The Lancaster gazette. (Lancaster, Ohio) 1846-1852, 1849-11-23

est number of votes in the first District.
for the Senate and House Of Represen
taliyes, bot has given said certificates 10
other candidates. who had not received
the highest number of votes for said Of
fees, in said district.
These specifications areihe mo3e which
has been adopted. .onthe present occasion,
to bring the subjert of them formally be-
fore the Court. The Clerk is an officer
OF the Courts appointment. BY the
Constitution he is made answerable 10
the Co1H for his good behavior" His
conduct is cognizable by the Court, ,oith
orgith0ut specifications, But when The
breach Of good behayiordoes moi happen
III the presence Of the Court, the Court
may perhaps with proprie,y wait for the
exhibition Of charges before taking action
upon it. ......... II ... ..
But ifihe breach Of good behavior"
is once brought home to the knowledge
.of the Court they may, and ought to act
upon that knowledge, and remove him.
When the Court, therefore, is once
possessed Of the facts ofihe case. it is fu,
tile,in my humble opinion. to suppose
that Counsel can relieve the Court nfany
responsibility by their admissions orguiit
or Innocence. Itis for the Cour to de.
lermine and act OIL its O,cn respoasAiF.
B -
And the question TO be determined is,
whether the conduct of the Clerk is "a
breach Of good behavior" for Which he
ought to be remoyedl This question the
Court can determine with or withoutihe
aid of Consul. But whether they hear
Consul and argument ur not, the C0uyt a.
loRe must bear tie rcspoas:bI;iy
1t has been SAID lhatlhe Court has no
jurisdiction over this matter; because !,
periaiued TO a duty of the Clerk, which
was not connected with judicial proceed
ings. .'. -''
But the Clerk is appointed by the
Court; and his appointment is, or ought
to be, made with reference to all his le-
gal duties; among the most important of
these duties, is that which, 1t IS charged, ,
this Clerk has refused 10 perform. The
Court are, by the constitution. made re-
sponsioe totbe public for his ''g,md be.
havior in ofice,-by the laws ofthe State,
under that constitution, the giving Of said
cerI ficates tothe parties entitled to them,
was part ofhis duty as Clerk. M
| cannot conceive howthe jurisdiction
in the case could have been more express
ly giyen,-by the Constitution and the
Laws-than it has been given. 1t has
been given to no one else. The doctrine
claimed for the Clerk would enable him
to defeat all elections, by refusing abso.
Iutely to return the abstract ofvotes, Or
give certificates Of elect on, Whenever
the result ofthe elections should not ac-
cord with his wishes, ,& yet there would be
no tribunal that could relieve the country
from such tyrant by remoral. What is a
Pecuniary penalty Of 5000 in such case1
1t is also said for the Clerk, that in
opening the returns aud in making the
abstract Of votes, and giving the certifi
Gates of election to the candidates elect,
he has ja,ticiai authority aud can pass up-
on tie coast'tatioaality 92ams, and upon
the validity of the returns, and that he
may, therefore, do what he has in this
case assumed to do, reverse the de ;ision
Of the Judges of The elections and give
his certificates otelection to those can
didates who, by the returns, have not le.
ceivcd the highest number of votes inthe
first district. .. ...... -.
The law has expressly placed upon
the Jadges Of tie elections IN tie di6rcat
1cards aad totoasliPs the responsibility of
guarding the polls, and deciding ju,licial-
ly upon the validity of votes, and has ex-
pressy .JorJiddes tie clerk to decide up.
on the validity of their returns. My o.
pinion is that the clerk is a purely MINIS.
ter7a5 officer, in this, as in all his Other
duties, and that any other construction
would lead to the worst consequences
Nothing but the emergencies Of putty ev.
er could, in my opinion, have given birth
to such an idea, either in the mind Of the
clerk or any one else. | do not regard
this proceeding as in the nature ofa Grim.
inal prosecution. 1t is not the punish
ment of Mr.. Roll but the proPer Peyt1rm-
ance ofthe duties belonging 10 tie oGce Of
thc Clerk Of his County, which is to be Sc,
cured by this proceeding. 'a- 20.
Sherifs, Constables and Marshals
might as well undertake to return upon
their wrils, their decision upon the con.
stitutionality of the laws, under which
they were issued; Or the Cleik might him
SELF as we'll go into the same question
whenever he is required to Issue either
mesne or fna! process. Very little. in
deed, would remain for Courts to do, and
no uniformity or certainty would remain
in the administration of Mw. A more
perfect state of anarchy and confusion
cannot be imagined. Such method, or
rather such denial of all method, in the
administration of the law, would be mock
cry of justice, and burIesque on govern
ment.
1t has been said that the act complain
ed of, was the result of au error in indg.
ment, and not of a corrupt purpose, aud
that however wrong that judgment may
have been, and however bad the conse.
quences, the act itself does not constitute
"a breach ofgood behavior" Ut is also
claimed that the Counsul have admitted
the correctnessofthe motives of the clerk,
and that the Court are bound by those
L -