with it, of free government all over the globe, and in all coming time. If any one State of this Union may disregard or annul any one part of the Constitution of the United States, or any one law in pursuance of it, because in its judgment it is harsh, cruel and unjust, any other State may, in like manner and upon like pretexts, disobey and set at naught any other part of this same Constitution, or any law under it. If the people, or part of the people, of Ohio may prohibit or practically prevent the execution of the Fugitive Slave Law within her limits, the people, or a part of them, of South Carolina, may also annul and disobey the acts to abolish the slave trade; and by State statutes and State process, by habeas corpus and replevin, through her ministerial officers and her courts, vex and harass, and finally beat down and render powerless the Judiciary of the Union. How long, then, can the governments of either the States or the United States endure; and what,.above all, are they worth while they do endure? The end of these things is death.

But I am confident that this Court is prepared, that the whole Government of the United States is prepared to meet this issue just as it is presented. And I tell Mr. Attorney-General, and through him the Executive of the State, whose vain defiance he has this day borne here to this presence, that it is not to be awed by threats, nor to be put down by denunciation, nor to be turned aside from its firm purpose to enforce its laws and the process of its courts, in any event, at all hazards, and without respect to persons or to States, whether those States be Rhode Island or Ohio. And whenever this Court or any other court of the Union shall have judicially ascertained and declared the rights and powers of the Government to execute its process in any pending case, I know that the Executive of the Union stands prepared faithfully, fearlessly, and sternly, if need be, and by the whole power of the Government, to preserve, protect and defend the Constitution from all the assaults of its enemies.

ARGUMENT

In reply to the counsel for the Returned Member, in the Contested Election Case of Vallandigham and Campbell, before the Committee of Elections, February 27, 1858.

I. AS TO THE SUFFICIENCY OF THE NOTICE OF CONTEST.

The specific objection urged is, that the names of the illegal voters are not set forth.

I answer, that even prior to the act of 1851, in a majority of cases, this had not been required; that the act is silent upon the subject, substituting a provision that ten days' notice of the names of the witnesses proposed for examination shall be given; that the language of the act is specify particularly the grounds upon which he relies in the contest ;” that grounds are one thing, and names of voters quite another; that every "ground" of illegality, known to the Ohio constitution and statutes relating to elections, is set forth, and cases under nearly, all of them established by the testimony, and that there are many obvious reasons against requiring the names of illegal voters to be set forth in the notice of contest, or the answer; and among them this: That as the notice and answer cannot be renewed or amended, the parties would be precluded from proof of any illegal votes discovered after the thirty days limited in either case.

I answer, further, that the returned member himself has not, in his answer, set forth the name of so much even as oné illegal voter.

As to precedents: fifteen cases, including those of the present session, have arisen under the law; nine of which, excluding the one now in hearing, were contested upon the ground of illegal voting, and yet in not one have the names of the illegal voters been set forth. Twice the objection has been directly made and overruled. In the very first case under the act, Wright vs. Fuller, 1851-'52, it was so held, (House Report, No. 136;) and yet again in Otero vs. Gallegos, 1855-'56. Objection in this case had been taken, in the answer of the returned delegate; to the omission of the names of the illegal voters. Yet the committee said: "The notice was quite sufficient to authorize the taking of the testimony. No such objection was made by the sitting member or his counsel at the time of taking the depositions; on the contrary, he appeared and cross-examined the witnesses without any objection whatever; and if he had no notice at all, but had appeared and cross-examined, he would have been estopped from setting up the want of notice."-(House Reports, 1855-'56, vol. 1, No. 90, p. 2.) Three times, also, it has been urged in contested elections in Philadel

phia; Lelar's case, 1846; Kneas's case, 1851; Cassidy's case, 1857; and each time overruled by the court.

If there be any, the remotest resemblance between the notice in this contest and the one in Archer vs. Allen, in the last Congress, it might be an ingenious though perplexing intellectual exercise to point it out; yet even that notice the majority of the committee held sufficient.

II. AS TO THE VALIDITY OF THE ELECTION IN THE SECOND WARD, DAYTON.

I leave this upon the argument heretofore submitted, adding the case of Otero vs. Gallegos, just cited, wherein the prior congressional precedents are referred to and approved.

I remark also as to the case so strongly relied on by the counsel for the returned member, The People vs. Cook, 14 Barb., 245:

1. That that was not an ordinary contested election, but a proceeding in quo warranto known to the common law, the parties upon the record being the State and the incumbent; and it is expressly said by one of the judges (p. 326) that "the result of an election, when controverted in court, is like a judgment sued upon. We have no power to reverse it for errors in conducting it, and thus give those concerned in it a retrial." If this be the doctrine in contested elections before Congress, it is time, after the lapse of seventy years, that it should begin to be known and acted on. It is contradicted by every precedent from 1789 to this day.

2. There is a broad distinction, wholly overlooked by the court, between the want of authority on the part of an inspector of elections to act as such, and a mere irregularity by him in conducting it. Yet the omission to take the oath of office has always, in Congress, been held a fatal defect. The objection made in the case from Barbour was to the form only of the oath. It was an apex juris not fit to be urged; for if a Jew be sworn on the Gospels, and testify falsely, he may be convicted of perjury.-(1 Greenleaf Ev., § 371.)

But the case is chiefly remarkable for a most extraordinary misapplication or perversion of the rule that the acts of an officer de facto are good and valid as regards the public and third persons. It may, indeed, be sound and pertinent in proceedings on quo warranto, but never, never in an ordinary contested election before a legislative tribunal ; otherwise, every intruder into the responsible office of inspector of elections would become invested at once with authority which could not be questioned elsewhere. By violence alone, and that at once and at the polls, could the remedy be applied and the intruder ousted. If this is to be the doctrine in cases like this, then, in a little while, at every hustings, the only struggle will be to secure at the outset, and by force or

fraud, the judges of election; and in such a conflict, not the will of the people, but the strength or cunning of the party first upon the ground, must prevail.

III. AS TO THE NON-PRODUCTION OF THE POLL-BOOKS, OR CERTIFIED COPIES OF THEM, TO PROVE THAT THE ALLEGED ILLEGAL VOTER DID VOTE.

I answer, first: That the poll-books may be the best evidence to prove that a name corresponding with that of the person challenged is upon the list of voters; but they do not prove that that identical person voted. Suppose the name of John Smith to be found upon them, and it is proved that a John Smith living within the same precinct or township was not entitled to vote; non sequitur, that the John Smiths are the same. There must be in every case some parol proof, therefore, that the person challenged did vote. The production of the list is, at best, but corroborative or cumulative evidence. The testimony of John Smith that he did vote, is better evidence of the fact than the production of a list containing the name of one John Smith.

It is said that the law requires the list to be kept, and that, therefore, the fact can be proved only by the production of the record. Non sequitur, again. The fact is still "did the John Smith, who is challenged, vote at the election?" and not "is the name of one John Smith upon the list of voters ?" And, accordingly, it has been repeatedly held that where registers of marriage, birth, death, and the like, are required by the law to be kept, it is not necessary, nor yet sufficient, to produce them even in a criminal prosecution.-(1 Greenleaf Ev., § 86; 9 Mass., 493; 11 Mass., 92; 3 Har. & McH., 393; Rus. & Ry., 109.) So, also, that a man was elected to and holds a certain office may be proved by parol; and I concede that the fact that no name corresponding to that of the person alleged to have voted appears upon the poll-list, is presumptive evidence that no such person did vote.

2d. As to the congressional precedents, the point has never been made or decided, so far as I have been able to find, and the usage has not been uniform. Proof upon this point, such as is produced here, was repeatedly received in the Broad Seal case, as in the instance of the vote of Ezekiel Patterson, a colored person. "Jacob W. Davis, a witness sworn on the part of John B. Aycrigg and others, saith: I am clerk for the township of Mansfield, and was in 1838; I have the polllist here; the names of Isaac N. Zerwilliger, Charles T. Poole, James Wamsly, William V. Schureman, and Christopher Patterson, usually called Eke, (on the assessor's duplicate it is Ezekiel,) are on the poll-list." -(3 House Rep., 1839, 1840, No. 541, p. 95; and see the Report passim.) And as to declarations of a person that he had voted, the poll-list not being produced, and no proof of its contents given, and no

other evidence of the fact of voting, except his own, declarations proved by third persons. (See p. 73 of Report, and 23 of the Journal of the Committee.)

As to the only precedent cited by the counsel, Otero vs. Gallegos, pollbooks were produced from only three counties. From six counties there were none introduced, and yet a part of the testimony related to illegal votes cast in those counties.

IV. THAT THE ABSTRACT OF VOTES IN THE DISTRICT AT THE ELECTION, OR COPY OF THE RETURNS, WAS NOT OBTAINED OR TAKEN" WITHIN

THE SIXTY DAYS LIMITED.

I answer, 1st, that it is at least doubtful whether it be my place to produce it at all. It is no part of my case. I claim nothing under it. Upon its face it shows nineteen majority against me, and by so much would diminish my vote as it appears upon the testimony. In the first case under the law, Wright vs. Fuller, 1851, it appears from the report of the committee that it was the sitting member who produced the returns before them.-(House Report No. 136, page 1; and see Munroe vs. Jackson, House report, volume 2, page 403.)

But what is the true construction of the act of 1851? I maintain that the restriction in the ninth section applies solely to oral testimony. I argue this, 1st, from the language of the restriction: "No testimony shall be taken after sixty days," &c. Testimony means the declaration or affirmation under oath, of a living witness.-(Webster's Dict. ; 2 Bouvier's Law Dict.; 2 Burrill's Law Dict.; 1 Greenleaf Ev., §§ 1, 307, 308; 2 Daniel Chy. Prac., 1003, 1030.) The distinction is not between testimony and evidence, but between testimony and documentary evidence. 2d. From the context. The entire act, except the first and second sections, refers exclusively to the examination of witnesses. The eighth section provides for the production of documentary evidence in connection with the testimony of witnesses. Examples of this may be found on pages 53 and 59 of the printed testimony. So, too, under the act of January 23, 1798, of which the statute of 1851 is but almost a literal transcript, the House, by resolution on the 5th of the June following, provided for the introduction of documentary evidence during that Congress, as a matter not included within the law. (Journal, page 323; and Judge Strong, the au

Cont. Elec., 16.) 3. From the object of the act. thor, or at least reporter of the bill, said, during the debate upon it: "The testimony is wholly that of witnesses."-(Cong. Globe, 1850-251, page 109.) 4. By analogy to the chancery practice. There, although no testimony can be taken after "publication," yet documentary evidence, even when a witness is to be examined along with it, may be introduced at the hearing.