length, and then withdrawn, so that it was not formally decided. If, however, it had been decided in his favor, it could only have been upon the ground that it did not come within, or that it constituted an exception to, the rule we have stated. It was contended that the State of Ohio, in the person of her two Senators, had a right to be heard in the decision of the great case of impeachment then pending, notwithstanding the contingent interest which one of the Senators had in the result. and that the importance of giving to each State an equal voice in that decision, was sufficient to justify what was at least an apparent departure from, or an exception to, that rule. Whatever may be thought of the soundness of this argument, it is sufficient for our present purpose to say that it does not involve any question as to the soundness of the general rule, that no man shall be a judge in a matter in the decision of which he is directly and personally interested.

§ 269. In ex parte Murphy (7 Cowen, 153,) it was held that the mere circumstance that improper votes were received at an election will not vitiate it. In that case, one candidate had received a majority of two votes, and it was charged that two illegal votes were cast, but there was no allegation that they were cast for the candidate having the majority. The motion for quo warranto was denied, the Court saying, "For all that appears the spurious ballots were for the ticket which was in the minority." This ruling, however, should be explained and probably qualified. If it goes no further than to hold that the information in that particular case was insufficient to

warrant the allowance of a quo warranto, it may be accepted as correct, but, if it is construed as asserting the doctrine, that in all cases it is necessary to show that the person declared elected was, in fact, defeated, before the election can be set aside, then it goes too far. An election may be set aside, declared void, and a new election be ordered, upon the introduction of such proof as renders it impossible to determine who has been chosen by a fair majority, but the contestant can, in no case, be declared entitled to the office until he shows, affirmatively, that he has received a majority of the legal votes cast.

§ 270. It often appears in the course of the trial of a case of contested election that votes have been cast by persons not qualified to vote, and in such cases it becomes very important to ascertain for whom such votes were cast. A question of much importance has arisen as to whether the declarations of illegal voters made not under oath, should be received to show the fact that they voted, or that they were not legally qualified to vote. The English authorities, though not entirely uniform, are generally in favor of admitting such declarations, and perhaps the weight of authority in this country is the same way, though it cannot be denied that the tendency in the more recent, and we think also the better considered cases, is to exclude this evidence as hearsay. (State vs. Ohio, 23 Wis., 319. The New Jersey Case, 1 Bartlett, 19. Vallandigham, vs. Campbell, do 230, and cases there cited.)

§ 271. The soundness of the rule which admits this species of evidence, is seriously questioned in the late case of Cessna vs. Myers, 42d Congress. The

report in that case presents the following objections to the rule 6.

"The general doctrine is usually put upon the ground that the voter is a party to the proceeding, and his declarations against the validity of his vote are to be admitted against him as such. If this were true, it would be quite clear that his declarations ought not to be received until he is first shown, aliunde, not only to have voted, but to have voted for the party against whom he is called. Otherwise it would be in the power of an illegal voter to neutralize wrongfully two of the votes cast for a political opponent: 1st, by voting for his own candidate; 2d, by asserting to some witness afterward that he voted the other way, and so having his vote deducted from the party against whom it was cast.

But it is not true that a voter is a party in any such sense as that his declarations are admissible on that ground. He is not a party to the record. His interest is not legal or personal. It is frequently of the slightest possible nature. If he were a

party, then his admissions should be competent as to the whole case-as to the votes of others, the conduct of the election officers, &c., which it is well settled they are not. Another reason given is, that the inquiry is of a public nature, and that it should not be limited to the technical rules of evidence established for private causes. This is doubtless true. It is an inquiry of a public nature, and an inquiry of the highest interest and consequence to the public. Some rules of evidence applicable to such an inquiry must be established. It is nowhere, so far as we know, claimed that in any other particular the

ordinary rules of evidence should be relaxed in the determination of election cases. The sitting member is a party deeply interested in the establishment of his right to an honorable office. The people of the district especially, and the people of the whole country, are interested in the question, who shall have a voice in framing the laws? The votes are received by election officers, who see the voter in person, who act publicly in the presence of the people, who may administer an oath to the person offering to vote, and who are themselves sworn to the performance of their duties. The judgment of these officers ought not to be reversed, and the grave interests of the people imperiled by the admissions of persons not under oath, and admitting their own misconduct.

The practice of admitting this kind of evidence originated in England. So far as it has been adopted in this country, it has been without much discussion of the reasons on which it was founded. In England, as has been said, the vote was viva voce. The fact that the party voted, and for whom, was susceptible of easy and indisputable proof by the record. The privilege of voting for members of Parliament was a franchise of considerable dignity, enjoyed by few. It commonly depended on the ownership of a freehold, the title to which did not, as with us, appear on public registries, but would be seriously endangered by admissions of the freeholder which disparaged it. An admission by the voter of his own want of qualification was, therefore, ordinarily an admission against his right to a special and rare franchise, and an admission which seriously imperiled his title to his

real estate. An admission so strongly against the interest of the party making it would seldom be made unless it were true. It furnishes no analogy for a people who regard voting, not as a privilege of a few, but as the right of all, where the vote, instead of being viva voce, is studiously protected from publicity, and where such admissions, instead of having every probability in favor of their truth, may so easily be made the means of accomplishing great injustice and fraud, without fear either of detection or punishment.

It may be said that the principle of the secret ballot protects the voter from disclosing how he voted, and in the absence of power to compel him to testify and furnish the best evidence, renders the resort to other evidence necessary.

"The committee are not prepared to admit, that the policy which shields the vote of the citizen from being made known without his consent, is of more importance than an inquiry into the purity and result of the election itself. If it is, it cannot protect the illegal voter from disclosing how he voted. If it is, it would be quite doubtful whether the same policy should not prevent the use of the machinery of the law to discover and make public the fact, in whatever way it may be proved. It is the publicity of the vote, not the interrogation of the voter in regard to it, that the secret ballot is designed to prevent. There would seem to be no need to resort to hearsay evidence on this ground, unless the voter has first been called, and, being interrogated, asserts his privilege and refuses to answer. Even in that case, a still more conclusive objection to hearsay testimo