1813.

To prove that all the electors who attended on the first 13th CONGRESS, day, might have been polled on said day, the petitioner has 1st SESSION. produced the accompanying depositions from No. 4 to No.

Evidence tend- 9, inclusive, which in substance state that the election coming to prove menced between 9 and 10 o'clock in the morning; in about that the poll might have one hour after, it was interrupted 15 or 20 minutes, with the been complet-consent of the candidates, by an address made by Levin E. ed the first day, Parker to the electors in favor of Mr. Bassett: that, except and without ad

journment. this, it proceeded with great order and rapidity from the

the sheriff,

poll or not.

commencement, save a few minutes' intermission several times during the day, while the qualification of an elector was inquired into, or when no voter offered, until about 5 o'clock in the afternoon, when voting became very slow : and but two or three votes were given in the course of half an hour, though proclamation was several times made, and the sheriff frequently requested persons to vote. That, at the setting of the sun, there were present the two under-sheriffs, and two other persons only qualified to vote, who had not voted; and it was represented to the sheriff that some of the voters had gone home under the expectation that the poll would be continued: a continuance took place-it was asked for by the friends of Mr. Bayley, and objected to by Mr. Bassett's, as also now by himself, on the ground that it was unnecessary and illegal.

Sitting member On the other hand, it is contended by the sitting member contends that it that the propriety or necessity of an adjournment, to fulfil is a matter of the spirit and intention of the law, is a matter left to the discretion in sound discretion of the sheriff, which, in the present case, whether he will had been properly exercised: that the presence of four, or adjourn the any number of legal voters, not having voted, and claiming He is to judge the right to vote, at the close of the poll on the first day, whether the furnished such reasons and grounds for the continuance, contingency as had been approved by universal practice through the has happened State, and sanctioned by the Legislature. In support of which, he produced a list of the election polls, taken in various counties, at different times, and on different occasions, in the State, accompanied by certificates from some of the clerks who kept the same also, the testimony of Messrs. Caperton and White, members of this House, and a certificate from the petitioner, acknowledging that the said election in Accomac was conducted with honesty and impartiality.

or not.

A

However desirous the committee may be to sanction the general usage of the State, and respect the construction given to its law by its Legislature, they look in vain for that usage or construction in the evidence exhibited by the sitting member. Among the cases he presents, no two agree, nor does any one of them compare with the one under consideration. This diversity denies us the aid of precedent, and leaves this case, as it probably will all others of a like nature, to be decided according to its own particular merits.

1st SESSION.

The law of Virginia forbids voting after sunset on the day 1813. of election, and requires the poll to be closed on the first 13th CONGRESS, day, unless the electors are prevented from attending, by the providential interposition of rain, or the rising of water- Report of the courses, or when more electors attend than can be polled in Committee of one day; in either of which cases, and then only, the sheriff is authorized to continue the poll.

It is presumed that those exceptions in the law were intended to favor those who, after due diligence, were unable to exercise their elective franchise, but was never designed to indulge the negligent, or protect the fraudulent. With this view of the law and the evidence before us, no difficulty is found in deciding the present case. The day was fine, the election progressed with order and great rapidity: by five o'clock in the afternoon nearly all had voted; although proclamation was several times made, and the sheriff frequently called for voters, yet but few voted, for the last hour or two, and, for the space of about half an hour, only two voted. At the close of the poll there were present but four persons who had not voted, two of them deputy sheriffs, who had been attending the whole day, and nothing appears but that the other two had or might have attended the same time. Why did not those four vote during the day, or the last hour of it, when few voted, and particularly during the half hour in which only two voted? It was surely the want of disposition, and not the want of time, which prevented them. With these facts before us, can it be said that more electors attended than could be polled in one day? Certainly not; and no other cause is pretended or attempted to be shown for the adjournment. Under these circumstances, the committee do not hesitate to say that the said continuance of the poll in the county of Accomac was improper, and not warranted by law, and that all the votes given subsequent to the said continuance are illegal. They therefore respectfully submit the following resolution:

Elections.

"Resolved, That the adjournment of the poll in Accomac The committee county, in the election between Burwell Bassett and Thomas declare the adjournment in M. Bayley, was illegal, and that the votes taken in that coun- Accomac to ty subsequent to the said adjournment ought to be set aside." have been illeThe foregoing report having been read in the House, it gal. was then ordered (but for what reason does not appear) to be recommitted to the same committee; which, having been done, the committee, on the 30th July, 1813, declared their inability to give the subject, at that period of the session, so full an investigation as the House seemed to require. The further consideration of it was, upon their suggestion, ordered to be postponed to the first Wednesday of the succeeding session.

On the 2d of February, 1814, the Committee of Elections made their third and last report, as follows:

That, at the last general election in the State of Virginia

1st SESSION.

1813. for Representatives to Congress, the said Burwell Bassett 13thCONGRESS, and Thomas M. Bayley were opposing candidates in the district composed of Accomac, Northampton, Middlesex, GlouCommittee's cester, Matthews, James City, Warwick, Elizabeth City, third report. and the city of Williamsburg. From the polls in the said election, 1,072 appear to have been given in the whole district in favor of the sitting member, and 1,015 for the petitioner, giving the former a majority of 57 votes, whereupon he was returned as elected.

In canvassing the votes objected to on both sides, which were numerous, and in many instances involving questions of considerable intricacy, your committee have carefully examined the evidence presented to them, consisting of the land roll of the several counties, transcripts of records, depositions taken on reasonable notice, or admitted by consent of parties, and some parol testimony, with cases agreed, stating the points of fact relative to certain votes. On comparing these with the laws of Virginia regulating elections, your committee find 64 votes given to the sitting member by persons not qualified, and 63 votes given to the petitioner by Votes which persons not legally qualified, and 2 votes given to the petihad been re- tioner which had been disputed, and therefore not counted jected at the by the officers conducting the election, were found to be election, allow. legal, and ought to be added to his poll. ed.

The petitioner objected to the legality of the votes given in the county of Accomac on the second and third days of the election. On examining that subject, it appears that one day only is allowed by the law of Virginia for holding the election, with an exception in the following words: "If the electors who appear be so numerous that they cannot all be polled in one day, before sunsetting, or if, by rain, or rise of watercourses, many of the electors have been hindered from attending, the sheriff or under-sheriff may, by request of any one or more of the candidates, adjourn the proceeding on the poll until the next day," &c.

A subsequent law requires the poll, if once continued over to a second day, agreeably to law, to be held open also for a third day. It did not appear, nor was it pretended, that any rain had fallen, or that any rise of waters had taken place. The only question was, whether the other condition had happened, on which the law authorized a continuance of the poll beyond the first day, with the effect Proceedings at of such continuance. It was proved that the election comthe election. menced early, and progressed very rapidly, and with no intermission, except such as appeared necessary in deter

* In the case of Trigg vs. Preston, (third Congress,) one exception taken was, that the poll in Lee county was closed by the sheriff at about three o'clock P. M., after three proclamations made, and that he refused to open it, though other voters afterwards appeared, and demanded the right of voting. The committee adjudged the election to have been legal, and say that the sheriff appears to be vested with discretionary power to close the poll at any time after three proclamations made, and no voters appearing."

mining the right of disputed votes, and a small space occupied by a friend of the petitioner in addressing the people; that, toward the close of the day, voters became more rare, and, for half an hour previous to sunsetting, very few, if any, votes were given, insomuch that the sheriff proclaimed several times at the door of the court-house, that, unless other voters would come forward, the election would be closed; that, about sunsetting, four persons appeared, and demanded the privilege to vote; two of these were deputies of the sheriff, who were present during the day, assisting in the election; it did not appear whether the remaining two had been present during the day, or had just appeared at that late moment. The sheriff continued the election over to the second day, at the request of the agent of the sitting member, though objected to at the time by the agent of the petitioner as unauthorized and illegal.

1813. 13thCONGRESS, 1st SESSION.

the sheriff ille

From this evidence, your committee were very clearly of Adjournment the opinion, that the event did not happen, on which rested of election by the authority of the sheriff to adjourn over the election; gal. that the question whether more persons had appeared than could be polled on the first day, was a mere question of fact, allowing no discretion whatever in the officer, and that the subsequent proceedings were illegal, and that the votes received on the second and third days ought to be rejected.

It appears that 53 votes were given on those days for the sitting member, and 4 votes for the petitioner. Deducting these from the respective polls, and adjusting the same, it will result that 955 legal votes were given for the sitting member, and 950 legal votes were given for the petitioner, giving to the sitting member a majority of 5 votes; therefore, that the sitting member is duly elected.

Your committee, therefore, respectfully submit the following resolution:

"Resolved, That the sitting member is entitled to his seat." Sitting member After debate, the report was laid on the table.

FEBRUARY 11.

The House resumed the consideration of the report. Several motions to lay it on the table, to postpone, to recommit, having been decided in the negative, the House concurred with the Committee of Elections in their resolution; and so the said Thomas M. Bayley was confirmed in his seat.

entitled to his seat.

1813. 13thCONGRESS, 1st SESSION.

Report of committee.

obtain testimo

CASE XXXIV.

WILLIAM KELLY US. THOMAS K. HARRIS, of Tennessee.

[The law of Tennessee, among other qualifications for voters, declares that every freeman, &c. " possessing a freehold in the county wherein he may vote, and being an inhabitant of this State, and every freeman being an inhabitant of any one county in the State six months immediately preceding the day of election," &c., may vote. Held to restrict the voter to vote in the county wherein he has been an inhabitant, &c. and nowhere else.]

MAY 31, 1813.

Mr. Kelly presented his petition, which was referred to the Committee of Elections; and on the 31st May, 1813, the committee reported,

That, at the last general election in Tennessee for Representatives to Congress, the said William Kelly and Thomas K. Harris were candidates in the third congressional district. From a return of the polls in the district, as made to the Governor of the State, it appears that the sitting member obtained one vote more than the petitioner, and, therefore, was returned as elected.

By the laws of the State, it is made the duty of the inspectors of the election for Representatives to Congress, to cause two fair statements to be made of the number of votes given at said election for each candidate, and certify the same; and it is also made the duty of the sheriff, or returning officer, to transmit one of the said returns, or certificates, to the Governor, and to file the other with the clerk of the county court of his county. That, on comparing the certificate with the polls taken in the county of Warren, in said district, and transmitted to the Governor, with the one filed with the clerk of the said county, there appears to be two more votes for the sitting member, on the former, than there is on the latter certificate. And it further appears, by the first certificate, that the number of votes given to each candidate, being added together, will exceed by two the whole number of votes certified to have been given. The petitioner contends that these facts prove the certificate filed with the clerk correct, and the petitioner entitled to his seat.

The sitting The sitting member was not notified that his election member prays would be contested until after his arrival in this city, and he further time to now states that he believes that if time was allowed him, he could procure testimony to support his election, and to show that the petitioner received many illegal votes, and that there were several erroneous returns made in favor of the peti

ny.