kept open for three days. The laws of the States of Arkansas, Illinois, Iowa and Pennsylvania have similar provisions. In the latter State the polls are habitually kept open after sunset in large cities, and in the State of Illinois it is provided "that the judges of the election may, if they shall deem it necessary for the purpose of receiving the votes of all the electors wishing to vote, postpone the closing of the polls until 12 o'clock at night." No doubt the laws of other States are similar, but I have not time to examine them. The precedents given are ample to justify the keeping open the polls in Richmond on the 24th of October, and after sunset on the 23d and 24th, and to show that the extension of the time for voting in Richmond was not "unprecedented." I think it must be admitted that there was ample authority, of both law and precedent, for the voting done in Richmond after sunset of October 23d, and that it was demanded by fairness and justice. Hence, if your protest can be sustained at all it must be sustained upon the alleged illegal balloting and illegal prevention of balloting. In the interest of truth and justice, I will cheerfully give you all the aid in my power to develop the facts in regard to this matter. But I must here premise that you, in common with many others of all parties, over-estimate my powers and duties in this regard. It is unnecessary to inquire whether a technical construction of the laws of Congress might not give the District Commander power over this whole subject. I am not at liberty to be governed by such technical construction, but must construe the laws under which I am acting with reference to their general intent and purpose, and with reference to the fundamental principles of American Government.

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The clear intent and purpose of the laws of Congress were to give the people of this State (excluding the disfranchised) a fair and free opportunity to " tablish a Constitution and civil government for the State loyal to the Union," with such form of Constitution as they might freely select, subject only to the conditions prescribed by Congress. This was to be done in the usual manner, through the agency of a representative Convention, whose acts should be subject to the free ratification or rejection of the people, and, if ratified by them, then to final acceptance or rejection by Congress.

It is a fundamental principle of representative government as universally recognized and observed in this country, that every legislative body shall be the sole judge of the "elections, returns and qualifications of its own members." This is not a mere granted power. It is an essential, inherent right. Without it, a representative body, as that term is understood in this country, could not exist. Especially is this true of a Constitutional Convention which is to frame the fundamental law of a State. Without such power, whom would such a body represent? Certainly not the people, but more nearly the single functionary in whom was lodged that power of judgment.

But the language of the law of March 23d is also clear on this subject, and is in exact conformity with the principles above enunciated. It is as follows: “And upon receiving said returns he (the District Commander) shall open the same, ascertain the persons elected as delegates according to the returns of the officer who conducted said elections, and make proclamation thereof;" &c. This language is too clear to leave any doubt as to the limit of my powers and duties in reference to the matter.

While I cannot, for the reasons I have stated, take judicial action upon the second ground of your protest, and while I am unable to admit the existence of a reasonable doubt that my action in extending the time of election was not

only justified by the law and by precedent, but required by the law, by precedent, and by every principle of justice and fairness, I will submit to the Convention, when it assembles, the question of your title to seats therein; and I will, moreover, give to both parties, if they desire it, every facility and aid in my power to enable them to prepare, in advance, a full exposition of the facts in the case, to the end that they may be ready to present them to the Convention upon its assembling. Fortunately, it is not impossible, though it may cost much labor and trouble, to ascertain the truth of the whole matter.

While I do not wish to anticipate the result of any investigation that may be made, it is proper for me now to notice, so far as my present knowledge enables me, the circumstances specifically referred to in your protest.

You refer to the fact that the polls were closed at the appointed time in two of the wards, while they were kept open in others, and think they ought to have been kept open in all, if in any. The voting had almost ceased some time before sunset in two of the wards, and nearly all of the registered voters had voted. Why then keep open the polls longer than sunset in these two wards? I can see no reason, unless to give time to hunt up representatives for absent or deceased voters. If legal voters had failed to come to the polls during the appointed time, they had forfeited their right to vote at that election. And in the two wards referred to there was ample time for all to vote in the two days appointed. But in the other three wards two days were not sufficient. The voters were at the polls, in large numbers, waiting an opportunity to vote, at sunset. Whatever fault had been committed was mine, in not giving sufficient time, and mine was the duty to apply the remedy.

You object to the fact that the polls were kept open the longest in the ward where the disproportion between the white and black voters, in favor of the blacks, was the greatest. To this it is sufficient to answer that the polls were kept open, in each and every ward, until all registered voters who were present had voted, and no longer.

You also call attention to the alleged fact, which you think to be "its own comment," that "from 7 o'clock, P. M., on the third day, until the hour of closing the polls that night, there were more black votes polled than were polled at the same place on any one of the preceding days, although the period of voting on each day was longer by several hours than the time occupied on that night." Your understanding of the facts differs materially from the official report of the officers in charge of the polls. According to that report, the rate of voting during the night of the 24th was somewhat more rapid than during the days of the 22d and 24th, but less rapid than on the 23d.

The reason why it was more rapid in the night than during the day of the 24th I will explain, and the conclusion to be drawn from the facts of the case is quite the reverse of the one you appear to have drawn. I visited the polls you refer to (that of the third ward) about sunset, and watched the balloting for a considerable length of time. I found the officers working very slowly, and consuming very much time in examining the registration records and files of oaths for the purpose of deciding; without possibility of error, the large number of doubtful cases that came before them. There were several hundred persons waiting at the polls to vote, and it seemed doubtful whether, at the then rate of progress, the voting could be finished that night. Believing from my own observation that the officers were more particular than their duty required, I

ordered them to reject, at once and without delay, the votes of all persons who were not clearly entitled to vote, and thus give to those who were clearly so entitled an opportunity to vote before their powers of endurance should be entirely exhausted. Many of them had been standing several hours waiting for their turn, and if voting were not expedited some of them would be compelled to wait all night; for I had, at sunset, placed a line of sentinels around the crowd of voters, and ordered that none should be admitted after that time, and hence if any person left the polls after sunset he could not return. It is but right to add that this course was taken upon the representations of gentlemen of the "Conservative" party, that the extension of the time for voting was being availed of by the other party for the purpose of polling fraudulent votes. The result of my order was that the voting after sunset was more rapid than before, and it may be reasonably inferred that a larger number of votes were rejected than would have been but for such orders.

I will here add that the slow balloting of the colored voters in general, and consequent necessity for extension of time, arose from the great fidelity with which the officers of the election discharged their duty, the result of which was the rejection of several hundred votes, many of them, I am fully satisfied, of persons who had actually and legally registered, but which had to be rejected because of some defect in the registration, or imperfect memory of the voter. What you state in reference to the closing of the polls for white voters in Madison ward, while the polls for colored were kept open, is proper subject for full investigation. I can only say now that the brief investigation made by me on the spot, not more than two or three hours after the alleged occurrence, failed entirely to sustain your allegation. All the officers of election, and the police officer in charge at the window, unanimously declared that no such announcement was given by any officer of the election, nor any other person in the room, and that in fact the poll was not closed.

It may be pertinent to remark, as bearing upon the importance to be attached to this matter, that the voting at the polls for whites had almost ceased some time before sunset, that several hours of the next day were given them to vote, and that, at most, only fifty-six white registered voters in that ward, out of a whole number of fifteen hundred and fifteen, failed to vote. I do not think it will be seriously alleged that any white voter in that ward was deprived of his right to vote.

“To illustrate the fraudulent manner in which the election was managed,” you cite specially the case of a black man whose vote was rejected one day, and who applied to vote the following day, saying he had, in the meantime, been registered at Mr. Hunnicutt's office." The facts referred to in this matter are as follows: On the first day of the election it was reported to me that large numbers of colored voters, who had undoubtedly registered, were being rejected at the polls, and I was appealed to to remedy the evil. I directed that the names, residence and a full description of all such persons be taken down and sent to me, and I would cause justice to be done in the matter as far as possible. My intention was simply to secure, while it could be done, the information necessary to a correct judgment, in case the election should be contested, as to how much wrong, if any, had been done; but the not unnatural inference of interested parties was, that I intended to compare the lists thus furnished me with the registration records, see if the rejected persons were really entitled to vote, and if so entitled, to send the lists to the polls with orders that their votes

be received. Hence, persons so “registered were given ballots and sent back to the polls. Of course, the lists of these persons were not sent to the polls, and the so-recently "registered voter" was no better able to vote than before. It is not alleged by you, and I have no reason to believe, that any one of the persons "registered at Mr. Hunnicutt's office" did actually vote. And I submit that the case you cite, so far from illustrating "the fraudulent manner in which the election was managed," proves very clearly the absence of any such fraud as you have imagined,

That threats, intimidation and actual violence in more than one instance were, as you allege, resorted to by blacks, to control the votes of persons of their own race, is no doubt true. Whether the effect was to change any considerable number of votes may be difficult to determine, but is certainly a legitimate subject for investigation; and if it appear that such has been the effect, it will be just ground for contesting the election. It is due to yourselves and to the people of Richmond for me to say that, from all the information I have yet been able to obtain, I believe the number of votes thus illegally controlled was quite insignificant. Indeed, it may well be doubted which was least effectual in preventing absolute freedom of election—the threats of physical violence on the part of the blacks, or the threats of deprivation of labor, and consequent starvation, so freely made by the whites before the election, and, in many instances, executed since.

The registration in Richmond was made more than three months before the election, and was twice revised after due public notice. The lists of voters, with residence and full description, were printed and published immediately after the first registration. All persons were invited, and many personally solicited, to scrutinize those lists, and report the names of persons illegally registered. Yet not a single name was so reported. Under these circumstances, I submit it to your candid judgment whether complaints of illegal registration, or of a colored majority in the election, are at all reasonable?

I desire, gentlemen, to assure you of my high personal regard, and to express my gratification that the important subject of your protest has been presented to me in such form and from such source as to justify me in giving it this full consideration.

Your obedient servant,

J. M. SCHOFIELD.
Major-General.

OFFICIAL:

J. A. CAMPBELL, 2d Lt. 5th Art'y, Brevet Lt. Col. U. S. A.,

Acting Assistant Adjutant-General.

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CHRISTIANSBURG, MONTGOMERY County, Va., November 4, 1867.

Major-General J. M. SCHOFIELD, Commanding First Military District :

Your petitioners, voters of Montgomery county, would respectfully ask you to set aside the election lately held in this county for a delegate to the Convention. We would respectfully represent that A. H. Flanagan, returned as the delegate elect, is ineligible to a seat in said Convention, under the "Reconstruction laws of Congress," and your orders made and published pursuant thereto, by reason of his having held office prior to the war, and as such officer, took an oath to support the Constitution of the United States, and afterwards voluntarily aided and abetted the rebellion. We herewith enclose ample testimony to prove these points, and we further pledge ourselves to prove them to the satisfaction of any unbiased tribunal in the land.

Very respectfully,

RO. C. TRIGG,

JAS. P. HAMMET,
JOHN N. LYLE, JR.,
A. A. PHLEGAR,
JAS. C. TAYLOR,

J. R. HAMMET,

N. B. HARVEY,

H. C. BARNETT,

JOHN C. BIRCHFIELD,

ROBERT A. G. LATIMER,

J. W. SHIELDS,

A. D. SHIELDS,

THOMAS J. HENDRY,

N. H. COCKE,

ROBERT A. MILLER,

HAM. W. SHIELDS,

JAMES T. MILLER,

ROBERT L. PRESTON,

WILLIAM G. GUERRANT,

GEORGE G. JUDKIN.

CERTIFICATE OF JAMES M. WADE, CLERK,

In Montgomery County Court, June term, 1858:

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Adam H. Flanagan, who was, on the 27th day of May, 1858, by the qualified voters of this county, duly elected a surveyor for this county for the term of six years, commencing on the 1st day of July, 1858, appeared in court and took the oath of office, the oath of fidelity, the oath to support the Constitution of the United States, and the oath to suppress duelling, and with security entered into and acknowledged a bond conditioned for the faithful discharge of the duties of his office; which bond is ordered to be recorded.

A Copy-Teste.

JAMES M. WADE, Clerk.