Gambar halaman
PDF
ePub

18,000 majority in this district. If there was such a majority of negro voters, it has been so divided among opposing candidates, so weakened by dissension and division, that its power at the polls has never been exerted. As evidence of this we find that the board of canvassers of each of the counties of the district, composed of the judge of probate, the sheriff, and clerk of the circuit court of each county, who are elected by the people, are members of the Democratic party. It is also true that since this Congressional district was formed there have never been less than two candidates for election as Representative in Congress claiming to be the candidates of the Republican party.

At the Presidential election of 1876 the Republican majority for Hayes in this district was only 9,115 (R., p. 170), and in the same year the joint majority for the two Republican candidates for Congress was only 6,256. There were two canidates for Congress claiming to be Republicans at the election of November, 1880. These were the contestant and William J. Stevens. Their names were submitted to a Congressional convention, which was unable to effect even a temporary organization because of the wranglings and dissensions among its members. Contestant's witness, Mr. J. T. Harris, gives it as his opinion that Mr. Stevens was the real candidate of the convention, though there was so much confusion and so little of order or propriety observed, that it was difficult to say that any one received the nomination (R., p. 258). There was no question of principle involved in this wrangling, and it was evidently the result of political trickery and the selfish wrangles of petty politicians. It is notorious that the scenes at this convention were but a repetition of what had uniformly occurred at previous Congressional conventions in that district; it will therefore not be surprising if we find, as we shall, that the ignorant, though honest, colored voter who adhered to the Republican party, being unable to decide who was entitled to his vote as the Republican candidate, became disgusted and indifferent and refused to take part in the conduct of elections or to attempt to vote.

The evidence shows that in the county of Dallas no election was conducted at one-half of the precincts in the county, and no attempt made by the Republicans to open the polls and conduct the election in those precincts, although there was not the slightest impediment or obstruction placed in the way of any three Republicans, in any of these precincts, who had sufficient interest in the election to act as inspectors and open the polls, and though a Republican United States supervisor had been appointed for each of the voting places in this county to advise and assist.

DALLAS COUNTY.

In this county testimony is taken in relation to seven precincts, to wit: Pine Flat, River, Mitchell's, Chillatchie, Martin, Lexington, and Cahaba. In relation to these precincts, it is complained, first, that the county board of supervisors appointed two Democrats and one igno rant negro as the board of inspectors for each voting place; and, secondly, that the Democratic inspectors who were appointed failed to be present and act on election day. As to the first complaint, the law requires that at least two of the inspectors at each voting place shall belong to different political parties, and it is not denied that to this extent the board of canvassers complied with the law in appointing the inspectors; but it is said that the Republican inspector thus appointed was always an ignorant man. While we fail to find testimony to sustain this allegation, yet we would ask, How was it possible for more intelligent rep

It will not be

resentatives of the Republican party to be appointed? denied that in every precinct in Dallas County about which evidence has been taken all the officers of the election, to wit, the three inspectors, the two clerks, and the United States supervisor, were Republicans, chosen by Republicans, and yet we find that for not one voting precinct in the county did they make a return which was not so defective and irregular that the board of county canvassers were compelled by law to reject it. The "return" consists simply of a certified copy of the polllist, and a statement of the vote received by each person, and for what office. Certainly it required no great degree of intelligence to make th roperly, and yet, presumably from ignorance, not one of the six Republican officers at each voting place, nor all of them together, were able to make out a correct return. This being so, how could the board of supervisors of the county select an intelligent inspector to represent the Republicans in each precinct; and how can any one with justice say that their failing to do so is evidence of a conspiracy or combination to defraud the voter? As to the failure of the Democratic inspectors to act, it should be borne in mind that the laws of Alabama expressly provide that no person appointed as inspector shall be bound to act as such, or liable to any penalty for failure to act, until he shall have either performed some act as such inspector or taken the oath provided for inspectors; and is it a just cause of complaint, or for imputation of an evil intent on the part of the Democrats, because they failed to take part in the election and left the Republicans entirely free and untrammeled to conduct the polls? Could they ask more than this? It should be remembered that the evidence shows there was not the slightest attempt on the part of the Democrats in this county on election day to interfere with or impede the Republicans in their conduct of the election.

The law of Alabama is that should any of the inspectors appointed fail to appear and open the polls at the proper time, any one or more of them who may be present may complete the number from the by-standers, and if all of them fail to appear any three qualified electors may act as inspectors and open the polls. Now, if one party consents that the polls shall be entirely within the control and conduct of the other party, can it be gravely said that the latter has cause to complain? But there is a significant reason why Democrats appointed as inspectors should have a hesitancy to act. On pages 219 and 220 of the record will be found the names of persons who have acted as Democratic officers at elections at this and previous elections, and who have been indicted in United States courts for violation of the election law. As evidence of the facility with which these indictments have been found, and as an example of their character, we will ask attention to the indictments against Charles W. Turpin and John C. Lee, against whom an indictment was filed in the United States circuit court at Montgomery, charging them with a violation of the election laws. These men were Democratic inspectors at Scott's precinct, in Perry County. The occurrences at the election at that precinct are in evidence. But the only evidence of wrong-doing by the inspectors was contained in the testimony of one Walter Lowry, a Republican supervisor, who swears that Mr. Turpin gave him (Lowry) $35 to permit the ballots which had been cast to be changed and altered; that he accepted and retained the bribe and permitted the unlawful acts to be committed, and indeed made himself a party to their commission. (R., p. 159.) It is on the testimony of this witness that these men were indicted and will be compelled to undergo a trial. This Lowry is, upon his own admission,

utterly unworthy of belief. Is it therefore surprising that Democrats are not eager to conduct elections for the benefit of Republicans when they may thus lay themselves liable to charges of this character?

As the returns from the precincts mentioned were rejected, and therefore not included in ascertaining the vote of the county, it was clearly competent for the contestant or contestee to establish the vote by evidence if at any of them a lawful election was held. The contestant attempts to establish his vote, and it is for us to ascertain whether or not he has succeeded.

As the sitting member held the seat by a title prima facie sufficient, it is incumbent on the contestant to affirmatively prove this title defective. This rule is well stated in the celebrated New Jersey case (1 Bartlett, pp. 24 and 26):

Before a member is admitted to a seat in the House something like the judgment of a court of competent jurisdiction has been pronounced on the right of each voter whose vote has been received, and in order to overturn the judgment it must have been ascertained affirmatively that the judgment was erroneous. When the polls are closed and, an election is made, the right of the party elected is complete; he is entitled to the returns, and when he is admitted there is no known principle by which he can be ejected, except upon the affirmative proof of the defect in his title. Every effort to oust him must accomplish it by proving a case. The difficulties in his path can form no possible reason why the committee should meet him half way. The rule of reason requires that he should fully make out his case even though it require proof of a negative, and such is also a rule of Parliament in analogous cases.

The burden of proof being upon the contestant, by what character of evidence should he be required to prove his case? The ordinary rules of evidence must of course apply to election contests as well as to other cases. (McCrary on Elections, sec. 306.) One undeviating rule of evidence is that the best evidence must be produced of which the nature of the case will admit; that secondary cannot be substituted for primary evidence unless it be shown that the latter is not within the power of the party, and the former should certainly not be substituted for the latter when it is apparent that the primary evidence is within the reach of the party and is by the law placed within his power.

Now, there are certain documentary evidences of the election which the law of Alabama provides should be preserved for the sole purpose of furnishing evidence of the vote in case of contest; these are the ballots which were cast at the election. The ballots cast at each voting place, together with one poll-list, are required to be carefully sealed up in the ballot-box and delivered into the custody of one of the inspectors, who is required to retain it for sixty days intact, and then to destroy the contents of the box, unless he is notified that the election of some officer for which the election was held will be contested, in which case he must preserve the box for such election until such contest is finally determined, or until such box is demanded by some other legal custodian during such contest. (Section 288, Code of Alabama.)

It will be seen that the ballots are required to be preserved expressly for the contestant. These are the evidences of the result of the elec tion which the law provides. In addition to this the certified poll-lists, statements, &c., which are returned by the board of inspectors of each precinct and the county board of canvassers, are required to be retained intact in the office of the judge of probate. (Section 293, Code of Alabama.)

Now, if the returns are made by the board of inspectors and are attacked, or if insufficient or defective returns or no returns are made, will it be denied that these ballots are the best evidence of the result of the election, especially where it must be admitted from the nature of

the case that the ballots in the box retained by law for the purpose of evidence are the genuine ballots which were cast at the election? And if it be true, as it is, that the ballots from the election at each of these precincts in Dallas County were placed in the custody of the Republican inspector by the Republicans, that they were received from the hands of the voter by Republicans only, counted by Republicans only, placed in the box and sealed up by the Republicans only, will it be gravely contended that the contestant should be permitted to offer secondary and inferior evidence to prove what the vote was at the several voting places without having attempted to put these ballots in evidence, or furnish any reason or excuse whatever for his failure to do so? In no instance is any inquiry made for the ballots, nor is any effort made to produce them, not even where the testimony itself shows to whom the ballots were committed, and even in those cases where the person who had the ballots in his custody, as shown by the testimony, appeared and was examined as a witness by the contestant. Without showing that the ballots were not in his power to produce, contestant resorts to oral evidence. This he clearly could not do. Oral evidence cannot be substituted for any instrument which the law requires to be in writing, and no proof can be substituted therefor so long as the writing exists and is in the power of the party. (Greenleaf on Ev., sec. 86, vol. 1.)

In the contested-election case of Spencer vs. Morey (Smith's Digest, p. 449) it was admitted by both parties that no official returns could be found, because they had been abstracted or destroyed. This being the case, the minority of the committee say:

The best evidence, viz, the returns, having been lost or destroyed, secondary evidence is theu admissible to establish what was the contents of the written instrument, viz, the returns. We understand the rule governing the admissibility of secondary evidence with respect to documents to be that proof of their contents may be estab lished by secondary evidence, first, when the original writing is lost or destroyed; second, when its production is a physical impossibility, or at least highly inconvenient (p. 480).

In this case it is not shown that any of these conditions existed to justify the introduction of oral testimony. We can only conjecture why contestant failed to have the ballots produced, but we cannot avoid the suspicion which the law itself creates that the failure to produce the ballots was because they would not conform to the imperfect returns or the unreliable testimony of the witnesses for the contestant. If this plain principle of law be not disregarded, it is unnecessary to further consider the testimony in relation to these precincts; but we think that an examination into the testimony produced will show that contestant has failed to establish the vote by satisfactory evidence.

In Martin's precinct the testimony shows (R., p. 120) that a large number of the colored voters were Democrats, and there were three recognized candidates for Congress at the election, viz, contestant, contestee, and W. J. Stevens.

Two witnesses are examined by contestant to establish the vote of this precinct. These are A. Martin (R., pp. 121 to 124), Ned Pettiway (R., pp. 114 to 121). Martin was an inspector of the election, and he is the only officer of the election who is examined. He states that he helped to count the ballots, though he could not read, and could not tell a Republican from a Democratic ballot (R., p. 123). He says, on p. 122: Myself and Nathan and another counted them; we put them on the floor, counted them in two hats, one by one, and made a tally of them.

Ned Pettiway swears that he gave the inspectors the directions "how H. Mis. 35-4

to count and how to tally;" that they did not know, and he had to stand outdoors and give them directions. He swears the tickets were counted by three separate men at the same time, each of them having a pile of the tickets and counting them in his hat. And he swears positively that these tickets were never read over but once, and then were read simply as "Republican" or "Democrats."

A. Martin says that the clerks read the names on the tickets, and it is not pretended that any of the inspectors read them. He only knows that there were sixteen Democratic votes cast, because, as he states (R., p. 124), “I made them [the clerks] hand them out to me."

To show how unreliable is the testimony of the witness Martin, and of these witnesses generally, we ask attention to his statement (R., p. 124) where he swears positively that the statement of the result of the election was signed by the inspectors; and yet when that statement is put in evidence it is found to be unsigned. Now, if these ballots were simply counted as Democratic or Republican, and if all the candidates on the Republican ticket were the Republican candidates, and all the candidates on the Democratic ticket were only Democratic candidates, how is it possible to determine from this testimony whether or not Mr. Stevens received any votes? The law of Alabama in regard to the counting of ballots is as follows:

SECTION 1. In counting out, the returning officer or one of the inspectors must take the ballots one by one from the box in which they have been deposited, at the same time reading aloud names of persons written or printed thereon, and the office for which such persons are voted for. They must separately keep a calculation of the number of votes each person receives and for what office he receives them; and if two or more ballots are found rolled up or folded together, so as to induce the belief that the same was done with a fraudulent intent, they must be rejected; or if any ballot contains the names of more than the voters had a right to vote for, the first of such names on such ticket to the number of persons the voter was entitled to vote for only must be counted.

When asked what oath was taken by the inspectors, the witness Martin, tells us :

I swore the inspectors; I told them to raise their hand and say, you solemnly swear to go forth aud do the best they could in this election to discharge those duties.

The law makes the following provision as to the oath:

Before opening the polls the inspectors and clerks may take the oath to perform their duties at such election in accordance to law, to the best of their judgment, and the inspectors must also swear that they will not themselves or knowingly allow any other person to compare the number of the ballots with the number of the voters enrolled, which oath may be administered to the inspectors by each other, or by a returning officer, or by a justice of the peace. (Code of Alabama, sec. 265.)

Now we do not contend that the votes cast at this election should not be counted because the ballots were not counted in the careful manner provided by law, nor because the oath provided by law was not taken by the inspectors, but what we believe is that as the inspectors were too ignorant to know what oath should be taken, or either too ignorant or too careless of their duties to ascertain the result of the election as provided by law, and as it is shown that their counting of the votes was of such a character as to make it unreliable, the House cannot say from the evidence what the vote was.

In the examination of Pettiway he states, on page 116, the ballots were kept by one of the inspectors, as were one of the poll-lists, and he repeats this statement (R., p. 120). Why did not the contestant have a subpoena duces tecum served upon the inspector who had these ballots in his custody? Does not this testimony show clearly the necessity of adhering to the rule of evidence before laid down?

« SebelumnyaLanjutkan »