VIEWS OF MR. HOUK.

(1) Presumption of correctness of returns.

There can be no "legal presumption in favor of the unassailed boxes," in counties where the election, taken as a whole, was not honest. (2) Counties to be treated as wholes.

Where it is shown that there was a corrupt conspiracy on the part of the county officers of election to have a fraudulent election held throughout the county, and where it is shown that the conspiracy was carried out in a number of precincts of the county, and there is no evidence in regard to the other precincts, the presumption of legality fails as to all the boxes, and the whole county should be thrown out.

349

VIEWS OF MR. HOUK.

Mr. HOUK, from the Committee on Elections, submitted the following minority report:

It is with regret that I find myself compelled to differ from my brethren on the Committee of Elections. and I especially regret to dissent from the able majority report in this case, because in all except its conclusions I most heartily concur, and adopt it as a part of my report. It begins as follows:

The Committee on Elections having had under consideration the contested elec tion case of James R. Chalmers, contestant, v. James B. Morgan, contestee, from the Second Congressional district of Mississippi, reports that it is not proven by the record that the contestant was elected nor that the contestee was not; but it is proven that the election in question was characterized by frauds disgraceful to our civilization, and such as to call for severe animadversion on the part of every honest man. The election in question was held on the 6th day of November, 1888. The contestant was the Republican nominee for Congress, and the contestee the Democratic. The latter was returned as elected by a plurality of 8,161 votes, a plurality at least four times as great as his legal plurality.

Again, the report says:

In two counties of the nine constituting this Congressional district, in which counties there are twenty-three polling places, the election is conceded to have been fair and honest. In the remaining seven counties there are ninety-seven polling places. The validity of the election is assailed at fifty-five of these, but not successfully, in the opinion of your committee, as to exceed twenty-two or twenty-three. This statement shows that at twenty-three boxes out of ninety-seven the committee find fraud enough to reduce the plurality returned for the contestee at least three-fourths, or, to put it in figures, from 8,161 to 2,040. So that by an examination of one-fourth of the boxes threefourths of the returned plurality is wiped out.

I have examined thirty-eight boxes, where I think the validity of the election is successfully assailed and which wipe out the total returned majority for the contestee, and give a majority to the contestant. It is greatly to be regretted that the majority report did not give at least the names of the boxes which were considered successfully assailed, and those which they did not, so that the House could decide intelligently about the boxes upon which the majority and minority report did not agree. A detailed statement of the boxes which I consider successfully assailed will be hereafter given, together with the testimony as to each box.

The majority report then says:

The Second Congressional district of Mississippi consists of nine counties, Benton, De Soto, La Fayette, Marshall, Panola, Tallahatchie, Tate, Tippah, and Union. No question is made as to the honesty of the election in the two last named, and no reason has been shown why the honest voters thereof should be distranchised.

With respect to the other seven counties, there is a number of boxes as to which no testimony was taken, but it may safely be affirmed that in not one of these counties, taken as a whole, was the election an honest one. Fraud in various forms, including intimidation of voters, corrupt manipulation of registration, stuffing and stealing of ballot-boxes and illegal voting find ample illustration in all of them.

And concludes as follows:

In the opinion of your committee, following the rules of law to which they have already given adherence, the conceded fairness of the election in Tippah and Union Counties, and the legal presumption in favor of the unassailed boxes, must save to the sitting member his seat, notwithstanding the fact that glaring and reprehensible frauds were committed in connection with his election.

This contains two startling conclusions, from which I am compelled to dissent.

First, I can never agree that there can be any "legal presumption in favor of the unassailed boxes" in the seven counties, where the committee say: "It may be safely affirmed, that in not one of these counties, taken as a whole, was the election an honest one."

Second, I can never agree that two little counties, casting only onefifth of the vote, shall control seven other counties, casting four-fifths of the vote. There were cast at this election, 19,795 votes for these two candidates and of these 3,520 were cast in the two counties, of Tippab and Union, 16,275 were cast in the other seven counties.

In these seven western counties, where the contest is made, the contestee was returned a plurality of 6,465. Take from this three-fourths of the returned plurality, to wit, 6,121, which the majority report says were fraudulently returned, and it leaves to the contestee in these seven counties a plurality of only 344, where he was returned 6,465. This practically wipes out those seven counties and gives them no voice in the election. To permit him to retain his seat on this state of facts is to sustain the Mississippi plan and allow two little Democratic counties casting 3,520 votes to control the seven Republican counties casting 16,275 votes. I can never agree to this and especially in a State where it is proved that the elections are held by machine rule, which can always maintain its power if the majority report is right, by permitting fair elections in a few white counties, and at a few white boxes where they have a majority, and by utterly corrupting the ballot-boxes where the majority is against them.

The majority report again says:

Sufficient has been shown to make certain that the election methods of the Second Congressional district of Mississippi include such as, if continued, must prove destructive of popular government. Their existence calls loudly for relief by law, of such a kind as shall secure to every citizen, without distinction of race or color, his constitutional right of suffrage,

In this I most heartily concur. But I insist that before we talk about making laws to prevent such outrages in the future, we should deal with the outrages now before us, and put a stop to the further enjoyment of a seat in Congress obtained by election methods which the majority say, "if continued must prove destructive of popular govern

ment."

Again the report says:

In many places the ballot boxes were removed from the presence of the United States supervisor, against his will and without pretence of justification or excuse.

Every presumption arises against those guilty of such open and express violations of a statute passed in the interest of pure elections. And where, as in this case, the practice is so common, it is hard to avoid the conclusion that it is the result of concert for a fraudulent purpose.

This is equivalent to saying, if it does not in terms say, they are morally certain that the contestee was not elected. And the explicit declaration here made that "every presumption arises against those guilty of such open and express violations of the statute passed in the interest of pure elections," completely answers and overturns the position of the majority in regard to the presumption of verity as to the unexamined boxes assumed by them in order to save contestee his seat. The law says that in case of conspiracy the testimony is gener ally circumstantial. And the supreme court of Mississippi speaking of circumstantial evidence on a trial for murder, said:

As mathematical certainty is not attainable in such cases, moral certainty is all the law requires. Even direct testimony, it is said, does not afford grounds of belief of a higher nature. Evidence which supplies the minds of the jury to this extent constitutes full proof of the fact in question before them. This moral certainty is defin d by Chief-Justice Shaw, in his charge to the jury in the Webster case, to be a certainty that convinces and directs the understanding and satisfies the reason and judgments of those who are bound to act conscientiously upon it. (James v. The State, 45 Miss. R., 575.)

Under the law, as I understand it, the facts of this case clearly show that the contestee was not elected.

Now let us look to the question whether the contestant was elected. The majority report shows that it "saves to the contestee his seat" by a plurality of only 2,040, and that it does this on "the legal presumption in favor of the unassailed boxes." The report does not name the unassailed boxes as they are called. But the names of forty-four boxes and the votes returned at each are set out in this report, and the majority will admit that they were allowed by them to stand as unassailed, and that they were not therefore included in the twenty-three boxes which reduced the plurality of the contestee three-fourths. These boxes where the contestant had 269 plurality over Manning give to the contestee 2,266 plurality.

Unexamined boxes.