The Congressional Globe, Volume 13, Part 2: Twenty-Eighth Congress, First Session Page: 177
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Feb. 1844.
APiPENDIX TO THfe CONGRESSIONAL GLOBE.
'1/7
28th Cong 1st Sess.
Report of the Committee of Elections—Mr. Lumpkii,
H. of Reps
sir, is trifling with the dignity and importance of the
subject, and the interest,s involved; and does not
comport with the high-toned character of American
statesmen. Mr. Speaker, as well might a party liti-
gant in the Supreme Court of the United States,
now sitting in the other end of this Capitol, who
relics for a recovery on some defect in your statu-
tory law, or because it is unconstitutional, be termed
a disorganizes The Supreme Court itself, whose
< duty it is to determine all que%tions submitted to
them, and to pronounce on the constitutionality of
existing laws of the general government, as well as
to give force and effect to them by construction,
might, with equal propriety, be termed disorganizes
and violators of the laws, and subverters of the con-
stitution and government of the country. But, sir,
I will now proceed to address mysaif directly to the
constitutional Question that has been presented by
the report of the majority of the Committee of Elec-
tions. There are but two sections of the constitu-
tion of the United States to which I shall have occa-
sion to refer in urging and enforcing upon this
House my argument m support of my own consti-
tutional and legal right to represent the people of
Georgia on this floor, without, any additional legis-
lation on the part of the State or general govern-
ment. The first has special reference to the right of
representation, and is in the words following, to wit,
art. 1, sec. 2:
"The House of Representatives shall be com-
posed of members chosen every second year by the
people of the several States."
Here, then, sir, is the basis of that right which I
contend has been secured to the people of the sev-
eral States, and of which they can only be deprived
by laws of the general government made in the just
exercise of power granted expressly in the federal
constitution. I shall not stop here, sir, to investi-
gate the question whether this clause of the consti-
tution does not prescribe, by its very terms, that all
the members on this floor should represent the
whole people of their several States, and, therefore,
be elected by the general-ticket system; because
any argument drawn from this source would, in my
opinion, be inconclusive and unsatisfactory, because
this clause has reference to the right, and not the
mode, of representation. The next clause to which
I shall call the attention of the House has reference
to the mode of representation, and designates the
authority by which it is to be prescribed. It is the
4th section of the 1st article of the constitution, and
is in the following words:
"The times, places, and manner of holding elec-
tions for senators and representatives shall be pre-
scribed 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."
By the terms made use of in this section of
the constitution, primarily a duty is imposed upon
the legislatures of the several States, to secure a
representation to the people of each State in Con-
gress, by prescribing "the times, places, and man-
mer of holding elections for senators and represent-
atives." This clause, sir, expresses the obligation
of the States in such unqualified language as even
to imply faithlessness on the part of the State, if it
should refuse to make the regulations necessary to
secure to the people of their respective States the
right of representation fn the senatorial and rep-
resentative branches of the Congress of the United
States. This power was conferred on the legisla-
ture of the States, for the benefit of the people, and
was to be exercised and used by them to promote
their interest, wishes, and convenience. The reg-
ulation of the times, places, and manner of holding
elections, was necessarily left with that body, which
was at fiirt, and always will be, more familiar with the
wishes, interest, and convenience of .the people.
Under this clause, then, of the constitution, the le-
gislatures of the several States passed laws pre-
scribing the 'times, places, and manner of holding
eleetions in each State, immediately after the adop-
tion of the constitution. And the first Congress of
the United States that was assembled, was under
regulations made by the different State legislatures;
and from that time until now—a period of more
than fifty years—the legislatures of the States have
never refused or failed to make ample provision
for the representation of the people of their respec-
tive States in the Congress of the United States.
This constitutional obligation, that imposed an
imperative duty that could not be disregarded
without implying faithlessness to the nation-
al compact, has been, then, completely fulfilled
by the legislatures of the States, and they cannot
be arraigned and censured for any failure on their
part to comply with this primary constitutional duty.
If the State legislatures, or any one of them, had
failed, under this clause of the constitution, to have
made the necessary regulations, by not prescribing
the times, places, and manner of holding elections
for senators and representatives, then, by the terms
of the power itself, expressly granted by the second
clause of this section of the constitution, Congress
would have had the right to make all such regula-
tions as relate to the times, places, and manner of
holding elections. But, sir, I remark, in the first
plaee,in relation to the second branch of this fourth
section of the first article of the constitution, that it is
not only permissive; but, from the language used,
the power is - fully conferred on Congress to make
any regulations as to time, place, and "manner, when,
from neglect, refusal, or omission, nt> regulation ex-
ists. Thus, if the State legislatures, immediately af-
ter the adoption of the constitution, had failed to
make the necessary regulations by prescribing the
times, places, and mariner of holding elections, to
secure a representation of the people, under the
term "make," used in this clause of the constitution,
Congress would have had as full and ample power
to prescribe the times, places, and manner, as was
primarily given by the first clause in this section of
the constitution to the legislatures of the several
States of this Union. But the term "alter" is also
used in this connexion in this same clause of the
constitution; and the power is conferred, with equal
certainty, on Congress to alter existing regulations
of the State legislatures, by changing the times,
places, and manner of holding elections, as specified
in the first clause of the fourth section of the first ar-
ticle of the constitution, which I hold in my hand,
and have previously alluded to. Under this last
clause, then, which authorizes the Congress to alter
such regulations, the second section of the late ap-
portionment act was passed, and is in the following
words: "That, in every case where a State is enti-
tled under this apportionment to more than one rep-
resentative, the number to which each State shall be
entitled, shall be elected by districts, composed of
contiguous territory, equal in number to the number
of representatives to which said State may be en-
titled—no one district electing more than one repre-
sentative."
It is now contended that this second section of the
apportionment law has been made in conformity
with the constitution, and under the power given in
that instrument to Congress, to alter the State regu-
lations in respect to the times, places, and manner
of holding elections for members of the House of
Representatives Suppose we admit, for the pur-
poses of this argument, that not only the plain let-
ter of that instrument, but in strict accordance with
its spirit and intention, Congress has the right
claimed: still I shall contend that this act, so far
from altering any State regulations, cither as to
times, places, or manner, has done nothing more
than to command that the States do that which they
claim for thejgeneral government,and which I have ad-
mitted, for the purpose of this argument, is within the
power of Congress to do, through their agents alone,
and not through the States. It will be observed
that the term "time" is a unit, and the same thing may
bes aid of the term "place;" and Congress, simply by
enacting a law and prescribing the time that elec-
tions for representatives heicdfter shall be held to
be on a day certain, or on different days, it is a full
exercise of that power by Congress; and the time
prescribed by the State laws, passed by the State
legislatures under the original primary and impera-
tive power, granted in and imposed by the consti-
tution, would yield to the laws of the general gov-
ernment; and thus, by a simple enactment, the time
prescribed by the State legislatures would be changed
or altered to the time prescribed by Congress.
And the same principle of argument will apply with
equal force, and the same effect, with respect to any
alteration that may be made by Congress m pre-
scribing the places of holding election; the State
laws made under and by virtue of the primary
grant of power imposed by the constitution on the
different State legislatures, would at once yield to
the laws passed by Congress, and the places sub-
stituted would make the mode of election, so far as
time, place, and manner is concerned, perfect and
complete, without any additional legislation on the
part of the several State legislatures. " But the term
"manner" made use of in connection with the sub-
ject, embraced in this clause of the constitution; dif-
fers from the other terms of "times" and "-places"
in this—that it is used to designate a variety of dis-
tinct elements, all of which, taken together, make up
a perfect'and complete system,sufficiently ample and
enlarged to secure to the people, with the addition
of times and places, to be prescribed for holding
election, the inestimable right of constitutional
representation in the House of Representatives.
Among these elements may be numbered the
manner of casting votes, whether _vwa voce, or
in writing, or by proxy, or the qualification of
the superintendents, the election by general ticket
or by separate "districts, composed of contiguous
territory," if you please, an<sl a variety of other dif-
fering elements of an almost unlimited character; all
of which, in detail, when taken together, are included
under this,significant expression, "manner Of hold-
ing elections," which is here used in this connexion
in this clause of the constitution. I will not contend
that it is necessary that Congress, when it attempts
to exercise the power conferred under this clause of
the constitution to alter the manner of holding elec-
tions, should, as in the other instances of time and
place, exercise the full power over all subjects em-
braced within the term manner; but I do contend
that the legislation of Congress, which attempts to
interfere with the legislation of the several States,
should be so far perfect and complete as to form, by
the substitution of its own enactment, a full exercise
of all the power conferred by the constitution prima-
rily upon the legislatures of the several States, and
permissively or supervisory, if you please, on the Con-
gress of the United States. By way of illustration,
suppose A, a citizen of Georgia, devises a trust to be
executed by B, a citizen of the same State, until the
execution of the same trust shall be assumed by C,
a citizen of the District of Columbia. Now, suppose
C, having the right to assume this trust,. should,
from inconvenience growing ®ut of the great dis-
tance and the want of proper information, and other
difficulties attending the execution of this trust,
should go to B, and say to him that he "claimed it as
a right that he should execute this trust in a particu-
lar manner, under his special instructions and di-
rections. What, under such circumstances, would
be the obvious and natural reply of B to this re-
quisition? With manly independence and spirit, he
would indignantly answer: "Sir, I have executed
this trust by the authority conferred by A, and
shall continue to exercise it according to my own
pleasure and discretion, until I shall be deprived of
this right by its being assumed by you. I admit
that you have the right to assume the trust, and then
execute at as you please; until you do this, I shall
contend that you nave no right to direct or control
its execution." Suppose C endeavors to enforce his
control and direction of the execution of this trust
in the hands of B, without first assuming it himself^
in a court of chancery; and all these facts should be
set out and charged in his bill filed against B:
does any member" of this House doubt the re-
sult of such an investigation in a court of equity? Sir,,
under this statement of facts, the case presented would
never reach a formal trial. It would be 'discharged
simply on demurrer; and yet, sir, the same analogy
strikingly exists between the constitution, State le-
gislatures, and the Congress of the United States, in
relation to the still higher privilege of securing to the
people the inestimable right of representation"in this
government; and now, some of our judges who com-
pose this high constitutional tribunal have urged, in
effect, that C, without assuming the execution'of
this trust, can direct or command its execcution by
B, in a particular manner, in accordance with gener-
al terms, to be prescribed by him. Sir, to my mind,
the analogy is complete; and if so, the aigument
founded upon it must be conclusive.
But, Mr. Speaker, there is another argument aris-
ing out of the term ualter," as made use of in thw
clause of the constitution, that I desire to submit for
the consideiation of the House, which, to my-mind,
is not only conclusive, but actually settles this con-
troversy beyond the possibility of cavil or doubt.
The £reat error into which honorable gentlemen on
this floor have fallen, is, that they have, in all their
arguments, treated this term "afrer," as if it were syn-
onymous with the terms "abolish," "annul," or "re-
peal;" and I regret to find that the draftsman of the
adverse report to the claims of the sitting members
from Georgia, Mississippi, Missouri, and New
Hampshire, has fallen into the same mistake. Sir,
the term "alter," as mode use of in this connexion,
from the fact that the States already have existing laws
on the same subject, necessarily implies the substi-
tution of one mode of election for another^ to be
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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/m1/187/: accessed April 19, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.