at said election. Three soldiers stood at the door of the court house, and refused to admit a voter because he declared he would vote for contestant. There were altercations between the soldiers and the people, which terminated after the poll was closed in a violent affray. Upon these facts the committee found and reported that the conduct of the soldiers as well as that of their commander, “was inconsistent with that freedom and fairness which ought to prevail at elections; and that, although it does not appear, from any other than hearsay testimony, that any voter was actually prevented from voting, yet there is every reasonable ground to believe that some were, and that the election was unduly and unfairly biassed by the turbulent and menacing conduct of the military." (Cl. & H., 78.) The report of the committee was lost in the House. It may be conceded that the facts in that particular case did not constitute such violence and intimidation as should have vitiated the poll, and still the rule we have stated remains well settled. If this case did not fall within the rule it was because it did not appear that the presence and conduct of the soldiery actually deterred from voting, a number of legal voters, sufficiently numerous to change or render uncertain the result.

§ 422. We conclude

1. That an armed force should never be stationed immediately at the polls.

2. That in cases where riot and bloodshed are apprehended troops may be stationed in the neighborhood, if so ordered by competent authority, with a view to keep the peace, and suppress such violence

as is beyond the power of the local peace officers or courts to control.

3. That in all cases where it is alleged that armed soldiers have interfered with the freedom of an election, either by their presence or their conduct, or both, all the facts are to be considered and the question is, whether by reason of the action of such armed soldiers, legal voters have, for sufficient cause, felt themselves obliged to abstain from voting in numbers so large that if they had voted it would have changed the result or rendered it uncertain.

§ 422a. In the case of Bromberg vs. Harralson (44th Cong., 1st Sess.) the House of Representatives held that the stationing a small squad of soldiers in the neighborhood of an election did not justify a rejection of the poll, where there was no threatening conduct on their part, and no evidence of actual intimidation.

§ 423. In the case of Biddle & Richard vs. Wing, (Cl. & H. 506-7,) the committee of elections of the House of Representatives expressed the opinion that it was not the duty of the House "to inquire into the causes which may have prevented any candidate from getting a sufficient number of votes to entitle him to the seat." They considered that the duty of the House was to inquire, and if possible, ascertain "who had the greatest number of legal votes actually given at the election." And accordingly the committee held that they could not inquire into the truth of the allegation of one of the contestants, who did not claim to have received the greatest number of votes actually cast, but alleged that "he would have received the greatest number of votes had not his friends, at the election holden in the city of Detroit, been intimidated from voting," &c. This report was never acted

upon by the House, and therefore is without its sanction, and depends for its force as a precedent solely upon the committee's recommendation.

It can hardly be said to state the doctrine upon the subject with completeness or accuracy. Intimidation of voters may always be shown, and allegations and proof upon this subject should always be heard. It must, however, in the nature of things, be a rare case in which the votes of persons prevented from voting by violence or intimidation can be counted for one or the other candidate, as if actually cast. In order that a vote not cast, shall be counted as if cast, it must appear that a legal voter offered to vote a particular ballot, and that he was prevented from doing so by fraud, violence, or an erroneous ruling of the election officers. Just what is to be understood by offering to vote is not perhaps perfectly well settled. If a voter approaches or attempts to approach the polls, for the purpose of depositing his ballot, and is driven away, or by violence, intimidation or threats, prevented from the actual presentation of his ballot to the proper officer, and if he used proper diligence in endeavoring to reach the polls and deposit his ballot, and was not intimidated without sufficient reason, the better opinion seems to be that his vote may be counted. But of course voters who do not present themselves at the polls and offer their ballots, or who do not attempt to go to the polls at all, or attempting, fail, without reasonable cause, cannot in any case ask that their votes be counted. (Newcum vs. Kirtley, 13 B. Monroe, 515.)

§ 424. But there is another ground upon which it is, in such a case, proper to offer proof of intimidation and violence, and that is to the end that the House may determine whether there has been a free and fair election. For, if, by this means legal voters

have been deprived of their right to vote in numbers sufficient to change the result, the election may be set aside. In the report just referred to, the committee concede that there may be a case in which "fraud and corruption should appear sufficient, to destroy all confidence in the purity and fairness of the whole proceeding." And it is very clear, that, if in the course of an investigation it should become apparent, that there was intimidation and violence sufficient to destroy the election, it would be the duty of the House to declare it void, even though no party to the contest has formally alleged that it was So. If the allegation be as in the case of Biddle and Richard vs. Wing, supra, that enough of the friends of a contestant were deterred from voting by violence and imtimidation to have elected him, if they had been allowed to vote, as was their right, yet, if the evidence shows that the election should be set aside, the House will not stop short of its duty for want of an allegation that the election was fraudulent and void. A court of justice might be so hampered by the rules of pleading as to be unable to grant any relief beyond that prayed for, but the House of Representatives is not.

§ 425. In saying that upon sufficient proof of violence and intimidation an election may be set aside, we mean, of course, that the particular poll or polls, where such violence occurs, shall be thrown out of the count. Whether in a case where a number of counties or precincts vote for the same officer, and a portion of them are rejected for this cause, the entire election is to be held void, is often a question of difficulty. It is very clear that if the violence has

prevented a large proportion of the electors in the whole district from participating, the election is void, and it is also clear, that if only a small part of the district was disturbed by it so that the great body of the electors have had a fair opportunity to vote, then the election must stand, unless it can be shown that but for the violence the result would have been different. The difficulty arises in cases where the infected part of the district is neither so large as to make it clear that the election is void, nor so small as to make it clear that the election is not void. Each case of this character must be determined by the circumstances surrounding it, and with a view to promote the ends of justice. Much will, of course, depend upon the relative vote of the several candidates outside of the infected districts, because if any one has a very large majority in the peaceable localities, and the vote of the infected precincts is not large, there will be less probability that the result has been achieved because of the violence; while on the other hand, if the vote of the peaceable precincts is very close, the rejection of a small district for violence might be regarded as fatal to the election. In a word, if it is apparent that to accept the result as shown by the peaceable precincts, would be to allow the minority to choose the officer, then the election is to be held void.

§ 426. It was laid down by the committee of elections of the forty-first Congress, in several cases, that violence and intimidation in some of the precincts does not invalidate the election in those which are peaceable. (Hunt vs. Sheldon, 2 Bartlett, 530703. Sypher vs. St. Martin, do, 699. Wallace vs. Simpson, do, 731. Darrall vs. Bailey, do, 754.)