by the precinct managers themselves, immediately after the close of the balloting, and in public; and that the precinct managers should further make and sign, and within three days deliver to the commissioners of election, a written statement of the result of the election in their precinct. As the ballot-boxes still remain for three days in the hands of the precinct managers, it is obvious that this amendment would be without effect, if the county board of canvassers were themselves still to count the ballots found in the boxes when they convened one week after the election, and to make up their statement from the contents of the boxes at that time. Hence, the county board of canvassers held, very naturally and, we think, correctly, that under the law as amended the counting of the ballots in public by the precinct managers was intended to be final, and that the county canvassers could canvass only the returns sent up to them by the precinct managers. And they did canvass the returns of every precinct which were sent up to them; but no returns being sent up from the two precincts in Colleton and the five precincts in Edgefield mentioned, they had nothing which they could canvass from those precincts.

At Jacksonborough the ballot-box became so filled with ballots that at one o'clock p. m. it could hold no more; whereupon it was agreed, both by the managers of the election and the Republican supervisor, that, under the circumstances, they had no authority to open the box and count the ballot. (See Record, p. 346.) This accounts for the absence of returns from this precinct.

Some attempt was made to charge the adherents of contestee with responsibility for the failure to send a box to this precinct large enough to hold all the ballots which might be offered. The county commissioners of election, however, are the officers charged with the duty of providing the box for each election precinct. These commissioners consisted of two Democrats and one Republican. The latter admits that he was present when the boxes were selected for the various precincts in Colleton County; that they saw the box selected for Jacksonborough, and does not pretend that he objected to its size, or suggested the selection of a larger one. (See Record, pp. 378, 379.) Further, the record shows that the vote at this precinct at former elections had rarely exceeded 300, while at this election the box received 618 ballots before it became full.

Whether the managers might or might not have lawfully provided another box, and continued to receive the ballots, it is perhaps not necessary here to inquire. The law provided for one box at each election precinct, and the testimony shows that the polls were closed when the box became full only after conference and full agreement between the representatives of both parties as to the propriety of that course. (See Record, p. 346.)

As to Horse Pen, the other precinct in Colleton County, a return was sent up by the managers of the election, which, evidently by oversight, however, omitted the vote for Representative. At three other precincts in this county, viz, Snider's Cross-Roads, Ridgeville, and George's Station, the precinct returns, through similar oversight, omitted the vote for Presidential electors. But, as conclusively demonstrating the absence of fraud or corrupt motives, either upon the part of the precinct managers in making their omissions or upon the part of the county board of canvassers in adopting the above-mentioned construction of the election law as amended, limiting their powers to the canvass of the precinct returns, it needs only to be remarked that every one of these precincts, as a fact, undisputed, and conceded in the record, gave Democratic

majorities. (See Record, at pp. 330, 386, as to Horse Pen; p. 386, as to Suider's Cross-Roads; at p. 487, as to Ridgeville; and at pp. 324 and 327, as to George's Station.)

The vote of the five precincts in Edgefield County above referred to was not canvassed for the same reason, namely, the fact that no returns were sent up by the precinct managers, and there was, therefore, nothing which the county board of canvassers could canvass. And as to these precincts not only is it not shown, or claimed even, in the testimony that any one of them gave a majority for contestant, but it is neither claimed nor shown that a single vote was cast for him at four of them, nor that there was any violence, fraud, or intimidation practiced at them, either. In other words, there is absolutely neither proof nor claim, in the record, that contestant was not a gainer as to each of these five precincts, as he unquestionably was as to Horse Pen precinct, in Colleton County, by the omission of the precinct managers to send up returns of the votes cast at them for Representative in Congress.

It is to be added that in each of these counties, one of the three members of the county board of canvassers was a Republican, and that in each of them the Republican and Democratic members united in signing and certifying to the correctness of the statement of the result of the election in such county; and one of them, the Republican member of the board of canvassers for Edgefield County, testifies in the Record, at page 210, that he concurred in the construction of the law that the board could not canvass the vote of precincts from which no returns had been sent up. As to the Republican member for Colleton County, see his testimony at page 388 of the Record.

Our colleagues, the majority of the second subcommittee, will find themselves to have been wholly misled as to the facts in their statement at page 3 of their report, that these boards "assumed to exercise judicial powers in throwing out entire boxes, and in not counting the vtoe polled for Congressman at others, and without any pretense of cause." They did not throw out a single box, nor did they fail to canvass the vote for Congressman of any precinct from which the managers sent up any return to be canvassed.

III. The contestant's third charge is that from the three counties of Barnwell, Colleton, and Edgefield, the returns and poll-list were not forwarded to the governor and secretary of state by the chairmen of the boards of county canvassers of those counties, as directed by law; and that this omission upon the part of the chairmen, whether originating in fraud or in ignorant neglect of legal duty, destroyed the reliability of the official statements by those boards of the result of the election in those counties, from which statements the board of State canvassers made up their statement of the result of the election in the fifth Congressional district.

Strictly speaking, there is no competent evidence that there was any such omission as charged. As a matter of fact, however, it appears that the election officers in some counties of the State, having construed the requirements to forward the returns and poll-list "to the governor and secretary of state," as imposing the duty of sending one set of those papers to the governor and a duplicate set to the secretary of state, the latter officer, just prior to the election, issued a circular to the effect that it was not necessary to send poll-lists to the secretary of state which instruction, it would seem, was understood by the chairmen of the boards of canvassers in the three counties named as dispensing with the necessity of sending up such papers at all.

If it be conceded, however, that these papers were not sent up from

the three counties in question, as directed by law, and even if it were held-though there is no shadow of testimony to that effect-that the omission was willful, there are two propositions which, to the undersigned, appear to be too clear to admit of an intelligent difference of opinion as to them, viz: (a) That such omission cannot be held to have the effect of invalidating the reliability of the official statements of the result of the election made by the county boards of canvassers, as contended by the contestant; and, (b) That such omission could not possibly have in any manner affected the rights of the contestant, for the reason that the State board of canvassers could not have considered those papers had they been sent up as directed.

(a) By reference to section 4 of the amendment to the election law of South Carolina, of March 17, 1872, quoted above, it will be seen that the duty of forwarding the papers in question is imposed, not upon the county board of canvassers, but, after its final adjournment, upon the individual who had been its chairman. Upon what possible principle can it be said that any omission of duty, whether fraudulent or merely negligent, upon the part of such individual, after the board of which he was chairman has finally adjourned and gone out of existence, shall destroy, or in any manner invalidate the reliability or legal effect of the concurrent, unanimous, official act of the entire board, Republican and Democratic members alike?

(b) The papers in question, it will be further observed, are directed to be forwarded, not to the State board of canvassers, but to the gov ernor and secretary of state. The governor is not even a member of the State board; and, although the secretary of state is, yet not only is there no direction that the papers in question shall be submitted to, or considered by, that board, but, as will be seen by reference to the law prescribing the duties of the State board, quoted above, they are expressly and specifically required to make up their statement "upon the certified copies of the statements made by the board of county canvassers," and upon those statements it is enacted that they shall "proceed to determine and declare what persons have been, by the greatest number of votes, duly elected to such offices," &c.

Upon these grounds, therefore, we hold it to be clear, beyond the possibility of an intelligent difference of opinion, that the omission of the three individuals who had served as chairmen of the boards of canvassers in the three counties of Edgefield, Colleton, and Barnwell to send the returns and poll lists from those counties, after the adjournment of their respective boards, to the governor and secretary of state, is not even an element to be considered in this case. It has absolutely no possible bearing, either one way or the other, upon the rights of either of the parties to this contest. The sending of them up could not have benefited either, nor can the omission to do so justly injure either.

IV. The fourth and remaining charge is, that throughout all the counties of the fifth Congressional district of South Carolina, except the county of Beaufort, violence and intimidation were resorted to by the friends of the contestee to such an extent as to prevent large numbers of contestant's adherents from casting their votes for him. And the seven hundred closely printed pages of the record are mainly filled with the testimony of witnesses produced to prove and disprove this charge.

In the first place, it is to be observed that while, if proved, this charge ought to unseat the contestee, it can have no tendency to seat the contestant. No principle in the law of elections can be regarded as better

settled than that no candidate can be held to have been elected to office by the votes which, whatever the cause, were not in fact cast for him. In the second place, without being understood as casting any aspersion or reflections upon the report of our colleagues, the majority of the subcommittee charged with the consideration of this case, it is nevertheless our duty to remark that if issues of fact as to the history and conduct of an election at each of the precincts in five entire counties are to be determined by setting forth and considering only such parts of the testimony of the witnesses of one of the parties as make most strongly for him, excluding wholly the testimony adduced upon the other side, and even ignoring such modifications and retractions as have been made upon cross-examination by the very witnesses themselves whose testimony is quoted, as upon the most superficial examination will be found to have been done in the preparation of the majority report, then the so-called adjudication of contested-election cases will indeed have become a mockery.

For the purpose of illustration, again disclaiming any reflection upon our colleagues who have made that report, we would cite the case of Low Town Mills, in Aiken County. The majority report quotes from the depositions of contestant's witnesses, Spells and Washington, so much of their testimony as represents two hundred Democrats, in red shirts, as riding up to the polls, firing into the Republican voters, and driving about one hundred of them into a swamp; but wholly ignores the fact that on cross-examination, at page 133 of the Record, Washington reduces the two hundred Democrats in red shirts to two, and at page 134 admits there was not a swamp within four or five miles of the place. It also wholly omits to notice that the testimony of both these witnesses was answered and refuted in every particular by three intelligent and reputable gentlemen, at pp. 258 to 262 of the Record; that the character of Washington for truth and veracity was successfully impeached at pp. 258, 260, and 261-22, and no attempt to defend it made by contestant in rebuttal; and that not a single man who was beaten, shot at, run into a swamp, who did not vote, was threatened, interfered with, intimidated, or in any other manner maltreated, was produced, or the failure to produce in any manner accounted for.

Where it is alleged that a large number of persons have been deterred from voting by violence and intimidation, the testimony of those persons, or some of them, should be produced. The opinions and impressions of others are not sufficient. (McCrary, p. 327, sec. 431.)

As another illustration, the neighboring precinct of Silverton may be taken. So much of the testimony of D. Bing, contestant's only witness as to this precinct, as, taken alone, would be understood as indicating that the whites drove the blacks from the polls at their precinct, and that the witness could not vote there, will be found inserted in the majority report at page 29; but the admissions of this same witness, at pp. 131-2 of the Record, that he merely rode by Silverton without stopping, and that he saw only one colored man there, and that one a Democrat, is wholly omitted, as is also the fact that no man who was intimidated, drawn away from, or prevented from voting at this precinct, or in any other manner interfered with, is either produced or named. And yet, at page 33 of the report, it will be found that the entire vote of this precinct for the contestee is thrown out.

So, at pp. 30 and 31 of the majority report, so much of the testimony of contestant's witnesses is inserted as would tend to show, if taken alone, that the Democrats drove the Republicans from the polls at Creed's Store, in the same county, and forced the Republican supervisor to leave; but

it omits to say that this testimony is circumstantially refuted at pp. 267-270, with no attempt upon the part of the contestant to substantiate it in rebuttal, as also that the very witnesses on behalf of contestant, whose testimony is quoted in the report admitted on cross-examination, at pp. 74 and 183 of the Record, that all the colored men were allowed to vote freely as they desired at this poll except one, who was challenged, and who, as shown at pp. 267 and 269, was an idiot. And yet, at p. 33 of the report, the majority for contestee at this precinct is likewise thrown out.

So as to Windsor precinct, in the same county, the majority report quotes so much of the testimony for contestant as would tend to show that the Republican ticket distributer was driven away from the polls; but it wholly overlooks the facts that, at pages 307-'8 of the Record, it is proven by the testimony of the trial-justice for that community, unattacked in rebuttal, that the ticket distributer got into an altercation with a stranger who was not even a resident of the State, and left in a passion, taking the Republican tickets with him, although urged to leave them, after which the trial-justice offered to write tickets for all who desired to vote. And yet, upon this uncontradicted state of facts, contestee's majority at this precinct also is thrown out, at p. 33 of the report.

Again, as to Page and Hankerson's Store, in Aiken County, the majority report quotes the testimony of one Green, tending to prove that he was not allowed to vote; that there was shooting at the polls, and that he was whipped for taking down the names of voters; but it ignores entirely the fact that the alleged whipping is not claimed to have taken place until after Green had left the precinct, and that the Republican supervisor, contestant's only other witness as to this poll, testifies, at page 190 of the Record, that every man who offered to vote was allowed to do so freely; as, also, that the uncontradicted testimony of contestee's witnesses, at pp. 273-26 and 278-'9 of the Record, shows that the only shooting at or near the polls that day was between two Democrats, who fired at each other in a purely personal altercation; that no one was deterred from voting by the occurrence, over one hundred Republican votes being cast just after it; that no violence was offered Green at the polls, but that his alleged whipping was reported to have taken place after he had gone away, at some point on the road to Aiken Court-House, and that the Republican supervisor signed the Democratic supervisor's report, and declared it had been the fairest election he ever saw.

It is obviously impossible, within the compass of a report like this, to review the testimony as to each of the various precincts in this and the four other counties against which this charge of violence and intimidation is made. The foregoing will be found to be only a fair specimen of the methods of consideration which have led to the conclusions embodied in the majority report of the subcommittee. In the brief filed in behalf of the contestee will be found a succinct but full summary of the testimony on both sides as to each precinct in each of the counties, with a reference to the pages of the Record at which all the depositions on either side relating to each precinct are contained; and to this summary we would urgently refer the members of this committee who may desire to look at both sides of the question, or to the whole of contestant's own side, as to any particular precinct.

There are two precincts, however, viz, Edgefield and Aiken CourtHouses, as to which charges of violence and intimidation are made so strenuously, and the conclusions of the majority of the subcommittee