the election, testifies as follows regarding the ballots which he says were rejected (see Record, page 304, near bottom):

Q. Your eyesight is a little defective and infirm without your glasses?-A. Yes, sir; I can read large print; I do not do it, however, without my spectacles, but I can. Q. Can you see the words first district on that ticket (handing witness a ticket)?—A. Yes, sir.

Q. Can you see the words first district on it ?-A. Yes, sir.

Q. Can yon see the words first district on the back when folded with the printing inside?-A. Well, I wouldn't know that unless my attention was called to it.

Q. Could you read it if your attention was called to it?-A. I suppose I could if my attention was called to it.

Q. Can you, when the ticket is open, read the words first district without your glasses -A. Yes, sir.

Q. When the ticket is closed now, with the printing inside, can you see by reading backwards, when your attention is called to it, the words first district; wouldn't you be willing to swear there was a D-A. Yes sir.

If feeble old men could identify the ballots, when folded, which Mr. Lowe claims were rejected in the railroad towns, it is evident that it would have been impossible for such ballots as Mr. Lowe's witnesses put in evidence, and swear were used in Franklin County, to have escaped the scrutiny of the party managers.

The contestee, in his answer, denied the allegation of the contestant regarding the rejection of ballots, and the contestant has failed to prove by legal evidence that any ballots were rejected by the inspectors. We think that none of the evidence by which he attempts to prove these facts is legal. The witnesses merely give their recollection on the subject. Many of them made out returns one or more days after the elec. tion was over, and in many cases they admit that even these returns were made out from hearsay, and many of them show by their evidence that their entire knowledge on the subject is hearsay. For instance, on page 62 of the contestant's brief, he claims that 4 Lowe votes were rejected at Florence; but we think there is not a particle of proof to sustain this. He quotes the evidence of Judge Harraway (p. 908), and Judge Harraway states that he knows nothing personally about it.

On the same page of his brief he claims that 22 Lowe votes were rejected at Green Hill. There is no legal evidence to sustain this. The witness on whom Mr. Lowe relies (William H. Hill) testifies, near bottom of page 1389, that he does not know that 22 ballots were rejected. He admits that immediately after the election he made an affidavit before Commissioner Bone that 15 ballots were rejected at that box; he admits that he knows nothing about it except what a man told him; there is no other proof regarding that box.

Again, Edward C. Lamb, page 150, testifies as follows:

Q. Did you count these 42 ballots yourself?-A. No, sir.

Q. Then your knowledge-is it not true that your knowledge of there being 42 is simply hearsay?-A. No, sir; I seen on their tally sheets.

Q. And yet you swear that there were 42 votes rejected with Lowe's name on them, without ever seeing them, and without ever counting them ?-A. I seen them lying aside there when they were recounted.

Q. Is it true that you saw them all in a bunch?-A. Yes, sir; when they were laying them down or counting them out.

Q. Is it true that you examined every ballot, and saw it have on it the name of William M. Lowe -A. No, sir.

Such evidence as this proves nothing.

The law of Alabama (see Code, par. 288, printed page 1215 of the record in this case) provides that all rejected ballots shall be rolled up by the inspectors and labeled as rejected ballots, and that they shall be sealed up together with the other ballots, and securely fastened up in the box from which said ballots were taken when they were counted.

The answer of the contestre distinctly alleged that where votes for William M. Lowe were discarded, it was so stated in the returns made by the inspectors. In no instance did the contestant put these returns in evidence, or give any reason for not doing so. Nor did he put the ballots which he claimed were rejected in evidence, nor does the record show that he gave any reason for not doing so.

Furthermore, not one of the 49 depositions was in any way certified by any commissioner.

None of the depositions have any certificate of any kind whatever. It is provided in the Revised Statutes of the United States as follows:

SEC. 127. All officers taking testimony to be used in a contested-election case, whether by deposition or otherwise, shall, when the taking of the same is completed, and without unnecessary delay, certify and carefully seal and immediately forward the same, by mail, addressed to the Clerk of the House of Representatives of the United States, Washington, D. C.

The notary who took the so-called depositions of the witnesses named above, took, in all, the depositions of 177 witnesses, a part as testimony in chief and a part as testimony in rebuttal. He certified none of the 177 depositions, except those of J. H. Bone, W. M. Lowe, R. H. Lowe, and J. H. Sloss. His only certificate is that which (itself irregular and insufficient) is affixed to the deposition of W. M. Lowe, the contestant, on page 1263, wherein he certifies (irregularly) the depositions taken under "the notice to contestee." Under that notice, which is printed on page 1264, only the depositions of J. H. Bone, W. M. Lowe, R. H. Lowe, and J. H. Sloss were taken.

The only certificates in the entire record which refer to the contestant's testimony are as follows: Page 205, a certificate of Commissioner Thomas C. Barclay, reciting that it is the certificate to the deposition of James Jones, John Kibble, Alex. Jamar, and George Ragland, taken at Lanier's. It is dated January 26, 1881.

Page 293, the certificate of Commissioner A. C. Bentley, who certifies to the deposition of 55 witnesses, whose names he gives, and none of which are the names of any of these 49 witnesses. It is dated April 1, 1881.

On page 338 we find certificate of Commissioner Archibald W. Brooks, which mentions eleven witnesses, none of whom are included in the 49 referred to. It is dated May 12, 1881.

On page 402 is the certificate of Commissioner Amos R. Moody, which is attached to the deposition of seven (7) witnesses, and it certifies to the depositions thereto attached, but none of the names are those of any of the 49 witnesses referred to. It is dated March 15, 1881.

On page 460 is the certificate of Commissioner E. P. Shackelford, attached to the deposition of W. W. Simmons, and on page 462 is the certificate of same commissioner, attached to deposition of Alex. Hetlin. Both are dated March 11, 1881.

On page 1263 we find a certificate of Commissioner Robert W. Figg. It certifies to the depositions of the witnesses named in the notice to the contestee.

The certificate is dated March 16, 1881, and is attached to the deposition of William M. Lowe, and the notice also attached and referred to in the certificate contains only the names of James H. Boue, William M. Lowe, Richard H. Lowe, and Joseph H. Sloss. (See page 1264.)

The next certificate is that of Commissioner William T. Farley, on page 1361. It is dated March 28, 1881, and purports to be, and is, at

tached to the deposition of twelve witnesses, all of whom are mentioned in the certificate.

The last certificate is that of Commissioner Robert Andrews, on page 1399. It purports to be a certificate to nine witnesses, all of whom are named in the certificate.

There is no other certificate in the record except those attached to the depositions of the contestee.

The only proof of the rejection of these votes is to be found in what are claimed to be the depositions of T. W. White, 37; W. L. Goodwin, 42; N. Davis, 47; T. B. Hopkins, 130; L. Bibb, 137; G. W. Maples,140; W. L. Christian, 143; R. J. Wright, 148; E. C. Lamb, 150; N. Whittaker, 153; W. G. Smith, 370; A. Gandy, 373; H. A. Skeggs, 376; J. Y.Ferguson, 382; W. A. Pinkerton, 339; A. G. Smith, 343; A. C. Witty, 346; W. McCulley, 349; J. E. Seal, 394; D. N. Fike, 397; T. C. Walker, 404; W. J. Gibson, 496; W. W. Simmons, 496.

The contestee objected to these depositions at the commencement of the present session of Congress on the ground that they were not certified according to law, and has persisted in that objection until the present time.

Again, none of these alleged depositions were reduced to writing in the presence of the notary.

The provision of the Revised Statutes of the United States is:

SEC. 122. The officer shall cause the testimony of the witnesses, together with the questions proposed by the parties or their agents, to be reduced to writing in his presence and in the presence of the parties or their agents if attending, and to be duly attested by the witnesses respectively.

The corresponding provision of the judiciary act of 1789 is in the following words:

And every person deposing as aforesaid shall be carefully examined and cautioned and sworn or affirmed to testify the whole truth, and shall subscribe the testimony by him or her given after the same shall be reduced to writing, which shall be done only by the magistrate taking the deposition, or by the deponent in his presence.

The provision that the deposition must be reduced to writing in the presence of the officer is common to the contested-election law and the judiciary act of 1789. It is obvious, therefore, that decisions of the Federal courts on the provision of the judiciary act for the writing out of the deposition will be authorities in cases which may come before this committee under the corresponding provision of the statute relating to contested elections.

In Bell v. Morrison, 1 Peters, 351, Judge Story, delivering the opinion of the court, held that under section 30 of the judiciary act a deposition is not admissible if it is not shown that the deposition was reduced to writing in presence of the magistrate.

The same doctrine is maintained by the following authorities: Edmondson v. Barret, 2 Cranch C. C., 228; Pettibone v. Derringer, 4 Wash., 215; Rayner v. Haynes, Hempst., 689; Cook v. Burnley, 11 Wall., 659; Baylis v. Cochran, 2 Johns. (N. Y.), 416; Summers v. McKim, 12 S. & R., 404; United States v. Smith, 4 Day, 121; Railroad Co. v. Drew, 3 Woods C. Ct., 692; Beale v. Thompson, S Cranch, 70; Shankriker v. Reading, 4 McL., 240; United States v. Price, 2 Wash. C. Ct., 356; Hunt v. Larpin, 21 Iowa, 484; Williams v. Chadbourne, 6 Cal., 559; Stone v. Stillwell, 23 Ark., 444.

This objection applies to the 49 depositions which it is claimed were taken in Huntsville before R. W. Figg, esq., during the forty days allowed by law for contestant to take testimony-in-chief; and to 110 depositions which purport to have been taken at Lanier's during the period allowed by law for contestant to take evidence in rebuttal.

The record does not show that any of these so-called depositions were reduced to writing in the presence of the officer before whom they purport to have been taken.

On the contrary, the proof shows this was not done. The evidence, page 1116, shows that these so-called depositions were taken down in short-hand, and that they were afterwards written out in long-hand in the absence of the officer, and page 1125 shows that important exhibits were attached to the depositions which the witnesses did not see. The motions which are supported by affidavits should be sustained, and the 49 alleged depositions mentioned in said motions should be suppressed; the motion to suppress 110 alleged depositions taken at Lanier's should be also sustained, and those depositions should be sup pressed.

The Views of Mr. Ranney" contain the following statement:

The course pursued in this respect was manifestly irregular. But this becomes now immaterial and unimportant. The various motions made by the respective parties, as to striking out evidence have been considered and denied, either as immaterial or not well grounded.

If this merely means that the decision of the case on its merits by the Committee on Elections involves a decision of these questions of evidence, and that therefore the duties of the committee on the subject are ended, the statement is accurate enough. But if the meaning is either that the committee has formally acted on these questions of evidence, or that action by the committee, however had, concludes the House of Representatives, so that these questions "have become immeteral and unimportant" in the House, the statement is wholly erroneThe House is the judge on this point, as on all others involved in the case, and the materiality and importance of these questions in the House is not affected by the action of the committee.

ous.

(3.) We now proceed to the consideration of the counter-claim set up by the contestee, to the effect that 1,294 ballots cast for the contestant were illegal, not only because they contained the designations of eight offices unknown to the law but also for the further reason that they were printed on such transparent paper, and with such ink and type, that the contents were visible to the inspectors and bystanders on the outside of the folded ballots.

The statutory provision, as we have seen, is that unless the ballot is "without any figures, marks, rulings, characters, or embellishments thereon" it must be rejected. Whatever else may or may not be embraced in the meaning of the term "marks," as here used, that term evidently includes any device or combination of devices which will enable either the inspectors, when they receive a ballot and pass it from hand to hand for deposit in the ballot-box, or the near by-standers, to distinguish it from other ballots. In this sense the term "marks" may include several things or elements. It may apply to a star, cross, line, or circle, or to any other printed form, or to a series or number of forms, placed on the exterior of the ballot, so as to enable the inspectors or bystanders to distinguish it from others. The ballot would in that case be marked. It would not be, in the sense of the statute, “without marks." It would fall within the prohibitions of the statute.

But if by the use of such paper and of such type and ink on the face of the ballot as to show the face or a part of it through the folded ballot the inspectors and by-standers are enabled to distinguish it from others, then also the ballot is marked, in the sense of the statute, whether the words themselves are or are not legible on the outside of the folded ballot. It is enough if they are clearly visible, so that the ballot may be distinguished from ballots of a different kind.

The following are exact representatives of 1,294 ballots which are proved to have been cast for the contestant and counted for him, and are to be deducted from his vote. These ballots, when folded, are readily distinguishable by the inspectors and by-standers, not only from the ordinary legal ballot, the face of which is not visible through the paper on the reverse side, but also from each other:

FOR ELECTORS FOR PRESIDENT AND VICE