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resident of a county or state if he goes to either with the intent of abandoning it after having accomplished a particular object; and has such intent at the time he claims a right to vote. But, sir, one of my honorable colleagues [Mr. HARDIN) has asserted that this case should be decided according to the constitution and law of Kentucky, and the expositions, judicial and legislative, there given to both. Sir, I agree to this, and will refer my colleague to the case of Easton vs. Rucker, decided by the appellate court in that State, where the following language is held: “A citizen of Kentucky may have a temporary resi. dence out of the State, and, if that be the case, it does not follow that the federal court has jurisdiction of his controversy with a resident citizen of the State; for such temporary residence will not divest him of his character, or his rights, as a citizen of the State. “The term non-resident has frequently occurred in the decisions of the court of appeals of Kentucky, on questions touching the jurisdiction of the general court; and it has always been considered that the meaning was, one who had his domicil out of the State, and not one who had a simple habitation in Kentucky.” I would now inquire of my colleague if a man who is not a citizen of Kentucky, has a right to vote in that State? To this he must respond in the negative. But in the passage just quoted, the court say, “a citizen of Kentucky may have a temporary residence out of the State,” and yet not lose his rights or character as a citizen. If, then, he does not lose his rights and character as a citizen by a temporary non-residence, say of two years, how is it possible a man can acquire those rights by a corresponding mere residence of two years, when he takes up a temporary habitation in the State without the view of remaining, or making a home there? But I will refer the honorable gentleman to his own opinions, as found in the case of Williams and Mason, before cited. From the report, drawn up by my colleague, I make the fol. lowing extract: “Stephen Ellison, alleged to have removed to Texas, was gone there five years, but a change of residence not proven to the satisfaction of a majority of the committee.” Now, if Ellison was held a good voter, although absent five years, because it was not satisfactorily proved that he had intended to change his residence, how is it possible that the votes of the Danville students can be adjudged good, when it is positively proved that they went to Danville for the sole purpose of obtaining a theological education, and did not intend to reunain there? I have been insormed of another case, where the principle for which I contend was distinctly asserted and recognised. Samuel H. Woodson, Esq. was returned a member of the Legislature of Kentucky, from Jessamine county. His right to the seat was contested on the ground that he had not resided in the county of Jessamine for the whole year next before the election, but had resided part of the time in Fayette county. The lower House of the Legislature, considering Jessamine to be the place of his actual residence, very properly decided that he was entitled to a seat; yet if they had settled it according to the principles now advanced on this floor, he would have lost his seat. After these references to the constitution and laws of Kentucky, and the decisions and expositions, legislative and judicial, of the State, how can it be seriously contended, Mr. Speaker, that the students of theology at Danville, who had gone there from other counties than Mercer, and other States than Kentucky, are qualified voters? Let me inquire of honorable gentlemen, if one of those students had returned to his home, or to that of his father or mother, and had claimed the right to vote there, if he would not have a clear right to exercise that privilege? Could, or would, a judge of election dare refuse him on the ground that he had been absent in the
pursuit of a collegiate or clerical education? Certainly not, sir. It would be his proper place of voting. Yet a man cannot have a right to vote in two counties at the same time. He cannot place himself in such a position as to have the option of selecting the county in which he will exercise the right of suffrage. I may be told that these students performed militia duty--that they paid town tax in Danville. This may be so, sir. But it does not, ipso facto, make them citizens of Mercer, or prove they are such. These are duties to which men are often unrighteously and illegally subjected, and it may have been so in the instances alluded to. It does not follow, sir, that, because a man is subjected to some of the duties of a citizen, he therefore has the rights of a voter. Because, if that were the case, every man liable to jury service would be entitled to vote, and we all know that the very moment a man moves into Kentucky, he can be called on to serve on a jury—ay, sir, and be compelled to muster, and list his property for taxation. ... It is worthy of remark here, Mr. Speaker, that one of those students left college during the election, and went to the county in which his father resided, and voted there for Mr. Letcher. The minority hold this to be a good vote. Now, sir, how can he be entitled to vote in the county where his father lived, and at Danville also? I confess I cannot understand it, and will leave it to the ingenuity of other gentlemen to determine. I therefore hold, sir, that the votes given by those students were very properly rejected by the majority of the committee. . There may be some inconvenience in adhering to the law in this instance, but there is much more in abandoning it; for I can very readily perceive that if students at colleges are allowed to vote in counties where they may go or be sent for education, you may place, and will sometimes place, the rights and interests and voice of a majority of the county entirely under their direction and control. . . . I have now arrived, Mr. Speaker, at points in this case which, I confess, I approach with much reluctance and great delicacy. I would have preferred to avoid a decision of them. But inasmuch as one of the minority of the committee, by the amendments he has proposed to the first resolution reported by the committee, has placed this House in such a position that a decision thereon seems inevitable, I must claim the further indulgence of the House, while I proceed to show the reasons for the vote I am compelled to give. The question now to be discuss: ed is, Shall the votes given at Lancaster, in Garrard county, on the first day of the election, before the arrival of the judge appointed by the county court, and also hose given on the second day, in the absence of the sheriff, be rejected by this House? Sir, it is not necessary for me to say whether I would have contested an election, on this ground. It is useless for me to repeat the wish that Mr. Letcher had consented to refer the case again to the People, when it was proposed by Mr. Moore. It is enough for me that this case must now be decided according to the constitution and the laws. If the constitution and the laws are wrong, let them be changed. But, so long as they exist as they are, let them be enforced. Nor let there be a hue and cry raised that the voice of a majority of the people is about to be defeated by this House. There may be no foundation for such useless clamor. . A majority of the committee (a committee distinguished for its into illgence and probity) have informed us that Mr. Moore has received a sufficient number of votes to elect him, without rejecting the votes now under consideration. In coin. mon courtesy, we should confide in the correctness of their report, until it is shown to be erroneous. It may not, therefore, violate the rights of Mr. Letcher, or the higher rights of the people, to settle this question at this time. It may subserve a valuable purpose hereafter. I shall, therefore, without further delay, proceed to discuss this point; and, first, as to the votes given on the second
day, in the absence of the sheriff. That part of our law point of time for their attendance must be assumed. Shall which refers more immediately to this point, reads thus: it be after midnight of the previous day, or at daybreak,
“The persons entitled to suffrage shall, in the presence of said judges and sheriff, vote personally, and publicly, tira ruce.” Upon the authority of this clause of the law, the majority of the committee rejected thirty-two votes given to Mr. Letcher, and thirteen given to Mr. Moore. They did so on the ground that the law required the electors to vote in the presence of the sheriff. They considered that the requisitions of the law could not be dispensed with. Although, Mr. Speaker, strictly viewed, it may have been the duty of the judges to have abstained from receiving votes until the arrival of a deputy sheriff to supply the place of the sheriff, who was necessarily absent on account of the illness of his wife, yet, inasmuch as this omission was the result of a casualty unforeseen, and over which human agency could have no control, I am inclined to vote against the majority of the committee in this particular. This proceeds from an unfeigned desire to effectuate the popular will, whenever it can be done consistently with the law and the constitution. But, in relation to the votes given on the first day, before ten o’clock, in the absence of the judge appointed by the county court, I entertain a very different opinion. What, sir, is the language of the law on this subject? It is this: “The justices of the county court shall, at their court next preceding the first Montlay in August in every year, appoint two of their own body as judges of the election then next ensuing, and also a proper person to act as clerk.” “And in case the county court shall fail to make such appointments, or the persons appointed, or any of them, fail to attend, the sheriff shall, immediately preceding every election, appoint proper persons to act in their stead.” “The sheriff, or other presiding officer shall, on the day of every election, open the polls by ten o’clock in the morning.” “The judges of the election and clerk, before they proceed to the execution of their duty, shall take the oath prescribed by the constitution. They shall attend to the receiving the votes until the election is completed, and a fair statement make of the whole amount thereof.” In pursuance of this law, the county court of Garrard county appointed Isaac Marksbury and William Wheeler to act as judges of the election. Marksbury became a £andidate for the Legislature, and declined serving as a judge of the election. But did Wheeler decline serving? or, in the words of the law, did he “fail to attend?” For it will be remembered that it is only in case of a “failure to attend,” that the sheriff has a right to appoint a substitute judge. The contingency must happen before the power intrusted to the sheriff could be exerted. The question arises, When can this contingency be said to happen? I answer, at ten o’clock, and not before. I maintain that, if the judges attend by ten o'clock, they have not failed to attend to hold the election as required by the provisions of the statute just cited. And, as a ne
cessary consequence of this position, I maintain further
that, if the appointees of the county court do attend “by
or sunrise, or six, seven, or eight o'clock of the first morning of the election, or shall it be at ten o’clock? Can it be contended, sir, that a sheriff shall have the dangerous power of proceeding to the court-house at sunrise or sooner—-that he shall then decide that the appointees of the county court have “failed to attend,” and, in violation of all law, and reason, and justice, foist into authority appointees of his own, in contempt and disregard of the previous appointments of the county court? Shall he have the power thus to create a vacancy that he may fill it? Shall the judges appointed by the county court be compelled “to camp upon the ground” to avoid a surprise and ouster by the sheriff? Shall they be compelled, at the “crowing of the cock,” to abandon their chambers, speed with precipitation to the court-house, take their seats, and there remain to prevent the sheriff from declaring that they have failed to attend? Or shall they have the right to attend at the usual time, and in the usual manner, to conduct a legal and regular election? Shall the sheriff have the dangerous right of declaring a vacancy at any hour of the morning, and to fill it with the connexions, partisans, or instruments of himself, or a favorite candidate? Or shall he be compelled to wait until ten o'clock to see whether or not the legitimate judges have failed to attend? Sir, the latter course is obviously the proper one. There is no danger, and can be none, in adopting it. It will afford ample time to conduct and complete a full and fair election. But, in the former course, I can see serious and numerous evils. It is pregnant with flagrant and crying injustice. It can be prostituted to subserve the vilest purposes. It will open a field where can be sown, with broad cast, seeds of the rankest corruption. Let me not be told, sir, that this mode of reasoning is founded upon the presumption that some sheriffs are dishonest. I do not mean to fulminate such a charge against them. So far as they are known to me, they are, in the general, men of integrity and honor. But I do mean to say, that—— which I have sorely felt—sheriffs have sometimes betted large sums on the result of elections; sufficient, for aught I know, to stimulate their passions, poison their judgment, and warp their sense of duty. Now, sir, if in such a case, the sheriff should exercise the monstrous power with which it is contended the law has invested him, what will become of the boasted purity of elections, and the sovereign voice of the people? But, Mr. Speaker, suppose that honorable gentlemen are correct in the proposition that the sheriff had a legal right to appoint Grant before ten o’clock—then I contend that he was a judge for the whole election, and Wheeler had no right to take his seat as judge at ten o'clock, and thereby eject Grant. If Grant was a legal judge, Wheeler was not; and if the latter was, the former was not. Gentlemen may take either horn of the dilemma they please; either the votes taken before Grant were illegally taken, or those taken before Wheeler were. Why? Because the law does not contemplate the appointment of two sets of judges-—the one appointed by the county court and the other by the sheriff, to act alternately in the progress of the election. The law says, the judges “shall attend to the receiving the votes until the election is completed, and a fair statement make of the whole amount thereof.” Did grant do this, or did Wheeler do it? Neither did, sir. Yet the law is imperative that it shall be done. How are the votes certified, sir? I)oes Grant certify to the correctness of the votes taken before him? No, sir; Wheeler does it. He undertakes to certify, not only to the votes, taken before himself, but to those taken before Grant also. It can be hardly necessary to say, sir, that the proceedings of the sheriff, in making this appointment, were a palpable departure from the necessary and substantial forms and requisitions of the law.
It is positively proved that he was appointed to act until Wheeler arrived, and no longer. And when Wheeler did arrive, he took his seat as a judge; not by virtue of an appointment by the sheriff, but by virtue of his appointment by the county court. Sir, we are not left in the dark as to the sheriff’s understanding of this law. It is proved by Judge Boyle that this sheriff was once a candidate for the Legislature in opposition to him, (Boyle,) and that the former successfully protested against the opening of the polls before ten o’clock. We also have the understanding of several of the citizens on this subject; one, or perhaps more, of whom advised the sheriff not to open the polls before Wheeler arrived, and informed him that Wheeler would certainly arrive in time. Yet the sheriff disregarded all this, and opened the polls, although Wheeler did arrive in time, and commenced the duties assigned him by the county court. And now, Mr. Speaker, I must be allowed to dissent from an opinion advanced by two of my colleagues, [Mr. HAR11N and Mr. MAnshALL.] They both stated, in substance, that the right to vote was derived from the constitution of Kentucky-–that the act of the Legislature was passed to facilitate that right, and not to restrict it--that the Legislature could not, therefore, restrict the right to vote to ten o'clock of Monday, inasmuch as the constitution had allowed the whole day for carrying on the election. Have my honorable colleagues overlooked the fact that the right to vote for members of this House is derived, not from the constitution of Kentucky, but from the constitution of the United States? And that that instrument gives to the Legislature, and not to the constitution, or those who framed it, the right to prescribe the time, place, and manner of voting. The fourth section of the first article of the federal constitution says: “ The times, places, and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Législature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing Senators.” Thus we see that the position of the gentlemen is expressly repudiated by the constitution itself, and will, I am sensible, upon a moment’s reflection, be abandoned by themselves as wholly untenable. I therefore maintain that the Legislature of Kentucky have a right, under authority from the federal constitution, to restrict the time of voting for members of the lower House of Congress, within any hours of any day, so long as the Congress shall permit it; that it is no violation of the constitution of Kentucky so to do; and that if this power be abused, the only corrective is to be found in the national Legislature. In attacking the report of a majority of the committee, my colleague [Mr. MARsh ALL] undertakes to define an election: he says that an election is the result of the choice of a majority of qualified voters. Sir, this is an incorrect definition of an election. I take it to be the “will of a majority of qualified voters, expressed according to law.” If it be not expressed “according to law,” it is no election. For example, if votes are given on a day, at a place, and in a manner not authorized by law, it is no election. And no matter how honestly the public will may be expressed, if it is not done in conformity with the substantial and necessary requirements of the law, it cannot be carried into effect without a violation of the law; and although the honorable gentleman from Pennsylvania [Mr. BINNEx] is correct in stating that the time, place, and manner of holding elections constitute no part of the qualification of the electors, yet, if the gentleman will recur to the law, he will find that it does constitute a part of the qualification of the votes, and that it is as necessary that there should be an officer qualified to receive a vote, as it is that there should be an
!, Mr. Speaker, it is not even pro tended that Grant was appointed to act as a judge during the whole election.
elector qualified to give one. Sir, gentlemen have at
[May 28, 1834.
tempted to expose the fallacy of these positions by stating extreme cases. I do not recollect them all, but one put by my colleague, [Mr. HARDIN) just occurs to me. He inquires, if a judgment of a court would be yoid if pronounced by the judge in the casual absence of the sheriff from the court-house. Assuredly it would not. But let me state a more apposite case. Would not such judgment be void if pronounced by a judge not appointed and commissioned as required by law? Certainly it would. But, Mr. Speaker, I will detain the House no longer. It was painful to me to have troubled it at all. I should not have done so, if it could have been safely avoided. I did not wish either my motives, my views, or my votes to be misconstrued. I was sensible that the welkin would be made to ring with denunciations of those who think and vote as I shall on these questions. We have been told already that the public will has been violated--that an effort was made to stifie the public voice--that we were adhering to forms, to shadows, and not to substance. Sir, no man entertains a more profound veneration for the sacred right of election than myself. No man would bow sooner than I would to the will of the people. I would ever, defer to their suffrages, but then they must be genuine, they must not be spurious. I will ever carry into effect the fiat of popular will, whenever it is expressed according to the constitution and laws of my country. More than this I am-satisfied an enlightened people will not require me to do. They have sufficient intelligence to know that those who framed our constitution and laws, designed them for the protection and security of our liberties. That it is necessary to adhere to them—that these apparent restrictions on the enjoyment of the elective franchise were thrown around it as muniments for its protection. And I have no doubt they will believe as I do, that the invaluable privilege is more endangered by an abandonment and disregard of those substantial forms and requirements which the constitution and the laws have imposed, than by a proper and steady adherence to them. Under these impressions, Mr. Speaker, I shall vote for Mr. Moore to take his seat, unless, in the course of the discussion, I shall be satisfied he is not entitled to it. When Mr. Pope had concluded, Mr. DAVIS, of Kentucky, rose and said: Mr. Speaker: I have been a long time in a bad state of health; I am now feeble, and my voice is weak.- I had intended to give a silent vote; but allusion has been so often made, in the progress of this debate, to the laws of Kentucky and her members here, that, as one belonging to her delegation, I feel it an indispensable duty devolving on me, to submit a few remarks. I am not in the habit of playing the orator, and least of all at this time; and what I intend to say will be more in the character of an explanation than a speech. So much excitement has been produced in the State of Kentucky, about this election, that it may be thought by some the feelings of the people had been communicated to the members of the State sitting here, and that they would act more from the impulse of feeling than the inipartial dictates of a cool and deliberate judgment. To quiet these unjust suspicions, if any such should be entertained, is the leading motive which induces me to rise and give the reasons for the vote which I am now about to give; and what I say will be more for my own vindication than to convince the members of this House. Mr. Speaker, many gentlemen who have given their views at large upon the subject, occupy, indeed, a narrow. ground; they seem to think that this contest is a question alone between Mr. Moore and Mr. Letcher, and that they are the only persons interested in the matter. But I think the great questions are the rights of the people of the fifth congressional district of Kentucky. What is their will, and who have they said shall represent then, ; They are the individuals more vitally interested, and to
them should our views be directed, as the polar-star to
voters of the district? But it is now contended that this
The gentleman's speech is for strict construction, and
Gist and myself, for the House of Representatives. It also happened that Gist contested the election of a competitor running on the other ticket; the two contests were going on in the Legislature of Kentucky at the same time, and on the same votes, and the committee of the House of Representatives decided that the vote of the same James Yocum, the dumb man, was good and legally taken. I do not make this statement as evidence to the House, as I have not the report itself to offer; I do it for myself, such being my recollection of the facts. The report which the gentleman refers to, when examined, shows that the committee were partly influenced under a belief that Yocum had been overreached. The fact is, that Yocum con
his report for liberal construction; and which shall we tinued to vote in ...F. county, at elections, until
take for our guide? the printed sentiment, or the verbal
I have no doubt, and which must be the best.
ment are found to be, on subsequent reflection, flimsy,
false, and wholly untenable. I beg no boon—let the gen
- I must contend that it is fair according to the laws of debate, when my adversary as
sumes two positions, inconsistent, and who ly at war with
tleman be not surprised.
each other, I have the election which ground to assume.
I, therefore, take the printed report, and shall hold him to the choice: If, then, according to every legal principle
and the gentleman's own admission, we give a fair and
liberal construction to the constitution and election laws of Kentucky, the whole of his fine-spun and labored argument must fall to the ground; the foundation being
gone, the whole superstructure must tumble into ruins,
leaving only the rights of the deaf and dumb protected Shall it be contended that this liberal principle can only apply to the person of the voter, and Certainly
from the wreck.
not to the forms of holding an election? not.
If the rule be #. in the one case, a fortiori will it be in the other; and more particularly when so many duties of the ministerial officers are to be performed merely directory in their character, such as advertising one month previously to the time and place, crying the polls in the court-house yard, and many others, which, according to the arguments of gentlemen, must he strictly complied with in every particular, or the election will be void. About the deaf and dumb I perfectly agree with the committee. If they had been as correct in other views we should not have so widely differed. Yes, I say, I heartily agree with them, as to the legality of the votes of this unfortunate class of our citizens, and believe the committee will be sustained by this House, and the good sense of the nation. But, to my surprise, my worthy colleague [Mr. Popr] contends against the legality of the votes of those unfortunate individuals. I am glad to find that he is the only member in this House who has contended for such a doctrine; he stands alone, and I think I am an overmatch for one competitor, when backed by so many gentlemen who act with him on the other questions. He says that he has a high authority, a decision made in the Senate of Kentucky, in the case of Williams and Mason. I am well acquainted with that case; it was a contest between individuals of Montgomery county, the place of my residence. I was also a candidate, at the same time, ruming on the same ticket with Williams, he for the Senate, and Mr.
the poor fellow died of cholera, and his right to vote, and some of his brothers, also dumb, was never doubted or questioned by any body in our county. But the gentleman relies upon the case which he has referred to, and If the decision has been given as he contends, I should suppose the decision in the case of Gist and his competitor would be of equal authority, and the known practice and understanding of the citizens of Kentucky upon the right of suffrage, would destroy his precedent; but, in the constitutional point of view, he has clearly not done justice to the subject. What are the qualifications of voters as declared by the constitution? “Art. 2. Sec. 8. 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.” Now, clearly, according to this clause, a dumb man, having these requisites, is a legal voter, and has the right to vote. Now, can it be supposed that the right is required to be exercised in an impossible manner, or not at all. This would be an absurdity in terms, an outrage to the common understanding of mankind, the justice of the case, and defeat the intention of the very framers of the constitution, who evidently only intended by that clause to change the mode of the ballot or ticket system, which, at the time of the adoption of the constitution, was practised by many of the States. Nothing is seen in the constitution showing any intention to exclude the deaf and dumb. Those in convention would never have sanctioned a doctrine calculated to cut of from the right of suffrage, an unfortunate class of our fellow-citizens, who, at all times, have been considered competent witnesses in a court of justice. But the gentleman says a dumb man cannot be a witness. I deny such to be the law. Not a witness! he has no authority in the books for the assertion. Suppose a murder had been committed in the presence of one of this description, must the offender go unpunished, because the person present could not speak, although intelligent, and, if you please, had received an education at the Danville college? [Here Mr. Pope explained that he said a dumb man could not be sworn.] Cannot be sworn! (said Mr. D.) What, does it require a man to speak to take an oath? No, sir; the clerk or other officer administers the oath and speaks. It is only necessary that the person taking the oath should understand the nature and obligations of the oath. Cannot be sworn! says the gentleman. Then he cannot be a witness. No man can be a witness without the oath requir– ed by the law, which makes no exception. The Hindoo can be a witness; if he cannot speak our language, he is sworn, and an interpreter is sworn; and such would be the case with the dumb, if they were uneducated anci could not convey their ideas to the jury by writing. My colleague [Mr. ALLAN] now tells me that a man was co odemned and executed last summer on the evidence of a
dumb woman. The right of the dumb to vote has be era