sitting member, and that it was partially successful. This conspiracy was carried out by creating a disturbance at the election by threats of violence and the exhibition of deadly weapons, and particularly by crowding about the polls in such numbers as to prevent many colored voters from reaching the polls to deposit their ballots, and with this intent. The committee then proceed to deny that rejection of the poll would be a remedy for such wrongs, and say some other remedy must be found. In these words it is presented: This is to be found in the rule, which is well settled, that where a legal voter offers to vote for a particular candidate, and uses due diligence in endeavoring to do so, and is prevented by fraud, violence, or intimidation from depositing his ballot, his vote should be counted. The principle is that the offer to vote is equivalent to voting. This report we understand to be directly contrary to the decisions of the courts, and the only case which had before been presented to the House, and we are unable to ascertain in what place and before what tribunal such rule had been "well settled;" in fact, it appears to have been set up in the case of Niblack vs. Walls for the first time, without any precedent to sustain it, and we think an examination of the cases subsequently decided by this House will show that the rule therein suggested has never in any single instance been followed. In Frost vs. Metcalf, reported in 1879, the committee say: While on this branch of the subject your committee will dispose of the complaint made by the contestant that by reason of the errors in copying the registration list be lost many more votes than contestee. To count votes which were never offered at any poll is ca: rying the doctrine further than we ever knew it. To authorize this committee to count a vote four things are requisite: first, the person offering to vote must have been a legal voter at the place he offered to vote; second, he must have offered his vote; third, it must have been rejected, and fourth, it must be shown for whom he offered to vote. The case of Yeates vs. Martin relied upon does not touch the question of counting votes not cast. In the case of Bisbee vs. Finley, reported in 1882, the committee say: As a question of law we do not understand it to be controverted that a vote offered by an elector and illegally rejected should be counted as if cast. The committee in that case affirm that each vote counted by it was in fact by the voter actually tendered to the election officers, and was by such election officers rejected. In Sessinghaus vs. Frost, reported in 1883, each vote counted was actually tendered by the voter to the election officers, and was by the election officers rejected. Bell vs. Snyder, reported in 1874, was based on a failure to open the polls until three hours after the appointed time, and is no authority for counting votes not cast. Thus we see the House has never followed the rule suggested in Niblack vs. Walls; that rule is not well settled, and has never been established in this House. In Frost vs. Metcalf the House expressly refused to follow it, and the rule prescribed in the latter case has ever since been recognized as the correct one. There are objections even to the rule as there laid down; any extension of it is fraught with difficulties and dangers, and until this time, since the report in that case, no committee of this House has ventured to depart from it. The majority of the present committee and the majority of this House in the case of Mudd vs. Compton, just decided, failed and refused to conform to or apply the rule laid down in the case of Niblack vs. Walls, which it is now sought to enforce. It was claimed in Mudd vs. Compton, that a sufficient number of legal voters to have changed the result had they voted were standing in line at the polls for the purpose and with the intention of voting for contestant; but were prevented from doing so by intimidation; and yet the committee did not count such votes as cast-it reported in favor of rejection of the polls, and the House, after full discussion, adopted such report. The act of Congress referred to in the report of the committee refers only to qualification of voters and not to the act of voting. The citations from McCrary, and Paine on elections, referred to in the report of the committee, are based upon the decisions of the House herein reviewed, and as we have shown are not sustained by any of the cases referred to except Niblack vs. Walls, which is a departure from and contrary to the established rule and which stands alone, unsupported, so far as we have been able to learn, by a decision of any court or of any legislative body in this country. It seems to us that the rule contended for by the majority in this case would open wide the door for fraud and invite false swearing, which the opposing party would have no means of refuting. To hold that anything short of an actual tender of the ballot to the election officers and a rejection by them was an offer to vote, would be a most dangerous and uncertain rule and one to which we can not give our sanction. Where the evidence plainly establishes the fact that a legal voter offers his ballot to the election officers and they unlawfully reject the same, under the precedents heretofore established such vote may be counted for the candidate for whom the voter offered to vote. Conceding for the purpose of the argument all that is claimed by the contestant in this case, to wit, that by fraud and intentional hindrance and delay a large num ber of voters who intended to vote for him were unable to reach the poll to tender their ballots, although they used diligence; that when the polls closed a large number of voters present on the ground desiring to vote for him had for such reasons been unable to do so, and that thus a sufficient number of voters were prevented from voting to have changed the result had they succeeded in voting; still, inasmuch as there was no actual tender of their votes and rejection thereof by the election officers, such votes can not be counted for contestant; they have not been offered and rejected, and the most that can be claimed under this assumed state of facts is that there has been no fair and full election within the meaning of the law, and that neither party shall be adjudged entitled to the seat. In the case before us we have before said we do not believe there was any considerable obstruction of the voters in their right to vote; but it appears that at the time the polls were closed at 3 precincts of Jackson ward there were a number of voters present at each polling place desir ing and intending to vote who were prevented from doing so through no fault of their own, and it is possible that such voters were sufficient in number to have changed the result had they all voted for the contestant. Under these circumstances we have been somewhat embarrassed to determine what recommendation we should make to the House. As we have shown, under such a state of facts, the courts determine the result by the vote actually cast. The enforcement of that rule in this case would give the seat to the sitting member. But we are not satisfied of the justice of such rule. While it is true that neither the contestee nor his partisans can justly be held responsi ble for the failure of any of the voters to exercise their right of suffrage yet we believe that some were deprived of the opportunity to vote and that the number might have been sufficient to change the result, and so believing in the interest of fair play and complete justice we are not inclined to hold the contestant responsible for the inefficiency of the Republican judge or the conduct of the Republican Federal supervisors, but are of the opinion that the ends of justice will be subserved by remitting the election to the people of the district who can, unembarrassed by the constitutional convention question, freely declare their choice, and we therefore submit the following resolution: Resolved, That the seat now held by George D. Wise as theRepresentative in the Fifty-first Congress from the Third Congressional district of Virginia, be, and the same is hereby, declared vacant. CHARLES F. CRISP. JOHN V. MCDUFFIE vs. LOUIS W. TURPIN. FOURTH ALABAMA. The issues in this case are almost entirely questions of fact, about the only legal questions involved being as to the admissibility of testimony and the weight of evidence. Contestant charged that in a large number of precincts throughout the district the officers of election fraudulently counted thousands of votes for contestee which were in fact cast for contestant. The committee find the charge sustained by the evidence, and that to count the vote as proved to have been cast would make a change of 17,634 votes in favor of contestant. The minority find fraud proved in eight or nine precincts, and by restating the vote of these precincts according to the evidence, and counting a number of precinct returns not counted by the county canvassing boards, make a change of 4,049 votes in favor of contestant. This being less than the majority returned, and the evidence being insufficient to sustain the charges of fraud in other precincts, the right of contestee to the seat is sustained. The resolutions presented by the committee were adopted by the House June 4, 1890, by a vote of 130 to 113, and Mr. McDuffie was sworn in. The debate will be found on pages 5512 to 5601 of the Record. (1) Returns. Their weight as prima facie evidence. In considering the evidence with reference to particular precinct returns it is first necessary to inquire by whom the election was held in order to determine what weight should be given to the returns. Returns are, as a rule, prima facie evidence of the result; but if the integrity of the inspectors is in any way impeached, either by showing that their character is such as to cast suspicion on their acts, or that their belief is that frauds upon elections are justifiable, or that the manner of their selection was such as to indicate a purpose to procure a false statement of results, then the returns lose much of the weight that would otherwise attach to them. (2) Conspiracy. Partisan appointment of election boards evidence of. When the law provides that each of the two political parties shall have representation on the election board of inspectors it is a provision. to prevent dishonest partisans from making false returns; and in such |