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fession on this floor, in which the plain language of a statute, making a deed absolutely null and void to all intents and purposes in a certain event, (as, for instance, unless recorded in a certain time,) as has been restricted by courts of law as well as of equity, so as to make the instrument only so far void as the policy of the law required. There is nothing in a mere statutory enactment more than in a private agreement, that places it beyond the influence of the considerations that have led to these decisions. The principle is one of universal application. I submit, then, to the consideration of the House, that when the votes of qualified electors have been received by the judges, no defect in the form of appointing or qualifying the judges, or in receiving, comparing, returning, or certifying the votes, ought to be deemed necessarily fatal to their influence in the election. The forms may be to some extent material, but they are not essential and indispensable. It may become a question whether their omission or perversion has not tended to defeat a fair expression of the public will. The presumption, or prima facies, may be that it has done so. But when it is satisfactorily shown to the House that no such effect has been produced, that the votes received were good, and that all presumption arising from the non-observance of forms is rebutted and taken off, then I apprehend the objection to want of form must cease, and the legal votes claim their due weight in the decision of the House. What I submit to the House is, that the prescribed forms of an election are not part of the qualifications of a voter; and that it is the duty of the House to respect legal votes, without regard to form, where it can be ascertained that the omission of form has done no prejudice to the rights of the citizens, and where the law of the State has not expressly declared that a non-compliance with forms shall be fatal. It may, however, be said, that the due qualification of that tribunal by which votes are to be received and judged, and its continued presence and operation throughout the election, are no matter of form or ceremony, and do not come within the influence of the principles I have adverted to. . There is another principle, sir, of as general application, and of as indispensable use to society at large, as that of making the words of a statute yield to its spirit and design; which principle, in my judgment, relieves the Garrard county election from all objections raised against it by the committee. There is no doubt that, throughout the first two days of the election, from the opening to the close of the polis, two judges were present, who were appointed by the sheriff, and that the sheriff had power to appoint them immediately preceding the opening of the election, if those appointed by the county court failed to attend. It is not, as far as I recollect, contended by any one, that the sheriff was not authorized to appoint judges, and to 9pen the election before 10 o’clock, if the judges named by the court had refused to attend, or had been incapacitated by sickness or death. No gentleman has asserted the necessity of waiting until ten, for judges who would not or could not attend. Then, sir, the polls, before the hour of ten, presented to the voters and to the public, the case of judges exercising their office, in the presence of the sheriff, who had authority upon the refusal or incapacity of the other judges to appoint them; and their was nothing to apprize the electors that the very fact of refusal or incapacity had not occurred. One of them, Isaac Marksbury, had refused; and there was nothing in appearance to distinguish his case from that of Wheeler. Here, then, was the case of judicial authority de facto, in open exercise at the place of election, in the very presence of the appointing officer; and the question is, whether the defect now alleged in argument, that Wheeler had not in fact refused, vitiates the votes received by Grant.

I conceive it to be clear that it does not. The principle which sustains the exercise of such authority, to the whole extent that the rights of third persons are concerned, is perfectly established, and the business of life could not proceed in safety without its aid. The maintenance of the principle, that official authority de facto is entitled to respect, concerns the security of the whole people. We must acknowledge our deeds before judges and justices, or expose our titles to destruction. Our writs must be executed by sheriffs and their deputies, and our land warrants be surveyed by official surveyors. Electors must give their votes to judges, inspectors, or other ministers of the law appointed to receive them. All these officers may have some latent defect of authority, which, in questions concerning themselves only, may be justly set up against them; but there can be no security to the property and rights of any man, if such a defect can be set up to defeat the official act to which a third person has trusted, relying upon the open and unquestioned exercise of an apparent authority. There is the highest authority for saying that the acts of such officers, defacto, are good as to third persons. The question has often occurred in regard to a defect of authority arising from an omission to take an oath of office. Unless the officer takes the oath prescribed by law, the office is void as to himself, but only to himself. He cannot sue for his fees; he is liable to punishment for intermeddling with office until he is legally qualified; yet, in regard to third persons, the validity of his acts is unquestionable; for otherwise, not only those who in no way infringe the law, but whose benefit is intended to be advanced by it, might suffer by faults to which they were in nowise privy. Sir, the position is universally true, that where one comes to his office by color of title, his acts are valid, where they concern the public, or the rights of third persons who have an interest in the act done. A county treasurer in Pennsylvania, though, unless he has taken the oath prescribed by the constitution, he cannot maintain an action for his fees, is competent to receive and give acquittances to third persons for money paid into the treasury. Commissioners of highways in New York, though subject to a penalty unless they take the oath of office, and liable to be superseded by a new election, yet, while exercising their office de facto, may lay out a public highway according to statute, and the town clerk is bound to record it. The public interest gives validity to their colorable authority. All the acts of such officers are valid, except such as are arbitrary and voluntary, and do not affect private or public interests. The mayor of a corporation, who, without being duly qualified, is not a mayor de jure, yet, being so de facto, may bind the corporation by putting its seal to a bond; and although the corporation may remove or displace him, yet, in the mean time, all judicial and ministerial acts done by him are good. ''' that is requisite to bring the principle into operation is, that the officer should be in the exercise of his office, by color of an election or appointment. Now, sir, if it has been deemed necessary, as it has been, in the case of justices, sheriffs, mayors, and county commissioners, to give this security to private rights, how vastly more so is it in the case of the judges, inspectors, and officers of a public election, to protect the enjoyment of that inestimable right of suffrage, upon the due exercise of which the existence of our political societies depends. How is the elector to know whether the judge or the clerk has been in all respects duly appointed and qualified? What gives him the authority to ask for evidence of it? How are the public to be protected from trick and fraud to defeat an election, if the principle I have adverted to is held not to apply? The fact of irregularity is most frequently known only to those who are guilty of it. It may be purposely committed and purposely concealed

until the result of the election shall furnish a motive for

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its disclosure; and that which this House will never know if the candidate favored by the officers of an election shall succeed, they will infallibly know when it shall become expedient to defeat his successful opponent. It is the duty of the House to remove all temptation to trick and fraudulent contrivance, by denying to irregularity the least influence upon the polls when the electors have been in no degree privy to it. The same course of remark, sir, meets the objection to certain of the polls on the second-day, in consequence of the absence of sheriff Kennedy. Let it be taken for granted that his presence, or that of an authorized deputy, was indispensable, according to the provision of the law, that no necessity, however urgent, not even that of attending by the side of a dying wife, that no consent of the judges, could excuse him; that the appointment of Spillman to supply his place was not a legal deputation, (a point which those who have listened to the argument of the gentleman from Kentucky [Mr. Hanni N] will think it difficult to sustain;) and that Marksbury, who cried the votes with the assent of the judges in the presence of Spillman, after the latter had ceased, was not acting for and in the name of Spillman, whom the sheriff had depu. ted. Grant all these positions, and still the case presents that of an exercise of authority by Spillman or in his presence, by color of appointment by the sheriff. I perceive none of the difficulties which the sheriff’s absence, without a lawsul deputy remaining, is supposed to create in the execution of the law. I think his presence was not requisite; but, under any view of the law, the substitution of Spillman was an apparent or colorable authority, to which the principle I have adverted to gives

| the consequence of respecting them would have been to
-

|exclude legal votes. I will refer to some of the cases.
| The case of Prior Lea, decided in the first session of
the twenty-first Congress, was one of the strongest char-
acter, and, indeed, may be regarded as a test case of the
distinction between what is called form and substance. The
law of Tennessee enjoined, among other ceremonies, that,
at the close of each day of election, the sheriff should, in
the presence of the inspectors, put his seal on the opening
in the ballot-box by which the ballots were introduced,
which seal should continue until the election should be re-
newed on the ensuing day; and that the inspectors should
take charge of the box until the polls were opened the next
day, and the seal should then be taken off in their pres-
ence. Now, sir, in the case of election by ballot, these
provisions are not only of the substance, but of the very
essence of the regulations prescribed for conducting it.
The introduction of false ballots into the boxes between
the days of election, is irremediably fatal to the purity of
the election. If the fact of addition can be detected, the
character of it cannot. During the continuance of an
election by ballot, the ballots should be guarded with as
much vigilance as the vestal fire. Hence, the wisdom of
that precaution which required one officer, the sheriff,
to seal the box, and other officers, the inspectors, to re-
tain its custody, and to be present when the same seal
was broken at the renewal of the election on the suc-
ceeding day. The evidence in the case showed, that in
one precinct the ballot-box was not left in charge of the
inspectors, but with the sheriff who had sealed it, and
who placed it, with their approbation, in a trunk, of
which the sheriff kept the key, which trunk was placed

a sanction, for the sake of the public and the individuals, in a room of which the occupant kept the key. In another the exercise of whose rights it promoted. This principle precinct, instead of a ballot-box a gourd was used, and, of authority de facto, reputed public authority exercised instead of sealing it, the sheriff stopped up the entrance openly without objection or suspicion, is, I submit, sir, with paper, tied the whole in a handkerchief, and left it

abundantly sufficient to clear the election at Lancaster from all the difficulties that have been suggested. If it be admitted that the formation of the tribunal sor receiving the votes is as much matter of substance as any prescription of the statute, (and 1 do not mean to question it,) the substance existed to the whole extent that the principles of law require, where the rights of third persons are to be affected. I deem myself entitled to ask gentlemen who do not adopt this reasoning, whether they will surrender any of the provisions of the statute, or insist upon exact consormity to all. If they are willing to dispense with none of them, the whole course of decision is against them. Is they are disposed to surrender some of them, but not those which are in question here, they are bound to state the principle by which what is of indispensable observance to the letter may always be known. As all election regulations, except time and place, are, in the language of the constitution, manner or form, they must explain to the House the rule by which what they regard as substantial and indispensable form, is to be distinguished from formal form. Is it matter of indispensable observance, that the election shall not be opened before ten to give another hour to the voters, when the constitution certainly gives the whole day, and two more if required by a candidate? Is it indispensable that the judge, appointed by the court, should be allowed by his absence to retard the opening of the election, when provision is made to supply his place by another justice of the peace, appointed by the sheriff ls it indispensable that the sheriff shall be present throughout the election, when the law does not appoint any thing for him to do? Are these to be deemed matter of substance, fatal to all the votes received during the irregularity, when by the poll-books you have the means of ascertaining, and in this very case have ascertained, that the votes so received were good and valid? Sir, this House has disregarded provisions as substantial as these, when

with one of the inspectors. The law was thus, in the two precincts, violated in opposite directions, each tending to the same mischief. In one precinct, the custody of the ballot-box was exclusively with the sheriff'; in the other, it was exclusively with the inspectors. The manifest intention of the law was, that it should be in the custody of both—of the sheriff, by his seal, and of the in: spectors, by their possession. Such was its spirit as well as its language; and the provision was one as little ceremonial or modal as any one in the law. . Yet, the House being satisfied that the irregularity had, in point of fact, produced no mischief, it was disregarded. So in the case of John Richards, (Cases of Contested Elections, p. 95,) though the election law of Pennsylvania prescribed that the army returns should be sent to the prothonotaries of the respective counties by the 10th of November, and though the return judges disregarded one of them because it was not sent till after the 10th of November, this House, nevertheless, gave the seat to the candidate not returned, who, by force of the army return that was rejected, had the highest number of votes. This was a question of time, and time is part of the controversy in the present case. In like manner, in the case of Spaulding vs. Mead, (Cases of Contested Elections, p. 157,) the House, upon mature discussion and deliberation, adopted the general principle, that, being the exclusive judge of the elections and returns, as well as of the qualifications of its members, the returns from the State authorities were only prima facie evidence of an election, and not conclusive upon the House. And most wise as well as essential was the decision; for if the returns were conclusive, the power of judging was nugatory. ... So, if an inadvertent slip in any of the circumstances of an election be conclusive upon the House, the power of judging is nugatory. That case records and establishes the principle by which the present contest should be settled, as it is the only

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principle which is in harmony with our institutions. “The great principle in judging of elections ought to be, that the will of the people, fairly expressed, shall govern; and that construction of the constitution and laws of the United States ought to prevail, which consists in giving effect to good votes rather than in destroying them.” Another case establishes a principle of equal importance, so ably maintained by the gentleman from Kentucky, [Mr. MAnshall,) that no candidate is entitled to a seat who is not elected by the majority or greatest number of the legal votes taken and offered at the election; and that the people shall not be deprived of their representative by the fault of their election officers, whether it be the result of accident, ignorance, or fraud. (McFarland vs. Culpeper, Cases of Contested Elections, p. 221.) It is the general rule, as stated by Mr. Madison, in the case of Jackson vs. Wayne, (Cases of Contested Elections, p. 86,) that “whoever has the majority of sound votes is the legal representative.” The report now under discussion offends the law, according to my apprehension, in both particulars. It holds an alleged irregularity in the time of opening the election, in the appointment of a judge, and in the absence of the sheriff-none of them productive of the least assignable mischief—to be fatal to all the good votes received during the occurrence; and it is in favor of giving the seat to a member who, by the re. jection of these votes, is the representative of a minority. . The principles, then, sir, which, in my judgment, obviate the alleged irregularities in the Garrard election, even if they must be admitted to have been such, according to the true interpretation of the Kentucky statute, are, that the election was, apparently, regular; that the judges had good authority, de facto, by virtue of the sheriff's appointment; that Spillman and Marksbury had, in like manner, a good authority; and that the electors, not being privy to the irregularities, if they existed, are entitled to the aid of this House to give effect to their lawful votes. This House, being the final and conclusive judge of the election, in all its parts, is not bound, contrary to the policy of the election laws of the States, to follow the regulations prescribed, with so much greater rigor than any court of law or equity would do, as to disappoint a clear right by giving destructive effect to a form that was intended to secure it. Where there is an apParent, though not an exact conformity in any point, to the regulations of the State law, the utmost legal effect that the irregularity should produce upon the votes re. ceived, is that of drawing them into question, until their validity is shown, which has been done here. If, in any case, it is impossible to estimate the effect which the irregularity has produced, that may be a reason for setfing the election aside, but it cannot be for giving a seat in this House to the candidate of a minority of the qualified voters. These, sir, are the sentiments I have thought it proper to state to the House in regard to the effect of irregularities in the execution of eiection laws. I will now suboit to the House some reasons for the opinion I entertain, that there was no irregularity whatever in the Garrard county election. The constitution of Kentucky provides that, “in all elections for representatives, every free male citizen, (negroes, mulattoes, and Indians excepted,) who, at the time being, hath attained to the age of twenty-one years, and resided in the State two years, or in the county or own in which he offers to vote, one year next preceding the election, shall enjoy the right of an elector; but no Person shall be entitled to vote, except in the county or town in which he may actually reside at the time of the election.” It also provides that representatives shall be thosen on the first Monday in August of each year, but the presiding officers of the several elections shall conone the same for three days, at the request of any one of the candidates.”

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By the first section of the act of Kentucky, of the 2d of December, 1799, it is enacted, “that 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 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 clection, appoint others to act in their stead.” The second section enacts, “that the sheriff of each county shall advertise, at least one month before the first Monday in August in every year, the time and place of holding the election, and what offices are to be filled; and that the sheriff, or other presiding officer, shall, on the day of the election, open the poll by ten o'clock in the morning, and continue the same open until at least one hour before sunset each day.” The third section enacts that the judges of the election, and the clerk, before proceeding to act as such, shall take the oath prescribed by the constitution, and “that they shall attend to the receiving of the votes until the election is completed, and a fair statement make of the whole amount thereof.” and it requires that the person entitled to suffrage shall, in the presence of the said judges and sheriff, vote personally and publicly, viva vocc. Unless the sheriff or one of the judges shall know the person offering to vote to be entitled to suffrage, the clerk is directed to administer to him the oath that he believes he is twenty-one years of age, that he has resided two years in the State, or that he has resided in the county one year last past, and that he has not previously voted at that election. These are all the provisions of the constitution and law of Kentucky necessary to the inquiry. If the sheriff could open the election before ten, the appointment of Moses Grant was legal, for William Wheeler had then failed to attend; and this is the first question. The Committee of Elections have admitted, (and no one could withhold the admission,) that the direction, to open the polls by ten o’clock, implies an authority in the sheriff to open them before. It is the necessary effect of the terms used. The Legislature meant to prescribe a minimum time for keeping the polls open, and not to prohibit a longer time. They were to be opened by ten o’clock, and to be kept open until at least one hour before sunset. It was within the discretion of the sheriff to open them before ten, and to keep them open until sunset, or after. So clear is this interpretation, that the committee have been compelled to say that they might consider the votes before ten o'clock as legally taken, if received by the judges appointed by the court. . But while they say this, they deny the authority of the sheriff to appoint any persons to act in the place of those appointed by thc court before that hour; and they attempt to justify the distinction, first, by the position that, until they have failed to attend, the sheriff cannot appoint others, and “that they cannot be said to have failed to attend until the hour pointed out by law sor opening the poll shall have arrived;” and secondly, by a suggestion of the great mischiefs that might arise by authorizing the sheriff to supersede the appointment of the court by surprise. The whole view of the committee is, in my opinion, without justification or color of support. The act points out no particular hour for opening the polls, but names an hour which the sheriff cannot suffer to pass without having opened them. His authority, by the law, is as absolute to open them before that hour, as it is to keep them open until sunset, or to advertise the election for a longer time than a month. He is bound to consult no pleasure but his own; and in the section which gives him this uncontrolled power, the judges appointed by the court are not mentioned, nor their presence or absence referred to. Their absence, therefore, is no re

straint upon his authority. It is an error, then, to say H. of R.] that the judges have not failed to attend until the hour appointed for opening the polls, for there is no such hour. Again, sir; if the appointed judges fail to attend immediately before the time of opening the election, be that time when it may, the authority of the sheriff to substitute others is complete. In the section which gives him this authority, the hour by which the election must be opened is not mentioned; nor the sheriff's authority to open it referred to. His authority is, therefore, in no way dependent upon the hour. By one section of the act, then, the sheriff has an absolute power to appoint judges, if those appointed by the court do not attend immediately before the polls are opened; and, by another, he has an absolute power to open the polls at any time he thinks fit, before ten o'clock. It offends against the plainest construction of the act, consequently, to take away from the sheriff the uncontrolled power of opening the polls at an earlier hour than ten, which the second section has given him, by making it dependent on the presence of the judges, whose non-attendance at any time of opening the polls he is by the first section expressly empowered to remedy. The plain meaning of the whole is, that the sheriff may open the polls before ten, if he sees fit; and if the judges do not attend, he may appoint others. If the law had intended to postpone the election until ten, unless the judges should previously appear, it is impossible to imagine a reason why it did not say so. And where, sir, is the great mischief of confiding such a power to the highest executive officer of the county—a man, it is to be presumed, possessing, and entitled to the confidence of the people, having a common interest with them, living among them, and bound not only by oath of office, but by the highest personal interest, to do equal justice in such a matter to all parties? What propriety is there in treating the sheriff of the county as an officer to be justly suspected of partiality, and, upon such an hypothesis, to take from him the power which the law has given to him of enlarging the time of election, by which the people cannot possibly be injured? What mischief can result from his even o supplanting the justices of the county court by his own nominees? They must be justices also, and duly sworn; and if they receive illegal, or reject legal votes, the poll-books are the record by which they will be confronted, and their injustice exposed and remedied. . It is sufficient to say that the law manifests no such suspicion of sheriffs generally, and that in the present case the report of the committee does not suggest the smallest ground for it. In every case, if the appointed judges will but take the precaution of being at the place of election in due season, it will prove a simple and effectual remedy for the worst designs which the sheriff can possibly entertain. But try a little further the proposition that, unless the judges attend before ten, the sheriff cannot open the polis. Suppose they are both dead; even this, according to the views of the committee, will not justify the appointment of other judges before ten. They, certainly, in that event, cannot attend before ten, and it is as certain that they cannot fail to attend atten, until ten arrives. Suppose they are sick, and cannot come; the difficulty is precisely the same. Suppose there is a positive refusal to attend. In this case, also, the sheriff must wait till ten, if it be true, as the committee suppose, that the sheriff can appoint only on failure to attend, and that there is no failure until that hour. In fine, sir, neither refusal, sickness, nor death will, according to the committee’s view of the act, justify an appointment of other judges by the sheriff, and, consequently, an opening of the polls before the hour of ten. Such an interpretation of the act may suit the present case, but can hardly suit any other. The committee do not, themselves, appear to be satisfied with it; for they proceed to say, that “they might not have rejected the votes taken before the hour of ten, if

Kentucky Contested Election.

[MAY, 1834.

Grant had continued to act, and attend to receiving the votes until the election was completed, and a fair statement made of the whole amount thereof. But Grant and Wheeler could not both be legal judges of the election.” . By what reasoning the continuance of Grant as a judge, after the hour of ten, can be made to cure the illegality of his appointment before, if it really was illegal, I am unable to comprehend. The suggestion would seem to belong to a state of mind not . clear upon the point of illegality. If Grant was not duly appointed when he was appointed, it would rather seem that the longer he continued in office the greater would be the illegality. But, sir, the position that Grant and Wheeler could not both be legal judges of the election is not correct in itself, any more than it is a reason for holding that if Grant alone had continued to be a judge, it would have made him, though illegally appointed, a valid judge from the beginning. Grant and Wheeler could both be legal judges of the election at different stages of it, and so, in my apprehension, they were. Wheeler was one of the judges appointed by the county court, and whose appointment extended throughout the whole year. He did not cease to be a judge of election, because on one occasion he made default in attending. The act supposes, and intends, that his authority shall continue, because provision is made for his failure to attend “immediately preceding every election.” If he should attend on the first day, and fail to attend on the second, the power of the sheriff is competent, by the clear spirit of the act, if not by its letter, to supply his place, as much as if he had not attended at all; and so if he dies, becomes incapable, or insists upon retiring in the course of the election. There is, indeed, no remedy for such a mischief, except in the sheriff's power. In like manner, if the appointed judge makes default on the first day, or at the first hour of the election, and the substituted judge, after commencing the election, shall himself die, become incapable, or refuse to proceed, as the original authority of the judge appointed by the court continues in force, he may, by virtue of that authority, appear, and lawfully proceed with the election. The true extent of the sheriff’s power may be known from its object, which is to supply a judge as far as the absence of the appointed judge may require. It is supplementary, and it should be so interpreted as to give validity to the sheriff's appointment whenever the annual judge is absent, and to give authority to that judge whenever he exercises the office. Why, sir, should a strict interpretation be adopted to defeat an election, when in any event the people will have a qualified judge appointed by the court, or, in his default, by the sheriff. Instances of more liberal interpretation are frequent in the history of the construction of statutes. The objection made upon this floor, and also by the committee in their report, that the judge who begins an election must conclude it, because he must, according to the act, “attend to receiving the votes until the election is completed, and a fair statement make of the whole amount thereof,” admits of an easy answer. The act is here describing the general duty of the judges, and not the particular duty of one and the same judge. By the interpretation of the committee, the death or sickness of one judge. would defeat the whole election. By the true interpretation of the act, the judge who begins, and the judge who concludes, do together attend to receiving the votes until the election is completed, each performing his duty completely, as far as he goes; and “the fair statement of the whole amount” may as well be made by the clerk, under the inspection of a judge who has been there, but part of the time, as by one who has attended the whole time. It is a statement mechanically made from the poll-books. Upon this part of the case, sir, I do then confidently submit to the House, that, whether we resort to those principles by which a public authority, in some respects

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defective, is regarded as valid in favor of innocent third persons, or we go to the act of Kentucky, interpreting it by its spirit as well as its terms, as all statutes should be, the IHouse must come to the conclusion that the votes of qualified voters, received while Moses Grant acted as one of the judges, have been erroneously rejected by the committee, and ought to be counted for the respective parties in whose favor they were given. It is not unworthy of remark, that for this alleged defect of appointment, thirty-five legal votes have been rejected by the committee in a case in which it has been made manifest that the officers who conducted the election were highminded, honorable men—that not an intentional fault in the course of the election is imputed to them—that all their acts have been scrutinized, to the satisfaction of all parties, without leaving a reproach upon any one of them, and that the opening of the polls before ten, and the consequent appointment of Moses Grant, were at the instance of the people, and for the accommodation of the people, and to allay an apprehension from the existence of cholera in the same place in the two preceding months. The absence of sheriff Kennedy on the second day presents the remaining question. Here, also, it is to be remarked, sir, that an absence, agreed to by the judges, and required by an indispensable domestic duty, which no man will say the sheriff could have disregarded, and his attention to which produced no one imaginable inconvenience, is made a ground by the committee for rejecting forty-five unquestionable votes; and no phrase in the law can be pointed out to give color to such a proceeding, except that which prescribes that “the persons entitled to suffrage shall, in presence of the said judges and sheriff, vote personally and publicly viva voce.” The sheriff has not authority to receive or reject a single vote. On this head the law is clear. A difference of opinion in the judges does not make him the umpire. His duty is to open and to close the polls; and the only legal effect of his presence during the election, is, that if a voter is unknown to both the judges, and known to the sheriff, he may, perhaps, though by no means necessarily, be excused from making oath to his age and residence. If unknown to all, he must be sworn. The sheriff is, undoubtedly, presumed to be present, not to take part in the election, but to preserve the peace, as well as to open and close the polls; but at no time after the polls are opened, and before they are closed, is his presence essential. The clause in the law has an entirely different object from that attributed to it. It was certainly not meant to require the presence of the judges, for they, by a previous clause, are expressly required to attend to the receiving of the votes. It was not meant, then, to require the presence of the sheriff; for judges and sheriff are spoken of together. The object, and the only object, of the clause was to secure public and personal vica voce voting. “The persons entitled to suffrage shall, in the presence of the judges and sheriff, vote personally and publicly viva voce.” The action of the sentence is upon the vote, and not upon the presence of the officer. If the vote is publicly and personally given viva roce, the whole object of this clause is attained. If the law required the sheriff as well as the judges to receive and judge the votes, a different case would be presented. But the sheriff has nothing to do with the votes, not even to cry them; that ceremony, though it seems common at elections in Kentucky, not being prescribed by the law. If, however, the sheriff is one of the tribunal which conducts the election, and has a voice in receiving and rejecting votes in common with his colleagues, the objection to votes received during his absence admits of the conslusive answer, that, being a judicial body, and the law not directing the contrary, a majority was sufficient to constitute the court, so that the absence of any one of

Finally, Mr. Speaker, let it not be forgotten that the principles for which I have contended, and the answers proceeding from them to the different objections of the committee and its members on this floor, have for their object to sustain the most precious right that is known to freemen—a right that has been exercised by the qualified voters of Garrard county, without a suspicion of error in either the manner or the substance of the election, and where.the judges and the sheriff have obtained from the committee the praise of motives not to be impugned, and of respectability and integrity which it has gratified them to declare. The effort on the other hand has tended to defeat this right, and to give a triumph to a minority, by a course of construction exceeding, in literal adherence to forms and ceremonies, the example of any court of law whatever.

One word, sir, in regard to the students of theology at Danville, and I will conclude. The committee adopted the rule, that “the residence of young men from other States and counties at schools, academies, or colleges, as scholars or students, was not such a residence as entitled them to the right of suffrage in the county where they were for the time being;” and they applied the rule to the students of theology at Centre College, in Mercer county. These rejected students were one and all of them above the age of twenty-one. In the language of one of the witnesses, they were their own masters, had come to college on their own means, or on means furnished by others than their parents, and were preparing for the ministry, to go, after their studies should be completed, where “Providence might seem to direct.” They were detached by their actual independent residence, and by their preparation for the ministry, from the parental domicil. They had embarked for themselves in their own self-denying vocation. Their case stands distinguished from that of students in a condition of pupilage at seminaries for general education. They had performed militia duty, and worked on the roads as citizens of Mercer county. One of them had not made his father's house his permanent home for the last seven years. * Another, whose father was dead, but whose mother was resident in Jefferson county, had for two years resided in Mercer county as a student of the college, and for two years before had worked at the printing business in Louisville. He had no intention of ever living in Jefferson county again; and, when he went there in vacation to see his mother, it was only as a visiter. All of them had resided two years in the State, or one in the county of Mercer, and they actually resided in that county when their vote was offered and received. The committee have truly said that they “could not be entitled to vote in the counties where their fathers respectively resided, and also in the county in which the college is situated.” Nothing can be more clear. They never asserted these inconsistent rights. The committee have also said that “they were not in such a situation, as would authorize them to select in which of two counties they would exercise their elective franchise.” This is true, also; that is to say, they could not vote in either of two counties, as they pleased; nor did they claim the right. The committee further say, that “if any of them had been at their family residence they would unquestionably have voted, and the committee can find no principle or authority which would have warranted their rejection.” If this were also true, (which the committee cannot possibly know, for no one can tell what the students would have unquestionably done had they been at their family residence,) to what purpose is it true? They were not at the family residence, and did not vote there, but voted at their actual residence. If their constructive residence was as the committee suppose, it did not in the slightest degree affect their right to vote in Mercer. The com

the three was immaterial. Wol. X, --302

mittee have, in my judgment, mistaken the meaning of

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