The Congressional Globe, Volume 13, Part 1: Twenty-Eighth Congress, First Session Page: 272
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entered then, fltt soriWlepgth, iritdthe<i'ri|^H ff
tliis law,and the- contest which existed at the.time
Between thewhig-party of the 27th Congress and
the President of the United States, whose recorded
reasons for signing that bill vfeff foutod in the State
Department: After giving the history of this mea-
sure, and of its contemporaneous incident^ lie pro-
ceeded to notice the operation .of the law. If it were
enforced, he said, it would occasion inevitably a dis-
solution of the Uiiioti. He spoke of the professed
devotion of one party in this country' to the consti-
tution ofthe country; but after showing that that
party; when the constitution was being formed, fa-
vored its construction on Stionarchical principles, he
said he had but little confidence in such lip service
and devotion to the democratic charter of our liber-
ties. That same party had passed this law at a
time when it could not, by any possibility, be com-
plied with by some States ■ of this Union; and yet
they were desirous to deprive certain States of this
Union of those rights which the constitution secured
to them.
The constitution of the United States, he ad-
mitted, gave the States the power to make
regulations fixing the times, places, and manner
of holding elections, and to Congress the power
to make or alter such regulations; but Con-
gress Had passed a law striking out the fran-
chise of certain States, for it was no alteration
of State regulation. In relation to that law, how-
ever, there was a difference of opinion amongst its
friends, jjy some, it was considered as a regulation
which was obligatory on the States, and by .others
it was treated as a declaration of abstract princi-
ples. He agreed with the gentlemen who held the
law to be a declaration of abstract principles, for it
was no alteration of State regulations. Congress, if
it had the power to alter State regulations, must alter
them completely or not at all; but Congress found
the States m the peaceful exercise of certain regula-
tions; and it had thought proper to denounce
them without substituting others by which the
people of the States could proceed to elect their
representatives. It was admitted that the law of
Congress was inoperative without State legislation;
but he denied that the States could help to carry
out a power which they had surrendered; and a law
which was thus incomplete in itself, without the ac-
tion of another legislative body, was of no force or
validity. Gentlemen on the other side had cited the
provisions of the constitution in relation to the mili-
tia, but he contended that that argument operated in
support of the position which he, and those who
thought with him, had taken. There the respective
duties of all parties were prescribed expressly and
unequivocally.
- Gentlemen had been most unfortunate in resort
ing to such arguments to bolster up their cause.
He came, tnen, to the conclusion that Congress
could not supplant or destroy the regulations of the
Stales, without supplying the place of those regula-
tions by others, as the consequence of such action
would be a dissolution of the Union. Secondly,
that the act of Congress, from its very nature, could
have no effect until the States had an opportunity to
act, and in the absence of that action the law was
incomplete; and there was a third point—that if the
law was not complete, and was nevertheless to be
a law of force and effect, what would be the result'
Suppose it to be entitled to force, and that it repealed
the State laws: what would be the effect? The effect
would be the dissolution of the Union. That
would be the inevitable effect of a repeal of the
State laws by which they would be prevented
from being represented in that House. Congress
dared not assume the exercise of a power which
would have this effect.
Mr. B. adverted to the analogous reasoning which
had been employed by gentlemen in the debate
upon this subject; and contended that the cases ad-
duced were not analogous to the case under
consideration. Pass such a law in regard to weights
and measures, for instance; and it would be void for
uncertainty. The gentleman from Tennessee [Mr.
Dickinson] had referred to the militia law. He
confessed that he was a little puzzled to understand
what possible similarity there could be between that
law and the one under consideration. The gentle-
man, he apprehended, was more anxious to inflict
apolitical attack upon his opponents, than to come
up and meet the constitutional question. The gen-
tleman had told them it was a contest between
the general-ticket system and the district system;
but every man in the House knew that the contest
•tfte ijetweeiytJiS 27ffi >, tlta#'-arKrsr£
exercise of'power, and the 'sovereign States of' this
Union. That was ihe contest. . It was hot a-con-
test between the general-ticket and the district sys-
tems; but the question was, whether Congress had
the power to destroy the governments ofthe States.
Mr. Cr. DAVIS then obtained the floor. After
vindicating himself,, and those who acted with him,
from the charges that had been brought against them
for having Signed the protest, and having disclaimed
any intention to give offence by remarks that he
might make, he proceeded to examine and to con-
trovert the argument that had been advanced as to
the right of the States to a representation in this
House independent of the federal constitution. He
traced to that instrument not only the right and the
power of the people to be represented here, but also
the provision as to the mode m which representatives
were to be elected.
He analyzed the two powers conferred in the
clause of the constitution on which the law in ques-
tion was based—the one a power to make regula-
tions, and the other to alter them. He contended
that precisely the same power was invested in the
State legislatures and in Congress; but that, in addi-
tion, there was the express, distinct, and substantive
power given to Congress, which comprehended the
act of Congress now in contemplation—to alter the
regulations of the States.
He examined the position assumed by Mr.
Beardsley in reference to the doctrine of concurrent
jurisdiction, and expressed partially his dissent from
it. He submitted that, whenevej^jmigress chose to
exercise the power conferred upa^Hkthc State ju-
risdiction was taken away froinSj^Bp much of the
ground as Congress had occupieffWa acted upon;
that the State authority would be excluded to the ex-
tent to which Congress had exercised its power;
and that there was the same correlative relation be-
tween Congress and the State legislature on the sub-
ject that there was between a supreme and an infe-
rior court.
He replied to the cardinal objections that had been
raised against the law, showing their fallacy; and he
argued that there was one, and only one test of its
validity, and that was, whether the law worked an
alteration of the State law. If so, it was constitu-
tional and valid. And, in this conexion, Mr. D. re-
plied to some of the arguments of Mr. Elmer.
He compared the principle of the law with cer-
tain sections of the act of 1792, (in relation to elec-
tors of President,) which could not be executed
without auxiliary legislation on the part of the States;
and he submitted that this was an unanswerable ar-
gument against so much of the objection to the law
as was involved in the proposition that it could not
execute, itself. He demonstrated what had been the
action of the States in regard to that act, (of 1792,)
and that, so far from declaring it unconstitutional,
null, or void, the State legislatures of that day, com-
posed of men fresh in knowledge of the constitution,
and of the reasons which influenced its framers in
the adoption of its various clauses, had at once sup-
plied the legislation necessary to carry out its pro-
visions, without a single objection on the ground
that the act was mandatory, or that it was void be-
cause it could not be executed within itself.
He proceeded even further than this, and contend-
ed that if the second section of the apportionment
law was void on the ground that it was mandatory,
or that it required State legislation, then the first sec-
tion of the same act was also void, inasmuch as it re-
quired State legislation as much as the second sec-
tion. The first section could not execute itself; it
required the same character of legislation. There
was not a single objection that could be raised
against the second section on the ground of its being
mandatory and not executing itself, that did not ap-
ply with equal force to the first.
He examined the argument of the majority of the
committee, so far as it was an argument of analogy,
to show that it had no just foundation, and could
not, therefore, be sustained. And he was proceed-
ing to make some general remarks, when the hour
elapsed.
Mr. C. J. INGERSOLL proposed to amend the
amendment of Mr. G. Davis, offered on a former
day, by substituting in lieu thereof the following:
that the members returned to this House from the
States of New Hampshire, Georgia, Missouri, and
Mississippi, are entitled to hold their seats.
Mr. STILES (who had yielded the floor tempo-
rarily to Mr. Ingersoll, to permit him to offer his
amendment) next addressed the House. The course
of argument pursued by the gentleman who had pre-
rendered it necessary fof
him"to reiur to the history of the formation of this
goveftimeiit, and the adoption of the constitution.
Mr. S. entered: upon a review of the circumstances
attending the adoption of the federal constitution,
showing that the Congress of the United States de-
rived its power from the people under that constitu-
tion, and that the people were the source of all the
power which Congress possessed.
Mr. S. referred' to the remark of his colleague,
[Mr. Stephens,] that he believed the second section
of the apportionment act to be constitutional, and
that the members eleeted under the general-ticket
system were illegally elected, and not entitled to
their seats; but, that considering the House, and not
himself, the constitutional judge of the returns, elec-
tions, and qualifications of its members, he had
chosen to takeTiis seat, and to vote, though he did
not consider himself constitutionally elected. What
he objected to was, that while his colleague dis-
claimed his right to his seate he exercised the privi-
leges of a member by sitting and voting in that
House, and receiving the emoluments of office. His
colleague had said that this was a matter for the
judgment of the House; but he must be permitted
to tell him that he had mistaken the tribunal. His
position involved a question not to be decided "in that
House, but in fm-o conscientia, before which high
tribunal he arraigned him, and charged him with
two high offences which his legal knowledge would
enable him to understand the nature and heinoua-
ness of—with taking that which he knew he had
no right to, and, in his own language, not the color
of a title to; and, in the next place, as an interference
with a legislative body., without a right to a seat in
it, was against the constitution, he charged him
with an offence arising out of a violation of that in-
strument which lie had sworn to support.
Mr. STEPHENS, on leave being given to ex-
plain said that matters of conscience were to be deter-
mined individually, each man for himself. The gen-
tleman had no right to judge of his (Mr. S.'s) con-
science; and he would scorn to judge of the gentle-
man's.
Mr. STILES said that he did not judge of the
gentleman's conscience—God forbid that he should.
With the very words on his lips that he had no right
to his seat there, he took the oath, and invoked the
name of the Supreme Being to support him in the
truth. Before high Heaven he vowed to support
the constitution of the United States, and then took
a seat in the House to which he declared he was not
constitutionally elected. Without presuming to be
the gentleman's judge, he would dismiss him; and,
with as much solemnity and feeling as a judge pro-
nouncing sentence on a criminal, he would say to
him, "May the Lord God Almighty have mercy on
your soul." Mr. S. then went on with the legal and
constitutional part of his argument, which he con-
tinued till the Chair announced the expiration of his
hour.
Mr. SCHENCK addressed the House against
the right of the twenty-one members to their seats,
and in favor of the constitutionality and propriety of
the second section of the apportionment act.
Mr. DROMGOOLE got the floor at a late hour,
(candlelight) and after offering an amendment
similar in effect to Mr. Ingersoll's, but containing
more precision and form in it, addressed the House
in favor of the principles contained in the report—
showing, by a variety of arguments and illustrations,
the unconstitutionality of the mandamus section of
the apportionment act, and the consequent legali-
ty of the elections held under the general-ticket sys-
tem.
Mr. BARRINGER next obtained the floor, and
gave way to
Mr. RAYNER, who moved, at half past six
o'clock, that the House adjourn. Rejected—ayes,
63, noes 84.
Mr. BARRINGER then spoke his hour in oppo-
sition to the report of the majority of the com-
mittee.
Mr. BARNARD next got the floor.
Mr. SAMPLE moved an adjournment; and the
question thereon was taken by Messrs. Schenck
and Burke, as tellers, who reported 32 m the af-
firmative, and 63 in the negative.
Some conversation ensued relative to a call of the
House.
Mr. DROMGOOLE said if the gentleman wanted
a full House to hear a speech, he would move a call
of the House, but it had not been required hitherto.
Mr. BARNARD then proceeded with his speech
in favor of the law of the last Congress.
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United States. Congress. The Congressional Globe, Volume 13, Part 1: Twenty-Eighth Congress, First Session, book, 1844; Washington D.C.. (https://texashistory.unt.edu/ark:/67531/metapth2367/m1/296/: accessed March 28, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.