SPEECH OF MR. BARNARD, OF NEW 10RK, 
 
 ON THE 
 
 Report and Resolutions of the Committee on Elections, relative to the elections 
 by General Ticket in the four recusant States of New Hampshire, 
 Georgia, Mississippi, and Missouri. 
 
 DELIVERED IN TIIE HOUSE OF REPRESENTATIVES OF THE U. S., FEB. 13, 1844. 
 
 {The Report of the Committee on Elections, having the subject in charge by order of the House 
 
 of Representatives, presents a labored argument, the conclusion of which was summed up in 
 
 the following resolution: 
 
 “ Resolved, That the second section of ‘ An act for the apportionment of Representatives 
 among the several States according to the Sixth Census,’ approved June 25, 1842, is not a law 
 in pursuance of the Constitution of the United States, and valid, operative, and binding upon 
 the States.” 
 
 The debate was begun on Tuesday, the ninth day of February, and was continued daily, to 
 the exclusion of all other business, for one week, having been closed by Mr. Douglass, the 
 author of the report, on Wednesday morning, the 14th of February. Mr. Barnard spoke at a 
 late hour on the preceding evening, and was the last who addressed the House in opposition to 
 the report and resolution. About thirty gentlemen had been heard on the subject—all under 
 the stringent and dwarfing effect of the one hour rule. Before the previous question was moved 
 the form of the question was changed, so as to make the majority sustaining the report declare 
 £hat the several persons (naming them) occupying seats from New Hampshire, Georgia, Mis¬ 
 sissippi, and Missouri , had been duly elected, and were entitled to their seats; thus endeavor¬ 
 ing to avoid a direct declaration against the constitutionality and validity of the law of Congress, 
 though this consequence was plainly involved in such a conclusion.] 
 
 Mr. BARNARD spoke to the following effect: 
 
 Mr. Speaker : I must be allowed to begin what I have to say on the 
 business now before us with expressing, not merely my dissent from, 
 but my utter abhorrence of, a spurious and dangerous doctrine which 
 has been allowed to circulate through the whole of this debate, without 
 being once disputed or questioned ; I mean the idea that it is within 
 the constitutional competency of the House of Representatives to pro¬ 
 nounce a law of Congress unconstitutional and void. This is so utterly 
 repugnant to every notion which I entertain of a government of laws— 
 of regular government of any kind—that my mind instinctively revolts 
 at such a proposition ; and I am satisfied that nothing can account for 
 the easy manner in which so shocking a doctrine has obtained free cur¬ 
 rency in this House, but the fact that the minds of men amongst us 
 have become familiarized, of late, with all sorts of bold and monstrous 
 speculations in matters of society, politics, and government. Nothing 
 is too bold for restless spirits to attempt; nothing is too absurd for in¬ 
 genious minds to advocate and defend. These things meet us at every 
 turn; and our sensibility to the general order, beauty, and perpetuity 
 of things—always a more prompt, often a more unerring guide than 
 the cold reason—is dulled and blunted amid the multiplicity and con¬ 
 fusion of high-handed errors with which the general ear and the general 
 mind are continually assailed and abused. How else it should happen, 
 I do not know, that this idea of a competency in the House of Repre¬ 
 sentatives, to annul a law of Congress, should have been received with 
 
 J. & 6. S. Owwa, print«CH. 
 
2 
 
 acquiescence and favor through a whole week’s debate, instead of hav¬ 
 ing been met at once with indignant denial and rebuke. 
 
 There is a proportion and fitness in the very frame of a great system 
 which cannot be disturbed without hazard of bringing down the whole 
 fabric in ruins. The delicate adjustment of the several parts, and the 
 incorporation of the whole into one complete plan, with strict unity of 
 design and purpose ; all this deserves to be well considered when we 
 are about to lay violent hands on any portion of its organic structure. 
 If ours is a government of law T s, then the laws ought to govern; and to 
 my mind it is a startling and a fearful thing, when it is pretended to be 
 discovered that there are cases in which one branch of the Government 
 —not the judicial branch—or rather one fragment of a branch of the 
 Government, acting, in this respect, merely in a ministerial capacity* 
 has authority to sit in judgment on the validity of laws; to pronounce 
 sentence of condemnation on them ; to absolve itself from their obliga¬ 
 tion ; and, along w T ith itself, to absolve also as many of the people as 
 may choose to avail themselves of this plenary indulgence. 
 
 It is a statute of this land that is proposed to be dispensed with, set 
 aside, and annulled in this unceremonious way; an enactment made 
 by the legislative authority of the country, appointed by the Constitu¬ 
 tion for this purpose, passed with all the accustomed forms of proceed¬ 
 ing, and with the concurrence of the several branches and powers re¬ 
 quired to create and solemnize a statute. And it is one of the branches 
 only—a fragmentary part—of the legislative power, which, standing 
 alone, sets up this right of annulling a statute thus created and solemn¬ 
 ized. It is a gross libel on the Constitution of the United States, and 
 the memory of the illustrious men who framed it, to suppose that it 
 authorizes such a proceeding. 
 
 The legislature of the country always has it in its power to retrace 
 its steps, and to correct any mistakes into which it may have fallen,, 
 by a repeal of its own enactments. But an act repealing a statute is 
 itself a statute, and must be enacted by the full concurrence of the 
 whole legislative authority. Nothing short of this can effect a repeal; 
 no action, from a legislative source less than this, can shake the force 
 and obligation of a statute. How can it be pretended, then, that one 
 branch of the legislature which cannot repeal, may, nevertheless, as¬ 
 sume a higher prerogative, and annul a statute 1 
 
 But what is the ground of the pretension set up in this case 1 It is said 
 that the constitutional authority of Congress to pass the second section 
 of the apportionment law is disputed; that if Congress had no such. 
 pow T er the law is merely void ; and that the question whether it be a 
 law or not, or, which is the same thing, whether Congress had author¬ 
 ity to pass it or not, is directly involved in the inquiry in which the 
 House is now legitimately engaged—namely, an inquiry into “the 
 elections, returns, and qualifications of its own members.” Of all this 
 matter, it is said, the House is to be “the judge,” by direct constitutional 
 appointment. 
 
 Nothing marks the character of an ingenuous, fair, and safe mind 
 so strongly as the fact that it - is always seen to pause, and resolutely 
 turn back, when it is brought, in the course of an argument, to the 
 verge of a great moral difficulty or evil. This affords a demonstration. 
 
3 
 
 which nothing can oppose, that the reasoning in the case has been 
 wrong—that a false step has been taken somewhere in the process; 
 and this is not a whit the less certain, because it may not be easy or 
 possible to detect exactly where the false step was made. Ardent, 
 bold, and reckless minds are in no way affected by such considerations 
 as these : a plausible argument is as good for their purposes as a sound 
 one. If it will succeed, it is no matter how much it deceives, and no 
 matter how much mischief it accomplishes. The reasoning by which 
 it is concluded that the House of Representatives has authority to annul 
 a law of Congress, involves a moral absurdity and mischief which 
 ought to make every honest mind renounce, at once and forever, both 
 the conclusion and the argument. 
 
 When it was found that the Constitution made this House u the judge 
 of the elections, returns, and qualifications of its own members,” it was 
 natural enough, perhaps, to infer that judicial power was in some sense 
 conferred on this body; and from this assumption it was an easy step 
 to the conclusion, that this judicial power involved the right to decide 
 on the constitutional validity of a law of Congress touching the elec¬ 
 tion of members. _ When, however, the argument had reached this 
 conclusion, and was found to involve the monstrous proposition, that 
 one branch of the legislative body, sitting in that capacity, had a right 
 to review, reverse, and annul the decision and acts of the whole legis¬ 
 lative body—and that, too, in a matter not merely affecting its own or¬ 
 ganization, proceedings, or government, but affecting matters of public 
 policy, in which the rights and interests of the whole people of the 
 United States were vitally concerned—when this was discovered, it is 
 difficult to understand how any fair mind could continue to rest for one 
 moment longer on such a position. I know that it has been assented 
 to here by many, because they have not given the subject the consider¬ 
 ation it deserves. 
 
 The truth is, that the first error in this case is in ascribing to this 
 House judicial power. Properly, it has no such power; its authority 
 is all the while legislative, and with this—just like every court, as well 
 as every legislative body—it has such incidental powers as are neces¬ 
 sary to enable it to perform its proper and legitimate functions. One 
 of these powers relates to its own organization, as another does to its 
 own government. But these powers are more ministerial than judicial. 
 The House may judge of the elections of its own members; but in¬ 
 spectors of elections are judges of elections also, and so are function¬ 
 aries and boards of officers appointed to canvass the votes and returns, 
 and declare the results; and nobody contends that these have any 
 judicial power. The only diffeience is, that the House is to judge in 
 the last instance, and that no appeal can be taken from its decision, 
 except to the public voice or the popular will. Its decision is final, for 
 the time being; and I grant that it may also be arbitrary—outraging all 
 law and order, and defying all decency—and yet be without remedy, 
 except in the virtue of an insulted people. Still (he power is minis¬ 
 terial : in its nature and essence, it is just such a power as very inferior 
 functionaries are often called on to perform—constables, bailiffs, and 
 the like, as well as executive officers of high grade and dignity. They 
 must all occasionally judge and decide on very important incidental 
 
4 
 
 matters, in the course of the execution of their proper duties. Some¬ 
 times they have to administer oaths, and examine witnesses, and hear 
 allegations, and so determine questions; but in all this they are never 
 regarded as exercising judicial power—it is merely ministerial. Their 
 business is to execute the law—to carry the law into effect, just as it 
 stands, or just as it has been interpreted and declared by the judicial 
 power. 
 
 And this is exactly the nature of the authority which this House has 
 in the power u to judge of elections.” It is to take the law as it finds 
 it, and determine who have been elected according to that law. If 
 there be doubt about the meaning or construction of a law, it is un¬ 
 doubtedly to construe it for itself, in the absence of all judicial inter¬ 
 pretation ; but to construe it only for the purpose of executing it—not 
 certainly for the purpose of annulling it. And if it be a statute of 
 Congress which is to be considered and carried inlo effect, it is no mat¬ 
 ter what may happen to be the opinion of a political majority in this 
 House—how united or unanimous—about its want of constitutional 
 sanction ; still the House cannot refuse to execute it, without incurring 
 the certain guilt of throwing a well-ordered and regular system of gov¬ 
 ernment out of gear, and exposing it to confusion, anarchy, and de¬ 
 struction. It is no apology to say, that if the law is unconstitutional 
 it is void, and ought not to be executed. If the House may say this, 
 every functionary of the Government, high or low, having ministerial 
 duties to perform, and every restless and rebellious spirit in the land, 
 high or low, may say the same thing, and act accordingly. And ail 
 this would only be a practical illustration of the most disorganizing, 
 mischievous, and monstrous political heresy ever uttered in this coun¬ 
 try—the effect of which is more and more manifest and melancholy 
 every day—that both Constitution and laws are to be obeyed and exe¬ 
 cuted by a public functionary as he understands them; and, of course, 
 if by one public functionary, then by all; and if by public function¬ 
 aries, then by every citizen. For such persons to say that a law is un¬ 
 constitutional, and to act accordingly, is to set up private judgment 
 against public authority. Congress judges, in the first instance, of the 
 question of constitutionality in regard to every act which it passes, and 
 determines that question in favor of the law. So far, there is a legis¬ 
 lative interpretation of the Constitution. This is authoritative, and is 
 to stand as the judgment of the whole country on the subject, until 
 that interpretation is reversed in the courts—the only place known to 
 the Constitution where the question can be legitimately entertained, or 
 the reversal authoritatively made. If functionaries, who are to carry a 
 statute into effect, ministerially, may stop to question its validity, may- 
 try that question, and pronounce the statute inoperative and void, 
 should their judgment or caprice lead them to that conclusion—then 
 statutes have no sanctions and no authority; and whatever else the 
 Government may be, it is not a government of laws. 
 
 And this House, in regard to statutes touching the elections of its 
 members, and acting under the power u to judge of the elections,” 
 stands exact!}' in the predicament of any other functionary, bound by 
 direct official obligation to carry into effect, ministerially, a law of the 
 land—except, only, that in its violation or contempt of the law it may 
 
5 
 
 escape judicial responsibility. Congress passes a law regulating the 
 manner of holding elections for Representatives in the several States: 
 this law is to be carried into effect first in the States, and finally in this 
 House in case disputes arise. And this is all the House has or can 
 have to do in the matter. No Congress could be formed—no House of 
 Representatives could be constituted under the fundamental law—with¬ 
 out statutory regulations, enacted either by the States or by Congress. 
 Provision is made in the Constitution to this effect: When Congress, as 
 the paramount power, passes a statute on the subject, that is the law 
 of the land, and just as much of binding efficacy on this House as on 
 the people, or the country at large. This House, alone, cannot make 
 or unmake a law regulating the manner of holding elections. It may 
 determine when elections are properly made under the law—just as 
 other judges of elections may do—and there an end. Its business is 
 to carry the law into effect, as the ministerial agency appointed for 
 this purpose, and not to sit in judgment on its constitutional validity: 
 That question was determined, so far as this House is concerned, when 
 the lav was passed; it was determined by the entire legislative power 
 of the ;ountry ;'and it is preposterous to suppose that the Constitution 
 should have intended to refer that same question back, under any cir¬ 
 cumstances, not to the whole Legislature, but to a component branch 
 of it. For this House to act on such a supposition as it proposes now 
 to do—to attempt to enlarge a mere ministerial agency, provided to make 
 sure the execution of the law, into a high prerogative power, higher in 
 some sense than that of repeal or of dispensation—the power to pro¬ 
 nounce judgment of condemnation on a public statute—to pronounce a 
 statute void for want of constitutional sanction; and thus, in effect, to 
 make, or attempt tomake,its decision a perpetual decree against any such 
 legislation for ever—all this is, to my mind, disorganizing and revolution¬ 
 ary. It is in the strongest spirit of insubordination and lawlessness. 
 
 If this House has the power to decide on the constitutionality of laws 
 of Congress—those relating to elections, or any other—it must at least 
 be confessed that it is of all others the strangest and most unnatural, 
 and unfit, of all tribunals which could have been devised for a duty so 
 delicate, so difficult, and so responsible. The highest power known to 
 our system, or to any system, is the power to pronounce judicial con¬ 
 demnation on a law of Congress as void for want of constitutional sanc¬ 
 tion. It is this amongst other things—and this is not tire least—which 
 makes the Supreme Court of the United States a tribunal of higher ju¬ 
 dicial authority and’dignity than any similar tribunal in the world. The 
 power to interpret constitutions ; to settle their construction in disputed 
 cases; to declare, to limit, to confirm their powers—all this is authority 
 of supreme eminence and dignity. It may be entrusted to an inde¬ 
 pendent and permanent Judiciary—but not to a political changeling, 
 like the House of Representatives. 
 
 When a question of constitutional law, involving the construction of 
 a power in that instrument, is once entertained, and deliberately and 
 finally settled by the tribunal having the necessary authority, the 
 result and decision becomes in effect incorporated into the Consti¬ 
 tution, and forms a part of it; it is itself constitutional law, as much 
 as any part of the text of the Constitution. It becomes a part of the 
 
6 
 
 fundamental law, and is to be regarded and obeyed a3 such ; and, like 
 the text of the Constitution, it is permanent and perpetual, unless 
 changed by a formal amendment of that instrument. The eleventh 
 article of the Amendments of our Constitution was occasioned, as is 
 well known, by a judicial construction which had been put on that part 
 of the instrument which relates to the judicial power. Now, let any 
 gentleman reflect on the manner in which the House of Representa¬ 
 tives is composed—elected by the people every two years ; a political 
 body, and changing its political majority almost as often as a new 
 House is constituted—and then say, if he sees in this House a fit or safe 
 tribunal for the judicial determination of questions of the nature of those 
 referred to. Why, let its fitness be illustrated and tested by the very 
 case we have in hand. Congress has passed a law for regulating the 
 manner of holding elections for Representatives. This House now pro¬ 
 poses to determine judicially, and will no doubt shortly so determine 
 and declare in effect, that that law is void for want of constitutional 
 authority. For the case and the occasion the Constitution will stand 
 as this House shall pronounce and declare it. If the authority really 
 resides in this House, which is contended for, then, the decision once 
 made, it ought to be the same thing, as long as it lasts, as if a formal 
 amendment had been made to this effect, namely, that nothing in 
 the Constitution shall be held to authorize Congress to pass a law 
 declaring or requiring that Representatives shall be elected in the sev¬ 
 eral States by single districts. And this should be not merely the tem¬ 
 porary, but the permanent effect, if the House really possesses this high 
 judicial power. Its decision ought to be final. It should be revered 
 and observed as a part of the Constitution—unchangeable, except by a 
 formal amendment. But those who ascribe this power to this House do 
 not.pretend to look for any result, in this decision, beyond the tempo¬ 
 rary settlement of a disputed question of title to seats in the House for 
 this present Congress. They know very well, if the political power of 
 this body shall be in the hands of their opponents in the next Congress 
 —as the chances are a thousand to one it will—that this decision of 
 theirs will be promptly reversed, in case any individual should have the 
 temerity then to offer himself as a Representative elected in defiance of 
 the existing law of Congress. This they anticipate and expect; and I 
 venture to say it would never occur to one of them, in such a case, to 
 attempt to defend on the ground of res judicata. 
 
 What sort of a mode, then, is this, of establishing, by judicial con¬ 
 struction, what a constitution is—which is next to and hardly less than 
 making or amending a constitution. The Constitution is to be one 
 thing for the 28th Congress, and another thing for the 29th Congress; 
 and a law is to be unconstitutional for the 28th Congress, and perfectly 
 constitutional for the 29th Congress. How can any man maintain ahd 
 uphold a doctrine which involves consequences and absurdities such as 
 these 1 This high power on the part of this House, by which it is en¬ 
 abled to go behind the law and declare what the Constitution is, and 
 what it shall be, at least for this present time, touching the subject to 
 which the law relates, is found in the authority which declares that this 
 House shall be “ the judge of the elections, &c., of its own members.” 
 But does not every body see that the next House of Representatives is 
 
r 
 
 to possess precisely the same authority, unaffected by any thing which 
 this House can say or do, to judge of the elections of its members? 
 u Each House is to be the judge, &c.” The next House, then, must 
 have the same light to declare the law of Congress constitutional, valid, 
 and operative, as this House can have to declare it unconstitutional and 
 void. And the only sound and rational conclusion is, that neither has 
 a right to touch the question of constitutionality. The whole duty of 
 the House is to carry the law into execution just as it stands, as the min¬ 
 isterial organ appointed by the Constitution for this very purpose. Con¬ 
 gress has settled the constitutional question for this House and for the 
 country, in the act of passing the law, and nothing is left for the House 
 or the country to do but obey the law, except to resort to nullification. 
 If the law is unconstitutional, Congress will repeal it the very hour 
 that fact can be shown; but it requires something better than mere po¬ 
 litical or party opinions, having nothing in truth or reason to stand upon, 
 to show that the law is unconstitutional. 
 
 The absurdity of this assumed authority, on the part of this House, is 
 set in a strong light, when it is considered that the House, in this case, 
 undertakes to declare the constitutional law of the land, not for its own 
 government merely, but for the government of the whole American 
 people. It is difficult to imagine what subject could be of more vital 
 interest to the people of the United States, than one in which the prin¬ 
 ciple of representation, the very soul and essence of our system, is in¬ 
 volved. Elections are necessary to representation; and equal and just 
 representation can only be secured to all the people by an equitable and 
 just mode of holding and conducting the elections. Great and ac¬ 
 knowledged inequality of representation was found to exist as between 
 the different States. Some elected by general ticket, others elected by 
 districts. This secured to the former States a very signal and unjust 
 advantage over the latter on the floor of the House of Representatives. 
 A State electing forty members by districts would be found to have its 
 political strength so equally divided, that its power in the House, on 
 the most important questions, would be outweighed by a State electing 
 no more than two or three members by general ticket. The danger was 
 that the large States would resort to the general ticket in self defence 
 against the small States which had adopted that system ; and then the 
 remedy would be .found worse than the disease. The power of the k 
 large States would overwhelm the small, when all elected by general 
 ticket. The only true remedy was in a resort to the district system for 
 all the States. Congress believed it had the power to prescribe that 
 system, under the plain and unequivocal language of the Constitution. 
 The law-making power made the law, and it was a law operating upon 
 and affecting directly the great body of the people of the United States 
 
 in a matter of vital interest to themselves. Under its authoritv all elec- 
 • * 
 
 tions of representatives were to be held; it prescribed the mode, and the 
 only mode, in which the great principle of popular representation in 
 this Government was to be realized and accomplished. And such a 
 law it was, and is, which this House undertakes to annul and set aside 
 for want of constitutional sanction. This House will declare this law to 
 be void, either directly by resolution to that effect, or practically by de¬ 
 claring that persons chosen by another mode are legally elected. Tbia 
 
I 
 
 8 
 
 House declares what the Constitution is, and what it shall be, in the 
 case; and then declares what the existing and operative law is, and 
 that the existing and operative law in the case is one which prescribes 
 a mode of election the opposite of that which the act of Congress had 
 prescribed. Here, then, the House sets itself above the law-making 
 power, of which it is only a co-ordinate branch, and, in defiance of 
 what the law-making power has prescribed under the Constitution, un¬ 
 dertakes to declare both what the Constitution is, and what the actual 
 and operative law is, overriding and trampling down a law of Congress, 
 and that in a matter most deeply affecting the rights, duties, and privi¬ 
 leges of the whole people of the United States: This House which, of 
 itself, can make no law to bind the people of the United States on the 
 most unimportant and trifling subject, may, according to this doctrine, 
 declare the law, if it cannot make it, on subjects of the utmost moment, 
 not only without the aid of the rest of the law-making power, but in 
 spite of the whole of it. Congress has enacted and declared that rep¬ 
 resentatives shall be elected from the several States by districts; this 
 House overrules Congress, and declares and prescribes that the people 
 of any State, who so choose, shall elect their representatives by general 
 ticket; and this last is the law and the Constitution in the case. Mon¬ 
 strous, monstrous conclusion! 
 
 I deny, then, utterly, that this House is competent to entertain the 
 question of the constitutional authority of Congress to pass the Election 
 law which it is now called on to enforce and carry into effect; and that 
 the attempt to set aside or annul that law is disorderly, disorganizing, 
 and revolutionary. But, since the House is resolved to accomplish its 
 unhallowed purpose in this respect, I (urn to consider, for a few mo¬ 
 ments, the feeble and hollow pretence—for so I feel constrained to re¬ 
 gard it, without permitting myself to doubt the sincerity of those who 
 set it up—on which this high-handed measure is attempted to be justi¬ 
 fied. The whole argument for unconstitutionality or invalidity will be 
 found to rest on a single averment, which, if admitted to be true, 
 proves nothing, except that it is as easy for some minds to draw a false 
 conclusion as a legitimate one. 
 
 But I must first be allowed to state the general ground on which the 
 validity of the Election law rests. The whole ultimate authority over 
 the manner of holding and conducting the elections for representatives 
 rests with Congress. “The times, places, and manner of holding elec¬ 
 tions for representatives shall be prescribed in each State by the legis¬ 
 lature thereof; but the Congress may, at any time, by law, make or 
 alter such regulations.” Such is the constitutional provision. By 
 some mode of legislation or other, Congress may control and direct 
 whatever relates to “ the times, places, and manner of holding elec¬ 
 tions.” It is generally admitted, also, though some have denied it, 
 who deny every thing, that Congress may prescribe the mode of elect¬ 
 ing by districts. This, at any rate, is what Congress has undertaken to 
 do in the Election law. 
 
 That law is in general terms, and runs to this effect: “ In each case 
 where a State is entitled to more than one representative, the number 
 to which each State shall be entitled shall be elected by districts com¬ 
 posed of contiguous territory, equal in number to the number of repre- 
 
9 
 
 Bentatives to which said State shall be entitled—no one district electing" 
 more than one representative.” The act lays down a rule which fixes 
 the mode of holding elections, and it purposely leaves to the State 
 legislatures the duty of supplying by legislative enactment, if not al¬ 
 ready done, the particular provisions which may be necessary for hold¬ 
 ing the elections by this mode. 
 
 In all the States of the Union, except four, the necessary supple¬ 
 mental legislation is found. General ticket systems and double districts 
 are given up. Every member on this floor, except from four States, 
 has been elected from a single u district composed of contiguous terri¬ 
 tory.” The act of Congress, and the laws of the several States sup¬ 
 plemental thereto or consistent therewith, form, together, the body of 
 legislation under which this House is constituted, so far as twenty-two 
 States are concerned. 
 
 In some respects this may be regarded as an anomaly in Govern¬ 
 ment—the employment of two, or, it may be, of twenty-seven distinct 
 legislatures to frame a body of laws on a single subject. A moment’s 
 consideration will show us that the system is not only a reasonable and 
 practical one, but that it is equally beautiful and harmonious. Our sys¬ 
 tem of Government may be complicated to those who will not give 
 themselves the trouble to understand it; it is perfectly simple to those 
 who do. 
 
 The people of the United States are all the subjects of two Govern¬ 
 ments—in some things distinct and independent, in some things united 
 and even blended, and in all things designed to act in perfect harmony. 
 
 Sometimes the people are regarded, in our system, solely as citizens 
 of the several States, and, as such, they are governed solely by State 
 laws. Municipal regulations, with enactments affecting property, per¬ 
 sons, and crimes, and the like, belong generally to the State gov¬ 
 ernments. 
 
 Sometimes the people are regarded, in our system, solely as citizens 
 of the United States, as subjects of this National Government, and, as 
 such,—at least in reference to many things—they are governed solely 
 by the laws of the National Government. In relation to war, in rela¬ 
 tion to commerce, in relation to coins and their value, and the like, 
 they are subject exclusively to the legislation of Congress. 
 
 But there are matters in relation to which, though the people are re¬ 
 garded in this system solely, or chiefly, as citizens of the United States, 
 and subjects of the National Government, as its constituency, and pro¬ 
 perly subject, therefore, to the direct legislation, and certainly to the 
 ultimate authority of the National Government, yet, as inhabitants of 
 States, as a people or nation grouped in distinct municipal communities, 
 the Constitution borrows or allows the aid of State or local legislation, 
 as better adapted to details of measures and to local administration. 
 There are numerous cases in the Constitution in which this concurrent 
 and mutual legislation has been or might be employed; some of which 
 has been referred to in the course of this debate, though not precisely 
 in the view for which I refer to them. 
 
 Under the Constitution, this kind of concurrent and mutual legisla¬ 
 tion might be employed in laying imposts or duties for the use of the 
 Treasury of the United States. The States may lay duties or imposts 
 
10 
 
 with the consent of Congress. Congress might, therefore, authorize the 
 States to enact laws on this subject, to fill up all the particulars and de¬ 
 tails of legislation, Congress itself prescribing the general rules and 
 regulations under which the system of imposts or duties should be es¬ 
 tablished and conducted. This plan of concurrent and mutual legisla¬ 
 tion might be resorted to, for the supply of the Treasury of the United 
 States, from duties on imports, and the exclusive legislation of Con¬ 
 gress on the subject given up, though it is not an experiment very 
 likely to be tried. 
 
 In like manner, a navy and army, for public national defence, 
 might be established by concurrent and mutual legislation between 
 Congress and the several States. The States may u keep troops or 
 ships of war in time of peace,” with the consent of Congress. If this 
 plan were resorted to, Congress would prescribe the general regulations 
 and conditions, and the States would fill up with the necessary par¬ 
 ticulars. I only allude to what might be done under the Constitution, 
 not what is likely to occur. 
 
 But there are cases in which this plan of concurrent and mutual 
 legislation has actually been employed, and with complete harmony 
 and success. By the Constitution, it belongs exclusively to Congress 
 to provide for organizing the militia, except only that the appointment 
 of the officers is reserved to the States. But Congress has contented 
 itself with prescribing the manner in which the militia shall be organ¬ 
 ized, leaving to the States respectively to fill up the plan, and perfect 
 the details. And the States have supplied the necessary details; and 
 the militia system of the country now stands upon the mutual legisla¬ 
 tion of this Government and of the several States. 
 
 In all these cases, it will be observed, the object is altogether na¬ 
 tional; national purposes are all the while in view. It is the treasury 
 of the nation that is to be supplied by duties and imposts. The nation 
 alone can go to war. Insurrections and invasions are to be met by the 
 National Government. Troops and ships of war, and militia, are 
 wanted for these occasions. And it will also be observed that, in all 
 these cases, the authority or right of the States to act at all in the 
 premises is merely permissive. Congress might perfect its own system, 
 leaving nothing for the States to do. It is for their interest to have 
 their share in the legislation—as in regard to the militia; and their 
 part is gladly performed, always in subjection to the paramount au¬ 
 thority of Congress. And it is wholly a voluntary service, for no posi¬ 
 tive duty in the case is enjoined by the Constitution. 
 
 There is, however, another case, where this concurrent and mutual 
 legislation has been employed, which is more strikingly analogous to 
 the case under consideration. I refer to the manner in which the time 
 of choosing electors of President is prescribed and regulated. Each 
 State, b}' the Constitution, is to appoint electors in such manner as its 
 legislature shall direct; but it is provided that u Congress may deter¬ 
 mine the time of choosing.” In 1792, Congress enacted that each 
 State should choose electors within thirty-four days previous to the 
 first Wednesday in December; and each State, by its own legislation, 
 fixes the day within the period prescribed by Congress. 
 
 Now it is evident to the commonest understanding that we haye 
 
/ 
 
 11 
 
 another of these familiar examples, where concurrent and mutual 
 legislation may be very profitably and wisely employed, in the case 
 under debate. The election to be provided for is an election of repre¬ 
 sentatives to the National Government. The voters are the constitu¬ 
 ency of this Government, though they are to elect, in their respective 
 States, as inhabitants of States. The authority to prescribe regulations 
 for holding the elections is delegated to the States. This was indis¬ 
 pensable in the first instance, else no elections could have been held 
 for the first Congress, inasmuch as the Constitution did not itself pre¬ 
 scribe the necessary regulations. But this delegated authority was to 
 be exercised only until Congress should interpose, except that so much 
 of the necessary legislation in the case as Congress should at any time 
 leave untouched by its own enactments would all the while and for¬ 
 ever remain to the States. All this seems perfectly plain, not only 
 from the language of the Constitution, but from the nature of the 
 power, the object to be attained, and the mutual interest of the re¬ 
 spective governments in the matter. Analogy, as I have already ex¬ 
 plained, points out the course to be pursued. It was a case for con¬ 
 current and mutual legislation—that of this Government being con¬ 
 trolling and paramount—whenever it became necessary for Congress 
 to interpose at all. 
 
 And this has been the course adopted. It became necessary for 
 Congress to interpose; and this was done by an act, which laid down a 
 plan and rule—made a general regulation—in regard to the mode in 
 which elections for representatives should be held. A very proper oc¬ 
 casion was seized for making this new regulation, the commencement 
 of a new Decade of years in the Congressional history of the country, 
 under a new census, and a new apportionment of representatives. 
 And Congress has begun this new Decade under this new regulation 
 and mode of electing representatives. Twenty-two States (twenty- 
 three now that Georgia has legislated on the subject) have the neces¬ 
 sary supplemental regulations. And the laws of these States, with the 
 law of Congress, form together the body of legal regulation for the 
 election of representatives contemplated and required by the Constitu¬ 
 tion ; and under this body of laws this House of Representatives is now 
 constituted. 
 
 But four States have elected by general ticket, though expressly 
 prohibited fiom doing so by the law of Congress. These States, and 
 their quasi representatives, (with two exceptions,) and their political 
 friends on this floor, attempt to justify that act of daring nullification 
 performed in the States, and they claim that this act shall be confirmed 
 by a still more formal and more daring act of nullification on the part 
 of this House. Let us consider then, for a moment, on what shallow 
 pretence it is that this House now purposes to go to the length of nul¬ 
 lifying the law of Congress. 
 
 There is no question as to the right of Congress to interpose with its 
 legislation in this case ; the only question made is as to the mode in 
 which it has chosen to interpose. It has adopted the mode of estab¬ 
 lishing a general regulation, leaving the States to supply all particulars 
 and details, if they have not done so already. 
 
 It is admitted, in the report of the Committee on Elections, that Com- 
 
12 
 
 gress may, at any time, make all the regulations required or contem¬ 
 plated by the Constitution, leaving nothing for the State legislatures to 
 do on the subject. It is admitted, also, that Congress may make com¬ 
 plete regulations in regard to any one branch of the subject, as in regard 
 to u the times,” or u the places,” or u the manner,” leaving the State 
 legislatures to act independently on such branch or branches of the sub¬ 
 ject as Congress should leave untouched, according to what the report 
 calls their u imperative duty.” So far the admissions of the report go; 
 but here it stops short, and denies that Congress can make any general 
 regulation in regard to any one branch of the subject, leaving the State 
 legislatures to supply the necessary particulars as to that branch . And 
 now for the reason, (for so fanciful and puerile a theory as this must 
 have some show of reason offered to sustain it,) and the only reason, 
 offered by the Committee, why Congress cann'ot interpose its legislation 
 by making a general regulation on any one branch of the subject—the 
 reason is this (I quote from the report:) u It is entirely nugatory and 
 inoperative without the aid of State legislation .” It is added, by way of 
 consequence, that, if it have any operation on the States, it is coercive 
 like a command, and, as the States are not bound to obey, the act is 
 unconstitutional and void. 
 
 It must be confessed that this is very strange reasoning; one hardly 
 knows what to make of it, or how to treat it. It is clear that it is meant 
 for reasoning—for reasoning on a point of constitutional law—and, as it 
 is found in the report of a committee of this House, I suppose it must 
 be treated gravely. 
 
 We say that here is a case for mutual legislation. It is so in the na¬ 
 ture of the case, and by analogies and examples in operation and force 
 from the first days of the republic. Congress is to do its part—as much 
 or as little as it will—leaving the States to bring in their contribution 
 and aid by all needful supplementary legislation. The answer which 
 we have from the oracles of modern political wisdom is, that all legis¬ 
 lation by Congress is utterly void which requires the aid of State legis¬ 
 lation to make it operative or effective. In other words, there can be 
 no such thing as mutual legislation between Congress and the State 
 legislatures on any single independent point or topic whatever. Well, 
 this argument—if argument it maybe called—has the merit of boldness 
 at least, considering how much legislation of this sort now exists, and 
 how much more might exist, under various provisions of the Constitu¬ 
 tion. But it is not argument; it is mere naked assertion, without any 
 thing in fact or in nature, under the light of heaven, to stand upon. 
 What appears to be a reason is only an averment, and an averment 
 over again, in substance, of the same proposition which it is adduced to 
 sustain. The proposition is, (I speak of the substance of the thing,) 
 that Congressional legislation, on any independent point or matter, can¬ 
 not constitutionally be aided or helped out by State legislation to make 
 it operative ; the reason is, that it is inoperative without the aid of State 
 legislation, which it cannot constitutionally have. 
 
 But the author of the report finds a case—and he might have found a 
 great many—in which concurrent and mutual legislation cannot be re- . 
 sorted to, where the whole legislation on the whole subject, and every 
 part of it, must be supplied by Congress. He refers to the power over 
 
X 
 
 13 
 
 bankruptcies in the Constitution. But the power over bankruptcies 
 existed in the States originally. It was a subject of municipal regula¬ 
 tion—as much so as contracts or promissory notes. And their jurisdic¬ 
 tion was not taken away by the adoption of the Constitution. It re¬ 
 mained in full force, and was only to be taken away by the actual ex¬ 
 ercise of the power on the part of the national legislature, and then 
 only to the extent to which the power should be exercised and contin¬ 
 ued by Congress. 
 
 The State laws on this subject operate, of course, only on the people 
 of the States respectively, the laws of each on the people of each, as 
 the subjects of one, and only one, local and independent government. 
 When Congress legislates on the subject the case is changed. Then 
 the people of all the States are regarded as one people—the subjects of 
 one common government—and as if there was no such thing as a sepa¬ 
 ration of the people into distinct communities or States. The laws on 
 the subject are required by the Constitution to be uniform—not merely 
 that they shall operate in a uniform way on the people of the several 
 States, but that the laws themselves shall be uniform, operating as if 
 there were no States, no confederacy, no union, but one people, form¬ 
 ing one municipality, and governed by one law. And hence it is that 
 there can be no joint legislation by Congress and the States for one and 
 the same class of cases in bankruptcy. 
 
 When Congress takes cognizance of cases in bankruptcy, it must do 
 so, regarding the persons on whom its laws operate solely as citizens of 
 the United States, and wholly independent of the fact that the people 
 are grouped in distinct municipal communities —its laws must be uniform . 
 And this is not, therefore, a case in which it can borrow the aid of State le¬ 
 gislation to supply the details of the system. All the laws must be 
 uniform—every particular provision, as well as every general regula¬ 
 tion—and must operate upon all. And, as one State cannot legislate 
 for another, or for the people of another, the whole legislation must ne¬ 
 cessarily be supplied by Congress. 
 
 And this is the case, and the only case worth a momentVnotice, on 
 which the author of the report lelies to show that there can be no such 
 thing, in any case, as joint and mutual legislation by Congress and the 
 States. He might as well have adduced the war power in the Consti¬ 
 tution, or the commercial power, or anysimilar power belonging exclu¬ 
 sively to this government as a national Government, to show the same 
 thing, and they would have shown it just as conclusively. 
 
 But the question returns: Why may not Congress in this case—in 
 regard to elections of Representatives from the several States—inter¬ 
 pose in the way of a general regulation, touching the mode of holding 
 the elections, and leave the States to follow and fill up the plan 1 The 
 answer offered is: Because this way of legislating does require the aid 
 of State legislation; and because it requires the aid of State legislation 
 to make the system complete, it is inoperative, and therefore void. Con¬ 
 gress has not the constitutional power to make such a law. Let u« 
 see now where this sort of reasoning will land us. 
 
 In the first place, it is admitted that if Congress had, at the time of 
 passing the Election law, supplied the necessary particular provisions, 
 it would not then have been unconstitutional or void ; nor would it be. 
 
14 
 
 if this present, or any future Congress, should supply these provisions; 
 nor if the States, respectively, shall supply these provisions—lor it is 
 admitted that the States may voluntarily, or as an act of grace, legis¬ 
 late on the subject, though they cannot be commanded or required to 
 do so. It is now actually in force in twenty-two States, insomuch, that 
 whether their legislation preceded or has followed that of Congress, and 
 whether voluntary or by reluctant compliance, the system is established 
 and in operation, and none of these States which now elect by dis¬ 
 tricts could re-establish or return to the General Ticket system so long 
 as this Election law of Congress stands. All that is contended for is 
 merely this : that the States which have not supplied the necessary 
 provisions to give the law effect in those States, need not do it, and it 
 is therefore void as to them. And what is the consequence of all this l 
 Why, first: That this law is absolutely void to-day for w T ant of the 
 necessary constitutional authority in Congress when it was passed, 
 which yet may be made perfectly constitutional and valid to-morrow, 
 or next year, by further legislation, either by Congress or the States, 
 which shall have no other object or operation but to make this very 
 law—that is, a void and unconstitutional law—operative and effective ! 
 And next: That this same law, which is general in its scope and de¬ 
 sign, is unconstitutional and void in some States, while it is perfectly 
 constitutional and valid in other States! It is actually the law of the 
 land in New York and twenty-one other States, from which there can 
 be no escape but by its repeal, while it is no law at all in New Hamp¬ 
 shire and three other States! 
 
 And, again : It is admitted that Congress may fix the times, or the 
 places, or the manner of holding elections, and that the States would 
 be bound by an “ imperative duty” to supply the regulations for such 
 branch or branches of the subject as Congress should leave untouched. 
 But it is perfectly manifest that in many cases such a law of Congress 
 would be u inoperative without the aid of State legislation”—which is 
 the very objection, and the only objection, urged against the present law. 
 
 Thus: Suppose a uniform day of holding elections for Representa¬ 
 tives had been fixed by the first Congress, before Rhode Island came 
 into the Union, and of course before she had any laws whatever on the 
 subject of the election. In that State the law would have been inope¬ 
 rative without the aid of State legislation. No election for Representa¬ 
 tives could have been held in that State, without State legislation fix¬ 
 ing and regulating the places and the manner. Such a law would have 
 been good and valid in all the other States—does the author of this 
 Report mean to say it would have been void in Rhode Island ? If such 
 a law were now to be passed, it would be a good law in all the States 
 now in the Union, but in regard to any new State hereafter admitted, 
 it would be nugatory without the aid of the legislation of such new 
 State—would it be void in the new State ? So, too, if Congress should 
 fix a uniform day for the elections, and that day should happen to be 
 the first of March, Pennsylvania could not proceed to the election with¬ 
 out the aid of State legislation. Her elections are conducted under in- 
 ■pectors elected by the people, and I understand they are now elected, 
 by law, somewhere about the middle of March. But this law of Con¬ 
 gress would be valid enough in other States—would it be void in Penn- 
 
V 
 
 15 
 
 sylvania ? Examples of this sort might be multiplied, but it is useless. 
 
 The truth is, that the notion which pervades the report of the commit¬ 
 tee, and which has been so much dwelt upon in the whole debate—that 
 any general regulation in regard to the election of representatives is 
 unconstitutional and void, unless the people can proceed to an election 
 under it without the aid of additional legislation, is merely absurd; it 
 has not one inch of ground to stand on. The single example found in 
 the law concerning the time of choosing the electors of President, and 
 which has stood on record for more than half a centuiy, ought to have 
 been enough to shame such a doctrine into silence. Congress fixed a 
 a period within which the choice should be made. No election could 
 take place in any State without the aid of its own legislation, fixing the 
 day; and nobody has yet been found to suggest that that law wanted 
 constitutional soundness and validity. 
 
 In all these cases where a body of law touching any subject may con¬ 
 sist, under our admirable system, of concurrent and mutual State and 
 National legislation, the usual and the only fit and proper mode is for 
 Congress to prescribe the genera] plan and regulations, and for the 
 States to supply the particular provisions. It is a point of supreme ex¬ 
 cellence in our system that this course can be adopted. It is for the 
 mutual advantage of all parties concerned. It renders our republican 
 and representative system more practical and more perfect than it could 
 otherwise be. It popularizes legislation in these cases beyond what 
 would be possible without it. 
 
 And, in the case before us, Mr. Madison laid down this very rule as 
 the proper one to be observed. Speaking in the Convention of Vir¬ 
 ginia, which adopted and ratified the Constitution, of the intention of 
 those who framed and adopted the clause relating to the times, places, 
 and manner of holding elections for representatives, and of the proper 
 distribution of legislation in the case between the State legislatures and 
 Congress, he said : u It was thought that the particular regulations 
 should be submitted to the former, (the State legislatures,) and the 
 general regulations to the latter,” (to Congress.) This is the golden 
 rule which has been followed in this case. Congress has performed its 
 part. It is left to the State legislatures to supply the particular regu¬ 
 lations, because this can be done more appropriately and more satis¬ 
 factorily to the people by them. It is, besides, their business, and the 
 business of their people. The people of the several States have a right 
 to be represented on this floor, by elections conducted according to the 
 mode prescribed by Congress, and not otherwise. And they have a 
 right to all the legislation necessary and proper to enable them to make 
 such elections. It is the “ imperative duty” of their own State legisla¬ 
 tures to supply this legislation, and it is their own fault if they allow 
 themselves to be cheated out of their right for want of it. 
 
 I do not think the history of Governments could show a more inex¬ 
 cusable and wanton resistance to law than is here exhibited. The law 
 is in every respect reasonable in itself, and is justified by abundant 
 precedent. Congress could not have undertaken to cut up the States 
 into election districts without incurring odium, if not resistance. State 
 rights were carefully considered and respected, both in the system and 
 in the mode of establishing it. The system itself brings the represen- 
 
16 
 
 tatives nigher the people than any other mode could do it; and the 
 formation of the districts is left to themselves and their own neighbors 
 and friends representing them in their local legislatures. In the name 
 of our common country, in the name of God, what do the people of 
 these recusant States want? And what do the members of this House 
 want, who sustain this shameful proceeding ? Here is the so-called 
 Democratic part)", as represented in this House, breaking out in open 
 hostility and resistance to a law which is more entirely democratic in 
 all its features and concomitants than any law which Congress has 
 passed for years and years together—a law which has been acquiesced 
 in, and has met the sanction, now, of all but three States in the Union, 
 prescribing a system which is the choice of more than eight- tenths of 
 the people of the United States. It is difficult to account for such in¬ 
 fatuation and folly. And the dominant party in this House, too, which 
 might have spared, without weakening it, twice the number of mem¬ 
 bers which a rigid adherence to the law of Congress would have cut 
 off, consents to lend itself to this proceeding, urged by no necessity, 
 impelled by no just motive, that I can learn from any public avowal, 
 and justified by no reason or apology which does not vanish and melt 
 away before the first steady gaze of sense and reason. The party feels 
 power, and must employ it; I know of no other explanation of its 
 course and conduct. 
 
 And in this proceeding it would seem as if every thing that is majes¬ 
 tic in constitutional forms, as well as every thing that is sacred in law, 
 order, and government, was to be profaned and trampled under foot. It 
 begins with a gross act of practical nullification in several States. A 
 law of Congress is openly set at defiance on the private and irrespon¬ 
 sible opinion of individuals, or of a party, that the law is unconstitu¬ 
 tional; and elections to Congress take place in violation and repudiation 
 of the law. This House then takes up the proceeding. To give itself juris¬ 
 diction of the question, it sets itself above Congress, and claims the right to 
 pronounce sentence of judicial condemnation on its acts. From a min¬ 
 isterial agent, appointed by the Constitution to give a law of Congress 
 effect, it erects itself into a high Judiciary, and sits in solemn judg¬ 
 ment over the law and the legislative power which enacted it. It is 
 now about 10 pronounce its decree. It is about to do that which the 
 Supreme Court of the United States, with its high and lofty attributes 
 of personal and official character, pure, elevated, and independent, has 
 never yet done—pronounce a law of Congress unconstitutional and 
 void! And all for what? Why, for nothing— u for Hecuba.Power 
 —Power ! The party feels power, and must use it. It cannot employ 
 it to build up; it will employ it to pull down. It is the blind giant 
 embracing the pillars of the Constitution, and, as his last act, bowing 
 with all his might to bury himself, and all about him in one common 
 ruin. Nullification here puts on a new phase. Once it was grave, 
 solemn, sincere, earnest—acting from deep though mistaken convic¬ 
 tions. Here it is flippant, sportive, wanton, and cruel, complaining of 
 no oppression and no injustice, having no injuries to redress, and pro¬ 
 ceeding to its work as if it were the agent of the furies, fated to accom¬ 
 plish a certain amount of mischief and destruction. But I take leave 
 of the subject.