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H. OF R.]
(MAY 28, 1894. State of Pennsylvania, to the gentleman from South House to submit a resolution fixing ten o'clock, A. M. as Carolina, (Mr. PINCKNEY,] for the interest he had ex- the hour for the House of Representatives to assemble for pressed for the diffusion of intelligence among her citi. the residue of the session.
If that gentleman had reflected that the motion Objection having been madeto print had come from the State of Pennsylvania, he Mr. CHILTON moved a suspension of the rule, and might have spared himself some portion of his sympathy. called for the yeas and nays on his motion to suspend.
(Mr. PINCKNEY wished to explain. It was not Penn. The House refused to order them: Yeas 20, nays 102. sylvania alone which he wished 10 enlighten, but the Mr. CHILTON then withdrew his resolution, for the whole United States. He was not before aware that the purpose of modifying it; and the House resumed the conmotion to print had originated with a member from Penn- sideration of the reports on sylvania.) Mr. SUTHERLAND said it was not in order to debate
THE KENTUCKY ELECTION; the general question. He should not have risen, but The question pending being the resolution reported from the appeals which had been made in behalf of poor from the Committee of Elections, declaring Thomas P. Pennsylvania. The gentleman from South Carolina (Mr. Moore to be entitled to a seat in this House, from the fifth PINCKNEY] would do well to look at home. The people congressional district of Kentucky. of South Carolina would not suffer from an increase of The question being on the amendment offered as a useful information.
substitute by Mr. Banks, that the votes given in Garrard Mr. HAWES again moved to lay the motion to print on county before ten o'clock on the first day of the election, the table; which was negatived without a division. while Moses Granl, Esq. acted as one of the judges; and
After some remarks by Mr. Coulter, the question the votes given on the second day, in the absence of was stated on filling the blank with the highest number, the sheriff, ought to be counted, in ascertaining the result thirty thousand.
of the electionMr. PINCKNEY moved to fill the blank with forty Mr. VANDERPOEL rose and said: thousand; which was negatived without a division. He was too fully sensible of the impatience of the House,
The question was then taken on filling the blank with not to know that a long speech upon the subject now thirty thousand; which was carried: Yeas 93, nays 89. under consideration would not find much favor; but, as a
The motion to print thirty thousand copies of both re- member of the committee whose report had been so elabports was then adopted without a division.
orately criticised, he felt it his duty to say a few words in THE COMMUTATION BILL
its vindication. But, said Mr. V., even this duty is ren
dered almost superfluous by the very able, unanswerable, Was then taken up; and, after a debate, in which all and yet unanswered argument of the gentleman from the questions formerly mooted were rediscussed, the Ohio, (Mr. HAMER,) who was his associate on that compending motion to reconsider the vote by which the bill mittee--an argument so fair, so cogent and conclusive, had been recommitted was negatived, by yeas and nays, that, while it must have produced an influence upon all as follows: Yeas 76, nays 104.
listeners here in relation to the pending question, cannot So the bill remains in Committee of the Whole on the fail to secure to the honorable gentleman from Ohio a state of the Union,
proud and enviable place, not among the declaimers, but, THE COIN BILL
what is much more rare, sir, among the logicians on this
Aoor. Yes, sir, this, bis first and very fortunate effort, is Was then taken up; and the question being on its pas- a sure earnest of that elevated rank he will one day secure sage
here, should his constituents continue to favor him with Mr. GORHAM moved to recommit the bill, with in the manifestation of their confidence. structions, making the dollars of South America a lawful Sir, said Mr. V., as a member of the Committee of tender by tale, under certain conditions.
Elections, I was not unaware of the high responsibilities After a desultory debate
connected with the station, of the great interest which Mr. BOON moved the previous question; but the House the contending candidates and their respective friends refused to second it: Yeas 73, nays 80.
felt in the question submitted to us, and of the importance Mr. JONES moved to commit the bill to a Committee of establishing correct principles in cases growing out of of the Whole on the state of the Union, with instructions, the exercise of that privilege which is so dear to Ameriwhich prevailed: Yeas 86, nays 82.
We knew, sir, that whatever result we might The House immediately went into such committee, Mr. attain was doomed to encounter the severest criticism and Briggs in the chair.
the most sturdy opposition of a portion of this House; and Mr. WHITE moved that the committee rise and re- the course which the debate has already taken shows port the bill according to the instructions; wliich was that, in this particular at least, our expectations are to be agreed to.
fully realized. The bill was then reported as amended.
It is well, said Mr. V., that the House should underMr. WHITE moved that the bill be engrossed and read stand upon what grounds the respective parties based their a third time immediately; which was done
claim to a decision in their favor. From the course which When the bill was passed and sent to the Senate. And then the House adjourned.
the debate has thus far taken, and the time that has been consumed in the discussion of the votes taken at Lancas
ter on the morning of the first day, before ten o'clock, WEDNESDAY, MAY 28.
and on the second day, when the sheriff was absent, an
impression has probably been made upon some gentlePOLISH EXILES.
men, who have not looked critically into this mass of Mr. J. Q. ADAMS obtained leave to submit a motion evidence which lies upon your table, that this question granting the use of the hall for a public meeting, to be concerning the Lancaster votes is the controlling, if not held to devise means for the relief of the Polish exiles, the only question in the case. I beg gentlemen to dison tomorrow evening, the former meeting having failed card this notion before we proceed another step in this from the inclemency of the weather.
So far from this being the only point in the case, The motion prevailed; and the use of the hall was it will appear, from a reference to the report of the maagreed to.
jority of the committee, that, laying this point (whicla. Mr. CHILTON asked the unanimous consent of the gentlemen have seen fit to denominate and misname as
MAY 28, 1834.]
[H. or R.
" technical") entirely out of view, and regarding all the ing. In the third section it is provided that the judges of votes taken at Lancaster as good, when Grant officiated the election and clerk, before they proceed to the execuas judge, before ten v'clock in the morning, and when tion of their duty, shall take the oath prescribed by the the sheriff was absent, on the second day of the election, constitution. They shall attend to receiving the votes there would still be left a majority of six votes in favor of until the election is completed, and a fair statement made Mr. Moore. According to the report of the majority, of the whole amount thereof, &c. after the poll: were purged of all spurious votes, Mr. The county court of Garrard county had, at their term Moore had 3,115 votes, and Mr. Letcher had 3,109 votes; next preceding the election, appointed Isaac Marksbury and this, too, after giving Mr. Letcher the full benefit of and William Wheeler judges of the election. Mr. Marksthese Lancaster votes proposed to be rejected by the bury refused to act, and Lewis Landrum was appointed committee.
by the sheriff to supply his place. At about nine o'clock It must be remembered, sir, that various points were on the morning of the first day of the election, Mr. taken by the parties besides the one growing out of the Wheeler not having arrived, the sheriff appointed Moses alleged irregularity at Lancaster. Many votes were dis- Grant to act in his stead. Grant, under this appointment, allowed because the voters were non-residents of the officiated till about ten o'clock, when Wheeler arrived State of Kentucky. Others were excluded because they and took his seat as one of the judges, and Grant left the were non-resirlents of the county in which they voted. bench. During the time that Wheeler thus acted, it Others were stricken off because ihey were minors, some appears that twenty-two votes were given for Mr. Letcher, because they were aliens, and a few were espunged be- and three for Mr. Moore. It appears also, that, on the cause there was sufficient evidence that no such persons second day of the election, the sheriff was for a consideras appeared on the poll-books resided in the county in able time absent when votes were taken. The majority which their votes purported to have been given. After of the committee contend that these votes, thus taken in taking up and applying the testimony, and purging the the absence of the sheriff, ought also to be disallowed. polls of all the votes adjudged to be bad, on account of Should these votes, thus taken on the first day, when these various causes, the vote stood as above stated-3,115 Grant officiated as judge, and on the second day, when for Moore, and 3,109 for Letcher.
the sheriff was absent, be rejected, the loss of Mr. Letcher Why is it, then, sir, that the gentleman from Georgia in consequence of it will be thirty-eight-as Mr. Letcher [Mr. CLAYTON] has told the House that the committee received during these periods fifty-four votes, and Mr. propose to give the seat to the candidate who appears to Moore sixteen votes. have received a minority of the votes of the legally quali The question proposed, then, by the gentleman from fiel voters of the district, when the report tells us that, Pennsylvania [Mr. BANKS) is, Shall Mr. Letcher lose this laying out of view the votes alleged to have been irregu- balance of thirty-eight votes, thus alleged to have been larly taken at Lancaster, Mr. Moore still has a majority of illegally taken? Should the House decide that they were six? I am well aware, sir, that some of the acts of the illegally received, it will be clecisive of the case, but majority in purging the polls and applying their own should a contrary decision be made, then, as it would rules are assailed in the report of the minority; yet this seem from the report of the minority, a most strenuous does not disprove the unfairness of the re:nark, ihat, by effort will be made to fritter away the remaining majority striking off the votes taken at Lancaster while Grant offi- of six, by attacking the details by which the result of the ciated and Kennedy was absent, the committee propose majority was attained. I am not afraid, sir, to subject to give the seat to the minority candidate. So far from the doings of the majority of the committee to such an admitting, sir, that the objection against the Lancaster ordeal; but this I will say, that if the House shall take Foies is one of form and technicality, I shall attempt to up every contested vote, apply the testimony to it, and show that it is one of vitality and substance. But if it determine whether the conclusion at which the committee were otherwise, is it correct to say, after referring to the have arrived is justified by the testimony or not, we must report of the majority, that they propose to give the seat abandon all idea of entering upon any other business beto a candidate who has a minority of the votes; that the fore the termination of this session. This labor will neces. intention of the majority of the electors is proposed to be sarily devolve upon us, if Mr. Letcher shall be adjudged frustrated; and that Mr. Letcher is to be sacrificed to to be entitled to the votes taken at Lancaster which were form-either to 'substantial form or formal form," if I may disallowed to him by the majority of the committee. be permitted to borrow the nice and to me novel distinc- Formidable as the task may be, we must not shrink from tion of the gentleman from Pennsylvania, (Mr. Binner.] it, should it become indispensable to a correct decision of
The amendment of the gentleman from Pen::sylvania, this case. (Mr. Banks,] who was a member of the committee, pro I come now, sir, directly to the question proposed by poses, as a kind of preliminary operation, to try the sense the amendment of the gentleman from Pennsylvania, [Mr. of the House as to the Lancaster votes charged in the BANKS.] Were the votes taken at Lancaster on the report of the majority as irregular. Before we proceed morning of the first clay, when Grant acted as judge, and any further in the discussion, let us distinctly understand on the second day, when the sheriff was absent, good; the facts in relation to these contested Lancaster votes, and ought they to be allowed? which I propose, in imitation of the example of the hon 1st. I contend that Grant's appointment, made by the orable gentleman from Pennsylvania, mainly, if not solely, sheriff before ten o'clock, was void; that he was a to discuss. The act of the Legislature of Kentucky reg- usurper; and that the votes taken while he presided should ulating the manner in which elections shall be held in that be disallowed. Slale, provides “ that the justices of the county court, at But, sir, we are told by the very learned and distina their court next preceding the election, shall appoint two guished gentleman from Pennsylvania,“ [Mr. Binney,] of their own body as judges of the election, and also a that this is an objection of form, and not of substance; clerk, with the following proviso, viz:
that the rights of the voter are so sacred, that, in order to "In case the county court shall fail to make such give effect to his will, we must overlook almost wholly appointment, or the persons appointed, or any of them, the means by which an expression of that will was secufail to attend, the sheriff shall, immediately preceding the red. Indeed! Is this an objection of form? No, sir; it election, appoint proper persons to act in their stead.” is one emphatically of weight and substance, as I shall
It is provided, in the first section of the same act, that attempt to show. the sheriff or other presiding officer shall, on the day of Whether judges, lawfully and constitutionally appointevery election, open the poll by ten o'clock in the morn-led, and clothed with the requisite power, exercised that
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(May 28, 1834. power according to all the forms and formalities prescri. Let us see, sir, where this argument would end. The beci by law, is one question. But whether they had juris right of suffrage, sir, with all the eulogies it has so justly diction of the subject matter--whether they were in point received during this discussion, is not more dear than life, of fact judges at all--and whether the whole proceeding liberty, and property. In most, if not all the States, we was not coram non judice-this, sir, is quite a different have tribunals called county courts, or courts of general matter. The former might be a question of form; the sessions, which have criminal jurisdiction. In the State latter would indeed be one of substance. The question of New York the number of three judges is necessary to here, be it remembered, sir, involves the very existence constitute a court. Suppose a citizen indicted for crime, of the court that his assumed and exercised juriseliction; and put on bis trial before such tribunal; only two of the not whether the court has strictly observed all the forms judges are present and presiile, a third gentleman (some prescribed by the law, but whether the tribunal contem- Grant if you please) claiming to be a judge, to be sure plated and requireil by the law and the constitution, act. sits with and co-operates with them, but he is a mere ed at all. And yet gentlemen, in their overweening usurper, without commission or pretence of authority--a anxiety in this case to give effect to the will of the voter, verdict goes against the accused--would this verdict be would almost seem to contend that the existence or non- regular, or would the judgment, which such court might existence of a legal board, or court, to receive the votes, render on this verdict be void?. In short, would not all is all a mere question of form.
the proceedings, from the commencement of the trial to The gentleman from Pennsylvania (Mr. BINNEY) has the end, be voil, as baving been coram non judice? Is favored us with several examples, by way of showing that there a lawyer on this floor who can doubt it?' And what the non-observance of mere matters of form on the part of might not be urged with great plausibility, though in vain, the judges and inspectors of an election, cannot vitiate in such a case? It might peradventure he said, as las such election, or affect the rights of the electors. He been so loudly and repeatedly said here, “substantial justells us that the law of Kentucky requires proclamation tice has been done,” the jurors were both julges of the after an election, to be made in the court-louse yard-- law and the fact. If this half-formed court committed and asks us, with an air of triumph, whether, if he omit- any errors, they were comunitted in favor of the accused. ted to make proclamation, " in the court-louse yard,” or Every point of law was decided in favor of the prisoner; if there were no yard, if he should make proclamation in the jury were expressly charged that the evidence for the the street or elsewhere, whether, for such omission of, or prosecution was insufficient to authorize a conviction. deviation from, the forms and ceremonies prescribed by They deliberated long and patiently, and weighed and law, we would declare the election void? Certainly not. canvassed the whole testimony impartially, and decided But I ask gentlemen, in all candor, whether the mere honestly; and yet no gentleman can for a moment doubt omission to perform such a ceremony, after the judges, that, persuasive as might be all these considerations, the the organs or instruments through which an election is to trial had and verdict rendered under the auspices of this be accomplished, is not altogether a different affair from imperfect court, would unhesitatingly be set aside. Supthe question, whether such organs or instruments were pose the verdict in favor of the prisoner--would it be a ever created, or ever existed.
bar to, or protection against, another trial? Could he, So as to the case of Prior Lea, which was also put to after such an exposure, effectually seize for his shield us by the gentleman. There the inspectors, the court, if that clause of the constitution which provides that “110 you please, bad a legal existence. The law of Tennessee person shall be twice put in jeopardy for the same cause?” required that, at the close of each day of the election, the it will not be pretended, sir. returning officer (sheriff) should, in the presence of the Sir, I might multiply examples without number, to inspectors, put his seal on the place to be made for the show the fallacy and danger of the notion that when reception of the tickets, which should continue until the substantial justice has been done, it is useless or inadıniselection should be renewed the succeeding day, and that sible to inquire how or by whom it was administered. it should be the duty of the inspectors to take charge of Take the familiar case of twelve jurors: suppose eleven the box until the polls were opened the next day, and the only of their number to be sworn, and the twelfth omitseal should then be taken off in presence of the inspectors. ted to be sworn. Is it not too clear a proposition to urge, There, in one precinct, the ballot-box, after the poll sir, that this omission to swear the twelfth man would be closed, was left in the hands of the sheriff, instead of be- fatal to the verdict, however perfectly it might accord ing left in the hands of one of the judges, as the law re- with the justice of the case? The juror who was not quired; and in another precinct, instead of a ballot-box, sworn may not have been aware of the fact, he may have a gourd was used. The election was proved to have been come to the same conclusion that he would have arrived perfectly fair, the ballot.boxes were proved to have been at had his conscience been bound by an oath-- yet he was kept in a safe place, secure from invasion from any quar- no juror in the eye of the law, and the verdict would ter, and the committee, and I believe the House, held therefore be nul and void. that a non-compliance with these requisitions of the stat Because substantial justice has been done in a case nte as to the box and the sealing of the box, should not involving life, liberty, and property, it seems it is not vitiate the election. There is no analogy, sir, between enough to say that it is immaterial by whom it was done, that case and the one now under discussion. The omis- whether all the organs and means required by law were sions there complained of, were comparatively formal employed in doing it or not. Why should a different rule omissions. The tribunal there was complete; there was prevail in a case involving the elective privilege? Is it no usurper there. The judges were clothed with lawful more dear than life! Is it more sacred than liberty? Let authority, and exccuted their duties informally. Here, not gentlemen too readily embrace the idea, that the obbe it always remembered, the objection is fundamental; jection to the Lancaster votes, while Grant presided, is a it is, that there was only one judge to receive the votes, mere formal objection. No, sir; it is a question of great and consequently no such board or court as the law of weight and substance. It involves, as I will presently Kentucky made indispensable.
undertake to show, the question, whether the constitui. The gentleman from Pennsylvania (Mr. BINNEY) tells tion and the laws of the country have any binding efficacy us that the votes taken while Grant officiated in the in this hall? It is, recollect, sir, a question, not whether morning were all given by legally qualified voters, and the court did its formal duty in relation to the subject-matthat it would be extremely hard to disallow them on the ter, within its province, whether it respected all the forms ground that there were but two legally authorized parties of law, but whether any court acted upon the subjectio receive them, when the law required three.
matter at all. There is no sounder rule ihan this, that the
Mar 28, 1894.]
[H. OF R.
absence of one meinber, when the law requires a certain sir, can only be held to mean, if we are willing to give number to do an official act, is as fatal as the absence of all. effect to the whole constitution, that each House shall be
I now, sir, come to the second branch of this subject, the judge of the election returns and qualifications of its viz: Was Grant, who acted before 10 o'clock in the morn. owii members, subject, however, in the absence of any ing, a judge appointed according to the constitution and congressional legislation, to the provisions of any State laws of Kentucky! In order to determine this point, it law in relation to these particulars, of the time, place, and becomes necessary to inquire, what is the extent of the manner of holding the elections for representatives in power of this flouse in cases of contested elections, when Congress. it is called upon to judge of the election returns and The idea is, therefore, unsound and dangerous in the qualifications of its own members, and what power we extreme, that, in our anxiety to carry into effect the inhave bere to disregard or excuse a non-compliance with tention of the elector, and give effect to his choice, we can the laws of any State, prescribing the time, place, or disregard the injunctions of the laws of the States, as to manner of holding an election for representatives. these important particulars, which the constitution, under
The fourth section of the first article of the constitution which we here sit, expressly subjects to State legislation. of the United States provides “ that the times, places, They are of suflicient importance, sir, to have provoked and mannner of holding elections, in the several States, a constitutional provision in regard to them; and it is a shall be prescribed in each State by the Legislature most dangerous, alarming, and worse than nullifying thereof; but that Congress may, at any time, by law, heresy, now to contend that when a contested question make or alter such regulations, except as to the places of comes here, we are omnipotent; that we are at liberty choosing Senators.”
here, with unrestrained impetuosity, to rush to the single The firth section of the same constitution provides end, as to who received a majority of the votes of the that "each House shall be the judge of the election re- legally qualified voters, without at all regarding the turns and qualifications of its own members.”
means by wlich that end was attained. 1st. The times, places, and inanner of holding the elec The constitution and law of Kentucky comes in, sir, tions, it seems, then, shall be prescribed in each State, and does what the constitution of the United States, in "by the Legislature thereof." The next clause, which express terms, authorizes a State do. They prescribe the provides that Congress may, at any time, make or alter time, place, and manner of holding the elections for such regulations, certainly does not reserve to Congress representatives in Congress in the State of Kentucky. any ex post fac o power. If the State prescribes the time, the time is on the first Monday of August. The place place, and manner, and an election is held according to is to be at the court-house. The manner, the means, or such time, place, and manner, neither the separate action of instruments to carry it into effect, are the sheriff of the this House nor can any subsequent legislation of Con- county, and a clerk and two jiidges, appointed by the gress retroact, so as to remedy a particular and past evil, county court at their term next preceding the election. that has flowed from the observance of such direction as Now, sir, are these matters of time, place, and manner, to tiine, place, and manner. No, sir. The legislation of material, or are they mere formal matters, and will a des Congress must be prospective, so that if an election has viation from those times, places, and manner prescribed been held according to the directions of a law of a State by a State Legislature, under the authority given to it by as to time, place, and manner, and Congress then per- the constitution of the United States, tend to vitiate an ceives, when the contested case conies before it, that the election? time, place, and manner is unreasonable, and is calculated First. The time. Is this material? I humbly appreto work mischief, or has wrought mischief in the given hend that it will hardly be contended that the judges case, it is not competent for this House, in its separate, or have a right to hold an election at a different time from Congress, in its legislative capacity, to remedy the past that fixed by law. Should they open the polls on the evil that may have flowed from an adherence to the time, first day of July, when the law expressly directs them to place, or manner prescribed by the State Legislature; be opened on the first Monday of August, would not an because the Legislature, in establishing the time, place, objection to the validity of the election be well taken? and manner of holding the election, acted under an ex- And would it be an answer to this objection to say, in press delegation of power and authority for that purpose such case, that the electors were not defrauded, that all from that very constitution under which we sit here. 'Un- the electors in the district acquiesced in such arrangeless thes, sir, we, the creatures, can here, in our offi. ment, and that all voted? No, sir. The law being pere al capacity, rise above or nullify the creator that has emptory, it having been enacted according to the constigiven us our official being, it is not in our power to over-inition, this blouse would not, could not, constitutionally, rule or disobey the legislation of a State, in substantial lay claim to a discretion that would overleap the law. It particulars, as to the time, place, and manner" in wirich would look to consequences, to the dangerous precedent an election is to be held. If that legislation is calculated which the sanction of such a disregard of the express into work mischief, let Congress interpose its legislative junctions of the law would establish.
It would protest pover, and remedy it as to the future. The past is bc- inost emplatically against the principle of prostrating yond the control either of Congress or of this House. those salegnards which the law and the constitution bave
But, sir, if we should yield our inqualified assent !o planted around the elective privilege, and of subjectings the argument of the honorable gentleman from Pennsyl- it to the partality, caprice, humor, and management of vania, ( Mr. BixxeY,) we would conclude that Congress the partisans of the candida'e. derises inost paramount and overwhelming power from The place. Is this material? Most indubitably, sir. the fifth section of the constitution, which provides that we have an example in the case now under consideration, ** cach blouse shall be the judge of the election returns to denonstrate the materiality of the place, in regard to and qualifications of iis own members.". I most strenu- an election, and the total want of power or discretion in ously contend, sir, that this section is subordinate to that the judges of the election, to change the place prescribed ciause of the fourth section which provides that “the by :w. The judges in one of the precincts left the times, places, and manner of holding elections for repre-court-house where the election was held, and went to the sentatives of Congress shall be prescribed in each state house of a sick man, and took liis vote for Mr. Letcher; by the Legislature thereof.” Both sections must be so and even the minority of the committee admitted, and construed as that effect may be given to both. Yes, crery member of the Blouse here will be ready to admit, sar, they must be so construed, as the lau yers would say, that this vote was illegally tuken, and ought to be reject* ut res magis valeut quam percat." This fifth section, led, no matter how perfect were the qualifications of the
U. or R.]
(May 28, 1834.
voter. There, if you please, this “substantial justice,” lore. Though the gentleman has attributed to equity which, more potent than charity, would seem to cover or such high and alarming power as is indicated by the case excuse all official delinquency on the part of the officers of the deed which he has put, I may, sir, without incur. of the election, was done. The will of a qualified voter ring the charge of cherishing an unbecoming share of was carried into effect, and what would it have availed State pride, be permitted to say that in New York we this infirm old man, if, to all the qualifications necessary have a court of chancery, which has for many, many to make him an elector of Kentucky, he had had it in his years, been the pride of that great State—and has ever been power to superadd this touching appeal: “In the days of graced by great and good officers. There, sir, it is one my youth and my vigor, I fought the battles of my coun- of the boasts of that distinguished tribunal, that it bows try; my blood aided in purchasing and securing the very to the supremacy of the law. There equity is only heldl privileges I now seek to exercise. The wounds I received to be that wherein the law, by reason of its universality, in our great struggle for liberty, have brought on me is deficient. Our court of chancery in that State could premature old age and decrepitude. Here I am, pros- not live a day, sir, if it claimed the right of overruling or trated by sickness and infirmity, and will you add to the setting at defiance the law. If our Legislature should, physical agonies I am suffering, the agonizing reflection by express provision, declare that no deed should be ihat I cannot be permitted to exercise the dearest right valid unless it were signed by two witnesses, I venture of a freeman, merely because I cannot even hobble on to say that we never have had, and never will have, a my crutches to the polls?” Though your sensibilities chancellor with nerve enough to declare that one witness might be awakened by such an appeal, your judgment, was sufficient to render it valid. If a Legislature or consir, would war against a compliance with the good old stitution should require three judges or members to give man's wishes. You could not, then, you will not, in this efficacy to an official act, I take it that no chancellor, in instance, gratify him.
this or any other country that boasts of a constilutional The time and the place, then, being so very material, government, would arrogate to himself the worse than I would inquire, why the next item in the account--1 despotic power of ordering and decreeing that one or mean the manner, the means, the judges, the instruments, two only were sufficient for that purpose. No court of by which the election is to be carried into effect--are not chancery, to my knowledge, has ever asserted or usurped equally material? The conduits through which the will such high powers as are now claimed for this House--ihe of the voter is to flow here--are they less essential than right of disregarding, or, to use a more familiar term, of the particulars of time and place!' on what rational nullifying a State law, passed in pursuance of an express principle can gentlemen pretend so?
delegation of power from the constitution of the United But it has been urged by the gentleman from Pennsyl- States. If the rights of the voter are, as some gentlemen vania, (Mr. BinneY,) with that force and plausibility have contended, above the law, we, sir, are not so far which so eminently distinguish him, that we are a high above the constitution that created ris, as to enable us to court of equity; that we have power to decide this case, control matters which it has expressly committed to the not only according to law, but according to our notions of control of another. If it has delegated to an agent, in the equity; and all this, notwithstanding the constitution un- shape of a State Legislature, the power to legislate over der wbich we here officially live and move and have our particular subjects, that agent, when it so legislates, being, las expressly authorized the State to legislate as speaks the voice of the constitution; a voice which we to these matiers, which we are now required, in the cannot and dare not disobey. plenitude of our fancied omnipotence, to leap over and Having attempted to establish, first, that the State of disregard.
Kentucky acted within its constitutional province, when Sir, I know not whence we derive equitable powers, it prescribed the time, place, and manner of holding the so transcendent as those which I have here, to my very election for representatives to Congress; second, that great surprise, heard claimed for us-powers which ena- the appointment of judges to receive the votes of the ble us to set the constitution and laws at defiance, and electors is one of the modes, the manner of carrying an authorize us here, in a judicial capacity, to exercise the election into effect; and, thirdly, that a non-compliance despot's prerogative-to dispense justice according to our with these requisitions, as to time, place, and manner, abstract notions of right and wrong. When, as an bum- cannot be cured by any fancied omnipotence that rests ble member of this House, I look into the mirror of the here; I now, sir, propose to inquire whether the elecconstitution, I do not, I cannot see myself panoplied in tion before ten o'clock on the morning of the first day all the might and majesty which gentlemen now seem was an election according to the laws and the constitution disposed to arrogate to us. No, sir; I find myself a mere of Kentucky. worm of the constitution, bound by every obligation that The statute of Kentucky, which was already been in can bind me to my country and my God, to execute and part recited, but which it becomes necessary for the obey its bigh behests.
purpose of my argument to repeat, enacts That the The gentleman from Pennsylvania, (Mr. BINNEY,] in sheriff of each county shall advertise, at least one month illustration of his position that we are a high court of before the first Monday in August, in every year, the equity, with power competent to decide this question in time and place of holding the election, and what offices are such manner as at all events to carry into effect the will to be filled; and that the sheriff or other presiding offiof the elector, puts to us a crise illustrative of the high cer shall, on the day of election, open the polls by ten powers of a court of equiry. Ile says that, if a law should o'clock in the morning, and continue the same open require two subscribing witnesses to a deed in order to until at least one hour before sunset each day; and dirender it valid, it would be competent for a court of equi- rects the county court, at their session next preceding ty to adjudge and decree it valid if it had only one wil- the election, to appoint two of their body as judges of
the election, and a proper person to act as clerk; but in I know not, sir, what standard of equily prevails in case the county court shall not appoint any person, Pennsylvania, where, I believe, they have no court of any of the persons appointed should fail to attend, the chancery. This circumstance does not, however, author. sheriff, immediately preceding any election, shall appoint ize the inference that the honorable gentleman's notions proper persons to act in their stead. It also requires of equity are crude or unsound; for we have had too the judges of the election and clerk, before proceeding convincing proof of the high professional attainments of to act as such, to take the oath prescribed by the conthat honorable gentleman, not to know, sir, that he has stitution; and expressly declares that they shall attend drawn his resources from the richest fountains of legal to the receiving of the votes until the election is comple