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The power of State legislatio must, therefore, antecedently exist, or else the congressional power could not be subjoined thereto. The State power must first take position before the Congress power can be placed further—beyond it. If, then, it has been clearly established that the duty enjoined on the legislature of each is to be performed primarily, ontocedently, and independently; and that the power of Congress is secondary in character, and ultimate in exercise, it would seem to follow conclusively that Congress cannot, by way of anticipation, and in advance, prescribe a preliminary rule to ail the States—to each, or to any of them. Congress must come after the States, and supply omissions or vacancies—where the States have failed, refused, or been prevented—by making such regulations as ought to have been prescribed in the State by the legislature thereof. Or where the regulations have already been prescribed, they may be altered by Congress.
Mr. D. would invite the attention of the House to the third volume of the Madison Papers, page i282; not for the purpose of citing the speech or opinion of any one, but on account of the tact there recorded.
underwent mere verbal alterations and change of
phraseology, without altering or changing, or intending so to do, its meaning and object—only in the particular of exempting the places of choosing senators from all congressional interference. Before the constitution was finally voted by the convention, signed by the members, and recommended to the States for ratification, it was referred to a committee of “style and arrangement.” in this committee, its parts were arranged, and expressed in appropriate style and language. This was the duty of the conmittee, and they had no authority to change the meaning or purport of the instrument, it was principally performed by Governeur. Morris, deemed peculiarly competent from his literary taste and scholarship. It may be contended, however, (said Mr. D.,) that tecause the acts of the legislatures may be superwised and altered by Congress, their action is not, therefore, independent and exempt from all obligation to conform to the rules prescribed by the supervising power. A moment's reflection will expose the fallacy of such a deduction. The power of one body to supervise an act, and alter it, after it has been completed by another having original jurisdiction over the subject, embraces no authority to control the conduct of the body primarily enacting. The power to supervise an enactment, and to alter its
is totally distinct from the right t prescribe a rule, and regulate the mode of procedure, or dictate the substance to be inserted. The action of a body may be independent, although its acts may be subject to revijal and alteration by another tribunal. The exertion of a power may be free and uncontrolled, and yet the results may be changed or modified by some other department. 'i'he i'resident may nominate for office, but can only appoint by and with the advice and consent of the Senate. The power of mooinating may be independentsy exercised by the exee. utive without consultation with the Senate. The
power of the Senate to withhold its advice and con
sent cannot affect the right to nominate---if cari only arrest the appointment after the nomination. has been made. The right of the Senate to control an appointment by giving or refusing its advice and consent, includes no right to prescribe the mode of nomination, or dictate the individual to be goraimated. The acts of Congress are to be presented to the President for his approvai, which he may qual. ifiedly arrest, and forbid to become law, §uch qualified interposition and partial negative, secured to the President by the constitution, carry no right to that high functionary to prescribe w rule of legislation to Congress, or dictate the provisions to b3, contained in their enactments. Even the duty enjoined on the President, from time to time, to give to Congress information of the state of the Union, and recommend to their consideration such meas. ures as he shall judge necessary and expedient, does not, in the least, affect their legislative independence. All legislative powers granted in the constitution are vested in Congress to be exercised. independently. An honorable gentleman from Ohio |Mr. WiNoron] maintained that it was not unusual in legislation to prescribe general rules—to declare general principles, preparatory to more detailed enactments; and that their power to pass laws it would seem involved the right on the part of the legislature to lay down, in advance, mandatory declarations to guide and control future proceedings. An instance is supposed of a general declaratory statute of some rule or, direction as to the course of descents, without a detail of the minutia, necessary to fill up and perfect the systen in conformity with the declared rule. In the Supposed case, the subsequent legislation necessory to
&ry complete the intention of the legislature is to flow from the same source from which the rule has eroanated, and does not depend upon the auxiliary enactments of a different body possessing only secondary and ultimate authority, independent in its sphere of action, and having the discretionary power of forbearing to act. It is not necessary to controvert. the position that a legislature, having ample and exclusive jurisdiction over the subject-matter, may prescribe general rules and declare leading principles to govern the details of their own enactments. But surely such a case could have no application to the point now in issue. Can any precedent be produced, where one body having the right to make, if mone be previously made, or to alter, if necessary, such regulations as have been made, has claimed and exerted the right to prescribe a rule or command to another body having the independent and unqualified power of originating them? The search for a precedent will be fruitless. . •.: He (Mr. D.) said that, as it had been shown that the State legislatures had the primary and antecedent power to prescribe the times, places, and maaner of holding elections; that they were, in the exer
being unauthorized by the constitution, the State
legislatures are under no obligation to observe it,
zation of the House, unless elected from single dise
validity of the enactment. My purpose (said he)
was to remove all perplexity and embarrassment in approaching the real, vital, substantive design of the provision—that the representatives of the Sev
eral States shall be elected by districts. Shall is of the future tense; and being used in the third person, may convey a threat or command, and imply compulsion. Although not expressed, it is well understood; and in this sense has been argued, that this imperative language commanding a future act—the division of the States into single districts of comtiguous territory—is addressed to the legislatures of the several States by Congress, which latter body thereby implies its power to enforce obedience. Now let the validity of this command be tested. If the right to issue the mandate existed, the power to enforce it—the command of the necessary and proper mans, would be unquestionable. If there be no practicable mode of compelling obedience; if there be no compulsatory process which may attend or follow this measure, then it becomes a vain and nugatory thing, wherefore there could have been no rightful authority to speak in the language of command. * -The law speaks to command; it does not condescend to parley or to persuade. Where is the sanction? where is the penalty of disobedience? What is the mode; where are the means of securing obedience and compliance? Can a State legislature, as a body, or the members individually who compose it, for refusing to execute the mandate, be placed in durance as recusants? Can they be made liable to punishment for the crime of contumacy? None have had the boldness to maintain such doctrine. Viewed in the light of a command directed to the State legislatures, directing the adoption of the district system, and prohibiting the general-ticket system, it is the veriest, brutum fulmen; absolutely a flat mullity. It being impotent as a command, resting on no basis of constitutional authority, not practicably susceptive of enforcement—the total disregard of it, the entire want of observance, will not impair or mullify the validity of State laws. If such laws would be constitutional and valid, in the absence of this second section, then they are constitutional and valid notwithstanding the space it occupies in the volume of congressional statutes; because a nullity can neither control their interpretation, or impede their operation. In the absence of all interference, or attempted exercise of control by Congress, the right of the States to provide for the election of all its representatives by a general vote of the electors has never been disputed. The general-ticket system, therefore, of the four States, is good and sufficient, and must so remain, not to be set aside for aught that Congress has yet done. Thus far (said Mr. D.) he had conducted his argument upon the admission that the expression, “manner of holding elections,” included, in its meaning, the mode of choosing , all the repre
sentatives for the State at large by the general
voice of the electors, and the mode of choosing, by districts, representatives severally for the districts by the qualified voters within the same. With this admission, still, for the sake of argument only, it may be demonstrated further, that this second section was inert, without effective operation in the very States whose legislatures cherished a compliant temper, and apparently yielded obedience to this presumptuous dictation. It has been shown that this Section, as a rule prescribed, is unauthorized and void; as a transfer of the details of legislation by Congress to State legislatures, is without authority in the constitution, and mugatory; as a command, cannot be enforced, rests on no proper authority, and is wain and powerless. The States might, neverthe
less, by their legislatures, be divided into
of contiguous territory, equal in number to the number of representatives to be elected. This division into districts might be prompted by a spirit of submission to federal authority. The formal enactment might profess, on its face, to be made in pursuance and under the authority of the act of Congress; and yet, in point of fact, in reference to the very legislao tion professing crouching obedience to the act, the act would only be a shadow or pretext, and will not have exerted any substantial power or authority. It is indisputable, that without the section under discussion, the States might, voluntarily, rightfully adopt the district system. If the district system would be valid without this section, then it does not, cannot, in the nature of things, owe its validity to the existence or authority of it, or of any such provision, The district system must be traced up to a higher and more salubrious source. It is the exercise of
an original, primary power, resident, in the States. In those twenty-two States to which reference has been made in debate, with a confident air of triumph, as having sanctioned and acknowledged the authority of the act, it has been void and inoperative from its first promulgation. Their legislation rests not upon. its command or authority for its origin, its efficiesle cy, or its continuance in full force and effect. Those twenty-two States, or nearly all of them, had adopted the district system before the passage of this act of Congress, in virtue of their antecedent right to legislate independent of Congress. w [Here Mr. BARNARD, of New York, inquired if that State was included in the statement, and denied that New York had adopted the system before the passage of the act. + Mr. DROM gooBE. Does the gentleman deny that the district system had been adopted before the passage of the act of Congress? ... . * . . . . Mr. BARNARp. The single district system had not been adopted before; for some of the districts were double.] Mr. D. continued, he would have no controversy with the gentleman about the districts being single of double. He reiterated that New York had introduced the district system before the act of Congress was passed, and had continued it, as other States had done, of her own will, in virtue of her right to legislate on the subject, independent of any intimation, direction, or command of Congress. The system of elections, by districts, in the several States, rests upon no such unsubstantial basis as an idle mandate of Congress. This position becomes still more evident and conclusive from the fact, that if the fict of Congress was unconditionally repealed, the district system would still remain, in the several States, in full operation, deriving its obligatory character from their rightful power to enact it. Blot out this second section—expunge it from the statute-book, -and the district system, as now in force in twenty-two States of this Union, would remain undisturbed, unimpaired, quietly, peacefully, but successfully performing its functions. The second section cannot be the true, real basis of this plan of electing, from single districts; it cannot be the rightful authority which sustains the State legislation; for, if so, the repeal of it would be a removal of the foundation, and the whole superstructure would necessarily topple. This second section has gone along with the apportionment of representatives, made under the sixth census; it has seen twenty-two States laid off into districts by their respective legislatures, and would actually persuade us that its potency had produced all these kegislative taboosts. The fly on the chariot-wheel vainly persuaded itself that it exercised an important agency in raising the dust; but remove the self-conceited insect, and there would be mo diminution of the effect produced by the tramping of the steeds and the revolution of the wheels. So, remove this officious, intermeddling companion of the apportionment act, and it is at once perceived that, in reality, it has had no substantial efficacy in the business of State legislation, and that its pretension to power and authority was an empty show. Admit, (said Mr. D.,) again, merely for the sake of argument, that the “manner of holding elections”
applies to the district, and to the general-ticket sys
term; and that Congress may at any time, by law, atter, or change the latter into the former; yet, the enactment does not effect, does not make the alteration; and sailing to do so, leaves the primary regulations of the States untouched and in unimpaired vigor. - - . . Suppose that the act in question might be rightfully made, and that, dispensing with a rigid construction of phrase, Congress, in declaring that the representatives “shall be elected” by districts, intended only a general direction, induced by the confident expectation that the States would willingly adopt it, without questioning the authority by which it was made: in this aspect of the case, the proviision still looks to the future, and becomes contingent, dependent, and conditional. As the requisite subseduemi legislation is to proceed from the will of the §tates, and not from the will of Congress, the States Moay conform, or decline compliance; and thus the enactment is not positive and certain, but hangs on a contingency. Unless adequate State legislation come to its support, and infuse life and activity into it, it must remain, as it came from the hands of Congress, a mere inchoation, it is, then, in a complete state of dependence, powerless and inoperative. Standing alone, it accomplishes nothing; to fulfil the purpose of its authors, it must attach and connect itself with the subsequent legislation of the States. Without this intimate and auxiliary connexion, it is in a helpless situation. Necessarily, therefore, it must have passed upon the condition that, to be effectual, it must become so by virtue of iState taws. % * * . This act being originally incomplete, and insufficient for its object, in every instance where its purpose has not been consummated by the efficient action of the States, it must remain inoperative and impotent as to any effect upon their regulations, Mr. D. said, it had been attempted by several gentlemen, during the progress of this discussion, to justify and sustain this mode of legislation by precedents. He had no veneration for legislative precedents; and he denied that they had any binding and conclusive authority, Cases have been cited wherein Congress has expressly provided for additional and perfecting legislation on the part of the States. The cases produced for the exemplification of the authority claimed, do not belong to the #ame category of powers with that of the subject in controversy. The examples, upon which reliance is placed, are drawn from the exercise of powers expressly enumerated, and vested exclusively in Congress. That body having original and exclufive jurisdiction, may initiate legislation without conflicting with any powers belonging to the States. The power over elections, confided to Congress, is disjunctively connected with the right of legislstion of the part of the States respectively. In reference
to elections, when Coogress acts, the purpose is to alter what has already been done; or to make apū supply such regulations as the States have failed altogether to prescribe. It cannot seize original jurisdiction, and propose or dictate the form or substance of enactment to the State legislatures, which have a prior antecedent right of independent action. The distinction between the cases put for elucidation, and the case awaiting our decision, is too glaringly perceptible to admit of comment, or to require demonstration. But the cases cited will prove directly the reverse of that which they were designed to sustain. - With respect to the power of Congress to provide for organizing and arming the militia of the several States. if by organization, is understood the arrangement of the militia into divisions, brigades, regiments, battalions, and companies, and the prescribing the numbers of which they shall respectively consist, both officers and privates, then the act of Congress, so far as it depended upon the voluntary action of the State legislatures, would be inoperative and null, should those legislatures refuse or fail to supply the auxiliary legislation. ... If the legislatures of the several States should fail altogether to direct such organization as Congress had prescribed, it is palpable that, in such a condition of things, the act would be ineffectual and nugatory. It would so remain, and would be unexecuted. But no forfeiture of right would ensue—no punishment could be inflicted for recusancy—none would be contemplated or attempted. The act would simply remain inoperative and void; it would be a defective and impotent exercise of a granted power, and the true and efficient exertion of the power would await further perfecting legislation at the hands of Congress or the State legislatures. So, also, with respect to arming the militia. If Congress should direct the purchase of so many stand of arms as would be suffieient for the purpose, and direct them to be carried and deposited at the capitol in each State, to be distributed in such mode as the legislature might direct, it is evident that the provision for distribution of the arms would be of no avail, would be unexecuted, and powerless until the States should infuse vigor into it, and assist its consummation. Should the States perseveringly decline altogether, and should Congress adopt no additional legislation, the act must continue indefinitely unfilled, and wholly unproductive of any effect. So it is with the apportionment bill: the State legislation upon which it relied to give efficacy to the second section, in the several States, has been wholly refused in four States. In those States the provisions of the second section have been wholly inoperative and void. The difference between the cases cited for illustration and the one actually involved, consists in the consequences attempted to be deduced from the fact that four States have wholly disregarded the latter. In the supposed exemplifications, (as has been remarked,) no forfeiture, no penalty, no punishment of any kind, attaches for the failure of the States to comply; but a failure to do in this case what Congress desired or prescribed, is to be visited upon the heads of the freemen and sovereign people composing the States, with degradation, with a forfeiture of the right of representation, and humiliating subjection to laws in the passage of which they have been denied all voice and all agency. Mr. D. further remarked that the regulation by Congress of the value of United States and foreign coin, and fixing the standard of weights and measures, had not the refootest analogy to the second section of the apportionmaent act, Congress having regulated the value of these coins by laws duly published and made known, has fully exerted the power confided to it by the constitution. Nothing but gold and silver can be made a tender in payment of debts. Every citizen may demand, of right, of his fellow-citizen, the payment of a debt in gold and silver, to be received at its regulated value. This right all the courts, both State and federal, will enforce. State laws cannot wary this regulated value, nor is it at all dependent upon them for efficacy. State laws are not required to strengthen and uphold this constitutional right of the citizen, nor can they infringe or impair it. Congress, having fixed the standard of weighis and measures, has perfectly exerted that power; and the validity of their standard is not dependent on State legislation, nor can State legislation interfere with the universal obligation to observe this fixed standard in all transactions connected with weight and measurement. Mr. Speaker, (said Mr. D.,) my honorable colleague, [Mr. NEw Tox,] an old friend and schoolmate, who spoke first on this subject, having vainly endeavored to discover some similitude between previous legislation of Congress, and this unprecedented claim to prescribe the form of State enactments, and dictate the substance or matter to be inserted, he has resorted to the extraordinary expedient of conjuring up a ghost to guard his defenceless positions, and give security and apparent triumph to his desperate cause, by intimidating the assailants with a supposed hideous spectre. His ghost is not that of any former congressional enactment, or of any once living and efficient statute of like class with the present case. No; it is the ghost of a still-born recommendation of a Secretary. In reference to Mr. Poinsett's army bill, (said he,) my colleague has thought proper to single me out, and to make a direct and emphatic personal appeal to me, intimating some inconsistency between my present and former positions. My colleague, (said Mr. D.) will pardon me, but my mind cannot perceive any connexion between the subject under discussion, and the question of my individual consistency. He would not suffer himself to be drawn aside from the consideration of the subject before the House into a controversy concerning his own political consistency, or that of the party with which he cordially acted. old to be caught by such a contrivance. He, however, took no exception to the appeal made to him by his old friend, [Mr. Newton.] He deemed it no imputation upon his moral courage, or reflection on his mental sanity, to be challenged to meet a ghost. It required more firmness of purpose, more intrepidity of soul, to combat a ghost, than any argument his colleague had advanced. His colleague might perhaps be as usefully employed in examining his own consistency as in questioning that of others. Mr. D. related an anecdote of an old friend of his, in Brunswick, a widower, who was desirous of repairing his loss, by a second marriage. He decked himself in new apparel, and exerted him. self to improve his personal appearance. Having completed his toilette, being desirous to form some estimate of the probable favorable impression which his improved person might produce, he surveyed himself at large in a mirror, and, wonderful to relate, so complete was the metaphorsis, that he did not know himself, and made frequent inquiries during
Mr. D. said he was rather too !
the day in the village for himself. Could his coi. league (said Mr. D.) have the benefit of an ample political mirror, in which he could behold himself as he mont is, after all his various transmittations, and retain a distinct and vivid recollection of what he appeared to be in the commencement of his public career, he would not recognise himself as the same individual ; iike my old friend, who went wooing in a new dress, he would not know himself. Whenever his colleague (said he) desired hereafter to cons. jure up a ghost for the puropose of illustrating political inconsistency, it might be most appropriate to raise the ghost of his own departed political opinJ OK! S,
Another of his colleagues [Mr. SUMMERs) had ess. deavored to prove that the statute was good as far as it goes; that Congress having full power to make or alier the regulations prescribed by the States, as to the manner of holding elections, might, nevertheless, exercise the power, in part, without covering the whole ground; that other acts may be subsequently passed in aid of this partial execcise of the power, and thus make the legislation complete and effectual ; that several statutes, in pari materia, must be construed in connexion with each other, and taken as a whole. The rule of construction had doubtless been correctly laid down by his colleague; but, unfortunately there is no opportunity for its application. Where, so far as the four States are concerned, are the several statutes in pari materia? Where is the auxiliary legislation, State or federal, which invigorates and perfects the district system, announced in the second section only as a lofty generality. The act of Congress proclaims that members of the House of Representatives shall be elected from single districts; but fails to secure the division of the States into districts—provides no means of enforcing the will of Congress—prepares no details for the execution of the plan. The four States, on the corks trary, provide for the election of all their members by the general voice of the qualified electors, and prescribe sufficient regulations for the complete execution of their general-ticket system. Here, then, are statutes, State and federal, in pari materia, on the subject of electing members of Congress. Can these
be construed in harmonious connexion, and blended
into one consistent whole? The act of Congress, proclaiming or prescribing the district system, was hastily ushered into being, with its purpose only on its lips; and it has stood still ever since in gaping astonishment at the bold spirit of independence which defies both usurpation and dictation. It stands alone, an instance of weakness, and novelty; deriving no aid from the charitable assistance of the State legislatures; and receiving no succor from additional, federal legislation, Of itself, it can effect nothing; it is, as has been heretofore demonstrated, a nullity. It can take no efficient step, so as to be good as far as it goes. It cannot expand into effective authority, so as to cover any part of the ground.
Mr. D. said, his colleague had attempted some illustration of his argument by a supposed case of letting several tenements, with the reserved right of entry into some part of them. He (Mr. D.) did not comprehend the doctrine of landlord and tenant, lessor and lessee, with the laws regulating their mutual relations, as applied to the provisions of the constitution of the United States. Not perceiving the bearing or application of such an illustration, he would not undertake to examine or criticise it for