STATE OF VIRGINIA, Westmoreland county, sct : In testimony whereof, I have hereunto set my hand, and affixed the public seal of my office, this thirteenth day of April, in the year of our Lord one thousand eight hundred and eleven, and of the Commonwealth of Virginia the thirty-fifth. H. OF R. for a seat in the next Congress of the United States, JOHN TALIAFERRO. Meriwether Taliaferro made oath before me, an acting justice of the peace for the aforesaid county, that he did, on the 27th of last month, (September,) deliver to General John P. Hungerford a notice, in wri-" ting, of which the within is a true copy. Given under my hand this 8th day of October, 1811. ALEX. S. HOOE. LEEDSTOWN, October 9, 1811. Sin: I protest against the notices you have recently given me, to take depositions in three of the counties of the district, for the following reasons: JOSEPH FOX, C. W. C. KING GEORGE, May 4, 1811. SIR: Be pleased to take notice, that I shall, on the meeting of the next Congress of the United States, contest your election to represent the counties of Westmoreland, Richmond, Lancaster, Northumberland, King George, and Stafford, in that body, on the ground that you did not, at the last election, obtain a majority of the electors of the said district who were legally qualified to vote for a Representative to Con1st. There exists no law entitling you to give them, gress. And I shall further make it appear, if neces- empowering a magistrate to administer the oaths, or sary, that your election has been contrary to law, and, to take the depositions providing an authority to definally, that I shall claim the right to represent the cide incidental questions during an investigation, or said district, in virtue of my having obtained over you enabling me to obtain the attendance of witnesses. a majority of the votes of the electors thereof who 2dly. There does exist a law requiring my attendwere duly and legally authorized to vote in the elec-ance in Congress on the 4th of November next, as the tion. Below you will find a list of the names of the member returned for the district. persons from the several counties in the said district, whe voted for you, to whose votes I object as not being legal, and my particular objections to the legality of each person's vote are placed opposite to each of their names. I am, respectfully, your obedient servant, &c. [Here follows the list of 304 names.] JOHN P. HUNGERFORD. 3dly. It is impossible for me to obey the existing law, and conform also to the mode you have adopted, without law, for scrutinizing the election. It terminated on the 22d of April. On the 4th of May you notified me, according to the law of Virginia in relation to State elections, of your intention to dispute my election, and furnished me with lists of votes you objected to, in each of the six counties composing the district; and I furnished you with similar counter-lists, according to the same law. Recently you have given me notice of an intention to take depositions in three of those counties, on the 10th, 17th, and 22d of this month; reserving an equal power to exhaust the month of November in the other three, in the same way, before I can be apprized of the nature of your exceptions, or the evidence necessary to meet them. This ingenious management for pushing the scrutiny beyond, or far into, the session of Congress, makes it impossible for me both to obey the law requiring my attendance during this period, and to obey your future notices; or to avail myself of a right of a personal attendance, without violating the right of my constitpreference between these evils may be, in a case of uents to representation; and, however imperative the necessity, I know not by what authority you can impose it. 4thly. Nor do the principles of reason and equity, in my view, militate less forcibly than those of law, against the mode of scrutiny you have attempted to prescribe. The notification, according to the State law, was also a notification of your intention to adopt its rules throughout. It enacts that scrutinies shall commence within two months of the election, and terminate thirty days before the ensuing session of Assembly. Your proposed commencement is near six months from the election, and the termination of the scrutiny, if I ought to be allowed as much time as you have exhausted and will exhaust, would probably go beyond, or deep into, the session of Congress. If, by your first notice, you can avail yourself of the letter or equity of the State law, your subsequent nonconformity to either was a notification to me of an abandonment of the scrutiny. If not, even your first notice was irrelative and void. But if its equity and justice is sustainable upon the moral authority of the law, the same authority is equally conclusive against the equity and justice of your lying by for near six months, and then attempting to compel the returned member to desert his constituents, or his defence. The object of the law you have adopted, and violated, was to prevent a mode of proceeding injurious to an individual or to the people; to the individual, from the decisive advantage his absence would give to an antagonist in the investigation of a multitude of distinct cases, as to which no agent could or would be sufficiently informed to do him justice; or to the people, from the loss of representation, or from receiving it rather from a scrutiny unequally conducted, than from their own suffrages. Whatever might have been a proper line of conduct for me, had you continued to conform to the principles of our State law, I discover no obligation for conform ing to a mode of scrutiny, prescribed only by yourself, contrary to those principles; because it appears to me to be warranted as little by justice as by law, to correspond with no principle countenanced, or likely to be countenanced, by either, and to be at least as liable to be rejected on my part before I had adopted it, as the State mode can be on yours after you had done so. cannot, therefore, in justice to the district, or to myself, perform any act from which could be inferred a submission to the unauthorized system you have adopted, nor allow any validity to the affidavits you may take in pursuance thereof. I am, sir, respectfully, yours, &c. JOHN P. HUNGERFORD, OCTOBER 12, 1811. I This extraordinary paper, so full of truism and sophism, whether it be considered as a serious protest, or as an indirect mode of popular wheedling, was received by me on or about the 11th instant, (October.) I certainly never meant to act under either of the laws referred to in the paper; the State law, regulating its own proceedings on contested elections, had no application; and the law of Congress, on a like subject, had, long ago, expired. What might possibly be the "moral authority," mentioned in the paper, of a foreign, a repealed, or of an expired law, in the case, I cannot undertake to say. I considered that the House of Representatives, both from the nature of the case, and from the positive words of the Constitution, had full power to judge of the elections, qualifications, and returns of their own members; that so general a grant of power necessarily implied a great range of discretion in respect to evidence; that, from the commencement of the Government to January, 1798, and from April, 1804, to the present day, no act of Congress had existed regulating contested elections; that, in those periods of time, elections had been contested and decided on almost every point that admits of contest. I therefore, without reference to any past law, endeavored to procure sufficient testimony on the general principles which are adopted in courts of law where affidavits are received in place of the oral testimony of witnesses present. I meant, at the earliest day, to submit the testimony I had, with deference, to the Committee of Elections, to solicit their earliest attention to its suffi NOVEMBER, 1811. ciency in point of form, and their instructions as to what other sort of testimony they might require, that I might, in the speediest way, perfect the one and procure the other. JOHN TALIAFERRO. WASHINGTON, November 19, 1811. The petitioner, in answer to the objections of Mr. Hungerford, the sitting member, to the admission in evidence of the notice and affidavits produced by the petitioner in support of the allegations in his petition, respectfully represents to the Committee of Elections, that, though no law of the United States, or of the State of Virginia, exists, prescribing the mode of taking evidence in contested elections like the present, yet it has been the settled practice of Congress, since the law of the United States on that subject expired, to receive the evidence of either party, taken conformably to the laws and general usage of the State to which they belong, requiring always that reasonable notice be given to the adverse party of time and place, that he may attend and cross-examine the witnesses, if he thinks proper. The petitioner, therefore, submits to the committee, whether the notices given by him, and the evidence taken, do not come within the established practice of Congress, so as to render them admissible on the present occasion. With regard to the suggestion of the sitting member, that he has not had time to collect and prepare the evidence in support of his return, the petitioner begs leave to state the following facts: 1st. That the election closed on the 29th day the sitting member his intention to contest the elecof April last, at which time the petitioner declared to tion; and did, in the presence of the sitting member, transmitted to the Clerk of the House of Representacause the affidavits of four persons to be taken and tives. to be used as evidence in the controversy. 2d. That, on the 7th day of May, he caused to be delivered to the sitting member a notice in writing, stating more fully the intention of the petitioner to contest the election; annexed to which notice was a list of the names of all the voters on the polls of the sitting member objected to by the petitioner, and a specification of the particular ground of objection to each voter. And, 3dly. That the petitioner did, on the 27th of September, give the sitting member notice of the times and places when and where the testimony of the witnesses proposed to be examined by the petitioner would be taken; during the whole of which time the sitting member made no effort either to controvert the evidence adduced by the petitioner, or to show that, according to the constitution or laws of Virginia, those voters to whom the petitioner had objected were entitled to the right of suffrage; nor has he alleged a single reason why he could not have availed himself of such testimony, if it existed, at the opening of the present session of Congress. If there is a point which the sitting member can establish to change the aspect of the case, or if it be in his power to countervail the evidence before the committee so as to produce a result in his favor, the petitioner demands an exposition of that point, and a disclosure of the evidence upon which the sitting member will rely to effect that object. The question will then be fairly presented to the view of the committee, and they can determine whether the evidence, which the sitting member supposes to be material, might not have been obtained, with proper exertion, anterior to the meeting of Congress; whether due diligence has been used by him for that purpose, and, if not, from what NOVEMBER, 1811. Virginia Contested Election. H. OF R. cause the neglect has arisen; and finally, whether the that it is material to the support of his claim to a seat proof which the sitting member imagines to exist in the House of Representatives of the United States, would, if it were before the committee, be sufficient to and that he has made use of every reasonable diligence sustain the validity of his election. The petitioner to obtain the same in due time without effect, the pebegs leave to refer the committee to an attentive exam- titioner would not contest the propriety and fairness of ination of the Constitution and laws of Virginia estab- suspending, for a limited time, a final determination of lishing the right of suffrage. From these it will appear the present controversy. But, on the contrary, it is that every male citizen of the State, (other than free manifest to the committee, that all the means in the negroes and mulattoes,) aged twenty-one years, who is power of the petitioner to prosecute the inquiry, on his possessed of a freehold estate at the least, or who is part, were equally open to the sitting member to pretenant for life, in a quantity of land, if improved, equal pare for his defence; that, immediately after receiving to twenty-five acres, or fifty acres of unimproved land, the notification, as early as the 7th of May last, that or of a lot or part of a lot in any town established by his election would be contested, it was the incumbent law, and who shall have been so possessed six months, duty of the sitting member, without waiting for furunless the same shall be derived by marriage or by de- ther steps to he taken by the petitioner, to have met scent, and none others, shall be entitled to vote for Rep- the objections made by the petitioner to the voters speresentatives to the General Assembly. It is also pro- cifically named, and to show the basis on which their vided by a law of the State that one or more commis- right to vote rested. Such a course was due to himsioners of the revenue shall be annually appointed by self, if he believed the evidence for that purpose was the court of each county, whose especial duty it shall in existence; it was due also to the respect which be to register, in alphabetical order, in a book called the ought, on all occasions, to be evinced for the honorable land-book or list, the name of each and every land-body of which he was returned a member, and before holder in his county; and for the better execution of whom his case was to be heard. Regardless of these which, it is provided, by law, that each person shall an- considerations, and of the right of the petitioner to denually, on oath, give a true and exact account of all mand, in behalf of the electors of his district, a speedy lands and other property of which he is possessed, to be decision of a case involving their dearest interests, the entered on the book or the list of the said commissioner. sitting member has suffered six months to elapse withThis land list is, by express statute, made conclusive out even an attempt to obtain that evidence which he evidence for and against sheriffs in the collection of the now pretends to be so essential in his defence. He land tax. It is, by law, evidence for or against persons has appeared before the committee, not for the purpose who omit or refuse to vote at elections for Representa- of making his defence, but to be relieved from that tives to the State Legislature or to Congress. By law, unpleasant task; the committee are gravely asked to it is the test by which to try the competency of grand reward his negligence by granting a delay, which, in jurors, as none but freeholders are allowed to be grand all human probability, will amount to a virtual confirjurors. It has been the immemorial usage of the Leg- mation of his seat. The sacred right of representation islature of Virginia to resort to the land list as the most in the Legislature, at this critical and important consatisfactory proof in contested elections, and their de- juncture of our national concerns, ought not to be arcisions, in cases similar to the one before the committee, rested from a portion of the American people, upon have uniformly been in favor of the candidate having pretexts which are not supported by facts or circumon his poll a majority of votes supported by such list. stances, and which, if true in their fullest extent, would From this view of the laws and usages of Virginia, the fail of producing any material change in the result of committee will readily perceive that great credit is due the present investigation. To demonstrate the accurato the land list, as a list of the qualification of voters; cy of this proposition, the petitioner begs leave to refer and the petitioner feels confident that it will be re- the committee to the extraordinary augmentation of ceived by the committee as conclusive evidence in votes in the county of Westmoreland, by which it will the case under consideration, unless other testimony, appear that one hundred and sixty-two votes, not enequally respectable, should be adduced to support the rolled on the land list, were given to the sitting mempretensions of the sitting member. Apply this list to the ber in that county, being more by twenty-eight than poll of each party, and it is a fair inference, that, out are excluded from the entire poll of the petitioner, by of any given number of votes divided between them, the application of the land list as a test to his poll taken its operation would diminish the votes of each in equal for the six counties composing the district; in addition proportions. to which, the sitting member received a very large proportion of bad votes in the other counties. The petitioner humbly conceives that the proposition of the sitting member for further time to collect his evidence, is supported neither by reason nor precedent. It would seem to be unnecessary, after the solemn decision of the House of Representatives in the case of Baylies and Turner, to enter into any general reasoning upon this subject. In the case referred to, an application for further time was refused, notwithstanding the sitting member declared it would be in his power to produce, on a subsequent day, material evidence, of which he had not previously known. But, without the aid of this adjudication, such an indulgence is manifestly inconsistent with the plainest dictates of justice, and the most familiar maxims in every judicial | tribunal. If, indeed, the sitting member can show to the committee that the evidence he is in search of was not in his possession or power at any former period, 12th CoN. 1st SESS.-13 From these premises, which are supported by the strongest proofs in the possession of the committee, the conclusion is irresistible, that, admitting the sitting member to sustain every objection which he has made to the poll of the petitioner, he would fall very far short of raising his number to a legitimate majority of the district. The petitioner, therefore, with due deference to the opinion of the committee, can perceive no possible benefit to be derived from an enlargement of the time for taking testimony. Such a course might, and most probably would, enable the petitioner to increase the majority of constitutional suffrages to which he is entitled, but it could not most assuredly lessen them into a minority. Deeply impressed by the foregoing considerations, and with the important rights of his fellow-citizens involved in the issue of the question before the committee, the petitioner prays that his case may be considered and determined without further delay. JOHN TALIAFERRO. Mr. EмOTT addressed the Chair as follows: Mr. Speaker: Before the question is taken on the resolution now before the House, I shall take the liberty of submitting a few remarks in explanation of the vote which I am about to give. I am aware that, from the time which has already been consumed in this discussion, the patience of the House is nearly exhausted, and it is therefore with great and unfeigned reluctance, that I rise to take part in the debate. The only considerations indeed which induce me to trouble you at this time, are, that I am a member of the Committee of Elections which reported the resolution, and that the grounds on which I agreed to the resolution in the committee, and which still retain their influence on my mind, have not been distinctly stated, and I fear are not perfectly un derstood. It is not my intention to enter into the merits of the election, or to exhibit a scale of probabilities by which the House shall be enabled or called upon to judge of the possible result of this controversy. These topics appear to me to have nothing to do with the question of postponement; and if we allow a hasty and half digested opinion with respect to the possible or the probable end of the dispute formed from documents not perfectly understood, or bottomed on the opinions of persons in whom we confide, to guide us, it is very much to be feared that we shall be misled. What, sir! shall we, when a party requests time in a case like that now before us, in order to procure testimony when he tells us that by such testimony he not only intends but expects to support his return and his right to a seat in this House shall we turn round and tell him that we under stand his case better than he does himself, and that as we are satisfied, he cannot make out his right; that we will not therefore give him time? Is it true that we, who now for the first time have a view of the controversy, can be as competent to judge of it as one who was an actor in the scenes which led to it, and who has a precise and distinct recollection of everything that passed? Or, will we suffer ourselves to believe that the request is made by the party, notwithstanding a conviction on his part that he must eventually and certainly be defeated? Why, sir, it should be recollected that the taking of testimony must be attended with much trouble and expense, and it is idle to believe that a man will incur either without an object, and that this object is never defeat and disgrace. The questions, Mr. Speaker, which on this application present themselves to my mind, are, whether there are any grounds to believe that if time is granted to the sitting member, he will be able to support his election, and whether he has been guilty of such neglect as justly to deprive him of the right to be farther heard. On these questions I shall proceed to offer a few desultory remarks, NOVEMBER, 1811. pledging myself at the same time to be as brief as possible. As to the first, it appears to me that the poll itself furnishes a strong ground to presume that the return may be supported. When an election is contested here, the controversy partakes of the nature, if it does not absolutely assume the form, of an appeal against the return; and as we may go behind the return, it is quite obvious that in deciding on the main question whether we shall reverse or affirm the judgment of the returning officers, the return ought not to be received as evidence. But this does not hold with respect to collateral questions. And on this occasion, 1 think it is fairly to be presumed, that the person whose vote was taken, had a right to vote, so far forth as to entitle the party who claims the benefit of it to time, to make out the fact. Let me remark, sir, that the election is not only public, but held in the place where the elector is is certainly sometimes the case, that a person who known. It is not extremely probable, though it himself at the hustings. Surrounded, as he must knows himself not to be qualified will present be, and as he knows himself to be, by his neighbors and acquaintances, who have a knowledge of his state and condition in life-liable as he is to be challenged and abused for attempting to exercise a right which does not belong to him, and which in the exercise gives to him no personal benefit or advantage, and in most cases subjects him to considerable inconvenience, it is not to be presumed, when he has voted, that he was not lehe had the right, is fortified by the consideration gally qualified to vote. The presumption that that the presiding officer, the sheriff, (I speak in relation to this case, and of the elections of Virand by oath, is bound to judge of the qualifications ginia,) not only has a right to judge, but, by law of the electors, and not to admit illegal votes. In doing this, he is not only guided by what has edge of the country, which is necessarily extentaken place at former elections, and his knowlis bound to have before him. Is not then the consive, but by the land-list of the county, which hẻ clusion strong, that the person who offers himself to vote, and whose vote is accepted by the sheriff, has the right to vote? Again, sir-and let it still be recollected that I am speaking of Virginia elections-the votes are given in the presence of the candidates, their friends and partisans. There is no want of knowledge or information then as to the persons who offer to vote; and if there exists any doubt as to the right, the candidate or his agent has by law the privilege of challenging, and the elector has then to swear to his qualification. Now, in an election so warmly contested as was this-in which the feelings of the electors and candidates appear to have been so much engaged, when it was known, too, that the majority on either side could not be large-is it to be presumed that many bad votes were taken ? or, is not the presumption a fair and natural one, that the persons recognised by the sheriff as qualified voters, and not objected to by the parties or the county, were legally entitled to vote? But, Mr. Speaker, there is another ground for believing that the election may be supported, which, as to this application, appears to me absolutely conclusive. An honorable gentleman from Virginia, (Mr. GHOLSON,) who is not only against giving time, but has offered a resolution for vacating the seat of the sitting member without further information or inquiry, has mentioned the case of a contested election from Massachusetts, between Baylies and Turner, in which the sitting member also asked time; and has remarked, that he put the question distinctly, whether the member believed in case time was given him, he would be able to support the return, meaning to be governed by the answer he should receive; and that, as the sitting member would not say that such was his belief, he voted against a postponement. It is not my wish to remark at this time on that case, as my opinion respecting it is sufficiently known by the part I took in the debate; but I will ask if the gentleman would thus have been satisfied in that case, what ought to be the course adopted now? H. OF R. the lands in their respective districts, liable to be rated with an account of the owners of the freehold as far forth as the Commissioners can ascertain them, and are corrected annually from an examination by the Commissioners of the tranfers recorded in the office of the county clerk; the corrections take place in the Spring, and the list with its corrections is called the list of the year wherein the corrections were completed. These lists are made up for the purposes of taxation, and indeed are nothing more than assessment rolls; they ascertain the land rated and the tax to be paid, but to the proprietor, they give only the conjecture or opinion of the officer. A land list is not a record of the title, and it is accordingly understood, and so is the admission of the parties here, that it may be contradicted. Let me now remind gentlemen that the land lists by which the comparison in this case was made were those of 1810, and which, therefore, in point of time, precedes the election by about a year; and they will permit me to ask whether it is possible that any evidence arising from such lists can destroy the presumption that the return may be supported if time is given. All the arThe sitting member, when before the Commit- rangements and dispositions within the year are tee of Elections, declared, and the members of the necessarily excluded, and the persons who in such committee certainly gave credit to the declara- year by purchase, by marriage, by devise, and by tion as far as respects the belief of the member, descent, became freeholders and electors, are not that he did not doubt but that he would be able, to be found on the land lists. In a country like if time was granted him, to support his election; ours, where property finds new owners so freand the committee have accordingly, in their re- quently, it is easy to conceive that many persons port, stated that the sitting member requested not entitled to vote in 1811, may be found on the time, under the conviction that he would be able land list of 1810, and on the contrary, that many, to substantiate his poll and his challenges. Nor very many persons not on such lists were entitled did I understand the petitioner, in opposing to vote. Nor is it true, that the Commissioners the application for time, as at all disputing the by searching the offices can with any great degree belief of the sitting member or requiring farther of certainty ascertain the freehold owners. I evidence of it. In addition to this, you have this understood it not to be the practice to record day heard the sitting member in his place declare, leases for lives, which yet give the freehold qualin answer to a question put by an honorable gen-ification and are numerous in this very district. tleman from Kentucky, (Mr. McKEE,) that he is convinced he can support his return if you allow him time for such purpose. Now, sir, 1 will ask you if the simple declaration of a belief would have been satisfactory, how much more is the declaration of a settled conviction arising from a full and intimate knowledge of the whole controversy. And the House will permit me to ask what other evidence is wanted or ought to be required, on a question of postponement, that there are grounds to believe the election may be supported. In purchases of the whole interest the only thing which creates a necessity of recording a conveyance, is to guard against future sales; as between the parties the deed is and always remains valid without being recorded, and in cases where the grantee has confidence in the grantor it frequently happens that the conveyance is never put on record. Whatever effect therefore the land lists may have on the final decision of this controversy, they ought not to be regarded in the determination of this collateral question. But, sir, there is an additional consideration I am sensible, sir, it is cóntended that the com- why the comparison should not in this case be parison which has been made of the polls with allowed to have the decisive influence which the land lists, destroys this presumption. It is some gentlemen are desirous to give it. It apcertainly advisable for a stranger to the State and pears that the petitioner in making his challenges laws of Virginia to approach these land lists in the counties which gave a considerable vote cautiously, when he finds such a diversity of sen- for the sitting member, objected to every person timent as to their influence and operation on elec-who did not appear on the land list, and that the tions, as in this debate we have witnessed in gentlemen of high standing from that State. A few remarks respecting them becomes however necessary. The land lists, as I understand them, are statements made by Commissioners in each county of sitting member did not pursue this course; had the latter challenged at large and according to the land list, it is certain that difference could not have been by any means as great as it now appears. When gentlemen kaow this, and when they are informed that the committee in their |