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H. OF R.]
[May 20, 1834. Madison county, Kentucky, in favor of a restoration of the lis just as sure as that God rules the heavens, that no man, deposites. Mr. L. said that he had delayed presenting however great his power and popularity may be, can this memorial, in the hope that he would have received a stand, in this country, who plants his feet upon base list of the names of those who had signed it; he bad currency. He is but a short-sighted politician who does been informed that there were 1,200, and that they would not see that a stable currency and the public prosperity be sent to him. Not having received them, he presumed are indissolubly linked together, and that one cannot exthat they had been lost or miscarried; and he did not ist without the other. Who is so blind as not to see that feel at liberty to delay any longer presenting to the the blow aimed at the currency has fallen with all its force House the views of so respectable a portion of his con- upon the arm of industry? Sir, can that power stand that stituents on this all-important subject. He knew that is erected upon the ruins of the labor of the people? It the people of Madison were as intelligent, and under- was said, when we first assembled here, that the extent of stood their interests as well, as any portion of the people the evils of the late measures of the administration would of Kentucky. They were industrious, enterprising, and be confined to the cities; that their force would be spent essentially agricultural. They were exporters of stock, upon the unthrifty, improvident over-traders. and he believed exported a greater amount of live stock Sir, if an interior situation, freedom from debt, prufrom Kentucky than any county in the State. They dence, economy, the most exuberant bounties of nature, were, therefore, deeply interested in a sound currency: improved by the most untiring industry, could have preIn common with others in Kentucky, they had suffered vented the spread of the general mischief, then you would all the evils of a spurious paper currency. They had have beard no complaint from the county of Clark. But, just emerged from that state of things; they were enjoy- sir, there is no shield that can protect any portion of the ing a high state of prosperity; the farmers were realizing Union from a participation in the general calamity. fine prices for their produce, and their enterprising young Labor is the means by which the wants of man are men were engaged in taking it to market. They repre- supplied. When you strike down the standard of value, sent, sir, that this state of things had been broken in you paralyze the band of industry, and the mischief equal. upon, and they attribute it to the derangement of the cur- ly pervades the seaboard and the interior, the city and rency, by the removal of the deposites. He had great the country; the mansion and the cottage, the mountain confidence in the judgment of the people of Madison; and the valley. When I left home, in November, these they were practical men; they were neither owners of memorialists were in the enjoyment of uncommon prosbank stock, nor engaged in stock-jobbing; they had every perity; their industry was rewarded by high prices, thing to gain by having a sound currency, and every thing promptly paid, in good money. Their prospects are reto lose by a vicious one.
versed, and they now present themselves before ConMr. L. said he would remark, while he was up, that he gress, to complain that their constitution and laws have regretted not being here when the vote on the report of been violated, and the national currency threatened with the Committee of Ways and Means was taken, alihough destruction; that they already feel the effect of these unhis presence would not have changed the result. He wise and improvident measures, and see decay and ruin left Washington on business of an imperative nature, and associated with their further continuance. They therehis friends had informed him he could do so with safety, fore pray that you will pause in this downward march, as it was not their opinion the vote would be taken be- and re-establish the ascendency of the popular authority, fore his return. In addition to this, a friend from Geor- restore the constitution, cause the laws to be executed, gia, on the other side, gave him the promise that he and protect their industry from the paralysis of a debased would not vote for the previous question until his return, paper currency. and did not do so. As he wished to shun no responsi- [Numerous proceedings, memorials, &c. were then prebility, he took this occasion for saying that he would sented successively to the House, until its adjournment, bave voted, had he been present, with the minority on and appropriately referred, most of them on the all-enall the resolutions but that which proposed an investiga- grossing subject of the removal of the deposites and the tion of the United States Bank.
recharter of the Bank of the United States. ]
The SPEAKER then laid before the House a letter CLARK COUNTY (KY.) MEMORIAL.
from Cornelius W. LAWRENCE, of New York, resigning Mr. ALLAN, of Kentucky, rose and said: Mr. Speak- bis seat in the House, which was laid on the table. er, I ask leave to present to the House a memorial of the The House then adjourned. citizens of Clark county, in the State of Kentucky, on the subject of the removal of the deposites. This paper
TUESDAY, Max 20. comes from a county that has long, in many respects,
INDIAN AFFAIRS. been highly distinguished. That region, unsurpassed in natural fertility, has been beautified and enriched by a Indian Affairs, to which was referred so much of the Pres
Mr. HORACE EVERETT, from the Committee on tasteful and profitable
cultivation. Order, wisdom, indus- lident's message as relates to Indian Affairs, made a detry, and economy are the characteristics of the people. tailed report, accompanied by three bills, viz: In all of the innovations which, for a time, distracted the State of Kentucky, the people of Clark county stood of Indian Affairs;
1. To provide for the organization of the Department firm by the constitution. This paper comes from a pure fountain; it was dictated by neither office-holders nor tribes, and to preserve peace on the frontiers;
2. To regulate trade and intercourse with the Indian office-seekers, nor contrived by politicians for political effect. It comes directly from the people, containing territory, and for the security and protection of the emi
3. To provide for the establishment of the Western sound lessons of practical experience. Sir, it would be wise for those who are intoxicated with grant and other Indian tribes therein;
Which bills were severally read the first and second boundless authority, and who are now towering at the time, and committed to the Committee of the whole giddy heights of power, to pause and listen to the voice House on the state of the Union, and ten thousand copies of experience, of truth and reason. Those who have ac- lof the said report were then ordered, by unanimous concidentally gained the command, may, for a length of time, sent, to be printed for the use of the members. retain their posts, they have the wit not to touch the sources of public property; but when they so far depart
KENTUCKY ELECTION. from policy as to thrust their hands into the pockeis of Mr. JONES moved the following resolution, which was the people, the days of their elevation are numbered. It unanimously agreed to:
Resolred, That Robert P. Letcher and Thomas P. Mr. BRIGGS said he was surprised that there should Moore, Esquires, have leave to be heard at the bar of this be any objection to the reading of the minority report, House, in defence of their respective claims to a seat in the other having been just read. He called for the yeas this House.
and nays on the question, whether it should be read; Mr. J. called for the reading of the report of the ma- which having been ordered, jority of the Committee on Elections, which concludes Mr. FILLMORE inquired if it was not a matter of strict with the following resolutions:
right that the minority report should be at least once read Resolved, That Thomas P. Moore be declared entitled when called for. The majority report had been read to his seat as representative for the fifth congressional dis- twice. trict of Kentucky,
Mr. CAMBRELENG hoped that the objections would Resolved, That R. P. Letcher, in consideration of the be withdrawn. expenses to which he has been subjected, is entitled to The reading of the report was finally proceeded with, receive remuneration, at the rate of eight dollars per and having been partly gone through, the further reading diem, and a similar sum, as viaticum, for every twenty was dispensed with; after which, miles,
Mr. BANKS, of Pennsylvania, said: Mr. Speaker, I Objections having been made to the reading of the re- have offered this amendment for the purpose of bringing port, the House decided that the report should be read, to the consideration of the House the question presented ayes 69, noes 57. It was read through accordingly. by it. I thought that those questions being purely of a Whereupon,
judicial character, it was but right that the House should Mr. BANKS rose to inquire if it was in order to move settle them by a distinct and separate vote. I thought to refer this subject to a Committee of the Whole House. that, in presenting them in this way, they would be less
Mr. HUBBARD (Speaker pro tem.) replying in the complicated, and more easily understood. I also thought affirmative
that their being presented in this way, and thus placed Mr. BANKS moved that the reports and resolutions on our records, it would hereafter be more easily seen presented by the majority and minority of the Committee what we have done, and what principles we have settled. on Elections, on this case, should be referred to a Com- These are, sir, part of the considerations which induced mittee of the Whole House on the state of the Union. me to offer this amendment. I shall, hereafter, offer
Mr. JONES rose, not, he said, to make any comment other amendments so as to present to the House, in a on this motion, but to ask for the yeas and nays upon it. clear manner, those questions which, I think, necessarily
They were ordered; and the question thereon having arise, and on the decision of which the final result in this been put, it was decided in the negative: Yeas 84, nays 106. case mainly depends. So the House refused to commit the reports.
Before I proceed to the discussion of the questions preThe question then being on the adoption of the first sented for our consideration by the amendment I have ofresolution
fered, I will make a few remarks as to some preliminary Mr. BANKS moved the following amendment thereto: matters which are not at all foreign to these questions,
Strike out all after the word "resolved,” and insert, in my judgment. By the third section of an act of the “ That all the legal votes which were received in Lan- Legislature of the State of Kentucky, it is provided: caster, (Garrard county,) whilst Morris Grant, Esq. acted "That the sheriffs of the counties in each district shall, as one of the judges, on the first morning of the election on the fifteenth day after the commencement of the elecin August last, and those of a like character given on the tion, assemble at the places hereinafter designated in each second day of the election, in the casual absence of the of their respective districts, and then, by faithful comparisheriff, ought to be estimated in ascertaining the result son and addition, ascertain the person elected in their of the election."
districts.” It is also further provided by the fifth section Mr. B. rose to address the House, when he gave way to of the same act, that, “after having ascertained, as before
Mr. STEWART, who suggested that, as a large por- directed, the person elected, the sheriffs thereof shall tion of the documents had just been printed and laid on make out a certificate of the election of the person in their the table, it would be better to lay over this subject until district, which shall be signed by all the sheriffs of the to-morrow: and that, in the mean time, the House could district, and which shall be lodged with the sheriff of the dispose of two important bills on the Speaker's table-county wherein the polls are compared, and by him, tothe Cumberland road and Harbor bills.' Ile, therefore, gether with a copy of the polls, be transmitted to the Secmoved that the House proceed to the orders of the day. retary of State." Harrodsburg, in the county of Mercer,
Mr. JONES said that he must press his motion, and he was the place designated by the same act as the place at called on the House to decide it.
which the sheriff's were to meet, in this district, for the Mr. MARDIS inquired if the election case was not the purposes which I bave just stated. The sheriffs, or their special order of the day?
deputies, of the several counties composing this district, Mr. HUBBARD replied, it was, until 12 o'clock, after did meet at the time and place designated for said purwhich it was for the House to decide whether they would pose. When those officers were thus assembled, Alfred proceed to the other orders of the day.
Hocker, the deputy sheriff of Lincoln county, proposed Mr. GORDON inquired what they were?
that they should go into an examination of irregularities, Mr. HUBBARD replied that there were various bills whiclı, he alleged, existed in the polls of Garrard county, lying on the table, and other business, which had prece. This proposition was objected to, and overruled by the dence, unless the House should put them aside, for the other sheriff's then in attendance. Hocker, who appears purpose of going on with this case.
to have been the devoted friend of Mr. Moore, being disvir. WAYNE concurred in opinion that this was the satisfied with this decision, left the board of sheriffs, practice of the House.
taking with him the poll of Lincoln county, which he would The question being then taken on the motion of Mr. not permit to be counted, and which was not counted. STEWART, to proceed to the orders of the day, it was ne. The vote in Lincoln stood 650 for Letcher, and 501 for gatived. Whereupon,
Moore. By this conduct on the part of Hocker, Mr. Mr. DICKSON rose and said, that, as the report of the Letcher had not the benefit of the majority, which he bad majority had been read, he trusted that the House would in this county, of 149 votes over Mr. Moore. When this admit that it was only just the report of the minority vote was taken from Mr. Letcher, the majority was for ahould also be read. He called for the reading.
Mr. Moore. But giving this vote to Mr. Letcher, his Objections having been made
entire majority was 49 votes over Mr. Moore. To this
H. or R.)
[Mar 20, 1834.
vote Mr. Letcher was clearly entitled, which as clearly tificate. If no certificate is given, then the majority of entitled him to a certificate of his election. A very brief votes does entitle the person to whom they are given to examination of the law will show that the conduct of All his seat. Mr. Letcher should, then, in my opinion, be fred Hocker was illegal and unjustifiable.
considered in this trial and discussion as in possession of 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. ful comparison and addition, to ascertain the person elect- This appears to be the obvious course which should be ed.” 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 pull 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 Kenthe 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 Legisand 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 "representhis error, he withheld from the calculation the Lincoln tatives shall be chosen on the first Monday of August in poll, which was confessedly legal in all its parts. This, every year, but the presiding officers of the several elecI think, was a most singular way to correct the error of tions shall continue the same for three days, at the request which he complained. Let his motives be what they may, of any one of the candidates." bis conduct was altogether lawless. It admits of but little It is known to all that representatives to Congress are palliation or excuse.
elected at the same time every second year in that State, In my judgment, the majority of the votes entitleci Mr. By a law of the State of Kentucky, it is made the duly 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 apany 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 They shall attend to receiving the votes until the election a large majority of the members of this House entertain is completed, and a fair statement made of the whole the same opinion.
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 sufin the absence of this certificate, the polls are as bigh, 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 Mar 20, 1834.]
(H. OF R.
shall administer an oath or affirmation to such person, 50 and not to destroy or restrict it. It did not enter into as to remove the doubts of the sheriff or judge. the minds of the legislators, that they were abridging ihe
The foregoing are substantially the provisions of the time. Their object was to afford a full opportunity to all constitution and law, which are thought to bear upon the the electors to vote. This was the object of the provi. question which I am about to discuss.
sions in the constitution and the law. We ought not to The county court did appoint two persons of their put such a construction upon them as will, in any degree, own body judges, and a proper person to act as clerk of defeat this design. The right of suffrage is not derived the election; one of the persons appointed declined serv- from the law, but from the constitution. ing, be 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, bad the sher-preserve their health. This case shows the wisdom of iff a right by law to open the polls before ten o'clock? the provision in the constitution and laws, in giving to the I entertain the opinion that he had.
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, hare, 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 hapsunsetpis
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 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 be 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 Juties 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 ul a later point of time. He is not prohibited from open- did, and when he did; and that Wheeler taking the seat, ing the election at an earlier hour. There is nothing in and Grant withdrawing, does not, in any degree, tend to the law from which this prohibition can be implied. The vitiate the votes of legally qualified electors, law comes in aid of the constitutional right of suffrage, On the second day after the election had been opened,
H. OF R.)
[May 20, 1834.
and some viius 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 elecwith 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 is 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 stateil
. 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.
These election is completed, and a fair statement made of the are duties wbich 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 yote 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 must 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, esplicit, 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. The “Whereupon the sheriff'shall proclaim, in the court-yardi, sheriff is not included in this grant of power and desig. the persons then ælected, and to w!iat 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. How far ought those irregularcial, before they enter upon the execution of their re. ities, on the part of the officers of the election, to affect 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 constialthough the judges may have taken it before as justices tutional right, a right which lies at the foundation of our
The law requiring that tlfis cath 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. Ideem it of the greatest mohas taken, is a circumstance not without weight in this ment that this right of suffrage, which is to be exercised
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. 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
of the peace.