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H. or R. )
Organization of the House.—Election of Speaker.
(Dec. 2, 1833.
its first duty was to ascertain who were its own members.
ELECTION OF SPEAKER. This was a representative Government--and the first ques- The House then proceeded to the election of Speaker tion which demanded attention was, whether individuals, of the House. The ballots having been cast, Mr. Jarvis, claiming to be representatives of the people, were actu Mr. Potts, and Mr. C. C Clay, were appointed tellers; ally their representatives.
and, baring couted the votes, reported to the House that Mr. FOSTER having, by permission of Mr. Allan, the whole number of ballots was 218, of which 110 were taken the floor, proposed the appointinent of a Chair- necessary to a choice; that there were man, to give order to the proceedings.
For Andrew Stevenson,
142 votes A member inquired whether a quorum of the Ilouse Lewis Williams, bad answered to their names?
15 Mr. FOSTER further urged the expediency. of choos- John Bell,
4 ing a Chairman. The house was competent to do this, Other scattered votes,
9 whether a quorum had answered or not; just as a number
8; of gentlemen, met for any other business, were accustom- and that ANDREW STEVENSON, of Virginia, having reed to do.
ceived a majority of all the votes given in, was duly electMr. ELLSWORTH thought it would be better to leted Speaker of the House. the Clerk proceed as usual. Till the roll was gone through
Whereupon, Mr. STEVENSON was conducted to the withi, they could not tell who was entitled to vote for a chair by Mr. Williams, of North Carolina, from which Chairman).
he returned his thanks, in the following address: Mr. F057'ER said the Clerk did not act as Chairman;
"Gentlemen: This is the fourth time that you have he only read a list he had made out, on what ground, or been pleased to call me to this high office. For this new by what authority, Mr. F. did not know; surely his pla. and distinguished mark of your confidence and favor, I cing the name of a particular person on that list did not pray you to accept my warm and grateful acknowledg. make him a member of the House of Representatives.
ments; and whilst it will be deeply valued and cherished Mr. SPEIGHT thought it would be much better to by me as the best reward for any past service that I may postpone this matter until the roll had been gone through, have rendered, it shall inspire me with a zeal so to conthe members qualified, and the Speaker chosen.. A deduct myself, as to justify in some measure the choice of bate previous to that, would only produce confusion.
my friends, and merit the continued approbation of my Mr. ALLAN replied, that if it were the custom of the country. Would to God that I was beiter qualified to House to qualify the members before the Speaker was fulfil the arduous duties of this Chair, in a manner suitaelected, and the gentlemen from Kentucky would acqui- ble to its dignity and importance, my own wishes and esce, he should be more willing to comply with this sug- honor, and the just expectations of the House. There gestion; but the usual course had been to elect a Speaker are few stations, gentlemen, under our Government, eith. first, and qualify the members afterwards. It was known er in relation to their elevation, or the nature and extent to every man, of the least observation or experience, that of their duties, more laborious or responsible than that the election of the Speaker gave a character to the House of Speaker of this House; and there probably has been and a tone to all its proceedings; and he asked whether no period in the past history of our country, when the his State was not entitled to have her full and just repre-duties of the Chair were more important, or calculated to sentation upon that foor, when an act so important was impose higher responsibilities, than at the present moabout to be done? Surely she had a right to demand the ment; enhanced as they necessarily must be, by the endecision of a question of such consequence, a question large number of the House; by the increased mass of its which went directly to that vital interest of freemen, the ordinary business; and by those interesting and important right of suffrage. He admitted that the question was of subjects, which will, no doubt, be presented for con. a novel and somewhat embarrassing character, and requi- sideration, and probably give rise to deep political exred to be treated with consideration; but there was abun-citement. dant time for its examination. How could the time of the
For the last six years, my experience in this Chair bas House be occupied more profitably than in putting a ques taught me, not only to know and feel its responsibilities tion of this magnitude to rest? There was no necessity and trials, but to know likewise how difficult and indeed to hurry a decision. Believing it to be conceded that he impossible it is, in an office like this, whose duties must had a right to the floor, he should now proceed, respect often be discharged amidst the warmth of party feeling, fully and very briefly, to state the two fatal objections for any man, whoever he may be, to free himself from which existed to the legality of the paper which had been censure or give unqualified satisfaction; and especially in read at the Clerk's table. They were on the face of the times like these, when the acts of public men are not paper itself . lle should not go behind it.
passed lightly over, nor any very charitable judgment Here Mr. BOON requested Mr. Allan to yield the floor to him for a moment; but Mr. A. refused, and was about pronounced upon their motives.
Under these circumstances, gentlemen, sincerely disproceeding to explain his objections to the sheriff's cer- trustful of my abilities, both in their character and ex. lificate, when (having been spoken to aside by Mr. Chil, tent, 1 come again, at your bidding, to this high" office. Ton] he said that he understood a proposition would be all that I dure hope or promise, will be, to proceed in made by one of the gentlemen claiming the seat, and with the path marked out, and in the spirit of the principles a view to afford an opportunity for such a movement, he which I laid down for my government when I first came would readily take his seat.
to this Chair. It shall be my constant and ardent de. Mr. LETCHER then proposed to Mr. Moore, that sire to discharge my duty with all the ability and adthey should both withdraw until after the election for dress in my power; with the temper and moderation Speaker had taken place.
due to the station and the House; and at least with a Mr. Moore was understood as acquiescing in this pro- zeal and fidelity of intention, which shall bear me up posal; whereupon, The Clerk proceeded to call the residue of the roll; me to the approbation of the just and liberal portion
under every embarrassment and difficulty, and entitle when it appeared that 229 members were present.
of my country. But all my efforts must prove unavailing Those Representatives absent were Messrs. Burns, without that liberal and cordial co-operation which the CHOATE, PEANCE, MUHLENBERG, W19, SINGLETON, House have heretofore so kindly extended to the Chair. BULLARD, E. D. Wuite, and PLUMMER; and, of Delegates, How much will depend upon yourselves gentlemen, indiUr. WHITE.
vidually, and collectively, in preserving the permanent Dec. 3, 1833.)
Election of Clerk, &c.
[H. op R.
laws and rules of the House, and giving dignity and char: that the blouse was organized, and ready to proceed to acter to its proceedings, it is not necessary that I should business. attempt to impress on you; nor is it needful, I am sure, On motion of Mr. MASON, of Virginia, the House then that I should admonish you of the magnitude of your trust, proceeded to the election of a Sergeant-at-arms. or the manner in which it ought to be discharged. But Mr. MASON nominated Thomas Beverly Randolph, this I will take occasion to say, that if it be true that this (Sergeant-at-arms to the last Congress.) Hlouse is justly to be regarded as the great bulwark of Mr. SPEIGHT nominated William D. Robinson, of liberty and order; if here, here in this exalted refuge, the Virginia. people are to look for the security and safety of their The House proceeded to ballot, and Messrs. Mason, free institutions, and to repose with unlimited confidence Williams, and WARDWELL were appointed to count the and affection, how important, how deeply important is it, votes. that we prove ourselves worthy of the trust, and act as Mr. MASON then reported that 220 votes had been becomes the representatives of a free and enlightened given; that 111 were necessary for a choice; that nation.
Thomas Beverly Randolph had received 158 votes. Yes, gentlemen, animated by a virtuous and patriotic William Robinson
54 zeal, lei all our proceedings, I pray you, be marked with Scattering
4 forbearance, moderation, and dignity; let us diligently Blanks
4: and steadfastly pursue those measures, and those only, Consequently that Tuomas BEVERLY Randolpu, having a which are best calculated to advance the happiness and majority of votes, was duly elected Sergeant-al-arms. glory of our beloved country, and render that Union Mr. CLAY offered a resolution, that Overton CARR which our fathers established for the protection of our be appointed Doorkeeper to the House, and William liberties, imperishable and immortal!"
Hunter assistant Doorkeeper; which was agreed to nem. The Speaken then took the required oath to support con. the constitution of the United States, which was admin- The Sergeant-at-arms and Doorkeepers were then istered by Mr. WILLIAMS; after which the same oath was sworn into office. administered by the SPEAKEU to the members respectively; Mr. SUTHERLAND moved that the rules and orexcept that when Mr. MOORE was called, it appeared that ders adopted by the last Congress should stand as the rules he and Mr. Letcher had concurred in allowing the or- and orders of the present Congress. ganization of the House to be completed before the ques- Mr. HUBBARD wished the resolution modified, su as tion between them was again raised, and neither of them to except those rules which designate the number of
members of which the Standing Committees are to be ELECTION OF CLERK.
composed; as it was his opinion that, in consequence of The House then proceeded to the election of Clerk of the enlarged number of the House, the committees the Honse. Mr. Polk, Mr. Herur King, and Mr. Many should consist of nine members, instead of seven, as being tellers; who, after counting the ballots, reported heretofore. that the whole number of votes given in was 231; that
The rules to be excepted (the 55th and the 76th,) of these 116 were necessary to a choice, and that there were read. were for
Mr. POLK wished the resolution modified so as to proMatthew St. Clair Clarke
vide that the members should sit in the House uncovered, Walter S. Franklin
unless under special leave of the Speaker. Ele:zer Early
After some further conversation, the resolution was for Thomas C. Love
the present withdrawn, to make way for the following Walter Franklin
Mr. WARD, from the joint committee appointed to No one having a majority of votes
wait upon the President, reported that the committee had The House then proceeded to ballot a second time for performed the duty assigned them, and that the President Clerk; and the result having been reported, it appeared would send a communication to both Houses this day, at that there were in all 228 votes; of which
1 o'clock. Matthew St. Clair Clarke had
A message was then received from the President of the Walter S. Franklin
United States, by A. J. Donelson, Esq., his private SecBlanks
retary, and read at the Clerk's table. (See Appendix.] No one having a majority of votes, a third balloting was
Mr. HUBBARD offered a resolution, proposing that had, which resulted as follows:
all the former rules and orders of the House be adopted, For Mr. Clarke
with the exception of the 55th and 76th rules, for which Mr. Franklin
he proposed substitutes, going in effect to increase the Blanks
number of Standing Committees, by adding one on the So Walter S. FRANKLIN, of Pennsylvania, was elected Militia; to increase the number of such as heretofore conClerk of the House.
sisted of seven members, to nine; and such as consisted of
three, to five; and also proposing that members sit uncove TUESDAY, DECEMBER 3.
ered, unless otherwise permitted by the Speaker.
Mr. WILLIAMS, considering the propused changes imWalter S. Franklin, Esq., the Clerk elect of the House, portant, wished time for consideration, and moved to appeared, and was sworn into office.
lay the resolution on the table. A message having yesterday been received from the Mr. HUBBARD explained. Senate, stating that they were ready for business, and Mr. BURGES thought with Mr. Williams, and wished had passed a resolution providing for the appointment on more consideration, especially of the proposition in relatheir part of two members of a joint committee to wait tion to the coverings of the heads of members, esteeming upon the President,
it much more important, he said, to attend to what Mr. WARD called up the resolution for consideration, was under them. and it was thereupon concurred in.
Mr. WILLIAMS further urged his objections to acting Messrs. Wann and Speight were appointed mem- at this time on these matters. If gentlemen were to be bers of the joint committee on the part of the House. forbidden to wear their hats, what were they to do with
Mr. ADAMS moved that the Clerk inform the Senatelibem? No place was provided in which they could conII. of R.]
[Dxc. 4, 1833.
veniently be put. He was opposed also to increasing the No one can pretend that the meaning of this certificate size of committees. Experience had taught him that the has been changed, or that any new weight or additional larger they were made, the less efficient they usually be authority has been communicated to this paper by the came. It was often difficult to get a quorum of a com- mere fact that it was taken out of the Secretary's office, mittee together now. If the quorum should be enlarged, and sent here by the Governor. So the right of the genit would be harder still.
tleman who claims under this certificate, if right he has, Mr. SUTHERLAND suggested that it would be better must be sought for upon the face of the paper itself, and to adopt such rules as were not objected to, at once, and not in any surmise that the Governor of Kentucky has furJefer the consideration of the rest for the present. nished any other evidence. But, sir, this certificate does
After some further conversation, this was agreed to: not contain the same evidence of the election of the gen. and the old rules were adopted, with the exception of the tleman who offers it as is contained in the certificates 9th, 55th, and 76th, above referred to.
transmitted here by the Governor to establish the claim of Mr. WARDWELL offered the usual resolution for sup- the other members from Kentucky. plying the members with papers; and
There is this essential difference between the certificate Mr. GRENNELL offered the usual motion respecting in question, and those held by all the other gentlemen the appointment of Chaplains, (two, of different denomi- from Kentucky. This certificate states that the vote of nations, ) ---both of which were adopted.
one of the five counties of the district was not taken into
the calculation when the polls were compared, and it is WEDNESDAY, DECEMBER 4.
only signed by three of the five sheriffs. Each of the
certificates from the other districts in Kentucky are signKENTUCKY ELECTION.
ed by all the sheriffs of the districts respectively. Now, Mr. ALLAN, of Kentucky, called the attention of sir, the question is, whether this certificate is prima facie the House to the question of the contested election for evidence of the election of Mr. Moore? There is upon the filth congressional district of Kentucky, which was the face of the certificate two defects, either of which pending on Monday, and which was deferred, by their woull render it a nullity. The fact is certified that the consent, until the organization of the House should have vote of Lincoln was not counted. The sheriffs, being been completed; that having now taken place, he proposed mere ministerial officers, had no power to reject a single to proceed to the consideration of the subject. [A gen- vote. The law made it their duiy to count the votes of tleman from Alabama (Mr. McKINLEY) rose.] Mr. A. the whole district, for the puspose of ascertaining who could not on such an occasion waive his right to the floor. had a majority. Will any one contend that this law is
Mr. McKINLEY. I rise to a question of order. There complied with by a certificate that states that a part only is no distinct question, that l-am aware of, at present be- of the votes of the district were counted? The right to fore the House.
elect a member to Congress is in a majority of the voters The SPEAKER said that both the gentlemen claiming of the whole district. A certificate showing for whom a the disputed seat, had agreed to defer the question of majority of a part of the district voted does not prove how right to it until the organization of the House should be a majority of the whole voted. completed, and that having been done, he conceived the But again: to make a certificate valid, the law positive. gentleman from Kentucky [Mr. Allas) was not in- ly requires that it should be signed by all of the sheriffs fringing upon the order of the House in calling their con- of the district. This certificate has the signature of but sideration to the subject.
three out of the five sheriffs; in this case, one sheriff can. Mr. ALLAN said the remarks which he was submitting not act for another-nor can a majority of them act for to the House, on Monday, had been suspended by the the whole. They do not represent the same interestvoluntary withdrawal of the two gentlemen claiming the each one acts for a separate community-each one bad in
He would now briefly conclude what he had to say his possession the official evidence of the vote of bis county in presenting this subject to the consideration of the each one was the organ by which this official evidence House. We have now before us the certificate under should be conveyed to the rest. The law, therefore, rewhich Mr. Moore, claims a seat, and also the law of Ken- quired the action of the whole of the sheriffs of the district; tucky, from which the merits of this controversy may be in the first place, to ascertain who had a majority of the easily comprehended.
votes of the whole district; and, in the second place, reIt is likely, from the skirmish we had the other day, quired the signatures of them all to authenticate the certhat there exists a mistake as to the character of this cer- tificate of election. tificate. Mr. A. saw by the printed reports of the debate It is therefore manifest, that the certificate under which on Monday, that Mr. Moore stated in his speech that Mr. Moore claims his seat, is a mere nullity. "the Clerk of this House has received the same evidence It appears from this certificate that all the sheriffs met from the Governor of the State of Kentucky that I am the at Harrodsburg, on the 15th day after the election, the representative of the 5th congressional district, that he time and place appointed by law for them to convene. It has transmitted to establish the claim of the other mem- is difficult to imagine how they could so far mistake their bers from Kentucky.”
duty. The resul: of the election in every county was Mr. a. said that he understood from this statement, then a matter of public notoriety. The election of Mr. that the impression liad been made that the Governor of Letcher was announced in the newspapers; the sheriffs Kentucky was (like the Governors of several other States) had their poll-books before them, that showed at once authorized to give certificates of election to members of that lie had a majority of the whole district. Congress, and that he had, in this case, actually given They met on the 20th of August, and adjourced until such certificate. It is proper that any misapprehension the next day. Whence this delay? To add up the polls on the subject should be corrected. There is no law in and give the certificate was not the work of an hour, yet Kentucky ihat requires the Governor to certify who is it appears from the certificate that the subject was under elected to Congress: in this case the Governor has not un consideration two days. dertaken to give any such certificate. He has fully dis. It appears that a part of the sheriffs were not willing to charged his duty in transmitting to this House the original abide by the voice of a majority of the district; and to certificates of the sherifts of the several congressional dis- control the majority, it seems that the sheriff of Lincoln tricts, which were filed in the office of the Secretary of marched off wiih his poll-book, and, in his absence, three State, and this is all the Governor has done in relation to of the sheriff's lias undertaken to say who should represent the certificate in question.
Dec. 4, 1833. ]
(H. OF R.
In Lincoln county, Mr. Létcher had a majority of 149 to his whole argument; for, if the facts were as had votes.
been stated by his colleague first up, what need could If this certificate should prevail, the people of Lincoln there be of any committee to judge of them? The sole (which is one of the oldest and most highly improved question in the case was, whether the certificate which counties in Kentucky) need not be at the trouble of had been produced, was or was not of a legal character? going to the polls at the next election; they can send The duty of the sheriffs was plainly pointed out by the their sheriff to say whether they shall be allowed to vote law, and all to be decided was, whether they had com. or not.
plied with it or not. He then reviewed the certificate, In good old times, in Kentucky, said Mr. A., a certain and insisted that it was palpable that they had not. Nor candidate who had been beaten at an election, was asked could he admit, as had been concluded, that though the the reason of his defeat. Nothing but the want of a evidence furnished by such a paper might be incomplete, sufficient number of votes," was the reply. In those yet it was the next best that could be obtained in the times of simplicity, this was thought to be a very good case, and therefore ought to be received. Would it be reason; indeed, the idea of getting into Congress without admitted in a court of justice, in a case where there a majority of votes, had not then entered into the mind of were two witnesses to a fact, one of them competent, any one. But, said Mr. A., if the precedent which a de. credible, and disinterested, and the other of an opposite cision of this case in favor of the gentleman whose name character, that, if the first could not be obtained, the tesis returned (Mr. Moore) be once established, there will timony of the interested witness must be obtained, bein future be a way of coming to Congress independent of calise it was the next best? Surely not. the will of the people.
Mr. C. dwelt upon the dangerous consequences that The poll-books from all the counties in the district reg. must grow out of the reception of such a paper to the ularly certified, according to all the requirements of the purity of elections, and the safety of the elective franJaw, was now on the Clerk's table, from which it appear. Cltise. If the nullity of the certificate had not been upon ed that Mr. Letcher bad a clear majority of all the voles its face, then the case ought doubtless to take the usual given in the district. If the gentleman now offering to course, and go to a committee; but the defect was palpabe qualified should, for the present, succeed as the sitting ble, open to all, plain at first sight. member, and should finally lose the seat, the treasury Mr. LANE contended that the question before the would be charged with the mileage and per diem of both House was not, who had or bad not received a mathe claimants, until the final decision of the controversy. jority of the votes given? but, who had produced the Mr. A. said he did not present this as a very prominent best prima facie evidence of his right 10 a seal? Now, he consideration; but still it was one that had a bearing on had yet to learn that Mr. Letcher had produced any certhe case, and ought not to be entirely unattended to. tificate of any kind. It was a principle of law, that in
Mr. A. concluded by observing that he bad endeavored cases where acts had been performed by persons legally to do his duty in bringing before the House this most sin- appointed to perform them, it was to be presumed that gular occurrence. He had presented the law and the those acts were rightly done, until the contrary should be facts of the case. It now remained with the Representa- shown. Now, there might have been good reasons why tives of the people of the United States, assembled here, the votes of Lincoln county had not been included in the in the House of the people, to decide whether they will certificate; no election might have been hield in that give their sanction to a proceeding by which the arbitrary county, or no returns received from it. It had been conwill of the deputy sheriffs shall be substituted for the vote tended by one gentleman (Mr. ALLAN) that a member of a whole district-a proceeding destructive to the rights was not to be admitted to a seat without papers perfect in and liberties of the people of the fifth congressional dis- all respects: but had Mr. Letcher such papers? If nut, trict, injurious to the interests of the State of Kentucky; how, then, would the gentleinan receive him? and may, as a precedent, affect the right of suffrage in Mr. MARSHALL said he concurred fully in the every part of the Union.
remark just made, that this question lay within a very Mr. 'HAWES would not undertake to contradict narrow compass. Indeel, so narrow was the inquiry, what his colleague had stated as the facts of the case, and so palpable, as it seemed to him, was the cor. but contended that these facts, according to his own rect conclusion, that, after the argumeiit already adshowing, proved that the ancient method of admitting vanced by iwo of his colleagues (Messrs. Allar and members to a seat ought to be resumed. He admit- Chilton) against the validity of the certificate, he liad ted that the certificate of the sheriffs was informal and deemed any further remarks unnecessary to prove its ut. defective, yet he insisted that it ought to be receiverl, in ter insufficiency to entitle Mr. Aloore to lake his seat and the present stage of proceedings, as prima facie evidence be sworn in as a member of the House. But, as the deof Mr. Moore's claim, and that he ought thereon to be bate had been continued by the gentleman who had just received as the sitting member until further investigation addressed the House in support of the certificate, he felt It did not appear from the face of the certificate that if it to be bis duty, as one of the Representatives from the the votes of Lincoln county had been included, Mr. State of Kentucky, where this question had arisen, to Letcher would have had a majority of the votes in the present his views to the House. district. The omission of one of the sheriffs to certify, The single question now before the House was, whether was a case not provided for by the laws of Kentucky. A the certificate under which Mr. Moore claimed, containsimilar omission in the election of Governor, however, ed upon its face such evidence of his election, that this was provided for; and there the majority of the sheriff's House could safely, with a due regard to the law, to the were competent, after waiting for a prescribed period, to rights of its members, and to the rights of the great body make a return which should be valid in law. In case of of free electors, admit him to qualify as the representacongressional elections, the law assigned a punishment tive of the fifth congressional district of Kentucky. The for the delinquent sheriffs, yet their failure ought not to gentlemen who have maintained the sufficiency of the deprive a man of his seat under such certificate as might certificate, hare done so on the alleged ground that it be furnished him. Mr. H. professed cntire impartiality, contains prima facie evidence tliat Mr. Moore is elected. and only desired that justice might be done beiween the Prima facie, he said, was a term exceedingly indefinite. parties.
When the right of a gentleman claiming a seat here is unMr. CHILTON followed on the opposite side. He questioned, this fact alone may perhaps be considered as thought that his colleague's admission of the accu- prima facie evidence that he is elected. A gentleman racy of the statement of the facts of this case was fatal l'who has rumor in his favor, who comes forward as the
H. OF R.]
(Dec. 4, 1833.
reputed member, and whose right of membership is un- certificate making known' the result shall be signed by contested and unquestioned, would doubtless be admitted the sheriff of each county in the district. The law, to qualify and act as a member. But if his right were therefore, does not admit of any good reason for excluquestioned, if he were called on to exhibit the evidence of ding the vote of a county from the count-or, to speak his election, if another were on the spot claiming to be more accurately, it does not admit that the result can be the elected member from the same district, he must bring ascertained and certified by the sheriff, if the vote of a forward a different grade of testimony from that which county be excluded. If there was room for conjecture mere rumor would furnish-he must prove the fact of his or surmise, as to the causes of the exclusion of the Lin. election by that testimony which the law requires-by coln vote, those who claimed that the certificate on its that testimony which the law and reason declare to be face conferred or evidenced a right, were not at liberty to evidence of the fact.
aid it and eke it out by surmise. If conjectures and surIt is apparent, he said, that while gentlemen insist that mises were to be allowed, they belonged to the other side. this certificate contains sufficient evidence (prima facie ) Against a paper so illegal and defective, the strongest of Mr. Moore's election, they find themselves compelled presumptions might be indulged: to supply its defccts, to make it sufficient, by conjeciuring The certificate, Mr. M. said, is not only defective in its facts which the certificate does not state. The certifi. contents, by failing to state the main fact, the result of cate (clue weight being given to all its parts) does not the election, and by showing that the legal means of ason ils face assert that Mr. Moore has been elected by the certaining that fact hall been umited, it is also defective, whole district, but that he has received a majority of the and, as he contendeel, fatally defective, in its execution votes in four of the five counties which compose the dis- or authentication. The law requires the certificate of trict--the vote of Lincoln county not being taken into the election to be signed by the sheriffs of all the counties of calculation. The law of Kentucky, by which this case the district. This certificate is signed by but three, when must be decided, requires that all the votes shall be it should have beu:n signed by five sheriffs. Partial as the counted. There is not in law or in reason, any other statement of the certificate is, that statement is not evi. mode of ascertaining who has received the majority, but denced as the statute requires. And yet it is contended by faithful addition and comparison of all the votes given. that this paper is sufficient to cntitle dir. Moore to a seat It is by such addition and comparison that the law of Ken- in this House. tucky requires the result to be ascertained; and it is the If this paper, signed by three out of five sheriffs, staresult so ascertained which it authorizes the sheriffs to ting that Mr. Moore has received a majority in four out of certify. This certificate shows upon its face that all the five counties, is to be taken as sufficient évidence of his votes were not counted. It shows upon its face that the right to sit as a member of the House, on what ground entire vote of one of the fire counties was excluded from could you refuse the seat to a gentleman who miglit prothe addition and comparison. It shows upon its face that duce a statement, signed by three out of five sheriffs, ibat the legal and only means of ascertaining the result of the he had received the majority in thrce, or two, or even election were not adopted. It shows that the result of one, of five counties composing a district, the vote of the the election was not legally ascertained, and it cannot other counties not being taken into calculation? If this therefore pretend to state the result. It could not state is called a certificate, and is therefore deemed prima fucie the result of the addition and comparison of the vote of sufficient, so might that be called a certificare and therefive counties, when it expressly states that the vote of one fore be good. if that should be deemed insufficient, beof the five was not included in the estimate. The fact cause it is not what the law requires, so must this, for the that Mr. Moore received the majority of votes in four same cause, be deemed insufficieni. If the defects in counties, does not prore, it does not tend to prove, that the present case can be passed over, or supplied by conhe received the majority in five counties. It does not jecture-if this certificate, utterly defective in the most prove, in the sliglitest degree, what the vote of the fifth essential requisites prescribed by the law, is still to be county was.
It does not furnish any ground of inference deemed (under the character of prima facie evidence) that she addition and comparison of the vote of the five sufficient to admit the gentleman namell in it to a seat, counties would show a result similar to that exhibited by wliat paper can be brought here, in the shape of a certifi. the addition and comparison of the vote of the four counties. cate, signed by one or more of the sheriffs of a district,
How, he asked, can an instrument be deemed prima that may not equally have that effect? facie evidence of Mr. Moorc's election by the fifth dis- The great fact, Mr. M. said, of which we are seeking trict, which neither states that fact itself, nor any other evidence, and of which this certificate is presented as facts from which that fact must or can be properly in- prima fucie evidence, is the rote of the fifth congression. ferred? The most that can be inferred from the body of al district-the election it has made of a representative in the certificate is, that Mr. Moore is or would be elected, the present Congress. By the laws and usages of Ken. if the vote of Lincoln be not counted. But it neither tucky, the name and vote of every voter is entered in a appears that the vote of Lincoln ought to have been ex- book, at the moment his vote is given, by a clerk, and cluded, nor why it was in fact excluded from the count. under the inspection of judges of the election, appointed Gentlemen, however, guess that there was, or that there for the purpose. This is a record of the fact itself, made might have been, some good reason for excluding or while the fact is in progress, and is an essential accompa. omitting the vote of Lincoln. He must repeat, in an niment, if not an essential part of the election. It affords, swer to these surmises, that the law required all the rotes prima facie, the very best evidence of the votes giren, to be counted, and allowed no other mode of ascertaining and of the election made. It is so regarded by the state the result. The law of Kentucky, he said, requires the ute of Keniucky, which requires the sheriffs to ascertain sheriffs of the sereral counties comprising a congression- the result of the election by faithful addition and comparal district to meet, with the poll-books of their respective ison of the votes ar pearing on the poll-books (or reco counties, at a time and place prescribed, and, by faithful ords of election) of their several counties. The polladdition and comparison of the rotes, lo ascertain who is books being the record of the facts from which the reelected. The sheriff's have no discretion to exclude or sult stated in the certificate is a deduction, constitute ilie omit from the count any vote actually given, even by a sin- primary evidence, and, in comparison with the certificate, gle individual. That the law does not contemplate the the best evidence of the facts. How, then, does the cerpossibility of the entire vote of a county being omitted, tificate, which is secondary and derivative in its charac. appears not only from the mode prescribed for ascertain- ter, acquire the force of evidence at all? It is solely, said ing the result, but from the express requisition that the he, by virtue of the statute which authoriz.s tlie sheriffs