But thus broadly stated this is not a sound rule. This will be apparent upon a moment's reflection. Suppose there are ten counties in a congressional district, and there is in nine of them such violence at the polls, as to destroy the fairness and freedom of the election; can it be claimed that the one peaceable county should choose a representative for the ten? Clearly not. The true principle is, that if the great body of the electors are prevented, without their fault, from participating in an election, it is not a valid election. Where the majority voluntarily remain away from the polls, the minority, however small, who do vote, may elect, but not so where the majority are kept from the polls by violence and intimidation.

§ 427. The rule laid down, in the cases just cited, cannot be said to have received the unqualified sanction of the House of Representatives, though in some of the cases the recommendations of the committee were adopted. The House soon found that under the operation of the rule, persons were likely to be seated in that body, who were not the choice of the majority. In the case of Sypher, supra, the report of the committee, which was based upon this rule entirely, was overruled, and the election declared to be null and void, for the reason, as we learn from the debate, that the parishes rejected for violence, contained a majority of the voters of the district. The case of Hunt vs. Sheldon, supra, is regarded as the leading case favoring the rule, but it was claimed by some, at least, of the members who voted for that report, that notwithstanding the violence, there was a peaceable election in the larger

and more populous portions of the district. In the course of the debate in Sypher's case, Mr. Garfield, of Ohio, explained his vote in Sheldon's case, as follows:

'Mr. Garfield, of Ohio. When the case of Hunt vs. Sheldon, was before the House, I stated the ground on which I acted. It was that in nine hundred and ninety-nine parts, out of one thousand of the territory embraced by the district, there was no disturbance, and among the majority of the population, as exhibited by the census report, there was no disturbance. I considered, therefore, that a very large proportion of the territory, and a majority of the population of the district, had a peaceable election, and that, therefore, we should not throw the election out."

And it is manifest, not only from the debate, but from the action of the House, in voting down the report in Sypher's case, that the decision in Sheldon's case was not intended as an endorsement of the doctrine that the peaceable precincts may elect, without regard to their number or population.

§ 428. It was claimed by those who sustained the rule, as it was laid down by the committee in Sheldon's case, that it was necessary for the protection of the freedmen of the South, who were, as it was claimed, "peculiarly exposed to violence and intimidation by the former master class, prone by habit and inclination to domineer over their former slaves." It may be hoped that the very anomalous condition of things which existed in that region at the time of the elections, which gave rise to the reports under consideration, was transient, and has already or will

soon pass away forever. At all events, it is by no means safe to establish a rule applicable to all cases and for all time, and capable of incalculable mischief in its general and universal application, in order to provide for a few exceptional and extraordinary cases. Nor can it be conceded that this rule was necessary, even for the protection of the freedmen. The best protection against violence is the enactment and enforcement of laws for its punishment. Beyond this, it is enough that the community in which it occurs to such an extent as to prevent the holding of free and fair elections, should go unrepresented, and if need be, suffer the rigors of military rule until they decide to obey the laws and appreciate the blessings of freedom for themselves and for all oth

ers.

429. It would seem, therefore, that the following rules, if administered in the light of the general principles, which have now been stated, will afford a safe guide:

1. If the violence and intimidation has been so extensive and general as to render it certain that there has been no fair and free expression by the great body of the electors, then the election must be set aside, notwithstanding the fact that in some of the precincts or counties there was a peaceable and fair election.

2. Where there has been an election, embracing a number of counties or precincts, in which there has been violence and intimidation, enough to exclude from the count one or more precincts, or voting places, but not enough to destroy the freedom and fairness of the election, as a whole, such violence

will not invalidate the election, nor affect the result of it, unless it be shown affirmatively, that but for it, the result would have been different.

3. The question in each case must be, has the great body of the electors had an opportunity to express their choice, through the medium of the ballot, and according to law, and this question must be decided in the light of all the facts and circumstances shown in the evidence. If some of the precincts or voting places are necessarily thrown out of the count, because of unlawful disturbances or violence, it will be necessary to determine from the evidence, whether their exclusion necessarily destroys the fairness and freedom of the election, as a whole.

§ 430. It was held in State vs. Mason, [14 La. An., 505,] that a petition which demanded that an election be set aside, because of violence and intimidation at the polls, must allege that a sufficient number of voters were prevented from voting, to have varied the result of the election. The Court observes: "It is evident there would be no reason to contest an election, if the result could not be changed, and such would be the event, unless a number of voters had been prevented from voting, sufficient to have varied the result. And to the same purport is Augustin vs. Eggleston, [12 La. An., 367.]

§ 431. Where it is alleged that a large number of persons have been deterred from voting, by violence and intimidation, the testimony of those persons, or some of them, should be produced. The opinions and impressions of others is not sufficient. Upon this point the report in Norris vs. Handley, 42d Congress, has this language:

"It would seem that if over two thousand electors were deterred from voting, by violence, threats, or intimidation, some of these electors could be found to come forward and swear to the fact. Your committee think that it would establish a most dangerous precedent, to allow a fact of this character, so easily established by the direct and positive testimony of so many witnesses, to be proven solely by hearsay and general reputation. We have not forgotten nor overlooked the fact that the same state of things which would make men afraid to vote for a particular party might also make it difficult to secure testimony in behalf of that party. But in many parts of the district where testimony was taken there is no pretense that witnesses were intimidated; and, beside, if the contestant had shown, to the satisfaction of the House, that witnesses needed the protection of the Federal Government in order to be safe in testifying fully and freely, that protection would have been afforded at any cost."

§ 432. The freedom of elections is of the utmost importance. The law justly regards all attempts to interfere with the electors in the peaceable and quiet exercise of their rights, or to improperly influence them against their judgment or desire, as a crime, and in addition to the ordinary punishment of the crime of bribery of an elector, it is provided by the constitution of many of the States that whoever shall be convicted of that crime shall forfeit the right to any office of profit or trust under the State. (See the Constitutions of Maryland, Missouri, New Jersey, West Virginia, Oregon, California, Kansas, Texas, Arkansas, Rhode Island, Alabama, Florida,