within it; and this for two reasons: 1. Whether made before or after the election, they equally are admissible against him in a criminal prosecution for illegal voting, which in Ohio, is a penitentiary offence. 2. If before the election, they also subject the declarant to danger of loss of his vote, since, by statute in Ohio, witnesses may be examined at the polls, and thus the declaration of the party be there given in evidence against his right to vote.

Here, then, is the highest interest of the voter against the declaration -loss of liberty, infamous punishment, loss of suffrage. Shall one pennyworth of pecuniary interest suffice to render the declaration admissible; and yet these momentous considerations, involving the most valuable rights of the citizen, be reckoned but as the small dust of the balance?

But whether within the special conditions of the exception or not, these declarations, both as to qualifications and vote, but particularly the former, are emphatically within the broad principle upon which the exception itself is founded. What is it? What is it? "The extreme improbabiity of their falsehood."-(1 Greenleaf Ev., § 148.) And this improbability, says the author, is strengthened by the circumstance that "it is always competent for the party against whom such declarations are adduced to point out any sinister motive for making them." "It is true," he adds, "that the ordinary and highest tests of the fidelity, accuracy and completeness of judicial evidence are here wanting; but their place is in some measure supplied by the circumstances of the declarant; and the inconveniencies resulting from the exclusion of the evidence having such guaranties for its accuracy in fact, and for its freedem from fraud, are deemed much greater, in general, than any which would probably be experienced from its admission." For similar reasons, doubtless, it was that in Powell vs. Harter, (24 E. C. L. Rep., 467,) an action for libel upon a charge of receiving stolen goods, knowing them to have been stolen, upon justification pleaded, the court allowed the declarations of the alleged thief to be given in evidence by the defendant to prove that he (the thief) had stolen the goods received by the plaintiff. also Doe & Davy vs. Haddon, (3 Doug. Rep., 310.)

And see

There is yet another principle recognized by the common law, upon which the declarations here objected to are admissible-necessity. On this principle, in part, some of the hearsay which I have already considered, is admitted to prevent a failure of justice. In like manner the testimony of the wife in proceedings to keep the peace, or for assault and battery upon herself, instituted by her against the husband, is received, and thus one of the earliest, firmest, and most sacred rules of evidence—a rule not even yet swept away by the relentless hand of modern reform-is so far relaxed. So, also, the contents of a trunk lost by a

common carrier may be proved by the owner.-(1 Greenleaf Rep., 27.) And in Ohio and Pennsylvania the wife of the owner is received as a competent witness for that purpose.-(20 Ohio Rep., 318; 8 Serg. & Watts, 369; 3 Barr, 351.) In many other cases, also, upon this principle of necessity, persons excluded by the general rules of evidence are yet admitted to testify.

Apply the principle here, and, first, as to declarations concerning disqualifications.

Upon this point it is enough to say that, besides the difficulty, sufficiently great just after an election, and increasing continually the longer the delay in taking the testimony, of securing the attendance of voters challenged as illegal, none of them of any class can be compelled to testify, even if present and on oath, as to their disqualification, because they might thereby criminate themselves. This protection extends to every question the answer to which might tend to convict them of having voted illegally.

To exclude the declarations of voters in any case would, therefore, tend greatly to embarrass the rights of both parties and of all concerned.

2. This necessity applies with especial force to the declarations of the voter as to the person for whom he voted; because that is a fact which he cannot be compelled to disclose where the election is by ballot. This has been repeatedly decided. I refer especially to Easton vs. Scott, 1816, Cont. Elects., 272, 276; the Broad Seal case, 1840; Farlee vs. Runk, 1845-46; Monroe vs. Jackson, 1847-48; and the case of H. R. Kneas, district attorney, whose election was contested in 1851, on behalf of William B. Reed, in one of the judicial courts of Philadelphia.

This, then, is a constitutional right of the voter; but there is also another high constitutional right, pertaining not to one man only, but to thousands—the right to see that the purity and integrity of the elective franchise shall be preserved by a contest before the appropriate tribunal. It is a private right; it is much more a public right. And of what value is the vote by ballot, if the purity of the ballot-box be not made sure?

How, then, shall these two conflicting rights both be maintained? Only by permitting the voter to withhold his own testimony, and allowing the fact in dispute to be established by other proof.

It has, indeed, been doubted whether the constitutional right of secret ballot be not infringed by admitting any testimony to prove the fact. So it would seem to have been held by the Committee of Elections, in Easton vs. Scott; but the House, on motion of Mr. Webster, and after a long debate, in which the contrary doctrine appears to have been maintained by Randolph, Webster and Calhoun, recommitted the report,

with instructions to consider the testimony presented by the parties that point. And see Otero vs. Gallegos, ut supra.

upon

The same objection was urged also in the Philadelphia contested election of 1851, just cited; and, in deciding it, Judge KING said: "What is the object here? It is important to prove how a given individual voted. How is it to be proved? First, undoubtedly, if he chooses to waive the protection given by the constitution he may state it himself. But supposing it became of vital importance to prove how he voted, cannot that be established by clear and satisfactory testimony? He may have an interest in protecting his ballot; another may have an interest in showing what that ballot was. We are to preserve his rights by protecting him in the secrecy the law contemplates; but we are equally bound to serve the general community, or the individual, by enabling him to prove it. Where we resort to other testimony than the party himself, we go upon the principle of obtaining the best testimony the nature of the case will admit. In adopting this course, I don't understand myself as infringing upon the right of the citizen or the security of the secret ballot."-(Report, p. 17.) It has always been conceded, however, that the voter may waive his right and give evidence; but surely, if his own voluntary testimony can be received because it is a waiver of his right, the next best and least objectionable testimony, and upon the same principle, is his declarations. And I here remark, also, that if, as is claimed, all evidence except his own, which cannot be compelled, is secondary, then, as there are no degrees in secondary evidence, why, I ask, may not his declarations be received?

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And at this point I quote also from the opinion of the court in the case of LEWIS C. CASSIDY, district attorney, whose election was contested in Philadelphia, in 1857. Objection was made to certain evidence upon the ground that it "amounted to nothing more than hearsay," and that 'to admit the evidence of the witness would tend to allow him to prove admissions of parties who might have been legal voters, yet subsequent to the election might have declared, from motives better known to themselves, that they did not vote at all, or were not qualified voters.' JUDGE THOMPSON, overruling the objection, said, "that the question was very simple-that to comply with the notions of counsel would be to require of the contestants an absolute impossibility. It is alleged by the contestants that fraudulent votes were polled; and it is contended that the fact can be shown in no other way than by proving it by the persons themselves who perpetrated the fraud. Now, to compel them to prove this by them would effectually put a stop to the investigation. But the law does no such thing.”—(Report, p. 33.)

If it be said that the voter ought himself to be first summoned, so

that it may be seen whether he will not waive his privilege to be silent, I answer, that wherever a witness cannot be compelled to testify, the party is under no obligation to call him. It was expressly so decided by the Supreme Court of the United States in Reyburn's case; 6 Peters Rep., 352, 367. JUDGE THOMPSON, delivering the unanimous opinion of the court, said: "A subpœna to compel attendance as a witness would have availed nothing, and the law does not require the performance of an act perfectly nugatory. But suppose Chase (the witness) had been within reach of a subpoena, and had actually attended the court, he could not have been compelled to produce the commission, and thereby furnish evidence against himself."

The same doctrine prevails in settlement cases also, where it is held 'not necessary first to call the inhabitant (of the parish) and show that he refused to be examined, in order to admit his declarations;” 1 M. & S., 637; 10 East., 395; Greenl. Ev., § 153, 175.

So far I have argued this case as I would have argued had it arisen for the first time in the course of ordinary litigation in a court of common law, the only parties to it being the returned member and myself. Even there, with great confidence, I affirm that the evidence would be received as a new application merely of very ancient doctrines.

But I now submit that this question is not to be decided upon the strict common law rules of evidence applied in private litigation; that the real parties in this contest are the people, or certainly the electors of the district; and that the parliamentary, congressional, and legislative precedents for a great number of years, are clear and uniform in favor of the admissibility of this evidence. All this, however, I leave upon the oral and written arguments heretofore submitted upon this subject to the committee.

SPEECH ON THE OHIO CONTESTED ELECTION,

In the House of Representatives, May 22, 1858.

Mr. SPEAKER: Unused to this presence, and limited by your rules to one hour, I beg, as a special indulgence from members of this House, the liberty to proceed without those interruptions which custom seems to approve in ordinary debate. When the time allotted me shall have expired, I will readily and with pleasure reply to such interrogatories as, in that same spirit of courtesy and candor which has generally been extended to me here throughout this investigation, may consistently with your rules be propounded by any member of the House.

I appear in this forum to-day, Mr. Speaker, as the Representative of nearly ten thousand of the qualified electors of the third congressional district of Ohio; and not in my own right. I propose to speak in their name and in their behalf alone; and trust that, without suspicion of affectation, but solely for convenience and to avoid continual personal allusion, I may be permitted to refer to myself in the third person and as the contestant in this controversy, and to speak as one having no individual interest in it.

Within the time limited it is not possible to discuss, in a manner satisfactory to any one, either the facts or the question involved in this controverted election. The facts, indeed, I do not propose to consider at all. They have been found fully in the report of the gentleman from Mississippi, (Mr. LAMAR.) If any member of the House be not satisfied with that finding, it is his right, as it is also his duty, to investigate them for himself; but, till called in question, I shall assume them precisely as found in that report.

Resolved, Mr. Speaker, to confine myself wholly to those matters which appear in the papers, testimony, and reports in the case, and which are essential to its just decision, and to avoid all allusion to whatever lies outside of these limits, and is not pertinent to the issue in the cause, I propose, briefly, and imperfectly of course, within the time allowed, to speak to two points mainly, which are presented for the judg ment of the House. . And I select these because, upon the face of the adverse reports, if either of them be resolved in favor of the contestant, he is entitled to the seat here in controversy.

The first of these points-relates to the admissibility of testimony affect ing a number of votes, sufficient, even upon the showing of those reports, not only to turn the scale against the returned member, but to elect the contestant. I refer to the DECLARATIONS or admissions by voters as to their qualifications, and as to the candidate for whom they voted. Many of the votes here controverted, some upon both sides, depend in whole or in part upon testimony of this character. In a large 'majority of cases indeed where it is offered, there is other and corroborating proof. But twelve votes on part of the contestant depend solely upon this sort of testimony; and of these nine only are allowed in the report of the gentleman from Mississippi (Mr. LAMAR):—which report finds also a majority in favor of the contestant, without these nine, and upon what is regarded as clear and satisfactory proof. The adverse reports reject all these twelve votes, as also many others-in all to the number of more than thirty-where these declarations are offered along with direct or circumstantial proof. But upon the face of these reports, if this evidence be admissible, the contestant is entitled to the seat.