The Committee of Elections, to whom was referred the petition of Augustus C. Baldwin, claiming a seat in the 39th Congress as representative from the fifth congressional district of Michigan, report as follows:

There is no question of fact, and only one of law, involved in this contest. The constitution of the State of Michigan, article VII, section 1, reads as follows:

"SEC. 1. In all elections, every white male citizen, every white male inhabitant residing in the State on the twenty-fourth day of June, one thousand eight hundred and thirty-five; every white male inhabitant residing in the State on the first day of January, one thousand eight hundred and fifty, who has declared his intention to become a citizen of the United States, pursuant to the laws thereof, six months preceding an election, or who has resided in this State two years and six months, and declared his intention as aforesaid, and every civilized male inhabitant of Indian descent, a native of the United States, and not a member of any tribe, shall be an elector and entitled to vote; but no citizen or inhabitant shall be an elector, or entitled to vote at any election, unless he shall be above the age of twenty-one years, and has resided in the State three months, and in the township or ward in which he offers to vote ten days next preceding such election."

The first and second sections of an act of the legislature of that State, passed February 5, 1864, are as follows:

"SEC. 1. The people of the State of Michigan enact, That every white male citizen or inhabitant of this State, of the age of twenty-one years, possessing the qualifications named in article seven, section one, of the constitution of the State of Michigan, in the military service of the United States or of this State, in the Michigan regiments, companies or batteries, shall be entitled to vote at all of the elections authorized by law, as provided in this act, and every such citizen or inhabitant shall thus be entitled, in the manner herein prescribed, whether at the time of voting he shall be within the limits of this State or not.

"SEC. 2. Every soldier belonging to Michigan regiments and batteries or companies in the military service of this State or of the United States, or volunteer soldiers, residents of Michigan, belonging to regiments, batteries or companies, present on the day of election from other States, including officers and their staffs, surgeons and assistant surgeons, chaplains and commissioners appointed under this act, shall, if possessed of the qualifications set forth in section one of this act, be entitled to the benefits of the provisions thereof."

Under this act of the legislature, a large number of votes were cast by soldiers outside the limits of the State. If these votes can be lawfully counted, Mr. Trowbridge has a majority of the whole, and is entitled to the seat; if not, Mr. Baldwin, having a majority of the home vote, is entitled to it. It will be observed that the elector is prohibited by the constitution of the State (taking the interpretation of its supreme court as correct) from voting outside of the township or ward in which he resides, but by the act of the legislature is allowed, when absent in the military service of the country, to vote even outside the State. Here is an unmistakable conflict of authority. The constitution plainly prohibits what the legislature as plainly permits. The one authorizes the election to be held only in the township or ward—the other at military headquarters. The power to act at all in the premises, so far as concerns representatives in Congress, is derived from article one, section four, of the Constitution of the United States, which is as follows:

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

Here the power is conferred upon the legislature. But what is meant by "the legislature?" Does it mean the legislative power of the State, which would include a convention authorized to prescribe fundamental law; or does it mean the legislature eo nomine, as known in the political history of the country? The committee have adopted the latter construction. At the time the Constitution of the United States was written, there existed in the thirteen States for which it was designed legislatures, created or restrained by some fundamental law, in the shape of charters or constitutions, very much as they exist in the several States now. With this fact before them, it is not probable that the framers of the Constitution, if they intended to confer this power upon State organic conventions, would have chosen some word less liable to misconstruction. It is also apparent, from the manner in which this word is used in other parts of the instrument, that its framers recognized a wide difference between a continuing legislature and a convention temporarily clothed with power to prescribe fundamental law. Article V provides that Congress "shall call a convention for proposing amendments * * * on application of the legislatures of two-thirds of the several States." Also that amendments shall be valid when "ratified by the legislatures of three-fourths of the several States, or by conventions of three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress." Article VII provides that "the ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same." The convention closed their labors with the following resolution:

"Resolved, That the preceding constitution be laid before the United States in Congress assembled; and that it is the opinion of this convention that it should afterwards be submitted to a convention of delegates chosen in each State by the people thereof, under the recommendation of its legislature."

In these extracts the words "legislature" and "convention" are both used to denote different legislative bodies, and in such contrast as to clearly indicate that the former is employed in its historic rather than in its normal sense. In article I, section 2, the words of the constitution are "the electors in each State shall have the qualifications requisite for the most numerous branch of the State legislature." Did anybody ever hear of a constitutional convention, in the history of this country, composed of two houses? Article I, section 3, provides that "the senate shall be composed of two senators from each State, chosen by the legislature thereof." In article II section 1, it is said "each State shall appoint, in such manner as the legislature thereof may direct, a number of electors," &c. In section 8 of article I, "the consent of the legislature of a State" is required before the United States can purchase places for forts, &c. Again, in article IV, section 4, is said that, "on application of the legislature, or the executive, (when the legislature cannot be convened,) Congress shall protect each State against domestic violence." It will hardly be clained [sic] that a constitutional convention could perform the duties thus conferred upon the legislature; much less that it could forbid the legislature eo nomine from discharging them after its own dissolution.

But the legislation of Michigan may be sustained as against the constitution of that State, even if the word legislature is to be taken in its most enlarged sense. Whatever power the convention of that State possessed to prescribe the places of holding elections for representatives in Congress was derived, not like its other powers, from the people, but from the Constitution of the United States, and that, too, because it was a constructive legislature. The power conferred is a continuing power. It is not used up when once exercised, but survives the dissolution of the convention. The words of the Constitution are as potent then as before, and if there is any legislative body in the State that can be properly called a legislature, they appertain to it as strongly as to any prior legislative body. They do not authorize any convention or legislature to tie the hands of its successors. The people authorize a convention to do that where they (the people) have power; but certainly the people of Michigan had no power to enlarge or restrict the language of the constitution of the United States. This view of the case entirely harmonizes what was at first supposed to be a partially adverse precedent in the case of Shiel vs. Thayer, from the State of Oregon.

It was said in argument that the legislature might abuse this power; but that does not disprove its existence. It would be equally liable to that objection if lodged in any other department of government. It is not claimed, however, that in this instance the power was abused. Mr. Baldwin conceded that to allow a vote to be cast by a soldier detained in the service of his country was a very proper use of the power, provided the legislature possessed it. If, however, it should in the future be abused, Congress has entire authority to correct it.

But, again, the contestant claims that a State has the power to prescribe the qualifications of electors, and may exercise it by an organic convention, to the exclusion of the legislature. The committee are not disposed to controvert this position. That power has been conceded to the States, and exercised by them in the manner suggested, from the beginning of the government to the present time. But it does not follow, as the contestant supposes, that the place of holding the election for a representative in Congress may be prescribed as one of the electoral qualifications. Control over the place of voting is lodged in the legislature by the unmistakable language of the Constitution, and cannot, however disguised by names or circumlocution of words, be transferred to another department of government. Now, the constitution of Michigan either fixes the place of holding the election or it does not. If it does not, there is no conflict between the law and the constitution, and the argument is at an end. If it does, then, as before shown, the convention which adopted it entirely exceeded its power, unless such convention is to be considered a legislature by construction; and in that event its power, as has also been shown, was just as ample as that of any subsequent legislature, and no more. The power to prescribe the place, whether called a qualification, limitation, or condition, is still in what the constitution calls "the legislature," and there it must remain. It cannot be divested by giving it another name, however apt it may be.

The committee, then, submit the following resolution, and recommend its adoption:

Resolved, That Rowland E. Trowbridge is entitled to a seat in this house as a representative in the thirty-ninth Congress from the fifth congressional district in Michigan.

• Report on the Contested Election of Baldwin vs. Trowbridge (introduced on 1866-02-04 00:00:00 - CREATE - e663578) [This document] [view current proposal at this moment]
  • None (introduced on 1866-02-04 00:00:00 - REPORT_PROPOSAL - e663582) [view current proposal at this moment]