H. OF R.]

Organization of the House.—Election of Speaker.

its first duty was to ascertain who were its own members. This was a representative Government—and the first question which demanded attention was, whether individuals, claiming to be representatives of the people, were actually their representatives.

Mr. FOSTER having, by permission of Mr. ALLAN, taken the floor, proposed the appointment of a Chairman, to give order to the proceedings.

A member inquired whether a quorum of the House had answered to their names?

Mr. FOSTER further urged the expediency of choosing a Chairman. The House was competent to do this, whether a quorum had answered or not; just as a number of gentlemen, met for any other business, were accustom ed to do.

Mr. ELLSWORTH thought it would be better to let the Clerk proceed as usual. Till the roll was gone through with, they could not tell who was entitled to vote for a

Chairman.

[Dec. 2, 1803

and that ANDREW STEVENSON, of Virginia, having ceived a majority of all the votes given in, was duly elec ed Speaker of the House.

Whereupon, Mr. STEVENSON was conducted to e Chair by Mr. WILLIAMS, of North Carolina, from which he returned his thanks, in the following address:

Mr. FOSTER said the Clerk did not act as Chairman; "Gentlemen: This is the fourth time that you have he only read a list he had made out, on what ground, or been pleased to call me to this high office. For this r by what authority, Mr. F. did not know; surely his pla- and distinguished mark of your confidence and faver, 1 cing the name of a particular person on that list did not pray you to accept my warm and grateful acknowled make him a member of the House of Representatives. ments; and whilst it will be deeply valued and cherished Mr. SPEIGHT thought it would be much better to by me as the best reward for any past service that I my postpone this matter until the roll had been gone through, have rendered, it shall inspire me with a zeal so to car the members qualified, and the Speaker chosen. A de- duct myself, as to justify in some measure the choice of bate previous to that, would only produce confusion. my friends, and merit the continued approbation of my Mr. ALLAN replied, that if it were the custom of the country. Would to God that I was better qualified t House to qualify the members before the Speaker was fulfil the arduous duties of this Chair, in a manner suit elected, and the gentlemen from Kentucky would acqui-ble to its dignity and importance, my own wishes sid esce, he should be more willing to comply with this sug-honor, and the just expectations of the House. There gestion; but the usual course had been to elect a Speaker are few stations, gentlemen, under our Government, eh first, and qualify the members afterwards. It was known er in relation to their elevation, or the nature and extent to every man, of the least observation or experience, that of their duties, more laborious or responsible than that the election of the Speaker gave a character to the House of Speaker of this House; and there probably has bee and a tone to all its proceedings; and he asked whether no period in the past history of our country, when the his State was not entitled to have her full and just repre- duties of the Chair were more important, or calculated t sentation upon that floor, when an act so important was impose higher responsibilities, than at the present me about to be done? Surely she had a right to demand the ment; enhanced as they necessarily must be, by the en decision of a question of such consequence, a question larged number of the House; by the increased mass of t which went directly to that vital interest of freemen, the ordinary business; and by those interesting and important right of suffrage. He admitted that the question was of subjects, which will, no doubt, be presented for co a novel and somewhat embarrassing character, and requi-sideration, and probably give rise to deep political exred to be treated with consideration; but there was abun-citement.

dant time for its examination. How could the time of the For the last six years, my experience in this Chair has House be occupied more profitably than in putting a ques-taught me, not only to know and feel its responsibilities tion of this magnitude to rest? There was no necessity and trials, but to know likewise how difficult and indeed to hurry a decision. Believing it to be conceded that he impossible it is, in an office like this, whose duties must had a right to the floor, he should now proceed, respect- often be discharged amidst the warmth of party feeling, fully and very briefly, to state the two fatal objections for any man, whoever he may be, to free himself from which existed to the legality of the paper which had been read at the Clerk's table. They were on the face of the paper itself. He should not go behind it.

Here Mr. BOON requested Mr. ALLAN to yield the floor to him for a moment; but Mr. A. refused, and was about proceeding to explain his objections to the sheriff's certificate, when [having been spoken to aside by Mr. CHIL TON] he said that he understood a proposition would be made by one of the gentlemen claiming the seat, and with a view to afford an opportunity for such a movement, he would readily take his seat.

times like these, when the acts of public men are not censure or give unqualified satisfaction; and especially in passed lightly over, nor any very charitable judgment pronounced upon their motives.

Under these circumstances, gentlemen, sincerely dis trustful of my abilities, both in their character and ex tent, I come again, at your bidding, to this high office. All that I dare hope or promise, will be, to proceed in the path marked out, and in the spirit of the principles which I laid down for my government when I first came to this Chair. It shall be my constant and ardent de Mr. LETCHER then proposed to Mr. MOORE, that sire to discharge my duty with all the ability and ad they should both withdraw until after the election for Speaker had taken place.

Mr. MOORE was understood as acquiescing in this proposal; whereupon,

The Clerk proceeded to call the residue of the roll; when it appeared that 229 members were present.

Those Representatives absent were Messrs. BURNs, CHOATE, PEARCE, MUHLENBERG, WISE, SINGLETON, BULLARD, E. D. WHITE, and PLUMMER; and, of Delegates,

Mr. WHITE.

dress in my power; with the temper and moderation due to the station and the House; and at least with a zeal and fidelity of intention, which shall bear me up under every embarrassment and difficulty, and entitle me to the approbation of the just and liberal portion of my country. But all my efforts must prove unavailing without that liberal and cordial co-operation which the House have heretofore so kindly extended to the Chair How much will depend upon yourselves gentlemen, indi vidually, and collectively, in preserving the permanent

EC. 3, 1833.]

Election of Clerk, &c.

[H. OF R.

On motion of Mr. MASON, of Virginia, the House then proceeded to the election of a Sergeant-at-arms. Mr. MASON nominated Thomas Beverly Randolph, (Sergeant-at-arms to the last Congress.)

ws and rules of the House, and giving dignity and char-that the House was organized, and ready to proceed to ter to its proceedings, it is not necessary that I should business. tempt to impress on you; nor is it needful, I am sure, at I should admonish you of the magnitude of your trust, the manner in which it ought to be discharged. But is I will take occasion to say, that if it be true that this ouse is justly to be regarded as the great bulwark of Mr. SPEIGHT nominated William D. Robinson, of perty and order; if here, here in this exalted refuge, the Virginia. eople are to look for the security and safety of their The House proceeded to ballot, and Messrs. MASON, ee institutions, and to repose with unlimited confidence | WILLIAMs, and WardWELL were appointed to count the nd affection, how important, how deeply important is it, votes. at we prove ourselves worthy of the trust, and act as Mr. MASON then reported that 220 votes had been ecomes the representatives of a free and enlightened given; that 111 were necessary for a choice; that ation. Thomas Beverly Randolph had received 158 votes. William Robinson Scattering Blanks

Yes, gentlemen, animated by a virtuous and patriotic eal, let all our proceedings, I pray you, be marked with orbearance, moderation, and dignity; let us diligently nd steadfastly pursue those measures, and those only, hich are best calculated to advance the happiness and Jory of our beloved country, and render that Union hich our fathers established for the protection of our berties, imperishable and immortal!””

The SPEAKER then took the required oath to support e constitution of the United States, which was admintered by Mr. WILLIAMS; after which the same oath was dministered by the SPEAKER to the members respectively; xcep■ that when Mr. Moonɛ was called, it appeared that e and Mr. LETCHER had concurred in allowing the oranization of the House to be completed before the quesion between them was again raised, and neither of them

Blanks

112

114
2

54

4

4:

Consequently that THOMAS BEVERLY RANDOLPH, having a majority of votes, was duly elected Sergeant-at-arms.

Mr. CLAY offered a resolution, that OVERTON CARR be appointed Doorkeeper to the House, and WILLIAM HUNTER assistant Doorkeeper; which was agreed to nem. con.

The_Sergeant-at-arms and Doorkeepers were then sworn into office.

Mr. SUTHERLAND moved that the rules and orders adopted by the last Congress should stand as the rules and orders of the present Congress.

Mr. HUBBARD wished the resolution modified, so as to except those rules which designate the number of members of which the Standing Committees are to be composed; as it was his opinion that, in consequence of the enlarged number of the House, the committees should consist of nine members, instead of seven, as heretofore.

The rules to be excepted (the 55th and the 76th,) were read.

Mr. POLK wished the resolution modified so as to provide that the members should sit in the House uncovered, unless under special leave of the Speaker.

After some further conversation, the resolution was for the present withdrawn, to make way for the following proceedings:

Mr. WARD, from the joint committee appointed to wait upon the President, reported that the committee had performed the duty assigned them, and that the President would send a communication to both Houses this day, at

1 o'clock.

A message was then received from the President of the United States, by A. J. Donelson, Esq., his private Secretary, and read at the Clerk's table. [See Appendix.] Mr. HUBBARD offered a resolution, proposing that

No one having a majority of votes, a third balloting was all the former rules and orders of the House he adopted, had, which resulted as follows:

For Mr. Clarke

Mr. Franklin

Blanks

with the exception of the 55th and 76th rules, for which he proposed substitutes, going in effect to increase the number of Standing Committees, by adding one on the

SO WALTER S. FRANKLIN, of Pennsylvania, was elected Militia; to increase the number of such as heretofore con

Clerk of the House.

TUESDAY, DECEMBER 3.

Walter S. Franklin, Esq., the Clerk elect of the House, appeared, and was sworn into office.

A message having yesterday been received from the Senate, stating that they were ready for business, and had passed a resolution providing for the appointment on their part of two members of a joint committee to wait upon the President,

Mr. WARD called up the resolution for consideration, and it was thereupon concurred in.

Messrs. WARD and SPEIGHT were appointed members of the joint committee on the part of the House.

Mr. ADAMS moved that the Clerk inform the Senate

veniently be put. He was opposed also to increasing the size of committees. Experience had taught him that the larger they were made, the less efficient they usually be came. It was often difficult to get a quorum of a committee together now. If the quorum should be enlarged, it would be harder still.

Mr. SUTHERLAND suggested that it would be better to adopt such rules as were not objected to, at once, and defer the consideration of the rest for the present.

After some further conversation, this was agreed to; and the old rules were adopted, with the exception of the 9th, 55th, and 76th, above referred to.

Mr. WARDWELL offered the usual resolution for supplying the members with papers; and

Mr. GRENNELL offered the usual motion respecting the appointment of Chaplains, (two, of different denominations,)—both of which were adopted.

WEDNESDAY, DECEMBER 4.

KENTUCKY ELECTION.

[DEC. 4, 1833.

No one can pretend that the meaning of this certificate has been changed, or that any new weight or additional authority has been communicated to this paper by the mere fact that it was taken out of the Secretary's office, and sent here by the Governor. So the right of the gentleman who claims under this certificate, if right he has, must be sought for upon the face of the paper itself, and not in any surmise that the Governor of Kentucky has furnished any other evidence. But, sir, this certificate does not contain the same evidence of the election of the gentleman who offers it as is contained in the certificates transmitted here by the Governor to establish the claim of the other members from Kentucky.

There is this essential difference between the certificate in question, and those held by all the other gentlemen from Kentucky. This certificate states that the vote of one of the five counties of the district was not taken into the calculation when the polls were compared, and it is only signed by three of the five sheriffs. Each of the certificates from the other districts in Kentucky are signed by all the sheriffs of the districts respectively. Now, Mr. ALLAN, of Kentucky, called the attention of sir, the question is, whether this certificate is prima facie the House to the question of the contested election for evidence of the election of Mr. Moore? There is upon the fifth congressional district of Kentucky, which was the face of the certificate two defects, either of which pending on Monday, and which was deferred, by their would render it a nullity. The fact is certified that the consent, until the organization of the House should have vote of Lincoln was not counted. The sheriffs, being been completed; that having now taken place, he proposed mere ministerial officers, had no power to reject a single to proceed to the consideration of the subject. [A gen- vote. The law made it their duty to count the votes of tleman from Alabama (Mr. McKINLEY) rose.] Mr. A. the whole district, for the puspose of ascertaining who could not on such an occasion waive his right to the floor. had a majority. Will any one contend that this law is Mr. McKINLEY. I rise to a question of order. There complied with by a certificate that states that a part only is no distinct question, that I am aware of, at present be- of the votes of the district were counted? The right to fore the House. elect a member to Congress is in a majority of the voters The SPEAKER said that both the gentlemen claiming of the whole district. A certificate showing for whom a the disputed seat, had agreed to defer the question of majority of a part of the district voted does not prove how right to it until the organization of the House should be a majority of the whole voted.

completed, and that having been done, he conceived the But again: to make a certificate valid, the law positivegentleman from Kentucky [Mr. ALLAN] was not in-ly requires that it should be signed by all of the sheriffs fringing upon the order of the House in calling their consideration to the subject.

of the district. This certificate has the signature of but three out of the five sheriffs; in this case, one sheriff canMr. ALLAN said the remarks which he was submitting not act for another-nor can a majority of them act for to the House, on Monday, had been suspended by the the whole. They do not represent the same interestvoluntary withdrawal of the two gentlemen claiming the each one acts for a separate community-each one had in seat. He would now briefly conclude what he had to say his possession the official evidence of the vote of his county in presenting this subject to the consideration of the each one was the organ by which this official evidence House. We have now before us the certificate under should be conveyed to the rest. The law, therefore, rewhich Mr. Moore claims a seat, and also the law of Ken- quired the action of the whole of the sheriffs of the district; tucky, from which the merits of this controversy may be in the first place, to ascertain who had a majority of the easily comprehended. votes of the whole district; and, in the second place, required the signatures of them all to authenticate the cer tificate of election.

It is likely, from the skirmish we had the other day, that there exists a mistake as to the character of this certificate. Mr. A. saw by the printed reports of the debate on Monday, that Mr. Moore stated in his speech that "the Clerk of this House has received the same evidence from the Governor of the State of Kentucky that I am the representative of the 5th congressional district, that he has transmitted to establish the claim of the other members from Kentucky."

It is therefore manifest, that the certificate under which Mr. Moore claims his seat, is a mere nullity.

It appears from this certificate that all the sheriffs met at Harrodsburg, on the 15th day after the election, the time and place appointed by law for them to convene. It is difficult to imagine how they could so far mistake their duty. The resul: of the election in every county was then a matter of public notoriety. The election of Mr. Letcher was announced in the newspapers; the sheriffs had their poll-books before them, that showed at once that he had a majority of the whole district.

They met on the 20th of August, and adjourned until the next day. Whence this delay? To add up the polls and give the certificate was not the work of an hour, yet it appears from the certificate that the subject was under consideration two days.

Mr. A. said that he understood from this statement, that the impression had been made that the Governor of Kentucky was (like the Governors of several other States) authorized to give certificates of election to members of Congress, and that he had, in this case, actually given such certificate. It is proper that any misapprehension on the subject should be corrected. There is no law in Kentucky that requires the Governor to certify who is elected to Congress: in this case the Governor has not undertaken to give any such certificate. Ile has fully dis It appears that a part of the sheriffs were not willing to charged his duty in transmitting to this House the original abide by the voice of a majority of the district; and to certificates of the sheriffs of the several congressional dis- control the majority, it seems that the sheriff of Lincoln tricts, which were filed in the office of the Secretary of marched off with his poll-book, and, in his absence, three State, and this is all the Governor has done in relation to of the sheriff's has undertaken to say who should represent the certificate in question.

that district.

DEC. 4, 1833.]

votes.

In Lincoln county, Mr. Letcher had a majority of 149 to his whole argument; for, if the facts were as had been stated by his colleague first up, what need could If this certificate should prevail, the people of Lincoln there be of any committee to judge of them? The sole (which is one of the oldest and most highly improved counties in Kentucky) need not be at the trouble of going to the polls at the next election; they can send their sheriff to say whether they shall be allowed to vote

or not.

question in the case was, whether the certificate which had been produced, was or was not of a legal character? The duty of the sheriffs was plainly pointed out by the law, and all to be decided was, whether they had complied with it or not. He then reviewed the certificate, In good old times, in Kentucky, said Mr. A., a certain and insisted that it was palpable that they had not. Nor candidate who had been beaten at an election, was asked could he admit, as had been concluded, that though the the reason of his defeat. 66 'Nothing but the want of a evidence furnished by such a paper might be incomplete, sufficient number of votes," was the reply. In those yet it was the next best that could be obtained in the times of simplicity, this was thought to be a very good case, and therefore ought to be received. Would it be reason; indeed, the idea of getting into Congress without admitted in a court of justice, in a case where there a majority of votes, had not then entered into the mind of were two witnesses to a fact, one of them competent, any one. But, said Mr. A., if the precedent which a de- credible, and disinterested, and the other of an opposite cision of this case in favor of the gentleman whose name character, that, if the first could not be obtained, the tesis returned (Mr. Moore) be once established, there will timony of the interested witness must be obtained, bein future be a way of coming to Congress independent of cause it was the next best? Surely not. Mr. C. dwelt upon the dangerous consequences that

the will of the people.

The poll-books from all the counties in the district reg- must grow out of the reception of such a paper to the ularly certified, according to all the requirements of the purity of elections, and the safety of the elective franlaw, was now on the Clerk's table, from which it appear-chise. If the nullity of the certificate had not been upon ed that Mr. Letcher had a clear majority of all the votes its face, then the case ought doubtless to take the usual given in the district. If the gentleman now offering to course, and go to a committee; but the defect was palpabe qualified should, for the present, succeed as the sitting ble, open to all, plain at first sight. member, and should finally lose the seat, the treasury Mr. LANE contended that the question before the would be charged with the mileage and per diem of both House was not, who had or had not received a mathe claimants, until the final decision of the controversy. jority of the votes given? but, who had produced the Mr. A. said he did not present this as a very prominent best prima facie evidence of his right to a seat? Now, he consideration; but still it was one that had a bearing on had yet to learn that Mr. Letcher had produced any certhe case, and ought not to be entirely unattended to. tificate of any kind. It was a principle of law, that in Mr. A. concluded by observing that he had endeavored cases where acts had been performed by persons legally to do his duty in bringing before the House this most sin-appointed to perform them, it was to be presumed that gular occurrence. He had presented the law and the those acts were rightly done, until the contrary should be facts of the case. It now remained with the Representa shown. Now, there might have been good reasons why tives of the people of the United States, assembled here, the votes of Lincoln county had not been included in the in the House of the people, to decide whether they will certificate; no election might have been held in that give their sanction to a proceeding by which the arbitrary county, or no returns received from it. It had been conwill of the deputy sheriffs shall be substituted for the vote tended by one gentleman [Mr. ALLAN] that a member of a whole district-a proceeding destructive to the rights was not to be admitted to a seat without papers perfect in and liberties of the people of the fifth congressional dis- all respects: but had Mr. Letcher such papers? If not, trict, injurious to the interests of the State of Kentucky, how, then, would the gentleman receive him? and may, as a precedent, affect the right of suffrage in every part of the Union.

Mr. MARSHALL said he concurred fally in the remark just made, that this question lay within a very narrow compass. Indeed, so narrow was the inquiry, and so palpable, as it seemed to him, was the correct conclusion, that, after the argument already advanced by two of his colleagues [Messrs. ALLAN and CHILTON] against the validity of the certificate, he had deemed any further remarks unnecessary to prove its ut ter insufficiency to entitle Mr. Moore to take his seat and be sworn in as a member of the House. But, as the debate had been continued by the gentleman who had just addressed the House in support of the certificate, he felt it to be his duty, as one of the Representatives from the State of Kentucky, where this question had arisen, to present his views to the House.

Mr. HAWES would not undertake to contradict what his colleague had stated as the facts of the case, but contended that these facts, according to his own showing, proved that the ancient method of admitting members to a seat ought to be resumed. He admitted that the certificate of the sheriffs was informal and defective, yet he insisted that it ought to be received, in the present stage of proceedings, as prima facie evidence of Mr. Moore's claim, and that he ought thereon to be received as the sitting member until further investigation It did not appear from the face of the certificate that if the votes of Lincoln county had been included, Mr. Letcher would have had a majority of the votes in the district. The omission of one of the sheriff's to certify, The single question now before the House was, whether was a case not provided for by the laws of Kentucky. A the certificate under which Mr. Moore claimed, containsimilar omission in the election of Governor, however, ed upon its face such evidence of his election, that this was provided for; and there the majority of the sheriff's House could safely, with a due regard to the law, to the were competent, after waiting for a prescribed period, to rights of its members, and to the rights of the great body make a return which should be valid in law. In case of of free electors, admit him to qualify as the representacongressional elections, the law assigned a punishment for the delinquent sheriffs, yet their failure ought not to deprive a man of his seat under such certificate as might be furnished him. Mr. H. professed entire impartiality, and only desired that justice might be done between the parties.

tive of the fifth congressional district of Kentucky. The gentlemen who have maintained the sufficiency of the certificate, have done so on the alleged ground that it contains prima facie evidence that Mr. Moore is elected. Prima facie, he said, was a term exceedingly indefinite. When the right of a gentleman claiming a seat here is unMr. CHILTON followed on the opposite side. Ile questioned, this fact alone may perhaps be considered as thought that his colleague's admission of the accu- prima facie evidence that he is elected. A gentleman racy of the statement of the facts of this case was fatal who has rumor in his favor, who comes forward as the

H. OF R.]

Kentucky Election.

[DEC. 4, 1833.

reputed member, and whose right of membership is un-certificate making known the result shall be signed by contested and unquestioned, would doubtless be admitted the sheriff of each county in the district. The law, to qualify and act as a member. But if his right were therefore, does not admit of any good reason for excluquestioned, if he were called on to exhibit the evidence of ding the vote of a county from the count-or, to speak his election, if another were on the spot claiming to be the elected member from the same district, he must bring forward a different grade of testimony from that which mere rumor would furnish-he must prove the fact of his election by that testimony which the law requires-by that testimony which the law and reason declare to be evidence of the fact.

more accurately, it does not admit that the result can be ascertained and certified by the sheriff, if the vote of a county be excluded. If there was room for conjecture or surmise, as to the causes of the exclusion of the Lin coln vote, those who claimed that the certificate on its face conferred or evidenced a right, were not at liberty to aid it and eke it out by surmise. If conjectures and surmises were to be allowed, they belonged to the other side. Against a paper so illegal and defective, the strongest presumptions might be indulged.

It is apparent, he said, that while gentlemen insist that this certificate contains sufficient evidence (prima facie ) of Mr. Moore's election, they find themselves compelled to supply its defects, to make it suficient, by conjecturing The certificate, Mr. M. said, is not only defective in its facts which the certificate does not state. The certifi- contents, by failing to state the main fact, the result of cate (due weight being given to all its parts) does not the election, and by showing that the legal means of as on its face assert that Mr. Moore has been elected by the certaining that fact had been omitted, it is also defective, whole district, but that he has received a majority of the and, as he contended, fatally defective, in its execution votes in four of the five counties which compose the dis-or authentication. The law requires the certificate of trict-the vote of Lincoln county not being taken into the election to be signed by the sheriff's of all the counties of calculation. The law of Kentucky, by which this case the district. This certificate is signed by but three, when must be decided, requires that all the votes shall be it should have been signed by five sheriffs. Partial as the counted. There is not in law or in reason, any other statement of the certificate is, that statement is not cri mode of ascertaining who has received the majority, but denced as the statute requires. And yet it is contended by faithful addition and comparison of all the votes given. that this paper is sufficient to entitle Mr. Moore to a seat It is by such addition and comparison that the law of Ken-in this House. tucky requires the result to be ascertained; and it is the If this paper, signed by three out of five sheriffs, sta result so ascertained which it authorizes the sheriffs to ting that Mr. Moore has received a majority in four out of certify. This certificate shows upon its face that all the five counties, is to be taken as sufficient evidence of be votes were not counted. It shows upon its face that the right to sit as a member of the House, on what ground entire vote of one of the five counties was excluded from could you refuse the seat to a gentleman who might prothe addition and comparison. It shows upon its face that duce a statement, signed by three out of five sheriffs, that the legal and only means of ascertaining the result of the he had received the majority in three, or two, or evea election were not adopted. It shows that the result of one, of five counties composing a district, the vote of the the election was not legally ascertained, and it cannot other counties not being taken into calculation? If this therefore pretend to state the result. It could not state is called a certificate, and is therefore deemed prima facit the result of the addition and comparison of the vote of sufficient, so might that be called a certificate-and there five counties, when it expressly states that the vote of one fore be good. If that should be deemed insufficient, be of the five was not included in the estimate. The fact cause it is not what the law requires, so must this, for the that Mr. Moore received the majority of votes in four same cause, be deemed insufficient. If the defects in counties, does not prove, it does not tend to prove, that the present case can be passed over, or supplied by con he received the majority in five counties. It does not jecture-if this certificate, utterly defective in the most prove, in the slightest degree, what the vote of the fifth essential requisites prescribed by the law, is still to be It does not furnish any ground of inference deemed (under the character of prima facie evidence) that the addition and comparison of the vote of the five sufficient to admit the gentleman named in it to a seat, counties would show a result similar to that exhibited by what paper can be brought here, in the shape of a cert the addition and comparison of the vote of the four counties.cate, signed by one or more of the sheriffs of a district, How, he asked, can an instrument be deemed prima that may not equally have that effect? facie evidence of Mr. Moore's election by the fifth dis- The great fact, Mr. M. said, of which we are seeking trict, which neither states that fact itself, nor any other evidence, and of which this certificate is presented as facts from which that fact must or can be properly in prima facie evidence, is the vote of the fifth congression ferred? The most that can be inferred from the body of al district-the election it has made of a representative is the certificate is, that Mr. Moore is or would be elected, the present Congress. By the laws and usages of Kenif the vote of Lincoln be not counted. But it neither tucky, the name and vote of every voter is entered in a appears that the vote of Lincoln ought to have been ex-book, at the moment his vote is given, by a clerk, and cluded, nor why it was in fact excluded from the count. under the inspection of judges of the election, appointed Gentlemen, however, guess that there was, or that there for the purpose. This is a record of the fact itself, made might have been, some good reason for excluding or while the fact is in progress, and is an essential accompa omitting the vote of Lincoln. He must repeat, in an niment, if not an essential part of the election. It affords swer to these surmises, that the law required all the votes prima facie, the very best evidence of the votes girch, to be counted, and allowed no other mode of ascertaining and of the election made. It is so regarded by the stat the result. The law of Kentucky, he said, requires the ute of Kentucky, which requires the sheriffs to ascertain sheriffs of the several counties comprising a congression- the result of the election by faithful addition and compar al district to meet, with the poll-books of their respective ison of the votes appearing on the poll-books (or rec counties, at a time and place prescribed, and, by faithful ords of election) of their several counties. The poll. addition and comparison of the votes, to ascertain who is books being the record of the facts from which the fe elected. The sheriff's have no discretion to exclude or sult stated in the certificate is a deduction, constitute the omit from the count any vote actually given, even by a sin- primary evidence, and, in comparison with the certificate, gle individual. That the law does not contemplate the the best evidence of the facts. How, then, does the cer possibility of the entire vote of a county being omitted, tificate, which is secondary and derivative in its charac appears not only from the mode prescribed for ascertain ter, acquire the force of evidence at all? It is solely, sa ing the result, but from the express requisition that the he, by virtue of the statute which authoriz.s the sherfs

county was.