252

CONGRESS AND ELECTIONS.

respectively, or to the people," which was adopted without debate.1

Burke now moved another amendment that, "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." This great question, destined to remain unsettled, provoked a lively discussion.2 Ames, with characteristic, comprehensive view of matters, declared that this was one of the most justifiable of all the powers of Congress. It was essential to a body, representing the whole community, that it should have power to regulate its own elections, in order to secure a representation from every part, and to 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." Livermore agreed with Ames as to the importance of the amendment. It had caused more debate in the Convention of New Hampshire than any other whatever. Ames had said it was a solecism in politics, but Livermore promptly cited the case of the election of Smith, of South Carolina, and asked whether State laws had not decided his qualification as a member of the Federal Legislature.3 "It was not supposed by the people of South Carolina that the House would question a right derived by their representative from their authority."

Madison, as the leader of the House, in charge of the amendments, objected to including with them this now submitted by Burke, principally on the ground that the

1 Id., 797.

2 Annals, 797-802.

3 For an account of this disputed election, see Annals, 1789, Vol. I, 413.

it was.

REGULATION OF ELECTIONS.

253

Constitution, on the point in question, stood very well as Gerry, Stone and Smith, of South Carolina, favored the amendment, Smith asserting that eight States had expressed a wish that the general government relinquish its control over elections. He cited New Hampshire, Massachusetts, New York, Pennsylvania, Maryland, Virginia and the Carolinas, but Carroll denied that Maryland was among the number, and he was supported by Stone who said that nothing of the kind was on the journals of the Maryland convention. Fitzsimons corrected him as to Pennsylvania, but Smith cited the amendment proposed on the subject by the Harrisburg minority. Sedgwick thought that Congress should be given power to alter the times, manner and places of holding elections, provided the States made improper ones. Sherman reminded the House that the Federal Convention was very unanimous in passing the provision in the Constitution on the subject, as it was of great importance. "If it was resigned, it would tend to subvert the government." Madison was convinced that Burke's amendment would tend to destroy the principles and the efficacy of the Constitution; therefore he was opposed to it. Smith, of South Carolina, here observed that the States had the sole regulation of the election of the President. Why were they indulged in this and prohibited to regulate the election of Senators and Representatives? Burke's amendment admitted the right of the general Government to interfere, whenever the State Legislature refused, or neglected to secure elections. It might be that the matter would be neglected by a State with no design to injure the general government. The two branches of the State legislature might not agree, as had happened in New York, when that State failed, recently, to choose Senators.1

1 New York was not represented in the Senate at this time.

254

THE UNITED STATES AND THE STATES.

Tucker objected to Sedgwick's amendment, because it would defeat the one offered by Burke. The general government would be the judge of inadequate, or improper regulations. Consequently it might interfere in any, or every election law which the State might pass. The State legislatures should be left to themselves to perform everything they were competent to, without the guidance of Congress. They knew best how to pursue their own good. It seemed to Tucker that there was a strong tendency in the general government to take upon itself the guidance of the State governments, which fact implied a doubt of their capacity to govern themselves. On the contrary, these could take care of themselves and deserved the more to be trusted because the rights of the citizens were more secure under them. Some States thought that election by districts was the best mode of choosing members of Congress; others preferred a general ticket. Might not Congress set aside their regulations? Virginia was divided into eleven districts and many of its citizens thought themselves abridged of nine-tenths of their privilege by being restrained to the choice of one man instead of ten, the number of representatives of the State in Congress. The mode of electing Senators was fixed. Every State, save New York, had established a precedent and New York suffered from her own act.

Goodhue, alarmed at the havoc that Burke's amendment would make, now declared that rather than it should take effect, he would vote against all that had been agreed to. His gravest apprehension was that, "the State governments would oppose and thwart the general one to such a degree as finally to overturn it." To guard against this evil, the federal government should possess every power necessary to its existence. But both amendments were lost; Burke's, however, only by a majority of five. The

APPORTIONMENT AND REPRESENTATION.

255 House then resumed Ames's proposition about the apportionment and the basis of representation and the amendment on the subject was changed to read: "After the first enumeration, required by the first article of the Constitution, there shall be one representative for every thirty thousand, until the number shall amount to one hundred. After which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred representatives, nor less than one representative for every forty thousand persons, until the number of representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than one representative for fifty thousand persons."

On the twenty-second, Tucker offered a new amendment, forbidding Congress to lay direct taxes, except when the income from the indirect was insufficient, and not then, till a requisition had been made on the States.1 In case a State failed to respond, Congress should levy the tax, with six per cent additional from the time of payment. Livermore pronounced this the most important amendment yet proposed. He and most of his colleagues had vague notions of the taxing powers of the government. The Confederation had collapsed for lack of these powers. State quotas had failed, yet many still had confidence that the quota system was the best for the country and had failed only because it had been mismanaged. Of that vast and complicated system of taxation which now goes under the name of a tariff act, Livermore and the supporters of Tucker's motions had no conception. The six per cent penalty was, they thought, a shrewd device likely to keep delinquent States in order.

1 Annals, 803.

256

DIRECT TAXATION.

But Livermore and his friends in Congress partook of a fear common at the time, that direct taxation by both the States and the United States would cripple the country. He cited several State amendments on this point. The only thing that would deter the general government from laying direct taxes would be the difficulty of managing the matter. "The modes of levying and collecting taxes pursued by the several States are so various, that it is an insuperable obstacle to an attempt by the general government." Sumpter, of North Carolina, went further: "If the power was not relinquished by the general government, the State governments would be annihilated." Gerry continued in the same strain. The fault with the Constitution was that every power of taxation was relinquished to the general government. The States should be left capable of supporting themselves. Now they were divested of every power. If they discovered a new source of revenue, the rapacity of the general government could take it from them. Sedgwick pointed out that a government entrusted with the very existence of a people ought surely to possess, in a most ample degree, the means of support, and therefore he opposed Tucker's amendment.1 His relief and that of the Federalists was speedy, for the proposed amendment was rejected by a majority of thirty. Gerry, doubtless thinking of one of Jefferson's suggestions about amendments, now offered one forbidding monopolies, and another, forbidding any one in the national service to accept any title of nobility or office from a foreign State, or any King or Prince; but his suggestions were rejected and the amendments lately adopted, together with a form of submission to the States, were

1 See Washington's letter to Jefferson, on this point, August 31, 1788.