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enjoyment of their rights and privileges under the Constitution, and especially this great and invaluable right of representation, of helping to make the laws which they are bound to obey. Our duty to protect is as clear as their duty to obey. They are reciprocal and interdependent.

We may meet this question of the issue of writs of election in another manner. The question, whether these writs were properly issued or not, is a technical question, and we can meet it by a technical answer. We may meet the objection, that the writs were not issued by the executive authority of the State, by saying that they were issued by the only executive authority of that State which the Government of the United States or the people in these districts in any way recognize, and which, in matters of highest concern, they have recognized and obeyed. The writs of election were, in fact, issued upon the earnest request of the loyal citizens of these districts, and were responded to and confirmed by them.

But I do not consider the strict legality of these writs vital to the issue before us. I

go one step further. I contend, whether these writs were issued by the executive authority of the State or not, this may be a valid election. I contend, that this provision of the Constitution, as other provisions of statute in relation to this subject, is within the well-settled distinction between provisions which are directory and those which are essential. I say, under the law of elections, practised upon from the beginning of the Government to this hour, you have gone behind the mere form to get at the

substance and truth of the thing; and that these safeguards, provided by the laws to secure to the citizens the orderly exercise of the right of election, were never intended to be used as barriers to exclude them from their enjoyment. Let me call the attention of the House to elections whose validity this House has recognized, and which proceed upon this distinction.

Mr. PORTER. If I understand the gentleman from Massachusetts, he asserts, that, there being no Governor of Louisiana elected in pursuance of the provisions of her constitution and laws, the military commandant appointed by the President, who has assumed the title of Military Governor, is to be regarded as the Governor or executive authority of the State within the meaning of that clause of the Federal Constitution which provides, that, in case of vacancies in the representation of a State, the “executive authority thereof” shall issue writs of election.

Mr. THOMAS. I do not state the proposition so broadly as that. What I have said is, that we are in the military occupation of our own territory, a portion of it where the laws of the United States have been impeded by armed force ; that we are there to enforce the laws of the United States; and that it is difficult to draw a sound distinction between the powers effective for the enforcement of the laws imposing burdens and duties upon the subject, and those which may be used for his protection. The gentleman is mistaken in his facts. Mr. Shepley did not assume the title of Military Governor. He was appointed Military Governor by the President.

Mr. PORTER. It seems to me that the gentleman is at fault in saying there is any law of the United States, so far as relates to the election of representatives in Congress, to be enforced. The Constitution says,

6. The times, places, and manner of holding elections for senators and representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing senators."

When Congress shall have passed a law prescribing the time, place, and manner of electing representatives, then the military power may be invoked to remove obstructions in the way of carrying it into practical effect.

Mr. THOMAS. The provision of the Constitution cited by my friend from Indiana is the one referring to the general elections of representatives, and not to the elections to fill vacancies. It is by no means clear that any legislation of Congress could remove the difficulty. In case of vacancies in the delegation of any State, the Constitution says “the executive authority thereof shall issue writs of election to fill such vacancies." The legislation of Congress cannot supersede or modify this provision; and after legislation, as before, the same questions would arise as now. Is there an executive authority of the State, within the meaning of this provision? Is it sufficient that the writ is issued by one claiming to exercise the executive authority, with the recognition of this Government and with the assent of the people ? Or is it our duty to go behind his certificate and action, and inquire, in a case where there is no conflicting claim or contest, as to the regularity of his

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appointment? And lastly, supposing that we were satisfied the authority was not regular; yet if a day was fixed, was known to all the voters, and the case shows they complied with the notice, and exercised the right of election fully and freely, must we or ought we to declare the election void because the authority issuing the writ was not regular ?

Mr. PORTER. The learned gentleman will see to what a dangerous conclusion his argument must necessarily lead him. The Constitution provides, that, “ when vacancies happen in the representation from any State, the executive authority thereof shall issue writs of election to fill such vacancies." There is also, however, another provision, as tó senators, that, “if vacancies happen by resignation or otherwise during the recess of the Legislatnre of any State, the executive thereof may make temporary appointments until the next meeting of the Legislature, which shall then fill such vacancy.” The same words, “ executive thereof,” are employed in both cases; so that, from the argument of the gentleman, it must necessarily follow, that the military governor appointed by the President may fill vacancies in the Senate of the United States. Surely no one would be willing to allow such an exercise of


Mr. THOMAS. I do not think such a conclusion necessarily or legitimately follows. There is a broad distinction between the exercise of an official and judicial judgment in selecting a senator, and the exercise of a power in appointing a day for the people to select their own representatives. It has not been the uniform practice of the House to hold that these writs shall be issued by the executive authority of the State. I call attention to the fact, that gentlemen have been allowed to take, and now hold, seats upon this floor, under the acts of the Provisional Convention and Governor of Virginia. I call attention also to the fact, that uniformly elections have been held in the Territories before their admission as States into the Union, and where, therefore, the elections were held without the action of State authorities.

Mr. PORTER. I would suggest to the gentleman from Massachusetts, that that power has been exerted solely under the third section of the fourth article of the Constitution, providing that “new States may be admitted by the Congress into this Union.” That clause has been interpreted to include the right to have all the officers at the time of admission necessary to represent the State in the Federal Congress.

Mr. THOMAS. Be it so; but that provision does not abrogate the other provision of the Constitution, which provides that the times and places for elections shall be fixed by the Legislature of the State.

The practice bends the form to the substance. The House, by a large majority, during the present term, determined that an election held at a time not fixed by the Legislature of the State, but in the constitution of the State, was a valid election, though clearly a departure from the letter of the law.

The point to which I was endeavoring to lead the House is the distinction between those provisions formal and directory and those that I deem essential; and that the House, in the exercise of its power to judge of the

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