xt7zgm81kp93 https://exploreuk.uky.edu/dips/xt7zgm81kp93/data/mets.xml Breckinridge, W. C. P. (William Campbell Preston) 1837-1904 1890  books b92-217-30936355 English Geo. R. Gray, Printer, : Washington, D.C. : Contact the Special Collections Research Center for information regarding rights and use of this collection. Election law United States Speeches in Congress. Federal election law  / remarks by Hon. W.C.P. Breckinridge, of Kentucky, in the House of Representatives, Tuesday, July 1, 1890. text Federal election law  / remarks by Hon. W.C.P. Breckinridge, of Kentucky, in the House of Representatives, Tuesday, July 1, 1890. 1890 2002 true xt7zgm81kp93 section xt7zgm81kp93 
Federal Election Law.



               REMARKS





                     BY






HON.W. C. P. BRECKINRIDGE,



            OF KENTUCKY,




In the ZEouse of Representatives,




         Tue8day, July 1, 1890.









           WASHINGTON, D. C.:
           GEO. R. GRAY. PRINTER.
               1890.

 This page in the original text is blank.

 

Federal Election Law.



                               RE MARKS

                                      BY


     HON. W. C. P. BRECKINRIDGE,

                                 OF RENTUC:Y,

                    IN THE HOUSE OF REPRL-SENTATIVES,

                           Tue8day, July 1, 1890.

  The Bousehaving under consideration the biU H. R. 11045) toamend and supplement the election
laws of the Culted States, etc.-
  Mr. HEMPHILL. Mr. Speaker, I desire to offer the amendment I send to the
desk.
  The Clerk read as follows:
  itrike out sections 15, 16, 17, and 18, and insert the followin g:
  SEc. 15. From the returns of the supervisors the chief supervisor shaU tabulate ant: forward to
the Speaker of the House of Representatives, to be by him submitted to the House, the results as
they appear therefrom in each Congressional district uuder his jur16dlction in which this act has
been enforced.
              6                                                 
  Mr. BRECKIN-RI)(4E, of Kentucky, said:
  Mr. S'i'KAE:.: The provisions of these four sections when taken in connection
with section 29 and with the section under which the chief supervisors are ap-
pointed, create a system which puts it in the power of the courts of the United
mates and of non-residents of the States where the elections are held to substanti-
aliy control the House of Representatives.
  Ifam not now speaking as a Democrat, but as a citizen and a Representative of
the people of the United States, looking to the future without regard to the ani-
mosities of the past. We are legislating for a common people for that great
future, and these sections, give to the circuit judges of the United States (of
which there are but nine) power to appoint the supervisors and boards of can-
vassers in States in which the judges do not reside, which boards of canvassers
have the power to make certificates which are to be sent to the Clerk of the House,
and by those certificates the Clerk is to make up the roll of this House.
  We are the representatives of the people of the States. We speak in a repre-
sentative capacity:; we represent those whoee commission we bear. We bear the
commission of those who choose us. No district can be a part of two States. We
are collectively the representatives of the people of the United States; individually
we are representatives of our districts. For a hundred years the certificate of the
governor of the State has been prirnez facie evidence of our title to our seats.
Under this bill a non-resident circuit judge, appointed because of his political
affiliation. goes into a State and chooses a board of canvassers whose certificates,
made up from the certificates of the lower supervisors, is final upon the Clerk of
this House. So that the number of men put by these certificates into this House
may control the House of Representatives. The gentleman from Massachusetts
[M4r. Loxx(E] says this is a bill to give publicity. It is no such thing. It is a
bill to give secrecy and power to the supervisors of the elections, appointed by a
judge who is a non-resident of the State.
  Under the domiciliary visits of the supervisor from house to house the voter
and that officer are alone. Every bribable man is brought into direct and secret
contact with the officer, who is appointed by the party in power, whichever party

 
4



that may happen to be. That officer stands by when that voter goes to the polls.
That officer certifies the list to the chief supervisor; that chief supervisor certifies
it to the board of canvassers; those canvassers certify it to the Clerk of this
House, and that Clerk puts the name upon the rolls of this House. The men
upon this floor may hereafter be DO longer the representatives of the people.
They will become the representatives of the party that happens to be in power,
provided this bill shall pass and shall be obeyed in every section of the States
and of the country.
  I can understand the gentleman from Michigan rMr. ALLEN], whose frankness
outran his discretion when he said that he was not willing to have this bill made
applicable to his district because fifty or one hundred unscrupulous men might
be tempted to petition to have it apply there. It is that which makes gentle-
men vote for it. They are willing to Eubordinate the certificate of State officers,
they are willing to make this stab at the purity of elections, because it does not
apply to their States. They would nrAt do it, they would resent another doing
it, if it did apply to their States. Gentlemen on the other side vote for this
bill because thev believe that thev will not have to live under it, that they will
not have to be chosen under its provisions, that their people will be free from this
eDginerv, that their States will not be subjected to the horde of mercenaries that
this law may turn loose.
  But the future is uncertain. The exigencies of the future may put this power
into the hands of other parties. I have seen the Whig party go into history. I
have seen the Know-nothing party destroyed. I have seen the Democratic party
using force in Kansas to make the elections a lie, lose power by the very men
which it took to perpetuate its power. Therefore I am not to-day pleading merely
as a Democrat, but I am pleading for every section of the country, for every dis-
trict in the country, that the House of Representatives may continue to be the
representatives of the people, chosen by a majority of the voters, at a ballotbox
not controlled by mercenaries. Floul applause on the Democratic side.]
  Mr. Speaker, I take advantage of the permission of the House to submit more
fully some observations on this measure.
  It may be that Congress has the right under the Constitution to enact a Federal
election law, and that it is expedient to exercise that power in the present condi-
tion of the country, but it does not by any means follow that the proposed election
bill is either constitutional or expedient.  It may be possible that all which has
been so earnestly if not generously and accurately, urged by gentlemen on the
other side as to the condition of the negro in the South, and as to frauds hereto-
fore committed in some of the larger cities of the North is true, and yet it may
be also true that this proposed bill is unconstitutional, unwise and iniquitous.
  It devolves upon gentlemen who advocate and vote for this measure to dem-
onstrate not only that Congress has the power to enact an election bill and that
the condition of the country requires its enactment, but that the particular pro-
visions of this bill are wise, impartial and necessary. I beg to impress this upon
the members of this House and upc n the country. The real contest between us and
the gentlemen on the other side is not only as to the power of Congress to pass an
election law, or as to the possibility that there are frauds committed at the
election of certain Representatives, but that this proposed measure Is obnoxious
to the provisions of the Constitution, is unwise in its general scope, and is iniquit-
ous in its particular provisions.
  This bill has fifty-seven sections, some of them containing as many as fourteen
subdivisions; it re-enacts twenty-nine, repeals ten, and amends six other sections
in the Revised Statutes; twenty-one sections create crimes and misdemeanors and
fix penalties. It is seventy-three pages in length. It was introduced into the
House on Saturday, June 14; was reported to the House on June 19, and was
taken up for consideration on the 26th. Of course, such a bill can not be
thoroughly dicested in so brief a time even if Representatives were able to devote
their whole time to its consideration.
  This mode of legislation necessarily produces vicious results; necessarily must
the grave and important interests of the people be imperiled, and their rights be
in danger. This House ought to refuse to consider such a bill in such haste, and
its duty to itself requires that it will not be forced by the decree of caucus, by the
exigencies of party, or by the fear of party censure, to pass a measure so long, so
complicated, so revolutionary, without ample time, careful deliberation, and full
opportunity for amendment.

 
5



  But as the House has ordered the consideration of the bill it is forced upon us
to examine its provisions.
                    THE CONSTITUTIONAL POWER OF CONGEESS.
  The first section of the Constitution is:
  All legislative powers herein granted shall be vested In a 0)ngress ot the Unitel States, which
shall consist of a Senate anst Eouse of Representatives.
S c. 2. The House of Representatives shall be composed of members chosen every second year by
the people of the several States, and the electors in earth State shall have the qualifications requisite
for electors or the most numerous branch of the State Legislature.
                                             v                  o
 Szc. 3 The Senate of the United States shall be composed of two Senators from each State, chosen
 by the Legislature there )f. for six years; and each Senator shall have one vote.
 It is perfectly evident that the phrase in the second section, " chosen by the
 people of the several States, and the electors in each State shall have the qualifica-
 tions requisite for electors of the most numerous branch of the State Legisla-
 ture," and the phrase in the third section " chosen by the Legislature thereof,"
 are precisely equivalent.  Thev describe the electors who shall choose the
 Representatives in the first instance, and the Senators in the second instance. In
 neither case did the Constitution undertake to select these electors, but solely
 to indicate those who should be qualified by the several States, in the one case
 by the proper action of the State through its constitution or laws, to wit, the
 "electors of the most numerous branch of the State Legislature," and in the Eecond
 those chosen under the constitution of the State and by the people at the prescribed
 times and in the prescribed mode, as members of the Legislature.
 BEcrs. The times, places, and manner of holding elections for Senators and Representatives
 shall be prescrlb-d in each State by the Legislature thereof, but Congress may at any time by law
 make or alter such regulations, except as to tlhe places ofr choosing Senatoors.
 It is demonstrable that the power of Congress to " make or alter " the regula-
 tions as to " the times " and " manner of holding elections for Senators and Rep-
 resentatives"is precisely the same, It has constitutionally exactly the same
 power to prescribe the times and manner of holding elections for Senator that it
 haas for Representative; no greater and no less. Its power is limited so that it can
 only " make or alter" regulations as to the - times and manner of holding elections"
 of Senators, and of the times, places, and manner of holding elections for Repre-
sentatives.
  It can no more hold the election for Ropresentative than it can for Senator. It
can no more create offices of its own and provide the offieprs to superintend and
conduct and certify the election of Representatives than it can hold, conduct
and certify the election of Senatore. It has the same power to prescribe how
the members of the legislature shall be elected, qualified, an(I perform their
duties as it has to prescribe how the electors of R1epresentatives shall be selected,
qualified, and perform their duties. I want to make this point perfectly clear,
because I think that if it is once distinctly understood that the broad claim made
by the gentlemen on the other side applies in the future to an election bill ousting
the lieutenant-governor and speaker of the house and other officers of the State,
and turningover the election of Senators to appointees of the Federal judic ary
and depriving the State officers of the power to certify the election, and giving it
to a board of canvassers, it may be that a halt will be called.
  The election of Senators and Representatives was to be by the States. As to
the Representatives, by the voters at the polls; as to the Senators, by the L'-gis-
lature; but in each case each was to be chosen by the people of the State.  It
must be remembered that the power of a State to choose its Representatives in
any legislative body which might have been formed by that convention was nec-
essarily anterior to the formation of the convention and its adoption of any con-
stitution. The particular form of Legislature which might be created, whether it
should be bicameral or ccomposed of a siniole house, did not abridge this anterior
right of the State, but simply rendered some prescribed mode necessary. If that
Legislature waE to consist of but one house, then that convention might be at a
loss to decide whether the Representatives should be chosen by the people of the
respective States at the polls, by the Legislatures of those States, or in such mode
as each State might determine.
  As a bicameral Legislature was determined upon by a convention composed of
delegates from large and Email States, a compromise was made by which the

 
6



States as States, by their Legislatures, without regard to population, chose tbeir
Representatives in one House, which was called the Senate, and chose by popu-
lar election, in proportion to numbers, their Representatives in the other House,
which was called the House of Representatives; but the right of the State in
each case was precisely the same " to choose their Representatives." The mode
of choosing, the electors choosing, and the basis of representation were different.
  For the purpose of self-preservation the Federal Government was given the
power, through Congress. in case the States failed to provide a manner of thus
choosing its Senators or Representatives, to provide that manner, and as incidental
to the providing of the manner it was given the power to provide the times and
places of election, except as to Senators; it could not change the location of the
capital of the State. And the language of the fou-th section must be construed in
the light of the anterior power of the States to choose their Representatives, and
of the duty imposed under the second and third sections that they should choose
their Senators and Repressentativee.
  To have power to prescribe the manner of holding elections does not include
the right to hold the election. The word " manner " is synonymnus with mode.
To Prescribe a mode of doing an action does not give power to do the action.
It does not invest him who has the mere right of regulation limited in terms to
the manner of doing a thing with the power of actually performing the action.
The power to prescribe how a thing shall be (lone is generically different from
saying who shall do it or from the power to do it.
  It is, no matter how plausibly presented, an extremely shallow claim, utterly
unjustified either by the rules of the language or by any rule of construction, much
less by the nature of our Government and the relation between the General Gov-
ernment and the States, to hold that the power, even if it were a primary and
-original power, to prescribe regu'ations for the manner of holding elections con-
ferred upon Congress the power to prescribe who should hold the elections, who
should vote at such elections, and give to Federal cfflhers the authority to de
cide challenges as to the qualifications of the electors, open and hold the polls
at precincts, and issue certificates which would give prima facie title to seats on
this floor.
  It is not true that the Supreme Court has ever decided that Congress had this
power. Neither in the Siebold case (l1f( United States), nor in that of Yarborounh
'1Ii) United States), was such a decision either necessary or possible. It was not
necessarily involved in either, and the dicta of the distinguished judges who pro-
nounced those opinions are entitled only to the weight which the character and
learning and virtues of those particular gentlemen give to what they might utter
from the bench. I deny that that court is committed to the monstrous proposi-
tion that the Gongress of the United States has the power to hold through Federal
officers elections for Senators representing the States as States, or for Representa-
tives who represent the people of the States respectively.; nor can I believe that
under any circumstances will that court ever so hold.
  That the Supreme Court, in cases properly made up by litigants, has the power
to pass upon the constitutionality of ac' i of Congress as affecting the private rights
and interests of those litigants as involved in that litigation is undeniable; but
there resides in it no power to declare what is the duty of the Congress of the
United States, its coordinate branch of the Government, in any given matter sub-
mitted to its legislative action. I protst against the sentiment pronounced on this
floor that the dictum of any jndge uttered in an opinion and announcing the de-
cision of that court in a private litigation between private citizens can bind the con-
sciences and judgments of the members of Congress. Where the power sought to
be exercised is doubtful, it ii a weighty argument against the adoption of a law
that the Supreme Court has held that such a law or one analagous to it was not
within the provisions of the Constitution, but this is wholly different from the
argument in such doubtful cases that Congress ought to exercise that doubtful
power because eminent judges in (bittr dicta have made utterances which seem to
construe the Constitution favorably to the ex r ise of the power.
  I do not hesitate to aver that this proposed uill is beyond the power of Congress;
that it is in violation of the fundamental principle announced in the second
and third sections of the Constitution; that the Representatives and the Sen-
ators shall be "chosen" by the people of the States and the Legislatures thereof.
But I will not pursue this line-of argumrienit, simply desiring to put on record this
opinion.

 
7



                             IT LS ANTI-BEPU BLICA N.
  The fundamental principle of a republican, as distinguished from a democratic
government, is that all laws shall be enacted by lefls ative bodies composed of
representatives chosen in some prescribed mode. Great jurists have held that it
is not within the power of Congress or the Legislatures of the various States to
enakt any law dependent for its efficiency upon the subsequent vote of the people.
  I have always held this view; but there are some exceptions to it so weighty
and so well established as to render the general principle subject to exceptions;
but as a rule, all will agree that statutes should be enacted by the representatives
of the people. That the wisdom and expediency of passing a certain law and
subjecting the people to its operation and requiring of them obedience to its pro-
visions ought to be the act of a legislative body composed of the representatives
chosen by the people, will be admitted by all. So all will agree that, as a rule, all
laws should be general in their operation, universal in their application, and
uniform.
  This act violates not only this general principle, but also that which lies at the
foundation of all democratic and republican governments-that in a given com-
mnnity the majority therein shall rule as to its local affairs. This act does not take
effect by its passagethrough Congress and its approval by the President, nor by its
adoption by the majority of the voters of any given city, county, or Congressional
district. 'the precedents for wsch an act ought not to be enlarged. It is not seemly
that in two Congressional districts lying side by side in the same State there
should be different election machineries; that in one fifty or one hundred per-
sons-not a larger number than might expect to receive appointment un ir this
act-who do not have to be, but only claim to be, citizens of the district, should
have the power against the will of a very large, if not unanimous desire of all
the voters save these fifty or one hundred to impose upon that district an ob-
noxious, arbitrary, and fraudulent election machinery, while on either side of
that particular district the contiguous districts hold their election free from these
obnoxions and fraudulent provisions. Of course the purpose of this is well under-
stosd, but it is one that does not justify the act.
  The central committee of either of the great parties could issue from Washing-
ton or any Eastern city an order to a particular district, which would be obeyed
by the fifty or hundred who are by this bill made the legislative power to enact
this provision into efficient law, that would put under its operation such a district
as in the opinion of that committee could be carried under this law. This pro-
vision makes the central committee of either party the Congress of the United
States for the election laws under which Representatives in Congress must be
chosen. It isan intentional conference of the power by Congress upon the party
managers to examine the returns and conditions of every Congressional district in
the United States and to decide whether the exigencies of the party require that
this la w shall or shall not be enacted as to each particular district.
  I am not now speaking as a Democrat denouncing this bill as a weapon forged
by Republican committees and brought out of a Republican cams into a Repub-
lican House by orders which that caucus dare not disobey, but I am speaking as
an American citizen looking to the future The present operation of the law in
the pending election will be, or it is supposed that it will be, for the benefit of the
Republican party. But, in a broad sense of the word, parties are not permanent.
I have lived to see the Whiz, the Know-nothing, and other parties go to pieces,
I expect to live to see the Republican party pass into history. I have seen the
Democratic party lose power by division. The changes and fluctuations of the
future are to be taken into account by those who legislate for a free people, and this
act is not merely a temporary transference of Congressional power under the Con-
stitution, but it may be a permanent transference of power; so that that party
which can obtain control of this machinery may secure Congress.
  ULnder this bill the election of the President will be in the hands of the officers
app)inted in accordance with its provisions. That this is one of its purposes
seems to be clear; and it may be that the States may be driven to change the
time, if not the mode, of choosing Presidential electors. This can not be accom-
plishel before the election of 1892; and those who have forced this measure on
Congress hope to secure the Fifty-second and Fifty-third Congresses and the next
Presidency; and these prizes would repay them for all done and expended to
enact this law.

 
8



  Any Federal election law, in my judgment, is unwise. Any Federal machinery
is inexpedient. With the States controlling their elections there can be only
local frauds and only temporary mischief. In the give and play of counteracting
forces these frauds will genera ly offset each other. The average result in a series
of years will about be equal on either side; but if there is but one machinery
applicable to all elections in every part of the country, and that machinery falls
under the control of a single will and it desires to perpetutate power by the use
of that machinery thus given to its control, it will see that the control is perpetu-
ated; that that machinery is prostituted for that purpose; that it is used to ac-
complish that end, and then there can be no way of destroying that power thus
arbitrarily and fraudulently perpetuated save either by an overwhelming revolt
of the people or by an appeal to extra-legal means.
  It is a step in the wrong direction. It is not only unwise in that it turns over
the elections to a single machine dominated by the will of the party in power, but
it is iniquitous in that it directs that party to go into any community and by the
bribery of office and the pay attached to those offices use " the lewd fellows of the
baser sort " who exist in every community, to corrupt the elections of the people
and really take from them the right of choosing their Representatives. It is in
another mode the old Roman idea by which the Emperor preserved power by
false elections. It is the Napoleonic idea put into American politics, that-the
Emperor controlling a universal plebiscitum controlled the government.
  The bribes that can be given may control the election, and where it does not
happen to turn out as is expected, the officers who hold their office at the will of
that party and are its creatures and subservient to its purposes will see to it that
the counting of the ballots is made to utter the voice which it desires the ballot-
box to proclaim. Under this act, with its multitudinous army of officers, none of
whom are responsible to the people - all of whom are appointed by partisans;
all of whom are tempted by the pay; most of whom must necessarily come from
those most easily corrupted, there is danger.
  I will not sav that that danger is certain, for I believe that it will be averted by
a revolt of the American people, but I repeat, there is danger of the power at
Washington selecting such districts as can be won by fraudulent means, by a con-
spiracy between the appointing power and those who are corrupted by the bribes
offered by this bill, and then such number of Representatives may be chosen as
will make in point of fact the House of Representatives selected by the machinery
of this bill, and not by the voters at the polls. It is true that when the three
hundred and thirty Representative districts are examined, a shrewd and well-
informed politician can calculate that a certain number of districts will undoubt-
edly go Democratic, and a certain number will go undoubtedly Republican. The
residuum put down as doubtful is the prize of contending parties. This bill gives
to the party in power the opportunity to select through the machinery that it
creates the Representatives from those doubtful districts, and thus control the
House of Representatives.
                                 SUPERVISORS.
  By the twenty-second section the chief supervisors hereafter to be appointed
must be selected from the circuit court commissioners. As for the last twenty-
five vears the circuit judges of America have been, with scarcely an exception,
Republican, it is not unnatural that almost without exception the circuit court
commissioners are gentlemen who agree in opinion with the judges, and are Re.
publicans. This is not unnatural, for it is to be expected that a judge wculd be
most apt to appoint out of persons who are equally well qualified, those with whom
he is most thrown into contact, with whom he has most intercourse, and between
whom and himself there are the most points of agreement. This is not, however,
an accidental provision. This is intentional. It may be that there are Demo-
cratic circuit judges who have not taken the trouble to change the commissioners,
and who are by this act compelled to appoint a Republican as the chief supervisor.
  We may therefore assume that as a rule the chief supervisors-some Feventy in
nurxber-will be Republican. They substantially control the appointment of the
districts smpzrvisors. for the courts may only appoint from lists furnished by the
chief superviors; so that two-thirds of the officers under the chief supervisors
will be Republicans chosen bv him. The other third will be nominal Democrats,
and in the main cnly ncm.nal Demo-ratc. They will be chosen for reasors that

 
9



do not include their Democracy. We have seen in the action of the present Admin-
istration what the Republicans construe as the meaning of laws which require the,
appointment of Democrats, or such appointments as good taste dictates shall be
from the Democratic party; and with very few exceptions it is well known that
those appointees are not such Democrats as a Democratic President or convention
, ould have chosen.
  But these Democratic supervisors are absolutely without any power. The
whole power is granted to the majority of the board, so that in a board of three
composed of two Republican and one Democrat, the Democrat has no power
whatever except to file, if he chooses to do so, a certificate reciting a state of fact
different from that recited in the certificate signed by the majority, which certifi-
cate signed by the Democrat is given no validity anywhere and is of no effect.
  The deputy marshals are appointed by the marshal, every one of whom iv
or will be Republican before this bill goes into effect, either of his own selection
or at the direction of the chief supervisor, and the chief supervisor has un-
limited power of suspension from office and of control over his subordinates.
hiB warrant in the shape of a certificate of estimate of the necessary expenses to
the Attorney-General is made by the twenty-third section of this bill a compul-
eory order to the Attorney-General, without delay, to cause to be deposited in a
subtreasury or in a Government depository in the judicial district from which the
estimate shall be sent, to the credit of the marshall of the United States of said
district, the sum of money he so estimates; and to pay these estimates the law
makes it a permanent appropriation, so that if the next House or any House
should be by Providence Democratic, the Treasury of the United States is abso-
hltely without any protection by that House.
  He is also made an officer for life, so that no changes that may occur, except
his death, would relieve the district of which he is chief supervisor from his
domination. Under his orders his subordinates have the power-it is made their
duty, in fact-to make a canvass from house to house of every city and obtain a
perfect list of the voters residing therein, so that at the expense of the tax-pavers
he may have for the benefit of his party absolutely accurate knowledge of the
views and circumstances of every voter, and thereby be enabled to bring to bear
upon every voter whatever corrupt means may be thought best suited to his
condition
  Under subdivisions 6, 11, and 14, of section 8, every city, town, and village may
be subjected to these domiciliary visits. In these visits the officer and the voter
are alone; this secret conference affords the opportunity for bribery or intimida-
tion, and the tax-payer contributes the pay for this chance to debauch the suffrage
and demoralize the voters of America.
  The enormous power of corruption thus put into his hands is beyond calculation.
There is a widespread suspicion that in the last canvass the Presidency of the United
States was substantially purchased by contributions supplied by those who ex-
pected to secure from legislation under a favorable administration many times the
sums contributed. This puts into the hands of organized capital a complete list
cf all doubtful voters In every doubtful district in America, and furnishes this list
at the public expense, and furnishes the willing tools paid out of the public
Treasury to see to it that the means adopted shall be properly applied to the
voter selected. It is absurd for any advocate of this measure to pose as a ballot
reformer.
  There may be some gentlemen so ignorant of its provisions, so innocent of the
political methods employed in the last canvass, so unfamiliar with the means em-
ployed to debauch the voters, as to be enabled to conscientiously vote for this bill
without believing that its en