The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1868-11-18

must be the result OF bad logic. I do
not say the counsel are not gentlemen. think
they are and intend to be. But right here
desire to say this. am just as earnest on the
side come here to represent as tho counsel
for the pro- estants. The opposing counsel said
they came hero US the representatives Of law
and order. In the name OF Heaven, whom do
we represent but law and order? I mean by
law and order the law OF the land, which is
above and beyond party. which governs the
rich and poor alike. 1 do not mean such law
as counsel can give. nor such law as can give,
but such law as the constitution and the law OF
the land gives. To this we appeal and nothing
else.
The speaker then went on 10 argue in refer
ence to the returns which were received by the
Mayor in unsealed envelopes, but signed by
the Board of Managers; !; that each board
should have summed up their ballots, made
their statement, and sent it to the Mayor IN q
sealed envelope.
Counsel on the other side had objected to
the reception of returns which dld not come in
a sealed envelope. This provision OF the law
was simply directory, not mandatory and vital.
1t was q simple omission on the part of the
managers in making their returns. which would
not affect their validity one jot or little.
The Mayor says he has the returns
but says they did no. come in sealed
envelope. The council for claimants say,
Though it was irregular il was in no way IA
III,
case, trusting the board would proceed to eX-
amino the returns and see what they came to.
Mr. Barker followed in reply, saying he SIM
DIV desired that their silence might not be
taken as consent to the reception OF loose re-
turns unsealcd, as the returns required by
law. But it did constitute valid and impor-
tant preliminary objection, which it was neces-
sary to notice, that there is no return in the
possession of the Mayor, and that this board is
officially notified of that fact. The board is
officially notified that there is in the Mayors
possession certain reports coming from four
| teen different persons, some OF whom the
Mayor himself does not know how to identify
as the managers Of those precincts. They
come in to him irregularly, on different days
and at different times, some sealed, others IN
sealed; some handed to him BY persons whom
he knew to be managers, and others BY per-
sons he did not know, and does not now know
to be managers. They therefore objected at
i. this stage of the proceeding to the Board of
Aldermen committing itself to the examina
ton of those loose reports and unsealed bal
lots as the examination OF the return OF the
managers OF the city election required by the
act OF 1868.
They would be prepared, when they had
finished with this point, to go on to the recep-
ton of whatever is i'll the possession of the
Mayor purporting to be returns or reports.
Counsel then proceeded to reply to the aryu-
ment OF counsel for claimants IN reference 10
the action OF the managers OF the late elec-
tion. He contended that their construction OF
the act was in accordance with those principles
OF common sense which address themselves to
the most ordinary understanding. The very
first section of the act under which they wero
sitting as a Board OF Aldermen uses the SIN
gular number in reference to the election, and
makes the election unit 1t refers them
directly to the charters OF the city, and shows,
at the very first step, that they were not to
| ind fbnD aa1y in
tions of the legality OF this election to the act
of 1868, but they were bouad 10 refer TO the
charter of the city, aud to the law which pre-
vailed in reference to Municipal elections, pre-
yious to the act OF 1868.
The mode of procedure sanctioned by time
and confirmed by custom becomes pre5crip-
tive right which tho law recognizes as ab-
solutely binding as the enactment OF the Le-
gislature.
counsel then contended that had the mana
gers proceeded under this law OF the City OF
Charleston they would have met as board,
proceeded to elect chairman, been sworn un-
der the election law to count the votes, and
would have made their return through their
chairman, or some one OF their managers ap-
pointed by them. There was nothing III the
act which repcals that law or abrogates that
custom. 1t was matter Of vital Importance
that the Board OF Managers in conducting
such election should meet as beard. They
are mutual checks upon each other. Their
presence at the counting OF all tho votes IS
essential to the liberty Of the people. In such
q course there was less opportunity tor fraud
and partsanship.
He contcuded that if the law of 1868 con-
templated that the managers should meet i'll
various parts of tho city and count, at their
discretion, the votes Of their different pre-
cncts, it would have sail 80. But it expressly
says to the contrary. The Board Of Managers
are required to make report of the whole
number OF votes cast, and they must come to-
eethcr III order to make such report. The
board werc bound to see that all the due soem-
mites in the organization OF tho managers, the
counting Of the ballots, and the making OF re-
turns, have been observed in the processes OF
the recent election, and that none OF the es-
sental requirements OF the law, which
constitute the safeguards Of the liberties
Of the people, hive been dsregardcd. 1t the
ballots do not accompany the returns, they
could not pr )ceed in the performance of their
duty as scrutinizors of the election. Or if they
had not the ballots with the returns, they were
bound to reject the returns as impossible OF
examination. He contendel, also, that they
were bound to reject every box which has not
come to them sealed, or so secured that by
tracing its history they could be assured that
no possible change had taken place III the con-
tents.
Counsel after citing Authorities in reference
to the sacrelness OF the ballot, and the vigil
lance with which it has over been guard FL Ill
this country said that if the board como to the
conclusion that tho managers OF this election
were never organized according to law; did
not act as the law required them to act, under
the sanction OF each others presence and con-
troll, in the COUNTING of Toes and in the making
up of their return, in the transmission OF those
returns with the ballots; that the defects and
violations of law is sufficient ground without
going further to arrest their progress in the
trial and decisions OF this case; that, in consc-
quence of these omissions and violations OF
law, and departures from the essentials OF the
law, there has been no lawful election in the
City of Charleston. He felt they would carry
away with them the consciousness at least OF
having performed their duty in accordance
with their previous character as men OF lntclll-
gence, as men who have acted IN accordance
with the solemn sanction OF their oaths.
MIR. Chamberlain replied, commenting on
the points raised in reference to the transmls-
sion of the returns. He understood the Mayor
to have given official information that the re-
turns of the late election had been transmitted
by fourteen different hands, and that fourteen
separate and independent returns had been
made in envelopes, some sealed and some not
sealed. But he did not understand him to say
that any ballots had been destroyed or were
wanting, or that any OF tie boxes in the
Mayors Office we're empty. When the question
arises, they would be able to furnish proof
and show how they were destroyed, and
who effected the destruction of those
ballots. As to the first point, that four