But in this case the affiant makes general statements, alleges facts not within his personal knowledge, does not state the names of witnesses, their residence, or what particular facts he proposes to prove by any of them. He alleges fraud and unfairness in general terms, and does not pretend it is the same fraud alleged in his notice of contest, and the committee think that the affidavit is fatally defective, and no extension should be granted by reason of anything therein stated.

The report of the Senate Committee on Privileges and Elections in the Forty-third Congress is not evidence. It relates to a period long anterior to 1880.

It is not a judicial determination, and is not to be considered in determining the application.

66

In Boles vs. Edwards, Smith El. Cas., 58, the contestee submitted in evidence the report of a joint select committee, appointed by the senate and house of representatives of Arkansas to investigate election frauds, and it was rejected as simply Views of certain members of the legislature of Arkansas." So this report, if it related to the very election in question, would be simply the views of certain members of the Senate of the United States, and could not bind the House or furnish evidence for its consideration. It would be to us simply hearsay and inadmissible, as laid down in the report of Speaker Keifer in the case of Donnelly rs. Washburn, in the Forty-sixth Congress.

The committee concede the right of the House to investigate the title of Oates to a seat, even if Mabson has been guilty of such negligence and laches as to preclude him from contesting for the seat, as a party and litigant. But does his affidavit make a case calling on the House to institute an inquiry and investigation for its own vindication, or to purge itself of a member unelected, in fact?

The charges of fraud and illegality are general. At what precincts committed, or in what counties even, is not alleged. Of what particular acts they consisted is not stated. No witness is named who will furnish testimony of particular acts. In fact, no witnesses are named at all.

The committee are not put in possession of a single fact of fraud or illegality, or furnished with the medium of evidence by which the same may even seem susceptible of proof. No case is therefore made for invoking the jurisdiction of the House to investigate in order to protect its own rights and dignity.

The application for extension of time being disposed of, the question recurs as to the final disposition to be made of the case. In the presence of contestant the committee proposed to allow sufficient time to enable the testimony already taken to be placed on file if it was claimed by him that its presence might change the result; but it was admitted by him that the testimony aforesaid, in addition to the evidence on file, would not overcome or materially change the majority for the sitting member, and the committee therefore deemed it unnecessary to delay in order to put the same on file.

And it being conceded by contestant and found by the committee that the evidence now before it shows a large majority for Oates, the sitting member, we therefore report the following resolution:

Resolved, That W. C. Oates, the sitting member, was duly elected, and is entitled to the seat occupied by him in this House as the Representative from the third district of Alabama in the Forty-seventh Congress.

After this report had been made and submitted, the contestant filed a supplemental affidavit, covering some of the objections pointed out in the report to his former application, and asking for further time to take testimony in the district.

The affidavit having been read to the full committee, it was held by a majority thereof that the application came too late; that it would be dangerous to establish a precedent allowing a contestant or contestee, after finally submitting their cases, to ascertain from the report of the committee the grounds upon which he had been overruled, and to then supplement his application by a new affidavit, avoiding the decision, and thus open up the case again. Such a practice your committee think would lead to interminable delays, and would transform the committee into mere advisers of the parties. The committee are of opinion that parties should be bound by a reasonable degree of diligence, and that there should be a time fixed beyond which the doors for the reception of ex parte affidavits or evidence should be shut. Inasmuch as there was no application to file additional affidavits before the subcommittee until after its report was made, the committee are of opinion the last affidavit came too late, and should not be considered.

Some doubts exist in the minds of the majority of your committee about the form of a resolution which should be reported in this case for adoption by the House. It is unnecessary to state the reasons of this diversity of opinion. In order that the case may speedily be disposed of without prejudice to any one, a majority of the committee report the following resolution for adoption by the House:

Resolved, That contestant, A. A. Mabson, have leave to withdraw his papers without prejudice.

VIEWS OF THE MINORITY.

In the matter of contest between A. A. Mabson and W. C. Oates, from the State of Alabama.

HOUSE OF REPRESENTATIVES,

Washington, D. C., March, 1882.

The undersigned, members of the Committee on Elections, make the following minority report:

It is admitted that the contestant herein gave the proper notice of contest, and within the time prescribed by law; and that contestee, also, within the time required, filed his reply thereto, putting in issue all the material allegations contained and charged in said notice of contest; all of which will be found fully set forth in the majority report herein, and the minority do not herein repeat the record. It also fully appears from the evidence that contestant proceeded to take testimony in the matter, and did succeed in taking considerable evidence, and endeavored to take additional evidence, but, for reasons hereinafter set forth, failed to procure the same.

Contestant filed an affidavit and motion that he be granted further time to take evidence; in which affidavit he set forth the reasons for such motion and the diligence which he had used to procure the same. It was found by a part of the committee that the showing was insuffi. cient, but before the report was agreed upon, and now returned by the majority of the committee, contestant filed another affidavit, substantially the same as the first, but more in detail. This was not received by the majority, and further time refused, notwithstanding the fact that contestant offered to take the evidence at his own expense.

The minority cannot agree with the majority of the committee in this action, as we believe that contestant used due diligence in endeavoring to procure his evidence in time, and it is shown that he was prevented from so doing without fault or neglect on his part, and that justice to contestant, as well as to the contestee, and all others in the district for which the contest is made, and against whom charges of fraud and wrong are made, demands that a full investigation be had; and if the charges were sustained, contestant should have his rights; and if found untrue, he should find no recognition here; but truth should be known through the investigation demanded, and we make especial reference to the affidavit of contestant, hereto attached and made a part of this report, said affidavit being the same submitted to the committee, and by a majority found insufficient.

And in view of the facts the minority submit this report, and ask that the following resolution be adopted:

Resolved, That A. A. Mabson be allowed further time, not exceeding forty days, to take, at his own expense, such evidence in support of his said notice of contest as he may desire, and that contestee shall have thirty days thereafter to take such evidence as he may deem proper in rebuttal.

WM. G. THOMPSON.

A. H. PETTIBONE.
S. H. MILLER.
JOHN PAUL.

F. JACOBS, JR.

GEO. C. HAZELTON.

WASHINGTON CITY,

District of Columbia:

Algernon A. Mabson, being duly sworn, deposes and says that he is the contestant in the contested-election case of A. A. Mabson against W. C. Oates, from the third Congressional district of Alabama, now pending in the Forty-seventh Congress.

That in support of his motion for further time in which to take testimony in said election case, which he is advised that his counsel heretofore made before the Committee on Elections of the House of Representatives, he says that he was prevented from sooner making this statement because of enforced and unavoidable absence from the city of Washington; that he was in Washington during the present session of Congress until its recess, and then he was compelled to return to Alabama, to the city of Mobile, in order to be present at a session of the circuit court of the United States, which commenced in that city on the 10th day of the last month; that he had been appointed, or rather was notified by the circuit judge that he would be appointed, in open court, general master in chancery of the court, and special master in chancery of the Mobile and Ohio Railroad, and was required to be present at the beginning of the session in order to receive his appointment, &c.; that he was soon relieved from the necessity of attending on the court, when he was attacked by sickness, viz, pneumonia, and was by his illness precluded from traveling; that his counsel notified him, by letter of date the 19th of January, of the necessity of his appearing and acting in this case, but he had left Mobile before the arrival of the letter, being called to his home in Union Springs by the serious illness and expected death of one of his children, and therefore did not receive this notification until he stopped in Mobile on Monday last, the 30th of January, when he had returned to Mobile from Union Springs; that he did not believe action would be taken by the committee in this case until the testimony in the case had been printed, and believed he could be in Mobile on the 10th of last month, and remain there two or three days, and return to Washington in due time, and would have done so had he not been prevented by illness from so doing; that he arrived in Washington at 3 o'clock p. m. this 2d day of February.

Deponent avers that he used due diligence in taking testimony, and having the same taken, during the time allowed him by law in which to take the same, and that it was impossible for him, for the reasons hereinafter stated, by the use of due diligence, to have taken said testimony during said time.

With the single exception of registers in bankruptcy and judges of the United States court, the only officers before whom his testimony could be taken were officers under the laws of the State of Alabama, and as neither a register of bankruptcy or judge of a United States court resided in his Congressional district, he was compelled to rely entirely upon the State officers before whom to have witnesses examined in his behalf; that the State officers, for reasons hereinafter related, are all members of the political party to which contestee belongs, viz, the Democratic, and are all opposed to affiant and inimical to his contest, and favorable to the contestee.

They are also opposed to the proving by testimony before any tribunal of the fraudulent and illegal practices alleged in affiant's notice of contest, because they favor the same, and were, as will be hereinafter shown, elected to their respective offices by the fraudulent and illegal stuffing of ballot-boxes, and other unlawful and fraudulent methods that are alleged in affiant's notice of contest to have been practiced in the pretended election of contestee. Affiant therefore met with difficulties and embarrassment on every hand in attempting to find persons before whom his testimony could be properly taken.

Affiant avers that he duly served notice and had subpoenaed to be examined in his behalf about two hundred witnesses, before H. H. Smith, a notary public at Ridgley, in Bullock County, and the same were duly examined, but the said testimony has not been forwarded to the Clerk of the House of Representatives by the said H. H. Smith,

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 conld 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 geuerally 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.

"Frand, 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