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H. OF R.]

Mississippi Election.

any constitutional right to appoint the time, place, and manner of elections, but only to issue a writ to fill up a vacancy, where time, place, and manner were already fixed by law, as he should presently have occasion to explain more fully. It was, then, in reference to the necessity of some legislation upon the subject, which every body would admit was (as a general rule) indispensable, that so much importance had been attached to this clause in the constitution, and such sweeping terms used in regard to it, in the discussions of the day.

But it was further to be remarked that the powers thus reserved to Congress went much beyond that claimed for the State Executive, which was only that of preventing vacancies occasioned by imperfect or perverse legislation of the States. It controlled absolutely the whole subject of congressional elections, with the single exception of the place of electing Senators. That body might, as he had already said, pass uniform laws requiring all elections to be by ballot or viva voce-all to be by general ticket or by district-all to be at the same season of the year, &c. It might not only restrain and rectify an unconstitutional exercise of the power of the States in this particular-it might not only supply deficiencies or retrench excesses in it--but might supersede and annul the (otherwise) constitutional exercise of it. It was, therefore, quite natural that it should have been the object of jealous and vehement discussion in a country of such various character and condition, and that, in that discussion, the great prominent objects of the respective provisions should have absorbed the attention of minds engaged in the discussion. Besides, the States demanded the right to regulate time, place, and manner did they claim that of creating an interregnum in the Government? Among the most extravagant champions of their independence, was one to be found who considered that as a high privilege, an incommunicable attribute of sovereignty? It was, therefore, easy to explain the fact thus relied on by gentlemen, consistently with the view which he had presented; and he again reminded the House of the cardinal principle of interpretation which .required them to lean in favor of admitting every part of the people to its share in the legislative power of the country. But conceding that, had there been no election law in Mississippi, there would have been a failure of representation, how did that affect the case of an election held under a law, as he had already observed, in exact conformity with it? Had that statute, which actually provides for elections to fill up vacancies, gone on to authorize the Executive to issue his writ in the event of an extraordinary session, it would not have been disputed but that the election had been legal. It has done every thing but that, and yet the omission of such an authority can be supposed to vitiate it. But, in fact, that authorization, had it been expressly given, would have been, according to his previous reasoning, merely superfluous-expressio coram quæ tacite insuntfor the Executive derives his power to issue a writ in such a case from the constitution of the United States, and that power could neither be increased nor diminished by any act of the State. Admitting, then, for the sake of the argument, that it could not have been exercised in the absence of all State legislation on the subject, yet here the State legislation being complete, his power wanted nothing to give it full effect. He issued his writ, and it was executed under the statute. So the President and Senate may make a treaty without consulting the House of Representatives, but should an appropriation be necessary to its fulfilment, the House has the constitutional power of withholding it. Yet the treaty-making power was a substantive, and, except in the case mentioned, an independent one; and, had the supply been voted in advance, it is plain that the House


* In Hodge's case, the Governor of Pennsylvania fixed the time of the election, and the House ruled that it was competent for him to do 99, the statute containing no provision on the subject.

[OCT. 2, 1837.

would have no sort of control over its exercise. The dis-
tinction is between sharing in a power, and disposing of
the means necessary to its effectual operation. The par-
allel appeared to him to be exact.

As to the precedents cited from the Senate, he contended
that they did not apply. First, because there is a remark-
able difference in the words of the coustitution in regard to
the filling up of vacancies in the two bodies. Secondly, be-
cause the mischiefs arising from a vacancy were far greater
in a fluctuating body than a permanent one, as he had al-
ready had occasion to observe; and, lastly and principally,
because there was a still more important distinction between
the two cases-a distinction, indeed, so important that,
even if the words were precisely the same in the two clauses,
different rules of interpretation might fairly be applied to
them. When a vacancy occurs in the Senate, the Exec-
utive of the State is authorized to make a temporary ap-
pointment, until the next meeting of the Legislature-to
make an appointment, he repeated, not to summon the
Legislature to exercise their right of choice. This was a
privilege vested in the Executive, in derogation of the com-
mon law of the subject-of the otherwise unalterable right
of the Legislatures of the States in this particular. It was,
therefore, according to well-established principles, to be
rigidly construed. On the contrary, where a vacancy oc-
curred in the House, all that the State Executive was au-
thorized to do was to issue his writ to call together the peo-
ple to fill it up. This was a provision in furtherance of
the common rights of the constituency, making no change
whatever in the relation between them and their represent-
ative, but simply preventing their being without one.
Even, therefore, were the words the same, different con-
structions might be put upon them, agreeably to well-
settled principles of legal interpretation. But how much
stronger was the case when they came to collate the two
clauses, and to find that the one which, on general princi-
ples, ought to be rigidly construed, was conceived in the
most precise terms, leaving no doubt whatever of the ex-
tent of the power thus conveyed, while the other was just
as general and comprehensive as it ought to be, if intend-
ed to protect the people completely against all possible
chance of an interregnum in the Government.

He then proceeded to notice two objections which had been very much insisted on in the debate.

It was said that, if this view of the constitution were just, every election held after the 4th of March ought to be held under a writ of the Executive, or it was utterly void; and then cases were put of elections required to be held at a certain time by a State law, which should be ordered at another by such special writ.

His answer was, in the first place, that all these difficulties arose, as he had already observed, not out of his reading of the constitution, but out of that adopted by gentlemen, and served very strikingly to expose its unsoundness. If the States so arranged their election laws as to preclude all possibility of an interregnum, no such conflicts could ever arise. But he was willing to go further; he denied that elections held under a law admitting of a vacancy, should an extraordinary session be called, were necessarily void, if no such call were made. To be sure, in the strict technical way of considering these things, in matters of mere meum and tuum, it might be true that such a law would be pronounced utterly null and void by a court of justicethough there was a decision of a respectable judge* declaring a law good to one intent though void as to another. But this whole subject of elections was, as he had shown, a strictly practical one, over which the House exercised its exclusive jurisdiction, with an enlightened equity and in the spirit of indulgence and accommodation. Were that House a school of sophisters or a chamber of special plead

* Washington, J.

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ers, these objections of a mere metaphysical exactness might have some weight with it; but he could see no substantial difficulty whatever in acquiescing in election laws of the States, however imperfect, so long as no practical inconvenience arose out of them. The abuse was become inveterate, and valeant quantum valere possunt. An extraordinary session was a thing of very rare occurrence; and he was willing to tolerate this irregularity in the legislation of some of the States, provided, in case of such a session, their executive authorities were enabled to issue a writ to prevent a vacancy in the House, and an interregnum in the Government. Indeed, this seems to him strongly to recommend the construction contended for; it reconciled the right of the States with those of the nation, and sacrificed to the convenience of the former every thing but their obligations to the latter-whereas a uniform law passed by Congress to regulate elections would, as he had shown, be liable to many objections.

Lastly, he opposed to the authority of so many laws passed by the new States, and the opinion of their constitutionality that had lately prevailed, the still weightier authority of contemporaneous construction. All the States which formed the constitution, he believed, without a single exception, originally ordered their elections to be held before the 4th of March. The great majority of them still did so; a very few of them had subsequently altered their laws, doubtless because, extraordinary sessions being very rarely called, they had lost sight of the principles involved in the question, and the weighty inconveniences to which he had alluded. This discussion would awaken attention to them, and he was mistaken if the decision of the House in favor of the sitting members would not be universally acquiesced in as the most safe and reasonable practical construction of two apparently conflicting clauses of the constitution.

As to the second part, viz: how far the limitation attempted to be imposed upon the tenure of the sitting members, by the restriction of it to the extra session, in the proclamation of the Governor of Mississippi, was of any legal effect, he thought it resulted inevitably from his previous reasonings that it was of none whatever.

The authority of the State Executive was defined by the constitution from which it was derived. It was to issue a writ to fill a vacancy, without any limitation or condition; not, as in the case of the Senate, to fill a vacancy which should be until a fixed period. Why this express difference, in positive provision, if there was to be none in practice?

Had the Legislature itself of Mississippi ordained that the election of members of Congress in that State should take place generally in November, &c., but should the President convene the two Houses at any earlier period after the 4th of March, limiting the term of service there-that in that case writs should issue for the extra session alone, and another set of members be chosen afterwards for the remainder of the term; every body would agree that such a law was unconstitutional; that the last words either vitiated it entirely, or must themselves be rejected as repugnant and void.

No one, at all versed in such matters, could hesitate which branch of the alternative to choose.

It was a conflict between the general interest and a particular interest, where they could not possibly be reconciled; and the latter must, of course, give way to the former. The people of Mississippi could, in such a case, have expressed their wish to be represented, if possible, on certain terms; but, at all events, to be represented. The House would have to choose between rejecting their members altogether, or admitting them on the conditions prescribed by the constitution. He thought there could be no doubt which it should do, and that every analogy of law, every presumption of common sense, required that the constitu

[H. of R.

tional limitation should be rejected, and not the constitutional act. He compared it to a gift of land to a man and his heirs, with a proviso that it should not be subject to his debts or disposal; a proviso simply void.

He had put the case as strongly as possible for the opposite side. He supposed the people themselves, through their Legislature, to have attempted to impose this unconstitutional limitation upon the tenure of members of Congress-and we there had shown that it was of no effect whatever. He concluded by showing that the objection applied a multo fortiori to a proclamation or writ of the Executive of the State. In that case, the people must be presumed to have acted on their own knowledge of the constitution, (which, also, they are presumed, as every body is presumed, to know,) and not on the mistaken views, or arbitrary behests of the Governor.

This point, he repeated, appeared to him perfectly clear. He had no doubt whatever, that if the vacancy were properly filled under a writ from the Executive, it was filled both by the letter and the spirit of the constitution, for the whole term, which no State has any color of right either to divide or to prolong. He might be the more confident in this opinion, because it had been repeatedly established by the highest tribunal in South Carolina, in analogous cases. In those cases, officers whose term of service was defined in the constitution of the States, but who have been commissioned for a different term, had uniformly been remitted to their constitutional tenure.

On the whole, Mr. L. concluded that the sitting members were duly elected for the whole 25th Congress; and, after adding a few words, touching the part which Mr. Claiborne had taken in the North Carolina election as entitling his case to the candid examination of the House, without distinction of parties, resumed his seat.

Mr. UNDERWOOD said that, in reference to this particular election, he could suggest a plausible reason why the present members should retain their seats-a reason which had not as yet been urged, and to which he confessed he should be puzzled to find an objection. It was this: the House of Representatives was composed of membere chosen every second year; and the constitution said that the States should regulate the manner and time of choosing them, unless Congress should interfere. The State of Mississippi had acted in accordance with this provision, and had elected her Representatives to serve for the ensuing two years. The time of their election had not yet expired, and if they had been permitted to retain their seats to this period, in that view of the case he would confess that if the objection were urged, he should be puzzled to set it aside. Under the letter of the constitution there was nothing to prohibit it.

Mr. MASON, of Ohio, thought that, if the Governor of the State of Mississippi, with all his legal knowledge, both of the State law and that of the constitution, was of opinion that the terms of election would expire with the present session, (and that was his opinion, he having inserted a clause in the writ to that effect,) then it would be a fair inference to suppose that the people of the State of Mississippi had a similar impression.

Mr. GHOLSON hoped the gentleman would allow him to state that, at the time of his and his colleague's election, there was not the slightest doubt among the people of Mississippi but that, whoever were elected, were elected for the whole term of the twenty-fifth Congress.

Mr. MASON disclaimed any disrespect to the gentlemen from that State, but had merely stated what, in his opinion, was a fair inference, without knowing any thing about facts. He then went on to give his reasons why he could not vote for the resolution reported by the commitAfter which,


On motion of Mr. HAYNES, The House adjourned.

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Mr. HAYNES said that, until particular circumstances had called his attention to the subject of discussion yesterday, he had not intended to participate in it.

In proceeding to examine the claim of the sitting members from the State of Mississippi to seats in this House, two points were presented for consideration. The first and most important is, did such a vacancy exist in the representation as to authorize the Governor to issue his writ of election for filling it? And the second is, admitting such vacancy to have existed, how far is the valid ity of the election affected by its being limited to the present extra session of Congress by the proclamation of the Governor?

In considering the first question-the question of vacancy--and in the various definitions which honorable gentlemen had given of that term, he thought they had confined themselves to too nice and rigid a technicality. In the clause of the constitution which confers upon the Governor of a State the right, and which imposes on him the duty, to order an election to fill a vacancy in this House, no term of limitation is used restricting that right and that duty to any particular set of circumstances whatsoever. The words of the constitution are: "When vacancies happen in the representation of a State, the Executive authority thereof shall issue writs of election to fill such vacancies." Could language be more broad than that employed by the federal convention in empowering the Governor of a State to fill vacancies in this House? It certainly could not. But, in arriving at a conclusion upon the subject of vacancy or no vacancy, it appeared to him that gentlemen had carried to the consideration of the causes which might produce such vacancy, the same narrow and erroneous notions which had governed their interpretation of the term vacancy itself. They had confined those causes exclusively to the act of the individual incumbent, or the providence of God acting upon him, when it should have been equally applied to those whose duty it should be to see that no vacancy should be suffered to exist without having it immediately filled.

To enable us to arrive at a just conclusion of what was meant by the federal convention in conferring upon the Governor of a State the power of causing vacancies in this House to be filled, it is necessary to inquire into the motive of that body in organizing the Congress of the United States. And what was that motive? In announcing that motive, he would place himself upon ground which he was very sure no gentleman would controvert: that, in creating the House of Representatives, as well as the Senate, it was the purpose of the convention, in each case, to create a perpetual office. That this was the office, is the necessary consequence of their high purpose to create a perpetual Government. They gave to the Senators the term of six, and to the Representatives the term of two years. But as a consequence, too obvious and inevitable to be contested, of creating a perpetual office to carry on a perpetual Government, the succession must also be perpetual. In proof of such intention, various considerations, of a character too irresistible to be denied, may be presented to the consideration of the House. In setting the new system in motion, its operation commenced on the 4th of March, 1789; thus fixing the time from which the constitutional term of the members of the Senate and House of Representatives should be computed. All the elections to Congress were completed in anticipation of it; and, on that day, if he was not greatly mistaken, was the first ses

[Oct. 3, 1837.

sion of the first Congress commenced, thus fixing the starting point for calculating the commencement of every suc cessive term of service in this House.

In ascertaining the intention of the parties to contract, whether public or private, we might derive instruction from a reference to their practice under it. There 'were thirteen States concerned in forming the federal constitution, seven of which, together with two others since formed of portions of them, Maine, Massachusetts, Vermont, New York, New Jersey, Pennsylvania, Delaware, South Carolina, and Georgia, now keep up a perpetual succession in this House, sending here one hundred and eighteen out of the one hundred and seventy members who represent the old thirteen States. The intention to preserve the perpetual succession already adverted to, is as plainly indicated in the power conferred upon the Governor of a State to fill vacancies, and that reserved to Congress to legislate in default of State legislation, as it well could have been, so far from there being such repugnance between them as gentlemen have contended for.

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The language of the constitution is, "the times, places, and manner of holding elections of Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing Senators.' For what purpose could the power be reserved to Congress over time and manner of choosing Senators, and time, manner, and place of choosing Representatives, and the power to fill vacancies conferred on the Governors of the States, unless it was for the purpose of keeping those offices constantly filled? It would seem to be impossible to forego the conclusion that this was the purpose of the convention, and no other. In considering this point, gentlemen seemed to him to have erred in taking it for granted that Congress and the States had done every thing required of them by the constitution, when there had, according to his view of the subject, been a glaring omission by both, in all cases in which the election of Representatives in Congress has been postponed beyond the day on which the constitutional term commences biennially, counting from the 4th day of March, 1789. He therefore came to the conclusion, which he did not believe a proper examination of the subject could resist, that a perpetual office having been created, perpetual succession must follow as an inevitable consequence; and whenever such perpetual succession is broken, either by the act of the incumbent or the constituent body entitled to fill it, a vacancy existed in the contemplation of the constitution, which it is the fight, and not only the right, but the duty, of the Governor to cause to be filled, by issuing his writ of election.

But to show the mischievous consequences of the opposite doctrine, it would be sufficient to state that there was an actual House of Representatives in existence, on the 4th of March last, by the previous election of more than one hundred and forty members, making a constitutional quorum for the transaction of business. Suppose some great national contingency had then made it the duty of the President to convene Congress at the earliest practicable period. There was a constitutional quorum for the transaction of business in existence; and no one can deny the constitutional power of the Executive, under the contingency supposed, to call them together. But although a quorum might have been so convened, and might constitutionally have proceeded to transact the public businesa, a majority of the States would have remained unrepresented for months, unless their respective Governors had issued writs of election, according to the plain intent and meaning of the clause of the constitution requiring them to issue writs of election for filling vacancies in this body.

But there is another view of the subject which bears upon this question. It has been contended that, as the

Oct. 3, 1837.]

Mississippi Election.

[H. OF R.

be waste of words to discuss it. There was a vacancy, and a vacancy running to the close of the Congressional term. The Governor was not only authorized, but required, to issue his writ of election to fill it. He did issue that writ, and because of the attempt to limit the term to the present session, will any one seriously urge that the whole proceeding is vitiated by it?


For whose benefit was that election ordered to take place? For the people of Mississippi. By whom was it conducted? By the people who were interested in it. And, so far as we are informed, the whole canvass was conducted with a perfect understanding, that the election would cover the remainder of the term of the twenty-fifth Congress. And, more, the canvass was animated, the election was full, and decided by a large majority. then will have the hardihood to say, because the Governor, in performing his constitutional duty of ordering an election to fill a vacancy, attempted to limit and control the duration of that vacancy, that the full and free expression of the public will of the State of Mississippi shall pass unregarded in this House? For his own part, in every question involving the rights of the people, he should always be found in support of those rights to the best of his ability.

Mr. SLADE contended that neither the resolution nor the amendment took the true ground. He did not believe that the members elected were entitled to hold their seats during the entire continuance of the 25th Congress, and he did believe they were entitled to seats at the extra session; and if any gentleman would bring forward a proposition to this effect, he would vote for it. He was not in favor of the amendment, but if he was compelled to decide between it and the original resolution, he would be compelled to vote for it. From the most careful examination which he could give the subject, he had come to the conclusion that such a vacancy had happened as was contemplated by the con

States are only required to elect Representatives once in two years, the time of election is, with them, wholly a matter of discretion. But this is certainly an erroneous view of the subject, as that discretion was plainly intended to be limited by the necessity of the case; the necessity of keeping a perpetual succession unbroken and entire. By the constitution, no day was fixed for commencing the operations of the new Government. That was settled by an ordinance of the Congress which ceased to exist the moment the federal constitution went into operation; and the 4th day of March, 1789, was the day appointed by them. As the constitution fixed the representative term at two years, and as that term was to date its commencement at the 4th of March, the elections in the several States were intended to conform to it. If this principle should not govern, and a majority of the States postpone, as they now postpone, their elections beyond the day on which the term commences, their Representatives are not elected for the term prescribed by the constitution; and hence we arrive at the result, that in all such cases there is a vacancy, and such a vacancy as is contemplated by the constitution in the clause empowering and requiring their Governors to fill vacancies. If, then, by the negligence of those States and of Congress, the perpetuity of the succession has been broken, how can that deprive a Governor of his constitutional right, or excuse him from his high constitutional obligation to see that the vacancy shall be filled? There is certainly no conflict between the rights of the States or of Congress on the one hand, and the Governor on the other, under this view of the subject. It was made the duty of the Legislatures of the States, and in default of them of Congress, to keep up a perpetual succession in the representative body; and in the failure of either to do so, the right and the duty of the Governor of a State require of him to supply the omission. Nor is this view derogatory to the rights of the people, but in support and affirmance of them. In the case already sup-stitution. He contended that the Governor had the power posed, or a convention of Congress at the commencement of the constitutional term, according to the doctrine advanced by those who oppose the regularity of the Mississippi election on the ground that there was no vacancy, a majority of the States, under their present election laws, might remain unrepresented for months, and their constituency unheard in this body. But, according to the view presented by him, every State in the Union would be represented with no more delay than might be necessary for their Governor to convene the electors by his proclamation. The conclusion of his argument was, that as the representative office is perpetual, and as that carries with it perpetual succession, if the State Legislature shall so leave it that on the 4th of March, corresponding with the biennial commencement of the representative term in this House, any State shall be unrepresented, a vacancy has happened, on which arises the power and the obligation of the Governor to cause it to be filled. He said he was aware that this might be considered a novel doctrine; but it was the legitimate consequence of his original proposition, the perpetuity of the representative office, and its necessary result of a perpetual succession; and he had already shown that the people were deeply interested in the establishment of the doctrine. If, then, his premises and conclusion were legitimate, there was a vacancy in the representation of the State of Mississippi, requiring of the Governor to issue his writ of election for filling it; that such writ had been issued; the people had assembled at the places, and held the election in the manner required, and, as a consequence, the honorable gentlemen claiming seats in this House as Representatives from that State, are as clearly entitled to them as any members belonging to it. In regard to the second point in the case, the limitation attempted to be imposed by the Governor upon the term for which members were to be elected, it seemed to him to

to fill up this vacancy, by issuing his writ of election to fill the vacancy until the time of the regular election under the constitution of the State, and went into a lengthy argument in support of this view of the case.

Mr. TILLINGHAST thought it perfectly manifest that the people of Mississippi intended to have Representatives in Congress at the present extra session, and he was glad that by the rules of the House the gentlemen were permitted to take seats at the present session of Congress, because he was always willing to take into account the will of the constituency. It was assumed, however, that the people believed, at the time of the election, that they were electing Representatives for the twenty-fifth Congress; but this he took to be an improper assumption; because the people were only authorized by the Governor to vote for members to the extra session of Congress, and therefore it was but fair to presume that the people were not generally of opinion that they were electing members for the whole of the twenty-fifth Congress. They were led to believe, by the proclamation of the Governor, that the term of those they were voting for would expire at the time when the existing law of the State provides that the election for members of Congress should take place. He contended that it was not in the power of the Governor to authorize an election for the whole of the 25th Congress; because, if the Governor was clothed with this power, he could set aside the laws of the State entirely. He contended that the real difficulty in relation to the Mississippi election was defective legislation; because the Legislature had not provided for the exigency which might arise in case of a call of an extra session of Congress immediately after the fourth of March. It appeared to him that the proper course would have been for the Governor to call the Legislature to provide the means of filling up the vacancy which had occurred, and cited the late election in Rhode Island as an illus

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tration of his idea. There the Legislature provided for the case of an earlier election of Representatives to Congress, and no one dreamed that this difficulty would be remedied by the Governor issuing his writ of election to supply the


Mr. HOWARD addressed the Chair as follows:

I am not disposed, sir, (said Mr. H.,) to repeat arguments which have been already urged with great effect by those who have preceded me in this debate. The points involved in the case have been fully stated, and, indeed, the speech of the honorable gentleman from Virginia, [Mr. PENNYBACKER,] a member of the Committee of Elections, left but little original matter to be urged by those who might be inclined to follow him upon the same side of the ques. tion. The fairness with which he stated the case, and the logical comments which he made as he passed its different branches under review, almost exhausted the argument, and only a little gleaning can be found, here and there, lying upon the field which he traversed. He has reversed the example of the benevolent Jew in scripture, and instead of purposely leaving an occasional handful to be picked up by the humble and industrious gleaner, as a reward for patient toil, he has scarcely left enough to make, when collected, a single sheaf. Unwilling to seize upon the produce of another man's labor, by appropriating to my own use an entire shock, as is too often done in this House, I should have remained a silent spectator of the scene, if it were not that I have been induced to explore for myself a corner which has hitherto escaped observation, the result of which inquiry I will bring particularly to your notice, after some general observations upon the subject.

The facts in the case are few and admitted. The Legislature of Mississippi omitted to provide by law for holding an election for members of Congress, in case a special session of that body might be convened by the President before November, and the Governor ordered an election to be held, directing that the persons chosen should retain their seats until the recurrence of the regular election, in November, and two members are now in their seats in this body under that proceeding. Are they members of the entire twenty-fifth Congress, or for a part of it, or is the whole election void? These are the questions which we must consider, and reply to one or other of them in the affirmative. There is no other choice. We must select out of the three positions any one that we prefer, upon which our judgment can rest with the greatest degree of satisfaction. But, although we are presented with three opinions, (not concurring in the propriety of the phrase, three alternatives, I will not use it,) yet it is remarkable that, when we come to vote, we must discard one, and choose between the remaining two. A majority of the Committee of Elections have reported a resolution declaring that the election is valid, and that the members chosen under it must hold their seats for the entire term of the twenty-fifth Congress; and a minority have reported a resolution declaring the election to have been totally void. No one has proposed to amend either one, so as to obtain a vote upon the proposition that the sitting members are entitled to their seats until November, and no longer; and until some one shall offer such an amendment, there is no basis upon which those who hold such an opinion can express it by their vote, and the House, therefore, must select, according to its best judgment, one of the only two propositions before it. The gentleman from Vermont, [Mr. SLADE,] who has just addressed the Chair, showed a desire to rest his vote upon this theory, but abstained from drawing it forth from the shadowy obscurity in which it now lies, by presenting it in the form of a distinct proposition. It is not difficult to account for his reluctance to adopt the report of the minority. The high authority of one of the most distinguished jurists that our country has ever produced, and who was known to be a favorite poli

[Ост. 3, 1837.

tician with that gentleman, is directly in his path; and I am not at all surprised that his respect for the character and attainments of the late William Wirt was too strong to permit him to run counter to the recorded opinion of that distinguished man. I shall have occasion hereafter to refer particularly to that opinion, and only allude to it now to show its power in driving from a concurrence with the report of the minority all those who attach any value to his construction of the constitution, even although they take refuge in a theory so unsubstantial that no one will call upon the House for a vote upon it. It is not worth while to consume time by attacking a hypothesis in which its own friends do not appear to have the slightest confidence; but I must be permitted to remark, that the doctrines which would break up the constitutional term of service of the members of this House into any number of long or short periods, according to the humor or policy of every State, seems to be as new as it is visionary. For wise purposes, which it is easy to see, the framers of the constitution directed that we should perform the duties appertaining to our stations here for two years, and we have taken upon ourselves the high responsibility of executing these important trusts in the face of the nation, anxiously watching every step that we take. The obligation rests upon every State in the Union to be represented here, and it cannot fulfil it by instalments, by portioning out the debt which it owes to its sister States, and discharging a little at a time. The whole House has a right-the whole nation has a right-to the benefit which the experience of even some months may confer upon the members of this body. The measures which may be proposed and discussed, must be decided upon by the same individuals who have assisted in proposing and discussing them. We come in together and must go out together. We resemble, in this respect, the changes of horses in a stage coach; and the idea that a part of us can serve but for a portion of our legislative journey, then to be superseded by fresh comers, is as unfounded as it would be ridiculous to stop a coach at every mile to change a single horse in the team. But, as I have already remarked, whilst members upon this floor are using this theory in debate, no one has sufficient reliance upon its correctness to call for a vote of the House upon it. I will therefore dismiss it from further consideration.

Whilst listening to the arguments by which the friends of the two propositions before us sustained their respective opinions, there was one reflection which pressed itself upon me. It was this. Both sides agree, as they ought to do, in attaching primary importance to the wishes of the people of Mississippi, and profess themselves desirous to carry that will into effect, if they can only find out what it is. One expression of their wish is admitted on all hands. All agree that the people of that State intended to be represented here at this extra session, and made every effort in their power to be so. Those who advocate the report of the minority, and are willing to declare the election totally void, of course intend to shut the doors of this hall upon the sitting members from the moment that the resolution passes. If we adopt it to-day, they cannot come among us to-morrow, and Mississippi would have no Representatives here. So far, then, as the people of that State have expressed a clear desire, about which there is not, and cannot be, any controversy, to have a share in the important decisions of this extra session, just so far must we allow that expression to have controlling influence in the vote which we may give, provided that vote be regulated solely by a regard to their wishes. What then is the attitude of the two parts of the House? Let us see how they stand as to the observance of the will of the people of Mississippi. Two gentlemen present themselves here on the first day of the session, having filed their credentials with the clerk, and offer to be sworn in, as usual. No opposing claimant appears. No petition is presented from a single man in




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