and is not now before the committee; and affiant avers, and so charges, that the said testimony was withheld by reason of conspiracy and collusion between said Smith and contestee or persons acting in his behalf; that he spoke to said Smith about forwarding the testimony after the same had been concluded, and the said Smith made no objection thereto and made no demand for payment of any sum of money as a prerequisite to his forwarding the same. That he paid the said Smith about forty-five dollars for said service, and still owes him about fifteen dollars, but, as before stated, the said Smith never required that this latter sum should be paid before forwarding the testimony, and though affiant has conversed with the said Smith several times since taking the testimony, he never gave affiant to know that the testimony had not been forwarded as by law required, or made demand for the balance due, but on the contrary consented to forward the same without prepayment thereof. Affiant cannot now give the names of the witnesses examined as aforesaid, because the notice in which they are contained was delivered to the said Smith to be forwarded with the testimony.

Affiant avers that before W. O. Baldwin, mayor of Union Springs, in Bullock County, there were regularly subpoenaed and in attendance to be examined in his behalf, on the 20th day of January, 1881, two hundred and fifty witnesses; that he duly appeared before said Baldwin with his said witnesses at the time named, and demanded that the examination should proceed; that a number of lawyers, appearing for said contestee, insisted before said Baldwin that he had no power to take said testimony, because he was a relative of contestant, he being, in fact, the cousin of contestant's wife; that contestant insisted that the examination should proceed, and that the House of Representatives might pass upon its legality; but the said Baldwin, being in sympathy with contestee, and favoring the fraudulent and illegal practice by which contestee was made to receive his certificate of election, and inimical to the contestant, and with a design to embarrass and obstruct contestant, refused to take the said testimony because he was the cousin of contestant's wife, upon objection for this reason alone, made as aforesaid by the attorneys for contestee; and affiant avers that no officers under the laws of the State of Alabama, in said county, competent to take said testimony could be found by him whom he would have reasonable ground to believe would be as reasonable and fair in taking testimony in his behalf as the said Baldwin; and affiant avers that the time and expense and labor of summoning and preparing to examine and causing the attendance of witnesses were without avail to him, for the reason aforesaid. Affiant made application to the judge of probate of Bullock County, I. B. Feagin, to take his testimony, but the said Feagin, being in sympathy with the frauds committed in behalf of said votes, refused to take the testimony for affiant, he, the said Feagin, having obtained his office in the same way that contestee obtained his seat in this Congress, in this, that though the said Feagin was actually defeated in the election in which he was a candidate for probate judge by more than two thousand votes majority actually received by his opponent, yet by the same fraudulent practices charged by me to have occurred in my election he was declared elected, and now holds the office.

Though affiant's forty days had expired he still persisted in trying to take testimony, in order that this honorable committee might be made to know, as far as lay in his power to enable them to learn by legal proof, the merits of his contest, and to sustain his application for further time in which to take testimony, and for this reason before Simeon O'Neil, judge of probate of Russell County, affiant having duly served notice upon contestee, and the said O'Neil having agreed to take his testimony, had in attendance before him, on, to wit, February 28, 1881, a large number of witnesses, but the said O'Neil, against the protest and objections of affiant, refused to examine said witnesses, after having issued and served subpoenas for said witnesses at expense of affiant.

Affiant avers that in taking his testimony he tried to obtain the services of one James B. Powell, of Union Springs, Alabama, he being a Democrat in politics and there being no Republican lawyers in his district; that he did retain said Powell, who agreed to appear for him, but that when the examination of his witnesses had commenced before H. H. Smith, as aforesaid, the said Powell announced that he appeared for contestee; this notwithstanding that contestee had other attorneys, as in fact all the attorneys present wherever affiant attempted to take testimony rendered services for said contestee; and affiant avers that the said Oates induced the said Powell to refuse to appear for him wholly for the purpose of embarrassing and obstructing the said affiant in the taking of his testimony. Affiant was therefore compelled to take his testimony without the assistance of a lawyer.

Affiant submits that the time, forty days, allowed him in which to take his testimony was wholly inadequate, and that the time was not fixed in contemplation that cases of the character of his could or would exist. In this forty days are included about six Sundays, leaving affiant only thirty-four working days. His charges of fraudulent miscounting, or failing to count his votes, or counting votes cast for him for contestee, or the fraudulent refusing to count his votes by the county supervisors of election, involve the necessity of examining the witnesses in 24 precincts of this district, to wit, 4 in Lee County, 4 in Russell, 6 in Bullock, 5 in Henry, and5 in Barbour;

that the said district is very large, having an area of 5,740 square miles, being 127 miles in length, and means of communication between its different parts very circuitous, it being supplied with no direct railway connections. For example, to go from Abbeville, in Henry County, to Opelika, in Lee County, would require about 48 hours by the most expeditious mode of travel.

In all of these precincts, except in the three as stated in his notice of contest, the county supervisors of election had appointed only Democratic managers of the election, with the fraudulent intent of preventing a fair election, as affiant upon oath states, so that the party to which affiant belongs had no representative at the several voting precincts throughout his district to see that the elections in the several precincts were honestly and lawfully conducted. Affiant avers, of his own knowledge, that a member of the Republican party, fully competent, could be found in every precinct of his district to act as a manager of election. Therefore affiant is compelled to prove his allegations in his notice of contest by examining persons who took down, as far as practicable, the names of the persons who voted for him at the several precincts, and prove the frauds by this character of evidence, and in other cases where no such account was kept to examine each voter separately and prove by his own testimony for whom he cast his ballot; that under the old law of Alabama, in existence, he believes, for a great number of years, each ballot was required to be numbered with the number of the voter's name on the poll-list, and thus, by producing in evidence the ballots on the examination of the voter the fraud could be proven, and it would be only necessary to examine the witnesses where ballots had been changed. But to prevent the detection of fraud and to facilitate the same the legislature of Alabama recently repealed the law providing for the numbering of the ballots, so that now it is, as aforesaid, necessary, in order to prove the said frauds, to examine each witness who voted the Republican ticket.

It would therefore be necessary for affiant, in order to prove the allegations contained in his notice of contest, to examine at least one thousand witnesses, in addition to those already examined, these witnesses being in localities in all parts of his district.

Affiant submits that the testimony taken in his behalf in Lee County fully sustains the allegations in his notice of contest, as to the precincts in that county and generally as to the character of the frauds in behalf of the contestee at the election and as alleged by him.

Contestee avers that since the Congressional and State election occurring on a day in November, 1874, and at which said election numerous acts of intimidation, consisting of threats, violence, and murder, were committed, and which said election resulted in placing the government of the State in the hands of persons elected by the Democratic party, nothing resembling a fair election has occurred in his district in any election where a Republican was a candidate for office; that this is generally known, admitted, and boasted of by members of the Democratic party.

That in counties such as Barbour, Lee, Russell, and Bullock, in his district, where the Republicans have majorities of thousands, it is utterly impossible for them to elect even a justice of the peace in any precinct.

They cast their ballots, but the ballots are not counted at all, or are counted for the opponent of the person voted for. Affiant states that if he is permitted time to investigate the last election, or if this committee will investigate the same, they will find that the election was a mere farce; that there was no desire or intention on the part of the officers designated by the law to conduct or supervise said election that it should be fairly conducted.

Affiant is corroborated in these allegations by evidence of the highest character, to which he now refers, to wit, the report of a select committee of the House of Representatives on affairs in Alabama, made to the second session of the Forty-third Congress on February 23, 1875, by Mr. Coburn, chairman of said committee, with the evidence accompanying the same, and the report of the subcommittee of Privileges and Elections of the Senate of the United States, by Mr. Cameron, chairman, made to the second session of the Forty-third Congress on March 3, 1877, with the evidence accompanying the same. In this report the committee say:

Being clothed with the power to make, alter, or amend the laws of the State, all further resort to any form of physical violence on the part of the Democrats, in order to control the ballot-boxes, became unnecessary. A different plan presented itself which was more acceptable, because more certain of success, and more secret in its operations.

"Fraud, under color of the forms of law, was substituted for violence, and the laws of the State regulating and controlling the registration of voters and the conduct of elections were so framed as to offer every encouragement to those to whom was committed the fraudulent changing of votes after they had been deposited, or the making of false and fraudulent election returns, or the failure to open the polls and conduct the elections in large Republican precincts, or the using of the method of obstruction and embarrassment with which the laws had provided them to exclude from the bal

lot box the ballots of qualified electors. The committee find that throughout the State, as far as their investigation extended, and without exception in one or the other forms which the laws permitted, the Republicans were either deprived of the opportunity to cast their ballots, or the ballots, when cast, were changed or destroyed whenever and wherever it was deemed necessary to serve the purposes of the Democratic party. To designate the elections of August and November, 1876, in Alabama, as elections by the people, in so far as the purpose of an election is to indicate the choice or will of the people, would be an abuse of the term."

And affiant avers that the condition of affairs in his district, as above described, has continued to be the same as reported by the said several committees, and was the same at the election of November 2, 1880; and that this an investigation of the said pretended election of contestee will fully show.

A. A. MABSON.

Sworn to and subscribed before me this third day of February, A. D. 1882.
A. S. TAYLOR,
Notary Public.

To the honorable the House of Representatives of the United States:

As supplemental to the affidavit heretofore by him made and now before your Committee on Elections, in the case of Mabson vs. Oates, affiant states that he used due diligence in taking testimony during the time allowed him by law; that he commenced taking testimony only a few days-to wit, seven days after his time for taking testimony began to run, and long before his testimony in Lee County was taken: that his earlier testimony is not before you because of the detention thereof by H. H. Smith, as stated in his former affidavit; that the counsel for contestee consumed the time of contestant in taking testimony by asking his witnesses needless and irrelevant questions, for the purpose of taking up his time, in many instances willfully consuming three or four hours in cross-examining his witnesses, when a few minutes were all that was actually necessary for any legitimate purposes of such examination; that crowds of white men, supporters of contestee, would be constantly at the places where his witnesses were being examined, and would by their boisterous conduct purposely embarrass and intimidate his witnesses, who were all colored men; that it is the custom of trade in Bullock County, in his district, for the merchants to give to the farmers credit for supplies furnished, but when the witnesses for contestant were at Union Springs, in Bullock County, for the purpose of testifying, many of these merchants refused to give credit to those whom they had formerly credited, because they were witnesses for contestant, and would refuse the same and tell them to return home and not be fooling about politics, and to go to contestant for money which they might need; and that contestant was greatly embarrassed by having to supply the necessities of so large a number of witnesses, as it was intended by the said merchants, by their refusals as aforesaid, that he should be. Affiant was obstructed in taking testimony in Henry County, in his district, first, by the statement of contestee made to him at Opelika, in Lee County, that some of the young men in Henry County, his nephews among them, had banded together for the purpose of driving him out of Henry County if he should go there to take his testimony, but that contestee discountenanced such proceedings and tried to dissuade them, but did not know whether he could control them or not.

Secondly. That J. T. Kitchen was present at the election at Columbia precinct, in said county, and could prove by his testimony that he saw the managers of election at said precinct, who were all Democrats, changing the ballots after they had been cast, by substituting for ballots actually cast for contestant fraudulent ballots for contestee, but that said Kitchen, as affiant believes and charges, to prevent his testifying for affiant, was arrested on a false charge, and confined in jail until after affiant's time for taking testimony had expired, when he was released and the prosecution abandoned. Affiant now states upon oath that he never at any time said to one John T. Ware, or to any one, that he was making this contest for the purpose of making money, nor did he ever state to any one that he knew he had been defeated in the election. On the contrary, contestant states that he is not induced by any hope or expectation of receiving money in making this contest, but that he prosecutes the same wholly from a desire to fulfill a duty which he owes to those who voted for him, and who were de prived of the lawful benefit and results of their ballots cast by fraudulent acts on the part of officers of the election in failing to count and return the ballots cast for hi m, and in substituting therefor ballots cast for contestee. Affiant states that he es has always believed since the election, and now believes, and so avers, that he was tactually elected and contestee defeated by the lawful votes cast for him on the lulay of election.

ge

Affiant states if he were allowed sufficient further time in which to takor testimony, he could prove to the best of his knowledge and belief the following facrvits: That in four precincts in Lee County, in his district, three hundred and teris votes which were cast for him were fraudulently counted for contestee; that is, in prrbcecinct

No. 4, 71 votes; precinct No. 5, 100 votes; precinct No. 6, 50 votes; and precinct No. 9, 75 votes.

That in four precincts of Russell County six hundred and seventy ballots cast for him were fraudulently counted for contestee, to wit: Precinct No. 3, 100; precinct No. 5, 100; precinct No. 7, 240; and precinct No. 10, 230 votes.

That in four precincts of Henry County, two hundred and ninety votes which were cast for him were fraudulently counted for contestee, to wit: In precinct No. 1, 50 ballots; precinct No. 4, 150 ballots; precinct No. 12, 50 ballots; and precinct No. 13, 40 ballots.

That in five precincts of Barbour County nine hundred and forty-two ballots which were cast for him were fraudulently counted for contestee, to wit: Precinct No. 1, 167 ballots; precinct No. 2, 200; box No. 1, precinct No. 4, 125; box No. 2, precinct No. 5, 350 ballots; and box No. 3, precinct No. 5, 100 ballots.

And affiant avers that in the elections in all of said election precincts the managers and returning officers were wholly and entirely members of the political party to which contestee belonged, opposed affiant's election, and favored the election of contestee. Affiant avers that in Bullock County eighteen hundred and eighty-seven votes were east for him, and four hundred and thirty-six for contestee, which the county board of canvassers refused to count, upon the return made by them, in estimating the result of the said election in said county, on the ground that the poll-lists accompanying the returns from the precincts were not signed-the same being not a lawful reason for their refusal to count and estimate these votes in ascertaining the result. Affiant avers that on election day more than eight hundred lawfully qualfied electors, desiring and intending to vote for him, were present at the polling place for the precinct commonly known as Seals Station precinct, in Russell County, but that the opening of the polls in said precinct was prevented by violence and intimidation on the part of the friends of contestee, who desired to prevent an election in said precinct, because of the large majority there for contestant. Affiant avers that 138 votes from Hilliardsville precinct, in Henry County, and 72 from Hicks' Shop, in said county, were unlawfully counted for contestee, no lawful or sufficient return being made thereof from which the county board of canvassers could estimate the same.

Affiant submits that he has proved the facts alleged in relation to precincts No. 9, 4, and 6 in Lee County, by his testimony already taken. The vote, as certified by the secretary of state, at said election was for contestee, 10,614; for contestant, 5,636; but the allegations aforesaid show that there should be added to contestant's vote and taken from contestee's in

That there should be added to contestant's vote the votes not counted by the county board of canvassers in Bullock County, 1,877, and to contestee's, 436.

That contestant is entitled to 800 votes from Seals Station precinct, as aforesaid. That contestee is not entitled to 215 votes counted for him in Henry County, as aforesaid.

This would make the actual result of the ballot cast in said election to be as follows:

Showing the true result to be a majority of votes for contestant of 1,869 votes which affiant verily believes to be substantially correct.

FEBRUARY 14, 1882.

A. A. MABSON.

Sworn and subscribed to before me this 14th day of February, 1882. [SEAL.]

THOS. J. MYERS,

Notary Public.

H. Mis. 35—2

JAMES Q. SMITH vs. CHARLES M. SHELLEY.

FOURTH CONGRESSIONAL DISTRICT OF ALABAMA.

Contestant charged fraud, ballot-box stuffing, and conspiracy on the part of the party friends of contestee, and the illegal rejection of returns.

Held, That returns rejected because signed by the mark (X) of the inspectors, the same should have been received and the vote counted.

Ballot rejected and not counted because deposited in a cigar-box, on account of the failure of the proper officers to provide the usual ballot-box, or blanks for returns, should be counted.

Where one who had been appointed an inspector of election refused to act, although present, and after the closing of the polls he appears in the room and claims and takes the ballot-box containing the ballots and puts it in a satchel, and such person being remonstrated with hands back another box containing different ballots which are counted, the returns from that precinct are corrected as the votes are proven to be by the evidence.

Where the inspectors of election failed to appear and open the polls, and there are no blanks or ballot-box provided, and the citizens then organize, and a list of the voters present is taken, and an expression of preference from each as to his choice for Representative in Congress, a return thereof is refused and not counted, because no polls were in fact opened and no ballots actually cast.

The House adopted the majority report, and contestant having died the seat was declared vacant.

JUNE 27, 1882.-Mr. W. G. THOMPSON, from the Committee on Elections, submitted the following

REPORT:

The Committee on Elections, to whom was referred the above-entitled contested election, have had the same under consideration, and submit the following report:

James Q. Smith and Charles M. Shelley were opposing candidates for a seat in the Forty-seventh Congress, from the fourth Congressional district of Alabama, at the November election held on the 2d day of November, 1880.

By the returns of said election, as certified to the secretary of said State, it appears that Mr. Shelley received of the votes 9,301, Mr. Smith received of the votes 6,650, showing Mr. Shelley's majority to be 2,651.

On the 3d day of December, 1880, Mr. Smith caused to be served upon Mr. Shelley a notice of his intention to contest, as the law provides, as shown by the certificate in record, page 26.

In this notice of contest it was alleged by contestant that fraud, ballot-box stuffing, and conspiracy between the partisan friends and sup porters of contestee had been resorted to, by means of which he was defrauded out of his election, and that as a matter of fact a large majority of the votes cast at said election were cast for contestant and that he was duly elected, and specifically charged that these frauds had been practiced in the several voting precints in the counties of Hale, Perry,