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Madison county, Kentucky, in favor of a restoration of the deposites. Mr. L. said that he had delayed presenting this memorial, in the hope that he would have received a list of the names of those who had signed it; he had been informed that there were 1,200, and that they would be sent to him. Not having received them, he presumed that they had been lost or miscarried; and he did not feel at liberty to delay any longer presenting to the House the views of so respectable a portion of his constituents on this all-important subject. He knew that ...To of Madison were as intelligent, and understood their interests as well, as any portion of the people of Kentucky. They were industrious, enterprising, and essentially agricultural. They were exporters of stock, and he believed exported a greater amount of live stock from Kentucky than any county in the State. They were, therefore, deeply interested in a sound currency. In common with others in Kentucky, they had suffered all the evils of a spurious paper currency. They had just emerged from that state of things; they were enjoying a high state of prosperity; the farmers were realizing fine prices for their produce, and their enterprising young men were engaged in taking it to market. They represent, sir, that this state of things had been broken in upon, and they attribute it to the derangement of the currency, by the removal of the deposites. He had great confidence in the judgment of the people of Madison; they were practical men; they were neither owners of bank stock, nor engaged in stock-jobbing; they had every thing to gain by having a sound currency, and everything to lose by a vicious one. Mr. L. said he would remark, while he was up, that he regretted not being here when the vote on the report of the Committee of Ways and Means was taken, although his presence would not have changed the result. He left Washington on business of an imperative nature, and his friends had informed him he could do so with safety, as it was not their opinion the vote would be taken before his return. In addition to this, a friend from Georgia, on the other side, gave him the promise that he would not vote for the previous question until his return, and did not do so. As he wished to shun no responsibility, he took this occasion for saying that he would have voted, had he been present, with the minority on all the resolutions but that which proposed an investigation of the United States Bank.
CLARK COUNTY (KY.) MEMORIAL.
Mr. ALLAN, of Kentucky, rose and said: Mr. Speaker, I ask leave to present to the House a memorial of the citizens of Clark county, in the State of Kentucky, on the subject of the removal of the deposites. This paper comes from a county that has long, in many respects, been highly distinguished. That region, unsurpassed in natural fertility, has been beautified and enriched by a tasteful and profitable cultivation. Order, wisdom, industry, and economy are the characteristics of the people. In all of the innovations which, for a time, distracted the State of Kentucky, the people of Clark county stood firm by the constitution. This paper comes from a pure fountain; it was dictated by neither office-holders nor office-seekers, nor contrived by politicians for political effect. It comes directly from the people, containing sound lessons of practical experience.
Sir, it would be wise for those who are intoxicated with boundless authority, and who are now towering at the giddy heights of power, to pause and listen to the voice of experience, of truth and reason. Those who have accidentally gained the command, may, for a length of time, retain their posts, if they have the wit not to touch the sources of public property; but when they so far depart from policy as to thrust their hands into the pockets of the people, the days of their elevation are numbered. It
Clark county (Ky.) Memorial—Kentucky Election.
[MAY 20, 1834.
is just as sure as that God rules the heavens, that no man, however great his power and popularity may be, can stand, in this country, who plants his feet upon a base currency. He is but a short-sighted politician who does not see that a stable currency and the public prosperity are indissolubly linked together, and that one cannot exist without the other. Who is so blind as not to see that the blow aimed at the currency has fallen with all its force upon the arm of industry? Sir, can that power stand that is erected upon the ruins of the labor of the people? It was said, when we first assembled here, that the extent of the evils of the late measures of the administration would be confined to the cities; that their force would be spent upon the unthrifty, improvident over-traders. Sir, if an interior situation, freedom from debt, prudence, economy, the most exuberant bounties of nature, improved by the most untiring industry, could have prevented the spread of the general mischief, then you would have heard no complaint from the county of Clark. But, sir, there is no shield that can protect any portion of the Union from a participation in the general calamity. Labor is the means by which the wants of man are supplied. When you strike down the standard of value, you paralyze the hand of industry, and the mischief equally pervades the seaboard and the interior, the city and the country; the mansion and the cottage, the mountain and the valley. When I left home, in November, these memorialists were in the enjoyment of uncommon prosperity; their industry was rewarded by high prices, promptly paid, in good money. Their prospects are reversed, and they now present themselves before Congress, to complain that their constitution and laws have been violated, and the national currency threatened with destruction; that they already feel the effect of these unwise and improvident measures, and see decay and ruin associated with their further continuance. They therefore pray that you will pause in this downward march, and re-establish the ascendency of the popular authority, restore the constitution, cause the laws to be executed, and protect their industry from the paralysis of a debased paper currency. [Numerous proceedings, memorials, &c. were then presented successively to the House, until its adjournment, and appropriately referred, most of them on the all-engrossing subject of the removal of the deposites and the recharter of the Bank of the United States.] The SPEAKER then laid before the House a letter from Con NELIUs W. Law it exce, of New York, resigning his seat in the House, which was laid on the table. The House then adjourned.
TUEs DAY, MAY 20. INDIAN AFFAIRS. Mr. HORACE EVERETT, from the Committee on Indian Affairs, to which was referred so much of the President's message as relates to Indian Affairs, made a detailed report, accompanied by three bills, viz: 1. To provide for the organization of the Department of Indian Affairs; 2. To regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers; 3. To provide for the establishment of the Western territory, and for the security and protection of the emigrant and other Indian tribes therein; Which bills were severally read the first and second time, and committed to the Committee of the Whole House on the state of the Union, and ten thousand copies of the said report were then ordered, by unanimous consent, to be printed for the use of the members.
May 20, 1834.]
Resolved, That Robert P. Letcher and Thomas P. Moore, Esquires, have leave to be heard at the bar of this House, in defence of their respective claims to a seat in this House. Mr. J. called for the reading of the report of the majority of the Committee on Elections, which concludes with the following resolutions: Resolved, That Thomas P. Moore be declared entitled to his seat as representative for the fifth congressional district of Kentucky. Resolved, That R. P. Letcher, in consideration of the expenses to which he has been subjected, is entitled to receive remuneration, at the rate of eight dollars per diem, and a similar sum, as viaticum, for every twenty miles. Objections having been made to the reading of the report, the House decided that the report should be read, ayes 69, noes 57. It was read through accordingly. Whereupon, Mr. BANKS rose to inquire if it was in order to move to refer this subject to a Committee of the Whole House. Mr. HUBBARD (Speaker pro tem.) replying in the affirmative— Mr. BANKS moved that the reports and resolutions presented by the majority and minority of the Committee on Elections, on this case, should be referred to a Committee of the Whole House on the state of the Union. Mr. JoSES rose, not, he said, to make any comment on this motion, but to ask for the yeas and nays upon it. They were ordered; and the question thereon having been put, it was decided in the negative: Yeas 84, nays 106. So the House refused to commit the reports. The question then being on the adoption of the first resolution— Mr. BANKS moved the following amendment thereto: Strike out all after the word “resolved,” and insert, “That all the legal votes which were received in Lancaster, (Garrard county,) whilst Morris Grant, Esq. acted as one of the judges, on the first morning of the election in August last, and those of a like character given on the second day of the election, in the casual absence of the sheriff, ought to be estimated in ascertaining the result of the election.” Mr. B. rose to address the House, when he gave way to Mr. STEWART, who suggested that, as a large portion of the documents had just been printed and laid on the table, it would be better to lay over this subject until to-morrow: and that, in the mean time, the House could dispose of two important bills on the Speaker's table— the Cumberland road and Harbor bills. IIe, therefore, moved that the House proceed to the orders of the day. Mr. JONES said that he must press his motion, and he called on the House to decide it. Mr. MARDIS inquired if the election case was not the special order of the day? Mr. HUBBARD replied, it was, until 12 o'clock, after which it was for the House to decide whether they would proceed to the other orders of the day. Mr. GORDON inquired what they were? Mr. HUBBARD replied that there were various bills lying on the table, and other business, which had prece. dence, unless the House should put them aside, for the purpose of going on with this case. Mr. WAYNE concurred in opinion that this was the practice of the House. The question being then taken on the motion of Mr. Srzwant, to proceed to the orders of the day, it was negatived. Whereupon, Mr. DICKSON rose and said, that, as the report of the majority had been read, he trusted that the House would admit that it was only just the report of the minority should also be read. He called for the reading. Objections having been made—
[H. of R. Mr. BRIGGS said he was surprised that there should be any objection to the reading of the minority report, the other having been just read. He called for the yeas and nays on the question, whether it should be read; which having been ordered, Mr. FILLMORE inquired if it was not a matter of strict right that the minority report should be at least once read when called for. The majority report had been read twice. Mr. CAMBRELENG hoped that the objections would be withdrawn. The reading of the report was finally proceeded with, and having been partly gone through, the further reading was dispensed with; after which, Mr. BANKS, of Pennsylvania, said: Mr. Speaker, I have offered this amendment for the purpose of bringing to the consideration of the House the question presented by it. I thought that those questions being purely of a judicial character, it was but right that the House should settle them by a distinct and separate vote. I thought that, in presenting them in this way, they would be less complicated, and more easily understood. I also thought that their being presented in this way, and thus placed on our records, it would hereafter be more easily seen what we have done, and what principles we have settled. These are, sir, part of the considerations which induced me to offer this amendment. I shall, hereafter, offer other amendments so as to present to the House, in a clear manner, those questions which, I think, necessarily arise, and on the decision of which the final result in this case mainly depends. Before I proceed to the discussion of the questions presented for our consideration by the amendment I have of. fered, I will make a few remarks as to some preliminary matters which are not at all foreign to these questions, in my judgment. By the third section of an act of the Legislature of the State of Kentucky, it is provided: “That the sheriffs of the counties in each district shall, on the fifteenth day after the commencement of the election, assemble at the places hereinafter designated in each of their respective districts, and then, by faithful comparison and addition, ascertain the person elected in their districts.” It is also further provided by the fifth section of the same act, that, “after having ascertained, as before directed, the person elected, the sheriffs thereof shall make out a certificate of the election of the person in their district, which shall be signed by all the sheriffs of the district, and which shall be lodged with the sheriff of the county wherein the F. are compared, and by him, together with a copy of the polls, be transmitted to the Secretary of State.” Harrodsburg, in the county of Mercer, was the place designated by the same act as the place at which the sheriffs were to meet, in this district, for the purposes which I have just stated. The sheriffs, or their deputies, of the several counties composing this district, did meet at the time and place designated for said purpose. When those officers were thus assembled, Alfred Hocker, the deputy sheriff of Lincoln county, proposed that they should go into an examination of irregularities, which, he alleged, existed in the polls of Garrard county. This proposition was objected to, and overruled by the other sheriffs then in attendance. Hocker, who appears to have been the devoted friend of Mr. Moore, being dissatisfied with this decision, left the board of sheriffs, taking with him the poll of Lincoln county, which he would not permit to be counted, and which was not counted. The vote in Lincoln stood 650 for Letcher, and 501 for Moore. By this conduct on the part of Hocker, Mr. Letcher had not the benefit of the majority, which he had in this county, of 149 votes over Mr. Moore. When this vote was taken from Mr. Letcher, the majority was for Mr. Moore. But giving this vote to Mr. Letcher, his entire majority was 49 votes over Mr. Moore. To this
vote Mr. Letcher was clearly entitled, which as clearly entitled him to a certificate of his election. A very brief examination of the law will show that the conduct of Alfred Hocker was illegal and unjustifiable. The duties of the sheriff are very clearly defined by the statute which I have referred to. There is no uncertainty in the language employed, nor can there be any doubt as to the trust confided. Their duty is, “by faithful comparison and addition, to ascertain the person elected.” Having ascertained the person elected, “they shall make out a certificate of the election of the person in their district, which shall be signed by all the sheriffs of the district.” These are their defined duties. Beyond these duties, no power is conferred by the law. They cannot inquire into and decide upon the illegality of the votes received. They are to ascertain who is elected, by comparing and adding up all the votes actually received, and not by purging the polls, as if trying a contested election. No such duty is assigned to them; no such power is conferred upon them. The power is, by the constitution, reserved for another tribunal. They are to ascertain who is elected. How they are to ascertain this, is clearly set forth in the law. The voice of the public will is placed in their custody. They are by law commanded, at a specified time, to bear this evidence of the public will to a particular place, and, in the manner directed by the law, to ascertain what that public will is. Having performed these duties, their power is exhausted. These are the single and only objects of the trust. The poll books are placed in their hands for these purposes, and for no other. If they fail to perform them, the object of the trust is defeated. If the motives of Mr. Hocker were upright, it strikes me that the remedy he applied was most singular. He alleged that something wrong was connected with the Garrard poll; and, to correct this error, he withheld from the calculation the Lincoln poll, which was confessedly legal in all its parts. This, I think, was a most singular way to correct the error of which he complained. Let his motives be what they may, his conduct was altogether lawless. It admits of but little palliation or excuse. In my judgment, the majority of the votes entitled Mr. Letcher to the certificate of election. The certificate, which was given for Mr. Moore, and forwarded to the Secretary of State, was not only irregular, but absolutely void. It was not signed by all the sheriffs. It appeared on the face of it, that all the votes given in the district were not compared and added up. It was proved that the Lincoln poll was withheld from the computation, in fraud of the law, in fraud of the rights of the electors of the district, and in fraud of the rights of Mr. Letcher. The certificate was signed but by three out of the five sheriffs in the district. It is a principle of law that we should presume that officers had done their duty, in absence of proof to the contrary. But this presumption cannot be made in favor of what is irregular on its face. Much less can it be made in favor of that which is found to have been done in open violation of law and public duty. Nor, in my opinion, does this certificate derive any additional force from the fact that it was sent by the sheriff to the Secretary of State, and that it has been forwarded here. This does not cure the defects. This gives it no additional authenticity. . It was in the first instance void, and, in my judgment, is still void. I do not think that it entitled Mr. Moore to his seat, and I believe a large majority of the members of this House entertain the same opinion. The production of a legal certificate entitles the person, in whose favor it is, to his seat, in the first instance: in the absence of this certificate, the polls are as high, if not the highest evidence of the person elected in the first instance, subject, however, to be impeached. The majority of votes actually given entitles the person to a cer
tificate. If no certificate is given, then the majority of votes does entitle the person to whom they are given to his seat. Mr. Letcher should, then, in my opinion, be considered in this trial and discussion as in possession of his seat, and Mr. Moore should be held to prove that the majority of legal votes was given to him, and not to Mr. Letcher. This he should do by clear and satisfactory evidence. This appears to be the obvious course which should be pursued. This put the parties in the position in which the electors of the district have placed them. Justice to Mr. Letcher, and a due regard to his rights, appear to require that this should be done. He is the person who received the majority of votes. This is evidence, in the first instance, that all who voted were legally qualified electors. It appears by the poll books, that Mr. Letcher had a majority of forty-nine votes. I will now come to the consideration of the question presented by the amendment I have offered. The general inquiry will be, was the majority of the committee right in rejecting from the Garrard poll fifty-four votes, which were given to Mr. Letcher, and sixteen which were given to Mr. Moore? Whether the majority was right or not, depends upon the constitution of the United States, and the constitution and laws of the State of Kentucky. By the 4th section of the 1st article of the constitution of the United States, it is provided that “the times, places, and manner, of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing Senators.” By the 3d section of the 2d article of the constitution of the State of Kentucky, it is provided that “representatives shall be chosen on the first Monday of August in every year, but the presiding officers of the several elections shall continue the same for three days, at the request of any one of the candidates.” It is known to all that representatives to Congress are elected at the same time every second year in that State. By a law of the State of Kentucky, it is made the duty of the sheriff of the county, every year, at least one month before the first Monday in August, to motify the inhabitants of his county, by advertisement, put up at the court-house door, of the time and place of holding the next election, and what offices are to be filled. It is further provided that the sheriff, or other presiding officer, shall, on the day of every election, open the poll by ten o’clock in the morning, and continue the same open until at least one hour before sunset each day, for three days successively, if necessary, or if any one of the candidates request it. It is also provided that the county court shall, at their session next preceding the first Monday of August in every year, appoint two of their own body as judges of the next election, and also a proper person to act as clerk, who shall continue in office for one year. In case the county court shall fail to appoint, or the persons appointed shall fail to attend, or any of them, the sheriff shall, immediately preceding the election, appoint proper persons to act in their stead. The judges and clerk of the election, before they proceed to the execution of their duty, shall take the oath prescribed by the constitutionThey shall attend to receiving the votes until the election is completed, and a fair statement made of the whole amount thereof; whereupon, the sheriff shall proclaim in the court-yard the names of the several persons then elected, and to what office. The persons entitled to suffrage shall, in presence of said judges and sheriff, vote personally and publicly, viva voce. Unless the sheriff, or one of the judges, shall know that the person offering to
vote is entitled to vote, under the constitution, the clerk
shall administer an oath or affirmation to such person, so as to remove the doubts of the sheriff or judge. The foregoing are substantially the provisions of the constitution and law, which are thought to bear upon the question which I am about to discuss. The county court did appoint two persons of their own body judges, and a proper person to act as clerk of the election; one of the persons appointed declined serving, he having become a candidate for office. The sheriff, on the morning of election, attended at the place for holding the election, and appointed a person as judge, to act instead of him who had declined serving. Mr. Wheeler, not being there in attendance, who was the other person appointed by the court, the sheriff also appointed Moses Grant to act in his stead. It was then about nine o'clock. The sheriff then opened the election. The judges and clerk then appointed, having first taken the oath prescribed by the constitution, proceeded to receive votes and record the same. They thus proceeded until about ten o’clock, when Mr. Wheeler, the person appointed by the court, appeared. He was also sworn and took his seat, and Moses Grant retired. It appears that, at this time, twenty-two votes had been given to Letcher, and three to Moore. This is the irregularity on account of which part of these votes were stricken off by the majority. The first question which presents itself is, had the sherif a right by law to open the polls before ten o’clock? I entertain the opinion that he had. It will be recollected that, by the constitution of the State, the “election is to be held on the first Monday in August, and to be continued for three days, at the request of any of the candidates.” The people of that State have, by the constitution, reserved those days for this purose. The constitution gives the three entire days, not fractions of days. This ought to be borne in mind as we proceed in this examination and discussion. This provi£ion is clear and free from all doubt. What, then, is meant by the terms used, “that the sheriff, or other presiding officer, shall open the election by ten o'clock in the morning, and keep it open until at least one hour before sunset?” Is it that the election shall be opened precisely at ten o'clock, and that it shall be closed precisely at one hour before sunset on each day? Or, is it not that the election shall be opened not later than ten in the morning, and shall not be closed earlier than one hour before sunset in the evening? I believe the latter to be the true meaning of the terms used. It is the plain reading of the law. By ten o'clock, means not later than tem. This is its obvious meaning and plain import, and is so generally used, and universally, understood. The provision that the election shall be kept open until at jeast one hour before sunset, strengthens this construction. The law gives the least portion of time which shall be allowed to voters. It is mandatory upon the officers, that al; the time between ten in the forenoon and one hour before sunset shall be allowed to the people to vote. It is not designed by the law to prevent the sherifs from opening the election before ten o’clock, nor is he prohibited from keeping it open later than one hour before sunset. He is to keep it open as late as an hour before sunset, and he is to open it as early as ten in the morning. He has no discretion left him as to closing the election earlier than an hour before sunset. He has a discretion as to keeping it open after that hour, and votes received at sunset, or even after it, would be good, so he has no discretion after ten o’clock. He may delay until that hour, but not later. This is the obvious intent of the law. He must not postpone the opening the election unul a later point of time. He is not prohibited from opening the election at an earlier hour. There is nothing in the law from which this prohibition can be implied. The law cones in aid of the constitutional right of suffrage,
and not to destroy or restrict it. It did not enter into the minds of the legislators, that they were abridging the time. Their object was to afford a full opportunity to all the electors to vote. This was the object of the provisions in the constitution and the law. We ought not to put such a construction upon them as will, in any degree, defeat this design. The right of suffrage is not derived from the law, but from the constitution. It is not proved that the election was opened at so early an hour for any fraudulent purpose. The hour was not so early as of itself to imply an improper object. On the contrary, it is proved that the election was opened at nine o’clock, to enable the people to vote and go home. It is proved that the cholera had raged at that place to an alarming extent. It was feared that, if crowds should assemble, it might reproduce it. To avoid this, the election was opened early. The object was to afford a full and fair opportunity to all to vote; and thus preserve the people, as far as possible, from the dangers of disease and pestilence. In my judgment, the conduct of the sheriff was laudable. He did not abuse the discretion confided to him. He exercised it lawfully. He was imperiously called on, by the circumstances of the case, to give all the time he could, by the constitution and laws, to the people to exercise this high and important right. His discretion was used to accommodate the people and to preserve their health. This case shows the wisdom of the provision in the constitution and laws, in giving to the electors those days on which to vote. The sheriff would have been highly censurable, if he had refused or neglected to open the election at so early an hour, when called upon by such a state of things as existed at Lancaster, at the late election. Even in the absence of law, his conduct having been proved to be fair and upright, his motives wholly to accommodate the people, and all the votes given, with one or two exceptions, being legal, his opening the polls at an early hour would be justified from necessity; it was beneficial to the people, and did injury to none. If the foregoing propositions be true, and that they are I do not entertain a doubt, the contingency had happened which legally called in requisition the power of the sheriff to appoint a judge in place of Wheeler, who was not in attendance. The judges are bound to be in readiness as early as the sheriff had a right to open the election; if they are not, the sheriff may then appoint; it is his duty to appoint; it is for the interest of the people that he should appoint, if there are people there desiring to vote. If he goes to open the polls, and finds that a judge is absent, he cannot open the election until he does appoint. If the people come to the election ground and find the election open, the sheriff of the county present, and the other officers, they may vote; and if it should turn out to have been a little before ten o’clock, I cannot bring my mind to the conclusion that this would vitiate the vote of an innocent and qualified elector. This appears to me to be too obvious to require any further comment. I do not see what effect Grant’s retiring, and Wheeler's taking the seat, can have on the votes received by Grant. If the votes received by Grant were good as received, and when received, they could not be vitiated by his after conduct, or the conduct of any other. If the votes were good when given, they cannot but be good now. Wheeler was appointed by the court for one year. He appeared, by virtue of this appointment, and was qualified, and proceeded to do the duties assigned him. This was all right, and cannot aflect, and does not affect, that which was done before he came there. I be lieve that the sheriff had power to appoint Grant as he did, and when he did; and that Wheeler taking the seat, and Grant withdrawing, does not, in any degree, tend to vitiate the votes of legally qualified electors, on the second day after the election had been opened,
and some votes received, the sheriff, after having been twice sent for, on account of the sudden and extreme illness of his wife, who died soon after the election, left the polls with the consent of the judges. He had no regularly appointed deputy present. He requested a young man of respectability, who was present, to attend with the judges; and, with their consent, he did attend for some time, and then gave place to another gentleman, also of high respectability, to attend. The judges agreed that he should attend with him, and he did so, until the regularly appointed deputy appeared, and attended to the election. During this temporary absence of the sheriff, thirty-two votes were:given for Mr. Letcher, and thirteen for Mr. Moore. The majority of the committee rejected these votes. I do not think that these votes should be stricken off. On turning to the law, it will be seen that the right of the sheriff to judge as to the reception or rejection of votes is not very clearly asserted. I am inclined to the opinion that he has no such power; if he has, it is certainly not very precisely stated. The enactment is, “that the judges shall attend to receiving the votes until the election is completed, and a fair statement made of the whole amount thereof; whereupon, the sheriff shall proclaim, in the court-yard, the names of the several persons then elected, and to what office.” This would appear to make it the duty of the judges to receive the votes. It does make it their duty. The judges are to receive the votes, and to make out a statement of the amount thereof. If it is made the duty of the judges to receive the votes, they must necessarily judge of the rights and qualifications of the voters. This latter duty is necessarily embraced in the former. It is made the positive duty of the judges to attend to receiving the votes; they are the persons designated by law to perform this trust; to them is given all the power necessary to perform it. In this grant of power and designation of persons the sheriff is not noticed; he appears to have been intentionally omitted. It is the duty of the judges to make out a statement of the amount of the votes. Here, again, the sheriff is omitted. It appears reasonable that the persons who receive and record the votes should make out the statement of the amount thereof; hence we find this duty assigned to the judges. After the votes are all received by the judges, and after the statement is made out by them, then the duty of the sheriff begins. The law then says: “Whereupon the sheriff shall proclaim, in the court-yard, the persons then relected, and to what office.” Here, then, we have, not only in the same act and in the same section, but in the same sentence, these several duties thus distributed. The distinction in the grant of power is plain and obvious. It is provided by the constitution that members of the General Assembly, and all officers, Executive and Judicial, before they enter upon the execution of their respective offices, shall take the oath which is prescribed therein. The judges and clerk are required by the law, before they act as such at the election, to take this oath, although the judges may have taken it before as justices of the peace. . The law requiring that this oath shall be taken by the judges, (and not by the sheriff,) although they may have taken the same oath before that the sheriff has taken, is a circumstance not without weight in this matter. It is provided that “The persons entitled to suffrage shall, in the presence of the said judges and sheriff, vote personally and publicly, viva voce.” This is directory merely as to the manner in which the elector shall vote. It is not intended that this clause should confer power or impose obligation upon the sheriff. The sheriff could not draw any power from this provision. It is confined to the manner in which the vote shall be given, and is only directory as to this; and, as I said be
qualification of the voter; nor does it create an obligation on the sheriff to be present at the time of the electionIt is made the duty of the sheriff to open the polls on each morning of the election, and to close them on the evening of each day. It is also his duty to proclaim, at the close of the election, the persons elected, and to what offices. He is a high peace officer, and, as such, his presence might be necessary to preserve order, so that the election might be conducted with good order, and that an opportunity might be afforded to all the electors to vote, without disturbance or tumult. He is also a public man, whose authority would be acknowledged and respected, and is supposed to be well acquainted in the county, and able to communicate information to the judges as to the qualifications of those offering to vote. . These are duties which are required of him by the law. His presence appears to be necessary for these purposes; and hence it is said that the votes “shall be given in the presence of the judges and sheriff.” It ought to be presumed that his presence was required for the purpose of discharging the duties clearly enjoined on him by the law. These are duties which the law manifestly imposes upon him. It is inferred that he will attend to perform them. We ought not and cannot legally attach higher importance to his presence, during the election, than the law has attached. The votes taken in the absence of the sheriff are all proved (with, I believe, one exception}...to have been given by qualified electors. The sheriff, if he had been there, would have had no duty to perform. No question was made as to the right of any one to vote. All who voted would no doubt have been permitted to vote if the sheriff had been there. It would, indeed, be a most rigorous rule of law that would now adjudge that those votes, thus taken, should be stricken off. I trust no such rule will be applied by this House. I then entertain the opinion that the presence of the sheriff was presumed, for it is not enjoined, to perform those duties which are designated by the law as pertaining to him by virtue of his office. In my judgment, it is the exclusive duty of the judges to attend to receiving the votes. This grant of power is clear, explicit, and positive. The right to judge of and determine upon the rights of those offering to vote is most clearly intrusted to the judges by virtue of this part of the law. The terms used naturally confer this power and impose this duty upon them. The sheriff is not included in this giant of power and designation of persons and duties, and his presence is not essential to the legality or validity of votes. This is my opinion. But suppose, Mr. Speaker, that I am in error in the views I have taken, and the opinions I have advanced, then a very important question is presented to the consideration of this House. How far ought those irregularities, on the part of the officers of the election, to affect the rights of legally qualified voters? This I deem a question of the highest importance to the people of this country. The right of suffrage, which is a great constitutional right, a right which lies at the foundation of our Government, a right which is above price in the estimation of the people of this country, is deeply interested in the decision of this question. I deem it of the greatest moment that this right of suffrage, which is to be excrcised by the people themselves, should be preserved in purity, and should be guarded by wisdom and integrity. If there is any one right which is more valuable than all other civil or political rights, it is this right of suffrage; it is the authority and voice of the people themselves. If this right is usurped or annihilated, the sovereignty of the people is impaired and the constitution violated. in discussing this question I shall not detain the House long; all I say shall be direct to the question presented.
fore, does not give the sheriff power to decide on the
The right of the citizens to elect their Representatives to