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Mar 21, 1834.]
[H. OF R.
Congress, I have already said, is a great constitutional this act will I look, to this voice will I listen; and never, right. The law of the State does not give this right. It no, sir, never, will i permit either the mistakes, negliis a right paramount to the laws of the State. It is a right gence, or fraud, of interior officers, to alter or annihilate which, being secured by the constitution of the United this act of the voter, no matter how humble and retired States and the constitution of the State of Kentucky, is bis situation in life may be. above legislative authority. The laws of the State did The right of suffrage in the hands of the people is the not grant or create it, and, therefore, cannot impair or all-controlling power in this Government. If this right is take it away, either by direct or indirect legislation. This to be lost in the mistakes, negligence, or fraud of officers, ought to be borne in mind in our application of the law what will the consequence be? You at once take off all to the facts in this case. The law of the State only pre- restraint upon ignorance and negligence, and give full scribes forms, and establishes guards, the more effectually license to corruption. If you do this, you at once wprout to secure this right, and its uninterrupted enjoyment, to and overturn all their constitutional safe-guards which the people. The people of the State of Kentucky do not can alone secuire the people in the enjoyment of their choose the judges of the election. They are appointed right of suffrage. How do individuals now find their way by the county court. The people have no direct agency into this House? The old-fashioned and common way in their selection. The people go, at the time fixed, to with us is by getting a majority or plurality of votes. the place of holding their election, and find the sheriff of This is the way which I prefer. But, establish the printhe county, a known public officer, assisted by two judges, ciple contended for, and what rule do you then adopt? and a clerk, either appointed by the court or by the Members will then find their way here, not by the legiti. sheriff, in the discharge of their duties as officers of the mate call of the people, but thre the ignorance or election. I ask, are they to look further? Is it their treachery of some peity officer. Is not this putting the duty to look further? Is it incumbent on them to look to case fairly? I do conceive that it is nothing short of this. the time of day, or to the manner or time in which the Whenever you establish, as a governing principle, that officers were appointed? I cannot bring my mind to the the errors and omissions of officers shall control the acts conclusion that it is at all incumbent on them to look into and voice of the voters, you do in effect establish the the title of the officers. I think I have been successful principle above stated. Men would then find their way in showing that Grant, at least, came into office under into office, not only without the votes of the people, but color of authority, and that he was an officer de facto, if against the votes of the people. When the people have not de jure. He was called to the office by the person spoken and made their choice, their voice is to be disohaving the power to appoint, and was sworn as an officer beyed, and their choice rejected. The people of this of the election before he acted as such. I deny, most country never intended that the elective franchise should positively, that it is or ought to be incumbent on the be made subject to this want of form or abuse on the part citizens of Kentucky to see that all the forms of law, in of county or township officers. The great question, as regard to these preliminary matters, have been observed I have before stated, ought to be, was the election full, to the letter. The people do not hold this parumount free, and fair? Had those who voted a right to vote, and right-this right which is the foundation of all law, and did they vote in time and manner as directed by law' on without which there cannot be any Government in this their parts? If they did, I would give effect to it. The country-by a lenure so frail and precarious. It never right of suffrage is too precious to be subject to such rewas intended that the freemen of Kentucky should be finements and technicalities. This is the only rule which perilled in their right of suffrage, either by the negligence, will preserve our republican form of Government in puignorance, or fraud of petty officers. If they even thought rity. The majority must rule. The person who has the that the officers were not proceeding with regularity, they most legal votes is elected. have no power to correct or remedy it.
The fact that the people themselves, at the time, rally feel the dignity of the authority with which they are thought those irregularities, as far as they had been apclothed, however small it may be. They would not, prized of them, of no importance, has great influence probably, change their course, if requested so to do. upon my mind. Two judges, publicly appointed in the Thus the people have no alternative left but to vote or to way pointed out by law, presided, assisted by a legally go home without voting. They might, to be sure, go constituted clerk, and attended by the high sheriff of the home without voting, but this would be defeating an elec- county. The people of all parties, and all the candidates, tion altogether, and would totally deprive the people of thonght, at the time, all was right. The election was the riglit of suffrage.
public, and the citizens, who were the substantial agents Sir, the great inquiry ought in all cases to be, was the at the election, carried it on without any distrust that it election free, full, and fair, on the part of the voters? was wrong. They did not entertain a doubt, at the time, If it was free, full, and fair, I would take it as the ex- of its validity; no objection was made by any one; the pression of the public will as the voice of the people le people voted for the candidate of their choice; they gitimately made known, and which I hope I will never dis- believed that they were legally and efficiently exercisregard. This will is too dear to freemen, too sacred to ing their rights; no murmur was heard for near two the American people, to be stifled or lost in form. weeks; no inconvenience was felt at the time. All had This will is the substance of the election, the form is but an opportunity to vote and did vote. I cannot now think the shadow. I go for the substance-I go for the votes that all this, thus solemnly and deliberately done by the of freemen, regardless of mere form. I care not for the people, is to be set aside by the application of a rule rareshadow, This will of the people, as communicated by ly resorted to in criminal proceedings. I regard the their votes at the polls, is the essence of every election. opinion of the people. I take for granted that they have Yea, more, it is the election itself; and ought not, and some knowledge of the law and their rights. They did cannot be controlled by mere form, without destroying not think that any injury or injustice was done them; nor Our republican form of government. Who are these pet- do they think so now. They do not now complain; the ly officers, that are worked up into such mighty impor-complaint comes from a candidate, against whom the matance. They do not make the election. They are but jority of the votes was given. I do not think those ob. instruments appointed by law merely to receive the suf-jections ought to prevail. They ought to be considered frages of the people. The great and paramount right as waived by the people, who are the real parties in this consists in the act of voting. It is the voter who speaks. transaction. It is for the interest of the public, and the The voice and act are his; and to this act alone should we rights of the electors require, in my judgment, that they lock, and by this voice alone should we be guided.
Tolshould be so considered.
H. of R.]
[May 21, 1834.
Then, to conclude on this point, I do not think the ground of its being predicated only on illegality in a sep. presence of the sheriff so material that the votes of arate election, without entering into an examination of legally qualified electors should be rejected because he the qualifications of the voters generally; and moved tlie was temporarily absent. I think that Grant was at least recommitment of the report to the Committee of Elecan officer de facło, and that his acts, as such, were most tions with instructions to receive evidence that the perclearly good. The law, with regard to the acts of de sons voting for either candidate were not entitled to vote suclo officers, is perfectly well seitled. It is a rule that on the election. The vote being taken on this motion to is founded in justice, and has been approved of by the recommit, it was decided in the affirmative. Here, then, experience of ages. The rule is as old as our law books. is the principle decided which I contend for. The reThe rule is, that all the acts of such officer are good, so port of the committee was founded on irregularities on far as regards the rights of the public or third persons. the part of the officers or persons holding the election, The office is void as to himself only. This rule is well The committee had rejected votes, because that they had understood in Pennsylvania. Even when rights are di- not been received by the number of officers required by vested, through the agency of officers, this rule applies law, and because that those persons had not been sworn. with all its force. If that be so, why should it not be so This was their report, and for these reasons votes had here! The rights of no one are affected by allowing the been rejected. The committee had not extended their votes of these men. Mr. Moore has no right to complain. examination to the qualification of the electors. What He ought not to come into office against ihe votes of the does the House do? people of the district. The votes which he attempts The report is recommitted, not generally, but with defito strike off were all given by legally qualified voters. nite and particular instructions "10 receive evidence They voted against him. The electors have, in fact, that persons voting for either candidate were not entitled chosen Mr. Letcher. He is their choice; no one doubts to vote at the election." The recommiiment was for it; he ought, therefore, to be their representative; they this single fact; this was all that the House wanted. The have said so.
! regard their voice, and, as far my vote House thus determined to confine them to the single fact will go, I will give effect to it. libink the rules i bave whether the voters were legally qualified. The House laid down are the only safe ones. I think they conform to refused to decide without this inquiry was first made. the great and fundamental principles upon which the This was considered the all-important question. It shows right of suffrage is founded.' I think that they are the clearly that those irregularities were not sufficient to only rules which will promote and secure the high ends vitiate the election in the opinion of that Congress, and contemplated by the people themselves in framing their let in the minority candidate. No principle can be more constitution; and that the one contended for by the ma. clearly asserted, nor can any decision be more directly in jority of the committee completely nullifies the right of point. The committee afterwards reported to the House suffrage
ihat evidence could not be procured, so as to enable the The majority of the committee have referred to some committee to investigate the qualifications of the electors decisions in cases of contested elections as sustaining the during the present Congress, and asked to be dischardecision which they have made. I will answer one or ged from further investigation into the qualifications of the two of those cited. The first which I will notice, is the said electors." Finally, a new election was ordered. It case of Duncan McFarland is. Samuel D. Purviance. plainly appears in the case, that, if the votes which were This case was from North Carolina. On the 29th of Feb. thus irregularly taken were rejected, Rufus Easton ruary, 1804, the Commiitee of Elections made their re. would have been entitled to his seat. Those irregulariport, which was referred to a Committee of the whole ties were clearly made out, yet that Congress would not House, who, on the 6th of March, 1804, were, on motion, suffer this to be done. It appeared to be the opinion of discharged from the further consideration thercof, and members then, as it is mine now, that no individual the subject appears not to have been acted on again du- should be permitted to take his seat against the majority ring that session of Congress. At the succeeding session of the votes of his district. I do not see how any man of Congress, Duncan McFarland again presented his me- can ask, or expect to be permitted, to represent the peomorial, praying that the House would take into consider- ple, not only without, but against their voice; not only ation and ultimately decide upon the subject matter of when they have not chosen him, but when they have in his
This new memorial was referred to the fact chosen another to represent them. This, in my Committee of Elections, but it does not appear that any judgment, is any thing but republican in principle. It is report was ever made thereon. No decision was ever at variance with the genius of our free institutions. I made in this case by Congress, and I am at a loss to know have said all I intended to say on this part of the case, of what authority it can be.
It is of no authority, and I and at present will not remark upon those questions cannot perceive for what purpose it was cited.
which I propose, in the further progress of the case, to I will notice one other case, and, if I am not much mis- present to the consideration of the House. taken, it will turn out that the majority were equally un
When Mr. Banks bad concludedfortunate in citing this case. If I understand the case, it
Mr. JONES, chairman of the Committee of Elections, is an authority directly against the position which they rose in reply, and went at length into a defence of the have taken, and one wbich fully sustains the principles report of the committee: citing precedents from analofor which I have been contending. It is the case of Rufus gous cases decided by Congress, and insisting that they Easton vs. John Scott, delegates of Missouri Territory. bore out the committee in the grounds they had taken. In this case, the committee decided that, as it was requi
Mr. MARSHALL followed, in opposition to tie comred by law that the election should be held by three mittee's report, and had proceeded some length in es judges, who were to be sworn, and that, two persons amining the precedents quoted by the committee, when acted as judges, and were not sworn; that, as the law re
gave way to quired that two persons should act as clerks, who should
Mr. C. ALLAN, who moved an adjournment; but be sworn, and but one acted as clerk, who was not sworn; withdrew the motion to allow opportunity for the reserthat the votes taken by those persons, as officers of the ence of the Senate bills; after which, election, were illegal, and should be rejected. The com
The House adjourned. mittee also made other decisions which I need not take time to state. When this report was before a Committee
WEDNESDAY, MAY 21, 1834. of the Whole House, on the 3d of January, 1817, Mr. KENTUCKY CONTESTED ELECTION. WEBSTER opposed the report of the committee on the The report of the Committee of Elections upon the
contesteil election between T. P. Moore and R. P. Letch-sue, we shall be able to narrow down the question to the er, being the unfinished business of yesterday, came up simple consideration of the manner," "for about the immediately after the Journal was read.
"time" and “place” of “ holding the election," there is Mr. MARSHALL resumed his speech in opposition no dispute. It is now reduced to a mere point. Before ! to the report, and in favor of the amendment moved by proceed to the argument, I must state the principles which Mr. Barks, which proposed to declare that the votes ta- should govern this body, it judging of the elections ken at Lancaster, in Garrard county, before the hour for brought before it for decision. "I lay down this position, opening the polls, and in the absence of the sheriff, shall that, as the right of suffrage is a common right, involving be counted. Mr. M. stated the general principles and the highest attributes of liberty, all laws regulating its exadjudged cases, as well as the peculiar facts relative to ercise should be construed liberally, and the utmost latithis election, and contended at length that the amendment tude allowed to give effect to the right, provided it proshould be adopted. After speaking two hours, he was duces no injury to the people to whom it belongs, or to followed by
the parties it designs to invest with a trust. We should Mr. CLAYTON, of Georgia, who rose and addressed the rather constituie ourselves into a court of equity, to do the Chair as follows:
what the law would have done, if it could have foreseen Mr. Speaker: Although I feel some anxiety to offer a the mischiefs, than into a court of law, to decide the case few reflections to the House on this question, yet I am according to strict technicalities. Neither should we be much discouraged by the great apathy which has prevail- governed by the subtleties of special pleading, much less the ed during its previous discussion.' can it be possible the arts and refinements of quibbling minds. We should not case is prejudged? If so, I cannot Aatter myself that I consider ourselves as trying a case for a horse or a loom, shall gain the attention of members, nor indeed ought I in which the ingenuity of the learned profession wastes to look for it, after witnessing the indifference manifested itself in shifts and quirks, and is better satisfied with its towards those who have gone before me, and who were triumphis when they are obtained by tricks. This elecmuch better prepared to enlighten the House than can tion is contested upon two grounds: 1st, a non-compli. be expected from me. Nevertheless, I am urged, by a ance with the law of Kentucky, regulating the " manner" sense of duty, to this ungracious task, relying upon ihe of holding the election; and 2dly, the reception of illegal hope that, as ours is a Government regulated by public votes. The first is, for the present, the only subject for opinion, I may be listened to in another quarter, though, consideration, as the amendment of the gentleman from in this place, I fail in that desirable object.
Pennsylvania brings that point alone into view. No Mr. Speaker, I had calculated that this subject would state can legislate in relation to the holding of elections, excite a deep interest. I had looked to this investigation under the provision of the constitution last quoted, but as 25 one necessarily fraught with intense concern. What is to time, place, and manner-any thing beyond these is :? I consider it nothing short of the question, whether void, and has been wholly disregarded, as appears by sevours is in truth a representative Government; whether the eral decisions, but especially in the case of Meade and great and often-boasted privilege of suffrage in this coun Spalding. The State of Georgia, in its election law, had try is any thing but a name; in fine, whether the right to required that the returns of the election should be made choose the representative belongs to the people or to in twenty days. It appeared that, within the twenty this House? Sir, can any question be more important? days, the returns had given Meade the highest number of It outstrips all others in its consequences, because all oth- votes, and the governor accordingly gave him the certifi. ers are made to depend upon the true depository of this cate of election; but it also afterwards appeared that, upen immense power. The case, then, presents itself under a the coming in of further returns, after the twenty days twofold aspect: first, in reference to the rights of the had expired, Spalling was elected--and, upon cortesting people; and, secondly, in relation to those of the con- the seat, obtained it without any difficulty. I refer to this tending parties. In this last view, we are called on to case to establish the position, that any legislation of a exercise a judicial function, to pass a judicial judgment; State, out of the time, place, and manner of holding the sod this is a character so pure, so elevated above all the election, is of no manner of obligation upon this House. impulses of passion and feeling, that we should approach With regaré), then, to the “manner" of holding the elecit with the utmost desire to ascertain the justice, and tion, (for ihis, as I stated before, is all that we have now to nothing but the justice, of the case. We should consider consider,) we must carefully distinguish it from the qualifiourselves as sitting in the character of judges or jurors: cation of voters. Qualification is one thing; manner is and, if suitably impressed with their high responsibility, anotier. The first relates to the individual right of the we could not remain inattentive to the argument of a cause voter--the other in giving effect to that right. If he votes involving such grave and delicate rights. What would without qualification, the vote is void, and will be exyou think of a judge who should read newspapers all the punged without prejudice to the other legal votes. If he time of a legal discussion? What would you think of a votes with qualification, but contrary substantially, not jury who were permitted to pass in and out from their formally, to ihe “manner" of the election, as directed by box during the investigation of a case in which they we law, then the election is void, not in part, but wholly, for finally to pass upon the important rights of the parties? a breach of the law must affect all parties alike; it cannot Shall we, then, exact, in another tribunal, if not from a enure to the advantage of one, and the injury of another, sincere consciousness of propriety, at least in respect for because it is not the fault of one more than another. decorud, an impartial and attentive hearing; and yet, in a This brings us to the consideration of the election law śmilar capacity ourselves, manifest a total indifference to of Kentucky, which specifies the “ manner" in which all such obligations? I hope not.
elections shall be held in that State. It enacts that the I shall first call the attention of the House to this provi- sheriff of each county shall advertise, at least one month sion of the constitution. It is the first step in the authority before the first Monday in August, in every year, the upon which they take jurisdiction of the case. “Each time and place of holding the election, and what offices flouse shall be the judge of the elections, returns, and are to be filled; and that the sheriff, or other presiding qualifications of its own members.” I pass from this to officer, shall, on the day of election, open the poll-book another provision, upon which the contested election be- by ten o'clock in the morning, and continue the same fore us is to be judged. “ The times, places, and man-open at least one hour before sun set each day. It directs set of holding elections for Senators and Representatives, the county court of each county, at their session next stall be prescribed in each State by the Legislature there- preceding the election, to appoint two of their own af.” In the application of this provision to the case in is-body as judges of the election, who are to bold their offi.
H. of R.]
(May 21, 1834.
ces for one year, and a proper person to act as clerk; but before sunset? if the expression by ten means precisely in case the county court should not appoint, or any of the al len, then he has no discretion; but if, according to the persons appointed should fail to attend, the sheriff shall plain common-sense, popular meaning of that language, immediately preceding any election, appoint proper per- (independent of the strong circumstances standing in consons to act in their stead. It requires the judges of election nexion with it, such as the discretion given him as to the and the clerk, before proceeding to act as such, to take time of advertising and closing the election,) it imports, the oath prescribed by the constitution; and expressly as is often used in the business transactions of men, on declares that they shall attend to receiving the votes or before ten, then he has a discretion, of which he canuntil the election is completed, and a fair statement made not be deprived. But it is said this construction deprives of the whole amount thereof;” and requires that “the the judge appointed by the court of his right to preside, persons entitled to suffrage shall, in the presence of and having until ten to signify his pleasure to do so or said judges and sheriff, vote personally and publicly, viva not, the sheriff is bound to wait till that hour before he voce.” Unless the sheriff, or any one of the judges, shall exercices his right to appoint a judge, under the law, and know the person offering to vote to be entitled to suffrage, proceed to the election. Now, sir, the fair construction the clerk is directed to administer to him the oath that of laws, or contracts, is to make all their seeming inconhe believes he is twenty-one years of age; that he has re- sistencies stand, if possible, to give effect to its contradicsided two years in the State, or in the county one year tions, if it can be done without manifest injury to its true last past, and that he has not previously voted at that elec- spirit, object, and intention. Who does not perceive that tion; or one or more parts of the oath may be administer- this can be done, and done with the utmost propriety, ed, so as to remove the doubts of the sheriff or judge. in relation to this law? The Legislature were regulating This is the manner. Now, it is said by the Committee of the exercise of a great right of the people, and as their Elections to have been violated in two particulars. 1st. immediate representatives, in which they were as deeply That on the first day of the election the sheriff appointed concerned as their constituents; it could never have been a person to act in the place of one of the judges appointed their intention so to trammel and setter this great interest as by the court, who had not arrived; and proceeded to open that the slightest misconstruction of their object should deand hold the election before 10 o'clock, to wit: at 9 feat the right. They had as much confidence in the sheriff, o'clock, many of the voters being assembled who, in con- and the judge to be appointed by him, as they had in the sequence of the prevalence of the cholera, were anxious county court, and the judges to be appointed by them. to vote and return home. At 10 o'clock the judge ap- They were both designed to facilitate and give effect to pointed by the court appeared, took his seat, and the the great right of suffrage; and when they were guarding sheriff's judge retired. It is contended that all the votes against certain contingencies which might prevent an elecgiven before 10 should be rejected; twenty-five had been tion, they never dreamed, nay, they could not, that this polled, twenty-two of which were for Mr. Letcher; con- very caution would be the means of defeating their own sequently they have taken three from Mr. Moore's poll privileges. Could they have any such inducement to and twenty-two from Mr. Letcher's. 2dly. On the second place their rights, the most inestimable of all rights, withday of the election, the sheriff was called home by the out which all others are nothing, in such a situation that extreme illness of his wife by cholera, of which she died, their exercise could only be attained by the most vigilant and he appointed an individual to take his place till his circumspection, as well as the most careful and accurate deputy could arrive, which was in the course of one or legal learning? 'It cannot be believed. Then what is the two hours. It is also contended that all the votes given reasonable construction of this law? That specific limits in between the absence of the sheriff and the arrival of his should not be prescribed as to time, in conducting the deputy should be rejected. It seems forty-five had been election so as to impair the limitation of three days allowtaken, thirty-two for Mr. Letcher and thirteen for Mr. ed by the constitution of Kentucky, in which the election Moore. These two operations make a difference in Mr. is to be held. The time contained in that instrument no Letcher's majority, originally forty-nine, of thirty-eight law could shorten; and though, from necessity, the whole votes, and will consequently reduce it to eleven. These could not be enjoyed, yet doubtless the Legislature, ineleven and more are afterwards reduced by illegal votes, tending to afford the voters as much of it as possible, were thirteen of which are rejected because they were students anxious not so much to abridge as to prevent the sheriff of a college, situated in the district, whose parents lived from doing it; and hence it will be perceived, in every out of it, and therefore it is contended their residence instance, where he had any thing to do with it, he was rewas not such as to entitle them to vote. This point not quired to lose as little as the nature of the case would admit. being before the House at present, I shall reserve my re It was more an enlarging than a restraining consumption marks upon it for another occasion. It appears that of the three days, and every one must see the real misseventy legal votes, against which there is no manner of chief to be apprehended, was the waste rather than the objection, have been rejected because of an alleged infor- use of the allowed time. For if the people in their conmality in holding the election.
vention had believed three days necessary to a given obMr. Speaker, I shall contend that there was no infor- ject, they cannot in their legislation be supposed to be mality, and if there was, it is not of a character to be re- so idle as to deprive themselves of it even if they could ; garded; and further, that even if it ought to be regarded, and, therefore, in the true spirit of the constitution, the it is not such as to have produced the conclusion to which legislation promoted rather than restricted the grant. the committee have arrived, viz: to make it operate Under this view the fair construction would be this: says to the prejudice of one and to the profit of the other the law the election must be opened by 10 o'clock; beof the candidates. If it vitiates the election 10 any ex- yond that time the sheriff must not go; but before that tent it must to the whole. Sir, there was no informali- time we give him a reasonable discretion (as is all legal ty; the law was substantially complied with. Let us con- discretion) to begin the first day's work. We have, to sider the first objection as to the opening of the election. be sure, authorized the county court to appoint two judges The sheriff is to open the election by 10 o'clock, and to to superintend it; they, however, have a full knowledge keep it open until at least one hour before sunset. Need I that we have also granted to the sheriff the power to open enter into a criticism upon words to show that by does tbe election before ten, and, in case of a failure to attend not mean al? Will any one contend that the words of law on the part of the court's judges, we have authorized both as to the time of opening and closing the election him to appoint judges in their stead. Now, if at a readoes not confer upon the sheriff a discretion? May he not sonable time before ten, the voters wish to commence the begin before ten, and continue the election after the hour election, where is the possible injury that can result to
Mar 21, 1834.]
(H. OF R.
the exercise of their right, by telling the sheriff to appoint any three or more of the magistrates of each county, to his judges under the law and proceed to business? When preside at and make returns of all elections; and empow. the judges appointed by the court shall arrive, and claim, ers them to choose their own clerks to "attend said 'elecby virtue of their appointment for a year, the right to tions" and keep the rolls. The words “ three" has conduct the election, where is the harm to suffer them to reference to the body of magistrates in the county, being take the place of those chosen by the sheriff, who, in the generally from twenty to thirty, and not to the idea of language of the law, in consequence of their failing to at- alternation at the election. The Kentucky law means no tend, is required immediately preceding the election to more, when it says two of the body of the county court appoint proper persons to act in their stead?” This con- shall be the judges" of the election, than the Georgia struction enables the rights of all parties to stand, as well law when it declares that three of the body of the magisthose of the sheriff and his judges, as the court and trates of each county shall “preside at" and "make retheir judges; and all being officer's equally trustworthy, turns of all elections." “ Presirle" means all that is conand constituted by law as the machinery to effect a great veyed by the word “judges." The Kentucky law republic object, no election can or ought to be distrusted quires that they shall attend to the receiving of the votes, which has been held under its agency. The construction until the election is completed, and a fair statement made insisted upon by the committee leads to this singular ab- of the whole amount thereof." The Georgia law means surdity: they say the sheriff must wait till 10 o'clock, precisely the same thing when it directs its magistrates to before he can appoint bis judges, lest the other judges " preside at and make returns;" for they cannot do this might come and claim their right: then who does not unless they remain there during the whole election, which perceive they require of him to do two things in the same is to be from seven to six o'clock. To preside at, and instant of time? According to law, he must not let 10 make returns, “they" must receive the votes “and cono'clock pass; if he does, he violates the law. According tinue until the election is completed." And when it is to the committee, he must not appoint his judges till ten; urged that a Kentucky magistrate cannot make a fair statetherefore, if at that precise moment of time he does not ment of the whole amount of the election unless he remains proclaim to the people that the election is opened, and there all the while, I answer, a Georgia magistrate cannot also call upon proper persons, who are to be sworn be. "make a return” of the election unless he does the same fore they can act, to serve in the place of the absent judges, thing, for he can no more certify for the different magishe evidently fails in his duty, so that an impossibility is re- trates who have presided before him throughout the day quired of him. If, therefore, he can appoint five minutes than can the Kentucky magistrate. And so with regard before ten, the point is yielded; for every one must admit to the clerks who are required to keep the rolls. Our he can sixty. If he waits till after ten, the election is con- law requires the sheriff to attend the election. For what? trary to law. I only mention this to illustrate how unsafe, To enforce the orders of the presiding magistrates, and if pot ridiculous, it is to suffer ourselves to be governed preserve good order. He is a ministerial officer; he has by a little, contracted, narrow, lawyer-like principle of no right to exercise any judgment in the election; he may construction, in giving effect to laws designed to execute be called on to give testimony as to the qualifications of great political rights.
Unless the sheriff is expressly clothed with judi. Sir, such a rigid construction will defeat nine-tenths of cial power by some law, he is always a ministerial officer, the elections throughout the United States. I will show and therefore his presence is not always necessary in any that not a member from Georgia can hold his seat under tribunal where he may be called to aci. Where be is to this black-letter rule. The law of my State is in the fol- exercise his judgment it may be necessary, but where he lowing words: “All elections for members of the Gen-is to act ministerially or to testify, he is not necessarily eral Assembly, and for Representatives in Congress, shall obliged to be present till the occasion arises which makes be held at the court-house, or place appointed for holding it needful; and hence the sheriff at our clections, and inthe superior courts in the respective counties, and the deed at all courts, is frequently absent till an occasion de electors thereat shall vote (now) by ballot. It shall be mands his ministerial services. By the election law of the duty of any three or more of the magistrates of each Kentucky his ministerial character is not changed. His county, not being candidates, to preside at, and make re- duties, then, are precisely the same as the Georgia sheriffs; turns of, all elections for Senators and Representatives in they are ministerial, with the superadded character of be. the General Assembly, and Representatives in Congress; ing a ready witness to detect illegal roters if it should and the sheriff of each county, or his deputy, is required become necessary; and this does not imply an absolute to attend at such elections, for the purpose of enforcing necessity to be always present. I repeat, he is no judge; the orders of the presiding magistrates, and preserving to open, close, and proclaim the election, to keep order good order.” And again, the presiding magistrates and testify as to the qualifications of the voters is all that is are empowered and required to appoint three clerks to required of him by the law. While the judges and clerk attend said elections, whose duty it shall be to keep three appointed to preside are sworn, the sheriff is not. He rolls.” The law is express that “the time of opening passes no opinion with the rest of the presiding officers the elections shall be at the hour of seven o'clock' in the in any matter of dispute. The judges may admit a vote morning, and be kept open until the hour of six in the even after he has given information that, in his opinion, it afternoon, and then close.” Now, sir, I appeal to every is illegal. If he acts any where in Kentucky as a judge, member from Georgia to say whether it is not the con- it is by permission; for he has evidently no such power stant practice of our magistrates and clerks to change by law. It is only by contending that he is a judge, that places throughout the day, with others who come to re- you make his presence necessary, and this character is lieve them in the labors of the occasion; and whether we merely inferred from two expressions in the law, viz: ever open our elections till eight or nine o'clock. In what that the sheriff or other presiding officers shall open does this differ from the Kentucky law? Only in the the polls," and that "the voters shall vote in the presence mode of appointing the superintending magistrates. The of said judges and sheriff; and unless the sheriff or one Georgia law makes the appointment itself, the other of the judges shall know the person offering to vote to anthorizes the county court to do it.
be entitled to suffrage, the clerk is directed to swear the Their duties are the same, and, though expressed in dif- voter,” &c. Now, from these two clauses it is inferred ferent language, precisely the same services are required. that the sheriff is made a judge of election. Are gentleThe Kentucky law requires the county court to appoint men aware of the consequences of making the sheriff a two of their own body as judges of the election, and a judge? Judges cannot make deputies. The moment he proper person to act as clerk. 'I'he Georgia law appoints lloses his ministerial character he is unable to make a