Q. Did or not the inspectors apparently acquiesce in the violent conduct of the voters around the polls ?—A. I heard nothing for or against it, more than one of the supervisors ordered the polls closed during the row.

Q. Did the inspectors pay any regard to the order of the supervisor?-A. None whatever that I could see.

This is the head and front of the offending on the part of the inspectors of the election, who by the laws of the State are intrusted with the management of the election themselves. They did not close the poll and stop the election at the command of a supervisor who had no such authority vested in him by act of Congress.

The next charge in the notice of contest is as follows:

That the inspectors acquiesced in and consented to scenes of lawlessness and disorder, and knowingly allowed persons to vote for you who were not qualified voters, and refused to receive the votes of those who offered to vote for me and were qualified electors, whereby the result of the election was affected.

Where is the evidence "that the inspectors acquiesced in and consented to scenes of violence?"

Rackley, on p. 1186, testifies as follows:

Q. Did the inspectors make any effort to quell the disturbance and disorder, and maintain peace and quiet about the polls?-A. None that I saw or heard.

Q. Would you not have seen it if they had done so?-A. I should think I could, as I was within 10 or 15 feet of the polls.

Q. Did or did not the inspectors apparently acquiesce in the violent conduct around the polls?-A. I heard nothing for or against it, more than one of the supervisors ordered the polls closed during the row.

Again, the deputy marshal, who, together with the supervisor, commenced the row (according to his own testimony, see Record, p. 1190), says, on page 1102:

Q. Did the inspectors make any efforts to suppress the violence and turbulence around the polls?-A. Not that I saw or heard, and I was near the polls all day.

We quote from the record the description of this lilliputian row, in which this Ajax deputy marshal was engaged according to his own testimony, on page 1190 of the Record. Here is the description he gives of the great row:

Q. How long did the row continue? And describe it.-A. Somewhere about 30 minutes. Just in the time of the row, M. O. Waldron was in the act of striking a negro when I got to him; I succeeded in stopping him. Just at that time A. S. Smith jerked up a club and started to B. E. Raulerson to strike him, and some one interfered. Just at that time B. Wesson was trying to get his pistol, when I got to him. I also told him that if he didn't stop fussing there that I should have to arrest him. Wylie Lee said that if I wouldn't arrest him that he would take him away; and that ended the row there at the polls. The cause of my making no arrest was that I considered it worth a man's life to do it.

Such is the character of the case made by contestant by ex parte testimony at Hamilton County poll No. 3.

The assault made upon this poll is so frivolous and flimsy that we feel convinced that to throw it out would be an arbitrary disfranchisement of a whole voting district without legal warrant or excuse. This poll should stand as returned.

DUVAL, PUTNAM, ST. JOHN'S, NASSAU COUNTY.

Foreign-born electors.

Section 3, article 14, of the constitution of Florida, reads as follows: At any election at which a citizen or subject of any foreign country shall offer to vote, under the provisions of this constitution, he shall present to the persons lawfully authorized to conduct and supervise such election a duly sealed and certified copy of his declaration of intention, otherwise he shall not be allowed to vote, and any naturalized

citizen offering to vote shall produce before said persons, lawfully authorized to conduct and supervise the election, the certificate of naturalization, or a duly sealed and certified copy thereof; otherwise he shall not be allowed to vote.

The contestant claims that "about seventy-five alien-born persons voted for contestee without complying with this provision of our constitution."

He contends that "the words of the negative provision of the section of the constitution quoted, prohibiting the reception of votes by alienborn persons, unless they produce their naturalization papers, is substantially and in effect the same as the negative words of the provisions requiring registration, which are: No person not duly registered according to law shall be allowed to vote.'"

He also says:

It has long been settled, and will not be controverted, that a vote cast by a person not registered according to law, is an illegal vote, even under a law containing no negative words.

It cannot be denied that the people have the right to fix the qualifications of electors, and to prescribe the evidence of such qualifications. In Florida they have done this in the organic law.

For the native-born the evidence of the qualification and right to vote is registration; for the alien-born the certificate of naturalization or declaration of intention in addition to registration.

Each class is prohibited by identical words in the constitution from voting without producing this evidence.

To hold that a vote by an unregistered citizen is illegal, and that a vote by an alien-born person without producing the evidence of naturalization, without which the law says he shall not be allowed to vote, is legal, would be glaringly inconsistent, and illogical. Both are illegal upon the same principle. The contestee does not contend that an alienborn person who is not naturalized, or has not declared his intention to become a citizen, is a legal voter. But he contends that if the inspectors of election did not require such a person to produce this evidence of a qualified voter he was not bound to, and his vote is legal.

This extract from the contestant's argument gives the issue fairly which is involved in this portion of the contest. He rests his case against these alleged foreign-born votes on the analogy which they bear to unregistered votes, and claims that they are illegal for the same reasons which justify the rejection of unregistered votes. Taking the argument of the contestant as a true statement of the case, what is the law applicable thereto ?

An authority immediately to the point, and from the State of Florida, and between the same parties as the present case, is found in the case of Finley vs. Bisbee in the Forty-fifth Congress, wherein the majority of the Committee on Elections held:

If a person votes at an election his vote is presumed under the law to be legal until the contrary be proven in a legal way, for the reasons, first, that the acts of an officer or officers of an election within the scope of their authority are presumed to be correct and honest until the contrary is made to appear, and therefore that they as such officers would not receive an illegal vote; second, that the presumption is always against the commission of a fraudulent or illegal act, and therefore that a man would not cast an illegal vote.

This case, which rules the one in hand, was affirmed by a large majority as the law by which Congress will be bound in such cases in the contest of Curtin vs. Yocum in the Forty-sixth Congress.

The report of Mr. Calkins, in Curtin vs. Yocum, holds:

It is the duty of the election officers to comply with this law. It is imperative on them, and if they fail they subject themselves to the penalties provided in sec. 12 of the registry law. But to allow a non-registered voter to vote without requiring him to comply with the law, if he is otherwise qualified, is quite a different question. If he refuses to comply on being requested, then it is clearly the duty of the officers to refuse his vote because he refuses to obey a reasonable regulation prescribed by the

The

legislature, and he hurts no one but himself. But if he is allowed to rote without being required to file the affidavits and is otherwise qualified his vote is not an illegal one. officers of the election have simply failed to take and preserve the evidence which the law requires of them, but the failure on their part to take and preserve this evidence does not reach the qualification of the voter.

The report further holds:

That the clause "no voter shall be deprived of the privilege of voting by reason of his name not being registered" protects all legal voters in the right of suffrage, and the inference to our mind is irresistible under this decision that he is not even prima facie an illegal voter because of non-registration (See McCrary, sec. 423.)

That case was also largely ruled by the decision of Judge Briggs, in the case of Gillin vs. Armstrong (Leg. Int., July 19, 1878), which holds: That unregistered voters having voted without making the affidavits, the law presumes that they are legal, and it cannot be permitted to show that they were not so legal.

The case of Curtin vs. Yocum, which is not reported yet, we quote fully on this point. It was tried on the sole issue that an unregistered rote was an illegal one. The present able chairman of the Election Committee (Mr. Calkins), who made the report of the minority in that case, which was adopted by the House, and thereby became the law of Congress on the subject, said in his closing argument:

All other grounds were abandoned; the majority report is bottomed upon that single proposition of law, that any person voting whose name does not appear on the registry list is an illegal voter.

This case showed that there were (1) between one and two thousand persons who voted at the election who were not registered; (2) that there were three hundred and eighty persons voted who were not registered and who were shown by affirmative testimony not to have made the proof required of non-registered voters to entitle them to vote; and (3) that there were ninety persons who voted for the contestee, more than his majority, who were not registered and made no proof required of non-registered voters. The issue was therefore plainly and fairly made. Mr. Calkins in his argument said:

I call the attention of the members of the House especially to the conclusion reached by Judge Briggs in construing this law. He says: "By accepting the vote," referring to the non-registered voter who presents himself at the polls without an affidavit, &c. "By accepting the vote without demanding the proof they deprive the voter of the opportunity of furnishing it." To construe the law as contended for by my friend from Pennsylvania (Mr. Beltzhoover) makes it a mere trap for the reason that the voter presumes, or he has a right to presume, that he is registered. He has lived in the precinct the time required by law; he has paid his tax; the assessor has been to his house; he knows his name ought to be on the registry list, and he goes up to the ballot-box with the ballot in his hand. They take his ballot and deposit it in the ballot-box, and afterward, when he cannot furnish the proof, it is contended his vote is an illegal one, while if the election officers had called his attention to it at the moment he could have supplied the evidence required and established his right to vote in the mode prescribed. But that evidence was not demanded. He voted knowing that he had a legal right to vote, but the legal evidence of his right was not required of him by the election officers. And applying the same doctrine as in Wheelock's case, "you cannot deprive the legal voter of the right to vote by reason of the failure of the officer to do his duty," and it seems to me that the position is unassailable.

The next position I assume is that a vote having been deposited in the ballot-box unchallenged is presumed to be a legal vote until the contrary is shown; and I call attention to the case of Perry vs. Ryan, 68 Illinois, 172. Where a person votes at an election without having been registered and without any proof of right, if it does not appear he was challenged or any objection made to his vote, the presumption must be that he was a legal voter and was known to the judges of election." In 83 Illinois, 498, where a registry law very similar to the law now under consideration was construed by that court, it was held, "The presumption of the legality of a vote in no way depends upon the omission to challenge or to object to it, or any presumed knowledge of the judges of election, but it arises from the fact of its having been deposited in

the bollot-box. When once deposited it will be presumed to be a legal vote until there is evidence to the contrary."

The same doctrine was held in the case of Finley vs. Bisbee in this House in the last Congress. It is said by the chairman of my committee that the provisions of the law of Florida and the law of Pennsylvania are different, and therefore a different rule prevails. If they are materially different, Mr. Speaker, I admit it, but they are not materially different, because in the Bisbee-Finley case the committee held one provision of the constitution, which was mandatory in its language, to be directory merely. The language was that certain persons offering to vote shall "present to the officers certain naturalization papers at the time they offered to vote. That was a part of the constitution of Florida, and yet the Committee on Elections in construing it said the clause was not mandatory, although it was a part of the organic law of Florida, but was directory merely. Let me quote a sentence from that report, which I believe was written by Judge Cobb. He says: "It is the settled law of election cases that where persons vote without challenge it will be presumed that they were entitled to vote, and that the sworn officers of the election who received their votes performed their duty properly and honestly, and the burden of proof to show the contrary devolves upon the party denying their right." Mark, Mr. Speaker, "the settled law of all election cases" is the language, and this House solemnly sitting as a court adjudged that to be the law. And yet in this case the majority of the committee say that every vote that went into the ballot-boxes unchallenged in Pennsylvania, which were unregistered, are presumed to be illegal. I admit that the courts of Wisconsin, in two cases, have held their law mandatory in construing a similar provision. I also take occasion to state that Judge Dixon, one of the ablest judges that ever sat on the supreme bench of that or any other State, apologizes for having so held.

Mr. Stevenson, who also sustained the minority report in the Curtin vs. Yocum case, and argued it at length, rested the case on "the pivotal point" of the status of an unregistered voter, who has been permitted to cast his ballot without making the proof required by law. He says: The law presumes the officers conducting the election to have discharged their duty; presumes they have received the votes of none other than legally qualified voters. This presumption can only be rebutted by evidence.

He then goes on to cite very fully the decision made by Congress in the Finley vs. Bisbee case in the Forty-fifth Congress, and gives the strongest extracts from the report of the committee. He also cites Wheelock's case, 1 Norris, 297, and the case of Gillon vs. Armstrong, and resting his case on these authorities, concludes:

I think I have shown, Mr. Speaker, by recognized authorities, first, that the elector cannot be deprived of the right of suffrage by the ignorance or misfeasance of the election official; second, that under the constitution of Pennsylvania he cannot be debarred from voting by reason of non-registration; third, that the officers conducting the election are presumed to have done their duty, and received only legal votes; fourth, the burden of proof is on the party assailing their legality.

TESTIMONY WHICH SHOULD BE EXCLUDED.

The record shows that all the evidence taken in the counties mentioned below by contestant was taken as rebutting testimony, after the expiration of the time allowed by law for taking original testimony; that neither contestant nor contestee had taken any testimony in any of these counties during the forty days allowed to each, and that consequently there was nothing to rebut; that the contestant disregarded the act of Congress, which says that "the contestant shall take testimony during the first forty days, the returned member during the succeeding forty days, and the contestant may take testimony in rebuttal only during the remaining ten days of said period" (of ninety days).

The following are the counties where contestant took such original testimony in the ten days allowed him for rebutting testimony only, and where contestee had taken no testimony; and where there could not therefore possibly have been anything to rebut, viz: Brevard, Brad

ford, Columbia, Hamilton, Putnam, Orange, St. John's, Suwanee, and Volusia counties.

The record shows that no evidence-in-chief was taken in or concerning the election in any of these counties, and none whatever by the contestee during his forty days, and that all of contestant's testimony therein was taken after contestee's time had elapsed, and after the contestant's time for rebuttal had commenced. See Vallandigham vs. Campbell (1st Bartlett, p. 223); Brooks vs. Davis (1st Bartlett, 241; McCrary on Elec., secs. 347, 348); Bromberg vs. Haralson (first session Forty-fourth Congress, vol. 5, Index to Miscellaneous Documents Digest of Election Cases, p. 364.)

It is claimed that all this testimony should be rejected.

Against all the evidence taken by the contestant in the above-mentioned counties the unanimous report of the Committee on Elections in case of Bromberg vs. Haralson, first session Forty-fourth Congress, is cited. It appeared in that case that in Wilcox County the contestant, Bromberg, the Democratic candidate, undertook to violate the election law, just as the contestant in this case has done, and that his testimony so taken was rejected. (See Bromberg vs. Haralson, supra.)

All the testimony in the above counties is ex parte in behalf of contestant. The notices served by contestant on contestee for taking this testimony in all those counties informed contestee that contestant would proceed to take testimony in rebuttal. The contestee, knowing that no original testimony had been taken in any of these counties, and that there could be nothing to rebut, declined to attend such examinations of witnesses. The contestant, instead of taking rebutting testimony, proceeded to take original testimony.

The contestant also contends that his leading attorney was sick, and that he (contestant) was absent in Washington attending to his duties as a member of Congress, and that this is a sufficient excuse for not taking testimony in the time and manner allowed by law.

The record shows that the answer of the returned member was served on the 3d of February, 1881, and upon that day contestant's forty days for taking testimony commenced. The contestant contends that on account of the trouble which occurred in Madison County on the 8th of February, his leading attorney, H. Jenkins, became sick. The following extract from the certificate of the officer before whom his evidence was taken, p. 885 of the Record, shows that on the 18th of February his attorney, Jenkins, was attending to his case. (See Record, 885, as follows:)

Contested election, Forty-seventh Congress of the United States. HORATIO BISBEE, JR.,

V8.

JESSE J. FINLEY.

In pursuance of notice of contestant, in the above-entitled cause, to contestee, of taking testimony, a copy of which notice is hereunto attached, filed by contestant, I have this day begun the examination of witnesses on behalf of contestant, H. Bisbee, jr., at my office in Jacksonville, Duvall County, Florida, this 18th day of February, 1881; H. Jenkins, jr., attorney for contestant, and S. J. Finley, attorney for contestee, being present.

J. C. MARCY, JR.,
Notary Public.

On page 67 of the Record the following certificate of Watson Porter, the officer who took contestant's testimony in Alachua County, shows that contestant appeared there by another attorney, and that he did not commence taking his testimony there until the 7th of March.

H. Mis. 35—16