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H. OF R.]
[May 28, 1834.
resident of a county or State if he goes to either with the pursuit of a collegiate or clerical education Certainly intent of abandoning it after having accomplished a par- not, sir. It would be his proper place of voting. Yet a ticular object; and has such intent at the time he claims a man cannot have a right to vote in two counties at the right to vote. But, sir, one of my honorable colleagues same time. He cannot place himself in such a position [317. JARDIN) has asserted that this case should be de- as to have the option of selecting the county in which he cided according to the constitution and law of Kentucky, will exercise the right of suffrage. I may be told that and the expositions, judicial and legislative, there given to these students performed militia duty--that they paid both. Sir, I agree to this, and will refer my colleague to the town tax in Danville. This may be so, sir. But it does case of Easton vs. Rucke:, decided by the appellate court not, ipso facto, make them citizens of Mercer, or prove in that State, where the following language is held: they are such. These are duties to which men are often
"A citizen of Kentucky may have a temporary resi- unrighteously and illegally subjected, and it may have dence out of the State, and, if that be the case, it does been so in the instances alluded to. It does not follow, not follow that the federal court has jurisdiction of his sir, that, because a man is subjected to some of the duties controversy with a resident citizen of the State; for such of a citizen, he therefore has the rights of a voter. Betemporary residence will not divest him of his character, cause, if that were the case, every man liable to jury seror his rights, as a citizen of the State.
vice would be entitled to vote, and we all know that the “ The term non-resident has frequently occurred in the very moment a man moves into Kentucky, he can be calldecisions of the court of appeals of Kentucky, on ques- ed on to serve on a jury--ay, sir, and be compelled to tions touching the jurisdiction of the general court; and muster, and list his property for taxation. It is worthy it has always been considered that the meaning was, one of remark here, Mr. Speaker, that one of those students who had his domicil out of the State, and not one who left college during the election, and went to the county had a simple habitation in Kentucky.”
in which his father resided, and voted there for Mr. LetchI would now inquire of my colleague if a man who is er. The minority hold this to be a good vote. Now, sir, nol a citizen of Kentucky, has a right to vote in that how can he be entitled to vote in the county where his State? To this he must respond in the negative. But in father lived, and at Danville also? I confess I cannot unthe passage just quoted, the court say, “a citizen of derstand it, and will leave it to the ingenuity of other genKentucky may have a temporary residence out of the tlemen to determine. I therefore hold, sir, that the votes State," and yet not lose his rights or character as a citi- given by those students were very properly rejected by zen. If, then, he does not lose his rights and character as the majority of the committee. There may be some ina citizen by a temporary non-residence, say of two years, convenience in adhering to the law in this instance, but how is it possible'a man can acquire those rights hos a there is much more in abandoning it; for I can very reacorresponding mere residence of two years, when he dily perceive that if students at colleges are allowed to takes up a temporary habitation in the State without the vote in counties where they may go or be sent for educaview of remaining, or making a home there? But I will tion, you may place, and will sometimes place, the rights refer the honorable gentleman to his own opinions, as found and interests and voice of a majority of the county enin the case of Williams and Mason, before cited. Fro:n tirely under their direction and control. the report, drawn up by my colleague, I make the fol. I have now arrived, Mr. Speaker, at points in this cas lowing extract: “Stephen Ellison, alleged to have re- which, I confess, I approach with much reluctance and moved to Texas, was gone there five years, but a change great delicacy. I would have preferred to avoid a deciof residence not proven to the satisfaction of a majority sion of them. But inasmuch as one of the minority of the of the committee."
committee, by the amendments he has proposed to the Now, if Ellison was held a good voter, although absent first resolution reported by the committee, has placed this five years, because it was not satisfactorily proved that he House in such a position that a decision thereon seems had intended to change his residence, how is it possible inevitable, I must claim the further indulgence of the that the votes of the Danville students can be adjudged House, while I proceed to show the reasons for the vote good, when it is positively proved that they went to Dan- I am compelled to give. The question now to be discussville for the sole purpose of obtaining a theological edu- ed is, Shall the votes given at Lancaster, in Garrard cation, and did not intend to remain there?
county, on the first day of the election, before the arrival I have been informed of another case, where the prin- of the judge appointed by the county court, and also those ciple for which I contend was distinctly asserted and re- given on the second day, in the absence of the sheriff, be cognised. Samuel H. Woodson, Esq. was returned a rejected by this House? Sir, it is not necessary for me to member of the Legislature of Kentucky, from Jessamine say whether I would have contested an election on this county. His right to the seat was contested on the ground. It is useless for me to repeat the wish that Mr. ground that he had not resided in the county of Jessamine Letcher had consented to refer the case again to the peofor the whole year next before the election, but had re- ple, when it was proposed by Mr. Moore. It is enough sided part of the time in Fayette county. The lower for me that this case must now be decided according to House of the Legislatu considering Jessamine to be the constitution and the laws. If the constitution and the the place of his actual residence, very properly decided laws are wrong, let them be changed. But, so long as that he was entitled to a seat; yet if they had settled it they exist as they are, let them be enforced. Nor let according to the principles now advanced on this floor, there be a hue and cry raised that the voice of a majority of he would bave lost his seat.
the people is about to be defeated by this House. There After these references to the constitution and laws of may be no foundation for such useless clamor. A majority Kentucky, and the decisions and expositions, legislative of ihe committee (a committee distinguished for its intelliand judicial, of the State, how can it be seriously con- gence and probity) have informed us that Mr. Moore has tended, Mr. Speaker, that the students of theology at received a sufficient number of votes to elect him, withDanville, who had gone there from other counties ihan out rejecting the votes now under consideration. Mercer, and other States than Kentucky, are qualified mon courtesy, we should confide in the correctness of voters? Let me inquire of honorable gentlemen, if one their report, until it is shown to be erroneous.
It may of those students had returned to his home, or to that of not, therefore, violate the rights of Mr. Letcher, or the his father or mother, and had claimed the right to vote higher rights of the people, to settle this question at this there, if he would not have a clear right to exercise that time. It may subserve a valuable purpose hereafter. I privilege? Could, or would, a judge of election dare shall, therefore, without further delay, proceed to discuss rcfuse him on the ground that he bad been absent in the this point; and, first, as to the votes given on the second
Mar 28, 1834.]
[H, OF R.
day, in the absence of the sheriff. That part of our law point of time for their attendance must be assumed. Shall which refers more immediately to this point, reads thus: it be after midnight of the previous day, or at daybreak, "The persons entitled to suffrage shall, in the presence or sunrise, or six, seven, or eight o'clock of the first of said judges and sheriff, vote personally, and publicly, morning of the election, or shall it be at ten o'clock? Can eive roce." Upon the authority of this clause of the law, it be contended, sir, that a sheriff shall have the dangerthe majority of the committee rejected thirty-two votes ous power of proceeding to the court-house at sunrise or given to Mr. Letcher, and thirteen given to Mr. Moore. sooner--that he shall then decide that the appointees of T'hey did so on the ground that the law required the elect- the county court have “ failed to attend," and, in violation ers to vote in the presence of the sheriff. They consid- of all law, and reason, and justice, foist into authority apered that the requisitions of the law could not be dispensed pointees of his own, in contempt and disregard of the prewith. Although, Mr. Speaker, strictly viewed, it may vious appointments of the county court? Shall he have have been the duty of the judges to have abstained from the power thus to create a vacancy that he may fill it? receiving votes until the arrival of a deputy sheriff to sup- Shall the judges appointed by the county court be comply the place of the sheriff, who was necessarily absent on pelled " to camp upon the ground" to avoid a surprise account of the illness of his wife, yet, inasmuch as this and ouster by the sheriff? Shall they be compelled, at omission was the result of a casualty unforeseen, and the “crowing of the cock,” te abandon their chambers, over which human agency could have no control, I am in- speed with precipitation to the court-house, take their clined to vote against the majority of the committee in seats, and there remain to prevent the sheriff from declathis particular. This proceeds from an unfeigned desire ring that they have failed to attend? Or shall they have to effectuate the popular will, whenever it can be done con- the right to attend ai the usual time, and in the usual mansistently with the law and the constitution. But, in rela- ner, to conduct a legal and regular election? Shall the shetion to the votes given on the first day, before ten o'clock, riff have the dangerous right of declaring a vacancy at any in the absence of the judge appointed by the county hour of the morning, and to fill it with the connexions, parcourt, I entertain a very different opinion. What, sir, is tisans, or instruments of himself, or a favorite candidate? the language of the law on this subject? It is this: “ The Or shall he be compelled to wait until ten o'clock to see justices of the county court shall, at their court next pre- whether or not the legitimate judges have failed to attend? ceding the first Monday in August in every year, appoint Sir, the latter course is obviously the proper one. There two of their own body as judges of the election then is no danger, and can be none, in adopting it. It will next ensuing, and also a proper person to act as clerk." afford ample time to conduct and complete a full and fair
"And in case the county court shall fail to make such election. But, in the former course, I can see serious appointments, or the persons appointed, or any of them, fail and numerous evils. It is pregnant with flagrant and cryto attend, the sheriff shall, immediately preceding every ing injustice. It can be prostituted to subserve the vilest election, appoint proper persons to act in their stead.' purposes. It will open a field where can be sown, with
“The sheriff, or other presiding officer shall, on the broad cast, seeds of the rankest corruption. Let me not day of every election, open the polls by ten o'clock in the be told, sir, that this mode of reasoning is founded upon morning."
the presumption that some sheriffs are dishonest. I do "The judges of the election and clerk, before they not mean to fulminate such a charge against them. So far proceed to the execution of their duty, shall take the oath as they are known to me, they are, in the general, men prescribed by the constitution. They shall attend to the of integrity and honor. But I do mean to say, that-receiving the votes until the election is completed, and a which I have sorely felt--sheriffs have sometimes betted fair statement make of the whole amount thereof." large sums on the result of elections; sufficient, for aught
In pursuance of this law, the county court of Garrard I know, to stimulate their passions, poison their judgcounty appointed Isaac Marksbury and William Wheeler ment, and warp their sense of duty. Now, sir, if in such to act as judges of the election. Marksbury became a a case, the sheriff should exercise the monstrous power candidate for the Legislature, and declined serving as a with which it is contended the law has invested him, judge of the election. But did Wheeler decline serving? what will become of the boasted purity of elections, and or, in the words of the law, did he “ fail to attend?” For the sovereign voice of the people?" it will be remembered that it is only in case of a “ failure But, Mr. Speaker, suppose that honorable gentlemen to attend," that the sheriff has a right to appoint a substi- are correct in the proposition that the sheriff had a legal tute judge. The contingency must happen before the right to appoint Grant before ten o'clock--then I contend power intrusted to the sheriff could be exerted. The that he was a judge for the whole election, and Wheeler question arises, When can this contingency be said to had no right to take his seat as judge at ten o'clock, and happen! I answer, at ten o'clock, and not before. I thereby eject Grant. If Grant was a legal judge, Wheelmaintain that, if the judges attend by ten o'clock, they er was not; and if the latter was, the former was not. have not failed to attend to hold the election as required Gentlemen may take either horn of the dilemma they by the provisions of the statute just cited. And, as a ne- please; either the votes taken before Grant were illegally cessary consequence of this position, I maintain further taken, or those taken before Wheeler were. Wby? that, if the appointees of the county court do attend " by Because the law does not contemplate the appointment of ten o'clock," they bave a right to commence and proceed two sets of judges--the one appointed by the county with the election, and that the previous acts of the ap- court and the other by the sheriit, to act alternately in pointees of the sheriff are necessarily invalid and void. the progress of the election. The law says, the judges
In examining the election laws of Kentucky, Mr. Speak-shall attend to the receiving the votes until the election er, it can be easily perceived that the Legislature were is completed, and a fair statement make of the whole unwilling to intrust this important and formidable power amount thereof.” Did grant do this, or did Wheeler do to the sheriff, if it could be conveniently avoided. 'With it? Neither did, sir. Yet the law is imperative that it this feeling, they made it the duty of the county court to shall be done. How are the votes certified, sir? Does appoint two of their own body to officiate as judges of the Grant certify to the correctness of the votes taken before election, and, with evident propriety, conferred upon the him? No, sir; Wheeler does it. lie undertakes to cersheriff the power of appointing only in case of absolute tify, not only to the votes taken before himself, but to necessity--only in the event that the county court should those taken before Grant also. It can be hardly necessary fail to make an appointment, or in case their appointees to say, sir, that the proceedings of the sheriff, in making should fail to attend. Now, sir, let me inquire at what this appointment, were a palpable departure from the nelite the judges can be said to have failed to attend? Some cessary and substantial forms and requisitions of the law.
H. Or R.]
[May 28, 1834.
Its Mr. Speaker, it is not even pretended that Grant tempted to expose the fallacy of these positions by stating was appointed to act as a judge during the whole election. extreme cases. I do not recollect them all, but one put It is positively proved that he was appointed to act until by my colleague [Mr. Handix] just occurs to me. He Wheeler arrived, and no longer. And when Wheeler inquires, if a judgment of a court would be void if pro. did arrive, he took his seat as a judge; not by virtue of nounced by the judge in the casual absence of the sheriff an appointment by the sheriff, but by virtue of his ap- from the court-house. Assuredly it would not. But let pointment by the county court. Sir, we are not left in de state a more apposite case. Would not such judgment the dark as to the sherif's understanding of this law. It be void if pronounced by a judge not appointed and comis proved by Judge Boyle that this sheriff was once a can- missioned as required by law? Certainly it would. But, didate for the Legislature in opposition to him, (Boyle,) Mr. Speaker, I will detain the House no longer. It was and that the former successfully protested against the painful to me to bave troubled it at all. I should not have opening of the polls before ten o'clock. We also have done so, if it could have been safely avoided. I did not the understanding of several of the citizens on this sub- wish either my motives, my views, or my votes to be
misject; one, or perhaps more, of whom advised the sheriff construed. I was sensible that the welkin would be made not to open the polls before Wheeler arrived, and inform- to ring with denunciations of those who think and vote as ed him that Wheeler would certainly arrive in time. Yet I shall on these questions. We have been told already the sheriff disregarded all this, and opened the polls, al- that the public will has been violated--that an effort was though Wheeler did arrive in time, and commenced the made to stifle the public voice--that we were adhering duties assigned bim by the county court.
to forms, to shadows, and not to substance. Sir, no man And now, Mr.Speaker, I must be allowed to dissent from entertains a more profound veneration for the sacred right an opinion advanced by two of my colleagues, (Mr. Han- of election than myself. No inan would bow sooner than Dix and Mr. MansaALL.] They both stated, in substance, I would to the will of the people. I would ever defer to that the right to vote was derived from the constitution of their suffrages, but then they must be genuine, they must Kentucky--that the act of the Legislature was passed to not be spurious. I will ever carry into effect the fiat of facilitate that right, and not to restrict it--that the Legisla- popular will, whenever it is expressed according to the ture could not, therefore, restrict the right to vote to ten constitution and laws of my country. More than this I o'clock of Monday, inasmuch as the constitution had al- an.satisfied an enlightened people will not require me to lowed the whole day for carrying on the election. do. They have sufficient intelligence to know that those
Tlave my honorable colleagues overlooked the fact that who framed our constitution and laws, designed them for the right to vote for members of this House is derived, the protection and security of our liberties. That it is not from the constitution of Kentucky, but from the con- necessary to adhere to them--that these apparent restricstitution of the United States? And that that instrument tions on the enjoyment of the elective franchise were gives to the Legislature, and not to the constitution, or thrown around it as muniments for its protection. And I those who framed it, the right to prescribe the time, place, bave no doubt they will believe as I do, that the invaluand manner of voting. The fourth section of the first ar- able privilege is more endangered by an abandonment ticle of the federal constitution says: “ The times, places, and disregard of those substantial forms and requirements and manner of holding elections for Senators and kepre- which the constitution and the laws have imposed, than sentatives, shall be prescribed in each State by the Legis- by a proper and steady adherence to them. Under these lature thereof; but the Congress may at any time, by law, impressions, Mr. Speaker, I shall vote for Mr. Moove to make or alter such regulations, except as to the places of take his seat, unless, in the course of the discussion, I shall choosing Senators."
be satisfied he is not entitled to it. Thus we see that the position of the gentlemen is ex When Mr. Pope had concluded, pressly repudiated by the constitution itself, and will, I am Mr. DAVIS, of Kentucky, rose and said: sensible, upon a moment's reflection, be abandoned by Mr. Speaker: I have been a long time in a bad state of themselves as wholly untenable. I therefore maintain health; I am now feeble, and my voice is weak.. I had that the Legislature of Kentucky have a right, under au- intended to give a silent vote; but allusion has been so thority from the federal constitution, to restrict the time often made, in the progress of this debate, to the laws of of voting for members of the lower House of Congress, Kentucky and her members here, that, as one belonging within any hours of any day, so long as the Congress shall to her delegation, I feel it an indispensable duty devolvpermit it; that it is no violation of the constitution of Ken-ing on me, to submit a few remarks. I am not in the tucky so to do; and that if this power be abused, the only habit of playing the orator, and least of all at this time; corrective is to be found in the national Legislature. and what I intend to say will be more in the character of
In attacking the report of a majority of the committee, an explanation than a speech. my colleague (Mr. MARSIIALL] undertakes to definean elec So much excitement has been produced in the State of tion: he says that an election is the result of the choice of a Kentucky, about this election, that it may be thought by majority of qualified voters. Sir, this is an incorrect defini- some the feelings of the people had been communicated tion of an election. I take it to be the “ will of a majority to the members of the State sitting here, and that they of qualified voters, expressed according to law.” If it be would act more from the impulse of feeling than the imnot expressed “ according to law,” it is no election. For partial dictates of a cool and deliberate judgment. To example, if votes are given on a day, at a place, and in a quiet these unjust suspicions, if any such should be entermanner not authorized by law, it is no election. And no tained, is the leading motive which induces me to rise matter how honestly the public will may be expressed, if it and give the reasons for the vote which I am now about is not done in conformity with the substantial and necessary to give; and what I say will be more for my own vindicarequirements of the law, it cannot be carried into effect tion than to convince the members of this llouse. without a violation of the law; and although the honor. Mr. Speaker, many gentlemen who have given their able gentleman from Pennsylvania [Mr. BINNEY) is correct views at large upon the subject, occupy, indeed, a narrow in stating that the time, place, and manner of holding elec. ground; they seem to think that this contest is a question tions constitute no part of the qualification of the electors, alone between Mr. Moore and Mr. Letcher, and that they yet, if the gentleman will recur to the law, he will find are the only persons interested in the matter. ihat it does constitute a part of the qualification of the votes, think the great questions are the rights of the people of and that it is as necessary that there should be an officer the fifth congressional district of Kentucky... What is qualified to receive a vote, as it is that there should be an their will, and who have they said shall represent then elector qualified to give one. Sir, gentlemen bave al- | They are the individuals more vitally interested, and to
them should our views be directed, as the polar star to voters of the district? But it is now contended that this guide us to a just conclusion. The elective system was is not to be the rule of decision; that we must resort to a instituted for the benefit of the people themselves, not strict construction of all the forms of the laws of Kenfor the benefit of the representative; and on this great tucky, prescribing the manner of elections; that we must principle alone can we arrive at a correct result in our now go into the quibbles of lawyers, technicalities, and deliberations. If we had only to give the preference to a hair-splitting distinctions, and substitute form for subfriend, we could then indulge in feeling. If we had only stance, at the sacrifice of justice. Yes, I say it is gravely to make a choice of one for talents, worth, experience, contended that we must strictly follow every unnecessary and public virtue, our decisions would be quite immate-form contained in the election laws, even at the expense rial, as both of those individuals possess these qualities in of justice; strict construction must be followed down to 1 very eminent degree. But we have higher duties to the very letter. What says the gentleman from Georgia? perform: acting, as it were, as a great tribunal, bound [Mr. Jones.] 1st. The manner of holding the election by mighty obligations to render to freemen an impartial must be strictly complied with.
2d. The forms preverdict, those who are blessed with the happiness of a scribed by law are as necessary to be observed as the Government wbich secures to them a free choice of pub- qualifications of voters; and the one can as well be dis. lic servants; and then, I might say, we are bound by an pensed with as the other. 3d. The election in Garrard obligation paramount to that, again, to do strict, unflinch-county, in part, was not conducted in a legal manner; ing justice to ourselves.
and, to that extent, the votes given are illegal, and cannot Mr. Speaker, I was sorry, very sorry, some short time be counted. The gentleman from Ohio, (Mr. Hamer,] ago, when the gentleman from Georgia, (Mr. Wilde, ) in also, says that, if the election is not conducted according the course of his remarks, made use of some expressions to the forms prescribed by law, the election is absolutely conveying the idea that this contested election would be void. These gentlemen were on the committee of invesdecided by this House on party grounds. This is an ac- tigation, and sanctioned the majority report, which decusation unworthy of the gentleman; and I, for one, repel clares that Mr. Moore is entitled to the seat. The House the charge with feelings of perfect indignation. I do not is now called upon to give by its decision a construction wish to express myself so warmly as to give uffence; but, to the election laws of Kentucky, which, I bope, will be in justice to myself and the House, I must say that such done according to those sound principles which will fairly remarks were wholly unnecessary, unjust, and uncalled meet the justice of the case.
As it is contended that we for
. The honorable gentleman should remember that must be governed by legal rules, and try the question we are now acting under the sanction of a most solemn involved as if it were in a court of law, permit me, in the oath; the eyes of the nation are now upon us; we have first place, to call the attention of the House to a writer high trusts and important duties to perform; much is re- whose authority is universal—I mean Sir William Blackquired at our hands, and I hope to God we will acquit stone-who says there are two modes of construing statourselves as becomes the representatives of an enlightened utes—that is, liberally and strictly: He says statules and virtuous people. If, unfortunately, the charge shall penal in their character are to have a strict construction, become realized, and the question be decided not on prin- and those to prevent frauds a liberal one. Now, by which ciples of justice, but alone on party grounds, no one will of these modes is an election law to be construed? Cerregret it more than myself. I shall regard such an occur- tainly not as a penal statute. You would not try a voter rence as a sure indication that the days of our republic as you would a criminal, or scrutinize the forms for listing are rapidly drawing to a close, and that virtue no longer votes as you would a venire panel, but give such liberal dwells as the inmate of these walls. How would it look, construction as would secure the elective franchise and (I am sure not very well,) on a call of the yeas and nays, the liberties of the people; and I am sure no candid man, to see all of a certain class of politicians vote for Mr. on mature reflection, will contend for a different doctrine, Moore, and all of the other class vote for Mr. Letcher? so repugnant to justice, reason, and the law itself. This A political line thus to be drawn, instead of acts record- is a view of the subject which I dislike. I am very unwiling justice, duty, honor, would be a spectacle indeed, ling to be driven to the necessity of presenting a legal prima facie evidence, and cause the worlu to doubt. If argument to the House. I think we can subserve the men can reconcile it to their consciences, a little inter- principles of justice on a broader scale; but, since gentle. mixture, in order to quell these otherwise just suspicions, men urge me to the task, I cannot avoid it. Cases have would be much desired. I am sure when I say no mem- been cited of decisions heretofore made on many contestber of this House will act so corruptly as to give his vote ed elections, coming from other States; they relate par. alone on party grounds, no one will avow
it-none dare ticularly to the statutes of those States, and can form no The gentleman must readily see the impropriety precedent for the contest now before us, as has been of his insinuations; but, perhaps, there may be some clearly shown by my worthy colleague, (Mr. MARSHALL.] excuse for him. I understand that he is a man of litera. It is unnecessary that I should occupy the same ground ture and taste; and we must suppose, when he introduced which has been so fully and ably discussed. I will only the name of Sir Horace Walpole, it was only one of his add that this is a new case, and the first to be settled from classical allusions-nothing more than the effects of fancy the State of Kentucky; and the first construction is now and the overflowing of the imagination, which is better to be given to the election laws, by the decision of this than the overflowing of the gall; and, from the smile House. which seemed to play upon his countenance at the time, The gentleman from Georgia, (Mr. Jones,] in his labor. he could not intend to offer any disrespect to the House, ed speech, contended most strenuously for strict construcOF Wound the feelings of any member here. I therefore tion, which, from the authority I have quoted, cannot be forgive him, and hope that every other member will do sustained on any principle of law or reason. But what is the same.
the doctrine of the gentleman himself, as contained in this When this subject was first brought before us, I looked very majority report which I now hold in my hand? I will into the constitution, which declares that each House shall read a passage: be the judge of the election returns and qualifications of “Several persons were objected to by Mr. Moore beits own members; and, being myself a new member, I cause they were deaf and dumb. By the constitution of thonght, from the power given to the House by the con- Kentucky, in all elections by the people, &c. the votes stitution, that the only inquiry would be-has the election shall be personally and publicly given, viva voce. Mr. been conducted fairly and fully, and which of the con- Morehead, David Arnett, and John Withers, voted for tending parties has the voice of a majority of the qualified Mr. Letcher, and were proved to be deaf and dumb, but
H. Or R.]
(May 28, 1834.
that they were intelligent, and could read and write. Gist and myself, for the House of Representatives. It The bjection was urged upon the constitutional requisi- also happened that Gist contested the election of a comtion that all votes shall be given viva voce, and that it was petitor running on the other ticket; the two contests were phy sically impossible for them to comply with it. Upon going on in the Legislature of Kentucky at the same time, the etter of the constitution, and the authority of the cases and on the same votes, and the committee of the House of of Williams and Mason, decided in the Senate of Kentucky, Representatives decided that the vote of the same James a copy of which, marked D, is herewith presented, when Yocum, the dumb man, was good and legally taken. I do James Yocum, a voter, was excluded because he was not make this statement as evidence to the House, as I deaf and dumb, the committee were at first disposed to have not the report itself to offer; I do it for myself, such sustain the objection. Subsequent reflection, however, being my recollection of the facts. The report which induced them to give the constitution of Kentucky a more the gentleman refers to, when examined, shows that the liberal construction, and the votes were retained.” committee were partly influenced under a belief that Yo
The gentleman's speech is for strict construction, and cum had been overreached. The fact is, that Yocum conhis report for liberal construction; and which shall we tinued to vote in Montgomery county, at elections, until take for our guide the printed sentiment, or the verbal the poor fellow died of cholera, and his right to vote, and declaration; the opinion conceived, formed, and matured, some of his brothers, also dumb, was never doubted or perhaps over the midnight candle, or that spoken here in questioned by any body in our county. But the gentleihe heat of argument, in the zeal of debate, under the in- man relies upon the case which he has referred to, and Auence of a heated moment, and perhaps in the presence the vira roce words of the constitution. If the decision has of Mr. Moore and his friends? I say which opinion of the been given as he contends, I should suppose the decision gentleman shall we follow? Certainly that contained in in the case of Gist and his competitor would be of equal the printed document, and more particularly as it contains authority, and the known practice and understanding of the thoughts, as he says, of subsequent reflection, of which the citizens of Kentucky upon the right of suffrage, would I have no doubt, and which must be the best. The gen- destroy his precedent; but, in the constitutional point of tleman at first thought that the deaf and dumb could not view, he has clearly not done justice to the subject. What vote, but his reflections afterwards taught him better; are the qualifications of voters as declared by the constiand, I suppose, from this self-same rule, since he made tution? “ Art. 2. Sec. 8. In all elections for representahis speech, many of the positions which he took in argu- tives, every free male citizen, (negroes, mulatioes, and ment are found to be, on subsequent reflection, flimsy, Indians excepted,) who, at the time being, hath attained false, and wholly untenable. I beg no boon–let the gen- to the age of twenty-one years, and resided in the State tleman be not surprised. I must contend that it is fair two years, or the county or town in which he offers to according to the laws of debate, when my adversary as- vote, one year, next preceding the election, shall enjoy sumes two positions, inconsistent, and wholly at war with the right of an elector.” Now, clearly, according to this each other, I have the election which ground to assume. clause, a dumb man, having these requisites, is a legal 1, therefore, take the printed report, and shall hold him voter, and has the right to vote. Now, can it be suppoto the choice. If, then, according to every legal principle sed that the right is required to be exercised in an imposand the gentleman's own admission, we give a fair and sible manner, or not at all. This would be an absurdity in liberal construction to the constitution and election laws terms, an outrage to the common understanding of manof Kentucky, the whole of bis fine-spun and labored ar- kind, the justice of the case, and defeat the intention of gument must fall to the ground; the foundation being the very framers of the constitution, who evidently, only gone, the whole superstructure must tumble into ruins, intended by that clause to change the mode of the ballot leaving only the rights of the deaf and dumb protected or ticket system, which, at the time of the adoption of from the wreck. Shall it be contended that this liberal the constitution, was practised by many of the States. principle can only apply to the person of the voter, and Nothing is seen in the constitution showing any intention not to the forms of holding an election? Certainly to exclude the deaf and dumb. Those in convention not.
would never have sanctioned a doctrine calculated to cut If the rule be good in the one case, a fortiori will it be off from the right of suffrage, an unfortunate class of our in the other; and more particularly when so many duties fellow-citizens, who, at all times, have been considered of the ministerial officers are to be performed merely di- competent witnesses in a court of justice. But the genrectory in their character, such as advertising one month tleman says a dumb man cannot be a witness. I deny previously to the time and place, crying the polls in the such to be the law. Not a witness! he has no authority in court-house yard, and many others, which, according to the books for the assertion. Suppose a murder had been the arguments of gentlemen, must be strictly complied committed in the presence of one of this description, must with in every particular, or the election will be void. the offender go unpunished, because the person present About the deaf and dumb I perfectly agree with the com- could not speak, although intelligent, and, if you please, mittee. If they had been as correct in other views we had received an education at the Danville college? should not have so widely differed. Yes, I say, I heartily (Here Mr. Pope explained that he said a dumb man agree with them, as to the legality of the votes of this un- could not be sworn.] fortunate class of our citizens, and believe the committee Cannot be sworn! (said Mr. D.) What, does it rewill be sustained by this House, and the good sense of the quire a man to speak to take an oath? No, sir; the clerk nation. But, to my surprise, my worthy colleague [Mr. or other officer administers the oath and speaks. It is Popx] contends against the legality of the votes of those only necessary that the person taking the oath should ununfortunate individuals. I am glad to find that he is the derstand the nature and obligations of the oath. Cannot only member in this House who has contended for such a be sworn! says the gentleman. Then he cannot be a witdoctrine; he stands alone, and I think I am an overmatch ness. No man can be a witness without the oath requir. for one competitor, when backed by so many gentlemen ed by the law, which makes no exception. The Hindoo who act with him on the other questions. He says that can be a witness; if he cannot speak our language, he is he bas a high authority, a decision made in the Senate of sworn, and an interpreter is sworn; and such would be Kentucky, in the case of Williams and Mason. I am well the case with the dumb, if they were uneducated and acquainted with that case; it was a contest between indi- could not convey their ideas to the jury by writing. viduals of Montgomery county, the place of my residence. colleague (Mr. Allan] now tells me that a man was con. I was also a candidate at the same time, ruming on the demned and executed last summer on the evidence of a same ticket with Williams, he for the Senate, and Mr. dumb woman. The right of the dumb to vote has been