vote; and we have a school, supported by the State, in which "idiotic and feeble-minded youth" are taught to read and write, and thus be qualified to vote under the equal, just, and discriminating laws of Massachusetts.

Leaving out the idiots, insane, aliens, and convicts, it appears demonstrable that 105,109 citizens of the United States have their immunities and privileges abridged, and are deprived of their right to vote in that State.

We have already commented upon the testimony which we have examined in regard to the towns of Amesbury and West Newbury; how these laws were enforced to the oppression and disfranchisement of the humbler class of citizens, and with the purpose of compelling them to vote according to the dictates of the dominant party. This mode of carrying elections in Massachusetts is termed, by a newspaper of the largest circulation of any daily newspaper in the State, which advocated the Republican candidates in this election, and recommended, as civilized bulldozing.

We have also shown that if the fourteenth amendment to the Constitution of the United States is put into effect, and the representation of Massachusetts is apportioned by a reduction " in the proportion which the number of such male citizens shall bear to the whole number of such citizens twenty-one years of age," it would reduce the number of Representatives from eleven to eight.

Now, as the total vote of this district (23,275) is nine and eight onehundredths (9.08) per cent. of the total Congressional vote of the State, the same percentage of the whole number of citizens disfranchised in the State, viz, 105,109, will approximate very nearly the number disfranchised in the sixth Congressional district, which we find to be 1,646 for "illiteracy" and 11,475 for failure to pay a tax, making a total of 13,121-considerably more than half of the total vote thrown in the district, or 2,782 votes more than were cast for any candidate.

Shall the State, by its laws and their execution, be allowed to disfranchise so many of its citizens, and have the benefit of the representation of these disfranchised citizens in Congress and in the Electoral College under the present apportionment? Let the law under which this very apportionment is made answer.

Section 6, chapter 11, of the acts of 1872, approved February 2, 1872, 17 Stat., page 28, under which the apportionment is made, enacts—

That should any State, after the passage of this act, deny or abridge the right of any of the male inhabitants of such State, being twenty-one years of age and citizens of the United States, to vote at any election named in the amendments to the Constitution, article fourteen, section two, except for participation in the rebellion or other crime, the number of Representatives apportioned in this act to such State shall be reduced in the proportion which such male citizens shall have to the whole number of male citizens twenty-one years of age in such State.

This answers the question, and also whether the phrase in the Constitution, article 14, of the amendments, "No State shall make or enforce any law which shall abridge the privileges of citizens," &c., is aimed against a law depriving them of the right to vote. It also settles the question which is sometimes raised, whether a constitutional provision can execute itself without being "enforced by appropriate legislation." To enforce this law-and all laws ought to be enforced, especially those that guard the rights of the citizen-will substantially diminish Massachusetts from eleven to eight Representatives, and from thirteen electoral votes to ten.

Another question may be raised: It will be observed that this section says, "That should any State, after the passage of this act, deny or abridge the rights," &c.

It may be objected that the laws under which the State elections are held in Massachusetts do not appear to have been made after the passage of this act. But if the committee will turn to the law before cited (General Laws of 1874, page 283, chapter 376), they will find that the law imposing these restrictions was passed June 29th of that year, and was an act of the State, therefore, two years after the apportionment act of Congress. In other words, the State took advantage of the apportionment according to the whole number of people granted by Congress in 1872, in order to get the representation, and then deliberately disfranchised, in the face of that law, quite two-fifths of her voters, so that a few scarcely half-of her citizens might control it.

It may be said that this matter can only be readjusted when the reapportionment is made; but the answer to that is patent. Such abridg ment of the rights of the citizens of the State is an offense which the Constitution, ex proprio vigore, declares punishable by loss of represen tation, and consequently of electors. When is this offense to be punished? The answer is, when it is discovered, whether it is looked upon in the light of an offense or a wrong done. All offenses should be punished when discovered; all wrongs done, righted when discovered.

Is there any man on the committee who doubts, upon all this evidence, that if it had not been for these disfranchising laws of Massachusetts, and the manner in which they were executed, the contestant would have been uncontestedly elected? There can be but one honest reply to that. If so, then it is within the power of the House to seat a man who received, upon any count, within a score or two of a plurality of the votes actually thrown, and who would have received a large majority of the votes of which he was unconstitutionally and illegally deprived.

We have done our duty in presenting these wrongs to Congress. Let the House apply the remedy, and right the wrongs, and prevent the wrong-doers from enjoying the benefits of such wrongs, either in too great representation in the House or in the Electoral College, thereby controlling the choice of the President.

We recommend that the following be adopted by the House of Representatives in this case:

Resolved, That E. Moody Boynton is entitled to the seat in the Fortysixth Congress from the sixth Congressional district of Massachusetts, and that George B. Loring is not entitled thereto.

J. B. WEAVER.

SEBASTIAN DUFFY vs. JOSEPH MASON.

TWENTY-FOURTH CONGRESSIONAL DISTRICT OF NEW YORK.

Contestant alleges fraud, the buying of votes, and other corrupt and illegal means on the part of contestee. Contestee insists that the grounds of contest are not stated with that precision and certainty required by statute.

Held, That the notice of contest is clearly insufficient, but the contestee is estopped by his own acts from assailing the sufficiency of the notice, and its defects have been waived by a subsequent agreement with reference to the taking of testimony. The proof that rumors existed that persons friendly to contestee improperly influenced their employés to vote contestee's party ticket is incompetent and must be rejected as hearsay. It is necessary to establish the truth of these rumors and not their bare existence; and for the same reason all evidence relating to voluntary statements made by persons not under oath or witnesses must be rejected, as all such heresay evidence is inadmissible.

Where evidence fails to show that money used by political committees was used to corrupt or improperly influence the voters, such voters cannot be disfranchised, even though members of such committees have possibly violated State statutes by using money for purposes prohibited by such statutes.

A candidate cannot be held responsible for all the imprudent and censurable acts of indiscreet friends, who, in the zealous advocacy of his election, resort to improper means in securing that result without his knowledge, unless the voters affected by such means are sufficient in number to change or render uncertain the result of the election.

Evidence which shows only that certain persons who voted were students at a university in the district creates no presumption that they were not legal voters at the place where such university islocated.

The House adopted the report May 21, 1880.

MAY 21, 1880.-Mr. COLERICK, from the Committee on Elections, submittted the following

REPORT:

The Committee on Elections, to whom was referred the contested-election case of Sebastian Duffy against Joseph Mason, from the twenty-fourth Congressional district of New York, respectfully submit the following report:

The election out of which this contest arises occurred on the 5th day of November, 1878, in the twenty-fourth Congressional district of the State of New York, composed of the counties of Oswego and Madison. The official returns show that the contestee received for Representative in Congress from said district 12,043 votes, and the contestant 11,307, making the contestee's official majority 736.

The grounds of contest are specified in the notice of contest, of which the following is a copy:

SIR: Please take notice that I shall, in the manner provided by law and the rules and precedents of the House of Representatives of the United States, contest your election and your certificate of such election as a member of the Forty-sixth Congress of said United States from the twenty-fourth Congressional district of the State of New York, on the following grounds, to wit:

First. That you did not receive a majority of the legal votes cast at the election held in said Congressional district on the 5th day of November last, but, on the contrary, that I did receive a majority of such votes.

Second. That your election was effected and procured by force, fraud, intimidation, promises of favor, corruption, the buying of votes and voters, and other corrupt and illegal means used by you and in your behalf; and that your certificate of election as such member of Congress was and is based upon and the result of such force, fraud, intimidation, promises of favor, the buying of votes, and other corrupt and illegal means used by you and in your behalf.

Third. That your election was procured by illegal votes and illegal voting in your behalf, and by your procurement or the procurement of those interested in your election.

Fourth. That your certificate of election is invalid for the reasons stated in the second specification herein.

Fifth. That I was, on said 5th day of November, 1878, legally elected as such member instead of yourself, and am entitled in your stead to a seat in said Forty-sixth Congress.

Dated Pulaski, December 23, 1878.

SEBASTIAN DUFFY.

The contestee insists that the grounds of contest are not stated with that precision and certainty required by the statute which authorizes and regulates the procedure in contests of this nature. The objections urged by the contestee are presented in his answer, as follows:

II. Your notice in writing served upon me December 26, 1878, is insufficient and incomplete under the statute and practice in such case made and provided, in that it does not specify particularly the grounds upon which you rely; that is to say, your charges that my election was procured by force, fraud, intimidation, promises of favor, the buying of votes and voters, and other corrupt and illegal means used by me and in my behalf, and that my election was procured by illegal votes and illegal voting, and by my procurement or the procurement of those interested in my election, and grounds of contest therefor respectively, do not state who was forced to vote for me, and what fraud contributed to my election, and who was intimidated, or in what manner, place, town, city, or county such intimidation was had, and to whom or in what manner promises of favor were made, and what votes and voters were bought or where and when such votes or voters were so bought, and what other corrupt and illegal means were used by me and in my behalf, and by what illegal votes and illegal voting by my procurement or the procurement of those interested in my election you were prejudiced, and who were so interested, and in what election district, town, city, or county such persons reside and perpetrated such acts complained of.

The statute provides:

SEC. 105. Whenever any person intends to contest an election of any member of the House of Representatives of the United States, he shall, within thirty days after the result of such election shall have been determined by the officer or board of canvassers authorized by law to determine the same, give notice, in writing, to the member whose seat he designs to contest, of his intention to contest the same, and in such notice shall specify particularly the grounds upon which he relies in the contest. (Revised Statutes of the United States, page 18.)

McCrary, in his Law of Elections, section 343, referring to this statute, says:

A good deal of discussion has arisen as to what is to be understood by the words "specify particularly the grounds on which he relies." It is evident, however, that these words are not easily defined by any others. They are as plain and clear as any terms which we might employ to explain them. Cases have arisen, and will again arise, giving rise to controversy as to whether a given allegation comes up to the requirement of this statute, and it must be for the House in each case to decide upon the case before it. It may be observed, however, that this statute should receive a reason

able construction, one that will carry out and not defeat its spirit and purpose. And perhaps the rule of construction which will prove safest as a guide in each case is this: A notice which is sufficiently specific to put the sitting member upon a proper defense and prevent any surprise being practiced upon him is good, but one which fails to do this is bad. (Wright rs. Fuller, 1 Bartlett, 152.)

The Houses of Congress when exercising their authority and jurisdiction to decide upon "the election returns and qualifications" of members are not bound by the technical rules which govern proceedings in courts of justice. Indeed, the statutes to be found among the acts of Congress regulating the mode of conducting an election contest in the House of Representatives are directory only, and are not and cannot be made mandatory under the Constitution. In practice these statutory regulations are often varied and sometimes wholly departed from. They are convenient as rules of practice and of course will be adhered to, unless the House in its discretion shall in a given case determine that the ends of justice require a different course of action. They constitute wholesome rules not to be departed from without eanse. (Ibid., section 349.)

While it is true that this statute should receive a liberal construction, yet it will not do to permit parties to disregard its provisions. The House, in sanctioning its violation in cases heretofore determined, has created precedents that are now frequently and pertinently cited to justify similar infractions. This practice, if tolerated, will finally result in the virtual abrogation of the statute. The only safe course to pursue is to require at least a substantial compliance with its provisions. We think that the notice of contest in this case is clearly insufficient. It is too indefinite and uncertain in its allegations. As was said in the case of Bromberg vs. Haralson (Smith's Digest of Election Cases, page 355)It is too vague and uncertain to be good. The statute requires that the contestant in his notice shall specify particularly the grounds upon which he relies in his contest." It is impossible to conceive of a specification of the grounds of contest broader or more general in its terms. It fixes no place where any act complained of occurred. It embraces the whole district in one sweeping charge. This specification embraces three general grounds of complaint, not one of which possesses that particularity essential to good pleading.

But the contestee in this case is justly estopped by his own act and conduct from assailing the sufficiency of the notice of contest, and its defects have been by him waived. The record contains the following agreement:

UNITED STATES OF AMERICA:

In the matter of the contested election of Joseph Mason, Representative-elect to the Forty-sixth Congress from the twenty-fourth Congressional district, State of New York:

It is hereby stipulated and agreed, by and between Sebastian Duffy and Joseph Mason, contestees, through their respective attorneys, that all affirmative evidence heretofore given or which may hereafter be given be, and remain, in this contest as a part of contestant's case, and that contestee, in consideration of this consent and stipulation on his part, have sufficient time after the expiration of the statutory limit of ninety days in which to give evidence in answer to such new matter so put in evidence, to the end that simple and exact justice be done to all parties, and that contestant have reasonable time to put in evidence in rebuttal only to such evidence as the contestee may give after said ninety days shall have expired. Dated April 10, 1879.

S. D. WHITE,

Attorney for Duffy. JOHN J. LAMOREE,

Attorney for Joseph Mason, Oswego County.

D. N. WELLINGTON,

Attorney of Joseph Mason for Madison County.

That such defects may be waived has been determined by at least two decisions of the House. (See Otero vs. Gallegos, 1 Bartlet, 178, Bromberg vs. Haralson, Smith's Digest of Election Cases, page 356.)