Updated November 25, 2022
Background
Thomas Quincy Gilliam of New Kent, the son of John L. Gilliam, removes to Isle of Wight after filing for bankruptcy in 1868. It appears he settles on a portion of the estate of Elias Saunders, which his wife Martha P. Saunders inherits as the daughter of Elias.
Overview
Thomas contests the election of 1883 for House of Delegate from the Isle of Wight after losing the seat to John W. Lawson by one vote!
Virginia General Assembly. House of Delegates, Commonwealth of Virginia, 1883, pages 29-31
A report of the committee of privileges and elections was presented as follows:
The committee of privileges and elections, to whom was referred the following resolution, viz:
“Resolved, That the committee of privileges and elections be instructed to enquire and report as early as possible whether John W. Lawson is entitled prima facie to a seat in this body as delegate-elect from the county of Isle of Wight”
Beg leave to report that by resolution adopted by the committee they requested the secretary of the commonwealth to furnish certified copies of all papers in his office bearing on the election held the first Tuesday after the first Monday in November, 1883, for member of the House of Delegates from the county of Isle of Wight. The secretary of the commonwealth promptly furnished certified copies of the papers indicated by the resolution above referred to. All of which papers were carefully examined, read and considered by the committee.
The committee found that there are two returns relating to the election, and purporting to show the vote of said county at said election. One of these returns not being attested by the clerk of Isle of Wight, and showing on its face that the persons pretending to act as commissioners delayed their action until the 13th of November instead of the 8th of November as the law required, and failing to show that any action was had on the second day after the election by them as commissioners, was illegal, and was declared so to be by the committee unanimously. The return or paper alluded to, is herewith filed, marked "Exhibit A."
The other return being duly attested and certified by the clerk of Isle of Wight, with the seal of the court affixed, was carefully considered by the committee. Its caption reads as follows: "Abstract of votes cast in the county of Isle of Wight, Virginia, for members of the Senate and House of Delegates at an election held the first Tuesday after the first Monday in November, A. D. one thousand eight hundred and eighty-three." The said abstract is certified to in due form of law by two of the commissioners of said election, who state in their certificate that they constituted a majority of the commissioners who acted, thereby obviously showing that there were three commissioners who acted. The said commissioners further state in their certificate that “John W. Lawson received the highest number of votes for member of the House of Delegates.”
The only question that can be raised as to this paper is, whether the signatures of all three commissioners who acted, are necessary to make it legal. The election laws of the state of Virginia (see Code of Virginia, 1873, page 161, section 24) provides that " It shall be the duty of the county and corporation courts in the order appointing judges of elections for their respective counties and corporations, to designate five of the persons so appointed, to act as commissioners, three of which said commissioners, when so designated, shall constitute a board (of which the clerk of the court so appointing, shall ex-officio be clerk), whose duty it shall be" to determine the persons who received the greatest number of votes and to reduce their determination to writing, sign the same, &c. It will be seen from this section that whilst it requires five periods to be designated as commissioners, that three of them shall constitute a board to perform the duties set forth in the section referred to.
It will be further seen, by reference to another provision of the Code, to be found on page 194, rule third, for construction of statutes, “That words purporting to give authority to three or more public officers or other persons, shall be construed as giving such authority to a majority of such officers or other persons, unless it shall be otherwise expressly declared in the law giving the authority.”
Taking this rule of construction, and applying it to section 24, page 161, above recited, it is obvious that the two commissioners of election who certified to the abstract aforesaid, unquestionably constituted “a majority” of the number required to constitute the board, had legal authority to act in the matter and give the said certificate, it not being “otherwise expressly declared in the law giving authority” to three commissioners to perform the duties specified in section 24, page 191, of the Code aforesaid.
The said abstract was duly returned to the office of the secretary of the commonwealth by the clerk of the county court of Isle of Wight and filed in said office, as appears by certificate of the secretary of the commonwealth annexed to the certified copy of said abstract, which is herewith filed, marked “Exhibit B.” Thus all the requirements of law necessary to make the return legal were complied with.
Your committee, therefore, unanimously recommend the adoption of the following resolution, via:
Resolved, That John W. Lawson is entitled prima facie to a seat in this body as the delegate elect from the county of Isle of Wight.
A. BROWNE EVANS, Chairman.
Exhibit A.
Virginia—County of Isle of Wight—to wit:
I, W. S. Holland, a notary public in and for the county of Isle of Wight, do certify that B. C. Roberts and George A. Gwaltney, being duly sworn according to law, made on their oath the following statement:
That we are two of the commissioners of election for Isle of Wight county: that on the 8th day of November, 1883, we appeared at the clerk's office of said county of Isle of Wight, and in company with George F. Hall and Calvin Baker, we began to canvass the returns of the election held on the 6th day of November, 1883; that a motion was made by counsel for John W. Lawson, a candidate for the House of Delegates, that said George A. Gwaltney be excluded from the board of commissioners, on the ground that he, the said Gwaltney, held an office under the United States government, to wit, gauger of distilled liquors, and said motion prevailed by not allowing Gwaltney to vote. That when the books for Carrollton precinct in said county was reached, a motion was made to exclude the vote at said precinct from the count, on the ground that the ballots were not "sealed up," but were carefully wrapped in a piece of paper, and the returns were correctly and properly made out and sworn to. That GILLIAM, another candidate, appeared in person and asked that the judges and clerks at said precinct be summoned to correct any irregularity, and to identify said ballots; if needs be, to have time to employ counsel; and said Hall and Baker refused this request made by GILLIAM, and decided to exclude the returns at said precinct as aforesaid. That thereupon we solemnly protested against any further action by said Hall and Baker, and left the house. That we then and there adjourned to meet on the 13th day of November, 1883, on which day, we, the undersigned, in company with James W. Stallings, another commissioner of elections, met at said clerk's office, and, upon thoroughly canvassing said returns, including the return from Carrollton precinct, which were correctly and fairly made out, and showed that at said precinct said GILLIAM received for the House of Delegates 155 votes, and said Lawson 119 votes for the House of Delegates; and after hearing testimony we, in company with said Stallings, made an abstract of the votes cast at said election. That N. P. Young, clerk of the court for this county, was present and refused to act as our clerk; whereupon W. S. Holland was chosen as our clerk. And we state that said George F. Hall, one of the aforesaid commissioners, was at the time, has been for years, and still is, a postmaster in this county, duly appointed and bonded under the United States government, but no objection to said Hall was allowed. Witness our hands, this the 13th day of November, 1883.
BENJAMIN C. ROBERTS, GEORGE A. GWALTNEY, A. M. ELEY.
Virginia—County of Isle of Wight—to wit:
I, W. S. Holland, a notary public in and for the said county of Isle of Wight, and state of Virginia, do certify that A. M. Eley, whose name is signed to the writing above, along with B. C. Roberts and George A. Gwaltney, personally appeared before me in my said county, and made solemn affirmation that the statement made by said Roberts and Gwaltney are true; that he, A. M. Eley, is an eye witness to the transactions and doings above narrated.
Given under my hand, this 14th day of November, 1883.
W. S. HOLLAND, N. P.
I, W. McRae, acting secretary of the commonwealth, hereby certify that the within is a true copy of the abstracts on file in the office of secretary of the commonwealth.
W. McRAE, Acting Secretary of the Commonwealth.
December 7, 1883.
OFFICE OF SECRETARY OF THE COMMONWEALTH,
Richmond, Va., December 6, 1883.
I, W. C. Elam, secretary of the commonwealth, and member of the board of canvassers, hereby certify that the annexed is an exact copy of the abstract of votes of the county of Isle of Wight, returned to my office by the clerk of the county court of Isle of Wight, and now on file in my office.
W. C. ELAM, Secretary of the Commonwealth.
Abstract of votes cast in the county of Isle of Wight, Virginia, for members of the Senate and House of Delegates, at an election held the first Tuesday after the first Monday in November, A. D. one thousand eight hundred and eighty-three, viz:
For Senate, Charles B. Crumpler received eleven hundred and ninety-three votes (1,193).
For Senate, James F. Bryant received eleven hundred and ninety votes (1,190).
For House of Delegates, John W. Lawson received eleven hundred and ninety votes (1,190).
For House of Delegates, Thomas Q. GILLIAM received eleven hundred and eighty-nine votes (1,189).
CLERK'S OFFICE OF ISLE OF WIGHT COUNTY,
November 8, 1883.
We the undersigned, being a majority of the commissioners of the election held in the said county of Isle of Wight the first Tuesday after the first Monday in November, 1883, who acted, certify that the above is a true and correct abstract from the returns of said election, and do therefore determine and declare that Charles B. Crumpler received the highest number of votes cast at said election for member of the Senate, and that John W. Lawson received the highest number of votes cast fur member of the House of Delegates. Given under our hands the day above written.
GEORGE F. HALL. CALVIN BAKER,
Commissioners.
Attest
N. P. YOUNG, Clerk.
CLERK'S OFFICE OF ISLE OF WIGHT COUNTY,
November 8, 1883.
1, N. P. Young, clerk of the county court of said county of Isle of Wight, hereby certify that the foregoing is a true copy of the abstract of votes given at the election above named, as certified, signed, and attested according to law, and deposited in my office.
In testimony whereof, I have hereto set my hand and affixed the seal of said court.
[Proper seal.] N. P. YOUNG,
Clerk of Isle of Wight county court.
Mr. Banks offered the following as a substitute for the report of the committee:
Whereas the committee of privileges and elections has reported that J. W. Lawson is entitled prima facie to a seat on this floor as a member of this House from the county of Isle of Wight; and whereas there is in fact no prima facie claim to said seat, one of the contending parties, the said J. W. Lawson, the late Democratic candidate, holding a certificate of election signed by only two commissioners, the other party, to-wit: T. Q. GILLIAM, the Coalition candidate, holding a certificate of election signed by three commissioners, without the seal of the court attached thereto, (the clerk of the county court having refused the use of the said seal;) and whereas under such circumstances it would be manifestly improper to seat either of said claimants without being informed as to the merits of the controversy; and whereas it is the sense of this House that the utmost care and diligence should be exercised in reaching a proper conclusion as to who is the legal and proper representative, and that every facility should be afforded the parties respectively to present and urge their rival claims to such seat; therefore be it
Resolved, That the case be referred back to the committee of privileges and elections, with instructions to send for persons and papers, and to enquire fully into the merits of the contest, to the end that this body may know who is really entitled to said seat— Which was rejected—yeas 27; nays 66.
Pages 380-382
Mr. Bland moved to reconsider the vote by which the report was agreed to; which motion was rejected. A report, as follows:
Your committee respectfully report that the record in the case of Thomas G. GILLIAM vs. John W. Lawson discloses that the commissioners of election met at the clerk's office, Isle of Wight county, on the 8th day of November, 1883, canvassed the returns, and ascertained the result in favor of John W. Lawson. The commissioners declined to consider the poll from Carrollton precinct because it had not been sealed and directed to the clerk, as the law requires. It appears that this poll-book and the ballots were, after the election closed, wrapped up in brown paper, tied with a string, and put in the hands of Charles H. Bunkley, son-in-law of Thomas G. GILLIAM, for transmission to the clerk's office; that they remained in his possession all night at his own house—not having been directed, even; and that when they were delivered to the clerk they were in said condition.
Your committee are of the opinion that such facts were sufficient to excite suspicion; and as the opportunity far tampering had been offered, and if improved was beyond correction, the commissioners acted properly in not examining, much less receiving the said poll. The irregularity in this case was beyond repair by the commissioners, as it would scarcely have waited to have locked the door after the horse had gone. Sealing a package two days after it had been in one's hands would not have protected it against said person during said time, and as the defect was without remedy it should have been regarded as fatal. It does not appear that these commissioners were advised of the effect of the rejection of this poll in question, there being no proof in the record whether it was Democratic or Coalition. It is shown, however, that the Coalition commissioner participated in the canvass until it was decided not to examine or receive this poll—the count, not including it, giving John W. Lawson a majority of one. These commissioners received the eight polls properly returned without question as to their results; and that their action as to the ninth was partisan, is a charge to which they might well be indifferent, as they forbore even to inspect it, and were without information—official, at least—of the vote at that precinct. The sanctity of the seal had not been put upon it—not even the slight protection of an address—and it was at the mercy of a party deeply interested for the contestant—his father-in-law. A poll-book is a solemn instrument—the record of the exercise of the highest right of the people, and should be so guarded as to preclude all doubt as to its genuineness and its correctness.
Your committee find themselves bound by this act of the commissioners for the following reasons:
First. There is nothing in the record to satisfy them what the vote at Carrollton precinct was; there is not even a statement of the vote, beyond that of one witness, who said that he could not give the number that either candidate got, but Mr. GILLIAM's majority was —
Second. Even if there were parol [sic] evidence, it would not be satisfactory, because it would be secondary in its character, and not entitled to consideration, as the best proof—the poll-books, or a certified copy of them—could have been produced.
Third. The poll-books, if produced, would have come so burdened with distrust—so infected by the circumstances surrounding them—that they could not be accepted as a verity. The suspicion attached to these books, justly, in the first place, is intensified by the conduct of the contestant in the progress of his depositions. The contestee repeatedly—as often as three times—demanded their production as the only proof legitimate of their contents, and yet they were never presented or offered. Three calls, but no answer. Do not these facts create more than an impression—almost a conviction, that these books wore upon their face marks that condemned them? If genuine, why were they withheld? That they were suppressed is suggestive that they were false.
It is true that on the last page of the printed record in this case there is a certificate of the county clerk of the votes cast at the eight voting precincts in said county, appended to which is the further certificate of the vote of the Carrollton precinct, as shown by a poll purporting to be the proper and correct poll. Your committee have above announced that they would have looked upon the books themselves if produced, as so tainted as to be far from conclusive, and they could not, therefore, give greater weight to a clerk's certificate of their purport, even if the said certificate were regularly and legally before them as part of the record. Your committee find that they cannot admit this certificate, as it is not produced before them by any reference of any person whatsoever; it is no part of the contestant's evidence, it never having been allowed by him, his counsel, or any witness for him. Your committee, therefore, consider themselves utterly without evidence as to the vote cast at Carrollton precinct, and they cannot, therefore, even if they were disposed to waive their objections as above recited to the return, consider the said precinct in ascertaining the result in said county.
Your committee deem it proper to inform the House that they rejected all the testimony of contestee James M. Lawson, because the taking of it was not commenced within the time prescribed by law; though it appears that the notice given him by contestant was so short—only four days, and not reasonable within the meaning of the law—as to render it impracticable almost for him to bring himself within the limited period fixed by the statute. The notice of the contest was so delayed as to justify the impression that none would be made; it was not served on contestant until the 15th day of November, 1883, and the 16th day was the last on which it could have been done. Whether this conduct was designed to disarm, or whether it proceeded from the inability of the contestant to makeup his mind, need not be conjectured, as the fact remains, it must have had the effect of preventing preparation by the contestee. Again the depositions of the contestant were not commenced until the 21st day of November, 1883, and thus only the short space of five days were allowed the contestee to confront the witnesses of the contestant and collect his own evidence—an accomplishment, if not impossible, certainly so difficult as to be embarrassing. The postponing of the notice of contest, the short notice of the taking of the depositions and the brief period for the taking, forced by the contestant's delay, were so much to the interest of the contestant and to the disadvantage of the contestee, that it cannot be regarded unjust to treat it as deliberately designed to prevent the contestant from making such a defense as more favorable circumstances would have allowed. It is certain the contestee did not have a fair chance; and the record proves he had no chance at all.
Your committee submit that the contestant does not appear with clean hands even in the manner of making his contest, and the contestee is as one accused without having had the privilege of being heard in his behalf.
Your committee, therefore, conclude that the contestant, Thomas J. GILLIAM, has not made good his claim to a seat in the House of Delegates from the county of Isle of Wight, and that the prima facie right of John W. Lawson, heretofore recognized, should be declared absolute—on the adoption of the following resolution, to-wit:
Be it resolved, That John W. Lawson is entitled to retain his seat on this floor as member from the county of Isle of Wight.
Respectfully submitted,
A. B. EVANS, Chairman— Was agreed to—ayes 51; nays 14.
On motion of Mr. Green of Stafford, the vote was recorded as follows:
Yeas—Messrs. Speaker, R. J. Anderson, William A. Anderson, Bailey, Barton, Bolen, Burks, Camper, Chapman, Darst, Dunn, Dunlop, Echols, Ellis, A. Browne Evans, Thomas J. Evans, Fitzpatrick, Gibson, Grattan, Graves, Jones, Kelly, Leftwich, Leigh, Loving, Mays, David Meade, Moorefield, Moon, Noblin, Opie, Overby, Paxton, Peters, Porter, Powell, Pretlow, Robertson, Ryan, Saunders, Seay, Smith, Stribling, Tabb, Trigg, John W. Vaughan, R. F. Vaughan, Ward, Wescott, Wilkins, and Whitehead—51.
Nats—Messrs. Bland, Brockwell, Dodson, Garnett, Gose, Duff Green, Griggs, McCandlish, Mauck, Charles C. Meade, S. P. Mustard, Richardson, Ross, and Wheeler—14.
Sources
- Virginia General Assembly. House of Delegates, Commonwealth of Virginia, 1883, pages 29-31