H. OF R.] Kentucky Election. [MAY 20, 1834 vote Mr. Letcher was clearly entitled, which as clearly tificate. If no certificate is given, then the majority entitled him to a certificate of his election. A very brief votes does entitle the person to whom they are given t examination of the law will show that the conduct of Al-his seat. Mr. Letcher should, then, in my opinion, b fred Hocker was illegal and unjustifiable. considered in this trial and discussion as in possession o The duties of the sheriff are very clearly defined by his seat, and Mr. Moore should be held to prove that the the statute which I have referred to. There is no un-majority of legal votes was given to him, and not to Mr certainty in the language employed, nor can there be any Letcher. This he should do by clear and satisfactory doubt as to the trust confided. Their duty is, "by faith-evidence. ed." ful comparison and addition, to ascertain the person elect- This appears to be the obvious course which should be Having ascertained the person elected, "they pursued. This put the parties in the position in which shall make out a certificate of the election of the person the electors of the district have placed them. Justice to in their district, which shall be signed by all the sheriffs Mr. Letcher, and a due regard to his rights, appear to of the district." These are their defined duties. Beyond require that this should be done. He is the person who these duties, no power is conferred by the law. They received the majority of votes. This is evidence, in the cannot inquire into and decide upon the illegality of the first instance, that all who voted were legally qualified votes received. They are to ascertain who is elected, electors. It appears by the poll books, that Mr. Letcher by comparing and adding up all the votes actually re-had a majority of forty-nine votes. ceived, and not by purging the polls, as if trying a con- I will now come to the consideration of the question tested election. No such duty is assigned to them; no presented by the amendment I have offered. The genesuch power is conferred upon them. The power is, by ral inquiry will be, was the majority of the committee the constitution, reserved for another tribunal. They right in rejecting from the Garrard poll fifty-four votes, are to ascertain who is elected. How they are to ascer-which were given to Mr. Letcher, and sixteen which tain this, is clearly set forth in the law. The voice of the were given to Mr. Moore? Whether the majority was public will is placed in their custody. They are by law right or not, depends upon the constitution of the United commanded, at a specified time, to bear this evidence of States, and the constitution and laws of the State of Ken the public will to a particular place, and, in the manner tucky. directed by the law, to ascertain what that public will is. By the 4th section of the 1st article of the constitution Having performed these duties, their power is exhausted. of the United States, it is provided that "the times, places, These are the single and only objects of the trust. The and manner, of holding elections for Senators and Reprepoll books are placed in their hands for these purposes, sentatives, shall be prescribed in each State by the Legis. and for no other. If they fail to perform them, the ob- lature thereof; but the Congress may at any time, by law, ject of the trust is defeated. If the motives of Mr. Hock- make or alter such regulations, except as to the places er were upright, it strikes me that the remedy he applied of choosing Senators." was most singular. He alleged that something wrong By the 3d section of the 2d article of the constitution was connected with the Garrard poll; and, to correct of the State of Kentucky, it is provided that "represen this error, he withheld from the calculation the Lincoln poll, which was confessedly legal in all its parts. This, I think, was a most singular way to correct the error of which he complained. Let his motives be what they may, his conduct was altogether lawless. It admits of but little palliation or excuse. tatives shall be chosen on the first Monday of August in every year, but the presiding officers of the several elec tions shall continue the same for three days, at the request of any one of the candidates." It is known to all that representatives to Congress are elected at the same time every second year in that State. In my judgment, the majority of the votes entitled Mr. By a law of the State of Kentucky, it is made the duty Letcher to the certificate of election. The certificate, of the sheriff of the county, every year, at least one which was given for Mr. Moore, and forwarded to the month before the first Monday in August, to notify the Secretary of State, was not only irregular, but absolutely inhabitants of his county, by advertisement, put up at void. It was not signed by all the sheriffs. It appeared the court-house door, of the time and place of holding on the face of it, that all the votes given in the district the next election, and what offices are to be filled. It is were not compared and added up. It was proved that further provided that the sheriff, or other presiding offi the Lincoln poll was withheld from the computation, in cer, shall, on the day of every election, open the poll by fraud of the law, in fraud of the rights of the electors of ten o'clock in the morning, and continue the same open the district, and in fraud of the rights of Mr. Letcher. until at least one hour before sunset each day, for three The certificate was signed but by three out of the five days successively, if necessary, or if any one of the cansheriffs in the district. It is a principle of law that we didates request it. should presume that officers had done their duty, in ab- It is also provided that the county court shall, at their sence of proof to the contrary. But this presumption session next preceding the first Monday of August in cannot be made in favor of what is irregular on its face. every year, appoint two of their own body as judges of Much less can it be made in favor of that which is found the next election, and also a proper person to act as clerk, to have been done in open violation of law and public who shall continue in office for one year. In case the duty. Nor, in my opinion, does this certificate derive county court shall fail to appoint, or the persons ap any additional force from the fact that it was sent by the pointed shall fail to attend, or any of them, the sheriff sheriff to the Secretary of State, and that it has been shall, immediately preceding the election, appoint proper forwarded here. This does not cure the defects. This persons to act in their stead. The judges and clerk of gives it no additional authenticity. It was in the first in-the election, before they proceed to the execution of their stance void, and, in my judgment, is still void. I do not duty, shall take the oath prescribed by the constitution think that it entitled Mr. Moore to his seat, and I believe a large majority of the members of this House entertain the same opinion. They shall attend to receiving the votes until the election is completed, and a fair statement made of the whole amount thereof; whereupon, the sheriff shall proclaim in The production of a legal certificate entitles the per- the court-yard the names of the several persons then son, in whose favor it is, to his seat, in the first instance: elected, and to what office. The persons entitled to suf in the absence of this certificate, the polls are as high, if frage shall, in presence of said judges and sheriff, vote not the highest evidence of the person elected in the first personally and publicly, viva voce. Unless the sheriff, or instance, subject, however, to be impeached. The ma- one of the judges, shall know that the person offering to jority of votes actually given entitles the person to a cer- vote is entitled to vote, under the constitution, the clerk shall administer an oath or affirmation to such person, so as to remove the doubts of the sheriff or judge. The foregoing are substantially the provisions of the constitution and law, which are thought to bear upon the question which I am about to discuss. [H. OF R. and not to destroy or restrict it. It did not enter into the minds of the legislators, that they were abridging the time. Their object was to afford a full opportunity to all the electors to vote. This was the object of the provisions in the constitution and the law. We ought not to put such a construction upon them as will, in any degree, defeat this design. The right of suffrage is not derived from the law, but from the constitution. The county court did appoint two persons of their own body judges, and a proper person to act as clerk of the election; one of the persons appointed declined serving, he having become a candidate for office. The It is not proved that the election was opened at so early sheriff, on the morning of election, attended at the place an hour for any fraudulent purpose. The hour was not for holding the election, and appointed a person as judge, so early as of itself to imply an improper object. On to act instead of him who had declined serving. Mr. the contrary, it is proved that the election was opened at Wheeler, not being there in attendance, who was the nine o'clock, to enable the people to vote and go home. other person appointed by the court, the sheriff also ap-It is proved that the cholera had raged at that place to an pointed Moses Grant to act in his stead. It was then alarming extent. It was feared that, if crowds should about nine o'clock. The sheriff then opened the elec-assemble, it might reproduce it. To avoid this, the tion. The judges and clerk then appointed, having first election was opened early. The object was to afford a taken the oath prescribed by the constitution, proceeded full and fair opportunity to all to vote; and thus preserve to receive votes and record the same. They thus pro- the people, as far as possible, from the dangers of disease ceeded until about ten o'clock, when Mr. Wheeler, the and pestilence. In my judgment, the conduct of the sherperson appointed by the court, appeared. He was also iff was laudable. He did not abuse the discretion consworn and took his seat, and Moses Grant retired. It fided to him. He exercised it lawfully. He was impeappears that, at this time, twenty-two votes had been riously called on, by the circumstances of the case, to give given to Letcher, and three to Moore. This is the ir-all the time he could, by the constitution and laws, to the regularity on account of which part of these votes were people to exercise this high and important right. His stricken off by the majority. discretion was used to accommodate the people and to The first question which presents itself is, had the sher-preserve their health. This case shows the wisdom of iff a right by law to open the polls before ten o'clock? I entertain the opinion that he had. the provision in the constitution and laws, in giving to the electors those days on which to vote. The sheriff would It will be recollected that, by the constitution of the have been highly censurable, if he had refused or neState, the "election is to be held on the first Monday in glected to open the election at so early an hour, when August, and to be continued for three days, at the request called upon by such a state of things as existed at Lanof any of the candidates." The people of that State caster, at the late election. Even in the absence of law, have, by the constitution, reserved those days for this pur- his conduct having been proved to be fair and upright, pose. The constitution gives the three entire days, not his motives wholly to accommodate the people, and all fractions of days. This ought to be borne in mind as we the votes given, with one or two exceptions, being legal, proceed in this examination and discussion. This provi- his opening the polls at an early hour would be justified sion is clear and free from all doubt. What, then, is from necessity; it was beneficial to the people, and did meant by the terms used, "that the sheriff, or other pre-injury to none. siding officer, shall open the election by ten o'clock in the If the foregoing propositions be true, and that they morning, and keep it open until at least one hour before are I do not entertain a doubt, the contingency had hapsunset?" Is it that the election shall be opened pre-pened which legally called in requisition the power of cisely at ten o'clock, and that it shall be closed precisely the sheriff to appoint a judge in place of Wheeler, who at one hour before sunset on each day? Or, is it not that was not in attendance. The judges are bound to be in the election shall be opened not later than ten in the readiness as early as the sheriff had a right to open the morning, and shall not be closed earlier than one hour election; if they are not, the sheriff may then appoint; it before sunset in the evening? I believe the latter to be is his duty to appoint; it is for the interest of the people the true meaning of the terms used. It is the plain read- that he should appoint, if there are people there desiring by ing of the law. By ten o'clock, means not later than to vote. If he goes to open the polls, and finds that a ten. This is its obvious meaning and plain import, and judge is absent, he cannot open the election until he is so generally used and universally understood. The does appoint. If the people come to the election ground provision that the election shall be kept open until at and find the election open, the sheriff of the county least one hour before sunset, strengthens this construc-present, and the other officers, they may vote; and if it tion. The law gives the least portion of time which shall should turn out to have been a little before ten o'clock, be allowed to voters. It is mandatory upon the officers, I cannot bring my mind to the conclusion that this would that all the time between ten in the forenoon and one vitiate the vote of an innocent and qualified elector. This hour before sunset shall be allowed to the people to appears to me to be too obvious to require any further vote. It is not designed by the law to prevent the sher-comment. I do not see what effect Grant's retiring, and iff from opening the election before ten o'clock, nor is Wheeler's taking the seat, can have on the votes received he prohibited from keeping it open later than one hour by Grant. If the votes received by Grant were good as before sunset. He is to keep it open as late as an hour received, and when received, they could not be vitiated before sunset, and he is to open it as early as ten in the by his after conduct, or the conduct of any other. If morning. He has no discretion left him as to closing the the votes were good when given, they cannot but be election earlier than an hour before sunset. He has a good now. Wheeler was appointed by the court for one discretion as to keeping it open after that hour, and votes year. He appeared, by virtue of this appointment, and received at sunset, or even after it, would be good, so he was qualified, and proceeded to do the duties assigned has no discretion after ten o'clock. He may delay until him. This was all right, and cannot affect, and does not that hour, but not later. This is the obvious intent of the affect, that which was done before he came there. I be law. He must not postpone the opening the election un-lieve that the sheriff had power to appoint Grant as he til a later point of time. He is not prohibited from opening the election at an earlier hour. There is nothing in the law from which this prohibition can be implied. The law comes in aid of the constitutional right of suffrage, did, and when he did: and that Wheeler taking the seat, and Grant withdrawing, does not, in any degree, tend to vitiate the votes of legally qualified electors. On the second day after the election had been opened, H. OF R.] Kentucky Election. [MAY 20, 1834 These and some votes received, the sheriff, after having been qualification of the voter; nor does it create an obligation twice sent for, on account of the sudden and extreme on the sheriff to be present at the time of the election. illness of his wife, who died soon after the election, left It is made the duty of the sheriff to open the polls on the polls with the consent of the judges. He had no each morning of the election, and to close them on the regularly appointed deputy present. He requested a evening of each day. young man of respectability, who was present, to attend It is also his duty to proclaim, at the close of the elec with the judges; and, with their consent, he did attend tion, the persons elected, and to what offices. He is a for some time, and then gave place to another gentleman, high peace officer, and, as such, his presence might be also of high respectability, to attend. The judges agreed necessary to preserve order, so that the election might be that he should attend with him, and he did so, until the conducted with good order, and that an opportunity regularly appointed deputy appeared, and attended to might be afforded to all the electors to vote, without disthe election. During this temporary absence of the turbance or tumult. He is also a public man, whose sheriff, thirty-two votes were given for Mr. Letcher, and authority would be acknowledged and respected, and thirteen for Mr. Moore. The majority of the committee supposed to be well acquainted in the county, and able rejected these votes. I do not think that these votes to communicate information to the judges as to the qualshould be stricken off. ifications of those offering to vote. These are duties On turning to the law, it will be seen that the right of which are required of him by the law. His presence the sheriff to judge as to the reception or rejection of appears to be necessary for these purposes; and hence it votes is not very clearly asserted. I am inclined to the is said that the votes "shall be given in the presence of opinion that he has no such power; if he has, it is cer- the judges and sheriff." It ought to be presumed that tainly not very precisely stated. The enactment is, "that his presence was required for the purpose of discharging the judges shall attend to receiving the votes until the the duties clearly enjoined on him by the law. election is completed, and a fair statement made of the are duties which the law manifestly imposes upon him. whole amount thereof; whereupon, the sheriff shall pro- It is inferred that he will attend to perform them. We claim, in the court-yard, the names of the several persons ought not and cannot legally attach higher importance then elected, and to what office." This would appear to to his presence, during the election, than the law has make it the duty of the judges to receive the votes. It attached. The votes taken in the absence of the sheriff does make it their duty. The judges are to receive the are all proved (with, I believe, one exception) to have votes, and to make out a statement of the amount thereof. been given by qualified electors. The sheriff, if he had If it is made the duty of the judges to receive the votes, been there, would have had no duty to perform. No they must necessarily judge of the rights and qualifica- question was made as to the right of any one to vote. All tions of the voters. This latter duty is necessarily em- who voted would no doubt have been permitted to vote braced in the former. It is made the positive duty of the if the sheriff had been there. It would, indeed, be a judges to attend to receiving the votes; they are the most rigorous rule of law that would now adjudge that persons designated by law to perform this trust; to them those votes, thus taken, should be stricken off. I trust is given all the power necessary to perform it. In this no such rule will be applied by this House. I then entergrant of power and designation of persons the sheriff is tain the opinion that the presence of the sheriff was prenot noticed; he appears to have been intentionally omit-sumed, for it is not enjoined, to perform those duties ted. It is the duty of the judges to make out a statement which are designated by the law as pertaining to him by of the amount of the votes. Here, again, the sheriff is virtue of his office. In my judgment, it is the exclusive omitted. It appears reasonable that the persons who re-duty of the judges to attend to receiving the votes. This ceive and record the votes should make out the statement grant of power is clear, explicit, and positive. The right of the amount thereof; hence we find this duty assigned to judge of and determine upon the rights of those offerto the judges. After the votes are all received by the ing to vote is most clearly intrusted to the judges by judges, and after the statement is made out by them, virtue of this part of the law. The terms used naturally then the duty of the sheriff begins. The law then says: confer this power and impose this duty upon them. "Whereupon the sheriff shall proclaim, in the court-yard, sheriff is not included in this grant of power and desig the persons then elected, and to what office." Here, nation of persons and duties, and his presence is not then, we have, not only in the same act and in the same essential to the legality or validity of votes. This is my section, but in the same sentence, these several duties opinion. thus distributed. The distinction in the grant of power But suppose, Mr. Speaker, that I am in error in the is plain and obvious. views I have taken, and the opinions I have advanced, It is provided by the constitution that members of the then a very important question is presented to the con General Assembly, and all officers, Executive and Judi-sideration of this House. cial, before they enter upon the execution of their re-ities, on the part of the officers of the election, to affect How far ought those irregular spective offices, shall take the oath which is prescribed the rights of legally qualified voters? This I deem a therein. The judges and clerk are required by the law, question of the highest importance to the people of this before they act as such at the election, to take this oath, country. The right of suffrage, which is a great consti although the judges may have taken it before as justices tutional right, a right which lies at the foundation of our of the peace. The law requiring that this oath shall be Government, a right which is above price in the estimation taken by the judges, (and not by the sheriff,) although of the people of this country, is deeply interested in the they may have taken the same oath before that the sheriff decision of this question. I deem it of the greatest mo has taken, is a circumstance not without weight in this ment that this right of suffrage, which is to be exercised matter. It is provided that "The persons entitled to by the people themselves, should be preserved in purity, suffrage shall, in the presence of the said judges and and should be guarded by wisdom and integrity. If there sheriff, vote personally and publicly, viva voce.' This is is any one right which is more valuable than all other directory merely as to the manner in which the elector civil or political rights, it is this right of suffrage; it is the shall vote. It is not intended that this clause should con-authority and voice of the people themselves. If this right fer power or impose obligation upon the sheriff. The is usurped or annihilated, the sovereignty of the people is sheriff could not draw any power from this provision. It impaired and the constitution violated. The is confined to the manner in which the vote shall be In discussing this question I shall not detain the House given, and is only directory as to this; and, as I said be- long; all I say shall be direct to the question presented. fore, does not give the sheriff power to decide on the The right of the citizens to elect their Representatives to MAY 21, 1834.] Kentucky Election. [H. OF R. Congress, I have already said, is a great constitutional this act will I look, to this voice will I listen; and never, right. The law of the State does not give this right. It no, sir, never, will I permit either the mistakes, negliis a right paramount to the laws of the State. It is a right gence, or fraud, of inferior officers, to alter or annihilate which, being secured by the constitution of the United this act of the voter, no matter how humble and retired States and the constitution of the State of Kentucky, is his situation in life may he. above legislative authority. The laws of the State did The right of suffrage in the hands of the people is the not grant or create it, and, therefore, cannot impair or all-controlling power in this Government. If this right is take it away, either by direct or indirect legislation. This to be lost in the mistakes, negligence, or fraud of officers, ought to be borne in mind in our application of the law what will the consequence be? You at once take off all to the facts in this case. The law of the State only pre-restraint upon ignorance and negligence, and give full scribes forms, and establishes guards, the more effectually license to corruption. If you do this, you at once uproot to secure this right, and its uninterrupted enjoyment, to and overturn all their constitutional safe-guards which the people. The people of the State of Kentucky do not can alone secure the people in the enjoyment of their choose the judges of the election. They are appointed right of suffrage. How do individuals now find their way by the county court. The people have no direct agency into this House? The old-fashioned and common way in their selection. The people go, at the time fixed, to with us is by getting a majority or plurality of votes. the place of holding their election, and find the sheriff of This is the way which I prefer. But, establish the prin the county, a known public officer, assisted by two judges, ciple contended for, and what rule do you then adopt? and a clerk, either appointed by the court or by the Members will then find their way here, not by the legiti sheriff, in the discharge of their duties as officers of the mate call of the people, but through the ignorance or election. I ask, are they to look further? Is it their treachery of some petty officer. Is not this putting the duty to look further? Is it incumbent on them to look to case fairly? I do conceive that it is nothing short of this. the time of day, or to the manner or time in which the Whenever you establish, as a governing principle, that officers were appointed? I cannot bring my mind to the the errors and omissions of officers shall control the acts conclusion that it is at all incumbent on them to look into and voice of the voters, you do in effect establish the the title of the officers. I think I have been successful principle above stated. Men would then find their way in showing that Grant, at least, came into office under into office, not only without the votes of the people, but color of authority, and that he was an officer de facto, if against the votes of the people. When the people have not de jure. He was called to the office by the person spoken and made their choice, their voice is to be disohaving the power to appoint, and was sworn as an officer beyed, and their choice rejected. The people of this of the election before he acted as such. I deny, most country never intended that the elective franchise should positively, that it is or ought to be incumbent on the be made subject to this want of form or abuse on the part citizens of Kentucky to see that all the forms of law, in of county or township officers. The great question, as regard to these preliminary matters, have been observed I have before stated, ought to be, was the election full, to the letter. The people do not hold this paramount free, and fair? Had those who voted a right to vote, and rght-this right which is the foundation of all law, and did they vote in time and manner as directed by law on without which there cannot be any Government in this their parts? If they did, I would give effect to it. The country-by a tenure so frail and precarious. It never right of suffrage is too precious to be subject to such rewas intended that the freemen of Kentucky should be finements and technicalities. This is the only rule which perilled in their right of suffrage, either by the negligence, will preserve our republican form of Government in puignorance, or fraud of petty officers. If they even thought rity. The majority must rule. The person who has the that the officers were not proceeding with regularity, they most legal votes is elected. have no power to correct or remedy it. Officers geneThe fact that the people themselves, at the time, rally feel the dignity of the authority with which they are thought those irregularities, as far as they had been apclothed, however small it may be. They would not, prized of them, of no importance, has great influence probably, change their course, if requested so to do. upon my mind. Two judges, publicly appointed in the Thas the people have no alternative left but to vote or to way pointed out by law, presided, assisted by a legally go home without voting. They might, to be sure, go constituted clerk, and attended by the high sheriff of the home without voting, but this would be defeating an elec- county. The people of all parties, and all the candidates, tion altogether, and would totally deprive the people of thought, at the time, all was right. The election was the right of suffrage. public, and the citizens, who were the substantial agents Sir, the great inquiry ought in all cases to be, was the at the election, carried it on without any distrust that it election free, full, and fair, on the part of the voters? was wrong. They did not entertain a doubt, at the time, If it was free, full, and fair, I would take it as the ex-of its validity; no objection was made by any one; the pression of the public will-as the voice of the people le- people voted for the candidate of their choice; they gt mately made known, and which I hope I will never dis-believed that they were legally and efficiently exercisregard. This will is too dear to freemen, too sacred to ing their rights; no murmur was heard for near two the American people, to be stifled or lost in form. weeks; no inconvenience was felt at the time. All had This will is the substance of the election-the form is but an opportunity to vote and did vote. I cannot now think be shadow. I go for the substance-1 go for the votes that all this, thus solemnly and deliberately done by the of freemen, regardless of mere form. I care not for the people, is to be set aside by the application of a rule rareshadow. This will of the people, as communicated by ly resorted to in criminal proceedings. I regard the their votes at the polls, is the essence of every election. opinion of the people. I take for granted that they have Yea, more, it is the election itself; and ought not, and some knowledge of the law and their rights. They did Cannot be controlled by mere form, without destroying not think that any injury or injustice was done them; nor Bur republican form of government. Who are these pet- do they think so now. They do not now complain; the tyofficers, that are worked up into such mighty impor- complaint comes from a candidate, against whom the matance? They do not make the election. They are but jority of the votes was given. I do not think those obstruments appointed by law merely to receive the suf-jections ought to prevail. They ought to be considered frages of the people. The great and paramount right as waived by the people, who are the real parties in this Bonsists in the act of voting. It is the voter who speaks. transaction. It is for the interest of the public, and the The voice and act are his, and to this act alone should we rights of the electors require, in my judgment, that they look, and by this voice alone should we be guided. To should be so considered. VOL. X--264 H. OF R.] Kentucky Election. [MAY 21, 1834. What Then, to conclude on this point, I do not think the ground of its being predicated only on illegality in a sep presence of the sheriff so material that the votes of arate election, without entering into an examination of legally qualified electors should be rejected because he the qualifications of the voters generally; and moved the was temporarily absent. I think that Grant was at least recommitment of the report to the Committee of Elecan officer de facto, and that his acts, as such, were most tions with instructions to receive evidence that the perclearly good. The law, with regard to the acts of de sons voting for either candidate were not entitled to vote fucto officers, is perfectly well settled. It is a rule that on the election. The vote being taken on this motion to is founded in justice, and has been approved of by the recommit, it was decided in the affirmative. Here, then, experience of ages. The rule is as old as our law books. is the principle decided which I contend for. The reThe rule is, that all the acts of such officer are good, so port of the committee was founded on irregularities on far as regards the rights of the public or third persons. the part of the officers or persons holding the election. The office is void as to himself only. This rule is well The committee had rejected votes, because that they had understood in Pennsylvania. Even when rights are di- not been received by the number of officers required by vested, through the agency of officers, this rule applies law, and because that those persons had not been sworn. with all its force. If that be so, why should it not be so This was their report, and for these reasons votes had here? The rights of no one are affected by allowing the been rejected. The committee had not extended their votes of these men. Mr. Moore has no right to complain. examination to the qualification of the electors. He ought not to come into office against the votes of the does the House do? people of the district. The votes which he attempts The report is recommitted, not generally, but with defi to strike off were all given by legally qualified voters. nite and particular instructions to receive evidence They voted against him. The electors have, in fact, that persons voting for either candidate were not entitled chosen Mr. Letcher. He is their choice; no one doubts to vote at the election." The recommitment was for it; he ought, therefore, to be their representative; they this single fact; this was all that the House wanted. The I regard their voice, and, as far my vote House thus determined to confine them to the single fact will go, I will give effect to it. I think the rules I have whether the voters were legally qualified. The House laid down are the only safe ones. I think they conform to refused to decide without this inquiry was first made. the great and fundamental principles upon which the This was considered the all-important question. It shows right of suffrage is founded. I think that they are the clearly that those irregularities were not sufficient to only rules which will promote and secure the high ends vitiate the election in the opinion of that Congress, and contemplated by the people themselves in framing their constitution; and that the one contended for by the majority of the committee completely nullifies the right of suffrage bave said so. let in the minority candidate. No principle can be more clearly asserted, nor can any decision be more directly in point. The committee afterwards reported to the House that evidence could not be procured, so as to enable the The majority of the committee have referred to some committee to investigate the qualifications of the elector decisions in cases of contested elections as sustaining the during the present Congress, and asked to be "dischar decision which they have made. I will answer one or ged from further investigation into the qualifications of the two of those cited. The first which I will notice, is the said electors." Finally, a new election was ordered. I case of Duncan McFarland vs. Samuel D. Purviance. plainly appears in the case, that, if the votes which were This case was from North Carolina. On the 29th of Feb. thus irregularly taken were rejected, Rufus Easton Those irregulari ruary, 1804, the Committee of Elections made their re- would have been entitled to his seat. port, which was referred to a Committee of the Whole ties were clearly made out, yet that Congress would no House, who, on the 6th of March, 1804, were, on motion, suffer this to be done. It appeared to be the opinion o discharged from the further consideration thereof, and members then, as it is mine now, that no individua the subject appears not to have been acted on again du- should be permitted to take his seat against the majorit I do not see how any ma ring that session of Congress. At the succeeding session of the votes of his district. of Congress, Duncan McFarland again presented his me- can ask, or expect to be permitted, to represent the pe morial, praying that the House would take into consider-ple, not only without, but against their voice; not onl ation and ultimately decide upon the subject-matter of when they have not chosen him, but when they have his memorial. This new memorial was referred to the fact chosen another to represent them. This, in m Committee of Elections, but it does not appear that any judgment, is any thing but republican in principle. report was ever made thereon. No decision was ever at variance with the genius of our free institutions. made in this case by Congress, and I am at a loss to know have said all I intended to say on this part of the cas of what authority it can be. It is of no authority, and I and at present will not remark upon those question cannot perceive for what purpose it was cited. which I propose, in the further progress of the case, t present to the consideration of the House. When Mr. BANKS had concluded Iti I will notice one other case, and, if I am not much mistaken, it will turn out that the majority were equally unfortunate in citing this case. If I understand the case, it Mr. JONES, chairman of the Committee of Electior is an authority directly against the position which they rose in reply, and went at length into a defence of th have taken, and one which fully sustains the principles report of the committee: citing precedents from anal for which I have been contending. It is the case of Rufus gous cases decided by Congress, and insisting that the Easton vs. John Scott, delegates of Missouri Territory. bore out the committee in the grounds they had taken. In this case, the committee decided that, as it was requi-| Mr. MARSHALL followed, in opposition to the com red by law that the election should be held by three mittee's report, and had proceeded some length in ex judges, who were to be sworn, and that two persons amining the precedents quoted by the committee, whe acted as judges, and were not sworn; that, as the law rehe gave way to quired that two persons should act as clerks, who should be sworn, and but one acted as clerk, who was not sworn; that the votes taken by those persons, as officers of the election, were illegal, and should be rejected. The committee also made other decisions which I need not take time to state. When this report was before a Committee of the Whole House, on the 3d of January, 1817, Mr. WEBSTER Opposed the report of the committee on the! Mr. C. ALLAN, who moved an adjournment; b withdrew the motion to allow opportunity for the refe ence of the Senate bills; after which, The House adjourned. WEDNESDAY, MAY 21, 1834. KENTUCKY CONTESTED ELECTION. |