The Congressional Globe, Volume 13, Part 1: Twenty-Eighth Congress, First Session Page: 256
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CONSRESStQNAl. (ifcOfifc.
that ir should be enjoined ontbe §tates;.an;d that
provision shoulAbe made, if the States failed to ex-
ercise their implied power, that it should be exer-
cised by the general government, to keep that gov-
ernment in existence- It was possible that the gov-
ernment might be brought to a stand, and therefore
another safeguard was thrown out. If the States re-
fused to exercise their power—if they were refrac-
tory—or if they were unable to make the necessary
regulations, Congress had power to supply them; and
thus the government was secured, and the people
were protected in their rights. He believed he was
right in this, and that this was the only true, legal,
constitutional exposition of the matter. Well, then,
here were the State legislatures and the general gov-
ernment vested with constitutional rights for some
purpose;- and what was it? Was it to take away
from the people the power which they possessed un-
der the second section of the constitution? Certainly
not; but to enable them to use their powers at all
times. Well, then, the proposition which he laid
down was, that it being a constitutional duty enjoin-
ed on the States to perform, to furnish these regula-
tions for the States, it was not within the competent
jurisdiction of the general government to take away
from the people those regulations with which they
had been furnished, without furnishing others. No,
their State regulations became a common-law right;
they were a high constitutional right, and could not
be abrogated and taken away without, others being
furnished; for the very reason that, if it were other-
wise, Congress itself might put an end to the Union.
Congress could not take away any of the machinery
by which these great constitutional rights were
secured to the people, without furnishing others; for
the people had constitutional rights which could not
be taken away. To illustrate this position: New
Hampshire, by its State constitution, required the
people of that State to elect five councillors,
and it enjoined 011 the State legislature the duty of
laying out the State into five Quiets for their elec-
tion. The legislature had dHo; and the people
had enjoyed the privilege of e^Kmg their counsel-
lors to this day. But (to put the case in a strong
point of view) suppose the next legislature should
absolutely repeal the district law when the next
election came, and the people met to go into an
election: would not the persons then chosen be con-
stitutional and legal councillors? The legislature,
he contended, had no right to take away these regu-
lations. They belonged to the people as a common-
law right; and they could not be taken away,
without others being supplied, for the reason that
otherwise the legislature might thus dissolve the
government. He would suppose another case, for
lllustratio'n. Suppose the present Congress should
pass a law districting all the States of this Union
into double districts, except such States as could
only be single districts, and the people should re-
fuse (as he thought they would be bound to do) to
obey that law, and the members that they elected
came to this House: would this government be
dissolved? According to the doctrine of some gen-
tlemen there, the government would be at an end. If
the doctrine of the minority report was correct, this
government would be dissolved. But he assumed
that it could have no such effect. Sitting there as
constitutional judges, and as a court, what would
be. their duty? What, to use the language of the
gentleman from Alabama, [Mr. Belser,] would
Chief Justice Marshal have said in such a case'
Why, that there was applicable to such a case
the plainest principle at law—that Congress
passed this law with the intent that the
State legislatures should carry it out; and that
until that law was obeyed, the existing State
regulations were not repealed. Why? Because it
would lead to unreasonable consequences. It never
could be intended that Congress should repeal State
legislation until the States had assembled and passed
laws to execute that act of Congress, or till Congress
itself had done it. That was a legal consequence,
and it covered the whole of this ease, and every part
of the ground there taken.
Well, he would assume another ground; and it
was, that this act of Congress was unconstitutional
and void, because it controverted the intent and de-
sign of the 4th section of the first article of the con-
stitution. Some gentleman on the other side said the
words were plain and explicit, and could not be
misunderstood; and gentlemen on his side said the
same; and yet there was a great contradiction in
their conclusions. Where, then, were they to go to
find a true exposition of this constitutional question?
He would refer to an authority which he thought
would have some weight in this House, and which
would be found in 16 Peters, 54Q, in the case of
Prigg vs. the Commonwealth of Pennsylvania:
"It will probably be found, when we look to the
character of the Constitution of the United States
itself, the objects which it seeks to attain, the pow-
ers which it confers, the duties which it enjoins, and
the rights which it secures—as well as to the known
historical fact that many of its provisions were mat-
ters of compromise of opposing interests and opin-
ions—that no uniform rule of interpretation can be
applied, which may not allow, if it do not positively
demand, many modifications in its actual application
to particular clauses. Perhaps the safest rule of interpre-
tation, after all, will be found to look to the nature
and objects of the particular powers, duties, and
rights, with all the lights and aids of contemporary
history; and to give the words of each just such op-
eration and force, consistent with their legitimate
meaning, as may fairly secure and attain the end
proposed."
Well, then, they were to go to contemporaneous
history; and what was it? He might, if his time would
permit, quote the language of Strong, and Hamilton,
and Davy, and Wilson, and Madison, and many
jthers, who were members of the convention; but he
would forbear, as they were summed up in the lan-
guage of a learned judge, whose high authority the
other side of the House would acknowledge,
though he would not be accused of leaning too
much to State sovereignty. What did he say after
recounting the whole history of this matter, speak-
ing of this fourth section?
"1. The objections, then, to the provision are not
sound and tenable. The reasons in its favor are, on
the other hand, of great force and importance. In
the first place, the power may be applied by Con-
gress to correct any negligence in a State, in regard
to elections, as well as to prevent a dissolution of
the government, by designing and refractory States,
urged 011 by some temporary excitements.
"2. In the next place, it will operate as a check in
favor of the people against any designs of a federal
Senate and their constituents, to deprive the people
of a State of their right to choose representatives.
"3. In the next place, it provides a remedy for
the evil, if any State, by reason of invasion, or
other cause, cannot have it in its power to appoint
a place where the citizens can safely meet to choose
representatives.
"4. In the last place, as the plan is but an experi-
ment, it may hereafter become important, with a view
to the regular operations of the general government,
that there should be a uniformity in the time and
manner of electing representatives and senators, so
as to prevent vacancies when there may be calls for ex-
traordinary sessions of Congress. If such a time should
occur, or such a uniformity be hereafter desirable,
Congress is the only body possessing the means to
produce it."—Story v. 2. p. 290.
Now the proposition which he assumed was, that
this law of Congress, according to the exposition giv-
en to it, was to deprive four sovereign States of this
Union of representation here; and this was in con-
travention of the design of the constitution, which
was to remedy the very evil, to meet the very exi-
gency, to overcome the very difficulty which here
presented itself. It never was designed to enable
Congress to produce this evil, and to bring about
this state of things, but to apply a remedy
when such a case should arise, and thereby
save and preserve the rights and privileges
of the people. But this act of Congress brings
about the very state of things which it was
designed that Congress should remedy when-
ever it should occur. But he could not dwell on
this point. There was, however, one thing in con-
nexion therewith to which he wished to call the at-
tention of the gentleman from South Carolina, [Mr.
Campbell,] and other gentlemen on this floor.
The gentleman from South Carolina, in his speech
—and he (Mr. N.) had had occasion to refer to it,
for it was often quoted on this floor—referred to
the State of New Hampshire, which he had the
honor in part to represent; he referred to the reso-
lutions of both branches of the legislature of New
Hampshire, by which that legislature refused to
conform to that law. The gentleman knew, then,
that the State of New Hampshire did not intend to
carry out that act of Congress; the 27th Congress,
then, was notified of what New Hampshire would
do in this matter; and he asked the gentleman from
South Carolina, and other gentlemen in this House
who were members of the 27th Congress, and who
were sworn before high Heaven to protect the con-
stitution, what was their duty? What was thai'
It was to provide regulations for the people of New-
Hampshire by which they should choose representa-
tives to occupy seats on this floor. And did they
do that? No; but by the operation of their own
law they were going to disfranchise the people of
four States. To use the significant language of a gen-
tleman from New York, they were going to "lick"
the people into obedience to a law of Congress,
which had itself neglected its duty, in the face of the
oath which its members had taken before God.
But he must proceed, and he was happy to find
himself agreeing on one point with gentlemen on the
other side. The minority of the Committee of Elec-
tions assumed that this law had the same effect as
such a law would have if passed by the.State legis-
lature of Mississippi. If that State had passed a
law providing that her representatives should be
chosen by single districts, and had there stopped, it
was said that that law would be in force, and that
the people could not elect their representatives unless
they complied with that legislation.
He was at issue with the gentlemen upon this
point. He agreed with them in their premises, but
he denied their conclusion. They declared, in their
protest, that the people of the States could not elect
their representatives, because there were no districts
assigned. This was the doctrine upon which the
whole whig party upon this floor stood. The law,
as read by the gentleman from Virginia the other
day, was applicable to this case, viz: that acts of
Parliament impossible to be performed, were of no
validity. Now how were gentlemen to extricate
themselves from this difficulty? Here was an act
which could not be performed; and it was, therefore,
of no validity whatever. Could such a law, then,
repeal the existing laws of the States? It would be
perfectly ridiculous to assume such a position.
What was the true construction of the act? Would
gentlemen maintain that it was intended to be com-
plete in itself, and that it required no action of the
State legislatures to perfect it? Every act should
have a reasonable construction. It should not be so
construed as to deprive of a right those who before
possessed it, in case it were susceptible of two con-
structions. Well, what was the construction which
they put upon this act? It repealed no law of the
States. Why? Bceause this act, standing alone,
would deprive the States of their representation. It
was not intended that it should operate any such
unreasonable consequence. But he happened to be
one of those who believed that Congress had no
right, by its own legislation or edict, to district the
States; and he asked gentlemen if they believed the
framers of the constitution had any intention to
confer such a power upon Congress? Congress had
no power to limit the qualifications of the elected;
and if they could not do this, how were they going
to abridge the qualification of voters? Who gave
Congress such a power? whence was it derived?
Another view of the case. It was the duty rf
Congress to apportion representation and direct
taxes among the several States according to their
numbers. But would it be contended that Con-
gress had the power to divide a State into districts,
and then to sub-apportion representation and direct
taxes according to the numbers of the population of
these subdivisions? Where did they get such a
power? Were they entitled to it on the flimsy pre-
text of regulating the manner of holding the elec-
tion? Such a conclusion was ridiculous; it was
never intended. The rights of the voters were co-
extensive with the rights of the clected; and he de-
sired gentlemen to make the distinction in this case.
But this ground had been travelled over so often
and so well before him, that he would leave this
part of the subject.
The, argument of the gentleman from Vermont
[Mr. Collameu] had been said by gentlemen upon
that floor to be unanswerable. The gentleman re-
ferred to the militia law passed by Congress, and
said it was a manJatory act. He would inform the
gentleman, at the risk of having the term nullifica-
tion applied to the action of his State, that that man-
datory act, in reference to the militia, had never
been executed in that State. But there was a plain
distinction between the two cases: there, there was
no forfeiture; but in the present case there was a
forfeiture—neither more nor less than absolute dis-
franchisement. There was no similarity between
them. The gentleman hold told them that the act of
Congress in regard to weights and measures was
mandatory upon the States. He was somewhat sur-
prised to hear the gentleman make the declaration
after what he had told them of his legal learning,
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United States. Congress. The Congressional Globe, Volume 13, Part 1: Twenty-Eighth Congress, First Session, book, 1844; Washington D.C.. (https://texashistory.unt.edu/ark:/67531/metapth2367/m1/280/: accessed May 14, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.