Year: 1859

making the contest and the time making are stated
The act Of contest is alone mentioned In any contested
election the Governors obligation send the returns to
the OaSe attaches. He is not wait until proceed
had in the House. The House call upon him
returns The of contest when made known
him. deprves him Of the power to issue commission to
the candidate returned elected. Ills only function in
that case and it simply ministerial is to keep
the returns until the House meets, ana then to transmit
them to the House without delay, and without any
ton the part of the latter Contest ties his hands


contested case is not intended to be submitted to him
in except the temporary custOdary of the
turns, and these he is bound-without passing upon
them, or acting upon them IN any respect ana without
hearing from the House. sendn 1.-The House, The
commission which may be legally issued under the prior
section gives apparent validity to the paryS claim;
but the subsequent section clearly shows that in of
contested election, the House of Delegates alone
the Judges OF the election anu quaihcatlon OF the cahdl
dates at such election aad that In such the com
mission has operation 1t deals with the election unaf
feced by the action OF the Governor He IS not to express
opinion upon the contest way the other The
whole subject is submitted to the House for
their sole and exclusive opinion and Judgment
and the commission which he is to issue is to the
ddate adudged by the House to be elected. The Con
sttution nowhere provides for his issuing two commits
sOnS The that he issues under the 29th section is in
the absence of contes-the only he is authorized
ISSUE in of contest is to the candidate decided by the
House have been elected In such case, therefore,
his authority to commission arises only after the House
has decided


1t will be SEEN too that latter section
brace all the elections included within the former Judges
clerks and registers are alone provided for and as to these
tits conclusion, this point confidently submitted that
in a like the before the Court, the Governor
has no authority to issue commission to the respondent
and that such commission evidence whatever that he
elected the Cerkshp in question And it also with
equal confidence submitted that whether he is the success
sor, who is whether there is any successor
only he ascertaned after the House of Delegates shall
have decided the contest


III. The third question la lis not the petitioner
titled to restoration to his Office the hands of the Court?
- Has not tie Court the authority and is it not its
duty to punish the wrong doer itself?


l. This would seem to he too plain for argument. This
question assumes the right Of the petitioner to the office,
and to the custody of the records belonging it. to be
the sole person competent to its duties Is it not then,
self evident that it is within the Courts power and its
Slty, to restore him to the condition in which he was
when he dSpossaSsrd by the respondent The archives
of the Court, and the functions of the legal Clerk
indispensable to the discharge of the duties of the Court
Without its records, Its papers, its seal and its officer,
its functions be properly promptly and
securedy performed.


The duty of selfpeservation, which belongs to every
tribunal clothed with public authority involves the pow
invoke. We hut ask the Court save itself
restore itself legitimate sphere to place itself in
state to discharge its high trusts when ask it to
the outrage complained of by putting the petitioner
where the Constitution and laws nut him into the office
which his and which is vital in all particulars
to the Court To cite authority such point would be
| idle. No one lawyer or not can possibly doubt
that power exists. Its obvious the power
call the Sheriff should the occasion occur protect
itself personally if an effort made to eject the Judge


H. But supposing that upon examination it might he
that the Court would be satisfied that the respondent
had the right to the Office and that the Court the
tribunal to decide it, under some form of legal peaceful
proceeding, is it not within its authority and its duty to
| punish the wrong doer?


The law affords for every right a remedy. 1t rejects
however, all violence. Force is odous to it, Its ways
ways of peace. 1t stands by the right and in its
own and at its own time, using all precautions to
guard against error, it that justice, ample justice
done. But it is of its oldest maxims by
the experience of ages that man shall judge his
1t undertakes this for him, and will tolerate
his taking the law into his hands. Once in posses
sion rghtfuy may by all the power necessary for the
purpose protect himself from attempt by dis
possess him But whoever heard that a claim merely
possesson could be asserted by physical force Sociev
| could not exist under such a doctrine. The law
the bIudgron would be- snhstituted for the ci4n
nnt anlth he IDIn md frV TByn
would give way to the boweknife and the revolver and
of controversies be settled in dollars
cents but in blood. Rights of this description such


the in question here belongs to- all
the land in the State governments and the general gov
ernmcnt They grow out of election appointment A
of the United States claims his seat shows
his commssion-aestrd by the great of the State
His election disputed OF the right the Senate
judge The Constitution so provides What if in such an
instance, the claimant into the chamber taking
him chosen body yguard, tried in many oray, sezes
forctbe possession and refuses to deliver up? Woud
the Senate have right to eject the intruder and punish
him too for contempt, by Imprisonment? And would
he not also however Gle his title might afterwards be
! made appear he liable to indictment?


To put these questions is to them they carry
within themselves their only possible Take the
of Judge whose election (for here that modern
fnement and improvement upon the wisdom Of our


prevails, eectng judges by the peoe is
ed lie willing to await the slow process which
Constitution provides the Judgment of the House of Dele


gates He is greedy the honor or impatient for the
salary-an influence, with men, much poten-
tal than honor-and armed by commission, imprudent-
| ly issued issued with pirzan motives (for such





his willing cohorts who stood by him at the ballot box
challengers and shoulder-htters and hurls the in
cumhent from his seat and occupies it himself
Can such conduct be tolerated in land of laws?
Is there remedy to redress and punish such
,e? He may be entitled to the Office but his
title like all titles to property of every description, is to
be established legally and peaceaby, under the law and
by the law, and not by physical prowess ruan vio
lence The whole fabric of society would tumble Into
pieces. and man be involved in political chaos any
other principle prevailed hat then done in this
case or is alleged to have been done, and am in
srueted, be proved beyond all doubt, is that Just
that species of force resoed to by this respondent


In that mode he came into possession by that he expelled
the petitioner and kept him. and continues keep him
out of the office, and its records.


This submit, irrespective of all question the


ual title, was, and is contempt of the Court and will


be- during every hour that it is continued contempt


In intendment of law. 1t was at first and is now being
perperaed in the very presence of the Court Posses
of the archives has been forciby whilst the
Court was in session. and almost within its bearnr and
is by force persisted in If this be contemr such
offence is not known to system. And yet. the
power of Court to punish for contemnts is older than
Magma Chara. The of Edward confirmed the
anecedent law. contempt may be either direct


sequental and either to the language of Mr.


tce Blackstone, planly tend an universal dis
regard of their authority Courts empowered to
punish it summarily. Some contempts says the same
author-and what higher authority exists?-may arise il


the face OF the Court as lamongst other) "by breach
the peace, any wful disturbance whatever, ''Dy


any thing, in short, that demonstrates gross want


that regard and respect which, when Courts of Jus


ce deprived of their authority necessary for thu


good order of the kiugdom is entirely lost among the
people" (See Blac. Com, PIP. 2S3. 2S5.)


With this power Act of Assembly interferes, as ia


concerns like the present. The authority


in such case IS as full and as perfect and
good order, in any part of the world Freedom
= with is unlimited. 1t has such few restraints


that its tendency is to 1t is here then NOR


necessary than in other that these


should not be suffered to exhibit themselves UNPUBLISHED
ia Courts, whose authority is so important 10 gOo


order and its recognition by the people so vital to
wholesome exercise God knows there is play enougl


precincts of the temples to whose keepu. the


society its peace and its security alone referred
mainly attained.


d. r-.a


n Ere the vile laws of servitude tegan,
When wild in WOODS the noble savage ran


is not the freedom Of civilized life? There nothing
that pure happiness in such state that, which is
o attained under wellconstitutcd and well governe


society 1t is there that the mind have full sway
infinite IN fQc1dties developed the affections purified
and man fitted for immortality. Theregion have Ca
in, and rcgerentiay honor, looks to such condition


necessary to fit man for the existence promises him


after 1t incucaes Obedience it breaches peace pro
claims good to man. mans duty it commands hil


to love his neigbo as himself The law, the law alone
{ it commends. Violence it denouuces. On the man {


blood, it would seem to iN stain. which
5 contend then that the Court, without examining int
" the title to the office of the repondent, s only


rzed, but bound for its vindcation prcsarvao


of its own authority and the cnmmendaton Of that auth
If y to the approval and respect people to issue PR
y cess of contempt without further delay


IS few words more and shall have done


IS There periods in the history of every community
: such solemn interest that the ordinary feelings Of ma
cease to influence him For these temporary excitemen
r, and mOmentary indignation of place. The cx
e gency nvokes and demands firmly settled decU'
y sentiment The cause which moves him is organic, liz
|


such disaster that he is convinced that nothing hut
Of duty, Sernly performed the calam


y Is not this the present condition of the people Of
tmore? Is violence rather the rule than the e,
C. crption? Is not disorder disregard of laws forgetfu
a Of every social and moral obligation prevalent
may almost be said to breathe in the atmosphere ouu
IN uS Upon the special bringing it into play
not know that the cries the wounded strugg
1t Of the dying and the agony of surviving kindre
IN have filled the air 3? ! forbear inquire into Il
causes of this sad condition of city. The fact is
A. true and notorious, that it pervades the resides
and keeps all in state of excitement and
TO of alarm Heretofore though at times said have
n threatened, this fell spirit never ventured to ste
2, within the threshold Of Courts Justice Where
1r has had sway it has been paiacd if justified
by of education, born to the possession of good
rs acter It's Outrages have been attributed but u
"the free play of freemens spirits which ought
De controlled by any harsh application law nor indiv
y "dual conduct closely inspected"


The Of unheardof violence has been esteemed but
10 the offspring of too ardent and uncaculang love of Ill
ne ery and that account to be pardoned This hOweve
I'd has been long INDUCED and by persons claiming
he respectableso long paiated, if not deended-tha
p like all eXcesse, it has bold past impun
Sc and its progress is consequently onward-onward.
has marched and thus far unrebuked the yer
IN temple Of Justice herself The calm tranquil peacef
order which there should prevail has been invade
IN and disturbed by open, undisguised violence rg
IN claimed, and may be- believed in, agree subm
I'd its vindcation to the law and its chosen ministers 1t
n attempted to anticipate its Judgment by substituting
advance, that more prompt remed (which he who
he human charity at times substitutes for the prOmp.ings
OF moral nature the bludgeon and the pistol The people
II the moral law abiding, religious peope-Ook with
ID dence to its present rebuke Nor do they doubt


power rebuke exists There is the moral
in Courts Judgment in the very stiffness and solemnity
lie which its judgment pronounced, power yet
this community which safely defy all other power