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Ост. 2, 1837.]
(H. OF R.
Under circumstances which may frequently exist, the notice bers elected were to hold their seats, was of any legal effect. for convening Congress may necessarily be so short as to The former of these two questions, he added, was by far preclude all possibility of electing nembers under a special the more difficult, and, indeed, the only difficult one ; for he act to be passed by a Legislature not in session ; indeed, I took it to be too clear for controversy, that if those gentledoubt very much whether there was time in this case. men were entitled to sit there a single moment, they did After the President's proclamation reached Mississippi, and and must hold their seats for the whole Congressional the Governor gave reasonable notice for convening the term, by an authority paramount not only to that of the Legislature, I think there would have been no time left to Executive, but lo the laws and the constitution of the advertise an election as required by the law of Mississippi. State. Besides, you must take into the account the time necessarily And in the outset, Mr. L. said, he should assume (for spent in travelling 2,000 miles, the distance from that he understood it to be so conceded on all hands) that this State to the seat of Government. Certain I am, there election-supposing the Governor to have had the constiwould not have been time enough, if the Legislature of tutional authority to order it-bad been in every particular that State should be as tedious in its operations as we are. precisely conformable to the law of the State of Mississippi Every reason seems to concur in favor of the validity of in relation to the filling up of vacancies in the House ; that the election as it has been held under the authority of the the writ had issued in due season ; that it had been careGovernor of Mississippi.
fully published and proclaimed in every part of the State ; The gentlemen opposed to the report seem to me as un- that the polls were held by the persons, at the places, in fortunate on the score of precedent as that of reason; two the manner required by the statute ; that every man enticases have been cited, Kinsey Johns of Delaware, and tled to vote knew, or may be fairly, and must be legally, preMr. Lanman of Connecticut, and those cases turned on sumed to have known, that he was called to choose those principles entirely different from that before the House ; who were to represent him here, and when it was and why both of them happened in the Senate. The case from it was, he was called to do so; that the attention of the Delaware was an appointment by the Governor to fill a whole people being thus awakened to the bigh and imvacancy, where a session of the Legislature had intervened | portant matter they were summoned to pass upon, they before the appointment was made. The case from Con- did in fact come forth in very great strength, and gave to the necticut was an appointment made in February, to fill a situing members a clear majority of several thousand votes vacancy which would not happen until the 4th of March, over their competitors; that this result had been acquiesced thus making the appointment to fill a vacancy before the in by all parties there, no protest having been inade, nor vacancy bad happened. The bare statement of these cases so much as a whisper of dissatisfaction having reached the shows at once they can have no bearing on the case before Chair ; and, finally, that it was only at the request of the the House ; they do not apply. So far from precedents being gentlemen themselves, who had been thus authorized to dein favor of the position of gentlemen in opposition to the mand for the people of Mississippi a voice in the public report, they are the other way, so far as they can have any councils at that interesting juncture, that a formal inquiry application, and in favor of the ground taken in the report. into the right of that people to participate in the legislation So sensible was the gentleman from Virginia (Mr Robert- by which they were to be bound, had been instituted at all. 80N) of this fact, that he had to resort to the observation, And then, said Mr. L., the question was whether an electhat in cases of contested elections, precedents should have tion thus ordered, thus conducted, thus concluded—an but little weight; and in this I agree with him. Mr. Speak- election unexceptionable in every detail, complete in all its er, I have thus given the views which operated on my parts, decisive beyond the possibility of doubt in its results mind, and nothing that I have yet heard can bring me to an election expressing the sense of the voters of two Conentertain a single doubt with respect to the correctness of gressional districts, in the most authentic and the most unthe resolution attached to the report of the committee. questionable manner-without which, it is admitted, they
The hour of half past two having arrived, the House would have been without a representative here on one of took the usual recess until four o'clock.
the most momentous occasions
to them, as appeared from
the last week's debate, most especially so that had ever ocEVENING Sessiox.
curred in the political history of the country; whether such The House resumed the consideration of the report of an election, he said, should be treated as a mere nullity, and the Committee of Elections, on the subject of the election the members returned under it be sent back to their conin the State of Mississippi.
stituents, then the certain consequence must be that those The question being on the adoption of the resolution de districts would be, for a timo, utterly disfranchised ; the claring Messrs Gholson and Claiborne entitled to their voice of a State (and if of one, why not of twenty ?) stifled, seats for the 25ih Congress, and the immediately pending while her interests were disposed of by others, the integrione being on the amendment of Mr. Maury, declaring ty of the Legislature violated by the absence of one of its those gentlemen not duly elected
essential parts, a quasi interregnum created in the GovMr. LEGARE, who was entitled to the floor, began by ernment itself—and why? Because, forsooth, a vacancy saying that he regretted very much that, owing to various in the whole representation of a State, when it is called avecations, and to incessent and fatiguing attendance in for here, is no vacancy at all !-or because the same high that hall, it had not been in his power to look as fully in functionary, who is expressly charged by the constitution to the subject, especially with a view to precedent and with secing that every casual vacancy, in the most ordiauthority, as he should otherwise have felt it incumbent nary times, should be immediately filled up by the conupon him to do. He had, however, thought much of it, stituency interested in it, did, with a view to prevent a and would now submit the result of his reflections to the total failure of all representation at a most extraordinary candid consideration of the House,
juncture, call the electors of a State together, (for that is The case, he said, presented two questions: first, the whole extent of this mighty usurpation,) to discharge whether there had occu
curred, in the representation of the the most solemn and most indispensable of all their duties State of Mississippi, such a vacancy as its Executive au- under the constitution of the United States, and to excrthority was required by the constitution of the United cise their most undoubted, essential, and inalienable rights States to order an election to fill; and, secondly, supposing as a free people, according to the very letter of the statute that question decided in the affirmative, then, whether the in such case made and provided. limitation (to the extra session) attempted to be imposed He said that, thus stated in the abstract, the proposition by that functionary upon the tenure by which the mem- wore to him the air of a paraclos. Every body must per
H. OF R. )
(Oct. 2, 1837.
ceive at once that it supposed some strange defector an enormous evil. The position is radically opposed to the right of irregularity in the institutions of the country, of which, à frase, as it also is to well-establised rules for the interpretation
of statutes of this description : and it will make the right the victim priori, he would be most unwilling to admit the existence. of accident, ignorance, inaltention, and even of fraud, in the execution Whatever the rights of the people of Mississippi, considered
of an election law, and consequently of those very precautions which
were intended to secure its exercise. On the contrary, sir, ueither by theniselves--whatever good faith towards their co-States accident, ignorance, inaltention, nor even traud in the officers of elec. in the use of powers conferred upon thein for the common lion, in omiuing to comply with the prescription of the law oughi, in
all cases, necessarily lo disappoint ihe right of suffrage. If the au. good of the Confederacy--whatever the peace, order, and
thority of the officers was tolerably or apparently good ; is the defects safety of the whole country-whatever substantial justice, in furm were such as did not distúrb lhe fairness of the election, nor public convenience, a practical compliance, in spirit and in
prevent ils fundamental nature, by making it a vira roce election in.
stead of an election by ballot; or, on the contrary, is, in spite of irregu. truth, with the laws and the obligations of society, could larities, this House can see that, according to the spirit of the law, the do to give validity and sanctity to a popular election, will of the people in the exercise of their right of suutrage has been
fairly expressed, and if the State law does not expressly declare the was to be found in that submitted to the judgment of the
irregularity to be fatal, then, in my apprehension, ihe authority of the House. Nothing had been, nothing could be, objected to House to judge of the election leaves it free to disregard those irregu. it but what was quite formal--mere subtle ties of the sum
larities, and to give full effect to the will of the inajority of qualified
voters. It is free to disregard thein, in deference to the policy and mum jus. He did not mean to affirm that where provis. spirit of the law, and is not bound by a servile attention to forons to ions of the constitution or the laws, however arbitrary or
defeat them both. however stern, were clear and imperative, the House was That (continued Mr. L.) was, beyond all doubt, the at liberty to depart from them, even to prevent great public true canon of interpretation in matters of election law. inconvenience. But he did insist upon it that, in such a The great cardinal object was to fulfil, as far as possible, question as this, he that would sacrifice substance to form, the will of the people, to take care of their rights, to see the end to the means, a manifest equity to strict law, must that he who claimed a seat there were really their chosen inake out a clear case. The burden of proof was upon him. representative, and that he who was clearly ascertained to L'very presumption of law and reason was againsi the idea be their chosen representative should not be excluded on that any people had voluntarily ordained an anomaly so any merely technical or formal grounds. strange, a defect so dangerous, in their sundamental laws. Nor was this liberality of construction in regard to the It would not do to surmise the people out of that House. execution of such powers-supposing them of course to be The great right of representation and the sacred duty of clearly ascertained, and not in any degree to affect the maintaining the Government of the Confederacy, were not rights of third parties-confined to the law of Parliament. to be superseded by distant inference and loose conjecture. It was a distinction known to the old coinmon law as long He called upon gentlemen on the other side for proof-for as any record exists of its principles, that where a power the ocular proof--and should feel himself bound to give to was granted for private purposes, for example, to three the people of Mississippi the benefit of every doubt that persons, and one of them died, the other two could not unight arise as to the exercise of a right so infinitely execute it; but if they were commissioners for any public precious to themselves, and which, far from coming into business, a single survivor might do whatever the whole collision with the rights of others, was, on the contrary, college were authorized to do. Even the crabbed and innimperatively demanded by the very obligations implied and practicable spirit of English black-letter law yielded so far iniposed by these.
to the overruling necessities of society. That departure That the rule of construction, in respect of this funda- from the rigor of njere technical principles, from the stiffmental right of representation, was in all cases to aim at ness and pedantry of forms, in favor of public conveniencegiving effect, as far as possible, consistently with higher carried out, by the uniform practice of all legislative bodies, principles, to a fair exercise of it, appeals to the experience to the length of regarding many provisions of election laws of every one at all versed in the history of parliamentary as rather directory to the officers charged with the fulfilment bodies. The House, as the judge, in the last resort, of its of them than essential to the validity of the acts done unown privileges and those of its members, habitually deci- der them-disclosed and confirmed the rule which he had Jed such questions in reference to their real merits, and the just laid down as to what ought to be the leaning of the substantial justice of each particular case. The law of House on that occasion. Parliament on this point had been expressed with such ad- Mr. L. then proceeded to say, that although, if the view mirable precision and elegance by a gentleman of great he took of that rule were just, he might, under the circumprofessional reputation, lately a member of that House, stances already stated of the election in Mississippi, almost that he should make no apology for substituting the lan- rest the case there, or at least fairly call upon gentlemen to guage of Mr. Binney, in the case of the Kentucky election, establish positively, and to establish clearly, that the peofor his own.
ple of that State could not be represented here; he would Extract from Mr. Binney's speech.
venture, however, to go further. He would undertake to “What, then, ought to be the interpretation applied by the House show, negatively, that they could establish no such propoa law of Kentucky prescribing tha manner of holding elections for sition. He could see nothing in the constitution which Representatives in Congress? The law dues not give the right of voting; it is not intended to restrain or abridge it ; its great object is to pro.
was so plain, express, and iinperative, as, to authorize the mote and secure a fair and free exercise of it. Gentlemen who argue, House to deny to the people of a State their fundamental as some who have argned on this floor, that, being a conventional, and not a natural right, it does not exist unless it is exercised in the pre
rizht to a voice in their own legislation. Gentlemen, bet. cise nianner in all respects as the State law prescribes, build turn ar- ter versed than he could pretend to be in the application of kument upon a distinction which is of no value, and confound things legal principles to practice, might see the suliject in a difwhi: hare essentially different. Whether the right of suffrawe be sia. tural or conventional is of no importance. It is a fundamental right. foreni light, and be able to point out with precision wherein Government itsell, or rather a particular form of Government, is con his opinion was erroneous. But, until they did so, he ventional; and is the right or surrade is as good as the Government, i need not be better. Being a fundiunental right, securcil by the cons
should feel himself bound to repeat, as he then diil, that stitution of Kentucky, it ought not to be, and cant. legitunately be there was, in his opinion, nothing in the constitution of coufounded with these provisions of law which are designed to secure the United States which required at their hands such an its exercise. That al: ihe provisions of an election law are parts of the qualification of an elector, and to be scrutinized and enforced with: extraordinary sacritice of popular right, social duty, and the same striciness as qualification itself, is a position that is but war. pulvlic convenience, as would be the consequence of setting ranted by any analogy in the law. Dubuless, the provisions of every
aside the election before them. stanite are entitled 10 respect and general observance. It is the duty avf those who execute the laws to respect and enforce them all. But He then called the attention of the House to the clauses wheu the argument assumes for thein such an intluence, as that the of the constitution relating to the subject. omission to oligerve any one of them becomes a defect of qualification in the voter, and obliges this House to reject as illegal the votes re
The first was from the second section of the first article. ceived while the irregularity prevailed, ihe construction becomes ** The House of Representatives shall be composed of
Oct. 2, 1837.]
[17. Of R.
members chosen every second year by the people of the sound doctrine, inconsistent with the whole scheme of the several States," &c.
Government, to suppose that the tenure of the representative Then, after assigning to each State, until the first census authority, thus precisely and solemnly designated by the should be taken, an arbitrary number of representatives, it whole people of the United States in their fundamental law, proceeds thus:
ed, any part of them, at their good will and “When vacancies happen in the representation from any pleasure. The States, and the people of the States, are State, the Executive authority thereof shall issue writs of bound to conform in good faith to that principle by the most election to fill such vacancies.”
sacred of all obligations, as well as by the most manifest T'he next (3d) section is as follows.
consideration of policy. “ The Senate of the United States shall be composed of Looking, then, at these two sections together, every one two Senators from each State, chosen by the Legislature must see that the object was, as he had said, to constitute thereof for six years," &c.
the Legislature, and insure its existence and its duration. It then proceeds to divide the Senators to he chosen Looking at the former alone, it provides, 1st, that the into three classes, and to ordain that
House of Representatives shall be elected for two years ; “ The seats of the Senators of the first class shall be 2d, that whenever any vacancy shall occur in the reprevacated at the expiration of the second year; of the second, sentation from any State, the Executive authority thereof at the expiration of the fourth; and of the third, at shall see to its being filled up by the people. the expiration of the sixth year, so that one-third may be He could not resist the conviction that they who adopt. chosen every second year; and if vacancies happen, by re- ed this section thought they had provided for that perpetsignation or otherwise, during the recess of the Legislature ual renewal of the House, which is necessarily presupposof any State, the Executive thereof may make temporary ed by the perpetual existence of the other branch of the appointments until the next meeting of the Legislature, Legislature. The idea of a mutilated Congress is a monwhich shall then fill such vacancies,”
strosity-it could not have occured. He was sure it had Now, said Mr. LEGARE, what was the object and effect never occurred to any one of the wise men who laid the of the second and third sections? It was to constitute the foundation of this Government in so much good faith and Legislature-to declare its tenure--to insure its existence. singleness of purpose.
Were not the words of the clause One of the Houses is to be a perpetual body, in the proper comprehensive enough? Was there any exception or resense of that word. I was never to be wholly vacant; new serve in them? Could there have been less? They ormembers were always to be in so decided a minority that dained elections for two years: and they further ordained no sudden change of opinion or policy should happen from that, whenever “ vacancies should happen in the reprethat cause alone. The Senate should guaranty, to a certain sentation from any State," be they what they might, extent, stability and consistency in the course of the Gov- they should be filled up by the people. Was not that right ernment: it should keep up fixed habits, and hand down and proper? And that the people might surely be called, traditional opinion; it should have an esprit de corps, in a regular and certain way, to exercise that right, they and the other attributes of permanent bodies. The House, imposed it as a high and solemn duty upon the heads of the on the contrary, was to be wholly renewed at shorter, State Governments themselves to all time, to see that they but not too short intervals; for the convention dealt in no were so called. What limitation, he asked again, could extremes of any kind.' The tenure of a seat in it was to be be pretended to be imposed upon the large and comprefor two years-beginning, by a resolve of the convention, on hensive generality of these terms ? Would it be said that the 4th Marchand for neither more nor less than two this was no vacancy? No vacancy, when this Congress years. All its members were to come in together; they assembles under the constitution, and two districts are not were all to go out together, and sink again into the represented ? It was like the argument of the old philogmass of the community. If gentlemen would look into opher against the existence of motion, to be answered by the papers of the Federalist touching this subject, they would the fact itself-no other answer was needed-none could find that nothing was more insisted on as indispensably ne- be given by a plain man. cessary than uniformity in the tenure of that House. The There was stress laid on the verb “to happen.”* Mr. celebrated author of that part of the commentary then al- Wirt's excellent opinion, which had been printed for luded to, used language of extraordinary emphasis and the use of the House, had settled the legal philology positiveness in regard to it. He declares he should greatly of that unfortunate word forever. But, if it had not, could prefer a prolongation of the term to three or four years, to any one seriously pretend to speak English and deny any irregularity in the periods at which the delegations of that to have happened which actually was? Was it the different States should enter the House. Right or not a fact that, unless Messrs. Claiborne and Gholson wrong, Ibis view had been adopted by the convention, and were admitted to their seats, a vacancy had happened in it was now, beyond all shadow of doubt, the law of that the House? And could it happen in the House withbranch of the Legislature, settled in conformity with the out happening in the representation of any State ? To soundest theory, by constant and invariable practice, that him it appeared very clear, that the word “ representathe term of service of every member of that House began lion,” as used in the constitution, meant the abstract idea on the 4th of March, and expired on the 4th March two of the share of each State in the legislative power. South years afterwards. No State could, either by its ordinances Carolin: should have 9 Representatives out of 242. If he or its constitution, through its Legislature or its Executive, were asked by a foreigner what her representation was, he by omission or by commission, directly or indirectly, alter should apprehend him clearly, and answer, without diffithis great fundamental principle. It was the corner-stone culty, it was nine menibers--not A, B, C, or D. Jo was of the whole fabric; we had solemnly covenanted with one the correlative of " direct taxation".
'-an ens rationisma another that there should be a supreme legislative body, being existing in contemplation of law, and in the scheme composed of two integral parts—the one of them, perpet- of the constitution; and this interpretation reconciled, as ually existing, the other perpetually renewed-each cor- good interpretation always did, the most exact principles of recting the other in whatever exaggeration of its principle a philosophical theory with the common sense and common it might otherwise be es posed to, but neither capable of acting language of mankind. (legislatively) without the other, and the existence of This construction seemed to be agreeable to all the adthe one supposing the co-ordinate, subsidiary, or, if he mitted canons of interpretation, and to fulfil every one of might so express it, supplementary existence of the other. I their cardinal objects." Ist. It was the most simple and It is a wild idea, without the semblance of support from any literal, and that is always to be adhered to if possible. 2d.
H. OF R.]
[Oct. 2, 1837.
It was in furtherance of popular right, considering the peo- mentous and awakening occurred in the earlier part of this ple of Mississippi in their immediate relation to that House. year, when so many States were without Representatives 3d. It was equally to be favored as enforcing a bigh duty elect, requiring at the hands of the Executive the convenof the same people considered as a part of a confederacy-ing of Congress—had a sudden invasion, had a fearful serthe duty of maintaining the Government in its integrity. vile war, had some great and alarming revolt against the 4th. It prevented iminense public inconvenience; never, laws, such as we have already seen in the history of the indeed, could the argument ab inconvenienti be stronger. country, or worse, occurred, there would scarcely have
He begged the House to consider the subject in this been found a man to doubt but that elections held under point of view. More than one difficulty presented itself writs issued by the Executives of those States were valid, in relation to it.
and that the Executives were empowered to issue such In the first place, he would ask, was it consistent with writs precisely to protect society against the terrible conthe constitution that, in the compulsory inevitable absence se quences of omissions like these. of the representation of one or more States here, the others On the whole, therefore, Mr. L. said he was sure the should meet and transact business? He did not mean an House would agree with him that he had so far made out absence from casualty-for, of course, they cannot, con- an exceedingly strong case, and that if the election in Missistently with the exigencies of human affairs, be taken sissippi were to be impeached, it would not be for any into the account-but absence under a legal disability, and thing to be found in the second and third sections of the that disability approved, according to the argument, and constitution. almost imposed in the constitution itself. Had such a case He would next proceed to inquire how far his previous ever been contemplated ? Will any one pretend that any conclusions were affected by the 4th section, on which so provision has been made for such a case ? Why not, if it much stress had been laid. It was as follows: be in the purview of the constitution ? But what was the “The times, places, and manner of holding elections for House to do in such a contingency now, in the opinion of Senators and Representatives, shall be prescribed in each some gentlemen, actually arisen ? Could it go on? Ay State by the Legislature thereof; but the Congress may at or no ? They might take either branch of the alternative. any lime by law make or alter such regulations, except as If yea, then where should the line be drawn ? If the absence to the place of choosing Senators." of one State, under such a disability, were no legal obsta- “The Congress shall assemble at least once in every cle to the proceedings of this House, why should that of year, and such meeting shall be on the first Monday in Deten be so--nay, of twenty, provided the other six could cember, unless they shall by law appoint a different day.". send a quorum ?. And the matter of fact was that it required To which may be added the clause in the 3d section of actually not many more than six to compose a majority here: the 2d article empowering the President “on extraordinary New York, Pennsylvania, Ohio, Virginia, North Caro- occasions to convene both Houses." lina, Kentucky, Tennesse, would do it. You have then, The question was whether the power thus granted to the on this supposition, a Legislature which is complete in the States, io regulate the time, place, and manner of holding absence, under an invincible legal disability, of nineteen elections of representatives, was meant to be absolute and out of lwenty-six of the sovereignties of whose delegates it unqualified, as gentlemen seemed to imagice, or was, like is composed ; that legal disability being considered, like all other powers, granted for accomplishing the great cardithat of infancy, as a high privilege, and as guarantied by nal objecis of the constitution, subject to the tacit condition the very constitution which, at the same time, enabled of being exercised conformably lo ihe scheme and purposes others thus to take advantage of it!
of that constitution. But if the answer were in the negative, then here was a Every one who had weighed well the views he had already country deliberately exposing itself to all the dangers of a submitted to the House would, he thought, agree that it was complete irremediable interregnum of its whole legislative necessarily qualified and conditional ; and that the execupower for, it might be, nine months in every Congres- tion of it might be vicious either by excess or by defect, sional term! Did any body think that a construction either by doing too much, or by doing too little. The case lightly to be adopted which led to such consequences as before the House was one, he thought, of an imperfect exthese? See what the very men who formed the constitu. | ecution of the power. tion thought of that state of things which was now claimed In the first place, the House would remark, that, in a strict as a privilege, while an attempt to prevent its immense theory, the whole subject of its own elections ought to have and obvious inconveniences, by the usual exercise of pop- been absolutely within the control of the federal Government, ular sovereignty under the same constitution, was denoun- for the same reason that any other part of its cssential ced, with a gravity almost comic, as downright usurpation action-its Executive administration, for instance—had been and tyranny. Look into the Declaration of Independence, rendered independent of the States. The relation between said Mr. I.; you will there find that among the grounds the menibers of that body and its constituents was immediand motives of that ever-memorable step, among the facts ate-the Government was in this respect national, and not submitted to a candid world as fully justifying revolution federal. It must be regarded, therefore, as a great concesand civil war, is the very right claimed, it should scem, sion to the Slates to allow them even this modified right to and exercised at the expense of the people of this country regulate the circumstances of elections, of which the periods by the British crown. In the same catalogue with the and the character had been unalterably determined by the burning of our towns, the ravaging our coasts, the destroy- second section. This, let it be remarked, was none of ing the lives of our countrymen, the transporting us be- the reserved rights of the States; it was merely the creayond sea for trial, the bringing hither of large armies of ture and the incident of the federal constitution itself. But mercenaries to complete the works of death, desolation, cogent reasons of public convenience and esiablished usage and tyranny, under circumstances unprecedented in his- in different States, made them naturally tenacious of the tory, and unworthy of the head of a civilized country, it is power of regulating their elections in their own way, expressly charged that he had repeatedly dissolved legisla- It was matter of local detail, with which their Legislatures tive bodies, refusing to call them together again, whereby would be of course best acquainted. Some of them voted their powers had returned to the people for their exercise, by ballot, others viva voce-some of them preferred what is the State remaining exposed in the meantime to all the dan-called a general ticket, others the district system; these, and gers of invasion from abroad and insurrections within. That many other similar circumstances, would make the adoption was their simple way of considering the subject; and he ven- of any inflexible universal rule, unless experience should tured to say that, had some public exigency still more mo- prove it to be quite indispensable, very difficult, and its
operation if adopted unequal and inconvenient. It is by no be extravagant enough to contend for any such arbitrary means to be wondered at, therefore, that we find the States and anti-social power in the Legislatures of the States. At insisting strenuously upon having the power to regulate the any rate, the wilful exercise of it was not lightly to be precircumstances-the time, place, and manner-of elections, in sumed: the fair conclusion was, in such cases as that bethe way which their Legislatures should judge most agreea- ford the House, that it was a mere omission, oversightble to their immediate constituents. But how did it follow an accident, in short, by which a literal interpretation of that because, through a departure from the rigor of theoret- the State law would be rendered inconsistent with the parical principles in favor of public convenience, they have a amount objects of the constitution. The vacancy must be right to render the performance of their duty under the sec- supposed to have happened, in the ordinary sense of the ond section of the constitution as little irksome or annoying term—that is, to have occurred involuntarily and casually; as possible to themselves, therefore they were left at perfect and, he repeated, it was the very object of that clause in liberty to perform it or not, at their pleasure ? that because the constitution to prevent the evil consequences of such they may regulate the circumstances of an election, they omissions and accidents. What if the election law of a have therefore an unqualified control over its existence, and State had been wholly forgotten in the hurry and bustle of over the tenure of the office created under it? because, in a session of its Legislature? What if, by some casualty, short, they had a power under the 4th section, of which the the great seal of the State had not been affixed to it, or exercise in good faith is perfectly consistent with the duties some other necessary formality had been forgotten ? imposed in the 2d, therefore the duty is swallowed up by But, said gentlemen, all those inconveniences were forethe power given for its fulfilment, and the great cardinal seen and provided against by the same clause of the constiprovision of the law, by one that was merely subsidiary tution which vests this power in the States ; for it goes on and instrumental to it?
to give the ultimate control over its exercise to Congress, If an unqualified control over the whole subject of elec- which had only to pass a uniform law upon the subject : tions for Congress had been intended to be vested in the and it was asked, Should this extraordinary means of a States, why impose this duty of issuing writs to fill up va- Governor's writ be resorted to, when another as effectual cancies--all vacancies--as an article of the fundamental law was at hand ? of the Union, upon their Executive authorities forever? To this he answered, in the first place, that no ordinary If the general election was to be so completely in their means could preclude all casualties. Mistake, omission, power, that it should be claimed and proclaimed as their and other accidents just alluded to, would occur in spite of undoubted right to order or to omit it, why not leave it to every precaution ; and why adopt a construction by which, their legislation also to take care of a few casual vacancies ? even under the most pressing imaginable exigencies of Why mention vacancies at all ? There appeared to him but society, they could not be obviated, when nothing whatone possible conclusion, and that was, that in all cases ever rendered such a construction necessary, and no inwhatsoever of vacancy in the representation from any State, conveniences could possibly result from the opposite and when it was called for there, the executive authority should more simple construction ? But, in the next place, he see to their being filled up by the people--because such proceeded to deny that the reservation to Congress of the a case as a State so arranging its election laws as purposely power to alter the State laws, in this particular, had the to create a vacancy, was not contemplated, and could not same object as the power conferred upon their Executive be contemplated, by those who framed the Government, on authorities to issue a writ for the filling up of vacancies. the principles he had already explained.
He admitted that stress was laid, in the discussions that Therefore, as he read the constitution, all elections being took place while that constitution was under consideration, intended and supposed to be held before the 4th of March, upon the necessity of reserving the ultimate control to all vacancies were, of course, such as every one admitted Congress, because, otherwise, it would be competent for to be properly filled by writs from the Executive. This the States, by refusing to pass any election laws at all, to simple, natural, and fair construction reconciled or pre- create an interregnum in the Government. But he insistcluded all conflicts and contradictions whatever; whereas, ed—besides that nothing is more unsafe than to construe a the doctrine contended for by gentlemen was the source of law, not according to its natural import, but by reference those very perplexities and incongruities on which, as the to the reported, or even the ascertained, delarations of House had seen, such immense stress had been laid to dis- some of its advocates at the time that such expressions in prove his reading, and to which he should presently speak the writing and speeches of '88 might be reconciled, withmore particularly.
out any violence, to his reading of the constitution. The saine conclusion was supported by the clauses which Certainly, in every well-constituted State, there must relate to the meeting of Congress. This is to take place be election laws-laws regulating the time, place, and at least once a year-in the absence of all legislation on the manner of exercising the great fundamental right of sufsubject, on the first Monday in December; but any other frage-although, as has been shown, that right exists inday may be fixed by Congress, and the President may, by dependently of all such laws, and has often, in the history his proclamation, anticipate, whenever the public good may of all free Governments, been exercised without them. require it, the regular term under the law or the constitu- Care must be taken that these circumstances be well ascertion. Now, a meeting of this House, thus called by the lained, and notified to the electors, in order that there Executive, would be as constitutional, and, since it would should be no mistake or surprise, and that the result of the generally be called under the pressure of some great exi- election might be in fact, as it was in conclusion of law, a gency, at least as important as any other.
fair expression of the sense of the people. If an election Phen, did any one pretend that a State would have a be regularly held in conformity to law, those who vote deright to elect for only one of the two sessions of a Congress ? cide for all. It goes on a necessary presumption, where And if a State did so, what should this House decide as to proof is impossible. But if there be any ground to allege the vacancy thus created? That was the very question it mistake or misunderstanding, or want of notice or informahad now to decide. For that session was as legitimate, as tion, it vitiates a popular election, and that presumption constitutional, as the regular session in December: and if cannot apply. Hence, the most precise speaker or writer a State had a right to contrive its laws so as to defeat or might very well say that to give the States an absolute prevent the one, it had the same right in regard to the control over the whole subject of the election laws, was to other.
make Congress dependent for its existence upon their will As a matter of right-of moral competency, at least, and pleasure ; for it was not necessary here to contend (as nobody, he was sure, for reasons already assigned, would ' i was thought he did) that the executive authority had