Register of Debates in Congress, Comprising the Leading Debates and Incidents of the First Session of the Twenty-Third Congress Page: 4,209
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4209
OF DEBATES IN CONGRESS.
4210
Mat 21, 1834.]
Kentucky Election.
[H. o* R.
Congress, I have already said, is a great constitutional
right. The law of the State does not give this right. It
is a right paramount to the laws of the State. It is a right
which, being secured by the constitution of the United
States and the constitution of the State of Kentucky, is
above legislative authority.- The laws of the State did
not grant or create it, and, therefore, cannot impair or
take it away, either by direct or indirect legislation. This
ought to be borne in mind in our application of the law
to tlie facts in this case. The law of the State only pre-
scribes forms, and establishes guards, the more effectually
to secure this right, and its uninterrupted enjoyment, to
the people. The people of the State of Kentucky do not
choose the judges of the election. They are appointed
by the county court. The people have no direct agency
in their selection. The people go, at the time fixed, to
the place of holding their election, and find the sheriff of
the county, a known public officer, assisted by two judges,
and a clerk, either appointed by the court or by the
sheriff, in the discharge of their duties as officers of the
election. 1 ask, are they to look further? Is it their
duty to look further? Is it incumbent on them to look to
the time of day, or to the manner or time in which the
officers were appointed? I cannot bring my mind to the
conclusion that it is at all incumbent on them to look into
the title of the officers. I think 1 have been successful
in showing that Grant, at least, came into office under
color of authority, and that he was an officer de facto, if
not de jure. He was called to the office by the person
having the power to appoint, and was sworn as an officer
of the election before he acted as such. I deny, most
positively, that it is or ought to be incumbent on the
citizens of Kentucky to see that all the forms of law, in
regard to these preliminary matters, have been observed
to the letter. The people do not hold this paramount
right—this right which is the foundation of all law, and
without which there cannot be any Government in this
country—by a tenure so frail and precarious. It never
was intended that the freemen of Kentucky should be
perilled in their right ofsuffrage, either by the negligence,
ignorance, or fraud of petty officers. If they even thought
that the officers were not proceeding with regularity, they
have no power to correct or remedy it. Officers gene-
rally feel the dignity of the authority with which they are
clothed, however small it may be. They would not,
probably, change their course, if requested so to do.
Thus the people have no alternative left but to vote or to
go home without voting. They , might, to be sure, go
home without voting, but this would lie defeating an elec-
tion altogether, and would totally deprive the people of
the right of suffrage.
Sir, the great inquiry ought in all cases to be, was the
election free, full, and fair, on the part of the voters?
If it was free, full, and fair, I would take it as the ex-
pression of the public will—as the voice of the people le-
gitimately made known, and which 1 hope I will never dis-
regard. This will is too dear to freemen, too sacred to
the American people, to be stifled or lost in form.
This will is the substance of the election—the form is but
the shadow. I go for the substance—I go for the votes
of freemen, regardless of mere form. I care not for the
shadow. This will of the people, as communicated by
this act will I look, to this voice will I listen; and never,
no, sir, never, will [ permit either, the mistakes, negli-
gence, or fraud, of inferior officers, to alter or annihilate
this act of the voter, no matter how humble and retired
his situation in life may be.
The right of suffrage in the hands of the people is the
all-controlling power in this Government. If this right is
to be lost in the mistakes, negligence, or fraud of officers,
what will the consequence be? You at once take off all
restraint ifpon ignorance and negligence, and give full
license to corruption. If you do this, you at once uproot
and overturn all their constitutional safe-guards which
can alone secure the people in the enjoyment of their
right of suffrage. How do individuals now find their way
into this House? The old-fashioned and common way
with us is by getting a majority or plurality of votes.
This is the way which I prefer. But, establish the prin-
ciple contended for, and what rule do you then adopt'
Members will then find their way here, not by the legiti-
mate call of the people, but through the ignorance or
treachery of some petty officer. Is not this putting the
case fairly? I do conceive that it is nothing short of this.
Whenever you establish, as a governing principle, that
the errors and omissions of officers shall control the acts
and voice of the voters, you do in effect establish the
principle above stated. Men would then find their way
into office, not only without the voles of the people, but
against the votes of the people. When the people have
spoken and made their choice, their voice is to be diso-
beyed, and their choice rejecied. . The people of this
country never intended that the elective franchise should
be made subject to this want of form or abuse on the part
of county or township officers. The great question, as
I have before stated, ought to be, was the election full,
free, and fair? Had those who voted a right to vote, and
did they vote in time and manner as directed by law on
their parts' If they did, I would give effect to it. The
right of suffrage is too precious to be subject to such re-
finements and technicalities. This is the only rule which
will preserve our republican form of Government in pu-
rity. The majority must rule. The person who has the
most legal votes is elected.
The fact that the people themselves, at the time,
thought those irregularities, as far as they had been ap-
prized of them, of no importance, has great influence
upon my mind. Two judges, publicly appointed in the
way pointed out by law, presided, assisted by a legally
constituted clerk, and attended by the high sheriff of the
county. The people of all parties, and ail the candidates,
thought, at the time, all was right. The election was
public, and the citizens, who were the substantial agents
at the election, carried it on without any distrust that it
was wrong. They did not entertain a doubt, at the time,
of its validity; no objection was made by any one; the
people voted for the candidate of their choice; they
believed that they were legally and efficiently exercis-
ing their rights; no murmur was heard for near two
weeks; no inconvenience was felt at the time. All had
an opportunity to vote and did vote. 1 cannot now think
that ail this, thus solemnly and deliberately dome by the
people, is to be set aside by the application of a rule rare-
ly resorted to in criminal proceedings. I regard the
their votes at the polls, is the essence of every election, j opinion of the people. I take for granted that they have
- • ' some knowledge of the law and their rights. They did
not think that any injury or injustice was done them; nor
do they think so now." They do not now complain; the
comprint comes* from a candidate, against whom the ma-
jority of the votes was given. I do not think those ob-
jections ought to prevail. They ought to be considered
as waived by the people, who are the real parties in this
transaction. It is for the interest of the public, and the
Yea, more, it is the election itself; and ought not, and
cannot be controlled by mere form, without destroying
our republican form of government. Who are these pet-
ty officers, that are worked up into such mighty impor-
tance' They do not make the election. They are but
instruments appointed by law merely to receive the suf-
frages of the people. The great and paramount right
consists in the act of voting. It is the voter who speaks
iti uie vuuiiE« u is .i.v .wv. ■ , . , _
The voice and act are his, and to this act alone should we j rights of the electors require, m my judgment, that they
lookI and by this voice alone should we be guttled, lot should be so consideieu*
Tot. X--264
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Gales, Joseph, 1761-1841. Register of Debates in Congress, Comprising the Leading Debates and Incidents of the First Session of the Twenty-Third Congress, book, 1834; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc30759/m1/19/: accessed April 24, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.