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H. OF R.]

Coin Bill-Polish Exiles--Kentucky Election.

[MAY 28, 1834.

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. zens. If that gentleman had reflected that the motion Objection having been madeto print had come from the State of Pennsylvania, he might have spared himself some portion of his sympathy. [Mr. PINCKNEY wished to explain. It was not Pennsylvania alone which he wished to enlighten, but the whole United States. He was not before aware that the motion 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 general question. He should not have risen, but from the appeals which had been made in behalf of poor Pennsylvania. The gentleman from South Carolina [Mr. PINCKNEY] would do well to look at home. The people of South Carolina would not suffer from an increase of useful information.

Mr. HAWES again moved to lay the motion to print on the table; which was negatived without a division.

After some remarks by Mr. CoULTER, the question was stated on filling the blank with the highest number, thirty thousand.

Mr. PINCKNEY moved to fill the blank with forty thousand; which was negatived without a division.

The question was then taken on filling the blank with thirty thousand; which was carried: Yeas 93, nays 89. The motion to print thirty thousand copies of both reports was then adopted without a division.

THE COMMUTATION BILL

Was then taken up; and, after a debate, in which all the questions formerly mooted were rediscussed, the pending motion to reconsider the vote by which the bill had been recommitted was negatived, by yeas and nays, as follows: Yeas 76, nays 104.

So the bill remains in Committee of the Whole on the state of the Union.

THE COIN BILL

Was then taken up; and the question being on its passage

Mr. GORHAM moved to recommit the bill, with instructions, making the dollars of South America a lawful tender by tale, under certain conditions.

After a desultory debate

Mr. BOON moved the previous question; but the House refused to second it: Yeas 73, nays 80.

Mr. JONES moved to commit the bill to a Committee of the Whole on the state of the Union, with instructions; which prevailed: Yeas 86, nays 82.

The House immediately went into such committee, Mr. BRIGGS in the chair.

Mr. WHITE moved that the committee rise and report the bill according to the instructions; which was agreed to.

The bill was then reported as amended. Mr. WHITE moved that the bill be engrossed and read a third time immediately; which was doneWhen the bill was passed and sent to the Senate. And then the House adjourned.

WEDNESDAY, MAY 28.

POLISH EXILES.

Mr. J. Q. ADAMS obtained leave to submit a motion granting the use of the hall for a public meeting, to be held to devise means for the relief of the Polish exiles, on to-morrow evening, the former meeting having failed from the inclemency of the weather.

The motion prevailed; and the use of the hall was agreed to.

Mr. CHILTON asked the unanimous consent of the

Mr. CHILTON moved a suspension of the rule, and called for the yeas and nays on his motion to suspend. The House refused to order them: Yeas 20, nays 102. Mr. CHILTON then withdrew his resolution, for the purpose of modifying it; and the House resumed the con

THE KENTUCKY ELECTION;

The question pending being the resolution reported from the Committee of Elections, declaring Thomas P. Moore to be entitled to a seat in this House, from the fifth congressional district of Kentucky.

The question being on the amendment offered as a substitute by Mr. BANKS, that the votes given in Garrard county before ten o'clock on the first day of the election, while Moses Grant, Esq. acted as one of the judges; and the votes given on the second day, in the absence of the sheriff, ought to be counted, in ascertaining the result of the election

Mr. VANDERPOEL rose and said:

He was too fully sensible of the impatience of the House, not to know that a long speech upon the subject now under consideration would not find much favor; but, as a member of the committee whose report had been so elaborately criticised, he felt it his duty to say a few words in its vindication. But, said Mr. V., even this duty is rendered almost superfluous by the very able, unanswerable, and yet unanswered argument of the gentleman from Ohio, [Mr. HAMER,] who was his associate on that committee-an argument so fair, so cogent and conclusive, that, while it must have produced an influence upon all listeners here in relation to the pending question, cannot fail to secure to the honorable gentleman from Ohio a proud and enviable place, not among the declaimers, but, what is much more rare, sir, among the logicians on this floor. Yes, sir, this, his first and very fortunate effort, is a sure earnest of that elevated rank he will one day secure here, should his constituents continue to favor him with the manifestation of their confidence.

Sir, said Mr. V., as a member of the Committee of Elections, I was not unaware of the high responsibilities connected with the station, of the great interest which the contending candidates and their respective friends felt in the question submitted to us, and of the importance of establishing correct principles in cases growing out of the exercise of that privilege which is so dear to Americans. We knew, sir, that whatever result we might attain was doomed to encounter the severest criticism and the most sturdy opposition of a portion of this House; and the course which the debate has already taken shows that, in this particular at least, our expectations are to be fully realized.

It is well, said Mr. V., that the House should understand upon what grounds the respective parties based their claim to a decision in their favor. From the course which the debate has thus far taken, and the time that has been consumed in the discussion of the votes taken at Lancaster on the morning of the first day, before ten o'clock, and on the second day, when the sheriff was absent, an impression has probably been made upon some gentlemen, who have not looked critically into this mass of evidence which lies upon your table, that this question concerning the Lancaster votes is the controlling, if not the only question in the case. I beg gentlemen to discard this notion before we proceed another step in this matter. So far from this being the only point in the case, it will appear, from a reference to the report of the majority of the committee, that, laying this point (which gentlemen have seen fit to denominate and misname as

MAY 28, 1834.]

Kentucky Election.

[H. of 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 execu as judge, before ten o'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 polls were purged of all spurious votes, Mr. Moore had 3,115 votes, and Mr. Letcher had 3,109 votes; and this, too, after giving Mr. Letcher the full benefit of these Lancaster votes proposed to be rejected by the committee.

The county court of Garrard county had, at their term next preceding the election, appointed Isaac Marksbury and William Wheeler judges of the election. Mr. Marksbury refused to act, and Lewis Landrum was appointed 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-residents of the county in which they voted. bench. During the time that Wheeler thus acted, it Others were stricken off because they were minors, some appears that twenty-two votes were given for Mr. Letcher, because they were aliens, and a few were expunged 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 5,109 for Letcher. the sheriff was absent, be rejected, the loss of Mr. Letcher in consequence of it will be thirty-eight-as Mr. Letcher received during these periods fifty-four votes, and Mr. Moore sixteen votes.

Why is it, then, sir, that the gentleman from Georgia [Mr. CLAYTON] has told the House that the committee propose to give the seat to the candidate who appears to have received a minority of the votes of the legally qualified voters of the district, when the report tells us that, laying out of view the votes alleged to have been irregularly taken at Lancaster, Mr. Moore still has a majority of six? I am well aware, sir, that some of the acts of the majority in purging the polls and applying their own rules are assailed in the report of the minority; yet this does not disprove the unfairness of the remark, that, by striking off the votes taken at Lancaster while Grant officiated and Kennedy was absent, the committee propose to give the seat to the minority candidate. So far from admitting, sir, that the objection against the Lancaster votes is one of form and technicality, I shall attempt to show that it is one of vitality and substance. But if it were otherwise, is it correct to say, after referring to the report of the majority, that they propose to give the seat to a candidate who has a minority of the votes; that the intention of the majority of the electors is proposed to be frustrated; and that Mr. Letcher is to be sacrificed to form-either to "substantial form or formal form," if I may be permitted to borrow the nice and to me novel distinction of the gentleman from Pennsylvania, [Mr. BINNEY.] The amendment of the gentleman from Pennsylvania, [Mr. BANKS,] who was a member of the committee, proposes, as a kind of preliminary operation, to try the sense of the House as to the Lancaster votes charged in the report of the majority as irregular. Before we proceed any further in the discussion, let us distinctly understand the facts in relation to these contested Lancaster votes, which I propose, in imitation of the example of the honorable gentleman from Pennsylvania, mainly, if not solely, to discuss. The act of the Legislature of Kentucky regulating the manner in which elections shall be held in that State, provides "that the justices of the county court, at their court next preceding the election, shall appoint two of their own body as judges of the election, and also a clerk, with the following proviso, viz:

"In case the county court shall fail to make such appointment, or the persons appointed, or any of them, fail to attend, the sheriff shall, immediately preceding the election, appoint proper persons to act in their stead."

The question proposed, then, by the gentleman from Pennsylvania [Mr. BANKS] is, Shall Mr. Letcher lose this balance of thirty-eight votes, thus alleged to have been illegally taken? Should the House decide that they were illegally received, it will be decisive of the case, but should a contrary decision be made, then, as it would seem from the report of the minority, a most strenuous effort will be made to fritter away the remaining majority of six, by attacking the details by which the result of the majority was attained. I am not afraid, sir, to subject the doings of the majority of the committee to such an ordeal; but this I will say, that if the House shall take up every contested vote, apply the testimony to it, and determine whether the conclusion at which the committee have arrived is justified by the testimony or not, we must abandon all idea of entering upon any other business before the termination of this session. This labor will necessarily devolve upon us, if Mr. Letcher shall be adjudged to be entitled to the votes taken at Lancaster which were disallowed to him by the majority of the committee. Formidable as the task may be, we must not shrink from it, should it become indispensable to a correct decision of this case.

I come now, sir, directly to the question proposed by the amendment of the gentleman from Pennsylvania, [Mr. BANKS.] Were the votes taken at Lancaster on the morning of the first day, when Grant acted as judge, and on the second day, when the sheriff was absent, good; and ought they to be allowed?

1st. I contend that Grant's appointment, made by the sheriff before ten o'clock, was void; that he was a usurper; and that the votes taken while he presided should be disallowed.

But, sir, we are told by the very learned and distinguished gentleman from Pennsylvania,* [Mr. BINNEY,] that this is an objection of form, and not of substance; that the rights of the voter are so sacred, that, in order to give effect to his will, we must overlook almost wholly the means by which an expression of that will was secured. Indeed! Is this an objection of form? No, sir; it is one emphatically of weight and substance, as I shall attempt to show.

It is provided, in the first section of the same act, that 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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Kentucky Election.

[MAY 28, 1834.

power according to all the forms and formalities prescri- Let us see, sir, where this argument would end. The bed 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 has assumed and exercised jurisdiction; and put on his trial before such tribunal; only two of the not whether the court has strictly observed all the forms judges are present and preside, 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 required 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 void, as having 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 be said, as has 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 judges of the after an election, to be made in the court-house 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 committed in favor of the accused. ted to make proclamation, "in the court-house 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, after such an exposure, effectually seize for his shield that clause of the constitution which provides that "no person shall be twice put in jeopardy for the same cause?" It will not be pretended, sir.

So as to the case of Prior Lea, which was also put to us by the gentleman. There the inspectors, the court, if you please, had a legal existence. The law of Tennessee required that, at the close of each day of the election, the 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 null and void.

that a non-compliance with these requisitions of the stat- Because substantial justice has been done in a case ute 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 executed 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 Kentucky made indispensable.

The gentleman from Pennsylvania [Mr. BINNEY] tells us that the votes taken while Grant officiated in the morning were all given by legally qualified voters, and that it would be extremely hard to disallow them on the ground that there were but two legally authorized parties to receive them, when the law required three.

weight and substance. It involves, as I will presently undertake to show, the question, whether the constitution and the laws of the country have any binding efficacy in this hall? It is, recollect, sir, a question, not whether the court did its formal duty in relation to the subject-matter, within its province, whether it respected all the forms of law, but whether any court acted upon the subjectmatter at all. There is no sounder rule than this, that the

MAX 28, 1834.]

Kentucky Election.

absence of one member, when the law requires a certain number to do an official act, is as fatal as the absence of all. I now, sir, come to the second branch of this subject, viz: Was Grant, who acted before 10 o'clock in the morning, a judge appointed according to the constitution and laws of Kentucky? In order to determine this point, it becomes necessary to inquire, what is the extent of the power of this House in cases of contested elections, when it is called upon to judge of the election returns and qualifications of its own members, and what power we have here to disregard or excuse a non-compliance with the laws of any State, prescribing the time, place, or manner of holding an election for representatives.

The fourth section of the first article of the constitution of the United States provides "that the times, places, and mannner of holding elections, in the several States, shall be prescribed in each State by the Legislature thereof; but that Congress may, at any time, by law, make or alter such regulations, except as to the places of choosing Senators.”

[H. OF R.

sir, can only be held to mean, if we are willing to give effect to the whole constitution, that each House shall be the judge of the election returns and qualifications of its own members, subject, however, in the absence of any congressional legislation, to the provisions of any State law in relation to these particulars, of the time, place, and manner of holding the elections for representatives in Congress.

The idea is, therefore, unsound and dangerous in the extreme, that, in our anxiety to carry into effect the intention of the elector, and give effect to his choice, we can disregard the injunctions of the laws of the States, as to these important particulars, which the constitution, under which we here sit, expressly subjects to State legislation. They are of sufficient importance, sir, to have provoked a constitutional provision in regard to them; and it is a most dangerous, alarming, and worse than nullifying heresy, now to contend that when a contested question comes here, we are omnipotent; that we are at liberty here, with unrestrained impetuosity, to rush to the single The fifth 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 which that end was attained. 1st. The times, places, and manner 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 judges, 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 time, place, and manner. No, sir. The legislation of material, or are they mere formal matters, and will a de

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 comes 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 then, sir, we, the creatures, can here, in our offi-ment, and that all voted? No, sir. The law being per

cal 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-tution, this House 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 which 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 power, and remedy it as to the future. The past is be-nost emphatically against the principle of prostrating yond the control either of Congress or of this House. those safeguards which the law and the constitution have But, sir, if we should yield our unqualified assent to planted around the elective privilege, and of subjecting the argument of the honorable gentleman from Pennsyl-it to the partiality, caprice, humor, and management of vania, Mr. BINNEY,] we would conclude that Congress the partisans of the candidate. derives most 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, "each House shall be the judge of the election returns to demonstrate the materiality of the place, in regard to and qualifications of its 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 clause of the fourth section which provides that "the by law. 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 his 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, every member of the House here will be ready to admit, sir, they must be so construed, as the lawyers would say, that this vote was illegally taken, and ought to be reject "at res magis valeat quam pereat." This fifth section, ed, no matter how perfect were the qualifications of the

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voter.

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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 incurof 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 held 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 that 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, sir, would war against a compliance with the good old man's wishes. You could not, then, you will not, in this instance, gratify him.

was sufficient to render it valid. If a Legislature or constitution should require three judges or members to give efficacy to an official act, I take it that no chancellor, in this or any other country that boasts of a constitutional 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--I 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--the 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?

But it has been urged by the gentleman from Pennsyl. vania, [Mr. BINNEY,] with that force and plausibility which so eminently distinguish him, that we are a high court of equity; that we have power to decide this case, not only according to law, but according to our notions of equity; and all this, notwithstanding the constitution under which we here officially live and move and have our being, has expressly authorized the State to legislate as to these matters, which we are now required, in the plenitude of our fancied omnipotence, to leap over and disregard.

delegation of power from the constitution of the United States. If the rights of the voter are, as some gentlemen have contended, above the law, we, sir, are not so far above the constitution that created us, as to enable us to control matters which it has expressly committed to the control of another. If it has delegated to an agent, in the shape of a State Legislature, the power to legislate over particular subjects, that agent, when it so legislates, speaks the voice of the constitution; a voice which we cannot and dare not disobey.

Having attempted to establish, first, that the State of 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 hum- 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 has 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 high 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 case illustrative of the high cer shall, on the day of election, open the polls by ten powers of a court of equity. He 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 wit- the election, to appoint two of their body as judges of the election, and a proper person to act as clerk; but in

ness.

I know not, sir, what standard of equity prevails in case the county court shall not appoint any person, or 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

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