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tached to the deposition of twelve witnesses, all of whom are mentioned in the certificate.

The last certificate is that of Commissioner Robert Andrews, on page 1399. It purports to be a certificate to nine witnesses, all of whom are named in the certificate.

There is no other certificate in the record except those attached to the depositions of the contestee.

The only proof of the rejection of these votes is to be found in what are claimed to be the depositions of T. W. White, 37; W. L. Goodwin, 42; N. Davis, 47; T. B. Hopkins, 130; L. Bibb, 137; G. W. Maples,140; W. L. Christian, 143; R. J. Wright, 148; E. C. Lamb, 150; N. Whittaker, 153; W. G. Smith, 370; A. Gandy, 373; H. A. Skeggs, 376; J. Y.Ferguson, 382; W. A. Pinkerton, 339; A. G. Smith, 343; A. C. Witty, 346; W. McCulley, 349; J. E. Seal, 394; D. N. Fike, 397; T. C. Walker, 404; W. J. Gibson, 496; W. W. Simmons, 496.

The contestee objected to these depositions at the commencement of the present session of Congress on the ground that they were not certified according to law, and has persisted in that objection until the present time.

Again, none of these alleged depositions were reduced to writing in the presence of the notary.

The provision of the Revised Statutes of the United States is:

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.

The corresponding provision of the judiciary act of 1789 is 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.

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 deposition is not admissible if it is not shown that the deposition was reduced to writing in presence of the magistrate.

The same doctrine is maintained by the following authorities: Edmondson v. Barret, 2 Cranch C. C., 228; Pettibone v. Derringer, 4 Wash., 215; Rayner v. Haynes, Hempst., 689; Cook v. Burnley, 11 Wall., 659; Baylis v. Cochran, 2 Johns. (N. Y.), 416; Summers v. McKim, 12 S. & R., 404; 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.

This objection applies to the 49 depositions which it is claimed were taken in Huntsville before R. W. Figg, esq., during the forty days allowed by law for contestant to take testimony-in-chief; and to 110 depositions which purport to have been taken at Lanier's during the period allowed by law for contestant to take evidence in rebuttal.

The record does not show that any of these so-called depositions were reduced to writing in the presence of the officer before whom they purport to have been taken.

On the contrary, the proof shows this was not done. The evidence, page 1116, shows that these so-called depositions were taken down in short-hand, and that they were afterwards written out in long-hand in the absence of the officer, and page 1125 shows that important exhibits were attached to the depositions which the witnesses did not see. The motions which are supported by affidavits should be sustained, and the 49 alleged depositions mentioned in said motions should be suppressed; the motion to suppress 110 alleged depositions taken at Lanier's should be also sustained, and those depositions should be suppressed.

The Views of Mr. Ranney" contain the following statement:

The course pursued in this respect was manifestly irregular. But this becomes now immaterial and unimportant. The various motions made by the respective parties, as to striking out evidence have been considered and denied, either as immaterial or not well grounded.

If this merely means that the decision of the case on its merits by the Committee on Elections involves a decision of these questions of evidence, and that therefore the duties of the committee on the subject are ended, the statement is accurate enough. But if the meaning is either that the committee has formally acted on these questions of evidence, or that action by the committee, however had, concludes the House of Representatives, so that these questions "have become immeteral and unimportant" in the House, the statement is wholly erroneThe House is the judge on this point, as on all others involved in the case, and the materiality and importance of these questions in the House is not affected by the action of the committee.

ous.

(3.) We now proceed to the consideration of the counter-claim set up by the contestee, to the effect that 1,294 ballots cast for the contestant were illegal, not only because they contained the designations of eight offices unknown to the law but also for the further reason that they were printed on such transparent paper, and with such ink and type, that the contents were visible to the inspectors and bystanders on the outside of the folded ballots.

The statutory provision, as we have seen, is that unless the ballot is "without any figures, marks, rulings, characters, or embellishments thereon" it must be rejected. Whatever else may or may not be embraced in the meaning of the term "marks," as here used, that term evidently includes any device or combination of devices which will enable either the inspectors, when they receive a ballot and pass it from hand to hand for deposit in the ballot-box, or the near by-standers, to distinguish it from other ballots. In this sense the term "marks" may include several things or elements. It may apply to a star, cross, line, or circle, or to any other printed form, or to a series or number of forms, placed on the exterior of the ballot, so as to enable the inspectors or bystanders to distinguish it from others. The ballot would in that case be marked. It would not be, in the sense of the statute, "without marks." It would fall within the prohibitions of the statute.

But if by the use of such paper and of such type and ink on the face of the ballot as to show the face or a part of it through the folded ballot the inspectors and by-standers are enabled to distinguish it from others, then also the ballot is marked, in the sense of the statute, whether the words themselves are or are not legible on the outside of the folded ballot. It is enough if they are clearly visible, so that the ballot may be distinguished from ballots of a different kind.

The following are exact representatives of 1,294 ballots which are proved to have been cast for the contestant and counted for him, and are to be deducted from his vote. These ballots, when folded, are readily distinguishable by the inspectors and by-standers, not only from the ordinary legal ballot, the face of which is not visible through the paper on the reverse side, but also from each other:

FOR ELECTORS FOR PRESIDENT AND VICE

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FOR ELECTORS EOR PRESIDENT AND VICE-
PRESIDENT

STATE AT LARGE.

W. L. BRAGG.

E. A. O'NEAL.

DISTRICT ELECTORS.

1st District-D. P. BESTOR.
2d District-JOHN A. PADGETT.
3d District-J. F. WADDELL.
4th District-JOHN ENOCHS.

5th District-THOS. W. SADLER.

6th District-J. G. HARRIS.

7th District-F. W. BOWDON.

8th District-H. C. JONES.

FOR CONGRESS-EIGHTH DISTRICT.

William M. Lowe.

These transparent ballots were used in mountain counties and precincts, where the law was not well understood, and where there was the least risk of detection and exposure of this cunning device for destroying the secrecy of the ballot. The following are the citations of testimony which show that 1,294 ballots of this kind were counted for the contestant, at thirty-four different precincts in the district:

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It is claimed that these ballots ought to be counted for Representative in Congress, if for no other candidate. This would be true, if the statutory provision had been merely that such names of candidates and designations of offices as should be placed on the ballots in violation of the law should be rejected in the canvass. But such is not the provision of the statute. The statutory provision is that if the ballots are not in the form prescribed, the ballots themselves shall be rejected.

It seems to us clear that these 1,294 ballots, which not only contained the designations of eight offices unknown to the law of Alabama, but were also marked ballots, and, for that reason, peremptorily excluded by a mandatory law of that State, were illegally counted for Mr. Lowe, and are to be deducted from his vote.

The question here presented is a new question. It was not considered by the Committee on Elections in the Mississippi case of Lynch v. Chalmers. The differences between the statutory provisions of Mississippi and Alabama, and between the ballots in the two cases, are such that a decision in one of the cases will not, necessarily, furnish a precedent for the other. The Mississippi statute is in the following words:

All ballots shall be written or printed in black ink, with a space not less than onefifth of an inch between each name, on plain, white printing news paper, not more than two and one-half nor less than two and one-fourth inches wide, without any device or mark by which one ticket may be known or designated from another, except the words at the head of the ticket; but this shall not prohibit the erasure, correction, or insertion of any name by pencil-mark or ink upon the face of the ballot; and a ticket different from that herein prescribed shall not be received or counted.

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