Volume III Part 142 (1/2)
Section 1, article 2 of the const.i.tution provides that electors shall be appointed in such manner as the legislature of each State may direct. When the legislature of a State, in obedience to that provision, has, by law, directed the manner of appointment of the electors, that law has its authorities solely from the Const.i.tution of the United States. It is a law pa.s.sed in pursuance of the const.i.tution.
Hon. James A. Garfield, who was a member of the Electoral Commission, in discussing before that body the source of the power to appoint electors, said:
The const.i.tution prescribes that States only shall choose electors. * * * To speak more accurately, I should say that the power is placed in the legislatures of the States; for if the const.i.tution of any State were silent upon the subject, its legislature is none the less armed with plenary authority conferred upon it directly by the national const.i.tution.--[Electoral Commission, p. 242.
That this section of the national const.i.tution has always been understood to lodge an absolute discretion in the legislature, is proved by the practice in the different States. Chief Justice Story, in his ”Commentaries on the Const.i.tution of the United States,” in speaking of this section of the const.i.tution and the practice under it, says:
Under this authority, the appointment of electors has been variously provided for by the State legislatures. In some States the legislatures have directly chosen the electors by themselves; in others they have been chosen by the people by a general ticket throughout the whole State, and in others by the people in electoral districts fixed by the legislature, a certain number of electors being apportioned to each district. No question has ever arisen as to the const.i.tutionality of either mode, except that of a direct choice by the legislature. But this, though often doubted by able and ingenious minds, has been firmly established in practice ever since the adoption of the const.i.tution, and does not now seem to admit of controversy, even if a suitable tribunal existed to adjudicate upon it.--[2 Story on Const.i.tution, section 1,472.
Judge Strong, one of the justices of the Supreme Court of the United States, and a member of the electoral commission, in discussing the subject of this section, says:
I doubt whether they [the framers of the national const.i.tution]
had in mind at all [in adopting this section] the idea of a popular election as a mode of appointing State electors. They used the word _appoint_, doubtless thinking that the legislatures of the States would themselves select the electors, or empower the governor or some other State officer to select them. The word appoint is not the most appropriate word for describing the result of a popular election. Such a mode of appointment, I submit is allowable, but there is little reason to think it was contemplated. * * * It was not until years afterward that the electors were chosen by vote.--[Electoral Commission, p. 252.
Senator Frelinghuysen, also a member of the Electoral Commission, thus speaks of the practice in the several States:
Under this power [the power given by the section of the national const.i.tution, which we are now considering] the legislature might direct that the electors should be appointed by the legislature, by the executive, by the judiciary, or by the people. In the earliest days of the republic, electors were appointed by the legislatures. In Pennsylvania they were appointed by the judiciary. Now, in all the States except Colorado, they are appointed by the people.--[Electoral Commission, p. 204.
If then it be true that the power to determine how the presidential electors shall be appointed is derived from the national const.i.tution, and that power is a discretionary one, to be exercised in such manner as the legislature may direct, how can it be said that a State const.i.tution can limit or control the legislative discretion? If the State can limit that discretion in one respect it can limit it in another, and in another, and in another, until it may shut up the legislature to but a single mode of appointment, which is to take away, and absolutely destroy all its discretion, and this is nullification, pure and simple. One of the questions before the electoral commission in the case of South Carolina, was whether the electoral vote of that State should not be rejected because the legislature, in providing for the appointment of the electors, had failed to obey a requirement of the State const.i.tution in regard to a registry law. This raised, in principle, the very question we are now considering, and on that question Senator O. P. Morton, who was a member of the commission, and who was an able lawyer as well as a great statesman, thus expressed himself:
They [the presidential electors] are to be appointed in the manner prescribed by the legislature of the State, and not by the const.i.tution of the State. The manner of the appointment of electors has been placed by the Const.i.tution of the United States in the legislature of each State, and cannot be taken from that body by the provisions of a State const.i.tution. * * * The power to appoint electors by a State, is conferred by the Const.i.tution of the United States, and does not spring from a State const.i.tution, and cannot be impaired or controlled by a State const.i.tution.--[Electoral Commission, p. 200.
The distinguished lawyer and statesman [Hon. William Lawrence] who made the principle argument before the commission in favor of admitting the vote of the State, took the same ground (Electoral Commission, p. 186).
The opinion of Justice Story, expressed in the Ma.s.sachusetts const.i.tutional convention of 1820, on a very similar question, and one involving the same principle, quoted by Mr. Lawrence in his argument, is very high authority, and I reproduce it here. He (Justice Story) said:
The question then was whether we have a right to insert in our const.i.tution a provision which controls or destroys a discretion which may be, nay _must_ be, exercised by the legislature in _virtue_ of _powers confided_ to it by the Const.i.tution of the United States. The fourth section of the first article of the Const.i.tution of the United States declares that the times, places and manner of holding elections for senators and representatives shall be prescribed by the legislature thereof. Here an express provision was made for the manner of choosing representatives by the State legislatures. They have an _unlimited_ discretion on the subject. They may provide for an election in districts sending more than one, or by general ticket for the whole State.
Here is a general discretion, a power of choice. What is the proposition on the table? It is to limit the discretion, to leave no choice to the legislature, to compel representatives to be chosen in districts; in other words to compel them to be chosen in a specific manner, excluding all others. Were not this plainly a violation of the const.i.tution? Does it not affect to control the legislature in the exercise of its powers? * * * It a.s.sumes a control over the legislature, which the Const.i.tution of the United States does not justify. It is bound to exercise its authority according to its _own view_ of _public policy_ and _principle_; and yet this proposition compels it to surrender all discretion. In my humble judgment * * * it is a direct and palpable infringement of the const.i.tutional provisions to which I have referred.--[Electoral Commission, p. 186.
The conclusion seems irresistible that a State const.i.tution cannot determine for the legislature who shall, or shall not, partic.i.p.ate in the choice of presidential electors, and that in so far as our State const.i.tution may attempt to do so, it is an infringement of the national const.i.tution. The discretion of the legislature, by virtue of the supreme law of the land, being (except in so far as it is controlled by the national const.i.tution itself) thus absolutely unlimited, it may, without doubt, as I think, authorize all citizens without regard to s.e.x, to partic.i.p.ate in the choice of presidential electors. But it has been suggested to me that possibly by the State legislature, as used in the section of the national const.i.tution which we have been considering, was meant the whole people of the State in whom the legislative power originally resides and not the organized legislative body which they may create. We answer first that the language of the section will not admit of this construction. It clearly recognizes a distinction between the State or the people of the State, and its legislature.
The language is not ”each State shall appoint in such manner as _it_ may direct,” etc., but it is, ”each State shall appoint in such manner as the _legislature_ thereof may direct,” etc.
Again, it is a familiar canon of construction that in determining the meaning of a statute, recourse may be had to the history of the times in which it was enacted. When the Const.i.tution of the United States was framed, all of the States had organized legislatures, or representative bodies who wielded the legislative power, and without doing violence to language, we must suppose that it was to _them_ the const.i.tution referred. Again, the State legislatures are referred to not less than ten times in the national const.i.tution, and in each instance the reference is such as to make it clear that the organized representative bodies are intended, and in article 5 they are, in express terms, distinguished from conventions of the States. Indeed, the fundamental idea of the American government is that of a representative republic as opposed to a pure democracy, and it may well be doubted whether a State government, without a representative legislative body of some kind, would, in the American sense, be republican in form.
Finally, it is apparent from the debates in the const.i.tutional convention which framed the const.i.tution, and from the whole plan devised for the election of president and vice-president, that it was not intended by the framers of the const.i.tution to commit directly to the whole people of a State the authority to determine how the presidential electors should be chosen. Nothing seems to have given the convention more trouble than the mode of selecting a president. Many plans were proposed. Chief among these were: election by congress; election by the executives of the States; election by the people; election by the State legislatures; and election by electors. These were presented in many forms. The convention decided not less than three times, and once by a unanimous vote, in favor of election by the national congress, and as often reconsidered it (2 Madison Papers, pp. 770, 1,124, 1,190).
The proposition that the president should be elected directly by the people, instead of by the national congress, received but one vote, while the proposition that he should be appointed by the State legislatures received two votes (2 Madison Papers, p. 1,124).
The most cursory examination of the debates will, I think, convince any mind that it was to the _organized_ legislature of the State, and not to the people of a State, that the framers of the const.i.tution intended to commit the power of determining how the presidential electors should be chosen. It seems, both from the debates and the plan adopted, to have been their studied effort to prevent the people from acting in the choice of their chief magistrate otherwise than through their representatives, and in no single step of the process are the people directly required or authorized by the national const.i.tution to act, but in every instance the duty and the authority are devolved upon their representatives. For these reasons I think it clear that it was intended to invest the organized State legislatures with the power of determining how the presidential electors should be chosen, and that the discretion thus lodged in the legislature cannot be limited or controlled by a State const.i.tution.
W. DE WITT WALLACE.
[C.]
In 1868, the Indiana (Friends) Yearly Meeting appointed Mrs. Sarah J. Smith of Indianapolis, and Mrs. Rhoda M. Coffin of Richmond, to visit the prisons of the State, with a view to ascertain the spirit of the management of these inst.i.tutions, and the moral condition of their inmates. In obedience to this appointment the two ladies visited both of the State prisons of Indiana, and made a particularly thorough examination of the condition of the Southern prison (at Jeffersonville) where all our women convicts were kept.
Here they found the vilest immoralities being practiced; they discovered that the rumors which had induced their appointment were far surpa.s.sed by the revolting facts.
They visited Gov. Conrad Baker and urged him to recommend the General a.s.sembly to make an appropriation for a separate prison for women. With the full sympathy of Governor Baker, who was not only a most honorable gentleman, but a sincere believer in the equal political rights of women, Mrs. Smith and Mrs. Coffin appeared before the legislature of 1869, and by an unvarnished account of what they had witnessed and learned in the Southern prison, they aroused the legislators to immediate action, and an act to establish a ”Reformatory Inst.i.tution for Women and Girls” was pa.s.sed at that session (viz., that of 1869). By statute the new inst.i.tution was located at Indianapolis. It was opened in 1873, the first separate prison for women in this country. Mrs. Sarah J.
Smith was made its first superintendent, and she retained that office, discharging all its duties with great ability, until 1883, when upon her resignation she was succeeded by Mrs. Elmina S.