Register of Debates in Congress, Comprising the Leading Debates and Incidents of the First Session of the Twenty-Third Congress Page: 4,301
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4301
OF DEBATES IN CONGRESS.
4302
Mat 28, 1.834. ]
Kentucky Election.
[H. of II.
day, in the absence of the sheriff. That part of our law
which refers more immediately to this point, reads thus:
" The persons entitled to suffrage shall, in" the presence
of said judges and sheriff, vote personally, and publicly,
viva voce." Upon the authority of this clause of the law,
the majority of the committee rejected thirty-two votes
given to Mr. Letcher, and thirteen given to Mr. Moore.
They did so on the ground that the lav.' required the elect-
ors to vote in the presence of the sheriff. They consid-
ered that the requisitions of the law could not be dispensed
with. Although, Mr. Speaker, strictly viewed, it may
have been the duty of the judges to have abstained from
receiving votes until the arrival of a deputy sheriff to sup-
ply the place of the sheriff, who was necessarily absent on
account of the illness of his wife, yet, inasmuch as this
omission was the result of a casualty unforeseen, and
over which human agency could have no control, I am in-
clined to vote against the majority of the committee in
this particular. This proceeds from an unfeigned desire
to effectuate the popular will, whenever it can be done con-
sistently with the law and the constitution. But, in rela-
tion to the votes given on the first day, before ten o'clock,
in the absence of the judge appointed by the county
court, I entertain a very different opinion. What, sir, is
the language of the law on this subject? It is this: " The
justices of the county court shall, at their court next pre-
ceding 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
election, appoint proper persons to act in their stead."
"The sheriff, or other presiding officer shall, on the
day of every election, open the polls by ten o'clock in the
morning'."
"The judges of the election and clerk, before they
proceed to the execution of their duty, shall take the oath
prescribed by the constitution. They shall attend to the
receiving the votes until the election is completed, and a
fair statement make of the whole amount thereof."
In pursuance of this law, the county court of Garrard
county appointed Isaac Marksbury and William Wheeler
to act as judges of the election. Marksbury became a
candidate for the Legislature, and declined serving as a
judge of the election. But did Wheeler decline serving?
or, in the words of the law, did he " fail to attend?" For
it will be remembered that it is only in case of a " failure
to attt-nd," that the. sheriff has a right to appoint a substi-
tute judge, The contingency must happen before the
power intrusted to the sheriff could be exerted. The
question arises, When can this contingency be said to
happen? 1 answer, at ten o'clock, and not before. I
maintain that, H the judges attend by ten o'clock, they
haVL- not failed to attend to hold the election as required
by the provisions of the statute just cited. And, as a ne-
cessary consequence of this position, 1 maintain further
that, if the appointees of the county court do attend " by
ten o'clock," they have a right to commence and proceed
with the election, and that the previous acts of the ap-
pointees of the sheriff are necessarily invalid and void.
In examining the election laws of Kentucky, Mr. Speak-
er, it can be easily perceived that the .Legislature were
unwilling to intrust this important and formidable power
to the sherdfj if it could be conveniently avoided. With
this feeling, they made it the duty of the county court to
appoint two of their own body to officiate as judges of the
election, and, with evident propriety, conferred upon the
sheriff tile power of appointing only in case of absolute
necessity—only in the event that the county court should
fad to make an appointment, or in case their appointees
should i.ul to attend. Now, sir, let me inquire at what
liine the judges can be said lo have foiled to attend? Some
point of time for their attendance must be assumed. Shall
it be after midnight of the previous day, or at daybreak,
or sunrise, or six, seven, or eight o'clock of the first
morning of the election, or shall it beat ten o'clock? Can
it be contended, sir, that a sheriff shall have the danger-
ous power of proceeding to the court-house at sunrise or
sooner—that he shall then decide that the appointees of
the county court have " failed to attend," and, in violation
of all law, and reason, and justice, foist into authority ap-
pointees of his own, in contempt and disregard of the pre-
vious appointments of the county court? Shall he have
the power thus to create a vacancy that he may fill it?
Shall the judges'appointed by the county court be com-
pelled " to camp upon the ground" to avoid a surprise
and ouster by the sheriff? Shall {hey be compelled, at
the " crowing of the cock," to abandon their chambers,
speed with precipitation to the court-house, take their
seats, and there remain to prevent the sheriff from jdecla-
riiig that they have failed to attend? Or shall they have
the right to attend at the usual time, and in the usual man-
ner, to conduct a legal and regular election? Shall the she-
riff have the dangerous right of declaring a vacancy at any
hour of the morning, and to fill it with the connexions, par-
tisans, or instruments of himself, or a favorite candidate?
Or shall Tie be compelled to wait until ten o'clock to see
whether or not the legitimate judges have failed to attend?
Sir, the latter course is obviously the proper one. There
is no danger, and can be none, in adopting it. It will
afford ample time to conduct and complete a full and fair
election. But, in the former course, I can see serious
and numerous evils. It is pregnant with flagrant and cry-
ing injustice. , It can he prostituted to subserve the vilest
purposes. It will open a field where can be sown, with
broad cast, seeds of the rankest corruption. Let me not
be told, sir, that this mode of reasoning is founded upon
the presumption that some sheriffs are dishonest. I do
not mean to fulminate such a charge against them. So far
as they are known to me, they are, in the genera!, men
of integrity and honor. But i do mean to say, that—
which I have sorely fell:—sheriffs have sometimes betted
large sums on the result of elections; sufficient, for aught
! know, to stimulate their passions, poison their judg-
ment, and warp their sense of duty. Now, sir, if in such
a case, the sheriff should exercise the monstrous power
with which it is contended the law has invested him,
what will become of the boasted purity of elections, and
the sovereign voice of the people?
But, Mr. Speaker, suppose that honorable gentlemen
arc correct in the proposition that the, sheriff had a legal
right to appoint Grant before ten o'clock—then I contend
that he was a judge for the whole election, and Wheeler
had no right to lake his seat as judge at ten o'clock, and
thereby eject Grant. If Grant was a legal judge, Wheel-
er was not; and if the latter was, the former was not.
Gentlemen may take either horn of the dilemma they
please; either the votes taken before Grant were illegally
taken, or those taken before Wheeler were. Why?
Because the law does not contemplate the appointment of
two sets of judges—the one appointed by the county
court and the other by the sheriff, to act alternately ill
the progress of the election. The law says,, the judges
"shall attend to the receiving the votes until the election -
is completed, and a fair statement make of the whole
amount thereof." Did grant do this, or did Wheeler do
it? Neither did, sir. Yet the law is imperative that it
shall be done. How are the votes certified, sir? }>oes
Grant certify to the correctness of the votes taken before
him? No, sir; Wheeler does it. He undertakes to cer-
tify, not only to the votes taken before himself, but to
those taken before Grant also. It can be hardly necessary
to say, sir, that the proceedings of the sheriff, in making'
this appointment, were a palpable departure from the ne-
cessary and substantial forms and, requisitions of the law.
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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/m1/65/: accessed April 25, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.