 595. [Note. Persons who had not resided 12 months in the State, or 6 months in the county where they voted, are included, aud termed non-residents.] Thus it is seen that 23 illegal votes, notincluded in the " unregistered" votes or the "foreign-born" votes, voted for contestant. The proof either shows they voted directly for Mr. Finley, or, as is the case in some of the districts, Mr. Bisbee received no vote, or proved the one or more votes he did receive by the persons who voted for him. Hence these 23 votes are to be deducted from Mr. Finley's vote. These, with the illegal foreign-born votes, make 97 more illegal votes to be deducted from Mr. Finley's vote, bringing down the result, to wit: Bisbee. Finley. 11,293 11,036 Deduct 97 11,293 10,939 Bishee's majority, 354. Oontestee assails in his pleadings several precincts in the various counties, and introduces much proof in the record concerning gross care- lessness and violations of the election Jaws by the ofQcers of election, &c. He raises various other questions, such as compelling voters to vote numbered ballots or be discharged by their employers, duress, re- quiring open ballots to be voted, &c. But without specifying even the precincts attacked or the other questions insisted upon, muchless stating the proof adduced upon each question raised, your committee report that, after a very careful examination of all the testimony relating to these questions not yet discussed in this rejjort, the proof is not, perhaps, sufficient to warrant them in throwing out other precincts or to change theresultas above stated, There is no proof of absolute fraud su^cient to justify the rejection of the returns of these precincts. The officers of the election are censurable for their misconduct ; but by the rejection of illegal and unregistered votes, as we have done above, we have con- cluded that the returns have been sufficiently purged, and the vote re- _ maining is the true vote cast at this election. We find much to con- 124 DIGEST OF ELECTION CASES. demn in the carelessness and want of knowledge on the part of several of the offlcers who conducted the election, amounting in some instances to violations of the criminal law. But as the constitution of the State and the laws under it relating to elections changed the law at compar- atively a recent date, there is some little palliation for their ignorance of the law of elections. Your committee^^in their examination of this contest, have attempted to generalize the facts and to classify them, so that they could be treated and discussed under their proper heads. They found a mass of evidence, covering about 1,000 printed pages. More than 400 witnesses have been examined and much record and documentary evidence is also included. To have quoted the testimony setting forth the facts in detail would have drawn out this report to great length, and perhaps have involved it in some confusion. The committee, satisfied of the correctness of the conclusion above stated, recommend the adoption of the following resolutions : Resolved, That Jesse J. Finley was not elected and is not entitled to a seat in the Forty-fifth Congress from the second Congressional district of Florida. Resolved, ThatHoratioBisbee, jr., was elected and is entitled to a seat in the Forty-fifth Congress from the second Congressional district of Florida. JAC. TUENEY. J. M. THOENBUEGH. JOSEPH H. ACKLEN VS. CHESTER B. DAEBALL. Thied Congressional District of Louisiana. Contestant charged gross fraud and mismanagement on the part of the election offi- cers and the returning board. Seld, That where the poll was removed from the place fixed by law to another and unauthorized place, such poll must be rejected. Before courts or legislative bodies will give weight to results of recounts of ballots it must be shown absolutely that the ballot-boxes containing such ballots had been safely kept ; that the ballots were undoubtedly the identical ballots cast at the election ; and when these facts are established beyond all reasonable doubt, then full force and effect are giv^n to the developments of the recount. The return of the vote made by the Wells-Anderson leturnrug board must be disre- garded because of the most flagrant frauds, and of the exercise of judicial power by said board arbitrarily for no other reason than to achieve a result in accord- ance with their will. The count of the votes as declared by the present legal board of canvassers in all the parishes except Saint Martin's, La Fourche, and Iberville must be adopted. The House adopted the majority report February 20, 1878. Joseph H. Acklen sworn in. ACKI E^ VS. DAERALL. 125 February 8, 1878.— Mr. John T. Harris, from the Committee on Elections, submitted the following BEPOHT: The Committee on Elections, to whom was referred the contested election case of Joseph H. Aclden vs. Chester B. Darrall, from the third Con- gressional district of Louisiana, submit the following report: Contestant bases his claim to the seat in contest upon substantially the following grounds: 1st. That the action of the returning board of Louisiana (known as the "Wells-Anderson returning board"), in throwiug out certain polls in the, parishes of La Fayette and Iberia in the interest of contestee, was illegal, unjust, and fraudulent, and deprived contestant of over one thousand votes. 2d. That large and flagrant frauds were committed in the interest of contestee in La Fourche Parish, whereby contestant was deprived of several hundred votes, and that at poll 17 in said parish the fraud was so great as to vitiate and absolutely annul the election held at that poll. 3d. That the returns from Saint Martin's Parish were forged and false, and render null and void the votes cast in that parish at the election. 4th. That in the parish of Iberville, at various polls, and notably at polls 1, 2, 4, 5, 6, and 7, owing to the fraud, neglect, carelessness, or corruption of the election ofiScers, many hundreds of votes having con- testant's name were counted for contestee, and many hundreds of bal- lots which were blank as to the Congressman were counted for con- testee. To these and other allegations the contestee responded by a general denial, filing as his title and claim to said seat — First, the certificate of Emile Honors, who claimed to be secretary of state under the Packard government, and which showed the result of the election to be that indicated by the annexed table : INames of parishes. Ascension Iberville Assnmption . . La Fourche... Terrebonne . . . Saint Mary's.. Iberia Saint Martin'6 La Payette . - Vermillion Cameron Calcasieu Total 15,626 13,633 And, secondly, the contestee claimed that by the returns of the pres- ent board of canvassers under the present government he was also .elected. The contestant filed the following certificate issued to him by the present secretary of state. This certificate embraced all the votes as 126 DIGEST OF ELECTION CASES. cast and returned, with no polls thrown out, but with the parishes of Saint Martin's and Iberville excluded for the reasons therein assigned : Name8 of pariahee. m d . 1" 2,059 1,692 1,966 2,385 1,455 661 228 91 69 2,915 1,216 1,679 1,393 Saint Ma-ryV , 1,423 Iberia 1,242 1,157 Vermillioii ., .. ■ . 955 1,291 225 La Fourche . . 2,086 Saint; Mart,in'f^ * Ibervillet 12,621 12, 666 * This parisTj was rejected by the board of oanvasseiB, wbose report ia hereto attached, the returns of ■said parish having been tampered with while in Bepnblican hands. The parish gave a Democratic majority in 1874, as by reference to the report of the committee on- elections and qualifications of the house of representatives. (See page 27 of the journal of the house of 1875, bereto attached.) t The amount of votes for member of Congress in this parish before Hon. James Crowell, parish judge of said parish, as shown by the rt^port of the board of experts, now on file in this of&ce, a certified copy of which is hereunto annexed, shows the vote for member of Congress to be as follows : For Joseph H. Acltlen, 1,595 votes, and C. B. Darrall 1,253 votes ; while the return made by the supervisor of registrar tion for said parish gave Joseph H. Acklen 1,078 vot«s and C. B. Darrall 2,070 votes. If the pariah of Iberville ia not included in the additiop of votes, there being two different returns of the vote for mem- ber of Congress for the third Congressional district of this State, on file in this ofice, then the vote of Joseph H. Acklen is 12,666 and that of G. B. Darrall is 12,621, or a majority of forty-five votes in favor of Joseph H, Acklen. If the vote of Iberville Parish, as shown by the return of the parish judge and hoard of experts, is added to the above, then the vote stands as follows : For Joseph H. Aoklen'14,261 and C. B. Darrall 13,874. I, the undersigned, secretary of the State of Louisiana, do hereby certify that the above and fore- going consolidated statement of the vote is a true extract from the original returns made by the super- visors of registration of the election held in the above-named parishes for Congressional, State, and parochial officers of this State on the 7th day of November, 1876. Witness my hand and the seal of the State of Louisiana, at the city of New Orleans, this 8tb day of October, A. D. 1877. ' , ' [SEAL.] WILL. A. STEONG, Secretary o/ State. The results of 15,626 votes for contestee, and 13,533 votes for con- testant, as shown in the certificate filed by contestee, are obtained by the Wells- Anderson returning board having thrown out certain polls in the parishes of Iberia, La Fayette, and La Fourche, which polls showed large Democratic majorities. This committee deem it unnecessary to demonstrate the utter uncon- stitutionality of the returning board law, and the utter illegality of the action of the members of said board in canvassing the returns of this election. The committee find a full brief on the law on pp. 19 to 22 Kecord, and a decision of the Supreme Court, pp. 3 to 12, discussing questions incident thereto. Tlie contestee produces no sufficient evidence to sustain the action of the board ; the very supervisor of La Payette J. A. Veazey, whose testimony is quoted farther on, declares he did not make the protest upon which the board pretends to have acted in throw- ing out three polls in this parish. Poll 4, Iberia Parish, the only one thrown out here, is conceded to contestant by contestee (p. 56, contes- tee's brief), so the committee do not deem it necessary to refer to the evidence as to this parish. The polls of La Fourche are noticed under the testimony quoted from that parish. But, aside from these facts, the out- rageous and fraudulent action of that board, as well as the questions of law conneQted therewith, have been twice made a subject of investiga- ACKLEN VS. DAREALL. 127 tioa and examination by two committees of the last House of Represent- atives, the deliberations and investigations of both of which have made the illegal and fraudulent action of this notorious board a matter of well-authenticated contemporaneous history, and inclines this committee to pay little heed to any result declared by it. The following testimony of J. A. Veazey, supervisor, and Charles Guidry shows the manner in which the secret afiidavits upon which the board acted were prepared: Testimony of J. A.Yeazey (p. 166 Eecord). J. A. Veazey, being duly sworn, deposes and says as follows: Question. Please state your residence. — Answer. I reside in tlje parish of La Fayette. Q. Were you or were you not supervisor of registration for tbis parish at the last election ? — A. I was. Q. Did you see or not the protest signed with your name which appeared before the returning board? — A. I saw. it. Q. Please state whether that protest was made from information received or other- wise. — ^A. It was made from information received. Q. Did you know or »ot the facts contained therein? — A. No; because I did not read them. Q. As far as you know, what was the character of the election in the parish ? — ^A. Fair, as far as I could see. Q. In making that protest did you intend the facts it contained as being of your own knowledge, or was it simply a report that yon made from reports which came to you? — A. It was simply a report which I made from reports which came to me. Q. Will yon please state where that protest was made? — A. In the city of New Or- leans. Q. Did you pay any attention or not to it while it was being written ? — A. I did not. Q. Did you know or not that in signing that protest you were swearing to the oc- currence of fraud, violence, and intiniidation? — A. No, I dirt not. Q. Do you know who wrote the atifidavil which was given ? — A. I do not remember. Q. Were you told by any one that it was necessary to complete your returns to in- corporate in them a protest based upon the affidavits of parties in the parish ? — ^A. I do not recollect. Q. Did you or not make out a new consolidated statement of votes excluding the polls objected to in the affidavit?— A. Yes; I made another one. Q. How many polls were left out in the consolidated statement which you filed be- fore the returning board?— A. Two polls. Q. Do you remember the number of the polls? — A. Poll No. 1 I know was left out, and I think the other poll was poll No. 3. Q. Please state whether or not you think the polls which -were excluded should have been counted. — A. I think they should have been counted. Q. Did you swear or not to the returns tiled before the returning board? — A. I do not recollect. Q. Will you please state whether or not you returned to the parish to obtain a blank consolidated statement with the seal of court affixed? — A. Yes, I did. Q. When you went to New Orleans with your first set of returns did yon intend or not to file them before the returning board? — A. Yes, I did. Q. Did any one toll you or not that it was necessary that you should make a new set of returns ? — A. I do not remember. Q. Were you told or not at the custom-house that it was your duty as supervisor to make a protest and new returns? — ^A. I do not remember who told me so, but was told so by sime one. Q. Was the statement made by you on the report of men who made affidavits before the returning board intended by you as an affidavit or protest against the election or not?— A. No, I did not intend it to be such. Q. Please state whether or not you knew that your protest was to be used to throw out the vote of two polls.— A. No. Q. Do you rememberer not who made out your new consolidated returns? — ^A. Ire- member. Q. Who was it?— A. Delahoussaye. Q. Do you remember at what time you filed your second returns, which were made out by Delahoussaye? — A. I do not recollect. Q. State where the new consolidated statement was made. — A. In my room, in the citv of New Orleans. Q. Were the affidavits made by Diaz, Marchand, and others ever read to you or not? — A. I do not recollect. J A VEAZEY. 128 DIGEST OF ELECTION CASES. ' Testimony of Charles Ouidry, colored (p. 169, Record). Charles Guidry, being duly sworn, deposes and says as follows: Question. In an aiBdavit made before one P. A. Woolfley, on the 28th of November, 1876, in New Orleans, and signed by you, yon are made to relate threats on the part of the Democrats toward tlie Republicans at poll No. 1 in, tuis paiish. Please state what you know concerning said affidavit. — Answer. I only stated to Commissioner Woolfley the following facts: That I was a resident of the parish of La Fayette, ward No. 4; that I had lived in said parish since fifteen years; that I was a voter in said ward ; that I was a member of the parish central executive committee in said parish and a leader among the Republicans; that the white and colored people in said ward were on good and friendly terms; that it never had come to my knowledge that there existed any organization of white men gotten up for the purpose of intimidating by night the colored people; that I was on the day of the late election in the town of VermiHionvill4, ward No. 3 ; that in said town everything went oft' peaceably, and the voters of both parties and colors looked like a band of brothers, sitting and eat- ing at the same table; that I was there during the whole day of the election; that I knew not how many colored Democratic votes had been cast at poll No. 1 in Carenoro, perhaps 15; that only one colored man told me from Carencro, the Sunday after the election, that his employer had threatened to discharge him because he had voted the Republican ticket; that that colored man did vote a Republican ticket which I gave him myself and saw hira vote; that with this exception I knew of no intimidation having been practiced either at the poll in ward No. 2 at C. Tra.han's, or at poll No. 1 in Carenoro ; that I knew not the names of either of said commissioners at either of said polls. I also warned the aforenamed commissioner and his clerks and all those present that I knew nothing more; that I was on amicable iiud friendly terms with the white Democrats of my parish, and I wanted to be able to face them when I re- turned there. Q. Can you read and write or sign your name? — A. No ; I cannot. his CHARLES + GUIDRY. mark. Further evidenc^for this parish is found in the testimony of John Olegg (p. 28, Record) and that of fifteen other witnesses (from p. 163 to p. 171, Record). The committee decide this vote should stand as returned, with no polls rejected. In La Fourche Parish the evidence goes to show great fraud on the part of the Republican managers of the election. The following testi- mony is from that given by Hon. J. D. Moore, state senator of that dis- trict (p. 79, Record) : Q. What was the character of the election itself as held in your parish? Were all the electors who desired to vote the Democratic ticket permitted to do so? — A. The election in La Fourche was eminently a farce. It was conducted solely in the interest of one political party, and no opportunity was given for a fair, free, and full expression of the wishes of the voters. The polls in that parish were located, or rather public notice of their location was given, I think, forty-eight or fifty hours previous to the election. They were, on the next day or the day after — it was the day before the elec- tion — changed, and therefore it was impossible to communicate the notice of their location to the voters throughout the parish. The parish is about ninety miles long. We are without railroad or telegraphic communications, and it would have been phys- ically impossible to notify all the voters where the polUngplaces were to be after we received the notice of their location ; I mean it was impossible to notify them of the first location, and it was still more impossible after the change was made. They were first located in the negro quarters on the plantations, and they were afterward changed to the public road. These public notices were only given ', as far as I know, in the to wu of Thibodi'aux. The people in the country knew nothing at all about them. They had to wait until the day of the election and run generally hither and thither to ascertain where the polls were to be. In the selection of the commissioners, the supervisor, M. A. Ledet, made it a point to select Democratic commissioners, living at a great distance from the polls to which they were appointed. For instance, Mr. Allen, living imme- diately opposite the town of Thibodeaux, was appointed commissioner at a poll some thirty or forty miles below, I believe. No official notice was sent to him at all, nor, I believe, to any of the commissioners, and it would have been physically impossible for them to have reached the polls to which they had been appointed, even had they been notiiied and their commissions given to them at the time they were handed to the ACKLEN VS. DAREALL. 129 chairman of the Democratic committee. I would like to state that it was to the chair- man of the Democratic committee that these commissions were given, and never to the commissioners themselves. They were never at any time notified by Ledet in person, that I know of. Q. From your knowledge derived from your residence in your parish and from your political position there at the time of the election, what is your opinion and belief as to the number of votes lost to J. H. Acklen in the parish of La Fourche by the action of the supervisor of registration in the matter of registration, in the appointment of commissioners, and in the general management of the election of La Fourche ? — A. Those facts, coupled with the conduct of colored Republicans with or toward colored Democrats, lost to the Democratic ticket, including J. H. Acklen, I am certain not less than 150 votes, because I do believe that if the colored voter had been permitted to vote as he was disposed a large number of them would have voted for the Demo- cratic party or abstained from voting. This is fully corroborated by the testimony of the supervisor of regis- tration himself, M. A. Ledet, who confesses the part he took in the fraudulent registration and election, and afterward in the alteration or " doctoring "of the returns in the committee-room, whereby, as he states, J. H. Acklen was deprived of some two hundred votes. The following is part of the testimony of said M. A. Ledet (pp. 73 and 83, Eecord) : Q. How was the registration conducted in that parish under your administration? Give a full and detailed account of it. — A. Well, I conducted the registration as fair as I could. Had I been left alone I could have done it fairly, but on account of the pressure that was brought to bear upon me by the Republican campaign committee, I was compelled to go according to their dictation. In the registration I took all the advantage I could. I suppose that I neglected the registration of the white voters of that parish to the extent of about 25 or 30, probably. I mean white Democratic voters. There were about that number that were prevented from registering. This was done by my being advised, of course, by the campaign committee to not remain long at one place, and to dodge about. I rejected, as far as I can remember, some 6 or 8 that I thought were not of age. That is about all about the registration. Q. Were you not appointed supervisor with the distinct understanding that you were to carry the parish for the Republicans at all hazards ? — That was the under- standing, sir. Those were the questions put to me by the campaign committee when I received the appointment. Q. How many votes do you think were lost J. H. Acklen by this peculiar mode of registration alone ? — A. Well, I suppose about 25 or 30. Q. That is, by the registration? — A. Yes, sir. Q. Now, Mr. Ledet, how about the election ? How, in reference to the placing of the polls, was the election condnoted ?— A. Well, in fixing the polls, I did it together with the campaign committee, and they insisted upon my locating the polls in the manner in which I did. Q. Were those polls not so placed as to prevent many Democrats from voting by a neglect of a proper time of notification? — A. Well, yes, sir; and it being in the quar- ters. Q. Were not colored Democrats prevented from voting the Democratic ticket by the situation of the polls in the quarters, where they were surrounded entirely by their own color, who were strongly Republican?— A. Well, to ray knowledge there must be in La Fourche eighteen or twenty Democratic negroes, and they were rather afraid. In fact, they did not vote. They belonged to the Democratic-Conservative club in Thibodeaax, and they were really prevented from voting by their own race, because I have myself heard colored speakers in the parish say on the stand that any nigger that would vote the Democratic ticket, they ought to get together and not only kill him, not only thathe deserved tp be killed, but massacred and burnt up. I remember a man by the name of Cook making that speech at Stoddard school-house a couple of weeks previous to the election. Q. Mr. Ledet, is it not a fact that at all the polls in the parish the Republicans had men stationed whose special business it was to examine the tickets of the colored voters as they came up, to see that they had a straight Republican ti cket and prevent them from having any other ? — A. Yes, sir ; there were at each poll some four or five constables who were appointed for that purpose by me as supervisor. Q. What number of votes were lost to J. H. Acklen by the failure to place poll No. 17 where it was ordered to be held, at the Allen warehouse, and which was really held back in some negro quarters about three miles from the road ? — A. Well, the commissioner at that poll had instructions to hold the election on the road-side at the warehouse, and he disobeyed orders and went back there. He told me himself after- H. Mis. 58 9 J 30 DIGEST OF ELECTION CASES. ward that there were about fifteen or eighteen Democrats that would not vote on ac- count of the poll being there, because Mr. E. H. Allen, who was the owner of the place, protested against holding the election there and disgusted those men from vot- ing there. That information I had from the commissioner himself. I know myself that on that place there were at least fifteen or eighteen white men working there nearly all the year round. Q. Had there been under the law a fair registration and a fair election held in the parish of La Pourohe, giving neither party an advantage, and permitting the negroes to vote as they chose, and giving the facilities for voting which should have been given to the white Democrats, what is your opinion that the majority would have been for J. H. Acklen in the parish? — A. Well, in my opinion, I concede La Foarche to be from one hundred and fifty to two hundred Democratic majority if the polls were located properly and the voters were permitted to vote as they wanted to ; that is, by placing polls convenient for them to get at them and the commissioners being at each poll. Q. Then I understatid that by this unlawful registration and election J. H. Acklen has lost about two hundred votes in the parish of La Fourche? — A. Yes, sir. Q. Mr. Ledet, were you at any time previous to the election presented with a certain list of men deceased, and minors, and convicts, and felons, and absentees, &c., by one L. O. Moreau, Democratic United States supervisor, to have the names of those parties stricken from the rolls of the registration books? — A. Yes, sir. Q. Did you act upon this list to the full extent of the names presented to yon? — A. I erased a few of them, not all. Q. Do you not know that many names thereon that should have been erased you failed to erase? — A. Well, I suppose there were some. Q. In the consolidated return made out and filed in the secretary of state's office, was any notice taken of that fact that you have just stated ? — A. No, sir ; not that I know of. Q. Who made out this return ? Did you make it out in person ? — A. Jules Sevignes made it out. He was a candidate for the house of representatives, and he made put the return in the committee-room. Q. Is this the original which was made out by him? (Shown original consolidated return on file in the office of the secretary of state.) — A. This original consolidated return was made out in the committee-room in La Fourche. This other one (refer- ring to certified copy of the said original) was made in New Orleans. Q. Who made out the second one?— A. Sevignes copied it. Q. Is all the document in Sevignes's handwriting except your signature there? — ^A. Yes, sir; the whole of it is in his handwriting, with the exception of my signature. Q. Did Sevignes return himself elected on this consolidated return ? — A. Yes, sir. (Mr. Merchant objected.) Q. When you signed this return as made out by said Sevignes, had you carefully examined it to see whether it was correct ? (Mr. Merchant objected.) A. No. sir. Q. Did you find out afterward that the aforesaid returns, as signed by you, were incorrect ? (Mr. Merchant objected.) A. Well, yes, sir. I will tell you how these returns were made out : In the first place, every statement of votes and tally-sheet that were sent out to the diiferent polls was made out in pencil ; and when they were brought to.me the return was made and the tally-sheets were copied over in ink. That is how the first copy was made. The tally-sheets were doctored in the committee-room. Q. Then, in reality, you did not yourself make out the return that came from the parish of La Fourche and that was submitted to the returning board ? (Mr. Merchant objected.) A. No, sir. Q. The entire returns as made and filed with the board were made out by the afore- said Sevignes? (Mr. Merchant objected.) A. The statement of votes, or rather the consolidated statement, was. Now, ther^ were two or three others that helped me to copy the tally-lists. There were some fiv or six of them. < Q. To what extent now have you ascertained that the return from your parish, as made out by the aforesaid Sevignes, is incorrect ? In other words, how many votes were lost to J. H. Acklen by this return which should have been credited to him ? (Mr. Merchant objected.) A. According to the statement that I have already made, I think you lost some two hundred votes. ACKLEN VS. DARRALL. 131 Cross-examination by Mr. Merchant : (Mr. Merotiant said lie cross-examined this witness with reservation of all legal objections to his testimony.) Q. Mr. Ledet, yon signed this return mentioned by you? — A. Yes, sir. Q. Did yon compare those returns with the commissioner returns to see tliat they were correct before signing them? — A. Well, no, sir; they were not compared, because the commissioners' returns were doctored or changed in the committee-room, as I have already stated. All the statements of votes and all the commissioners' returns were made pretty much in pencil. Q. How do you know that fact ? — A. Because I was there and saw it. Further evidence sustaining the foregoing is found in the testimony of M. W. Billier, p. 132, Record; A. Eovira, pp. 132, 137, Record; H. H. Michelet, p. 39, Record; Albert Brooks, p. 134, Record; E. A. O'Snlli- van, p. 137, Record; O. B. Morgan, p. 40, Record; T. Chatton Davis, p. 31, Record; I. O. Landry, p. 128, Record; Robert Poindexter, p. 30, Record. In the evidence offered by the contestee m the testimony of Tayler Beattie, p. 242, Record, Charles Gaud^, p. 181, Record, and Jules Sevigues, p.l84. Record, many of the statements of the witnesses on behalf of the contestant are qualified ; but it is the opinion of the committee that the facts educed in this parish show th: 1 1 contestant was deprived of a large number of votes, and that the returns as rendered, viz, J. H. Acklen 2,086, C. B. Darrall 2,015, do not show all the votes which the contestant would have received had the election and registration been fairly conducted. But this committee are without any exact figures upon which to base any change of the vote for the contestant, although this Republican witness declares that Acklen was defrauded of over 200 votes, and so let that vote remain as returned. The evidence, however, goes to show that the vote of poll 17, where 86 Republican votes were cast and not one Democratic vote, which was held at a place unauthorized by law, and about one mile from the place legally appointed, withno Democratic commissioner present, and appears to have been so held for the express purpose of preventing any Demo crats from voting there, should be rejected and not counted. Without quoting the testimony, this committee, after a careful examination, feel they are correct in adopting the language of the supreme court of Louisiana, which in rendering a decision on this poll said (p. 9, Record) : The reason of the rule invoked is, however, very manifest, and the circumstances at- tending the removal of poll 17 from the place fixed by law to another and unauthor- ized place make it more the manifest. The object of the change is proved to have been to take unlawful advantage of political adversaries; in other words, to defraud the law and prevent a fair, full, and independent expression of the popular will. Courts can- not lend their aid to such a purpose. It was no more legal to hold an election where it was held and returned, as that from poll 17, than it was to hold it at any other time than that iixedby law. It is well settled that cannot be done. There wasno election held at poll 17 in the parish of La Fourche on the 7th of November last. We have been unable to find and have been refened to no case where votes cast under similar cir- cumstances have been counted to determine an election. Our conclusion, therefore, is that what purports to be the return of this poll should not be counted or considered in determining the result of the election. Thus the vote for this parish of La Fourche is determined by this committee to properly be, exclusive of the vote of poll 17, rejected: J. H. Acklen 2,086 C. B. DarraU 1,929 SAINT MABTIN'S. Pending the printing of the Record in this case, the contestee appeared before the committee and claimed that some of his testimony taken in 132 DIGEST OF ELECTION CASES, this parish was mislaid, and requested twenty days to retake same. To avoid delay an agreement then was entered into between the contestant and contestee (p. 283, Eecord) predicated upon the supposed loss of said testimony. The next day the testimony was found in the hands of the Public Printer, where, by accident, it had gone with contestant's papers, and had been printed ; it is found on pp. 153, 154, 155, and 156, Eecord. By this agreement the vote of this parish is declared to be : J. H. Acklen 1,027 C. B. Darrall '.'.'.. ..y... .'.'.'..'. l!o95 These returns the present board of canvassers refused to canvass, alleging (p. 13, Eecord) that the same had been tampered with or forged. The evidence of contestee, pp. 153, 154, 155, and 156, Eecord, ■does not touch on this point at all, but inasmuch as the general result is not affected by the above vote as agreed upon, and inasmuch as con- testee strenuously insists upon the agreement, the committee, though of opinion that said agreement was superseded by the subsequent dis- covery of the evidence, are inclined not to disturb it. IBERVILLE. In the parish of Iberville contestant relies upon a recount of the bal- lots had under an order of court on March 6, 1877. This was four months ■after the date of the election. Before entering upon an examination in detail'of the features and cir- cumstances of this recount, your committee would remark that they were impressed with the fact tbat the law regards with jealousy and suspicion recounts of ballots, and is slow to sanction any change from results originally declared to results effected by such recounts. The rules of law governing recounts of ballots are plain and positive. Before courts or legislative bodies will give weight to results of recounts of ballots, it must be shown absolutely that the ballot-boxes containing such ballots had been safely kept ; that the ballots were undoubtedly the identical ballots cast at the election; and when these facts are estab- lished beyond all reasonable doubt, then full force and effect are given, to the developments of the recount. After full examination of the evi- dence your committee found no difficulty whatever in arriving at the conclusion that in this case the ballot-boxes had been preserved ; that they had never been tampered with, and that the ballots found in them were the identical ballots cast at the November election. Another objection to the consideration of the recount urged by con- testee is that the time between the election and the recount was some four months, and that the time for the preservation of the boxes by the clerk, under the laws of Louisiana, had expired. Section 13 provided in substance that the clerk of the court should safely keep the ballot- boxes, after delivery to him by the officers of election, tmtil after the n6xt regular term of the district or criminal court for said parish. Con- testee urges that the next regular term of the district or criminal court for the parish of Iberville was in January, 1877, two months after the election, and that after the lapse of said term, the law no longer obligat- ing the clerk to safely keep the ballot-boxes, a recount of such boxes or their contents was illegal. The facts are that the time for holding the term of the regular district court was in January, but no court was held. There were two claimants to the office of district judge. One of these claimants (and the one, too, who was afterward declared not to be the judge) went through the form of holding court; but no business what- ever was transacted, and no regular term of court was held until the ACKLEN VS. DAERALL. 133 month of April. But granting the fact that the term of court had elapsed between the time of the election and the recount, would that fact abridge the power of Congress in determining the rights of claimants to seats in its body to take the ballot-boxes, no matter what might be the lapse of time; and if satisfied that the boxes had not been tampered with, and that the ballots contained in them were the identical ballots cast at the election, to open the boxes, count the ballots, and decide ia accordance with the result of said recount? But the committee find, after thorough examination, that contestant could not have obtained the recount at a date earlier than it was effected. The election took place November 7, but the Wells- Anderson returning board did not declare any result until nearly two months afterward. After that declaration the contestant gave notice of contest, which was given within the time required by law. During this time, and until the NichoUs government was established in Louisiana, the state of affairs was such that few or no courts transacted business, and it was not until the month of February that the board of canvassers under the NichoUs government declared .any results. And thus awaiting final action of these two boards of canvassers were any proceedings by contestant delayed; and, further, the answer of the con- testee to notice of contest bears date "Washington, D. C, January 20, 1877," and appears to have been served some time thereafter. Thus the recount? which took place early within the first forty days, granted the contestant by law, was eflfected at as early a date as the case permitted. The proceedings of this recount (on pp. 63, 64, and 65, Record) appear to this committee to have been even unusually formal, and perfectly just to both parties, who were present; the one in person, the other by attorney. IS'or is any evidence offered or claim made by contestee that this recount.was not fairly cojoducted as between the parties in contest; that the judge, a Eepublican, presiding, did not act in a fair and impar- tial manner, and that the recount was not duly attested and authenti- cated; all of which facts appear afdrmatively in the evidence offered by contestant. The law directing the preservation of the ballot-boxes and ballots for such recounts is found in section 13, act 1872, election law of Louisiana; and that this law had been complied with is shown in the testimony. Authority for recounts in such cases is found in McOrary, section 280; 2 Parsons, 599; Thompson vs. Ewing, 1 Brewst., 192; 2 Brewst., 2; 1 Brewst., 67 and 69; 2 Parsons, 537, 548, and 553; 65 Penn. St. E., 36; 1 Brewst., 162; Cooley's Const. Lim., p. 625. That the contestant specified particularly the groiinds upon which he relied is apparent from the pleadings. That the proof as to an incor- rect original count, and the failure to count votes which witnesses swore to having voted, was fully established before the boxes were ordered to be opened by the court, is likewise shown. Many of the commissioners of election were called in previous to the opening of the boxes at said recount, to identify the seals and their signatures as being intact, and except at poll 7, where the box had been sealed but not signed, they did so identify them ; that the former and present clerk of court, in whose possession the law placed these boxes for safe-keeping, were also sworn, and testified that they had been safely preserved, is also shown. James Crowell, parish judge, former clerk, pp. 59 and 115 Eecord, says : Q. Were those boxes safely in your possession, Judge Crowell, until you delivered tliem to your successor ?— A. Yes, sir. Q. Would it have been possible for any one to have tampered with those boxes without your knowing it? — A. I, think it would have been impossible. 13 i DIGEST OF ELECTION CASES. Q. Were not those boxes in your office witli their faces or fronts turned out, expos- ing the seals in such a way that had they heen interfered with at any time the fact would have heen noticeable? — A. Well, as they came in I placed them with the seals out, in the main oifice, where I sat myself, and I took the seals and faced them outside between the end and the records of the parish court there. Q. Are the fastenings of this court-house secure? — A. Yes, sir. Q. Would it be possible for any one to come in here at night or at any other time without your being aware of it? — A. Not without breaking the windows. Q. You were present at the time the commissioners examined their boxes and iden- tified them as being in the same condition as when delivered to you? — A. Yes, sir. Q. You were also present at the recount of these votes? — A. Yes, sir. Q. Were those boxes at the recount in the same condition as when they were deliv- ered to you ? — A. Yes, sir ; the same as when I got them. J. A. Landry, deputy clerk of court, p. 62 Eecord, says : Q. Mr. Landry, you have access to the court-house at all hours? — A. Yes, sir; I have a key to the clerk's office, and previously I had a key to the sheriff's office. I have access to the sheriff's office, I believe, since the 9th of January last. Q. Have you ever at any time left the court-house or the clerk's office open, or in such a way that any one could come in here and tamper with these ballot-boxes since they have been in theclerk's office ? — A. Well, no, sir ; I never have. Whenever I was absent or went away, the clerk himself was here. I have never left it long enough to know that any one could tamper with them unless I should have caught them at it. Q. Then can you testify that to the best of your knowledge and belief while you have been here these boxes have been safe? — A. Yes, sir; I have always seen them there, and to my knowledge they have not been tampered with. Q. You see the boxes every day or two ? — A. Yes, sir. Q. If they had been tampered with over night or at any time, would that fact have been noticed by you, do you tbink? — A. Yes, sir; so far as I know the boxes have never been tampered with so far as taking any papers out or adding any papers to them, or anything of that kind. 0. H. Gordon, clerk of court, pp. 66 to 110 Eecord, says : Q. You are, at present, clerk of the parish court? — A. Yes, sir. Q. You are, at present, in custody of the ballot-boxes in this court ?-^A. Yes, sir. Q. Who delivered them to you? — A. My predecessor. Judge Crowell. Q. Have those boxes been in your possession ever since they were delivered to yon up to the present time ? — A. Yes, sir. Q. Can you swear positively, beyond all question, that, to the best of your knowledge, these boxes have been safely in your keeping up to the present time ? — A. Yes, sir. Q. Are the fastenings of the clerk's office here secure ? — A. Yes, sir. Always, when we go away from here at night, we fasten these windows on the outside, and when they slam they cannot be opened from the outside at all. Q. If there had been any entrance made into the building during your absence from it, could you have detected it?— A. Yes, sir. They would have had to break the lock or pulled the wedge from the fastenings of the windows. I am here during the day all the time. Q. From whom did you receive tbe ballot-boxes? — ^A. From Judge Crowell, my predecessor. Q. Can you swear positively, to the best of your knowledge, that while those boxes have been in your possession they have not been tampered with ? — A. Yes, sir ; I can swear positively that while those boxes have been in my possession they have never been touched at all. They were handed over to me when the judge vacated the office, and they were in that other room piled up from the floor, one on top of the other; and I moved them from there and put them under this table, which then stood by that window, and after that I cleaned up here a little bit, and I moved this table over here and put the boxes where you find them now, on top of the table I handled them around, and I might have handled them carefully if I had thought there was going to be a contested election case; but, not knowing anything about it, I did not pay much attention. I might have left them where they were. Q. Were not those boxes piled up in the room with their seals facing outward, so that they could be seen every day as you came in ? — A. Yes, sir ; they were turned right around the reverse of the way they are now in that room on that other side. Q. If those boxes had at any time been tampered with over night, could you, on the next day when you came iu, have noticed that fact from the difference in the papers and iu the seals ? — A. Easily, sir. 1 would not only notice the fact of the boxes hav- ing been tampered with, but I would notice the fact that some of these windows and doors had been tampered with in order to get in here. Q. Would it be possible for iiuy one to enter this office where these boxes were kept without leavine some traces? — A, No, sir. ACKLEN VS. DAREA.LL.. \ 135 Q. Are the fastenings of the windows and the doors secure? — A. Yes, sir. Q. Are you or some of your deputies here always during the day? — A. Yes, sir ; I am here nearly all day from the time I come here in the morning. I get hete about 7 o'clock, and go to dinner, and I am back here about 1 o'clock, and I stay until I look it up myself at night. Additional testimony of the commissioners themselves, showing con- ■clusively that the ballot-boxes, when brought forward for the purpose of the recount, had not been tampered with, will be noticed further when each poll is taken up separately. Suffice it to say that the evi- dence is conclusive that the ballot-boxes had been safely kept, and had not been tampered with between the time of the election and that of the lecount. Such being the case, the presumption follows that the ballots found in the boxes when the recount was made were the identical ballots cast at the election. The peculiar character of the case, and the fact that in the parish of Iberville the party of which contestee was the nominee was largely in excess of the other party, render it necessary for the committee to notice at some length the history of the election in that parish, and to set forth the causes which operated to deprive contestee of his party strength. It is true that Iberville is largely Eepublican, but the evidence is conslusive that the leaders of the Eepublican party in Iberville, as weU as some of the most prominent Republicans in the State, were opposed to the election of contestee, and combined to defeat him. The testimony of W. W. Wharton, pp. 33, 121, Record ; Wailes, E., p. 116; Gordon, R., p. 108; Robertson, E., p. 103; Holmes, E., p. 113 ; Ennis, E., p. 90 ; A. J. Gordon, E., p. 96 ; Loud, R., p. 67 ; Bess, R., p. 97 ; Oommager, R., p. 99 ; Hunter, R., p. 90 ; Barnes, R., p. 93 ; Deslonde, R., p. 43 ; Roberts, E., p. 84 ; Weightman, E., p. 85, as well as that of others, shows very strong opposition to the election of the contestee in Iberville Parish on the part of the Eepublicans themselves. The following, from the testimony of Hon. W. W. Wharton, pp. 33, 121, Eecord, sheds much light upon the manner in which this fight within the Eepublican ranks against the contestee was conducted : Q. Then, what was the decision and determination among your friends and yourself in reference to Dr. Darrall's defeat ? — A. The determination was come too early in the year that if I would take hold of the canvass here and organize the party thoroughly, I should be supported for the senate throughout. When it was ascertained that Wake- field was a candidate, and information was given that Dr. Darrall was supporting Mr. Wakefield, and the conduct of Dr. Darrall appeared to me conclusive that he was sup- porting Wakefield and giving me merely a negative assistance in this parish, whilst opposing me elsewhere, I called my friends together to discuss the matter. We dis- cussed it many times, and we came to the conclusion that we would hold the matter over the doctor's head; that we would not indorse him in the proceedings of our con- vention ; that we would hold it over, him and that I would talk to him and notify him, and that some of my friends would talk to him, and sound him, and ascertain his views in reference to the matter; and that in case it was necessary to proceed to extreme measures to force him to support me, the regular nominee; we should do so. Most of my personal friends were very active in the matter. Others of my political friends were negatively acquiescent about it ; but the entire direction of the matter in this parish was in my hands, as far as the canvass was concerned. Q. Was not the electtion also in your hands, in so far as regards the printing of the tickets, the general mana.gement of affairs, the distribution of the tickets, &c. ? — A. After the preliminary organization of the parish, and after we had secured the parish committee and the parish convention, I was appointed by the committee as fhairman of the campaign committee of the parish, with power to conduct the can- vass, arrange meetings, disburse funds, print tickets, and do everything else in refer- ence to the matter. I was appointed at a meeting of the committee. I believe the vice-president, Judge Crowell, was in the chair at the time. Q. What were your reasons for keeping the matter a secret in the parish of Iber- ville to a certain extent except as among your particular and personal friends? — A. For this reason, that I wanted to do two things, to be elected myself and to beat Dr. Darrall. To do this it was necessary to avoid any handle that the opposition to myself 136 DIGEST OF ELECTION CASES. might take up. I was opposed very bitterly here by Senator AUain and his friends ■who would have seized upon anything of the kind as a weapon to fight me with. Dur- ing the dp,y of an election it is very easy to get up quite a disturbance by anything of that kind. On consulting with my friends, we agreed that the leaders should be thorpughly conversant with the matter themselves, sound their own leadiug men, have it understood, and carry it out that way. In certain localities of the parish where the opposition to me was strongest, we would proceed quietly and do but little. Q. Did you yourself bring up from New Orleans those tickets that were printed with Darrall's name on them, others that had the name of J. H. Acklen on them,, and others with the name of the Congressman left in blank ? — A . Yes, sir ; I had them printed myself and brought them here. Q. Where did you have them printed ? — A. In New Orleans, by a man by the name of Hopkins, on the corner of Camp and Common streets, in the Storey Building. Q. Did you distribute all those tickets yourself? — A. All that I brought up, or nearly all; there were a couple of hundred, perhaps, that I did not distribute. I gave out every ticket myself. Q. Give the names of some of those men that you distributed tickets to. — ^A. I will give the names of all of them. I will state, in the first place, that I gave to no one only one kind of ticket ; that is, I gave to no one a ticket that did not have Dr. Dar- rall's name on it without at the same time giving him a ticket with his name on it. I gave Mr. Deslonde tickets with Dr. Darrall's name on, tickets with Mr. Acklen's- name on, and tickets without either name »n; I gave the same to Mr. Davidson, to Mr. Barnes, to Mr. Ennis, and to Mr. Harris, who were both together ; to Preston and to Eobertson, from the third ward, who were both together, and to Mr. Gordon, in town here, who came to the house for them. I sent some by Mr. Tate and by some one else that Davidson sent here from Bayou Goula to get some tickets. Q. Were yon not surprised on the next day after the election at the returns a& made by the commissioners in regard to the Congressional vote ? — A. I was not sur- prised at all when I found out how the votes had been counted. I was at half a dozen, different polls during the day, and I was here at this poll when they counted the votes. Isaw them commence to read off the tickets and thought it was all right, and went off to get my supper or a drink or something, and when I came back I found that they had counted only half a dozen tickets in that way, and had then com- menced to count them all in bulk. That was, may be, an hour or three-quarters ^f an hour after the counting commenced. Just about that time the box from the third ward came in, sealed and delivered, and I asked Mr. Talbot, "How did you get through so quick as this ?" He said, "We counted the votes straight in bulk." Then I knew that the votes in that box had been counted straight. I said, "You counted all the black tickets straight Eepublicau?" He said, "Yes, and all the others the same way." Then I knew that all the Kepublican tickets that had your name on them and all the blanks had been credited to Darrall. Whilst I was considering in my mind whether I should insist upon a recount, the box from the Wharton school- house came in, and I asked Mr. Bruce, "How did you count the votes there?" He said, "We took all the black tickets and tallied them straight, and then read the scratched tickets." He said, "Why?" "Why," I said, " I thought you would read them out one by one." A little while afterwards he came back to me and said, "Noland tells me that you had some tickets printed with Acklen's name on them." I said, "Yes." Said he, "Do you think there was any in our box?" I said, "I know there was one in there, for I voted one myself." He said, " We counted it for the doctor, then." He said, "What are we going to do about it now?" I said, "I da not know ; you had better let it alone." I had come to the conclusion that it was better to let it alone until I saw what was the next best thing to do. It is not gainsaid that the regular Eepublican tickets for this parish were all in the hands of Wharton for distribution, nor that these straight Eepublifcan black-back tickets on which contestant's name appears were printed and distributed before the election. Out of the 12,000 printed for this parish 6,000 bore the name of contestant, 4,000 were blank as to member of Congress, and 2,000 had the name of con- testee. That they were quietly distributed throughout the parish the night previous and the day of the election is shown in the testimony of W. W, Wharton (Eecord, pp. 33, 121), C. H. Gordon (p. 108), Jam^s H. Tates (p. 57), E. A. Verrett (p. 270), P. G. Deslonde (pp. 42, 202), Fred. Eobertson (p. 103), A. J. Barnes (p. 93), Lycurgus Bess (p 97), Charles A. Brusl6 (p. 61), Charles Commager (pp. 99, 100), Giles Hunter (p. 100), A. J. Ennis (p. 90). The contestee adduces the testimony of Craig (Eeconl, p. 272), Carrielle ACKLEN VS. DAEEALL. 137 (p. 196), Wilson (p. 266), Coleman (p. 255), Frank Deslonde, (p. 205),. Davidson (p. 250), Pieruas (p. 261), and Verrett (p. 209), to show that, though given out, these tickets were not voted, simply because these witnesses allege they did not discover them in the boxes during the original count of the votes on the day of the election. The witness Davidson alleges he destroyed 1,000 bearing Acklen's name, which were given to him for distribution. The manner of the count at the different polls, however, in the opinion of this committee, entirely precludes any definite testimony as to examinations of tickets bearing contestant's name; and the weight of the testimony conclusively shows that these tickets were not only distributed to the voters, but voted, and that the commissioners of election, either unaware of the fact that such tickets were in the boxes, as they generally so_ testify, or willfully, by counting them in bulk and simply from the headings, credited the contestee with a large number of these votes that bore the name of the contestant. As the change in this parish by a recount was a large one, this com- mittee, in a careful and thorough investigation of all the facts con- nected therewith, have deemed it best to take up and treat each poll and all the evidence on both sides connected therewith separately, not only as to the distribution of these Acklen and blank tickets, the manner of the count of the votes, but also as to the identification of the box by one or more of the commissioners who signed and delivered it to the clerk. An examination of the recount, as compared with that made by the commissioners of election, shows the changes at polls 1, 2, 3, 4, 5, 6, and 7 to be material, and all in favor of contestant, with the ex- ception of poll 3, where there is a gain of 17 votes for contestee. The other polls show but slight changes, there being at poll 9, however, where the contestant was originally credited by the commissioners of election with 121 Eepublican votes, by reason of the Democratic com- missioner having been secretly apprised of the fact that Acklen's name would appear upon the Republican ticket, one vote is found among these for contestee. At no other poll does it appear that the Demo- cratic commissioner was aware of such a fact; on the contrary, each and all testify that they were unaware of the existence of these tickets bearing Acklen's name until after the election, and failed to examine any of them, with that name in view, during the count. At poll 1, it appears from the testimony of contestee's witness, J. B. Davidson (Eecord, p. 250), that he gave to Verrett, an officer at this poll, two packages, of 500 tickets each, one containing solely the tickets blank as to member of Congress, and the other, Acklen and Darrall tickets mixed together. It further appears thatthis officer, Verrett (Record, p. 260), who is also contestee's witness, testifies that he " gave them to several gentle- men around there, and they distributed them, and I distributed some of them myself, inside of the room where the poll was." Rev. James H. Tate, Republican (Record, p. 57), likewise testifies that he saw them circulating around, and that they were being given out to the voters, and also that he himself voted one. It further appears from the testimony of Amad4e Roth, commissioner (Eecord, p. 56), that the tickets were not scrutinized, but counted as straight Republican or straight Democratic. He says : I just headed tlie tickets, and when I saw it was a straight Republican ticket I put it down, and when it was a straight Democratic ticket I put it down. This is corroborated by other testimony at that poll. 'But the contestee claims that at the recount the paper covering the box appeared fractured or torn, and although the clerk alleged that this had occurred through his carelessness in moving the boxes from one 138 DIGEST OF ELECTION CASES. part of the room to another, yet this committee, with a strict regard to the interests of both parties, and particularly those of contestee, on a recount, refuse to accept this box as recounted, but let it stand as orig- inally returned in favor of contestee. KOLL 2 — BAYOU GOULA. supbrvisoe's return. recount. Dem. Eep. Total. Blanks. jf^l^, • 11^. Acklen 114 226 340 90 ?:i:::::::;::::::::::::::::::::l94 ^-«" - '' '' NiohollB 115 J. L. Davidson, colored Eepublican, and witness for contestee, alleges (Eecord, p. 248) that he received from Wharton 2,500 tickets the night before the election, and that 1,0Q0 bore the name of Acklen. He alleggs that he and Whittecoe examined and separated the Acklen tickets that night at his room; that he retained these Acklen tickets at his own room, while Whittecoe took the box and all the other tickets to his own room, some distance away. This latter fact is corroborated by Whit- tecoe, another of contestee's witnesses, who says (Record, p. 275) that they "selected them (the Acklen tickets) all out and left them at Da- vidson's house." He also says that he was at the poll at half past five o'clock next morning, with these tickets for distribution. But David- son alleges that he distributed the tickets. Unless Davidson did, as this committee are led to believe, distribute these Acklen tickets, then here is a conflict of testimony on this point; but he admits (same page), on being asked as to their being at his poll : I seen just an hour by sun, or perhaps later — I seen some of them, but not more than five; I think it was about two, lying inside of the room — inside, back of the poll; how they came there, I don't know. This clearly indicates their presence at the poll ; but he further says, p. 250, that he sent to Wharton for 500 more by a man named Joe Har- die, and he received from him the 500 sent for, all of which were blank as to member of Congress. From the testimony of W. W. Wharton, Davidson was in the movement to distribute these Acklen and blank tickets, and from his own admissions he played a double part; either he deceived Wharton or Whittecoe, and as Whittecoe is a very ignorant negro and testifies he can barely read and cannot write, it most probably was this latter. But the distribution of these tickets at this poll is proved beyond question by the testimony of P. Gr. Deslonde, contestee's witness (Eecord, pp. 42 and 43) : Q. Did you receive any tickets from Mr, Wharton yourself? — A. I did. Q. Were those tickets you distributed the black-back tickets ? — A. Yes, sir. Q. All of them? — A. Yes, sir. I gave a bunch of them each to some of my friends. I took them to be Eepublican tickets, because they were headed Eepublican tickets. Q. Were they alike in every respect, with the exception of the names you have mentioned? — A. Yes, sir. In the morning I took all these tickets to be Eepublican tickets. During the day I discovered the name of Mr. Acklen upon the tickets and that some were blank. Therefore I discovered that there were three tickets. This is corroborated by Wharton, who says he gave these tickets to Deslonde; and, further, this same witness again establishes their circu- lation at this poll by saying, in answer to the question (Record, p. 43) : Q. In visiting the various polls oftlie parish on the day of the election, did you see the Eepublican ticket with Mr. Acklen's name on it at more than one poll ? — A. No, sir; I saw them when I came back about three o'clock at Bayou Goulapoll. ACKLEN VS. DAEEALL. 139 Thus, the question as to their circulation here is deemed by this com- mittee to be conclusively settled. The only parties testifying to having been present or possessing any knowledge of the manner of the count of the votes at this poll, are — William A. Smith (Kecord, page 54) ; J. S. Davidson (Eecord, pages 39 and 23) ; Bazile Craig (Eecord, page 274) ; and William Whittecoe (Rec- ord, page 275). This latter testifies that he was only present part of the time, and as he knows very little of the count, his testimony will not be considered. William A. Smith, Democratic commissioner, poll 2 (p. 54, Eecord), Q. Describe the manner in wMoh the votes were counted. — ^A. The box was opened and the tickets were taken out, and the Democratic tickets were strung on a string, and the Eepublioan tickets were strung on a string, and the scratched tickets also, and then they were taken and called oif of each string. Q. In the way in which you counted the tickets at that poll could J. H. Aoklen's name have been on any ot them without your seeing it? — A. Yes, sir. Q. You say you did not scrutinize the votes? — A. No, sir; I never looked at them. J. S. Davidson, Eepublican commissioner, poll 2 (pp. 39 and 23, Eecord), says : Q. How were the tickets at that poll counted after the election ? Were they counted as straight Eepublioan tickets, and so on ? Were they sorted off and counted in that way, or were they read by name through each ticket ? — A. They were not read name by name. They were taken out by one commissioner and counted as a straight Ee- publioan ticket, or straight Democratic ticket, or scratched tickets. They were put off in three different piles. Q. How many tickets were put on the string before the counting began? — ^A. They strung them all and they counted them afterward. Bazill Craig, Eepublican commissioner, poll 2 (p. 274, Eecord), says (Darrall's witness) : Q. After you put them on the string, who counted them? — A. Eobert Hebert kept one tally-sheet, and Mr. William Smith kept the other ; and I took the tickets out of the box, and so did he, and we strung the tickets. All the straight Eepublican tickets went on a string, and all the straight Democratic tickets was put on a string, and all those that was scratched was put to themselves; and in taking out the tickets we examined to see which was the straight Eepublican ; and we read them and found that all those were Eepublican, and they were put down in that way, and the straight Democratic tickets all put down the same way ; and, after putting them on a string, we then counted them. Q. Now, Mr. Craig, how did you string these tickets? Did you use a needle and a string f.— A. Yes, sir. Q. Where did you pass the needle; through the center? — A. It was done in such a manner that I cannot say whether they were all through the center or not. We picked them up, and put them sufficiently, some half-way, some perhapsSiot exactly; but we put them as near the center as we could, to my recollection. Q. Then, in stringing the tickets, you strung them all on a string by passing the needle as near the center as you could ? — A. Yes, sir. Q. Now, Mr. Craig, if you were to string several hundred of these tickets through the center, in the manner you have described, on a string, do you think you could «asily see the center of the ticket without a great deal of trouble in examining it ?— A. No, sir ; we could not. Q. And they were counted on the string?— A. Counted on the string, sir. The committee have observed that the Congressman's name appears just about the center of this black-back ticket, and as there were 375 of them strung on a string by the needle used being passed through the center of the ticket before they were counted at this poll — and all the testimony goes to show that they were counted after they were strung — it is easily understood how such a mistake as shown by the recount could have occurred, for it would be impossible for any commissioner to see where the Congressman's name appeared after the tickets were on the string. 140 DIGEST OF ELECTION CASES. And again, among those present at the count and testifying, David- son (Whittecoe, who was not present bnt a short time, excepted) is the only commissioner or person aware of these tickets being there. He seems to have suggested the stringing, and therefore if his testimony about the 1,000 Acklen tickets be true, the question is, was this stringing of tickets not effected by him for some ulterior purpose 1 P. Gr. Deslonde, who was not present at the count, but who con- versed with Robert Hebert, who also counted the tickets at that poll, but whose testimony is not to be found in the record, says (Record, p. 43): Q. Did you not ascertain tliat those tickets were generally counted in bulk ? — A. Yes, sir ; that was the remark in the parish ; that they were counted as straight tickets. Q. After the election, was it found that they had been voted at any poll in the parish ? — A. Yes, sir ; only in the ward — in Grosue Tete. Q. Had they been voted at any other poll in the parish, so far as you heard? — A. No, sir ; by hearsay. Mr. Hebert told me that there might be about five tickets was voted there. Q. Where ?— A. Bayou Goula, poll No. 2. Q. Was it not a matter of public notoriety in the parish after the election that many of those tickets bearing the name of J. H. Acklen on them and many of the blank tickets were voted ? — A. Yes, sir ; I heard some of the commissioners of election men- tion that ; among them Mr. Robert Hebert. I asked him how the poU was down at Bayou Goula, and he stated to me that he thought there was some considerable scratch- ing done there. Q. Do you mean by scratching the voting of those tickets with my name on them ? — A. He alluded to the Congressman at that time. I asked him if Darrall had received a solid vote down there. He stated to me that there was some scratching done. Q. Do you mean the voting of the blank tickets ? — A. I think that was the under- standing of Mr. Hebert. Q. That was your understanding of it? — A. Yes, sir; that was my construction of it. Q. Not that the Eepublican tickets had the name of Dr. Darrall scratched off in ink or pencil ? — A. No, sir. Xow, if this witness is to be credited, here was one of the commission- ers who knew that such tickets for Acklen or blanks for Darrall were in the box, but who fails to count them for Acklen or deduct them from the vote for Darrall; for this committee find that Acklen and Darrall are credited with their full party vote by these commissioners' returns. (See returns.) Thus, if this witness Deslonde, who is contestee's witness (Record, p. 201), tells the truth, there was collusion between Hebert and Davidson not to count for contestant those votes cast for him in Repub- lican tickets. Thus the entire evidence leads this committee to the con- clusion that either through accident or design the tickets bearing con- testant's name in the box of this poll were not counted for him. These tickets were found on the recount in apparently the same con- dition in which they had been put in the box after the count of the votes by the commissioners, viz, strung together and tied up. C. H. Gordon (Record, p. Ill) says : Q. Do you remember one box in which all the tickets were all strung on a string ? — A. Yes, sir ; that waB the box from the first ward, and the tickets were all strung through the middle. Q. That was the box from poll number 2 at Bayou Goula ? — A. Yes, sir. Q. Did not that string of tickets have the appearance of being in the box, just as they had been placed there by the commissioners? — A. Yes, sir ; the same natural ap- pearance. In fact, I met Mr. Davidson down in the city, and I asked him about it, and I told him the impression that had been brought to bear that those tickets had been tampered with, and I asked him, "How did you count your tickets iu your boxes ?" He said, " We just strung them together ou a string and couuted them one by One,just as you would count money." This is corroborated by 0. W. Oolton (Record, p. 115) and G. H. Har- rison (Record, p. 119). The box at this poll was sealed with a band of ACKLEN VS. DAEEALL. 141 paper that was first put on with mucilage and then sealed with wax. Bazile Graig, contestee's witness, says (Eecord, p. 274) : Q. Did you assist iu sealing tlie box at that poll, Mr. Craig?— A. Yes, sir. Q. Over the key-hole ? — A. Yes, sir ; and then we took the candle, with some red aealing-wax, and melted it sufficiently and covered the paper around the edges with the wax entirely. Q. Did Mr. Smith have anything to do with sealing the box, as you recollect ? — A. Mr. Smith was right there and helped to do, for one had the candle and the other had the wax. Q. In the way that box was sealed up, could it have been opened without the seals that you put on or the paper that you put over have been broken?— A. No, sir. W. A. Smith, commissioner at poll 2 (Eecord, p. 54), says : Q. Was the box sealed? — A. Yes, sir. Q. "What did you do with the box? — A. Brought it here and delivered it. Q. Was the box safely iu your possession and sight until you delivered it to thh clerk ? — A. Yes, sir. (The box referred to by the witness was here produced by the clerk of the court for identification.) Q. Is that the box as you delivered it to the clerk? — A. I think that is the box yes, sir. The fact that the box was intact at the time of being reopened for the recount is further shown in the testimony of Gr. H. Harrison, G-. W. Colton, and J. H. Shanks, aside from the testimony of James Crowel. and 0. H. Gordon, is corroborative of the fact. The committee unhesi- tatingly decide that the vote of this poll should stand as recounted. POLL 4 — WHAETON UNION SCHOOL. supervisoe's keturn. Ackleu 33 Darrall 128 EECOUNT. Dem. Hep. Total, Blanks. Acklen 33 2 34 „, Darrall — 105 105 '^^ Packard 128 MchoUs 33 These Acklen and blank tickets were distributed here by 0. H. Gor- don (p, 108), and also by Senator Wharton. The count of the votes was made in balk, as" appears from the testi- mony ofN. L. Bruce, Democratic commissioner for poll 4 (Eecord, p. 47), who says : Q. Describe the manner in which the votes at that poll were counted. — A. We first ■selected out the straight tickets, both Democratic and Eepublican, and would glance at them or glance through them, and then take them down as so many straight tickets. I would take down, for instance, and mark the tallies to a certain number of the Ee- publican tickets all through, and then I would take the other ticket and mark that down in the like manner. As for scratched tickets, we generally read them through. Q. In the way you counted those votes could the name of J. H. Acklen have been on some of them without you seeing it ? — A. Well, yes, sir; on account of the tickets looking so much alike. I noticed that gentleman up there3(referring to Mr. Gordori; ,the clerk of the court) laughing when we were reading some of them over as straight tickets. J. H. Shanks, United States supervisor at poll 4 (Eecord, p. 49), says : Q. Did you see the votes counted ? — A. I did. Q. How were they counted? — ^A. By separating the Democratic and Eepublican xtnd scratched tickets. Mr. Verbols took them out of the box and Mr. Holmes over- looked them, and they were separated and counted that way. While they were be- 142 DIGEST OF ELECTION CASES. ing counted my friend Mr. Gordon was there, and I saw Mm laughing and smiling and I could noit tell what he was laughing at, but I found out afterwards. L. M. Verbois, commissioner at poll 4 (Record, p. 102), says: Question. Were you present at the count ? — Answer. I counted them myself, sir. Q. Please describe the way in which the tickets were counted at that poll.— A. We first commenced calling the names, and we counted a few votes thafc way, calling all the names off. Then we divided them, and put all the Democratic tickets that had no scratch on them in one pile and the Republican tickets on one pile, after examin- ing them to see if there was any scratching on them. Mr. Sandidge and I examined them. I believe he stood over my shoulder. Then I took up the piles and counted them, one, two, three, and so on, until the quantity in the pile was counted ; and I would say to those who were marking to mark so many Republican tickets or so many Democratic tickets, and then I would fold them up and put them in the box. Q. In the way in which those tickets were counted, could the name of J. H. Aoklen have been on some of them without your seeing it ? — A. Yes, sir ; because I held them in my fingers and counted them as you would generally count bank-notes, one over the other. 0. H. Gordon, United States marshal at poll 4 (Record, p. 108), says: Q. Willyoudescribethewayin which those votes were counted? — ^A. Well, precisely at 6 o'clock the ballot-boxes were opened and the commissioners made arrangements to commence to count and tally. The tickets were laid out separately. The regular Republican tickets, or the Wharton tickets, that were not scratched, were laid off in piles of thirties, and the Wakefield tickets that were not scratched were laid off to themselves. They were all counted by thirties. Q. In the way in which those tickets were counted was it an easy matter for the name ef J. H. Aoklen to have been on many of them without the commissioners being aware of that fact ? — A. Yes, sir ; it was a very easy matter. I could not help from laughing at the time at the way they were counting them. The two Democratic com- missioners appeared to be very close, and there was one Republican commissioner, and they scrutinized the tickets pretty closely and were counting them as straight ; and I was laughing at them counting them as straight tickets when some of them were blank and some of them had Mr. Aoklen's name on them. They were counting them as straight for Mr. Darrall. On page 60 lie says : Q. One of the witnesses testified to your laughing at the time of counting of the votes ; what was the reason of that ? — A. I was laughing at this : Mr. Bruce was put on as one of the Democratic commissioners and Mr. Verbois, with the understanding that they were to watch the votes very closely and see that the Democratic party got every vote, and when I saw them counting them at night, the way they counted them was that they laid the Republican tickets in a bunch together and just looked at the heads of them to see that they were Republican and were not scratched, and they would lay them aside, and the Democratic tickets in the same way, and then they counted them off by thirties ; and what made me laugh was that they counted them all straight for Darrall when some of them had Acklen's name on them and some did not have any one's name on them. G-eo. Holmes, Republican commissioner at poll 4 (Record, p. 46), says: Q. After you finished the count, what did you do with the tickets? — A. They were put in the box, and the box was sealed up. Q. What did you do with the box ? — A. Brought it to the clerk. Q. Was the box in your possession until you delivered it to the clerk ? — A. Yes, sir . (The box referred to by the witness was here brought in by the clerk of the court for identification.) Q. Is that the box? — A. Yes, sir, that is the box? Q. Is that the way you delivered it to the clerk? — A. Yes, sir. K. L. Bruce, commissioner at poll 4 (Record, p. 48), says : Q. Was the box safely in your possession until you delivered it to the clerk of the court according to law ? — A. Well, we put it in the ante-room there, and had keepers watching it. (The box referred to by the witness was here brought in by the clerk for identifi- cation.) Q. Is that the box, and is it sealed up as you delivered it ? —A. It looks to me like it, and there is my writing on it. ACKLEN VS. DAKRALL. 143 L. M. Verbois, commissioner at poll 4 (Eecord, pp. 52 and 102), says : Q. After you fimslied the count, what did you do with the tickets ? — A. We put them back in the box. Q. What did you do with the box ?— A. We brought the box aud delivered it to Des- londe, the registrar. Q. Was the box in your possession uatil it was delivered? — A. Yes, sir; we sealed the box. (The box referred to was here produced by the clerk for identification.) Q. Is that the box? — ^A. Yes, sir; that is the one. Q. Is it as you delivered it ?— A. Yes, sir. Q. Were you present when the box was sealed, Mr. Verbois ?— A. I sealed it myself, sir. Again (p. 102) : Q. You were present and examined the box previous to the recount, and testified that it had not been opened or tampered with ? — A. Yes, sir. Q. Are you willing to swear to that fact, beyond all question? — A. Yes, sir; I exam- ined it closely in the presence of the gentlemen that were there, and I could not see anything that was out of the way. I had a particular key in my pocket that day, and in putting the seal upon it I put the key on the sealing-wax, and when the box was brought to me some few days ago, or about a month ago, I examined to see whether I could not see that print, and I saw it the same as it was before. Q. Then was it possible for any one to have opened or to have tampered with that box without your knowing that fact? — A. No, sir. I will give my reason for it. I was very careful in sealing the box to put three seals on top and to put four on the side. That was right under the hole, so that if they wanted to put anything in the hole they would have to break the seal. The paper was very wide. At tihe lock of it there was also five seals, two on top and three at the bottom. The two on top were above the lock and the three at the bottom were below, and they could not get the lock open without tearing the paper. The paper was fully six inches wide. What made me par- ticular was, that I had heard so much talk about stuffing ballot-boxes, and I thought I would give them some trouble to stuff that box, if they did do it. That was my view in doing it. The contestee introduces but one witness at this poll, viz, F. V. Des- londe (Eecord, p. 204) : Q. You state further that you did not know that Mr. Wharton was opposed to Mr. Darrall, either before or since the election? — A. No, sir; neither before nor since. Q. Would Mr. Wharton have been likely to have informed you of any opposition to Dr. Darrall, knowing you to be a friend of Dr. Darrall's ? — A. That I don't know. He never said nothing to me. I know that on the day of election he was at Grosse Tete. The very limited knowledge possessed by this witness, who is a col- ored man, is shown in the testimony just quoted. Wharton, it appears from the testimony of others, was in Plaquemine. The fact of the count of the votes in bulk, when there were evidently Acklen and blank tickets among the others, is clearly shown by the testimony cited; and the identification of the box by the commissioners is complete and perfect. The committee decide that this poll shall stand as recounted. POLL 5— DEBLIEUX PLANTATION. supbbvisor's returns. Acklen 6S DarraU 207 RECOUNT. Dem. Bep. Total. Blanks. Acklen 63 95 158 32 Darrall — 79 79 — Packard 207 NichoUs 63 Antoine 207 Wiltz 63 144 DIGEST OP ELECTION CASES. < The distribution of tickets. Fred. Eobertson, Republican, at poll 5 (p. 103, Eecord), says: Q, Mr. Eobertson, did you, previous to or on the dayof tlie election, see any Whar- ton hlaok-back Republican tickets with the name of J. H. Acklen on themfor Con- gressman or with the Congressman's name left off? — ^A. Yes, sir; I distributed some ■of those tickets. Cross-examination : Q. Do you know of your own personal knowledge whether or not any of the Repub- lican tickets, having the name of Mr. Acklen on them for Congress, were voted at that poll? I do not speak of what you have heard.^ — A. Yes, sir; I have that impression. Q. I do not want your impression, but what you know of your own personal knowl- edge. — A. I know that some of them were voted ; those that I gave out were voted. James Preston also distributed tickets for this place. See testimony of Wharton. The count of the votes. E. B. Talbot, attorney at law, Democratic commissioner at poll 5 (p. 46, Eecord), says : Q. Did you count or assist in counting the votes at that poll? — A. Yes, sir; I did ; I counted them. Q. Describe the manner in which the votes at that poll were counted. — A. Well, the straight Republican tickets and the straight Democratic tickets and the scratched tickets were each placed separately in piles, and the aggregate number of each was put down on the tally-sheet. i Cross-examination : Q. When you counted the tickets did you pass them to anybody else? — A. In count- ing the tickets I was assisted in taking them out of the box and separating them by Coleman, a commissioner and a Republican. Q. When you called out the votes the talliesmen, as you called them, marked them ■down? — A. Yes, sir. Q. You did the calling? — A. Yes, sir; and the separating, assisted by this man Coleman. One of the United States commissioners made out one of the tally-sheets, and one of the oommissionerg made out the other. This man Coleman could not write. Ernest Gourrier, at poll 5, (p 87, Eecord), says : Q. Will you describe the manner and way in which the votes at that poll were counted? — A. The commissioners assorted them out by general appearance, and took a cursory glance at them, and if there was no scratching on them they were all piled up as straight tickets, and the tickets that were scrntched were put aside and were then counted over. The scratched names were noticed, and the balance of the ticket was counted just as it was supposed to be ; that is, a straight ticket. Well, I did not think thatthe voting amounted to anything; that itwas all with the re turning-board, and we did not care what became of it. Then, afterward, somebody remarked that the tally-sheets did not amount to anything, and wethrew them aside, and one of the commissioners just made out a statement or the return from memory as to how the vote had been counted out. Q. State the name of that commissioner. — A. Mr. Talbot. Q. Mr. Gourrier, is it not a fact that Mr. Talbot took the tickets out of the box and glanced at them to see whether they were scratched or not, and then placed them in piles; and that Jacob Coleman, anoiher commissioner, had nothing to do with the' votes, unless it was toward the last, when he assorted a few of them? — A. I beUeve he helped to spread them around or assort them out. I do not know that he did much. Q. Did Jacob Coleman examine the tickets and read the names on them ? — A. No, sir. I am free to say that he did not read a ticket through. He just assorted them out. He could barely read, anyhow, as it was. Q. Is Jacob Coleman not an ordinary plantation field-hand ? — A. He is an ordinary field-hand. I never saw him anywhere else. I never saw him anywhere scarcely be- fore that day. Q. In the way in which those tickets were counted, Mr. Gourrier, was it not very ■easy for the name of J. H. Acklen to have been on a number of them without any of the commissioners seeing it? — A. Yes, sir; easy enough. They only took a cursory ACKLEN VS. DARRALL. 145 glauce at the tickets to see if there were any erasures, and where there was an erasure that ticket was scrutinized as to the erasure. Cross-examination : Q. Then, if I understand you, Mr. Gourrier, the returns were made up without us- ing any tally-sheets ? — A. Yes, sir. Q. From the vote as actually cast? — A. From the vote as counted and remembered by Mr. Talbot. Q. All of the commissioners, including yourself, were satisfied with the return f-^A. Yes, sir. For my part I know that it did not' amount to anything ; that the return- ing-board would fix it up to suit themselves, and that it was no use to vote at all. Jacob Coleman, Eepublican, at poll 5 (p. 257, Eecord), says (DarraU's ■witness) : Q. Now, Mr. Coleman, will you please describe exactly how this 6ount was made, jas you did not previously describe it carefully — the count of the tickets ? — A. The way them tickets was counted, I unlocked the box; then I taken — myself and Parker- taken the tickets out, and laying them all out straight on the barrel, the straight Kepublican tickets all to themselves, and the straight Democratic tickets all to them- selves, in separate piles ; then we taken the straight Republican tickets, wrote each name down on the ticket carefully as we could, and each name was given his com- plement of votes, his number of votes ; the names was taken down as they were on the ticket, and were written down ; and the Democratic tickets the same way ; and the scratched tickets was counted, and those that were not scratched ; the name was taken down straight on the ticket, the names written, and the complement of votes written down. James H. Parker, Eepublican, poll 5 (p. 260, Eecord), says (DarralPs witness) : Q. Did Mr. Talbert arrange the tickets in piles on the barrel? — A. Mr. Talbert ar- ranged them. Q. How many piles ? — A. In three piles. "^ Q. Were the straight Eepublican tickets placed in one pile, and the straight Demo- cratic tickets in another, and the scratched tickets in another ? — ^A. Yes, sir. Q. Did Mr. Talbert then caU off so many straight Republican tickets? — ^A. Yes, sir. Q. Did he then call off so many straight Democratic tickets? — A. Yes, sir. Q. Did Mr. Talbert make out the statement himself of all the votes of the poll? — ^A. Yes, sir. / Let it be remembered that the box of this poll was sent to the clerk's office about one and a half or two hours after the poll closed. There were over 300 ballots, 49 names on each, to be counted in this time ; this fully proves the count in bulk. The identifieation of the box. E. B. Talbert, commissioner at poll 5 (p. 47, Eecord), says : Q. What did you do with the box ? — A. We gave it in charge of one of the commis- sioners, who brought it to the court-house. I subseq^uently examined the box and found it in the condition that I had sent it over in. (The box was here produced by the clerk of the court for identification. ) Q. Please examine that box and see if it is in the same condition in which you de- livered it to the clerk. — A. Yes, sir ; I believe it is. Jacob Coleman, poll 5 (p. 47, EecoM), says (DarraU's witness) : Q. After you had finished the count what did you do with the tickets ? — A. We put them in the box and sealed it. Q. What did you do with the box ? — A. Broughtit here and delivered it to the clerk of the court. Q. You had it until you delivered it to the clerk? — ^A. Yes, sir ; I did. (The clerk produced the box referred to for identification.) Q. Is that the box? — ^A. Yes, sir; I put that wax on it myself. Q. It is as you delivered it ? — A. Yes, sir. George Butterick, poll 5 (p. 239, Eecord), says (DarraU's witness) : Q. In what manner did you seal the box, or did you seal it at all after the tickets H Mis. 58 10 146 DIGEST OP ELECTION CASES. were returned to the box ? — A. I saw that the box was sealed ; it was sealed by Mr. Gourrier, the democrat ; it was certainly done in the ordinary way, or I should have noticed it. Q. Was it sealed with sealing-wax or with njucilage ? — A. With sealing-wax. Q. Was the key-hole sealed up ; or have you any recollection of that fact ? — A. I have no recollection of it; but had it not been sealed I should havce been apt to re- member it. 1 should not probably have allowed it to go to the court-house unless I seen it was properly sealed. Mr. Darrall introduces the following witnesses at poll 5, in rebuttal : Geo. Buttrick states there were no Acklen or blank tickets either voted or distributed at that poll ; but on cross-examinatioa (page 239, Eecord) says : Q. You testified that there were no tickets distributed at that poll ? — A. I testified to the best of my knowledge. Q. What is your knowledge on that subject, when you were in the house all day with the exception of once ? — A. Jfot very good. Q. I understand you to have stated that these tickets were taken out of the box by Coleman ; and they were handed to Talbert and scrutinized by him, and that you and Mr. Guerrifere laid off and made up the tally-sheets ? — A. Yes, sir. Q. Under the circumstances could you have seen every name on every ticket that was scrutinized by Mr. Talbert? — ^A. Certainly I did not see anyxpf them. Jacob Coleman states there were no blanks or Acklen tickets dis- tributed at that poll, as he was about the poll all day ; but on cross-ex- amination (Eecord, p. 256) says : Q. Mr. Coleman, how many polls were you at on the day of election ? — A. Only one, sir. Q. Were yon in the room all day as commissioner? — A. I was in the room all day,, as near as I can come at it, except about fifteen minutes. I asked for leave to get permission to go and get dinner. Q. Did you get out at any other time except to get your dinner ? — A. No, sir. Q. Where did you get your dinner ? — A. At Mr. Talbert's house, about two acre* from the poll. Q. You were gone, then, about fifteen minutes from the poU ? — A. As near as I re- collect. It might have been a little longer. Q. As you were in the room all day, except fifteen minutes, which time you took to go a distance of a hundred and forty yards and to get your dinner and return, how is it that you know there were no Republican tickets distributed among the voters at the poll ? — A. My reason is this : because I had a good many of the tickets in there, and whenever there was a different ticket came in I knew it. I had a good many in there in the room, up behind the box. When some one came up who didn't have a ticket, I gave them one. We closely examined them, and whensomever there was a ticket, except it was a straight Eepublican ticket, we knew it. I knew it anyhow. Q. Do you mean to say that you knew the difference between the Eepublican tick- ets with Mr. Acklen's name on them and with Dr. Darrall's njime on them as they were being voted in the box ? — A. No, sir ; I did not exactly mean th^t. It is just the same as I taken up this piece of paper and that piece of paper, and I see the difference in this piece of paper and this one. When this one comes in I know the difference — this one and that one, because I examined the two. [Witness illustrates with two pieces of paper. ] Q. Did you examine the tickets as they were voted ?^-A. No, sir ; but I examined the same kind. Q. Did you examine the tickets in the Jiands of the voters ? — A. No, sir. Q. Did you examine the tickets they voted ? — A. No, sir. James H. Parker states that there were no blanks or Acklen's tickets distributed at poll 5, and, therefore, none voted ; but on cross-examina- tion (Eecord, p. 259) isays : Q. Where were you on the day of election ?^-A. I was right there when they waa voting at the polls. Q. In the house all day ?— A. Until twelve o'clock ; then I went out. Q, -How long did you stay out ? — A. About five minutes. Q. Did you then return and remain in the house all day? — A. Yes, sir. Q. Did you know whether any Republican tickets bearing the name of Acklen were circulated among the voters outside ? — A. No, sir ; I did not see any. ACKLEN VS. DAEEALL. 147 Q. Did you go among the voters on tlie day of electipn ? — A. Before tlie poll wa& opened I did. Q. Had there been Eepuhlioan ticlcets with Acklen's name on them circulated among the voters would you have been able to see after the polls were opened ? — A. No, sir ; I would not be able to see them. The foregoing testimony fully proves tlie distribution and voting of these Acklen and blank tickets at this poll. The count vf the votes in bulk is likewise shown in the testimony quoted. And that fact, in the opinion of this committee, is fully established when it is borne in mind that this box was sent in to the clerk of the court in less than one hour after the closing of the poll. When it is remembered that there were over three hundred ballots, containing over forty names each, to have been counted and tallied, and the returns made up, it would be absurd to suppose that the tickets were examined as to contestant's name, and that they must have been, as the witnesses allege, counted in bulk; nor does, the testimony of the witnesses on behalf of contestee, also quoted, in any wise impinge the facts so clearly shown. These, together with the complete identification of the box, lead the committee to decide, with- out hesitation, that this poll should stand as recounted. POLL 6 — STINGLE'S store, supbrvisok's return. recodnt. Dem. Kep. Total. Blanks. Acklen 156 Acklen 155 73 228 ,qt: Darrall 301 Darrall 99 99 r° The distribution of tickets. A. J. Barnes, Eepublican (Eecord, p. 93), says : I was United States supervisor at poll No. 6 in this parish, at Stingle's store. Q. Mr. Barnes, who distributed the Republican tickets in your ward at the last election ? — A. Giles Hunter, Lycurgus Bess, and Charles Commeger, and myself. Q. Who received those tickets from Mr. Wharton ? — A. Myself. Q. Do you remember what kind of tickets Mr. Wharton delivered to you ? — A. Yes, sir. Q. State the kind. — A. They were black-back tickets. Q. Were those tickets all of one kind as regards the names, or were there such tick- ets as are known as Acklen tickets, and blank tickets, and straight tickets ? — A. Yes, sir ; there were some with Mr. Acklen's name on them, and some with Mr. Darrall's name on them, and there was some blank tickets among them. iQ. You received those tickets yourself from Mr. Wharton ? — A. Yes, sir. Q. What did you do with them? — A. I took them over the river and gave them to Mr. Bess and Giles and Mr. Commeger. They were in town at the time, and I gave them a good many tickets on the road before we got home. Q. Were those tickets distributed around among Mr. Wharton's friends on the morn- ing of the election ? — A. A great many of them were distributed over-night, and a great many of them were distributed next day; there were a great many distributed over-night. Q. Did Mr. Wharton instruct you how to have those tickets distributed, and into whose hands to have them placed ?— A. Yes, sir; he told me how to distribute them— to give them around to the boys to give out. Cross-examination : Q. Can you swear positively that any of the persons to whom you distributed these EepubHoan tickets with Mr. Acklen's name on them voted them at the poll on that day ? — A. Well, I can undoubtedly swear that some of the tickets that I distributed with Mr. Acklen's name on them did get voted there. Q. You swear to that fact ?— A. Yes, sir ; I know that. Q. How do you know it? — A. Because I know that some of the voters came right to the door where they were voting, and they came in with the green-back tickets, and they said they wanted the black-back tickets, and they took them and I saw them when they went in. 148 DIGEST OF ELECTION CASES. Q. Are you certain it was one of those tickets with Mr. Acklen's name on them f — A. Yes, sir ; ] had them in my hands. Cbarles Commeger, Republican (Record, p. 99), says : Q. Did you receive and distribute any blaok-baok Wharton tickets with the name of J. H. Acklen on them for Congress or with the Congressman's name left off at the last election ?— A. I could not tell whether the Congressman's name was left off, but I know one thing : that "Mr. Acklen's name was on the ticket. I did not know the gentleman, but I knew it was Mr. Wharton's ticket, and we all wanted to vote for him in the seventh and fourth wards; and so we would have taken his tickets. The prin- cipal part of the fourth ward would have been destroyed in his name if he was on board the ship and she going to be sunk. Q. From whom did you receive those tickets ?— A. From Andrew J. Barnes. Giles Hunter, Republican (Record, p. 100), says : Q. Did you distribute any tickets on the day of election, Mr. Hunter ?— A. I did, sir. Q. What kind of tickets ?— A. Mr. Wharton's tickets— the black tickets. Q. Did any of those tickets that you have mentioned have the name of J. H. Acklen on them for Congress ? — A. Yes, sir. Q. How do you know that fact ? — A. Because I saw it myself on the tickets. Q. Did that make any difference in the distribution of the tickets? — A. No, sir; I do not think it did. Lycurguss Bess, Republican (Record, p. 97), says : Q. Mr. Bess, did you receive and distribute any of the Wharton tickets on the day of the election with J. H. Acklen's name on them or with the Congressman's name left off? — A. I distributed some of the Wharton tickets, or black tickets, with J. H. Acklen's name on them, but who the men were that I gave them to I do not know. I did not know who Mr. Acklen was, but I understood he was Mr. Wharton's friend, and I was going to support all that were on the ticket with Mr. Wharton, even if it was a rattle- snake. Q. Who gave you those tickets for distribution ? — A. Mr. Andrew J. Barnes. I was up here on the day he got them, and they commenced distributing about 5 o'clock. Chas. A. Brusle (Record, p. 51) says : Q. State where you were at the election of November 7, 1876. — A. I was in ward No. 4, at poll No. 6. I was there during the day. Q., What was the color of the straight Kepublican tickets in this parish? — A. They had a black back, I think. Q. Did you, after the election, ascertain that some of those tickets had the name of J. H. Acklen printed on them ? — A. During the day I did. I had no opportunities of iSeeing them afterward, because I was not at the polls when they were counting the votes ; I went home before the count was made. Q. Was it not the common talk and rumor in the parish that many of those tickets bore my name ? — A. Yes, sir ; it was the impression throughout the parish that a great many of them did. The fact is that it was supposed that you would carry a very farge Tote. The count of the votes. Felix Roth (Record, p. 55) says : ' (5. You were a commissioner there ? — A. Yes, sir. Q. Did you count or assist in counting the votes there ? — A. I did, sir. Q. Describe the way in which the votes were counted. — A. The tickets were piled in three different lots. Cross-examination : Q. You certified the returns from that poll to be correct? — A. Yes, sir; and it was correct as far as I could do it, sir. The only thing I might have slipped was the name in this case. I had very little comfort and a great deal of diflSculty. It was one of the coldest nights that I ever saw in my life and I hjid no fire. That was the only thing that might have happened ; errors might have happened. I do not pretend to be correct in every case ; I tried to do justice to both parties. Thos. Johnson, at poll 6 (Record, p. 57), says : Q. Did you arrange them in piles?— A. Yes, sir; the Eepublican tickets together. ACKLEN VS. DARKALL. 149 We had two Republican tickets, the blue ticket and the black ticket, and then we had the straight Democratic ticket. We counted each together. A. J. Barnes, United States supervisor at poll 6 (Eecord, p, 94), says: Q. Explain how the votes were counted after the polls were closed. — A. They were taken out and laid on the table, and all the black tickets were called straight Repub- lican tickets, except those that had scratches on them, which were laid oflf on one side. There were some white tickets that were scratched and there were some green tickets that were scratched , and they were all laid aside. Then we looked where the seratohea were and it was fixed up. . Q. After those tickets had been glanced at to see whether they were scratched or not, and assorted out in piles, were they then counted by tens and twenties? — A. To my recollection they were counted ten and twenty in a pile. Q. In the way in which those tickets were counted could the commissioners, who were looking to see whether they were scratched tickets or not, have easily overlooked the name of J. H. Acklen on them ? — ^A. Without any doubt they could have overlooked a name, because a person who is not looking at any one name particularly, but just taking up the ticket to see if there was any scratch on it, would just see if there was any scratch, and then lay it down again. / Cross-examination : Q. Were the votes first taken out of the box aud carefully examined Ijy some one of the commissioners, and then piled up, and afterward counted in bulk? — A. They were taken out by Thomas Johnson and laid out in piles. ' Q. Is Thomas Johnson an intelligent man ? — A. Well, he can read and write. He was a commissioner. Q. Did the Democratic commissioner examine the tickets as they were taken out? — A. No, sir; I do not think he did. I think the only one who took them out after the box was opened was Thomas Johnson. They were taken out by Thomas Johnson and put in piles, and when they got so many in a pile they would mark them down. Mr. Gourrier was there, and Mr. Lorrison, and Mr. Bergeron. The identification of the box. E. J. Wilson (Record, p. 268 says) Darrall's witness) : Q. When the votes were placed back in the box how was the box sealed? — A. We put a sheet of paper right over the key-hole, and then we put the tape right below the key-hole, and then we sealed it and signed it. ^ Q. The way that paper was placed and sealed on the box, if the box had been un- locked and opened, would the paper have been broken ? — A. Of course. Q. Then it would have been impossible for that box to have been opened unless the paper was broken? — A. Unless the paper was broken. Q. Would you have recognized that box, and could you have told whether that box had been tampered or interfered with by the appearance of that paper and the seals ? — A. Yes, sir. Q. You are certain of that ? — A. Yes, sir. A. J. Barnes (Eecord, p. 59) says : (The box of poll number 6 was here produced by the clerk of the court for identifi- cation.^ Q.' Is that the box from poll 6 ? — A. Yes, sir. Q. Did you seal that box yourself? — A. Yes, sir; me and Mr. Roth. Q. Is that the box just as you sealed it? — A. Yes, sir; it seems so. Q. Examine it carefully, please. — A. It seems so. Q. You sealed it yourself, did you ? — ^A. Yes, sir ; me and Mr. Roth and Mr. Johnson. Mr. Johnson held. the candle for me, and I took the wax and dropped it on here with the candle. Q. Has not Mr. Roth defective eyesight, or is he not near-sighted ? — A. Well, I never heard him say anything about it. Cross-examined by Mr. JoUey : Q. Were you a commissioner ? — A. I was a supervisor. Q. How do you recognize the box ? — ^A. Well, I know Johnson's signature aud this other signature of Mr. Wilson very well. Q. Could you swear to that signature and to that one? — A. Yes, sir. Q. Could you swear to that other one? — ^A. Well, I have not seen his as often. This gentleman, Mr. Wilson, learned me ; I went to school to liim. Q. You sealed that box yourself? — A. Yes, sir; nie and Mr. Roth. V 150 DIGEST OF ELECTION CASES. Q. You sealed the box ? — A. Yes, sir ; I do not kno\v which one held the candle, but I and Thomas Johnson and all the rest were there, and when I sealed- it I know I was very careful in sealing it up. Johnson was holding the candle and the wax. Q. Did they put their names on the key-hole ? — A. They put them there on top. Q. 'Did Mr. Eoth put his name on the key-hole ? — A. He put his name somewhere ; I did not notice whether he put it on the key-hole. Q. How did you know that he put his name on the box ? — A. Because I was stand- ing right alongside of him; we were very careful about it; all of us were very careful. Mr. Darrall introduces E. J. Wilson as a witness as to this poll, who states there were no blank or Acklen tickets at the poll; that none were distributed, none voted, and none in the box, as he examined each and every name on each and every ticket; but on cross-examination says (Eecord, pp. 266, 267, 268): Q. Mr. Wilson', how many kinds of Republican tickets were voted at your poll? — A. Two. Q. Describe them. — A. The blue ticket and the black ticket. Q. Did yoii distribute any of the black-back tickets? — A. No, sir. Q. In the house? — A. Bight in the house, sitting down to the table. Q. Were you there all day? — A. All day; never had a chance to go to get my dinner ; had ray dinner there. Q. You did not go out at all? — A. No, sir. Q. I understand you to say that you distributed the blue-tickets, and not the black tickets? — A. Yes, sir; I distributed the blue tickets, but not the black. Q. Who assisted you in counting these votes ? — A. Well, there was Mr. Both and Thomas Johnson and myself. Q. Did you keep any of the tally-sheets ?— A. I kept the tally-sheets; yes, sir, all the time; and it was correct with the tickets that come out of the box. Q. I mean, who kept the tally-sheet when you counted all the tickets at night? — A. I kept the tally-sheet. Q. When the tickets were taken out of the box were they not arranged in separate piles? — A. Yes, sir. Q. Then, when the number of Eepnblican tickets were given to be tallied down, were they not called out in this way — so many straight Republican tickets, so many straight Democratic tickets ; and then were not the scratched tickets taken out and re^d separately? — A. Yes, sir; separately, one by one. ] Q. When the tally was made, was each straight Republican ticket taken up and read, every name off, or was the bundle counted through and then tallied? — A. We taken ten straight tickets out. I examined ten straight tickets one at a time, and, of ■ course, we put them down ; then we took that tally off, and then we would take ten more straight tickets, and we would put them down, and we continued that way until the box was through ; and all the scratched tickets we called them one by one, name by name. Q. Now, you stated that you particularly examined these scratched tickets your- self? — A. Yes^sir. Q. And are certain that Dr. Darrall was not scratched on any of them ? — A. Yes, sir. Q. Did Dr. Darrall get the full Republican vote at that poll ? — A. Yes, sir. Qj You are certain of that ? — A. I am certain of that. Q. If he had been scratched on three or four tickets would you have noticed it? — A. Yes, sir; because we called all the names off the scratched tickets; we called them out separately, one by one, every name on the ticket. Q. You say that Dr. Darrall got the full Republican vote of that poll ? — A. Yes, sir. Q. Here is a certified copy of the consolidated vote of the parish of Iberville. What is the vote for Dr. Darrall at your poll on that paper? (Consolidated return presented to witness. )^A. Three hundjed and one for Dr. Darrall. Q. What is the vote for Governor Packard there? — A. Three hundred and eight. Q. For C. C. Antoine? — A. Three hundred and eight. Q. I understood you to say that Dr. Darrall received the full Republican vote at that poll ?— A. Yes, sir. Q . How do you account for the fact that he falls seven votes behind Governor Pack- ard, according to the returns? — A. I could not tell anything about that. Q. Has not Mr. Felix Roth got defective eyesight? — A. Yes, sir; can't see without spectacles at night. Q. Examine those tickets Mr. Wilson. (Black-back tickets presented to the wit- ness. > Did you discover any difference in them?— A. There is a difference in one or two of them. Q. What is the difference ? — A. I see your name in place of Darrall'a. Q. Is there any other differedce? — A. No, sir. ACKLES VS. DAEKALL. 151 Q. Was this black ticket the black-back ticket, as well as you remember, that was ■voted at your poll 6f — A. Yes, sir; I could tell you better if I had a pair of specta- cles. Q. Are you troubled with weak eyes? — A. Sometimes I am, and sometimes I can see pretty well. ' Q. Did you have your own spectacles that night ? — A. No, sir; I borrowed Mr. Felix Eoth's. Q. How did Mr. Felix Eoth manage to see without his spectacles? — ^A. When I got through I passed them to him. Q. How long did he lend you his spectacles ? — A. For the time that I needed them. Q. How long did you need them ? — A. I did not need them more than twenty-five or thirty minutes at a time. Then when he needed them I would give them to him, Q. What were you doing when he had the spectacles? — ^A. Well, I was counting out the votes, and so on. Q. Did you handle all the tickets while Mr. Eoth had the spectacles? — A. No, sir; I did not. Q. Did Mr. Eoth handle any of the tickets while you had the spectacles? — A. No, air. Q. You always use spectacles? — A. Not at all times; only when it troubles me. Q. Would your eyes be likely to trouble you in examining carefully any small prints for five or six or seven or eight hours in succession ? — A, BrI it sometimes don't ; some- times I could read all day and sometimes I could not. ' • , Q. Do you think that you could read all day and read all night, too, without your eyes aflfeoting yon ? — A. No, sir ; I could not do that. Q. What sort of light did you have in your room? — A. We had candles; some five or six. Q. Where were the candles placed ?-rA. They were placed all around the box, so that we could have plenty of light to see. Q. Was the night a cold and disagreeable night ? — ^A. Yes, sir. Q. Have fire in the room? — A. We did not have any fire. We had no place to make the fire. It had been a gin-house. Q. The wind came in, then?^ — A. No, sir; there was no wind. It was perfectly closed, but we had no place to make the fire. Q. Were you comfortable there? — A. We were tolerably comfortable, only our toes bothered us from the cold. Q. You suffered a good deal from the cold? — ^A. Yes, sir; although there was no wind to get to us. Q. Were you not all pretty anxious to get through the count? — A. Yes, sir; we were. Thomas Johnson, colored, Eepublican commissioner at poUNo. 6, «ays (Darrall's witness) : Q. Did you assist in counting the votes at your poll after the election? — A. Yes, sir. Q. Did you examine any tickets yourself? — A. The tickets were counted in bulk, by tens and twenties. Q. Who took the tickets out of the box? — A. I did. Q. Did you look at them as you took them out of the box? — A. No, sir; justputall the Eepublican tickets to themselves and all the Democratic tickets to themselves. There were two Eepublican tickets running ; a blue ticket and a black Eepublican ticket. The Democratic ticket was a white ticket ; one Eepublican ticket with a black back, and then the other was blue. , We had taken the blue tickets and counted them to themselves in bulk, and the black tickets likewise, and then the Democratic tickets the same ; but, as counting out, one by one, we did not do it. Q. Did you examine the face of any of the tickets yourself? — A. Only examined one. I had twenty in bulk, and one I just called the names from as I walked. I just called off the names, so many and so many votes, from just the first one. I didn't take them all and examine them through; I didn't examine them all through. Q. What did Mr. Wilson do? Did he examine tickets? — A. No, Sir; he didn't ex- amine them through, I don't believe. Q. Did he examine the tickets at all? — A. Just stood there and took them away from me, as I counted them out in twenties. Q. Did other officers examine the tickets? — A. No, sir; the Eepublicans were to themselves, and the Democrats likewise. Q. You say you counted them in bulk; did you take them in bulk of tens of twen- ties ? — A. In twenties. Q. The straight tickets? — A. Yes, sir; and the scratched tickets we laid aside until we got through, then we counted them last. There were some names that were flcratohed out; we couldn't ojuat them in bulk with the others; we counted them to themselves. / 152 DIGEST OF ELECTION CASES. Crosa-examination : Q. Then there could have been tickets with my name on them? — A. There could have been tickets with your name on them, but we counted them In bulk ; we didn't examine them close ; didn't have time to count them one by one. Q. Did you see the box sealed? — A. Teg, sir ; I saw it sealed. Q. Was the box not sealed with a paper sealed on top, the place where the votes go in, then the paper carried over the side of the box and down over the key hole, and sealed there again f — A.- Yes, sir; it was sealed where the tickets go in and sealed ovei the key-hole also. Q. And the paper carried over the edge of the box? — A. Yes, sir. Q. Then the box couldn't have been opened without breaking that paper or seals, could it ? — A. No, sir ; it could not have been opened except by breaking those papers o&. The committee find the proof of the distribution and voting of these Acklen and blanks at this poll complete, likewise the identification of the box as being intact, to have been beyond question. The proof as to the count of the votes in bulk is in no wise questioned save by the tes- timony of contestee's witness Wilson, which has been quoted at length, and this is rebutted by that of this other witness, Johnson, whose testi- mony is flatly contradictory of that of Wilson. The committee are clearly of the opinion that this poll should stand as recounted. At poll 7 the distribution of th,ese Acklen and blank tickets is proven by Ohrs. Oommyer (Eeport, pp. 99 and 100). The votes are shown to have been counted in bulk by the testimony of Adonis Le Blanc, com- missioner (Report, p. 58). Nor are the facts set forth sufftciently ques- tioned or controverted in the testimony of the only witness thecontestee \produces at this poll, viz, J. M. Garville (Report, p. 197) ; but when the box previous to the recount was presented to the witness Le Blanc, he was not able to identify it, and although in the opinion of this commit- tee its identity is sufficiently established by the testimony of C. H. Gordon and James Crowell, the present and former clerks, yet this, committee, out of abundant caution, conclude, as the names of the com- missioners were ^not written on the box, to let it stand as originally counted in favor of contestee, as it does not affect the result, although they would feel justified in accepting the recount at this poll. CONCLUSIONS. Tour committee, reviewing the entire case, are led to the following conclusions : First. They disregard the return of the vote made by the Wells-An- derson returning-board because of the most flagrant fraud, and of the exercise of judicial power by said board by arbitrarily for no other rea- son than to achieve a result in accordance with their will. Second. They adopt the count of the votes as declared by the present legal board of canvassers in all the parishes except those of Saint Mar- tin's, La Fourche, and Iberville. That board counted the vote actually cast, and returned it without the exercise of judicial powers and without disfranchising any portion of the people. It is composed of men of high character. Republicans and Democrats, and there is every reason to give full faith and credit to its official acts. The committee adopt the returns of this board, as shown by the table here below quoted. But the board of canvassers omitted from their count the vote of Saint Martin's, declaring the returns from that parish (Record, p. 13) to be forged. But there is no other proof of this fact, and the committee ACKLEN VS. DAERALL. 153 adopt the current agreement of contestee and contestant (Eecord, p. 172) with regard to said parish, and therefore return it as follows : C. B. Darrall. J. H. Acklen. Saint Martin's 1,095 1,027 In the parish of La Fourche, the committee, in full accordance with the proof and the decree of the supreme court of Louisiana in the case of Welre w.Wilton (Eecord, p. 2), reject the vote of poll 17, where 86 votes were cast for contestee, and return said parish as follows : C. B. Darrall. J. H. Acklen. La Fourche 1, 929 2, 086 In the parish of Iberville the committee adopt there count of the votes at polls No. 2, 3, 4, 5, and 6, as per tabulated statement here below given, and return said parish as follows : Iberville Parish. C. B. Darrall. 1,423 J. H. Acklen. 1,468 Having thus considered these polls seriatim, the committee decide the following to be the proper and just vote for the parish of Iberville, V12:: Poll. Acklen. Darrall. 1 U 340 219 34 158. 228 58 59 260 33 45 218 86 2 3. 189 i 105 5 , 6 7 8 55 9 122 10 11 _ 90 1,468 1,423 Or a majority in this parish for the contestant of 45 votes. And in the entire district the committee decide that the following table shows the proper and just vote as cast in the different parishes for the contestant and contestee : Names of parishes. i m d 1 w t 1 Totes. 2,059 1,692 1,966 2,385 1,455 661 228 91 69 1,929 1,095 1,423 Votes. 1,215 1,679 1 393 1,423 1,242 Iberia lift I'ayette - 1,157 955 Calcasieu' 1,291 225 2,086 Pn.iTi+, IWn.Ttrin'n , . 1,027 Thervillfi 1,468 Total 15, 053 15, 161 ( Or a maiiority in the entire district for the contestant of 108 votes. 154 DIGEST OP ELECTION CASES. Your committee therefore recommend for passage by the House of Representatives the following resolutions : Besolved, That Chester B. Darrall was not elected and is not entitled to a seat in the House of Eepresentatives from the third Congressional district of Louisiana. Besolved, That J9seph H. Acklen was elected and Is entitled to a seat in the House of Eepresentatives from the third Congressional district of Louisiana. JOHK T. HAEEIS. WILLIAM M. SPRINGEE. MILTOlf A. CAKDLEE. JAO. TUEKBY. THOS. E. C )BB. JEEB. N. WILLIAMS. E. JNO. ELLIS. Mr. Price, from the Committee of Elections, submitted the following VIE ws. An examination of this case discloses the following facts : The third Congressional district of Louisiana is composed of the par- ishes of Ascension, Assumptioa, Terre Bonne, Saint Mary,''La Fayette, Vermillion, Calcasieu, Cameron, La Fourche, Saint Martin, and Iber- ville. On the 7th day of November, 1876, an election was held in this Congressional district for a member of the Forty-fifth Congress, and after the election, and after the votes at the polls at all the parishes had been counted by the legally-authorized officers, and the returns made as required by law, the following certificate of election was issued : State of Louisiana, Executive Department, Third District of Louisiana, New Orleans, December 28, 1876. Be it known that at an election begun and held on the 7th day of November, A. D. 1876, for members of Congress, Chester B. Darrall received 15,626 votes, and Joseph H. Acklen received 13,533 votes. Now, therefore, I, William Pitt Kellogg, governor of the State of Louisiana, do hereby certify that Chester B. Darrall received a majority of the votes cast at said election, and is duly and lawfully elected to represent the third Congressional district of the State of Louisiana in the Forty-fifth Congress of the United States. Given under my hand and the seal of the State this 28th day of December, A. D. 1876, and of the Independence of the United States the one hundred and first. WM. P. KELLOGG. By the governor : [seal.] p. G. Dbslonde, Seeretary of State. From which it appears that Chester B. Darrall was legally elected as a Eepresentative to the Forty-fifth Congress from said third district of Louisiana. Subsequent to this, and after the inauguration of the MchoUs gov- ernment, a law was passed creating a new returning-board, and this new board, created under a new law, proceeded to a recanvass of the same returns for the same office for the same district, and, after a full canvass. Governor MchoUs issued the following certificate of election : United States oe America, Executive Department, State of Louisiana. This is to certify that at a general election, begun and held in the State of Louisiana ACKLEN VS. DARRALL. 155 an Q. Did you carefully examine the tickets ? — A. Yes, sir. Q. Did you examine all the tickets,? — A. Yes, sir. Q. Were you assisted in counting the votes by other officers? — A. Yes, sir. Q. How many? — A. There was Mr. Dubuclet, Mr. Leonce Soniat, Mr. Roth. Soniat was Democratic supervisor. There was another gentleman there — I can't recollect his name ; he was only an assistant. Q. Was there three commissioners and two United States supervisors at the poll? — A. Yes, sir. Q. Did you scrutinize the tickets before they were counted? — A. Yes, sir. Q. Who looked over the tickets ; what oflcers looked over the tickets and scrutinized the names on them? — A. The same ones that I just now mentioned. Q. Did you yourself carefully observe every ticket and the names on themf — A. Yes, sir. Q. Can you give the number of votes received by each candidate for Congress, or near?^A. No, sir. I never took no statement; I did have one at the time, but 1 lost it. Q. Have you heard of a recount of the votes made in that box ?— A. Yes, sir ; I heard some conversation about it when I came up in Plaquemine here some time ago. Q. Would it be possible for three commissioners of elections, assisted by two United States supervisors, acting under oath, to have made any mistake in counting and com- piling of the vote as it was done by yourself? — A. I should think not, because they were very particular in the count. Q. As the votes were counted could you have made a mistake of one hundred or two hundred votes for member of Congress ? — A. No, sir. Dubuclet (p, 264) : Q. Did you assist in counting the votes as polled, after the election ? — A. Towards the last I helped to count the votes. I counted the scratched tickets, but the whole tickets was 'counted by Mr. Piernas and Mr. Amad^e Roth. Q. When you opened the box, who took the tickets out ? — A. Mr. Piernas and Mr. Roth. Q. As you only counted the scratched tickets, Mr. Dubuclet, could there have been any mistakes made on the other tickets and you not know it ? — A. I did not think they could make any mistake. I know they did not make any. Q. How do you know they did not make any ? — A. Because they was sworn. I sup- pose that they was to do it, and we were all sworn together to do it correct. Q. Yon were tallying, were you not — A. Yes, sir. Poll 2. — Craig and Smith, commissioners of election, and Davidson, supervisor testified — Smith, Democrat (p. 54) : Q. Did you count or assist in counting the votes at that poU? — A. I assisted in counting them. Q. Describe the manner in which the votes were counted. — A. The box was opened and the tickets were taken out, and the Democratic tickets were strung on a string and the Republican tickets were strung on a string, and the scratched tickets also, and then they were taken off and called off of each string. Q. Did you call off the tickets ? — A. No, sir ; I did not. Q. Did you take the tickets from the box ? Did you scrutinize them in any man- ner ? — ^A. I saw the gentleman taking them out. I was present and saw him take them out and string ttiem on the string, as I told you. Q. You were one of the commissioners ? — A. Yes, sir. There was a marshal there also who superintended everything. I saw everything. Q. You say you did not scrutinize the votes ? — A. No, sir ; I never looked at them. Q. Did you certify to the returns as being correct after the tally-sheets were made out? — A. Well, the account, sir, was right as called off. Q. Did you certify it as being correct f — A. Yes, sir ; as commissioner. Davidson (p. 249), a member of the legislature : Q. Did yoa take any part in the counting of the votes ? — A. I did when the poll was ACKLEN VS. DAKEALL. 159 closed. The box was opened, and Mr. Robert O. Hebert took out the tickets and ex- amined them, and we held^them up and looked at them ; ahd Mr. Craig, he wae another Republican, stood right on the other side of him; and Mr. J. D. Hebert, he was' a Democratic supervisor, he stood on the other side ; and Mr. Hebert would take the tickets out, and he would say, "straight Republican ticket," or whatever the ticket might be, and these three men would look over. They would count the tickets to Mr. William A. Smith — he was the Democratic supervisor — and Mr. Smith held a needle with thread on it, and I took the tickets from Mr. Smith and put them on the needle, and Mr. Smith would pull the string. I put straight Republicaji tickets on one string ; that is, just as they handed them out. When we would come to a straight Democratic ticket, we would lay them in a separate pile, and when we would come to a scratched ticket we would lay them in a separate pile. The straight Republican tickets were strung ; then we strung the Democratic tickets. Q^. Did they string the scratched tickets ? — A. They were strung after they were counted, on a separate string. Q. In placing these tickets on the needle did you place the face of the ticket up- ward ? — A. The face upward. Q. Wd you scrutinize and notice what names were on those tickets as you placed them on the needle ? —A. We did, because we noticed at the time that Mr. Carville wa» ' spelled •'Clarville," and also that Mr. Wheeler's name was spelled "Weeler" instead of " Wheeler." Q. Who first noticed these mistakes on the tickets ? — A. The one of Mr. Carville's was by Mj. Robert O. Hebert, and the one of Wheeler's I discovered it myself in dis- tributing'the tickets. . Q. You knew, Mr. Davidson, that these Republioan tickets with Mr. Aoklen's name on them were in existence before the election ? — A. Oh, yes. Q. Now, then, knowing that, and in stringing these tickets, did you carefully ob- serve whether any of those tickets with his name on them were voted ? — A. I did. Q. Were any of^them voted as a matter of fact at that poll ? — A. Not one. Q. Do you remember, Mr. Davidson, about the vote for member of Congress at that poll ? — A. Three hundred and odd ; I don't exactly know. Q. Well, about how many ? — A. About one hundred and fifteen for Mr. Acklen or one hundred and fourteen. Q. Have you heard of a recount that was made of the votes in that poll ? — A. I have heard of it. Q. Have yon heard or do you know the number of votes for member of Congress in that recount as claimed ? — A. I seen, according to what was published in the Times, there has been a change of about three hundred votes, something in the neighborhood of three hundred votes. Q. Could a mistake of that magnitude have been possible in the manner in which these tickets were counted and scrutinized? — A. No, sir; because every one there seemed anxious to see them counted. There was more Democratic spectators there than Repiiblicans. Q. How, then, do you account for the change in the number of votes as called for in this recount ? — A. I cannot account for it unless the boxes had been stufied since they have been deposited in the clerk's hands. Craig (p, 272) : Q. Did you assist in counting the votes, as polled, after the election ?— A. Yes, sir ;; I did. ■ Q. Did you examine the tickets carefully and scrutinize all the names on the tickets ? — A. Yes, sir : I did, to the best of my knowledge. Q. Did you handle the tickets yourself? — A. Yes, sir. Q. All of them? — A. Yes, sir; I had taken the tdokets out with the assistance of Mr. Robert Hebert ; and Mr. Smith was also on one side tallying, and Mr. Robert Hebert was on the other. I scrutinized the tickets from the box. Q. Have you heard of the recount of the vote for Congressman, made at the request of Mr. Acklen, at your poU ? — A. Yes, sir ; I have heard of it. Q. In counting these tickets, are you sure Mr. Acklen's name was not on any of the Republican tickets? — A. Yes, sir; I am sure of that; his name was not on. Q. Mr. Craig, it is claimed in this recount that instead of 394 Mr. Darrall re- ceived only 86 votes at your poll. Could such a mistake have been possible ? — A. It i» impossible, sir, from the very reason that the tickets were counted too careful by R. Hebert, who was standing just behind me. Him and I looked over the tickets very oarefally, and there could not have been possibly such a mistake. Q. Could it have been possible that instead of 115 votes Mr. Acklen had 340 votes in your box ? Could such a mistake have been possible ? — A. It is impossible, sir, t» my eye-sight. Q. Is your eye-sight good? — A. Perfectly good, sir. 160 DIGEST OF ELECTION OASES. , Q. Could it liave been possible, Mr. Craig, that there was 90 of those votes that had no name on for Congress? — A. No, sir ; it could not have been possible. Q. Mr. Craig, how would you account,- then, for this diifei'ence between the vote as you counted it, which was 394 for Darrall and 115 for Aoklen, and the vote as claimed in this recount ? How would you explain that ?— A. It would be impossible for me to say Mr. Acklen was elected there by the Republican votes unless we were all blind. Poll 5.— The commissioners of election were Talbott, Buttrick, and Coleman ; United States supervisors were Parker and Gourrier. All testified. Talbott, Democrat, a lawyer (p. 46) : Q. Describe the manner in -which the votes at that poll were counted. — A. Well, the straight Republican tickets and the straight Democratic tickets and the scratched tickets were each placed separately in piles, and the aggregate number of each was put down on the tally-sheet. Q. What was the color of the straight Republican tickets issued to the voters in this pariah ?— A. I think it was dark color, sir. Q. Did you after the election ascertain or hear the fact that some of those Repub- lican tickets bore the name of J. H. Acklen for Congress instead of that of C. B. Dar- rall? — A. 1 could not say that I did. , Q. In the way that you counted those tickets, could the name of J. H. Acklen have been on some of them without your seeing it? — A. Well, yes, sir; that might possibly have occurred. Q. After you finished the count what did you do with the tickets? — ^A. We placed them in the box and sealed it. I do not think that the opening of the lock was sealed. Gourrier, Democratic supervisor (p. 86) : Q. Did you participate in the counting of the votes? — A. No, sir; I just stood there and saw them coming out. I did not examine any tickets nor count them. I helped to make out the tally-sheets in advance of opening the box, and after they were run up until they were no use I cast them aside. Buttrick, Republican commissioner (pp. 238 and 240) : Q. Did you see any Republican ticket on the day of election that did not have the name of the Republican nominee upon it ? — A. No, sir. Q. Did you see any previous to the day of election? — A. I did. I saw a ticket the day previous to the election. Q. What kind of a ticket was that ? Did it resemble the regular Republican ticket ? — A. Exactly ; except Mr. Acklen's name was in place of Mr. Darrall's. i Q. Were any of those tickets distributed on the day of election to jour knowledge? — A. Not to my knowledge. Q. Were any of them voted at the poll where you were the commissioner? — ^A. No, sir; not at the poll at which I was a commissioner. Q. In what manner were the votes counted by the commissioners of election? — ^A. They were taken from the box by Mr. Coleman, the Republican commissioner, passed then to Mr. Talbert, who examined the tickets, saw that it was not scratched — exam- ined the face of the ticket — and where the ticket showed straight it was laid in a pile by itself, the straight Democratic and straight Republican tickets. They were then counted; then the scratched tickets were called off. Q. Were these tickets carefully scrutinized as they were taken from the box? — A. By the two commissioners; not by myself, but by Messrs. Talbot and Coleman. 'Q. Were they carefully scrutinized by the United States commissioners? — A. One of the commissioners. Q. Which one?— A. I can't give you his name. Q. Mr. Parker? — A. Yes, sir; Mr. Parker scrutinized the tickets. Mr. Gourrier, the Democratic supervisor, and I laid off ajxd made up the returns. Q. Do you remember the number of votes cast for member of Congress at that poll? — A. I think it was 270. Q. That was the total?— A. The total was 270. Q. Do you know how many was cast for each candidate? — A. There was 63 votes for Mr. Acklen and 207 for Mr. Darrall. Q. Your official return shows that? — A. Yes, sir; it does show that. Q. Are you satisfied that that return was correct in every particular? — A. I am sat- isfied. I swore to it. Q. Could there have been any material mistake the way the tickets were counted T — A. I don't think there could have been any mistake at all; certainly not material mistake. Q. Have you heard, or do you know, the result of the recount of the votes in that ACKLEN VS. DARRALL. 161 "box for member of Congress? — A. I heard that it altered it very, material ; that it made a material alteration. Q. Could it have been possible, on the ballots as yon counted them, there would be only 79 votes cast for Mr. Darrall instead of 207? — A. No, sir. Q. Could it have been possible for Mr. Aoklen's name to have been on one hundred «nd fifty-eight of those tickets instead of sixty -three? — A. Impossible. Cross : Q. I understand you to have stated that these tickets -were taken out of the box by Coleman; and they were handed to Talbert and scrutinized by him, and that yon and Mr. Gnerrifere laid oif and made up the tally-sheets? — A. Yes, sir. Q. Under the circumstances could you have seen every name on every ticket that was scrutinized by Mr. Talbert? — A. Certainly I did not see any of them. Q. Had the name of J. H. Acklen been on many of those tickets scrutinized by Mr. Talbert, and as yon did not see any of them,'can you swear that such could not have been the case without your knowledge? — A. Yes, sir; because I have complete knowl- edge of Mr. Talbert and Mr. Coleman. I know that they are honest men and intelli- gent. Q. You swear purely as to their opinion of their honesty and not as to your knowl- edge of the tickets ? — ^A. I did not see the tickets at the same time that I swore to the returns. Q. Then yonr swearing to the returns did not prevent the fact of the tickets having had my name on for Congress instead of Dr. Darrall's being counted in an improper manner? — A. Yes, sir, it did. They were two gentlemenfully competent to do it, and in whom I had confidence, that scanned the tickets. One was a Democrat and the other a Republican ; pretty sure there was no cheating. Q. You are prepared to swear to the returns as given to you by Mr. Talbert? — A. Yes, sir. Q. Then you are prepared to swear to the returns upon Mr. Talbert's count and not upon your count ? — A. Yes, sir ; I am prepared to swear to the returns on Mr. Talbert's «ount and Mr. Coleman's. Q. Had Mr. Talbert afterward sworn that he did not scrutinize the tickets for the Congressional nominee, and that that mistake could have occurred because he tabu- lated the tickets in bulk, would you have been then willing to have sworn to the re- turns without examining the tickets yourself? — A. Afterseeiug Mr. Talbert's scrutiny ' I should very much doubt whether he would swear to anything of the kind, because! know that he examined the tickets very carefully and the face of the tickets. Coleman, Eepublican commissioner (p. 255:) Q. Did you assist in counting the votes as polled after the election ? — ^A. Yes, sir. Q. Did you carefully examine and scrutinize the ticket and every name on the tick- et?— A. Yes, sir; I did. Q. Who assisted you in making this scrutiny of the tickets? — ^. Mr. Parker first; after Mr. Parker, then I and Mr. Talbert. Q. Were these gentlemen also officers of the election?— A. Yes, sir; they were. Q. Then the three officers of the election scrutinized the tickets? — A. Yes, sir. Q. Would it not be utterly impossible for three commissioners of election, assisted by two United States supervisors of election, all acting under oath, to have made any material mistake in counting and compiling the vote ?— A. I don't think that many men could make a mistake looking over one ticket ; there were three men examined the ticket. Q. At your poll were there three commissioners and two United States supervisors? — A. Yes, sir; there were. Q. Including yourself ?— A. Yes, sir; including myself. Q. Mr. Coleman, have you heard of the recount of the vote for member of Congress, made at the request of Mr. Acklen at the box where you were present? — A. Yes, sir; I have. Q. Can you give the vote for the member of Congress at your poll, as you counted them, assisted by the other commissioners, as near as you recollect ? — A. To my remembrance, as near as I can come at it, it is about two hundred and seven ; that is as hear as my*remembrance is. Q. What Was the vote of the other? — A. Sixty-three, if I am not mistaken. Q. Do you know or have you heard how many votes were given to each member of Congress on the recount of your box? — ^A. By the recount? No, sir; I cannot say positively. Q. It is claimed by the receiver of the votes at your poll that there was in the box thirty-two tickets which did not have any name on them for Congress. 'Would or would not the conmiissioners have discovered that fact in counting these blank votes? — A. They would, Mr. Darrall. H. Mis. 58 11 162 DIGEST OF ELECTION CASES. Q. It is also claimed by the recount at this poll that Mr. Darrall only received 79 votes instead of 207. Would such a mistake have been possible ? — A. I don't think it were possible. Q. Did you seal the box before bringing it to the court-house ?— A. Yes, sir. Q. In what manner ?— A. I sealed it over the hole where the ballots were shoved in. The key-hole— I did not seal it. I sealed the ballot-hole, and delivered the box to the constable. I kept the key until the! box was delivered to the clerk of th& court ; then I delivered him the key. Q. Were yon assisted in sealing the box by the other commissioners ? — A. Yes, sir ; I ■'^as. ^ . Q. Did you place any sealor any paper over the key-hole ? — A. No, sir ; none at all. Q. Mr. Coleman, how do you account for the difference between the votes as counted by yourself and the commissioners at the poll and the votes counted in that box on the recount ?— A. I don't exactly understand you. The only way that I see it could have occurred, there was more tickets counted than was put in there. Be- cause I am confident within myself that the other three officers were there with me, and I don't think the mistake could have been made. The onliest way I see how it could be, they were counted and put in afterward. Q. From the manner in which those boxes were sealed and delivered to the clerk's office, could the box have been unlocked and the tickets changed at any time 1— A. Of course. Cross : Q. Now, Mr. Coleman, will you please describe exactly how this count was made, as you did not previously describe it carefully^the count of the tickets ? — A. The way them tickets was counted, I unlocked the box ; then I taken — myself and Parker — ^taken the tickets out, and laying them all out straight on the barrel, the straight Kepublican tickets all to themselves, and the straight Democratic tickets aUto them- selves, and the scratched tickets all to themselves, in separate piles ; then we taken the straight Eepublican tickets, wrote each name down on the ticket carefully as we could, and each name was given his complement of votes, his number of votes ; the names was taken down as they were on the ticket, and were written down ; and the Democratic tickets the same way ; and the scratched tickets was counted, and those that were not scratched ; the name was taken down straight on the ticket, the names- written, and the complement of votes written down. Q. Did you handle all the tickets yourseK? — A. Yes, sir. ;^arker, Eepublican supervisor (pp. 258 and 259 :) Q. Did you assist in counting the votes as polled, after the election ? — A. Yes, sir. Q. Did you examine and scrutinize each ticket, and the name on each ticket care- fully ? — A. Yes, sir ; I did, carefully. Q. Who assisted you in making this scrutiny of the tickets? — A. There was Mr. Coleman, Mr. Tolbert, and mjrself. Q. Would it not be utterly impossible for three commissioners of election and two United States supervisors of election, all acting under oath, to have made any mate- rial mistake in counting and compiling the vote ? — A. Yes, sir ; it would. Q. Were there three commissioners and two United States supervisors at your poll, including yourself ? — A. Yes, sir. Q. Have you heard of the recount of the votes of that box (for Congressman) made at the request of Mr. Acklen ? — A. Yes, sir ; I have. Q. Did this recount, as you understand, make any material change in the vote for member of Congress ? — A. Yes, sir ; it made a great deal of change. Q. Give the number of votes, as near as you recollect, of each candidate for Con- gress received at your poll? — A. Darrall 207, and Acklen 63. Q. Do you know how many votes each candidate was accredited with on this re- count J have you heard or do you know ? — ^A. No, sir ; I have not heard. Q. It is claimed by this recount that the vote for Congressman at poll 5 — that there were in the box thirty-two blank tickets for member of Congress. Would or not the commissioners have discovered that fact in counting the votes, if such had been the fact? — A. Yes, sir; they would. Q. It is also claimed on the recount at poll 5 that Mr. Darrall only received 79 votes instead of 207. Would such a mistake have been possible ? — A. No, sir ; it would not. Q;- It is also claimed that Mr. Acklen received 158 votes instead of 63. As the votes were counted and compiled, would such a mistake have been possible ? — A. No, sir. Q. Mr. Parker, how do you account for the difference between the votes for mem- ber of Congress as you and the other officers counted it on the day of the election, and the vote according to this recount? — A. It seems to me that there is something wrong about the ballots, the votes. ACKLEN VS. DAREALL. • 163 Q. You mean there was something wrong when you counted them ? — A. No, sir ; there was nothing wrong about them when I counted them ; they was wrong when they were recounted. Q. As you and the other commissioners counted them, could there have been any- thing wrong without your seeing it ? — A. No, sir ; there could not. Poll 6. — Wilson and Jolmson, Eepublican commissioners, and Felix Eoth, Democratic commissioner, testified. Felix Rotli, Democrat (p. 55) : Qi Did you count or assist in counting the votes there ? — A. I did, sir. Q. Describe the way in which the votes were counted. — A. The tickets were piled in three different lota. Q. What was.the color of the straight Republican ticket issued in this parish ? — A. The Eepublican ticket had a black back similar to the one you are holding in your hand. Q. In the way in which those votes were counted could my name have been on some of them without your seeing it ? — A. It might have been, sir ; although I took a good deal of precaution to look over it. Q. You represented the Demecratic party at that poll?^^A. Yes, sir. Q. You certified the returns from that poll as being correct ? — A. Yes, sir ; and it was correct as far as I could do it, sir. The only thing I might have slipped was the name in this case. I had very little comfort and a great deal of difficulty. It was one of the coldest nights that I ever saw in my life and I had no' fire. That was the only thing that might have happened ; errors might have happened. I do not pretend to be correct in every case; I tried to do justice to both parties. Q. Did you take the tickets from the box ? — A. Yes, sir. Q. Were they scrutinized by anybody else but you? — A. Yes, sir; two others. I appointed two others to keep the tally. Thomas Jolmson, Eepublican (p. 57) : Q. Did you count or help count the votes at that pollf — A. Yes, sir. Q. How did you take them out of the box ? — A. I took them out of the box and gave them to another person to call them out. Mr. Roth, the other commissioner, was there. We then put them down in the tally-sheets. Q. Did yon arrange them all in piles ? — ^A. Yes, sir ; the Republican tickets together. We had two Eepublican tickets, the blue ticket and the black ticket, and then we had the straight Democratic ticket. We counted each together. Q. Did you after the election hear that J. H. Acklen's name was on some of the Republican tickets? — ^A. No, sir; I did not. Q. What was the color of the Republican ticket? — A. There was one black one and one blue one, and the Democratic ticket was a plain white one. Q. After you finished the count what did you do with the tickets ? — A. Put them in the box. Q. Did you deliver the box to the clerk of the court yourself? — ^A. No, sir; I did not ; I sent it by the supervisor of registration. Q. What was his name? — A. Mr. A. J. Barnes. Cross-examined by Mr. Jolley : Q. Were you a Republican commissioner ? — A. Yes, sir ; I was nominated by the Republicans here for commissioner. Q. In looking over those 'tickets did you scrutinize them very carefully? — A. I took all my attention on those tickets. Q. You certified to the returns as being correct? — A. Yes, sir; as correct. Ed. Wilson, Eepublican (p. 266) : Q. Did you assist in counting the votes as polled, after the election? — ^A. Yes,, sir. Q. Did you scrutinize and examine the tickets carefully? — A. Yes, sir; I examined all the tickets. Q. Did you examine all the names on the tickets as you took them from the box? — A. Yes, sir ; one at a time. Q. Did you take all the tickets from the box yourself? — A. Yes, sir; I was the only one. Q. As you took each ticket out separately, did you examine it in the manner you have spoken? — ^A. Yes, sir. Q. Was the count of the votes and the returns as certified to by yourself for mem- ber of Congress correct in every particular ? — A. Yes, sir. Q. Would it not have been impossible for three commissioners of election, assisted by two United States supervisors, all acting under oath, to have made any material mistake in counting and compiling the votes? — A. Yes, sir. 164 DIGEST OF ELECTION CASES. Q. Was there three commissioners and two United States supervisors at yonr poll ? — ^A. Yes, sir. Q. How many of those officers were Democrats? — A. Three. ^3. Have you heard of the recount of the votes at your poU for member of Congress, imade at the request of Mr. Ackleu? — A. Yes, sir; I believe I heard about that. Q. Can you give the number of votes polled for member of Congress at that, yonr poll, actually cast ? — A. No, sir. Q. Or about the number ? — A. They was all counted, and it was down on the tally. Q. Did not Mr. Darrall receive a large majority of the votes cast?— A. Yes, sir. Q. It is claimed by this recount of the votes that Mr. Acklen received a large ma- jority. Could that have been possible, to have made a mistake of that kind ; could it have been possible for you to make a mistake of that kind? — A. No, sir. I could not have made no mistake in counting the votes. Q. You have said that you carefully scrutinized every ticket? — A. Every ticket that came out of the box. Q. Was Mr. Acklen's name on any of the Eepublican tickets? — A. No, sir. Q. Not- one ?— A. No, sir. Q. Neither on the black nor the blue tickets ? — A. No, sir. .Q. In counting these votes, could it have been possible that the name of the candi- date for Congress on one huudred and thirty-five tickets would be blank and you not «ee it ? — A. No, sir. Q. And you can positively Swear that you examined the names on every ticket t — A. Yes, sir. I took them out one by one. Poll 7. — Le Blanc, commissioner, a Eepublican (called by contest- ant), and Carville, Kepublican supervisor, testified : Adonis Le Blanc (j). 58) : t^. Did you count or help count the votes there? — A. I kept a tally. Q. State how the votes were taken out of the box and assorted and counted.— A. So far as I paid attention the.v were taken by the handful and spread on the table, and the Eepublican votes were put on one side and the Democratic votes on another. If they got in with the Eepublican tickets they kept them until they got up to ten, t believe, and they tallied them. So far as taking them out of the box is concerned, they were taken out by the handful. Q. You say you cannot identify the bflx? — A. No, sir; I cannot. ■Q. Were you a commissioner for the Eepublicans or for the Democrats ? — A. For the Kepublicans. Q. Did you handle any of the tickets yourself ?^A. No, sir ; none of them. Q. You certiiied to the returns from that poll? — A. Yes, sir, so far as the counting •was concerned ; that is, from what Mr. AUian and Mr. Carville stated. J. G. Carville (pp. 197-200), member of the legislature : ^. Did you witness and scrutinize the counting of all the votes there T — A. Yes, sir. Q. Did you haudle any of the tickets?— A. No, sir; I did not handle any of the tickets at the count. I only examined them by looking at the commissioners as they ■ counted them. Q. Looking over the shoulders of the commissioners ? — A. Yes, sir. I did not handle - any of the tickets. Q. JDid you see the returns made by the commissioners signed? — A. I did. ■ Q. Were the returns certified to by all the commissioners as correct ? — A. They were • the time of your delivering them to your successor ? — A. Yes, sir. (The clerk here brought in the box froiii poll No. 7.) Q. Mr. Adonis Le Blanc said that he could not distinctly testify as to that box. Can you swear that that was the box delivered to you from that poll, as clerk of the court f — A. I know that it is, and the reason is that I observed that they did not comply with the law in regard to putting the names on it. This box came from Deslonde's. office to this office. Q. Does everybody have access through this door during the day ? — A. The boxee- were deposited here in the clerk's office whilst I was clerk, and I had them piled up. here. Q. Are all these windows closed every night ? — A. Yes, sir ; it is the clerk's duty to- do it. Q. You carried the key of the office while you were clerk? — A. Yes, sir. Q. As there are no other papers on that box from poll No. 7, how do you identify it from the others ? — A. That is what I observed on the box, and that is the way I iden- tify it now. I remember it as coming from poll No. 7. Q. But you do not know whether these papers were on it or not ? — A. That is th« way 1 identify it. I noticed they had not complied with the law. Gordon, elected clerk, Acklen's witness (pp. 60, 61) : Q. You are at present clerk of the parish court? — A. Yes, sir. Q. You are at present in custody of the ballot-boxes in this court? — A. Yes, sir. Q. Who delivered them to you ?^A. My predecessor. Judge Crowell. Q. Have those boxes been in your sole possession ever since they were delivered t» you up to the present time? — A. Yes, sir. Q. Can you swear positively, beyond all question, that to the best of your knowl- edge these boxes have been safely in your keeping up tothe present time ? — A. Yes, sir. Q. Are the fastenings of the clerk's office here secure ? — ^A. Yes, sir. Always whem we go away from here at night we fasten these windows on the outside, and when they slam to they cannot be opened from the outside at all. Q. If there had been any entrance made into the building during your absence from it could you have detected it ? — A. Yes, sir ; they would have had to break th« lock or pulled out the wedge from the fastenings of the windows. I am here during the day all the! time. Q. One of the witnesses testified that he did not remember a certain box because it did not have his signature on it. You have examined the box, and the judge has tes- ACKLEN VS. DARRALL. 16^ tifiedthat that was tlie box delivered tp him and that it was in the same condition in "which it was delivered by the witness. Is that the box that he delivered over to you f [Shown box already produced by the clerk.] — A. That is the same box that was de- livered to me by my predecessor Q. Is it in the same condition in which you received it ? — A. Yes, sir. Q. Now, one of the witnesses noticed that over the bey-hole of one box the paper had been fractured. These boxes have been in your possession. How do you account for that ? — A. Well, from the simple fact that anybody can come to this office and ex- amine these boxes and sit in the office, and all my predecessors will tell you that the office is very damp and you can catch the pneumonia or anything else here. For this reason I say that the dampness has softened the wax in such a way that the papers- have become loose ; and I think it very likely, too, that in removing the boxesfrom this place to that place I may have dented them in some way. Every day I sweep up this office, and you will find that considerable dust accumulates, and very likely in dusting the box I might have knocked a hole in it, or at least in the paper. [The wituHss here produced a worn-out and dilapidated duster and exhibited it to the judge and the bystanders.] Q. Is not that a very poor brush ? — A. Yes, sir. ' Q. Everything is nearly worn off, except the stick part of it, is it not 1 — A. Yes, sir ; nearly everything. Q. These boxes have been moved several times, have they not ? — A. Yes, sir. That table there used to run right alongside this window, and I took them away from there and put them underneath to give me room. Then afterwards we changed them around so that we could open the blinds, and I put them where they are now. Q. That is the only box that shows any fracture of the papers on it, and you account for that through the moving of the boxes or some carelessness or something of that kind? — A. Yes, sir; carelessness on my part in moving them. Q. Have you the keys of all these boxes ? — ^A. Yes, sir ; they are in my possession ia the office somewhere, but I would have to look for them. Q. Bo you know where they are now f — A. No, sir ; but they are in the office. Q. They are in some of the pigeon-holes ? — A. They are inside of the desk, I guess. Q. You do not carry them with you at all ? — A. No, sir. Landry, deputy clerk, Democrat (p. 62) : Q. Yon see the boxes every day or two? — A. Yes, sir. Q. If they had been tampered with overnight or at any time would that fact have been noticed by you, do you think ? — ^A. Yes, sir ; so far as I know, the boxes have never been tampered with, so far as taking any papers out or adding any papers to them or anything of that kind. Q. Is this court-house not very damp ? — A. Yes, sir ; I say that the dampness of the office would aflfect the seals of the boxes if they are sealed with mucilage. Now, I do- not know whether it could affect the sealing-wax, but if the dampness does affect the sealing-wax they would be affected in this office, because this office is very damp. Q. Have not those boxes been removfed several times ? — A. They were moved twicft to my knowledge. Q. Is it not possible that some of those papers on the boxes and some of the wax might have been loosened by the moving of those boxes ? — ^A. Yes, sir ; on account of the dampness, which might have unglued some of the paper on them. In moving them some of the papers might have dropped off, for all I know. You will find even now that some of them are very loose. Cross-examined by Mr. Jollby : Q. Those boxes that have the papers broken on them were sealed with wax ? — A. Well, I could not swear to that fact. I could only swear to them as I see them now, that they are sealed with wax. I never examined the boxes to see what they were sealed with when they first came in. Q. Did you ever examine those boxes before to-day as carefully as you have now since you have been here as deputy clerk ? — A. Well, I cannot say that I examined all of them carefully. I examined some of them the other day. The clerk, in order to make more room, moved them the other day and corded them as you see them there, and I remarked that some of them seemed to be loose. I did not pay attention which boxes particularly were loose or not, but I noticed that some of the labels were en- tirely unglued. THE LAW OF LOUISIANA AS TO THE APPOINTMENT OP OFFICERS OF ELECTION. The statute of Louisiana makes the following provision : Sec. 8. Beit further enacted, ^e., That the election at each poll or voting place shall 170 DIGEST OF ELECTION CASES. be presided over Ijy three commissioners of election, residents of the parish for at least "twelve months next preceding the day of election, who shall he selected from differetit political parties, and he of good standing in the party to which they belong, and who fihall, before entering upon the discharge of their duties, take and subscribe the oath prescribed for State officers. Should only one of the commissioners appointed be pres- ent at the hour for opening the poll, he shall appoint another, and both together shall appoint a third, and the commissioners so appointed shall take the oath and perform all the duties of commissioners of election in the same manner as if they had been appointed as provided for regular appointment of commissioners by this act. Any one of the commissioners shall be authorized to administer the oath to the other oommis- -fiioners. This law was carefully complied with, as appears from the following testimony. It will be noticed that selections were made from both political parties ; that those selections were made on the recommenda- tion of the president of the parish committees of the two parties re- spectively. It is to be presumed that the men thus recommended and selected would be men whom the respective parties had confidence in and felt they could rely upon to see that the utmost fairness prevailed in the voting and in the counting of the votes. But, in addition to this presumption, we have the testimony directly showing that they, were fit and competent men. P. V. Deslonde, Eepublican, parish supervisor (pp. 204= and 206) : Question. Mr. Deslonde, upon whose recommendation did you appoint the commis- sioners of election? — Answer. Of the chairman of the Democratic committee and a member of the Eepublican or the president of the Eepublican committee. Q. State who was the president of the Eepublican parish committee. — A. I be- lieve it was P. Gr. Deslonde. Q. Who was the president of the Democratic parish committee ? — A. Jacob MoWill- iams. Q. Did you request in writing the chairman of the Eepublican committee to furnish you names of commissioners ? — A. Yes, sir ; I did. Q. Did you make the same request in writing to the chairman of the Democratic ■committee? — A. I did. Q. Did they furnish you the names of the various commissioners of the polls? — ^A. They did. Q. Did you know the commissioners at poll 5, in the third ward ? — A. Mr. Tolbert was one. Q. What was the number of the commissioners at that poll? — A. I recollect two; Mr. Tolbert on the Democratic side and George Buttriok on the Republican side. Q. Were they all competent men ? — A. They was. Q. Did you consider, as far as you know or are acquainted, that the commissioners of election at all of these different polls were competent, intelligent men to perform the duties of the office ? — A. They was. Q. What was the vote of the Grosse T6te poll? — A. That is the only box that went against Dr. Darrall as returned, because it is the closest, and Dr. Darrall had one hun- dred and odd votes and Mr. Acklen two hundred and odd votes. Q. Mr. Deslonde, you made your consolidated return from the returns as given you by the commiasioners of election ? — ^A. Yes, sir. , Q. You then swore to the correctness of your returns as based upon the returns as made by the commissioners ? — A. Yes, sir ; I swore each one of them after they made thei« returns to me, and then I go to the clerk of the court and swear to my consoli- dated returns. Hon. George Wailes, Democratic candidate for senate (pp. 116, 117, 118) : Q. You were the regular nominee of the Democratic party for senator from this dis- trict, were you not ? — A. Yes, sir. • Q. Were you a member of the Democratic parish executive committee ? — A. No, sir ; I was not. Q. Did the Democratic party have a representative at each poll in the parish ? — A. Well, I was present only at this poll, but I suppose they did. I have no doubt that they did have, and in fact it was understood that they did have. Q. Was not a Democratic commissioner appointed by the registrar for each poU in the parish ? — A. I believe so, sir. Q. Was not a Democratic United States supervisor appointed for each poll in the ACKLEN VS. DARRALL. 171 parish f — A. Well, I cannot tell you that. I presume so, but I do not know that there was. Q. Was it generally known to the Democratic party of this parish that Mr. Wharton was supporting Mr. Acklen previous to the election ? — A. Yes, sir ; I think it was gen- erally known. The fact is that the question was discussed in the Democratic party in this parish as to whether or not they would run a candidate for the senate. Some gentlemen of the party were in favor of mating no nomination at all, and of casting the vote for Wharton, or allowing the vote to be split lip, thinking that we could ac- complish something by that ; but the party in convention determined differently. They, therefore, nominated me and brought me out two days before the election. I was not announced as a candidate until my name appeared upon the tickets. Q. Did the leading Democrats of the parish know that Mr. Acklen's name was on the regular Republican ticket for Congress? — A. I think they did, sir. Q. Then it was generally known by the party in that parish that his name was printed on the regular Republican ticket? — A. Well, it was generally known that his name was on the ticket that we considered as the regular Republican ticket. We knew that there were Republican tickets upon which his name did not appear, though. Q. They knew, of course, that Mr. Darrall's name was on the ticket also, and that he was the regular nominee of the Republican party for Congress ? — A. Yes, sir. Q. They knew also that there was a regular Republican ticket in existence with the Congressman's name left in blank ? — A. Yes, sir ; they knew that also ; it was a Re- publican ticket in all respects, except that there was a blank left for the Congress- man ; it contained the names of the Republican electors and the candidates for the State offices, and so on. Q. Were not the Democratic commissioners at the different polls competent and energetic men ? — A. Well, I do not recollect who the commissioners were. The com- missioners at the poll in this place were competent and intelligent men. Q. Do you know Mr. Edward Talbot ? — A. Yes, sir. Q. Is he a competent man, and was he an energetic supporter of the Democratic party? — A. Yes, sir. Q. Do you know Mr. Gourrier ? — A. Yes, sir. Q. He was a strong supporter of the Democratic party, was he not ? — A. Yes, sir; I think so. Q. Both of those gentlemen were supporters of Mr. Acklen ? — A. Yes, sir ; as far as I knew, they were. Q. Do you know Mr. Julian Allain ? — A. Yes, sir. Q. Is he a strong supporter of the Democratic party ? — A. Yes, sir ; he is a Demo- crat. He has since removed from this parish. I think he was always considered to be a consistent Democrat. Q. Is he a competent man ? — A. O, yes, sir. Q. Do you know Felix Roux ? — ^A. Yes, sir. ' Q. Is he a representative of the Democratic party ? — A. He is a Democrat, sir. Q. Is he a competent man ? — A. I think he is competent to fill the place of commis- sioner. Q. Do you know William A. Smith ? — A. Yes, sir. Q. What are his politics ? — A. I think he is a Democrat, although he voted for some of the Republican officers in this parish^some of the candidates for parochial offices. Q. Was he a supporter of Mr. Acklen for Congress? — A. I presume he was, but I do not know it. Q. Is he a competent man for commissioner f — ^A. Well, he is not' a very-active man, sir; I think he is a little slow. He does not write very well. He is a very honest gentleman and stands very high in the community. His education is not the very best. Q. He reads well ? — A. I think he does ; yes, sir. Q. He reads well enough to discover the name of Mr. Acklen on the Republican ticket by examining it f — A. Yes, sir; no doubt of that. Q. Do you know Mr. Amad^e Roux ? — A. Yes, sir. ~ Q. Was he a competent commissioner ? — A. I believe so. Q. Was he a Democrat ? — A. Yes, sir ; I believe so. i , Q. Do you think these different gentlemen whom I have named, and whom you say you know, would have allowed anything wrong to occur in any way during the count- ing of the votes? — A. I do not tUink they would, sir; not one of them. Q. Do you think they would have been diligent in examining the ballots to see that nothing wrong occurred in the counting ? — A. Well, I presume they would have been. I do not know what they actually did do, except at this poll here. Q. Do you think that they would certify and swear to a return without knowing of their own knowledge that it was correct ?^A. I do not think they would certify and swear to a return unless they believed it to be correct. 172 DIGEST OF ELECTION CASES. DISTKIBXJTION OF REPUBLICAN TICKETS WITH CONTESTANT'S NAME ON THEM. Contestant attempts to strengthen his claim that there -was a mistake in the official count by trying to prove that Republican tickets were printed and distributed with contestant's name on them. That such tickets were printed is proven ; that they were carried into the parish in question is also proven ; and that they were attempted to be gotten into the hands of the voters and the voters to be cheated by means of them is also quite clear, but it is equally clear that they were not distributed to the voters to any considerable extent. , This fraud on the voters was attempted to be perpetrated by W. W. Wharton, and, as will be seen by the subjoined testimony, he brought the tickets from Kew Orleans in bulk, and distributed th^m in bulk to the persons named, for use at the different polls. That they were not distributed to the voters, and that they were in some cases destroyed, appears from testimony below. It is shown by NVharton (witness for contestant) that he delivered the tickets for distribution at polls 1 and 2, to Hon. J. S. Davidson, to George Deslonde, to James H. Tate, and a man (name not known) sent by Davidson for tickets. (See Whar- ton's evidence, pp. 122 and 126.) Q. To whom did you give tickets to distribute in the first ward ? — A. Deslonde, Davidson, Tate, and some one else who was up here with them. A strong friend of mine down there came up for some. I forget his name now. I sent some by Mr. Tate and by some one else that Davidson sent here from Bayou Goula to get some tickets. Q. Was not that man's name Handy? — A. I forget his name now. This is all the evidence the contestant offers as to distribution, of tickets at these two polls. Davidson testifies as follows (pp. 248 and 249): Q. Did you take the tickets to your ward? — A. I took them down there. Q. Where did you get these tickets, and of whom * — A. I got the tickets from Major Wharton — weU, about sunset, at his room. I went to get tickets on Monday, the day previous to the election, and we were detained there all day, because the tickets were not ready, and about sunset we went into the room where the tickets was. Mr. Wharton told us the tickets were ready. He had the tickets all bundled up in bun- dles. He asked me if I would distribute some Eepubliean tickets with Mr. Aoklen's name on them. I told him no. He said, ' ' Why ? " I said, because I was a man ; that ie, when I wanted to beat a man, I wanted to be honest about it. That if I wanted to beat Mr. Darrall I wanted to be honest about it. I wanted to take one stand. He insisted on me to take the tickets down. I told him no, I did not want to distribute them or to have anything to do with them. After he insisted on me to take them I took the tickets. . He had the tickets all bundled up. I asked him how many tickets there were there. He said two thousand, and then 1 said, " Give them to me," and he gave them to me; and after looking into them, I think, perhaps that there were two thousand. I did not know how many of these Acklen tickets there were in there. I did not know how many there might be among them ; consequently I told him to give me two thousand five hundred tickets, and he gave them to me and Mr. Whita- Jker, another gentleman who was i.loug with me, and was one of the marshals to take charge of the box. I came out and stated to him — I told him of what proposition that had been made to me; that is, that the senator asked me to distribute these tickets in this manner, and I told him I didn't think it was right. He said, "Come down to my room, and we will scrutinize these tickets," and we went down to his room about 7 or half past 7, on the Bayou Goula, and me and Mr. Whitaker stopped there, and there we examined these tickets. In examining these tickets I found that there was about a thousand of the Kepublican tickets with Mr. Acklen's name on them. I took them out, me and Mr. Whitaker, and put them aside. We put the bal- ance of the tickets into the box, and he took them down to his room, about a couple of acres away from whertj^I reside. Q. The other tickets that were left in the box, what kind of tickets were they that you put in the box ; the fifteen hundred that Mr. Whitaker tools?— A. The straight Republican tickets. Q. What became of those tickets tlien ? When did you begin distributing them I — A. In the morning, just after the polls opened. ' ACKLEN VS. DAEEALL. 173 Q. Did you distribute any of the tickets with Mr. Acklen's name? — A. No, sir; I had them at my room. Q. Were they taken out of your room ? — A. No, sir. Q. What finally became of those tickets? — A. I burned them up. iQ. Did you burn up all of them? — A. I burnerl all of them that came down with Die; all of the thousand tickets. Q. Who distributed tickets on the morning of the election beside yourself and Mr. Whitaker, or did you distribute all the tickets ? — A. I distributed the tickets to men there who ga/ve them out to other men. I distributed them to men who could read and write. Q. How was there more than one poll in that ward, Mr. Davidson ? — ^A. There were two. Q. What was ihe other poll in the ward; do you know? — A. No. 1; the one that I have been referring to is No. 2. Q. Where was the poll No. 1 at? — A. At Adams's plantation. Q. Did you also send the tickets, the Republican tickets, to that poll? — A. I took them there ; yes, sir. Q. Did you take them there? — A. I did. Q. In what hands did you place them for distribution ? — A. In Mr. E. Verrett's. Q. What tind of tickets did you give Mr. Verrett for distribution at that poll ? — A. The straight Republican ticket. ' Q. Do you remember about the number that you gave him ? — A. I gave him five hundred. Q. Did you send him any more tickets than five hundred that you gave him for that poll? — A. Yes, sir. I wrote to Major Wharton for them. Q. How many of these tickets did you send him ? — A. I sent him five hundred more by an open note the next morning. The gentleman who I sent with them brought them, and on examining them I found they were printed blanl^ for member of Con- gress. I took them down then and I gave them to Mr. Verrett, and told him not to distribute more than one ticket at a time of the straight tickets, so if they had enough he would not have to use these blank tickets ; but whether he used any of them or not I am nut able to say. Q. Was Mr. Verrett an officer at that poll ? — A. Yes ; United States supervisor. Q. Did you tell him about these Aoklen tickets being in existence? — A. Yes, sir. Q. Did you give him any warning in regard to them ? — A. I did. Q. Please state it. — A. I told him there was such tickets, Republican tickets with Acklen's name on it, but I was satisfied there was none of them in that package I gajve him, and to be particular about distributing them, because there might not be enough. I told him to be careful about distributiug them. I reiterated to him that if there was not enough of these straight Republican tickets-he would have to use these blanks. Q. Then after giving Mr. Verrett three hundred of the straight Republican tickets you had about one thousand left for your poll? — A. Yes, sir. ' Q. Were these enough for distribution at this poll? — A. More than enough. Deslonde testifies (p. 201) that he did uot receive any of these bogus tickets from Wljarton aud distributed none. Tate (p. 57) testifies that he saw tickets at poll 1 with no name on for •Congress. These were the tickets taken by Davidson in the second package and given Verrett, 80 of which blank tickets were shown to have been voted by the returns of the commissioners at that poll. This appears in the count upon which Darrall's certificate was issued. The evidence is conclusive that none of the bogus tickets with Acklen's name on were in circulation or voted at these two polls, and yet it is claimed by the contestant that according to his recount there were voted at poll 1, 106 of the spurious Eepublican tickets, and at poll 2, 226, which were not discovered in making the oificial count. And this preposterous claim is set up in face of the above facts, as well as of the extreme care with which it is shown by th« evidence of both Demo- cratic and Eepublican officer? of election the ballots at these polls were coun]ted. Also let it be noticed that of all the witnesses who were examined regarding these two polls not one is found to say he voted one of the tickets with Acklen's name on. Wharton further says (p. 196) that he gave the tickets for poll 7 to •Oarville. 174 DIGEST OF ELECTION CASES. Hon. J. 0. Carville, a member of the legislature, testifies fully on this point (p. 196) : Q. Did you distribute the Republican tickets in your ward ? — A. I did. Q. Did you take all the Republican tickets to your ward and distribute them ? — A. I took all to my ward and distributed them. Q. To no other ward except your own ? — A. None, only my own ward. Q. What ward is that ?— A. "Ward No. 5, poll 7. Q. Were the tickets thus distributed the straight Republican ticket with the name of the regular nominee for Congress upon them ? — A. They were. Q. What was the color of the ticket? — A. Wehadtwo; one waswith aredface, and we had another ticket with a black back or a glaze back inclined to be black. Q. Were there any tickets distributed at your poll or in circulation, and voted by Republicans, except the straight Republican ticket having the name of the regular nominee for Congress on it ? — A. I knew of none, or none distributed. Q. And you distributed all the tickets yourself? — ^A. Yes, sir. Various witnesses are examined bj'' contestant, who say vaguely they sent tickets with Acklen's name on to this poll, but it is not shown that any of such tickets were taken there. E'either is it attempted to be proven that a single one of these bogus tickets, either with Acklen's name on or blank, were voted, or even seen at that poll. In face of these facts, contestant claims by his recount that 21 of the Acklen tickets and 73 blanks were voted which were not discovered in making the ofQcial count. The evidence above given is conclusive, and not contradicted, that none of the tickets with Acklen's name on were distributed at either of these three polls. Verrett distributed, as was said, blank tickets at poll 1, and some of them are shown by the of&cial count to have been voted. ' The fact that the official count discloses that the officers of election discovered these blank tickets in making that official count is conclu- sive that the officers of election carefully examined the tickets in making the count, and leaves no room for doubt that if Eepublican tickets had been voted with Acklen's name on them, they would have been discovered. Now, in the first place, we have here the spectacle of the contestant Peeking a seat in the House by reason of a fraud attempted to be per- petrated upon the voters of that parish. This fraud thus attempted to be perpetrated upon the voters of that parish is what is relied upon by the contestant to secure this seat, tos evidence is largely directed t& proving that this fraud was successfully perpetrated by getting the voters to deposit these spurious tickets. The contestant's case is there- fore one not to be looked upon with favor. But the evidence shows that the perpetration of this fraud was not accomplished. The officers of election were selected from both parties,^ as the law requires ; bogus tickets were not distributed or voted. In addition to this the testimony proves that the existence of these tickets was known before the election. Hon. George Wailes, Democratic candidate for senate, testifies (p. 117) : Q. Did the leading Democrats of the parish know that Mr. Acklen's name was on the regular Republican ticket for Congress ? — A. I think they did, sir. Q. Then it was generally known by the party in that parish that his name was printed on the regular Republican ticket ? — A. Well, it was generally known that his name was on the ticket that we considered as the regular Republican ticket. We knew that there were Republican tickets upon which his name did not appear. George Buttrick (p. 238) testifies : Q. Did you see any Republican ticket on the day of election that did not have the name of the Republican nominee upon it ? — A. No, sir. Q. Did you see any previous to the day of election ? — A. I did. I saw a ticket thft day previous to the election . ACKLEN VS. DAEEALL. 175 Q. What kind of a ticket was that f Did it resemble the regular Eepublioau ticket! — A. Exactly ; except that Mr. Aoklen's name was in place of Mr. DarraU's. Q. Where did you see this Eepublican ticket with A'cklen's name? — A. The day be- fore the election I saw it in the office of the Iberville South, a Democratic newspaper. Q. Did you see more than the one ticket at any time before the election or on the day of election ? — A. That is the only one that I seen. As has already appeared in the evidence before quoted, Davidson, Oarville, and others knew of the existence of these tickets. Then there is the fact that Democrats and Eepublicans were officers- at these polls, selected upon recommendation of the parties respectively, as above shovn ; then there is the additional fact that the official count was carefully made. Now, in the face of the fact that these tickets were known to be in existence ; that they were gotten up for the pur- pose of defeating Darrall ; that both Democrats and Eepublicans knew of all this, we are asked to believe that a large number of them were voted, and yet no one of these Democratic officials discovered, in mak- ing the count, that the name of Acklen was on them instead of that of Darrall. We are asked to believe that in making the official count mistakes^ were made at these five polling-places which we have been considering, such as are indicated by the two columns following. Official count, page 280 : For the Forty-ffth Congress, third Congressional district. Nninber of polls. i w 1 No. of votes. 218 394 207 301 187 No. of votes, it 2 115 5 63 Q .. ... 156 7 58 Total 1,307 436 Eecount (p. 13) of same polls : PoU. 1 1 X ., No. of votes. 150 340 158 228 79 No. of votes. 139 2 . ■- 8& 79 99 96 Total 955 499 , That is to say (taking for example poll 1), we are asked to believe that these Democratic officials stood by and saw tickets counted for Darrall to the number of 218, when there were only 160 that had his name on them, and that there were 139 with the name of Acklen on them, when only 44 were counted for him. This is simply preposter- ous. Such a mistake, in the nature of things, could not have occurred ; for it is admitting that of 1,307 votes counted for Darrall 808 of them were not for him, and no oije noticed it., although Democrats and Ee- publicans were both counting and watching. 176 DIGEST OF ELECTION CASES. In the language of one of the witnesses, this could not have occurred ^' unless we were blind." As to the bogus tickets being in general circulation at polls 5 and 6 the evidence is by no means clear, but there isno evidence to show that more than one was voted, while the officers of election swear positively that these bogus tickets were not in the boxes when they counted the ballots on the day of election. The contestant does, however, pro- duce evidence to prove that the contestee had some enemies in his own party, in Iberville Parish, who endeavored to defeat him. This is ad- mitted by contestee, and the committee are satisfied that such was the case, for an examination of the official returns from that parish shows that Darrall, the contestee, ran behind his ticket 213/Votes, and the contestant ahead of his ticket 113, making a difference against the •sitting member in that parish of 326 votes, which sufficiently accounts for tbe opposition in said parish, and all this was taken into the account when both the Kellogg and Kichols returning-boards gave the sitting member his certificate of election. If 808 bogus votes were cast out of a total of 1,307, is it not reasonable to suppose that 15 or 20 of them might have been found to testify to that fact ? and this would be the strongest and best evidence the contestant could produce; but after all the effort that has been made in this direction but one of these 800 can be ftmnd. The committee therefore are compelled to believe that these tickets were not in the boxes when the" votes were counted, on the day of elec- tion. Wharton's testimony referred to by contestant is to the effect that he knew on the day of the election that the count was incorrect; now if this be true, why did not he or contestant have a recount at once, or within the time prescribed by law for preserving the ballots ? Why wait until the time had expired fixed by law for keeping the ballot-boxes? If it be claimed that the government of Louisiana was theii in the hands of his political enemies, and that that was the reason, the committee do not understand why (it that was the reason) a recount was not asked for when the Nichols government came into power, and when a new can- vass by a new returning-board was had. But this recount was not asked for until it was discovered that this new returning-board arrived at sub- stuntially the same conclusion as the old one, and the Democratic gov- ernor gave the certificate of election to the same man that the Republican governor had. And it must not be forgotten that this Democratic gov- ernor never did give a certificate to the contestant in this case. Although he was at his office for six months after this recount he issued no cer- tificate, and none was issued to contestant until in the absence of the governor, and only three days before the meeting of Congress, the lieu- tenant governor issues the document under and by virtue of which con- testant claims. This, to say the least, has a suspicious look. SAINT martin's PARISH. Lieutenant-Governor Wiltz omits Saint Martin's Parish in his certifi- cate to the contestant. There are no reasons for not counting this parish. The contestant furnishes no evidence whatever to show unfairness in the election or fraud in the returns. The evidence, both of Democrats and Eepublicans in the record, is that the election was fair. The Nichols returning-board returned the parish for Darrall 1,095, for Acklen 1,028. The contestant files certificate of the clerk of court, that the records of his office show the vote as, Darrall 1,095, Acklen 1,028 (p. 16). And ACKLEN VS. DAREALL. 177 the unconditional agreement of the parties made before this committee, which is hereafter quoted, gives Darrall 1,095/ Aclclen 1,028. . In a contest for the parish offices, the Nichols' returning-board adopted, July 10, 1877, a resolution, found on p. 13, that they were not able to "decide who had been elected to those offices. This in no way applies to the vote of Saint Martin's for member of Congress, as the same board had already canvassed and declared the Congressional vote. LA POUECHE PARISH. There appear in the record various returns and much evidence regard- ing La Fourche. In a contest as to parish officers the matter went to the supreme court of the State. The district judge had decided the vote for sheriff as Democratic 2,001, Eepublican 2,017, a Eepublican majority of 16 (p. 11). Counting all the polls, and allowing the votes that would have been polled at ward 8, and deducting illegal votes, the " chief justice decides vote for sheriff" as Democratic 2,025, Eepublican 1,983, a Democratic ma- jority of 42. (See p. 12.) Lieutenant-Governor Wiltz in his certificate to contestant gives the vote of La Fourche as (p. 2) : Aoklen 2,086 Darrall 2,015 Acklen's majority 71 And we have allowed that to stand as the vote in our computation. The contestant has filed what is termed a certificate of election from Louis A. Wiltz, lieutenant-governor of Louisiana. This certificate was issued October 12, 1877 ; was received and referred to this committee by the House October 16, 1877. It purports to be based upon the follow- ing: Consolidated statement of the aggregate vote of the parishes constituting the third Congres- sional district of the State of Louisiana at an election held on the 7th day of November, 1876, under a writ of election dated Septemher 16, 1876, for Representatives in the Forty- fifth Congress of the United States, together with the recount of the vote of the parish of Iberville and th.e report of the board of canvassers in relation to the parish of Saint Martin's, in the third Congressional district. Names of parishes. s 'D 3 Ascension Assiunntlon — Terre Bonne .. Saint Mary Iberia Iia Fayette Vermulion Calcasien CaraeTon ia Fonrclie Saint Martin's. Iberville Totes. 1,215 1,67» 1,393 1,423 1,242 1,16T 955 1,291 225 Totol. 12, 621 12,666 This, it will be observed, embraces the five polls that were r^ected by the supervisors and the on» poll that was rejected by the Kellogg retnming-board. It will farther be observed that it entirely omits the parishes of Saint Martin's and Iberville. H. Mis. 58 ^12 178 DIGEST OF ELECTION CASES. This statement of the vote by parishes, as given above, is identical Tvith the count of the Nicholas returning-board, only that Saint Martin's and Iberville are omitted. AeUBEMBNT AS TO SAINT MAKTIN'S PARISH. By an agreement found in the Eecord, p. 172, the parties to this con- test decide to count Saint Martin's for Darrall, 1,095 ; for Acklen, 1,027. Joseph H. Acklen i vs. \ Before the Committee on Elections, House of Representatives. Chester B. Darkall. S It is hereby stipulated and agreed by and between the parties contestant and con- testee that, in the consideration and determination of the above-entitled case, the committee shall allow to the contestant ten hundred and twenty-seven (1,027) votes as having been lawfully cast, counted, and returned for him in the parish of Saint Martin's, in the State of Louisiana, and to the contestee ten hundred and, ninety-five (1,095) votes as having been lawfnlly cast, counted, and returned for him in said parish, and that said parties respectively lawfully received, and are entitled to the benefit of, the number of votes aforesaid on account of said parish. J. H. ACKLEN. C. B. DAERALL. If we then take the vote in the balance pf the district as claimed by the contestant, and which includes all the rejected polls, and add the parish of Saint Martin's, as it was agreed it should be counted, the vote will be as follows : Darrall, as per table : 12,621 Darrall, Saint Martin's (above) 1, 095 13,716 Acklen, as per table 12,666 Acklen (Saint Martin's) 1,028 13,694 Giving Darrall a majority, exclusive of all votes from Iberville, of 22 From the parish of Iberville, we have in the Eecord, first, the ofl&cial count and return, made by the ofQcers of election at the poUs of the actual votes as cast on the day of election. This official count and re- turn, as made and sworn to by the officers of election of both parties, and the compilation by the Kellogg and the MchoUs returning-boards, are the same ; that is, DarraU, 2,070 ; Acklen, 1,078. Next we have a recount of the ballots found in the boxes of this parish, which recount was made March 6, 1877. At this recount all of the ballot-boxes of Iberville Parish, eleven in number, were opened, and the ballots found in them counted. The recount of six of these boxes does not vary materially from the official count. The said six boxes were from polls 3, 4, 8, 9, 10, and 11, and the evidence of contestant's witnesses shows that these boxes were carefully sealed at the polls, and the seals were found intact when they were recounted. The official count and recount of these six boxes was as follows : PoU 3. Poll 4.. PoU 8. Poll 9.. PoUlO.. Poll 11.. Total. Official Gonnt. Saixall. Acklen, 176 128 54 121 193 91 763 223 33 58 251 Eecount. Darrall. Acklen, 189 105 55 122 193 90 219 34 S» 250 33 45 ACKLEN VS. DAKRALL. 179 The official count and recount of these six boxes only shows a differ- ence of seven votes, which difference is so small that it is not material, and was no doubt owing to the manner and hurry in which the votes were counted at the polls. Darrall's majority in six polls (official count) 121 Darrall's majority in six polls (recount) 114 If it be admitted that the recount of the ballots in these six boxes is the most correct, and that vote be added to the total vote of each party in the district as claimed by the contestant, we have : Darrall, as per table 13,716 Darrall, six boxes, Iberville 754 14, 470 Acilen, as per table 13, 693 Acklen, six boxes, Iberville 640 14, 333 A majority for Darrall of 137 Thus it is shown that, taking all that the contestant claims in the balance of the district, and taking his recount of these six uncontested boxes in Iberville, the contestee still has a majority of 137 votes. The other five boxes in this parish, that is, boxes from polls 1, 2, 5, 6, and 7, show a most surprising difference between the official count as made at the polls and the recount made four months afterward. The evidence of contestant's witnesses (which has been quoted) shows that some of these boxes were not properly sealed, and others were found with the seals broken at the recount. The official count and recount of these five contested boxes was as follows : Ofiicial count. Eecount. Darrall. Acilen. DarralL Acklen. Blank. Poni 218 394 207 301 187 44 lis 63 156 58 139 86 79 99 96 150 340 158 228 79 55 90 32 13S 73 Poll 2 Poll 5 PoU6 Poll? Total 1,307 436 499 955 385 This recount was ordered to be made by James Crowell, parish judge of Iberville, on an application made to him by contestant in an oral ar- gument, as contestant says in his brief. It was had against the protest of the contestee's representative, and the judge gave his authority for so ordering the recount, section 123 Revised Statutes of the United States. Neither that section or any other law of the United States or of the State of Louisiana authorizes this recount. The recount was made by experts who were appointed by the judge. They agree as to the number of ballots then found in these five boxes for each party, but one of the experts testifies distinctly that the seals of some of the boxes were found broken, and that the tickets in the boxes (especially box from poll 2) did not have the appearance of hav- ing been handled and folded by the voters ; that the tickets having this appearance were all the black-back Republican ticket with Acklen's name on. See testimony of JoUey, page 246 : Q. Did you notice carefully the appearance of the tickets a? taken from those boxes \rlien the recount was made ? — A. Yes, sir. 180 DIGEST OF ELECTION CASES. Q. Will you please state the appearance of a portion of them or any of them ? Did they look like tickets that had been regularly voted ? — A. Some of them looked like — well, now, I will tell you how they looked. Some of them looked like they had been voted like an ordinary ticket and others looked like they had not been voted — that is, they did not have the appearance of having been doubled up like a voted ticket, Q. Were these tickets that had the appearance of not having been voted Eepublicaij tickets ? — A. Republican tickets. Q. Were they the black-back tickets ? — A. Yes, sir. Q. Did any of the Democratic tickets have that appearance ?— A. No, sir. Q. Were there more than one-third of Eepublican tickets in the box ? — A. Some boxes there was three colors. Q. Did any of the tickets have this appearance of not having been voted except the Tjlack-back tickets ?— A. No, sir. In some of the boxes when we had opened the box we would turn up the box, and in the back you would see tickets like ordinary tickets crossways, faces up, like they had been thrown in there. Then we would go on further and we would find on the back tickets with a crease right through the back where they had been folded. I don't know the exact number, but they were quite thick, because in taking them from the box I would reach over and take these tickets that was folded in the center by bunches. Q. Was it more than one ? — A. Fifteen or twenty. Well, they were put together, the tickets. The tickets were taken from the box, a number of them together, and the tickets were invariably the same kind, black-back Eepublican tickets. In count- ing the tickets I frequently called Mr. John H. Shanks's attention to it, showed them to him that they were in bulk when I took them from the box. They looked new. I also called Mr. Acklen's attention to it. Q. You say these tickets, folded in bunches longways and crosswise, coming out, were invariably the black-back Eepublican tickets? — A. Yes, sir.^ Q. There were none other folded inthat manner and had that appearance ? — A. No, sir ; not that I remember. Q. Whose name was on these tickets having that appearance, for Congress, or was -any name on them ? — A. Some had J. H. Acklen's ; some did not have anybody's on. Q. Was the Eepublican nominee's name on any of these tickets, to your recollec- tion ? — A. No, sir. I would like to state to that. I would take these tickets by the Jiack and tell what ticket they were without looking at the face. Poll 2 was the onlj- one where a string was used (p. 246) : '' Q. What boxes, by number, did you notice contained tickets which you state were folded in the peculiar way ? — A. I don't remember. There was one box. I can't tell you. I don't know the number. It was the box that had the string through the tickets. The tickets were on a string. Q. How were these tickets put on that string ? — A. They had a hole run through the ticket and the string through the hole. Q. Was that string tied or secured in any way ? — A. I cut it with a knife. And as to his protesting against the recount he testifies as follows (p. 177): And having been informed by said Acklen and Hon. James Crowell that they in- tended to proceed and take the evidence, and deponent, not knowing what to do, appeared before James Crowell, the judge taking said evidence, and objected, on be- half of said Darrall, to the taking of the evidence, on the ground that sufficient no- tice had not been given, and that the judge had no authority to recount the ballots ; that his objections were overruled by the judge, and that the ballot-boxes, some of which had every appearance of having been tampered with, were opened, and the ballots recounted. This evidence of one of the sworn experts appointed by the judge, and of the one who handled most of the tickets, is suflcient to invali- date the whole proceedings. It is seen, therefore, that in no way can the contestant be declared entitled to the seat except by giving him the votes of these five boxes, in accordance with the recount had four months after the election. It is then to be determined whether these five boxes shall be counted according to the offtcial count made at the polls or according to the re- count. We have no hesitation in deciding that the offlcial count of these five boxes is the only one that is entitled to be received. Could any evi- dence on a question in dispute be stronger than what has been' cited ACKLEN VS. DARRALL. 181 iu this case ? One thing seems to be certain, and conceded by the lieu- tenant-governor, who gave the contestant his certificate, and that is that Mr. Acklen is not entitled to have the votes cast at polls 1, 2, 6, 6, and 7 counted for him, because in making his certificate he makes no count of Iberville Paiish. There is no precedent for allowing a recount of this kind to overcome and set aside an official count regularly made in accordance with the forms of law, and this committee, it is presumed, does not intend to depart from all precedents and establish one so widely at variance with all decisions in similar cases heretofore made, and which would certainly be mischievous in its consequences. By no possibility can the contestant in this case be seated, unless it be determined to reject the decisions of both the Kellogg and Nicholls returning-boards, and to declare that the Democratic and Eepublican officers who held the election at these five polls in Iberville Parish were either notoriously ignorant or wickedly conspired to make a false return ; for no person who has any knowledge of the manner of conducting an election can for one moment believe that men of ordinary ability and honesty could preside at and count the votes of an election and not know that bogus and blank tickets were voted, particularly when these bogus tickets amounted to several hundreds, and were a majority of the votes cast. In conclusion, to sum up this case, we will take the vote of the bal- ance of the district, exclusive of Saint Martin's and IberviUe, just as the contestant claims it in his certificate issued to him by Lieutenant-Gov- ernor Wiltz, and which is certified to by the secretary of state as a cor- rect record of the votes of the various parishes named, and which is also the vote of those parishes as returned by the NichoUs returning- board. It is as follows : Asoensioii Assamption ... Terre Bonne- -. Stunt Mary Iberia La!Fayette Vermillion Calcasieu Cameron La Pourche — Saint Martin's . Iberville Names of parisbes. n 6 Votes. 2,059 1,692 1,966 2,385 1,455 661 228 9L 09 2,015 Votes. 1,215 1,679 1,393 1,423 1,242 1,157 955 1,291 225 2,086 12,631 I 12,666 To this vote we will add the vote of the parish of Saint Martin's, as it was returned by the l^icholls returning-board when they made the re- turn for members of Congress, as it is certified to by the clerk of the court of that parish in his certificate, placed in the record by the con- 182 DIGEST OP ELECTION CASES. testant, and as it was agreed it should be counted by the parties them- selves before this committee. That is — Dairall, as above table 12, 621 Add Saint Martin's 1,095 13,716 Acklen, as above table 12,666 Add Saint Martin's 1,028 13, 694 This, then, exclusive of IbervillQ, and taking the balance of the dis- trict just as claimed by the contestant, leaves Darrall a majority of 22 votes. To this vote of the district we think the law, the evidence, and the equities of the case demand there should be added the vote of Iber- ville Parish, according to official returns of the officers of election, ac- cording to the Kellogg return ing-board, and according to the Mcholls returniug-board ; they aU agree. We then have — Darrall, as above..., 13j716 Darrall (add Iberville) 2,070 15,786 Acklen, as above 13, 694 Acklen (add Iberville) 1,078 14,772 A majority for Darrall of 1, 014 This ignores the recount in Iberville entirely, and we think is just; but the vote of six out of the eleven polls in Iberville is uncontested. These are polls 3, 4, 8, 9, 10, and 11 ; to these we add poll 1, which the majority in their report admit should be counted according to the offi- cial returns. The vote of these seven uncontested polls is as follows : Darrall 941 Acklen 798 If this vote be added to the vote of the balance of the district, exclu- sive of Iberville, we have — Darrall (exclusive Iberville) 13, 716 Darrall (add 7 uncontested polls) 941 14, 657 Acklen (exclusive Iberville) 13,694 Acklen (add 7 uncontested polls) 798 14, 493 a majority for Darrall, according to contestant's own figures, in the un- contested part of the district, of 165 votes. But the majority having conceded that poll 1 shall be counted ac- cording to the official count because the seals of the boxes were broken, by which it is indicated that the boxes had been tampered with, the same must apply to poll 6, where the seals were also broken. If poll 1 is not to be taken according to the recount, none of these polls should be counted according to that recount, for all the boxes were kept in the same place ; and if the evidence is such that the security of the boxes is not sufficiently proven as to one of them, it clearly follows that it is not sufficient as to any of them. If the other four polls, Kos. 1, 2, 5, and 7, of Iberville Parish, are not ACKLEN VS. DAERALL. 183 counted according to the official returns and according to the returns of both of the returning-boards, then surely they will not be counted according to this recount made four months after the election. With the evidence given we think this cannot in justice and right be done. With the admission of the majority that poll 1 should be counted ac- cording to the official count and not the recount, and with an unbroken line of precedents that no recount has ever been allowed to overcome an official count in any contest for a seat in the House of Eepresenta- tives, we claim that the official count should stand, or that these four polls should be rejected and not counted for either party. In either event the right of the contestee to the seat is clear. In view, then, of the foregoing, we recommend the adoption of the fol- lowing : BesoVoed, That Chester B. Darrall was duly elected and is entitled to a seat in this House as a Eepresentative in the Forty-fifth Congress from the third Congressional district of the State of Louisiana. Resolved, That Joseph H. Acklen is not entitled to a seat in this House as a Eepresentative in the Forty-fifth Congress from the third Congres- sional district of the State of Louisiana. H. PEICE. Mr. Thornbuegh, on behalf of a minority of the Committee of Elections, submitted the following BEPOET: A minority of the Oommittee of Elections, to whom was referred the con- tested-election case of Joseph M. AcMen vs. Chester B, Darrall, from the third district of Louisiana, submit their views as follows : There have been two canvasses of the votes for this district. The first under the Packard government, which gave Darrall a majority of 2,093 votes, and again under the MohoUs government, which gave Dar- rall also a majority, but reduced to 1,094 votes. The canvass of the If ichoUs government is based upon a count of all the parishes and polls as returned ; hence we take this canvass as the best basis for the inves- tigation of the case. The only difference of opinion existing in the committee is limited to poU 'No. 17, La Fourche Parish, and six precincts in Iberville Parish. And it is admitted by the entire committee that all the remaining par- ishes and voting-precincts shall be counted as canvassed by the N"icholls returning-board. And first as to precinct l^To. 17, La Fourche Parish. It is shown by the evidence.of M. W. Billier (Eecord, p. 132) that the place for holding the election was changed from E. H. Allen's ware- house, where notice had been given the election would be held, to the negro quarters on the same plantation, which was about a mile distant from the warehouse. This change was made without legal authority, and without giving notice of the same. This change lost to Acklen some 15 to 18 votes, because, as the witness Ledet states it, the Demo- cratic voters were "disgusted" at the change and would not go to the negro quarters to vote. We quote his testimony on this question, from page 75 of the record : 184 DIGEST OP ELECTION CASES. Q. What number of votes were lost to J. H. Acklen by the failure to place poll No. 17 where it was ordered to be held, at the Allea warehouse, and which was really held back in some negro quarters about three miles from the road ? — ^A. Well, th» commissioner at that poll had instructions to hold the election on the road-side at the Warehouse, and he disobeyed orders and went back there. He told me himself after- ward that there were about fifteen or eighteen Democrats that would not vote on account of the poll being there, because Mr. E. H. Allen, who was the owner of the place, protested against holding the election there and disgusted those men from vot- ing there. That information I hold from the commissioner himself. I know myself that on that place there were at least fifteen or eighteen white men working there nearly all the year rouiid. Darrall received 86 votes at this precinct, all the votes that were polled. By the evidence, Acklen would have received 15 to 18 votes if the election had been held at the warehouse. This would have left Darrall more than 60 majority at this precinct. But, as the change oi place of voting was without legal authority, and done, perhaps, to seek an advantage for Darrall and others on the Eepablican ticket, we agree with the majority to throw out this entire poll, thereby depriving Dar- rall of 86 votes, when a full vote would have left him more than 60 majority ; and we deduct from Darrall's majority 86 votes. This leaves us the parish of Iberville. It is agreed by the committee, both the majority and minority, that polls Nos. 1, 8, 9, 10, and 11 shall stand as counted by the Nicholls re- turning-board. These polls gave Darrall 677 These polls gave Acklen 430 This narrows the discussion to polls ]!fos. 2, 3, 4, 5, 6, and 7. The testimony is quoted in the majority report, and also in the rex)ort sub- mitted by Mr. Price, of the committee, and is therefore not rejjeated here. It establishes, we think, the following facts in regard to each and all of these last-named polls : That Wharton, a Eepublican candidate for the State senate, and others, conspired to defeat Darrall by the use of spurious Eepublican tickets, intending to procure such of his friends as he could control to vote and distribute on election-day these spurious tickets, and to pro- cure thereby other Eepublican voters to vote said spurious tickets with- out their knowledge. And here we will describe this ticket as shown by the evidence. It is headed, " Eepublican ticket, Iberville Parish.'^ Then follow the names of 48 persons, with the ofi&ces for which they were candidates, giving in each case the name of the Eepublican candidate for that office (see Eecord, pp. 72 and 73). This ticket was about nine inches long, and to distinguish it from other tickets was printed on paper with a glazed back, and nearly black in color. The spurious tickets were exactly like thos^e just described, except that Acklen's name was inserted for Darrall's, or the whole line, " For member of Congress, third district, Chester B. Darrall," left out, making it a blank as to member of Congress. The contestant claims that these spuri5us tickets were voted at these polls. In other words, that this trick and fraud was successful, and that the ofiflcers of election, not knowing such tickets were being voted, did not sufficiently scrutinize the tickets to detect the fact that they were not what they purported to be, to wit, straight Eepublican tickets, and that they so counted them, giving Darrall the benefit of all the spurious tickets. We think that the question whether or not the tickets were sufficiently scrutinized to detect this fraud, if it was successfully consummated, by the ofiicersof tboelecliou wbeii thoy made the official count is coiiflictii)y ward shall file with the city clerk a stateimut in writing that they have reason to believe that the returns of the ward oificers are erroneous, speci- fying wherein they deeui them in error, said city clerk shall forthwith transmit such statement to the board of aldermen or the committee thereof appointed to examine the returns of said election. The board of aldermen, or their committee, shall there- upon, and within five days, Sunday excepted, next following the day of election, open the envelope and examine the ballots thrown in said w ard, and determine the questions raised ; they shall then again seal the envelope, either with the seal of the city or a seal provided for the purpose, aajl shall indorse upon said envelope a certificate that the same has been opened and again sealed by them in conformity to law ; and the en- velope, sealed as aforesaid, shall be returned to the city clerk. Said city clerk, upon ■the certificate of the board of aldermen or their committee, shall alter and amend such ward returns as have been proveil to be erroneous, and such amended returns shall stand as the true returns of the ward. Sec. 5. The board of aldermen shall not declare the result of an election until the time specified in the preceding sectiou for filing a request for a recount of ballots shall liave expired, or in case of such request having been made, until the said ballots have been examined and the returus amended, if found erroneous, any provision in the charter of any city or in any act iu amendment thereof to the contrary notwithstanding. DEAN VS. FIELD. 215 That is, when the board of aldermen shall be informed by ten or more ■qualified voters of any ward that there is reason to believe that the ward returns are erroneous, it shall be the duty of the board of alder- men or the committee thereof to examine the ballots thrown in the ward, and if the return is found to be erroneous 'to cause it to be altered and amended, and the returns thus amended are to stand as the true returns ■of the ward. The facts in this case are that in the several wards comprising the district elections were held for a Representative in Congress in the man- ner provided by the laws of the commonwealth herein substantially set forth. Walbridge A. Field, the candidate of the Eepublican party, and Benjamin Dean, the candidate of the Democratic party, both residents ■of the district, were the i)ersons for whom nearly all the votes were cast. In the several wards comprising the district after the sorting, counting, and declaration of the votes,. returns were made to the city clerk of the result, together with the check-lists and ballots, in the manner pre- scribed by law. The following tabulated statement from these returns ^ives the results of the elections as held in the several wards : 16 Ward returns. 21 24 13 14 1,076 939 15 855 753 17 18 19 1,126 614 1 1 20 Totals. 1,495 219 896 621 802 1,131 579 1,410 25 1,038 897 547 1,331 895 1,361 9,308 9,276 "Walbiidge A. Field "Walbridee A. Field (4th dist, ) . 25 A. Field . I t " s ■) 1 1 Field 1 Samuel D Smith 1 .... 1 At each of the ward meetings in the ten wards in this district were present two supervisors of election appointed by the judge of the circuit court of the United States for the circuit wherein is situated said elec- tion district, in the manner provided for by section 2011 of the United States Revised Statutes, and performed all the acts required by law to be done by them at places for holding elections of Representatives in Con- gress. These supervisors made and reported to the chief supervisor of elections for this district of Massachusetts returns of the votes cast for Representative in Congress. From these returns it appears that Ben- jamin Dean received 9,308 votes, Walbridge A. Field 9,276 votes, and that there were 25 additional votes cast in ward 18 for Walbridge A. Field, of fourth district, not counted. These returns differed from the returns of the ward officers in not giving the scattering votes for A. Field, Field, and Samuel D. Smith, and giving Benjamin Dean, in the fourteenth ward, one vote less, and in the sixteenth ward one vote more than shown by the returns of those two wards. It appears from the evidence that in wards 13, 15, 17, and 19 there was no scrutiny and counting of all the ballots cast, by each of the su- pervisors. In the remaining six wards it appears from the evidence that the supervisors personally scrutinized, canvassed, and counted all the ballots cast for Representative to Congress. It does not appear from the returns made by the surpervisors that the votes cast in the several wards were by them counted, except in one ward, the 18th, and only in that ward does it appear when and how the counts of the super- visors were made. In that ward the ballots were first counted by the ward officers, and then by them were handed to the supervisors, who 216 DIGEST OP ELECTION CASES. separately and carefully counted them with the same result as that of" the ward ofBicers. Within three days next following the day of this election, statements in writing by ten or more qualified voters of each of the wards of the district were made out and filed with the city clerk. These statements were the same in each ward, and were drawn up at the oflSce of the chairman of the returned member's district committee, and were by himn sent out for signatures. They were in form as follows : To the dly clerk of the city of Boston : The undersigned, qualified voters of ward 13, in the third Congressional district, hereby state that they have reason to believe that the returns of the ward officers of said ward for member of Congress in said Congressional district at the election of November 7, 1876, are erroneous in that all the ballots cast for Walbridge A.,Field as- member of Congress were not counted and credited to him, and that more ballots were credited to Benjamin Dean as a member of Congress than were cast for him ; and they ask for a recount of the vote of said ward for member of Congress, in accordance- with the provisions of section 4 of chapter 188 of the acts of the year 187G. These ward statements having been transmitted to the board of alder- men, as required by law, a committee of the board of aldermen, ap- pointed by the mayor on the day preceding the election, opened the en- velopes containing the ballots thrown in each ward, and counted said ballots with the result shown in the following table : Official cotmt. 13 14 15 16 17 18 19 20 21 24 Totals. JBesiamin Dean 1,497 225 1,100 950 855 751 889 625 803 1,131 573 1,413 25 1,125 614 1,035 891 545 1,333 893 1,362 9, 315- Walbridge A. Field Walbridge A. Meld (4th dist.) Wm. A. Pield 9,295 25 1 1 Field 3 » 1 2 1 Kuftis S. Frost 1 3 1 1 This result having been reported to the board of aldermen by its- committee and accepted by the board, the city clerk altered and amended the ward returns in accordance therewith, and entered the same with the resolution of the board in the city records, as follows : City of Boston. Secord of returns of votes given in the several wards November 7, 1876, for members of the Forty-fifth Congress. [District No. Three, as amended.] Wards. Totals. 13 14 15 16 17 18 19 20 21 24 Walbridge A. Field 225 1,497 950 1,100- 751 85S 625 889 1 1,131 803 1,438 573 614 1,125 891 1,035 1,333 545 1,362 893 9,32ft, 9,316 I Wm. A. Field Field 3 1 2 Kuliis S. Frost 1 3 Francis M. Weld 1 1 DEAN VS. FIELD. 217 _ Besolved, That in the opinion of this hoard the twenty-five ballots cast in the- eighteenth ward of this city, on the seventh instant, for Walbridge A. Field, of Boston, for member of Congress from the fourth district, were intended for Walbridge A. Field, of Boston, who was nominated and voted for as a member of Congress for tha third district. It is therefore Ordered, That in the certificate to be sent to the secretary of the commonwealth th& nnraherof ballots for Mr. Field be returned as follows: Walbridge A. Field, of Boston, had ninety-three hundred and twenty ; twenty-five of which were headed Ward XVIII, and read as follows : " For Representative to Congress, fourth district, Walbridge A. Field, of Boston." Passed. S. F. McCLEAEY, City Clerk. In Boakd of Aldermen, Novemher 15, 1877. Within ten days from the day of the election, as prescribed by the statute, the city cleris transmitted copies of the records of the votes cast for members of Congress, as declared by the board of aldermen, to- the secretary of the commonwealth, by whom they were duly transmit- ted to the governor and council. Prom this return it appeared that Walbridge A. Field had the highest number of votes cast in the election,, and was chosen RepreseDtative in Congress from said district, and a certificate by the governor was issued accordingly. Within the time prescribed by the statutes of the United States notice of contest was- eerved by Mr. Dean upon Mr. Field. The questions made by the notice of contest and the answer of the returned member and the evidence taken relate to the validity of the several counts, and do not go to the truth of the case further than as shown by the counts themselves. In the eighteenth ward of the city twenty-five ballots were cast desig- nating the Congressional office and candidate thus: "For Representative to Congress, fourth district, Walbridge A. Field, of Boston." These twenty-five ballots were counted for Mr. Field as Representative to Con- gress from the third district both by the ward offlcers and the board of aldernien, and are necessary to the election of Mr. Field. The con- testant avers that these votes were improperly and illegally counted for Field. They were legally counted if they clearly indicate the office for which the person is designed, and the intention of the voter as to that person can be ascertained from the ballot. Evidence may not be re- eeived to contradict the ballot nor to give it a meaning when it ex- presses no meaning of itself; but if it be of doubtful import, the circum- stances surrounding the election may be given in evidence -to explain it and get at the intent of the voter. (McCrary's Law of Elections^ p. 299.) The office to be filled was Representative iu Congress. The words "fourth district" constitute no part of the designation of that office. The way it happened that the words "fourth district" had been printed upon these ballots was explained by the person printing them, that he had neglected to take from his printing-press the type contain- ing these words, which had been used for printing ballots for Repre- sentative in Congress in the adjoining fourth district. Walbridge A.^ Field was the candidate for Congress in the third district ; he resided in that district. There was no other Walbridge A. Field residing in that district or in the city of Boston ; the ballots were cast in the eighteenth ward and third district, and by law could only be cast by persons re- siding in that ward and district. Clearly, then, from these ballots and the evidence showing by whom they were cast, and the circumstances under which cast, it appears that they were cast for Walbridge A. Field,, one of the candidates for Congress in the third district for Representa- tive in Congress from that district. The words "fourth district" not rendering uncertain the office intended to be designated or the persom 218 DIGEST OF EtECTION CASES. "v^oted for,, we think that these twenty-five votes were legally counted for Field as Rei)resentative to Congress from the said third district. The question left in this case, and the decision of which determines ■which of the parties to this contest is the duly chosen Representative from the third district of Massachusetts in the Forty-fifth Congress, is, which of the several counts made is the true count of the law? The Constitution of the United States provides that "the time, places, and manner of holding elections for Senators and Representatives 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 jtlace of choosing Senators." (Sec. 4, 1st art.. Const. U. S.) Under this mandate of the Constitution there is prescribed in the State of Massa- -chusetts, by the legislature thereof, a complete system of laws as to the places and manner of holding elections for Representatives in Congress and for ascertaining the result of these elections. That system is not complete in the holding of the elections in the wards of the cities com- prising the districts and in the separate declaration of the votes in the wards. Without the examination of the returns from the wards by the alder- men there can be no determination as to the result of the elections held in the several wards comprising the district. The board of alder- men is the only body that at any time is possessed of all the means necessary to ascertain who has been chosen a Representative in Con- gress for the district. It is the duty of the mayor and aldermen and the clert to examine the returns made by the returning officers of the several wards, and to •compel the correction of any errors which' may be discovered by them, and make recorfl of the corrected returns. The ballots, voting-lists, and records remain in their possession. "In counting (by the mayor, aldermen, and clerk) all the votes cast in an election, wo returns of these votes from the wards shall be rejected when the votes given for each candidate can he ascertained." It is from the records of this board, attested and certified by them, that, the gov- ernor is informed of the result of the election, and issues his summons to the person that appears from the records to have been chosen. (Sec. 15, 16, 17, and 22, Gen. Stats. Mass., chap. 7 ; Record, pp. 209, 210, and 211.) More distinctly is it provided under the act of the legislature ap- proved April 26, 1876, hereinbefore set forth, that whenever statements in writing b.y ten or more qualified voters of any ward, statihg that they have reason to believe, that the returns of the ward ofiicers are erro- neous, specifying. wherein they deem them in error, are filed with the city clerk, there shall be an examination of the ballots thrown in that ward, and a determination by the board of the questions raised. There can be no declaration of the result of an election by the board of aldermen until the expiration of the time for filing these requests for a recount of the ballots, or in case of such request there has been an examination of the ballots and an amendment of the returns, if erroneous. These "amended returns," the result of the recount by the aldermen, are to stand as the true returns of the ward. It is insisted that the •count made in this case by the aldermen was unthorized by law, the statements in writing filed with the clerk being insufficient under the -statute. The purpose of the statute clearly was to compel an examination and ■count of the ballots cast in any ward whenever ten or more qualified voters should say to them in writing that they had reason to believe DEAN VS. FIELD. 219 tbat the w'ard returns were erroneous, and specify wherein they deemed them in error. Statements from every ward of the district in writing, signed by ten or more qnalitted voters from the wards respectively, saying they had reason to believe that the returns of the ward officers were erroneous, specifying " that all the ballots cast for Walbridge A. Field, as member of Congress, had not been counted and credited to him, and that more ballots were credited to Benjamin Dean as member of Congress than were cast for him," had been filed with the city clerk. The complaint to be made is not as to the manner in which the election by the ward ofdcers has been conducted ; it does not go to any wrongful act of these oiflciers, but is directed specifically to the ascertained result, the returns made by these officers. The object to be accomplished is to have an examination and count of the ballots by the board of aldermen. The complaint can only be as to the result of the count of the ballots by the ward officers. This specification of error is to be by persons who were in no way connected with the count of the ballots ; by persons who cast the ballots and who have reason to believe that there has been error in their count. Statements by such persons could hardly be more specific than those filed in this case, " that all the ballots cast for Walbridge A. Field had not been counted and credited to him, and that more ballots had been credited to Benjamin Dean than were cast for him." It is the opinion of your committee that these statetnents were suffi- cient in law to authorize the examination and count of the ballots cast in the several wards by the board of aldermen. The law of Massachusetts in terms declares that the returns as amended by the board of aldermen, the count of the ballots by them, shall " stand as the true returns of the ward." This count is the final, the ascertained, result of an election held in the manner prescribed by the legislature of the State for holding elections for Representatives in Congress, and must stand as showing the choice of the people of that tlistrict for that Eepresentative, unless it be shown to the House of Eepresentatives, judging of the election of one of its members, not to be true by evidence other than the ward counts, which are by this count reviewed and corrected. Notwithstanding it appears from the evidence of the ward officers themselves and others who witnessed the manner of holding the elec- tion by the ward officers, and the counting by them of the ballots, that their counts were carefully made — and they have no reason to be- lieve that they were not correctly made — they are insufficient to show that the subsequent count is untrue, and are incompetent to that pur- pose ; for, by law, the count by the aldermen is one in review and in correction; of these counts, and instead of them is to stand as the true return of the election. That rule of law that would allow this would be like unto one which would hold the reversed judgment of an inferior court evidence sufficient to show the reversing judgment of the superior court to be erroneous. To state the proposition is to show its iinsonndness. Supervisors of elections for each of the wards in said district were appointed by the judge of the circuit court of the United States for the circuit in which said district was situated. These supervisors were pres- ent lat the several ward meetings at which this election was held, and afterward certified and made returns of the votes received by the two candidates to the chief supervisor. According to these several returns Benjamin Dean received 9,308 220 DIGEST OF ELECTION CASES. votes,WalbridgeA. Field received 9,276 votes, and there were "twenty- five additional votes cast for Walbridge A. Field, of fourth district, not counted." Sections 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018, and 2019 of the Eevised Statutes, which were enacted as amendments to an act approved May 31, 1870, entitled "An act to enforce the rights of citi- eens of the United States to vote in the several States of this Union, and for other purposes," are the provisions of law under which supervisor* of elections are appointed and their duties prescribed. These sections are as follows : Sec. 2011. Whenever, in any city or town having upward of twenty thousand in- habitants, there are two citizens thereof, or whenever, in any county or parish, in any Congressional district, there are ten citizens thereof, of good standing, who, prior to any registration of voters for an election for Representative or Delegate in the Con- gress of the United States, or prior to any election at which a Representative or Delegate in Congress is to he voted for, may make known, in writing, to the judge ot the circuit conrt of ^the United St.ates fcir the circuit whereinsuchcity or town, county or parish, is situated, their desire to have such registration, or such election, or hoth, guarded and scrutinized, the judge, within not less than ten days prior to the regis- tration, if one there be, or, if no registration be required, within not lesstlian tendays^ prior to the election, shall open the circuit court at the most convenient point in the eirouit. Sec. 2012. The court, when so opened by the judge, shall proceed to appoint and eommission, from day to day and from time to time, and under the hand of the judge,, and under the seal of the court, for each election district or voting precinct in such eity or town, or for such election district or voting precinct in the Congressional district, as may have applied in the manner hereinbefore prescribed, and to revoke, ehange, or renew such appointment from time to time, two citizens, residents of the- city or town, or of the election district or voting precinct in the county or parish, who shall be of different political parties, and able to read and write the English language, and who shall be known and designated as supervisors of election. (See §J 5521, 5522.) Sec. 2013, The circuit court, when opened by the judge as required in the two pre- eeding sections, shall therefrom and thereafter, and up to and including the day fol- lowing the day of election, be always open for the transaction of business underthis. title, and the powers and jurisdiction hereby granted and conferred shall be exercised as well in vacation as in term time ; and a judge sitting at chambers shall have the- same powers and jurisdiction, including the power of keeping order and of punishing: any contempt of his authority, as when sitting in court. Sbc. 2014. Whenever, from any cause, the judge of the circuit court in any judicial circuit is unable to perform and discharge the duties herein imposed, he is required to select and assign to the performance thereof, in his place, such one of the j udges of the district courts within his circuit as he may deem best; and upon such selection and assignment being made, the district judge so di'signated shall perform and discharge,. in the place of the circuit judge, all the duties, powers, and obligations imposed and •onferred upon the circuit judge by the provisions hereof. Skc. 2015. The preceding section shall be construed to authorize each of the jndgeii> of the circuit courts of the United States to designate one or more of the judges of the- Aistrict courts within his circuit to discharge the duties arising under this title. Sec. 2016. The supervisors of elections so appointed are authorized and required t» attend at all times and places fixed for the registration of voters who, being regis- tered, would be entitled to vole for a Representative or Delegate in Congress, and to ehallenge any person offering to register ; to attend at all times and places when the- names of registered voters may be marked for challenge, and to cause such names reg- istered as. they may deem proper to be so marked ; to make, when required, the lists,. or either of them, provided for in section two thousand and twenty-six, and verify the same; and upon any occasion, and at any time when in attendance upon the duty herein prescribed, to personally inspect and scrutinize such registry, and, forpurposes of identification, to aflSx their signature to each page of the original list, and of each eopy of any such list of registered vpters, at such times, upon each day when any name may be received, entered, or registered, and in such manner as will, in their judg- ment, detect and expose the improper or wrongful removal thereform, or addition thereto, of any name. Sec. 2017. The supervisors of election are authorized and required to attend at all times and places for holding elections of Representatives orDelegates in Congress, and for counting the votes cast at such elections ; to challenge any vote offered by any person whose legal qualifications the supervisors, or either of them, may doubt; tobtt DEAN VS. FIELD. 221 and remain where the ballot-boxes are kept at all times after the polls are open until every vote past at such time and place has been counted, the canvass of all votes polled ■\vholly completed, and tlie proper and requisite certificates or returns made, whetller the certificates or returns be required under any law of the United States, or any State, Territorial, or municipal law, and to personally inspect and scrutioize, from time to time, and at all times, on the day of election, the maniier in which the voting is done , and the way and method in which the poll-books, registry-lists, and tallies or check- books, whether the same are required by auy law of the Ilnited States, or any State, Territorial, or municipal law, are kept. Sec. 2018. To the end that each candidate for theofifice of Representative or Delegate in Congress may obtain the benefit of every vote for him cast, the supervisors of elec- tion are, and each of them is, required to personally scrutinize, count, and canvaas «ach ballot in their election district or voting precinct cast, whatever may be the in- dorsement 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 two thousand and twenty -five, has been designated as the chief supervisor of the judicial district in which the city or towu wherein they may serve, acts, such certificates and returns of all such ballots ae 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 re- turn, whether the same, or any part or portion thereof, be required by any law of the United States, or of any State, Territorial, or municipal law, auy statement touching the truth or accuracy of the registry, or the truth or fairness of the election and can- vass, 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. Sec. 2019. The better to enable the supervisors of election to discharge their duties, they are authorized and directed, in their respective electiou districts or voting pre- cincts, on the day of registration, on the day when registered voters may be marked, to be challenged, and on the day of election, to take, occupy, and remain in such posi- tion, from time to time, whether before or behind the ballot-boxes, as will, in their . judgment, best enable them to see each person offering himself for registration or offering to vote, and as will best conduce to their scrutinizing the manner in which the registration or voting is being conducted ; and at the closing of the polls for the reception of votes, they are required to place themselves in such position, in relation to the ballot-boxes, for the purpose of engaging in the work of canvassing the ballots, -as will enable them to fully perform the duties in respect to such canvass provided herein, and shall there remain until every duty in respect to such canvass, jjertificates, returns, and statements has been wholly completed. These provisions of law were not enacted by Congress in pursuance of its constitutional power to " make or alter " regulations as to the man- ner of holding elections for Representatives in Congress. They are not certainly to operate even to the supervision of an elec- tion for a single polling place in a city or county which may constitute only a part of an election district, but shall only operate when a certain number of citizens shall make known in writing to a United States judge their desire to have the election " guarded and scrutinized.^' The manner of holding such an election is in no way regulated. These ofiflcers are designated as " supervisors of elections." They are appointed by the judges of the Federal courts as instruments in the process of " enforcing the rights of citizens of the United States to vote in the several States; " not managers of an election, but guardians and scrutinizers of an election managed by others, oflcers of the States. They are to attend at all times and places for holding elections for Representatives in Congress, and for counting the votes at such elec- tions in order that they may challenge votes and inspect and scrutinize the manner in which the voting is done, but they are not to receive or decide upon the legality of any vote, or regulate the manner in which the voting is done. On the day of election and at the places of holding the election they are to take, occupy, and remain in such position as will best enable them to see each person voting, scrutinize the manner in which the voting is being conducted, and at the closing of the polls they are to put themselves in such a position in relation to the ballot- boxes, for the purpose of engaging in the work of canvassing the bal- 222 DIGEST OP ELECTION CASES. lots, as will enable tliem to fully perform their duties in respect to such canvass herein provided, but they are not to be in position enabling- them to receive a vote, conduct an election, or control a ballot-box. Each of these supervisors is required ^^ personally to scrutinize, count, and canvass each ballot in their election district cast; " not as a board of election managers, to ascertain the number of ballots cast and for whom cast, and as such board to make returns thereof to the State officer who shall certify that result, or the House of Eepresentatives, who shalljudge of that return ; buteach onepersonally is to scrutiuize, count, and canvass each ballot cast in his voting precinct, and make " such certificate and re- turn of all such ballots " as may be directed and required by the chief supervisor from whom he received his appointment. They make re- turns only of what they have seen in the management of the election, to the chief supervisor appointed by the judge of the circuit, " in order that the facts may become known." " Become known " through these supers visors, these witnesses for the courts having jurisdiction of the offenses, created in these acts, enacted to " enforce the rights of citizens of the United States to vote in the several States of the Union, and for other purposes." Further than the returns made, which do not in terms show a count made by these supervisors, except as to the returns from the eighteenth ward, the evidence does not show that the supervisors counted the votes in the wards comprising the .election district. So that, in the determi- nation of the value of those returns as evidence in this case, their only value is in their official character. The undersigned, believing that they are not counts made and results ascertained in. pursuance of any law made " to regulate the manner of holding elections for Eepresentatives in Congress," hold that they are insufficient to set aside the result found in this case according to the law of the State of Massachusetts, the certified return of the board of aldermen. It is averred by the contestant that the count by the aldermen, upon which rests the right of the returned member to his seat, was made by three members of the board of aldermen in private and not in the pres- ence of the public; that it was made without notification to the contest- ant, or the supervisors of election, appointed in pursuance of the United States statutes, and that these supervisors were not permitted to be, and were not in fact, present at the recount of the ballots by the aldermen, and, as inference -from these facts, it is averred that the count of the aldermen did not show the true number of votes cast for the parties to this contest. It is not insisted that because of these facts the count of the aldermen is void, but that they so discredit the count that it may not be set up as the true return of the election as against the counts made in the wards. The evidence shows that no notice of the examina- tion and count of the ballots by the aldermen was given to the super- visors of the election or to either of the parties to the contest, and that ' none of these parties were present. The committee who made the count was appointed for this purpose by public action of the board of alder- men on the day immediately preceding that of the election, and it was appointed in xjursuance of a public statute of the State. There is no evidence that there was any exclusion of any person, su- pervisor or candidate, from the count. The count was made by the committee in one of the rooms of the city hall, and with the aid of the assistant city clerk and the clerk and assistant clerk of committees of the board of aldermen. At times during the count the city clerk and city attorney were present. The door of the room in which the count DEAN VS. FIELD. 223^ was made was not kept locked. The count required the larger part of two days, and both parties knew it was to be made. The count was made during the time, at the place, and in the manner required by law. There is no law requiring the presence of any person other than the committee, unless it be found in that regulating the duties of the siipervisors of election. The sole object of the act of Congress, of which the sections of the Revised Statutes hereinbefore set forth are a part, was to enforce " the right of the citizen to vote and to secure that vote to the candidate for whom intended." To that end it is provided that these supervisors shall attend at th&places for holding the elections for Representatives, and counting the votes cast at such election, and to remain where the bgil- lot-boxes are kept at all times after the polls are open until every vote cast at such time has been counted and the canvass completed. Evi- dently this only required the supervisors to be at the place where the election is held, in the precinct or polling-place for which they are ap- pointed, and not at the place where the returns from all the precinct* are carried for examination, recount, and consolidation. At this place there is no vote which may be challenged, no ballot-box opened for the reception of votes ; there is notliing which may be don© by the supervisors appointed for a precinct to " guard and scrutinize " the election there held. There being, then, no violation of law in the manner of the count by the committee of aldermen, and none requiring the presence at or the participation in this count by the twenty supervisors appointed, two each for the several precincts or polling-places in the district, we think that count is in no degree discredited. We therefore find that the result of the election in the third Congres- sional district of the State of Massachusetts for a Eepresentative to the Forty-fifth Congress, ascertained in the manner prescribed by the laws of that State, is that Walbridge A. Field received 9,320 votes and Ben- jamin Dean received 9,315 votes ; and that the former, having received the highest number of votes, is duly elected. We recommend the adoption of the following resolutions as a substi- tute for the resolutions reported by the majority of the committee: Resolved, That Walbridge A. Field is entitled to a seat in this House as a Eepresentative in the Forty-fifth Congress from the third district of Massachusetts. Resolved, That Benjamin Dean is not entitled to a seat in this House as a Eepresentative in the Forty-fifth Congress from the third Congres- sional district of Massachusetts. MILTON A. CANDLER. ' FEANK HISCOCK. J. M, THOENBUEGH. JNO. T. WAIT. H. PEICF. 224 DIGEST OF ELECTION CASES, JOHlSr S. KICHARDSON VS. JOSEPH H. RAINEY. First CoNGftEssioNAL District of South Carolina. Charges of intimidation, violence, and military interference and of irregularities and informalities at the polls. Held, That violations of the election laws that are purely directory in their character^ if no fraud l3e shown to have resulted therefrom, cannot vitiate an election. It is wholly diifereut when mandatory provisions are violated. In the latter case the election is void. It need not be that there is, at the time of voting, the presence of force or the pres- ent fear of actual bodily hurt; but the fear of harm, of social ostracism, of relig- ious wrath if brought to bear upon the body of voters, or if exercised to any great extent, and if so general as to affect the result, and the general result cannot be ascertained from the returns, the election is void. The sending of United States troops into South Carolina in October, 1876, the uses made of their presence produced a marked and controlling effect upon the election, sufficient to justify declaring void the election of November 7. Jl minority can only elect where the majority with full opportunity to vote as they chose, unrestrained by undue influences, refrained through apathy or neglect from voting. But when undue influences have been brought to bear upon the mass of voters, and they have voted subject to these influences, although the full extent of these influences cannot be arrived at, the entire election should be voided, al- though a minority may have voted free &om such influences. This report was recommitted to the Committee on Elections May 18, 1878. May 18, 1878. — Mr. Ellis, from the Committee on Elections, submitted the following BEPOBT: The first Congressional district of South Carolina is composed of «ight counties — Sumter, Darlington, Williamsburg, Georgetown, Horry, Marion, Marlborough, and Chesterfield. At the general election held in that district on the 7th of November, 1876, John S. Richardson and Joseph H. Rainey were voted for to rep- resent said district in the Forty-fifth Congress. According to the returns, as filed in the ofiBce of the secretary of state, the note was as follows : Countiea. Eainey. Bichardson. . In Darlin^^ton County . . - In Sumter County In WilliamBburg; County In Georgetown County . - In Chesterfield County . . In Marlborough County . In Marlon County In Horry County Total 3,514 3,849 2,371 2,684 981 1,609 2,502 593 18, 103 2,747 2,38* 1,602 1,162 1,622 1.941 3,140 1,922 16, 57B RICHARDSON VS. RAINEY. 225 Or a majority for contestee of 1,528 in the entire district. Upon this return a certiflcate of election was issued to him, and he was sworn in and occupies the seat in Congress from the first South Carolina dis- trict. Within the legal time the contestant filed his protest and noftce of contest, claiming that certain counties of said district should be rejected from the count for intimidation, violence, and military interference with the said election, and that certain polls in said counties should be re- jected for various informalities, which are fully set foith in his notice of contest. Without burdening this report with the notice of contest,, which is found on pages 1-11 of the report, the grounds upon which contestant bases his contest are substantially as follows : 1st. That the Government of the United States without cause, other than to influence the result of the election in the interest of contestee and the Eepublican party, sent troops to many polling places in four counties of the first district, and that the effect of the presence of said armed forces of the United States was such as to greatly influence, if not to change, by intimidation, the result in said counties'. 2d. That the presence at the polls and the attendance at political meetings during the canvass of colored militia armed and organized, and the general arming of colored clubs and their thrt^ats against colored Democrats, created such alarm and intimidation as to materially affect the result of said election, and not wholly to change it. 3d. That the iijtimidation and threats of social and religious ostra- cism and persecution made by colored Eepublican social and religious organizations materially affected and changed the result of the election in said counties. 4th. Contestant urges the following grounds of objection to the count- ing of certain polls in certain counties, as follows : In Darlington County, as follows : Ist. In that the managers of election appoiijted for the various precincts established in said county did not comply with a condition precedent to their action as such managers, inasmuch as no oath taken and subscribed by any of them was filed in the office of secretary of state, as required by law, there being at the time no clerk of said county duly qualified with whom said oaths could be filed. 2d. In that Federal officers (deputy marshals and others), intense Republican par- tisans, made use of the presence of troops in said county to intimidate electors, whereby at every poll iu said county large numbers were overawed — some kept from the polls altogether, and others forced to vote the Repu blican ticket against their will. 3d. In that the State militia and other armed Republicans collected large numbers of State and private arms at and near the points at which polls were opened at the precincts established at Darlington Court-House, Society Hill, and Florence. The collection of arms at the polls, as stated in this specification, was with the knowl- edge and (in one instance at least) upon the suggestion of deputy marshals of the United States of America, all Republicans. 1. That at Manchester preciuct the ballots oast were not counted according to law. 1. That at Concord precinct one William J. Andrews, who was candidate upon the Republican ticket, and is returned as elected to a seat in said assembly, was and acted as one of the United States supervisors of election. 1. That at Wedgefield precinct one Mansfield McLaurin, who was appointed and acted as clerk of ttie board of managers,' did not take the oath of office prescribed by law as a condition precedent to be taken by said clerk, and that a poll-list was not kept at said precinct according to law. 1. That the poll at Johnston's Store precinct was not opened at the hour designated by law nor for fifty minutes thereafter. 2. That Hampton Cain, who was appointed and acted as clerk of the board of man- agers at this precinct, did not take the oath of office prescribed bylaw as a condition precedent to be taken by such clerk. 3. That a poll-list was not kept at this poll according to law. H. Mis. 58 16 226 DIGEST OF ELECTION OASES. 4. That the ballots cast at this precinct were not counted according to law, but only the number of tickets were counted, and no account or tally-list of the ballots cast for any person or persons voted for was kept by either manager, supervisor, or clerk of the managers at said Johnston's Store precinct. 5. That the managers of this precinct did not proceed immediately at the close of the election to count the ballots cast, but did there, contrary to law, adjourn their board for some time, to wit, twenty minutes, before proceeding to count said votes. i. That at Privateer precinct the managers did nofc open the poll at the hour fixed by law for opening the same nor for one hour and a half thereafter. 2. That the person who acted aS clerk at this precinct did not take the oath of office prescribed bylaw for such clerk to take, and that no ppU-list was kept according to law. 3. The managers of election at said Privateer precinct failed to administer to each and every person who voted thereat the oath required as condition precedent bylaw to be administered do each person offering to vote at said election nor was such oath taken by any person who voted at said precinct ; and that a large number of persons, to wit, two hundred and fifty-two, were then allowed to vote, and did vote without taking such oath. 1. That at Stateburgh precinct, one George Patterson, who acted as clerk of the board of managers of such poll, did not take the oath of office prescribed as a condition precedent by law to be taken by such clerk, and that a poll-list was not kept at such poll according to law. 1. That at Carter's Crossing precinct H. G. Shaw, who was not a manager, acted as clerk of the board of managers without taking the oath of office prescribed as a condition precedent by law to be taken by such elerk, and that the poll-list kept at said poll was kept by him, and was not, therefore, such poll-list as was required by la'vy^. That the board of county canvassers of said county did, contrary to law,, open many of the boxes containing the ballots cast after said boxes had been sealed by the man- ager ; that is to say, the boxes of the following precincts, to wit : Sumter No. 1, Pri- vateer, Stateburgh, Providence, Rafting Creek, Spring Hill, BishopvillejXymshbnTghy Shiloh, Mayesville, Johnston's Store, and Swimming Pens ; and that ballots deposited in some of said boxes, to wit, those of Rafting Creek, Stateburgh, and Privateer, Were counted by said canvassers after opening said boxes as aforesaid. That United States troops were stationed, immediately before and during such elec- tion, in said county of Sumter, to wit, at Sumter Court- House, and did intimidate, overawe, and force many persons to vote the Republican ticket and for the said Rainey, and prevent many other persons from voting for this contestant who would otherwise have voted for him. That a large number of persons, to wit, eight hundred persons, who voted more than bnce, or who, though not qualified to vote, were allowed to vote and did vote^at the- various polls in Said county in said election. Thai; this contestant therefore, and for the reasons stated, asks and diemands that the ballots cast at the said Several polls in said county of Sumter shall be rejected and entirely excluded. In Georgetown Count.>- Ist. In that the commissioners of election for said county met and organized as a boardof county canvassers on the 8th day of November, 1876, instead of the Tuesday next following said election, as plainly directed by the fifteenth section of cliapter & of the general statutes of the State. Sd. In that neither the chairman of the board of managers nor one of them to be designated in writing by the board, did deliver to the commissioners of election the poll-list, the boxes containing the ballots, and the written statement of th« result of the election in his precinct ; and this is true as to each and every precinct in said county, contrary to the explicit directions of the third section of the act of 1872 (15 vol. Stat., page 171). 3d. In that the county board of State canvassers, as such, did receive from persons- other than the several precinct-chairmen of board of managers, or one of them desig- nated in writing, the poll-list, the boxes containing the ballots, and the statement of the result of the election at the several precincts in said county. 4th. In that said board refused to receive the protest of the citizens of the county and consider the same, with the proofs offered to sustain them, against the illegal oon- dnct of the said election at the Santee, Brown's,Ferry, Brooks Green, and other elec- tion precincts in said county. 5th. In that said board actually refused to count the votes of the county, ^ pre- scribed in the sixteenth section of chapter 8, general statutes, page 31. 6th. In that, having refused to count the votes of the county, the said board never- theless violated the sanctity of the seals of the boxes containing Ijhe ballots, and took from said boxes certain papers contained therein. RICHARDSON VS. RAINEY. 227 7th. In that the said election was illegally conducted in almost every respect re- quired by the laws of the State, and the refusal of said board to hear the citizen in defense of his rights, based upon proofs of said illegality, is a blow at the purity of elections, the safeguard of the elective franchise, and at liberty itself, and so utterly inconsistent with the principles of a government of the people, for the people, as to merit the rebuke of every functionary of the government whose duty it is to pass upon their conduct. 8th. In that the poll-list, the boxes containing the ballots, and the statement of the result of the election at the several precincts in the said county, were kept and trans- ported after the election by persons other than the chairman of the toard of managers, or one of them, designated in writing before the said poll-lists, boxes, and statements were delivered to the county canvassers. Ist. In that at Grior's precinct the board of managers of election were not properly organized as «uch as the law requires ; they were not sworn as managers, nor was the clerk of the board sworn according to law. Ist. In that at Birdville precinct the board of managers of election were notijrop- erly organized as such as the law requires ; they were not sworn as managers, nor was the clerk of the board sworn according to law. Ist. In that at San tee precinct the board of manHgers of election was not properly organized as such as the law requires ; they were not regularly sworn as managers, nor was the clerk of the board sworn according to law. Ist. In that at Brown'sFerry precinct the said poll was managed aud conducted by only two managers, one only of whom was sworn to conduct and manage the said elec- tion according to law in such case made and provided. 1st. In that at Brown's Ferry precinct the board of managers of election was not properly organized as such as the law required ; they were not regularly sworn accord- ing to law. , ad. In that the ballot-box from the Brown's Ferry poll was carried by one of the managers of election to the house of J. Hawley Jones, who is a candidate (upon the Republican ticket, and a political friend of said Rainey) for election as county commis- sioner, and remained therp some time before being turned over to the commissioners of election. That said box, when turned over, had every indication of having been tampered with. 1. In that at Brooks Green precinct the board of managers of election were not properly organized as such as the law requires; they were not regularly sworn as managers, nor was the clerk of the board sworn according to law. Because there was at the polls above mentioned, to wit, at Santee, Brown's Ferry, Brooks Green, Grier's, and Birdville, intimidation of the electors (both before and during the election) who desired to vote the Democratic ticket, by threatening and violent language and conduct, to snch an extent that the electors were prevented from giving free expression of their choice of candidates in casting their votes, to wit, at least six hundred voters. Because a large number of persons, to wit, Ave hundred persons, who voted more than once, or who, though not'qnalified to vote, were allowed to vote and did vot>^ at the various polls in said county at said election. The contestant, therefore, and for the reasons stated, asks and demands that the ballots cast at the said several polls in the said county of Georgetown shall be rejected and entirely excluded. In Williamsburgh County: Ist. Because there was inaugurated in said county an extended terrorism, especially over colored electors, on the part of the colored citizens of said county, both male and female, all Republicans, and the political friends of the said Rainey, resulting in the intimidation of great numbers of colored electors, and in preventing the said electors from voting the Democratic ticket and from voting for this contestant. 2dr'Because the political friends of the said Rainey, at various voting-precincts in said county, on the day of said election, and on various days preceding said election, by threats and exhibitionsof arms and force, intimidated and compelled colored elect- ors to vote the Republican ticket and for said Rainey, and intimidated and prevented other colored electors from voting for this contestant. 3d. Because a large number of persons, to wit, three hundred persons, voted more than once, or who, though not qualiiied to vote, were allowed to vote and did vote at the various polls in said county at said election. 4th. Because a poll was opened at Levy's store, in said county, on the day of said election, without legal authority for opening or holding said poll, and many ballots, to wit, five hundred and forty ballots, were received and counted as coming from said illegal poll. This contestant, therefore, and for the reasons stated, asks and demands that the votes polled at said Levy's store, and the said illegal votes in said county of Williams- burgh, be rejected and entirely excluded. Your memorialist claims : 22S digp:st of election casks. 1st. That he, the said John L. Richardson, has received a majority of all the legal votes cast at the said general election for the office of inember of Congress from the first Congressioilal distriotof South Carolina tothe Forty fifth Congress of the United States, and that he is entitled to take said seat. 2d. That the said Joseph H. Eaiuey has not received a majority of the legal votes oust for said office at said election, aiid.that he is therefore not entitled to take said seat in said Confjress. 3d. That the said Raiuey has not the prima facie right, by virtue of the certificate he holds, i o take said seat. \ 4th. That in the event your honorable body shall hold that this contestant is not entitled to said seat, y our niBmorialist claims, for the various reasons set forth in his grotmds of contest, that said seat shall be declared vacant. 5th. Contestant further objects to the regularity and legality of the returns, and claims that the certificate of the contestee based thereon is also irregular and illegal. To these grouuds, and the notice of contest based thereon, the con- testee pleads general and special denial, and then sets up counter-charges of intimidation, threats, and violence at various polls in various counties iu the district upon the part of contestant and his political friends, whereby he alleges he was deprived of many hundred votes ; and he especially objects that the vote of Horry County was uot returned in conformity with law. Some other vague allegations of voters having repeated their votes are also charged by him as having been done at various polling-places to his i)rejudice. It may be as well right here to dispose of the counter-charges of the sitting member. The committee fail to flud them sustained by proof. Indeed they are not insisted upon in the very able and elaborate argu- ments, oral and written, presented by the distinguished counsel for contestee. I'he eight hundred pages of printed testimony fail to show a single instance of intimidation or attempted intimidation upon the part of contestee and his political friends. The evidence shows close, compact organization upon the part of the Democrats ; that they had the usual demonstrations ; that they resorted to the machinery usual in political campaigns. True some of the clubs gave certificates to colored men of their membership in Democratic clubs, and it was understood that such as bore these certificates should have preference for employment and for renting lands. The following is a sample of the avowal of the Democrats in this con- nection, and is taken from Record, page 27 : SUMTHR, S. C, October 25, 1876., The Democratic executive committee recommend the adoption of the following pledge. J D. BLANDING, Chairman Democratic JEocecktive Commitlee. A. W. SUDEE, Secretary. ' The State of South Carolina; We, the undersigned, citizens of Sumter County, hereby pledge ourselves (each for himself) that we will not assist or extend any favor to any person of either race or color who shall vote for the Republican State or cpnnty ticket at the election on 7th November next ; and that we will, in all business transactions, give the preference to such persons as shall vote the Democratic State and county ticket at said election. The committee do not justify or vindicate this method of influencing voters. It is wrong, and should be condemned. Ko influences other than appeals to reason and conscience and the peaceful attempt to en- lighten the mind and influence the judgment of the voter should ever be resorted to. The party that threatens with loss of employment, entailing want, privation, and suttering, is just as culpable as one RICHARDSON VS. EAINEY. 229 I I who resorts to bribery to accomplisli political ends. These preference pledges and threats are also in direct conflict with section»5509 Revised Statutes United States. It is a sad commentary upon the political con- duct of our times that such influences as were sought to be exercised by these pledges are in frequent, almost universal, practice in every sec- tion of the country. In the vast factories and founderies and machine-shops, even in navy- yards and custom-houses and Government departments, such influences have been openly practiced and tolerated for years. But neither two wrongs, nor a thousand, can make a right, and custom can never give legal sanction to practices so foreign to the spirit of free suffrage. With regard to the case at bar, the proof shows that but few clubs in the contested district adopted these pledges, and none carried them out. But had they been universally adopted and carried out it would but strengthen the conclusion arrived at by your comn^ittee, and fur-' uish additional reason for declaring the election not a full or free elec- tion, and therefore void. The committee conclude this point by declar- ing, that in their judgment the charges of intimidation contained in the reply of the sitting member are not sustained. In considering the grounds upon which contestant bases his claim to be seated, we will take them up in the inverse order in which they are hereinbefore set forth. It will be remembered that the fifth ground of contest, as numbered in this report, goes entirely to the certificate of the sitting member. This objection might have been properly urged upon a contest for the prima facie right. In such contests, the certificate is the sole considera- tion. But the House of Eepresentatives passed upon the whole ques- tion raised by this objection last October, when, at the extra session, it voted to seat the contestee upon the prima facie right. It can form, therefore, no proper question in this contest upon the merits, and is therefore not entitled to further consideration. The fourth ground of contest, in the order of this report, embraces numerous objections to the counting of numerous polls in various coun- ties of the contested district. The irregularities and informalities of this class which the contestant regards as fatal to the vote in different counties and precincts of the district are the following: A failure of one or more precinct officers to take the oath of offlce prescribed by law ; a failure of one or more of the precinct officers to file the ofiicial oath in the office of the secretary of state ; a failure to appoint a clerk of election according to law ; a failure of the precinct officers to organize as a board ; a failure to keep a poll-list according to law ; a failure to open the polls at the hour fixed by law ; a failure of the clerk to take the oath of office prescribed by law; the fact that a ballot-box contained more than one opening; the circumstance that but one United States supervisor attended the elec- tion; an adjournment of the polls during the day; a failure to keep a tally-list ; a failure to count the ballots immediately after the close of the poll ; a failure to administer the oath prescribed by law to the electors ; the fact that the poll-list, ballot-boxes, and statements of results were not delivered to the county canV^assers by the chairmen of the precinct boards ; the refusal of the county canvassers to entertain and decide upon protests presented by electors ; the fact that the elec- tion was conducted by two instead of three precinct officers, and the fact that the county canvassers opened the ballot-boxes when they canvassed the votes. These objections are most elaborately set forth and discussed by the '230 DIGEST OP ELECTION CASES. contestant and the counsel for contestee. It will be observed that most of the objections relate to violations of the election law that are purely directory in their character. Their Tiolation, if no fraud be shown to have resulted therefrom, cannot vitiate an election. It is wholly differ- ent when mandatory provisions of an election law are violated.^ In the latter case the election is void. But the voter is not to be deprived of his right, and the citizens are not to lose the result of an election fairly held because of some unim- portant omission of form, or of the neglect, carelessness, or ignorance of some election officer, or the failure to carry out some unimportant direction of the law. {Vide McOrary's Law of Elections; Gooley, Const. Limitations; Botts v. Jones, 1 Bartlett, 73; People v. Cook, 4 Selden, 67 ; Taylor v Taylor, 10 Minn., 107 ; People v. Cook, 14 Bar- bour, 259 ; Barnes v. Adams, 2d Bartlett, 764 ; BJair v. Barrett, 1 Bart- lett, 313 ; Cox V. Strait, decided in Forty-fourth Congress, and other authorities.) Tour committee find that the irregularities complained of, even if true in every particular, are infractions of directory provisions of the law and are unaccompanied by proof of fraud, and ought not, therefore, to vitiate the election of themselves. But there being in this case graver and more serious causes of contest the committee do not con- sider it necessary to further consider the various irregularities com- plained of in the third ground. We come now to consider the more serious issues presented by this case, which are in the order of this report set forth as contestant's first, second, and third grounds of contest, and may be classed under the general head of intimidation. Under the evidence in this case it may be divided into three kinds : 1st. The intimidation exercised by the Government of the United States through its military power, in pending troops into the election districts, stationing them at or near the polls. 2d. The terrorism produced by the armed colored Republican clubs and militia. 3d. The religious and social intimidation produced by the threats of social and religious ostracism and persecution, on the part ot the colored Eepublicau clubs and churches, upon the colored people who desired to differ from them politically. And for the purposes of a better understanding of the questions now under consideration it is necessary to inquire very briefly into the politi- cal and civil conditiou of South Carolina and trace the causes which led to the extraordinary political campaign in that State iu 1876. Under the reconstruction acts a band of adventurers, pandering to the passions and prejudices of the colored race, representing, or professing to represent, both the Government of the United States aud the Eepub- licau party — the one having devised the idea of the freedom of the negro, and the other having enforced the idea, inflaming the minds and hearts of the colored race, a race long in bondage and unused to political thought and action, and not wise enough to see that the wily adven- turers were using them for their own base ends — succeeded in getting possession of every department of the government of unhappy South Carolina. Then began the sickening scenes of that regime of theft and robbery, that period of misrule and plunder which constitute in our history its saddest picture. Under the new regime a mob of men assembled as a legislature, the individu9ls composing which, with a few exceptious, were unable to read or write, corrupt at heart, intent only upon such legislation as EICHAEDSON VS. RAINEY. ^ 231 would afford them plunder, imposing upon the people writs of confis- cation under the name of taxation, selling their legislative votes and influence as coolly as the tradesman barters his wares, deaf to every in r terest of the stricken State, heedless of the protestations of the tax- payers and property-owners, callous and careless of every voice and in- terest, save the voice of avarice and the interest of their insatiate greed. Judges, under this rSgime, went upon the bench, for the most part ignorant and venal, who regarded their right to decide in causes before them as so much personal property to be sold to the highest bidder. Oovernors, under this strange regime, ascended the executive chair, whose sole aijn was to get thelargest share in the wholesale plundering that was going on all around them, and who regarded their signatures to any bill before them and their right to appoint officials as so much m«rchantable assets that they might dispose of to their greatest per- sonal advantage. A militia was organized, composed of one race exclusively, and gov- «rnment arms were placed in their hands, and they were taught as the very first duty of the South Carolina militiaman, the highest creed of their code, hatred and distrust of the white man. Eepresentatives and Senators without ability, character, or honesty «ame here to fill the places of the Calhouns, the Ehetts, the Hammonds, the Lowndeses, who have immortalized the eloquence and genius and statesmanshij) of South Carolina. In order that the work of plunder and misrule might go on, it was necessary to keep the people of the great North ignorant of the real condition of affairs, to make that people believe that the people of South Carolina were still rebellious, still filled with revenge, still resisting the will of the Government with regard to the emancipation and enfranchise- ment of the colored race ; for well they knew that if the real truth in regard to the condition of affairs in the plundered State ever reached the American people there would come such a change of men and • measures as would forever check their career of crime and end their work of spoliation. To foment strife between the races ; to array black against white; to invite the one to outrages which the other avenged with the strong hand; to import, as Ex-Covernor Moses has recently confessed, roughs and rowdies from N'orthern cities and array them in the weird garb of the Ku-Klux Klan, and then cause them to commit outrages which were charged upon the white race ; to arrest white citizens upon charge of these, outrages, and convict them by perjured testimony before hostile juries and judges ; to make of the State a vast mint, and of the blood and tears and sorrows of both races the bullion whereof was continually coined the newest and most valuable political capital ; such was the government and such the "love's labors" of the governors and rulers of South Carolina. And, saddest of all to relate, the soldier of the United States was at intervals employed to guard, to protect, to guarantee this the most mon- strous crime in the name of human government that ever stained earth or shocked high Heaven. The debt of the State grew larger and more onerous, values shrunk apace, taxation increased, labor was demoralized and disorganized, and universal bankruptcy and social and moral ruin threatened the people of the entire State. Such was the condition of affairs in 1876 when the political campaign opened. The white tax-paying people of the State knew that they could 232 DIGEST OF ELECTION CASES. not carry the State aud bring back the rule of honesty and law unless a large number of colored men joined and co-operated with them. Hence they nominated their purest man for governor, one whose name was the guarantee to every man in South Carolina that he would keep to the letter every pledge he made. The campaign was to be one of conciliation and kindness toward the negro, a great effort to win him over to the side of good government and honest ofilcials. The platform of principles put forth by the sup- porters of Hampton were, broad, catholic, liberal. The following, taken from report, pages 26 and '27, illustrates the tem- per and tone of the Hampton party t , Beaolved, That we organize ourselves into a Democratic club, to be known as "Tl^^ Sumter Democratic Club; " that in order to do so we enroll our names, and proceed to elect a president, two vice-presidents, a secretary, aud a treasurer; that the purposes for •which we organize are : Ist. To put ourselves in accord and communication with the national Democracy. 2d. And, as of the highest importance to us, to secure an honest, fair, and econom- ical administration in our county and State affairs ; and to effect this end we pledga ourselves to abide by the action of the party as expressed in State and county coi^- vention. [ ■3d. To maintain the equal civil, political, and religions rights of all citizens, with- out regard to their color or previous condition. 4th. That in the reform we seek, looking to the welfare and interest of our entir^ people, honesty a,ucL fitness for office shall be the first consideration. ! 5th. That with this end in view, and upon this broad platform, we invite all of our fellow-citizens to unite with us. Also the following, taken from report, pages 33 and 3 1 : Office Sumter County Democratic Executive Committee, SuviUr, S. C, Octoher 30, 18176. The Democratic executive committee of Sumter County urges all Democrats to carry out the following instructions : 1. To avoid all measures of intimidation, particularly as to firing of guns and blow- ing of horns on the night before and during the election. The party is solemuly oom- f mitted, by all its protestations, to a peaceful election. Demonstrations of a peaceful character, to keep up our own spirits and show our numbers and all moral forces, should be brought to bear to the utmost extent. 2. To exercise strict vigilance over the votes aud the polls, and by all means to be at the voting-precinct in full force before.6 o'clock Tuesday morning. 3. To look out especially for repeaters and the patting in of double tickets, keeping a statement of such cases, and report same to these headquarters. 4. To keep one of our lists of votes and of the state of the polls, and report same to me immediately after the box is closed. Let there be no delay, as all protests must be made at once. 5. Send in full reports from each poll immediately after the votes are counted. 6. Each Democratic manager is requested, in person, to hand me, on Wednesday morning, a copi/ of the official statement of the count of his poll. 7. Look out for all improper practices of our opponentis, and be prepared to prove them if necessary. 8. Let it be pulilicly understood that the Democratic executive committee will indict all persons who vote illegally. JAMES D. BLANDING, Chairnian Democratic Executive Committee. Peace, harmony, and conciliation were the watchwords of the cam- paign and its spirit as from the party of Hampton toward the colored race. In this spirit the Democratic conventions in many counties nominated tickets composed equally of white and colored men ; colored clubs were organized; colored men were welcomed in Democratic processions and at Democratic meetings, and the candidates of the Democratic party, from governor down," uttered from the stump the most conciliating Ian- RICHAKDSON VS. RAINEY. 233 gaage. Goveruor Hampton's campaign throughout the State was an ovation, in which colored and white men joined, and perfect peace and tranquillity reigned in the State. ( Vide evidence of Hampton, Conner,. Wa,llace, Hayne, McMasters, Moise, E., pp. 242 to 249, and many others.) Under these influences the colored people began to desert the Eepub- lican party and to join the Democratic party in large numbers. Many of the better class of colored men were already ripe for such a move- ment, having been disgusted by the lawless and infamous rule of the Eepublican officials, and being weary also of strife and contention with their white fellow-citizens. The causes, too, which had led them in the earlier days of their en- franchisement to herd in mass with the Eepublican party were becoming less apparent. The colored man was coming to feel more secure in the perpetuity of his civil and political freedom and less distrustful of his white neighbors, and he was willing now to trust the gbvernment of the State and the execution of its laws to the hands of white men. The campaign by the middle of October showed the most tremendous exertions and the utmost enthusiasm and confidence of success on the part of the Democrats, and weakness, dismay, and demoralization on the part of Chamberlain and his Eepublican followers. Dismayed at the thought of defeat, which suggested not alone the wrenching of plunder from their grasp, but also the possible punish- ment of many of the plunderers and spoliators, the Eepublican leaders resorted to the most desperate means to stem and reverse the mighty tide of popular feeling that was running so strongly against them. They counseled together and resolved to pursue the policy of whole- sale intimidation against those colored people who dared to oppose them, and to procure, if possible, the bringing of troops into the State. The latter was necessary to their ends for two reasons : First, to prevent the white clubs from protecting the colored Democrats ; and, secondly, to overawe and impress the ignorant minds of the colored people with thfr idea of power, and that the military arm of the Government was on the side of, and to be used in behalf of, the Eepublican party. The process of intimidation by Eepublican organizations against colored Democrats was to be effected, first, by threatening, intimidating, and maltreating them, and terrorizing them by means of armed colored organizations, and, secondly, by bringing to bear upon them the fear of social and re- ligious ostracism. It will not be denied that these modes of electioneering are against the spirit of free institutions and against the laws of the United States. In giving to the citizen the right to vote at aill, the right to vote as he chooses, free and untrammeled, was necessarily included. It does not require any active constraint of the body to make out a case of intimi- dation. It need not be that there is at the time of voting the presence of threats, or of force, or the present fear of actual bodily hurt. The genius of free institutions demands that the mind as well as the body shall be free to exercise the elective franchise as the voter may see fit. The fear of bodily harm, the fear of social ostracism, the fear of relig- ious wrath, if brought to bear upon the body of voters, or if exercised to any great extent, mar the purity and destroy the freedom of elections, and if it be so general as to affect the result, or if from it the real result cannot be ascertained from the returns, the election is void. McCrary declares (p. 328, Law of Elections) : The freedom of elections is of the utmost importance. The law justly regards all attempts to interfere with the electors in the peaceable and quiet exercise of their rights, or to improperly influence men against their judgment or desire, as a wime. 234 DIGEST OF ELECTION CASES. Under this rule, most, if not all, of the States have enacted statutes punishing the crime of bribery at elections, and the laws of the United States punish as crimes any undue influence, by threats, violence, or in- timidation, upon the mind of the voter. But, again, Judge Cooley, in his work on ConstitutiouarLimitations (p. 614), declares : To keep every election free from all the influences and surroundings which might bear improperly upon it, or might impel the electors to cast their suifrages otherwise than as their judgments would dictate, has .always been a prominent object in Ameri- can legislation. Again : If the violence and iutimidatioii has been so extensive and general as to render it certain that there has been no fair and free expression of popular will- by the great body of the electors, then the election iriuet be set aside, notwithstanding the fact that in some of the precincts and counties there was a peaceable aud fair election. (2 McCrary's Law of Elections, p. 326.) The laws of the States and of the United States, the spirit of popular government, the laws and precedents of England and English courts all tend to the principle that the elector shall vote and vote according to the dictates of his judgment, untrammeled and uninfluenced by any im- proper influences. Not only has intimidation by violence and threats, or the presence of armed troops at or near the polls, or of armed men other than trOops, and bribery, the promise of advancement, the treating of electors to influence their votes been held as causes that interfered with the freedom and purity of elections, but most of the States have laws which forbid courts to be h«ld, or process served on election day, or militia musters to take place, accounting that these might be used as means of intimidation or of improper influence. A great English lawyer, who is standard authority upon the common law, has written that "it is essential to the very existence of Parliament that elections should be free; wherefore all undue influences on electors are illegal." (1 Black- stone, p. 177.) And in a recent case which arose in Canada, Mr. Justice Eitchie said : The rights of individual electors are the rights of the public. * « • The public policy of all free constitutional governments in which the electoral principle is a lead- ing element (at any rate in the British constitution) is to secure freedom of election. * * * A violation of this principle is equally at variance with good government and subversive of popular rights and liberties. (Brassard et al. v. Laugevin, Supreme ■Court, Canada. Decided January, 1877.) This case was one of controverted election. It arose from the county of Charlevoix, in which an election for member of the Canadian Parlia- ment was held in January, 1876. The respondent was declared elected. His election was contested, upon the ground that "undue" spiritual or religious influence 'had been exercised by the priests of certain parishes in the county, under the ninety-fifth section of the election act of 1B74. The section is as follows : Sec. 95. Every person who, directly or indirectly, by himself or by any other person on his behalf, makes vise of, or threatens to make use of, any force, violence, or restraint, or inflicts or threatens the infliction, by himself or by or through any other person, of any injury, damage, harm, or loss, or in any manner practices intimidation upon or against any person, in order to induce or compel such person to vote or to refrain from voting, or on account of such person having voted or refrained from voting, at any election, or who by abduction, duress, or any fraudulent device or contrivance impedes, prevents, or otherwise interferes with the free exercise of the franchise of .any voter or thereby compels, induces, or prevails upon any voter to give or refrain from giving his vote at any election, shall be deemed to have committed the offense of undue in- fluence. The proof was that the respondent was supported by all the priests of the Eoman Catholic Church, and that from their pulpits one priest RICHARDSON VS. RAINEY. 235 had declared that to vote against respondent and for his opponent "was a grave sin, a matter of conscience." Another priest characterized such a vote as a "mortal sin." Another, said that with "that party (the party opposed to respondent) in power, we would wade in the blood of priests; that the horrors of the French revolution would be re-enacted ; that, to prevent these misfortunes, liberalism must be crushed by the people and the clergy." Another declared to his flock 'fthat it was a sin to vote for the liberal party, and that at the hour of death those who voted for that party would regret it." Another said, " Whoever votes for Mr. Tremblay (the opponent of respondent) would be guilty of a grave sin, and if he died after so voting he would not be entitled to the services of a priest." There was no proof that respondent had in- cited these sermons. But the court bad no diflSculty in determining the question of agency, and said : • Decisions in England, the election law of whioli is inentical-with ours, and those rendered in Ontario and Quebec, lay down tlie principle that every person who, in good faith, takes part in an election for a candidate with his consent, becomes ipso Jacto an agent of the candidate. Upon that point there can be no doubt ; and the election of a prominent member of Parliament was annulled in consequence of the excessive zeal of his agents. All these sermons [said the court], accompanied by threats and declarations of oases of conscience^ were of a nature to produce in the mind of a large number of electors of the county, compelled to hear these things during several consecutive Sundays, a serious dread of committing a grievous sin and that of being deprived of the sacra- ments. There is here an exerting of undue influence of the worst kind, inasmuch as 4heae threats and declarations fell from the lips of the priest speaking from the pul- pit in the name of religion, and were addressed to persons of little instruction, and generally well disposed to follow the counsels of their cur^s. I can conceive that these sermons may have had no influence whatever on the intelligent and instructed portion of the hearers; nevertheless, I have no doubt but these sermons must have influenced the majority of persons void of instruction, notwithstanding that by reason of the secrecy in voting by ballot it has not been possible to point out more than six or eight voters as having been influenced to the extent of affecting, their will. Ac- ■cording to tho testimony of over fifteen witnesses, a very large number changed their opinion in consequence of this undue influence. I may here state that in like cases, to annul an election a large number of oases of Undue influence by a candidate, or an agent, is not required, and that one single case, well proved, sufiices, although the candidate availing himself of it may have had an overwhelming majority. Taking the evidence as a whole, it appears clear that a general system of intimidation was practiced; that as a consequence undue influence was exercised and the Electors did not consider themselves free in the exercise of their elective franchise. Tide Mayo election case, 1857 ; Longford election case ; Galway cases ; case of county of Bonaventur'a. The principle of all the decisions in all these cases is that the priest must not appeal to tlie fears of his hearers, nor say that the elector who votes for such a candidate will commit a sin or incur ecclesiastieal cen- sures or be deprived of the sacraments. And the court annulled the election and declared it void. The committee have quoted extensively from the decision in this case inasmuch as the principle it lays down as well as the principle of the authorities it cites is applicable to some extent to the case at bar. The colored race of the South, through no fault of that race — rather let it be written by its misfortune — is ignorant and to some degree super- stitious. A strong vein of religious superstition runs through the char- acter of that race. Most of them are members of churches, and the authority of their priests and preachers is almost absolute in all social and religious matters. Emancipated but a short time ago, dreading above all things areturn to slavery, ignorantofthelasting character of that charter which gave to him his liberty, fearful that some change may relegate him to his former condition of servitude, with but little will of his own, depend- 236 DIGEST OF ELECTION CASES. ent for his social and political guidance upon his spiritual advisers of his own race or the counsels of those of the dominant race who profess utter sympathy with all his passions and prejudices, the colored race of the South constitutes an element most liable to be influenced by the arts of the demagogue or the chicanery and hypocricy of priestcraft. To keep the colored man in ignorance, to pander to his fears and hopes, his pas- sions and prejudices, to separate him from the influences of his former masters, has been the great object with those bad men who have been Ms counselors, advisers, and political taskmasters through the past ten years. They ne^er appeal to his reason or judgment. They hold up before his excited imagination the horrors of a return to slavery, the deprivation of his social, political, and religious privileges ; they teach him that the white man is his enemy; they corrupt and uti- lize the authority of the colored preachers, and threaten with loss of church privileges, the ostracism from society, the absolute severance of the marital tie, those who act or vote against their will. The record in this case discloses a condition of moral, social, and re- ligious intolerance and intimidation exercised by the adherents and po- litical friends of the sitting member in the first Congressional district ot South Carolina that renders the idea of freedom of thought and opinion, the idea of free political action, on the part of the colored race, an utter mockery and delusion. Preachers preached against the Democratic party. Threats of "turn- ing out of the church" those who acted and voted with that party, threats of divorce from wife and separation from children, threats of social os- tracism, were indulged throughout the entire district. Colored women assaulted and heaped epithets upon those men of their own race who dared to act with the Democratic party. Colored nieu were told that there was for them no social, moral, or religious existence or affiliation with their own race if they acted or voted otherwise than in obedience to the behests the Republican leaders. It is even shown in the record that the sitting member declared that all colored men who acted with the Democratic party " should be treated as enemies." And this feeling and these appeals were not confined to any particular or isolated com- munity or portion of the district, but existed and were exercised through- out the entire district. Your committee feel constrained to declare that undue, illegal, and improper influences were brought to bear upon the vast mass of colored voters throughout the first Congressional district of South Carolina, and while the proof of the extent of the influence and of its control cannot be arrived at with any degree of accuracy from the evidence, yet sufiicient is shown to leave no doubt but that these undue influences were widely felt, and prevented, in the district in contest, a free, fair, and full election. But if any doubt were left in the minds of your committee of the per- fect propriety of declaring the election in the first South Carolina dis- trict null and void for the grounds heretofore examined, the doubt is solved because of the wholesale intimidation practiced by armed colored clubs and organizations during the campaign and at the polls on elec- tion day. The evidence is clear that throughout the district, and in nearly every precinct of the district, these brganzations existed. They were armed with the State arms for the most part, but many had pri- vate arms. They went to their political meetings with arms in their hands, and at many of the polling places they appeared on election day in organized force. So intolerant were they against individuals of their own race who dif- fered with them politically that they uttered against them the most RICHARDSON VS. RAINEY. 237 tei-rible threats, and, in some cases, resorted to actual violence. They denied the right of free speech ; they tore tickets from the hands of voters and substituted others; they interfered with the domestic peace of colored Democrats by persuading their wives to leave them, and left no device that could intimidate unemployed to coerce men of their own «olor into voting the Eepublican ticket. Evidence clear and indisputa- ble is found in the record of this state of facts, and of the widespread influence with this mode of electioneering produced in the minds of the colored voters. It will not suffice to meet these facts by saying that both sides resorted to this system of tactics. The record does not sustain the charge of in- timidation generally against the (Democratic party of South Carolina, The proof is clear that they pursued the policy of conciliation for the most part. Especially was this the course that characterized the cam- paign of contestant. Governor Hampton testifies, and he is amply corroborated by other witnesses, that contestant pursued "the extreme policy of conciliation." But, grant that it was true. Graiit all that is claimed against the " rifle clubs " and other organizations of the white people. Grant that they, too, pursued the lawless policy adopted by the Eepublicans. It but affords the committee more and stronger grounds for declaring the election null and void. The committee append hereto extracts from the testimony of a few witnesses upon this point. ^ Elmore Durant, colored (Eecord, pp. 84-85) : Question. Did yoii join the Democratic party during the last campaign and vote that ticket ?— -Answer. I did hoth. Q. Was any influence hrought to bear ou you or anything done either to cause you to vote or not to vote that ticket ? — A. I was frequently warned that I would suffer personal injury if I did not quit the Democrats and return to the Republican party. As the election di'ew near it got hotter, and one morning I found a written paper, at my door which warned me that two weeks only were left for me to change in, when, if I did not return to the Republican party, my light would be put out. Q. What other information can you give? — A. 1 was working at town ; my house was 2f miles from town. I and my wife had lived in peace until I joined the Demo- crats ; we have parted since for that reason. One morning my wjfe informed me that two colored men came along on horseback and said that I would not be on that road long, unless I turned from the Democrats, and my wife advised mo to return to the Republicans or I would be killed some night. My wife's father (Dick Moore) cursed me and said if I continued to stay with the Democrats I ought to have my throat cut. He influencedjmy wife to dissatisfy her, and at last I slapped her. That night her father advised her to leave me, calling me a damned Democrat. My wife left me in September or Ist October, and on the ground that I had joined the Democrats. Isham Eobinson (colored) sworn (Eecord, p. 87) : Question. When did yon unite yourself with the Democratic party? — Answer. In March last. Q. Tell anything that was said to you to make you vote either for or against the Republican party. — A. Just before Hampton made his speech in Sumter they came to his house on a Saturday night and set tire to my cow-pen on both sides. The wind was very high at the time. I ran out and drew the fence down, and, with the help of my family, put the fire out. Q. 'Have you heard any threats previous to your cow-pen being set on Are ? — A. I did hear, and all that would vote the Democratic ticket would be burned out. (Objected to as hearsay.) In consequence of these threats I set up and guarded my premises for two weeks thereafter, and did not vote on the day of election. Q." Any other threats? — A. I heard it said, " Old Isham Robinson joined the Dem- ocrats, and ought to be whipped."' Minus Eelder (colored) sworn (Eecord, p. 88) : Question. When did you unite yourself with the Democratic club of Sumter County ? — Answer. During the last summer. Q. State what influences were brought to bear upon you to cause you to vote for or 238 DIGEST OF ELECTION CASES. against the Democratic party. — A. All tliey said, when I came to vote, a woman told my wife at the depot that if I voted the Democratic ticket I must not come back to the house ; and when I first joined the party some Republicans met me on the street and told me that I was in danger If I voted the Democratic ticket. (Objected to as hearsay and opinion.) London Sumpter (colored) sworn (Kecord, p. 88) : ' Question. When did you join the Democratic party ? — Answer. In March last. Q. Were any threats or influence brought to bear upon you to cause you to vote for or against the Democratic partyf If so, state them. — A. The day before the election I was threatened to get killed if I voted the Democratic ticket ; the information was brought to me by others. (Objected to as hearsay.) Saw that Isham Robinson's premises had been set on fire ; while canvassing the county, James Gaston told me that if I got to Weagefield, where I had an appoint- ment to speak for the Democrats, that there was a party there intending to horsewhip me ; that while going to Privateer for the same purpose, I was informed that I would be murdered, ) Cross-examination : Q. Would you have been afraid to testify if colored men had been present 1 — A. I would not. Horace Bradley (colored) sworn (Record, p. 92) : Question. Did ^ou join the Democratic party ? — Answer. I did. Q. Did you vote the Republican ticket ? — ^A. I did vote the Republican ticket ; scratched Mr. Kainey's name off and inserted Mr. Richardson's instead. Q. You say you joined the Democratic club ; how came it that you voted the Repub- lican ^ticket ? — A. They told me if I voted the Democratic ticket they would throw me out of the brotherhood society and pitch me out of doors head foremost. Q. What else was told you would be done to you if you voted the Democratic ticket f — A. Governor Chamberlain was to turn out all the convicts m the peniten- tiary, and all the colored people voted the Democratic ticket were to put in their places ; that all the troops would drive us to the polls and make us vote the radical ticket,; those that did not vote the radical ticket were to be put on a list and go to the peni- tentiary. Q. Where did you hear that talk 1 — A. Right in our church, at the society meeting. Q. Was there anything said, and, if so, what, about turning you out of the so- ciety t — A. If I voted the Democratic ticket I was to be put out, or if I put an addi- tional Democratic name on the ticket I was to be put out also. Q. Wliat was it, now, that caused you not to vote the Democratic ticket? — A. The reason stated, and in addition, because they told me that Chamberlain was to erect lafge stores throughout the country for the benefit of all Republican voters, and that the ones voting the Democratic ticket were to be placed in fields with drivers over them and the children to be put back into slavery ; this caused me to take my name off the Democratic club list. Cross-examination : Q. Was this brotherhood a political club ? — A. It was. Robert Eoss (colored) (Record, p. 93): Question. Were any threats or undue influencew brought to bear on you to keep you from canvassing the county for the Democrats and to keep yon from voting the Demo- cratic ticket? If so, state what. — Answer. They .were. I was told that if 1 should go to Privateer to speak I would not return alive, and I better had fast hoises to git away, hecause the coons down there said they don't intend to allow any Democratic niggers to address them in that section. (Objected to as hearsay.) I was a member of the Union Brotherhood with Abram Ruffian, and we joined the Democratic club ; they turued us out ; would not hear from us at all, and threatened to turn us out head foremost. • Q. What reason was assigned to yon, and who by, for the introduction of the troops? — A. I heard it ffom the court-house ring and the brotherhood that they were brought here for the protection of the Republican party, and to carry the election for the Republicans. I heard this right at the court-house. D. E. Keels (Record, p. 90): Question. Was there any intimidation of colored \otors by colort^d people which E1CHAED80N VS. EAIKEY. 239 came under your knowledge? If so, state. — Answer. A good- many told me that if colored people wonld join the Democrats they would whip them for so doing. Q. Did these threats deter colored people from joining the Democrats? — A. Of my own knowledge, I do not know ; but colored people told me they were afraid of their own color to join the Democratic party, and some said that their wives said they wonld quit their husbands; others, that they would be turned out of churches. (Object to 80 much as is hearsay.) Eobert Broun sworn (Eecord, p. 97) : Question. Were yon a manager at any of the precincts at the late election ? — Answer. I was not, but acted as the Democratic supervisor's clerk at Manchester poll, and was- there all day from 6 o'clock a. m. until the polls were closed that night, and until after the votes were counted and certificates made out and properly signed. Q. During the day did anything unusual occur? If so, state what it was. — A. I saw arms there claimed by Bepublicans, and none claimed by Democrats. Q. What kind of arms and what were they you alluded to ? — A. Soon after opening of the polls I saw colored people riding up, displaying fire-arms freely: they came up in squads; some of these arms were deposited on a wagon without a body on it, but ouly a slat iioor, within about fifty yards oft' and in full view of the polls. Q. After riding up to the polls armed, how did these men proceed to vote? — A. Left their arms without the building, crowded in the house, and were sworn in several at the time, and then voted; they were unusual boisterous about the polls and within diflferent distances of the house. • Q. Were any persons prevented from coming there to vote or from voting the Dem- ocratic ticket there tliat day? — A. Two of my tenants told me they were afraid to vote there and weut to Wedgefield to vote. (Objected to.) The colored manager, Jack Simons, a Republican, and chairman of the managers, cautioned several against voting any but the Kepublioan ticket. Isaac Haynemuth (colored) sworn (Eecord, p. 99) : Question. How did you propose to vote in the recent election ? — Answer. Demo- cratic. Q. Which way did you vote ? — A. Eadical. > Q. Why? — A. Because I heard that they were burning out so many people, it kept me back. Q. Did you hear of any other thing? — A. Yes; I heard they were whipping. Q. Who was it they said they would whip and burn out ? — A. The Democrats. Q. Where did you hear these things? — A. Through the whole neighborhood. (Objection to all hearsay.) Q. Were the other colored people on the same place wita yon going to vote as you did? — ^A. They were going to vote the Democratic ticket, and refrained, from the same rumors. (Objected to as opinion.) A. Euffin (colored) sworn (Eecord, p. 100) : Question. Were you a citizen of Sumter County and located at Sumter during the late campaign ? — Ans sver. I was. Q. Did you canvass the county as a member of the Democratic club ? — A. I did. Q. Do you know of any intimidation of colored Democrats? — A. Soon after I joined the Democratic party — I had been for a long time a member of the Union Brotherhood — I attended a brotherhood meeting, which was turned into a political meeting after the brotherhood business was over, and the necessity of keeping the brotherhood together for political purposes was shown and discussed. I was pointed out as one of" the standard-bearers, yet had gone over to the Democrats, and thus sold my birthright and my children's freedom. I tried to be heard in my defense, and was stopped by cries of "Put him out," "Kill him," &c. After that time the colored Eepublicans hooted at me in the street, and they turned me out of the brotherhood, keeping my means which I had put in. Q. What was the brotherhood formed for? — A. At first for charitable purposes, and afterward turned into political association. Q. Were you everimposed upon or maltreated for your Democratic opinions? — A- 1 was treated very roughly at Mayesville, abused and threatened with a whipping. At Sumter I was informed by Mr. J. M. Tindall, candidate for sheriff of the county on the Eepublican ticket, and at that time the sheriff, that if I went to Privateer I would be whipped. He afterward said that I would be allowed to speak if I agreed that he was to follow me, and that I had better have a good horse to get away on. At Wedgefield the buggy I was in was stopped, and I was very seriously threatened. The Rev. W. E. Johnson was riding with me. He stopped the man who was threatening me and gent him away. He was the Eepublican senator for the county. 240 DIGEST OF ELECTION CASES Q. Where were the Union Brotherhood organized ? — A. At every preomot in the county. Q. Did they afterwards turn out with political organizations of the Repuhlioan party? — A. They were organized a good while before the campaign, but after the campaign opened they turned out with banners, representing each election precinct in the county, and joined the Eepublican processions. Q. Were you present at Privateer when the sheriflf, J. M. Tindall, made an address to the Union Brotherhood ? — A. I was. Q. What sort of a speech was it ? — A. A political speech. Q. Who else spoke ? — A. Senator Maxwell, of Marlborough. Q. Was there any Union Brotherhood in Nit ? — A. None that I heard. Q. Do you know of any threats made against colored people for affiliating with Democrats? — A. It was just a generaf tantalizing and threatening of them. Some preachers never closed a sermon without bringing in the Democratic darkies. It was the common cry that any negro who joined the Democrats onght to be killed. Cross-examined: Q. At the brotherhood meetings proper, were politics discussed ? — A. No. Q. Do not the rules forbid ?— A. They do. Q. Were not there political matters discussed afterthe brotherhoodhad adjourned ? — A. There were. Q. Does the brotherhood, as such, ever transact business in public ? — A. No, sir. Q. When were you turned out of the brotherhood? — A. I can't toll the day of the mouth ; I think it was in the month of September. Q. Who ever refused you admissiou to the brotherhood upon your pi'esenting your- self for that purpose ? — A. The doorkeeper at the district meeting ; I don't know his name. Q. Was you ever refused at any other time when you went there and knocked? — ^A. I never went ; the doorkeeper told me that I was not recognized because I was a Democrat. Q. How was this meeting composed ? — A. Of delegates from the different precinct brotherhoods. Q. Were any persons except delegates entitled to admission ? — A. Not that I know of. Q. Were you a delegate? — A. I was not. Q. You speak of being threatened with a whipping at Mayesville; is it not a fact that the threats were made by a drunken man who was kept off by other Republi- cans? — A. No, sir; the threats were not made by him; they were made by those women and the crowd who were around for an hour before he came. Q. Did the man who was drunk make threats^ — A. He pretended to be drunk ; he put his hand on my Democratic badge ; he said, "You must put it off; we don't allow no Democratic niggers here." Q. Is not that the same man who was carried off?— A. He was. Q. Mention the preachers whom you have heard preach against the Democrats? — A. I have heard James White. I only go to one church. He is the only one I heard. Q. State who said that any colored man who voted the Democratic ticket should be killed? — A. I heard the general rumor that they ought to be killed. Sam MacDaffie is one that I heard say so ; also Moses James. Those are all I now can recall to he positive about. Q; Where did you hear Sam MacDufifie say so? — A. He told me so at the comer of Mr. Cohen's store. Q. Who was present? — A. I cannot call names. I saw a crowd, but don't remember persons. Ealph Wilson (colored) sworn (Record, p. 102) : Question. Were you a resident of this county? — Answer. lam. Q. Were you here during the last campaign and election? — ^A. I was. Q. Did you join the Democratic party and vote the Democratic ticket? — A. I did. Q. Were any threats made against you for joining the Democratic party and for de- siring to vote the Democratic ticket? If so, state what threats, and who made by. — A. They threatened to whip me, and threatened also to burn out every Denrocratio nigger ; further stajied that the troops came here to make them vote for the Republi- can party. / Q. Who did you hear these threats from? — A. A great many from the Republicans of Sumter. Q. Was it or was it not a fact that these reports and threats were generally circu- lated through the county ? — ^A. They were generally talked about among the colored people. Q. Do you know whether these threats and talk about the troops prevented colored people from voting the Democratic ticket ? — A. I don't know, but the colored people seemed to be very ^much afraid. RICHARDSON VS. RAINEY. 241 Cross-examination : Q. Did you believe that the troops were sent here for the purpose of making colored people vote the Republican ticket ? — A. I did not. Redirect: Q. Did you or did you not try to make the colored people think the troops were not •sent here to make the colored people vote the Republican ticket ? — A. I did ; every- where I went. Q. Did you succeed in doing so? — A, I did not; a great many of them believed the other way, and so stated to me. Edward D. Shiver (colored) sworn (Record, p. 103): l^uestion. Were you a resident of this county during the late campaign and the day of election? — Answer. I was. Q. Did you canvass the county and take an active part for the Democrats? — A. I certainly did. Q. Were any threats made to you, or did any threats come to yon for being a Demo- crat and desiring to vote the Democratic ticket ? — A. There was, by a good many ; did not pay any particular attention to any one, I being a free man to do as I please about voting ; they told me if I voted the Democratic ticket I could not stay here, but should vote the Republican ticket. Q. What threats were made to you in Columbia? — ^A. I went from here as a delegate to the convention : I was told that I could not stay there that night ; that I would be killed if I did. (Objected to that as not applying, because Columbia is not in the CongTessional district.) Q. What was it said that the troops were brought here? — A. The troops were brought here for the purpose of keeping the niggers from voting the Democratic ticket; this was generally circulated amongst the colored people. Cross-examination : Q . Can you name any one who threatened you, or who said the troops were brought here to make the colored people vote the Republican ticket, or prevent them from voting the Democratic ticket ? — A. I cannot name any particular one. Thomas D. McLeod sworn (Eecord, p. 104) : Question. Are you a resident of this county ? — Answer. I am ; of Rafting Creek precinct. Q. Where were you during the election and for some days previous thereto? — A. I was at Rafting Creek precinct. Q. If you saw any notices posted in that neighborhood, what were they ? — A. About three miles from the polling-place I saw more than one notice posted ; this was at Bry kin's Depot, in Kershaw County, and adjoining Rafting Creek precinct. (Objected to as not being in this Congressional district.) Q. Is that the depot where the people of your section ship and receive their mer- chandise ?— A. Yes, it is. Q. How frequent is the intercourse ? — A. Every day. Q. Did yon see any other notice? — A. I had one in my possession within one mile of our precinct. Q. What was the character of the notice? — ^A. It read in this way: "We have formed a band of men to whip, four in hand, every colored man who joins the Demo- cratic party to death, and after whipping, four in hand, to cut their ears oflf." Q. Were the Republicans armed?— A. They were, with muskets and shot-guns. Q. Where ?— A. At Rafting Creek. Q. To whom did you deliver the paper-notice you had in your possession ? — A. To Dr. E. J. Rembert. Cross-examined : Q. Were all the Republicans armed ? — A. I cannot say that they were aU armed; the guns were not counted. Q. How many did you see armed ? — A. To the best of my knowledge, without having made any count on the spot, about one hundred and fifty muskets and shot-guns were there. Q.' How many muskets and shot-guns did you see there ? — A. I did not count what I saw. I only saw one wagon with muskets and shot-guns. I suppose that wagon contained twenty-five. Q. How many men did you see having muskets and shot-guns upon their persons ? — A. None. H. Mis, 68 16 242 DIGEST OF ELECTION CASES. Eedireot : Q. Was there any other company of armed men t — A. I heard so, but did not see them. D. A. Foxwortli sworn (Eecord, p. 109) : Question. Are you a resident of the county, and ■were you during the last election ? — Answer. I was. Q. Was there, or was there not, a wide spread intimidation in this county over the colored voters ; and, if so, who was the intimidation exerted by t — A. Exerted princi- pally by the radical leaders and the black. Q. Were, or were not, the colored people actually afraid to vote the Democratic ticket ? — A. Some of them were. Some who voted with the Democratic party before were afraid to do so this time, and staid at home. (Objected to.) Q. What were they afraid of? — A. Afraid of the threats made by the colored people. Q. What were those threats ? — A. Various threats. Threatened to be murdered, mobbed, burned out, and some were badly beaten; wives threatened to quit their husbands if they voted the Democratic ticket ; in one instance, a woman who formerly bplonged to me, her son desired to join the Democratic party, and she threatened to cut his throat. Six men on my place desired to vote the Democratic ticket, but did not vote at all on account of the threats made. (Objected to as a matter of opinion.) Q. Did, or did not, the presence of the United States troops exert an influence ad- Terse to the success of the Democratic ticket ? — A. I am satisfied it did. (Objected to as an opinion.) Q. If the troops had not been introduced into the State and into this county, what would have been the result of the election in this county ? — A. I think this county- would have been carried by the Democrats. (Objected to as opinion.) Q. Would that result have been achieved quietly and peaceably, and without inter- fering with the free right of suffrage? — A. In myjudgraent it wouldhave been carried quietly and peaceably and without interference of the free right of suffrage. (Objected to as opinion.) Cross-examination : Q. Is it not a fact that more colored people voted the Democratic ticket at the last election than ever before ? — A. I think they did in the State, and perhaps in the county. Q. Did you hear these threats you speak of, or do you only testify from rumor? — A. I heard some myself; heard one woman say she would cut her son's throat if he joined the Democratic party, and heard two women say they would not live with their hus- bands if they voted the Democratic ticket ; the rest of the threats is from hearsay. Redirect: Q. You stated as your opinion that more colored people voted the Democratic ticket in the State and county than ever before ; is it not a fact that there never was a Democratic ticket since reconstruction ? — A. The first time the Democratic ticket has ever been before the people since reconstruction. Q. What did yon mean by saying that some who had voted the " Democratic ticket before ? " — A. I mean who had voted with the whites. (Objected to as not being in reply. ) Q. State in what way the threats of burning, murdering, and mobbing those colored' men who voted the Democratic ticket came[to your knowledge. — A. I heard the colored people converse on the subject, and they even said if such and such persons, naming them, would join the Democrats they would be burned out, murdered, mobbed, &c. D. A. FOXWORTH. Sidney W. Dick (colored) sworn (p. 110): Question. Are you a minister of the gospel ? — Answer. lam. Q. Are you a resident and a voter in this county ? — A. I am. Q. What party did you belong to during the last campaign? — A. The Democratic party. Q. What churches were you accustomed to preach at ? — A. St. John's and Shephard's Shed Methodist Episcopal church. Q. Was anything done to you by these congregations ? If so, state what it was, and why it was done. — A. I went to church Sunday in October, went to the pulpit at 11 o'clock a. m. The leader called out of the pulpit, outdoors, and asked me if I wa* going to vote with the Democrats. I told him yes, I was going to vote for Hampton and for every man on the ticket. I never voted for Chamberlain in niy life. Then EICHAEDSON VS. EAINEY. 243 Alferry Sanders, a moiuber of the same cougregation and a sohool-teaolier, 8aid if I ■would vote for Hampton that I should not preach for these people, and they should not admit me into the pulpit. Upon this the trustees called a meeting for consultation, and voted upon it in the church that I should not preach at all, and they never have since allowed me to preach. Q. Were any threats made against you for joining the Democratic party? If so, state them. — A. Four women met me on the streets, and told me that the men would whip me. Numbers of persons I met on the highway threatened to whip mo, hut I did not pay any attention to them, and I went on. E. M. Harriot (colored), being duly sworn, testified as follows (p. 114)': Resides in Georgetown County, and was residing there at the last election. Was engaged in canvassing the county ; was a candidate on the Eepublican ticket. Early in the morning went to the Santee poll, before it opened, and remained there until about 8 o'clock a. m. Went to this poll to advocate Chamberlai n and himself for elec- tion — himself for the State house of representatives. Distributed the Jones tickets, but the people would not allow them distributed. Saw a great deal of fnss and noise going on at the poll. The excited crowd would not allow one voter and others to vote for this deponent. These votes were taken away and torn up. He saw that his re- maining there would cause a fuss, since the general manner of the crowd was threat-, ening, and so he left the poll, fearing a disturbance. This excited crowd did not allow the voters to vote as they pleased. In a violent manner this crowd would not allow any of the voters to take tickets from this deponent. They would not even allow him to paste a slip containing his own name over any one on the regular Eepublican tickets ; but, in an excited manner, would let him have nothing to do with the tickets. He did not vote at this poll, because he did not believe he would be allowed to vote as he pleased. These parties were advocating the ticket upon which J. H. Eainey was a candidate. They were determined that no other ticket should be voted at the Santee poll. Saw Joseph Burt at the poll, who would meet the people as they came to the poll. Burt was the distributer of the tickets at the Santee poll. These tickets were given to him for distribution by the county chairman, who was Joseph H. Eainey. These tickets had some of the printed names scratched out, and J. A. Bowly's name sub- stituted in Bowly's own handwriting. Deponent gave a large number of tickets to a large number of voters. He saw many of these tickets torn up. Henry Smith told him there was no use to distribute his tickets for they would be torn up. Deponent swears that he attended the poll at the Santee' precinct on the 7th November last ; that he at that time met voters who were willing to vote for him, and who proposed to allow him to substitute names on tickets. He changed several tickets, but the crowd around would not allow the voters to take back the tickets from him. The manner of this crowd was very bois- terous and rough. Did not think it safe for him to remain atthis poll ; thought it best to go away. After this went away and offered voters whom he met other tickets. These tickets were taken from them by one of the same boisterous party. Eli Howard (colored) testified as follows, after being duly sworn (p. 116): That he knows Joseph Bush, who lives on Santee. He was a candidate for county oommissioner ou the Eepublican ticket. Saw Joseph Bush several times in George- town before election-day. Heard him say just before the election, while speaking to a large crowd, that if any one was damned fool enough to carry Democratic tickets to the Santee poll he would be killed. Previous to this he, Joseph Bush, told this depo- nent that he could control the Santee poll and make the people do whatever he said ; that the people would do whatever he told them. He explained to the deponent that on one occasion he had quieted a riotous crowd on the Santee, and thus he believed he had entire control over the people there. I Cross-examination : That Joe Bush was speaking to the crowd in front of S. E. Cavis's store, when he made those remarks about carrying Democratic tickets to the Santee poll. He did not stop to identify any person in this crowd. His personal interview with Joe Bush took place some three or four weeks prior. No other person was present. Deponent testi- fies that he was a Eepublican at that time and is not so now. Eedireot : After what he had heard from Jas. Bush, he, the deponent, would not have dared to go to the Santee poll to vote the Democratic ticket. He heard generally talked about that colored men who voted the Democratic ticket were not fit to live, and that preachers had said they were not fit to be members of the church. If he had voted the Democratic ticket he would have been afraid to let it be "244 DIGEST OP ELECTION CASES. known. Was in town when John S. Richardson attempted to speak to a crowd, and was prevented from speaking by a crowd, of which Harvey Jones appeared to be the leader. Harvey was candidate for county commissioner on the Republican ticket. This crowd would not allow a Democratic colored man to speak, some of them saying that no colored Democrat, should speak to them. Postmaster E. C. Rainey was also with the crowd led by Harvey Jones. He, the deponent, wanted with others to hear Richardson speak, but the crowd -would not allow of it ; and so the speakers were prevented from speaking. Has never heard one say that he was afraid to join the Democratic club. He is a man that stays in the town and never goes out in the country. Cross-examination : This disturbance alluded to, when John S. Richardson was prevented from speak- ing, was more than a week previous to election- day. Saw no disturbance like this on the day of election. Saw nobody prevented from voting at the election. He heard that the Democrats had said that no one who was true to the Democratic party wpuld vote the Republican ticket. J. A. Jackson colored (Record, p. 120) : It was supposed that the disbanding of the rifle-clubs would operate in such a man- Tier as to secure protection from colored Democrats, while the colored Republicans would be aiforded every protection by the United States troops. In the course of the canvass, went to several polls of the county. Was prohibited from going to Santee and Bowbicket, and threatened with his life if he went there. His life was threatened in Waccamaw, so that he was compelled to seek protection and use stratagem to escape. One man told him "he woNild not allow anyd — d Democrat to come in that part of the county ; that such a one would have to lose his blood there if he ever attempted it. " Was frequently threatened with his life. He knows there was considerable ostracizing of those who were Democrats ; and the threats of violence to him were such that he was prohibited from traveling and making speeches to the people. He thinks that if the troops had been brought into this State for peace and the true protection of the voter, that it was essential to have some of them in Georgetown to enable the Democratic colored voters to vote as they pleased. ' He knows there was an application made for troops to protect the colored people who wanted to vote the Reform ticket. This effort was unsuccessful. He remembers when John S. Richardson was canvassing the county ; was present when he attempted to address the people at a mass-meeting. He was frequently inter- rupted by a noisy mob, who acted in such a manner as would demons of hell. He com- pared the scene to the wilda of Africa. Fiendish howls and abrupt questions to the speaker were beyond description. This behavior compelled Mr. Richardson to give up the effort. J. Harvey Jones appeared to be the leader of this riotoils mob. On this same occasion a colored gentleman, named Hutchins, attempted to address the people in behalf of the Democrats, but was not allowed. He was not allowed to speak at all. He was led to believe that this behavior had been the result of a concocted plan on the part of the Republican leaders to interrupt free speech. At some of the polls he would not have dared to go on election-day. His life was threatened. Does not think that any man would have dared to carry Democratic tickets to these polls. The threats were so great and violent against colored Dem- ocrats as to make them fear to act or vote freely. The deponent says he is now shunned and ostracized by the Republicans because he voted and acted according to the dictates of his own conscience. He believes the ■noisy disturbance at the meeting at which Mr. Richardson attempted to speak was •created by the friends of Joseph H. Rainey. He believes that bodily harm might have aresulted to the Democrat speakers ou this occasion. He knows there were threats held out by the church by a preacher against Demo- cratic voters. They were told that the public schools would be closed up ; that in other parts of the country wives had split the heads of their husbands open, and they might do it here. Such language from the pulpit had an influence upon the minds of the people greater, after the disbandment of the rifle-clubs and the arriving of United States troops, than before. He knows, of his own knowledge, of colored men who had told him, "If they voted the Democratic ticket they would not dare to go to their wives," and two men told liim that " if they voted it they knew they would never see their homes alive." He knows some eight or ten men who said that they would not join the DAmocratio clubs, l)nt would vote the Democratic ticket, if they could do so without its being known. B. H. Williams was candidate on the straight Republican ticket for State senator. He was a presiding elder in the A. M. E. Church, presiding over the district including .XlU of Georgetown, Horry, and part of Williamsburg Counties. That previous to the election, at several public meetiiigs, he saw the Republicans as a general thing armed with guns. At one meeting, on Pee Dee, saw nearly every Re- 3>ublican present armed. RICHARDSON VS. RAINEY. 245 F. W. McCusker (Eecord, p. 122): The next .appointment was at the court-house in Georgetown. Saw a colored maa attempt to address the people from the court-house portico, but the crowd was so bois- terous and riotous that he could not be heard at all. This man's name was Hutchins, a colored Democrat who was speaking in favor of reform. He heard from the crowd calls for Richardson, and the expression, " We don't want to hear from no d — d carpet- bagger." They would not allow Hutchins to speak. Peter Woodbury addressed them, and asked them to keep order, and let Mr. Richardson speak. After order was par- tially restored Mr. Richardson began to speak ; spoke about 15 minutes without inter- ruption, when the noise and confusion began anew. Questions were put to him so fast,, aud the confusion became so great, that he was preveu ted from speaking further before he was half through. It seemed to be the set purpose of this party to deny him free speech. There was quite a commotion in this crowd, which finally broke up in a row. Learned afterwards that one man had been stabbed and another knocked down. He thought that at this time the town was threatened with a serious riot, which was pre- vented only by the forbearance of the whites. It had been arranged in the programme of the canvass that the Democrats should have one meeting at Santee ; but Irom advice given by some of the citizens residing on Santee (General Manigault and others), did not go there. Thought evil would arise from it. That the people there looked upon the Democrats as their worst enemies, and would not have hesitated to use violence at the instance of their leaders. Was in- formed that Joseph Bush had a crowd of roughs who were ready to do his bidding,, and were eager and ready for a fray. (Objected to bycontestee as hearsay.) On this account did not have the meeting, as previously arranged, The next appointment was at Sampit. On the same day the Republicans had a meeting in Georgetown, at the court-house. On the way to Sampit Bridge, met squads of colored men coming to town, nearly all of whom were armed. This had the effect of leading several of his party to apprehend danger on their return, and, fearing an ambush, they were compelled to break up the Sampit meeting and return to town be- fore night. Was not interrupted, however, on the return to town. This feeling of apprehension was particularly felt by the colored Democrats in the party with depo- nent on that occasion. They feared personal violence to themselves from the armed Republicans who had been seen going to town in the forenoon. At the Brook Green poll, on election-day, deponent saw an old colored man, who had voted the Democratic ticket, who, after voting, was severely upbraided in harsh terms hy some of the Republicans. This language was such as to have the effect of intimidating other colored men who might have desired to vote the Democratic ticket. Cross-examination : Could not say that the shooting at the meeting on Wacoamaw was at any person or persons. Does not know whether the guns were shotted or not. London Green (colored), being duly sworn, testified (Record, p. 125); That he lives on North Santee. On the day of election walked down to the Santee poll. Started from home at seven o'clock in the morning. When he got near the poll, met Paul Allston with tickets for distribution. These were the red tickets, Republi- can. He asked deponent how he was going to vote. He said "The Jones ticket." Paul said, " If you vote Jones's ticket to-day, I will see you between now and dark, because Jones is a Democrat, and no man shall vote Jones's ticket here to-day." He, deponent, told the boys with him to come on, and Paul Allston said, "If you or any man attempt to vote the Jones ticket at this poll to-day I will have you all arrested here to-day." He said he had authority to arrest any man who voted other than the- red Republican ticket; that he got his authority from Governor Chamberlain. He then pulled out a paper from his pocket purporting to be his written authority. De- ponent then said to the men with him, "Boys, if voting the Jones ticket here to-day will cause a row, and have UB all arrested, we must vote thp ticket tjiat Paul Allston. has, right or wrong." Deponent says there were about sixty or seventy men who were at first of his own. determination, but who afterwards changed their determination on account of the threats made by Paul Allston of arresting any man who voted the Jones ticket. There was a great gang of men with Paul Allston in the road, and they would not allow de- ponent and his party to pass by. Saw Joseph Burt at this poll. He appeared to be the chief mover of the crowd that was supporting the red Republican ticket. Saw no guns at the poll that day. Did not remain at the poll more than two hours after voting. Deponent says that he and his crowd were so much intimidated by the threats of Paul AllsTon, hacked up by his show of authority, that they felt compelled to vote. the red Republican ticket, which was not the ticket of his choice. 246 DIGEST OF ELECTION CASES. Deponent testifies that Joseph Burt tried to persuade him not to obey the summons issued by K. L. Eraser, notary public, to attend an examination in the present case of Jno. L. Richardson vs. J. H. Eainey. Thinks there were some 150 or more persons who were influenced by the threats of Paul Allston to vote against their choice, in the same manner as deponent was. He thinks it would have been difficult for any person to vote any other than the red Re- publican ticket at that poll on that day. Henry Smith (colored), being duly sworn, testifies (Eecord, p. 127): Resides on Santee. Took an active part in the canvass before the last election in the support of the Reform or Democratic parly ; knows Joseph Bush and other leaders of the Republican party on Santee. These leaders said that any colored man who be- came a Democrat would be spotted ; that, in other words, they would be intimidated, even to the extent of personal violence. Does not think it was safe for a colored man to go about oil Santee and advocate his political opinions. The people seemed fearful to take sides with deponent for fear of their bodies. On one occasion he was personally attacked, a few days before the election, by about fifteen or eighteen men. As he came on the road these men, in ambnsh, rose up be- fore him in such a manner that he feared they would attack him. They upbraided him with supporting the Democratic party ; they laid hold on his horse, and one struck his horse. Their manner was very violent. They said they wanted satisfac- tion that day, out of him that day. They said, "We will look after yon on election- day, and be careful what you do." They said, "You and others are going to put us back in slavery, and we band together to watch you." After many expostulations the crowd let him depart, but said, "You had better look out. If we meet you on the 7th day of November voting for one of those rebels, take care. You are not to cast any vote or come to the poll on election-day." Job Mazyck (colored), being duly sworn, testifies that be was a United States marshal at the last election; was the head deputy marshal of his county (Record, p. 132) : Heard some of the people say they would lose their rights if the Democrats were elected. Never heard anything about being turned out of church if they voted for the Democrats. Heard threats against W. H. Jones for affiliating with the Democrats. Heard that at Santee there were five men placed on the road to shoot W. H.Jones be- cause he was thought to be a Democrat. Knows one little fellow who was made drunk for the express purpose of shooting Jones, and who afterward said, "Damned if he wouldn't shoot him if he had come along." The feeling on Santee was such that it was not safe for a person to go thei-e to ad- vocate the Democratic ticket. Deponent sent Ned Lawrence down to Santee as a deputy marshal, who reported to him that the people down there would not allow any one to distribute Democratic tickets down there, and that there was a man down there who pretended to be a United States marshal, deputized by Governor Chamberlain, and said if he undertook to distribute Democratic tickets there he would have him in jail before night. (Ob- jected to by contestee as hearsay, as to what was told the deputy marshal.) This hostility on Santee was manifested against all parties who voted else than the straight Republican ticket. Burt told deponent in town that it would be unsafe to carry any other than the straight Republican ticket down to Santee. Was in town when Mr. Richardsoji attempted to address the crowd, and was pre- vented by a row. Deponent thought the disturbers ought to have been captured and put in jail. Gipson aud Harvey Jones were the leaders of this mob. Gip.son said, "Let us make a fuss, that they can't speak." The noise was so great that no free 'speaking could ))e had or heard. Heard the row, but did not see any person knocked down or cut; was away from the court-house about a square at the time of the great- est fuss. Heard Repui)lican leaders speak in such a way as to terrify the people if they voted against them. Heard Gipson, in aspeech, say, " If Eoss Johnson M-onldgo out of town he would have him whipped, for he was a d d Democrat, and was trying to get the colored people down in the ditch again." This language was very loud and indecent. Heard no other threats of violence. Was in town when General Hampton addressed the people. At this time saw Gipson in a crowd of colored men threatening all who became Democrats. Deponent, on the day of the procession, saw a colored man who wanted to raise a mob and stiike a Mr. Britton, aud deponent was forced to use his authority as United States marshal to quiet a row. The colored people who were in the procession were treated with abusive language by crowds of women and boys as they passed by, which continued during the timft the procession was moving. RICHARDSON VS. RA.IMEY. 247 Heard people say that they were going to stop the procession ou that day. Deponeut and his deputies were kept pretty active on that day in preserving the peace. He had every apprehension of there being a row. There was a dread over the mind of the people generally that ilie success of the Democratic party would lead to their disfranchisement. He knows that W. H. Jones was afraid to visit Black River, Upper Waccamaw, and Santee, because the people there had threatened him because he was thought to be a Democrat. Knows of a gi-eat mauy threats made against W. H Jones throughout the county. Heard some in town. Saw a man who had a pistol and was dodging around deponent's «hop lookingfor Jones. The behavior of this man led deponent to believe that he was on the lookout for Jones, with the intention of shooting him when he came out of the gate. This same man had previously made threats against Jones. After this, these same political enemies of Jones had made an arrangement or conspiracy to shoot into deponent's house, Trh.^re Jones was staying, bub the conspiracy was disclosed and the attempt was not made. Deponent knows that if the peo|ile had been allowed to vote as they pleased that the Jones ticket and the Democratic ticket would have got a much larger number of votes than they did. Deponent, himself, selected only two of his deputies; the re.st of them were selected by the United States marshal in Charleston. These were all Republicans but one. The election in town went off peaceably. The reason of the hostility against W. H. Jones was the belief that he had changed to a Democrat. Had heard that a preacher named Murrell had said that the only way to beat Jone,s politically was to kill him. (Record, page 134): S. E. Barnwell is a resident of Georgetown County. Lives at North Santee* Took an active part in the late canvass. Took pains to get at the situation, or the bot- tom facts of the political sentiments of the people generally. He ascertained that there was undoubtedly an ostracism practiced by the colored people against those of their color who leaned toward the Democratic party. This spirit was calculated to -depress the colored people, and that the effect on the people was intimidation pure and simple ; that they were led to fear blows and personal violence if they left the Republican party. The masses of the people on Santee were under the control of a few leaders, who evidently had great influence over them. In the campaign, an aijpointment was made by the Democratic speakers for Santee, hut was not had because the gentlemen ou Santee had an apprehension that it would lead to n violent row, from which their homes and fariiilies would be endangered. This apprehension arose from the fact of the hostility of the colored people to the Dem- ocratic party ; especially against colored men who would go with the Democrats. This hostility was clearly manifest. Deponent himself had to caution colored people who were Democrats against uttering sentiinents which could be uttered in a free country, hut which if spoken out in that neighborhood would subject them to personal violence. There was then open and avowed intimidation on the part of colored men who desired to go with the Democrats. This intimidation of the colored people was so evident that the white people of this part of the county feared that it would extend to them in a measure. The impression on the part of the whites was that efforts would be made to repress the free exercise of the elective franchise. He thinks many white men went to the Santee poll on election day solely from a .stern sense of duty ; that they apprehended danger at the poll to themselves and ap- prehended a general row. Was at the Santee poll between 10 and 11 in the morning ou electiou-day. Depo- nent stopped a group of boys who were in the act of voting when deponent got to the poll, and challenged them. In consequence of this act there was quite a commotion, a. gathering around of the colored people, who told deponent he had no right to stop, any voters. Sheriff Lesesne stepped forward and explained to the crowd before they would be quieted. Afterward deponent challenged another group of boys, when a colored man told him he had no right. Deponent replied, when this man was called away. ■ It was not safe for a black man to advocate the Democratic ticket at that poll. De- ponent would have advised a colored friend of his not to run such a risk ; that it was too great for the occasion to justify. No colored man did advocate the Democratic ticket at this poll. The demonstration of violence against the Democratic ticket was so great that the white gentlemen present did not even actually engage in advocating the Democratic «ause. Cross-examination : By ostracism deponent means revilings — threats generally — as being the mode of 248 DIGEST OF ELECTION CASES. ostracizing ; reviling them for being Democrats, and thereby being enemies to their race and color. Knows a man named Henry Smith, who was a conspicuous object by ostracism by his race. Nothing of this kind was used by the opposite party. Eather inducements and encouragements were afforded those who would join the Eeform party. Friday Bossard (colored), being duly sworn, testifies (Record, p. 140) r Resides in Georgetown County. In the last campaign took part with the Eeform- movement. Means of intimidation were used against all colored persons who wished to join the Eeform movement by the Eepiiblican parties. Joseph H. Eainey, at the- Georgetowu poll, was seen by deponent to take away a Democratic ticket from a col- ored voter, saying his name was not on it, and was only prevented by the active inter- ference of deponent from tearing it up. The doctrine was taught by the Eepublican leaders that the Democrats would put the colored people back into slavery. Does not know of any threats of actual violence. The colored voters on deponent's plautation were afraid to vote as they pleased, on account of the teachings of the Eadical leaders. Thinks a great many of them would have voted the Democratic ticket had they not been afraid to do so. Deponent's brother had to come to the poll by daybreak to vote, for fear he would be found out and in- jured, on account of having voted the Democratic ticket. From his observation on his own plantation, deponent thinks this same influence- was extended throughout the entire county, and that it prevented many colored men from voting the Democratic ticket. i Deponent feels that he himself has been ostracized by the colored Eepublicans ; that- they all turn the cold shoulder to him. They treat other colored men who voted for the Democrats in the same way, and worse — to such an extent, that in some cases deponent has had to protect some from unkind treatment on the part of the Eepublicans. The efforts of the whites to induce the colored people to join them were of the kind- est character. Some of deponent's laborers have left him on account of his being a Democrat, and thus he has been short of employes when needed. These laborers were the women named Dora Toomer, Hester Brown, Lucretia Mahew, Annie Brown, Jane Gaillard,. Susannah White, Betty Smith, Annie Bookie, Catharine Bookie, Rose McGuine, and one man named Frank Bookie, and another man, Isaac Lewis. They left in January last when their contract expired. These women are all married, and their husbands are all working with deponent. These women made their husbands vote the Eepublican ticket. They said if their husbands voted the Democratic ticket they would see what they, the women, would do ; and by that all the husbands voted the Republican ticket. Thinks he does not know that the men voted in consequence of what the wives told them. This is what led deponent to believe that the men were afraid to vote the- Democratic ticket. Tom McGuine was the name of the colored man whom J. H. Rainey attempted to- prevent from voting the Democratic ticket. Joseph H. Eainey was one of the leaders who said that those who voted the Demo- cratic ticket should be treated as enemies. Rainey was the only one of the leaders whom deponent heard say this; and also Gibson. He remembers no other. He heard Rainey say so on election-day, at the court-house, and at no other time. At the same time he heard Gibson say the same thing, and " preach a sermon off of it." The other time he heard Gibson say so was the day when Hampton was in Georgetown, when he said so in Georgetown. Peter Woodbury (colored), being duly sworn, testified (Eecord, p. 143) : Lived in Georgetown County before and at the last election. Wont around the county canvassing. Advocated the Democratic ticket. There was more intimidation in this last election than deponent had ever seen or heard of before. All of the leaders bi the Republican party that could utter a, word to- the people told them not to vote the Democratic ticket ; if they did they would cer- tainly go back into slavery. Deponent believes there were a great many men who- would nave voted the Democratic ticket if that had not been so advised by their leaders. Even in joint discussions the Republicans would try to inflame the people. Gibson would endeavor to inflame the people on every occasion. Oa the day when Hampton was in town Gibson frequently endeavored to create a row. The effect of the teaching of the Republican leaders, by which the people were intimi- dated, was to prevent the colored people fron voting the Democratic ticket. It was the general impression throughout the entire country that the colored people who supported the Democratic party would be turned out of the cbUrch. Thepreach- «rs spoke this from the pulpit. EICHAEDSON VS. RAINEY. 249 I Deponent was among tie people a great deal, and was capable of ascertaining their sentiments. The impression among the people was (when the rifle-clubs were disbanded) that the colored man who voted the Democratic ticket would not be protected, while those who voted the Republican ticket would have every protection ; that the Republicans freed them, aud that they must do what the Republicans told them to do, and that the leaders' were sent here to see that they voted the Republican ticket. Has heard the people say that if they failed to vote as the leaders said they would lose the pro- tection of the Republican party. On the night that Mr. Richardson spoke and was prevented by the people, led on by Harvey Jones, Gibson, and others, deponent endeavored to quell the riot, but in vain. Heard that Gibson had told the people that the Democrats had tried to drown him when they had brought him over fron Waceauiaw in a boat. Deponent knows to the contrary, because he was in the boat himself. Gibson spread this report about among the excited crowd that night. There was a considerable row that night, brought on by the Radical leaders. Deponent thinks this riot had a considerable effect in intimi- dating the voters who might have desired to join the Democrats. Remembers when going to a meeting on Sawpit, he saw a considerable number of colored men coming to town armed. There was a general apprehension in the minds of the colored people who were with deponent that a row was imminent. In conse- quence of this the meeting on Sawpit was broken up prematurely. Henry Perry, having been called as a witness for tlie contesta&tj after being duly sworn, testified as follows, to wit (Eecord, p. 165) : Question. Are you a resident of Darlington County, and were you present at the last general election, 7th of November, 1877? — ^Answer. I am, and was. Q. Were you a member of the Democratic club at this place ? — A. I was. Q. State what occurred to you on the day of the election. — A. After I had voted on the day of the election I staid away from home for several days. Q. Why was that ! — A. I did not want to have any fuss with my wife in consequence of voting the Democratic ticket. After the speaking of Whittemore and others she got after me abont being a Democrat. Q. Were the colored Democrats threatenedj abused, or interfered with by the Repub- licans ? — A. I was not, but have heard others abused. Abraham Brown is the only one I know of; colored Republicans threatened to beat him ; Joe Slaughter was abused by same parties. Cross-examined : Q. Who abused Joe Slaughter? — A. Joshua Daniels and B. O. Hollo way. I Q. What did they do to him? — A. They threw him out of the public-school house. Q. Was it at a political meeting of the Republicans? If so, what did he do ? — A. It was. He did not speak or offer to speak. They told him to go out, when he refused ; they then put him out. Q. Did you see or hear any one abuse Abraham Brown ? — A. I only heard of it from others. He told me of it before the election himself. Q. Who do you work for ? — A. For Calvin Strother, a colored Democrat. Q. What do you do ? — A. I am a blacksmith. Q. How many days did you stay from home ? — A. Was away from home three da^s after the election. Q. Where did you stay after the meeting spoken of? — A. Prom the meeting spoken of up to the election I staid at home. Q. Did your wife ever beat you ? — A. No, sir. Q, Did any one ever beat you ? — ^A. No, sir. • Q. Has any one beat yen or interfered with you on account of your vote? — ^A. No,, sir. Redirect examination : Q. Could a timid colored man have voted at this precinct at the last election ? — A. He could not without difilculty, in my opinion. I am not afraid of anybody. Yanty Byrd, having been called as a witness for the contestant^ after being duly sworn, testified as follows (Record, p. 166) : Question. Are you a resident of Darlington County, and were you present at the general election of November 7, 1876 ? — Answer. I am, and was. Q. Were you a member of the Democratic party ? — A. I am, and have been since the -war, and expect to remain so. Q. Have yon ever been threatened, abused, or disturbed on account of being a Dem- ocrat? — A. I have been cursed, abused, and threatened to be whipped for being a Democrat ; they double-teamed me once, and have attempted to whip me several timesi. 250 DIGEST OF ELECTION CASES. Q. Was violence used or threatened against other Democrats, colored ? — A. Oh, yes. I heard Abraham Brown's son threaten to whip him coming from the Hampton meet- ing at Darlington Court-House, the Saturday bBl'ore the election. Q. Were colored men prevented from voting the Democratic ticket by others of their own color ? — A. Many colored men were prevented from voting the Democratic ticket l)y their own color ; many have told me so since the election. Q. Could any but a bold man of your color vote the Democratic ticket ? — A. No, sir. Q. Were not the colored people' told by B. F. Whittemore and others to iire the woods on the day of election, to keep the Democrats at home to fight fire ? — A. He told ihem if the women could not control their husbands they must set tire to the woods to keep Democrats at home. Q. What sort of a day was the 7th of November? — A. It was rainy in the morning, .and the night previous. Cross-examination : Q. Did you hear Whittemore, or anybody else, make the statement above related? — A. I did not. My wife told me she heard him say so. I did not go to any of their meet- ings. Calvin Strother, having been called as a witness for the contestant, after being sworn testified as follows (Record, p. 116) : Question. Are you a resident of Darlington County, and were you present at the geu- leral election of 7th November, 1876 ? — Answer. I am, and was. Q. Were you a member of the Democratic club f — A. I was. Q. Were colored Democrats abnsed,'threatened, and disturbed by their own color, on account of their politics ? — A. They were as a general thing. A great many colored men have said to me that they did not blame white men for being Democrats, but as to black men they could not well understand it. Q. Was not a great pressure brought to bear upon colored voters by men of their own color? — A. Yes; I believe if it had not been for this pressure brought to bear by colored voters upon their own color, many of them would have voted the Democratic ticket. I don't know, bnt I think there was also pressure on the part of Democrats -against Eepublica,n8. But for the influences spoken of, I think there would have been more Democratic than Republican votest Cross-examin ation : Q. Did you hear threats made by Whittemore and others to burn the woods to keep Democratic land-owners at home? — A. I had he.^rd of firing the woods. My son, a small boy, was at the meeting and told me that Mr. Whittemore did not say that they must fire the woods, but that he (Whittemore) had heard say that ou election-day, when they went off to vote, woods were set on fire, and employers would have to stay at home and fight fire. But yoar committee could not cumber this report with further extracts from the testimony. The evidence of the witnesses, extracts from whose testimony is given above, is corroborated by Ben Allison, p. 147 ; W. K. Beamer, p. 151; J. Y. Culpepper, p. 157; Beck, p. 160; Eollins, p. 162; Hunter, p. 163 ; Moore, p. 164 ; Perry, p. 165 ; Byrd, p. 166 ; Keith, p. 166 ; Strother, p. 167; Brown, p. 169; Early, p. 175; Edwards, p. 181, and Tery many others. Among them are Eepublicans, Democrats, white and colored. Their evidence leaves no doubt in the minds of the com- mittee that the colored Republicans of the first South Carolina district by armed demonstrations, through their religious and social organiza- tious, by threats and actual abuse intimidated hundreds of their own race, forced them to vote against their will, and exercised such undue and illegal influence as to deprive the election in that Congressional dis- trict in November, 1876, of all character as a full, free, and fair election. But the saddest page of the history of the election in South Carolina remains to be written. It is that which chronicles the deliberate, will- ful, illegal, and unconstitutional effort to control the election in that State by the use of the military forces of the United States. The history of reconstruction in the South shows that the rotten-bor- ough governments which were born of military power have fallen ia pieces so soon as the military power was removed. They had no strength of themselves ; they could not exist alone. So it has been, that when- RICHARDSON VS. RAINEY. 251 ever an election was to be beld in those Staites, the bayonet was re- sorted to as the most convincing argument with the people. Prom most of the Southern States from 1868 to 1872, and in others of them even down as late as 1876, and even now in one of them, representatives, not of the people, but of the bayonet, have sat in the Congress of the United States. Let us cherish the hope that this humiliating spectacle will be seen no more. Let us believe that it was the natural result of a great war in which the Government must needs trust all to the military arm, and in which took on a fierce military spirit, which clung to it for the time its civil administration. Let us hope that it was never intended to be what in reality it was, a deliberate violation of the Constitution, and a ruthless war upon America"n institutions. By the middle of October, 1876, the fortunes of the Eepublicau leaders in South Carolina had grown desperate. The colored voters were de- serting them by thousands. They were flocking to Democratic meet- ings ; they were riding in Democratic i)rocessions ; they were joining Democratic clubs. On this point there can be no doubt. The conciliatory policy of Governor Hampton and his co-workers in the cause of reform and good government, the dreadful condition of both races brought about by eight years of misrule and plunder, the disgust of many of the most respectable colored men at the broken promises and open corruption of the Eepublican leaders, the troubles and bad feeling which caused a feeling of general distrust and insecurity — these and other similar causes were revolutionizing the minds of vast numbers of the colored race, and they were joining with their white fellow-citizens to stay the rule of the public plunderer, and to save what little was left of the State's imperiled interests. And at this time, too, perfect jieace and quiet existed in the State. There were no riots, no tumults, no bloodshed. There was, indeed, the usual excitement incident to a hotly contested political campaign, but it was all peaceful. It appears by the record that nearly every judge and sheriff in the State testify to this fact — both Republicans and Democrats. Look at the evidence (Record, p. 36): His honor Judge A. J. Shaw sworn. Question. Where do you reside ?-^Answer. In the town of Siimfier, S. C. Q. Do you hold any oflSoial position in the State, and, if so, what? — A. I am judge «t the third judicial circuit, composed of the counties of Sumt«r, Clarendon, WiU- iamsburg, "and Georgetown. Q. How long have you been the judge of this circuit? — A. Since February, 1875. Q. Where were you during the political canvass of last fall, and at the time of the ■election on the 7th of November? — A. During the month of September I was at the North. I returned to Sumter the first week in October, and have been within the limits of my circuit ever since. On the day of the election I was in the town of Sumter. Q. When did the fall and winter terras of your courts begin, and when did they close? — A. They commenced at Sumter the second week in October, and ended at ■Georgetown about the second week in November. The business of the courts, how- ■cver, did not occupy all of this time. The litigated cases in the common pleas were not tried, and there were fewer cases in the general sessions than ever before on the circuit within my knowledge. In Sumter, especially, where the dockets were always heavy, there were only five or six cases. Q. Was there during this period any insurrection, domestic violence, or lawlessness in your circuit, which obstructed or hindered the execution of the laws? — A. None that I ever knew or heard of. There was no lawlessness or violence of any kind which the ordinary process of the courts could not remedy, and,. not withstanding the very ^reat political excitement which prevailed, the laws were maintained and adminis- tered without difficulty. 252 DIGEST OF ELECTION CASES. The State of South Carolina: (Record, p. 199.) Personally appeared before me C. P. Townsend, who, after being duly sworn, says that he is judge of the foqrth judicial circuit of the State of South Carolina, and has been since August, 1872; that during the last political campaign in South Carolina, extending from July to November 7, 1876, there was no obstruction to the execution of the process of the courts throughout his circuit, so far as his knowledge extended, and. the law was administered and enforced by the ordinary method provided by the gene- ral assembly in accordance with the State constitution; and that there was no law- lessness or violence at any time during the campaign which could not have been checked and remedied by the process of the courts. C. P. TOWNSEND. It will be remembered that Governor Chamberlain's proclamation was issued October 7, charging violence, lawlessness, and insurrection. On that day the following correspondence took place (Eecord, pp. 556-560): SUMTEK, October 7, 1876. Dear Sir: In view of the grave charges made by Governor Chamberlain against the Democratic party and their mode of conducting the preseut canvass in this State- to Colonel Haskell, charges declaring that the State is ah armed camp, and that our meetings are attended by organized armed bodies, may I ask you as a Eepublican and as the chief justice of the State to say if, in your observation, these charges are borne out by the facts in the case ? You saw to-day one of the largest meetings we have held,, and you can therefore speak from experience and personal observation. I have been through seventeen of the counties of the State, and I have addressed, I am sure, at least one hundred thousand people, and I can say with perfect truth that I have not seen one single armed body of men nor has one disturbance occurred at any of these vast meetings. My solicitude for the good name of our State will, 1 trust, be a suffi- cient excuse for my calling your attention to this matter. Requesting an early answer, I am, very respectfully, your obedient servant. WADE HAMPTON. To his Honor F. J. MosES, Chief Justice. THE REPLY. Sumter, S. C, October 7, 1876. My Dear Sir : I am just in receipt of your note, and at once reply to the same. For the last three or four months I have not been in any of the counties but those of Sum- ter and Richland. Within that period I have been present at only two political meet- ings, one held by the Republican party and the other, to-day at this place, by the Dem- ocrats. Although I was at the latter but a short time, I was for the greater part of the day in the streets, with every opportunity of observing the behavior and demeanor of the large concourse which the occasion had brought together. The collection con- sisted of citizens on foot and horseback ; I saw in no instance any exhibition of arm» or any behavior inconsistent with the strictest propriety. At the Republican meeting to which I have above referred there was no attempt at interruption. I shall require very strong evidence to satisfy me that South Carolina is an armed camp. I know of nothing which would lead me so to conclude. For myself I do not know of anything which would make me doubtful in any part of the State of enjoying the same security which I feel attaches to me under my own roof. I trust the day is far distant when violations of the peace in our own borders wiU require the interference of any arm more potent than that of the law. Very respectfuUv, yours, P. J. MOSES. To General Wade Hampton. 2d. The replies of judges A. J. Willard, T. J. Maekey, Thompson H. Cooke, A. J. Shaw, L. 0. Northrop, and R. B. Carpenter ; VIEWS OF justice WILLARD. In reply to letters from Col. A. C. Haskell, chairman of the Democratic executive committee, Associate Justice Willard (Republican), of the supreme court, writes: Columbia, S. C, October 7, 1876. To Col. A. C. Haskell: Dear Sir: Your note of this date is before me, asking an expression of my view* RICHARDSON VS. RAINEY. 253 as to the existence of rancor and manifestations of violence in the character of the Democratic canvass of this State. I am unable to throw much light on this subject £01 two reasons. In the first ijlaoe, I have been absent from the State for the last three months, and only a week has passed since my return to this city. In the second pl^^ce, iny ideas of the character and responsibilities of the judicial oifioe have led me at all times to abstain from participating in political action, and accordingly I have little information except that derived from public rumor and the newspapers of what has transpired at political gatherings. I can only say- that I have witnessed nothing be- yond the circumstances generally characteristic of an excitedpolitical canvass. I have seen no violence ; on the contrary, as far as I have had intercourse with gentlemen of your party, I have observed less disposition to excited statement and personal bitter- ness than during any of the previous political campaigns in this State. I sincerely hope that the fears of many that the lawless portion of the community will be per mitted to disturb the peace and injure the good name of the State are groundless. I am satisfied that it is the intention of the leading members of your party to prevent euch a state of things, and I believe they have the ability to do so. Very respectfully, your obedient servant, A. J. WILLARD. JUDGE MACKE^'S PROTEST. Circuit Judge T. J. Mackey (Republican) telegraphs as follows: Chester, S. C, October 7. To A. C. Haskell, Chairman State Democratic Committee, Columbia, S. C. : In reply to your inquiry of this date, I would state that peace and order prevail throughout the limits of the sixth judicial circuit, embracingthe four counties 'of York, Chester, Fairfield, and Lancaster. In this circuit no armed organizations obstruct judicial proceedings, and no resistance has been ofl'ered to the due execution of legal process. In charging the grand jury of York, on last Monday, I stated that if any citizen, whatever might be his race, color, or party, had been threatened with loss of employment, or put in terror because of his political opinions, he should make com- plaint before the grand jury or in open court, and the laws should be put in motion to sustain him in the free and untrammeled exercise of all his rights of citizenship. The grand jury, consisting of nine white and six colored citizens, reported unanimously on last Wednesday night that no organizations, either armed or otherwise, having for their object the exhibition of force to control the free exercise of the elective franchise, existed in that county, and no complaint charging the existence of such organization had been made to them. The same is true of each and every county in this circuit. The only case, of political intimidation that has transpired in this circuit was tried at York on last Thursday, the defendant being one Edward McDonald, colored, charged with threatening the life of one Henry Lowry, also colored, because he had joined a Democratic club, and had declared his purpose to vote the Democratic ticket. The jury consisted of six Republican colored citizens and six white men, one of whom is also an avowed Republican. The prisoner was ably defended by W. B. Williams, esq., himself a candidate on the Democratic ticket. The jury were charged by me that they were the sole judge of the evidence, and that the guilt of the prisoner must be estab- lished beyond a reasonable doubt to warrant a conviction. They rendered a verdict of guilty, and I sentenced the prisoner to three months in jail ; the lowest penalty pre- scribed by law for the oifeuse. I have traversed many counties in the State canvass- ing for Hayes and Wheeler and in favor of Chamberlain for governor during the past- sixty days, and I have nowhere seen an attempt on the part of any portion of the popu- lation to suppress the right of free speech by armed violence. I solemnly protest against the proclamation of Governor Chamberlain as absolutely false, in so far as it imputes to the inhabitants within the limits of this circuit any purpose to obstruct the ordinary course of judicial proceedings or to resist in any manner the due execution of the laws for the protection of life, property, or the rights . of citizenship ; and I have good and sufficient reason to believe, and do believe, that the said proclamation is equally false in imputing such insurrectionary purpose to the white population in the other circuits of this State. I regard the proclamation as symbolizing fitly a formidable conspiracy against the rights of the people, having for its object the carrying of this State for D. H. Chamberlain and his candidates, which conspiracy is further typified by a board of State canvassers or election returning-board the majority of whose members are candidates on Chamberlain's ticket, and by ninety- six commissioners of election in the several counties, seventy of whom are Chamber- Iain's declared partisans, and of which last number some forty are county treasurers and auditors or trial-justices, holding lucrative offices by his appointment and remov- able from office at his pleasure, or are known to him as declared candidates for office, indorsing his ticket, who unseat themselves if they make a declaration of the election which seats the candidates opposed to Chamberlain and ticket. 254 DIGEST OP E2^ECTI0N CASES. The rifle-cli^bs that he has ordered diebauded are in the maio organizations char- tered under the act of the Republican legislature in 1874, and all ot them are acting but in the assertion of the right of the people to keep and bear arms, guaranteed against infringement in the second article of the amendments to the Constitution of the United States, and all assert their loyalty to the Union and obedience to its laws, and respect and uphold its flag. T. J, MACKEY, Judge. THE OPINION OF JUDGE COOKE. Judge T. H. Cooke (Republican) writes: Columbia, October 7. To Col. A. C. Haskell, Chairman of the Exeoutive Committee of the Democratic Party : Dear Sib: I have just read the proclamation of Governor Chamberlain as to a reign of terror in this State, and his inability to enforce the laws through the ordinary channel, and I must say that the causes alleged for issuing the same do not apply to the eighth circuit, over which I preside, nor do I b'elieve they have any existence as to any other portion of the State, I am, very respectfully, THOMPSON H. COOKE, Judge of the Eighth Circuit, State of South Carolina. THE LAW SUPEEME IN JUDGE SHAW'S CIRCUIT. In response to an inquiry of Colonel Haskell, Judge Shaw, of the third circuit, tele- graphs as follows: Sumter, October 9, 1876. To Col. A. C. Haskell: I know' of no lawlessness or violence which the law cannot remedy in this circuit. The law is maintained and administered without difficulty. A. J. SHAW, Judge Third Circuit. no RESISTANCE TO LAW IN THE SEVENTH DISTRICT. The following telegram was received this afternoon in response to one from the chairman of the Democratic executive committee : , Newberry, October 9, 1876. In reply to your inquiry, I have to say that I am in nowise prepared to express any just opinion upon the peace of the State, except so far as concerns the circuit over which I have the honor to preside. Since my appointment to the bench I have been engrossed by my judicial duties, which have been and are onerous. They have left me without time or inclination to become advise of particular matters outside of my circuit. I am not aware of any resistance to the pro, ess of the court in this eounty, where I have been holding court for a week. Unusaal quiet prevails. There seems to be a public apprehension that the times are out of joint, and general anxiety that public order should be preserved. Speaking for this circuit, I can only say that while the public mind is of course inflamed by the ardor of the campaign, I have not yet been confronted by any organized or individual resistance to the authority of the- courts. The good sense of the people will continue to preserve the public peace. L. C. NORTHROP, Judge Seventh Circuit. Col. A. C. Haskell, Chairman State Democratic Executive CommUtee : Dear Sir : I have! the honor to acknowledge the receipt of your letter of this date, propounding certain questions in reference to the condition of the judicial circuits of the State and certain military organizations. After a mouth's abeence from home I returned about a week ago, and since that time I have been exclusively occupied with oflBcial affairs, holding the regular term of the circuit courts for this county. As to the alleged lawlessness and violence in other portions of the State, I know nothing. I have seen statements in the newspapers giving different and entirely contradictory accounts of the transactions referred to in the proclamation of Governor Chamberlain, but have not examined the testimony or been in either of the localities. Since my re- turn home I have been treated by my acquaintances of both political parties with the usual kindness and respect, and I have seen no exhibition of violence and lawlessness. No resistance to judicial process or authority has been attempted in this circuit, to my RICHARDSON VS. RAINEY. 255 knowledge, siuoe 1 have had the honor to be its presiding judge. I am not acquainted with any other than the Richland rifle and the Richland volunteer rifle-clubs. I do not know of my own knowledge, nor has any complaint been made to me, of any acts of violence, open or secret, having been committed by these companies. My acquaint- ance with the members of those organizations is quite general, and, from my knowl- edge of the personal character of the gentlemen composing them, I should think no danger to the peace and good order of society could be rationally apprehended from that source. Withdrawn from partisan politics, as a citizen I feel a deep interest in the- welfare of the State, and I hope those of both parties having charge of the canvass will exercise such prudence, justice, and fairness as will insure a free, fair, and full: expression of the popular will. I have the honor to be, respectfully, your obedient servaut, E. B. CARPENTER. See also testimony of Governor Hampton, report, p. 249, Tindall, p.. 458, and numerous others. Here, then, is the solemn and deliberate tes- timony of the supreme and circuit judges of the State, of sheriffs, and of many other citizens, both white and colored, showing conclusively that Governor Chamberlain's proclamation, upon which the action of the Fed- eral authorities in sending troops into the State was based, was willfully,, deliberately, and wickedly false — a libel and a slander upon the people whose interests he was sworn to guard. Notwithstanding this profound peace, it was determined by the Eepub- lican leaders to overawe the State with the presence of troops. They could be used to discourage the Democrats, to encourage the Eepubli- cans, and to deter colored men from voting with the Democrats. With the colored race of the South no argument is so powerful as the argu- ment presented in the uniform and bayonets of Federal troops. They believe that to the Union troops they owe their freedom. They have been carefully tutored that they cannot oppose the will of the Govern- ment. They are not versed in the law and Constitution sufficiently to know that in popular elections the Government has no right, no will, and no voice. Ignorant and credulous, they were ready to believe that the coming of the troops was for tbe purpose of compelling them to vote the Eepublican ticket, and to arrest and punish them if they failed to do so. AH this their cunning and unscrupulous leaders well knew. Hence they determined, as the last resort, to cause troops to be sent into the State. On the 7th day of October, Governor Chamberlain, himself a eandidate for re-election, issued the following proclamation. (Report, p. 11) : pboclamation. State of South Carolina, Executive Chamber. Whereas it has been made known to mo, by written and sworn evidence, that there exist such unlawful obstructions, combinations, and assemblages of persons in the •onnties of Aiken and Barnwell, that it has become impracticable, in my judgment, as governor of the State, to enforce by the ordinary course of judicial proceeding the laws of the State within said counties ; by reason whereof it has become necessary, in my judgment, as governor, to call forth and employ the military force of the State to en- force the fail hful execution of the laws ; And whereas it has been made known to me as governor that certain organizations and combin-itions of men exist in all the counties of the State, commonly known as '.' rifle-clubs"; And wheieas such organizations and combinations of men are illegal and strictly forbidden by the laws of this State ; And whereas such organziatiens and combinations of men are engaged in promoting illegal objects, and. in committing open acts of lawlessness and violence: Now, therefore, I, Daniel H. Chamberlain, governor of said State, do issue this my proclamation as required by the thirteenth section of chapter 132 of the general stat- utes of the State, commanding the said unlawful combinations and assemblages of persons in the couuties of Aiken and Barnwell to disperse and retire peaceably to their homes within three days from the date of this proclamation, and henceforth to abstain 256 DIGEST OP ELECTION CASES. from all unlawful interference with the rights of citizens, and from all violations of the public peace. And I do further, by this proclamation, forbid the existence of all said organizations or combinations of men commonly known as "rifle-clubs," and all other organizations or combinations of men or formations not forming a part of the organized militia of the State, which are armed with fire-arms or other weapons of war, or which engage or are formed for the purpose of engaging in drilling, exercising the manual of arms or military maneuvers, or which appear or are formed for the purpose of appearing under arms or under the command of officers bearing the titles or assumingthe func- tions of ordinary military officers, or in any other manner acting or proposing to act as organized and armed bodies of men ; and I do command allsuch organizations, com- binations, formations, or bodies of men forthwith to disband and cease to exist in any place or under any circumstances in the State. And I do further declare and make known by this proclamation to all the people at the State that, in case this proclamation shall be disregarded for the space of three ■days from the date thereof, I shall proceed to put into active use all the powers with which as governor I am invested by the constitution and laws of the State for the en- forcement of the laws and the protection of the rights of the citizens, and particularly, the powers conferred on me by chapter cxxxii of the general statutes of the State, as well as by the Constitution of the United States. In witness whereof I have hereunto set my hand and caused the great seal of the State to be affixed, at Columbia, this 7th day of October, A. D. 1876, and in the lOlst year of American Independence. [L. s.] D. H. CHAMBERLAIN. By the governor. H. E. Hayne, Secretary of State. The utter falsehood of this proclamation has already been shown. It was indeed but the reckless assertion of a reckless leader of desperate men, who was determine to try that "elixir of life" to the carpet-bag government — the presence of United States troops — as the last remedy to perpetuate its wretched existence in that unfortunate State. It was, to the people of South Carolina, the formal announcement that their State was again to be carried and their officers and legislators elected and Presidential electors chosen by means of military interfer- ence and intimidation. The call was most promptly responded to. Your committee would fain hope that in issuing the proclamation given below, the President of the United States was but honestly acting as he thought best for the pub-; lie weal. But the date of the proclamation, the hasty and over-zealous action of the then Secretary of War, the hurried movement of the troops, the anticipation that the proclamation would be unheeded, the presump- tion against all legal teaching, that a crime would be committed, leave no doubt in the mind of your committee that the authorities of the Federal administration lent themselves and all the appliances and agencies of the Grovernment to the conspiracy to carry the election in South Car- olina by the bayonet. On the 16th day of October, 1876, General Euger, commanding at Charleston, telegraphed President Grant that all was quiet in the State, and added, " If I need more troops I will send you a dispatch telling you I need them." Yet, on the very next day, President Grant issued the following proclamation : Whereas it has been Batisfactorily shown to me that insurrection and domestic vio- lence exist in several counties of the State of South Carolina, and that certain combina». tions of men against law exist in many counties of said State, known as rifle-clubs, who ride up and down by day and night, in arms, murdering some peaceable citizens and intimidating others ; which combination, though forbidden by the laws of the State, cannot be controlled or suppressed by the ordinary course of justice; and whereas it is provided in the Constitution of the United States that the United States shall protect every State in this Union, on the application of the legislature, or of the executive when the legislature cannot be convened, against domestic violence ; and whereas, by laws in pursuance of the above, it is provided in the laws of the United RICHARDSON VS. RAINEY. 257 States that in all cases of insurrection in any State or dbi-trucHon to tlie laws tl^ereof, it shall be lawful for the President of the United States, on applicalion of the h'.gisla- ture of such State, or of the executive when the legislature cannot he convened, to call for the militia of any other State or States, or to employ such part of the land or naval forces as shall be judged necessary for tlie purpose of suppressiu;^ such insurrec- tion or causing ihe laws to be duly executed ; and whereas the legislature of said State is not now in session, and cannot be convened in time to meet the jjresent emergency, and the executive of said State, under section 4 of article 4 of the Consti- tution, and of the laws passed in pursuance thereof, has therefore raiide an application to mo in the premises for such part of the military forces of the United States as may be necessary and adequate to protect said State and the citizens thereof against domestic violence, and to enforce the due execution of the laws ; and whereas it is required that whenever it may be necessary, in thejudgmeut of the President, to use the military force tor the purpose aforesaid, he shall forthwith by proclamation com- mand such insurgents to disperse and retire peaceably to lUeir respective homes within a limited time: Now, therefore, I, Ulysses S. Grant, President of the United States, do hereby mal^e J)roclaraation, and comniand,all pwsons engaged in such unlawful and iiisurrectioiniry proceedings to disperse and retire peaceably to their respective abodes within three days from this date, and hereafter abandon said combinations and submit themselves to the laws and constituted authorities of said State; and I invoke the aid and co- operation of all goodcitizens thereof to uphold the laws and preserve the public peace. In witness whereof I ha\e hereunto set my hand and caused the seal of the United States to lie affixed. Done at the city of Washington this 17tli day of October, 1876, and of the Independ- ence of the United States one hundred and one years. U. S. GRANT. By the President. John L. Cadwaladek, Acting Secretary of Stale. The following order was issued this evening, in pursuance of the action taken at the Cabinet meeting to day, for the protection of the public peace in South Carolina: War Department, WasMngiOH City, October 17, 1876. General W. T. Sherman, Commanding Unit eel Staits Army : Sir: In view of the existing condition of aifairs in South Carolina, there is a possi- bility that the proclamation of tlie President of this date may be disregarded. To provide against such a contingency, you will immediately order all the available force in the Military Division of the Atlantic to report to General Ruger, commanding at Columbia, S. C., and instruct that officer to station his troops in such localities that they may be most speedily and eifectually used in case of any resistance to the au- thority of the United States. It is hoped that a collision may thus be avoided, but you will instruct General Ruger to let it be known that it is the fixed purpose of the government to ciirry out the spirit of the proclamation, and to sustain it by the inili- tary force of the General Governinent, supplemented, if necessary, by the militia of the various States. Very re8i)ectfully, your obedient servant, J. D. CAMERON, Searelary of (Var. Your committee have thought proper to insert in this report the order of Mr. Secretary of War Oaraeroii, as that official in his zeal to cany out theprogramme of electioneering by the bayonet, wrote his celebrated order in such a style as makes manifest the real designs of the Federal administration. His order bears the date 17th of October, issued simultaneously with that of the President. He thinks it possible the PresWent's proclama- tion may be disregarded. He presumes "disobedience," lawlessness, resistance. Such are not the doctrine of the law. He hurries forward all "available troops." Yes, there was need of haste, for only twenty days remained until the election was to be held. The bayonet elixir of life to the " carpet-bag" government in South Carolina must be speedily H, Mis. 58 17 258 ♦ DIGEST OF ELECTION CASES. administered or it would be too late to save it. Therefore, without waiting to see the effect of the President's proclamation, ar great public expense and trouble, and in the face of General Euger's dispatch, dated only the day before, that he needed no more troops, all the troops in the military district are hurried to South Carolina. The Secretary instructs General Eager to station these troops at the most available points for use in case of resistance and collision. This order is carried out in true military style by scattering the troops in insignificant sq uads all over the State, thus destroying their strength and rendering them in case of real collision an easy prey to an enemy inferior in strength, who could destroy them in detail. This force too was, if need be, to be supplemented by " the militia." What militia? In South Carolina the militia was composed of but one race. The jcolored voters constituted " the militia." They alone were organized and armed with the State arms. The whites were unarmed. There was in this threat, to supplement the Army with the militia, a most diabolical threat of setting one race in arms against the other race, and that, too, in time of great political excitement. In the first Congressional district of South Carolina the troops were stationed at eleven places, and all of these happened to be i)olling places. Your committee undertakes to say that a more causeless invasion of the rights of the people of a State, a more flagrant disregard of consti- tutional obligation, more thorough contempt for every principle of free government was never manifested in American history, than the send- ing of troops into South Carolina in October, 1876, by the Federal author- ities. It was without shadow or pretense of justification or excuse. It is, too, a most singular fact, in view of the pretense under which the troops were sent, that so soon as the election was over they were withdrawn from the interior and concentrated at Columbia, the capitalr of the State, to guard the count and the ofiQcers making it; and there they remained in the state-house until the administration which sent them passed away, and a wise constitutional policy withdrew them from the State. The effect of the coming of the troops into the State was instanta- neous and marked. True, the soldiers themselves did not interfere, but their very presence was enough. The colored voters were told that they were there to coerce them to vote the Eepublican ticket; nay, to ar- rest and cause them to be punished if they did not do so. All this is set forth so clearly in the evidence that the committee deem it unneces- sary to say more on this point than to call attention to the subjoined extracts from the testimony. Wade Hampton, governor of South Carolina, being called and duly sworn, deposes and says (Record, p. 243) : Question. State what was the spirit of the caiupaign in 1876, as conducted by the Democrats and Republicans. — Answer. On the part of the Democrats the effort was to make the campaign thoroughly conservative and conciliatory. I was in all the coun- ties of the State, and saw no intimidation by Democratic whites or negroes against Ee- publicans, white or colored. The only evidence of disorder I saw was in the first Con- gressional district, where the colored Eepublican voters endeavored to intimidate those of their own color who wanted to vote for the Democrats. This was notably the case in Georgetown, where they used every eSbrt to drive the colored voters from joining the Democrats, and I heard threats of violence used by them. I was satisfied but for that pressure a greater number of the colored people would vote with the Democrats. I believe that this spirit of race proscription was exercised all over the State, and ex- ercised a very powerful and detrimental influence against the Democratic party. All the addresses of the Democratic speakers in the first Congressional district were conciliatory. Mr. Eiohardson accompanied me and took the extreme course of con- ciliation. Q. Did there exist any necessity for the proclamations of President Grant and Gov- RICHARDSON VS. EAINLY. 259 ernor Chamberlain disbanding tlie rifle-clnbs? — A. In my judgment there was no necessity. The judges all stated that there was no resistance to legal process ; in my canvass I saw no evidence of interference with or resistance to law. The whole effort that I made dnring the canvass was to assure the people of the absolute necessity of preserving peace and abstinence from violence. As soon as the proclamation appeared I advised all the clubs to disband, and at no single meeting attended by me in the State was there an armed organization of men. Q. What was the effect of these proclamations and of the introduction of United States troops upon the colored voters and upon the eleotioB ? — A. I think that the presence of the troops produced a great change among the colored votei'S, from the fact that they were told that the troops were placed here for the purpose of making them vote the Republican ticket. That the troops not being placed where they could have given protection to the colored Deniocr its exercised aa influence injurious to the Dem- ocratic cause. I had applications from several places asking that troops should bo placeil to protect colored Democrats. I did apply to Gi neral Euger; troops were not sent, on the ground that he had not troops enough to send to the particular places. Troops were sent generally in larger numbers in the upper counties where the whites were in majority. In the low country where tb.e Republicans were in majority fewer troops were sent. Q. You state you saw no intimidation by Democratic whites or negroes against Republicans, white or colored. Were there tlireatsmade by Democratic wliites, within your knowledge, that they would not give employment or rent their lands to colored l>ersons who should vote the Republican ticket? — A. I hoard no threats of this kind, of my own knowledge. I did see that some of the Democratic clubs did say they would uot employ those who voted against them. That pnlicy has not met my ap- probation. All the enuiioiations I have made called on our people not to have any pro.scription. Q. Please state in what way the colored Republican voters, in the first Congressional district, endeavored to intimidate those of their own color who wanted to vote for the Democrats. — A. Moat of the information I have came from the colored Democrats themselves, who said that threats were made against them by people of their own color. At themeetings they freq>iently jeered the colored Democrats ; and at George- town they followed the procession through the town, using violent language. The promiui.'nt colored Republicans and women tried to keep the colored Democrats from the meeting, and there I saw the only act of violetrce ; they threw a brick at my carriage ; nothing but the coolness of the Democrats prevented a riot. Q. You state that the uegroes were told that the troops were placed here for the pur- pose of maki ng them vote the Republican ticket. State whether th'Se who told them 80 had authority to tell them so ? — A. I don't suppose they were told so by authority. They were led to believe this by party managers. Q. Were the colored Democrats limited to any particular part of the State ? — A. No ; colored Democrats voted in every county of the State. ■ , Q. Was the proportion of colored Democrats to colored Republicans greater in some , parts of the State th>in others? — A. Yes ; the proportion was greater in some parts of the State than in others. In Abbeville, Barnwell, Newberry, the proportion was greater than in Colleton, Beaufort, and Georgetown. Q. Were there no troops placed in Barnwell, Abbeyville, and Newberry? — A. Yes; there were troops there. E. W. Moise, being called and sworn, deposes and says ( Record, p. 241) : Question. Were you ,in the State of South Carolina during the election held on 7th November, 1876 ?— Answer. I was, and canvassed the State during the campaign. Q. What was the policy of the campaign on the part of the Democrats? — A. To make as much exhibition of power as they could, but to avoid any acts of actual violence. Q. Was there during the campaign any resistance to civil process, or any interrup- tion of the due and legal execution of the laws?— A. I know of none such, and saw none such. Q. Do you know anything of the introduction of the United States troops in the State, and the effect thereof ?— A. United States troops were introduced into the State just previous to the election, and I regard the effect as enabling the colored Republi- cans to intimidate the colored persons who had previously proposed to vote the Demo- cratic ticket. Q. State any instance you know of this. — A. I have been informed by my tenants, being colored Republicans, who had proposed to vote the Democratic State ticket and for Mr. Hayes in this election, that they were afraid to do so because of the threats used toward them by other colored Republicans to the effect that they would either be pl.mced in slavery or lose some rights which they then enjoyed if the Democrats went into power, and that the troops had been sent here for the purpose of requiring 260 DIGEST OF ELECTION CASES. the colored people to adhere to their party, aud for preventing the white people from persuading them or inducing them to vote the Democratic State ticket. Q. Can you give any names? — A. I can. The foreman on my plantation in Claren- don County, named Alfred Lemon, informedmein the presence of General Wade Hamp- ton and others at Manning, in said county, that he proposed to vote for the State Dem- ocratic ticket, and that the men on the plantation ])roposed to do the same. He after- ward informed me that he had not done so for the reasons above stated. Q. Di) you know of any other instnnces of intimidation toward the colored people during the late election 1 — A. I do. I was present at the mass-meeting at Sumter, addressed by Mr. Cliam'berlain, Mr. Cardoza, William E. Johnson, senator from Sumter, and others. 1 heard Mr. Cardoza say tljat the colored man who would vote for the Democrats in this election would deserve to lose his freedom, and I heard William E. Johnson say that the Democrats would treat them as Ehul was treated in the Bible; that Ehul was a portly man like the treasurer; that a petition was presented to him, and that when he asked' to read the petition the petitioner advanced to him, and when he got close plunged a knife in his bowels; and so, he paid, will the Democrats. They offer you fair promise now, but if you ever let them get control they will lay something on your liacks. This was heard by from two or three thousand colored people. I also know thai a man named Albert Howell, in the town of Sumter, a colored hackman, was struck by a colored woman with an umbrella, simply because he spoke to her, alleging that she did not peimit any colored Democrat to speak to ber. Q. On the day of 7th November, did j-ou see any troops of the United States near any of the polls ? — A. Yes. At Sumter I saw two officers and a detachment of United States troops under arms, for three. or four days before and three or tour days after the elec- tion and on the day of election. Their camp was not over four hundred yards from the polling-place. Sumter is in the tirst ( ongressional district. James Conner (Record, p. 243): Q. What do you know of the introduction of United States troops into this State during the canvass, aud the effect upon the voters, and especially the colored voters? — A. I know nothing of the introduction of the troops; I only know that they came, and that their coming was accepted by the negroes of the low country as aii indication that the government intended that the negroes should vote the Republican ticket. It was generally accepted that the ybject of their coming m as to overawe the Democrats and to prohibit the rifle-clubs, or rather to disband them. In brief, it was to depress and neutralize the Democrats and embolden and strengthen the Republican leaders, aud it succeeded and accomplished that work effectually. Q. Wliat efi'ect had the proclamations of President Grant and Governor Chamberlain disbanding the rifle clubs? — A. I don't think the proclamations had any effect at all; it was the Federal troops enforcing the proclamations which gave life and efficacy to them. I don't think oi;e negro in a hundred could either reij,d or understand the proc- lamations, biit they could all see the United States troops, and understand what they we'-e then- for. Q. What do you know of intimidation by colored voters of other colored voters who wanted to vote the Democratic ticket ? — A. I know nothing, except in Charleston County, and there the intimidation of colored voters. Democratic voters, by colored Republicans, was general and very effective. Large numbers who had pledged them- selves recanted and said the pressure was too heavy. Q. Do you know of any actual or threatened violation of the public peace in the first Congressional district, which the civil authorities could not easily and readily suppress? — A. None. Q. Under whose control has the State government — legislative, judicial, and execu- tive — been since 186fi ? — A. h'oi the past eight years the F. W. McMaster, being called and sworn, deposes and says {Eecord, p. 243) : Question. State what you know of the spirit of the" late campaign in 1876, as con- ducted by the Democrats and Republicans. — Answer. I was actively engaged as can- vasser in four counties. In every one extraordinary efforts were made for the concili- ation of the negroes. I know of nothing on tlie part ot the whites against the negroes. 1 have seen some iutimidatioc attempted to be exercised by Radical negroes agaiust Democratic negroes, aud have heard of many instances, especially on the part ol nen-ro women agaiusii colored Democrats. In Columbia, on 3d November, when Hampion addressed the p60|)lo here, I rode at the head of the procession. There was some Democratic negroes in the procession. There was bands of negro women on the pave- ments, jibing, ridiculing, and abusiiig them. The iutimidation of colored Democrats by ciilored Republicans was, in' my opinion, general and at times serious. I have no doubt it had great effect in preventing many colored people from voting with the Democrats. 1 was struck with this at three public gatherings, where I considered it RICHARDSON VS. RAINEY. 261 required a good deal of heroism for a negro to declare himself a Democrat. Two of these meetings were Damooratic meetings; the other a Republican meeting; Q. Did there exist any necessity for the proclamation of President Grant and Gov- ernor Chamberlain disbanding the rifle-clnbs?— A. There was not the slighest neces- sity for such proclamation. The State was in profound peace. There was no resist- ance to legal process. The course of justice was not interrupted, so far as I know. I heard of commotions on the Combahee rice plantations, confined to the negroes. Q. What was the effect of the proclamations of President Grant and Governor Chamberlain disbanding the rifle-clubs and of the presence of United States troops introduced in the State upon the colored voters? — A. It Infused into the colored mind that the time for the forty acres and the mule had come. It paralyzed the negro who was willing to vote with us and eraboldi-ned the Republican negroes. They acted with the idea that they were required by General Grant to vote the Republican ticket. William Wallace, being sworn, says (Eecorcl, p. 247): Question. State what was the spirit in which the campaign in 1876 was conducted on the part of the Democrats and Eopublicaus. — Answer. Ou the part of the Dem(>- crats great activity was used. The State had been ruined by the Republican. Govern- ment, and they intended to use every lawful aiul proper means to redeem the State. The campaign was conducted peacefully and in a conciliatory manner. It was the first time that our white people had gone regularly into a canvass with the negroes. They wanted to give the negro the opportunity of hearing the truth, which they h^d not heard before in any political canvass, :i,ud tlie effect was tremendous. Had things been left to the normal and legitimate inilueuCBS, I believe the State would have gone Democratic by 50,000 majority. Q. What waa the effect of the proclamations of President Grant and Governor Chamberlain disbanding the ritle-clubs, and of the presence of ITaited States troops ' introduced into the State ou the colored voters? — A. It had the effect of taking away that confidence which the negroes were beginning to have in the native white people of the State again. It made them feel that they were powerless to protect them against those of their own race who were still under the control of their Radical leaders. Leroy F. Youmatis (Record, p. 250): Q. Was there anything in the condition of the country justifying the proclamation of President Grant and Governor Chamberlain, and the introduction of United States troops? — A. In, my judgment there was not. Tlie State was in profound quiet, legal process unobstructed, and the administration of the laws uninterrupted. In fact, up to a very short time before the nomiuatiou of Hampton fur governor by the Dem- ocrats, a large fraction of that party was opposed to any nomination in opposition to Mr. Chamberlain's re-election, the most influential Democratic newspaper in" the State ably and zealously advocating that course. Q. What was the effect of the proclamation and the introduction of the troops upon theelecticm? — A. In my judgment it widened whatever breach may have existed be- tween the two races, and impeded the tendency to union in political action which had been rapidly gaining ground, and very largely increased the Republican vote, colored, and diminished the Democratic colored vote which otherwise would have been given. Q. Has the registratioa required by the constitution ever been carried into eft'ect.; and, if not, whj not? — A. It has not, for the reason that the Republican party, which for eight years has had entire control of all the departments of the State government, and also of the local judiciary ami local financial matters in the counties, has chosen to disobey the positive mandate of the constitution. Cross-examined by Mr. Cavender, for contestee: Q. Please state in what'way the introduction of troops widened the breach between the two races. — A. The published utterances of the governor immediately preceding the proclamations, and the introduction of more troops, threatened material injury to the State, in terms, and naturally induced the belief that the subsequent acts of the governor and President would be dictated with the desire to advance the interests of colored Republicans at the expense of white Democrats. Q. Please state what utterances of the governor you allude to. — A. Especial allu- sion is made to his, Chamberlain's, letter to Col. A. C. Ilaskell, chairman of the execu- tive committee of the State Democratic committee, published in the papers and widely circulated as a campaign document. Q. What was the general tenorof that letter?— A. Bitter denunciation of the white Democrats and throats of injury to the material interests of the State constituted its tenor in this regard. The letter itself would furnish the best answer to the question; it was published early in October, 187(5. Q. Do yon think that bitter dennuciation of white Democrats and fhreats of ma- terial injury to the State very largely increased the colored Republican vote and de- 262 DIGEST OF ELECTION CASES greased tho Democratic colored vote? — A. I thiuk they did, followed by the proclama- tions, and the introduction of the troops foreshadowed therein. William E. James, having been called as a witness for the contestant, and duly sworn, testified as follows, to wit (Record, p. 726): Question. Are you a resident of Darlington County, and were you present at the last general election? — Answer. I am and was. Q. What is your occupation? — A. Planter. Q. But for the interference in that election by the State and Federal executives by proclamations and by the introduction of troops into the State, which party, in your judgment, would have carried the county. ( Objected to as calling for an expression of opinion.) A. The Democratic party. This was conceded by prominent members of the Repub- lican party. B. W. Edwards (Eecord, p. 698): Q. Was the introduction of United States troojis regarded by both parties as a politi- cal measure? (Objected to as not being in rebuttal and as being matter of opinion and cumula- tive. ) A. It was so regarded by the Democratic paity, and I believe it was by the Republi- can. The Democrats so regarded it, because it was entirely unneccNsary ior any other purpose. When Goveraor Chamberlain issued his proclamation to the clubs which he styled rifle-ciubs to disband, they did immediately break up their organizations and discontinued anything that might be construed military maneuvering, so that there was no pretext for sending United States troops iulo Darlington County. Q. What effect had their coming upon the election? — A. It increased the Republican vote and decreased the Democratic vote. It was commonly said (objected to as to what the witness would say as hearsay) that the Republicans told them, the colored voters, that the soldiers were sent there to see that they voted the Republican ticket, and the eifect upon their minds and actions vi-ritied the statement. Again at pages 704 and 705 : Q. How do you say that the Democratic vote was decreased by the coming of the troops, when you know that they polled their full strength in this county, and when you have good reason to know tliat more colored men voted this ticket at the point where the most troops were and the longest stationed, and wiiere you say yourself that more colored men voted the ticket than at any previous election, and where you don't know what the Republican and Democrat vote of the county was? — A. When I say the Democratic party voted their full strength, I meant the white people, but. we ought to have carried with us the colored people, and had the prospect of carrying a mnqh larger number prior to the introduction of troops than we did carry. After it was known that troops were to be introduced, I could observe the chilling i ffects upon the Democratic campaigu and tho strength it gave the Republican party, the leaders of which usedit efl'ectually against us, a.i id thereby diminished the number ol Democratic colored votes and increased the number of Republican votes. . Q. What did you hear these leaders sa,y about the trooi)s? — A. I didn't hear them say very much, as they didn't come to our meetings or favor our going to theirs. A. S. White, a Eepublican, having been called as a witness for the contestant, after being duly sworn, testified as follows, to wit (Kecord, p. 710): Question. Up to a very short time before the 7th of November last, was there any unusual disorder or disturbances of the (leace in Darlington County ? (Objected to as calling for opinion and as being cumulative and not in rebuttal.) Answer. I know of none. Q. In your opinion, was the introduction of United States troops in this portion of the State pending the late election called for? (Objected to for the same reasons as the foregoing question.) A. No, sir. Q. What was the effect of the introduction of the troops upon the election ? (Objected to for the same reasons as the foregoing question.) A. It tended to discourage the Democrats and encourage the Republicans. Q. Was not their coming regarded as a political measure? (Objected to on the same ground as the previous question.) A. It was generally so considered. * Q. Did the Democratic organizations of this county, in your judgment, tend to inter- fere with the freedom of the election ? RICHARDSON VS. RAINBY. 263 (Objected to as a matter of opinion.) / A. 1 think not. Q. Were there any indications that the Republican voters were deterred, through frfar, from voting? — A. I saw none. Q. Were they not, in your judgment, fully alive to their advantages of numbers, the prestige of previous victories, the moral and physical support of the State and Federal Government ? (Objected to as calling for matters of opinion.) A. I think they were. Again, at page 713: Q. Please state in what way the presence of United States troops affected the elec- tion ? — A. The impression prevailed that the National Governinent backed the Repub- lican party in South Carolina. Q. With whom did this impression prevail ? — A. With all classes. Q. Did the troops in any way interfere with the election, or in any way influence or change votes ? If so, state how, and the means used. — A. They didn't interfere in any way, nor did they change votes, unless by their presence. Q. How did the coming of the troops discourage the Democrats? — A. Only by en- couraging the Republicans to vote solidly. Q. Do yOii mean to Say, when you say that the Democrats were discouraged, that they did not poll their full strength in this county? — A. Can't say that, as I can't say what the full vote was ; I mean by being discouraged that they would have polled a heavier vote if the troops had not been here. Q. How many votes would they have polled if the troops had not been here? — A. I don't know, sir. Q. How many did they poll ? — A. I don't know, sir. Q. If you don't know how many they polled, or how many they would have polled, how can you say but for the troops they would have polled more ? — A. They were in hopes to poll more. Q. When you say that the coming of the troops encouraged Republicans, do you mean I o say that it gave them the assurance of voting as they pleased, or what do you mean ? — A. I have answered the question, Q. Did the coming of the troops, in your opinion, do more with the Republicans than assuring them of a free ballot? — A. I think it did. Q. What more? — A. They massed a considerable quantity of arms near the ballot- box, in the jail here, which they would not have attempted if the troops had not been here. Q. 1 understand you, then, to say that the placing of these gUns in the jail was from the intlueuoe of the troops upon colored voters? — A. I have answered the question. Q. Is it not a fact that about the time polls closed the Democrats called upon the troops to guard those arms in jail, and they did so ? — A. I cannot say that that is a fact ; I communicated this fact to Lieutenant Deams, both in person and by Captain Earle, the supervisor at the poll (ou the part of the Democrats as I aui informed). Q. How was the coming of the troops generally considered? — A. It was considered as indorsing the State government and backing it. Q. Did you not go with the Republicans to the drst Republican Timmonsville meet- ing? — A. I went with J. A. Smith and no crowd at all. A. C. Spaiu, having been called as a witness for the contestant, after being duly sworn, testified as follows, to wit (Record, p. 714) : Am a resident of the town of Darling, and was present the 7th of November, 1876. Question. What was your prof -.ssion ? — Answer. A lawyer. Q. Can you speak as to the eliect of the introduction of the United States troops into the canvass of Darlington County f — A. The introduction of troops into the State of South Carolina produt'cd a very marked effect in the county of Darlington before any troops were ever heard of in Darlington County. The governor of South Carolina had issued a proclamation full of slandi-r of the Democrats, so far as Darlington County was concerned; upon that proclamation the President of the United States acted, on the absumption that the Democrats, with arms in their hands, were using their organ- ization and arms to force the negroes to vote the Democratic ticket. Based upon this slander the military force of the United States were, on the call of the governor, sent by the President of the United States into South Carolina, the result being a wide- spread impression that the troops were intended to influence the election directly by sustaining one party (the Repul)lioaa), and in acting antagonism to the other (the Democratic). The ignorant colored voter adopted the view of the governor and Presi- dent, and acted on it. (This answer is bbjecti d to, as being matter of opinion, and as interpreting the proclaraations of the President and the governor, which are alr< ady in the case.) 264 DIGEST OF ELECTION CASES. Q. In your opinion were there any circumstances which ^^'arranted the introduction of United States forces?— A. There were no lircurnstauces in the county of Darling- ton warranting the introduction of the troops. The circumstances upon which the troops were introduced were created by the governor himself; they did not exist in fact. (Objected to as matter of opinion, and as not being in rebuttal.) Q. But for tbe iuteiference of the State and Federal executives, is it or not your belief 1 hat the Democrats would have carried this county? (Oljiected to, as calling for opinion.) A. Before the moral and physical influence of the State and Federal Government vrere brought to bear upon the election, I did entertain an opinion that the chance to carry Darliugtou Conuly for the Democrats was a fair one. I never was as sanguine about it as others. After these jirociamations and the introduction of the troops, I noticed a very wiile chmige in the opinions and conduct of the colored people, and they became intensely antagonistic in their feelings and conduct to the whites. I heard from a number of colored persons, men and women, that President Grant had taken sides with them, and I have heard them say, in conversations that I have had -with -them, that they could not vote against the radical ticket. Q. W. Dargan, having been called as a witness for the contestant, after being duly sworn, testified as follows, to wit (Eecord, p. 729) : Question. Are you a resident of Darlington County, and were you present at the general election of November 7, 1876? — Answer. I am, and was. Q. Your occupation ? — A. Lawyer. Q. What was the state of feeling between Ihe two political parties here early in the campaign ? — A. No liitteruess in the early part of the contest. Q. What was the state of feeling immediately preceding the election? — A. Very bitter. Q. Can you account for this?— A. It was the natural result of the prolongation of the contest, aggravated by the proclamations of Governor Chamberlain and President Grant. Q. In your judgment, what effect had these proclamations, and the threatened and actual introduciion of troops into the State, up(m the two political parties? — A. The loss of thousands of votes to the Democracy. Q. In your judgment, but for those measures, which party would have carried this county ? — A. The Democratic party, by several hundred votes. Q. What was the purpose of the Democratic organizations in this county ?^ A. De- fensive, so far as I know, auo purely political. Q. Were they military organizations? — A. They were not. Q. Were yon or not an officer of the club at this place? — A. I was. Q. What has al ways been your position iu politics? — A. Always been conservative. I was a Chamberlain man up to the time of General Hampton's nomination. I was opposed to General Hampton's nomination. Q. Have not the Republicans of this connty sought to put you in nomination for of3ice?^A. I have been approached by Republicans of some prominence on various occasious and asked to allow my name to be used for office. W. P. Gee, having been called as a witness for the contestant, after being duly sworn, testified as follows, to wit (Record, p. 734): Question. Are you a resident of Darlington County, and were you present on the 7th of November, 1876?— Answer. Yes; lam, and was at and voted at the Florence , precinct. Q. You live in the Ebenezer neighborhood and are by occupation a planter? — A.. I do, and am. Q. Did the Ebenezer Democratic club ever drill with arms? — A. They did not. Q. Do you kuow anything of arms being sent to the colored Republicans at Eben- ezer preceding the election? — A. Yes, sir; I know that they had them; I saw them with them; tliey were breech-loading rifles; they said they were State arms. Q. Had they ammunition ? — A. They had acoou torments and cartridge-boxes, and said they had ammunition. Q. Had they had these arms long before the t lection ? — A. It was a short time before I saw them. Q. Did they have them after the proclamations of the governor and President t — A. They slill had them. (To all of the above questions and answers relating to arms or ammunition, con- testee's counsel objects: 1st, because it is not in reply; wd, it is irrelevant to any as- pect of the case; 3d, as it appeals iu the answers, the whole matter testified to is a matter of hearsay only.) • Q. After these proclamations, and after the introduction of troops into the State, RICHARDSON VS. RAINEY. 265 did you observe any change in the colored voters ? — A. I did not until thej' came here; then I did. (Object to question and answer as cumulative and not in reply.) Q. In your judgment, what efleot had the proclamation and troops upon the colored voters? — A. Those that wouldn't vote for us manifested a spirit of not voting either way, l)ut after the troops came here they said they would vote the Republic m ticket. Q. Then you thinkthat their presence hurt the Democrats in the election?— A. Yes, eir. Q. If United States troojjs had not been iirst threatened and then introduced into the State and county, judging from all you saw and heard among the colored voters during the early stages of the campaign, what, in your judgment, would have been the result of the canvass in Sumter County? Would the election have gono Demo- cratic or Republican ?— A. I can't say for the county, as I was away from home very little during tliecampaign, but I am sure a great many more colored men would have voted the Democratic ticket here at Bishopville, had it not beeu for the introduction of United States troops into the State and county. Q. State the facts on which you base this judgment. — A. Before the troops were in- troduced into Sumter County, numbers of tlie colored people expressed a des re and ■willingness to vote the Democratic ticket with the white people; but after the United States troops came they ceased all communication with the whites, submitted them- selves entirely to the dictation and control of their leaders, and appeared to consider the presence of the troops here as an indication of the active support of the Repub- lican party by the United States Government, and the reason why they must vote the Republican ticket. T. D. Poxwortb (Record, p. 685): Q. Was there any threats or int imidation used by Republicans .igainst their own color during the campaign? If so, state all youknow about this. — A. Yes, there were threats. I did not hear any threats, but several of the colored men told me duiiug the cam- paign, before the eleetinn, that they were afraid for their lives and property if they voted the Democratic ticket. They said they were threatened so by the colored peo- ple in the neighborhood. Several of the colored voters told me that they wanted to go with the Democrats and would vote the Democratic ticket, butthey were afraid 'for their lives and property. Q. If United States troops had not been first threatened and then actually intro- duced into the State and county, what would have beeu, in your judgmeut, the result of the canvass in Sumter County ? — A. It would have beenstronger for the Democrats. I think the county would have gone Republican. J. W. Stuckey (Record, p. 672) : Q. If United States troops had not been first threatened, and then introduced into the State and county, judging from all you saw and heard among the colored voters during the early stages of the campaign, what, in your judgment, would have been the result of the canvass in Sumter County t Would the election have gone Democratic or Republican? — A. My judgment and belief is that if the United States troops had not been sent to the State and county the election would have gone Democratic. Q. State the facts upon which you base this judgment. — A. Before the troops were sent into this county, numbers of colored voters expressed a desire and intention to vote the Democratic ticket with the white people, but after the United States troops came they changed their intfutious, appearing to iDe influenced by the impression that the troops were seut'here to see that they did vote the Republican ticket. M. E. McDonald (Record p. 667): Question. What is your age, and where did you live during the campaign? — Answer. Shiloh Township, Sumter County ; age thirty-four. Q. Where did you vote on 7th November last? — A. At Lynchburg. Q. Did.you see John H. Legare, United States deputy marshal, that day ? — A. I did. Q. Were any troops stationed at Lynchburg on that day? — A. Yes ; about 150 yards from the polls. Q. Did John H. Legare, United States d puty marshal, say to you or within your hearing, that those troops were subject to his orders? — A. He was reading a paper, which he said was United States law of elections. He said the campaign was over; that all we could do now was to offer a man a ticket; if wo went any further we would render ourselves liable. "Those United States troops yonder are sent here to arrest any man that I will point out." He said he did not want to arrest any one, but was sorry he would have it to do. Said there would be fifty arrests at Bishopville ; that the man who had been sent there was a perfect tyrant. Q. Was there not, from United States deputy marshal's conduct and threats of what he would do with the troops, a wide-spread intimidation among the democratic vo- 266 DIGEST OF ELECTION CASES. ters; and are yoii not satisfied that many votes were lost to the democrats at Lynch-' burg precinct by reason of this conduct of Legare's? — A. Yes, I am; to both. J. T. Mcintosh (Eecord, p. — ) : Question. What is your age ; where were you during the campaign ? — Answer. I am twenty-six; was in Lynchburg Township, Sumter County. Q. Were you at Lynchburg poll on 7th November last ? — A. Yes. Q. Did you see United States Deputy Marshal John H. Legare about the polls that day?— A. I did. Q. What did he say ?— A. J heard him say that the United States troops were subject to his orders, and would arrest any one he ordered to be arrested. Q. Were you afraid, along with the other people, to electioneer?— A. Yes. J. M. Sanders (Eecord, p. 663) : Question. What is your age, and where did yon live during the campaign ?— Answer. I am fifty-five; Lynchburg Township, Sumter County. Q. Did you hear J. S. Richardson speak at Lynchburg during the campaign ?— A. Yes; tvs'ice, I think ; once certainly. Q. Did he advocate force or violence as a means of carrying the election? — A. No; he used very strong arguments that if the colored Republicans would go with the Democrats we would have a better government. Q. Where were you on day of election ? — A. I was here in Lynchburg during the latter part of the day. Q. Did you hear of J. H. Legare, deputy United States marshal; andif so, what? — A. I heard that he v.as taking down the names of many persons, and it was supposed that they would be carried to Charleston. Q. What -were the charges against the parties? — A. Those who took an active part in electioneering were to be put on the list; also for alleged acts of intimidation. It was a prevailing rumor. Many of my friends warned me to "look sharp." ^ Q. Such were your fears, engendered by these rumors, that you were very cautious in electioneering; was it not so? — A. I came here to exercise my privilege its a free citizen of speaking to the people iu the mildest and gentlest manner to induce them to vote the Democratic ticlcet ; but I at once abandoned all idea of electioneering, and kept out of Legare's way. Q. Did you hear that United States troops wer.' under Legare's orders ? — A. I thought so; I was confident of it. Q.' How fax were the troops from the polls?— A. About two hundred yards or less, and in view outside of buiklings, I suppose. Q. Do you know anything of intimidation of blacks by blacks? — A. Cannot give in- stances, .but I am satisfied that many colored persons who desired to vote the Demo- cratic ticket were intimidated by tiieir colored neighbors. A. H. Frierson (Record, p. 661): Question. What is your age?— Answer. Fifty-six. Q. Where did you live during the election? — A. Lynchburg Township, Sumter County. Q. Where did you vote? — A. At Lynchburg. Q. Judging from wliai, you saw of the conduct of colored voters before the intro- duction of the troops and after their introduction, do you or do you not think that the call for an introduction of troops had a decided effect upon the voters ? — A. I thinkit had. Q. How ? — A. I think it prevented some of the colored voters from voting the Dem- ocratic ticket. It had been reported among the colored people that if they voted the Democratic ticket they would be arrested by the troops. Q. Do you know of any blacks iutimidatiug others from voting the Democratic ticket ? — A. Not in my personal oJi.-ervation, but to the best of my knowledge and be- lief, there was a wide-spread intimidation of blacks by blacks. Q. J. H. Legare testified iu his examination for Raiuey that the troops were a half mile off and not iu sight ; is this true or false ? — A. It is false. They were fully in sight and within 200 yards of the polls. Q. J. H. Legare says that ho did not say to any one on the day of the election at Lynchburg' tliat the ti-oops stationed here were subject to his orders and would arrest whoever he directed arrested. Do you know this to be false? — A. I know it to be false. Q. Did Ijegare speak to you on electidu-day on that point? — A. Yes. He said those troops (pointing to the tents which were in -iight) are subject to my order; exposed his badge as United States deputy marshal ; said ho was deputy marshal, to satisfy me that he had authority over the troops. Q. Did Legare electioneer on that day ? — A. I do not think he did. RICHARDSON VS. RAINEX. 267 Q. Did he say anytMng to prevent electioneering ? — A. He said the canvass closed yesterday at 6 o'clock, and there should be no more electioneering. Q. Did not the statements of Legare leave the impression on your jgjind that elec- tioneering on that day veas a violation of lavr of the United States ?— A. Yes ; and that we were liable to bo arrested for it, and that he had the authority. Q. Were you not yourself so intimidated by the conduct and statements of J. H. Legare as to deter yon from taking an active part in electioneering that day ? — A. Yes. Q. Were not the white people generally intimidated from the same cause ? — A. Yes ; several expressed themselves to me in that way. Q. Did Legare take the same painsto stop colored Republicans from electioneer- ing?— a. No. Q. Were the negroes verj' active? — A. They were. I have seen as many as three after one, electioneering. E. Witberspoon (Eecord, p. 655) : Q. What is your opinion of the eft'ect of the introducing the troops ? — A. I think it went against the Democratic party. Q. Why ? — A. I think it made many vote the Republican ticket who would not have done so, or would have staid at home. Q. Do you think the Republicans could have carried this county without the intro- duction of United States troops into the State V — A. 1 do not. Q. Do you know any iustanoes of colored Democrats being intimidated by colored Republicans? — A. No ; not in my personal obsorvaiion. Q. To your best knowledge aud belief, was there or not a wide-spread intimidation by colored Republicans of men of the same color who wished to vote the Democratic ticket ? — A. There was. J. A. Mills (Record, p. 656) : Q. What was the effect of the introduction of United States troops here upon the election? — A. It was certainly very deuimental to the Democratic cause. Q. Had it not a biUl-dozing effect upon the colored voters? — A. It certainly kept them in the Republican ranks, and prevented them from joining the Demociats. Q. To yjjur best knowledge and belief, was there or not a wide-spread intimiflation by colored Republicans of colored men who wished to vote the Democratic ticket ? — A. There was. One colored voter told me he would join the Democrats if he was not afraid. J. H. Wilson (Record, i). 654) : Q. What do you think of the effect of introducing United States troops ? — A. I think it was detrimental to the Democrats. One colored man asked me if he would be allowed to vote the Democrat ic ticket since the United States troops had arrived. Said he had been told by other colored men that they would not be allowed to vote the iOemocratic ticket. Q. What effect did the introduction of United States troops have upon the election, in this county ? — A. I think it likely if they had not come the Democrats would have carried it. Q. To your best knowledge and belief, was there or was there not a wide-spreadin- timidation of colored voters? — A. There was. J. H. Cooper (Record, p. 651): , Q. Have you not reason to believe that there was wide-spread intimidation? — A. I believe that there was. I was told (objection by contestee) by a colored man that he would vote the Demoora:ic ticket, but feared that the colored people would double- team on him and beat him to death. Q. Were there other evidences satisfactory to your mind? — A. There were. Q. Do you know if any United States troops were introduced into this county during the election ? — A. Yes ; saw them at Snmter. Q. Where were they stationed? — A. At Snmter Court-House. Q. Is that one of the largest voting-precincts in the county? — A. It is. Q. What is yonr opinion of the effect upon the colored voters of the introduction of United States troops into the county during the campaign ? (01)jection by contestee.) A. I think hundreds voted the Republican ticket who would have voted the Demo- cratic ticket, or would not have voted at all. Q. Have you any idea that the county could have been carried by the Republicans without the use of United States troops ? — A. My opinion is it would have gone Demo- cratic. Q. Why do you say so? — A. I judge from what has been told me by colored men. 268 DIGEST OP ELECTION CASES. At least two of them told me that the troops were sent here to compel the colored people to TOte the Eepiiblicaa ticket. - J. A. Maj'es (Record, p. 647) : Q. From your personal observation, what effect did the presence of United States troops have in the comity upon the voters? — A. Not being in the part of the coanty ■where troops were stationed, I know nothing of my own personal observation. Q. What is your opinion as to the effect upon the colored voters of the belief that United States troops were in the county? (OLijectedto.) A. Think it caused a large portion of Eepublioan voters to think that United States troops were brought here for the purpose of compelling the Eepublioau voters to vote against tlie Democrats. This was and still is my opinion. Q. Do you believe that the presence of United Status troops had a bull-dozing effect upon the Republican voters? (Objection by coatestee.) A. Yes; I think it did. Q. The alleged reason of Governor Chamberlain, in his proclamation calling for troops, do J on believe to be the real reason? (Objection by contestee.) A. I no not. ^ Q. What was, in your opinion, the real object? (Oli.jection by contestee.) A. I think the real object was to keep the Eepublican voters in line, and to prevent them irom voting the Democratic ticket. Q. Was or was ituot done to bull-doze colored voters ? — A. That was my impression. Governor Chamberlain, seeing that the Democrats were thoroughly organized, had troops brought into the State to counteract that. W. J. Rees (Record, p. 636): Q. You state that had not United States troops been introduced into Sumter County; more colored people would have voted the Democratic ticket; why so? — A. I think the colored people had begun to show a disposition to listen to Democratic speakers, and come out to their meetings ; and, as wnll as I can recollect, they stopped coming to Democratic meetings after the troops arrived. Only those who were membirs of the Democratic clubs came ont after the troops came. Q. You state that if any difficulty should arise, the troops were here to help the Eepublicans; what do yon mean by that? — A. T was told by a colored Eepublican that he had been told by his le.iders that he would not be allowed to vote, and that the troops were here for the purpose of seeing that they would be allowed to vote. John H. Burgess (Record, p. 632): Q. How did the appearance of troops here have the effect of making the colored Republicans believe that the United States Government wished them to vote the Ee- publican ticket? — A. Before the troops came here I think the colored people were inclined to listen to us, but after the arrival of the troops their behavior changed. Q. Did the troops interfere to prevent the colored people from listening to you? — A. They did not directly, except through tlie inflnence of their presence here. Q. How did their presence here interfere ? — A. I believe that they were told that the troops were sent here for the purpose of keeping up the Republican ranks. Q. From all yon saw and heard duringthe campaign, what, in yourjudgment, would have been the'result of the election in Sumter County had the United States troops not have been introduced into the State and into the county ? — A. I think the Demo- cratic candidates would have received very many more votes than they did receive. Q. Give the reason on which you found your judgment? — A. In my opinion the ap- pearance of troops here had the effect of making the colored Repnblioans believe that the United States Government wished them to vote the Repablican ticket. But your committee can cumber this record with no further extracts , from the testimony on this point. Many other witnesses testified sub- stantially as those whose evidence is cited. There cannot remain a doubt in the impartial mind that the sending of the troops of the United States inlto South Carolina and the uses made of their presence did produce a marked and controlling effect upon the resnlt of the election, amply suf- ficient of itself to justify your committee in declaring the election null and void. But even had no effect been proven, we are not prepared to say but that their very presence at the polling-places, the mere fact of their being RICHARHSbN VS. RAINEY. 269 sent, without proof of effect, would of itself be sufBcientto set aside and annul the election. Our English ancestors, from whom our laws and ideas of constitutional freedom are derived, have been wisely jealous of the slightest tampering or interference with an election by the Govern; menl, and especially through its armed forces. Over one hundred years ago an English statute declared the will of Englishmen on this subject as follows : Be it enacted l)y the King's most excellent Majesty, hy and with the advice and consent of the Lords, spiritual and temporal, and Commons in Parliament assemhled, and iy the authority of the same. That whea and as often as any election of any peer or peers to represent the peers of Scotland in Parliament, or any niemhei or members to serve in Parliament, shall be appointed to be made, the Secretary at War for the time being, or in case there shall be no Secretary at War, then such person who shall officiate in the place of the Secretary at War, shall, and is hereby required, at some convenient time before the day appointed for snch election, to issue and send forth proper orders, in writing, for the rcnioval of every such regiment, troop, or company, or other niimb.r of soldii-rs as shall be quartered or billeted in any such city, bor- ough, town, or place where such election shall be appointed to be made, out of every such city, borough, town, or place, one day at the least before the day appointed for such election, to the distance of two or more miles from such city, borough, town, or place, aforesaid, until one day at the least after the poll to be taken at such election shall be ended and the poll-books closed. It is saddening to the political student to read this statute and then reflect that one hundred years later a Government which boasts its free- dom the most enlarged and enlightened that men have ever enjoyed, should send troops into the very presence of the voters to overawe and control an election. And another, the greatest of law-writers, perhaps, declares : And as it is essential to the very being of Parliament that elections should be ab- solutely free, therefore all undue influences upon the electors are illegal and strongly prohibited. For Mr. Locke ranks it among those breaches of trust in the executive magistrate whioli, according to his notions, amounts to a dissolution of the Govern- ment, "if he employs the force, treasure, and offices of the society to corrupt the repre- sentatives or openly to pre-engage the electors and preBcribo what manner of persons shall be chosen. For thus to regulate candidates and electors and new-model the ■ways of elections, what is it, " says he, " but to out up the Government by the roots and poison the very fountain of public security ? " As soon, therefore, as the time and place of election, either in counties or boroughs, are fixed, all soldiers quartered in the place are to remove, at least one day before the election, to the distance of two n i'es or more, and not to return till one day after the poll is ended. (Blackstone's Commen- taries, vol. 1, p. 177.) And this has been the underlying doctrine of all English decisions n cases of .interference with elections. At an election held for member of Parliament for Westminster, over one hundred and thirty years ago, by order of three magistrates, a body of English troops were marched up and halted in the church -yard of St. Paul, Govent Garden, very near the polls, where the balloting was proceeding. Upon being informed of this fact by the Speaker, the House of Commons passed unanimously the following resolution : That the preserroe of a regular body of armed soldiers at an election of members to serve in Parliament is a high infringement of the liberties of the sub.iect, a manifest violati marched up to where wo had our meeting. One man had twelve pistols. After the Democrats got near our stand tb.ey formed a semicircle. A good many commenced asking questions, interrupting the speaker. At that time B. F. Whittemore got upon the stand, and he was insulted. Good many asked him, ' ' Hog, where is that forty-four hundred dollars that you grabbed from this county ? " Whittemore did not reply, and I saw Mr. Hennegan point a rifle at him, and Pawley told him not to shoot him. Hen- negan replied that wo did not come down to shoot. I stepped off a little piece, and stood near the man who had the twelve pistols, who said, "I've lost the best chance I ever had to kill the damned hog Whittemore." About that time the chairman an- nounced the meeting adjourned, and said that any one who wished to stay to hear Mr. Richardson could do so. I Was about the last to leave for Darlington. A few of the Bepublioans staid at the stand, but the greater portion of the Republicans left, owing to the fear of being shot down. Q. The Democrats that were armed with shot-guns, &o., how were they dressed? — A. They had not any uniforms that time. This meeting was September 23, 1876. Q. Did you see any riding by men in uniform during the campaign ? — A. I seen about 3,100 mounted men, in red shirts, with pistols around them, in the town of Darlington, on Hampton's day, the pistols being; buckled on the outside. I don't mean to say that all were uniformed red, but had some kind of a uniform. I was at the stand when General Hampton spoke. While Mr. Richardson, of Sumter, was speaking, a report came to the stand that the colored people and the rifle-clubs were fighting down town. I saw at that time the rifle-clubs formed a circle around the stand, got on their horses, and many of them got guns from buggies; came to town, saying tliat we are ready for anything ; among the men coming from the stand were Preacher Hart. ■ When they came down the marshal had Sidney Kelly, a white Democrat, put in the guard- house for shooting Furman Brown. When they came, a company of cavalry from the stand, rode up in front of the guard-house, cooked their guns, and demanded the pris- oner. The prisoner jumped on a horse behind one of the men and went to the Hamp- ton stand. On the day of election I was at Lydia, and nearly every whtte man come RICHARDSON VS. RAINEY. 281 to Tote was dressed in a red shirt, red baad on his hat, and a great ma,ny witli pistols buckled on the outside ; and a man with name of Stephan Woodruff drew and cocked his pistol on me ; he was forcing two or three colored men up to the polls to vote, and I remarked to leave the men untrammeled, they could vote as they pleased and get their tickets from whom they pleased. He cursed me, saying he would blow out my birai^s — ''these men are living on toy plantation." I was one of the supervisors at that poll. Sipieon Perry, another Democrat, brought four colored men to the polls, and marked their tickets in order to find out from the Democratic managers whether these men voted the Democratic ticket. A colored man came up to vote at the poll, and asked for a Republican ticket, and Sydney Kelly told him, " Here is a Democratic ticket" ; he refused to take it, and a Republican came up with Republican tickets in his hands and offered one to ihis voter, which he took and voted. After leaving the box, the same man who offered him the Democratic ticket asked hin( who he voted for, and he said, "Of course I voted foi: Chamberlain a,nd Hayes," and Sydney Kelly struck him in the mouth. When the counting of the votes began, 0. t). Lee exhibited his list he had of colored voters in order to find out how they voted by comparing his list with the marked tickets given colored people to vote by Democrats. SimeonPerry said " Four damn niggers deceived me, for they did not vote the tickets I marked for them." He then said, " They have lost their best friend by telling me a lie." Q. On the 4th day of November did you see the TimmousvUle rifle-club come into Darlington? — A. I did see them come in, cheering', yelling ; one man had a gun strapped, across his back ; saw another one in a wagon j all members were dressed in red shirts;, nearly all nad pistols strapped around their waists on the outside, and the one in front had the gun strapped across his shoulder. I was standing in the post-ofSce door look- ing on, and one of them cursed me for a' damned Republican son of a hitch. I had not said one word. I saw a wagon in the rear of the procession covered with fodder, said to contain guns; this was the same wagon had the gun exposed with a bayonet fixed; and the same wagon followed the procession on their homeward march, with the fod- der over it. Alfred Smith, sworu, continued testifying of a meeting held jStovem- ber 4, 1876 : Q. Can you specify any other instances of show of violence except the ones you have already stated ? — A. At the second meeting in Timmousville we met rifle-clubs and men on horseback with rifles strapped around their backs coming to Darlington ; when we got on the other side, six or seven miles from Darlington, we met those men. They cui'sed Whittemore and Sam Keith. Mr. Morris, the leader, came up and apologized by saying that he did not wish for his men to insnlt anybody. On arriving in Tim- nionsville we found a stand erected. An hour afterward the speaking began, and we did not have any trouble during the meeting at all ; had a torchlight procession and started for home; and just coming out of Timmonsville met the same men, who stopped in the road to prevent us from coming out, and drew their guns and pistols and had on red shirts. I heard a good many of them say they intended to have Hampton and reform, and not a negro should rent a piece of their land. We had, in order to avoid a collision, to take the ditch. Captain Whipper, in charge of the torchlight procession, then requested that they either give away or move, and they would not do either. We went across the ditch over in the woods, and then the rod- shirt men went on home without any trouble. ^ Q. You know that a large Democratic meeting was held at Darlington tliat day, and that distinguished speakers were to address the meeting? — A. I do not know, and did not hear ; we met them going to Darlington, and on our way retnmiug. Q. How many men did you meet that morning and in the ovening wearing red shirts?— A. About 200 or 300. Q. Can you specify any other show of violence except the ones mentioned? — A. I can't name any others just now. Q. You say there were about 400 or 500 Democrats there that day ; how many Re- publicans were there on that day ? — A. Aljout 200 or 300 were present. Q. How many guns did you see in the party you met returning from Timmousville to Darlington the second time, at Timmonsville? — A. About 35 of the party had im- proved guns and repeaters. Q. How many mounted men went up to the Republican stand in the evening? — A. About 400 or 500, of which 200 were on horseback. Q. Did not these men simply ride up, and ride up to the opposite side of the stand from the militia yon spoke of? — A. They formed a half circle to the side of the militia, the head of the horses to the stand. Q. Did you hear any of these men make any interruption except a reiinest to be heard ?— A. They did. Q. What *as it?— A. I heard a Democrat ask what I stated already in my examina- tion-in-chief. Q. Who made use of that remark to Whittemore ? — A. I don't know. 282 DIGEST OP ELECTION CASES. Q You say Mr. Oliver had twelve pistols ; hovr. did you count them ? — A. The han- dles were sticking out of the mouth of the bag. S. J. Keith sworn (page 345) : Q. On the 4th day of November did not the Republicans have another mass meeting at Timmonsville ?— A. We did ; it was the last meeting we had ; the Democrats also had one at the court-house. While going to Timmonsville we met three clubs on horseback, -with red and blue shirts, pistols on the outside of their shirts, and rifles across their backs; before we got to Timmonsville we met another club. I had a wagon, and some of the speakers were with me, Whittemore ; and as they were pass- ing us, one man with the name of Atkinson hallooed out three cheers for Whittemore, the damned old son of a bitch; they cursed every Republican, and would get into a fuss right there, if we had not been quiet. They yelled and fussed a great deal. We went on to Timmonsville ; had a very quiet party, because the Democrats were not there, and the presence of the soldiers had a great deal to do in keeping the peace. We re- mained to have> torchlight procession, and as we were coming near Eagsdale's store, a lot of white men came to my wagon, where Mr. Whittemore was, and cursed him shamefully, and by the time we got into the road leading to Darlington we heard the Democratic band returning from Darlington. We halted, the road being very narrow, that they might go on and pass, for fear of a collision and to avoid trouble ; they in- sisted upon turning the street we were on, and make us give way, and when we would not give, way they went on; they turned out of the direct way; after they passed we came home. We had no other trouble except at the places stated. Jourdan Lang (colored) sworn (page 326) : (The meeting was held first part of September.) Question. State what occurred at Timmousville. — Answer. I was at the meeting at Timmonsville. A platform was erected by Republicans and Democrats. After the Republicans from Darlington got there they split, because it was reported that there would be a fuss, a fight on that day, or confusion, in case that the Republicans refused to have a joint discussion. The Republicans withdrew from the stand, gave it up to the Democrats, and removed to about a half of a mile from there. After we had re- moved, a committee came from the Democrats requesting a' joint discussion, which was refused. A committee of five Democrats were then sent to listen at the discussion of the Republicans. 1 was chairman of the Republican meeting after they withdrew from their former place of meeting. After that they sent a committee to ask if they all could come to attend our meeting ; . this was also granted. As chairman of the meet- ing I know that this request was granted. They came down mounted ; about four or five hundred, moimted and well armed. Our meeting adjourned about half of an hour after they got there. Mr. Richardson came with them. I was req nested to induce Mr. Richardson to speak, but declined, not having any time, having long ways to go ; but a considerable crowd remained; but not long enough for Mr. Richardson to speak, who did not speak. It is most respectfully submitted the evidence establishes General Hampton's supporters had determined from the day of liis nomination to elect him — by force and extreme violence, if need be. The colored people had been lately enfranchised, and were most jeal- ous lest they might lose their liberty, and were watchful of every act on the part of their late masters. It is asserted in the majority report the policy of the Hampton can- vass was conciliatory, and resolutions of conventions and public speeches are referred to as proof of the fact. "We have examined the record with the greatest care for any explana- tion from any stand-point of the armed marauding we have described consistent with a conciliatory policy we feel justified in characterizing as an intimidation policy, coupled with the violence the evidence de- scribes. The Democratic committee called upon the supporters of General Hampton to a&opt the following pledges : SUMTBK, S. C, October 25, 1876. The Democratic executive committee recommend the adoption of the following pledge : J. D. BLANDIN6, Chairman Democratic Executive Committee. A. W. SuDBR, Secretary. RICHARDSON VS. RAINEY. 283 The State of South Cakolisa : We, the undersigned, citizens of Snmter County, hereby pledge ourselves (each for, himself) that we will not assist or extend any favor to any person of either race or color who shall vote for the Republican State or county ticket at the election on 7th November next ; and thit we will, in all business transactions, give the preference to such persons as shall vot« the Democratic State and county ticket at said election. Exhibit A. Darlington County, Township : We hereby pledge ourselves to each other that we will not rent or let lands or houses, nor advance supplies on credit, to any person who shall vote the Radical ticket at tbe election to be held on the 7th of November next ; nor will we employ as a mechanic any person who shall so vote at said election, or keep in his employment those who do so vote ; nor will we employ in any capacity such persons as may be designated by the executive committee of the Democratic party for this county, in a Kst to be furnished by said committee. This pledge to be of force until January 1, 1878. And of -which General Hampton said, mildly, " that policy has not my approbation.'" (P. 249 of Eecord.) He says he knew of " that policy." He does not say he condemned it ; and you fail to find an utterance of his advising otherwise ; and in speaking of the " Eifle Clubs," at p. 248, he says : " As soon as the proclamation was issued I advised all the clubs to disband." The majority report abounds with quotations from the evidence of General Hampton and others, all in sympathy with him, judges and sheriffs, that " all was quiet in South Carolina ; " "there were no disturbances." South Carolina was doubtless quiet ; she endured, or enjoyed, as you please, the quiet of a conquered people, subjected to military rule. She had the peace and order the strong arm of a mili- tary despot may maintain. The colored electors were in the majority, and General Hampton must have their votes divided. Prizing their lately acquired freedom, they naturally regarded this " conciliatory policy" as threatening it. Their late masters, in a time of peace, with arms in their hands, were demand- ing their votes for Hampton. They did not say to them, " Except you do this thing we will kill you ;" that was left for inference. They did say to them, " Except you do this thing we will starve you ; we will not give you shelter for your heads ; we will neither employ you nor rent you land." Any race of men, except one subjected to involuntary servitude for ages, would have been frantic with despair, but these mute " hewers of wood and drawers of water" prepared to again endure the yoke, or at least make terins with the apparent masters. The armed men could intend nothing but their subjugation ; the pledges not to hire them, or rent them land, threatened them with starvation, yet they were not " unanimous for Hampton." In their churches and by their firesides, out of sight of the "armed bands," they grew strong in thought; and it would seem there must have been in this Congressional district twenty or twenty -five black men, either so ignorant as not to view the situation ^' as dangerous to their race", or so debased as to be indifferent if they did, or to have been able to read the future with a prophetic eye, and recognize amid all this disturbance Hampton as their prophet — and of these men their fellows were intolerant ; and the eight hundred pages of evidence disclose that, in a voting population of upwards of 30,000, in 7,500 square miles of territory, twenty colored men had personal altercations, and were threatened with social ostra^cism if they voted the Democratic ticket ; nevertheless, tvere not intimidated thereby. One cow-pen was burned ; one man had a quarrel with his wife, struck her. 284 DIGEST OF ELECTION CASES. and was abandoned by her ; she had left him twice before ; and one man was strack in the face by a woman, armed with an umbrella. (See Eec- ord, p. 87.) Areas of the counties embraced in the first district. Square milea Chesterfield 879 Darlington 873 Georgetown 888 Horry 1,082 Marion 1,219 Marlborough (. 546 Sumter 953 Williamsburg 1,062 Total 7,502 There is nothing in the record to show either social ostracism or fear was preventing the colored voters from supporting Hampton. On the contrary, the " policy " we have described, according to the evidence of G-enerai, Hampton, according to all the witnesses called by the contest- ant, according to the majority report, was "conciliating" them and tiey were promising to support the Democratic candidates until Gov- ernor Chamberlain's proclamation appeared. It is true there were some members of the State militia stiU in pos- session of State arms, but there is nothing in the case evidencing an improper use of them, We submit there is nothing in this case to justify the expulsion of Mr. Kainey upon the score of intimidation or social ostracism. We subjoin a table of the voting population of the first Congressional district, taken from the census of 1875, showing — White voters 14, 147 Colored voters i 20,473 Aggregate 34, 620 Majority colored voters ^ 6, 326 Eainey's (Eepublicau) vote was 18, 103 Richardson's (Democrat) vote was 16, 575 Aggregate 34,678 The vote verifies the census. Eainey's majority was 1,528, showing Eichardson must have received 4,798, nearly one-fifth of the colored vote, demonstrating it was not operated upon, either by fear of violence or flpeial ostracism among themselves, to vote for Mr. Rainey. Vo1e)-s over 21 years of age. Coonties. White. Blaot. Gbeiterfield ... narltiigton G-eor^etown . . . Horry Uarion , Mi arlborbngh . . Sninter WilUamsbnrg . Total..-. 1,543 1,19» 2,362 3,747 643 3,119 1, 696 712 3,081 2,833 1,583 1,925 1,827 4,362 1,412 2,576 14, 147 20, 473 RICHARDSON VS. KAINEY. 285 As to the second point, intimidation by the Federal troops : It is not claimed that the troops coerced, intimidated, or persuaded; that an officer or soldier did or said aught indicating a personal prefer- ence for one side or the other. They were stationed, usually, so far as the evidence discloses, out of sight, and in no case immediately at the polls ; 250 or 400 yards are given as their nearest approach to the polls. An ofiBcer and twenty -nine men were divided between Sumter Court- House and Lynchburgh, places 10 miles apart, in Sumter County. Charles H. Morse (evidence at page 90 of the record) : Q. 14. Where were the United States troops stationed in this county ; nearest to what polls, and how near to the polls ? Were any of the United States troops at or near the polls on the day of the election? — A. A small detachment of United States troops, under Major Kelley, axTived in this town a few days before the election, and went away a few days after the election. They were encamped east of the railroad depot, about half a raile from the polls. They did not appear at or near the polls on the day of the election. Wilder (pages 31, 33) : Q. How many soldiers were there in the county of Sumter ? — A. About iifteen pri- vates and two officers, at Sumter Conrt-House. At Lynchburgh there were one lieuten- ant and about ten men, brought from Timinonsville ; and I heard Mr. Wells say he brought them there ; in all about twenty-nine men. An officer and fifty-six men were in Darlington County. (See evidence as to Tinimonsville.) Culpeper (157,158): Q. When were United States troops sent into the county ? — A. They arrived here on Friday night, November 3, and left about one week after the election ; 56 men in all came.'here ; 25 or 30 remained during the election, several squads having been gent off to Darlington, Florence, and Lynchburgh. Timmousville, Darlington, and Florence are in Darlington County, and the twenty-five or thirty men were divided between those points, or ten miles apart. So far as the record shows, the foregoing discloses the troops in the first Congressional district, comprising the counties of Chesterfield, Marlborough, Darlington, Sumter, Marion, Horry, William sburgh, and (xeorg6town. The Constitution, section 4, article 1, provider, in reference to the election of Eepresentatives to Congress — But Congress may at any time by law make or alter such regulations. The attention of the House has in so marked a manner and so recently, in the Dean-Field case, been called to the legislation upon the subject of Congressional elections as to render quotations from the laws upon that subject hardly necessary ; but see General Statutes : Sec. 5506. Every person who, by any unlawful means, hinders, delays, prevents, or obstructs, or combines and confederates with others to hinder, delay, prevent, or ob- struct, any citizen from doing any act required to be done to qualify him to vote, or from voting, at any election, in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be fined not less than five hundred dollars, or be imprisoned not less than one month nor more than one year, or be punished by both such fine and imprisonment. Sec. 5507. Every person who prevents, hinders, controls, or intimidates another from exercising or in exercising the rights of suffrage, to whom that right is guaranteed by the fifteenth amendment to the Constitution of the United States, by means of bribery or threats of depriving such persim of employment or occupation, or of ejecting such person from a rented house, lands, or other property, or by threats of refusing to renew leases or contracts for labor, or by threats of violence to himself or family, shall be punished as provided in the preceding section. The last clause of section 8 of article 1 of the Constitution gives Con- 286 DIGEST OF ELECTION OASES. gress the power " to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all powers vested by this Constitution in the Government of the United States, or any department or offtcer thereof." The last clause of section 3 of article 2, speaking of the President, says: He shall take care that the laws be faithfully executed. Section 4 of article 4 is : ^ The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion ; and on application of the legislature or of the executive thereof (when the legislature cannot Tje convened) against domestic violence. In pursuance of the foregoing provisions of the Constitution, in pur- suance of the highest law, both to an individual and a government, of self-preservation, Congress has enacted section 5297. Sec. 5297. In case of an insurrection in any State against the government thereof, it shall be lawful for the President, on application of the legislature of such State, or of the executive when the legislature cannot be convened, to call forth such number of the militia of any other State or States, which njay be applied for, as he deems suf- ficient to suppress such insurrection, or, on like application, to employ for the same purposes such part of the land or naval forces of the United States as he deems neces- sary. Sec. 5298. Whenever, by reason of unlawful obstructions, combinations, or assem- blages of persons, or relielliou against the authority of the United States, it shall be- come impracticable, in the judgment of the President, to enforce, by the ordinary course of judicial proceedings, the laws of the United States, within any State or Territory, it shall be lawful for the President to call forth the militia of any or all of the States, and to employ such parts of the laud and naval forces of the United States as he may deem necessary to enforce the faithful execution of the laws of the United States, or to suppress such rebellion in whatever State or Territory thereof the laws of the United States may be forcibly opposed, or the execution thereof forcibly obstructed. Sec. 5299. Whenever insurrection, domestic violence, unlawful combinations, or con- spiracies in any State so obstructs or hinders the execution of the laws thereof, and of the United States, as to deprive any portion or class of the people of such State of any of the rights, privileges, or immunities, or protection named in the Constitution and secured by the laws for the protection of such rights, privileges, or immunities, and the constituted authorities of siich State are unable to protect, or, from any cause, fail in or refuse protection of the people in such rights, such facts shall be deemed- a denial by such State of the equal protection of the laws to which they are entitled under the Constitution of the United States ; and in all such cases, or wheaever any such insur- rection, violence, unlawful combination, or conspiracy, opposes or obstructs the laws of the United States, or the due execution thereof, or imjjedes or obstrucfs the due course of justice under the same, it shall be lawful for the President, and it shall be his duty, to take such measures, by the employment of the militia or the land and / naval forces of the United States, or of either, or by other means, as he may deem necessary, for the suppression of such insurrection, domestic violeuci', or combinations. Sec. 5300. Whenever, iuthe judgment of the President, it becomes necessary to use the military forces under this title, the President shall forthwith, by proclamation, command the insurgents to disperse and retire peaceably to thi-ir respective abodes within a limited time. So question is made but the proper proclamation was made by Cov- ernor Chamberlain, the proper call upon the President, and the proper proclamation issued by the Federal Government. It has not been claimed the legislature of the State of South Caro- lina might have been convened to take appropriate action in reference to the disorders we have referred to. It has not been claimed disorders did not exist. On the contrary, the majority report asserts so great was the terrorism exercised by the majority of the colored people as to pre- vent the exercise of the elective franchise by the minority. Arms are alleged in their hands lor improper uses. That we expressly deny. We have mildly depicted from our stand-point the utter perversion of a free popular government by the Hampton party, a condition of terrorism RICHARDSON VS. RAINEY. 287 and violence without parallel in any land under a constitutional govern- ment. Grant the premises of either report, grant the existence of evidence fairly tending to show the same, the governor of South Carolina was called to act judicially in appealing to the United States Government for aid. The majority report fails to suggest he acted corruptly. Called upon,, the President of the United States had but one duty to perform — assign the forces at his disposal to the police duty of preserving order. The citizen was not to be influenced in the exercise of his personal rights by that police force, and he was to be protected in that exercise. We do not insist the President acted ministerially. He acted judi- cially, and in the exercise of a wise discretion, in the light of the evidence submitted to him. As we have already stated, it is not alleged the soldiers did anything to influence the election, that is, committed any overt act. Located as- aforesaid, it appears they were silent and passive spectators of th& scenes, without expressing preference in the result of the election. And it is claimed these men coerced the colored voters to a support of the Eepublican ticket. We grant their presence emboldened the theretofore despairing black man to dare to exercise a freedman's right and vote his choice. The majority report advises us there was no violence before the troops. ■ came. We grant there was none, because terrorism had stamped out resistance, threatened starvation had crushed the souls of these men,, and when the Federal soldiers appeared upon the scene, and it was un- derstood the rifle-clubs and saber-clubs, while they would valiantly frighten negroes, did not want a conflict with Federal authorities, we assert, these freedmen to a great extent took courage to enjoy their highest privilege and right. The proposition of the majority is, a police force detailed by the Fed- eral authorities, that simply enables the citizen to enjoy his rights, is- JUegal, and renders that enjoyment iUegal and void. The proposition of the majority is, that a community terrorized into a course of involuntary action, or subjugated to the extent of being unable, through fear of violence, to take their lawful part in an election,. if from the presence of troops they are relieved of their apprehension, and exercise their rights as electors, such exercise is illegal and void. Another novel proposition is introduced into this case. Governor Hampton swears, with others, that they were told (the colored men were told) the troops were placed there to make them vote the Eepub- lican ticket, and on this, solely, is based the idea of coercion. It does not appear the colored voters believed it. It does not appear any responsible person told them so. It does not a,ppear, in fact, any considerable number were told thus. It was a rumor that reached the ears of the witnesses. The fact doubtless is they be- lieved the troops were sent there to enable them to vote the Eepublican can ticket if they desired to. But one fact stands out clear in' the case, the colored population was not Operated upon by fear of the soldiers. The fact is manifest the only effect of the troops upon the freedmen was to give them confidence to vote the ticket of their choice. The report discusses the English law in regard to the presence of troops, and fails to discover the dissimilarity of the governments, in the case of the United States, justifies the legislation authorizing the use of troops as a police force even at an election ; in the case of England, calls- for legislation prohibiting such use. 288 DIGEST OF ELECTION CASES. Here the government is of the people, and a free and fair election is an absolute necessity to give a lawful government ; in England the executive branch of the government is, or was at the time of the eii- actment of the law cited, a privileged class, and to the end the people might not be encroached upon by the Crown, we find the rule and the legislation referred to prohibiting the presence of troops. In the judgment of the uiydersigned, the action of the Federal Govern- ment was justified, and incumbent upon it, in stationing the troops as it did in South Carolina ; that nothing in the conduct of the troops, neither did the fact of their being stationed there, influence the electors to vote otherwise than as their judgments and consciences dictated ; but to the contrary, the action of the Federal Government and the presence of the troops enabled the freedmen to participate in the election and vote for the candidates they preferred ; and at this time, removed from the elec- tion, we trust a great political party will not deem it proper to expel from the House a Eepresentative reflecting honor upon his race and creditably representing his constituency for that action on the part of the General Government the imparti^al observer cannot but justify. Inferentially, at least, the report of the majority denies the right of the General Government, upon the call of tlie State, as provided by Federal laws, under any conceivable state of facts, through the aid of the Army as a police force, to protect the elector in his right of fran- chise at a Congressional or electoral election. With that view we have no sympathy. We directly affirm the contrary right. The question has been involved directly in the successful eiforts of the nation to main- tain our nationality from dismemberment, and all the States are now represented here because of the firm establishment of the principle by the highest power to which the contending parties could appeal. The denial of the " authority " here will neither weaken nor disturb the "judgment" which has been " given'' by the people ; and we doubt not, in the future, the Government will protect the citizen in the full en- joyment of his right of suffrage, by whichever party it may be adminis- tered. And we submit it is most unprofitable to enter a useless and feeble protest, which only avails to serve a temporary purpose. The undersigned recommends the passage of the following resolution: Resolved, Joseph H. Rainey was duly elected and is entitled to a seat in the House as the Representative in Congress from the first Congres- sional district in the State of South Carolina. FRANK HISCOCK. FEOST VS. METCALFE. 289 B, GRAHAM FEOST vs. liYNE 8. METCALFE. Thibd Congkessionai, District of Missouki. , Cliarges of illegal voting, and that votes were oast for contestant and not counted, misconduct of the officers of election, and that numerous persons were appointed United States marshals solely as a bribe for their vote for contestee. Held, That it is presumed that the officers of election did their duty, and it would be dangerous to permit the solemn act of sworn officers of the law to be set aside by the testimony in this case ; and it would be still more dangerous after it was known that ten or twenty votes would change the result of an election to permit the officers to recall their proceedings and make a change which would reverse the result of the election. Contestant is entitled to the benefit of votes offered for him, but which were rejected by reason of the voter's name not being on the poll-books, but which was on the registration list. Congress can go behind all returns, but to authorize the House to count a vote four things are r.equisite : First, the person offering to vote must have been a legal voter ; second, he must have offered to vote ; third, it must have been rejected ; and, fourth, it must be shown for whom he intended to vote. As to the use of 728 deputy marshals, the committee cannot make any estimate from conjecture how many voters they changed by their conduct ; nor would it be safe or warranted that the parties alleged to have been bribed would have voted the other way. The House adopted the report February 25, 1879. Peeruaey 25, 1879. — Mr. John T. Habeis, from the Committee of Elections, submitted the following BJEPOBT: Your committee having had under consideration the foregoing case beg leave to submit that by the legal authority of the State of Missouri the vote between these parties stands thus : Metcalfe 8,099 Fiost 8,080 19 giving to the sitting member a majority of 19 votes, to overcome which the contestant claims there should be deducted from contestee the fol- lowing votes : First. Proof of six illegal votes cast for'.Metcalfe by negroes who were not resi- dents of the State of Missouri. ;;:; Second. By proof of two illegal votes cast for Metcalfe by parties not qualified to vote at said election in said district. Third. By proof of twelve votes of duly registered and qualified voters whose votes were legally offered for Mr. Frost, but were placed in an envelope and received but not coniited. Fourth. By proof of a mistake made by the judges and clerks of election precinct No. 63 in their returns, giving to said Metcalfe nine more votes than had actually been cast for him at said poll. H. Mis. 58 19 290 DIGEST, OF ELECTION CASEg. Fifth. By proof of twenty-five more votes being counted at precinct No 77 for said Metcalfe than had actually been thus cast for him. Sixth. By proof that the conduct of judges and United States supervisors and mar- shals at said precinct No. 77, in handling and tampering with the ballots and the tal- lies, tainted the return from that poll with fraud, and rendered the result so uncer- tain that said poll must be wholly rejected. Seventh. By proof of the fact that the United States marshals were appointed and stationed in said third Congressional district to the number of 728. That said mar- shals were wholly unnecessary and were appointed solely for the purpose and in number sufficient to make reasonably certain the election of Metcalfe. Eighth. That the money promised them by the Government was used simply as a bribe for votes for Metcalfe. That many of them were Democrats, who, io obtain the position, were compelled to promise and pledge that they would vote for Lyne S. Metcalfe. Your committee have carefully examined these reasons in the order in which they are stated by contestant. First. They do not regard the proof as suflBcient to show that the six votes in question were not legal voters. It wholly fails to show that the residence of these colored men was not at their place of voting. Ifeither does the evidence show that they voted for contestee. It would be a dangerous doctrine to the right of election to permit the solemn act of the sworn ofBcers of the law to be set aside upon such testimony. It is to be presumed that they did their duty. A majority were of the same politics of the contestant, and the evidence shows they sought to be watchful and careful in the discharge of their duty. It may be, and often is, difficult to determine the home or domicile of a boatman, or one who is constantly engaged in steamboating or on railroads, but as the law contemplates every man has a domicile or residence, it is often only known to the party himself. It is a question of intent, known alone to the party. It is to be presumed the election officers sifted these voters and came to correctconclusions. The evidence is not sufB- cient to show they did not. The next point in order relied on by the contestant is, that twelve legal votes were cast for Frost and not counted. In considering this question we shall not review what has been said in contestant's brief or in contestee's brief in regard to the manner in which the registration lists were reprinted. The evidence shows conclusively that there were mistakes made in the reprinting, and that names were indiscriminately left off of the printed list furnished the judges which were on the orig- inal registration lists. It is not denied that iauy man whose name was on the original registration-list was entitled to vote, notwithstanding the fact his name might have been left off of the reprinted lists. It has been amply shown in the testimony that these omissions were the re- sult of the hurry and confusion of the reprinting. If contestant had proved that any man's "vote was rejected by reason of his name liot be- ing on the poll-books, whose name was on the registration-list, and that his vote was offered for hnn and not counted, then he is entitled to the benefit of it. Tour committee have examined the evidence with great care in re- gard to these twelve votes. It is too voluminous to copy in this report. It is sufficient, therefore, to give the result of their investigation, which is, that the evidence does show that A. li. Hynson and August Lamp- sing were legal voters at precinct 63 ; that they voted for Frost, and that their votes were not counted. In the other cases, to wit, of Dempsy Nash, Colonay, Amend, Welch, Dunn, Carroll, Godde, Kennedy, and Willow, the evidence fails to show that the votes were not counted, or that they were properly registered, or that under the laws of Mis- souri they were entitled to vote. The testimony tends in that direction, but is not of that character, clear and conclusive, which ought to over- PKOST VS. METCALFE. 291 ride the sworn act of the officers of the law, whose duty it was on that day, then and there, to make all those inquiries and form a correct judgment. The law presumes they did. While on this branch of the subject your committee will dispose of the complaint made by contestant that by reason of the errors in copy- ing the registration list he lost many more votes than contestee. To count votes which were never offered at any poll is carrying the doc- trine further than we ever knew it. To authorize this committee to count a vote, four things are requisite : first the person offering to vote must have been a legal voter at the place it offered to vote ; second, he must have offered his vote ; third, it must have been rejected ; and fourth, it must be shown for whom he offered to vote. These requisites do not exist in these cases, therefore your committee will not farther consider them. Fourth. Contestant complains that there was an error against him of 9 votes by the figure 1 being placed in the wrong column on the memorandum kept by the clerk in the counting of the votes. This, error, if error it was, was not discovered for five days after the elec- tion, but that fact would not operate here, as Congress can go be- hind all returns. The real question is, was it an error ? There is no evidence except the paper itself. It is found five days after the election, by a gentleman who kept the paper from which the result was announced, that, in the column second from the right, the figure 1 stands alone. From this it is inferred that it was intended for 1. . All the witnesses testify that they have no recollection on the subject. They only take it to be an error because they find the unit figure in the ten column. As a would not count in the last column, it is suggested to the witnesses that in the hurry of recording the count it might have been deemed by the clerk unnecessary to ad^ it. We are then left to other facts to deter- mine whether this was an error or not. The papers and oiiicers of elec- tion wholly fail to give any explanation except as stated. After the polls were closed and the result ascertained, the duly authorized officers foot up the result, announce it, and make due certification and return thereof to the proper officer. It would be a dangerous precedent, after it were known that ten or twenty votes would change the result of an election, to permit the officers to recall their proceedings and make a change which would reverse the result of the election. But whatever the result would be, if there were manifest error, it ought to be corrected by the officers or the House. The aggregate vote for President at that place was 375 ; for governor, 370 ; for Congress, 371. This corresponding vote for the highest political officers, your committee feel, tends strongly to show that there was no error in the count, and that the certification of the officers of election was correct. Fifth. Contestant claims an error of 25 votes at precinct No. 77, in this, that 25 votes were counted twice for Metcalfe. The only witness on this point is a Mr. Wortman, a deputy United States marshal, who says "twenty five" was called out for Metcalfe and recorded; that it was repeated, "twenty-five" for Metcalfe, and the clerk seemed to be writing ; and Furgerson, who was also a deputy United States marshal, says "twenty-five" was called out twice for Metcalfe, and that when the attention of the clerk was called to it, the latter told the witness to " Shut your mouth ; there is a supervisor here to attend to that"; and Mr. Schwaner said he would attend to that. And they further prove that Dejong, the Democratic clerk, said "If you fellows will keep your months shut we will get along a heap bet- ter," and he added, "Too much confusion here." 292 DIGEST OF ELECTION CASES. When we remember that a majority of the judges of election and clerk ■were Democrats whose integrity has not been questioned, it would be past comprehension to suppose they made a mistake against their polit- ca] friend of twenty-five votes by one dash of the pen when their atten- tion was called to it at the time. The failure of contestant to call these ofQcers of election must be construed ^against him. Dejoug, a Democrat, and the very clerk who kept the tally, in an affidavit on page 65 says when this secoud call of twenty-five was made he asked, " ' Is this the same twenty-five just called by the judge and in confirmation or not f 1 was answered it was the same twenty-five, and in consequence it was not again entered on the tally-sheet by me nor counted a second time." Contestant objects to this affldavit as not being regularly in the case. That may be, but it may serve to give the reason why contestant did not call affiant. The contestant having failed to call Dejong and the other officers of election, the law presumes they would testify to the cor- rectness of their proceedings if they had been called, therefore he is not injured by the affidavit. At this place Metcalfe ran about 25 votes ahead of his ticket, just 25 ahead of the Presidential electors, and 27 ahead of the Eepublicau can- didate for governor, while Mr. Frost ran just 20 behind the Democratic electors, and 25 behind the Democratic candidate for governor. The aggregate vote for President was 926; for governor, 934 ; for Congress, as counted, 931. The testimony tends to show that Mr. Metcalfe ran ahead of his ticket and Mr. Frost behind his. The number of officers to be elected was very great, and the record shows that the aggregate vote for Congress is not as large as the whole vote polled. The poll- books were examined by Mr. Walsh, a witness for contestant, who is asked the question : Is there aiiythiug in those figures [alluding to the vote received by the various can- didates for office] to indicate that 25 votes were counted for Metcalfe twice? Answer. 1 do not see anything here. Taking all the evidence to be true as given, there is nothing in it to prove that 25 votes were counted twice for Metcalfe, and thus invalidate a return made by officers, a majority of whom are of contestant's politi- cal party. Sixth. The contestant asks that the whole poll at JSo. 77 be set aside and discarded, because tlie return was tainted with fraud by handling and tampering with the ballots and tallies. The only evidence on thiii subject is given by the deputy United States marshal, Wortman. The contestant does not call any of the judges or officers conducting the election, a majority of whom were Democrats, to sustain this charge. As before said, the law presumes public officers did their duty. The returns are in due form, and were duly counted. According to the showing of this witness, the falling out of the ballots was purely accidental. Then why not have called some of the officers to })rove these facts if they existed ? The failure to call them raises the presumption that they would not sustain the charge. They do not oc- cupy the position of parties charged with fraud testifying in their own behalf, but they are presumed to be impartial and disinterested, or, if partial, a majority of them are presumed to lean towards contestant, therefore would have been willing to tell the truth in his behalf. To set aside a formal and regular return made by sworn officers of both political parties, upon such evidence, would set a dangerous pre- cedent, and render popular elections but a name and a mockery. FEOST VS. METCALFE. 293 Seventh and eighth, in regard to the appointment of United States marshals, may be treated together. Your committee deprecate the appointment of United States marshals under any pretext.. If they are intended as conservators of the peace, the power of the State is ample for that purpose. If they are in any manner to interfere in the elections, it is clearly a violation of the laws of the States for them to do so. But the law of the United States war- rants the appointment of deputy marshals, and the same mustbarespected until altered or repealed. It does not limit the number. The question in this case is, was the conduct of the marshals such as to invalidate the whole election ? It cannot with any strong reason be urged that this committee shall make an estimate from conjecture how many voters they changed by their conduct. Nor would it be safe or warranted that the parties alleged to have been bribed, would, but for such bribe, have voted the other way. If the conduct of these deputy marshals was such as to pollute the whole vote of the district, then the committee could not sift the good from the bad voters and declare a result, but would be compelled to find there had been no fair expression of the popular will, and that no legal election had been held. The testimony of the witnesses called by the contestant to prove bribery and fraud on the part of those max'shals is very vague and un- satisfactory. Some eight were introduced, who do prove that they were appointed with the promise expressed or implied that they would vote for IVTetcalfe, but five admit they voted for Frost ; two say they voted for Metcalfe, but they preferred him, and were in no way influenced by the office. One did not vote at all. So that the evidence, so far as it goes, tiends to repel the presumption that the 728 deputy marshals were in- fluenced in their votes by reason of their appointpients. To say the least of it, the testimony is not very reliable, coming as it does from men who confess their own abasement and degradation. There is nothing in this evidence that would justify your committee in transferring any votes from Metcalfe to Frost or deducting any from Metcalfe, much less would it justify them in setting aside the whole election. Your committee having carefully examined all the questions raised in this case, can see no reason why the sitting member should be unseated ; therefore they recommend the adoption of the following resolutions, to wit: Resolved, That E. Graham Frost was not elected a member of the Forty-fifth Congress, and is not entitled to a seat in the House of Repre- sentatives from the third Congressional district of Missouri. Resolved, That Lyne S. Metcalfe was elected a member of the Forty- fifth Congress, and is entitled to a seat in the House of Eepresentatives from the third Congressional district of Missouri. JOHN T. HARRIS. JACOB TURNEY. THOS. R. COBB. MILTON A. CANDLER. JERB. N. WILLIAMS. E. JNO. ELLIS. We concur in conclusion. FRANK HISCOCK. JNO. T. WAIT. J. M. THORNBURGH. H. PRICE. FORTY-SIXTH OONQRESS com:m:itth;e on elections. "William M. Springer, of Illinois. Yan H. Manning, of Mississippi. Emory Speer, of Georgia. Walpole G. Colerlck, of Indiana. E. F. Armfield, of North Carolina. Frank E. Beltzhoover, of Pennsylvania. Samuel L. Sawyer, of Missouri. Elijah C. Phister, of Kentucky. J. Warren Keifer, of Ohio. John H. Camp, of New York. William H. Calkins, of Indiana. Walbridge A. Field, of Massachusetts. Edward Overton, jr., of Pennsylvania. James B. Weaver, of Iowa. Alvah A. Clark, of New Jersey. S. M. Ettkr, Clerk. FORTY-SIXTH CONGRESS JOHN M. RRADLEY vs. WILLIAM F. SLBMONS. Second OoNanESSioNAL District of Arkansas. Contestant took some portion of Ms testimony more than forty days after service of oontestee's answer, but within forty days of the date when he commenced taking testimony, when contestant claims the time commenced to run. Held, That the time when contestant may take testimony-in-chief commences to run from the date of service of answer of eontestee upon him. The law furnishes each party ample opportunity for taking testimony if ordinary diligence is used. The result of an election can in no manner be affected by the failure of certain town- ships in the district to hold an election where no reason is assigned and shown for the failure to hold such election. The circulation of false and fraudulent posters a few days before an election announc- ing another person as the candidate of a party for Congress, and intended to de- ceive the voters of that party, and lessen the vote which would otherwise have been cast for contestant is dishonorable, and if the evidence established the com- plicity of eontestee, and its effect upon the voters produced a result different from that which otherwise would have occurred, the election should be set aside and a new one ordered. The House adopted the majority report March 31, 1880. March 8, 1880. — Mr. Sawyer, from the Committee on Elections, sub- mitted the following BEPOBT: The Committee on Elections, to whom was referred the contested-election case of John M. Bradley vs. William F. Siemens, from the second Congres- sional district of Arlmnsas, having had the same under consideration, beg leave to report : The claim of the contestant to the seat occupied by the returned mem- ber is based upon a variety of alleged grounds, many of which are en- tirely unsupported by any testimony whatever. Before commencing the discussion of the merits of the controversy, we deem it proper to express our disapproval of that portion of contestee's answer to contest- ant's notice of contest which indulges in personalities. Ther practice itself is unbecoming the dignity of the House, and we regret the neces- sity has arisen of imposing on the committee the duty of calling atten- tiott to the subject. The Congressional district is composed of twenty counties, in only three of which was testimony taken, viz, in the counties of Jefferson, Chicot, and Hempstead, and at the very threshold of our inquiry we are BRADLEY VS. SLEMONS. 297 met with an objection by the contestee to the consideration of any por- tion of the evidence taken by the contestant in the counties of Chicot and Hempstead, for the reason that the forty days allowed by law to contestant in which to take testimony -in-chief had expired before the taking of eviden(je in said Chicot and Hempstead Counties commenced. Protests of contestee were duly entered on the record against the taking of such testimony. Contestant, however, contends that, as he commenced taking testimony on the 18th day of February, 1879, the forty days allowed him commenced running from that day, and this view, if correct, will entitle him to the benefit of the testimony taken in those two counties. -*^- •-- ■ Section 107 of the Eevised Statutes provides that the time allowed for taking testimony shall be ninety days, and it shall be taken in the following order : The contestant shall take testimony during the first forty days, the returned member during the next forty days, and the contestant may take testimony in rebuttal onhj during the remaining ten days of said period. In order to settle definitely from what time the forty days allowed to- contestant in which to take his testimony-in-chief should begin to run, it is provided by the act of Congress upon the subject of contested elections, approved March 2, 1875, that section 107 shall be so construed as to require that, in all cases of contested elections, the testimony shall be taken within ninety days from the day on which the answer of the returned member is served upon the contestant. (Statutes 1875, chap. 119, section 18, p. 338.) The answer of contestee to contestant's notice of contest was served on contestant on the 29th day of January, 1879 (page 6). The time,, then, for taking contestant's testimony-in-ehief expired on the 10th day of March following. The taking of testimony by him in Chicot and Hempstead Counties was commenced in Chicot County on the 20th day of March, ten days after the expiration of the time allowed to him, and was closed in Hempstead County on the 2^th day of March. The pro- visions of the statutes referred to cannot be disregaxxled, and contest- ant, without leave of the House, was unauthorized to take further tes- timony-in-chief after the 10th day of Mai-ch, when his time for that purpose expired. The law is intended to, and does, furnish each party ample opportu-. nity for taking testimony, if ordinary diligence is used ; and especially is this the case, when it is considered that a party may take testimony at two or more places on the same day. This wise provision of the law furnishes a strong reason against an extension of time in ordinary cases like the present. (Boles vs. Edwards, second session Forty-fifth Con- gress ; Vallandigham vs. Campbell, Thirty-fifth Congress; Carrigan vs. Thayer, Thirty-eighth Congress.) Ko application was made to the House by contestant for an extension of time, and the question is now clearly presented whether, without any cause whatever being shown therefor, the testimony thus taken out of time shall be admitted and considered. Another important fact may be considered in this connection. It appears from an examination of the record of the testimony that the time actually consumeji by con- testant in taking the entire testimony returned, including that taken beyond the time allowed by law, was only eighteen days ; thus estab- lishing the fact beyond controversy that he could, by the use of ordinary diligence, have taken the entire testimony within the time allowed him by law without trespassing upon the time allowed to contestee. In view of these facts, no reason exists why the committee should consider the 298 DIGEST OF ELECTION CASES. testimony taken in Chicot and Hempstead Counties, or should recom- mend that it be considered by the House. The first point made by contestant is, in effect, that a corrupt con- spiracy was formed and partially carried into effect, by the friends of the sitting member, to regulate and control the election in Jefferson County, at least, in his interest, regardless of the provisions of the laws of Ar- kansas regulating elections. As preliminary to an examination of the testimony upon this point, and as incidentally connected therewith, it may be proper to remark that the evidence clearly discloses the follow- ing facts: For the purpose of correcting abuses which had prevailed in the ad- ministration of public affairs in Jefferson County in the summer of 1878 and several weeks prior to the election for county officers, which was held on the 8th day of September of that year, two months prior to the Oongressional election, several prominent men of both political parties helil conferences at different times and places with a view of presenting to the people for their suffrages a county ticket composed of candidates from each party best qualified for the several positions to be filled, and who would not be objectionable to either, which was termed a compro- mise ticket. These conferences were held, as the testimony discloses, solely with reference to a county ticket ; no allusion whatever being made to the Congressional race. Indeed, no portion of the entire evi- dence refers, even remotely, to any other than the candidates J^or county offices, nor does it appear that the Democratic Congressional convention had then been held. The result of these several conferences was, a compromise ticket was presented to the county conventions of the two parties and finally nom- inated by each, although not with entire unanimity. An anti-compro- mise ticket was also nominated, also composed of candidates from each party. The result of the election was in favor of the compromise ticket. ■ * The term is four years. Article Seven. Sec. 5. But no such laws [laws io reference to the State contracting debts] shall take effect UQtil at a general eUolion it shall have beeu submitted to the people. " * * Article Nine. education and schools. A board of education is established, consisting of the lieutenant-gov- ernor and one member to be elected from each judicial district in the State. Sec 3. One member of said board shall be chosen by the qualified electors of said district and shall hold office for 'he term of four years. ' * * The board is classified so that one-half, as near may be, shall go out every two years. Article Ten. h amendments to the constitction. Sec 3. At the general election to be lield in the year one thousand eight hundred and seventy, and at each ten years thereafter, and also at such times as the general assem- bly may by law provide, the question of amending or revising the constitution shall be voted upon by the electors. » • • Article Eleven. miscellaneous. Sec. 6. In all cases of elections to fill vacancies in offices occurring before the ex- piration of a full term, the person so elected shall hold for the residue of the unexpired term; and all persons appointed to fill vacaocies In office shall hold until the next general election, and until their successors are elected and qualified. Article Twelve. schedule. Sec. 6. The first election under this constitution shall be held on the second Tuesday in October, in the year one thousand eight hundred aud fifty-seven, at which time the electors of the State shall elect the governor and lieutenant-governor ; there shall also be elected at such election the succe.^sors of such senators as were elected at the August election, in the year one thousand eight hundred and fifty-four, and members of the house of representatives. » « * * Sec. 7. The first election for secretary, auditor, and treasurer of State, attorney- genera), district judges, members of the board of education, district attorney, members of Congress, and such State officers as shall be elected at the April election, in the year one thousand eight hundi;ed and fiftjvseven, except the superintendent of public in- struction and such county officers as were elected at the August election, in the year one thousand eight hundred and fifty-six, except pro.secuting attorneys, shall be held on the second Tuesday of October, one thousand eight hundred and fifty-eight, pro- vided the time for which any district judge or any other State or county oflicer was 334 DIGEST OF ELECTION CASES. elected at the April election, eistteen liundred and (ifty-eiglit, sball not extend be- yond the time for filling like offices at the October election, in the year one thousand eight hnndred and fifty-eight. Sec. 8. The first election for judges of tlie supreme court and such county officers as shall be elected at the August election, in the year one thousand eight hundred and fifty-seven, shall be held on the second Tuesday of October, in the yi-ar one thousand eight hundred and fifty-nine. Sec. 10. Senators elected at the Angust election, in the year one thousand eight hundred and fifty-six, shall continue in office until the second Tuesday of October, in the year one thousand eight hundred aud fifty-nine, at which time their successors shall be elected as may be j)rescribed by law. This constitution was ratified by the people August 3, 1857. One ob- ject in establishing it, as appears by the records of the proceedings in the constitutional convention, was to do away with the two elections required by the constitution of 1846, iu Presidential years. In the year 1856, the year before the adoption of the present consti- tution, there had been held an election iu Ai)ril for township officers and district judges, an election in August for many other State aud county oiEcers and for members of Congress, and an election in November for Presidential electors. Until the schedule being article 12 of the consti- tution of 1857 is reached, there is nothing iu the constitution itself indi- cating the year in which any of the elections would be held. The lerms of ofiSce were two. four, and six years. It is i)lain that there must be an election every two years, but until the schedule established it there was nothing to indicate on what year the first election under this constitutiou should be held. In the absence of the schedule, although there is no express provision that all the oflflcers should be elected at the first election, yet the implication to be derived from section 3, article 3, in which a d,ay of election is expressly > fixed in reference to the members of the State house of representatives, and is fixed expressly on the Presidential year for the Tuesday next after the first Monday of November, would be that T^embers of that house would be elected on the years of the Presidential election, and as that occurs on even numbered years, aud as the terms of members of that house are two years, the further inference from that section would be that the members of the house of representatives of the State were to be elected on the eveu-n umbered years ; and applying that to the other sections that have been cited, iu the absence of the schedule, the infer- ence would be that it was intended by the constitution to establish bien- nial general elections to be held on even numbered years, namely, on the years of the Presidential election, on the Tuesday next after the first Monday of November, and on other even-numbered years on the second Tuesday of October. By the schedule it was determined, apparently for the first time, that there should be annual elections ; that part of the State ofiicers should be elected in the even-numbered years aud part in the odd ; aad pro- vision M'as made for fixing the year in which the first election for the different officers should be held ; and this year being fixed, succeeding elections of these ofiicers, except in the case of vacancies, followed, as of course, according to the respective lengths of the terms of ofiice, which in every case were an even-number of years. The words general election occurring in the constitution can only refer to an election held on the second Tuesday of October, except in the year of the Presidential election, and then on the Tuesday next after the first Monday in November, and in section 3, article 10, it is expressly provided that a general election shall be held in 1870, and in every tenth year thereafter which are even-numbered years. HOLMES VS. WILSON. 335 An argument may be, perhaps, drawn in reference to the secretary of State, auditor of State, and treasurer of State from section 22, article 4, because no time for the election of these offlcers is therein expressed ; that it was intended to leave the time of their election to the legislature ; but there are no provisions in the constitution giving the legislature power to fix the time of the election of tbese officers, and in section 12 of article 5 the provision is that the general assembly may provide by law for the election of an attorney-general by the people, whose term of office shall be two years, &c.; and the argument is perhaps equally strong that if the people did intend by their constitution that the gen- eral assembly should provide by law for the election of secretary, au- ditor, and treasurer of the State, they would have said so in plain terms. The powers which the people, by their constitution, confer upon the legislature are to be determined by a proper construction of the consti- tution itself, in the same manner as the regulations they have iSxed for themselves by that constitution, or as the rights and powers they have reserved to tliemselves outside of the limits of that constitution. Among the offlcers whose tirst election by section 7, of article 12, is fixed for the second Tuesday of October, 1858, and even-numbered year, not Presidential, are district judges, who by section 11, article 5, are to be chosen at the general election^ and who held office for four years, who were therefore elected thoughout the State on the second Tuesday of October, 1878. In a constitution in some respects so inartiflcially drawn as this is, in which in reference to some officers the day of election is expressly fixed in the constitution, in reference to others it is provided that they are to be chosen at a general election, and to others that they ar^ to be elected by the qualified voters, but no provision is expressly made for fixing the time of their election, and in reference to one of them, the attorney-general, there is an express provision that the general assem- bly may provide by law for his election, much weight must be given to the general scope and meaning of the instrument, and. we think that it sufficiently appears in the constitution itself that the people of Iowa Intended by their constitution that there should be annual general elec- tions for State offices; that these elections should be held on all but Presidential years on the second Tuesday of October, and on those years on the Tuesday next after the first Monday of November; and that the Intention of the sections in the schedule which have been cited was to establish the years of the first election of the different officers, so that some might be elected each year at the annual election, the officers under the old constitution continuing in office until their successors were elected, and that it was not meant by this schedule to permit the legis- lature to make a ^hange in the day of the general election in any year after the first election. The significance of the expression of time in these sections of the schedule is in the year and not the day. The same day is named for all the years. It is conceded that on the odd-numbered years after the first election there must be an election for members of the State house of representatives, of one-half of the senators, of governors, lieutenant- governors, and some of the judges of the supreme court, and that the election must be on the second Tuesday in October; but there is nothing in the constitution indicating that the provisions for the day of election were meant to be different on the even -numbered years not Presidential than on the odd-numbered years, or that the constitution meant to give the legislature any more control over the day of election in even-num- bered years than in odd 336 DIGEST OF ELECTION CASES. The reason for fixing a different day on tbe years of the Presidential elections has been stated — namely, that the appointment of Presiden- tial electors had been fixed by a statute of the United States for the Tuesday next after the first Monday of November; but at the time of the adoption of this constitution there was no law of Congress prescrib- ing the time of electing Representatives in Congress, and it is not to be presumed that, except on Presidential years, without any known reason whatever, it was intended that the elections in the successive years should be held on different days, or that the legislature should have the power to change the day on even-numbered years, but not on odd. It is not, of course, admitted that if the constitution of a State established biennial elections to be held at a certain time on the odd-numbered years, that then the twenty-fifth section of the Revised Statutes would be applicable to such a State. The late constitution of California, under which Representatives in Congress were elected in September in the odd-numbered years, illustrates this. The general peculiarities of the constitution of 1857 are derived from that of 1846, and the particular provisions on which the decision turns are similar in botb. Tbe constitution of 1846 provided as follows: The ruembers of the House ot'Eeyresentatives shall be chosen every second year, * * * on the first Monday of Angnst, whose term of office shall eoutioue two years from the gefieral election. In this section no year of election is mentioned. Senators shall be chosen for the term of fonr years at the same time and place as Eepresenlatives. * * * Thej^are to be classified so that one-lialf are to be elected every two years. A secretary of state, auditor of public accounts, and treasurer shall be elected by the qualified electors, who shall continue in office two years. The judges of the supreme court were to be elected by the general assembly, and the district judges were to be elected by the qualified voters of the district in which they reside at the township election. The qualified voters of each county shall at the general election elect one prosecut- ing attorney, and one clerk of the district court, who shall be resident, &c. The term of office was two years. There was no attorney-general by this constitution. Article Twblvb. schedulk. Sop. 5. The^)'.s< general election under this oonstitntiou shall he held at such time as the governor of the Territory by proclamation may appoint within three months after its adoption for the election of a governor, two Eepresentativesin the Congress of the United States (unless Con!,a-ess shall provide for the election of one Representar five), members of the general assembly, and one auditor, treasurer, and secretary of state. * » » The office of clerk was not mentioned in this section, and no express provision was made in this constitution for the \jear of holding the gen- eral election except this, which in terms related only to the first general election. Under this constitution the case of the State vs. Cadle arose (2 Green's Reports, Iowa, p. 400), which was decided by the supreme court of Iowa in 1850. The case was an information in the nature of a quo icarranto on the relation of Abraham Smalley against Richard Cadle. Smalley HOLMES VS. WILSON. 337 •claimed to have been elected clerk of the district court of the county of Muscatine on the first Monday of August, 1849. Oadle claimed to have been elected such clerk at a general election held on the first Monday of August, 1848. In the opinion it is stated that the first general elec- tion was fixed bj"^ proclamation of the governor of the Territory in Octo- ber, 1846, and in another place in the opinion it is referred to as having been fixed in December, 1846. At the first election the opinion states : Several of the clerks were chosen without legal notice of the election. » » » Clerks were again elected on the first Monday in August, 1847, in some of the counties, and their election was declared to be legal by an act of the general assembly approved January 25, 1848, and by the same act subsequent elections were authorized to take place on the first Monday in August, 1849, and biennially theieafter. If this act was constitutional, then Smalley, the relator, was entitled to the office by virtue of his election on the first Monday in August, 1849. Cadle's claim that he was duly elected on the first Monday of August, 1848, and still held the ofSce, rested on these propositions : That, by the constitution, clerks were to be elected at the general election ; that by the proper construction of the constitution, the general election was to take place every two years; that as the first general election had been fixed by the proclamation of the governor of the Territory for the year 1846, by a proper construction of the constitution the subsequent gen- eral elections must be held on the first Monday in August in the even- numbered years thereafter, and that therefore the act of the general assembly fixing the election of clerks on the odd-numbered years was unconstitutional and void. The court sustained this view, and, among other things, say: But the first general election, as we have seen, was to be at such time as the Terri- torial governor might appoint. That time having been fixed in December, 1846, it necessarily follows that the next general election, as biennially designated by the con- stitution, was on the first Monday of August, 1848, and would occur on the same Mon- day on each alternate year thereafter. * * » jB^t independent of this consider- a.tion [speaking of the consideration of public convenience] and without going beyond the explicit language of the constitution, we have united in the conclusion that the general elections authorized by the constitution are biennial, and as the first general election took place in 1846, the second was held on the first Monday in August, 1848, And that under the constitution the only time appointed for the election of clerks and prosecuting attorney is at the general elections. The court thus construed together the words "first Monday of Aug- ust," being the day fixed for the election of State representatives, the words " general election," the fact that the first general election was fixed by the governor pursuant to the constitution for the year 1846, and the provision that the terms of office were two years or multiples of two years, and decided that by the constitution general elections were fixed by the constitution for the first Monday of August on the even- numbered years after the first election in 1846. The reasoning of this opinion of the supreme court of Iowa is sub- stantially that adopted in this report. A comparison of the two consti- tutions shows, as has been said, that much of the language of the con- stitution of 1857 was taken verbatim from that of 1846, and this com- parison also accounts for the peculiar language in the constitution of 1857, in reference to the election of an attorney-general, an officer un- known to the constitution of 1846, and for the fact that until the sched- ule is reached the constitution of 1857 apparently contemplates biennial elections. H. Mis. 58 22 338 DIGEST OF ELECTION CASES. It was in view of this decision of the supreme court of Iowa, settlii the construction to be given to the constitution of 1846, that the frame: of the constitution of 1857 acted, and it would not occur to them thi the same language in the new constitution as in the old, or similar la: guage, would or could receive a different construction. We are fortified in the conclusion we have reached by the proceedin| in the constitutional convention of 1857. In the debate on the third section of article three, relating to tl election of members of the House of Eepresentatives, which was, so ft as the time of election is concerned, reported in its present form, M Gillespie moved to amend by providing that the elections shall be hel on the Tuesday next after the first Monday in I>!"ovember, andinexplai ation of the amendment said: If we fix the time of the general election in order to have the terms of ofBoes tinifori •we must fix the elections in October or in November ; in the region of the State whic I represent, our people are dissatisfied with the numerous elections we have, and thei seems to be a general feeling manifested throughout in favor of placing the geueii election on the day of the Presidential election, so as to obviate the necessity and 62 pense of having two elections. Mr. Parvin, who was chairman of the committee on the legislativ department, said: I am not particular myself whether these elections are fixed in October or Novembej but so far as I have conversed with other persons on the subject they seem to thin! that the weather in November is too cold and blustering for elections to be held duiin that month, and that October would be a more suitable month. It was thought by the committee that it was not necessary to have two elections s near every four years ; to remedy that they made provision that on the years of th Presidential elections the general elections should be also on that day. Mr. Palmer said: I think this section is well enough as it is. It provides for elections being held oi the second Tuesday in October of each year except the years of the Presidential felec tion, when it is to be held on the day of that election. » » » As to the time, I thiul it is well enough to have the election in October when we can do so, and not have tw elections coming so close together. The objection is a very obvious one — to having two elections coming close togethe every four years, requiring voters to go, as the gentleman from Eattan has said — ti go from twenty to twenty-five miles to the place of election, or lose their votes. * * I am in favor of having our election on the second Tuesday in October in thos years other than the years of the Presidential election, on account of the weather am the convenience of our farmers. (Constitutional Debates of Iowa, 1857, pp. 514, 515. Afterwards Mr. Young moved to strike out the exception of the year; of the Presidential election, and said: As the section now stands, we would have elections for three years in October an( for one year in November. Mr. Gillespie, in reference to this proposed amendment, said : I do hope that the people «f this State will not be burdened with two elections- one in October and one in November — every four years, and that the convention wil adopt the report of the committee. If the report be adopted, I am perfectly satisfied and I believe my people will be satisfied with it, because it accomplishes the great ob ject we had in view — that is, to do away with the frequent elections that caused s( much trouble and expense. (Pages 576, 577.) In discussing the schedule (report on the schedule), in which the sec tions cited In this report were reported in their present form, Mr. Wil son said : The committee have determined to so arrange the tickets as to divide the can didates in about equal proportions for the elections to be held upon different years * * * By pursuing this course, we find that at the next October election we havi HOLMES VS. WILSON. 339 to elect members of tlie general assembly and governor and lieutenant-governor. At the election in October, 1858, we have to elect the secretary, auditor, and treasurer of state, attorney-general, district judges, district attorneys, members of Congress, board of education, and such State ofdcers as will be electedat the next April election. This will give a ticket of about equal size to each year. When we come to put in the first ticket for the judges of the supreme court to be elected in 18.i9, we will give tickets to each year of about equal proportions; for in one year we will have election of judges of the supreme court, members of the general assembly, governor and lieutenant-governor, and in the other we have the remainder of the State officers aijd our Congressmen. We concluded that that was the best di- vision of the tickets, inasmuch as we were compelled to have elections in these differ- ent years. (Constitutional Debates, p. 1039.) These statements seem to have been uncontradicted in the conven- tion, and apparently it did not occur to the members of that bodj"^ that they had not fixed a day of election for all the years, viz, on all but the years of the Presidential election, on the second Tuesday in October, and on those years on the Tuesday next after the first Monday in No- vember. We are, therefore, of opinion that the governor of Iowa adopted the right construction of the constitution of that State in deciding that it did fix the day of election of State ofBcers (with the exception, per- haps, of the attornej'^-general), whether those State officers were to be elected on the odd or even numbered years, so that it would require a change in that constitution to elect State officers (who were required by the State constitution to be regularly elected by the people in the year 1878), on the Tuesday next after the first Monday in November, and that the election of Representatives in Congress, held in accordance with the laws of the State on the second Tuesday in October, 1878, was held on the day on which alone it could lawfully have been held. In reaching this conclusion we disregard altogether the provision for the election of members of Congress found in section 7, article 12, of the constitution of Iowa. That provision may tend to show that it was the intention of the people of Iowa that members of Congress should be elected on the second Tuesday in October of the even numbered years not Presidential, but the time of electing members of Congress cannot be prescribed by the constitution of a State, as against an act of the legislature of a State or an act of Congress, and the amendment to the twenty- fifth section of the Eevised Statutes of the United States is confined to States whose constitutions fixes the day of election of State officers in said State. The only apparent exception has been in the constitutions which have been formed by Territories, and with which such Territories have been admitted into the Union as States ; but this, if it be a valid exception, does not prove that Territories have the right by a constitution to fix the time for electing Eepresentatives in Congress when they become States ; but the authority of these provisions rests on the sanction and adoption of |hem by Congress in admitting such Territories as States, with constitutions containing such provisions. In accordance with the views we have expressed of the manner in wl\ich these petitions should be disposed of, we recommend the passage of the following resolutions : Resolved, That the petitioner, J. C. Holmes, in the matter of his pe- tition asking to be admitted to a seat in the Forty-sixth Congress as a Eepresentative from the eighth Congressional district of the State of Iowa, have leave to withdraw his petition. Besolved, That the petitioner, John J. Wilson, in the matter of his petition asking to be admitted to a seat in the Forty-sixth Congress as 340 DIGEST OP ELECTION CASES. a Eepresentative from the nintli Congressional district of the State of Iowa, have leave to withdraw his petition. W. A. FIELD. J. WAEEEN KEIFBE. W. H. CALKINS. JOHK H. CAMP. J. B. WEAVER. E, OVEETON, Jr. Note. — I do not agree to all the positions in the foregoing opinion, 'bntdo agree to the final result. W. H. C. We concur in the conclusion reached above, without fully indorsing the reasoning by which it is reached. E, F. AEMPIELD. VAN H. MANNING. SAML. L. SAWTEE. I concur in the resolutions recommended by the foregoing report, and add the following summary of my reasons : 1. The right to contest the seat of a member of Congress and the manner in which that right shall be exercised are both clearly fixed by law. The members of the Iowa delegation in the Forty-sixth Congress were chosen by large majorities on the 8th day of October, 1878, which was the usual day for holding State elections, and was recognized as the proper day by the masses of the people. No one of the candidates who opposed the sitting members iu that election has filed a notice of contest. There are, therefore, no contestants under the law. If that election was held on a day which was plainly in violation of the act of Congress, although no notice of contest was given, any citizen of the State could have protested against the seating of the delegation thea chosen, and asked Congress to declare the election void. No such pro- test has been filed. The farce which was enacted on the 5th day of November, 1878, was not an election, and it would be wrong to dignify it as such, and still worse to; recognize its validity in any respect. It clearly, did not give the petitioners the status of contestants under the , provisions of the act of Congress regulating contests, and their petitions • cannot be construed as coming from citizens of Iowa, and asking that the election of October be declared void. There is nothing, therefore, in any aspect of the case, in these petitions to put Messrs. Sapp and Oar- tpenter on their defense, or to invalidate in any way their right to their -seats. 2. The question whether the constitution of the State of Iowa " must be amended in order to effect a change in the election o£ State ofQcers," is one which it is the exclusive right of the State to decide. The per- sons 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. P. E. BELTZHOOVEE. HOLMES VS. WILSON. 341 January 13, 1881 — Mr. Colerick, from the Committee on Elections, submitted the following VIEWS OF THE MINORITY: The undersigned, a member of the Committee on Elections, submits the following minority report: Three questions have been submitted for our consideration : 1. Has this committee jurisdiction to investigate the matters referred to in the memorials and papers presented to us, or do these cases come within, and therefore to be governed by, the provisions of the statute of the United States relating to and regulating the mode of procedure in cases of contested elections of members of ihe House of Kepresenta- tives? If they do come within that statute, then we have no jurisdic- tion, as it is conceded that its requirements have not been complied with. 2. Was the election that was held on the 8th day of October, 1878, in the State of Iowa for Eepresentatives to Congress legal? 3. "Was the election in the iSighth and Ninth Congressional Districts of Iowa on the 5th day of November, 1878, for Representatives to Con- gress held on the day prescribed by law, and, if so, were the claimants duly elected such Representatives? First. These cases are not contests between persons asserting con- flicting claims to seats in Congress by virtue of the same election. They were not rival candidates at the same election. The memorialists dis- claim any right to the seats in controversy under the election that was held on the 8th day of October, 1878. They concede that if Eepresenta- tives to Congress could have been legally voted for at the election then held, Messrs. Carpenter and Sapp are entitled to the seats now held by them, as they each received at said election a majority of the votes cast in the respective districts represented by them in Congress. They make no charges of bribery, corruption, or fraudulent voting. They predicate their right to the seats in dispute by virtue of elections held in said dis- tricts for Eepresentatives to Congress at a different time than that at which Messrs. Carpenter and Sapp were elected. The claimants do not assume or occupy the position of contestants, and therefore, in my opinion, the statute relating to contested elections is not applicable to these cases. The Constitution of the United States declares that "each house shall be the judge of the elections, returns, and qualifications of its own members." (Article 1, section 5.) It is provided by Rule 77 of the House of Eepresentatives, that " It shall be the duty of the Committee on Elections to examine and report upon the certificates of election, or other credentials, of the members returned to serve in this House, and to take into their consideration all such petitions and other matters touch- ing elections and returns as shall or may be presented, or come into question, or be referred to them by the RouseP By virtue of this rule, which was adopted as an efficient aid in executing the power so conferred by the Constitution, the House adopted resolutions by which the memorials of the claimants in these cases, and " all papers in the hands of the Clerk of the House relating to the elections of Representatives in Congress for the eighth and ninth districts of Iowa,'" were referred to this committee. Under these resolutions, and the rule of the House above set forth, and the provision of the Constitution above cited, we are not merely vested with ample power and complete jurisdiction to investigate these cases,. but our duty to do so is rendered imperative. 342 DIGEST OF ELECTION CASES. Second. The Constitution of the United States declares that " The times, places, and manner of holding elections for Senators and Repre- sentatives 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." (Article 1, sec. 4. ) ;;;: Under this provision of the Constitution the legislature of the State of Iowa was authorized and required to prescribe the time, place, and manner of holding elections in that State for Eepresentatives in Con- gress, subject to the power of Congress to alter at any time such regula- tions. By virtue of this provision of the Constitution the legislature of that State did enact a law prescribing " the time, place, and manner" of holding elections for Eepresentatives, and designated the second Tuesday in October as the "time for the holding of said election. Sub- sequently, in February, 1872, Congress, exercising the power conferred upon it by the Constitution, altered the regulations so prescribed by the legislature of Iowa, as to the time designated for the holding of said election, by the following enactment: The Tuesday after the first Monday in November, in the year 1876, is established as the day in each of the States and Territories for the election of Representatives and Delegates in the 45th Congress, and the Tuesday next after the first Monday in No- vember in every second year thereafter is establhhed as the day for the election in each of said States and Territories of Eepresentatives and Delegates to the Congress com- mencing on the 4th day of March thereafter. (Section 25 of the Revised Statutes of the United States, 1878.) Afterwards Congress modified said law, as' follows: That section 25 of the Revised Statutes, prescribing the time for the holding elec- tions for representatives to Congress ia hereby modified so as not to apply to any State that has not yet changed its day of election, and whose constitution must be amended in order to effect a change in the day of the election of State officers in said State. (Section 6, chapter 180, acts of the second session of the Forty-third Congress approved March 3, 1875.) , , The question presented to us is, Does the State of Iowa come within the exception named in said act, as modified ? Must her constitution be amended "in order to effect a change in the day of the election of State officers in said State " 1 The constitution of Iowa provides that — The ^rst election for secretary of state, auditor, and treasurer of state, attorney- general, district judges, members of the board of education, district attorneys, mem- bers of Congress, and such State ofSoers as shall be elected at the April election in the year 1857, * * * shall be held on the second Tuesday of October, 1858. (Section 7, article 12.) No provision exists in the constitution of Iowa for any subsequent election of the officers above named, and by reason thereof the duty of providing for subsequent elections of said officers devolved on the legis- lature of said State, who provided therefor, by enacting that said of- ficers should be elected on the second Tuesday in October, and by vir- tue of this legislative enactment all subsequent elections of said officers have since then been held. The attorney-general of Iowa, who, prior to October, 1878, was re- quired by the goveruor of that State to examine the various provisions of the constitution of the State, and render an opinion as to the proper construction to be given thereto, so that it might be determined whether it was necessary to amend said constitution in order to effect a change in the day of the election of State officers in said State, says, in the opinion so rendered by him : Our State constitution does not fix a day for the election of all State officers, but it does in its very terms fix the time for the election of governor and lieutenant-gover- nor. Sections 3 and 5 of article 3 of our State constitution provide that the election HOLMES VS. WILSON. 343 for members of the general assembly shall be on the second Tuesday in October; and sections 2 and 3 of article 4 provide that the governor and lieutenant-governor shall be elected at the same time and place as members of the general assembly. The time, then, for the election of two State ofdcers is definitely fixed by the terms ■of the constitution ; but the time for the election of the other State officers is not fixed, either by direct terms or by necessary implication. Hence it was by the con- stitution left to the law-making powrr to fix the time of the election of all other State ■officers. The constitution, as to them, has only fixed the time for the first election. The fact that the constitution iy its terms fixes the day of the election of members of the general assembly, governor, and lieutenant-governor, and only fixes the day for the "first election " of the other oflioers, indicates that after the "first election" the time for the election of the other officers was intended to be left to legislative control. It will be noticed that, in addition to fixing the tinie for the election of governor and lieutenant-governor and members of the general assembly generally, the consti- tution also fixes the time for the first "election." Thus it will be seen that the constitution fixes the day for the first election of all the ■officers named in it, and fixes the time for all subsequeut elections of governor and lieu- tenant-governor and members of the general assembly. In the article relating to the •executive, the time for the election of governor and lieutenant-governor is fixed; in the article relating to the legislative department, the time for the election of mem- bers of the general assembly is fixed ; and the article relating to the judiciary pro- vides that the judges shall be chosen at the " general elections," and article 12 pro- vides for their "first election." The "general election" must refer to some other time than the time mentioned as the day for the election of members of the general assembly, governor and lieutenant- governor. No " general election " is provided for by constitution ; only the time for the election of two State officers and members of the general assembly is fixed. For some reason the constitutional convention thought it proper that the time of this election be fixed by constitutional provision, but left it to the wisdom of the general assembly to say whether that should be the day for the "general election." I think that the constructioa so given to the constitution of Iowa by het attorney- general is the borrect one. The first auA all subsequent elections for governor, lieutenant-gover- nor, and members of the legislature were fixed and prescribed by the <;onbtitution, which provides " that the first election of these officers shall be held on the second Tuesday in October, 1859, and that like ■elections for said officers shall occur every two years thereafter," so that these oificers are invariably elected in the odd numbered years, while Eepresentatives to Congress, and all officers of the State, except the governor and lieutenant-governor, are elected, by legislative enactment, in the even numbered years ; therefore, the objection that if it is held that the State of Iowa does not come within the exception of the act of Con- gress providing for the election of Eepresentatives to Congress, as mod- ified, that it will necessitate the holding of two elections in the same year in that State, does not exist. It is also urged that, because the governor of that State decided that its constitution must be amended in order to lelect Eepresentatives to •Congress on the Tuesday after the first Monday in November, the de- cision so rendered by him must be accepted as the true construction to be placed upon that instrument. While it is true that the Federal courts have repeatedly held that the construction placed upon the constitution and laws of the respective States by the latest utterances of the highest Judicial tribunals thereof, will be respected and adopted by the Federal courts (7 Wallace, 523; 9 Wallace, 35; 14 Howard, 438; 23 Wallace, 108), yet they have never, so far as I am aware, extended the limits of this rule so as to embrace decisions rendered by any other than the judi- cial department of a State. It is not claimed that the highest or any othfiT judicial tribunal of the State of Iowa has given a construction to these provisions of her constitution, and in the absence of such decision we are left unrestrained to place our own construction thereon. I do not think that the constitution of Iowa " must be amended in order to effect a change in the day of the election of the State officers in said 344 DIGEST OF ELECTION CASES. State, and, therefore, I believe that the election which was held in that State in October for Representatives to Congress was unauthorized and illegal. Third. It follows, in my opinion, that the election should have been held on the 5th day of November, 1878, in accordance with the act of Congress, and under the regulations prescribed by the legislature of the State of Iowa fixing the places and manner of holding elections for such Representatives. The Eighth Congressional district is composed of thirteen counties. At the election held on the 8th day of October, 1878, 30,556 votes were cast, while at the election held on the 6th day of November, 1878, the polls were opened in only four precincts of the district, and these were confined to two of the thirteen counties composing the district, and the entire vote cast at said election was 171. The Ninth Congressional district embraces 26 counties, and the vote cast in the district for Eepresentative to Congress; at the election held in October, 1878, was 38,029, while at the election held in November, 1878, for the same purpose, the polls were opened in only twelve precincts of the disirict, and these were located in three of the twenty-six counties constituting the district, and the entire vote cast at said election was 357. The elections which occurred in said districts on the 5th day of Novem- ber, 1878, were held in the absence of a proclamation of the governor of Iowa directing the holding of the same, and other formalities required by the statute of that State in relation to such elections were not com- plied with. While, in my judgment, the failure of the governor to issue a procla- mation, and the omission of other offlcers to perform their duties would not alone invalidate the election, as their neglect ftrr refusal to comply with their duties should not result in depriving the people of the right, to elect their of&cers at the time fixed by law for that purpose, yet it is- quite evident, from the very small vote cast, that the voters of the dis- trict generally abstained from voting or taking any part whatever in said election, and it is fair to assume that the cause of their failure to do so is alone attributable to the fact that they believed that the election which had been held in October for Representatives to Congress was authorized by law and legal, and that said subsequent election was un- authorized and illegal, and by reason of this belief, so created, they failed to participate in said election and thereby the will of the people was not fairly or fully expressed at the election held in November, and therefore 1 do not think that the claimants who base their right to the seats in dispute under and by virture of said election are entitled to the same. If the views above expressed are correct it follows that the seats now occupied by Messrs. Sapp and Carpenter, respectively, as Representa- tives in Congress from the eighth and ninth Congressional districts of the State of Iowa, should be declared vacant, and accordingly I submit for the consideration of the House of Representatives the following res- olutions : Resolved, That neither J. C. Holmes nor William F. Sapp was law- fully elected to the Forty-sixth Congress from the eighth Congressional district of Iowa, nor is either of them entitled to a seat in said Congress. Resolved, That neither John J. Wilson nor Cyrus C. Carpenter was lawfully elected to the Forty-sixth Congress from the ninth Congres- sional district of Iowa, nor is either of them entitled to a seat in said. Congress. WALPOLE G. COLERICK. MERCHANT VS. ACKLEN. 345- W. B. MERCHANT vs. JOSEPH H. ACKLEN. ROBERT O. HERBERT vs. JOSEPH H. ACKLEN. Third Congressional District of Louisiana. In these cases the contestants failing to file briefs, as required by the rules of the committee, and on further notice failing to show cause why their cases should not be dismissed on account of such failure to file briefs as directed, the commit- tee report in favor of contestee. The Honse adopted the report March 1, 1881. March 1, 1881. — Mr. Springer, from the Committee on Elections, sub- mitted the following EEPOBT: The Committee on Elections, to whom were referred the contested election cases of W. B. Merchant vs. J. H. AcMen and Sobert 0. Herbert vs. J. H. Aclclen, of the third Congressional district of the State of Louisiana, respectfully beg leave to report: That the notices of contest and answers thereto were referred to the Committee on Eledlfcns and filed with the clerk of said committee on the 13th day of April, 1879. Evidence taken in the above cases was printed on the 15th day of January, 1880, and copies of the same were sent to the contestants, as required by the rules of the committee, by the clerk of said committee, with an official notice to prepare briefs, within twenty days L am the 25th day of January, 1880, to which no attention was given by said contestants. On the 21st day of May, 1880, the clerk of the committee was directed by resolution to telegraph to Messrs. Merchant and Herbert to appear before the committee either in person or by attorney on the 29th day of May, 1880, and show cause why their cases should not be dismissed on account of the failure to file briefs as directed. No attention was given, to these dispatches, and the parties neither appeared in person nor by attorneys, as notified. The said contestants were again notified by registered letters, on the 22d day of December, 1880, to appear before the Committee on Elections on the 11th day of January, 1881, and show cause why the cases should not be dismissed, and to this no reply was made. We therefore respectfully recommend the adoption of the following resolution : Resolved, That Joseph H. Acklen was duly elected and is entitled to a seat in this House as a Eepresentative in the Forty-sixth Congress^ from the third Congressional district of the State of Louisiana. Resolved, That Eobert O. Herbert and W. B. Merchant have leave to. withdraw their papers of contest in this case. All of which is respectfully submitted. 346 DIGEST OF ELECTION CASES. E. MOODY BOYNTON vs. GEORGE B. LORIl^G, Sixth Gon&ressional District of Massachusetts. Contestant charges that illegal votes were cast for contestee, and that a number of bal- lots failed to designate the office for which the candidate was designed. Contestee objected to the specifications of the grounds of contest because of their insuffi- ciency. ■ Meld: That had the objections been pressed and relied upon they would have beea sustained, as a glance at the nature of contest discloses its u tter insufficiency. All persons who could not read and write, as required by the Constitution of Massa- chusetts, were not legal voters. The presumption that sworn officers of the law have done their duty must obtain un- til the contrary clearly appears. The public law of Massachusetts created the sixth Congressional district ; and it ap- pearing that there was no other "sixth district" in which any of the voters of Groveland, lived except the "sixth Congressional district," nor was there a Repre- sentative office to be filled in any sixth district in which the town of Groveland was situated except the sixth Congressionaldistrict, ballots cast there reading "For Representative, sixth district, George B. Loring, of Salem," clearly indicate in writing the office for which the person voted for is designed. The House adopted the majority report January 21, 1881. December 20, 1880. — Mr. Calkins, from the Comnltttee on Elections, submitted the following REPORT: The notice of contest in this case is as follows : NOTICE OF CONTEST. Newbukyport, Decemler 2, 1878. Dear Sir: You are hereby notified of my intention to contest your election to the Foirty-sixth Congress from the sixth Massachusetts Congressional district, for the fol- lowing reasons, viz : To obtain a recount of votes cast for the candidates for said office, AS errors are belicTed to exist in the returns as made. It is known that ten legal votes cast in the town of Danvers were rejected in the count on pretense of having been feither can any taxpayer's name be dropped from the voting-list without examining and ascertaining his disqualifi- cation. This was done to a degree which might throw out the entire vote of Amesbury, giving fifty-two votes to the contestee ; or if the votes of these old voters, whose taxes the selectmen received and then disfran- chised, be counted, with three illegal votes deducted from Loring, it gives 55 votes to the contestant. It appears probable from the evidence that the usual liberal previous conduct of elections would have secured the contestant's election without further reference to any town in the district, and your committee submits it is his duty to check the severity, injustice, and illegality practiced upon these poor men, waiting for years in misery for the mills to start. The Statutes of Massaschusetts, constitutional amendment, section 13,. chapter 7, page 57 : BOYNTON VS. LOKING. 355 "Art. XX. No person shall have the right to vote or be eligible to office under the constitution of this commonwealth who shall not be able to read the constitution in the English language and write his name; provided, however, that the provisions of this amendment shall not apply to any person prevented by a physical disability from com- plying with its requirements, nor to any person who now has the right to vote, nor to any person who shall be sixty years of age or upwards at the time this amendment shall take effect." Adopted 1857. HAVERHILL. In the city of Haverhill, it is claimed by brief of counsel for contest- ant, important changes were made in the telegraphic report of the result. We only know that the official recount and examination of the ballots occurred November 8, 1878. At this second examination the discrepancy between the ballots for governor and for Congressman was rendered still more suspicious by the discovery of forty-two printed ballots that had been deposited in the boxes for Mr. Boynton with his name erased by pencil, left blank, and no other name substituted. As there were, besides, both a Democratic and Republican candidate running, it is mani- fest a voter desiring to defeat Mr. Boynton by using his pencil, after erasure would have substituted the name of some opponent, as time would have permitted the individual voter. If the votes were tampered with about supper-time on the evening of election, as suggested by coun- sel in first brief, and when the telegraphic reports he claims showed the • change that night, it is a wrong that ought to be righted. Mr. Joseph Ridgway's testimony is Important on account of his experience as al- derman and poll-inspector, and he is at present one of the school board of that city. He examined the erased ballots and assisted in the second official recounting. He was the legislative candidate on the Democratic ticket, and, having charge of the vote-distributors for the Democratic and Greenback party in the city of Haverhill, had personal and official knowledge from the messengers in every ward, and visited each ward personally during the election-day. He swears he heard of no such bal- lots being voted, or blank erasues, as substitution would count doubly; therefore, such wholesale destruction seems a fraud. Owing to the in- tensity of the opposition indicated in this election, we incline to the belief that these forty-two ballots were voted without any erasure. As- suming that we are correct in our views herein expressed, the table will stand as follows : Loring - - -- 10, 339 Add defective votes 8 10,347 Deduct illegal vote at Marblehead 7 10, 340 Deduct at West Newbury : Sheedy McNamara 1 Sheedy's brother-in-law 1 10, 338 Boynton 10,326 Add defective votes 15 10,241 Add for Danvers, challenged votes 10 Add West Newbury 3 356 DIGEST OF ELECTION CASES. Add Amesbury 65 A-dd Haverhill 42 10, 351 This calculation clearly elects contestant, to say nothing of the fact that 138 ballots were counted for contestee at Groveland, the desig- nation upon which was as follows: "For Eepresentative sixth district, No person shall have a right to vote or be eligible to office, under the constitution ■of this commonwealth, who shall not be able to read the constitution in the English language, and write his name. Then follows the provision as to physical disability and age. This article was adopted by the legislature of 1854-'55, and ratified -by the people on the 23d day of May, 1857, by a vote of 23,833 in favor, and 13,746 against, out of some 150,000, the then voters of Massachu- setts. Under it the most learned professors of Europe, coming here and 'taking upon themselves the duties and privileges of citizens, could not vote, unless they were able to read English. It attracted no attention, :and has not been enforced by a statute until since 1874, when the domi- nant party in Massachusetts began to fear for their majority. By the official report of the Masachussetts census bureau of the State census, taken in 1875, it appears that there were 449,686 taxed persons, called ^'ratable polls," i. e., of 21 years of age and upwards, of which number 2,539 were "idiotic" and "insane," 3,678 were convicts, 2,383 were paupers, 79,136 were aliens ; and 31,444 aliens, and 3,153 native «»orn, total 34,597, were classed under the head of " illiterate," which means not able to read the constitution in the English language and write their names. It also appears that there were 351,113 names on the voting-lists. Now, the population of Massachusetts in 1870 was 1,457,352 by the United States census. The whole population by the census of 1875 was- BOYNTON VS. LORING. 357 1,651,652, making an increase of 194,300, or 13.33 percentage of gain. Assuming tliat tlie percentage of increase of population from May, 1875,. to November, 1878, was the same as it was from 1870 to 1875 (in the pro- portion of the lengths of the two periods of time covered by these dates J, although in fact the gain would be considerably greater, and that there would be a corresponding increase in the number of ratable polls, of voters, and of each of the prohibited classes, we have the following; table, showing first the statistics under these several heads, as reported in the Massachusetts census for 1875, and secondly the estimated gain, of each class up to November, 1878 (three and a half years), on a calcu- lated increase of 9 per cent, for that period : May, 1875.— TaftZe. Ratable polls, i. e., males above twenty years 449, 68S Number of voters, native-born 281, 842 Number of voters, foreign -born 69, 271 351, 113 Number of illiterate, naturalized 13,478 Number of illiterate, aliens 17,966 31,444 Number of illiterate, native-born 3, 153 Number of otber aliens 61, 170 Number of male paupers 2,388 Number of male convicts 3, 578 Number of idiotic and insane , 2, 539 455, 385 Number supposed to be under 21 years old 5, 699 449, 686; November, 1878. — Talle sho^wing increase. Ratable polls 490,158 Number of voters, native-born 307, 208 Number of voters, foreign-born 7.5,505 382, 713 Number of illiterate, naturalized 14, 691 Number of illiterate, aliens 19,583 34,274 Number of illiterate, native-born 3,437 Number of other aliens 66, 675 Number of male paupers 2, 603 Number of male convicts , 3, 900 Number of idiotic and insane 2,768 ^ 496, 370 Number supposed to be under 21 years old 6, 212 490, 158 By the Massachusetts census of 1875 the number of ratable polls was 449,687. Adding 13J percentage of gain from 1875 to November, 1878, gives us 490,158 ratable polls at the time of this election. Applying the same percentage to the illiterate native-born, aliens, paupers, con- victs, idiotic, and insane, we should deduct from said ratable polls 113,657, leaving 376,501 ratable polls November, 1878. Allowing four per cent, for stay-at-homes, 15,060, leaves 361,441, of whom but 256,332,. being but 67 per cent., voted, one-third of the voting population being disfranchised. The whole number of votes cast in the State in the election of 1878- was 256,332. From this table may be deduced the following startling facts : That of the 376,501 citizens of the United States, made so by the 14th amendment (allowing that four per cent, of the total vote of the State remained away from the polls), 136,859 were disfranchised from other 358 DIGEST OF ELECTION CASES, causes than criminality, idiocy, and insanity, the causes being what are known as "illiteracy," failure to pay a tax, and pauperism. By section 1, chapter 376, of the law of 1874, every male citizen twenty- one years of age and upwards (except paupers, persons under guardian- ship, and persons excluded by "article twenty of the amendments to the Constitution), who has resided in the State one year, and within' the city or town in which he claims a right to vote six months next pre- ceding any election of city, town, county, or State oflicers, or of Eepre- sentatives to Congress, or electors of President, and Vice-President, and who has paid by himself, his parent, master, or guardian, a State or county tax, assessed upon him in this State within two years next preceding such election, and every citizen exempted from taxation, but otherwise qualified, shall have a right to vote in all such elections ; and no other person shall have such right to vote." Thus it will be seen that, by the constitution and laW^s of Massachu- setts, 105,109 persons are disfranchised, in contravention of the 1st sec- tion of the 14th amendment to the Constitution of the United States, which was adopted by the State of Massachusetts prior to the 21st day of July, 1868, when it was declared adopted by resolution of Congress, which ratification has never been withdrawn by her, and so is at least binding upon Massachusetts. This section is as follows: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State -wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. Now, is the right to vote one of the "privileges or immunities" of a citizen of the United States 1 That is answered by section 2 of the same article, which provides a penalty against the State for depriving a citi- zen of a right to vote at any election, as follows (see, also, 23 Pick. E., 308, where it is decided to be a privilege, per Shaw, 0. J.) : But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Eepresentatives in Congress, the executive and judicial officers of a State, or the legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crimes, the basis of representation shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of such citizens twenty-one years of age in such State. By chapter 3, General Statutes of Massachusetts, on construction of statutes, it is enacted that the word "spendthrift" shall include any person who is liable to be put under guardianship ou account of excess- ive drinking, gaming, idleness, or debauchery. By chapter 109, section 9, of the General Laws of Massachusetts, when any person, by excessive drinking, gaming, idleness, or debauch- ery of any kind, so spends, wastes, or lessens his estate as to expose himself or his family, the mayor and aldermen, or the selectmen of the. ■city or town of which such spendthrift is an inhabitant or resident, or upon which he is or may become chargeable, may present a complaint and have him put under guardianship, according to the provisions of that chapter. And all those citizens of the United States, i. e., those who cannot read and write, who have not paid their taxes, or are so unfortunate as, at some time in their lives, to have required aid from the public, are, by the laws in force in Massachusetts, deprived of their vote, while idiots ^nd insane persons, where not under guardianship, have full right t6 BOYNTON VS. LOEING. 359 Tote ; and we have a school, supported by the State, in which " idiotic and feeble-minded youth" are taught to read and write, and thus be •qualified to vote under the equal, just, and discriminating laws of Mas- sachusetts. Leaving out the idiots, insane, aliens, and convicts, it appears demon- strable that 105,109 citizens of the United States have their immunities and privileges abridged, and are deprived of their right to vote in that State. We have already commented upon the testimony which we have ex- amined in regard to the towns of Amesbury and West IS^ewbury ; how these laws were enforced to the oppression and disfranchisement of the humbler class of citizens, and with the purpose of compelling them to vote according to the dictates of the dominant party. This mode of carrying elections in Massachusetts is termed, by a newspaper of the largest circulation of any daily newspaper in the State, which advocated the Republican candidates in this election, and recommended, as civil- ized bulldozing. We have also shown that if the fourteenth amendment to the Consti- tution of the United States is put into effect, and the representation of Massachusetts is apportioned by a reduction " in the proportion which the number of such male citizens shall bear to the whole number of such citizens twenty-one years of age," it would reduce the number of Representatives from eleven to eight. Now, as the total vote of this district (23,275) is nine and eight one- hundredths (9.08) per cent, of the total Congressional vote of the State, the same percentage of the whole number of citizens disfranchised in the State, viz, 105,109, will approximate very nearly the number dis- franchised in the sixth Congressional district, which we find to be 1,646 for " illiteracy" and 11,475 for failure to pay a tax, making a total of 13,121 — considerably more than half of the total vote thrown in the district, or 2,782 votes more than were cast for any candidate. Shall the State, by its laws and their execution, be allowed to dis- franchise so many of its citizens, and have the benefit of the representa- tion of these disfranchised citizens in Congress and in the Electoral College under the present apportionment 1 Let the law under which this very apportionment is made answer. Section 6, chapter 11, of the acts of 1872, approved February 2, 1872, 17 Stat., page 28, under which the apportionment is made, enacts — That .should any State, after the passage of this act, deny or abridge the right of any of the male inhabitants of such State, bei^g twenty-one years of age and citizens of the United States, to vote at any election named in the amendments to the Consti- tution, article fourteen, section two, except for participation in the rebellion or other orime, the number of Representatives apportioned. in this act to such State shall be reduced in the proportion which such male citizens shall have to the whole number of male citizens twenty-one years of age in such State. This answers the question, and also whether the phrase in the Con- stitution, article 14, of the amendments, " Ifo State shall make or enforce any law which shall abridge the privileges of citizens," &c., is aimed against a law depriving them of the right to vote. It also settles the question which is sometimes raised, whether a constitutional provision «an execute itself without being " enforced by' appropriate legislation." To enforce this law — and all laws ought to be enforced, especially those that guard the rights of the citizen — will substantially diminish Massachusetts from eleven to eight Representatives, and from thirteen electoral votes to ten. 360 DIGEST OF ELECTION CASES. Another question may be raised : It will be observed that this section says, "That should any State, after the passage of this act, deny or abridge the rights," &c. It may be objected that the laws under which the State elections are held in Massachusetts do not appear to have been made after the pas- sage of this act. But if the committee will turn to the law before cited (General Laws of 1874, page 283, chapter 376), they will find that the law imposing these restrictions was passed June 29th of that year, and was an act of the State, therefore, two years after the apportionment act of Congress. In other words, the State took advantage of the ap- portionment according to the whole number of people granted by Con- gress in 1872, in order to get the representation, and then deliberately disfranchised, in the face of that law, quite two-fifths of her voters, so that a few — scarcely half — of her citizens might control it. It may be said that this matter can only be readjusted when the re- apportionment is made; but the answer to that is patent. Such abridg- ment of the rights of the citizens of the State is an offense which the Constitution, ex proprio vigore, declares punishable by loss of represen- tation, and consequently of electors. When is this offense to be pun- ished? The answer is, when it is discovered, whether it is looked upon in the light of an offense or a wrong done. All offenses should be pun- ished when discovered ; all wrongs done, righted when discovered. Is there any man on the committee who doubts, upon all this evidence,, that if it had not beeu for these disfranchising laws of Massachusetts, and the manner in which they were executed, the contestant would have been uncontestedly elected? There can be but one honest reply to that. If so, then it is within the power of the House to seat a man who re- ceived, upon any count, within a score or two of a plurality of the votes actually thrown, and who would have received a large majority of the votes of which he was unconstitutionally and illegally deprived. We have done our duty in presenting these wrongs to Congress. Let the House apply the remedy, and right the wrongs, and prevent the wrong-doers from enjoying the benefits of such wrongs, either in too great representation in the House or in the Electoral College, thereby controlling the choice of the President. We recommend that the following be adopted by the House of Eep- resentatives in this case: Besolved, That B. Moody Boyntbn is entitled to the seat in the Forty- sixth Congress from the sixth Congressional district of Massachusetts^ and that George B. Loring is not entitled thereto. J. B. WEAVEE. DUFFY VS. MASON. 361 SEBASTIAN DUFFY ys. JOSEPH MASON. Twenty -FOURTH OoNeKESSioNAL District of New York. Contestant alleges fraud, tlie buying of votes, and other corrupt and illegal means on? the part of contestee. Contestee insists that the grounds of contest are not stated ■with that precision and certainty required by statute. Held, That the notice of contest is clearly insufficient, but the contestee is estopped by his own acts from assailing the sufficiency of the notice, and its defects have been waived by a subsequent agreement with reference to the taking of testimony. The proof that rumors existed that persons friendly to contestee improperly influenced their employes to vote contestee's party ticket is incompetent and must be rejected as hearsay. It is necessary to establish the truth of these rumors and hot their bare existence; and for the same reason all evidence relating to voluntary state- ments made by persons not under oath or witnesses must be rejected, as all such heresay evidence is inadmissible. Where evidence fails to show that money used by political committees was used to- corrupt or improperly influence the voters, such voters cannot be disfranchised, even though members of such committees have possibly violated State statutes- by using money for purposes prohibited by such statutes. A candidate cannot be held responsible for all the imprudent and censurable acts of indiscreet friends, who, in the zealous advocacy of his election, resort to improper means in securing that result without his knowledge, unless the voters aifeoted by such means are sufficient in number to change or render uncertain the result of the election. Evidence which shows only that certain persons who voted were students at a uni- . versity in the district creates no presumption that they were not legal voters at the place where such university islooated. The House adopted the report May 21, 1880, May 21, 1880. — Mr. Colerick, from the Committee on Elections, sub- mittted the following MEPOBT: The Committee on Elections, to whom was referred the contested-election case of Sebastian Duffy against Joseph Mason, from the twentyfourth Congressional district of Wew Yorlc, respectfully submit the following report : The election out of which this contest arises occurred on the 5th day of November, 1878, in the twenty-fourth Congressional district of the State of New York, composed of the counties of Oswego and Madison, The ofttcial returns show that the contestee received for Eepresentative in Congress from said district 12,043 votes, and the contestant 11,307,. making the contestee's official majority 736. The grounds of contest are specified in the notice of contest, of whicb the following is a copy: 562 DIGEST OP ELECTION CASES. NOTICE OF CONTEST. Hon. Joseph Mason, Mamilton, Madison County, New Yorlc : Sir: Please take notice that I sliall, in the manner provided by law and the rales and precedents of the House of Eepresentatives of the United States, contest your election and your certificate of such election as a member of the Forty-sixth Congress of said United States from the twenty-fourth Congressional district of the State of New York, on the following grounds, to wit: ' First. That you did not receiye a majority of the legal votes cast at the election held in said Congressional district on the 5th day of November last, but, on the contrary, that I did receive a majority of such votes. Second. That your election was effected and procured by force, fraud, intimidation, promises of favor, corruption, the buying of votes and voters, and other corrupt and illegal means used by you and in your behalf; and that your certificate of election as such member of Congress was and is based upon and the result of such force, fraud, . intimidation, promises of favor, the buying of votes, and other corrupt and illegal means used by you and in your behalf. Third. That your election was procured by illegal votes and illegal voting in your behalf, and by your procurement or the procurement of those interested in your elec- tion. Fourth. That your certificate of election is invalid for the reasons stated in the second specification herein. Fifth. That I was, on said .5th day of November, 1878, legally elected as such mem- ber instead of yourseli^ and am entitled in your stead to a seat in said Forty-sixth Congress. Dated Pulaski, December 23, 1878. SEBASTIAN DUFFY. The contestee insists that the grounds of contest are not stated with that precision and certainty required by the statute which authorizes and regulates the procedure in contests of this nature. The objections urged by the contestee are presented in his answer, as follows : II. Y'our notice in writing served upon me December 26, 1878, is insufficient and in- -complete under the statute and practice in such case made and provided, in that it 'does not specify particularly the grounds upon which you rely; that is to say, your ■charges that my election was procured by force, fraud, intimidation, promises of favor, the buying of votes and voters, and other corrupt and illegal means used by me and in my behalf, and that my election was procured by illegal votes and illegal voting, and by my procurement or the procurement of those interested in my election, ■and grounds of contest therefor respectively, do not state who was forced to vote for me, and what fraud contributed to my election, and who was intimidated, or in what manner, place, town, city, or county such intimidation was had, and to whom or in what manner promises of favor were made, and what votes and voters were bought or where and when such votes or voters were so bought, and what other corrupt and illegal meaijs were used by me and in my behalf, and by what illegal votes and ille- gal voting by my procurement or the procurement of those interested in my election you were prejudiced, and who were so interested, and in what election district, town, ■city, or county such persons reside and perpetrated such acts complained of. The statute provides : 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 officer or board of canvass- ers authorized by law to determine the same, give notice, in writing, to the member whose seat he 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. (Re- vised Statutes of the United States, page 18.) McCrary, in his Law of Elections, section 343, referring to this statr •ute, says: A good deal of discussion has arisen as to what is to be understood by the words "specify particularly the grounds on which he rjslies." It is evident, however, thait these words are not easily defined by any others. ■ They are as plain and dear as any terms which we might employ to explain them. Cases have arisen, and will again arise, giving rise to controversy as to whether a given allegation comes up to the re- ■quirement of this statute, and it must be for the House in each case to decide upon the •case before it. It may be observed, however, that this statute should receive a reason- DUFFY VS. MASON. 363 able construction, one that vrill carry out and not defeat its spirit and purpose. And perhaps the rule of construction which will prove safest as a guide in each case is this : A notice which is sufSciontly specific to put the sitting member upon a proper defense and prevent any surprise being practiced upon liim is good, but one which fails to do this is bad. (Wright vs. Fuller, 1 Bartlett, 1.52.) The Houses of Congress when exercising their authority and jurisdiction to decide upon " the election returns and CLualifications " of members are not bound by the tech- nical rules which govern proceedings in courts of justice. Indeed, the statutes to be found among the acts of Congi'ess regulating the mode of conducting an election con- test in the House of Representatives are directory only, and are not and cannot 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 jjrar tice and of course will be adhered to, unless the House iu 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. (Ihid., sec- tion 349.) While it is true that this statute should receive a liberal construction, yet it will not do to permit parties to disregard its provisions. The House, in sanctioning its violation in cases heretofore determined, has created precedents that are now frequently and pertinently cited to justify similar infractions. This practice, if tolerated, will finally result in the virtual abrogation of the statute. The only safe course to pursue is to require at least a substantial compliance with its provisions. We think that the notice of contest in this case is clearly insufficient. It is too indefinite and uncertain in its allegations. As was said in the case of Bromberg vs. Haralson (Smith's Digest of Election Cases, page 355^ — It is too vague and uncertain to be good. The statute requires that the contestant in his notice "shall specify particularly the grounds upon which he relies in his con- test." It is impossible to conceive of a specification of the grounds of contest broader or more genei-al in its terms. It tixes no place where any act complained of occurred. It embraces the whole district in one sweeping charge. This specification embraces three general grounds of complaint, not one of which possesses that particularity essen- tial to good pleading. But the contestee in this case is justly estopped by his own act and conduct from assailing the sufficiency of the notice of coiitest, and its defects have been by him waived. The record contailss the following agreement : UxiTED States of America: In the matter of the contested election of Joseph Mason, Representative-elect to the Forty-sixth Congress from the twenty-fourth Congressional district. State of New York: It is hereby stipulated and agreed, by and between Sebastian Duffy and Joseph Mason, contestees, through their respective attorneys, that all affirmative evidence heretofore given or which may hereafter be given be, and remain, in this contest as a part of con- testant's case, and that contestee, in consideration of this consent and stipulation on his part, have sufficient time after the expiration of the statutory limit of ninety days in which to give evidence in answer to such new matter so put in evidence, to the end that simple and exact justice be done to all parties, and that contestant have reason- able time to put in evidence in rebuttal only to such evidence as the contestee may give after said ninety days shall have expired. * * * Dated April 10, 1879. S. D. WHITE, Attorney fw Duffy. JOHN J. LAMOEEE, Aiiorney for Joseph Mason, Oswego County. D. N. WELLINGTON, Attorney of Joseph Mason for Madison County. That such defects may be waived has been determined by at least two decisions of the House. (See Otero vs. Gallegos, 1 Bartlet, 178, Brom- berg vs. Haralson, Smith's Digest of Election Oases, page 356.) 364 DIGEST OF ELECTION CASES. If these defects had not been waived we would feel fully justified, by reason of the insufficiency of the notice, in dismissing this case or ex- cluding the evidence offered in support of the alleged grounds of con- test; but in view of this waiver, we are compelled to examine the evi- dence and determine the merits of this contest. We will consider the grounds of contest as stated in the contestant's briefs and in the order in which they are herein presented, as follows: On tlie part of tlie contestant, it is claimed tliat a sufficient number of votes were ■withlield from liim and controlled by and cast for the contestee through bribery and the corrupt and illegal use of money by contestee, his agents and servants, and those working in his interest, with his consent, and through intimidation practiced by them, to far more than overbalance these majorities! The means and appliances used to bring about this result were: First. The system of bribery and intimidation established by Thomson Kingsford, the manager of the Oswego Starch Factory, a powerful corporation, by which the em- ployes of said Kingsford and of said Starch Factory Company, numbering nearly or quite one thousand voters, have been persuaded by steady employment, at good wages, or the hope thereof, and intimidated by the fear of being discharged from such employment and deprived of the same in future, to vote the ticket to which said Kingsford was favorable and on which contestee was a candidate. Second. The raising and expending large sums of money by the contestee and those acting in concert with him, with his knowledge and consent, in violation of the stat- utes of the State of New York, through the agency and instrumentality of the com- mittees of the political organization of which he was the candidate, for the purpose of illegally influencing the voters to attend the polls and vote for said contestee and tl^ candidates for other offlces running on the same ticket with him. Third. The expenditure of large sums of money by political leaders of the party of which the contestee was a candidate, at and about the time of the election, and in, giving employment to electors who were day laborers, with a view to exercise a con- trol over their votes as an incident of their employment. Fourth. Bribery of voters to vote for the contestee, and the buying of the influence- of persons controlling or supposed to control the votes of other persons, to procure votes for contestee, and other corrupt and illegal use of money practiced by the con- testee, his clerks, agents, servants, and attorneys, and those acting in concert with him, other than the regular committees of the political party of which he was the candidate, and with hia asselit and approval, in promoting his election. Fifth. That a large number of persons who were not legal voters voted for the con- testee, and their votes are credited to him in the count. [See contestant's brief, pages 2 and 3. ] I. That rumors have prevailed in the city of Oswego for many years past that Thompson Kingsford, and others connected with him in the management of the Oswego Starch Factory, improperly influence their employes to vote the Eepublican ticket is clearly shown by the evi- dence, and we have no doubt that many of these persons who have testified as to the prevalence of these rumors sincerely believe that such an influence is exercised. It is necessary for us to ascertain and deter- mine from the evidence the truth of these rumors and not their bare existence, as they may have been entirely unfounded and untrue. The charge that such a system prevailed at the time of the election in con- troversy must be established by competent proof, rendered by sworn witnesses, personally cognizant of the facts upon which the charge is based. All the witnesses examined by the contestant, except three, to whose evidence we will hereafter refer, frankly- admit that they have no personal knowledge of the existence of such a system, and that the only information possessed by them upon that subject was solely derived from these rumors and from statements made to them by persons professing to have actual knowledge of the facts, none of whom, excepting the three above referred to, were called by the contestant as witnesses to prove the truth of their assertions, while, on the other hand, the contestee DUFFY VS. MASON. 365 examined as witnesses a large number of the employes of the factory, who positively deny that any such system ever prevailed there, and declare that no improper influence has ever been brought to bear upon the employes affecting their political action, and that they do not know of an instance where persons there employed, and desiring to vote the Democratic ticket, have been deterred from doing so by fear or appre- hension that they might be discharged from employment should they •do so. It is our duty to reject all the evidence that has been oiftred relative to the existence of the rumors to which we have alluded, as it is clearly incompetent, and we must, for the same reason, discard all evidence re- lating to voluntary statements made by persons not under oath or wit- nesses, as all such hearsay evidence is inadmissible. The rule that we apjply in rejecting this evidence is stated in 1 Green- leaf on Evidence, page 115, thus : Hearsay evidonco is uniformly incompetent to establish any specific fact which, in its nature is susceptible of being proved by witnesses who speak from iheir own Icnowledge, That it supposes somelhing hetter that might be adduced in the particular cases is not the only ground of its exclusion. Its intrinsic weakness, its incompetency to satisfy the mind as to the existence of the fact, and the frauds which may be practiced under its cover, all combine to support the rule that hearsay evidence is wholly inadmissible. None of the evidence excluded by us comes within any of the excep- tions to the rule above stated, and this rule has often been applied by the House of Representatives in cases of this character. The application of this rule results in the rejection of all the evidence introduced by the contestant in support of the first ground of his con- test, save that rendered by Daniel Sweeney, Alexander Lemmon, and Hiram Hammond, all of whom were, at different times prior to 1878, employed in the factory, and who claim that they were discharged from their employment by reason of their political sentiments and affiliations. Daniel Sweeney testifies that in the fall of 1862, eighteen years ago, he was discharged by Kingsford because he refused to vote for Wads- worth, the Eepublican candidate for governor of the State of New York ; that he had worked in the factory for fourteen years continuously, and it was the only occasion that he was ever spoken to by Kingsford on the subject of voting. (See Eecord, page 202.) Alexander Lemmon testifies that in 1873 or 1874 he was requested by Kingsford " to go to the polls and peddle tickets for him," and that he was discharged from his employment because he was accused of "ped- dling Democratic tickets with the Republican heads on." (See Eecord, page 144.) Hiram Hammond testifies that in 1876 Kingsford expressed his desire that witness should vote for Hayes for President, which he promised to do, but voted for Tilden, and that in the latter part of December, 1878, at the close of the year's work at the factory, he was discharged from his employment. (See Eecord, page 987.) That he had worked at the factory " off' and on" for fourteen years, and that the occasion to which he alludes is the only time that Kingsford ever talked to him on the subject of politics (page 99-3). These are the only instances, extending over a period of sixteen years, where it is shown by competent evidence that Kingsford or any other person interfered in any manner with the employes of the factory in the free and unrestrained exercise by them of the elective franchise. There is no evidence in the record, that we have discovered, showing a single instance of such interference on the part of Kingsford or any other person connected with the management of thei factory, relating to the election in controversy. 366 DIGEST OF ELECTION CASES. It is proper for us to say that evidence has been presented by the contestee showing, or tending to show, that Sweeney, Lemmon, and Hammond were discharged for other than political causes, namely, that Sweeney was discharged on account of his intemperate habits (see Eecord, pages 209, 361), and Lemmonfor like cause and for gross neg- ligence (Record, page 535). Hammond admits on his cross examination that four other employes were discharged at the time of his discharge, two of whoms were BepuUicans, and that the cause assigned by the fore- man for their discharge was that the work was insufficient for the entire force then employed in the factory. (See Eecord, page 994.) If such a system does in fact exist, it is deplorable and merits the severest censure. Those engaged in such practices richly deserve the just contempt of all who love liberty and despise tyranny, and they should be punished by the State whose laws .they so grievously offend. But the evidence presented in this case is insufficient to authorize us as judges, governed by law, to declare that such a system actually pre- vailed in the Oswego Starch Factory, at least in 1878, If we accept as true the rumors that prevailed as to its existence, still the evidence is incomplete, as it wholly fails to furnish any data by which the number of voters affected by it can be ascertained ; and even excluding the ballots of all the voters then employed in the factory, which are esti- mated by witnesses at 150 to 200; it would not affect or change the re- sult of the election, as the contestee's official majority is 736. II. The contestant, in his brief (page 25), says : Under our second general heading, we call attention to the statute of the State of New York regulating elections ; the acts of the county committees of the party (whose candidate contestee was) iu violation of those statutes ; the privity of the contestee to those violations, and their effect upon the result of the canvass. That part of the statute in question which it is claimed was violated is found in volume first of Banks & Brothers, sixth edition of the Revised Statutes of the State of New York, on page 452, being §§ 6, 7, and 8, of title 7, chapter 6, part 1, of the re- vised statutes, and reads as follows : " J 6. It shall not he lawful for any candidate for any elective office, with intent to promote his election, or for any other person, with intent to promote the election of any such candidate, either — "1. To provide or furnish entertainment at his expense to any meeting of electors previous to or during the election at which he shall be a candidate; or, "2. To pay for, procure, or engage to pay for, any such entertainment; or, "3. To furnish any money or other property to any person for the purpose of being expended in pro(mring the attendance of voters at the polls; or, "4. To engage to pay any money, or deliver any property, or otherwise compensate any person for procuring the attendance of voters at the polls; or, "5. To contribute money for any other purpose intended to promote an election of any particular person or ticket, except for defraying the expenses of printing, and the circu- lation of votes, handbills, and other papers previous to any such election, or for con- veying siclCjpoor, or infirm electors to the polls. "§ 7. No person shall fraudulently or deceitfully change or alter a ballot of any elector, nor shall furnish, an elector any ballot containing more than the proper number of names, or cause any other deceit to be practiced with intent fraudulently to induce such elector to deposit the same as his vote, and thereby to have the same thrown out and not counted. " § 8. Every person offending against the provisions of this act shall be deemed guilty of a misdemeanor, punishable by iine not exceeding two hundred and fifty dol- lars, or by imprisonment not exceeding six months." We have carefully examined all the evidence introduced by both parties, for the purpose of ascertaining the amount of money raised and expended "through the agency and instrumentality of the committees of the political organizations " of which the contesting parties were the DUFFY VS. MASON. 367 candidates, and the pnrposes for whicli it was used, and we herewith present a synopsis of the evidence _upon the subject: Charles North testifies that he was the chairman of the Eepublioan county committee of Oswego County in the fall of 1878, and had the general charge of the conduct of the election on the part of the Eepub- lioan party, and that the committee obtained funds for the campaign by contributions from the Eepublioan candidates, office-holders, and other ^^joatriotic citizens," and that' these assessments were proportioned t» the supposed necessary expenses of the campaign, and that the pur- poses for which the committee were expected to furnish money was to pay the expenses of public meetings and speakers, distribute papers- and documents, print and distribute ballots on election day, and furnish a small sum to each town and ward committee for the purpose of get- ting the aged, poor, and infirm voters to the polls, and that money had been raised and expended by the Democratic county committee for the same purposes and in the same manner, and that this had been the practice of both parties as long as he has had any acquaintance with political affairs in that county. That such an assessment was made by the Republican county committee of Oswego County in the fall of 1878,. and that the contestee, as the Eepublioan candidate for Congress in that district, was assessed $200 by that committee, which he paid to the witness, as the chairman of the committee, and that it was used for said purposes, and no other (Eecord, pages 553 and 554); and that from ten to twelve hundred dollars had been raised by the committee in the fall of 1878 for said purposes that passed through his hands (Eecord,. page 557). James Dowdle testifies that he was the treasurer of the Greenback county committee of Oswego County ; that at a meeting of said commit- tee, at which the contestant was present, it was agreed that each candi- date should pay for printing tickets and handbills and circulating them^ and that no money should be raised except for those purposes; and that an assessment was afterwards made on that basis, and that contestant ' was assessed $50, which he paid, and that the money so raised by the committee, was used for said purposes. (See Eecord, page 975.) John A. Barry testifies that he was the treasurer of the Democratic county committee of Oswego County, and that all moneys raised by that committee for the purpose of carrying on the campaign came inta his hands as such treasurer, and that $140 was raised for that purpose^ and was used in paying for the printing and distribution of tickets in the county, and was raised by the assessment of. the committee upon Democratic candidates, and that the contestant was assessed $25, which he paid. (See Eecord, pikge 1037.) Edwin S. Barker testifies that he was the chairman of the Eepublioan county committee of Madison County. That the committee assessed the contestee $200 to pay campaign expenses, which he paid. That all the assessments made by the committee amounted to about $700. That the publishers of five Eepublioan newspapers published in the county received $30 each, making $150; and that each town in the county re- ceived from $20 to $50 for the purpose of procuring teams to bring in the indigent voters, and these were all the disbursements made except $10 paid to Colonel Canter, a Eepublioan speaker, to pay his fare to Au- burn. There are fourteen towns in the county. That $550, being the balance of the $700 remaining after paying $150 to said newspapers,, was distributed in these fourteen towns to be used in paying expenses in procuring teams and getting out the indigent voters, and to defray the expense in procuring speakers to address the people on the political 368 DIGEST OF ELECTION CASES. issues. That he never heard any talk or suggestion that any of this money was to be used to buy votes or for any illegitimate purpose. (Eecord, pages 921 and 922.) Alonzo E.- Cherry testifies that he was chairman of the Greenback county committee of Madison County during the campaign of 1878, and that there was money placed in his hands during that campaign to be used for political purposes ; that he received $200 of the contestant, be- ing the amount of his assessment made by said committee; that other assessments amounting to $265 were paid; that the money received on these assessments of the contestant and others " was all paid out for legiti- mate business, livery bill and man to travel, printing, furnishing Irish World and documents we had printed, and the TJtica paper. We dis- tributed from 1,000 to 1,200 of the TJtica paper weekly, 200 copies of the Irish World, besides a large quantity of other papers ; also, $40 for ■one meeting, hall, and band when Duffy made his speech at Oneida." {See Eecord, page 728.) Theodore Leonard testifies that the contestant paid to 'Mr. Lippitt, as chairman of the Democratic county committee of Madison County, -$100, for which sum he had been assessed by the committee. (See Eecord, page 259.) *^ By this evidence it appears that the contestee paid assessments to the amount of $400 and the contestant $375. That it was proper for the candidates to make contributions or j)ay these assessments is conceded by the contestant. The complaint is that a portion of the money so paid by the contestee was used by'the committees to whom it was paid for purposes prohibited by the statute, namely, "in procuring the at- tendance of voters at the polls" who were neither " sick, poor, or infirm," and in paying the expenses of public meetings and speakers. That some of the money was used for these purposes is clearly shown by the evi- dence. The contestant seeks to hold the contestee responsible for the acts of the members of the committees representing the Eepublican .party in the district who violated this statute, and in the absence of any proof showing, or tending to show, that the contestee directed or author- ized the expenditure of the money contributed by him for the purposes forbidden by the statute. A principal is not liable for the illegal acts of his agent, unless done at his instance, or with his knowledge and as- sent. Good faith and innocence are always presumed. If A intrusts B with money to be used by him for certain lawful purposes, and B, with- out the knowledge and consent of A, diverts the money from the pur- poses to which it was to be applied, and uses it for immoral and illegal purposes, A cannot be held liable for the misconduct of B. That the contestee had the right to contribute and pay to 'these commit- tees money to be used by them for purposes authorized by the statute is not controverted by the contestant, and in the absence of opposing proof the presumption exists that he did not authorize its expenditure for purposes prohibited by the statute. If the statute was violated its offenders are by the provisions of the statutis subject to punishment. Under the rigid, illiberal, and unreasonable construction placed upon this statute by the contestant, it is even unlawful for a candidate or his friends to rent a hall for a political meeting, procure music, or employ a speaker to discuss the political issues, because it may tend to promote the election of the candidate, and if such a meeting is held, in disre- gard of this statute, the legal voters who attended it are subject to punish- ment therefor by the forfeiture of their votes, regardless of the result that may have been j)roduced by the charms of the music or the elo- quence of the speak6r ; or if a legal voter, who is too indifferent or indo- DUFFY VS. MASON. 369 lent to attend tlie election, is conveyed tothe polls in a carriage provided for that purpose by the committee of the party of which he is a member, it affords sufBcient cause for challenging his vote to show that he was neither "sick, poor, or infirm," and that he was able to walk or pay for his ride to the polls. To so construe the statute is absurd. If the per- son who attends such meeting or is so conveyed to the polls is a legal voter his vote must be received and counted. We cannot punish legal voters by disfranchising them because members of political committees have possibly violated the statute, as construed by the contestant. The evidence wholly fails to show that the money was used to corrupt or improperly influence the voters. The supreme court of Xew York, in the case of Hurley vs. Van Wagner, 28 Barb., 109 (1858), in construing this statute, said: A person who pays money for his board, or railroad or steamboat fare, while going to or from a political meeting, or ivlw pat/8 for the use of a room for auch meetirign, or for the lights or attendance thereat, in one sense contributes money to promote the election of a particular ticket or candidate. But is it a contribution of money in the sense intended by the act? Did the legislature intend to prohibit and punish as a misdemeanor every expenditure of money which might indirectly promote or be intended to promote the election of particular candidates? Public meetiugs, large assemblies of the people, constant and almost universal intercommunication, one with another, and journeys from one part of the country to another, are the usual and customary means by which the election of particular candidates is made, and they necessarily involve the expenditure of large sums of mouey which may be said to be oontri buted. Is this the evil that the act was designed to suppress ? If it was, it may be safely said to have utterly failed of its object, for during the twenty -nine years it has been upon the statute book hardly one attempt has been made to euforoe it; and the evil practice, if it be one, has gone on and gained additional strength with each additional year. I infer, therefore, that these are not the contributions in money forhidden Jiy the act. If the payment of a sum of money for the use of a room in "which to hold a puMic meeting for polU teal objects, or for the lights used thereat, or for the attendance of a person to prepare such room and keep it in proper order, is a contribution of money to promote an election vnthin the meaning of the statute, so is the money a man may expend upon himself in the payment of tavern bills and the expenses of transportation, in going to and returning from such meetings, equally a contrib ution of money to promote an election ; because all such expenditures tend to the same result, and the money is disbursed for the same object, and that is to aid in the election of a particular candidate or ticket. It is not possible to dis- • criminate between them, so tha*; to adopt the construction claimed is to impute to those who framed the law the most absurd intentions, or to give it an effect which they could not have contemplated. Even if the law justified us in excluding the ballots of those voters who were conveyed to the polls, although neither "sick, poor, and in- firm," yet we would be unable from the evidence to compute their num- ber or determine for whom they voted ; nor could we ascertain from the evidence whether the orators, under pay, who addressed public meetings in rented halls, converted lukewarm Democrats or indifferent Repub- licans into "stalwarts," and, if so, what ones, or how many, III. The only evidence introduced by the contestant in support of this charge is that rendered by Eichard Grace, John C. Gooley, and David H. Judson, as follows: ElCHAKD GrRA.CE SWOm. 1. Question. What is your age, occupation, and residence? — Answer. Age, thirty- three ; occupation, mechanic ; residence. No. 10 Yates avenue, eighth ward. *« * * » * # 32. y . Do yon know whether the Oswego starch factory or Thompson Kingsford last fall at the time of the election were putting up or laying the foundation for a large building on West First street, in the city of Oswego? — A. Don't know personally. I saw Kingsford there superintending the work, and reputation sail he was the pro- prietor. H. Mis. 58 24 370 DIGEST OF ELECTIOK CASES. 33. Q. Wherewas this building you saw Thompson Kin gsford superintending lo- cated ? — A. On the west side of Oswego Eiver, on the block formerly known as the new hotel block, on the north side of Seneca street, between First and Water streets. 34. Q. Can yoii tell about how manymen there were at work on that building imme- diately before and after the fall election? (Objection as No. 13.) A. There were from two to three hundred men at work there at different times. 35. Q. Will you state whether there was a curretit general report in the city of O wego at the time ot the last fall election that Thompson Kingsford required all those men to vote the Republican ticket as a condition of being retained in employment ? (Objected as to No. 13.) A. It was so reported. 37. Q. In your testimony here given did you regard the men working upon that building as in the employment of the starch factory company? (Objection as to No. 13.) A. I did. 38. Q. At what time did they commence this building?— A. Some time last Sep- tember. 39. Q. State art what time, as near as you can, there were the most men at work on this building with reference to the time of election? (Objection as to No. 13.) A. The best of my recollection, about the middle of October. 40. Q. State whether about the same number of men were continued in employ from the middle of October uutil after election? (Objection as to No. 13.) A. There were. 41. Q. At about what time did they commence to reduce the number of men at work? (Objection as to No. 13.) A. A few days after election. (See Record, pages 186 and 187.) Deposition of John Clark Gooley. Witness being' duly sworn, deposition taken in pursuance of notice filed : 2151. Question. Where do you reside? Stateyour age, residence, and occupation. — Answer. Resides city of Oswego, third ward ; age fifty-seven years ; at present canal collector. 2202. Q. Do you know whether last fall, and.within a month or two before his elec- tion, Mr. Kingsford took into his employ a considerable number of other men engaged in the construction of a building in the city of Oswego? — A. I do. 2203. Q. Do you know how long they were continued in his employ after the elec- tion ? — A. I think they were kept until the neighborhood of December or into Decem- ber till it froze up. 2204. Q. Do you know about how many men? — A. No,Idon't; agoodmany; prob- ably seventy-five or more. 2205. Q. When was it, then, when you say you saw seventy-five men? — A. Sometime in October. 2206. Q. Do you know whether it was generally understood that the number was in- creased just before election? — A. No, sir. 2207. Q. Was there a current report that all the voters working on that building were required to vote the Republican ticket last fall by Mr. Kingsford or the bosses of his work? (Objected to as before; same disagreement.) A. After election, two or three times I heard that they had been called upon to vote the Republican ticket. I don't know anything about current report at all, for I wasn't out. 2208. Q. Who did you understand they had been called upon by ? — A. I understood that Mr. Kingsford had had them called upon to see how they were going to vote. . (See Record, page 118.) Cross-examination : 3107. Q. That building you understand Mr. Kingsford to be erecting for the occupa- tion of O. M. Blanchard &. Co. with their door, sash, and blind factory? — A. Yes. 3108. Q. That firm was burned out last summer, was it not? — A. Yes. 3109. Q. About how many men did you understand the firm of Blanchard & Co. to have employed in their business ? — A. I have heard from seventy-five to one hundred and fifty. DUFFY VS. MASON. 371 3110. Q. Did they not find, it difficult to find any place to occupy, and for that reason was it licit feared that they would leave the city? (Coimsel for contestant: I object to it as irrelevant and immaterial, and has been answered. Notaries disagree.) A. All I know is vfhat I saw in the papers. I saw it so stat' d. 3111. Q. And did you not understand that the committee on manufactures of the board of trade waited on Mr. Kingsford to induce him, if possible, to furnish a building for their occupation ? — A. I have no recollection of it. 3112. Q. Did you not understand that this building in question by Mr. Kingsford was commenced for that purpose? — A. Yes. 3113. Q. And did you not understand that from the commencement the work was pressed forward with all the force that could be profitably employed until it was stopped by the winter ? — A. I did. .3117. Q. Who said to you after the election that the men employed by Mr. Kings- ford on that building had been called upon by Mr. Kingsford to vote the Republican ticket, ? — A. I can't remember now. 311H. Q. Can you remember any time or place when anything of the kind was said? — A. I can't remember nowhere. 3119. Q. Can you swear that j'ou heard anything of the kind said before the trial of this contest began in this room a fortnight ago yesterday '! — A. I can, positively. 31i!0. Q. What was it you heard said ? — A. The remark 1 heard was that Mr. Kings- ford had had the men that was to work on the Blanchford building seen relative to voting the Republican ticket. That's all I did hear. 31'J1. Q. By whom was that remark made? — A. 1 can't tell you. 3I 'Q. Do you believe that the ballot-box was safe from interference during the ad- journment for dinner ? — A. I do. (The above question objected to by contestant's counsel.) JOHJST E. SPENCE. Deposition of John T. Pritchard. John T. Pritchard, being duly sworn, deposeth and saith as follows : Qilestioi. What is your age ? — Answer. I am thirty-four years old. Q. What is your occupation ? — A. I am a farmer. Q. Are you a resident of Camden County, North Carolina ? — A. I am, and have been all my life. Q. W6*6 you present at an election held on the 5th day of November, 187>i, for a member to the Forty-sixth Congress of the United States from the first Congressional district of North Carolina in South Mills township ? — A. I was. Q. Who, as inspectors or judges at said election, conducted the same? — A. JohnE. ■ Spence as registrar, and Evan Overton and Joseph N. Spence. Q. Were you, or were you not, appointed one of the inspectors of the polls on said day t^A. I Was not. I acted for a short time in registering a few names, but wa» not sworn in by any one. Q. During the short time that you acted, was there any one else except those yora have named above assisting as judge or inspector of the polls? — A. There was not. JNO. T. PRITCHARD. Deposition of K. R. Sawyer. Kenneth R. Sawyer, being duly sworn, deposeth and saith as follows : Question. What is your age and occupation ? — Answer. I am thirty-six years old, and am a farmer. Q. Were you present at an election held at South Mills, on the 5th day of Novem- ber, 1878, for a Representative to the Forty-sixth Congress of the United States for the first Congressional district of North Carolina ? — A. I was. Q. Who, as the judges or inspectors, conducted said election ? — A. John E. Spence, registrar; Evan Overton and Joseph N. Spence as inspectors. Q. Did yon, at any time, assist as inspector during the day, and, if so, under what oiroumstances ? — A. I did ; I assisted from about 10 o'clock until about a half an hour by sun. Q. Were you sworn in by any one as the law requires ? — A. I was not. Q. Do you, of your own knowledge, know whether any one acted in yonr plaice after you ceased to act about a half an hour by sun? — A. I do not. Q. Were you present at the counting of the votes ? — A. I was not. Q. During the time you were assisting in conducting the polls were there any votes challenged ; and, if so, did you aid in deciding the legality or illegality of the same ? ' — A. There were votes challenged, and I aided in the decision. Q. Was Evan Overton, the receiver of the votes, under the influence of spirituous liquors during the day of the election ? — A. I think he was. Q. Were the polls closed at any time while you were acting in the capacity of in- spector; and, if so, for what length of time? — A. They were cloted about one hour for dinner. Q. During that time what became of the box containing the ballots? — A. It was conveyed by Evan Overton, in company with myself and John E. Spence, to a rooili about seventy-five yards distant from the house where the balloting was conducted, and looked up by said Overton, who retained the key ; and after an interval of about one hour it was taken back again by said Overton, and the voting resumed. YEATES VS. MARTIN. 39'7 Q. Do you kno'wr of any voter or voters who were restrained ftom voting as they wished on the day of the election hy reason of an undue and unlawful influence f-rA. I do ; James Miller and Edmond Sawyer told me on the day after election that they ■came to the polls to vote for Jesse J. Yeates, but were influenced to vote for Joseph J. Martin by iusinuating language used by persons opposed to the election of Jesse J. Yeates. Of these, I tnink, they named two, to wit, Calvin Jones and Miles Knight. KENNETH R. SAWYER. Piitchard, who was appointed inspector, it seems, served for a short time, when Kenneth E. Sawyer took his pJace, who, according to the imi)ression of the registrar, continued to act until the polls were closed, but, according to his own testimony, acted "from about 10 o'clock until about half an hour by sun," which is meant until half an hour of sunset. Both Pritchard and Sawyer swear that they were not sworn. So far as the failure to open the i)olis seasonably is concerned, the fault, if there were one, was that of the Democratic registrar in not making seasonable provision for filling vacancies, and of the Demo- cratic inspector who was present and declined to serve; but perhaps no one was at fault. That contestant relies upon section 142 of McCrary •on Elections to the effect that if the deviations from the legal hours is great, the presumption is that it has affected the result, and the burden will be upon him who seeks to uphold the election to show affirmatively that it has not; but if the deviation is slight, then the presumption is that it has not affected the result. When polls are closed before the hour prescribed by law, it may be that voters, without any fault of their own, are excluded from voting, because they have a right to expect that the polls will be kept open ac- olitical parties ? ' (Question objected to; objection overruled.) A. The law does so require. Q. Did you appoint any of the inspectors from either party before the hour of 11 ; and, if so, from what party t — A. I did appoint two of the inspectors some time before 11 o'clock ; don' t remember the exact time ; they were both from the Democratic party. Q. Did you appoint any from the Bepublican party before this time; if so, did iHesf refuse to serve ? — A. I did appoint one ; he refused to serve. Q. Was not the polls prevented from being opened at au earlier hour on account of Bepublicans refusing to serve as inspectors ? — A. That was the reason that the polls were not open sooner. Q. Do you know whether any Democrats left the polls without voting before the polls were opened ? — A. I do know that some Democrats left before the polls were opened without voting. Q. Pid any one object to your opening the polls at 11 o'clock on account of jsome Democrats having left witnout voting, and for reasons that a fair election oonld. not be' had ? — A. There was such objection.' Q. Did any Democrats leave the precinct without voting and before you hai ap- pointed the Democratic inspectors f— A. The Demooaots had not left. H. Mis. 58^ 26 402 DIGEST OF ELECTION CASES. Q. Did you know about the difference between the number of votes registered at that precinct iind the number of votes cast at that election ? If not the exact num- ber, about what was the number that failed to vote t — A. About sixty. Q. What do yon mean by sixty? — A. I mean that sixty is the difference between the voters registered and the votes cast. Q. Did the Republican party poll about its usual vote at that election at that pre- cinct t — ^A. It did. Q. Was almost the entire falling off of voting at this precinct on the part of the Democratic party t — A. It was. Cross-examined by defendant : Q. What h nir did you go to the place where the polls were to be opened T — A. Alioufc 7 o'clock. Q. Who did you find there! — A. I do not remember at present. Q. How many persons were present? — A. Five or sis. Q. How long did you wait before you topk steps to supply the place of the absent inspectors f — A. About one hour. Q. How many Republicans did you apply to to act as inspector?— A. I only applied to one, that I remember. Q. Did he refuse ?— A. He did. Q. Did he assign any reason for his refusal ? — A. The only reason that he assigned was that he did not care about it, and thought that I could get somebody that would do better ; he could not read and write. Q. Was this person a white man or a colored man ? — A. He was a colored man. y. Did the persons who left the precinct before the polls were opened know that Bteps were being taken to open the polls J-^A. They did. Q. How many came and left before the polls were opened t — A. I suppose about tea or fifteen. Q. Were they all persons who voted the Democratic ticket? — A. I think they were. Q. Did you then or previously hear any expression among the members of the Dem- ocratic party voting at that precinct of dissatisfaction with the nominee of that party after he was nominated f (The plaintiff's counsel objects on the ground that witness cannot state general rumors, but can only state what voters at this precinct said on the day of the election to him, the witness. Objection evermled.) A. I did not hear any objection then or at any othsr time. Q. Who made objection to your opening the polls at 11 o'clock? — A. I do not re- member at this time. Q. How many so objected ? — A. I think two or three; Q. How many registered voters were there in Vandemere precinct at that elec- tion ? — A. I do not remember, but about one hundred and sixty, I think. Q. Was there a general turnout of the Democratic party at that election ? — A. I don't think there was a general turnout. Q. What kind of weather was there on that election day? — A. I think it was fair weather. Q. What was the condition of the roads? — ^A. Pretty good. Q. Did you, on discovering that parties intended leaving without voting, remon- strate with them ? — A. I think I did. Q. What did they reply ? — A. I do not remember. Q. Did any Republicans leave without voting? — A. I don't think they did. Q. At what hour did the polls close that day ? — A. The polls closed at sunset. Q. Did every person at the polls have a fair and free opportunity of voting after the polls were opened ? — A. They did. Q. Was there any crowding, disturbing, or intimidation used to prevent vot-ers from voting ? — ^A. There was none. Q. Did any persons apply after the polls were closed to be allowed to vote ? — A» No. Redirect examination by plaintiff's counsel: Q. How long did these Democrats remain at the polls before 11 o'clock, and after they found out that steps were being taken to appoint inspectors, and if the witness did not say to them that he thought it doubtful and was afraid that he would not be able to procure Republican inspectors for this election? — A. I don't know how long they remained. I think some of them were there an honr or two after they knew steps were being taken to open the poll ; some staid until near the time the polls were opened. I do not remember anything that I said to any one concerning the opening the polls. I think it was very likely thiit I did say something in regard to the poll* not being opened that day. Q. If the reason why on this day af eljBction there was not ageneral turnout of the Democratic party was not because it vfae rumored that there was being no electioB YEATES VS. MARTIN. 40S^ held at that precinct ? — A. I think that was the reason why there was not a generaE tnrnout of the Democratic party. Q. If, before these Democrats left the polls, you had asked other Republicans to- be inspectors besides this colored man, and if these did not refuse? — A. I do not re- member. Q. What ticket do you generally vote ? — A. The Democratic. Q. What political partv do you generally vote with ? — A. The Democratic. H. C. HOLTON. The deposition of F. P. Gatlin, clerk on the day of election, is as fol- lows : Deposition of F. P. Gatlin. F. P. Gatmn personally appeared before nie, J. H. Miller, clerk superior court of" Pamlico County, North Carolina, and commissioner to take depositions in the casfr of Jesse J. Yeates against Joseph J. Martin, being duly sworn, deposeth and says: I am a resident of Pamlico County, North Carolina; age, thirty-three years, and was clerking at Vandemere, N. C, the 5th day of November, 1878, at the store of John R.. MeCotter. I was clerk there on the day ofelection for Congressman, Jesse J. Yeatiss, Joseph J. Martin, and John B. Respass being candidates. The polls were held at John B. McCotter's store. The polls were opened on that day at llj a. m. ; this I knew by- looking at my watch. I wished to know. (Motion here made by defendant's counsel that the witnesses for iilaintiff, except the one on the stand, leave the room. Objected to by plaintiff's counsel. Motion, overruled.) Question. Why did you wish to know ? — Answer. I wished to kuow because I- thought it illegal. Q. Do you know how many persons left the precinct before the election com- menced? — A. About six, of my belief ; and these were Democrats. Others might hav& left and I not have known it. Q. Was this a full election ?— A. It was not. ( , Q. Was the Republican vote full at that election? — A. I think it was. Q. Was the Democratic vote at that election full? — A. It Avas not. Q. Was there any general rumor why the voting was not full at this election f (Defendant's counsel objects; objection overx-uled. ) A. There was at this precinct. The reason was just this, that the voters, so many- of them leaving before the polls being opened, that we, a few of us at Vaudomerey thought that this was the reason that the Democr.-its did not turn out. Q. Did you ever hear any voter of the Vandemere precinct state that the reasoiE why he did not vote at this election was because the understanding in the country- was that their was no election being held there on that day, and was this voter a> Democrat ? (Defendant's counsel objects, unless the answer be confined to expressions before or on the day of election ; objection overruled.) A. I think I did hear one man say he should have come but he did not think theres- wonld be any election ; and this man was a Democrat. ' . Q. Did you or do you know of any one trying to get Republicans to act as inspect- ors, that the polls might be opened at an earli%r hour than they were ; ami, if so, do- you know the reasons they gave for refusing to act? — A. I did nottry, but Mr. Holtoni did. We wanted to know if anj' Republicans were there, and none would acknowl- edge that they were Republicans Q. Did any of those parties afterwards vote ; and, if so, what ticket did thoy vote ? — A. They did vote. I am not positive what ticket they voted, but they were Repub- licans. Q.Did not Mr. Holton, the registrar, make a public proclamation or ask publicly;, if there was any Republicans present, if they would not act aa inspectors, before it o'clock a. m. ? and, if so, state if when the inquiry was made there was not Repub- licans present. — A. He did, but they would not acknowledge they were Republicans,, but they were Republicans. Q. How long have you been a resident of Vandemere precinct, and do you know how the precinct stood in regard to parties at this election ; whether it was a Demo- crat or Republican precinct ? — A. I have been there seven years ; it has heretofore, up< to the last election, gone Democratic. Q. Are you generally acquainted with the politics of the voters of this precincir ; and", if so, what was its politics at the time of the election in November, 1878, according to> your best knowledge and information ? — A. I was, up to the election of 1878, aoquaintecE with the politics of the precinct, and to the best of my knowledge it was Democratic- In 1878 I think it would be a close vote. 404 DIGEST OF ELECTION CASES. Q. If at and from the time of the uominatiou of Mr. Martin by the Kepublicao pairtji if there was not some disrfatisfaction in the Eepublican party at that precinct against Mr. Martin ? — A. I do not know. Q. Was not John B. Re^pass a candidate for Congress at thiaelectlon and an Indo-^ pendent Eepublican, and did he receive any votes at this precinct? — A. He, Respaaa, Tvas an Independent Eepublican caudida/te. I think received a vote or votes. Q. Was not the feeling of tlie Democratic party of that precinct strongly in fav^or of Mr. Yeates? — A. I think it was ; I am a Democratic voter at that precinct. FEANCIS P. GATLIN. Holton's (the registrar) testimony is that he got enough men from both parties to serve as inspectors at Or near 11 o'clock. The polls were opened at llj o'clock (Gatlin). The other depositions in this precinct are, Caldwell, page 19; McCot- ter, page 21 ; Big^s, pages 22, 23 ; Patrick, page 23 ; Muse, page 23 j Uiggs, page 24 ; Jones, page 24 ; John C. Muse, page 25 ; James Muse^ page 25 ; Bland, page 25. It is evident that the reason of the delay in opening the polls was the, absence of some of the judges of election, and that the registrar endeav- ored to appoint judges, but did not succeed in making the appointments xmtil about 11 o'clock; that the intention to have an election was never Abandoned ; that the persons who left the precinct before the polls "were opened knew that steps were being taken to open the polls, and that the registrar thinks he remonstrated with the persons who intended' to leave without voting, and says that every person at the polls had a. iair and free opportunity of voting after the polls were opened, and that 1;her(^ was no crowding, disturbance, or intimidation, and no person of- fered to vote after the polls were closed. Under the statutes of North Carolina, which provide for filling vacan- ■cies, as has been said, some delay is inevitable, and when the registrar is present and is endeavoring to fill the vacancies it is the duty of the '^'ote^ to wait, and if he leaves before there is a formal announcement by the registrar that there will be no election held, or before the holding of an election has been manifestly abandoned, he leaves voluntarily, and liis vote cannot be counted. If it becomes important to determine how many persons left before ihe polls were opened, reference is made to the following testimony : Bolton, the registrar, says : " I suppose above ten or fifteen ; " and he thinks they were all persons who voted the Democratic ticket. Gatlin, the clerk, says, "About six, in my belief; and these were Democrats. Others might have left and I not have known it." McCotter says " five." The witnesses who swear that they left, or did not go to the polls, under -^ belief that no election would be held, and that they would have voted for Yeates, are Jesse Riggs, page 23 ; Patrick, page 23 ; John W. Muse, page 23; James Eiggs, page 24 ; Joshua Jones, page 24; Seth Muse,' fjage 25 ; John C. Muse, page 25 ; Joshua Bland, page 26 — eight in all. In any view, this is all the injury that we find has been done to Mr. Yeates by the delay in the opening of the polls. The charge of conspiracy and fraud on the part of the Republicans to prevent the opening of the polls is not sustained by the evidence. None of tiie regular inspectors were present at the opening of the polls, and only five or six persons. The registrar appointed two Democratic in- spectors, who accepted, and one Republican, a colored man, who declined, because he could not read or write, and this is the only person he applied, to that he can remember until he made the Republican appointments. ^Gatliffl, the DemoCTatic clerk, says there were Republicans present, but they would not acknowledge they were Republicans ; but Caldwell, a Democrat and poll-holder, says, pages 20, 21, that the registrar tried on© YEATES VS. MARTIN. 405 Republican, a colored man, who assigned as a reason for not acting that he thought the registrar could do better, as he could not read and write^ and that at 10.30 o'clock there were perhaps fifteen persons assembled^ none of them Eepnblicans, so far as he knew. This was a small voting precinct ; the voters assembled slowly, and the delay in opening the polls was, Under the circumstances, natural enough. HAMILTON PEECINCT. At this precinct the votes returned are 161 for Yeates and 225 for Martin. The contestant contends that the vote of Hamilton precinct shoulcl not be counted on account of the conduct of contestee " discharging th& duties of registrar, checking off the names of persons who presenteql themselves to vote, and doing other and like duties of that office." The other objections found in this notice of contest in regard to Hamiltou precinct were abandoned at the argument. All the evidence on this subject is as follows : Deposition of Everitt (page 42). Justus Everiit, being duly sworn, says, in response to the following question in wilting : / Question. State whether you wefe present at the election in Hamilton, in Martia ©ounty. North Carolina, on the 5th da^ of November, 1878, at which election Jesse J. Yeates and Joseph J. Martin were candidates tax a seat in the present Congress of tho United States, and what acts, if any, the said Martin did in reference to the conduct- ing and managing said election. State fully his acts and conduct at said election. — Answer. I was there a part of the time, and Mr. Martin was also present and had charge of the registration books, and had charge when I left, which was in a few- minutes. Cross-examined : Q. What Mr. Martin did, was it done in the presence of the poll-holders t — A. It was. Q. Did Mr. Martin act corruptly ? — A. Not that I know of. JUSTUS EVERITT. Deposition of J. G. Carraicay, Jonathan G. Carraway, being duly sworn, says, in response to the following qnestion in writing : Question. State whether you were present at the election held in Hamilton, in Mar- tin County, North Carolina, on the 5th of November, 1878, at which election Jesse J. Yeates and Joseph'J. Martin were candidates for a seat in the present Congress of the United States, and what acts, if any, the said Martin did in reference to the conduct- ing or managing said election. State fully his acts and conduct at said election. — Answer. I was present on the day of election spoken of; Mr. Martin was present around the polls, and I saw him check off some of the registered names of voters as they voted ; and my impression is that at one time he came around the counter where the judges of election were, and while on the side of the counter where the judges of election were I think he did not check off any names while there ; and when he cttee{ked off names he wae on the side of the counter where the people came up to vote. FunSer this deponent saith not. Cross-examined : Q. How many names did Mr. Martin check off the poll-book? — A. I can't say posi- tively, but I think he checked off some forty or iifty. Q. Was the checking off done in the presence of the poll-holders ?— A. I thi nk ii vras, or a majority of them. Q. IDid Mr. Martin act corruptly in checking off' the names ? — A. Not that I kn ow o£. Q. Who received the votes ?— A. W. K. Gladson. Q. Was any man's name deposited in the box before his name was checked off of the poll-book ?— A. None that I know of. 406 DIGEST OF ELECTION CASES. -Q. Were you one of the judges at said election?— A. I was acting as registrar for JAt. Justns Everitt, who was the legally appointed registrar. Q. Was the election conducted fairly? — A. So far as I know. (The counsel for the contestant objects to the above npon the ground that it is going unto new matter.) Q. What party do yon belong to? — A. To the National Democratic partj-. Q. Who did you -vote for ? — A. I voted for Jesse J. Yeates. (The counsel for the contestant objects to the two above questions upon the grounds of the firNt objection, as being immaterial or irrelevant.) Q. How was the party dividedof those votes that was checked oif by Mr. Martin ? — JV. I don't know. J. G. CAERAWAY. The statute of North Carolina, sectiou 5, chapter 275, Acts of 1877, as — * * * If any registrar shall refuse or neglect to perform his duties the justices of •tlie pp.Tce for the township may remove him and appoint another iu his place. And DO person who is a candidate for any office shall be a registrar, or judge, or inspector -of an election. It is not contended that Mr. Martin was appointed either registrar, or Judge, or inspector of elections. So far as appears, these offices werie all ifilled by other i)ersons, who were present and performing their duties. IMr. Martin acted in the presence of the poll-holders. Mr. Carraway was Tthe acting registrar. Mr. Martin checked off some names on the regis- tration book when on the side of the counter where the people came to trote, and at one time came around the counter where the judges of elec- rtion were, but did not check off any names while there. Then it seems 4hat he did not act corruptly, and that the election was fairly conducted, ;:^nd that he took no part in receiving votes or keeping the poll-book, and. ithere is no evidence that any person was permitted to vote who was not entitled to vote, or, being entitled, was prevented from voting, or that .any votes were improperly received orcouuted, or that Mr. Martin's con- duct had any effect whatever upon the election. This conduct of Mr. Martin may have been an act of indiscretion, but, in the absence of any levidence that it produced any effect upon the election, we do not think that any weight should be attached to it. PEOVIDENCE TOWNSHIP. The returns from Providence Township were rejected by the county canvassing-board of Pasquotank County for the reason that the returns were delivered to the board by the registrar and not by one of the judges «f election. The returns showed that Mr. Yeates had received thirty- mine (39) more votes in this precinct than Mr. Martin (page 14.) Thecon- testee admits that this objection is not sufflcieat to justify the committee an rejecting this return, but insists that, if counted, the returns from aSalem precinct should also be counted. Section 21, chapter 275, Acts of North Carolina of 1877, is : The JHfl ges of election in each township, ward, or precinct, sliall appoint one of their ■v.umbi!r to attend the meeting of the board of couuty canvassers as a member thereof, .and shall deliver to the member who shall have been so appointed the original returns, statement of the result of the election in such township, ward, or px-ecinct ; and it shall be the duty of the members of the several township, ward, or precinct boards j}f election to attend the meeting of the board of cotinty canvassers for such election fin the county in which they shall have been appointed as members thereof. And by section 23 a majority of the members shall be sufficient to •eonstititte such board. While for certain purposes the registrar and judges of election act together as a board of election, yet there are cer- iaiu duties which by statute pertain to the registrar alone, and certain YEATES VS MAKTIN. 407 otkers.wjiich aloue can be performed by the judges of election. If the registrar retuses or neglects to perform his duties, the justices of the peace may remove him and appoint another in his place ; but if the judges of election fail to attend, the registrar shall appoint some dis- creet person to act as such. We thiuk, therefore, that section 21 re- quircwS tlje judges of election to appoint one of their own number to at- tend the said meeting of the board of county canvassers and deliver the returns j that the registrar is excluded, and that a registrar could not act as one of the board of county canvassers, and is not the person designated by law to deliver the original returns to such board. But if the returns be delivered by any person, and it be shown to be the true return, we know no reason why it should not be counted, and it is not disputed that the returns from Providence Township truly showed that Mr. Yeates had 39 votes over Mr. Martin. We think these votes should be counted for Mr. Yeates. This is the case made by the contestant. The contestee in his counter allegations contends that votes in addi- tion to those returned for him should be counted for him in Salem pre- cinct, in Meriy Hill precinct, and in Goose Kest precinct. SALEM PRECINCT. T^e votes cast at this precinct were : for Yeates, 29 ; for Martin, 164; for Respass, 7 ; Martin's plurality 135. The returns were rejected by the boaid of county canvassers, it is alleged, on the same ground as the returns from Providence was rejected, to wit, that the registrar, and not one of the judges of election, was appointed to deliver and did deliver the original returns to the board (page 56). The following is the testi- mony on this point: Q. State wliether you were a member of the county cauvassing-board for the county of Pasquotank, who canvassed the returns from the several precmots in said county at *aid election. — ^A. I was registrar of the election iit Salem precinct, and brought the re- turns of the election from that precinct to the county can vassing-board of said county at the request and by the direction of the poll inspectors who conducted the same, and claimed The right to act as a member of said returning-board, but by a majority vote of the board I was not allowed to do so. Q. Weie you present when 8ai.irty and elected by the votes of both parties. I was county commissioner for two years, from about 1872 to 1874. I was nominated by the Republican party and was elected by the votes of both parties. I was a justice of the peace from abont 1872 to 1874, or about that time, by appointment of clerk of the superior court to fill a vacancy. I was elected a justice of the peace by both parties soon after reconstrac- tion. Iu 1875 1 was appointed by the county commissioners sherilf of the county to fill the vacancy of .lohn T. Price, sheriff, aiirl 1876 I was nominated by the Repub- lican party for sheriff of the county and was elected. Q. For whom did you vote for Congress at the November election, 1878 1 — A. I voted for Joseph J. Martin. Direct examination resumed : Q. What is the usual majority of the Republicans at Salem precinct ? — A. From one hundred to one hundred and fifty. The ■witness, James S. Wilcox, desires lo make the following corrections : Upou reflection and examination of the records of the court, there were but. two magistrates in Salem Township ou the day of said election, instead of three, as stated. And one of the six men, as stated, going away without voting, he believes, afterwards returned and vot«d. JAMBS S. WILCOX. Sworn and subscribed to before me, having first been read over to the witness, this the 8th dav of November. A. D. 1879. MILES COMMANDER, Cleric Superior Court Fasquotavh County and ex officio Notari/ fuhlio. Deposition of J. S, Lister. J. S. LiSTKR, being duly sworn, deposes and says, in answer to interrogatories, as ■fellows : liy counsel for coutestee : Question. State your name, age, residence, and occupation. — Answer; My name i« Joshua S. Lister; my age is forty-two years ; residence, Salem Township, Pasquotaofc County, North Carolina ; occupation, merchant and farmer. Q. State what counection, if any, you had with the election held at Salem precinot, Pasquotank County, on the first Tuesday in Novei,.iber, 1878, and state such facts a« are witliiu your knowledge in regard to the same. — A. I was appointed registrar tor that precinct. I registered the voters within the time prescribed by law. I waa sick on the morning of the election and unable to attend to any ofiicial business, and I sent the registration book by the first trustworthy party that I saw to the Salem polling place Mt about half an hour or an hour after sunrise. I sent the book by John Swaia, sr., and knowing that his t«am was slow, directed him if he saw any one going faster than he could to place it in their hands to be delivered to Mr. Godfrey. I lived six miles from the polling place. (Qu(!.stion and answer objected to by contestant's counsel ou the ground of irrele-, vaucy.) Q. Do you know who was appointed as registrar in your place, if any oue was so {qJltoiuted? — A. I think J. S. Wilcox was. (Question and answer objected to by contestant's counsel on the ground of irrele- vancy. ) Q. Wits the appointment of James Q. Wilcox as registrar satisfactory to you, and did it meet with your approval? — A. I would have acquiesced iu any appointment Mr. Godfi'ey made; this appointment was satisfactory to me. (Question and answer objected to by dontestant's counsel on the ground of incoui- petency and irrelevancy.) Q. Do you know the number of justices of the peace in Salem Township at the time of said election? If so, please give the number and names. — A. There were two, F. M. Godfrey and myself. YEATES VS. MARTIN. 411 Cr(w.t-cxamina.tion : ,Q. nidvdii direct Mr. Godfrey to appoint J. S. Wilcox registrar for Salein precinct ■ft)r said elcctiou, or did yon take any part iu his appointment ? — A. No. (Quest mil aud answer objected to by contestee's counsel on the ground of immate- riality.) Q. What is the usual Democratic vote of Salfem precinct ? (QiieHtii)ii objected toby contestee's counsel on the grounds of incompetency, irrele- vancy , and that it is not in rebuttal of anything brought out on the direct examina- tion.) A. I do n t know. > Q. Whiit is the usual Republican majority at Salem precinct in said county? — A. I don't rfnieniber Q. Do yon remember whether the Republican majority ever run np to one hun- dred ? — A. I do not. Q. What was the vote for Congress in 1876 at Salem precinct for .T. J. Yeates, Dem- ocrat, and McD. Lindsey, RepuWican ? (Qm^Ntion objected to by contestee's counsel on the ground of irrelevancy.) A. It appears from the paper which I hold in my hand, purportingto be the returns from Siiiein Township, that Jesse J. Yeates received 133 votes and D. McD. Lindsey receivi'd aoi. Q. Kroni the same paper which yon hold in yonn hand, from which the vote of Yeati'x and Lindsey is tak^n, what is the vote of the Republican and Democratic Presidcnli il electors, respectively, at Salem precinct? (Question objected to by contestee's counsel on the ground of irrelevancy and in- corapetpju^y.) A. The Republican electors received 217 and the Democratic electors 137 votes. Q. Hh,V(' you any doubt from the signatures to the paper which you hold in your baud, tli:it it is the gennlne returns from Salem precinct for 1876? (Question objected to by contestee's counsel on the ground of incompetency.) A. I have no doubt that this is the correct return. J. S. LISTER. This VtistimoDy shows that the polls were not opened until 12 o'clock m. ; that J. S. Lister was the regularly appointed reg^istrar ; that he was sick on the morning of election, and that he sent the registration books by the first trustworthy person he saw about half au hour or an hour after sunrise to the Salem polling place, with directions that they be delivered to Mr., Godfrey; that about half-past 10 or 11 o'clock the registration books were received, with the message that Lister was sick and unrible to attend, whereupon Mr. Wilco'x, who appears to have beeni elected sheriff in 187(i, took his horse and went to Mr. Godfrey's, the nearest magistrate, with Mr. Lister's statement, and thereupon Godfrey appointed Wilcox registrar for said election, and Wilcox returned Imme- diat^-ly and opened the polls ; that he was not sworn as registrar ; that the judges and inspectors were sworn by him, but that he had no au- thority to administer an oath, unless this appointment as registrar gave him such authority; that the number of magistrates in Salem Towur ship on the day of election was two, Mr. Godfrey and Mr. Lister; that Mr. Lister did not direct Godfrey to appoint Wilcox registrar, but that be would have acquiesced in any appointment Mr. Godfrey made, and that the appointment of Wilcox was satisfactory to him; that as many as twenty-five or thirty persons left the preciuct before the polls were opened, and did not vote ; and that, in the opinion of the witness, more of tliese would have voted fl On the night preceding the election, and after the judges at Goose Nest had rendered their above decision, J. T. Hyman, a Democrat, the registrar at Goose Nest, in company with one J. T. Weldo, the person who had called the attention of the judges to the said twelfth sectiion, and one Boyle, went to Hamilton precinct and asked the Hamilton registrar to issue the required certificates of erasure to a number of electors, most of whose names were upon a list presented by them, com- prising between one and two hundred names, for which electors the required certificates were issued by the Hamilton registrar, taking until about 10 o'clock that night to get through the list. Besiiles these, iibout a dozen electors applied in person for such certificates and obtained them. Hyman, the registrar at Goose Nest, before 12 o'clock that night, marked the word " certificate" opposite the names of the above-named electors in his registration book, and opi)osite the names of the other electors, whose names had been transferred to his book from the Ham- ilton book, he placed a cioss mark. Those whose names were marked opposite with the word "certificate " were allowed to vote iieit day, and those marked with a cross were refused, singly, as eacl) i)reseuted his ballot. The electors so refused their votes then applied on electiou day, through one W. A. Johnson, an elector, to the registrar of Hamilton precinct for the certificates required, and the said registrar refused to give them the certificates (page 75). These electors were the same persons who had tendered their votes for Martin as Representative in Congress. Upon this state of facts the contestee contends that he is entitled to have counted for him the votes thus oti'ered and illegidly refused ; or> to have rejected the 132 majority already counted for tiie contestant at this precinct on these grounds : I. Unless the transfer tif the names of electors at this precinct from the registratiou book of Hamilton to the registration book of Goose Nest was valid as a registration ■withont an.v personal act on the part of electors, no one of these electors was legally registered at the precinct ; for it is not in evidence that any one applied in person to be registered and took the required oath. The fact that an oath is re<(uired an a pre- requisite to registration makea registration a personal act, which cannot lie perfurmed by proxy. If, as contended by contestant, a certificate of removal of residence from Hamilton precinct and erasure from the registration boob of that precincr. was a pre- requisite to registration in Goose Nest precinct, then, under section 12 of the North Carolina election law, such certifleate was required to be presented in person previous to registration anew at 6oo«e Nest ; arid the law expressly requires that such {ires- entation shall be accompanied with the oath of the elector that he is the identical person named in the certificate, and also by the general oath set forth in section 1"2. Itjs not pretended that any of the electors for whom snch eerciticates were taken out presented them in person or took the required oatbs. Indeed, the contrary appears. (See Record, page 71.) And it does not appear that those for whom certificates were taken out by proxy either authorized the application for them or even knew that the certificates had been applied for or taken out tor them until informed of the tact at the polls. II. It' such certificates were a prerequisite to registration, then the granting of them on the day of election would have entitled the holders to register on that day, because they would in that case " become on that day entitled to register," as re- quired in the thirteenth section of the election laws of North Carolina. YEATES VS. MARTIN. 415 III. The application for these certificates, made for these electors on the day of eleetion, and refused, was a complete compliance, on their part, with the ruquirements otrthe law as jntppreted by the judges ot election, and entitled them to vote as fully as if the certificates had been granted and they duly registered. See act of May 31, 18?0, see. 3 (U. S. Statutes at Large, vol. 17, p. 140). IV. But really these certificates were not necessary at all, and they were not even authorized to be issued under the twelfth section of the North Carolina election law. It is evident that the twelfth section was meant only for such electors as should change t/teir residence from one township or precinct to another; and therefore has no refer- tenoe to the case in hand, where none of the electors in question had changed their residence. This is plain from the fact that each certificate is required to state that "the elector has removed from the said township or precinct." It is still plainer from the f3,ct that such certificates were only for the purpose of enabling registered voters who had removed " to register again in another ward, precinct, or township." Bnt their registration at Goose Nest had already been completed under sec. 6 of the North Carolina law, the proceeding under which section is, declared to be for the ex- press pui-pose of not "requiring such electors to be registered anew." We think the last grotmd at least is well taken, aud that the statute 80 far as a certificate is concerned has no application to such a ca.se as this is. The certificate required is " a certificate of the registrar of the former townshij), ward, or precinct that said elector has removed from said township, ward, or i)recinct, and that his name has been erased fipom the registration books of the ward, towaship, or precinct from which he has removed^ None of these electors whose votes were re- fused had removed from any precinct, but by the re-establishment of Goose Nest precinct, without any removal on their part, they became resident in that precinct, and as the registrar had properly put their names on the registration books of Goose Nest pursuant to section 6 of the act of March 12, 1877, we think their votes should have been re- ceived, and having been illegally rejected should now be counted, and we find the number to llave been at least 120, which should be added to Mr. Martin's vote. Martin's returned plurality 51 Add plurality for Martin in Salem precinct, not counted 135 Add votes rejected in Goose Nest precinct, at least 120 30a Subtract Yeate^'s plurality in Providence Township, not counted 3^ Martin's plurality - . 267 If to this is added the votes cast for Mr. Martin in Merry Hill pre- cinct, and rejected, to wit, 108, th« plurality of Mr. Martin is 375. We recommend the passage of the following resolutions : Resolved, That Joseph J. Martin, the sitting member, is entitled to his seat in this House as a Eepresentative in the Forty-sixth Congress from the first Congressional district of North Carolina. Resolved, That Jesse J. Yeates is not entitled to a seat in this House as a Representative in the Forty-sixth Congress from the first Cougres- sional district of North Carolina. W. A. FIELD. J. WAliRBN KBIFER. J. H. CAMP. E. OVERTON, Jr. W. H. CALKINS. 416 DIGEST OF BISECTION CASES. ANDREW G. CUETIN vs. SETH H. YOCUM. Twentieth Congbe^sional District of Pennsylvania. The principal questioa in this case is whether all the clauses in the new con8titnti(?n and laws of Pennsylvania relating to "snffrage and eleotione," and espeoiaJiy those prescribing the qualitioations of electors, are mandatory, and thertefote not to be deviated from in any particular, or whether some of them are mandatory and others directory merely Seld, That the provisions of the constitution (Pennsylvania) relating to the registjcy of voters is not mandatory in so far as it affects the right of a non-registered voter to vote, if he is otherwise qualified, the constitution providing : " But no elector shall be deprived of the privilege of voting by reason of his name not being reg- istered." Seld, That the election law requiring a quoilifled elector to produce his own affidfivjet and that of a voterof his election district to his qualifications is directory merely. If the elector refuses to com.ply on being requested, the vote should be refused, because he refuses to obey a reasonable regulation, and he hurts no one but hi;B^- self. But if he is allowed to vote without being required to file the affldavita, and is otherwise qualified, his vote is not an illegal one. Meld, That where the law requires several acts to be done by the officers of eleotioPi as (1) to ascertain whether a party offering to vote was registered ; if he was not, (9) to require an affidavit of himself and a registered voter ; (3) to see that it wa* subscribed and sworn ; and (4) to keep it till the election was over, and theo iffr turn it to the prothonotary's office with certain other papers, and the last act ws^i not performed, does not show that the rest were left undone, nor must they be pr9r ■ sumed not to have required the affidavits at all. The House adopted the minority report May 11, 1880. Mr. Galbcins submitted the following as the VIEWS OF THE MINOBITT: It was admitted in armament in this case that one of the controlling questions is whether all the clauses in the new constitution and laws of Pennsylvania relating to '' suffrage and elections," and especially those prescribing the qualifications of electors, are mandatory, and there- fore not to be deviated from in any particular, or whether some of them are mandatory and others directory merely. The qualifications under the constitution are — Article VIII. SiscTioN 1. Every male citizen 'twenty-one years of age, possessing the following ■qualifications, shall be entitled to vote at all elections : First. He shall have been a citizen of the United States at least one month. Second, He shall have resided in the State one year (or if, having previously been a qualified elector or native-born citizen of the State, he shall have removed therefrom and returned, then six months) immediately preceding the election. Third. He shall have resided in the election district where he shall offer to vote at least two months immediately preceding the election. Fourth. If twenty-two years of age or upwards, he shall have paid within two years CURTIN VS. YOCUM, 417 a State and county tax, whioli shall have boeii assessed at least two months and paid at least one month before the election. These are the qualifications of voters as determined and fixed in the organic law of Pennsylvania, and are not in conflict with section 2, ar- ticle 1, of the Constitution of the United States, 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 eleotorsin each State shall have the qualifications requisite for the most numerous branch of the State legislature. It will be seen that these qualifications are five in number, and all pertain to the person of the voter. They are personal qualifications, namely: First, age; second. United States citizenship; third. State residence; fourth, election district or precinct residence; fifth, payment of taxes. We are free to admit that no person is a qualified voter who does not combine in himself all these prerequisites; that the provisions of the constitution in relation thereto are imperative, and are not to be de- parted from. As no question which can affect the result in this case arises under any of these clauses, we pass to another question, which is more difficult to solve, and one not free from conflict and doubt. It is this : Are the constitution and laws of Pennsylvania on the subject of registration imperative and mandatory 1 The constitutional provision is as follows : Article VIII. Sec. 4. All elections by the citizens shall be by ballot. Every ballot voted shall be numbered in the order in which it shall be received, and the number recorded by the election officers on the list of voters, opposite the name of the elector who pre- sents the ballot. Any elector may write his name upon his ticket, or cause the same to be written thereon, and attested by a citizen of the district. The election officers shall be sworn or affirmed not to disclose how any elector shall have voted, unless re- quired to do so as a witness in a judicial proceeding. Sbc. 1. All laws regulating the holding of elections by the citizens, or for the regis- tration of electors, shall be uniform throughout the State ; but no elector shall be de- prived of the privilege of voting by reason of his name not being registered. The foregoing two sections of the constitution comprise all that is necessary to quote in this connection. The law passed to carry out the above provisions, so far as is necessary to notice, will appear as we pro- gress in this investigation. The first section of the law relates to the duties of the assessors in making registry lists and returning them to the county commissioners, setting aside a time for revision before them. It also provides the machinery for carrying on the election. This is true also of the next preceding sections down to and including section 9. Section 10 of the registry law under consideration refers to non-regis- tered voters. We deem it proper to set it out in full. On the day of election any person whose name shall not appear on the registry of voters, and who claims the right to vote at said election, shall produce at least one qualified voter of the district in which he claims to be a voter for the period of at least two months immediately preceding said election, which witness shall be sworn or affirmed, and subscribe a written or partly written and partly printed affidavit to the facts stated by him, which affidav/t shall define clearly where the residence is of the person so claiming to be a voter • and the person so claiming the right to vote shall also take and subscribe a written or partly written and partly printed affidavit, stating to the best of his knowledge and belief when and where he was born ; that he has been a citizen of the United States for one month, and of the Commonwealth of Pennsylvania ; that he has resided in the Commonwealth one year, or if formerly a qualified elector, or a native-born citizen thereof, and has removed therefrom and H. Mis. 68 27 418 DIGEST OP ELECTION CASES. returned, that lie has resided therein six months next preceding said election ; that he has resided in the district in which he claims to be a voter for the period of at least tT?o months immediately .preceding said election; that he has not moyed into the district for the purpose pfvpting therein ; that hehafi, if twenty-two years of age, or upwards, paid a State or county tax within two years, which was assessed at least, two montliS and paid at least one montli before the election. «!»Sij . The said affidavit shall also state wheu and where the tax claimed to be paid by the affidavit; was assessed, and when and where and to whom paid; and the tax re- ceipt therefor shall be produced for examination, unless the affiant shall state in his- affidavit that it has been lost or destroyed, or that he never received any ; and. if a naturalized citizei), shall also state, when, where, and by what court he was natural- ized, and shall also produce his certificate of naturalization fpr examination. But if tjie person so claiming the right to vote shall t^ke and subscribe an affidavit that he is a native-born citizen of the United States, or if bom elsewhere shall state the fact iii' his affidavit, and shall produce evidence that he has been naturalized or that he IS entitled to citizenship by reason of his father's naturalization ; and shall further state in his affidavit that hei is, at the time of making the affidavit, of the age of twenty-one and under twenty-two years ; that he has been a citizen of the United States one nionth and has resided in the State one year ; or if a native-born citizen of the State and removed therefrom arid returned, that he has resided therein six months next preceding said election, and in the election district two months imme- diately preceding said election, he shall be entitled to vote although he shall not have X>»id taxes. The said affidavits of all persons making such claims, and the affidavits of the wit- riesses to their residence, shall be preserved by the election board, and at the close- df the ielection they shall be inclosed with the list of voters, tally-list, and other papers required by law to be iiled by the return judge with the prothonotary, and shall re- main on file therewith in the prothonotary's office, subject to examination as other election papers are. If the election officers shall find that the applicant possesses all the legal qualifications of a voter he shall be permitted to vote, and his name shall be added to the list of taxables by the election officers, the word " tax" being added *hen the claimant claims to vote on tax, and the word "age" when he claims ta vote on age; the same words being added by the clerks in each case respectively on the lists of persons voting at such elections. Sections Hand 12 of the act provide penalties for the failure of any of the election officers to perforin their duties. The remaining sections of the law provide for the counting of the vpte, the return, and the manner of preserving the papers, ballots, &e.; in short, provides the machinery for carrying out the will of the people as expressed through the ballot-box. Other provisions of the law will i^e adverted to as they arise. Haying brought to the notice of the House the constitutional provis- ions, and the law passed by the general assembly of the State of Penn- sylvania to carry it into effect, it is proper to call attention to the con- struction thereof as contended for by the parties to the contest, so far ^s tiiey affect the present question. It is assumed by contestant, and we believe, found to be true by the majority of the committee that it is proven that 1,000 and upwards of non-registered electors, voted at the election at which contestant and contestee were opposing candidates. We cannot acquiesce in this find- ing, as we believe the evidence does not support this view, and wei will discuss this branch of the case at the proper time. But assuming the facts to be as stated, we must dissent from the conclusion of law arrived at by our associates. We do not believe that the provisions of the coii- stitution relating to the registry of voters is mandatory in so far as it affects the right of a non-registered voter to vote if he is otherwise qualifieA. The clause of the constitution in terms excludes any such conclusion. The words " but no elector shall be deprived of the priv- ilege of voting by reason of his name not being registered," found in section 1, article 8, to mv mind settles the Question. They are plain, and admit of but one interpretation, and applying the acknowledged rule to them that the ordinary import of words shall be taken to be their meaning, leaves no room for doubt. CURTIN VS. YOCUM. 419 But the law passed to qarry out tbe section seems to be imperatiT:e, and it is a matter of some diflSculty to decide whether it is repugnant to that clause which would seem to limit the power of the legislature to disfranchise an elector for non-registration who is otherwise qualified. Now, we admit that registry laws are salutary, and ought to be main- t^iined in all proiier oases and by all proper methods. But to maintain them constitutional restrictions must not be disregarded. The foregoing clause of the constitution is, in our judgment, a limita- tion on the power of the legislature of the State, and it cannot pass a registry law whereby a voter shall be deprived of suffrage, if otherwise qualified, by reason of non-registration. This, it seems to us, was the T^ry purijose of the clause. If left out the section would be perfect. It was to prevent the legislature from disfranchising qualified voters that it was inserted. The new constitution of Pennsylvania was made whilst all the adju- dicated cases respecting the old constitution, and the laws passed there- under, were in full force, and well known to the members composing the constitutional convention. It must be conclusively presumed that it was in the light of these past judicial constructions that the conven- •tion acted in framing the new constitution, and in all* cases where the provisions of the old were adequate they were ingrafted into the new ; but where they had been found to be deficient, and did not meet the will or wish of the people, they were taken down, altered, or amended. A glance at the constitution of 1838 and its amendments shows that it was silent as to registry laws. Article 3, sections 1, 2, and 3, of the old constitution are among the changed and altered provisions of the new, and it must be presumed that the old constitution, and the judicial constructions given it on the subject, of suffrage and elections, were not in harmony with the sentiment of the people of the State. Hence the provisions relating to registration. This is the only material change made. In view of this, the act of 1839, section 65 et seq., referred to iii tiie majority report, is not in point, and can have no weight in deter- mining the question before us, because the whole power relating to registration under the old constitution resided in the legislature; it was unrestricted by constitutional barriers ; if it saw fit — as it did — to make an imperative registration law, there was no limitation on its power under the constitution of 1838. This was held in the case of Patterson vs. Barlow (60 Penn. St. Eep.,54); this case expressely overrules Page vs. Allen (58 Penn. St. Eeip., 338), holding otherwise. In the case of Patterson vs. Barlow, supra, the supreme court of the state held the rule announced by Chief Justice Shaw, of Massachusetts, in the case of Capon «s. Foster (12 Pick., i85)^ namely, that an im^ei'- ative registration law^ not forbidden by the constitution, was a reason- able regulation, under which the right to vote might be exercised, and was not therefore an additional test to the qualification of electorsr (See Brightly Contested Election Cases, ^o. 2, page 51, notfe — .) ' , The new constiti;ition expressly fixes and determines the right of all qualii&ed non -registered voters to vote, by saying, "But no elector shall be deprived of the privilege of voting by reason of his name not being registered." We therefore conclude that all provisions of the law set out in the majority report, and cited in this, so far as it attempts (if that is held to be its proper construction) to hold the elector responsible for the act or omission of election ofiScers, regarding registration, or so far as it restricts his right to vote, if he is otherwise qualified, is an addi^ tional test of his right to vote, is repugnant to that sacred privilege ;'e- served to each citizen, so aptly expressed in the very words of the con- 420 DIGEST OF ELECTION CASES. stitution, that he shall not be " deprived of the privilege of voting by reason of his name not being registered." This is but adeclaration of a fundamental principle laid down in every text-book by every respect- iible writer, and recognized by all the courts in the land. Judge Oooley expresses it tersely and strongly, as follows : That one entitled to -vote shall not be deprived of the privilege by the action of the authorities is a fundamental principle. (Cooley's Con. Lini., page 616.) All the cases cited to the contrary are where either the constitution has in terms made registration imijerative and jurisdictional, or where the legislature, in the exercise of an unrestrained and unrestricted power, has enacted laws of the same import. (See Brightly's Lead. Cases on Elections, 62, note, sujyra.) In this view of the case the registration laws passed in aid of the constitution must be construed to be directory merely, so far as they touch the right of the voter to exercise the right of suffrage. By giving them this construction they can stand untouched, as not being in conflict with the constitution, and" the wise and just pro- visions of the registry law be maintained ; the penal clauses can be en- forced against the ofiicers of election, and all the checks and safeguards which they were intended to throw around the ballot can thus be rigidly , enforced. (See State vs. Smith, 67 Maine, 328.) We regard section 10 of the election law of Pennsylvania, svpra, so far as it requires a qualified elector to produce his own affidavit and that of a voter of his election district to his qualifications, directory merely, and in the nature of a law to authorize the board of election, on the day of election, while it is being held, to correct the registry lists thereto- fore furnished them by the county commissioners, by adding the names of qualified voters thereto who may have been unintentionally omitted. The registry lists and poll-lists will then agree. 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 section 12 of the registry law. But to allow a non-registered voter to vote with- out 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 ofiicers to refuse his vote,' because he refuses to obey a reasonaJble regulation prescribed by the legislature, and he hurts no ine but himself. But if he is allowed to vote without being required to file the affidavits, and is otherwise qualified, his vote is not an illegal one. The officers of election have simply failed to take and preserve the evidence which the law requires of them ; but the fail- ure on their part to take and preserve this evidence does not reach the "qualification of the voter. Nor do we believe the courts will hold any such doctrine, for it would be equivalent to holding the evidence of a fact superior to the fact itself. 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 we quote therefrom: The State constitution, article 8, section 1, gives to every citizen possessing the qualifications prescribed the right to vote; and section 7 of the same article provides that no elector shall be deprived of the privilege of voting by reason of his name not being registered. To disfranchise all the voters of the township, as we are asked to ■de 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 offlcer who was 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 punish- CURTIN VS. YOCUM. 421 inganoffioerfortheviolationoftheeleotioulaw, we practically punish the voters of the county by defeating their choice of a county officer as declared at the election. A de- cision of this kind would be fraught with danger, by inviting unscrupulon,8 or un- principled persons on the eve of an important election to secrete or destroy the list of voters or other important papers in a township in which the majority may determine the result in the county. Rules applicable to contested elections, like other legal .rules, must be uniform, and the results a,nd consequences of decisions therefore de- termine their correctness. (Wheelock's case, 1 Norris, 297-9. ][ Wecannotagreewiththemajority of the committee in their deductions^ from this case. We cannot agreeeither that itisshown by the evidence in the case at bar that the voters were themselves at fault. I challenge the correctness of this finding. The fact is, there is nothing shown in the evidence that any considerable number of voters were in fault at all; but the case stands on evidence of this kind. The registry lists of several voting precincts are introduced in evidence, and then the poll- lists. All the names appearing on the poll-lists, and not on the registry lists, are set down and claimed to be illegal. In this way the 1,000 and upwards non-registered voters are made up. And we undertake to main- tain that under the evidence, after all fraudulent votes absolutely proven as having been thrown for each of the parties are taken from their returned vote, the result will not vary far from the returned ma- jority for contestee. So that the question turns on the non- registered votes proven as we have above stated. Wheelock's case was much stronger, for, after reciting in his petition that the commissioners had failed in their duty in not sending the registry list to the election ofiftcers in Freehold Township (upon which statement we infer the recitals in the majority report are predicated), he goes on to recite another very important fact, which is overlooked seem- ingly in the statement of the majority, which is, " Nor was there then any registry of voters present at the same, whereby the names of the resident taxables and voters of said district could be ascertained." (Wheelock's case, page 298.) This petition was demurred to, and all the tacts stated were of course taken on demurrer to be true. Yet the court say that, although there was no registry list at the polls or elsewhere, so far as appears, the people must not be punished for the failure of the officers to do their duty; that the clause "no voter shall be deprived of the priv- ilege 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 prima facie an illegal voter because of nonregistration. The contestant assumes that having shown a discrepancy between the registry lists and the poll-lists, and the further fact that affidavits were not on file in the prothonotary's office corresponding to the excess of names on the poll-lists, therefore all persons thus voting were j»rma fade illegal voters. In other words, that it must be presumed the officers of election failed to perform all their duties by the failure to return affidavits of non-registered voters to the prothonotary's office. The rule of law is that a public officer is presumed to do his duty the contrary nofappearing. Under the law there were several acts required to be done by the officers. The first one was to ascertain whether a person offering to vote was registered; if he was not, to require an affi- davit of himself and also of a registered voter to certain facts ; to see that it was subscribed and sworn ; to take and keep it till the election was over, and then return it to the prothonotary's office with certain otlier papers. To show that the last act was not performed dres not show that the rest were left undone, or that proof of failure in this one particular is proof of a failure in all. It doubtless does overcome the 422 DIGEST OF ELECTION ! CASES. plresumption as to the particular act, but ve doubt whether it cani be ex- tended any further. We are not ready to assent to the propoisition that because the election officers failed to return the required affidavits to the office of the prothonotary, therefore they must be presumed not not to have required them at all. Happily, however, it appears in the testimony submitted that' in nearly every instance direct proof was made that the officers did require the affidavits, but that they mistook their duty, and, instead of return- ing them to the prothonotary's office, sealed them up in the ballot-boxes with the tickets, and deposited the boxes with the nearest justice of the ;()eace to the polling-place, as required by law. At this point an important and interesting question of evidence pre- sents itself, namely, as to whether the burden of proof shifts from the (iontestant to the contestee after contestant has shown prima facie a, sufficient number of illegal votes thrown which if cast for contestee would wipe out his majority. We cannot perceive that the well-known rule contended for applies. To illustrate it we admit that in a case where A is sued on a promissory note by B — plea, payment. To support his plea A offers proof that on thfe day of or a day subsequent to the maturity of the note he paid B a sum of money equal to the amount due. B admits the receipt of the money, but alleges it was paid for another purpose. The burden now shifts to B, and he must shoW by preponderating evidence that it was applied on some other debt or for some other purpose than the pay- merit of the note. ' But the declaration in contestant's notice is that the contestee re- ceived a sufficient number of illegal votes to more than counterbalance his returned majority. Proof that tends to show a number of illegal Votes cast in excess of the returned majority for the contestee is not of itself evidence that contestee received them. It does not even raise a presumption to that effect ; and when contestee is disconnected with such vote— when he has po lot 6r part in bringing it about, and exerts iio influence in having it cast — he certainly cannot be placed in the posi- tion of being compelled to prove a negative in order to maintain his seat. Such a doctrine simply overturns all rales of evidence. We can Conceive of cases which might be different, but these cases are not ap- plicable to the one at bar. We know of no safer rule in judicial proceed- ings than the elementary (Jne that a declarant must prove the material allegations of his declaration, by "a preponderance of evidence. Anything Short of this is ml iunovatidn on all rules of evidence, and must meet with disfavor in all courts where justice is meted out. We refer now to a very important fact in the testimony. On exam- ination of the record in this case we find that over the date of Deceih- ber 10, 1878, W. F. Reber certifies to having served the contestee with a copy of the notice of contest in this case (see part 1, page 30). On the 8th of January, 1879, the contestant accepted service of con- testee's answer (see part 1, page 108) ; this would leave 23 days in Jan- uary and 18 days in February for contestant to take his testimony uh- der the statute. Under the law of Pennsylvania there are two elections each year ; one occurs on the third Tuesday of February and the other on the first Tues- day after the first Monday in, November (see section 15, registry aet^ 1874, page 39). It happened that the third Tuesday of February canie on the ISth day of the month in the year 1879 ; that also happened to be the last day for taking testimony on the part of the contestant. Thfe eontestee could not take testimony before the time expired for the , CUETIN VS. YpCUM. 42? talking of contestant's testimony. Under the laws of Pennsylvania th,e ballots and other papers relating to the election are required to be sealed up in the ballot boxes aftier the election is over, and the ballot- box deposited with the nearest justice of the peace to the polling-place. On the morning of the day of the next succeeding election all the con- tents arie directed to be taken therefrom and publicly destroyed by the election officers before the new election begins. The law requires the election officers to take an oath for the performance of this duty (reg- istry, &c., acts, 1874, page 39, section 13, latter part). , The ballots and papers contained in the ballot-boxes must be djEj- stroyed, unless required to be kept by an order of the court. (See above act, ibid.) During the taking of the testimony -in-chief in the case it was discov- ered by both parties to this contest that the election officers had takeii the affidavits of non-registered voters as required by section 10 of the registry act, but instead of returning them to the office of the prothoiji- otary as required by law, they had sealed them up in the ballot-boxes'. The spring elections being close at hand, and the contestee being anx- ious to preserve the evidence of the regularity of the election, and fo^ the purpose of preserving the contents of the ballot-boxes for the pur- poses of this contest, filed his petition in the proper courts of the coun- ties of Centre and Clearfield in Jafiuary, 1879, praying an order to pire- serviB the contents of the ballot-boxes, that he might be able to serve- fi subpceua duces tecum on tl.ie custodians thereof and make profert of the contents. (See copy of petitions in Centre County, page 1451, vol. 2 ; also order of court, page 1454, vol, 2. As to ijetition, &c., in Clearfield County, filed January 25, 1879, see printed testimony of Bloom, pagie 1603, vyol. 2.) The contestant, with full knowledge of what the ballot- boxes contained, appeared by counsel in Clearfield County and resisted the petition, and procured the court to deny the prayer thereof. (See Ijrinied testimony, page 1603, vol. 2.) '.",.', t The evidence theretofore taken shows the following facts relative ^ tjie contents of the ballot-boxes, namely : ^ . In Benner Township, James Henderson swears that the affidavits were put in the ballot-box. (Page 20, vol. 1.) |* In Houtzdale Borough, James S. Munn swears that the affidavits were put in the ballot-box. (Page 530, vol. 1.) Same borough, McNamara swears to the sarnie thing, and that they were destroyed at spring elec- tion. (Page 1,859, vol. 1.) ' , . In Woodward Township, George W. Quinn swears that affidavits were taken from non-registesfed, voters as required by law, and they were put in the ballot-box., (Page 1873, vol. 1.) ./, In north ward, Bellefonfe Borough, David Bartley swears that non- registered voters were required to make the proper affidavits. TUey. ai-e missing frona the prothonotary's office. (Page 1283, vol. 1.) ,. ' ;, In many other townships and borough? the same facts appear, bi^t it would make this report too voluminous to cite them. In the face of these facts, and knowing the necessity of preserving tlj,e papers pontained, in the ballot-boxes, so that the truth might be ascer- tained, what excuse can be urged for the contestant in resisting aod -defeating their preservation ? Did not his act compass their destruQ- tion ? Is he not here asserting the illega-lity of this vote, and asking the House to unseat the sijtting member, when he himself w^s a party to the dest^ruction of t^e very evidence which would have settled the -iquestion ? Does he not stand in the position of the spoliator of docu- mentary evidence asking to take advantage of his own wrong ? How 424 DIGEST OF ELECTION CASES. can we say the result is left in doubt when the contestant himself con- tributed largely thereto ? We think it safe to stand on the elementary rule that one asking equity must do equity. Eeferring to the point that because at certain polls and precinct* 1,000 and more illegal votes were polled — being illegal because they were not registered, and no affidavits were filed as required by law — that therefore the vote at all of the other precincts must be set aside, is a doctrine we cannot assent to. Admitting for the sake of argument that those votes were illegal, we maintain that the true rule is, where illegal votes have been cast, to purge the poll by first proving for whom they were thrown, and thus preserve the true vote; if by the use of due diligence this cannot be done, and the result is still left in doubt, then to throw the poll out entirely. We think this is a safer rule to- maintain the purity of the ballot box than the other one, which appor- tions the fraud between the parties. This rule ought to be applied in all cases where the fraudulent vote is considerable and permeates the whole poll, and not in cases where it is scattering and inconsidera- ble. In those cases it may be justly inferred that the result would not be affected by retaining the poll unpurged. The authorities cited by the majority of the committee, and an almost unbroken line of author- ities in Pennsylvania, support this view. During the forty days which the contestant' had for taking testimony- he could have introduced in evidence every ballot cast at the polls of which complaint is made. He could, by an inspection of the contents of the ballot-boxes, have ascertained whether the affidavits had been filed as required by law ; by making a comparison between these and the registry lists and the poll-list he could have ascertained the exact truth ; and as each ballot was numbered, he could have ascertained for whom each illegal vote was cast. He did not do this, but actually aided in the destruction of all these papers, so that the contestee could not show the true state of affairs. He cannot therefore be said to be within the rule of having used due diligence to purge the polls of illegal votes. He cannot bring himself within the McGrary rule of deducting pro rata the illegal vote at each poll, for this would increase the returned- majority of contestee by many hundreds. He cannot insist on the true rule we have laid down, for that would leave a large majority of j)olling precincts throughout the Congressional district unchallenged, and would increase the contestee's majority to near 600. He is therefore driven to the last resort, that of asking that the elec- tion be declared void because of the uncertainty of the result, as he claims, in certain specified polling districts. This cannot be allowed,, according to my view, for the reasons stated. If the rule contended for by contestant is adopted, we maintain it must be applied to the polling precincts where contestant alleges the fraud occurred. Then each party is left to prove his vote by calling the voters in the rejected precincts. If they do not, they must stand on the vote of the other unchallenged precincts, and cannot be heard ta complain of their own negligence. To apply either of these rules, as we have seen, confirms the title of contestee to his seat as a member of Congress from the twentieth Con- gressional district of Pennsylvania to the Forty-sixth Congress. We recommend the adoption of the following, viz : • Resolved, That Beth H. Yocuni is entitled to retain his seat in the Forty-sixth Congress as a member from the twentieth Congressional CURTIN VS. YOCUM. 425 district of the State of Pennsylvania, and that Andrew G. Curtin is not entitled thereto. W. H. CALKINS. J. WARKEIS^ KBIFEK. J. B. WEAVES. Mr. Speingbr, from the Committee on Elections, submitted the fol- lowing ME PORT: Your committee, to whom was re/erred the contested-election ease of Andrew G. Curtin against Seth H. Yocum, from the twentieth Congressional district of Pennsylvania, having had the same under consideration, beg leave to report: The committee have carefully examined the questions of law and of fact involved in the case. The pleadings and evidence are very volumi- nous, the printed testimony covering over 4,000 pages, and the notice of contest, answer, and briefs of counsel about 200 more. The commit- tee have been greatly aided in reaching a conclusion by the able and exhaustive arguments of counsel for the parties and the briefs which they have filed under the rules. The votes, as returned by the canvassing officers of the district, show that Mr. Yocum received 13,454 and Mr. Curtin 13,381 votes, giving Mr. Yocum a majority of 73 votes, to which it is admitted 7 votes should be added on account of a clerical error in the return from the west ward of Miflfiinbiirg, Union County, making his apparent majority, as shown by the division returns, 80 votes. Many intricate questions both of law and fact have entered into the inquiry, alike in the taking of the evidence and in the arguments of counsel, which would require a most laborious analysis of this diffused and, in many instances, conflicting testimony, but for the one fact, ad- mitted on both sides, that would rule the judgment of any dispassionate tribunal. The briefs and arguments of the opposing counsel agree in but one point, but that is the vital one of the case. Taking it as presented on either or .both sides, it is shown that votes equal in number to many times the official majority were illegally received, counted, and returned. See appendix to contestant's brief, and list contained in that of the sitting member, commencing on page 21 of Appendix C. In the former a list of about 800 names [exclusive of Old Armagh dnd Union Townships, Mifflin -County) is given, which contestant asserts appear on the several poll-lists therein cited without a corresponding registry, or the affidavits required by law as an indispensable substitute in all such cases. In answer to this the counsel for the sitting member claim that they have reduced his number to 355 (see Appendix B of their brief, page 20), either by showing a registry reasonably approximating to the name of the voter on the poll- list, or by citing testimony showing affirmatively the possession of the constitutional qualification by such unregistered voter. In reply, counsel for contestant show that many of these names have no reasonable correspondence with the registry claimed for them ; that in about fifty instances the registry sought to be appropriated be- 426 DIGEST OF ELECTION CASES. Jongs io fftct to another person, and who actually voted upon it hJWr self; and that in over fifty other cases the siogle remark " wi^ Kitowski was a Democrat. Having established the close relations of Brower with thesittiug mem- ber, and his authorized agency for him, let us follow him in his canvass t John Fleckenstein (page 291), of Eich Prairie, Morrison County, a farmer: his " politics aint much"; Brower called to see him; he told Brower he had decided to take no part in the election. He subsequently received, he thinks from Brower, $10 with a lot of Democratic tickets with the sitting member's name on them. He kept part of the moneys he bought crackers and beer with part and paid $5 to Peter Virnig. The witness pretends that he voted for Donnelly, but the tone of his testimony renders this doubtful. Brower then went to see Peter Virnig (page 299), another farmer of Rich Prairie, a Democrat. John Fleckenstein was with him. Fleck- enstein paid him, Yirnig, $5, "for his team and his day's work" at the election. With the $5 was a lot of Democratic tickets with Wash- burn's name on them. Virnig also pretends that he voted the straight Democratic ticket. Brower also called to see Henry Armstrong (page 303), of Two Rivers^ Morrison County, a farmer and a Democrat. He testifies that Brower paid him $20 to work at the polls for Washburn. He did work for Washburn, distributed his tickets, and the presumption of law is that he voted for him. Thomas Kitowski was subpoenaed to testify, but refused to appear. Charles Berens testifies, however (page 300), that Kitowski told him that Brower had paid him $50. Brower admitted he had paid him some money, it may have been $25 or $30. These briberies having been committed by an authorized agent of DONNELLY VS. WASHBUEN. 44T the sitting member, were, in effect, committed by the sitting member himself; and the agent, Brower, says that he will not swear that he did not bribe 100 persons in the same way during his canvass of Todd and Morrison Counties, and spend $500 in doing so. Milo Porter (page292),mail-carrier, of Little Falls, Todd County, was a supporter of Donnelly. The Eepiiblican county treasurer of Todd County, Mr. Buss, offered him $50 if he would abandon Donnelly and support Washburn. He (Buss) said he had himself received, or was to receive, $500. Porter declined to take the $50, and published a card at once, before the election, in the Little Falls Transcript, reciting the offer made him, and warning the people of the kind of means that were being employed to elect Washburn. There was no attempt made to contradict Porter's testimony. Buss was not called to the witness- stand. We pass from the northern part of the district to the southern part. William M. Leyde (page 48) , lives at Cottage Grove Washin gton County, engaged in thrashing-machine business — a Republican. He saw Mr. Washburn in Saint Paul shortly before the election. He went to Min- neapolis, to the room x)f the Eepublican Central Committee, or a room adjoining. He was there furnished with a letter (he does not remember whose name was to the letter) to a Mr. Sabin, of Stillwater, requesting Sabin to employ him to canvass the county (page 49). He (Leyde) un- derstood that $600 was raised in Stillwater for political purposes. Armed with this letter, he went to Stillwater, and was paid $50 by Sabin and $15 by another party to canvass the county, and thereupon he visited nearly all the towns in the county and hired men to work at th& polls for Washburn with their teams. He declines to say who he hired, how many he hired, or how much he paid them. We supplement Leyde's testimony by the testimony of F. S. Meilicke (page 52), one of the county commissioners of Washington County, to whom Leyde stated that he (Leyde) had talked with Washburn, and Washburn told him " to go to Sabin, and that the money had been placed in Sabin's hands and he would make it all right with him " ; and that they had raistd $600 in Stillwater, "besides the amount that Mr, Washburn had placed there." He (Leyde) said that he had spent all the monley so furnished him but $15 in hiring men to work at the polls for Washburn ; he gave the name of one man, Henry Monroe, of Newport, to whom he had paid $5 "to work at the polls for Washburn." All the $600 raised at Stillwater, and the money contributed by Washburn, was to be spent in behalf of Washburn. We turn now to some briberies committed in Saint Paul ; and here, again, the money paid is traced back to Minneapolis, and to the sitting^ member. John Flaherty (page 25) testifies : Is a saloon keeper in Saint Paul ; a Democrat. He went to Minneapolis two weeks before the election ; went to the Eepublican headquarters; saw C. W. Johnson, secretary of the Eepublican Central Congressional Committee, and the same party who acted as agent for Washburn in the bribing of Cloutier. Johnson said that Washburn must be elected, and asked witness if he thought he could get many voces in Saint Paul, and witness said he thought he could. Johnson told him that one E. Barden "was their agent at Saint Paul," and promised to write Barden about Flaherty. The day before election witness called on Barden and Barden paid him $10. Witness pretends that he voted for Donnelly, but admits that he worked at the polls part of the time for Washburn. Abraham Werrick (page 28), of Saint Paul, machinist, testifies that 448 DIGEST OF ELECTION CASES. he also went to Minneapolis in October, before the election. He made it his special business to see Washburn, and saw and conversed with him ; he asked Washburn ' ' who was his friend down there "(in Saint Paul). Washburn told him "he expected the committees would take some in- terest in him"; "that Mr. Barden" (the same party mentioned by Fla- herty) " was on some committee," and he gave him a letter of introduc- tion to Mr. Barden J- the letter stated that Werriok was his (Washburn's) friend. Witness presented Washburn's letter to Barden ; forgets what conversation took place; but the committee (presumably the committee of which Barden was a member) asked him to hire two men to work at the polls. He received f 30^$10 for himself and $20 to hire two men. He hired Oluf Larson and Julius Bjornstad, and paid them $10 each. He worked for the whole Eepublican ticket. Prior to seeing Washburn and being paid this $30, he had not been supporting Washburn (page 31) ; the men Larson and Bjornstad were paid to work for the whole Repub- lican ticket. Larson (page 27) is called ajid admits the receipt of $10 from Werrick, to work for the straight Eepiiblican ticket ; he did so work a.nd voted for Washburn. Bjornstad (page 21) testifies to same effect; he worked for the whole Eepublican ticket; received $10 from Wer- rick ; he claims to have voted for Donnelly. O. B. Wergedahl (page 20), of Saint Paul, testifies that Werrick told him he wanted him to work for the Eepublican ticket ; and said that he (Werrick) saw Washburn twice in Minneapolis, and that Washburn him (Werrick) to Barden, and told him that he (Washburn) " had given money to Barden to spend in Saint Paul for Ms election.^' He wanted Wergedahl to work for Washburn, and told him he had got money for Bjornstad ; witness refused to work and vote for Washburn. This testimony seems conclusive. Washburn had placed corruption funds in the hands of E. Barden^ and he and Johnson, secretary of his committee, refer parties to Barden for money; and Barden, or some member of the committee, pays out money to these parties; they pay in turn to others, and all of them work at the polls for Washburn's election. Another Saint Paul party, John Guiry (page 22), admits the receipt of $25 from a Eepublican candidate for a local office (State senate) to work at the polls and peddle Republican tickets. He pretends to have voted for Donnelly. Christian Heyer, a Democratic G-erman farmer, of Afton, Washing- ton County, testifies (page 54, printed testimony) that he was paid $10 by Warren Getchel, a Eepublican politician, and particular friend of the sitting member. Getchel asked him if he could support Washburn. Witness said he would. Getchel said he was " a particular friend of Washburn," and " he wanted me to help all I could ; he asked me if there were any debts on our Germa.u church, and that after election he would hand me $10 to use for what purpose we thought best — I could do with it as I had a mind." He does not know what the consideration was for the $10. They have a large Germau population at Afton, about half Democrats. He worked and voted for Washburn. Tolef G. Fladeland, of Sauk Center, Stearns County, merchant, testi- fies (page 221, printed testimony) that he was paid $20 by Mr. Cooper, chairman of the Eepublican county committee of Stearns County, to go out and peddle Democratic and Eepublican tickets with Wnshburn's name on them. He told Cooper that he was not a politician ; doesn't know but he expressed himself in favor of Mr. Donnelly during the cam- paign. At the time Cooper paid him the $20 he was neutral as between Donnelly and Washburn. He visited two or three towns ; used his own team; was gone one day; expenses $1; profits, $19. DOiWELLY VS. WASHBURN. 449 The testimony of Nathan Eichardson, of Little Falls, Morrison County ^page 285), leading Eepublican and politician by trade, shows that the ■editor of the Democratic paper at that place was bought up to support Washburn; that the sum paid was probably $125 (page 286) ; that it «ame from Minneapolis, from Loren Fletcher, an active friend of the sitting member and a prominent Eepublican (page 44) ; and that after the payment of that sum the said newspaper supported Washburn and denounced Donnelly. The witness Eichardson, who conducted the sale of this Democrat and his newspaper, supported Washburn, made a can- vass of the county in his behalf, spent $25. He admits the payment of $7 to William Witherall ; he did not expect to be repaid ; thinks With- «rall voted for Washburn ; he also paid $2 or $3 to a man named Sloan ; money has not been repaid ; thinks Sloan voted for Washburn. It will be observed that in nearly every one of these cases of bribery committed throughout a region of country half as large as the State of New York, the money paid is traced back to the city of Minneapolis, the residence of the sitting member. From this point as a common -center, the corruption radiated in all directions over the district ; and when we come to Minneapolis all the testimony shows that it was a very hotbed of bribery. We give brief abstracts of the cases proven : It is shown (page 80) that a Democrat named A. M. Schaak, a Scan- dinavian, was publishing a Scandinavian newspaper in Minneapolis during the campaign and supported Donnelly for Congress up to the night before the election ; that night he was announced to speak at a •Scandinavian Democratic meeting at Minneapolis in favor of contest- ant, Donnelly. Instead of speaking for Donnelly, he came out strongly for Washburn, and the next day he admitted to witness that he had been paid $150 for doing so. He had anew suit of clothes and a pocket full of money. There was no attempt to contradict this witness ; in fact, counsel for the contestee, in their cross-examination, seem to urge that it was perfectly right and legal to bribe Democrats to speak in favor of Eepublican candidates. It may be said that this testimony as to Schaak is hearsay evidence. The declaration of a voter as to his qualification or disqualification to vote is always received in evidence; he is regarded as a party to the proceedings. This is a well-settled and uniform practice (see 27 N. Y. Eep., People vs. Pease ; 3 McCord's Eep., page 230, foot-note ; contested- election case, Vallandigham and Campbell, Cong. Globe, vol. 41, page 2317 ; and in the case of Milborne Port, 1 Douglas Election Cases, 67, 76, 129, 150, «&c., (see 3 McCord, 230), it was decided that the. admissions of a voter that he was bribed are always receivablein evidence. They rest also on the broader ground that confessions of crime are receivable against the party " as the high- est and most satisfactory proof." (Eussell on Crimes, volume 2, page 823). Here the admissions are ■confirmed by all the surrounding circum- stances; the sudden conversion on the eve of the election, the new clothes, money, &c. William E. Metcalf (page 182), a farmer residing in Crystal Lake Township, near Minneapolis, testifies that he was paid $15 to work at the polls in Crystal Lake Township for the Eepublican ticket. Corser, one of the parties who hired him to work at the polls, was a Eepub- lican candidate for State senator, asked him to support Washburn ; he refused ; subsequently he was engaged to work at the polls for the Ee- publicans. The $15 was paid him by Charles W. Johnson, secretary of Washburn's committee, the same party who bribed Shagren, Flaherty, &c. He went to Johnson's ofiice two days after the election ; he simply H. Mis. 58 29 450 DIGEST OF ELECTION CASES. presented his name and Johnson paid him the $15 without a word. H& declines to say who he voted for for Congress ; will not swear that he' did not vote for Washburn. It will be remembered that when Major Hale attempted to bribe Sha- gren he told Shagren to come the day after election to Washburn's office and he would be t)aid. We find, from Metcalf 's testimony, that Johnson also had an arrangement to pay off his bribed voters the day after election; and in this connection we would refer to the testimony of Ed. A. Stevens (page 105), whose office was in the same building; with Johnson's office, who swears that as he passed Johnson's office- several men were standing in front of it, and a party said to Stevens^ " You ought to hear Charley Johnson swear ; there is a big crowd below after their pay, and Charley says ' Major Hale can pay his own hounds. I have all I can do to pay those I hired myself.'" The testimony of Metcalf and Shagren shows what they were being paid for. This same man Johnson issued, September 19, 1878, as secretary of the Republican Congressional committee, an appeal (see page 43) in the form of a circular, to Republicans to contribute funds to the suc- cess of the Republican cause in the district. The circular is in these words ■ Minneapolis, September 19. Sir: The Congressional committee, cLarged with laboring for the success of the- Eepuhlican cause in this district, call with confidence upon you, as a Republican, for such a contribution in money as you may feel willing to make, hoping it will not be- less than $— — . The committee deem it proper in thus speaking to Republicans to remind them of" the importance of the impending campaign. That the United States Senate is to be Democratic after the 4th of March, 1879, is very nearly certain. In view of this, the election of a Democratic House of Representatives would precipitate upon the coun- try dangerous burdens. Among these schemes is the intention to attempt the revolu- tionary expulsion of the President from his office, the payment of the rebel claims and war debt, the payment of the full value of all emancipated slaves, and the unlimited issue of irredeemable paper currency in place of the present redeemable paper money, which was issued by authority of a Republican Congress, and by the same party has been sustained, thereby preserving the national honor and credit. Please remit at once, &c. Johnson admits (page 42) that copies of this circular were sent out to- about fifty persons, and that money was received in reply, but he re- fuses to state who it was sent to, and he does not remember what amount was received in response to this appeal. This circular proves three things : 1st. That the Republican committee was eollecting money for political- purposes. And while there is no testimony to show that the particular money received in response to this circular was used for corrupt pur- poses, there is evidence which abundantly establishes the fact that money, derived from some source, was employed in buying voters. 2d. That Mr. Washburn's committee regarded and treated Mr. Don- nelly as a Democratic candidate, and entitled as such to the Democratic^ vote of the district. 3d. That they were willing not only to admit Mr. Donnelly's democ- racy, but to charge him with being so extreme a Democrat that he would join in the most revolutionary designs of his party; and they make their appeal to the lowest passions and prejudices of human nature, by charg- ing upon the Democratic party of the nation preposterous designs which it had never contemplatecLor advocated. Louis Kundson, of Minneapolis, testifies (page 161, printed testimony) that he was paid $5 by his employers, Barnard & Cope, active Repub- licans, to work for Washburn. He worked and voted for him. His DONNELLY VS. WASHBURN. 451 fellow-workman Louis Paulson did the same kind of work, and also re- ceived $5 ; he, Paulson, saw it paid. John C. Oleson testifies (page 92) that Wm. Chase asked him to vote for Washburn. He paid him $2 to work at the polls for Washburn, and he did so work and vote. This Wm. Chase was the same party who induced Shagren to go to Washburn's office in search of " a job." Emil Shagren testifies (page 16) that OleMahla admitted to him that he got $25 to vote for Washburn. Mahla denies this in part (page 117),. but admits that he did receive $25 from some one for working at the polls. He declines to say whether he peddled tickets with Washburn's name on them. He refuses to say who paid him the money. He pre- tends that he voted for Donnelly. Shagren also testifies (page 16) that Sevit Mahla told him that he had been paid to vote for Washburn, but did not state the amount. Also that Daniel Getchell told him that he had received $20 for voting for Washburn. Getchell denies this (page 86), but he refuses to say what he did say to Shagren. He admits that he received money for his serv- ices at the election, but claims that it was not from Mr. Washburn, and that he voted for Donnelly. He refuses to tell who paid him. Dominick M. Guertin (page 94) testifies that Karl Pintler told him that he had received a sack of Washburn flour for voting for Washburn.. Louis N. Gaynor, of Minneapqjis (page 206), admits that he received money for his services on election day, but declines to say who paid it to him ; and he declines to answer whether he voted for Mr. Washburn or worked for him ; but he admits he peddled tickets with his name on them. Peter Bngberg, of Minneapolis (page 207), admits that he received monej' for election purposes ; that he voted for V^'ashbu^ll ; that he worked for him, and that he was paid for his services on election daj'. John Smith, of Minneapolis (page 131), swears that Peter Quady, a saloon-keeper, told him he had received $35 for voting his boarders for Mr. Washburn. Peter Quady (page 201) admits that he told Smith that he received $5 and was to receive $20 more; that he induced Smith to vote and gave him a Washburn ticket ; several of his boarders voted for Wash- burn; but he pretends the money was not paid in the interest of Wash- burn ; he voted for Washburn. Winfield S. Leach (page 158) testifies that Quady offered him $10 if he would vote for Washburn. Leach refused the offer. Hon. Charles Hoag, a leading Democrat of Hennepin County (see page 90), was requested by a Democratic worker for Washburn to state what sum of money, put into his hands, would induce him to vote for Wash- burn. Hoag refused the bribe and voted for Donnelly. Thomas G. Eees, of Minneapolis (page 146), testifies that Frederick Puhler told him that he was hired to canvass, " travel, and treat" for Washburn, and was paid $35 per week and $10 a day for money spent in treating; and that there was a man similarly employed in each of the fifteen precincts of the city of Minneapolis. Thomas Halloran, hotel-keeper, Minneapolis, testifies (page 119) that he is a Democrat ; that he was paid $5 by a Dr. Evans, with which " to treat the boys," and he agreed to work and vote for a Eepublican candidate named by Dr. Evans ; it was not Mr. Washburn ; and he claims that he, Halloran, voted for Donnelly. The following is a summary of the cases of bribery or attempted bribei-y referred to in the foregoing testimony : 452 DIGEST OF ELECTION CASES. ■Cases where the money was paid by flie sitting meniber, or his business manage)' or the clerk of his Congressional committee, or some friend, and the parties voted for sitting member. At tte wood-camp at Tamarack Rivei-, 90 wood-choppers and 2 trappers, total.. . 92 Webster aud White, the contractors 2 Bernard Cloutier 1 Eailroad hands at work at roundrhouse, Crookston, Polk County 35 Railroad hands who came to Crookston on hand-cars -• Eailroad hands who voted at Crookston with Johnson Eailroad hands who voted at Two Rivers Balance of D. M. Robbing's railroad hands who vote at Tamarack River J. V. Brower and the men he bribed, to wit, George Geissel, Thomas Kittowski, aud Henry Armstrong Wm. M. Leyde Henry Monroe Abraham Werrick Oluf Larson Christian Heyer 1 Toleff G. Fladeland William Witherall Sloan '. A. M. Schaaok Wm. R. Metcalf Louis Kundson ■ Louis Paulson ...-..._ John C. Oleson '. •Ole Mahler Sevit Mahler J KarlKntler ■ Louis N. Gaynor Peter Engberg Peter Quady : Fred. Puhler and the 14 canvassers similarly engaged in the other 14 precincts of Minneapolis 15 Mr. Buss, treasurer of Todd County 1 291 Cases where bribes were offered but not accepted, or where, if aocepted, the party bribed claims that he voted for Donnelly. Erail Shagren : 1 John Fleckenstein 1 Peter Virnig 1 Charles Bercns 1 Milo Porter 1 John Flaherty 1 O. B. Wergedahl 1 John Guiry - 1 Julius Bjornstad J 1 Daniel Getchell 1 WinfleldS. Leach 1 "Charles Hoag 1 Thomas Halloran 1 * 13 Total 304 But this is not all. The testimony reveals the names of only six of the parties who were bribed by J. V. Brower, of Saint Cloud, in his canvass of Todd and Morrison Counties, and to these six men he paid out only $100, but he testifies that he may have similarly employed a hundred parties, and he does not know whether he paid out $50 or $500. In the case of William M. Leyde, another of the agents sent out by Washburn, we have the name of only one of the men he hired to work ^t the polls, Henry Monroe, while it is in evidence that he canvassed neai-ly every town in the county and hired a number of men whose DONNELLY VS. WASHBURN. 453 names he refused to disclose. We find that at Crookston there were 173 illegal votes, arid the testimony shows that 68 of these were rail- road hands who were all paid for their votes. The probability is very great that the larger part of the other 105 votes were cast by railroad hands similarly paid for their votes. In Minneapolis the whole atmosphere was clouded with bribery. The evidence shows that large sums of money, many thousands of dollars^ had been spend for corrupt purposes. A startling revolution in the po- litical feelings of the voters was accomplished on the eve of the election^ and all the testimony indicates that this was brought about by bribery and intimidation. There was no attempt on the part of the sitting member to account for this extraordinary revolution, or to answer the testimony showing bribery. It must not be forgotten that bribery is a secret crime ; both the parties to it are equally interested in keeping it secret ; and when detected both are ready to give ingenious explanations of it. If they have acknowl- edged to third parties the receipt of the bribe, they are ready to declare,, when called to the witness-stand, that they were in favor of the bribe giver before the money was offered ; or that they voted for his opponent ;: or that the money was paid by some one else, some nameless party, for some other purpose. Under these circumstances when it is shown that in an election over 300 cases of bribery and attempted bribery are proven, the presumption is not violent that for every case that was, by accident or the indiscre- tion of the parties, brought to the light there were others that were never revealed. The records of the contested-election cases of Congress will be searched in vain for a parallel to this case. It shows that the people of this Con- gressional district were debauched to the last degree ; the witnesses in many cases defend the practice of buying up voters to forego their principles ; the parties who received the bribes in many instances boasted to their neighbors of the money they had received, and seemed to be proud of the h'gh price for which they had sold themselves ; and the sitting member did not think it at all necessary to call witnesses to deny or explain away this overwhelming mass of corruption. Nothing could testily more strongly to the degeneracy of the age and the depths to which popular suffrage has fallen than the revelations made in this extraordinary case. It is a clearly established principle of law, both in England and th^ United States, that bribery committed by the sitting member, or " by any agent of the sitting member, with or without the knowledge or di- rection of his principal, renders the election void." (See Felton vs. Easthorpe, Rogers's Law and Practice of Elections, 221.) In Engliinfl bribery is an oiiense of so heinous a character, and so utterly subversive of the freedom of elections, that, when proved to have been committed, though in one instance only, and though a majority of unbribed voters remain, the election will be ifl)solutely void. (Cushing's Par. Law, p. 70, sec. 189; St. Ives, Douglass, 11, 389; Coventry, Peckrt'ell, 1, 97 ; Maiue on Elections, 345.) Freedom of election is violated by external violence, by which the electors are con- strained, or hy hribenj by which their will is corrupted ; and, in all oases, where the electors are prevented in either of these ways from the free exercise of their rights, the election will he void without reference to the number of votes affected thereby. (Cushing's. Par. Law, p. 68, sec. 181.) The same doctrine was affirmed by the House of Representatives in the recent case of Piatt vs. Goode, second Congressional district, Vir- ginia. (See Contested Elections, 1871-'76, page 650). The report, adopted by the House, declares : 454 DIGEST OF ELECTION CASES. The bribed votes should not be counted. The record furnishes no method for their elimination. Their acceptance can only be avoided by applying the rule of law, so well known and of such general adoption that it need scarcely be repeated here, that when illegal and fraudulent votes have been proven, and the poll cannot be purged with reasonable certainty, the whole vote must be rejected. But your committee do not think it necessary to rest the decision of this case upon this principle of law, although they believe that the evi- dence shows conclusively not only that bribery was committed in a multitude of instances, but that a great number of these cases were traced home to the sitting member. They are of the opinion that the evidence shows that the contestant had a majority of the legal votes cast and returned. INTIMIDATION. It appears that many of the voters who cast their votes in favor of the sitting member were intimidated and coerced into doing so. The testimony of Albert Church, (pages 224, 227) shows that the railroad hands who voted for Washburn, at Orookston, told him that they were compelled " to vote the way their boss, the railroad company, told them to ; * * * they had to vote the ticket of their own boss." They were led up in a body to the polls (page 226) by their foreman, Jacobus, and he gave them the tickets they were to vote. Many of these men were Democrats (page 224), and would probably have voted the Demo- cratic ticket if they had been iree from the coercion of the railroad com- pany. In Minneapolis this system of coercion and intimidation was carried out systematically. The testimony shows that the employers of labor in that city united to raise money to buy votes for Washburn (page 23) ; a circular was issued by the chairman of the Republican county committee, urging business men to lay aside their business and devote one day at the polls (page 106) : large numbers of employers of labor, includiag many who usually took no part in such work, were at the polls working for Washburn (page 106) ; the workmen were sent for and brought to the polls by their employers and ballots were there placed in their hands, folded, and voted by the employes without being opened (page 108), the employer or his foreman following them to the polls to see that they deposited them (page 97) ; many of the employes declared that they believed they would lose their means of subsistence if they did not vote for Washburn (page 110) ; the employes of the North Star Woolen Mill were brought to the polls in squads by the son of the pro- prietor, Philip Gibson ; when a friend of contestant tried to give these men ballots, Cribson jumped between them and tried to force the can- vasser away, declaring that he had brought the men there himself, and that most of the workmen voted as their employers wanted them to (page 96). The foreman of this mill told one of the workmen (page 97) that an employ^ of the mill had, at a previous election, voted in opposi- tion to his wishes, and that he would take the same man to the polls the next day, to wit, to the Congressional election in question, and if he did not vote as he wanted him to he would discharge him. When witnesses were called by contestant from among the employes of this mill to testify in this case, the said foreman followed them to the notary's office and remained there while they were testifying (page 98). The workmen in the Miimeapolis Harvester Works who were known to be Washburn men were carried to the polls and returned; while those who could not be induced to vote for Washburn were not allowed to go, unless by losing their day's work, and probably their situations. (PageilS. ) In one case a witness, a workman in a furniture shop, swears that he was suspended from work the day after election because liad he voted for DONNELLY VS. WASHBURN, 455 Donnelly, and because it was reported to Ms employer that he had ex- pressed the belief that if Donnelly was elected the workmen would get better wages ; ten days after election he was finally discharged. (See pages 101-2). It appears — The vote of the city was very liglit. ^ * * A large number of workmeu did not vote at all. They were afraid of losing their jobs if they voted for Donnelly, and they would not vote for Washbnrn. (Page 113.) In seven precincts of Minneapolis the judges of election placed a num- ber on the back of each ballot to correspond with the number of the voter on the poll-list. Let us consider the purpose of this numbering of the ballots. At the session of the legislature of Minnesota in January and Febru- ary, 1878, a special law had been enacted, providing that in cities con- taining more than 12,000 inhabitants the ballots should be numbered. This law applied, and was intended to apply, only to the cities of Saint Paul and Minneapolis, where the workiugmen were very numerous, and where alone the required population existed. It was felt by many that this i^rovision of law was oppressive and unconstitutional, and at the •spring election in Saint Paul, held immediately after the law was passed, •a party offered to vote without having his ballot numbered; he was re- fused, and he brought an action at once in the district court of Ramsey ■County, in which Saint Paul is situated, to test the validity of the act. The court decided (see Brisbin vs. Cleary et al., printed testimony, page 74) that the act was unconstitutional, inasmuch as the constitution of Minnesota, section 6, article VII, provides that " all elections shall be by ballot " ; that the ballot implies secrecy, and that this law requires every man "to vote, in effect, a ticket with his name indorsed on it"; .and in case of a contest the ballots are to be made public. "This law," says the court, "furnishes tbe means of ascertaining exactly how every ^elector voted ; that is its acknowledged purpose." This decision of the district court of Ramsey County was the unani- mous decision of a fall bench of three judge.s; it was appealed to the supreme court, and was attirmed by tbe supreme court subsequently to the election. (See Northwestern Reporter, vol. 1, page 75, foot page ■825, Brisbin vs. Cleary et al., being an appeal from the district court of Ramsey County, in the same case referred to above.) The supreme •court sustain the decision of the district court of Ramsey County, and •say: Tl)e statutory provision with regard to the. numbering of tickets, above quoted •clearly interferes with and violates the voter's constitutional privilege of secrecy. It is therefore an unconstitutional provision. The voter cannot be required to submit to its application the ticlset oifered by him. * * » The defendant's demurrer was properly overruled, and the order overruling the same is accordingly affirmed. This decision was made subsequently to the election in controversy, but is it not retroactive in its effect upon this case ? It declares that the word " ballot" means secrecy and absence of every -external mark whereby the elector who has cast the same can be iden- tified. A ticket identified by placing the voter's name, or a number in- •dicative of his name upon it, is not a " ballot" in the sense of the con- stitution; and has, therefore, no right to be placed in the ballot-box. When the court decided that such identified tickets were not " ballots" it certainly follows that they are not entitled to be counted as "ballots." Briefly staled, the argument may be thus summed up : 1. Members of Congress can only be elected in the State of Minnesota by " ballots." 2. A numbered ticket is not a " ballot." 3. Such numbered tickets, therefore, cannot be counted. 456 DIGEST OP ELECTION CASES. They are simply attempts to vote, but are by election ofQcers deprived of that constitutional element of secrecy which is necessary to enable- them to be counted as " ballots." But it is not necessary to rest the decision of this case alone upott this ground. The conclusion we have reached is based on broader founda- tions, which reach the bona fides of the election in the precincts where those ballots were numbered. Not only were the numbered votes cast in those precincts unconstitutional and void, but they were so numbered for a corrupt and dishonest purpose, and were incompatible with an honest, fair, and free election. All lawyers will concur that the decision of the district court was highly persuasive of, if not sufficient to control, the judgment of election officers in their action touching the validity of the statute in question. And we accordingly find (see Daily Globe, November 5, 1878, report of proceedings, offered in evidence) that in the city of Saint Paul the judges of election met the day before election, took counsel with the law ofiflcer of the city, and decided not to number the ballots. They took this course under the advice of the attorney-general of the State (as ap- pears by said paper), of the county attorney of Ramsey County, of the city attorney of Saint Paul, and even of the counsel who had defended the law before the district court. These parties, the attorneys for the city and county, and the attorney defending the act, united in a card to the public advising election officers not to number the ballots. (Sefr Saint Paul Pioneer Press, October 27, 1879.) A similar meeting of the judges of election was held the day before- the election in the city of Minneapolis (see page 134). They called upott the city attorney for his opinion on the question of numbering the bal- lots. He told them that the district court of Ramsey County had de- cided that the law was unconstitutional, and that it was his opinion,, also, that such numbering desrroyed the secrecy of the ballot and was- unconstitutional. " They Anally took a vote as to how they would con- duct the election in that particular," and " decided in favor of disre- garding the law," and that they would not number the ballots. The vote stood thirteen or fifteen against eight or ten (page 14.3). It was thus resolved in both the cities to which alone the law applied that the ballots should not be numbered. This was considered a tri- umph for the supporters of Mr. Donnelly, and accordingly, the Saint Paul Daily Globe, the Democratic paper of that city, which was supporting Mr. Donnelly, announced this action in its issue of the next morning,, which was the morning of election, in these words : tFrom the Saint Paul Daily Globe, ITovember 5, 1878, Exhibit B, E. A. H., on iile in ofBce of clert of Committee on Elections.] MINNEAPOLIS NEWS. NO NUMBERING. DEMOCRATS, WORKINGMEN, AND NATIONALS. THEKB IS NO PEAR OF LOSING YODR SITUATIONS. GIVE WASHBURN A BLACK EYE.. YOUR EMPLOYERS CANNOT FIND OUT HOW YOU VOTE. The judges of election met at the council cliamber at 3 o'clock yesterday afteruoou to coDsnlt as to whether it would be legal, after the recent decision of tbe Ramsey County Court, to number the ballots. After consulting the best legal talent of the- city, it was determined to receive the votes as of old, and deposit without placing tbe numbers opposite the different names. This makes th^ thing all secure ! Now, boys, go to the polls and vote as you please F. The bulldozers can't rob you of your -places. Vote for Donnelly, and down with all rings. DONNELLY VS. WASHBUEN. 45T In Saint E^aul the same paper announces the resolution of the judges not to number the ballots under a head-line, " l!fo Numbers — A Free, TJntrammeled Ballot ! " This, it will be remembered, was contemporaneous history ; it show& that it was understood at that time, before any contest could have been contemplated by contestant, that the numbering of the ballots' would result in the intimidation of the workingmen who were in favor of Don- nelly ; and that if the ballots were not numbered Donnelly would secure a larger vote among the workingmen. This newspaper, it is shown, reached Minneapolis before 7 o'clock on tbe morning of the election, and it had a large circulation in that city (see page 46, questions 9, 10, 11, 12). It, doubtless, aroused the friends of the sitting member to action ; for we find that by 9 o'clock, the hour at which thte polls opened, a decision had "been reached to num- ber the ballots in seven out of fifteen election precincts of Minneapolis. It is charged by contestant in his brief that theseprecincts were largely inhabited by workingmen ; and this statement was not denied by the^ counsel for the contestee in his brief. It appears (page 181) that in one precinct (second, of the fourth ward), all the voters were workingmen ; and the returns of the votes of previous elections show that a large- Democratic vote was cast in these precilicts. If the numbering of the ballots had been the result of an innocent- mistake on the part of the judges of these seven precincts ; if they had been ignorant of the decision of the district court of Ramsey County declaring such numbering unconstitutional ; if there was no evidence to show fraud or intimidation, we should not be in favor of casting out the votes of these precincts simply for the reason that the ballots had been numbered. This was the view taken by the election committee in the case of McKenzie vs. Braxton, seventh district Virginia (Contested; Elections, 1871-'76, page 20). The committee (McCrary, chairman), Although it would be possible, from the numbering of the ballots, to ascertain how each person voted, itis not claimed in this case that this was done, or that thetickets^ were voted for any such purpose, or for any improper or unlawful purpose whatever. The question of intent, therefore, is the true question at issue, and all the circumstances in the case under consideration point to a corrupt intent : 1. A cloud of bribery surrounds the vote of the whole city, which thfr contestee has made no effort to dissipate. 2. There is evidence showing a widespread conspiracy among the em- ployers of labor to corrupt and, where they could not corrupt, to intimi- date their workmen. 3. The testimony shows that the workmen were intimidated, and that they believed that they would lose their means of subsistence if they voted against Washburn. 4. The judges of election knew that the numbering of the ballots had. been declared unconstitutional by a court of record second only to th& supreme court in dignity; by the attorney-general of the State; by th& city attorney of Saint Paulf and by the county attorney of Ramsey County; and that even the attorney who had defended the constitu- tionality of the law in the district court had advised judges of electioa not to number the ballots. 5. They had been told by their own law officer, whose opinion they had requested, that it would be unconstitutional to number the ballots, inasmuch as it violated the secrecy of lihe ballot. 6. They knew that the supporters of Mr. Donnelly believed that the 458 DIGEST OF ELECTION CASES. numbering of the ballots would prevent a free and fair election, and would result in the intimidation of the workmen. 7. They had deliberately voted by a large majority not to number the ballots. There can be but one explanation of the intent with which they re- versed this deliberate action. It was done to prevent a fair electioQ, and to give the employers of workingmen an opportunity to still further intimidate them by preserving a record of how the meu voted whose means of life depended upon the good-will of those who employed them; the workingmen well knew that the ballot-boxes could be opened at any time in any real or pretended contest and the character of their TOtes revealed. Only bold and reckless men would have dared to set their private Judgment, as laymen, against the judgment of the district court of Ram- sey County, against the judgment of the attorney-general and of the law offices of their own city, upon a question of law, and against the opinions of two-thirds of the judges of election as expressed at the meet- ing of judges the day before. In doing so they ran counter to and de- fled the settled opinion upon the question. These seven precincts were the only precincts in the two cities Saint Paul and Minneapolis — where there were over thirty precincfs — in which the ballots were numbered in the year 1878. It must be remembered that the testimony shows that among the twenty-one judges of election of these seven precincts, who thus re- versed tq;e action of all the judges of the city of the day before, there was but one judge who was a friend of Mr. Donnelly (see i)ages 195- 197) ; and even he did not swear that he was a supporter of Mr. Donnelly, ^ut only that he was "uaderstood" to be such (see page 136). By law Mr. Donnelly, as the candidate of two political parties, should have had fourteen supporters among these twenty-one judges; in effect, he had not one. (See section 1 act of March 12, 1878.) This extraordinary action was therefore taken by twenty-one judges who were the political partisans of Mr. Washburn ; and no explanation is offered by Mr. Wash- burn or themselves for their course. The very fact that in these seven precincts Mr. Donnelly had been deprived by the city council of Mipneapolis of all represeutation among the officers conducting the election is, in itself, a very strong proof of conspiracy and fraud. It appears by the testimony of one witness, a Democrat (page 137), that Jie offered his ballot at one of these precincts and requested that it be placed in the ballot box without being numbered; this was refused; the judges refused to permit him to vote unless he voted a numbered ballot; this he declined to do, and he did not vote. It appears that large numbers ■of workmen did not vote for fear of losing their places (p. 113). It is an established principle of law that where voters are kept from voting by an illegal requirement of the election officers, it voids the election at such polls. (See McCrary's Amer. Law Elections, section 89; Scran ton" Borough Election, Brightly's Election Cases, page 455.) It is evident that large numbers of Democrats, from some cause, did not vote at all at said election in that city. Two years previously, at the Presidential election of 1876, the vote of Minneapolis stood as follows (see Saint Paul Pioneer-Press, November 9, 1876, in Congressional Library) : Hayes 4,098 Tilden 3,743 Total 7,841 DONNELLY VS. WASHBURN. 459 It is a matter of history that Minneapolis increased during the two jears between November, 1876, and November, 1878, at the rate of 11 per cent, per annum (see Minnesota State Register, 1879, Congressional Library, page 316). If we apply this percentage of growth to the vote of 1876, and suppose that the two political parties increased pro rata, then the vote should have stood in 1878 as follows : Total Democratic vote 4, 568 Total Republican vote 4' 999 But instead of Mr. Donnelly receiving, iu 1878, 1,568 votes in Minne- apolis, he received but 1,566 votes ; a falling off of 3,002 votes. And it a.ppears that but a small part of this Democratic vote went to Mr. Wash- burn ; for, if he received the full vote of his party, he should have had 4,999 votes, while he claims to have received 5,026 votes ; a gain of only 27 votes. It thus appears that there were nearly 3,000 Democratic voters who did not vote at all at the election of November 5, 1878. The result was that, instead of the Republican majority given to President Hayes iu Minneapolis of 355 votes, Washburn claims to have carried the city by 3,680 votes. The evidence shows that Mr. Donnelly was the Democratic candidate for Congress, and that he received the support but not the votes of very nearly all the Democrats, even in Minneapolis (see pages 109, 110); the immense falling off of two-thirds of the Democratic vote in Minneapolis can, therefore, only be accounted for by the intimidation of the workmen, and the numbering of the ballots in nearly half the precincts of the city was part of this system of intimidation. The evidence shows that the workingmen of the city regarded Mr. Donnelly as their friend and champion (page 112). They had a Labor Union, a political society, numbering about 2,200 members (page 111), and which represented the sentiments and feelings of the working popu- lation of the city, numbering between 4,000 and 5,000 (page 112) ; Mr. Washburn "hadjio friends in the Labor Union" (page 111); and the Union nominated Mr. Donnelly for Congress, at a large meeting, by a unanimous vote. The woi^kingmen continued to support Mr. Donnelly until the day before the election (pages 141, 142). The evidence shows that a great revolution was wrought in the action of the Democrats on the eve of the election ; a revolution which several witnesses state could only be explained by the use of money and intimidation (pages 98, 106, 141, 142, 277, &c.). Instead of receiving the 4,000 or 5,000 votes of the workingmen, or the 4,568 votes of the Democrats, to say nothing of the G-reenback vote, Mr. Donnelly received but 1,566 votes in the entire city. In the seven precincts where the ballots were numbered the vote stood as follows : Ward. a 1 ^1 a 1 First.. Second Fiist.. Second Third First. - Third. 187 265 334 347 566 364 219 42 42 127 57 83 95 76 145 22,S 207 ^ixth. - 290 483 269 143 1,760 1 460 DIGEST OF ELECTION CASES. If we' compare this vote with the vote cast in these same precincts seven months previously, to wit, at the municipal election of April 2, 1878, we find that the Kepublicans carried these seven precincts at that spring election by a total majority of 171, or 1,689 votes less than the majority claimed for Washburn. At the same election, in the spring of 1878, the Bepublicans had but 164 majority in the city of Minneapolis ; and yet they claim to have carried the city, seven months thereafter, by 3,6S0 votes. In these seven precincts the vote at the spring election of 1878 was as follows : Republican 1,215 Democratic 1,044 Total 2,259 At the Congressional election, November 5, 1878, the vote in these seven precincts was as follows : Washburn 2,282 Donnelly 522 2,804 Thus while the vote in the fall was but 545 more than it was in the spring, the Eepublican majority was ten times as great : Eepublican majoritv spring of 1878 171 Eepublican majority fall of 1878 1,769 The total vote of the city in 1876 at the Presidental election was 7,841. If now we add 22 per cent, for the increase of population, the total vote in 1878 should have been 9,566 ; instead of that it was 6,592, a falling off of 2,964. In round numbers the vote cast in 1878 was 52 per cent, less than the actual vote of the city. It is conceded that the canvass of 1878 was one of the most vigorous ever made in the city (page 106-7) ; but while it brought out the full Eepublican vote, nearly 3,000 Democrats failed ta vote ; or if any considerable part of them voted for Washburn, then an equal number of Republicans must have refused to vote for him. There can be no question that a large part of these men were the employ6s,, who feared to vote for Donnelly lest they should lose their places. It cannot be claimed that Mr. Washburn increased the Republican vote of the city from 355 to 3,680, and the Republican vote of the seven precincts from 171 to 1,760 because of his personal popularity ; because it is in evidence that he was not popular (see pages 111, 277). A com- parison of his vote in the district outside of Minneapolis, with the vote cast for Hayes in 1876, proves that he was very unpopular. The vote stands as follows : Hayes, 1876 19, .573 Washburn, 1878 14, 658 Washburn ran behind Hayes ■. 4,915 But, if from Washburn's vote there be deducted the railroad, bribed, and illegal vote of '' Polk and Kittson County," 355 in all, he will be found to have run behind Hayes in the district, outside of Minneapolis, 5,270' votes, iu a total vote of 19,573. On the contrary, Mr. Donnelly's vote compares favorably with the total vote for Tilden and Cooper, in the district exclusive of Minne- apolis, thus : DONNELLY VS. WASHBURN. 461 Tilden and Cooper 16,126 Donnelly's vote 1.5, 926 Add for votes of " Polk and Kittson County " 355 16,281 Donnelly runs ahead of Tilden and Cooper 155 Now we are asked to believe that while Mr. Washburn fell behind Hayes's vote outside of Minneapolis 5,270 votes, that he ran ahead of Hayes in Minneapolis 3,105 votes ! And this, notwithstanding the fact that the population of Minneapolis consists largely of workingmen, who had placed Mr. Donnelly in nomination as their candidate for Congress, and among whom, it appears, Mr. Washburn "had no friends." And, notwithstanding the further fact, that Minneapolis may be regarded as debatable ground, politically. In 1876 the Democratic candidate for Congress, MclJfair, carried the city by about 500 majority, and the county by over 1,000 majority. In April, 1876, the Democrats and working- men elected a Democratic mayor in Minneapolis by 356 majority, and carried the wards embracing the territory now embraced in the seven wards where the ballots were numbered by 525 majority. The vote stood therein : Democrats 1, 372 Republicans 847 Democratic majority 525 The testimony produces the conviction that Mr. Donnelly was sweep- ing the district outside of Minneapolis and carrying all before him; that he was popular in Minneapolis, especially among the workingmen, and that the workingmen constituted a majority of the total population. That in this emergency the sitting member and his friends formed a conspiracy to arrest the tide of defeat by bribery and intimidation ; and that their last intrenchment was the seven precincts where, in effect, they made the workingmen vote viva voce for Washburn or take the chances of starvation. And it is a singular and suspicious circumstance that the vote of two of these seven precincts, two precincts where Wash- burn claims 706 majority, were not returned until eight days after the election, although they should have been returned on the morning after the election ; and then when they were returned one of the two pre- cincts is claimed for Washburn by 483 majority, while one of the clerks of the election therein, produced the original tally-sheet of the elec- tion, showing but 26 majority for Washburn in that precinct instead of 483. (See page 275.) And when the counsel for Washburn, in the per-' formance of his professional duty, subpoenaed the officers in charge of the ballot-boxes to produce the ballots of these precincts, knowing, as a lawyer, that that was the best and therefore the properlegal evidence of the actual vote cast ; and when the officers stood ready to have the votes counted, thecontestee held his counsel back, and permitted the ballot^ boxes to be returned unopened. Was this done because he preferred to risk the throwing out of 706 of his majority rather than have the secrets of those ballot-boxes, where the votes had been numbered, revealed to the public eye *? What powerful motive could have constrained him bo such a course? InWilliamsws. Stein (38 Ind. Rep., page 90), the courtheldthatnumberingof the votes cast violates the secrecy of the ballot as much as if the law had required the voters to vote viva voce; and McCrary (American Law of Elections, section 446) says, " Votes must be castin the manner provided by law. Under a statute requiring that the manner of voting shall be by ballot, votes given viva voce cannot be counted." Upon an elaborate review of the authorities the conclusion is reached, upon what ^eems to be good ground, that in this country the ballot implies absolute and inviola- 462 DIGEST OF ELECTION CASES. l)le secrecy, and that this doctrine is founded in the highest considerations of publie policy. That the term ballot implies secrecy, and that this mode of Toting was- adopted mainly to enable each voter to keep secret his vote, is clear. (McCrary on. Elections, section 413, page 112, and authorities there cited; Cooley, Constitutional Limitations, pages 506, 507, and 604.) The chief reason for the general adpption of the ballot in this country is that it af- fords to the voter the means of preserving the secrecy of his vo.te. And this enables him to vote independently and freely, without being subject to be overawed, intimi- dated, or in any manner controlled by others, or to any ill-will or persecution on ac- count of his vote. The secret ballot is justly regarded as an important and valuable safeguard for the protection of the voter, and particularly of the humble citizen against the influence which wealth and station may be supposed to exercise. * * « All devices by which the secrecy of the ballot is destroyed by means of colored paper used for ballots, or by other similar means, are exceedingly reprehensible, and whether expressly prohibited by statute or not should be discountenanced by all good citizens. (McCrary on Elections, section 194; People vs. Pease, 27 N. Y., pages 45 and 81). We have therefore reached the couclusion that the votes cast in the seven precincts where the ballots were numbered should bg deducted, not alone because they were so numbered, but because such numbering was corruptly done, with an intent to intimidate the workingmen resid- ing in those precincts ; and because it was part of a general conspiracy of the friends and supporters of Mr. Washburn to prevent a free and untrammeled expression of the preferences of the voters. StrPPLBMENTAL BETUKNS. Through the error of the secretary of state of Minnesota in not furnish- ing the proper return-blanks to the ofBcers of the election precincts of the State, there were a number of instances where the votes polled for the candidates for Congress were not returned to and counted by the county canvassing boards. In the case of the votes not so returned and canvassed in certain precincts of the counties of Stearns and Morrison it was conceded and agreed by both parties that the votes had been cast and should be counted. These votes were as follows (see pages 260,284): ST:pAENS COUNTY. Precinct. Washburn. Donnelly. 7 26 7 96 8 11 Holding 64 TowDsnip of Saint Cloud 93 160 68 "Mpjority ^"t rVonnAlly 144 396 252 MOREISON COTJNTX. Two Elvers. Swan Eiver.. Majority for Donnelly . 120 45 165 97 Supplemental returns were made eight days after the election by some of the officers of three precincts of the city of Minneapolis ; but it is very clear that the election officers of the precincts had performed their BONNELLY VS. WASHBURN. 465 duties on the night of the election; had dissolved, and \\&r% functus of- ficio, and had no right to make any such supiilemental returns. Mr, Washburn claimed majorities in each of these precincts, and he therefore- undertook to prove the votes cast aliunde. In strictness of law it was his duty to have proved the votes cast by the best evidence, to wit, by counting the ballots in the ballot-boxes ; and he took some preliminary steps to that end, issuing a subpoena deees tecum to tlie officers who had charge of the ballot-boxes to appear at a time named, in order that the ballots might be counted ; but, as we have ' shown, for some reason he refused to count the ballots. There was a wide diversity in the evidence as to one of these precincts, the third precinct of fourth ward, one side claiming that Mr. Washburn had a majority of 483 vote* and the other side claiming that he had but 26 majority. But we have not felt obliged to enter into these questions, inasmuch as two of these precincts, viz, the second precinct of the second ward and the third pre- cincl of the'fourth ward, were precincts in which the ballots were num- bered, and they have been already disi)Osed of in our finding upon that question. In the other precinct, the first precinct of the first ward^ there was a conflict of testimony as to what the vote really was ; but the burden of proof establishes to our satisfaction that in this precinct Washburn received 140 votes and Donnelly 132 ; and although this wa& not established by the best evidence we are willing to admit the vote as such. In the township of Leaf Valley, Douglas County (page 270), Mr. Don- nelly received all the votes cast for Congressman, to wit, 61 votes ; they were not returned or counted for him. These votes are to be added to- the respecti\'e candidates. ISANTI COUNTY. The statutes of Minnesota (section 19, page 58, revision of 1866) pro- vide that the county canvassing board of each county shall consist of the county auditor and two justices of the peace, to be by him selected. In the case of Isanti Countj' the canvass was made, the votes counted,. and the return made by the county auditor, one justice of the peace,, and the judge of probate of the county. (See page 69, printed testimony.)- It is true that sub. 3, section 1, title 1, chap. 3, vol. 1, Bissell's Stat, of Minn., provides that " words purporting to give a joint authority to three or more public officers or other persons shall be construed as giv- ing such authority to a majority of such persons or officers." If the county auditor had selected two justices of the peace, and one had failed to attend, then the ma;jority present might, und.er this law, have gone on and acted ; but in the case of Isanti County the county auditor did not select two justices of the peace as the law required ; the board of canvassers, therefore, was never constituted as required by law, and never having had a legal existence, there could be neither majority nor minority of it. In the contested-election case of Howard vs. Cooper, of Michigan^ Thirty-sixth Congress (see Contested Elections, 1864-'65, page 282), the Committee on Elections say : Your committee have rejected the vote of the township of Van Buren. The law reqnires that the hoard of inspectors shall he constituted of three persons in number. The proof is clear that there were but two. And as there was no board of inspectors- known to the law, your committee see no way by which any legal effect can be given to the returned vote. They have therefore deducted it. In this case it was shown that there was a statute of the State of 464 DIGEST OF ELECTION CASES. Michigan precisely tlie same as that just quoted from Minnesota, giv- ing a majority of a board the power to act for the whole board ; but the committee did not consider that it was sufficient to permit them to re- ceive and count the return. But if we will suppose that the board of county canvassers of Isanti ■County had been duly constituted as required by law, aud that a ma- jority had the power to act for the whole board, nevertheless the return could not be received, for it appears upon its face that a third party, not a member of the board, a stranger not qualified to act, an usurper without color of authority, intruded himself into the deliberations of the board and acted as one of them, and in all cases where the county au- ditor and the justice of the peace differed in opinion he gave the casting vote, and thus decided the action of the board. The statutes of Min- nesota show that a judge of probate has none of the functions of a jus- tice of the peace, and the constitution of the State (section 7, article VI) provides that a probate court " shall have no other jurisdiction except the estates of deceased persons and persons under guardianship." There is no testimony to show that this judge of probate was at the same time a justice of the peace, and if he had been, his exercise of the office of justice of the peace would have been incompatible with the spirit of the constitution of the State. In the case of James Jackson vs. Gen. Anthony Wayne (Clark & flail, page 47), a Georgia case, decided in 1791, it was held that " where the law requires three magistrates to preside at an election, and a re- turn was made by three persons, two of whom were not magistrates, the return was defective," and the vote of the county was rejected. In the case of Eufus Easton vs. John Scott (Clark & Hall, page 272), a Missouri case, decided in 1816, held : " If an election is required by law to be held by three judges who are required to be sworn, and it is held by two not sworn, their proceedings are irregular, and the votes taken by them are to be rejected." In the case of Sloan vs. Rawls (Contested Election Cases, 1871-'76, page 144), a Georgia case, decided in 1874, it was held that a county canvass or consolidated return of the vote of the county of Bullock (con- taining 1,061 votes), should be rejected, although the same was in due form and with the names of the proper officers signed to it, because it appeared that the canvass was made by a usurper, a stranger, a man " who had no legal conuection whatever with the election, and no right to the possession of any of the papers." It is urged that although the judge of probate was not a justice of the peace, we must regard him as such de facto. Lord Ellenborough said, in The King vs. The Corporation of Bedford Level (6 East., 368) : An officer de facto is one who has the reputation of heing the officer he assumes to Jbe, and is not a good officer in point of law. Charles O'Conor, in his argument before the Electoral Commission, said (see Electoral Commission, page 132) : The de facto officer is one who somehow has clothed himself with the reputation of being the officer, and in relation to that person the law, with its wise conservation, has declared that during the period that the person pretending title to the office was in ap- parent possession of all its powers and functions, and exercised the duties of it, his acts, as it respects persons who in the ordinary course of things were obliged to rec- ognize him and to act under him, and in conformity with his directions and his power, shall be esteemed valid, that individuals may not be deceived by this species of disorder or temporary insurrection that has broken in upon the functions of government. The principle does not apply to the case under consideration. Here the judge of probate did not claim to be a justice of the peace; D0NNEL1A' VS. WASHBURN. 465 lie did not exercise the duties of the office under color of law; he did "not exercise them at all ; he distinctly claimed that he was a judge of ptobate and nothing else. It has never been pretended, in any court in the world, that when A B asserts himself to be the incumbent of one office a presumption of law arises that he holds another, an entirely dif- ferent, and (as in this case) an incompatible office. A party claiming to be a judge of an election precinct, or a sheriff, or a jiidge may deceive and mislead innocent third parties to their dam- age ; and hence the law wisely says that he who deals with such officers shall not be required to go back and inquire into every particular of their title. But in this case there is no pretense that any one was or <;ould have been misled by the declaration of the judge of probate that he was the judge of probate. Neither is this a collateral proceeding between third parties. The , validity of the return itself, and the right of the judge of probate to act, are the very questions in issue. The canvassing board of Isanti County was part of the machinery by which the votes cast for member of Con- gress in that district is to be brought to the knowledge of the House of Eepresentatives, " the sole judge of the election returns of its members." "It must also be remembered that in the cases cited, as decided by former Congresses, the votes of townships were cast out because the boards of election judges, or the clerks thereof, were not constituted according to law. This being the law as to mere precinct 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 pre- cincts of the county are involved? An election judge can only rule out a few voters, a canvassing board may rule out the votes of entire town- ships. Although the canvassing board is a ministerial body, neverthe- less there are many preliminary questions upon which they are called to decide, and which require the exercise of their best judgment. Among these are the following: Whether the returns are the actual re- turns or forgeries ; whether they are so informal or irregular as to pre- vent the board determining what thevote really was; if two returns come in from the same precinct, which is the proper return ; if votes are cast bearing a name nearly the same or somewhat similar to the name of one of the candidates, whether they should be counted for such candi- date; if votes are cast for A B (who is a candidate for Congress) as a candidate for the State legislature, whether such votes should be re- turned for him as a candidate for Congress. These and a hundred other similar questions may arise requiring the exercise of judgment; and per consequence the functions of the board of county canvassers is as far superior to the functions of mere election officers as the powers of a State canvassing board are above the powers of a county canvassing board. How important, theti, does it become that the county board of canvassers shall be constituted in strict conformity with law, and that no usurpers shall be permitted to intrude into and control its delibera- tions. In the case of Delano i'.9. Morgan, Ohio (2 Bartlett, page 171), it seems that a person acted as one of the judges of election who was believed to have been a deserter, but had never been convicted of the crime. The Committee on Elections say (and the House sustained the report) : In thecaseof Howard I's. Cooper, (Cont. Elect. 1864-'65, page 282), the returns ofVan Buren Township were rejected becanse there were only two judges. If a return is un- trustworthy when one of the judges is absent, it is certainly more so if the vacancy is filled by a person disqualified to act. Two competent judges are certainly more re- liable when acting by themselves, than when advised, directed, and in part over- juled by a third, pronounced by the law unfit for the trust. H. Mis. 58 30 466 DIGEST OP ELECTION CASES. In Morgan vs. Delano, the disqualification of this third party was in- ferential ; for as he had never been convicted of desertion the presump- tion of law was that he was not guilty ; but in the case of the canvass- ing board of Isanti County the disqualification of the judge of probate^ was statutory, absolute, and appears on the face of the return. If the objection to this return was purely technical we might hesi- tate to reject it ; but it appears that the bona fides of the vote were put in issue by the pleadings. The contestant, Donnelly, in his notice of contest, article VIII, de- clared : That the votes alleged to have been cast for you (Washburn), at said election in the county of Isanti, in said district, were not cast or counted for you, or returned or canvassed as provided by law. There are here four averments : (I) That the votes were not cast ; {2y that they were not counted (by the precinct ofQcers) ; (3) that they were not returned as provided by law ; (4) that they were not canvassed as provided by law. The contestant having established by the return it- self, the truth of the last two charges, it became the duty of the sitting member to prove by a counting of the votes in the ballot-boxes that the votes were actually cast as claimed by him, and by proper testi- mony that they were duly counted by the precinct officers. As he has failed to do this, the presumption of law is that he was unable to do it^ There was no obligation upon the part of the contestant to prove or disprove votes that had no existence before the committee in any legal return, while Mr. Washburn well knew that the fact of any such vote being cast in the county was denied by contestant and that the burden of proof was on him to prove it. The committee has no way to ascer- tain the votescast except by the official return, and, where this is mani- festly void, by testimony showing what the vote really was. POLK AND KITTSON COUNTIES. The return upon which the votes of these counties is based is ex- tremely imperfect. It is as follows (page 64) : Abatract of votes cast in the county of Polk ^ Kittson and State of Minnesota at the general election held in the several townships and wards of said county on the first Tuesday after the first Monday, being the fifth day of November, A. D. eighteen hundred and seventy-eight (1878), for members of Congress, taken from the official returns. MEMBER OF CONGKBSS— COlfGRESSIONAL DISTRICT— NAMES OP CANDIDATES. Names of townsliips and wards. Bygland Parley Vmeland Posnm Andover Red Lake Palls Lowell McDonaldville let district Pisher Huntsville Nelly Crooketon Kittson Co., Tamrao River . Kittson Co , Two Rivers Total nnmter of votes 32 3 9 2* 35 T 50 21 78 & 26 10 36 15 23 37 5t 4S 19 41 213 45 109 1 74 1 182 DONNELLY VS. WASHBUEN. 467 We do hereby certify that at said election W. D. Washburn received eight hundred and thirty-two (832) votes for member of Congress ; I. Donnelly received one hun- dred and eighty-two (182) votes for member of Congress. A. YVERNAULT, County Auditor^ Attest : D. C. PALMER, T. A. HARRIS, Justices of the Peace. There is an unorganized county of Kittson in the third Congressional district of Minnesota, as appears by the abstract of Totes returned by the secretary of state (page 347), and there is also an organized county of Polk ; bnt there is no " county of Polk and Kittson." (See page 346.) And there is no law linking these counties together. It appears by the testimony (page 40) that "the county of Kittson is not attached to any other county for any purpose, either judicial or election." The county out of which it was created, Pembina County, was attached to Clay County (Stat, .of Minn., 1876, [p. 127). If, therefore, any part of the above returns refer to the unorganized county of Kittson they should not have been returned to, canvassed with, or mixed into the returns of the organized county of Polk. The foregoing certificate is not a return of votes cast in Polk County or of votes cast in Kittson County, but the vote is lumped together as the vote of " the county of Polk and Kittson," and there is no such county in the district. And if we at- tempt to separate the precincts in Kittson County from the precincts in Polk County, so as to enable the county of Polk to be counted by itself, we are met by the fact that Farley is shown by the testimony (page 226) to be in Kittson County, although there is nothing on the face of the re- turn to show that fact. There is no evidence to show in which county the precincts of Bygland, Vineland, Folsom, Andover, Lowell, McDon- aldville, first district, Huntsville, and Nelly are situated. Neither does it appear by the return or in the evidence that the county auditor and justices of the peace who signed the return held those ofBces in Polk County or in Kittson County, or in any other county. Moreover it appears (page 233) that there were but 86 legal votes cast at Crookston, while the total vote returned as above was 258. There were therefore 170 illegal votes cast at that precinct ; they were principally the railroad hands referred to in this report in our consideration of the subject of bribery, every one of whom was paid for his vote. It also appears (page 234) that there were but 40 residents of the precinct of Fisher, while 88 votes are returned from that precinct. The precincts in the county of Kittson were not legally established, there being no law to authorize the governor to create election precincts in wholly un- organized counties. There were no registration lists at these precincts ; cigar-boxes and candle-boxes without locks or keys were used for bal- lot-boxes. In one precinct the voting place was a railroad car ; in an- other a railroad depot. Nearly if not quite every vote polled in two pre- cincts of the county, as we have shown, was a bribed vote, and cast in the majority of instances by men who were not legally residents of the county and entitled to vote therein. This fraudulent vote of Kittson County having been inextricably mixed into whatever legal votes were cast in Polk County, it became the duty of the sitting member to go behind this very defective certifi- cate of "the county of Polk and Kittson" and prove aMitw^e what townships were in Polk County, and by a count of the ballots in the ballot-boxes of those townships establish beyond question what votes 468 DIGEST OF ELECTION CASES. were legally cast therein, to reject the return. Having failed to do this we are constrained THE UNOpaANIZBD COUNTIES. It appears by the evidence that a number of the counties in the third ■Congressional district of Minnesota are unorganized counties. The fol- lowing table gives the names of the counties and the votes cast therein : 1^ Big Stone . Douglas . . - Kanabec . . Lake ■Otter Tail. 45 682 109 29 29 489 24 755 Majority for Washburn . 1, 805 1, 297 508 It was decided by the supreme court of the State of Minnesota, July 29, r878, in the case of State, eoc rel. Lindholm, vs. Parker, that the county of Big Stone was not a^i organized county, inasmuch as the legislature had never passed an act declaring it organized. The court held that neither an act defining the boundaries of a county nor the vote of the people therein electing county officers constituted a county organized ; the legislature must recognize the action of the people by explicitly de- claring it an. organized county. The counties of Douglas, Kanabec, Lake, and Otter Tail are in the same condition as the county of Big ^tone. Mr. Washburn did not produce any statute to show that the leg- ' islature had ever declared either of them organized. It follows that if these counties are not organized couaties there can be no county officers in existence therein ; and that those who claim to have canvassed and returned the votes of the couuties had no power to do so ; nor can there be any legal election precincts therein. But your committee are not disposed to take a technical view of this matter, and although we are of opinion that the counties in question are not legally organized, never- theless, as the votes returned are conceded to have been actually cast therein, and there is no charge of fraud, we have concluded that the four ■counties last named should be regarded as de facto organized counties, no far at least as election purposes are concerned. We also admit the vote cast in the unorganized county of Big Stone, for the reason that it is admitted by contestant that the vote was actually cast; and there is no charge of fraud in connection therewith. We therefore admit the votes of these unorganized counties. They ^ive a majority for Mr. Washburn of 508. It will be seen that in the foregoing report we have not rejected the vote of any county because it was unorganized ; neither have we re- jected the vote of any precinct because of the numbering of the ballots perse, but because such numbering was one of the incidents of a system of fraud and intimidation ; neither have we rejected the votes of any counties for mere informalities on the face of the returns, but only for those gross irregularities which were manifestly incompatible with a Jegal canvass of the votes. The following table summarizes the results of our investigations in ;this case : DONNELLY VS. WASHBURN, 469 SUMIIABY. The total vote returned for William D. Washburn was 20, 942 This Includes the supplemental returns from Hennepin County. Add to this the votes cast but not returned for him, in the counties of Stearns and Morrison, viz : Steams, 144 ; Morrison, 68 — total 212 21,154 Deduct : The numbered ballots oast for him in the seven precincts of Minneapolis, viz 2,282 The vote returned for him in the county of Isauti 538 The vote returned ibr him from ' ' the county of Polk and Kittson " 832 3,652- 17, 502 Deduct also the folIowingbribedvotesCnotincluded in the bribed votes already rejected in Polk and Kittson County), vfhere the evidence shows the party received money and voted for Washburn : (1) Oluf Larson, Saint Paul ; (2) Abraham Werrick, Saint Paul; (3), William M. Leyde, Cottage Grove; (4) Christian Heyer, Afton ; (5) John C. Oleson, Minneapolis; (6) A. M. Schaaok, Minneapolis ; (7) Karl Fintler, Minneapolis ; (8) Henry Monroe ; (9) Sevit Mahla, of Minneapolis; (10) Louis Knudson, Minneapolis; (11) Louis Paulson, Minneapolis ; (12) W. R. Metcalf, of Crystal Lake ; (13) Peter Quady, Minne- apolis ; (14) Louis N. Gaynor, Minneapolis ; ( 15) Poter Engberg, Minneapolis; (16) Bernard Cloutier, Minneapolis; (17)Toleff G. Fladeland, of Sauk Cen- ter; (18) J. V. Brower, of Saint Cloud; (19) A. J. Clark, Little Falls; (20) Thomas Kitowski, of North Prairie; (21) Mr. Buss, of Long Prairie; (22) Henry Armstrong, of Two Rivers [this list does not include a large number who admit the receipt of money from Washburn or his friends but claim that they voted for Donnelly] — ^total 22 17, 480 Total vote returned for Ignatius Donnelly 17,92 Add to this the votes cast but not returned for him from the counties of Stearns, Morrison, and Douglas viz: Stearns, 396; Morrison, 165; Douglas 61: total 622 18, 551 Deduct: The numbered ballots oast for him in the seven precincts of Minneapolis, viz .... 522 The vote returned for him — in the county of Isanti 137 The vote returned for him from the county of Polk and Kittson 182 841 17, 710 Total vote for Donnelly 17,710 Total vote for Washburn 17, 480 Majority for Donnelly j 230 We would therefore report and recommend the adoption by the House of the following resolutions : Resolved, That William D. Washburn is not entitled to his seat as a member of the Forty-sixth Congress of the United States, as Eepresent- ative from the third Congressional district of the State of Minnesota. Beselved, That Ignatius Donnelly is entitled to his seat as a member of the Forty-sixth Congress as Eepresentative from the third Con- gressional district of the State of Minnesota. VAN H. MANNING. S. L. SAWYER. E. F. ARMFIELD. F. E. 73ELTZHOOVEE. W. G. COLEEICK. 470 DIGEST OF ELECTION CASES. 'viEJ'ws OF THE m:inoeity. Seld, That no bribery on the part of contestee or his agents is proven, the only evi- dence touching on that point being hearsay. Bribery must be proved* and not presumed. Fraud or bribery does not vitiate what it does not impregnate. Seld, That, notwithstanding ballots are numbered in the absence or violation of law, they are to be counted. Meld, That where the law requires certain acts to be performed by a board of three or more persons, it is sufficient for a majority of such board to act and join in the certificate. Mr. Keifer, from the Committee on Elections, submitted the following- VIEWS OF A MINORITY. The contest in this case arises over the election for member of the House of Eepresentatives in the third Congressional district of the State of Minnesota, held on the 5th day of November, 1878. This district is composed of thirty-eiglit counties, situate in the northern part of that State, and comprises a very large territory, which has been very rapidly settling up by emigration from other States in the Union. The returned vote at that election for member of the House of Representatives was as follows : W. D. Washburn aO,942 Ignatius Donnelly 17, 929 Scattering 40 1 he returned majority for Washburn was 3,013 This district was created on the 22d day of February, 1872, by act of the legislature of Minnesota. It has always been Republican by a large majority. The Republican majority for Congressman in this district in 1872 was 6,449 ; in 1874, 2,319 ; in 1876, 2,096 ; in 1878, 3,013. The Re- publican majority in this district for governor in 1877 was 8,153, and in 1879 Pillsbury's (Rep.) majority over Rice (Dem.) was 5,681. A portion of the committee have decided to add to Mr. Washburn's returned vote of 20,942 The unreturned vote in the counties of Steams (144) and Morrison (88) 212 Thus increasing his vote to 21, 154 From this it is proposed to deduct by throwing out and rejecting — The numbered ballots cast for him in seven precincts of Minneapolis, to wit 2,282 The entire vote retux'ued for hi m i n the county of Isanti 538 The total vote returned for him from the counties of Polk and Kittson. . 832 Alleged bribed votes - . . 22 Total to be deducted 3, 674 Leaving Mr. Washburn's vote 17, 480 It is further proposed to add to Mr. Donnelly's returned vote of 17, 929 The uureturned votes alleged to have been cast for him in the counties of Steams, Morrison, and Douglas 622 Thus increasing his vote to 18,551 From this it is proposed to deduct the numbered ballots cast for him in the city of Minneapolis 522 The vote returned for him in the county of Isanti 137 The vote returned for him in the counties of Polk and Kittson 182 Total to be deducted - 841 Making Donnelly's vote 17, 710 And his majority over Mr. Washburn 230 DONNELLY VS. WASHBURN. 471 The testimony in this case, and the arguments of counsel, have com- pelled the committee to examine a great many questions foreign to the contest, as made on the contestant's notice. That notice consists of nine paragraphs, very few, if any, of which state, as required by the law of Congress, except in very general terms, the grounds upon which the contestant relies. The law, as set forth in section 105 of the Revised -Statutes, requires that the contestant, in his notice, shall specify partic- ularly the grounds upon which he relies in the contest. This the con- testant has not done, although the nature of his contest is such that he could have done so, and should have been required to do so; or, other- wise, the great mass of h is testimony should have been disregarded. The United States statute requires that "the testimony to be taken by either party to the contest shall be confined to the proof or disproof of the facts alleged or denied in the notice or answer," &c. (R. S., section 105.) It may be true that the law of Congress prescribing the mode of practice to be followed in the House in contested-election cases is not absolutely binding upon the House in view of the provisions of the Constitution of the CFnited States (Article I, section 5), which provide that "each house shall be the judge of the elections, returns, and qualifications of its own members." But it might work very great injustice to a con- testee to require him to meet a case outside of this parliamentary-prac- tice act, without any previous notice to him that the House intended to depart from it in a material respect. Until the House itself lays down and prescribes a different mode of -contesting elections before it, the parties to the contest have a perfect right to rely upon the statute being strictly observed and followed. ^fMcCrary's Election Laws, sections 341-3, 348-9, 353; Fiuley m. Bisbee, Rep. 95, page 28.) It has frequently been held by the House that, notwithstanding proof was offered sufficient to show that frauds had been committed, such proof would not be considered because the contestant did not specifi- cally notify the contestee of such ground of contest. For a full discussion of this point, attention is called to the views of the late Speaker Kerr in the case of Delano vs. Morgan (Com. Elec. Oases, 1865-'71, pages 176-8). Before proceeding to consider the case as made by the notice and on the testimony, it is thought proper to refer to the character of evidence relied upon by the contestant. It will be found by an examination of the record that there is very little, if any, testimony which would be received or considered in any court of justice in this or any other civ- ilized country. The testimony may be, generally, denominated hearsay. In so far as it relates to the question of bribei-y or illegal voting very little of it rises even to the dignity of hearsay when scrutinized. It is understood that certain members of the committee, in order to arrive at the conclusion reached by them, have considered all, or very nearly all, of such incompetent testimony found in the record. With the single ■exception that in the case of a voter who has voted for the sitting member, declarations of the voter are inadmissible. There are author- ities, though they even are doubted, to the effect that the declarations of a voter, though hearsay evidence, are competent to prove his want of qualification to vote. It is seldom, if ever, proper to regard hearsay statements as competent evidence. Regarding the testimony as affect- ing the voter, and no other person, his statement as to his qualification to'^vote may be taken as an admission against him. The ordinary rules of evidence apply as well to election contests as to other cases. (See McCrary's American Law of Elections, section 306.) We do not think 472 DIGEST OP ELECTION CASES. it necessary to cite many authorities in support of this proposition, but we here give a few, as this question is a very important one in the determination of this case: AUTHORITY AS TO HEARSAY EVIDENCE IN CONTESTED-ELECTION CASES BEFORE; PARLIAMENTARY BODIES. In Cushing's Law and Practice of Legislative Assemblies, at section 210, page 76, the following doctrine is laid down: "The same general rules by which courts of law are governed in regard to evidence in proceedings before them prevail also in the investigation of cases of controverted elections; but inasmuch as a legislative assembly, touching things appertaining to its cognizance, is ' as well a council of state and court of equity and discretion, as a court of law and justice,' the legal rules of evideuce are generally applied by election com- mittees, more by analogy and according to their spirit, than with the technical strict- ness of the ordinary judicial tribunals." Section 11. "The rule stated in the preceding paragraph relates of course only to- investigations by the testimony of witnesses or other evidence before the assembly or- its committees, but where the testimony is contained in depositions, they ought to be , taken according to the law of the State where they are taken." Section 742, page 293. "The proceedings of a legislative assembly frequently render it necessary to institute inquiries into matters of fact, and of course to receive and judge of the various kinds of evidence upon which human conduct is predicated, and which may be submitted to its consideration. In the every-day affairs of life, and in reference to matters in which their oum interests are alone involved, men act upon every kind of evidence which has even the slightest tendency to induce belief. Butin regard to affairs in wMch parties are adversely interested, and iniohich there are conflioiing rights and claims to he adjudicated, the law has wisely provided that only such evidence shall be received, and under such circumstances, as shall afford reasonable security both against designed falsilication and unintentional mistake." Section 743, page 293. "The rules of evidence by which courts of justice are gov- erned, and by which their proceedings are regulated in the iuvestigation of the cases which come before them, make a part of the civil rights of the citizens, as much as the rules regulating the acquisition, the enjoyment, or the transmission of property, or which govern any other matter of civil right; andwhen aquestion of the same nature is pending in the legislature, involving private interests only, no good reason can be assigned why the rules of evidence should not be the same. It would seem reasonable^ therefore, to regard it as a rule of parliamentary practice that when the private in- terests of individuals are the subject of investigation, or, in other words, where the- investigation is a judicial one, and so far as it is of that character, the same or analogoua^ rules of evidence should be applied as would be observed in the investigation of similar interests in any of the courts of law or equity, and this appears to be the rule which has prevailed in modern times." Cases of contested elections in Congress, 1834 to 1865. White i>8. Hanis, page 257.— In this case, on pages 264-5, the question of the ad- missibility of hearsay testimony is discussed; it was rejected. Report by Hon. Thomas L. Harris. Same book, page 33. (IngersoU vs. 'Sayloi:.)— Syllabus : "Where extensive frauds were alleged, the committee refused to receive hearsay evidence." On page 34 the question of the hearsay evidence is discussed and the evidence re- jected. Same book, page 19. (The New Jersey Cas^.)—Stillabus : "Held by the committee that hearsay declarations of the voter should be rejected." On page 24 of the report of this case the committee, in discussing the question of what votes were actually cast at the polls, use this language : "The first proposition involved the inquiry whether the vote was actually cast at the polls, and for the ascertainment of this point the committee necessarily resorted to parol proof as the best evidence which the nature of the case would admit of, the laws of New Jersey not requiring the poll-lists to be preserved as a record of the actual voters. Mere hearsay declarations of the alleged voter as -to the fact of his having voted have been uniformly rejected." Case^ of contested elections in Congress, 1865 to 1871, page 822. John S. Reid vs. George W. JnWan. —Syllabus : "Hearsay evidence inadmissible."^ (See also McCrary's Law of Elections, section 306.) Hearsay evidence is not admissible to prove bribery as a disqualification, but only to. DONNELLY VS. WASHBUKN. 475 affect or auuul individual votes. (Coweu & Hill's Notes, 704-7 ; 3 MuCord (S. C.) Rep.^ •230, note; People vs. Pease, 27 N. Y., 45, 49.) It is proper to observe that much o,f the hearsay evidence relied upon consists only of conclusions drawn from conversations held after the election, which are always unreliable, and as a general rule, even though the testimony would otherwise be competent, are regarded as very dan- gerous if at all admissible in a court of justice. Of this latter class of testimony a learned judge has said : No class of testimony, perhaps, is more unreliable, and a more frequent cause of error in courts of justice, than the narration of conversations, real or pretended. The meaning and intention of a person in a conversation often depend much upon gesture, attitude, mode of expression, or peculiar attending circumstances, known, perhaps, 1o^ but few present. A cooversation may not be fully heard by the witness, imperfectly recollected, or inaccurately repeated, when the omission or addition of a single word, or the substitution of the language of the witness, under color of bias or excitement, for the words actually used, might change the sense of an entire conversation. This is apparent from the irreconcilable contradictions daily manifested in the narration of the same conversations.from the mouths of different witnesses. The liability to error,, in this kind of testimony, would be greatly increased by allowing witnesses to add their own conclusions, or understandings, from the conversation related, or their infer- ences as to the understanding of the parties to the conversation. Such latitude would break down an imjiortant barrier which protects judicial investigation from error and falsehood. The understiinding or inferences of witnesses are very frequently formed from bias, inclination, or interest. And a witness's understanding or inference from a conversation or transaction rests entirely in his own mind, and his consciousness of" falsehood would be incapable of proof; so that there could be no possibility of con- victing a witness of perjury on the ground of such evidence. (.Judge Hartley, 3d Ohio St., p. 412.) It may be further noted that the charge of bribery, like that of fraud,, must be proved and not presumed. This is a universal rule of law when it is sought to convict a party of a crime. There is a difference of opinion among members of the committee as to what rule should pre- vail in a con tested -election casein proving the crime of bribery. Some members of the committee maintain that it should be proved, as in criminal cases, ^^ beyond a reasonable doubt.^^ Others are satisfied with the rule which requires the testimony to be '■ clear, satisfactory, and con- vincing," but all should agree that so serious an offense as bribery should be proved and not presumed. THE CHARGE OP BRIBERY. Before going into the testimony and considering it in the light of proper rules of evidence, it should be said that there is evidence tending to show that in this district the friends of the contestant and contestee both used money to poll the district (pp. 86-7 and 255), and to provide means for getting to the polls voters who were remote from the polling places, and who were often without conveyances of their own in which to travel to the polls on election day. Money was undoubtedly spent to pay can- vassers before the election, and. in some instances men were employed at the polls to hold tickets for the respective parties. The district is a very large one in point of population and in extent of territory, and in consequence of this, greater effort was required to get out a fnll vote. Some money was also expended to pay speakers to go over the district. The committee is not prepared to say that such use of money is entirely illegitimate. It is very common, if not universal, in all contested elec- tions throughout the United States for candidates and their friends to use such means to secure votes. Presidential elections are not excep- tions in this respect. Certain members of the committee rely very much upon the fact that 474 DIGEST OF ELECTION CASES. the sitting member was not willing to dignify the case of the contestant liy calling witnesses to disprove the alleged testimony offered by him. It is a sufficient answer to this to say that there is very little in any of the testimony offered by the contestant for the purpose of proving bribery that is in any sense worthy of being met by any testimony, even though it could be regarded as competent testimony. A reading of the testimony ■of the several witnesses will show in most, if not all, the cases that it proves nothing that is worthy of answer. The witnesses called in many instances only make clear the fact that they were disappointed parties who desired to be bribed by being paid large sums of money, which they were disappointed in obtaining. The first witness mentioned in the report of the committee, a Democrat, by the name of Charles Berens, of Morris on^County, is an example of this. He testifies that he wrote a letter to Mr. Washburn requesting to be paid fifty dollars to support him. It is not clear that this letter was ever received by Mr. Washburn in person. Mr. Berens received no answer from Mr. Wash- burn to this letter, and he received no money from Mr. Washburn. Some of the committee, however, lay much stress on the fact that Mr. Wash- burn, or some of his friends, did not, prior to the election, indignantly resent the proposition made to him by Berens as an insult. There was no good reason why Mr. Washburn, or any of his friends, should have ■done so. They were undoubtedly anxious not to make any enemies, even though they were wholly unwilling to pay a man for his support. It will be noticed that Mr. Berens did not propose to sell his vote to Mr. Washburn, but simply, as appears by the whole testimony of this wit- ness, to work for Mr. Washburn, presumably to get out voters, or to induce, by argument or otherwise, other persons to vote for him (p. -300). It appears from the testimony of this witness that he wrote also to Mr. Donnelly, to solict him for money as an inducement to support him at that election (p. 301). This witness says that had he received the fifty dollars which he solicited, he would not have supported Mr. "Washburn ; and in the conclusion of his testimony he utterly disproves the charge, so far as his knowledge goes, that any money was used by Mr. Washburn or his agents to influence persons to vote for Mr. Wash- burn at the election. As Berens opened negotiations with Donnelly and supported him (p. 301), the only presumption that can arise, if any, is that he bribed him. This witness refers to a Mr. Brower, who, it is claimed,' acted for Mr. Washburn in the vicinity of where he lived. But it turns out that, notwithstanding his vigilance in trying to find that somebody had been bribed, he utterly failed. The following questions to this witness, and the answers thereto, set at rest this witness's testi- mony, so far as bribery is concerned (Record, p. 301): Q. Do you know of Brewer's paying any money to any person for liis vote for member ■of Congress or for any other candidate to be voted for at the last electon, held No- vember 5, 1878, or during the canvass immediately prior therto? — ^A. I did not see him give any. Q. Do you know of any money being paid or promised by William D. Washburn or his agents, or by any person or persona acting for him with his knowledge, to any person or persons during the last election, held November 5, 1878, or during the can- vass immediately preceding said election, for such person or persons' vote or votes or influence for William D. Washburn for member of Congress for the third Congressional •district of Minnesota? — Noi that I know of. Q. Do you know of any person in this vicinity trying to corrupt a candidate for Congress by demanding of such candidate |50 as a consideration for his supporting such candidate at said election ? — A. I did it myself. There is an attempt to show that in the county of Kittson certain j)ersons were bribed to vote for Mr. Washburn. If this were true, there is no evidence even tending to show that he was in any sense a party to DONNELLY VS. WASHBURN. 475 it. The couiraittee seem to think that the num>ber of votes cast iu this county was too great. The total vote of the county was 184. It is true that two witnesses testify on this point. The first, G. C. Morton, says .{p. 125), "to the best of my knowledge there were four actual settlers iu this county"; and theu lie adds, "that is all I know." The second, DeuuisReardon, says (p. 144), to use his own language, referring to this «ame county, " it was unsettled, so far as I saw, except the railroad." On this testimony it is proposed to find that a large number of persons voted who were not legal voters, and also that they were bribed. The committee fails to take into account that in new countries it is along the railroad chiefly that men settle, and that settlements spring up as rap- idly as railroads are built. The testimony of Reardon shows that there were people settled along the railroad, and it is this class of men who are denominated as " harvest hands and tramps, who had not been in the State long enough to vote.^' The witness Morton, so much relied upon, says iu his testimony that he had only resided in Kittson County eleven days before the election, and, of course, he could have had very little means of knowing who were residents and who were not ; and on a cross-examination it is made to appear that he did not know a single man who was not a resident of the county at the election on November 5, 1878. The following is an extract from the testimony of this witness {Record, p. 128): Q. How long had you beeu in Tamarack, in Kittson County, prior to November 5, 1878? — A. I had been there eleven days before election day. Q. With how many of the eighty or ninety men in the employ of Webster & White at their wood-camp at or near Tamarack were you personally acquainted on the .5th •day of November, 1878? — A. About forty of them. Q. Do you know of your own knowledge any of the eighty or ninety men so em- ployed at the wood-camp of Webster & White, at or near Tamarack, who had not resided in the State of Minnesota more than four months and in the election precinct more than ten days prior to November 5, 1878? If so, state who. — A. I da know, of my own knowledge, of men that were there less than teu days prior to November 5, 1878. I do not know of any person who had not been a resident of the State more than four months prior to Novembei 5, 1878. I cannot name all the names ; Mr. O'Neil, for one, Guss Avenger, James Nichols, John Morrison, Gtuss G-lyndon ; ten others, whose names I can't recall now. Those names that I mentioned and teu others I cannot ■call to mind are those who had not been there ten days. Q. Do you know, of your own knowledge, whether any of the persons referred to in the preceding answer as persons who had beeu there less than teu days voted at the election precinct at Tamarack, November 5, 1878 ; and, if so, whether any of that number voted for William D. Washburn for member of Congress? — A. I don't know. Q. Do you know, of your own knowledge, whether any of the persona on the con- struction train referred to in your direct examination as voting at the election pre- cinct at Tamarack on November 5, 1878, had not resided in the State of Minnesota more than four months prior to said election, and resided in that precinct more than ten days prior thereto? — A. I do not know. The worst that can be said in relation to the vote of Tamarack pre- cinct, in Kittson County, is that the persons who employed some of the voters allowed them for their time while going to and returning from the polls. This act on their part the committee does not approve. It is claimed that men were bribed to vote for Mr. Washburn at this precinct. The testimony does not sustain this claim. One G. C. Mor- ton is relied on alone to prove this charge. Aside from some conclusions stated by this witness and given without any reliable data to base them on, his statements are purely hearsay and wholly incompetent as evi- ■dence! There is some evidence to the effect that certain men were engaged in chopping wood for two men — Webster and White — by whom they were paid for their time while attending the election, but the evidence 4oes not even tend to show any bribery on the part of Mr. Washburn. 476 DIGEST OF ELECTION CASES. The evidence shows these men were not even solicited to vote for Mr. Washburn, but were allowed to vote as they pleased. Some of these men may not have been legal voters in Tamarack precinct. There is. great doubt whether, under all the circumstances, the vote of this pre- cinct should all be counted. There was no proper ballot-box, &c. (p. 309. On'the question as to whether these wood-choppers were bribed we give here the hearsay testimony of the witness Mortou to show both its in- competency and unreliability (pp. 12G-7) : Q. Did you have any conversation since election with Mr. Webster in reference to^ any payment of money for the votes of the men employed in the wood-camp ? And, if 80, state vphatit was. — A. I have had several conversations with Mr. Webster since election ; he has mentioned several times to me tbe tiict that Mr. White had received the money for the purpose of defraying the expenses of the election, and that Mr. White had not paid him his share of it. He asked me if I thought he could sue White and collect the balance due him as his half of the prceeds. He stated that Mr. White had received for the firm Webster & White one hundred and eighty-two dollars, and that Mr. White had not paid him but sixty-three dollars, which he claimed was not all that was due him. Restated that Major Hale, of this city, Minneapolis, had given Mr. White a check for one hundre dand egihty two dollars, and that the check wa» cashed by George Webster, paymaster of the Minneapolis and Saint Louis Eailroad Company. It is about the suhstauce of it. Q. Was this Major Hale Maj. W. D. Hale, who is the general manager of Mr. W. D. Washburn's business in this city? — A. Major Hale is the manager of Mr. Wash- bum's business in Minneapolis. I do not know his initials. Q. Did yon understand from Mr. Webster that the check for one hundred and eighty- two dollars referred to by you was paid to Webster & White by Major Hale to reim- burse them for the money paid by them to their workingraen who voted at that place on the 5th of November, 1H78, for their time on election day during which they did not work? — A. Mr. Webster told me that this money was to defray their expenses at the time of the election at the Tamarack. Q. Did he say what those expenses consisted of? — A. He did not. Q. Do you know what those expenses consisted of? — A. I do not ; only by hearsay. Q. State what you heard in regard to those expenses. — A. I have heard from sev- eral men that worked there that the money was received to pay for the men's time oa election .day. Q. Did you learn from any of the men at the camp who were paid for their time in what way payment was made to them ? — A. The men who worked by the day or month were allowed their regular time as if they had worked steadily ; and the choppers who worked by the cord were allowed one or two days' board ; tliey have stated it in dif- ferent ways. Q. Did you get this information from the men who were so paid or allowed board ? — A. I did. The evidence of both Webster and White utterly refutes and explodes all the statements of the witness Morton as to bribery, and it shows also^ that so far as money was paid at all to these men for their time while voting, it was done without the knowledge of the sitting member. It also shows that the men were not even asked to vote for Washburn. The contestant put both Webster and White ou the witness stand and then proceeded at once to cross-examine them. We first give a full extract from Webster's testimony (pp. 296-8) : Q. Were you a member of the firm of Webster & White, wood contractors, getting^ out wood last fall at Tamarack, Tipton County, Minnesota? — A. I was. Q. Did you state in a restaurant in Minneapolis, within the last thirty days, that "White had received money to reimburse the firm for the money paid to their employes for the time spent in voting at Tamarack November 5, 1878, or words to that effeotf — A. No, sir. Q. Did you say that you and AVhite had a dispute or misunderstanding about any money so paid to White 'I — A. Mr. White and I have had no dispute. I did not say so. Q. Did you state at that time that you had called upon Mr. Washburn in reference to money coming to you from White? — A. No, sir; I did not know there was any- money coming. Q. bid yon not say that you had made an examination at y. bank in Minneapolis, and that you found there a qheck given to White or some other party for a sum of money in payment of the money so paid to men ? — A. No, sir ; not to my knowledge. Q. Could you have said it without your knowledge? — A. No, sir. DONNELLY VS. WASHBUEN. 477 Q. Did you not say the check was for $250 and signed by William D. Washburn f— A. No. sir. Q. Did you not say, at that time and place, that you had called ui)on Washburn in reference to the money so paid White, and that you claimed your share of it, and did Washburn tell you that he would rather pay many times the amount of it than have the transaction exposed, and that he would or did make it right with you, or words to that effect? — A. No, sir; I am not acquainted with Washburu. Q. Did you have such a conversation with any one else f — A. Not to my knowledge. Q. Do you swear that you did not? — A. Yes, sir. Q. Is Mr. Webster, the paymaster of the Minneapolis and Saint Louis Railroad Com- pany, a relative of yonrs? — A. Second cousin. Q. Did your firm pay the men who cut wood for you at Tamarack a hundred and sixty or a hundred and seventy dollars or any other sum for the time spent at the polls . ou election day, Novembers, 1878? — A. We simply allowed them their time togo andvoie; I was not cashier; that is all of my answer. Q. Do you pretend to say that your firm did not pay $160 or $170 to the men for their time at the election, and you not know of it because you were not cashier?- A. Cer- tainly, if you ask a man to vote, and he says he won't vote uuless he is allowed for his time, we have a right to pay him for it. I agree to pay them, if they would go and vote according to their own taste, for their time. I don't care how anybody votes. Q. Are yon so fond of seeing men vote that you are willing to pay $160 or $170 for the mere luxury of knowing that they vote, without regard for whom they vote? — A. Mr. White told me it was simply allowing them their time for that day, and that he (White) could get enough money to balance the money expended for the time they lost in going to the election, as they did not want to go unless they got as much as they could in chopping wood. Q. Who did White tell you he was to get the money from to balance the money so expended? — A. He did not tell me, nor I did not ask him. Q. Did he ever tell you that he had got the money? — A. No, sir; I did not know what he did receive. I do not know what he received, only what I saw in the paper and his testimony. Q. Do you pretend to say that $160 or $170 or any other large sum could have been taken out of the money of the firm to pay voters and you not know three months after the transaction whether the firm had been repaid or not? — A. I presume it could as long as he paid the bills. Mr. White and I have not settled yet on our wood contract. We have been very busy and have not had time to settle our wood contract. Q. Have you had any conversation with any one at any time with reference to the repayment of the money so paid by the firm to the wood-choppers for their time on election day?— A. I had all I could do election day to attend to my business as judge of election," and did it to the best of my ability for both parties. Not that I know of. Cross-examined : Q. Did you pay anything for votes on the election day at Tamarack, November 5, 1878, or did Webster'& White pay anything for votes on said day at said place, or did you simply allow the men their time to go to the polls and vote for either Mr. Donnelly or Mr. Washburn for member of Congress as they saw fit ? — A. We simply allowed them their time to go to the polls and me their otvn judgment in voting. Q! Did you try to influence the men in your employ at Tamarack to vote for William D. Washburn for member of Congress at said election held at Tamarack November 5, 1878 ?^A. No, sir. Q. Did you ask one Morton, then in your employ, to use his mfluence with the men for Washburu ?— A. No, sir ; not to my knowledge. Q. Do you know of any money being paid or promised by William D. Washburn, or his agents or any person or persons acting for him, with his knowledge, to any person or persons for his or their vote or votes or influence for William D. Washburn for member of Congress from the third Congressional district of Minnesota, at or prior to the election held November 5, 1878 ?— A. No, sir ; not to my knowledge.. Redirect examination : Q. Who were you in favor of for Congress last fall ? — A. As I was always a Repub- lican, I voted that way last fall. , . A-, -.n Q. Were not most of your wood-choppers cutting wood by the cord at $1.10 per cord ? — A. Yes. Q. Was not their time their own ?— A. It was; but I told them if they would go and vote as they saw fit I would allow them their time, as they would not go with- out it. ,.,.,,. i, Q How could you allow them their time when their time was their own, as they were not hired by the day or month ?— A. If they had not went to the poUs they would have cut a cord aud a half of wood, which would have amounted to $1.50, so we allowed them the same ; did not care who they voted for. 478 DIGEST OF ELECTION CASES. Q. Abont how many of them voted f — A. I judge about 50 or 60 voted ; there iniglifr have been more or less. Q. Then you paid for about 75 cords of wood which you never gotf — A. I did not say so. Q. You said that White told you that he could get enough money to balance the money paid for the men's time in voting. If the men had all voted for Donnelly would he have got the money ? — A. Yes, sir. Q. Who would have paid it ? — A. I should have paid it, and calculated that you, Donnelly, would have made it good. Q. Bat as the votes were all but one for Washburn, did you calculate that Wash- burn would make it good?— ^A. No, sir ; the other answer was said in joke. Here are also full extracts from the testimony of the witness White, of the firm of Webster & White (pages 306, 307, 308, 309, 310) : Q. Was an election held at Tamarack on the 5th of November, 1878, for Congressman and State and county ticket ? — A. There was an election held for State oflicers and Congressman, but no county officer, I think. The county was unorganized at thafc time. Q. Did you vote at that election there ? — ^A. Yes, sir. I decline to say for whom I voted. Q. Did any of the men in your employment vote at that election ; and, if bo, how many? — A. Yes, sir; I guess all the legal voters voted ; cannot tell exactly how many. Q. Did a majority of your men vote there? — A. Yes, sir. Q. Did two-thirds of them vote ? — A. I should judge, may be, more than two-thirds of them voted. Q. Were the men paid for the time consumed in voting? — A. They were allowed their time. Most of the men said they would like to go and vote ; didn't feel able to lose the time. Most of them were earning good wages. I told them to go and vote and I would allow them their time. Q. Do you mean that you would allow them pay for the time spent at the polls the same as if they had been working for you all the time? — A. Do not know that I told them that; I told them I would allow them their time. Q. Did you, in settling with them, pay them for the time they were absent from work on that 5th day of November, 1878? — A. I didn't settle with them; I had a bookkeeper for that purpose. Q. Was anything deducted from the pay of the men who worked by the day or the month on account of absence at the election that day ?• — A. No, sir. Q. In settling with the men who cut wood by the cord, was not an allowance made on their bill for board of the time spent at election that day? — A. I do not know. Q. Were you present when any of the men were settled with ? — A. Yes, sir. y. Do you not then know that the wood-choppers who chopped by the cord were allowed one or two days' board for the time spent at the election? — A. No, sir. Q. Do you swear that such an allowance or some other allowance was not made to those men ? — A. I said before they were allowed their time. Most of them were work- ing by the cord, a few by the month — a very few. Q. If each man was to receive so much for each cord of wood cut, whether he cut ten cords or one hundred, was not his time his own, and what do you mean when you say you allowed him his time ? — A. I mean they said they wanted to go and vote, but they could not lose the time; that in all probability, during the time spent in going to, staying at the polls^and returning, they might have cut a cord and a half or two cords of wood. Q. How much were you paying them for cutting wood by the cord? — A. One dollar and ten cents per cord. Q. Then you paid these men for a cord, a cord and a half, or two cords that they never cut for you ? — A. Don't know as we allowed them any such thing as that ; I think we allowed them about what they could have cut in a day. Q. What wag the gross sum that you paid or allowed in this way ? — A. I don't know ; I think $160 or i|170. Q. Has that money been repaid to you ? — A. Yes, sir. Q. Who by? — A. By a man named George B. Webster, who gave me a check on the bank ; think it was the First National, of Minneapolis. Q. What was the amount of that check? — A. It was either $168 or |172. Q. Who is this Mr. Webster ? — A. The paymaster of the Minneapolis and Saint Loui» Railroad. Q. Who is the president of that road ? — A. W. D. Washburn. Q. How did the paymaster of the Minneapolis and Saint Louis road happen to pay you for wood cut, or the time of your employes, under a contract for the Saint. Paul and Pacific Road ? — A. Well, I will tell; he was a friend of mine, and I went to him, asked him if he could let me have |168 or $172, or loan me that amount. He took out DONNELLY VS. WASHBUEN. 479' his little bank-book, said he bad just about that amount in the bank, and, if it would accommodate me, he would let me have it. It was Ms individual olieck. Q. Have you ever repaid him that amount ? — A.. No, sir. Q. Did you give him your promissory note for that amount at the time he gave yoa the check ? — A. No, sir. Q. Whose name was to the check you received for that money ? — A. George B. or G. B. Webster ; can't tell exactly when it was giveu. Quite confident it was after elec- tion ; might have been eight or ten days after election. Cross-examined by F. Hooker, Esq., on behalf of contestee : Q. Was there anything said to the men by yourself at the camp that tended in any way to unduly influence those men to cast their votes for either W. D. Washburn or Ignatius Don- nelly for member of Congress at the election held at Tamarack, Novembers, 1878 f — A. No, gir ; some of the men said they would like to go and vote. Some of the men asked me if I had any choice ; I said I was friendly to Mr. Washburn ; that they could vote for either Mr. Donnelly or Mr. Washburn as they saw fit. This was in substance all I said to the men about voting for either Mr. Washburn or Mr. Donnelly. When they came to count the votes I was much surprised to find that Mr. Donnelly had no more votes. I did not know which way the vote would go. I did not know but Mr. Donnellyt would get 40 or 50 or 60 votes. Didn't ask any one how they would vote. I suppose there was an opportunity for all to get tickets. There were several settlers in that vicinity. Everything was quiet and orderly at the.polls. The polls were open at exactly nine and closed at five. No person voted at that precinct who was not known to the judges to be residents of the precinct. In Morton's testimony he mentioned the names of Nichols and Morrison as illegal voters or from Canada. I know they did not vote. They said to me that they thought they had no right to vote, and I told them not to vote if they thought they were not legal voters. Q. How long had you known General Washburn ? — A. Seven or eight months ; was ordinarily friendly to him. He always treats me respectfully, and I also treat him so.. Q. Did you go to Morton to get him to use his influence with the men to vote for Mr. Washburn for Congress at said election? — A. No, sir; I did not. I was on no- more intimate terms with Morton than I was with the other men. Q. Do you know of your own knowledge of any money paid or promised to be paid, reward offered or promised, or any valuable consideration whatever given or promised, by Wm. D. Washburn, or any person or persons acting for him with his knowledge, to any person or persons in order to influence such person or persons to vote for or use his or their influence to cause otber persons to vote forWm. D. AA''ashburn at the late election held November 5, 1878? — A. No, sir. Recross-examination : Q. Did yon say anything to Morton about this money transaction that has been talked about ?— A. Never, to the best of my memory. Redirect : Q. Did Webster tell Morton in your presence that Webster & White would mak& more money looking after the election than they would at cutting wood, or words to that effect? — A. I think not, sir; I don't know what he told Morton, but he did not say it in my presence. I never told Morton any such thing. The testimony does not show that Webster & White paid these wood-choppers for their time under any arrangement with Washburn or . any of his friends. The most that can be said is that one George B. Webster, a relative of the Webster of the firm of Webster & White (p. 296), consented after the election to reimburse Webster for the money he had paid these men for their time on election day while attending^ the polls and voting. He only adopted the act after the election by giving his individual check for the sum paid (page 307). If Mr. Washburn had himself .done this^ (which he did not), he would not, have been guilty of bribery, even though it could be said the men were bribed to vote for him. The testimony does not show, as has been claimed, that money wa& paid from the funds of the Minneapolis and Saint Louis Railroad Com- pany : nor does it show who, if any person, reimbursed George B. Web- ster. The most that can be said is that G. B. Webster may have paid this money from a campaign fund raised by the district committee. We are not called on to approve of the act of Webster & White in prom- 480 DIGEST OF ELKCTION CASES. ising and subsequently paying these wood-choppers for their time on election day while they were not at work. The policy of such an act is strongly condemned, although it is often adopted. As in this case, the voters who are laboring men often demand to be paid for their time regardless of their politics. Some significance is given to the fact that in Tamarack precinct Don- nelly only received one vote. It was not the only precinct where the voters about all voted one way. Mr. Donnelly claims to have received all the votes, 61, cast in Leaf Valley precinct, Douglas County, page -270, and a portion of the committee (although no return was made of these votes) has agreed to count them for him. For other precincts where the vote was almost unanimously for Donnelly, see pages 260 and 261 of record. Had the voters in Tamarack precinct been bribed to vote for Washburn that fact could certainly have been proved by competent testimony. As the rejection of the entire vote of this precinct cannot affect the result in this case, it is not thought necessary to do anything more than consider the testimony with reference to the contestee's complicity with any alleged bribery. It is not necessary to invoke the application of the rule that bribery must be proved, not presumed, to completely exoner - ate him from such a charge in this as well as all other alleged cases. The witness Bmil Shagren is relied upon very much to prove bribery in this case. It does appear from the testimony of Bmil Shagren that one Mr. Halcj a friend of Mr. Washburn, had one or two interviews with this witness, during which he tried to persuade him to support Mr. Washburn. But this wi'iness, when in need of money, received five dollars from Mr. Hale, according to his own confession, and afterwards supported Mr. Donnelly. This money, if paid to him at all, was on ac- count of expenses that Mr. Shagren would be required to incur while engaged in using his influence with his friends for the election of Mr. Washburn. In the course of the alleged conversation with Mr. Hale it is claimed that Hale proposed to bribe Mr. Shagren and induce him to turn from his support of Mr. Donnelly to the support of Mr. Washburn. But a careful reading of the testimony will show that this even is not true. Shagren says in his testimony (page 15) that Mr. Hale said to him, "Is it greenbacks you want'? I am told you are a delegate to the G-reenback convention, aiid that you are a Donnelly man." A further reading of the testimony will show that Mr. Hale could ha^'e referred, when he used this language, to nothing more than the politics of the witness. Mr. Donnelly was running as a Greenback candidate. Aside from the fact that Shagren confesses that he was willing to be bribed to support one man while he treacherously supported another, this wit- ness is showu to be entirely unworthy of credit. He is directly im- peached by at least three witnesses called by the contestant. He testi- fies (pages 16 and 17) positively that Ole Mahler told him at Harmonia Hall that he could get twenty-five dollars to vote for Washburn and to use his influence for him ; that Sevit Mahler told him he was paid to vote for Washburn ; that John Oleson told him he got two dollars to vote for Washburn and to use his influence for him ; and that Daniel Getchel had received money to vote for Washburn. Ole Mahler was called by contestant as a witness, and swears (pp. 116, 119) that he was a sup- porter of Donnelly, and also that he never stated to Emil Shagren that he had been paid money, or other valuable consideration, for his vote ; that he attended the polls to look after the interests of some of his friends, candidates for county ofiQces, and that he did not ask anybody DONNELLY VS. WASHBUEN. 481 at the polls to vote for Washburn, Ole Mahler says in his testimony j(page 119) : I hare read a piece in the Pioneer Press, giving the statement of Mr. Shagren of my meeting him at Harmonia Hall the eleventh day of November last, and that I told him that I had $a5 from Washburn. I deny every word of it. I was not at Har- monia Hall. John C. Oleson directly impeaches Shagren in the most positive terms. On this point his testimony is given in full (page 87) : Q. Do you know Emil Shagren ? — A. Yes, sir. Q. Please state if you had a conversation with Emil Shagren at Morrison Brothers' lumber-yard, or at any other place, on or about November 7 last, and stated to Sha- gren that you had received money to oast your vote for Mr. Washburn at the last Con- gressional election. (Objected to as irrelevant and immaterial, and as not addressed to any specific ■charge in the notice of contest. ) A. I never had anything to do with Mr. Shagren about election matters, and I had no such conversation with him. Q. Did you not state to Mr. Shagren that Chase paid you two dollars to vote for Washburn?— A. I did not. Q. Now, please state whether you were paid any money by any one in consideration that yon cast your vote for Mr. Washburn and use your influence in his behalf at the last election. — A. I was never promised any money from any party ; I was never paid any money by any one. Q. Did you not go to Mr. Chase after election and ask him for more money, stating that you had not received as much as the rest of the boys?— A. I did not. Q. Did you not state to Emil Shagren that you had demanded more money of Chase, and that Chase had answered that iiC he paid you any more that he would have to pay- it out of his own pocket ? — A. No, sir ; I never had any conversation with Mr. Shagren about it. Daniel Getchel also directly impeaches the witness Shagren (pages 86-87) : Q. How long have you belonged to that party (Democratic) ? — A. Since the election of Mr, Tilden. Q. Do you know Mr. Emil Shagren ? — A. Yes. Q. Please state whether at any time you stated to Emil Shagren that you had re- ceived money from any party or parties for your vote at this last Congressional elec- tion, or for your influence or services, from any party. — A. I did not make any such, statements to Mr. Shagren. Q. What did you state ? — A. I object, and decline to answer. Q. Please state whether you have received any money from any party at this last Congressional election — from any party for your vote, or services, or influence. — A. I decline to answer that question. Q. Will you state whether you have received any money from W. D. Washburn, or jErom any party acting in his behalf, with the understanding and agreement that you should cast your vote for W. D. Washburn for Congress? — A. I received no money from Mr. Washburn, nor from any of his friends, direct or indirectly. That Mr. Wash- i)iirn, nor any of his friends, never approached me nor came to me to ask me to vote for him or use my influence, and I would not have voted for him if ie had. I voted for Mr. Donnelly and used all my influence for him. Q. Please state whether or not you did say to Shagren that you was paid to vote for Washburn, and that you had voted for Washburn. — A. I did not state any such a thing. Q. Please state whether you know of any other parties who have received money to vote for Mr. Washburn. — A. I do not know. I have no knowledge whatever. Cross-examination : Q. Do you know of amy voters receiving any money, promise of office, or other reward for voting for Mr. Donnelly at the last election for member of Congress ? — A. I have no knowledge of anything of the kind, sir. It is thus made to appear by three witnesses that Shagren is a willful perjurer. It is proper to observe here that with the exception of the witnesses Mahler, Olesen, and Getchel, whose testimony is referred to above, the contestant has failed to call persons who would know the facts in relation to the alleged bribery, but he has generally relied upon. H. Mis. 58 31 482 DIGEST UF ELr.CTION CASES. getting persons who had their pretended information secord or third* hand, and in most instances were persons whose testimony was of a very doubtful character, and who had some grievance. The testimony of Bernard Cloutier (pages 211-213) is relied upon t» prove his bribery. It appears from this witness's testimony that he was in the market as a worker at the polls, and was somewhat disgusted because in the past he claimed to have been promised a good deal of money for his work, but had never got anything for it. He, however, states that he did receive from one Charles W. Johnson, who was in som e way connected with the Eepublican district committee, some money for his influence and work. He says he was to go out in the country and electioneer for Washburn and the rest of the Republican ticket. He also says he was induced to do some work for one John Baxter, who was a candidate for the legislature. He further says: "I wanted him to give me money enough to pay my expenses, to furnish a team, and pay for my team. He told me all right ; to go and hunt up a team, and start out the next morning." And he distinctly says that he told Baxter that Washburn was his candidate, and this before he was employed to do any work in the election for any candidate. The following is an extract from his testimony: Mr. Johnson, as I understood, was secretary of the Republican district committee. I tJiink I have given all of the conversation between Johnson and myself, or Washburni and myself, in reference to my services in that campaign. There was no money or other consideration offered to me or received by me for my vote for Mr. Washburn or anybody else. My choice as between Mr. Washburn and Mr. Donnelly prior to any negotiations for my services was for Mr. Washburn. I knew Mr. Washburn, and did not know Mr. Donnelly. I was not authorized or requested to use any part of this money to secure votes for Mr. Washburn in any way, except to pay my expenses and time. I do not know of any money or other valuable thing being paid, or any promises made by Mr. Washburn or any person in his behalf, to any voter to influence his vote in his favor at said election. The report of a jjortion of the committee in two places finds by the testimony of this witness alone that he was paid $20 by Charles W.. Johnson in Mr. Washburn's office, in Ms presence. We are content to say that there is not a syllable of evidence in the entire record which even tends to prove that this is true. On the contrary, the witness Cloutier, in express terms, states (p. 212) that it was paid to him by Johnson in the absence of Mr. Washburn. There is nothing in his- testimony which tends in any sense to show an attempt to bribe him, or to employ him to bribe others, to vote for Mr. Washburn. Members of the committee, having referred to the testimony of Charles Berens, George C. Morton, Emil Shagren, and Bernard Cloutier, then proceed to lay down the proposition that, as a matter of law, Mr.. Washburn must be held to have been guilty of bribery because he failed to rebut their testimony, regardless of the fact that when the testimony is examined it does not show Mr. Washburn to have himself, or through any authorized agent, paid or promised a single cent of money to any person. There is no rule of law which requires a party charged with an offense,, which is not proved, to Mmself enter upon a defense; nor is it true that, in the trial of a case where a crime is charged, any presumption arises against the party charged because he does not prove himself in- nocent, or merely because he is charged with the offense. The rule of law is universal, that a man must be proved to be guilty by competent fevidence upon the trial. There can be no presumptions against the party charged simply because he furnishes no evidence on the trial. The exigencies of the contestant's case may be the excuse for under- taking to enunciate any such anomalous and absurd proposition of DONNELLY VS. WASHBURN 483 law. The astonishment is that the proposition should find supporters in the committee. It is claimed that in Orookston precinct, in Polk County, there were a large number of illegal votes cast by parties that worked upon the con- struction of a railroad who were not inhabitants of that precinct arid had no right to vote there. This claim is chiefly based upon the alleged fact that the vote of this precinct was too large. The whole vote of the precinct was 258 as returned. The county of Polk lies on the Red River of the North, and extends along it for over sixty miles, and Bed Lake Eiver passes directly through it in an east and west direction. The Saint Paul, Minneapolis and Manitoba Eailroad passes through its entire length, north and south, over sixty miles. Orookston is its chief city, being at the crossing of the railroad with Eed Lake Eiver. Now, it must be borne in mind that a residence may be acquired in a county in ten days for the purpose of an election, provided the voter has resided in the State long enough to become a resident and naturalized citizen. That county, for a year or more previous to the fall election of 1878, swarmed with immigrants and land hunters. At the governor's election in 1877 there was polled in that county 257 votes, of which 238 were for Pillsbury, Republican, and 19 for Banning, Democrat. From 1877 to 1878 there was an increase of voters in that county much less than might have been anticipated. The contestant does not attack anj' precinct of Polk County except Orookston, and upon this point he swears four wit- nesses — Johnson (page 190), Sampson (page 232), Myer (page 238), and Church (page 223). It is impossible to give a detailed analysis of the testimony of these witnesses in a report. Johnson's testimony shows that every voter of whom he speaks had a clear right to vote. He speaks of a number of persons as " Thomp- son's crew," but he said that they had all been in the district two or three weeks or a month before the election. Some were old settlers and some had been there several years, others for only two or three mouths. On cross-examination this witness shows that he knows very little about the matter, except what he has been told by others, chiefly since the election. The witness Sampson undertakes to give a census of Orookston, but before he gets through it clearly appears that he knows little about the total number of voters in the precinct. After this witness has given a census, as far as he can, of the resident voters of Orookston, he says : There are two or three shanties in the village, but I do not know the people. I could not swear but there might be a few more ; could not be many, as I am well ac- quainted there. If there are more I have not seen them ; they may be out in one cor- ner, but I have not seen the houses. I forgot to state that Hitchcock & Brother runs some big farms on the northern part of the township. I could not state whether they were voters or not. He further says: I know the farmers, and I know the country. I do not Jiuow the steamboat men, the men who are coming and going. And on the question as to whether any illegal votes were polled, when asked the question, " Did you see any railroad workingmen vote at that poll at that time?" he says: "No; I was not up at the house." He does say that a minister of the gospel who preached in another town voted in Orookston. To show the utter unreliability of the witness Sampson, an extract from his testimony is here given. The only apology for giving this is found in the fact that some of the committee lay great stress upon this witness's knowledge of the voters of Orookston precinct, 484 DIGEST OF ELECTION CASES. and rely upon it to conclusively show that there was a large number of illegal votes cast at the election of 1878: Q. Who came into this county in the month of August last as settlers ? — A. I never stated that I knew all the farmers in tbe county ; I know the most of them. Q. Who came into the township of Fisher during the months of August, Septem- ber, and October 26, 1878 ? — A. That is one thing I have kept no record of. No, I^eep no record. Q. Who came into the village of Crookston during the months of August, Septem- ber, and up to October 26, 1878, to make this their home ? — A. I have kept no record; some of those I named came during that time. I know that a saloon-keejjer down at Box's place, he began last fall pretty late; Kistenmaoher and his partner started late last fall. I know Kretz&etmar started some time in August some time. That har- ness man, he put his shop up in the middle of the summer ; also Colter builded last summer. ' Q. Do you swear that you stated the names of all the male adult residents of the village of Crookston who resided there more than ten days before November 5, 1878? — A. No, I do not. I told you that there might be a few more. Q. How many boarders had Mr. Box of male persons over 21 years of age who had resided in the village of Crookston more than ten days prior to the election, whose names you have not stated ? — A. I could not say that. Q. May he not have had quite a number? — A. H'or all I know; I keep no record. Q. How many men over 21 years of age who had resided in the village of Crooks- ton more than ten days prior to the election held November 5, 1878, boarding at the Sherman House, whose names you have not stated? — A. That is one thing no man could state. There were people coming and going every day. Q. May there not have been quite a large number? — A. May have been a good many. Q. Were there not quite a number of private boarding-houses in the village of Crookston during the fall of 1878, and at and prior to the election held November 5, 1878 ? — A. There was some people stopping, coming and going. Some regular board- ers, I should think, at these private boarding-houses. Q. Were there not men of the age of 21 years who had resided in the village of Crookston more than ten days prior to the election held November 5, 1878, whose names you have not stated, who were boarding at those private boarding-houses at that time ? — A. I don't know if there were, and couldn't say if there was any people ooming and going. The boarding-houses were full sometimes. Q. May there not have been j3[uite a large number of such men, whose names you lave not given?— A. I can't state that. Q. Were there not quite a large number of single men in this locality of the age of 21 years who had resided in the village or township of Crookston more than ten days prior to the election held November 5, 1878 ? — A. I could not state that. There may -have been. Q. How many children are there in the public school in the village ,of Crookston ? — A. What I have learned from the Crookston paper and School Superintendent Steven- son, 120 scholars. The district includes four towns. I know there are children there -from other townships. Myer's testimony has reference only to a conversation with one W. B. Moore, whom he imagined was an illegal voter, and whom he stated told him he was not a naturalized citizen. On this he founded a theory in his own mind that fraud had been committed. This witness started on the mission of finding out whether Mr. Moore was a naturalized citi- zen or not, and succeeded in finding the record, which satisfied him that he was. This is an illustration of the unreliability of loose statements made by persons after an election. They are often made merely to badger and annoy and excite the curiosity of some over-oflcious man, such as doubtless Myers and other of the witnesses called in this cape were. The other witness. Church, recites some conversations, and un- dertakes to give some conclusions about the number of legal voters in Crookston precinct, but when he is fully examined he makes clear two things only : 1st. That he has no good data upon which to base any of his statements ; 2d. That he was a disappointed candidate for sheriff at that election, who tried very hard to induce all these voters, whom he aow claims were illegal voters, to vote for him, but failed. Members of the_ committee, however, hold that many persons who DONNELLY VS. WASHBURN. 485 voted in Polk County ought to be regarded as illegal voters because they worked on a railroad fourteen miles from the voting precinct, and not because they resided outside of it ; and for the further reason that the railroad company for whom they worked transported them to the polling place in a railroad car. It is proper to observe here, again, that during the short time a por- tion of these voters were going to and returning from their voting place their employers paid them for their time; and it may be observed, also, that in some of the newly constituted voting places, ballot-boxes, such as were required by the letter of the law, were not provided. An im- provised candle box was used at one place, and a cigar box at another. But there is no law which requires the rejection of the votes cast in such receptacles, in the absence of a whisper, or pretense of proof, that the contents of the boxes were tampered with. No such charge is made by the contestant, in his notice, with reference to any of the precincts in the Congressional district, and there is no proof to sustain any such claim. Experienced persons on the frontier know that people there have to put up with what they can get. But the contestant desiries to disfranchise a large niimber of these hardy pioneers because of their poverty and their iriabilitj' to provide themselves with the usual and ordinary facilities for exercising the elective franchise. ^ It is not proposed only in a few instances to review the cases where it is alleged that individuals were bribed by Mr. Washburn or his friends. We have sufiSciently shown that Mr. Washburn, personally, had noth- ing to do with bribing any voter, nor did he authorize any person to bribe voters for him. It may be admitted that some persons were em- ployed by members of the Eepublican party, and by friends of Mr. Wash- burn, to work at the polls and to induce the voters to turn out on elec- tion day. Certain members of the committee claim that about 22 per- sons were bribed to vote for Mr. Washburn. The testimony does not disclose in but few cases who these 22 persons voted for, or that they voted at all. Oluf Larson is the first one. He resided in the city of Saint Paul. He says in his own testimony, in express terms, that he did not receive any money or other valuable consideration for the purpose of securing his vote or his influence at the polls on behalf of Washburn at that election. He does say that he was paid ten dollars to peddle tickets for Mr. Wash- burn and for his time while doing so. He expressly states that he was not requested to use his influence for Mr. Washburn, and he also states that he used no part of this money to bribe any one to get votes for auy- body. He further says that he was a Eepublican, and voted for Wash- burn (page 28). Abraham Werrick, another one of the alleged bribed voters, makes clear by his testimony that he was a supporter of Washburn, and that he received no money to vote for him (page 29). William M. Leyde, another alleged bribed voter, says he took part in the general campaign in behalf of the Republican ticket; that he sup- ported Washburn; and that he received no money from Mr. Washburn for anything he did. It is true this witness says he received money to canvass a portion of his county. This witness was a Eepublican (page 489). C. Heyer, another alleged bribed voter for Washburn, did do some work in the general canvass, but he was not engaged to participate specially in the election until after he had declared, in most emphatic terms, when asked, whether he would vote for Donnelly, that he would not, and that he would not vote for a Greenback man; and, also, that 486 DIGEST OF ELECTION CASES. he would support Mr. Washburn against Mr. Donnelly. In the work that this man did he says he simply peddled tickets, and that he did not request or persuade any one to vote for Mr. Washburn (page 55). This person also received five dollars from a man by the name of Castle, a Democratic candidate for senator, for work on election day (pages 56, 57). It is charged that John C. Oleson was also bribed. This charge rests upon the testimony of Emil Shagren, already shown to be directly im- peached and to be unworthy of credit by at least three witnesses. Ole- son, himself, says in most emphatic terms that he was never promised any money from any party, a,nd was never paid any money by any one to take part in the election (pages 87-92). A man by the name of Shack is also alleged to have been bribed to vote for Washburn. This allegation rests upon the testimony of the witness Eogers, which is wholly and entirely hearsay. Shack was not called. Eogers does not undertake to give the language of Mr. Shack, but only arrives at a conclusion that Mr. Shack, an editor of a paper in Minneapolis, turned from the support of Mr. Donnelly to that of Mr. Washburn, because the Democrats had never helped him in his news- paper enterprise (page 89). Shack in the public prints denies the whole of Eogers's testimony. Karl Findler is claimed to have been bribed. An examination of the . testimony relating to his alleged bribery furnishes us a key to a vast amount of the absurd claims made in this case. A witness, Gruertin, undertakes to state that this man Findler sold his vote for a sack of flour. It turns out that Guertin was one of those unsophisticated but would-be knowing men who nosed about and was rewarded by being made a fool of by all sorts of people, who imposed on his credulity by telling stories which they thought were suitable to his fancy. Guertin does say (page 95) that Findler made a passive admission that he had obtained a sack of flour from Mr. Washburn's mill to vote for him. This witness says that he had a talk with Findler, who was a German and spoke the English language imperfectly, in the presence of a man by the name of Martin Graham. He says the conversation started between Findler and Graham, and in a joke ; that Mr. Findler's reply to a ques- tion of Graham's "was child-like and innocent, without evasion" (page 95). This man Graham also testifies in this case that Karl Findler said something to him about "a hundred of flour," and then he says that he knows himself that this conversation that Mr. Guertin heard was all a joke, and he further knows the fact that Findler made a statement about the flour just to aggravate Guertin and see him blow about it, and that in fact Mr. Findler got no flour. The following is a portion of Graham's testimony : Q. Will you state now whether, from the character of the conversation and the man's manners when he s.ai(l that he got the hundred of flour for voting, you thought he was in earnest? — A. I did not. Q. Was it in a joking conversation? — A. I believe it was. Q. Do you and that man worli together, and are you on friendly terms? — A. We have worked together for a month past, and we are friends. I have voted for Mr. Donnelly. Mr. Guertin was present and standing by at the time that Karl Findler made the statement about the flour. Q. Do you consider it a joking matter to have a man confess bribery? — A. He just said it to aggravate Guertin, because he knew that Guertin would blow about it, and I know that he never got a grain of flour. Q. How do you know that he never got any of that flour ? — A. I am certain of it. Q. How are you certain that he did not get it ? — A. Because I know that he did not get it. Sevit Mahla, of Minneapolis, is mentioaed as another of the bribed DONNELLY VS. WASHBURN. 487, voters. The only testimouy to support this mention is that of the wit- ness Emil Shagren, on the character of which we need make no fur- ther comment (page 16). Louis Kundsen is said to have been bribed, or to have received $5 to work all day at the polls, but this money was not received from Mr. Washburn, but from his employers, Bernard & Cope, who paid it to him as wages. He was not required to work specially at the polls for Mr. Washburn, but simply to peddle tickets (pages 162-3). Mr. Bernard, who paid Kundsen, said nothing to him about working for any particular man on the ticket (page 163-4). The witness said he did not try to influence any man's vote at that election (page 164). This man Kundsen in his testimony expressly says that he would have voted for Mr. Washburn if he had not been employed at the polls. His testi- mony also explodes much of the theory of contestant on the subject of Jbribed voters, notwithstanding the fact that several persons were em- ployed to work at the polls on election day. Here is an extract from iis testimony (page 163) : 0,1 Do you mean to say that you sold your vote at the election of November 5, 1878?— A. No. Q. Would you have voted just as you did without being paid for it ?— A. Yes, sir. Q. Do you know of any mouey having been paid for votes before or at the Novem- ber election, 1878, by Mr. Washburn or any person acting for him with his knowledge or consent? — A. No. Q. Do you know of any promise having been made or reward offered to any person ibr his vote by Mr. Washburn or any person authorized by him? — A. No. Q. Do you know of any vote having been cast for Mr. Washburn at the election No- vember 5, 1878, which was paid for by Mr. Washburn or any person authorized by him? — A. No. Louis Paulson is said to have been bribed to vote for Mr. Washburn. The testimony does not support this claim in any degree. There is some highly unsatisfactory testimony offered to show this man was paid $5 .(not by contestee or by his agent or special friends) to peddle tickets at thre polls (page 164). All that has been said in relation to Louis Kundsen will apply to Louis Paulson (pages 161-4). W. E. Metcalf, alleged to have been bribed to vote for the sitting member, makes very clear by his testimony that he was not engaged be- fore or on election day in the interest of either Washburn or Donnelly, and that he did not do any work in the interest of Mr. Washburn. He •did handle tickets, but for other candidates. He was not a partisan of either Washburn or Donnelly ; neither of them was his choice. He was a Eepublican and was employed by certain candidates who were run- ning for 8tate and county offices. He was employed to get out the vote in his precinct by providing means of transportation for voters who had no teams (pages 183-5). Peter Quady it is pretended was bribed in Washburn's interest. This the witness expressly denies, and saj-s that he did not " receive any money between Washburn and Donnelly" (page 201). He says he •did not urge any person to vote for Washburn for Congress. The wit- ness Quady declined to state who paid him money to work at the polls, but he repudiates the charge that he received any money, or promise of money, ''between Donnelly and Washburn," from anybody. Louis F. Gayner, said to have been bribed by Washburn, or his friends, also says that he received no money for his vote, influence, or jservlces, at or before the election, from Mr. Washburn, or any person .acting for him or in his behalf. He declines, when on the witness stand, to state for whom he voted. He does say on cross-examination that his 488 DIGEST OP ELECTION CASES. opinion was in favor of Washburn, but that the interest he took in the^ election was not on his account, but on account of some other person (pages 206-7). Peter Engberg, who was alleged to have been bribed, says, also, that he was employed for some of the local candidates, but that he took n& interest in the election of Washburn further than the majority of voters, in Minneapolis. He expressly says that he received no money from Mr. Washburn, Major Hale, or Charles W. Johnson. He also says that he- had no financial or private interest in the election of Washburn ; that he was promised nothing and offered nothing for his services, influence, or anything connected with Washburn's election ; and he further says that he knows of no vote, or services, or influence for Mr. Washburn that was secured by him, or any person for him, by the payment or promise of any money, or other valuable thing. He testifies that he was employed to do nothing in connection with the election, except to- get out a full vote in favor of the Republican ticket (pages 207-209). Bernard Cloutier (pages 211-213), who is one of the persons supposed to bave been bribed, says, in his testimony, he received some money from Charles W. Johnson for his influence and work at two different times,, and that he was to go out in the country and electioneer for V/ashburn and the rest of the Eepublican ticket. This service he performed. And then he says: There was no money or other consideration ofifered to me or received by me for my vote for Mr. Washburn or anybody else. My choice as between Mr. Donnelly and Mr. Washbnm prior to any negotiations for my services was for Mr. Waehburji. I knew Mr. Washburn, and did not know Mr. Donnelly. I was not authorized or re- quested to nse any part of this money to secure votes for Mr. Washburn in any way,, except to pay my expenses and time. I do not know of any money or valuable thing being paid, or any promises , made by Mr. Washburn, or any person in his behalf, to- any voter to influence his vote in his favor at said election (page 213). • Tollef G. Fladeland, said to have been bribed, admits in his testimony that he received money to go to North Fork and Crow Lake Townships, to see some parties who had not been seen, and leave some tickets. He says, using his own language: "I was a Washburn man in politics at the time Searle and Cooper called on me." He had formerly been a Democrat, he says, but not recently. The contestant here turned aside from his contest and desired this Scandinavian to settle the question which recently agitated the whole country, to wit : Who was elected President of the United States, Hayes or Tilden ? The witness was in doubt, and refused to swear that either Hayes or Tilden was elected, (pages 221-22.) The testimony of Cooper shows Mr. Fladeland received- money to pay his livery bill, &c., from Searle and Cooper, which was^ never repaid or expected to be repaid to them (pages 256-7). J. V. Brower, a lawyer residing at St. Cloud, Minnesota, and regis- trar of the United States land-office at that place, is claimed to have been bribed to vote for Washburn. He is one of the twenty-two whose- names are given in a list of bribed voters. His testimony discloses the fact that he was a Republican and a warm supporter of Mr. Washburn.. He paid for some cigars in his electioaeering for Washburn. It does not appear that this man Brower ever received any money, himself, for his services (pages 244, &c.). The claim that A. J. Clark was bribed needs little or no comment. He is claimed to have been bribed to vote for Washburn. It does- not appear for whom he voted, or even that he voted at all for Congress- man in 1878. The same may be said of others of the alleged bribed voters. DONNELLY VS. WASHBURN. 489» I The testimony^ of one Nathan Eichardson is relied on to prove Clark's bribery (pages i!85-9). No money is shown to have been paid him at all, and no agreement to pay him money is shown to have been made (page 286). Eichardson, on the contrary, says no money was paid any" person by Washburn or his agent to influence votes. Here is an abstract from his testimony : Question. Do you, of your own knowledge, know of any money paid or promised,, any reward offered or promised, or any -valuable consideration whatever given or promised by William D. Wasbburn, or his agents or any person or persons acting for him, with his consent or knowledge, to any person or persons in the third Congres- sional district of the State of Minnesota for his or their votes or influence for William D. Washburn for member of Congress at the last general election, held November 5, 1878? — Answer. No, sir; I have no knowledge of any money being paid or any reward offered or any valuable consideration given or promised to any person or persons for their vote or influence for W. D. Washburn. Q. Do yoii know of your own knowledge of any money being used at said election, by William D. Washburn or his agents, with his consent or under his direction, to in- duce voters to corruptly vote for William D. Wasbburn at said election held Novem- ber 5, 1878, who would otherwise have voted for Ignatius Donnelly 1 — A. Not that I know of. I do not know of anybody using money for any such purposes. The letter referred to in the testimony by Eichardson was never sent or intended to be sent by him to any person. He says of that letter (page 290) : Q. Did you send the letter offered in evidence .and marked Exhibit A., E. D. L. to- Mr. L. Fletcher, of Minneapolis ? — ^A. No; I did not send it to him or anybody else. Redirect examination : Q. Was that letter lost by you before it was mailed? — A. I think I never intended to mail it; it was not lost ijefore it was mailed; it was not mailed by me; I don'fc know that it was by anybody. The letter itself (page 285) does not refer to the matter of bribing voters or to bribery in any form ; it only speaks of money to be used in aiding Clark to publish his paper, in which he was already opposing Donnelly. Mr. Buss, of Long Prairie, is alleged to have been bribed to vote for- Washburn. In the light of the evidence this charge descends to the re- diculous. One Milo Porter testifies that Buss was a Eepublican, th&^ treasurer of Todd County, and an ardent supporter of Washburn, throughout (page 293). He also says Buss, in a public place and in the- presence of a number of persons, offered him $50 to support Washburn (page 293). The whole talk between Buss and Porterwas of such a char- acter as to make it clear that Buss was only joking with and badgering Porter for the purpose of hearing him talk while in a heated political' discussion, » Porter swears he put a card in a paper about the matter, which was false (page 295). He also admits that he had entered the list as the "cAam- jaion liar^ of his locality (page 295). He admits that he was a great joker himself (page 295), and he then answers the following question : Q. Do you know of your own knowledge of any money being paid or reward given by W. D. Washburn, or any person acting for him with his knowledge and consent, to- any person or persons for their vote or inflnence at the last election of November 5, 1878, or the campaign just preceding such election ?— A. I know of none. On such testimony as this of Porter's the committee is asked to find that men were bribed to vote for the contestee. A man by the name of Kitowski is said to have been bribed in Wash- burn's interest, and this is claimed on the testimony of the witness- Brower. It may be true that Kitowski received some money for cigars and other expenses incurred at his place in the interest of Washburn ;;. but there is nothing in the testimony that indicates that he was paid anything to support Mr. Washburn (pages 245, 6, 253). Kitowski is not 490 DIGEST OF ELECTION CASES. called as a witness, but the witness Armstrong, in his testimony, states that Kitowski denied ever having received a cent of money (page 304.) Henry Armstrong, the last of the list of alleged bribed voters, says in his testimony that he was not a su^jporter of Mr. Donnelly, and had made up his mind to vote for Mr. Washburn before any negotiations ■were entered into with him in relation to supporting Mr. Washburn. He does admit that he received money to see if certain men would go to the polls, and if necessary to go with his team and get them. He testifies that he used the money received by him to pay for his team and for his work. He did his work before election, and he was a mild kind of worker. When he went to a voter, he says he did not argue in favor of Mr. Washburn, but simply gave him a ticket and he could vote as he pleased (page 303). We think we have pursued this question of bribery of voters far enough. ^ EFFECT OF BRIBEEY WHEN PROVED. As it is not claimed even by the contestant that enough bribed votes were cast to change the result of the election in the district unless all numbered ballots (2,282) cast for contestee are rejected because they were numbered, and unless the entire vote (538) cast for him in Isanti County and the total vote (832) given for him in Polk and Kittson Counties are thrown out on account of alleged defective returns, it would Seem to be unnecessary to go into the question of bribery save for the purpose of vindicating the sitting member. As it is very clear, and it will be admitted that the polls can be purged of all the alleged bribed votes, or the entire vote of certain vot- ing precincts wherein the alleged bribery occurred can be thrown out without affecting Mr. Washburn's majority, the rule contented for and quoted by the author of the majority report of the committee (page 16), taken from the minority report in Piatt vs. Goode (Con. Elec. Cases, 1871-'76, p. 650) would still give Mr. Washburn his seat. The English cases cited from Cush. Par. Law (p. 70, sec. 189, and page 68, section 181.) do not go to the extent, as we apprehend, of holding that the whole election in a district where there are several voting places is void because of the bribery at one of those places of an insufficient number of votes to affect thfe result, but they do go to the extent of hold- ing that an election in a particular voting place may be declared void, The rule undoubtedly is in this country that where bribery, fraud, or intimidation is so interwoven with the vote of any voting precinct that it cannot be eliminated from the aggregate vote cast with certainty, the whole vote of the precinct may, and perhaps should, be rejected. The unassailed votes in other voting places would, however, still stand. Fraud or bribery does not vitiate what it does not impregnate. If bribery w.ere proved (as it is not) and brought home to the contestee, we should not draw any fine legal distinctions to save him his seat. The American cases cited in contestant's brief (Abbott vs. Frost, Con. Elec, 1871-'76, page 594, and Piatt vs. Goode, supra) are all to the effect that before a member can be unseated by reason of his own bribery of voters it must appear that his majority was obtained by such means. To find that a candidate received an untainted majority of the votes <3ast, and on that find that he was not elected for the reason that other votes were rejected on account of bribery or other cause, would be a bold absurdity. In a contested-election case in either branch of the Congress of the United States the sole question is one of fact in the light BONNELLY VS. WASHBURN. 491 of the law, viz : Who of the parties to the case was elected, if either? The questiou in no possible case can involve the fitness of the sitting member to hold his seat. In England, where there is no written con- stitution on the subject of expelling a member, it may be found that the practice has grown up of inquiring into the whole conduct of a member in the course of a contestation; and if he is found unworthy, or rather ineligible, to hold his seat from any good cause, he may be unsea^ted or kept out of a seat, notwithstanding he may have received a clear ma- jority of the honest votes cast in the election. This under some circum- stances would only be another mode of expulsion. Our Constitution provides the mode, and it is the only one pointed out, for purging the House of a member who, for c;'ime or other cause, is unlit or unworthy to hold his seat. The Constitution provides that the House may " iciih the concurrence of two-thirds expel a member.'" {Con., Art. I, sec. 5, i)ar. 3.) Bribery or other crime committed by a member, and which did not ■affect or influence the result of his election, could in no sense be con- strued to render his election void. Such has been the holding in several of the States. (3 Watts & Serg., 338 ; Brightley's Blec. Cases, 134 ; Mc- Crary on Elec, sec. 229.) Cushing, in his work on elections, questions the application of the English rule in this country in relation to the ■effect of bribery by the candidate or his agent in an election, on the right or power to declare an election void (sec. 190). An examination of the English rule as stated by Cushing in his work on elections will make it clear that the principle the parliament proceeds on in declaring an election void is not that the sitting member was not duly elected, but that by his evil conduct he has rendered himself unworthy of being elected and of holding a seat in the British Parliament. The election of a member under such circumstances is declared void as a puiiishment to the member and as a mode of condemning evil practices, and also to preserve the purity and freedom of elections in that country generally. allots were numbered. The majority of the Election Committee of this House in the Forty-fifth Congress decided to count ballots numbered in violation of law. (Finley vs. Bisbee, Report 95, page 28, by Mr. Cobb.) Many States in the Union require ballots to be numbered — some by •constitutional provision. Pennsylvania, Kentucky, and Georgia are examples where ballots are required to be numbered by the organic law of the State, and it seems to be for the purpose of enabling, in case •of a contest, the true result to be ascertained, and also for the purpose for preventing frauds aod ballot-box stuffing. Many persons believe that the greater the publicity of the vote the more clear and honest will be the expression of the will of the people. In some States voting -piva voce has been successfully tried. The people of Virginia, from before the time of the Declaration of Independence (June 29, 1776) and during -our constitutional government up to the rebellion, voted uniformly viva voce. George Washington, John Randolph of Roanoke, and all of the distinguished men of Virginia were ardent advocates of this mode of expressing the will of the people. The people of the State of Ken- tucky now vote at all elections mi'a tjoce, save for members of Congress, which is regulated by United States statutes, and it is understood to be universally approved by the people of that State, and this after it has been tried for many years. Ballots are required to be numbered in the State of Illinois. Members of the committee claim that the ballots were numbered in the precincts named as a mode of intimidating voters. This rises almost to the dignity of a slander on a large class of workingmen and others, who are usually the most independent of voters. It charges them with moral •cowardice. The men who desire to resort to treachery in pretending, for bribery or other cause, to support one candidate, and then vote for another may, under some circumstances be inconvenienced by the numbering of the ballots. How many men are there in any community who want to deny their own manhood by saying they do not wish any person to know for whom or for what principle they have voted? Such persons can have no moral or other real influence in society, and they cannot commmand their own or their neighbors' respect. The fact is, there is rarely to be found in any community a single man who has not for weeks or months openly avowed his purpose to support certain can- didates representing the leading issues of the campaign. We are not H. Mis. 58 32 498 DIGEST OF ELlSUTlOJN UABES. however, disposed to. condemn the secrecy of the ballot. It may be in- certain cases a protection to the electors. The facts in this case afford no pretense for rejecting fhe vote in the precincts where the ballots were numbered. • There is not an iota of testimony in the whole record which it can be pretended tends to show that one of the electors in such precincts was influenced by reason of the ballots being numbered. The industry of contestant would have discovered some such evidence if theiactexisted-. The testimony does show that one eccentric or cowardly man, a lawyer (Eobinson), refused at the polls to vote because the judges proposed to number the ballot (pages 135,137-138). This man disclosed the fact that he was a sort of Democrat, and that he did not want any person to know for whom he voted. The conclusion from bis testimony is irre- sistible that he wanted to maintain his standing as a Democrat and at the same time vote for Mr. Washburn, and that by this means Mr, Washburn lost the vote of one cowardly lawyer. Here are two excerpts from his testimony, and further comment is unnecessary: Q. Are you a Republican or Democrat? — A. I have alwaya acted ■with the Demo- crats, except that I do not vote early and often. I am always satisfied with one vote. Q. Were you a partisan of Mr. Ignatius Donnelly ? — A. I decline to answer, only to state that I am partisan to no one. I desire to vote independently, aud that was my objection to numbering my ballot. No other man save Mr. Eobinson even asked the judges of election to refrain from numbering his ballot. The testimony discloses that one man onlyremained from the polls for the alleged reason that ballots were being numbered, and it would seem that this man, desiring to give some reason why he did not vote, offered this by way of an excuse as an after-thought.^ It does not appear that he complained on the day of election of the num- bering of the ballots. Save these two persons there could not be found among the about twenty-eight hundred voters who voted in the seven precincts where ballots were numbered any person who would even pro- fess that numbering the ballots had influenced him not to vote or as to how he voted. This is as it would be expected, when we recollect the true and real character of an American citizen, especially such as resides in the progressive State of Minnesota and other States of the great West. It must be observed that the contestant does not ask to be cred- ited with votes not cast for him by reason of the ballots being numbered, but asks that all the votes cast in the seven precincts where ballots wer& numbered should be rejected, and the voters of these seven precincts to- tally disfranchised. In the effort of contestant to prove that person* had been influenced on account of the numbering of the ballots, he proved that most of the witnesses who voted did not know whether the ballots had or had not been numbered, and it is to be presumed that few, if any, of the voters, save the officers of election, in fact knew that their ballots were being numbered. Ballots were numbered in the first and second precincts of the second ward ; in the first, second, and third precincts of the fourth ward ; and in the first and third precincts of the sixth ward of Minneapolis, and in no others in the district. W. D. Hanagan (page 185), when asked, said he did not know whether the ballots in his precinct were numbered or not, although he was a swift witness for the contestant. He was at another precinct besides his own for several hours on the day of the election, during which time he did not find out whether the ballots there were being numbered or not. Here are a couple of questions put to this witness, and his answers : DONNELLY VS. WASHBURN. 4b 9 Q. Where were you during election day? — A. From nine o'clock to about two and a half or three o'clock in the afternoon I was at the first precinct of the fourth ward. Then I went up to the first precinct of the fifth ward and voted, and remained there until the close of the polls. Q. Were the ballots cast in the first precinct of the fourth ward numbered? — A. I do not know (page 187). This is the testimony of one of the contestant's witnesses. Williazn Grinishaw, who lived in the second precinct of the fourth ward, and who was active there on election day, says that he was not positive that the ballots were numbered by the judges (pages 155 and 181). The wit- ness swears that he is uncertain whether the ballots were numbered in the first precinct of the fourth ward. The witness Gonier, of the first precinct, sixth ward, who peddled tickets there for candidates, is asked, "Were the ballots numbered in your precinct?" and to this he answers, "I do not know" (page 206). There is other testimony of the contestant's witnesses of the same kind. Had there been complaint at all about the numbering of the ballots there would have been no person about the polls who was ignor- ant about it. But for the oflScers of the election the fact that ballots were numbered at these precincts could hardly have been proved. We note this to show that what was not at the time known could not now be held to have intimidated the voters. It is claimed that the ballots were numbered as a part of a scheme to intimidate voters. The fact appears to be that all the papers supporting Washburn published the statement that the ballots would not be numbered as the law requires, and it was at the instance, in some cases, of Democrats that they were numbered (pages 136, 176). The ballots were not, as appears by the tes- timony, numbered with any view of intimidating voters, nor were they numbered, as claimed, in violation of a professed agreement by the judges of election in Minneapolis. It is true there was a meeting to consult about the matter, at which the majority of the election judges present expressed the opinion that ballots should not or need not be numbered. The following is the testimony of B. P. Nelson as to this ' meeting (page 174) : Q. Did you attend the meeting of the judges of election of this city held shortly before said election to decide whether or not the ballots should be numbered at the election? If so, state when the meeting was held and what occurred. — A. I did attend the meeting ; it was held in the council room, in the city hall building. Opinions were given that it might be proper and lawful to number the ballots. These opinions were given by attorneys called in for that purpose ; by other judges, that it was necessary to number them. Some judges decided not to have them num- bered at their precincts. The city attorney, William Lochren, informed us one of our judges had decided that it was unconstitutional to number the ballots. We did not agree in that meeting whether to number the ballots or not. There was a motion or resolution oifered, but before the vote was taken it was understood that that mo- tion was not binding on the judges. It was simply taken to get the sense of the meet- ing. I don't remember how the vote stood. It is my impression that the vote stood in favor of numbering the ballots. Another one of the judges testifies as follows (page 143) : Q. Did you attend a meeting of the judges of election of this city held shortly be- fore said election to decide whether or not the ballots should be numbered at the election? If so, stale what occurred. — A. I was present at such a meeting at the council chamber in the city hall. There was a discussion, pro and con, as to whether the ballots should be numbered or not numbered. Some thought that the law in reference to numbering was unconstitutional, but that the supreme court of the State had not declared the law as such ; and other of the judges thought, as long as it was not declared unconstitutional by the supreme court of the State, that the law ought to be obeyed and followed; and after somewhat discussion of this kind there was an informal vote taken by the judges ; there were about thirteen or fifteen votes in the affirmative and eight or ten in the negative. I mean there was thirteen or fifteen in favor of not numbering the ballots and eight or ten in favor of numbering, 500 DIGEST OF ELiKUTION CASES. and I voted with those who were in favor of numberiDg ballots, because the law pre- scribed it. Q. Were the ballots deposited in the ballot-box in your precinct at said general election held November 5, 1878, identified by placing on the back of the same a num- lier corresponding with the number set opposite the name of the voter on the poll- lists? — A. Well, the judge of election received each ballot in presence of the other judges and the clerks, and called out the name of the voter, which was taken down by the clerk and numbered, and the same number was written on the back of the bal- lots ; that is the way it occurred ; and after it was numbered it was, in the presence of all the j udges and clerks, deposited in the ballot-box. There were no exceptions to this rule. John Hiutou, a judge of the election, testified on the same subject (page 177): Q. Did you attend a meeting of the judges of election of this city, held shortly before said election, to decide whether or not the ballots should be numbered at the election ? If so, state When the meeting was held and what occurred. — A. I attended the meetiug; the question was discussed. An opinion was given by Mr. Loohren, the city attorney ; his opinion was that it was unconstitutional to number the votes, and a vote was taken by the judges present; it resulted in a decision to discontinue the practice of numbering the votes. After that vote was taken there was a dissenting voice, Mr. Daniel Bassett ; and the general understanding was that the judges should use their own judgment as to numbering of the ballots in their several precincts or wards. The meeting was held in the council chamber ; it was in the afternoon before election, if my memory serves me right. J. H. Oonkey, also one of the judges, in speaking of the meeting of the election judges to consult on the subject of numbering the ballots, says (page 198) : Q. Did you attend a meeting of the judges of election of this city, held shortly before said election, to decide whether or not the ballots should be numbered ? If so, state where the meeting was held, and what occurred. — A. It was held at the council chamber in the city hall ; I attended this ineeting ; the matter was talked over there, and it was left to the option of the judges after counseling the city attorney. The city attorney gave tlie opinion that either way would not invalidate the election ; I think he said that there had been a decision rendered in Ramsey County that it was uncon- stitutional to number ballots. I don't remember whether a vote was taken or not. The last witness discloses the fact that legal counsel gave the opinion that to number the ballots would not invalidate them, and on this opin- ion some of the judges acted rather than perform their duty in express violation of the terms of the recent law of the State of Minnesota. The testimony of Daniel Bassett, a Democrat, and one of the judges, should also be read (page 134). But for the importance attached to the meeting of election judges by the contestant and certain members of the committee no attention would he given to it here. The meeting was an informal one and solely for the purpose of consultation, and was not intended and could not have been 'intended to bind any of the judges when ihey came to perform their ^official duties. The truth is that the judges of election had to decide be- tween following a plain requirement of the law or disregarding it. Some of them, under the advice they had, concluded to obey the law, notwith- standing the decision of the inferior court that it was unconstitutional. It is further claimed that the numbering of the ballots in seven pre- •cincts of the city of Minneapolis was done in pursuance of a purpose to intimidate the workingmen, who are said to have lived chiefly in these precincts. There is no truth in the statement that the workingmen re- sided in these precincts. The record furnishes no such evidence. It is hardly proper to refer to the fact that the contestant in his desperation does make such a statement in his brief. But in the argument before the sub-committee this was emphatically denied, and it is still denied •on the authority of persons residing in that city, including the mayor and others, who have forwarded affidavits to show that such unsupported DONNELLY V8. WASHBURN. 501 statements were wholly untrue. One witness (Grimshaw), referred to by members of the committee, does say that a large number of working- men resided in the second precinct of the fourth ward, a precinct in which the ballots were numbered; but this witness utterly disproves the charge that these workingmen were intimidated. On the contrary ,. he makes it quite certain that in this precinct and ward the working- men did not want to vote for Donnelly. The vote stood in that wardy according to his statement, 57 for Donnelly and 357 for Washburn. Here is a statement of this witness on this subject in full (page 181): A. I believe that I have before stated that I was not acquainted in my entire ward ; neither am 1 ; but will say that in the second precinct, fourth ward, the one in which I live, there was 414 votes polled at the last election, of -which Ignatius Donnelly re- ceived 57. I believe I am acquainted with all of these men — will not say all — and know of none that is not a workingman. I am rather well acquainted in the city, having li \eil here nineteen years, and believe that a large majority of workingmen voted for W. D. Washburn. It is true that there was great activity in the city of Minneapolis im- mediately prior to and on election day. There was undoubtedly a rivalry between the cities of Minneapolis and Saint Paiil which led to an increased vote doubtless for Donnelly in the city of Saint Paul and a largely increased vote in the city of Minneapolis for Mr. Washburn. Minneapolis was Mr. Washburn's home ; he had done much to build it up, to advance its interest, and to provide work for its inhabitants. He was a public-spirited man, and had«a just pride in his own city. Some of the contestant's witnesses declared that the election in the Congres- sional fight of 1878 practically resulted in one issue, and that a contest between the rival cities of Saint Paul and Minneapolis. The following is a question and answer which will throw light on this question (Ste- vens, page 108) : Q. Was not the Congressional question at the last election considered of greater, importance generally than any other office, and did it not cause more feeling among the voters? — A. Except upon a comparatively small number of friends of candidates for local officers, tlie Congressional fight, or so-called contest, for city supremacy, was practically the only issue ; political consideration apparently sank out of sight, the rallying cry being " Vote for Washburn and Minneapolis. Down tdth Saint Paul," The tattle soon became a rout, and ultimately a panic. The testimony of McCarthy is to the same effect (page 24). It is proper to observe that the nomination of Donnelly was distaste- ful to Democrats, especially in Minneapolis (page 110). The election in Minneapolis is clearly proved to have been an orderly one (page 109). Men were not discharged, as has been claimed, bj'^ their employers because they voted for Washburn (118). In the conduct of the election on election day Democrats were very lukewarm in Donnelly's interest (page 45). Some of the witnesses say that Donnelly's friends were afflicted with " apathy " (pages 140-41.) The only testimony which tends to prove that workingmen were afraid to vote for Mr. Donnelly on account of the fear that they would lose their jobs is purely hearsay, and entitled toiio consideration what- ever. Some of the witnesses testify that the workingmen did not vote for Mr. Washburn, but that his majority came from the citizens of the city of Minneapolis (page 113). Much has been said about Mr. Donnelly's last meeting in the city of Minneapolis. It is claimed that his meeting was interrupted, and in that way he was deprived of his proper influence upon the voters. It appears that in the meeting held by Donnelly in Minneapolis, on No- vember 2, 1878, he indulged in a personal tirade against Colonel King, 502 DIGEST OF ELECTION CASES. a former member of Congress, and attacked his character and reputa- tion. This Mr. King resented, and advised Mr. Donnelly that unless he desisted from such allusions to him he would expose him in a way that he (Donnelly) would not want. Donnelly held his meeting, and no further interruption took place (page 110). The witness McGurk says that in this meeting Donnelly succeeded in converting quite a number, and that the attempt to break up the meet- ing failed. He further testifies on this point (page 114) : Q. Do you not think that this attempt was an advantage to Mr. Donnelly instead of a detriment ? — A. I think it was, judging from the indignation expressed by the people at Mr. King and the party. Mr. King was supposed to be the representative of Washburn. ' Q, Then, in your opinion, the election, so far as it was affected at all, was so affected in favor of Mr. Donnelly by the scenes at this meeting ? — A. Yes. All of the alleged testimony in the record on the subject of intimida- tion, if, indeed, any of it could be called competent testimony, is so utterly shadowy that it does not deserve a critical review here. We should, in the consideration of the charge of intimidation, keep in mind the salutary rule of law, repeatedly affirmed by the House of Eepresentatives, that where it is alleged that a large number of persons have been deterred from voting by violence or intimidation the testi- mony of those persons should be produced, or at least some of them. The opinions and impressions of others are not sufftcient (MeOrary's Election Laws, 430-441 ; Norris vs. Handley, 42d Congress). The rule of law universally recognized where elections are held by the people is, that those who may have voted, and yet did not when they could have done so, are bound by thejesult (McCrary's Election Laws, sections 445-448 ; 10 Minn., 107). The attempt on the part of members of the committee to work out some sort of demonstration from a comparison of the votes cast on dif- ferent years in the citj' of Minneapolis is exceedingly far-fetched, and hardly deserves notice. To show the folly of attempting to demonstrate anything from a comparison of votes on different years in the city of Minneapolis we insert a statement showing the vote on different years for different candidates, Eepublican and Democratic, in both of the cities of Minneapolis and Saint Paul. It will be observed from this statement that with a very light vote in 1879 the Eepublican candidate for governor received almost as great a majority as Mr. Washburn in the city of Minneapolis, and the Democratic candidate for governor re- ceived only about one-third of Donnelly's vote in that city in 1878. It will also be observed that the vote in the city of Saint Paul fluctuated in the years mentioned in the statement quite as much as in the city of Minneapolis. The following is the statement: DONNELLY VS. WASHBURN. 503 • Statement of the vote cast iv the cities of Minneapolis and Saint Paul for certain can- didates, and in the years below specified. Pillsbury, governor, Kepubllcan . Buel, governor, Democrat . 1875. 1876. Hayes, President, Eepublican. Tilden, President, Democrat . . ■Stewart, Congress, Republican McNair, Congress, Democrat.-. (Stewart, a resident of Saint Paul, and MoNair, resident of Minneapolis.) Legislative vote in Minneapolis, same year, was Republican, 4,214 Democrat, 2,929; in Saint Paul, Republican, 2,113 ; Democrat, 2,979. 1877. Pillsbury, governor. Republican Banning, governor. Democrat Pillsbury was a resident of Minneapolis, and Banning of Saint Paul. A very light vote in botb cities. 1878. "Wasbburn, Congress, Eepublican Donnelly, Congress, Democrat Same year Democratic majority for supreme judge In Saint Paul was only ■ On State ticket (auditor) 'County ticket (sheriff) Same year Republican majority in Minneapolis on State ticket was Supreme judge ". ■County ticket. 1879. Pillsbiiry, governor. Republican Rice, governor, Democrat : Same year Democratic majority in Saint Paul on county ticket was Same year Republican majority in Minneapolis on county ticket was - . . Minneapolis. 3,652 1,041 4,149 3,229 3,412 3,862 3,245 1,569 5,033 1,565 2,161 2,722 2,341 2,814 504 1,187 Saint Panl. 2,459 3,116 2,566 3,593 2,698 3,101 2,867 3,078 1,378 3,770 897 931 268 1,007 2,922 553 The following statement shows the vote for governor in J.879 in the election in the counties composing the third Congressional district of Minnesota. It may be of value by way of comparison. Third Congressional district, vote of 1879 in said district. County. Rice. Pillsbury. County. Rice. Pillsbury. 1 266 133 279 41 64 203 85 196 133 44 998 45 22 96 17 11 363 56 14 371 653 191 128 51 636 340 295 643 389 3,744 327 79 138 591 4 870 106 Morrison County 492 653 105 338 56 3,318 177 166 2,270 403 350 5? 1,472 99 1,326 87 328 1,517 61 Polk County 730 Pope County 621 1,098 Saint Jjouis County 213 <;!lay County j 319 913 374 573 18 Isanti County 321 Washington County 1,183 Wilkin County 198 Lac-qui-parle County 1,347 Yellow Medicine County Total 722 .14, 425 20, 106 SUPPLEMENTAL RETURNS. Through an error of the secretary of the State of Minnesota, in not furnishing the proper blanks to the election ofiftcers, there were a num- "ber of instances where the votes polled for candidates for Congress were not returned and counted by the county canvassing boards (page 320). The omission to make full returns occurred in Minneapolis, and in 604 DIGEST OF ELECTION CASES. Stearns, Morrison, and Douglas Counties. The contestee does not dis- pute the right of the contestant to count the votes cast in the counties of Stearns and Morrison, in each of which counties the contestant re- ceiA'ed a majority. Nor do we understand that any serious objection- can be made to counting the vote in Leaf Valley precinct, in Douglas- County (page 270) where the contestant claims to have received all the votes. Supplemental returns were made on the 12th day of November, 1878,. by the election ofiScers of the precincts in the city of Minneapolis, where they had omitted to make the returns for member of Congress imme- diately after the election. These precincts were first precinct, first ward ; second precinct, second ward ; and third precinct, fourth ward. The majority for Washburn in these precincts was 714 (pages 348, 349.) We see no valid objection to these supplemental returns. They were made by the proper officers and within the time required by law to can- vass and make returns. The supplemental returns from the three pre- cincts of Minneapolis were duly canvassed by the county canvassing board (pages 348-351) ; but it is hardly necessary to waste time in con- sidering the validity of these supplemental returns. They were put in evidence by the contestant (pages 58-63). The testimony clearly and unmistakably, independent of the supplemental returns, shows the vote as cast for member of Congress in these precincts. It must be observed that all the witnesses who testified on the subject of the vote in these precincts agree that the vote for member of Congress was duly can- vassed, though not returned. Asa E. Camp, one of the judges of the election of the second precinct of the second ward in the city of Minneapolis, testifies to the vote cast for Congress in that ward (page 322). And he testifies also that the supplemental return, as made, is true in all respects (page 323). Isaac McNair, one of the judges of the election in the same precinct; and ward, testifies that the vote was canvassed by the judges of election for member of Congress ; and he also gives the vote from recollection and memorandum, as it appears by the supplemental return (pages- 323, 324). Thomas F. Andrews, another one of the judges in the same precinct^ swears to the same state of facts (pages 325, 326). John M. Williams, one of the clerks of election of the second precinct of the second ward, testifies to the same facts stated by the judges of election (pages 326, 327). Charles Thielen, a judge of the election of the first precinct of the first ward of the city of Minneapolis, testifies to the canvass of the votes in that precinct and to the correctness of the supplementalreturn (pages 327, 328). John Thielen, another one of the judges of election for the first pre- cinct of the first ward, establishes the same fact (pages 328, 329). Michael Lyons, the other judge of the election in the precinct and ward just named, is equally clear in establishing the fact that the sup- plemental return made for that precinct and ward was correct in giving- the vote for member of Congress (pages 329-332). Allen Hill, one of the judges of election in the third precinct of the fourth ward, testifies that the vote for member of Congress was can- vassed, and, by reason of a deficiency in the number of blanks furnished,,, was neglected to be returned. But he testifies to the vote of that precinct, and that it corresponds with the supplemental return (pages- 332-335). DONNELLY VS. WASHBURN. SO^- Frederick Paine, one of the clerks of the election in the third precicnt of the fourth ward, testified to the canvassing of the vote and the ascer- tainment of the result as to member of Congress. He gives 'the vote in/ this precinct for Washburn, 566; Donnelly, 83; Stewart, 1; and says- that 19 ballots contained no vote for member of Congress. He says^ also, that this vote was announced on the night of the election pub- licly, and that it corresponds with the supplemental return made by the officers of the election on the 12th day of November, 1878 (pages 335-339). The papers on the following morning after the election, to wit, November 6, 1878, offered in evidence in this case, give the vote of this precinct and ward, as well as of others, as appears by the sup- plemental return (page 352). One at least of these papers, the Saint Paul Globe, was published in the interest of Mr. Donnelly (page 338). The witness Paine makes it certain that the vote was announced as soon as canvassed by the judges of election, and was taken by the reporters from the figures given as the result of the election in this precinct. William Cheney, another judge of the election in the third precinct of the fourth ward, also gives the result of the canvass and the election- in his precinct ; and he establishes the fact that the supplemental re- turns for his precinct were correct (pages 338-342). Daniel Bassett, a Democrat, and one of the judges of election in the- third precinct of the fourth ward, also testifies to the correctness of the vote returned for members of Congress in his precinct, though his memory has to be refreshed by exhibiting to him an original paper con- taining a memorandum of votes, kept at the time the canvass was made in his precinct. The supplemental returnsmade by the judges of election will also be found in the record as offered by contestee (pages 348-350). The only person who makes any question about the correctness of the vote in these three precincts is John B. Bottineau, who was a clerk of the election in the third precinct of the fourth ward. He made a pro- test as to hi^ precinct against the supplemental return made by th& judges of the election and the other clerk, on the ground, as it appears by his protest, that he himself kept a memorandum (not a tally-sheet),, which he is not willing to say was honestly kept, but which he says showed the vote in this precinct to have been, for Washburn 336, and for Donnelly 313 (page 350). Some respect might be shown to this protest (although there was no authority of law for making it) if the man who signed it was himself willing to say that his own memorandum was true. Even in his protest he is careful not to say that the vote for Donnelly and Washburn stated on his memarandum was the correct vote received by them at the elec- tion, but when he is put to the test of swearing to it he utterly fails to- say that it d6es give the correct vote. It must be noted that the sup- plemental return in this case was signed by Daniel Bassett, the Demo- cratic judge of the precinct and a partisan of Mr. Donnelly. When Mr. Bottineau was asked, in his examination by the contestant, to give the manner in which the count and canvass of the ballots were made, and state any discrepancies in the different tallies made by the judges- and clerks during the count and canvass, he had recourse to his own memorandum kept at the time. The memorandum this witness refers to was not the tally-sheet, but a mere memorandum kept by him, on which he put down or pretended to put down figures, at different times as the canvass proceeded, indicating the vote as cast for members of Congress. An inspection of a printed copy of this memorandum (page 506 DIGEST OF ELECTION CASES. 281) and of the original in evidence will enable any person to see that this witness, either corruptly or honestly, put down the figures in such way as to show that Donnelly received 230 votes more than the tally-sheet shows he received, and which the judges and the other clerk of the elec- tion make clear was the true vote. When put to the test this witness confesses that he made an error in keeping his memorandum (page 277). •On the night of the day of election, when the canvass was made, he did not even pretend to claim thatthere was any discrepancy between the vote as kept by the other officers of election and himself (page 277). He was asked how it was possible for a difference of two hundred in the vote for Donnelly to exist and he not know it at that time, to which he answers: It is either a mistake of one of us, and perhaps a mistake of both of us. I am con- fident we were both mistaken (page 277). We give in full the closing part of this witness's testimony, in order to make it appear that no reliance is to be placed upon his pretended protest. It will be observed that he says, "I cannot say that I believe it (referring to Exhibit C, containinga true showing of Donnelly's vote), nor can I say that I disbelieve it" (page 278). Q. From your intimate knowledge of the politics of this county, as before stated, do you believe Exhibit C contains a true showing of Donnelly's vote? — A. I cannot answer it. At the time I sat it down I believed it to be the actual vote of Donnelly. I cannot say that I believe it now, nor can I say that I disbelieve it. Q. When you swore to Exhibit D did you believe that Donnelly had received the number of votes set oppositehis name in Exhibit C? — A.Idou'tknow whetherl did or not; I expected the two tally-sheets would correspond as they did in relation to other candidates, which they did not. Q. Were you not surprised at Donnelly's vote on the night of the election when you made this Exhibit C, showing that he received 313 votes? — A. I was surprised that he had received so small a vote, according to the enthusiasm in his favor that I hald seen. Q. Did you make the figures '"200" and "30" set opposite Donelly's name, in Ex- hibit C, as the votes were read out on election night ? — A. The votes were not read out on election night by either of the judges or clerks in making the canvass ; I placed those figures at the same time as the other tally-sheets, as they were announced as foimd by each, judges and clerks. Note. — This being the last witness examined on the direct, in Minneapolis, con- testant's counsel desires to say, may the Lord have mercy on the hindermost in the final outcome. Amen. The objection to these supplemental returns is so purely technical that we hardly think it important to give the matter the consideration Already given to it in this report. Some complaint is made that the contestee did not have the ballots counted in the ballot-boxes and offer proof of the result of such count in this contest ; and certain members of the committee think this would have been the best and highest evidence of how the vote stood. The contestee has given the vote as cast in these three i^recincts, as found by the officers who held the election, on an actual count of the ballots made by them as soon as the polls closed. It is hard to conceive how it is possible for a new count of the ballots by unauthorized persons long after the election would constitute higher evidence of the true state of the vote in these precincts than we have already given. It would be exactly the same character of evidence, but given by persons not a*i- thorized under the law to make the count. UNORGANIZED COUNTIES. It was stoutly claimed by the contestant that the votes cast in the several counties of the district should be excluded wholly, on the ground that they were in unorganized counties. Some dispute arose between DONNELLY VS. WASHBURN. 507 counsel as to what constituted au unorganized county ; and there was some difference between counsel as to what particular counties were organized by express provision of the statutes of the State of Minnesota and what counties weye not organized. It is not at all important, in the view we take, whether these counties were organized or not, because it is perfectly clear, under the statutes of Minnesota, that for the pur- pose of voting for State officers, for members of the legislature, and for members of Congress, voters living in unorganized counties are as much entitled to vote as those who live in organized counties. It is understood that the committee is unanimous in holding that the vote of no county in the district should be rejected on the ground that it was an unorganized county, and we shall give this subject no further con- sideration. ISANTI COUNTY. The contestant attacks the entire vote of Isanti County. The re- turned vote from that county was 538 for Washburn, 137 for Donnelly, scattering 2. The contestant's objection to counting the vote returned in the county of Isanti is set forth in paragraph 8 of his notice of con- test. It is as follows : The votes alleged to have beeu cast for you at said election in the county of Isanti, in said district, were not cast, or counted for you, or returned, or canvassed, as pro- vided by law. The true construction of this part of the notice of the contestant is that he objects, not to the vote because it was not cast, nor because it was not counted, nor because it was not returned, nor because it was not canvassed, but because it was not cast, counted, returned, or can- vassed as provided by law. There is nothing in theevidence offered by the contestant tending to show that the vote of this county was not cast as returned, was not counted as returned, or was not canvassed as returned, except what appears on pages 68 and 69 of the record. There it is made to appear that there was a complete abstract of the vote made as cast in the several election districts of the county, and duly certified to by the auditor of the county and district, whose certificate is attested by one A. B. O'Dell, who designates himself judge of probate, and Jonas Burch, who signs himself as justice of the peace. Had O'Dell signed and attested the auditor's certificate as justice of the peace there would have beeu no objection to counting this vote. This is a mere irregularity, which does not vitiate the returns ; and if it did, the vote is not to be rejected unless the contestant shows it to be illegal. (McCrary's Elec- tion Laws, section 302, and cases there cited). The statute of Minnesota (Bissel's Eevision, vol. 1, p. 172, sec. 28) provides : The county auditor and two justices of the peace of his county, by him selected, •constitute the county canvassing board, and on or before the tenth day after the elec- tion said board shall proceed to open and publicly canvass the several returns made to the auditor's office. Section 40 of the same Eevision of the Statutes (page 176) is as fol- lows : The abstracts of the votes for members of Congress and electors of President and Vice-President shall be made on one sheet, and, being certified and signed in the same manner as in case of abstracts of votes for county officers, shall be deposited in the said county auditor's office, and a copy thereof, certified as aforesaid, shall be inclosed, «. Metcalfe, third district, contested election. Forty-fifth Con- gress 289 N. New York — Duflfy vs. Mason, twenty-fourth district, contested election, Forty- sixth Congress .' 361 North Carolina — O'Hara vs. Kitchin, second district, contested election. Forty- sixth Congress 378 North Carolina — Yeates vs. Martin, first district, contested election. Forty-sixth Congress 384 O. O'Hara, James E., vs. W. H. Kitchin, contested election, Forty-sixth Congress. 378 O'Hara »g. Kitchin, report of committee 378 resolutions adopted 383 Orth, Godlove S., contestee, ninth district of Indiana, Forty-sixth Congress 320 Overton, Hon. E., jr., Pennsylvania, member Committee on Elections, Forty - sixth Congress 295 P. Pacheco, Eomualdo, contestee, fourth district of California, Forty-fifth Con- gress 5 Patterson, Thomas M., vs. James B. Belford, contested election, Forty-fifth Con- gress 52 Patterson vs. Belford, majority report 52 minority report 60 resolution adopted 59 Pennsylvania — Curtin vs. Yooum, twentieth district, contested election. Forty- sixth Congress 416 Phister Hon. Elijah C, Kentucky, member Committee on Elections, Forty-sixth Congress 295 Price, Hon. Hiram, Iowa, member Committee on Elections, Forty-fifth Congress- 3 H. Mis 58 34 522 INDEX. R. Page. Sainey, Joseph H., oontesteej first district of South Carolina, Forty-fifth Con- gress .1 ;..j 224 Richardson, John S., vs. Joseph H. Rainey, contested election, Forty-flfth Con- gress ;^;^ ; 224 iiichardson vs. Rainey, majority report 273 minority report, i 224 note 224 S. Sawyer, Hon. S. L., Missouri, member Committee on Elections, Forty-sixth Congress 295 Siemens, William F., contestee, second district of Arkansas, Forty-sixth Con- gress 296 Smith, J. M., clerk Committee on Elections, Forty-fifth Congress 3 South Carolina — Richardson vs. Rainey, first district, Forty-fifth Congress 224 "Speer, Hon. Emory, Georgia, member Committee on Elections, Forty-sixth Congress 295 Springer, Hon. W. M., Illinois, member Committee on Elections, Forty-fifth Congress 3 -Springer, Hon. W. M., Illinois, member Committee on Elections (chairman), Forty-sixth Congress .^.. 295 T. Thornburgh, Hon. J. N., Tennessee, member Committee on Elections, Forty- fifth Congress 3 Turney, Hon. Jacob, Pennsylvania, member Committee on lElections, Forty- fifth Congress 3 W. "Wait, Hon. J. T., Connecticut, member Committee on Elections, Forty-fifth Con- gress 3 Washburn, William D., contestee, third district of Minnesota, Forty-sixth Con- gress 439 Weaver, Hon. J. B., Iowa, member Committee on Elections, Forty-sixth Con- gress 295 Wiggiuton, Peter J),, vs. Romualdo Pacheco, contested election, Forty-fifth Con- gress 5 Wigginton vs. Pacheco, majority report 5 minority report . ,..' , 24 views of Mr. Springer 19 resolutions adopted 18 Williams, Hon. J. N., Alabama, member Committee on Elections, Forty-fifth Congress 3 Wilson, John J. , claimant, ninth -district of' Iowa, Forty-sixth Congress 322 majority report '. 322 minority report 341 views of Mr. Beltzhoover 340 resolutions adopted 339 Y. Teates, Jesse J. , vs. Joseph J. Martin, contested election, Forty-sixth Congress . . ' 384 Yeates vs Martin, majority report .1 384 minority report ,, ...- 391 resolutions adapted-. 390 Yocnm, Seth H., contestee, twentieth district of Pennsylvania, Forty-sixth Con- gress 416 c KF 4977 A2 1883 Aeihor U.S. Congress. House. Vol. Title Ca|>7 ...Digest of election cases. Date Bonowct'i Nunc