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Tox, Ralph I. Ingersoll, Kensey Johns, jun., Rob ent P. LEtchER, HENRY C. MARTINn ALE, Isaac Pierson, Robert S. Rose, John Taliaferro, John W. Taylor, Joskeh WAxce, SAMUEL F. VIN to N, Elish A Whittles Ey.*—20.
Here is my competitor himself, and a number of those who now support him, voting that the freemen of Tennessee should lose their suffrages because they were deposited in a gourd-shell, instead of a ballot-box! Arnold was of the party to which he belonged, but Lea was not. I presume, however, that he and his friends were actuated, not by party considerations, but by high principle! But where is that high principle now? How is it that men who could not conscientiously make a ballot-box out of a
gourd-shell, can now so readily make a judge of an elec
tion out of Grant, and a sheriff out of Marksbury? How is it that General Kennedy’s opening the polls an hour before the lawful time, and unlawfully appointing a judge for that purpose—the taking of votes with no sheriff present—the going from the court-house to private residences to take votes—the permitting votes purposely given to me to be taken off after the veters had been coaxed to request it, and then given to my competitor--how is it that all these outrages, and many more, are highly proper with gentlemen who would have overturned a whole election when a political friend of theirs was to gain by it, because a portion of the votes happened to be deposited in a ballot-box composed of a gourd-shell, instead of one made of poplar or oak Let the people answer. When I reached home from Colombia, in June, 1833, 1 found the State of Kentucky newly cut up into congressional districts, as well calculated to bring particular individuals into Congress, and shut others out, as if it had been done with a single view to that object. My old district had shared the fate of many others, and the noble people who had so generously sustained me, were rudely separated from their former associates, and unwillingly forced into new political connexions. I do not impute such a design to the chief manager of that operation, [Mr. HARDIN,) who is always as honest as he is respectable; but many of my too partial friends did not hesitate to say that this new and unnatural arrangement, so far as it regards the fifth district, had more reference to myself, individually, than to the feelings, wishes, or interests of the people. So it was that the county of Garrard, (the residence of Mr. Letcher,) the people of which were supposed to be almost unanimously opposed to the political views I entertained, was thrown upon the new district in which I reside, thus constructing a district, which, according to the result of the preceding election, contained a majority of 1200 votes against me. In this district, so arranged, I was a candidate but ten days before the election; and the result you have to determine. Possibly those who considered the probable effect of the new arrangement were somewhat disappointed, and I imagine that my competitor, if not his honorable friend, [Mr. HARDIN,) who sees me here, and is now attempting to effect in another manner what his districting system failed to accomplish, would prefer by some odds that the district had been left as it was before. On the first night of the election, I was about 200 votes ahead of my competitor in the district. A desperate struggle ensued on the part of his friends; and to that is undoubtedly to be attributed a large portion of the bad votes which appear on his poll. With the news that he was elected, the rumors as to the manner in which the election had been conducted at Lancaster spread into other counties. All the officers of the election were my warm political enemies; a majority of them were family connexions of my competitor; the polls had been opened
* The gentlemen whose names are printed in small capitals are now members of the House, and voted to sustain all the abuses which tended to promote Mr. Letcher's interest.
at an unusual hour; the judges had been changed after the voting had been commenced; a deputy sheriff, who was acting alternately with the high sheriff as presiding officer of the election, had been riding through the county to bring out votes for Mr. Letcher; unauthorized persons had acted as presiding officers; and when some of my friends, though in a weak minority there, had ventured to remonstrate with the deputy sheriff when presiding, they were met by the brandishing of a deadly weapon. The judges had left the place of voting and taken a vote at a private house; they had permitted a voter who had intentionally voted for me to recall the vote after it was recorded, and give it to my competitor. These facts, exaggerated by rumor, which also alleged that an immense number of minors and other unqualified persons had voted in Garrard county, created in other counties a belief that I had been defrauded out of the election, and that the polls of that county, and particularly of the town of Lancaster, were no proper evidence of the vote of the county, and ought to be materially corrected, if not altogether rejected. It was natural that my ardent friends, who had been so secure in the result of the election after Monday, should be deeply impressed with the conviction that they had been disappointed by improper means. Whether the sheriffs, when assembled to compare the polls, have power to reject or correct the poll-books, had never been well settled in Kentucky. If a poll-book should be presented by one of the sheriffs, which showed on its face that the votes recorded on it had not been taken on the days prescribed in the constitution or laws, at the place or by the regular officers designated for the purpose, but on another day, at another place, and by mere usurpers, it is not extravagant to suppose that it would be the duty of the sheriffs to reject it altogether. If for these defects united, they would possess such a power, it is reasonable to conclude they would possess it for a portion of them; and if they could reject a whole poll-book for notorious illegality, they surely might reject any part of it for the same cause. I do not maintain that the sheriffs have this power, nor do I admit that they have not. I merely say that there is nothing extravagant in supposing that they possess it, and that this was the confident belief of many of my friends in the present contest. It was known that Mr. Grant had acted as judge at Lancaster, for a portion of the first day, and his name did not appear on the poll-book as judge either to the certificate or elsewhere. It was doubted whether, after he had been appointed, and commenced acting, the assumption of the place by Wheeler afterwards, was legal, and whether all Wheeler's acts were not void, and this affected the whole poll-book, the whole being certified by him. It was known that no sheriff had been present at Lancaster, during a part of one day, as expressly required by law; and the sensation created by a knowledge of that fact was not at all lessened by a knowledge of the service on which the deputy sheriff was employed. It was also known that very many illegal votes of minors and others had been given for Mr. Letcher, and under these circumstances, it was not at all extraordinary that my friend should think the sheriffs ought to inquire into the validity of the Garrard polls. It might have been a mistaken feeling, but it was an honest one. It was one of resentment at a supposed fraud upon the right of suffrage, which ought promptly to be redressed. The mode in which redress was attempted might have been wrong, but the motive was right. It was undoubtedly this motive which induced the motion to inquire into the validity of the Garrard polls. ^: it was resentment at the failure of the motion, and at the approaching consummation of what he thought a fraudu lent election, which induced Mr. Hocker, on the failu o of the motion, to withdraw with the poll-books of Lincol
county. I shall not defend him in that step; but, know
May 31, 1834.]
has had enough of that already, as well here as in Ken-
- s ing the character of the man, I shall not censure him. He shown, and
all the forms of law trampled upon in Garrard county, and that the apparent majority for Mr. Letcher was made up of spurious votes. On the other hand, it was alleged by his friends that he was about to be tricked out of an election which had been decided in his favor by a majority of the legal votes, and that I was about to claim a seat in Congress with that majority against me. How could the question have been so well settled as by the voters themselves at that time? There was abundant time before the meeting of Congress, and their interests in this House could not have been compromitted in the least degree. After the refusal to submit the question to the people, it appears to me the insinuation that I wish to deprive them of their right of suffrage comes with a bad grace from the friends of my competitor. Why is the question here at all? Is it because I refused to let them say, by an unequivocal vote, whom a majority of them preferred as their representative? It was not my wish, or my fault, that the question was taken from them and brought here. It was not because I was unwilling to trust the people, that gentlemen have had an opportunity to exhibit their high regard for the right of suffrage on this floor. For all this they are indebted to my competitor. I was content to abide by a decision of the people; but he preferred appealing to this House. From the tribunal
sibility, and showing that those motives were not based of the people to this tribunal, I was forced by him conon any wicked intent, and that his act has wrought no trary to my will. To make you the tribunal, and occupy practical wrong. Thus far it is my duty to sustain him, your important time with such a matter, was his choice and having been in all vicissitudes my devoted and un- not mine. But as I was at first ready to submit the queswavering friend, I should not deserve to have a friend if tion to the people, and, after that was declined, proposed I did not, on this occasion, at whatever hazard or injury to submit it to a number of gentlemen, a majority of to myself, even the loss of a seat in Congress, perform whom had voted against me, I am also content that it shall that duty, and vindicate him against unmerited aspersions. be decided by the House of Representatives. As my Mr. Hocker made a motion, at the meeting of the competitor has forced me here from the tribunal I presheriffs, to go into an examination of the legality and ferred; as he has compelled me to undertake the trouble validity of the Garrard polls, or a part of them. This and incur the expense of taking numerous depositions, motion was not unprecedented in Kentucky. In 1827, and, as this affair has occupied months of my time, and when a gentleman, now a member of this House, [Mr. deprived the fifth district of representation for many Chitros, ) was a candidate in opposition to Mr. Calhoun, months, it is now but reasonable that the House should he had a majority of the votes given; but the sheriffs ex: decide it.
cluded the vote of a whole precinct for irregularity, and gave Mr. Calhoun the certificate. Both of the gentlemen started for Washington; but meeting at Louisville, they agreed to resign and submit the case again to the people. whether right or wrong, the idea that sheriffs possess
The mode in which the friends of my competitor attack the report of the majority is ingenious; but it may lead the House to a decision which is contrary to the opinions entertained by a majority of its members, or involve it in a seeming contradiction. The majority make out my ma
this power is not new, and the rumors in relation to the jority of votes over Mr. Letcher to be forty-nine, upon manner in which the election had been conducted in Gar-the basis of the governor's return, but forty-four upon rard county were well calculated to suggest a resort to the copies of the poll-books. Soppose it to be forty-four. it. Mr. Hocker's motion, however, was negatived by the It is alleged that the majority of the committee were sherifts, and then he withdrew with the poll-books of wrong in striking off fifty-four votes from Mr. Letcher's Lincoln county. It is proved, as far as such a thing can poll, and sixteen from mine, on account of the illegal be, that he took this course at his own suggestion, and manner in which they were taken; and it is moved to reupon his own responsibility, in consequence of a perfect store them. This question may be decided in the affirmaconviction that a palpable wrong to the people of the dis-tive by a majority which we will suppose to be ten yotes.
trict would be consummated, if the certificate of election were given to my competitor. The votes of the four reanaining counties were then compared, and three of the sheriffs united in giving me a certificate of election, specosying on its face that Lincoln county was not included.
I declined at that time receiving the certificate, and promptly proposed to my competitor that we should both resign our pretensions, and submit the question again to the people. This he thought proper to decline. His motives for doing so are not called in question; but after the making and the rejection of this proposition, it was not candid in his friends to charge me with attempting to deprive the people of their right of suffrage. There were assertions and imputations on both sides; it was alleged by my friends that gross partiality had been
* This, the House has since solemnly decided, by sending the --ction back to the people. So that Mr. Hocker's view of the csae
There are five votes for me on the Salvisa poll-book, which the minority say should be tranferred to Mr. Letcher; and let us suppose that a motion to that effect be carried by a majority of ten votes; but that this majority is composed of other members than those who made up the majority of the preceding question. The first vote would take thirty-eight from my majority; and the second, by transferring five from one side to the other, making a difference of ten, would give my competitor a majority of four. Now, is it not plain, that a majority of votes might thus be given to my competitor, when a majority of the members of the House believe that I have a majority, and am duly elected? Let us examine the matter a little further. Both of these questions must be decided against me to deprive me of the election. There are two hundred and forty members. Suppose that one hundred and twenty-five of them vote that the thirty-eight votes should be restored to Mr. Letcher, and
* triumphantly sustained.
one hundred and fifteen againstit; and when the question
is a fair expression on that point, and in that manner
only, which can do justice to the parties, or express the real sentiments of the House.
I give my adversaries credit for the adroitness of their
mode of warfare; but I trust the House will not suffer the
In such a case, the vote in favor of my election would be two hundred and thirty
rally, and in every case where a precinct is established,
the first, at his private residence, instead of the place prescribed by law, or by a written ballot instead of viva voce. For neglect of the voters themselves to observe the requisitions of the law regulating elections, such votes would be illegal. In addition to this defect, the law considers all these observances necessary to prove that the citizen has a right to vote, and if they be omitted, that proof is wanting. Nor is this proof of a character which can be dispensed with, because it is expressly required by law. The meaning of the law is as plain as if it had been declared in so many words, that no vote shall be considered valid, unless given “in the presence of the said judges and sheriff,” personally and publicly “viva voce.” The fact of its having been given “in the presence of said judges and sheriff, is one of the legal and indispensable evidences of its validity, and in the absence of that proof it must be considered bad, however strong may be the other evidence of the citizen's right to vote. All such votes cannot, therefore, be pronounced bad, unless this House has the power to overrule and make void the laws of Kentucky regulating elections, passed in obedience to a constitutional injunction No one denies that thirty-two votes were given for Mr. Letcher, and thirteen for me, at Lancaster, on Tuesday, the second day of the election, in the absence of the sher. iff. One of the sworn and responsible officers whom the law provides for guarding and securing the right of sus. frage, was not there. These forty-five persons, though required to vote in the presence of the judges and sheriff, gave their vote in the absence of the sheriff. Unauthorized persons were acting in that capacity, whose presence could give no validity to the proceedings, more than if there had been no person to represent him, and the judges and clerk had been proceeding by themselves. It has been denied that the presence of the sheriff is of any importance, or that he has any active agency in conducting the election. It would seem to be sufficient to prove the importance of the sheriff's presence, that the law expressly requires it. In fact, his presence is more important than that of either of the judges. He opens and closes the polls, and is the presiding officer of the election. He has by law the same power to question a vote that either of the judges bave. An oath is directed to be administered expressly to satisfy his doubts, as well as any doubts of the judges, and when the judges disagree in relation to a voter, he decides it. These facts are conclusive to show that his attendance is as important as that of a judge. The voter is required to give his vote in the presence of the judges and sheriff. The law requires all three to be present. If he may vote in the absence of the sheriff, he may also in that of a judge. If the presence of one may be dispensed with, so may that of two or of three. The entire election may be left to the clerk, and all the securities provided by law to protect the right of suffrage disregarded and trampled under foot. been advanced, that “mere usurpers” may take in the votes, and that the vote taken by them ought to be admitted, if proved by other evidence to have been given by qualified voters. If this looseness be admitted, then may any person take a poll-book and travel over the counry to every man's house, and there take down his vote a week after the election, and these votes, if proved to have been given by qualified voters, must be admitted. The time, place, manner of voting, and all the officers of the election prescribed by the constitution and laws, may be set aside and annihilated. It cannot be possible that the House will sanction a principle which would effectually break down all the safe-guards of elections, and enable men to bring poll-books here, as they sometimes do memorials, containing hundreds and thousands of names which are not to be found in the towns and counties from which they purport to come. The majority of the committee have reported, and I
Nay, the idea has!
maintain, that the votes given at Lancaster on the morning of the first day of the election, while Moses Grant acted as judge of the election, are illegal, and ought not to be counted, because Grant was not legally appointed a judge of the election; and those votes are certified by another person, as judge, who was not present when they were taken. The law and the facts of this case have already been stated by me in a printed argument, addressed to the members of the House, as follows, viz. “The election law of Kentucky provides that the sheriff, or other presiding officer, shall, on the day of every election, open the polls by 10 o'clock in the morning,” and “continue the same open until at least one hour before sunset.” “The justices of the county court shall, at their court next preceding the first Monday in August, in every year, appoint two of their own body as judges of the election then next ensuing; and also a 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 such election, appoint proper persons to act in their stead.” “The judges of the election, and clerk, before they proceed to the execution of their duty, shall take the oath prescribed by the constitution; which shall be administered by any justice of the peace. They shall attend to receiving the votes until the election is completed, and a fair statement make of the whole amount thereof.” “The county court of Garrard county appointed Isaac Marksbury and William Wheeler to act as judges of the election in August, 1833; and A. McKee to act as clerk. Marksbury became a candidate for the Legislature, and declined serving. Wheeler did not decline serving. On the morning of the first day of the election, about nine o'clock, the sheriff appointed Lewis Landrum and Moses Grant to act as judges—the latter only until Mr. Wheeler should come in—opened the poll-books, and proceeded with the election. About ten o’clock Wheeler appeared. Grant left his seat, Wheeler took it, acted through the election, and united with Landrum in certifying the whole poll, as well the votes taken in the presence of Grant as in his own.” I can scarcely hope to add any thing to the suggestions heretofore made by me on this point. Can any one believe the law intends that the sheriff shall open the polls at any time before ten o'clock that he pleases? Where does he get the power? Is it derived from the constitution or laws? There is not a syllable in either conferring such a power on him. He is but one of three whose presence the law requires at the opening of the polls. He must have a court to preside over, before he can open the polis as “presiding officer.” How is that court to be made up? The law answers, and tells us it is to be composed of two judges, appointed by the county court, to sit with the sheriff. If his court be in attend. ance, he may open the polls at any time before 10 o’clock, with their concurrence; but if they do not attend before 10 o'clock, then he shall appoint other judges, and proceed with the election. The great object is, to afford the freemen an opportunity to exercise securely their right of suffrage. As the best means of effecting this object, it is provided that the management of the election shall be vested, not in the hands of the sheriff, or persons appointed by him, but in those of persons designated for that purpose by the county court. But lest the opportunity to vote shall be lost to the people, by the failure of those persons to attend, the sheriff is commanded not to wait for them beyond 10 o'clock, but to appoint other judges himself, and proceed with the election. To my mind, this is the clear and only meaning of the law. If the sheriff may, in the absence of the regular judges, open the polls before 10 o'clock in the morning, he has a
right to open them at any hour before ten. For party or personal purposes, he may open them at daylight or sunrise, and the regular judges and clerk not being in attendance at so unusual an hour, may put up the partisans or relatives of his own favorite candidate, and proceed with the election. Can it be conceived that such power is vested in the sheriff Can he thus take the whole election in his own hands, in defiance of the regular judges appointed by the county court? Such, surely, cannot have been the intention of the law. The high sheriff of Garrard, in appointing Mr. Grant, and opening the polls at 9 o'clock, must have known that he was acting illegally. Judge Ousley proves that when General Kennedy was a candidate himself, a few years ago, he protested against the polls being opened before 10 o'clock, and they were not opened. The conditions of Grant's appointment show that so far from supposing Mr. Wheeler had failed to attend, his attendance was confidently expected both by the sheriff and Mr. Grant. Mr. Grant would consent to serve only until Wheeler should arrive; and upon that condition the sheriff appointed him. The law knows no such condition. On the contrary, it gives the sheriff power to appoint a judge only when the regular judge fails to attend; and especially provides that the judges so appointed “shall attend to receiving the votes until the election is completed, and a fair statement make of the whole amount thereof.” Grant was appointed on the express condition that he should not comply with the law; but should give up his seat and office during the election, and no statement make of any part thereof. He did so give up his seat, and did not certify to the poll-book, or any part thereof; nor does it appear by that book, or official document, that he ever served as judge of the election at all! The votes taken while he was acting as judge, are, like all the rest of the book, certified by Wheeler, who was not present when they were taken, and had no official knowledge that the men had ever voted. He certified to that which he did not officially know, and to that extent his official certificate is void, being no more than waste paper. Had he been absent during the whole election, could he have certified to the truth of the poll-book? If not to the whole, how could he do it to any part—to a hundred votes taken in his absence, more than twelve hundred? Nothing is more clear, it appears to me, than that Grant's appointment was void, and Wheeler's certificate illegal. The votes taken by Grant were not taken in the presence of the judges and sheriff, as the law requires, nor are they certified by the persons in whose presence they were taken. All the arguments urged upon the preceding point apply with equal force to this, and it is unnecessary to repeat them. I cannot, however, quit this point without remarking how completely “circumstances alter cases” with some gentlemen, in relation to the power of sheriffs in Kentucky. They are wonderfully startled at the idea of conceding to the assembled sheriffs the power to inquire into the validity of the poll-books or the legality of votes; but they do not hesitate to concede powers which would enable single sheriffs to manufacture poll-books, by setting up their creatures as judges and clerks, and opening the polls at unusual hours, when the well-meaning part of the community are yet at their homes. Such a pretension I consider infinitely more dangerous and reprehensible than Mr. Hocker's proposition. It is one which, I am sure, the law never intended to concede; and which the Legislature of Kentucky will find it absolutely necessary to take away, should it be conceded by this House. of the students of Centre College, at Danville, in Mer. cer county, fourteen voted at the congressional election for Mr. Letcher, and one for me. Several of these young gentlemen were from other States, and the remainder, with perhaps one exception, from other counties of Ken
tucky. The majority of the Committee of Elections decided that eight of those votes given for Mr. Letcher, and one given to me, are bad, for want of the residence required by the constitution and laws. The courts in Kentucky have decided that the mere abiding in or out of the State for many years, without an intention to change the residence, does not affect the civil or political rights of any person. In addition to opinions expressed by the General Court, and Court of Appeals, of the State, we have that of the Federal Court, which, in one case, (that of Henry Banks,) decided that residence in the State of about fourteen years, I believe, did not make him a citizen. When a young man goes from one State to another, sor the purpose of obtaining an education, does it require any evidence to prove that he went for the purpose of making a settlement? And if he do not go for the purpose of making a settlement, he does not lose his rights as a citizen in the place whence he comes, nor does he acquire those rights in the place where he goes. Has it ever been conceived that young men who go from the South or the West to Philadelphia, New Haven, or Cambridge, for the purpose of acquiring knowledge, forfeit their rights in Georgia, Virginia, or Kentucky, and become citizens of Pennsylvania, Connecticut, or Massachusetts? Perhaps few would go in search of knowledge if the consequences were to be expatriation. The same principle applies to those coming into the State as to those going out. And the same principle, on a more limited scale, applies to those passing from one county of the State into another, for the same purpose. A citizen cannot possess the right of suffrage in two counties of Kentucky at the same time, any more than in two States. To decide that he has it in one, is to decide that he has it not in another. But as to the right of students to vote at the places of their former residence, and not at the college or other literary institution where they may be temporarily located, the committee have decided it." The majority and minority both affirm that principle, in two several cases. Carey A. Wiley was a student at this identical college, but happening to be at his mother's, in Garrard county,
at the time of the election, he voted there, returning to .
the college shortly afterwards—and his vote was pronounced good. In this case it was proved that he was twenty-eight years old, had sold his property in Garrard, had been at the college some years, was qualifying himself for the ministry, and had no intention to return to Garrard to reside permanently. A stronger case could not, probably, be found among the students at that college; and, had he been in Danville, his right to vote there would have been as complete as that of any of the rest. If he had a right to vote in Garrard county, he could not have had a right to vote in Mercer; and if he had no right to vote in Mercer, then the other students, similarly situated, had none. But he voted for Mr. Letcher in Garrard, and the entire committee pronounce his vote good there, which is as much as to say that it would have been bad if given in Mercer. The other students, under similar circumstances, not happening to be absent from the college, voted for Mr. Letcher in Mercer, and the minority declare their votes to be good! The principles affirmed by them, in these two decisions, are in direct contradiction to each other; and the only coincidence I can perceive is, that they all voted for Mr. Letcher. It cannot be intended to say that the essence of a student’s vote, whether given at college or at home, consists in his having voted for Mr. Letcher; yet such is the inference which the opinions expressed by the minority would seem to authorize! The other case in which the majority and minority have both decided the same principle is that of B. W. Higbee, who was a student at the law school in Lexington,
and voted in Jessamine county, where his father resides.