Ост. 3, 1837.]

unforeseen cause, when the connexion evidently suggests such a meaning, but which, in its general and popular use, does not necessarily bear such a signification.

To show, however, that such must be its meaning, the authority of lexicographers has been introduced. We were last evening furnished by the gentleman from Ohio, [Mr. MASON,] with a definition from Johnson, favoring the signification contended for. But, sir, this is a question which is not to be conclusively settled by dictionaries. There are shades of meaning to numerous words in our language, depending on the various connexions in which they are used, which no dictionaries accurately describe, but in regard to which, plain common sense will seldom be mistaken. Such is the present case. Let a man of good common sense take up the constitution of the United States, and read❘ that "when vacancies happen in the representation from any State, the executive authority thereof shall issue writs of election to fill such vacancies," and what will be his first impressions?-especially when he finds that this is the only provision for filling vacancies and securing to the people the full enjoyment of the great fundamental right of representation. Will he search for a restricted meaning to the word "happen," which shall manifestly defeat the great purpose of the provision in regard to a large class of cases which cannot be supposed to have been unforeseen by the framers of the constitution? Will he not rather find deeply impressed upon the whole context, the idea that all vacancies, however occurring, were intended to be provided for?

I admit that violence must not be done to language for the purpose of giving it a scope which shall embrace cases presumed to have been within the contemplation of those, who used it. If it clearly and undeniably means one thing, and that only, no intendment, however beneficial or necessary, must be permitted to enlarge its meaning. But is the meaning of the word happen in this case so clearly and undeniably what is contended for by the objectors to the validity of the election? Far from it. The very authority which has been quoted by the gentleman from Ohio, shows that it is not; for among the varieties of signification which it gives to the word happen, I find the following-"To fall out-to chance-to come to pass." The vacancies in the present case have not, it is true, fallen out by chance-having been produced neither by death, resignation, nor any other unforeseen occurrence. But they have come to pass" by the operation of two established laws; the one termanating the existence of the 24th Congress on the 3d of March last, and the other fixing the election in Mississippi for the succeeding Congress in November next. Surely, Mr. Speaker, the opponents of this election cannot contend that the word happen is clearly and undeniably restricted to a mere contingency; and therefore they have no right to insist on a meaning in this case which shall fail to carry out the obvious intent of the framers of the Constitution. But if the construction for which I contend were less certain; if it were doubtful whether happen means the one thing or the other, the argument would still be conclusive in favor of the election. How are doubts to be regarded in a case like this? Favorably, beyond all question, to the rights of the people-the great object intended to be secured by the provision in question. What is the rule in the case of a common grant? That the grantee shall have the benefit of all doubts arising upon the construction of the terms of the grant. Thus a grant of franchises from a king to his subjects would be construed liberally in favor of the subject. It is true here is no grant; but there is a reservation of right to the people for å great and valuable purpose; and all intendments should be in favor of the full and free enjoyment of this right.

I have said that the construction in cases of doubt should be such as to secure the purpose of the grant. What that

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purpose is has been well described, in an analogous case, by Mr. Wirt, while Attorney General of the United States. In the year 1823, the question arose whether the President could, under the authority to fill vacancies happening during the recess of the Senate, fill a vacancy which occurred during the session of that body, but which, not having been filled by it, remained vacant after its adjournment. Upon the submission of this question to him by the Presi dent, Mr. Wirt decided, that the vacancy happened, within the meaning of the constitution during the recess of the Senate, though originally occurring before its adjournment; and that therefore the President might properly fill it. In giving this opinion he said:

"The substantial purpose of the constitution was, to keep these offices filled; and powers adequate to this purpose were intended to be conveyed. But if the President shall not have the power to fill a vacancy thus circumstanced, the powers are inadequate to the purpose, and the substance of the constitution will be sacrificed to a dubious construction of its letter. This seems to me to

be the only construction of the constitution which is compatible with its spirit, reason, and purpose, while at the same time it offers no violence to its language; and these, I think, are the governing points to which all sound construction looks. The opposite construction is, perhaps, more strictly consonant with the mere letter. But it overlooks the spirit, reason, and purpose; and, like all constructions merely literal, its tendency is to defeat the substantial meaning of the instrument, and so produce the most embarrassing inconveniences.

Now, Mr. Speaker, I submit whether there is a single reason for the decision of Mr. Wirt in the case cited, which does not apply to the case before us? Is it not, in fact, more important that his construction should be adopted in this case than in that? That was the case of a vacancy in a mere collectorship. This in the representation of the people in the most important legislative assembly in the country. If it might, in that case be said, surely it may be in this, that "the opposite construction overlooks the spirit, reason, and purpose" of the constitution, and tends to "defeat the substantial meaning of the instrument."

Having thus, as I trust, shown that there was a vacancy in the representation of Mississippi which might be constitutionally filled by a special election holden under the call of "the Executive authority thereof," the question arises→→ what was the vacancy to be filled?

It is contended that the vacancy to be filled was the representation from the State of Mississippi for the entire term of the the 25th Congress, and therefore, although the freemen of that State were required by the Governor "to fill the vacancy until superseded by the members to be elected" in November next, yet, that the returned members were, in fact, elected for the term of two years from the 3d of March last.

What was the legal limit of the vacancy is the question. Independent of any constitutional provision it had no limit; that is, there was an absence of all future representation from that State. But this perpetual vacancy was limited by the constitution-that instrument providing that elections of members of Congress shall take place "every second year." The same constitution, however, let it be remembered, also provides that "the times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof." When, therefore, a State, in pursuance of this provision, prescribes the time for electing its representatives in Congress, and that time is after the occurrence of a vacancy by the expiration of a previous Congress, it manifestly becomes the limit of the vacancy, so far as respects the power of filling it by a special election. No other construction, it seems to me, can satisfy the plain in

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tent and meaning of the constitution. That intent evidently is, that the extraordinary instrumentality of executive writs of election thall be employed only to supply the defect of permanent law. It must therefore be used, not to supersede such law, but to supply its omissions.

The

[OCT. 3, 1837.

the congressional term commences. They have done it in full view of the possibility that there may be, as there has been this year, a necessity for an earlier meeting of Congress, and that, therefore, seventy-eight members of Congress might be elected under special writs issued by the Governors. Nor have they made any provisions that such special elections shall supersede the operation of their standing laws. Is the construction thus practically given to the constitution by nearly half the States in the Union to be disregarded?

It thus seems to me manifest that the legal limit to the vacancy, in reference to the power of filling it by special election, was the time when the election of representatives to the 25th Congress was to take place, according to the standing law of Mississippi, made in pursuance of the same constitution under which the special election, in this case, was holden.

Such, it seems, was the view taken of the subject by the Governor of Mississippi when he restricted the time for which the vacancy was to be filled by the special elec

tion.

But the Governors of the States, it should be remem.

to fill vacancies, to the case of a necessity for a special session of Congress. Vacancies exist on the 4th of March, in all the States in which elections have not been previously holden, which may be forthwith filled by orders of the Governors, under the general power to order elections to fill vacancies, and who may thus obtain special elections for the entire Congress, although the time for its meeting should not occur till after the times provided by law for the elections. The power of filling vacancies, provided for in the constitution, merely for the purpose of meeting extraordinary emergencies, may thus, to gratify the caprice, or subserve the party purposes of a Governor, be made to supersede the standing election laws of a State.

But this restriction, say the Committee of Elections in their report, was surplusage. "Reject this as surplus. age, (say they,) then the writ is good, and the objection amounts to nothing." Suppose it be rejected as surplusage. Can this alter the legal effect of the special clection? Suppose the Governor had required the freemen of Mississippi to elect two representatives to Congress without restriction. Would this have superseded all the restrictions imposed by the constitution, and the law of Mississippi, made in pursuance of it? Can the Governor of a State, by any omission or addition, give an effect to an election which the constitution and law do not give Surely no one will contend for this. None will venture to maintain that the Governor of a State, when he has ordered an election, can, either by fraud or mistake, deprive the people of their constitutional rights in regard to it. If by "surplusage" the committee mean that the Governor's limitation was unnecessary, they mean precisely what I contend for. If they mean that it was illegal and uncon stitutional, they assume what they ought to prove. And this is evidently what they do mean. "Reject it as surplusage, and the writ is good, and the objection amounts to nothing." That is, assume that, in the face of the law of Mississippi, made in pursuance of the constitution of the United States, the election for the two regular sessions of the 25th Congress was not to take place in November next, but that it might be entirely superseded by the Governor, upon the occasion of ordering a special election for a special session, and all difficulties are at once removed--the writ becomes a valid warrant for an election for the entire 25th Congress, and the objection amounts to nothing! This certainly is a very convenient and labor-saving method of disposing of a constitutional difficulty, and giving seats to two members on this floor, for a term which was entirely beyond the contemplation of the people who elected them.

Let me, Mr. Speaker, briefly suggest another argument in favor of the construction for which I contend. Eleven States of the Union have fixed the elections of their members of Congress at periods subsequent to the expiration of the Congress next previous to that for which they are to be elected; and these eleven States return 78 members to this House-about one-third of the whole number. Now what construction have they given to the clause of the constitution which makes provision for filling vacancies ? They have all declared that elections shall take place at times subsequent to the 3d of March in the year in which

It is no answer to this argument to say that the Governors would not thus abuse their power. It is enough to say that they have the power, upon the construction contended for. It is no republican doctrine that a dangerous power may be safely admitted to exist upon the presumption that it will not be abused. The security of the people's rights is not to be left to such frail safe-guards as this. I admit, indeed, that the danger of an abuse of power must be directly met where the power is clearly and undeniably conferred. But where its existence, as, in the present case, is, to say the least, doubtful, the argument from its probable abuse is to be allowed great weight against its existence.

The construction for which I contend, avoids the danger of an abuse of power by the Governor. It gives full effect to the standing election laws of those States which have provided for elections after the commencement of the congressional terms, while it 'supplies the want of earlier elections in all the cases in which such elections may be required to give the people a full representation in Congress at such early extra sessions as the public exigencies may require.

I have thus, Mr. Speaker, attempted to show: That the vacancies "happened" on the 4th of March, in the representation from Mississippi within the meaning of the constitution.

That those vacancies were limited in their duration, not by the termination of the 25th Congress, but by the time when the election is to take place under the standing law of the State of Mississippi; and

That the returned members (Messrs. Gholson and Claiborne) have been duly elected to fill those vacancies, and are, therefore, entitled to hold their seats until an election of members, made in pursuance of the law of the State they represent.

If the construction for which I have contended is not sustained, and the returned members are admitted to seats for the entire term of the 25th Congress, it will not only be in derogation of the constitution and law, but will manifestly defeat the expectation of the people of Mississippi, who were led, as well by the constitution and law, as by the express terms of the writs of election, to regard the vacancies they were filling as terminating with the election of members to be chosen on the first Monday and day following in November, 1837, and not on the 3d day of March, 1839.

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ple. The holder of it may lose 4 per cent. upon it in six hours after he receives it from the Secretary of, the Trea

sury.

This plan of Government paper was tried by the French Government, under the auspices of the famous Mr. Law, and nearly ruined that nation. You are trying it now under the auspices of Mr. Gouge, and will not be willing to abandon it until you bankrupt half of the people. You lay your foundation upon issues of ten millions, and by and by you will desire to enlarge it to an hundred millions. You refrain from restricting the Secretary, and may have reasons in your bosoms which you are unwilling to articulate. Yes, sir, to redeem these notes may create a pressure, and then you may think it advisable to enlarge the issue. Such contingencies may rise.

Only one gentleman [Mr. THOMAS] who has advocated the bill, has taken the open and distinct ground, frankly and fairly to call this measure, in direct terms, a loan. He says that the Government must resort to either an indirect or a direct loan. I differ with him in this: I am in favor of a direct loan, he is for what he regards an indirect loan. This currency which you propose to issue will never enter into the general circulation of the country. If you borrow money, (at the same time create a sinking fund,) and pay your debts with it, it will diffuse itself through the interior, and will enter into the general circulation of each State and neighborhood.

I cannot disabuse my mind from the belief that this is designed as the mere incipient step of a vast executive bank. Why will not gentlemen vote for the amendment those who are in favor of divorcing the Government from the people and the Goverment from all banks? Why not vote for selling these bonds?-why keep up this quasi connexion between the Government and the Bank of the United States? Are these bonds to be kept as kites hovering over the bank? are they to be held in terrorem over the bank to prevent it from enlarging its business, and relieving the people? Are they to be kept until some hoped for emergeney, when you can make a sudden call on the bank, in hopes of hishonoring its credit at home and abroad? England restrains, yet fosters, her bank credit. In this country the Executive wages a war of extermination against all banks and the credit system. One ignorant of the people of the United States, would think, to hear some of the friends of the administration speak, that they are the most corrupt people in the world-that they could be bought up by banks like live stock in the market.

[Oct. 6, 1837.

I am opposed to improper Executive power in the Federal Government. I have been and am opposed to it in my own State. I have been consistent if I have not been successful. Because it is in the hands of my own party in Maryland, I have not been convinced that it was right for that reason. I have opposed a miserable edict issued by the Executive of Maryland, which he called a proclamation, and which did not contain scarcely one sound principle of republic anisin-which went the whole length of denying the right of the people to alter their constitution. And for this opposition I was called a demagogue. Yes, sir, the greatest in the State, excepting a colleague on this floor. [Here Mr. JOHNSON was interrupted by Mr. JENIFER, who said that his colleague, Mr. JOHNSON, was discussing subjects which were irrelevant to that under debate.]

But

Mr. JOHNSON resumed. He said that he was the last man to wound the tender ears of his colleague. He knew that he was a gentleman of delicate nerves, and tender conscience on this subject. That gentleman may reason by induction; I perhaps argue by analogy ;-at any rate, I will not desire to be a copyist of my abie colleague. he could not but express his surprise that that gentleman should call him to order for alluding to a subject which that honorable gentleman discussed at great length in this hall at the last session. Yes, sir, the only speech which I have ever seen printed of my honorable colleague, was a speech he made against reform in Maryland; which may account, very rationally, why that question is so much stronger in Maryland since. And if he will favor this House with another, I will promise to listen with much less disquietude than that gentleman has evinced. I may imitate him in one respect, and, perhaps, I may be speaking now as the gentleman was speaking then, for home consumption. [Confusion and great laughter. The Chair called the House to order, and begged the gentleman from Maryland to confine his remarks to the subject under discussion.] Mr. JOHNSON resumed. You are correct, Mr. Chairman, in, calling the House and myself to order-and in calling the House to order first-for there is more disorder with the House than with myself. [Renewed laughter and excitement.] But I will relieve the house and you, Mr. Chairman. This is mere episode. I wish to see reform triumph in Maryland, and I wish to see it triumph in Washington, and there is great necessity for it in both cases. And hence it is that I oppose the bill on the table; for that reason I shall vote for the amendment. bank is the horrid monster you say it is, why not divorce yourselves from it. If it is as vile and corrupt as you say it is, why do you insist upon the connexion? I wish the bonds to be sold to benefit the emergencies of the Government; also that gentlemen may rest upon their pillows, so that this spectre bank may no longer haunt their im

If the

I have another objection to the bill. No time is specified for issuing these Treasury notes; he may issue part this year, part the next; his discretion is to be the only law. You give him the power also to effect loans if he cannot redeem the Treasury notes. In other words, you give the Secretary all the legislative power which you possess under the constitution, and you give him power to do that which, under the constitution, Congress has no power to do.