Again it will be apparent that the contestant can be entitled to the votes found in his favor upon the recount only upon the hypothesis that the judges returned to the boxes the same votes taken out of them. This hypothesis involves the additional assumption that these fifteen election officers, while in the act of perpetrating their crime, knowingly sealed up and preserved for the use of the prosecuting officers the best and only evidence that could convict them. What police justice ever found so strange and grotesque a combination of knavery, folly, and stupidity united in the same culprits?

There is nothing to indicate that the contestant himself supposed that he had reason to suspect these election officers till after the governor refused to issue a proclamation in his favor so as to enable him to avail himself of the fraud of Byerly, nor that he had reason to believe that proof of fraud would be revealed by unsealing the ballot-boxes till more than eight weeks after the votes had been returned to them. Nor does it appear at what time or in what way the revelation was made to him that this eighteen upon which this tower of Siloam fell were any more worthy of condemnation than the residue of the ballot-boxes in the city of Philadelphia.

*

This case, as it now stands before the committee and the House, in some of its important features, is of a new type, and, as the undersigned believe, without precedent in contested elections in Congress or elsewhere The ballot-boxes opened in behalf of the contestant, as we have seen, were provided, used, and kept under the statute law of Pennsylvania, and to be so kept, in the language of the law, "to answer the call of any person or tribunal authorized to try the validity of the election." In that State, to obtain an order of that sort it is necessary to make application to the court for it, and the application must be supported by such sworn testimony as will satisfy the court that the granting of the order would promote the ends of justice. In that State we find several reported decisions referred to in which an order for this purpose was applied for and denied, but none in which it has been granted. In the present case these boxes were opened, against the protest of the sitting member, by the order of the magistrate who took the testimony, and upon the demand of the con testant, without an order of any court or of this house or its committee, and without any proof, by oath or otherwise, that these boxes contained testimony pertinent to the issues in the case. In our judgment the magistrate was not a person nor a tribunal authorized to try the merits of this election, and had no authority under the law of Pennsylvania or of Congress to order those boxes to be broken open.

In the opinion of the undersigned, the objection of the sitting member to the opening of these boxes was well taken; and if that objection had not been waived at the hearing, the testimony as to the recount should have been overruled. If a practice of this sort should be sanctioned, as it will be if this case should be made a precedent, the Committee of Elections of this house, in the future, will have no occasion to be idle for the want of a docket.

What candidate for Congress in the future, whether counted out by the judges of election by a majority of one hundred and thirty-two or more or less than that number, would be so destitute of public enterprise as not to claim a second trial before "a mayor or recorder of any city or town in the United States," or a constabulary court of two justices of the peace, with a profert and rummage of the ballot-boxes, especially when it could be done without putting his purse in jeopardy by giving bail for cost, or filing his conscience by the cheap and easy ex parte oath of a litigant in court? And to what extent may we not expect to see efforts and enterprises of this sort quickened into life and intensified in earnestness when we consider that the guerdon of success, on the one hand, is a seat in this house, and that the pain and disappointment of defeat, on the

other, are soothed and mitigated, if not, in fact, wholly cured, by pro rata pay and congressional mileage?

The views of the undersigned in respect to this appeal to the reopening of the ballot-boxes, and of the mischiefs, abuses, and evil consequences to which it must lead, unless restrained by stringent and well-understood rules and safeguards, are so well expressed in the opinion of the court in the case of Kneass vs. Reed, upon a motion for opening the boxes for a recount, that we take the liberty to quote briefly from that decision:

* *

The authority given us by law (say the court) is to inquire into the undue election and false returns of certain election officers. The returns of such election, made by the officers charged by law with conducting them, are to be received as true till the contrary is shown. Every fair presumption is to be made in their favor. These are fundamental principles, applicable to all sworn officers. Is it too much to require of a party who seeks to assail such returns a precise statement, authenticated by oath, of the grounds of fact upon which he impeaches the doings of hundreds of sworn officers? Ought not he who desires to search into a ballot-box to give other reasons therefor than his mere wish to do so, in the hope of finding something that may inure to his own advantage? Surely the answers to these propositions must present themselves to a calm and unbiased mind the moment they are stated. And must not the answers be, that the sworn returns are the official expression of the doings of each and every election poll, and that the contents of every ballot-box must be presumed to be truly expressed by the returns thereof?

The long period which must necessarily elapse between the holding the election and the arrival of the time for contesting its results would afford a terrible opportunity to deal with the thousand of ballot-boxes scattered over the State. No more ingenious way could be devised to invite fraud than such looseness of procedure; and once established, a flood of evil would inevitably rush in, which those having the most acute foresight could hardly estimate the amount of. All this to some extent could be avoided by simply requiring that he who desires to scrutinize the contents of the ballot-boxes should first say, on oath, what he expects to find in each of them incompatible with the returns predicated upon them. Whether in the face of the foregoing facts, considerations, and suggestions, apart from the direct testimony of the sworn witnesses, the contestant may be regarded as having established his claim to a seat in this house, either by the weight of evidence or beyond a reasonable doubt, the exigencies of the case do not require the undersigned or the House to determine. But when to the foregoing attending circumstances and incidents of the case, such as appear negatively as well as positively, there is added to the same scale the direct, explicit, and uncontradicted testimony of the election officers, the undersigned cannot doubt or hesitate in respect to the conclusion to which they should come.

It has been the aim of the undersigned to investigate, collate, and present the facts and testimony in this case in such way as they might be readily understood and appreciated, and so as to serve the ends of right and justice between the parties most immediately interested; and in the discharge of this duty they have come to the unhesitating conclusion that the testimony submitted by the parties to the Committee of Elections does not show that the contestant is entitled to a seat in this house; but that it does show that the sitting member is entitled to retain the seat heretofore awarded to him. In accordance with the foregoing conclusions, the undersigned submit the following resolutions : Resolved, That John M. Butler is not entitled to a seat in this house. Resolved, That William E. Lehman is entitled to a seat in this house.

SAM'L T. WORCESTER.
J. W. MENZIES.
G. H. BROWNE.

The following are extracts from the debate in the House: Mr. WORCESTER. The contestant, it will be seen, claims a seat in this house by undertaking to show that the election officers in these ten election divisions have been guilty of a violation of law; and in order to substantiate this right, and make out his case in accordance with the ordinary rules of evidence, it is necessary for him to prove his charges, not merely by the weight of testimony as in civil cases, but establish them, as in criminal prosecutions, beyond a reasonable doubt. And to show that such is the law, I refer to page 56 of Best's Presumptive Evidence:

"It is a presumptio juris, running through the whole law, that no person shall, in the absence of criminative proof, be supposed to have committed any violation of the criminal law, whether malum in se or malum prohibitum. And this presumption is not limited to proceedings instituted with the view of punishing the supposed offence, but holds in all civil and other proceedings for whatever purpose originated, and whether the guilt of the party comes in question directly or collaterally.

But the sitting member does not claim, and the minority of the committee do not insist upon, the benefit of any technicalities of this sort. So far as the rights of the parties are concerned, the minority of the committee are disposed to have the matter submitted to the House on the weight of the testimony. The only evidence that has been introduced by the contestant is the recount of the votes in the ballot-boxes; and it has been well said, that in order to give confidence to that recount, and to justify the majority of the committee in their report in favor of the contestant, in was necessary that, in the first place, these boxes should be identified. This appeared to be a matter of very considerable difficulty on the part of the contestant. These boxes had no marks upon them, no indications to show when they were used, or at what election precincts. They were all of the same size and color, and had, as appears from the testimony, evidence of having been often used. When witnesses were called upon for the purpose of identifying them, and determining at what particular division they had been used, they were in many instances wholly unable to do so. Alderman McMullen, one of the witnesses who was first called upon, was requested to produce a box which belonged to the seventh division of the fourth ward. He produced a box which he said he believed to have belonged to that division. On opening it, it was found to have been used at the presidential instead of the State election. And so he went on from box to box, guessing at the right one, till he opened four before he found the one he was in search of. This, gentlemen, is but a fair example of the persistent efforts made to discover these boxes. The principal evidence which is claimed as showing their identity is that which results from their contents. If the contents agreed with the official return as made by the election officers, their identity was regarded as established. If it came near it, it was regarded as good proof of identity, yet not absolutely conclusive. If the discrepancy was very considerable, it was a proof against identity, and the identity had to be established in some other way. It seems to me that the fact of the difference being small is very unsatisfactory evidence of identity, and that where the difference was large, the box being identified, it was either evidence of fraud on the part of the election officers or of some one else; and then the question to determine would be whether it was the fraud of the election officers or some one else.

Mr. HARRISON. I desire to ask my colleague a question. I have not had an opportunity of examining the testimony in this case, and therefore I would inquire of him whether there was any evidence before the Committee of Elections tending to explain why three months elapsed from the time the ballot-boxes were placed in the possession of the aldermen before the recount took place?

Mr. WORCESTER. There is no explanation in the testimony upon that point. The testimony shows that the boxes remained in the same custody, or rather, I should say, in the possession or on the premises, of the men by whom they were taken immediately after the election.

Mr. DAWES. Perhaps my colleague upon the committee has overlooked this fact, that the election was held on the second Tuesday in October, and that up to, I believe, the 9th day of November, the contestant was declared the sitting member, and of course had no occasion to move in the matter. On the 9th day of November, the governor, by his procla mation, very properly, as I think, declared that the sitting member was entitled to the certificate.

The law requires that the man who contests with him who holds the certificate shall file his allegation in a given time. He has thirty days to do it in. The respondent then has thirty days to file his answer, before testimony can be taken. That length of time did not elapse, however, because these parties did not avail themselves of all the time allowed; but a whole month elapsed before any certificate was granted to anybody, before either of them knew which of them was to file the allegation. On the 6th of December, which was another month, the last of the specifications was filed by the contestant. To that the sitting member responded without any unreasonable delay. But two months elapsed, necessarily, before the pleadings were in such a shape as to call upon the sitting member for his final answer. He had some time-I do not remember exactly how much time-to file his answer, and then it was, in the early part of January, that they commenced the taking of testimony. Perhaps that is some explanation.

Mr. WORCESTER. My recollection is, that the original specifications were filed on the 9th of November, and in those specifications there was no notice of any intention on the part of the contestant to resort to these ballot-boxes. Afterwards, on the 6th day of December, additional specifications were filed, and appended to those specifications was a notice given to the sitting member that the contestant would resort to the ballot-boxes for a recount, but there is nothing in the testimony before the committee which goes to show that any steps or measures were taken to add security in any way to the ballot-boxes or their contents.

Mr. DAWES. Perhaps my friend can state to the House what it was that the contestant could do to add to the security of ballot-boxes which were in the custody of the law and not within his reach.

Mr. WORCESTER. I suppose there are means of preserving and perpetuating testimony in the State of Pennsylvania. I believe there are in most of our States, and I hope the laws of Pennsylvania are not defective on that point.

Mr. DAWES. There are no means in the State of Pennsylvania for preserving testimony in contested election cases before this house, except those prescribed by an act of Congress, and that act I have stated.

Mr. WORCESTER I cannot answer the gentleman on that point. As I have said, this is the first case of the kind that has occurred here. I know of no other like it in the history of contested elections. I believe it to be without precedent, and it is for the House now to determine, by its action in the case, what practice is to be inaugurated in respect to cases of this character. If a party who is defeated in a contest at the ballot-box for a seat upon this floor can, without any showing at all, without giving security in any manner, upon his own mere motion, go to the magistrates, or to the trustees of a township, or to the aldermen of a city, and claim from them, by giving notice of contest, that the ballot-boxes shall be reopened and the ballots recounted, it is time that this house knew that such is the state of the law. As I said, the case is without precedent; and I will say, further, that in the State of Pennsylvania, under whose laws these ballot-boxes are provided and kept, though there are quite a number of precedents reported in their books where parties have attempted to resort to the ballot-boxes for a recount, in every reported case the motion has been denied by their courts. Such a motion, when made before their courts, has been made upon the oath of the party, that the ballot-boxes contain evidence that would be pertinent to the issue to be tried. And not only that, sir, but it is necessary, under their laws, that that notice shall be given within a very short time after the election takes place, and relief can be granted in such cases only upon a showing under oath and upon the order of the court. In this case it was done by the act of the party himself; and if this case is to be drawn into a precedent, then I may well ask which of us is safe in our seats here? There is not a member of this house in whose case the ballot-boxes may not be opened and a recount demanded, under similar circumstances.

Mr. RIDDLE. Mr. Speaker, feeling constrained to differ from the conclusion at which the majority of the committee have arrived, without any purpose whatever to detain the House by any extended remarks, I beg leave to refer to one or two of the principal points in this

case.

By the action of the House at the extra session, as it is called, the sitting member acquires what lawyers call a prima facie right to his seat. That is opposed by the contestant by what he says is proof that overcomes it, and settles the merits of the controversy. That proof consists entirely and exclusively in a recount of the ballots which he says were cast at that election. Now, everything depends completely and entirely on the fact on which this proof can alone be predicated-the identity of the ballots counted with those that were cast at that election. If there is a failure in the proof to establish that identity, then the proof necessarily fails, and, so far as it is made to depend on them, it leaves the case entirely uncom promised.

Now, I do not propose to examine the question of legal custody. I do not propose to say a word about the proof of the identity of these ballots, except as to that which is drawn from a single and most peculiar source. On page 6 of the majority report you find just exactly the kind of proof of identity on which the committee predicated their report in favor of the contestant. It is this:

"The testimony shows that there was much difficulty in determining to what particular divisions the boxes belonged before they were opened, as the boxes generally were without labels or external marks of identification; but it is not essential that the boxes should be identified before being opened. After any box had been opened, there was little danger of mistake in determining to what election and to what division it belonged.

*

"If the names of the contestant and respondent, as candidates for Congress, were found on the tickets, it would be certain that the ballots were cast at the election in question, as those gentlemen were never opposing candidates at any other time."

Now, sir, this case is met with a proposition to give in evidence the contents of certain papers. What is the first question? You must not only establish the identity of the papers, but you must also establish their execution. How do you establish the identity of the papers? It is sought to be done here by showing the custody from which they were taken. How establish that? The committee themselves say that these papers-the ballots that have been used-can be witnesses in the case to establish the identity.

Mr. DAWES. The paper that the committee speak of as one of the papers sealed up in a particular box is the oath taken by three men as judges, to which paper their names are attached, and the certificate of the magistrate. Three men bearing those names were judges in a particular district. There are no such names of men as judges in any other district. The law requires that the boxes shall be sealed up, with the certificate of their qualification in it. Now, I wish to know from my friend what more is necessary, when you open a box containing that certificate and these names, to trace it right to that division? That is the identity.

Mr. RIDDLE. It so happens, Mr. Speaker, that the ballots are not laid in the box with the certificate, but are in a box by themselves. I know that they are found within the same box,

but they are just as effectually cut off from each other as if they were a thousand miles apart. Does the gentleman claim to identify these ballots by the other papers to which he refers ? These papers contradict his ballots.

Mr. DAWES. I do not see the gentleman's point, or he does not see mine. I understood him to say, which induced me to rise, that the papers that were found were no evidence, for the reason that we did not prove their execution. There is no such thing as proving the execution of a ballot. The papers found in one of the two boxes have the names, in their own handwriting, of the men who acted as judges in a particular precinct; and when you open the box and find in it the paper with these names, I do not doubt that the box belongs to the division where these men were judges.

Mr. RIDDLE. I was unquestionably very unfortunate in the expression that I used. I did not say a word about this certificate or any of the accompanying papers. With them I have nothing to do. I was speaking of the ballots alone that are shown by the proof to have been contained in a box exclusively by themselves.

Mr. DAWES. Now will my friend tell us what he means by proving the execution of ballots?

Mr. RIDDLE. Certainly I will. I was remarking on the general proposition that a paper offered for proof is, first, not only to be identified, but proof of the execution is to be given. In the instance of a ballot, the same proof that identifies it does prove its execution. So that it comes back here to a question of identity. Before it can be used at all for the purpose of evidence its identity must be established. You established it, the gentleman says, by establishing the identity of the place where it is found. How do you establish that identity? By the contents of the paper itself? Why, by the rules of evidence, the paper can utter no story for any purpose. Before you can read the paper at all you must settle the question of identity. And yet the committee read the paper, and the paper alone, to establish that identity. Am I understood here? If so, sir, there is not one shadow of proof that amounts to that grade of certainty which the judicial or legal mind tolerates as proper, on which to predicate any conclusion, however slight in its gravity, to sustain the identity of these ballot-boxes. But here they refer to these ballots to establish their own identity before the identity of the boxes is established.

Then, sir, meeting this question at the very threshold, I say there is no proof on which any recount can be predicated, because they have failed to establish the identity of the ballots cast with the ballots found. It could not be done, because the proof on which gentlemen rely they are estopped from using.

Mr. CAMPBELL. *

*. Now, this act of the legislature ordering a recount in cases of a contested election means something, or it means nothing. If it is a dead letter upon the statute-book, then it amounts to nothing. But it is a vital statute, and was intended to meet a case like this, where from alleged fraud or mistake it cannot be determined who received the highest number of votes without resorting to a recount. In just such a case as this our courts of law would order a recount of the ballots, and then take such action as they saw proper, or submit the whole case fairly to a jury, as in this case the evidence is submitted to the House of Representatives.

Now, sir, we come to the point-and it is the only point in the case-were the boxes opened after they were sealed up by the election officers and before they were reopened by the commissioner who took the testimony? To hold that they have been opened after they were sealed up, in the face of certain facts I will demonstrate, is perfectly preposterous. In the first place, to have reopened those eleven boxes, and deposited fraudulent ballots in them, would have involved the fraud of some five aldermen, with whom different boxes had been deposited, and the fraud of the parties who were aiding and abetting in depositing the additional votes. More than that, it involves the fact that you could not detect where any one of those eleven boxes had been opened, from any change of tape, or any change of or injury to the seals. But it goes still further than that, and becomes perfectly ridiculous. Tell me, would men contemplating a fraud upon the elective franchise to the extent of 130 votes deposit in one box only one vote out of the 130, as occurred in one case out of the eleven; or, as in another case, would they get five aldermen, and other parties to the fraud, to break the seals and tape, to put in a ballot-box three additional ballots out of 130? I hold it is a monstrous supposition. Parties to a fraud like that would have deposited a certain number of ballots, enough to change the result in one, two, or three of those boxes. They would have taken into their confidence one or two aldermen, not eleven, nor five, besides sundry other parties, to join with them in putting into one box a single vote, in another three, in another five, and in another seven.

Sir, I reject this hypothesis. I look to the more rational explanation; and that is, that these election officers, on the night of the election, in their haste, and in the manner in which they counted the votes, committed these errors by mistake, and not by fraud. I do not suppose that all, or, it may be, that any of these election officers were guilty of fraud votes for the contestant which belonged to the sitting member, and vice versa. they counted them in haste on the night of the election; and that in counting tens, in violation of law, and not singly, they committed the mistake of two in another, seven in another, and so on to the highest number referre Why, they were not counting the votes as the law of Pennsylvani