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MAT, 1834.)

Kentucky Contested Election.

(H. OF R.



fession on this foor, in which the plain language of a I conceive it to be clear that it does not. The principle statute, making a deed absolutely null and void to all in- which sustains the exercise of such authority, to the whole tents and purposes in a certain event, (as, for instance, extent that the rights of third persons are concerned, is unless recorded in a certain time,) as has been restricted perfectly established, and the business of life could not by courts of law as well as of equity, so as to make the in- proceed in safety without its aid. The maintenance of strument only so far void as the policy of the law're the principle, that official authority de facto is entitled to quired. There is nothing in a mere statutory enactment respect, concerns the security of the whole people. We more than in a private agreement, that places it beyond must acknowledge our deeds before judges and justices, the influence of the considerations that have led to these or expose our titles to destruction. Our writs must be decisions. The principle is one of universal application. executed by sheriffs and their deputies, and our lanı

I submit, then, to the consideration of the House, that warrants be surveyed by official surveyors. Electors when the votes of qualified electors have been received must give their votes to judges, inspectors, or other minby the judges, no defect in the form of appointing or isters of the law appointed to receive them.. All these qualifying the judges, or in receiving, comparing, return- officers may have some latent defect of authority, which, ing, or certifying the votes, ought to be deemed neces. in questions concerning themselves only, may be justly sarily fatal to their influence in the election. The forms set up against them; but there can be no security to the may be to some extent material, but they are not essen- property and rights of any man, if such a defect can be tial and indispensable. It may become a question whether set up to defeat the official act to which a third person their omission or perversion has not tended to defeat a has trusted, relying upon the open and unquestioned exfair expression of the public will. The presumption, or ercise of an apparent authority. There is the highest prima facies, may be that it has done so. But when it authority for saying that the acts of such officers, de facto, is satisfactorily shown to the House that no such effect are good as to third persons. The question has often has been produced, that the votes received were good, occurred in regard to a defect of authority arising from and that all presumption arising from the non-observance an omission to take an oath of office. Unless the officer of forms is rebutted and taken off, then I apprehend the takes the oath prescribed by law, the office is void as to objection to want of form must cease, and the legal votes himself, but only to himself. He cannot sue for his fees; claim their due weight in the decision of the House. he is liable to punishment for intermeddling with office What I submit to the House is, that the prescribed forms until he is legally qualified; yet, in regard to third perof an election are not part of the qualifications of a voter; sons, the validity of his acts is unquestionable; for otherand that it is the duty of the House to respect legal votes, wise, not only those who in no way infringe the law, but without regard to form, where it can be ascertained that whose benefit is intended to be advanced by it, might the omission of form has done no prejudice to the rights suffer by faults to which they were in nowise privy. Sir, of the citizens, and where the law of the State has not the position is universally true, that where one comes to expressly declared that a non-compliance with forms shall his office by color of title, his acts are valid, where they be fatal.

concern the public, or the rights of third persons who It may, however, be said, that the due qualification of have an interest in the act done. A county treasurer in that tribunal by which votes are to be received and judged, Pennsylvania, though, unless he has taken the oath preand its continued presence and operation throughout the scribed by the constitution, he cannot maintain an action election, are no matter of form or ceremony, and do not for his fees, is competent to receive and give acquittances come within the influence of the principles I have ad- to third persons for money paid into the treasury: Comverted to.

missioners of highways in New York, though subject to a There is another principle, sir, of as general applica- penalty unless they take the oath of office, and liable to tion, and of as indispensable use to society at large, as be superseded by a new election, yet, while exercising that of making the words of a statute yield to its spirit and their office de facto, may lay out a public highway accorddesign; which principle, in my judgment, relieves the ing to statute, and the town clerk is bound to record it. Garrard county election from all objections raised against The public interest gives validity to their colorable it by the committee.

authority. All the acts of such officers are valid, except There is no doubt that, throughout the first two days such as are arbitrary and voluntary, and do not affect of the election, from the opening to the close of the polls, private or public interests. The mayor of a corporation, two judges were present, who were appointed by the who, without being duly qualified, is not a mayor de jure, sheriff; and that the sheriff had power to appoint them yet, being so de facto, may bind the corporation by putting immediately preceding the opening of the election, if its seal to a bond; and al:hough the corporation may rethose appointed by the county court failed to attend. It move or displace him, yet, in the mean time, all judicial is not, as far as I recollect, contended by any one, that and ministerial acts done by him are good. All that is the sheriff was not authorized to appoint judges, and to requisite to bring the principle into operation is, that the open the election before 10 o'clock, if the judges named officer should be in the exercise of his office, by color of by the court had refused to attend, or had been incapaci- an election or appointment. tated by sickness or death. No gentleman has asserted Now, sir, if it has been deemed necessary, as it has been, the necessity of waiting until ten, for judges who would in the case of justices, sheriffs, mayors, and county comnot or could not attend. Then, sir, the polls, before the missioners, to give this security to private rights, how hour of ten, presented to the voters and to the public, vastly more so is it in the case of the judges, inspectors, the case of judges exercising their office, in the presence and officers of a public election, to protect the enjoyment of the sheriff, who had authority upon the refusal or in- of that inestimable right of suffrage, upon the due exercapacity of the other judges to appoint them; and their cise of which the existence of our political societies dewas nothing to apprize the electors that the very fact of pends. How is the elector to know whether the judge refusal or incapacity had not occurred. One of them, or the clerk has been in all respects duly appointed and Isaac Marksbury, had refused; and there was nothing in qualified? What gives him the authority to ask for evidence appearance to distinguish his case from that of Wheeler. Of it? How are the public to be protected from trick and Here, then, was the case of judicial authority de facto, in fraud to defeat an election, if the principle I have advertopen exercise at the place of election, in the very pres- ed to is held not to apply. The fact of irregularity is most ence of the appointing officer; and the question is, whethe: frequently known only to those who are guilty of it. It the defect now alleged in argument, that Wheeler had may be purposely committed and purposely concealed not in fact refused, vitiates the votes received by Grant. until the result of the election shall furnish a motive for

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its disclosure; and that which this House will never know the consequence of respecting them would have been to if the candidate favored by the officers of an election exclude legal votes. I will refer to some of the cases. shall succeed, they will infallibly know when it shall be- The case of Prior Lea, decided in the first session of come expedient to defeat his successful opponent. It the twenty-first Congress, was one of the strongest charis the duty of the House to remove all temptation to trick acter, and, indeed, may be regarded as a test case of the and fraudulent contrivance, by denying to irregularity distinction between what is called form and substance. The the least influence upon the polls when the elector's law of Tennessee enjoined, among other ceremonies, that, have been in no degree privy to it.

at the close of each day of election, the sheriff should, in The same course of remark, sir, meets the objection the presence of the inspectors, put his seal on the opening to certain of the polls on the secondlay, in consequence in the ballot-box by which the ballots were introduced, of the absence of sheriff Let it be taken for which seal should continue until the election should be regranted that his presence, or that of an anthorized depu- newed on the ensuing day; and that the inspectors should ty, was indispensable, according to the provision of the take charge of the box until the polls were opened the next law, that no necessity, however urgent, not even that of day, and the seal should then be taken off in their pres. attending by the side of a dying wife, that no consent of ence. Now, sir, in the case of election by ballot, these the judges, could excuse him; that the appointment of provisions are not only of the substance, but of the very Spillman to supply his place was not a legal deputation, essence of the regulations prescribed for conducting it. (a point which those who have listened to the argument The introduction of false ballots into the boxes between of the gentleman from Kentucky (Mr. Hannin) will think the days of election, is irremediably fatal to the purity of it difficult to sustain;) and that Marksbury, who cried the the election. If the fact of addition can be detected, the votes with the assent of the judges in the presence of character of it cannot. During the continuance of an Spillman, after the latter bad ceased, was not acting for election by ballot, the ballots should be guarded with as and in the name of Spillman, whom the sheriff had depu- much vigilance as the restal fire. Hence, the wisdom of ted. Grant all these positions, and still the case pre- that precaution which required one officer, the sheriff, sents that of an exercise of authority by Spillman or to seal the box, and other officers, the inspectors, to rein his presence, by color of appointment by the sher. tain its custody, and to be present when the same seal iff. I perceive none of the difficulties which the sheriff's was broken at the renewal of the election on the sucabsence, without a lawful deputy remaining, is supposed ceeding day. The evidence in the case showed, that in to create in the execution of the law. I think bis pres- one precinct the ballot-box was not left in charge of the ence was not requisite; but, under any view of the law, inspectors, but with the sheriff who had sealed it, and the substitution of Spillman was an apparent or colorable who placed it, with their approbation, in a trunk, of authority, to which the principle I have adverted to gives which the sheriff kept the key, which trunk was placed a sanction, for the sake of the public and the individuals, in a room of which the occupant kept the key. in another the exercise of whose rights it promoted. This principle precinct, instead of a ballot-box a gourd was used, and, of authority de facto, reputed public anthority exercised instead of sealing it, the sheriff stopped up the entrance openly without objection or suspicion, is, I submit, sir, with paper, tied the whole in a handkerchief, and left it abundantly sufficient to clear the election at Lancaster with one of the inspectors. The law was thus, in the from all the difficulties that have been suggested. If it two precincts, violated in opposite directions, each tendbe admitted that the formation of the tribunal for receiv. ing to the same mischief. In one precinct, the custody ing the votes is as much matter of substance as any pre- of the ballot-box was exclusively with the sheriff; in the scription of the statute, (and I do not mean to question it,) other, it was exclusively with the inspectors. The mani. the substance existed to the whole extent that the princi- fest intention of the law was, that it should be in the ples of law require, where the rights of third persons are custody of both--of the sheriff, by his seal, and of the in. to be affected.

spectors, by their possession. Such was its spirit as well I deem myself entitled to ask gentlemen who do not as its language; and the provision was one as little cereadopt this reasoning, whether they will surrender any of monial or modal as any one in the law; . Yet, the House the provisions of the statute, or insist upon exact confórm- being satisfied that the irregularity bad, in point of fact, ity to all. If they are willing to dispense with none of produced no mischief, it was disregarded. them, the whole course of decision is against them. If So in the case of John Richards, (Cases of Contested they are disposed to surrender some of them, but not those Elections, p. 95,) though the election law of Pennsylvawhich are in question here, they are bound to state the nia prescribed that the army returns should be sent to the principle by which what is of indispensable observance prothonotaries of the respective counties by the 10th of to the letter may always be known. As all election regu- November, and though the return judges disregarded lations, except iime and place, are, in the language of the one of them because it was not sent iill after the ioch of constitution, manner or form, they must explain to the November, this House, nevertheless, gave the seat to the House the rule by wbich what they regard as substantial candidate not returned, who, by force of the army return and indispensable form, is to be distinguished from formal that was rejected, bad the highest number of votes. This form. Is it matter of indispensable observance, that the was a question of time, and time is part of the controelection shall not be opened before ten to give another versy in the present case. hour to the voters, when the constitution certainly gives In like manner, in the case of Spaulding vs. Mead, the whole day, and two more if required by a candidate? (Cases of Contested Elections, p. 157,) the House, upon Is it indispensable that the judge, appointed by the court, mature discussion and deliberation, adopted the general should be allowed by his absence to retard the opening of principle, that, being the exclusive judge of the elections the election, when provision is made to supply his place and returns, as well as of the qualifications of its memby another justice of the peace, appointed by the sheriff? bers, the returns from the State authorities were only Is it indispensable that the sheriff shall be present through- prima facie evidence of an election, and not conclusive out the election, when the law does not appoint any thing upon the House. And most wise as well as essential was for him to do? Are these to be deemed matter of sub- the decision; for if the returns were conclusive, the stance, fatal to all the votes received during the irregular power of judging was nugatory. So, if an inadvertent ily, when by the poll-books you have the means of ascer- slip in any of ihe circumstances of an election be conclutaining, and in this very case have ascertained, that the sive upon the House, the power of judging is nugatory: votes so received were good and valid? Sir, this House That case records and establishes the principle by which has disregarded provisions as substantial as these, when the present contest should be settled, as it is the only Mar, 1834.)

Kentucky Contested Election.

(H. OF R.

principle which is in harmony with our institutions. “The By the first section of the act of Kentucky, of the 2d of great principle in judging of elections ought to be, that December, 1799, it is enacted, “that the justices of the the will of the people, fairly expressed, shall govern; and county court shall, at their court next preceding the first that construction of the constitution and laws of the Uni- Monday in August in every year, appoint two of their own ted States ought to prevail, wbich consists in giving effect body as judges of the election then next ensuing, and also to good votes rather than in destroying them." Another a proper person to act as clerk; and, in case the county case establishes a principle of equal importance, so ably court shall fail to make such appointments, or the persons maintained by the gentleman from Kentucky, [Mr. Man- appointed, or any of them, fail to attend, the sheriff shall, SHALL,] that no candidate is entitled to a seat who is not immediately preceding every election, appoint others to elected by the majority or greatest number of the legal act in their stead." The second section enacts, “that votes taken and offered at the election; and that the peo- the sheriff of each county shall advertise, at least one ple shall not be deprived of their representative by the month before the first Monday in August in every year, fault of their election officers, whether it be the result of the time and place of holding the election, and what accident, ignorance, or fraud. (McFarland vs. Cul- offices are to be filled; and that the sheriff, or other peper, Cases of Contested Elections, p. 221.) It is the presiding officer, shall, on the day of the election, open general rule, as stated by Mr. Madison, in the case the poll by ten o'clock in the morning, and continue of Jackson vs. Wayne, (Cases of Contested Elections, the same open until at least one hour before sunset p. 86,) that “whoever has the majority of sound votes is each day.” The third section enacts that the judges of the the legal representative.” The report now under dis- election and the clerk, before proceeding to act as such, cussion offends the law, according to my apprehension, shall take the oath prescribed by the constitution, and in both particulars. It holds an alleged irregularity in that they shall attend to the receiving of the votes until the time of opening the election, in the appointment of a the election is completed, and a fair statement make of the judge, and in the absence of the sheriff--none of them pro. whole amount thereof;" and it requires that the person ductive of the least assignable mischief-to be fatal to all entitled to suffrage shall, in the presence of the said the good votes received during the occurrence; and it is judges and sheriff, vote personally and publicly, viva voce. in favor of giving the seat to a member who, by the re. Unless the sheriff or one of the judges shall know the jection of these votes, is the representative of a minority. person offering to vote to be entitled to suffrage, the clerk

The principles, then, sir, which, in my judgment, ob is directed to administer to him the oath that he believes he viate the alleged irregularities in the Garrard election, is twenty-one years of age, that he has resided two years in even if they must be admitted to have been such, accord- the State, or that he has resided in the county one year ing to the true interpretation of the Kentucky statute, last past, and that he has not previously voted at that elecare, that the election was, apparently, regular; that the tion. These are all the provisions of the constitution and judges had good authority, de facto, by virtue of the law of Kentucky necessary to the inquiry. sheriff's appointment; that Spillman and Marksbury had, If the sheriff could open the election before ten, the in like manner, a good authority; and that the electors, appointment of Moses Grant was legal, for William Wheelnot being privy to the irregularities, if they existed, are er had then failed to attend; and this is the first question. entitled to the aid of this House to give effect to their The Committee of Elections have admiited, (and no one lawful votes. This House, being the final and conclusive could withhold the admission,) that the direction, to open judge of the election, in all its parts, is not bound, con- the polls by ten o'clock, implies an authority in the sheriff irary to the policy of the election laws of the States, to to open them before. It is the necessary effect of the follow the regulations prescribed, with so much greater terms used. The Legislature meant to prescribe a minirigor than any court of law or equity would do, as to dis-mum time for keeping the polls open, and not to prohibit appoint a clear right by giving destructive effect to a form a longer time. They were to be opened by ten o'clock, that was intended to secure it. Where there is an ap- and to be kept open until at least one hour before sunset. parent, though not an exact conformity in any point, to It was within the discretion of the sheriff to open them ihe regulations of the State law, the utmost legal effect before ten, and to keep them open until sunset, or alter. that the irregularity should produce upon the votes re. So clear is this interpretation, ibat the committee bave ceived, is that of drawing them into question, until their been compelled to say that they might consider the votes validity is shown, which has been done here. If, in any before ten o'clock as legally taken, if received by the case, it is impossible to estimate the effect which the judges appointed by the court. But while they say this, irregularity has produced, that may be a reason for set. ihey deny the authority of the sheriff to appoint any perting the election aside, but it cannot be for giving a seat sons to act in the place of those appointed by the court in this House to the candidate of a minority of the quali- before that hour; and they attempt to justify the distincfied voters.

tion, first, by the position that, until they have failed to These, sir, are the sentiments I have thought it proper attend, the sheriff cannot appoint oihers, and that they to state to the House in regard to the effect of irregu- cannot be said to have failed to attend until the hour larities in the execution of election laws. I will now sub-pointed out by law for opening the poll shall have arrived;” mit to the House some reasons for the opinion I entertain, and secondly, by a suggestion of the great mischiefs that that there was no irregularity whatever in the Garrard might arise by authorizing the sheriff'io supersede the apcounty election.

pointment of the court by surprise. The whole view of The constitution of Kentucky provides that, "in all the committee is, in my opinion, without justification or elections for representatives, every free male citizen, color of support. (negroes, mulattoes, and Indians excepted,) who, at the The act points out no particular hour for opening the time being, hath attained to the age of twenty-one years, polls, but names an hour which the sheriff cannot suffer and resided in the State two years, or in the county or io pass without having opened them. llis authority, by town in which he offers to vote, one year next preceding the law, is as absolute to open them before that hour, as it the election, shall enjoy the right of an elector; but no is to keep them open until sunset, or to advertise the elecperson sball be entitled to vote, except in the county ortion for a longer time than a month. He is bound to contown in which he may actually reside at the time of the sult no pleasure but his own; and in the section which election.” I: also provides that representatives shall be gives him this uncontrolled power, the judges appointed chosen on the first Monday in August of each year, but by the court are not mentioned, nor their presence or abthe presiding officers of the several elections shall con- sence referred to. Their absence, therefore, is no rem tinue the same for three days, at the request of any one straint upon his authority. It is an error, then, to say of the candidates."

H. OF R.]

Kentucky Contested Election.

(Mar, 1834.

say so.

that the judges have not failed to attend until the hour Grant had continued to act, and attend to receiving the appointed for opening the polls, for there is no such hour. votes until the election was completed, and a fair state.

Again, sir: if the appointed judges fail to attend imme- ment made of the whole amount thereof. But Grant and diately before the time of opening the election, be that Wheeler could not both be legal judges of the election." time when it may, the authority of the sheriff to substitute By what reasoning the continuance of Grant as a judge, others is complete. In the section which gives him this after the hour of ten, can be made to ure the illegality authority, the hour by which the election must be opened of his appointment before, if it really was illegal, I am is not mentioned; nor the sheriff's authority to open it re unable to comprehend. The suggestion would seem to ferred to. His authority is, therefore, in no way depend belong to a state of mind not entirely clear upon the ent upon the hour.

point of illegality. If Grant was not duly appointed when By one section of the act, then, the sheriff has an abso- he was appointed, it would rather seem that the longer he lute power to appoint judges, if those appointed by the continued in office the greater would be the illegality, couri do not attend immediately before the polls are open. But, sir, the position that Grant and Wheeler could not ed; and, by another, he has an absolute power to open both be legal judges of the election is not correct in itthe polls at any time he thinks fit, before ten o'clock.' Itself, any more than it is a reason for holding that if Grant offends against the plainest construction of the act, conse. alone had continued to be a judge, it would bave made quently, to take away from the sheriff the uncontrolled him, though illegally appointed, a valid judge from the power of opening the polls at an earlier hour than ten, beginning. Grant and wheeler could both be legal which the second section has given him, by making it de-judges of the election at different stages of it, and so, in pendent on the presence of the judges, whose non-attend my apprehension, they were. Wheeler was one of the ance at any time of opening the polls he is by the first sec- judges appointed by the county court, and whose aption expressly empowered to remedy. The plain mean, pointment extended throughout the whole year. He did ing of the whole is, that the sheriff may open the polls be- not cease to be a judge of election, because on one occafore ten, if he sees fit; and if the julges do not atiend, he sion he made default in attending. The act supposes, and may appoint others. If the law had intended to postpone intends, that his authority shall continue, because provision the election until ten, unless the judges should previously is made for his failure to attend "immediately preceding appear, it is impossible to imagine a reason why it did not every election.” If he should attend on the first day, and

And where, sir, is the great mischief of confiding fail to attend on the second, the power of the sheriff is such a power to the highest executive officer of the competent, by the clear spirit of the act, if not by its letcounty-a man, it is to be presumed, possessing, and enti- ter, to supply his place, as much as if he had not allend. tled to the confidence of the people, having a common in- ed at all; and so if he dies, becomes incapable, or insists terest with them, living among them, and bound not only upon retiring in the course of the election. There is, by oath of office, but by the highest personal interest, to indeed, no remedy for such a miscbief, except in the do equal justice in such a matter to all parties? What sheriff's power. In like manner, if the appointed judge propriety is there in treating the sheriff of the county as makes default on the first day, or at the first hour of the an officer to be justly suspected of partiality, and, upon election, and the substituted judge, after commencing the such an hypothesis, to take from him the power which the election, shall himself die, become incapable, or refuse to law has given to him of enlarging the time of election, by proceed, as the original authority of the judge appointed which the people cannot possibly be injured? What by the court continues in force, he may, by virtue of that !nischief can result froin his even purposely supplanting authority, appear, and lawfully proceed with the election. the justices of the county court by his own nominees? The true extent of the sheriff's power may be known They must be justices also, and duly sworn; and if they from its object, which is to supply a judge as far as the receive illegal, or reject legal votes, the poll-books are absence of the appointed judge may require. It is supthe record by which they will be confronted, and their in- plementary, and it should be so interpreted as to give justice exposed and remedied. It is sufficient to say that validity to the sheriff's appointment whenever the annual the law manifests no such suspicion of sheriffs generally, judge is absent, and to give authority to that judge when. and that in the present case the report of the committee ever he exercises the office. Why, sir, should a strict does not suggest the smallest ground for it. In every case, interpretation be adopted to defeat an election, when in if the appointed judges will but take the precaution of be- any event the people will have a qualified judge appoint. ing at the place of election in due season, it will prove a ed by the court, or, in bis default, by the sheriff. Instances sinple and effectual remedy for the worst designs which of more liberal interpretation are frequent in the history the sheriff can possibly entertain.

of the construction of statutes. The objection made upon But try a little further the proposition that, unless the this floor, and also by the committee in their report, that judges attend before ten, the sheriff cannot open the the judge who begins an election must conclude it, be. polls. Suppose they are both dead; even this, according cause he must, according to the act, "attend to receiving to the views of the committee, will not justify the appoint- the votes until the election is completed, and a fair state ment of o: hier judges before ten. They, certainly, in that ment make of the whole amount thereof," admits of an event, cannot attend before ten, and it is as certain that they easy ans The act is here describing the general cannot fail to attend at ten, until ten arrives. Suppose they duty of the judges, and not the particular duty of one and are sick, and cannot come; the difficulty is precisely the the same judge. By the interpretation of the committee,

Suppose there is a positive refusal to attend. In the death or sickness of one judge, would defeat the this case, also, the sheriff must wait till teo, if it be true, whole election. By the true interpretation of the act, as the commiitee suppose, that the sheriff can appoint the judge who begins, and the judge who concludes, do only on failure to attend, and that there is no failure until together attend to receiving the votes until the election is that hour. In fine, sir, neither refusal, sickness, nor completed, each performing his duty completely, as far death will, according to the committee's view of the act, as die goes; and “the fair statement of the whole justify an appointment of other judges by the sheriff, and, amount" inay as well be made by the clerk, under the inconsequently, an opening of the polls before the hour spection of a judge who has been there but part of the of ten. Such an interpretation of the act may suit the time, as hy one who has attended the whole time. It is present case, but can bardly suit any other.

a statement mechanically made from the poll-books. The committee do not, themselves, appear to be satis- Upon this part of the case, sir, I do then confidently fied with it; for they proceed to say, that “they might not submit to the House, that, whether we resort to those have rejected the votes taken before the hour of ten, il principles by which a public authority, in some respects



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Mar, 1834.]

Kentucky Contested Election.

(H. OF R.

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defective, is regarded as valid in favor of innocent third Finally, Mr. Speaker, let it not be forgotten that the persons, or we go to the act of Kentucky, interpreting it principles for which I have contended, and the answers by its spirit as well as its terms, as all statutes should be, proceeding from them to the different objections of the the House must come to the conclusion that the votes of committee and its members on this floor, have for their qualified yoters, received while Moses Grant acted as one object to sustain the most precious right that is known to of the judges, have been erroneously rejected by the freemen--a right that has been exercised by the qualified committee, and ought to be counted for the respective voters of Garrard county, without a suspicion of error in parties in whose favor they were given. It is not unwor- either the manner or the substance of the election, and thy of remark, that for this alleged defect of appoint where.the.judges and the sheriff have obtained from the ment, thirty-five legal votes have been rejected by the committee the praise of motives not to be impugned, and committee in a case in which it has been made manifest of respectability and integrity which it has gratified them that the officers who conducted the election were high- to declare. The effort on the other hand has tended to minded, honorable men-that not an intentional fault in defeat this right, and to give a triumph to a minority, by the course of the election is imputed to them-that all a course of construction exceeding, in literal adherence their acts have been scrutinized, to the satisfaction of all to forms and ceremonies, the example of any court of law parties, without leaving a reproach upon any one of them, whatever. and that the opening of the polls before ten, and the con- One word, sir, in regard to the students of theology at sequent appointment of Moses Grant, were at the instance Danville, and I will conclude. The committee adopted of the people, and for the accommodation of the people, the rule, that “the residence of young men from other and to allay an apprehension from the existence of cholera States and counties at schools, academies, or colleges, as in the same place in the two preceding months.

scholars or students, was not such a residence as entitled The absence of sheriff Kennedy on the second day them to the right of suffrage in the county where they presents the remaining question. Here, also, it is to be were for the time being;" and they applied the rule to remarked, sir, that an absence, agreed to by the judges, the students of theology at Centre College, in Mercer and required by an indispensable domestic duty, which county. These rejected students were one and all of no man will say the sheriff could have disregarded, and them above the age of twenty-one. In the language of his attention to which produced no one imaginable incon. one of the witnesses, they were their own masters, had venience, is made a ground by the committee for reject. come to college on their own means, or on means furing forty-five unquestionable votes; and no phrase in the nished by others than their parents, and were preparing law can be pointed out to give color to such a proceed for the ministry, to go, after their studies should be coming, except that which prescribes that “the persons pleted, where Providence might seem to direct." They entitled to suffrage shall, in presence of the said judges were detached by their actual independent residence, and sheriff, vote personally and publicly viva voce." The and by their preparation for the ministry, from the parensheriff has not authority to receive or reject a single vote. tal domicil. They had embarked for themselves in their On this head the law is clear. A difference of opinion own self-denying vocation. Their case stands distinguishin the judges does not make him the umpire. His duty ed from that of students in a condition of pupilage at is to open and to close the polls; and the only legal effect seminaries for general education. They had performed of his presence during the election, is, that if à voter is militia duty, and worked on the roads as citizens of unknown to both the judges, and known to the sheriff, Mercer county. One of them had not made his father's he may, perhaps, though by no means necessarily, be house his permanent home for the last seven years. excused from making oath to his age and residence. If Another, whose father was dead, but whose mother was unknown to all, he must be sworn. The sheriff' is, un- resident in Jefferson county, had for two years resided doubtedly, presumed to be present, not to take part in in Mercer county as a student of the college, and for two the election, but to preserve the peace, as well as to open years before had worked at the printing business in and close the polls; but at no time after the polls are Louisville. He had no intention of ever living in Jefferopened, and before they are closed, is his presence essen- son county again; and, when he went there in vacation to tial. The clause in the law has an entirely different ob- see bis mother, it was only as a visiter. All of them had ject from that attributed to it. It was certainly not meant resided two years in the State, or one in the county of to require the presence of the judges, for they, by a pre- Mercer, and they actually resided in that county when vious clause, are expressly required to attend to the re- their vote was offered and received. The committee ceiving of the votes. It was not meant, then, to require have truly said that they could not be entitled to vote the presence of the sherift; for judges and sheriff are in the counties where their fathers respectively resided, spoken of together. The object, and the only object, of and also in the county in which the college is situated.” the clause was to secure public and personal viva voce Nothing can be more clear. They never asserted these voting. “The persons entitled to suffrage shall, in the inconsistent rights. The committee have also said that presence of the judges and sheriff, vote personally and " they were not in such a situation as would authorize publicly viva voce.The action of the sentence is upon them to select in which of two counties they would exerthe vote, and not upon the presence of the officer. If the cise their elective franchise.” This is true, also; that is vote is publicly and personally given viva voce, the whole to say, they could not vote in either of two counties, as object of this clause is attained. If the law required the they pleased; nor did they claim the right. The comsheriff as well as the judges to receive and judge the mittee further say, that “if any of them had been at their votes, a different case would be presented. But the family residence they would unquestionably have voted, sheriff has nothing to do with the votes, not even to cry and the committee can find no principle or authority them; that ceremony, though it seems common at elections which would have warranted their rejection.” If this in Kentucky, not being prescribed by the law.

were also true, (which the committee cannot possibly If, however, the sheriff is one of the tribunal which know, for no one can tell what the students would have conducts the election, and has a voice in receiving and unquestionably done had they been at their family resirejecting votes in common with his colleagues, the objec. dence,) to what purpose is it true? They were not at tion to votes received during his absence admits of the the family residence, and did not vote there, but voted conslusive answer, that, being a judicial body, and the at their actual residence. If their constructive residence law not directing the contrary, a majority was sufficient was as the committee suppose, it did not in the slightest to constitute the court, so that the absence of any one of degree affect their right to vote in Mercer. The comthe three was immaterial.

mittee have, in my judgment, mistaken the meaning of Vos. X. --302

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