' ,
: 11 , tip A tt jsmrr
71 "f"
. . . i A V A A h V r
JJvL u.JLJL-lZJL-2 ViiV
. ul - J- 4. 'J tv -J r -i.-
v. mi nr TT . 1
PlinLIUKD WEEKLY RY-C1I. C. RAltOTEAU,
EMTOR AVI) rttOPKIETOK.. .
M !s--F.l--!iP
Mil J ? 'i: U.J4
TERM: $2 GO I'l'lt ANNUM, 'IX ADVANCE, OR
$3 00 IF FAYM EST W DELAY Ll SIX 3IO.TL'6.
VOL II.
IIALEFGH, FRIDAY, MARCH 2, 18i9.
NO 13.
TERMS.
The Niihth-Oaholin Timks will be sent lo Pub
tcrilwri Rt Two Dollar mill n half per annum, il paid
'n advance. - Three Dollars will to charged,- if l'-iy-ment
is dc-laved tx months. These Terms will bo in
variably adhered to.
JOTEllTISETIEWS.
For every Sixtct-ii liuor, or Um, Une Dollar for tin:
first, Mid Twcntv-fivo Cuits for each subsequent ill-.
1 aertion. Court Ordeie, &.C. will bo charged 25 per
oeel- hn'lic.r; but a reasonable deduction will be mado
to those who advertise bv the year.
OT Letters on business, uml all Communications
nluiidcd for pifliheatioM, must bo addressed to the
Kditdr, and foil paid.
LEGISLATIVE.
Speed) of filx. Pmitl) of fjcilforo,
Delivered in tht Senate, Jan. 1849.
The Contested Election from the District of Or
an go being under consideration, Mr. Smith ad
dressed the Senate as follows ;
Mueli aa I regret, Mr. Speaker, to consume a
riy portion of tlio tmio of the Senate, approaching
as we arc the period fixed upon for tho termina
tion of the present session, anil with a large a
mount of unBnished business lying on yeur table,
tho importance of the question before us, in the
principles it involves and the precedent it may es
tablish, will not permit ma to remain silent. It
matters little who is permitted to occupy the seat
during the two remaining days of the session, but it
is, nevertheless, due to ourselves, and necessary
for a correct disposition of the case, that the na
litre of these conflicting claims should be properly
understood, and the points in dispute accurately
stated and defined. I cannot hope to add much to
the information already in possession of the Sen
ate, nor to present any new views, after the able
: und eloquent discussion which the subject has al
ready undergone j still it may be expected t!at tho
results of the investigation which, as a member of
the Committee of Elections, I have had the opportu
nity and means of making, should bo eommunicat-
tJ to the Senate, beforejfinal action is taken in the
case, I submit , them, Mr, Speaker, with so un
due confidence in their accuracy, but as the con
clusion of my own mind after the best examina
tion I could give to the evidence. When it is re-
membered that the depositions read before the
Committee, closely written and spread over about
one hundred pages of foolscap, relate to the qun.li
fications of nearly an equal number of voters, and
give rise to numerous questions of title and dom-
Ici), many of them full of doubt and difficulty, the
Senate will be able to appreciate, in some degree,
the labors of the Committee, and the uncertainly
which must iuevitably attend any conclusions they
may arrive at,
If it bo so difficult on the part of your Commit
tee to attain satisfactory results, after tho pa
tient attention they have for weeks bestowed on
the subject, how much more so is it for other
Senators to preserve distinct in the mind, the muss
of unconnected facts presented in the testimony, so
as to give them their proper position and weight
in the determination of the principal issue ? The
elaborate argument ad J reused to ns, on behalf of
the sitting member, exhibiting as it did a thorough
knowledge of the testimony, illustrates at once tho
extent and the nature of the difficulty to be en
countered. While, therefore, tho task of laying
before the Senate the impressions made upon my
own mind, with tho facts which have produced
them, is one of embarrassment, the duty of under
taking it becomes the more decided and impera
tive. Especially, sir, is this duty incumbent on
ouu whose mind, with similar opportunities of in
vestigation, has been led by the examination to
results tho rcvereo of those which hav e been sub
mitted by counsel to the Smate.
In entering upoa the discharge of this duty, it
affords me groat pleasure to say that many of tho
views urged in the argument fur tho silting mem
ber entirely accord with tuy own, while from others
I am construing to express a reluctant but decided
dissent. It will be my-purposo to confine the re
marks I may make to the points of difference be
tween us.
The first Resolution in the series reported and
recommended by one branch of the Committee, af-
eight and Mr. Berry fourteen voles. This dis
crepancy appears to have escaped the notice both
of the inspectors and the Sheriff", and not to have
been detected until some time afterwards. Upon
summing up the votes given throughout the
County, as stated in the inspectors, certificates
there was a tic, ami the Sheriff", as in such event
he is required to do, therefore gav the casting
vote, and declared Mr. Waddell to be duly elec
ted. It has linen urged here and elsewhere that there
wis a palpable repugnancy in one of the returns,
which tho Sheriff" had power and was under obli
gations to correct then, or whenever iiftorwurds he
discovered the error.
1 am Hot prepared to concur in this opinion, ei
ther as to the Sheriff's power or duty in the prein-,'
jseV The returns of the'. Inspectors, it seems to
tiie, so f.r as tlio action of that officer is concern
ed, import absolute verity. TUe facts stuttil in
their certificate, if in. proper rorui, are to be accep
ted as unconditionally true, and, as such arc lo
enter into his computations. It Is the legal evi-
iencc and the only evidence he can look into to
ascertain the state of the polls throughout his dis
trict. There were tallies or marks, it is true, kd-
oii llie back of the certificate, corresponding with
the number of tho.voters whose names were repor
ted, and diminishing by five the number certilied
for Mr. Waddell. These tallies, however, are,
no part, nor can constitute part of the return re
quired by law to be . made by the inspectors ; and
in the present instance they were in no manner
authenticated to the Sheriff.
The law requires (Rev. St Ch. 52. Sec 8-9)
the inspectors at each place of election to make
out a correct statement of the " number of vaks
given to each candidate" and the " names nf per
verse erroneous dec lions which they may have
made, vvhiie ui it. .
I can sc. nothing, therefore, in the conduct of the
Sheriff of Orange .to condemn, in regarding his
control over the subject at an end, as soon as he
had given his cabling vote, and declared the result.
And if it were c tlu rwWe, the mistake is at least so
plausible us. U vindieatj Us inUivcs frorii umvai'
thy reproach or. suspicion.
l!ut however incompetent the Sh
have '
supposition of the validity of the act of resignation 1
which occasioned it. . ;
At thii second (November) Election, a majority
of the votes are given to Mr. Berry, and lie is re-
tunic ' by th-; Sheriff as duly elected. At tlio ope
ning ihs. present session, he appears '''in 'our
und. '.vitM his erodentiulj in his in-nds, Ui r.'Ueh
he is djiared duly elected a monibcr of ibis body,
by t!;e special 'election h!J in ?wveinbcr.. With
ti is evidence of his tills to a seat,' presented by
been to look behind. ic inspectors' certilicate in j hiinsulf without pretest and without qualification,
determining who was elected, there can be no ques- j and with no ether claim or evidence of claim, ex
tion of the right of the Senate to do so, in aseer- j cept such as is furnished by that certificate, ho is
taining the rights of its members j Nor is is there swqru into office, and becomes '.a member of the
any, tliat, on making this inquiy, it wdl app.ar that Senate. It is not alone, therefore, that he volun
a niajtrity b!" live votes were ii, fact cast for Mr! tarily beiiama a candidate n-gi in fur the popular
Berry. "- ." ' '.; ' ; ', ! v.te; h:X tint he a fterv.-nvds accepted tho office
A much more serious question however then j which the npecia! eleetion conferred ; that he re
arises. ; Can the sitting member now claim his j ceivos and enjoys the .-benefits and emoluments tie
seat by virtue of that election? Has there been no j rived miller it ; that he asserts no othe r title tiiah
waiver, forfeiture or abaiiJonincnt by hkn Of his j tlio vote given at the special election, and does as
righis under that election ? If there has been none, j sert that to his seat ; these are the acts which now
then he is eclarly, upon the evidence before the Sen
ate, entitled tojetain his seat.
His counsel has argued with groat force that he
has lost none "f his rights, derivable under the first
election, in consequence of the secondhand in sup
port of the position, lias cited the cases of Williams
vj. Souiers, and of Dickens vs. the Justices of
Moore, decided by our Supreme Court and repor
ted at pKges til and 'lOG, in tho 1st VbI. of Dev.
estop and debar him from falling back upon some
otiier and incompatible title involving a denial of
that under which he has hitherto acted, and whose
it is more decidnlly adverse to the claims of the
sitting member. That was a'.cae in which tho
acts of one in ""', are considered in their bear
ing upon the tenure of that office. An office is
held to have been vacated by inconipa.tiblo.acts
done by hii.i who fiilcd it. It is a case of abaii
Jeninvi:'. or iinpHcd abdicntiori.
The case bsforc the Senate is not , f that chars c
fer; -The sitting member was never in tiiice, by
virtue of the. August election.. -Before tha meot
iirg of this b&'y, he had, at best, jmly a nVS'tcrer.
ter into olTice. lie had a tilk to, but was not in
reslvd with the oflice. .In this condition of things,
acts of less import determine one's rights. . . Before
'possession, less is required to prove an abandon
ment of claim, than is, afterwards, to prove a di
vesting of the office. The. l atter requires greater
solemnities, more '-unequivocal evidence, than the
former. : Facts which might , not '-amount to the
one, would yet be deemed conclusive of the other.
I am unable, therefore, to see any tiling in the ca
ses to which our attention has been called, thai
countenances this part of the argument put forth
in defence of ti'.o sitting member.
But it may be said, that the view winch has
validity he has recognised. 'These are the acts j been taken of. this case, entirely overlooks the
which are deemed utterly irroconcileablc with the
supposition of his holding on to any rights which
he might otherwise have had under tho first elec
tion. . What has been done is a recognition ample
and complete of tho legality of tho special election,
and Bat. Reports. I have examined these cases j and, of consequence, of the vacancy which must
appealed to as authorities for the ground taken, j precede to authorize.it. This admission is involv-
but I can find nothing in them tending lo strength
en the argument. .-
The cases so fur as they are precedents for us
seem to me to lean in precisely the contrary direc
tion.,. As these cases are 'substantially nimilur, I
sons voting and to dchver .it properly certified on will trouble the Senate with but one of them. 1 lie
the day after the election to the Sheriffat the Court J case of Williams vs. Seniors, was briefly this:
Houso ; at which time that officer is directed to - Tho plaintiff, Williams, held tho office of Se.pe-.
add tho yotei fjr the County or District, and upon rior Court Clerk, in the County of Surry, under an
ascertaining who has received the greater number appointment fur life, previous to the year 1832,
of votes to declare him iuly elected ; and it is fur-1 when the General Assembly passed an act chung
thor provided, in flic event tf a tic, that ho shall ing the mode of electing clerks an! limiting the
give his casting vote. '' - term of their office. Under '.his now law, an elcc-
It is evident from this that the important part of
the inspectors, return, tho partjlo Bcrve as an ele-
ement in estimating the general result, is that
which contains the number of votes given to the
candidates. Tho namciofthe voters, tho' required
lo be returned, are ef no further consequence,
than as tending to prevont frauds, ant! to provide
the means for their detection. If there be a dis
crepancy, as there was in this case, iu what man
ner is tho Sheriff to proceed to determine where
the error lies ? How can he know whether it con
sists in an omission to register the names of all
who voted .' or if in the number certified for the
different candidates, in which number the excess is
included, and how it is to be apportioned among
them? By what authority does he depart frviijtlic
plain directions of the law requiring him ta' liiako
up the result from (he ttu'inJer returned to him by
the inspectors, where he undertakes to correct lliosc
returns by tvideuce extrinsic to them ?
There seems indeed to be no intermediate ground
for that officer to take', between accepting tho re
turns, whan in due form, precisely as they are
mado to him, and rejecting them altogrther. Be
tween the alternatives thus presented the Sheriff
did notand could not hesitate to male choice, lib
duty in such a cise was a plain one, and not less
so, thec'ivinc a casting vote, its consequent. - This
too is required to bo clone, as was done, on the day
of comparing tho polls, .1ie result of the election
was then to be ascertained and announced.
After this day the huvlias given to your Sheriffs
no other power, has enjoined no other duty, than
to communicate, in proper form, the result. He is
then by his returns, to isake known, not to change,
what has been done. His agency thereafter is lim
ited to furnishing the evidence, thro' his certificate,
of what cu that day was ascertained and declared.
This claim set up for your Sheriffs to reconsider
and reverse their decisions, to recal even tho vcte
which they may have given, is one too important
to concede. It would be a dangerous' precedent to
arm your Sheriffs with so much jiolitical power,
to substitute their uncontrolled discretion for tlui
clear and unequivocal directions of tho law. It
would be dispensing with the supervision exercis
ed by the presence of inspectors, a surrender of
some of the most essential safe-guards of popular
i rights. It would be to confer upon your officers
tion was held in August following, at which both
Williams and Corners were candidates, and Somen
was elected. At the next Superior Court after the
election, Soincrs gave bonds, took the necessary
oaths and was inducted into the office, Williams
ed in the fact, of his acceptance of the rights and
privileges which that election conferred and ne
cessarily implies an abandonment. of claims that
are not consistent with it. The very statement of
ihe fads of the case, seems to mo to carry with it
a reputation of the argument of counsel. Strange
indeed would. 'it be, if the sitting member can hold
his seat and 'vote as a member of the Senate, solo
ly upon a title derived from tho November elccien,
and yet when that title fails him, can disown the
very authority under which ho acts, and assert
one altogether incompatible with it. Surely be
tween two inconsistent titles, thf re must be, and
there has. been an election. Surely, after
what has trunxpiaeij, the member bus chosen lo
rest his rights upon the validity of one of them ; he
must abide the consequences of that choice.
The case of Williams and Somers, though not
being present and making no objection, and Wii- directly in point, affords, nevertheless, I think, ma
liams afterwards surrendered up all the books and
records belonging to the oflice. ; About a year af
ter this tho present proceedings were instituted by
Williams to recover the office, upon the ground of
the unconstitutionality of the law under which he
had been dispossessed. ,
Tho Court held that the private arrangements
between the parties, extending even lothe canvass
ing before the people, would not divest tlio incum
bent of his office, nor despoil him of his rights, but
they held also, that his acquiescence in the actual
assumption of iheoflieejby Somers, without remons
trance or protest, followed by his delivery over of
tho records and o'.her papers, were unequivocal
acts of abandonment on his p.nt, and a distinct re
cognition of the right of Sinners to take and keep
the office. It is true, as was contended in argu
ment, lh.it tho - opinion of the Court in this ease
does establish, that the act of becoming a candidate
terials from which a principle may be extracted,
that will assist us in determining that before the
Sonato. The case establishes, that wher. one en
titled lo and actually in office, submits to its being
assumed by another with an apparent legal right,
and then recognises that other as actually in the
office, it is an abandonment or waiver of nil claim
on his part to it.
Suppose the former, incumbent, Williams, in
stead of being defeated, had keen the successful
candidate, and had been regularly admitted into
the office under the new law, would he not neces-
. sarily by that act, have diverted himself of his for
j ' aio'r rights ? At the expiration of the term for
f which he was elected, could ho have held on to the
office by virtue of his antecedent title for life ?
What would have been the answer to such a
claim ?
rights of the constituency, and that in this respect
the two offices will not admit of comparison...
It is certainly true that ono is a political, the oth
er a ministerial offico. In the first, discretionary
powers are exercised, in the latter, definite and
prescribed duties are performed. . The one is held
by a representative of "the people, the other by a
mcro a guilt,' executing the laws. But in respec.
to the ..manner" in which these offices are filled,
there is no difference between fhciu. They are
connected with the same appointing power. The
popular vote in each case designates the person
to fill thcin. The same relation is sustained by
each, to the popular right of election, and there is
no reason why the popular will properly expressed
can be disregarded in tho one case any sooner
than in tho other. .. .
But if vhere woro any force in the objection, it
appears to me to be fully met in the fact, that the
constituency concurred, by voting in the special
election. They assume and exorcise the jurisJic-
tion (hat is offered. The Senatorial vote seems to
have been a full ono at each election, I cannot
sec in what way you abridge the popular rights by
confining the contesting parties to the simple en
quiry into the last expression of the popular wilL
It appears rather to be enlarging than abridging
the rights of the people. To leave the selection of
a Senator to the people, as-was done in the special
election, may be yiolding that to which they have
no claim, may have been conceding too much, but
can hardly be construed into an invasion of their
rights You surely do not subtract from tbeir pri
vileges, by extending their powers. To appeal to
their authority is very unlike denying it. So far,
then, from disregarding the rights of tho constitu
ency of these gentlemen, the second election is an
acknowledgment and vindication of them and
this Senate shows its respect for those rights, when
it refuses to look behind tho last exercise of them
I have thus, Mr. Sieaker, endeavoured to show
that wp are not at liberty to entortain the question
as to the August election ; that the sole inquiry
for the Senate now, is, who was elected at the
November election ?
The parlies themselves have gene into no inves
Yon have held the office for the full term for
befofte&e people is not sufficient to deprive one of i which von were elected. Your nrevions tenure of
an otliceof which he is in the rightful possession, j it was surrendered up, when you entered according ! tigations of the qualifications of voters at any o-
aud perhaps, it would not be extending the princi-1 la the provisions of the new law. You have en- titer.'
pKSTloo far, to declare, that it would not take away ; joyed the emoluments, you must submit to the Umi- . To this point alone was iho attention of the com
his right to enter into an office, to which he was ' unions, attached to il by law. Undoubtedly this mittee addressed, and upon the decision made in
clearlyentitltd but of which he had not the posses' would have been dcemej a satisfactory answer to j regard to it, depends, in my opinion, tho right of
sion. If this were the only point (if resemblance j such a claim. The reasoning of the Court in the either party to the seat in contest. I shall, tborc
between the cases, the uuthoiily relied on would be j decision of the case that was presented, would be j fore, Bubmit to the Senate the results to which my
a very strong one for the purposes for w liieh it is i stronger in conducting to the same conclusion had ' mind has teen brought upon consideration of (lie
.:tv.,l T 1 :r t - . ...i ' : .i . t- .. . i . i f i .-!-.. .
eviuence.
cited. Let us see, however, if there are riot other, : tiio facts been us now supposed. It would be so,
more important and striking analogies between the ! because llie posilivo act of accepting and holding
cates that have been over-looked.
It has already been stated that the Slier iff of
Orange had awarded the certificate of election to
Mr. Waddell, tho possession of which, or rather tlu
returns made in conformity to the certificate, secur
ed to him a jivimu facie right to the scat. Upon.
this evidence lie was entitled to take and occupy
his seal as a member of ts body, in like manner
as'docs his opponent, and as do all of us, until re
gularly ousted therefrom by the judgment of Ihe
firms that Mr. Berry w duly elected at the An- some cf the most important functions belonging to
gust election, aud the second declares liuneiiUleu j ilas body, lam unwilling, in order to obviate a
to bis teat by virtue of that election. Similar ; temporary and remediable evil (o invest mere niin
grounds have been taken and enforced iu the ar- J Uteri. il agents with so large a share of authority
gument, in the course of which some ammadver- tnJ discretion. Far better is it, to leave the cor-
sions have been made upon the conduct of the
Sheriff of Orange, for his refusal to recal the cer
tificate of election which lie had awarded to Mr,
WadJell.
The evidence offered befsre the Committee dscs
indeed establish the exV.cnce of an error in one
of the certificates returned by the inspectors to the
Sheriff, in conseqaenc. of which five more votes
than were given were added lo the list for Wad
dell. Had this error, (for error it unquestionably
reiition of wrongs and errors committed by t!icin,to
this body the rights and privileges of whose mem
bers are concerned. Far safer to place your offi
cers under the distinct and definite mandates of
the law, to exercise only the iowcrs and fulfil the
duties which i( confers and prescribes. 1 ran re
cognise in your Sheriff., no power to revise their
proceeding in relation to elections, at any other
place or time than that designated by your laws.
I cannot admit his right to disregard the sworn evi
the offico with the new conditions annexed to it,
weuld bo more significant and decisive upon iho
former rights of the incumbent, than the mere ne
gative act of submitting ta its usurpation by a
ttranger.
The case of the clerk holding the office for life,
and yot entering by virtue of an election under
the new law which limits it, as far as the analogy
extends, is in fact the caso before the Senate. It
Since tho labors of the committee were closed
and the reports from it made, we have been favor
ed w ith the opinion of the Judges on certain ques
tions submitted to them, which greatly relioves the
subject of difficulties that presented themsolves to
the committee. The construction given to the free
hold qualification, prescribed in the constitution fi r
senatorial voters, very much limits the range of uur
inquiries, and, by confining us to tho discussion of
ship of land, of sufficient quantity, WWSont inquir
ing into abstruse anil difficult questions of legal
learuiiitT.
2. All peisms in actual posM;sinn of Lnds,
claiming the title in themselves and exercising un- :
disputed acts of ownership, are jiresi m d to have
the freehold, without other evidenc e, and until the
ewitetry' appear.' '.
3. An 'apparent legal title, in proper form, a c
coninanid by '- uncontrolled dvminion over ; tho
lanJ, is sufficiint evidence of title .
4. Mere f wrong-doers, acquiring possession, or ...
tenants holding under o'herp, cannot vote.
. 5. Those "having' the title lo land.in the adverse',' .
outstanding possession of another, cannot vote..
6, The presumption is that one who votes, has
a right to vote, until repelled by contradictory evi
dence. " -'.
7. The principle which should have regulated' ..
the action of the inspectors, must now govern the
Senate.-.
- With these general propositions in view, I will
now proceed, to inquire, bow stands the vote, pro
perly corrected, as cast at the November election?
I will first call the attention of the Senate to tho
votn for the sitting member.
By referring to both reports from the committee,
it will be seen, that they concur in the statement,
that ten illegal votes were given for Mr. Berry
The reports also agree, that eight bargainors in ..
trust, two owners of mere equitable estates, and
two naked trustees, in all twelve, voted for Mr, Ber
ry, who, according to the opinion of the Supremo
Court, had no riht to vote. Here arc twenty-two
illegal votes, admitted on both sides, to bavo. been
given to Mr. Berry.
The reports . likewise concur in saying that three
legal votes were offered for Mr. Berry, and refus
ed by the poll-keepers, the report of the Chairman
however claiming a fourth vote as legal, which
was tendered for Mr. Berry and rejected.
How stands the case with Mr. Waddell ? Ac
cording to a list which 1 hold in my hand, (I will
not trouble the Senate with too many names) in
which are some cases of a doubtful kind, tho' I
t link the weight of the evidence assigns them a :
position in the list, there were fifteen illegal votes,
including three bargainors in trust, four equitable
O'.vners, one trustee, and one lunatic, which were
given to Mr. Waddell. And the reports agree
that two vi'es were offered for him and refused,
which ought to have been received.
-Let me now consider briefly the cases, about
which there is a difference of opinion, and ascer
tain how the result is to be affected by them. And
first as to the case of the sitting member.
1. Daniel Thomas. The facts proved in rcla
lion to him, are as follows: He is one of several
tenants, in common to whom descended paternal
lands, sufficient to allow an allotment of sixty a- ,
cres to each. To this land, their mother's right of
dower attached. It appears to have been agreed i
amjug the parties by parol, that the dower lands
should be allotted off' by cortain commissioners, ap
peinted by their,, and partition made among the
tenants. The conunisssoiiers accordingly made
the division among the tenants, and an assignment
of dower, by actual surveys and metes and bounds,
and reported the samo in writing. Sixty acres
were given to the vter,jf his several share, of
which twenty are covered by dower. Uuder this
allotment to tho widow ,oach went iuto possession of
his and her separate part, and has possessed and
enjoyed the same in severalty, continually, for the
last eleven years, since the period of assignment
and division. Upon the principles already laid
down, this voto is clearly illegal. S:
!1. W. II. Horner. The proof is, that the voter
has a deed for forty acres of laud, and is one of
eleven children of ono Thomas Horner, who died .
in'ctits, having conveyed hi lands by deed of
trust. 1 he voter, having a leal estate hi an in
sufficient quantity of land, clearly had no right to.
Vote. - -",' .: . . : ;.
3. J. Hughes The proof is, that he conveyed
his 1 aids to his Aunt. J ust before the election she
returned the deed lo him, it never liave been proved :
or registered, to have the litle mado lo his child
ren, she regarding this as pulling an end to thn
Senate. Such was the condition of thiinn, whan i the special election. It is an active direct narlici
the error in reference to one of the returns is thus ; patiou in it an unequivocal acceptance of the of-
not a mcie acquiescence in what is done under ! to a satisfactory result. And hero I may be per
mitted to notice, what I consider a serious error
was,) not been committed, instead of a tie between j dance contained in the inspectors, certificate and to
the" candidates, Mr. Bjrry would have had a ma- look elsewhere for that which is to govern his ac-
jority of that number of the votes in the district.
The returns from tho precinct where this error oc
vurr.il, ruiiUiacd tho names of filly-seven voters.
(Lough i. CHliOedtlai M;- Waddeil t.veivrj f
Hon. To place tee rights of members of the Sen
ate thus Indefinitely under the control and caprice
of a Sheriff, ivmild he scarcely less wise than to
"urtv- j allow vour judges after leaving thcbeu.h, to re-
discovered or ratlier is alleged to havo been disco
vered, upon learning which and to obviate the n
ceesity of a probable prolracted contest, tbc present
contestant, tho' possessing the advantages secured
by tho Sheriffs reliirns.promplly yields his priority,
resigns bis preliminary right to the seat, and de
termines to submit again to tho popular vote, the
decision of the question, who shall represent the
district. The contestant insisted then as he in
sists now, that he was elected by a mnjuity of the
legal voters, even bad the cirur been corrected, and
in making the surrender of what ho regarded bis
rights under that election, he professed to be gov
crned solely by the wish to ascertain, that he might
be guided by, the popular will. Upon this resig
nation, the Governor, whoso official knowlcdgo can
recognize no one as member elect, except the onu
bo returned by the Sheriff, proceeds at once (o fill
tho vacancy by issuing a new writ of election.
With ample knowledge of tho facta, both parties
again become candidates to supply a vacancy in
the office which 'dec lict cxLt except upon the
fico wilh'its incidents, thereby conferred.
Again, Sir, let us suppose that the special elec
tion ordered by the Go vers.. r, like appointments
made by hiui and his council, filled Ihe office only
until the end of tho next session of the General
Assembly will il be contended, that under such
circumstances, tho rights of the silting member
would be oxtended beyond those limits ? Will
any one Concedo to him the power, when he hjs
luke-n hia scat under an authority which limits and
defines it, to annul his own acts and repudiate that
authority ? i ...... . ,
Difficulties equally great attend every utterapWo
clothe him with rights, of which lie voluntarily di
vested himself when he took hit seat npon this floor.
We shall be acting no lees inconsistently, if we
now permit him to disown the very title under
which he sits and votes, in order to claim another
more favorable to his present views.
I have already intimated, sir, that the case re-
lerred to, is not precisely similar lo this before the
bargain. 'Che legality of this vole depends in one
purely logat principlis, is tho moro likely to load 1 vie of the rasa upon the answer ta the, question.
J where did the legal iiue vest intermediately, bo
1 tween the first delivery of llie deed, end its return
j to tho possession of the bargainor ? If iho title '
j never w as diuslcd out of the bargainor, he has tho
! right to vole; if it was iu, the .bargainee during
l..t..r..l ...l..,fl . I'.-, 1..tlt.Ar. ....'- fU
to notice,
into which the counsel for the sitting member lias
fallen. He seems to have proccede d on the ground
that the same evidence of legal title is required In
the voter and in the trial of an action at law. He
regarJsthC inspectors of election too much in the
light of a Court, trying the validity of lilies to land.
I think in this the argument is founded upon a mis
conception of their functions' and moles of actio:'.
To expect of poll-keepers to impure into and decide
conflicting lilies and to determine- nice and per
plexing questions of law, is to suppose them of far
title or not, he could not vate. The .view I enter
Uin of liic cubc is, that the delivery cf the deed,, -;
ii Slautly divested the liile oul of the bargainor and j.
vested il in Ihe burg-aiuco, it being liable lioirever
to revstjii tlio bargainor, unUita proved and rc- vr
istered within ihti.tlnie limited, and allowed by law,
If this m cijrretjl Ihe vote was illegal. , If the -
more learning than they ordinarily- possess, and j title however was tieyqr divested, the ruffai
inore than is necessary for llie performance of their i ble title wo by the unregistered deed, aud thp case ,
duties. To require it of them, would bo, in ho
tnnll degrco to obstruct the exercise of popular
lights. They are placed at the ballot box to e
cure and extend the elective franchise, not to die
troy or abridge it. I shall therefore lay down a
few general prcpositioii, appropriate to llie subject
bef r us, and by which, I think, we should be gui
ded in our inquiries into the qualifications of voters.
J. The inspectors superintending an election arc
Scnat', and that to the extent of the disagreement, i lo leek only.to the visible, and avowed proprietor-
is. prei-cuU4 of a trustee. Dot in potMCstiou, and
therefore not ceiapetent to vote, j i ; , ;
It is iu evidence that these three persona voted .v
for Mr. Berry and Ibey increase bi uuuiber f ,.,
illegal voto to twenty-live. ; . , , . ..,
Uis alleged however, tbat , Ihe vnte of Elijah.
Yt:y, refused by tfie iiisjjei'torn w legal and'
ought to hi'Ve been received for Mr. Berry. The' ;
. facts iu thi case are ; that he iw one of nine rhiU
I drcu to whom as tenant iu cwui,i,ou, (wo hun-'