The Congressional Globe, Volume 13, Part 2: Twenty-Eighth Congress, First Session Page: 304
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304
APPENDIX TO TttE CONGRESSIONAL GLOB®.
Feb. 1844.
28th Cong 1st Sess.
Report of the Committee of Elections—Mr. C. B. Smith.
H. of Reps.
efforts which have been made to prove that this
power is not conferred' updfci Congress by the con-
stitution, not a single authority has been produced
to show that any individual of that day denied the
construction for which we contend. Nor can such
an authority be produced. The fact that seven of
the thirteen States, which originally formed the
confederacy, recommended such an amendment of
the constitution as would preclude Congress from
the exercise of the power to contrsl or alter the
regulation's of the State legislatures, in* regard to
"the time, place, and manner" of holding the elec-
tions, is a clear and unequivocal recognition of the
existence of the power under the constitution; and
such an amendment not having been made, the
power still exists in Congress, in full force, and
wholly unimpaired. The fears entertained by the
statesmen of that day, of an improper exercise of
the power by Congress, have not been realized. It
was one of the erroneous apprehensions of the
times, growing out of a jealousy of the federal gov-
ernment on the part of the States, which time has
wholly dissipated.
The existence of the constitutional po%ver in Con-
gress to make regulations in regard to the "time,
place, and manner" of holding elections, or to
alter such regulations as are made by the States, be-
ing, as X think, clearly established, t will notice the
the objection, that the power has been imperfectly
exercised, and: that therefore the act of Congress is
a nullity. Those ;who seek to avoid the act of Con-
gress upon.the ground, contended that Congress, if
it attempted to make regulations in regard to the
time, place, or manner of holding the elections, or to
alter the regulations of the States on this subject, must
carry out the system by its own legislation; that it
cannot command the legislatures to district the
States, but must itself lay off the districts; that the
system adopted by Congress must be full and entire,
so that, under its operation, the representatives may
be elected without the aid of State laws.
The absurdity of this position, it seems to me,
must be apparent to every person. If this position
be correct, it would not be sufficient for Congress, in
the exercise of this power, to lay off the districts in
the several States, but it would be necessary also to
appoint the judges, inspectors, and clerks of the
election; to provide for making the returns and the
certificates of election; and, in short, to arrange and
carry out, in all its details, a full and entire system,
by which the elections should be conducted and the
returns made, with as much minuteness as those
matters are now provided for in the several State
laws regulating their elections. For it is apparent,
that if any of these details were omitted, the elec-
tions could not be conducted without the aid of the
State laws, and consequently the act of Congress
would be a nullity. Under this system, we should
then have, in every election precinct, two sets of
election officers—one set to conduct the election of
members of Congress, and another to conduct the
election of State and county officers. The framers
of our constitution, in conferring upon Congress
this power, certainly never contemplated that, in its
exercise, Congress should be compelled to carry out
all the minute details of an election system.
From whence do the States derive their right to
be represented upon this floor? It is certainly not
an inherent right, which they possess indepen-
dent of the constitution. The federal government
itself is but a creature of the constitution, and
all the right which the States have to be repre-
sented in Congress they derive from that instru-
ment; and they can only claim to be represented
here when they elect their representatives in con-
formity with the terms which it prescribes. The
constitution, in the second scction of the first article,
provides, that "the House of representatives shall
be composed of members chosen every second year,
by the people of the several States;" but it requires
the States to prescribe "the time, place, any man-
ner" of the elections, unless the same shall be pre-
scribed by Congress, to which a paramount author-
ity is given. Those peculiar advocates of the doc-
trine of State rights, who manifest so much alarm at
the idea of any command from the federal govern-
ment to the States, find in this part of the constitu-
tion a direct and explicit command to the States to
make these regulations. Have the States any rischt
to complain of this? Surely not. They voluntarily
entered into the federal compact, adopted the con-
stitution for their government, and pledged them-
selves to yield obedience to its requisitions.
In the sixth article of the constitution we find the
following clause:
This constitution, and the laws of the United States which
shall be made in pursuance thereof, and all treaties made or
which shall be made under the authority of the United
States, shall be the supreme law of the land, anything in the
constitution or laws of any State to the contrary notwith-
standing.
The States, then, in adopting the federal constitu-
tion, not only pledged themselves to obey its injunc-
tions, but also pledged themselves to obey the
injunctions or commands of any act which Con-
gress might pa^s " in pursuance thereof," which
by the constitution are declared to be "the supreme
law of Ae land.
The constitution prescrib.es the term for which Sen-
ators and representatives shall be elected. It de-
clares, also, that the State legislatures shall prescribe
the "time, place, and manner" of their election.
Those who denounce the apportionment act of _ the
last Congress express great horror at the, idea of a
sovereign State being commanded by the federal
government to legislate in a particular manner; yet
they recognise the validity and binding authority of
this command in the constitution, requiring the
States to legislate 'upon this subjcct. Ever since
the organization of the government, the States have
acted m conformity with this command. Is not the
act of Congress, passed in "pursuance" of the con-
stitution, of equal validity and equally obligatory
upon the States with the constitution, itself? It
would seem beyond doubt that such is the case.
Congress has not, as has been assumed, attempt-
ed to impose any command upon the States. No
penalty has been threatened or attempted'to-be im-
posed. No effort is made to interfere with their
sovereignty. Let them enjoy their sovereignty to its
fullest extent. B_ut when they, ask to share in the
administration of the federal government, to become
a part of that government through their'represents
tives in the federal Congress, they must send their
representatives upon the terms and in the manner
prescribed by that government. Congress, in the
exercise of its ■ constitutional power, has merely
prescribed a rule in regard to the manner in which
representatives shall be elected. The constitution
has prescribed some general rules, and the obliga-
tion of the States to conform to these rules in elect-
ing their representatives has never been questioned.
It has also given to Congress the power to prescribe
rules and regulations in regard to the manner, or to
alter the regulations of the States. Are not the
States, then, bound to conform to , the regulations
prescribed by Congress upon this subject? If they
do not conform to them, they have no right to claim,
to be represented upon this floor.
Congress has declared that the representatives of
the several States shall be elected by districts. New
Hampshire, Georgia, Mississippi, and Missouri,
have set the enactment of Congress at defiance, and,
in direct violation of the law, have elected their rep-
resentatives by general ticket. These representa-
tives cannot, without a nullification of the law of the
land, be admitted as members of this body.
The position advanced by the majority of the
Committee of Elections, that the act of Congress re-
quiring the representatives to be elected by districts
is a nullity, because it does not define the district
and prescribe all the regulations necessary to com-
ptete the election, could only have been conceived in
the desperate effort to nullify an act of Congress, in
the absence of any reasonable or plausible pretext to
do so. That Congress has the power under the con-
stitution to district the States, and regulate in every
other respect the "manner" of the elections, is not
denied. It was never supposed, however, by those
who framed the constitution, that Congress would
enter into the details m prescribing the manner of
elections. These it was undoubtedly supposed
would be left to the legislation of the States. Mr.
Madison, in speaking of the action of the conven-
tion, as I have before quoted, said: "it was thought
the particular regulations should be submitted to the
States, and the general regulations to Congress."
The action of Congress m this respect is strict-
ly in conformity with the opinion of that
distinguished statesman. It aspires only to pre-
scribe the general regulations, that the election
shall be by districts, while the particular regu-
lations of defining the districts, and the mode
of conducting the elections and making the
returns, is left to the States. If the States choose to
elect their representatives in conformity with the
general regulations thus prescribed by the constitu-
tion, and the act of Congress "in pursuance there-
of," their representatives may claim to be admitted
on this floor. But if they refuse to elect in confor-
mity to these regulations, those claiming to be their
representatives have no more right to be admitted
as members of this body, than would the same
number of persons elected in Canada or Texas.
Should there be a continued refusal on the part of
the States to conform to the regulations prescribed,
Congress might be driven to the necessity of exer-
cising more fully the .power which it possesses of
regulating "the time, place, and manner" of the
elections, in order to secure- a representation from
the States, and insure the continuance of the gov-
ernment.
It seems to me, Mr. Speaker, that any attempt fo
argue the constitutionality of this act of Congress is
a work of supererogation. The power is conferred
by the constitution in such explicit terms, that to ar-
gue the right of Congress to exercise it is like en-
tering into an argument to prove that two and two
make four. ' -
Reference has been made, during the course of
the debate, to the protest, signed by a number of the
members of this House, at the commencement of
the session, protesting against the right of those sen-
tlemen who claim to be the representatives of New
Hampshire, Georgia, Mississippi, and Missouri, to
participate in the deliberations of the House. The
gentlemen who signed this protest are charged with
having prejudged the case , which they were to try
and determine. Although my name is not attached
to that protest, yet I fully approve of every senti-
ment it contains. If, I had been here' at the
time it was presented, I should most cheer-
fully have signed it. I believe that those
who claim1 to be the members from the four
States referred to are here not only without title to
seats upon this floor, but without color of title.
They present to the House no certificate of election
by districts, in conformity with the law, and conse-
quently are not even prima facie members.
Had this law been enacted by any other than the
last Congress, it would not have been the subject of
as much abuse and vituperation as have been ex-
pended upon it. An extraordinary effort has been
made to prejudice the public mind against the action
of that Congress. It has been denominated, m de-
rision, the "coon Congress," and the most unmea-
sured abuse has been heaped upon its measures.
How far those who, to accomplish party purposes,
have pursued this course, will be successful in then-
object, time will determine. -1 do not wish to ap-
pear before the country as the special defender or
eulogist of the 27th Congress. Its action has be-
come a part of the history of the country; ard
when the excitement, produced by party collisions
shall have subsided, and the people shall look upon
the history of the past with an impartial an unpre-
judiced, eye, they will justly appreciate the many
salutary reforms which weie effected by its legis-
lation, and the valuable additions which were made
to our laws by its labors.
It is, Mr. Speaker, unfortunate for the country
that party spirit has attained the alarming ascenden-
cy which we have witnessed for some years past. If
we have reason to fear for the permanency of our
government and the perpetuity of our institutions,
from any cause, it is from this. The danger of par-
ty degenerating into faction is imminent and alarming.
The history of the past appeals to us, in solemn
and warning tones, to avoid, this evil. It is the fatal
rock upon which most of the republics which have,
heretofore existed have split. And can we expert,
to pursue the same course, and yet avoid the results
which have heretofore uniformly sprung from it?
Can we expect to nourish the viper in our bosom;
and not feel his fangs? Let us not lull ourselves mto
a false security by any such anticipations. Human
nature is in all ages of the world the same; and the
same causes which brought destruction upon the re-
publics of the old world must work out the same
bitter fruits with us, if not counteracted, notwith-
standing all our boasted intelligence and patriotism.
The hideous spirit of faction has indeed already, to
a most alarming extent, been developed m this coun-
try. The rigid discipline of party has already, to
an extraordinary degree, destroyed every tlnng' like
independence of opinion. Like the iron bed of Pro-
crustes, it admits of no latitude and no variation
from the party standard. The expansive or con-
tracting power is applied, until the opinions of its
votaries are brought to range with the party lines.
Opinions of the most dangerous character and the
most anti-republican tendency are advanced by par-
ty leaders, and, being incorporated into the. party
creed, receive the cordial support of al) the party
adherents. 1 fear, sir, that the history of this coun-
try will furnish additional evidence of the truth
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United States. Congress. The Congressional Globe, Volume 13, Part 2: Twenty-Eighth Congress, First Session, book, 1844; Washington D.C.. (https://texashistory.unt.edu/ark:/67531/metapth2368/m1/314/: accessed April 19, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.