office, or of any crime punishable by law with imprisonment in the penitentiary, larceny or bribery. So help me God.

And in addition to such oath, if the person 80 challenged is not personally known to one of the inspectors to have the qualifications required by law, then one of them shall require such person, before he shall be allowed to vote, to prove his identity and residence in the State, county, and precinct or ward in which he offers to vote, by the oath of some elector personally known to some one of such inspectors to be a qualified elector, which oath shall be administered by one of the inspectors, and be in the following form:

STATE OF ALABAMA,

I,

County:

do solemnly swear (or affirm, as the case may be) that I have known (here insert the name of the person offering to vote) for the last twelve months preceding this election, and that he has been a resident of this State for said time, three months in this county, and that he has actually resided in this precinct (or ward) for the last thirty days, and I believe he is twenty-one years of age or upwards, and that he has not voted before on this day at any general or special election. So help me God.

And upon such oath being duly taken and subscribed, the ballot of the person offering to vote must be received and deposited as other ballots of qualified electors. And it shall be the duty of the inspectors to file all the oaths so taken and subscribed, and when the election is closed, such inspectors shall forward them, in a sealed package, to the judge of probate, who shall lay them before the next grand jury sitting for said county.

Contestant contends that a non-registered elector is not disqualified under the laws of Alabama. His argument on this point is inserted:

Constitution provides: "The general assembly may, when necessary, provide by law for the registration of electors throughout the State, or in any incorporated city or town thereof, and when it is so provided no person shall vote at any election unless he shall have registered as required by law." What is meant by the clause, "when it is so provided?" The word "so" qualifies and gives meaning to the clause. It means manner or extent. It is equivalent to saying that when the law shall provide in that manner, or to that extent. That is, when the law shall require persons to register as a necessary prerequisite before voting, then no person shall vote until he shall have registered, as required by law. Is there any law of the State of Alabama which requires an elector to register before he can vote, or authorizes the rejection of his vote after it is cast because he has not registered? The statute regulating the qualification of electors is $224, Code of Alabama [1876], is as follows: "Every male citizen of the United States, and every male person of foreign birth who has been naturalized, or who may have legally declared his intention of becoming a citizen of the United States, before he offers to vote, who is 21 years old or upwards, who shall have resided in this State 1 year, 3 months in the county, and 30 days in the precinct or ward, next immediately preceding the election at which he offers to vote, is, unless within the disabilities imposed by the provisions of this chapter, a qualified elector, and may vote in the precinct or ward of his actual residence, and not elsewhere, for all officers elected by the people." Who are the persons disqualified by the provisions of this chapter "Those who have been convicted of treason, embezzlement of public funds, malfeasance in office, larceny, bribery, or other crime punishable by imprisonment in the penitentiary, and idiots or lunatics, shall not be permitted to vote in this State at any election by the people." These are the only persons prohibited from voting. They are not prohibited because they have failed to register, but because they have been convicted of specified crimes, or are idiots, or lunatics; all other persons are legal voters who possess the qualifications prescribed in § 224. What are these qualifications! The elector must be a citizen of the United States, or have declared his intention to become a citizen of the United States, must be 21 years old, must have resided one year in the State, three months in the county, and thirty days in the precinct, or ward. These are the only qualifications-citizenship, residence, and age. Not a word is said about registration. If the elector has all the qualifications mentioned in the statute he is a legal voter, and there is no law to reject his ballot because he is not registered.

Section 278 requires persons who are challenged to take an oath, which is herein set out. The elector is required to swear to age, residence, and that he has not voted at any other precinct on that day, and in addition to such oath, if the person challenged is not personally known to have the qualifications required by law, he must prove his identity and residence in the State, county, precinct, or ward by the oath of some elector personally known to one of the inspectors, to be a qualified elector. He is required to prove every fact but registration. Why is he not required to prove registration? Because registration is not a necessary qualification of a legal elector.

What is the object of registration? It is to furnish evidence to the inspectors of who are legal voters. It is not conclusive, nor the only evidence. He may be challenged, although his name may be on the registration list, and he must then prove his qualifications by his own oath, and if he is not known to one of the inspectors to be a qualified elector, then he must prove his qualification by some elector known to the inspectors. If his name is not on the registration list, and he is challenged, he can prove his qualification in the same manner. When this proof is tendered, the inspectors have no discretion, but are compelled to receive his ballot, and put it in the box. The conclusion is that registration has not, in Alabama, been made a necessary qualification to vote.

There seems to be no decision of the State courts on the point raised, and the question becomes immaterial, unless the necessary basis of facts is first established. I am inclined, however, to the opinion that, under the constitution and the statutes passed thereunder (both being in harmony), that registration was designed as a reasonable regulation, although not prescribed as a qualification.

The question is not free from doubt, but considering the object and purposes subserved by a system of registration, I am inclined to so hold. It is quite doubtful whether the law of Alabama renders void a vote of a non-registered elector when once cast and received. But for the purposes of the present case, I may safely assume that registration was intended as a prerequisite, and so regard it.

Analogous questions were discussed in the case of Finley vs. Bisbee in the Forty-sixth Congress, and in Curtin vs. Yocum in the Forty-sixth Congress. They furnish, however, no substantial authority beyond the general doctrine discussed, as the constitution and statutes of those States differ materially from those of Alabama.

While, for the purposes of this case, I assume that registration is a prerequisite in Alabama as a reasonable regulation, I find that the proof does not sustain the charge made by the contestee.

The number of non-registered votes seems quite large under contestee's allegations. And if the law of Alabama is as claimed, it seems quite strange that, in a hotly contested election such as this was, and when the polls were managed and attended by vigilant officers and challengers, with a copy of the registration lists before them, about onethird of the whole number of electors in the precincts referred to were not registered.

The following circulars will show how the canvass was conducted. It appears that the Democratic party had in most of the precincts two at least of the three inspectors, and in some cases all of them, besides the other officers. It must be presumed that the managers and challengers knew and could identify easily most, if not all, the voters in the precincts. I give the printed document in full, as bearing upon this issue and affecting probabilities:

EXHIBIT D.

The following recommendations are made to the respective Hancock clubs in the 8th Congressional district of Alabama. Each club can judge which of the recommendations are adapted to their locality, and will, of course, only adopt measures as, in their judgment, seems to them expedient. A prompt and vigorous compliance with the plans they adopt is earnestly urged.

THE WHITE VOTE.

1. Make a list of white voters in each precinct not on the roll of its club.

2. Appoint a committee of one member to wait on each of these and respectfully and cordially invite him to join us. The committee to report at the next meeting of the club.

3. If any one fails to respond to this invitation, send a committee of two other members most likely to influence him, who will urge him by every consideration that can be presented not by lethargy or inaction to desert his kindred and country in this effort of deliverance, and in some cases to tell him that his decision will, in the opinion of many of his friends and neighbors, determine whether we regard him as a friend or foe to our party.

With some persons such extreme expressions would not be advisable, as many gentlemen who do not care to have their names enrolled in clubs are our earnest friends.

THE BLACK VOTE.

1. Make at once a complete list of the qualified negro voters in your precinct, in which shall be set down:

First. The name and address of each voter.

Second. With whom he works, and whether as a hired hand or tenant.

Third. What merchant or other person advances for him.

2. It is deemed preferable that this census be made by regularly appointed census takers or committees, and that the negro voter should know that he is thus enrolled by the club.

Returns to the central organization of the county.

3. As soon as these lists are completed, each club will promptly forward a copy to the county chairman, to the end that all may be collated and printed.

A copy of the county vote thus registered should be in the hands of our friends at each voting precinct on the day of the election.

4. Make a separate list of those members of the club who think they have no influence with the negro voters and detail each one to look after one or more lukewarm or infirm white men in the precinct, and see that they vote.

5. There are a number of negroes who will not vote with us, but who will promise to stay away from the polls.

To look after these and see that they adhere to their promise, enroll young white men of the precinct under the voting age, before the day of the election, and assign each one to his negro.

A legitimate and peaceful election.

The foregoing suggestions contemplate winning the election by fairly placing in the boxes the most votes legitimately obtained. Systematic and energetic exertion will do it. Each member of the Hancock clubs must have his part in the work assigned him and the club hold him to his full performance.

Rioting before or at the polls, or race collision brought about by the whites, are deemed almost insane folly. We may carry the election by these means, but we would not reap the beneficial results.

On the other hand, the colored men who go with us must be protected there and at all times. And while it is not expected that insolent aggression be submitted to by the white man, every consideration of patriotism and every hope of success in the effort we are making to establish the constitutional free government of our fathers should lead our friends to avoid every occasion of disturbance; and if they unfortunately arise, then be sure they are in the right.

If we attend the meetings of the Radical party hereafter, each club in whose territory a meeting shall be expected shall promptly inform the county chairman, to the end that he may order a proper attendance from the clubs.

It is of the first importance that the county chairman or central organization be kept thoroughly informed of the progress of the canvass.

If our plans are or are not succeeding we must know it, so as to conform to circum

stances.

THE ELECTION.

1. The club will use their influence to cause all persons employing Democratic labor to aid them to be present and vote.

2. Make a list of white men who from infirmity or other causes need bringing to the polls, and assign a member of the club to each one of these.

3. Appoint two challengers and furnish each with a copy of the list of voters or

census.

4. Appoint a committee of members who will exercise general superintendence and see that the programme on each election day is carried out.

5. Use all lawful means to watch and keep to their promise those negroes who have agreed not to vote.

But above all things be careful in this to avoid intimidation.

PLAN OF CAMPAIGN.

1. The Hancock clubs for the election of all Democratic nominees will meet not less than twice a month; oftener when expedient, and in executive session with closed doors.

2. It is desirable that our attention be concentrated upon selected negro voters to secure the majority desired, and that the others be let alone.

Those selected for our efforts should be, not party leaders, office-seekers, or others who expect to make something out of the Radical party, but

First. Those who have acquired property and pay taxes.

Second. Those whose relations to and standing with the whites is best.

Third. Those who are poorest and most dependent upon the whites.

Fourth. The weaker classes generally.

3. It is deemed best to operate upon the individual negro voters and to carefully avoid attempting to influence them in masses. To this end, when your register of negro voters is complete, submit it to your club, and require each member to select such negro or negroes as he can influence. Let such member be a committee of one for the purpose he has undertaken and report results to the executive committee of the club; these results to be registered, and report when called for by the county chairman.

It is hardly probable that so many persons would openly violate the law or be allowed by sworn officers to do so. The penalty prescribed for the fraudulent voter is severe under the laws of Alabama, although it is said to be quite light comparatively as regards the officers of election. They had with them in each precinct, as must be assumed under the provisions of the law cited, full certified copies of the registration lists with the names of the electors alphabetically arranged thereon, and the assistant registrar of the precinct was required to be present at the polls with papers ready to register all electors who had not been registered prior to that day, and it may be assumed that he was present, or that some other person was appointed by the inspectors to attend to that duty in his absence.

The vigilance exercised generally is illustrated by what was done in regard to the so-called marked ballots already considered. Similar activity is probable in respect to the registration and challenging.

It is not now claimed or shown that any of those who voted were not in fact qualified voters and entitled to vote otherwise, or that any of them were challenged. No one of them is called as a witness to prove his identity or failure to register.

All this renders the claim of contestee very improbable. It would require proof of an indubitable character.

It is the settled law of elections 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 on the party denying their right to vote. (Report in Finley vs. Bisbee, Forty-fifth Congress.)

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

Now, let us see what the proof adduced is.

Contestee has procured and put in evidence certain papers certified to by the probate judges in five several counties respectively, purporting to be copies of the registration lists for the precincts involved, and also of papers called the poll-lists from the same precincts. His claim is that he produces certified copies of all the registration lists of these precincts, which show all the persons registered and qualified to vote in the same, and poll-lists showing the names of all those who did vote as written down by the clerks at the election. By comparing these papers in each precinct named in his table, cited herein before, he finds, as he says, and as witnesses who have compared them swear, 2,698 names in the aggregate on the poll-lists which are not on the registration lists, and he contends that it follows that they were not registered, and their votes illegal.

The minority of the committee, in their report (p. 27) in Bisbee v. Finley, an analogous issue, said that "the evidence relied on was wholly inadequate, being altogether inferential." But we go further:

Now, in order to have this proof satisfactory and sufficient it must at least be shown by affirmative, competent, and credible evidence that the records contain copies of all of the original and supplementary lists of registration made out by the registrars and assistant registrars since 1875 and before the election of November 2, 1880, together with all that were made on election day at the polls by the assistant registrars, or those appointed in their place by the inspectors in the absence of the registrar. Unless we have copies of all the registration books and lists, we have not got the proper basis for comparison.

We must next have all of the requisite poll-lists duly proved and properly authenticated.

Upon examining the copies certified to, we do not find, save in a few cases, what answers these requirements. I find certified lists extracted or taken from books, not copies of the original books or lists, or what purport to be copies of the same. I find nothing to show what names were once on them, and been dropped or taken off by reason of deaths, removals, or disabilities, or for other reasons. Judge Richardson certifies, page 1225, that one volume is missing in Madison County, and Judge Talley that part are lost in Jackson County (Rec., p. 798.) Few of the lists are verified in the original by the certificate of the registrar, as required by statute, and as it must be presumed they would be if genuine. In some of the counties the copies annexed do not cover the whole period of time from 1875, the date of the first registration, to the day of election, and including the lists made on the day of

election under the law.

The papers copied, or purporting to be extracted from, are not many of them in the form prescribed, with the appropriate headings, contents, and certifications, as they would be if the genuine originals. The case is such as to demand legal and strict proof.

I am not satisfied with that adduced. It is too loose, uncertain, and irregular, and so liable to error, mistake, and omission as to require extrinsic evidence, which we have not got, in its support. Mere certificates of judges beyond that of copies of papers given are not enough to meet counter-evidence and presumptions.

I do not mean to intimate that any of the judges of probate would knowingly make or give false certificates, or intentionally withhold any lists. But when we find, as we do, proofs that registration lists have been