1804. 8th CONGRESS, 1st SESSION. CASE XXI. DUNCAN MCFARLAND VS. SAMUEL D. PURVIANCE, [The neglect or refusal of the inspectors or clerks of elections, to comply with the requisitions of the election laws of the State, as to taking the oaths prescribed, &c. vitiates the election. It appears also to have been conceded that the election in one county of a district being void, does not vacate the seat of the sitting member, having the majority in the other county. Notice to take testimony, must be served on the opposite party, agreeably to law, (see acts of Congress of 1797, chap. 25, and 1800, chap. 28,) and the depositions reduced to writing, and signed as therein required, or they will be rejected on the hearing. In North Carolina there may be more votes than taxable polls, since those who formerly paid taxes, and had the right of voting, appear to retain that right, though they have ceased to be taxed.] On the 8th of February, 1804, allegations were presented to the House by Duncan McFarland, of North Carolina, complaining of the undue election and return of Samuel D. Purviance, one of the members returned from that State, and on the 29th day of February, the Committee of Elections, to whom the petition and papers, and other communications, had been referred, made the following report: "That at an election held at the times and places direct- Report of the ed by a law of the State of North Carolina, for the election Committee of Elections. of a member to serve in the eighth Congress, for the seventh district of said State, among other complaints alleged by Duncan McFarland, it is proved by testimony, legally taken in presence of William McCarroll, the voluntary agent of Samuel D. Purviance, that, at the elections held at the dif ferent election districts into which the county of Montgomery is, by law, divided, the inspectors and clerks of the elections held at the several election divisions of the said county of Montgomery not only neglected, but refused,* to take the oath obliging them to act with justice and impartiality, as directed by an act of Assembly of North Carolina, passed in the year 1802, notwithstanding that they were thereto required by Duncan McFarland, at the opening of the election; therefore, the committee, without deciding on the other complaints made against the said elections, consider the neglect and refusal to take the oath prescribed by law as sufficient ground to set aside the election held for the said county of Montgomery. "That, with respect to the elections held at the election districts in and for the county of Cumberland, of the con * See case of McFarland vs. Culpepper, where the same point is decided. 1804. 1st SESSION. gressional district aforesaid, a notification was given, accord8th CONGRESS, ing to law, by William Cochran, Esq., on the application of Duncan McFarland, on the 5th day of October, 1803, to Report of the Samuel D. Purviance, informing him of the times and places Committee of where depositions were to be taken, in support of the comElections. plaint of Duncan McFarland against the election of the said Samuel D. Purviance. "That, agreeably to the notification, William McCarroll attended, and acted as the voluntary agent of Samuel D. Purviance; that, from the examination taken on this notification, sufficient cause does not appear to change the state of the poll, so far as to set aside the elections held in and for the said county of Cumberland. "That all the witnesses not appearing agreeably to the said notification, a second notification was left at the house of Samuel D. Purviance, for the said Samuel D. Purviance, or William McCarroll, directed to said McCarroll, his friend, on the 2d of November, 1803, appointing another examination of witnesses on the 22d, 23d, 29th, and 30th days of that month. Of this notification, Samuel D. Purviance, then in Congress, was not informed until the 23d, viz. the day after that on which the examination was to commence, and he had authorized no agent; and neither William McCarroll, nor any other person, attended as his voluntary agent. That, on the 1st day of December, a third notification was left at the house of Samuel D. Purviance, for the said Samuel D. Purviance, or William McCarroll, his agent, or friend, directed to the said William McCarroll, to attend on the 9th and 10th days following, to the further examination of witnesses, as aforesaid; but the notification did not, or could not, reach Samuel D. Purviance, then in Congress, in due time; and neither William McCarroll, nor any other person, in behalf of Samuel D. Purviance, attended. "It further appears to the committee, that though various irregularities and abuses are set forth in the depositions taken, agreeably to the second and third notifications, and alleged to have been practised at the said election, yet that Samuel D. Purviance had not such notice as put it in his power to attend the said examination of witnesses, or to appoint an agent so to do. "It further appears, from the documents, that depositions were taken, and examinations made, by magistrates who were not named in the notification issued by the magistrate to whom the application was made, and without a certificate of the matters and proceedings had by him in that behalf, as the law enacted by Congress provides. It also further appears that part of the testimony so taken is in the handwriting of Duncan McFarland, one of the parties, and signed by the mark of the deponent, inconsistent with the act aforesaid, which provides that the magistrate shall cause the examination to be reduced to writing, in the presence of the parties, or their agents; which the committee are of opinion does not authorize the writing the examination by the parties themselves.* "Influenced by the aforementioned facts and circumstances, the committee are of opinion that the aforesaid testimony respecting the election held in and for the county of Cumberland, cannot be admitted or acted on by the House. 1804. 8th CONGRESS, 1st SESSION. "By comparing the certified records of the lists of taxables in said county, with the list of votes given at the election now contested, it appears that the number who voted exceeds the number of taxables in the county, viz. the number of persons who voted is 1,159, and the number of free taxable polls taken from the last returns of taxables is 1,117; but the committee discover that the tax lists of any year, Tax lists of N. agreeably to the laws of North Carolina, are not a perfect Carolina not a record of those who are entitled to vote, because citizens perfect record who, at any time, had formerly paid taxes, by the laws of tled to vote. that State, appear to the committee to continue to enjoy the privilege of voting, though they might, for many years, have ceased to pay taxes. "Therefore, your committee are of opinion that there is not sufficient legal testimony to set aside the election of Cumberland county, so as to vacate the seat of Samuel D. Purviance." of those enti This report was referred to a Committee of the Whole A second meHouse, who, on the 6th of March, 1804, were, on motion, morial presentdischarged from the further consideration thereof, and the tioner was ne ed by the petisubject appears not to have been acted on again during that ver finally actsession of Congress. At the succeeding, to wit, the second ed on, and the session of the eighth Congress, Duncan McFarland again sitting member consequently presented his memorial to the House, praying that the House retained would "take into consideration, and ultimately decide upon seat. the subject-matter of his memorial, presented the 8th of February last." This new memorial was referred to the Committee of Elections, but it does not appear that any report was ever made thereon. The law prescribing the mode of taking testimony in cases of contested elections is no longer in force. See ante, p. 16. his 1804. 8th CONGRESS, 1st SESSION. Report of the Elections, CASE XXII. SAMUEL J. CABELL VS. THOMAS M. RANDOLPH, of Virginia. [It is incumbent on a person contesting the election of a sitting member, to be prepared, within a reasonable time, to exhibit, in legal form, the evidences on which he intends to rely in support of the allegations contained in his petition.] On the 18th October, 1803, the memorial of Samuel J. Cabell, of Virginia, was laid before the House, complaining of the undue election of Thomas M. Randolph, of that State, and on the 9th day of March, 1804, the Committee of Elections made the following report, to wit: "That having examined the depositions and papers reCommittee of ferred to them, they discover that the land lists of all the counties of which the district is composed are wanting, and the lists of voters of all the counties but one (viz. Fluvanna county) are also wanting. The committee also inform the House, that, by letters from the memorialist of the 13th of October and 3d of November, the committee were requested not to proceed until he could procure and transmit further documents. That by another letter from the memorialist, of the 5th of January, accompanied with a protest against documents then before the committee, he again made a request that the committee would defer taking the subject Notice given to under consideration. Afterwards the memorialist was notipetitioner of a fied, by the direction of the committee, to be prepared, and to time for hear attend the committee himself, or by his agent, in order to obing, and he required to sub-tain a decision. He has not complied with the notification, stantiate his al- and the committee observe no facts, from examining the legations. documents submitted to them, sufficient to invalidate the claim, or set aside the return of Thomas Mann Randolph. Sitting mem- "Therefore, the committee are of opinion that Thomas ber entitled to Mann Randolph, returned as a member for the congressional district composed of the counties of Albemarle, Amherst, and Fluvanna, in the State of Virginia, is entitled to his seat in the House." his seat. This report was ordered to lie on the table; and no further proceedings took place upon it. [Where the Legislature of a State have failed to "prescribe the times, places, and manner" of holding elections, as required by the constitution, the Governor may, in case of a vacancy, in his writ of election give notice of the time and place of election; but a reasonable time ought to be allow. ed for the promulgation of the notice. In this case the notice was short, (in effect only two days,) yet as the time prescribed was a day fixed for a general election, to wit, of electors for President and Vice President, it was held to be sufficient.] On the 30th of November, 1804, a petition, signed by sundry citizens of Washington county, in Pennsylvania, was presented to the House, alleging an illegal election and return of John Hoge as a member from that State, who claimed a seat as the successor of William Hoge, resigned. On the 19th of December following, the Committee of Elections, to whom it had been referred, made their report, and put the House in possession of the facts on which the petitioners rested their case. It is in the following words, to wit: "That William Hoge, member of the House of Repre- Report of the sentatives for the eighth Congress, having, by letter to the Committee of Governor of the State of Pennsylvania, dated the 15th of Elections. October, resigned his seat in Congress, the Governor, in pursuance of the provisions made in the second section of the first article of the constitution of the United States, issued a writ of election to supply the vacancy which had thus taken place. That the said writ was issued on the 22d day of October, and the election directed to be held on the 2d day of November, eleven days after the date of the said writ: that the writ was brought by the mail to the prothonotary's office in Washington county on the 30th of October, but not proclaimed by the sheriff till the 31st. "It appears to the committee that though, by the second section of the first article of the constitution of the United States, it is made the duty of the Executive authority of the respective States to issue writs of election to fill vacancies, yet, by the fourth section of the said article, it is made the duty of the Legislature of each State to prescribe the times, |