ber upon a proper defense and prevent any surprise being practiced upon him, is good, but one which fails to do this is bad. (Wright vs. Fuller, 1 Bart

lett, 152.)

§ 344. It seems to be settled by the decisions of the House of Representatives, that a notice is good under the law, if it specify the number of illegal votes polled, for whom polled, when and where polled, without specifying the names of the illegal voters. Wright vs. Fuller, supra. Vallandigham vs. Campbell, 1 Bartlett, 223. Ottero vs. Gallegos, 1 Bartlett, 177.

§ 345. On the trial of a contested election case, in the lower House of Congress, if the final return is informal or insufficient, it is proper that the committee or the House, should send for and examine the county or primary returns, and from them make an estimate of the votes, as the judges themselves might have done. [Case of David Bard of Pennsylvania, Cl. & H., p, 116.] It is equally true that the House in such a case may go behind all returns whether primary or final, and resort to any competent evidence, in order to ascertain the true state of the vote. The same point was decided in the same way in Chapman vs. Ferguson, 1 Bartlett, 267.

§ 346. In the case of Joseph B. Varnum of Massachusetts [C. & H., 112,] it was held by the House of Representatives of the 4th Congress as follows:

1. That an allegation that fifty votes were given by proxy, is sufficiently certain without naming the persons in whose behalf they were cast.

2. That an allegation that "five votes were received and certified by the presiding officers, which

were given by persons not qualified by law to vote,' is not sufficiently certain, because it does not give the names of such persons. But as already shown, it has been held repeatedly under the act of 1851, regulating the mode of obtaining evidence in cases of contested election, that it is not necessary to give the names of the persons by whom illegal votes are alleged to have been cast.

§ 347. In Vallandigham vs. Campbell, [1 Bartlett, 223,] the rule that a sitting member must use diligence in the preparation of his defense to a contest brought against him, was adhered to by the committee and the House. It was there held that the fact that the sitting member was a member of a previous Congress, and attended to his duties as such, during a part of the time, when by law the testimony should have been taken, furnished no ground for an extension of time in his behalf. Also, that the fact that the contestant occupied or proposed to occupy the entire sixty days after service of the answer of the sitting member, to the notice of contest, does not entitle the sitting member to an extension of time. Both parties were allowed to take testimony under the law as it then stood during the same time. substantially the same ruling was made in the case of Boles vs. Edwards, [42d Congress.] The statute upon this subject was, however, by an act approved January 10th, 1873, amended so as to extend the whole time for taking evidence to ninety days, and so as to divide the time as follows; the first forty days to the contestant, the succeeding forty days to the sitting member, and the closing ten days, to the contestant, to be occupied in taking testimony in rebuttal only.

And

§348. Although the act of Congress of 1851, in relation to taking evidence in contested election cases, is not absolutely binding upon the House of Representatives, yet it is to be followed as a rule and not disregarded or departed from, except in extraordinary cases. A contestant must take his testimony under it, and in accordance with its provisions, unless he can show that it was impracticable to do so, and that injustice may be done, unless the House will order a special investigation. [Brooks vs. Davis, 1 Bartlett, 244.] The statute as it now stands after the recent amendments, affords an apportunity for investigation, so ample and complete that it is believed that it will seldom happen that the House will find it necessary to depart from its provisions in order to do the most complete and perfect justice, and it will no doubt therefore be adhered to as furnishing the best possible guide, for instituting and carrying forward inquiries of this character.

§ 349. The Houses of Congress when exercising their authority and jurisdiction to decide upon "the election returns and qualifications" of members, are not bound by the technical rules, which govern proceedings in courts of justice. Indeed the statutes to be found among the acts of Congress regulating the mode of conducting an election contest, 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 practice, and of course will be adhered to, unless the House in its discretion shall in a given case determine that the

ends of justice require a different course of action. They constitute wholesome rules not to be departed from without cause. (Williamson vs. Sickles, 1 Bartlett, 288.) It is not within the constitutional power of Congress by a legislative enactment or otherwise, to control either House in the exercise of its exclusive right to "be the judge of the elections returns and qualifications of its own members." (Constitution, Art. 1, Sec. 5.) The laws that have been enacted on this subject, being therefore only directory and not absolutely binding, would have been more appropriately passed as mere rules of the House of

Representatives, since by their passage it may be

claimed that the House conceded the right of the Senate to share with it in this duty and power conferred by the constitution. It is presumed however, that the provisions in question, were enacted in the form of a statute, rather than as a mere rule of the House in order to give them more general publicity and place such directions, as were thought proper, within the reach of whomsoever they might concern. And the constant practice on the part of the House of varying these regulations has been regarded, no doubt, as a sufficient protest against the power or right of the Senate in the premises.

§ 350. The House of Representatives of the United States, may in its discretion proceed to inquire into the validity of the election of one of its members, without any formal contest having been instituted. A contestant is not absolutely necessary. (Reeder vs. Whitfield, 1 Bart., 189.] If circumstances arise which, in the opinion of the House, make it their duty to investigate the right of a member to a seat,

It

the House may proceed upon its own motion. follows of course that the death of the contestant or his withdrawal from the contest, or an attempt to compromise between the contestant and incumbent, will not make it obligatory on the House to discontinue the investigation.

§ 351. A census of population so classified as to show the number of persons in each county, possessing the qualications of voters and taken by sworn officers, under the authority of the United States, is admissible in evidence as tending to show, approximately at least, the number of voters in any given county at the time such census was taken, and of course also as showing approximately the number of voters in such county, at the time of an election, held shortly before or after the taking of such census. (Norris vs. Handley, 42d Congress. Niblack vs. Walls, 42d Congress.) But of course this is not the most reliable sort of evidence, as there is always great room for mistakes and inaccuracies, in the taking of the census. The census returns are by no means conclusive, and will be resorted to only in the absence of other satisfactory evidence, as when there is some proof of intimidation and violence, but great doubt and uncertainty as to how many legal voters were by this means deprived of the right to vote. In such a case, if it appear from the returns of a census taken about the time of the election, that the vote was an ordinarily full one, it may be fairly inferred in the absence of other evidence, that there were not a large number of persons deterred from voting at such election.

§ 352. A similiar rule to the one here stated was