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of; and requires that the said persons entitled to suffrage
shall, in the presence of said judges and sheriff, vote per-
sonally, publicly, and viva voce.
Now, sir, had the sheriff a right before ten o'clock of
the morning of the first day, to declare that a vacancy ex-
isted, and appoint a judge in the place of the one who
had been appointed by the county court? This, sir, is
the question; not, as has been somewhat artfully urged,
whether the sheriff had a right to open the polls before
ten o’clock, all the judges being present.
I contend, sir, that the sheriff, most manifestly had only
a right to appoint, in the alternative, upon a certain con-
tingency; and if any rule of law, or any principle of com-
mon sense is well settled, it is this, that when a power is
contingent, it cannot be exercised till such contingency
clearly and unequivocally happens. The idea that the
sheriff has a right to go to the place where the election
is to be held at any time after midnight, and finding none
of the regularly appointed judges there, appoint a full
board, upon the assumption that all the judges appointed
by the county court “have failed to attend,” derogates
from, and in effect may wholly destroy, the main and
primary appointing power, selected and created by the
Legislature, no doubt for wise purposes, from a regard,
perhaps, to their superior fitness and qualifications.
The Legislature of Kentucky has certainly deemed the
county court a safer depository for this appointing power
than the sheriff. If not, it would have clothed the sheriff
with full power to make the appointment in the first in-
stance, and would not have provided another source of
it would, then, sir, be frustrating the intcntions of the
Legislature, to permit the sheriff, who had at most a
mere secondary alternative appointing power, to antici.
pate, and wholly supersede, by any premature action on
his part, the agency of that body which the Legislature
deemed better fitted to exercise this high power of ap-
pointment than is the sheriff. Nay, more; it would be
completely subjecting the elections to the control of par-
tisan sheriffs. The friend of a particular candidate might
have an understanding with the sheriff, to be at the court-
house at day dawn in the morning; the competitor of his
friend not having had notice of this intended manoeuvre,
none of his friends are on the ground; the sheriff takes it
upon himself to say that the judges appointed by the
county court have “failed to attend,” and appoints a full
set of inspectors to preside at the election; he takes care
that they are the adherents and supporters of his favorite
candidate; the election proceeds; no one is present to
challenge the voters, or gainsay the legality of the pro-
ceedings. . By ten o’clock, the usual, and, as I contend,
to legal time for opening the polls, two-thirds of the
votes of a town or precinct may be given in, and by this
operation on the part of the sheriff of “seizing time by
the forelock,” the fate of the election may be determined.
Sir, is it safe, is it just to sanction a principle by which
the rights both of the electors and the candidates may be
exposed to such imminent danger from the partiality or
corruption of a single man? The answer to this question
will be involved in the decision which the House may
gye upon the amendment of the gentleman from Penn-
sylvania [Mr. BANKs] now under discussion.
We are told, sir, that the electors, according to the
constitution of Kentucky, were entitled to three full days
to give in their votes, and that the sheriff therefore had a
right to open the polls at any time after twelve o'clock at
might. Here, gentlemen are strict constitutionists. They
would here hold us to the letter of the constitution; but
when referred to a law of Kentucky, prescribing the
manner of holding the election, then, it seems, indeed,
that relaxation seems to be a darling principle with them.

The rights of the voter, the will of the elector, are then
Wol. X. --269

so effulgent as not only to dazzle their imagination, but as to throw the positive requirements of a State law, made according to the constitution of the United states, entirely in the shade. Yes, sir, they are strict constitutionists of the most inflexible Southern school, when they are called upon to interpret the constitution of Kentucky, and more than ultra tariff, internal improvement, incidental power, national bank latitudinarians, when re. quired to construe a law of Kentucky, made under the authority of the federal constitution. Though the constitution of Kentucky provides that the election shall be held for three days, it was clearly com. petent for the Legislature of that State to provide that the poll should be opened at ten o'clock in the morning. The words “three days,” sir, are not to be literally and strictly construed. No, sir. They must receive at our hands a reasonable interpretation. They may be construed to mean such portions of a day as shall consist with the convenience of the voter, and as shall secure the fair. est and most thorough expression of the public will. If the law comes in, and fixes such an hour for the opening of the polls as shall consist with the convenience of the voter, and the fair and orderly expression of the public will, then, sir, this regulation of time works no abridgment of the rights of the elector, and is not therefore repugnant to the constitution. Constitutional provisions must necessarily be general. They cannot go into details. In order to carry them into practical operation, legislative additions are almost invariably necessary; and any legislative act which subserves the general interest or convenience of the parties for whose benefit, general interest, and convenience, such general constitutional provisions are made, cannot be deemed to be repugnant to such provisions. In order to show the fallacy of the argument that the electors are entitled to three full days, and that it is not competent for the Legislature of Rén. tucky to abridge the time by directing the elections to be held within particular hours of those days, I will only state a single example. The constitution or laws of some of the States provide that each term of their supreme court shall be held and shall continue four weeks. Give a literal construction to this provision, and what is the consequence? Why, suitors would within such term be entitled for twenty-four hours of each day to the services of the judges of the court. Sir, the interpretation insisted upon by the gentlemen who advocate the claims of Mr. Letcher, is about as reasonable as the construction attempted to be given to an act passed in the reign of one of the monarchs of England, and related by Sir william Blackstone, in his admirable Commentaries. The case is familiar to all professional gentlemen. A statute was passed denouncing a penalty against any person who should be guilty of drawing blood in the public streets; and it was by some insisted that this applied even to a physician who applied the lancet in the public highway to save the life of his patient. It has, however, been contended, sir, that the Legislature has not, in express terms, fixed upon the hour of ten for opening the polls; that the expression, that the polis shall be opened by ten o’clock, contains no prohibition against opening them before that hour. For the purpose of testing the validity or invalidity of Grant's appointment, made before ten o’clock, I hold that this clause or expression is equivalent to an express provision that the polls shall not be opened before ten o'clock. Whenever a party has a time provided by law for the doing of an act, he always has until the latest period of such time for the doing of it. The judges appointed the county court, had until ten o'clock to enter upon their duties. Let me state a few cases, sir, by way of illustrating and fortifying this position. Suppose an act of the Legislature of a State should provide that the criminal courts of each county of a State should consist

H. of R.] Kentucky Election.

of three judges, and should be opened “by ten o’clock,”
but that, upon failure of one of the regular judges to at-
tend, one of the aldermen of a city in such county
should take his place and officiate as one of the judges,
would the alderman's right to ascend the bench com-
mence before ten o’clock? Sir, it will not, it cannot be
pretended, that he would be other than a usurper, if he
should take the judgment seat before that time; because
the contingency that gave birth to his right would not
yet have occurred. Again: Suppose a statute to provide
that all sales of real estate, by virtue of executions, should
be made by ten o'clock of a particular day of the week,
by the sheriff of the county; but that, upon “failure of
the sheriff to attend,” such sale might be made by a
deputy of the sheriff; would the deputy's right to act
originate before ten o'clock, if the sale was not adver-
tised for a particular hour? (as was the case here, it seems,
in regard to the Lancaster election.) . No lawyer, sir,
would so far expose to contempt his head, or to suspicion
his heart, as to contend, in such case, that the officer
having a contingent power, had a right to act before such
contingency clearly and unequivocally happened. Sir,
these contingent powers must always be strictly con-
strued, especially when they supersede primary and an-
tecedent powers.
Much, sir, has been said about officers de facto, and
the gentleman from Pennsylvania [Mr. BINNEY] expresses
his astonishment that gentlemen, with a knowledge of the
doctrine of de facto authority, would make a report like
that of the majority of this committee; and here, sir, I
must beg leave to remark, that I could not comprehend
the meaning, or feel the force of all the refined reasoning
of the honorable gentleman. Though he had my utmost
attention, during the whole of his very elaborate speech,
yet a portion of his arguments were either so subtle, so
attenuated, as either to baffle my mental vision, or my in-
tellectual optics were so blurred by the false lights in this
case, upon which they may have been too long riveted,
as to be wholly unable to perceive and appreciate the
force of the honorable gentleman's positions. It is mat-
ter of consolation to me, however, while thus speculating
as to the causes of my inability to understand all that the
learned gentleman said, that I am not singular in this mis-
fortune, but that other gentlemen, who can boast much
more perspicacity than can the humble individual who
now addresses you, have also complained of their utter
inability to comprehend all the wiredrawn reasonings—l
will not say all the refined sophisms, of the honorable
But, sir, permit me to ask what is this magical doctrine
of de facto authority, which, according to the notions of
gentlemen, would seem to dispense with all legal and
constitutional qualifications in public officers? I entreat
gentlemen to recollect that our position is here, that if
the sheriff had no right to appoint before ten o’clock,
then Grant was a mere usurper, and was not clothed with
even a de facto authority. If the appointing power, the
foundation, was rotten, the superstructure must cer-
tainly fall to the ground. What, sir, is this doctrine of
de facto authority? I have not, Mr. Speaker, had time to
look into the cases, but, according to my recollection of
them, it is this, that whenever a person assumes the du-
ties of an office by color of right, and the public acqui.
esce in his acts so as to induce a fair presumption in the
community that he is a legal officer, his acts and his au-
thority will be sufficient to protect the rights of third
persons, though his appointment to the office whose du-
ties he discharges may have been informally made.
Take the familiar case of a marshal or sheriff by repu.
tation; he acts as such; the community day after day see
him execute process as such; he is every where recog-
nised as such; then, sir, any informality in his appoint-

ment shall not prejudice the rights of innocent third per-|tificate make,” &c.

[May 28, 1834.

sons, because there, sir, is the ingredient of reputed au-
thority, united with the ingredient of public submission to,
and public aquiescence in, his authority. But, sir, if an
individual should suddenly spring up in a county or dis-
trict, and usurp the office of marshal or sheriff, and the
same day he so usurps it, go abroad and execute its du-
ties, I deny that the first, the isolated act of such usurper,
would protect the rights of third persons. Here, sir, is
a total want of that acquiescence in Grant's authority,
which I suppose to be necessary to the perfection of this
de facto authority. His agency there, that morning at
Lancaster, was his first agency as a judge of the election;
and, if it be true that a single act of a usurper cannot in-
vest him with the character of an officer de facto, then
Grant, most clearly, was not invested with the attributes
of such officer. If a collector of a town should neglect
to file his bond, and therefore his appointment might not
technically be consummated, and he might, perhaps, be
ousted by a quo warranto, yet payment to him would
doubtless protect the community from a second tax-gath-
erer; but if a usurper should steal a copy of the assess-
ment roll, and collect the assessments of some fifteen or
twenty individuals before his usurpation was discovered,
I maintain, sir, that a payment to him would be no pro-
tection against the demands of the legitimate tax-gatherer.
Should a judge, who had not complied with all the forms
and ceremonies necessary to consummate his appoint-
ment, sit upon the bench term after term, and discharge
judicial functions, he could, no doubt, boast the character
of an officer de fac'o, if he were not strictly one de jure,
but suppose a man to mount the bench for the first time,
who is a mere usurper, would his acts during such first
term acquire the force and authority of acts emanating
from a de facto officer. Most certainly not, sir.
But, sir, the distinction taken by the gentleman from
Ohio, [Mr. HAMER, between acts that are void and acts
that are voidable, is a sound distinction. There is a wide
difference between an officer who claims under an ap-
pointment that is merely defective or informal, and one
who derives his appointment from a source that has no
power to confer the office. In the one case, the ob-
jection is rather of a formal character; in the other, it is
substantial and fundamental. If a man acts under an ap-
pointment derived from a proper source, but not made in
strict conformity to all the requirements of the law, his
office may be taken from him, and his authority may be
voidable; but if he derives his office from a source that
has no creating energy at all, he is as perfect a nonen-
tity, as to any official power, as is the source from which
he derives his office as to any creative power. It re-
sults from this reasoning, then, sir, that if I have succeed-
ed in showing that the sheriff had no right to make a
judge of Grant before ten o'clock in the morning, then
Grant’s authority, derived from the sheriff, was void, not
voidable, and he had no more right to receive the votes
than had any other elector who was at the Lancaster
polls on the first day of the election.
There is another fatal objection, sir, to this appoint-
ment of Grant. The very commission (if I may call it so)
given by the sheriff' to Grant, at the time of his appoint-
ment, was void on its face. It appears abundantly, from
the depositions on your table, that Grant was considered
to be appointed only “till Wheeler came.” The sherifio
knew then, sir, that Wheeler, the judge appointed by
the county court, would come, and that, therefore, there
was not, and there would not be, “any failure to at-
tend.” . And here another difficulty springs up which
goes to demonstrate, most conclusively, the illegality of this
whole proceeding. According to the law of Kentucky.
the judge who opens the poll must close it; for the

statute provides “that he shall attend to the receiving of the votes until the election is completed, and a true cerNow, sir, if Grant was lawfully apMay 28, 1834.]

pointed at nine o'clock, he was in for the entire election. The office of Wheeler was vacant, and he could not enter upon his duties without a new appointment. Still, though the sheriff had declared Wheeler's office vacant, and had undertaken to fill the vacancy, yet, when Wheeler arrived at ten o'clock, Grant left the bench, and wheeler mounted it under his first appointment, which the sheriff had decided to be vacated. Wheeler certifies all the votes taken before ten o'clock, notwithstanding the peremptory requisition of the law that the judge who enters upon the duties of the office “shall attend to the receiving of the votes until the election is completed, and a true certificate make of the votes!” Could Wheeler, either in law, or in good sense and conscience, certify, under his oath of office, the votes taken when the pro tempore judge acted? Every gentleman will readily answer no; and yet, with all these accumulated and most formidable difficulties staring us in the face, there seems to be quite too great a facility here to say, Oh, all these objections are merely technical and formal. The will of the voter is our only polar star and guide, no matter in what manner that will was expressed. Sir, will not such doctrines, if they prevail, lead to anarchy—to the prostration of the rights of the elector, which we now seem so anxious to protect--to the blasting of all our hopes of the success of free government? If, sir, the fact of the sheriff’s sinning here against light and knowledge, could possibly fortify the positions for which I have contended, then I might argue that the sheriff knew he violated the law, and practised a fraud upon the rights of the electors of the precinct where he opened the polls, and appointed a new judge at nine o'clock in the morning; for it appears from the depositions that, in 1831, when he was a candidate for an elective office, he protested against opening the polls before ten o'clock, and on this very occasion, on the morning of the first day of the election at Lancaster, he was expostulated with, and urged not to open the polls before ten o'clock. Yet, now, it seems he had a different view of his powers and duties from what he supposed belonged to a sheriff when he was a candidate a few short years ago. How true it is, Mr. Speaker, that the opinions of men depend very much upon the different positions in which they are placed. This, sir, brings me to the inquiry whether the votes taken on the second day of the election, when the sheriff was absent, were received according to law. Mr. V. said he would not detain the House long upon this branch of the subject, because it was so ably and fully discussed in the printed argument of Mr. Moore, which lies upon the tables of gentlemen, that he (Mr. V.) deemed it quite unnecessary to attempt to add much to the very cogent considerations that were urged in that very able paper. But he might be suspected of a want of confidence in this point, should he entirely omit to expatiate upon it. It has been urged, sir, that the sheriff has no judicial powers to perform at the board, according to the fair construction of the law of Kentucky. Sir, this is an entire mistake. According to my understanding of the law, he has very high and important duties to perform at the board. The law provides “that the persons entitled to suffrage shall, in presence of the said judges and sheriff, vote publicly, personally, and viva voce.” The sheriff is understood to be the presiding officer at the elections, and it seems to be generally conceded by gentlemen from Kentucky that, when the judges disagree, the sheriff gives the casting vote. An elector has a right to vote upon the sheriff's personal knowledge of him, without the concurrence of the knowledge of the judges; the oath to be administered to the elector is declared to be “to remove the doubts of the sheriff or judges.” The sheriff is to proclaim who is elected at the close of the election. He is to take the poll-books for the pur

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pose of comparing them with those of other precincts and counties; and yet it is gravely and strenuously contended that the sheriff's presence at the polls can as well as not be dispensed with; that the law confers on the sheriff no judicial capacity; that the sheriff, or his deputy, can descend from the bench, mount his horse, and scour the country to rally voters for his favorite candidate; that he is a mere peace officer, and that he may, by way I suppose of keeping the peace, involve himself in political broils and quarrels out of doors, during the progress of the election; that he may resort to the conclusive argument of the sword-cane, by way of settling a political dispute in which he finds himself engaged; that he may be permitted to over-fatigue himself by overexertion to rally voters for his friend, lie down and repose his head upon his saddle-bags in a remote corner of the room, and that all this is a satisfaction of the requirement of that portion of the law of Kentucky which declares “that the suffrages shall be taken in the presence of the sheriff and judges.” If the House shall be prepared to say so, then there will indeed seem to be a disposition here to dispense with those safeguards which the laws and the constitution, for the wisest of purposes, have seen fit to plant around the right of suffrage. But it has been urged, in excuse of the delinquency of Kennedy, the high sheriff, that his wife was sick, and that he was therefore obliged to go home. Then, I ask, where was Yantis, that deputy who, with Mr. Kennedy, had alternately acted as presiding officer? The depositions tell us where he was. He was riding through the country drumming up voters for Mr. Letcher. On Monday morning, then, sir, according to the argument of gentlemen who oppose the doctrines of the report of the majority of the committee, the sheriff is all-important and all-powerful. He can open the poll when he pleases, declare a vacancy in the office of the judges before ten o'clock, and not only manufacture, but get in motion the whole machinery of the election, but on Tuesday, when he is absent from his post, which the law has so emphatically assigned to him, his presence is not deemed at all necessary. Sir, it will not answer to make one law or one argument for Monday, and another for Tuesday; but gentlemen seem to find no difficulty or embarrassment in doing so. And on what ground, sir, are these departures from the positive laws of a State attempted to be justified? Gentlemen in search for reasons to justify the high power which they now call upon this House to exercise—the power of nullifying and disregarding the exactions of a State law, made in pursuance of the constitution of the United States—-tell us that the rights of the electors are above the law; that they are natural rights; that they are inalienable; and all these sublimated, though false notions, do they indeed seem to be influenced by, in a case where we have the most unerring lights to guide us. The gentleman from Ohio [Mr. HAMER) has triumphantly refuted the idea that the rights of the voter are above the law and the constitution, or that they belong to us in a state of nature. I am surprised, indeed, to hear such disorganizing doctrines urged on the floor of the House of Representatives, as have been put forth by gentlemen who oppose the report of the majority. I go, sir, for the right of suffrage to its fullest extent. I hold that every man is justly entitled to a vote who has any interest in good government, and that though the poor man may not have much property that looks to Government, to the laws, and to the makers of the laws, for protection, yet he has his life, his 'liberty, and his means of pursuing happiness, that call for governmental protection, and that he ought not to be disfranchised, because his is the hard fate of the poor. No, sir. I would freely accord to him the right of an equal voice in the selection of those whose duty it is to enact laws for the

H. of R.] Kentucky Election. - [May 28, 1834.

rich and the poor, the high and the low, the noble and I had always supposed that all legal ends in civilized

the ignoble; but, sir, I cannot yield to the idea that, hig

h communities, and under free and constitutional Govern

and invaluable as is this right of suffrage, it is a right ments, were to be attained by lawful and constitutional above the laws and the constitution, and that, in order means; and that it is better, far better, that the end

to give effect to it in a particular case, those laws an

d] should sometimes be lost than adopt the more than Van

that constitution, which were designed to save it from dal heresy, that the “end justifies the means.” savage licentiousness on the one hand, and aristocratic Mr. VANDERPoel having concluded his remarks--, . encroachment on the other, may be trampled under foot. Mr. POPE, of Kentucky, rose, and addressed the Chair No, sir. I go for the law and the constitution, whether as follows: they define the qualifications of the voter, or prescribe Mr. Speaker: After the able and elaborate arguments

the manner in which this right shall be exercised; an

d|submitted by the parties to this contest, by the majority

I cannot here be persuaded either to jump over the con- and minority of the committee, and by other honorable stitution or crawl under the law, by the captivating doc- gentlemen who have preceded me in the discussion, I cantrine, that the right of suffrage is paramount to the law not flatter myself with the belief that this House will be and the constitution. No, sir. This right, inestimable much interested with the views which I propose hastily as it is, is indeed the offspring of the social compact. to submit for its consideration.

If it were not, why all these qualifications and disquali- Had this contest arisen between two gentlemen of fications in relation to the right of suffrage, with which another State than the one which I have the honor in part the constitutions and laws of the several States are so re- to represent on this floor, I should have forborne to tres

plete? If this right of suffrage be one of our natural and

pass on the time, now so precious, of this House. But

inalienable rights, why, as the gentleman from Ohio has the deep interest which a portion of the citizens of Ken

so pertinently asked, not extend it to females and slaves,
and all classes and descriptions of persons? Why tell
me, sir, that I must reside six months in a county, and
a year in a State, before I can be permitted to exercise participating in the discussion.
“this natural and inalienable right,” if it is so far elevated this necessity exists.
above the laws and the constitution of my country? Rely

tucky feel in the result of this controversy, and an earnest desire to vindicate successfully the conclusions of my judgment, will, I trust, be a sufficient apology for my I regret, however, that I regret that the refusal of Mr. Letcher to comply with the proposition of Mr. Moore, to

upon it, Mr. Speaker, that gentlemen could not have submit their respective claims again to the people, has

apprehended the mischievous tendencies of their own doctrine, when they told us, in effect, that where the rights of the voter come in conflict with the laws and the

constitution, we, in the fulness of our affection for th

elective franchise, with most vain-glorious notions of undefined and undefinable, unlimited and illimitable equita

imposed upon this House the disagreeable recessity of pronouncing a decision between them. Unpleasant, however, as that duty is, it must now be discharged, be the e consequences what they may. And in discharging it, we

should recollect that the country requires us to discard all feelings of a personal or party nature, and decide this case

ble powers, can break through the sacred barriers of the according to the constitution and laws of the land. It is

law and the constitution, as if they were the merest cob

webs, interposed to obstruct the career of giants.

by this standard the respective claims of those gentlemen are to be tested; and, if it be fairly done, no one has

It has been said, sir, that the rights and the will of the a right to complain.

voters in this case, at Lancaster, who voted before ten
o'clock on the morning of the first day, during the ab-
sence of the sheriff, would be wholly defeated if we
should adopt the rules for which the majority of the com- candidate into a seat in this House.
mittee contend. Sir, this argument of possible and par- exists for such a course?
ticular mischief, from an adherence to the laws and the

constitution, is always a dangerous argument. It migh

as well be said, that, because the rains of heaven that
refresh and fructify the earth sometimes destroy valuable
lives, sweep away the most cestly edifices, and desolate
whole regions of country, therefore all refreshing
showers might better be dispensed with. Every hu-
man invention and institution, sir, however salutary in illegal.
its general effects, may work occasional and partial mis-
chief . This appears to be an order of nature. Yes, candidate into this House?
sir, it is incident to the imperfection of human wisdom;
but it must be remembered, sir, that partial evil is some-

times the parent, and sometimes the daughter, of genera good; and that is indeed a weak and short-sighted phi

losophy that would repudiate a law or rule which is salutary in the main, because it may, by possibility, work

occasional and partial injury.

But, sir, if we can fancy evils that may flow from the observance of the principles and rules for which the majority of the committee contend, can we not imagine some that may flow from the other doctrine? Is there not danger, most appalling danger in the doctrine, that, if the will of the voter is only expressed, it matters not through whom it is expressed; that the agents prescribed by law to secure the fair and orderly expression of the popular will may be dispensed with; that whether in the State of Kentucky. John or Richard be the agents of the law, or self-constituted agents, to receive the votes of freemen, is immaterial, so that the will of the voter is only expressed? Will not this lead, sir, to a perfect mobocracy? Sir,

But here, Mr. Speaker, I must protest against the efsort which is made by honorable gentlemen to convince the country that a struggle is made to force the minority What justification Has not a committee, composed of gentlemen selected for their capacity and probity, been industriously engaged, during this session, in ascertaining who is the rightful representative of the 5th congressional district of Kentucky? and have not five out of seven reported that Thomas P. Moore has received a majority of all the legal votes polled in that district; and that, too. without rejecting any votes but such as are spurious and l. This being the case, what authority exists for the assertion that there is an effort made to force a minority Have not five honorable gentlemen of that committee informed us in their report that, after deducting bad votes given on both sides, 1|(without excluding the votes given before 10 o'clock of - the first day, and those given on the second day, in the absence of the sheriff,) Mr. Letcher is left in a minority? The committee has been long, and patiently, and sedulously engaged in this duty. The presumption is, that the five are correct, and the two are incorrect in their respective conclusions; and I would place more confidence in their opinions than in those of other members who have not had an opportunity to give to this subject the same sifting, searching, scrutinizing investigation. I have examined this case, Mr. Speaker, with much care, and am inclined to the opinion that Mr. Moore is the rightful representative of the fifth congressional district In truth, I think even the ma— jority of the committee have done him injustice. In my humble opinion, they have refused to reject suffrages given to Mr. Letcher, which the constitution and the lavv. reason and propriety, required should be excluded. t

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May 28, 1834.]

will not detain the House to assign repeated individual instances, but will stop to refer to three votes given to Mr. Letcher which the committee held to be good. These votes were given by persons who were deaf and dumb. It may be said that it is hard to add civil to natural dis. qualification—that it is unjust to strip them of the elective franchise. Sir, no man feels a livelier sympathy for such unfortunate beings than myself. No one would go farther to add to their comfort and happiness, or to illume the changeless midnight of their mind than myself: but neither compassion nor sympathy can alter the constitution and the law. I consider myself sworn to test this question by a legal touchstone. I feel bound to inquire, not what I could wish, but what is the law. Both the constitution and the law of Kentucky imperatively declare that the persons entitled to suffrage shall vote “personally, publicly, and viva voce.” Although a previous clause of the constitution extends that great privilege to all free male persons above the age of twenty-one years, except Indians, negroes, and mulattoes, yet a subsequent clause of the same instrument restricts this right, by prescribing the manner in which it shall be exercised. This latter clause is of equal if not of superior obligation with the first; and if it shall turn out that one who claims the right of an elector cannot vote viva voce, he is not entitled to it. Now, I would respectfully inquire, if it is not physically impossible for one deaf and dumb to vote publicly, and “to roce.” He has no living voice; his lips are sealed in silence; he is mute as the voiceless grave; he cannot comply with the constitutional requisition of voting ora too. It is his misfortune, not my fault. If fault it be, it is in the constitution. He cannot vote by ballot, nor by proxy. Both of these modes are interdicted. The only remaining one is a “viva voce” vote, and that it is physically impossible for him to give. But, Mr. Speaker, I am not left to the unsupported tonclusions of my own mind on this subject. One of my honorable colleagues, [Mr. HARDIN,) while a member of the Senate of Kentucky, presented to that body a report in a case of contested election between Williams and Mason. ... From that report I extract the following de‘sign: “James Yocum voted for Williams, decided by a majority of the committee to be illegal, because he was deaf and dumb, although proved to be intelligent. The committee was partly influenced by some proof tending to *how he was overreached.” Now, sir, although the com. mittee were partly influenced by some proof tending to *how he was overreached, yet they expressly declare that they considered it illegal because given by one who was deaf and dumb. Mr. Speaker, I agree with my honorable colleague that this case should be decided according to the constitution and law of Kentucky, and the local expositions of both. And I respectfully inquire of honorable gentlemen if i have not proved from the constitution and law of Ken. tucky, and the legislative exposition just cited, that a person who is deaf and dumb cannot vote in Kentucky. What more is wanted, sir. Is it necessary to show that it is proper and expedient that the constitution should be adhered to? Is it necessary to say to honorable gentlemen that if this feature of the constitution be wrong, let it be altered by amendment? Can gentlemen see no motive for this constitutional disqualification? May it not have been intended to prevent fraud and overreaching? Sir, it has been since the constitution of Kentucky was formed that the means of educating the deaf and dumb have been discovered or applied. Take one who can neither read nor write, how is he to be sworn? Are you to find an inter. preter and swear him correctly to unfold the hidden purpose and meaning of the voter? If so, this difficulty pre*ents itself: in case of perjury, who is to be prosecuted, the voter or interpreter? Who is to be the witness? Could the former be convicted on the testimony of the

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latter? Or the latter on the mute and unintelligible signs of the former? But, sir, I will pursue this branch of the subject no farther. I will leave it to the honorable gentleman to say whether one who is thus bereft of such important natural organs can be a qualified voter in Kentucky until the laws and constitution of the State are altered or amended. I will now proceed, Mr. Speaker, to inquire whether the majority of the committee were correct in excluding from the count the votes of ten theological students at Danville, Kentucky, nine of whom voted for Letcher and one for Moore. On this subject, Mr. Speaker, I differ, tota coelo, from the honorable gentleman from Pennsylvania, [Mr. BUNNEY.] He thinks those students derived a right to vote at Danville from that clause in the constitution of Kentucky which provides that “in all elections for representatives, every free male citizen (negroes, mulattoes, and Indians excepted) who at the time being hath attained to the age of twenty-one years, and resided in the State two years, or the county or town in which he offers to vote, one year next preceding the election, . shall enjoy the right of an elector. But no person shall be entitled to vote except in the county or town in which he may actually reside at the time of the election.” In setting; this point correctly, we must first ascertain the constitutional meaning of the word residence. According to my understanding, it is not a mere continuous breathing for one or two years preceding an election at the place where it is held; but it must mean his settlement—his home. He must not have gone there with the view of leaving the place as soon as he accomplished a fixed and isolated purpose, such as obtaining a collegiate education, but he must have gone there “animo mamend”—with a view of settling there; or, having changed his purpose, he must be, in the broadest sense, a citizen of the place. He must consider it his actual home, and not a temporary residence or habitation, to be abandoned as soon as he accomplished the object for which he went. Let me inquire of honorable gentlemen from Connecticut or Massachusetts if they would consider a Kentuckian who had gone to Cambridge or Yale College to obtain an education, a citizen of either of those States, and as such entitled to participate in their elections. Let me inquire of my honorable colleagues if they would consider a citizen of Virginia, who had gone to Kentucky with the view of investigating land titles and claims, and in consequence thereof had remained in the State continuously for two years, a citizen of Kentucky, and as such entitled to vote at our elections. Certainly not, sir. Yet, if the signification which gentlemen wish to attach to the word residence be correct, he would be entitled to vote. Sir, the meaning which gentlemen propose to give to that word is not a popular meaning; nor is it a technical or legal meaning, as I will now proceed to show. In Coxe's Digest, title Domicil, the following principle is laid down: “In questions on this subject, the principal point to be considered is the animus manendi; and courts are to devise such reasonable rules of evidence as may establish the fact of intention. If it sufficiently appear that the intention of removing was to make a permanent settlement, or for an indefinite time, the right of domicil is acquired by a residence of even a few days. “An inhabitant or resident is a person coming into a place with an intention to establish his domicil or permament residence, and, in consequence, actually resides. The time is not so essential as the intent, executed by making or beginning an actual establishment, though it is abandoned in a longer or shorter period.” Vattel also says, that the “domicil is the habitation fixed in any place with an intention of always staying there.” Thus we see, sir, that time is not so essential as intent—and that a man cannot be esteemed a citizen or

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