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MAT 28, 1834.]
[H. Or R. ted, and a sir stat ment made of the whole amount there- so effulgent as not only to dozzle their imagination, but al; and requires that the said persons entitled to suffrage as to throw the positive requirements of a State law, shall, in the presence of said judges and sheriff, vote per- made according to the constitution of the United States, sonally, publicly, and viva voce.
entirely in the shade. Yes, sir, they are strict constituNoy, sir, had the sheriff a righ: before ten o'clock of tionists of the most inflexible Southern school, when they the morning of the first day, to declare that a vacancy ex. are called upon to interpret the constitution of Kenisted, and appoint a judge in the place of the one who tucky, and more than ultra tariff, internal improvement, had been appointed by the county court? This, sir, is incidental power, national bank latitudinarians, when rethe question; not, as has been somewhat artfully urged, quired to construe a law of Kentucky, made under the whether the sheriff had a right to open the polls before authority of the federal constitution. ten o'clock, all the judges being present.
Though the constitution of Kentucky provides that the I contend, sir, that the sheriff, most manifestly had only election shall be held for three days, it was clearly coma right to appoint, in the alternative, upon a certain con petent for the Legislature of that State to provide that tingency; and if any rule of law, or any principle of com- the poll should be opened at ten o'clock in the morning. mon sense is well settled, it is this, that when a power is the words “three days,” sir, are not to be literally and contingent, it cannot be exercised till such contingency strictly construed. No, sir. They must receive at our clearly and unequivocally happens. The idea that the hands a reasonable interpretation. They may be con. sheriff has a right to go to the place where the election strued to mean such portions of a day as shall consist with is to be held at any time after midnight, and finding none the convenience of the voter, and as shall secure the fair. of the regularly appointed judges there, appoint a full est and most thorough expression of the public will. If board, upon the assumption that all the judges appointed the law comes in, and fixes such an hour for the opening by the county court "have failed to attend,” derogates of the polls as shall consist with the convenience of the from, and in effect may wholly destroy, the main and voter, and the fair and orderly expression of the public primary appointing power, selected and created by the will, then, sir, this regulation of time works no abridg. Legislature, no doubt for wise purposes, from a regard, ment of the rights of the elector, and is not therefore reperhaps, to their superior fitness and qualifications. pugnant to the constitution. Constitutional provisions
The Legislature of Kentucky has certainly deemed the must necessarily be general. They cannot go into de county court a safer depository for this appointing power tails. In order to carry them into practical operation, than the sheriff. If not, it would have clothed the sheriff legislative additions are almost invariably necessary; and with full power to make the appointment in the first in- any legislative act which subserves the general interest stance, and would not have provided another source of or convenience of the parties for whose benefit, general appointment.
interest, and convenience, such general constitutional it would, then, sir, be frustrating the intentions of the provisions are made, cannot be deemed to be repugnant Legislature, to permit the sheriff, who had at most a to such provisions. In order to show the fallacy of the bere secondary alternative appointing power, to antici. argument that the electors are entitled to three full days, pate, and wholly supersede, by any premature action on and that it is not competent for the Legislature of Kenbis part, the agency of that body which the Legislature tucky to abridge the time by directing the elections to be deemed better fitted to exercise this high power of ap- held within particular hours of those days, I will only state pointment than is the sheriff. Nay, more; it would be a single example... The constitution or laws of some completely subjecting the elections to the control of par- of the States provide that each term of their supreme tisan sheriffs. The friend of a particular candidate might court shall be held and shall continue four weeks." Give have an understanding with the sheriff, to be at the court. a literal construction to this provision, and what is the house at day dawn in the morning; the competitor of his consequence? Why, suitors would within such term be friend not having had notice of this intended manoeuvre, entitled for twenty-four hours of each day to the services none of his friends are on the ground; the sheriff takes it of the judges of the court. Sir, the interpretation insistupon himself to say that the judges appointed by the ed upon by the gentlemen who advocate the claims of county court have "failed to attend," and appoints a full Mr. Letcher, is about as reasonable as the construction set of inspectors to preside at the election; he takes care attempted to be given to an act passed in the reign of that they are the adherents and supporters of his favorite one of the monarchs of England, and related by Sir Wilcandidate; the election proceeds; no one is present to liam Blackstone, in his admirable Commentaries. The challenge the voters, or gainsay the legality of the pro- case is familiar to all professional gentlemen. A statute ceedings. By ten o'clock, the usual, and, as I contend, was passed denouncing a penalty against any person who te legal time for opening the polls, two-thirds of the should be guilty of drawing blood in the public streets; rules of a town or precinct may be given in, and by this and it was by some insisted that this applied even to a operation on the part of the sheriff of " seizing time by physician who applied the lancet in the public highway the forelock," the fate of the election inay be determined to save the life of his patient. Sir, is it safe, is it just to sanction a principle by which It has, however, been contended, sir, that the Legislathe riglits both of the electors and the candidates may be ture has shot, in express terms, fixed upon the hour of exposed to such imminent danger from the partiality or ten for opening the polls; that the expression, that the corruption of a single man? The answer to this question polis shall be opened by ten o'clock, contains no prohibi. will be involved in the decision which the House may tion against opening them before that hour. gire opon the amendment of the gentleman from Penn- For the purpose of testing the validity or invalidity of sylvania (Mr. BANKS) now under discussion.
Grant's appointment, made before ten o'clock, I hold We are told, sir, that the electors, according to the that this clause or expression is equivalent to an express constitution of Kentucky, were entitled to three full days provision that the polls shall not be opened before ten to give in their votes, and that the sheriff therefore had a o'clock. Whenever a party has a time provided by law right to open the polls at any time after twelve o'clock at for the doing of an act, he always has until the latest period ngbt. Here, gentiemen are strict constitutionists. They of such time for the doing of it. The judges appointed vould here hold us to the letter of the constitution; but the county court, had until ten o'clock to enter upon wties referred to a law of Kentucky, prescribing the their duties. Let me state a few cases, sir, by way of Danner of holding the election, then, it seems, indeed, illustrating and fortifying this position. Suppose an act that relaxation seems to be a darling principle with them of the Legislature of a State should provide that the The rights of the voter, the will of the elector, are then criminal courts of each county of a State should consist
Vez. X. --269
H. of R.]
[Mar 28, 1834.
of three judges, and should be opened “by ten o'clock," sons, because there, sir, is the ingredient of reputed aubut that, upon failure of one of the regular judges to at-thority, united with the ingredient of public submission to, tend, one of the aldermen of a city in such county and public aquiescence in, his authority. But, sir, if an should take his place and officiate as one of the judges, individual should suddenly spring up in a county or diswould the alderman's right to ascend the bench com-trict, and usurp the office of marshal or sheriff, and the mence before ten o'clock? Sir, it will not, it cannot be same day he so usurps it, go abroad and execute its dupretended, that he would be other than a usurper, if he ties, I deny that the first, the isolated act of such usurper, should take the judgment seat before that time; because would protect the rights of third persons. Here, sir, is the contingency that gave birth to his right would not a total want of that acquiescence in Grant's authority, yet have occurred. Again: Suppose a statute to provide which I suppose to be necessary to the perfection of this ihat all sales of real estate, by virtue of executions, should de facto authority. His agency there, that morning at be made by ten o'clock of a particular day of the week, Lancaster, was his first agency as a judge of the election; by the sheriff of the county, but that, upon “ failure of and, if it be true that a single act of a usurper cannot inthe sheriff to attend," such sale might be made by a vest him with the character of an officer de facto, then deputy of the sheriff; would the deputy's right to act Grant, most clearly, was not invested with the attributes originate before ten o'clock, if the sale was not adver- of such officer. If a collector of a town should neglect tised for a particular hour? (as was the case here, it seems, to file his bond, and therefore his appointment might not in regard to the Lancaster election.) No lawyer, sir, technically be consummated, and he might, perhaps, be would so far expose to contempt his head, or to suspicion ousted by a quo warranto, yet payment to him would his heart, as to contend, in such case, that the officer doubtless protect the community from a second tax-gathhaving a contingent power, had a right to act before such erer; but if a usurper should steal a copy of the assesscontingency clearly and unequivocally happened. Sir, ment roll, and collect the assessments of some fifteen or these contingent powers must always be strictly con- twenty individuals before his usurpation was discovered, strued, especially when they supersede primary and an- I maintain, sir, that a payment to him would be no protecedent powers.
tection against the demands of the legitimate tax-gatherer. Much, sir, has been said about officers de facto, and Should a judge, who had not complied with all the forms the gentleman from Pennsylvania (Mr. Binney] expresses and ceremonies necessary to consummate his appointhis astonishment that gentlemen, with a knowledge of the ment, sit upon the bench term after term, and discharge doctrine of de facto authority, would make a report like judicial functions, he could, no doubt, boast the character that of the majority of this committee; and here, sir, I of an officer de facro, if he were not strictly one de jure; must beg leave to remark, that I could not comprehend but suppose a man to mount the bench for the first time, the meaning, or feel the force of all the refined reasoning who is a mere usurper, would his acts during such first of the honorable gentleman. Though he had my utmost term acquire the force and authority of acts emanating attention, during the whole of his very elaborate speech, from a de facto officer. Most certainly not, sir. yet a portion of his arguments were either so subtle, so But, sir, the distinction taken by the gentleman from attenuated, as either to baffle my mental vision, or my in- Ohio, [Mr. HAMER,] between acts that are void and acts tellectual optics were so blurred by the false lights in this that are voidable, is a sound distinction. There is a wide case, upon which they may have been too long riveted, difference between an officer who claims under an apas to be wholly unable to perceive and appreciate the pointment that is merely defective or informal, and one force of the honorable gentleman's positions. It is mat- who derives his appointment from a source that has no ter of consolation to me, however, while thus speculating power to confer the office. In the one case, the obas to the causes of my inability to understand all that the jection is rather of a formal character; in the other, it is learned gentleman said, that I am not singular in this mis. substantial and fundamental. If a man acts under an apfortune, but that other gentlemen, who can boast much pointment derived from a proper source, but not made in more perspicacity than can the humble individual who strict conformity to all the requirements of the law, his now addresses you, have also complained of their utter office may be taken from him, and his authority may be inability to comprehend all the wiredrawn reasonings-1 voidable; but if he derives his office from a source that will not say all the refined sophisms, of the honorable bas no creating energy at all, he is as perfect a nonengentleman.
tity, as to any official power, as is the source from which But, sir, permit me to ask what is this magical doctrine he derives his office as to any creative power. It reof de facto authority, which, according to the notions of sults from this reasoning, then, sir, that if I have succeedgentlemen, would seem to dispense with all legal and ed in showing that the sheriff had no right to make a constitutional qualifications in public officers? I entreat judge of Grant before ten o'clock in the morning, then gentlemen to recollect that our position is here, that if Grant's authority, derived from the sheriff, was void, not the sheriff had no right to appoint before ten o'clock, voidable, and he had no more right to receive the votes then Grant was a mere usurper, and was not clothed with than had any other elector who was at the Lancaster even a de facto authority. If the appointing power, the polls on the first day of the election. foundation, was rotten, the superstructure must cer- There is another fatal objection, sir, to this appointtainly fall to the ground. What, sir, is this doctrine of ment of Grant. The very commission (if I may call it so) de facto authority? I have not, Mr. Speaker, had time to given by the sherifi'to Grant, at the time of his appointlook into the cases, but, according to my recollection of ment, was void on its face. It appears abundantly, from them, it is this, that whenever a person assumes the du- the depositions on your table, that Grant was considered ties of an office by color of right, and the public acqui- to be appointed only “till Wheeler came.” The sheriff esce in his acts so as to induce a fair presumption in the knew then, sil, that Wheeler, the judge appointed by community that he is a legal officer, bis acts and his au- the county court, would come, and that, therefore, there thority will be sufficient to protect the rights of third was not, and there would not be, “any failure to atpersons, though his appointment to the office whose du- tend.” And here another difficulty springs up which ties he discharges may have been informally made. goes to demonstrate, most conclusively, the illegality of this Take the familiar case of a marshal or sheriff by repu. whole proceeding. According to the law of Kentucky, tation; he acts as such; the community day after day see the judge who opens the poll must close it; for the him execute process as such; he is every where recog- statute provides “ibat he shall attend to the receiving of nised as such; then, sir, any informality in his appoint- the votes until the election is completed, and a true cerment shall not prejudice the rights of innocent third per- tificate make;" &c. Now, sir, if Grant was lawfully ap.
Mar 28, 1834.]
(H. OF R.
pointed at nine o'clock, he was in for the entire election. pose of comparing them with those of other precincts The office of Wheeler was vacant, and he could not and counties; and yet it is gravely and strenuously con: enter upon his duties without a new appointment. Still, tended that the sheriff's presence at the polls can as though the sheriff bad declared Wheeler's office vacant, well as not be dispensed with; that the law confers on and had undertaken to fill the vacancy, yet, when the sheriff no judicial capacity; that the sheriff, or his Wheeler arrived at ten o'clock, Grant left the bench, deputy, can descend from the bench, mount his horse, and Wheeler mounted it under his first appointment, and scour the country to rally voters for his favorite canwhich the sheriff had decided to be vacated. Wheeler didate; that he is a mere peace officer, and that he may, certifies all the votes taken before ten o'clock, not- by way I suppose of keeping the peace, involve him. withstanding the peremptory requisition of the law that self in political broils and quarrels out of doors, during the judge who enters upon the duties of the office the progress of the election; that he may resort to the “shall attend to the receiving of the votes until the elec- conclusive argument of the sword-cane, by way of settion is completed, and a true certificate make of the tling a political dispute in which he finds himself engaged; yotes!” Could Wheeler, either in law, or in good sense that he may be permitted to over-fatigue himself by overand conscience, certify, under his oath of office, the exertion to rally voters for his friend, lie down and revotes taken when the pro tempore judge acted? Every pose his head upon his saddle-bags in a remote corner of gentleman will readily answer no; and yet, with all these the room, and that all this is a satisfaction of the requireaccumulated and most formidable difficulties staring us in ment of that portion of the law of Kentucky which the face, there seems to be quite too great a facility here declares “that the suffrages shall be taken in the presto say, Oh, all these objections are merely technical and ence of the sheriff and judges.” If the House shall be formal. The will of the voter is our only polar star and prepared to say so, then there will indeed seem to be a guide, no matter in what manner that will was expressed. disposition here to dispense with those safeguards which Sir, will not such doctrines, if they prevail, lead to anar- the laws and the constitution, for the wisest of purposes, chy--to the prostration of the rights of the elector, which have seen fit to plant around the right of suffrage. we now seem so anxious to protect--to the blasting of all But it has been urged, in excuse of the delinquency our hopes of the success of free government? If, sir, of Kennedy, the high sheriff, that his wife was sick, and the fact of the sheriff's sinning here against light and that he was therefore obliged to go home. Then, I ask, knowledge, could possibly fortify the positions for which where was Yantis, that deputy who, with Mr. Kennedy, I bave contended, then I might argue that the sheriff had alternately acted as presiding officer? The deposiknew he violated the law, and practised a fraud upon the tions tell us where he was. He was riding through the rights of the electors of the precinct where he opened country drumming up voters for Mr. Letcher. On the polls, and appointed a new judge at nine o'clock in the Monday morning, then, sir, according to the argument morsing; for it appears from the depositions that, in 1831, of gentlemen who oppose the doctrines of the report when he was a candidate for an elective office, he pro- of the majority of the committee, the sheriff is all-imtested against opening the polls before ten o'clock, and portant and all-powerful. He can open the poll when on this very occasion, on the morning of the first day of he pleases, declare a vacancy in the office of the judges the election at Lancaster, he was expostulated with, and before ten o'clock, and not only manufacture, but get urged not to open the polls before ten o'clock. Yet, in motion the whole machinery of the election, but on now, it seems he had a different view of his powers and Tuesday, when he is absent from his post, which the duties from what he supposed belonged to a sheriff when law has so emphatically assigned to him, his presence is be was a candidate a few short years ago. How true it not deemed at all necessary. Sir, it will not answer to is, Mr. Speaker, that the opinions of men depend very make one law or one argument for Monday, and another much upon the different positions in which they are for Tuesday; but gentlemen seem to find no difficulty or placed.
embarrassment in doing so. This, sir, brings me to the inquiry whether the votes And on what ground, sir, are these departures from taken on the second day of the election, when the sheriff the positive laws of a State attempted to be justified? was absent, were received according to law. Mr. v. Gentlemen in search for reasons to justify the high power said he would not detain the House long upon this branch which they now call upon this House to exercise--the of the subject, because it was so ably and fully discussed power of nullifying and disregarding the exactions of a in the printed argument of Mr. Moore, which lies upon State law, made in pursuance of the constitution of the the tables of gentlemen, that he (Mr. V.) deemed it United States--tell us that the rights of the electors are quite unnecessary to attempt to add much to the very above the law; that they are natural rights; that they are cogent considerations that were urged in that very able inalienable; and all these sublimated, though false notions, paper. But he might be suspected of a want of confi- do they indeed seem to be influenced by, in a case dence in this point, should he entirely omit to expatiate where we have the most unerring lights to guide us. upon it. It has been urged, sir, that the sheriff has no The gentleman from Ohio (Mr. HAMER) has triumphantly judicial powers to perform at the board, according to the refuted the idea that the rights of the voter are above the fair construction of the law of Kentucky. Sir, this is an law and the constitution, or that they belong to us in a entire mistake. According to my understanding of the state of nature. I am surprised, indeed, to hear such lax, he has very bigb and important duties to perform at disorganizing doctrines urged on the floor of the House the bourd. The law provides that the persons entitled of Representatives, as have been put forth by gentlemen to suffrage shall, in presence of the said judges and who oppose the report of the majority. I go, sir, for steriff, vote publicly, personally, and viva voce.” The the right of suffrage to its fullest extent. I hold that sheriff is understood to be the presiding officer at the every man is justly entitled to a vote who has any interElections, and it seems to be generally conceded by gen- est in good government, and that though the poor man flemen from Kentucky that, when the judges disagree, may not have much property that looks to Government, the sheriff gives the casting vote. An elector has a right to the laws, and to the makers of the laws, for protecto vote upon the sheriff's personal knowledge of him, tion, yet he has his life, his 'liberty, and his means of without the concurrence of the knowledge of the judges; pursuing happiness, that call for governmental protecthe oath to be administered to the elector is declared to tion, and that he ought not to be disfranchised, because be "to remove the doubts of the sheriff or judges.” his is the hard fate of the poor. No, sir. I would The sheriff is to proclaim who is elected at the close of freely accord to him the right of an equal voice in the sethe election. He is to take the poll-books for the pur-Ilection of those whose duty it is to enact laws for the
H. OF R.]
[May 28, 1834.
rich and the poor, the high and the low, the noble and I had always supposed that all legal ends in civilized the ignoble; but, sir, I cannot yield to the idea that, high communities, and under free and constitutional Governand invaluable as is this right of suffrage, it is a right ments, were to be attained by lawful and constitutional above the laws and the constitution, and that, in order means; and that it is better, far better, that the end to give effect to it in a particular case, those laws and should sometimes be lost than adopt the more than Van that constitution, which were designed to save it from dal heresy, that the “end justifies the means. savage licentiousness on the one hand, and aristocratic Mr. VANDERPO EL aving concluded his remarks-encroachment on the other, may be trampled under foot. Mr. POPE, of Kentucky, rose, and addressed the Chair No, sir. I go for the law and the constitution, whether as follows: they define the qualifications of the voter, or prescribe Mr. Speaker: After the able and elaborate arguments the manner in which this right shall be exercised; and submitted by the parties to this contest, by the majority I cannot here be persuaded either to jump over the con- and minority of the committee, and by other honorable stitution or crawi under the law, by the captivating doc- gentlemen who have preceded me in the discussion, I cantrine, that the right of suffrage is paramount to the law not flatter myself with the belief that this House will be and the constitution. No, sir. This right, inestimable much interested with the views which I propose hastily as it is, is indeed the offspring of the social compact. to submit for its consideration. If it were not, why all these qualifications and disquali- Had this contest arisen between two gentlemen of ficatiors in relation to the right of suffrage, with which another State than the one which I have the honor in part the constitutions and laws of the several States are so re- to represent on this floor, I should have forborne to tresplete? If this right of suffrage be one of our natural and pass on the time, now so precious, of this House. But inalienable rights, why, as the gentleman from Ohio has the deep interest which a portion of the citizens of Kenso pertinently asked, not extend it to females and slaves, tucky feel in the result of this controversy, and an earnest and all classes and descriptions of persons? Why tell desire to vindicate successfully the conclusions of my me, sir, that I must reside six months in a county, and judgment, will, I trust, be a sufficient apology for my a year in a State, before I can be permitted to exercise participating in the discussion. I regret, however, that " this natural and inalienable right," if it is so far elevated this necessity exists. I regret that the refusal of Mr. above the laws and the constitution of my country? Rely Letcher to comply with the proposition of Mr. Moore, to upon it, Mr. Speaker, that gentlemen could not have submit their respective claims again to the people, has apprehended the mischievous tendencies of their own imposed upon this House the disagreeable necessity of doctrine, when they told us, in effect, that where the pronouncing a decision between them. Unpleasant, howrights of the voter come in conflict with the laws and the ever, as that duty is, it must now be discharged, be the constitution, we, in the fulness of our affection for the consequences what they may. And in discharging it, we elective franchise, with most vain-glorious notions of un- should recollect that the country requires us to discard all defined and undefinable, unlimited and illimitable equita- feelings of a personal or party nature, and decide this case ble powers, can break through the sacred barriers of the according to the constitution and laws of the land. It is law and the constitution, as if they were the merest cob- by this standard the respective claims of those gentlewebs, interposed to obstruct the career of giants. men are to be tested; and, if it be fairly done, no one has
It has been said, sir, that the rights and the will of the a right to complain. voters in this case, at Lancaster, who voted before ten But here, Mr. Speaker, I must protest against the efo'clock on the morning of the first day, during the ab- fort which is made by honorable gentlemen to convince sence of the sheriff, would be wholly defeated if we the country that a struggle is made to force the minority should adopt the rules for which the majority of the com-candidate into a seat in this House. What justification mittee contend. Sir, this argument of possible and par-exists for such a course? Has not a committee, composed ticular mischief, from an adherence to the laws and the of gentlemen selected for their capacity and probity, been constitution, is always a dangerous argument. It might industriously engaged, during this session, in ascertaining as well be said, that, because the rains of heaven that who is the rightful representative of the 5tli congressional refresh and fructify the earth sometimes destroy valuable district of Kentucky and have not five out of seven relives, sweep away the most costly edifices, and desolate ported that Thomas P. Moore has received a majority of whole regions of country, therefore all refreshing all the legal votes polled in that district; and that, too, showers might better be dispensed with. Every hu- without rejecting any votes but such as are spurious and man invention and institution, sir, however salutary in illegal. This being the case, what authority exists for the its general effects, may work occasional and partial mis- assertion that there is an effort made to force a minority chief. This appears to be an order of nature. Yes, candidate into this House? Have not five honorable gensir, it is incident to the imperfection of human wisdom; tlemen of that committee informed us in their report but it must be remembered, sir, that partial evil is some that, after deducting bad votes given on both sides, times the parent, and sometimes the daughter, of general (without excluding the votes given before 10 o'clock of good; and that is indeed a weak and short-sighted phi- the first day, and those given on the second day, in the losophy that would repudiate à law or rule which is salu- absence of the sheriff,) Mr. Letcher is left in a mitary in the main, because it may, by possibility, work nority? The committee has been long, and patiently, and occasional and partial injury.
sedulously engaged in this duty. The presumption is, But, sir, if we can fancy evils that may flow from the that the five are correct, and the two are incorrect in their observance of the principles and rules for which the ma- respective conclusions; and I would place more confidence jority of the committee contend, can we not imagine in their opinions than in those of other members who have some that may flow from the other doctrine? Is there not had an opportunity to give to this subject the same not danger, most appalling danger in the doctrine, that, sifting, searching, scrutinizing investigation. if the will of the voter is only expressed, it matters not I have examined this case, Mr. Speaker, with much through whom it is expressed; that the agents pre- care, and am inclined to the opinion that Mr. Moore is the scribed by law to secure the fair and orderly expression rightful representative of the fifth congressional district of the popular will may be dispensed with; that whether in the State of Kentucky. In truth, I think even the maJohn or Richard be the agents of the law, or self-con- jority of the committee have done him injustice. In my stituted agents, to receive the votes of freemen, is im- humble opinion, they have refused to reject suffrages material, so that the will of the voter is only expressed? given to Mr. Letcher, wbich the constitution and the law, Will not this lead, sir, to a perfect mobocracy? Sir, reason and propriety, required should be excluded. 1 Mar 28, 1834.]
[H. Or R.
will not detain the House to assign repeated individual latter? Or the latter on the mute and unintelligible signs instances, but will stop to refer to three votes given to of the former? But, sir, I will pursue this branch of the Mr. Letcher which the committee held to be good. These subject no farther. I will leave it to the honorable genvates were given by persons who were deaf and duml). tleman to say whether one who is thus bereft of such imIt may be said that it is hard to add civil to natural dis. portant natural organs can be a qualified voter in Kentucky qualification--that it is unjust to strip them of the elec. until the laws and constitution of the State are altered or tive franchise. Sir, no man feels a livelier sympathy for amended. such unfortunate beings than myself. No one would go I will now proceed, Mr. Speaker, to inquire whether farther to add to their comfort and happiness, or to illume the majority of the committee were correct in excluding the changeless midnight of their mind than myself: but from the count the votes of ten theological students at neither compassion nor sympathy can alter the constitui-Danville, Kentucky, nine of whom voted for Letcher and tion and the law. I consider myself sworn to test this one for Moore. On this subject, Mr. Speaker, I differ, question by a legal touchstone. I feel bound to inquire, tota cælo, from the honorable gentleman from Pennsylvanot what I could wislı, but what is the law. Both the con- nia, (Mr. BINNEY.] He thinks those students derived a stitution and the law of Kentucky imperatively declare right to vote at Danville from that clause in the constituthat the persons entitled to suffrage shall vote " personal- tion of Kentucky which provides that in all elections W, publicly, and viva voce." Although a previoiis clause for representatives, every free male citizen (negroes, of the constitution extends that great privilege to all free mulattoes, and Indians excepted) who at the time being male persons above the age of twenty-one years, except hath attained to the age of twenty-one years, and resided Indians, negroes, and mulattoes, yet a subsequent clause in the State two years, or the county or town in which of the same instrument restricts this right, by prescribing he offers to vote, one year next preceding the election, the manner in which it shall be exercised.' This latter shall enjoy the right of an elector. But no person shall clause is of equal if not of superior obligation with the be entitled to vote except in the county or town in which first; and if it shall turn out that one who claims the right he may actually reside at the time of the election." In of an elector cannot vote viva voce, he is not entitled to it. settling this point correctly, we must first ascertain the Now, I would respectfully inquire, if it is not physically constitutional meaning of the word residence. Accordimpossible for one deaf and dumb to vote publicly, and ing to my understanding, it is not a mere continuous "viva voce." !le has no living voice; his lips are sealed breathing for one or two years preceding an election at in silence; he is mute as the voiceless grave; he cannot the place where it is held; but it must mean his settlecomply with the constitutional requisition of voting vira ment--liis home. He must not have gone there with the toee. It is his misfortune, not my fault. If fault it be, view of kaving the place as soon as he accomplished a it is in the constitution. He cannot vote by ballot, nor by tixed and isolated purpose, such as obtaining a collegiate proxy.. Both of these modes are interdicted. The only education, but he must have gone there "animo maremaining one is a "viva voce" vote, and that it is physi- nendi”—with a view of settling there; or, having changed cally impossible for him to give.
his purpose, he must be, in the broadest sense, a citizen But, Str. Speaker, I am not left to the unsupported of the place. He must consider it his actual home, and conclusions of my own mind on this subject. One of my not a temporary residence or habitation, to be abandoned honorable colleagues, (Mr. HARDIN,] while a member of as soon as he accomplished the object for which he went. the Senate of Kentucky, presented to that body a report Let me inquire of honorable gentlemen from Connecticut in a case of contested election between Williams and or Massachusetts if they would consider a Kentuckian Mason. From that report I extract the following de- who had gone to Cambridge or Yale College to obtain an cision: "James Yocum voted for Williams, decided by a education, a citizen of either of those States, and as such majority of the committee to be illegal, because he was entitled to participate in their elections. Let me inquire deaf and dumb, although proved to be intelligent. The of my honorable colleagues if they would consider a citicornmittee was partly influenced by some proof tending to zen of Virginia, who had gone to Kentucky with the view show he was overreached.” Now, sir, although the com- of investigating land titles and claims, and in consequence mittee were partly influenced by some proof tending to thereof haci remained in the State continuously for two show he was overreached, yet they expressly declare that years, a citizen of Kentucky, and as such entitled to vote they considered it illegal because given by one who was at our elections. Certainly not, sir. Yet, if the significadeaf and dumb.
tion which gentlemen wish to attach to the word resiMr. Speaker, I agree with my honorable colleague that dence be correct, he would be entitled to vote. Sir, the this case should be decided according to the constitution incaning which gentlemen propose to give to that word and law of Kentucky, and the local expositions of both. is not a popular meaning; nor is it a technical or legal And I respectfully inquire of honorable gentlemen if I meaning, as I will now proceed to show. In Coxe's have not proved from the constitution and law of Ken. Digest, title Domicil, the following principle is laid lucky, and the legislative exposition just cited, that a per- down: son who is deaf and dumb cannot vote in Kentucky. What
tions this subject, the principal point to more is wanted, sir. Is it necessary to show that it is be considered is the animus "manendi; and courts are to proper and expedient that the constitution should be ad-clevise such reasonable rules of evidence as may establish hered to! Is it necessary to say to honorable gentlemen the fact of intention. If it sufficiently appear that the inthat if this feature of the constitution be wrong, let it be tention of removing was to make a permanent settlement, altered by amendment? Can gentlemen see no motive fo: or for an indefinite time, the right of domicil is acquired This constitutional disqualification? May it not liave been by a residence of even a few days. intended to prevent fraud and overreaching? Sir, it has “An inhabitant or resident is a person coming into a been since the constitution of Kentucky was formed that place with an intention to establish his domicil or permathe means of educating the deaf and dumb have been dis- nent residence, and, in consequence, actually resides. covered or applied. Take one who can neither read nor the time is not so essential as the intent, executed by write, how is he to be sworn? Are you to find an inter- making or beginning an actual establishment, though it is preter and swear bim correctly to unfold the hidden pur- abandoned in a longer or shorter period." pose and meaning of the voter? If so, this difficulty pre- Vattel also says, that the “domicil is the habitation dents itself: in case of perjury, who is to be prosecuted, fixed in any place with an intention of always staying the voter or interpreter? Who is to be the witness there.” Thus we see, sir, that time is not so essential as Could the former be convicted on the testimony of the intent--and that a man cannot be esteemed a citizen or