2. A Bill concerning the Election of Members of General Assembly
Be it enacted by the General Assembly, that the Delegates for the several counties, and the City of Williamsburg and Borough of Norfolk, and the six Senators for one of the four classes of districts, in the room of those who will annually be displaced, shall be chosen, in the manner hereafter directed, on the first Monday of September in every year, and shall meet together, and with the remaining Senators, on the first Monday of October then next following in General Assembly, at the place the last preceeding General Assembly shall have sat in or adjourned to, unless such place be in possession of a public enemy, or infected with the plague or smallpox, in which case they shall meet at such other place as the Governor with advice of the Council shall appoint and notify by proclamation.1
Every male citizen2 of this commonwealth, aged twenty one years, other than such as have refused to give assurance of fidelity to the commonwealth, being possessed, or whose tenant for years, at will or at sufferance is possessed of twenty five acres of land, with a house, the superficial content of the foundation whereof is twelve feet square, or equal to that quantity, and a plantation thereon, or fifty acres of unimproved land, or a lot or part of a lot of land in a city or town established by act of General Assembly with a house thereon, of the like superficial content or quantity, having in such land an estate of freehold at the least, and, unless the title shall have come to him by descent, devise, marriage or marriage settlement, having been so possessed six months, and no other person, shall be qualified to vote for Delegates to serve in General Assembly for the county, city or borough respectively in which the land lieth. If the fifty acres of land, being one entire parcel, lie in several counties, the holder shall vote in that county wherein the greater part of the land lieth only, and if the twenty five acres of land, being one entire parcel, be in several counties, the holder shall vote in that county wherein the house standeth only. In right of land holden by parceners, jointenants or tenants in common but one vote shall be given by all the holders capable of voting, who shall be present and agree to vote for the same candidate or candidates, unless the quantity of land, in case partition had been made thereof, be sufficient to entitle every holder present to vote separately, or unless some one or more of the holders may lawfully vote in right of another estate or estates in the same county, in which case the others may vote if holding solely they might have voted.
Every person having such a freehold in the City of Williamsburg or Borough of Norfolk as will qualify him to vote for Delegates to represent the county, and also every freeman3 aged twenty one years, being a citizen of the commonwealth, and not having refused to give assurance of fidelity, who shall be a housekeeper, and shall have resided for six months in the said city or borough, and shall be possessed of a visible estate of the value of fifty pounds at the least, or shall actually have served as an apprentice to some trade within the said city or borough for the term of five years, and shall have obtained a certificate of such service from the Court of Hustings under the common seal of the city or borough, and no other, shall be qualified to vote for a Delegate to represent the city or borough respectively in General Assembly. Every person qualified as aforesaid to vote for Delegates, not being an Alderman or Assessor of the public taxes nor otherwise disqualified,4 shall be capable of being elected a Delegate for the county, city, or borough, or Senator for the district in which he resides. No person who shall have served as a member of the Legislature for seven years in the whole shall be afterwards compellable to serve therein. Any elector qualified according to this act failing to attend any annual election of Delegates, or of a Senator, and, if a poll be taken, to give, or offer to give his vote shall pay a double portion5 of all such levies and taxes as shall be assessed and levied in his county the ensuing year, unless being required by the Assessors of his hundred, who ought in such case to call upon him to make his excuse, he shall satisfy them; or they shall otherwise know that his failure was occasioned by grievous sickness, infirmity, or necessary absence in discharge of a public duty elsewhere;6 and for enabling them to discover who did and who did not vote, the clerk of every county court shall deliver to the Aldermen of his county, before their meeting to appoint Assessors, a copy of the poll books taken at the preceeding election of Delegates, and the Aldermen shall deliver so much thereof to the Assessors of the several hundreds as may be requisite for their information.7 Every elector going to, abiding at, and returning from an election, shall be privileged from arrests one day for every twenty miles he shall necessarily travel, exclusive of the day of election; and any process against such elector executed during such privilege shall be void. Upon the election of a Senator, and also of a Delegate or Delegates when the election of such Delegate or Delegates cannot be determined by view, the sheriff, or in his absence, the under sheriff of the county, or the Mayor of the city or borough, shall in presence of the candidates, or their agents, cause the poll to be taken in the court-house, or if that be in a town infected with any contagious disease, or be in danger of an attack from a public enemy, at some other place according to these directions: He shall appoint such and so many writers as he shall think fit, who shall respectively take an oath, to be administered by him, or make solemn affirmation that they will take the poll faithfully and impartially. He shall deliver a poll book to each writer, who by ruling lines thereon, having made as many columns as there shall be candidates, shall enter the name of each candidate in a distinct column at the head thereof, and under his name in the same column the name of every elector who shall vote for that candidate; and after the names of all the electors who will give their votes (proclamation having been made three times at the door of the court house by the officer requiring those who had not been polled to come in and give their votes) shall have been thus entered he shall conclude the poll, and declare the candidates for whom the greatest number of votes shall appear to have been given to be elected; or if the greatest number of votes for several candidates shall be equal with one, another may declare which of the candidates he will elect. If the numbers of votes for several persons to be a Senator be equal, and the votes of the returning officers be equal also, it shall be decided by a lot taken by the said returning officers at their meeting, which shall be the seventh day after the day of election at such place as shall be appointed by the last Senator of the district then surviving.8 No elector shall be admitted to poll a second time at one and the same election, although at the first time he shall have given but a single vote. If the electors who appear be so numerous that they cannot all be polled before sunsetting; or if by rain or rise of water courses many of the electors may have been hindered from attending, the sheriff or under sheriff may, by request of one or more of the candidates or their agents, adjourn the proceeding on the poll until the next day; and so from day to day through the week9 if the same cause continue, giving public notice thereof by proclamation at the door of the court-house, and shall on the last day of election conclude the poll according to the directions aforesaid. On complaint to either House of Assembly of an undue election or return of any member to their house, such house shall forthwith appoint some day for trying the same as shortly as shall be consistent with fair enquiry; but not within less than fourteen days after such complaint lodged; whereof notice shall be given by the Speaker to the party against whom the complaint is if he be absent; which day of trial may be lengthened from time to time on good cause shewn to the house and notice to the absent party. [On the day appointed for the trial, the petitioners, their counsel and agents shall be called to the bar of the house, and the door being then locked, the names of all the members present shall be put into six boxes or glasses, and the Speaker shall draw one name out of each by regular rotation, to be noted by the clerk as they are drawn, until the number drawn shall be forty nine if the complaint be before the House of Delegates, or nine if before the Senate. If, among those drawn, there be the name of any member who is a party to the said complaint, or who shall have voted in the election, he shall be set aside; and if any other member whose name is drawn shall shew good cause against his being put on the trial, he shall be excused, and in their stead others shall be drawn to make up the number before specified: it shall be lawful for the petitioners to name one other member present, and the sitting member another, to be of the committee, who may for the like causes be set aside or excused, and the party permitted to name another so often as it shall happen, or on their failure to nominate, the number shall be made up by drawing; which being done the door shall be opened, lists of the names drawn shall then be given to the parties, their agents, or counsel, who, with the clerk of the house, shall forthwith withdraw and strike off one alternately (the petitioners first beginning) until the number be reduced to thirteen if the matter be before the House of Delegates, or five if before the Senate; which thirteen or five, as the case shall be, together with the two members named by the parties, shall be a select committee to try the said complaint, and shall forthwith take the following oath to be administered, in presence of the house, by the Speaker. “You shall swear that well and truly, according to the best of your skill and judgment and the evidence which shall be given, you will try the complaint which has been lodged by against that you will nothing say or do therein, or leave unsaid or undone, for envy, hatred, malice, love, fear or reward, but you shall try and determine the same truly and according to law. So help you God.” The said committee being sworn and not yet departed the house shall fix the time and place of their meeting, which time shall be within twenty four hours. They shall at their first meeting choose their chairman from among the members whose names were drawn by lot, and in case of an equality of votes, the vote of the member first drawn shall be decisive. The said committee shall have power to send for persons, papers and records, to administer oaths by their chairman, examine witnesses and to determine finally on the said complaint; and such determination shall report to the house to be by them carried into execution; they shall not adjourn themselves without leave of the house for any longer time than from day to day, nor do business but when all their members are attending; if they shall fail to meet within one hour after the time appointed, they shall adjourn and report the same to the house with the cause thereof, and the names of the absentees, who shall be subject to the censure or punishment of the house, unless they shew cause of unavoidable necessity for their failure; if there shall fail to be a committee for three several appointments successively, they shall be thereby dissolved, their past proceedings void, and another committee shall be chosen in the same way, and to proceed in the like manner as is herein before directed for the original committee, and so as often as the like case shall happen.]10 If any person sworn before the said committee shall give, or withhold, any evidence under such circumstances as would have constituted the same to be perjury, if done in presence of a court of record, the same shall be deemed perjury.
If upon any such trial it shall appear that equal numbers of qualified electors shall have voted for the petitioner and the sitting member; and the officer who conducted the election shall swear or solemnly affirm that if such equality had appeared at the election he would have declared the petitioner elected, such petitioner shall be deemed duly elected; and his name, instead of the name of the sitting member which shall be erased, shall be inserted in the certificate or return. No elector shall be polled before he shall have declared, if required to do so by any candidate or his agent, in what right he offers to vote and shall have taken an oath, which the officer conducting the election shall administer, or made a solemn affirmation in this form: “I do swear [or do solemnly affirm]11 that I do in my conscience believe myself to be duly qualified to vote for Delegates to serve in General Assembly for the county of according to the act of General Assembly, intituled, an act ”12 of which oath or affirmation a note shall be made in the poll book opposite and referring to the name of the person swearing or affirming.
The making such oath or affirmation falsely shall be perjury. The names of electors offering to be polled, but refusing to make such oath or affirmation, shall be entered on the poll books in separate lists with the names of the candidates for whom they voted, and shall be added to the poll if upon a scrutiny the votes be justified. The officer who shall conduct the election shall within twenty days afterwards deliver to the clerk of his county court or court of his city or borough the poll books to be by him preserved and recorded, and shall in the meantime suffer any candidate or elector, at his own expence, to take a copy thereof.13
The sheriff or under sheriff shall certify the election of Delegates in this form or to this effect: “Be it known to all to whom these presents shall come, that I sheriff [or deputy of sheriff] of the county of in my full county, held at the court-house thereof [or at ] on the day of in the year of our Lord by the electors of my said county, qualified according to law, caused to be chosen two Delegates for my said county, namely, and to represent the same in General Assembly. Given under my hand and seal the day and year aforesaid.”
The Mayor of a city or borough entituled to particular representation shall certify the election of a Delegate in this form or to this effect: “Be it known to all to whom these presents shall come, that I Mayor of the city [or borough] of at the court-house of [or at ] in the said city [or borough] on the day of in the year of our Lord by the electors of the said city [or borough] qualified according to law caused to be chosen a Delegate for the said city [or borough] namely, to represent the same in General Assembly. Given under my hand and seal the day and year aforesaid.”
The sheriffs or under sheriffs of the several counties of a district shall certify the election of a Senator in this form or to this effect: “Be it known to all to whom these presents shall come, that we sheriff [or deputy of sheriff] of the county of , sheriff [or deputy of sheriff] of the county of and sheriff [or deputy of sheriff] of the county of in our full counties, held at the court-houses thereof [or at ] respectively, on the day of in the year of our Lord by the electors of our said respective counties, qualified according to law, caused to be chosen a Senator for the district composed of the said counties, namely, to represent the same in General Assembly. Given under our hands and seals the day and year aforesaid.” The officers directed to make such certificates of elections as aforesaid, shall cause them to be delivered, those of Delegates, to the clerk of the House of Delegates, and those of Senators to the clerk of the Senate, one day at least before the succeeding session of General Assembly. For election of a Delegate or Senator, when a vacancy shall happen, a writ or writs shall be issued by the Speaker of that House whereof he was a member, but if the vacancy be occasioned by acceptance of an office, the writ or writs shall not be issued without the special order of the House; and the officer to whom such writ shall be directed, so soon after the receipt thereof as he may be able, shall dispatch messengers to14 give the electors notice thereof, as well as of the time and place of election, and shall cause the election to be made in the manner herein before prescribed, and shall have the same power of adjourning the proceeding upon the poll, as in case of a general election. The return of such writ for electing a Delegate or Delegates shall be in this form or to this effect: Upon the writ shall be endorsed these or the like words: “The execution of this writ appears in a schedule hereunto annexed;” and on another paper annexed to the writ shall be written, if the writ be for election of a Delegate for a county, these or the like words: “By virtue of this writ to me directed, in my full county held at the court-house thereof [or at ] on the day of in the year of our Lord by the electors of my said county qualified according to law I caused to be chosen a Delegate [or two delegates] for my said county, namely, to represent the same in General Assembly. Given under my hand and seal the day and year aforesaid;” and if the writ be for the election of a Delegate for a city or borough, these or the like words: “By virtue of this writ to me directed at the court-house of the city of [or borough of ] [or at in the borough of ] on the day of in the year of our Lord by the electors of the said city [or borough] qualified according to law, I caused to be chosen a Delegate for the said city [or borough] namely to represent the same in General Assembly. Given under my hand and seal the day and year aforesaid.” And the return of the writs for electing a Senator shall be in this form or to this effect: Upon each writ shall be endorsed these or the like words: “The execution of this writ appears in a schedule hereunto annexed;” and on another paper connecting the several writs together shall be written these or the like words: “By virtue of these writs to us directed, in our full counties held at the court-houses thereof, respectively [or at ] on the day of in the year of our Lord by the electors of our said respective counties, qualified according to law, we caused to be chosen a Senator for the district composed of our said counties, namely to represent the same in General Assembly. Given under our hands and seals the day and year aforesaid.”
And the officers conducting the elections shall make their said returns to the General Assembly, if it be sitting immediately, or if it be not sitting, one day at least before the time to which the writ shall be returnable. A sheriff, under sheriff, or Mayor, refusing to take the poll when he shall be required by a candidate or elector, or taking it in other manner than is herein before prescribed, or making a false certificate or return of the election of a member or members to serve in the General Assembly, or neglecting to cause the certificate or return of such election to be made to such clerk, and at or before such time as is herein before directed, shall forfeit and pay one hundred pounds; and neglecting to deliver the poll books to the clerk of the court, to whom, and before the expiration of the time within which they are herein before directed to be delivered, or refusing to suffer any candidate or elector, at his own expence, to take a copy of the poll books, shall forfeit and pay ;15 which penalties may be recovered with costs in actions of debt, by any person who will sue for the same; one half to his own use and the other half to the use of the commonwealth. A16 person hereafter to be elected to serve in General Assembly who shall directly or indirectly give or agree to give to any elector or pretended elector, money, meat, drink, or other reward, in order to be elected, or for having been elected, for such or any other county, city, or borough, shall be expelled and disabled to be reelected during the term of three years.
The privilege of members of the General Assembly shall continue during every session, and one day before and after for every twenty miles they must necessarily travel to and from home, and in the meantime process in which they are parties shall be suspended, without abatement or discontinuance: If any person taken in execution be delivered by privilege of either House of General Assembly, so soon as such privilege ceaseth, the plaintiff, his executors, or administrators may sue out a new execution against him.17
If a sufficient number of the members of General Assembly, or of either House thereof, to adjourn from day to day, shall not meet at any time when they ought, the Governor, by proclamation with advice of the Council, may prorogue the General Assembly, or adjourn the deficient House, from day to day, until a sufficient number shall convene, and their acts and proceedings afterwards shall be as valid as if there had been no such interruption. But a Delegate or Senator shall loose all the wages he would otherwise have been entitled to, if he shall depart from the General Assembly before it be adjourned without license from the Speaker and other members of the House whereof he is a member first entered on the journal; yet any member of either House taken so sick during his attendance in General Assembly, or in his journey thither, as that he shall be unable to come to or sit in the House, shall receive wages for every day of the session he shall be so disabled, in the same manner as if he had sat in the House. If on the day appointed for the meeting of any General Assembly, or at any other time during the session, a sufficient number of the members thereof to proceed to business do not attend for that purpose, every absent Delegate or Senator shall, besides losing his wages during absence, forfeit and pay to the use of the commonwealth ;18 such forfeiture to be recovered by prosecution to be instituted in the General Court by order of such House; and on the trial of such prosecution no excuse for non attendance, other than those before mentioned, shall be admitted by the jury; and if it be alledged that the defendant did attend such house, on any of the days during which they could not do business for want of members, the proof of such attendance shall rest on him. The General Assembly may during a session, or at the end thereof, adjourn to any other place than that where they shall then be sitting. Every act of the General Assembly hereafter to be made, shall commence and be in force from the passing thereof, unless in the act itself another day for the commencement thereof be particularly mentioned; and in the former case the day of passing thereof shall be noted next after the title.19
Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends , p. 1–4. MS (ViU); clerk’s copy. Probably drawn by TJ or Wythe, since there is in DLC: TJ Papers, 236: 42327–8, a four-page MS in the hand of George Mason endorsed: “Remarks upon the Mode of regulating the Elections of Members of the General Assembly.” This MS is referred to below as Mason MS. Text of Act as adopted is in Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends xii, 120–9.
Bill was presented by Madison 31 Oct. 1785. The House passed it, apparently without amendment, but the Senate offered numerous amendments, some of which the House accepted and others rejected (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1785, 1828 edn., p. 12–15, 40, 47, 94, 97, 98, 100, 133). The principal differences between the Bill and the Act as adopted are indicated below.
1. Act as adopted provided that elections should be held during court days in April and meeting of Assembly be convened third Monday in October. On this point Mason MS has the following:
“The Month of March will be preferable to April for the following reasons. The Elections in April preventing the Assembly’s sitting in that month, tho’ the Emergency be ever so great, may produce much Inconvenience, as the active Season of the Year, and the opening the Campaign in time of War, is then approaching; this might be provided against, by holding the Elections, thro’ out the Country, on the same Day; but there are some considerable objections to such a Regulation, particularly the Danger of Insurrection of the Slaves, or disaffected. By law, the Assembly is always to meet on the first Monday in May, and the Elections, being the respective County Court Days in April, many of them fall so late in the month, as to prevent the Members of distant Counties attending early in the Session, to the great Delay of public Business.
“The People, being wearied with too frequent Elections, seldom meet to chuse the Commissioners of the Tax, who are therefore generally appointed by the County Courts; this, growing into precedent, may encroach upon one of the fundamental, and most important principles of the Constitution. If the Election of Commissioners of the Tax, and all other annual Elections were fixed to the time of chusing the Members of the Assembly, it wou’d more deeply engage the public Attention, occasion a fuller meeting, and the People wou’d be in the habitual Exercise of one of their most essential Rights and privileges; but if the Election of the Commissioners of the Tax was changed from March to April, it wou’d delay and impede the Execution of the Assessment, in many Particulars.”
2. The Act as adopted reads: “(other than free negroes or mulattoes).”
3. The Act as adopted reads: “except as before excepted.”
4. The Act as adopted omits the passage: “not being an Alderman … otherwise disqualified.”
5. The Act as adopted reads: “one fourth of his portion.”
This severe legislative penalty for refusal to vote can, in all probability, be traced to George Mason. For on this point the Mason MS has the following: “The Members of the late Assemblys have been the nominal, rather than the real Representatives of the people; many of them have been the Choice of a Handful, a Neighbourhood, or a Junto. An ignorant or obscure Man may have considerable Influence within a narrow Circle; but it will seldom extend thro’ a County; unfortunately Elections are now so little attended to, that a factious, bawling Fellow, who will make a noise four or five miles around him, and prevail upon his party to attend, may carry an Election against a Man of ten times his weight and Influence in the County, and men of modesty and merit are discouraged from offering themselves; this is the true Cause why we have seen our late Assemblies filled with men so unequal to the Office: a Law therefore which wou’d bring the Body of the People to attend, and vote at their County Elections, wou’d be of the greatest Importance to the State. It is presumed some such Regulations as the following may effect it.
“Let two or three Justices of the Peace, taking an Oath of Impartiality, superintend the Election, and be empowered to judge of the Qualifications of the Voters, upon the Spot; for as we have now annual Elections, there will seldom or ever be a disputed Election brought before the Assembly. [Ed. note: see the elaborate provisions in this Bill, below, concerning disputed elections and the manner of resolving such disputesprovisions which were struck out when the Bill was enacted into law.]
“Let all the Freeholders, resident within the County, be obliged, under a certain penalty, to attend and vote at their County Election, unless they send such a reasonable Excuse, in writing, for their Absence, as shall be approved by the Judges of the Election; let such Excuses as the Judges have approved be certified, and filed, together with a Copy of the Poll, in the Clerk’s Office of the County; or let the names of the Absentees, whose Excuses have been admitted, be added at the Foot of the Poll, and certified by the said Judges.
“Let the Sherif, if the said Judges shall see just Cause, adjourn the Election, from Day to Day; and where it shall appear upon closing the Poll, that <less than two thirds> a Majority of the Freeholders, resident within the County, have not voted, let such County remain unrepresented until the next annual Election, and the Sherif make his Return accordingly to the General Assembly.”
In Order to ascertain the Number of Freeholders resident within the County, and carry the Law into due Execution
“Let the Assessors annually, with their Assessment, return to the Commissioners of the Tax, an exact List of the Names of all the Freeholders resident within their respective Hundreds and from these returns let the Commissioners make out an alphabetical List of all the Freeholders resident within their County, to be return’d certified under their Hands, to the Clerk’s Office; a Copy of which List, with a Copy of the last poll, and a List of the Names of the Absentees whose Excuses have been admitted, to be returned, by the Clerk of the County, to the next Court after every General Election, such Court imediatly to appoint two of their Members to examine these Returns, and from them to make out a List of the Delinquents, to be delivered to the Attorney for the Commonwealth, who shou’d be directed by the Court to commence Suits against them. As the County’s Representation will be suspended from the Fault of these Delinquents, their Fines shou’d be applied to the use of the County, rather than to the use of the Commonwealth.
“That the two Houses of Assembly may have authentic Information of, and proper Command of their own Members, the Sherif, besides the Certificate he delivers to each Member, shou’d make regular Returns to the Assembly.”
6. The Act as adopted omits the following: “unless being required … duty elsewhere.”
7. The Act as adopted provides that the sheriff or other officer taking the poll shall deliver a copy of the poll within ten days to the clerk of the county, who is required to deliver it to the next grand jury, this jury to be charged by the presiding magistrate to make a presentment of all qualified persons who refused to vote; the sheriff of the county was also required by the Act to deliver to the grand jury for their information a list of landholders in the county, under penalty of £50 for failure to do so (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends xii, 122).
8. The Act as adopted reads: “which shall be within twenty days after the last day of election, at such place as shall be appointed by the returning officer of the first county in which such election shall be, who is hereby commanded forthwith to give notice to the returning officers.”
9. The Act as adopted reads: “for four days (Sundays excluded).”
10. The elaborate procedure provided for in the passage enclosed within square brackets (supplied) was struck out and, instead, the Act as adopted provided that the committee of privileges and elections should take cognizance of disputed elections before proceeding to any other business and the House (or Senate) would merely confirm or disagree with the findings of the committee.
11. Square brackets are in Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends here and elsewhere throughout the Bill, except for the square brackets supplied at the place indicated in note 10.
12. The blank space after the word “act” also appears in the Act as adopted.
13. The substance of this sentence is incorporated in the Act as adopted at the point indicated by note 7.
14. The preceding three words are omitted in the Act as adopted and the following inserted after the words “place of election”: “by advertisement to be affixed at four of the most convenient places in the county.”
15. The Act as adopted reads: “fifty pounds.”
16. The Act as adopted reads: “Any.”
17. The Act as adopted reads: “ceaseth, he shall return himself a prisoner in execution or be liable to an escape.”
18. The Act as adopted reads: “ten pounds.”
19. The Act as adopted has an additional clause putting it in force 1 Jan. 1787. The general rule here enacted for putting an Act into effect prevailed over the alternative proposed by George Mason (see Document iv, 1, below).