which the delegate has been so long enjoying the rights and performing the duties of a citizen-as affording a cumulative mass of evidence in favor of the rightfulness of his claim which the committee cannot otherwise than yield to. At all events, it would certainly require a more clear case than is made out by the jarring and contradictory testimony of the witnesses against him, most of whom are themselves remonstrants, to overcome the violent presumption in favor of his right which is raised by the various evidences above referred to, and the force of which but few impartial minds can fail to admit.

They therefore report, as expressive of their opinion, the following resolu tion, which they recommend for the adoption of the House:

Resolved, That David Levy, the present delegate from Florida, is now, and was at the time of his election, a citizen of the United States, residing in Florida, and is entitled to his seat in Congress as a delegate from said Territory.

The following resolutions have also been adopted in committee, at different stages of its proceedings:

Resolved, That, from the evidence taken since the last session of Congress, and received by the committee, together with that which was then on file, the committee are of opinion that Moses E. Levy, the father of David Levy, was an inhabitant of Florida on the day of the transfer of that Territory to the United States.

Resolved further, That the domicile of the father is the domicile of the son during the minority of the son, if the son be under the control and direction of the father.

A vote upon this case was never reached in the House. An attempt was made to continue the investigation, upon fresh evidence submitted, but it failed. Mr. Levy retained his seat to the close of the Congress.

THE CASE OF THE REPRESENTATIVES FROM NEW HAMPSHIRE, GEORGIA, MISSISSIPPI, AND MISSOURI,

The principles involved in this celebrated contest are clearly set forth in the majority and minority reports which follow. The House adopted neither report, but it refused to unseat any representative elected by general ticket in the four States mentioned.

IN THE HOUSE OF REPRESENTATIVES,

MARCH 15, 1842.

Mr. DOUGLAS, from the Committee on Elections, made the following report: The Committee of Elections, having had under consideration the subjects embraced in the following resolution of the House: "Resolved, That the Committee of Elections be directed to examine and report upon the certificates of election or other credentials of the members returned to serve in this house, and that they inquire and report whether the several members of this house have been elected in conformity with the Constitution and laws," submit the following report:

The second section of the first article of the Constitution provides that the representatives shall be apportioned among the several States according to their

respective numbers; and that an actual enumeration shall be made at regular periods of ten years, in such manner as Congress shall by law direct. The first section of "An act for the apportionment of representatives among the several States, according to the sixth census," approved June 25, 1842, makes the apportionment directed by the Constitution. It is a full and complete exercise of the power, and exhausts the entire authority vested in Congress by the Constitution in regard to the apportionment of representatives among the several States. The second section of the act claims to derive its validity from another portion of the Constitution relating to a different subject, and having no appropriate and legitimate connexion with the apportionment of representation. Whilst the first section is the execution of the power to apportion the representatives among the States, the second is supposed to be a partial execution of the power to prescribe the times, places, and manner of holding elections. Notwithstanding the different and distinct character of the two subjects, Congress deemed it advisable, for purposes of convenience, to embrace both in separate sections of the same act. No principle is better settled than that one portion of an enactment may be constitutional and valid, and the residue unconstitutional and void. To the constitutionality and validity of the first section of the act under consideration no objections have been made. The second section is in

the words following:

And be it further enacted, That, in each case where a State is entitled to more than one representative, the number to which each State shall be entitled, under this apportionment, shall be elected by districts composed of contiguous territory, equal in number to the number of representatives to which said State shall be entitled--no one district electing more than one representative.

The legislatures of Maine, Massachusetts, Rhode Island, Connecticut, Vermont, New York, New Jersey, Pennsylvania, Virginia, North Carolina, South Carolina, Alabama, Louisiana, Tennessee, Kentucky, Ohio, Indiana, Illinois, and Michigan, divided their respective States into as many districts as they were entitled to representatives, and made provisions for the election of one member of Congress in each district; the States of Delaware and Arkansas were entitled to but one representative each, and, of course, constituted districts of themselves, without further legislation. In each of the States enumerated, the elections were held in conformity with the State laws, and the members now occupying seats upon this floor have presented satisfactory credentials, in the usual form, of their elections respectively. No question arises, therefore, as to the legality and validity of their elections, except the two contested cases from Virginia, in each of which a special report will be made in due time. In the State of Maryland, no elections for representatives to Congress have been held. The four remaining States present entirely a different case, which requires the most anxious and deliberate consideration. The legislatures of New Hampshire, Georgia, Mississippi, and Missouri, many years ago, provided for the election of as many members of Congress as they should be entitled to, respectively, by general ticket, and have continued that plan until the present time. Considering themselves under no constitutional obligation to alter their election laws, the constitutionality and validity of which having so often been recognized and sanctioned by Congress and the country, and never questioned, they deemed it unwise and injudicious to change a system which was adapted to their condition and convenience, and had so long received the approbation of their people. Indeed, some of these States could not have conformed to the second section of the apportionment act without incurring the expense and trouble of special sessions of their legislatures; for the reason that, by virtue of their constitutions, no regular sessions of their legislatures could be held between the time of the passage of the apportionment act and the period provided by the existing laws for holding their congressional elections. All the members from those States have been elected in strict compliance with the laws of their respective States,

and according to the mode adopted in many of the States for the election of representatives to the first Congress which assembled under the Constitution, and which has prevailed in the election of members from some of the States in every succeeding Congress, including the present.

It is apparent, therefore, that the second section of the apportionment act is an attempt, by the introduction of a new principle, to subvert the entire system of legislation adopted by several States of the Union, and to compel them to conform to certain rules established by Congress for their government. This new principle has produced a conflict between the laws under which the elections have been held in these four States, and the second section of the apportionment act. The conflict is so clear, so palpable, so direct, that both cannot stand; one or the other must yield. Either the State laws and all the proceedings under them are void, or the second section of the apportionment act is invalid and inoperative. The determination of a question so delicate, so grave and momentous in its consequences, imposes upon the committee and the House a high responsibility. The principles involved, and the force of the precedent to be established, give the subject an importance which elevates it far above the ordinary considerations affecting the right of twenty members to hold seats in this house. There is not only a conflict of law, but a conflict of right, of power, of sovereignty, between the federal government and four of the independent States of this Union.

Surely these considerations will be sufficient to insure a fair and impartial decision of this question upon the true principles of the Constitution, preserving alike the just powers of the States and of the general government. The sixth article of the Constitution provides that this Constitution, and the laws of the United States which shall be made in pursuance thereof, shall be the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding. This brings us directly to the point at issue. Is the second section of the apportionment act a law, which has been made in pursuance of the Constitution of the United States, valid, operative, and binding upon the States? If the affirmative of this proposition can be successfully maintained, the State laws must yield to the paramount authority, and the elections under them be declared void. But a position which annuls the laws of four States of this Union, destroys their elections, and deprives them of their representation in the national councils, must not be assumed until its correctness be incontrovertibly established. The authority for adopting that section is supposed by its advocates to be derived from the fourth section of the first article of the Constitution of the United States, which is in these words:

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 places of choosing senators. It will be observed that the two clauses of this section differ materially in the tone in which they address the different governments. The one is commanded, and the other is permitted to act. The State legislatures shall prescribe the times, places, and manner of holding the elections; Congress may make or alter such regulations. An imperative duty rests upon the legislatures, whilst a mere privilege is granted to Congress. In the performance of this duty, the legislatures are clothed with a wide discretion, upon which the Constitution imposes no restraints. They may provide for elections by general ticket, or in districts; for voting by ballot or viva voce; for opening the polls at one place and on one day, or at different places and on different days. These, and all things pertaining to the times, places, and manner of holding elections, are confided to the wisdom and discretion of the several legislatures, to be performed in such manner as they shall deem most favorable to popular rights and just representation. The privilege allowed Congress of altering State regulations, or of making new ones, if not in terms, is certainly in spirit and design, dependH. Mis. Doc. 57-4

ent and contingent. If the legislatures of the States fail or refuse to act in the premises, or act in such a manner as will be subversive of the rights of the people and the principles of the Constitution, then this conservative power interposes, and, upon the principle of self-preservation, authorizes Congress to do that which the State legislatures ought to have done.

The history of the Constitution, and especially the section in question, shows conclusively that these were the considerations which induced the adoption of that provision.

When General Pinckney proposed in the convention which formed the Constitution that the representatives "should be elected in such manner as the legislatures of each State should direct," he urged, among other reasons in support of his plan, "that this liberty would give more satisfaction, as the legislature could then accommodate the mode to the convenience and opinions of the people."

After the substance of this provision had been fully and ably discussed, maturely considered, and unanimously adopted, the latter clause of the section conferring upon Congress the power to make regulations, or to alter those prescribed by the States, was agreed to, with an explanation at the time that "this was meant to give to the national legislature a power not only to alter the provisions of the States, but to make regulations in case the States should fail or refuse altogether."

In vindicating this provision, whilst urging upon the people of the United States the ratification of the Constitution, General Hamilton, in one of the numbers of the Federalist, placed its defence upon the same principle: "Its propriety rests upon the evidence of this plain proposition, that every government ought to contain in itself the means of its own preservation." Notwithstanding the imperative provision that the States shall prescribe the laws of election, and the mere permissive clause that Congress may make or alter them, and the construction placed upon this section at the time, by its authors, limiting and restricting its exercise to the principle of self-preservation, yet this very clause created a more violent and formidable opposition to the adoption of the Constitution than all other portions of that instrument, and greatly hazarded its final ratification by the requisite number of States.

The conventions of the States of Virginia, Massachusetts, New Hampshire, New York, Rhode Island, and South Carolina, accompanied their ratifications with a solemn protest against the power of Congress over the elections. They proposed amendments to the Constitution, changing the obnoxious provision, and recorded on their journals perpetual instructions to their representatives in Congress to urge earnestly and zealously the adoption of those amendments, and to refrain from the exercise of any power inconsistent with the principles of the proposed amendments. The amendment and instructions of the people of Virginia relating to this subject are as follows:

The Congress shall not alter, modify, or interfere in the times, places, or manner of holding elections for senators and representatives, or either of them, except when the legislature of any State shall neglect, refuse, or be disabled by invasion or rebellion to prescribe the same; and the convention do, in the name and behalf of the people of this Commonwealth, enjoin it upon their representatives in Congress to exert all their influence, and use all reasonable and legal methods, to obtain a ratification of the foregoing alterations and provisions in the manner provided by the fifth article of the said Constitution; and in all congressional laws to be passed in the mean time, to conform to the spirit of these amendments as far as the said Constitution will admit.

The amendment and the instructions adopted by the convention of Massachusetts are as follows:

The convention do, therefore, recommend that the following alterations and provisions be introduced into the said Constitution: That Congress do not exercise the powers vested in them by the fourth section of the first article, but in cases where a State shall neglect or refuse to make the regulations therein mentioned, or shall make regulations subversive of the

rights of the people to a free and equal representation in Congress, agreeably to the Constitution.

And the convention do, in the name and in behalf of the people of this Commonwealth, enjoin it upon their representatives in Congress, AT ALL TIMES, until the alterations and provisions aforesaid shall have been considered agreeably to the fifth article of the Constitution, to exert all their influence, and use all reasonable and legal methods, to obtain a ratification of the said alterations and provisions, in such manner as is provided in the said article.

It is unnecessary to quote the instructions and amendments proposed by the ratifying conventions of the other States, as they are all of similar import. The State of North Carolina refused to ratify the Constitution, unless certain amendments proposed by her convention should be adopted; one of which was as follows:

That Congress shall not alter, modify, or interfere in the times, places, or manner of holding elections for senators and representatives, or either of them, except when the legis lature of any State shall neglect, refuse, or be disabled by invasion or rebellion, to prescribe the same.

Thus we find that seven of the thirteen States then composing the Union, being the majority of the whole number, solemnly protested against the authority of Congress to establish regulations concerning the mode of election, or to alter those prescribed by the States; and that the Constitution was adopted with the understanding (and probably never would have been adopted but for the understanding) that it was never to be exerted except in the few specified

cases.

From this brief review of the history and contemporaneous exposition of this portion of the Constitution, it is evident that the convention which formed and the people who ratified that great charter of our liberties intended that the regulation of the times, places, and manner of holding the elections should be left exclusively to the legislatures of the several States, subject to the condition, only, that Congress might alter the State regulations, or make new ones, in the event that the States should refuse to act in the premises, or should legislate in such a manner as would subvert the rights of the people to a free and fair representation.

The question now to be determined, however, is one of power, and not the propriety of its exercise. Reference has been made to the proceedings of the forming and ratifying conventions, for the purpose of showing the reasons which induced the adoption of this clause, and the cases to which it was intended to be applied, rather than to negative the ultimate power of Congress to legislate upon the subject. If the power should be conceded to be plenary and supreme, to prescribe the times, places, and mode; to establish the general ticket or district system; to adopt the viva voce or ballot form of voting; and, in short, to make all such regulations as should be deemed necessary and proper to the full enjoyment of the elective franchise, still the question arises, whether the second section of the apportionment act is an exercise of this power in a manner contemplated by the Constitution, and binding upon the States.

That act does not district the States, nor provide for an election by general ticket; does not prescribe the mode of voting; does not fix the times, places, or manner of holding elections; does not make such alterations in the State laws, or enact new ones, which would enable the people to elect their representatives. It is entirely nugatory and inoperative without the aid of State legislation; and even with that aid, it has no other force or virtue than that which they impart to it. True, it says that the elections shall be by districts, and that but one representative shall be elected in each district; but how, when, and where the elections are to be held are not provided. These things are all left to the legislatures of the different States; and if those legislatures had not passed the necessary and appropriate laws, no elections could have taken place. All the elections which have occurred since the passage of this act have been held under the authority and in pursuance of the provisions of the State laws.