March 26, 1962 (2)

The Senate resumed the , considera tioo. €>f tliHr motion of the Senato.r: from Montana (Mr. .. M.tmsFl:Ef.l)lJ to proceed. to the consideration of the joint resolution · (S.J. ' . - Res. 29) providing - for the e-st _ establishing ot the former dWelling house of Alexander Hamilton as ~ a na.r­ tional monument.

Mr .: ELLENDER. . M . adam President, when . l was: addressing myself to the question at issue- last week, I was 1 discussing · the · high caliber of the members of the Convention that: assisted in drafting our great Constitution. stated their background, particularly in refer-

March 26 ence to their attachment ta th.eil! respective governments . in the Colonies where they came from. With.out . exception, every one- of the member~ o! the Convention guarded very . zealously the right of the. Colonies, as well as of . the States, in providing that the right . to d-ecide wh01 shall or shall not vat~ was t . o- be left in , the hands, of. tlie S.tate governments. • .

As I pointed · out, and as many other senators likewise · have pointed out .. except for the fact that each State was to retain the power to say who should or should not vote, our great Constitution may never · have been adopted. That was one: ot the · burning issues during the debates whi-ch took place; prior to the adoption of the- · Constitution.

Among those who took a very prominent part was Charles Pinckney, j who laid . before the House · a . draft of a FedenalGover.nment whlcla. he had prepared, to be agreed upon betw:een the free and independent States of : America.

:r continue- the quotation from "United States:-F'ormatien of t:he · Union”:

Article- lii o! :U:r ~ Pin£kzie.i's draft reads: "The. Members, o.t . the. House of Delegates shall be chosen every (blank) year QY, the people of the several States; a~cl the qualifications of the electors shall be the same as those of the electorS" in the several States for their legislatures.” · (Elliott .._ "C.ons.tit.utional Debates," vol. 1 (1st ed..L p. 145). ·

Pinckney also provided in article & of hiS. plan:

Each State shall prescribe; the ttln~ an'd · manner of holding: elections , by; the ·· people .for. the House. of Delegates. (.S'ee ill, "Records of. the Federal Convention,” ' p 59'Z, app ~ D). Alexander Hamilton'S suggested provision was · a general one · :

"ill. Tile Assembly · to · consist at persons ele'cted by. the people t01 serve f.or :t y,ear.s." ("U.S. Formation. of , the Union,” p •L 91Z9.)

When Mr. RandolPh's plan wasconsid'­ erect, 'What- was · · the feeling concerning -the · provision for election of Members ' Of the- :first branch of the National Legislature by the people of the several stateS'? The discussion is illuminating- in showing the angles considered, which . make clear the meaning- of the provisions trlttmately 1 adapted~

Mr - Sherman opposed the election b , y the people, insisting that it ought to De. by the State legislature. The people, he said, immediately should have as little to do as · may be about the Government . They want: in­ !omnatfon and are- constantly liable > to be misled.

Mr. Gerry: "The. evils we experience flow from the excess . ess . of democracy. The people do not went Virtue, but. ~e. the " dupes of pretended patriots. · "Tn Massachusetts it had' been :runy c . confirmed by experience that they · are daily misled into the most baneful measures and opinions b-y the false repEJFt& circulated l>y designing men .. alilct which. na one on the: spot · can :refute - One principal evil t arises from the :want of dl!le pno.v~J:L,far, 'tli9!l~ employed in the . administration of G.QVe:nnmen t , tt would s.eem to. be a. maxim. G:ll clen:l.oc.vae* to starve the public servant.s. . He. mentione.d the popular:..cramor in Massachusetts !or the reduction of salari-es- and the attack . made an that of the - Government- though secured by the spirit of t'll:e Constitution itself. 11., I:'l:ad, he said, be . en too republican : heretofore: He was still , however, · rep . republican, · b'll1t had! been taught by experience. the danger el:the level- ing spirit."

Madam President, I may say the word "republican" as there used was spelled with a small “r,” ," not with a capital "R." Mr. Mason argued strongly for an election of the larger branch by the people. It was to be the grand depository of the democratic principle of the Government. It was, so to speak, to be our House of Commons-lt ought to know and sympathize with every part of the community; and ought therefore to be taken not only from different parts of the whole Republic, but also from different districts of the larger members of it, which had in several instances, particularly in Virginia, different interests and views arising from difference of produce, of habits, and so forth. He admitted that we had been too democratic but was afraid we should inr.autiously run into the opposite extreme. We ought to attend to the rights of every class of people. He had often wondered at the indifference of the superior classes of society to this dictate of humanity and policy; considering that however affluent their circumstances, or elevated their situations might be, the course of a few years not only might, but certainly would, distribute their posterity throughout the lowest classes of society. Every selfish motive therefore, every family attachment, ought to recommend such a system of policy as would provide no less carefully for the rights and happiness of the lowest than of the highest orders of citizens.

Mr. Wilson contended strenuously for drawing the most numerous branch of the Legislature immediately from the people. . He was for raising the Federal pyramid to a considerable altitude, and for that reason wished to give it as broad a basis as possible. No government could long subsist without the confidence of the people. In a republican government this confidence was peculiarly essential. He also thought it wrong to increase the weight of the State legislatures by making them the electors of the National Legislature. All interference between the general and local government should be obviated as much as possible. On examination it would be found that the opposition of States to Federal measures had proceeded much more from the officers of the States, than from the people at large.

Mr. Madison considered the popular election of one branch of the National Legislature as essential to every plan of free Government. He observed that in some of the States one branch of the legislature was composed of men already removed from the people by an intervening body of electors. That if the first branch of the general legislature should be elected by the State legislatures, the second branch elected by the first--the executive by the second together with the first, and other appointments again made for subordinate purposes by the Executive, the people would be lost sight of altogether; and the necessary sympathy between them and their rulers and officers, too little felt. He was an advocate for the policy of refining the popular appointments by successive filtrations, but thought it might be pushed too far. He wished the expedient to be resorted to only in the appointment of the second branch of the Legislature, and in the executive and judiciary branches of the · Government. He thought too that the great fabric to be raised would be more stable and durable if it should rest on the solid foundation of the people themselves, than if it should stand merely on the pillars of the legislatures.

Mr. Gerry did not like the election by the people. The maxims taken from the British Constitution were often fallacious when applied to our situation which was extremely different. Experience he said had shown that the State legislatures drawn immediately from the people did not always possess their confidence. He had no objection however to an election by the people if it were so qualified that men of honor and character might not be unwilling to be joined in the appointments. ·

He seemed to think the people might nominate a certain number out of which the State legislatures should be bound to choose. Mr. Butler thought an election by the people an impracticable mode.

On the question for an election of the First Branch of the National Legislature by the people: Massachusetts, "aye;" Connecticut, division; New York, "aye;" New Jersey, "no;" Pennsylvania, "aye;" Delaware, division; Virginia, "aye;" North Carolina, "aye;" South Carolina, "no;" Georgia, "aye." ("Formation of the United States," p. 125.)

In the final report on Mr. Randolph's plan the Committee of the Whole merely said:

Resolved, That the Members of the First Branch of the National Legislature ought to be elected by the people of the several States for the term of 3 years. ("U.S. Formation of the Union" at p. 201.)

And nothing about voting qualifications, leaving this for specific provision in the States.

On Monday, August 6, the Committee of Detail reported finally the following provision:

Article IV, section 1: "The Members of the House of Representatives shall be chosen every second year by the people of the several States comprehended within the Union. The q,ualifications of the electors shall be the same, from time to time, as those of the electors in the several States of the most numerous branch of their own legislature." (See "U.S. Formation of the Union" at p. 472.)

It is particularly interesting to turn to the reports of the work of the Committee of Detail to see through what stages article IV. section 1-which is article I. section 2, of our Constitution today-progressed. The very regulations being proposed at this time in this body were suggested in 1787 at the Constitutional Convention and rejected at that time. On June 19 one draft was set forth. It provided:

The Members of the Second Branch of the Legislature of the United States ought to be chosen by the individual legislatures-to be of the age of 30 years at least; to hold their offices for the term of 6 years, onethird to go out biennially; to receive a compensation for the devotion of their time to the public service; to be ineligible to and incapable of holding any office under the authority of the United States (except those peculiarly belonging to the functions of the Second Branch) during the term for which they are elected, and for 1 year thereafter. (II Farrand, "Records of Federal Convention," pp. 129 and 130.)

The next step was as follows:

The qualification of electors shall be the same (throughout the States, viz) with that in the particular States unless the Legislature shall hereafter direct some uniform qualification to prevail through the States. (II Farrand, "Records of Federal Convention," p. 139.)

(Citizenship; manhood; sanity of mind; previous residence for 1 year, or possession of real property within the State for the whole of 1 year, or enrollment in the militia for the whole of a year.)

Next:

The Members of the House of Representatives shall be chosen biennially by the people of the United States in the following manner. Every freeman of the age of 21 years-having a freehold estate within the United States-who has-having-resided in the United States for the space of 1 whole year immediately preceding the day of election, and has a freehold estate in at least 50 acres of land. (II Farrand, supra, p. 151.) Then:

The Members of the House of Representatives shall be chosen every second year-in the manner following-by the people of the several States comprehended within this Union-the time and place and the manner of holding the elections and the rules. The qualifications of the electors shall be (appointed) prescribed by the legislatures of the several States; but their provisions-which they shall make concerning them shall be subject to the control of--concerning them may at any time be altered and superseded by the Legislature of the United States . (II Farrand, supra, p. 153.)

Mr. President, that was a proposal which was made at one time, and I am citing all these various proposals to show how the members of that Convention finally drifted to the provision of the Constitution which is now in the sacred document.

In other words, every form of proposal was presented to the Convention. The one I read last was one in which the National Legislature would have the right to prescribe qualifications, but it was turned down. It was considered by the Convention, and the Convention finally drafted that part of article I which is now in the Constitution.

In my mind any Senator who will take the time to read these excerpts, to read the history of the present article of the Constitution which gives to the States the right to prescribe qualifications of voters, will come unequivocally to the conclusion that this was to be done by the States and not by the Congress. Again, see the next report:

The Members of the House of Representatives shall be chosen every second year, by the people of the several States comprehended within this Union. The qualifications of the electors shall be prescribed by the legislatures of the several States but these provisions concerning them may, at any time, be altered and superseded by the legislature of the United States-the same from time to time as those of the electors, in the several States, of the most numerous branch of their own legislatures.

That proposition was submitted in debate, and I cite it to show the varying views of the members of the Convention and the manner and method proposed by each of them. I cite it merely to show that I do not believe anyone overlooked any argument. In other words, there was free debate on the entire subject, and everyone knew what it was all about. After long debate the present amendment to the Constitution was finally adopted by the Convention, and later ratified by three-fourths of the 13 States.

Every one of these suggestions was thought of long ago. They were discussed and wisely rejected by the framers of our Constitution, when they finally agreed on the form above set out; that The Members of the House of Representatives shall be chosen every second year by the people of the several States comprehended within this Union. The qualifications of the electors shall be the same, from time to time, as those of the electors in the several States, of the most numerous branch of their own legislatures. (See Farrand, p. 178, art. IV, sec. 1.)

This point, as all others in the muchdebated text, was discussed fully. It is interesting to note what such well-informed and brilliant men as Gouverneur Morris; James Wilson, who was a Justice of the United States; Oliver Ellsworth, who was later Chief Justice of the Supreme Court; Colonel Mason; Benj a­ min Franklin; John Rutledge, who was also a Chief Justice of the United States; and James Madison, thought of the proposed resolution.

I now quote from "Formation of the Union,' ~ pages 487, 488, 489, 490, 491 and Mr. Gouverneur Morris moved to strike out the last member of the section beginning with the words "qualifications of electors", in order that some other provision might be substituted which would restrain the right of suffrage to freeholders.

Mr. Fitzimmons seconded the motion.

Mr. Williamson was opposed to it.

Mr. WILSON. This part of the report was well considered by the committee, and he did not think it would be changed for the better. It was difficult to form any uniform rule of qualifications for all the States. Unnecessary innovations he thought too should be avoided. It would be very hard and disagreeable for the same persons at the same time, to vote for representatives in the State legislature and to be excluded from a vote for those in the National Legislature.

Mr. GOUVERNEUR MORRIS. Such a hardship would be neither great nor novel. The people are accustomed to it and not dissatisfied with it, in several of the States. In some the qualifications are different for the choice of the Governor and the representatives; in others for different houses of the legislature. Another objection against the clause as it stands is that it makes the qualifications of the National Legislature depend on the will of the States, which he thought not proper.

Mr. Ellsworth thought the qualifications of the electors stood on the most proper footing. The right of suffrage was a tender point, and strongly guarded by most of the State constitutions. The people will not readily subscribe to the national Constitution if it should subject them to be disfranchised. The States are the best judges of the circumstances and temper of their own people.

Colonel MAsoN. The force of habit is certainly not attended to by those gentlemen who wish for innovations on this point. Eight or nine States have extended the right of suffrage beyond the freeholders, what will the people there say, if they should be disfranchised? A power to alter the qualifications would be a dangerous power in the hands of the Legislature.

Mr. BUTLER. There is no right of which the people are more jealous than that of suffrage. Abridgments of it tend to the same revolution as in Holland where they have at length thrown all power into the hands of the senates, who fill up vacancies themselves, and form a rank aristocracy.

Mr. DICKINsoN. Had a very different idea of the tendency of vesting the right of suffrage in the freeholders of the country. He considered them as the best guardians of liberty; and the restriction of the right to them as a necessary defense against the dangerous influence of those multitudes with- out property and without unpopularity of the innovation it was in his opinion chimerical. The great mass of our citizens is composed at the time of freeholders, and will be pleased with it.

Mr. ELLSWORTH. How shall the freehold be defined? Ought not every man who pays a tax vote for the representative who 1s to levy and dispose of his money? Shall the wealthy merchants and manufacturers, who will bear the full share of the public burdens be not allowed a voice in the imposition of them-taxation and representation ought to go together.

Mr. GOUVERNEUR MORRIS. He had long learned not to be the dupe of words. The sound of aristocracy therefore had no effect upon him. It was the thing, not the name, to which he was opposed, and one of his principal objections to the Constitution as it is now before us, is that it threatens the country with an aristocracy. The aristocracy will grow out of the House of Representatives. Give the votes to people who have no property, and they will sell them to the rich who will be able to buy them. We should not confine our attention to the present moment. The time is not distant when this country will abound with mechanics and manufacturers who will receive their bread from their employers. Will such men be the secure and faithful guardians of liberty? Will they be the impregnable barrier against aristocracy? He was as little duped by the association of the words taxation and representation. The man who does not give his vote freely is not represented. It is the man who dictates the vote. Children do not vote. Why? Because they want prudence, because they have no will of their own. The ignorant and the dependent can be as little trusted with the public interest. He did not conceive the difficulty of defining freeholders to be insuperable. Still less that the restriction could be unpopular . Nine-tenths of the people are at present freeholders and these will certainly be pleased with it. As to merchants, etc., if they have wealth and value the right they can acquire it. If not they don't deserve it. Colonel MASON. We all feel too strongly the remains of ancient prejudices, and view things too much through a British medium. A freehold is the qualification in England, and hence it is imagined to be the only proper one. The true idea in his opinion was that every man having evidence of attachment to and permanent common interest with the society ought to share in all its rights and privileges. Was this qualification restrained to freeholders? Does no other kind of property but land evidence a common interest in the proprietor? Does nothing besides property mark a permanent attachment? Ought the merchant, the monied man, the parent of a number of children whose fortunes are to be pursued in his own country, to be viewed as suspicious characters, and unworthy to be trusted with the common rights of their fellow ciitzens?

Mr. MADISON. The right to suffrage is certainly one of the fundamental articles of republican government, and ought not to be left to be regulated by the legislature.

When he spoke of the legislature he meant Congress.

A gradual abridgement of this right has been the mode in which aristocracies have been built on the ruins of popular forms. Whether the constitutional qualification out to be a freehold, would with him depend much on the probable reception such a change would meet with in the States where the right was now exercised by every description of people. In several of the States a freehold was now the qualification. Viewing the subject in its merits alone, the freeholders of the country would be the safest depositories of republican liberty. In future times a great majority of the people will not only be without land, but any other sort of property. These will either combine under the influence of their common situation; in which case, the rights of property and the public liberty, will not be secure in their hands; or what is more probable, they will become the tools of opulence and ambition, in which case there will be equal danger on another side.

The example of England had been misconceived (by Colonel Mason) . A very small proportion of the representatives are there chosen by freeholders.

(At this point Mr. MUSKIE took the chair as Presiding Officer.)

. Mr. ELLENDER. Mr. President, I read further:

The greatest part are chosen by the cities and boroughs, in many of which the qualification of suffrage is as low as it is in anyone of the United States, and it is in the boroughs and cities rather than the counties that bribery most prevailed, and the influence of the Crown on election was not dangerously exerted.

Doctor FRANKLIN. It is of great consequence that we should not depress the virtue and public spirit of our common people, of which they displayed a great deal during the war, and which contributed principally to the favorable issue of it. He related the honorable refusal of the American seamen who were carried in great numbers into the British prisons during the war, to redeem themselves from misery or to seek their fortunes, by entering on board the ships of the enemies to their country, contrasting their patriotism with a contemporary instance in which the British seamen made prisoners by the Americans, readily entered on the ships of the latter on being promised a share of the prizes that might be made out of their own country.

This proceeded, he said, from the different manner in which the common people were treated in America and Great Britain. He did not think that the elected had any right in any case to narrow the privileges of the electors . He quoted as arbitrary the British statute setting forth the danger of tumultuous meetings, and under that pretext narrowing the right of suffrage to persons having freeholds of a certain value; observing that this statute was soon followed by another under the succeeding Parliament, subject the people who had no votes to peculiar labors and hardships. He was persuaded also that such a restriction as was proposed would give great uneasiness in the populous States. The sons of a substantial farmer, not being themselves freeholders, would not be pleased at being disfranchised, and there are a great many persons of that description.

Mr. MERCER. The Constitution is objectionable in many points, but in none more than the present. He objected to the footing on which the qualification was put, but particularly to the mode of election by the people.

The people cannot know and judge the characters of candidates. The worst possible choice will be made. He quoted the case of the Senate in Virginia as an example in point. The people in towns can unite their votes in favor of one favorite, and by that means always prevail over the people of the country, who being dispersed, will scatter their votes among a variety of candidates. · Mr . Rutledge thought the idea of restraining the right of suffrage to the freeholders a very unadvised one. It would create division among the people and make enemies of all those who should be excluded.

On the question for striking out as moved by Mr. Gouverneur Morris, from the word "qualifications" to the end of the article III: New Hampshire, "no"; Massachusetts, "no"; Connecticut "no"; Pennsylvania "no"; Delaware "aye"; Maryland divided; Virginia "no"; North Carolina "no"; South Carolina "no"; Georgia not present.

WEDNESDAY, AUGUST 8, IN CONVENTION

Article IV, section 1 being under consideration, Mr. Mercer expressed his dislike of the whole plan, and his opinion that it never could succeed.

Mr. GHoRuM. He had never seen any inconvenience from allowing such as were not freeholders to vote, though it had long been tried. The elections in Philadelphia, New York, and Boston where merchants and mechanics vote are at least as good as those made by freeholders only. The case in England was not accurately stated yesterday (by Mr. Madison). The cities and large towns are not the seat of Crown influence and corruption. These prevail in the boroughs, and not on account of the right which those who are not freeholders have to vote, but of the smallness of the number who vote. The people have been long accustomed to this right in various parts of America, and will never allow it to be abridged. We must consult their rooted prejudices if we expect their concurrence in our propositions.

Mr. Mercer did not object so much to an election by the people at large including such as were not freeholders, as to their being left to make their choice without any guidance. He hinted that candidates ought to be nominated by the State legislatures. On the question of agreeing to article IV, section 1, it passed nem. con. (Quoted from "U.S. Formation of the Union," p. 487.)

How timely this discussion is today. How true and to the point. I have no need to search for reasons or to manufacture a logician's arguments. I need only take the very words of men whom history has stamped with greatness and foresight to prove my position.

I repeat some of these well-considered words, in fact, I delight to dwell upon their wisdom.

The right of suffrage was a tender point, and strongly guarded by most of the State constitutions.

The States are the best judges of the circumstances and temper of their own people. A power to alter the qualifications would be a dangerous power in the hands of the legislature (referring to the national legislature).

Particularly note what Benjamin Franklin, noted for his practical, earthy, commonsense, said:

He did not think that the elected had any right in any case to narrow the privileges of the electors.

Turning now from the remarkable document of James Madison, recording the activities of the Constitutional Convention, to the notes of Rufus King, a delegate from Massachusetts to the Constitutional Convention, corroborating the Madison papers, here is King's record of the debate over the clause, "electors to be the same as those of the most numerous branch of the State legislature."

Morris proposed to strike out the clause and to leave 1t to the State legislatures to establish the qualification of the electors and elected, or to add a clause giving to the national legislature powers to alter the qualifications.

ELLSWORTH. If the legislature can alter the qualifications, they may disqualify threefourths, or a greater portion of the electors-­ this would go far to create aristrocracy. The clause is safe as it stands-the States have staked their liberties on the qualifications which we have proposed to confirm. DICKINSON. It iS urged that to confine the right of suffrage to the freeholders is a step toward the creation of an aristocracy. This cannot be true. We are all safe by trusting the owners of the soil; and it will not be unpopular to do so, for the freeholders are the more numerous class. Not from freeholders, but from those who are not freeholders, free governments have been endangered. Freeholds are by our laws of inheritance divided among the children of the deceased, and will be parceled out among all the worthy men of the State; the merchants and mechanics may become freeholders; and without being so, they are electors of the State legislatures, who appoint the Senators of the United States.

ELLSWORTH. Why confine the rights of suffrage to freeholders? The rule should be that he who pays and is governed, should be an elector. Virtue and talents are not confined to the freeholders, and we ought not to exclude them.

Morris. I disregard sounds and am not alarmed with the word "aristocracy," but I dread the thing and w111 oppose it, and for this reason I think that I shall oppose this Constitution because it will establish an aristocracy. There cannot be an aristocracy of freeholders if they all are electors. But there wm be, when a great and rich man can bring his poor dependents to vote in our elections-unless you establish a qualification of property, we shall have an aristocracy. Limit the right of suffrage to freeholders, and it will not be unpopular, because nine-tenths of the inhabitants are freeholders.

MAsoN. Everyone who is of full age and can give evidence of his common interest in the community should be an elector. By this rule, freeholders alone have not his common interest. The father of a family, who has no freehold, has this interest. When he is dead his children will remain. This is a natural interest or bond which binds men to their country-lands are but an artificial tie. The idea of counting freeholders as the true and only persons to whom the right of suffrage should be confided is an English prejudice. In England, a Twig and Turf are the electors.

MADISON. I am in favor of entrusting the right of suffrage to freeholders only. It is a mistake that we are governed by English attachments. The Knights of the Shires are chosen by freeholders, but the members of the cities and boroughs are elected by freemen without freeholds, and who have as small property as the electors of any other country. Where is the crown influence seen, where is corruption in the elections practiced-not in the countries, but in the cities and boroughs.

FRANKLIN. I am afraid that by depositing the right of suffrage in the freeholders exclusively we shall injure the lower class of freemen. This class possess hardy virtues and great integrity. The Revolutionary War is a glorious testimony in favor of plebeian virtue-our military and naval men are sensible of this truth. I myself know that our seamen who were prisoners in England refused all the allurements that were made use of, to draw them from their allegiance to their country-threatened with ignominious halters, they st111 refused.

This was not the case with the English seamen, who on being made prisoners entered into the American service and pointed out where other prisoners could be made-and this arose from a plain cause. The Americans were all free and equal to any of their fellow citizensthe English seamen were not so. In ancient times every freeman was an elector, but afterward England made a law which required that every elector should be a freeholder. This law related to the county elections-the consequence was that the residue of the inhabitants felt themselves disgraced, and in the next Parliament a law was made, authorizing the justice of the peace to fix the price of labor and to compel persons who were not freeholders to labor for those who were, at a stated rate, or to be put in prison as idle vagabonds. From this period the common people of England lost a great portion of attachment to their country.

WEDNESDAY, AUGUST B.-QUALIFICATIONS OF ELECTORS OF REPRESENTATIVES

GoRHAM. The qualifications (being such as the several States prescribe for electors of their most numerous branch of the legislature) stand well.

Gentlemen are in error who suppose the electors of cities may not be trusted. In England the members chosen in London, Bristol, and Liverpool are as independent as the members of the counties of England. The Crown has little or no influence in city election, but has great influence in boroughs, where the votes of freeholders are bought and sold. There is no risk in allowing the merchants and mechanics to be electors; they have been so time immemorial in this country and in England. We must not disregard the habits, usages and prejudices of the people. (Pp. 873, 874, 875, to top p. 876.) This debate, with the resulting provisions duly considered, was again recorded by Dr. James McHenry, delegate from Maryland--see "U.S. Formation of the Union," pages 934 and 935.

When all the views were aired, and the pros and cons of leaving the qualifications of voters for the National Legislature to be decided by the several States had been debated, the considered result was article I, section 2, of the Constitution of the United States, adopted September 17,1787.

The House of Representatives shall be composed of Members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.

Every word of that provision had been torn apart in open discussion, until there can be no possible doubt that it was the intention of the framers of the Constitution to leave to State control the field of voting qualifications.

In submitting the Constitution, Dr. Samuel Johnson, the Delegate from Connecticut, added to it the following letter: The friends of our country have long seen and desired that the power of making war, peace, and treaties, that of levying money and regulating commerce, and the correspondent executive and judicial authorities should be fully and effectually vested in the General Government of the Union; but the impropriety of delegating such extensive trust to one body of men is evident-thence results the necessity of a different organization.

It is obviously impracticable in the Federal Government of these States to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all. Individuals entering into society must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstance, as on the object to be obtained. It is a:t all times difficult to draw with precision the line between those rights which · must be surrendered and those which may be reserved; and on the present Occasion this diffi.culty was increased by a difference among the several States as to their situation, extent, habits, and particular interest.

In all our deliberations on this subject we kept steadily in our view that which appeared to us the greatest interest of every true American, the consolidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our national existence. This important consideration, seriously and deeply impressed on our minds, led each State in the Convention to be less rigid in points of inferior magnitude than might have been otherwise expected, and thus the Constitution, which we now present, is . the result of a spirit of amity and of that mutual deference and concession which the peculiarity of our political situation rendered indispensable. . That it will meet the full and entire approbation of every State is not perhaps to be expected, but each will doubtless consider that had her interest alone been consulted the consequences might have been particularly disagreeable and injurious to others; that it is liable to as few exceptions as could reasonably have been expected, we hope and believe; that it may promote the lasting welfare of that country so dear to us all, and secure her freedom and happiness, is our most ardent wish. (P. 713, "Formation of the Union.")

Thus we see that at a time when all rights of independent sovereignty could not be secured to each State, _ when the interest of each State alone could not be considered, when the greatest interest of every American was the consolidation of the Union, even then, when · the line was drawn between the rights which had to be surrendered and those which would be reserved, the right to determine the qualification of voters was reserved to each State.

A comment on this is found in McCulloch, "Suffrage and Its Problems," at page 30:

When the more perfect Union was formed under the Constitution of the United States, each State had the right to frame its own laws respecting suffrage. Hence article V was carried over into the new Constitution and became article I, section 2: The franchise for the election of the Members of the House of Representatives shall in every State be the same as for the "most numerous branch of the State legislature." The Constitution did not disturb the diversities of suffrage regulations existing in the several Commonwealths: It adopted them. For the Constitution to have been anything but silent on the regulations of suffrage would have been an innovation, and, as Viscount :Pryce observed, the members of the Constitutional Convention were too sound political scientists to ignore precedents. Only in three amendments (and only directly in the 15th and 19th) has the Constitution trenched on the Commonwealth right to regulate suffrage--and even then under extraordinary circumstances.

These amendments I shall discuss Lodge: later, ' when I have fully covered the formative period.

McCulloch, in further commenting, says:

While there has been a revolution in the conception of citizenship, there was no such change in the regulation of suffrage, the determining and regulating power continued to rest with the States. However, much as publicists and reformers may desire a uniform national suffrage law, it is unattainable; expediency and constitutionality are both adverse. In fact, such a plan was considered by the Constitutional Convention itself, but it received the vote of only one Commonwealth-Delaware. "The provision made by the Convention appears to be the best that lay within their option." The Fathers were satisfied for the States to continue to make their own suffrage tests, rather than to further prolong the Convention and so further endanger the rather slim chances of ratification by the several Commonwealths. The prospect in the Convention itself was anything but promising. Even Franklin moved to call in a parson that they might invoke the "assistance of Heaven."

The Constitution conferred the franchise on no one. Likewise citizenship does not bestow suffrage, either upon the natural born or the naturalized alien. The several States have the unqualified right to impose qualifications and regulate suffrage subject only to the limitations in : the amendments referred to above. In handing down the decision in the case of Corfield v. Coryell, Judge Washington, in enumerating the privileges and immunities that are usually associated with citizenship, said: "To which is to be added the electve franchise, as regulated and established by the laws or constitution of the State in which it is exercised." (McCulloch, "Suffrage and Its Problems," p. 32.)

Also note what Hart says in his "Formation of the Union," at pages 136-137: The real boldness of the Constitution is the novelty of the Federal system which it set up.

This was the best of the few elaborate written constitutions ever applied to a federation; and 'the details were so skillfully arranged that the instrument framed for 13 little agricultural communities works well today for 48 large and populous States. • • • The Convention knew how to select institutions that would stand together; it also knew how to reject what would have weakened the structure.

It was a long time before a compromise between the discordant elements could be reached. To declare the country . a centralized . nation would destroy the , traditions of a century and a half; to leave it an assemblage of States, each claiming independence and sovereignty, would throw away the results of the Revolution. · The Convention finally agreed that while the Union should be endowed with adequate powers, the States should retain all powers not specifically granted, and particularly the right to regulate their own internal affairs." ("Formation of the Union," p. 137.)

Mr. President, history records than in 1788 there appeared the first edition of the now famous Federalist, a collection of essays written in favor of the new Constitution as agreed upon by the Federal Convention o:h September 17, 1787. The authorship of the Federalist has been the subject of great research and argument. It is now conceded that a number of the papers were written by Alexander Hamilton, some by Madison, and a few by Jay. I quote from an introduction to the work by Henry Cabot The Federalist, furthermore, was the first authoritative interpretation of the Constitution, and was mainly written by the two principal authors of that instrument. It was the first exposition - of the Constitution and - the first step in the long process of development which has given ' life, meaning, and importance to the clauses agreed. upon at Philadelphia. ·· It has acquired all · the weight and sanction of a judicial decision, and has been constantly used as an authority in the settlement of constitutional questions. (The Federalist, intro. p. xiv, ~d par.) ·

In No. 45, by Madison, a paper concerned with the question of whether the whole of the mass of Federal power would endanger the State's authority, the author said:

The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State governments are .numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; . with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States wm extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. (The Federalist, p. 290.) Next, let us turn to the Federalist, No. 52, by Mr. Hamilton, and probably, it is said, also by Madison:

From the more general inquiries pursued in the four last papers, I pass on to a more particular examination of the several parts of the Government. I shall begin with the House of Representatives. _

The first view to be taken of this part of the Government relates to the qualifications of the electors and the elected.

Those of the former are · to be the same with those of the electors of the most nu- merous branch of the State legislatures. The definition of the right of suffrage is very j.ustly regarded as a fundamental article of republican government. _ lt was incumbent on the Convention, therefore, to define and establish this right in the Constitution. To have left it open for the occasional regulation · of the Congress · would have been improper for the reason just mentioned. To have submitted it to - the - legislative discretion of the States, would have been improper for the same reason; and for the additional reason that it would have rendered too dependent on the State governments that branch of the Federal Government which ought to be dependent on the people alone. 'ro have reduced the different qualifications in the different States to one uniform rule, would probably have been as dissatisfactory to some of the States as it would have been difficult to the Convention.

The qualifications of the elected, being less carefully and properly defined by the State constitutions, and being at the same time more susceptible of uniformity, have been very properly considered and regulated by the Convention. A Representative of the United States must be of the age of 25 years; must have been 7 years a citizen of the United States; must at the time of his election, be an inhabitant of the State he is to represent; and, during the time of his service, must, be in no office under the United States. Under these reasonable limitations, the door of this part of the Federal Government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith.

That is from the Federalist, No. 52, pages 327 and 328. ·

The provision in section 4, clause 1, of article I, i'S as follows:

The times, places, and · manner of holding elections for Senators and Representatives shall b~ . 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. "Manner" here refers to manner of holding elections, the mechanics thereof. Obviously there is no bearing upon voting qualifications. The Congress treated the person of the elector in article I, section 2, and the form or procedure of the election in article I, section 4. That this power was only to be exercised in case of national emergency or failure of the State to provide for an election is made clear by Hamilton in his discussion. I read from the Federalist No. 59:

They have submitted the regulation of elections for the Federal Government, in the first instance, to the local administrations; which, in ordinary cases, and when no improper views prevail, may be both more convenient and more satisfactory; but they have reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety.

Nothing can be more evident, than that an exclusive power of regulating elections f r the National Government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy. They could at any moment annihilate it, by neglecting to provide for the choice of per- - sons to administer its affairs.

That iS from the Federalist, page 369, line 32.

Even so, this procedual provision caused considerable objection and discussion in the State conventions which clarified its meaning by argument and emphasized its procedural application only, before they adopted the Constitu:­ tion. I will discuss this fully in my treatment of the adoption of the Constitution by the various States, which I shall begin at this point.

I read from "Formation of the Union," by Hart, pages 140 to 145:

The text of the Constitution was printed and rapidly distributed throughout the Union. It was still but a lifeless draft, and before it could become an instrument of Government the approving action of Congress, of the legislatures, and of State conventions was necessary. On September 28, 1787, the Congress unanimously resolved that the Constitution be transmitted to the State legislatures. The Federal Convention was determined that the consideration of its work should not depend, like the Articles of Confederation, upon the slow and unwilling humor of the legislatures; but that in each State a convention should be summoned solely to express the will of the State upon the acceptance of the Constitution. It had further avoided the rock upon which had been wrecked the amendments proposed by . Congress by providing that when nine State conventions should have ratified the Constitution, it was to take effect for those nine. On the same day that Congress in New York was passing its resolution, the Pennsylvania legislature in Philadelphia was fixing the day for the election of delegates; all the State legislatures followed, except in Rhode Island.

The next 6 months was a period of great anxiety and of national danger. The - proposed Constitution was violently attacked in every part of the Union: the President, it was urged, would be a despot, the House of Representatives a. corporate tyrant, the Sen- . ate an oligarchy. The large States protested that Delaware and Rhode Island woUld still neutralize the votes of Virginia. and Massachusetts in the Senate. . ate.

The Federal courts were said to be an innovation. It was known that there . had been great divisions in the Convention, and that several influential members had left, or at the last moment refused to sign. "The people of this Commonwealth," said Patrick Henry, "are exceedingly uneasy in being brought from that state of full security which they enjoyed, to the present delusive appearance of things."

As the State conventions assembled, the excitement grew more intense. Four States alone contained within a few thousand of half the population of the Union: they were Massachusetts, Virginia, New York, and North Carolina. In the convention of each of these States there was opposition strong and stubborn, one of them-North Carolina-adjourned without action; in the other three, ratification was obtained with extreme difficulty and by narrow majorities. The first State to come under the "new roof," as the Constitution was popularly called was Delaware. In rapid succession followed Pennsylvania, New Jersey, Georgia, and Connecticut.

In Massachusetts, the sixth State, there was a hard fight; the spirit of the Shays Rebellion was still alive; the opposition of Samuel Adams was only overcome by showing him that he was in the minority; John Hancock was put out of the power to interfere by making him the silent president of the convention. It was suggested that Massachusetts · atify on condition that a long list of amendments be adopted by the new government: The friends of the Constitution pointed out that this plan meant only to ratify a part of the Constitution and to reject the -rest; each succeeding State would insist on its own list of amendments, and the whole work must be done over. February 6, 1788, the enthusiastic people of Boston knew that the convention, by a vote of 187 to 167, had ratified the Constitution; the amendments being added not as a condition, but as a suggestion. Maryland, South Carolina, and New Hampshire brought the number up to nine.

Before the ninth ratification was known, the fight had been won also in Virginia. Among the champions of the Constitution were Madison, Edmund Randolph, and John Marshall.

James Monroe argued against the system of election which was destined twice to make him President. In spite of the determined opposition of Patrick Henry, and in spite of a proposition to ratify with amendments, the convention accepted. New York still held off. Her acquiescence - was geographically necessary; and Alexander Hamilton, by the power of his eloquence and his reason, made clear the advantage of the Constitution to a future commercial State and the 11th ratification was obtained.

During the session of the Convention in Philadelphia, Congress continued to sit in New York; and the Northwest Ordinance was passed at this time. Congress voted that the Constitution had been ratified September 13, 1788; and that elections should proceed for the officers of the new Government, which was to go into operation the first Wednesday in March 1789.

What, meantime, was the situation of the two States, Rhode Island and North Carolina, which had not ratified the Constitution, and which were, therefore, not entitled to take part in the elections?

They had in 1781 entered into a constitution which was to be amended only by unanimous consent; their consent was refused. Had they not a right to insist on the continuance of the old Congress? The new Constitution, they considered, was flatly unconstitutional; it had been ratified by a process unknown to law. The situation was felt to be delicate, and those · States were for the time being left to themselves. North Carolina came into the Union by a ratification of November 21, 1789. It was suggested that the trade . of States which did not recognize Congress should be cut off, and Rhode Island yielded. May 19, 1790, her ratification completed the Union of the old Thirteen States.

Keeping this summary in mind, let us consider in detail the proceedings and debates in the various States as they pertain to voting qualifications.

Delaware's ratification was the first one to be reported in general convention. Elliott's accounts of the constitutional debates contain nothing on Delaware's convention.

Pennsylvania was second to ratify the Constitution. In a speech by Mr. Wilson, on October 28, 1787, on behalf of the Constitution, he made the following observation:

The legislative department is subdivided into two branches-the House of Representatives and the Senate. Can there be a House of Representatives in the General Government, after the State governments are an- nihilated? Care is taken to express the character of the electors in such a manner, that even the popular branch of the general government, cannot exist unless the governments of the States continue in existence. How do I prove this? By the regulation that is made concerning the important subject of giving suffrage. Article I, section 2: "And the electors in each State shall have the qualifications for electors of the most numerous branch of the State legislature." Now, sir, in order to know who are qualified to be electors of the House of Represen tatives, we are to inquire who are qualified to be electors of the legislature of each State. If there be no legislature in the States, there can be no electors of them: if there be no such electors, there is n · o criterion to know who are qualified to elect Members of the House of Representatives. By this short, plain deduction, the existence of State legislatures is proved to be essential to the existence of the General Government (Elliott II, "Constitutional Debates," p. 438). Concerning section 4 of article 1, Mr. Wilson, who was one of the members of the committee of detail, said:

I will read it: - "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."

And is this a proof that it was intended to carry on this Government after the State governments should be dissolved and abrogated? This clause is not only a proper, but necessary one.

I have already shown what pains have been taken in the Convention to secure the preservation of the State governments. I hope, sir, that it was no crime to sow the seed of self-preservation in the Federal Government; without this clause, it would not possess self-preserving power. By this clause, the times, places, and manner of holding elections, shall be prescribed in each State, by the legislature thereof. I think it highly proper that the Federal Government should throw the exercise of this power into the hands of the State legislatures; but not that it should be placed there entirely without control.

If the Congress had it not in their power to make regulations, what might be the consequences? Some States might make no regulations at all on the · subject. And shall the existence of the House of Representatives, the immediate representation of the people in Congress, depend upon the will and pleasure of the State governments? Another thing may possibly happen; I don't say it will, _ but we were obliged to gu a rd even against possibilities, as well as probabilities. · -

A legislature may be Willing to make the necessary regulations; yet tlie minority of that · legislature may ; by absenting themselves, break up · the house, and · prevent the execution of the intention of the majority. I have s:upposed the case, that SOl!l~ · State governments may make , no regulations at all; it is possible, also, that they may make improper regulations. I have heard it surmised by the opponents of this Constitution, that the Congress may order the election for Pennsylvania to be held at Pittsburgh, and thence conclude that it would be improper for them to have the exercise of power. But suppose, on the other hand, that the assembly should order an election to be held tion. at Pittsburgh; ought not the General Government to have the power to alter such improper election of one of its own constituent parts? But there is an additional reason still that shows the necessity of this provisionary clause. The Members of the Senate are elected by the State legislatures. If those legislatures, possessed, uncontrolled, the power of prescribing the times, place, and manner, of electing Members of the House of Representatives, the members of one branch of the general legislature would be the tenants at will of the electors of the other branch; and the general government would lie prostrate at the mercy of the legislatures of the several States.

I w111 ask now, is the inference fairly drawn that the General Government was intended to swallow up the State governments? Or was it calculated to answer such end? Or do its framers deserve such censure from honorable gentlemen? We find, on examining this paragraph, that lt contains nothing more than the maxims of self-preservation, so abundantly secured by this Constitution to the individual States. Several other objections have been mentioned. I wm not, at this time, enter into a discussion · of them, though I may hereafter take notice of such as have any show of weight; but I thought it necessary to offer, at this time, the observations I have made, because I consider this as an important subject, and think the objection would be a strong one if 1 t was well founded. (Elliott II, supra, pp. 44()--441.) Again:

The power over elections, and of judging of elections, give absolute sovereignty. This power is given to every State legislature; yet I see no necessity that the power of absolute sovereignty should accompany it . 'My general position 'is that the absolute sovereignty never goes from the people. (Elliott II, supra, pp. 464-465.)

Mr. Wilson leaves no doubt as to the meaning of the Constitution as he reiterates:

Permit me to proceed to what I deem another excellency of this system: All author- 1 ity, of every kind, is derived by represen tation from the people, and the democratic principle is carried into every part of the Government, I had an opportunity, when I spoke first, of going fully into an elucidation of this subject. I mean not now to repeat what I then said.

I proceed to another quality that I think estimable in this .system: It secures, in the strongest manner, the right of suffrage. Montesquieu, book 2, chapter 2, speaking of laws relative to democracy, says:

When the body of the people is possessed of the supreme power, this is called a democracy. When the supreme · power is lodged in the hands of a part . of the people, it 1s then an aristocracy. ·

In a · democracy ' the people are in some respects . the sovereign, and in · others the subject. ·

There can be no exercise of sovereignty but by their suffrages, which are their own . will. Now, t,he sovereign's wpl is the sovereign himself. The laws, therefore, which establiSh the right of .suffrage, are fundamental tO this government. . And, indeed, it is as impor . portant to regulate, in a republic, hl. what manner, by whom, to whom, and concerning what, suffrages are to be given, as it is, in a monarchy, to know . who is the prince, and after what manner he ought to govern.

Mr. TOWER. Mr. President, will the Senator yield for a question?

Mr. ELLENDER. l yield for a ques­

Mr. TOWER. Is . it not true that at the time the Constitution was adopted, only approximately one-seventh of the adult people of this country could vote? Is it not true that in the time that has elapsed since then we have democratized our institutions, and have vastly broadened the suffrage to include more and more people?

Mr. ELLENDER. The Senator is correct. We have made it easier for people to vote. I agree with the Senator's first statement. Before he came into the Chamber, I was discussing the criticism by the framers of the Constitution when they compared the various things that voters had to do in order to qualify as voters. The vast majority of the people, of course, had no property. However, gradually, the Colonies, as well as the States thereafter, changed the procedure in order to permit more and more people to vote. What I . am now reading is taken from the debates that took place when the convention ratified the Constitution. There is no question in my mind that lf defining qualifications of voters had not been left to the States, we might not have had a Constitution today. I do not recall one of the Thirteen Original Colonies that did not desire to retain in its own constitution the right to define who shall and who shall not vote.

Mr. TOWER. Mr. President, will the Senator yield further for a question?

Mr. ELLENDER. I yield.

Mr. TOWER. Is it not true that over _ a period of many years it has been the people and the States themselves that have acted to broaden the suffrage and to extend it further and further? Is it not true, for example, that at one time the State of Louisiana had · a poll tax but does not now have a poll tax, the people of that State on their own initiative having removed the poll tax?

Mr. ELLENDER. The Senator is correct. I .am glad to say . that I was a member of the Louisiana State Legislature in 1932 when that action was taken. There · was no serious objection to it at that time. I was one of the coauthors of the bill tO remove the poll tax as a requirement to vote. That . same action has now been taken by all the States of - the Union with the . exception of five; It is my hope that in time those five States will also change that requirement. · Mr. TOWER. Does it not seem logical to the Senator that because of the trend : that . has been established, those five States will someday consider the poll tax a nuisance and will eventually do , away with the poll-tax?

- Mr. - ELLENDER. I do not think there is any doubt about - it.

Mr. · TOWER. I thank ~e Senator.

Mr. ELLENDER. To continue the quotation: ·

In _ this system, it is declared that the / electors m each State shall have the qualifications requisite for electors ' of the most numerous branch of the State legislature. This being made the criterion of the right of :suffrage, it is consequently secured, because the same Constitution guarantees to every State in the Union a republican form of Government. The right of suffrage is fundamental to the republics. (Elliott II, supr-a, p. 482.)

In response to further objections to article I, section 4, Mr1 Wilson said:

It is repeated, again and again, by the honorable gentleman, that "the power over elections, which is given to the General Government ln this system is a dangerous power." I must own I . feel, myself, surprised that an objection of this kind should be persisted in , after what has been said by the honorable colleague in reply. I think it has appeared, by a minute investigation of the subject, that it would have been not only unwise, but highly improper, in the late convention to have omitted this clause, or given less po'wer than it does over elections. Such powers sit are enjoyed by every State government i~ the United States. In some they are of a much greater magnitude; and why should this be the only one deprived of , them? I' Ought not these, as well as every other legislative body, to have the power of judging of the qualifications of its own members? "The times, places, and manner of holding elections for representatives may be altered by Congress." This power, sir, has been shown to be necessary, not only on some particular occasions, but even to the very existence ot the Federal Government. 1 have heard · some very im,probable suspicions indeed suggested with regard to the manner in which it will be exercised. Let us suppose it may be improperly exercised; is it not more likely so to be by the particular States than by the Government of the United States?-because the General Government will be more studious ot the good of the whole than a particular State will be; and therefore, when the power of regulating the time, place, or manner of holding elections is exercised by the Congress, it will be t~ correct the improper regulations of a particular State. (Elliott II, supra, p. 509.)

Mr. McKean enumerated the arguments against the Constitution . . No. 4 was that Congress could, by law, deprive the electors of a fair choice of their representatives by fixing improper times, places, and modes of election. He answered that argument as follows:

Every house of representatives ar-e of necessity to be the judges o! the elections returns, and qualifications of its own members. It Is therefore their province, as well as duty, to · see that they are fairly chosen, and are the legal members; for this purpose, lt ls proper f hey should have it in their power to provide that the times, places, and manner of election should be such as to insure free and fair elections. (Elliott II, supra, p. 535.)

Obviously this text had reference to procedure only, and insures against the failure of a State to provide for an election; it had no bearing upon the qualifiC?ations of the electors, or voters, which was · specifically left to _ the States in article I, section 2. ·

, However. being zealous in their guard of their rights, · a group of citizens of Pennsylvania. gathered at a meeting in Harrisburg suggested a number of amendments to be submitted to the new Constitution. Among them was the following provision:

That Congress shall not have power to make or alter regulations concerning the time, place, and manner of electing Senators and Representatives, except in case of neglect or refusal by the State to make regulations for the purpose; and then only for such time as such neglect or refusal shall continue. (Elliott II, supra, p. 545, sec. 4.)

Pennsylvania ratified the Constitution December 12, 1787; New Jersey, December 18, 1787.

Connecticut was fourth on the list to come under the roof. I have found no argument specifically on the point of State control of voting qualifications, so I shall only note, in passing, the general observation of Governor Huntingdon, of Connecticut:

The State governments, I think, will not be endangered by the powers vested by this Constitution in the General Government. While I have attended in Congress, · I have observed that the Members were quite as strenuous advocates for the rights of their respective States, as for those of the Union. I doubt not but .that this will continue to be the case; and hence I infer that the General Government will not have the disposition to encroach upon the States.

On January 9, 1788, Connecticut ratified the Constitution-Elliott II, supra, page 199.

The Massachusetts convention entered upon the consideration of the proposed Constitution on January 9, , 1788. Here we find an extensive discussion of section 4 of article I:

Mr. Pierce (from Partridgefield), after reading the fourth section, wished to know the opinion of gentlemen on it, as Congress appeared thereby to have a power to regulate . the time, place, and manner of holding elections. In respect to the manner. said . Mr. Pierce, suppose the legislature of this State should prescribe that the choice of the 1 Federal Representatives should be in the same manner as that of Governor-a majority of all the votes in the State being necessary to make it such-and Congress should deem it an improper manner, and should order that it be as practiced in several of the Southern States, where the highest number of votes makes a choice-have they not power by this section to do so? Again, as to the place, continues Mr. Pierce, may not Congress direct, that the election for Massachusetts shall be held in Boston? And if so, it is possible that, previous to the election, a number of the electors may meet, agree upon the eight delegates, and propose the same to a few towns in the vicinity, who, agreeing in sentiment, may meet on the day of election, and carry their list by a major vote. He did not, he said, say that this would be the case; but he wished to know 1f it was not a possible one.

Mr. Bishop rose, and observed that, by the . fourth section, Congress would be enabled to control the elections of Representatives. It has been said, says he, that this power was given in order that refractory States may be made to do their duty . . But if so, sir, why was it not so mentioned? If that was the intention, he asked why the clause did not run thus: "The times, places, and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the legislature thereof; but, if any State shall refuse or neglect so to do, Congress may," etc. This, he said, would admit of no prevarication. (Elliott II, supra, . He proceeded to observe, that if the States shall refuse to do their duty, then let the 23.) power be given tc? Congress to . oblige them . to do it.

But if they do their duty, Congress ought not to have the power to control elections. In an uncontrolled representation, says Mr. Bishop, lies the security of freedom; and he thought by these clauses, that that . freedom was sported with. In fact, says he, the moment we give Congress this power, the liberties of the yeomanry of this country are at an end. But he trusted they would never give it; and he felt a consolation from the reflection.

The fourth section, which provides that the State legislatures shall prescribe the time, place, and manner of holding elections, and that Congress may at any time make or alter them, except in those of Senators, though not fn regular order, under deliberation.

The Honorable Mr. Strong followed Mr. Bishop, and pointed out the necessity there is for the fourth section. The power, says he, to regulate the elections of our Federal representatives must be lodged somewhere. I know of but two . bodies wherein it can be lodged-the legislatures of the several States, and the general Congress. If the legislative bodies of the States, who must be supposed to know at what time, and in what place and manner, the elections can best be held, should so appoint them, it cannot be supposed that Congress, by the power granted by this section, will alter them; but if the legislature of a State should refuse to make such regulations, the consequence will be, that the Representatives will not be chosen, and the General Government will be dissolved. In such case, can gentle· men say that a power to remedy the evil is not necessary to be lodged somewhere?

Mr. J. C. Jones said, it was not right to argue the possibility of the abuse of any measure against its adoption. The power granted to Congress by the fourth . section, says he, is a necessarY' power; it will provide against negligence and dangerous designs. The Senators and Representatives of this State, Mr. President, are now chosen by a small number of electors; and it is likely we shall grow equally negligent of our Federal elections; or, sir, a State may refuse to send to Congress its Representatives, as Rhode Island has done. Thus we see its necessity.

To say that the power may be abused, is saying what will apply to all power. The Federal Representatives wm represent the people; they will be the people; and it is not probable they wm abuse themselves. Mr. Jones concluded with repeating that the arguments against this power could be urged against any power whatever.

Reverend Mr. WEST. I rise to express my astonishment at the arguments of some gentlemen against this section. They have only stated possible objections. I wish the gentlemen would show us that what they so much deprecate is probable. Is it probable that we shall choose men to ruin us? Are we to object to all governments?

And because power may be abused, shall we be reduced to anarchy and a state of nature? What hinders our State legislatures from abusing their powers? They may violate the Constitution; they may levy taxes oppressive and . intolerable, to the .amount of all our property. An argument which proves too much, it is said, proves nothing. Some say Congress may remove the place of elections to the State of South Carolina. This is , inconsistent with the words of the Constitution, which says, "that the elections, in each State, shall be prescribed by the legislature thereof," and so forth, · and that representation be apportioned according to numbers; it will frustrate the end of the Constitution, and is a reflection on the gentlemen who formed it. Can . we, sir, suppose them so wicked, so vile, as to recommend an tricle so dangerous? (Elliott II, supra, p.

The debate continued at length, while · men sought to construe and interpret, to assure themselves that the State control of its elections was not superseded. The Honorable Mr. King, in the course of his speech, said:

The idea of the honorable gentleman from Douglass, said he, transcends my understanding; for the power of control given by this section extends to the manner of election, not to qualifications of the electors. (Elliott II, supra, p. 51.)

The temper of the convention is well illustrated by the words of Mr. Adams, speaking to the Chair, John Hancock presiding, of the convention:

Another of your excellency's propositions is calculated to quiet the apprehensions of gentlemen lest Congress should exercise an unreasonable control over the State legisla- " tures, with regard 't9 the time, place, and manner of holdin,g elections, which, by the fourth section of the ;first article, are to be prescribed in each State by the legislature thereof, subject to the control of Congress. I have had my fears lest this control should infringe the freedom of elections, which ought ever to be held sacred . . Gentlemen who have objected to this controlling power in Congress have expressed their wishes that it had been restricted to such States as may neglect or refuse that power vested in them, and to be exercised by them if they please. Your excellency proposes, in substance, the same restriction, which I should think, can- , not but meet with their full approbation. (Elliott II, supra, pp. 131 and 132.)

Mr. Mason was still worried over the possibilities of section 4. Said he:

We now come, sir, to the fourth section. ' Let us see: the time, place, and manner of holding elections, shall be prescribed in each State by the legislature thereof. No objections to this: but, sir, after the flash of lightning comes the peal of thunder. "But Congress may at any time alter them," and so forth. Here it is, Mr. President, this is the article which is to make Congress omnipotent. Gentlemen say, this " is the greatest beauty of the Constitution; this is the greatest security for the people; this is the all in all. Such language have I heard in this house; but, sir, I say, by this power Congress may, if they plea.Se, order the election of Federal Representatives for Massachusetts to be at Great Barrington or Machias; and at such a time, too, as shall put it in the power of a few artful and designing men to get themselves elected at their pleasure. (Elliott II, supra, pp. 135 and 136.)