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p |3 T 11 It NO N T IMV 1! * T Ti
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Ofllan of tlm GEORGIA JOURNAL#
R.M dl PPANCKst HY MAID—“A postmaster mny enclose monej
in a letter to tlm publisher of a newspaper, to pay the miIim riptioii nlu
thir | person, anu fr.iiikthe letter, if written by hmuolf
dan P. -if a
tlm deceased, the fall spa
-.linos Ken
POLITICAL
k i* k non
VOL. XXAV
nil Alio representatives, or nil in n district vole for
a member nlloitril 10 llinl district—these anil ma
ny oilier points would depend ii|)on llio legislatures
or might materially alien! tlio appointments.”—
Thai is if the controlling power were nut given to
Congress. For, raid he further “it scorns lo be ns
improper in principle, though it might not be as
inconvenient in practice, lo give llie stale legisln-
tures ibis great authoriiy over the elections of the
people in the general legislature, as it would bo to
give to tlio latter a like power over the elec
tions of llic representatives in ilia State legisla
tures.”
That the same meaning was generally under
stood at tlio time, is abundantly established from wisely and exclusively committed? I apprehend
other sources, lint L wilt not detain ilia House by I that lie would, sir; uml that, too, notwithstanding
refering further thereto; and I only refer lo those ^ his own opinion might he opposed to that of a tna-
opinions now, for the purpose, ns I have said, ol , joriiv of this House upon the question now he-
slum ing what was understood to ho tlio import of I fore it- The judge would he shielded with the
tlio words, “times, places and manner of holding 1 consciousness that, if the constitution were violnt.
elections;” uml that no person appeared at that I ed, it would not ho by his decision ; and so, sir,
time to entertain any opinion contrary lo Mr. Mad I with mo ; if n constitutional law in tho decision of
ison, to wit—that "they were w ords of great lati- j this question lie disregard, it will not ho by my vole
tude,”und that by them, or under their authority, or influence. Hut ns I am sworn to support and
the .Stales would Ituve power to decide “whether ! defend that instrument, 1 do so to day, and to tho
nil the people in ono Stuto should vote for all their [ utmost of my ability ; and il Ifail in inducii g this
MILLEDGEVILLE, TUESDAY, MARCH 12, 1S44.
into courts of tile country upon this ground t Sup
pose, during the session, sumo luw ho passed, and
carried by the votes of lltoso members whoso right
to seats is now midcr the consideration, making
certain nets criminal, and subject to severe punish
ment ; and hereafter, some individual, charged
with a violation of that law, should raise the ques
tion of constitutionality, and insist, by way of de
fence, that it was no law, not having bcon passed
by a Congress constitutionally organized : would
his plea avail him anything ? or would it he enter
tained by any court V Would not every judge he
bound by the settlement of that question by this
House, to whom it has, by the constitution, been
o P M R. STEP II K IV s ,
OF OBottGIA,
On the right of Members to their seals in the House
of Representatives. Delivered in the House oj
Representatives. Feb. 9. 1814.
O.t tho report of the Majority of the Committee
of Elections, which concluded with the following
resolutions for the adoption of tlio House:
“Resolved, That the second section of an act for the
apportionment of Representatives among the several
States, according to tho sixth census, approved June
23t!r, 1842, is not a law made in pursuance of the Con-
st,union of the United States, and valid, operating and
bidding upon tho States.
“Resolved, That all tho members of this House (ex
cepting the contested cases from Virginia, upon which
no opinion is hereby expressed) have been duly elected
in conformity with the constitution and laws, and are
entitled to their seats in this House.”
Mr. STEPHENS, (succeeding Mr. Thompson,
of Mississippi in the Debate) said:
Mr. Speaker: Tlio gentleman from Mississippi
who has just taken his seat, in order to sustain the
position assumed in the first resolution upon your
table, and which is now under consideration, (10
wit; that the second section of the last apportion
ment act is,‘'not a law made in puvsuunce of the
constitution of the United States,”) insists that the
•‘power of districting” was never intended to be
conferred by the 4th section of tho 1st article of
the constitution, cither upon the general govern
ment or ttie State governments; or, in other words
that the power or right of providing for the elec
lion of members to this House bv districts was not
at the time of the formation of the constitution, in
tended or understood to be embraced in the
terms “times, places and manner of holding elec
tions.”
In this, sir, l wholly disagree with him; and, as
tho same view has been presented by others, and
urged with some force, notwithstanding it has not
been taken by the majority of the committee, I
think it proper not to let it pass without notice; and
more especially as, in the opinions of sonic, the
whole merits of the subject-matter now before the
House turns upon this question. For they admit,
if this power was intended to be embraced in the
language used in this clause of the constitution,
Congress has tho same right to its exercise that the
States have. And it seems to mo that the admis
sion is no less frank than it is legitimate; for 1
cannot well perceive how any more power under
the clause can be claimed for the States, than
must bo acknowledged, also, to belong to Con-
gress.
The language of tho clause is in the following
words:
“The times, places, and manner of holding elections
of Senators and Representatives shall be prescribed
in each State by the legislatures thereof; but the
Congress may at any time, by law, make, or alter such
regulations, except as to the place ol choosing Sena
tors.”
And, of course, so far as the language is con
cerned, whatever power over this subject is given
primarily to the States, by this clause, is also given
ultimately to this government. Tho only question
then, upon this point, is to settle tho meaning of
the words, or the extent of their comprehension.—
If wo refer to the practice of the States os a rule
to govern us in coming to a conclusion upon this
point, all will admit that it is decidedly against the
position assumed. Even from the beginning of the
government, most of the Slates have exercised the
power; and “in prescribing the limes, places and
manner of holding their elections” have divided
the territories into districts, and directed their elec
tions to be held accordingly; the legality of which,
upon this floor, has never been disputed. Hut to
avoid tho force of these examples, those who as
sumo the position with tho gentleman from Missis,
sippi, say that the power of districting, which the
States have exorcised, is not derived from the con
stitution, but is one of the inherent rights of sover
eignty in the States, which they possess indepen.
dently of tlio constitution. Now, sir, this seems
to be retreating from one difficulty only to encoun
ter another, and a greater one. For 1 hold that tho
States have no right to representation here, either
inherent or of any other character, except such as
is derived through the constitution, and in such
way, mode, and manner, as was agreed upon in the
constitution: How is it that representation is ap
portioned among the States upon the Federal busi
but because il was so agreed upon, and entered as
one of the terms of the sumo compact which declar
ed that the “limes, places and manner of lioldin
elections” should bo prescribed by the legislatures
subject to the control of Congress? Indeed, this
view is conceded by the innjoiity in their report ;
for they say: “Whatever power the States have
over electii ns they derive from the constitution”—
which is certainly true ; for without the constitu
tion there would have been no Congress, und no
representation.
Hut, to settle the matter whether the power in
question was intended to be embraced in the words
used, I think wc have only to refer to the history of
the times, and see what those who made the consti
tution understood at the time to be the meaning
und extent of the terms employed. 1 ask the at
tention of the House to the remarks of Mr, Madis
on upon this subject, made in the convention, when
this clause was under consideration in that body.
And these i rend, sir, only for the purpose of show,
ing what was then fully understood to be the ex
tent of the power conferred by the words. These
remarks were made (it may he proper for me al
so to add) when the second part of the clause was
under consideration; that is, the propriety of giving
the ultimate control over tlio subject to Congress.
“This view of the question.” (said lie, alter some
previous remarks; 8t?e the Madison Papers, vol. 3
page 1*280 ) “seems to decide that the legislature*
of the stutes ought not to have the uncontrolled
right of regulating the times places, and manner ol
holding elections. These were words of great lali
tude. It was impossible to foresee all the abuse
that might be made of the discretionary power.—
Whether the elections should be by ballot or viva
voce\ whether the electors should assemble at this
place or at that place; should b« divided into dis
iric'.s, or ull meet nt one plucc; should ull vote for
representatives, or whether all in a district should House to agree with me irt opinion upon the ques
vote for a member allotted to such district.” It is tion, I must yield my own to the opinions of tho
true 1 might use the authority of Mr Madison hero : majority oftlioso whose province it is to decide it.
quoted, to show that lie was in favor of tho incor- j Neither nm I unsupported by the ablest authoriiy
poration of the latter part of the clause, which gives i in t lie correctness of my position
the controlling power to Congress, and that lie
went in argument so far as to say, in effect, that it
would be as wrong in principle to leave this sub
Mr. Madison, upon this subject, says :
“lias tho wisest and most conscientious judge ever
scrupled to acquiesce in decisions in which lie has been
colleagues,and subsequently to conform liimsellThereto,
as to authoritative expositions of the law? And is it
not reasonable that the same view of the official oath
juct entirely under the control of the legislatures of i overruled by the mature opinions of thelmajority of his
the Stutes, as it would be to give to the general go-| '
vernment power to control tho elections ol the
• . cy . i . i . , otit rt.'UKuitauit: tuat uie euuie view oi cue uiuuicu uaiu
members ol llic -Male legislatures. Hot ns is not j s ; lul ,j ( j i, e taken by a legislator, acting under tlio con-
my object at present,, which is only to show that J s titut on, which is his guide, as is taken by a judge act-
11 to power of "districting” is not only embraced in I ing under the law, which is his]
tho words used ex vi termini, but was well under- | “There is, in fact, and in common understanding, a
stood to be so intended by those who made the con- | necessity of regarding a course of practice as above
characterized, in the light of a legal rale for interpreting
a law : and Otero is a like necessity of considering it a
a constitutional rule of interpreting it constitution.’' —
Miles’s Register, supplement to ml. 49, p. 28.
This, sir, is the rule by which I am governed
and I have been the more full and explicit in giv
ing it, because some, who me about as little noted
for their sagacity as their integrity, ltavo affected
stitution; and that it is in pursuance of tlio same
that tlio States ltavo ever since exercised the pow.
er. And if this point is satisfactorily established,
as I believe il is, I leave it for gentlemen to decide
whether according to their admission Congtess has
not tho same right to its exercise that the Slates
have?
1 here is Mi. Speaker, another particular nlso, j. | 8UC | g|- eal surprise at what they consider
in which 1 do not agreo with the gentleman from ! . : B ; 1 ,
V 1 1 ,, ”‘T f " I the strange inconsistency ol my position.
Mississippi, o says tin t to e live 00 1 (laving said thus much upon those points, I now
section ol the upporUonmem net to be constitution- , co |0 tho , nui „ u „ s ,^ )n bl , f J lhe lluUse ,
a. ho would not consent, coming as he docs from u , - . • • . r.i i .• <- ,i
■» ‘ , . . ’ ° i it i which is, the pr< prioty of tho adoption of the roso.
Stuto e ectmg m tho same way; anu I believe the 1 • , / , . , , , ..
. " , ° . ,, , ,. , , j luttons upon your table, which declare that the see.
section of the act alluded lo, and now under constd- o
tairily-* in spirit and design, dependent and contingent.—
If the legislatures of the States fail or refuse to act in
the premises, &c., then Ibis conservative power inter
poses, and, upon the principle of self-preservation au
thorizes Congress to do that which the Stale legisla
tures ought to have done.”
Moreover, the report goes on to affirm that “the
history of the constitution, and especially the sec
tion in qne«t1oIT7~Rbt>W8conclusively that these were
the considerations which induced the adoption of
that provision.”
And again, says the report, in maintenance of the
same principle :
“Alter the subject of this provision bad oecn fully and
ably discussed, maturely considered, and unanimously
adopted, the latter clause of the section conferring up
on Congress llic* power to make regulations, or niter
those prescribed by the States, was agreed to, with an
explanation at the time that this was meant to give to
the national legislature the power not only to alter the
provisions of the States, but to make regulations in case
the States should fail or refuse altogether.”
Now, sir, this is the argument , uml so far ns
what is said of the explanation given at tlio tiin»» is
concerned, even that certainly does not warrant
the conclusion that the power conferred upon Con-
gross by the clause was understood,either in spirit
or design, only to ho exorcised in nnsn of the fail
ure or refusal of the .States to do so ; and that tlm
general understanding at tho time does not war
rant such conclusion, I think ubuudautly evident
from tho history of that period. No clause in
the constitution met with warmer opposition
the States; and nothing is clearer than
that it was well nudestood that full power there
by was given to Congress to exercise absolute
and unconditional legislation upon the subject- —
This is apparent from the debates in nil tho States
as fur as they have been preserved ; and seven of
the States ratified the constitution with a proposed
amendment that the power, in this section,
should be so far restricted as to limit its exercise
hv Congress to the contingency stuted. The pro
posed amendment offered by Massachusetts is in
the following words :
“The convention do therefore recommend that tlio
lollowing alterations and provisions be introduced into
tho said constitution : That Congress do not exercise
the power vested in them by tlio fourth section of the
first, article, but in cases where the Siatesshnll neglect
or nfusc to make the regulations therein mentioned, or
shall make regulations suoversive of the rights of the
people to a free and equal representation in Congress
agreeable to the constitution.’ ”
The language of the amendment proposed by
Virginia U in the following words :
NO-24
eminent, each being confined within its own appro
priate sphere of action, Congress cannot constitu
tionally pass any law, which, for its full execution,
vvi.l require the Smes to conform thereto, or perfect
by their legislation.
This view of the subject is the only plausible one
to my mind that has been presented for consider
ing the section in question us inoperative as it now
stands upon the statute book ; and to it 1 ask the
particular attention of tlie* House ; for it is not on-
ly strongly it lied upon hv the inajori'y of the com.
inilleo in their report, hut has been repeatedly urg
ed in the debate with a great deal of spaciousness,
and by no one with more clearness and force, 1 be
lieve, than by my colleague, [Mr. Conn,] who nd.
dressed the House on \estprduy ; and yet, I think
it will boas unable to bear the test of examination
as either of the others. The strength of the nr.
gumeut in this view, you will perceive, rests main
ly upon the assumed principle, that from the nature
of the federuland Stale governments, in our coin-
plicated form, in legislation each is confined to its
own sphere ; and that Congress car not pass a law,
valid in itself, or such ns sliould be regarded effi
cient and operative, wltieh, for its execution, will
require Stuto legislation ; ami that the States arc*
not bound under tl*,' rnn«„lvAioU. to make such
hitioii, in any instance, as will be m u.f«!n v for
der
oration, to bo a constitutional law; und that it
oimht to be considered as operative und valid,, . r n, .
°. , , . ... consequence, that the elections in four of the States
touching the elections of members, \\\ the orgamza- < .. .*.
ond section of tlio apportionment act, before allud-
ed to, is not a valid and operative law ; and, in
tion of litis House. Entertaining these opinions,
1 have been asked how I could consistently retain
my seat as a member of this body, sworn, as l am
to support the constitution. My answer is, that l
which have been held in disregard thereof, urc
nevertheless lawful und valid.
The language of that section is in the following
words :
“That every case when a State is entitled to more
, *.• , t .,. M .i .. i “I hat every case when a State is entitled to more
submit the question to this House, the con ,ull ° / | than one representative, the number to which each
al tvibunal, tor* its decision. This, sir, is a cousti
tutional question which individually concerns me
Stale shall be entitled under thisapportionment shall be
elected by districts, composed of contiguous territory,
but little; but one in which the people of the State ! equal in number to the number of representatives to
l have tire honor in part to represent, as well as the J which each Slate may be entitled— no one district e-
people of all the States, have a deep interest; and ! Acting more than one representative.’
one in the settlement of which the same people have * 1 * ,e object of the section eviden
bject of the section evidently wns to legis.
u vi'dn to bo heard. The people of Georgia, sir.; u P on 1,10 i ,|aces und manner of holding the
have a rbdit to representation here, either by the j elections of members of this Mouse, so far as to re-
rrcneral ticket or district system. A majority of; sl,c ‘‘ elections lobe held by single districts.
Ural people. I believe, agree with me that the dis- j The authority upon which the legislation was
trict system, under existing laws, is the legal und ; ^‘sed, is the power given to Congress in that clause
proper one. And here 1 would respectfully dis- 1 of the constitution alluded to before. And so far
sent from the opinion of one of my colleagues, [M r. | as f° r,n ,s concerned, it is admitted by all, 1 believe,
H.ueU] expressed on a former occasion—that the j hint tin* section in question pnssod strictly in pnr-
neoplc of that Slate were united upon this subject, | suunco of the mode prescribed in the constitution
and that the prevailing opinion of both parties was j for the enactment of laws tliiu is, it passed Hus
in favor of tlie general ticket. 1 think if there is " i «r.
any one particular in which both parties of that
State are more nearly agreed than upon any oth
er. it is tlio district system. At the session before
the last of our legislature, the Democratic party
tvere largely in the majority, and un act was pas
sed districting tlio State, which was vetoed by the
Governor, and the late legislature which was whig
passed another act of similar import, which lias
House, the Senate, and received the sanction of the
President, and is found in the statue book with the
other laws of the land. And of course this House,
should require some strong rensons to justify it in
the passage of a resolution which declares that,
notwithstanding all these sanctions, it is no law, and
of no binding force.
And hero I will remark that I agree with the
gentleman from Alabama, [Mr. Delser,] as to (lie
received the executive sanction, and which is now proper rule which should he adopted in its construe
the law of the Slate. ISut I barely allude to this, I tion i which is tlio same that all courts adopt upon
to put the mutter right before the House. | tllu construction of statutes touching their validity;
The question involved in tlio subject now under \ that is, such construction sliould he given ns will, if
consideration, is ono upon which great difference possible sustain the law. The power of Congress,
of opinion seems to prevail; and it is one neither the subject-matter of tho statue, with all its rela-
f or nm or a majority of tlio people of Georgia, but I Hons, sliould he so considered and construed, that
f 01 i|,i 3 House, to determine. This House, by the the whole may, if if possible, stand , or, as tlio
constitution, is made tho solo “judge of the elections ‘courts say, -ut res magis valeat, quam pcreal."
returns, and qualifications of its members;” and if No* »*»* 1 "“end to insist upon any advantages that
you say that the members elected by general tick- "right he supposed to arise front the latitude of this
euro legally and properly returned, your decision,; rule ; but, 1 mention il barely because^ a contrary
by the constitution, is iiuul and conclusive upon one has been suggested by some,
the subject; and, in that event, a majority of the | I have, Mr. Spoaker, been an attentive listener,
people of Georgia say 1 am to be one of their rep- i during the progress of this debute, and I have, I he-
resentalives; and if you say the law of Congress hove, given no less attention to the arguments of
is valid, and otmht to'he regarded as such, why, the j the gentleman who advocate the adoption of the re-
present delegation will retire, and another will be solutions, than to the report of the committee, and
sent according to tho provisions of the existing law I the reasons winch seem to have led them to the con-
of the Stale, in either event, tlio people, if repre- elusions expressed in the resolutions. And I
sented at all, ought certainly to be represented by I think, upon proper examination mid analysis, they
those of their own choice. will aU be found to rest upon one of three post-
1 have been told by some that my position wns j lions *
e llinl of a suitor at court, who cluims a hearing. ?• 1 hat the section in question is inoperative
like
and at the same time, denies his right. By no
and void, because Congress, by the constitution,
My position is more like that ol the | has no power to legislate upon the subject.
representative of a suitor at court, whentlieiei.no! *• I hat though Congress does possess the pow-
doubt as to the right of recovery, hut some differ- ! or °f regulating “the times, places, and manner of
ance of opinion as to the right way to he pursued
in obtaining it, and which is not to ho settled
by tho suitor or itis representative but by tire
Court.
is a man to be deprived of his rights because lie
tray differ from the court as to the proper form of
action to be brought? Or, area people to he dis
franchised,because they may differ with this House,
holding elections for members of this House, yet
it is limited in its exercise lo tho contingency of
the failure or refusal of the Stutes to do so; which
contingency not having happened, it was improper
ly exercised, und therefore its action is void.
!]. That though Congress does possess the pow.
er, and as absolutely us the States, yet the section
in question is not such a fuil oxorciso of the power
as to the proper and legal mode of election? When I to render it an efficient statue , and that it is so
‘ sworn to support a constitution, sir, which | materially dclcctive in itself as to bo inoperative
n man is
provides for its own amendment, I hold he is ns
much hound to support nu amendment, when made
in pursuance thereof, ns lie wns lo suppoil tho ori-
inn! constitution ; and when ho is sworn to sup
and void as it now stand
Those who lake the first ground agree with the
gentleman from Mississippi who last addressed the
House; and, as I have already answered that view
port r constitution which provides a tribunal for the I will say no more upon it ut this lime; The re
settlement of any class of cases arising under it, | port of the committee, however, and u large majori-
whore differences of opinion may prevail, he isas ly oftlioso who advocate tho resolutions, l believe
much hound lo acquiesce in the decision of such it will he admitted, do not rest their argument up.
tribunal when made, and to the extent made, until on that ground; they rely exclusively upon tlio
reversed, in uny case so arising, as he was bound last two positions, neither of which seems to me to
to he governed by his own opinions in relation to it he any more tenable than the first ; and each of
before. This, sir. is one of the first principles of them 1 will examine in its older,
all societies, and part of the obligation of every j The first position, then, assumed by the commit,
individual implied when he becomes u citizen of tee. is, that the power of Congress over elections of
government, or takes the oath ofallegiance. Else, memheis of litis House, “in prescribing tire limes,
why sliould there he a tribunal to decide suclt i places, and manner," is a conditional of contingent
questions, ifubedienco and acquiescence to the do- : power, or ono only to he exercised upon the coudi-
cision when made, should not bn regarded, in ; tion or contingency of the failure or refusal of tho
every sense of propriety, right and proper, boll) ' Slates to do so; and, as the co itiugency upon which
politically and morally ? i h rests had not happened, its exercise by the last
Sir without this ruin, there could ho no order j Congress was improper and void,
and no "ovornment; but every man would set up I [.Mr. D mg'ass (the author of tho report) Imre in-
his own judgment or a much less safe guide, his tcrrupled, and was understood to deny that the com-
own conscience ns the rule of his own acts ; and • mitten had taken that position.}
the most lawless anarchy would he tlio result. \ 1 think, Mr. Speaker, that i will bo able to allow,
Why, sir, suppose the resolutions upon your ta-| not only to the House, hut to the gentleman him-
bl& he adopted, and tho sitting members from the , self, that I am not mistaken in the position of the
four States elected by general ticket he declared by j report. I have it before mo, atd-from it I read as
a vote of the House lo have been duly elected, and I follows :
vonr legislation proceeds: will the constitutionality “The privilege allowed Congress of altering State
of tho acts passed by this Congress be inquirablc I regulations,or makingnow ones, if not in terms, iscer-
“The Congress shall not alter, or modify, or inter
fere in thetimes, places, or manner of holding elections
for senators and representatives, or either of them ex-
cepl when the legislature of any State shall neglect,
refuse, or be disabled, by invasion or rebellion, to pre
scribe the sam-.” And, at the same time, “enjoined
upon her representatives in Congress to exert all their
influence,and use all reasonable and legal methods, to
obtain a ratification of the foregoing alteration and pro.
vision, in the manner provided by the fifth article of the
constitution.”
North Carolina proposed the following amend
ment :
That Congress shall not alter, modify, or interfere
with the times, places, or manner of holding elections
lor senators and representatives, or either of them, ex
cept when tirelogislatureof any Slate shall neglect,
refuse, or be disabled, by invasion or rebellion, to pre-
scribe the same."
But it is useless to multiply these instances.—
Similar resolutions, as I have before stated, were,
passed by seven of tho States ratifying the con
stitution; which shows conclusively thnt, however
much those States may have been opposed to the
existence of suclt power, yet, nevertheless, it wns
well understood, at tlio time that tho power did ex
ist under lltc constitution as ratified.
Nay. more, sir ; 1 have before mo tho journals
of the House of Representatives of the first Con-
gross, in 1789; and, un page 80, 1 find that the
following amendment to the constitution, which hud
been offered by Mr. Burke, of South Carolina,
was acted, upon, lo wit:
“Congress shall not alter, modify, or interfere in
the times, places, or manner of holding elections of
senators or representatives, except when any State
shall refuse, or neglect, or be unable, by invasion
or rebellion, to make suclt election.” Which was
lost. And among those who recorded their voles
in tho negative, are Nicholas Gilman, Roger Sher
man, and James Madison, who were all members
of the convention that formed tho constitution.—
Sir, can anything be clearer, or better cstablisned,
than that it wns well understood at that day that the
uhsolute and unconditional power of regulating “the
times, places, and manner of holding elections for
this House," either in case of failure or refusal ol
the States, or not, was vested by the constitution in
tho general government? And not only in this; hut
that, in the opinion of the wise men and pure patri
ots that composed the first Congress, it ought to re
main there. And that there was no such under
standing, as stuted by tho majority of the Com
mittee of Electors, that it was lo ho exercised only
in case of failure or refusal on the part of tin
States? That is the limitation to which the State!
before-mentioned wished to restrict it by amend
incut; and that is the limitation to which the pro
posed amendment in the first Congress was intend
ed lo restrict it, which itas never been ratified, leav.
ing tho power as originally incorporated in thee
stitution.
Sir, is mure light wanted upon this subject ? or do
gentlemen, ostritch like, expect, liy hiding tlteii
own eyes, to extinguish the light around front the
vision of others? You may, indeed, enshroud your
self in darkness; but it scents to me that you may
as well attempt to extinguish the light at noon, so
long as yonder sun courses his path in the heavens,
us to envclopu this subject in mystnry or doubt
while the urchieves of your country remain uuob
literuted.
1 come now, to arguments and reasons of tho
who, abandoning the grounds of ilia first and s
coml positions, attempt to fortify themselves unde
the third. They admit that Congress does possess
the power, by the 4th section of the first article of
constitution, to regulate tlie times, places, and man
nor of holding elections for members of this House
far as to require them to be chosen by districts
which, it is also admitted, was the object of the se
ond section of the last apportionment act. They
admit, also, that this power in Congress is not hare
iy an ultimate one, lo be exorcised only in case of
failure or refusal of the States lo exercise it; hat
is att absolute and controlling power, to ne exercis
ed at any time according to discretion. B it they
insist that the section under consideration is not
such an exercise of it as sliould be regarded us law
that it was only an attempt at its exorcise with
out such details as arc necessary at all limes to give
force and efficiency to legislation—that if Congress
hud gone mi and divided the Slates into districts, its
action would have been both constitutional and hind
ing; hut that, as the section cow stands, it is a per
feet nullity within itself, until it shall he perfected
either by the legislatures of the States, or this gov
eminent, in the formation of the districts, dec.; or
in other words, that, as it now stun Is, it is nothing
more than a direction, or a mandamus to the State
to form districts according to a general principle
therein set forth; which they say this government
I has no right lo give. They insist that from the nu-1
turo of tlio Slate governments, and the federal gov-1 t:t.
tho full execution and operation of a law of C
gross. That the laws of Congress, to ho valid,
must not depend upon suclt State legislation, but
must operate proprio vigore,<.r not nt all.
Now, sir, if this assumed principle can In* shown
to he wrong, the whole argument which rests upon
it, as matter of course, will be overthrown ; and
that it is wrong, I think can lie made appear, both
from thejeonslilution itself, and repeated precedents
of legislation in our history. Tlml tlie principle
assumed ns a general position istrtte, I admit ; hut
that it is true in any case w hen there is such n con
current jurisdiction, ov powers of legislation, if you
please, given to tho Stutes und Congress over any
subject, and the controlling power conferred upon
the latter, as in the case now under consideration.
(and there are several such in tho constitution ) I
am disposed to question,
1 will illustrate, sir. By tho constitution, il is
made the duly of Congress, every ten years, from
an enumeration made, to apportion tlie number of
representatives to which each State may In*, enti
tled, according to the federal basis. And all that
Congress does, or has done from the beginning of
tlie government, in the exorcise of 'his power, is
barely lo fix the ratio of representation, und by luw
10 declare tho number of representatives to which
each State is entitled according to the same. Of
course, it becomes the duty of each Stale immedi
ately to prescribe such new regulations as may bo
necessary for conformity to tlie new ratio. For in-
stance, in all those Stutes where the district system
was the existing inode of electing representatives,
11 has been necessary for a reorganization of the
districts by State legislation, in each one of them,
upon eaclt apportionment. By the last apportion
ment several of tho States are entitled to a loss
number of representatives than before. Suppose
•hose States had not recognized their districts in
in conformity with the late apportionment act, and
had sent the same numb r of representatives, und
elected in the same way as before ; would they be
admitted upon the ground that tlie act was a trim-
damns to ltic Stales, and that Congress could pass
no law requiring conformity on the part of the States
in their legislative notion? Or is the second sec
tion of the apportionment net under consideration
any more directory or mandatory to tho Stales
electing by general ticket, titan the first section is
to those electing by districts? All the Stales inclu
ded in the latter class, I believe, have conformed to
the first section, and without the slightest objection,
as far as I have heard.
Why, sir, since tlie organization of tlie govern
ment there have been six acts of apportionment;
and without giving their dates, or detaining the
House by reading them, I will venture to say, that
there has not been one of llic sex which did not re
quire (not in words, hut from Hie necessity of the
ease) u majority of the States, in pursuance of their
constitutional duty, in order to secure a represen.
tation on tills floor, to pass laws recognising their
districts in conformity lo die apportionment of Con-
gress.
I give this ns one instance of the error of the |.o-
ition.
Another is one alluded to by the gentleman
from Vermont the other fay. 1M r. CoLi.AMBit,} re-
luting to the apportionmeutof electors for President
and Vice President ol tlie United Suites. In the
second article of tlie constitution it is provided that
‘each Suite shall nppoiut, in such manner as the
legislature thereof may direct, the number of elec
tors, equal to tlie whole number ol senators and
representatives to which tho Stale may ho entitled
in CongresB.” And in tho fourth section of tho
imo article it is provided that “Congress may do-
termine the time of choosing electors, and the day
on which they shall give llieir votes, which day shall
lie the same throughout the United States.”
And in exercise of me power hereby conferred.
Congress, by aclnpprovcd 1st March, 1792, declar
ed tliut ••electors sliall he appointed in each Suite
for the election of President and Vice President of
the United States, within thirty-four days proceed-
ing lite first Wednesday in December, 1792. and
within thirty-four days proceeding the first Wed.
ttesday in December of every fourth year succeed
ing the last election; which electors sliall he equal
to the number of senators and representu ives to
which tiie several States may by law he entitled, at
ilie time when the President and Vice President
tbus to be chosen should conic into otliee : Provi
ded, always, that, when no apportionment shall
have been made, afier an enumeration, ut the time
of choosing electors, then the number of electors
hull be according to llic existing apportionment ol
senators and representatives.”
This, sir, has been the regulation of Congress un
der which every President of the United Slates I reni
tlie first, I believe, lias been sleeted, and to which
every State in the Union lias eomformed, as it was
in doty hound to do, and without which there Could
have been noeleelion of chief magistrate within the
lime slated.
But again. By tlie lfltlt clause of the 7th section
of the 1st article of tlie Constitution, power is eon-
ierred upon Congress "to provide for organizing,
arming, and disciplining the militia, and for govern-
ing such part of them as may be employed in tile j fish such iaws vvit
service of the United States, reserving In mo Stales
respectively, the appointment of the ofit.'eis, and
the authority of training the militia according to
the disciplined prescribed by Congress."
Now, sir, as a precedent, 1 will refer to the extent
of powor claimed under this clause, in the eeichra-
ted nney hill uf thu administration in 1840,ul'uded
to yosieiday by the get,t,email from Virginia. [Mr.
NevvTuN.*] and which, I believe, was defended hv
many ie.ndmg men upon this floor, who now de
nounce tlio second section of tlio apportionment act
is n mandamus to the States. But 1 will ask the
atteutiun-of tlie House to nu act approved May 8,
1792, entitled—
“An act more effectually to provide for the national
Jcfencc, by establishing a uniform militia throughout
he United State*.”
Tlie third section of that act il ia the following
vords:
“ And be it further enacted, That within one year af.
ter tlie passing of this act, the militia of the repective
Slates shall he arranged into divisions, brigades, regi-
merits, Initiations, and companies, as the legislature of
each State shall direct; and each division, brigade, and
reg meat, shall be numbered at the formation thereof,
and a record made of such numbers in the adjutant gen-
sra’s office in each State. Each division, brigade and
gimeut, shall respectively take rank according to their
■lumbers, reckoning tho first lowest number highest in
•lie rank. That, it tho same be convenient, each brig-
■do shall consist of lour reignicnls; each regiment of
•>f two battalions; each battalion of four companies ;
each company of sixty-four privates. That said militia
-hall be officered by the respective Slates as follows:
I’o eaclt division one major general and two aids-de-
camp with the rank of major; to each brigade ono brig-
id.er general, with one brigade inspector, to serve afeo
as brigade major, with the rank of colonel commandant,
and to each baltallioir one major, and to each company
one captain, one lieutenant, one ciiBign,” &c.
Now sir, this was alluded to also the other day
by the gentleman from Vermont, [Mr. Collameii;]
ami, as n precedent upon the point now under con
sideration. i think is is quite analogous. It was
u law passed in 1792; which, for its full execution,
required action on tlio part of tlio legislatures of the
Stales in laying off and arreusging the divisions, bri.
glides, fyc., and appointing uUicurs according totiie
direction of the net. There was nothing then said
about this act of Congress being a mandamus to the
States, authorized by the constitution, und therefore
inoperative and void, and such ns tho States should
not regard. But every State in the Union immedi
ately conformed thereto ; and the same, I believe,
is the basis of the militia organization of the coun
try to this day.
Nor lined I he answered, ns I have heard sug
gested in conversation, that this measure was adopt-
mI before the people were much awakened to tho
•iiLi'oachmunts of the general government upon the
rights of the States. If there ever lias been a
period in „ur history, when the line tliut divides tlio
powers of the State and federal governments from
itch other was more clearly defined and better un-
loud than ut uny other, il wns about the time
of the passage of this no. It was then that Mr.
Jefferson, tlie acknowledged champion of the rights
of the Stall s, was exercising big greatest vigilance
in guarding his favorite object. It was just before,
that even the incorporation of a bunk was consid.
ered unconstitutional, because, amongst other ob
jections, it was supposed to eucroach upon tho
rights of the States, in interfering with their laws
upon tlie subjects of mortmain, descent, &c.
, And yet no one amongst the most zealous advo-
cjtt.cs of llic rights of tiie Stntes at that day seems
Mohave conceived the idea that the act in relation
to the organization of tlie militiu was in tlie least
degree in violation of those rights, or contained
any unauthorized mandamus to control their legis.
lu ion.
Nor need I he told that precedent is not consti-
t itioiml power; and that because Congress has
heretofore passed unauthorized acts, tha prac
tice should he continued. I do not refer tw- theso
precedents for any such purpose. But ns 1 under
took lo show that the principle upon which one of
the positions assumed by the advocates of the res
olution upon your table vested, was founded in er
ror, 1 cite these examples to show that I nm sus
tained in my view of construction by acts of gov.
er intent, dating back almost to its beginning ; and
tlie constitutionality or validity of which lias never
been questioned. And from these instances and
precedents, 1 respectfully submit whether it docs
nut appear that Congress may, in some cases, aris-
ing under the constitution, puss an act good and va
lid within itself; nod yet otto which, for a full exe
cution, will require conforming legislation on tlio
part of the Stales. To my mind this seems to bo
clear.
The only remaining question is, wliothcr the
second section of tins apportionment act is ooo of
that class and description. That it is, seems a
fair inference from its striking analogy to tho cas.
es just referred to. But, to put tlio matter beyond
doubt, it possible, as it seems to me, l will give sonto
other illustrations, touching the validity of nets of
Congress upon subjects over which concurrent leg
islative power is given to the Stale and federal go-
verniiicnls ; answering, as I proceed, other argu-
meats of the advocates of the resoluiions ; and in
conclusion, show that tlio section in question was
just such un exercise of this power by Congress
us was originally intended by tiie framers of tho
constitution.
Ami first, [ will take tlie case put by the majori
ty of the committee in tlie report, which I appre
hend to be ono of the strongest to illustrate their
position.
“Congress,” say they, possess tlio power under
llic constitution to establish uniform laws on the
subject of bankruptcies througliut tlio, United
Stales.” And further, they -ay, “suppose that
Congress, instead of passing tho late bankrupt law,
had contented itself with a simple declaration, simi
lar lo tlio second section of tho apportionment act,
that all laws upon this subject of bankruptcies
sliould be uniform in cacti Stuto of the Union ;
that persons might he discharged from tlie payment
of their just debts upon their own application,
without the consent of their creditors, upon tho
sui render of all their property, except so much as
court might allow them to retain, not exceeding
three hundred dollars ; and that no man should he
released (’torn Itis obligations under uny law which
did not conform to these abstract principles : would
theso rules be vali I and impose upon the States the
duty of so changing their local legislation as to
eoiilorm to the abstractions established by Con
gress t "If this cannot ire done in case of bank-
ruptcy,” say they, "upon what principle is it that
Congress may direct tho legislative discretion of
tin: Slates in regard to the elections ?” 1 answer,
the cases are nut analogous. Tire subject of bank
ruptcies is given exclusively to Congress by the
constitution. To nmku the coses similar, let us
suppose that the Constitution had declared that “tho
States respectively shull establish iaws on the sub
ject of bankruptcy ; but Congress may, any time,
nuke or ulter tiie same.” And suppose, in dif-
drent States, various rules had been established,
toiiflicling with eaclt oilier ; and Congress, for tho
lurpuso of creating uniformity upon this subject,
,ail i hen established the genera! principle supposed
y the enmniitteo : tlio cases would then be strictly
malogous ; uml I apprehend that no court in the
.Inion, under such circumstances, would permit a
I seln rgo of a bankrupt under any State rogula.
ions made in disregard of the principle thus cstab-
islieJ by Congress.
Or lake the clause uf the constitution which gives
fungi ess the power to establish uniform laws for
he ria'uiulizaiion of foreigners. Suppose, instead
>1 this power being given exclusively to Congress,
it hud la en given primarily to the Stutes to estab-
the proviso that Congress might
at any time, make or alter the same. And supposo
in some of the Stutes, laws Imd been passed re
quiring a residence of ten years on tlie part of any
alien. Imlore lit- could be i sturilized, or permitted
to enjoy the piirili gcs of a citizen ; and in othet
Stuns the period was twenty years ; and in some
of the States noil.tug sliould be required but an
mull before a justice of llic peace to support tlio
coiisteii iun ot the United Suites ; and, under this
sinie nt ilungs, Congress sliould pass a general law
g that two years’ residence sliould be sufli-
”TIk* 39tli pff lion of tlm crL’Ii'nifii miin lii I if Mr. Vnu
Huron, wu* in lhe following wont-: “Thai lhe 1rgi*turr»- ol the
several SUtew, at lhe rnrli*>»>i period of time afn-rthe adoption
of ihn aveletn. enact hlicit law* in may lo* neceaunrv to enml
anti orgnnimoth* tnalitia of liittaevarai ^latea according In ilia
trovuuma couiuincd herein,”—-dice fix. />««*- I8J9,' 10,|Hifi
mnl; Inn tliut, in every instance of naturalization,
ilie priiri'cilings should he hud bcfurO some court ot
record. Are : can uny man doubt that aucb general
law w i a d lie valid, or that any court would hold tlie
lir eu ding had upon the naturalization of any alien,
vulid, which did not conform thereto? If not, no
longer may the “constitution of tlie United States,
uml the laws made in pursuance thereof, be regard
ed ns the supreme Intr of the land,”