JOHN TALIAFERRO US. JOHN P. HUNGERFORD, of Virginia.

[In Virginia the land list of the year prior to an election is a proper test, as prima facie evidence of the qualified voters in a county, but it is not conclusive. Quere, as to the time allowable for taking testimony.]

NOVEMBER 7, 1811.

The petition of John Taliaferro, with documents, was referred to the Committee of Elections. On the 21st November, 1811, the committee reported,

Report of the That, at the last general election in Virginia for RepresenCommittee of tatives to Congress, the said John Taliaferro and John P. Elections. Hungerford were opposing candidates in the district composed of the counties of Westmoreland, Richmond, Lancaster, Northumberland, King George, and Stafford. From the polls of the several counties the sitting member appears to have obtained a majority of six votes in the district, and he was accordingly returned as elected.

That, of the polls taken for the county of Westmoreland, John Taliaferro had 37 votes, and John P. Hungerford 316 votes; and that, in comparing the polls with the land list of 1810, and taking the list as a test, it appears to the committee that 9 persons who voted for the former, and 162 persons who voted for the latter gentleman, were not qualified to vote. That, of the polls taken for the county of Richmond, Mr. Taliaferro had 103 votes, and Mr. Hungerford 130 votes, and that, on such comparison as aforesaid, 12 persons who voted for the former, and 38 persons who voted for the latter gentleman, appear not to have been qualified

voters.

That, of the polls taken for the county of Lancaster, Mr. Taliaferro had 122 votes, and Mr. Hungerford 96 votes, and that, on such comparison as aforesaid, 20 persons who voted for the former gentleman, and 20 who voted for the latter, appear not to have been legally qualified voters.

That, of the polls taken for the county of Northumberland, Mr. Taliaferro had 228 votes, and Mr. Hungerford 76 votes, and that, on such comparison as aforesaid, 35 persons who voted for the former gentleman, and 1 person who

voted for the latter, appear not to have been legally quali- 1811. fied voters. 12thCONGRESS, 1st SESSION.

That, of the polls taken for the county of King George, Mr. Taliaferro had 114 votes, and Mr. Hungerford 125 votes, Report of the and that, on such comparison as aforesaid, 38 persons who Committee of voted for the former gentleman, and 50 who voted for the latter, appear not to have been legally qualified voters.

That, of the polls taken for the county of Stafford, Mr. Taliaferro had 159 votes, and Mr. Hungerford 26 votes, and that, on such comparison as aforesaid, 29 persons who voted for the former gentleman appear not to have been legally qualified voters.

The result of such an examination and comparison is, that, deducting for both polls, the persons challenged who do not appear to have been qualified to vote according to the land lists of 1810, Mr. Taliaferro has a majority over Mr. Hungerford of 121 votes.

The committee further report that, on the 7th day of May last, the petitioner gave notice to the sitting member of his intention to contest the election, on the ground that the former had a majority of the legal and qualified votes, and that such notice was accompanied by a list of the persons challenged by the petitioner, with his objections to them. On the 28th of May, the sitting member furnished the petitioner with a list of the persons challenged by him, setting forth his objections against such voters. These lists contain as well the names of the persons whom the committee find not to be on the land lists, as others who are challenged by the parties for want of the freehold qualification, and for other

causes.

That, on the 27th day of September last, the petitioner gave notice in writing, subscribed by him, to the sitting member, that testimony would be taken in relation to the present controversy, to be used in the decision of the same, at King George Court-house on the 10th, at Westmoreland Courthouse on the 17th, and at Richmond Court-house on the 22d of October, and that the petitioner, agreeably to such notice, has taken sundry depositions which are now before the committee; but the sitting member did not attend such examination, for reasons stated by him in a protest which he caused to be delivered to the petitioner.

Elections.

evidence of the

The committee further state that they have made the The land lists comparison of the polls with the land lists, at the particular are prima facie request of the petitioner, and for the purpose of reducing the property qualicontroversy before them as much as possible; and that they fication of vowere induced to this course from adopting, as a principle, ters. that, according to the laws of Virginia, the land list of the year prior to the election is, in the first instance, to be received as evidence of all the freeholders in the county; but this evidence they conceive, and so it was admitted by the parties, is only conclusive in the absence of all other evidence; and they accordingly are of opinion that it is com

1811.

12thCONGRESS, 1st SESSION.

pétent for the parties to show, by other testimony, that persons appearing on the land lists are not freeholders, and thus not entitled to vote; and, on the other hand, that persons not Report of the appearing on the land lists are freeholders and voters. Committee of Elections.

The sitting member, before such examination was gone into, asked for time to take testimony, under the conviction that, in a reasonable period, to be fixed by the committee, he would be able, by evidence to be taken, to support his challenges and his poll, and he still requests such time to be allowed him the petitioner, on the other hand, has at all times opposed such request, on the ground that the sitting member has had sufficient time, since he was apprised that the election would be contested, to procure his testimony.

The committee are aware that some inconvenience must Quere, whether arise to the petitioner, if this contest is laid over for any further time time, but they think the right of suffrage ought not to be shall be allow- hazarded or destroyed on account of any individual inconed the sitting member to obvenience. If there has not been gross neglect in the sitting tain testimony. member, the committee conceive that it is due to the electors of the district who polled for him, and to himself, not to hurry his case to a decision, without giving them and him an opportunity to make good the election if they can do it.

It has been already stated that the petitioner gave notice of his intention to contest the election to the sitting member on the 7th of May, and this the former contends was sufficient to put the latter to the task of collecting and arranging his proofs; your committee see, however, that the proceeding was modelled on the laws and usages of Virginia, and, according to them, it is regarded as a mere incipient step, calling for no proceeding from the other party. Such a notice, on the heel of a contested election, is an index to the feelings of the person giving it, but not always the proof of a settled determination. As the period of the election recedes, and the difficulties attending a canvass become more apparent, the unsuccessful candidate sometimes abandons his notice and his scrutiny. It ought not, therefore, to be required of As to defensive the person returned, for such cause alone, to wade through testimony, see all the trouble, difficulty, and expense of a tedious examinaVarnum's case, tion, while it remains doubtful whether his opponent will ante, p. 112.

proceed. It is surely in season to begin to take defensive testimony when the opposing party has commenced the investigation.

The notice given by the petitioner on the 27th of SepOf the notice tember, for the examinations on the 10th, 13th, and 22d of given prior to October, the committee have accordingly regarded as the first the taking of the testimony efficient measure towards the scrutiny, and they are satisfied by petitioner. that, in a district composed of six counties, and in a case where the votes challenged exceed four hundred, it was not practicable for the sitting member to take his testimony in season for the commencement of this session. A notice given by him after the 29th of September, would not have been deemed reasonable for an earlier day than the 10th of

October, nor would it have been allowed in him to call the 1811. 12thCONGRESS, petitioner from his own examinations, which were to con- 1st SESSION. tinue until after the 22d of October: it is not possible to conceive that the sitting member would procure his evi- Report of the dence, allowing him time, before the first day of the session, Elections.

to travel to the seat of Government.

The committee, in addition to the facts already stated, report that it appears to them that, on the 29th day of April last, being the day of the canvass, the petitioner procured the certificates, under oath, of the sheriffs, and two of the deputy sheriffs, (who attended to compare the polls,) that if an equality of votes had appeared, they would have voted for the petitioner; which certificate was transmitted by the magistrate before whom it was attested, to the Clerk of this House, at the request of Mr. TALIAFERRO, to be retained until called for by him.

This the petitioner alleges ought to be regarded as the commencement of his testimony, and he contends that it not only advised the sitting member, that his seat would be contested, but made it necessary for him forthwith, and without further notice or act on the part of the petitioner, to proceed to his examinations. The committee, however, have nothing before them, which goes to show distinctly the object of the petitioner in procuring the certificate; nor can they, in any point of view, consider this as such a prelude to the scrutiny as to require from the sitting member that he should proceed to his canvass.

Committee of

that

The committee, therefore, upon a view of all the circum- The committee stances of the case, are of opinion that further time ought to propose further time be be granted to the sitting member to procure testimony, and allowed the sitthey accordingly submit the following resolution:

ting member to Resolved, That a reasonable time be allowed John P. procure eviHungerford, a member of this House, to procure testimony House refuse dence, but the relative to his election, and that the Committee of Elections time, and rehave power to examine witnesses, and to make order for solve that the such examinations in the case of the said election. petitioner is entitled to his This report was committed to the Committee of the Whole seat. House, and, after a consideration of two days, leave to sit again was refused.

On a motion in the House to concur with the Committee of Elections in their closing resolution, it was, by a vote of 46 to 65, determined in the negative, and a motion to recommit the subject to the same committee was also lost.

The two following resolutions being then proposed, to wit: 1. "Resolved, That John P. Hungerford is not entitled to a seat in this House.

2. "Resolved, That John Taliaferro is entitled to a seat in this House."

The first was carried by a vote of 67 to 29, and the second by a vote of 66 to 19.

And thereupon John Taliaferro took his seat, &c.

Report of committee.

Facts of the

CASE XXXII.

JOHN TALIAFERRO vs. JOHN P. HUNGERFORD, 2d contest.

[In the opinion of the committee, the law of Virginia directing that the names of the voters shall be entered by the poll-keepers duly in distinct columns, is not satisfied by the insertion of the surname only, or by the prefix of the initial letter of the Christian name with it, but the whole name should appear. This opinion was overruled by the House. The land lists are not conclusive tests of the qualifications of voters : parties may resort to evidence aliunde to sustain their challenges.]

At the first session of the thirteenth Congress, John Taliaferro, of Virginia, again contested the return of John P. Hungerford, as a member from that State, he having been a second time chosen; and, on the 10th of June, 1813, the Committee of Elections made the following report, to wit: That, at the last congressional election in that State for Representatives, the said John P. Hungerford was returned as elected from the district composed of the counties of Westmoreland, Richmond, Lancaster, Northumberland, King George, and Stafford. The petitioner was also a candidate. The laws of Virginia prescribing the manner of conducting such elections, direct that "the clerks of the polls shall enter in distinct columns, under the name of the person voted for, the name of each elector voting for such person. They further direct that "the clerks of the polls having first signed the same, and made oath to the truth thereof, a certificate of which oath, under the hand of the magistrate of the county, shall be subjoined to each poll, shall deliver the same to the sheriff," &c.

Upon inspecting the polls of the several counties, the following facts appear:

In Westmoreland the names of the voters are all entered case. Irregu- in one general column on the left hand margin of the book, larities attend- and figures in numerical order, instead of the names of the voters, are inserted in the columns under the names of the candidates, as evidence for whom each vote is given.

ing the election stated.

In Richmond the votes are registered in one column, and a straight mark, instead of the name of the voter, is in