Applying these reflections to the subject of national elections embraced in this bill, I remind gentlemen that this is a national House of Representatives. The people of my Congressional district have a right to know that a man elected in New York City is elected honestly and lawfully; for he joins in making laws for forty-five millions of people. Every citizen of the United States has an interest and a right in every election within the republic where national representatives are chosen. We insist that these laws relating to our national elections shall be enforced, not nullified; shall remain on the statute-books, and not be repealed; and that the just and legal supervision of these elections shall never again be surrendered by the government of the United States. By our consent it never shall be surrendered.

Now, Mr. Chairman, this bill is about to be launched upon its stormy passage. It goes not into unknown waters; for its fellows have been wrecked in the same sea. Its short, disastrous, and, I may add, ignoble voyage, is likely to be straight to the bottom.

:

In reply to Mr. Hurd of Ohio, on the same day, Mr. Garfield said : MR. CHAIRMAN,-Two points were made by my colleague from Ohio to which I desire to call attention. To strengthen his position, that the United States has no voters, he has quoted, as other gentlemen have quoted, the case of Minor v. Happersett.1

The question before the court in that case was, whether a provision in a State constitution which confines the right of voting to male citizens of the United States is a violation of the Fourteenth Amendment of the Constitution. The court decided that it is not; and in delivering his opinion the Chief Justice took occasion to say that "the United States has no voters in the States, of its own creation." Now, all the gentlemen on the other side who have quoted this decision have left out the words "of its own creation," which makes a very essential difference. The Constitution of the United States declares who shall vote for members of Congress, and it adopts the great body of voters whose qualifications may be or have been prescribed by the laws of the States. The power of adop 1 21 Wallace, 170.

tion is no less a great governmental power than the power of creation.

But the second point to which I wish to refer, and which has been made by several gentlemen, and markedly by my colleague, is this: that the contemporaneous construction of that clause of the Constitution which provides that Congress may at any time make or alter the regulations in regard to the time, place, and manner of holding elections, has determined that Congress can never exercise that right so long as the States make provision for it. So long as the States do not neglect or refuse to act, or are not prevented by rebellion or war from acting, it is their exclusive right to control the subject. That is what my colleague says. That is what is said, in the Record of May 29, by a distinguished member of the Senate.1

On the 21st of August, 1789, in the first House of Representatives that ever met, Mr. Burke, a member from South Carolina, offered the following as an amendment to the Constitution: "Congress shall not alter, modify, or interfere in the times, places, or manner of holding elections of Senators or Representatives, except when any State shall refuse, or neglect, or be unable, by invasion or rebellion, to make such election." 2 That was the very proposition which my colleague says is the meaning of the Constitution as it now stands. That amendment was offered in a House of Representatives nearly one half of whose members were in the Convention that framed the Constitution. That amendment was debated, and I hold in my hand the brief record of the debate. Fisher Ames of Massachusetts, approving of the clause as it now stands,

"Thought this one of the most justifiable of all the powers of Congress; it was essential to a body representing the whole community, that they should have power to regulate their own elections, in order to secure a representation from every part, and prevent any improper regulations, calculated to answer party purposes only. It is a solecism in politics to let others judge for them, and is a departure from the principles upon which the Constitution was founded. . [He thought] inadequate regulations were equally injurious as having none, and that such an amendment as was now proposed would alter the Constitution; it would vest the supreme authority in places where it was never contemplated. . . . .

"Mr. Sherman observed, that the Convention were very unanimous in

VOL. II.

1 Mr. Wallace.

46

2 Annals of Congress, Vol. I. p. 797.

passing this clause; that it was an important provision, and if it was resigned it would tend to subvert the government.

"Mr. Madison was willing to make every amendment that was required by the States, which did not tend to destroy the principles and efficacy of the Constitution; he conceived that the proposed amendment would have that tendency, he was therefore opposed to it. . . .

....

"Mr. Goodhue hoped the amendment never would obtain. . . . . Now, rather than this amendment should take effect, he would vote against all [the amendments] that had been agreed to. His greatest apprehensions were, that the State governments would oppose and thwart the general one to such a degree as finally to overturn it. Now, to guard against this evil, he wished the Federal government to possess every power necessary to its existence." 1

After a full debate, in which the doctrine of State rights was completely overwhelmed so far as involved in this amendment, the vote was taken, and twenty-three votes were given in favor of the amendment and twenty-eight votes against it. It did not get even a majority, much less a two-thirds vote, in the House; and in the Senate the subject was never called up at all. Now, who were the men that voted against it? Let me read some of their honored names: Fisher Ames, of Massachusetts; Charles Carroll of Carrollton; Clymer, of Pennsylvania, whose distinguished descendant is a member of this House; Fitzsimmons, of Pennsylvania; Muhlenberg, of Pennsylvania, who was Speaker of the first House of Representatives; Lee and Madison, of Virginia; Trumbull and Sherman, of Connecticut, — all these great names are recorded against a proposition declaring what my colleague defends as the correct interpretation of the existing clause on that subject. That is all I desire to say.

1 Annals of Congress, Vol. I. pp. 797-801.

OBEDIENCE TO LAW THE FIRST DUTY

OF CONGRESS.

SPEECH DELIVERED IN THE HOUSE OF REPRESENTATIVES, MARCH 17, 1880.

WHEN the extra session of the Forty-sixth Congress came to an end, July 1, 1879, the usual appropriations had been voted save that for the United States Marshals. After June 30, 1879, all the government business pertaining to their offices was performed by the marshals without pay and at their own expense, in the expectation that the money would be voted at the regular session. In an amendment to a deficiency bill, reported March 12, 1880, the Committee on Appropriations undertook to deal with this question. One of their amendments read, "For the payment of the fees and expenses of United States Marshals and their general deputies during the fiscal year ending June 30, 1880, $600,000." Pending the bill, Mr. Garfield addressed the Committee of the Whole in a speech in which, after touching upon an amendment that abolished the office of Public Printer and created that of Congressional Printer, he discussed the duty of Congress to obey the law. His remarks on the first topic are here omitted.

The two decisions of the Supreme Court referred to below are no doubt those of Ex parte Albert Siebold et al. and Ex parte Augustus F. Clarke. In both cases the petitioners were State judges of election, tried, convicted, and sentenced to punishment for violating Sections 5515 and 5522 of the Revised Statutes. Both cases involved the constitutionality of the election laws. Mr. Justice Bradley rendered an elaborate decision in the former case: the decision in the second was rested upon the first. Justices Field and Clifford dissented. Neither case is found in Otto's Reports, but a report is found in the Weekly Cincinnati Law Bulletin, Vol. V. pp. 125–127. The decision in both cases was rendered March 8, 1880. It is a sweeping affirmation of the constitutionality of the legislation in controversy between Republicans and Democrats in 1879-80. The second paragraph of the Bulletin's synopsis is here given :

"That Congress had the power, by the Constitution, to pass this resolution referred to, viz. Section 5515 of the Revised Statutes, which makes it a penal offence against the United States for any officer of elections, at an election held for Representatives in Congress, to neglect to perform or to violate any duty in regard to such election, whether required by the law of the State or of the United States, or knowingly to do any act unauthorized by any such law, with intent to affect such election, or to make a fraudulent certificate of the result; and Section 5522, which makes it a penal offence for any officer or other person, with or without process, to obstruct, hinder, bribe, or interfere with the supervisor of the election, or the marshal or deputy marshal, in the performance of the duty required of them by any law of the United States, or to prevent their free attendance at the place of registration or election, etc.; also Sections 2011, 2012, 2016, 2017, 2021, and 2022, Title 26, Revised Statutes, which authorize the Circuit Courts to appoint supervisors of such elections, and the marshal to appoint special deputies to aid and assist them, and which prescribe the duties of such supervisors and deputy marshals, these being the laws provided by Congress in the Enforcement Act of May 31, 1870, and the supplement thereto of February 28, 1877, for supervising elections of Representatives, and for preventing frauds therein."

R. CHAIRMAN,- My colleague,1 in his speech opening the discussion upon this bill, made the announcement in substance, and it remains without being contradicted or protested against by any one on his side of the house, first, that "we have not hitherto made, do not in this bill, and will not in any future bill, make any appropriation whatever for supervisors or special deputy marshals, so far as they have to do with Congressional elections." He asserted that it is not proper for any officer of the government to appoint special deputy marshals, when no appropriation has been made for that specific purpose. Then further on he declares (I quote from his printed speech): –

"And I desire to say that because the Supreme Court of the United States has decided that the election law is constitutional by a sort of eight-by-seven decision, and I mean by that a division apparently according to party lines, (without impugning the good faith of any member of the Supreme Court, but to show how differently a legal question may appear to persons who have been educated in different political schools,) that although that court has decided the constitutionality of the law, that when we come, as legislators, to appropriate money it is our

1 Mr. McMahon.