The Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1837-1845, 1839-12-07

preventative from this Stale, and shall make sepa-
rate lists Of the same which lists they shall sign
tfy seal up Direct and transmit 10 the clerk OF the
county, who shall attend al the court house OF the
county on the Saturday next AFTER the day Of eles-
lion, Tor the purpose Of receiving the same, which
lists shall be delivered to him before Ave O'Clock In
the afternoon of said duty; which said clerk shall
then proceed In public manner 10 make one gene
raj list Of all the candidates voted for aforesaid
together with the number Of votes received for each
Of them and shall transmit the same, az the expense
nf the State to the Governor, or person administer
ing the Government, within seven days thereafter,
having first caused duplicate thereof 10 be filed in
his Office together with the lists from the said town
ships"
Now, II is moi disputed that the clerks Of
the several counties did make up and transmit
TO the Governor, within the time specified, the
general lists above required. So far then as
official forms could sanction such return, they
were, TO all appearance, regular and proper
The next section prescribes the duties Of the
Governor, as follows:
"Sec. ". The Governor or person administering
the Government, shall within FIVE days amer recev
ing the list lay the same before Prvy Council, 10
be BY him summoned for that purpose, and, after
casting up the whole number of votes from the seve-
raj counties for each candidate the said Governor
and Priyy Council shall determine the six persons
who have the greatest number Of votes from the
whole State for Representatives in Congress from
This Stale, which six persons the Governor shall
forthwith commission, under the great seal OF the
State, TO represent this State in the House Of Repre-
senalives of the United States"
II is not disputed that the Governor and
Privy Council, according TO the list received,
did cast up the whole number of votes, and
their authority is in express terms limited to
that merely ministerial office, and thereupon
a commission, under the great seal of the
State, was issued 10 the six persons having the
greatest number of votes.
Thus far then all is clear-and, prima
facie, there would seem no shadow Of pretext
for Directing to the members thus commits
stoned But il seems the clerks of two coun-
ties, Middlesex and Cumberland, did, for rea-
sons either of irregularity as to time, form,
or original right, omit to include, in the gene
raj list which they transmitted, certain votes
in certain towns. How far they were justi-
fed or justi6able in such course, is ques-
ton wholly for the House Of Representatives
of the United States, when duly organized,
and concerning which it is immateral to the
matter we have in hand to inquire. The Co
vernon and Privy Council, it is clear from the
language Of the law defining their duties in
the premises, had no right to 60 behind the
general lists sent to them, and which were
made in the form and within the time requir.
ed by the law. Their sole business was 10
cast up the whole number Of votes on the ge-
neral list transmitted 10 them, and, according
to the greater number of these, to commission
six persons. This office was faithfully dis
charged, and, as necessary consequence,
the commission was given to the six Wing
members. Concerning one Of these there is
no dispute, as at all events, he is admitted to
be elected. But, concerning the other five, it
is contended that, if the votes OF the town
ships omitted in the return of the clerks OF
Middlesex and Cumberland had been count
ed, there would have appeared majority for
FIVE Of the Administration candidates, and
hence it is insisted the Governor was bound
to commission them, and not the others.
But it must be obvious to every one that, Of
these excluded votes in Middlesex and Cum
berland, the Governor and his Privy Council
could have no official knowledge or cogni-
zance. Their duty is fulfilled and exhausted
lists transmitted by the clerks OF coun.ies-
and they can recognize no other source Of
information as to the votes given in any part
Of the State. The Governor has no shadow
Of right to go behind the county clerks list,
nor to inquire into, nor decide upon, disputed
questions arising at the polls. This, as we
have before said, is exclusively the province
Of the House Of Representatives.
How, then, it may be asked, can the Admi-
nistratioh party make even plausible case
against the decision Of the Governor and
Council! Mainly, it would seem, upon the
misapplication Of provision in subsequent
part Of the statute regulating elections, which
requires the Governor, in certain contingent
cies, to send express to the clerks Of counties
for their lists. We again, for the sake Of
entire accuracy, quote the language of the
law, which bares date November, 1920:
"Scc w. or if the certified lists Of
votes given for Representatives Of this State in the
Congress Of the United States shall not be received
from the clerks Of any Of the counties OF this State by
the Governor, or persons administering the Govern
ment, within days Of the time prescribed by law
for the casting up the votes, making list thereof and
certifying the same, by the clerks OF the respective
counties in this State, 1t shall be the duty Of the Co
vernon forthwith send express the clerks Of the
county or counties from which said certified lists of
votes have been received and procure tbs same
at the expense of the State"
Under this provision, il is con,ended, lst,
that the Governor was bound to send express
to the clerks Of Middlesex and Cumberland
for supplementary lists Of the votes by them
excluded; of the existence of which votes,
and Of the fact of their exclusion from the
general list transmitted from these counties,
the Governor was apprizei by outdoor tes,i.
mony and, 2dly, that he should have waited
for such supplementary lists before proceeding
with his Privy Conncil to cas-, up The WHOLE
number Of votes.
This proposition, it will be seen, proceeds
upon grounds wholly untenable.
In the first place, il assumes the existence
Of the contingency in which the Governor is
required 10 send exnress to the Clerks. But