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Mar 22, 1834.)
(H. OF R.
certain portion of the ladies ought to be allowed this majority and minority arrive at the same conclusion; and in right. Man, however, being the stronger vessel," pos that conclusion all the gentlemen who have addressed the sessing the power, physical and numerical, has deprived House concur, without hesitation. The first is, that there them of this privilege in every State of the Union. has been an election; and the second, that a part of the votes
In a state of nature, every man is a sovereign. He is given are to be stricken from the polls. Upon these two the sole regulator of his own actions. No man can bind points we all agree. But when we come to judge of the parhim: no one has a right to interfere with him. But when ticular votes to be rejected, then we disagree. And in dehe enters into society, he surrenders a portion of his batu- termining the various points which arise, it has been well ral rights, and submits himself, in a certain degree, to the remarked by a gentleman from Kentucky [Mr. Handen) control of others. The manner in which such control that this is a case sui generis; that it ought to be decided must be exercised, is pointed out with precision in the by the constitution and laws of Kentucky, and the pracconstitution and the laws; and, to be effective, it must con- lice under them, and not by precedent. If to these he form, in every important particular, to the rules which had added the constitution of ihe United States, I should are thus prescribed. If you attempt to exercise it in any have been satisfied with the rule be proposed. other mode, your acts are void, and impose no obligation Notwithstanding the merits of the whole controversy whatever. This proposition is perfectly indisputable: it are properly before the House, yet the votes more immeis as true as revelation itself.
diately under consideration are those given at Lancaster, One gentleman (Mr. MARSHALL) has informed us that in the county-of Garrard, whilst Moses V. Grant, Esq. it is sufficient, upon the present occasion, to advert to was presiding as judge on Monday morning, and the votes the constitution of Kentucky; that it alone furnishes a given at the same place on Tuesday, in the absence of sufficient rule to guide this House in its determination. The sheriff. Here i must be allowed to notice a position No proposition, in my opinion, could be more erroneous. advanced in the minority report, and in the arguments of We must first turn to the constitution of the United several gentlemen who have discussed this subject. It is States; we may then examine the constitution of Ken. said that the majority of the committee adimit that the fucky; and, lastly, explore the laws of that commonwealth. votes given on Monday morning, before ten o'clock, would From these three sources we can obtain the rules by have been good, if Mr. Grant had remained upon the which we should be governed. By the first, we are bench throughout the election. Now, sir, the report of empowered to judge of the elections and qualifications the committee contains no such admission, nor have I heard of our own members. By the second and third, the a single member of the committee advocate that doctrine. qualifications of voters, and the time, place, and manner In the report it is, in so many words, left undecided. It of holding elections, are particularly pointed out. Under is remarked that the committee might not bave rejected the constitution of Kentucky alone, no election could be the votes, if Grant had continued to act, thus leaving it held. The gentleman stated a case in which he sup- wholly undetermined. For my own part, I expressly disposed the people of a district to meet, and, in some way, claim having made any such admission. to manifest their choice (without any law) for a parti- With respect to the legality of the votes taken on Mon. cular person, as a representative in this body; that individ. day morning, it has been repeatedly asserted that the true wal arrives here with proof, by affidavits, or otherwise, question is, Has a sheriff the right to open the polls beof sach choice, and demands his seat; and the gentle fore ten o'clock? Upon this hinge, it is insisied, the man declares it to be his opinion that we would yield whole case turns. In this matter, I am compelled to dis. to the demand. But suppose that one-lialf, one-third, sent altogether from the gentlemen. Whether a sheriff or even a less number of voters in that district should could, or could not, under ordinary circumstances, all the Femonstrate against his right to a seat here: would this officers appointed by the county court being present, House disregard their complaint? I tell the gentleman proceed to open the polls before ten o'clock, is not the that, under no circumstances, as I conceive, could such true issue. In fact, it has little or nothing to do with the a title be recognised here. Sir, the constitution of the point'under consideration. The true issue is, Can a sheriff, United States presents an insuperable objection to it. before ten o'clock, which is the usual hour of opening the It declares (art. 1st, sec. 4th,) that “the times, places, polls throughout the State of Kentucky, declare the office and manner of holding elections for Senators and Rep- of a judge vacant, and appoint whom he pleases to fill resentatives shall be prescribed in each State by the Le. the vacancy, when the judge himself is on his way to the gislature thereof." This constitution is the paramount place of holding the election is in sight of the town, if lay of the land; and no valid election can be held until you please—and actually arrives there before ten o'clock? the State Legislature has prescribed the rules by which it Or, in other words, can the sheriff create a vacancy, by is to be governed. True, Congress have power to alter bis own arbitrary will, where there is none, either in fact these rules; but it must be done by law. This House or in law, and thereby thrust from the bench the judge cannot do it. And until a law is passed by Congress upon appointed by the court, filling the place with an india the subject, the law of the State must prevail. It is invidual of his own selection? Can this judge occupy the Fain to msist that, if the officers appointed by the consti- seat for an hour, until the usual time of opening the polls, tuted authorities refuse to serve, any unauthorized per- and then give place to the true judge? and shall the acts on may take their places; that, if the law requires thirty of the former be deemed legal, and receive our approbadays' notice, two days would be sufficient. It is in vain tion? The constitution says that the election shall be for gentlemen to say, in reply to the able argument of my held on the first Monday in August; the law provides that frend from Georgia, who made this report, that he is ad- the county court shall appoint iwo judges, and a clerk of hering to the letter of the law, and disregarding its spirit; the election, and that the sheriff shall open the polls by that this is an age of “liberal principles." 'Sir, these ten o'clock. If the judges or clerk do not attend, the principles are truly liberal! They lead to the overthrow sheriff
' is required to fill the vacancy, They are each to of all order; of all government. Instead of a Govern- take an oath of office, and to attend to receiving the votes, Tent of laws, which is the pride and the boast of every until the election is completed, and a fair statement made American, they offer us the most wild and lawless anar- of the whole amount thereof. The practice under this chy. They would prostrate the valued and established law, in Garrard, is proven to be, to open the polls at ten testitutions of the country, and transform our whole sys- u'clock; and this construction, it is believed, has been te7 into a “mobocracy.'
given to the law throughout the whole State. But, as the In this contest two things are admitted, on all hands. phrase "by ten o'clock" is used, the gentlemen contend Tuere is no difference of opinion with regard to them. The ihat the sheriff' may open the polls at any time between
II. OF R.]
(MAY 22, 1834.
midnight and that bour. Here they are strict construc- valid and deserves our unqualified sanction. So bold did tionists. They would hold us to the very letter itself. this position appear to the gentleman from Kentucky, (Mr. Upon another branch of the subject, we were told by the landiN,) who last addressed the House, that he endeavorgentleman from Pennsylvania [Nir. BANKS) that the pow. ed to avoid it by a more circuitous route. He contended ers of the sheriff must not be enlarged “by construction." that Mr. Spillman, who cried the votes in the absence of Let us apply ibat principle here. Let us look a little to the sheriff, was a deputy, and his acts were therefore legal. the consequences that flow legitimately from the argu- Let us examine this ground. How was he appointed a
It will not be denied that the law, in requiring deputy? Had he a warrant, or certificate of appointment? the county court to select two of their own body to act as None, whatever. Was he sworn? Not at all; yet the law judges of the election, intended that, under all ordinary requires that he should be. Was lie requested to do an circumstances, the judges who presided should be indi- official act? No; the gentleman informs us that the law viduals selected by that respectable body of men; and that does not require votes to be cried; that it is only a pracit was only in the event of certain contingencies that the tice that has grown up in the State. The only act wbich sheriff should be permitted to select either judges or clerk. the sheriff asked Spillman to perform was, to cry the The practice under the law has been in entire conform- votes. Yet the gentleman says that he was a deputy. ity to this supposition. But if, as gentlemen contend, the No certificate--no oath-not even required to do an offisheriff can, at any time before the hour of ten, open the cial act; and yet a deputy sheriff of Garrard county! Sir, polls, and fill all the vacancies that exist at the time of the gentleman complained of the "sophistical reasonings opening them; and if the mere fact of the judge and clerk of those who differed with him in opinion; but if this be not being present at the moment constitutes a vacancy, sound reasoning, then I confess that all the rules which I then is the whole object of the law defeated. The sheriff' have been taught, for the purpose of distinguishing true may, at every election, supersedle the officers appointed from faise reasoning, are utterly delusive and erroneous. by the court, by his own friends, or the friends and crea. Mr. Speaker, there is but one safe ground to occupy, tures of one of the candidates. He can attend at any mo- in relation to this whole subject. The constitution and laws ment after midnight-open the polls, and, having the per- of socie!y bave prescribed certain rules by which elecsons lie wishes on the spot, proceed to fill all the offices! tions shall be conducted. To these we must look in It is said they may resign. True. But suppose they do every contest: by these we must abide in all our decisnot choose to resign, as they would not in party times, or ions. An election which has not been held in accordance when a particular object was to be accomplished by their with them is absolutely void. appointment: the judges and clerk appointed in pursui. What is the object of these rules? Is it not to secure ance of the law might attend at the usual hour, and de. to us a good Government to give order, stability, and mand their seats; but it would be mere mockery to do so. security to the body politic?" It is, sir. Those who The individuals selected by the sheriff, and who, probably, framed them intended to protect us equally from the would never bave been chosen for any purpose by the iron tyranny of a despot, and from the uncertain, capricourt, will remain upon the bench, and control and man- cious sway of an uncontrollable mob. This can never be age the people of the county, in open defiance of their accomplished, but by adhering to the rules, as they have will, and of ihe plain and palpable meaning of the law. Sir, been established. Yet gentlemen contend that the peothis doctrine constitutes the sheriff of the county a mon- ple are not bound to know the rules; they are not required arch! It clothes him with the most alarming powers--io know the law! is not this a strange doctrine to be adpowers that were never designed to bē given him, and vocated by legal gentlemen; to be advocated by lawyers which can only be claimed by a most labored and far- of long practice, and of high eminence in their profession? fetched construction of the law. When gentlemen talk Sir, one of the first lessons taught in the legal scienceof absurd consequences resulting from the construction one of the fundamental principles upon which all judicial which the committee have given to the statule, it would proceedings are predicated is, that every man is bound be well for them to follow out the consequences of their to know the law. What would be thought of an inown principles.
dividual, arraigned in court for an offence, who should For wbat do we contend? Why, that as ten o'clock is plead that he did not know the law, and was not bound the usual hour of opening the polls the only time named to know it? What would be said to a party, in a civil in the law-and as the court have the power to appoint case, who would attempt to set up such a defence? They the judges and a clerk, and the sheriff only a power to would boll be silenced by the court; and that, too, with fill vacancies, the manifest intention of all this is, that the approbation of every lawyer in the countıy. the slieriff sball wait until ten before he declares the offi. Again, we are told that we ought to decide this ques. ces vacant, and proceeds to fill them by new appoint. tion upon principles of cquity; that we must not be techments. This is no labored construction. It is a fair, a nical, but must be guided by the justice of the case. I reasonable construction. It establishes a safe rule, that have more than once hieard very much such arguments in will protect the rights of all concerned. It gives effect to court, An advocate, finding all the principles of law all the provisions of the law, and so construes the vari- against him, appeals to what he calls equity and justice. ous clauses as that the whole statute may stand unim- He implores the court and jury to remember that it is a paired.
hard case, and that it is their duty to do what is right beIt is amusing, sir, to hear the gentlemen who call this tween the parties. Do we not all know to what this ara labored construction, and who insist so strenuously guent leads? It has been well remarked by an eminent upon our adherence to the language, to the plain letter writer, that if even a court of equity should disregard cerof the law, in this instance, when they arrive at another tain general rules and principles, all our rights would point, attempt to show that the presence of the sheriff depend upon the arbitrary will of the court; upon the is not necessary during the progress of the election. They notions entertained by the judge of what was right and admit that the law says the votes shall be given in the what was wrong. One judge would decide a cause one presence of the judges and the sheriff, and yet contend/ way, and another would decide a similar cause differently. that the sheriff need not be present; that he may leave We should have no rule but the dictates of the chance). the town, and call some one of the neighbors to cry the lor's conscience, or the length of his foot! The laws turvotes and discharge the various duties of the presiding nishi a certain criterion by which all our rights can be de officer. He may ride through the county electioneering termined. Disregard these, and you set up in their place for one of the candidates, or employ himself in any man. the opinions, notions, and feelings of the court and jury, ner he pleases; and yet, all that is done in his absence is in every case that comes before them. Are gentlemen
Mar 22, 1834.)
[ll. or R.
prepared for this? Are they willing to set aside the elec- ments that the most fertile imagination can bestow. They lion laws of the States, and be governed by the opinions cling to it with the violence of a shipwrecked mariner of the honorable members of this House? For my part, who feels that his only hope is the plank in his grasp, I can never sanction such a state of things; nor can and that some more powerful arm is tearing even that countenance principles that must inevitably lead to such plank from his possession. We are urged to concede the a revolution. In the language of the Pittsburg memorial, point, with a degree of earnestness and eloquence that read bere the other day, I go “for the supremacy of the requires the utmost strength and resolution to resist the laws and constitution of my country.”
overpowering influence. Nearly allied to the argument which I have just con- For one, sir, I beg to be excused. The position itself sidered, is another one equally fallacious, when applied is wholly defenceless; and I cannot but believe that gento this election. The gentleman from Pennsylvania (Mr. tlemen will find it so upon a closer examination. What Baxis) insists that Grant was acting under color of au- is an election? One gentleman (Mr. Marshall) informed thority, and that his acts were therefore good; that he sat us that it was an expression of the choice of a majority of in the place of a judge; that he had all the emblems of the voters. This is a sound definition, so far as it goes. authority about bim, and the people were not bound 10 It is the truth; but it is not the whole truth. An election inquire whether he was legally authorized to receive votes is an expression of the will of a majority of the voters, or not. Apply this doctrine to the practical concerns of manifested according to the provisions of the constitution life. Suppose a person comes to your house claiming to and laws. Unless their choice is made known in the be the tas-gatherer of the county; he has a book contain mode prescribed by these, the act is void; it is no elecing the names of yourself and neighbors, with an amount tion; it binds no one; it confers no privilege whalever. of chattel and land tax against each one; he is a decent, what do these instruments require? They not only degentlemanly looking personage, and you have no reason fine, particularly, who may vote, but they point out, speto doubt his being fully authorized to receive your taxes; cifically, the time, place, and manner of voting. They you pay him, and take his receipt. But, to your utter not only declare who may give votes, but they are equally astonishment, on the next day the proper officer appoint-precise in declaring who shall receive the votes so given. ed by the Government to collect the revenue appears There must be both givers and receivers. We can no at your door and demands the payment of your quota of more have an election without some tribunal to receive the public levy! Will your receipt protect you?--will it and record the votes, than we can without some person do to talk about the stranger's having the color of author- to give the votes which the law requires to be recorded. ity or of office? Why, we all know it would not. Sup- Is there a doubt about this? Is not one as necessary, both pose, again, that there is a judgment against you in court by the law, and from the very nature of things, as the for a sum of money; an individual, professing to be a other? Does not the truth of this proposition strike sheriff or deputy sheriff, but who is not so, calls upon you every mind with irresistible force? It does, sir. And and demands payment of the amount; you discharge the you might as well wage war with the tempest in its mad debt, and take a receipt; will it protect you when the true career, as undertake to combat a principle so far beyond officer appears? Sir, it would be worse than idle to talk the reach of refutation. to him about the color of oflice or authority. The money By an election, a part of the community appoint public Would have to be paid again.
agents or servants, whose acts are obligatory iipon all. The answer to all that has been advanced upon this Yes, sir, I repeat it, they appoint public servants; for, point is, that there is a wide difference between acts that democrats as we are, republicans as we may profess to be, are coid, and those that are only voidable. Every lawyer or “whigs” as we may liave recently become, we are too is aware of this. When a man undertakes to discharge apt to forget the rock from which we have been bewn;" the duties of a public officer by virtue of an appointment and it is well for us to be reminded that we are but seror authority that is merely defective, or informal in some vants to the great mass of our fellow-citizens, bound by particular, but which has been conferred by the proper their will, and responsible to them for all our conduct. tribunal, then liis acts are not to prejudice third persons. But the acts of the agents are not, and ought not to be, Individuals are allowed to recognise him as a public offi- binding upon all, unless made according to law. A more cer, without inquiring into all the merits of his title to obvious truism could scarcely be presented to the human such distinction. As, for instance, if an office becomes understanding. Yet the minority of the committee boldly vacant, and the persons authorized to fill the vacancy avow the doctrine, and are sustained by the arguments make an appoiniment, which is not made, however, in advanced upon this foor, that if persons, having no allexact conformity to law-which is defective in its form--thority whatever, should drag the judges from the bench, here individuals might be protected by bis acts. But and usurp the authority to preside over the election, when an appointment is wholly nugatory in its inception; their acts would be legal, the election would be valid, when it is void in the first instance, as in the case of this and the candidate having a majority of votes, thus bejudge; when it is made to fill a vacancy that has not hap- stowed, would be entitled to a seat in this House. I conpencil--that does not exist--then all his acts are totally less, sir, that I am startled when I hear such principles void; they neither protect himself nor any one else. avowed in the House of Representatives of the United They can neither be recognised in a court of justice, nor States. I ain the more amazed, when these disorganizing before any other tribunal ihat pretends to be governed by theories are put forth by fionorable members, who have
been so loud and so veliement against the President and Throughout this discussion, as well as in the report of the Secretary of the Treasury, for alleged usurpations the minority, there is one point to which our attention is and violations of law with regard to the United States earnestly called. It is said, sir, that the chief, if not the Bank and the public revenues of the country. Why have only inquiry should be, were the persons who voted they so suddenly become the advocates of “usurpers?" properly qualified to do so, according to the constitution? Is not usurpation the same in every department of the If so, it is but of litile consequence who presided. To Governmeni? Sir, I am against it, let it come in what this proposition we are constantly referred. Of its pecu- shape, or from what quarter it may. I oppose it in judges larly important character we are perpetually reminded. of an election; I oppose it in this tlouse; I denounce it It seems, from the arguments of honorable members, 10 in the Senate; and convince me that the Executive bas possess a paramount interest over every other considera- been guilty of it, and I will condemn him as freely and tion that has been named. They present it in every va- cordially as I now support him. The gentleman from riety of shape and surface; it is decorated with all the orna- Kentucky (Mr. MarsuALL) insisted that the sheriff could
H. OF R.]
[Mar 22, 1834.
make a temporary appointment of judges. This he in- of the judges, an oath is administered by the clerk as to ferred from the facts, that the judges and clerk hold their his right of voting. If the judges are divided in opinion, offices for a year; and as there might be more than one the sheriff gives the casting voice, and settles the right of election during that period, and they might be absent the voter. from one and present at the others, it would be necessary When the vote is given he cries it; when the election for the sheriffto appoint officers to serve during their is over he closes the polls, takes charge of the poll-books, absence. Suppose this to be so, does it legalize Grani's and carries them to the place of meeting, where all the appointment? Clearly not. For he was appointed before sheriffs in the district convene to compare and add the the vacancy occurred; and he left the bench at ten o'clock; whole number of votes, and give a certificate to the can. when the law declares that the judges and clerk ap- didate electeil. In addition to this, the law expressly pointed shall attend to receiving votes until the election requires that the votes shall be given in the presence of is completed, and shall then certify the same. Here the the judges and the sheriff. One would suppose that lanjudge leaves the bench before the election is closed; he guage could not well be made plainer, and that there does not count the votes taken whilst he was presiding; could be but one opinion about the true construction of and he makes no certificate at all of what was done du- this law. Yet, strange to tell, our opinions differ as ring the time he officiated. Mr. Wheeler, who suc- widely as the poles. The same gentlemen who are for ceeded him, could not certify to what was done before conferring such alarming powers upon this officer, with he came to town; and so far as his certificate purports to regard to opening the polls, filling vacancies, &c., would cover Grant's doings, it is a nullity. If, therefore, the have us believe, upon this branch of the subject, that his sheriff could appoint a judge to preside during one elec- powers and duties are almost nominal. They inform us tion in the year, it by no means follows that he can ap- that he merely keeps order, that he only cries the votes point one to officiate for an liour or two, and then absent by custom, that he gives all the information to the judges himself without leaving behind him the sliglitest traces of which he can, and has no voice, except as a witness, in his official existence.
controlling the rights of the electors! In attempting to We have heard, sir, that Mr. Grant was sworn as a explain away the law, and make it wholly inoperative so judge. By reference to the depositions, it will be seen far as it requires the sheriff to be present when the votes that this is very doubtful. The sheriff' testifies that he are given, ihe gentlemen have insisted that he is not a believes Mr. Grant was sworn, and that H. McKee, Esq. judge of the election; that he does not decide upon the aclministered the oath. But in another part of his depo- rights of the voters, (although the proof is exactly the sition, he states that he appointed Grant, because there reverse in this case,) and that, therefore, bis absence is was no other justice in town. How, then, could Esquire an immaterial circumstance. McKee be there to swear the persons appointed? It is To establish this position much stress has been laid upon extremely probable that the sheriff is mistaken, and that the fact that the judges selected by the county court are they were not sworn at all.
compelled to take an oath of office, as judges of the Somewhat akin to this, is another argument of a gen-election, but the sheriff is not. They are justices of the tleman from Kentucky, (Mr. HARDIN,) who, in order to peace, selected from among the members of the county connect and legalize the acts of Grant and Whceler, con- court; they have, of course, taken an oath of office before tended that Grant resigned at ten o'clock. Yes, sir, the they are called upon to act as judges of the election. Yet sheriff appointed Grant at nine o'clock, to fill the vacancy the law requires them to be sworn again. So of the occasioned by the absence of Wheeler; Grant took his sheriff; he is a higli officer, well known to the law. He seat; he had no written appointment; there is no record too has taken an oath of office. But when he is called or entry made of it; it is uncertain whether he was even upon to preside at the election, he is not required to be
He remains at the bench till ten, the usual hour sworn as a judge. Here the honorable gentlemen seemof opening the polls, when Mr. Wheeler arrives and takesed to congratulate themselves upon the discovery of what Grant's place; or, according to the gentleman, Grant they are pleased to call “ a marked distinction" between “resigns," and, I suppose, Wheeler was appointed to fill the sheriff and the judges. They pause at this point the vacancy occasioned hy Gra:l's resignation. No entry and inquire, exultingly, why this “ marked distinction" is made of the resignation; none of the new appointment between the provisions of the law relating to these respecof Wheeler. Yet we are told that this is all legal; and tive officers, if it were intended that he should perform, that, too, by an honorable member who charges others in any respect, the functions of a judge? Here they apwith resorting to “sophistical” reasoning and cob-web pear to think that the committee is completely hemmed technicalities.” Such arguments as these may be very up, without the possibility of escape. cogent and conclusive. To me, however, they appear It is strange how we often delude ourselves and others but bubbles, floating upon the surface of the stream. by looking only at one side of a question, or by deciding Gilded by the sunbeams, they reflect all the gaudy color- upon it without taking time for reflection. The difficulty ing of the rainbow; touched by the spear of truth, they which gentlemen have conjured up is readily removed. burst without either noise or resistance,
It is a problem that may be solved with the utmost facil. Having shown, I trust, that the votes taken on Monday ity. I will tell the honorable members why this distincbefore ten o'clock, whilst Moses Grant acted as judge, tion is made. The sheriff holds his office for two years; were not received according to law, that the whole pro- it is a part of his official duty to preside at every election cedure was illegal and void, and that the votes so taken which is held in the county during that period. Hence, must be rejected, I shall now ask the attention of the when he takes an oath of office, the obligation to preside House whilst I submit a few observations relative to the at elections is included in the oath, just as much so as any votes taken in the absence of the sheriff on Tuesday. other part of his official duty. Nothing is clearer than These, I am satisfied, are illegal also, and ought not to this. be counted in deciding upon the claims of the candi- But it is not so with the justices; a man may be a jusdates.
tice of the peace for fifty years, and never act as a judge The sheriff in Kentucky possesses very important of the election. The county court is composed of all the powers with respect to the elections, but they are not justices in the county, and meets monthly: At their anquite so extensive as the gentlemen have supposed. He nual meeting, preceding the August election, they are to is required by law to open the polls; he presides and select two members from their own body, to act as judges keeps order; he scrutinizes the qualifications of the at the election. They may select the same two persons electors; unless the individual is known to him, or to one year after year, if they choose, for a quarter of a century.
Mar 22, 1834.)
[H. OF R.
Where there are from twenty to a hundred justices in the the central Government and the rights and powers of the county, many of them rnay never act as judges of an several States of this Union, and would in the end lead to election during their lives. Still they are going on dis- a tyranny as odious as the most absolute despotism. charging all their duties as justices of the peace, both as Having shown, I think, that the twenty-five votes given single magistrates and as members of the county court. at Lancaster on Monday, whilst M. Grant, Esq. was preTo ensure the faithful performance of these, an oath of siding, and the forty-five given on Tuesday at the same office is administered to them when they are first commis- place, in the absence of the sheriff, ought not to be re. sioned. But should they, in the course of their lives, beceived, I will very briefly notice some other points that appointed by the court as judges of the election, which have been touched in this discussion. is a separate and distinct office, then they are sworn faith- The gentleman last up (Mr. HARDIN) spoke of the stufully to discharge the duties appertaining to their new dents of Danville College, whose votes have been stricken appointment is not this a solution of the problem? It from the polls. The constitution of Kentucky gives the appears so to me; and I hope the gentlemen are satisfac- right of suffrage to individuals who reside in the State torily answered.
two years, or in the county one year; and requires them The law peremptorily requires the votes to be given in to vote in the county or precinct where they actually rethe presence of the sheriff. The fact is in proof that side at the time of the election. The majority of the they were not so given. He was absent from the place committee believed that the constitution did not intend of holding the election during the greater part of the day, that residence alone, in the most unlimited sense of that and at the time these votes were given he had no deputy word, should bestow the right of suffrage. If this were there. The evidence upon these points is unquestiona. so, aliens who might reside a year in any one county ble, unless we adopt the theory of the gentleman from would thereby entitle themselves to this high immunity. Kentucky, (Mr. Hardis,] that Spillman became a deputy We believed that this clause deserved a fair and reasonaby a bare request that he would cry the votes given. 1 ble construction, and that the residence intended was a bave already expressed my opinion with regard to this permanent residence for the time, an actual home or dom. proposition, and do not think it possible to add any thing icil in the State. In this view of the question we found to the argument of my friend from Georgia [Mr. Jones] ourselves siistained by a decision of the Senate of that upon this sabject. He totally demolished the whole su- Commonwealth, in a contested election between Williams perstructure.
and Mason. Upon that occasion it was determined that II, then, the law and the facts are as I have stated them a citizen of Kentucky, who had been out of the State for to be, how can any one pretend that these votes are valid, five years, had not lost the right of suffrage. There was and ought to be counted upon the present occasion? no proof that he left the State permanently to reside elseWill any one insist, in this instance also, that it is a hard where. This was undoubtedly a correct decision. In case; that the sheriff was necessarily absent; that this is a ascertaining the home of an individual, almost the whole mere informality? Sir, we must either conduct the elec- inquiry turns upon the intention of the voter. Did he tion according to law, or not. If we can dispense with leave ihe State with an intention not to return? Was he the sheriff, we can upon the same principle excuse one absent on a visit or on business, or did he abandon the of the judges from attendance; if we can allow one to go, country? we can spare both, and the clerk with them! Where Now, we have only to reverse this rule, that it may aid will it end? That is the question. Can you place bounds us in deciding the rights of students at a college, or tranto this principle? If so, where are they to be found? sient persons of any description. What is their business The moment we abandon the law, we are afloat upon the in Danville, having come there from other States and broad ocean of uncertainty, where we shall be drifted by counties, and remained in that place for two or three the wind and tide among the rocks and whirlpools where years? Is it to become citizens of that county or of the nothing but the arm of Omnipotence can save us from State? Is it to reside permanently, and to amalgamate destruction.
with the people there; or is it to obtain an education, and I cannot see how any friend of State rights can think then leave the place? Are they in the town as citizens, of adopting the doctrines contended for upon the other having selected it as a home; or are they only there for a side. The States have the power to regulate the time, temporary purpose, the time of their stay being necessaplace, and manner of holding the elections. It is ex- rily limited? These were questions which the committee pressly recognised in the federal constitution, as I have had to consider for themselves; and the conclusion at already observed. The State of Kentucky, as well as all which they arrived was, that the residence of a young others in the Union, has exercised this right, and fixed man at school or college, for the sole purpose of pursuing the manner of holding the election. Without a substan. This studies, is not such a residence as confers the right of lial conformity to the rule she has adopted, the election suffrage. is void just so far as it is contrary to the law. The cases In this opinion they were not only confirmed by the of Jackson and Wayne, and Scott and Easton, both deci- authorities which they consulted, but by the general unded in this flouse, have settled that principle. To disre- derstanding of the community. No father believes, when gard the law of the State, and confirm an election merely he sends his son from Ohio to Kentucky to obtain an eduupon our own ideas of justice, would be a most flagrant cation, that by such removal the son ceases to be an act of usurpation. We may talk of State rights as much Ohioan, and becomes a citizen of Kentucky? Does the as we please; we may be friendly to the doctrine whilst son expect that, when he returns to his former residence, it is uur interest to be so; we may deprecate, in the most he will be treated as a foreigner, and be compelled to vehement and eloquent language, the tendency of this undergo a quarantine in his native county before he can Federal Government to absorb all the reserved rights of exercise the rights of citizenship? Surely this is not the the people and of the States; but if we disregard the laws doctrine which prevails among the citizens of the several of the states, enacted upon a subject expressly reserved States who send their sons from home to be educated. for their legislation, and substitute our own will for their Yet to such results must we come if we permit students solemn statuies, I bolelly assert that we shall have estab- to exercise the right of suffrage merely on the ground of Tisbed a principle which will destroy the last vestige of their residence at college. It will hardly be pretended liberty reserved to the members of this confederacy. that they possess this right in two or three States at the Such a principle, carried out, must lead to the concentra- same time. tion of all power in the General Government. It would Whilst upon this subject I will remark that we decided Oferleap the barriers erected between the authority of two cases with great facility and unanimity. They were