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Under circumstances which may frequently exist, the notice for convening Congress may necessarily be so short as to preclude all possibility of electing members under a special act to be passed by a Legislature not in session; indeed, I doubt very much whether there was time in this case. After the President's proclamation reached Mississippi, and the Governor gave reasonable notice for convening the Legislature, I think there would have been no time left to advertise an election as required by the law of Mississippi. Besides, you must take into the account the time necessarily spent in travelling 2,000 miles, the distance from that State ‘to the seat of Government. Certain I am, there would not have been time enough, if the Legislature of that State should be as tedious in its operations as we are, Every reason seems to concur in favor of the validity of the election as it has been held under the authority of the Governor of Mississippi. The gentlemen opposed to the report seem to me as unfortunate on the score of precedent as that of reason; two cases have been cited, Kinsey Johns of Delaware, and Mr. Lanman of Connecticut, and those cases turned on principles entirely different from that before the House; both of them happened in the Senate. The case from Delaware was an appointment by the Governor to fill a vacancy, where a session of the Legislature had intervened before the appointment was made. The case from Connecticut was an appointment made in February, to fill a vacancy which would not happen until the 4th of March, thus making the appointment to fill a vacancy before the vacancy had happened. The bare statement of these cases shows at once they can have no bearing on the case before the House; they do not apply. So far from precedents being in favor of the position of gentlemen in opposition to the report, they are the other way, so far as they can have any application, and in favor of the ground taken in the report. So sensible was the gentleman from Virginia [Mr Ron Entso N] of this fact, that he had to resort to the observation, that in cases of contested elections, precedents should have but little weight; and in this I agree with him. Mr. Speaker, I have thus given the views which operated on my mind, and nothing that I have yet heard can bring me to entertain a single doubt with respect to the correctness of the resolution attached to the report of the committee. The hour of half past two having arrived, the House took the usual recess until four o'clock.
Even ING SEssion.
The House resumed the consideration of the report of the Committee of Elections, on the subject of the election in the State of Mississippi. The question being on the adoption of the resolution declaring Messrs Gholson and Claiborne entitled to their seats for the 25th Congress, and the immediately pending one being on the amendment of Mr. MAUIt r, declaring those gentlemen not duly elected— Mr. LEGARE, who was entitled to the floor, began by saying that he regretted very much that, owing to various avccations, and to incessent and fatiguing attendance in that hall, it had not been in his power to look as fully into the subject, especially with a view to precedent and authority, as he should otherwise have felt it incumbent upon him to do. He had, however, thought much of it, and would now submit the result of his reflections to the candid consideration of the House. The case, he said, presented two questions: first, whether there had occurred, in the representation of the State of Mississippi, such a vacancy as its Executive authority was required by the constitution of the United States to order an election to fill; and, secondly, supposing that question decided in the affirmative, then, whether the limitation (to the extra session) attempted to be imposed by that functionary upon the tenure by which the mem
bers elected were to hold their seats, was of any legal effect. The former of these two questions, he added, was by far the more difficult, and, indeed, the only difficult one; for he took it to be too clear for controversy, that if those gentlemen were entitled to sit there a single moment, they did and must hold their seats for the whole Congressional term, by an authority paramount not only to that of the Executive, but to the laws and the constitution of the State. And in the outset, Mr. L. said, he should assume (for he understood it to be so conceded on all hands) that this election—supposing the Governor to have had the constitutional authority to order it—had been in every particular precisely conformable to the law of the State of Mississippi in relation to the filling up of vacancies in the House; that the writ had issued in due season ; that it had been carefully published and proclaimed in every part of the State ; that the polls were held by the persons, at the places, in the manner required by the statute; that every man entitled to vote knew, or may be fairly, and must be legally, presumed to have known, that he was called to choose those who were to represent him here, and when it was and why it was, he was called to do so; that the attention of the whole people being thus awakened to the high and important matter they were summoned to pass upon, they did in fact come forth in very great strength, and gave to the sitting members a clear majority of several thousand votes over their competitors; that this result had been acquiesced in by all parties there, no protest having been made, nor so much as a whisper of dissatisfaction having reached the Chair; aud, finally, that it was only at the request of the gentleinen themselves, who had been thus authorized to demand for the people of Mississippi a voice in the public councils at that interesting juncture, that a formal inquiry into the right of that people to participate in the legislation by which they were to be bound, had been instituted at all. And then, said Mr. [.., the question was whether an election thus ordered, thus conducted, thus concluded—an election unexceptionable in every detail, complete in all its parts, decisive beyond the possibility of doubt in its results— an election expressing the sense of the voters of two Congressional districts, in the most authentic and the most unquestionable manner—without which, it is admitted, they would have been without a representative here on one of the most momentous occasions—to them, as appeared from the last week's debate, most especially so—that had ever occurred in the political history of the country ; whether such an election, he said, should be treated as a mere nullity, and the members returned under it be sent back to their constituents, then the certain consequence must be that those districts would be, for a time, utterly disfranchised ; the voice of a State (and if of one, why not of twenty 1) stifled, while her interests were disposed of by others, the integrity of the Legislature violated by the absence of one of its essential parts, a quasi interregnum created in the Goverminent itself—and why Because, forsooth, a vacancy in the whole representation of a State, when it is called for here, is no vacancy at all !—or because the same high functionary, who is expressly charged by the constitution with seeing that every casual vacancy, in the most ordinary times, should be immediately filled up by the constituency interested in it, did, with a view to prevent a total failure of all representation at a most extraordinary juncture, call the electors of a State together, (for that is the whole extent of this mighty usurpation,) to discharge the most solemn and most indispensable of all their dutics under the constitution of the United States, and to exercise their most undoubted, essential, and inalienable rights as a free people, according to the very letter of the statute in such case made and provided. He said that, thus stated in the abstract, the proposition wore to him the air of a paradox. Every body must per
ceive at once that it supposed some strange defect or irregularity in the institutions of the country, of which, a priori, he would be most unwilling to admit the existence. Whatever the rights of the people of Mississippi, considered by themselves—whatever good faith towards their co-States in the use of powers conferred upon them for the common good of the Confederacy—whatever the peace, order, and safety of the whole country—whatever substantial justice, public convenience, a practical compliance, in spirit and in truth, with the laws and the obligations of society, could do to give validity and sanctity to a popular election, was to be found in that submitted to the judgment of the House. Nothing had been, nothing could be, objected to it but what was quite formal—mere subtle ties of the summum jus. He did not mean to affirm that where provisions of the constitution or the laws, however arbitrary or however stern, were clear and imperative, the House was at liberty to depart from them, even to prevent great public inconvenience. But he did insist upon it that, in such a question as this, he that would sacrifice substance to form, the end to the means, a manifest equity to strict law, must make out a clear case. The burden of proof was upon him. Every presumption of law and reason was against the idca that any people had voluntarily ordained an anomaly so strange, a defect so dangerous, in their sundamental laws. It would not do to surmise the people out of that House. The great right of representation and the sacred duty of maintaining the Government of the Confederacy, were not to be superseded by distant inference and loose conjecture. He called upon gentlemen on the other side for proof–for the ocular proof–and should feel himself bound to give to the people of Mississippi the benefit of every doubt that might arise as to the exercise of a right so infinitely precious to themselves, and which, far from coming into collision with the rights of others, was, on the contrary, imperatively demanded by the very obligations implied and imposed by these. That the rule of construction, in respect of this fundamental right of representation, was in all cases to aim at giving estect, as far as possible, consistently with higher principles, to a fair exercise of it, appeals to the experience of every one at all versed in the history of parliamentary bodies. The House, as the judge, in the last resort, of its own privileges and those of its members, habitually decided such questions in reserence to their real merits, and the substantial justice of each particular case. The law of Parliament on this point had been expressed with such admirable precision and elegance by a gentleman of great professional reputation, lately a member of that House, that he should make no apology for substituting the language of Mr. Binney, in the case of the Kentucky election, for his own. * Ertract from Mr. Binney's speech. “What, then, ought to be the interpretation applied by the House to a law of Kentucky prescribing the manner of holding elections for Representatives in Congress! The law does not give the right of voting; it is not intended to restrain or a ridize it; its great object is to promote and secure a fair and free exercise of it. Gentlemen who argue as some who havo argued on this floor, that, being a conv onioi, and not a natural right, it does not exist unless it is exercised in the precise manner in all r spects as the State law prescribes, build their ar. guinent upon a distinction which is of no value, and confound things whi, h are essentially different. Whether the right of suffrage be na. tural or conventional is of no importance. It is a fundamenial right. Government itself, or rather a particular sorin of Government, is couventional ; and if the right of Sussiage is as good as the Government, i' nerd not be better. Being a fundamental right, secured by the constitution of Kentucky, it ought not to be, and cannot legitimately be, confounded with those provisions of law which are designed to secure its exercise. That all the provisions of an election law are parts of the qualification of an elector, and to be scrutinizel and enforced with the same strictness as qualification itself, is a josition that is not warranted by uny analogy in the law. 1) ubtless, the provisions of every statute are entitled to respect and general observance. It is the litty of those who execute the laws to respect and enforce them all. But when the argument assumes for them such an influence, as that the emission to observe any one of them becomes a defect of qualification in the voter, and obliges this House to reject as illegal the votes re. ceived while the irregularity prevailed, the construction becomes
an enormous evil. The position is radically opposed to the right of suffrage, as it also is to well-establised rules for the interpretation of statutes of this description; and it will make the right the victim of accident, ignorance, inattention, and even of fraud, in the execution of an election law, and consequently of those very precautions which were intended to secure its exercise. On the contrary, sir, neither accident, ignorance, inattention, nor even fraud in the officers of election, in omitting to comply with the Fo of the law ought, in all cases, necessarily to disappoint the right of suffrage. s". attthority of the officers was tolerably or apparently good; if the defects in form were such as did not disturb the fairness of the election, nor prevent its fundamental nature, by making it a riva roce election instead of an eloction by ballot; or, on the contrary, if, in spite of irregularities, this House can see that, according to the spirit of the law, the will of the people in the exercise of their right of suffrage has been fairly expressed, and if the State law does not expressly declare the irregularity to be fatal, then, in my apprehension, the authority of the House to judge of the election leaves it free to disregard those irregu: larities, and to give full effect to the will of the majority of qualified voters. It is free to disregard then, in deference to the posicy and spirit of the law, and is not bound by a servile attention to sorius to defeat them both.
That (continued Mr. L.) was, beyond all doubt, the true canon of interpretation in matters of election law. The great cardinal object was to fulfil, as far as possible, the will of the people, to take care of their rights, to see that he who claimed a seat there were really their chosen representative, and that he who was clearly ascertained to be their chosen representative should not be excluded on any merely technical or formal grounds. Nor was this liberality of construction in regard to the execution of such powers—supposing them of course to be clearly ascertained, and not in any degree to affect the rights of third parties—confined to the law of Parliament. It was a distinction known to the old common law as long as any record exists of its principles, that where a power was granted for private purposes, for example, to three persons, and one of them died, the other two could not execute it; but if they were commissioners for any public business, a single survivor might do whatever the whole college were authorized to do. Even the crabbed and impracticable spirit of English black-letter law yielded so far to the overruling necessities of society. That departure from the rigor of mere technical principles, from the stiffness and pedantry of forms, in favor of public convenience— carried out, by the uniform practice of all legislative bodies, to the length of regarding many provisions of election laws as rather directory to the officers charged with the fulfilment of them than essential to the validity of the acts done under them—disclosed and confirmed the rule which he had just laid down as to what ought to be the leaning of the House on that occasion. Mr. L. then proceeded to say, that although, if the view he took of that rule were just, he might, under the circumstances already stated of the election in Mississippi, almost rest the case there, or at least fairly call upon gentlemen to establish positively, and to establish clearly, that the people of that State could not be represented here; he would venture, however, to go further. He would undertake to show, negatively, that they could establish no such proposition. He could sce nothing in the constitution which was so plain, express, and imperative, as to authorize the House to deny to the people of a State their fundamental right to a voice in their own legislation. Gentlemen, better versed than he could pretend to be in the application of legal principles to practice, might see the subject in a different light, and be able to point out with precision wherein his opinion was erroneous. But, until they did so, he should feel himself bound to repeat, as he then did, that there was, in his opinion, nothing in the constitution of the United States which required at their hands such an extraordinary sacrifice of popular right, social duty, and public convenience, as would be the consequence of setting aside the election before them. He then called the attention of the House to the clauses of the constitution relating to the subject. The first was from the second section of the first article. “The House of Representatives shall be composed of
Oct. 2, 1837.]
members chosen every second year by the people of the several States,” &c. Then, after assigning to each State, until the first census should be taken, an arbitrary number of representatives, it proceeds thus: “When vacancies happen in the representation from any State, the Executive authority thereof shall issue writs of election to fill such vacancies.” The next (3d) section is as follows. “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six years,” &c. It then proceeds to divide the Senators to be chosen into three classes, and to ordain that “The seats of the Senators of the first class shall be vacated at the expiration of the second year; of the second, at the expiration of the fourth; and of the third, at the expiration of the sixth year, so that one-third may be chosen every second year; and if vacancies happen, by resignation or otherwise, during the recess of the Legislature of any State, the Executive thereof may make temporary appointments until the next meeting of the Legislature, which shall then fill such vacancies.” Now, said Mr. LegAmr, what was the object and effect of the second and third sections ! It was to constitute the Legislature—-to declare its tenure—to insure its existence. One of the Houses is to be a perpetual body, in the proper sense of that word. I was never to be wholly vacant; new members were always to be in so decided a minority that no sudden change of opinion or policy should happen from that cause alone. The Senate should guaranty, to a certain extent, stability and consistency in the course of the Government: it should keep up fixed habits, and hand down traditional opinion; it should have an esprit de corps, and the other attributes of permanent bodies. The House, on the contrary, was to be wholly renewed at shorter, but not too short intervals; for the convention dealt in no extremes of any kind. The tenure of a seat in it was to be for two years—beginning, by a resolve of the convention, on the 4th March—and for neither more nor less than two years. All its members were to come in together; they were all to go out together, and sink again into the mass of the community. If gentlemen would look into the papers of the Federalist touching this subject, they would find that nothing was more insisted on as indispensably necessary than uniformity in the tenure of that House. The celebrated author of that part of the commentary then alluded to, used language of extraordinary emphasis and positiveness in regard to it. He declares he should greatly preser a prolongation of the term to three or four years, to any irregularity in the periods at which the delegations of the different States should enter the House. Right or wrong, this view had been adopted by the convention, and it was now, beyond all shadow of doubt, the law of that branch of the Legislature, settled in conformity with the soundest theory, by constant and invariable practice, that the term of service of every member of that House began on the 4th of March, and expired on the 4th March two years afterwards. No State could, either by its ordinances or its constitution, through its Legislature or its Executive, by omission or by commission, directly or indirectly, alter this great fundamental principle. It was the corner-stone of the whole fabric; we had solemnly covenanted with one another that there should be a supreme legislative body, composed of two integral parts—the one of them, perpetually existing, the other perpetually renewed—each correcting the other in whatever exaggeration of its principle it might otherwise be exposed to, but neither capable of acting (legislatively) without the other, and the existence of the one supposing the co-ordinate, subsidiary, or, if he might so express it, supplementary existence of the other. It is a wild idea, without the semblance of support from any
sound doctrine, inconsistent with the whole scheme of the Government, to suppose that the tenure of the representative authority, thus precisely and solemnly designated by the whole people of the United States in their fundamental law, can be changed, any part of them, at their good will and pleasure. The States, and the people of the States, are bound to conform in good faith to that principle by the most sacred of all obligations, as well as by the most manifest consideration of policy. Looking, then, at these two sections together, every one must see that the object was, as he had said, to constitute the Legislature, and insure its existence and its duration. Looking at the former alone, it provides, 1st, that the House of Representatives shall be elected for two years; 2d, that whenever any vacancy shall occur in the representation from any State, the Executive authority thereof shall see to its being filled up by the people. He could not resist the conviction that they who adopted this section thought they had provided for that perpetual renewal of the House, which is necessarily presupposed by the perpetual existence of the other branch of the Legislature. The idea of a mutilated Congress is a monstrosity—it could not have occured. He was sure it had never occurred to any one of the wise men who laid the foundation of this Government in so much good faith and singleness of purpose. Were not the words of the clause comprehensive enough Was there any exception or reserve in them 1 Could there have been less They ordained elections for two years: and they further ordained that, whenever “vacancies should happen in the representation from any State,” be they what they might, they should be filled up by the people. Was not that right and proper 1 And that the people might surely be called, in a regular and certain way, to exercise that right, they imposed it as a high and solemn duty upon the heads of the State Governments themselves to all time, to see that they were so called. What limitation, he askcd again, could be pretended to be imposed upon the large and comprehensive generality of these terms ? Would it be said that this was no vacancy 4 No vacancy, when this Congress assembles under the constitution, and two districts are not represented It was like the argument of the old philosopher against the existence of motion, to be answered by the fact itself—no other answer was needed—none could be given by a plain man. There was stress laid on the verb “to happen.” Mr. Wirt's excellent opinion, which had been printed for the use of the House, had settled the legal philology of that unfortunate word forever. But, if it had not, could any one seriously pretend to speak English and deny that to have happened which actually was 3. Was it not a fact that, unless Messrs. Claiborne and Gholson were admitted to their seats, a vacancy had happened in the House ! And could it happen in the House without happening in the representation of any State 1 To him it appeared very clear, that the word “representation,” as used in the constitution, meant the abstract idea of the share of each State in the legislative power. South Carolina should have 9 Representatives out of 242. If he were asked by a foreigner what her representation was, he should apprehend him clearly, and answer, without difficulty, it was nine members—not A, B, C, or D. . It was the correlative of “direct taxation”—an ens rationis—a being existing in contemplation of law, and in the scheme of the constitution; and this interpretation reconciled, as good interpretation always did, the most exact principles of a philosophical theory with the common sense and common language of mankind. This construction seemed to be agreeable to all the admitted canons of interpretation, and to fulfil every one of their cardinal objects. 1st. It was the most simple and literal, and that is always to be adhered to if possible. 2d.
It was in furtherance of popular right, considering the people of Mississippi in their immediate relation to that House. 3d. It was equally to be favored as enforcing a high duty of the same people considered as a part of a confederacy— the duty of maintaining the Government in its integrity. 4th. It prevented immense public inconvenience; never, indeed, could the argument ab inconvenienti be stronger. He begged the House to consider the subject in this point of view. More than one difficulty presented itself in relation to it. In the first place, he would ask, was it consistent with the constitution that, in the compulsory inevitable absence of the representation of one or more States here, the others should meet and transact business? He did not mean an absence from casualty—for, of course, they cannot, consistently with the exigencies of human affairs, be taken into the account—but absence under a legal disability, and that disability approved, according to the argument, and almost imposed in the constitution itself. Had such a case ever been contemplated Will any one pretend that any provision has been made for such a case? Why not, if it be in the purview of the constitution? But what was the House to do in such a contingency now, in the opinion of some gentlemen, actually arisen Could it go on ? Ay or no? They might take either branch of the alternative. If yea, then where should the line be drawn . If the absence of one State, under such a disability, were no legal obstacle to the proceedings of this House, why should that of ten be so–nay, of twenty, provided the other six could send a quorum ? And the matter of fact was that it required actually not many more than six to compose a majority here: New York, Pennsylvania, Ohio, Virginia, North Carolina, Kentucky, Tennesse, would do it. You have then, on this supposition, a Legislature which is complete in the absence, under an invincible legal disability, of nineteen out of twenty-six of the sovereignties of whose delegates it is composed ; that legal disability being considered, like that of infancy, as a high privilege, and as guarantied by the very constitution which, at the same time, enabled others thus to take advantage of it! But if the answer were in the negative, then here was a country deliberately exposing itself to all the dangers of a complete irremediable interregnum of its whole legislative power for, it might be, nine months in every Congressional term | Did any body think that a construction lightly to be adopted which led to such consequences as these ? See what the very men who formed the constitution thought of that state of things which was now claimed as a privilege, while an attempt to prevent its immense and obvious inconveniences, by the usual exercise of popular sovereignty under the same constitution, was denounced, with a gravity almost comic, as downright usurpation and tyranny. Look into the Declaration of Independence, said Mr. L.; you will there find that among the grounds and motives of that ever-memorable step, among the facts submitted to a candid world as fully justifying revolution and civil war, is the very right claimed, it should seem, and exercised at the expense of the people of this country by the British crown. In the same catalogue with the burning of our towns, the ravaging our coasts, the destroying the lives of our countrymen, the transporting us beyond sea for trial, the bringing hither of large armies of mercenaries to complete the works of death, desolation, and tyranny, under circumstances unprecedented in history, and unworthy of the head of a civilized country, it is expressly charged that he had repeatedly dissolved legislative bodies, refusing to call them together again, whereby their powers had returned to the people for their exercise, the State remaining exposed in the meantime to all the dangers of invasion from abroad and insurrections within. That was their simple way of considering the subject; and he ventured to say that, had some public exigency still more mo
mentous and awakening occurred in the earlier part of this year, when so many States were without Representatives elect, requiring at the hands of the Executive the convening of Congress—had a sudden invasion, had a fearful servile war, had some great and alarming revolt against the laws, such as we have already seen in the history of the country, or worse, occurred, there would scarcely have been found a man to doubt but that elections held under writs issued by the Executives of those States were valid, and that the Executives were empowered to issue such writs precisely to protect society against the terrible consequences of omissions like these. On the whole, therefore, Mr. L. said he was sure the House would agree with him that he had so far made out an exceedingly strong case, and that if the election in Mississippi were to be impeached, it would not be for any thing to be found in the second and third sections of the constitution. He would next proceed to inquire how far his previous conclusions were affected by the 4th section, on which so much stress had been laid. It was as follows: “The times, places, and manner of holding elections for 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 place of choosing Senators.” “The Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day.” To which may be added the clause in the 3d section of the 2d article empowering the President “on extraordinary occasions to convene both Houses.” The question was whether the power thus granted to the States, to regulate the time, place, and manner of holding elections of representatives, was meant to be absolute and unqualified, as gentlemen seemed to imagine, or was, like all other powers, granted for accomplishing the great cardinal objects of the constitution, subject to the tacit condition of being exercised conformably to the scheme and purposes of that constitution. Every one who had weighed well the views he had already submitted to the House would, he thought, agree that it was necessarily qualified and conditional; and that the execution of it might be vicious either by excess or by defect, either by doing too much, or by doing too little. The case before the House was one, he thought, of an imperfect execution of the power. In the first place, the House would remark, that, in a strict theory, the whole subject of its own elections ought to have been absolutely within the control of the federal Government, for the same reason that any other part of its essential action—its Executive administration, for instance—had been rendered independent of the States. The relation between the members of that body and its constituents was immediate—the Government was in this respect national, and not federal. It must be regarded, therefore, as a great concession to the States to allow them even this modified right to regulate the circumstances of elections, of which the periods and the character had been unalterably determined by the second section. This, let it be remarked, was none of the reserved rights of the States; it was merely the crea-. ture and the incident of the federal constitution itself. But cogent reasons of public convenience and established usage in different States, made them naturally tenacious of the power of regulating their elections in their own way: It was matter of local detail, with which their Legislatures would be of course best acquainted. Some of them voted by ballot, others viva voce—some of them preferred what is called a general ticket, others the district system; these, and many other similar circumstances, would make the adoption of any inflexible universal rule, unless experience should prove it to be quite indispensable, very difficult, and its
- operation if adopted unequal and inconvenient. It is by no means to be wondered at, therefore, that we find the States insisting strenuously upon having the power to regulate the circumstances—the time, place, and manner—of elections, in the way which their Legislatures should judge most agreeable to their immediate constituents. But how did it follow that because, through a departure from the rigor of theoretical principles in favor of public convenience, they have a right to render the performance of their duty under the second section of the constitution as little irksome or annoying as possible to themselves, therefore they were left at perfect liberty to perform it or not, at their pleasure ? that because they may regulate the circumstances of an election, they have therefore an unqualified control over its existence, and over the tenure of the office created under it ! because, in short, they had a power under the 4th section, of which the exercise in good faith is perfectly consistent with the duties imposed in the 2d, therefore the duty is swallowed up by the power given for its fulfilment, and the great cardinal provision of the law, by one that was merely subsidiary and instrumental to it ! If an unqualified control over the whole subject of clections for Congress had been intended to be vested in the States, why impose this duty of issuing writs to fill up vacancies—all vacancies—as an article of the fundamental law of the Union, upon their Executive authoritics forever? If the general election was to be so completely in their power, that it should be claimed and proclaimed as their undoubted right to order or to omit it, why not leave it to their legislation also to take care of a few casual vacancies 1 Why mention vacancies at all ! There appeared to him but one possible conclusion, and that was, that in all cases whatsoever of vacancy in the representation from any State, when it was called for there, the executive authority should see to their being filled up by the people—because such a case as a State so arranging its election laws as purposely to create a vacancy, was not contemplated, and could not be contemplated, by those who framed the Government, on the principles he had already explained. Therefore, as he read the constitution, all elections being intended and supposed to be held before the 4th of March, all vacancies were, of course, such as every one admitted to be properly filled by writs from the Executive. This simple, natural, and fair construction reconciled or precluded all conflicts and contradictions whatever; whercas, the doctrine contended for by gentlemen was the source of those very perplexities and incongruities on which, as the House had seen, such immense stress had been laid to disprove his reading, and to which he should presently speak more particularly. The same conclusion was supported by the clauses which relate to the meeting of Congress. This is to take place at least once a year—in the absence of all legislation on the subject, on the first Monday in December; but any other day may be fixed by Congress, and the President may, by his proclamation, anticipate, whenever the public good may require it, the regular term under the law or the constitution. Now, a meeting of this House, thus called by the Executive, would be as constitutional, and, since it would generally be called under the pressure of some great exigency, at least as important as any other. Then, did any one pretend that a State would have a right to elect for only one of the two sessions of a Congress? And if a State did so, what should this House decide as to the vacancy thus created 1 That was the very question it had now to decide. For that session was as legitimate, as constitutional, as the regular session in December: and if a State had a right to contrive its laws so as to defeat or prevent the one, it had the same right in regard to the other. As a matter of right—of moral competency, at least— nobody, he was sure, for reasons already assigned, would
be extravagant enough to contend for any such arbitrary and anti-social power in the Legislatures of the States. At any rate, the wilful exercise of it was not lightly to be presumed : the fair conclusion was, in such cases as that before the House, that it was a mere omission, an oversight— an accident, in short, by which a literal interpretation of the State law would be rendered inconsistent with the paramount objects of the constitution. The vacancy must be supposed to have happened, in the ordinary sense of the term—that is, to have occurred involuntarily and casually ; and, he repeated, it was the very object of that clause in the constitution to prevent the evil consequences of such omissions and accidents. What if the election law of a State had been wholly forgotten in the hurry and bustle of a session of its Legislature ? What if, by some casualty, the great seal of the State had not been affixed to it, or some other necessary formality had been forgotten ? But, said gentlemen, all those inconveniences were foreseen and provided against by the same clause of the constitution which vests this power in the States; for it goes on to give the ultimate control over its exercise to Congress, which had only to pass a uniform law upon the subject : and it was asked, Should this extraordinary means of a Governor's writ be resorted to, when another as effectual was at hand 1 To this he answered, in the first place, that no ordinary means could preclude all casualties. Mistake, omission, and other accidents just alluded to, would occur in spite of every precaution; and why adopt a construction by which, even under the most pressing imaginable exigencies of society, they could not be obviated, when nothing whatever rendered such a construction necessary, and no inconveniences could possibly result from the opposite and more simple construction ? But, in the next place, he proceeded to deny that the reservation to Congress of the power to alter the State laws, in this particular, had the same object as the power conferred upon their Executive authorities to issue a writ for the filling up of vacancies. He admitted that stress was laid, in the discussions that took place while that constitution was under consideration, upon the necessity of reserving the ultimate control to Congress, because, otherwise, it would be competent for the States, by refusing to pass any election laws at all, to create an interregnum in the Government. But he insisted—besides that nothing is more unsafe than to construe a law, not according to its natural import, but by reference to the reported, or even the ascertained, delarations of some of its advocates at the time—that such expressions in the writing and speeches of ’88 might be reconciled, without any violence, to his reading of the constitution. Certainly, in every well-constituted State, there must be election laws—laws regulating the time, place, and manner of exercising the great fundamental right of suffrage—although, as has been shown, that right exists independently of all such laws, and has often, in the history of all free Governments, been exercised without them. Care must be taken that those circumstances be well ascertained, and notified to the electors, in order that there should be no mistake or surprise, and that the result of the election might be in fact, as it was in conclusion of law, a fair expression of the sense of the people. If an election be regularly held in conformity to law, those who vote decide for all. It goes on a necessary presumption, where proof is impossible. But if there be any ground to allege mistake or misunderstanding, or want of notice or information, it vitiates a popular election, and that presumption cannot apply. Hence, the most precise speaker or writer might very well say that to give the States an absolute control over the whole"subject of the election laws, was to make Congress dependent for its existence upon their will and pleasure; for it was not necessary here to contend (as i was thought he did) that the executive authority had