The New era. [volume] (Martinsburg, W. Va.) 1865-1871, 1866-03-01
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tested election case in this Circuit
Those who have not forgotten the incl
dents of the last election, and the irregu-
larlties, Interferences, intimidations and
+ frauds. charged to have been committed
VIII be surprised to learn that no tcsti-
h0ny was taken before the Court sat, in
me shape of Dispositions, and the law
does not authorize the Court to hear
verbal testimony to prove either that
any voter was not allowed TO vote with
out taking the Test Oath or that. in
many cases no list of the Rejected
Votes, as required by law, was kept, or,
as charged. that the ballots east for Judge
Kennedy, at one precinct, were publicly
burnt, or, that there was military in
timidation at the election, or, that the
! Supervisors threw out the returns from
the Charlestown precinct, in jefferson,
and at six precincts in Hardy, which
would have given Judge Kennedy a
majority in the District.
Many interesting questions, thus, as
the Court said, which might have been
raised-especially as to the constitutions
atty fthe Test Oath-werenot consider
ed by it.
The course taken was not the result Of
oversight in Judge Kennedy. Looking
to the uncertainty Of such contest.
owing to the state Of things in West
observation-disclosures Judge X. was conf
dent that the law and the right were
with him, if he proved the charges al
legged in his notice of contest-and the
law providing that, even if he succeeded,
he would not recover the costs he should
eXpend III taking testimony in all the
counties, which would have been very
heavy, if thoroughly done, while if he
were defeated he would be obliged to
pay Judge Halls costs-he concluded to
rely upon two or three points Of law and
differences to be drawn from the notice
and counter-notice.
Judge Hall selected Mr.. Black burn.
of this place Judge Kennedy selected
Major Andrews; and the Governor APP
pointed General Bunker This is the
mode required by law, and the three
constituted the Court to decide the case.
do not propose to do more, for the
information of your readers, than to
state some Of the points made and pass
ed upon before the final decision in favor
of Judge Hall, from which Major An
drews dissented.
LIST. The contestant claimed, that, as
the law authorizes the ease to be heard,
in part upon the Returns, and as he,
thus. had a right to have the original
Inspectors Returns. for the consideration
of the Court, which the Board Of Super
visors had rejected, as expressly author
lied to be sent for in other eases of con-
tested elections-th either the Gov
ernor should furnish these returns, as
empowered by law, or the Court should
send for them, as the contestant could
not otherwise get them. Copies, it was
| shown, would not answer all purposes
and the Court. as a power inherent in its
Constitution, had a right to have before
it, upon the contestants motion, the
returns. This motion was resisted, upon
the ground that documentary evidence
could not now be laid before the Court
or that copies could have been pro-
cured before the Court sat. \ majority
of the Court declined to send for the re-
turns, but said the Governor had the
power to do so. Upon being applied to
the Governor said it was not his duty.
Copies, in the mean time, were sent for.
They were refused by the Recorder of
jefferson although the law requires
him to furnish copies of all papers in
his Office; and it was ascertaned that
the returns of Hardy could not be found.
Thus no case could be made on the re-
jected returns.
Cd. The contestants counsel then con-
tended that although not q point made
by the notice, yet it appeared that Judge
Hall was not q resident of the Circuit,
from his own admission, at the time Of
his election or commissioa-and as there
was no evidence that he had moved into
the Circuit when he quoiWed, he could