REPLY

OF

MR. JAMES C. SOUTHALL,

IN REFERENCE TO A

PETITION CONTESTING HIS SEAT.

WITH ACCOMPANYING LETTERS.

To the Members of the State Convention:

I beg leave to make the following statements, and to present the following considerations, in reply to the petition of Mr. Frederick S. Tukey contesting my seat in this body.

I must premise that I think I have reason to ask that Mr. Tukey's petition shall be dismissed at the outset, on the ground that he has neglected and refused to give me the usual notice and specifications required in such cases. There is no actual law of contested elections applying to members of a State convention for the simple reason that all conventions are exceptional occurrences in the government of a State, but the regulation's provided to apply in the case of contested elections in the Legislature are to be presumed to be fair and just as a rule to govern such contests on the occasion of a State convention.

The existing statutes of Virginia are the law of the State, except in so far as modified by the military law, and it will be, of course; the policy of the Convention to depart only in necessary cases from the practices and traditions of the people of Virginia, or from the principles governing all parliamentary bodies.

I am happy to know that my competitor concurs in the opinion that the existing law of Virginia should govern in this case, and that we are, therefore, agreed as to the basis for disposing of this preliminary question. In Mr. Tukey's letter of November 4th, 1867, addressed to General Schofield, and printed by order of the Convention, he refers to chapter 10 of the Code of Virginia, and the law controlling a contested election of a senator or member of the House of Delegates, and remarks that he "presumes this law holds good with reference to delegates to a constitutional convention."

It only becomes necessary, therefore, to ascertain what is the law of Virginia on this subject, as laid down in the said tenth chapter of the Code. By reference to section one of this chapter, it will be seen that it is required that "any

person intending to contest the seat of a senator or delegate to the General Assembly, shall, within twenty-five days after the day on which the election commenced, give to the other notice thereof in writing, and a list of the votes he will dispute, with his objections to each, and of the votes improperly rejected, for which he will contend. If he object to the legality of the election, or the eligibility of the person elected, the notice shall set forth his objections," &c.

Mr. Tukey did not notify me of his purpose to contest my seat until the 22d day of November, more than twenty-five days after the election; and he not only omitted to give me a list of the votes he disputes, and his objections to each, and also to specify the grounds of his assertion that I am ineligible, but when I wrote to him, politely asking for more particular information, he positively declined to state how or why I was ineligible, or to state what irregularity had been committed in the sixth magisterial district of Augusta, or to specify anything with reference to Porter's precinct in Albemarle, except that "improper influence" had been exerted. One of the chief points made in his petition he did not mention at all.

The Convention had been in session almost a week before I saw a copy of his petition, and that I was shown in one of the newspapers of the city. His protest, or protests, filed with General Schofield, and the letters of Captain Jackson, Registering Officer of Augusta county, both containing averments pertinent to the subject not mentioned in his petition, I have only been able to get sight of this seventeenth day of December.

The whole letter and spirit of the election law is violated by entertaining an application made in such a manner.

I could not prepare my case, because I did not know the quarter from which, or the missile with which, I would be assailed. How could I protect myself against the charge about the sixth magisterial district in Augusta, when Mr. Tukey declined to inform me what was the matter? How could I prepare evidence, or arguments, with regard to Porter's precint, in Albemarle, when I was only allowed to know that there was some "improper influence" exerted there, but was designedly kept in the dark as to what it was? How could I investigate the question of my eligibility, when the grounds on which it was to be assailed were cunningly shut up in the breast of my accuser?

The original letter of Mr. Tukey to me, notifying me that he would contest my seat, a copy of my reply to the same requesting more specific information, and his response to that refusing such specific information, are herewith filed, marked A, B, and C, and, as will be seen, substantiate the statements I have made on the subject.

I respectfully ask the Convention, therefore, to dismiss this petition at the threshold, on the ground that the law of contested elections, to which my adversary appeals, has been not only violated, but grossly violated, and that this contest has been sprung upon me contrary to the provisions of said law designed to secure a full and fair notice to the sitting member. That law is positive, and is presumed to be wise; my competitor and myself have both appealed to it. It is decisive of this proceeding.

If the Convention is not persuaded, however, with me, that enough has been said to dispose of the case, I proceed to remark that even if I (as Mr Tukey alleges) am ineligible to the Convention, the consequence would be very different from what Mr. Tukey seems to anticipate. In that case Mr. Tukey would

not get the seat; but there would be a new election, and there is thirteen hundred conservative majority in the district.

If A should receive one hundred votes in a county election, and B should receive twelve hundred, and the fact should be developed after the election that B was a minor, and therefore ineligible, in such a case A would not step into the seat, but there would be another election ordered. It would be against all ideas of propriety to force A on a constituency in which there was a majority of eleven hundred against him, in a vote of thirteen hundred. The people doubtless thought, and are presumed to have thought, B eligible, and they are not to be punished for an innocent ignorance of the fact.

In 1831 John Minor Botts and John G. Williams were candidates to represent the county of Henrico in the House of Delegates of Virginia. Mr. Williams having received a majority of the votes cast was returned as elected, and took his seat in the House of Delegates. Mr. Botts presented a memorial to the House contesting Mr. Williams's seat on the ground that Mr. Williams was ineligible for the reason that he was not a citizen of Henrico, but a resident of the city of Richmond. Mr. Williams admitted that he was a resident of Richmond city. The Committee of Elections reported that Mr. Williams was ineligible, and the House passed the resolution reported to that effect. Thereupon the House ordered that a writ of election issue to the sheriff of Henrico "to supply the vacancy just occasioned by the decision just made by the House.” And a new election was held, and Mr. Robert A. Mayo was elected to the seat. This case is conclusive. See Journal of House of Delegates for 1831-’32, p. 42–’3, and p. 256.

But again: from information received by me, I charge that Mr. Tukey himself is ineligible, and that so far from stepping into my shoes, if I am unseated, he cannot even become a candidate for the Convention. I learn that Mr. Tukey was a registering officer in the town of Staunton, in the county of Augusta, from the beginning of the registration, and that he continued to act in this capacity until the work was finished. A few days before the election he offered to resign, but I am informed at General Schofield's headquarters that his resignation was never accepted. Whether accepted or not, it was not even tendered until the registration had been accomplished. I contend that this fact of Mr. Tukey's having acted as a registration officer disables him from being a member of this Convention. As a registering officer, he had it in his power (I do not charge that he actually did abuse that power) to control materially the vote of the magisterial district in which he acted. He could wield a large influence in admitting to the registry whomsoever he pleased, and he had a potential voice in excluding his opponents. It would be monstrous, that, under such circumstances, after the registration was complete, he should be permitted to become a candidate for the very suffrages which he himself had adjudged to be the only ones to be admitted on the registration books.

Such a proceeding would shock the moral sense of the entire community, and of this Convention. It would be as if, at a shooting match, a man should be allowed to load the weapons of his competitors. It would be as if the man who holds the box in a faro-bank were allowed to bet on the cards. It would be as if a commissioner in chancery should, after making up his report, take a fee in the case and appear as an advocate. It would be like a sporting man claiming that his trainer should go into the stables and groom all the horses that were entered against him.