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Congress, I have already said, is a great constitutional right. The law of the State does not give this right. It is a right paramount to the laws of the State. It is a right which, being secured by the constitution of the United States and the constitution of the State of Kentucky, is above legislative authority. The laws of the State did not grant or create it, and, therefore, cannot impair or take it away, either by direct or indirect legislation. This ought to be borne in mind in our application of the law to the facts in this case. The law of the State only prescribes forms, and establishes guards, the more effectually to secure this right, and its uninterrupted enjoyment, to the people. . The people of the State of Kentucky do not choose the judges of the election. They are appointed by the county court. The people have no direct agency in their selection. The people go, at the time fixed, to the place of holding their election, and find the sheriff of the county, a known public officer, assisted by two judges, and a clerk, either appointed by the court or by the sheriff, in the discharge of their duties as officers of the election. I ask, are they to look further? Is it their duty to look further? Is it incumbent on them to look to the time of day, or to the manner or time in which the officers were appointed?, 1 cannot bring my mind to the conclusion that it is at all incumbent on them to look into the title of the officers. I think I have been successful in showing that Grant, at least, came into office under color of authority, and that he was an officer de facto, if not de jure. He was called to the office by the person having the power to appoint, and was sworn as an officer of the election before he acted as such. I deny, most positively, that it is or ought to be incumbent on the citizens of Kentucky to see that all the forms of law, in regard to these preliminary matters, have been observed to the letter. The people do not hold this paramount right—this right which is the foundation of all law, and without which there cannot be any Government in this country—by a tenure so frail and precarious. It never was intended that the freemen of Kentucky should be perilled in their right of suffrage, either by the negligence, ignorance, or fraud of petty officers. If they even thought that the officers were not proceeding with regularity, they have no power to correct or remedy it. Officers generally feel the dignity of the authority with which they are clothed, however small it may be. They would not, probably, change their course, if requested so to do. Thus the people have no alternative left but to vote or to go home without voting. They might, to be sure, go home without voting, but this would be defeating an election altogether, and would totally deprive the people of the right of suffrage. Sir, the great inquiry ought in all cases to be, was the election free, full, and fair, on the part of the voters? If it was free, full, and fair, I would take it as the expression of the public will—as the voice of the people legitimately made known, and which I hope I will never disregard. This will is too dear to freemen, too sacred to the American people, to be stifled or lost in form. This will is the substance of the election—the form is but the shadow. I go for the substance—l go for the votes of freemen, regardless of mere form. I care not for the shadow. This will of the people, as communicated by their votes at the polls, is the essence of every election. Yea, more, it is the election itself; and ought not, and cannot be controlled by mere form, without destroying our republican form of government. Who are these petty officers, that are worked up into such mighty importance.” They do not make the election. They are but instruments appointed by law merely to receive the suf. frages of the people. The great and paramount right consists in the act of voting. It is the voter who speaks. The voice and act are his; and to this act alone should we look, and by this voice alone should we be guided. To
this act will I look, to this voice will I listen; and never, no, sir, never, will I permit either the mistakes, negligence, or fraud, of inferior officers, to alter or annihilate this act of the voter, no matter how humble and retired his situation in life may be.
The right of suffrage in the hands of the people is the all-controlling power in this Government. If this right is to be lost in the mistakes, negligence, or fraud of officers, what will the consequence be? You at once take off all restraint upon ignorance and negligence, and give full license to corruption. If you do this, you at once uproot and overturn all their constitutional safe-guards which can alone secure the people in the enjoyment of their right of suffrage. How do individuals now find their way into this House? The old-fashioned and common way with us is by getting a majority or plurality of votes. This is the way which I prefer. But, establish the principle contended for, and what rule do you then adopt? Members will then find their way here, not by the legitimate call of the people, but through the ignorance or treachery of some petty officer. Is not this putting the case fairly 2 I do conceive that it is nothing short of this. Whenever you establish, as a governing principle, that the errors and omissions of officers shall control the acts and voice of the voters, you do in effect establish the principle above stated. Men would then find their way into office, not only without the votes of the people, but against the votes of the people. When the people have spoken and made their choice, their voice is to be disobeyed, and their choice rejected. The people of this country never intended that the elective franchise should be made subject to this want of form or abuse on the part of county or township officers. The great question, as I have before stated, ought to be, was the election full, free, and fair? Had those who voted a right to vote, and did they vote in time and manner as directed by law on their parts? If they did, I would give effect to it. The right of suffrage is too precious to be subject to such refinements and technicalities. This is the only rule which will preserve our republican form of Government in purity. The majority must rule. The person who has the most legal votes is elected.
The fact that the people themselves, at the time, thought those irregularities, as far as they had been apprized of them, of no importance, has great influence upon my mind. Two judges, publicly appointed in the way pointed out by law, presided, assisted by a legally constituted clerk, and attended by the high sheriff of the county. The people of all parties, and all the candidates, thought, at the time, all was right. The election was public, and the citizens, who were the substantial agents at the election, carried it on without any distrust that it was wrong. They did not entertain a doubt, at the time, of its validity; no objection was made by any one; the people voted for the candidate of their choice; they believed that they were legally and efficiently exercising their rights; no murmur was heard for near two weeks; no inconvenience was felt at the time. All had an opportunity to vote and did vote. I cannot now think that all this, thus solemnly and deliberately done by the people, is to be set aside by the application of a rule rareiy resorted to in criminal proceedings. I regard, the opinion of the people. I take for granted that they have some knowledge of the law and their rights. They did not think that any injury or injustice was done them; nor do they think so now. They do not now complain; the complaint comes from a candidate, against whom the majority of the votes was given; I do not think those ob: jections ought to prevail. They ought to be considered as waived by the people, who are the real parties in this transaction. It is for the interest of the public, and the rights of the electors require, in my judgment, that they should be so considered.
Presence of the sheriff so material that the votes of legally qualified electors should be rejected because he was temporarily absent. I think that Grant was at least an officer de facto, and that his acts, as such, were most clearly good. The law, with regard to the acts of de facto officers, is perfectly well settled. ls founded in justice, and has been approved of by the experience of ages. The rule is as old as our law books. The rule is, that all the acts of such officer are good, so for as regards the rights of the public or third persons. The office is void as to himself only. This rule is well understood in Pennsylvania. Even when rights are diwested, through the agency of officers, this rule applies with all its force. If that be so, why should it not be so here? The rights of no one are affected by allowing the votes of these men. Mr. Moore has no right to complain. He ought not to come into office against the votes of the People of the district. The vote, which he attempts to strike, off were all given by legally qualified voters. They voted against him. The electors have, in fact, chosen Mr. Letcher. He is their choice; no one doubts it; he Qught, therefore, to be their representative; they have said so. I regard their voice, and, as far my vote Will go, I will give effect to it. I think the rulesi have laid down are the only safe ones. I think they conform to the great and fundamental principles upon which the right of suffrage is founded.' I think that they are the only rules which will promote and secure the high ends contemplated by the people themselves in framing their constitution; and that the one contended for by the majoity of the committee completely nullifies the right of suffrage The majority of the committee have referred to some decisions in cases of contested elections as sustaining the decision which they have made. I will answer one or two of those cited. The first which I will notice, is the ose of Duncan McFarland vs. Samuel D. Purviance. This case was from North Carolina. on the 29th of Feb. ruary, 1804, the Committee of Elections made their re. Port, which was referred to a committee of the Whole House, who, on the 6th of March, 1804, were, on motion, discharged from the further consideration thereof, and the subject appears not to have been acted on again durog that session of Congress. At the succeeding session of Congress, Duncan McFarland again presented his me"9", Praying that the House would take into consider.
asion and ultimately decide upon the subject-matter of
his memorial. This new memorial was referred to the Committee of Elections, but it does not appear that any *P* was ever made thereon. No decision was ever made in this case by Congress, and I am at a loss to know of what authority it can be. It is of no authority, and I **onot perceive for what purpose it was cited. ! will notice one other case, and, if I am not much mistaken, it will turn out that the majority were equally unfortunate in citing this case. If I understand the case, it * an authority directly against the position which they have taken, and one which fully sustains the principles for which I have been contending. It is the case of Rufus Easton vs. John Scott, delegates of Missouri Territory. In this case, the committee decided that, as it was required by law that the election should be held by three judges, who were to be sworn, and that two persons acted * judges, and were not sworn; that, as the law reQuired that two persons should act as clerks, who should be sworn, and but one acted as clerk, who was not sworn; that the votes taken by those persons, as officers of the election, were illegal, and should be rejected. The committee also made other decisions which I need not take time to state. When this report was before a Committee of the Whole House, on the 3d of January, 1817, Mr. Websten opposed the report of the committee on the
It is a rule that
Then, to conclude on this point, I do not think the ground of its being predicated only on illegality in a sep
arate election, without entering into an examination of the qualifications of the voters generally; and moved the recommitment of the report to the Committee of Elections with instructions to receive evidence that the persons voting for either candidate were not entitled to vote on the election. The vote being taken on this motion to recommit, it was decided in the affirmative. Here, then, is the principle decided which I contend for. The report of the committee was founded on irregularities on the part of the officers or persons holding the election. The committee had rejected votes, because that they had not been received by the number of officers required by law, and because that those persons had not been sworn. This was their report, and for these reasons votes had been rejected. The committee had not extended their examination to the qualification of the electors. What does the House do? The report is recommitted, not generally, but with definite and particular instructions “to receive evidence that persons voting for either candidate were not entitled to vote at the election.” The recommitment was for this single fact; this was all that the House wanted. The House thus determined to confine them to the single fact whether the voters were legally qualified. The House refused to decide without this inquiry was first made. This was considered the all-important question. It shows clearly that those irregularities were not sufficient to vitiate the election in the opinion of that Congress, and let in the minority candidate. No principle can be more clearly asserted, nor can any decision be more directly in point. The committee afterwards reported to the House that evidence could not be procured, so as to enable the committee to investigate the qualifications of the electors during the present Congress, and asked to be “discharged from further investigation into the qualifications of the said electors.” Finally, a new election was ordered. It plainly appears in the case, that, if the votes which were thus irregularly taken were rejected, Rufus Easton would have been entitled to his seat. Those irregularities were clearly made out, yet that Congress would not suffer this to be done. It appeared to be the opinion of members then, as it is mine now, that no individual should be permitted to take his seat against the majority of the votes of his district. I do not see how any man can ask, or expect to be permitted, to represent the people, not only without, but against their voice; not only when they have not chosen him, but when they have in fact chosen another to represent them. This, in my judgment, is any thing but republican in principle. It is at variance with the genius of our sree institutions. I have said all I intended to say on this part of the case, and at present will not remark upon those questions which I propose, in the further progress of the case, to present to the consideration of the House. When Mr. BANKs had concluded— Mr. JONES, chairman of the Committee of Elections, rose in reply, and went at length into a defence of the report of the committee: citing precedents srom analogous cases decided by Congress, and insisting that they bore out the committee in the grounds they had taken. Mr. MARSHALL followed, in opposition to the committee’s report, and had proceeded some length in czamining the precedents quoted by the committee, when he gave way to Mr. C. ALLAN, who moved an adjournment; but withdrew the motion to allow opportunity for the reference of the Senate bills; after which, The House adjourned.
WEI, NEs DAY, MAY 21, 1834.
KENTUCKY CONTESTED ELECTION. The report of the Committee of Elections upon the
contestetl election between T. P. Moore and R. P. Letch-
The case, then, presents itself under a |
sue, we shall be able to narrow down the question to the simple consideration of the “manner,” for about the “time” and “place” of “holding the election,” there is no dispute. It is now reduced to a mere point. Before I proceed to the argument, I must state the principles which should govern this body, in judging of the elections brought before it for decision. I lay down this position, that, as the right of suffrage is a common right, involving the highest attributes of liberty, all laws regulating its exercise should be construed liberally, and the utmost latitude allowed to give effect to the right, provided it produces no injury to the people to whom it belongs, or to the parties it designs to invest with a trust. We should the rather constitute ourselves into a court of equity, to do what the law would have done, if it could have foreseen the mischiefs, than into a court of law, to decide the case according to strict technicalities. Neither should we be governed by the subtleties of special pleading, much less the arts and refinements of quibbling minds. We should not consider ourselves as trying a case for a house or a loom, in which the ingenuity of the learned profession wastes itself in shifts and quirks, and is better satisfied with its triumphs when they are obtained by tricks. This election is contested upon two grounds: 1st, a non-compliance with the law of Kentucky, regulating the “manner” of holding the election; and 2dly, the reception of illegal votes. The first is, for the present, the only subject for consideration, as the amendment of the gentleman from Pennsylvania brings that point alone into view. No State can legislate in relation to the holding of elections, under the provision of the constitution last quoted, but as to time, place, and manner—anything beyond these is void, and has been wholly disregarded, as appears by several decisions, but especially in the case of Meade and Spalding. The State of Georgia, in its election law, had required that the returns of the election should be made in twenty days. It appeared that, within the twenty days, the returns had given Meade the highest number of votes, and the governor accordingly gave him the certificate of election; but it also afterwards appeared that, upon the coming in of further returns, after the twenty days had expired, Spalding was elected——and, upon contesting the seat, obtained it without any difficulty. I refer to this case to establish the position, that any legislation of a State, out of the time, place, and manner of holding the election, is of no manner of obligation upon this House. With regard, then, to the “manner” of holding the election, (for this, as I stated before, is all that we have now to consider,) we must carefully distinguish it from the qualification of voters. Qualification is one thing; manner is another. The first relates to the individual right of the voter——the other in giving effect to that right. If he votes without qualification, the vote is void, and will be expunged without prejudice to the other legal votes. If he votes with qualification, but contrary substantially, not formally, to the “manner” of the election, as directed by law, then the election is void, not in part, but wholly, for a breach of the law must affect all parties alike; it cannot enure to the advantage of one, and the injury of another, because it is not the fault of one more than another. This brings us to the consideration of the election law of Kentucky, which specifies the “manner” in which elections shall be held in that State. It enacts that the sheriff of each county shall advertise, at least one month before the first Monday in August, in every year, the time and place of holding the election, and what offices are to be filled; and that the sheriff, or other presiding officer, shall, on the day of election, open the poll-book by ten o'clock in the morning, and continue the same open at least one hour before sun set each day. It directs the county court of each county, at their session next preceding the election, to appoint two of their own body as judges of the election, who are to hold their offi
ces for one year, and a proper person to act as clerk; but before sunset? If the expression by ten means, precisely in case the county court should not appoint, or any of the at ten, then he has no discretion; but if, according to the
persons appointed should fail to attend, the sheriff shall immediately preceding any election, appoint proper persons to act in their stead. It requires the judges of election and the clerk, before proceeding to act as such, to take the oath prescribed by the constitution; and expressly declares that “they shall attend to receiving the votes until the election is completed, and a fair statement made of the whole amount thereof;” and requires that “the persons entitled to suffrage shall, in the presence of said judges and sheriff, vote personally and publicly, viva voce.” Unless the sheriff, or any one of the judges, shall know the person offering to vote to be entitled to suffrage, the clerk is directed to administer to him the oath that he believes he is twenty-one years of age; that he has resided two years in the State, or in the county one year last past, and that he has not previously voted at that election; or one or more parts of the oath may be administered, so as to remove the doubts of the sheriff or judge. This is the manner. Now, it is said by the Committee of Elections to have been violated in two particulars. 1st. That on the first day of the election the sheriff appointed a person to act in the place of one of the judges appointed by the court, who had not arrived; and proceeded to open and hold the election before 10 o’clock, to wit: at 9 o'clock, many of the voters being assembled who, in consequence of the prevalence of the cholera, were anxious to vote and return home. At 10 o'clock the judge appointed by the court appeared, took his seat, and the sheriff’s judge retired. It is contended that all the votes given before 10 should be rejected; twenty-five had been polled, twenty-two of which were for Mr. Letcher; consequently they have taken three from Mr. Moore's poll and twenty-two from Mr. Letcher's. 2dly. On the second day of the election, the sheriff was called home by the extreme illness of his wife by cholera, of which she died, and he appointed an individual to take his place till his deputy could arrive, which was in the course of one or two hours. It is also contended that all the votes given in between the absence of the sheriff and the arrival of his deputy should be rejected. It seems forty-five had been takeh, thirty-two for Mr. Letcher and thirteen for Mr. Moore. These two operations make a difference in Mr. Letcher's majority, originally forty-nine, of thirty-eight votes, and will consequently reduce it to eleven. These eleven and more are afterwards reduced by illegal votes, thirteen of which are rejected because they were students of a college, situated in the district, whose parents lived out of it, and therefore it is contended their residence was not such as to entitle them to vote. This point not being before the House at present, I shall reserve my remarks upon it for another occasion. It appears that seventy legal votes, against which there is no manner of objection, have been rejected because of an alleged informality in holding the election. Mr. Speaker, I shall contend that there was no informality, and if there was, it is not of a character to be regarded; and further, that even if it ought to be regarded, it is not such as to have produced the conclusion to which the committee have arrived, viz: to make it operate to the prejudice of one and to the profit of the other of the candidates. If it vitiates the election to any extent it must to the whole. Sir, there was no informality; the law was substantially complied with. Let us consider the first objection as to the opening of the election. The sheriff is to open the election by 10 o’clock, and to keep it open until at least one hour before sunset. Need I
plain common-sense, popular meaning of that language, (independent of the strong circumstances standing in connexion with it, such as the discretion given him as to the time of advertising and closing the election,) it imports, as is often used in the business transactions of men, on or before ten, then he has a discretion, of which he cannot be deprived. But it is said this construction deprives the judge appointed by the court of his right to preside, and having until ten to signify his pleasure to do so or not, the sheriff is bound to wait till that hour before he exercices his right to appoint a judge, under the law, and proceed to the election. Now, sir, the fair construction of laws, or contracts, is to make all their seeming inconsistencies stand, if possible, to give effect to its contradictions, if it can be done without manifest injury to its true spirit, object, and intention. Who does not perceive that this can be done, and done with the utmost propriety, in relation to this law? "The Legislature were regulating the exercise of a great right of the people, and as their immediate representatives, in which they were as deeply concerned as their constituents; it could never have been their intention so to trammel and fetter this great interest as that the slightest misconstruction of their object should defeat the right. They had as much confidence in the sheriff, and the judge to be appointed by him, as they had in the county court, and the judges to be appointed by them. They were both designed to facilitate and give effect, to the great right of suffrage; and when they were guarding against certain contingencies which might prevent an election, they never dreamed, nay, they could not, that this very caution would be the means of defeating their own privileges. Could they have any such, inducement to place their rights, the most inestimable of all rights, without which all others are nothing, in such a situation that their exercise could only be attained by the most vigilant circumspection, as well as the most careful and accurate legal learning? It cannot be believed. Then what is the reasonable construction of this law? That specific limits should not be prescribed as to time, in conducting the election so as to impair the limitation of three days allowed by the constitution of Kentucky, in which the election is to be held. The time contained in that instrument no law could shorten; and though, from necessity, the whole could not be enjoyed, yet doubtless the Legislature, intending to afford the voters as much of it as possible, were anxious not so much to abridge as to prevent the sheriff from doing it; and hence it will be perceived, in every instance, where he had any thing to do with it, he was required to lose as little as the nature of the case would admit. It was more an enlarging than a restraining consumption of the three days, and every one must see the real mischief to be apprehended, was the waste rather than the use of the allowed time. For if the people in their convention had believed three days necessary to a given object, they cannot in their legislation be supposed to be so idle as to deprive themselves of it even if they could s and, therefore, in the true spirit of the constitution, the legislation promoted rather than restricted the grant. Under this view the fair construction would be this: says the law the election must be opened by 10 o'clock; beyond that time the sheriff must not go; but before that time we give him a reasonable discretion (as is all legal discretion) to begin the first day's work. We have, to be sure, authorized the county court to appoint two judges to superintend it; they, however, have a full knowledge that we have also granted to the sheriff the power to open
enter into a criticism upon words to show that by does the election before ten, and, in case of a failure to attend not mean as 2 Will any one contend that the words of law on the part of the court’s judges, we have authorized both as to the time of opening and closing the election him to appoint judges in their stead. Now, if at a readoes not confer upon the sheriff a discretion? May he not sonable time before ten, the voters wish to commence the begin before ten, and continue the election after the hour election, where is the possible injury that can result to Kentucky Election.
May 21, 1834.)
the exercise of their right, by telling the sheriff to appoint his judges under the law and proceed to business? When the judges appointed by the court shall arrive, and claim, by virtue of their appointment for a year, the right to conduct the election, where is the harm to suffer them to take the place of those chosen by the sheriff, who, in the language of the law, in consequence of their failing to attend, is required immediately preceding the election to appoint proper persons to act in their stead?” This construction enables the rights of all parties to stand, as well those of the sheriff and his judges, as the court and their judges; and all being officers equally trustworthy, and constituted by law as the machinery to effect a great public object, no election can or ought to be distrusted which has been held under its agency. The construction insisted upon by the committee leads to this singular absurdity: they say the sheriff must wait till 10 o'clock, before he can appoint his judges, lest the other judges might come and claim their right: then who does not perceive they require of him to do two things in the same instant of time? According to law, he must not let 10 o'clock pass; if he does, he violates the law. According to the committee, he must not appoint his judges till ten; therefore, if at that precise moment of time he does not proclaim to the people that the election is opened, and also call upon proper persons, who are to be sworn before they can act, to serve in the place of the absent judges, he evidently fails in his duty, so that an impossibility is reguired of him. If, therefore, he can appoint five minutes before ten, the point is yielded; for every one must admit he can sixty. If he waits till after ten, the election is contrary to law. I only mention this to illustrate how unsafe, if not ridiculous, it is to suffer ourselves to be governed by a little, contracted, narrow, lawyer-like principle of construction, in giving effect to laws designed to execute great political rights. Sir, such a rigid construction will defeat nine-tenths of the elections throughout the United States. I will show that not a member from Georgia can hold his seat under this black-letter rule. The law of my State is in the fol. lowing words: “All elections for members of the General Assembly, and for Representatives in Congress, shall be held at the court-house, or place appointed for holding the superior courts in the respective counties, and the electors thereat shall vote (now) by ballot. It shall be the duty of any three or more of the magistrates of each county, not being candidates, to preside at, and make returns of, all elections for Senators and Representatives in the General Assembly, and Representatives in Congress; and the sheriff of each county, or his deputy, is required to attend at such elections, for the purpose of enforcing the orders of the presiding magistrates, and preserving good order.” And again, “the presiding magistrates are empowered and required to appoint three clerks to attend said elections, whose duty it shall be to keep three rolls.” The law is express that “the time of opening the elections shall be at the hour of seven o'clock in the inorning, and be kept open until the hour of six in the afternoon, and then close.” Now, sir, I appeal to every member from Georgia to say whether it is not the constant practice of our magistrates and clerks to change places throughout the day, with others who come to relieve them in the labors of the occasion; and whether we ever open our elections till eight or nine o'clock. In what does this differ from the Kentucky law? Only in the mode of appointing the superintending magistrates. The Georgia law makes the appointment itself, the other authorizes the county court to do it. Their duties are the same, and, though expressed in dif. ferent language, precisely the same services are required. The Kentucky law requires the county court to appoint two of their own body as judges of the election, and a
[H. of R. any three or more of the magistrates of each county, to preside at and make returns of all elections; and empowers them to choose their own clerks to “attend said elections” and keep the rolls. The words “any three” has reference to the body of magistrates in the county, being generally from twenty to thirty, and not to the idea of alternation at the election. The Kentucky law means no more, when it says two of the body of the county court shall be the “judges” of the election, than the Georgia law when it declares that three of the body of the magistrates of each county shall “preside at” and “make returns of all elections.” “Preside” means all that is conveyed by the word “judges.” The Kentucky law requires that they shall attend to the receiving of the votes, until the election is completed, and a fair statement made of the whole amount thereof.” The Georgia law means precisely the same thing when it directs its magistrates to “preside at and make returns;” for they cannot do this unless they remain there during the whole election, which is to be from seven to six o'clock. To preside at, and make returns, “they” must receive the votes “and continue until the election is completed.” And when it is urged that a Kentucky magistrate cannot make a fair statement of the whole amount of the election unless he remains there all the while, I answer, a Georgia magistrate cannot “make a return” of the election unless he does the same thing, for he can no more certify for the different magistrates who have presided before him throughout the day than can the Kentucky magistrate. And so with regard to the clerks who are required to keep the rolls. Our law requires the sheriff to attend the election. For what? To enforce the orders of the presiding magistrates, and preserve good order. He is a ministerial officer; he has no right to exercise any judgment in the election; he may be called on to give testimony as to the qualifications of voters. Unless the sheriff is expressly clothed with judicial power by some law, he is always a ministerial officer, and therefore his presence is not always necessary in any tribunal where he may be called to act. Where he is to exercise his judgment it may be necessary, but where he is to act ministerially or to testify, he is not necessarily obliged to be present till the occasion arises which makes it needful; and hence the sheriff at our elections, and indeed at all courts, is frequently absent till an occasion demands his ministerial services. By the election law of Kentucky his ministerial character is not changed. His duties, then, are precisely the same as the Georgia sheriffs; they are ministerial, with the superadded character of being a ready witness to detect illegal voters if it should become necessary; and this does not imply an absolute necessity to be always present. I repeat, he is no judge; to open, close, and proclaim the election, to keep order and testify as to the qualifications of the voters is all that is required of him by the law. While the judges and clerk appointed to preside are sworn, the sheriff is not. He passes no opinion with the rest of the presiding officers in any matter of dispute. The judges may admit a vote even after he has given information that, in his opinion, it is illegal. If he acts any where in Kentucky as a judge, it is by permission; for he has evidently no such power by law. It is only by contending that he is a judge, that you make his presence necessary, and this character is merely inferred from two expressions in the law, viz: “that the sheriff or other presiding officers shall open the polls,” and that “the voters shall vote in the presence of said judges and sheriff; and unless the sheriff or one of the judges shall know the person offering to vote to be entitled to suffrage, the clerk is directed to swear the voter,” &c. Now, from these two clauses it is inferred that the sheriff is made a judge of election. Are gentlemen aware of the consequences of making the sheriff a judge? Judges cannot make deputies. The moment he
proper person to act as clerk. The Georgia law appoints
loses his ministerial character he is unable to make a