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Therefore, on abstract grounds, the registrars of the State, under the late acts of Congress, must be precluded from offering for the Convention to which that registration looked. Permitted to become candidates, the election would be no longer a free one. We might have a body composed of Federal officers who had controlled every district in the State.
As for the resignation of Mr. Tukey, that is like the fowler getting over the hedge after he has spread his net.
But the matter is not left to a priori reasoning. With his usual sagacity General Schofield has anticipated and provided for the very case in question. By General Orders No. 68, dated October 4, 1867, section 6, he has laid down positively the law on the subject. This is the language of that order: “No candidate for election as delegate to the Convention, shall officiate as registering officer or assistant at the election.”
The two capacities are incompatible with each other. Persons were required to elect. If they wanted to be candidates for the Convention, they could not act as registration officers. If they wanted to conduct the registration, they could not be candidates.
Thus I have proved, as I think, 1, That, cutting up this whole proceeding by the roots, Mr. Tukey's petition ought not to be entertained. 2. That, if entertained, and I should be adjudged disqualified to hold my seat, a new election would have to be ordered. 3. That Mir, Tukey, in any phase the matter may assume, is out of the question, he being ineligible to the Convention, in consequence of having been a registration officer,
I proceed now to notice the points made in Mr. Tukey's petition against me, and against my right to hold my seat, I cannot forbear to say that, in my opinion, they are frivolous and groundless in the extreme ; but, of this, the Convention must judge when it shall have read this paper.
The first point presented is this ; That “I am ineligible for the reason that I am not a registered voter,” and, it is added, “that I declined to register, because I could not conscientiously take the required oath, and because (as I am said to have affirmed) it would preclude me from making such criticisms on the military bills, through the columns of my paper, as I might desire to.”
It is true I did not register, but it is not true that I said that I could not conscientiously take the registration oath, nor did I refrain from taking that oath for the reason that it would preclude me from criticising the military bills.
I could have registered if I had desired to. I had never held any office whatever, State or Federal, nor been a member of Congress, or of any State Legislature, and there was nothing, therefore, to prevent my registering.
Under the old Constitution and laws of Virginia, I was eligible to a State Convention. The present Convention was, however, ordered by the Congress of the United States, Whether I am eligible to it, must be determined by the act of Congress calling the Convention, We must look to the Reconstruction Acts to ascertain who may vote, and who may be elected, to the State Conventions called by them.
There is only one clause in the Reconstruction Acts referring to the subject of eligibility to State Conventions. It is in the fifth section of the original bill passed March 2, 1867. It is as follows: “ Provided that no person excluded from the privilege of holding office, by said amendment to the Constitution of the United States, shall be eligible to election as a member of the Convention to frame a Constitution for any of said rebel States.”
If this clause reaches me, I am ineligible; if it does not reach me (and no order of General Schofield reaches me) I am eligible. If I come within the disabling clause of the third section of the Constitutional Amendment, that is, if I ever held any Federal or State office and afterwards engaged in the rebellion, I am prohibited from being elected to the State Convention. As I have stated, I never held any office whatever previous to coming to this Convention, and it is obvious, therefore, that I am as eligible as any man on this floor. The fact of my not having registered and voted has no pertinence to the subject of my eligibility; it is precisely parallel to the case of a candidate for the Legislature who refrains from voting in the election. Indeed, under our old freehold suffrage a man who was not a freeholder, and therefore no voter, was eligible to office. He could not vote, yet he was eligible to office. I could have registered and voted ; much more am I eligible—apart from the consideration already urged, namely this, that the Reconstruction Acts expressly define who are ineligible, and, therefore, leave all not so excluded in the category of the eligible.
Why I did not register and vote is a question with which the Convention has nothing whatever to do ; it was not because I entertained more extreme views than my neighbors. Many reasons may be imagined which might prevent a person, qualified to register and vote, from registering and voting—he may be eccentric and acting under some resolve never to vote; he may have been sick, and unable to get to the registering office ; he may have been out of the country when the registration took place; he may have lived in some obscure spot and never heard of the registration. t
There is the highest authority for the correctness of the preceding views. Reference is made to Document No. 1, p. 39, printed by the Convention: There we have “Major-General Schofield's Opinion in reference to Eligibility to election as delegates to the Convention.” I find this extract on the page mentioned from a letter or order of General Schofield, dated September 24, 1867:
“The only restriction imposed upon the registered voters, in the selection of their delegates to the Convention, is that contained in the 5th section of the Act of March 2d., viz.: “No person excluded from the privilege of holding office by said proposed amendment to the Constitution of the United States, shall be eligible to election as a member of a Convention to frame a Constitution for any of said rebel States.’”
The second point made by Mr. Tukey is, that the election in the sixth magisterial district of Augusta was conducted in an illegal manner. He states that the ballot-boxes were opened after the balloting commenced, the votes taken out and his name erased, &c. By reference to Mr. Tukey's letter to me, dated November 21st, notifying me that he intended to contest my seat, it will be seen that this point is not alluded to. By reference to his second letter to me, dated November 25th, in which he specifies two other grounds of complaint, this point is still not alluded to. I never heard of it until I had been in Richmond a week, and saw it in Mr. Tukey's petition to the Convention, printed in the New Nation newspaper.
I deny the statement (if it is to be entertained at this late hour), and call for the proof. I have heard that one ballot was allowed by the election officers to be taken from the ballot-box, and the party permitted to eorrect his vote. Beyond this I am informed that there is not one word of truth in the charge, How could there be if, as is affirmed by Captain Jackson, the registering officer and three commissioners conducting the poll are “men of high standing and well known integrity?”
It is proper to explain to the Convention that the Radical vote in the sixth magisterial district of Augusta was cast for William F. Gordon, Esq., who was also a candidate against Mr. Tukey and myself. How Mr. Gordon got this vote at the New Hope precinct, Mr. Tukey can perhaps say better than I can.
I repeat again, that I deny the statement that the ballots (save possibly one) were taken from the box and changed. It is a matter of evidence, which will be produced to maintain my denial. I am curious to know how Mr. Tukey will maintain his averment. At the same time. I remark that if it be true that as many as half a dozen ballots were removed from the ballot-box, it will only have the effect of giving to Mr. Tukey those few votes which may have been tampered with.
Mr. Tukey also complains that in this same district there was some violation of the literal terms of section 12 of General Orders No. 68, in this, to-wit: that the votes were not counted on the spot at the close of the polls, and the ballotbox then and there sealed as directed in the orders, but that the counting of the ballots was postponed until the following morning, and the ballot-box not sealed at all. This is also a matter of proof; witnesses will be examined as to the allegations made. But I remark that, admitting the fact to be as stated, it does not vitiate the poll. The details of General Schofield’s order, quoted, are merely intended for the governance of the conductors of the election, and are merely precautionary. They are what the lawyers call “ directory;” the officer may subject himself to punishment for neglecting them ; but if there is reason to believe that no injustice has been done, and that the returns are all correct, these returns are not affected one way or the other. The question is, Have we correct returns of the vote of this magisterial district? If we have, it makes no difference whether the ballots were counted at Sunset Or at Sunrise. Suppose the commissioners of election, instead of depositing the ballots in a box as ordered, had deposited them in a bag, they would have violated Orders, but the votes would have been good.
By General Orders No. 77, from military headquarters, dated November 2d, this Convention was ordered to assemble in the Capitol at 12 o'clock, on the 3d day of December. Suppose that we have completed and promulgated our Constitution, and it shall appear that the Convention did not actually assemble until half-past one o'clock on the third of December, would the Constitution be an illegal instrument? It was our duty to obey the order and be here at twelve o'clock, but our disobedience would not vitiate the proceedings of the Convention.
In 1857 there was an election for judge in the seventeenth judicial circuit of Virginia. The candidates were Mr. Fulkerson and Mr. Stras. The poll from seven of the precincts of Lee county were not properly certified. At six of these precincts the poll was not certified by either the conductors or commissioners of election. If the poll from these precincts was rejected, Mr. Stras was elected; if the votes were counted, Mr. Fulkerson was elected. The case was submitted to the Attorney-General of the State, who gave it as his opinion that Mr. Fulkerson was elected. He said:
“It is true that the law requires the conductors and commissioners to certify the correctness of the poll. This must be, as it has ever been, construed as directory, but not essential to the validity of the poll. It was never designed to defeat the popular will by a deficiency in formalities, which the law only prescribed to secure its full and free expression ; and however important these may be, it would be monstrous to set aside the voice of the people, because a public officer failed to do his duty.”
The facts of the case and the opinion of the Attorney-General being submitted to the Governor of the State, he fully concurred in the reasoning of the law officer of the State, and commissioned Mr. Fulkerson. The Governor said :
“No mere failure of ministerial and executive officers to do their duty Call either vitiate or nullify the votes of the people to elect a judge or other officer, if they, being legal voters, did in fact, at the time and places, and in the manner prescribed by law, declare their votes. * * The officers, conductors and commissioners, at some of the precincts, have incurred penalties, but the legal voters are not thereby to lose their votes actually polled.” (See the case reported in the Quarterly Law Journal for 1858, p. 47.)
In this case, at six of the precincts of Lee county, the poll was not certified by either the conductors or commissioners of election ; at the seventh precinct it was not certified by the conductor. The authentication of these returns was wanting. The seal of the election officers was not on them. They might have been spurious papers. In the present case between Mr. Tukey and myself, with regard to the sixth magisterial district of Augusta, the votes were, beyond question, cast as returned, the officers eonducting the election certify in properform to the poll, the central board of officers at the court-house further add their authentication, and General Schofield examines and endorses the returns. The whole irregularity here is that there was a few hours’ delay in counting the votes, and that the ballot-box was not technically “sealed,” although remaining in the custody of the sworn officers of the United States.
But if all the votes of the sixth magisterial district of Augusta are thrown out, there being only one hundred and thirty-one cast there for me, it will not affect my election, my majority being over three hundred in the three counties.
Another specification is, that in the county of Albemarle Mr. T. W. Savage, a Commissioner of election, erased Tukey's name on some tickets, and substituted his own. I suppose it is not meant that this was done after the ballots had been deposited in the ballot-box; if it was, of course Mr. Tukey is entitled to the votes; but if the charge is (and I so understand it) that Tukey's name was erased from certain tickets before the election, or before the ballots were voted, there is no sense in the point. It is very common to strike names off of a ticket and substitute others; the voter is presumed to know what names are On his ticket, and if he does not, that is his own fault, and he must take the conSequences. It is to be presumed that the few persons who voted for Mr. Savage (a radical in politics) meant to vote for him; and if Mr. Tukey affirms that they did not, I affirm that the persons who voted for Mr. Tukey did not mean to vote for him.
Of course depositions will be taken, however, if this petition is not abandoned, to ascertain the exact facts in the premises.
The last point (and the most amusing) in Mr. Tukey's petition, sets forth that at Porter’s precinct, in Albemarle, one of the commissioners of the election told the colored voters “ that the Republican candidates were Democrats, and if elected, would vote to re-enslave them again,” and therefore, says Mr. Tukey, these votes ought to be thrown out. The proposition amounts to this, that wherever, after an election, it can be proved that a lie was told to a voter previous to the election, the vote is to be thrown out; and as every voter in every election has some lie told him, either privately, or from the stump, or through the newspapers, the result would be that all the votes in all elections ought to be set aside, and we should have no elections at all. In an election for constable, named A, one D tells C that A had stolen a pig, and C votes for B (whom he had intended to vote for all along), and, according to Mr. Tukey's views, the vote ought to be thrown out. In a presidential election Mr. Clay is charged by A, in the presence of B, with having been guilty of “bargain and corruption” on a certain occasion, and B votes for Mr. Polk; this vote, according to Mr. Tukey, ought to be thrown out.
Even if the principle were to be for a moment accepted, Mr. Tukey would have to prove that the remark attributed to the election officer was made, and secondly, that the colored voters who voted for me were influenced by it, which second point could only be proved by taking the deposition of each colored voter in question, amounting to nearly two hundred and fifty.
But even if this vote were taken from me, I have still a majority of some seventy voters in the district. •
In view of these statements, I hope the Convention will dismiss the petition of Mr. Tukey at once, as unworthy of farther occupying the attention of the Convention, or even of the Committee on Elections,
I would add that since my arrival in Richmond I have learned, at General Schofield's Headquarters, that a mistake was made in adding up the returns from Albemarle county, and that my majority in that county over Mr. Tukey is two hundred greater than reported.
As soon as I can procure an official copy from General Schofield's office, I will file with this paper a tabular statement of the election returns from the district which I represent, which I shall also ask to have printed.
Respectfully, --J.A.S. C., SOUTHALL, December 17, 1867.