Register of Debates in Congress, Comprising the Leading Debates and Incidents of the First Session of the Twenty-Fifth Congress Page: 1,189
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1189
OF DEBATES IN CONGRESS.
1190
Oct. 2, 1837.]
Mississippi Election.
[H. of R.
ers, these objections of a mere metaphysical exactness might
have some weight with it; but he could see no substantial
difficulty whatever in acquiescing in election laws of the
States, however imperfect, so long as no practical incon-
venience arose out of them. The abuse was become invet-
erate, and valeant quantum, valere possunt. An extraordi-
nary session was a thing of very rare occurrence; and he
was willing to tolerate this irregularity in the legislation of
some of the States, provided, in case of such a session,
their executive authorities were enabled to issue a writ to
prevent a vacancy in the House, and an interregnum in the
Government. Indeed, this seems to him strongly to re-
commend the construction contended for; it reconciled the
right of the States with those of the nation, and sacrificed
to the convenience of the former every thing but their ob-
ligations to the latter-—whereas a uniform law passed by
Congress to regulate elections would, as he had shown, be
liable to many objections.
Lastly, he opposed to the authority of so many laws pass-
ed by the new States, and the opinion of their constitu-
tionality that had lately prevailed, the still weightier au-
thority of contemporaneous construction. All the States
which formed the constitution, he believed, without a sin-
gle exception, originally ordered their elections to be held
before the 4th of March. The great majority of them still
did so ; a very few of them had subsequently altered their
laws, doubtless because, extraordinary sessions being very
rarely called, they had lost sight of the principles involved
in the question, and the weighty inconveniences to which
he had alluded. This discussion would awaken attention
to them, and he was mistaken if the decision of the House
in favor of the sitting members would not be universally ac-
quiesced in as the most safe and reasonable practical con-
struction of two apparently conflicting clauses of the consti-
tution.
As to the second part, viz: how far the limitation at-
tempted to be imposed upon the tenure of the sitting mem-
bers, by the restriction of it to the extra session, in the
proclamation of the Governor of Mississippi, was of any le-
gal effect, he thought it resulted inevitably from his pre-
vious reasonings that it was of none whatever.
The authority of the State Executive was defined by the
constitution from which it was derived. It was to issue a
writ to fill a vacancy, without any limitation or condition ;
not, as in the case of the Senate, to fill a vacancy which
should be until a fixed period. Why this express differ-
ence, in positive provision, if there was to be none in
practice ?
Had the Legislature itself of Mississippi ordained that the
election of members of Congress in that State should take
place generally in November, &c., but should the Presi-
dent convene the two Houses at any earlier period-after the
4th of March, limiting the term of service there—that in
that case writs should issue for the extra session alone, and
another sot of members be chosen afterwards for the re-
mainder of the term; every body would agree that such a
law was unconstitutional; that the last words either vitiated
it entirely, or must themselves be rejected as repugnant
anil void.
No one, at all versed in such matters, could hesitate
which branch of the alternative to choose.
It was a conflict between the general interest and a par-
ticular interest, where they could not possibly be reconciled ;
and the latter must, of course, give way to the former.
The people of Mississippi could, in such a case, have ex-
pressed their wish to be represented, if possible, on certain
terms; but, at all events, to be represented. The House
would have to choose between rejecting their members al-
together,, or admitting them on the conditions prescribed by
the constitution. He thought there could be no doubt
which it should do, and that every analogy of law, every
presumption of common sense, required that the constitu-
tional limitation should be rejected, and not the constitu-
tional act. He compared it to a gift of land to a man and
his heirs, with a proviso that it should not be subject to his
debts or disposal; a proviso simply void.
He had put the case as strongly as possible for the op-
posite side. He supposed the people themselves, through
their Legislature, to have attempted to impose this uncon-
stitutional limitation upon the tenure of members of Con-
gress—-and we there had shown that it was of no effect
whatever. He concluded by showing that the objection
applied a mullo fortiori to a proclamation or writ of the
Executive of the State. In that case, the people must be
presumed to have acted on their own knowledge of the
constitution, (which, also, they are presumed, as every
body is presumed, to know,) and not an the mistaken
views, or arbitrary behests of the Governor.
This point, he repeated, appeared to him perfectly clear.
He had no doubt whatever, that if the vacancy were
properly filled under a writ from the Executive, it was
filled both by the letter arid the spirit of the constitution,
for the whole term, which no State has any color of right
either to divide or to prolong. He might be the more
confident in this opinion, because it had been repeatedly es-
tablished by the highest tribunal in South Carolina, in
analogous cases. In those cases, officers whose term of
service was defined in the constitution of the States, but
who have been commissioned for a different term, had, uni-
formly been remitted to their constitutional tenure.
On the whole, Mr. L. concluded that the sitting members
were duly elected for the whole 26th Congress; and, after
adding a few words, touching the part which Mr. Claiborne
had taken in the North Carolina election as entitling his
case to the candid examination of the House, without dis-
tinction of parties, resumed his seat.
Mr. UNDERWOOD said that, in reference to this par-
ticular election, he could suggest a plausible reason why
the present members should retain their seats—a reason
which had not as yet been urged, and to which he con-
fessed he should be puzzled to find an objection. It was
this: the House of Representatives was composed of mern-
bere chosen every second year; and the constitution said
that the States should regulate the manner and time of
choosing them, unless Congress should interfere. The
State of Mississippi had acted in accordance with this pro-
vision, and had elected her Representatives to serve for the
ensuing two years. The time of their election had not yet
expired, and if they had been permitted to retain their seats
to this period, in that view of the case he would confess
that if the objection were urged, he should be puzzled to
set it aside. Under the letter of the constitution there was
nothing to prohibit it.
Mr. MASON, of Ohio, thought that, if the Governor
of the State of Mississippi, with all his legal knowledge,
both of the State law and that of the constitution, was of
opinion that the terms of election would expire with the
present session, (and that was his opinion, he having in-
serted a clause in the writ to that effect,) then it would be
a fair inference to suppose that the people of the State of
Mississippi had a similar impression.
Mr. GHOLSON hoped the gentleman would allow him
to state that, at the time of his and his colleague's elec-
tion, there was not the slightest doubt among the people
of Mississippi but that, whoever were elected, were elected "
for the whole term of the twenty-fifth Congress.
Mr. MASON disclaimed any disrespect to the gentle-
men from that State, but had merely stated what, in his
opinion, was a fair inference, without knowing any thing
about facts. He then went on to give his reasons why he
could not vote for the resolution reported by the commit-
tee. After which,
On motion of Mr. HAYNES,
The House adjourned. .
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Gales, Joseph, 1761-1841. Register of Debates in Congress, Comprising the Leading Debates and Incidents of the First Session of the Twenty-Fifth Congress, book, 1837; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc30751/m1/15/: accessed March 29, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.