and it was Mr. Lowe's duty to have shown that its integrity was maintained. Mr. Lowe's lawyers were fully informed in the commencement of the taking of testimony-in-chief that the box was carried off and kept all night unlocked. If it had been possible for Mr. Lowe to have procured evidence to sustain the integrity of the box it seems to us he would certainly have done so.

We respectfully submit that the evidence conclusively proves that Courtland box No. 2 was managed entirely by men who were at least not the friends and supporters of Wheeler.

Some may have been Hancock men, but certainly the evidence does not show they were Wheeler men.

When the ballots were partly counted out one of these men claimed they had made a mistake, and to correct this they put all the ballots in a rough box, and Mr. Harris carried the box to his room, kept it all night, returned with it the next morning, when it appears from the evidence the ballots were easily though illegally counted in a very short period, when a report was made showing 419 votes for Lowe and 111 votes for Wheeler.

Mr. Lowe's friends admit that these inspectors worked from five o'clock, the time the polls closed, until two o'clock next morning, and during those nine hours they claim they had counted less than six hundred ballots.

These men wish the committee to believe that they acted with proper rapidity, and yet failed to count out 60 ballots an hour, when it was evident that all these ballots could have been easily counted out in two or at most three hours.

Above and beyond this Mr. Lowe's witness Mr. Simmons, page 453, swears that after counting nine hours they discovered they had made a mistake, and Mr. Lowe's other witness, Mr. Reynolds, swears, page 444, that after the nine hours they yet lacked right smart of completing the

count.

Is it not clear that there was wrong connected with this box?

These ballots could have been easily counted out in two or three hours, and by seven or eight o'clock a correct report could have been completed, and yet we find these men at two o'clock in the morning had done nothing but count a part of the ballots, and the only result of these nine hours' work was the discovery that they had made a mistake.

The committee cannot see how it was possible these friends of Colonel Lowe discovered a mistake, when Mr. Reynolds says they lacked right smart of counting all the ballots

Does it not show that all this dallying of nine hours gave an opportunity to corruptly tamper with the ballots?

Does it not show that the mistake discovered was that Wheeler had more ballots than some one wished him to have, and some one therefore found it necessary to secretly fix up the box to meet the requirements of Mr. Lowe's managers?

They did not have Wade Blankenship or William Wallace there to examine the wrists and sleeves of free Americans and compel them to vote for Mr. Lowe, and the evidence is conclusive that at least a hundred Democrats and at least a hundred Republicans voted for Wheeler. The Wheeler ballots were in the box, and the difficulty of changing them with five or six people present was staring them in the face.

We respectfully submit that there has never been stronger evidenc before Congress assailing the integrity of a box than we have here presented.

If Mr. Reynolds had been a friend of Wheeler would he have gone

voluntarily 43 miles to testify for Mr. Lowe? Would he have resisted each effort to develop these facts, as his evidence shows he did? (See page 444.) His anxiety was so great that he swore, page 4473, that the votes were counted fairly. He says:

I watched over it myself.

I saw it was done well.

I was in the house.

And then he afterwards admits this was not true, and he swears, top of page 448:

I was not absent but a few minutes during the counting in the daytime in the last

count.

And top of page 445 he says:

Well, I was not there all the time, but I was there nearly all the time.

We could go on with this discussion, but the House will certainly admit that it requires nothing further to show that this box must be rejected.

The evidence that the ballots were tampered with at this poll is very much stronger than at "Arredonda poll" (case of Bisbee v. Finley), and we might add that it is stronger than any other case before this committee.

The violation of law by the inspectors is proven by Mr. Lowe's witnesses, and most of the evidence is given by Republicans.

It proves positively that there was palpable violation of the law and flagrant fraud at this box.

This fraud was distinctly charged in the answer to the notice of contest, and it was proved by the evidence of numerous witnesses, and not one word of the evidence is in any way controverted.

Harris was not called as a witness. Where he took the box; how he kept it; whether any person had access to it other than himself; whether he himself examined it, or did anything with it or with the ballots in it during these hours that it was away from its proper custody and not subject to proper supervision-as to all these things the evidence is a total blank, except as above alluded to and hereafter stated. The next morning Mr. Harris brought back what purported to be the box he took away with him, and the contents of that box, whatever they were, were counted; but we contend that the proof shows that the ballots did not remain the same, because the testimony proves that at that poll the contestee received at least 200 votes, whereas there was only returned for him 111, thus showing that the count as made did not correspond with the ballots as cast. We submit, therefore, that this box must be rejected, and this will deduct from the contestant 419 and from the contestee 111. Now, the box being rejected, as it certainly must be, then, according to all the rulings of the majority of the committee in other cases, and according to the plain law on this subject, the parties are remitted to the proof of the ballots actually cast for them respectively, and it being proved that the contestee received 200 votes at that poll, this number should be added to his aggregate vote.

Before concluding we feel it our duty to allude to the character of evidence which Mr. Lowe has presented to the Committee on Elections. Evidence by deposition is in derogation of common law. It is only by virtue of statute that such evidence can be used in any judicial tribur als.

The supreme court of Pennsylvania, using the language which we find in every elementary work on evidence, said:

The taking of testimony by deposition is at best but a very imperfect way of arriving at the truth; every precaution should, therefore, be taken to guard against abuses.

We approve of this expression, and think that evidence taken with disregard of the statutory requirement should not be received.

We have alluded to this subject in referring to the depositions taken at Lanier's, but we think it requires a more special attention.

The following are the provisions of the Revised Statutes of the United States material to the point now under consideration:

SEC. 122. The officer shall cause the testimony of the witnesses, together with the questions proposed by the parties or their agents, to be reduced to writing in his presence and in the presence of the parties or their agents, if attending, and to be duly attested by the witnesses respectively.

SEC. 127. All officers taking testimony to be used in a contested-election case, whether by deposition or otherwise, shall, when the taking of the same is completed, and without unnecessary delay, certify and carefully seal and immediately forward the same by mail addressed to the Clerk of the House of Representatives of the United States, Washington, D. C.

The corresponding provisions of the judiciary act of 1789 are in the following words:

And every person deposing as aforesaid shall be carefully examined and cautioned and sworn or affirmed to testify the whole truth, and shall subscribe the testimony by him or her given after the same shall be reduced to writing, which shall be done only by the magistrate taking the deposition, or by the deponent in his presence. And the depositions so taken shall be retained by such magistrate until he deliver the same with his own hand into the conrt for which they are taken, or shall, together with a certificate of the reasons as aforesaid of their being taken, and of the notice, if any, given to the adverse party, be by him, the said magistrate, sealed up and directed to such court and remain under his seal until opened in court.

The provision that the deposition must be reduced to writing in the presence of the officer is common to the contested-election law and the judiciary act of 1789.

It is obvious, therefore, that decisions of the Federal courts on the provision of the judiciary act for the writing out of the deposition will be authorities in cases which may come before this committee under the corresponding provision of the statute relating to contested elections. In Bell v. Morrison, 1 Peters, 351, Judge Story, delivering the opinion of the court

Held that under section 30 of the judiciary act a deposition is not admissible if it is not shown that the deposition was reduced to writing in presence of the magistrate.

In Edmonson v. Barrett, 2 Cranch C. C., 228, the plaintiff's attorney offered in evidence on the trial the deposition of John Marshall, of Charleston, South Carolina, taken before the Hon. John Drayton, district judge of the United States. The certificate of the judge was in the following words:

DISTRICT OF SOUTH CAROLINA, 88:

On this 28th day of May, 1818, personally appeareth the under-named deponent, John Marshall, of Charleston, merchant, before me, the subscriber, John Drayton, district judge of the district aforesaid, and being by me carefully examined, cautioned, and sworn in due form of law to testify the whole truth and nothing but the truth relating to a certain civil cause, &c., &c., he maketh oath to the deposition above written, and subscribes the same in my presence, the said deposition being first reduced to writing by the deponent.

The attorney for the defendant objected to the deposition on the ground that the judge had not certified that it was reduced to writing in his presence, as required by section 30 of the judiciary act of 1789. The attorney for the plaintiff contended that it was to be presumed to have been so written because the law required it.

But the court unanimously sustained the objection and rejected the deposition. In the case of Pettibone v. Derringer, 4 Wash., 215, tried in the circuit court of the United States for the 3d circuit, at Philadelphia, in 1818, before Justice Washington, of the Supreme Court of the United States, and District Judge Peters, objection was made on the trial to the introduction of a deposition on the ground that the officer who took that deposition had not certified that it was reduced to writing by the witness in his presence. The court sustained the objection and heldThat a deposition taken under the thirtieth section of the judiciary act cannot be used unless the judge certifies that it was reduced to writing either by himself or by the witness in his presence.

In the case of Rayner v. Haynes, Hempst., 689, decided by the United States circuit court for the 9th circuit, in 1854, depositions offered by the attorneys for the defendant were objected to on the ground that the magistrate failed to state that the depositions were reduced to writing in his presence, and the objection was sustained by the court.

In the case of Cook v. Burnley, 11 Wall., 657, when the defendants' case was reached in the course of the trial, the defendants offered to read a deposition taken under section 30 of the judiciary act. There was no certificate by the magistrate that he reduced the testimony to writing himself or that it was done by the witness in his presence. The deposition was excluded by the district court. The Supreme Court of the United States said:

There is no certificate by the magistrate that he reduced the testimony to writing himself or that it was not done in his presence, which omission is fatal to the deposition.

In Baylis v. Cochrane, 2 Johnson (N. Y.), 416, Chief Justice Kent, delivering the opinion of the court, said:

The manner of executing the commission ought not to be left to inference, but should be plainly and explicitly stated. It would be an inconvenient precedent and might lead to great abuse to establish the validity of such a loose and informal system. Matters which are essential to the due execution of the commission ught to be made to appear under the signature of the commissioners. Among these essential matters is the examination of the witness on oath by the commissioners and the reducing of his examination to writing by them, or at their instance and under their We are accordingly of the opinion that the judgment of the court below ought to be affirmed.

care.

While the particular facts in this New York case differ from the facts of the case now on trial, it is quite unnecessary to suggest the forcible application of the doctrine of that case to this.

The case of Summers v. McKim (12 S. & R., 404) is a very strong authority on the point now under consideration. There was at the time no law in Pennsylvania requiring the deposition to be reduced to writing in the presence of the officer. There was no rule of court to that effect. The only regulation on the subject was a rule of court requiring the deposition to be taken before a justice. But Chief Justice Tilghman, delivering the opinion of the court, said:

The third bill of exception contains two distinct points. The first point is on the admissibility of the deposition of George Leech; several exceptions were made to this evidence, but there was one which was decisive; and as it involves a principle of great importance in practice, I am glad that an opportunity is offered to the court of settling it. This deposition was taken under a rule of court before a justice of the peace of Clearfield County, but it was drawn up in the city of Lancaster, from the mouth of the witness, by Mr. Hopkins, counsel for the defendant, and then sent to Clearfield County and sworn to there. Now, although the character of the counsel in the present instance puts him above all suspicion of unfair dealing, yet it would be a practice of most dangerous tendency if depositions so taken were to be

admitted as evidence. The counsel of the party producing the witness is the last person who should be permitted to draw the deposition, because he will naturally be disposed to favor his client, and it is very easy for an artful man to make use of such expressions as may give a turn to the testimony very different from what the witness intended. I know that depositions are sometimes taken in this manner by consent of parties; and when the counsel on both sides are present the danger is not so great, but in the present case there was no consent, nor was the consel of the plaintiffs present. The rule of court is that the deposition shall be taken before a justice. It ought, therefore, to be reduced to writing from the mouth of the witness in the presence of the justice, though it need not be drawn by him; and in case of difference of opinion in taking down the words of the witness the justice should decide. In chancery, if the counsel of one of the parties draws the deposition before the witness goes before the commissioners, it will not be permitted to be read in evidence. (1 How. Ch., 360.) This certainly is a good rule. The taking of testimony by deposition is at best but a very imperfect way of arriving at the truth; every precaution should, therefore, be taken to guard against abuses. It is very clear to me that the mode in which the deposition of George Leech was taken is subject to great abuse, and should be put down at once. I am of opinion, therefore, that was very properly rejected. See also the following cases: United States v. Smith, 4 Day, 121; Railroad Co. v. Drew, 3 Woods C. Ct., 692; Beale v. Thompson, 8 Cranch, 70; Shankriker v. Reading, 4 McL., 240; United States v. Price, 2 Wash. C. Ct., 356; Hunt v. Larpin, 21 Iowa, 484; Williams v. Chadbourne, 6 Cal., 559; Stone v. Stillwell, 23 Ark., 444.

The proof in this case shows:

1ST.

That 49 depositions found on pages 34 to 266 and 302 to 452 of the record in this case have no certificates at all, and the proof shows that they were not written out in the presence of the commissioner before whom it is claimed they were taken.

2D.

That exhibits were attached to some of these depositions which the witnesses did not see.

3D.

That exhibits were attached to depositions which were not correct copies of records which they purport to represent.

4TH.

That a transcript from the probate judge of Morgan County was changed, and that matter was written upon said transcript after it reached the hands of Mr. Lowe or his agents or attorneys, and the mat ter written thereon was made the basis of an argument in contestant's brief.

5TH.

That a false exhibit was filed with the record and printed in the record following the deposition of Lowe Davis, which false exhibit was made the basis of an argument in contestant's brief.

6TH.

That the affidavits attached to the motion to suppress show that the certificate attached to the deposition of Mr. Lowe was not written out