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authorize the importation of distilled liquors in casks of a less size than is now allowed by law; also, to permit spirits to be put into smaller casks for the purposes of reshipment; the law at present being to exclude spirits exported in casks of a small size from the benefit of cus. tom-house debenture, &c. Mr. S. said that the Committee on Commerce looked upon the proposition in a favorable light, and he was now instructed to move that the memorials be laid on the table, it being their intention to make inquiry into the practicability of the measure during the recess, with a view to the action of Congress on the subject next session. The memorials were laid on the table and ordered to be printed. THE POLISH EXILES. The bill from the Senate granting a township of land to 235 emigrant Poles, having been amended by the House, was returned by the Senate with their non-concurrence in the amendment. [The amendment provides that the land titles shall be granted after ten years' settlement thereon, upon payment of the minimum price.] Mr. CLAY, of Alabama, said he must move that the House do adhere to its amendment, and went into an explanation to show that the bill, as it came from the Senate, was a departure from the constitution, being a donation, for which there was not any precedent that he was aware of to authorize their making, of the public domains. One donation of the public lands had been given by Congress to certain emigrants from France, but that grant had some public ground to recommend it; those persons being required to plant the vine and the olive. IIe could not agree in opinion with those who thought that Congress had the power to grant land to these or any other foreigners, which they could not do to their own citizens, unless where commensurate benefits, facilitating sales thereof, &c., would be accomplished by it. The amendment proposed by the House gave to these individuals advantages which were not given to the pcople of the United States, namely: if they went on the lands, after ten years they would only be called on to pay therefor the lowest price, viz: $1 25 per acre; and this was sufficient, in his estimation, for Congress to grant. Mr. BARRINGER concurred generally in the views of the member from Alabama, but suggested to him to vary lais motion. Mr. CAMBRELENG held that Congress had the pow. er to make grants of the public domain, with a view to their actual settlement; and said he did not believe the people of the United States generally would refuse their assent to the grant for men circumstanced as these Poles were known to be: men who had been bravely fighting the battles of liberty in the old world, and in resist. ance to the march of despotism. He considered this an offering in the cause of liberty, to which it was the duty of the IIouse to respond. Mr. J. Q. ADAMS expressed his hope that this nation would not act on a niggardly principle towards these brave but unfortunate men. He did think that we were imposing too many conditions with the grant. Mr. BURGES would, in reply to the constitutional doubts of the member from Alabama, inquire, from every son of freedom throughout the land, if the public domain could be better disposed of than it was by this grant, given as encouragement to those who had so bravely battled in its sacred cause? The eyes of the werld, he said, were upon them; and no man in the United States, no free man, would or ought to say it was unconstitution. al to pass this bill. Mr. HARDIN hoped the amendment proposed by the member from Alabama would prevail, and maintained that if the bill was passed in the shape now reported from
The Polish Exiles--The Potomac Bridge.
[June 30, 1834.
the Senate, it would be impossible for Congress hereafter to draw the line, and refuse similar grants to the Irish, the Dutch, the German, or other emigrants who came to this country, who were all equally suffering, or had suffered in the cause of liberty at home. All were, he thought, equally struggling for freedom... He could not see what particular ground upon which this was to be maintained. If it was that aid had been offered by the Polish nation to this country in its revolutionary struggle, then so did the people of the other foreign countries, whom he had named, assist. Ile would rather extend the time for the payment 100 years than establish any such precedent as a donation under such circumstances. Mr. CAIRR, in order to close the discussion, which seemed to be interminable, moved to lay the bill on the table, but withdrew the motion at the request of Mr. CLAY, who wished to have the question taken upon insisting or adhering to the amendment made by the House. Mr. PINCKNEY, however, renewed the motion to lay the bill on the table; which motion being negatived: Yeas 48, nays 107– Mr. CLAY rose and insisted that, by the act of cession (which he cited) from the several States to the United States of these public lands, Congress was not authorized to grant away or dispose of them, “other than for the benefit of the people of the United States, &c. and for no other purposes whatsoever.” It was on this act of cession, he said, that he based his opinion that Congress was incompetent to make this donation. He would concede that, on the score of commiseration, these exiles were entitled to assistance. But why, even so, should not similar assistance be afforded to our own poor, many of whom would be rejoiced to get the right of entry on similar conditions as were proffered to them, even on the refuse lands?, The amendment, he contended; would entitle and cnable these men, after enjoying all the benefits of a grant, to purchase the land, with the avails arising from its produce when cultivated. Mr. McKIM having, with a view to arrest the debate, moved the previous question, it was seconded, and the main question having been ordered and taken, . The House insisted upon its amendment (requiring the minimum price for the land) to the bill: Yeas 82, nays 68.
TIME POTOMAC 13 IRIDGE.
The bill making an appropriation for the construction of the Potomac bridge, and repealing all former acts in relation thereto, having been returned from the Senate, with some amendments,
Mr. MEIRCER moved that the House disagree to so much of the amendment of the Senate as went to strike out the second section of the bill; which was agreed to.
After which, Mr. MERCEIR moved an amendinent, in substance, to provide that, instead of the Secretary of the Treasury being authorized to pay Mr. Dibble, who had, in the belief that he had made a contract with and at the suggestion of the President, laid in materials, to a large amount, for the construction of a stone bridge, for his expenses and liabilitics, &c., that the Secretary, should ascertain all the reasonable expenses incurred by him for the construction of the said bridge, and report the same to Congress next session. *
The amendment having been debated at length by Mr. FILLMonk, Mr. MERCER, Mr. Whittlesey of Ohio, Mr. MANN of New York, Mr. Peyton, Mr. St EwART, Mr. HARPE it of Pennsylvania, Mr. Citi NN, and Mr. Chaxioms,
Mr. WARDWELL moved the previous question; which was seconded by the House: Ayes 78. The main question, “Shall the House concur in the amendments of the Senate?” was taken, and negatived: Yeas, 46, nays 87.
[There was asterwards a conference and compromise on this disagreement.]
Mar, 1834.] Post Office—Kentucky Contested Election. [H. of R.
The following gentlemen were announced to compose the committee to sit in the recess to investigate the af. fairs of the Post Office: Messrs. Cox Non, Polk, Whitrlesey, H. Everett, BEAR losler, WATMough, and Hawes. Mr. POLK said he perceived, from the reading of the Journal this morning, that he was placed as a member of the select committee appointed to sit during the recess of Congress, to examine into the condition of the General Post Office. Mr. P. said he had never shrunk from the performance of any duty assigned to him, since he had been a member of the House. It was well known to the House that he had, during the present session, been a member of a most laborious committee, the duties of which he had attempted to perform. He had been at all times willing to give his whole time and attention, whilst Congress was in session, to the business of the House. This committee, however, were to sit at Washington during the recess. The state of his private affairs, he said, would render it very inconvenient for him to be at Wash. ington earlier than the meeting of the next session of Congress. He must therefore respectfully ask the favor of the House to excuse him from serving as a member of this committee. Mr. Polk was excused, and Mr. StopDERT appointed in his place upon the committee. The bills remitting the duties on bells presented to the Roman Catholic church at St. Louis, Missouri, having been called up by Mr. ASHLEY, occasioned some de. bate on the constitutional question of appropriating for the establishment of religion; but the bill was at length passed, 66 to 58. The House receded from its disagreement to the Senate's amendments to the bill to regulate trade and inter. course with the Indian tribes.
Mr. ASHLEY endeavored to have a reconsideration of the vote laying on the table the bill to confirm certain land claims in Missouri, but failing in that effort, he moved a resolution (requiring the report of the commissioners who passed upon the claims to be submitted to the Secretary of the Treasury; which was agreed to. On motion of Mr. SUTHERLAND, the House concur. red in the Senate's amendment to the light-house bill. Mr. MERCER, from the committee of conference on the subject of the bridge bill, made a report; which was agreed to. The resolution to make the allowance of $100 as an additional compensation to the chaplain of the House, was agreed to. Mr. HIESTER moved a resolution, requiring the Clerk of the House to compile and report tabular statements in detail on the subject of canals and railroads, completed or in progress, in the United States; but it was rejected. The House being without a quorum, A call of the House was ordered, when 88 members answered to their names; and other members appearing, the call was suspended. " The Senate's amendment to the bill to pay for property lost and destroyed in the late war on the frontiers, striking out all but the allowances for horses lost in Illinois, was, on motion of Mr. DUNCAN, agreed to. He accompanied his motion with remarks on the merit of the suf. ferers. On motion of Mr. CHINN, the House disagreed to the Senate's amendments to the bill to complete the repairs of Pennsylvania avenue. Mr. W. COST JOHNSON opposed the disagreement, and moved a call, but consented to withdraw the motion. After some business of minor importance, The usual message was sent to the Senate and President, informing them that the House was ready to adjourn; and both Houses adjourned at about 7 o'clock.
CONTAINING SPEECHES WHICH WERE EITHER NoT RECEIVED IN TIME TO BE INSERTED, OR WERE ACCIDENTALLY OMITTED IN THEIR PROPER PLACES.
SPEECH OFeMR. BINNEY ON THE KENTUCKY ONTESTED ELECTION.
The resolution of the Committee of Elections coming up for consideration, viz: Resolved, That Thomas P. Moore, Esq. is entitled to the seat in this House to represent the fifth congressional district of the State of Kentucky. And the following amendment proposed by Mr. BANKs, viz: That all the legal votes which were received in Lancaster, Garrard county, whilst Moses W. Grant, Esq. acted as one of the judges, on the first morning of the election in August last, and those of a like character given on the second day of the election, in the casual absence of the sheriff, ought to be estimated in ascertaining the result of the election. Mr. BINNEY addressed the House as follows: Mr. Speaker: The report of the Committee of Elec. tions presents for the consideration of the House two classes of questions, differing materially in difficulty as well as in importance. One of them involves the competency or qualification of individuals whose votes are
on one side or the other alleged to have been bad; the other requires the House to decide upon the effect of alleged irregularities in the manner of election upon votes either admitted or proved to have been good. The difficulty of the cases comprehended in the first class is one of fact or evidence merely. It is so throughout, with the exception of those cases which turn upon the legal definition of residence, where some resort must be had to principles of law, to fix the meaning of this word in the constitution of Kentucky. With this exception, which is of limited extent, there is no other difficulty in regard to any contested case within this class, than that of weighing the evidence which is produced to prove or disprove the age and residence of the voter; and the importance of the decision upon these cases is much lessened by the circumstance, that it cannot well grow into a precedent to govern future adjudications by the House. It is not my intention, therefore, to detain the House by remarks upon this branch of the controversy, further than by adverting, in a very brief way, hereafter, to the case of the
theological students at Danville. But the other class is of a description that cannot be very easily magnified beyond its due proportion both of importance and difficulty. The cases within it are referred to in the amendment proposed by the gentleman from Pennsylvania, [Mr. BANRs,) which claims for Mr. Letcher a number of clearly legal votes, rejected by the Committee of Elections, on the ground of irregularities in the mode or circumstances of receiving them; and these irregularities are said to consist in the premature appointment of one of the judges of election, by the sheriff of Garrard county, before the judge named by the court was in default by non-attendance; and also in the temporary absence of the sheriff himself from the polls, before his regular deputy could come to supply his place. This allegation of defect consequently concerns the law of elections in this House deeply and vitally. It concerns all future elections that shall be adjudicated by the House, for similar questions will recur with every contested election; and, if it behooves the public interest in a most important particular, the right of suffrage, to have a certain, uniform, and reasonable rule in regard to the influence of such irregularities upon the rights of electors, it becomes the House to give its present attention to the consideration and establishment of such a rule. Sir, a majority of the Committee of Elections claim to deduct from Mr. Letcher thirty-eight votes more than from the opposing candidate, on the ground that all the votes given at Lancaster while Moses Grant acted as a judge on the first day, and while the sheriff, Thomas Kennedy, was absent on the second day, until Yantis, the deputy sheriff, arrived, ought to be regarded as illegal votes, although the voters possessed all requisite personal qualifications; and this they claim upon the ground that, by the statute of Kentucky, the sheriff, who was required to open the election by ten o'clock, that is to say, at not later than ten, and was authorized to appoint judges immediately preceding the election, if those named by the county court failed to attend, was not authorized to appoint Moses Grant to act as judge in the place of Joseph Wheeler, until immediately before ten o'clock, whereas he did actually appoint him immediately before opening the election at an earlier hour; and upon the further ground, that the presence of the sheriff was, by the same statute, indispensably requisite to the valid reception of every vote, by virtue of a provision “that the persons entitled to suffrage shall, in presence of the said judges and sheriff, vote personally and publicly, viva voce,” whereas, during a portion of the second day, in consequence of the sudden illness of his wife, the sheriff was absent. I differ in both particulars from the committee, in their interpretation of the statute, and will state my reasons hereafter; but what I desire to bring to the consideration of the House is, the proper effect of such ir. regularities as these, even if the committee have given to the statute its true interpretation. What ought to be their effect upon votes confessed or clearly proved to have been good? To what extent must good votes be necessarily rejected, because they have been received during the existence of even admitted irregularity in circumstances like these? This is the question which I ask the House to consider; and I deem it to be of great moment to this and to all other elections for representatives in Congress. The majority of the committee, and gentlemen on this floor who concur in their opinion, have confined them. selves to the literal prescription of the statute; and having, as they supposed, ascertained its provisions to be of a certain import, they have followed them implicitly, though it has led to the rejection of unquestionable votes, and if their views are followed out, will give a seat in this House to the candidate of a minority of the qualified voters of the district. No proposition can lead to such a
conclusion, except one that I reject without hesitation; namely, that the manner of holding elections prescribed by the States, is part and parcel of the qualification, of electors, and to be respected rigorously as such; and that any defect in the organization of the polls, at the time when votes are received, disqualifies the voter, and fixes the stigma of illegality upon his vote. I reject this proposition altogether... it is hostile to the principle of suffrage, and is intrinsically anti-republican. I reject the proposition upon which the report of the majority rests, that, because the State of Kentucky has a right to prescribe the manner of holding elections, votes not taken in precise conformity with the prescribed manner in all points, are, therefore, necessarily illegal votes. It does not follow. It would not follow, in the judgment of the Legislature of Kentucky, if they were called upon to apply the law to the case of a member claiming a seat in that body. It would not follow in the judgment of any judicial tribunal whatever. Other matters enter into the inquiry, besides the mere fact that the law of a State has prescribed certain regulations for organizing the polls and conducting the election. It is matter of inquiry, to what extent these regulations are, by the policy or express language of the law, conditions, and, how far they may be regarded as merely directory; in what cases noncompliancé affects only the agents who superintend the election, and in what cases the electors also; whether exact and literal conformity in all points must be shown, or whether there is any degree of departure from the prescribed form and manner of the -law, that is not, and ought not to be, deemed fatal. This is a matter of indispensable inquiry, even though the literal interpretation of the statute be as the committee have imagined it; and I shall, therefore, advert to some considerations which belong to this view of the case, before I inquire into the construction of the statute. A distinction between the qualifications of electors, and the manner of holding elections for representatives in congress, exists in the constitution itself. That instrument has placed the qualifications under the exclusive regulation of the States; it is so by necessary implication. “The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the state Legislature.” The States alone can declare these qualifications, and their determination is conclusive. Even a judicial construction or interpretation of them by the State courts is binding upon Congress. Congress cannot take from nor add to them. The regulation of elections stands upon a different footing. “The times, places, and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the places of choosgog, Senators.” The State laws regulate the elections of members of this House, by permission of Congress. In the interpretation of such laws, this House trenches upon no rights of the States. It merely understands, and enforces according to its understanding, a law which Congress can make or alter at pleasure. The House does not alter nor affect the qualifications of electors required by the States, by interpreting the State regulations, as its own sense of the policy and spirit of such regulations may dictate. It is a question of interpretation only, and not a State power. Now, sir, by the fish section of the same article of the constitution, the fullest authority is given to the House to exercise conclusive and exclusive judicial power over this subject. “Each House shall be the judge of the elections, returns, and qualifications of its members.” This power embraces the whole subject. The elections cumprehend every agency of electors, judges, sheriffs, and clerks, from the beginning to the end. The returns are the authentication of the result. The qualifications of its
members are those which the constitution of the United States has prescribed. The whole matter is thus referred judicially to the House, under the undoubted obligation to interpret the State laws instead of rescinding them, but under the equal obligation of giving effect to the will of the qualified electors, and to prevent its defeat by setting up the means as superior to the end. The House has full judical power to decide upon these prescriptions as to time, place, and manner, according to such reasonable principles of interpretation as are applicable to laws whose policy is to secure a due representation of the qualified electors in the National Legislature. What, then, ought to be the interpretation applied by the House to a law of Kentucky prescribing the manner of holding elections for representatives in Congress? The law does not give the right of voting; it is not intended to restrain or abridge it; its great object is to promote and secure a fair and free exercise of it. Gentlemen who argue, as some have argued on this floor, that, being a conventional, and not a natural right, it does not exist unless it is exercised in the precise manner, in all respects, as the State law prescribes, build their argument upon a distinction which is of no value, and confound things which are essentially different. Whether the right of suffrage be natural or conventional is of no importance. It is a fundamental right. Government itself, or rather a particular form of government, is conventional; and if the right of suffrage is as good as the Government, it need not be better. Being a fundamental right, secured by the constitution of Kentucky, it ought not to be, and cannot legitimately be, confounded with those provisions of law which are designed to secure its exercise. That all the provisions of an election law are parts of the qualification of an elector, and to be scrutinized and enforced with the same strictness as qualification itself, is a position that is not warranted by any analogy in the law. Doubtless, the provisions of every statute are entitled to respect and to general observance. It is the duty of those who execute the laws to respect and enforce them all. But when the argument assumes for them such an influence, as that the omission to observe any one of them becomes a defect of qualification in the voter, and obliges this House to reject as illegal the votes received while the irregularity prevalled, the construction becomes an enormous evil. The position is radically opposed to the right of suffrage, as it also is to well-established rules for the interpretation of statutes of this description; and it will make the right the victim of accident, ignorance, inattention, and even of fraud, in the execution of an election law, and, consequently, of those very precautions which were intended to secure its exercise. On the contrary, sir, neither accident, ignorance, inattention, nor even fraud, in the officers of election, in omitting to comply with the prescription of the law, ought in all cases necessarily to disappoint the right of suffrage. If the authority of the officers was colorably or apparently good—if the defects in form were such as did not disturb the fairness of the election, nor pervert its fundamental nature, by making it a vira roce election instead of an election by ballot, or the contrary—if, in spite of irregularities, this House can see that, according to the spirit of the law, the will of the peo| in the exereise of their right of suffrage has been fairy expressed,—and if the State law does not expressly declare the irregularity to be fatal,—then, in my apprehension, the authority of the House to judge of the election, leaves it free to disregard those irregularities, and to give full effect to the will of the majority of qualified voters. It is free to disregard them, in deference to the policy and spirit of the law, and is not bound by a servile attention to forms to defeat them both. Mr. Speaker, I propose this case for the consideration of the House: When all the formalities of the law, in
judges and clerks duly appointed and duly sworn, the sheriff in personal attendance throughout the election, the returning officers performing their duty, and the Governor certifying the result, is it not the law of elections in this House, that the House may disregard the decision of the judges and the return, and give the seat to a candidate in opposition to them? Has not the House authority to throw into the scale of the candidate not returned, legal votes in his favor which the judges have refused to estimate, and thus to give him a seat in preference to the candidate returned? Sir, the Committee of Elections have proceeded on the basis of such an authority in this very case. There has been no regular return in favor of any candidate; and, by the act of the sheriff of Lincoln, there was a total failure to make that comparison and addition which the sheriffs of the different counties were required by law to make; yet the committee have scrutinized the polls, and, in disregard of forms, have reported in favor of giving the seat to one of the candidates. The House, then, is competent to give the seat to a member, by the force of discarded votes, in opposition to the most regular forms. I ask, why is this? The answer can only be, that the right of the voter is superior to forms, and that the abuse of forms to defeat it ought not to succeed. The election law prescribes that all legal votes shall be received; it directs that they shall be counted; and it orders the result to be declared, according to the state of the polls, as the judges of election have received them. But if the contrary occurs, in disregard of the fundamental law of suffrage, this House will redress the wrong, in spite of all the protection that forms can give it. Formal compliance with the law is not, then, essential to title; but the most regular forms will be disregarded, when they stand in opposition to the rights of the electors. If the case be reversed, and the very question in this contest be presented, whether the House is bound to reject good votes, because they have been received and counted by persons who have not in all respects observed the forms of the statute, what answer can be given, except one that accords in principle with that which rules the case first stated? If the House may give effect to good votes when they have been disregarded by the judges, and when the regular forms of the law stand in opposition to them, so it may give effect to good votes when the forms of law have not been strictly complied with in receiving them. The non-observance of form, then, is not necessarily fatal to a vote, as a defect of personal qualification is. suffer me, sir, to pursue this matter a little further. It is said that the voter takes his right of suffrage as the law gives it to him, and that the law gives it to him sub modo, that is to say, in the manner prescribed for its exercise by the election law; and, consequently, unless his vote was taken in the very manner prescribed by the law, it was illegally received, and is a nullity; . I have already remarked that this proposition is unsound, because it confounds the fundamental right of suffrage with the provisions which are made to secure its exercise. But iet me ask, how far gentlemen mean to go with the doctrine, for I am not aware that it has been at all qualified or limited in argument. If the prescription in time, place, and manner, must be observed throughout, to give effect to the right of suffrage, must it be observed with the strictness of a legal condition? Must there be duly-appointed and sworn judges, clerks, and sheriffs, each performing his prescribed duty, without deviation, from the beginning to the end; and does failure in any particular invalidate the vote or the election? Gentlemen should consider that their doctrine may involve not only a few votes, but the whole election; for if the election law is a series of provisions of indispensable observation, they should recoliect that while the common law is styled a nursing father
time, place, and manner, have been duly observed, the
that makes void only that part where the fault is, and
Preserves the rest, the statute is like a tyrant; where he $omes, he makes all void. In this very statute of Ken'ucky the sheriff is expressly required to proclaim the persons elected, in the court-yard, at the end of the elec. tion. Suppose he does not proclaim them at all, or proclaims, them on the house-top, or in the street, because there is no court-yard. It may be that he violates the law, and must excuse it or answer for it to his superiors; but what then? Will any one assert that the election is void for want of a proclamation? Again: suppose the law to require that the election shall be held in the county court-house, and that by a fire, at the very time of election, the judges and clerks are driven into the street, or into an adjacent building, and there finish the polls. The prescription of place has not been rigorously observed; but will not even necessity excuse the change, nor the nearest approach to the place that safety to life will permit satisfy the law? Again: the judges and clerks are to be sworn in a set form of words, prescribed by the constitution or law; and this is one of the substantial ceremonies of an election. Suppose there is a flaw in the au. thority of the justice who administered the oath, or a negligent deviation from the terms of the oath prescribed: does it follow that the election is vitiated? It is well known that a justice whose qualifications are not in all respects perfect, cannot recover his fees of office, nor maintain any action as a justice of the peace. It may also be that the penalties for omitting to take an oath of prescribed form are recoverable at law, though an oath in different form may have been taken. But can it be ar. gued, that an oath taken by a judge or clerk before a justice, in the actual exercise of his office by color of a commission, though in some point defectively qualified, or that a deviation from the set form of the oath, so vitiates the polls that this House must reject them? Nay, sir, if the oath has been altogether omitted by judges and clerk, either by accident or in fraud, the voter not being privy to it, is it the law of this House that votes received by such officers are incurably bad? I cannot admit the position, if it is asserted on this floor. I cannot admit that the omission to swear a clerk of election, though express. ly required by law, is necessarily fatal to the polls. Though gentlemen have in former cases so argued, and in two instances committees have reported to the same effect, this House has not, to my knowledge, sustained the doctrine by its decision. The contrary has been held in England, and is, I think, in clear conformity with principle. Upon principles of settled law, I trust that this House would do the same, if the point were now directly before them; and yet, sir, if this single point of election law be as I suppose it is, gentlemen must perceive that the doctrine, that forms and even the substance of an election law are parts of the voter's qualification, cannot be maintained. It must be abandoned, and some more practical principle assumed for interpreting the election laws of the States, and for preventing deviations from prescribed form from becoming fatal to the right of suffrage.
Mr. Speaker, the most extravagant position that could be urged in a court of strict common law, would be the universal necessity of literal compliance with all forms prescribed by statute, even to give title, still less to give effect to the exercise of an existing right. The distinc. tion between enactments that are directory and such as are strictly conditional is a familiar one; and it is deduced from the obvious policy or spirit of the statute. In the State of Pennsylvania there is a statute, the settled interpretation of which illustrates the principle. It is an act which prescribes that every survey thereafter to be returned into the land office upon any warrant issued after the passage of the act, shall be made by actual going upon and measuring of the land, and marking the lines to be returned on such warrant, after the warrant authorizing such survey shall come to the deputy survey
or's hands; and that every survey made theretofore shall be accounted void and of no effect. Under this act it has been held, that so much of it as prescribes the mode of making the survey is directory, and that so much as requires the warrant to be in the surveyor’s hands at the making of the survey is conditional; that a survey made before the warrant comes to hand is absolutely void; but although the surveyor, unless he goes on the ground and marks all the lines, is not entitled to his full fees, yet that the title of the warrantee is perfect, if any lines are run and marked so as to enable him to identify the tract and ascertain its quantity. The distinction is founded on the consideration, that it is the policy of the law to destroy all surveys made before the surveyor is in possession of the warrant; and that by the provision as to the manner of making them, it means only to give certainty to the survey. The same distinction has been held in regard to other statutes. It would doubtless be applied to quiet the objection, if raised, that the ...#. not made proclamation according to the law of Kentucky; and the principle upon which it depends would probably induce this House to disregard every effect of form occurring in the course of an election, in which it appeared that the votes of the qualified electors had been fairly given to persons apparently competent to receive them, in substantial compliance with the spirit and policy of the law. This House, in the exercise of its constitutional functions as the judge of elections, is a court of the very highest authority, at once a court of law and equity, subject to no appeal, and under no restraint except that which is imposed by a sound discretion, and the obligation of giving effect to the right of suffrage. The enforcement of that right ought to be the great object and end of the adjudication. The forms prescribed by the States, under the permission of Congress, are of secondary importance. They are instruments intended to assist the right; and, in the absence of explicit enactment to that effect, should not be set up to defeat it. By dealing with these forms as some gentlemen require, we deal with them as no court of law or equity would deal with formalities prescribed, either by private deed or by statute, in any case as meritorious, and as full of the very highest consideration, as is the exercise of the elective franchise. The most rigorous of common law conveyances, those of fine and common recovery, are amended even by courts of law; and their defects in form are supplied with much greater liberality by courts of equity. In the case of powers, however rigorously the execution of them may be prescribed by the party who creates them, to take effect only in one form, as by deed under seal and in the presence of a certain number of witnesses, yet a court of equity, where a valuable consideration has passed, will effectuate an execution of the power when not one of the formalities has been observed. This, it is true, sir, is dry, technical doctrine, but it teaches a lesson not unworthy of attention, to a court which is now called upon to adopt a rule that will sacrifice the highest of political rights to the most empty and immaterial of forms. I am aware that formalities, required in some cases by act of Parliament cannot be dispensed with by courts of equity or law. The case of stamps, and the ship registry pro. visions, may be referred to, and some others. But these are cases in which it is the policy of the statutes, as well as the language of their enactment, to make null and void all such instruments as are not made or authenticated in precise conformity to the statutes. Here the policy of the statutes is to carry the elective franchise into full enjoyment, and its forms are devised with this view. It is one thing to say that a court of equity cannot assist an unstamped instrument, and another to say that this court cannot assist the right of suffrage, by preventing a form from being set up for its destruction. There are many cases which must be familiar to gentlemen of the pro