serted under the name of the candidate. In Stafford the 1813. Christian name of the candidate is not written on the poll; 1st SESSION. 13thCONGRESS, the initial letter only is given. The same occurs partially in Lancaster. Report of the On the polls of Westmoreland, Richmond, Lancaster, and committee. Stafford, no certificate is found of any oath having been administered to the clerks keeping the same. The petitioner contends that the irregularities and devia- Irregularities in tions from the express provisions of the law, are of such a the election nature as to render void the election, and require a new one complained of. to be held. On the other hand, it is argued by the sitting member that most of the proceedings objected to are justified by general practice; and that the manner of keeping the poll, by entering the names of all the voters in one general column, is sanctioned by long usage; and that in Stafford the initial only of the Christian name of the electors had been entered on the polls for several past elections. The committee are sensible that trivial errors, committed by the officers conducting elections, resulting, perhaps, from a misconstruction of a doubtful passage of a law, ought not to deprive any class of citizens of representation. Still it must be manifest that, to preserve the elective franchise pure and unimpaired, the positive commands and requirements of the law, in respect to the time, place, and manner of holding elections, ought to be observed. com To enter the names of the voters promiscuously in one Opinion of the margin of the poll book, when the law positively directs committee upon the irreguthem to be "entered in distinct columns," and "under the larities name of the candidate voted for," is as manifest a departure plained of. from the law as the selection of another time, or another place, than that mentioned in the law. Nor can the committee conceive that the prefixing the initial only of the Christian name to that of the family or surname of the voter, is a fair compliance with the spirit and intent of the law, which declares "that the names of the voters shall be duly entered in distinct columns," &c. It is presumed that the object of the law, in having the name duly entered, is to exhibit to the country, on a scrutiny, who are the persons voting, and to test their title to a vote, by comparing the poll with the land roll. And, when, for example, the initial letter is "J," it must be obvious that it may be taken to stand for John, or Joseph, or Jonathan, or Isaac, or Joshua, and it would require no small share of perseverance and industry to contest an election where such endless uncertainty stands in the way of examination. In the view of The committee have not been satisfied that such irregu- the committee larities have ever been sanctioned, on a scrutiny, either by the irregularithe Legislature of Virginia, or of the United States. When ties were such opposing candidates have not objected to them, they may election. as to vitiate the 1813. have passed sub silentio. We feel no hesitation in saying 13th CONGRESS, that custom ought not to justify a departure from the letter and spirit of positive law. 1st SESSION. The House do Upon a view of the whole ground, the committee, convinced of the importance of adhering strictly to the provisions of positive law, as well as of the irregularities in conducting this election, respectfully submit the following resolutions: "Resolved, That the said election held in the aforesaid district in April last was illegal, and ought to be set aside. "Resolved, That John P. Hungerford is not entitled to a scat in this House." In these resolutions the House, by a vote of 78 to 82, renot concur in fused to concur; and, on the 16th June, 1813, the report opinion with the committee, was, on motion, recommitted to the same committee, who, but order the on the 28th, submitted their second report as follows, to wit: report to be That, from the polls of the several counties, the sitting member appears to have obtained a majority of twenty-four second report, votes in the district. recommitted. Committee's with a state evidence. The petitioner claims the seat on the ground that a majoment of the rity of the legal votes at said election were given for him; and, as evidence to support his claim, produced the land list of 1812, with a copy of the poll taken in each county in the district at said election. That, on comparing the polls of each county with the aforesaid land list, and taking that as the test, it appears that 193 persons who voted for the petitioner, and 234 persons who voted for the sitting member, were not qualified to vote: that, deducting from both polls the persons challenged, who do not appear to have been qualified to vote according to the land list aforesaid, there is left for Mr. Taliaferro a majority of 17 votes over Mr. Hungerford. The petitioner contends that the difficulties of ascertaining the names, places of abode, and property of the voters, presented by the omission of duly entering their names on the poll book, forbid the hope of a fair and successful scrutiny of the poll by means of any other evidence than that of comparing it with the land list, on which alone ought the merits of his claim, and the right of the sitting member The property to his seat, to rest. But the committee were of opinion that qualification of it was competent for the parties to support their challenges voters may be and polls by other evidence, and therefore admitted the acproved by affidavit, as well as companying affidavits, with the testimony of Henry Lee, by the test of junior, Daniel C. Brent, and John Cook, (the two latter genthe land list. tlemen produced by the petitioner,) as sufficient to support 43 of the votes on his poll, that were challenged by the petitioner, and not found on the land list aforesaid. And the petitioner, by the testimony of the said Lee, Brent, and Cook, proved the legality of 15 votes found on his poll, challenged by the sitting member, and not found on the land list. That, by adding the aforesaid 43 votes to the poll of Mr. Hungerford, and the said 15 votes to the poll of Mr. See Porterfield vs. McCoy. Taliaferro, there is left for the former gentleman a majority of 11 votes over the latter. 1813. 13thCONGRESS, 1st SESSION. The petitioner contends that the evidence exhibited by the affidavits fell far short of supporting the votes it was in- Second report tended for, because it did not show that the voters had the of committee. possession of the freehold title to their lands, as well as of the land itself in right of which they voted, six months prior to six months'pos the day of said election, and which, as he alleged, the laws session of land of Virginia required to entitle them to vote, except in cases prior to, elec tion, if he obwhere they came into possession of the land by marriage, tain the freedescent, or devise. If this construction of the law, which hold at anytime the strict letter of it seems to warrant, had been adopted by before the election, qualifies the committee, it would have left fourteen of the aforesaid forty-three votes, given for Mr. Hungerford, unsupported, and to the petitioner a majority of four votes; but, from the best information the committee could obtain of the construction given this law, by the usage of the Virginia Legislature, a majority were inclined to the opinion that the spirit and intention of the law were satisfied when the voter had been six months in the actual possession of the land, and obtained his freehold title to the same any time previous to his voting. a voter. petition. Consideration From the above statement of facts, the committee are of That the petiopinion that the petitioner has not supported his petition. tioner has not This report was debated in the House on the 2d and 31st supported his days of July, 1813; and on the latter day, it was, on motion, ordered, that the further consideration thereof be postponed of report postuntil the 1st day of the succeeding session of Congress. poned to 2d At the second session of the thirteenth Congress, the case session of 13th having been referred to the Committee of Elections, their Congress. supplementary report was, on the 10th of January, 1814, submitted to the House, as follows: mittee of Elec That, at the last session of Congress, a final report was Supplementary made on the case, and it does not appear that the petitioner and third rewas apprised of, or expected, that the parties would have port oftheCombeen indulged with the admission of new evidence, and a tions. further hearing at this session. Yet as the House have seen proper to refer the subject again to the committee, they felt bound to receive all proper testimony which should be presented to them, and accordingly received from the sitting member a number of depositions, taken in July last, in pursuance of previous notice given by him to the petitioner, which support eleven of the votes on the poll of the sitting member, not found on the land list, nor supported by former testimony. Adding these to the forty-three votes, supported by him at the last session, gives him a majority of twentytwo votes over the petitioner. For a more particular statement of the poll in this case, the committee beg leave to refer the House to the second report made thereon at the last session. But after the most mature consideration the committee have been able to give this case, a majority are of opinion 1813. that this election is void, and ought to be set aside, because 13th CONGRESS, it was conducted in an irregular manner, contrary to the law 1st SESSION. of Virginia, prescribing the manner of conducting such elecCommittee ad- tions, as is more particularly set forth in the first report made here to their in this case by the Committee of Elections at the last session, opinion that the election is void to which your committee beg leave to refer the House, and for irregularity, respectfully submit the following resolutions : but this opinion "Resolved, That the said election was illegal, and ought does not re- to be set aside. ceive the sanction of the House. Sitting member his eat "Resolved, That John P. Hungerford is not entitled to a seat in this House." On the 1st of February, 1814, the Committee of the Whole confirmed in House reported their disagreement to the resolutions of the Committee of Elections; and on the 17th of February, the House, concurring with the Committee of the Whole, affirmed the right of John P. Hungerford to his seat. Report of the Elections. CASE XXXIII. BURWELL BASSETT US. THOMAS M. BAYLEY, of Virginia. [The official return of votes is to be taken as prima facie evidence of their legality. The sheriff has no discretion to continue the polls open, but upon the contingencies mentioned in the law: whether more voters appear than can be polled in one day, is a mere question of fact, allowing no discretion whatever in the officer.] JUNE 3, 1813. The petition of Burwell Bassett was presented, and referred to the Committee of Elections. The report of the committee, made in this case on the 3d of June, 1813, was as follows, to wit: That at the last general election in Virginia for RepresenCommittee of tatives to Congress, the said Burwell Bassett and the said Thomas M. Bayley were opposing candidates, in the district composed of the counties of Middlesex, Matthews, Gloucester, Warwick, Accomac, Northampton, James City, Elizabeth City, and the city of Williamsburg. From the poll of the several counties, the sitting member appears to have had a majority of fifty-seven votes in the said district, and he was accordingly returned as elected. The laws of Virginia prescribing the mode of conducting such elections, direct that the sheriff, or other officer conducting the poll, shall close it the same day, unless the electors be prevented from attending by rain, or the rise of watercourses, or unless there be more electors attending than can be polled in one day. It appears that neither rain, nor the rise of the watercourses, prevented the electors 1st SESSION. from attending on the first day of the election, in the county 1813. of Accomac. Yet the poll in this county was continued three 13th CONGRESS, days; for what cause, does not appear. It is contended by the petitioner that there is no evidence that this continuance Report of comwas for a cause warranted by law, and, therefore, that it mittee. ought to be presumed illegal, the election void, and a new one ordered. It is urged on the other hand, by the sitting member, that, The official reuntil disproved, the officer's return, who conducted the elec- turn is prima tion, ought to be respected as prima facie evidence of the of the legality legality of the proceedings, and the committee are unani- of an election. mously of this opinion. That, of the polls taken for the county of Accomac, Bur- Poll of Accowell Bassett had 61 votes, and Thomas M. Bayley 735 mac county. votes; 109 of the latter are challenged as illegal by the petitioner, who presented a list of their names, the greater number of which, on examination, are not found on the land list. The fact of these being polled for the sitting member, rests entirely on the declaration of the petitioner, who alleges that their names are on the list of the polls taken for the sitting member, a certified copy of which he was unable to procure from the proper office, but which list the sitting member declares to be incorrect. It is alleged by both the sitting member and the petitioner, that at, and subsequent to the time of the election, the usual intercourse between the different parts of the district was so interrupted by the enemies' cruisers, as to put it out of their power to procure the necessary papers and evidence to support their respective allegations, and the sitting member asks for reasonable time to be allowed him by the committee to take testimony, under the conviction that he would be able, by the evidence to be taken, to support his poll. And upon a view of all the circumstances of the case, the committee are unanimously of opinion that further time ought to be granted the parties to procure testimony, and they accordingly submit the following resolution: Resolved, That (five) weeks be allowed to the parties to Parties allowed procure testimony relative to the said election, and that the time to procure Committee of Elections have power to examine witnesses, testimony, and and make order for such examination in this case. the Committee of Elections to - The preceding resolution being agreed to by the House, examine wit. That no evidence has been exhibited to the committee to Committee's disprove the statement of facts made in the former report, second report. viz. "that there was neither rain, nor the rising of the watercourses, to prevent the electors from attending on the first day of the election in the said county (of Accomac.) The legality of the election in that county must, therefore, rest on the ground that a greater number of electors attended than could be polled on said day. |