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NEWS & PLANTERS’ GAZETTE.
D.. LOTTING, Editor.
No. 29.—NEW SERIES.]
28th Congress.
SPEECH
Os Mr. STEPHENS, of Georgia,
On the Right of Members to their Seats in the
House of Representatives.
In the House of Representatives, Feb
ruary 9, 1844.
On the report of the majority of the Com
mittee of Elections, which concluded with
the following resolutions for the adoption
of the House:
“Resolved , That the second section of an
act for the apportionment of Representa
tives among the several States, according
to the sixth census, approved June 25th,
1542, is not a law made in pursuance of
the constitution of the United States, and
valid, operative, and binding upon the
States.
“ Resolved , That all the members of this
House (excepting the contested cases from
Virginia, upon which no opinion is hereby
expressed) have been duly elected in con-|
formity with the constiution and laws, and
are entitled to their seuts in this House.”
Mr. STEPHENS (succeeding Mr.
THOMSON, of Mississippi, in the debate)
said:
Mr. Speaker: The gentleman from Mis
sissippi who has just taken his seat, in or
der to sustain the position assumed in the
first resolution upon your table, and which
is now under consideration, (to wit: that
the second section of the last apportionment
act is, “not a law made in pursuance of the
constitution of the United States,” insists
that the “power of districting” was never
intended to be conferred by the 4th section
of the Ist article of the constitution, either
upou the general government or the State
governments; or in other words, that the
power or rigjit of providing for the election
of members to this House by districts was
not at the time of the formation of the con
constitution, intended or understood to be
embraced in the terms “times, places, and
manner of holding elections.
In this, sir, I wholly disagree with him;
and, as the same view has been presented
by others, and urged with some force, not
withstanding 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 some, the
merits of the subject-matter now before the
House turns upon this question. For they
admit, if this power was intended to be em
braced in the language used in this clause
of the constitution, Congress has the same
right to its oxercise that the States have.
And it seems to me that the admission is
no less frank than it is legitimate; for I
cannot well perceive how any more power
under the clause can be claimed for the
States, than must be acknowledged, also to
belong to Congress.
The languago of the clause is in the fol
lowing words:
“The times, places and manner of hold
ing elections of senators and representa
tives 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 of
choosing senators.”
And, of course, so far as the language is
concerned, whatever power over this sub
ject is given primarily to the States, by this
clause, is also given ultimately to this
government. The only question, then,
upon this point, is to settle the meaning of
the words or the extent of their comprehen
sion. If we refer to the practice of the
States as a rule to govern us in coming to
a conclusion upon this point, all will ad
mit that it is decidedly against the position
assumed. Even from the beginning of the
government, most of the states have exer
cised the power; and “in prescribing the
times, places, and manner of holding their
elections,” have divided their territories in
to districts, and directed their elections to
be held accordingly; the legality of which,
upon this floor, has never been disputed.
But to avoid the force of these examples,
those whip assume the position with the
gentleman"from Mississippi, say that the
power of districting, which the States have
exercised, is not derived from the constitu
tion, but is one of the inherent rights of sove
reignity in the Slates, which they possess
independently of the constitution. Now,
sir, this seems to me to be retreating from
one difficulty only to encounter another,
and a greater one. For 1 hold that the
States have no right to representation here,
either inherent or of any other character,
except such as is derived through the con
stitution, and in such way, mode and man
ner, as was agreed upon in the constitu
tion. How is it that representation is ap
portioned among the States upon the fede
ral basis, but because it was so agreed up
on, and entered as one of the terms of the
same compact which declared that the
“times, plaoes, and manner of holding elec
tions” should be prescribed by the legisla
tures, subject to the control of Congress?
Indeed, this view is conceded by the ma
jority in their report; for they say: “What
ever power the States have over eleotions
they derive from the constitution” Which
certainly true; for without the constitu
tion there would have been no Congress,
and po representation.
But, to settle the matter whether the
power in question was intended to be em
braced in the words used, I think we have
only to refer to the history of the times, and
eee what those who made the constitution
understood at the time to be the meaning
and extent of the terms employed. I ask
the attention of the House to the remarks
of Mr. Madison upon this subject, made in
the convention, when this clause was under
consideration in that body. And these I
read, sir, only for the purpose of showing
what was then fully understood to be the
extent of the power conferred by the words.
Those remarks were made (it may be prop
er for me also to add) when the second
part of the clause was under consideration;
that is, the propriety ofgiving the ultimate
control over the subject to Congress. “This
view of the question,” (said he, after some
previous remarks; seethe Madison Papers,
vol. 3, page 1280,) “seems to decide that
the legislatuies of the States ought not to
have the uncontrolled right of regulating
the times, places, and manner of holding
elections. These were words of great lati
tude. It was impossible, to foresee all the
abuse that might be made of the discretion
ary power. Whether the elections should
be by ballot or vive voce; whether the elec
tors should assemble at this place or at that
place; should be divided into districts, or all
. meet at one place; should all vote for all
the representatives, or all in a district vote
for a member allotted to that district; these
and many other points would depend upon
the legislatures, or might materially affect
the appointments.” That is, if the con
trolling power were not given to Congress.
For, said he further: “It seems to be as
improper in principle, though it might not
be as inconvenient in practice, to give the
State legislatures this great majority over
the elections of the people in the general
legislature, as it would be to give to the lat
ter a like power over the elections of the
representatives in the Slate legislatures.”
That the same meaning was generally
understood at the time, is abundantly estab
lished from other sources. But 1 will not
detain the house by referring further there
to; and 1 only refer to these opinions now
for the purpose as I have said, of showing
what was understood to be the import of
the words, “times, places, and manner of
holding elections;” and that no person ap
peared at that time to entertain any
opinion contrary to Mr. Madison, to
wit; that ‘they were words ofgreat latitude;’
and that by them, or under their authority,
the States would have power to decide
“whether all the people in one State
should vote for all their representatives, or
whether all in a district should vote for a
member allotted to such district.” It is
true, I might use the authority of Mr. Mad
ison here quoted to show that he was in
favor of the incorporation of the latter part
of the clause, which gives the controlling
power to Congress, and that he went in ar
gument so far as to sav, in effect, that it
would be as wrong in principle to leave this
subject entirely under the control of the le
gislatures of the States, as it would be to
give to the general government power to
control the elections of the members of the
State legislatures. But this is not my ob
ject at present, which is only to show that
the power of “districting” is not only em
braced in the words used ex vi termini, but
was well understood to be so intended by
those who made tho constitution; and that it
is in pursuance of the same that the Slates
have ever since exercised the power. And
if this point is satisfactorily established, as
[believe it is, I leave it for gentlemen to
decide whether, according to their admis
sion, Congress has not the same right to its
exercise that the States have?
There is, Mr. Speaker, another particu
lar also, in which Ido not agree with the
gentleman from Mississippi. He says that
if he believed the second section of the ap
portionment act to be constitional, he would
not consent coming as he does from a State
electing by general ticket, to hold his seat
in this House. Now sir, I come from a
State electing in the same way; and I be
lieve the section of the act alluded to, and
now under consideration, to be a constitu
tional law; and that it ought to be consider
ed as operative and valid, touching the e
lections of members, in the organization of
this House. Entertaining these opinions,
I have been asked how I could consistent
ly retain my seat as a member of this body,
sworn as I am, to support the constitution.
My answer is, that I submit the question to
this House, the constitutional tribunal for
its decision. This, sir, is a constitutional j
question which individually concerns me
but little; but one in which the people of
the State I have the honor in part to repre
sent, as well as the people of all the States,
have a deep interest; and one in the settle
ment of which the same people have a right
to be heard. The people of Georgia, sir,
have a right to representation here, either
by the general-ticket or district system. A
majority of that people, I believe, agree
with me that the district system, under ex
isting laws is the legal and proper one.
And here I would respectfully dissent from
the opinion of one of my colleagues, (Mr.
BLACK,) expressed on a former occasion
—that the people of that State were united
upon this subject, and that the prevailing
opinion of both parties was in favor of the
general ticket. I think if there is any one
particular in which both parties of that
State are more nearly agreed than upon
any other it is the district system. At the
session before the last of our legislature the
democratic party were largely in the ma
jority, and an act was passed districting the
State, which was vetoed by the governor;
and the late legislature which was whig,
passed another jtet qfsimilar import, which
has received the executive sanction, and
which is now the law of the State. But I
barely allude to this to put the matter right
before the House.
PUBLISHED EVERY THURSDAY MORNING.
WASHINGTON, (WILKES COUNTY, GA.,) MARCH 14, 1844.
The question involved in the subject now
under consideration, is one upon which
great difference of opinion seems to prevail;
and it is one neither for me or a majority of
the people of Georgia, but for this House to
determine. Ttiis House by the constitu
tion, is made tho sole “judge of the elec
tions, returns, and qualifications of its mem
bers;” and if you say that the members e
lected by general ticket are legally and
properly returned, your decision, by the
constitution, is final and conclusive upon
the subject; and, in that event, a majority
of the people of Georgia, say I am to be
one of their representatatives; and if you
say the law of Congress is valid, and ought
to be regarded as such, why, the present
delegation will retire, and another will be
sent according to the provision of the exist
ing law of the State. In either event, the
people, if represented at all, ought certain
ly to be represented by those of their own
choice.
I have been told by some that my posi.
tion was like that of a suitor at court, who
claims a hearing, and, at the same time de
nies his right. By no means, sir. My
position is more like that of the representa
tive of a suitor at court, when there is no
doubt as to the right of recovery, but some
difference of opinion as to the right way to
be pursued in obtaining it, and which is
not to be settled by the suitor or his repre
sentative, but by the court.
Is a man to be deprived of bis rights be
cause he may differ from the court as to the
proper form of action to be brought? Or,
are a people to be disfranchised, because
they may differ with this House, as to the
proper and legal mode ofelection ? When
a man is sworn to support a constitution,
sir, which provides for its own amendment,
I hold he is as much bound to support an
amendment, when made in pursuance there
of, as he was to support the original consti
tution ; and when he is sworn to support a
constitution which provides a tribunal for j
the settlement of any class of cases arising j
under it, where differences of opinion may j
prevail, he is as much bound to acquiesce
in the decision of such tribunal when made,
and to the extent made, until reversed in
any case so arising, as he was bound to be
governed by his own opinions in relation to
it before. This, sir, is one of the first prin
ciples of all societies, and part of the obli
gation of every individual implied when lie
becomes a citizen of government, or takes
the oath of allegiance. Else, why should
there be a tribunal to decide such questions,
if obedience and acquiescence to the deci
sion, when made, should not be regarded,
in every sense of propriety, right and pro
per, both politically and morally?
Sir, without this rule, there could be no
order and no government; but every man
would set up his own judgement—or a
much less safe guide, his own conscience—
as the rule of his own acts; and the most
lawless anarchy would be the result.
Why, sir, suppose the resolutions upon
your table be adopted, and the sitting mem
bers from the four States elected by gener
al ticket be declared by a vote of the House
to have been duly elected, and your legis
lation proceeds: will the constitutionality
of the act passed bv this Congress be inqui
rable into the courts of the country upon
this ground ? Suppose, during the session,
some law be passed, and carried by the
votes of those members whose right to seats
is now under consideration, making certain
acts criminal, and subject to severe punish
ment ; and hereafter, some individual,
charged with a violation ofthat law, should
raise the questiou of constitutionality, and
insist, by way of defence, that it was no
law, not having been passed by a Congress
constitutionally organized: would his p'.ea
avail him anything? or would it be enter
tained by any court? Would not every
judge be bound by the settlement of that
question by this House, to whom it has, by
the constitution, been wisely and exclu
sively committed ? I apprehend that he
would, sir ; arid that, too, notwithstanding
his own opinion might be opposed to that
of a majority of this House upon the ques
tion now before it. The judge would be
shielded with the consciousness that, if the
constitution were violated, it would not be
by his decision ; and so, sir, with me ; if a
constitutional law in the decision of this
question be disregarded, it will not be by
my vote or influence. But lam sworn to
support and defend that instrument, Ido so
to-day, and to the utmost of my ability ; and
if I fail in inducing this House to agree
with me in opinion upon the question, I
must yield my own to the opinions of the
majority of those whose province it is to de
cide it. Neither am I unsupported by the
ablest authority in the correctness of my
position.
Mr. Madison, upon this subject, says:
“Has the wisest and most conscientious
judge ever scrupled to acquiesce in deci
sions in which he has been overruled by the
mature opinions of the majority of his col
leagues, and subsequently to conform him
self thereto, as to authoritative expositions
of the law ? And is it not reasonable that
the same view of the official oath should be
taken by a legislator, acting under the con
stitution, which is his guide, as is taken by
a judge acting under the law, which is his?
“There is, in fact, and in common under
standing, a necessity of regarding a course
of practice as above characterized, in the
light of a legal rule for interpreting a law;
and there is a like necessity of considering
it a constitutional rule of interpreting a con
stitution.”—Nile's Register, supplement to
vol. 43, p. 28.
This, sir, is the rule by which I am gov-
erned ; and I have been the more full and
explicit in giving it, because some, who are
about as little, noted for their sagacity as
their integrity, have affected to feel such
great surprise at what they consider the
strange inconsistency of my position.
Having said thus much upon these points,
I now come, sir, to the main question be
fore the House, whicli is, the propriety of
the adoption of the resolutions upon your
table, which declare that the second section
of the apportionment act, before alluded to,
is not a valid and operative law; and, in
consequence, that the elections in four of
the States which have been held in disre
gard thereof, are nevertheless lawful and
valid.
The language of that section is in the
following words:
“That in every case when a State is en.
titled to more titan one representative, the
number to which each State shall be enti
tled under this apportionment shall be elec
ted by districts, composed of contiguous ter
ritory, equal in number to the number of
representatives to which each State may be
entitled—no one district electing more than
one representative.”
The object of the section evidently was
to legislate upon the places and manner of
holding the elections of members of this
House, so far as to require such elections ;
to be held by single districts.
The authority upon which the legisla- j
tion was based, is the power given to Con- :
gress in that clause of the constitution al- j
luded to before. And so far as form is con
cerned, it is admitted by all, 1 believe, that
the section in question passed strictly in
pursuance of the mode prescribed in the
constitution for the enactment of laws ; that
is, it passed this House, the Senate, and re
ceived the sanction of the President, and is
found in the statute-book with the other
laws of the land. And of course this House
should require some strong reasons to jus
tify it in the passage of a resolution which
declares that, notwithstanding all these
sanctions, it is no law, and of no binding
force.
And here I will remark that I agree with
the gentleman from Alabama, [Mr. Belser,]
as to the proper rule which should be adop
ted in its construction ; which is the same
that all courts adopt upon the construction
of statutes touching their validity ; that is,
such construction should be given as will,
if possible, sustain the law. The power of
Congress, the subject-matter of the statute,
with all its relations, should be so consid
ered and construed, that the whole may, if
possible, stand ; or, as the courts say, “ut
res magis valeat, auam pereat.” Not that
I intend to insist upon any advantages that
might be supposed to arise from the lati
tude of this rule ; but I mention it barely
because a contrary one has been suggested
by some.
I have, Mr. Speaker, been an attentive
listener during the progress of this debate,
and I have, 1 believe, given no less atten
tion to the arguments of the gentleman who
advocate tho adoption of the resolutions,
than to the report of the committee, and the
reasons which seem to have led them to the
conclusions expressed in the resolutions.
And I think, upon proper examination and
analysis, they will all be found to rest upon
one of these positions:
1. That the section in question is inope
rative and void, because Congress, by the
constitution, has no power to legislate upon
the subject.
2. That though Congress does possess the
power of regulating “the times, places, and
manner of holding elections for members
of this House, yet it is limited ir. its exer
cise to the contingency of the failure or re
fusal of the States to do so ; which contin
gency not having happened, it was improp
erly exercised, and therefore its action is
void.
3. That though Congress does possess
the power, and as absolutely as (lie States,
yet the section in question is not such a full
exercise of the power as to render it an ef
ficient statute ; and that it is so materially
defective in itself as to be inoperative and
void as it now stands.
Those who take the first ground agree
with the gentleman from Mississippi who
last addressed the House ; and, as I have
already answered that view, I will say no
more upon it at this time. The report of
the committee, however, and a large ma
jority of those who advocate the resolutions,
I believe it will be admitted, do not rest
their argument upon that ground ; they re
ly exclusively upon the last two positions,
neither of which seems to me to be any
more tenable than the first; and each of
them I will examine in its order.
The first position, then, assumed by the
committee, is, that the power of Congress
over elections of members of this Flouse,
“in prescribing the times, places, and man
ner,” is a conditional or contingent power,
or one only to be exercised upon the condi
tion or contingency of the failure or refusal
of the States to do so ; and, as the contin
gency upon which it rests had not happened,
its exercise by the last Congress was im
proper and void.
[Mr. Douglass (the author of the report)
here interrupted, and was understood to de
ny that the committee had taken that posi
tion.]
I think, Mr. Speaker, that I will be able
to show, not only to the House, but to the
gentleman himself, that I am not mistaken
in the position of the report. I have it be
fore me, and from it I read as follows:
“The privilege allowed Congress of al
tering State regulations, or making new
ones, if not in terms, is certainly in spirit
and design dependent and contingent. If the
legislatures of the States fail or refuse to
act in the premises, &c., then this conser
vative power interposes, and, upou the prin
ciple of 6elfpreservation, authorizes Con
gress to do that which the State legislatures
ought to have done.”
Moreover, the report goes on to affirm
that “the history of the constitution, and
especially the section in question, shows
conclusively that these were the conside
rations which induced the adoption of that
provision.”
And again, says the report, in mainten
ance of the same principle:
“After the subject of this provision had
been fully and ably discussed, maturely
considered, and unanimously adopted, the
latter clause of the section conferring upon
Congress the power to make regulations,
or alter 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 regu
lations in case the States should fail, or re
fuse altogether.”
Now, sir, this is the argument; and so
tar as what is said of the explanation given
at the time is concerned, even that certain
ly does not warrent the conclusion that the
power conferred upon Congress by the
clause was understood, either in spirit or
design, only to he exercised in case of the
failure or refusal of the States to do so ; and
that the general understanding at the time
does not warrent such conclusion, I think
abundantly evident from the history ofthat
period. No clause in tfie constitution met
with warmer opposition in the States ; and
nothing is clearer than that it was well un
derstood that full power thereby was given
to Congress to exercise absolute and uncon
ditional legislation upon the subject. This
is apparent from the debates in all the
States, as far as they have been preserved;
and seven of the States ratified the consti
tution with a proposed amendment that the
power, in this section, should be so far res
tricted as to limit its exercise by Congress
to the contingency stated. The proposed
amendment offered by Massachusetts is in
the following words:
“The convention do therefore recom
mend that the following alterations and pro
visions he introduced into the said constitu
tion: ‘That Congress do not exercise the
power vested in them by the fourth section
of the first article, but in cases where the
States shall neglect or refuse to make the
regulations therein mentioned, or shall
make regulations subversive of the rights
of the people to a free and equal represen
tation in Congress agreeable to the consti
tution.’”
The language of the amendment pro
posed by Virginia is in the following words:
“The Congress shall not alter, or modify,
or interfere in the times, places, or manner
of holding elections for senators and repre
sentatives, or either of them, except when
the legislature of any Slate shall neglect,
refuse, or he disabled, by invasion or rebel
lion to prescribe the same.” And, at the
same time, “enjoined upon her representa
tives in Congress to exert all their influence,
and use all reasonable and legal methods,
to obtain a ratification of the foregoing al
teration and provision, in the manner pro
vided by the fifth article of the constitu
tion.”
North Carolina proposed the following
amendment:
“That Congress shall not alter, modify,
or interfere with the times, places, or man
ner of holding elections for senators and re
presentatives, or either of them, except
when the legislature of any State shall neg
lect, refuse, or be disabled, by invasion or
rebellion, to prescribe the same.”
But it is useless to multiply these instan
ces. Similar resolutions, as i have before
stated, were passed by seven of the States
ratifying the constitution ; which shows
conclusively that, however much those
States may have been opposed to the exist
ence of such power, yet, nevertheless, it
was well understood, at the time, that the
power did exist under the constitution as
ratified.
Nay, more, sir ; I have before me tire
journals of the House of Representatives of
the first Congress, in 1789; and, on page
86,1 find that the following amendment to
the constitution, which had been offered ly
Mr. Burke, of South Carolina, was acted
upon, to wit:
“Congress shall not alter, modify, or in
terfere in the times, places, or manner of
holding elections of senators or representa
tives, except when any State shall refuse,
or neglect, or be unable, by invasion or re
bellion, to make such election.” Which
was lost. And among those who recorded
their votes in the negative, are Nicholas
Gilman, Roger Sherman, and James Madi
son, who were all members of the conven
tion that formed the constitution. Sir, can
anything he clearer, or better established,
than that it was well understood at that day
that the absolute and unconditional power
of regulating “the times, places, and man
ner of holding elections for this House,”
either in case of the failure or refusal of the
States, or not, was vested by the constitu
tion in the general government ? And not
only this; but that, in the opinion of the
wise men and pure patriots that composed
the first Congress, it ought to remain there.
And that there was no such understanding,
as stated by the majority of the Committee
of Election, that ir was to be exercised only
in case of failure or refusal on the part of
the States ? That is the limitation to which
the State before-mentioned wished to re-
M. J. KAPPEL, Printer.
strict it by amendment; and that is the lim
itation to which the proposed amendment
in the first Congress was intended to res
trict it, which has never been ratified, lea
ving the power as originally incorporated
in the constitution.
Sir, is more light wanted upon this sub
ject ? or do gentlemen, ostritch like, expect,
by hiding their own eyes, to extinguish the
light around from the vision of others ? You
may, indeed, enshroud yourself in dark
ness ; but it seems 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, as to envelope this subject in
mystery or doubt, while the archives of
your country remain unobliteratcd.
I come now, sir, to the arguments and
reasons of those who, abandoning the
grounds of the first and second positions,
attempt to fortify themselves under the
third. They admit that Congress does pos
sess the power, by the 4th section of the
first article of the constitution, to regulate
the times, places, and manner of holding
elections for members of this House, so far
as to require them to he chosen by districts;
which, it is also admitted, was the object
of the second section of the last apportion
ment act. They admit, also, that this pow
er in Congress is not barely an ultimate one,
to he exercised only in case of a failure or
refusal of the States to exercise it; hut that
it is au absolute and controlling power, to
he exercised at any time according to dis
cretion. But they insist that the section
under consideration is not such an exercise
of it as should he regarded as law—that it
was only an attempt at its exercise without
such details as are necessary at all times to
give force and efficiency to legislation—
that if Congress had gone on and divided
the State into districts, its action would
have been both constitutional and binding;
hut that, as the section now stands, it is a
perfect nullity within itself: until it should
he perfected either by the legislatures of
the States, or this government, in the for
mation of tho districts, &c.; or, in other
words, that, as it now stands, it is nothing
more than a direction, or a mandamus to
the States, to form districts according to a
general principle therein set forth ; which
they say this government has no right to
give. They insist that from the nature of
the State governments, and the federal gov
ernment, each being confined within its own
appropriate sphere ofaction, Congress can
not constitutionally pass any law, which,
for its full execution, will require the States
to conform thereto, or perfect by their le
gislation.
This view of the subject is the only plau
sible one to my mind that has been presen
ted for considering the section in question
as inoperative as it now stands upon the
statute book ; and to it I ask the particular
attention of the House ; for it is not only
strongly relied upon by the majority of the
committee in their report, hut has been re
peatedly urged in the debate with a great
deal of speciousness, and hv no one with
more clearness and force, 1 believe, than
by my colleague, [Mr. Cobh,] who addres
sed the House on yesterday ; and yet, I
think it will be as unable to hear the test
of examination as either oftiie others. The
strength of the argument in this view, you
will perceive, rests mainly upon the as
sumed principle, that, from the nature of
the federal and State governments, in our
complicated form, in legislation each is
confined to its own sphere ; and that Con
gress cannot pass a law, valid in itself, or
such as should be regarded efficient and
operative, which, for its execution, will re
quire State legislation ; and that the States
are not hound, under the constitution, to
make such legislation, in any instance, as
will be necessary for the full execution and
operation of the law of Congress. That
the laws of Congress, to be valid, must not
depend upon such State legislation, but
must operate proprio vigore, or not at all.
Now, sir, if this assumed principle can
be shown to be wrong, the whole argument
which rests upon it, as matter of course,
will be overthrown ; and that it is wrong,
I think can he made appear, both from the
constitution itself, and repeated precedents
oflegislation in our history. That the prin
ciple assumed as a general proposition is
true, I admit; but that it is true in a case
wheu there is such concurrent jurisdiction,
or powers oflegislation, if you please, giv
en to the States and Congress over any sub
ject, and the controlling power conferred
upon the latter, as in the case now under
consideration, (and there efe several such
in the constitution,) I am disposed to ques
tion.
I will illustrate, sir. By the constitution,
it is made the duty of Congress, every ten
years, from an enumeration made, to appor
tion the number of representatives to which
each State may be entitled, according to
the federal basis. And all that Congress
does, or has done from the beginning of the
government, in the exercise of this power,
is barely to fix the ratio of representation,
and by law to declare the number of repre
sentatives to which each State is entitled
according to the same. Os course, it be
comes the duty of each State immediately
to prescribe such new regulations as may
be necessary for the conformity to the new
ratio. For instance: in all those States
where the district system was the existing
mode of electing representatives, it has been
necessary for a reorganization of the dis
tricts by State legislation, in each one of
them, upon each apportionment- By the lest
apportionment several of the States are e£r
titled to a less number of representatives
[Concluded on the last page.]
[V OLUME XXIX.