quite likely to be in a case where the majority should consider it a construction too narrow and strict to meet the ends of substantial justice. An answer will of course operate to waive any defect in the service of the notice, though perhaps not in the notice itself.

§ 359. In the case just cited it was further held that the rule that a failure to answer is a confession of the allegations contained in the complaint, will not be applied to a contested election in the House of Representatives. The reason is that the inquiry is of a public nature, and not a case involving private rights alone. Upon this point the committee in the report say:

"The contestant claimed that the sitting member, by failing to answer, must be taken to have confessed the truth of the allegations in the notice. The statute requires of the sitting member, within thirty days after the service, to answer such notice, admitting or denying the facts alleged therein, and stating specifically any other grounds upon which he rests the validity of his election." If the contestant and the sitting member were the only parties interested in the representation of this district, it might not be unfair to hold that the sitting member, upon service of notice upon him according to law must answer as the law requires, or by neglect or refusal, be taken as confessing the truth of the allegations made in conformity to law against his right to his seat, and abide the judgment of the House upon such confession. But the contestant and the, sitting member are by no means the only parties interested in this representation. The electors of

the district, each and every one of them, have a vital interest in that question, and no one of them can be precluded, by any laches not his own, from insisting that the choice of the majority shall be regarded. No confession of the sitting member, however it might bind him personally, can place the contestant in the seat, unless he is the choice of the majority, nor deprive that majority of its rightful representation. The sitting member may well be deprived, by his neglect to answer, of reliance upon "any other grounds upon which he rests the validity of his election," for he has never given notice of any such grounds; but the committee are of opinion that the House should require proof that the sitting member has not, and that the contestant has, a majority of the legal votes before unseating the one and admitting the other, however the sitting member may have seen fit to conduct his own case in a contest.'

§ 360. A similar ruling was made in the recent case of Sheridan vs. Pinchback, (43d Congress.) It is very clear that the usual judgment by default, such as would follow a failure to answer in the courts of the country, should not be rendered in a case of contested election in the House of Representatives. If the sitting member has not answered he may well be regarded as estopped from taking testimony or proceeding with the contest, until he shall have, with the leave of the House, filed his answer, but the House will not take the allegations of contestant as true, because they are not answered. In the case of Sheridan vs. Pinchback, the committee say, that the case of the contestant where the sitting member does not answer, is no stronger than if no one were

contesting his right, and the committee had been ordered by the House to inquire whether he was elected. This distinction between contested election cases and other suits grows out of the fact that in the former the people have an interest so vital and important, as to forbid the parties to the record to conclude their full investigation and decision, by any compromise or other action of theirs.

§ 361. During the progress of the rebellion, numerous cases arose in which it was alleged that members of Congress elect, were not entitled to seats because of disloyalty and inability truthfully to take the oath prescribed by the act of Congress, of July 2d, 1862, and known as the test oath. The rule which the House adopted for the determination of these cases, is stated as follows in the Kentucky cases. (2 Bartlett, 368):

"While the committee entertained no doubt that it is the right and duty of the House to turn back from its very threshold every one seeking to enter who has been engaged in armed hostility to the government of the United States, or has given aid or comfort to its enemies during the late rebellion, yet we believe that in our government the right to representation is so sacred that no man who has been duly elected by the legal voters of his district, should be refused his seat upon the ground of his personal disloyalty, unless it is proven that he has been guilty of such open acts of disloyalty that he cannot honestly and truly take the oath prescribed by the act of July 2, 1862; and further, that the commission of such acts of disloyalty to the government should not be suspected merely, but should be proven by clear

and satisfactory testimony, and that while mere want of active support of the government, or a passive sympathy with the rebellion, are not sufficient to exclude a person regularly elected from taking his seat in the House, yet whenever it is shown by proof that the claimant has, by act or speech, given aid or countenance to the rebellion, he should not be permitted to take the oath, and such acts or speech need not be such as to constitute treason technically, but must have been so overt and public, and must have been done or said under such circumstances, as fairly to show that they were actually designed to, and in their nature tended to, forward the cause of the rebellion."

The practice in these cases was to consider the question of the loyalty of the member elect, before allowing him to take his seat and be sworn, in all cases where charges of disloyalty and of inability truthfully to take the oath, were made to the House by a responsible party—as for example, by a member or member elect of the House.

§ 362. Record evidence is of course admissible on the trial of a case of contested election, in the House of Representatives of the United States, to the same extent and for like purposes as in Courts of Justice, and in the trial of ordinary civil actions. The question may be raised whether evidence of this character can be offered for the first time on the trial? It may be said that it should be produced before an officer taking testimony, in the presence of the opposite party, and put in evidence within the time required for completing the taking of the testimony in the case. And this is undoubtedly the cor

rect practice, for if evidence of this character is to be used, it is but fair that the party against whom it is to be offered should have notice of it in time to offer evidence in response to it. It may therefore be laid down as the correct rule upon the subject, that a party desiring to use a record as evidence in such a case, shall at a time and place, which has been fixed for taking testimony, and of which due notice has been given, offer such record or a duly authenticated copy thereof, in evidence, and cause it to be spread upon the record. It is impossible here to designate the particular documents, papers or books, which are included in the term "record evidence," or to specify the particular mode of authenticating copies thereof, so as to make them admissible. These must depend largely upon local customs and laws. It is perhaps enough to say that any record, or certified copy, which would be admissible as evidence in the courts of justice of the country, where a similar issue is involved, may be admitted in a contested election case, in the House of Representatives.

§ 363. A statute of Ohio required tally sheets to be kept, and the board of canvassing officers were required to certify and return the vote "as shown by the tally sheets." In Follett vs. Delano, which arose under this statute, it was held that although the return might be so defective as to be unreliable, as evidence, yet if it did not appear affirmatively, that the tally sheets were also defective and unreliable, it must be presumed that they were correct. And it was, therefore, the duty of the contestant in order to make out his case, to put in evidence both the returns and tally papers, and show that neither