Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1838-09-11

his contest, and before the people a, the second
| election.
9Th. In eight years case only las occurred, and
this OF itself furnishes abundant evidence, that dam
ger TO be apprehended from The frequency of election
under such circumstances.
9th. So far from obecng 10 these designations becom
| ing common should heartily rejoice att. The people
would more truly and faithfully guard their interests,
and .mete out justice 10 the candidates for their favor
than any representative body whatever. The water,
bubbles in The fountain, is puter than is al any stage
| in its downward current 10 the ocean
9TH AS is The most casy, the most speedy the most
correct, and The most Republican mode Of deciding
tested elections, so it is tho most economical II adopted,
would save thousands OF dollars of the pnbc money,
which are wasted every year contested elections.
t has been asked ii the sitting member resigns dies
durInga the tendency Of before the Senate,
would the Senate order w Of election before The de.
crlon OF the contest? No such having occurred
decision having been made by The Senate this point
you may suppose would lie thing and might guess
would be the reverse The worth nothing as an
argument But, ndmit tina! The Senate would issue n"
writ ill il decided the contest the still furnishes
| no precedent for you. There Is analogy between
the supposed case and the before you. Mark The
differences. Firstly. The Senate has control Of the
whole case, and may legally and righ,fuy withhold
writ OF election I'll, il decides the claims of the petitioner.
You consider nothing but The fact Of death rSslg
| nation Of the returned member. The Senate is the
| appellate and Supreme Court, endowed with full u!s
diction You have bot limited jurisdiction of single
branch OF the subject, rather your duty is merely
|
Senate cannot do it, You cannot look beyond the death
resignation Of the returned member and Of this
branch Of the subject the Senate exercises supreme
control fou are but the agent of the Senaie-nn
agent OF temporary authority, Of limited powers md
of clearly defined dues. 2ndIy. The is fairly
before the Senate and ready for its final action The
sitting member was there the petitioner is there; the
evidence Of both taken 81 days before the meeting Of the
Senate, there the claims Of each fairly considered
by the Senate; and the Senate perhaps decide, AMI
may properly decide, not 10 issue writ Of election and
the seat the petitioner satisfied that his claim
has been fairly asserted, fairly contested and fairly
tabishsd and tina, he is fairly entitled represent the
people of his district 3dly. The being under the
consideration Of the Senate and likely to be decided
with convenient d-spach and in few weeks pei haps
days, il might be idle and useless order writ This
cannot apply 10 you FOR the very OF giving
you this power that by exercising il during the
cess, you ght have both houses full when they
vened.
1t has been asked why trouble the people with the
decision Of contested elections: 1t might he asked in
reply, why trouble the people with election at al:-
The Senate can doubtless, fill the vacancies in lis body,
they occur, without troubling The people. No friend
of popular rights representative government, would
ask this question 1t involves principle which ourshss
in full vgor the meridian Of ST Petersburg and on the
banks Of the B0sphorus bat which finds nothing congo
NAL 10 its growth in The sol! OF free and popular 60
vernment
1t has been said that nothing but the consent Of the
petitioner could make good this re-gnaon. Suppose
dozen candidates, must the consent Of all be gven,-
he election IN george Ret spring mas Deem men
Toned have nothing in iha, case, which fayors
this construction. The late candidates. Hone and Tay
loe, rather Than have contested election wished TO
fer the matter 10 the people again and friend suggest
ed the mode adopted TO w.t. the resignation II ooc
sufficient in itself This was the statement current al
the time In the writ Of election, which you ordered,
you affirm that the resignation Of oGe had caused the
vacancy. This writ doubt in accordance with
the uniform practice Of the Stale and your opinion
But suppose that roy loe consent necessary: lie
gives It, You issue writ OF election is Tay loe bound
law by his consent 10 waive his rights under the pr
election, any than if he had agreed the election
receive the Of all the muster ROLF In either
there is no legal obligation. Suppose Tayloc, with
in the fifteen days allowed by law having reconsidered
the matter and believing his chance better before The
House OF Delegates than the people, gives Hooe no
tice Of his intention Information Of ii reaches
you. Will YOU revoke your writ presume 80; for, &C
cording 10 TINS doctrine, there is vacancy during the
tendency Of contest. You woke The writ Of election
The contest goes TIL Tayloc concludes 10 abandon it,
from i'll health or other DO you issue 4 second
writ: suppose So for the contest being abandoned,
vacancy But Tayoe recovering his health, and
prosecuting his contest finally carries 10 the House OF
Delegates The petitioner may change his determina
ton often az he phrases Whatever may be The moral
Obligation The law imposes no restraint Let me ask,
does the varying caprice within Of any man furnish
rule of action for you: Is your action regulated ny
the legal atoms Of citizens and moi by your con-
cepons Of their moral obligations:
II has never been doubted. unless it is doubted
that a Senator had perfect right To reign his Office al
anv moment II has ne yer been doubled, iii now that
this resignation necessarily ard PSo taeio caused va
cancy. Such has been The uniform opinion Of our poo
pie. such has bren the uniform opinion Of our law
makers ard magistrates; and correspondent practice
has uniformly prevailed since The adoption OF the amend
cd Constitution. Not doubling this co,emporsneors.
varied and universal opinion to be right, Col Mallory
resigned his Office OF Senator TO which he had been
elected by the people OF This District. As no can
question the tor his resignation he might have
assigned any thu, he pleased and ne pleased he might
have assigned none His resignation would have been
"a rhana hp in snD
was he preferred 10 send the election 10 the people, IA
Their than encounter the trouble OF contest before the
Senate mot that he loved Cesar less, but that he loved
Rome more" He resigned his Office and is no longer
member OF the Senate His rights and privileges ss
such his powers and duties are all gone AS to ha Po'
l,ical obligations responsibilities, and relations he s
dead He cannot act or suffer as Senator
Such being unGuestionsby the case he can do nothing
in this contest He take step to assert his own
claims nor resis, those Of his opponent He cannot
give ~ receive notice He cannot take evidence. He
strike out, or object TO the bad votes on Dr u
poll He prove good The votes tina! are objected
his poll He Is Powerless, both Tor attack and
defence.
LIE, Us now zee the effect. Of the Interpretation Of The
law that a resignation under such Circumstances causes
no vacancy BY the law concerning elections,
each party furnish list OF the votes he objects TO
on the Others POLL which will be considered as bad, un-
less the party whose poll they appear shall prove
| them TO be good Dr.. Scott has furnished list OF 13
votes which he objects Col Ma0rys poll, and, as
Col Mallory cannot lake evidence TO prove them good,
| all the AZ mus, be deemed and counted bad Colonel
Mallory object 10 any votes on Doctor SCOTS
poll and all his will be considered and counted as
good Col Mallory has 43 stricken from his poll,
ana Dr. Scott one; and all this without particle OF
evidence taken by either party either side. Colonel
Mallory cannot get the seat himself nor can he prevent
Dr. Scott from getting it, DR. Scott declared elected
by some thirty odd votes lie is elected, not because he
proves that lie received minority Of legal votes but
because the member has resigned before or after
notice Of the contest and can IN law prove nothing ne
| Trim nnt IN ~
legal impotence of snother-and he whom the people
rejected at the pos rides over the popular will by
! fiction of the law.
Again: Suppose Col Mallory had died after receiving