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S P E E CH.
An the House of Representatives, February 13, 1844– ‘Fhe following resolutions, reported from the Committee of Elections, being under consideration:
Resolved, That the second section of “An act for the apportionment of representatives among the several States, according to the sixth census,” approved June 25, 1842, is not a law made in pursu ance 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 two contested cases from Virginia, upon which no opinion is hereby expressed) have been elected in conformity with the constitution and laws, and are entitled to their seats in this House. Mr. DROMGOOLE, having obtained the floor, remarked that, although the usual hour of adjournment had arrived, he desired no delay or indulgence, and should proceed this evening to express his views, and thus contribute to save the time of the House. He said the debate had been continued without interruption for seven entire days, and to the exclusion of all other business. The majority here occupied a responsible condition to the country. On one hand, they desired to avoid the imputation of illiberality to their opponents, and a design to evade this question, and to suppress discussion; on the other hand, they felt it to o their duty not to allow the great interests of the nation to suffer by a tediously procrastinated debate on a single subject. 1t was time, he said, that this debate should terminate, and that other matters, both important and indispensable, should receive our deliberate considera#3 On. Mr. DROM.Google moved to amend the resolutions reported by the committee, by striking out all after the word “Resolved,” in the first resolution, and inserting, in lieu thereof, the following: “That all the members of this House, excepting the two contested cases from the State of Virginia, (upon, which no opinion is hereby expressed,) elected from the States of Maine, Massachusetts, Rhode Island, Connecticut, Vermont, New York, New Jersey, Pennsylvania, Delaware, Virginia,
North Carolina, South Carolina, Kentucky, Ten messee, Ohio, Louisiana, Indiana, Illinois, Alabama, Arkansas, and Michigan, have been duly elected, and are entitled to seats in this House as members from the States aforesaid. “Resolved, also, That the following members from New Hampshire, to wit: Edmund Burke, John R. Reding, . Norris, jr., and John P. Hale, have been duly elected, and are entitled to seats in this House as members from the State aforesaid. “Resolved, also, That the following members from Georgia, to wit: Edward J. Black, Alexander H. Stephens, Hugh A. Haralson, Absalom H. Chappell, John H. Lumpkin, Howell Cobb, William H. Stiles, and Duncan L. Clinch, have been duly elected, and are entitled to seats in this House as mem. bers from the State aforesaid. “Resolved, also, That the following members from Mississippi, to wit: Jacob Thompson, William H. Hammett, Robert W. Roberts, and Tilghman M. Tucker, have been duly elected, and are entitled to seats in this House as members from the State aforesaid. , “Resolved, also, That the following members from Missouri, to wit: John Jameson, Gustavus M. Bower, James B. Bowlin, James H. Relfe, and James M. Hughes, have been duly elected, and are entitled to seats in this House as members from the State aforesaid.”
The question before us (said Mr. D.) is one of great delicacy to ourselves, and of vital importance to the States of this confederacy. We have to form an opinion of the constitutionality, the validity, and effect of an act of Congress, which passed both houses with the usual formalities, and received the approval of the President. We have likewise to pronounce upon the constitutionality, and sufficiency of the legislative acts of four of the sovereign States of this Union, in conformity with which the number of representatives to which they are respectively entitled, under the last apportionment, has been elected. Twenty-one members have been returned as elected, and now hold seats on this floor. independent legislation upon matters left with them, or enjoined upon them; a proper veneration for the inestimable right of the people of each State to choose their representatives in Congress; and a Solemn sense of the obligation to support the consti£otion of the United States, must all be in the mind's contemplation in the prosecution of our inquiries, and in the formation of our final judgment. A decision against the act of Congress, in this instance, will only declare it a brutum fulmen, and leave it a harmless and inoperative provision on the statutebook. The legislative thunder of the 27th Congress will die away in empty sound, without having conofrained State legislation; without having affected the freedom and purity of suffrage; and without having impaired the great State right of regulating popular representation. To sustain the act—to decide that it overwhelms, annuls, destroys the regulations of four States, makes void their duly certified elections, and utterly defeats their representation as stipulated in the compact of Union, is indeed appalling in its consequences. Such judgment would rudely eject from this House the entire representation of these four States—twenty-one in number—who (it is not questioned) have been fairly elected. Mr. D. meant by the phrase “fairly elected” that the elections had been fairly conducted—that the electors had, without compulsion or improper interference, voluntarily exercised their suffrage—that their votes had been honestly counted and correctly summed up— that the returns certify the true results, and are in conformity with the expressed will of those who, by the constitution, are entitled to choose representsatives. The bare statement of the case—of its inseparable connexion with the rights of the States and of the people—and of the consequences involved in its decision, show the propriety of applying those fundamental rules of construction so perspicgously laid down, and conclusively enforced, by an honorable gentleman from Georgia, [Mr. CHAPPELL.] The jealous spirit in which the States adopted the constitution requires a strict construction of that instrument, so as to avoid all infringment of the rights reserved to the States respectively, or to the people. '#'he powers of the federal government are coniferred and limited by the compact which instituted it, and to which the States are parties. It cannot exceed the definition of its powers, or transcend the object and purposes of their grant without the guilt of usurpation and the crime of unlawful encroachxtent. If, upon a fair interpretation, its acts are found inconsistent with the grant, unauthorized or forbidden by the letter of authority, then being unwarranted, they become void and of no effect. The right of this House to pass upon the consti£utionality, the force, or virtue of the second section, declaring that the members of Congress from each State shall be elected from districts, has, in the progress of this debate, been generally admitted. A doubt, however, has been suggested, and the right denied by one gentleman, [Mr. VINToN of Ohio.] "Éhis House is made expressly, by the constitution, the judge of the elections of its own members. The validity of the elections of the members from four §tates depends upon the constitutionality, the extent of the obligation, and the nature of the operation of this second section. If it be contrary to the constitution, if it be inoperative from any cause, and imposes no binding obligation, then it does not annul, &pair, or alter the regulations prescribed in those
A due regard to the right of the States to exercise States, and consequently does not affect the validity
of elections made in pursuance of them. The question of the virtue of this second section necessarily arises in judging of the elections: it is involved in it, and cannot be separated from it. This House cannot exercise the constitutional power of judging of those elections, wtihout embracing in its judgment an opinion of the effect of the second section. The principle which would require this House to recognise the sufficiency and controlling efficacy of the second section, without question or examination, would leave no room for deliberation in judging of the elections, and would exact a conformable opinion without the free exercise of thought in its formation. Such a principle, such a rule of decision would leave the empty form of procedure—but would abrogate the substance of the power of judging of the elections. The very House charged with judging of the rights of its own members to seats, according to their most enlightened understanding, and the best dictates of reason, and with proper reference to the indications of the public mind existing in the constituent body, is itself forestalled. . The power of judging, given without dependence or qualification, is substantially superseded by the pre-judgment of a prior Congress. There is—there can be—but one rule which is safe, agreeable to reason, and according with the rights of all. Where the power of judging and deciding is given to any tribunal by the constitution, and the question of the constitutionality or validity of any law is involved, that question must necessarily be decided, so far as it affects the case in issue; and that decision is binding on those whose rights or privileges are to be adjudged. The power of judging is a farce, if the faculties of the mind are to be dispensed with in forming a judgment; and the oath to support the constitution is worse than an unmeaning ceremony, if, in deciding a case within competent jurisdiction, an enactment deemed unconstitutional or void is to prevail over a conscientious interpretation of that sacred instrument. The solemn oath to support the constitution fails to shield the constitution against the spirit of encroachment, and the progress of usurpation. If it be safe to intrust to the House the power of judging of the elections of its own members, there can be nothing monstrous in intrusting it also to examine the constitutionality and validity of the enactments both of Congress and of the State legislatures, upon the subject of those elections. On the contrary, it has been made clear (said Mr. D.) that it is consistent to do so; that it aids in arriving at light and truth; and, in fact, is necessarily and inseparably embraced in the power of judging. In the examination of controverted elections in the House of Representatives, State laws have been put aside and disregarded, as cortravening the constitution, and impairing the popular right of choosing representatives. And upon what ground can the distinction be maintained, that this House may apply the test of the constitution and the well-received principles of legal construetion to the statutes of the States, but dare not subject the enactments of Congress upon the same subject to similar scrutiny? Congress and the State fegislatures are empowered to pass laws on the subject of elections. The several enactments of these legislative bodies upon the same subject must be construed together, subjected alike to the constitution and to the established rules of construction, and must be alike liable to stand or fall in the judgment of the tribunal made competent to decide the elections. Otherwise, this House, in judging of the elections of its own members, is reduced to the strange condition of being required to admit the infallibility of a previous Congress, and acknowledge the inviolable sanctity of its enactments; whilst it may, without restraint, overrule and disregard the legislation of sovereign States. We have been told, Mr. Speaker, (said Mr. D.,) that this is not a party question. It is a party question, sir, (said he) of the highest order. It inwolves the same principles of constitutional construction which characterized parties soon after the formation of the federal government. The liberal construction of Alexander Hamilton and his followers, detracted from the rights of the States and the people, and tended to enlarge the powers of Congress and of the government generally. Jefferson and his republican followers maintained that all the powers of the federal government were derived from the constitution; that Congress could exercise no powers but those expressly granted, and such as were necessarily embraced in them; or, in the language of the constitution, were necessary and proper to carry them into effect. To go beyond this strict limit, was to usurp power, and to encroach upon reserved rights. Hence the disciples of the illustrious Jefferson are peculiarly State-rights men. In this very case, the antagonizing principles of the two parties are manifest. But, although it is a party question of momentous consequence, and divides the House on great principles, it may be discussed without the usual excitements, without engendering animosities, and without personal animadversions. Mr. D. said, he was happy to remark that such, in the main, had been the character of the debate. Mr. D. said, that before he attempted to examine particularly the meaning of the clause of the constitution specifically involved in this discussion, and the relative powers of the State and federal governments derived from it, he would be pardoned for making a very brief allusion to the celebrated protest, and to the movement of the fifty there with connected. He would advert to this subject, because an honorable gentleman from Tennessee [Mr. PickINson] had made a personal reference to him in connexion with it. A recurrence to the past will enable this House and the whole country to comprehend the movement. The act for the apportionment of representatives among the States, according to the sixth census, was approved 25th June, #842. When the President signed this bill, he lodged in the Bepartment of State a paper, expressing his opinion of the unqualifical power of each House to decide for itself upon the election, returns, and qualifications of its own members. The President has intimated the opinion that the House of Representatives alone, in deciding for itself the olection, returns, and qualifications of its own members, exercised an unqualified power; and, therefore, right draw in question the binding obligation upon the States of the second section. The same opinion had been conclusively maintained in the Senate. The indications of popular opinion were generally and strongly adverse to obedience to the second section. The popular movement and the popular indignation were not expressive of hostility to the district system, if the States chose to adopt it, but were directed against the act as one of usurped power &nd presumptuous dictation. A design was formed to forestall the judgment of this House, and preclude members elected to the 28th Congress from taking their seats. Yes, (said Mr. D.) the 27th
Congress actually attempted to anticipate the action: of this House, and to expel, in advance, by their legislation, the members of this present House, i. have (said Mr. D.) hunted up the parchment upon which was enrolled the bill, entitled “An act regullating the taking of testimony, in cases of contested elections, and for other purposes. It was presented to the President on the 31st day of August, 1843, at a quarter past 1 o’clock, the very day on which the two Houses had agreed to adjourn at 2 o’clock, p. m. The parchment, which I have mentioned, had it received the signature of the “Captain,” might well be regarded as a whig diploma. Haš the scheme in this bill succeeded in connexion with the famous second section, the whig party would, indeed, have taken their final degree; they would have graduated. The other purposes mentioned in the title are first in importance, and first in location. It provides for the returns, requires them expressly to certify from what district the members are elected, forbids the clerk to enrol any as members who are not certified, or proven to be elected from single districts; and for want of these preliminaries, they are to have no athority to assist in the organization of House. It failed to become a law, for the want of the signature of the President. And thus the grand design of the 27th Congress to expel, beforehand, the members of the 28th Congress, was frustrated. Soon after the commencement of the third sessios: of the 27th Congress—to wit, on the 14th December, 1842—the President sent in a message explain. ing the circumstances of the presentation of the bit; to him at the very close of the previous session, announcing the fact that it had not received his signature, and stating that he held himself uncommitted as to his ultimate action on any similar measure, should the House think proper to originate it de novo, except so far as his opinion of the unqualified power of the House to decide for itself upon the election of its own members, had been expressed in his extraordinary paper lodged in the Department of State. The design to accomplish the pre-exputsion of members of this House by a statute of Comgress, passed in advance of their attendance—per. haps in advance of their election and return, in advance of the organization or recognised being of the House having the unqualified power to decidewas, so far from being abandoned, commenced de movo. On the 15th January, 1843, Mir. Halsted, (a member from New Jersey,) in pursuance of previous notice, on leave, introduced the same bill for taking testimony in contested elections, and for other purposes. The bill was sent to a Committee of the Whole House on the state of the Union. it was never considered or debated in committee; but the committee was discharged from its consideration on the 16th February, 1843. On the 24th of the same month, the bill was read in the House; a motion to lay it on the table having failed, it was amended, on motion of Mr. Haisted, the amendment and the ot. der for engrossing and reading a third time having been carried, without debate, under the operation of the previous question; and immediately, without debate, under the operation of the previous question, the bill was passed. Sir, (said Mr. D.,) there was no sympathy for the rights of a minority; there was no time allowed for discussion, such as has been libee rally accorded on this occasion by the present ma-. jority. The contrast cannot fail to arrest the public attentIO11. - * : Here, them, ended the effort of the dominant party of this House in the 27th Congress, to prejudge the
Execkions of the 38th Congress, and enact a statutory expulsion of a portion of the members elect or to be elected. We hear no more of the bill to take testiwoony and for other purposes. It is presumed to have failed in the Senate, or to have slept the sleep of death. * At the commencement of the present session, however, there was exhibited the concerted design of a minority, consisting of fifty members of this House, to exclude the entire representation of four States from all participation in the organization. This effort, although it assumed the solemn form &nd shape of a protest, was singularly abortive. Let it be carefully collated with the past history which has been briefly reviewed. The public can be at no loss to discover the connexion of the movement and the continuation of a design, to discern its entire party character—to perceive the purpose, and comprehend the motives. The reference made to xne, and some remarks of mine, (said Mr. D.,) by the gentleman from Tennessee, [Mr. Dickinson, concerning the protestant movement at the opening of the session, seemed to require some notice. And Yıow having received the notice to which they were eminently entitled, the country may safely be trusted with the custody of these fifty political protest&?! #8. Mr. DRom Goori, remarked that, during the progress of this discussion, the opinions and observations of distinguished statesmen had been quoted, and urged here as conclusive authority. The argutaents and explanations of Madison, in the federal convention and in the Virginia convention; of Hamilton, in his essays contained in the Federalist; of conspicuous men in the several State conventions, and the proceedings and resolves of these conventions when ratifying the constitution—have all been paraded, for the purpose of establishing, beyond guestion, the unlimited power of Congress over the time, place, and manner of holding elections in the States, and sustaining this famous second section of the apportionment act. It is not admitted that they bear the construction, to the full extent, which has been given to them. He would admit that they might be examined for explanation and illustration; that we might resort to them as sources of informaton; but he denied that the declarations or dicta of any, however eminent, were to be received as explicit and authoritative expositions of the meaning of the constitution, or regarded as conclusively obligatory. Sworn to support the constitution, to that sacred instrument itself we must resort; and, from its own language, deduce its true meaning. As opinion of our own (said he) must be formed, &fter careful consideration, based on the conscientious convictions of our judgment; and such opinion of our own, humble as we may be, cannot be substituted by the words or dictum of another with the raost imposing name. For myself, (said he,) I must exercise the faculties of my own mind, however feebie, and give my voice in the decision of these elections according to my own mature and deliberate çoğvictions. ' “Mullius addictus jurare in verba magistri.” Were the opinions of others to guide us—were our judgKoents to be pronounced according to the authority of superior names, instead of our own sincere interpretations—they could not, in ford conscientia, be regarded by ourselves. Mr. D. said (holding up a volume of the Madison Papers) he should adopt for his motto the words which beautifully circumscribe, the initials (en
dorsed on thig volume) of James Madison, the wire tuous citizen, the wise statesman: “Weritag to terão magistri.” And now, Mr. Speaker, (said he,) iet us resort to the original text—to the constitution itself. The gentleman from Ohio [Mr. SchENck] who immediately preceded, announces that he stands upon the constitution and the dictionary. The dictionary, and the grammar too, (said Mr. D.,) may be advantageously consulted by that gentleman. The provision in the constitution which, at present, presents itself for our considerate interpretation, is the first paragraph of the fourth section of the first article, and is in these words: “The times, places, and manner of holding elections of senators and representatives, shall be prescribed in of each State by the legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the place of choosing senators.” The first portion of this paragraph, from the cornmencement to the word “thereof,” inclusive, applies exclusively to the action of the legislature of each State. It declares imperatively that, in each State, the times, places, and manner of holding elections, shall be prescribed by the legislature. Here is a constitutional mandate positively enjoining a duty on the several State legislatures. The mode of performing the duty is left to the wisdom and discretion of the legislative bodies, who are required to discharge it. The action requisite under the constitution is unqualified; it is not restricted or limited; it is not contingent; it is not made dependent on other authority. Whilst, then, the constitution unequivocally commands the legislature of each State to prescribe regulations, it authorizes no interference on the part of Congress—no precept from that body—no dictation of terms—no direction of the provisions to be inserted. This freedom from all control is, indeed, the right of independent action. Their own judgment then, their mature deliberation, their own solemn sense of the nature of their duty, must guide their counsels, and mould their enactments. Under a solemn oath to support the constitution, to it these legislatures must look with reverence and obedience, and may not subject themselves to congressional dictation. Their duty to legislate is constitutional; and to perform this duty independently of Congress, is a manifest right, The power over the subject, which belongs to the State legislatures, is primary; it must originate; it is precedent in order and time to the co-existing le. gislative power of Congress over the same subject. The congressional power is secondary to that of the States; it is ultimate in its operation, and cannot precede or dictate. This, he said, he took to be the true grammatical construction and intended meaning of this provision of the constitution. The first portion of the paragraph, as has been shown, gives to each State the power to originate regulations, to prescribe—that is, to order, direct—the times, places, and manner of holding elections. And then follows, “but the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing senators.” Here the duty of the State legislatures and the power of Congress are disjunetively and not copulatively connected. They are contrasted as separate and different, and not coupled and united into one continuous power. The disjunctive joins things that are contrasted with each other; the copulative joins things that are congruous. “But” announces something additional—beyond.