SPEECH.

In the House of Representatives, February 13, 1844- North Carolina, South Carolina, Kentucky, Ten The following resolutions, reported from the Com-nessee, Ohio, Louisiana, Indiana, Illinois, Alabama, mittee of Elections, being under consideration: Arkansas, and Michigan, have been duly elected, Resolved, That the second section of "An act for and are entitled to seats in this House as members the apportionment of representatives among the sev- from the States aforesaid. eral States, according to the sixth census, proved June 25, 1842, is not a law made in pursu ance of the constitution of the United States, and valid, operative, and binding upon the States.

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Resolved, That all the members of this House (excepting the two contested cases from Virginia, upon which no opinion is hereby expressed) have been elected in conformity with the constitution and laws, and are entitled to their seats in this House.

"Resolved, also, That the following members from New Hampshire, to wit: Edmund Burke, John R. Reding, Moses Norris, jr., and John P. Hale, have been duly elected, and are entitled to seats in this House as members from the State aforesaid.

bers from the State aforesaid.

Resolved, also, That the following members from Mississippi, to wit: Jacob Thompson, William H. Hammett, Robert W. Roberts, and Tilghman M. Tucker, have been duly elected, and are entitled to seats in this House as members from the State

"Resolved, also, That the following members from Georgia, to wit: Edward J. Black, Alexander H. Stephens, Hugh A. Haralson, Absalom H. Chap pell, John H. Lumpkin, Howell Cobb, William H. Mr. DROMGOOLE, having obtained the floor, Stiles, and Duncan L. Clinch, have been duly electremarked that, although the usual hour of adjourned, and are entitled to seats in this House as memment had arrived, he desired no delay or indulgence, and should proceed this evening to express his views, and thus contribute to save the time of the House. He said the debate had been continued without interruption for seven entire days, and to the exclusion of all other business. The majority here occupied a responsible condition to the country. On one hand, they desired to avoid the imputation of illiberality to their opponents, and a design to evade this question, and to suppress discussion; on the other hand, they felt it to be their duty not to allow the great interests of the nation to suffer by a tediously procrastinated debate on a single subject. It was time, he said, that this debate should terminate, and that other matters, both important and indispensable, should receive our deliberate considera-portance to the States of this confederacy. We

tion.

Mr. DROMGOOLE moved to amend the resolutions reported by the committee, by striking out all after the word "Resolved," in the first resolution, and inserting, in lieu thereof, the following:

"That all the members of this House, excepting the two contested cases from the State of Virginia, (upon which no opinion is hereby expressed,) elected from the States of Maine, Massachusetts, Rhode Island, Connecticut, Vermont, New York, New Jersey, Pennsylvania, Delaware, Virginia,

aforesaid.

Missouri, to wit: John Jameson, Gustavus M. "Resolved, also, That the following members from Bower, James B. Bowlin, James H. Relfe, and James M. Hughes, have been duly elected, and are entitled to seats in this House as members from the State aforesaid."

The question before us (said Mr. D.) is one of great delicacy to ourselves, and of vital im

have to form an opinion of the constitutionality, the validity, and effect of an act of Congress, which passed both houses with the usual formalities, and received the approval of the President. We have likewise to pronounce upon the constitutionality, and sufficiency of the legislative acts of four of the sove reign States of this Union, in conformity with which the number of representatives to which they are respectively entitled, under the last apportionment, has been elected. Twenty-one members have been returned as elected, and now hold seats on this floor.

power of judging, given without dependence or qualification, is substantially superseded by the pre-judg ment of a prior Congress.

A due regard to the right of the States to exercise | States, and consequently does not affect the validity independent legislation upon matters left with them, of elections made in pursuance of them. The ques or enjoined upon them; a proper veneration for the tion of the virtue of this second section necessarily inestimable right of the people of each State to arises in judging of the elections: it is involved in choose their representatives in Congress; and ait, and cannot be separated from it. This House solemn sense of the obligation to support the consti- cannot exercise the constitutional power of judging tution of the United States, must all be in the mind's of those elections, wtihout embracing in its judg contemplation in the prosecution of our inquiries, ment an opinion of the effect of the second section. and in the formation of our final judgment. A de- The principle which would require this House to cision against the act of Congress, in this instance, recognise the sufficiency and controlling efficacy of will only declare it a brutum fulmen, and leave it a the second section, without question or examination, harmless and inoperative provision on the statute- would leave no room for deliberation in judging of book. The legislative thunder of the 27th Congress the elections, and would exact a conformable opinion will die away in empty sound, without having con- without the free exercise of thought in its formaatrained State legislation; without having affected tion. Such a principle, such a rule of decision the freedom and purity of suffrage; and without would leave the empty form of procedure-but having impaired the great State right of regulating would abrogate the substance of the power of judgpopular representation. To sustain the act-to ing of the elections. The very House charged with decide that it overwhelms, annuls, destroys the judging of the rights of its own members to seats, regulations of four States, makes void their according to their most enlightened understanding, duly certified certified elections, and utterly defeats and the best dictates of reason, and with proper retheir representation as stipulated in the com-ference to the indications of the public mind existing pact of Union, is indeed appalling in its conse- in the constituent body, is itself forestalled. The quences. Such judgment would rudely eject from this House the entire representation of these four States-twenty-one in number-who (it is not questioned) have been fairly elected. Mr. D. meant by There is-there can be-but one rule which is the phrase "fairly elected" that the elections had safe, agreeable to reason, and according with the been fairly conducted that the electors had, with- rights of all. Where the power of judging and deciout compulsion or improper interference, volunta- ding is given to any tribunal by the constitution, rily exercised their suffrage-that their votes had and the question of the constitutionality or validity been honestly counted and correctly summed up of any law is involved, that question must necessathat the returns certify the true results, and are in rily be decided, so far as it affects the case in issue; conformity with the expressed will of those who, and that decision is binding on those whose rights by the constitution, are entitled to choose represent- or privileges are to be adjudged. The power of atives. The bare statement of the case of its judging is a farce, if the faculties of the mind are to inseparable connexion with the rights of the States be dispensed with in forming a judgment; and the and of the people-and of the consequences involved oath to support the constitution is worse than an unin its decision, show the propriety of applying meaning ceremony, if, in deciding a case within those fundamental rules of construction so perspic- competent jurisdiction, an enactment deemed unconuously laid down, and conclusively enforced, by an stitutional or void is to prevail over a conscientious honorable gentleman from Georgia, [Mr. CHAPPELL.] interpretation of that sacred instrument. The solThe jealous spirit in which the States adopted the emn oath to support the constitution fails to shield constitution requires a strict construction of that in- the constitution against the spirit of encroachment, strument, so as to avoid all infringment of the rights and the progress of usurpation. If it be safe to inreserved to the States respectively, or to the people. trust to the House the power of judging of the elecThe powers of the federal government are conferred tions of its own members, there can be nothing and limited by the compact which instituted it, and monstrous in intrusting it also to examine the conto which the States are parties. It cannot exceed stitutionality and validity of the enactments both of the definition of its powers, or transcend the object Congress and of the State legislatures, upor the suband purposes of their grant without the guilt of ject of those elections. On the contrary, it has been usurpation and the crime of unlawful encroach-made clear (said Mr. D.) that it is consistent to do ment. If, upon a fair interpretation, its acts are so; that it aids in arriving at light and truth; and, in found inconsistent with the grant, unauthorized or fact, is necessarily and inseparably embraced in the forbidden by the letter of authority, then being un-power of judging. In the examination of controvert warranted, they become void and of no effect.

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ed elections in the House of Representatives, State The right of this House to pass upon the consti- laws have been put aside and disregarded, as contutionality, the force, or virtue of the second section, travening the constitution, and impairing the popudeclaring that the members of Congress from each lar right of choosing representatives. And upon State shall be elected from districts, has, in the prog- what ground can the distinction be maintained, that ress of this debate, been generally admitted. A this House may apply the test of the constitution doubt, however, has been suggested, and the right and the well-received principles of legal construcdenied by one gentleman, [Mr. VINTON of Ohio.] tion to the statutes of the States, but dare not subThis House is made expressly, by the constitution, ject the enactments of Congress upon the same subthe judge of the elections of its own members. The ject to similar scrutiny? Congress and the State levalidity of the elections of the members from four gislatures are empowered to pass laws on the subject States depends upon the constitutionality, the extent of elections. of the obligation, and the nature of the operation of this second section. If it be contrary to the constitution, if it be inoperative from any cause, and imposes no binding obligation, then it does not annul, pair, or alter the regulations prescribed in those

The several enactments of these legislative bodies upon the same subject must be construed together, subjected alike to the constitution and to the established rules of construction, and must be alike liable to stand or fall in the judgment of the tribunal made

competent to decide the elections. Otherwise, this Congress actually attempted to anticipate the action House, in judging of the elections of its own members, of this House, and to expel, in advance, by their is reduced to the strange condition of being required legislation, the members of this present House. I to admit the infallibility of a previous Congress, and have (said Mr. D.) hunted up the parchment upon acknowledge the inviolable sanctity of its enact- which was enrolled the bill, entitled "An act regu ments; whilst it may, without restraint, overrule lating the taking of testimony, in cases of contested and disregard the legislation of sovereign States. elections, and for other purposes. It was presented We have been told, Mr. Speaker, (said Mr. D.,) to the President on the 31st day of August, 1842, that this is not a party question. It is a party ques-at a quarter past 1 o'clock, the very day on which tion, sir, (said he) of the highest order. It in-the two Houses had agreed to adjourn at 2 o'clock, volves the same principles of constitutional construc-p. m. The parchment, which I have mentioned, tion which characterized parties soon after the form- had it received the signature of the "Captain," ation of the federal government. The liberal con- might well be regarded as a whig diploma. Had struction of Alexander Hamilton and his followers, the scheme in this bill succeeded in connexion with detracted from the rights of the States and the peo- the famous second section, the whig party would, ple, and tended to enlarge the powers of Congress indeed, have taken their final degree; they would and of the government generally. Jefferson and his have graduated. The other purposes mentioned in the republican followers maintained that all the powers title are first in importance, and first in location. It of the federal government were derived from the provides for the returns, requires them expressly to constitution; that Congress could exercise no pow-certify from what district the members are elected, ers but those expressly granted, and such as were forbids the clerk to enrol any as members who are necessarily embraced in them; or, in the language of not certified, or proven to be elected from single disthe constitution, were necessary and proper to carry tricts; and for want of these preliminaries, they are them into effect. To go beyond this strict limit, to have no athority to assist in the organization of was to usurp power, and to encroach upon reserved House. It failed to become a law, for the want of rights. Hence the disciples of the illustrious Jeffer- the signature of the President. And thus the grand son are peculiarly State-rights men. In this very design of the 27th Congress to expel, beforehand, case, the antagonizing principles of the two parties the members of the 28th Congress, was frustrated. are manifest. But, although it is a party question of Soon after the commencement of the third session momentous consequence, and divides the House on of the 27th Congress-to wit, on the 14th Decem-. great principles, it may be discussed without the ber, 1842--the President sent in a message explainusual excitements, without engendering animosities, ing the circumstances of the presentation of the bill and without personal animadversions. Mr. D. said, to him at the very close of the previous session, anhe was happy to remark that such, in the main, had nouncing the fact that it had not received his signa been the character of the debate. ture, and stating that he held himself uncommitted Mr. D. said, that before he attempted to examine as to his ultimate action on any similar measure, particularly the meaning of the clause of the con- should the House think proper to originate it de nostitution specifically involved in this discussion, and vo, except so far as his opinion of the unqualified the relative powers of the State and federal govern- power of the House to decide for itself upon the ments derived from it, he would be pardoned for election of its own members, had been expressed in making a very brief allusion to the celebrated pro- his extraordinary paper lodged in the Department test, and to the movement of the fifty therewith of State. The design to accomplish the pre-expul connected. He would advert to this subject, be- sion of members of this House by a statute of Concause an honorable gentleman from Tennessee [Mr. gress, passed in advance of their attendance-perDICKINSON] had made a personal reference to him in haps in advance of their election and return, in adconnexion with it. A recurrence to the past will vance of the organization or recognised being of the enable this House and the whole country to com- House having the unqualified power to decideprehend the movement. The act for the apportion- was, so far from being abandoned, commenced de ment of representatives among the States, accord- novo. On the 15th January, 1843, Mr. Halsted, (a ing to the sixth census, was approved 25th June, member from New Jersey,) in pursuance of pre1842. When the President signed this bill, hevious notice, on leave, introduced the same bill for lodged in the Department of State a paper, express-taking testimony in contested elections, and for other ing his opinion of the unqualified power of each purposes. The bill was sent to a Committee of the House to decide for itself upon the election, re- Whole House on the state of the Union. It was turns, and qualifications of its own members. The never considered or debated in committee; but the President has intimated the opinion that the House committee was discharged from its consideration on of Representatives alone, in deciding for itself the the 16th February, 1843. On the 24th of the same election, returns, and qualifications of its own mem-month, the bill was read in the House; a motion to bers, exercised an unqualified power; and, therefore, lay it on the table having failed, it was amended, on night draw in question the binding obligation upon motion of Mr. Haisted, the amendment and the or the States of the second section. The same opin-der for engrossing and reading a third time having ion had been conclusively maintained in the Senate. been carried, without debate, under the operation of The indications of popular opinion were generally the previous question; and immediately, without deand strongly adverse to obedience to the second bate, under the operation of the previous question, section. The popular movement and the popular the bill was passed. Sir, (said Mr. D.,) there was no indignation were not expressive of hostility to the sympathy for the rights of a minority; there was no district system, if the States chose to adopt it, but time allowed for discussion, such as has been libes were directed against the act as one of usurped power rally accorded on this occasion by the present ma and presumptuous dictation. A design was formedjority. The contrast cannot fail to arrest the public to forestall the judgment of this House, and pre-attention.

clude members elected to the 28th Congress from Here, then, ended the effort of the dominant party taking their seats. Yes, (said Mr. D.) the 27th of this House in the 27th Congress, to prejudge the

magistri."

elections of the 28th Congress, and enact a statutory Į dorsed on this volume) of James Madison, the virexpulsion of a portion of the members elect or to be tuous citizen, the wise statesman: "Veritas non verba elected. We hear no more of the bill to take testimony and for other purposes. It is presumed to have failed in the Senate, or to have slept the sleep of death.

ants.

And now, Mr. Speaker, (said he,) let us resort to the original text-to the constitution itself. The gentleman from Ohio [Mr. ScHENCK] who immedi-. ately preceded, announces that he stands upon the constitution and the dictionary. The dictionary, and the grammar too, (said Mr. D.,) may be advantageously consulted by that gentleman. The provision in the constitution which, at present, presents itself for our considerate interpretation, is the first paragraph of the fourth section of the first article, and is in these words:

At the commencement of the present session, however, there was exhibited the concerted design of a minority, consisting of fifty members of this House, to exclude the entire representation of four States from all participation in the organization. This effort, although it assumed the solemn form and shape of a protest, was singularly abortive. Let it be carefully collated with the past history which has been briefly reviewed. The public can be at no "The times, places, and manner of holding elecloss to discover the connexion of the movement tions of senators and representatives, shall be preand the continuation of a design, to discern its en-scribed in of each State by the legislature thereof; tire party character-to perceive the purpose, and but the Congress may at any time, by law, make comprehend the motives. The reference made to or alter such regulations, except as to the place of me, and some remarks of mine, (said Mr. D.,) by choosing senators." the gentleman from Tennessee, [Mr. DICKINSON,] The first portion of this paragraph, from the comconcerning the protestant movement at the opening mencement to the word "thereof," inclusive, applies of the session, seemed to require some notice. And exclusively to the action of the legislature of each now having received the notice to which they were State. It declares imperatively that, in each State, eminently entitled, the country may safely be trust-the times, places, and manner of holding elections, ed with the custody of these fifty political protest- shall be prescribed by the legislature. Here is a constitutional mandate positively enjoining a duty on Mr. DROMGOOLE remarked that, during the prog- the several State legislatures. The mode of perress of this discussion, the opinions and observa- forming the duty is left to the wisdom and discretions of distinguished statesmen had been quoted, tion of the legislative bodies, who are required to disand urged here as conclusive authority. The argu-charge it. The action requisite under the constitu~ ments and explanations of Madison, in the federal tion is unqualified; it is not restricted or limited; it is convention and in the Virginia convention; of Ham- not contingent; it is not made dependent on other ilton, in his essays contained in the Federalist; of authority. Whilst, then, the constitution uneconspicuous men in the several State conventions, quivocally commands the legislature of each and the proceedings and resolves of these conven- State to prescribe regulations, it authorizes no tions when ratifying the constitution-have all been interference on the part of Congress--no precept paraded, for the purpose of establishing, beyond question, the unlimited power of Congress over the time, place, and manner of holding elections in the States, and sustaining this famous second section of the apportionment act. It is not admitted that they bear the construction, to the full extent, which has been given to them. He would admit that they might be examined for explanation and illustration; that we might resort to them as sources of information; but he denied that the declarations or dicta of any, however eminent, were to be received as explicit and authoritative expositions of the meaning of the constitution, or regarded as conclusively The power over the subject, which belongs to the obligatory. Sworn to support the constitution, to State legislatures, is primary; it must originate; it that sacred instrument itself we must resort; and, is precedent in order and time to the co-existing lefrom its own language, deduce its true meaning. gislative power of Congress over the same subject. An opinion of our own (said he) must be formed, The congressional power is secondary to that of the after careful consideration, based on the conscien-States; it is ultimate in its operation, and cannot tious convictions of our judgment; and such opinion precede or dictate. This, he said, he took to be the our own, humble as we may be, cannot be sub-true grammatical construction and intended meaning stituted by the words or dictum of another with the of this provision of the constitution. The first pormost imposing name. For myself, (said he,) I must tion of the paragraph, as has been shown, gives to exercise the faculties of my own mind, however fee- each State the power to originate regulations, to preble, and give my voice in the decision of these elec-scribe--that is, to order, direct-the times, places, and tions according to my own mature and deliberate manner of holding elections. And then follows, convictions. "but the Congress may at any time, by law, make “Nullius addicius jurare in verba magistri." Were or alter such regulations, except as to the places of the opinions of others to guide us-were our judg-choosing senators." Here the duty of the State ments to be pronounced according to the authority legislatures and the power of Congress are disjuncof superior names, instead of our own sincere inter- tively and not copulatively connected. They are pretations-they could not, in foro conscientiæ, be re-contrasted as separate and different, and not coupled garded by ourselves. and united into one continuous power. The disMr. D. said (holding up a volume of the Madison junctive joins things that are contrasted with each Papers) he should adopt for his motto the words other; the copulative joins things that are congruous. which beautifully circumscribe, the initials (en-"But" announces something additional-beyond.

from that body--no dictation of terms-no direction of the provisions to be inserted. This freedom from all control is, indeed, the right of independent action. Their own judgment then, their mature deliberation, their own solemn sense of the nature of their duty, must guide their counsels, and mould their enactments. Under a solemn oath to support the constitution, to it these legislatures must look with reverence and obedience, and may not subject themselves to congressional dictation. Their duty to legislate is constitutional; and to perform this duty independently of Congress, is a manifest right.