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authorize the importation of distilled liquors in casks of the Senate, it would be impossible for Congress hereafa less size than is now allowed by law; also, to permitter to draw the line, and refuse similar grants to the Irisli, spirits to be put into smaller casks for the purposes of the Dutch, the German, or other emigrants who came to reshipment; the law at present being to exclude spirits this country, who were all equally suffering, or bad suffeexported in casks of a small size from the benefit of cus red in the cause of liberty at home. All were, he thought, tom-house debenture, &c.

equally struggling for freedom. He could not see what Mr. S. said ibat the Committee on Commerce looked particular ground upon which this was to be maintained. upon the proposition in a favorable light, and he was if it was that aid had been offered by the Polish nation now instructed to move that the memorials be laid on the to this country in its revolutionary struggle, then so table, it being their intention to make inquiry into the did the people of the other foreign countries, whom he practicability of the measure during the recess, with a bad named, assist. lle would rather extend the time for view to the action of Congress on the subject next session. the payment 100 years than establish any such pre

The memorials were laid on the table and ordered to cedent as a donation under such circumstances. be printed.

Mr. CARR, in order to close the discussion, wbich THE POLISH EXILES.

seemed to be interminable, moved to lay the bill on the The bill from the Senate granting a township of land 10 table, but withdrew the motion at the request of 235 emigrant Poles, having been amended by the House, Mr. CLAY, who wished to have the question taken was returned by the Senate with their non-concurrence upon insisting or adhering to the amendment made by in the amendment.

the llouse. [The amendment provides that the land titles shall be Mr. PINCKNEY, however, renewed the motion to luy granted after ten years' settlement thereon, upon pay- the bill on the table; which motion eing negatived: ment of the ininimum price.]

Yeas 48, pays 107Mr. CLAY, of Alabama, saith le must move that the

Mr. CLAY rose and insisted that, by the act of cesHouse do adhere to its amendment, and went into an ex- sion (which he cited) from the several States to the Uniplanation to show that the bill, as it came from the Senate, ted States of these public lands, Congress was not authorwas a departure from the constitution, being a donation, ized to grant away or dispose of them, “other than for for which there was not any precedent that lie was aware the benefit of the people of the United States, &c. and of to authorize their making, of the public domains. One for no other purposes whatsoever." It was on this act donation of the public lands had been given by Congress of cession, he said, that he based bis opinion that Con. to certain emigrants from France, but that grant had gress was incompetent to make this donation. Ile would some public ground to recommend it; those persons being concede that, on the score of commiseration, these exrequired to plant the vine and the olive. lle could not iles were entitled to assistance. But why, even so, agree in opinion with those who thought that Congress should not similar assistance be afforded to our own poor, had the power to grant land to these or any other foreign many of whom would be rejoiced to get the right of en. ers, which they could not do to their own citizens, unless try on similar conditions as were proifered to them, even where commensurate benefits, facilitating sales thereof, on the refuse lands? The amendment, he contended, &c., would be accomplished by it.

would entitle and enable these men, after enjoying all The amendment proposed by the House gave to these the benefits of a grant, to purchase the land, with the individuals a:lvantages which were not given to the peo- avails arising from its produce when cultivated. ple of the United States, namely: if they went on the Mr. McKIM having, with a view to arrest the debate, lands, after ten years they woulí only be called on to moved the previous question, it was seconded, and the pay therefor the lowest price, viz: $1" 25 per acre; and main question having been ordered and taken, ibis was sufficient, in his estimation, for Congress to

The House insisted upon its amendment (requiring the grant.

minimum price for the land) to the bill: Yeas 32, nays 68. Mr. BARRINGER concurred generally in the views of

TIE POTOMAC BRIDGE. the member from Alabama, but suggested to him to vary liis motion.

The bill making an appropriation for the construction Mr. CAMBRELENG held ihat Congress had the pow. of the Potomac bridye, and repealing all former acts in er to make grants of the public domain, with a view to relation thereto, having been returned from the Senate, their actual selllement; and said he did not believe the with some amendments, people of the United States generally would refuse their Mr. MERCER moved that the House disagree to so assent to the grant for men circunstanced as these Poles much of the amendment of the Senate us went to strike were known to be: men who had been bravely fighting out the second section of the bill; which was agreed to. the battles of liberty in the old world, and in resist. After wbich, Mr. MERCER moved an amendment, in ance to the march of despotism. lle considered this an substance, to provide that, instead of the Secretary of the ollering in the cause of liberty, to which it was the duty Treasury being authorized to pay Mr. Dibble, who had, of the Thouse to respond.

in the belief that he had made a contract with and at the Mr. J. Q. ADAMS expressed his hope that this nation suggestion of the President, laid in materials, to a large would not act on a niggardly principle towards these amount, for the construction of a stone bridge, for this brave but unfortunate men. Ile did think that we were expenses and liabilities, &c., that the Secretary should imposing too many conditions with the grant.

ascertain all the reasonable expenses incurred by him for Mr. BURGES would, in reply to the constitutional the construction of the said bridge, and report the saine doubts of the member from Alabama, inquire, from every to Congress next session. son of freedom throughout the land, if the public domain The amendment having been debated at length by Mr. could be better disposed of than it was by this grant, FillmoNE, Mr. MERCER, Mr. WHITTLESEY of Ohio, Mr. given us encouragement to those who had so bravely Mann of New York, Mr. Peytox, Mr. STEWART, Mr. battled in its sacred cause? The eyes of the world, he Laurer of Pennsylvania, Mr. Chinn, and Mr. CHAMBERS, saitl, were upon thiem; and no man in the United States, Mr. WARDWELL moved the previous question; 10 free man, would or ought to say it was unconstitution which was seconded by the House: Ajes 78. The main al to pass this bill.

question, "sball the House concur in the amendments of Mr. HARDIN hoped the amendment proposed by the the Senale?" was taken, and negatived: Yeas, 46, nays 87. member from Alabama would prevail, and maintained [There was afterwards a conference and compromise that if the bill was passed in the shape now reported from on this disagreement. ]

MAY, 1834.]

Post Office-Kentucky Contested Election.

(H. OF R.

POST OFFICE.

Mr. ASHLEY endeavored to have a reconsideration of The following gentlemen were announced to compose the vote laying on the table the bill to confirm certain the committee to sit in the recess to investigate the af- land claims in Missouri, but failing in that effort, he moved fairs of the Post Office:

a resolution (requiring the report of the commissioners Messrs. Connor, Polk, WuITTLESEY, HI. Everett, who passed upon the claims to be submitted to the SecreBEARDSLEY, WATMOUGH, and Hawes.

tary of the 'Treasury; which was agreed to. Mr. POLK said he perceived, from the reading of the

On motion of Mr. SUTHERLAND, the House concur. Journal this morning, that he was placed as a member of red in the Senate's amendment to the light-house bill. the select committee appointed to sit during the recess

Mr. MERCER, from the committee of conference on of Congress, to examine into the condition of the Gener- the subject of the bridge bill, made a report; which was al Post Office. Mr. P. said he had never slirunk from agreed to. the performance of any duty assigned to him, since he

The resolution to make the allowance of $100 as an ad. had been a member of the House. It was well known to ditional compensatiou to the chaplain of the House, was the House that he had, during the present session, been agreed to. a member of a most laborious committee, the duties of Mr. HIESTER moved a resolution, requiring the Clerk which he had attempted to perform. He had been at all of the House to compile and report tabular statements in times willing to give his whole time and attention, whilst detail on the subject of canals and railroads, completed Congress was in session, to the business of the House. or in progress, in the United States; but it was rejected. This committee, however, were to sit at Washington du

The House being without a quorum, ring the recess. The state of his private affairs, he said,

A call of the House was ordered, when 88 members anwould render it very inconvenient for him to be at Wash. swered to their names, and other members appearing, the ington earlier than the meeting of the next session of Con-call was suspended. gress. He must therefore respectfully ask the favor of

The Senate's amendment to the bill to pay for properthe House to excuse him from serving as a member of ty lost and destroyed in the late war on the frontiers, strithis committee.

king out all but the allowances for horses lost in Illinois, Mr. Polk was excused, and Mr. STODDERT appointed was, on motion of Mr. DUNCAN, agreed to. He accomin his place upon the committee.

panied his motion with remarks on the merit of the sufThe bills remitting the duties on bells presented to the ferers. Roman Catholic church at St. Louis, Missouri, having On motion of Mr. CHINN, the House disagreed to the been called up by Mr. ASHLEY, occasioned some de. Senate's amendments to the bill to complete the repairs bate on the constitutional question of appropriating for of Pennsylvania avenue. the establishment of religion; but the bill was at length and moved a call, but consented to withdraw the motion.

Mr. W. COST JOHNSON opposed the disagreement, passed, 66 to 58. The House receded from its disagreement to the Sen

After some business of minor importance, ate's amendments to the bill to regulate trade and inter

The usual message was sent to the Senate and Presicourse with the Indian tribes.

dent, informing them that the House was ready to adjourn; and both Houscs adjourned at about 7 o'clock.

APPENDIX,

CONTAINING SPEECHES WHICH WERE EITHER NOT RECEIVED IN TIME TO BE INSERTED,

OR WERE ACCIDENTALLY OMITTED IN THEIR PROPER PLACES.

viz:

SPEECH OF MR. BINNEY ON THE KENTUCKY on one side or the other alleged to have been bad; the CONTESTED ELECTION.

other requires the House to decide upon the effect of al. The resolution of the Committee of Elections coming leged irregularities in the manner of election upon votes up for consideration, viz:

either admitted or proved to have been good. The diffiResolved, That Thomas P. Moore, Esq. is entitled to the seat culty of the cases comprehended in the first class is one in this House to represent the fifth congressional district of the of fact or evidence merely. It is so throughout, with the State of Kentucky.

exception of those cases which turn upon the legal defi. And the following amendment proposed by Mr. BANKS, nition of residence, where some resort must be had to

principles of law, to fix the meaning of this word in the That all the legal votes which were received in Lancaster, constitution of Kentucky.. With this exception, which Garrard county, whilst Moses V. Grant, Esq. acted as one of the

is of limited extent, there is no other difficulty in regard judgns, on the first morning of the election in August last, and those of a like character given on the second day of the election, ing the evidence which is produced to prove or disprove

to any contested case within this class, than that of weighin the casual absence of the sheriff, ought to be estimated in ascertaining the result of the election.

the age and residence of the voter; and the importance Mr. BINNEY addressed the House as follows:

of the decision upon these cases is much lessened by the Mr. Speaker: The report of the Committee of Elec. circumstance, that it cannot well grow into a precedent tions presents for the consideration of the House two to govern future adjudications by the House." It is not classes of questions, differing materially in difficulty as my intention, therefore, to detain the House by remarks well as in importance. One of them involves the com upon this branch of the controversy, further than by adpelency or qualification of individuals whose votes are verting, in a very brief way, hereafter, to the case of the

VOL. X.--301

H. OF R.]

Kentucky Contested Election.

(May, 1834.

theological students at Danville. But the other class is conclusion, except one that I reject without hesitation, of a description that cannot be very easily magnified be-namely, that the manner of holding elections prescribed yond its due proportion both of importance and difficulty. by the States, is part and parcel of the qualification of The cases within it are referred to in the amendment pro- electors, and to be respected rigorously as such; and that posed by the gentleman from Pennsylvania, [Mr. Banks,] any defect in the organization of the polls, at the time which claims for Mr. Letcher a number of clearly legal when votes are received, disqualifies the voter, and fixes votes, rejected by the Committee of Elections, on the the stigma of illegality upon his vote. I reject this propground of irregularities in the mode or circumstances of osition altogether. It is hostile to the principle of sufl'eceiving them; and these irregularities are said to con- frage, and is intrinsically anti-republican. I reject the sist in the premature appointment of one of the judges proposition upon which the report of the majority rests, of election, by the sheriff of Garrard county, before the ihat, because the State of Kentucky bas a right to prejudge named by the court was in default by non-attend. scribe the manner of holding elections, votes not taken ance; and also in the temporary absence of the sheriff in precise conformity with the prescribed manner in all himself from the polls, before his regular deputy could points, are, therefore, necessarily illegal votes. It does come to supply his place. This allegation of defect con- not follow. It would not follow, in the judgment of the scquently concerns the law of elections in this House Legislature of Kentucky, if they were called upon to ap. deeply and vitally. It concerns all future elections that ply the law to the case of a member claiming a seat in shall be adjudicated by the House, for similar questions that body. It would not follow in the judgment of any will recur with every contested election; and, if it be- judicial tribunal whatever. Other matters enter into the hooves the public interest in a most important particular, inquiry, besides the mere fact that the law of a State has the right of suffrage, to have a certain, uniform, and rea- prescribed certain regulations for organizing the polls sonable rule in regard to the influence of such irregulari- and conducting the election. It is matter of inquiry, to ties upon the rights of electors, it becomes the House to what extent these regulations are, by the policy or exgive its present attention to the consideration and estab-press language of the law, conditions, and how far they lishment of such a rule.

may be regarded as merely directory; in wliat cases nonSir, a majority of the Committee of Elections claim to compliance affects only the agents who superintend the deduct from Mr. Letcher thirty-eight rotes more than election, and in what cases the electors also; whether from the opposing candidate, on the ground that all the exact and literal conformity in all points must be sluwn, votes given at Lancaster while Moses Grant acted as al or whether there is any degree of departure from the judge on the first day, and while the sheriff, Thomas prescribed form and manner of the law, that is not, and Kennedy, was absent on the second day, until Yantis, the ought not to be, deemed fatal. This is a matter of indisdeputy sheriff, arrived, ought to be regarded as illegal pensable inquiry, even though the literal interpretation votes, although the voters possessed all requisite personal of the statute he as the committee have imagined it; and qualifications; and this they claim upon the ground that, I shall

, therefore, advert to some considerations which by the statute of Kentucky, the sheriff, who was required belong to this view of the case, before I inquire into the to open the election by ten o'clock, that is to say, at not construction of the statute. later than ten, and was authorized to appoint judges im A distinction between the qualifications of electors, and mediately preceding the election, if those named by the the manner of holding elections for representatives in county court failed to attend, was not authorized to ap- Congress, exists in the constitution itself. That instrupoint Moses Grant to act as judge in the place of Joseph ment bas placed the qualifications under the exclusive Wheeler, until immediately before ten o'clock, whereas regulation of the States; it is so by necessary implication. he did actually appoint him immediately before opening - The electors in each State shall have the qualifications the election at an earlier hour; and upon the further requisite for electors of the most numerous branch of the ground, that the presence of the sheriff was, by the same State Legislature.” The States alone can declare these statute, indispensably requisite to the valid reception of qualifications, and their determination is conclusive. Even every vote, by virtue of a provision “that the persons a judicial construction or interpretation of them by the entitled to suffrage shall, in presence of the said judges State courts is binding upon Congress. Congress cannot and sheriff, vote personally and publicly, viva voce," take from nor add to them. whereas, during a portion of the second day, in conse The regulation of elections stands upon a different footquence of the sudden illness of his wife, the sheriff wasing. “The times, places, and manner of holding elecabsent. ! differ in both particulars from the committee, tions for Senators and Representatives, shall be prescribed in their interpretation of the statute, and will state my in each State by the Legislature thereof; but the Conreasons hereafter; but what I desire to bring to the con- gress may at any time, by law, make or alter such reg. sideration of the House is, the proper eflect of such ir- ulations, except as to the places of choosing Senators." regularities as these, even if the committee lave given The State laws regulate the elections of members of this to the statute its true interpretation. What ought to be House, by permission of Congress. In the interpretation their effect upon votes confessed or clearly proved to of such laws, this House trenches upon no rights of the have been good? To what extent must good votes be States: It merely understands, and enforces according to necessarily rejected, because they have been received du- its understanding, a law which Congress can make or alter ring the existence of even admitted irregularity in cir- at pleasure. The House does not alter nor affect the cumstances like these! This is the question which I ask qualifications of electors required by the States, by interthe House to consider; and I deem it to be of great mo- preting the State regulations, as its own sense of the policy ment to this and to all other elections for representatives and spirit of such regulations may dictate. It is a quesin Congress.

tion of interpretation only, and not a State power. The majority of the committee, and gentlemen on this Now, sir, by the fifth section of the same article of the Hoor who concur in their opinion, have confined them constitution, the fullest authority is given to the House to selves to the literal prescription of the statute; and having, exercise conclusive and exclusive judicial power over this as they supposed, ascertained its provisions to be of a subject. “ Each House shall be the judge of the eleccertain import, they have followed them implicitly, though tions, returns, and qualifications of its members." This it has led to the rejection of unquestionable votes, and power embraces the whole subject. The elections cum. if their views are followed out, will give a seat his prchend every agency of eleciors, judges, sheriffs, and House to the candidate of a minority of the qualified vo- clerks, from the beginning to the end. The returns are ters of the district. No proposition can lead to such as the authentication of the result. The qualifications of its

Mar, 1834.)
Kentucky Contested Election.

[H. of R members are those which the constitution of the United judges and clerks duly appointed and duly sworn, the States has prescribed. The whole matter is thus referred sheriff in personal attendance throughout the election, judicially to the House, under the undoubted obligation the returning officers performing their duty, and the to interpret the State laws instead of rescinding them, but Governor certifying the result, is it not the law of elecunder the equal obligation of giving effect to the will of tions in this House, that the House may disregard the dethe qualified electors, and to prevent its defeat by setting cision of the judges and the return, and give the seat to a up the means as superior to the end. The House has full candidate in opposition to them? Has not the House aujudical power to decide upon these prescriptions as to thority to throw into the scale of the candidate not returntime, place, and manner, according to such reasonable ed, legal votes in bis favor which the judges have refused principles of interpretation as are applicable to laws whose to estimate, and thus to give him a seat in preference to policy is to secure a due representation of the qualified the candidate returned? Sir, the Committee of Elections electors in the National Legislature.

have proceeded on the basis of such an authority in this What, then, ought to be the interpretation applied by very case. There has been no regular return in favor of the House to a law of Kentucky prescribing the manner any candidate; and, by the act of the sheriff of Lincoln, of holding elections for representatives in Congress? there was a total failure to make that comparison and The law does not give the right of yoting; it is not in- addition which the sheriffs of the different counties were tended to restrain or abridge it; its great object is to pro- required by law to make; yet the committee have scrutimote and secure a fair and free exercise of it. Gentle- nized the polls, and, in disregard of forms, have reported men who argue, as some have argued on this floor, that, in favor of giving the seat to one of the candidates. The being a conventional, and not a natural right, it does not Fouse, then, is competent to give the seat to a member, exist unless it is exercised in the precise manner, in all by the force of discarded votes, in opposition to the most respects, as the State law prescribes, build their argu- regular forms. I ask, why is this? The answer can only ment upon a distinction which is of no value, and con- be, that the right of the voter is superior to forms, and found things which are essentially different. Whether the that the abuse of forms to defeat it ought not to succeed. right of suffrage be natural or conventional is of no import- The election law prescribes that all legal votes shall be ance. It is a fundamental right. Government itself, or received; it directs that they shall be counted; and it rather a particular form of government, is conventional; orders the result to be declared, according to the state of and if the right of suffrage is as good as the Government, the polls, as the judges of election have received them. it need not be better. Being a fundamental right, secu- But if the contrary occurs, in disregard of the fundamenred by the constitution of Kentucky, it ought not to be, tal law of suffrage, this House will redress the wrong, in and cannot legitimately be, confounded with those provi- spite of all the protection that forms can give it. Formal sions of law which are designed to secure its exercise. compliance with the law is not, then, essential to title; That all the provisions of an election law are parts of the but the most regular forms will be disregarded, when qualification of an elector, and to be scrutinized and en- they stand in opposition to the rights of the electors. forced with the same strictness as qualification itself, is a If the case be reversed, and the very question in this position that is not warranted by any analogy in the law. contest be presented, whether the House is bound to Doubtless, the provisions of every statute are entitled to re- reject good votes, because they have been received and spect and to general observance. It is the duty of those who counted by persons who have not in all respects observed execute the laws to respect and enforce them all. But when the forms of the statute, what answer can be given, except the argument assumes for them such an influence, as that the one that accords in principle with that which rules the omission to observe any one of them becomes a defect of case first stated? If ihe House may give effect to good qualification in the voter, and obliges this House to reject votes when they have been disregarded by the judges, as illegal the votes received while the irregularity pre- and when the regular forms of the law stand in opposition vailed, the construction becomes an enormous evil. The to them, so it may give effect to good votes when the position is radically opposed to the right of suffrage, as it forms of law have not been strictly complied with in realso is to well-established rules for the interpretation of ceiving them. The non-observance of form, then, is not statutes of this description; and it will make the right the necessarily fatal to a vote, as a defect of personal qualifivictim of accident, ignorance, inattention, and even of cation is. frand, in the execution of an election law, and, conse. Suffer me, sir, to pursue this matter a little further. quently, of those very precautions which were intended It is said that the voter takes his right of suffrage as the to secure its exercise. Ou the contrary, sir, neither ac- law gives it to him, and that the law gives it to him sub cident; ignorance, inattention, nor even fraud, in the modo, that is to say, in the manner prescribed for its exofficers of election, in omitting to comply with the pre-ercise by the election law; and, consequently, unless his scription of the law, ought in all cases necessarily to dis- vote was taken in the very manner prescribed by the appoint the right of suffrage. If the authority of the offi- law, it was illegally received, and is a nullity: I have cers was colorably or apparently good-is the defects in already remarked that this proposition is unsound, because form were such as did not disturb the fairness of the elec. it confounds the fundamental right of suffrage with the tion, nor pervert its fundamental nature, by making it a provisions which are made to secure its exercise. But viva voce election instead of an election by ballot, or the let me ask, how far gentlemen mean to go with the doccontrary-if, in spite of irregularities, this House can see trine, for I am not aware that it has been at all qualified that, according to the spirit of the law, the will of the peo- or limited in argument. If the prescription in time, place, ple in the exereise of their right of suffrage has been fair- and manner, must be observed throughout, to give effect ly expressed, -and if the state law does not expressly to the right of suffrage, must it be observed with the declare the irregularity to be fatal, -then, in my appre-strictness of a legal condition? Must there be duly-aphension, the authority of the House to judge of the election, pointed and sworn judges, clerks, and sheriffs, each perleaves it free to disregard those irregularities, and to give forming his prescribed duty, without deviation, from the befull effect to the will of the majority of qualified voters. ginning to the end; and does failure in any particular invali. It is free to disregard them, in deference to the policy date the vote or the election? Gentlemen should consider and spirit of the law, and is not bound by a servile atten- that their doctrine may involve not only a few votes, but lion to forms to defeat them both.

the whole election; for if the election law is a series of Mr. Speaker, I propose this case for the consideration provisions of indispensable observation, they should recolof the House: When all the formalities of the law, in lect that while the common law is styled a nursing father time, place, and manner, have been duly observed, the that makes void only that part where the fault is, and

H. of R.]

Kentucky Contested Election.

(Mar, 1834.

Preserves the rest, the statute is like a tyrant; where he or's hands; and that every survey made theretofore shall Comes, he makes all void. In this very statute of Ken- be accounted void and of no effect. Under this act it has fucky the sheriff is expressly required to proclaim the been held, that so much of it as prescribes the mode of persons elected, in the court-yard, at the end of the elec. making the survey is directory, and that so much as re. tion. Suppose he does not proclaim them at all, or pro- quires the warrant to be in the surveyor's hands at the claims them on the house-top, or in the street, because making of the survey is conditional; that a survey made there is no court-yard. It may be that he violates the before the warrant comes to hand is absolutely void; but law, and must excuse it or answer for it to his superiors; although the surveyor, unless he goes on the ground and but what then? Will any one assert that the election is marks all the lines, is not entitled to his full fees, yet that void for want of a proclamation? Again: suppose the law the title of the warrantee is perfect, if any lines are run to require that the election shall be held in the county and marked so as to enable him to identify the tract and court-house, and that by a fire, at the very time of elec- ascertain its quantity. The distinction is founded on the tion, the judges and clerks are driven into the street, or consideration, that it is the policy of the law to destroy into an adjacent building, and there finish the polls. The all surveys made before the surveyor is in possession of prescription of place has not been rigorously observed; the warrant; and that by the provision as to the manner of but will not even necessity excuse the change, nor the making them, it means only to give certainty to the surnearest approach to the place that safety to life will per- vey. The same distinction has been held in regard to mit satisfy the law? Again: the judges and clerks are to other statutes. It would doubtless be applied to quiet be sworn in a set form of words, prescribed by the con. the objection, if raised, that the sheriff

' had not made stitution or law; and this is one of the substantial ceremo- proclamation according to the law of Kentucky; and the nies of an election. Suppose there is a flaw in the au. principle upon which it depends would probably induce thority of the justice who administered the oath, or a this House to disregard every effect of form occurring in negligent deviation from the terms of the oath prescribed the course of an election, in which it appeared that the does it follow that the election is vitiated?' It is well votes of the qualified electors had been fairly given to known that a justice whose qualifications are not in all persons apparently competent to receive them, in subrespects perfect, cannot recover his fees of office, nor stantial compliance with the spirit and policy of the law. maintain any action as a justice of the peace. It may also This House, in the exercise of its constitutional functions be that the penalties for omitting to take an oath of pre- as the judge of elections, is a court of the very highest scribed form are recoverable at law, though an oath in authority, at once a court of law and equity, subject to different form may have been taken. But can it be ar- no appeal, and under no restraint except that which is gued, that an oath taken by a judge or clerk before a jus- imposed by a sound discretion, and the obligation of giy. tice, in the actual exercise of his office by color of a ing effect to the right of suffrage. The enforcement of commission, though in some point defectively qualified, that right ought to be the great object and end of the or that a deviation from the set form of the oath, so adjudication. The forms prescribed by the States, under vitiates the polls that this House must reject them? Nay, the permission of Congress, are of secondary importance. sir, if the oath has been altogether omitted by judges and They are instruments intended to assist the right; and, in clerk, either by accident or in fraud, the voter not being the absence of explicit enactment to that effect, should privy to it, is it the law of this House that votes received not be set up to defeat it. By dealing with these forms by such officers are incurably bad? I cannot admit the as some gentlemen require, we deal with them as no position, if it is asserted on this floor. I cannot admit that court of law or equity would deal with formalities prethe omission to swear a clerk of election, though express- scribed, either by private deed or by statute, in any case as ly required by law, is necessarily fatal to the polls. meritorious, and as full of the very highest consideration, Though gentlemen have in former cases so argued, and as is the exercise of the elective franchise. The most rigorin two instances committees have reported to the same ous of common law conveyances, those of fine and com. effect, this House has not, to my knowledge, sustained mon recovery, are amended even by courts of law; and the doctrine by its decision. The contrary has been held their defects in form are supplied with much greater lib. in England, and is, I think, in clear conformity with prin- erality by courts of equity. In the case of powers, ciple. Upon principles of settled law, I trust that this however rigorously the execution of them may be preHouse would do the same, if the point were now directly scribed by the party who creates them, to take effect before them; and yet, sir, if this single point of election only in one form, as by deed under seal and in the preslaw be as I suppose it is, gentlemen must perceive that ence of a certain number of witnesses, yet a court of the doctrine, that forms and even the substance of an equity, where a valuable consideration has passed, will election law are parts of the voter's qualification, cannot effectuate an execution of the power when not one of the be maintained. It must be abandoned, and some more formalities has been observed. This, it is true, sir, is practical principle assumed for interpreting the election dry, technical doctrine, but it teaches a lesson not unworJaws of the States, and for preventing deviations from pre-thy of attention, to a court which is now called upon to scribed form from becoming fatal to the right of suffrage. adopt a rule that will sacrifice the highest of political

Mr. Speaker, the most extravagant position that could rights to the most empty and immaterial of forms. I am be urged in a court of strict common law, would be the aware that formalities required in some cases by act of universal necessity of literal compliance with all forms Parliament cannot be dispensed with by courts of equity prescribed by statute, even to give title, still less to give or law. The case of stamps, and the ship registry pro. effect to the exercise of an existing right. The distinc. visions, may be referred to, and some others. But these tion between enactments that are directory and such as are cases in which it is the policy of the statutes, as well are strictly conditional is a familiar one; and it is deduced as the language of their enactment, to make null and void from the obvious policy or spirit of the statute. In the all such instruments as are not made or authenticated in State of Pennsylvania there is a statute, the settled in- precise conformity to the statutes. Here the policy of terpretation of which illustrates the principle. It is an the statutes is to carry the elective franchise into full act which prescribes that every survey thereafter to be enjoyment, and its forms are devised with this view. It returned into the land office upon any warrant issued is one thing to say that a court of equity cannot assist an after the passage of the act, shall be made by actual unstamped instrument, and another to say that this court going upon and measuring of the land, and marking the cannot assist the right of suffrage, by preventing a form lines to be returned on such warrant, after the warrant from being set up for its destruction. There are many authorizing such survey shall come to the deputy survey- cases which must be familiar to gentlemen of the pro

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