THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 RIVERSIDE 
 
 GIFT OF 
 
 JOHN PHILLIPS 
 DOROTHY G. PHILLIPS
 
 HINDS' PRECEDENTS 
 
 OF THE 
 
 HOUSE OF REPRESENTATIVES 
 
 OF THE 
 
 UNITED STATES 
 
 INCLUDING REFERENCES TO PROVISIONS 
 
 OF THE CONSTITUTION, THE LAWS, AND DECISIONS 
 
 OF THE UNITED STATES SENATE 
 
 i^ By 
 ASHER C. HINDS, LL. D. 
 
 Clerk at the Speakei's Table 
 
 VOLUME I 
 
 PUBUSHED BY AUTHORITY OF THE ACT OF CONGRESS 
 APPROVED MARCH 4. 1907 
 
 WASHINGTON 
 
 GOVERNMENT PRINTING OFFICE 
 
 1907
 
 H5
 
 INTRODUCTION. 
 
 The value of precedents in guiding the action of a legislative body has been 
 demonstrated by the experience of the House of Representatives for too many 
 years to justify any arguments in their favor now. "We have no other means of 
 building up parliamentary law, either in the Mother Country or here," said a great 
 lawyer, who was also an experienced legislator,' "except by instances as they arise 
 and treatment of them and disposition of the law and of the good reasons that 
 should govern these considerations." And a great legislator, who had served a 
 lifetime in the House of Representatives and the Senate ' concluded that "the great 
 body of the rules of all parliamentary bodies are unwritten law; they spring up 
 by precedent and custom; these precedents and customs are this day the chief 
 law of both Houses of Congress." 
 
 In the House of Representatives, as in other legislative bodies, the memories 
 of the older Members, as they might be corroborated by the journals, have been 
 the favorite and most readily accessible repository of the precedents; but as the 
 generations of statesmen come and go much is lost, and many useful precedents 
 cease to be available except as fi'om time to time the voluminous pages of the 
 journals may be searched hastily under the stress of some pressing question. 
 
 It is manifestly desirable, on a floor where high interests and great passions 
 strive daily, that the rules of action should be known definitely, not only by the 
 older members, but by all. Not only will the Speaker be enabled to make his 
 decisions with more confidence and less fear that he may be swayed by the interests 
 of the moment, but the Members, understanding the rules of his action, will sustain 
 with commendation what they might have criticised with asperity. Thus, good 
 order and dignity will be preserved to the bodj'. 
 
 ilr. Jefferson, quoting with approval the famous English Speaker Onslow, has 
 dwelt on the necessity of an adherence to the rules of procedure in order that the 
 minority, as the weaker party, may be protected from the abuses "which the 
 wantonness of power is but too apt often to suggest to large and successful 
 majorities." The protection of the minority in its proper functions of examining, 
 amending, and sometimes persuading the House to reject the propositions of the 
 majority is an essential requirement of any sound system of procedure. Edmund 
 Burke, when commiserated on his toilsome and apparently fruitless years as an 
 opposition statesman in the House of Commons, explained that he found his reward 
 in the fact that the minority which he led had caused many wise modifications of 
 ministerial measures, and had also caused others to be abandoned in view of 
 
 ' William M. Evarts, in the United States Senate. First session Forty-ninth Congress, Record, 
 p. 7353. 
 
 ^John Sherman, in the Senate. First session Forty-fourth Congress, Reford, p. 433. 
 
 Ill
 
 IV INTRODUCTION. 
 
 the honest and int.elligent criticism which they would meet. Wlien Mr. Jefferson 
 wrote no one had seriously conceived that a minority might go further than this 
 lofty and useful duty. But as the House of Representatives grew in size the rules 
 and practice put into the hands of the minority the power of obstruction. This 
 power grew to such proportions during the portentous legislative struggles preced- 
 ing and following the civil war that at last it amounted to the absolute power 
 to stop legislation entirely. Not only was the power justified because it was estab- 
 lished, but it attained a certain degree of respectabilitj" as it enwrapped itself in 
 the theory that on great questions the wisdom of the few should be permitted 
 to thwart the rashness of the many. The abundant checks and balances devised bj 
 the framers of the Constitution to save the Government from popular passions 
 were considered by a large school of statesmen inadequate without the added 
 check of obstruction. Mr. Speaker Reed, in 1890, destroyed this system by the 
 enunciation of the principle that the processes of a legislative body might not be 
 used to destroy its powers; and since that day the minority has been remitted to 
 its historic fimctions. The rulings then made constitute the only important reversal 
 in the lines of precedent which as a whole have built up for the minority a safe- 
 guard for its legitimate duties, and for the majority a flexible and effective instru- 
 mentality for its necessary achievements. 
 
 In another respect the value of precedent to the House of Representatives 
 should not be overlooked. The framers of the Constitution experienced little 
 uncertamty as to the functions and powers of the House. In the Colonial 
 Assemblies there was existing a political institution, indigenous to America, and 
 proven by the long conflict arising from the attempts of the English Kings to 
 establish arbitrary- power. The people of America had fought the first battle 
 of liberty in the Colonial Assemblies. Nowhere else, among the great nations of 
 the earth, did the people possess such a perfect means of expressing their will. 
 It was natinal, therefore, that the framers of the Constitution should at once 
 have conceived of a National House of Representatives, framed on the model of 
 the Colonial Houses, and should have guaranteed to it the powers and privileges 
 necessary for its preservation as the organ of the will of the whole people. It is 
 a duty and a national necessity that those jiowers and privileges be preserved in 
 their pristine vigor; and there is no sm-er way to this end than perfect information 
 on the part of every Member of the House as to what they are. One of the chief 
 ends proposed by this work has been the collection and classification of the prec- 
 edents relating to this subject in such a way that they may always be clearly 
 before the membership of the House. If the prerogatives of the House are well 
 unilerstood, other branches of the Government are less likely to encroach on them; 
 and if there be encroachment, it is more likely to be met with promptness, 
 intelligence, and firmness. 
 
 It has been the habit of a certain school of statesmen to picture a fancied decay of 
 the importance of the House as a branch of the Government. A critical examination 
 of the present and past condition of its powers and privileges affords no foundation 
 for this theory, which derives dignity only from the fact that it has been advanced 
 from time to time for nearly a century. Perhaps it is to be explained by a confusion 
 of ideas, resulting from the undoubted fact that with the great increase of mem-
 
 INTRODUCTION. V 
 
 bership the individual Representative has lost much of fi-eedom and opportunity. 
 This is a condition of all large bodies, well understood as long ago as when Thack- 
 eray, in writing the pages of Pendennis, caused his chief character to be informed 
 that as a young member of Parliament his only duty would be to do as he might 
 be directed by the leaders. From the ruling by which Mr. Speaker Clay repressed 
 the superabounding individuality of John Randolph to the latest rulings by Mr. 
 Speaker Cannon, the pages of these volumes show a constant subordination of the 
 individual to the necessities of the whole House as the voice of the national will. 
 
 A hall of business, not always orderly and usually noisy, appeals to the imagina- 
 tion less favorably than a quiet and dignified school of debate. But if beneath the 
 apparent confusion there can exist a sj'stem of procedure, just to all the members 
 and at the same time conducive to an efficient performance of the duties of the 
 body, the great objects of the House will be attained, and its place in the confidence 
 and respect of the people will be unassailable. If the precedents which are gath- 
 ered in these volimaes can contribute to the perfection and maintenance of such a 
 S3-stem, and cause it to be understood and appreciated within the House and without, 
 the labor of their preparation will not have been in vain. 
 
 It can not, of course, be claimed that the system of the House's procedure is 
 perfect, or that changes will not result in the future as in the past from the multi- 
 plied experiences of successive Congresses. And it is of the highest importance 
 that those changes proceed on a basis of sound principles, having in view the main- 
 tenance of efhciency as a legislative body, integrity in methods of determination, 
 freedom and fairness in deliberation, and as great privileges to the individual as 
 are consistent with the rights of all. This happy development will be promoted 
 if from these precedents it shall be possible to understand readily and accurately 
 the fundamental theories of the House's law. 
 
 Abundant references have been made to precedents of the United States Senate 
 where they are of such a nature as to throw light on principles related to the pro- 
 cediu-e of the House, but no attempt has been made to make a complete collection 
 of them. Some of those that are given are of the highest value, representing con- 
 clusions formed after careful examination. 
 
 In references to dates and volumes of debates and journals many thousands 
 of footnotes are given. It is not reasonable to hope that no errors have crept in, 
 but the system of double reference to dates and paging is such that the text of the 
 work may be corroborated without difficulty from the pages of the journals and 
 debates. 
 
 AsHER C. Hinds. 
 
 Portland, Me., Septembers, 1907.
 
 CONTENTS. 
 
 VOLUME I. 
 
 Chapter I. 
 THE MEETING OF CONGRESS. 
 
 1. Provisions of Constitution and statutes. Sections 1 and 2. 
 
 2. Assembling of the First Congress as fixiag, beginning of terms. Section 3. 
 
 3. Time of assembling as governed by proclamation, law, and Constitution. Sections 4-13. 
 
 Chapter II. 
 THE CLERK'S ROLL OF THE MEMBERS-ELECT. 
 
 1. The statutes governing the making of the roU. Sections 14, 15. 
 
 2. Early usage as to examination of credentials. Sections 16-18. 
 
 3. Corrections of the Clerk's roll by the House. Sections 19-25. 
 
 4. EnroULag names of Members deceased, resigned, or disqualified. Sections 26-29. 
 
 5. Enrolling on the strength of irregular credentials. Sections 30-39. 
 
 6. Enrolling on the strength of conflicting or imperfect credentials. Sections 40-60. 
 
 7. Enrollment of Delegates. Sections 61, 62. 
 
 8. Withdrawal of credentials. Section 63. 
 
 Chapter III. 
 THE PRESIDING OFFICER AT ORGANIZATION. 
 
 1 . Clerk calls House to order and presides. Sections 64, 65. 
 
 2. Election of a Chairman in place of Qerk. Sections 66, 67. 
 
 3. Early practice of Clerks to decide questions of order. Sections 68-72. 
 
 4. Later practice as to authority of Clerk. Sections 73-80. 
 
 Chapter IV. 
 PROCEDURE AND POWERS OF THE MEMBERS-ELECT IN ORGANIZATION. 
 
 1. Forms of proceeding at organization. Section 81. 
 
 2. Status of House before organization. Section 82. 
 
 3. Call of the roll of Members-elect. Sections 83-86. 
 
 4. Sessions, adjournment, etc., during organization. Sections 87-92. 
 
 5. Adoption of rules. Sections 93-102. 
 
 6. Participation of contesting delegations in organization. Section 103. 
 
 7. Fixing the hour of daily meeting. Sections 104-117. 
 
 8. Illustration of a body called to order at organization by an old Member. Section 118. 
 
 9. The drawing of seats. Sections 119-121. 
 
 10. As to action by one House before the other is organized. Sections 122-126.
 
 VIII CONTENTS. 
 
 Chapter V. 
 THE OATH. 
 
 1. Provisions of the Constitution and statutes. Sections 127. 128. 
 
 2. Form of organization of First Congress. Section 129. 
 
 3. Administration to the Speaker. Sections 130-133. 
 
 4. Limited discretion of the Speaker in administering. Sections 134-139. 
 
 5. Challenging the right of a Member to be sworn. Sections 140-150. 
 
 6. Disposal of cases of challenge. Sections 151-159. 
 
 7. Delays in taking the oath. Sections 160-161. 
 
 8. Administration before arrival of credentials. Sections 162-168. 
 
 9. Administration to Members away from the House. Sections 169, 170. 
 
 10. Relations to the quorum, reading of the journal, etc. Sections 171-181. 
 
 11. Status of the Member-elect before taking. Sections 183-185. 
 
 Chapter VI. 
 THE OFFICERS OF THE HOUSE AND THEIR ELECTION. 
 
 1. Provisions of Constitution and rule. Sections 186, 187. 
 
 2. General procedure of election. Sections 188-203. 
 
 3. The election of Speaker. Sections 204-230. 
 
 4. Resignation or death of Speaker. Sections 231-234. 
 
 5. The Clerk and his election. Sections 235-245. 
 
 6. Absence of the Clerk. Sections 246-248. 
 
 7. Authority and duties of the Clerk. Sections 249-253. 
 
 8. The Clerk custodian of the seal of the House. Sections 254-256. 
 
 9. The duties of the Sergeant-at-Arms. Sections 257-259. 
 
 10. The Doorkeeper and his duties. Sections 260-263. 
 
 11. Resignations and deaths of officers. Sections 264-268. 
 
 12. The Postmaster and his duties. Sections 269-271. 
 
 13. The Chaplain and his duties. Sections 272-282. 
 
 14. Defense of officers in actions. Section 283. 
 
 Chapter VII. 
 REMOVAL OF OFFICERS OF THE HOUSE. 
 
 1. A proposition to remove an officer a question of privilege. Sections 284-285. 
 
 2. Instances of removal, arraignment, and investigation. Sections 286-296. 
 
 Chapter VIII. 
 THE ELECTORS AND APPORTIONMENT. 
 
 1. Constitution and laws relating to electors. Sections 297-300. 
 
 2. Constitution and laws relating to apportionment. Sections 301-304. 
 
 3. Bills relating to census and apportionment, privileged. Sections 305-308. 
 
 4. Failure of States to apportion. Sections 309, 310. 
 
 5. Filling of vacancies in rearranged districts. Sections 311, 312. 
 
 6. Right of the State to change districts. Section 313. 
 
 7. Claims of States to representation in excess of apportionment. Sections 314-319.
 
 CONTENTS. IX 
 
 Chapter IX. 
 ELECTORATES INCAPACITATED GENERALLY. 
 
 1. Effect of informalities in the election. Sections 320-323. 
 
 2. Intimidation and its effects. Sections 324-341. 
 
 3. Principles involved in Senate decisions as to competency of legislatures. Sections 342-360. 
 
 Chapter X. 
 ELECTORATES DISTRACTED BY CIVIL WAR. 
 
 1. Joint rule excluding persons elected in insurrectionarj- States. Section 361. 
 
 2. Informal elections in districts under military duress. Sections 362-381. 
 
 3. Principles deduced from Senate decisions as to States under military duress. Sections 382-385. 
 
 Chapter XI. 
 ELECTORATES IN RECONSTRUCTION. 
 
 1. Members elect from insurrectionary- States not admitted on prima facie title. Sections 386-388. 
 
 2. Case of the Georgia Members in 1869. Section 388. 
 
 3. Principles deduced from Senate decisions. Sections 389-395. 
 
 Chapter XII. 
 ELECTORATES IN NEW STATES AND TERRITORIES. 
 
 1. Admission of Members after passage of act admitting State. Sections 390-399. 
 
 2. Delegates from portions of the Northwest Territory. Sections 400-401. 
 
 3. Delegates admitted after portion of Territory becomes a State. Sections 402^04. 
 
 4. Territory must be organized to justify admission of Delegates. Sections 405-412. 
 
 Chapter XIII. 
 THE QUALIFICATIONS OF THE MEMBER. 
 
 1. Provision of the Constitution. Section 414. 
 
 2. State may not prescribe. Sections 415-417. 
 
 3. Age. Section 418. 
 
 4. Citizenship in the United States. Sections 419-427. 
 
 5. Principles deduced from Senate decisions as to citizenship. Sections 428^30. 
 
 6. Citizenship of Delegates. Section 431. 
 
 7. Inhabitancy. Sections 432^36. 
 
 8. Principles deduced from Senate decisions as to inhabitancy. Sections 437-440. 
 
 Chapter XIV. 
 THE 0.\TH AS RELATED TO QUALIFICATIONS. 
 
 1. The question of sanity. Section 441. 
 
 2. Questions of loyalty arising before the adoption of the Fourteenth Amendment. Sections 442-453. 
 
 3. Provisions of the Fourteenth Amendment. Sections 455-463.
 
 X CONTENTS. 
 
 Chapter XV. 
 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 
 
 1. Cases of Whittemore, Connor, and Acklen. Sections 464-466. 
 
 2. The polygamy cases of 1868, 1873, and 1882. Sections 467^73. 
 
 3. The case of Brigham H. Roberts. Sections 474-480. 
 
 4. The Senate case of Reed Smoot. Sections 481-483. 
 
 5. Incidental opinion of a House committee. Section 484. 
 
 Chapter XVI. 
 INCOMPATIBLE OFFICES. 
 
 1. Provision of the Constitution. Section 485. 
 
 2. Cases of Van Ness, Hammond, Baker, and Yell. Sections 486^89. 
 
 3. Cases of Vandever, Lane, Schenck, and Blair, Sections 490-492. 
 
 4. General examination as to military officers, paid and unpaid services, etc. Sections 493-496. 
 
 5. Ca-ses of Mumford, Earle, Herrick, and Wheeler. Sections 497-500. 
 
 6. Questions as to vacancies, contestants, etc. Sections 501-506. 
 
 Chapter XVII. 
 TIME, PLACES, AND MANNER OF ELECTION. 
 
 1. Provisions of Constitution and statutes. Sections 507-516. 
 
 2. Power of State executive to call elections to fill vacancies. Sections 517, 518. 
 
 3. Time fixed by schedules of new State constitutions. Sections 519, 520. 
 
 4. Disputes as to legal day of election. Sections 521-525. 
 
 5. Failure of Territorial legislature to prescribe manner, etc. Sections 526, 527. 
 
 Chapter XVIII. 
 CREDENTIALS AND PRIMA FACIE TITLE. 
 
 1. In due form from recognized constituency. Sections 528-537. 
 
 2. Questions as to validity of. Sections 538-543. 
 
 3. In relation to questions as to the fact of election. Sections 544-552. 
 
 4. Refusal of State executives to issue. Sections 553-564. 
 
 5. In relation to questions as to vacancy. Sections 565-570. 
 
 6. As related to contested elections. Sections 571-588. 
 
 Chapter XIX. 
 IRREGULAR CREDENTIALS. 
 
 1. House exercises discretion in case of informality. Sections 589-610. 
 
 2. Impeached by evidence in their own terms. Sections 699-611. 
 
 Chapter XX. 
 CONFLICTING CREDENTIALS. 
 
 1. Decisions of the House as to prima facie title. Sections 612-627. 
 
 2. Principles deduced from Senate decisions. Sections 628-633.
 
 CONTENTS. XI 
 
 Chapter XXI. 
 THE HOUSE THE JUDGE OF CONTESTED ELECTIONS. 
 
 1. Pro\dsion of the Constitution. Section 634. 
 
 2. Functions of Elections Committee. Sections 635, 636. 
 
 3. House not bound by returns of State authorities. Sections 637, 638. 
 
 4. Relations of House to acts of canvassing officers. Sections 639-645. 
 
 5. House ascertains intent of voter when ballot is ambiguous. Sections 646-650. 
 
 6. Discretion of House in investigating elections. Sections 651-653. 
 
 7. Practice in making decisions. Sections 653-656. 
 
 8. Privileges of contestant and returned Member in debate. Sections 657-672. 
 
 9. General practice. Sections 673-677. 
 
 Chapter XXII. 
 PLEADINGS IN CONTESTED ELECTIONS. 
 
 1. Provision of statute as to notice and answer. Section 678. 
 
 2. Attitude of House as to informalities in. Sections 679-687. 
 
 3. Foundation required for Senate investigations as to bribery, etc. Sections 688-690. 
 
 Chapter XXIII. 
 TESTIMONY IN CONTESTED ELECTIONS. 
 
 1. Provisions of the statutes. Sections 697-706. 
 
 2. Rules of Elections Committee. Section 707. 
 
 3. Early method of taking evidence. Sections 708, 709. 
 
 4. Special authorizations to take evidence. Sections 710-718. 
 
 5. Questions as to evidence improperly taken. Sections 719, 721. 
 
 6. Extension of time for taking. Sections 722-728. 
 
 7. E\'idence taken ex parte. Sections 729, 730. 
 
 8. Production of ballots. Sections 731-733. 
 
 Chapter XXIV. 
 ABATEMENT OF ELECTION CONTESTS. 
 
 1. House decides as to. Sections 734-738. 
 
 2. Various conditions of. Sections 739-755. 
 
 Chapter XXV. 
 GENERAL ELECTION CASES, 1789 TO 1840. 
 
 1. Cases in the First, Third, and Fourth Congresses. Sections 756-764. 
 
 2. Cases in the Eighth, Eleventh, Thirteenth, and Fourteenth Congresses. Sections 765-773. 
 
 3. Cases from the Sixteenth to the Nineteenth Congresses. Sections 774-777. 
 
 4. Cases in the Twenty-first. Twenty-second, and Twenty-fourth Congresses. Sections 778-786. 
 
 5. The Senate cases of Smith, Winthrop, Phelps, and Cass. Sections 787-790. 
 
 Chapter XXVI. 
 GENERAL ELECTION CASES, 1840 TO 1850. 
 
 1. The "Broad Seal" case in the Twenty-sixth Congress. Sections 791-802. 
 
 2. Cases from the Twenty-sixth to the Thirty-first Congresses. Sections 803-820.
 
 XII CONTENTS. 
 
 Chapter XXVII. 
 GENERAL ELECTION CASES, 1850 TO 1860. 
 
 1. House cases from the Thirty-second to the Thirty-sixth Congresses. Sections 821-843. 
 
 2. The Senate case of James Harlan. Section 844. 
 
 VOLUME II. 
 
 Chapter 28. General election cases, 1860 to 1870. 
 
 Chapter 29. General election cases, 1870 to 1875. 
 
 Chapter 30. General election cases, 1875 to 1880. 
 
 Chapter 81. General election cases, 1880 and 1881. 
 
 Chapter 32. General election cases, in 1882. 
 
 Chapter 33. General election cases, in 1883. 
 
 Chapter 34. General election cases, 1884 and 1885. 
 
 Chapter 35. General election cases, 1886 to 1888. 
 
 Chapter 36. General election cases, 1889 to 1891. 
 
 Chapter 37. General election cases, 1892 to 1894. 
 
 Chapter 38. General election cases, 1895 to 1897. 
 
 Chapter 39. General election cases, 1898 to 1901. 
 
 Chapter 40. General election cases, 1902 to 1906. 
 
 Chapter 41. The Members. 
 
 Chapter 42. Punishment and expulsion of Members. 
 
 Chapter 43. Delegates. 
 
 Chapter 44. The Speaker. 
 
 Chapter 45. The Speaker pro tempore. 
 
 Chapter 46. The Speaker's power of recognition. 
 
 Chapter 47. Prerogatives of the House as to revenue legislation. 
 
 Chapter 48. Prerogatives of the House as to treaties. 
 
 Chapter 49. Prerogatives of the House as to foreign relations. 
 
 Chapter 50. Prerogatives of the House as related to the Executive. 
 
 Chapter 51. Power to punish for contempt. 
 
 Chapter 52. Punishment of Members for contempt. 
 
 VOLUME III. 
 
 Chapter 53. Punishment of witnesses for contempt. 
 
 Chapter 54. The power of investigation. 
 
 Chapter 55. The conduct of investigations. 
 
 Chapter 56. Investigations of conduct of Members. 
 
 Chapter 57. Inquiries of the Executive. 
 
 Chapter 58. Procedure of the electoral count. 
 
 Chapter 59. The electoral counts, 1789 to 1873. 
 
 Chapter 60. The electoral counts, 1877 to 1905. 
 
 Chapter 61. Objections at the electoral count. 
 
 Chapter 62. Election and inauguration of President. 
 
 Chapter 63. Nature of impeachment. 
 
 Chapter 64. Function of the House in impeachment. 
 
 Chapter 65. Function of the Senate in impeachment. 
 
 Chapter 66. Procedure of the Senate in impeachment. 
 
 Chapter 67. Conduct of impeachment trials. 
 
 Chapter 68. Presentation of testimony in an impeachment trial. 
 
 Chapter 69. Rules of evidence in an impeachment trial. 
 
 Chapter 70. The impeachment and trial of William Blount. 
 
 Chapter 71. The impeachment and trial of John Pickering.
 
 CONTENTS. XIII 
 
 Chapter 72. The impeachment and trial of Samuel Chase. 
 
 Chapter 73. The Lmpeachment and trial of James H. Peck. 
 
 Chapter 74. The impeachment and trial of West H. Humphreys. 
 
 Chapter 75. The first attempts to impeach the President . 
 
 Chapter 76. The impeachment and trial of the President. 
 
 Chapter 77. The impeachment and trial of William W. Belknap. 
 
 Chapter 78. The impeachment and trial of Charles Swayne. 
 
 Chapter 79. Impeachment proceedings not resulting in trial. 
 
 Chapter 80. Questions of privilege and their precedence. 
 
 Chapter 81. Privilege of the House. 
 
 Chapter 82. Privilege of the Member. 
 
 VOLUME IV. 
 
 Chapter 83. The Journal and its approval. 
 
 Chapter 84. The making of the Journal. 
 
 Chapter 85. The quorum. 
 
 Chapter 86. The call of the House. 
 
 Chapter 87. The order of business. 
 
 Chapter 88. Special orders. 
 
 Chapter 89. Private and District of Columbia business. 
 
 Chapter 90. Petitions and memorials. 
 
 Chapter 91. Bills, resolutions, and orders. 
 
 Chapter 92. Approval of bills by the President. 
 
 Chapter 93. Bills returned without the President's approval. 
 
 Chapter 94. General appropriation bills. 
 
 Chapter 95. Authorization of appropriations on general appropriation bills. 
 
 t'hapter 96. Appropriations in continuation of a public work. 
 
 Chapter 97. Legislation in general appropriation bills. 
 
 Chapter 98. Limitations in general appropriation bills. 
 
 Chapter 99. History and jurisdiction of the standing committees. 
 
 Chapter 100. History and jurisdiction of the standing committees. (Continued.) 
 
 Chapter 101. Historj" and jurisdiction of the standing committees. (Continued.) 
 
 Chapter 102. General principles of jurisdiction of committees. 
 
 Chapter 103. Select and joint committees. 
 
 Chapter 104. Appointment of committees. 
 
 Chapter 105. Organization and procedure of committees. 
 
 Chapter 106. Reports of committees. 
 
 Chapter 107. The Committee of the Whole. 
 
 Chapter 108. Subjects requiring consideration in Committee of the Whole. 
 
 Chapter 109. Reports from the Committee of the WTiole. 
 
 Chapter 110. Consideration "In the House as in Committee of the Whole." 
 
 VOLUME V. 
 
 Chapter 111. The question of consideration. 
 
 Chapter 112. Conduct of debate in the House. 
 
 Chapter 113. References in debate to committees, the President, nr the other House. 
 
 Chapter 114. Disorder in debate. 
 
 Chapter 115. Debate in Committee of the Whole. 
 
 Chapter 116. Reading of papers. 
 
 Chapter 117. Motions in general. 
 
 Chapter 118. The motion to adjourn. 
 
 Chapter 119. The motion to lay on the table. 
 
 Chapter 120. The previous question. 
 
 Chapter 121. The ordinary motion to refer.
 
 XIV 
 
 CONTENTS. 
 
 Chapter 122. The motion to refer as related to the previous question 
 
 Chapter 123. The motion to reconsider. 
 
 Chapter 124. Dilatory motions. 
 
 Chapter 125. Amendments. 
 
 Chapter 126. The House rule that amendments must be germane. 
 
 Chapter 127. General principles as to voting. 
 
 Chapter 128. Voting by tellers and by ballot. 
 
 Chapter 129. The vote by yeas and nays. 
 
 Chapter 130. Division of the question for voting. 
 
 Chapter 131. Amendments between the Houses. 
 
 Chapter 132. General principles of conferences. 
 
 Chapter 133. Appointment of managers of a conference. 
 
 Chapter 134. Instruction of managers of a conference. 
 
 Chapter 135. Managers to consider only matters in disagreement. 
 
 Chapter 136. Privilege and form of conference reports. 
 
 Chapter 137. Consideration of conference reports. 
 
 Chapter 138. Messages and communications. 
 
 Chapter 139. Recess. 
 
 Chapter 140. Sessions and adjournments. 
 
 Chapter 141. The rules. 
 
 Chapter 142. Suspension of the rules. 
 
 Chapter 143. Questions of order and appeals. 
 
 Chapter 144. The Congressional Record. 
 
 Chapter 145. Amendments to the Constitution. 
 
 Chapter 140. Ceremonies. 
 
 Chapter 147. Service of the House. 
 
 Chapter 148. Miscellaneous. 
 
 VOLUME VI. 
 
 INDEX-DIGEST. 
 
 [AtoG.] 
 
 VOLUME vn. 
 
 INDEX-DIGEST. 
 
 [H toP.] 
 
 VOLUME VIIL 
 
 INDEX-DIGEST. 
 
 [QtoZ.]
 
 Chapter I* 
 THE MEETING OF CONGRESS. 
 
 1. Provisions of Constitution and Statutes. Sections 1 and 2. 
 
 2. Assembling of the First Congress as fixing beginning of terms. Section 3.' 
 
 3. Time of assembling as governed by proclamation, law, and Constitution. SectionB 
 
 4-13. 
 
 1. The Constitution provides for the annual meeting of Congress. — 
 Section 4, Article I of the Constitution, provides : 
 
 The Congress shall assemble at least once in every year, and such meeting shall be on the first 
 Monday in December, unless they shall by law appoint a different day. 
 
 Also, in section 3 of Article II, the further provision is made that the Presi- 
 dent of the United States "may, on extraordinary occasions, convene both Houses, 
 or either of them."^ 
 
 2. In certain exigencies the President may convene Congress at a 
 place other than the seat of government. 
 
 The District of Columbia is the seat of government. 
 Section .34 of the Revised Statutes, reenacting the law of April 3, 1794 (1 Stat. 
 L., p. 353), provides: 
 
 ■Whenever Congress is about to convene and from the prevalence of contagious sickness or the exist- 
 ence of other circumstances, it would, in the opinion of the President, be hazardous to the lives or health 
 of the Members to meet at the seat of government, the President is authorized, by proclamation, to 
 convene Congress at such other place as he may judge proper.* 
 
 * See Volume VI, Chapter CXLIX. 
 
 ' The term of the Member must be coincident with the term of the Congress (see sec. 388 of this 
 volume); but in the earlier practice this was not necessarily so as to a Delegate from a Territory (see 
 sec. 403 of this volume). 
 
 ^ Congress has frequently met on a day other than the first Monday in December, being convened 
 sometimes by a law and sometimes by the President. (See Journals of the House for the First, Second, 
 Fifth, Eighth, Tenth, Eleventh, Twelfth, Thirteenth, Twenty-fifth, Twenty-seventh, Thirty-fourth, 
 Thirty-seventh, Fortieth, Forty-first, Forty-second, Forty-fifth, Forty-sixth, Fifty-third, and Fifty- 
 fifth Congresses.) Sometimes Congress, having been convened before the first Monday in December, 
 has continued its session to and beyond that day, and having adjourned sine die has not, if it was a 
 first session, convened again until the first Monday of the next December. (See Journals of the House 
 for the Second, Eighth, Tenth, Eleventh, and Twelfth Congresses.) A Congress expires on March 3 
 of the odd year, and its successor may be convened on the next day, March 4 (see Journal of House for 
 Fortieth Congress), although by the Constitution it would natiually not meet until the first Monday of 
 the succeeding December. 
 
 'The act of July 16, 1790 (1 Stat. L., p. 130) had provided that the seat of government should be 
 transferred to the District of Columbia by the first Monday of December, 1800. 
 5994— VOL 1—07 1
 
 2 PRECEDENTS OF THE HOUSE OF EEPEESENTATIVES. § 3 
 
 3. By resolution of the Continental Congress the First Congress under 
 the Constitution met on March 4, 1789. 
 
 The term of a Congress begins on the fourth of March of the odd-num- 
 hered years, and extends through two years. 
 
 A Member elected to fill a vacancy serves no longer time than the re- 
 mainder of the term of the Member whose place he takes. 
 
 The House sometimes appoints a committee to act with a similar com- 
 mittee from the Senate in relation to some question of moment. 
 
 On April 30, 1790,' the House agreed to the following: 
 Resolved, That a committee of this House be appointed, to join with a committee to be appointed 
 by the Senate, to consider and report their opinion on the question when, according to the Constitu- 
 tion, the terms for which the President, Vice-President, Senators, and Representatives have been 
 respectively chosen, shall be deemed to have commenced. 
 
 Messrs. Egbert Benson, of New York; George Clymer, of Pennsylvania; Ben- 
 jamin Huntingdon, of Connecticut; Andrew Moore, of Virginia, and Daniel Carroll, 
 of Marj'land, were appointed a committee. 
 
 To these the Senate joined ^ Messrs. Oliver Ellsworth, of Connecticut; Rufus 
 King, of New York, and Robert Morris, of Pennsylvania. 
 
 On May 18^ the House agreed to report as follows: 
 That the terms for which the President, Vice-President, Senate, and House of Representatives of 
 the United States were respectively chosen, did, according to the Constitution, commence on the fourth 
 of March, 1789. And so the Senators of the first class, and the Representatives, will not, according to 
 the Constitution, be entitled, by virtue of the same election by which they hold seats in the present 
 Congress, to seats in the next Congress, which will be assembled after the third of March, 1791. And 
 fiirther, that whenever a vacancy shall happen in the Senate or House of Representatives, and on elec- 
 tion to fill such vacancy, the person elected will not, according to the Constitution, be entitled, by 
 virtue of such election, to hold a seat beyond the time for which the Senator or Representative in whose 
 Btead such person shall have been elected, would, if the vacancy had not happened, have been entitled 
 to hold a seat. 
 
 The committee recommended the passage of a law regulating the choice of 
 electors, etc. 
 
 This report had been previously agreed to in the Senate.* 
 
 The first session of the First Congress assembled, as shown by the Journal of 
 the House — 
 
 on Wednesday, the fourth of March, 1789, pursuant to a resolution of the late Congress, made in con- 
 formity to the resolutions of the Federal Convention of the 17th of September, 1787. 
 
 The late Congress, which was the Continental Congress, it being ascertained 
 that the required number of States had ratified the Constitution, had on September 
 13, 1788—' 
 
 Resolved, That the first Wednesday in Januarj' next be the day for appointing electors in the sev- 
 eral States, which, before the said day, shall have ratified the said Constitution; that the first Wednes- 
 day in February next be the day for the electors to assemble in their respective States and vote for a 
 President, and that the first Wednesday in March next be the time and the present seat of Congress the 
 place for commencing proceedings under the said Constitution. 
 
 'Second session First Congress. Journal, p. 207 (Gales & Seaton, ed.); Annals, p. 1603. 
 
 -Annals, p. 1006. 
 
 'Journal, p. 218 (Gales & Seaton, ed.); Annals, p. 1638. 
 
 ■"Journal, p. 216 (Gales & Seaton, ed.); Annals, p. 1010. 
 
 'Journal of Continental Congress, edition of 1823, Vol. IV, p. 866
 
 § 4 THE MEETING OF CONGRESS. 3 
 
 4. It being desirable that the hour of the first meeting' of a Congress 
 should be later than 12 m., the purpose was effected by a joint resolu- 
 tion. — In 1869 a law provided that the next Congress should, as had the current 
 Congress, meet on the 4th day of March. As the 4th day of ilarch, 1869, would 
 be the day of the inauguration, Congress passed a joint resolution providing that 
 the time for the regular meeting of the House of Representatives should be postponed 
 from 12 o'clock meridian on March 4, 1869, to the hour of 3 o'clock in the afternoon 
 of the same day. ' 
 
 5. The First Congress by law appointed for its second meeting a day 
 later than the day fixed by the Constitution. 
 
 The First Congress having met once in each of its two years of exist- 
 ence, a doubt existed as to whether or not it would legally meet again on 
 the day appointed by the Constitution. 
 
 Instance wherein Congress in adjourning fixed by resolution the 
 time of meeting of the next session on the constitutional day. 
 
 Instances of laws fixing the time of annual meeting of Congress. 
 
 The First Congress met on March 4, 1789,'' in accordance with the terms of a 
 resolution of the Continental Congress.^ This session continued until September 29, 
 1789. Before adjourning the following law was enacted, being approved Sep- 
 tember 29, 1789: 
 
 That after the adjournment of the present session, the next meeting of Congress shall be on the 
 first Monday in January next.'' 
 
 Thus it will be observed that the law fixed a date later than the first Monday 
 in December specified by the Constitution. The second session extended from 
 January 4, 1790, until August 12, 1790.^ The third session began on the consti- 
 tutional day, the first Monday of December, 1790, but apparently some doubt 
 existed as to whether the Constitution would require a meeting on that day, for, 
 on August 10,° near the close of the second session, the House Jotu-nal has this entry: 
 A message from the Senate by Mr. Otis, their Secretary: 
 
 Mr. Speaker: The Senate have come to a resolution that the resolution of the 6th instant, authorizing 
 the Speaker of the House of Representatives and President of the Senate to close the present session 
 by adjoiiming their respective Houses on this day be repealed, and that instead thereof they be 
 authorized to adjourn their respective Houses on the 12th instant, to meet again on the first Monday 
 in December next; to -which they desire the concurrence of this House. 
 
 And then he withdrew. 
 
 The House proceeded to consider the said resolution, and, the same being read, 
 was agreed to. 
 
 The jotmial of December 6, 1790,' the first day of the third session, has these 
 introductory words in reference to the date : " On which day, being the day appointed 
 by adjotuTunent of the two Houses for the meeting of the present session." 
 
 ' Third session, Fortieth Congress, Journal, pp. 404, 405, 486; Globe, pp. 1425, 1582. 
 
 ^ First session. First Congress, Journal, p. 3 (Gales & Sea ton cd.). 
 
 2 Journal of Continental Congress, edition of 1823, Vol. IV, p. 866. 
 
 * 1 Stat. L., p. 96. 
 
 ' Journal, pp. 134, 298. 
 
 6 Journal, pp. 296, 297. 
 
 ' Journal, p. 330.
 
 4 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 6 
 
 6. Early Congresses, having by law met on a day earlier than the 
 constitutional day, remained in continuous session to a time beyond that 
 
 day. 
 
 In 1797 the Congress assembled on the day constitutionally provided 
 by law, although it had already held a session that year. 
 
 The early laws fixing the time for the meeting of Congress specified 
 the day but not the hour. 
 
 At the last session of the Fu-st Congress the foUowmg law was enacted, being 
 approved March 2, 1791 :' 
 
 That after the third day of March next, the first annual meeting of Congress shall be on the iourth 
 Monday of October next. 
 
 Accordingly the first session of the Second Congress met October 24, 1791,= 
 and it continued in session imtil May 8, 1792. No attention was paid to Monday, 
 December 5, 1791 (the day appointed for the assembling of Congress ordinarily), 
 the sessions of the House proceedmg iminterruptedly over that period. 
 
 At this first session of the Second Congress this law ^ was enacted, being 
 approved May 5, 1792: 
 
 That after the adjournment of the present session, the next annual meeting of Congress shall be on 
 the first Monday in November next. 
 
 Accordingly the second session met on November 5, 1792," and continued in 
 session through Monday, December 3, 1792, the day prescribed by the Constitution. 
 
 7. The first session of the Third Congress met on the constitutional daj', 
 December 2, 1793,^ but it was provided by law that the second session should meet 
 on the first Monday in November.' So accordingly it met on November 3, 1794,' 
 and continued in session without interruption thi-ough Monday, December 1, the 
 constitutional day. 
 
 Both sessions of the Fourth Congress met on the days appointed by the Con- 
 stitution.* 
 
 The act of March 3, 1797,° provided that the next meeting of Congress should 
 be on "the [first?] Monday of November in the present year;" but the President 
 convened the Fifth Congress in extraordinary session on May 15, 1797.'" This 
 session lasted imtil July 10. Then, on Monday, November 13, 1797," the "day 
 appointed by law,'' as the Journal says, the regular session began. This continued 
 through Monday, December 4, the constitutional day, without interruption. 
 
 The third session of the Fifth Congress met on the day appointed by the 
 Constitution. 
 
 ' 1 Stat. L., p. 198. 
 
 - First session Second Congress, Journal, p. 433 (Gales & Seaton ed.). 
 
 3 1 Stat. L., p. 267. 
 
 * Second session Second Congress, Journal, p. 609. 
 ' First session Third Congress, Journal, p. 3. 
 
 « 1 Stat. L., p. 370. 
 
 ' Second session Third Congress, Journal, p. 223. 
 
 * Journal, pp. 364, 606. 
 »1 Stat. L., p. 507. 
 
 '° First session Fifth Congress, Journal, p. 3. 
 
 " The statute says first Monday, but the House met November 13, which wo!! the second Monday.
 
 § 8 THE MEETING OF CONGRESS. 5 
 
 8. The first session of the Sixth Congress met on the day appointed by law ; 
 but the act of May 13, 1800/ convened the second session on the third Monday of 
 November, 1800. It met on that day and continued in session through Monday, 
 December 1, 1800,^ the day appointed by the Constitution. 
 
 The second sessions of both the Tenth and Eleventh Congresses were convened 
 by law; but in neither of these laws nor in any of the previous laws convening 
 Congress was the hour of meeting specified in the law. 
 
 9. On May 22, 1809,^ the day appointed by law * for the meeting of the session, 
 the first session of the Eleventh Congress convened, and remained in session until 
 June 28, 1809. At this session the follo\ving law^ was passed: 
 
 That after the adjournment of the present session, the next meeting of Congress shall be on the fourth 
 Monday of November next. 
 
 On November 27, 1809,° in accordance with the law, the Congress met in its 
 second session, and continued in session until May 1, 1810. Wlien the first Monday 
 in December, 1809, arrived (the day prescribed b}' the Constitution for the meeting 
 of Congress ordinarily) the House continued its session without any recognition of 
 the day.' 
 
 The second sessions of both the Fifteenth and Sixteenth Congresses were con- 
 vened by law on a day earUer than the constitutional day, and remained in sessions 
 through that day. Neither of these laws specified the hour of meeting. 
 
 10. Early Congresses, convened either by proclamation or law on a day 
 earlier than the constitutional day, remained in continuous session to a 
 time beyond that day. 
 
 In the later but not the earlier practice the fact that Congress has met 
 once within the year does not make uncertain the constitutional mandate 
 to meet on the first Monday of December. 
 
 Instances wherein Congress has been convened by proclamation or by 
 law. 
 
 Instance wherein a law convening Congress specified the hour as 
 well as the day. 
 
 At the second session of the Seventh Congress, by the act approved March 3, 
 1803,* it was provided: 
 
 That after the adjournment of the present session, the next meeting of Congress shall be on the first 
 Monday of November next. 
 
 But by proclamation of the President the Eighth Congress was convened on 
 October 17, 1803,° and remained in session until March 27, 1804. The session 
 
 ' 2 Stat. L., p. 85. 
 
 ' Second session Sixth Congress, Journal, p. 733. 
 
 ' First session Eleventh Congress, Journal, pp. 3, 102 (Gales & Seaton ed.). 
 
 ^ 2 Stat. L., p. 514. This law, passed by the Tenth Congress, provided: "That after the adjourn- 
 ment of the present session, the next meeting of Congress shall be on the fourth Monday of May next." 
 
 5 2 Stat. L., p. 549. 
 
 " Second session Eleventh Congress, Journal, pp. 10.5, 428. 
 
 'See also journals of the First, Second, Third, Fifth, Sixth, Eighth, and Tenth Congresses, when 
 sessions were convened before the arrival of the constitutional day. 
 
 «2Stat. L.,p. 242. 
 
 'First session Eighth Congress, Journal, p. 401.
 
 6 PRECEDENTS OF THE HOUSE OF EEPKESENTATIVES. § 11 
 
 continued without break through Monday, November 7,' the day appointed by law, 
 and through Monday, December 5,^ the day appointed by the Constitution. 
 
 The second session of the Eiglith Congress met November 5, 1804,^ in accordance 
 with a law approved March 26, 1804,^ and continued in session through and beyond 
 Mondaj^, Deceml^er 3, 1804, the day appointed by the Constitution. 
 
 No law changed the constitutional date for the first meeting of the Tenth 
 Congress, but it was convened by proclamation of the President on October 26, 
 1807," and remained in session until April 2, 1808, without any break for the consti- 
 tutional day of meeting, Monday, December 7.° 
 
 A law approved April 22, 1808,' provided that the second session of the Tenth 
 Congress should meet November 7, 1808, and it did so meet and contmued in 
 session tlirough Monday, December 5,^ the day appointed by the Constitution. 
 
 The first session of the Twelfth Congress was convened by proclamation of the 
 President on November 4, 1811,' and continued in session until July 6, 1812, 
 no change in the ordinary proceedings occurring on Monday, December 2, 1811,'" 
 the day appointed by the Constitution for the assembling of Congress ordinarily. 
 
 By act approved July 6, 1812," the time for the meeting of the next session 
 was fixed on "as the first Monday of November next," and on that day the House 
 assembled and continued in session through Monday, December 7, 1812, the day 
 appointed by the Constitution." 
 
 The first and second sessions of the Tliirteenth Congress were called by law, 
 the second session adjourning on April 18, 1814. At this second session a law 
 was passed and approved April 18, 1814,'- fixing "the last Monday ia October 
 next" for the next meeting of Congress. But the President, by proclamation, 
 convened the session before that day, on September 19, 1814,'^ and it continued 
 in session through Monday, October 21, the day appointed by law, and Monday, 
 December 5, the day appointed by the Constitution.'* 
 
 11. The first session of the Thirteenth Congress met, in accordance with law,'^ 
 on May 24, 1813, and ended August 2, 1813. At this session the following law 
 was passed, being approved on July 27, 1813: '° 
 
 ' Journal, p. 438. 
 
 ^Journal, p. 467; Annals, p. 641. Nathaniel Macon, of North Carolina, was Speaker. 
 
 3 Second session Eighth Congress, Journal, pp. 3, 29. 
 
 *2 Stat. L., p. 283. 
 
 'First session Tenth Congress, Journal, p. 4. 
 
 ^Journal, p. 66: Annals, p. 1058. Joseph B. Varnuni, of Massachusetts, was Speaker. 
 
 '2 Stat. L., p. 490. 
 
 8 Second session Tenth Congress, Journal, p. 374. 
 
 ^ First session Twelfth Congress, Journal, pp. 3, 49. Henry Clay, of Kentucky, was Speaker. 
 '° First session Twelfth Congress, Annals, p. 395. 
 
 "2 Stat. L., pp. 781, 782; second session Twelfth Congress, Journal, pp. 537, 575. 
 '2 3 Stat. L., p. 128. 
 
 '^ Third session Thirteenth Congress, Annals, p. 750. 
 
 '* Journal, third session, pp. 447, 509, 562. Langdon Cheves, of South Carolina, Speaker. 
 '5 2 Stat. L., p. 804. 
 '«3 Stat. L., p. 48.
 
 § 12 THE MEETING OP CONGRESS. 7 
 
 That after the adjournment of the present session, the next meeting of Congress shall be on the 
 first Monday of December next. 
 
 When the second session assembled on Monday, December 6, 1813, the Journal 
 records that it was " the day appointed by law," rather than the day appointed by 
 the Constitution.' 
 
 In the Twenty-fifth, Twenty-seventh, Thirty-fourth, Thirty-seventh, Forty- 
 sixth, Fifty-tliird, and Fifty-fifth Congresses special sessions were called by the 
 President; but in no case was it thought necessary by law to fix the next meeting 
 after the special session, but the prov-ision of the Constitution was left to operate.^ 
 
 The Fortieth, Forty-first, and Forty-second Congresses were convened in 
 accordance with the terms of the following law, approved January 22, 1867:' 
 
 That in addition to the present regular times of meeting of Congress, there shall be a meeting of the 
 Fortieth Congress of the United States, and of each succeeding Congress thereafter, at twelve o'clock 
 meridian,* on the fourth day of March, the day on which the term begins for which the Congress is 
 elected, except that when the fourth day of March occurs on Sunday, then the meeting shall take place 
 at the same hour on the next succeeding day.* 
 
 At no one of the special sessions called by this law was it thought necessary 
 to provide by law for the next session to begin on the constitutional day (the first 
 Monday of December), but the Congress convened that day in obedience to the 
 Constitution. 
 
 12. One Congress having by law provided a time for the meeting of 
 the next Congress, that Congress nevertheless met at an earlier day on 
 call of the President. 
 
 Early sessions of Congress convened by law. 
 
 An early instance wherein the proclamation of the President conven- 
 ing Congress was not printed in the Journal. 
 
 On March 3, 1797,^ the President approved the following law: 
 
 That after the end of the present session, the next meeting of Congress shall be on the first Monday 
 of November, in the present year. 
 
 But on the 2.5th of March, 1797, the President (John Adams) by proclamation 
 convened Congress to meet on May 15, 1797, to consider "divers weighty matters." ^ 
 
 Some qjiestion arose in the House as to the effect this extra session would have 
 on the session provided for by law, and a conference with the Senate on the subject 
 was proposed by the House, but declined by the Senate.^ 
 
 ' Second session Thirteenth Congress, Journal, p. 159. 
 
 = See Statutes at Large, vols. 5, 11, 12, 21, 28, and 30. 
 
 '14 Stat. L., p. 378. 
 
 * This is the first time that the hour of meeting is specified in a law providing for a meeting of 
 Congress. 
 
 ' Repealed by law of the Forty -second Congress. 
 
 ^ Second session Fourth Congress, 1 Stat. L., p. 587. The following sessions were, as to date of begin- 
 ning, fixed by law: Those beginning on first Mondays of January, 1790, of October, 1791, of November, 
 1792, of November, 1794, of November, 1797. See 1 Stat. L., pp. 96, 198, 267, 370, 507. 
 
 'First session Fifth Congress; Annals, p. 50. This proclamation does not appear in the House 
 Journal. 
 
 'First session Fifth Congress, Journal, pp. 50, 52 (Gales & Seaton ed.); Annals, pp. 28, 377.
 
 8 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 13 
 
 On the first Monday of November the regular seession met as provided by law.' 
 13. The statutes provide that in case of the removal, death, resigna- 
 tion, or inability of both President and Vice-President during a recess of 
 
 ' On January 29, 1904 (second session Fifty-eighth Congress, Record, pp. 1401, 1402), the urgent defi- 
 ciency appropriation bill was under consideration in Committee of the Whole House on the state of the 
 Union, and the committee were considering the question of the mileage of Members and the constitu- 
 tional question involved therein. 
 
 In the course of the debate Mr. Allan L. McDermott, of New Jersey, raised an incidental question: 
 
 "My understanding of the Constitution is that there are two kinds of sessions of Congress. One what 
 might be called the President's session, the other the constitutional session. The constitutional session 
 has this provision in the Constitution, that neither House shall adjourn for more than three days without 
 the consent of the other. Now, the session of Congress which 1 may designate as the Presidential session 
 is imder the control of the Executive. I call the gentleman's attention to page 23, section 3, of the 
 book that he has in his hand. 
 
 " On extraordinary occasion on which the President may convene both Houses in case of disagreement 
 between them in respect to the time of adjournment, he may adjourn them to such time as he shall think 
 proper. Now, if there has not been in its relation to the Executive any change in the session — in other 
 words, if it is not another sitting as contemplated by the Constitution — then the President can adjourn 
 Congress to-day to such time as he think fit, if there be a disagreement. 
 
 ii * * * rpijg President has no power to intervene unless the session is an extraordinary one. 
 In other words, the President's session is to be held until they agree to adjourn, or until he tells them 
 to adjourn. The question can not arise at a regular session. The President of the United States can not 
 adjourn Congress as it is now constituted. We can remain in session for two years, from one session to 
 another, and he can not adjourn it. Therefore the session which is called by the President of the United 
 States has a constitutional distinction from that session which is called by the Constitution itself.'' 
 (Mr. McDermott later elaborated his discussion of this question. See Appendix of Record, p. 72.) 
 
 On January 30 (Record, pp. 1411, 1412), the debate continuing, Mr. Charles E. Littlefield, of Maine, 
 Baid: 
 
 "I wish to say just a word with reference to the suggestion very pertinently and forcefully made 
 last evening by the distinguished gentleman from New Jersey [Mr. McDermott], and that is with refer- 
 ence to the question as to whether the clause providing that the President may adjourn Congress from 
 time to time is limited in its operations to a special or extraordinary or Presidential session, so called. 
 If so limited, beyond any question it would create a constitutional distinction between the two sessions, 
 which undoubtedly would settle the question pending. 
 
 "Since the adjournment last evening 1 have taken occasion to examine Madison's Journal of the 
 Constitutional Convention, and the Federalist, upon that precise point, for the purpose of ascertaining 
 what light, if any, might be derived from that source, and I should be glad to give the committee the 
 benefit of the investigation. 
 
 "I find in the report of the committee on detail, made on August 6, 1787, that the clause in question 
 appears in Article X, section 2, which reads as follows: 
 
 "'Sec. 2. He shall from time to time give information to the Legislature of the state of the Union. 
 He may recommend to their consideration such measures as he shall judge necessary and expedient. 
 He may convene them on extraordinary occasions. In cases of disagreement between the two Houses 
 with regard to the time of adjournment he may adjourn them to such time as he thinks proper. He 
 shall take care that the laws of the United States be duly and faithfully executed. He shall commission 
 all the officers of the United States, and shall appoint officers in all cases not otherwise provided for by 
 this Constitution. He shall receive ambassadors, and may correspond with the supreme executive of 
 the several States. He shall have power to grant reprieves and pardons, but his pardons shall not be 
 pleadable in bar of an impeachment. He shall be Commander in Chief of the Army and Navy of the 
 United States and of the militia of the several States. 
 
 "'He shall, at stated times, receive for his services a compensation, which shall neither be increased 
 nor diminished during his continuance in office. Before he shall enter on the duties of his Department 
 he shall take the following oath or affirmation: "I, , solemnly swear (or affirm) that I will faith- 
 fully execute the office of President of the United States of America." He shall be removed from his
 
 § 13 THE MKETING OF CONGRESS. 9 
 
 Congress, the Secretary who acts as President shall convene Congress in 
 extraordinary session. 
 
 office on impeachment by the House of Representatives, and conviction in the Supreme Court of treason, 
 bribery, or corruption. In case of his removal, as aforesaid, death, resignation, or disability to discharge 
 the powers and duties of his office, the President of the Senate shall exercise those powers and duties 
 until another President of the United States be chosen, or until the disability of the President be removed 
 (Journal of Constitutional Convention (Madison). Scott, Forseman & Co., editors, vol. 11, p. 457.)' 
 
 " This is the first time the clause appears in the proceedings of the convention. It appears in a 
 section defining the powers and duties of the President with the clause authorizing the convening of 
 Congress in an extraordinary session, where they would naturally be expected to appear. It will be 
 observed that the two propositions are found in separate and distinct sentences. One sentence reads: 
 
 "'He may convene them on extraordinar\' occasions.' 
 
 "And the other — 
 
 "'In case of disagreement between the two Houses with r^;ard to the time of adjournment, he may 
 adjourn them to such time as he thinks proper.' 
 
 "In this section the argument of juxtaposition as a reason why the clause in question is a limitation 
 upon the so-called 'Presidential session' clearly fails. 
 
 " In the report on the committee on style, which had no power to change any substantive provision 
 of the Constitution and only had the power to perfect the language and arrangement, made on September 
 12, 1787, these two independent sentences are grouped together, making two clauses of one sentence in 
 Article II, section 3 (ibid., 709), reading as follows: 
 
 " 'He may. on extraordinary occasions, convene both Houses, or either of them, and in case of disa- 
 greement between them with respect to the time of adjournment, he may adjourn them to such time as 
 he shall think proper, etc' — 
 
 ' ' transposing the first sentence and slightly varying the second. Article X, section 2, down to and includ- 
 ing the clause 'He shall commission all officers of the United States,' in the report of the committee on 
 detail, appears in the report of the committee on style, in Article II, as section 3. The substance of the 
 remainder of section 2, considerably transposed and with considerable change of verbiage, is found in 
 sections 1 and 2 of Article II, in the report of the committee on style. 
 
 "Under these conditions the argument of juxtaposition seems entitled to but little weight. There 
 is nothing said, so far as I can find in the debates in the convention, upon the construction of this clause — 
 simply the report of the committee on detail, and later on the report of the committee on style. 
 
 "In the Federalist, in No. 68, written by Mr. Alexander Hamilton, who was also a member of the 
 committee on style, reporting the Constitution in the language in which it now stands, this clause is 
 referred to and construed. This is the great paper in which Mr. Hamilton is defining the powers and 
 the limitations upon the power of the President of the United States, and with reference to this specific 
 point he says: 
 
 " ' Fourthly. The President can only adjourn the National Legislature in the single case of disagree- 
 ment about the time of the adjournment,' 
 
 " I ask the Chair to note this. If this clause is limited to a special session, it is a very important and 
 significant limitation. Mr. Hamilton is undertaking to define in this paper the limitations upon the 
 Presidential power, and he fails to cite this important and significant limitation. Therefore it is a fail 
 inference that in his judgment — he having made the report or taken a part in the report of the committee 
 on style, and responsible for the language as it now stands — it was not limited in its operation to a special 
 session, but applied generally. His first illustration of an analogous power is that 'the British monarch 
 may prorogue or even dissolve Parliament.' This illustration, of course, can not be confined to special 
 sessions, but applies to all sessions. Further, by way of illustration, he says: 
 
 "'The governor of New York may also prorogue the legislature of this State for a limited time; a 
 power which, in certain situations, may be employed to very important purposes, — 
 
 "Applicable, apparently, to every session. 
 
 "Of course it is not conclusive, but it is significant, and if the Chair please, I point to the fact that 
 whUe Hamilton elaborates the proposition, he in no sense intimates that it is confined in its application 
 to a special session of Congress. If it is true that this clause is confined to special sessions, it is a most 
 important limitation, and .should have been emphasized rather than omitted by Hamilton. To hold that 
 Hamilton omitted it is to impeach either his intelligence or candor, neither of which can be done 
 successfully."
 
 10 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 13 
 
 The act of January 19, 1886/ provides that "in case of removal, death, resig- 
 nation, or inability of both the President and Vice-President of the United States," 
 then the Secretary of State, or if there be none, or in case of his removal, death, 
 resignation, or inability, then the Secretary of the Treasury, and so on to the Sec- 
 retary of War, the Attornej^-General, the Postmaster-General, the Secretaries of the 
 Navy and Interior, shall act as President if they be eligible and not under impeach- 
 ment; and it is further provided — 
 
 That whenever the powers and duties of the office of President of the United States shall devolve 
 upon any of the persons named herein, if Congress be not then in session, or if it would not meet in 
 accordance with law within twenty days thereafter, it shall be the duty of the person upon whom said 
 powers and duties shall devolve to issue a proclamation convening Congress in extraordinary session, 
 giving twenty days' notice of the time of meeting. 
 
 ' 24 Stat. L., p. 1.
 
 CHAPTER IL* 
 
 THE CLERK'S ROLL OF THE lAIEMBERS-ELECT. 
 
 1. The statutes governing the making of the roll. Sections 14, 15. 
 
 2. Early usage as to examination of credentials. Sections 16-18. 
 
 3. Corrections of the Clerk's roll by the House. Sections 19-25. 
 
 4. Enrolling names of Members deceased, resigned, or disqualified. Sections 26-29.' 
 
 5. Enrolling on the strength of irregular credentials. Sections 30-39.- 
 
 6. Enrolling on the strength of conflicting or imperfect credentials. Sections 40-60. 
 
 7. Enrollment of Delegates. Sections 61, 62. 
 
 8. Withdrawal of credentials. Section G3. 
 
 14. The law of 1863 makes it the duty of the Clerk of the preceding 
 House to make a roll of the Representatives-elect whose credentials show 
 them regularly elected. — Section 31 of the Revised Statutes, reenacting legisla- 
 tion of March 3, 1863/ and February 21, 1867, provides: 
 
 Before the first meeting of each Congress the Clerk of the next preceding House of Representatives 
 shall make a roll of the Representatives-elect, and place thereon the names of those persons, and of such 
 persons only, whose credentials ■* show that they were regularly elected in accordance with the laws of 
 their States, respectively, or the laws of the United States. 
 
 15. The duty of making up the roll of Members-elect, in event the 
 Clerk can not act, devolves on the Sergeant-at-Arms, atid next on the Door- 
 keeper. — Section 32 of the Revised Statutes, reenacting the law of February 21, 
 1867 (14 Stat. L., p. 397) provides: 
 
 In the case of a vacancy in the office of Clerk of the House of Representatives, or of the absence of 
 inability of the Clerk to discharge the duties imposed on him by law or custom relative to the prepara- 
 tion of the roll of Representatives or the organization of the House, those duties shall devolve on the 
 Sergeant-at-Arms of the next preceding House of Representatives. 
 
 * See Volume VI, Chapter CL. 
 
 ' Clerk declines to enroll when bearer of credentials is not of required age. (Sec. 418 of this volume.) 
 
 ^See sections 328, 366, and 376 of this volume for other cases of informal credentials, and sections 
 317, 388, 522, and 523 of this volume for cases wherein the Clerk declined to enroll because of election 
 in excess of apportionment or doubts as to legal time of election. 
 
 3 The act of 1863 (12 Stat. L. , p. 804) was in substantially the present form. The act of 1867 (14 Stat. 
 L., p. 397) made temporary provisions relating to the States lately in secession. 
 
 •* In 1877 a bill was introduced to prescribe the form of credentials and directing the manner in 
 which the roll should be made up. But it was not reported from the committee to which it was referred. 
 (First session Forty-fifth Congress, Record, p. 253; Journal, p. 165.) 
 
 11
 
 12 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 16 
 
 Sec. 33. In case of vacancies in the offices of both the Clerk and the Sergeant-at-Arms, or the absence 
 or inability of both to act, the duties of the Clerk relative to the preparation of the roll of the House or 
 Representatives or the organization of the House shall be performed by the Doorkeeper of the next 
 preceding House of Representatives. 
 
 16. In the early years of the House the credentials were examined by 
 the Committee on Elections; but this practice fell into disuse. — On April 
 18, 1789/ a report was submitted from the Committee on Elections that the com- 
 mittee had, according; to order, examined the certificates and other credentials of 
 the Members returned to serve in this House, and had agreed to a report thereupon; 
 which was twice read and agreed to by the House. 
 
 The report stated: 
 
 It appears to your committee that the credentials of the following Members are sufficient to entitle 
 them to take their seats in this House. [The names follow.] 
 
 On October 28, 1791,- at the opening of the Second Congress, the procedure was 
 the same. 
 
 17. On February 19, 1838,^ Mr. John Quincy Adams, of Massachusetts, pro- 
 posed the following resolution: 
 
 Resolved, That at the commencement of the first session of every Congress of the United States, every 
 person claiming a seat in the House of Representatives shall, before taking his seat, furnish the Clerk 
 of the House the credentials authenticating his election as a Member of the House; and, in calling over 
 the roll of Members appearing to take their seats, the Clerk of the preceding House shall not include in 
 the call any person who appears without producing his credential. 
 
 Debate arising over this resolution, its consideration was deferred, and it was 
 not acted on. 
 
 18. On January 28, 1839, Mr. John Quincy Adams, of Massachusetts, pre- 
 sented a resolution that every Member of the House ought, before taking Ills seat, 
 to produce at the Clerk's table or deposit in the Clerk's office, the credentials by 
 virtue of wliich he claims his seat. Mr. Adams, in presenting his resolution, 
 exjjlained that he had offered it in consequence of the disuse of a practice wliich 
 formerly existed, and wliich he believed to be the practice of every other delibera- 
 tive body. This practice had been adopted at the beginning of the Government, 
 and had been continued until the last eight or ten years. Since then every gentle- 
 man had come and taken his seat without presenting any evidence of his right to 
 do so. Mr. Adams's resolution was not acted on.* 
 
 About this period the journals show a discontinuance of the old practice of the 
 Committee on Elections reporting on the Members who have presented proper 
 credentials. 
 
 19. The House reserves to itself the right to correct the Clerk's roll of 
 Members-elect by striking off or adding to. 
 
 On July 4, 1861, '^ at the time of the organization of the House, and while the 
 
 ' First session First Congress, Journal, p. 16. (Gales & Seaton, ed.) 
 
 - First session Second Congress, Journal, pp. 443, 453, 455. (Gales & Seaton, ed.) 
 
 ' Second session Twenty-liith Congress, Journal, p. 482: Globe, p. 190. 
 
 ^ Third session Twenty-fifth Congress, Journal, p. 395; Globe, p. 143. 
 
 'First session Thirty-seventh Congress, Journal, p. 13, 14; Globe, pp. 7-9.
 
 § 20 THE clerk's roll OF THE MEMBERS-ELECT. 13 
 
 oath was being administered to Members-elect, Mr. Thaddeus Stevens, of Penn- 
 sylvania, offered the following: 
 
 Hesolved, That the Clerk of the House be diiected to insert the name of John M. Butler upon the 
 roll of Members, as the Representative from the First Congressional district of Pennsylvania, and that 
 William E. Lehman shall be entitled to contest the seat of the said John M. Butler by giving him the 
 required notice at any time within three months. 
 
 Mr. Lehman had been placed on the roll by the Clerk and had voted for 
 Speaker. The Clerk explained to the House that he had placed his name on the 
 roll because the governor of Pennsylvania had included him with the other Mem- 
 bers from Permsylvania in the proclamation which the law of the State required 
 him to make of the persons returned as elected. This proclamation had been 
 presented b\- Mr. Lehman as his credentials, and the Clerk had considered it his 
 duty to be governed by this proclamation, rather than bj' returns of election judges 
 which showed the election of Mr. Butler. 
 
 ^Ir. Stevens contended that the proclamation of the governor was of no binding 
 force, since the law of the State required the governor to proclaim the result of 
 the returns, and transmit the returns to the House. The proclamation was not in 
 accordance with the returns filed, and no returns showing the election of Mr. Lehman 
 had been sent to the House, nor had the proclamation. Returns showing Mr. Butler 
 elected were presented. 
 
 On the other hand, it was urged the returns had been fraudulently made up, 
 and that the governor in his proclamation had taken cognizance of tliis. 
 
 After debate the resolution was laid on the table, yeas 91, naj'^s 48, and the oath 
 was administered to Mr. Lehman. 
 
 20. On July 4, 18(51,' during the organization of the House, and after the 
 oath had been administered to the Members, the name of Samuel G. Daily, as 
 Delegate from the Territory of Nebraska, was called. 
 
 On motion the question of administering the oath to Mr. Daity was postponed 
 until after the completion of the organization of the House. 
 
 On July 5 Mr. William A. Richardson, of Illinois, moved that the name of Mr. 
 Daily be stricken from the roll, and that the name of J. Sterling Morton be inserted 
 in heu thereof, and that said Morton be sworn in as such delegate. 
 
 It appeared from the debate that on November 2, 1860, the governor of Nebraska 
 issued a certificate to Mr. Morton, the votes haA^ing been canvassed according to 
 law by the governor, chief justice, and district attorney. Later, on April 29,1860, 
 the governor issued another certificate to Mr. Daily, wherein it was declared that 
 the first certificate was revoked, because of the discovery of fraud wliich had credited 
 to Mr. Morton more votes in one county than he, in fact, received, and the results 
 of which being eliminated showed Mr. Daily to have been elected. It was urged 
 by ilr. Richardson that the governor issued the second certificate without action 
 of the board of canvassers provided by law, and therefore had usurped the authority 
 of the House of Representatives in passing on the election and returns. On the 
 other hand, it was urged that Mr. Daily had received the highest number of votes 
 and had the certificate of the governor. 
 
 ' First session Thirty-seventh Congress, Journal, pp. 35, 36; Globe, pp. 13-16.
 
 14 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 21 
 
 The House, by a vote of yeas 57, nays 75, disagreed to the motion of Mr. Rich- 
 ardson. 
 
 The House then voted that the oath be administered to Mr. Daily. 
 
 21. On December 7, 1863,^ the Clerk of the preceding House called the 
 assembled Members-elect to order, and called the roll of Members by States, as 
 made out by him under the act of March 3, 1863, wliich provided that he should 
 place on the roll the names of "all persons, and of such persons only, whose cre- 
 dentials show that they were regularly elected in accordance with the laws of their 
 States, respectively, or the laws of the United States." 
 
 After the roll had been called, the Clerk aimounced that other gentlemen had 
 filed credentials which, in his opinion, did not meet the requirements of the law of 
 1863. The Clerk then read the credentials of five Members from Maryland, and the 
 same having been read, Mr. Henry L. Dawes, of Massachusetts, oifered the following: 
 
 Resolved, That the names of John A. J. Creswell, Edwin H. Webster, Henry Winter Davis, Francis 
 Thomas, and Benjamin G. Harris be placed on the roll of the House of Representatives from Maryland. 
 
 A motion that this resolution be laid on the table having been decided in the 
 negative, yeas 74, nays 94, the resolution was then agreed to. 
 
 Sunilarly the credentials of certain Missouri Members whose names had not been 
 put on the roll by the Clerk were read, and a resolution that their names be put on 
 the roll was offered. 
 
 Mr. William S. Holman, of Indiana, made the point of order that it was not 
 in order thus to instruct the Clerk, but the Clerk overruled the point. 
 
 Then credentials were read of the Members from Oregon, Kansas, and West Vir- 
 ginia, and resolutions were offered and agreed to directing that their names, respec- 
 tively, be placed on the roll. 
 
 The credentials of certain Members-elect from Virginia not being satisfactory to 
 the House, a resolution directing their names to be placed on the roll was laid on 
 the table, yeas 100, nays 73. 
 
 22. A motion to proceed to the election of Speaker has been held to 
 be of higher privilege than a motion to correct the Clerk's roll. 
 
 In one or two cases it has been held that the Clerk may not enter- 
 tain a motion to correct the roll which he makes up under the law. 
 
 Instance wherein, during the organization, the Clerk of the preced- 
 ing House declined to entertain an appeal from his decision. 
 
 On October 15, 1877,' after the Clerk had called the roll of Members, Mr. Fer- 
 nando Wood, of New York, as soon as the Clerk had aimounced that a quorum was 
 present, moved to proceed to the election of a Speaker viva voce, and demanded 
 the previous question thereon. 
 
 Mr. Eugene Hale, of Maine, as a question of privilege, submitted the following 
 preamble and resolution: 
 
 Whereas James B. Belford presents the only certificate of election as a Representative in the Forty- 
 fifth Congress given by the duly constituted authorities of the State of Colorado; and 
 
 Whereas the Clerk of the House of Representatives of the Forty-fourth Congress has set aside said 
 
 'First session Thirty-eighth Congress, Journal, pp. 6-8; Globe, pp. 4-6. 
 -First session Forty-fifth Congress, Journal, p. 10; Record, p. 53.
 
 § 23 THE clerk's boll of the membees-elect. 15 
 
 legal certificate presented by said James B. Belford, thereby without law assuming rights and 
 authority which only belong to the House: Therefore, 
 
 Resolved, That the name of Thomas M. Patterson be stricken from the roll of this House as Represen- 
 tative in the Forty-fifth Congress from the State of Colorado, and that the name of James B. Belford 
 be placed upon said roll as a Representative in said Congress. 
 
 Mr. Samuel S. Cox, of New York, made the point of order that the resolution 
 was not in order, the Clerk having absolute control over the roll of the House. 
 
 The Clerk ' sustaiaed the point of order, and stated the question to be on 
 seconding the demand for the previous question. 
 
 Mr. Hale appealed from the decision of the Clerk. 
 
 The Clerk declined to entertain the appeal, on the ground that it was not com- 
 petent for the Representatives-elect to instruct the Clerk in the performance of 
 a duty imposed upon him bj- law, and for the further reason that a higher ques- 
 tion of privilege was pending on which the previous question had been demanded.^ 
 
 Mr. Wood's motion was then agreed to. 
 
 23. On March 4. 1869,= at the time of the organization of the House, after the 
 roll of Members-elect had been called and the Clerk had announced that a quorum 
 was present, IMr. George W. Woodward, of Pennsylvania, offered this resolution: 
 
 Resolved, That the roll of Members of the Forty-first Congress be amended by the addition of the 
 name of Henry D. Foster, as the Representative of the Twenty-first Congressional district of Pennsyl- 
 vania, and that said Foster be called and admitted as the sitting Member prima facie entitled to represent 
 said district. 
 
 Mr. Eliliu B. Washburne, of Illinois, claiming the floor on a question of privi- 
 lege, moved that the House do now proceed to the election of a Speaker. 
 
 The Clerk * said that the gentleman from Illinois had risen to a question of 
 privilege which had precedence of the resolution of the gentleman from Pennsyl- 
 vania, and therefore the question before the House was on the motion to proceed 
 to the election of a Speaker. 
 
 24. On December -2. 1873. at the time of the organization of the House, after 
 the roll of Members-elect had been called and the presence of a quorum had been 
 announced, Mr. Samuel S. Cox, of New York, announced his wish to make the 
 motion that the name of John E. Neff be placed on the roll as Representative-elect 
 from the Ninth Congressional district of Indiana. 
 
 The Clerk said: 
 
 The Clerk thinks it would not be in order. He has always declined to receive such a motion at 
 this stage * « *. The Clerk must decline to entertain the motion. 
 
 25. The Clerk's roll may be corrected during organization by reference 
 
 to the credentials.— On December 5, 1881, at the time of the organization of 
 the House, while the roll of Members-elect was being called, an error appeared in 
 the Clerk's roll, whereby, instead of the name of Mr. William W. Grout, Member- 
 
 ■ George M. Adams, of Kentucky, Clerk. 
 
 2 For similar cases, see Congressional Globe, first session Forty-first Congress, p. 3; Record, first session 
 Forty-third Congress, p. 5. Motions to amend the roll were formerly quite conmion, first session 
 Thirty-eighth Congress, Journal, p. 7. 
 
 'First session Forty-first Congress, Globe, p. 3. 
 
 ■* Edward McPherson, of Pennsylvania, Clerk.
 
 16 PEECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 26 
 
 elect of Vermont, the name of the governor of that State was called, an error havmg 
 been made in making up the roll from the credentials, whereby the name of the 
 signer of the credentials was substituted for that of the bearer. This error, being 
 corrected by reference to the credential, Mr. Grout's name was called, and the 
 organization of the House proceeded.' 
 
 26. The Clerk takes notice of the deaths or resignations of Members- 
 elect and informs the House thereof at the time of organization. — At the 
 beginning of each Congress, at the time of the organization, the Clerk submits to the 
 House a table of the changes in membership since the election — that is, he presents 
 the names of those who were placed on his roll, but have been stricken off because 
 of death or resignation. This seems to show that the Clerk may take cognizance of 
 death and resignation in making up his roll.^ 
 
 27. On December 3, 1883,* at the time of the organization of the House, 
 the Clerk,^ when he had called the roll as far as the Seventh district of Virginia, 
 announced that John Paul, who had been elected to represent that district, had 
 resigned his ofBce, the resignation to take eflfect September 5, 1883. Therefore the 
 name of Mr. Paul was not called. 
 
 28. On December 3, ISSS,'' at the time of the organization of the House, 
 after the Clerk * had completed the calling of the roll by States as far as North Caro- 
 lina, he announced that he had information that Mr. Walter R. Pool, who was elected 
 at the November election in 1882 to represent the First district of North Carolina, 
 died on August 25, 1883. No certificate of the election of a successor had been filed 
 with the Clerk. Therefore the name of Mr. Pool was not called. 
 
 29. An instance wherein the Clerk omitted from the roll the name of 
 a disqualified Member-elect. — On March 4, 1871," at the organization of the 
 House, after the roll of Members-elect had been called, the Clerk said : 
 
 Mr. Sion H. Rogers, one of the Representatives from North Carolina, requested the Clerk this morning 
 that when his name was reached on the call it should be omitted. 
 
 Mr. Rogers's name had been omitted, not being called with the other North 
 Carolina Members-elect. No explanation was given at this time for this action. 
 
 Mr. Rogers's name remained off the roll until May 23, 1872,' when he was sworn 
 in. It then appeared that he had deferred qualification until the passage of the law 
 removing political disabiUties. 
 
 30. Where it is not specifically stated that the bearer is elected in 
 accordance with the law of the State and the United States, the creden- 
 tials may be honored by the House, if not by the Clerk. — On December 7, 
 1869,* Mr. Halbert E. Pame, of Wisconsm, from the Committee of Elections, made 
 
 ' First session Forty-seventh Congress, Record, p. 7. 
 
 2 See instance at the first of any recent Congress, first session Fifty-second Congress, Journal, p. 6. 
 
 ^ First session Forty-eighth Congress, Record, p. 4. 
 
 ' Edward McPherson, of Pennsylvania, Clerk. 
 
 ' First session Forty-eighth Congress, Record, pp. 3, 4. 
 
 ' First session Forty-second Congress, Record, p. 6. 
 
 ' Second session Forty-second Congress, Journal, p. 936; Globe, p. 3783. 
 
 * Second session Forty-first Congress, Globe, p. 22.
 
 § 31 THE clerk's roll OF THE MEMBERS-ELEOT. 17 
 
 an oral report on the credentials of the Members from the State of Alabama. He 
 said that the credentials were not in form sufficient to justify the Clerk of the House 
 in putting their names on the roll had they appeared at the begiiming of the Congress, 
 because the credentials did not say that they were elected in pursuance of either 
 the laws of Alabama or of the United States. Yet the credentials were in form 
 sufficient to satisfy the Committee, and he thought the House also. Accordingly 
 he moved that the gentlemen be sworn. The motion was agreed to and the oath 
 was administered. 
 
 31. In 1871 a certificate from Arkansas, which bore on its face evi- 
 dence that it was not issued within the time required by law, and con- 
 cerning the proper execution of which there was doubt, was rejected. — 
 On March 4, 1871/ at the time of the organization of the House, after the calling of 
 the roll of Members-elect, the Clerk ^ said: 
 
 The certificate from the Third district of Arkansas bears upon its face evidence that it was not issued 
 within the time required by law, nor within two months thereafter; besides, there is serious doubt 
 whether the officer who executed it had at that time the right to do so. The circumstances surrounding 
 the issue of this certificate are so suspicious that the Clerk feels compelled to reject it. 
 
 32. In 1871 the Clerk accepted the credentials from Mississippi, 
 which, though irregular in form, met all the substantial requirements 
 of the military reconstruction acts. — On March 4, 1871,^ at the time of the 
 organization of the House, the Clerk,- after he had called the roll of Members-elect, 
 said: 
 
 A question has been raised before the Clerk upon the credentials from Mississippi. While being 
 peculiar in form, owing to the fact that the reorganization of the State was effected under the military- 
 reconstruction acts, they appear to him to meet all the substantial requirements of the law, and are 
 therefore accepted by him. 
 
 33. In 1871 the Clerk enrolled the Tennessee delegation, although 
 the credentials were at marked variance with the usual form and there 
 appeared a question as to the time of holding the election. — On March 4, 
 1871,* at the time of the organization of the House, the Clerk,' after he had called 
 the roll of Members-elect, said: 
 
 Regarding the certificates from Tennessee, the Clerk desires to state that they differ essentially 
 from the credentials issued to the Representatives from that State elected to the Forty-first Congress; 
 that, strictly judged, they are both vague and evasive and that the changes made are so marked and 
 special as to create a belief that they were purposely made to produce uncertainty. The Clerk has been 
 in doubt as to his dutv concerning them, but has finally concluded to give them this time the benefit 
 of the doubt and accept them. The point which has been argued, that the election was not held on the 
 day fixed by the laws of Tennessee, involves a construction of the constitution and of several of the 
 laws of that State; and the Clerk has, under the circumstances, concluded not to rule upon it. 
 
 The Tennessee Members had been called on the roll. 
 
 ' First session Forty-second Congress, Globe, p. 6. 
 - Edward McPherson, of Pennsylvania, Clerk. 
 ^ First session Forty-second Congress, Globe, p. .5. 
 ^ First session Forty-second Congress, Globe, pp. 5, U. 
 
 5994— VOL 1—07 2
 
 18 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 34 
 
 34. A credential from Indiana not meeting the requirements of the 
 law in 1873, neither claimant to the seat was enrolled. — On December 2, 
 1S73,' at the organization of the House, after the calling of the roll of Members-elect, 
 the Clerk ' said : 
 
 In Indiana the paper issued by the governor respecting the Ninth district can not be accepted as a 
 credential within the meaning of the law, and neither of the claimants is enrolled. 
 
 35. Conflicting credentials, signed by different persons as governor, 
 being presented from Louisiana in 1873, the Clerk declined to enroll the 
 bearers of either credentials. — On December 1, 1873,' at the time of the organi- 
 zation of the House, after the roll of Members-elect had been called, the Clerk ^ 
 said: 
 
 In Louisiana there are two unchallenged certificates from the Third and Fifth districts only. In 
 the remaining three districts and the Representatives at large two conflicting sets of papers have been 
 presented, each certifying the election of a different person and each purporting to have been issued 
 by a proper State officer. There is no substantial difference in form. The one set of papers purports 
 to have been executed on the 4th of December, 1872, and to have been signed by Governor Warmouth, 
 though not transmitted by him to the Clerk's office. They were received, one of them early in March 
 last, another later in that month, and two of them in the latter part of AprU, 1873. The other set of 
 papers purports to have been executed on the 30th of December, 1872, and to have been signed by Act. 
 ing Governor Pinchback, and transmitted by him to the Clerk's office by mail, and received early in 
 January last. The Clerk accordingly enrolls the two unchallenged Members. 
 
 36. The credentials from West Virginia in 1873 showed a doubt as to 
 the true day of election, so the Clerk enrolled only one Member-elect, who 
 was indisputably elected on each day. — On Decemljer 1, 1873,' at the time of 
 the organization of the House, after the roll of Members-elect had been called, the 
 Clerk ' said : 
 
 In West Virginia there is a peculiar complication. There were two elections in 1872 at which 
 Representatives in the Forty-third Congress were voted for — one of them in August, at the time of the 
 adoption of the new State constitution, and the other on the fourth Thursday of October. In the First 
 and Second districts different persons were chosen at these elections; in the Third district the same 
 person was chosen at both. The proclamation and certificates of the governor reciting these various 
 facts have been filed in the Clerk's office. The certificates of election are issued in the alternative, 
 setting forth the due election of these respective parties, provided the time at which they were chosen 
 was the time prescribed by law for holding the election. The Clerk considers these certificates inad- 
 missible for enrolling either of the claimants in the First and Second districts. Assuming that the 
 one or the other of those days was the legal day of election, Mr. Hereford, who was chosen at both, would 
 appear to be entitled to be enrolled, notwithstanding the technical defect in each of his certificates 
 separately considered. He has accordingly been enrolled. 
 
 A fresh series of certificates, dated November 22, 1873, and issued under an act of the legislature of 
 that State dated November 15, 1873, by a new canvassing board specially created for that purpose and 
 intended to supersede the papers issued by the governor under the then existing law, and which cer 
 tify in form the due election of the persons who received a majority of the votes at the October election 
 of 1872, have been presented, but appear to the Clerk to be of doubtful validity, and have not been 
 accepted by him as credentials within the meaning of the law. 
 
 '■ First session Forty-third Congress, Record, p. 5. 
 2 Edward McPherson, of Pennsylvania, Clerk.
 
 § 37 THE clerk's roll of the members-elect. 19 
 
 37. The Arkansas election case of Gunter v. Wilshire in the Forty- 
 third Congress. 
 
 The Clerk declined to enroll a person bearing as credentials a mere 
 abstract of returns, although certified by the governor under seal of the 
 State. 
 
 The House very reluctantly gave prima facie effect to a certified 
 abstract of returns not in the form of credentials as required by law 
 and issued after the time prescribed by law. 
 
 An instance wherein the claimant seated on prima facie showing was 
 unseated after examination of final right. 
 
 On December 1, 1873,* at the organization of the House, the Clerk announced 
 that but two vaUd certificates had been presented from the State of Arkansas. 
 The certLficates of the Members-elect from the First and Third districts were in 
 question, and their names were not on the roll. On December 2 ' the House — 
 
 Resolved, That the credentials and papers in the possession of the Clerk of the House in the cases 
 of the contested elections from the First and Third districts of Arkansas be referred to the Committee 
 on Elections, with instructions to report on the earliest day practicable who of the contesting parties 
 are entitled to be sworn in as sitting Members of the House. 
 
 On February 9, 1874,^ Mr. C. R. Thomas, of Xorth Carolina, from the Com- 
 mittee on Elections, submitted the report on the prima facie right. The report 
 first describes the papers presented as evidence — 
 
 1. An "abstract and certificate of the secretarj- of state" showing 12,522 votes cast for W. W. Wil- 
 shire, 11,961 cast for Thos. M. Gunter, 407 for Thos. M. Gunther, and 1,127 scattering. This abstract 
 is accompanied by a certificate of the secretary of state of Arkansas, dated January 13, 1873, that "the 
 above abstract is a true copy of the original now in my office, and exhibits a true statement of the votes 
 cast for Congressman, etc., * * * according to the returns in my office; and I also certify that the 
 same was cast up and arranged by me in the presence of Acting Governor O. A. Hadley within the 
 time and in the manner prescribed by statute." Also, on November 20, 1873, the secretary of state 
 certified to the returns of an additional county received after the first certificate was made. The 
 belated returns increased the plurality for Mr. Wilshire. 
 
 2. A proclamation, dated Februarj' 18, 1873, signed by Elisha Baxter, governor, and duly counter- 
 signed by the secretary of state, under seal, proclaiming the result. 
 
 3. A certificate of election issued by Governor Baxter, gi\"ing the same abstract of votes as given 
 in the proclamation, with footnotes, and in form as follows: 
 
 ' First session Forty-third Congress, Record, p. 5. 
 
 * Journal, p. 18; Record, p. 19. 
 
 'Report House of Representatives, Xo. 92; Smith, p. 131; Rowell's Digest, p. 286.
 
 20 
 
 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 §37 
 
 Abstract of the returns of the election held in the Third Congressional district of the State of Arkansas on the 
 5th day of November, A. D. 1872, for Representative in Congress. 
 
 Counties composing tlie Third Congressional district. 
 
 Benton 
 
 Boone ^ 
 
 Carroll 
 
 Crawford 
 
 Clark 
 
 Franklin 
 
 Johnson 
 
 Little River.. 
 
 Madison 
 
 Marion , 
 
 Montgomery ' 
 
 Newton ' 
 
 Pulaski* 
 
 Perry 
 
 Pope 
 
 Pike 
 
 Polk 
 
 Sehastian 
 
 Sevier. 
 
 Washington < 
 
 Yell 
 
 Saber'....... 
 
 
 
 Total. 
 
 255 
 188 
 272 
 932 
 
 1,317 
 129 
 119 
 506 
 434 
 140 
 177 
 278 
 
 3,160 
 168 
 521 
 226 
 120 
 
 1,017 
 264 
 702 
 536 
 784 
 
 SO 
 =1 . 
 
 ass 
 
 in n 
 
 746 
 330 
 590 
 806 
 269 
 76 
 276 
 .167 
 684 
 
 12,644 
 
 1,621 
 81 
 310 
 125 
 342 
 578 
 425 
 1,218 
 1,011 
 276 
 
 
 So 
 
 11,499 
 
 12 
 
 407 
 
 184 
 
 591 
 
 ' Boone County has not been made a part of the Third Congressional district by any act of the legislature. 
 
 2 The votes given to "Gunther" from Montgomery and Newton counties were probably intended for Thomas M. Gunter. 
 
 » The scattering vote in Pulaski County given to "Wilshire," "Guntee," "S. M. Gunter," "T. M. Guntee," "Thos. M. 
 Guntee," ' ' T. Ros Gunter," and ' ' Thos. M. Crenter" is a literal copy of the clerk's returns. 
 
 * A certiflcateofthoclerk is appended to the returns from Washington County, questioningthe validity of the election in 
 Richland Township. If this objection is allowed the vote will stand: For Wilshire, 686, and Gunter, 1,125. 
 
 ' Saber County has not been made a part of the Third Congressional district by any act of the legislature 
 
 Scattered votes polled for Guntee, S. M. Gunter, T M. Guntee, Thos. M. Guntee, T. Ros Gunter, and Thomas M. Crenter 
 i n Pulaski County, 1,456. 
 
 There are no returns from the clerk of Scott County. 
 
 "State op Arkansas, Executive Office: 
 
 " Whereas the acting governor failed to issue a certificate of election to the person who received the high- 
 est number of votes for Representative in Congress from the Third Congressional district of Arkansas at 
 the election held in said district on the 5th day of November, A. D. 1872; and whereas on the 14th day 
 of February, A. D. 1873, the secretary of state, in my presence, did cast up the votes polled for said Repre- 
 sentative at said election from the returns on file in his office: Now, therefore, I, Elisha Baxter, governor 
 of the State of Arkansas, do certify that the foregoing statement, with the explanatory notes, is a full, 
 true, and correct exhibit of the votes polled for Representative from the Third Congressional district of 
 Arkansas at the election held in said district on the 5th day of November, A. D. 1872, as appears from the 
 returns of said election on file and certificates of clerks deposited in the office of secretary of state. 
 
 " In testimony whereof I have hereunto set my hand and caused the seal of the State to be affixed, 
 at Little Rock, on this 18th day of February, A. D. 1873. 
 
 [l. 8.] "ELISHA BAXTER, Governor. 
 
 " By the governor; 
 
 "J. M. JohnsojV, Secretary of State."
 
 § 37 THE clerk's roll of the members-elect. 21 
 
 The law of Arkansas provided: 
 
 " Sec. 50. It shall be the duty of the secretarj- of state, in the presence of the governor, within thirty 
 daj-s after the time herein allowed to make returns of elections to the clerks of the county courts, or 
 sooner, if all the returns shall have been received, to cast up and arrange the votes from the several coun- 
 ties, or such of them as have made returns, for such persons voted for as Members of Congress; and the 
 governor shall immediately thereafter issue his proclamation, declaring the person having the highest num- 
 ber of votes to be duly elected to represent the State in the House of Representatives of the Congress of the 
 United States, and shall grant a certificate thereof , under the seal of the State, to the -person so elected." 
 
 The law of Congress provided : 
 
 "That before the first meetingof the next Congress, and of every subsequent Congress, theClerkof the 
 next preceding House of Representatives shall make a roll of the Representatives elect and place thereon 
 the names of persons claiming seats as Representatives elect from States which were represented in the 
 next preceding Congress, and of such persons only, and whose credentials show that they were regularlv 
 elected in accordance with the laws of their States, respectively, or the laws of the United States." 
 
 The most usual kind of credential is a certificate of the governor of a State, and such kind is required 
 by the law of Arkansas. No particular form of one has heretofore been considered necessary by the 
 House; and while such certificate, when it showed that the person named therein was regularly elected, 
 etc., has always been admitted and held to be competent and satisfactory evidence of prima facie right 
 to a seat, the House has frequently decided that the want of it from any reason would not impair or 
 prejudice such prima facie right of a Member elect, but only remit him to other evidence to establish it. 
 
 Do the credentials and papers referred to the committee liy the House resolution, any one or all of 
 them, show that either Mr. Wilshire or Mr. Gunter was regularly elected in accordance with the laws of 
 Arkansas, or do they establish the prima facie right of either to a seat? 
 
 In the opinion of the committee they furnish satisfactory e\idence to establish the prima facie 
 right of W. W. Wilshire to his seat. In their opinion the certificate of Governor Baxter is in itself suffi- 
 cient in form and substance and legal intendment to establish such right of Mr. Wilshire. It indicates, 
 or shows, that W. W. Wilshire received 12,644 votes, being a majority of 1,145 votes for Mr. Wilshire 
 by the "abstract of the returns of the election held in the Third Congressional district of the State of 
 Arkansas on the 5th day of November, 1872, for Representative in Congress;" and assuming that, as 
 matter of law, the votes of the counties of Boone and Sarber should not have been counted or "arranged 
 and cast up," because these counties had "not been made parts of the Third Congressional district by 
 any act of the legislature," then the said certificate shows that Mr. Wilshire received a majority of 1,195 
 votes. And the certificate of Governor Baxter is to the effect that W. W. Wilshire was "duly elected," 
 and is in accordance with the laws of Arkansas before cited and mentioned. 
 
 The failure, from whatever cause it arose, of the acting governor, O. A. Hadley, in whose presence 
 the secretary of state did cast up and arrange the votes from the several counties, etc., to issue the proc- 
 lamation and grant the certificate — a duty which the laws of the State devolved upon him, and the act 
 of Congress of May 31, 1870, as well (and said act made it a criminal offense in that he neglected or refused 
 to do so) — could not prejudice the right of the people of the Third Congressional district, or of the person 
 who had been chosen by them as Representative to the Forty-third Congress in pursuance of their obli- 
 gation under the national Constitution. Such a failure, in any instance, ought not to be allowed by 
 the Hoiise to hinder, impede, or delay the right of representation of the people of a district, or the right of 
 the person chosen V)y them to a seat pending a contest upon the merits, when ' ' that amount of proof which 
 ordinarily satisfies an unprejudiced mind, beyond reasonable doubt," is produced in a case before it. 
 
 The report goes on to say that section 50 of the Arkansas laws above quoted 
 is directory and that Governor Baxter was required to issue the certificate upon 
 the omission of his predecessor to do so. 
 
 The majority did not conceive that the omission of the words "duly elected" 
 or "other words declaratory of the fact or result would be nonessential, if not 
 surplusage." The report continues: 
 
 A strict adherence to any prescribed or particular form of credential, or to legal rules of evidence 
 on a prima facie case of election, would tend to prejudice the rights of the party claiming to have been 
 elected, and of the people as well, and to prevent the organization of the House.
 
 22 PKECEDEHTS OF THE HOUSE OE KEPEESENTATIVES. § 37 
 
 The case of Giddings v. Clark was referred to. 
 
 The majority of the committee, therefore, reported a resolution giving Mr. 
 Wilshire the prima facie right to the seat, without prejudice to the right of Mr. 
 Gunter to contest. 
 
 Mr. Lucius Q. C. Lamar, of Mississippi, submitted minority views, which say, 
 after citing the law: 
 
 The question then arises, Does W. W. Wilshire present to the committee, and, through the committee, 
 to this House, a certificate in due fonn from the governor of the State, declaring W. W. Wilshire "to 
 be duly elected to represent the State in the House of Representatives of the Congress of the United 
 States?" 
 
 Thei-e can be but one answer to this inquiry. He does not and can not present such a certificate. 
 
 There is a certificate filed by him, issued by the governor of the State of Arkansas, which does not 
 declare or show him to be duly elected, but simply gives a statement of the votes cast, from which state- 
 ment it can not be ascertained who was elected; and a certificate is on file, in every respect identical 
 in substance and letter, which was issued at the same time to his competitor, Thomas M. Gunter. 
 
 It can not, therefore, be said that the governor has issued a certificate of election to Mr. Wilshire. 
 
 After commenting on the action of the Clerk in not putting any name on the 
 roll, the minority say: 
 
 Now, if the construction which a majority of the committee have put upon this resolution of the 
 House is the true one, and it necessarily confines the investigation of the committee to the instrument 
 by which the prima facie right is established, it follows that they should not have extended their 
 inquiries beyond the face of this certificate, nor thrown before this House any information derived from 
 evidence and proofs of a secondary character. Upon their construction C}f the resolution the proper 
 course, in the opinion of the undersigned, would have been to have reported a resolution to the House 
 that no prima facie right to a seat on this floor existed in this case. 
 
 Let us now examine this certificate and see if, from the facts therein stated, the committee had 
 before them data sufficient to determine who, in the absence of any proof to the contrarj', was the per- 
 son duly elected. We have seen that no person was therein declared to have been duly elected. 
 
 The certificate shows that 12,644 votes were cast for W. AV. Wilshire; that 11,499 votes were cast for 
 Thomas M. Gunter, eo nomine, and that 1,456 votes were returned in unspecified proportions for Thomas 
 M. Gunter and Thomas M. Crenter, those for Thomas M. Gunter being returned under different desig- 
 nations, each, however, clearly indicating Thomas M. Gunter as the person voted for. Now, can it be 
 said that there is here any evidence that W. W. Wilshire received a larger number of votes than Thomas 
 M. Gunter? It is clear that if Thomas M. Crenter received only 30 or 40 of these 1,456 votes, Thomas M. 
 Gunter is the person duly elected. It is also equally clear that if Thomas M. Crenter received a larger 
 proportion of the 1,456 votes than Thomas M. Gunter, then W. W. Wilshire is elected. But it is impos- 
 sible to determine from anything on the face of this certificate what was the actual vote cast for Thomas 
 M. Crenter, and therefore equally impossible to determine which candidate received the most votes, 
 W. W. Wilshire or Thomas M. Gunter. This is fatal to the certificate as the credentials of Mr. Wil- 
 shire. To ascertain who was elected, it becomes necessary to refer to other proofs, which opens an 
 inquiry into the merits of the case, and involves an abandonment of the prima facie consideration. 
 The only alternative, therefore, as it seemed to the undersigned, was to enter at once upon the ques- 
 tion of the fact of the election, and if the committee deemed it had not power to do so under the resolu- 
 tion of the House, to ask of the House an enlargement of its powers. 
 
 W'hile the undersigned believe that if the governor's certificate shows no prima facie title to the seat 
 on account of the doubt as to the identity of Thomas il. Crenter, it is the duty of the committee to 
 inquire at once into the merits of the case, and to consider all the proofs bearing upon the merits, includ- 
 ing the depositions as well as the documentary proofs; they are at the same time clearly of the opinion 
 that the documentary proofs, outside of the certificates, show a large majority in favor. of Mr. Gunter.
 
 § 38 THE clerk's roll of the members-elect. 23 
 
 The minority thereupon proceed to argue that the tabulation of the secretary of 
 state was under suspicion, and to show its defective nature proposed to introduce 
 the returns of Pulaski County, saying: 
 
 If it is said that this return from Pulaski County and these proofs just cited can not be considered 
 in a prima facie case, we reply that we have referred to them, not for the purpose of showing any prima 
 facie case for Mr. Gunter, but simply to show that, so far from remedying the defects of Mr. Wilshire's 
 claim, based on the certificate either of the governor or the secretary, they show Mr. Gunter to have 
 been elected. 
 
 We have shown that neither the governor's certificate nor the secretary's casting up, standing by 
 itself, establishes any prima facie right to the contested seat in W. W. Wilshire. If it is said that the 
 two supplement each other, each supplying the deficiency of the other, in answer we reply that dis- 
 crepancies and direct contradictions in these documents are so glaring and numerous as to neutralize the 
 effect and destroy the validity of both as instruments of evidence. 
 
 In accordance with this line of argument the minority proposed a resolution 
 that the case be recommitted with instructions that the committee report on the 
 merits of the case. 
 
 The report was debated at length on February 17.' In this debate it was pointed 
 out that the acting governor had in another Arkansas district certified that " O. P. 
 Snyder was duly elected a Member of Congress," but that in this case the governor 
 did not certif}- that either of the gentlemen was elected. It was also urged by 
 Mr. George W. McCrary, of Iowa, that the footnotes made it a moral certainty 
 that all the scattering votes were intended for Mr. Gunter. 
 
 In reply it was denied that the table made it certain that the scattering votes 
 were intended for Mr. Gunter. The governor had not expressly declared in his 
 certificate who was elected, but by incorporating the table he made it a part of 
 the certificate, and thus showed who was elected. The tact that the words "duly 
 elected" did not appear in the certificate was not fatal. There was no form of 
 certificate prescribed by the House, and the State of Arkansas had not fixed the 
 form. The footings of the table showed who was prima facie entitled to the seat. 
 
 The question being taken on the motion to substitute the minority proposition 
 for the majority, there appeared, yeas 116, nays 117.^ 
 
 The question then recurring on the passage of the resolution recommended by 
 the majority of the committee, there appeared, yeas 118, nays 96. So the resolu- 
 tion was passed. 
 
 A motion to reconsider was made and disposed of on the next day. 
 
 Thereupon Mr. Wilshire appeared and took the oath. 
 
 38. The Arkansas election case of Gunter v. Wilshire — Continued, 
 
 A notice of contest served within thirty days of the issuance of 
 the governor's proclamation was held suflBcient, although the proclama- 
 tion was not issued within the time prescribed by law. 
 
 Original returns of the precincts being lost, the House by testimony 
 proved that certain votes returned as '* scattering " because of misnomer 
 were actually cast for contestant. 
 
 ' Record, pp. 1563-1578. 
 
 ^Journal, pp. 458, 460; Record, pp. 1577, 1601, 1602.
 
 24 PRECEDENTS OF THE HOUSE OF REPEESENTATIVES. § 39 
 
 An instance wherein the House seated a contestant belonging to the 
 minority party. 
 
 On June 3 ' Mr. J. W. Robinson, of Ohio, presented the report on the question 
 of final right to tiie seat. 
 
 At the outset a preliminary question arose, which was disposed of as follows: 
 
 The contestee claims that the contest should be dismissed because the notice of contest was not served 
 on him within thirty days from the day fixed by law for canvassing the returns and determining the 
 result of the election. 
 
 The returns were first canvassed by the secretary of state, in the presence of Governor Hadley, on 
 the 14th of December, 1872, but no proclamation of the result was made, nor any certificate of election 
 issued to anyone, both of which the statute of the State required the governor to do immediately. 
 (See sec. 50.) Afterward Elisha Baxter, being inaugurated governor, having, on the 18th day of Febru- 
 ary, 1873, caused the votes to be again canvassed by the secretary of state in his presence, made proclama- 
 tion of the result, and issued his certificate. 
 
 This proclamation and certificate constitute the only announcement of the determination of the 
 result of the election in that district, and the committee are of the opinion that, in view of all the circum- 
 stances, the service of notice of contest on the 13th of March is sufficient, and overruled the motion to 
 dismiss the contest. 
 
 As to the merits of the case, the committee were unanimous in their conclusions: 
 
 By gome strange mishap the original returns of the precincts where these scattering votes were cast 
 have been lost or destroyed. 
 
 The testimony submitted satisfies the committee that the contestee and the contestant were the only 
 candidates for Congress in that district; that 1,433 of the "scattering" votes referred to in the governor's 
 certificate as being given for "Guntee," "T. M. Guntee," " Thomas M. Guntee," and "T. RossGunter,'' 
 were, in fact, given for Thomas M. Gunter, and should be counted for him; and that 1 vote, referred to as 
 given for "S. M. Guntee," and the 32 given for "Thomas M. Crenter," about which no evidence was 
 offered, are not proven to have been cast for Thomas M. Gunter. The testimony on this point is volu- 
 minous, but entirely satisfactory, and the 1,433 votes are added by the committee to the credit of contest- 
 ant Thomas M. Gunter. So, also, the 407 votes in Montgomery County, and the 184 votes in Newton 
 County, returned for "Gunther," were cast for Thomas M. Gunter; also, the 12 votes in Pulaski County, 
 returned for "Wilshire," were cast for the contestee, and should be credited to them, respectively. 
 
 Correcting the canvass of the returns, as above indicated, the committee find the whole vote returned, 
 and to be counted for contestant, Thomas M. Gunter, to be 13,513, and for the contestee 12,656, giving 
 the contestant a majority of 857 votes. 
 
 In the foregoing schedule no votes are canvassed from Scott County, and but 194 from Johnson 
 County. In both of these counties returns were made which, if counted, would increase the majority 
 of the contestant 1,003. 
 
 In accordance with their conclusions, the committee reported resolutions declar- 
 ing Mr. Wilshire not entitled to the seat, and declaring Mr. Gunter, the contestant, 
 elected. 
 
 On June 16,' the House without debate or division agreed to the resolutions, 
 and Mr. Gunter was sworn in.^ 
 
 39. In 1875 a paper of unusual form was submitted to the House at 
 the time of organization by the Clerk, who had declined to make an en- 
 
 ' Report No. 631; Smith, p. 233. 
 = Journal, pp. 1192, 1193; Record, p. 5046. 
 
 ^ It is worthy of notice that contestant belonged to the party in a minority in the House, and the 
 unseated Member belonged to the majority party.
 
 § 40 THE clerk's roll OF THE MEMBERS-ELECT. 25 
 
 rollment on the strength thereof. — On December 0, 1875/ at the organization 
 of the House, after the calling of the roll of Members-elect, the Clerk ^ said: 
 
 For the Thirty-third district of New York the vacancy on the roll caused by the death of the gentle- 
 man originally returned has not been filled. The action of the State board of canvassers upon the 
 returns of the late election has been received at the Clerk's office, but, being of unusual form, is submitted 
 for action of the House. 
 
 40. In 1875 the Clerk enrolled the names of those bearing creden- 
 tials signed by the recognized de facto governor of Louisiana, although 
 there were other conflicting credentials. — On December G, 1875,* at the time 
 of the organization of the House, after calhng the roll of Members-elect, the Clerk ' 
 said: 
 
 Respecting Louisiana, the Clerk begs to say that he has received two sets of certificates as to the first 
 five districts — one signed by William Pitt Kellogg, as governor of Louisiana; the other signed by John 
 McEnery, as governor of Louisiana. The Kellogg certificates were all received by the Clerk prior to 
 the adjournment of the Forty-third Congress. One of the McEnery certificates was also received dur- 
 ing that session; the others at different dates during the last summer and fall. The two sets of certifi- 
 cates agree in declaring the same persons elected in the First, Second, Third, and Fourth districts. 
 In the Fifth the Kellogg certificate declares Mr. Frank Morey elected; the McEnery certificate declares 
 Mr. William B. Spencer elected. As to the Sixth district, no McEnery certificate has been presented. 
 The Kellogg certificate declares Mr. Charles E. Nash elected. The Clerk has enrolled all the gentle- 
 men bearing the Kellogg certificates as coming from the de facto governor recognized by the last House. 
 
 41. Of three sets of credentials presented from Louisiana in 1877 the 
 Clerk honored those which conformed to the requirements of State law. — 
 On October 15, 1877,^ at the organization of the House, after the roll of Members- 
 elect had been called, the Clerk * said: 
 
 In reference to the State of Louisiana, the Clerk, if there be no objection, will take occasion here 
 to remark that there wore received from the State of Louisiana three different sets of credentials, one 
 set signed by John McEnery, as governor of Louisiana, bearing date December 20, 1876, and declaring 
 certain persons elected from the First, Fourth, and Sixth districts, but silent as to the persons elected 
 from the other districts of said State. Inasmuch, however, as said McEnery was never de facto governor 
 of Louisiana, and never, in point of fact, exercised or performed the functions of that office, it is not 
 deemed necessary to make here any statement concerning the regularity or irregularity of the creden- 
 tials coming from that source. 
 
 Another set of credentials is signed by William Pitt Kellogg, as governor of Louisiana, with the 
 seal of the State attached, all of which not only bear different dates, but also reached the hands of the 
 Clerk at different times and through different channels, and simply declare the persons elected from 
 each of the districts of said State, respectively, except the Second district, as to which no certificate 
 seems to have been issued by said Kellogg in favor of anyone. The law of Louisiana prescribing the 
 character of the credentials by which the elections of its Representatives in Congress shall be authen- 
 ticated and known provides as follows: 
 
 "That as soon as possible after the expiration of the time of making the returns of the election of 
 Representative in Congress, a certificate of the returns of the election f(jr such Representatives shall 
 be entered upon record by the secretary of state, signed by the governor, and a copy thereof, subscribed 
 by said officers, shall be delivered to the persons so elected and another copy transmitted to the House 
 of Representatives of the United States, directed to the Clerk thereof. " 
 
 ' First session Forty-fourth Congress, Record, p. 167. 
 '^ Edward McPhorson, of Pennsylvania, Clerk. 
 'First session Forty-fifth Congress, Record, pp. 51, 52. 
 * George M. Adams, of Kentucky, Clerk.
 
 26 PRECEDENTS OP THE HOUSE OF EEPEESENTATIVES. § 42 
 
 These credentials signed by Governor Kellogg are in no sense a compliance with the requirement 
 of the laws of Louisiana. They do not even purport to be entered on the record by the secretary of 
 state and there signed by the governor, but are, on the contrary, a simple declaration by him that cer- 
 tain persons are elected, without even stating the sources of his information, and no more constitute 
 credentials within the meaning of the laws of Louisiana than a simple statement from the treasurer or 
 other State official would bo. They are not such papers as the law of Louisiana has prescribed as the 
 credentials by which the election of its Representatives in Congress shall be authenticated and known, 
 and could not therefore be recognized by the Clerk as such, whose duty it is, under the law, to place 
 on the roll the names of those, and only those, whose credentials show that they are elected in accord- 
 ance with the laws of their respective States, or the laws of the United States. 
 
 The other set of credentials is signed by Francis P. Nichols, as governor of Louisiana, and Oscar 
 Arroyo, as assistant secretary of state, with the seal of the State attached. All of them bear date Febru- 
 ary 27, 1877, and all of them reached the hands of the Clerk at the same time, and through the channels 
 prescribed by law. They declare the persons elected in each of the districts of Louisiana, respectively, 
 and conflict with the certificate signed Ijy Governor Kellogg in reference to two districts only. These 
 credentials comply, it is thought, with the laws of Louisiana in every respect, and the Clerk has accord- 
 ingly placed on the roll the names of the persons contained in these credentials. 
 
 42. In 1877 the Clerk disregarded credentials issued by the governor 
 of Colorado in due form, holding that they showed the election to have 
 been held on a day unauthorized by law. — On October 15, 1S77,' at the time 
 of the organization of the House, during the call of the roll of Members-elect the 
 Clerk ^ said : 
 
 The Clerk will make a statement with reference to the reasons by which he was controlled in not 
 placing on the roll the names of anyone from the State of Colorado. There has been received by the 
 Clerk a credential, signed by Governor J. L. Routt as governor of that State, with the seal of the State 
 attached, declaring the election of James B. Belford on the 3d day of October, 1870. The law of Con- 
 gress, in terms, declares that the Clerk shall place upon the roll the names of those Representatives, and 
 of those only, whose credentials show that they are elected in accordance with the laws of their States, 
 respectively, or the laws of the United States. The Clerk does not think that there is any law in existence, 
 either in the State of Colorado, or any law of the United States, which authorizes the election of a Repre- 
 sentative of the Forty-fifth Congress on the 3d day of October, 1876. That being the case, and the 
 certificate which Mr. Belford brings showing on its very face that he was elected at a time unauthorized 
 by either the laws of the United States or of his State, the Clerk could see no way in which he could 
 possibly place the name of Mr. Belford on the roll. 
 
 The Clerk read the certificate, as follows : 
 
 " Certificate of election. 
 
 "State of Colorado, State Department, ss: 
 
 "I, John L. Routt, governor of the State of Colorado, hereby certify that at an election held on 
 the 3d day of October, A. D. 1876, James B. Belford received 13,249 votes, being a majority of all the 
 votes cast for Representative in the Forty-fifth Congress of the United States. 
 
 "He is therefore hereby declared duly elected Representative in said Congress. 
 
 "In testimony whereof I have hereunto set my hand and caused the great seal of the State to 
 be affixed at the city of Denver this 6th day of November, A. D. 1876. 
 
 [seal.] "John L. Routt, Governor. 
 
 "By the governor: 
 
 "William M. Clark, Secretary Colorado.^' 
 
 ' First session Forty-fifth Congress, Record, p. 52. 
 ^George M. Adams, of Kentucky, Clerk.
 
 § 43 THE clerk's roll of the members-eleot. 27 
 
 There was also received liy the Clerk a protest, signed Viy John M. Patterson, claiming to be Repre- 
 sentative-elect from the State of Colorado, and accompanying that protest a certified copy of an abstract 
 of the votes cast in each county on the Tuesday after the first Monday in November for Representative 
 to the Forty-fifth Congress from the State of Colorado. This certified copy of the abstract of the votes 
 cast at said election shows, however, that those votes were never canvassed by any board of canvassers 
 and that no certificate was ever issued to anyone declaring the result of said election. 
 
 ^^^lile the Clerk is of the opinion that the laws of the United States and of the State of Colorado 
 required an election to be held in November, at which time Mr. Patterson claims to have been elected, 
 still, inasmuch as Mr. Patterson does not present credentials regular in form, such as the Clerk feels 
 would justify him in placing his name upon the roll, he will submit the credentials of Mr. Belford 
 and Mr. Patterson, such as they are, to the consideration of the House after it shall have organized. 
 
 43. Of two conflicting credentials from Florida in 1877 the Clerk hon- 
 ored the one issued in accordance with a decision of the supreme court of 
 the State. 
 
 A second credential being issued by a governor because of a decision 
 of the State court, but not showing the result called for by the rule of that 
 court, the Clerk honored the first credential. — On October 15, 1877,^ at the 
 time of the organization of the House, while the roll of Members-elect was being 
 called, the Clerk - said : 
 
 From the State of Florida certificates were received, signed by Marcellus L. Steams as governor of 
 Florida, with the seal of the State attached, certifying that William J. Purman was elected in the First 
 and that Horatio Bisbee was elected in the Second district of said State. These certificates bear date, 
 respectively, December 9 and December 14, 1876, and seem to be regular in form. 
 
 But in reference to the First district two certificates were subsequently received, signed by George 
 F. Drew, governor of Florida, with the seal of the State attached and bearing date, respectively, January 
 12 and February 26, 1877. These certificates recite the fact that the canvass of the vote upon which the 
 certificate in favor of Mr. Purman was based had been declared by the supreme court of the State of 
 Florida illegal and that another canvass had been made, in obedience to the order of the supreme court 
 of Florida, which canvass resulted in the election of Robert H. M. Davidson as Representative from said 
 district. 
 
 Under such circumstances the Clerk felt bound to place on the roll from the First district of Florida 
 the name of Robert H. M. Davidson, whose credentials show that he was elected in accordance with the 
 laws of the State of Florida as interpreted by the supreme court of that State. 
 
 In reference to the Second district of Florida, a certificate was also subsequently received, signed by 
 George F. Drew, governor of Florida, with the seal of the State attached, which certificate does not, how- 
 ever, like the subsequent certificate signed by George F. Drew in reference to the First district, show 
 that the second canvass, made in pursuance of the order of the supreme court, resulted in the election of 
 any other person than Mr. Bisbee, to whom Governor Stearns had previously issued a certificate; but, 
 on the contrary, it simply declares that by counting the votes in a certain precinct in Clay County, 
 which the board of State canvassers rejected, and which the supreme court in their opinion say could 
 not be legally counted, then in that event J. J. Finley would be elected. Under such circumstances 
 the Clerk could not see how the subsequent certificate declaring the election of Mr. Finley by doing 
 what the supreme court declared could not be legally done could in any way invalidate the certificate 
 which had previously been issued by Governor Stearns to Mr. Bisbee; and hence, whatever may be the 
 merits of this case in a contest before the House, it seems clear to the Clerk that the prima facie right, 
 with which alone the Clerk can deal, is with Mr. Bisbee, whose name was therefore placed on the roll. 
 
 44. The Mississippi election case of Chalmers v. Manning in the 
 Forty-eighth Congress. 
 
 ' First session Forty-fifth Congress, Record, p. 52. 
 ' George M. Adams, of Kentucky, Clerk.
 
 28 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 44 
 
 No credentials being received, tlie Clerk declined to enroll either 
 claimant, although, one of them filed documents tending to show his elec- 
 tion. 
 
 The House declined to order that the oath be taken by a person who 
 had credentials perfect in form, but who had not presented them to the 
 Clerk and did not desire to assert prima facie right. 
 
 In ordering an investigation as to prima facie right, the House 
 referred, with the credentials, documents showing the state of the returns. 
 
 On December 3, 1883,' at the time of the organization of the House, the Clerk,' 
 after he had called the names of the Members-elect, made a statement respecting 
 the Second district of Mississippi. He stated that James R. Chalmers, who claimed 
 to have been elected there, had filed with him four exhibits in support of his claim 
 to be enrolled as a Member-elect. These exhibits, which the Clerk gave at length, 
 tended to show that the secretary of state of Mississippi, in making on the 18th of 
 November, 1882, the canvass of the vote of the district, had credited to J. R. Cham- 
 bless enough votes to make, with those credited to J. R. Chalmers, enough to elect 
 the latter over his leading competitor, Mr. Van H. Manning. After the canvass 
 had been made papers had been filed with the secretary of state showing that the 
 votes credited to J. R. Chambless were really cast for Mr. Chalmers, the error in the 
 name being the error of a clerk of the commissioners in one county. The affidavit 
 of this clerk was one of the papers filed by Mr. Chalmers as part of his exhibits. 
 
 The Clerk further stated that he had received no certificate from the governor 
 based on the canvass of the secretary of state. Therefore, as the exhibits were not, 
 in his opinion, sufficient ground for the enrollment of Mr. Chalmers, he had enrolled 
 no one. 
 
 Later, after the organization of the House, Mr. George L. Converse, of Ohio, 
 stated that Mr. Manning had not desired to present his credentials until there had 
 been action by the House. But believing that the vacancy should be filled Mr. 
 Converse would present them, and offered the following resolution: 
 
 Wliereas Van H. Manning holds the certificate of the governor of the State of Mississippi in due 
 form, giving him the prima facie right to a seat on this floor as a Representative of the Second district of 
 Mississippi in the Forty-eighth Congress: Therefore, 
 
 Resolved, That the said Van H. Manning immediately qualify as a Member of this House as a Repre- 
 sentative of said district without prejudice to the final right to the seat. 
 
 Mr. John A. Kasson, of Iowa, questioned whether the House had the right to 
 order a man to be sworn in who did not claim a seat, but Mr. Converse denied that 
 Mr. Manning did not claim a seat. 
 
 The previous question was then ordered on the resolution, by a vote of yeas 
 163, nays 128. 
 
 Pending a motion to recommit with instructions, the House adjourned. 
 
 On the next day the request was made on behalf of Mr. Manning that the 
 question of his prima facie right to a seat be referred. Therefore the proceedings 
 of the previous day were rescinded, and the House agreed to this resolution : 
 
 ' First session Forty-eighth Congress, Journal, pp. 14, 17; Record, pp. 3, fi, 25. 
 '' Edward McPherson, of Pennsylvania, Clerk.
 
 § 45 THE clerk's roll of the members-elect. 29 
 
 Resolved, That the certificate and all other papers in the contested election case of Chalmers ri. 
 Manning, from the Second Congressional district of the State of Mississippi, be referred to the Committee 
 on Elections, when appointed, with instructions to report immediately whether upon the prima facie 
 case as presented by said papers said Manning or Chalmers is entitled to be sworn in as a Member, pending 
 the contest on the merits, and not to affect the final right to said seat. 
 
 45. The Mississippi election case of Chalmers v. Manning, continued. 
 
 In determining prima facie right the House went behind a cer- 
 tificate in due form, the bearer of which waived his prima facie right, 
 and consulted the returns. 
 
 The House declined to give prima facie title to a contestant on the 
 strength of the returns, although the bearer of the credentials w^aived 
 his prima facie right. 
 
 An instance wherein the House seated neither of two claimants on 
 prima facie showing, deferring the administration of the oath until the 
 ascertainment of final right. 
 
 A contention that the admissions of a claimant might not waive a 
 prima facie title in which the people of the district were interested. 
 
 An afB.davit intended to explain a clerical error in returns was given 
 little weight by the Elections Committee because of its ex parte character. 
 
 On February 8, 1884,' Mr. Henry G. Turner, of Georgia, presented the report 
 of the majorit}' of the Conunittee on Elections in the question arising as to the 
 prima facie right to the seat preliminary to decision as to the final right in the 
 Mississippi case of Chalmers v. Manning. The report of the majority thus states 
 the preliminary facts: 
 
 In the Second Congressional district of Mississippi, composed of the counties of Benton, De Soto, 
 Lafayette, Marshall, Panola, Tallahatchie, Tippah, Tate, and Union, an election for Representative in 
 the Forty-eighth Congress was held on the 7th day of November, 1882, at which election Van H. Man- 
 ning and James R. Chalmers were opposing candidates. When the Forty-eighth Congress assembled, 
 (in the 3d day of December last, before the organization of the House, the Clerk informed the House that — 
 
 "The Clerk has not enrolled the name of anyone as a Representative for the Second district of 
 Mississippi, for the reason that no paper which can be considered a certificate of election in the sense 
 of the law has been presented to him." 
 
 After the organization of the House, on the same day, Mr. Conveise, of Ohio, submitted the follow- 
 ing resob'tion: 
 
 "Whereas Van H. Manning holds the certificate of the governor of the State of Mississippi in due 
 form, giving him the prima facie right to a seat on this floor as a Representative of the Second district 
 of Mississippi in the Forty-eighth Congress: Therefore, 
 
 Resolved, That the said Van H. Manning immediately qualify as a Member of this House as a Repre- 
 sentative of said district without prejudice to the final right to the seat." 
 
 Pending the consideration of this resolution the House adjourned, and on the next day Mr. Converse 
 stated that at the request of Mr. Manning he submitted the following resolution, which was adopted: 
 
 "Resolved, That the certificate and all other papers in the contested election case of J. R. Chalmers 
 V. Van H. Manning, from the Second Congressional district of the State of Mississippi, be referred to the 
 Committee on Elections when appointed, with instructions to report immediately whether upon the 
 prima facie case as presented by said papers said Manning or Chalmers is entitled to be sworn in as a 
 Member pending the contest on the merits, and not to affect the final right to said seat." 
 
 At the outset a question arose as to the effect of this action of the House. 
 The majority say: 
 
 ' First session Forty-eighth Congress, House Report No. 283; Mobley, p. 7.
 
 30 PRECEDENTS OF THE HOUSE OF EEPKESENTATIVES. § 45 
 
 This action of the House was either a refusal of the seat to Mr. Manning by the House, on the usual 
 evidence of the governor's certificate, or it was a renunciation by him of his right to demand such seat 
 upon the governor's certificate alone; perhaps it was both. 
 
 The minority Anews, submitted by Mr. John C. Cook, of Iowa, took issue with 
 this construction of the resohition: 
 
 We conclude, therefore, in the light of all the surrounding facts, and upon a fair reading of the 
 resolution, that the House, in adopting it, did not deny Mr. Manning's scat upon regular credentials, 
 but required us to ascertain and report whether he or Mr. Chalmers held such credentials. Any other 
 conclusion would place this House in the singular attitude of denying to Mr. Manning, without reason, 
 a well-defined and established legal light. If the chairman is right in his construction of the resolution, 
 certainly it would be better if the House would repeal it than that it should permit its error to ripen 
 into wrong. We submit, however, that neither by his own action nor by the action of this House has 
 Mr. Manning been placed beyond the pale of law, reason, and precedent, but that he is clearly entitled 
 to a seat on this floor pending a contest on the merits, the same as any other Member duly returned. 
 
 The majority assume that by the terms of the resolution they are expected 
 to examine and give weight to other papers besides the certificate of the governor. 
 Their report says : 
 
 Among the papers referred to us we find a commission issued by the governor of Mississippi to Mr. 
 Manning based on the certificate of the secretary of state, who by law is charged with the duty of can- 
 vassing the returns of elections and certifying the result to the governor. This commission bears the 
 great seal of the State, and is otherwise unexceptionable in form; and could we have confined our 
 inquiry as to the prima facie right to the disputed seat to this paper alone we would unhesitatingly have 
 affirmed Mr. Manning's right to occupy the seat pending the contest. Except in extraordinary cases 
 and in rare instances we find that the commission or certificate concludes all inquiry as to which of the 
 claimants of a seat shall occupy it until the contest on the merits is determined. And every considera- 
 tion of prudence and safety admonishes us to adhere to this practice. 
 
 The minority views hold — 
 
 In determining their report upon the question, our associates are pleased to speak of the facts in this 
 case which relate to the merits. In doing so they say, "Mr. Manning's admission and his failure to file 
 his certificate with the Clerk and take his seat in the usual way make this case without a parallel in the 
 annals of Congress," and, ergo, justify them in going behind the certificate. 
 
 The committee could not have known anything about the alleged admissions imtil they had violated 
 the law which forbade us from going behind the credentials, and can not justify their violation by 
 subsequent developments. If the law is that you can look behind every certificate to see what the facts 
 are, and then may or may not consider such facts in determining the prima facie right, as the committee 
 may or may not consider them without parallel, the law that the certificate is conclusive of the prima 
 facie right, so explicitly and uniformly laid down in the books, is but a delusion and a snare. 
 
 But we are advised that Mr. Manning's delay in filing his certificate is not unparalleled, and that 
 heretofore such delay has not even excited comment. He offered his certificate the day on which 
 Congress met, and certainly his failure to file it with the Clerk in vacation infringed no law and affected 
 only his individual convenience. 
 
 But if we must be surprised by this delay, surely no one will seriously contend that it amounted to 
 a waiver or a resignation of his right, or in any other way known to the law and practice of legislative 
 assemblies defeated or impaired it. 
 
 This proposition, as to whether the House might at this stage go behind a 
 certificate which was regular and not impeached by anything on its own face, was 
 debated at length. The chairman of the committee, in his opening speech,' reviewedl 
 the older usage of the House in effecting organization, showing that in the early 
 
 ' Record, p. 1092.
 
 § 45 THE clerk's roll of the members-elect. 31 
 
 days the Members-elect appeared on the first day and presented their credentials, 
 which were read. Whenever a Member's credentials were assailed the question was 
 determined at once from an inspection of the credentials alone. The plirase "prima 
 facie case" was used to define the effect of the usual credentials prior to organiza- 
 tion, and to distinguish that case from a trial on the merits. But when a case was 
 taken out of the House and sent to a committee for determination without an 
 investigation of the entire case on all the merits it was the usual practice to define 
 the limits of the inquiry by the committee in the resolution of reference. In the 
 case of Hunt v. Sheldon it was settled that the prima facie right might depend on 
 something besides the certificate alone. The case of Gunter r. Wilshire was also 
 cited. And in concluding the debate' the chairman reaffirmed the principle that 
 in determining the prima facie right after the organization had been effected the 
 House was not restricted to examination of the governor's certificate. 
 
 In opposition it was argued - that the question of prima facie right was really 
 the question, "Who has the return?" In this case ^Ir. Manning had the retiun, 
 and the committee might not consider in this connection the other question as to 
 who was actually elected. 
 
 The minority report also says: 
 
 We maintain the constitutional right of the Second Congressional district of Mississippi to repre- 
 sentation on this floor. 
 
 It is admitted that her citizens voted at the proper time and places, that her officers did all the law 
 required them to do, from the beginning to the issuance of the proper certificate of election; indeed, 
 that all was done there that was done in any district in the United States. 
 
 It is further admitted that Mr. Manning is here her duly accredited Representative. His creden- 
 tials are from the proper authority, perfect in form, and verified under the great seal of the sovereign 
 State of Mississippi; indeed, that his credentials are as valid as the credentials of any Member occupy- 
 ing a seat upon the floor of this House. Yet, while every other district is represented, as they have a 
 right to be, without reference to whether there is or is not a contest over the seat, the majority of the 
 committee maintain that the right of said district to representation mtist be denied, and Mr. Manning 
 kept out of a seat upon this floor until they can decide this contest upon its merits. 
 
 We must protest against this conclusion, which is at war with reason, with all precedents, and with 
 the fundamental right of representation. 
 
 We assert that Mr. Manning's credentials are absolutely conclusive of his right to be sworn in as a 
 Member of this House, and represent the Second Congressional district of Mississippi on this floor until 
 the House shall, in the exercise of its constitutional right, determine that he was not elected. 
 
 This principle is elementary, sanctioned by the wisdom of centuries, clearly announced by every 
 text writer on the subject, supported by innumerable precedents, and unassailed at any time, by any- 
 body, in any quarters, except in this case, at this time by the majority of this committee. 
 
 The majority report proceeds to an enumeration of the papers other than the 
 credentials which were referred to the committee. 
 
 Pursuing the instructions of the House, we find from the papers referred to us that the secretary of 
 state certified to the governor in due form that Van H. Manning received 8,749 votes, J. R. Chalmers 
 8,257, H. C. Carter 129, and J, R. Chambless 1,472. It appears from this certificate that 1,472 votes 
 counted for J. R. Chambless were cast in Tate County, and that J. R. Chalmers received no votes in that 
 county. On looking to the return of the election in Tate County, certified by the commissioners of elec- 
 tion for that county, duly authenticated, and referred to us, we find that these commissioners certify 
 that at the election in that county J. R. Chalmers received 1,472 votes, and add these words to the certifi- 
 cate: "AU of which fully appears by the tally sheet on the opposite side of this page, which we certify 
 
 ' Record, p. 1172. 
 
 ' Especially by Mr. J. Randolph Tucker, of Virginia, Record, p, 1159.
 
 32 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 45 
 
 to be a true and correct tally sheet of the votes cast in said Tate County." On the back of this certifi- 
 cate we find not a "tally sheet" but a tabular statement, which seems to count 1,472 votes for J. R. 
 Chambless, and omits altogether the name of Chalmers. This tabular statement is without any caption; 
 but if it is intended by the words "tally sheet," we think that the secretary of state should have been 
 guided by the face of the certificate, which was complete in itself, and counted these 1,472 vote.s for 
 J. R. Chalmers. This course would have resulted in the election of Chalmers, according to the face of 
 the returns, by a plurality over Manning of 980 votes. On the other hand, if this tabular statement on 
 the back of the returns from Tate County is to be taken as a part of the return, this construction would 
 render that return so absurd as to void it altogether, and in that view it should have been excluded 
 altogether from the canvass by the secretary of state. This course would have resulted in the election 
 of Chalmers by a plurality of 674 votes. 
 
 We also find among the papers referred to us another return of the election in Tate County, certified 
 by the commissioners of election for that county, dated seven days after their first return, and giving 
 1,472 votes to J. R. Chalmers. But we think their functions had ceased with their first return; and 
 this subsequent statement, being unofficial, can not be regarded as evidence. 
 
 We also find among the papers referred to us an affidavit made by one J. M. Williams, relating to 
 the returns of the election in Tate County, to the effect that he was one of the clerks of the commissioners 
 of election who canvassed the returns of the votes in said county, that he made out the "tally sheet, "- 
 etc., that there was no vote returned for J. R. Chambless, and that if that name appeared in said tally 
 sheet it was a clerical error, etc., but this affidavit being ex parte, and not having the character of official 
 evidence, we have not in this inquiry given it much weight. The official returns of the votes cast 
 at the various voting places in Tate County, or copies thereof properly authenticated, would have 
 been better evidence than either the second return made by the commissioners of election for that 
 county or this affidavit of Williams. 
 
 We also find among the papers referred to us certified copies of a verdict and judgment on a man- 
 damus instituted by Mr. Chalmers in the circuit court in and for the first district of Hinds County, Miss., 
 against Henry C. Myers, secretary of state, in which proceeding the issues involved in this contest 
 over the prima facie right to the seat seem to have been determined by the court in favor of Mr. Chalmers 
 on the 24th day of January, 1883, the commission having been awarded to Mr. Manning by the governor 
 on the 18th day of November, 1882. It does not appear that the governor was advised of this pro- 
 ceeding, although it does appear from a recital in said verdict and judgment that the secretary of state 
 certified the canvass of the vote after service of a prohibitory order upon him from the court. But it 
 seems that the supreme court of Mississippi afterwards, on the 11th day of June, 1883, reversed the 
 judgment of the circuit court, as appears from a certified copy of the judgment of the supreme court, 
 among the papers referred. The ground of the reversal of the judgment of the lower court is not shown 
 in the record. Mr. Manning was no party to this proceeding in either court. 
 
 On examining the issues between the parties to this contest, as stated in the notice of contest, and 
 the answer thereto, we find that Mr. Chalmers denies Mr. Manning's prima facie right to the seat as 
 well as his ultimate title; and Mr. Manning in his answer, after denying various charges in the notice 
 of contest, and stating the circumstances under which the prohibitory order before mentioned in this 
 report was obtained, and averring that it was properly disregarded by the secretary of state, makes 
 this statement: 
 
 "I deny that any frauds were attempted or practiced by my friends, or that they were guilty of 
 fraudulent or illegal practices, or that you received a majority of 1,332 votes as a Member of the Fortys 
 eighth Congress from said Congressional district, though I admit that the inspectors and clerks of the 
 several election precincts did certify to the county commissioners of election in their respective counties 
 that you received a majority of the votes cast; and I further admit that the 1,472 votes which the 
 commissioners of Tate County returned as cast for J. R. Chambless were in fact cast for you, and that 
 the name Chambless was inserted in the return by clerical error instead of your name. And in this 
 connection, I state that because of said error to your prejudice, I wOl not take a seat in said Congres- 
 or ask the clerk to enroll my name as a Member thereof until I have vindicated and the House shall 
 have affirmed my right thereto." 
 
 Mr. Manning, in his answer, also charges against the contestant a resort to bribery, corrupt use 
 of official patronage, and intimidation. All the papers referred to us, and hereinbefore specified, 
 are exhibited in an appendix in this report.
 
 §45 
 
 THE clerk's boll OF THE MEMBERS-ELECT. 33 
 
 This case is without precedent. The admissions of Mr. Manning, his refusal to present his commission 
 and take his seat in the usual way, and the instructions of the House, are without a parallel in the annals 
 of Congress. 
 
 Guided by the instructions of the House, and having considered carefully the documentary evidence 
 referred to us, we are unable to agree that Mr. Manning should be seated upon his prima facie title. 
 Mr. Chalmers having no such credentials as the law contemplates, we do not think that he ought to be 
 seated pending the contest. 
 
 The minority views declare that they can not agree — 
 
 that the admissions of Mr. Manning shall be held to affect the title to a seat in Congress, in which the 
 citizens of the Second district of Mississippi are more deeply concerned than Mr. Manning. 
 
 The minority riews go on to argue : 
 
 Now this question is not a new one; there is nothing startling nor unparalleled about it. 
 
 It is just as well settled that the returned Member has tlie right to hold the seat pending a contest 
 on the merits with the person who would have been returned had not the clerical error of a returning 
 officer inters'ened as that you can not go behind the certificate in determining who should hold the 
 seat pending a contest on the merits. Indeed, the last stated rule, which all admit, grows out of and is 
 founded upon the first. 
 
 If the person who ought to have been returned was entitled to the seat pending a contest with the 
 Member who is returned no rule would ever have been made excluding the evidence by which the 
 party who ought to have been returned could establish his right. Because the evidence, if admitted, 
 does not establish any right, is the reason for excluding it. (See Cushing, sec. 144, 140, and authorities 
 before cited.) The admission of a fact by Mr. Manning in his answer can not give any right which proof 
 of the fact would not give. 
 
 Rights are dependent upon facts, and a defendant can neither give rights by admitting them nor 
 abridge rights by denj-ing them. If you should hold that the man who ought to have been returned 
 is entitled to occupy the seat pending a contest on the merits, then it makes no difference whether the 
 fact that the person ought to have been returned lies on the surface of the investigation in the shape of an 
 admission or is buried under volumes of proof. 
 
 Such a precedent would double the labor in every contest. We would first have to examine the 
 pleading and proof to ascertain who was elected on the face of the returns. After seating such person 
 we would have to institute a second investigation to ascertain who was elected in very truth. Now, 
 as it is apparent that the person who has the majority on the face of the returns has no more right to a seat 
 than the person who is returned, since the right to the seat is vested all the time in the person really 
 elected, legislative bodies have wisely determined, in the interest of economy, of their time and the 
 public treasury, to have no intermediate investigation which does not reach the merits of the contest. 
 As the man elected ought to be returned, and as fraud at the ballot box should be as promptly corrected 
 as any errors committed by returning officers, you can not say who ought to have been returned until 
 you have fully investigated the merits of the case. 
 
 The committee are not prepared to report that Mr. Manning ought not to have been returned, because 
 they have not investigated his allegations that Mr. Chalmers was not only not elected but that the pre- 
 cinct officers would have returned a large aggregate majority for him but for the bribery and corruption 
 of the voters by Mr. Chalmers. A little thought will make it apparent that you must hold either that a 
 contest vacates a seat until a decision on the merits or that the returned Member shall hold the seat 
 pending such contest, no matter what facts lie behind the certificate. Any effort to ingraft exceptions 
 upon the settled rule leads inevitably to confusion, disorder, injustice, and a denial of the right to 
 representation. 
 
 The great right here for your adjudication is the right of one hundred and fifty thousand citizens to 
 representation on this floor while the individual contest between Messrs. Manning and Chalmers is being 
 determined. 
 
 Consideration for that right and a deep sense of necessity of having fixed rules for the exercise 
 of that right led to the adoption and has secured the maintenance up to this time of the rule that the 
 returned Member shall hold the seat pending the contest on the merits. 
 5994— VOL 1—07 3
 
 34 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 46 
 
 The attempt of the majority of the committee to evade that rule leads to a denial of that constitu- 
 tional right of representation which the rule was framed to protect. 
 
 And we call your attention now to a startling fact in this case. 
 
 The committee have reported unparalleled action on the part of this House and on the part of Mr. 
 Manning, but they have not found anything to criticise upon the part of the people of the Second district 
 of Mississippi, whose dearest right they assail and ask you to disallow. 
 
 In any and every aspect of this case this district is entitled to representation. Reason, analogy, 
 precedent, and established rules unerringly point to Mr. Manning as the one person entitled to repre- 
 sent it. 
 
 Instead of being able to defend their conclusion behind the resolution of this House, some of the 
 committee have confessedly gone outside of and beyond any authority you gave them. They say, "We 
 are unable to agree that Mr. ^Manning should be seated upon his prima facie title." Your instructions 
 were to find out whether he had a prima facie title. They have found that he has such prima facie title, 
 and then proceed without warrant and without direction or solicitation from you to advise that he should 
 not be allowed the right his prima facie title insures. 
 
 We respectfully submit that you never questioned his right to the seat if it appeared in our investi- 
 gation that he had a prima facie title to it. 
 
 In view of the great interests and important principles involved, and of our clear convictions as to 
 the right, we are impelled to submit this report and the following resolutions for your adoption: 
 
 Resolved, That the Hon. Van H. Manning holds perfect credentials, issued in due form and by 
 lawful authority, as Member-elect to the Forty-eighth Congress from the Second Congressional district 
 of the State of Mississippi. 
 
 Resolved, That being the duly returned Member he is entitled to be sworn in and occupy the seat 
 on this floor pending a contest on the merits over it. 
 
 The majority recommended this resolution: 
 
 Resolved, That the Committee on Elections be discharged from the further consideration of the 
 prima facie right to the seat in the contested election case of J. R. Chalmers v. Van H. Manning. 
 
 The report was very fully debated on February 13, 14, and 16, 1884,' and on 
 the last day the question was taken on the proposition included in the first resolu- 
 tion of the minority. This was disagreed to, yeas 106, nays 139. 
 
 The second resolution of the minority was then disagreed to, yeas 91, nays 157. 
 
 The resolution proposed by the majority was then agreed to, ayes 113, noes 55. 
 
 46. The Mississippi election case of Chalmers v. Manning, continued. 
 
 The majority of the Elections Committee, in a sustained case, con- 
 cluded that the House was not concerned about undue influence used in 
 the nomination of a candidate. 
 
 A contestant, employed after the election as assistant to a United 
 States district attorney, was held qualified to be seated, especially as his 
 employment ceased before Congress met. 
 
 Instance wherein a contestant belonging to the party in the minority 
 in the House was seated. 
 
 On June 20, 1884,- Mr. John C. Cook, of Iowa, presented the report of the 
 majority of the committee on the question of final right to the seat. At the outset 
 it admits that Mr. Chalmers received a majority of the votes. 
 
 A subordinate question was presented by charges and testimony relating to 
 use of money and Federal patronage in the district, and the report says: 
 
 ' Record, pp. 1091, 1126, 1156-1174; Journal, pp. 586-589, 591 
 2 Report H. of R. No. 1599; Mobly, p. 34.
 
 § 46 THE clerk's roll of the members-elect. 35 
 
 Believing that it is the duty of the House, whenever it is shown that the election cf a Member is the 
 result of this influence, to declare the election void; and believing, further, that the testimony in a case 
 is to be taken in connection with contemporaneous historical facts, your committee has given careful 
 attention to the record and evidence in this case. We conclude that it can not fairly be said that the 
 election of Mr. Chalmers was secured by such undue influence; that is to say, that without it he would 
 not have been elected, especially in view of the large majority he received. It was perhaps more instru- 
 mental in making him the candidate of the Republican party and suppressing other aspirants for party 
 support. But with this we think the House has no concern. 
 
 A large part of the evidence is calculated ' to show that the contestant was deceitful in his politics, 
 treacherous to his political friends, and unworthy of so high an office. This, however, must address itself 
 to the voters of his district, and the House has no right to render an unjust decision because a man law- 
 fully elected may be subject to this criticism more or less. 
 
 The minority views presented by Mr. Ambrose A. Ranney, of Massachusetts, 
 in behalf of himself and five others of the committee, dissented from any conclu- 
 sions that would imply credence in the charges. 
 
 The main issue in the case is thus stated and decided in the majority report: 
 
 It is next claimed that Mr. Chalmers, if legally elected, has since his election disqualified himself 
 from holding this ofiice by accepting another office from the L'nited States and performing its duties 
 within the term of office of a Member of the Forty-eighth Congress, under the following provision of the 
 Constitution: 
 
 "And no person holding any office under the United States shall be a Member of either House 
 dming his continuance in office." 
 
 Because on the 9th day of December, 1882. Mr. Chalmers was by the Attorney -General of the United 
 States employed or appointed ''special assistant to the district attorneys for the northern and southern 
 districts of Mississippi," and that by retaining this position he had vacated his ofiice as Representative. 
 
 Your committee, however, passing the question of whether this is an office within the meaning of 
 the Constitution, find that Mr. Chalmers was retained for a special purpose, and that prior to the time 
 for the convening of Congress the matter for which he was appointed or employed had been disposed of. 
 His account had been rendered to and closed by the Department. No resignation had been made — 
 none was necessarj-. Practically his connection with the office of district attorney had ceased. 
 
 We recommend to the Hotise for adoption the following resolution: 
 
 Resolved, That James R. Chalmers was duly elected as a Representative in the Forty-eighth Con- 
 gress from the Second district of Mississippi, and is entitled to be sworn in as a Member of this House. 
 
 The minority views presented by Mr. Ranney practically concurred in this 
 decision: 
 
 It has been contended that contestant was not eligible, or rather that he had lost his right to a seat, 
 because employed December 9, 1882, by the Attorney-General, to act as counsel and aid the district 
 attorneys in the prosecution of some criminal cases in Mississippi. His employment was a special one 
 in the line of his profession, and it was in no sense an office which was incompatible with his holding 
 the position of Representative to Congress. He was not awarded a certificate of election as the chosen 
 Representative, but the same was awarded to and was held by another person, to wit, the contestee. 
 He was only a contestant claiming the seat. He was employed and retained after the day of election 
 for a special purpose, to assist the district attorneys for the northern and southern districts of Mississippi 
 in the prosecution of certain criminal cases. The emplojTuent was authorized xmder the statutes of the 
 United States. It was a special contract employment for special pay according to what he did, and not 
 an appointment to fill any office created by law, with duties prescribed and a salary attached. There 
 is no good reason for a claim that it was the holding of an office under the United States which was incom- 
 patible with his being a Member of this House under the provisions of the Constitution, even if he had 
 been a Member of that body. But whether it was or not, inasmuch as he was not then accredited as a 
 Member and another person was, and especially inasmuch as his emplojinent had ceased, his services 
 
 ' It was explained in debate that "intended" was the word which should have been used.
 
 "36 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 47 
 
 having been fully performed and ended before the Forty-eighth Congress met, he eould not in any event 
 properly be held to come within the provision of the Constitution referred to either in its letter or 
 spirit. (Contested Elections in Congress, 1779-1837, p. 122; Hammond v. Herrick, in same, p. 287; 
 Earle's case, p. 314; Mumford's case, p. 316; Schenck's case; McCrary, sees. 238, 244.) 
 
 But Mr. L. H. Davis, of Missouri, presented views wherein it was argued at 
 length that an assistant district attorney was an officer within the meaning of the 
 Constitution. Mr. Davis discussed the law and the precedents at length. 
 
 The report was debated on June 25/ the main issue being on the question as 
 to whether or not the office of assistant district attorney was incompatible with that 
 of Member of Congress. Several Members who thought that the offices might be 
 incompatible, nevertheless considered that the contestant had the power of electing 
 which office he would accept as soon as it should be determined that he was entitled 
 to the seat in the House. 
 
 The question was ffi-st taken on the following resolution proposed by Mr. Davis 
 in his minority views: 
 
 Resolved further. That said Chalmers having accepted the office of special assistant United States 
 district attorney for the northern and southern districts of the State of Mississippi, since the said election, 
 and holding said office up to and beyond the 1st day of February, 1884, is ineligible to a seat in this 
 Congress, and a vacancy exists in the Second Congressional district of the State of Mississippi. 
 
 This resolution was disagreed to — ayes, 36 ; noes, 98. 
 
 Then the question was taken on a second resolution proposed by Mr. Davis : 
 
 Resolved, That the means and methods employed by the Federal Administration in securing the 
 election of James R. Chalmers as a Member of the House of Representatives of the Forty-eighth Congress 
 are, as appears by the majority report and the evidence on file, repugnant to and subversive of true repre- 
 sentative government, and the said election is therefore declared void. 
 
 This resolution was disagreed to — yeas, 56; nays, 163. 
 
 Then the resolution of the majority declaring contestant elected was agreed to 
 without division, and Mr. Chalmers appeared and took the oath. 
 
 It should be noted that Mr. Chalmers belonged to the minority party in the 
 House, and Mr. Manning to the majority party. 
 
 47. No credentials being received from a district prior to the meeting 
 of Congress, the Clerk placed no name on the roll for that district. 
 
 The Clerk, while presiding at the organization, declined to open a 
 paper addressed to the Speaker, although it was supposed to inclose a 
 missing credential. 
 
 On October 15, 1877,^ at the organization of the House, while. the roll of Mem- 
 bers-elect was being called, the Clerk ^ said: 
 
 From the State of Missouri there is one district, the third in number, from which no credential of any 
 kind has been received in favor of any person, and consequently no name has been placed upon the roll 
 from said district. There has been handed to me at this instant a paper from the State of Missouri, 
 addressed to the Speaker of the House of Representatives. It is suggested that, as there is no Speaker, 
 the Clerk should open it. 
 
 'Record, pp. 5591-5606; Journal, pp. 1548, 1550, 1553. 
 ^ First session Forty-fifth Congress, Record, p. 52. 
 'George M. Adams, of Kentucky, Clerk.
 
 § 48 THE clerk's roll of the members-elect. 37 
 
 Several Members having objected, the Clerk said: 
 
 The Clerk prefers, inasmuch as it might raise a question about which, at this late hour, he is not 
 prepared to determine what he should or should not do in reference to the roll, to leave it for the House 
 to determine when it shall have organized. 
 
 48. A Member-elect having been enrolled on the strength of creden- 
 tials in due form, the Clerk declined to strike him from the roll on the 
 strength of later papers. — On March 18, 1879/ at the time of the organization 
 of the House, after the roh of Members-elect had been called, the Clerk - said in 
 reference to one of the seats from the State of Florida: 
 
 He (the Clerk) received a certificate of election signed by the governor and authenticated by the 
 seal of Florida, as prescribed by the following provision in the statutes of that State: "Whenever any 
 person shall be elected to the office of elector of President or Vice-President, or Representative in Con- 
 gress, the governor shall make out and sign and cause to be sealed with the seal of the State and transmit 
 to such person a certificate of his election," duly accrediting Mr. Hull as a Representative-elect to the 
 Forty-sixth Congress. He subsequently received a number of papers, among which was a certified copy 
 of a canvass of the votes in the Second district of Florida, made by the board of State canvassers in pur- 
 suance of an order of the supreme court of that State, from which canvass it appears that Mr. Horatio 
 Bisbee, jr., was elected; but those papers were not accompanied by the certificate of the governor, 
 authenticated by the seal of the State, as required by the statute just cited. The Clerk did not feel at 
 liberty to regard anj^hing as a credential within the meaning oi the law governing him in making up the 
 roll except a certificate made out and signed by the governor and sealed with the seal of the State, as 
 prescribed by this provision of the statutes of Florida; and as Mr. Bisbee, who claims to have been 
 elected, presented no such certificate, the Clerk could not regard him as possessing the prima facie evi- 
 dence of an election which the laws of Florida requires that he should have, and consequently omitted 
 his name from the roll. 
 
 49. On August 7, 1893,' at the time of the organization of the House, the 
 Clerk,* after the State of Michigan had been called, made the following statement: 
 
 The Clerk begs leave to state, in reference to the certificate of election from the Fifth Congressional 
 district of Michigan, that on December 22, 1892, there was filed in his office a certificate of election to 
 the House of Representatives from that district in due and authorized form, showing the election of 
 Hon. George F. Richardson as a Representative to the Fifty-third Congress of the United States, and 
 the name of said George F. Richardson was, by the Clerk of the House, then duly placed upon the roll 
 of Representatives-elect. Exactly similar certificates in every respect, certified to by the same State 
 officers, were filed at other dates, as late as AprU 3, 1893, showing the election of Representatives to 
 Congress from all the other districts of Michigan, and similar action was taken in each case. 
 
 On February 20, 1893, there was delivered to the Clerk an alleged certificate of election, signed by 
 other persons (the State ofiicers required by law to certify the election of Members of Congress having 
 been changed in the interim), which said certificate, accompanied by sundry papers, claimed to show 
 the election of Hon. Charles E. Belknap from the Fifth Congressional district of Michigan as a Repre- 
 sentative to the Fifty-third Congress. The Clerk refused to strike off the roll the name of George F. 
 Richardson as a Member-elect from this district, having already exercised the authority given to him 
 by the law. The matter is therefore submitted to the House, which, when organized, is, under the 
 Constitution and the law, judge of the elections, returns, and qualification of its own Members. 
 
 50. In 1879 the Clerk honored the regular credentials from the gov- 
 ernor of Iowa, although papers presented in opposition thereto raised a 
 
 ' First session Forty-sixth Congress, Record, p. 4. 
 ^George M. Adams, of Kentucky, Clerk. 
 'First session Fifty-third Congress, Record, p. 200. 
 * James Kerr, of Pennsylvania, Clerk.
 
 38 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 51 
 
 doubt as to the lawful day of election. — On March 18, 1879,' at the time of 
 the organization of the House, after the roll of Members-elect had been called by 
 the Clerk," he said: 
 
 There were presented to the Clerk certificates duly signed by the governor of the State of Iowa, 
 under the seal of the State, accrediting the nine gentlemen whose names have been announced as Rep- 
 resentatives duly elected on the 8th day of October, 1878. Sundry papers were also presented to the 
 Clerk in reference to an election claimed to have been held on the Tuesday next after the first Monday 
 in November, 1878. These papers, however, do not conform to the requirements of the laws of Iowa. 
 They are not signed by the governor; they are not under the seal of the State; they are simply papers 
 which came imauthenticatcd and in no sense constitute credentials within the meaning of the laws of 
 Iowa. WTiatever may be the fact, therefore, in reference to the time at which the election should 
 have been held in the State of Iowa, even though it were definitely and clearly settled that the election 
 should have been held in November instead of October, the Clerk could not in any event place on the 
 rolls the names of those persons in whose behalf papers have been filed in reference to the November 
 election for the reason that these papers do not comply with the laws of the State of Iowa and do not 
 constitute credentials. 
 
 As to whether the election should have been held in October or in November there are grave doubts 
 in the minds of those learned in the law. It is a question about which he confesses he has not been able 
 to arrive at so clear and satisfactory conclusion as he himself could have desired. But in the discharge 
 of the duty imposed upon him, unless he could arrive at a clear and satisfactory conclusion that those 
 gentlemen were not elected on the proper day, he did not feel at liberty to withhold their names from 
 the roll of Members-elect, but thought it proper to give the benefit of the doubt in favor of representa- 
 tion and to remand that question for the consideration of the House when it shall have organized. 
 
 51. In 1879 the Clerk declined to honor a regular credential for a 
 Representative at large to which the State was not entitled by law. — On 
 
 March IS, 1879,' at the organization of the House, after the roll of Members-elect 
 had been called, the Clerk ^ said: 
 
 He (the Clerk) has received a certificate accrediting an additional Representative from the State 
 of Kansas as elected from the State at large; but as he is not aware of any law authorizing that State to 
 have more than tliree Representatives, he has not placed the name of the person who is claimed to have 
 been elected for the State at large upon the roll. 
 
 52. In 1885 the Clerk honored the Nebraska credentials which, 
 although they did not fully comply with tL e law, were identical in form 
 with certificates sent from that State to former Congresses. — On December 
 7, 1885,^ at the time of the organization of the House, when the State of Nebraska 
 was reached in the caUing of the roll, the Clerk ^ said : 
 
 The Clerk desires to state that he has some doubt as to whether the certificates from the State of 
 Nebraska fully comply with the law, but as they are identical with the certificates filed with the Clerk 
 of the House of Representatives of the Forty-seventh and Forty-eighth Congresses, and as there is no 
 protest or contest, he has placed the names upon the roll. 
 
 53. The Kentucky election case of Letcher v. Moore in the Twenty- 
 third Congress. 
 
 In 1833 the House declined to sustain the action of the Clerk in en- 
 
 ' First session Forty-sixth Congress, Record, p. 4. 
 ^ George M. Adams, of Kentucky, Clerk. 
 ' First session Forty-ninth Congress, Record, p. lOG 
 < John B. Clark, of Maryland, Clerk.
 
 § 53 THE clerk's roll of the members-elect. 39 
 
 rolling a person whose credentials on their face failed to comply with the 
 requirements of the State law. 
 
 An instance wherein, at the organization of the House, before the 
 enactment of the law as to the Clerk's roll, two claimants to a seat were 
 present and participated in the proceedings. 
 
 In 1833 the House decided that a person bearing defective creden- 
 tials should not be called on the roll call until after the election of Speaker 
 and other officers. 
 
 In 1833 the House declined to seat either claimant until the final 
 right should be determined. 
 
 Form of resolution used in 1833 to authorize the institution of a con- 
 test. 
 
 On December 2, 1833,' at the organization of the House, while the Clerk of the 
 last House was callmg the names of the Members-elect, and had called as far as the 
 State of Kentucky. Mr. Chilton Allan, of that State, arose and objected to the 
 calling of Thomas P. Moore, returned to serve as the Member for the Fifth Congres- 
 sional district of said State, on the ground that the said Thomas P. Moore had not 
 been duly elected and that the return of the said Thomas P. Moore was not in the 
 form prescribed by the laws of the State of Kentucky. 
 
 Debate at once arose. Some question was made as to the competency of the 
 body of unqualified Members to make a decision; a proposition was made that a 
 chairman be chosen to preside, etc. 
 
 It appeared from the debate that the Clerk had put the name of Mr. Moore on 
 his roll of Members-elect, and the Members called for the reading of the papers on 
 wliich the Clerk had acted. He therefore produced Mr. Moore's certificate, which 
 was signed by the sheriffs of three of the five counties composing the Congressional 
 district, although tlie law required it to be signed by the sheriffs of all the counties. 
 This certificate, on the face of it, stated that the votes of one county were not taken 
 into account. Both Mr. Moore and his opponent, Mr. Robert P. Letcher, were 
 present, ilr. Moore spoke on the question, and the report of debates indicates that 
 ^^Ir. Letcher was also heard to the extent of making a proposition that both with- 
 draw until after the election of Speaker. 
 
 By general consent it w&s agreed that Mr. Moore should not be called until the 
 House should have become organized by the election of Speaker and other officers. 
 
 On December 4 the subject was resumed and gave rise to an extended debate, 
 during which the insufficiency of the credentials of Mr. Moore was urged. Finally, 
 on December 5, the House agreed to these resolutions: 
 
 Resolved, That the Committee of Elections, when appointed, inquire, and report to this House, who 
 is the Member elected from the Fifth Congressional district of the State of Kentucky; and, until the 
 committee shall report as herein required, 
 
 Resolved, That neither Thomas P. Moore nor Robert F. Letcher shall be qualified as the Member 
 from said district. 
 
 Resolved further, That the Committee of Elections shall be required to receive as evidence all the 
 affidavits and depositions which may have been heretofore, or which may hereafter be, taken by either 
 of the parties, on due notice having been given to the adverse party, or his agent, and report the same to 
 this House. 
 
 ' First session Twenty-third Congress, Journal, pp. 3, 26, 27; Debates, pp. 2130-2135, 2139-2160.
 
 40 PRECEDENTS OF THE HOUSE OF BEPKESENTATIVES. § 54 
 
 54. The Kentucky election case of Letcher v. Moore, continued. 
 
 The House considered the constitution and laws of the State in 
 which the election was held as affording the rule by which irregularities 
 should be tested. 
 
 Although the State constitution required that every vote be given 
 viva voce, the Elections Committee in a report which failed, evidently 
 for other reasons, to be sustained decided that the votes of certain mutes 
 might be counted. 
 
 In an inconclusive case the House reversed the decision of its com- 
 mittee, that residence while attending a school was not such residence as 
 entitled one to the suffrage. 
 
 In 1834 in an inconclusive case the Elections Committee gave the 
 word '' residence " the same meaning as '' home " or " domicile." 
 
 In an inconclusive case in 1834 the Elections Committee held that 
 right of suffrage was not lost by removal from the State unless there was 
 an intention to remain away or proof of permanent location elsewhere. 
 
 The law requiring the presence of the sheriff at the voting, the com- 
 mittee rejected votes cast in his absence, but the House reversed this 
 ruling. 
 
 In 1834 the Elections Committee adopted the rule that depositions 
 must be signed by the witness, unless State law made the certificate of a 
 magistrate sufficient. 
 
 On May 6, 1834/ the Committee on Elections reported in the case of Letcher v. 
 Moore, from Kentucky, the first paragrapli of the report explaining the situation: 
 
 The subject presented itself as one entirely new and unprecedented. Thomas P. Moore, esq., had 
 a certificate from three only of the five sheriffs, and Robert P. I,etcher, esq., a majority of the votes 
 upon the poll books of the five counties composing that district. As Mr. Letcher had no certificate, and 
 tliat of Mr. Moore was not signed by all the sheriffs, as required by the law of Kentucky, neither could 
 produce a satisfactory testimonial of his election, and consequently neither was permitted to take his seat. 
 
 The partial certificate was the result of the action of the sheriff of one county, 
 who withheld the poll book and thus prevented the issuuig of a certificate to Mr. 
 Letcher, who, with that county poll, would have been elected so far as the face 
 of the returns went. The minority of the committee, united with the majority 
 in condemning the conduct of the sheriff, and in the opinion that the certificate of 
 tliree of the five sheriffs was insufficient to entitle Mr. Moore to a seat. But the 
 minority did contend that certified copies of the poll books constituted sufficient 
 evidence of the election to entitle the person in whose favor they showed a majority 
 to take the seat, subject of course to futtue contest and final decision of the House. 
 
 This view did not prevail, however, the House not considering this aspect 
 further, and neither party took the seat on prima facie right. 
 
 The committee gave to the contestants a certain time in which to take testi- 
 mony, and then allowed the contestants an opportunity to examine the testimony 
 and make briefs. Both contestants also presented arguments. 
 
 The committee found in their examination nearly 400 votes objected to, 
 these objections arising principally as to the qualifications of voters, but some as 
 
 'First session Twenty-third Congress, contested elections in Congress, from 1789 to 1834, p. 715.
 
 § 54 THE clerk's koll of the members-elect. 41 
 
 to the conduct of officers of the election. The constitution and laws of Kentucky- 
 were the rule of the election, and the committee examined the objections with 
 reference to that constitution and system of laws. 
 
 First, in relation to the qualification of voters. The constitution of Kentucky 
 provided that "in all elections by the people" the "votes shall be personally and 
 publicly given viva voce." Three deaf-mutes, able to read and write, voted, but 
 objection was made that it was physically impossible for them to comply with the 
 requirements of the constitution. The committee finally concluded that under a 
 liberal construction of the constitution the votes might be received. 
 
 The State constitution also allowed every male over the age of 21 to vote in 
 the county where he was actually residing, provided he had resided in the State two 
 years. The committee gave to the term " residence " the same meaning as "home," 
 or "domicile;" and three men who had been in another State five years were still 
 considered entitled to vote. Also all men living in the county for the time being, 
 imless the business bringing them there was merely temporary, were allowed to 
 vote unless they had actual home or domicile in another part of the State. This 
 principle determined the votes of laborers residing where they could get work. But 
 the students of a theological seminary were rejected in accordance with the following 
 principle laid down by the committee: "That the residence of young men from 
 other States and counties, at schools, academies, or colleges, as scholars or students, 
 is not such a residence as entitles them to the right of suffrage in the county where 
 they are for the time being." The committee also laid down the followmg principle 
 in reference to removal from the State: "An individual having the right of suffrage 
 in Kentucky does not lose it by removal from the State merely, but there must 
 be an evidence of his intention at the time he departs to leave the State permanently 
 or proof of his permanent location elsewhere to forfeit his rights as a voter." 
 
 In their investigation the committee also laid down the following rules in regard 
 to voters : 
 
 That no name be stricken from the polls as unkno-wm, upon the testimony of one witness only 
 that no such person is known in the county; and that where a man of like name is known, residing in 
 another county, some proof, direct or circumstantial, other than finding such a name on the poll book, 
 will be required of his having voted in the county or precinct where the vote is assailed. 
 
 That all depositions not subscribed by the witness be excluded, unless the certificate of a magistrate 
 be sufficient according to the law of Kentucky. 
 
 That votes recorded upon the poll books as given to one candidate can not be changed and trans- 
 ferred to the other by oral testimony. 
 
 That all declarations or statements made by voters after the election, relative to their right of suffrage, 
 be rejected. 
 
 That when a man is found on the poll book, proof that an individual of that name resides in the 
 county, who is a minor, is not sufficient to strike the name off the poll book, and that some proof, direct 
 or circumstantial, other than finding the name on the poll book, will be required of the vote having 
 been given by such minor in the county or precinct where the vote is assailed. 
 
 In that branch of the case relating to the conduct of election officers the law of 
 Kentucky provided for the appointment of two judges and a clerk for the county 
 by the county court, and that in case of failure to appoint, or failure of any or all 
 of the appointees to attend, the sheriff should, immediately preceding the election, 
 appoint proper persons to act in their stead; that the sheriff or other presiding 
 officer should "open the polls by 10 o'clock in the morning" of the day of election;
 
 42 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 55 
 
 that the judges and clerk should be sworn and attend to receiving the votes until 
 the completion of the election and the return; that voting should be done publicly 
 and viva voce "in presence of said judges and sheriff." 
 
 In Garrard County one judge declined serving, and the other not having 
 appeared at 9 a. m. when the sheriff opened the election (the law requiring him to 
 do it "bylO") the sheriff appointed the second judge. About 10 o'clock, when the 
 originally appointed judge appeared, the second appointee of the sheriff resigned 
 the duties. On the second day of the election the sheriff was absent for three 
 hours, the two judges continuing to receive votes in his absence. 
 
 The committee held that the sheriff was not authorized to appoint the second 
 judge imtil 10 o'clock, as the law intended to allow imtil that time for the arrival 
 of the judges. Not until that time could a judge be said to have failed to attend. 
 Therefore the committee rejected the votes taken before 10, during the officiating 
 of the second appointee, who resigned as soon as the regular judge arrived and did 
 not "attend to receiving the votes" imtil the election and return were completed. 
 
 The committee also rejected the votes taken in the absence of the sheriff, since, 
 under the letter of the law, the voting must be in his presence. The State had 
 prescribed the "manner" of holding the election, and the votes were not taken in 
 the prescribed manner. In support of this action the committee cited the cases of 
 Jackson and Wayne (1791), Patton (1793), Morris (1795), Lyon and Smith (1795), 
 McFarland and Purviance (1804), wSpaulding and Mead (1805), McFarland and 
 Culpepper (1807), Bassett and Bayley (1813), Scott and Easton (1816). 
 
 As a result of the corrections made in accordance with the above principles, the 
 committee found Thomas P. Moore entitled to the seat and so reported. 
 
 55. The Kentucky election case of Letcher v. Moore, continued. 
 
 The House in 1834 reversed the decision of its committee that 
 recorded votes on the poll book could not be changed by oral testimony. 
 
 The House reversed the rule of its committee that a vote might be 
 rejected from the poll on the testimony of more than one witness that the 
 voter was unknown in the county. 
 
 There being doubt as to the regularity of the appointment of an elec- 
 tion judge, the committee rejected the votes cast while he oflB.ciated; but 
 the House reversed the ruling. 
 
 It being impracticable for the House to determine with, any certainty 
 who was elected, the seat was declared vacant. 
 
 The case was considered in the House during the period from May 13 to June 
 12, the House disregarding the report and going into the case itself. On June 4 the 
 House decided that the votes cast in Garrard County wliile the second judge 
 appointed by the sheriff was officiating should be counted; also that the votes 
 cast during the absence of the sheriff should be counted. 
 
 The House also reversed the action of the committee in the case of the theo- 
 logical students and decided that their votes should be counted. 
 
 Also the House reversed the principle laid down by the committee that recorded 
 votes, on the poll book could not be changed by oral testimony; also votes which 
 the committee rejected on the testimony of more than one witness, that the voters 
 were unknown in the county, were restored by the House.
 
 § 56 THE clerk's roll of the members-elect. 43 
 
 On June 12 a proposition that Mr. Letcher was entitled to the seat was decided 
 in the negative, yeas 112, nays 114. And then, after unavaihng efforts to amend, 
 the House agreed, by a vote of 114 j^eas to 103 nays, to a resohition that there be a 
 new election, "it being impracticable for the House to determine with any cer- 
 tainty who is the rightful representative." 
 
 56. The prima facie election case of Belknap v. Richardson, from 
 Michigan, in the Fifty-third Congress. 
 
 An instance wherein the Clerk and the House honored credentials, 
 regular in form and issued legally by the proper officer, but annulled by 
 the State supreme court. 
 
 There being conflicting credentials, the House honored those first 
 issued, although by reason of a revision of returns the court had annulled 
 the said prior credentials. 
 
 On August 7, 1893,' during the organization of the House, and while the 
 Speaker was administering the oath to Members, the State of Micliigan was called 
 and ilr. Julius C. Burrows, of that State, objected to the oath being administered 
 to Mr. George F. Richardson. 
 
 The Speaker directed Mr. Richardson to stand aside. 
 
 The other Members and Delegates having been sworn in, Mr. Charles T. O'Fer- 
 rall, of Virginia, offered this resolution: 
 
 Resolved, That George F. Richardson be now sworn in as a Representative for this Congress from 
 the Fifth district of the State of Michigan. 
 
 Mr. Burrows offered the following substitute for this: 
 
 Whereas the credentials upon which George F. Richardson claims a seat in the Fifty-third Congress 
 from the Fifth Congressional district of the State of Michigan have been annulled and made void by 
 reason of the judgment of the supreme court of that State; and 
 
 Whereas in pursuance and compliance with such judgment and with the laws of said State, the State 
 board of canvassers of Michigan have determined, declared, and certified that Charles E. Belknap is 
 duly elected a Representative to the Fifty-third Congress of the United States of America fi-om the 
 Fifth Congressional district of the State of Michigan; Therefore, 
 
 Resolved, That Charles E. Belknap is entitled to be sworn in as a Member of thLs House on his prima 
 facie case. 
 
 By unanimous consent the consideration of these resolutions was deferred until 
 the organization of the House should be perfected. 
 
 On August 8, after debate and after a motion to commit had been negatived, 
 by a vote of yeas 128, nays 193, the substitute was negatived, yeas 114, nays 199, 
 and Mr. O'Ferrall's resolution was agreed to. Then the oath was administered to 
 Mr. Richardson. 
 
 On tliis case, as stated in the Clerk's explanation, both parties presented regular 
 credentials, those presented by Mr. Richardson being exactly similar to those on 
 which the other Michigan ^Members were seated. But in the case of Mr. Richardson 
 there had been in one of the counties of his district — the county of Ionia — a recount 
 which the supreme court of the State had declared illegal, and as a result of the 
 action of the court there appeared a plurality of votes for ^Ir. Belknap. So a new 
 certificate was issued, signed by the same officials who signed the Richardson cer- 
 
 ' First session Fifty-third Congress, Record, pp. 201, 202, 226-238.
 
 44 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 57 
 
 tificate (although not by the same individuals, there having been a change in the 
 State government), and certifying the election of Mr. Belknap. The certificate fur- 
 thermore stated that Mr. Belknap had the largest number of votes and was elected 
 "in accordance with the laws of said State and the decision of the supreme court 
 of Micliigan annulhng the certificate heretofore illegally issued to George F. Rich- 
 ardson and is issued in lieu thereof." 
 
 In the course of the debate the action of Clerk George M. Adams in the Florida 
 case was cited. 
 
 A resolution was adopted to allow Mr. Belknap to contest.* 
 
 57. The Florida prima facie election case of Bisbee v. Hull in the 
 Forty-sixth Congress. 
 
 The Clerk and the House honored credentials, regular in form and 
 issued by a competent officer, although the fact was notorious that the 
 State courts had found a different result. 
 
 On March 18, 1879,^ wliile the Speaker was administering the oaths to Members 
 at the time of the organization of the House, the State of Florida was called and Mr. 
 Noble A. Hull presented liimself to be sworn. Mr. WilUam P. Frye, of Maine, 
 requested that he stand aside, objecting to the administration of the oath to him. 
 
 When the oath had been administered to the other Members, Mr. John T. Harris, 
 of Virginia, ofl^ered this resolution: 
 
 Resolved, That Noble A. Hull be now sworn in as a Representative in this Congress from the Second 
 district of the State of Florida. 
 
 Mr. Frye offered the following as a substitute : 
 
 Whereas the credentials upon which Noble A. Hull claims a seat * * * have been annulled 
 and made void by the judgment of the supreme court of that State; and 
 
 Wliereas, in pursuance and in compliance with such judgment and with the laws of said State, the 
 State board of canvassers of Florida have determined, declared, and certified that Horatio Bisbee, jr., 
 is duly elected a Representative, etc. ; Therefore, 
 
 Resolved, That Horatio Bisbee, jr., is entitled to be sworn in as a Member of this House on his prima 
 facie case. 
 
 On March 19 Mr. Frye withdrew the preamble and resolution and offered the 
 following: 
 
 Resolved, That the question of the prima facie as well as the final right of Horatio Bisbee, jr., and 
 Noble A. Hull, contestants, respectively, claiming a seat in this House from the Second district of Florida, 
 be referred to the Committee of Elections, hereafter to be appointed; and until such committee shall 
 have reported in the premises and the House have decided such question neither of said contestants 
 shall be admitted to a seat. 
 
 Mr. Frye stated in support of his resolution that because of irregularities in the 
 coiuit in two of the counties of the district, the majority which should have been for 
 Mr. Bisbee had been changed so as to show the election of Mr. Hull. The supreme 
 court of the State ordered a review by the State canvassing board, which resulted 
 in the demonstration that Mr. Bisbee had been elected. But the governor, who had 
 already issued a certificate to Mr. Hull, on the first return of the canvassmg board, 
 declined to revise his action and issue a certificate to Mr. Bisbee. Mr. Bisbee 
 
 ' Record, p. 1359. 
 
 ^ First session Forty-sixth Congress, Record, pp. G, 27; Journal, pp. 12, 20, 21.
 
 § 58 THE clerk's roll of the membeks-elect. 45 
 
 applied to the supreme court of the State for a mandamus to compel the governor 
 to issue the certificate. The court held that the governor ought to issue the cer- 
 tificate, but that the court could not compel him to. A dissenting judge held that 
 the court might compel the governor. Mr. Frye cited the case of Davidson and 
 Purman m the preceding Congress, where there were two certificates from two gov- 
 ernors, and where the Clerk placed on the roll the name of the claimant whose 
 certificate was in accordance with the law of the State as interpreted by the supreme 
 court. In behalf of Mr. Bisbee, ilr. Frye and others claimed that the action of the 
 supreme court, and the second canvass had sho\\Ti the certificate issued to Mr. Hull 
 to be void, and therefore that the prima facie right to the seat did not belong to Mr. 
 HuU. 
 
 On the other hand, it was contended that Mr. Hull had the certificate of the 
 governor, issued according to law and regular in form. Therefore he should be 
 seated. The facts brought forward on the other side might be reason for an inquiry 
 as to the final right to the seat, but not as to the prima facie right. 
 
 The question being taken on the resolution proposed by Mr. Frye it was dis- 
 agreed to — yeas 137, nays 140. 
 
 The resolution proposed by Mr. Harris was then agreed to — yeas 140, nays 136. 
 
 Thereupon Mr. Hull appeared and the oath was administered to him. 
 
 58. A certificate regvilar in form and legally issued by a competent 
 oflB-cer was honored by both Clerk and House, although, the successor of 
 that oflB.cer had issued conflicting credentials. — On October 15, 1877,^ at the 
 organization of the House, while the Members-elect, whose names had been placed 
 on the roll by the Clerk, were being sworn, Mr. Richard H. Cain, of South Carolina, 
 was challenged and stood aside. On the succeeding day, after the disposal of the 
 case of Mr. Joseph H. Rainey, of the same State, Mr. John B. Clarke, of Kentucky, 
 offered the following: 
 
 Resolved, That the question of the prima facie, as well as the right of M. P. O'Connor against Richard 
 H. Cain, contestants, respectively, claiming a seat in this House from the Second district of South Caro- 
 lina be referred to the Committee of Elections, hereafter to be appointed. And until such committee 
 shall have reported in the premises and the House has decided such question neither of said contestants 
 shall be admitted to a seat. 
 
 In this case Mr. Cain had the regular certificate, as did Mr. Rainey, and the 
 secretary of state (successor to the one who had issued the certificate) had issued an 
 impeaching certificate. 
 
 In the debate it was urged that the law of elections laid down the principle that 
 a certificate did not constitute a prima facie title to a seat in cases where there was 
 a second impeaching certificate. In this case the same officer issued the first cer- 
 tificate, and also the certificate that impeached the first. It did not matter that the 
 officer was not, in the two cases, the same person. Both certificates were from the 
 secretary of state of South Carolina. It was not sufficient to say that one came 
 from one political partisan and the other from another political partisan. Against 
 this it was urged again, as in the case of Rainey, that the certificate was regular in 
 form, in conformity with law, and must be followed. 
 
 ' First session Forty-fifth Congress, Journal, p. 16; Record, pp. 65-68.
 
 46 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 59 
 
 The House, by a vote of yeas 181, nays 89, adopted the following substitute: 
 Resolved, That Richard H. Cain be now sworn in as a Representative, etc. 
 
 The oath was accordingly administered to Mr. Cain. 
 
 59. Neither the Clerk nor the House honored credentials issued by a 
 lieutenant-governor in the temporary absence of the governor, revoking 
 regular credentials. — On October 15, 1877/ at the organization of the House 
 wliile the oath was being administered to the Members-elect, whose names had been 
 placed on the roll by the Clerk, objection was made to Mr. C. B. Darrall, of Louisiana, 
 and he stood aside. On the succeeding day Mr. Randall L. Gibson, of Louisiana, 
 by whom he had been challenged, stated that he had objected because the lieutenant- 
 governor of Louisiana, acting in the temporary absence of the governor, had issued 
 a certificate in effect revoking the certificate originally issued to Mr. Darrall, and cer- 
 tifying J. H. Acklen as the Representative. Mr. Gibson proposed the following 
 resolution, which was agreed to %vithout opposition: 
 
 Resolved, That Mr. Darrall, of the Third district of Louisiana, be sworn in, and that the credentials 
 of Mr. J. H. Acklen, of said district, with the papers thereunto attached, be referred to the Committee 
 of Elections, when appointed, with instructions to report upon his right to a seat in this House from said 
 district. 
 
 Mr. Darrall then appeared and took the oath. 
 
 60. The House confirmed the action of its Clerk who had enrolled 
 the bearers of credentials which conformed strictly to the law, although 
 less formal credentials had been issued at an earlier date by a recognized 
 governor. 
 
 In making up the roll the Clerk disregarded entirely credentials 
 issued by a person claiming to be governor, but who never exercised the 
 functions of that office. 
 
 On October 15, 1877,' at the organization of the House, after the roll had been 
 called by the Clerk,^ that official explained as follows: 
 
 There were received from the State of Louisiana three different sets of credentials, one set signed 
 by John McEnery as governor of Louisiana, bearing date December 20, 1876, and declaring certain per- 
 sons elected from the First, Fourth, and Sixth districts, but silent as to the persons elected from the 
 other districts of said State. Inasmuch, however, as said McEnery was never de facto governor of Louisi- 
 ana, and never in point of fact exercised or performed the functions of that office, it is not deemed 
 necessary to make here any statement concerning the regularity or irregularity of the credentials 
 coming from that source. 
 
 Another set of credentials is signed by William Pitt Kellogg as governor of Louisiana, with the seal 
 of the State attached, all of which not only bear different dates, but also reached the hands of the Clerk 
 at different times and through different channels, and simply declare the persons elected from each 
 of the districts of said State, respectively, except the Second district, as to which no certificate seems 
 to have been issued by said Kellogg in favor of any one. The law of Louisiana prescribing the character 
 of the credentials by which the elections of its Representatives in Congress shall be authenticated and 
 known provides as follows; 
 
 "That as soon as possible after the expiration of the time of making the returns of the election for 
 Representatives in Congress, a certificate of the returns of the election for such Representatives shall bo 
 
 ' First session Forty-fifth Congress, Journal, p. 20; Record, p. 69. 
 
 2 First session Forty-fifth Congress, Journal, pp. 20-24; Record, pp. 51, 52, 7.3-76, 85-88, 89-92. 
 
 ' George M. Adams, of Kentucky, Clerk.
 
 § 61 THE clerk's roll OF THE MEMBERS-ELECT. 47 
 
 entered upon record by the secretary of state, signed by the governor, and a copy thereof, subscribed by 
 said officers, shall be delivered to the persons so elected, and another copy transmitted to the House ot 
 Representatives of the United States, directed to the Clerk thereof." 
 
 These credentials signed by Governor Kellogg are in no sense a compliance with the requirements 
 of the laws of Louisiana. They do not even purport to be entered on the record by the secretary of state 
 and there signed by the governor, but are, on the contrary, a simple declaration by him that certain 
 persons are elected without even stating the sources of his infonnation, and no more constitute creden- 
 tials within the meaning of the laws of Louisiana than a simple statement from the treasurer or other 
 State official would be. 
 
 The other set of credentials is signed by Francis P. Nichols as governor of Louisiana, and Oscar 
 Arroyo as assistant secretary of state, with the seal of the state attached. All of them bear date February 
 27, 1877, and all of them reached the hands of the Clerk at the same time, and through the channels pre- 
 scribed by law. They declare the persons elected in each of the districts of Louisiana, respectively, and 
 conflict with the certificates signed by Governor Kellogg in reference to two districts only. These cre- 
 dentials comply, it is thought, with the laws of Louisiana in every respect, and the Clerk has accordingly 
 placed on the roll the names of persons contained in these credentials. 
 
 Accordingly, tlie Clerk had placed on the roll the names of Messrs. J. B. Elam 
 and E. W. Robertson, bearing the credentials of Governor Nichols. These names 
 were challenged, at the time of administering the oath, and Messrs. Elam and 
 Robertson stood aside. On October 16 and 17 their cases were considered on 
 motions that their cases, \^ath those of Messrs. George L. Smith and Charles E. Nash, 
 holding certificates from Governor Kellogg, should be referred to the Committee 
 of Elections with instructions to determine the prima facie right. 
 
 It was urged in behalf of the Kellogg certificates that Governor Kellogg was 
 indisputably governor de facto, that the returning board under the law having 
 jurisdiction made returns of the election of November, 1876, and that the governor 
 on those returns on December 27, 1876, issued certificates in form the same as used in 
 years previous and recognized by the House as sufficient in the Forty-third Congress 
 and on other occasions. Furthermore, it was urged that the certificates of Governor 
 Nichols, issued after the Kellogg government expired, were based on the canvass 
 of a new returning board provided for by a law passed after Governor Nichols 
 came in antl after the election, and that that returning board did not in fact have 
 the rettims before it. 
 
 On behalf of the Nichols certificates it was urged that the House, in deter- 
 mining prima facie right, had no right to travel outside of the record presented on 
 the face of the certificates. And on the face of the certificates the credentials of 
 Governor Nichols were exactly according to the requirements of law, and the 
 credentials of Governor Kellogg were not. The full language of the two forms of 
 certificates were presented to show that the Nichols certificate corresponded exactly 
 to the technical requirements of the law, while the Kellogg certificate did not. 
 
 The House in the case of Mr. Elam adopted a substitute providing that he should 
 be sworn in by a vote of 144 yeas to 119 nays. 
 
 Mr. Elam accordingly appeared and took the oath. 
 
 In the case of Mr. Robertson similar action was taken without any roll call, 
 and the oath was administered. 
 
 61. It has been held that there is no roll of Delegates which the 
 Speaker is obliged to recognize at the time of swearing in Members-elect
 
 48 PRECEDENTS OF THE HOUSE OF KEPEESENTATIVES. § 61 
 
 at the organization of the House. — On December 5, 1881,^ during the organ- 
 ization of the House, the Speaker announced that all the Members had been sworn 
 in and that the next business would be the election of a C'lerk. 
 
 Mr. Martin Maginnis, Delegate from Montana, rising to a question of privilege, 
 asked if the next business in order was not the swearing in of the Delegates from 
 the Territories. 
 
 The Speaker ^ said : 
 
 The next business in order to complete, under the law, the organization of the House is the election 
 of a Clerk. The matter of swearing in the Delegates will follow. 
 
 On December 6 all the Delegates were sworn in except the Delegate from 
 Utah. It seems that the name of Mr. George Q. Cannon had been placed on the 
 roll by the Clerk of the preceding House.^ The governor of the Territory, however, 
 had given a certificate of election to Mr. Allen G. Campbell. 
 
 The Speaker stated that there were two certificates held, respectively, by two 
 different gentlemen, and this involved a question which could not be determined 
 in advance by either the old or the new Clerk. The Clerk of the preceding House 
 was required to make up the roll of Members by States. But that obligation did 
 not extend to a roll of Delegates from the Territories. There was no roll of the 
 Delegates from the Territories which the Chair was bound to recognize. 
 
 Mr. Dudley C. Haskell, of Kansas, offered this resolution: 
 
 Resolved, That Allen G. Campbell, Delegate-elect from Utah Territory, is entitled to be sworn in 
 as a Delegate to this House on his prima facie case. 
 
 Mr. Samuel S. Cox, of New York, made the point of order that the roll was in 
 existence and that under the law the names of Members and Delegates whose 
 names were on the roll should be sworn in unless objection should be made. He 
 quoted the Revised Statutes as follows: 
 
 Sec. 31. Before the first meeting of each Congress the Clerk of the next preceding House of Repre- 
 sentatives shall make a roll of the Representatives-elect, and place thereon the names of those persons, 
 and of such persons only, whose credentials show that they were regularly elected in accordance with 
 the laws of their States, respectively, or the laws of the United States. 
 
 Sec. 38. Representatives and Delegates-elect to Congress, whose credentials in due form of law 
 have been duly filed with the Clerk of tlie House of Representatives, in accordance with the provi- 
 sions of section thirty-one, may receive their compensation monthly, etc. 
 
 After debate the Speaker said: 
 
 The Chair regards this question as one of importance, because in some view its decision may be 
 regarded as a guide to the action of the Clerk hereafter. Should the Chair decide with reference to these 
 Delegates that the Clerk had the right to put their names on the roll and in that way control to some 
 extent the matter of their being sworn in, such decision might affect future cases. 
 
 As the Chair understands it, there is a difference between the swearing in of a Member and the 
 swearing in of a Delagate, because at all stages, even though the Clerk may place upon the roll the name 
 of a Member of Congress from a State, the House might decide not to swear him in, notwithstanding 
 his name is on tliat roll. We are therefore dealing here with a question that stands exactly as though 
 there was before the House a Member from a State in regard to whose certificate there was a contest. 
 
 ' First session Forty-seventh Congress, Record, pp. 14, 23, 38. 
 
 ^ J. Warren Keifer, of Ohio, Speaker. 
 
 ^ See House Report No. 557, p. 12, first session Forty-seventh Congress.
 
 § 62 THE clerk's roll of the members-elect. 49 
 
 The Chair reads section 31 of the Revised Statutes in the light of the object of that section, which 
 was to repose power somewhere, to confer some authority, to make up a roll of Members to be called 
 at the beginning of Congress, so that the House might be enabled to take the first step in its organiza- 
 tion; that is, the election of a Speaker, and following that, perhaps, after the Members are sworn in, 
 the election of a Clerk. There was no object in putting upon such a roll the names of Delegates, who 
 have no right to vote, unless the Congress of the United States proposed to vest in the outgoing Clerk 
 the sole power of determining who was entitled to seats in the incoming Congress. As the Chair under- 
 stands it, that power has been vested nowhere, by law at least; not in the Speaker, and certainly not 
 in the Clerk, but is left where it belongs, to be determined under the Constitution and laws by the 
 House of Representatives. 
 
 The language of section 31, which has been so often read, clearly indicates that it was intended 
 to direct that there should be placed upon the roll the names of Members of Congress elected under the 
 "laws of their States, respectively," not under the laws relating to Territories. It is true the section 
 refers to their being elected under "the laws of the United States;" and section 4, of Article I, of the 
 Constitution of the United States provides that laws may be passed by Congress directing the mode 
 of electing Members of Congress from States. In the opinion of the Chair, that power also rests in 
 Congress, if it chooses to exercise it. 
 
 Section 38 of the Revised Statutes, so much relied upon by some Members, refers, to use the lan- 
 guage of the section, to "credentials in due form of law of Representatives and credentials filed with the 
 Clerk of the House of Representatives." These words are used also, "in accordance with the provi- 
 sions of section 31." A careful reading of section 31 of the Revised Statutes will show nothing at all 
 in that section on the subject of filing credentials. It is a singular fact that section 38 refers to a section 
 that contains nothing upon the matter of filing credentials. It furnishes us no guide, no reason, by 
 implication or otherwise, for the inference that Delegates, as well as Mem\)ers, were included in the 
 words of section 31. The Chair therefore overrules the point of order made by the gentleman from 
 New York. 
 
 62. It was held that under the law of 1867 the Clerk had no authority 
 to make up the roll of Delegates.— On March 5, 1867,^ on the second day of the 
 session and after the Members had been sworn in, a question arose as to the swear- 
 ing in of Delegates, and after debate the Speaker^ said: 
 
 Until the enactment of the law under which this Congress has assembled and organized, the Clerk 
 placed upon the roll the names of such as he saw proper to place there * * ». The law states that 
 the Clerk shall place on the roll only the names of Representatives from those States represented in 
 the preceding Congress' • * *. The Chair has conferred with the Clerk upon the subject, and the 
 Clerk says that he does not think he has the right under the law to decide upon the prima facie cre- 
 dentials of Delegates or place their names upon the rolls without further direction of the House. 
 
 Later the House ordered the names of such delegates as had not contests for 
 their seats pending to be placed on the roll, and they took the oath. 
 
 63. The Senate, after debate, permitted a claimant to a seat to w^ith- 
 draw his credentials. — On December 14, 1875,^ the Senate debated at length the 
 propriety of allowing a claimant for a seat to withdraw his credentials. The 
 vote was finally in favor of allowing the withdrawal. 
 
 ^ First session Fortieth Congress, Globe, p. 7. 
 ^Schuyler Colfax, of Indiana, Speaker. 
 
 'This law, dated February 9, 1867, provided for the making up of the roll by the Clerk (14 Stat. L. 
 p. 397). It is not now in force. 
 
 * First session Forty-fourth Congress, Record, pp. 200-2-04. 
 
 5994— VOL 1—07 4
 
 Chapter III. 
 
 THE PRESIDING OFFICER AT ORGANIZATION. 
 
 1. Clerk calls House to order and presides. Sections 64, 65.' 
 
 2. Election of a chairman in place of Clerk. Sections 66, 67. 
 
 3. Early practice of Clerks to decide questions of order. Sections 68-72. 
 
 4. Later practice as to authority of Clerk. Sections 73-80.- 
 
 64. A rule — which, however, is not operative at the time the House 
 is organized — provides that the Clerk shall call the new House to order 
 and preside until the election of a Speaker. 
 
 At the organization of the House the Clerk calls the roll of Members 
 by States in alphabetical order. 
 
 Pending the election of a Speaker or a Speaker pro tempore the Clerk 
 preserves order and decorum and decides questions of order, subject to 
 appeal. 
 
 Present form and history of section 1 of Rule III. 
 
 Section 1 of Rule III jirovides: 
 
 The Clerk shall, at the commencement of the first session of each Congress, call the Members to 
 order, proceed to call the roll of Members by States in alphabetical order, and, pending the election 
 of a Speaker or a Speaker pro tempore, call the House to order, preserve order and decorum, and decide 
 all questions of order subject to appeal by any Member. 
 
 This rule was adopted on January 27, 1880,^ in Committee of the Whole, while 
 the revised code was under consideration. The committee had at first recom- 
 mended a section providing only that the Clerk should, pending the election of a 
 Speaker, preserve order and decorum and decide all questions of order subject to 
 appeal to the House, taking, in fact the latter half of the old rule, 146, which dated 
 from March 19, I860,* and provided: 
 
 * * * and pending the election of Speaker, the Clerk shall preserve order and decorum, and 
 he shall decide all questions of order that may arise, subject to an appeal to the House. 
 
 ' Thanked by the House for presiding. Section 222. 
 
 ^ Decisions as to motions to correct the roll and appeals. (See sec. 22 of this volume.) Declines 
 to open a communication addressed to the Speaker. Section 47. 
 ^Second session Forty-sixth Congress, Record, p. 5.55. 
 
 * First session Thirty-sixth Congress, pp. 1211, 1237. 
 
 50
 
 § 65 THE PRESIDING OFFICEK AT ORGANIZATION. 51 
 
 As the rules are not adopted until after the Speaker is chosen, this rule is evi- 
 dently of persuasive effect onh" at the time of organization. 
 
 65. In 1820 there arose a question as to the right of the Clerk, pre- 
 siding- during organization, to rule a motion out of order. — On November 15, 
 1820,' aft«r twenty-one ineffectual ballotings for Speaker, under the rule which 
 provided that "a majority of the votes given shall be necessary to an election; 
 and, when there shall not be such a majority on the first ballot, the ballot shall be 
 repeated until a majority be obtained," Mr. Peter Little, of Maryland, moved a 
 resolution that the lowest on each ballot should be dropped at the succeeding ballot, 
 and that any votes given for such lowest person should not be taken into account. 
 
 The Clerk of the House ^ declared that, imder the rules of the House which 
 prescribed the mode of election by ballot, he could not receive this motion. 
 
 Mr. John Randolph, of Virginia, protested against what he pronounced an 
 assumption of power on the part of the Clerk, and asserted the right of any Member 
 to propound any question to the House through the Clerk, or from himself if he 
 thought proper. Mr. Little asserted his right to make the motion, but waived the 
 right to save time. 
 
 66. In 1837 a proposition was made that the Members-elect choose 
 one of their number to preside during organization; but it was laid on the 
 table and the Clerk of the last House continued to act. — On September 4. 
 1837,^ at the organization of the House, the Clerk of the last House was calling the 
 roll of Members-elect by States, when, in the State of Massachusetts, the name 
 of Mr. Caleb Cushing was called. Mr. Cushing arose in his place and said that 
 before responding he wished to say a few words in explanation. He saw before 
 liim many Members who were said to be elected, but there was no authentic knowl- 
 edge on the subject. They were not, in his opinion, Members of the House until a 
 Speaker had been elected and they had qualified. He was aware that it had 
 been the usage of the House that the Clerk should prepare a roll as he had done, 
 should call the Members individually, and should also officiate at the organization 
 of the House. The standing rule of the House provided that he should be Clerk 
 until a successor should be appointed. But the arrangement wliich should be 
 adopted would be for the gentlemen present to be organized under the presidency 
 of one of their own number. 
 
 The roll call having been completed and a question as to tlie election of two 
 Members from Mississippi having been raised, Mr. R. Barnwell Rhett, of South 
 Carolina, submitted this motion: 
 
 That Lewis Williams, of North Carolina, being the oldest Member of the House of Representatives, 
 be appointed chairman of this House, to serve until the House be organized by the election of a Speaker. 
 
 Mr. Williams opposed this motion, and urged that the Clerk be allowed to pre- 
 side over the organization as he had from the beginning of the Government. 
 To this Mr. Henry A. Wise, of Virginia, replied that there was no Clerk of this House, 
 and that the rule of the last House continuing the Clerk until his successor should 
 be elected had no force in this House. 
 
 ' .Second session Sixteenth Congress, Annals, pp. 437, 438. 
 
 ^Thomas Dougherty, of Kentucky, Clerk. 
 
 ^ First seasion Twenty-fifth Congress, Journal, p. 4; Globe, pp. 1-3.
 
 52 PKECEDENTS OF THE HOUSE OF EEPEESENTATIVES. § 67 
 
 On motion of Mr. Isaac Toucey, of Connecticut, the motion of Mr. Rhett was 
 laid on the table without a division. 
 
 67. The Clerk of the last House having declined to put any motions 
 except the motion to adjourn during organization of the new House, the 
 Members-elect chose one of their number chairman. 
 
 The Clerk presiding during organization declined to put a question, 
 ■whereupon a Member-elect put the question from the floor. 
 
 A clerk, presiding at the organization, having proposed to read a paper 
 explaining his reasons for certain acts, the Members-elect declined to 
 permit him to do so. 
 
 Discussion of the functions of the Clerk of the former House presid- 
 ing at the organization of a new House. 
 
 On December 2, 1839/ the day fixed by the Constitution for the meeting of 
 Congress, at 12 o'clock meridian, Hugh A. Garland, Clerk to the late House of 
 Representatives, called the Members to order; and suggested that, if not objected 
 to, he would proceed to call over a list of Members of the Twenty-sixth Congress 
 for the purpose of ascertaining who were present and whether a quorum was in 
 attendance. 
 
 No objection being made, the Clerk commenced the call of the roll by States, 
 beginning with the State of Maine; and, having called as far as the State of New 
 Jersey, and having called the name of Joseph F. Randolph from that State, he rose 
 and stated that five seats from New Jersey were contested; that it was not for him 
 to undertake to decide who were entitled to them; and that, if it was the pleasure 
 of the House, he would pass by the further call from New Jersey, and complete the 
 call of the roll, when he would submit the documents and evidence in his possession 
 to the House, who alone were capable of deciding upon them. 
 
 This course was objected to by Mr. William Cost Johnson, of Marj'land. 
 
 The reading of the credentials of John B. Aycrigg, William Halstead, John P. B. 
 Maxwell, Charles C. Stratton, and Thomas Jones Yorke, was then called for; and 
 being read, Mr. Charles F. Mercer, of Virginia, asked that the law of New Jersey 
 relative to elections of Members of the House of Representatives of the United 
 States be read; when Mr. Cave Johnson, of Tennessee, asked that the credentials 
 of Philemon Dickerson, William R. Cooper, Joseph Kille, Daniel B. Ryall, and 
 Peter D. Vroom, claiming to be Members of the House of Representatives of the 
 United States from the State of New Jersey in place of John B. Aycrigg and his 
 associates, be also read. 
 
 Before either the law or credentials were read, debate arose. It was urged that 
 as Messrs. Aycrigg and his associates held credentials from the governor of New 
 Jersey, under the broad seal of the State, and precisely similar to the credentials by 
 virtue of which Mr. Randolph of that State had already been called, they had a 
 prima facie right to be called and participate in the organization of the House. 
 There was objection to this, and a proposition that the subject of the New Jersey 
 contest be laid aside until the roll of the residue of the Members should have been 
 called. 
 
 'First session Twenty-sixth Congress, Journal, pp. 1-6; Globe, pp. 1-20.
 
 § 67 THE PRESIDING OFFICER AT ORGANIZATION. 53 
 
 The Clerk, in the course of the day's proceedings, declared that, under the pres- 
 ent imperfect state of the organization of the House — no quorum having answered 
 to their names, and there being no rules in existence for the government of the body — 
 he did not feel authorized, under these circumstances, to put any question to the 
 House except by general consent. 
 
 A motion being made to adjourn, the Clerk decided that he could not submit 
 that motion to the House, and so the House, by general consent, adjourned imtil 
 the next day, without a question put to that effect. On the succeeding day, also, 
 the House adjourned wathout motion put by the Clerk; but on December 4, after a 
 motion to adjourn had been made, the Clerk stated that, on the two preceding days, 
 he had not adverted to that clause of the Constitution of the United States which 
 provides that less than a quorima may adjourn from day to day. Having now 
 adverted to that clause, he had changed the opinion heretofore given, that he could 
 not, in the present state of the organization of the House, put the question on an 
 adjournment; that he would now put a question on a motion to adjourn, but on no 
 other motion. 
 
 On December 3 the Clerk stated that he had reduced his reasons for the course 
 he had taken to writing, and asked permission of the House to read them. This 
 was refused. 
 
 In the discussion which arose as to the functions of the Clerk, Mr. Henry A. Wise, 
 of Virginia, speaking of the present Clerk, said it was true that he was not techni- 
 cally an officer of the House. But by the law of usage and necessity he was always 
 permitted to hold the office which he now held. He was the quondam Clerk of the 
 last Congress, and presented himself here, firstly to render to his successor the 
 records of the office; and, secondly, he was here by the law of usage. The ordinance 
 of 1785 imposed upon the Clerk (Secretary) of the preceding Congress the duty of 
 keeping a roll of Members of Congress, and of calling over that roll at their meeting. 
 There was also a resolution of 1791 relating to this duty of the Clerk. Thus the 
 Clerk was bound by the law of usage. 
 
 Mr. John White, of Kentucky, contended that the ordinance of 1785 and the 
 resolution of 1791 were of no more binding effect than the rules of the last House. 
 
 Mr. Daniel B.Barnard, of New York, contended that the Clerk was not only the 
 Clerk of the last House of Representatives, but also the Clerk of this House. And 
 he would so continue until his successor should be appointed. It was a cardinal 
 principle of the common law that the public interests should never be permitted to 
 suffer for want of an incumbent to fill important offices, and by the conmion as well as 
 by the parliamentary law the functionary holds over until liis successor is appointed. 
 It was in analogy to the common law that the parliamentary rule was adopted that 
 the clerk of the House of Commons should hold over until his successor should be 
 appointed. This was the settled parliamentary rule in this country as well as in 
 England. The Clerk, in assuming his seat and calling the House to order, was 
 doing nothing more than he was fully warranted in doing. More than that, he 
 undoubtedly had the authority to put questions — any question which the House in 
 its partially disorganized condition might entertain. 
 
 The Clerk still persisted in declining to put any question except the motion to 
 adjourn. Various propositions were submitted: To call the uncontested names,
 
 54 PBECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 68 
 
 and, a quorum of such having been ascertained, to let them decide the contested 
 cases before proceedin<jj to the election of a Speaker; to choose a temporaiy Speaker 
 and a committee of elections, for the consideration of the contests, and after the 
 settlement to choose a permanent Speaker; to proceed and call the New Jersey 
 claimants having the certificates from the governor; to allow those to whose election 
 there was no objection to pass upon the right of challengetl gentlemen to participate 
 in the organization. 
 
 The Clerk putting the question on none of these propositions, Mr. John Quincy 
 Adams renewed the proposition to call the names of the gentlemen having the cer- 
 tificates from the governor of New Jersey, and on this proposed to put the question 
 liimself. 
 
 At tliis point Mr. R. Barnwell Rhett, of South Carolina, asked the Clerk if he 
 would put questions to the House. To this the Clerk rephed that he would put 
 no question except to adjourn; but said that, with the consent of the House, he 
 would put questions as chairman of a meeting of the gentlemen present, if instructed 
 to do so by the Members present, but he would not do so as Clerk of the House of 
 Representatives. 
 
 Mr. William Cost Johnson objected to liis putting questions as chairman. 
 
 Mr. Rhett then moved that Mr. Lewis Williams, of North Carolina, the oldest 
 Member of the House, be appointed Chairman of the House, to serve until the election 
 of a Speaker. Mr. Williams declining to serve, Mr. Rhett read in his place the 
 following resolution: 
 
 Resolved, That the Hon. John Quincy Adams be appointed Cliairman of this House, to serve until 
 the election of a Speaker. 
 
 Ml'. Rhett then put the question on the said resolution to the Members, and it 
 passed in the affirmative. 
 
 Mr. Adams was then conducted to the chair by two Members of the House, and 
 proceeded to discharge the duties of the position. 
 
 Mr. Charles F. Mercer, of Virginia, then moved that the rules of the late House 
 of Representatives, so far as applicable to this body in its present state of organiza- 
 tion, be the rules for the government of its proceedings. 
 
 And the question on this motion being put by the Chairman, it passed in the 
 affirmative imanimously. 
 
 68. In the earlier days the Clerk of the last House presiding at the 
 organization declined to decide questions of order and referred them to the 
 House. — On December 4. 1843/ at the lime of the organization of the House and 
 after the presence of a quorum had been amiounced, but before the election of a 
 Speaker, Mr. Daniel D. Barnard, of New York, arose and proposed to read in his 
 place a paper m the nature of a protest of liimself and other Members of the House 
 against the participation of the Representatives of certain States in the election of 
 Speaker. 
 
 Objection was made that it was not in order to read the paper pending the 
 election of Speaker. 
 
 'First session Twenty-eighth Congress, Journal, p. 7; Globe, pp. 2, 3.
 
 § 69 THE PRESIDING OFFICER AT ORGANIZATION. 55 
 
 The Clerk ' begged respectfully to state to the House that, in its present state, he 
 should feel it to be his duty to put the question on granting leave, to the House, and 
 not, in his humble capacity, undertake to decide a question of that magnitude. 
 
 A motion being submitted, the Clerk put the question that Mr. Barnard have 
 leave to read the paper, and the motion was decided in the negative, 59 ayes and 
 124 noes. 
 
 69. On December 21, 1849,= before the election of a Speaker, Mr. Samuel W. 
 Inge, of Alabama, moved that the resolution adopted on the 14th instant, prohibiting 
 debate until the election of a Speaker, be rescinded. 
 
 ilr. Robert Toombs, of Georgia, ha\'ing taken the floor, proceeded to debate the 
 motion. 
 
 Mr. Joseph M. Root, of Ohio, called Mr. Toombs to order for debating. 
 
 Mr. Toombs declined to surrender the floor, but proceeded in spite of the protests 
 of Members. 
 
 The Clerk ^ requested Mr. Toombs to allow the motion to be put. 
 
 Mr. Toombs declined to jield, and proceeded amidst much confusion, declaring 
 that the Clerk could not put the question while he held the floor. 
 
 Mr. John Van Dyke, of New Jersey, called Mr. Toombs to order. 
 
 The Clerk (Mr. Toombs continuing to speak) put the question whether the 
 gentleman from Georgia, being called to order, should be allowed to proceed. 
 
 Mr. Toombs continued to speak, but the Clerk, having put the question, declared 
 that the point of order was sustained by the House, and that the gentleman from 
 Georgia was decided out of order. 
 
 Mr. Toombs continued to speak, but the Clerk proceeded to put the question 
 on the motion of Mr. Inge, and the question being put, the yeas and nays were 
 demanded and ordered. 
 
 The Clerk thereupon began to call the roll, and Mr. Toombs continued his 
 speech, concluding during the roll call. 
 
 70. In the Thirty-first Congress the House did not choose a Speaker until 
 December 22, 1849, nineteen days after the assembling of the Congress. The Clerk ^ 
 of the preceding House presided during this time. He did not decide questions of 
 order, but submitted them to the House for decision. Thus, on December 5 ^, a 
 motion was made to lay a pending resolution on the table, and the question was 
 asked whether the motion to lay on the table was debatable, no rules having been 
 adopted. The Clerk referred the question to the House, which decided that the 
 motion was not debatable. 
 
 Again, on December 6 ^ the question arose again, and Mr. William Duer, of 
 New York, made the point of order that the motion to lay on the table was not 
 debatable. The Clerk said that it was a point for the House to decide. The Clerk 
 could not call any gentleman to order. 
 
 ' Matthew St. Clair Clarke, Clerk. 
 
 ^ First session Thirty-first Congre.ss, Globe, pp. 61, 62. 
 
 ^Thomas J. Campbell, Clerk. 
 
 ■•First session Thirty-fir.=t Congress, Journal, p. 34; Globe, pp. 6, 8, 17. 
 
 ^ Globe, p. 8.
 
 56 PRECEDENTS OF THE HOUSE OF KEPRESENTATIVES. § 71 
 
 Again on December 11', a motion for a call of the House was pending and a 
 motion to amend it was made. Mr. Jacob Thompson, of Mississippi, asked if the 
 motion was in order. The Clerk declared that it was for the House and not the 
 Clerk to decide the question of order. 
 
 71. On December 5, 1859,= before the election of a Speaker, Mr. John B. 
 Clark, of Missouri, rose and proposed to submit some remarks. 
 
 Mr. Henry C. Burnett, of Kentucky, raised the question of order that debate 
 was not in order since no question was before the House. 
 The Clerk 'said: 
 
 The Clerk having no power to decide the point of order which has been raised, will submit it to 
 the House. * * * The Clerk will state that he has carefully examined this subject, and can find 
 no authority conferred upon him as Clerk of the former House, except to put questions, when raised, 
 to the House for its decision, fie will not, therefore, take upon himself the power to decide this question. 
 
 Mr. Clark having been permitted to proceed, Mr. Israel Washburn, jr., of 
 Maine, made the point of order that the gentleman from Missouri must confine 
 himself to the question. 
 
 The Clerk said: 
 
 The Clerk can not undertake to decide whether the gentleman from Missouri is confining himself 
 to the question of order or not. If the point of order be insisted on, he must submit the question to 
 the House. 
 
 72. On December 6, 1859,^ before the election of a Speaker, Mr. Horace May- 
 nard, of Tennessee, asked of the Clerk whether he would make decisions of questions 
 of order, or refer them to the House to be settled by majorities. 
 
 The Clerk' said: 
 
 The Clerk, in answer to the inquiry of the gentleman from Tennessee, begs leave to read from the 
 Manual, in order that the House may understand the power which the Clerk has in deciding questions 
 which may arise. This is the only authority the Clerk has been able to find upon the subject. 
 
 " When but one person is proposed and no objection made, it has not been usual in Parliament to 
 put any question to the House; but without a question the Members proposing to conduct him to the 
 Chair. But if there be objection, or another proposed, a question is put by the Clerk. As are also 
 questions of adjournment." 
 
 " That being all that the Clerk can find, he does not feel authorized to decide questions of order as 
 they arise." 
 
 73. Discussion of the functions and authority of the Clerk of the 
 former House presiding at the organization of the new House. — On Decem- 
 ber 8, 1859,^^ before the election of a Speaker, a question arose as to the power of the 
 Clerk of the preceding House, who was presiding, to decide questions of order. The 
 Clerk " liad repeatedly declined to decide such questions, and when the precedent 
 of December 26, 1835, was quoted, explained that the Clerk in the Thirty-fourth 
 Congress, while suggesting his opinions on points of order, in no instance claimed 
 the right to make a final decision. 
 
 1 Globe, p. 17. 
 
 ^ First session Thirty-sixth Congress, Globe, pp. 2, .3. 
 
 'James C.Allen, Clerk. 
 
 * First session Thirty-sixth Congress, Globe, p. 19. 
 
 ^ First session Thirty-sixth Congress, Globe, p. 66. 
 
 ° James C. Allen, of Illinois, Clerk.
 
 § 74 THE PRESIDING OFFICER AT ORGANIZATION. 57 
 
 Mr. John S. Millson, of Virginia, in the discussion of this question, said: 
 
 The Clerk is not the presiding officer of this House in any sense of the word. \Mien the Clerk puts a 
 question to the House, it is the House putting a question to itself, selecting its o\5Ti officer as its organ. 
 WTien the Clerk propounds a question to this House, he has no more control over the House and exercises 
 no other function than the reading clerk when he calls the yeas and nays. It is the House calling the 
 roll through its own appointed agent. No man can preside over the House of Representatives who is not 
 a Member of the House of Representatives. It is in this respect that we differ from the Senate of the 
 United States, over which, by the Constitution, the Vice-President of the United States is appointed to 
 preside. The mistake has originated altogether from the convenient usage of permitting, by the suffer- 
 ance of the House, the Clerk of the former House to propound questions, for in the absence of any other 
 constituted agent there must be some one to address the House; but the person so speaking is not a part 
 of the House, hut simply the mouthpiece of the House. And I submit to gentlemen, if they would 
 protect the dignity of this body, that they would never consent to regard the Clerk in any other light 
 than as one who for convenience sake is permitted to propound questions to the House, just as the reading 
 clerk is permitted for convenience sake to call the names of Members when the yeas and nays are ordered. 
 
 On the other hand, Mr. Horace Maynard, of Tennessee, voiced the opposite 
 opinion : 
 
 It is not Mr. -Mien, as I understand, who is temporarily the presiding officer of the House; it is the 
 Clerk of the last House, who by law is placed for the time being as the presiding officer over this unorgan- 
 ized body; who is placed there for the very purpose of giving it organization; who is placed there with 
 the power of general parliamentary law in his hands to exercise, and who is, to all intents and purposes, 
 the presiding officer of the House as long as it remains in its present inorganic condition. '^Tien that 
 organization shall be effected by a selection of a gentleman of our own body as the Speaker and presiding 
 officer, the Clerk then becomes for that purpose functus officio, but till that time he is, ex vi termini, 
 compelled to be the presiding officer of the House; and, like any other presiding officer, he must, under 
 the parliamentary law, exercise the power which that law confers upon him and clothes him with. 
 One of these powers is to decide questions of order as they arise; and unless practically he decides these 
 questions — although he may not formally do it — ^the wheels of business will be blocked, and we could 
 not go forward a single step. He is, unconsciously perhaps, deciding questions of order continually. 
 He does so in giving the floor to this or the other Member, in asking a Member's permission to allow an 
 interruption, and in many other ways which I need not instance. 
 
 74. Before the election of a Speaker the Clerk recognizes Members. — 
 Before the election of a Speaker in 1859 the Clerk, Mr. James C. Allen, of Illinois, 
 recognized Members who were to address the House, and when complaint was made 
 by a Member, on December 21, explained that he was governing the recognitions so 
 as to give an opportunity to all Members who applied for time.' 
 
 75. In 1855, while the Clerk was presiding at the organization of 
 the House, a question of order was decided by him, and the decision sus- 
 tained. — On December 20, 185.5,' before the election of a Speaker or the adop- 
 tion of rules, the House was considering a proposition that the Hon. James L. Orr, 
 of South Carohna, be invited to preside over the House until the election of Speaker, 
 and on this Mr. Le\\as D. Campbell, of Ohio, had demanded the previous question. 
 
 Pending this, Mr. George W. Jones, of Tennessee, moved that the House take a 
 recess until 11 o'clock and 59 minutes to-morrow. 
 
 Mr. Joshua R. Giddings, of Ohio, submitted as a question of order that it was 
 not competent to take a recess pending the demand for the previous question. 
 
 ' First session Thirty-sixth Congress, Globe, p. 209. 
 
 ^ First session Thirty-fourth Congress, Journal, p. 181; Globe, p. 87.
 
 58 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 76 
 
 The Clerk ' decided that the motion to take a recess was in order. 
 Mr. Giddings having appealed, the appeal was laid on the table. 
 
 76. In 1863, at the organization of the House, the hold-over Clerk 
 disclaimed authority to enforce the rules, but decided points of order as 
 authorized by a rule of the last House. — At the organization of the House on 
 December 7, 1863,' Clerk Emerson Etheridge held that he had no power to preserve 
 order, having no power to enforce the rules. No rules had been adopted, but the 
 rules Nos. 146, 147, dated March 19, 1860, provided that "these rules shall be the 
 rules of the House of Representatives of the present and succeeding Congresses, 
 unless otherwise ordered," and that "pending the election of a Speaker, the Clerk 
 shall preserve order and decorum, and shall decide all ([uestions of order that may 
 arise, subject to appeal to the House." ^ 
 
 77. On December 7, 1863,^ the Clerk ■> of the last House presided at the 
 organization of the House, and ruled on points of order on two several cases. No 
 objection was made, and in the first case no appeal was taken. In the second case 
 Mr. Thaddeus Stevens, of Pennsylvania, appealed from the decision of the Clerk, 
 but withdrew his proposition before a vote on the appeal. 
 
 78. Before the completion of the organization of the House, in 1869, 
 the Clerk refused to entertain a motion referring to a committee a sub- 
 ject relating to the election of a Member. — On March 4, 1869," at the organ- 
 ization of the House, after the roll of Members-elect had been called and the pres- 
 ence of a quorum had been announced, Mr. George W. Woodward, of Pennsylvania, 
 offered this resolution as a question of privilege: 
 
 Resolved, That the returns of the election from the Twenty-first district of Pennsylvania be referred 
 to the committee of elections to be appointed, witli inc^tructions to report at as early a day as practicable 
 which of the claimants to a seat in this House has the prima facie right thereto. 
 
 Mr. Glenni W. Scofield, of Pennsylvania, made the point of order that the 
 Clerk could not, at the organization, entertain a motion for reference to a committee. 
 The Clerk' sustained tlie point of order.* 
 
 79. In 1869 the hold-over Clerk, basing his authority on the law of 
 1863, declined to entertain a question of order or an appeal pending the 
 motion to proceed to election of Speaker. — On March 4, 1869," at the time of 
 the organization of the House, the previous question had been ordered on the 
 motion to proceed to the election of a Speaker, when Mr. James Brooks, of New 
 
 ' John W. Forney, Clerk. 
 
 -First session Thirty-eighth Congress, Journal, p. 1051; Globe, p. 5. 
 
 ' The House has come definitely to the conclusion that one House may not impose its rules on a 
 succeeding House. (See sees. 6743-6745 of Vol. V of this work.) 
 
 * First session Thirty-eighth Congress, Globe, pp. 5, 6. 
 
 ' The Clerk was Emerson Etheridge. 
 
 ° First session Forty-first Congress, Globe, p. 3. 
 
 " Edward McPherson, of Pennsylvania, Clerk. 
 
 *For discussions in House and Senate on the law of 1866 relating to the organization of the House, 
 including the designations of the officers to act in case of the death, disability, etc., of the Clerk, see 
 Globe, second session Thirty-ninth Congress, pp. 66, 67, 379. 
 
 ^ First session Forty-first Congress, Globe, p. 4.
 
 § 80 THE PRESIDIlfG- OFFICER AT ORGANIZATION. 59 
 
 York, announced that he rose to a question of order, and proceeded to call atten- 
 tion to the alleged fact that the Clerk had omitted, in calling the roll of States, to 
 call the names of the Members from Georgia and Louisiana. 
 The Clerk 1 said: 
 
 The gentleman is out of order. The question is upon the adoption of the resolution that the House 
 now proceed to the election of Speaker. 
 
 Mr. Brooks having proposed to appeal, the Clerk declined to entertain the 
 appeal, and when Mr. Brooks persisted, directed liim to take his seat, saying: 
 
 The Clerk l^y law is Clerk of the House untU his successor is elected and qualified * * *. The 
 Clerk will taks pleasure in saying to the gentleman that he (the Clerk) is governed by the law of the 
 land and the rules of the House. * * * The Clerk has no desire whatever to make any decision 
 doing violence to the feeling of any gentleman of the House. He has no desire to do an act ofRcially 
 calctdated to bring the body into confusion, but at the same time he is compelled, under the obligations 
 which are resting upon him, bo to administer the law and the rules as to effect, as a prime duty, the 
 organization of the House. He regrets very much if any decision which he felt called upon to make 
 has been held by any of the gentlemen affected as an invasion of their personal rights, for it was not so 
 intended; and the Clerk begs, inasmuch as the question has proceeded thus far, that the persons indi- 
 cated as tellers may take their places and the organization be effected. 
 
 80. In 1867 the Clerk, acting under the law of 1863, declined to 
 entertain any proposition not consistent -with the organization of the 
 House. 
 
 The Clerk, presiding at the organization, has declined to entertain a 
 protest, although it related to the organization. 
 
 On March 4, 1867,- at the organization of the House, the Congress having 
 assembled in accordance with the act of January 22, 1867, the Clerk had called 
 the roll of Members-elect, and had announced the presence of a quonmi. 
 
 Mr. James F. Wilson, of Iowa, moved that the House proceed to the election 
 of a Speaker viva voce. 
 
 Mr. James Brooks, of Xew York, being recognized in debate, proceeded to pre- 
 sent the protest of Members of the minority party of the House aganist proceed- 
 ings for its organization until certain States should be represented. Mr. Brooks 
 asked that this protest be entered on the Journal. 
 
 The Clerk' said: 
 
 The Clerk declines to entertain any paper of the character of that indicated by the gentleman from 
 Xew York, or any other matter pending the action of the House. The Clerk is now acting under the 
 law; his duties are clearly prescribed, and it is impossible for him to entertain any motion or any busi- 
 ness not consistent with the organization of the House. 
 
 ' Edward McPherson, of Pennsylvania, Clerk. 
 ^ First session Fortieth Congress, Globe, pp. 3, 4.
 
 Chapter IV.' 
 
 PROCEDURE AND POWERS OF THE MEMBERS-ELECT IN 
 
 ORGANIZATION. 
 
 1. Forms of proceeding at organization. Section 81. 
 
 2. Status of House before organization. Section 82.' 
 
 3. Call of the roll of Members-elect. Sections 83-86. 
 
 4. Sessions, adjournment, etc., during organization. Sections 87-92.- 
 6. Adoption of rules. Sections 93-102.' 
 
 6. Participation of contesting delegations in organization. Section 103.* 
 
 7. Fixing the hour of daily meeting. Sections 104-117.' 
 
 8. Illustration of a body called to order at organization by an old member. Section 118. 
 
 9. The drawing of seats. Sections 119-121. 
 
 10. As to action by one House before the other is organized. Sections 122-126. 
 
 8 1 . Proceedings and forms at the organization of the House in a new 
 Congress. 
 
 Election of Speaker and other officers, administration of the oath to 
 Members and officers, notification of the President and Senate, and draw- 
 ing of seats at the beginning of a Congress. 
 
 Forms of procedure at the opening of the second or subsequent sessions 
 of a Congress. 
 
 When a new Congress assembles on the first Mondaj^ in December, the Members- 
 elect are called to order at 12 m. by the Clerk of the preceding House," standing at 
 his desk. After prayer by the Chaplain of the last House, the Clerk announces: 
 
 Representatives-elect: Under the provisions of the Constitution of the United States this is the 
 
 hour fixed by law for the meeting of the House of Representatives of the Congress of the United 
 
 States of America. The Clerk of the House of Representatives of the Congress vv-ill read the 
 
 names of those whose credentials show that they were regularly elected to this body in pursuance of 
 the laws of their respective States and of the United States.'' As the roll is called, following the alpha- 
 
 • See Volume VI, Chapter CLI. 
 
 ' Status with reference to transaction of business. (Sees. 6647-6(i.50 of Vol. V.) 
 
 ^ Adjournment for more than one day before organization. (Sec. 221 of this volume.) 
 
 ' A refusal to adopt rules until the Members-elect were sworn. (Sec. 140 of this volume.) 
 
 * See also cases of Letcher v. Moore (sec. 53 of this volume) and Ingersoll v. Naylor (sec. 803 of this 
 volume). 
 
 ' Discussion as to why the House of Representatives meets at 12 m. at its first sitting, before organi- 
 zation. (Sec. 210 of this volume.) 
 
 ° In accordance with section 1 of House Rule III. (See sec. 64 of this work.) In case the Clerk 
 can not for any reason officiate, the duties devolve on the Sergeant-at-Arms, and next upon the 
 Doorkeeper. (See Revised Statutes, sees. 32 and 33.) 
 
 ' This roll is made up in accordance with section 31 of the Revised Statutes. 
 60
 
 § 81 PROCEDUEE AND POWERS OF MEMBERS-ELECT IN ORGANIZATION. 61 
 
 betical order of the States, those present will please answer to their names, that we may discover if 
 there is a quorum present.' 
 
 When the roll call has been completed, the Delegates being called last, the 
 Clerk presents a tabulated statement of the changes in the membership that have 
 occurred since the regular election. 
 
 Then, if a quorum be present, the Clerk announces the fact, and declares that 
 the next business in order is the election of a Speaker. ^ Nominations are made 
 from the floor, simply by naming the candidates.^ 
 
 The House has for many years elected its Speaker by viva voce vote.* The Clerk 
 appoints four tellers, from the Members-elect, representing the parties making nomi- 
 nations,* who, seated at the Clerk's desk, make the record as each Member-elect, when 
 the roll is called, alphabetically, announces the name of his choice. The roll call 
 being completed, one of the tellers, usually the one first named, announces the result 
 of the vote, the Clerk having previously read over the names of those voting for each 
 candidate. 
 
 The Clerk, having restated the vote as reported by the tellers, announces that — 
 
 Mr. , a Representative from the State of , having received a majority of all the votes 
 
 cast, is duly elected Speaker of the House of Representatives of the Congress. 
 
 The Clerk then designates certain Members, usually the other candidates who 
 have been voted for, to conduct the Speaker-elect to the chair. 
 
 The Speaker-elect having taken the chair and addressed the House, the Clerk 
 designates the Member-elect present who has served longest continuously " as a 
 Representative to administer the oath of office to the Speaker-elect.' 
 
 ' Form used by Clerk James Kerr, of the Fifty-third Congress, in calling to order the House of the 
 Fifty-fourth Congress, December 2, 1895. (Congressional Record, p. 2.) 
 
 ^ See sections 6747-6750 of Volume V of this work for controversies as to transaction of business before 
 organization. Also see Congressional Record, first session Fifty-first Congress, p. 80, and first session 
 Fifty-fifth Congress, p. 15. 
 
 3 Sometimes a resolution to proceed to election of Speaker is adopted ; but very early as well as 
 very late precedents exist for proceeding without the resolution. See case December 8, 1829, when, 
 without resolution or motion, the House proceeded to ballot for Speaker. (First session Twenty-first 
 Congress, Journal, p. 7.) 
 
 * See section 187 of this work for rule relating to viva voce election and its origin. The rules, 
 however, are not adopted until the House is organized. 
 
 ^See Congressional Record, first session Fifty-fifth Congress, p. 15. 
 
 ^ This does not always seem to have been the custom. Thus, in 1815, the oath was administered 
 to Speaker Clay by Mr. Robert Wright, of Mar>-land, who was much younger as a Member than either 
 Nathaniel Macon, of North Carolina, who had served since 1793, or Richard Stanford, of the same State, 
 who had served since 1797, and both of whom were present. (First session Fourteenth Congress, Annals 
 p. 374.) 
 
 But on December 5, 1825, we find Speaker Taylor conducted to the chair by Mr. Thomas Newton, 
 of Virginia, "the father of the House," who also administered to him the oath. (First session Nineteenth 
 Congress, Journal, p. 8; Debates, p. 795.) Again, in 1829, Mr. Newton is spoken of as the father of the 
 House when he administered the oath to Speaker Stevenson. (First session Twenty-first Congress, 
 Debates, p. 471.) Again, in 1835, Mr. Lewis Williams, of North Carolina, "the oldest Member in the 
 House," administers the oath to Speaker Polk. (First session Twenty-fourth Congress, Journal, p. 8; 
 Debates, p. 1946.) Again, on December 16, 1839, Mr. Williams, "the oldest Member," administers the 
 oath to Speaker Hunter. (Journal, first session Twenty-sixth Congress, p. 80.) 
 
 ' This oath is the same as that administered to Members-elect. (See sec. 128 of this work.) It does 
 not seem to have been the invariable custom for the Speaker to address the House first. Thus, in 1815, 
 Mr. Clay took the oath first. (First session Fourteenth Congress, Journal, p. 7.)
 
 62 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 81 
 
 After the administration of the oath the Speaker administers the oath to the 
 Members-elect and Delegates,' who are usually called to the area in front of the 
 Speaker's desk several at a time, by States. The Delegates are sworn last. Mem- 
 bers of whose election there is no question, but whose certificates have not arrived, 
 may be sworn in by unanimous consent. 
 
 The election of the remaining officers of the House is next in order. The rule 
 prescribes that these elections shall be viva voce.^ It is usually accomplished, how- 
 ever, by the adoption of a resolution of five paragraphs, each in this form: 
 
 That , of the State of , be, and he is hereby, chosen of the House of 
 
 Representatives, 
 
 and relating to the Clerk, Sergeant-at-Arms, Doorkeeper, Postmaster, and Chaplain, 
 in the order named. 
 
 The minority party usually present their candidates in a similar resolution, 
 wliich they move as a substitute. 
 
 The Speaker having administered the oath of office to the officers elected, the 
 organization of the House is completed, whereupon the following resolutions are 
 presented and agreed to: 
 
 Resolved, That the Clerk be instructed to inform the President of the United States that the House 
 
 (if Representatives has elected , a Representative from the State of , Speaker, and 
 
 , a citizen of the State of , Clerk of the House of Representatives of the 
 
 Congress. 
 
 Resolved, That a message be sent to the Senate to inform that body that a quorum of the House 
 
 of Representatives has assembled; that , a Representative from the State of , has 
 
 been elected Speaker, and , a citizen of the State of , Clerk; and that the House is 
 
 ready to proceed to business. 
 
 Resolved, That a committee of three be appointed by the Speaker on the part of the House of Rep- 
 resentatives to join the committee appointed on the part of the Senate to wait on the President of the 
 United States and notify him that a quorum of the two Houses has assembled, and that Congress is 
 ready to receive any communication he may be pleased to make.' 
 
 Resolved, That until otherwise ordered the rules of the House of Representatives of the Con- 
 gress be adopted as the rules of the House of Representatives of the Congress.* 
 
 Resolved, That until otherwise ordered the daily hour of meeting of the House of Representatives 
 shall be 12 o'clock meridian. 
 
 Resolved, That the House do now proceed to draw seats for Members and Delegates of the present 
 
 Congress in pursuance of Rule XXXII of the House, and when names of Members absent from 
 
 the city or on account of sickness are called, that seats be selected for them by their colleagues.* 
 
 ' This order is according to the old form. (First session Second Congress, Journal, p. 434.) 
 
 ^See section 187 of this work. The rules, however, are not usually adopted until after the officers 
 are elected, the old rule that the rules should continue in force from Congress to Congress having been 
 dropped in the Fifty-first Congress. See debate of May 15, 1797, where the point was raised and dis- 
 cussed that the rules of the former House were not binding in the election of a Clerk. (First session 
 Fifth Congress, Annals, p. 51.) 
 
 ' Such a resolution is in accordance with the most ancient precedents of the House. (First session 
 First Congress, Journal, p. 134.) 
 
 •* While this resolution is usually adopted, the House sometimes, as in the Fifty-first Congress, pro- 
 ceeds under general parliamentary law until rules are adopted permanently 
 
 ^ These resolutions are the forms used in organization of Fifty-fourth Congress. (Congressional 
 Record, first session, Fifty-fourth Congress, pp. 5 and 6.)
 
 § 82 PROCEDUKE AND POWERS OF MEMBERS-ELECT IN ORGANIZATION. 63 
 
 Before the drawing begins the Members usually permit by unanimous consent 
 one or two Members of long service to select their seats.' Also, if the political 
 parties are disproportionate in size an understanding is usually arrived at as to the 
 portions of the Hall which they are to occupy.^ 
 
 When the Congress assembles by proclamation of the President, before the 
 first Monda}' of December, the formalities are the same, excepting that the Clerk 
 reads the proclamation of the President instead of the usual amiouncement.^ 
 
 At the opening of sessions other than the first the Speaker calls the House to 
 order, and, after prayer by the Chaplain, directs the Clerk to call the roll of Mem- 
 bers by States. This roll having been called and the number of Members present 
 having been ascertained, the Speaker announces that a quorum is present, if such 
 be the fact, and that the House is ready to proceed to business. 
 
 Resolutions are then adopted providing for notifying the President and the 
 Senate, as follows: 
 
 Resolved, That a committee of three Members be appointed on the part of the House to join the 
 committee appointed by the Senate to wait upon the President and inform him that a quorum of the 
 two Houses has assembled, and that Congress is ready to receive any communication he may have to 
 make. 
 
 Resolved, That the Clerk of the House inform the Senate that a quorum of the House of Representa- 
 tives has appeared, and that the House is ready to proceed to business.* 
 
 82. A discussion as to -whetlier or not the House is a House before its 
 organization. 
 
 Congress may not by law interfere with the constitutional right of a 
 future House to make its own rules. 
 
 A proposition to regulate the organization of the House by law. 
 
 On March 2, 1861,^ Mr. Albert G. Porter, of Indiana, made a report from the 
 Committee on the Judiciary on the bill (H. R. 867) "to provide for and facilitate 
 
 ' These favors are generally divided between the two large parties, and ex-Speakers are usually the 
 recipients, but the favor may be granted to any distinguished Member. 
 
 On February 13, 1847 (second session Twenty-ninth Congress, Globe, p. 418), while the House was 
 in Committee of the Whole House on the state of the Union, and while Mr. W. Hunt was speaking, Mr. 
 John Quincy Adams, of Massachusetts, for the first time since his attack of paralysis, entered the Hall. 
 The committee rose in a body to receive him. Mr. Hunt suspended his remarks, and Mr. Andrew John- 
 son, of Tennessee, arose and said: " In compliance with the understanding with which I selected a seat 
 at the commencement of the present session, I now tender to the venerable Member from Massachusetts 
 the seat which I then selected for him, and will furthermore congratulate him on being spared to return 
 to this House." Mr. Adams having briefly acknowledged the courtesy, the business proceeded. 
 
 In the organization of the Fifty-fourth Congress, ex-Speaker Charles F. Crisp (Fifty-second and 
 Fifty-third Congresses) and ex-Speaker Galuslia A. Grow (Thirty-seventh Congress) were accorded this 
 favor. (Record, first session Fifty-fourth Congress, p. 8.) Also, in the Fifty-second Congress, ex- 
 Speaker Thomas B. Reed and the two oldest Members on the two sides, Messrs. Holman, of Indiana, and 
 O'Neill, of Pennsylvania, were designated by resolution for the favor. 
 
 ^ The Republicans sit on the left of the Speaker and the Democrats on the right. But when one of 
 these parties is a small minority, the excess of the majority party goes to the extreme left or right. (See 
 Congressional Record, first session Fifty-fourth Congress, p. 6.) 
 
 ^ See Congressional Record, first session Fifty-fifth Congress, p. 13, when Clerk Alexander McDowell 
 called the House to order. 
 
 * Congressional Record, second session Fifty-fourth Congress, p. 12. 
 
 * House Report No. 102, second session Thirty-sixth Congress.
 
 64 PEECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 83 
 
 the organization of the House of Representatives of the United States on the assem- 
 bling of each Congress." This bill undertook to prescribe the evidence which 
 should authorize one who claimed to be a Representative to vote; the mode by 
 which that evidence should be presented; the manner of voting for a temporary- 
 presiding officer, for the Speaker, and other officers; the order of business previous 
 to the organization, and the number of votes requisite to elect the several officers. 
 The committee came to the conclusion that these provisions prescribed "rules 
 of proceedings" for the popular branch of future Congresses, and to be, therefore, 
 in contravention of Article I, section 5, clause 2 of the Constitution: "Each House 
 may determine the rules of its proceedings," etc. The report continues: 
 
 It seems to have been thought by some persons that the term " House " in the clause just quoted 
 applies to the House after it has been organized by the election of a Speaker and other officers; in 
 other words, that it is not a House until thus organized. But a reference to the clause in the same 
 article which provides that "the House of Representatives shall choose their Speaker and other officers" 
 shows this interpretation to be erroneous. That clause recognizes the body of Representatives assem- 
 bled as being a "House" before the Speaker has been elected. 
 
 The bill was suggested by the troubles at the organization of the Thirty-fourth 
 Congress. It seems never to have been acted on by the House.' 
 
 83. With a single exception the call of the roll of Members at the be- 
 ginning of a session has been by States and not alphabetically. — On 
 December 4, 1893,^ at the beginning of the second session of the Congress, the roll 
 was called alphabetically, and not by States. 
 
 Mr. Joseph Wheeler, of Alabama, made the point of order that the roll should 
 be called by States. 
 
 The Speaker (Mr. Crisp) said: 
 
 No rule of the House requires the roll to be called or recorded in the manner which the gentleman 
 suggests; on the contrary, the rules require that the roll be called alphabetically, except that upon 
 the organization of the House and when in the absence of the Speaker the Clerk discharges the duty 
 of calling the House to order, the rules require him to have the roll called by States. In other cases 
 the rule is that the roll be called alphabetically. 
 
 In the Journal, however, the roll call appears as if called by States. 
 
 On December 5 Mr. Wheeler presented to the House the precedents from the 
 foundation of the Government to show that at the beginning of a second session 
 the roll had always, with the exception of this instance, been called by States. 
 
 84. The call of the roll of Members-elect may not be interrupted, es- 
 pecially by one not on that roll. — On December 4, 1805,^ at the time of the 
 organization of the House, while the roll of Members-elect was being called by 
 States, Mr. Horace Maynard, of Tennessee (whose name was not on the roll), rose 
 and was proceeding to address the Chair, when the Clerk * declined to allow any 
 interruption of the roll call. 
 
 'Journal, p. 479. 
 
 -Second session Fifty-third Congress, Journal, p. 3; Record, pp. 13, 36. 
 
 ^ First session Thirty-ninth Congress, Globe, p. 3. 
 
 * Edward McPherson, of Pennsvlvania, Clerk.
 
 § 85 PROCEDURE AND POWERS OF MEMBERS-ELECT IN ORGANIZATION. 65 
 
 85. The House declined before organization to add to the roll the 
 name of a Member-elect whose credential had been lost; but after organi- 
 zation permitted him to take the oath. — On December i, 1905/ at the organi- 
 zation of the House, and immediately after the roll had been called by States to 
 ascertain the presence of a quorum, Mr. Asle J. Gronna, of North Dakota, stated 
 that the certificate of his colleague, Mr. Thomas F. Marshall, had been lost, and 
 asked that his name be added to the roll. 
 
 Mr. Sereno E. Payne, of New York, said: 
 
 That would not be in order until after the organization of the House. 
 
 The Clerk' said: 
 
 It would be a matter of unanlmotis consent. The gentleman from North Dakota asks unanimous 
 consent that the name of his colleague [Mr. Marshall] be added to the roll. Is there any objection? 
 
 Mr. John S. Williams, of Mississippi, said : 
 
 At this stage of the proceedings I shall object. At the proper time that will be in order. 
 
 But after organization Mr. Marshall was permitted by the House to take the oath, 
 on the assurance given by his colleague that the election was in no way disputed. 
 
 86. At the organization of the House a person whose name is not on 
 the Clerk's roll may not be recognized. — On December 4, 18(35,^ at the organi- 
 zation of the House, and after the roll of Members-elect had been called by the 
 Clerk, after the presence of a quorum had been announced, and after a motion had 
 been made to proceed to the election of a Speaker, Mr. Horace Mapiard, of Tennes- 
 see, whose name was not on the Clerk's roll, sought recognition. 
 
 Objection being made by Mr. Thaddeus Stevens, of Pennsylvania, the Clerk* 
 held: 
 
 The Clerk rules, as a matter of order, that he can not recognize any gentleman whose name is not 
 on the roll. 
 
 87. It has been held that the House is technically in session during 
 the period of organization. — On January i, 16.50,'^ Mr. Speaker Cobb decided 
 that the House was in session during the twenty days while unsuccessful votes were 
 being taken for a Speaker. Mr. Robert C. Winthrop, of Massachusetts, had sug- 
 gested that the thirty days allowed for the introduction of petitions should not be 
 counted from the meeting of Congress, but from the date of the organization of the 
 House. 
 
 88 On March 11. 1875," the point was raised in the Senate that at a called 
 special session it was not in order to take any action looking to the transaction of 
 legislative business, the House not being in session. The point was debated at some 
 length, but no determination was reached. 
 
 ' First session Fifty-ninth Congress, Record, pp. 40, 41. 
 - Alexander McDowell, of Pennsylvania, Clerk. 
 ^ First session Thirty-ninth Congress, Globe, p. 3. 
 
 * Edward McPherson, of Pennsylvania, Clerk. 
 
 * First session Thirty-first Congress, Globe, p. 101. 
 'First session Forty-fourth Congress, Record, p. 25. 
 
 5994— VOL 1—07 5
 
 66 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 89 
 
 89. The House may adjourn for more than one day before the election 
 of a Speaker. — On January 13, 1860/ before the election of a Speaker it was 
 ordered that when the House adjourns it adjourn until Monday next. 
 
 90. At the organization of the House in 1855 the Clerk ordered tell- 
 ers. — On December 7, 1855,- during the protracted struggle over the election of a 
 Speaker, Mr. Benjamin F. Leiter, of Ohio, moved that the House adjourn. 
 
 Mr. Edwin B. Morgan, of New York, asked for tellers. 
 
 The Clerk ^ ordered tellers, and appointed Mr. Morgan and Mr. John Letcher, 
 of Virginia. 
 
 91. The yeas and nays may be ordered before the organization of the 
 House. 
 
 In 1855 the Clerk decided questions of order at the organization. 
 
 On December 7, 1855,' before rules had been adopted or a Speaker elected, 
 Mr. Benjamin F. Leiter, of Ohio, moved that the House adjourn. 
 
 Mr. Benjamin Stanton, of Ohio, demanded the yeas and nays. 
 
 Mr. John Letcher, of Virginia, made the point of order that the yeas and nays 
 might not be demanded until after the organization of the House. 
 
 The Clerk ^ said: 
 
 It is in order to call for the yeas and nays. 
 
 The question being taken, the yeas and nays were not ordered. 
 But on many other occasions during the protracted period before a Speaker was 
 elected, the yeas and nays were ordered and taken without question. 
 
 92. In 1839 the difficulties at organization prevented the daily ap- 
 proval of the Journal until finally, on one day, the Journals of several 
 days were approved. — From December 2 to 6, 1839,* the House was jDi-evented 
 from settling difficulties as to its organization by the refusal of the Clerk of the 
 preceding House to put any question, except the motion to adjourn, because the 
 call of the roll by States had not been completed, and the presence of a quorum 
 ascertained. On December 5 Mr. John Quincy Adams, of Massachusetts, was 
 chosen chairman of the meeting of Members-elect. On December 6, as soon as the 
 meeting assembled, the Journals of the proceedings of Monday, Tuesday, Wednes- 
 day, and Thursday, the 2d, 3d, 4th, and 5th, were read and approved. 
 
 93. Instance wherein the rules were adopted immediately after the 
 election of Speaker. — On December 21, 1839,^ the House adopted rules before 
 proceeding to the election of any officers except the Speaker.* 
 
 94. Before the election of a Speaker the House has adopted a rule reg- 
 ulating debate. — On December 22, 1855,' during the organization of the House, 
 
 ' First session Thirty-sixth Congress, Journal, p. 127; Globe, p. 444. 
 ^ First session Thirty-fourth Congress, Globe, p. 10. 
 ^ John W. Forney, Clerk. 
 
 ■• First session Twenty-sixth Congress, Journal, p. 7; Globe, p. 20. 
 ' First session Twenty-sixth Congress, Journal, p. 95. 
 
 ^ Usually, however, rules are not adopted until the officers have been elected. See section 81 of 
 this work. 
 
 'First session Thirty-fourth Congress, Journal, p. 161; Globe, p. 69.
 
 § 95 PROCEDDEE AND POWEKS OF MEMBEKS-ELECT IN ORGANIZATION. 67 
 
 and before the election of a Speaker or the adoption of rules, Mr. John A. Quitman, 
 of Mississippi, submitted the following resolution, which was agreed to: 
 
 Resolved, That, until the organization of this House by the election of a Speaker, no Member shall 
 occupy more than ten minutes in debate on any question lief ore the House, nor shall any Member 
 speak more than once on any question before the House, until every Member desiring to speak thereon 
 shall have spoken; and, upon a motion to lay on the table, there shall be no debate. 
 
 95. On January 19. 185G,^ before the election of Speaker or the adoption 
 of rules, Mr. Schuj-ler Colfax, of Indiana, offered the following resolution, which was 
 agreed to: 
 
 Resolved, That for one week, unless a Speaker is sooner elected, no debate on any subject, or under 
 the form of personal explanation, shall be in order; but any Member attempting to speak shall be held 
 out of order, unless the unanimous consent of the House shall have been firBt had, upon the question 
 being submitted by the Clerk. 
 
 96. The House has adopted a rule relating to the privilege of the floor 
 before the election of a Speaker. — ^On December 4, 1855,- at the time of the 
 organization of the House, and before a Speaker had been elected or rules adopted, 
 it was, on motion of Mr. George W. Jones, of Tennessee — 
 
 Ordered, That the Doorkeeper be directed to enforce so much of the rules of the last Congress as 
 relates to the admission of persons within the Hall of the House. 
 
 97. On January 30, 1860,^ before the election of the Speaker, the House adopted 
 the following: 
 
 Ordered, That the Doorkeeper be directed to execute the seventeenth rule of the House of Repre- 
 sentatives of the Thirty-fifth Congress, in regard to the priAdleges of the Hall. 
 
 98. On December 27, 1855,* before the election of Speaker or the adoption 
 of rules, a proposition for the drawing of seats by Members was offered and enter- 
 tained without any point of order raised, but after debate was laid on the table. 
 
 99. Before the election of officers the House has provided for opening 
 its sessions with prayer. — On January 23, 1856,=' before the election of a Speaker 
 or the adoption of rules, Mr. James F. Dowdell, of Alabama, offered a preamble and 
 resolution reciting the propriety of the House showing their reverence for God, and 
 resolving that the daily sessions be opened with prayer, and providing that the 
 ministers of the gospel in the city be requested to attend and perform the duty 
 alternately. 
 
 This motion was agreed to. Later in the session, after the organization of the 
 House, a Chaplain was elected. 
 
 100. On December 7, 1859," before the election of a Speaker, Mr. Alfred 
 Wells, of New York, by unanimous consent, offered the following resolution : 
 
 ' First session Thirty-fourth Congress, Journal, p. 334; Globe, pp. 269, 270. 
 ^ First session Thirty-fourth Congress, Journal, p. 4; Globe, p. 18. 
 'First session Thirty-sixth Congress, Journal, p. 149; Globe, p. 629. 
 * First session Thirty-fourth Congress, Journal, p. 185; Globe, p. 89. 
 'First session Thirty-fourth Congress, Journal, pp. 3-54, 582; Globe, p. 282. 
 'First session Thirty-sixth Congress, Journal, p. 21; Globe, p. 42.
 
 68 PRECEDENTS OF THE HOtTSE OF REPRESENTATIVES. § 101 
 
 Resolved, That until this House shall be organized by the election of a Speaker, the clergy of this 
 city, of the various religious denominations, be respectfully requested to open the daily session of this 
 House with prayer; and that such of the clergy as shall accept of this invitation officiate, one each day, 
 in alphabetical order. 
 
 Mr. William Smith, of Virginia, questioned the power of the House to transact 
 any business until after its organization, but withdrew his objection, and the House 
 agreed to the resolution. 
 
 101. Before the election of a Speaker the House has empowered the 
 Clerk and Sergeant-at-Arms of the last House to preserve order. — On 
 December 16, 1859,' before the election of a Speaker, Mr. William E. Niblack, of 
 Indiana, by unanimous consent, offered the following resolutions, which were agreed 
 to: 
 
 Resolved, That until the organization of this House by the election of a Speaker, the Clerk of the 
 last House shall be authorized and empowered to preserve order on the floor of the House and in the 
 galleries, and as far as possible for that purpose he may exercise the powers devolved on the Speaker, 
 for the time being, under the rules of the last House of Representatives. 
 
 Resolved, further. That until the organization of this House as aforesaid, the Sergeant-at-Arms of the 
 last House of Representatives is hereby authorized to exercise the ordinary powers of his office for the 
 preservation of order, under the direction of the Clerk of the last House of Representatives as aforesaid. 
 
 A question was raised as to whether or not these resolutions were intended 
 to allow the Clerk to decide questions of order, and Mr. Niblack responded that 
 they were not. 
 
 102. Before the election of officers or the adoption of rules, the House 
 has made a rule for enforcing order in the galleries. — On December 15, 1849,- 
 before the House had been able to elect a Speaker and before rules had been adopted, 
 Mr. James Thompson, of Pennsylvania, offered, and the House agreed to, the 
 following rule : 
 
 Resolved, That the Sergeant-at-Arms and Doorkeeper are hereby authorized and directed to enforce 
 the seventeenth rule of the last House of Representatives, and that no person be admitted to the ladies' 
 gallery unless accompanied by ladies or introduced in person by a Member of Congress. 
 
 This resolution was agreed to without question as to the authority of the 
 unorganized House to adopt the rule. 
 
 103. Proceedings at organization of the House in the New Jersey, 
 or " Broad Seal," contest of 1839. 
 
 In 1839, at the organization of the House, the Members-elect did not 
 permit five persons bearing regular credentials to participate in the 
 organization. 
 
 In 1839 certain persons whose titles as Members-elect were contested 
 assumed to participate in the organization; but the meeting passed on the 
 vote of each after it had been given. 
 
 On December 5, 1839,^ the Members-elect of the House, having been prevented 
 from organizing the House by complications arising over a contest as to the occu- 
 pants of five of the six seats of the State of New Jersey, Mr. John Quincy Adams, of 
 
 'First session Thirty-sixth Congress, Journal, p. 44; Globe, p. 165. 
 
 ^ First session Thirty-first Congress, Journal, p. 102; Globe, p. 36. 
 
 3 First session Twenty-sixth Congress, Journal, pp. 6-80; Globe, pp. 20-56.
 
 § 103 PEOCEDDRE AND POWERS OF MEMBERS-ELECT IN ORGANIZATION. 69 
 
 Massachusetts, was chosen chairman of the body and the rules of the last House 
 were adopted so far as they might be applicable. 
 
 Mr. Henry A. Wise, of Virginia, then offered this resolution: 
 
 Resolved, That the acting Clerk of this House shall proceed with the call of the Members from the 
 different States of the Union in the usual way, calling the names of such Members from New Jersey as 
 hold the regular and legal commissions from the executive of that State.' 
 
 On the succeeding day Mr. R. Barnwell Rhett, of South Carolina, moved that 
 the resolution lie on the table. 
 
 On this question tellers were called for, and the Chair appointed Messrs. George 
 C. Dromgoole, of Virginia, and Edward Davies, of Pennsylvania, tellers to count 
 the House. 
 
 Mr. Dromgoole inquired of the Chair who were to be coimted as Members from 
 New Jersey, and stated that he should, unless otherwise directed by the House, 
 count every person who presented himself. 
 
 The Chairman answered, and so decided, that those must be counted who had 
 been commissioned as Members of the House of Representatives of the United 
 States for the Twenty-sixth Congress from the State of New Jersey by the governor 
 of that State. The Chairman further stated that he had expressed this as his 
 opinion before he was placed in the Chair. 
 
 From this decision Mr. Aaron Vanderpoel, of New York, took an appeal to 
 the Members on the ground that the Chair had usurped to himself the decision of 
 the very question that the Members were tn,nng to decide. 
 
 Pending the appeal the House adjourned. The session of the next day, 
 December 7, was occupied largely with proceedings for the correction of the Journal, 
 in the course of which a vote by tellers was had, and the Chairman was asked who 
 were to be counted as Members of the House. He replied that " the tellers will count 
 whoever passes through; and if any pass whose title to a seat is contested, they 
 will report the fact to the meeting, and the meeting will decide the question." 
 But the tellers, in reporting their vote, reported no votes by gentlemen whose 
 titles were contested. 
 
 Monday, December 9, was occupied largely with the reading of documents 
 relating to the case, and with questions relating to the reading. It was not until 
 December 10 that the question recurred on the appeal of Mr. Vanderpoel. 
 
 Mr. Henry A. Wise, of Virginia, moved the previous question, and on the 
 question there were 110 ayes and 48 noes. Mr. John T. H. Worthington, of Mary- 
 land, one of the tellers, reported that three of the persons claiming to be Members 
 from New Jersey, tinder the commission of the governor, voted on the previous 
 question. 
 
 The main question was then put: "Shall the decision of the Chair stand as 
 the judgment of the meeting?" and passed in the negative, ayes 108, noes 114. 
 
 And so the decision of the Chair was reversed. 
 
 Mr. Wortliington, one of the tellers, stated that four of the Members from 
 New Jersey, commissioned by the governor, voted on that question. 
 
 ' For these five seats there were ten claimants, five with credentials from the governor and five 
 with certificates from State officials stating the vote.
 
 70 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 103 
 
 The Chairman here stated that it was now for the meeting to decide who 
 should be called as Members from New Jersey. 
 
 The question on the motion of Mr. Rhett, that the resolution of Mr. Wise 
 do lie on the table, was called for. 
 
 The Chairman decided that that question could not be put until the preliminary 
 question was settled as to who should vote as Members from New Jersey. 
 
 Several propositions were made, among them a motion that neither set of 
 Members claiming seats from New Jersey should vote, until the question "Who 
 shall vote from New Jersey?" should be decided by the House. 
 
 The Chairman decided that he was not competent to put the question on 
 this motion, nor was it within the competency of the meeting to pass upon the 
 motion, since in effect the motion was to decide that the people of New Jersey 
 should not be represented on the floor. 
 
 After incidental questions had been considered, the Chairman suggested a 
 course of procedure in the form of a ruling, but an appeal being taken, he withdrew 
 it. Thereupon Mr. George N. Briggs, of Massachusetts, renewed the proposition 
 in this resolution : 
 
 Resolved, That on the motion of Mr. Rhett to lay Mr. Wise's resolution on the table, or on Mr. 
 Wise's resolution itself, the tellers shall count all the persons who may pass between them, and if any 
 pass whose right to vote is disputed, the tellers shall report their names to the Chair, after the number 
 of votes on both sides are reported, for the decision of the House. 
 
 This resolution was agreed to without question as to those voting. 
 
 The question then recurred on Mr. Rhett's motion, and the tellers reported 
 that 115 had voted in the affirmative, and 114 had voted in the negative, among 
 which latter number was one disputed vote, that of Mr. Charles Naylor, of Penn- 
 sylvania, whose seat was contested by Mr. IngersoU. 
 
 The Chairman announced to the House that he voted with the nays, whereby 
 an equal division was produced, and the question on Mr. Rhett's motion was lost. 
 
 Mr. Francis O. J. Smith, of Maine, challenged the right of Mr. Naylor to vote, 
 whereupon Mr. Naylor challenged Mr. Smith's right. Mr. Wise moved that Mr. 
 Naylor's vote be counted. The question was about to be put on this motion under 
 the operation of the previous question, when the Chairman ruled that Mr. Naylor's 
 right to vote could not be questioned, since all controversy and proceedings had 
 reference to the New Jcrsej' cases and none other. Therefore the resolution moved 
 by Mr. Briggs and adopted by the House had no relation to Mr. Naylor's right 
 to vote. 
 
 From this decision Mr. Hopkins L. Tumey, of Tennessee, appealed to the 
 meeting. 
 
 Pending this appeal the House voted on a motion to adjourn, the tellers report- 
 ing 116 in the affirmative and 113 in the negative and that three disputed votes had 
 been given on each side. The disputed votes bemg eqiial on each side, and therefore 
 not affecting the result, the Chairman decided that the question was carried in the 
 affirmative, and the meeting accordmgly adjourned. 
 
 On December 11 the question was taken on the appeal by Mr. Tumey, "Shall 
 the decision of the Chair stand as the judgment of the House?" and the tellers
 
 § 103 PROCEDURE AND POWERS OF MEMBERS-ELECT IN ORGANIZATION. 71 
 
 reported 112 votes in the affirmative, including iii that number the votes of Mr. 
 Naylor, of Pennsylvania, and Messrs. Aycrigg, Yorke, Maxwell, and Stratton, of 
 New Jersey, commissioned by the governor of that State, 118 votes in the negative, 
 including in that number the vote of Mr. Ingersoll, of Petmsylvania, claiming to be 
 a Member in place of Mr. Naylor, also the votes of Messrs. Iville, Cooper, and Ryall, 
 of New Jerse}', claiming to be Members, in the room of Members commissioned by 
 the governor of that State. 
 
 The Chairman then stated that it was for the meeting now to decide, name by 
 name, upon the right to vote of each disputed voter whose name had been reported 
 by the tellers. 
 
 Mr. F. O. J. Smith, of Maiae, objected that the determination of the rights of 
 the disputed voters would not affect the result; that the Chairman's decision was 
 overruled, no matter what decisions should be given as to the challenged votes. 
 
 The Chairman held, however, that more Members were voting from Pennsyl- 
 vania and New Jersey than could be permitted to vote under the Constitution and 
 the laws; therefore the meeting must decide upon these disputed rights. 
 
 The question was first taken on Mr. Naylor's right to vote, and the tellers 
 reported 119 votes in the affirmative, 112 votes in the negative, and no disputed 
 votes. So it was decided that Mr. Naylor's vote should be counted. 
 
 The question was next taken on the vote of Mr. Aycrigg, of New Jersey, and on 
 the motion that it be counted the tellers reported 117 votes in the affirmative, 
 including in that number the votes of Messrs. Halstead, Maxwell, Stratton, and 
 Yorke, of New Jersey, commissioned by the governor of that State; 122 votes in the 
 negative, including in that number the votes of Messrs. Cooper, Kille, and Ryall, 
 of New Jersey, claiming to be Members, in the room of Members commissioned 
 by the governor of that State. 
 
 It was therefore decided that the vote of Mr. Aycrigg should not be counted. 
 
 The question was next put, "Shall the vote of Mr. Maxwell be counted?" 
 
 And the tellers reported 116 votes in the affirmative, includmg in that number 
 the votes of Messrs. Halstead, Stratton, and Yorke, of New Jersey, commissioned 
 by the governor of that State; 122 votes in the negative, including in that number 
 the votes of Messrs. Cooper, Kille, and Ryall, of New Jersey, claiming to be Members 
 in the room of Members commissioned by the governor of that State. 
 
 And so it was decided that the vote of Mr. Maxwell should not be counted. 
 
 It was then agreed that the question be taken by one vote on Messrs. Halstead, 
 Stratton, and Yorke; and on the question the tellers reported 110 votes in the 
 affirmative, 117 votes in the negative, and there was no disputed vote on either side. 
 And so it was decided that the votes of Messrs. Halstead, Stratton, and Yorke should 
 not be counted. 
 
 The next vote decided that the vote of Mr. Ingersoll, of Pennsylvania, should 
 not be counted, and then it was decided that the votes of Messrs. Cooper, Balle, 
 and Ryall, of New Jersej^, should not be counted. 
 
 The Chairman then announced that from the votes thus taken and the decision 
 thereby made the House had determined that the decision of the Chair that Mr. 
 Naylor's vote could not be questioned, should be reversed, that Mr. Naylor's vote
 
 72 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 103 
 
 on the motion made by Mr. Rhett, that the resolution of Mr. Wise do lie on the table, 
 should be counted, and that therefore the motion of Mr. Rhett had been determined 
 in the negative. 
 
 The question then recurred on agreeing to the resolution offered by Mr. Wise. 
 
 The previous question being moved, there were in favor of it 113 votes, against 
 it 113 votes. The Chairman thereupon voted in favor of the previous question and 
 it was ordered. 
 
 On agreeing to the resolution there were 115 yeas and 118 nays; and so the 
 resolution moved by Mr. Wise was rejected. 
 
 Mr. Rhett then moved the following resolution: 
 
 Resolved, That the House will proceed to call the names of gentlemen whose rights to seats are not 
 disputed or contested; and, after the names of such Members are called, and before the Speaker is 
 elected, they shall, provided there be a quorum of such present, then hear and adjudge upon the elec- 
 tions, returns, or qualifications of all claimants, Mr. Naylorand Mr. Ingersoll excepted, to the seats 
 contested on this floor. 
 
 This resolution being divided, the portion to and including the word "con- 
 tested" was agreed to without a call of the roll. The second portion was then 
 agreed to, yeas 138, nays 92. 
 
 On December 12 the roll was called in pursuance of this order, and at the con- 
 clusion of the roll call Mr. Randolph, of New Jersey, read in liis place a paper pur- 
 porting to be a protest, signed by the five gentlemen commissioned by the governor 
 of New Jersey, against the course adopted by the House in relation to their claim 
 to be Members of the House. This paper set forth — 
 
 That the determination of the State authorities, authenticated in the manner prescribed by the 
 State laws, is the only evidence of the election of Members of the House of Representatives which can 
 be received prior to the organization of the House, and is final and conclusive until reversed by the 
 House itself, duly organized. 
 
 That no one who can not produce the evidence of his election, prescribed by the laws of his State, 
 is entitled to take a seat in the House of Representatives; and no one who does produce such evidence 
 can be excluded before an investigation by the House, without a gross violation of the Constitution of 
 the United States and the rights of the States themselves. 
 
 That the House of Representatives can not be constitutionally organized, nor a quorum formed, 
 until all the States of the Union have had an opportunity to appear by all their representatives; and 
 that a constitutional quorum is not merely a majority of the Representatives elect after the arbitrary 
 c-icclusion of other Members, on any pretext whatever, but a majority of all the Members from all the 
 States, after each State has had an opportunity to appear by her Representatives, and to constitute a 
 part of that quorum. 
 
 That the body here assembled, having no judicial powers, possessing no means for sending for 
 persons and papers, not legally authorized to examine witnesses under oath, and expressly forbidden by 
 law to go into the consideration of any business before the House is organized, and the oath to support 
 the Constitution administered to its Members, can not exercise the highest judicial function belong- 
 ing to the House ol Representatives, that of reviewing and reversing the decisions of the State authori- 
 ties in relation to their own elections; and that its only power is to require the persons appearing here 
 as Members to produce the credentials prescribed by the laws of their respective States. 
 
 That, by the Constitution of the United States, each State has the power to prescribe by law the 
 time, place, and manner of holding elections for its own Representatives in Congress, which power 
 includes the right of prescribing the time, place, and manner of ascertaining and making known the 
 result to C<jngress and the world.
 
 § 103 PROCEDURE AND POWERS OF MEMBERS-ELECT IN ORGANIZATION. 73 
 
 Therefore the protestants held that the failure of the House to recognize their 
 credentials was an outrage on the rights of their State and a violation of the Consti- 
 tution of the United States. 
 
 Mr. Randolph moved that the protest be spread on the Journal, and on this 
 question there appeared yeas 114, nays 117. 
 
 Mr. George C. Dromgoole, of Virginia, then submitted the following resolution: 
 
 Resolved, That a select committee, to consist of nine, be appointed, viva voce, by the Members of 
 the House, to whom shall be referred all the papere in the possession of the Clerk relating to contests for 
 seats on this floor from the State of New Jersey, and that they report thereon. 
 
 This resolution was agreed to, yeas 123, nays 104. 
 
 Mr. George W. Crabb, of Alabama, then moved to reconsider the vote, the point 
 having been made that the first question was as to the returns and not as to the 
 election. By general consent, then, the House reconsidered the vote. 
 
 Thereupon, Mr. Henry A. Wise, of Virginia, offered the following: 
 
 Resolved, That the credentials of the following Members: John B. Aycrigg, John P. B. Maxwell, 
 William Halstead, Charles C. Stratton, and Thomas Jones Yorke, are sufficient to entitle them to take 
 their seats in the House, leaving the question of contested election to be afterwards decided by the House. 
 
 The vote on this resolution was taken by yeas and nays, and there were yeas 
 (the Chairman voting with the veas) 117, nays 117. The House being equalh- 
 divided, the question was lost. 
 
 A motion was then made by Mr. Smith, of Maine, that the House do come to 
 the following resolution: 
 
 Resolved, That this House proceed at this time to the election of a Speaker. 
 
 Mr. Wise raised the question of order that it was not in order to proceed to the 
 election of a Speaker, since by the terms of the resolution moved by Mr. Rhett the 
 House had decided to proceed with the contested cases before the election of a 
 Speaker. 
 
 The Chairman decided that, while the resolution moved by Mr. Rhett was in 
 full force, the resolution proposed by Mr. Smith was still in order. 
 
 After an appeal, which was subsequently withdrawn, and several roll calls on 
 incidental questions, the question was taken on Mr. Smith's resolution, and it was 
 agreed to, yeas 118, nays 110. 
 
 Then followed several ineffectual attempts to settle the status of the five gentle- 
 men having certificates from the governor of New Jersey as to the vote for Speaker. 
 A resolution presented by Mr. John White, of Kentucky, that they were entitled to 
 vote in the organization until excluded by a majority of uncontested votes, was laid 
 on the table, yeas 119, nays 115. 
 
 Finally, on December 14, the House proceeded viva voce to the election of a 
 Speaker, and while the first vote was being taken Thomas Jones Yorke, John B. 
 Aycrigg, William Halstead, Jolm P. B. Maxwell, and Charles C. Stratton, commis- 
 sioned by the governor of New Jersey as Members from that State, severally and 
 respectively, rose in their places, exhibited their commissions, and demanded that 
 their votes for Speaker be received ; and each of them announced his vote for John 
 Bell.
 
 74 PKECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 104 
 
 The vote was then reported by the tellers, but before the result was announced 
 Mr. Wise inquired of the tellers if the votes of the New Jersey Members who had 
 claimed to vote had been received. 
 
 The tellers answered the inquiry in the negative. 
 
 There was no choice on this vote, and the voting was continued until December 
 16, when, on the eleventh vote, Robert M. T. Hunter, of Virginia, had 119 votes, a 
 majority, and was elected Speaker. 
 
 104. At the beginning of each, session the House fixes by resolution 
 the daily hour of meeting. — On December 6, 18r>9/ before the election of a 
 Speaker, Mr. Sherrard Clemens, of Virginia, by unanimous consent, offered this 
 resolution, which was agreed to: 
 
 Resolved, That the daily session of this House shall be at 12 o'clock meridian. 
 
 105. On December 4, 1855,^ on the fir.st day of the session, and when the House 
 was about to adjourn after several unsuccessful trials to elect a Speaker, Mr. George 
 W. Jones, of Tennessee, offered the following, which was agreed to: 
 
 Ordered, That the daily hour of meeting be fixed at 12 o'clock m. untU otherwise ordered. 
 
 106. On December 3 1860,^ at the beginning of a second session, the House 
 adopted an order fixing the hour of daily meeting, as was done at the first session. 
 
 107. On December 6, 1886,* at the opening of the second session of the Con- 
 gress, Mr. William S. Holman, of Indiana, offered and the House agreed to the reso- 
 lution establishing the hour of meeting of the House at 12 o'clock noon. 
 
 108. On December 5, 1892,' at the beginning of the second session, the House 
 adopted the resolution fixing the hour of daily meeting until otherwise ordered. 
 
 109. On December 1, 1902," at the opening of the second session of the Con- 
 gress, Mr. John Dalzell, of Pennsylvania, presented the following resolution, which 
 was agreed to: 
 
 Resolved, That until otherwise ordered the hour of daily meeting of the House of Representatives 
 shall be 12 o'clock meridian.' 
 
 110. In the early practice a motion to change the hour of daily meet- 
 ing was made at any time, but as the order of business grew more rigid 
 the motion lost its privilege. — It was the custom in the early days to agree to a 
 resolution or order on the first day of a Congress fixing the "hour to which the 
 House shall stand adjourned," and then on motion during the session as circum- 
 stances required the hour would be changed.* In those days the necessity of 
 making certain motions privileged had not been felt, and this motion, like most 
 other motions, was offered when a gentleman got the floor. 
 
 ' First session Thirty-sixth Congress, Journal, p. 11; Globe, p. 16. 
 
 ^ First session Thirty-fotirth Congress, Journal, p. 18; Globe, p. 4. 
 
 'Second session Thirty-sixth Congress, Journal, p. 8. 
 
 * Second session Forty-ninth Congress, Journal, p. 10; Record, p. 14. 
 
 ^Second session Fifty-second Congress, Journal, p. 5. 
 
 ^Second session Fifty-seventh Congress, Journal, p. 6; Record, p. 4. 
 
 'A similar resolution was agreed to in the Senate. Record, p. 1. 
 
 'First session Sixteenth Congress, Journal, pp. 3, 364, 418 (Gales and Seaton ed.).
 
 § 111 PROCEDURE AND POWERS OF MEMBERS-ELECT IN ORGANIZATION. 75 
 
 111. On Mai'ch 28, 1834,^ the following resolution was moved and agreed to, 
 apparently without a motion for imanimous consent or to suspend the rules : 
 
 Resolved, That 11 o'clock a. m. shall be the hour to which this House shall stand adjourned until 
 otherwise ordered. 
 
 112. On January 14, 1835,^ Mr. Patrick H. Pope, of Kentucky, apparently by 
 unanimous consent, submitted and the House agreed to a resolution changing the 
 hour of daily meeting of the House from 12 to 11 o'clock a. m. 
 
 113. On March 1.5, 183G,^ Mr. John Bell, of Tennessee, asked unanimous con- 
 sent for the consideration of a resolution changing the hour of the daily meeting 
 of the House. Objection being made, he moved the suspension of the rules,'' and 
 the rules being suspended for the purpose, the resolution was considered. 
 
 114. On June 9, 1840,^ Mr. Seaborn Jones, of Georgia, moved that when the 
 House adjourns this day it adjourn to meet at 10 o'clock to-morrow morning. 
 
 Mr. Joseph R. Ingersoll, of Pennsj'lvania, raised the question of order that, 
 as the hour for the meeting of the House was fixed by a standing order of the House, 
 it was not in order to entertain a motion to change the same at any time except 
 when resolutions were in order.^ 
 
 The Speaker ' stated that, although the forty-seventh rule of the House 
 proAaded that "a motion to fix the day to wliich the House shall adjourn shall 
 always be in order," it did not follow that a motion to change the hour already 
 fixed by the House was alwaj'S in order; and he therefore sustained the question 
 of order raised by Mr. Ingersoll and decided that the motion of Mr. Jones was not 
 in order. 
 
 Mr. Jones having appealed, the decision of the Chair was sustained. 
 
 115. On January 8, 1845,* Mr. Jacob Thompson, of Mississippi, moved the 
 following resolution: 
 
 Resolved, That from and after this day the regular hour for the meeting of this House shall be 11 
 o'clock a. m. 
 
 While a motion to amend tliis resolution was pending, Mr. Isaac E. Holmes, of 
 South Carolina, moved that the House adjourn. 
 
 ' First session Twenty-third Congress, Journal, p. 459. 
 
 - Second session Twenty-third Congress, Journal, p. 217; Debates, p. 988. 
 
 'First session Twenty-fourth Congress, Journal, p. 515; Debates, p. 2779. 
 
 * The resolution fixing the daily hour to which the House shall stand adjourned does not seem 
 to have been considered in the light of one of the rules of the House. Thus, on May 3, 1828, a resolution 
 to change the hour to 10 a. m. was moved and at once considered. But a motion to amend it by insert- 
 ing a provision that it should not be in order to move an adjournment before 5 p.m. was ruled out, on 
 the ground that it would be a change of rule, which could not be made except after one day's notice, 
 the rules so providing. (First session Twentieth Congress, Journal, pp. 673, 674.) The Houi>e quite 
 often changed the hoiu: of its daily meeting. Thus on March 5, 1828. (First session Twentieth Con- 
 gress, Journal, p. 379.) 
 
 * First session Twenty-ninth Congress, Journal, p. 933; Globe, p. 950. 
 
 ^ The rule providing for the introduction of resolutions has been changed since then. 
 
 'John W. Davis, of Indiana, Speaker. 
 
 'Second session Twenty-eighth Congress, Journal, p. 186; Globe, p. 113.
 
 76 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § H^ 
 
 Mr. William J. Brown, of Indiana, moved that when the House adjourn to-day 
 it adjourn to meet at 11 o'clock to-morrow. 
 
 Mr. John White, of Kentucky, raised the question of order that, although 
 under the forty-eighth rule a motion to fix a different day from that to which the 
 House would adjourn took precedence of a motion to adjom-n, a motion to fix a 
 different hour was not contemplated by the rule and did not take such precedence. 
 
 The Speaker ' decided in favor of the question raised by Mr. White, and the 
 House acquiesced in the decision. 
 
 116. The resolution of the House fixing the hour of daily meeting is 
 a standing order rather than a rule. — On April 21, 1880,- Mr. John T. Harris, 
 of Virginia, raised a question of order as to the following resolution, which he had 
 offered as privileged: 
 
 Resolved, That on and after Wednesday next, until otherwise ordered, the hour of daily meeting of 
 the House be 11 o'clock a. m. 
 
 Debate arising as to the nature of the resolution, the then existing rule was 
 quoted as follows: 
 
 No standing rule or order of the House shall be rescinded or changed without one day's notice of 
 the motion therefor, and no rule shall be suspended except by a vote of two-thirds of the Members 
 present, etc. 
 
 The Speaker ^ said, in relation to the resolution to change the hour of meeting: 
 
 The Chair thinks that this is an order of the House and not a rule. The latter part of the rule 
 applies to a suspension of the rules by a two-thirds vote, Init that part of the nile is not applicable aa 
 against an order in manner as provided for in first clause of the rule as read. 
 
 The Speaker therefore held that the resolution was included under the first 
 classification, being an order of the House requiring one day's notice, and that the 
 resolution was not before the House. 
 
 117. On April 21, 1884,^ Mr. William R. Morrison, of Illinois, claiming the 
 floor for a privileged report, presented the following from the Committee on Ways 
 and Means: 
 
 Resolved, That on and after April 22, 1884, the hour of daily meeting of the House for this session 
 be 11 o'clock a. m. 
 
 Mr. John A. Kasson, of Iowa, asked if this was privileged. 
 The Speaker ' said : 
 
 The Chair will state that this is not a rule of the House which it is now proposed to change. The 
 rules of the House do not fix the time of meeting, but the House by resolution at the beginning of the 
 session provided that the daily session should begin at 12 o'clock until otherwise ordered. 
 
 118. The Senate having assembled and there being no presiding oflB.- 
 cer, by mutual consent one of the older Members took the chair. 
 
 ' John W. Jones, of Virginia, Speaker. 
 
 - Second session Forty-sixth Congress, Journal, p. 2612. 
 
 ^Samuel J. Randall, of Pennsylvania, Speaker. 
 
 * First session Forty-eightli Congress, Record, p. 3184. 
 
 ^ John G. Carlisle, of Kentucky, Speaker.
 
 § 118 PROCEDURE AND POWERS OF MEMBERS-ELECT IN ORGANIZATION. 77 
 
 The Senate, following the act of 1789, declined to administer the oath 
 to Members-elect until it had chosen a President pro tempore, although a 
 precedent for the proposed action was cited. 
 
 Argument that the law of 1789 as to organization of House and Sen- 
 ate by administration of the oath to Members-elect is directory merely. 
 
 On Monday, October 10, 1881,' the Senate assembled in special session, convened 
 by proclamation of the President, who as vice-President had succeeded to the Presi- 
 dency on the death of President Garfield, on September 19. When the Senate had 
 met on March 4, 1881, it had been evenly divided politically, its committees having 
 been organized by the casting vote of the Vice-President. No President pro tem- 
 pore had been chosen; therefore when the Senate met this day there was no pre- 
 siding officer. 
 
 Mr. Isham G. Harris, of Tennessee, rising after the prayer of the Chaplain, stated 
 that he had been requested by a niunber of Senators on both sides of the Chamber 
 to call the Senate to order. He stated that if there was no objection he would do 
 so, in order that they might proceed with business. There being no objection, 
 Mr. Harris took the chair. 
 
 The proclamation of the President was then read. 
 
 Thereupon Mr. George H. Pendleton, of Ohio, offered a resolution that Thomas 
 F. Bayard, of Delaware, be chosen President pro tempore. 
 
 Mr. George F. Edmimds, of Vermont, here presented the credentials of Messrs. 
 Warner Miller and E. G. Lapham as Senators-elect from the State of New York, 
 vice Messrs. Roscoe Conkling and Thomas C. Piatt, resigned; and Mr. Nelson W. 
 Aldrich, of Rhode Island, vice Ambrose E. Bumside, deceased. Mr. Edmunds 
 declared that imder the seventh rule of the Senate the presentation of credentials 
 was always in order except during certain business, such as reading of the Journal, 
 etc. 
 
 The credentials having been presented, Mr. Edmimds moved that the oath be 
 administered to them by Mr. Henry B. Anthony, the oldest member of the Senate 
 in continuous service. 
 
 On motion of Mr. Pendleton, this motion was laid on the table— yeas, 36 nays 34. 
 
 Thereupon Mr. Edmunds moved as a substitute for the resolution of Mr. Pen- 
 dleton a proposition that the credentials be placed on file, and that the oath be 
 administered to the Senators-elect by Hon. Henry B. Anthony. 
 
 Mr. Edmunds said he had heard it stated that — 
 
 the law of Congress requires that the oath of office of a Senator-elect should be administered by the 
 President of the Senate, either the Vice-President, the Constitutional President of the Senate, or the 
 President pro tempore acting in his absence, and that this law is an exclusive law, by implication 
 forbidding any other administration of such an oath, and hence that it is impossible legally to admit 
 these gentlemen until there shall be a President pro tempore who can fulfill the statute and administer 
 the oath. 
 
 Mr. Edmunds thereupon called attention to the fact that the act of 1789 was 
 passed by a Senate and signed by a President pro tempore, not one of whom had 
 taken the oath prescribed by the Constitution. 
 
 ' Special session of Senate, Forty-seventh Congre&s, Record, p. 505.
 
 78 PRECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 119 
 
 Therefore Mr. Edmunds argued that 
 
 this body as well as every other parliamentary body is entitled, when the just exigency of the case 
 arises, to receive members who otherwise are a part of it, and to act, if there be no means of acting other- 
 wise, on the very first question as well as the last one that may be presented to the body, without taking 
 an oath at all. 
 
 Mr. Edmunds then referred to the Senate precedent of March 4, 1853, in a 
 similar case, when it was ordered that "the oath required by the Constitution be 
 administered" by Hon. Lewis Cass, the oldest member of the Senate. After that 
 had been done, a President pro tempore was elected. Mr. Edmunds argued that 
 the Senators of 1853 viewed the act of 1789 as a 
 
 directory provision for the convenient and orderly administration of the Government, which the two 
 Houses of Congress were expected to follow, unless the absence of the convenient means of following it 
 would put them back upon their own inherent powers. I need not tell my honorable friend from Ohio, 
 and I need not read to him the authority to show it, that by the ancient constitution of all parliamentary 
 bodies the power to administer oaths respecting their own proceedings (I limit it to that, of course) is 
 inherent, and part of their power and existence as a body. 
 
 Mr. Augustus H. Garland, of Arkansas, admitted that by unanimous consent 
 the course urged by Mr. Edmunds might be followed; but the law of 1789 and 
 Rule 63 of the Senate that the oath "required by the Constitution and prescribed 
 by the act of June 1, 1789, shall be taken in open Senate," etc., constituted a rule 
 which the Senate should follow, and the act of 1789 required that the "President 
 of the Senate for the time being" should administer the oath. 
 
 Mr. Edmunds's amendment was rejected — yeas 33 nays 34 — and a President 
 pro tempore was elected before the oath was administered.^ 
 
 119. Form and history of the rule for the drawing of seats by Mem- 
 bers (Rule XXXII, sees. 1 and 2). — The drawing of seats by the Members 
 is provided for by the rule of the House No. 32: 
 
 1. At the commencement of each Congress, immediately after the Members and Delegates are 
 sworn in, the Clerk shall place in a box, prepared for that purpose, a number of small balls, of marble 
 or other material, equal to the number of Members and Delegates, which balls shall be consecutively 
 numbered and thoroughly inteiiningled, and at such hour as shall be fixed by the House for that pur- 
 pose, by the hands of a page, draw said balls one by one from the box and announce the number as it 
 is drawn, upon which announcement the Member or Delegate whose name on a numbered alphabetical 
 list shall correspond with the number on the ball shall advance and choose his seat for the term for 
 which he is elected. 
 
 2. Before said drawing shall commence each seat shall be vacated and so remain until selected 
 under this rule, and any seat having been selected shall be deemed forfeited if left unoccupied before 
 the call of the roll is finished, and whenever the seats of Members and Delegates shall have been drawn 
 no proposition for a second drawing shall be in order during that Congress. 
 
 In the early years of the House seats were evidently selected by Members in 
 accordance with a system of mutual agreement. On February 16, 1826,^ Mr. 
 Robert Taylor, of Virginia, proposed a rule that the seats be numbered, and that 
 on the first or second day of each session Members should select their seats by 
 drawing pieces of paper bearing those numbers. This proposition was laid on the 
 
 ' Special session Forty-seventh Congress, Record, pp. 505-509. 
 ^ First session Nineteenth Congress, Journal, pp. 263, 265.
 
 § 120 PROCEDURE AND POWERS OF MEMBERS-ELECT IN ORGANIZATION. 79 
 
 table. On July 2, 1838,' the House agreed to a resolution that in the new arrange- 
 ment of the Hall which was to be made the Members should be entitled, as nearly 
 as possible, to the same relative positions which they then held. A proposition by 
 Mr. Horace Everett, of Vermont, that seats be drawn by lot was not considered 
 seriously. On June 1, 1841,' an effort was made to establish a permanent rule 
 providing for drawing of seats bj^ lot. It was urged that Members living near the 
 seat of Government obtained an undue advantage of others by making early choices. 
 The rule was not adopted. On December 8, 1841,^ the House was called on to 
 decide wliich of two Members was entitled to a certain seat, one Member having 
 attempted to transfer it to another. Finally, on J)ecember 1, 1845,* Mr. Howell 
 Cobb, of Georgia, proposed to remedy the unfairness of the old method of selection 
 by having a drawing by lot. This was agreed to, and on December 4, seats were 
 drawn for the first time. 
 
 From 1845 until 1880 seats were drawn in accordance with a resolution adopted 
 on each occasion. At the time of the revision of 1880 the Committee on Rules 
 reported a plan for having the names of Members WTitten on slips of paper, wliich 
 were to be drawTi from a box by the Clerk. But Mr. Walter L. Steele, of North 
 Carohna, having recited an instance in the House where such a plan had not proved 
 satisfactory', offered as an amendment the present form of section 1.^ The amend- 
 ment was adopted. 
 
 Section 2 is in the form reported in the revision of the Forty-sixth Congress." 
 It was in form a new rule, although a portion of it comes from Rule 163 of the old 
 rules of the House, which provided: 
 
 Whenever the seatsof Members shall have been drawn, no propositionshall be in order fora second 
 drawing during the same Congress. 
 
 This restriction dates from February 8, 1872,' when it was proposed by Mr. 
 Samuel S. Cox, of New York, to prevent obstruction of the public business by the 
 presentation of resolutions for new drawings of seats.* 
 
 120. At the time of the organization of the House the motion relat- 
 ing to the drawing of seats is privileged. — On December .j, 185()/' a resolu- 
 tion for the drawing of seats at the beginning of a session was offered and admitted 
 as a question of privilege. 
 
 ' Second session Twenty-fifth Congress, Journal, p. 1207; Globe, p. 489. 
 
 - First session Twenty-seventh Congress, Journal, pp. 20, 21, 34; Globe, pp. 9, 10. 
 
 ^Second session Twenty-seventh Congress, Journal, pp. 27, 28; Globe, p. 9. 
 
 ■• First session Twenty-ninth Congress, Journal, pp. 13, 55; Globe, p. 4. 
 
 *See Congressional Record, second session Forty-sixth Congress, p. 1204. 
 
 ^ Congressional Record, second session Forty-sixth Congress, p. 207. 
 
 ' Congressional Globe, second session Forty-second Congress, pp. 831, 904. 
 
 * Speaking in the House on March 3, 1880 (second session Forty-sixth Congress, Record, p. 1283), 
 Mr. .-Uexander H. Stephens, of Georgia, indicated that the Members of the Whig party used to select 
 seats in the portion of the Hall to the left of the Speaker, where members of the Republican party now 
 sit, while Members of the Democratic party then as now selected seats on the side to the right of the 
 Speaker. Members of third parties usually sit with the minority. 
 
 ' Third session Thirty-fourth Congress, Joiu-nal, p. 59.
 
 80 PRECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 121 
 
 121. Precedents as to drawing of seats where a large portion of 
 the majority is to be accommodated on the minority side of the main 
 aisle. — On December 4, 1905,' at the organization of the House, a question arose 
 as to the selection of seats, and Mr. James A. Tawney, of Minnesota, asked and 
 received unanimous consent for agreement to the following: 
 
 That in selecting seats the precedents of the Fifty-second and Fifty-fourth Congresses be followed 
 whereby the section of seats next the main aisle on the minority side were given to the majority side, 
 leaving any further excess of majority Members to be accommodated in the seats on the extreme left of 
 the minority side. 
 
 Mr. Tawney in debate referred to the precedents in the Fifty-second - and 
 Fifty-fourth ^ Congresses. 
 
 122. Before an organization of the House has been effected the Sen- 
 ate has not usually proceeded to general legislation. 
 
 In the earlier practice of the House the Senate was notified of the elec- 
 tion of Speaker, but not of that of other officers. 
 
 In 1839 * the House met in the first session on December 2, but the organization 
 was not completed until December 21. On that day, the Speaker having been 
 elected, the rules adopted, and the Clerk and Sergeant-at-Arms elected — which 
 steps occurred in the order enumerated — a message was sent to the Senate informing 
 that body that a quorum of the House had assembled, that Robert M. T. Himter, 
 of Virginia, had been elected Speaker, and that it was now ready to proceed to 
 business.^ The Doorkeeper and Postmaster were not elected until the day after 
 this message was sent. 
 
 On December 23 a message was received from the Senate informing the House 
 that the Senate, on December 2, formed a quorum, and was ready to proceed to 
 business. The message also communicated a resolution adopted by the Senate for 
 appointing the customary joint committee to await upon the President and inform 
 him that the two Houses were ready to receive any coniinunication from liim. The 
 House at once concurred in this. 
 
 The Senate had adopted these resolutions on December 2. On the 4th Mr. 
 Thomas H. Benton said that he understood that, as the other branch was not 
 organized, it would not be proper to transact legislative business, yet he thought 
 some resolutions of inquiry might be adopted in order to obtain a basis for future 
 action. But, on the succeeding day, doubts as to the propriety of this being raised, 
 Mr. Benton decided not to proceed. 
 
 On December 9 a resolution was adopted to inform the President that a quorum 
 of the Senate had assembled, and that they were ready to receive any communication 
 of an executive character which he might make. 
 
 Thereafter, until the organization of the House and the receipt of the President's 
 message, the Senate transacted no business but executive business, not even bills 
 
 ' First session Fifty-ninth Congress, Record, pp. 43, 44. 
 ■^ First session Fifty-second Congress, Record, pp. 9, 10. 
 ^ First session Fifty-fourth Congress, Record, p. 6. 
 
 ^First session Twenty-sixth Congress, Journal, pp. 79, 95-101; Globe, pp. 1-78. 
 ^ It was not then the custom to transmit to the Senate information as to the election of other officers 
 than the Speaker.
 
 § 123 PROCEDUEE AND POWERS OF MEMBERS-ELECT IN ORGANIZATION. 81 
 
 being introduced. Of course the election of its officers and appointment of its 
 committees occurred. 
 
 123. In the Thirty-first Congi-ess the organization of the House was delayed 
 for twenty days by the failure to elect a Speaker. During tliis time the Senate did 
 no general legislative business. On December 11, 1849,' wliile the House was still 
 unorganized. Senator Joseph R. Underwood, of Kentucky, gave notice of his inten- 
 tion to introduce a bill. 
 
 A question being raised, and the opinion of the Vice-President ^ being asked, he 
 said that the impression of the Chair was that no proceeding connected with legisla- 
 tive business could be had until both Houses were organized. As notice of the 
 introduction of a bill was a necessary antecedent step to the introduction of a bill, and 
 one which related to the business of legislation, in the opinion of the Chair it was not 
 now in order to give such notice. 
 
 On December 15 the Senate adopted a resolution appointing a committee to wait 
 on the President and inform liim that the Senate was organized and ready to receive 
 any communication he might tliink proper ' ' in relation to matters which are within 
 the sphere of their separate constitutional action." Mr. Henry Clay approved this, 
 saying that it was in accordance to precedent, and did not seem wanting in courtesy 
 to the other body. 
 
 124. In the session of 1855-56,' while the House was unable to organize because 
 the election of a speaker was not effected until February, the Senate did not pro- 
 ceed to general legislation, but on December 4 notified the President that it was 
 ready for communications of an executive character; on December 31* received the 
 annual message of the President of the United States; organized its committees, etc. 
 
 125. On January IS and 19, 1860,^ while the House was endeavoring to elect 
 a Speaker, the Senate debated at length whether or not it might proceed to genera 
 legislative business, it being contended on the one hand that the Congress con- 
 sisted of an organized Senate and an organized House, and that while one remained 
 luiorganized there was no Congress. On the other hand, it was contended that 
 the Senate might proceed with business. A proposition declaring that the Senate 
 might not proceed to legislative business until the House should be organized was 
 laid on the table, and then, by a vote of 45 yeas to 7 nays, the Senate voted to 
 allow a bill to be referred to a committee. During the discussion the constitu- 
 tional questions and the precedents were examined carefully. 
 
 126. At the beginning of a second session of a Congress the House 
 proceeded to business, although a quorum had not appeared in the Senate. 
 
 A message from one House that a quorum has appeared is not deliv- 
 ered in the other until a quorum has appeared there also. 
 
 On November 4, 1794,° at the second day's session of the second session of the 
 
 ' First session Thirty-first Congress, Globe, pp. 15, 35, 36. 
 ^Millard FUlmore, of New York, Vice-President. 
 'First session Thirty-fourth Congress, Globe, p. 4. 
 
 * Globe, p. 107. 
 
 * First session Thirty-sixth Congress, Globe, pp. 494, 517. 
 " Second session Third Congress, Annals, p. 870. 
 
 5994— VOL 1—07 6
 
 I 
 
 82 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 126 
 
 Third Congress, a quorum appeared, and a message announcing that fact was 
 sent to the Senate. 
 
 On November 5 Mr. Jonathan Dayton, of New Jersey, said he saw no reason 
 for awaiting the attendance of a quorum in the Senate, and submitted a motion 
 for the appointment of a committee to examine imfinished business. 
 
 Mr. Benjamin Goodhue, of Massachusetts, objected to the motion as improper, 
 but the Speaker ' put the question on Mr. Dayton's motion. 
 
 The House thereafter proceeded to business, no ((uorvmi of the Senate appearing 
 until November 18,^ when the joint committee was authorized and appointed to 
 notify the President that a quorum of the two Houses had assembled. 
 
 The Journal indicates that no message was sent to the Senate until the quorum 
 had appeared, excepting the message of November 4. That message was not 
 delivered in the Senate until the quonnn had appeared, on November 18.- 
 
 ' Annals, pp. 787, 890; Journal, pp. 232, 233 (Gales and Seaton ed.). 
 ^Senate Journal, p. 120 (Gales and Seaton ed.). 
 
 I
 
 Chapter V.* 
 
 THE OATH. 
 
 1. Provisions of the Constitution and statutes. Sections 127, 128.' 
 
 2. Form of at organization of First Congress. Section 129. 
 
 3. Administration to the Speaker. Sections 130-133.- 
 
 4. Limited discretion of the Speaker in administering. Sections 134-139.'' 
 
 5. Challenging the right of a Member to be sworn. Sections 140-150.' 
 
 6. Disposal of cases of challenge. Sections 151-159. 
 
 7. Delays in taking the oath. Sections 160-161. 
 
 8. Administration before arrival of credentials. Sections 162-168.' 
 
 9. Administration to Members away from the House. Sections 169, 170. 
 
 10. Halations to the quorum, reading of the Journal, etc. Sections 171-181. 
 
 11. Status of the Member-elect before taking. Sections 183-185." 
 
 127. Senators and Representatives are bound by oath, or affirmation 
 to support the Constitution.— Article G of the Constitution provides: 
 
 The Senators and Representativea before mentioned, and the members of the several State legis- 
 latures, and all executive and judicial officers, both of the United States and of the several States, shall 
 be bound by oath or affirmation to support this Constitution; but no religious test shall ever be required 
 as a qualification to any office or public trust under the United States. 
 
 128. The Member's oath, its form, and the constitutional require- 
 ment.— The Constitution, in article G, j^rovides that " the Senators and 
 Representatives * * * shall be bound hj oath or affirmation, to support this 
 
 * See Volume VI, Chapter CLII. 
 
 ' The iron-clad oath. (Sees. 449, 45.5 of this volume.) Senate declines to permit administration 
 of the oath until after choice of a President pro tempore. (Sec. 118 of this volume.) 
 
 2 See also sections 81, 232, and 233 of this volume. Oath administered to Speaker by Member 
 oldest in continuous service. (Sec. 220 of this volume.) 
 
 ^ The Speaker consults the House as to administering the oath in doubtful cases. (Sees. 396, 519, 
 520 of this volume.) In later practice oath is administered to Delegates. (Sees. 400, 401 of this volume.) 
 Right of a contestant to be sworn is complete as soon as his case is decided favorably. (Sees. 622, 623 
 of this volume.) 
 
 * The procedure in challenging the right of Brigham H. Roberts to be sworn. (Sec. 474 of this 
 volume.) 
 
 * Instance wherein a Member-elect did not present his credentials pending a contest. (Sec. 44 
 of this volume.) 
 
 " The oath as related to qualifications. (Chap. XIV, Sees. 441-463 of this volume.) 
 
 83
 
 84 
 
 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. 
 
 § 129 
 
 Constitution;" and the statutes direct that "at the first session of Congress after 
 every general election of Representatives the oath of office shall be administered 
 by any Member of the House of Representatives to the Speaker ; and by the Speaker 
 to all the Members and Delegates present, and to the Clerk, previous to entering 
 on any other business; and to the Members and Delegates who afterwards appear, 
 previous to their taking their seats." ' 
 
 The oath is also prescribed by the statutes,'' in the following form: 
 
 I, A B, do solemnly swear (or aflBrm) that I will support and defend the Constitution of the United 
 States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; 
 that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will 
 well and faithfully discharge the duties of the office on which I am about to enter. So help me God. 
 
 129. At the organization of the first House an order prescribed the 
 oath to be taken by Members until a law should be enacted. 
 
 Administration of oath to Members and Clerk in the First Congress. 
 On April 6, 1789,^ it was, on motion — 
 
 Resolved, That the form of oath to be taken by the Members of this House, as required by the third 
 clause of tlie sixth article of the Constitution of Government of the United States, be as followeth, to wit: 
 "I, A B, a Representative of the United States in the Congress thereof, do solemly swear (or affirm, 
 as the case may be), in the presence of Almighty God, that I will support the Constitution of the United 
 States. So help me God." 
 
 On April 8, in accordance with an order adopted on the previous day, the chief 
 justice of New York attended and administered the oath, first to Mr. Speaker in liis 
 place, and then to the Members.* 
 
 On April 6, previous to adopting the form of oath, leave had been granted to 
 bring in a bill to regulate the taking the oath. This was the first bill to become a law, 
 the President affixing his signature June 1, 1789. '^ 
 
 On June 2 the Speaker administered the oath required by the act to Members 
 who had not taken a similar oath, and to the Clerk.' 
 
 130. The act of 1789 provides that at the organization of the House 
 and previous to entering on any other business the oath shall be adminis- 
 tered by any Member to the Speaker and by the Speaker to the other 
 Members and the Clerk. — Section 30 of the Revised Statutes, reenacting the 
 act of June 1, 1789, provides: 
 
 At the first session of Congress after every general election of Representatives, the oath of office shall 
 be administered by any Member of the House of Representatives to the Speaker; and by the Speaker 
 
 ' Revised Statutes, section 30. 
 
 ^Revised Statutes, section 1757. The requirements of section 1759 of Revised Statutes in regard 
 to the preservations of the oaths are not observed in regard to Members or Delegates or the elected officers 
 of the House. In the Senate, however, the practice has varied, the subscribing of the oath being required 
 at times. (First session Forty-eighth Congress, Record, p. 171.) 
 
 ^ First session First Congress, Journal, p. 7. (Gales and Seaton ed.") 
 
 ■• Journal, p. 11. 
 
 ^ Journal, p. 43. 
 
 ^ Journal, p. 44.
 
 § 131 THE OATH. 85 
 
 to all the Members and Delegates present, and to the Clerk, previous to entering on any other business; 
 and to the Members and Delegates who afterward appear, previous to their taking their seats.' 
 
 131. It has long been the practice for the Member of longest con- 
 tinuous service to administer the oath to the Speaker. — On December 22, 
 1849,^ the oath was administered to Speaker Howell Cobb by Mr. Tiinn Boyd, of 
 Kentucky, the oldest Member. The Speaker descended from liis seat to lake the 
 oath.^ 
 
 132. On December 5, 1853,* the oath of oiEce was administered to Mr. Speaker 
 Bovd bv ilr. Joshua R. Giddings, of Oliio, " the oldest consecutive Member of the 
 House." 
 
 133. On February 1, 1860,^ Mr. John S. Phelps, of Missouri, " the oldest con- 
 secutive Member of the House," administered the oath to Mr. Speaker Pennington. 
 
 134. The Speaker possesses no arbitrary power in the administration 
 of the oath, and if there be objection the majority of the House must 
 decide. — On January 24. 1871." Mr. P. M. B. Young, of Georgia, presented the 
 credentials of Stephen A. Corker, of the Fifth Congressional district of Georgia, and 
 asked that the oath be administered to him. 
 
 Mr. Benjamin F. Butler, of Massachusetts, objected to the administration of 
 the oath. 
 
 Mr. James Brooks, of New York, made the point of order that, when credentials 
 in regular form were presented, they did not form a subject of discussion. 
 
 The Speaker ' said : 
 
 In the organization of the House Members who have credentials from the governors of their respective 
 States are entered upon the Clerk's list, and no man is prejudiced, of course. The House is organized 
 upon the list so made up. But gentlemen coming subsequently are sworn in by the Chair, if there is 
 no objection. The Chair administers the oath in cases where there is no objection; but if there be 
 objection, of course it is a matter which must be determined by the majority of the House. The Chair 
 possesses no arbitrary power in the matter whatever. It is a matter which must be determined by a 
 majority of the House. If it were pre\'ious to the organization of the House, of course the gentleman's 
 credentials would be entered on the Clerk's list and he would be sworn in with the other Members. 
 
 ' 1 Statutes at Large, p. 23, gives the form of oath at that time as follows: "I, A B, do solemnly 
 swear or affirm (as the case may be), that I will support the Constitution of the United States." 
 
 On January 21, 1884, the House passed the bill (H. R. 3926) repealing the act of July 2, 1862, and 
 such sections of the Re\'ised Statutes of the United States as perpetuated the oath prescrilied in that 
 act. This was the repeal of the "test oath," so called. The bill became a law. (First session Forty- 
 eighth Congress, Journal, pp. 375, 1233; Record, pp. 551, 1420.) On July 27, 1867 (first session Thirty- 
 ninth Congress, Journal, p. 1168; Globe, pp. 4267-4273), the House laid on the table by a vote of 87 to 
 31 a joint resolution of the Senate for the purpose of allowing David T. Patterson, of Tennessee, to 
 take his seat in the Senate without taking the whole of the test oath required by law. 
 
 The subject of subscribing to the oath by Senators and Representatives was discussed somewhat in 
 the Senate on December 19, 1883, when a rule was adopted to enforce the provisions of the Statute. It 
 was stated in the debate that Senators had not until recently subscribed to the oaths. (First session 
 Forty-eighth Congress, Record, p. 171.) 
 
 ^ First session Thirty-first Congress, Globe, p. 67. 
 
 ^ But this is not the present practice. The Speaker stands in his place at his desk, while the Member 
 administering the oath stands in the area in front of the Clerk's desk. 
 
 * First session Thirty-third Congress, Globe, p. 2. 
 
 5 First session Thirty-sixth Congress, Journal, p. 165; Globe, p. 655. 
 
 * Third session Forty-first Congress, Globe, p. 703. 
 ' James G. Blaine, of Maine, Speaker.
 
 86 
 
 PKECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 §135 
 
 135. If a Member object the Speaker does not administer the oath 
 to a Member-elect without the direction of the House, even though the 
 credentials be regular in form. — On September 10, 1850,^ Mr. Linn Boyd, of 
 Kentucky, presented the credentials of Edward Gilbert and George W. Wright, 
 Member-elect from the State of California. Mr. Boyd stated that the Members- 
 elect were present and were ready to take the usual oath. 
 
 Mr. Abraham W. Venable, of North Carolina, objected to the administration of 
 the oath, and moved that the credentials be referred to the Committee of Elections. 
 
 Mr. James Thompson, of Pennsylvania, made the point of order that it was the 
 duty of the Speaker to administer the usual oath upon the presentation of their 
 credentials. 
 
 The Speaker ^ decided that, inasmuch as the fifth section of the first article of 
 the Constitution constituted "each House the judge of the elections, returns, and 
 qualifications of its own Members," whenever objection was made it was the duty 
 of the House, and not of the Speaker, to determine whether or not the oath should 
 be administered. He therefore overruled the point of order. 
 
 Mr. Thompson having appealed, the appeal was laid on the table. 
 
 136. On July 3, 1867,^ after the organization of the House, the credentials 
 of eight Members from Kentucky were presented and the gentlemen presented 
 themselves to be sworn. 
 
 Mr. Robert C. Schenck, of Ohio, at this point presented a protest against the 
 administration of the oath to one of the gentlemen, Mr. John D. Young, on the 
 ground that he had been disloyal to the Government during the war. 
 
 Mr. Charles A. Eldridge, of Wisconsin, having raised a question of order, the 
 Speaker^ said: 
 
 The Chair rule.s, in accordance with the uniform usage of the present occupant of the chair and of 
 every occupant of the chair, that it is for the House to determine what action it will take when a gen- 
 tleman, claiming to have been elected a Representative, presents himself to be sworn. It is for the 
 House to determine. 
 
 Later the Speaker referred, in support of his ruling, to the precedent of July 24, 
 1866, when Mr. William B. Stokes, of Tennessee, was challenged when he appeared 
 to take the oath, and his credentials were referred to the Committee on Elections. 
 
 137. On March 7, 1867," Mr. William E. Niblack, of Indiana, presented the 
 credentials of A. B. Greenwood, claiming a seat as a Member from Arkansas, and 
 moved that the same be referred to the Committee on Elections. 
 
 Mr. Thaddeus Stevens, of Pennsylvania, moved that the credentials be laid on 
 the table, and the motion was agreed to. 
 
 A question being made as to whether or not Mr. Greenwood might not be sworn 
 in on the presentation of the credentials, the Speaker * said that the oath would not 
 be administered if there was objection, and that objection had been indicated by 
 the motion to lay on the table. 
 
 ' First session Thirty-first Congress, Journal, p. 1442; Globe, pp. 1789, 1790. 
 
 ^Howell Cobb, of Cieorgia, Speaker. 
 
 'Fii'st session Fortieth Congress, Globe, pp. 470, 471. 
 
 * Schuyler Colfax, of Indiana, Speaker. 
 
 * First session Fortieth Congress, Journal, p. 21 ; Globe, p. 25.
 
 § 138 THE OATH. 87 
 
 138. On December 6, 1869,^ at the beginning of the second session of the Con- 
 gress, a question being raised as to the administration of the oath to certain 
 Members, Mr. Speaker Blaine said : 
 
 The Chair did not propose to administer the oath to any gentleman to whose admission a single 
 Member on the floor might make objection. The usage has alwaj's been, when there was no objection, 
 to allow a Member to be sworn in without any further ceremony. 
 
 139. In 1866 the Speaker declined to administer the oath to persons 
 whose credentials were regular, but who came from States declared by 
 the two Houses not entitled to representation at the time. — On July 23, 
 1866,^ Mr. Lawrence S. Trimble, of Kentucky, proposed, as a question of privilege, 
 that the oath be administered to Messrs. N. G. Taylor, J. W. Leftwich, and Edward 
 Cooper, Members-elect from the State of Tennessee. 
 
 The Speaker ^ said : 
 
 The Constitution does declare that each House shall be the judge of the elections, returns, and 
 qualifications of its own Members; but the House of Representatives has decided, with the concurrence 
 of the Senate, that certain States, not represented during the la-st four years in the Congress of the United 
 States, shall not be entitled to representation again until by concunent action of both branches they 
 shall be declared to be entitled to representation. The House therefore declared it had no constitu- 
 tional right so to judge. The Chair overrules the demand that the gentlemen claiming seats from Ten- 
 nessee shall be sworn in. 
 
 Mr. Trimble having appealed, the appeal was laid on the table — yeas 119, 
 nays 30. 
 
 140. The Members-elect having denied to certain of their number a 
 right to participate in the organization, the Speaker declined, without 
 instruction of the House, to administer the oath to those thus debarred, 
 although they presented certificates in proper form. 
 
 In 1839 the House refused to direct the Speaker to administer the 
 oath to certain persons having regular credentials as Members-elect, and 
 as organ of the House he declined to administer the oath. 
 
 In 1839 the House declined to adopt rules until the Members had been 
 sworn in according to the Constitution and law of 1789. 
 
 On December 9, 1839, at the organization of the House,* when the clerk, in 
 calling the roll, had reached the State of New Jersey and had called the name of 
 Mr. Joseph F. Randolph, he paused and explained that as to the other five members 
 from that State there was conflicting evidence as to who were entitled to the seats. 
 Messrs. John B. Aycrigg, John P. B. Maxwell, William Halstead, Charles C. Stratton, 
 and Thomas J. Yorke had certificates from the governor of the State. On the 
 other hand, the Clerk had in his possession certificates from the secretary of state of 
 New Jersey showing that Messrs. Philemon Dickcrson, Peter D. Vroom, Daniel B. 
 Ryal, William R. Cooper, and Joseph Kille had received the greatest number of 
 votes.^ The controversy over these New Jersey seats was prolonged until December 
 
 ' Second session Forty-first Congress, Globe, p. 9. 
 
 2 First session Thirty-ninth Congress, Journal, pp. 1088, 1089; Globe, pp. 4055, 4056. 
 
 ^Schuyler Colfax, of Indiana, Speaker. 
 
 ^ First session Twenty-sixth Congress, Globe, pp. 1, 30, 50, 48; Journal, p. 80. 
 
 ' Section 31, Revised Statutes, under which the Clerk is now directed to place on the roll such 
 Members as have credentials showing them to be regularly elected, is made up of laws passed in 1863 
 and 18G7, dates later than the events above recorded.
 
 88 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 140 
 
 16 before a Speaker was elected. In the election of Speaker the contestants on 
 neither side voted, the other Members present having formally voted that the five 
 holding the governor's certificate should not vote. The Speaker having delivered 
 his address and the Journal of the previous session having been read, Mr. George C. 
 Dromgoole, of Virginia, moved that the rules of the last House be adopted as the 
 rules of the present House. Mr. Lewis Williams, of North Carolina, moved that 
 this motion lie on the table until the " Members of the House shall have been sworn 
 into office, as required by the Constitution, and by the act of June 1, 1789."' This 
 motion was carried by a vote of 117 j'eas to 116 nays, the Speaker voting aye. In 
 the debate the point was made that under the law of 1789 the oaths should be 
 administered to Members before business could begin. 
 
 The oaths having been administered to all the Members and Delegates, the 
 Speaker ' informed the House '' that the five gentlemen from New Jersey holding 
 the governor's certificate had presented themselves at the desk and demanded to be 
 sworn into office. The Speaker further stated that, in consequence of the proceed- 
 ings which had already taken place in relation to the rights of these gentlemen to 
 seats in this House and which were to be found in the Journals, he had declined 
 to administer to them the oath of office, although his own opinion, heretofore expressed 
 in another situation that they were entitled to qualify, was unchanged. He there- 
 fore submitted their demand to be sworn to the House. 
 
 Various motions having been submitted and withdrawn during several days of 
 debate, on December 20 Mr. George Evans, of Maine, finally offered the following: 
 
 Resolved, That the Representatives of the Twenty-sixth Congress of the United States now present 
 do advise and request the Speaker to administer the oath required by law to the five gentlemen from 
 the State of New Jersey who have presented their credentials to the Spealcer and demanded to be sworn. 
 
 This resolution was defeated, yeas 112, nays 116.* In the course of the debate ^ 
 the case of Mr. Land on (Lanman), in the Senate of 1825,° was referred to; also the 
 case of Claiborne and Gholson in 1837,' in the House. The Speaker, in the course 
 of the debate,* said that in regard to the duty of the Chair in swearing in the New 
 Jersey Members he would say that he was merely the organ of the House, and 
 whether it was a House de facto or de jure was not a question for him to decide; 
 but being its organ, he was bound to carry out the decisions that it had made and 
 which were staring him in the face. 
 
 Mr. John Quincy Adams, during the debate, contended ' that it was not compe- 
 tent for the House to entertain the previous question or any other motion while 
 the question of the right of the New Jersey Members to be sworn was pending. 
 
 ' Now section 30, Revised Statutes. 
 ' Robert M. T. Hunter, of Virginia, Speaker. 
 ' Journal, p. 87. 
 < Journal, p. 92. 
 6 Globe, p. 59. 
 
 6 This occurred March 4, 1825. See Contested Elections in Congress, 1789 to 1834, p. 871. 
 ' First session Twenty-Fifth Congress, Journal, pp. 3. 4, 71, 91, 106, 110, 117, 137, 139. The election 
 of these men was questioned at the organization, but they were sworn in. 
 s Globe, p. 65.
 
 § 1-41 THE OATH. 89 
 
 Mr. Evans's resolution having been defeated, a resolution adopting rules was 
 agreed to/ and then the organization of the House was completed by the election 
 of a Clerk and other officers. The cases of the New Jersey Members were referred 
 to the Committee on Elections, and ultimately the delegation, headed by Mr. Dick- 
 erson, was seated.' 
 
 141. The fact that a Member-elect has not taken the oath does not 
 debar him from challenging the right of another Member-elect to be 
 sworn. — On INIarch 4. 1871.^ while the Speaker was administering the oath to 
 the Members-elect at the organization of the House the name of Mr. Alfred M. 
 Waddell, of North Carolina, was called. 
 
 Mr. Horace Maynard, of Tennessee, upon his authority as a Member of the 
 House, charged that Mr. Waddell was disqualified, and objected to the administra- 
 tion of the oath to him. 
 
 Mr. Charles A. Eldndge, of Wisconsin, raised the question of order that Mr. 
 Maynard had not been sworn, and therefore might not make the objection. 
 
 The Speaker * said : 
 
 He is a Member of the House. If he were not, the Chalrwould of course not recognize him. * * « 
 The gentleman from Tennessee clearly has the right to raise this question. 
 
 142. On a question raised while the oath is being administered to 
 Members the right to vote is not confined to those already sworn in. — On 
 March 4, 1869,' at the organization of the House, after a Speaker had been elected 
 and while the Members-elect were taking the oath, a question was raised as to the 
 qualifications of Messrs. Boyd Winchester and John M. Rice, of Kentucky, and a 
 motion was made to refer their credentials to the Committee on Elections with 
 instructions. On this motion the previous question was ordered and the vote was 
 about to be taken when Mr. Charles A. Eldridge, of Wisconsin, raised the question 
 of order that none but those sworn in had the right to vote. 
 
 The Speaker * said: 
 
 The Chair overrules the point of order. The uniform usage of the House is otherwise. 
 
 143. It has been held, although not uniformly, that in cases where 
 the right of a Member-elect to take the oath is challenged the Speaker 
 may direct the Member to stand aside temporarily. — On March 4, ISGO," at 
 the organization of tlie House and while the Speaker was administertag the oath 
 to Members-elect, objection was made to the swearing in of Mr. Patrick Hamill, of 
 Maryland. Mr. Hamill was asked to step aside until other Members, about whom 
 there was no question, should be sworn. 
 
 Mr. J. Proctor Knott, of Kentucky, made the point of order that the duty 
 devolved upon the Speaker by law to swear in each Member as he presented him- 
 
 ' Journal, p. 95. 
 
 = Globe, p. 256; Journal, p. 1297. 
 
 ' First session Forty-second Congress, Globe, p. 6. 
 
 * James G. Blaine, of Maine, Speaker. 
 
 ' First session. Forty-first Congress, Globe, p. 6. 
 
 " First session Forty-first Congress, Journal, p. 7; Globe, pp. 6, 13.
 
 90 PBECEDENTS OF THE HOUSE OF EEPKESENTATIVES. § 144 
 
 self for that purpose; it was not for the Speaker to decide whether he could prop- 
 erly take the oath or not. Moreover, the House could not discharge any of its 
 functions, either legrislative or quasi judicial, which were conferred on it by the 
 Constitution, until it was organized. Therefore there was no power, either in the 
 Speaker or the House, at present to exclude a Member-elect from taking the oath. 
 
 The Speaker ' replied that the Chair had not assumed to exclude any Member- 
 elect from taking the oath. But the gentleman from Marjdand, in order to relieve 
 the embarrassment of the House, voluntarily withdrew, as he had a right to do, 
 from those who had presented themselves to take the oath. 
 
 144. On March 4, 1869,- at the organization of the House objection was made 
 to the taking of the oath by Messrs. Boyd Winchester and John M. Rice, of Kentucky. 
 ^Tien the Speaker ' requested them to step aside until the remaining Members had 
 taken the oath, objection was made. The Speaker thereupon stated that the ques- 
 tion must be met at once, and a resolution, reciting the allegations against the two 
 gentlemen and providing that they should not be sworn in until after an investiga- 
 tion had been made, was presented. 
 
 145. On December 5, 1881,^ at the organization of the House the Speaker 
 was administering the oath to Members, and the State of Alabama had been called. 
 As Mr. Joseph Wlieeler presented himself to be sworn Mr. George W. Jones, of 
 Texas, objected, and asked that Mr. Wheeler stand aside. 
 
 The Speaker having directed Mr. Wheeler to stand aside, Mr. Samuel J. Randall, 
 of Pennsylvania, raised the point of order that the stepping aside of a gentleman 
 who had been thus challenged was a voluntary act, and in support of this point he 
 cited the proceedings in the Forty-first Congress. 
 
 After debate the Speaker * said : 
 
 The Chair is inclined to hold that he has the power to designate the order in which Members may be 
 called and sworn in. Unquestionably the Chair has no right to decide upon the title of any Member. 
 
 * * * If any gentleman is objected to, for mere convenience of proceeding the Chair will ask the 
 gentleman objected to to stand aside. He having stood aside, and all others not objected to having been 
 sworn in, the Chair will at once require the roll to be called for those persons who have been objected 
 to and will swear them in, unless there shall be some good reason given upon which the House may act 
 and direct the Chair otherwise. * * * This is a matter of order, wholly within the control of the 
 Chair for the convenience of procedure. 
 
 A resolution relating to Mr. Wheeler's case having been presented and laid on 
 the table, the Speaker said: 
 
 The Chair will state, there being no motion before the House, in the absence of instructions he will 
 regard it his duty to proceed to swear in the Member. 
 
 Accordingly the oath was administered to Mr. "VMieeler. 
 
 146. At the organization of the House on ilarch i, 1871,^ after the Speaker 
 had been elected and while he was administering the oath to the Members, the 
 name of Mr. Alfred M. Waddell, of North Carolina, was called. Mr. Waddell's 
 name was on the roll and he had participated in the election of Speaker. ^Ir. Horace 
 
 ' James G. Blaine, of Maine, Speaker. 
 
 ^ First session Forty-first Congress, Journal, p. 7; Globe, p. 6. 
 
 ^ First session Forty-seventh Congress, Record, pp. 9-13. 
 
 *J. Warren Keifer, of Ohio, Speaker. 
 
 'First session Forty-second Congress, Globe, pp. 7, 11.
 
 § 1-17 THE OATH. 91 
 
 Majmard, of Tennessee, challenged his right to be sworn, on the ground that he was 
 ineligible under section 3 of article 14 of the Constitution, since after taking an oath 
 as a civil officer of North Carolina to support the Constitution of the United States 
 he had subsequently participated in the war of secession, thereby becoming dis- 
 qualified for a seat in Congress. 
 
 When this objection was made the Speaker said that he would first swear in 
 those Members against whom there was no objection. 
 
 This was done, and later on the same day the House voted to allow Mr. Waddell 
 to take the oath, and referred his credentials to the Committee on Elections.' 
 
 147. When, at the organization of the House, several Members-elect 
 are challenged and stand aside, the question is first taken on the Member- 
 elect first required to stand aside. — On October l.">. 1877,= at the time of the 
 organization of the House, objection was made to the swearing in of several Mem- 
 bers, and they stood aside. On October 16 their cases were considered, and Mr. 
 Eugene Hale, of Maine, called up, as a question of privilege, the case of James B. 
 Belford, of Colorado. 
 
 Mr. Samuel S. Cox, of New York, made the point of order that the question 
 must first be taken on the case of the Member first required to stand aside. 
 
 The Speaker ' sustained the point of order. (Journal, p. 15; Record, p. 60.) 
 
 148. On December 0, 1875,* at the time of the organization of the House, 
 objection was made to the swearing in of several Members. During the proceed- 
 ings Mr. James A. Garfield made the point of order that in the consideration of 
 these cases the question should be first taken on the one who was first called on to 
 stand aside. 
 
 The Speaker ^ sustained the point of order. 
 
 149. When Members-elect are challenged at the time of taking the 
 oath motions and debate are in order on the questions involved in the 
 challenge; and in a few cases other business has intervened by unani- 
 mous consent.— On July 4, ISCI," the Speaker had been elected and was about to 
 proceed to administer the oath to Members when Mr. Thaddeus Stevens, of Peim- 
 sylvania, moved that such names upon the roll as should be objected to, when 
 called, be passed over until other Members should be sworn in. Mr. Schuyler 
 Colfax, of Indiana, proposed an amendment by inserting the words "as may be 
 contested" in place of "as should be objected to." Mr. Colfax explained that he 
 did this because there was a question as to one or more of the Virginia delegation, 
 although their seats were not contested. 
 
 Mr. Samuel R. Curtis, of Iowa, made the point of order that both the motion 
 and the amendment were out of order, as the House was still in an unorganized 
 condition. The first business was to perfect the organization, and until that was 
 done such motions were not in order. 
 
 ' The Journal indicates that there was at this time no contest for this seat. 
 
 - First session Forty-fifth Congress, Journal, p. 15; Record, p. 60. 
 
 ' Samuel J. Randall, of Pennsylvania, Speaker. 
 
 * First session Forty-fourth Congress, Record, pp. 167-171. 
 
 ^ Michael C. Kerr, of Indiana, Speaker. 
 
 ' First session Thirty-seventh Congress, Journal, p. 12; Globe, p. 5.
 
 92 PBECEDENTS OF THE HOUSE OF EEPEESENTATIVES. § 150 
 
 The Speaker ' overruled the point of order. 
 
 Mr. Stevens's motion was then amended, and as amended was agreed to. 
 
 The names of all those whose seats were not contested having been sworn in, 
 Mr. Ellihu B. Washburne, of Illinois, moved that the rules of the last House of 
 Representatives be adopted as the rules of this House. 
 
 The Speaker said: 
 
 The first business to be done is the qualification of Members, and until that business is disposed of 
 the Chair thinks it is not proper to do any other business. 
 
 150. On March 4, 1869,- at the organization of the House, the Speaker was 
 administering the oath to the Members-elect, when the right of Mr. Patrick Hamill, 
 of Maryland, to take the oath was challenged. Debate having begun upon Mr. 
 Hamill's case, Mr. Ebon C. Ingersoll, of Illinois, made the point of order that debate 
 was not in order on the question. 
 
 The Speaker ^ held that debate was entirely in order, as the House was con- 
 sidering a question of the highest privilege. 
 
 Mr. Jolui F. Farnsworth, of Illinois, made the point of order that as the Mem- 
 bers had not all been sworn in there was no House to vote on the question. 
 
 The Speaker overruled the point, sajong that the present mode of procedure 
 was that warranted by all the precedents. He also said in connection with a simi- 
 lar point of order raised later that he considered the House in its present state 
 competent to enforce the previous question. Such was the case even in the pre- 
 liminary stage of the proceedings for organization on that day before the Clerk 
 had called the roll for the election of Speaker. The House had certainly lost none 
 of its powers by the election of Speaker and by its proceeding so far in the business 
 of organization. 
 
 151. By unanimous consent the House has proceeded to legislative 
 business pending decision as to the right of a Member to be sworn in. — 
 On October 15, 1877,"' at the time of the organization of the House, objection was 
 made to the swearing in of several Members, and they stood aside. Before the 
 determination of the right of these challenged Members-elect to be sworn the organ- 
 ization of the House was completed and seats were dra^vTi. On October 16 the 
 House considered the cases of two of those challenged, and then the reading and 
 reference of the President's message intervened before the disposal of the remain- 
 ing cases. It does not appear that unanimous consent was formally asked for 
 these interruptions. 
 
 152. On March 18, 1879,^ at the time of the organization of the House, objection 
 was made to the swearing in of Mr. Noble A. Hull, of Florida. The consideration 
 of Ml-. Hull's case was about to begin when Mr. William P. Frye, of Maine, requested 
 that it be postponed until the next day. 
 
 ' Galusha A. Grow, of Pennsylvania, Speaker. 
 
 ^ First session Forty-first Congress, Journal, p. 7; Globe, p. 6. 
 
 ' James G. Blaine, of Maine, Speaker. 
 
 ■• First session Forty-fifth Congress, Journal, p. 20; Record, p. 69. 
 
 ^ First session Forty-sixth Congress, Record, pp. 6, 27.
 
 § 153 THE OATH. 93 
 
 Mr. Fernando Wood, of New York, objected. 
 
 The consideration of the case thereupon proceeded, but later, by unanimous 
 consent, the matter was postponed until the next day/ 
 
 153. Questions as to the credentials and qualifications of Members- 
 elect may, by general consent, be deferred until after the election of 
 Speaker and swearing in of Members. — On July 4, 1861,= at the time of the 
 organization of the House, while the Clerk was calling the names of the Members- 
 elect by States, several questions were raised as to the credentials and qualifications 
 of Members-elect, but by general consent the determination of these matters was 
 waived until after the election of a Speaker and the administration of the oath to 
 Members. 
 
 154. In 1861 it was held that the House might direct contested 
 names on the roll to be passed over until the other Members-elect were 
 sworn in. — On July 4, 1861,^ at tne organization of the House, after the Speaker 
 had taken the chair, and before administering the oath to such of the Members as 
 were present, it was voted, on motion made by Mr. Thaddeus Stevens, of Pennsjd- 
 vania, as amended on motion of Mr. Schuyler Colfax, of Indiana, that such names 
 on the roll as might be contested should, when called, be passed over until the 
 other Members were sworn in. 
 
 The Speaker * overruled a question of order that the motion was not in order 
 prior to the completion of the organization. 
 
 155. A Member-elect challenged as he is about to take the oath is not 
 thereby deprived of any right, and the determination of his case has pri- 
 ority of those of persons claiming seats but not on the Clerk's roll. — On 
 October 15, 1877,^ at the time of the organization of the House, while the oath was 
 being administered to the Members-elect, several Members-elect were challenged 
 and required to step aside. 
 
 On October 16, after the organization of the House had been perfected, the 
 cases of these challenged Members were taken up. 
 
 Mr. Eugene Hale, of Maine, proposed to call up the case of the Representative 
 from Colorado, from which State no name had been placed on the roll. 
 
 Mr. Samuel S. Cox, of New York, raised the question of order that those fu-st 
 challenged should be first considered. 
 
 After debate, the Speaker " said: 
 
 In the opinion of the Chair, the proposition that before taking up the case of any gentleman whose 
 name was not upon the roll at all the House shall consider the qualifications of Members upon the roll 
 who were asked to step aside is reasonable and right and in accord with the practice. Any other ruling 
 would work great hardship. These gentlemen were placed upon the roll by the Clerk under the law, 
 and upon the objection of an individual Member, which in its nature is arbitrary and might be factious, 
 they were prevented from being sworn in. The Chair stated yesterday that such a single objection 
 did not deprive those gentlemen of any right which they possessed, and if the occasion had presented 
 
 ' See also the Roberts case in the Fifty-sixth Congress. (Sec. 474 of this work.) 
 
 = First session Thirty-seventh Congress, Globe, p. 3. 
 
 ^ First session Thirty-seventh Congress, Journal, p. 12; Globe, p. 5. 
 
 *Galusha A. Grow, of Pennsylvania, Speaker. 
 
 'First session Forty-fifth Congress, Record, pp. 59, GO. 
 
 ^Samuel J. Randall, of Pennsylvania, Speaker.
 
 94 PRECEDENTS OF THE HOUSE OF KEPRESENTATIVES. § 156 
 
 itself these gentlemen, in the opinion of the Chair, would have had the right to vote, as they did in fact 
 vote, upon the election of Speaker, in the same manner as though they had been sworn in. For these 
 reasons the Chair sustains the point of order of the gentleman from New York. 
 
 156. Members-elect challenged for alleged disqualifications have in 
 several cases been sworn in at once, the qxiestion of their qualifications in 
 some cases being referred to a committee for examination. — On July 4, 
 1861/ at the organization of the House, the Speaker^ was administering the oath 
 to the Members-elect. Wlien the State of Virginia was called, Mr. Henry C. Bur- 
 nett, of Kentucky, offered this resolution: 
 
 Resolved, That the question of the right of Charles H. Upton, William G. Brown, R. V. Whaley, 
 John S. Carlile, and E. H. Pendleton, to seats upon this floor, be referred to the Committee on Elections, 
 when formed, and that they report to this House thereon. 
 
 It appears from the debate that there was a question as to whether or not 
 Mr. Upton was a citizen of Virginia, it being alleged that he was a citizen of Ohio 
 and that he had voted there at the last election. 
 
 Both Mr. Upton and his associates were among those whose names were on 
 the roll as made up by the Clerk and they had voted in the election of Speaker. 
 
 On motion of Mr. John A. McClernand, of Illinois, the resolution was laid on 
 the table, and the Virginia Members took the oath. 
 
 157. On March 4, 1869,^ the Speaker having been elected and having 
 addressed the House, the swearing in of the Members was proceedmg, and the name 
 of Mr. Patrick Hamill, of Maryland, had been called, when Mr. Benjamin F. Butler, 
 of Massachusetts, objected to Mr. Hamill on the ground that he had been disloyal 
 during the war. Mr. Butler proposed a resolution that Mr. Hamill be not allowed 
 to take the oath until his case should be investigated by the Committee on Elections.'' 
 
 On March 5, when the case was again taken up, Mr. Butler stated that he had 
 examined the case carefully and was of the opinion that the prima facie case, as 
 made out by the certificate of the governor, ought at the present time to prevail, 
 and that Mr. Hamill ought to be admitted to his seat. 
 
 A resolution was therefore presented and agreed to that Mr. Hamill be now 
 sworn in and that the papers submitted in this case be sent to the Committee on 
 Elections when appointed. Mr. Hamill therefore took the oath. Mr. Hamill had 
 previously participated in the proceedings of organization, having answered to his 
 name on the vote for Speaker. 
 
 158. On March 4, 18G9,'* at the organization of the House, objection was made 
 to administering the oath to Messrs. Boyd Winchester and John M. Rice, of Ken- 
 tucky, who were on the roll and had voted for Speaker. It was alleged that they 
 were disloyal during the war. A resolution was presented reciting the allegations 
 against them and providing that the oath should not be administered to them. 
 
 'First session Thirty-seventh Congress, Journal, p. 12; Globe, pp. fi, 7, 13. 
 
 ^Galusha A. Grow, of Pennsylvania, Speaker. 
 
 ^ First session Forty-first Congress, Journal, pp. 4, 5, 10; Globe, pp. 6, 10, 13. 
 
 *The Journal indicates that there was no contest for Mr. Hamill's seat (First session Forty-first 
 Congress, p. 291). It does not appear that Mr. Hamill was afterwards disturbed in the possession of his 
 seat. 
 
 'First session Forty-first Congress, Journal, pp. 4, 5, 10; Globe, pp. 10, 13.
 
 § 159 THE OATH. 95 
 
 Explanations of the charges being made, the resolution was withdrawn, and on 
 March 5 the oath was administered to them b}" order of the House.' 
 
 159. On December 3. 1889,- during the organization of the House, as the 
 Speaker was administering the oath to the Members, and as the State of Kansas was 
 called, Mr. William M. Springer, of Illinois, asked that Mr. S. R. Peters, of Kansas, 
 stand aside. 
 
 The Speaker ^ directed Mr. Peters to stand aside. Mr. Springer then presented 
 a memorial from the governor and State officers of Kansas reciting that Mr. Peters, 
 who had been elected judge for the four years ending Januarj', 1884, was disquali- 
 fied by the terms of the constitution of that State from holding any other office 
 imder the State or United States, and proposed a resolution referring the case to 
 the Committee on Elections for examination as to whether Mr. Peters was entitled 
 to the seat, and also to examine the claims of Mr. S. N. Wood, who contested the seat. 
 
 The Speaker suggested that the swearing in of a Member being a matter of the 
 very liighest privilege, the oath should be first administered, and then the resolution 
 might be offered. 
 
 This was accordingly done. Mr. Peters's cjualifications were afterwards 
 examined and he was declaretl entitled to the seat. 
 
 160. Under exceptional circumstances the House admitted to a seat 
 a Member-elect who failed to present himself until near the expiration of 
 the Congress. — On February 2o, 18G8,* the House voted to admit to his seat Mr. 
 George W. Bridges, of Tennessee, who had been elected at the regular Congressional 
 election in his State in 1861, but who had been unable to appear in his place when 
 Congress met in December of that year because he had been captured by the Con- 
 federates and detained a prisoner. As soon as he could escape he made his way, 
 arriving at Washington so as to appear in the House February 25, a few days before 
 final adjournment. 
 
 161. Instance wherein a Member-elect appeared and took the oath 
 several months after the organization of the House. — On April 19, 190G.^ 
 Mr. Malcolm R. Patterson, of Tennessee, appeared and took the oath. He had 
 been regularly elected in November, 1904, as a Member of this Congress, but had 
 not appeared at the organization of the House on the first Monday of December, 
 1905, nor thereafter until this date. No question was raised as to his right to 
 qualify. 
 
 162. Although the House has emphasized the impropriety of swear- 
 ing in a Member without a certificate, it has sometimes been done by 
 unanimous consent. — On April 20, ISTl." Mr. Omar D. Conger, of Michi- 
 gan, proposed a resolution providing that Wilder D. Foster, Member-elect from 
 the Fourth Congressional district of Michigan, be sworn in. Mr. Conger explained 
 
 ' The Journal (first session Forty-first Congress, p. 291) indicates that there was a contest for Mr. 
 Rice's seat, but not for Mr. Winchester's. 
 
 ^ First session Forty-eighth Congress, Record, p. 6. 
 
 'John G. Carlisle, of Kentucky, Speaker. 
 
 * Third session Thirty-seventh Congress, Journal, pp. 489, 490; Globe, pp. 1295, 1296. 
 
 ^ First session Fifty-ninth Congress, Record, p. 5523. 
 
 ^ First session Forty-second Congress, Globe, p. 833.
 
 96 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 163 
 
 that the official certificate of Mr. Foster had not been received, but it was apparent 
 from telegrapiiic reports of the canvass that he had been elected by a majority of 
 several thousand. 
 
 A question arose, and while it was generally assumed that by unanimous con- 
 sent Mr. Foster might properly be admitted to take the oath, yet it was objected 
 that admission should be as a matter of right, and that it was improper to admit 
 without a certificate of some Idnd. Because of the objection Mr. Conger withdrew 
 the resolution. 
 
 163. On December 1, 1879,^ Mr. Waldo Hutchins, of New York, was sworn 
 in without the presentation of the regular certificate required by law, which had 
 not been issued because the State canvassers would not meet under the law for 
 several days. But the county canvassers had shown his election unmistakably, 
 and there was no contest or question. Therefore, by unanimous consent, the House 
 allowed Mr. Hutchins to be sworn in, although distrust of the precedent was 
 expressed. 
 
 164. On December 6, 1886," at the beginning of the second session Mr. Abram 
 S. Hewitt, of New York, as a question of privilege, presented a letter from the 
 secretary of state of New York stating that the returns officially received showed 
 the election of Mr. Samuel S. Cox to fill the vacancy caused by the resignation of 
 Mr. Joseph Pulitzer, of the Ninth Congressional district of New York, and that 
 the proper certificate of election would be issued as soon as the board of canvassers 
 should meet. 
 
 There being no objection, the Speaker administered the oath to Mr. Cox. 
 On the same day and under similar circumstances the oath was administered 
 to Mr. Henry Bacon, of New York. 
 
 165. On December 1, 1890,' after several Members presenting regular certifi- 
 ficates of election had been sworn in, the request was made that Mr. John S. Pindar, 
 of the Twenty-fourth district of New York, be sworn in. The official certificate 
 from the secretary of state of New York had not arrived, but the certificate of the 
 county canvassers showing the result of the election was presented at the Clerk's 
 desk. By imanimous consent the oath was administered to Mr. Pindar. 
 
 The request was then made that Mr. E. R. Hayes, of Iowa, be sworn in. It 
 was stated by a Member of the Iowa delegation, Mr. David B. Henderson, that 
 there was no question of Mr. Hayes's election, but by some error the certificate 
 had not been transmitted. He presented the letter in which tlie certificate was 
 supposed to have been transmitted, but in which by mistake another paper had 
 been inclosed. 
 
 Pending the request for unanimous consent, it was suggested by Mr. Charles F. 
 Crisp, of Georgia, "that the House sometimes accepts, in lieu of a formal certificate 
 (as in the case of the gentleman from New York, Mr. Pindar, to which consent has 
 just been given), the certificate of the local boards of county canvassers. But so 
 far as I Icnow a Member presenting himself to be sworn in must have some kind of 
 
 ' Second session Forty -sixth Congress, Journal, p. S; Record, p. 10. 
 ^Second session Forty-ninth. Congress, Journal, p. 9; Record, p. 14. 
 
 'Second session Fifty-first Congress, Journal, p. 5; Record, p. 11. Thomas B. Reed, of Maine, 
 Speaker.
 
 § 166 THE OATH. 97 
 
 a certificate or some authority from some source having charge of the election to 
 warrant the granting of the request." No objection was made, however, and Mr. 
 Hayes was sworn in. 
 
 In a similar manner the oath was administered to 'Mr. Robert H. Whitelaw, 
 of the Fourteenth district of Missouri, whose certificate had not arrived. In this 
 case a semiofficial statement from the secretarj- of state of Missouri, giving the 
 figures of the election, was presented by a colleague. 
 
 On May 5, 1896,' at the request of J^Ir. Charles Daniels, of Xew York, and by 
 unanimous consent, the oath was administered to Mr. Rudolph Kleberg, of Texas, 
 who presented an informal statement to the Speaker, signed by the governor, 
 secretary of state, and attorney-general of Texas, who stated "upon general and 
 reliable unofficial informatipn" that Mr. Kleberg had been elected. 
 
 On December 19, 1896,' on motion of Mr. Henj}- G. Turner, of Georgia, and 
 by imanimous consent, the oath was administered to Mr. Charles R. Crisp, of 
 Georgia, who presented an informal letter from the governor of Georgia to the 
 Speaker, informing him that there was only one candidate at the election and that 
 the commission would be forwarded as soon as the returns were received.-^ 
 
 166. On March 2, 1894,* Mr. William S. Holman, of Indiana, announced 
 that Mr. Galusha A. Grow, of Pennsylvania, had been elected a Member of the 
 House from Pennsylvania, but that his credentials had not yet arrived. After 
 remarks on the public career of Mr. Grow in earlier years in the House, Mr. Holman 
 asked unanimous consent that the oath be administered to him. There being no 
 objection, it was so ordered, and Mr. Grow took the oath. 
 
 167. On January 15, 190'2,= the House, by unanimous consent, authorized 
 the Speaker to administer the oath to Mr. Montague Lessler, of New York, on the 
 following statement of fact made by Mr. Lucius N. Littauer, of New York: 
 
 Mr. Speaker, I ask unanimous consent that Mr. Montague Lessler, elected to this House at a special 
 election held in the Seventh district of New York to fill a vacancy caused by the resignation of Mr. 
 MuUer, be sworn in. The certificate of the secretary- of state of Xew York is not yet at hand, but there 
 is no contest over the result of this election. The vote has been canvassed by the board of county can- 
 vassers, and Mr. Le-ssler is now here ready to be sworn in. 
 
 168. On December 3, 1906," at the beginning of the second session of the 
 Congress, after the roll of the Members had been called by States, and when several 
 Members elected to fill vacancies had presented credentials and taken the oath, 
 Mr. James Hay, of Yirginia, said: 
 
 Mr. Speaker, I ask unanimous consent that Mr. E.W.Saunders, a Member elect from the Fifth 
 Virginia district, be sworn in. His credentials have not amved, but there is no question of his election, 
 and I have been in communication with the secretary of state of Virginia, who tells me that the canvass 
 of the votes has been made and that Mr. Saunders has been declared duly elected. 
 
 ' First session Fifty-fourth Congress, Record, p. 4846. 
 
 ^ Second session Fifty-fourth Congress, Record, p. 301. Thomas B. Reed, of Maine, Speaker. 
 ^ It is a safe usage to permit the oath to be administered under such circumstances only by unani- 
 mous consent; but manifestly in a case of such high privilege the House might act by majority vote. 
 ■•Second session Fifty-third Congress, Record, p. 2533. 
 'First session Fifty-seventh Congress, Journal, p. 223; Record, p. 692. 
 'Second session Fifty-ninth Congress, Record, p. 13. 
 .i9S4— VOL 1—07- — 7
 
 98 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 169 
 
 On this statement the House gave consent, and the oath was administered 
 to Mr. Saunders. Under similar conditions the oath was administered to Mr. 
 Daniel J. Riordan, of New York. 
 
 169. Instance -wrlierein the House authorized the Speaker to admin- 
 ister the oath to Members away from the House. — On January 6, 1890,' Mr. 
 John G. Carlisle, of Kentucky, having announced that there were three Members 
 of the House who by reason of illness had been unable to attend and take the oath 
 of office, offered the following resolutions, which were adopted : 
 
 Whereas Samuel J. Randall, a Representative for the State of Pennsylvania from the Third district 
 thereof, David Wilber, a representative for the State of New York from the Twenty-fourth district 
 thereof, and W. C. \Miitthome, a Representative for the State of Tennessee from the Seventh district 
 thereof, have been unable from sickness to appear in person to be sworn as Members of the House, and 
 there being no contest or question as to their election: Therefore, 
 
 Resolved, That the Speaker be authorized to administer the oath of office to said Samuel J. Randall 
 at his residence in Washington, D. C. ; and that the said David Wilber and W. C. Whitthome be author- 
 ized to take the oath of office before an officer authorized by law to administer oaths; and that said oaths, 
 when administered as herein authorized, shall be accepted and received by the House as the oaths of 
 office, respectively, of Samuel J. Randall, David Wilber, and W. C. Whitthome. 
 
 Resolved, That the oaths of office administered to the said David Wilber and W. C. Whitthome 
 shall be certified to the House of Representatives by the officers administering the same, authenticated 
 by their official signatures and seals. 
 
 On the following day the Speaker announced: 
 
 The Chair desires to announce that in compliance with the resolution yesterday adopted the Speaker 
 administered the oath of office at his residence to Hon. Samuel J. Randall, a Representative from the 
 State of Pennsylvania, and the Clerk will make a record in the Journal. 
 
 On January 15" the Speaker laid before the House the oaths of Messrs. Wilber 
 and Whitthome, and they were ordered to be filed in the office of the Clerk. 
 
 170. By authority of the House the oath may be administered to a 
 Member away from the House and by another than the Speaker. 
 
 As to the competency of a Speaker pro tempore to administer the oath 
 to Members. 
 
 On January 22, 1887, Mr. Nathaniel J. Hammond, of Georgia, fi'om the Com- 
 mittee on the Judiciary, submitted a report' on the case of Representative D. Wyatt 
 Aiken, of South Carolina, who, by reason of illness, seemed likely not to be able to 
 appear in the House during the Congress, and to whom it was proposed to administer 
 the oath away from the House by a judicial officer of his State. The committee 
 quoted the third section of Article VI of the Constitution, which requires that the 
 Representatives "shall be bound by oath or affirmation to support the Constitution," 
 and section 30, Revised Statutes.* 
 
 The conunittee considered two questions arising under this statute: (1) Whether 
 any officer but the Speaker can administer that oath, and (2) whether it can be 
 administered until the Member is "present" or "appears" in the House, or elsewhere 
 than in tlie House. 
 
 ' First session Fifty-first Congress, Journal, pp. 89, 103; Record, pp. 399, 432. 
 ^Journal, p. 124. 
 
 =* House Report No. 3745, second session Forty-ninth Congress. (Record, p. 1157.) 
 * See section 14, this volume.
 
 § 170 THE OATH. 99 
 
 The committee say that a construction which might require that none but the 
 Speaker can swear in a Member might prove seriously inconvenient ia case of liis 
 absence. It is a rule of the House onlj- which authorizes him temporarily to appoint 
 a Speaker pro tempore to the chair. Such a construction would give to the Speaker 
 the dangerous power to refuse to administer the oath and thereby exclude Members 
 from the House. No such constraction should be allowed. The committee here 
 quote an English precedent where, out of abundant caution, such act by a deputy 
 speaker was ratified by action of Parliament subsequently. 
 
 In regard to the second inquirj* the committee cite the case of Wilham Rufus 
 Kin g, elected Vice-President in 185.5, and who, being detained in Habana, was 
 allowed by special act to take the oath there. This was a precedent merely for 
 swearing in a ilember away from the House. The statute was needed to authorize 
 the officer abroad to administer the oath. 
 
 The committee say that no provision has been made by statute for administering 
 this oath by any but the Speaker, nor elsewhere than in the House. As to absent 
 Members it is casus omissus. It does not require the oath to make one a Represent- 
 ative. Mr. Aiken was already on conmiittees and had been granted leave of absence. 
 The statutes' require that the Speaker certify the salaries and accounts of Members 
 and approve the employment of the reporters. Yet these things may be done by a 
 "Deputy Speaker" named by him, with the approval of the House. That Deputy 
 Speaker '^ swears in Members also, not by statute, but only by our rule, wliich author- 
 izes him to "perform the duties of the Chair." 
 
 The Constitution provides that when sitting to try impeachments Senators 
 "shall be under oath or affirmation." No statute prescribmg the form and method 
 of taking the oath, the Senate has determined it itself. The question of how the 
 oath of office in each House shall be taken is so near akin to the "election returns and 
 qualifications of its o\vn Members" and so like one of the "rules of its own proceed- 
 ing," wliich constitutionally belong to "each House" to "judge" and "determine" 
 for itself, that in the opinion of the committee no statute was necessaiy. The com- 
 mittee concluded by recommending the adoption of a resolution as follows: 
 
 Whereas D. Wyatt Aiken, Representative for the State of South Carolina from the Third district 
 thereof, has been and in all probability will remain until the end of this Congress unable from sickness 
 to appear in person to be sworn as a Member of this House, but has sworn to and subscribed the oath of 
 office before an officer authorized by law to administer oaths, and the said oath of office has been presented 
 in his behalf to the House, ^ and there being no contest or question as to his election: Therefore, 
 
 Resolved, That the said oath be accepted and received by the House as the oath of office of the 
 said D. Wyatt Aiken as a Member of this House. 
 
 This resolution, after debate, was adopted by the House January 29, 1887.* 
 
 ' Sections 47 and 54, Revised Statutes. 
 
 ^On June 15, 1898 (second session Fifty-fifth Congress), Mr. John Dalzell, of Pennsylvania, by 
 designation of the Speaker, in writing, acting as Speaker pro tempore, administered the oath to Mr. 
 Greene, of Massachusetts. 
 
 ^ The oath had been presented in the House on January 10 as a question of privilege (Journal, p. 200; 
 Record, p. 493), the case of Mr. Haskell, of Kansas, being cited as a precedent. 
 
 * Second session Forty-ninth Congress, Record, pp. 1156-1158.
 
 100 PEECEDENTS OF THE HOUSE OF BEPRESENTATIVES. § 171 
 
 171. An adjournment taking place after the election of a Speaker, but 
 before the Members had taken the oath, the Journal was read on the next 
 day, but was not approved until the oath had been administered. 
 
 It has been held that the a,dministration of the oath to a Member takes 
 precedence of a motion to amend the Journal. 
 
 On December 22, 1849/ after many ballotings, ^Ir. Howell Cobb, of Georgia, 
 was elected Speaker. After the oath had been administered to him the House 
 adjourned. 
 
 On the next legislative day, December 24, the Speaker called the House to order, 
 and the Journal of the preceding legislative day was read. 
 
 ilr. David S. Kaufman, of Texas, claimed the floor on a privileged question — a 
 motion to amend the Journal. 
 
 The Speaker held that no question was in order until the Members of the House 
 had been sworn in. A motion to amend the Journal or any other privileged ques- 
 tion would then be in order. 
 
 The Speaker then proceeded to administer the oath to the Members. 
 
 172. Members have been sworn in before the reading of the Journal. — 
 From the Journal of December 14, 1S40,- it seems to have been the usage at that 
 time to swear in new Members before the reading of the Journal. 
 
 173. Instance wherein, at the organization of the House, the oath 
 was administered to a Member-elect during the call of the roll on a motion 
 to agree to rules. — On December 4. 1005," at the organization of the House, the 
 yeas and nays were ordered on a motion for the previous question on a resolution 
 agreeing to rules. After the roll had been called once, Mr. Albert S. Burleson, of 
 Texas, presented himself and took the oath. The roll call was then completed, Mr. 
 Burleson voting. 
 
 174. Members have been sworn in when a roll call had just disclosed 
 the absence of a quoi"um. — On ^larch 29, 1897,^ on a motion that the Journal 
 be approved, the Speaker^ announced the result of the roll call — yeas 164, nays 2, 
 present 2, a total of 168; not a quorum. The Speaker then announced that imder 
 the rule" the doors of the House would be closed preparatory to the call of the 
 House. 
 
 At this point Mr. James D. Richardson, of Tennessee, announced that Messrs. 
 Rudolph Kleberg, of Texas, and William A. Jones, of Virginia, were present, ready 
 to take the oath, and asked that it be administered to them. 
 
 The Speaker said that a question arose as to whether or not, the body not being 
 constituted to do business and the roll call having been ordered by the rule of the 
 House, the proceedings might be interrupted. Therefore he advised that unani- 
 mous consent should be obtained. 
 
 This having been done, the oath was administered to the two Members. 
 
 ' First session Thirty-first Congress, Globe, p. 67. 
 
 - Second session Twenty-sixth Congress, Journal, p. 31. 
 
 ^ First session Fifty-ninth Congress, Record, p. 43. 
 
 ■• First session Fifty-fifth Congress, Record, p. 428. 
 
 5 Thomas B. Reed, of Maine, Speaker. 
 
 * Section 4 of Rule XV. (See sec. 3041 of this work.) 
 
 I
 
 § 175 THE OATH. 101 
 
 175. At the beginning of a second session of Congress unsworn Mem- 
 bers-elect were taken into account in ascertaining the presence of a quo- 
 rum, but in the absence of the Speaker they were not sworn until the next 
 day. — On December 6. 1S30.' at the beginning of the second session of the Con- 
 gress, there appeared, besides those who answered the roll, several new Members. 
 These Members-elect, as appears in the Journal, were taken into account in ascer- 
 taining the presence of a quorum, but the Speaker being absent, the oath was not 
 administered to them. 
 
 On December 7, the Speaker being in attendance, the oath was administered to 
 these and other new Members immediate]}- after the reading of the Journal. 
 
 176. Instance at the beginning of a second session wherein the oath 
 was administered to a Member-elect before the ascertainment of a 
 quorum. 
 
 By unanimous consent the oath may be administered to Members- 
 elect whose regular certificates have not arrived. 
 
 On December 7, 1903,- at the beginning of the second session of the Congress, 
 the Speaker called the House to order, and the Chaplain offered praj-er. 
 
 Thereupon ]Mr. John H. Stephens, of Texas, announced that Mr. J. M. Pinckney, 
 of Texas, a Member-elect, was present and desired to be sworn. The Speaker 
 thereupon laid before the House the following telegram: 
 
 ArsTiK, Tex., December 6, 1903. 
 Hon. Joseph G. Cannon, 
 
 Speaker Bouse of Representatives, Washington, D. C: 
 I am reliably inionned that at a special election held in the Eighth Congressional district of Texas 
 on the 17th of November last Hon. J. M. Pinckney was elected as Member of Congress to succeed Hon. 
 Thomas Ball, resigned. I am also advised that Pinckney's election is conceded by his opponents. 
 Under our laws, the official returns can not be opened and counted until forty days after the election. 
 
 S. W. T. Lanham, Governor of Texas. 
 
 Thereupon, by the imanimous consent of the House, the oath was administered 
 to ilr. Pinckney. 
 
 Then the Speaker (Urected the call of the roll by States to ascertain the 
 presence of a cjuonun 
 
 177. On December 31, 1834,^ as soon as the roll of Members had been called 
 by States, several new Members appeared and were qualified and took their seats. 
 Then the Journal announces the presence of a quorum. 
 
 178. On December 7, 1840,^ the first day of the second session of the Con- 
 gress, the Speaker called the House to order, and the Clerk called the roll by States. 
 Then six new Members appeared and took the oath and their seats ; but even mth 
 these there was no quorum present, and so the House adjourned. 
 
 179. In the absence of the Speaker a Member-elect has produced his 
 credentials and taken his seat, but was not sworn until the oath could be 
 administered by the Speaker. 
 
 ' Second session, Twenty-first Congress, Journal, p. 7; Debates, p. 350. 
 ^Second session Fifty-eighth Congress, Record, pp. 15, 16. 
 'Second session Twenty-third Congress, Journal, p. 7; Debates, p. 751. 
 Second session Twenty-sixth Congress, Journal, p. 5; Globe, p. 1. 
 
 LIBRARY 
 
 UNIVERSITY OF CALIFORNIA 
 
 RIVERSIDE
 
 102 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 180 
 
 In the earliei' years of the House the absence of the Speaker caused 
 adjournment and the postponement of the orders of the day. 
 
 On December 1, 1797/ the Speaker being absent, a new Member, Joseph He ister, 
 returned to serve in the House as a Member from the State of Pennsylvania, in the 
 room of George Egge, who had resigned his seat, "appeared, produced his credentials, 
 and took his seat in the House." 
 
 The Speaker being indisposed (the Clerk so informed the House), the orders 
 of the day were postponed and the House adjourned. 
 
 On the next legislative day, December 4, the oath was administered to Mr. 
 Heister by the Speaker. 
 
 On February 22, 1798,^ the Speaker being absent, the orders of the day were 
 postponed and the House adjourned. 
 
 180. It was held in 1881 that the administration of the oath to Dele- 
 gates was of higher privilege than the adoption of rules. — On December 5, 
 1881,^ after the Members-elect had been sworn in, and after the officers of the House 
 had been elected, but before the oath had been administered to the Delegates, Mr. 
 Dudley C. Haskell, of Kansas, presented resolutions providing for the adoption 
 of rules. 
 
 The House having adjourned pending action on thcso resolutions, Mr. Haskell, 
 on December 6, called them up for consideration. 
 
 Mr. Samuel J. Randall, of Pennsylvania, made the point of order that under the 
 law other business of higher privilege, viz, the swearing in of the Delegates, as 
 provided by section 30 of the Revised Statutes, which provided for the administra- 
 tion of the oath, as follows: 
 
 At the first session of Congress after every general election of Representatives, the oath of office shall 
 be administered by any Member of the House of Representatives to the Speaker, and by the Speaker to 
 all the Members and Delegates present, and to the Clerk, previous to entering on any other business, and 
 to the Members and Delegates who afterward appear, previous to their taking their seats. 
 
 The Speaker * sustained the point of order, and directed the Clerk to call the 
 
 Delegates to be sworn. 
 
 181. The presiding oflScer of the Senate being present, the oath of 
 office was administered to Senators-elect, although no quorum was pres- 
 ent. — On December 6, 1804,' the second day of the second session of the Congress, 
 a quorum did not appear, but the President of the Senate administered the oath to 
 Messrs. William B. Giles and Andrew Moore, of Virginia, who appeared with cre- 
 dentials showing their appointment by the governor of the State to fill vacancies. 
 
 182. On December G, 1802,'' in the absence of the Vice-President, a Member- 
 elect appearing in the Senate with credentials, but there being no quorum, took 
 his seat, but was not sworn until December 14, after a quorum had appeared and 
 a President pro tempore had been elected. 
 
 1 Second session Fifth Congress, Journal, p. 95 (Gales & Seaton ed.); Annals, p. 670. 
 
 2 Journal, p. 191; Annals, p. 1062. 
 
 ^ First session Forty-seventh Congress, Journal, pp. 16, 18; Record, p. 33. 
 ■"J. Yv'arren Keifer, of Ohio, Speaker. 
 
 * Second session Eighth Congress, Senate Journal, p. 411. Aaron Burr, Vice-President and President 
 of the Senate. 
 
 "Second session Seventh Congress, Senate Journal, pp. 241, 243.
 
 § 183 THE OATH. 103 
 
 183. Discussion of the status of a Member-elect who has not taken 
 the oath, -w^ith a conclusion that it is distinguished from that of a Member 
 who has qualified. — Oa June 13. 1801, Mr. Henry L. Dawes, of Massachusetts, 
 from the Committee on Elections, made a report ' relating to the rights of Messrs. 
 Robert C. Schenck, of Ohio, and Frank P. Blair, jr., of Missouri, to seats in the 
 House. In the course of this report the follo^\^ng discussion was given of the status 
 of a ilember-elect : 
 
 No one can be a "Member" against his will. He may be elected without his consent or knowledge, 
 for he may be in a foreign land; but to become a "Member "he must not only be elected but he must take 
 the oath of office. The Constitution says: "Each House shall be the judge of the elections, returns, and 
 qualifications of its own Members" — that is, of those who have qualified and taken their seats. Again: ' ' A 
 majority of each shall constitute a quorum, but a smaller number may adjourn from day to day, and may 
 be authorized to compel the attendance of absent Members." But the attendance of a Representative- 
 elect was never yet compelled. .\nd, again: "Each House maydetermine the rules of its proceedings, 
 punish its Members for disorderly behavior, and, with the concurrence of two-thirds, expel a Member." 
 The committee are not aware of any attempt to punish a Representative-elect, and of but one instance of 
 an attempt to expel one. A. resolution was adopted by the last House, under the previous question, 
 to expel a person who was a Representative-elect, but had never signified his acceptance of the ofBce or 
 qualified, or even appeared in Washington for the purpose of taking his seat. But when the Constitution 
 uses the word "Representative," it is in this connection: "The times, places, and manner of holding 
 elections of Senators and Representatives shall be," etc. "No person shall be a Representative who shall 
 not have attained to the age of 25 years." In the clause now under consideration the language is: "No 
 person holding any office under the United States shall be a Member of either House during his contin- 
 uance in office." No one doubts that the object of the Constitutional inhibition was to guard the House 
 against Executive influence. This object is attained so far as it can be by this provision, if the inhibition 
 attaches the moment the ember Menters upon the discharge of his d\ities as such, and nothing is gained 
 by an earlier application of it. 
 
 184. Discussion of the status of a Member-elect in relation to the law 
 prohibiting the holding of two offices of certain salaries, with the conclu- 
 sion that it is distinguished from the status of the Member who has qual- 
 ified. — On July 19, 1866,^ Mr. Samuel Shellabarger, of Ohio, made a report from 
 the select committee appointed April .30, 1866, to investigate certain statements 
 and charges relating to Hon. Roscoe Conkling and Provost-Marshal-General Fry. 
 In April, 1865, Mr. Conkling had accepted an appointment from the War Department 
 to investigate frauds in the office of the provost-marshal for the western district of 
 New York. He was at the same time a Member-elect of the Hotise of Representa/- 
 tives. The special committee consisted of Messrs. Shellabarger, of Ohio, William 
 Windom, of Minnesota, B. M. Boyer, of Pennsylvania, Burton C. Cook, of Illinois, 
 and Samuel L. Warner, of Connecticut, and they made an unanimous report, in 
 which they foimd, among other things, that Mr. Conkling had not violated the 
 law or the Constitution by accepting the appointment. 
 
 The act of 1852 ^ had provided against the holding of two offices of certain sala- 
 ries under the United States; and in the course of their inquiry the committee 
 considered the status of the Member-elect, as follows : 
 
 ' House Report No. 110, First session Thirtj'-eighth Congress, pp. 8, 9. 
 - First session Thirty-ninth Congress, Globe, pp. 3935-3942. 
 ^Now section 1763, Revised Statutes.
 
 104 PKECEDENTS OF THE HOUSE OF REPRESENTATIVES. §1^4 
 
 The first of these inquiries is, in the judgment of the committee, answered, so far as is necessary 
 in deciding upon the effect of the act of 1852, by the cases of Hammond, of Earl, of Mumford, of Schenck," 
 and others, which we have already cited. These cases, as we have seen, all determine that, prior to 
 the time when the Constitution requires the Memlser-elect to commence the duties of his legislative 
 office, and before he has assumed these duties and taken the oath of office, he may receive compensation 
 for discharging the duties of another office. As we have already said, these cases do not determine 
 that he may also be compensated as a Member of Congress for the same time for which he was compen- 
 sated in the other office. But they do determine that being a Member-elect of Congress does not make 
 him an "officer" in such sense as to bring him within the prohibition of the act of 1852. This question, 
 in substance, received the careful attention of the House in the Thirty-eighth Congress upon an able 
 report of one of its committees.- The conamittee and House came to what your committee deem a 
 just conclusion when it determined that one merely elected to Congress, but who had not entered 
 upon his duties nor been qualified, was not a Member of this House — that is, did not hold an ofTicc so 
 as to prevent him from continuing to hold another office and receive compensation therefor. The 
 committee, in concluding their argument showing that one merely elected to Congress was not a Memlter 
 of the House and not, as such, amenable to its jurisdiction, says: "The committee are not aware of 
 any attempt to punish a Representative-elect, and of but one instance of an attempt to expel one. A 
 resolution was adopted by the last House, under the previous question, to expel a person who was a 
 Representative-elect, but had never signified his acceptance of the office, nor qualified, nor even 
 appeared in Washington for the purpose of taking his seat." 
 
 In that case - the House determined, in effect, that the act of 1852 did not prohibit General Schenck 
 while a Member-elect of Congress from receiving the pay of another office — to wit, that of major-general 
 of volunteers. 
 
 This is the last case in which the question came before the House. But the same question received 
 in the Fifteenth Congress, in the case of Hammond v. Herrick (Clark and Hall, Contested Elections, 
 pp. 293, 294), a still more elaborate and exhaustive consideration. In the report in that case (which 
 also received the sanction of the House) this doctrine was explicitly stated, and was affirmed after a 
 thorough review of the English and American cases touching it. The case held the rule which was 
 stated by the committee in these words: "Neither do election and return constitute membership. 
 * * * Our rule in this particular is different from that of the House of Commons. It is also better, 
 for it makes our theory conform to what is fact in both countries — that the act of becoming in realil y a 
 Member of the House depends wholly upon the person elected and returned. Election does nol of 
 itself constitute membership, although the period may have arrived at which the Congressional term 
 commences." 
 
 This House has again and again determined that men elected to it who do not appear in the body and 
 assume the constitutional oath of office are not to be reckoned as Members of the House in determining 
 the number required to make a majority or quorum of the body. 
 
 The committee in coming to this conclusion have not overlooked the fact that Members-elect, but 
 not qualified, are by the laws accorded certain privileges and salary. The effect of this right to enjoy these 
 privileges before becoming qualified as a member of the legislative body has received the fullest attenl ion 
 both in this House and in the English Parliament. The result attained is that these special privileges 
 are not necessarily indicia of actual official authority or station, and may by law as well be attached to 
 one's person before and after he is an officer as during his official tenure. The Representatives after the 
 expiration of their terms, the President of the United States after such expiration, and the widows of 
 certain ex-Presidents, all have the franking privilege, and these are not then officers of the Government 
 in any sense. The assumption of office in this country, as well as its relinquishment, is voluntaiy, and 
 one elected to Congress is at perfect liberty to refuse to assume the office. His exercise of the franking 
 privilege with the knowledge that he never would enter upon the duties of the office would be an act of 
 bad faith toward his Government: but that would not render him a Member of Congress, nor would the 
 exercise prevent him, should failure of health or other cause render it improper to enter upon his office, 
 from rightly refusing ever to take the office. 
 
 Other and perhaps more conclusive considerations bearing upon this important inquiry might be 
 
 ' Report No. 110, first session Thirty-eighth Congress. 
 
 - House Report, No. 110, first session Thirty-eighth Congress.
 
 § 185 THE OATH. 105 
 
 given, but it is not deemed best to pursue it further. The committee are entirely satisfied that the law 
 of this House is fully and rightly settled as to this point, and that he is not a Member of Congress, nor one 
 who "holds any office under the Government of the United Stares" who has only been elected to this 
 House, but who has never taken any oath of office nor entered upon the duties of that position. 
 
 185. In 1901, in a divided report, the Judiciary Committee discussed 
 the status of the Member-elect, the major opinion being that he was as 
 much an officer of the Government before taking the oath as afterwards. — 
 On Februan" 4, 1901,' ^Ir. George W. Ray, of Xew York, from the Judiciary- 
 Committee, submitted a report on a question relating to the salary of Hon. William 
 Richardson, who had been elected to represent the district formerly represented by 
 Hon. Joseph Wheeler. The discussion of this question involved an examination of 
 the status of a Member-elect. 
 
 Does a person duly elected Representative in Congress hold an office prior to the meeting of Congress 
 at the time fixed by the Constitution, or pursuant to a special call by the President and before taking the 
 oath required by the Constitution? 
 
 It has been strenuously urged that a person so duly elected does not hold any office until Congress 
 assembles and the oath is taken. With this contention we can not agree. Article I of the Constitution 
 provides: 
 
 " Sectign 1. -Vll legislative powers herein granted shall be vested in a Congress of the United States, 
 which shall consist of a Senate and House of Representatives. 
 
 "Sec. 2. The House of Representatives shall be composed of Members chosen every second year by 
 the people of the several States, etc. * * * The House of Representatives shall choose their Speaker 
 and other officers, etc. 
 
 "Representatives and direct taxes shall be apportioned, etc. 
 
 "No person shall be a Representative who shall not have attained, etc. 
 
 "Sec. 4. The time, places, and manner of holding elections for Senators and Representatives shall 
 be prescribed in each State by the legislature thereof, etc. 
 
 "Sec. 6. The Senators and Representatives shall receive a compensation for their services to be 
 ascertained by law, etc. * * * 
 
 "No Senator or Representative shall during the time for which he was elected be appointed, etc. 
 * * * And no person holding any office under the United States shall be a Member of either House 
 during his continuance in office." 
 
 The Constitution frequently speaks of "each House." Article VI provides: 
 
 "The Senators and Representatives before mentioned, and the members of the several State legisla- 
 tures, and all executive and judicial officers, both of the United States and of the several States, shall be 
 bound by oath or affirmation to support this Constitution, etc." 
 
 The Constitution does not prescribe the time when or the officer before whom such oath is to be 
 taken. Taking the oath is not made a condition precedent to holding the office. 
 
 But section 1, chapter 1, of the first act or statute of the First Congress, wliich assembled at the city of 
 New York March 4, 1789, prescribed the form of the oath to be taken pursuant to the Constitution, and 
 section 2 of such act provided as follows: 
 
 "That at the first session of Congress after every general election of Representatives the oath or affir- 
 mation aforesaid shall be administered by any one Member of the House of Representatives to the 
 Speaker, and by him to all the Members present, and to the Clerk, previous to entering on any other 
 business, and to the Members who shall afterwards appear pre\'ious to taking their seats, etc." 
 
 Section 2 of Article I says: 
 
 "Each House may determine the rules of it? proceedings, etc." 
 
 If we note carefully the language of this act of the First Congress, it is apparent that it was not con- 
 sidered that the oath was a prerequisite to becoming ' a Member," for it says — 
 "the oath or affirmation aforesaid shall be administered by any one Member of the House of Representa- 
 
 ' Second session Fifty-sixth Congress, House Report No. 26.56, pp. 10-13, 17, 27-29, 42-.50.
 
 106 PRECEDENTS OF THE HOUSE OF KEPEESENTATIVES. § 185 
 
 tives to the Speaker, and by him to all the Members present , and t o the Clerk , previous to entering on any 
 other business, and to the Members who shall afterwards appear previous to taking their seats." 
 
 All duly elected are "Members" before taking the oath,- but they can not take their seats until the 
 required oath is taken. 
 
 Then is it not true that all Representatives elected become "Members" from the very hour and 
 minute of the commencement of the term for which elected? 
 
 The commencement of the term for which Representatives are elected was fixed and determined as 
 follows: 
 
 After the adoption of the Constitution by the requisite number of States the Continental Congress 
 adopted the following resolution on the 13th day of September, 1788:' 
 
 "Resolved, That the first Wednesday in January next be the day for appointing electors in the several 
 States which before the said day shall have ratified the said Constitution; that the first Wednesday in 
 February next be the day for the electors to assemble in their respective States and vote for President, 
 and that the first Wednesday in March next be the time and the present seat of Congress the place for 
 commencing proceedings under the said Constitution." 
 
 The several States elected Representatives in Congress for the First Congress, and it assembled 
 March 4, 1789, the first Wednesday of that month, pursuant to the above resolution. By the Constitu- 
 tion Representatives are chosen every second year, thus fixing the terms of office. 
 
 In the various acts, or some of them, providing for the apportionment and election of Representa- 
 tives in Congress future Congresses have been referred to as commencing on the 4th day of March. - 
 
 It seems clear that taking the oath is not a condition precedent to becoming a Member, although the 
 Member can not take his seat in the House until the oath is taken. This is a rule of action prescribed 
 by the House. 
 
 "Membei's" organize the House; "Members" elect the Speaker, and this is a most important func- 
 tion. Any Representative before taking the oath may administer the oath to the Speaker, and the 
 Speaker administers the oath to whom? Representatives-elect? No; but to "Members." "The 
 House of Representatives shall choose their Speaker." The House exists before a Speaker is chosen or 
 the oath taken. 
 
 After quoting Blackstone to the effect that an office is "a right to exercise a 
 public or private emplojmient and to take the fees and emoluments thereunto 
 belonging," and other authorities,' in the same line, the report cites authority Mn 
 support of the statement that there is nothing in the Constitution or in the statutes 
 that makes the taking of the oath a condition precedent to taking and holding the 
 office of Representative in Congress when elected by the people for a definite term 
 fixed b}^ law. Even when a statute fixes the time and it is not complied with, the 
 person elected or appointed is in and vested with the office when the term commences 
 unless it is declined. 
 
 The report further contends : 
 
 The word "Member-elect" was never used in any of the statutes until 1873 (as we can find) and 
 was not intended to overthrow the Constitution, which provides that Members are elected by the 
 people, not made such by taking an oath, but was used simply to distinguish between Members who 
 had become entitled to a seat by taking the oath and those not entitled to sit in the House after its 
 organization. * * * 
 
 We should also call attention to the fact that we always have a Congress — always have a Senate; 
 always have a House of Representatives and Members of the House of Representatives. 
 
 ' See Journal of Continental Congress. 
 
 - Revised Statutes, sec. 25. 
 
 'Blackstone's Commentaries, Book 2, chapter 3, p. 36; Kent's Commentaries, p. 454; United 
 States V. Hartwell, 6 Wall., 385-393. 
 
 ■•Mechem's Public Ofiices, sec. 247; Throop, Public Ofiices, sees. 3 and 173; Clark v. Stanley, 66 
 N. C, 59.
 
 § 185 THE OATH. 107 
 
 The House may not be organized, but it exists, nevertheless. Section 2, Constitution United States, 
 says: "The House of Representatives shall choose their Speaker." The Representatives in Congress 
 or Members of the House may not have taken the oath of office, but they are elected, and each comes 
 into office, if eligible, the very moment the term of his predecessor ceases. 
 
 ilr. D. H. Smith, who filed individual views, held the same opinion, saying: 
 
 When it is remembered that the Clerk of the House usually makes up the roll of the House between 
 the election and the 4th of March following, the word "Representative-elect" used in section 31 of the 
 Revised Statutes is perhaps as aptly used as any that could have been selected and not necessarily in 
 conflict with the above definition. Likewise when attention is called to the fact the credentials of those 
 elected at the regular time for electing Representatives are almost universally filed before the term 
 begins, while they are really and truly Members-elect, it is not astonishing that this language is found in 
 section 38, though other words less liable to confuse might have been used. But whatever influence 
 such citations might have, it is entirely safe to say the instances in which persons elected to Congress 
 are referred to after their terms have begun as Members are much more numerous than those where the 
 other expression is employed. 
 
 There are manystat utes prohibiting Members of Congress from doing things that might bedetrimental 
 to the best interests of the Government — such as those that forbid a Member from practicing before the 
 Court of Claims, from taking compensation for procuring public contracts or oflices, from being interested 
 in public contracts, and a great number of similar statutes. If it be true that prior to the convening of a 
 Congress in its first session those chosen thereto are not Members, then it is a matter of serious and mgent 
 importance that Congress address itself to the work of amending a multitude of statutes heretofore sup- 
 posed and believed to apply to a Member of Congress before he is sworn, as well as afterwards. * * « 
 But it is said that the oath of office is not taken until Congress meets, and that one can not therefore be a 
 Member before that. Without the Constitution or the statute makes the taking of the oath a prerequisite 
 to becoming a Member it may be taken at a subsequent time, and in the absence of such requirement 
 one may become a Member without it. 
 
 The First Congress of the United States met on the 4th of March, 1789, and no Member of the House 
 took the oath until April S, and no Senator took the oath until the 3d of June, although prior to either 
 date much business was transacted, including the count of the electoral vote for President and Vice- 
 President fif the United States. In that Congress was many of those who had been in the convention 
 and assisted in forming the Constitution, and while all were familiar with its provisions these no doubt 
 possessed that thorough knowledge of the instrument in detail that could only be acquired by having 
 participated in constructing it. By their official course they gave us an interpretation of that part 
 requiring an oath which was in effect that the oath could be taken after the session had begun, but the 
 statute has so far modified this as to require it to be taken at the beginning of the first session. * * * 
 Congress can not commence without Members, hence all such persons chosen to compose the Congress 
 who have not died, resigned, or declined, and who are eligible on the 4th of March succeeding their 
 election, if it be at the regular time, become Members of the Congress to which they have been elected. 
 From the commencement of the Congress to which they have been elected they are Members until they 
 in some manner vacate their positions. 
 
 Messrs. Charles E. Littlefield, of Maine, and Julius Kahn, of California, dis- 
 sented from the view taken in the report of the committee, and in the views which 
 they jointly submitted contend that until a "Member-elect" or "Representative- 
 elect" has taken the oath of office as a "Member" he is not a "Member" of the House. 
 A "Member-elect" is simply a person who, by reason of possessing the requisite 
 qualifications, having been elected therefor, is capable when the constitutional time 
 arrives of becoming a "Member." The first mention of "Member-elect" or 
 "Representative-elect" in the statutes was in section 31, Revised Statutes, and 
 then in section .38. The statutes relating to salary provided that the Member-elect 
 should draw salary mthout the oath; the Member only after the oath. For at least 
 seventy-seven years the laws in relation to compensation were such that the ilcmber-
 
 108 
 
 PRECEDENTS OF THE HOUSE OF KEPRESEISTTATIVES. 
 
 §185 
 
 elect received no salary, payments being made only to Members who had taken the 
 oath. Furthermore, the "Member-elect" had none of the attributes or privileges 
 of a "Member" except as they are specially conferred by statute. Thus the 
 Member-elect has the franking privilege; but so also does the ex-Member for a 
 certain time after the expiration of his term. The views of the two Members are 
 given further: 
 
 A "Member-elect" is in no sense within the constitutional inhibition, for asa "Member-elect" he 
 has neither power nor opportunity to do any act inconsistent vrith the duties of any other office. He 
 can not vote, except for Speaker. He can not discharge any of the duties or exercise any of the powers 
 of a "Member." He can only enjoy certain privileges specifically annexed to his status as a "Member- 
 elect" by statute. However much the elements that inhere in an inconsistent office might control 
 for good or ill the manner in which a "Member" might discharge hie duties as such, these elements can 
 have no effect upon the action of a "Member-elect," who can nc^t act at all. The inhibition is based 
 upon the idea that the inconsistent office involves considerations whose probable tendencies would be 
 to improperly affect the discharge of public duties by a Member. MTien considered in connection 
 with a "Member-elect," who has no power to discharge such duties, the reason fails. 
 
 As to the contention that the provision of section 30, Revised Statutes, shows 
 that Members are Members before they are sworn, it is urged that — 
 
 That does not follow. The election of a Speaker is but one of the steps in the organization of the 
 House. It is clear that Members-elect necessarily have the inherent power to take this step in order 
 that the House may be organized of which they may become Members. You can only predicate the 
 idea of Members upon an existing body, and to hold that you can not have an organized body unless 
 you first have members is to beg the question. The organization of a corporation created by special 
 act illustrates the idea. The act creates certain persons, called associates or corporators, a body cor- 
 porate, but this does not organize the corporation or make the corporators stockholders or members 
 thereof. It does confer upon the corporators power to organize a corporation of which they may after- 
 wards become members by becoming stockholders, but the fact that they can and do exercise the indis- 
 pensable power of organizing does not of itself make or tend to make them "members" of the body they 
 organize. The same result follows as to "Memljers-elect." 
 
 If the right of voting for Speaker demonstrates that a person is a Member, then the objection to 
 Roberts, of Utah, was not interposed early enough. No one thought of questioning his right to vote for 
 Speaker. The question in his case was solely one of exclusion or expulsion. Exclude him, and prevent 
 hira from becoming a Member. Therefore he was halted at the oath. But it is now contended that the 
 oath is not an essential prerequisite to membership for the purpose of establishing the proposition that 
 a Representative-elect becomes a "Member" on the 4th of March of a House not in existence and so 
 continues, and the formality of an oath, though required by the Constitution, is thus dispensed with, as 
 under such a construction it is not essential. Still, although they have thus reasoned the oath out, they 
 miist concede that this "Member" can not draw compensation without taking the oath, while a "Mem- 
 ber-elect" can. Such an inconsistency demonstrates the fallacy of the reasoning. Roberts, of Utah, 
 drew salary as Member-elect until November 3, 1899, exercised the franking privilege, and voted for 
 Speaker. Was he a "Member" from March 4, 1899? If so, his exclusion from the office nearly a year 
 later was hardly effective. Notwithstanding this now construction it was never suggested before that 
 he was even a Member de facto. 
 
 Moreover, on the 2Gth day of January, 1900, by a large majority, the House held that he was not 
 entitled to membership therein, and excluded him therefrom. It was expressly understood that a 
 majority was necessary to exclude, while it was conceded that two-thirds were necessary to expel a 
 "Member." Did Roberts, under this new theory of the committee, become in any legal sense, de facto, 
 de jure, or otherwise, a "Member" March 4, 1899? If so, the proceedings were had under a curious 
 misconception of the situation. If he did not then become a " Member," could he, on the theory of the 
 committee, be the "predecessor," within the meaning of section 51, of his successor? Yet his successor
 
 § -^^^ THE OATH. 109 
 
 ^elected in March 1900 and upon the proper certificate drew compensation back to Jantiary 26 
 tZ'scctL ^''^ ^"' '"'^'^ ^'' ^"'^■•'^ "^"^ ^^^'^ ^'^ "predecossor" within the leaning of 
 
 romn?r!l^.?'J ^.^ t'' ""^ ^his contention the two Members quote a decision of the 
 Comptroller of the Treasuiy ■ m the case of llr. Boatner, and of Attorney-General 
 Devens- m the case of Delegate Romero, in both of which the Member-elect was 
 aot regarded as a Member. 
 
 There was no action by the House on the report. 
 
 ■ Opinions of Comptroller of Treasury, Vol. 3, p. 20. See sec. 28 of this work 
 15 Attorneys-General Opinions, p. 280; also 14 A. G. Decisions, p. 40(i.
 
 Chapter VL* 
 
 THE OFFICERS OF THE HOUSE AND THEIR ELECTION. 
 
 1. Provisions of Constitution and rule. Sections 186, 187. 
 
 2. General procedure of election. Sections 188-203. 
 
 3. The election of Speaker, Sections 204-230.' 
 
 4. Resignation or death of Speaker. Sections 231-234.- 
 
 5. The Clerk and his election. Sections 235-245. 
 
 6. Absence of the Clerk. Sections 246-248. 
 
 7. Authority and duties of the Clerk. Sections 249-253.' 
 
 8. The Clerk custodian of the seal of the House. Sections 254-256. 
 
 9. The duties of the Sergeant-at-Arms. Sections 257-259. 
 
 10. The Doorkeeper and his duties. Sections 260-263. 
 
 11. Resignations and deaths of officers. Sections 264-268.^ 
 
 12. The Postmaster and his duties. Sections 269-271. 
 
 13. The Chaplain and his duties. Sections 272-282. 
 
 14. Defense of officers in actions. Section 283. 
 
 186. The Speaker and other ofl&cers are chosen by the House. — The 
 Constitution of the United States, in Article I, section 2, provides that "the House 
 of Representatives shall choose their Speaker and other officers." 
 
 187. The elective officers of the House, in addition to the Speaker, 
 are the Clerk, Sergeant-at-Arms, Doorkeeper, Postmaster, and Chaplain. 
 
 A rule, which, however, is not in force at the time of organization, 
 provides that all the elective officers except the Speaker shall be chosen 
 by viva voce vote. 
 
 The Speaker, who was at first chosen by ballot, has been chosen by 
 viva voce vote since 1839. 
 
 The elective officers other than the Speaker continue in office until 
 their successors are chosen and qualified. 
 
 The elective officers of the House are sworn to support the Constitu- 
 tion and discharge their duties faithfully. 
 
 * See Volume VI, Chapter CLIII. 
 
 ' Clerk preserves order during. Section 64 of this volume. As to general duties of the Speaker. 
 Chapter XLIV, sections 1307-1376 of Vol. II of this work. Contests over election of, in 1855 and 1859. 
 Sections 6647-6650 of Vol. V. 
 
 2 See also section 1356 of Vol. II. 
 
 ^ Presiding officer during organization. Chapter III, sections 64-80 of this volume. 
 
 * See also section 292 of this volume. 
 
 110
 
 § 187 THE OFFICERS OF THE HOUSE AND THEIR ELECTION. Ill 
 
 Origin of an obsolete requirement that the officers of the House shall 
 be sworn to keep its secrets. 
 
 Each of the elected officers of the House appoints the employees of 
 his department provided by law. 
 
 The attempt to establish the theory that one House might prescribe 
 rules for its successor, and the end thereof. 
 
 The House formerly provided by special rule that the Clerk should 
 continue in office until another should be appointed. 
 
 Rule II provides: 
 
 There shall be elected by a viva voce vote, at the commencement of each Congress, to continue in 
 office vmtil their successors are chosen and qualified, a Clerk, Sergeant-at-Arms, Doorkeeper,' Post- 
 master, and Chaplain, each of whom shall take an oath to support the Constitution of the United States, 
 and for the true and faithful discharge of the duties of his office to the best of his knowledge and ability, 
 and to keep the secrets of the House; and each shall appoint all of the employees of his department 
 provided for by law. 
 
 Tliis rule is the result of many changes in the relations of the House and its 
 elected officers. It is, of course, of advisory force only, as it has not been the cus- 
 tom of the House to adopt rules until it has organized by the choice of some, at 
 least, of its officers; but at the time this rule was framed into its present form — in 
 1880 — there existed and was continued another rule which provided: "These rules 
 shall be the rules of the House of Representatives of the present and succeeding 
 Congresses unless otherwise ordered."' This attempt to enable one House to 
 dictate rules to its successor was often challenged and was finally brought to an end 
 in 1890, after having continued from 1860.^ It is evident, then, that this rule as 
 to the election of officers is never in existence at the time at wliich a large portion 
 of it would be expected to apply. 
 
 The portion of the rule providing for election by viva voce vote is the embodi- 
 ment in the form of rule of the result of a long contest in the House. The first 
 Speaker was elected by ballot, and such continued to be the practice both as to the 
 Speaker and other officers for many years. As early as March 1, 1826,^ Mr. James 
 Buchanan, of Pennsylvania, proposed a rule that the Speaker be elected by viva 
 voce vote, but no action was taken. On Januarj" 16 and 17, 1829,* a proposition 
 that the officers of the House be elected by viva voce vote was debated at length, 
 and finally laid on the table by a vote of 97 to 92. And election by ballot 
 continued up to and including the election of James K. Polk as Speaker in 
 1837, although in 1835^ the proposition for viva voce election had been advanced 
 again. In 1839 ° there was a long contest over the choice of Speaker, and hj 
 determination of the House all the votes were taken viva voce, although there was 
 much opposition to the method. 
 
 ' An Assistant Doorkeeper was, in 1821, an elective officer of the House (first session Seventeenth 
 Congress, Journal, p. 49); but the office was abolished many years ago. 
 ^ See sections 6743-6745 of Vol. V of this work. 
 ' First session Nineteenth Congress, Journal, pp. 296, 30-5. 
 ■* Second session Twentieth Congress, Journal, pp. 165, 171. 
 
 'Second session Twenty-third Congress, Journal, p. 283; Debates, pp. 879, 1051, 1070 
 ° First session Twenty-sixth Congress, Journal, pp. 59-79; Globe, pp. 69-74.
 
 112 PKECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 187 
 
 The contest of 1839' left the House with this rule: "In all cases of election 
 by the House of its officers, the vote shall be taken viva voce." And this rule was 
 continued until 1880/ when the Committee on Rules, in framing the present form 
 of rule, omitted the Speaker from the list of officers who should be elected viva 
 voce. At that time Mr. J. Warren Keifer, of Ohio, proposed that the Speaker 
 should be included among the officers elected viva voce, as had been the practice for 
 forty years by the old rule ; but it seems to have been the intention that the House 
 on each occasion should determine how it would elect its Speaker. The Speakers are 
 always elected viva voce, and in recent years sometimes without even the prelim- 
 inary vote to proceed to the election of a Speaker.^ In fact, as stated above, the 
 rule is not in existence when the Speaker and other officers are usually elected, 
 and the House may determine for itself at the time what method shall be used. 
 It elects the Speaker viva voce and the other officers usually by resolution. 
 
 The portion of the rule specifying the officers who shall be elected is, like the 
 portion relating to viva voce voting, a summary of the practice of the House in 
 the past. 
 
 On April 1, 1789,* a quorum appeared for the first time in the first House of 
 Representatives, and at once the House proceeded to elect the only officer of the 
 House specifically mentioned in the Constitution — the Speaker. And next it pro- 
 ceeded "to the appointment of a Clerk." 
 
 On April 2, 1789,* the House— 
 
 Resolved, That a Doorkeeper and Assistant Doorkeeper be appointed for the service of this House. 
 
 On April 13, 1789,^ among the supplemental rules adopted was this: 
 
 The Clerk of the House shall take an oath for the true and faithful discharge of the duties of hie 
 o£&ce, to the best of his knowledge and abilities. 
 
 And on March 1, 1791,° just at the close of the First Congress, this rule was 
 agreed to: 
 
 Resolved, That the Clerk of the House of Representatives shall be deemed to continue in office 
 until another be appointed. 
 
 This rule was in existence in 1859,' but seems to have dropped out in the 
 revision of I860.' But the Clerk continues, by ancient usage, and by the implied 
 authority from the Statutes, to act until his successor is chosen." The first rule of 
 the House specifying the Clerk as an officer of the House dates from March 16, 
 1860,'° and before that it was commented on as a curious fact that there was no 
 rule, resolution, order, or law directing the appointment of a Clerk." 
 
 ' First session Twenty-sixth Congress, Journal, p. 1517. 
 ' Second session Forty-sixth Congress, Record, pp. 199, 553, 554. 
 
 'First session Fifty-first Congress, Record, p. 80; first session Fifty-fifth Congress, Record, p. 15. 
 * First session First Congress, Journal, p. 6. 
 ' First session First Congress, Journal, p. 13. 
 ' Third session First Congress, Journal, p. 396. 
 'Second session Thirty-fifth Congress, Journal, p. 629; Rule 21. 
 'Second session Thirty-sixth Congress, Journal, pp. 492, 49.3. 
 
 'Section 31 of the Revised Statutes imposes on the Clerk of the preceding House duties as to the 
 organization of the new House. 
 
 "• First session Thirty -sixth Congress, Journal, p. 528. 
 
 " Third session Twenty-seventh Congress, Journal, p. 733.
 
 § 188 IHE OFFICERS OF THE HOUSE AND THEIR ELECTION. 113 
 
 On December 23, 1811/ at the time when the war with Great Britain was com- 
 ing on and secret sessions were frequent, a rule was adopted providing that the 
 Doorkeeper and Sergeant-at-Arms should keep the secrets of the House. On Decem- 
 ber 25, 1825,^ in a Congress where there was one secret session, the Sergeant-at- 
 Arms and Doorkeeper took that oath. In the combinations of old rules made in 
 the revisions of 1860^ and 1880,* the provision requiring the oath of secrecy was 
 placed in such position as to apply to all the officers of the House; but inasmuch 
 as no secret session has been held for about seventy years, the observance of this 
 portion of the rule is naturally neglected. The portion of the rule requiring an oath 
 to support the Constitution of the United States dates from the revision of 1880. 
 
 On March 15, 1860, a rule was adopted that the appointees of the Doorkeeper 
 and Postmaster should be approved by the Speaker,^ but tliis did not continue 
 beyond the revision of 1880, having become obsolete. " 
 
 After the election of the Speaker the other elective officers are usually chosen 
 by the adoption of resolutions.^ 
 
 The Speaker is always a Member of the House; the other elective officers 
 never are. 
 
 188. The House formerly proceeded to the election of an officer on a 
 motion so to do. 
 
 Discussion as to whether or not the Clerk of the former House con- 
 tinues until his successor is elected. 
 
 On December 7, 1829,* after the Speaker had administered the oath to the 
 Members and Delegates, !Mr. William Ramsey, of Pennsylvania, offered this 
 resolution : 
 
 Resolved, That this House do now proceed to the election of a Clerk. 
 
 Mr. Richard M. Johnson, of Kentucky, moved to amend by striking out the 
 words "do now" and inserting "will, on Wednesday next, at 12 o'clock meridian." 
 
 A question at once arose as to whether or not the Clerk of the former House 
 would continue in service untU the election of his successor. There was a divergence 
 of opmion, the Speaker' informally expressing the opinion that the Clerk of the 
 preceding House would continue to act. 
 
 The House by a large majority decided the amendment in the negative, and 
 the resolution was then agreed to. 
 
 ' First session Twelfth Congress, Report No. 38. 
 ^ First session Nineteenth Congress, Journal, pp. 9, 645. 
 ' First session Thirty-sixth Congress, Journal, p. 492. 
 * Second session Forty-sixth Congress, Record, pp. 199, 554. 
 ' First session Thirty-sixth Congress, Globe, p. 1178. 
 " Second session Forty-sixth Congress, Record, p. 199. 
 ' See section 81 of this work. 
 
 'First Session Twenty-first Congress, Journal, p. 9; Debates, p. 471. 
 'Andrew Stevenson, of Virginia, Speaker. 
 5994— VOL 1—07 8
 
 114 
 
 PRECEDENTS OF THE HOUSE OF EEPRESENTAXn'ES. 
 
 §189 
 
 189. A resolution that the House proceed to the election of an officer 
 presents a question of privilege. — On April 5, 1878,^ there being a vacancj' in 
 the office of Doorkeeper, which the House had provided for temporarily by ordering 
 the Sergeant-at-Arms to perform the duties, Mr. Benjamin F. Butler, of Massachu- 
 setts, submitted as a question of privilege the following: 
 
 Resolved. That the House proceed to the election of a Doorkeeper, and that the true Union maimed 
 soldier, Brigadier James Shields, of Missouri, he chosen to that place. 
 
 Mr. Samuel S. Cox, of New York, made the point of order that the resolution 
 did not present a question of privilege. 
 The Speaker ' said : 
 
 The Chair finds himself without an example to follow in the past. In this case, therefore, the House 
 will establish a precedent for the future. In the judgment of the Chair, under the resolution adopted 
 yesterday, an oiBcer was appointed to discharge temporarily the duties of Doorkeeper. It is stated in 
 the Manual that when a proposition is submitted which related to the privileges of the House, it is the 
 duty of the Speaker to entertain it, at least to the extent of submitting the question to the House as to 
 whether or not it presents a question of privilege. The Chair now proposes, in this instance, to allow 
 the question to be determined by the House as to whether or not it presents a question of privilege. 
 
 After debate, on April 8, the House, by a vote of yeas 220, nays 4, decided that 
 the resolution presented a question of privilege.' 
 
 190. The House often proceeds to the election of its officers as a mat- 
 ter of course, without motion to that effect. — On December S, 1863,* after the 
 election of a Speaker, and after the Senate and President had been informed of the 
 organization of the House, we find the Speaker announcing that the business next in 
 order was the election of Clerk, without waiting for the order of the House to proceed 
 to the election of Clerk. The House also proceeded to the election of other officers as 
 a matter of course, and without order. 
 
 An exception is found in the vote for Chaplain, which was taken on motion made 
 and carried.^ 
 
 191. An election by resolution is not a compliance Avith the rule 
 requiring election of officers viva voce. — On January 9, 1850," while the House 
 was voting viva voce for Clerk in accordance \\-ith the rules of the House, Mr. Robert 
 C. Schenck, of Ohio, offered the following resolution, contending that the resolution 
 came within the rule: 
 
 Resolved, That ■ 
 
 be, and he is hereby, elected Clerk of this House for the present session. 
 
 Mr. Schenck proposed to move to insert in the blank the name of Solomon Foot, 
 holding that thus, when the yeas and nays were called on filling the blank, a viva 
 voce vote would be obtained. 
 
 1 Second session Forty-fifth Congress, Journal, pp. 801, 809; Record, pp. 2310, 2341. 
 
 ^Samuel J. Randall, of Pennsylvania, Speaker. 
 
 ^The point that the resolution involved besides the order to proceed to the election, also the choice 
 of a particular candidate, does not seem to have occurred to those considering the matter. The rules 
 required the election of officers viva voce, and therefore this resolution contained a change of rule. It 
 is now a principle that the presence of a nonprivileged provision destroys the privilege of a proposition. 
 In this case the House declined to elect in this way, and proceeded to a choice viva voce. 
 
 * First session Thirty-eighth Congress, Journal, pp. 14, 15, 16, etc.; Globe, pp. 11, etc. 
 
 'Journal, p, 35. 
 
 ° First session Thirty-first Congress, Journal, p. 265; Globe, p. 125.
 
 § 192 THE OFFICERS OF THE HOUSE AND THEIR ELECTION. 115 
 
 The Speaker ' decided the resolution out of order. 
 
 Mr. Schenck having appealed, the decision of the Speaker was afBrmed. 
 
 Again, on January 16, the Speaker affirmed this decision, saying - that election 
 by resolution was not a comphance with the rule requiring the election of the officers 
 of the House viva voce. It was true that they had sometimes been elected by reso- 
 lution, but he had no recollection of such an election where objection had been made. 
 
 Mr. Alexander Evans, of Maryland, having appealed, the decision of the Chair 
 was sustained, yeas 133, nays 64.^ 
 
 192. On December 6, 1S5G,* rules having been adopted and the organization 
 of the House having been perfected as far as the election of the Public Printer,' Mr. 
 Jolm A. Bingham, of Ohio, offered the following resolution: 
 
 Resolved, That Oram Follett, of Columbus, Ohio, be, and he is hereby, elected Public Printer for 
 the House of Representatives of the Thirty-fourth Congress. 
 
 Mr. Thomas L. Clingman, of Xorth Carolina, submitted as a question of order 
 that it was not competent, under the rules, to elect a Printer, except after a previous 
 nomination and upon a viva voce vote, and that the resolution was out of order. 
 
 The Speaker ° sustained the point of order. 
 
 This decision was acquiesced in by the House. 
 
 193. A resolution declaring certain persons elected officers of the 
 House is at variance with the standing- rule of the House. 
 
 Instance wherein the House failed to elect a Doorkeeper and Post- 
 master, the officers of the preceding House continuing to serve. 
 
 On Januarv- 19, 1850,' the House had not elected a Doorkeeper or Postmaster, 
 and postponed the election of those officers until the first day of March, 1851. The 
 Doorkeeper and Postmaster of the former House continued to discharge the duties 
 of their positions. 
 
 On April 18, 1850,' Mr. Nathaniel S. Littlefield, of Maine, submitted the fol- 
 lo%ving resolution: 
 
 Resolved, That Robert E. Homer, of New Jersey, be, and he hereby is, declared elected Doorkeeper 
 of this House: and John M. Johnson, of Virginia, be, and he hereby is, declared duly elected Post- 
 master of this House; to hold their respective offices until others are chosen in their stead. 
 
 Mr. Homer was Doorkeeper of the preceding House and Mr. Johnson the Post- 
 master. They were acting in those offices at this session, by the acquiescence of 
 the House. 
 
 ' Howell Cobb, of Georgia, Speaker. 
 
 2 Journal, pp. 333, 334; Globe, p. 162. 
 
 'It b to be noticed that the conditions under which this ruling was made differs from the condi- 
 tions at the organization before the rules, including the rule prescribing viva voce voting, have been 
 adopted. 
 
 * First session Thirty-fourth Congress, Journal, pp. 464, 466; Globe, p. 372. 
 
 * The Public Printer is no longer an officer of the House. 
 ^ Nathaniel P. Banks, jr., of Massachusetts, Speaker. 
 
 ' First session Thirty-first Congress, Journal, p. 363. 
 ^Journal, p. 806; Globe, pp. 764, 765.
 
 116 
 
 PRECEDENTS OF THE HOLTSE OF REPRESENTATIVES. 
 
 194 
 
 The Speaker ' declared that the resolution, as a question of privilege, was out 
 of order, on the grountl that the House, on a former occasion, had so decided against 
 the opinion of the Chair when a similar proposition was submitted, and also for 
 the reason that it proposed a mode of election at variance with a standing rule of 
 the House.^ 
 
 Mr. Littlefield having appealed, the appeal was laid on the table on motion of 
 Mr. Thaddeus Stevens, of Pennsylvania. 
 
 194. The election of oflB.cers by resolution is subject to objection, but 
 is often permitted by unanimous consent. 
 
 In recent years all the oflicers have been elected before the President 
 and Senate have been informed of the organization. 
 
 At the organization of the House on December 4, 1865, after the election of 
 Speaker, but before the adoption of rules, Mr. James F. WilsoU; of Iowa, offered a 
 resolution for the election of the other officers of the House. 
 
 Mr. Samuel J. Randall, of Pennsylvania, objected on the ground that some 
 Members wanted to vote for candidates not named in the resolution. 
 
 Thereupon a motion was made to suspend the rules so as to offer the resolu- 
 tion, and this being done the resolution was agreed to. 
 
 At that time Rule 147 provided that the rules of the preceding House should 
 govern this until superseded.^ But whether this could actually be so was a disputed 
 question, and so it is doubtful whether the motion to suspend the rules applied to 
 the rules of the last House or to the long custom of the House as to its elections.* 
 
 195. On December 4, 1805,'^ the subordinate officers of the House were elected 
 by one resolution, and not by separate roll calls. So the resolution notifying the 
 Senate and the one notifying the President were not offered and agreed to until all 
 the officers had been elected. 
 
 196. On December 2, 1873," the officers of the House, except the Speaker, were 
 elected by resolution, the minority offering a substitute containing the names of 
 their nominees. The officers having been elected, a message was sent to the Senate 
 informing that body that the House had organized, and that James G. Blaine 
 had been chosen Speaker. But no reference was made to any other of the officers. 
 
 197. Although a former riile of the House required a nomination be- 
 fore voting for certain ofl&cers, yet the Speaker refrained from ruling 
 that votes might not be cast for persons not nominated. — It was a former 
 rule of the House that where others than Members of the House were eligible to 
 election as officers of the House, there should be a nomination. Mr. Speaker Cobb 
 refrained, however, from deciding that under this rule Members were prohibited 
 from voting for anyone not nominated.' 
 
 ' Howell Cobb, of Georgia, Speaker. 
 
 - The rule requiring viva voce election. See section 187 of this volume. It will be observed that 
 this ruling was made not at the beginning of the Congress, but after the House had adopted rules. 
 
 ^The theory that the rules of the preceding House controlled until the adoption of new rules pre- 
 vailed at this time, but has since been abandoned. See sections 6743-G745 of Vol. V of this work. 
 
 * First session Thirty-ninth Congress, Globe, p. 5; Journal, p. 1217, for the rule. 
 
 'First session Thirty-ninth Congress, Journal, pp. 8, 10; Globe, pp. 5, 6. 
 
 5 First session Forty-third Congress, Journal, pp. 11, 12; Record, pp. 6, 7. 
 
 ' January 3, 1850. First session Thirty-first Congress, Globe, p. 94.
 
 § 198 THE OFFICERS OF THE HOUSE AND THEIE ELECTION. 117 
 
 198. The Senate and President are informed of the presence of a quo- 
 rum and the organization of the House. 
 
 In the earlier practice the messages announcing the organization were 
 sent immediately after the election of Speaker, and did not refer to the 
 election of Clerk. 
 
 On December 7, 1790/ after the House had appointed its committee to join 
 with a Senate committee to wait on the President and inform him that a quorum 
 of the two Houses had assembled, a message was received from the Senate stating 
 that they had agreed to a resolution for the appointment of a conmiittee, jointly 
 with the committee to be appointed by the House, to wait on the President, etc. 
 The House disagreed to the resolution of the Senate. Later a message from the 
 Senate announced that they had appointed a committee to act jointly with the 
 House committee. 
 
 199. On December 1, 1845,- the House informed the Senate that a quorum 
 had assembled, and that John W. Davis had been elected Speaker, while the Clerk 
 was not elected until the following day. 
 
 200. At the organization of the Twenty-seventh Congress, in 1841,= the 
 Speaker and Clerk were elected on May 31, the first day of the session, and the 
 usual messages were sent to the Senate and to the President, informing them that 
 the House was organized and ready for business. But the election of Sergeant-at- 
 Arms, Doorkeeper, Assistant Doorkeeper (not now an elective officer). Postmaster, 
 and Chaplain were not ordered by the House until June 8, after rules had been 
 adopted and the committees appointed. The message to the Senate announcing 
 the presence of a quorum announced that John ^Vhite had been elected Speaker, 
 but did not mention the election of the Clerk. 
 
 201. On December 5, 18.53,* at the organization of the House, as soon as 
 the Speaker was elected the usual messages were sent to the Senate and President, 
 notifying them of the organization of the House. This was in accordance with the 
 practice of the early years of the House's existence. Then rules were adopted, and 
 after that a motion was made and carried to proceed to the election of a Clerk. This 
 was done viva voce. Then the Sergeant-at-Arms, Doorkeeper, and Postmaster were 
 elected together by a resolution. 
 
 202. On December 8, 18G3,' the Senate and President were informed of the 
 organization of the House before the election of a Clerk and other subordinate 
 officers of the House. 
 
 203. On December 0. 1875,* the usual resolution notifying the Senate that 
 a quorum of the House was present and had elected Hon. Michael C. Kerr, Speaker, 
 was presented by Mr. William S. Holman, of Indiana. Thereupon Mr. James A. 
 Garfield, of Ohio, proposed an amendment to include also the name of the Clerk. 
 Mr. Holman stated that such was not the usual form, but made no objection to the 
 amendment, which was agreed to. 
 
 ' Third session First Congress, Journal, p. 4. 
 
 - First session Twenty-ninth Congress. Journal, pp. 9, 13. 
 
 'First session Twenty-seventh Congress, Journal, pp. 11, 18, 19, 52. 
 
 * First session Thirty-third Congress, Journal, pp. 10-14; Globe, p. 4. 
 
 * First session Thirty-eighth Congress, Journal, p. 14; Globe, p. 10. 
 
 ° First session Forty-fourth Congress, Journal, p. 14; Record, p. 173.
 
 118 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 204 
 
 204. Although always at liberty to choose its manner of electing a 
 Speaker, the House has declined in later years to substitute balloting for 
 viva voce choice. — On May 31, 1841/ at the first day of the first session of 
 the Congress the roll of Members-elect was called by the Clerk of the last House, and 
 the presence of a quorum ascertained. 
 
 Thereupon, Mr. Hiram P. Hunt, of New York, moved this resolution: 
 
 Resolved, That the Members will now proceed to the organization of the House by the election of a 
 Speaker, viva voce. 
 
 A motion was made by Mr. Lewis Williams, of North Carolina, that the words 
 "viva voce" be stricken out and that the words "by ballot" be inserted. 
 
 The question on the amendment being taken by yeas and nays, there were 66 
 yeas and 154 nays. So the amendment was disagreed to. 
 
 Mr. Henry A. Wise, of Virginia, then moved to amend the resolution by adding 
 thereto the following: 
 
 And after the Speaker shall have sworn the Members they will proceed to the election of a Clerk in 
 like manner. 
 
 This motion was disagreed to, and then the original resolution was agreed to.^ 
 
 205. On December 4, 1843," at the organization of the House, the Clerk 
 (Matthew St. Clair Clarke) called the roll and announced the presence of a quorum. 
 Thereupon he reminded the House that, as no rules had been adopted, there was no 
 form prescribed for the election of the Speaker. 
 
 Thereupon, a motion was made and carried that the House do proceed to the 
 election of a Speaker viva voce. 
 
 The rule at that time (i. e., the code of rules adopted by the House in this and 
 several preceding Congresses) , provided that all elections of officers of the House 
 should be viva voce. The rule at present does not include the Speaker among those 
 to be elected viva voce. 
 
 206. The Thirty-first Congress assembled on December 3, 1849,* but the 
 House was unable to elect a Speaker until December 23. While this voting 
 was going on a motion was generally made at the beginning of each legislative day 
 that the House proceed viva voce to elect a Speaker. Then the votings would 
 proceed as a matter of course through the day. As time went on motions were 
 offered and entertained proposing election by ballot, by lot, and by resolution. 
 These were not adopted, and the House would resume the viva voce voting by 
 motion made and carried, or as a matter of course. Rules had not been adopted 
 at this time, and consequently the rule providing for viva voce election was not in 
 operation. 
 
 ' First session Twenty -seventh Congress, Journal, pp. 8, 9; Globe, pp. 2, 3. 
 
 - The rules had before this been amended to provide for the election of the Speaker by viva voce 
 vote; but as rules had not been adopted yet in this Congress there was no rule applying. The usage of 
 voting viva voce has become so strong in later years that the method has not been questioned for a long 
 time. 
 
 ^ First session Twenty-eighth Congress, Journal, p. 7; Globe, p. 3. 
 
 * First session Thirty-first Congress, Journal, pp. 2-165; Globe, pp. 1-67.
 
 § 207 THE OFFICERS OF THE HOUSE AND THEIR ELECTION. 119 
 
 207. On December 3, 1855,^ at the organization of the House, after the Clerk 
 of the preceding House had called the roll and announced the presence of a quorum, 
 Mr. George W. Jones, of Tennessee, moved that the House proceed to the election, 
 viva voce, of a Speaker for the Thirty-fourth Congress. 
 
 The question being put, the motion was agreed to. 
 
 Thereafter, on each day, the House proceeded to the voting without special 
 vote, unless propositions in regard to the organization intervened. And as soon 
 as they were disposed of the voting was resumed as a matter of course. 
 
 208. On December 19, ISoo," after sixtj'-five ineffectual attempts to elect a 
 Speaker viva voce, a motion was made that the House proceed to election by 
 ballot. Tliis motion was disagreed to — yeas 214, nays 7. 
 
 209. As late as 1837 the House maintained the old usage of electing 
 the Speaker by ballot. — On September 4, 1837,^ the roll of Members by States 
 having been called, and the presence of a quorum having been announced, it was, 
 on motion of ilr. David Petrikin, of Pennsylvania, 
 
 Resolved, That the Members present now proceed to the organization of the House by the choice 
 of a Speaker. 
 
 The House then proceeded bj' ballot to the election of a Speaker; and upon 
 an examination of the first ballot it appeared that James K. Polk, one of the Repre- 
 sentatives from the State of Tennessee, was duly elected, having received a majority 
 of all the votes given in. 
 
 210. The House and not the hold-over Clerk decides by what method 
 it shall proceed to elect a Speaker. 
 
 Why the House in a new Congress meets at 12 m. 
 
 Discussion as to whether or not the rules of one House remain the 
 rules of the next House until changed.* 
 
 On December 7, 183-5,' at the beginning of the first session of the Congress, the 
 Members-elect were called to order by the Clerk of the last House, and the roll 
 having been called, and the presence of a quorum having been ascertained and 
 announced, the Members were about to proceed by ballot to the election of a Speaker, 
 the Clerk having announced that the next business in order was the election of a 
 Speaker by ballot. 
 
 At this point !Mr. John M. Patton, of Virginia, raised a question as to the 
 authority by wliich the Clerk announced that the House would proceed by ballot 
 to the election of a Speaker. The House, if it was competent to elect, was also 
 competent to prescribe the method of election. He preferred the method of election 
 by viva voce voting They were not bound by the rules of the last House and 
 might proceed as they pleased. Mr. Samuel Beardsley, of New York, argued that 
 the House might proceed to the election by ballot or viva voce, as it might please. 
 Custom alone had sanctioned the practice that the Clerk of the House should, on 
 
 ' First session Thirty-fourth Congress, Journal, pp. 8, 18, 43, etc.; Globe, pp. 4, 6. 
 
 ^ First session Thirty-fourth Congress, Journal, p. 153; Globe, p. 53. 
 
 'First session Twenty-fifth Congress, Journal, p. 9; Globe, p. 3. 
 
 * See sections 6743-6745 of Volume V of this work. 
 
 ' First session Twenty-fourth Congress, Jotimal, p. 8; Debates, pp. 1943-1945.
 
 120 
 
 PKECEDENTS OF THE HOUSE OF EEPEESENTATIVES. 
 
 §211 
 
 the first day of the session, at 12 o'clock, call over the names of the Members; 
 and custom also had sanctioned the practice of the Clerk calling for the Members 
 to vote and putting the question for Speaker. Mr. James Parker, of New Jersey, 
 urged that the House should not depart from the old usage of fifty years and more, 
 wliich had come to have the force of common law, and in accordance with which 
 the Clerk called the House to order at 12 o'clock, and at no other hour, ascertained 
 the presence of a quorum by a call of the roll; and then the House, in accordance 
 with the same custom, proceeded to choice of a Speaker by ballot. 
 
 The Clerk read the rule of the last House providing the method of electing the 
 Speaker by ballot,^ and Mr. Abijah Mann, jr., of New York, contended that the 
 rules of the last House were the laws of the present until changed, and that the 
 Clerk did not hold his position and perform the functions at this time by mere 
 custom. 
 
 Mr. Patton moved that the Speaker be elected viva voce. 
 
 On motion of Mr. George Evans, of Maine, this motion was laid on the table. 
 
 Then, on motion of Mr. Beardsley, it was 
 
 Resolved, That the House do now proceed to the election of a Speater by ballot. 
 
 211. Procedure for electing the Speaker by viva voce vote. — On 
 December 7, 1857,- 226 Members having answered to their names, the Clerk announced 
 that a quorum was present. Then, on motion of Mr. John Smith Phelps, of Missouri, 
 it was ordered that the House do now proceed viva voce to the election of a Speaker 
 for the Thirty-fifth Congress. 
 
 The Clerk having appointed tellers, and nominations having been made, the 
 Members then proceeded to vote viva voce for Speaker.^ 
 
 212. At the organization of the House the motion to proceed to the 
 election of a Speaker is of the highest privilege. — On March 4, 1869,* at the 
 organization of the House, after the Clerk had called the roll of Members-elect and 
 announced the presence of a quonmi, Mr. George W. Woodward, of Pennsylvania, 
 submitted the following resulution: 
 
 Resolved, That the roll of Members of the Forty-first Congress be amended by the addition of tln' 
 name of Henry D. Foster, as the Representative of the Twenty-first Congressional district of Pennsyl- 
 vania, and that said Foster be called and admitted as the sitting Member prima facie entitled to represent 
 said district. 
 
 Mr. Ellihu B. Washbume, of Illinois, moved that the House proceed to the 
 election of a Speaker, claiming precedence for the motion as involving a qtiestion 
 of privilege. 
 
 Mr. John A. Logan, of Illinois, made the point of order that the law gave to the 
 Clerk the making of the roll of members to be called prior to the organization. 
 
 ' See section 187 of this work for rule for election by ballot as it existed at that time. The nil., 
 was then classified among those rules relating to the Speaker. 
 
 ^ First session Thirty-fifth Congress, Journal, p. 8, 
 
 ^ In recent years the House has often proceeded at once to election viva voce without the f.::- 
 mality of a motion. 
 
 * First session Forty-first Congress, Globe, p. 3.
 
 § 213 THE OFFICEES OF THE HOUSE AND THEIR ELECTION. 121 
 
 The Clerk' said: 
 
 The gentleman from Illinois, Mr. AVashbmne, rose to a question of privilege which has prece- 
 dence of that of the gentleman from Pennsylvania, and therefore the question before the House is on 
 the motion to proceed to the election of a Speaker. * * * The duty of the House to organize itself 
 is a duty devolved upon it by law. and any matter looking to the performance of that duty takes prece- 
 dence in all parliamentary bodies of all minor questions. 
 
 213. The motion that the House proceed to elect a Speaker is debat- 
 able unless the previous question is ordered. — On March 4, 1867," at the 
 organization of the House, the Congress having assembled in accordance with the 
 act of January 22, 1867, the Clerk had called the names of the Members-elect and 
 had announced that a quorum was present. 
 
 Thereupon Mr. James F. Wilson, of Iowa, moved that the House proceed to 
 the election of a Speaker viva voce. 
 
 Mr. James Brooks, of New York, having the floor, was proceeding to debate, 
 when Mr. John F. Famsworth, of Illinois, made the point of order that no debate 
 was in order until after the House had proceeded to the election of its officers. 
 
 The Clerk' said: 
 
 The Chair overrules the point of order, the previous question not having been called. 
 
 After further debate the previous question was moved and ordered, and under 
 the operation thereof the motion of Mr. Wilson was agreed to. 
 
 214. A resolution to proceed to the election of a Speaker presents a 
 question of privilege, and pending the decision another question of privi- 
 lege may not be presented. — On December 4. 187(5.^ iit the opening of the 
 session, 250 Members having answered to their names, the Clerk announced that a 
 quorum was present. 
 
 Mr. William S. Holman, of Indiana, submitted the following preamble and 
 resolution : 
 
 Whereas the House being informed that since its last adjournment Hon. Michael C. Kerr, who at 
 the commencement of the present Congress was elected Speaker (if the House, has departed this life, 
 creating a vacancy in the office of Speaker; Therefore, 
 
 Resolved, That the House do now proceed to the election of a Speaker viva voce. 
 
 Mr. Nathaniel P. Banks, of Massachusetts, as a question of privilege, pre- 
 sented the credentials of James B. Belford as Representative from the State of 
 Colorado, and moved that the oath of office be administered to the said Belford. 
 
 Mr. Holman demanded the previous question on the adoption of the said 
 resolution, when Mr. Banks made the point of order that the right of a Member to 
 participate in the election of a Speaker was a question of higher privilege than the 
 election of a Speaker. 
 
 This question of order was debated at considerable length, it being urged that 
 the election of Speaker was secondary to the determination of what Members 
 should be on the roll to participate in that election. The distinction was also drawn 
 between this election and one at the beginning of a Congress when, under the law, 
 
 ' Edward McPherson, of Pennsylvania, Clerk. 
 
 - First session Fortieth Congress, Globe, p. 2. 
 
 ^Second session Forty-fourth Congress, Journal, p. 8; Record, p. 5.
 
 122 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 215 
 
 the Clerk judges what names are to go onto the roll. Not only Mr. Belford was 
 waiting to be sworn in, but also Mr. Edwin Flye, of Maine, successor of Mr. James 
 G. Blaine. 
 
 The Clerk ' overruled the point of order, on the ground that the resolution sub- 
 mitted by Mr. Holman presented a question of privilege, and that pending the 
 decision of such question another question of privilege could not be submitted. 
 
 From this decision of the Clerk Mr. Banks appealed. Mr. Cox moved that the 
 appeal be laid on the table, which was done by a vote of 165 yeas to 84 nays. 
 
 215. In 1809 the House held that a Speaker should he elected by a 
 majority of all present. — On May '27, 180!),- at the urgauization of the House, 
 the ballot for Speaker showed the following result : 
 
 For Joseph B. Vamum CO 
 
 For Nathaniel Macon 3() 
 
 For Timothy Pitkin, jr 20 
 
 For Roger Nelson 1 
 
 For C. W. Goldsborough 1 
 
 Blank ballots 2 
 
 Total 120 
 
 The tellers submitting the question as to whether Mr. Vamum was elected or 
 not, Mr. Nathaniel Macon, of North Carolina, the rival candidate, expressed the 
 opinion that Mr. Vamum was elected; but Mr. John Randolph, of Virginia, opposed 
 this view strenuously, insisting that the House should elect its Speaker more 
 majorum, after the manner of their ancestors. And on motion of Mr. Randolph 
 the House proceeded to ballot again, which motion was carried — ayes 67, noes 43. 
 On the next ballot Mr. Vamum was elected by 65 votes out of 119. 
 
 On the succeeding day the Journal was found to state that a majority of the 
 votes were for Mr. Vamum, whereupon, on motion of Mr. Randolph, it was amended 
 to read: "Sixty-five votes, bemg a majority of the whole number of Members 
 present, were found in favor of Joseph B. Vamum. " The call of the roU by States 
 just preceding Mr. Vamum's election showed 126 responding. The 65 voting for 
 Mr. Vamum were a majority of this number. 
 
 216. In 1879 it was held that a Speaker might be elected by a major- 
 ity of those present, a quorum voting, a majority of all the members not 
 being required. 
 
 Discussion as to the size of a valid vote when a quorum is present. 
 On March IS, 1879,^ at the organization of the House, on the viva voce vote 
 for Speaker, the following result was announced by the tellers: 
 
 For Samuel J. Randall 144 
 
 For James A. Garfield 125 
 
 For Hendrick B . Wright 13 
 
 For William D. Kelley 1 
 
 Total 283 
 
 ' George M. Adams, of Kentucky, Clerk. 
 
 - First session Eleventh Congress, Journal, p. 5; Annals, pp. 54-66. 
 
 ' First session Forty-sixth Congress, Record, p. 5.
 
 § 217 THE OFFICERS OF THE HOUSE AND THEIR ELECTION. 123 
 
 The total membership of the House, however, imder the existing apportionment 
 was 293, and the vote for Mr. Randall fell short of a majority of that number. 
 
 Mr. Omar D. Conger, of Michigan, asked if it did not require a majority of 
 all the Members elected to the House to elect a Speaker. 
 
 The Clerk 1 replied: 
 
 It requires a majority of those voting to elect a Speaker, as it does to pass a bill. The rule requires 
 that a quorum shall vote.- That is the opinion of the Clerk. 
 
 Thereupon Mr. Randall was declared elected Speaker. 
 
 217. Tellers of the vote on the election of a Speaker are appointed 
 by the Clerk. — On December 5, 1859,'' the House having voted to proceed viva 
 voce to elect a Speaker, the Clerk appointed Mr. George S. Houston, of Alabama, 
 Thomas Convin, of Ohio, Gamett B. Adrian, of New Jersey, and George Briggs, of 
 New York, tellers. The Clerk made the appointment of these tellers without sug- 
 gestion or vote from the floor, and the Journal records the appointment. 
 
 218. The House has in one instance asked, the candidates for Speaker 
 to state their views before proceeding to election. — On January 11, 1856,* 
 before the election of a Speaker or the adoption of rules, Mr. Felix K. Zollicoffer, of 
 Tennessee, offered the following: 
 
 Resolved, That in conformity with the principles of a great popular Government, such as that of 
 the United States, it is the duty of all candidates for political position frankly and fully to state their 
 opinions upon important political questions involved in their election, and especially when they are 
 interrogated by the body of electors whose votes they are seeking. 
 
 ' George M. Adams, of Kentucky, Clerk. 
 
 ^ Since 1890 the requirement has been the quorum present, rather than the quorum voting. See 
 section 2895 of Vol. IV of this work. In the decision of the Supreme Court sustaining the ruling of Mr. 
 Speaker Reed, the court had used this language: "And here the general rule of all parliamentary bodies 
 is that when a quorum is present, the act of a majority of the quorum is the act of the body itself." On 
 January 10, 1896 (First session Fifty-fourth Congress, Record, pp. 579-581) a question arose on this feature 
 of the subject, Mr. Joseph W. Bailey, of Texas, contending that for lawful action there must be the vote 
 of a majority of a quorum. In other words, the quorum of the existing House was 179. Granted that this 
 number should be present, yet by reason of some not voting, there might be on the passage of a bill 
 yeas 76, nays 74. So a majority of those present would not vote affirmatively, and Mr. Bailey contended 
 that the bill would not be lawfully passed. 
 
 The Speaker (Mr. Reed) intervened to ask: " Does the gentleman from Texas hold that it is neces- 
 sary that 89 persons at least [the Speaker must have meant 90 instead of 89, since 90 is a majority of 
 179] should vote for every proposition that passes the House? " 
 
 Mr. Bailey contended that on a recorded vote it would be necessary. 
 
 The Speaker replied, with the concurrence of Mr. Bailey, that many bills had been passed without 
 fulfilling the requirement, and continued: 
 
 "The Chair * * * having examined the matter somewhat carefully at various times, he finds 
 that the court in making that decision perhaps decided that it was within the most extreme contention 
 of the opponents, some people having contended that it is necessary to have a majority of a quorum 
 voting. The court pointed it out in this case; but it was not necessary to discuss that question. They 
 might have decided, had they come to the plain question of the body being constituted of the persons 
 who participated in the presence of the rest of the body, they were controlled by their votes, because 
 the rest of the body, being present, could have intervened and overruled them if they had so chosen; 
 but not having chosen to do so it [they] allowed 88 [90] or any less number to pass a measure practically 
 by their assent, because declining to participate was assent." 
 
 ^ First session Thirty-sixth Congress, Journal, p. 8; Globe, p. 2. 
 
 ^ First session Thirty-fourth Congress, Journal, p. 302; Globe, pp. 213, 222.
 
 124 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 219 
 
 Although objection was made that this resolution constituted business wliich 
 the House in its disorganized condition was not competent to transact, it passed in 
 the affirmative. Later, on January 12, the candidates for Speaker answered inter- 
 rogatories in accordance with the requirements of the resolution. 
 
 219. After the election of a Speaker and before he has been conducted 
 to the chair no debate or business is in order. — On February 1, ISGO,' the 
 Clerk had announced the election of William Pennington, of New Jersey, as Speaker, 
 when Mr. Thomas C. Hindman, of Arkansas, sought recognition and began to 
 speak. 
 
 Mr. Galusha A. Grow, of Pennsylvania, made the point of order that a Speaker 
 had just been elected by the House, and that nothing could be in order until he had 
 been conducted to the chair. 
 Clerk' said: 
 
 The Clerk begs leave respectfully to suggest to the gentleman from Arkansas that this House has 
 just declared a Speaker-elect, and that the first thing in order is to conduct that Speaker to the chair. 
 The Clerk has no power further to preserve order. Until the Speaker has been conducted to the chair, 
 the House is without an organ or any person having authority to entertain motions or questions of order. 
 
 The Clerk then appointed a committee of two to conduct the Speaker-elect to 
 the chair. 
 
 220. The Clerk appoints the committee to escort the newly elected 
 Speaker to the chair. 
 
 It has long been the usage that the oldest Member in continuous serv- 
 ice shall administer the oath to the Speaker. 
 
 After a Speaker has been elected the Clerk appoints the committee to escort 
 him to the chair. On February 2, 1856,^ after Mr. Speaker Banks had finally been 
 elected after a long struggle, Mr. John Wheeler, of New York, proposed to designate 
 the committee by resohition, but desisted because of the remonstrances of Mr. 
 Joshua R. Giddings, of Ohio, who as "the oldest consecutive Member" was about 
 to administer the oath to the Speaker. Mr. Giddings said that the Clerk always 
 appointed the committee, and to arrange it otherwise would be an "innovation on 
 the whole past practice of the House." 
 
 221. The contest over the organization of the House in 1849.* 
 The House declined to determine the choice of a Speaker by lot. 
 
 The House by special rule chose a Speaker by a plurality of votes, 
 but confirmed the choice by a majority vote. 
 
 The question as to whether or not the House, before its organization, 
 may adjourn over for more than one day. 
 
 On December 22, 1849,Hhe House had been in session nineteen days'^ ^vithout 
 being able to elect a Speaker, no candidate having received a majority of the votes 
 cast. The voting was viva voce, each Member when called naming the candidate 
 
 'First session Thirty-sixth Congress, Globe, pp. 654, 655. 
 
 -James C. Allen, of Illinois, Clerk. 
 
 ^ First session Thirty-fourth Congress, Globe, p. 342. 
 
 * There had also been a prolonged contest over the organization of the House in 1840 (see sec. 103 of 
 this work), but it was not occasioned by a difficulty over the election of Speaker. 
 
 * First session Thirtj'-first Congress, Journal pp. 15G, 1G3, 164.
 
 § 221 THE OFFICERS OF THE HOUSE AND THEIR ELECTION. 125 
 
 for whom he voted. After the thirteenth ballot Mr. Andrew Johnson, of Tennes- 
 see, offered a resolution providing that if, on the next ballot, no individual should 
 receive a majority of the votes cast, the individual receiving a plurality of votes 
 should be the Speaker for the present session. An amendment was proposed, to 
 provide that the vote be taken by ballot. Both the resolution and amendment were 
 laid on the table by a vote of 210 to 11.' A resolution proposed by Mr. Frederick 
 P. Stanton, of Tennessee, to restrict the voting to the four highest candidates, and 
 in the event of no choice to the two highest, was also laid on the table. - 
 
 On December 6, after the fourteenth ballot, Mr. John A. McClernand, of Illinois, 
 offered a resolution to adopt the rules of the last House and appoint ^Ir. Linn 
 Boyd, of Kentucky', chairman until a Speaker should be elected. After an amend- 
 ment had been proposed to alternate ilr. Samuel F. Vinton, of Ohio, with Mr. 
 Boyd, and after Mr. McClernand had modified his proposition so as to permit the 
 proposed chairman merely to keep order during the proceedings on the election of 
 Speaker, the whole proposition was laid on the table by a vote of 116 to 105. 
 
 After the thirtieth ballot Mr. Lewis C. Levin, of South Carolina, offered a reso- 
 lution that each of the five parties, or factions, in the House should put the name 
 of its candidate in a box and that the Clerk should draw one therefrom, thus deter- 
 mining the Speakership by lottery. This resolution was promptly laid upon the 
 table. After the thirty-first ballot it was proposed that lots be drawn between Mr. 
 Howell Cobb and Mr. Robert C. Winthrop to determme who should be Speaker. 
 This was not approved. A motion that the vote be taken bj ballot was also defeated 
 by a vote of 162 to 62. 
 
 After the forty-first ballot ^Ir. George Ashmun, of Massachusetts, proposed a 
 plan for electing by plurality of votes, but it did not meet with favor. 
 
 On motion of ^Ir. Milo iL Dimmick, of Pennsylvania, it was ordered that the 
 House should proceed with the election of a Speaker and that there should be no 
 debate until such an election shoidd be effected. 
 
 Various solutions of the difficulty were offered as the balloting proceeded, such 
 as modifications of the plurality plan, proposals to raise a committee to devise a 
 plan for organization, to elect a Speaker pro tempore, etc. 
 
 Finally, after the fifty-ninth ballot, Mr. Frederick P. Stanton offered and the 
 House adopted, after attempts to amend and protests from the minority at the pro- 
 hibition of debate, the following resolution by a vote of 11.3 yeas to 106 nays: 
 
 Resolved, That the House will proceed immediately to the election of a Speaker, viva voce; and 
 if, after the roll shall have been called three times, no Member shall have received a majority of the 
 whole number of votes, the roll shall again be called, and the Member who shall then receive the largest 
 number of votes, provided it be a majority of a quorum, shall be declared to be chosen Speaker. 
 
 A strong protest^ was made against the plurahty resolution and against the 
 resolution proliibiting debate. Mr. Robert Toombs, of Georgia, insisted on making 
 his protest, although the Clerk began a roll call while he was on the floor, and there 
 was great disorder and confusion. He denied the right of the unorganized House 
 
 ' Journal, p. 32. - Journal, p. 34. ^ First session Thirty-first Congress, Globe, p. 62.
 
 126 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 222 
 
 to limit debate or adopt the plurality rule, basing his opposition on the second 
 section of the act of 1789— 
 
 That at the first session of Congress after every general election of Representatives, the oath or 
 affirmation aforesaid shall be administered by any one Member of the House of Representatives to the 
 Speaker, and by him to all the Members present, and to the Clerk, previous to entering on any other 
 business.' 
 
 A motion having been made to adjourn over to a day beyond the next day, 
 Mr. Alexander H. Stephens, of Georgia, arose and suggested the constitutional point 
 that the House could not, until it was organized, do otherwise than adjourn from 
 day to day. The House decided the motion to adjourn over in the negative.^ 
 
 Under the operation of the plurality, resolution, the sixty-third vote resulted as 
 follows : 
 
 For Howell Cobb 102 
 
 For Robert C. Winthrop 100 
 
 For David Wilmot 8 
 
 For Charles S. Morehead 4 
 
 For William Strong 3 
 
 For Alexander H. Stephens 1 
 
 For ■\Villiam F. Colcock 1 
 
 For Charles Durkee 1 
 
 For Emery D. Potter 1 
 
 For Linn Boyd 1 
 
 Whole number of votes given 222 
 
 Of which number, Mr. Howell Cobb, of Georgia, having received 102 votes, 
 being the largest number cast for any one Member, under the resolution adopted by 
 the House, and being a majority of a quorum of the House, Mr. Stanly thereupon 
 offered the following resolution: 
 
 Resolved, That Howell Cobb, a Representative from the State of Georgia, be declared duly elected 
 Speaker of the House of Representatives for the Thirty-first Congress. 
 
 This resolution having been adopted, Mr. Cobb was conducted to the chair by 
 Mr. Robert C. Winthrop, of Massachusetts, and Mr. James McDowell, of Virginia. 
 
 223. The contest over the organization of the House in 1855 and 
 1856. 
 
 The House by special rule chose a Speaker by plurality of votes, but 
 confirmed the choice by a majority vote on a resolution declarative of the 
 result. 
 
 ' This now section 30, Revised Statutes. (See also sec. 128 of this work.) 
 
 2 See also Section 89 of this volume. During the prolonged contest in the first session Thirty- 
 fourth Congres.s, which resulted in the election of Speaker Banks, the House voted, on December 24, 
 1855, to adjourn over. (Journal, p. 172; Globe, pp. 78, 79.) Mr. Joshua R. Giddings, of Ohio, sug- 
 gested that they had no power to adjourn over, and that a majority of the Members might come the 
 next day and elect a Speaker, notwithstanding the adjournment over; but the point was not further 
 insisted on. Mr. Alexander H. Stephens, of Georgia, who had suggested it in the Thirty-first Congress, 
 participated in the debate, but said nothing on this point. Previous to this (Journal, p. 18) the Door- 
 keeper had been directed to enforce so much of the rules of the last Congress as related to the admission 
 of persons within the hall of the House.
 
 § 222 THE OFFICERS OF THE HOUSE AND THEIR ELECTION. 127 
 
 The House declined to permit any announcement but its own declara- 
 tion in a case wherein a Speaker was chosen by plurality of votes. 
 
 Use of the motion to rescind in proceedings for organization of the 
 House. 
 
 Instance of thanks to the Clerk for presiding during a prolonged 
 contest over the organization. 
 
 On February 2, 1856/ the House was in the midst of a struggle over the election 
 of a Speaker. One himdred and twenty-nine ballots had been taken without any 
 candidate receiving the majority of the votes cast. Various devices, including 
 attempts to elect Members by means of adopting resolutions declaring such a one to 
 be Speaker, had been tried without success. On this day the proposition to elect 
 by a plm-ality of votes was revived, and Mr. Samuel A. Smith, of Tennessee, submitted 
 the following resolution, viz : 
 
 Resolved, That the House will proceed immediately to the election of a Speaker viva voce. If, after 
 the roll shall have been called three times, no Member shall have received a majority of all the votes 
 cast, the roll shall again be called, and the Member who shall then receive the largest number of votes, 
 provided it be a majority of a quorum, shall be declared duly elected Speaker of the House of Represent- 
 atives for the Thirty-foiirth Congress. 
 
 This resolution was adopted by a vote of 113 yeas and 104 nays. After its 
 adoption a motion was made^ to rescind it, and was laid on the table by a vote of 
 117 to 110. After a motion to adjourn had been voted on, the motion to rescind 
 was again made, but, the question being submitted to the House, the House decided 
 that the motion to rescind was not again in order. 
 
 After the one hundred and thirty- third vote the following result was reached : 
 
 For Nathaniel P. Banks, jr 103 
 
 For William Aiken 100 
 
 For Henry M. Fuller 6 
 
 For Lewis D. Campbell 4 
 
 For Daniel Wells, jr 1 
 
 Whole number of votes 214 
 
 Of which number Nathaniel P. Banks, jr., of Massachusetts, having received 103 
 votes, being the largest number cast for any one Member, and a majority of a quo- 
 riun of the House, was declared by the tellers to have been duly elected Speaker of 
 the House of Representatives for the Thirty-fourth Congress. 
 
 Mr. Samuel P. Benson, of Maine, taking the roll, announced the vote, concluding 
 with the declaration that Mr. Banks "is declared Speaker of the House of Repre- 
 sentatives for the Thirty-foiuth Congress."^ Immediately there was a question of 
 the right of the gentleman from Maine to make such a declaration. It was declared 
 that only the House could make such a declaration, and the precedent of 1849 was 
 recalled, when a resolution was adopted declaring Mr. Howell Cobb, of Georgia, duly 
 elected Speaker. Mr. Cobb, in reply, said that he had not believed the declaratory 
 
 ' First session Thirty-fourth Congress, Journal, pp. 429, 430, 444. 
 ' Congressional Globe, first session Thirty fourth Congress, p. 336. 
 ^ Congressional Globe, first session Thirty-fourth Congress, p. 339.
 
 128 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 223 
 
 resolution necessary in 1849 and he did not believe it necessary now. If a majority 
 of the House adopted the plurality rule, when a plurality vote was cast for a Member 
 he was elected by virtue of the resolution originally adopted by a majority of the 
 House. On the other hand, it was urged by Mr. William W. Boyd, of South Caro- 
 lina, that the majority could not empower a minority to designate a Speaker, 
 because delegated power could not be delegated. 
 
 Mr. Thomas L. Clingman, of North Carolina, submitted the following resolution: 
 
 Resolved, That, by reason of the adoption of the proposition known as the plurality resolution, and 
 the votes taken under it, the Hon. N. P. Banks, of Massachusetts, has been duly chosen Speaker, and is 
 hereby so declared. 
 
 This resolution having been agreed to by a vote of 156 j-eas to 40 nays, Mr. 
 Banks was conducted to the chair by Mr. William Aiken, of South Carolina, Mr. 
 Henry M. Fuller, of Pennsylvania, and Mr. Lewis D. Campbell, of Ohio, and addressed 
 the House. 
 
 Mr. Stanton submitted the following resolution; which was unanimously 
 agreed to, viz: 
 
 Resolved, That the thanks of this House are eminently due, and are hereby tendered, to John W. 
 Forney, esq., for the distinguished ability, fidelity, and impartiality with which he has presided over 
 the deliberations of the House of Representatives during the arduous and protracted contest for Speaker 
 which has just closed. 
 
 223. In 1860 the election of a Speaker proceeded slowly, the voting 
 being interspersed with debate which the Clerk did not prevent. — At the 
 first session of the Thirty-sixth Congress, which began on December 5, 1859, there 
 was a prolonged delay over the election of Speaker, a result being reached on Feb- 
 ruary 1, 1860, after fifty-four ballots. On the first day of the session it was ordered 
 that the House proceed viva voce to the election of a Speaker. 
 
 Thereupon a ballot was taken mthout result. Debate then began; and as the 
 Clerk declined to decide any questions of order, the voting for Speaker proceeded 
 very slowly. All questions of order were submitted to the House and were debated, 
 so it became practically impossible to hasten proceedings. Sometimes only one 
 vote would be taken during a day, the remainder of the time being consumed in 
 debate. It was urged by Mr. Israel Washbiu-n, jr., of Maine, and by others that 
 the order to proceed to the election of a Speaker was a standing order and that 
 debate and other matters were not in order.' He also contended that the House 
 should each day proceed to vote without a special order so to do each time. But 
 it was impossible to arrive at a determination of the question raised, and we find 
 the House, at the last of the proceedings, adopting, under operation of the previous 
 question, an order to proceed to the election of Speaker before each vote. Ques- 
 tions of personal privilege were raised by Members, and a resolution relating to the 
 qualifications of the candidates for Speaker ^ was presented and debated, but no 
 decision was reached on the point of order that it was not in order or on the reso- 
 
 ' Thus, on January 18 (Journal, p. 130; Globe, p. 499), the Clerk declined to carry out the order, 
 as he did not feel at lil)erty to arrest the remarks of a Member. 
 
 ' On January 5, 1860, during the contest over the election of a Speaker, a proposition to elect a 
 Speaker pro tempore was presented and discussed somewhat, but not adopted. (First session Thirty- 
 sixth Congress, Globe, pp. 341-343.)
 
 § 224 THE OFFICERS OF THE HOUSE AND THEIR ELECTION. 129 
 
 lution itself, the Clerk declining to decide and the House being unable to reach a 
 decision. A resolution for a plurality rule was proposed, but was not acted on. 
 Finally a Speaker was elected by majority vote.' 
 
 224. A new Speaker being elected at the beginning of a second ses- 
 sion of Congress, Members-elect present and unsworn participated in that 
 election. — On Xovember 13, 1820,- at the beginning of the second session of the 
 Congress, the Clerk called the House to order, and the roll of Members was called by 
 States to ascertain the presence of a quorum. 
 
 At the conclusion of the roll call several new Members appeared, produced their 
 credentials, and took their seats. 
 
 Then, a quorum being present (the new Members were not, however, necessary 
 to produce this quorum, and there is no evidence as to whether or not they were 
 counted as part of it) the Clerk laid before the House the resignation of the Speaker, 
 and the House proceeded to elect a Speaker, a choice being effected on November 15. 
 The new Speaker, Mr. John W. Taylor, of New York, having taken his seat and 
 addressed the House, and a message annoimcing his election having been sent to the 
 Senate, he proceeded to administer the oath to the new Members who appeared on 
 the 13th instant. 
 
 It seems evident, from a comparison of the Joiunal and Annals, that the new 
 unsworn Members voted for Speaker. They were 7 in number, and the Journal 
 records only 131 old members as appearing on the first day. Yet the total votes in 
 the first day's baUotings range from 132 to 138. On the second day the Journal 
 records the appearance of enough more old Members to bring the total of old Mem- 
 bers up to 142, yet during this day the total of votes reached as high as 148; and on 
 the third day, with 147 old Members recorded, the totals of ballots ranged from 141 
 to 148. If the appearance of Members was recorded with care, as it seems to have 
 been, it is evident that the imswom new Members voted for Speaker.^ 
 
 225. A Speaker elected after the organization of the House takes the 
 oath, although he may have taken it already as a Member. 
 
 Mr. Speaker Colfax, having been elected Vice-President, resigned his 
 Speakership on the last day of the Congress. 
 
 The Speaker called a Member to the chair and, taking the floor, ten- 
 dered his resignation verbally. 
 
 On March 3, 1869,* the Speaker^ called Mr. James F. Wilson, of Iowa, to the 
 chair and, having been recognized on the floor, offered his resignation as Speaker, tu 
 take effect upon the election of his successor. 
 
 • First session Thirty-sixth Congress, Journal, pp. 8, 12, 130, 151, 154, 164; Globe, pp. 187, 233, 
 483, 499, 637. 
 
 ^ Second session Sixteenth Congress, Journal, pp. 5-7 (Gales and Seaton ed.); Annals, pp. 434-438. 
 
 ^At the beginning of the Fifty-fifth Congress (March 15. 1897, first session Fifty-fifth Congress, 
 Record, p. 15) several Members present without credentials in due form, and whose names were not on 
 the Clerk's roll, asked to be allowed to vote for Speaker. The Clerk (Alexander McDowell, of Pennsyl- 
 vania) declined to permit them to do so. Had they presented credentials in due form, the situati' 'U 
 would e\'idently have been different. 
 
 ■• Third session Fortieth Congress, Journal, pp. 511-513; Globe, pp. 1867, 1868. 
 
 ' Schuyler Colfax, of Indiana, Speaker. He had been elected Vice-President, and this resignation 
 was tendered at the beginning of the laat legislative day of the Congress. 
 5994— VOL 1—07 9
 
 130 PBECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 226 
 
 A resolution expressing regret at his retirement and a high appreciation of his 
 services having been adopted by the House, Mr. Henry L. Dawes, of Massachusetts, 
 moved that Hon. Theodore M. Pomeroy, of New York, "be declared duly elected 
 Speaker in place of Hon. Schuyler Colfax, resigned, for the remaining term of this 
 Congress." 
 
 This resolution was agreed to unanimously. 
 
 A committee was appointed to escort the Speaker-elect to the chair, and the 
 Speaker pro tempore designated Mr. Dawes to administer the oath to the Speaker- 
 elect. 
 
 The Speaker-elect having addressed the House briefly, the oath was administered 
 to him. 
 
 Resolutions were then adopted directing that the Senate be informed of the 
 election and that a committee of three be appointed to inform the President. 
 
 226. On December 4, 1876,^ at the second session of the Congress, Mr. Samuel 
 J. Randall, of Pennsylvania, was elected Speaker in place of Michael C. Kerr, of 
 Indiana. The oath was administered to Mr. Randall after liis election, no question 
 being raised on the point. Of course he had already taken the oath as Member 
 at the first session. 
 
 227. When the Speaker is absent at the beginning of a session the 
 House may adjourn or elect a Speaker pro tempore. — On December fi, 1830, 
 at the opening of the second session,' the Clerk ^ called the House to order, and 
 the presence of a quonmi having been ascertained, Mr. William S. Archer, of Vir- 
 ginia, arose and announced that the Speaker * was prevented by indisposition from 
 attending. He had looked into the records and found that in such cases the 
 practice had been twofold. In some cases the House adjourned from day to 
 day; and in two other cases, occurring in 1798, the House had elected a Speaker 
 pro tempore. Then, on motion of Mr. James K. Polk, of Tennessee, the House 
 adjourned. 
 
 228. The Speaker pro tempore, whom the House had just elected, not 
 being present, the Clerk held that the motion to adjourn was not business, 
 and under the circumstances was the only motion in order. — On June 24, 
 1876,'^ the Clerk, in the absence of the Speaker " and the Speaker pro tempore, 
 called the House to order, when Mr. Samuel J. Randall, of Pennsylvania, at 12 
 o'clock and 5 minutes p. m., moved that the House adjourn. 
 
 This motion being disagreed to, Mr. William S. Holman, of Indiana, submitted 
 the following resolution; which was read, considered, and agreed to: 
 
 Resolved, That Hon. Milton Sayler, a Representative from the State of Ohio, be, and he is hereby, 
 appointed Speaker pro tempore during the present absence of the Speaker. 
 
 The Speaker pro tempore elect not being present, Mr. Holman, at 12 o'clock 
 and 25 minutes, moved that the House adjourn. 
 
 ^ Second session Forty-fourth Congress, Journal, p. 12; Record, p. 7. 
 
 ^ Second session Twenty-first Congress. Debates, pp. 347-350. 
 
 ^ Matthew St. Clair Clarke, of Pennsylvania. 
 
 ■* Andrew Stevenson, of Virginia. 
 
 ' First session Forty-fourth Congress, Journal, p. 1153; Record, p. 4132. 
 
 ' Michael C. Kerr, of Indiana.
 
 § 229 THE OFFICERS OF THE HODSE AND THEIR ELECTION. 131 
 
 Mr. Omar D. Conger, of Michigan, made the point of order that the House 
 having elected a Speaker pro tempore, the fimctions of the Clerk as a presiding 
 officer thereupon ceased, and that it was not competent for him to entertain or 
 submit any motion to the House in the nature of business. 
 
 The Clerk ' overruled the point of order, holding that a motion to adjourn was 
 not business, and in the absence of the Speaker or Speaker pro tempore was the 
 only motion in order. 
 
 In this decision of the Clerk the House acquiesced. And then the motion of 
 Mr. Holman was agreed to, and the House accordingly adjourned. 
 
 229. A Speaker pro tempore elected by the House is not sworn. 
 
 Discussion of the nature and functions of the office of Speaker pro 
 tempore. 
 
 On February- 17, 1876,- Mr. Samuel J. Randall, of Pennsylvania, offered the 
 following resolution, which was agreed to : 
 
 Resolved, That Hon. Samuel S. Cox, a Representative from the State of New York, be, and he is 
 hereby, appointed Speaker pro tempore during the present temporary' absence of the Speaker. 
 
 Mr. James A. Garfield, of Oliio, moved that the oath of office prescribed by the 
 act of July, 1862, be administered to the Speaker pro tempore before he should 
 enter upon the duties of the office to which he had just been appointed. 
 
 After debate the motion of ifr. Garfield was decided in the negative, yeas 73, 
 nays 171. 
 
 A resolution informing the Senate of the election of Mr. Cox as Speaker pro 
 tempore was then agreed to. 
 
 The motion of ^Ir. Garfield was debated at length. He urged it on the ground 
 that the act of 1862 made it incumbent on all officers except the President to take 
 the oath before entering on the duties of the office, and contended that the prece- 
 dents cited of Speakers pro tempore who had taken no additional oath were all 
 before 1862, while the case of Mr. Pomeroy, who took the additional oath, was after 
 the enactment of the test oath. On the other hand, it was stated that Mr. Pomeroy, 
 although chosen only for a day, was in fact a Speaker, since Speaker Colfax had 
 resigned. The discussion also embraced a consideration of the relations of the 
 offices of Speaker, Speaker pro tempore by election of the House, and Speaker pro 
 tempore by designation of the Chair under the rules. The idea was advanced that 
 the latter was merely a presiding officer, without the power to sign bills or do other 
 things devolving on a Speaker. As to the distinction between an elected Speaker 
 and an elected Speaker pro tempore there was a diversity of opinion. It was con- 
 tended that the Speaker pro tempore was as different from the Speaker as a Presi- 
 dent pro tempore of the Senate from Vice-President, and the idea was opposed on 
 the groimd that the House might at any time remove its Speaker and choose one pro 
 tempore, who would have all the attributes of his predecessor. It was also con- 
 tended that when the Speaker was sworn at the organization of the House he, in 
 fact, took two oaths at the same time, one as Member and the other as Speaker. 
 Hence it was argued that a Speaker elected after the organization, to fill a vacancy, 
 would take an additional oath. 
 
 ' George M. Adams, of Kentucky. 
 
 ^ First session Forty-fourth Congress, Journal, pp. 412^13; Record, pp. 1146-1153.
 
 132 PEECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 230 
 
 330. A Member being elected Speaker after the organization of the 
 House, it is assumed that his committee places are thereby vacated. — On 
 December 11, 1876,' Mr. Speaker Randall aimounced the appointment of Mr. Hiester 
 Clymer, of Pennsylvania, on the Committee on Appropriations in place of himself, 
 who had retired hj reason of being elected Speaker. It does not appear that any 
 request was made of the House to relieve Mr. Randall of this committee service. 
 
 231. Rising in his place, Mr. Speaker Clay addressed the House, 
 announcing his resignation. 
 
 The Speaker having resigned, the chair remained vacant, and the 
 Clerk presided until a successor was elected. 
 
 The Speaker having resigned in 1814, his successor, when elected, 
 took the oath. 
 
 A Speaker being elected to fill a vacancy caused by resignation, the 
 Senate, biit not the President, was notified of the fact. 
 
 A resolution of thanks to a Speaker who had resigned was agreed to 
 before the election of a successor. 
 
 On January 19, 1814,^ after the business of the House had proceeded some time, 
 the Speaker, rising in his place, addressed the House briefly, announcing his resigna- 
 tion as Speaker. 
 
 He then left the chair, which remained vacant. 
 
 Then, on motion of Mr. William Findley, of Pennsylvania, the Clerk putting 
 the motion : 
 
 Resolved, That the tlianks of this House be presented to Henry Clay, in testimony of their approba- 
 tion of his conduct in tlip arduous and important duties assigned to him as Speaker of this House. 
 
 A motion to adjourn having been decided in the negative, the House proceeded 
 by ballot to the choice of a Speaker, in place of Henry Clay, resigned; and, upon 
 the examination of the ballots, it appeared that Langdon Cheves, one of the Repre- 
 sentatives from the State of South Carolina, was duly elected. 
 
 Mr. Cheves, having been conducted to the chair, addressed the House. Then 
 the oath was administered to him by Mr. Findley. 
 
 On the next day: 
 
 Resolved, That the Clerk of tliis House inform the Senate that, Henry Clay having yesterday resigned 
 his seat as Speaker, the House of Representatives have made choice of Langdon Cheves, one of the Rep- 
 resentatives from the State of South Carolina, as their Speaker. 
 
 No message seems to have been sent to the President. 
 
 232. In 1820, at the beginning of a second session, the Clerk called 
 the House to order, and after ascertaining the presence of a quorum pre- 
 sented a letter of resignation from the Speaker. 
 
 The Speaker having resigned, no action of the House excusing him 
 from service is taken. 
 
 The Speaker having resigned in 1820, it does not appear that his suc- 
 cessor took the oath. 
 
 ' Second session Forty-fourth Congress, Journal, p. 56; Record, p. 129. 
 
 - Second session Thirteenth Congress, Jomnal, pp. 240-242 (Galea & Seaton, ed.); Annals, p. 1057.
 
 § 233 THE OFFICERS OF THE HOUSE AND THEIR ELECTION. 133 
 
 A Speaker being elected to fill a vacancy caused by resignation, the 
 Senate, but not the President, was notified of the fact. 
 
 In the earlier practice when a series of ballots were taken, the Jour- 
 nal recorded only the bare result of the decisive ballot. 
 
 On November 13, 1820,' the House was called together at the opening of the 
 second session of the Congress by the Clerk, and the roll of Members was called by 
 States. A quorum appearing, the Clerk stated that fact, and then announced to 
 the House a letter^ addressed to him by Henry Clay, Speaker of the House, in wliich 
 Jklr. Clay requested the Clerk to communicate to the House the fact of his inability 
 to attend — 
 
 and to respectfully ask it to allow me to resign the office of its Speaker, which I have the honor tij hold, 
 and to consider this as the act of my resignation. 
 
 This letter being read, no motion was made to permit the Speaker to be excused 
 from serving, but the House proceeded at once to ballot^ to elect a Speaker. Messrs. 
 Thomas Xe\vi;on, of Virginia, and Jonathan O. Moseley, of Connecticut, were 
 appointed a committee to count the ballots. After 7 ballots, in wliich no one had 
 a majority of the votes given, as required by the rule,^ the House adjourned. On 
 the succeeding day, also, the balloting was fruitless, but on November 15, on the 
 twenty-second ballot, the result was announced as follows: The whole number of 
 votes were 148, 75 necessary to a choice. The votes were: For Mr. Taylor, 76; for 
 Mr. Lowndes, 44; for Mr. Smith, 27; scattering, 1.^ 
 
 So John W. Taylor, a Representative from the State of New York, was elected 
 Speaker. 
 
 Mr. Taylor addressed the House, but the Journal does not indicate that the oath 
 was administered. 
 
 On motion of Mr. Nelson, of Virginia: 
 
 Ordered, That a message be sent to the Senate, to inform them that a quorum of this House is assem- 
 bled; that they have elected John W. Taylor, one of the Representatives from the State of New York, 
 their Speaker, in the room of Henry Clay, resigned, and are now ready to proceed to business; and that 
 the Clerk go with the said message. 
 
 There is nothing to indicate that a notice of the election of the new Speaker 
 was sent to the President. 
 
 233. In 1834 the Speaker, intending to resign, arose in his place and 
 informed the House, setting a futvire day for the act. 
 
 The Speaker having announced his resignation, made a farewell 
 address and left the chair. 
 
 The farewell address of the Speaker appears in full in the Journal. 
 
 The Speaker having resigned in 1834, his successor took the oath. 
 
 'Second session Sixteenth Congress, Journal, pp. 5-7 (Gales & Seaton ed.); Annals, pp. 434-438. 
 
 ^ This letter appears in full in the Journal. 
 
 ' The Journal makes no mention of a motion to proceed to the election of a Speaker; but the .Vnnals 
 states that such a motion was made by Mr. Thomas Newton, of Virginia. 
 
 * See section 6003, Volume V, of this work for the rule at that time. 
 
 ' The Journal does not record these ballotings in detail, but announces merely that "upon an exami- 
 nation of the twenty-second Vjallot, it appeared that John W. Taylor, etc., was duly elected."
 
 134 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 234 
 
 On May 30, 1834,' the Journal has this entry: 
 
 Mr. Speaker Stevenson rose, and informed the House that he liad taken the chair this morning, 
 though still laboring under severe and continued indisposition, for tlie purpose of opening the House, 
 and preventing any delay in its business, and likewise for the purpose of announcing his determination 
 of resigning the Speaker's chair and his seat in Congress. This he proposed doing on Monday next at 11 
 o'clock. He had formed this resolution under a deep sense of duty, and because his state of liealth 
 rendered it impossible for him (as must be apparent to the House) to discharge, in person, the laborious 
 duties of the Chair, and he had therefore deemed it respectful and proper to give this early notice of 
 his intention to retire. 
 
 On Monday, June 2,^ immediately after the reading of the Journal, the Speaker 
 arose and addressed the House. He said he had attended for the purpose of resign- 
 ing the office of Speaker, and of annoimcing the fact that he had communicated to 
 the executive of Virginia liis resignation as one of the Representatives of that State. 
 Mr. Speaker then addressed farewell remarks to the House. These appear in full 
 in the Journal. 
 
 Having completed liis remarks, Mr. Stevenson then descended from the chair 
 and withdrew. 
 
 Mr. Charles F. Mercer, of Virginia, then moved that the House proceed to the 
 election of a Speaker. 
 
 The Clerk put this motion, which was agreed to ; and then nominated 6 tellers 
 to collect and count the ballots. Of this proceeding, however, the Journal has only 
 this entry. 
 
 The House, on motion, proceeded by ballot to the choice of a Speaker in the place of Andrew Steven- 
 son, resigned, and, upon an examination of the tenth ballot, it appeared that John Bell, one of the 
 Representatives from the State of Tennessee, was duly elected; upon which, Mr. Bell was conducted 
 to the Speaker's chair by Mr. John Quincy Adams and Mr. Richard M. Johnson, from whence he addressed 
 the House as follows: [Address follows in full.] 
 
 The oath of office to support the Constitution of the United States was then administered to the 
 Speaker-elect by Mr. Williams, one of the Representatives from t'ne State of North Carolina. 
 
 234. The Speaker having died during the recess of Congress, the 
 Clerk called the House to order, ascertained the presence of a quorum, 
 and entertained a motion to proceed to election of a Speaker. — On Decem- 
 ber 4, 1876,^ on the first day of the session, the Clerk of the House, having called 
 the House to order at 12 m., announced the death of Hon. Michael C. Kerr, late 
 Speaker; and then proceeded to call the roll of Members by States. 
 
 A quorum having been disclosed, and its presence announced by the Clerk, 
 Mr. William S. Holman, of Indiana, presented this resolution: 
 
 Whereas the House being informed that since its last adjournment Hon. Michael C. Kerr, who at 
 the commencement of the present Congress was elected Speaker of the House, has departed this life, 
 creating a vacancy in the office of Speaker; therefore 
 
 Resolved, That the House do now proceed to the election of a Speaker viva voce. 
 
 This resolution, which was held to be of high privilege, was agreed to. 
 
 'First session Twenty-third Congress, Journal, p. 672; Debates, p. 4335. The Speaker addressed 
 the House immediately after the reading of the Journal. 
 2 Journal, pp. 689-691; Debates, pp. 4368-4373. 
 ^Second session Forty-fourth Congress, Journal, pp. 3-10; Record, pp. 3-6.
 
 § 235 THE OFFICERS OF THE HOUSE AND THEIR ELECTION. 135 
 
 235. The House, in a rule continuing- the Clerk in office until the 
 election of his successor, assumed to perpetuate its authority beyond its 
 own existence. — On March 1, 1791,^ at the close of the first Congress, it was 
 
 Resolved, That the Clerk of the House of Representatives of the United States shall be deemed 
 to continue in office until another be appointed. 
 
 Again, on ilarch 2, 1793,^ at the close of the Second Congress, a similar reso- 
 lution was agreed to. 
 
 236. The Clerk having died in the recess of Congress, the House was 
 informed as soon as a quorum had been ascertained and new Members 
 sw^orn in. 
 
 The Clerk having died, the House at once elected a successor, declin- 
 ing to have the chief clerk fill the vacancy temporarily. 
 
 On December 3, 1838,^ the Speaker laid before the House the following com- 
 munication: 
 
 Office House of Representatives of the United States, 
 
 Washington, December 3, 1838. 
 
 Sir: The painful duty is devolved upon me of informing you, and, through you, the House of 
 Representatives of the United States, of the death of Walter S. Franklin, esq., Clerk of the House. 
 He died on the 20th of September last, at Lancaster, in Pennsylvania. 
 
 In making this communication, I can not omit to embrace the opportunity publicly to express 
 the deep regret of every officer of the House at the loss the public and themselves have sustained in 
 the death of Mr. Franklin. 
 
 With much respect, sir, your obedient servant, 
 
 S. BURCH, 
 
 Chief Clerk of the Office, and Acting Clerh House of Representatives. 
 Hon. J. K. Polk, 
 
 Speaker House of Representatives. 
 
 The House disagreed to a proposition that the principal assistant clerk act as 
 Clerk until the House should fill the vacanc}', and entertained and agreed to a 
 motion that — 
 
 the House do forthwith proceed to the election of a Clerk. 
 
 Accordingly the House proceeded to the election of a Clerk. 
 
 These proceedings took place after the roll had been called by States to ascer- 
 tain the presence of a quorum, and after the new Members had been sworn in, 
 but before the Senate or the President had been informed that a quorum of the 
 House was in attendance. 
 
 It does not appear that anj" message was sent to the Senate informing them 
 that the House had elected a Clerk. 
 
 237. The election of the Clerk of the House presents a question of 
 privilege. 
 
 The office of Clerk becoming vacant it was held that the House would 
 not be organized for business until a Clerk should be elected. 
 
 The preparation and reading of the Journal is not prevented by the 
 death of the officer having it in charge. 
 
 •Third session First Congress, Journal, p. 396 (Gales & Seaton, ed.). 
 'Second session Second Congress, Journal, p. 731 (Gales & Seaton, ed.). 
 'Third session Twenty-fifth Congress, Journal, p. S; Globe, p. 1
 
 136 PBECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 238 
 
 On April 16, 1850,' Mr. Thomas L. Harris, of Illinois, moved that the House 
 proceed to the election of a Clerk, to supply the vacancy occasioned by the death of 
 Thomas J. Campbell. 
 
 Pending the consideration of this motion, Mr. Albert G. Brown, of Mississippi, 
 submitted the following resolution: 
 
 Resolved, That the order heretofore passed by the House postponing the election of a Doorkeeper 
 be, and the same is hereby, rescinded ; and that the House of P^epresentatives will proceed at once to 
 the election of a Clerk and Doorkeeper for the Thirty-first Congress. 
 
 The Speaker^ decided that the resolution was out of order, on the ground that 
 the House could take no action upon or transact other business than the election of 
 Clerk until such election is effected. Until a Clerk should be elected the House 
 would not be organized. 
 
 From tliis decision of the Chair Mr. A. G. Brown appealed, and the question 
 being put, "Shall the decision of the Chair stand as the judgment of the House?" 
 it was decided in the affirmative. 
 
 The record of the debate^ shows that the Speaker expressed the opinion that 
 the House was not organized until a Clerk was elected.^ In this case the Clerk had 
 died, and the Journal on this morning was read by one of the subordinate officers 
 of the late Clerk. Question as to tliis proceeding having been raised by Mr. Wil- 
 lard P. Hall, of Virginia, the Speaker said that the Journal had been prepared as 
 usual under the direction of the Speaker. The Chair did not think that the death 
 of the Clerk should prevent the reading or preparation of the Journal.^ 
 
 238. The Clerk having resigned, the House elected his successor. 
 
 In the early days of the House two oaths were administered to the 
 Clerk. 
 
 On December 9, 1800," the Clerk having resigned, the House elected John Holt 
 Oswald his successor. The oath to support the Constitution of the United States, 
 together with the oath of office as prescribed by the act entitled "An act to regu- 
 late the time and manner of administering certain oaths, "were then administered 
 by Mr. Speaker to the Clerk.' 
 
 239. The Clerk ha.ving resigned, the House, after some intervening 
 business, elected his successor. — On Saturday, January 28, 1815,* the Speaker 
 laid before the House a letter, addressed to the Speaker by the Clerk of the House, 
 resigning the office of Clerk. 
 
 The letter was ordered to lie on the table. 
 
 ' First session Thirty-first Congress, Journal, p. 789. 
 
 -Howell Cobb, of Geoi-gia, Speaker. 
 
 3 Globe, p. 741. 
 
 <0n December 2, 1833, Walter S. Franklin, of Pennsylvania, was elected Clerk of the House. On 
 December 3 he appeared and qualified. (First session Twenty-third Congress, Journal, pp. 9, 10.) 
 
 'The Joiu-nal is now prepared, not by the Clerk, but by the Jotunal Clerk, and is read by one of 
 the reading clerks. 
 
 ''Second session Sixth Congress, Journal, p. 736 (Gales & Seaton, ed.). 
 
 'By the act of 1789 (1 Stat. L., p. 23) two oaths were required of the Clerk. This has since been 
 changed. 
 
 'Third session Thirteenth Congress, Journal, pp. (594, 697-699 (Gales & Seaton, ed.): Annals, pp. 
 1107, 1113.
 
 § 240 THE OFFICERS OF THE HOUSE AND THEIR ELECTION. 137 
 
 On Monday, Januarj' 30, after business had proceeded for a time, it was 
 
 Resolved, That this House will proceed, on this day at 2 o'clock, to the appointment of a Clerk, 
 in the room of Patrick Magruder, who has resigned that office. 
 
 Accordingly at 2 o'clock a ballot was taken, and it appears that Thomas 
 Dougherty was duly elected. 
 
 On January 31 he gave his attendance and took the oath of ofRce. 
 
 240. In 1860 the House decided that it might inform the Senate and 
 President of its organization and election of a Speaker before it had 
 elected a Clerk. — On February 1, 1860.^ a Speaker had been elected, the oath had 
 been administered to the Members and Delegates, and rules had been adopted. 
 Thereupon Mr. Reuben E. Fenton, of New York, offered this resolution : 
 
 Resolved, That a message be sent to the Senate to inform that body that a quorum of the House of 
 Representatives has assembled, and that WiUiam Pennington, one of the Representatives from the State 
 of New Jersey, has been chosen Speaker, and that the House is now ready to proceed to business. 
 
 Mr. William Smith, of Virginia, questioned the propriety of the resolution 
 before the election of a Clerk. 
 
 After debate, in which it was stated that it had been the custom of the House 
 to agree to similar resolutions before the election of Clerk, the Speaker^ held that 
 the practice of the House had been in accordance with the proposed action, and 
 that there was no necessity that the notice should be delayed until the election of a 
 Clerk. The present Clerk could communicate the message. 
 
 The resolution was accordingly agreed to. Then, also, a resolution of notifi- 
 cation to the President was agreed to before the election of Clerk. After that the 
 House proceeded to the election of Clerk. 
 
 241. By unanimous consent, in 1867, the House elected its Clerk by 
 resolution. 
 
 In 1867 the law of 1789 was considered as binding the House to elect 
 a Clerk before proceeding to business. 
 
 On March 4, 1867,' at the organization of the House, after the Speaker had been 
 elected, and the oath had been administered to him and by him to the Members, 
 resolutions were adopted for notifying the President and the Senate of the organ- 
 ization of the House. Then rules were adopted. 
 
 After this ilr. Henry L. Dawes, of Massachusetts, presented a resolution that 
 Edward McPherson, of Pennsylvania, be, and hereby is, elected Clerk. 
 
 The Speaker asked unanimous consent to the procedure of electing a Clerk bj' 
 resolution, when Mr. Robert C. Schenck, of Ohio, objectetl to the election of a Clerk 
 at this time, on the ground that it had been understood that no other officers than 
 the Speaker were to be elected this day. 
 
 Mr. Thaddeus Stevens, of Pennsj^lvania, said that such had been the under- 
 standing, but a reference had showTi that under the law no business could be trans- 
 acted until the election of both a Speaker and Clerk. 
 
 ' First session Thirty-sixth Congress, Journal, pp. 167, 170; Globe, pp. 656, 661, 662. 
 
 - William Pennington, of New Jersey, Speaker. 
 
 ^ First session Fortieth Congress, Globe, pp. 5, 7; Journal, pp. 9, 10.
 
 138 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 242 
 
 The Speaker ' said : 
 
 The Chair has ascertained that there are precedents on this subject. In the thirty-first Congress, 
 when the Clerk died, the Speaker said that no business could be transacted until another Clerk was 
 elected, because there was no officer to carry messages to the Senate. 
 
 Accordingly, there being no objection, the resohition was acted on and Mr. 
 McPherson was elected. 
 
 On the succeeding day, and after business had intervened, the remaining officers 
 were elected. 
 
 242. It has been decided that notwithstanding the requirements of 
 the act of 1789, the House may proceed to business before the election of 
 a Clerk. — On December 31, IS-iO,- after the election of Speaker, the House agreed 
 to this resolution: 
 
 Resolved, That the House will proceed to the election of a Clerk and other officers on Thursday, the 
 3d day of January, 1850. 
 
 No choice of Clerk being effected on January 3, the Speaker held the order 
 unfinished business on the 4th. On that day the further execution of the order was 
 postponed until the 7th. 
 
 Then the House proceeded to the regular order of business provided in the 
 rules, when Mr. Samuel W. Inge, of Alabama, rose to a question of privilege. The 
 provisions of the act of 1789 required the Clerk of the House to be sworn before it 
 was competent for the House to proceed to other business. He therefore moved 
 that the House proceed to the election of a Clerk in compliance \vith the provisions 
 of the said act. 
 
 The Speaker ^ decided that the House having by resolution fixed a day for the 
 election of Clerk and other officers, the motion of Mr. Inge was out of order. The 
 House had put its own construction on the point raised. 
 
 Mr. Jolin L. Robinson, of Indiana, appealed, but Mr. Inge withdrew his motion, 
 and the matter fell. 
 
 243. A question has arisen as to whether or not the House, in the face 
 of the provision of law, may proceed to business before the election of a 
 Clerk. — On February 1, 18G0,* the House had elected a Speaker and adopted rules, 
 but had not chosen a Clerk, when Mr. John S. Phelps, of Missouri, proposed to 
 introduce a bill making appropriations to defray certain deficiencies in the appro- 
 priations for the Post-Office Department. 
 
 Mr. Thaddeus Stevens, of Pennsylvania, made the point of order that the bill 
 could not be introduced at this time. 
 
 The Speaker ' said : 
 The opinion of the Chair is tliat such business can not be transacted until after the election of a 
 Clerk." 
 
 ' Schuyler Colfax, of Indiana, Speaker. 
 
 = First session Thirty-first Congress, Journal, pp. 190, 228; Globe, p. 102. 
 
 ^Howell Cobb, of Georgia, Speaker. 
 
 ■* First session Thirty-sixth Congress, Globe, p. 656. 
 
 ' William Pennington, of New Jersey, Speaker. 
 
 " Mr. Phelps, who was the oldest Member of the House in the years of consecutive service, said, 
 after the decision of the Speaker, that as the House had elected a Speaker, and under the provisions of 
 the Constitution allowing it to make rules had adopted rules, and as among those rules was one contin- 
 uing the present Clerk until another should be elected, it seemed clear to him that the House might 
 proceed to business. He cared not what the law might be. The House might make rules overriding 
 the law. (Globe, p. 656.)
 
 § 244 THE OFFICERS OF THE HOUSE AND THEIR ELECTION. 139 
 
 244. A Speaker having been elected, the House has proceeded to leg- 
 islative and other business before the election of a Clerk. 
 
 The Clerk of the former House continues to act as Clerk of the new- 
 House until his successor is elected. 
 
 An instance wherein certain oflicers of the former House continued to 
 act through the new Congress, no successor being elected. 
 
 On December 22, 1S49, the House, after a long contest, elected Mr. Howell 
 Cobb, of Georgia, Speaker. 
 
 On the next legislative day, December 24, the oath was administered to the 
 Members of the House. Then, before any suggestion was made as to the election 
 of other officers, a message was sent to the Senate informing that body that a quorum 
 of the House had assembled, that Howell Cobb had been chosen Speaker, and that 
 the House was ready to proceed to business. Then the appointment of the usual 
 committee to join the Senate committee in notifying the President of the United 
 States that a quorum had assembled and that Congress was ready to receive any 
 communication was authorized. 
 
 A proposition was then made to adopt rules, but postponed. Seats were 
 dra^vn and the hour of daily meeting was fixed. Then the message of the President 
 was received and ordered printed. 
 
 On December 27 the rules of the preceding House were adopted temporarily, 
 the President's message was read, and the committees were appointed. 
 
 Before the appointment of committees George W. Jones, of Tennessee, uro-ed 
 that under the act of 1789 the committees should not be appointed imtil a Clerk 
 had been elected and sworn. And soon after Mr. James Thompson, of Pennsylvania, 
 offered this resolution: 
 
 Resolved, That the House will proceed to the election of Clerk and other officers on Thursday, the 
 3d of January, 1850. 
 
 On December 31 this resolution was agreed to. On this day, also, the House 
 passed House bill No. 1, and ordered the Clerk (the Clerk of the last House, of 
 course) to request the concurrence of the Senate. 
 
 Voting for Clerk began on January 3, and on January 4 was postponed until 
 January 7, although a point of order was made that it was not competent for the 
 House to proceed to other business until the Clerk had been elected. Then, on Jan- 
 uary 7, the House proceeded to vote for Clerk, and continued to do so until January 
 11, when Thomas J. Campbell was elected. 
 
 The House then proceeded to the election of a Sergeant-at-Arms, but on Jan- 
 uary 14 suspended the voting by postponing the further execution of the order 
 until the next day. Thereupon the House proceeded to the consideration of the 
 report of the Committee on Rules. 
 
 On January 15 a Sergeant-at-Arms was elected and the House next proceeded 
 to the election of Doorkeeper. No choice resulting, after many trials, the House 
 voted to postpone the further execution of the order for the election of officers 
 until March 1, 1851, or until within two days of the end of the Congress. This 
 motion was agreed to, and the Doorkeeper and Postmaster of the previous House 
 continued in their positions by the acquiescence of the House.' 
 
 ' First session Thirty-first Congress, Journal, pp. 164, 167, 168, 184, 186, 190, 202, 225, 291 308 
 366; Globe, pp. 66, 84, 88, 89, 102, 141, 188.
 
 140 PRECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 245 
 
 On March 3, 1851,' the last day of the session, the election of Doorkeeper was 
 postponed indefinitelj'. 
 
 245. The House has held, notwithstanding the law of 1789, that it 
 may adopt rules before electing a Clerk. — On February 1, 18G0,- the Speaker 
 was elected, and after he had taken the oath and had in turn administered the oath 
 to the Members and Delegates, Mr. Israel Washburn, jr., of Maine, submitted the 
 follomng resolution: 
 
 Resolved, That the rules of the House of Representatives of the Thirty-fifth Congress shall be the 
 rules of the House of Representatives until otherwise ordered. 
 
 Mr. William G. Whiteley, of Delaware, made the point of order that after the 
 election of Speaker nothing was in order but the election of Clerk. He quoted that 
 passage of the law of 1789 which provides that the oath shall be administered "to 
 the Clerk previous to entering on any other business." 
 
 The Speaker ' overruled the point of order, stating that it had been the custom 
 of the House to adopt its rules pre-vnous to the election of a Clerk. 
 
 246. The Clerk desiring to be away, the House gave him leave of 
 absence. — On xVpril 28, 1834,* a Member stated that the Clerk of the House had 
 received news of the death of a member of his family, whereupon 
 
 Ordered, That the Clerk have leave to be absent from the service of this House for four or five days. 
 
 247. On November 20, 1800,= 
 
 Ordered, That the Clerk of this House have leave to he absent from the service of the House for three 
 weeks. 
 
 248. In the temporary absence of the Clerk the House has chosen a 
 Clerk pro tempore. — On December D, 1813," Patrick Magruder. the Clerk to 
 the House, being absent from indisposition, the House proceeded to the choice of 
 a Clerk pro tempore, and George Magruder was unanimously chosen. 
 
 249. The House declined to interfere with the Clerk's power of 
 removing his subordinates. — On December 31, 1833,' Mr. John Davis, of Massa- 
 chusetts, called attention of the House to the removal from office by the Clerk of 
 the House of Noah Fletcher, who had been an employee of the office since 1819. 
 He presented a memorial from Fletcher, in which the latter said that he had been 
 removed without cause, and appealed to the House to rectify the injustice. Mr. 
 Davis offered tliis resolution : 
 
 Resolved, That Noah Fletcher was removed from his office of Assistant Clerk in this House without 
 any sufficient cause, and ought to he immediately reinstated. 
 
 After debate, in the course of wliich it was urged that the Clerk, being responsi- 
 ble to the House, had the right to select his own assistants, the House, on January 13, 
 1834, laid the resolution on the table — yeas, 120; nays, 83. 
 
 ' Second session Thirty-first Congress, Journal, p. 406. 
 
 ^ First session Thirty-sixth Congress, Journal, p. 167; Globe, p. 655. 
 
 ^William Pennington, of Now Jersey, Speaker. 
 
 * First session Twcnty-tliird Congress, Journal, p. 566; Debates, p. 3821. 
 
 5 Second session Sixth Congress, Journal, p. 722 (Gales and Seaton, ed.); Annals, p. 783. 
 
 " Second session Thirteenth Congress, Journal, p. 169 (Gales and Seaton, ed.); Annals, p. 787. 
 
 ' First session Twenty-third Congress, Journal, pp. 140, 183; Debates, pp. 2290, 2368.
 
 § 250 THE OFB'ICEES OF THE HOUSE AND THEIR ELECTION. 141 
 
 250. There being a conflict of authority between the Clerk and 
 another officer, the House investigated. — In 1841 ^ a conti-oversy occurred 
 between the Clerk of the House and the Printer as to the power of the Clerk to con- 
 trol the binding of certain documents. The letter of the Clerk was presented to the 
 House by the Speaker, and referred to a select conmiittee, who investigated the 
 subject. 
 
 251. The Clerk is required to note all questions of order and the 
 decisions thereon, and print the record thereof as an appendix to the 
 Journal. 
 
 It is the duty of the Clerk to print and distribute the Journal. 
 
 The Clerk attests and affixes the seal of the House to all writs, war- 
 rants, and subpoenas issued by order of the House. 
 
 The Clerk is required to certify to the passage of all bills and joint 
 resolutions. 
 
 The Clerk makes or approves all contracts, etc., for labor, materials, 
 etc., for the House. 
 
 The Clerk keeps account of disbursement of the contingent fund and 
 the stationery accounts of Members. 
 
 The Clerk is required to pay the officers and employees of the House 
 on the last secular day of each month. 
 
 Present form and history of section 3 of Rule III. 
 
 Section 3 of Rule III provides : 
 
 He [the Clerk] shall note all questions of order, with the decisions thereon ,the record of which shall 
 be printed as an appendix to the Journal of each session; and complete, as soon after the close of the 
 session as possible, the printing and distribution to Members and Delegates of the Journal of the House, 
 together with an accurate and complete index; retain in the library at his office, for the use of the Mem- 
 bers and officers of the House, and not to be withdrawn therefrom, two copies of all the books and printed 
 documents deposited there; send, at the end of each session, a printed copy of the Journal thereof to the 
 executive and to each branch of the legislatiu-e of everj^ State and Territory; preserve for and deliver 
 or mail to each Member and Delegate an extra copy, in good binding, of all documents printed by order 
 of either House of the Congress to which he belonged ; attest and affix the seal - of the House to all writs, 
 warrants, and subpoenas issued by order of the House; certify to the passage of all bills and joint resolu- 
 tions; make or approve all contracts, bargains, or agreements relative to furnishing any matter or thing, 
 or for the performance of any labor for the House of Representatives, in pvu-suance of law or order of the 
 House; keep full and acciirate accounts of the disbursements out of the contingent fund of the House; 
 keep the stationery account of Members and Delegates, and pay them as provided by law. He shall 
 pay to the officers and employees of the House of Representatives, the last day of each month, the 
 amount of their salaries that shall be due them; and when the last day of the month falls on Sunday he 
 shall pay them on the day next preceding. 
 
 This rule, except the last sentence, is as agreed on by the House at the time of 
 the revision of 1880.' It was composed of seven of the former rules: Rule 14, 
 
 ' Second session Twenty-sixth Congress, Journal, pp. 128, 193, 279. 
 
 ^ This provision relating to the seal is from former Rule 8, providing that "all writs, warrants, and 
 subpoenas issued by order of the House shall be under his [the Speaker's] hand and seal," and which 
 dated from November 13, 1794 (Journal Third and Fourth Congresses, p. 229), and existed until the 
 adoption of the present form in 1880. 
 
 ^ Second session Forty-sixth Congress, Record, p. 555.
 
 142 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 252 
 
 dating from November 13, 1794/ and providing for distributing the Journals to the 
 States; Rule 15, dating from December 23, 1811,^ providing for noting decisions of 
 order; Rule 16, dating from June IS, 1832,^ and providing for sending the Journal 
 to Members and Delegates; Rule 17, dating from December 22, 1826,^ and provid- 
 ing for retaming books and documents in the Library; Rule 18, dating from Feb- 
 ruary 9, 1831,^ providing for sending bound volumes of documents to Members; 
 Rule 20, dated June 18, 1832,^ providing for an index to the acts of Congress; and 
 Rule 21, dated January 30, 1846," providing for the making and approval of con- 
 tracts. The last sentence, relating to payment of officers and employees, dates 
 from January 28, 1892.' 
 
 252. It is the duty of the Clerk to have printed and delivered to each 
 Member a list of the reports required to be made to Congress. 
 
 Present form and history of section 2 of Rule III. 
 Section 2 of Rule III provides: 
 
 He [the Clerk] shall make and cause to be printed and delivered to each Member, ormailed to his 
 address at the commencement of every regular session of Congress, a list of the reports which it is the 
 duty of any officer or Department to make to Congress, referring to the act or resolution and page of the 
 volume of the laws or Journal in which it may be contained, and placing under the name of each officer 
 the list of reports required of him to be made. 
 
 This rule dates from March 13, 1822.' On April 21, 1836," a provision was 
 added requiring the Clerk to make a weekly statement of business on the Speaker's 
 table; but this was stricken out in the revision of 1890, when the change in the 
 order of business had prevented an accumulation of business on the Speaker's 
 table. 
 
 253. The statutes prescribe certain duties for the Clerk as to the 
 organization of the House and the administration of its affairs. — Before the 
 meeting of each Congress the Clerk makes up a roll of such Members as are shown 
 by their credentials to be regidarly elected.'" If chcumstances are such that the 
 Clerk may not perform tliis duty, it devolves in succession upon the Sergeant-at- 
 Arms, and then upon the Doorkeeper." 
 
 Except when Congress is in session the Clerk certifies the paj^ certificates of 
 Members."' 
 
 Reports of conmiittees are preserved, bound, and indexed, and distributed 
 under direction of the Clerk." The Clerk is entitled to 10 cents for each 100 words 
 of certified extracts from the Journal, except where such transcripts are required 
 
 'Third and Fourth Congresses, Joiunal, p. 229. (Gales & Seaton ed.) 
 
 2 First session Twelfth Congress, Reports, No. 38. 
 
 ^ First session Twenty-second Congress, Journal, p. 899. 
 
 * Second session Nineteenth Congress, Journal, p. 87. 
 
 * Second session Twenty-first Congress, Jotu-nal, p. 284. 
 ^ First session Twenty-ninth Congress, Globe, p. 279. 
 'First session Fifty-second Congress, Cong. Record, p. 652. 
 
 * First session Seventeenth Congress, Journal, p. 351. 
 
 ^ First session Twenty-fourth Congress, Cong. Globe, p. 320. 
 '"Revised Statutes, section 31. 
 " Revised Statutes, sections 32, 33. 
 
 '^ Revised Statutes, section 38; Laws, second session Forty-third Congress, p. 389; 19 Stat. L., p. 145. 
 "24 Stat. L., p. 346; vol. 28, p. 622.
 
 § 254 THE OFFICEBS OF THE HOUSE AND THEIR ELECTION. 143 
 
 in connection ^\-ith the duties of a Government office.' Printing and binding and 
 the furnishing of blank books for the House are subject to the written order of the 
 Clerk.' The distribution of certain documents to various homes for soldiers and 
 sailors is made by the Clerk.^ 
 
 On the first day of each session of Congress the Clerk submits to the House 
 certain statements and reports the names, compensations, etc., of clerks and mes- 
 sengers of the House, and whether any of them may be dispensed with; an itemized 
 statement of the expenditure of the contingent fund : * an exhibit of the sums drawn 
 from the Treasury-, and the balance remaining; ^ all the expenditures of the House 
 at the end of each fiscal year; * a full and complete statement of his receipts and 
 expenditures as Clerk,' and an account of all property of the United States in liis 
 possession.* 
 
 The Clerk requires of the disbursing officers acting under him precise and ana- 
 lytical returns of the moneys expended, as a basis for an annual return to Congress.^ 
 
 The Clerk, after advertisement for bids, contracts for the stationery for sup- 
 phdng the House, giving preference to domestic articles over foreign, providing 
 such can be had on as satisfactory terms as imported articles.'" 
 
 The Clerk may, with permission of the Joint Committee on the Library, have 
 the use of the Library luider the regulations that apply to Members." 
 
 The Clerk disburses the pay of half of the Capitol Police.'- 
 
 The Clerk is required to make contracts with the lowest bidder for packing 
 boxes for use of the House. '^ 
 
 The Clerk gives a bond of 820,000.'^ 
 
 254. The custody and use of the seal is with the Clerk, under direc- 
 tion of the House. — On July 18, 1892,'" Mr. Benton McMillin. of Tennessee, pre- 
 sented the follow-ing order, which was agreed to by the House: 
 
 Ordered, That the Clerk of the House of Representatives be, and he is hereby, authorized and 
 directed to affix the seal of the House of Representatives to the document entitled "The administration 
 of the United States Government at the beginning of the four hundredth anniversary' of the discoverj- 
 of America." 
 
 At the same time the House passed a joint resolution allowing the Secretary' 
 of State to affix the seal of the United States to the document, and also a concxir- 
 rent resolution authorizing the President to accept the document for preservation 
 among the archives. 
 
 ■ Re\'i8ed Statutes, section 71. 
 
 - Re^-ised Statutes, section 3789. 
 
 = Revised Statutes, section 4837; 28 Stat. L., p. 159. 
 
 ^Re\-ised Statutes, section 60. 
 
 * Revised Statutes, section 61. 
 
 * Re^-ised Statutes, section 63. 
 ^ Revised Statutes, section 70. 
 
 * Revised Statutes, section 72. 
 'Revised Statutes, section 62. 
 
 '"Revised Statutes, sections 66-69; Laws, second session Forty-third Congress, p. 316. 
 
 " Revised Statutes, section 94. 
 
 '=31 Stat. L., p. 963. 
 
 '^31 Stat. L., p. 967. 
 
 '* Revised .Statutes, sections 58 and 59. 
 
 "First session Fifty-second Congress, Record, p. 6342.
 
 144 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 255 
 
 255. On January 19, 1886.' the Committee on Rules of the Senate reported 
 on the subject of the seal of the Senate. They found nothing in the Journals or 
 archives of the Senate to throw any light on the lustory of the seal, although from 
 private letters recently published it had been learned when and by whom it was 
 made. The committee found that there was no authority on the subject of its use, 
 and recommended the adoption of the following rule: 
 
 Resolved, That the Secretary shall have the ciistody of the great seal, and shall use the same for 
 the authentication of process, transcripts, copies, and certificates whenever directed by the Senate. 
 
 256. The seal of the House is in the control of the House rather than 
 of the Speaker. — On January 17, 1901,-, the Speaker laid before the House a let- 
 ter from the Acting Secretary of State requesting that an impression of the seal of 
 the House of Representatives be furnished for the files of the State Department 
 for purposes of reference for authentication. 
 
 The letter having been read, the Speaker ^ said : 
 
 The Chair thinks that this is a matter which should properly be done by order of the House, and 
 therefore submits the draft of an order to be adopted by the House, in pursuance of the request of the 
 State Department. 
 
 The order was then submitted by unanimous consent and agreed to, as follows: 
 
 Ordered, That the Clerk be directed to furnish to the Department of State, in accordance with the 
 request transmitted to the House from that Department, an impression of the seal of the House of 
 Representatives. 
 
 257. The Sergeant-at-Arms attends the sittings and under direction 
 of the Speaker or Chairman of the Committee of the Whole maintains 
 order. 
 
 By a rule, which is not adopted usually until a Speaker is elected, 
 the Sergeant-at-Arms is directed to preserve order under the direction of 
 the Clerk pending the election of a Speaker or Speaker pro tempore. 
 
 The Sergeant-at-Arms executes the commands of the House and all 
 of its processes directed to him by the Speaker. 
 
 The Sergeant-at-Arms disburses the pay and mileage of Members 
 and Delegates. 
 
 Present form and history of section 1 of Rule IV. 
 
 Section 1 of Rule IV provides: 
 
 It shall be the duty of the Sergeant-at-Arms to attend the House and the Committee of the Whole, 
 during their sittings, to maintain order under the direction of the Speaker or Chairman, and, pending 
 the election of a Speaker or Speaker pro tempore, under the direction of the Clerk, execute the com- 
 mands of the House, and all processes issued by authority thereof, directed to him by the Speaker, 
 keep the accounts for the pay and mileage of Members and Delegates, and pay them as provided by law. 
 
 In the First Congress, on April 14, 1789,'' this rule was adopted: 
 
 A Sergeant-at-Arms shall be appointed to hold office during the pleasure of the House, whose duty 
 it shall be to attend the House during its sitting, to execute the commands of the House from time to 
 
 ' Senate Report, first session Forty-ninth Congress, No. 48. 
 ^ Second session Fifty-sixth Congress, Record, p. 1134. 
 'David B. Henderson, of Iowa, Speaker. 
 ' First session First Congress, Joiu-nal. p. 14.
 
 § 258 THE OFB1CERS OF THE HOUSE AND THEIR ELECTION. 145 
 
 time, and all such process, issued by authority thereof, as shall be directed to him by the Speaker. A 
 proper symbol of office shall be provided for the Sergeant-at-Arms, of such form and device as the 
 Speaker shall direct, which shall be borne by the Sergeant when in the execution of his office. 
 
 On April 4, 1838/ a rule was adopted providing that the Sergeant-at-Arms 
 should keep the accounts of the pay and mileage and pay over the same to Members. 
 
 On March 3, 1877,^ in order to meet difficulties that might occur at the organi- 
 zation of the House, a rule was adopted providing that the Sergeant-at-Arms should 
 maintain order under direction of the Clerk when the latter should be presiding. 
 There was much debate over this rule, Mr. James A. Garfield urging that the exist- 
 ing House might not make a rule binding on the next House; but at that time the 
 House, by continuing an old rule of 1860, was perpetuating the theory that the 
 rules of one House might bind the next.^ At the time of the organization of a 
 House this rule has not been adopted, and therefore its effect at that time is 
 extremely doubtful.* 
 
 In the revision of 1880 ^ the substance of the rule was retained, in somewhat 
 different form. Only one change has been made since 1880. In the revision of 
 1890 ' the new provision was added that the Sergeant-at-Arms should attend the 
 Committee of the Whole also, and maintain order under direction of the Chairman. 
 This was stricken out in the Fifty-second and Fifty-third Congresses, but restored 
 in the Fifty-fourth and has continued since as part of the rule. 
 
 258. The statutes as well as the rule define the duties of the Ser- 
 geant-at-Arms, especially with reference to the disbursements made by 
 him. 
 
 The statutes place on the Sergeants-at-Arms of the two Houses the 
 duty of preserving the peace and security of the Capitol and the appoint- 
 ment and control of the Capitol police. 
 
 The act of October 1, 1890,^ after enacting the provisions of House Rule TV in 
 relation to the Sergeant-at-Arms, provides that the pay and mileage of Members 
 and Delegates shall be paid at the Treasiuy on requisitions dra^\^l by the Sergeant- 
 at-Arms, and shall be disbursed by him; that he shall give bond to the United 
 States in the sum of 850,000, no Member of Congress to be a surety on this bond; 
 that he shall continue in office imtil his successor is elected and qualified; that at 
 the commencement of each regular session he shall submit a statement of the sums 
 drawn and disbursed by him; that there shall be employed by him in liis office a 
 deputy, a cashier, a paying teller, a bookkeeper, a messenger, a page, and a laborer, 
 at certain fixed salaries; and that in the adjustment of his accounts the fiscal year 
 shall extend to and include July 3. 
 
 ' Second session Twenty-fifth Congress, Globe, pp. 278, 281. 
 
 ^Second session Forty-fourth Congress, Journal, pp. 635, 669; Record, pp. 2133, 2232-2235. 
 
 2 This theory was finally abandoned in 1890. (See sec. 6743-6745 of Vol. V of this work.) 
 
 * See section 81 of this work. 
 
 'Second session Forty-sixth Congress, Record, p. 204. 
 
 * House Report No. 23, first session Fifty-first Congress. 
 '26 Stat. L., pp. 645, 646. 
 
 5994— VOL 1—07 10
 
 146 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 259 
 
 On the first da}' of each regular session, and at the expiration of his term, he 
 makes out a full and complete account of the Government property in his possession.' 
 
 In addition to liis regular salary he receives no fees- or other emolument. 
 
 In case of a vacancy in the office of the Clerk, or absence or disability of the 
 Clerk, the duties of that official in connection with the organization of a new House 
 devolve on the Sergeant-at-Arms.^ 
 
 In conjunction with the Sergeant-at-Arms of the Senate he makes regulations 
 to preserve the peace and security of the Capitol from defacement and to protect 
 the public property therein, and in connection with this authority is vested the 
 power of arrest.* 
 
 With the Sergeant-at-Arms of the Senate he attends to the uniforming and 
 equipping of the Capitol police.^ 
 
 The captain and lieutenants of the Capitol police are selected jointly by the 
 Sergeants-at-Arms of the two Houses, and privates and watchmen are selected one- 
 half by each of the two officials. The Clerk of the House disburses paj' of one-half." 
 
 259. The Sergeant-at-Arms receives no fees; and the Clerk receives 
 them only for certified extracts of the Journal. — The statutes provide that the 
 Sergeant-at-Arms shall receive no fees or other emoluments in addition to his 
 regular salary.' The Clerk receives for certified extracts from the Journal 10 cents 
 for each sheet containing 100 words.* 
 
 260. The Doorkeeper is required to enforce strictly the rules relating 
 to the privileges of the Hall, and is responsible for the ofl&cial conduct of 
 his employees. 
 
 Present form and history of section 1 of Rule V. 
 Section 1 of Rule V provides : 
 
 The Doorkeeper shall enforce strictly the rules relating to the privileges of the Hall, and be respon- 
 sible to the House for the official conduct of his employees. 
 
 This is the exact form of the revision of 1880.' It was adopted from a portion 
 of old rule No. 27, which was adopted at the suggestion of Mr. Abraham Rencher, 
 of North Carolina, on March 1, 1838." 
 
 261. The Doorkeeper has the custody of all the furniture, books, and 
 public property in the committee and other rooms under his charge. 
 
 At the commencement and close of each session of Congress the Door- 
 keeper is required to make and submit to the House for examination by 
 the Committee on Accounts an inventory of furniture, books, etc. 
 
 Present form and history of section 2 of Rule V. 
 
 ' Revised Statutes, section 72. 
 
 -Revised Statutes, section 53; first session Forty-third Congress, Session haws, p. 87. 
 
 ' Revised Statutes, section 32. 
 
 * Revised Statutes, section 1820. 
 
 ' Revised Statutes, sections 1821, 1823, 1824, 1825. (As to pay of suspended members of police see 
 18 Stat. L., p. 345.) 
 
 6 31 Stat. L., p. 963. 
 
 ' Revised Statutes, section 53. 
 
 * Revised Statutes, section 71. 
 
 ^Second session Forty-sixth Congress, Record, p. 204. 
 '"Second session Twenty-fifth Congress, Globe, p. 203.
 
 § 262 THE OFFICERS OF THE HOUSE AND THEIR ELECTION. 147 
 
 Section 2 of Rule Y provides: 
 
 At the commencement and close of each session of Congress he shall take an inventorj' of all the fur- 
 niture, books, and other public property in the several committee and other rooms under his charge, and 
 report the same to the House, which report shall be referred to the Committee on Accounts to ascertain 
 and determine the amount for which he shall be held liable for missing articles. 
 
 This is the form of rule adopted on January 27, 1880/ on the suggestion of Mr. 
 Joseph R. Hawley, of Connecticut. The Committee on Rules had presented a 
 slightly different form, derived from former Rule 27, which dated from March 2, 
 1865.=' 
 
 On December 13, 1841,^ ilr. Greorge X. Briggs, of Massachusetts, offered this 
 resolution, which was agreed to by the House: 
 
 Resolved, That the office of Assistant Doorkeeper is not necessary for the service of this House, and 
 that the same is hereby abolished. 
 
 262. Tlie statutes impose on the Doorkeeper various duties in addi- 
 tion to those prescribed by the rules. 
 
 The Doorkeeper is required at stated times to return inventories of 
 the Government property in his possession. 
 
 The Doorkeeper appoints superintendents to have charge of the fold- 
 ing and document rooms. 
 
 The Doorkeeper has general charge during the recess of the apart- 
 ments occupied by the House. 
 
 The Doorkeeper has control of the messengers on the soldiers' roll. 
 
 On the first day of each regular session of Congress, and at the expiration of 
 his term of service, the Doorkeeper makes out and returns to Congress a full account 
 of all Government property in his possession.* During the recess he takes care, 
 imder the direction of the Clerk, of the apartments occupied by the House, and pro- 
 vides fuel and other acconamodations for the coming session.^ He also prevents 
 the occupation of the rooms hj unauthorized persons dining the recess.' He sells 
 waste paper, useless documents, and condemned fumitvire, covering the proceeds 
 into the Treasur}'.' 
 
 In case of a vacancy in the offices of Clerk and Sergeant-at-Arms, or disability 
 or absence of both of those officials,* the Doorkeeper performs the duties of the Clerk 
 in relation to making up the roll of Members.' 
 
 ' Second session Forty-sixth Congress, Record, p. 557. 
 
 ^Second session Thirty-eighth Congress, Globe, p. 1317; Journal, p. 387. 
 
 'Second session Twenty-seventh Congress, Journal, p. 40; Globe, p. 14. 
 
 * Revised Statutes, section 72. 
 
 * Revised Statutes, section 73. 
 
 'Second session Forty-second Congress, Journal, p. 1056. 
 
 '22 Stat. L., p. 337. 
 
 'Revised Statutes, section 33. 
 
 ' The Doorkeeper (with the aid of his appointees, viz, the superintendents of the "folding room" 
 and "document room," messengers, pages, folders, and laborers) discharges various duties which are not 
 enumerated in the rules or laws, viz, he announces at the door of the House all messages from the Presi- 
 dent, etc.; keeps the doors of the House; folds and distributes extra documents; furnishes Members 
 with printed copies of bills, reports, and other documents; conveys messages from Members; keeps the 
 Hall, galleries, and committee rooms in order, etc.
 
 148 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 263 
 
 There is a folding room of the House iinder charge of a superintendent appointed 
 by the Doorkeeper, and each Member is notified once in every sixty days of the 
 number and character of publications on hand assigned to him.' 
 
 The Doorkeeper may assign one folder to do clerical work imder the direction 
 of the foreman of the folding room.^ 
 
 The House document room is in charge of a superintendent appointed by the 
 Doorkeeper, who also appoints the assistant.' 
 
 Janitors of committees are under direction of the Doorkeeper.* 
 
 The statutes provide for fourteen messengers on the soldiers' roll, ^ \mder the 
 control of the Doorkeeper, at $1,200 salary each, and such soldiers are not subject 
 to removal except for cause, with the approval of the House." 
 
 On March 2, 1872, after a discussion as to disabled soldiers on the roll of the 
 House, a resolution was adopted, on motion of Mr. Benjamin F. Butler, of Massa- 
 chusetts, advising the officers of the House to retain disabled soldiers in preference 
 to civilians.' 
 
 On June 29, 1870, the House instructed the Doorkeeper to retain in service 
 during recess the crippled soldiers carried on the roll.* 
 
 Mr. William S. Holman, of Indiana, related the history of the soldiers' roll, it 
 having been organized by resolution in 1867 and made permanent by law in the 
 Forty-fourth Congress.' 
 
 263. The House having decided to postpone the election of a Door- 
 keeper, the Doorkeeper of the former House was held to continue in the 
 office until his successor should be elected. 
 
 The House having postponed the election of an officer until a day- 
 certain, a resolution to proceed to the election was held not in order before 
 that date. 
 
 A question as to whether or not a resolution placing the duties of 
 one officer of the House on another involves a question of privilege. — 
 Speaker overruled. 
 
 On January 19, 1850,'" before a Doorkeeper had been elected, the House post- 
 poned until the 1st day of March, 1851, the further execution of the order of the 
 House providing for the election of officers. 
 
 Thereupon Mr. John H. Savage, of Tennessee, rising to a question of privilege, 
 made the point that Robert E. Horner, Doorkeeper of the last House, who continued 
 to act in that capacity, was not Doorkeeper, and objected to his continuing in that 
 capacity. 
 
 ' 28 Stat. L., p. 612. 
 = 31 Stat. L., p. 968. 
 3 28Stat. L., p. 610. 
 "34 Stat. L., p. 394. 
 
 ^ See Record, second session Forty-eighth Congress, p. 1697, for a brief debate relative to the law as 
 to the soldiers' roU. 
 
 "23 Stat. L., pp. 164, 393; second session Forty-second Congress, Journal, p. 952. 
 
 'First session Forty-third Congress, Journal, p. 545; Record, pp. 1905-1907. 
 
 * Second session Forty-first Congress, Journal, p. 1110. 
 
 'See Debate, second session Forty-eighth Congress, Record, p. 1698. 
 
 '"First session Thirty-first Congress, Journal, pp. 374-377; Globe, pp. 188-194.
 
 § 264 THE OFFICERS OF THE HOUSE AND THEIR ELECTION. 149 
 
 The Speaker ' said : 
 
 The Chair has hitherto declined to give any opinion in relation to the effect of the motion to post- 
 pone the election of officers, and has referred the House to its own previous practice. During preceding 
 sessions of Congress, when the elections have not been postponed to so late a day as at the present, and 
 during the present session, the duties of Clerk, Sergeant-at-^\jms, and Doorkeeper, have been performed 
 by the old officers and the House has acquiesced. It is not for the Chair peremptorily to decide that 
 these individuals are not officers of the House ; it is a question for the decision of the House itself. 
 
 On the succeeding legislative day, January 21, ilr. Armistead Burt, of South 
 Carolina, claiming the floor for a question of privilege, offered this resolution : 
 
 Resolved, That this House, having postponed until the 1st day of March, 1851, the election of Door- 
 keeper, the Sergeant-at-Arms of this House shall perform the duties of Doorkeeper until the Doorkeeper 
 shall be elected. 
 
 Mr. George Ashmxui, of Massachusetts, objected to this resolution, on the 
 ground that the gentleman from South Carolina was not entitled to the floor to 
 offer the resolution, and also that it contemplated a change in the rules of the House 
 relating to the duties of the officers. 
 
 The Speaker said : 
 
 The House, by a vote on Saturday last, postponed the further execution of the order of the House 
 in relation to the election of officers until the 1st of March, 1851. Until that time has arrived, in the 
 opinion of the Chair, as expressed several times, it will not be in order to proceed to the election of 
 officers; but it will be in order for the House to appoint temporary officers or persons who shall discharge 
 the duties of those officers. The position occupied by the Doorkeeper and Postmaster is, in the opinion 
 of the Chair, this: They were elected by the House of Representatives of the last Congress. Under 
 the practice of former Congresses, from the First Congress down to the present time, the old officers 
 of the previous Congress have continued to discharge the duties of the respective offices until their 
 successors should have been elected. And the Chair thinks that the officers of the last House can 
 continue to discharge the duties of these offices in the present House until their successors shall have 
 been elected, holding their offices in the interval by the sufferance of the House.^ But the House 
 can at any time provide other persons to discharge these duties. They are not the regularly elected 
 officers of this House and they hold their offices at the sufferance and by the will of the House. This 
 being the state of the case, and the question being one affecting the organization of the House, the 
 Chair decides that it is a question of privilege. 
 
 Mr. Ashmun having appealed, the appeal was debated at length, and the 
 decision of the Chair was finalh' reversed, yeas 101, nays 102. So the resolution 
 proposed by Mr. Burt was not received. 
 
 Mr. Homer continued to act as Doorkeeper. 
 
 264. An officer of the House having resigned, the House voted to 
 proceed to the election of his successor. — On December 7, 1868,' the Speaker 
 laid before the House a letter from C. E. Lippincott, resigning his position as 
 Doorkeeper of the House, said resignation to take effect this day. 
 
 The letter having been read, Mr. William H. Kelsey, of New York, offered as 
 a question of privilege the follo^ving: 
 
 Resolved, That this House now proceed to the election of a Doorkeeper in place of Charles E. 
 Lippincott, resigned. 
 
 ' Howell Cobb, of Georgia, Speaker. 
 
 ^ Again, on Januarj' 24, 1850, the Speaker reaffirmed this ruling. (See Globe, p. 224.) 
 
 ^ Third session Fortieth Congress, Journal, p. 14; Globe, p. 12.
 
 150 PKECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 265 
 
 The resolution was agreed to, and the House proceeded to vote viva voce. 
 
 265. On December 4, 1832/ the House— 
 
 Resolved, That this House will, on Thursday next, at 12.30 o'clock, proceed to the election of a 
 Sergeant-at-Arms to fill the vacancy occasioned by the resignation of John O. Dunn. 
 
 On the appointed day four ballots were taken without an election and the 
 House adjourned to December 10. On that day the balloting was resumed with- 
 out a vote so to do, and after five ballotings Thomas B. Randolph, of Virginia, 
 was elected. 
 
 The oath was administered to him by the Speaker and he assumed the duties 
 of the office. 
 
 266. The death of the Doorkeeper being announced, the House voted 
 to proceed to the election of his successor at a future day. 
 
 In 1838 the House adjourned to attend the funeral of its Doorkeeper. 
 On March 22, 1838,^ the Speaker laid before the House the following com- 
 munication : 
 
 March 22, 1838. 
 Sir: It becomes my duty to communicate to you, and through you to the House of Representatives, 
 that a vacancy has occurred in the office of Doorkeeper of the House by the decease of Overton Carr, 
 esq., which took place on Tuesday night, the 20th of March, 1838. 
 
 Your obedient servant, J. W. Hunter, 
 
 Assistant Doorkeeper. 
 Hon. James K. Polk, 
 
 Speaker of the House of Representatives. 
 
 The communication having been read, on motion of Mr. Charles F. Mercer, 
 
 of Virginia, it was — 
 
 Resolved, That the House will adjourn at 4 o'clock this afternoon to attend the funeral of their 
 deceased Doorkeeper, Overton Carr; that the expenses thereof be defrayed out of Ihe contingent fund 
 and that his widow be paid the salary of the deceased for the present session of Congress. 
 
 On March 23, Mr. Thomas M. T. McKennan, of Pennsylvania, by leave, sub- 
 mitted this resolution: 
 
 Resolved, That this House will proceed, on Monday next, at 2 o'clock, to the election of a principal 
 Doorkeeper to supply the vacancy occasioned by the death of Mr. Overton Carr. 
 
 After debate, tliis resolution was postponed until April 1, in order that the 
 Committee on Accounts might have time to make a report on a subject already 
 committed to them relating to the Doorkeeper's office. 
 
 On April 5 the resolution came up for consideration, and the House proceeded 
 to the election of a Doorkeeper. 
 
 267. The vacancy caused by the death of the Doorkeeper was, after 
 several days, filled by the House by election.— On March 18, 1902,^ Mr. 
 Joseph G. Cannon, of Illinois, offered the following resolution, which was agreed 
 to by the House: 
 
 Resolved, That Frank B. Lyon, of the State of New York, be, and he is hereby, chosen Doorkeeper 
 of the House of Representatives, to fill the vacancy caused by the death of the late Hon. W. J. Glenn. 
 
 ' Second session Twenty-second Congress, Journal, pp. 8, 25, 26; Debates, pp. 819, 821, 822. 
 2 Second session Twenty-fifth Congress, Journal, pp. 045, 646, 706; Globe, p. 253. 
 ' First session Fifty-seventh Congress, Journal, p. 489; Record, p. 2964.
 
 § 268 THE OFFICERS OF THE HOUSE AND THEIR ELECTION. 151 
 
 The death of Mr. Glenn had been announced to the House on March 12.^ No 
 temporary appomtment was made, nor was any provision made for temporary 
 discharge of the duties in the interim. 
 
 268. The Sergeant-at-Arms having resigned, the House instructed 
 the Doorkeeper to perform the duties of the office until the beginning of 
 the next session of Congress. — On June 2G, 1832." the Speaker laid before the 
 House a letter from J. O. Dunn, Sergeant-at-Arms, resigning the office, and sur- 
 rendering his books and papers. 
 
 The letter, which appears in full in the Journal, was read and referred to the 
 Committee on Accounts. 
 
 The House then voted that the Doorkeeper perform the duties of Sergeant-at- 
 Arms until the beginning of the next session of Congress. 
 
 269. Creation of the office of Postmaster. — On April 5, 1838,'' it was — 
 Resolved, That William J. McCormick be appointed Postmaster to this House. 
 
 270. The Postmaster superintends the post-office in the Capitol and is 
 responsible for the prompt and safe delivery of mail. 
 
 Present form and history of Rule VI. 
 
 Rule VI provides: 
 
 The Postmaster shall superintend the post-office kept in the Capitol for the accommodation of 
 Representatives, Delegates, and officers of the House, and be held responsible for the prompt and safe 
 delivery of their mail. 
 
 This is the form adopted in the revision of 1880.* It is similar to the old rule 
 No. 28, which dated from April 4, 1838.^ Immediately after the organization of 
 the Government a room was set apart in the Capitol for the reception and distribu- 
 tion of letters and packets, without an order for that purpose, and was called a 
 post-office." It was superintended by the Doorkeeper and his assistants. On 
 April 9, 1814, the Doorkeeper was authorized to appoint a Postmaster, and an 
 allowance was made to meet the expenses of the office.'' This arrangement con- 
 tmued until the rule of 1838.' 
 
 ' Record, p. 2706. 
 
 - First session Twenty-second Congress, Journal, pp. 859, 860; Debates, p. 3783. 
 
 ^ Second session Twenty-fifth Congress, Journal, p. 704; Globe, p. 281. 
 
 * Second session Forty-sixth Congress, Record, p. 205. 
 
 * Second session Twenty-fifth Congress, Globe, pp. 278, 281. 
 
 ^ On April 30, 1802 (first session Seventh Congress, Journal, p. 229; Annals, p. 1253), the House 
 requested the Postmaster-General to establish a post-office at or near the Capitol. 
 
 ' Constitution, Manual, Rules, edition of 1859. Second session Thirteenth Congress, Journal, p. 398; 
 third session Twenty-seventh Congress, Journal, p. 738. 
 
 * On April 4, 1838 (second session Twenty-fifth Congress, Journal, p. 703; Globe, pp. 278, 281), 
 the House agreed to a series of resolutions reported from the Committee on Accounts. One of these 
 resolutions related to the conduct of the post-office of the House, as follows: 
 
 " 10. Resolved, That the Doorkeeper shall hire, at the lowest price for which it can be had, a suitable 
 number of horses for the transportation and distribution of the mail of the House to and from the post- 
 office, and to the lodgings of the Members, and for such other necessary business as may be from time to 
 time required; and he shall superintend the faithful performance of the duties of the messengers 
 employed in this service, and shall report to the Clerk of the House a statement of the persons employed, 
 and the terms of the contract, which shall be reported to the Committee of .\ccounts; and the Door- 
 keeper, or other officer of the House, shall not be directly or indirectly interested in any such contract 
 or undertaking."
 
 152 
 
 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 §271 
 
 271. The Postmaster accounts for the Government property in his 
 possession. — The statutes make it the duty of the Postmaster to make out a full 
 and complete account of all the property of the Government in his possession on the 
 first day of each regular session and at the expiration of his term of service.* 
 
 273. The Chaplain opens each day's sitting with prayer. 
 
 Present form and history of Rule VII. 
 
 Rule VII provides: 
 
 The Chaplain shall attend at the commencement of each day's sitting of the House and open the 
 same with prayer.^ 
 
 This rule dates from the revision of 1S80,' although there had been a Chaplain 
 from the very first years of Congress, and before in the Continental Congress also.^ 
 
 273. Although in earlier years the Chaplain was not strictly an oflB^- 
 cer of the House, his election was held to constitute a question of privi- 
 lege. — On March 5, 1860,^ Mr. John S. Millson, of Virginia, having proposed to 
 submit, as a question of privilege, the following resolution: 
 
 Resolved, That the House will proceed to-morrow, at 1 o'clock p. m., to elect a Chaplain, who shall 
 officiate, during the present Congress, alternately with the Chaplain already elected by the Senate. 
 
 Mr. George S. Houston, of Alabama, made the point of order that the resolution 
 did not present a question of privilege, as the Chaplain was not an officer of the 
 House, the Thirty-fifth Congress having been organized without one, and that 
 neither the law nor the Constitution required the election of such an officer. 
 
 The Speaker," in rendering his decision, said that he had looked into the prece- 
 dents, and found that they were in favor of the question being considered pri^^leged. 
 Therefore he overruled the point of order. 
 
 Mr. Houston having appealed, the appeal was laid on the table.' 
 
 274. The practice of electing a Chaplain was suspended during the 
 Thirty-fifth Congress. — On December 10, 1857,^ after a parliamentary struggle 
 of considerable intensit}', the following preamble and resolutions, submitted by Mr. 
 James F. Dowdell, of Alabama, were agreed to: 
 
 ^Vhereas the people of these United States, from their earliest history to the present time, have 
 been led by the hand of a kind Providence and are indebted for the countless blessings of the past and 
 the present and dependent for continued prosperity in the future upon Almighty God; and whereas the 
 great vital and conservative element in our system is the belief of our people in the pure doctrines and 
 divine truths of the Gospel of Jesus Christ, it eminently becomes the representatives of a people so 
 highly favored to acknowledge in the most public manner their reverence for God: Therefore, 
 
 Be it resolved, That the daily sessions of this body be opened with prayer. 
 
 ' Revised Statutes, sec. 72. 
 
 ^ The Chaplain sometimes invites another clergyman to officiate; sometimes one from another 
 country. (Second session Fifty-fifth Congress, Record, p. 9.) 
 
 ' Second session Forty-sixth Congress, Record, pp. 199, 205. 
 
 * Journal of Continental Congress, September 6, 1774. 
 
 ' First session Thirty-sixth Congress, Journal, pp. 442, 443; Globe, p. 992. 
 ^ William Pennington, of New Jersey, Speaker. 
 
 ^On May 26, 1876 (first session Forty-fourth Congress, Journal, p, 1521), a resolution providing 
 for the election of a Doorkeeper was offered and received as a question of privilege. 
 
 * First session Thirty-fifth Congress, Journal, p. 58; Globe, pp. 25, 26.
 
 § 275 THE OFFICERS OF THE HOUSE AND THEIE T:LECTI0N. 153 
 
 Resolved, That the ministers of the Gospel in this city are hereby requested to attend and alternately 
 perform this solemn duty.' 
 
 275. The Chaplain was not originally an officer of the House; but 
 has been such for many years. — December 4, 1817, the House concurred in 
 Senate resolution for appointing two chaplains of Congress, one by each House, 
 who should interchange weekly. This was in accordance with the old custom.^ 
 
 276. On December 10, 1845.^ a question was raised as to the practice which 
 had prevailed for many years of the House and Senate by concurrent action pro- 
 viding for the election of two different chaplains of two different denominations 
 to officiate, one over the Senate and the other over the House. The usual resolu- 
 tion was agreed to, however. 
 
 277. On December 6, 1853,* a change was made in the practice of electing 
 chaplains for a single session, and the House sent to the Senate a concurrent 
 resolution providing for their election for the Congress. The nature of the office 
 was not changed other\vise, the practice of authorizing two chaplains, of different 
 denominations, one to be elected by the House and the other by the Senate, con- 
 tinuing. This authorization was by a concurrent resolution. 
 
 Resolved {the Senate concurring), That two chaplains be elected, one by the Senate and the other 
 by the House of Representatives; and that they officiate alternately during the present Congress. 
 
 278. On February 5, 1856.^ in accordance with the custom of Congress from 
 very early times, the Senate passed the usual concurrent resolution providing 
 for two chaplains of different denominations, one to be elected by each House. 
 The House, which had not completed its organization, did not act on this resolution 
 at this time; but on February 21 it elected a Chaplain of its own for the session. 
 On April 24 the concurrent resolution of the Senate was laid on the table. 
 
 279. On December 22. 18.56," the House proceeded to tlie election of a Chap- 
 lain on its own account without reference to the usual concurrent resolution from 
 the Senate. 
 
 280. At first the Chaplain did not take the oath prescribed for the 
 officers of the House. — On July 5, 1861,' the House elected its Chaplain with- 
 out reference to the Senate, but the Chaplain evidently did not take the oath 
 taken by the regularly constituted officers of the House. 
 
 ' In this Congress a considerable number of remonstrances had been received from citizens who 
 objected to the employment of chaplains by the Government, either in the Army, the 'Sa.vy, or Congress, 
 on the ground that such employment conflicted with the spirit of the Constitution and tended to promote 
 a union of church and state. The debate indicates that this method, while a departure from the usage 
 of the House from the First Congress, had probably been suggested by the way in which the Washington 
 clergy had officiated during the prolonged struggle over the organization of the previous House. In 
 1854 (Report No. 124, first session, Thirty-third Congress), a committee of the House examined generally 
 the standing of chaplains in Government positions. 
 
 - First session Fifteenth Congress, Annals, p. 405. 
 
 ^ First session Twenty-ninth Congress, Globe, pp. 40, 41. 
 
 * First session Thirty-third Congress, Journal, p. 40; Globe, pp. 8, 16, 18. 
 
 * First session Thirty-fourth Congress, Journal, pp. 458, 500, 582, 886; Globe, p. 410. 
 ^ Third session Thirty-fourth Congress, Journal, p. 143; Globe, pp. 177, 178. 
 
 ' First session Thirty-seventh Congress, Journal, p. 22; Globe, p. 12.
 
 154 PRECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 281 
 
 281. On Decembei- 17, 184G/ after the election of a Chaplain on the part of 
 the House, Mr. John Pettit, of Indiana, moved that the oath to support the Consti- 
 tution of the United States be administered to the Chaplain as to all other officers 
 of the House. This motion was decided in the negative. 
 
 282. On December 15, 1863,- the Chaplain appears to have been sworn for 
 the first time. He then took the new "test oath," so called, provided for by the 
 act of July 2, 1862. 
 
 283. The statutes provide for the defense of any person against 
 whom an action is brought for acts done while an officer of either House 
 in the discharge of his duty. — In cases of action brought against any per- 
 son for acts done by him while an officer of either House in the discharge of his 
 official duty the district attorney for the district within which the action is brought 
 shall enter appearance, and the defense shall be conducted under the direction 
 of the Attorney-General.^ 
 
 ' Second session Twenty-ninth Congress, Journal, p. 66; Globe, p. 53. 
 ^ First session Thirty-eighth Congress, Journal, p. 39. 
 ' 18 Stat. L., p. 401.
 
 Chapter VII* 
 
 REMOVAL OF OFFICERS OF THE HOUSE. 
 
 1. A proposition to remove an officer a question of privilege. Sections 284-285.' 
 
 2. Instances of removal, arraignment, and investigation. Sections 286-296. 
 
 284. A proposition to remove an officer of the House for miscon- 
 duct is a question of privilege. — On August 3, 1854,- Mr. Theodore G. Hunt, 
 of Louisiana, submitted, as a question of privilege, the following resolution: 
 
 Resolved, That John W. Forney, the Clerk of this House, by directing and causing to be made the 
 alteration of the House bill No. 342, entitled "An act to aid the construction of a railroad to the Terri- 
 torj- of Minnesota," and mentioned in the report of the special committee of this House, has falsified a 
 record of this House in violation of the parliamentary law and of his sworn duty, and that the said 
 J. W. Forney, Clerk of the House of Representatives, should be, and is hereby, removed from the 
 office of Clerk of this House. 
 
 Mr. David T. Disney, of Ohio, made the point of order that this resolution was 
 not privileged. 
 
 The Speaker ^ said : 
 
 The Chair overrules the question of order which has been raised by the gentleman from Ohio. In 
 the opinion of the Chair the question of the gentleman from Louisiana is a question of privilege. 
 
 The question being taken on the resolution, it was disagreed to — yeas, 18; 
 nays, 1.54. 
 
 285. On April 18, 1850,* Mr. Albert G. Brown, of Mississippi, presented this 
 resolution : 
 
 Resolved, That Ilobert E. Homer, acting Doorkeeper of the House of Representatives, be, and he 
 is hereby, discharged. 
 
 The Speaker ' decided that this resolution presented the precise question which 
 was decided by the House on a former occasion not to be a privileged question, or a 
 question of privilege; and, in conformity with that decision, he ruled it out of order. 
 
 * See Volume VI, Chapter CLIV. 
 
 ' Charges against officers of the House are questions of privilege. (Sees. 2644-2047 of Vol. III.) 
 
 2 First session Thirty-third Congress, Journal, pp. 1275, 1276; Globe, pp. 2101-2103. 
 
 3 Linn Boyd, of Kentucky, Speaker. 
 
 * First session Thirty-first Congress, Journal p. 806: Globe, p. 765, 766. 
 ' Howell Cobb, of Georgia, Speaker. 
 
 155
 
 156 PRECEDENTS OF THE HOUSE OF KEPBESENTATIVES. § 286 
 
 Mr. Brown having appealed, Mr. Orin Fowler, of Massachusetts, moved to lay 
 the appeal on the table. 
 
 On this motion there were yeas 80, nays 85. So the House declined to lay the 
 appeal on the table. 
 
 The appeal being open to debate, Mr. Robert Toombs, of Georgia, commented 
 on the fact that the House, by declining to lay the appeal on the table, had indicated 
 a purpose to overrule the Chair. But at the conclusion of Mr. Toombs's remarks 
 Mr. Brown withdrew the appeal and the resolution in order to present the subject 
 to the House in a different form. 
 
 286. It being alleged that the Clerk was guilty of oiflcial misconduct, 
 a resolution removing him from oflB.ce was presented and entertained. — 
 On January 21, 1815,' Mr. James Clarke, of Kentucky, offered this resolution: 
 
 Resolved, That Patrick Magruder, Clerk to the House of Representatives, be removed from office; 
 that this House will, on Monday next, proceed to the election of a Clerk. 
 
 On January 23 the resolution was considered, the objections to the Clerk relat- 
 ing to liis alleged neglect of proper administration of the contingent fimd at the 
 time of the destruction of the Capitol. 
 
 On a motion to postpone the further consideration of the resolution one week 
 there were ayes 71, noes 71, whereupon the Speaker voted Anth the ayes. 
 
 On January 28, the Clerk resigned. 
 
 287. The House by resolution dismissed its Clerk, who had been found 
 guilty of misappropriation of public funds. 
 
 The House has requested the executive authority to prosecute one of 
 the oflacers of the House. 
 
 For misappropriation of funds the House arrested its Clerk and 
 arraigned him at the bar. 
 
 The Clerk being arraigned to answer charges, leave was given him to 
 address the House. 
 
 The Clerk being arraigned, and addressing the House in his defense, 
 the Journal merely records the fact. 
 
 Pending examina,tion of the Clerk on a charge of misappropriation 
 of funds, he was suspended from the exercise of his functions. 
 
 The Clerk being incapacitated, the House authorized the Chief 
 Assistant Clerk to attest a warrant and exercise the other functions of the 
 Clerk. 
 
 The Speaker has authority to issue a warrant of arrest only by order 
 of the House. 
 
 On Januaiy 17, 1845,^ Mr. Wilham Taylor, of Virginia, from the Committee on 
 Accounts, made a report, showing a misappropriation of the fimds of the House by 
 the Clerk, and recommending the following: 
 
 Resolved, That Caleb J. McNulty be, and he is hereby, dismissed from the office of Clerk of tliis 
 House. 
 
 ' Third session Thirteenth Congress, Journal, pp. 682, 684 (Gale.s and Seaton ed.) ; annals, pp. 1085, 
 1100. 
 
 2 Second session Twenty-eighth Congress, Journal, pp. 22.3-227, 230-233; Globe, pp. 147-149. 
 152-154.
 
 § 287 REMOVAL OF OFFICERS OF THE HOUSE. 157 
 
 Resolved, That the Secretary of the Treasurj- be directed to institute forthwith the necessary legal 
 proceedings to ascertain and secure the balance of the public moneys due from Caleb J. McNulty, as 
 Clerk of the House of Representatives. 
 
 Resolved, That the President of the United States be requested to cause criminal prosecutions to 
 be commenced against Caleb J. McNulty, late Clerk of this House, for an embezzlement of the public 
 money, and all persons advising or knowingly and willingly participating in such embezzlement, 
 according to the provisions of the act of Congress approved August 13, 1S41. 
 
 It was objected that the action proposed by the committee was too summary, 
 and Mr. Cave Johnson, of Tennessee, offered this resolution: 
 
 Resolved, That the Sergeant-at-Arms be directed forthwith to arrest Caleb 3. McNulty, Clerk of 
 this House, and Ijring him before the House. 
 
 Mr. John Quincy Adams, of Massachusetts, expressing doubts as to the power 
 of the House to arrest for a criminal offense, proposed an amendment to provide 
 for summoning the Clerk before the House. 
 
 After debate this amendment was disagreed to, and the resolution was agreed 
 to as offered by Mr. Johnson. 
 
 Mr. Adams then made the point that a warrant was necessary-, and the Speaker ' 
 said he considered that the Chair had no authority to issue the warrant except by the 
 order of the House. The point was also made that the ndes required a warrant to 
 be attested by the Clerk. Accordingl}', bj- suspension of the ndes, the follo\ving 
 was adopted: 
 
 Resolved, That the Speaker of this House issue his warrant for the arrest of Caleb J. McNulty, in 
 accordance with the resolution of this day; and that the Chief Assistant Clerk attest the warrant under 
 the seal of this House. 
 
 The Sergeant-at-Arms was then furnished with the Speaker's warrant in 
 accordance wth the foregoing resolution and proceeded to execute the order of 
 the House. 
 
 On the same day the Sergeant-at-Arms came in -with Caleb J. McNulty, Clerk 
 of the House of Representatives, in his custody, when the House proceeded to the 
 consideration of the report and resolutions from the Committee on Accounts. 
 
 On motion of Mr. George C. Dromgoole, of Virginia, leave was given Caleb J. 
 McNulty to address the House in his own defense. 
 
 The Speaker addressed Mr. McNulty as follows: 
 
 By the order of the House 1 am directed to state to you that you are required to appear before the 
 House on sundry charges contained in a report made by the Committee on Accounts this morning, 
 and the House will now hear what you have to say in defense against these charges. In order that you 
 may be correctly informed of the charges reported by the conunittee, they wiU now be read to you. 
 
 The report and resolutions were read accordingly. 
 
 Mr. ^IcNulty then addressed the House,' denying that he had misappropriated 
 any funds of the House as charged in the report. 
 
 Mr. Cave Johnson then proposed the follo\\ing: 
 
 Resolved, That the report of the Committee on Accounts, in regard to Caleb J. McNulty, Clerk of 
 the House, be postponed until to-morrow, at 2 o'clock p. m.; and that the Sergeant-at-Arms hold said 
 C. J. McNulty in custody until the further order of this House. 
 
 ' John W. Jones, of Virginia, Speaker. 
 
 ^ The Journal gives only the statement of this fact and does not give his defense.
 
 158 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 288 
 
 Mr. David L. Seymour, of New York, moved that the resolution be amended 
 by striking out all thereof which directed the Sergeant-at-Arms to hold Mr. McNulty 
 in custody. 
 
 This amendment was agreed to, yeas 99, nays 76. 
 
 Mr. Armistead Burt, of South Carolina, then moved the following amendment: 
 
 And that in the meantime the exercise of his functions as Clerk of this House be, and they hereby 
 are, suspended, and that they be performed by B. B. French, the Chief Clerk. 
 
 This amendment having been acquiesced in by the House, the resolution as 
 amended was agreed to. 
 
 On January 18 the consideration of the report of the Committee on Accounts 
 was considered, and the three resolutions were severally agreed to, by the following 
 votes: 196 to 0; affirmatively \vithout call of the roll; 173 to 4. 
 
 Then, the rules requiring viva voce election being suspended, the following 
 resolution was agreed to: 
 
 Resolved, That Benjamin B. French be, and he is hereby, appointed Clerk of this House. 
 
 Mr. French thereupon appeared, and the Speaker administered to him the 
 oaths of his office. 
 
 288. Because of the misconduct of the incumbent, the office of Door- 
 keeper has been declared vacant, and the duties have devolved upon the 
 Sergeant-at-Arms. 
 
 A matter affecting the character of an officer of the House involves a 
 question of privilege. 
 
 On May 22, 1876,^ Mr. Samuel S. Cox, of New York, from the Committee on 
 Rules, to which was referred the resolutions of the House of the 13th and 16th 
 instant, m relation to the Doorkeeper and the consolidation of the offices of Sergeant- 
 at-Arms and Doorkeeper, submitted a report thereon in writing, accompanied by 
 the following resolutions: 
 
 1. That the office t)f Doorkeeper be vacated by its present incumbent. 
 
 2. That the duties of Doorkeeper be, and the same are hereby, devolved upon the Sergeant-at- 
 Arms until otherwise ordered. 
 
 The resolutions were severally agreed to.^ 
 
 289. On February 1, 1878,'' Mr. John H. Baker, of Indiana, rising to a ques- 
 tion of privilege, made certain charges against J. W. Polk, the Doorkeeper of the 
 House, and moved a preamble reciting the charges, which were of corruption in 
 office, and the following resolution : 
 
 Resolved, That the Committee on Reform in the Civil Service be, and it is hereby, directed to 
 inquire into the several matters and things so as aforesaid alleged against said Doorkeeper, and to report 
 at any time to this House whether said Doorkeeper is guilty of any of said alleged acts; and the com- 
 mittee is authorized to send for persons and papers. 
 
 ' First session Forty-fourth Congress, Journal, p. 998; Record, pp. 3251-3253. 
 
 - This action was the result of a resolution presented to the House on May 13, as a question of 
 privilege, charges against the Doorkeeper having appeared in a newspaper. The Speaker pro tempore 
 [Mr. Cox] held that the resolution, affecting the character of an officer of the House, was a question of 
 privilege. (Journal, p. 948; Record, p. 3066.) 
 
 3 Second session Forty-fifth Congress, Journal, pp. 339, 358, 783, 792-796; Record, pp. 707, 744, 2209, 
 2285-2287.
 
 § 290 REMOVAL OF OFFICERS OF THE HOUSE. 159 
 
 On February 4 Mr. Charles C.Ellsworth, of Michigan, claiming the floor for a 
 question of privilege, wliich seems to have been admitted as such, presented the 
 statement of the Doorkeeper in reference to the charges, and the same was referred 
 to the committee having the matter in charge. 
 
 On April 2 the House proceeded to consider the report of the committee, which 
 recommended the follownng: 
 
 Resolved, That the position of Doorkeeper of the House of Representatives be, and hereby is, 
 declared vacant; and 
 
 Further resolved, That until the appointment of a new Doorkeeper, the duties of the ofBce be, 
 and hereby are, devolved upon the Sergeant-at-Arms. 
 
 On April 4 the first resolution was agreed to — yeas 139, nays 80. Then the 
 second resolution was agreed to — yeas 122, nays 114. 
 
 290. A report from the Committee on Accounts having impeached the 
 integrity of the Doorkeeper, the House removed him. 
 
 A motion to proceed to the election of an officer is privileged; but it 
 is not so with a resolution naming a certain person to fill the office. 
 
 On May 17, 18.58,' the House considered a report from the Committee on 
 Accotmts, charging the Doorkeeper of the House with irregularities in his office, and 
 offering to the House the following resolution: 
 
 Resolved, That R. B. Hackney, the Doorkeeper of the present House of Representatives be, and 
 he is hereby, dismissed forthwith from that office. 
 
 After debate, this resolution was agreed to — yeas 141, nays 34. 
 Mr. John B. Haskins, of New York, then proposed, as a r[uestion of privilege, 
 the following resolution : 
 
 Resolved, That Darius Truesdell, of New York, be, and he is hereby, appointed Doorkeeper of 
 the House of Representatives, for the Thirty-fifth Congress. 
 
 Mr. Thomas S. Babcock, of Virginia, made the point of order that it was not a 
 question of privilege to move to appoint a particular person Doorkeeper, but that 
 it would be in order to move to proceed to the election of Doorkeeper. 
 
 The Speaker ^ sustained the point of order. 
 
 The House thereupon voted that on the succeeding day it would proceed to the 
 election of a Doorkeeper, and that until an election should be effected the Sergeant- 
 at-Arms should take charge of the property in the office of the Doorkeeper. 
 
 291. For permitting a Member under arrest to escape, the Door- 
 keeper was arraigned at the bar of the House. 
 
 An officer of the House being arraigned for neglect of duty, it was 
 voted that he might answer orally. 
 
 The Journal recorded the substance of the oral answer of an officer 
 of the House arraigned at the bar for neglect of duty. 
 
 On June 6, 1860,^ during proceedings to obtain the attendance of absent Mem- 
 bers, under a call of the House, the arrest of absent Members was ordered, and the 
 doors were closed. 
 
 ' First session Thirty-fifth Congress, Journal, pp. 833, 835; Globe, pp. 2187, 2195. 
 
 - James L. Orr, of South Carolina, Speaker. 
 
 ' First session Thirty-sixth Congress, Journal, p. 1025; Globe, p. 2710.
 
 160 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 292 
 
 Pending these proceedings, Mr. John Hickman, of Pennsylvania, offered the 
 following resolution: 
 
 Resolved, That the Doorkeeper bo called before the bar of the House to answer for the escape of 
 Mr. Stanton, of Ohio, from the floor of the House after he was brought before the House underits warrant. 
 
 Mr. Hickman having stated that Mr. Stanton had escaped, the resolution was 
 agreed to. 
 
 The Doorkeeper thereupon appeared at the bar of the House, when a question 
 was raised by Mr. Horace Maynard, of Tennessee, as to the mode of response. He 
 held that under immemorial custom the Doorkeeper had no right to address the 
 House, but must present his answer in writing. He was brought before the House 
 in contempt of the House, like a witness. 
 
 The question was put to the House, and the House voted that the Doorkeeper 
 should answer orally. The Journal has this entry: 
 
 The Doorkeeper appeared at the bar of the House, and the question having been submitted to the 
 House, "Will the House receive a verbal answer?" and decided in the affirmative, he stated "that Mr. 
 Stanton had passed out at one of the side doors, which was in charge of one of the messengers, in company 
 with certain Members who had temporary leave of absence, and that he had censured the messenger for 
 permitting Mr. Stanton to pass without leave." 
 
 292. Charges against the Postmaster being sustained, his ofl&ce was 
 declared vacant and his assistant was directed to perform the duties 
 temporarily. 
 
 The resignation of the Postmaster was laid before the House while a 
 resolution of dismissal was pending, and was disregarded. 
 
 On September 25, 1890,' the House agreed to a resolution directing the Com- 
 mittee on Accounts to investigate the conduct of the Postmaster of the House. 
 
 On October 1 that committee reported at length, recommending the adoption 
 of the following resolution : 
 
 Resolved, That the office of Postmaster of the House of Kepresentatives be, and the same is hereby, 
 declared vacant; and that the Assistant Postmaster of the House be, and he is hereby, directed to 
 perform the duties of Postmaster until a Postmaster shall be elected and duly qualified. 
 
 This resolution was agreed to.^ 
 
 The report of the committee, but not the testimony, appears in full in the 
 Journal, apparently without any special order. 
 
 293. The late Sergeant-at-Arms having announced a deficit in his 
 office, the House authorized investigation by a select committee. — On 
 December 9, 1889,'' the Speaker laid before the House a letter from J. P. Leedom, 
 late Sergeant-at-Arms, announcing that the late cashier of the office had departed 
 without settling his accounts, and that there was a deficit in the cash. 
 
 ' First session Fifty-first Congress, Journal, pp. 1083, 1118; Record, p. 10786. 
 
 - Shortly before the action of the House on this resolution the resignation of the Postmaster was laid 
 before the House and read. No action was taken on it. (Record, p. 10785.) A Postmaster was elected 
 December 10, 1890 (second session Fifty-first Congress, Journal, p. 42), the election being effected by the 
 adoption of a resolution, which was presented as privileged. 
 
 'First session Fifty-first Congress, Journal, p. 14; Record, p. 115.
 
 § 294: REMOVAL OF OFFICERS OF THE HOUSE. 161 
 
 Thereupon the House by resolution directed the appointment of a select com- 
 mittee to examine the accounts of the office. 
 
 294. Certain charges being made against an officer of the House, he 
 petitioned for an investigation. — On August 2G, 1789/ a petition was pre- 
 sented from Joseph Wlieaton, Sergeant-at-Arms of the House, praying that an 
 inquiry might be made into certain charges exhibited against him in an anonymous 
 letter addressed to the Speaker. 
 
 The petition was ordered to lie on the table.^ 
 
 295. A newspaper charge against the Clerk was, at the request of that 
 officer, investigated by the House. 
 
 The report of an investigating committee exonerating the Clerk was 
 printed in full in the Journal. 
 
 On May 18, 1876,^ the Clerk of the House asked the House by a letter laid before 
 the House by the Speaker to order an investigation into a charge made by a news- 
 paper that he had corruptly used his power in appointing subordinates in his depart- 
 ment. The House ordered the investigation. The report^ exonerating the Clerk 
 was submitted on Jime 27 and was printed in full in the Journal, apparently without 
 special order of the House. 
 
 296. A candidate for the office of Secretary of the Senate was allowed 
 to address the Senate in explanation of certain charges. 
 
 On December 19, 1831,' as the Senate was about to reelect its Secretary, Walter 
 Lowrie, a charge was made that Mr. Lowrie had betrayed executive secrets of the 
 Senate. Thereupon, by unanimous consent, Mr. Lowrie was permitted to address 
 the Senate in his own defense. 
 
 ' First session First Congress, Journal, p. 90 (Gales and Seaton ed.). 
 
 -On March 31, 1876, the House, on application of the Chief Clerk, ordered an investigation into 
 certain charges against that official. These charges had been made by a Member on the floor. (First 
 session Forty-fourth Congress, Journal, p. 714; Record, p. 2136.) 
 
 ^ First session Forty-fourth Congress, Journal, pp. 975, 1108. 
 
 ^ Journal, p. 1168. 
 
 * First session Twenty-second Congress, Debates, pp. 8. 9. 
 
 5994— VOL 1—07 11
 
 Chapter VIIi: 
 
 THE ELECTORS AND APPORTIONMENT. 
 
 1. Constitution and laws relating^ to electors. Sections 297-300. ' 
 
 2. Constitution and laws relating to apportionment. Sections 301-304. 
 
 3. Bills relating to census and apportionment, privileged. Sections 305-308. 
 
 4. Failure of States to apportion. Sections 309, 310. ' 
 
 6. Filling of vacancies in rearranged districts. Sections 311, 312. 
 
 6. Right of the State to change districts. Section 313. 
 
 7. Claims of States to representation in excess of apportionment. Sections 314-319. 
 
 297. The electors choosing Members of the House must have the 
 qualifications requisite for electors of the most numerous branch of the 
 State legislature. 
 
 The House is composed of Members chosen every second year by the 
 people of the several States. 
 
 Section 2 of Article I of the Constitution provides : 
 
 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. 
 
 298. All persons born or naturalized in the United States, and sub- 
 ject to the jurisdiction thereof, are citizens of the United States and of 
 the State wherein they reside. — Section 1 of Article XIV of the Constitution 
 provides : 
 
 All persons born or naturalized in the United States, and subject to the jurisdiction thereof, 
 are citizens of the United States and of the State wherein they reside. No State shall make or enforce 
 any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any 
 State deprive any person of life, liberty, or property without due process of law; nor deny to any person 
 within its jurisdiction the equal protection of the laws. 
 
 * See Volume VI, Chapter CLV. 
 
 ' Rare instances of rejection of votes of persons qualified under the suffrage laws of the State. (Sec. 
 451 of this volume and 86.5 of Vol. II.) Refusal of the House to follow this precedent. (Sec. 879 of 
 Vol. II.) 
 
 2 As to techincal defects in establishment of a district. (Sec. 911 of Vol. II.) 
 162
 
 § 299 THE ELECTORS AND APPORTIONMENT. 163 
 
 299. The rights of citizens of the United States to vote shall not be 
 denied or abridged on account of race, color, or previous condition of 
 servitude. — The fifteenth amendment to the Constitution provides : 
 
 Section 1. The right of citizens of the United States to vote shall not be denied or abridged by 
 the United States or by any State on account of race, color, or previous condition of servitude. 
 Section 2. The Congress shall have power to enforce this article by appropriate legislation.' 
 
 300. The right of soldiers, sailors, and marines to exercise the privi- 
 lege of suffrage is not abridged by Federal law. — Section 5532 of the 
 Revised Statutes, dating from February 25, 1865, provides: 
 
 Every person convicted of any of the offenses specified in the five preceding sections [of the Revised 
 Statutes] shall, in addition to the punishments therein severally prescribed, be disqualified from hold- 
 ing any office of honor, profit, or trust under the United States; but nothing in those sections shall be 
 construed to prevent any ofiicer, soldier, sailor, or marine fi'om exercising the right of suffrage in any 
 election district to which he may belong, if otherwise qualified according to the laws of the State in 
 which he offers to vote. 
 
 301. The Constitution provides that Representatives shall be appor- 
 tioned among the several States according to their respective numbers, 
 excluding Indians not taxed. 
 
 The reduction of its representation is the penalty for a denial of the 
 right to vote by a State. 
 
 No penalty is fixed for a denial of the right of suffrage because of 
 rebellion or other crimes. 
 
 The enumeration to fix the basis of representation is to be made once 
 in every ten years. 
 
 The number of Representatives may not exceed one for every thirty 
 thousand inhabitants, but each State shall have at least one Represent- 
 ative. 
 
 ' On February 24, 1881 (third session Forty-sixth Congress, Record, pp. 2020-2023), in the House 
 Nathaniel J. Hammond, of Georgia, discussed suffrage with reference to the fourteenth and fifteenth 
 amendments, and with references to the decisions in the cases of Minor v. Happeraett (21 Wallace, R.) 
 and United States v. Reese (92 U. S., 214) and Cole's case. 
 
 The subjects of the thirteenth, fourteenth, and fifteenth amendments to the Constitution were 
 discussed elaborately in the Senate in 1879 on a resolution introduced by Mr. George F. Edmunds, of 
 Vermont. (Third session Forty-fifth Congress.) 
 
 On January 30, 1879, Mr. Morgan, of Alabama, discussed with Mr. Edmunds the question of citi- 
 zenship under the Constitution. (Record, p. 847.) Also question of suffrage (Record, pp. 847-957) 
 and the power of Congress over voting at State elections (p. 848) and to punish in cases where right 
 to vote is denied on account of race, color, etc. (p. 885); on Federal election laws to protect suffrage 
 and the respect in which they had failed (pp. 958, 959) through rulings of the Supreme Court; as to 
 qualifications of voters and fixing the times, places, and manner (pp. 960, 961, 997); times, places, 
 and manner (pp. 997, 998, 999); Messrs. Edmunds and Wliyte discussed the power of Congress to pro- 
 vide penalties for violation of laws as to time, place, and manner (p. 999). Mr. Whyte's history of 
 of Congress's interference as to time, place, and manner, beginning with 1842 (p. 999). Discussion 
 by Messrs. Edmunds and Whyte as to the constitutionality of the act of July 14, 1870, by which super- 
 visors of election were appointed (p. 1000). Resolutions of Messrs. Edmunds and Morgan as to voters 
 of the States and voters of the United States (pp. 342, 567). 
 
 The Supreme Court has also discussed the fifteenth amendment in several decisions.
 
 164 
 
 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 §301 
 
 The first apportionment was fixed by the Constitution. 
 References to discussions of questions relating to apportionment. 
 The distribution of representation under the several apportionments. 
 Section 2 of Article XIV of the Constitution provides — 
 
 Representatives shall be apportioned among the several States according to their respective num- 
 bers,' counting the whole number of persons^ in each State, excluding Indians not taxed. ^ But when 
 the right to vote at any election for the choice of electors for President and Vice-President of the United 
 States, Representatives in Congress, the executive and judicial officers of a State, or the members of 
 the legislature thereof, is denied to any of the male inhaljitants of such State, being twenty-one years 
 of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, 
 or other crime, the basis of representation therein shall be reduced in the proportion which the number 
 of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such 
 State. 
 
 ' The various apportionments, including the first one made in the Constitution itself, have been as 
 
 follows: 
 
 States. 
 
 1787. 
 
 1790. 
 
 1800. 
 
 1810. 
 
 1820. 
 
 1830. 
 
 1840. 
 
 1850. 
 
 1860. 
 
 1870. 
 
 1880. 
 
 1890. 
 
 1900. 
 
 Maine 
 
 
 
 
 
 7 
 6 
 
 13 
 2 
 6 
 5 
 
 34 
 6 
 
 26 
 1 
 9 
 
 22 
 
 13 
 9 
 7 
 
 12 
 9 
 
 14 
 3 
 3 
 1 
 1 
 2 
 1 
 
 8 
 5 
 12 
 
 2 
 
 6 
 5 
 40 
 fi 
 28 
 1 
 8 
 21 
 13 
 9 
 9 
 13 
 13 
 19 
 3 
 7 
 2 
 3 
 5 
 2 
 
 7 
 4 
 
 10 
 2 
 4 
 4 
 
 34 
 5 
 
 24 
 1 
 6 
 
 15 
 9 
 7 
 8 
 
 10 
 
 11 
 
 21 
 4 
 
 10 
 4 
 7 
 7 
 5 
 1 
 3 
 
 6 
 3 
 
 11 
 2 
 4 
 3 
 
 33 
 5 
 
 25 
 1 
 6 
 
 13 
 8 
 6 
 8 
 
 10 
 
 10 
 
 21 
 
 iJ 
 
 5 
 9 
 7 
 7 
 2 
 4 
 1 
 2 
 2 
 3 
 2 
 
 5 
 2 
 
 10 
 2 
 4 
 3 
 
 31 
 5 
 
 24 
 1 
 5 
 
 11 
 7 
 4 
 7 
 9 
 8 
 
 19 
 5 
 
 11 
 5 
 
 14 
 fi 
 9 
 3 
 6 
 1 
 K 
 4 
 6 
 3 
 2 
 
 1 
 1 
 3 
 1 
 1 
 
 5 
 3 
 
 11 
 2 
 4 
 3 
 
 .33 
 7 
 
 27 
 1 
 6 
 9 
 8 
 5 
 9 
 
 10 
 
 10 
 
 20 
 6 
 
 13 
 6 
 
 19 
 8 
 
 13 
 4 
 9 
 2 
 9 
 6 
 8 
 4 
 3 
 1 
 3 
 3 
 1 
 1 
 1 
 
 4 
 2 
 
 12 
 2 
 
 \ 
 34 
 
 7 
 28 
 1 
 6 
 10 
 9 
 7 
 10 
 11 
 10 
 21 
 6 
 
 13 
 7 
 
 20 
 
 8 
 
 14 
 
 6 
 
 U 
 
 2 
 
 11 
 
 11 
 
 9 
 
 6 
 
 5 
 
 1 
 
 7 
 
 4 
 
 1 
 
 3 
 
 1 
 
 4 
 
 2 
 
 13 
 
 2 
 
 5 
 
 2 
 
 34 
 
 8 
 
 30 
 
 1 
 
 6 
 
 10 
 
 9 
 
 7 
 
 11 
 
 11 
 
 10 
 
 21 
 
 6 
 
 IS 
 
 7 
 
 22 
 
 9 
 
 15 
 
 6 
 
 12 
 2 
 11 
 13 
 10 
 7 
 7 
 
 8 
 4 
 1 
 6 
 2 
 2 
 1 
 1 
 2 
 1 
 1 
 1 
 
 4 
 
 New Hampshire . . . .... 
 
 3 
 
 S 
 1 
 5 
 
 4 
 
 14 
 
 2 
 
 7 
 
 2 
 
 10 
 
 5 
 
 13 
 
 1 
 
 8 
 
 19 
 
 10 
 
 6 
 
 2 
 
 2 
 
 5 
 17 
 2 
 7 
 4 
 17 
 
 18 
 1 
 9 
 22 
 12 
 8 
 4 
 6 
 3 
 
 6 
 
 20 
 
 2 
 
 7 
 
 6 
 
 27 
 
 6 
 
 23 
 
 2 
 
 9 
 
 23 
 
 13 
 
 9 
 
 ti 
 
 10 
 
 fi 
 
 f) 
 
 2 
 
 Massachusetts 
 
 14 
 
 
 ■7 
 
 
 5 
 
 
 o 
 
 
 b 
 
 4 
 8 
 1 
 6 
 10 
 5 
 5 
 3 
 
 37 
 
 
 10 
 
 
 32 
 
 
 1 
 
 
 6 
 
 Virginia. 
 
 10 
 
 
 10 
 
 South Carolina . 
 
 7 
 
 Georgia 
 
 11 
 
 
 11 
 
 Tennessee 
 
 
 10 
 
 Ohio 
 
 
 
 21 
 
 
 
 
 ■ 
 
 7 
 
 
 
 
 
 
 15 
 
 
 
 
 
 
 8 
 
 
 
 
 
 
 25 
 
 
 
 
 
 
 9 
 
 
 
 
 
 
 16 
 
 
 
 
 
 
 
 Michigan 
 
 
 
 
 
 
 
 12 
 
 
 
 
 
 
 
 
 3 
 
 
 
 
 
 
 
 
 
 11 
 
 Texas 
 
 
 
 
 
 
 
 
 16 
 
 
 
 
 
 
 
 
 
 n 
 
 California 
 
 
 
 
 
 
 
 
 8 
 
 
 
 
 
 
 
 
 
 9 
 
 
 
 
 
 
 
 
 
 
 o 
 
 
 
 
 
 
 
 
 
 
 8 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 I 
 
 Neb raska 
 
 
 
 
 
 
 
 
 
 6 
 
 
 
 
 
 
 
 
 
 
 3 
 
 
 
 
 
 
 
 
 
 
 
 o 
 
 
 
 
 
 
 
 
 
 
 
 
 
 2 
 
 
 
 
 
 
 
 
 
 
 
 
 
 1 
 
 
 
 
 
 
 
 
 
 
 
 
 
 3 
 
 
 
 
 
 
 
 
 
 
 
 
 
 1 
 
 Wyoming . . . . . 
 
 
 
 
 
 
 
 
 
 
 
 
 1 
 
 U tah 
 
 
 
 
 
 
 
 
 
 
 
 1 
 
 
 
 
 
 
 
 
 
 
 
 
 5 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 C3 
 
 105 
 
 141 
 
 181 
 
 212 
 
 240 
 
 223 
 
 234 
 
 241 
 
 293 
 
 32.5 
 
 357 
 
 391 
 
 
 
 o Oklahoma has since been admitted with five Representatives. (34 Stat. L., p. 271.) 
 
 - The Constitution also provides for ascertaining this number of persons by a census every ten 
 years. The last census was taken in 1900.
 
 § 302 THE ELECTORS AND APPORTIONMENT. 165 
 
 302. The apportionment of Representatives to the several States 
 under the act of 1901. 
 
 From March 3, 1903, the membership of the House was fixed at 386. 
 
 The representation of a newly admitted State is in addition to the 
 total number of Representatives fixed by the act of 1901. 
 
 The act of January 16, 1901,' made the following provisions as to apportion- 
 ment: 
 
 That after the third day of March, nineteen hundred and three, the House of Representatives shall 
 be composed of three hundred and eighty-six members, to be apportioned among the several States as 
 follows: Alabama, nine; Arkansas, seven; California, eight: Colorado, three; Connecticut, five; Dela- 
 ware, one; Florida, three; Georgia, eleven; Idaho, one; Illinois, twenty-five; Indiana, thirteen; Iowa, 
 eleven; Kansas, eight; Kentucky, eleven; Louisiana, seven; Maine, four; Maryland, six; Massachu- 
 setts, fourteen; Michigan, twelve; Minnesota, nine; Mississippi, eight; Missouri, sixteen; Montana, 
 one; Nebraska, six; Nevada, one; New Hampshire, two; New Jersey, ten; New York, thirty-seven; 
 North Carolina, ten; North Dakota, two; Ohio, twenty-one; Oregon, two; Pennsylvania, thirty-two; 
 Rhode Island, two; South Carolina, seven; South Dakota, two; Tennessee, ten; Texas, sixteen; Utah, 
 one; Vermont, two; Virginia, ten; Washington, three; West Virginia, five; Wisconsin, eleven; and 
 Wyoming, one. 
 
 Sec. 2. That whenever a new State is admitted to the Union the Representative or Representa- 
 tives assigned to it shall be in addition to the number three hundred and eighty-six.^ 
 
 303. The apportionment act provides that Representatives shall be 
 elected in districts composed of contiguous and compact territory and 
 containing as nearly as practicable an equal number of inhabitants. 
 
 The districts in a State shall be equal to the number of its Represent- 
 atives, no one district electing more than one Representative. 
 
 The act of January 16, 1901,' in providing for the apportionment, has the 
 following: 
 
 Sec 3. That in each State entitled under this apportionment, the number to which such State may 
 be entitled in the Fifty-eighth and each subsequent Congress shall be elected by districts composed of 
 
 ^Section 2 of Article I of the Constitution provided originally for the apportionment, but a por- 
 tion of it has been superseded liy section 2 of Article XIV. Section 2 of Article I is as follows, with 
 the portion which has been superseded indicated by brackets: 
 
 [Representatives and direct taxes shall be apportioned among the several States which may be 
 included within this Union, according to their respective numbers, which shall be determined by 
 adding to the whole number of free persons, including those Ijound to service for a term of years, and 
 excluding Indians not taxed, three-fifths of all other persons.] The actual enumeration shall be made 
 within three years after the first meeting of the Congress of the United States, and within every subse- 
 quent term of ten years, in such manner as they shall by law direct. The number of Representatives 
 shall not exceed one for every thirty thousand, but each State shall have at least one Representative; 
 and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse 
 three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five. New- York 
 six, New Jersey four, Pennsylvania eight, Delaware one, Maiyland six, Virginia ten, North Carolina 
 five. South Carolina five, and Georgia three. 
 
 On May 3, 1832 ((irst session Twenty-second Congress, Report No. 463), the conferees made a report 
 of disagreement between the Hotise and Senate as to an apportionment bill, which reviewed at length 
 the proceedings as to prior apportionments. Later reports have also made reviews of this nature, 
 notably House Report No. 2130, second session Fifty-sixth Congress. 
 
 '31 Stat. L., pp. 733, 734. 
 
 ^ Thus, Oklahoma has been admitted by act of June 10, 1906, with five Members additional to 
 the number provided in this act. ,
 
 166 
 
 PKECEDENTS OF THE HOUSE OP REPRESENTATIVES. 
 
 §304 
 
 contiguous and compact territory and containing as nearly as practicable an equal number of inhabit- 
 ants. The said districts shall be equal to the number of the Representatives to which such State may 
 be entitled in Congress, no one district electing more than one Representative. 
 
 Provisions similar, but not identical, are found in previous apportionment acts. 
 
 304. The apportionment of 1901 provided for the election of Repre- 
 sentatives in old districts and at large until the respective States should 
 have rearranged the districts. — The act of January 16, 1901,' in providing for 
 the apportionment, has the following: 
 
 Sec 4. That in case of an increase in the number of Representatives which may be given to any 
 State under this apportionment such additional Representative or Representatives shall be elected 
 by the State at large, and the other Representatives by the districts now prescribed by law until the 
 legislature of such State, in the manner herein prescribed, shall rcdistrict such State; and if there be 
 no increase in the number of Representatives from a State the Representatives thereof shall be elected 
 from the districts now prescribed by law until such State be redistricted as herein prescribed by the 
 legislature of said State; and if the number hereby provided for shall in any State be less than it was 
 before the change hereby made, then the whole number to such State hereby provided for shall be 
 elected at large, unless the legislatures of said Slates have provided or shall otherwise provide before the 
 time fixed by law for the next election of Representatives therein. 
 
 Provisions similar, but not identical, are found in previous apportionment acts. 
 
 305. A legislative proposition, presented in obedience to a mandatory 
 provision of the Constitution, was held to involve a question of privi- 
 lege. — On January 3, 1901,- Mr. Marlin E. Olnistead, of Pennsylvania, presented, 
 as involving a question of privilege, the following resolution : 
 
 Whereas the continued enjoyment of full representation in this House by any State which has, for 
 reasons other than participation in rebellion or other crime, denied to any of the male inhabitants thereof 
 being 21 years of age and citizens of the United States the right to vote for Representatives in Congress, 
 Presidential electors, and other specified officers is in direct violation of the fourteenth amendment to 
 the Constitution of the United States, which declares that in such case ' ' the basis of representation therein 
 shall be reduced in the proportion which such male citizens bear to the whole number of male citizens 
 21 years of age in such State," and is an invasion of the rights and dignity of this House and of its 
 Members and an infringement upon the rights and privileges in this House of other States and their 
 Representatives; and 
 
 Whereas since the last apportionment the States of Mississippi, South Carolina, and Louisiana have, 
 by changes in the constitutions and statutes of said States, and for reasons other than participation in 
 rebellion or other crime, denied the right of suffrage to male inhabitants 21 years of age, citizens of the 
 United States, and such denial in each of said States extends to more than one-half of those who, prior 
 thereto, were entitled to vote, as appears from the following statistics, published in the Congressional 
 Directories of the Fifty-second and Fifty-sixth Congresses, viz: 
 
 In the seven districts of Mississippi the total vote cast for all Congressional candidates in 1890 was 
 62,652; in 1898, 27,045. In the seven districts of South Carolina the total vote in 1890 was 73,522, and 
 28,831 in 1898. In the six districts of Louisiana 74,.542 in 1890, and 33,161 in 1898. 
 
 One Member of the present House, representing ten counties in Mississippi, with a population in 
 1890 of 184,297, received only 2,068 votes. One Member of the present House, representing six counties 
 in South Carolina, with a population in 1890 of 158,851, received only 1,765 votes, and one Member rep- 
 resenting thirteen counties in Louisiana, with a population of 208,802, received only 2,494 votes; and 
 
 Whereas it is a matter of common rumor that other States have, for reasons other than those specified 
 in the Constitution of the United States, denied to some of their male inhabitants 21 years old and citizens 
 of the United States the right to vote for Members of Congress and Presidential electors, as well as executive 
 
 '31 Stat. L., pp. 733, 734. 
 
 'Second session Fifty-sixth Congress, Journal, pp. 80, 81; Record, pp. 
 
 520-.522.
 
 § 306 THE ELECTORS AND APPORTIONMENT. 167 
 
 and judicial officers of said States and members of the legislature thereof, and no reduction has been made 
 in the representation of any State in this House because of such denial; and 
 
 Whereas the President of the United States has, by message, recommended "that the Congress, at 
 its present session, apportion the representation among the several States as provided by the Constitu- 
 tion:" Therefore, 
 
 Resolved, Section 1. That the Committee on Census shall be, and is, authorized and directed, 
 either by full committee or such subcommittee or subcommittees as may be appointed by the chairman 
 thereof, to inquire, examine, and report in what States the right to vote at any election for the choice 
 of electors for President and Vice-President of the United States, Representatives in Congress, the execu- 
 tive and judicial officers of a State, or the members of the legislatures thereof is denied to any of the 
 male inhabitants of such States 21 years of age and citizens of the United States, or in any way abridged, 
 except for participation in rebellion or other crimes, and the proportion which the number of such male 
 citizens shall bear to the whole number of male citizens 21 years of age in each such State. 
 
 Mr. James D. Richardson, of Tennessee, made the point of order that the reso- 
 lution was not privileged. 
 
 After debate the Speaker' held as follows: 
 
 The matter seems to the Chair clearly settled by Article XFV, section 2, of the Constitution. 
 
 The Clerk having read the section referred to, the Speaker continued : 
 
 This is a most important section, and gravely touches the very vitals of the Republic as such, and 
 makes mandatory upon Congress certain things that shall be done by Congress if certain conditions exist. 
 This resolution alleges that certain things exist, expressly provided for by the section just read by the 
 Clerk. The resolution and the preamble must be considered together. WTiat is the object of the reso- 
 lution providing for the investigation to be made by the Committee on the Census? It is to ascertain 
 the truth of these facts and lay them before Congress so that proper action may be taken by this body. 
 
 The resolution is — 
 
 "That the Committee on Census shall be, and is, authorized and directed, either by full committee 
 or such subcommittee or subcommittees as may be appointed by the chairman thereof, to inquire, 
 examine, and report in what States the right to vote at any election for the choice of electors for President 
 and Vice-President of the United States, Representatives in Congress, the executive and judicial offi- 
 cers of a State, or the members of the legislatures thereof is denied to any of the male inhabitants of 
 such States 21 years of age and citizens of the United States, or in any way abridged, except for partici- 
 pation in rebellion or other crimes, and the proportion which the number of such male citizens shall 
 bear to the whole number of male citizens 21 years of age in each such State." 
 
 Can any wiser course be suggested for carrying out the clear mandates of the Constitution than liy 
 the provision of this preamble and the resolution? The grave charges are made, and the resolution to 
 carry out the proper investigation and treatment is before us. The whole matter, waiving all discussion 
 of the rules of this House, comes under the higher rule than our rule, the constitutional rule which is 
 here absolutely mandatory, and the Chair is unable to sec why we should wander even among the pre- 
 cedents, which the Chair has looked over to some extent and which are all one way, when we have the 
 plain language of the Constitution before us. The resolution is evidently carefully drawn in pursuance 
 of the language of the Constitution. The Chair only hopes that he will never have occasion to settle a 
 more difficult question than this, which seems to him so simple. The Chair therefore overrules the 
 point of order. 
 
 306. A bill relating to the taking of the census was held to be priv- 
 ileged because of the Constitutional requirement. — On January IG, 1900,= 
 Mr. aVlbert J. Hopkins, of Illinois, from the Select Committee on the Twelfth Census, 
 reported as privileged the bill (S. 2179) "relating to the Twelfth and subsequent 
 
 ' David B. Henderson, of Iowa, Speaker. 
 
 ^ First session Fifty-sixth Congress, Record, p. 884; Journal, p. 166.
 
 168 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 306 
 
 censuses, and c^rivino; to the Director thereof additional power and authority in 
 certain cases, and for other purposes." 
 
 Mr. Charles A. Russell, of Connecticut, made the point of order that the report 
 was not privileged. 
 
 After debate the Speaker ' held — 
 
 The question arises by the gentleman from Illinois [Mr. Hopkins], chairman of the Special Com- 
 mittee on the Twelfth Census, bringing in his report. 
 
 Were this an original question that had not been passed upon, the Chair might rule differently 
 than he feels constrained to rule at this time. 
 
 The Constitution of the United States makes it mandatory upon Congress to take a census of the 
 people every ten years. It also requires the Congress to make an apportionment of the Members of 
 Congress for each State. The Constitution also authorizes the Congress to adopt rules for its procedure. 
 
 If this were an original question, the Chair would be inclined to hold that if the House adopts rules 
 of procedure and leaves out any committee from the list of committees whose reports are privileged 
 that that committee would be remitted to those rules of procedure adopted by the House for its guidance. 
 But the Chair finds that a question which the Chair thinks is identical in every particular was ruled 
 upon in the Fifty-first Congress. I quote: 
 
 "A bill making an apportionment of Representatives presents a privileged question. On Decem- 
 ber 16, 1890, Mr. Mark H. Bunnell, of Minnesota, as a privileged question, moved that the House pro- 
 ceed to the consideration of the bill of the House (H. R. 8500) making an apportionment of Representar 
 fives in Congress among the several States under the Eleventh Census. The bill having been read at 
 length, Mr. James H. Blount, of Georgia, made the point of order that under the rule the Committee 
 on the Eleventh Census was not included among those having the right to report at any time such busi- 
 ness as would properly come before said committee, and that, therefore, the consideration of the bill at 
 this time was not a privileged question." 
 
 The House will see that it could not be more fairly and squarely stated than Mr. Blount stated it: 
 
 "The Speaker, Mr. Reed, being in the Chair, overruled the point of order, on the ground that a bill 
 making an apportionment is a privileged question, and it being a constitutional duty imposed on Con- 
 gress, the consideration of the bill was clearly a privileged question." 
 
 At that time the Fifty-first Congress had its Committee on Rules, and probably there never was one 
 more active than the Committee on Rules of that Congress. It was equipped with all the rules of pro- 
 cedure, and yet the Committee on the Eleventh Census was not clothed with the power to report at any 
 time. Now, the Chair is unable to see any distinction in principle between an apportionment bill and 
 a bill for taking the Tw(>lfth Census. The Chair has examined this bill. It is amendatory of the act 
 which we passed in the last Congress for taking the Twelfth Census. It is supplemental to that act. 
 It contains simply provisions for taking the Twelfth Census, all in the same line, and all required by 
 the Constitution. 
 
 If the decision made in regard to the consideration of the apportiormient bill was sound law, it 
 seems to the Chair clear that it ought to be a sound ruling that this is pri\'ileged. The Chair thinks 
 gentlemen cif the House will all agree that when decisions are made it is well, unless they are clearly 
 in abuse of the rules of the House, that these precedents should be followed. It is a guide to all Members 
 and will aid them in their work. 
 
 Now, when the bill for the Twelfth Census was first brought up the gentleman in charge of the 
 bill, the same gentleman as now presents this, offered it as a privileged report. Tlie Speaker did not 
 rule upon it. The gentleman from Texas [Mr. Bailey] reserved all rights against the bill, saying that 
 he was not clear that it was a privileged bill at all, and with that reservation the bill was considered 
 as introduced in the House, to be printed for the information of the House, and the chairman of the 
 committee, the gentleman from Illinois, gave notice that he would call it up the following Monday. 
 
 That being suspension day, it was passed under suspension of the rules, and the suggested ques- 
 tions of the week before, or some days before, were not passed on. But the Chair is clearly of the 
 
 ' David B. Henderson, of Iowa, Speaker.
 
 § 307 THE ELECTORS AND APPORTIONMENT. 169 
 
 opinion that the decision made in the Fifty-first Congress is sufficient warrant for holding this to be a 
 privileged question. 
 
 ilr. Joseph W. Bailey, of Texas, appealed from this decision of the Chair, and 
 during the debate the Speaker said: 
 
 The Chair desires to say * * * that the point made is clearly well made; but there is not an 
 element in this bill but that might have properly been in the original bill. \STiat the judgment of the 
 House may be as to the elements of this bill is another question, but it is all germane and pertinent 
 to the enumeration of the Twelfth Census. The Members of the House may differ as to the propriety 
 of some of these provisions, but whether they do or not, they are all in line with the demands of the 
 Constitution which require this body to take the census every ten years and to pro%ade the manner 
 for doing the same. * * * 
 
 The language of the Constitution is this: 
 
 "The actual enumeration shall be made within three years after the first meeting of the Congress 
 of the United States, and within every subsequent term of ten years, in such manner as they shall 
 by law direct." 
 
 Now, taking the census is the basis of apportionment, and the apportionment follows. Both are 
 absolutely and explicitly commanded by the Constitution. If the decision about the apportionment 
 was a correct decision, there can be no escape from the Chair's holding that the provision of law for 
 taking the census is also within the constitutional provision. 
 
 On the succeeding day, January 17, the decision of the Chair was sustained, 
 the appeal being laid on the table by a vote of j'eas 165, nays 138. 
 
 307. A bill making an apportionment of Representatives presents a 
 question of constitutional privilege. — On December 16, 1890,' Mr. Mark II. 
 Dunnell, of Minnesota, as a privileged question, moved that the House proceed to 
 the consideration of the bill of the House (H. R. 12500) making an apportionment 
 of Representatives in Congress among the several States under the Eleventh Census. 
 
 The bill ha\'ing been read at length, Mr. James H. Bloimt, of Georgia, made 
 tlie point of order that imder the rules the Committee on the Eleventh Census was 
 not included among those having the right to report at any time on such business 
 as would properly come before said conunittee, and that therefore the consideration 
 of the bill at this time was not a privileged question. 
 
 The Speaker ^ overruled the point of order on the ground that a bill making 
 an apportionment is a privileged cjuestion, and it being a constitutional duty imposed 
 upon Congress, the consideration of the bill was clearly a privileged question. 
 
 308. On February 7. 1882,^ Mr. Cyrus D. Prescott, of New York, as a priv- 
 ileged question, moved that the House proceed to the consideration of the bill 
 (H. R. 3550) making an apportionment of Representatives in Congress among the 
 several States under the Tenth Census. 
 
 Mr. John A. Anderson, of Kansas, made the point of order that the motion 
 was not one of privilege. 
 
 After debate the Speaker* said: 
 
 The Chair will state briefly that it is of opinion that the rules of the House are always subject to 
 any constitutional provision that may be found. It may be true that under the rules, strictly speaking, 
 
 ' Second session Fifty-first Congress, Journal, p. 59; Record, p. 530. 
 -Thomas B. Reed, of Maine, Speaker. 
 
 'First session Forty-seventh Congress, Journal, p. 519; Record, pp. 9G0-963. 
 ■* J. Warren Keifer, of Ohio, Speaker.
 
 170 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 309 
 
 this bill may not be in order. The Chair is, however, of opinion that the consideration of an apportion- 
 ment bill by this Congi-oss, fixing the representation in the next Congress under the last census, is one 
 of high constitutional privilege. The duty of Congress to make an apportionment after each census is 
 made imperative by the first clause of the second section of the fourteenth article of the amendments 
 to the Constitution of the United States, which reads as follows: 
 
 "Representatives shall be apportioned among the several States according to their respective 
 numbers, counting the whole number of persons in each State, excluding Indians not taxed." 
 
 It is a fact of which we must take notice, that this Congre.«s must pass an apportionment bill, fixing 
 the numlier of Representatives in the next Congress, or serious consequences must follow. The con- 
 sideration of this question is analogous, perhaps, to no other question that is made imperative by the 
 Constitution upon Congress. The state of the census; the fact that this Congress alone must act, and 
 that apportionment under the last census can not go over to the next Congress; the necessary legislation 
 that must take place in the different States at an early time, must all be taken into account. 
 
 In view, therefore, of the character and scope of this measure, and its constitutional character, 
 the Chair feels bound to hold that it is a question of high constitutional privilege. The Chair desires 
 also to state in this connection that it is informed that this has been treated as a question of privilege 
 at various times in the past history of Congressional legislation. 
 
 309. The election cases of the New Hampshire, Georgia, Mississippi, 
 and Missouri Members in the Twenty-eighth Congress. 
 
 The House gave prima facie effect to the credentials of certain Mem- 
 bers, although the legality of the manner of their elections was ques- 
 tioned. 
 
 On December 4, 1843,^ at the time of the organization of the House, Mr. D. D. 
 Barnard, of New York, objected that the gentlemen presenting themselves with 
 credentials from the States of New Hampshire, Georgia, Mississippi, and Missouri 
 had been elected on general tickets and not by districts, as prescribed by the law 
 of Congress. The Clerk, having declined to entertain a motion, the gentlemen in 
 question were sworn in and participated in the election of Speaker. 
 
 On December 13 ^ Mr. Garrett Davis, of Kentucky, brought the subject to the 
 attention of the House, and on December 20,' by a vote of yeas 148, nays 32, it was — 
 
 Resolved, That the Committee of Elections be directed to examine and report upon the certificates 
 of election, or the credentials of the Members returned to serve in this House; and that they inquire 
 and report whether the several Members of this House have been elected in conformity with the Consti- 
 tution and law. 
 
 310. The election cases of the New Hampshire, Georgia, Mississippi, 
 and Missouri Members continued. 
 
 The House, in 1842, declared entitled to seats Members elected at 
 large in several States, although the law of Congress required election 
 by districts. 
 
 Discussion of the respective powers of Congress and the States in 
 establishing Congressional districts. 
 
 Is the establishing of districts an exercise of the power of regulating 
 the times, places, and manner of elections? 
 
 ' First session Twenty-eighth Congress, Globe, pp. 2, 10. 
 ^Journal, p. 50; Globe, p. 33. 
 
 « T 1 n-i ^11 -. 
 
 -journal, p. uu; <jioue, p. aA. 
 'Journal, p. 81; Globe, p. 54.
 
 § 310 THE ELECTORS AND APPORTIONMENT. l7l 
 
 On March 15, 1844/ Mr. Stephen A. Douglas, of Illinois, from the Committee 
 of Elections, submitted the report, recommending the following resolutions: 
 
 Resolved, That the second section of "An act for the apportionment of Representatives among the 
 several States, according to the Sixth Census," approved June 25, 1842, is not a law made in pursuance 
 of the Constitution of the United States, and valid, operative, and binding upon the States. 
 
 Resolved, That all the Members of this House (excepting the two contested cases from Virginia, 
 upon which no opinion is hereby expressed) have been elected in conformity with the Constitution and 
 laws and are entitled to their seats in this House. 
 
 The second section of the apportionment act provided as follows: 
 
 That, in each case where a State is entitled to more than one Representative, the number to which 
 each State shall be entitled, under this apportionment, shall be elected by dL«tricts composed of contig- 
 uous territon,-, equal in number to the number of Representatives to which said State shall be entitled, 
 no one district electing more than one Representative.^ 
 
 The four States whose delegations were questioned had long had laws providing 
 for election by general ticket, and had not changed them to conform to the law of 
 Congress. Indeed, some of these States could not have done so without calling a 
 special session of the legislature. There was therefore a conflict of law and sov- 
 ereignty between those States and the United States, and it was important to know 
 whether or not the law of the United States was in accordance with the provision of 
 the Constitution — 
 
 The times, places, and manner of holding elections for Senators and Representatives shall be pre- 
 scribed 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 place of choosing Senators. 
 
 The report, after examining the text and historj' of this clause, concludes — 
 
 that the convention which formed and the people who ratified that great charter of our liberties intended 
 that the regulation of the times, places, and manner of holding the elections should be left exclusively to 
 the legislatures of the several States, subject to the condition, only, that Congress might alter the State 
 regulations, or make new ones, in the event that the States should refuse to act in the premises, or should 
 legislate in such a manner as would subvert the rights of the people to a free and fair representation. 
 
 The report goes on to say that even if the power of Congress under the para- 
 graph should be considered plenary and supreme as to prescription of time, place, 
 and manner, yet the section of law in question did not constitute an exercise of the 
 power in the manner prescribed by the Constitution. The law was inoperative and 
 nugatorv- without State legislation. It merely presumed to dictate to the State 
 legislatures how they should perform their duties under this clause of the Constitu- 
 tion. But there was no authority in the Constitution permitting Congress to compel 
 State legislatures to change laws or make new ones. The laws of Congress might 
 supersede or alter those of the States, but Congress might not direct the form of 
 State legislation, or require enactments to be made in obedience to certain pre- 
 scribed forms. The attempt to exercise such impracticable power was the e\41 of 
 the old Confederation. Hence followed the conclusion that Congress should either 
 designate the time, specify the places, and prescribe the manner by law, or leave it to 
 the wisdom and discretion of the several State legislatures. 
 
 ' 1 Bartlett, p. 47; House report No. 60. 
 
 ' For debates at the enactment of this law see second session Twenty-seventh Congress, Globe, pp. 
 445, 446, 463, 469, 496, 555, 561, 571, 576, 583, 588, 595, 601, 608.
 
 172 PKECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 310 
 
 In debating the question, on February 14,' Mr. Douglas took the further position 
 that Congress had no power to district the States, for that would be to prescribe the 
 qualification of voters as to residence — a power expressly reserved to the States. The 
 word "manner" in the Constitution did not include so broad exercise of power. 
 
 The minority views, presented by Mr. Garrett Davis, of Kentucky, and con- 
 curred in by Messrs. Willoughby Newton, of Virginia, and Kobert C. Schenck, of 
 Ohio, contended that the Members whose seats were in question were not elected in 
 pursuance of the Constitution and law, and that the seats should be declared vacant. 
 
 The minority quote that clause of the Constitution providing that "this Con- 
 stitution and the laws of the United States which shall be made in pursuance thereof" 
 shall be "the supreme law of the land," anything in the "laws of any State to the 
 contrary," and declare that the elections in the four States must be void imless the 
 law in question should be found unconstitutional or inoperative. The State 
 legislatures, in providing the times, places, and manner of holding elections, acted 
 as Federal agencies, and in testing the validity of their laws the Federal Constitution 
 was the only guide. And the Constitution evidently, fiom its text and historj', 
 sanctioned the adoption of the district system by the States. The idea that the 
 general ticket was the only constitutional method was newborn and fallacious. 
 The States had been using the district system since the beginning of the Government. 
 
 If the clause relating to prescribing the times, places, and manner of elections 
 did not give the power to Congress to determine whether Representatives should 
 be chosen by general ticket in districts, then the State legislatures had not that 
 power which they had been exercising so long. The States certainly had no implied 
 power to conduct this or any other operation of the General Government. If 
 the constitutional clause did not give, both to the legislatures and the Congress, 
 the power to direct that Members of the House should be elected by districts or 
 general ticket, then the regulation belonged to Congress exclusively as an implied 
 power. 
 
 The minority proceeded to discuss the power of Congress to "alter" the regula- 
 tions of States on this subject, holding that it gives to Congress plenary power to 
 alter any regulations that the State may make on the subject. 
 
 Congress being able to exercise the undoubted power to provide for the whole 
 manner of holding such elections, it could hardly be held that a partial exercise 
 of that power was not constitutional. The objection, therefore, was not that Con- 
 gress had exercised an unconstitutional power, but that it had defectively exer- 
 cised a constitutional power. The question, therefore, was not whether the law 
 was unconstitutional, but whether it could be considered a nullity. But because 
 the regulation, standing alone, could not be executed did not prove it a nullity. 
 The Constitution itself required legislation to make operative its provisions in 
 respect to this subject. But the law of Congress made in pursuance of the Con- 
 stitution was the supreme law of the land, and State legislatures were therefore 
 bound to conform to it. 
 
 The minority views conclude with a paragraph deprecating an assault by the 
 House of Representatives on a law of Congress. 
 
 ' Globe, p. 277.
 
 I 311 THK ELECTORS AXD APPORTIUNMENT. 173 
 
 From Februan' 6 to February 14 ' the report was debated in the House. On 
 February 13 in the House Mr. George C. Dromgoole, of Virginia, offered an amend- 
 ment to the resolutions of the majority of the committee. This amendment, in the 
 nature of a substitute, omitted all reference to the apportionment law, but declared 
 all the Members of the House (except the two Virginia contested cases) from the 
 unchallenged States elected and entitled to their seats. The amendment further 
 declared the Members from New Hampshire, Georgia, Mississippi, and Missouri 
 iadividually entitled to their seats, having been "duly elected." 
 
 On February 14 Mr. Dromgoole's amendment was agreed to — yeas 126, nays 57. 
 
 Then the question being on agreeing to the resolution as amended by the 
 substitute, a division of the question was allowed, so that a separate vote was taken 
 on each individual, and they were severally declared duly elected and entitled to 
 their seats bj^ votes not varying greatly from that by which the substitute was 
 agreed to. 
 
 311. The New Hampshire election case of Perkins v. Morrison in the 
 Thirty-first Congress. 
 
 The New Hampshire districts being changed after Representatives 
 to the Thirty-first Congress were elected, an election to fill a vacancy was 
 called in the new district, and the election was sustained. 
 
 Discussion of the powers of Congress and the States as to fixing the 
 times, places, and manner of elections. 
 
 On December 16, 1850,^ the Committee on Elections reported on the contested 
 election of Perkins v. Morrison, from New Hampshire. The whole case turned on 
 the apportionment act of the State legislature of July 11, 1850. This act, in estab- 
 lishing the Third district, included in it four towns which were in the Second district 
 under the former apportionment, enacted by the law of July 2, 1846. The act of 
 July 11, 1850, repealed all acts inconsistent with it and contained a provision that 
 it should go into effect from its passage. 
 
 On September 9, 1850, Mr. James Wilson, who had been elected for the old 
 Third district, resigned, and by precept of the governor a special election was held 
 in the new Third district on October 8, 1850. At this election George W. Morrison 
 received a majority of 63 votes over Jared Perkins. But Mr. Perkins showed that 
 if the election had been held within the limits of the old district only he would have 
 been elected, since Mr. Morrison's majority came entirely from the four towns 
 included by the law of July 11, 1850. 
 
 The majority of the committee found: 
 
 By the Constitution of the United States, the right to prescribe the times, places, and manner of 
 holding elections for Representatives in each State is declared to be in the legislature thereof, subject to 
 the superior power of Congress to make or alter such regulations by law. That power, however. Congress 
 has never exercised, unless it was partially exerted by the second section of the act of June 25, 18-42, to 
 which reference has already been made. Limited only, therefore, by the provisions of that section, the 
 l^islature of New Hampshire had plenary power to prescribe by what districts the election.s should be 
 made, and to change the boundaries of those districts at its pleasure and at any time. No constitutional 
 provision, no law of Congress, restrains this right originally to form, or subsequently to alter, the limits of 
 
 ' Journal, pp. 353, 356, 359, 362, 365, 367.379; Globe, pp. 236, 241, 248. 252, 255, 264, 276. 
 'Second session Thirty-first Congress, 1 Bartlett.p. 142; Rowell's Digest, p. 135; House Report No. 3.
 
 "174 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § ^H 
 
 Congressional districts, at the discretion of the State legislature. It is conceded that Congress could liy 
 law have exclusively determined the extent of each district, and enacted that it should remain unchanged 
 under the apportionment during the entire period of ten years. But this has not been done. The act 
 of June 25, 1842, only enacted that the elections (alike general and special) should be by districts of 
 contiguous territory; and, under the law, the limits of each district must be as they were before its 
 passage — such as the legislature of the State may from time to time prescribe. The act of Congress is 
 merely commendatory. It was not possible to delegate to the State legislature the legislative power 
 vested by the Constitution in Congress. It follows, of course, that the districting acts are the untram- 
 meled action of the legislative assembly of New Hampshire, and consequently that the power to change 
 the boundaries of a district remains unlimited in the same legislature. Your committee are not informed 
 that this position has hitherto ever been seriously controverted. Such appears to have been the common 
 understanding. The legislatures of several of the States, after having formed Congressional districts in 
 conformity with the recommendation of the act of Congress of June 25, 1842, have subsequently redis- 
 tricted the States, or made changes in the boimdaries of the districts previously formed. North Carolina, 
 Georgia, Ohio, and Pennsylvania are among the number. Representatives elected from the districts 
 thus reorganized have been admitted to seats in the House without objection. More than twenty Repre- 
 sentatives elected by these remodeled districts sit unchallenged in the present Congress. 
 
 But it is urged, on behalf of the contestant, that if the power be conceded to the legislature of New 
 Hampshire to redistrict the State, the districting act of July II, 1850, does not extend to an election to 
 fill vacancies in the Thirty-first Congress. In terms, however, it unquestionably does. It took effect 
 from its passage. It repealed so much of the former act as was inconsistent with its provisions. Immedi- 
 ately on its passage, therefore, there were no Congressional districts in New Hampshire other than those 
 limited by this later act. An election to fill the vacancy occasioned by the resignation of Mr. Wilson 
 could therefore have been held in no other manner than that in which the sitting Member was elected. 
 The Third district, by which Mr. WiLson was elected, was a creature of the act of July 2, 1846; it was 
 sustained by it and ceased with it. ^^'hen, therefore, an election was ordered to be held on the 8th of 
 October, 1850, no political division, no Congressional district, embracing exclusively the counties of 
 Hillsborough and Cheshire, had any legal existence. It had given place to the Third district, as limited 
 by the Second districting act. The governor of the State could issue his precept to none other than an 
 existing district. 
 
 The committee also found no difficulty in the fact that the legislature had 
 extended the provisions of the act to vacancies occurring in the Thirty-first Con- 
 gress. Wliile it might be bad policy to change districts once made, yet the legis- 
 lature undoubtedly had that power. Nor were the committee impressed with the 
 argument that the voters of the four towns, having voted both in the Second and 
 Third districts, enjoyed double representation. Tliis they conceived to be foimded 
 on an erroneous view of the theory of constitutional representation. The division 
 of a State into districts was a regulation of the manner of elections, not of the 
 extent of representation. The argument that a legislature might so change dis- 
 tricts that the governor could not tell in which to call an election in case of vacancy 
 did not weigh with the committee, since it did not seem reasonable to argue that 
 a power did not exist simply because it might be abused. 
 
 Therefore the majority of the committee reported a resolution declaring Mr. 
 Morrison entitled to the seat. 
 
 The minority took the groimd that the act of 1850 was not intended to apply 
 to elections to this Congress, and that if it were so intended it was a law that the 
 legislature had no authority to make. Therefore the minority reported a resolu- 
 tion declaring Mr. Perkins entitled to the seat. 
 
 The case was debated fully in the House on January 7, 8, 9, and 10, 1851.' 
 
 'Journal, pp. 119, 124, 126-130; Globe, pp. 183, 193, 204. 
 
 11
 
 § 312 THE ELECTORS AND APPORTIONMENT. 175 
 
 On a motion to substitute the minority for the majority proposition, the yeas were 
 84, nays 103. 
 
 On agreeing to the resohition of the committee that Mr. Morrison was entitled 
 to the seat, there were 98 yeas and 90 nays. So the sitting Member was confirmed 
 in his seat, Mr. Morrison having taken his seat on his credentials at the beginning 
 of the session. 
 
 312. The North Carolina election case of Pool v. Skinner in the Forty- 
 eighth Congress. 
 
 The North Carolina districts being changed after Representatives to 
 the Forty-eighth Congress were elected, the House did not disturb the 
 Member chosen in a new district to fill a vacancy in an old district. 
 
 Discussion as to the functions of a governor in calling an election to 
 fill a vacancy in the Congressional representation. 
 
 On March S, 1SS4,' Mr. Henry G. Turner, of Georgia, from the Committee on 
 Elections, submitted the report of the majority of the committee in the North 
 Carolina case of Charles C. Pool v. Thomas G. Skinner. 
 
 On November 7, 1882, at the regular election for Members of the Fortj'-eighth 
 Congress, Walter F. Pool was chosen a Representative from the First district of 
 the State. 
 
 On March 6, 1883, the State was redistricted by the legislature, and the First 
 Congressional district was changed by taking away from it Bertie Count}- and 
 adding Carteret County. This act, b}- its terms, was in force ' ' from and after its 
 ratification." 
 
 On August 23, 1883, Mr. Walter F. Pool died. 
 
 The majority thus treats the question arising: 
 
 Subsequently the executive authority of the State issued a writ of election directing an election 
 to be held on the 20th day of November, 1883, in the counties of the First district, as defined by the 
 act of March, 1883, to fill the vacancy caused by the death of Mr. Pool. At this latter election Thomas 
 G. Skinner and Charles C. Pool were opposing candidates, and Mr. Skinner was, by the proper author- 
 ity, declared to have been elected. 
 
 It is proper here to add that Mr. Charles C. Pool has served upon Mr. Skinner notice of contest, 
 to which Mr. Skinner has filed his answer, and from the attorneys for the parties we have obtained the 
 facts on which the foregoing statement is founded: 
 
 The Constitution, article 1, section 4, clause 1, provides that — 
 
 "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 place of choosing Senators. " 
 
 Section 2, clause 4, of the same article of the Constitution provides that — 
 
 "When vacancies occur in the representation from any State, the executive authority thereof 
 shall issue writs of election to fill such vacancies. " 
 
 The question is whether, after a Representative is elected by the people of a district before a change 
 of its boundaries, a vacancy caused by his death can be filled by the people of the district after its 
 boundaries are changed. 
 
 The Constitution seems to treat Members of the House as Representatives of the States, and not of 
 districts merely; and the States have the right to determine what portion of their people shall choose 
 these Representatives, subject only to the last apportionment act of Congress. The State of North 
 
 ' First session Forty-eighth Congress, House Report No. 727; Mobley, p. 65.
 
 176 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 312 
 
 Carolina, by the act ratified on the 6th of last March, has provided "that for the purpose of selecting 
 Representatives to the Congress of the United States, the State shall be divided into nine districts." 
 This language might well be said to cover and include all elections, general as well as special ; nor does 
 it exclude any Congress. But this view is greatly reenforced by the second section of the act, which 
 provides that it "shall take effect from and after its ratification. " The old arrangement of the counties 
 into eight districts was therefore abolished. The governor disregarded the old law, which had been 
 superseded without any reservation, and followed as well as he could the law which was of force at the 
 time of Mr. Walter F. Pool's death, and at the date of the writ of election. 
 
 There is no provision in the statutes of North Carolina which prescribes the place of the election 
 made necessary under the special circumstances of this case, and the effort seems to have been made 
 to approximate in the location of the election, as nearly as possible under the existing distribution of 
 the counties into districts, to the territory the people of which chose Mr. Pool as their Representative. 
 
 The practice in the States in cases similar has been variant, the election in some cases having been 
 ordered in the new district, in others in the old district. The practice in the House has been uniformly 
 to acquiesce in the action of the State authority; and, following this line of consistency, if the governor 
 of North Carolina had ordered the election to fill this vacancy in the old district, we would not have 
 felt it our duty to recommend that the election should be vacated. By the Constitution of the United 
 States, before cited, the governor is constituted the tribunal to determine when and where to order an 
 election to fill a vacancy, and where the laws by which he is to be guided are doubtful his decision 
 ought to be followed by Congress. This course is founded upon precedent, upon the respect due to 
 State authority, and upon that public policy which requires full representation of the States. 
 
 It has been contended that the code of North Carolina (section 2722) in reference to vacancies 
 furnishes the rule for a case like this, but, in our opinion, that section only requires that the governor 
 shall issue his writ of election, and by proclamation require the voters in the different townships in 
 their respective counties, at such time as he may appoint, and at the places established by law, then 
 and there to vote for a Representative in Congress to fill the vacancy. Such is the language of the 
 section, and it does not militate against the course which the governor pursued in this case. 
 
 Some stress has been laid upon section 3868 of the code of North Carolina, which is as follows: 
 
 "The repeal of the statutes mentioned in the preceding section shall not affect any act done, or 
 right accruingor accrued, or established, or any suit or proceeding had or commenced in any case before 
 the time when such appeal shall take effect; but the proceedings in every such case shall be conformed 
 when necessary to the provisions of this code." 
 
 The previous section repeals all public and general statutes of the State with the exceptions and 
 limitations just enumerated. But it must be borne in mind that this code containing this provision 
 did not take effect until the 1st day of November, 1883, while the new districting act, which was also 
 included in this code, took effect from and after March 6, 1883, andcontained no such provision. Besides, 
 we think that this section of the North Carolina code relates only to private vested rights, such as could 
 be asserted in the courts. 
 
 Much has been said about absurd consequences which may follow under the view taken in 
 this report; but we think that such an argument would be more fitly addressed to the legislatures of 
 the States. And we do not hesitate to say that we would be glad to see such a regulation provided by the 
 States as would obviate these absurd consequences. Perhaps Congress might effectuate this end in the 
 apportionment act made necessary after every census. 
 
 As the result of this report, we submit the following resolution, and recommend its adoption: 
 
 Resolved, That Thomas G. Skinner retain his seat without prejudice to the ultimate right to the seat 
 involved in the contested-election case of Charles C. Pool v. Thomas G. Skinner. 
 
 Mr. J. C. Cook, of Iowa, while concurring in the conclusions of the majority, 
 dissented from the doctrine therein set forth: 
 
 Representation of the States in Congress by districts has so long been the universal rule that any 
 doubt of the power of Congress to require the subdividing of States must be regarded as set aside. When 
 a State has been divided and Representatives elected for a certain Congress, each district must be 
 regarded as an existing fact for and through that entire Congress, and as the person elected from a par- 
 ticular district has the right to hold the office during the legal term of that Congress, so his office must
 
 § 312 THE ELECTORS AND APPOKTTONMENT. 177 
 
 be held to exist in law and in fact for the entire term of the Congress of which he is a Member. As the 
 State legislature can not legislate him out of office, so it can not destroy the office which he fills; no more 
 can it destroy the district upon which the office rests. 
 
 I am clearlyof the opinion that the only people who had a right to participate in the election to 
 fill the vacancy were those of the old district, and that all votes cast outside of this district were void. 
 The governor's duty was ministerial. He could do no more than fix the day for the election. The 
 fact that he invited the people of Carteret County to participate in the election did not authorize them 
 to vote, neither do I think that his failure to invite the people of Bertie deprived them of their fixed 
 right to vote. The only material thing he was authorized to do was to fix the time for the election. 
 Suppose he simply called the election with sufficient definiteness to indicate the officer to be voted for 
 or the vacancy to be filled and set the time, but had not mentioned the counties in which the election 
 should be held, would there be any question as to the validity of an election held in the old district? 
 As he had no power to determine or change the district, what he attempted in that direction was mere 
 surplusage in his proclamation. From this it seems to me the people of Bertie County had a right to 
 participate in the election; certainly if they had, their votes would here be counted. 
 
 It is universally held when notice of an election is required by law and is not given that this 
 is not fatal. This being a special election can not change the rule. The only difference is that in the 
 one the time is fixed by law, while in the other this is fixed by the proclamation of the governor. Mr. 
 Skinner received a majority of the votes cast in the old district. The fact that the people of Bertie 
 County did not vote can not invalidate the act of those who did vote. It will not do to say no opportu- 
 nity was given them. They could have asserted their rights given them by law. If no officers appeared 
 to open the polls they could organize and hold the election at the places fixed liy law. ■S\ hen we concede, 
 as we must, that had they done this their votes would be made effective here at least, it must follow 
 that ha^•ing failed to do so they can not complain. 
 
 But if there is doubt on the foregoing proposition, there can be none on the following: 
 
 Mr. Skinner is here duly returned as a Representative from his State. No fraud is charged in his 
 election, no misconduct on the part of any one; nothing more than a mistake on the part of the governor 
 in calling the election. Keither the people of Bertie County nor any one of them complains. The 
 State acquiesces, the district is satisfied, and no complaint is made by any one in Bertie County. 
 
 In view of all this, bearing in mind the fact that there was no intentional wrong, no fraud upon the 
 ballot, or affirmative interference with the right of the citizens, considerations of ''respect due to State 
 authority, and that public policy which requires full representation of the States" would dictate that 
 the House should not, of its own motion, declare a vacancy and require another election. 
 
 The minority views, filed by Mr. A. A. Ranney, of Massachusetts, hold — 
 
 that the right of representation for the full term of the Forty-eighth Congress inhered in the people of 
 the old district as an accrued or an established right, and that they alone had the right to fill the existing 
 vacancy. 
 
 The minority continue: 
 
 This right was secured to them on a fundamental principle of our representative Government and 
 by positive law, both Federal and State. We hold these principles and these propositions to be radical 
 and fundamental in our Government: (1) No portion of the people or territory of a State can be rightfully 
 deprived of a representation in Congress; (2) no portion of the people or territory are rightfiilly entitled 
 to a double district representation in Congress. 
 
 If the present election is sustained, both of these propositions are violated. The people and terri- 
 tory of Bertie County, with a population of 16,392 and 2,588 voters, are deprived entirely of all district 
 representation in the Forty-eighth Congress, and Carteret Coimty, with a population of 9,756 and 1,600 
 voters, is allowed a double representation. 
 
 It also appears that by means of calling and holding the election in the new district instead of the 
 old the political complexion of the representation has been reversed. Bertie County casts a Republican 
 majority of about 800, Carteret County a Democratic majority of about 400, and contestee was returned 
 as elected by a majority of about 700. 
 
 599i— VOL 1—07 12
 
 178 PRECEDENTS OF THE HOUSE OF EEPRESEJSTTATIVES. § 312 
 
 The election was called by the lieutenant-governor in the absence of the chief executive. The 
 essential facts are not in dispute. 
 
 A construction of the law which works such an infraction of important political rights and results in 
 a wrong so palpable and gross will not be readily accepted as designed by the enactors thereof. We 
 believe the true rule to be as enunciated by Judge McCrary (sec. 179), "That a district once created, 
 and having elected a Representative in Congress, should be allowed to continue intact for the purpose 
 of filling any vacancy which may occur until the end of the Congress in which it is represented." It 
 will be seen, we think, that the existing legislation not only admits of the application of this rule in this 
 case but allows of no other reasonable construction. 
 
 Having examined the question of fact as to what the laws of Congress and 
 the State actually provided, and having become satisfied that the state of the 
 law was such as to require the election to have been held in the old district, the 
 minority continue: 
 
 The majority report cites that clause of the Constitution which reads as follows (Art. I, sec. 4, 
 clause 1): 
 
 "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 place of choosing Senators." 
 
 But we can not see how this gives any support to the action of the executive. 
 
 The governor had no right, and was not empowered by law, to determine in what district the election 
 should be held to fdl a vacancy. The power is given to the legislature of the State to prescribe the time, 
 place, and manner of holding elections, with a power reserved to Congress to alter the regulations made 
 or to make them itself. It does not rest with the governor to do it. The general assembly has made 
 regulations in North Carolina, giving the governor power to fix the time for holding special elections, 
 and making his duty to issue a writ of election, and by proclamation to require the votera of the town- 
 ships in the counties composing a district to fill a vacancy in case it occurs. In general elections the 
 time is fixed by statute (Code, sec. 2721). Except as to the time everything is fixed and regulated by 
 legislative action, and when the governor has fixed the time and issued the writ, the election is to be held 
 in every respect as established by law (sec. 2722 of Code). An attempt seems to be made in the 
 majority report to prove that the governor has legislative power, so he may determine what district 
 the election shall be held in. If this were so he might have ordered an election at large, or in anyone 
 of the old eight, or either of the nine new, districts, which would be absurd. Districts are estalilished 
 by law, and that law binds the governor as much as any other citizen. The governor has no authority 
 beyond what is conferred upon him by law, and when he assumes any other he usurps it. 
 
 If it is meant to be claimed that the governor's interpretation of the law is binding, we have only 
 to call the attention of the House to the well-recognized law that the governor is not a judicial oflicer, 
 but his functions are purely executive in their character. Decisions of State courts in interpreting 
 local statutes are heeded in the Federal courts. It is not so with the interpretations put upon the 
 law by an executive officer. 
 
 The minority then cite the Tennessee cases of 1871, and the Iowa case in the 
 Forty-sixth Congress, and after commenting thereon, says: 
 
 It is vain and a mistake to treat a Congressional district as a corporation, with officei-s and election 
 machinery, for as such it has none. They exist in the townships and the counties exclusively. No 
 powers were needed, therefore, to be reserved to the districts in analogy to dissolved corporations. 
 A Congressional district has no corporate existence whatever. Defining its boundaries is only naming 
 the counties, the voters in which are to vote for a Representative to Congress. Numbering them is 
 purely arbitrary, and correspondence in numbers does not determine the identity of the district as to 
 counties composing the same. In the new nine, number one may not have contained a single foot 
 of territory which was embraced in the old number one. 
 
 We have treated the case thus far under the particular legislation of North Carolina. The dis- 
 tinguishing elements existing take this case out of the operation of the rule and doctrine followed in 
 
 .1
 
 § 312 THE ELECTORS AND APPORTIONMENT. 179 
 
 Perkins v. Morrison (1 Bart., 142), and which gave rise to the conflict of precedents in this House, con- 
 sidered by McCrary in his work (sees. 179, 180). The doctrine of that case was reversed by case 
 of Hunt V. Menard (2 Bart., 477), although the latter was complicated somewhat by another question 
 of fraud. In both of those cases, and in the case of Mr. Taylor, of Ohio, in the Forty-sixth Congress, 
 and of Doctor McLean, in the Forty-seventh Congress, the original election was not held under an act of 
 Congress. The old districting acts had been absolutely repealed, and there was no State law providing 
 for filling vacancies. Hence all the trouble in those cases. No such state of law exists in the present 
 case. 
 
 The importance of these distinctions in two respects will be appreciated and shown by referring 
 to the report of the committee in Hunt i. Menard, section 180 of the work of Judge McCrary. We 
 quote a portion of the same: 
 
 "The act of the legislature of Louisiana of August 22, 1868, making a new division of the State 
 into its five Congressional districts, by its terms purports to repeal all laws and parts of laws in con- 
 flict with said act, but is silent on the subject of vacancies that might occur in the districts as then 
 existing. 
 
 ''The language of the minority report in the case of Perkins, on the New Hampshii-e statute, is 
 appropriate on this point as well as on this case generally, and we quote from it as follows: 
 
 • 'It does not purport to provide for any method of filling vacancies that might occur in the 
 future, and beyond all question it was understood as providing only for the election of Members to 
 future Congresses. Such are the terms of the act, and such must also be its spirit. A vacancy in the 
 House of Representatives is the occurrence of an event by which a portion of the people are left 
 unrepresented, and the filling of that vacancy is directed by the Constitution in such explicit language 
 as requires no aid from State enactments to perfect the right.' 
 
 " The second section of the first article of the Constitution reads: ' When vacancies occur in the 
 representation from any State, the executive authority thereof shall issue writs of election to fill such 
 vacancies.' This is the only provision of law on the subject of vacancies, and it is ample and sufficient." 
 
 Concluding, the minority say : 
 
 We are of opinion that the election should be declared invalid. It is not a case of mere irregularity 
 in nonessential particulars or one where no substantial injury has been done. The whole foimdation 
 of the election is illegal and the infirmity is deep and fatal. Over 16,000 people have been deprived of 
 all district representation and some 10,000 have got a double representation, and the political complexion 
 of the representation has been reversed. That end may have been the guiding consideration which 
 led to the action of the executive. If not so in this case, such may be the case hereafter under like 
 circumstances, and the other party suffer at that time. Other cases are likely to arise this term of 
 Congress. One has already arisen, and the vacancy has been filled in the old district, and the question 
 may come up again soon. 
 
 Assuming that the executive could have called the election either in the old or the new district, 
 and had it legal, as found by the majority report, the conduct of the lieutenant-governor, acting as chief 
 in the temporary absence of the governor, in disregarding the three last precedents of this House and the 
 doctrine approved in the standard authority in Congress, can not easily Ije reconciled with the afisumption 
 of good faith. 
 
 The contention that there has been something done by which the rights of the aggrieved parties 
 have been lost does not seem to us to be entitled to much consideration. They are before the House by 
 the contestant, who is authorized by an act of C'ongress to represent them in conducting the contest. 
 No memorial was necessary. There has been no such thing as what is called in law acquiescence. 
 Enforced submission to executive authority is not acquiescence as known to the law. No appeal to the 
 courts would have been of any avail, as they had no jurisdiction. An appeal here was the only means 
 of redress allowed by law. This is a public inquiry, and not altogether personal, and the House has a 
 duty to perform under the Constitution, which requires it to determine the validity of the election, and 
 does not allow it to elect Representatives nor to admit to seats persons not duly elected. 
 
 The people of Bertie County had no official notice of the election, and if they had heard of it 
 otherwise any effort to vote would have been in vain, as, presumably, no polls were opened and no
 
 180 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 313 
 
 election machinery set in motion in that county. It waa a special election, and the law did not fix 
 the time. 
 
 Besides this, the question of acquiescence is a question of fact, and the conunittee had no 
 authority to hear or take evidence upon it, and have not done so. We do not know but that voters in 
 Bertie County did try to vote. Acquiescence is not nonaction alone. There must be failure to act 
 where action would have availed. 
 
 We recommend the passage of the following resolutions: 
 
 Resolved, That the old First Congressional district of North Carolina, in which A\'alter F. Pool was 
 chosen as Representative to the Forty-eighth Congress, was the only proper district in which to call and 
 hold an election to fill the vacancy caused by his death. 
 
 Resolved, That Thomas G. Skinner is not entitled to retain longer his seat in this House as Rep- 
 resentative from the First Congressional district of North Carolina to the Forty-eighth Congress. 
 
 This report was called up in the House both on June 12 and 27, 1884,' but 
 on each occasion the House voted not to consider it. On July 5, 1884,^ it was 
 postponed to the second Monday of December. 
 
 Again on February 27, 1885,^ it was again called up, but the House declined a 
 third time to consider it. And Mr. Skinner retained the seat until the end of the 
 Congress. 
 
 313. The Kentucky election case of Davidson /'. Gilbert in the Fifty- 
 sixth Congress. 
 
 The House declined to interfere with the act of a State in changing 
 the boundaries of a Congressional district. 
 
 Discussion of the respective powers of Congress and the States in 
 fixing the times, places, and manner of elections. 
 
 On March 1, 1901," Mr. R. W. Tayler, of Ohio, from the Committee on Elections 
 No. 1, submitted a report in the case of Davidson v. Gilbert, from Kentucky. This 
 contest arose chiefly from the fact that on March 11, 1898, an act was passed by 
 the legislature changing the boundaries of the Eighth and Eleventh Congressional 
 districts of Kentucky, whereby the county of Jackson was taken from the Eighth 
 district and added to the Eleventh. Jackson County having a large Republican 
 majority, the effect of its transfer to the Eleventh was to change the Eighth from a 
 district which had immediately previously been Republican into a Democratic 
 district. 
 
 The claims of the contestant that the act was contrary to the State constitution, 
 and that it had never properly passed the legislature, are dismissed by the com- 
 mittee without discussion as having no foundation. 
 
 The third objection was that this act contravened an act of Congress, and 
 this the committee considered at length in the light of Article I, section 4, of the 
 Constitution — 
 
 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. 
 
 ' Journal, pp. 1432, 1569. 
 
 - Journal, p. 1701. 
 
 ^ Second session Forty-eighth Congress, Journal, p. 709. 
 
 ■• Second session Fifty-sixth Congress, House report No. 3000; Rowell's Digest, p. 603.
 
 § 313 THE ELECTORS AND APPORTIONMENT. 181 
 
 The report goes on to say that this is the first time that Congress has been 
 asked to undo the work of a State which had divided itself into a proper number of 
 Congressional districts. Reviewing the history of apportionments, the report says : 
 
 For nearly forty years the States proceeded to elect Representatives, some at large and some by 
 districts. In 1S40 the policy of electing by districts was generally approved and adopted, but several 
 of the States continued to elect their Representatives by the vote of the entire State. The first legisla- 
 tion on the subject going beyond the mere apportionment of the States was enacted in 1842. In the 
 apportionment act of that year an amendment was added in the House providing for the division of 
 the several States into districts, composed of contiguous territory, equal in number to the number of 
 Representatives to which the State was entitled, and each district to elect one Representative, and 
 no more. 
 
 The amendment provoked considerable discussion, but was finally adopted. 
 
 The apportionment act, based upon the census of 1850, made no provision for the division of States 
 into districts, nor did the act of 1862. The act of February 2, 1872, provided that Representatives 
 should be elected by districts composed of contiguous territory, and added the provision "containing, 
 as nearly as practicable, an equal number of inhabitants." The same provision appea,rs in the appor- 
 tionment acts of 1882 and 1891. 
 
 So far as legislative declaration is concerned, it is apparent that Congress has expressed an opinion 
 in favor of its power to require that the States shall be di\'ided into districts composed of contiguous 
 territory and of as nearly equal population as practicable, ^\'hether it has the constitutional right to 
 enact such legislation is a verj' serious question, and the uniform current of opinion is that if it has 
 such power under the Constitution that power ought never to be exercised to the extent of declaring a 
 right to divide the State into Congressional districts or to super\-ise or change any districting which the 
 State may provide. 
 
 The best opinion seems to be that the Constitution does not mean that under all circumstances 
 Congress shall have power to divide the States into districts, but only that the constitutional pro\'ision 
 was inserted for the purpose of gi^^ng Congress the power to provide the means whereby a State should 
 be represented in Congress when the State itself, for some reason, has failed or refused to make such 
 provision itself. 
 
 In support of this view the report goes on to quote the views of Justice Story, 
 Alexander Hamilton, James Madison, Chancellor Kent, Daniel Webster (as pre- 
 sented in a report made in the Twenty-second Congress), and Nathan Clifford 
 (presented in a speech in the Twenty-seventh Congress), and concludes with this 
 opinion : 
 
 Your committee are therefore of opinion that a proper construction of the Constitution does not 
 warrant the conclusion that by that instniment Congress is clothed with power to determine the 
 boundaries of Congressional districts or to re\Tse the acts of a State legislature in fixing such bound- 
 aries, and your committee is further of opinion that even if such power is to be implied from the 
 language of the Constitution it would be in the last degree unwise and intolerable that it should 
 exercise it. To do so, would be to put into the hands of Congress the ability to disfranchise, in effect, 
 a large body of the electors. It would give Congress the power to apply to all the States, in favor of 
 one party, a general system of gerrymandering. It is true that the same method is to a large degree 
 resorted to by the several States, l>ut the di\Tsion of political power is so general and diverse that, 
 notwithstanding the inherent vice of the system of gerrymandering, some kind of equality of distri- 
 bution results. 
 
 Therefore the committee reported a resolution confirming Mr. Gilbert's title to 
 his seat. 
 
 The report was not acted on by the House, Mr. Gilbert of course retaining the 
 seat.
 
 182 PKECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 314 
 
 314. The California election case of F. F. Lowe in the Thirty-seventh 
 Congress. 
 
 A State having elected on a general ticket three Representatives 
 when it was entitled to but two, the House denied a seat to the one 
 receiving the fewest votes. 
 
 A State sending three Representatives when it was entitled to but 
 two, the House gave prima facie effect to only two credentials. 
 
 Discussion of the census and apportionment law of 1850, which 
 applied to succeeding censuses and apportionments. 
 
 California having in good faith elected one Member in excess of her 
 apportionment, Congress by law provided for his admission. 
 
 On December 2, 1861/ at the beginning of the second or regular long session of 
 the Congress, two Members from Cahfornia, Messrs. Aaron A. Sargent and T. G. 
 Phelps, appeared, presented their credentials, and were sworn in without objection. 
 
 On the same day Mr. Phelps presented the credentials of Mr. F. F. Lowe as a 
 third Member from California;'^ but no motion or request was made that he be 
 sworn in, and without debate his credentials were referred to the Committee on 
 Elections. 
 
 On April 14, 1862,' the committee reported, setting forth the following state 
 of facts: 
 
 By (he apportionment under the Eighth Census [of 1860] California is entitled to three Representa- 
 tives, and it is claimed by the memorialist that that apportionment applies to the present or Thirty- 
 seventh Congress. By special provision of statute, enacted July 30, 1852, it was provided that Cali- 
 fornia should have two Representatives till a new apportionment should take effect. But that State, 
 believing that the apportionment based on the Eighth Census had already taken effect, did, at its 
 general election held on the first Wednesday of September last, elect by general ticket three persons 
 to represent her in the present Congress. 
 
 The Constitution provides that Representatives "shall be apportioned among the several States 
 which shall be included within this Union according to their respective numbers;" and that "the 
 actual enumeration shall be made within three years after the first meeting of Congress, and within 
 every subsequent ten years in such manner as they shall by law direct." The census and apportion- 
 ment thus connected together in the Constitution have been connected together in all subsequent 
 legislation by Congress. It has been the course of legislation, up to the year 1850 and the taking of the 
 Seventh Census, to provide for the taking of each census by special act, andj immediately upon its 
 completion by a like special act to determine the number of Representatives, and apportion the same 
 among the several States according to such census. But in providing for the taking of the Seventh 
 Census in 1850 Congress undertook to establish a permanent system both for the taking of all fuliu-e 
 censuses and for all future apportionments. (Stat. L., vol. 9, p. 428.) That statute requires that 
 the census shall be taken and returned to the Secretary of the Interior on or before the 1st day of 
 November next ensuing the 23d day of May, 1850, the date of the act. The statute then provides, 
 section 23, "If no other law shall be passed providing for the taking of the Eighth or any subsequent 
 census of the United States on or before the 1st day of January of any year, when, by the Constitution 
 of the United States, any future enumeration of the inhabitants thereof is required to be taken, such 
 census shall in all things be taken and completed according to the provisions of this act." No other 
 provision for the Eighth Census has been made. 
 
 ' Second session Thirty -seventh Congress, Journal, pp. 6, 7; Globe, pp. 2, 4. 
 
 ^ The three were elected on a general ticket, and it appears that Mr. Lowe received the smallest 
 vote of the three. 
 
 ^ House report No. 79.
 
 I 314 THE ELECTORS AND APPORTIONMENT. 183 
 
 The statute then proceeds to provide, before the census is taken, for the then next apportionment 
 to be based upon the census not yet taken, and for all further apportionments, as follows' 
 
 "Sec. 25. From and after the 3d day of March, 1853, the House of Representatives shall be com- 
 posed of 233 Members, to be apportioned among the several States in the manner directed in the next 
 section of this act. 
 
 "Sec 26. So soon as the next and each subsequent enumeration of the inhabitants of the several 
 States, directed by the Constitution of the United States to be taken, shall be completed and returned 
 to the office of the Department of the Interior, it shall be the duty of the Secretary of the Interior to 
 ascertain the aggregate representative population of the United States, by adding to the whole number 
 of free persons in all the States, including those bound to service for a term of years, and excluding 
 Indians not taxed, tliree-fifths of all other persons; which aggregate population he shall divide by the 
 number 233, and the product of such division, rejecting any fraction of a unit, if any such happen to 
 remain, shall be the ratio or nde of apportionment of Representatives among the several States under 
 such enumeration; and the said Secretary of the Department of the Interior shall then proceed in the 
 same manner to ascertain the representative population of each State, and to divide the whole number 
 of the representative population of each State by the ratio already determined by him as above directed; 
 and the product of this last division shall be the number of Representatives apportioned to such State 
 imder the then last enumeration." 
 
 The law further directed the Secretary of the Interior, "without delay" to 
 make out and transmit to the executive of each State a certificate of the number 
 of Representatives the State would be entitled to. And the Secretary of the Inte- 
 rior notified the governor of California that he had apportioned three Representa- 
 tives to the State for the Thirty-eighth Congress. The State, however, concluded 
 that they were entitled to them for the Tliirty-seventh Congress under the law. 
 
 The majority of the committee held that the claim was based upon too strict 
 and narrow a construction of the law of 1850. That law, as a whole, was intended 
 to provide "that each subsequent census and apportionment should be made pre- 
 cisely as was provided in that statute for those then about to be made." And the 
 law of 1850, therefore, should be held to mean that the time of future apportion- 
 ments should correspond to that therein provided, the apportionment taking effect 
 March 3, 185.3. So the next apportionment should take effect March 3, 1863. The 
 committee felt that every reasonable rule of construction suggested this conclusion. 
 The committee say: 
 
 So far as the committee have been able to ascertain from the cotemporaneous history, or the discus- 
 sions in either House on its passage, or any subsequent criticism of it, till the present case has arisen, the 
 idea never occurred to anyone that it provided, in this regard, one rule for the census of 1850 and conse- 
 quent apportionment and a different one for any subsequent census and apportionment. On (he other 
 hand, there is much reason, if not constitutional obligation, tliat the rule should be the same for all, and 
 that the last apportionment having been fixed to take effect "from and after the 3d day of March, 1853," 
 the next should not take effect till ten years thereafter, or from and after the 3d day of March, 1863. 
 The apportionment must follow and be based upon the census. The Constitution says Representatives 
 shall be apportioned among the several States "according to their respective numbers;" and to ascer- 
 tain these numbers the same section provides that "the actual enumeration shall be made within three 
 years after the fhst meeting of the Congress of the United States, and within every subsequent term of 
 ten years, in such manner as they shall by law direct." The Constitution evidently contemplated a 
 census only once in ten years, and consequently a new apportionment based upon such census only once 
 in ten years. The time when the First Census should be taken was not fixed, only it must be "within 
 three years after the first meeting of the Congress of the United States." Now, Congress did provide for 
 taking the First Census in 1790, the next in 1800, and in 1810, and in 1820, 1830, 1840, and 1850. So 
 Congress has also provided by legislation, once in every ten years, that the apportionment, based upon
 
 184 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 314 
 
 each one of these enumerations, respectively, shall take effect "from and after the 3d day of March, 
 1793," "from and after the 3d day of March. 1803," and from and after the same day in 1813, 1823, 1833, 
 1843, and 1853. In the absence of express enactment to the contrary, the committee can not doubt that 
 it was likewise the intention of Congress, in providing for the Eighth Census, to provide that it shall be 
 taken in 1860, and that the apportionment based upon it, like all that had preceded it, should take 
 effect in the corresponding year, viz, from and after the 3d of March, 18G3. If it be held that apportion- 
 ments of Representatives can not be made oftener than a Federal census is taken, and that the Constitu- 
 tion requires that that shall be taken only once in ten years, then it follows that the apportionment based 
 upon the census of 1860 can not take effect till the 4th of March, 1863; else the period between the last 
 two apportionments would be eight instead of ten years, while the period between all the rest would be 
 ten years. 
 
 All construction of the constitutional obligation upon Congress to provide by law for the several 
 "enumerations," and the apportionments based upon them, is uniform, and the course of legislation is 
 without any conflict, all uniting in forcing upon the committee the construction they put upon this 
 statute, that its intendment is that the apportionment based upon the census of 1860 shall take effect 
 from and after the 3d of March, 1863. 
 
 The committee then discussed the inconveniences of any other construction 
 were the same rule contended for by CaUfomia appUed to other States. 
 The committee say further : 
 
 But this Congress has, by positive enactment, declared when, in its opinion, the apportionment 
 based upon the census of 1860 shall take effect. In an act passed only the last month, to modify that 
 apportionment and give to several States therein named a greater number of Representatives than the 
 apportionment under the statute of 1850 had given them. Congress has expressly enacted that the act 
 shall take effect from and after the 3d day of March, 1863. 
 
 The minority of the committee, laying stress on the mandate that the ^Secretary 
 of the Interior transmit "without delay" to the States certificates of the numbers 
 of Representatives they were entitled to, and upon their inability to find any pro- 
 vision of the statute to prevent the apportionment taking effect immediately, con- 
 tended that the apportionment applied to the Thirty-seventh Congress. Moreover, 
 an act of July 30, 1852, provided that California should retain the number of Rep- 
 resentatives provided by the act of admission to the Union ' ' until a new apportion- 
 ment." Congress also had apportioned a direct tax to California on the basis of the 
 census of 1860. Could she, under the Constitution, be deprived of the Representa- 
 tives allowed by that census? 
 
 Either California was entitled to three Representatives or none by virtue of the 
 last election. All were elected on a general ticket, and the minority could not see 
 how Messrs. Phelps or Sargent could retain their seats if Mr. Low be excluded. It 
 was a well-settled rule of the House "that if any State return more Members than 
 she is entitled [to], the election is void, and all must be excluded." 
 
 As to another argument of the majority, the minority urged that States, like 
 individuals, could not be deprived of their legal rights because others failed to ask 
 for theirs. 
 
 The report was debated on May 6,' and on the same day the question was taken 
 on a substitute proposition declaring Mr. Low entitled to the seat. This was 
 disagreed to — yeas 49, nays 69. 
 
 1 Globe, pp. 1967-1971.
 
 § 315 THE ELECTORS AND APPORTIONMENT. 185 
 
 Then the resolution of the committee declaring Mr. Low not entitled to the 
 seat was agreed to without division.* 
 
 On June 2, 1862, an act of Congress^ was approved, reciting the fact that Cali- 
 fornia had population sufficient for three Representatives, that three had been 
 duly elected, as appeared by the governor's certificate, and that direct taxes had 
 been apportioned on a basis to justify three Representatives; and therefore increas- 
 ing the representation of the State to three Members for the Thirty-seventh Congress. 
 
 On June 3, in accordance with this act, Mr. Low appeared and took the oath.^ 
 
 315. The Tennessee election case of Thomas A. Hamilton in the 
 Fortieth Congress. 
 
 The House did not give prima facie effect to credentials regular in 
 form but borne by a person in addition to the number of Representa- 
 tives allowed the State. 
 
 Instance wherein the House denied the privileges of the floor to a 
 claimant for a seat. 
 
 On December 7, 1868,'' Mr. Horace Maynard, of Tennessee, presented the creden- 
 tials of Thomas A. Hamilton as a Member-elect from the State of Tennessee at larse. 
 It was explained that Tennessee thought herself entitled to this additional Repre- 
 sentative because of the large number of colored people she had voluntarily admitted 
 to citizenship. It was admitted that this Representative would be in addition to 
 the number allowed Tennessee by the law of Congress. 
 
 No proposition was made to administer the oath to Mr. Hamilton, although his 
 credentials were regular in form; and they were referred to the Committee of Elec- 
 tions without division. 
 
 Mr. Maynard moved, however, that he be allowed the privileges of the floor 
 pending the decision of his claim. After debate as to the precedents, this motion 
 was decided in the negative — ayes 45, noes 85. 
 
 316. The Tennessee election case of Thomas A. Hamilton, continued. 
 The House denied the claim of a State to representation greater than 
 
 the apportionment had given to her when the reasons for such claim 
 applied to many other States. 
 
 Discussion of the constitutional questions relating to apportionment. 
 
 Review of the acts of Congress giving increased representation in 
 special cases. 
 
 On February 18, 1869,° Mr. Samuel Shellabarger, of Ohio, submitted the report 
 of the committee, who were imanimously of the opinion that in the absence of an 
 act of Congress increasiag the representation of the State the claimant could not be 
 admitted. 
 
 ' Journal, pp. 647, 648. 
 
 ■ 12 Stat. L., p. 411. 
 
 'Journal, p. 787; Globe, p. 2532. 
 
 * Third session Fortieth Congress, Journal, pp. 8, 9; Globe, pp. 8, 9. 
 
 « House Report No. 28; 2 Bartlett, p. 499; Rowell's Digest, p. 228; Globe, pp. 1329, 1330.
 
 186 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 316 
 
 As to the advisability of passing an act the committee divided. The majority 
 held that such a law should not be passed. They said : 
 
 Mr. Hamilton rests his claim to a seat, and his demand that a law shall be passed, upon substantially 
 the following facts and considerations: 
 
 That in 1865 the people of Tennessee voluntarily emancipated their slaves, and thereby added 
 two-fifths of these, being by the census of 18G0 110,287, to the representative population of that State 
 and making the entire representative population of the State now 1,009,801, assuming that it is the same 
 as shown by that census; that this entitles the State to 9 Representatives, retaining the same ratio of 
 representation (127,000) as that upon which the apportionment was made in 1861. 
 
 It is urged that this being done when it was, and voluntarily by act of the people, and being accom- 
 panied by enfranchisement of the colored race, distinguishes the claim of Tennessee for the represen- 
 tation of her freed people from the States where the enfranchisement was subsequent and the result of 
 Federal coercion. It is also claimed that the second article of the fourteenth amendment, making the 
 rights of representation to be in proportion to the numbers of the voting races, sustains this claim. It is 
 further urged that the refusal of it would dishearten the freedmen of Tennessee, who are alleged to regard 
 the claimant as especially their representative, and would be disastrous to their interests as a race, now 
 in especial need of the recognition and protection of their Government. 
 
 Upon substantially these considerations, as is alleged , the general assembly of Tennessee, on the 12th 
 of March, 1868, adopted a joint resolution requiring the governor " to issue a writ of election, to the State 
 at large, for the purpose of electing one additional Member to the Congress;" and the claimant presents 
 the certificate of the governor showing that on the first Tuesday of November, 1868, the claimant waa 
 elected by the people of the State at large a Representative of the State of Tennessee in the Fortieth 
 Congress. 
 
 After citing the clause of the Constitution relating to apportionment the report 
 
 says: 
 
 What, then, is the legislation of the Constitution upon this subject, and what the rule by which it 
 has bound the powers and discretions of this House and of the Congress? These are plain, unambiguous, 
 and complete. Those requirements of this rule which are material to be here considered are — 
 
 First. That the apportionment must be made to each of the several States. The Congress, by other 
 provisions of the Constitution, has the power to determine when a Territory or people are such in numbers 
 or in organization or in attachment to the Government of the United States as to be fit or entitled to be 
 admitted as one of "the several States included in the Union." But being so admitted and recognized 
 by Congress as such State, the Congress has no discretion as to the apportionment to such State of repre- 
 sentation, but must accord representation to each State so admitted and recognized by Congress. 
 
 Second. This apportionment must be based on the " numbers" of the Federal populations. Whether 
 it should be based on numbers only, and if so, who should be counted in the enumeration, was a matter 
 of the most profound concern in the convention which framed the Constitution, and one which came 
 near defeating its formation. It was only after such a struggle as this that "numbers " was adopted as 
 the basis of representation, and its importance and the duty of having strict regard to it is indicated 
 by the history of its adoption. 
 
 Third. In making the apportionment on this basis of "numbers," there must be apportioned to each 
 one of the several States that proportion or part of the aggregate membership of the House of Represent- 
 atives which that State has of the aggregate representative population of the United States. 
 
 Fourth. The enumeration upon which the apportionment is based must be the one required to 
 be taken within every term of ten years in such manner as the Congress shall by law direct. 
 
 The committee proceed: 
 
 Having regard, then, to these controlling requirements of the Constitution, the majority of your 
 committee finds it difficult to discover any authority by which Congress shall assign to one of the several 
 States an increase of representation on account of its increased numbers of representative population, 
 and yet withhold it from other States shown to the same Congress, at the same time, and by the same 
 known and historic events, to have had a similar or greater increase of Federal numbers. Indeed, this 
 would be so plainly a disregard of the evident requirements of the Constitution and of the rules of equality
 
 § 316 THE ELECTORS AND APPORTIONMENT. 187 
 
 of representation secured by it to the several States, that it need not be considered by the committee; 
 and so plain that this was not, in terms, demanded by the claimant or bj' the Representative from Tennes- 
 see before the committee. And hence it is that the claim of Tennessee in this case is vindicated and 
 pressed upon tlie favor of the House upon the ground, mainly, that the claim of Tennessee is distin- 
 guishable from what could be demanded by tlie other late slave States. This distinction is rested, as 
 we have already stated, upon the alleged fact that in 1865, during the recent rebellion, and in aid of 
 its suppression, the slaves of that State were, by the voluntary act of the people, emancipated, 
 enfranchised, and added to the representative numbers within such State, while in all the other 
 States the emancipation and enfranchisement and addition to Federal pojjulation was, on the part of 
 the people, involuntary and by the coercions of the war. Something is also claimed by Tennessee in 
 virtue of the fourteentli constitutional amendment, as we have above stated. 
 
 In regard to this last claim, based upon the second section of the fourteenth amendment, it is suffi- 
 cient for the purposes of the present inquiry to say that it can have no possible effect upon the conclu- 
 sions reached in this case unless it be the effect of leading to a reapportionment of Representatives to 
 each of the several States in the Union. 
 
 Neither in the fourteenth amendment nor in the voluntary emancipation of 
 the slaves does the committee find justification for special action in the case 
 of Tennessee. 
 
 As to the precedents, the majority say: 
 
 It is, of course, not only impossible to find a precedent in former legislation for a case like this, 
 but it is equally impossible to resist the conclusion that if this addition to the representative population 
 of the States is to be recognized as entitling one State to increased representation now, then the magni- 
 tude of the accession to the Federal population is so great as to compel a reapportionment of the entire 
 representation in the House if any respect is to be paid to the rule that Representatives are to be appor- 
 tioned to each State according to "numbers." In dealing with this addition to representative popula- 
 tion the Congress is not dealing with mere fractions of a representative population, but with a population 
 entitled to elect more than one-twentieth part of the entire membership of this House. In dealing with 
 such a large and often controlling proportion of the vote of this House, it can not be that the Constitution 
 permits Congress to exercise any discretions such as must be by necessity exercised in disposing of a 
 mere fraction of a representative population in a State. And this is in accordance with all legislative 
 precedents upon this subject. These precedents involve and sustain the following propositions, namely: 
 
 1. That "the Constitution evidently contemplated a census only once in ten years, and consequently 
 a new apportionment, based upon such census, only once in ten years." (See Low's case, 1862, Con- 
 tested Elections, 421, approved by the House without division.) 
 
 2. "The census and apportionment thus connected together in the Constitution, have been con- 
 nected together in all subsequent legislation of Congress." 
 
 3. "There can be no such thing as one State represented according to one apportionment and under 
 one census, and another State according to some other apportionment biised on another census. The 
 whole number of Representatives and the numlier for each State are both fixed by law, and by the same 
 law. There can not be one law for one State and another law for another." (See same case, p. 423.) 
 
 4. All former special acts of apportionment have been passed, at least professedly, to supplement 
 the acts of general apportionment and to complete the equality of that apportionment to and among 
 each and every one of the several States; and no act was ever passed which contemplated or recognized 
 any other State as being left without its just proportion of representation as contrasted with what was 
 accorded, by the special and the general law, to every other State. On the other hand, the proposed act 
 in favor of Tennessee does propose to accord to Tennessee alone increase of representation upon a principle 
 and on behalf of a population which would equally entitle other States to a like or greater increase, and 
 yet it denies the increase to the other States. 
 
 After reviewing the precedents, especially the California case, the majority 
 conclude : 
 
 It will be seen that each of them, instead of being a precedent for allowing a State increased repre- 
 sentation upon a claim which applied with equal force in favor of other Slates, and which other States the 
 special act left unprovided for, are cases where the act assumed that all the other States were alreadv
 
 188 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 316 
 
 more fully represented than the States provided for in the special act, and that such act was required to 
 complete the equality of representation as between each one and all of the several States. 
 
 Of course, the numerous acts admitting new States, and giving them the representation their "num- 
 bers" entitle them to, are in no sense analogous to this proposed bill, because these acts did not leave 
 any other States not equally represented with the new State. What is deemed by the committee the 
 fatal objection to the proposed bill is that it gives Tennessee an additional Member on the ground of 
 the addition of 110,287 to her representative numbers by the abolition of slavery, while it passes by, 
 neglects, and refuses to give, and thereby denies, additional Members to the other States now represented 
 in this House, who have added nearly ten times that number to their numbers by the very same event 
 and fact which added them in Tennessee. It can not be successfully claimed that acts admitting new 
 States and giving them their due representation, when every other State was fully represented, and 
 represented equally with the newly admitted State, can furnish the slightest authority or a precedent 
 for such a wrong as this one done by the proposed bill. 
 
 The conunittee also refer to the fact that the applicant was elected from the 
 State at large, and criticise it as in violation of a law of Congress. 
 
 The minority of the committee ' contended that the law asked for might with 
 propriety be passed. After discussing the general laws on the subject of apportion- 
 ment, they enumerate the special acts : 
 
 The act of February 25, 1791, chapter 9, gave 2 Representatives each to Kentucky and Vermont, 
 until there should be "an actual enumeration of the inhabitants of the United States." By the act of 
 June 1, 1796, chapter 47, Tennessee was admitted to the Union, with 1 Representative "until the next 
 general census." The act of April 30, 1802, chapter 40, enabled Ohio to form a State, and gives her 1 
 Representative "until the next general census." 
 
 The act of April 8, 1812, chapter 50, admitting Louisiana, gives her 1 Representative "until the 
 next general census." The act of April 19, 1816, chapter 57, enables Indiana to form a State govern- 
 ment, and until the next general census entitles her to 1 Representative. She was admitted to the 
 Union by joint resolution December 11, 1816. A similar act was passed for Mississippi March 1, 1817, 
 chapter 33, and a similar joint resolution December 10, 1817; also for Illinois, April 18, 1818, chapter 
 67, and December 3, 1818; and for Alabama, March 2, 1819, chapter 47, and December 14, 1819. 
 
 The act of April 7, 1820, chapter 39, reduced the number of Representatives in the Seventeenth 
 Congress from the State of Massachusetts to 13, and gave the remaining 7 to the recently formed State 
 of Maine. 
 
 The general apportionment act of March 7, 1822, gave to Alabama 2 Representatives. The fol- 
 lowing year a special act, January 14, 1823, chapter 2, gave her an additional Member upon fuller infor- 
 mation as to the number of her inhabitants. The act of March 6, 1820, chapter 22, enables Missouri 
 to form a State government, with 1 Representative until the "next general census." She was admitted 
 to the Union by joint resolution March 2, 1821. 
 
 The act of June 15, 1836, chapter 100, admitted Arkansas to the Union, with 1 Representative "until 
 the next general census." 
 
 The legislation by which Michigan was admitted to the Union was attended with much difficulty. 
 It will be found in the acts of June 15, 183G, chapter 99, of June 23, 1836, chapter 121, and of January 
 26, 1837, chapter 6, and its difficulties are illustrated by the debates of the two Houses. In the present 
 purpose it is deemed sufficient to refer to section 3 of the act of June 15, 1836, which provides that as 
 soon as the people of Michigan should have complied with certain fundamental conditions the Prcsi. 
 dent should announce the same by proclamation; and thereupon, without further action of Congress, 
 "the Senators and Representatives who have been elected by said State" should be entitled to 
 take their seats without further delay, nothing appearing Ln the statutes to indicate the number of 
 Representatives. 
 
 The act of March 3, 1845, chapter 48, for the admission to the Union of Iowa and Florida, provides 
 that "until the next census and apportionment" each State be entitled to 1 Representative. Iowa 
 
 ' Those concurring in the minority view were Messrs. David Heaton, of North Carolina, H. I,. 
 Dawes, of Massachusetts, John H. Stover, of Missouri, and S. Newton Pettis, of Pennsylvania.
 
 § 316 THE ELECTORS AND APPORTIONMENT. 189 
 
 was not, in fact, admitted under this act and not until near the close of the following year, act of Decem- 
 ber 28, 1846, chapter 1; but no further provision was made for her representation. 
 
 The joint resolution of December 29, 1845, chapter 1, admits Texas to the Union, with 2 Repre- 
 sentatives until the next apportionment. 
 
 The act of August 6, 1846, chapter 89, enables the people of Wisconsin to form a State government, 
 with 2 Representatives "until another census" and apportionment. 
 
 The act of September 9, 18.50, chapter 50, admits California to the Union, with 2 Representatives 
 until the next apportionment. Before that time the Seventh census was taken pursuant to the act of 
 May 23, 1850, and California declares, by virtue of her ascertained numbers, to be still entitled to 2 
 and only 2 Representatives; and yet Congress thought proper, by act of June 2, 1862, chapter 91, for 
 reasons appearing in the body of the act, to accord to her 1 additional Representative in the Thirty- 
 seventh Congress. 
 
 The act of February 26, 1857, chapter 60, enables the people of Minnesota to form a State government , 
 and provides for the taking of a census in the Territory with a view to ascertain the number of Represent- 
 atives to which, as a State, she would be entitled. The act of May 11, 1858, chapter 31, admits her to 
 the Union, with 2 Representatives " until the next apportionment." 
 
 The act of February 14, 1859, chapter 33, admits Oregon to the Union, with 1 Representative "until 
 the next census and apportionment." 
 
 The act of May 4, 1858, chapter 26, providing for the admission to the Union of Kansas, under the 
 Lecompton constitution, and that of January 29, 1861, chapter 20, admitting her under the Wyandotte 
 constitiition, both declare her entitled to 1 Representative "until the next general apportionment." 
 
 The act of December 31, 1862, chapter 6, erects a portion of the State of Virginia into the new State 
 of West Virginia, with 3 Representatives, leaving unchanged the number to which Virginia is entitled. 
 
 The act of March 21, 1864, chapter 36, enables the people of Nevada to form a State government, 
 with 1 Representative "until the next general census;" and, on the 19th of April, 1864, an act similar 
 in all respects was passed by the people of Nebraska, under which acts both States have been admitted 
 to the Union, completing the present number, 37. 
 
 These various acts have been collated at some pains, to show how completely the number of Repre- 
 sentatives in the House has been contested, at the discretion of Congress, a discretion scarcely less abso- 
 lute than that of each House over "the elections, returns, and qualifications of its own Members." 
 
 This is illustrated by the arbitrary, nay, artificial numbers, at which the ratio was successively fixed, 
 by allowing Representatives for the fractions of the ratio, by the admission of new States with 1, 2, 
 3, or more Representatives according to their estimated populations, by reducing the representation 
 of a State whose population had been reduced by the excision of part of her territory, by increasing the 
 representation of States, as in the case of Alabama and California, when it was manifested that their 
 population had been under estimated, and by determining the aggregate number of the House and requir- 
 ing our executive officer to make the apportionment among the several States. 
 
 It is illustrated even more forcibly, if possible, by the act of March 4, 1862, chapter 36, which 
 increases the number of Representatives from 233, the number established by the general law of May 23, 
 1850, to 241, giving to Pennsylvania, Ohio, Kentucky, Illinois, Iowa, Minnesota, Vermont, and Rhode 
 Island, each 1 additional Member, to which they were not entitled under the general law. 
 
 In a word, these acts establish the general proposition that Congress has complete jurisdiction to 
 adjust the representative numbers of the House, and has repeatedly and constantly exercised it at 
 discretion, according to the varied equity of each particular case. 
 
 In conclusion the minority say: 
 
 The precedents cited as bearing upon the case are as weighty and significant as they are singularly 
 numerous. It is believed they have not been or can not be successfully met or explained away. These 
 pointed examples of the unreserved exercise of legislative authority are in themselves a powerful 
 warrant for the course which has been pursued by Tennessee. The vital point in the matter, however, 
 is that Tennessee has not only followed "the line of safe precedent," but has conformed strictly to the 
 true intent and meaning of the fourteenth article of the Constitution. 
 
 The fact that Tennessee happens to be the first State to claim the practical application of the inesti- 
 mable rights conferred in said article should not be regarded as anomalous or involving a precedent of 
 doubtful or "dangerous policy."
 
 190 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § '^17 
 
 Objections founded upon any such reasoning are altogether likely to he speculative and fallacious, 
 and lead to great injustice and wrong. 
 
 To admit the correctness of the somewhat sweeping statement that the admission of the claimant 
 would be "a most dangerous precedent," would certainly be a most severe commentary upon many of 
 the deliberate acts of the Congresses preceding the present. 
 
 In the present instance Tennessee claims no right or privilege she would not willingly concede to 
 any other State having a similar record. 
 
 If, upon a fair investigation of the grounds upon which she bases her right to an additional Repre- 
 sentative, it is found her cause rests upon merit and justice, and is sustained by unquestionable authority, 
 her demand should receive a prompt and favorable response. To deny to her a manifest constitutional 
 right upon the questionable and untenable objection that some other State may set up a similar claim, 
 would surely afford abundant grounds for criticism, and come in direct antagonism with the policy here- 
 tofore maintained and pursued by Congress. 
 
 The report was not acted on by the House. 
 
 317. The Tennessee election, case of John B. Rodgers in the Forty- 
 first Congress. 
 
 The House denied the claim of a State to representation greater than 
 the apportionment had given to her when the reasons for such claims 
 applied to many other States. 
 
 The Clerk declined to enroll a person, bearing regular credentials, but 
 claiming to be a Representative in addition to the number apportioned to 
 his State. 
 
 The House did not give prima facie effect to regular credentials borne 
 by a person claiming a seat in addition to those assigned to a State by 
 law. 
 
 On the organization of the House on March 4, 1869,' Mr. John B. Rodgers, of 
 Tennessee, appeared with credentials showing him to have been elected as Repre- 
 sentative-at-large in Tennessee. The Clerk did not put him on the roll of Members- 
 elect, nor did the House subsequently order the oath to be administered to him, 
 the law apportioning Members not allowing a place for him in the Tennessee dele- 
 gation. His credentials, however, were referred to the Committee on Elections, 
 and on April 7 ' Mr. David Heaton, of North Carolina, presented the report of the 
 majority of the committee. After citing the precedents in relation to apportion- 
 ment, the report says: 
 
 The case of Tennessee is this; According to the census of 1860, the inhabitants of the United States, 
 reckoning all free persons and three-fifths of all others, numbered 29,553,273. Divide by 241, the 
 number of Members now composing the House, it gives 122,627 as the present representative ratio. 
 Tennessee had 834,082 free inhabitants, white and colored, and 275,719 slaves, a total of 1,109,801. 
 Three-fifths of her slaves, however, added to her free population, on the principle of the representative 
 enumeration, made 999,514, by virtue whereof she has now 8 Representatives. 
 
 In February, 1865, she, by voluntary act, a popular vote, manumitted and emancipated her 275,719 
 slaves, nearly one-fourth of her population. Two-fifths of this number, 110,288, are thereby added to 
 those already entitled to representation. This, with a previous representative fraction, leaves 128,785 
 for which the State has no Representative, counting only the population as it was in 1860. This excess 
 of popular numbers over the number of her present Representatives is not the result of growth or natural 
 increase, in which the several parts of the countrj' are presumed to keep pace, at least until the contrary 
 is demonstrated by the census, but of a great political act as conspicuous and distinctive as would be 
 
 ' First session Forty-first Congress, Journal, p. 5; Globe, pp. 38, 100. 
 2 House Report No. 12; 2 Bartlett, p. 941;
 
 §317 
 
 THE ELECTOKS AND APPORTIONMENT. 191 
 
 the annexation of a foreign territory containing so many people. For the purpose of this inquiry it is as 
 if the boundaries of Maine were by treaty extended to embrace Nova Scotia, with 110,288 inhal^itants. 
 Is it equitable and just that they should be denied a Representative? The undersigned think not. 
 
 Since the voluntary action of Tennessee in emancipating her slaves Congress has taken not only 
 an important step toward settling the status of American citizenship, but also indicating a further proper 
 basis of representation. On the 16th of June, 186(5, what is known as Article XIV was submitted to the 
 legislatures of the different States. On July 20, 1868, this article was formally proclaimed as a part of 
 the Constitution of the United States by the Secretary of State. The second section of said article, to 
 which particular attention is invited, reads as follows: 
 
 "Sec 2. Representatives shall be apportioned among the several States according to their respective 
 ntmibers, counting the whole number of persons in each State, excluding Indians not taxed. But when 
 the right to vote at any election for the choice of electors for President and Vice-President of the United 
 States, Representatives in Congress, the executive and judicial officers of a State, or the members of the 
 legislature thereof is denied to any of the male inhabitants of such State, being twenty-one years of age, 
 and citizens of the United States, or in any way abridged, except for participation in rebellion or other 
 crime, the basis of representation therein shall be reduced in the proportion which the number of such 
 male citizens shall bear to the whole number of male citizens twenty-one years of age in such State." 
 
 This section, though general in its terms, was adopted with particular reference to the recently 
 emancipated colored population, and is a declaration to the several States in which this population is 
 found that if they are enfranchised the State shall be represented accordingly; if not, representation shall 
 be diminished. It either means this or is a mockery and means nothing. 
 
 As soon as possible after the promulgation of the proposed amendment — on the 16th of June, 1866 — 
 Tennessee convened her legislature and ratified it. She then changed her franchise laws to conform to 
 the spirit of this amendment by removing from all colored people within her boundaries all civil and 
 political disabilities and conferring upon them the right to elect and to be elected to every office from 
 the highest to the lowest. Having done this, and the fourteenth article having become valid as a part of 
 the Constitution, what was before a claim for full and complete representation, resting in the discretion of 
 Congress, became now an absolute constitutional right. For it must be borne in mind always that this 
 action of Tennessee has been her own, independent and in advance of executive proclamations, constitu- 
 tional amendments, and reconstruction acts. She has met all the conditions of the Constitution in a 
 spirit of the most cheerful loyalty, and has created in her favor an obligation which can not be canceled 
 by being denied. 
 
 Her legislature, viewing the matter in this obvious light, has by appropriate action provided for the 
 election of an additional Representative. On the 3d day of November, 1868 — the day of the late Presi- 
 dential election, and the day designated by law for the election of Members of Congress in Tennessee — 
 the people of that State, fully impressed that they were fairly entitled to an additional Representative, 
 proceeded to elect, and did elect, the Hon. John B. Rodgers to the Forty-first Congress. 
 
 It was a matter of general notoriety in Tennessee, some time before it occiured, that such an election 
 would be held. The people of the State were duly advertised of the fact by the act of the legislature and 
 executive proclamations. The friends of the present applicant for a seat brought him forward as a candi- 
 date at a popular convention, unusually largely attended, at the capital of the State. The popular will 
 was fully reflected at the polls in the fact that the applicant received nearly as many votes as were cast in 
 that State on the same day for the prevailing Presidential electoral ticket. The places for voting in this 
 case were the same as those at which votes were given by persons of different political proclivities for dif- 
 ferent candidates for Congress and candidates for electors for President and Vice-President. Retiu-ns of 
 the result in different counties were made in due form to the secretary of state, as appears in official 
 documents duly certified to. On these returns credentials in due form were issued. 
 
 The report urges that Tennessee has conformed to the requirements of the 
 fourteenth amendment, and because she was the first State so to do should not 
 count agamst her. 
 
 Therefore, the majority recommended the enactment of a law to increase the 
 representation of Tennessee by one. 
 
 The minority of the committee call attention to the fact that the additional
 
 192 PRECEDENTS OF THE HOUSE OF KEPRESENTATIVES. § 317 
 
 seat may be claimed on the authority of no existing law, and deny that the facts and 
 precedents justify the passing of such a law: 
 
 The provision of the Constitution of the United States which regulates representation is as follows: 
 
 "Representation and direct taxes shall be apportioned among the several States which maybe 
 included within the Union according to their respective numbers, which shall be determined by adding 
 to the whole number of free persons, including those bound to serv ce for a term of years, and excluding 
 Indians not taxed, three-fifths of all other persons. The actual enumeration shall be made within three 
 years after the first meeting of the Congress oi the United States, and within every subsequent term of ten 
 years, in such manner as they shall by law direct. The number of Representatives shall not exceed one 
 for every thirty thousand, but each State shall have at least one Representative." 
 
 The second section of the fourteenth article of amendments to the Constitution relates to the same 
 subject, and modifies, to some extent, so much of the above as relates to representation, and is as follows: 
 
 "Sec. 2. Representatives shall be apportioned among the several States according to their respective 
 numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when 
 the right to vote at any election for the choice of electors for President and Vice-President of the United 
 States, Representatives in Congress, the executive and judicial officers of a State, or the members of the 
 legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, 
 and citizens of the United States, or in any way abridged, except for participation in rebellion or other 
 crime, the basis of representation therein shall be reduced in the proportion which the number of such 
 male citizens shall bear to the whole number of male citizens twenty-one years of age in such State." 
 
 While these provisions differ as to the manner in which the representative numbers in the States 
 shall be ascertained, they agree in providing that Representatives shall be apportioned among the States 
 according to these numbers, and we have thus a definite and absolute rule established, according to which 
 apportionment shall be made, and which forbids any assignment of Representatives to any State for any 
 other reason, and which requires that if representation be given to one State equal proportionate repre- 
 sentation shall be given to any other State similarly situated in respect of its representative numbers or 
 population. 
 
 The provision of the Constitution first above quoted also provides the means for making the appor- 
 tionment so required, by requiring that once in ten years an actual enumeration shall be made; and it 
 would follow, by fair implication, that a reapportionment should only be made after such enumeration 
 had shown its necessity. The practice of the Government has been unifonnly in accordance with this 
 view since the adoption of the Federal Constitution. 
 
 After each decennial census, and at no other time, a new apportionment of Representatives has been 
 made among the States, and to each State according to its Representative population as fixed by the 
 Constitution and ascertained by the census. 
 
 The legislation of Congress admitting new States forms no exception to this rule, since under the 
 Constitution they may be admitted at any time, and by the provision above quoted each must have 
 at least 1 Representative; but, subject to this last provision, the number of Representatives allowed 
 to each new State has always been the number to which it was supposed to be entitled by its represent- 
 ative population, upon the ratio of the last preceding apportionment. The act of March 4, 1862, by 
 which the aggregate membership of the House was increased from 233 to 241, and 1 additional member 
 was given to each of the States of Ohio, Pennsylvania, Kentuclcy, Illinois, Iowa, Minnesota, Vermont, 
 and Rhode Island, and also the acts of January 14, 1823, and of June 2, 1862, by which Alabama and 
 California were each allowed a member in addition to the number previously apportioned to them 
 also, are not exceptions, since the first was passed to give representation to large fractions of represent- 
 ative population which would otherwise be unrepresented, and the last two were intended to correct 
 errors arising from insufficient census returns in the apportionment previously made to those States. 
 
 We have no right, therefore, under the Constitution and the uniform practice of our legislative 
 history, to give representation to the 110,287 slaves in Tennessee, as shown by the census of 1860, who 
 were excluded from making a part of the representative population of that State under the Constitution 
 as it stood in 1860, but who, as freemen, if now living in that State, would, under the same Constitu- 
 tion, be a part of such representative number, without at the same time providing for equal representa- 
 tion to the 1,469,92.5 persons in other States, who, slaves then, have since become free. The fact that 
 the slaves of Tennessee became freemen by the voluntary act of the people of the State, while those
 
 § 318 THE ELECTORS AND APPOKTIONMENT. 193 
 
 of other States were made such without the assent and against the will of the people of those States, 
 can not affect the question, since it is the fact of their freedom, and not the manner in which they 
 became free, which alone has any legal significance in the case. 
 
 It is no answer to this objection that no other State than Tennessee asks for this additional repre- 
 sentation. It is the duty of Congress to apportion Representatives among the States according to their 
 respective numbers, and this whether the States ask for it or not; and to give additional representation 
 to Tennessee, while withholding it from States equally entitled to it, and upon facts equally within 
 our knowledge, would be a violation of this duty. 
 
 The passage of such a general law at this time would not be proper, since the adoption of the four- 
 teenth amendment has given a new rule for ascertaining representative numbers, and Representatives 
 are required to be apportioned among the several States according to those numbers. No enumeration 
 heretofore made of the people of the United States would enable us to ascertain the present represent- 
 ative numbers of the several States. Such an enumeration, however, must be made under the Con- 
 stitution before the close of the next year. Then, and not till then, can an apoortionment be made such 
 as the Constitution now requires. 
 
 There is another consideration to which the minority deem it proper to call attention, and which 
 seems to answer fully the equitable ground for this claim, urged on the part of the State of Tennessee. 
 
 The next census will undoubtedly show a very large increase of the population of the United States. 
 This increase has been added, almost entirely, to the population of the States which were loyal during 
 the war, and were not slave-holding States at its commencement. During the war the immigration 
 to this coimtry was excluded from the Southern States by the blockade, and by the presence of our 
 armies, and since has been almost equally excluded by the distracted condition of those States. 
 
 The loss of life and the check to the increase of population from other causes is also believed to 
 have been much greater in the States which were the immediate seat of hostile operations. We do 
 not believe that anyone will seriously question that the apportionment of 1862, based upon the census 
 of 1860, gives to each of the lately slave-holding States a larger proportionate representation than they 
 would be entitled to upon an enumeration made at the present time, and according to the rule by 
 which such representation must now be made. To yield the claim of Tennessee would increase this 
 disproportion, and would be unjust to the States which were faithful to the Union through all its trials 
 and who by their fidelity saved the Republic. 
 
 Therefore the minority recommend that the question be deferred until after the next census. 
 
 The report in this case was never acted on, but on March 1, 1871/ the House 
 discharged the committee from furtlier consideration of the subject and agreed to 
 a resohition compensating Mr. Rodgers for his expenditures in presenting his case. 
 
 318. The Virginia election case of Joseph Segar in the Forty-first 
 Congress. 
 
 After the division of Virginia the House recognized a division of the 
 old representation bet^ween the t^vo States, without specific provisions of 
 law. 
 
 The House declined to give prima facie effect to credentials regular in 
 form, relating to a seat, in addition to those to which the State was 
 entitled. 
 
 After reconstruction the credentials of all the Virginia delegation 
 were referred before the bearers were admitted. 
 
 At the second session of the Forty-first Congress the Members-elect of the 
 Virginia delegation were not permitted to take the oath imtil their credentials were 
 examined by the Committee on Elections. Then all were sworn in except Mr. 
 
 ' Third session, Journal, p. 449; Globe, p. 1801. 
 5994— VOL 1—07 13
 
 194 PRECEDENTS OF THE HOUSE OF EEPEESENTATIVES. § 318 
 
 Joseph Segar, who had been elected for the State at large, as was made plain by his 
 credentials : 
 
 To all whom it. may corxcern: 
 
 This is to certify that at an election held in and for the State of Virginia by the voters registered 
 under the act of Congress of March 2, 1867, entitled "An act to provide for the more efficient govern- 
 ment of the rebel States," and the act supplementary thereto and amendatory thereof, upon the ques- 
 tion of ratifying or rejecting the constitution framed by the convention called under the authority of 
 said laws, and at which election it was provided by the 2d section of the law of April 10, 1869, that 
 the voters of said State may vote for and elect members of the general assembly of said State, and all 
 the officers of said State provided for by the said constitution, and Members of Congress, Joseph Segar 
 was duly elected at large as a Representative to the Congress of the United States. 
 
 Given under my hand, at Richmond, Virginia, this 9th day of September, 1869. 
 
 Ed. R. S. Canby, 
 Brevet Major-General, U. S. A., Commanding First Military District. 
 
 On March 29, 1870,' Mr. Halbert E. Paine, of Wisconsin, from the Committee 
 on Elections, to whom Mr. Segar's credentials had been referred, submitted their 
 report. 
 
 Mr. Segar, as one of his claims, had insisted that the certificate ought to be 
 conclusive as to his right to the seat ' ' imless in case of contest or of the allegation 
 of fraud or of palpable clerical mistake." The report says: 
 
 This assumes, of course, that the seat itself is provided for by law. But that is the very question, 
 and the only question in this case, and to that question the committee are constrained to give a negative 
 answer. 
 
 Eight Representatives from Virginia had already been seated, and Mr. Segar 
 would, if seated, make the ninth. The report of the majority of the committee 
 thus sets forth the case: 
 
 The census act of May 23, 1850, contains the following provision: 
 
 "Sec 24. And be it further enacted, That from and after the third day of March, one thousand eight 
 hundred and fifty-three, the House of Representatives shall be composed of two hundred and thirty, 
 three members, to be apportioned among the several States in the manner directed in the next section 
 of this act." 
 
 And by the twenty-fifth and twenty-sixth sections of the same act it is provided that, upon the 
 completion of each enumeration of the inhabitants of the United States, the Secretary of the Interior, 
 after ascertaining from the census returns the representative population of the United States, and of 
 the several States, shall apportion the Representatives among the several States, and "shall, as soon as 
 practicable, make out and transmit, under the seal of his office, to the House of Representatives, a 
 certificate of the number of Members apportioned to each State under the then last enumeration." 
 Under this act the census of 1860 was taken, and the Secretary of the Interior transmitted his certificate 
 to the House. 
 
 Under this apportionment the Secretary of the Interior allotted to Virginia 1 1 
 Representatives . 
 
 The report continues: 
 
 On the 31st day of December, 1862, an act was passed providing for the admission of the new State 
 of West Virginia, to consist of 48 counties of Virginia, and to have, until the next general census, 3 
 Representatives in the House of Representatives of the United States, which act was, by its own terms, 
 to take effect at the expiration of sixty days from the date of a proclamation of the President therein 
 provided for. 
 
 'Second session Forty-first Congress, House Report No. 51; 2 Bartlett, p. 810; Rowell's Digest 
 p. 253.
 
 § 318 THE ELECTORS AND APPORTIONMENT. 195 
 
 Subsequently the following joint resolution was adopted: 
 
 "Be it resolved by the Senate and House of Representatives of the United States of America in Congress 
 assembkd. That Congress hereby recognizes the transfer of the counties of Berkeley and Jefferson from 
 the State of Virginia to West Virginia, and consents thereto. 
 
 '•Approved March 10, 1866." 
 
 The returns of the census of 1860 show that the representative population of the present State of 
 Virginia was a little less than eight-elevenths of the entire representative population of the old State, 
 including the counties now constituting West Virginia. While, however, the representative population 
 of the counties constituting the present State of Virginia was not quite sufficient to entitle the State to 
 8 of the 11 Representatives apportioned to the old State, it was considerably more than sufficient to 
 entitle it to 7 of them, so that the assignment of 8 to Virginia and 3 to West Virginia was the nearest 
 practicable approach to an absolutely just distribution of the representation. 
 
 In no case have the acts providing for the readmission of the rebel States to the Union embraced 
 any legislation changing or fixing the number of Representatives of the readmitted State. In every 
 case the State has been readmitted with the number of Representatives fixed by the certificate of the 
 Secretary of the Interior transmitted to the House under date of July 5, 1861. 
 
 The number of Representatives assigned to the old State of Virginia by the apportionment of 1861 
 was, as has been already stated, 11. The number assigned to West Virginia by the act of admission 
 was 3. In the opinion of the committee, the persent State of Virginia is by law entitled to only 8 Rep- 
 resentatives, and the law requires that those shall be chosen by single districts. 
 
 The minority ^•iews were presented by Mr. Job E. Stevenson, of Ohio, the com- 
 mittee having been nearl}' evenly divided. The minority say — 
 
 Under the apportionment of Representatives in Congress, on the census of 1860, the State of Virginia 
 was entitled to 11 Members. No law has been enacted affecting this apportionment, unless the recon- 
 struction acts relative to that State can be so constructed. 
 
 The acts and proceedings creating and admitting the new State of West Virginia are silent on this 
 question. They fix the number of Representatives from the new State, but do not touch the topic of 
 representation from Virginia. 
 
 It seems to be assumed that because the new State was formed from the side of the old. therefore 
 the act of Congress gi^^ng West Virginia the right to 3 Representatives reduced the quota of Virginia 
 from 11 to 8; but we respectfully submit that no such important conclusion can be properly or safely 
 implied from laws containing neither sylla!;le nor letter to support it; and that such latitude of construc- 
 tion would overthrow all rights founded upon statutes. 
 
 If the apportionment on the census of 1860 applies at all, it must be accepted in its terms, and 
 entitles the State of Virginia to her full quota of 11 Representatives, instead of 9 elected or 8 admitted. 
 
 A technical objection may be based upon the provision of the act of June 25, 1842, reenacted 
 in subsequent acts: 
 
 "That in each State entitled in the next and any succeeding Congress to more than one Representa- 
 tive, the number to which such State is or may be hereafter entitled shall be elected by districts com- 
 posed of contiguous territory, equal in number to the number of Representatives to which said State 
 may be entitled in the Congress for which said election is held, no one district electing more than one 
 Representative." 
 
 If this provision were deemed applicable, we might answer the objection by showing that it has 
 never been observed, and is not now observed by this House. 
 
 In the Twenty-eighth Congress, the first after this pro\-ision was enacted, the House admitted 20 
 Members at large from the States of New Hampshire, Georgia, Mississippi, and Missouri, respectively, 
 and voted that they had a right to their seats. (See Con. Elect. Cases, 2, p. 47.) 
 
 In the Thirty-fifth Congress, in 1858, the House decided "That the election of members by general 
 ticket instead of by district is not a bar to admission to seats in the House." (See case of Phelps and 
 Cavanaugh, Con. Elect. Cases, 2, p. 248.) 
 
 That case was from a newly admitted State, and therefore analogous to this of the readmission of a 
 reconstructed State with changed boundaries. But the most striking case is that of the State of Illinois, 
 which has been, ever since the Thirty-eighth Congress, and is now, represented in this House by
 
 196 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 318 
 
 Member at large notwithstanding this provision, the proviso allowing her a Representative at large 
 having expired with the Thirty-eighth Congress. See act of July 14, 1862, which contains the following: 
 
 "And provided further, That in the election of Representatives to the Thirty-eighth Congress from 
 the State of Illinois, the additional Representative allowed to said State by an act entitled 'An act 
 fixing the number of the House of Representatives from and after the third day of March, eighteen 
 hundred and sixty-three,' approved March fourth, eighteen hundred and sixty-two, may be elected by 
 the State at large, and the other thirteen Representatives to which the State is entitled by the districts, 
 aa now prescribed by law in said State, unless the legislature of said State should otherwise provide 
 before the time fixed by law for the election of Representatives therein." 
 
 But it is not deemed necessary to dwell upon this point, because it seems obvious that the general 
 act is not applicable to a reconstructed State when a change of circumstances calls for special action. 
 
 The claimant further urged that he was entitled to admission because of 
 providons of the law of Congress taken in connection with certain ordinances of the 
 constitutional convention of Virginia. These ordinances districted the State and 
 provided for a ninth Representative at large. Unlike the constitution itself the 
 ordinances were not ratified by the people. 
 
 Claimant urged that the Congress by approving generally the proceedings of 
 reconstruction in Virginia, of which the ordinances were a part, had approved 
 the Representative at large. The majority of the committee denied this, holding 
 that the chain of law was not perfect. 
 
 Another point was answered as follows: 
 
 3. The claimant cites the following provision of the act which took effect on the 11th day of March, 
 1868: 
 
 "Sec. 2. And be it further enacted, That the constitutional convention of any of the States mentioned 
 in the acts to which this is amendatory may provide that, at the time of voting upon the ratification of 
 the constitution, the registered voters may vote also for Members of the House of Representatives of the 
 United States, and for all elective officers provided for by the said constitution; and the same election 
 officers who sliall make the return of the votes cast on the ratification or rejection of the constitution shall 
 enumerate and certify the votes cast for Members of Congress. 
 
 And he insists that the authority conferred by this act carries with it the power, first, to district the 
 State, and, secondly, to fix the numtier of its Representatives; and that these two powers stand on the 
 same footing. But the power to district a State, in accordance with the Federal apportionment, is, by 
 section 4 of Article I of the Constitution of the United States, confened upon the State, subject to the 
 control of Congress, whereas the ])ower to fix or alter the number of Members of the House of Representa- 
 tives of the United States is vested exclusively in the Federal Government, and even if there is doubt 
 whether a State can exorcise the power to district its territory for the election of Representatives other- 
 wise than through its ordinary legislature, there is no doubt that a State can not exercise the power to fix 
 the size of the Federal House of Representatives, whether through its ordinary legislature, or its consti- 
 tutional convention, or in any other way. 
 
 As to the argument that Virginia was entitled to additional representation 
 because she had many thousands of newly enfranchised citizens, the majority 
 of the committee denied that this fact entitled Virginia to representation at once, 
 since the same theory would give immediately increased representation to the other 
 reconstructed States. 
 
 The majority reported the following resolution: 
 
 Resolved, That Joseph Segar is not entitled to a seat aa a Representatives of the State of Virginia 
 at large in the Forty-first Congress of the United States.
 
 § 319 THE ELECTORS AND APPORTIONMENT. 197 
 
 On July IP the report was considered in the House. After debate a propo- 
 sition was offered by the minority declaring Mr. Segar entitled to the seat. This 
 was disagreed to — ayes 31, noes 85. 
 
 The resolution of the majority declaring Mr. Segar not entitled to the seat was 
 then agreed to without division. 
 
 319. Reference to the claim of Nebraska for additional representation. — 
 On February 24, 1SS3,- the House finally disposed of the claim of Nebraska for 
 additional representation on accoimt of alleged defects in the census on which the 
 apportionment was based. The House found that its committee had been imposed 
 on and took action to bring the authors of the imposition to the attention of the 
 authorities. 
 
 'Journal, p. 1216; Globe, pp. 5450-5455. 
 
 ^Second session Forty-seventh Congress, Record, pp. 3247-3252.
 
 Chapter IX. 
 ELECTORATES INCAPACITATED GENERALLY. 
 
 1. Effect of informalities in the election. Sections 320-323.' 
 
 2. Intimidation and its effects. Sections 324-341.- 
 
 3. Principles involved in Senate decisions as to competency of legislatures. Sections 
 
 342-360. 
 
 320. The North Carolina election case of McFarland c Purviance, in 
 the Eighth Congress. 
 
 The invalidity of an election in one county out of three did not jus- 
 tify declaring the seat vacant. 
 
 On February 29, 1804,^ the Committee on Elections reported on the North Caro- 
 hna contested election case of McFarland v. Purviance. The committee found that 
 in one county of the district the inspectors and clerks refused to take the oath pre- 
 scribed by the State law that they should act with justice and impartiahty. There- 
 fore the committee conceived that for this reason the election in the county should 
 be set aside. 
 
 The committee did not find the result in the remainder of the district success- 
 fully attacked, and therefore concluded that there was not sufficient legal testimonj' 
 to vacate the seat of Samuel D. Purviance, although the result in one county had 
 been set aside. 
 
 The House did not act on tliis report. 
 
 321. The North Carolina election case of McFarland v. Culpepper, in 
 the Tenth Congress. 
 
 An election being found invalid in three out of five counties in the 
 district, the House declared the seat vacant, declining to seat the con- 
 testant. 
 
 Early instance of rejection of the returns because election officers did 
 not take the required oath. 
 
 The Committee on Elections rejects testimony taken ex parte. 
 
 ' See also McDuffie v. Davidson, section 1007 of Volume II. 
 
 - See also cases of Bruce i'. Ijoan (section 377 of this volume), case of Hoge, Reed, and others (section 
 622 of this volume), and case of Switzler v. Anderson (section 8GS of Volume II). 
 
 ' First session Eighth Congress, contested elections in Congress, from 1789 to 1834, page 131. 
 198
 
 § 322 ELECTORATES INCAPACITATED GENEKALLY. 199 
 
 In the Xorth Carolina election case of McFarland v. Culpepper, in 1808/ the Com- 
 mittee of Elections, after setting forth the law of the State and the testimony, give 
 in their report the following statement, which covers very well the principles on 
 which the case was decided: 
 
 No full official lists of the polls, or number of votes given to the parties contesting, were laid 
 before the committee, but both parties agree that the sitting Member had 2,750, and that Duncan 
 McFarland had 2,701: that consequently John Culpepper had a majority of 49 votes. 
 
 From the above recited testimony, admitted by the conmiittee, it appears that the inspectors and 
 clerks officially employed in conducting the elections in Richmond, Anson, and Montgomerj^ counties do 
 not appear to have been sworn as the law of North Carolina expressly directs, and that the votes given 
 in some of these counties, and at some elections in other counties, not being received by officers legally 
 qualified, ought to be rejected.- On rejecting the returns of Richmond, Anson, and Montgomery coimties, 
 in which it appears, by the list of voters and testimony admitted, that John Culpepper had a majority 
 of 1,578 votes, gives to Duncan McFarland a large majority of votes in these counties. Some depositions 
 were taken before the committee respecting the elections in Moore County, taken at the instance of a 
 friend of John Culpepper, in his absence; but though they go to prove that the elections in Moore County 
 were not conducted agreeably to law, yet, being taken ex parte, they were not admitted. 
 
 From the testimony admitted it appears that John Culpepper is not entitled to a seat in the House, 
 he not having a majority of votes legally taken; but though Duncan McFarland appears to have a large 
 majority of votes taken agreeably to law, yet the committee are of opinion that the truth of this is doubt- 
 ful: they are the more confirmed in this opinion from the sitting Member having expressed his opinion 
 that if he had time allowed him to make a scrutiny he would prove the elections held in the other 
 counties were also conducted contrarj- to law. 
 
 The committee, however, believing that the great object for which the power of judging the elections 
 of Members was vested in Congress, was to secure to the people a representation of the majority of the 
 citizens, the elections of Richmond, Anson, and Montgomery being rejected, give a majority of the 
 votes given in Moore and Cimiberland counties to Duncan McFarland, viz, a majority of two counties 
 out of five, which comprise the Congressional district, and the votes of three counties are lost. 
 
 The committee are of opinion that, even presuming the votes in Moore and Cumberland to have 
 been legally taken, it would be improper to deprive the other three counties of a representation for the 
 fault of their election officers, etc., therefore think it most proper to give the citizens of that district an 
 opportunity to have another election, and for this purpose submit the following resolution: 
 
 "Resolved, That from the testimony laid before and admitted by the committee it appears that 
 John Culpepper is not entitled to a seat in this House." 
 
 The House having concurred in this resolution, the governor of Xorth Carolina 
 was notified of a vacancy in the House from that district. 
 
 322. The Kentucky election case of Blakey /■. Golladay, in the For- 
 tieth Congress. 
 
 Although the claimant for a seat presented unimpeachable creden- 
 tials, the House declined to seat him until it had determined that the 
 seat was actually vacant. 
 
 Instance of an election case initiated by memorial from the person 
 claiming- the seat. 
 
 In an election case not provided for by statute the House by resolution 
 determined the conditions of its prosecution. 
 
 The House by resolution made certified transcripts of records evi- 
 dence in an election case. 
 
 ' First session Tenth Congress, Contested Elections in Congress, from 1789 to 1834, page 221. 
 ^See also Section 320 for another early instance of rejection of the returns in a case wherein the 
 election officers did not take the required oath.
 
 200 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 322 
 
 A resolution providing for the prosecution of an election case is pre- 
 sented as a question of privilege. 
 
 On July 5, 1867/ Mr. William D. Kelley, of Pennsylvania, presented the 
 memorial of George D. Blakey, praying to be admitted as a Member from Kentucky. 
 The memorial was referred to the Committee on Elections. 
 
 On July 11, 1867,^ Mr. Halbert E. Paine, of Wisconsin, offered, as a question of 
 privilege, the following: 
 
 ^\^lereas George D. Blakey asks for admission to this House as a Representative from the Third 
 district of Kentucky, and his competitor, Elijah Hise, having died before the votes were canvassed, 
 and no other person claiming a seat in this House as a Representative of said district, this case is not 
 provided for by any statute of the United States, but is subject to the provisions of the Constitution: 
 Therefore, 
 
 Resolved, That in this case transcripts of official records and fOes, and of extracts therefrom and 
 abstracts thereof, duly certified under seal by the clerks of the several county courts in said district, 
 shall be competent evidence before the Committee of Elections and before this House of the facts therein 
 shown. 
 
 The question of order being raised that this resolution did not involve a ques- 
 tion of privilege, the Speaker^ said: 
 
 Everything affecting the right of a Member to a seat is a question of privilege. 
 
 Thereupon the resolution was agreed to; yeas 92, nays 34. 
 
 On November 21, 1867,* papers in the case of Mr. Blakey, as contestant, were 
 presented in the House and referred. 
 
 On November 25, 1867,' the Speaker laid before the House a certificate in 
 regular fonn from the governor of Kentucky, setting forth that at an election held 
 in the Third Congressional district of that State on August 5, 1867, J. S. Golladay 
 received a majority of the votes cast and was duly elected Representative in the 
 Fortieth Congress. 
 
 Mr. Henry L. Dawes, of Massachusetts, moved that the credentials be referred 
 to the Committee of Elections, and that the said Golladay be not sworn in pending 
 the investigation of the same. 
 
 It was explained that the Committee of Elections were not considering the 
 claim of Mr. Blakey that he should be seated on the groimd that he had received 
 a majority of the legal votes, although a majority of the votes actually cast were 
 fotmd to be for the late Mr. Hise. The governor of Kentucky had assumed that 
 there was a vacancy and had ordered an election; but the House was now investi- 
 gating whether or not there was a vacancy. If Mr. Golladay should now be sworn 
 in, and the House should later find that Mr. Blakey had been elected, the House 
 would have two men in the same seat or Mr. Golladay would be unseated without 
 having had the opportunity to present his case. On the other hand, it was urged 
 that Mr. Golladay had the only prima facie evidence, and that he was entitled to 
 take the seat pending the examination of final right; but the House agreed to the 
 motion of Mr. Dawes; yeas 105, nays 38. 
 
 'First session Fortieth Congress, Journal, p. 187; Globe, p. 591. 
 
 ^ First session Fortieth Congress, Journal, p. 165. 
 
 ^Schuyler Colfax, of Indiana, Speaker. 
 
 ■•Journal, p. 255. 
 
 'Journal, p. 257; Globe, pp. 782-784.
 
 § 323 ELECTORATES INCAPACITATED GENEEALLY. 201 
 
 323. The Kentucky election case of Blakey v. Golladay, continued. 
 
 An election invalid in 11 out of 12 counties, leaving only 737 valid 
 votes out of 8,941, should cause the seat to be declared vacant. 
 
 The exclusion of a disloyal Member-elect wo\ild not allow a minor- 
 ity candidate to take the seat. 
 
 The death of the person elected creates a vacancy, although no cer- 
 tificate may have been a.warded. 
 
 The person elected dying before credentials are issued, the minority 
 candidate may not receive the credentials. 
 
 On December 2, 1867,' ilr. Henry L. Dawes, of Massachusetts, from the Com- 
 mittee on Elections submitted a report, which stated the case as follows: 
 
 The right of these two claimants to the same seat depends upon the validity of elections held at 
 difierent times, and it therefore becomes necessary to determine in the first instance upon the legality 
 of the election first held, for if the one which is first in point of time be valid the other can not be. 
 
 The claim of Mr. Blakey that he was duly elected such Representative rests upon the following 
 facts: 
 
 An election for Representatives to the present Congi-ess was ordered by the governor of Kentucky 
 to be held on said 4th day of May last. The claimant, Mr. Blakey, and the Hon. Elijah Hise were 
 candidates for Representatives in the Third district, and were voted for at that election. On the 27th 
 of the same month the governor, attorney-general, and State auditor, who constitute by law a board of 
 canvassers for counting the votes, met in pursuance of law for that piupose and certified the result of 
 the vote on the 4th to be, m this district: For Elijah Hise, 7,740; for G. D. Blakey, 1,201. 
 
 After the election and before this canvass, to wit, on the 8th day of said May, the said Elijah Hise 
 died, and Mr. Blakey claimed before the board of canvassers, and renews his claim before the House, 
 that he was entitled to the certificate of election and to retain the seat as such Repre.sentative. 
 
 First, because at the tune of said canvass, he, the said Blakey, was the only person then alive for 
 whom votes had been cast for such Representative. In this the claimant has, in the opinion of the 
 committee, wholly mistaken the function of the board of canvassers. The sole duty of the board is to 
 ascertain the result when the polls closed on the day of election. They can in no way or particular 
 change or alter that result, but only ascertain and make it known. If the claimant had not, when the 
 polls closed, a majority of the votes legally cast, nothins: transpiring subsequently could give htm that 
 majority. If Elijah Hise had that majority when the polls closed, that fact is unalterably fixed. It 
 is sometimes quite difficult to ascertain who actually had such majority at the close of the polls, but 
 the determining of that fact determines all else pertaining to the election. A vacancy occasioned by 
 the death of one who has received a majority of the legal votes can not depend upon whether he had 
 or had not received a certificate of his election before his decease. The certificate is not his title to 
 his seat, but simply one form of evidence thereof. 
 
 Second, he further claims the seat because, "by the laws of Kentucky governing elections, the 
 judges and other officers of the county courts in said State, in the appointment of officers to hold and 
 conduct elections in said State, are required to appoint officers representing the two political parties 
 in the State, and that each political party should be represented in the officers of every election pre- 
 cinct. " This provision of law, he claims, was almost totally disregarded in 11 out of the 12 counties 
 composing this district, thereby rendering illegal the election in those counties, and that in the other 
 coimty, where this provision was complied with, he received a majority of the votes cast. 
 
 After quoting the provisions of law relating to the appointment of election 
 officers, the report considers the evidence adduced to sustain this second objection. 
 Contestant showed by the poll books that but 23 of the election officers voted for 
 him, while 210 voted for Mr. Hise, and 57 did not vote at all. The conunittee say 
 that obviously the poll books of this election could not have been consulted by the 
 
 ' Second session Fortieth Congress, House Report No. 1; 2 Bartlett, p. 417; Rowell's Digest, p. 221.
 
 202 PEECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 324 
 
 county courts, for the appointments were made lono; before this election. No evi- 
 dence was offered to show how these officers voted at the election next preceding 
 their appointment. In fact, there was no evidence sufficient to show that the pro- 
 visions of the law were disregarded. But it was really not necessary for the com- 
 mittee to determine this, for assuming that contestant's contention was right as to 
 the 11 counties, yet — - 
 
 In the remaining county, where it is claimed the law was complied with, and the election therefore 
 valid, there were cast only 737 out of 8,941 votes; and of these 737, Mr. Blakey received 378, to 359 for Mr. 
 Hise, leaving only a majority in this county for Mr. Blakey of 19. Of the whole vote in the district, as 
 has been already stated, he received only 1,201. If, therefore, the election was invalid in 1 1 out of the 12 
 counties, rendering it impossible to count but 737 votes out of 8,941, no other alternative would be left 
 but to set aside altogether such an election, and remand the case back again to the people, that they 
 might have an opportunity to give expression to their choice in conformity to law. There is no precedent 
 for fixing upon the district representation determined by 378 votes out of 8,941, and the committee see 
 no reason for making one. 
 
 The third ground of contestant, that Mr. Hise was disloyal, was not sustained 
 by evidence; and furthermore, the committee were not called on to consider the 
 legal effect of the proposition had it been sustained, since the exclusion of a disloyal 
 person did not allow a minority candidate to take the seat. 
 
 The committee therefore arrived unanimously at the following conclusion: 
 
 The only objection to the administering the oath of olfice and admission to the seat of Mr. GoUaday, 
 known to the committee, being the claim of the memorialist to be entitled to the seat by virtue of a prior 
 election, this disposition of that claim removes all obstacle, and, in the opinion of the committee, Mr. 
 Golladay should be admitted to the oath of office and to the seat. 
 
 The committee recommend the adoption of the following resolutions: 
 
 Resolved, That George D. Blakey is not entitled to a seat in this House as a Representative from the 
 Third Congressional district in Kentucky. 
 
 Resolved, That the oath of office be now administered to J. L. Golladay, and that he be admitted to 
 a seat in this House aa a Representative from the Third Congressional district in Kentucky. 
 
 The report was debated on December .5, and on that day the resolutions of the 
 committee were agreed to without division, a demand for the yeas and nays having 
 been refused. A proposition to recommit with instructions to examine as to the 
 loyalty of both ^lessrs. Hise and Golladay had been prevented by the previous ques- 
 tion, which was ordered by 102 ayes to 22 noes. 
 
 324. The Maryland election case of Whyte v. Harris in the Thirty- 
 fifth Congress. 
 
 In a report not approved by the House the Elections Committee 
 recommended that a seat be vacated because of intimidation in five-sixths 
 of the district. 
 
 In a case not sustained by the House a question of the degree of intim- 
 idation sufficient to justify rejection of the poll was discussed. 
 
 An early discussion as to what constituted a distinguishing mark 
 on a ballot. 
 
 The Elections Committee having recommended a declaration that the 
 seat be declared vacant, a question arose as to contestant's position. 
 
 On June 1, 1858,' the Committee on Elections reported in the case of Whyte v. 
 
 ' First session Thirty-fifth Congress, H. Report No. 538; I Bartlett, p. 257; Rowell's Digest, p. 156.
 
 § 324 ELECTORATES INCAPACITATED GENERALLY. 203 
 
 Harris, of ilaiyland. The contestant had alleged frauds, intimidations, and irregu- 
 larity. The majority of the committee based its conclusions chiefly on two 
 features of the case, alleged widespread intimidation in Baltimore City, and 
 distinguishing marks on the ballots cast for sitting Jlember, whereby intimida- 
 tion of liis opponents was rendered feasible. 
 
 The majority of the committee give in their report copious extracts of testi- 
 mony showing this intimidation. The minority showed that Mr. Harris had a 
 majoritj" of 3,243 votes in the city wards and of 75 in the districts outside the city. 
 They contended that the evidence in relation to intimidation was too vague. 
 Names of persons alleged to have been intimidated were given, but it was nowhere 
 shown that they would have voted for the sitting Member. Moreover, much of 
 the evidence as to persons intimidated was inadmissible because hearsay in its 
 nature. 
 
 The majority of the committee, after stating that a case of riot and intimidation 
 was new in election cases before Congress, quotes Enghsh precedents to show that 
 violence and tumult were sufficient reasons for declaring an election void. In the 
 American cases of Trigg v. Precsott and Biddle and Richard ik Wing notliing like 
 a riot or obstruction was shown at the polls. The majority of the committee say: 
 
 Having, then, no case heretofore presented to this House involving a decision as to what extent 
 violence, intimidation, and riot may prevaO at elections to -n-arrant a vacation of a seat, we can only 
 refer to the numerous precedents which we find settled by other elective bodies, and to the plain 
 teachings which we derive from our Constitution and theory of government. 
 
 In the judgment of the Committee of Elections, these require the return in this case to be set aside 
 and the seat vacated. It can not be considered the return of an election made by the legal voters of 
 the Third Congressional district of Marjdand. An election is the free choice by those who have the 
 right to make it, and who desire and seek to make it, uncompelled, unawed, and unintimidated. The 
 return here was based upon votes alleged to have been cast in that Congressional district. The proofs 
 show that at the first eight wards in the city of Baltimore, and at the twelfth election district of Balti- 
 more County (comprising about five-sixths of the returned votes), in some to a much greater extent 
 than others, but in all to a most culpable extent, violence, tumult, riot, and general lawlessness pre- 
 vailed. That, as a consequence, the reception of illegal votes and the rejection of legal votes, the 
 acts of disturbance and assault committed on peaceable citizens, and the intimidation of voters so 
 predominated as to destroy all confidence in the election as being the expression of the free voice of 
 the people of that Congressional district. 
 
 The committee are not unmindful of the magnitude of the question they present to the considera- 
 tion of the House. On the one hand it involves the vacation, temporarily, of a seat in the House of 
 Representatives; on the other, it requires an acquiescence in, if not approval of, a wanton and unjusti- 
 fiable interference with the most sacred of aU political rights to a free people. 
 
 The minority did not admit that there had been serious riot or intimidation, 
 and contended that it would be a dangerous precedent to overrule the expressed 
 will of the people becau.se of violence at the polls. 
 
 The majority of the committee further state that the tickets used by the party 
 of the sitting Member (the American) were distinguished by a number of red per- 
 pendicular stripes across them. The majority conceived that this was a violation 
 of the spirit of the law providing for a ballot system, one of the great objects of 
 which was to allow the elector to make his choice by a secret vote. Such was the 
 intent of the Maryland law. While it might be going too far to reject such ballots, 
 unless so provided by law, yet their use was neither creditable nor just, since it 
 permitted intimidation.
 
 204 PRECEDENTS OF THE HOUSE OF KEPRESENTATIVES. § 325 
 
 The minority say on tliis point: 
 
 The constitution of the State of Marj'land, article 1, section 2, provides that ' ' the vote shall be by 
 ballot;" and the act of assembly regulating elections, 1805, chapter 97, section 12, provides "that 
 upon the ballot shall be written or printed the name or names of the persons voted for, and the purpose 
 for which the vote is given, plainly designated." It is not pretended that this was not done, and we 
 can not for a moment admit that the marks on the ticket, or the color of the paper on which the name 
 and office are thus pjlainly designated, have anything to do with the legality of the vote cast, or are to 
 be held as infringing the law of the State. 
 
 The majority of the committee, in view of the considerations given above, 
 recommended the following: 
 
 Resolved, That it appears to this House that there was such tumult, disorder, riot, intimidation, 
 and inj\istice, in the election of a Representative to Congress from the Third Congressional district of 
 the State of Maryland, on the 3d day of November last, in contempt of law and in violation of the 
 freedom of elections, that the said election is void, the seat from the said district is hereby declared 
 vacant, and the Speaker of this House be and is directed to notify the governor of said State thereof. 
 
 The minority arrived at the conclusion that the sitting member was entitled 
 to the seat. 
 
 The case was not debated in the House on its merits. On July 11,' near the 
 close of the session, the case was postponed until the next session, by a vote of 96 
 yeas to 80 nays. 
 
 At the next session, on December 15 and 16,^ the report was called up. 
 
 A question arose over the reqiiest of Mr. Wliyte that he have leave to occupy 
 a seat on the floor and speak on the merits of the contest. 
 
 It was objected that he was no longer a contestant and not entitled to the 
 privilege under the precedents; and it appeared, in fact, that he did not consider 
 himself a contestant. 
 
 The House, by a vote of yeas 108, nays 90, laid on the table a resolution giving 
 to Mr. Whyte the privilege asked. 
 
 Then the report of the conunittee was, without debate on its merits, laid on 
 the table by a vote of 106 yeas and 97 nays. 
 
 So the sitting member retained his seat. 
 
 325. Tlie Maryland election case of Harrison v. Davis in the Tliirty- 
 sixth Congress. 
 
 Discussion of the extent of intimidation sufficient to invalidate an 
 election and justify declaring the seat vacant. 
 
 On January 31, 1861,^ the Committee on Elections reported in the case of 
 Harrison v. Davis, of Maryland. This case was examined, and there were reports 
 from the majority and minoritj^ of the comnxittee; but no action was taken by 
 the House on the recommendation of the majority, which was in favor of the sitting 
 Member. 
 
 The principal objection of the contestant was that there had been sufficient 
 riot and intimidation to invalidate the whole election. 
 
 'Journal, p. 1089; Globe, pp. 2961-2964. 
 
 2 Second session Thirty-fifth Congress, Journal, pp. 72, 77; Glol)e, pp. 102, 120. 
 ^ House Report No. 60, second session Thirty-sixth Congress, 1 Bartlett, p. 341; Rowell'a Digest, 
 p. 168.
 
 § 326 ELECTORATES INCAPACITATED GENERALLY. 205 
 
 The majority of the committee found by a comparison ^\-ith previous national 
 and State elections that the a^iregate vote of the district at this election of 1859 
 was 12,932, Avhile in 1857 it was 14,494, and in 1855 it was 15,481. The conmiittee 
 did not consider the decrease sufficient to be significant; and as the majority of the 
 sitting Member was returned as 7,272, it seemed evident that whatever voters 
 might have been intimidated would not have been sufficient to change the result. 
 As to the law applicable, the majority say: 
 
 We have now to consider the question whether the election is void by reason of riot and intimida- 
 tion. The specification Ls, that in all the wards bands of men conspired to exclude and obstruct legal 
 voters who intended to vote for the contestant, and did, in fact, assemble at and near the voting places 
 armed, and by threats intimidated and by A'iolence obstructed and drove away thousands of legal voters, 
 and deterred many from approaching the polls. 
 
 That statement, considered as an allegation of facts which, if proved, avoid the election in point of 
 law, is wholly insufficient. 
 
 It nowhere makes the formal allegation that the law requires: Either that the election was arrested 
 and broken up in every ward, or that so many individuals were excluded by violence and intimidation 
 as would, if allowed to vote, have given the contestant the majority. 
 
 Either of those grounds, if stated and proved, would have been, in law, decisive of the case; but 
 neither is stated in the specification, and neither is proved by the evidence. 
 
 The case attempted to be made is one wholly different from either, and wholly unknown in the 
 annals of election law. 
 
 It assumes that an election is necessarily void at which 2,000 Aoters are prevented by violence 
 or threats of violence from voting — though the election was never arrested, and though 20,000 may 
 have been cast, and all for one candidate, which is absurd. 
 
 The minority of the committee opposed this view. From their analysis of the 
 testimony they concluded that riot and intimidation were general throughout the 
 district, and say: 
 
 But the law obviates the necessity of inquiring as to the number of votes affected by riot, violence, 
 and intimidation, holding the whole election dead when robbed of that freedom which is its soul and 
 life. If there was "actual force or violence, or a display of numerical strength, accompanied with threats, 
 and the conduct of the parties was such as to strike terror into the mind of a man of ordinary firmness, 
 and to deter him from proceeding to the poll" (Gushing, sec. 183), the election must be "declared a 
 nullity. And such it unquestionably was at all the polls. » * * The election must, therefore, be 
 declared a nullity. 
 
 Other questions relating to disqualified voters and the conduct of election 
 officers were discussed, but they were subordinate to the main issue. 
 
 326. The Louisiana election cases of Jones r. Mann and Hunt v. 
 Menard in the Fortieth Congress. 
 
 A Member whose seat was contested dying, the House did not admit 
 a claimant with credentials until contestant's claim was settled. 
 
 The disqualification of a Member-elect does not entitle a minority 
 candidate to the seat. 
 
 Instance of returns of an election made by military oflicers under 
 authority of reconstruction acts. 
 
 Testimony taken before a notary public in disregard of the provisions 
 of law was criticised by the Elections Committee, but given weight. 
 
 A contestant neglecting to prove the vote of the district, the Elections 
 Committee had recourse to such oflacial records as it deemed satisfactory.
 
 206 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 326 
 
 On July 18, 1868/ Mr. James Mann, with other Members-elect from Louisiana, 
 was sworn in and took liis seat. He died about the I'itli daj' of August. Mr. Simon 
 Jones had served notice of contest on Mr. Mann, allegmg frauds, irregularities, and 
 intimidation in the wards of New Orleans lying within the district. While the 
 Committee on Elections was considering this contest, on December 18, 1868, and 
 January 5, 1869," the credentials of J. Willis Menard, showing him to have been 
 elected in place of Mr. Mann, were presented to the House and referred to the Com- 
 mittee on Elections. No effort was made to have Mr. Menard sworn in, Mr. Jones's 
 title to fill the vacancy not being settled. 
 
 On February 17, 1869,^ the committee reported both on the contest of Mr. Jones, 
 and on the claim of Mr. Menard, whose title was contested by Caleb S. Hunt. 
 
 1. As to the contest of Mr. Jones several questions arose for the decision of 
 the committee: 
 
 (a) The contestant objected that all the testimony taken in behalf of Mr. Mann 
 was inadmissible because taken before a notary public, an officer not authorized ' 
 by the act of Congress to take testimony in such cases. This objection was taken 
 in the first instance and returned with the testimony, and the committee find that 
 it is good under a strict construction of the law. The committee say, however, 
 that the view the committee have taken of the case does not render it very material 
 whether the testimony be admitted or not, and as Mr. Mann was dead and some 
 of the testimony related to his eligibility, they had not deemed it proper to exclude 
 it, but would submit it to the House. 
 
 (b) A question as to the quahfications of Mr. Mann is thus disposed of: 
 
 But the contestant and his counsel further insist that Mr. Mann was constitutionally ineligible for 
 the reason that he was not " when elected " an inhabitant of the State of Louisiana (Constitution. Art. I, 
 sec. 2, cl. 2), and that the contestant, if he only received the next highest number of votes, should be 
 declared elected, and the votes cast for Mr. Mann should be disregarded. In support of this position 
 it is suggested on his part that, in the absence of any American precedent for this course, the faithful 
 execution of the fourteenth amendment requires the establishment of such a precedent, and that, if 
 voters may choose disqualified members, representation may be defeated in many States. 
 
 The committee does not consider the evidence adduced by the contestant in regard to Mr. Mann's 
 residence or domicile (Mis. Doc. No. 13, pp. 20, 29, 30) sufficiently clear and conclusive to justify it in 
 declaring Mr. Mann constitutionally ineligible at the time of his election, even if the evidence on the part 
 of Mr. Mann were rejected; but it is not necessary to decide upon this question of ineligibility, since, 
 if Mr. Mann were admitted to have been ineligible at the time of holding the election, and the evidence 
 of this held to be satisfactory and conclusive, it would not aid the contestant nor entitle him to the 
 seat, but would only show that there was a vacancy. This is fully shown by the report of the committee 
 in the case of Smith v. Brown (Report No. 11, second session Fortieth Congress) sustained by the House, 
 which, after declaring Mr. Brown not entitled to his seat by reason of disloyalty at the time of his election, 
 at the same time refused to Mr. Smith the seat on the ground that he had not received a majority of the 
 votes cast for Representative at said election in said Congressional district, and directed the Speaker 
 to notify the governor of Kentucky that a vacancy existed in the representation in this House from 
 the said Congressional district of said State. 
 
 After quoting from the report in the case referred to, the committee go on to 
 say that as it was made prior to the adoption of the fourteenth amendment they 
 
 ' Second session Fortieth Congress, Journal, p. 1102; Globe, pp. 4215, 4216. 
 = Third session Fortieth Congress, Journal, pp. 93, 104; Globe, pp. 151, 182. 
 ^ Third session Fortieth Congress, House Report No. 27; 2 Bartlett, p. 471; Rowell's Digest, p. 226.
 
 § 326 ELECTOKATES INCAPACITATED GENERALLY. 207 
 
 would, in quoting the report, intimate no opinion concerning any additional powers 
 that might have been conferred upon Congress by the amendment. The committee 
 also state that no statute of Louisiana provided for a minority candidate to succeed 
 a disquahfied majority candidate. 
 
 (c) The contestant had not proven the vote of the district, either in the aggre- 
 gate or by precincts, so the committee had recourse to the certified returns of the 
 military officers in command in the district, wliich showed a phu-ality of 1,150 
 votes for Mr. Mann. The contestant thereupon raised a question which went to 
 the validity of the returns and credentials. The committee thus set forth this 
 question : 
 
 The ex parte and unauthorized testimony of Mr. F. Leon, taken before a justice of the peace in this 
 district January 11, 1869, since the death of Mr. Mann, is the only other evidence as to the votes cast 
 at this election in this Congressional district, and it is insisted by the counsel for the contestant that such 
 sworn statement of this witness is better evidence than the return of General Buchanan, who, as con- 
 testant claims, '"had no jurisdiction over Congressional elections," and that "the sworn proof therefore 
 stands upon higher ground than the voluntarj' statements of General Buchanan about a matter not within 
 his jurisdiction." 
 
 He concede s. however, that by the reconstruction laws it is made the duty of the commanding 
 general to receive and return the votes upon the ratification of the Constitution. The contestant and 
 his counsel, in assuming this position above stated, seem to have overlooked the provisions of the sup- 
 plementary reconstruction act of March 11, 1868, subsequent to which this election was held, which act 
 makes provision for the election ()f Members of Congress at the same time that the vote is taken on the 
 adoption of the Constitution, and declares that "the same election officers who shall make the return of 
 the votes cast on the ratification or rejection of the Constitution shall enumerate and certify the votes 
 cast for Members of Congress." It is considered, therefore, that the commanding general, in making 
 and certifying the returns of the votes cast at this election for Members of Congress was acting under 
 the authority conferred by the reconstruction laws aforesaid, and that his return is higher evidence than, 
 or at least not inferior to, the brief, general, and somewhat vague and indefinite statement of Mr. Leon, 
 sworn to as aforesaid. 
 
 The House of Representatives, also, in admitting Mr. Mann and his colleagues from Louisiana to 
 their seats on the certificate of said commanding general, as also in admitting Members from Georgia 
 and South Carolina on similar certificates, seems to have recognized this construction of the law and the 
 jurisdiction of said officers in the matter of said election returns. 
 
 (d) Inasmuch as there was no evidence before the committee showing the 
 returns of the various precincts, they could not proceed to apply the testimony as 
 to frauds and intimidation — which was, moreover, not very definite — in any way 
 to destroy Mr. Mann's plurality. They conclude : 
 
 The most favorable construction of the evidence for the contestant that could be given would not 
 identify and count up additional votes enough in his favor to equal one-half of the majority returned 
 for Mr. Mann, much less to give him the majority, even if aU the votes assumed by witnesses to have 
 been changed in the ballot boxes or fraudulently put in were charged to the Democratic vote, deducted 
 from Mr. Mann's majority, and counted for the contestant. The only remedy for or correction of the 
 evils complained of, under the state of the case as presented, would be to set aside the returns, declare a 
 vacancy, and order a new election, as it is impossible from the evidence to purge the poll; but this the 
 contestant does not desire or insist should be done, nor do the committee consider the evidence suffi- 
 cient to justify such a course. 
 
 Therefore the committee reported a resolution declaring that Mr. Jones, the 
 contestant, not having received a majority of the votes, was not entitled to the 
 seat in question.
 
 208 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 327 
 
 On February 27/ after debate, an amendment declaring Mr. Jones entitled to 
 the seat was rejected without division, a demand for the yeas and nays being refused. 
 Then the resolution of the committee was agreed to. 
 
 327. The Louisiana election cases of Jones r. Mann and Hunt ?•. Men- 
 ard, continued. 
 
 The House declined to admit a claimant on the vote of three out of 
 seven parishes, 19,078 out of 27,019 votes having been rejected. 
 
 An election to fill a vacancy being held in a newly apportioned dis- 
 trict, the larger portion of which was new, both as to territory and peo- 
 ple, the elections committee considered the election invalid. 
 
 A question as to whether or not the House, from historic knowledge 
 merely, may decide that the result of an election has been invalidated by 
 intimidation. 
 
 A seat having been adjudged vacant, the House yet declined to admit 
 a claimant whose final right was then under examination. 
 
 Reference to historical facts in determining prima facie effect of reg- 
 \ilar credentials. 
 
 The law governing the serving of notice of contest may be departed 
 from in a case where its observance is impracticable. 
 
 2. The examination of the contest of Hunt r. Menard involved several ques- 
 tions: 
 
 (a) In the first place, immediately after the decision of the House that Mr. 
 Jones was not entitled to the vacancy caused b}^ the death of Mr. Mann, a demand 
 was made that, as Mr. Menard had presented credentials in due form, he should be 
 sworn in pending the decision of the final right. The Committee on Elections, 
 who had reported that neither Mr. Menard nor Mr. Hunt was entitled to the seat, 
 resisted this proposition, it being stated that accompanying Mr. Menard's credentials 
 was a certified statement of the governor and secretary of state giving reasons 
 which induced them to throw out certain votes, which reasons were not good, 
 tending to show that Mr. Menard was not really elected. It was also stated that in 
 all cases from the reconstructed States the bearers of certificates had not been 
 sworn in until the credentials had been examined by the committee. The question 
 was brought to a vote in the shape of an amendment directing that Mr. Menard be 
 sworn in pending the decision of his case. This amendment was disagreed to, yeas 
 57, nays 130.'' In the argument it was admitted' that the usual rule was that a 
 person having a certificate in proper form was entitled to be swoni in in the absence 
 of objection; but the House had at this session in the reconstructed States taken 
 notice of historical facts, and had not sworn in Members-elect imtil their certificates 
 had been examined. 
 
 (b) The majority of the committee in their report discuss a preliminary question 
 relating to notice of contest: 
 
 It is objected, however, by Mr. Menard, that no notice of contest has been served on him as required 
 by law, and that therefore Mr. Hunt is not properly here to contest his right to the seat. In reply to this 
 
 ' Journal, p. 470; Globe, pp. 1679-1683. 
 -Journal, pp. 473, 474; Globe, pp. 1683-1696. 
 = Globe, p. 1694.
 
 § 327 ELECTORATES INCAPACITATED GENERALLY. 209 
 
 it is urged by Mr. Hunt and his counsel that the certificate of Mr. Menard bears date November 25, 1868, 
 and about the time when the final decision of the canvassers was made, and that as the session of Con- 
 gress was to commence on the first Monday in December next succeeding, and to close on the 4th of 
 March following, to wait the time allowed by law for giving notice and answer, and then for taking 
 testimony, would be to permit Mr. Menard to take and hold the seat during the whole of the remaining 
 official term, and to prevent the contest from ever being heard by this Congress, which only has jurisdic- 
 tion of it. He also suggests that as no other evidence was needed by him to support his claim than the 
 certified copy of the returns and the reasons given for their rejection, he has, by filing his protest with 
 the House, addressed to the Speaker, stating his objections to Mr. Menard's claim to the seat, and the 
 grounds on which he claims the same, with the evidence by which it is supported, given Mr. Menard 
 sufficient notice, under the circumstances, and that a literal compliance with the terms of the acts of 
 Congress was impossible without defeating him in the contest by putting off taking the evidence and the 
 hearing of the case beyond the lifetime of the Congress to which it relates. 
 
 He also urges that the statute is directory, and has been so treated in some cases arising under it in 
 the House, and that under the Constitution the power exists in this Congress, independent of the statute, 
 to hear and determine this case as presented. 
 
 Were it necessarj- to decide this question, it is proper to say that Mr. Hunt presents some very good 
 reasons in justification of the course he has pursued under all the circumstances of the case, but the 
 view the committee has taken of the election itself does not, in its judgment, require that it should pass 
 upon this objection raised by Mr. Menard, and also since it is the right of any of the legal voters of the 
 district to petition Congress and to call in question the right of any person claiming the seat. 
 
 The minority in their views' thus discuss Mr. Menard's objection: 
 
 To this objection Mr. Hunt answers, that the notice of contest which he laid before the House on the 
 18th December. 1868 (within the thirty days required by law), was, at the time, known to him (Menard), 
 he being present in the House at the time to present his credentials; that the grounds of contest were 
 particularly set forth in said notice; that the contest was so limited in its range of inquirj- and investi- 
 gation as to require only testimony of record and construction of law; that such testimony was furnished 
 along with the notice, and therefore Mr. Hunt submits that Mr. Menard had notice sufiicient in all respects 
 of time and particularity to put him upon his defense. 
 
 Since the passage of the act of 1851 regarding contested elections, the rulings and decisions of the 
 Committee of Elections, sustained by the House, in respect to the construction and application of its 
 provisions and the practice thereunder, have been most liberal in regard to the personal rights of contest- 
 ants and the constitutional rights of constituencies, and the rights and powers of the House as involved 
 more or less in every case of contested election. 
 
 After citing the cases of Wright v. Fuller, Daily v. Eastabrook, Williamson v. 
 Sickles, Vallandigham v. Campbell, and Chapman v. Ferguson, the minority conclude: 
 
 In the judgment of the undersigned, in view of the facts in the premises and in the spirit of such 
 rulings of the Committee of Elections, the notice given by Mr. Hunt as aforesaid was, for all the pur- 
 poses of this contest and protection of the rights of Mr. Menard, legally and substantially sufficient. 
 
 (c) The conmiittee found that Mr. Menard^ was not elected: 
 
 From the said certified statement it will be seen that the whole number of votes cast at said election 
 to fill such vacancy in said district was 27,019, of which votes so retiuned to the secretary of state 19,078 
 were rejected by the committee of canvassers and the returns thrown out, being a large majority of the 
 entire vote of the district as returned, and the certificate was given to Mr. Menard on the vote of but 
 three of the seven parishes of the district, and casting in the aggregate only a vote of 7,941. The vote of 
 the single parish of Orleans, one of those rejected, was 11,628, being nearly four-ninths of the entire vote 
 of the district, and 3,687 votes more than the entire vote on which the certificate was given to Mr. Menard. 
 
 The reason given in the certified statement for the rejection of the vote of the parish of Orleans, viz, 
 "that the returns were made by the boards of supervisors of registration," shows that in this respect the 
 returns were made as required by law, and that the objection is invalid. 
 
 ' Signed by Messrs. M. C. Kerr, of Indiana, and J. W. Chanler, of New York. 
 ^Mr. Menard was the first colored man to present himself for a seat in the House. 
 5994— VOL 1—07 14
 
 210 PRECEDENTS OF THE HOUSE OF KEPEESENTATIVES. § 327 
 
 By the provisions of section 25 of act No. 164, Laws of Louisiana, 1868, page 223, it is expressly made 
 the duty of said supervisors of registration in each parish to make out and forward said returns to the sec- 
 retary of state. It is unnecessary to notice further the objections stated to the returns from the other 
 parishes rejected (although those urged against Jefferson and Terrebonne would seem to be frivolous), 
 since, if any valid election was held there, the parish of Orleans, being properly returned, should be 
 counted, which would give Mr. Hunt a majority over Mr. Menard so great that it would not be overcome 
 by the vote of all or any of the other parishes, if they were counted, and in no event can Mr. Menard be 
 shown by the returns to have received a majority vote in the district. 
 
 (d) Another reason for denying a seat to Mr. Menard and also to Mr. Hunt 
 appeared in the fact that after the election of Mr. Mann, who was originally chosen 
 to represent the district in question (the Second district), the State had been redis- 
 tricted by the act of August 22, 1868, which so changed the boundaries of districts 
 that the old Second district could not be recognized in the new Second. The largest 
 portion of the new Second, both in territory and numbers, was made up of what 
 was the old Third district, a district represented on the floor by a Member chosen 
 at the time Mr. Mann was originally chosen to represent the old Second. The elec- 
 tion at which Mr. Menard and Mr. Hunt were rival candidates was held after the 
 apportionment, and in the new Second district. The committee say of this situation: 
 
 So far as the numbering of this new district is concerned it might with as much propriety have 
 been called the Third district as the Second, and it would be difficult to say in which of the new dis- 
 tricts as created and arranged by the act of August 22, 18G8, the vacancy had occurred, or to which of 
 the new districts the governor of the State should have issued his writ of election to fill the vacancy 
 which the death of Mr. Mann had caused if the election to fill (he vacancy was compelled to be holden 
 under the law of 1868 creating the new districts. The only case to which the attention of the com- 
 mittee has been called as a precedent is that of Perkins v. Morrison (Bartlett's Election Case, p. 142), 
 which is against this objection raised by Mr. Hunt, but in that case there was a minority report signed 
 by four of the Committee of Elections, and the report of the majority was sustained in the House by the 
 close vote of only 98 to 90, and, in the opinion of your committee, the soundest reasoning is contained 
 in the report of the minority in that case, and sustains the objection raised here against the validity of 
 this election. 
 
 The very objection which was urged in that case and which the majority in the concluding part 
 of their report were compelled to admit, as a consequence of their position, is exemplified in the case 
 now under consideration, and it is thus stated in their report: 
 
 "It was, that if the legislature of New Hampshire could change the boundaries of the district, they 
 might have so divided it as to render it impossible to determine to which district the governor's precept 
 should have been sent." 
 
 The act of the legislature of Louisiana of August 22, 1868, making a new division of the State into 
 its five Congressional districts, by its terms, purports to repeal all laws and parts of laws in conflict 
 with said act, but is silent on the subject of vacancies that might occur in the districts as then existing. 
 
 The committee then quotes the minority views in the case of Perkins v. Mor- 
 rison, which dwells vipon the impropriety of a decision which would allow a portion 
 of the people to have two Representatives, while another should have none in whose 
 choice they had participated. They then conclude: 
 
 This reasoning, which your committee consider as sound and pertinent, applied to the case under 
 consideration seems to be conclusive against this election; and it may also be added that, whatever 
 power a State legislature may have in the matter, it is absurd to say that a district when once estab- 
 lished and a Representative chosen therein is not to continue for the whole Congress for which the 
 election has once been operative. No election to fill the vacancy caused by the death of Mr. Mann 
 appears to have been notified or held in the whole of said district as represented by him. 
 
 The returns on which Mr. Menard predicates his claim to the seat are from parishes wholly outside 
 of said district, and comprised in the district which Hon. J. P. Newsham was chosen to represent and
 
 § 327 ELECTORATES INCAPACITATED GENEKALLY. 211 
 
 is now representing in this House (act No. 54, Laws of Louisiana, 1864-65, p. 144), and which parishes, 
 in the judgment of your committee, had no lawful right to participate in the election to fill the vacancy 
 in another district, caused by the death of Mr. Mann. 
 
 But while the objection is thus fatal to Mr. Menard's claim to the seat, it is equally fatal to the 
 claim of Mr. Himt. 
 
 The minority' quote the New Hampshire case and says: 
 
 The reasoning of the majority of the committee in that case seems clear, forcible, and conclusive 
 The regulation of the districts is under the exclusive control of the States until, by act of Congress, it 
 is taken from them. This jurisdiction has never yet been asserted by Congress. The State, therefore, 
 had full power to create the new district. It did so, and then repealed all preexisting laws on the sub- 
 ject. The vacancy could not have been filled by an election held otherwise than under the provisions 
 of the last law. It was therefore so held, in fact, and by order of the governor of the State. 
 
 But as we proceed to make it clear that if the entire vote cast in the election precincts now included 
 in the Second district which were not in the old district be rejected, it will not materially change the 
 result, or in any just sense sustain the decision of the majority in this case. The decision of the majority 
 amounts to a denial of representation. This ought never to be done where it is possible to avoid it. 
 
 It is argued by the majority of the committee that the electors of the Second district who originally 
 voted at the election of Mr. Mann, to serve during the Fortieth Congress, could alone legally elect a 
 successor to fill his vacancy for the same Congress, and therefore that the recent election, November 
 3, 1868, to fill such vacancy, was invalid by reason of the participation therein of the electors of the 
 several parishes and the ward which had been added to the district since Mann's election. If this 
 argument be sound, it can fairly and legally apply only in such cases where the legitimate vote can 
 not be separated nor sufficiently ascertainable from the illegitimate. 
 
 (e) The majority of the committe state these racts in support of a contention 
 that there had been intimidation: 
 
 When Mr. Mann was elected, the Second district, as then constituted by the act of April 4, 1865, 
 was wholly within the parish of Orleans, though not comprising the whole of said parish, and his aggre- 
 gate vote was in April, 1868, 6,874, and the vote for Mr. Jones, as retimied, was 5,634, besides 349 scat- 
 tering votes given for other Republican candidates, making the aggregate vote opposed to Mr. Mann 
 5,983. At the late election in November, only a little over six months after, when under the act of 
 August 22, 1868, other parishes were included in this district and a portion of the parish of Orleans, 
 this portion of the parish of Orleans now in the district returns 11,535 votes for Mr. Hunt for l)oth the 
 Fortieth and Forty-first Congresses, and but 93 votes for Mr. Menard for the Fortieth Congress and 
 115 for Mr. Sheldon for the Forty-first Congress. The smallness and wonderful decrease of the Repub- 
 lican vote, the vastness and wonderful increase of the Democratic vote, and its exact coincidence for 
 both Congresses, are all somewhat strange and not easily susceptible of satisfactory explanation on the 
 theory of a fair and honest election. 
 
 The committee then go on to cite other things of which the House might take 
 notice, the fact that "for some weeks immediately preceding this election civil 
 disturbance, disorder, and crime prevailed to such extent by reason of the law- 
 lessness of the disloyal element prevalent there that the civil authorities were 
 unable to put it down." The committee cite the fact that the State legislature 
 called ineffectually on the National Executive for troops, and quotes from letters 
 of the governor. It was unsafe for loyal citizens to speak their sentiments freely, 
 to participate in political meetings, or vote at the election. The majority there- 
 fore conclude: 
 
 ' On this branch of the question the minority were reenforced during the debate by Mr. Luke P. 
 Poland, of Vermont. Globe, p. 1692.
 
 212 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 328 
 
 Sufficient of these matters exist cjf which notice may be taken in connection with the facts in evi- 
 dence in the case to justify the conclusion, in the opinion of your committee, that no valid election 
 has been held to fill the vacancy in the said Second Congressional district. 
 
 The minority assailed vigorously this position of the committee in regard to 
 intimidation. They denied the facts by implication, if not directly, and questioned 
 the law. It was urged' in the debate that there was no allegation as to intimida- 
 tion before the committee and that there was no proof of it. An election case, 
 like a suit at law, should be decided on things asserted and proven. The letter 
 of the governor did not amount even to ex parte evidence. Further in the debate 
 the fact that the committee had proved nothing definite as to votes prevented by 
 the alleged intimidation was tirged. 
 
 The report was debated at length on February 27,' the question presented being 
 this resolution presented by the majority of the committee: 
 
 Resolved, That neither J. Willis Menard nor Caleb S. Hunt is entitled to a seat in this House as 
 a Representative from the Second Congressional district of Louisiana, to fill the vacancy caused by the 
 death of James Mann. 
 
 Mr. Luke P. Poland moved to amend bj^ striking out all after the word "re- 
 solved" and inserting a provision that the report be recommitted, with instruc- 
 tions to take testimony in reference to "any improper or unlawful means used to 
 prevent a free and fair election." 
 
 Mr. Halbert E. Paine, of Wisconsin, moved to amend the amendment by add- 
 ing a provision that Mr. Menard be admitted on his prima facie right pending con- 
 sideration of the case. 
 
 Mr. Michael C. Kerr, of Indiana, by unanimous consent, submitted a substi- 
 tute declaring Mr. Hunt, the contestant, entitled to the seat. 
 
 The question being first taken on the amendment of Mr. Kerr, it was decided 
 in the negative, yeas 41, naj^s 137. 
 
 On the amendment of Mr. Paine there were yeas 57, nays 130, and it was 
 rejected. 
 
 Then, on motion of Mr. Henry L. Dawes, of Massachusetts, the whole sub- 
 ject was laid on the table. ^ 
 
 328. The Louisiana election cases of Hunt v. Sheldon, Sypher v. St. 
 Martin, Kennedy and Moray v. McCranie, Newsham v. Ryan, and Darrall 
 V. Bailey in the Forty-first Congress. 
 
 While the Clerk may not give prima facie effect to credentials not 
 explicitly showing the bearers to be duly elected, the House has done 
 so after exanaining the returns. 
 
 The House assigned prima facie title to a claimant, although papers 
 accompanying the credentials raised a question as to the final right. 
 
 The House declined to consider, in the assignment of prima facie title, 
 a question of law as to rejection of votes by canvassing ofl&cers. 
 
 1 By Mr. Poland, Globe, p. 1692. 
 
 2 Globe, pp. 1683-1096. 
 'Journal, pp. 473^75.
 
 § 328 ELECTORATES INCAPACITATED GENERALLY. 213 
 
 The House has examined validity of elections and qualifications of a 
 claimant when determining prima facie title, leaving final right for later 
 inquiry. 
 
 The House adjudged valid for prima facie title an election wherein 
 parishes casting 14,346 out of 27,055 votes in the district were rejected. 
 
 A resolution for the investigation of the right of a claimant to a 
 seat presents a question of privilege. 
 
 On March 4, 1S69/ at the organization of the House, the names of the Mem- 
 bers-elect from the State of Louisiana were not found on the Clerk's roll, particularly 
 the name of Lionel A. Sheldon. These Members-elect bore certificates as follows 
 in form: 
 
 State of Louisiana, Executive Department, 
 
 New Orleans, November 25, 1868. 
 To all to whom, these presents may come: 
 
 Kqow ye that, in accordance with the laws of the State of Louisiana, an election was held by the 
 qualified electors of this State on the 3d day of November, A. D. 1868, for five Members of Congress, to 
 represent the First, Second, Third, Fourth, and Fifth Congressional districts of the State of Louisiana 
 in the Forty-first Congress of the L^nited States, and for one Member of Congress from the Second Con- 
 gressional district to the Fortieth Congress, to fill the vacanc" occasioned by the death of the Hon. 
 James Mann. 
 
 And whereas the returns of said election made to the secretary of state, as required by law, have 
 been carefully examined, compared, and attested by the oroper officers whose duty it was to examine 
 the same; 
 
 And whereas it has been ascertained from said returns that Lionel AUen Sheldon received 5,108 
 votes, and Caleb S. Hunt 2,833 votes, cast at said election: 
 
 Now, therefore, I, Henry C. Warmoth, governor of the State of Louisiana, do hereby certify that 
 Lionel Allen Sheldon received a majority of the votes cast for Representative to the Forty-first Congress 
 from the Second Congressional district of the State of Louisiana. 
 
 In testimony whereof I have hereunto set my hand and caused the seal of the State to be affixed 
 
 this 5th day of November, in the year of our Lord 1868, and of the independence of the United States 
 
 the ninety third. 
 
 [seal.] H. C. Warmoth, 
 
 Governor of the State of Louisiana. 
 Geo. E. Bovee, Secretary of State. 
 
 The Clerk had declined to put the names of the Members-elect on the roll 
 because the words "duly elected" did not appear in the credentials.^ The law of 
 Louisiana had provided that the proper officials "shall proceed to ascertain from 
 the said retirms the person duly elected, a certificate of which shall be * * * 
 signed by the governor," etc. In 1865 the credentials given In^ the governor, in 
 the ancient form of the State, had certified that the bearer "was duly elected a 
 Member of the Thirty-ninth Congress." 
 
 The Clerk having declined to place the names on the roll, the House agreed to 
 the following resolution: 
 
 Resolved, That, inasmuch as the names of Louis St. Martin, Lionel A. Sheldon, and George W. 
 McCranie, claiming severally to be elected Representatives from the State of Louisiana in the Forty-first 
 Congress, have been omitted by the Clerk from the roll of Members because, as is alleged, their several 
 credentials or certificates of election do not show that they were regularly elected in accordance with 
 
 ' First session Forty-first Congress, Journal, p. 12; Globe, pp. 11-13. 
 
 ^ See statements of Messrs. Garfield and Stevenson in debate, Globe, pp. 11, 637, 642.
 
 214 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 328 
 
 the laws of said State or of the United States, the credentials of the said severally named pereons be 
 referred to the Committee of Elections, when appointed, for inquiry and examination into the right of 
 said persons, respectively, to be admitted on their said certificates to take the seats which they claim, 
 with the instructions to said committee to report at as early a day as practicable. 
 
 On March 9 ' Mr. Horace Maynard, of Tennessee, as a question of privilege, 
 presented a preamble and resolution, the former referring to an official declaration 
 of the governor of Louisiana and a legislative report of that State as authority 
 for statements that riot and intimidation had prevailed, and the latter providing 
 that the committee on elections, in addition to examining the credentials, 
 
 shall inquire into the validity of the election * * * and ascertain in which of said districts, if any, 
 a valid election was held, and shall also inquire whether the persons claiming to have been elected 
 in such districts are qualified under the Constitution and laws to take seats as Members of this House. 
 
 A question of order being raised that this resolution did not involve a question 
 of privilege, the Speaker ^ said : 
 
 Anything which goes to vindicate the rightof aMember to a seat, whether an investigation or any- 
 thing else, is within the pri\'ilege of the House. 
 
 This resolution was agreed to, yeas 117, nays 46. 
 
 On March 31,' Mr. Job E. Stevenson, of Oliio, submitted the report of the 
 majority of the committee. This report, after citing the facts as to the certificates, 
 says: 
 
 If the case rested upon the certificate alone, the right of the holder to a seat might be questioned; 
 but upon this point, which is involved in other cases not yet considered, the committee do not deem 
 it necessarj' now to pass. By the official returns, as examined and certified according to law, it appears 
 that Lionel Allen Sheldon received 5,108 votes and Caleb S. Hunt 2,833 votes. This official statement, 
 which was before the committee, also showed that the following votes were rejected: For Lionel A. 
 Sheldon 3,606, for Caleb S. Hunt 15,508. The statement gave the reasons for the rejection of these votes. 
 
 The committee proceed to say: 
 
 Whatever might be the result of a contest involvingthe validity of these returns, and the sufficiency 
 of the reasons ass^ned for rejecting the parishes which were rejected, the returns are to he received 
 as prima facie evidence of the result of the election, and upon them Mr. Sheldon is entitled to take 
 the seat, subject to any contest which may be lawfully made, unless he is disqualified or the election 
 was void. 
 
 The report then states that Mr. Sheldon was not disqualified. 
 
 In the debate it was asserted^ that the credentials were sufficient prima facie 
 evidence for the House to seat Mr. Sheldon. The statute required that the Clerk 
 in making up the roll should not put on the names of those not explicitly shown 
 to be duly elected. The House Avas not governed by such strictness. 
 
 The minority ^ also contended that the certificate was sufficient in this respect, 
 although not in another: 
 
 A prima facie right must be founded upon and established by prima facie evidence, and prima facie 
 evidence is that evidence which is sufficient to establish the fact, unless rebutted. Now apply this 
 
 ' Journal, pp. 19, 20; Globe, p. 36. 
 
 ' James G. Blaine, of Maine, Speaker. 
 
 3 House Report No. 4; 2 Bartlett, p. 530; Rowell's Digest, p. 232. 
 
 * By Messrs. Garfield and Paine, Globe, pp. 642, 643. 
 
 ' Minority views signed by Messrs. A. S. Burr, of Illinois, and Samuel J. Randall, of Pennsylvania.
 
 § 329 ELECTORATES INCAPACITATED GENERALLY. 215 
 
 definition to the case under consideration. Unless rebutted, the certificate which Mr. Sheldon holds is 
 prima facie evidence: (1) That an election was held at the time, place, and for the purpose therein 
 expressed; and (2) that he received the highest number of votes cast at the election, which necessarily 
 constitutes his election, and thereby establishes prima facie his right, or, in other phrase, his prima facie 
 right to be admitted to the seat. But his certificate of prima facie evidence is rebutted by a like official 
 and authenticated statement of equal force, and showing also (1) that the election was held at the time, 
 place, and for the purpose therein expressed; and (2) that Mr. Hunt received the highest number of 
 votes cast at the election, and which necessarily constitutes his election, and thereby establishes prima 
 facie his right to be admitted to the seat. Now, what becomes of Mr. Sheldon's prima facie right? It 
 falls, of course, unsustained by prima facie e\'idence; and thus his claim is of no higher validity than 
 Mr. Hunt's in a prima facie sense, and upon the form of the papers, and in substantial merits, as made 
 manifest on the face of the certificates, it becomes utterly worthless and proves nothing to the advantage 
 of Mr. Sheldon. The papers, taken together, establish the \-ital fact that Sheldon is not elected, and 
 that Hunt is elected by a triumphant majority of 9,627 votes. Or, rejecting the parishes of Terrebonne, 
 St. John the Baptist, and Jefferson, he is then elected by a majority of 9,135. This conclusive result is 
 shown by the papers and the law alone, without any resort whatever to other evidence or sources of 
 information. 
 
 The point made by the minority is elaborated more clearly in the debate.' 
 The certificate of facts, which was signed by the governor and secretary of state 
 under seal, gave the returned vote and the reasons in law for the rejection of the 
 returns from certain parishes. The minority contended that the reference to the 
 law brought that law within the view of the committee, and that the question 
 whether or not the returns were properly rejected should be settled as part of the 
 prima facie case. Comparing this certified paper with the credentials, the minority 
 say: 
 
 This paper springs from the same fountain; is based upon and authorized by the same law; is exe- 
 cuted by the same officers; relates to the same subject-matter, and declares certain facts in reference 
 thereto, from which arise, by ine\atable and logical implication, different legal results and conclusions 
 from those promulgated in the certificate to Mr. Sheldon. 
 
 In all matters pertaining to the settlement or adjudication of contested elections, the House acts 
 judicially, and not otherwise, \yhenever any legal or official papers, executed in connection with such 
 contests, and properly brought to the knowledge of the House, are based upon, or refer to, any general 
 laws. State or Federal, for the regulation of elections, it is the imperative duty of the House to take notice 
 of all such laws. It is the conclusive presumption of law that the House is acquainted with them. If 
 any action in connection with an election is based upon provisions or constructions of law, and not upon 
 facts, the law needs not to be set out in the official paper based upon it, but the House must take judicial 
 notice of it, and must be its own exclusive judge as to its interpretation. These rules are elementary 
 and important, and apply with great propriety and force to this case. 
 
 To this the majority replied that the tribunal in Louisiana having jurisdiction 
 passed on the question of law, and while the House might review the decision in 
 determining the final right, it should not do so on the prima facie question.^ 
 
 329. The Louisiana election cases of Hunt v. Sheldon, Sypher v. St. 
 Martin, etc., continued. 
 
 The House, going outside the allegations of the parties and ascertain- 
 ing by historic knowledge disturbances causing 232 deaths, declared an 
 election invalid. 
 
 ' Remarks of Mr. Kerr, Globe, p. 639. 
 ^ Remarks of Mr. Cessna, Globe, p. 642.
 
 216 PRECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 329 
 
 The committee having also been instructed to inquire into the validity of the 
 election, the majority of the committee arrived at the following conclusions of fact* 
 
 In the city of New Orleans and in Jefferson Parish, which adjoins and is practically part of the 
 city, there was for about one week prior to and at the date of the election a reign of terror unsurpassed 
 in the history of this country. The disloyal inhabitants, stimulated by the hope of reviving rebellion 
 and regaining the lost cause, organized and armed, overcame the feeble resistance of the civil authorities, 
 overawed the military commanders, and ran riot through the city, shooting down on sight and murdering 
 in cold blood loyal citizens, white and colored, without offense or provocation, save those of loyalty and 
 color. 
 
 By the official reports of the committee of the legislature of Louisiana appointed to investigate the 
 facts, it appears that in these two parishes 232 Republicans were killed, shot, or otherwise maltreated — 69 
 in Jefferson and 173 in Orleans. 
 
 This violence prevented nearly one-half the registered electors from voting. 
 
 Assuming that nearly all the electors thus prevented would have voted under 
 peaceable conditions, the majority conclude that the election should be invalidated 
 in part. They say: 
 
 It is evident, from the testimony referred to the committee, that in the parishes of Orleans and 
 Jefferson there was no valid election, and the question arises whether this should invalidate the 
 election in the other parishes of the district and set aside the entire returns. 
 
 In all the other parishes the election was quiet and the vote was as full as that usually cast in loyal 
 States; and it would seem unrf-asonable and unjust that the peaceable electors of the district should be 
 denied the right of representation because their violent neighbors attempted and failed to deprive them 
 of that right. 
 
 The better rule would seem to be that indicated by the legislature of Louisiana, in the resolution 
 referred to the committee, to exclude the disorderly and count the peaceable parishes, thereby defeating 
 the violent and protecting the peaceable and law-abiding citizens in the right of representation. 
 
 The minority condemn the conclusion of the majority and the reasoning on 
 which it is based, saying: 
 
 The parties to this contest do not allege invalidity in the election by reason of the existence of 
 violence, intimidation, terror, or anarchy. They specifically and emphatically deny all such charges. 
 But the majority of the committee assume the existence of such a state of disorder as should invalidate 
 the election in this parish. The certificates afford no support or countenance to this assumption. There 
 is no legal evidence before the committee to establish it. But the majority seem to have borrowed their 
 faith on this subject from a report made to the legislature of Louisiana by a committee of that body. 
 That report is not properly or legally before the committee; and if it were, it does not contain legal 
 evidence to be used in this contest, and in every respect it is intrinsically and notoriously unfit to be 
 received. It is wholly ex parte and transparently and meanly partisan, and, judged by itself, it is 
 unworthy of respect or belief. 
 
 But the majority, byasingular disregard of the appropriate limits of an inquiry into alleged prima 
 facie titles, attempts, by a process of argument and comparison of party votes and strength at a preceding 
 election, to deduce the legal conclusion that if all the legal votes in the parish of Orleans that were not 
 cast had been cast at the Congressional election in question, they would in fact have been cast for Mr. 
 Sheldon, and that therefore he would have been elected, and ought now to be allowed to be sworn in 
 as a Member. They appear to have no doubt but that every man who did not vote wanted to vote for 
 Mr. Sheldon and that the House should now declare the result to be the same as if they had in fact 
 all voted for Mr. Sheldon. 
 
 The majority reported a resolution giving the seat to Mr. Sheldon on his prima 
 facie showing.
 
 § 330 ELECTOEATES INCAPACITATED GENERALLY. 217 
 
 The report was debated in the House on April 8/ and a proposition of the 
 minority that Mr. Hunt be seated was decided in the negative^yeas 44, nays 101. 
 Then the resolution of the majority seating Mr. Sheldon was agreed to — ^yeas 85, 
 nays 37. 
 
 Mr. Sheldon accordingly took the oath. 
 
 330. The Louisiana election cases of Hunt v. Sheldon, Sypher v. St. 
 Martin, etc., continued. 
 
 Instance wherein the House, by resolution, removed the contested 
 cases of a State from operation of the law and prescribed a different pro- 
 cedure. 
 
 On the day preceding the decision to seat Mr. Sheldon, on April 7, 1869,' the 
 House agreed to the following resolution: 
 
 Resolved, That each of the persons claiming seats in the Forty-first Congress as Representatives of 
 the several Congressional districts of the State of Louisiana, excepting such as have been, or before the 
 close of the present session shall be, reported by the Committee of Elections to this House as unable to 
 take the oath prescribed in the act entitled ' 'An act to prescribe an oath of office, and for other purposes," 
 approved July 2, 1862, shall, on or before the 15th day of April, 1869, file with the Clerk of the House a 
 statement of the grounds upon which he claims such seat, and a subcommittee shall be appointed by 
 the Committee of Elections with power to administer oaths, take testimony, and send for persons and 
 papers to investigate the facts connected with the late elections for Representatives in said several 
 districts during the recess of Congress, at such time and places in the State of Louisiana as they may 
 determine: and upon such investigation and upon the evidence heretofore lawfully taken in said respec- 
 tive cases the Committee of Elections shall at the next session of Congress report to the House whether 
 the elections in the said several districts were lawful, regular, and valid, and which of said persons, if 
 any, were lawfully elected to represent said districts, respectively, in the Forty-first Congress, and 
 whether said claimants are able to take the oath of office prescribed in the act of July, 1862, with a full 
 statement of facts in each case. 
 
 Under this resolution a question arose which was thus described and discussed 
 when the committee reported on the final right to Mr. Sheldon's seat in the next 
 session : 
 
 The sitting Member claims that as the resijlution admitting him to the seat was subsequent to that 
 of April 7, 1869, under which we are now proceeding, the latter does not apply to his case, and he 
 insists that his case is to be further considered, if at all, solely under the act regulating contested elections, 
 by which it is provided that notice of contest shall be given within thirty days after the result of the 
 election shall have been declared. Under this act the notice should have been given within thirty 
 days from November 25, 1868, but no notice was given until January 30, 1869; consequently the notice 
 was not sufficient to sustain a contest "according to law," unless the objection was waived, which does 
 not appear, the contestee having made and maintained the objection at every stage of the case. The 
 committee thought proper, notwithstanding this objection, and subject to protest, to proceed in the 
 examination of witnesses in this case; and while upon a rigid construction of the resolutions of the House 
 under the technical rules of law it might be difficult to escape the conclusion claimed by the contestee, 
 we submit the question without recommendation, and assume that the House in its discretion may 
 enter into the consideration of the case upon its merits. 
 
 The minority took a more positive view: 
 
 In respect to the legal technicality urged by Mr. Sheldon and presented by the majority of the 
 committee as one of the grounds of his right to the seat, viz, that as he was admitted to the seat subject 
 
 'Journal, pp. 199, 202; Globe, pp. 637-646. 
 -Journal, p. 183; Globe, p. 588.
 
 218 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 331 
 
 only to a contest according to law, no person has a right to contest the seat, because he has never 
 received any notice of contest within the time required by the law of 1851. The answer to such special 
 pleading is, that Mr. Hunt's right to contest the seat does not now depend upon technical conformity 
 to the law of 1851. The House resolution of 7th April not only authorizes it, but from the moment of its 
 passage became the law and the rule under which the contest should be tried, and Mr. Hunt has com- 
 plied with its requirements, and therefore is contesting according to law. The House has fallen back 
 upon its constitutional prerogative of judging of the election and qualification of its own Members, and 
 has taken the contest out of the hands of the parties, and commenced the case de novo. Mr. Sheldon 
 has admitted the new status of the contest by filing his statement of the grounds of his claim, in obedience 
 to the requirements of the resolution. Under that resolution he was admitted on prima facie right 
 to take his seat, subject to any contest against him according to law; and Mr. Hunt, having conformed 
 to the requirements of the House resolution, is now contesting his right to the seat in accordance with law. 
 
 331. The Louisiana election cases of Hunt v. Sheldon, Sypher v. St. 
 Martin, etc., continued. 
 
 The House has decided that widespread and organized intimidation 
 might invalidate the polls, although the disorder ceased before the actual 
 day of election, when the polls were quiet. 
 
 The poll of a district in a prior year has been referred to in deciding 
 upon the effect of a widespread system of intimidation. 
 
 The report as to the final right was submitted on March 16, 1870/ b}' Mr. Steven- 
 son. As this case was tj'pical of the other Louisiana cases the report considers 
 first the general principle underlying the contests in the five districts from the State. 
 The majority of the committee found it established by ofiicial records as follows in 
 regard to certain disturbed parishes distributed among the five districts : 
 
 The number of electors registered in those parishes under the reconstruction acts in 1867 was 74,106; 
 31,413 white and 42,693 colored ; being a majority of 11,280 of colored electors. 
 
 The Republican vote, at the election in 1867 for the constitutional convention, was 38,335, being a 
 majority of all the registered electors. 
 
 The Democratic vote was 2,482, the mass of that party not voting because, under the reconstruction 
 acts, a majority of registered electors was requisite to the calling of a convention. 
 
 At the next election, held in April, 1868, there were 30,895 votes cast in favor of the Republican 
 State, parish, legislative, and Congressional ticket, against 26,553, cast for independent candidates, 
 adopted by the Democracy. 
 
 The next election was that in question, being the Presidential and Congressional election of 1868, 
 when the number of Republican votes cast in these parishes was 3,359, of which number eight parishes 
 cast 3,339. Three parishes cast two Republican votes each. Five parishes cast one Republican vote 
 each. Seven parishes cast no Republican votes. 
 
 The majority find it established by testimony that previous to the election a 
 condition of terrorism was inaugurated in the parishes in question. Oatli-bound 
 bands of armed men, organized in a secret fraternity, set on foot organized intimi- 
 dation and riot, and the report says "it is estimated by those best informed that not 
 less than 2,000 Republicans were killed, wounded by gunshots, or otherwise seriously 
 injured." Tliis caused the Republicans generally to avoid the polls on election day. 
 The majority of the committee therefore propose the following rule: 
 
 If it be said that there might not have been any violence, the answer is that recent events had 
 raised a reasonable apprehension of danger, sufficient in law to cause a man of ordinary prudence to so 
 act as to avoid the probable danger. 
 
 ' Second session Forty-first Congress, House Report No. 38 ; 2 Bartlett, p. 703; Rowell's Digest, p. 241.
 
 § 331 ELECTOKATES INCAPACITATED GENERALLY. 219 
 
 It may be said that because the statutes of Louisiana provide that actual violence at the polls should 
 void the election, therefore no election can be set aside for violence at any other time or place, however 
 it may affect the minds or conduct of electors; and this may have been the view of the Democratic 
 leaders in causing or permitting cessation of violence immediately before the day of election, and in 
 keeping the peace among themselves at the polls. They may have supposed that they could violate 
 the spirit of the State statute without incurring the penalty of its letter. It is submitted that no such 
 views of law should be allowed to prevail. Such a ruling would overturn established principles, and 
 give license to lawlessness. The rule applicable is well expressed in the act of Congress known as the 
 first reconstruction act, passed March 2, 1867, section 5, where it is provided as one of the essentials of 
 valid election that it shall appear "that all the registered and qualified electors had an opportunity to 
 vote freely and without restraint, fear, or the influence of fraud." 
 
 This act was passed with special reference to the circumstances surrounding the freedmen of the 
 late rebellious States, and it is well adapted to test the fairness and validity of such elections. It is 
 declaratory of an established rule of contested election law, and is at present our only available means 
 of securing fair and peaceable elections in the reconstructed States. It should be strictly and impar- 
 tially enforced until we shall be prepared to protect the voter in the exercise of his rights, or to punish 
 those who violate them; and it may be that experience will demonstrate that the best permanent prac- 
 ticable means of securing fair and free elections in the reconstructed States will be such an application 
 of this great principle as will teach all parties that they have nothing to gain by intimidation and violence. 
 It is proposed to apply this rule to the several disputed parishes of the districts of the State of Louisiana, 
 and under its operation to reject the returns from those parishes, if any, in which it shall clearly appear 
 from the testimony that the electors generally had not an opportunity to vote "freely and without 
 restraint, fear, or influence of fraud." 
 
 As to the remaining parishes in which it shall appear that the election was valid, it is proposed that 
 the returns therefrom, when properly authenticated or proved, shall be counted, and the result in each 
 district determined from such returns. 
 
 The minority ' do not admit either the facts alleged to be shown by the testi- 
 mony or the principle of law. 
 
 The anarchy, violence, and public distiu-bance in the city of New Orleans, set up by contestee and 
 the majority of the committee as a proper ground for rejecting the returns of the election in the said five 
 wards thereof, appears, by the testimony of the witnesses testifying on that point, to have occurred some- 
 time prior to the election, and therefore could not necessarily in any manner interrupt the proceedings 
 at the election, nor prevent the ascertainment of the result. 
 
 The rule of law is well settled upon the question of riot and disturbance of the public peace at 
 elections, and has governed the decisions in aU analogous cases in courts and legislative bodies, both in 
 England and this countrj'. It is laid down in all the leading authorities on the law of elections, under 
 appropriate titles, viz, Hayward on County Elections; Wordsworth's Law and Practice of Elections; 
 Curtis's Law and Practice of Elections; Rowe on Elections; Sheppard on Elections; 4 Selden; Cooley 
 on Const. Limit.; 1 Peckwell, etc., and is in substance, that to invalidate or make void an election on 
 the ground of riot and intimidation, it must appear that the proceedings at the election were interrupted 
 and the ascertainment of the result prevented thereby. This rule furnishes the ground of the decisions 
 by the Committee of Elections in the several cases of Harrison v. Davis, Contested Cases, vol. 2, p. 341; 
 Preston v. Harris, vol. 2, p. 346; Clements, of Tennessee, vol. 2, p. 369; Bruce v. Loan, vol. 2, p. 519; 
 Minority Report adopted by the House. 
 
 After quoting from some of these authorities, the minority continue — 
 
 It will be observed that these several cases were founded on allegations of riot, violence, public 
 disorder, intimidation, and interference with voters on the day of election and at the polls; and it was 
 sought in each case to avoid the election in whole or in part; but the committee and the House, finding 
 that the proceedings at the election were not interrupted, and the result had been duly ascertained, 
 declared the election in each case valid, thus sustaining the rule aforesaid; and yet, with these former 
 
 ' This Congress the Committee of Elections worked by subcommittees. Messrs. Stephenson, 
 Burdett, and Kerr constituted the subcommittee having the Louisiana cases.
 
 220 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES, § 332 
 
 decisions by the committee and the House before them, and directly in point of the case now under 
 consideration, the majority of the committee reports that, because of riot and disturbance of the public 
 peace, not on the day of election and at the polls, but several days before the election, during the political 
 campaign in the city oi New Orleans, the election in the five wards aforesaid should bo considered void, 
 and that, too, not because the proceedings at the election were interrupted, or the result not ascertainable, 
 but because a large number of Republican electors pretended that they could not vote with personal 
 safety, notwithstanding on the day of the election no violence, threats, nor intimidation operated to give 
 even color to such pretense. 
 
 Another rule, equally well established, is that whenever it is sought to set aside an election, in part, 
 on the ground of illegal votes or riot and intimidation, it must be made to appear that if such illegal 
 votes had not been received or if such riot and intimidation had not prevailed the result of the election 
 would have been different in the whole district; for otherwise it would be wholly immaterial whether 
 the election was void or not, in part. On this point reference is again made to the authorities before cited. 
 This rule is self-evident, and has always heretofore lieen the guide of the Committee of Elections to its 
 conclusions, and governed the House in its decisions, and is directly in point of the contest now under 
 consideration. 
 
 332. The Louisiana election cases of Hunt v. Sheldon, Sypher v. St. 
 Martin, etc., continued. 
 
 The House has assigned final right to a seat from a district wherein 
 14,346 out of 27,055 returned votes were rejected because of intimi- 
 dation. 
 
 The majority of the committee, having considered the general issue, proceed to 
 the consideration of the case of Hunt r\ Sheldon. It appeared that in the entire 
 district there were cast for Mr. Sheldon 8,714 votes and for Mr. Himt 18,341, a 
 majority of 9,627 for the latter. But the majority of the committee foimd that 
 violence and intimidation had prevailed in the parishes of Orleans and Jefferson 
 to such an extent as to bring them wathin the general principles set forth at the 
 outset. The votes cast in these two parishes were for Sheldon 787 and for Hunt 
 13,559, a majority of 12,772 for the latter. The rejection of these two parishes 
 would cast out 14,346 out of the 27,055 votes cast in the district, and would change 
 the result from a majority for Mr. Hunt to a majority for Mr. Sheldon. 
 
 After reviewing the lawlessness, intimidation, and riot in these two parishes 
 prior to election day, the majority of the committee conclude: 
 
 The number of registered electors in the parishes of Orleans and Jefferson in 1867 was 34,766, of whom 
 18,697, a majority, were colored. The Republican vote cast at that election in 1867, in those parishes, 
 was 16,083 — a large majority of votes cast. The regular Republican vote of those parishes in April, 1868, 
 was 17,106. The entire Republican vote cast in those two parishes, in November, 1868, was 1,814, 
 being a falling off, in about six months, of over 15,000 votes, upon a largely increased registration. 
 
 The comparison is equally striking if confined to the vote in Jefferson parish alone or in that part, 
 of Orleans comprised within this Congressional district. The Republican vote in Jefferson in 1867 was 
 3,284; in April, 1868, 3,133; in November, 1868, 672— a decrease of nearly four-fifths. The testimony 
 relative to the elections of 1867 and April, 1868, does not show the vote of the wards of Orleans separately, 
 but it is understood that the population of the parish was about equally divided between the First and 
 Second Congressional districts. The registered vote of the part of the parish within the Second district 
 in November, 1868, was 21,314, more than half the registered vote of the parish. The Republican vote 
 cast at the November election, 1868, was 124 — probably not 2 per cent of the Republican vote. 
 
 It seems clear that there was no valid election in either of these two parishes, and that the returns 
 from each of them should be rejected, and that the result should be deterimned from the returns of the 
 other parishes of the district.
 
 § 333 ELECTORATES INCAPACITATED GENERALLY. 221 
 
 The minoritT opposed this view, also raising a question of fact as to the actual 
 result even were the principles of the majority to be followed. 
 
 The report was debated on April 12/ and on April 13^ a vote was taken on the 
 proposition of the minority that Mr. Sheldon was not elected and that Mr. Himt was 
 elected. This was defeated, yeas 49, nays 123. 
 
 Then the resolution of the majority, declaring Mr. Hunt not entitled to the 
 seat, was agreed to, yeas 119, nays 47. The second resolution, declaring Mr. Sheldon 
 entitled to his seat, was agreed to, yeas 114, naj's 51. 
 
 333. The Louisiana election cases of Hunt v. Sheldon, Sypher v. St. 
 Martin, etc., continued. 
 
 The House concluded that when two-thirds of the returned vote of a 
 district had been rejected for intimidation the remainder did not consti- 
 tute a valid constituency. 
 
 Instance of exclusion of a Member-elect found unable to take the test 
 oath of loyalty. 
 
 Another contested case from Louisiana was that of Sypher v. St. Martin. 
 Louis St. Martin had presented credentials in the same form as those of Mr. Sheldon 
 and had been temporarily excluded \vith the other Members of the delegation. 
 Under the resolution of April 7, 1869, the Committee on Elections examined the 
 quahfications of Mr. St. Martin, reporting^ as follows: 
 
 It was alleged, in writing, before the committee, by said Sypher, that said St. Martin could not 
 take the oath prescribed in the act entitled "An act to prescribe an oath of office, and for other pur- 
 poses," approved July 2, 1862. The committee thereupon, in obedience to said resolution, inquired 
 into said charge, and have found and do report to the House that Louis St. Martin, claiming the right 
 to represent the First Congressional district of the State of Louisiana in this House, is unable to take 
 the oath of office prescribed in the said act of July 2, 1862. 
 
 Although the House tlid not act on this report, the Committee on Elections 
 considered that it disposed of the claim of Mr. St. Martin to the seat, and did not 
 consider him as a party except in so far as his action negatived the claim of Mr. 
 Sypher. 
 
 The report in the case of Mr. Sypher was submitted on April 18, 1870,^ bv 
 Mr. Stevenson. Tliis report chd not give the official returns of the district, but 
 after reviewing the acts of violence and intimidation before the election, wherein 
 "over 300 leading and active Repubhcans, white and colored, were killed, wounded, 
 or otherwise cruelly maltreated," and after reaffirming the principles set forth in 
 the case of Hunt v. Sheldon, proceeded to give the vote in the peaceable parish as 
 2,983 for Sypher and 2,627 for St. Martin. Therefore they proposed a resolution 
 declaring J. H. S^'pher entitled to the seat. 
 
 The minority filed no views, but in the debate * Mr. Michael C. Kerr, of Indiana, 
 after taking issue with the facts and law relied on by the majority on the question 
 of intimidation, presented returns, alleged to be official, showing that the vote of 
 the whole district was for Sypher 2,948 and for St. Martin 12,514. Mr. Kerr also 
 
 ' Globe, pp. 2618, 2649. 
 
 ^Journal, pp. 608-613. 
 
 'First session Forty-firet Congress, Journal, p. 180; Globe, p. 562; House Report No. 11. 
 
 * House Report No. 60, second session Forty-first Congress; 2Bartlett,p. 699; Rowell's Digest, p. 241. 
 
 =^ Globe, p. 2791. For the whole debate, Globe, pp. 2788-2796.
 
 222 PRECEDENTS OP THE HOUSE OF REPRESENTATIVES. § 334 
 
 claimed that the investigation had shown the actual vote cast in the entire district 
 to have been 3,150 for Sypher and 16,059 for St. Martin. He further alleged that 
 the registration made imder the auspices of the State administration, which was 
 of the same party as Mr. Sypher, reached a total of 29,992. Thus he claimed 
 that Mr. St. Martin received an actual majority of the total registered vote. Citing 
 the case of Smith v. Brown and the Louisiana State case of Fish v. Collins, he claimed 
 that the vote from the so-called peaceable parishes did not show a proper constit- 
 uency to be represented. 
 
 In the progress of the debate Mr. James A. Garfield, of Ohio, said that in the 
 case of Hunt v. Sheldon he had concluded that a very large proportion of the ter- 
 ritory and a majority of the population had been represented in these so-called 
 peaceable parishes. He then asked how far this principle would apply in the pending 
 case. 
 
 There was no agreement as to the actual vote, but it was admitted that St. Martin 
 had received as high as 12,504 of the registered vote of 29,922 and that Sypher had 
 not received over 3,150. Mr. Kerr denied that either this case or the Sheldon case 
 conformed to the rule stated by Mr. Garfield. 
 
 On April 20 ' the resolution declaring Mr. Sypher entitled to the seat was agreed 
 to — yeas 78, nays 73; but very soon, after a motion to adjoiu-n had been disagreed 
 to, a motion was made to reconsider. A proposition to table the motion to recon- 
 sider failed — yeas 79, nays 83. Then the House decided to reconsider — yeas 86, 
 nays 79. Thereupon the question recurred on the resolution declaring Mr. Sypher 
 entitled to the seat, when Mr. Thomas Fitch, of Nevada, proposed the following 
 substitute: 
 
 That there was no valid election held in the First Congressional district of the State of Louisiana on 
 the 3d day of November, 1868, and that neither J. H. Sypher nor L. St. Martin is entitled to a seat in 
 the Forty-first Congress as Representative from the First Congressional district of the State of Louisiana. 
 
 The substitute was agreed to— yeas 99, nays 70. Then the resolution as amended 
 was agreed to — yeas 96, naj's 68. 
 
 334. The Louisiana election cases of Hunt v. Sheldon, Sypher v. St. 
 Martin, etc., continued. 
 
 The House declared vacant a seat in a case wherein over half of 
 the total vote of a district had been rejected for intimidation. 
 
 Mr. George W. McCranie, of the Fifth district of Louisiana, had also presented 
 himself with a certificate from the governor of the State of Louisiana, but had not 
 been sworn in. Under the general rule adopted the Committee on Elections reported' 
 that he was unable to take the oath, having been engaged in rebellion. 
 
 The seat being claimed by Mr. Frank Morey, the Committee on Elections 
 reported as to the final right on April 27, 1870.' It appeared that the actual vote 
 cast in the district was — for McCranie, 13,716; for Morey, 3,424, and for P. J. Ken- 
 nedy, 3,076. The official retiu-ns, however, had rejected two parishes, leaving the 
 corrected vote — for McCranie, 11,107; for ilorey, 3,423, and for Kennedy, 3,076. 
 
 The grotinds of contest were thus stated in the report : 
 
 ' Journal, pp. 643-650; Globe, pp. 2849-2852. 
 
 - House Report No. 10, first session Forty-first Congress. 
 
 ^ House Report No. 62, second session Forty-first Congress; 2Bartlett, p. 719; Rowell's Digest, p. 243.
 
 § 334 ELECTORATES INCAPACITATED GENERALLY. 223 
 
 Mr. Morey claims the seat, and alleges that "a system of intimidation, threats, \'iolence, and lawless- 
 ness prevailed in the parishes of Jackson, Franklin, Claiborne, Bienville, Union, Morehouse, Caldwell, 
 and Catahoula prior to the election in November last; that Republicans were deterred and prevented 
 by fear from voting at all, or were compelled by threats and intimidation to vote the Democratic ticket 
 against their wishes, and that the election in the above-named parishes was a farce, a nullity, and an 
 outrage of the rights of the law-abiding citizens of the Fifth Congressional district of Louisiana." 
 
 In the parishes thus impeached the vote was — for McCrame,ll, 145; for Morey, 
 179; for Kennedy, 26. The committee show that this was a large falling off as com- 
 pared vdth previous years, and explain it by the testimony showing iatimidation, 
 which prevented some from voting and compelled others to vote against their 
 inclinations. The peaceful parishes showed a vote of 2,571 for McCranie, 3,438 for 
 Morey, and 3,050 for Kennedy. 
 
 The committee, Mr. Stevenson submitting the report, conclude: 
 
 The House has heretofore, in the case of Hunt r. Sheldon, adopted the rule that where it appears 
 that certain precincts and parishes (or counties) of a district have been carried by violence or intimi- 
 dation the returns tnerefrom shall be rejected, and the result derived from the returns from the peaceable 
 precincts and parishes for counties). 
 
 In the subsequent case of Sypher the House reftised to apply this rule to that case; and your com- 
 mittee, submitting to the judgment of the House, considers it a duty to reconcile these two cases if 
 possible. 
 
 We can not advise the House to abandon the principle adopted in Hunt v. Sheldon, which seems 
 of inestimable value in preventing lawless attempts upon the ballot box in the late rebellious States, 
 where a new voting population is peculiarly exposed to violence and intimidation by the former master 
 class, prone by habit and inclination to domineer over their former slaves; and therefore we accept the 
 decision of the House in Sj'pher's case, not as a reversal but as a limitation of the rule adopted in Shel- 
 don's case, and interpret the action of the House in Sypher's case to mean that the rule should not be 
 so far extended as to apply to such a case where less than one-fourth of the legal electors of the district 
 resided, and one-fifth of the registered vote was cast, within the peaceable parishes and precincts, and 
 the claimant received but a small majority of that vote. 
 
 In the present case the five peaceable parishes comprise about one-third of the territory of the 
 district and contain less than one-half the population and registered vote and return a minority of the 
 vote actually polled. 
 
 The contestant received in these parishes 3,428. The registered vote of the district was 23,103. 
 The registered vote of the five peaceable parishes was 10,400. The contestant received about one- 
 seventh of the registered vote of the district and about one-third of the vote cast in the peaceable 
 parishes. 
 
 Another objection to the claim of contestee is that if there had been a peaceable election in every 
 parish and precinct of the district the contestant could not have received a majority or even a plurality 
 of the votes cast, because the rejected parishes were Democratic at best. They gave a small Democratic 
 majority at the spring election in 1868, and would have increased it considerably at a peaceable elec- 
 tion in the fall. There were two Republican candidates, who divided their party vote about equally, 
 and it seems probable that they would have divided it in everj^ parish had the canvass and election 
 been peaceable, so that the contestant must have been defeated. We therefore conclude that the claim 
 of the contestant can not be sustained . 
 
 The committee also find that if they should consider the claim of Messrs. 
 McCranie and Kennedy thej' would fall under the same rule. Therefore the fol- 
 lowing resolution was recommended: 
 
 Resolved, That there was no lawful election in the Fifth Congressional district of the State of 
 Louisiana for Representative in the Forty-first Congress, and neither G. W. McCranie nor Frank Morey 
 nor P. J. Kennedy is entitled to a seat as Representative in the Forty-first Congress from the Fifth 
 Congressional district of the State of Louisiana.
 
 224 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 335 
 
 The report was considered by the House on April 28.' Although there had 
 been no minority views, Mr. Michael C. Kerr, of Indiana, opposed the report and 
 proposed to the resolution an amendment declaring Mr. McCranie elected. This 
 amendment was disagreed to — yeas 53, nays 104. Then the resolution recom- 
 mended by the committee was agreed to without division. 
 
 335. The Louisiana election cases of Hunt v. Sheldon, Sypher v. St. 
 Martin, etc., continued. 
 
 The House considered an election valid although in five of ten parishes 
 the vote, which was less than half the vote of the district, was rejected. 
 
 An examination of the acts necessary to justify a finding" of disloyalty 
 against a Member-elect. 
 
 A Member-elect may not take the oath until a motion to reconsider 
 the vote determining his title is disposed of. 
 
 From the Fourth district of Louisiana the credentials were presented by Mr. 
 Michael Ryan. He was not admitted on the prima facie showing, and on April 
 25, 1870,^ Mr. Samuel S. Burdett, of Missouri, from the Subcommittee on Elections, 
 presented a report dealing both with the qualifications of Mr. Ryan and with the 
 claims of the contestant, J. P. Newsham. 
 
 1. As to the loyalty of Mr. Ryan, the report says: 
 
 The question of the ineligiliility of Mr. Ryan put in issue by the contestant is first to be determined. 
 It is admitted that contostoe comes within the description of persons set out in the third section of the 
 fourteenth article of amendments to the Constitution by having previously taken an oath as a mem- 
 ber of the legislature of the State of Louisiana to support the Constitution of the United States. That 
 he did give aid and comfort to the enemies of the United States is confidently asserted by contestant, 
 and much evidence has ))een produced pro and con to meet that issue. 
 
 The substantive proofs adduced to sustain the charge of ineligibility are, that Mr. Ryan, in the 
 early part of the year 1802, made a speech to a company of Confederate soldiers, encouraging them in 
 their fight for secession. (See testimony of Harry Lott, vol. 1, p. 421; of Calhoun, p. 421, q. 8672; of 
 Barlow, p. 587, q. 115.S9.) That after the inauguration of the rebellion he wore in public on several 
 occasions the uniform of the Confederate military service and was an officer in a local or home company 
 of troops. 
 
 These substantive charges are not seriously disputed, but the motive and circumstances of them 
 are put in issue by Mr. Ryan. For him it is contended that he was, notwithstanding appearances, at 
 heart a Union man. The proof of his allegiance, however, is only to be found in political associations 
 and sentiments formed and uttered before actual war liegan, and, after the beginning of hostilities, of 
 declarations against the policy of the secessionists, conversationally made in the hearing of known 
 Union men and personal friends. It does appear generally from the evidence that Mr. Ryan from 
 the first seriously doubted the ability of the rebel leaders to carry their designs to a successful issue, 
 and that he comprehended and deprecated the inevitable waste and destruction that must follow such 
 a failure; but it does not appear that he ever, after the beginning of actual strife, called in question the 
 right of secession or the desirableness of success to the Southern arms, provided only they should suc- 
 ceed; much less is there anywhere to be found evidence of any hearty word spoken or deed performed 
 favorable to the Union and for the Union's sake. 
 
 That the rebel military authorities were impressed with full confidence in his fealty to their cause 
 is evidenced by the fact that he remained undisturbed at his home and unquestioned by them, while 
 the few of his neighbors who were Union men in sentiment, on the bare announcement of that fact or 
 
 1 Journal, pp. 693, 694; Globe, pp. 3069-3074. 
 
 ^House Report No. 61, second session Forty-first Congress; 2 Bartlett, p. 724; Rowell's Digest, p. 244. 
 
 I
 
 § 335 ELECTORATES INCAPACITATED GENERALLY. 225 
 
 on the merest suspicion of its existence, were compelled to seek safety by fliglit, or, remaining, to endure 
 insult, imprisonment, or death; and this, too, notwithstanding that by birth, social standing, long 
 residence, and large wealth of lands and slaves they were as fully entitled to the regard and considera- 
 tion of the rebel authorities as it was possible for Mr. Ryan to be. 
 
 The minority filed no views; but in debate Mr. Kerr denied the charges of dis- 
 loyalty, contendino; that the evidence did not prove them. 
 
 2. As to the final right — and in the debate the majority declared that the deci- 
 sion as to final right left little effect to the disqualification — the majority found Mr. 
 Newsham entitled to the seat. The district comprised ten parishes, and the offi- 
 cial returns showed a vote for Ryan of 10,385, and for Newsham of 5,606. In five 
 of these parishes, where fraud and intimidation were charged, the returned vote 
 was, for Ryan, 7,342; for Newsham, 46. The committee showed that in former 
 elections in these five parishes there had been no such disparity of parties, and 
 explained it by fraud and intimidation, which they considered proven. They 
 conclude : 
 
 We assert the truth to be that in the contested parishes the result obtained was accompanied and 
 secured by the use of unlawful means, and by the practice of oppressions and barbarities seldom equaled 
 in any age or country, and that the several polls in all of said parishes ought to be excluded from the 
 count. 
 
 Going back of the official returns, the report finds the wliole number of votes 
 cast in the district 20,500, the registration being 25,027. In the peaceful parishes 
 they found a total vote of 13,112, of which Newsham had 7,210 and Ryan 5,902. 
 The report concludes: 
 
 The committee does not cite the vote cast in the peaceable parishes as truly representing the popu- 
 lar will in those parishes. On the contrary, there were disorders, to the detriment of the contestant, in 
 several of these parishes. Many of his supporters were by unlawful means kept from the polls and 
 others compelled against their will to support his competitor. 
 
 The committee, therefore, recommends that the returns from such fif the parishes of the Fourth 
 district as are shown to have been controlled by the appliances of fraud and violence be excluded from 
 the count. 
 
 A due regard for the rights of the faithful men of Louisiana, whose will was defeated, demands it, 
 while every consideration of future peace for them and of safety to the State imperatively requires it. 
 
 We therefore recommend the adoption of the following resolutions: 
 
 Resolved, That Michael Ryan is not entitled to a seat as a Representative in the Forty-first Con- 
 gress from the Fourth district of Louisiana. 
 
 Resolved, That .L P. Newsham is entitled to a seat as a Representative in the Forty-first Congress 
 from the Fourth district of Louisiana. 
 
 The report was debated on May 20 and 21,* and on the latter day a resolution 
 proposed by the minority and declaring Mr. Ryan entitled to the seat was disagreed 
 to — ayes 54, noes 79. Then the resolution of the majority declaring Mr. Newsham 
 entitled to the seat was agreed to — yeas 79, nays 71. 
 
 Mr. Charles A. Eldridge, of Wisconsin, moved to reconsider the vots. 
 
 Mr. Stevenson submitted that nothing was in order but the swearing in of Mr. 
 Newsham. 
 
 ' Globe, pp. 3640, 3694-3700; Journal, p. 818. 
 5994— VOL 1—07 15
 
 226 PKECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 336 
 
 The Speaker ' overruled the point of order, sayin^ — 
 No legislation is complete until the power to reconsider is exhausted. 
 
 On May 23 ^ the motion to reconsider was laid on the table — yeas 94, nays 80. 
 
 Mr. Ncwsham then took the oath. 
 
 336. The Louisiana election cases of Hunt /•. Sheldon, Sypher i\ St. 
 Martin, etc., continued. 
 
 Returns of five of twelve parishes being rejected for intimidation, the 
 House seated a contestant on the vote of the seven peaceful parishes. 
 
 On April 28, 1870,^ Mr. Stevenson presented the report in the last Louisiana 
 case, that of Darrall v. Bailey. The committee say that — 
 
 The bloodiest rioting; and the darkest deeds which were done in the State were committed in these 
 contested parishes of this district. 
 
 Fraud and violence were alleged as in the other districts. The report states 
 the case as to the vote as follows: 
 
 Both parties affirm the validity of the election in seven parishes, while the contestee affirms and 
 the contestant denies the validity of the election in five parishes, including St. Martin, from which 
 there is no valid return, and which must, in any event, be rejected. 
 
 THE REGISTRY — WHITE AND COLORED. 
 
 The number of registered electors in the district was 28, 486 
 
 Of colored electors 18, 881 
 
 Majority of colored voters 9, 276 
 
 The colored nearly double the white voters. 
 
 PEACEABLE AND VIOLENT. 
 
 The entire registry 28, 486 
 
 That of the seven uncontested parishes was 15, 294 
 
 That of the contested parishes 1,3, 192 
 
 A majority in the peaceable parishes of 2, 102 
 
 THE VOTE. 
 
 The vote cast (including the alleged vote of St. Martin, of which there is no return) was 26, 106 
 
 The vote in the uncontested parishes was 14, 627 
 
 The vote in the contested parishes (including alleged vote of St. Martin) was 11, 479 
 
 Majority in the peaceble parishes 3, 148 
 
 There can be no question, therefore, whether there was a valid election in the part of the district 
 which is uncontested. It contained nearly two-thirds of the territory and a large majority of registered 
 electors and of actual voters. 
 
 The report finds that the report from the violent parishes should be rejected, 
 and that in the peaceable parishes Darrall had 7,436 and Bailey 7,191. The 
 report concludes: 
 
 It may be added that the general condition of the State affected the Republican vote in these 
 parishes, and that if peace and quiet had prevailed through the State the Republican majority would 
 
 ' Globe, p. 3700. James G. Blaine, of Maine, Speaker. 
 
 = Journal, p. 830; Globe, p. 3733. 
 
 ^ House Report No. 63, second session; 2 Bartlett, p. 754; Rowell's Digest, p. 246.
 
 § 337 ELECTORATES INCAPACITATED GENERALLY. 227 
 
 have been much heavier, and in the whole district the contestant would have received a large majority. 
 The colored registered vote of the district was nearly double the white, and many white men would, 
 if permitted, in peace, have sustained the Republican party. We therefore feel that the result reached 
 is not only legally correct, but that it carries out the will of a verj' large majority of the people of the 
 district, while it vindicates the rights of the people we are bound to protect. 
 
 We therefore recommend the adoption of the following resolutions: 
 
 Eesohed, That .^dolphe Bailey is not entitled to a seat as Representative in the Forty-first Congress 
 from the Third district of Louisiana. 
 
 Resolved. That C. B. Darrall is entitled to his seat as Representative in the Forty-first Congress 
 from the Third district of Louisiana. 
 
 The case was debated on Jul}' 2/ and on that day Mr. Kerr submitted a 
 minority proposition declaring that Mr. Bailey was entitle! to the seat and should 
 be admitted thereto. This was negatived — yeas .37, nays 97. 
 
 The question recurring on the resolution declaring Mr. Bailey not entitled 
 to the seat, it was agreed to without division. 
 
 Then the resolution declaring Mr. Darrall entitled to the seat was agreed to — 
 yeas 67, nays 64. 
 
 A motion to reconsider was made, and on July 6 ^ was laid on the table — yeas 96, 
 nays 77. 
 
 Mr. Darrall then took the oath. 
 
 337. The first Loiiisiana election case of Benoit v. Boatner in the 
 Fifty-fourth Congress. 
 
 A notice of contest, drawn in general terms, was held to cover suffi- 
 ciently the various claims made upon the testimony and in the argu- 
 ments. 
 
 The service of notice of contest at the residence is sufficient compli- 
 ance with the law. 
 
 On March 19, 1896,^ the Committee on Elections No. 2, through Mr. R. W. 
 Tayler, of Ohio, reported in the first case of Benoit v. Boatner, of Louisiana. 
 
 This case involved, besides the merits, the following preliminary question, thus 
 stated by the committee: 
 
 The contestant, on the 16th day of January, 1895, caused tobe6erved,attheplaceof residence of the 
 contestee, a copy of his notice of contest. The contestee at that time was absent from the State of 
 Louisiana, and it is admitted that under the law of that State it is sufficient notice of any suit to make 
 service of the same at the place of residence of the defendant. The contestee moved to dismiss this pro- 
 ceeding on the ground that no proper notice of contest was served upon him as required by the Revised 
 Statutes. The committee was of the opinion and held that the service of the notice in the manner stated 
 was sufficient under the L^nited States Statutes and was precisely the kind of notice which was held to 
 be sufficient in the case of Manzanares ■i^ Luna, in the Forty-eighth Congress. The contestee duly served 
 upon the contestant his answer, and the parties proceeded to take testimony in all respects as if no ques- 
 tion had been raised as to validity of contestant's service of notice. The contestant's notice of contest, 
 while in general terms, was not seriously questioned as to form, and sufficiently covered the various 
 claims made upon the testimony and in the arguments. 
 
 ' Globe, pp. .5139-5143; Journal, pp. 1141, 1142. 
 
 ' Journal, p. 1159. 
 
 ^ House Report, first session Fifty-fuurlh Congress, No. 867; Rowell's Digest, p. 519.
 
 228 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 338 
 
 338. The first Louisiana election case of Benoit v. Boatner, continued. 
 
 Intimidation and fraud having destroyed the integrity of an election 
 in 10 of 15 parishes, the House declared the seat vacant. 
 
 Discussion of the extent and degree of intimidation and fraud justi- 
 fying rejection rather than purging of the poll. 
 
 A case in which the committee considered historic facts in judging 
 validity of an election wherein appeared many irregularities on the part 
 of election oflicers. 
 
 As to the merits of the case, it appeared on the face of the official returns that 
 sitting member had a majority of 9,526. The district consisted of 15 parishes. In 
 5 of these the fairness of the election was not questioned. The controversy was 
 confined to the 10 parishes where the colored males over 21 years of age numbered 
 21,459 and the white males over 21 j^ears numbered 7,543. These facts the com- 
 mittee present from the census of 1890. 
 
 After sketching the provisions of the election law of Louisiana, the majority of 
 the conunittee proceed to an analysis of the testimony in regard to the 10 parishes. 
 
 First are examined the 4 "river parishes" of East Carroll, Madison, Tensas, 
 and Concordia, where the returns gave the sitting member 7,124 votes and 81 to the 
 contestant. The majority call attention to the fact that in these parishes the white 
 males over 21 j'ears of age numbered only 1,765, while the colored males of age num- 
 bered 12,454. Therefore the colored voters mnet have voted in large numbers for 
 sitting member, who was a Democrat, if the returns were true. Yet the majority 
 feel convinced that the colored voters were all Republicans. The testimony showed 
 that it had been a custom to count the colored voters for contestant's party; that 
 the registration list was enormously padded; that the poll books and tally sheets 
 had disappeared in almost every precinct of the river parishes; that no election 
 officers could be discovered who knew anything about them; that many election 
 officers refused to obey subpoenas, and others, on examination, refused on technical 
 grounds to answer as to the records; that very few of the returns were sworn to, 
 although the law requiring it was mandatory; that in some precincts the election 
 officers signed the returns in blank ; that the right of suffrage in these parishes was 
 a farce ; and that the sitting member admitted in his written statement filed with the 
 committee that of the 7,124 votes counted for him in these 4 parishes over 6,000 
 ought to be excluded. 
 
 In Catahoula Parish the same character of frauds prevailed, with the addition 
 that the alphabetical mode of voting people who were dead or not at the polls was 
 to some extent resorted to. 
 
 The committee reviewed the remaining 5 parishes, quoting testimony which 
 satisfied the majority that intimidation was general and that the planters very 
 generally considered themselves as having the right to determine how their colored 
 employees should vote. 
 
 In conclusion, the majority of the committee conclude that the right of suffrage, 
 as recognized by the Constitution and the laws, did not exist in at least 10 of the 15 
 parishes. After noting the remarkable state of the vote in the river parishes, the 
 majority say: 
 
 If no question were raised as to the validity of the election outside of the river parishes, the House 
 in justice to itself and in the interest of fair and honest elections, giving full weight to the facts apparent
 
 § 338 ELECTORATES INCAPACITATED GENERALLV. 229 
 
 in this testimony, •would be compelled to declare the election void. It could not declare the contestant 
 elected because it can not say, and the contestant did not have it in his power to determine, how many 
 votes the contestant would have received in those 4 parishes if a free and honest election had been 
 conducted. It would have been physically impossible to take the testimony of 6,000 or 8,000 witnesses 
 as to the person for whom they voted or would have voted if permitted to cast their ballots, and in addi- 
 tion to that the ver>' circumstances that prevented their voting would have prevented their testif)-ing. 
 
 This case discloses as well the difficulty in obtaining testimony and inducing men to testify as it 
 does the intimidation practiced to prevent their voting. To invoke the rule which demands that 
 returns from the tainted precincts be thrown out would still leave the contestee elected. It seems to 
 us that in such a case the only thing that can be done is to declare the election void. To do otherwise 
 would be to furnish an easy, safe, and certain mode of perpetrating a stupendous fraud, and the more 
 stupendous the more effective. 
 
 We therefore conclude as matters of fact: 
 
 First, that fraud, ^^olence, and intimidation so permeated the election of November 6, 1894, except 
 in the parishes of Claiborne, Franklin, Jackson, Lincoln, and West Carroll, that there was no free expres- 
 sion of the popular will; that fraud, violence, and intimidation were so extensive and general as to 
 render it certain that there was no fair and free expression by the great body of the electors, more than 
 two-thirds of the electors of the district residing in the remaining 10 parishes. 
 
 Second, that in v'iew of the fact that the majority for the contestee in the 11 parishes outside of 
 the river parishes was 2,483, and that in the river parishes, where there is a majority of over 10,000 
 negroes of voting age. fraud was universal; that while it is impossible to determine how many votes the 
 contestant would have received if a fair and honest election had been held, justice and good morals 
 revolt against the proposition that any valid election was held. 
 
 We therefore hold as a proposition of law, growing out of the principle laid down in S>'pher v. St. 
 Martin, as follows: 
 
 "If fraud, violence, and intimidation have been so extensive and general as to render it certain 
 that there has been no free and fair expression by the great body of the electors, then the election must 
 be set aside, notwithstanding the fact that in some of the precincts or parishes there was a peaceable 
 and fair election." 
 
 The views of the mmority, submitted by Mr. Joseph W. Bailey, of Texas, 
 review the testimony, reaching a conohision different from that reached by the 
 majorit}-, ahhough admitting that certain precincts should be rejected, energetically 
 protests against the conclusion of the majority, and says: 
 
 If permissible at aU to declare an election void, it could, in our judgment, be legally done only in 
 extreme cases where, by violence, widespread and concerted intimidation and fraud, it would become 
 impossible to eliminate the lawful and voluntary vote from the tinlawful and fraudulent and that 
 which had been cast under the influence of fear. 
 
 In this case not only do such conditions not exist, but if every poll attacked by contestant, and 
 against which he has adduced any evidence, be excluded from the count, contestee still has a majority 
 of 327; but giving the evidence fair consideration, and excluding only the vote which is shown to have 
 been fraudulent and intimidated, contestee's majority is 5,188. 
 
 Therefore the minority recommended a resolution declaring sitting member 
 entitled to the seat. 
 
 On March 20, 1896,' the report was debated in the House, and then a decision 
 was obtained on the motion to substitute the minority resolution for that of the 
 majority. That motion was disagreed to — ^yeas 59, nays 132. Then withotit 
 division the resolution of the majority was agreed to, declaring — 
 
 That there was no valid election held in the Fifth Congressional district of the State of Louisiana 
 on the 6th day of November, 1894, and that neither Alexis Benoit nor Charles J. Boatner is entitled to 
 a seat in the Fifty-fourth Congress as Representative from the Fifth Congressional district of Louisiana. 
 
 ' Journal, p. 328; Record, pp. 3035-3051.
 
 230 PRECEDENTS OE THE HOUSE OF REPRESENTATIVES. § 339 
 
 339. The second Louisiana election case of Benoit v. Boatner in the 
 Fifty-fourth Congress. 
 
 Where the provisions of law are insufficient to secure a decision in an 
 election case the House prescribes by resolution the course of procedure. 
 
 On February 5, 1897,' Mr. Henry U. Jolinson, of Indiana, from the Committee 
 on Elections No. 2, submitted the report of the majority of the committee in the 
 second case of Benoit v. Boatner, of Louisiana. At the first session of the Fifty- 
 fourth Congress, as the result of a contest between the same parties, ^ the seat had 
 been declared vacant. Thereupon, on June 10, 1896, a special election was held 
 in the district, and Mr. Boatner was returned by 10,557 votes, against 5,989 returned 
 for Mr. Benoit. 
 
 On December 10, 1896,^ Mr. Boatner appeared with the credentials and was 
 sworn in. Mr. Benoit meanwhile had contested the election, charging wholesale 
 frauds and intimidation. 
 
 On January 14, 1897,^ a letter from the Clerk was laid before the House announc- 
 ing that if tliis case should take the usual course prescribed by law, allowing tlie 
 full time of sixty days to be used in the preparation of briefs, it could not reach the 
 House before final adjournment. This letter was referred, with the testimony, to 
 the Committee on Elections No. 2, and the testimony was ordered to be printed. 
 
 On January 15 ^ the committee reported the following resolution, which was 
 agreed to: 
 
 Resolved, That the Committee on Elections No. 2, to which the contested-election case of Alexis 
 Benoit against Charles J. Boatner, from the Fifth Congressional district of Louisiana, has been referred, 
 be, and is hereby, instructed and authorized to proceed to the consideration of said case, and, having 
 first afforded to said parties a fair opportunity to be heard as to the merits of the same, to report to the 
 House their conclusions with respect to such case in time to afford to the House an opportunity to deter- 
 mine the same during the present session of Congress. 
 
 340. The second Louisiana election case of Benoit v. Boatner, contin- 
 ued. 
 
 An election in a district was not declared void on account of invalid- 
 ity in one-fifth of the parishes, affecting less than a third of the vote. 
 
 Discussion of the degree of duress which may be considered intimida- 
 tion justifying rejection of a poll. 
 
 Intimidation justifying rejection of a poll may fall short of physical 
 violence against the person and need not fall within the actual time of 
 the election. 
 
 Although a parish, in a region wherein intimidation might be 
 expected, showed a marvelous unanimity in the vote, the committee de- 
 clined to reject the poll. 
 
 An election being held without the required poll list, and there being 
 other suspicious circumstances, the poll was rejected. 
 
 ' Second session Fifty-fourth Congress, House report No. 2808; Rowell's Digest, p. 526. 
 ^ See section 338 of this work. 
 ' Journal, p. 20. 
 
 * Journal, p. 83. 
 
 * Journal, p. SG. 
 
 I
 
 § 340 ELECTORATES INCAPACITATED GENERALLY. 231 
 
 The conduct of the election officers of a parish being thoroughly per- 
 meated by fraud, the returns were rejected. 
 
 The report of the majority of the committee, after reviewing the conditions 
 of population, the law of the State as to elections, and noting the fact that the con- 
 testant carried the parishes where white population predominated, while the 
 sitting Member was strongest in the so-called "colored" parishes, proceeds to 
 examine the testimony in detail, and to make the corrections shown to be just. 
 
 1 . The votes of two parishes were rejected entirely : (a) In Tensas Parish, where 
 the commissioners of election were all supporters of the sitting member, the returns 
 many gave him 2,067 votes, and contestant 141. In several precincts no votes at 
 all were returned for contestant, of itself a very suspicious circumstance, but the poll 
 lists showed that not only were dead and absent persons recorded as voting, but in 
 many precincts the election officers returned the registered list of voters instead of the 
 vote as actually cast. The law required the election commissioners to write down 
 the names of the voters in exact order as they voted, but in many cases the names 
 are recorded alphabetically. In one precinct this peculiarity permeated the entire 
 list of 621 names. The contestant was able to examine only one Avitness in the 
 parish, the officers of the law on whom he depended for the serving of subpoenas 
 refusing or neglecting to do their duty. Although the evidence impeached the 
 fairness and integrity of the commissioners of election in the parish, the sitting 
 Member produced not one of them to testify. The majority of the committee 
 were "of the opinion that the election in this parish was a sham and a fraud and 
 that the returns therefrom ought to be wholly rejected." The minority of the com- 
 mittee, whose views were presented by Mr. Joseph W. Bailey, of Texas, agree that 
 this parish should be excluded. 
 
 (b) From Ouachita Parish the returned vote was 1,777 for Boatner and 631 
 for Benoit. The majority of the committee concluded that the evidence "taken 
 as a whole, establishes the fact that there was such intimidation practiced upon 
 the colored voters as to prevent a free and fair election there, and that for this 
 reason the vote of Ouachita Parish should be rejected from the count." The com- 
 mittee continue : 
 
 It appears that for many years, commencing in the year 1876, personal violence had been openly 
 inflicted upon the colored electors by the white Democrats of the parish with a view of depriving them 
 of their right of suffrage. This measure had worked the desired effect and had very largely deterred 
 them from voting. 
 
 The evidence shows that this open personal injury was not deemed by these whites to be necessary 
 in very recent years, and therefore was only occasionally inflicted. Milder, but nevertheless lawless 
 and coercive expedients were accordingly substituted for it by them. The colored voter, with a vivid 
 recollection of the great wrongs to which he had been subjected, needed only to be threatened with a 
 recurrence of these wrongs in order to deprive him of his free will, and either keep him from the polls 
 altogether, or else compel him to vote the Democratic ticket. 
 
 Accrodingly, the latter-day plan and the one employed at this election by the friends and sup- 
 porters of Boatner consisted in "visiting" him before the election and in threatening him with the 
 consequences in the event he dared to vote his own sentiments. 
 
 The Democratic planters claimed and exercised the right to vote their " black hands" for Boatner. 
 These "hands" were too timid and defenseless to make any resistance and hence became the victims 
 of this unlawful practice.
 
 232 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 340 
 
 The majority of the committee also say: 
 
 In pa&jing upon this question of intimidation tlio committoe have had in mind certain proposi- 
 tions which seemed to them to be sound, and in the light of which they have reached the conclusion 
 above announced. 
 
 They recognized the fact that coercive measures do not operate alike upon all voters. That which 
 would have no effect whatever upon one class might, nevertheless, exert an irresistible influence upon 
 another class. 
 
 It is therefore believed that in determining whether or not intimidation exists in any case, due 
 regard should always be had to the mental and physical organization of the particular electors upon 
 whom the wrong is charged to have been inflicted, their relation to the alleged ^Tongdoers, their con- 
 dition of dependence or independence, and, indeed, to their whole environment as well as to the char- 
 acter and disposition of the wrongdoers themselves. Nor is it, in the opinion of the committee, cither 
 a logical or a just doctrine that the oppressive acts which will avoid an election must necessarily be of 
 such a character as to overpower the will of voters of reasonable courage and intelligence. Such a 
 principle as this woiUd, in its practical operations, result in the disfranchisement of the weak and the 
 ignorant electors, who should ever be the object of the law's solicitude, and in the arrogation of polit- 
 ical power into the hands of the electors who are strong and well informed. 
 
 It is evident, too, that physical violence against the person of the elector is not the sole criterion 
 by which the existence or nonexistence of intimidation is to be determined, since some electors might 
 be beaten without being at all terrorized, while other electors might be put in great fear without the 
 striking of a single blow. Nor do the committee lielieve that in passing upon the question as to whether 
 intimidation prevailed the examination should be limited to the unlawful acts committed against the 
 voters at the very time of the election in contest. It is oftin the case that preceding occurrences, 
 although somewhat remote in point of time, give great significance and momentum to recent acts of 
 oppression, and thus become very proper subjects for examination and consideration. 
 
 The minority of the committee do not consider that the evidence supports 
 the conclusions of the majority as to intimidation, and do not assent to the exclu- 
 sion of the vote. 
 
 2. In other parishes the majority of the committee corrected, but did not 
 reject, the entire returns. 
 
 (a) In Concordia the returns gave sitting Member 1,675 votes and contestant 
 46. In several precincts no votes at all were returned for contestant. The testi- 
 mony showed some informalities and irregularities, but there was other testimony 
 that the election was fairly and honestly conducted. The committee, therefore, 
 except for a slight correction in one precinct, did not interfere with the vote as 
 returned, "although they regard the practical unanimity of the electors upon one 
 candidate as one of the most remarkable occurrences in modem politics." 
 
 (b) At Madison Parish one witness testified as to indimidation and one as to 
 bribery, but the committee determined that the returned vote should stand. 
 
 (c) In Catahoula Parish the majority of the committee reject the entire vote 
 of the Jonesville precinct, which returned 497 for Boatner and none for Benoit. 
 In tliis precinct the election officers were all of sitting Member's party, the regis- 
 trar of the parish failed to furnish the poll list, as required to do by law, and there 
 was evidence to show not only that the returned vote was greater tlian the num- 
 ber of voters in the precinct, but also that it was far larger than the number who 
 actually voted. The committee say: 
 
 In the absence of the poll list it was of course impossible to hold a fair and honest election, for 
 the reason that it could not be definitely known who was entitled to vote.
 
 § 341 ELECTORATES INCAPACITATED GENERALLY. 233 
 
 In Glade precinct, where 115 votes were returned for sitting Member and none 
 for contestant, uncontradicted testimony showed that only 30 honest votes were 
 polled, all for Boatner. Therefore the committee credited liim only with that 
 number. 
 
 A similar correction was made at Robertson precinct, where the election offi- 
 cers swore that the tally sheets had been tampered with and their names thereto 
 forged. The testimony of these officers, who were partisans of sitting Member, 
 indicated that 23 honest votes were probably cast for sitting Member and 2 for 
 contestant. The committee adopt these figures instead of 135 for sitting Member 
 and 2 for contestant as returned. 
 
 The majority of the committee, in conclusion, find that with all the deductions 
 and rejections there still remains a majority of 802 for sitting Member. Therefore 
 they conclude : 
 
 While the e^-idencc establishes the fact that flagrant frauds were perpetrated in all of Tensas Par- 
 ish, and in a portion c f Catahoula Parish, and that intimidation prevailed generally throughout the 
 parish of Ouachita, still the committee do not feel justified in recommending that the election be held 
 void and the seat declared vacant, for the reason that these three parishes constitute only one-fifth of 
 the total parishes of the district, and their entire rejected vote does not amount to one-third of the vote 
 cast therein at the election. 
 
 The committee are not sure that the fraud and intimidation were so extensive and general 
 throughout the district as to render it certain that there was not a free and fair expression by the great 
 body of the electors, however strongly they may suspect this to have been the case. 
 
 The resolutions confirming sitting Member in his seat were agreed to without 
 division on February 15.' 
 
 341. The Louisiana election case of Seattle v. Price, in the Fifty- 
 fourth Congress. 
 
 An election having been peaceable in three-fourths of a district, it 
 was not declared invalid because of violence and intimidation in the re- 
 mainder. 
 
 On February 5, 1897," Mr. Robert W. Tayler, of Ohio, from the Committee 
 on Elections No. 2, submitted the report of a majority of the committee in the 
 case of Beattie v. Price, of Louisiana. The official returns gave the sitting Member 
 a plm-ality of 5,766 votes over the contestant, which the contestant sought to 
 overcome, alleging fraud, violence, and intimidation. 
 
 As to a preliminary question the committee say: 
 
 An important preliminary question arose on the motion made by the contestee to suppress a portion 
 of the contestant's evidence on the ground that it had not been taken in compliance with the law. 
 This objection in the main was to the effect that no proper notice had been given that the testimony 
 of the witnesses would be taken and that there was no evidence of the official character of the persons 
 before whom the testimony was taken. 
 
 Your committee has examined all of the testimony in the case, but, in view of the conclusion at 
 which it has arrived, it is not necessary to decide upon this preliminary motion. We have considered 
 the testimony as if it had been regularly taken, but are not to be understood as approving or justifying 
 the taking of testimony without serving notice on the opposite side of the names of witnesses to be 
 examined. 
 
 'Journal, p. 174. 
 
 ^ House Report No. 2812, second session Fifty-fourth Congress; RoweU's Digest, p. 527.
 
 234 PRECEDENTS OF THE HOUSE OF REPKESENTATIVES. § 341 
 
 The majority of the committee note the fact that the population of the dis- 
 trict consisted of 115,533 whites and 98,916 colored people; and cjuote documents 
 to show that contestant was the nominee of an organization of white Republicans 
 who discouraged the cooperation of colored Republicans. The minoritj', in their 
 views (subscribed to by Messrs. Henry U. Johnson, of Indiana, Chester I. Long, 
 of Kansas, and Jesse B. Strode, of Nebraska), deny this proposition, and claim 
 that in many districts the organization invited the cooperation of colored voters. 
 
 Both majority and minority of the committee agreed that contestant had not 
 made out a title to the seat; but join issue on the question as to whether or not 
 there was a valid election. The majority of the committee say: 
 
 There is nothing in this case to justify the claim tliat there was "no free and fair expression by 
 the great body of the electors." 
 
 So far as the testimony shows there was a "peaceable and fair election" in not only "some of the 
 precincts and parishes," but in most of them. 
 
 There are 16G polling places in the district, and as to more than three-fourths of them there is not 
 a syllaljle of testimony showing fraud, violence, or intimidation. If we were to admit all that the 
 contestant claims as to the force and effect of the testimony respecting certain precincts, and then 
 infer that like conditions existed in the 125 precincts concerning which there was no such testimony, 
 we might be led to take a drastic course. If we did, we should be compelled to seat the contestant. 
 No matter which way we look, or what construction we put on the testimony, we must hold that either 
 the contestant or the contestee is entitled to a seat in this House. 
 
 There is evidence showing that in several of the parishes of this Congressional district there was 
 some violence. This existed probably by reason of the momentum of earlier resorts to violence and 
 intimidation. In the parisli of Lafourche two colored men lost their lives and one disappeared. The 
 supporters of the contestant insists that these deaths, which were violent, and the disappearance were 
 due to the fact that the three colored men were supporters of the contestant. The testimony, while 
 inconclusive, points in that direction as to Talley \Miitehurst. 
 
 After describing the murder of Wliitehurst, the majority say: 
 
 Atrocious as this crime was, whatever may have been its cause, it had but little if any effect on the 
 election, and, coupled with every other circumstance of fraud, violence, or intimidation, testified about 
 in the district, is very far from seriously affecting the plurality the contestee received. 
 
 The minority say, however: 
 
 In our opinion the record discloses widespread intimidation of the colored voters by the supporters 
 of Price — intimidation practiced in a majority of the parishes of the district, the effect of which was to 
 deter gi'eat numbers of them from attending the election and casting their ballots for Beattie. 
 
 For instance, the killing of Tally Whitehurst, a prominent colored Republican, and a supporter of 
 Beattie, who resided in the parish of Lafourche, is clearly shown by the evidence to have been a cold- 
 blooded and premeditated murder, perpetrated by some of the white friends and supporters of Price, a 
 few days before the election, solely for political purposes, and to intimidate the colored voters. 
 
 It appears that this miuder had the desired effect not only in Lafourche but also in one or two of the 
 adjoining parishes. 
 
 We concur in the opinion of the committee that Beattie is not entitled to be seated, but disagree with 
 their conclusion that Price is entitled to the seat. 
 
 We are convinced that fraud and intimidation prevailed so extensively and generally throughout 
 the district as to prevent a free and fair expression by the great body of the electors, and we believe, 
 therefore, that the election should be declared void and the seat left vacant. 
 
 The majority report and minority views were ordered printed when presented 
 in the House on February 5,' but there is no record of further action. 
 
 'Journal, p. 143; Record, p. 1586. 
 
 I
 
 § 342 ELECTORATES INCAPACITATED GENERALLY. 235 
 
 342. The Senate election case of Sykes v. Spencer, from Alabama, in 
 the Forty-third Congress. 
 
 The Senate gave immediate prima facie effect to credentials regular in 
 form, but impeached by a memorial and historical facts relating to rival 
 legislatures. 
 
 The question of the competency of the electing legislature as an in- 
 herent part of a prima facie showing discussed by the Senate. 
 
 On December 13, 1872,^ in the Senate, Mr. Oliver P. Morton, of Indiana, pre- 
 sented the credentials of George E. Spencer, elected a Senator by the legislature of 
 Alabama for the six years commencing March 4, 1873. 
 
 On February 28, 1873,^ Mr. George Goldthwaite, of Alabama, presented a 
 memorial of Francis W. Sykes, claiming the seat for which Mr. Spencer had creden- 
 tials. This memorial impeached at length the title of Mr. Spencer. 
 
 On March 6, 1873,^ during the swearing in of the new Senators, Mr. Thomas 
 F. Bayard, of Delaware, objected to the administration of the oath to Mr. Spencer, 
 on the ground that another claimant bore credentials for the seat. 
 
 It appeared that Mr. Spencer bore credentials in regular form— or at least in 
 form as regular as most credentials presented — and signed by a governor whose 
 position, both de jure and de facto was unquestioned. But the Senate had knowl- 
 edge, both from the memorial of ^Ir. Sj'kes and historically, that Mr. Spencer was 
 elected bj- one of two legislative bodies, each claiming to be the legislature of 
 Alabama. 
 
 It appeared that there was presented on behalf of Mr. Sykes as credentials 
 certificates signed by the officers of the other of the two rival bodies setting forth 
 his election. 
 
 In the debate the cases of Goldthwaite and Ransom were referred to as recent 
 precedents. 
 
 The prima facie effect of credentials was discussed at length, and it was urged 
 on the one side that the competency of the legislature electing was an essential 
 question inhering in the prima facie case. 
 
 On the other hand it was urged that Mr. Spencer was certified as elected in 
 accordance with the law of Congress (act of 1866), and the effect of that title should 
 not be overthrown by a mere memorialist. 
 
 On March 7* a motion to postpone the administration of the oath to Mr. 
 Spencer until the next day was disagreed to — yeas 24, nays 32. 
 
 Then, after further debate, the question was taken: "Shall the oath be now 
 administered to ilr. Spencer?" and it was decided in the affirmative without 
 division.^ 
 
 Thereupon A^Ir. Spencer appeared and took the oath. 
 
 ' Third session Forty-second Congress, Globe, p. 172. 
 
 ^ Globe, p. 1930. Also Senate Misc. Doc. No. 94, Third session Forty-second Congress. 
 
 ^ Special session of Senate, Forty-third Congress, Record, pp. 3-29. 
 
 * Record, p. 22. 
 
 ' Record, p. 29.
 
 236 PRECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 343 
 
 On December 8, 1873,' Mr. Jolxn B. Gordon, of Georgia, submitted the follow- 
 ing resolution; which was considered by unanimous consent, and agreed to: 
 
 Resolved, That thp memorial of Francis W. Sykes, claiming to be a Senator-elect from the State of 
 Alabama, w-ith accom])anjang documents, be referred to the Committee on Privileges and Elections, 
 with power to send for persons and papers. 
 
 343. The Senate election case of Sykes v. Spencer, continued. 
 
 A legislative body recognized by the State executive and having an 
 elected but not certified quorum, was once preferred to a rival body hav- 
 ing a certified but not elected quorum. 
 
 On April 20' Mr. Matt. H. Carpenter, of Wisconsm, submitted the report of 
 the Committee of Privileges and Elections.^ The report began with a statement 
 of the history of the case: 
 
 Mr. Sykes claims the seat now held by Hon . George E. Spencer as Senator from the State of Ala- 
 bama; and his claim is based upon the assertion that the body claiming to be the legislature of the 
 State of Alabama which elected the said Spencer was not the rightful legislature of that State, but that 
 another body of men was such legislature; and that the latter body, on the 10th day of December, A. D. 
 1872, duly elected the said Sykes to be the Senator of the United States for that State for the term of 
 six years commencing on the 4th day of March, A. D. 1873. 
 
 It is a fact that for some time after the day fixed by law for the organization of the legislature of 
 that State, in 1872, there were two bodies, each claiming to be the legislature of that State — one known 
 as the statehouse legislature, which pretended to elect Mr. Sykes, and the other known as the court- 
 house legislature, which pretended to elect Mr. Spencer; and the question is, which of these two bodies 
 ought to bo considered the rightful legislature at that time? On the 3d day of December, 1872, the 
 court-house legislature, so called, pretended to elect Mr. Spencer. The governor of the State certified 
 that Mr. Spencer had been duly elected on that day by the legislature of the State; and the Senate, 
 upon that certificate, seated Mr. Spencer as a Senator for the term in question. The first question is, 
 therefore, whether the body of men which protended to elect Mr. Spencer can properly be regarded as 
 the legislature of the State at the time of such pretended election. If so, Mr. Spencer's election was 
 valid, and, of course, if that be so, Mr. Sykes can have no right to the same seat during the same term. 
 
 After further reviewing the law of vUabama and the details of the case, the 
 report continues: 
 
 The contest between these two legislatures depends upon this: In the statehouse legislature were 
 eight or nine members who had received regular certificates of election, but who are conceded not to 
 have been elected. There were of this class a sufficient number, together with unquestioned members, 
 to make a quorum in both houses of the statehouse legislature. In the court-house legislature persons 
 claiming the seats of this class of members of the statehouse legislature assembled with others who 
 were undoubtedly members-elect to the senate and house of representatives, and thereby constituted 
 in numbers a quorum of the two houses at the court-hous?. And the question is, whether at the time 
 the election of Spencer took place by the court-house legislature that legislature, composed of a quo- 
 rum of the persons actually elected, should be regarded as the legislature of the State; or whether the 
 statehouse legislature, a quorum in both houses being made by this class of persons who in fact were 
 not elected but had the regular certificates of election, should be regarded as the legal legislature. 
 And this again depends upon another question: ^Vhether for the time being, and until some decision by 
 
 ' First session Forty-third Congress, Record, p. 79. 
 
 = Record, p. 318G; Senate Report No. 291. 
 
 ' This committee consisted of Messrs. Oliver P. Morton, of Indiana; Matt. H. Carpenter; John A. 
 Logan, of Illinois; J. L. Alcorn, of Mississippi; Henry B. Anthony, of Rhode Island; John H. 
 Mitchell, of Oregon; Bainbridge Wadleigh, of New Hampshire; Wm. T. Hamilton, of Maryland, and Eli 
 Saulsbury, of Delaware.
 
 § 343 ELECTOKATES INCAPACITATED GENERALLY. 237 
 
 the two houses could he arrived at, the eight or nine i)ersons holding certificates without the election 
 or the eight or nine persons elected but ha\'ing no certificates are to be considered as entitled to 
 act and form part of the legislature of the State. 
 
 The report then quotes the law as to contesting elections, and concludes: 
 
 It is not pretended that the persons who were elected, but had not received certificates of election, 
 took the steps required by this statute to contest the seats of the persons who held the certificates, Viut 
 had not been elected. It is claimed, and with great force, that, until a contest, in the manner provided 
 by law, the members who had received the certificates of election, although those certificates had been 
 erroneously delivered and they were not in fact elected, were entitled to sit as members of the legislature. 
 It is undoubtedly true that had all the persons claiming to be members of the legislature met in the 
 statehouse, and the two houses had proceeded there to organize, the persons holding the certificates, 
 without the election, would have been entitled to their seats until the persons who had been elected, but 
 had received no certificates, should make contests for their seats and their claim should be determined 
 by the houses themselves. 
 
 The matter, then, comes to this: The statehouse legislature was the legislature in form, and the 
 court-house legislature was the legislature in fact. While these two pretended legislatures were in 
 existence, each claiming to possess the legislative power of the State, Spencer was ek'cted to the Senate 
 by the court-house legislature, and Sykes was elected l)y the statehouse legislature. Spencer was first 
 elected, and on the day of his election the court-house legislature was recognized by the governor as the 
 l^al legislature of the State. Therefore, in determining as to the right of Spencer or Sykes to this seat, 
 the Senate is compelled to choose between the body in fact elected, organized, acting, and recognized 
 by the executive department as the legislature, and another body, organized in form, but without the 
 election and without a recognition on the part of the executive of the State at the time they pretended 
 to elect Sykes. \Mien we consider that all the forms prescribed by law for canvassing and certif\dng an 
 election, and for the organization of the two liouses, are designed to secure to the persons actually elected 
 the right to act in the offices to which in fact they have been elected, it would l;e sacrificing the end to 
 the means were the Senate to adhere to the mere form, and thus defeat the end which the forms were 
 intended to secure. 
 
 The persons in the two bodies claiming to be the senate and house of representatives who voted for 
 Spencer constituted a quorum of both houses of the members actually elected; the persons in the state- 
 house legislature who voted for Sykes did not constitute a quorum of the two houses duly elected, Ijut 
 a quorum of persons certified to have been elected to the two houses. Were the Senate to hold Sykes's 
 election to be valid, it would follow that erroneous certificates, delivered to men conceded not to 'be 
 elected, had enabled persons who in fact ought not to vote for a Senator to elect a Senator to misrepresent 
 the State for six years. On the other hand, if we treat the court-house legislature as the legal legislature 
 of the State, it is conceded that we give effect to the will of the people as evidenced by the election. So 
 that, to state the proposition in other words, we are called upon to choose between the form and the sub- 
 stance, the fiction and the fact; and, considering the importance of the election of a Senator, in the 
 opinion of your committee the Senate would not be justified in overriding the will of the people, as 
 expressed at the ballot box, out of deference to certificates issued erroneously to persons who were not 
 elected. 
 
 In the opinion of your committee it is not competent for the Senate to inquire as to the right of 
 individual members to sit in a legislature which is conceded to have a quorum in both houses of legally 
 elected members. But undoubtedly the Senate must always inquire whether the body which pretended 
 to elect a Senator was the legislature of the State or not; because a Senator can only be elected liy the 
 legislature of a State. In this case, Spencer having been seated by the Senate, and being prima facie 
 entitled to hold the seat, the Senate can not oust him without going into an inquiry in regard to the right 
 of the individual persons who claim to constitute the quorum in these respective bodies at the court- 
 house and at the statehouse. We can not oust Spencer from his seat without inquiring and determining 
 that the eight or nine individuals who were elected were not entitled to sit in the legislature of the State 
 because they lacked the certificates. But if the Senate can inquire into this question at all, it must 
 certainly inquire for the fact rather than the e\-idence of the fact. It can not be maintained that when 
 the Senate has been compelled to enter upon such an examination it is estopped by mere prima facie 
 evidence of the fact, and the certificate is conceded to be nothing more than prima facie e\'idence. But
 
 238 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES, § 344 
 
 the Senate must go back of that to the fact itself, and determine whether the persons chiiming to hold 
 seats were in fact elected. When we do thLs we come to the conceded fact that these persona lacking the 
 certificate had in fact been elected, and that the persons who claimed to be the quorum of the two houses 
 were in fact the persons who, in virtue of the election, were entitled to constitute the quorum of both 
 houses. 
 
 So that, in any view of the matter which your committee can take, we are of opinion that Mr. Sykes 
 makes no case entitling him to the seat now occupied by Mr. Spencer, and your committee ask to be 
 discharged from the further consideration of the memorial of Mr. Sykes. 
 
 The minority views were subscribed by Messrs. Saulsbury and Hamilton, took 
 issue with the majority, and argued elaborately that the statehouse legislature was 
 the real legislature, and that it alone might decide as to the elections of its own 
 members. 
 
 The report was debated at length on May 27 and 28,' and at the conclusion of 
 the debate the question recurred on the resolution of the committee : 
 
 Resolved, That the Committee on Privileges and Elections be discharged from the further consid- 
 eration of the memorial of Francis W. Sykes. 
 
 On motion by Mr. Hamilton, of Maryland, to amend the resolution by striking 
 out all after the word " resolved" and in lieu thereof inserting — 
 
 That the Hon. George E. Spencer, not having been elected a Senator from the State of Alabama 
 by the lawful legislature of that State, is not entitled to a seat in this body. 
 
 After debate, it was determined in the negative — yeas 11, nays 3.3. 
 On motion by Mr. Hamilton, of Maryland, to amend the resolution by striking 
 out all after "resolved" and in lieu thereof inserting — 
 
 That Francis W. Sykes, having been duly and legally elected a Senator from the State of Alabama 
 for the constitutional term commencing March 4, 1873, is entitled to the seat in this body now held 
 by the Hon. George E. Spencer. 
 
 It was determined in the negative. 
 
 The question recurring on the resolution reported by the Committee on Privi- 
 leges and Elections, viz: 
 
 Resolved, That the Committee on Privileges and Elections be discharged from the further consid- 
 eration of the memorial of Francis \V. Sykes. 
 
 On the question to agree thereto, it was determined in the affirmative. 
 
 344. The Senate election case of Sykes v. Spencer, continued. 
 
 Decision of a committee, acquiesced in by the Senate, that an election 
 case once definitely settled might not be reopened. 
 
 On Thursday, December 16, 1875,^ Mr. Spencer, rising to a question of privi- 
 lege, referred to certain charges made in the legislature of Alabama, and proposed 
 a resolution for an investigation of the subject so far as he was concerned personally. 
 But on suggestion from Mr. Saulsbury, he modified it by broadening its scope, and 
 in that form it was agreed to as follows: 
 
 Resolved, That the Committee on Privileges and Elections are hereby instructed to investigate into 
 and inquire whether in the election of George E. Spencer as a Senator in Congress from the State of 
 Alabama there were used, or caused to be used and employed, corrupt means or corrupt practices to secure 
 
 ' Record, pp. 4287, 4325-4330; Appendix, p. 323. 
 
 ^ First session Forty-fourth Congress, Record, pp. 232, 233.
 
 § 344 ELECTORATES INCAPACITATED GENERALLY. 239 
 
 his election to the seat he now holds; and that said committee be empowered to administer oaths, to 
 send for persons and papers, to take testimony, to employ stenographers and such clerical assistance 
 as they may deem necessarj-, and to sit during the recess of Congress, if considered advisable, and to 
 report the result of their investigations as soon as practicable. 
 
 Later, especially on January 24 ,1876,' Air. Goldthwaite presented the report of a 
 joint committee of the general assembly of Alabama with evidence thereto relating 
 to ilr. Spencer's election, and a memorial of the general assembly praying that the 
 seat held by Mr. Spencer might be declared vacant. 
 
 On May 20," ilr. Morton, from the Committee on Privileges and Elections, 
 submitted a report as follows: 
 
 This testimony was ex parte in its character, verj' much of it hearsay, and could not be received 
 by the committee as e\-idence. 
 
 The question whether Mr. Spencer was elected by the lawful legislature of Alabama, raised in the 
 memorial referred to, and in the specifications filed before the committee by the counsel, Mr. Morgan, 
 who represented the State of Alabama, was considered by a majority of the committee to have been 
 fully settled in the contest for the seat occupied by Mr. Spencer, before made, in the Senate by Mr. 
 Sykes. 
 
 The question in that contest was whether what was known as the court-house legislature, by which 
 Mr. Spencer was elected, or the capitol legislatitfe, by which Mr. Sykes was elected, was the lawful 
 legislature of Alabama. After full consideration and argument of counsel, it was determined by the 
 committee and afterwards by the Senate that the court-house legislature was the lawful one, and that 
 Mr. Spencer and not Mr. Sykes was entitled to the seat. 
 
 The question having been definitely settled, it was considered by the committee that it was not 
 competent for the committee or the Senate to reopen it, and that it must be treated as res adjudicata. 
 
 Upon the other branch of the inquiry, as to whether Mr. Spencer, or his friends, had been guilty 
 of briberj', corruption, or ether unlawful practices in procuring his election, the committee made faithful 
 and diligent inquin.-. Mr. Morgan, counsel for the accusers, subpoenaed and examined many witnesses, 
 and, after the testimony was over, supported the charge against Mr. Spencer by a lengthy argument. 
 
 Those charges were not proven in any respect. No witness testified that Mr. Spencer had given, 
 directly or indirectly, or offered to give money, or anj-thing of value, in consideration of votes or sup- 
 port, in the Alabama legislature: nor was it shown that any of his friends had done so. Some hearsay 
 testimony was offered to the effect that certain persons had said that they had received money in con- 
 sideration for voting for Mr. Spencer for the Senate; but this testimony was ruled out by the committee. 
 The persons alleged to have made these statements were competent witnesses, but were not produced, 
 nor was it proven that any money had been paid to them for such a purpose by anybody, whether a 
 known friend of Mr. Spencer or not. 
 
 The counsel for the accusers complain strongly of the rejettionof such testimony; but its illegality 
 and worthless character were too plain to require argument, and had it been admitted it might have 
 contributed to make some scandal, but would have proved nothing. Attempts were made to offer the 
 hearsay statements against Mr. Spencer of persons who were not shown to have been engaged with him 
 in any conspiracy to procure his election by corruption or undue means, and by whose statements made 
 in his absence he could not be bound by any known principle of law, which were also rejected by the 
 committee. 
 
 While hearsay evidence was thus excluded, the door was thrown open widely to prove the pay- 
 ment of money by any person to any member of the legislature, or to be used with the legislature, to 
 procure Mr. Spencer's election, by any person, whether such person was shown to be a friend of Mr. 
 Spencer or not. 
 
 The committee deem it unnecessan,' to go into the full details of the case, and ha\'ing thus given 
 the general result, beg leave to be discharged from the further consideration of the resolution and 
 memorial, and herewith submit copies of the testimony taken before the committee. 
 
 'Record, p. -571. 
 
 2 Record, p. 3227; Senate report No. 331.
 
 240 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 345 
 
 Mr. Saulsbury did not concur in all portions of the report, holding that the 
 evidence relating to the invalidity of Mr. Spencer's election should have been pre- 
 sented, the case not being res adjudicata to the extent of preventing this. 
 
 345. The Senate election case of Ray and McMillen, of Louisiana, in 
 the Forty-second Congress. 
 
 There being rival claimants bearing credentials from rival executives 
 and chosen by rival legislatures, the Senate did not give prima facie 
 effect to either credentials. 
 
 On January 22, 1873, * in the Senate, Mr. J. R. West, of Louisiana, presented the 
 credentials of William L. McMillen, elected to the Senate to fill the unexpired term 
 of William P. Kellogg. 
 
 State of Louisiana. 
 
 The following resolution was adopted by the senate and house of representatives of the State of Louis- 
 iana, in joint session, on Wednesday, the loth day of January, 1873: 
 
 Whereas it appears by the journals of each house of the general assembly of the State of Louisiana 
 that Hon. W. L. McMillen was, on the 14th day of January, 1873, elected United States Senator to fill the 
 unexpired term of Hon. W. P. Kellogg: 
 
 Be it resolved by the senate and house in joint session, That the said election of Hon. W. L. McMillen be 
 testified in accordance with the law. 
 
 D. B. Penn, 
 Lieutenant-Governor and President of the Senate. 
 
 J. C. MONCURE, 
 
 Speaker House of Representatives. 
 
 We certify the above to be a true copy of the minutes of the senate and house of representatives, 
 adopted in joint session, January 15, 1873. 
 
 George B. Shephard, 
 Clerk of the House of Representatives. 
 E. A. Burke, 
 
 Secretary of the Senate. 
 
 State of Louisiana, 
 
 Executive Office, 
 New Orleans, Januaiy 15, 1S73. 
 I, John McEnery, governor of the State of Louisiana, do hereby certify that Davidson B. Penn, 
 lieutenant-governor and president of the senate; J. C. Moncure, speaker of the house of representatives; 
 E. A. Burke, secretary of the senate, and Geo. B. Shephard, chief clerk of the house of representatives, are 
 the officers herein designated and described, and the foregoing signatures are genuine and entitled to 
 credence as officers aforesaid. 
 
 Given under my hand and seal of the State, this 15th day of Januarj- A. D. 1S73, and of the inde- 
 pendence of the United States the ninety-seventh. 
 
 [l. 8.] John McEnery. 
 
 By the governor: 
 Y. A. Woodward, 
 
 Assistant Secretary of Slate. 
 
 'Third session Forty-second Congress, Globe, p. 766.
 
 I 346 ELECTORATES INCAPACITATED GENERALLY. 241 
 
 Mr. West further announced that there was a contest in the case, and he pre- 
 sented thereupon the credentials of John Ray, as follows: 
 
 State op LonsiANA, 
 
 Executive Department, 
 Xetv Orleans, January 15, 1873. 
 I, 'William Pitt Kellogg, governor of the State of Louisiana, do hereby certify that on the 15th day of 
 Januarj', in the year of our Lord, 1S73, John Ray was duly elected by the general assembly of this State 
 to represent this State in the Senate of the United States, to fill the vacancy occasioned by the resigna- 
 tion of Hon. William Pitt Kellogg. 
 
 Given under my hand and the seal of this State, this 15th day of January, A. D. 1873, and of the 
 independence of the United States the ninety-seventh. 
 
 [l. s.] WiLLi.^M Pitt Kellogg. 
 
 By the governor. 
 P. G. Desloxde, 
 
 Secretary of State. 
 
 Xo proposition was made to administer the oath to either claimant, and the 
 credentials of both were referred to the Committee on Privileges and Elections. 
 
 To this committee had also been directed, on January 16, a resolution 
 instructing it to inquire whether there was an}- State government in Louisiana, 
 and to report a bill ordering an election there for the purpose of establisliing a 
 government, Repubhcan in form. 
 
 346. The Senate election case of Ray and McMillen, continued. 
 
 Discussion of the authority of a decision of a State court over the 
 determinations of the Senate in judging of the elections of its members. 
 
 Reference to inquiry as to existence of a Republican form of govern- 
 ment in a State. 
 
 On February 20, 1873,^ Mr. Matt. H. Carpenter, of Wisconsin, presented the 
 report of the committee, Messrs. John A. Logan, of Illinois; J. L. iVlcom, of Miss- 
 issippi, and H. B. Anthony, of Rhode Island, concurring therewith. He also 
 reported a bill (S. 1621) in accordance with the instructions, and the following 
 resolutions : 
 
 Resolved, That there is no State government at present existing in the State of Louisiana. 
 Resolved, That neither John Ray nor W. L. McMillen is entitled to a seat in the Senate, neither 
 having been elected by the legislature of the State of Louisiana. 
 
 The report describes at length and in detail the political complications exist- 
 ing in Louisiana, involving the disputes of rival returning boards for control of 
 the election returns; of the election of November 4, 1872; the interposition of the 
 Federal courts and Executive; the existence of two rival legislatures and the two 
 rival executives represented by the credentials before the Senate. The questions 
 were largely as to facts; but the report discusses one feature wliich was an essen- 
 tial point of difference in the committee. It was claimed for the State govern- 
 ment, represented by Governor Kellogg, that it was recognized as legal by the State 
 supreme com-t, the highest judicial authority in Louisiana. 
 
 ' Globe, p. 1520; Senate election cases. Fifty-eighth Congress, special session. Senate Document 
 Xo. 11, p. 482. 
 
 5994— VOL 1—07 16
 
 242 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 346 
 
 The report of the committee says on this point: 
 
 The only question to be settled by this suit was whether Moi^an , the relator, or Kennard, the defend- 
 ant, was entitled to hold the office of associate justice of the supreme court in place of Howe, resigned; 
 and the idea that in disposing of this single question the court had any authority or jurisdiction to deter- 
 mine as between Warmoth and Pinchback, neither of whom was a party to the cause, which of them 
 was entitled to exercise the office of governor, and between 200 or 300 persons, the Kellogg legislature, 
 and as many more, the McEnery legislature, not one of whom was a party to the suit, which of the rival 
 bodies was authorized to exercise the legislative power of that State, is too preposterous a proposition to 
 require serious refutation. 
 
 The utmost that can lie claimed for this decision is that the court recognizes the Kellogg govern- 
 ment as a government de facto, which may be conceded without touching the question whether it has 
 been established by a regular election or set up and established by the usurpation of the individuals 
 composing it, sustained by the military forces of the United States. 
 
 The question we are considering is not a judicial question and no judicial court can determine it. 
 The question is political in its character, and, so far as the United States have to deal with it, must be 
 determined by the political department of this Government. We must therefore investigate the facts, 
 and no decision of any branch of a pretended State government can estop us in this inquiry. 
 
 The people of the State are about equally divided in sentiment in regard to these two pretended 
 governments. The people of New Orleans, which is the seat of government, support the McEnerj' gov- 
 ernment, two to one; and it is believed that if Federal support were withdrawn from the Kellogg govern- 
 ment it would be immediately supplanted by the McEnery government. The people of the State, as a 
 body, neither support nor submit to either government. Neither government can collect taxes, for the 
 people have no assurance that payment to one will prevent collection by the other government. Busi- 
 ness is interrupted and public confidence destroyed; and should Congress adjourn without making 
 provision for the case, one of two things must result; Either collision and bloodshed between the adher- 
 ents of the two governments, or the President must continue the support of Federal authority to the 
 Kellogg government. The alternative of civil war or the maintenance l)y military power of a State 
 government not elected is exceedingly embarrassing; and in the opinion of your committee the best 
 solution of this difhculty is for Congress to order a reelection, and provide for holding it under authority 
 of the United States, to the end that a government may be elected by the people, to which they will 
 submit, or which, in case of disturbance, the United States can honestly maintain. 
 
 Mr. LjTnan Trumbull, of Illinois, in individual views filed by him, said on this 
 point: 
 
 This pretended legislature, installed in power by the aid of the United States Army, in pursuance 
 of a void order of a United States district judge, proceeded to elect John Ray to represent the State of 
 Louisiana in the Senate of the United States; and it is said the Senate must receive him because the 
 supreme court of Louisiana has decided the Pinchback legislature to be the rightful legislature of the 
 State, and that the Senate is bound to follow the decision of the State court as to what constitutes its 
 legislature. 
 
 It is true, as a rule, that the Federal courts follow the decisions of the State courts in regard to the 
 construction of their own constitution and laws; but it is not true that the legislative department of the 
 Government follows the decisions of the courts upon political questions. The inquiry, what is the estab- 
 lished government in a State, belongs to the political and not the judicial power. The Senate, by the 
 Constitution, is made the sole and only judge of the election of its membei-s, who can only be chosen by 
 the legislatures of the respective States. Ordinarily the body recognized in a State as its legislature 
 would be held by the Senate to be the body authorized to elect a Senator; but when, as in the case of 
 Louisiana, there are two bodies in a State, each claiming to be its legislature, and each of which has 
 chosen a person to represent the State in the Senate, in deciding between the claimants the Senate must 
 necessarily determine which Ijody was the rightful legislature and had authority to make the election. 
 
 In view of the facts as shown to exist in Louisiana, the decisions of its courts in favor of the validity 
 of the Pinchback legislature are entitled to no respect whatever. As has been already shown, that 
 legislature was not elected nor brought into being by the people of the State, but owes its existence to 
 the void proceedings of the United States court supported by militarj' force.
 
 § 346 ELECTORATES INCAPACITATED GENERALLY. 243 
 
 Mr. Oliver P. Morton, of Indiana, in views filed by him, said: 
 
 The Constitution says that "the Senate of the United States shall be composed of two Senators from 
 each State, chosen by the legislature thereof, for six years." The manner of constituting the legislature 
 is left aljsolutely to each State, and the question of its organization must be left to be decided by such 
 tribunals or regulations as are provided by the constitution and la-ws of the State; and the only question 
 about which the Senate may inquire in determining the admission of Senators is whether they have been 
 chosen by the legislature of the State — that legislature recognized by the State or whose organization 
 has been accepted by other departments of the State government. Under our complex system of gov- 
 ernment, all questions of the organization of State governments, under their own laws, must be left to 
 the decision of the tribunals in such States created for that purpose; and when such decisions have been 
 made they must be accepted by the Government of the United States in their dealings with such States. 
 It is no answer to this to say that in a particular case such tribunals will or have decided wrongfully. 
 The Government of the United States has no right to review their decisions so long as the State possesses 
 a government republican in its form. 
 
 The doctrine that all questions of election arising exclusively under the constitution and laws of a 
 State must be left to the settlement and determination of the proper tribunals created by the State for 
 the adjustment of such matters was distinctly recognized by the Supreme Court of the United States 
 in the celebrated case of Luther v. Borden, growing out of the attempt in the State of Rhode Island to 
 overturn the old charter government and establish a new one in its stead. In that case the Supreme 
 Court said: 
 
 "The point, then, raised here has been already decided by the courts of Rhode Island. The ques- 
 tion relates altogether to the constitution and laws of the State; and the well-settled rule in this court is 
 that the coiu-ts of the United States adopt and follow the decisions of the State courts in questions which 
 concern merely the constitution and laws of a State. Upon what ground could the circuit court of the 
 United States, which tried this case, have departed from this rule and disregarded and overruled the 
 decision of the courts of Rhode Island? Undoubtedly the courts of the United States have certain 
 powers under the Constitution and laws of the United States which do not belong to the State courts. 
 But the power of determining that a State government has been lawfully established, which the courts 
 of the State disown and repudiate, is not one of them. Upon such a question the courts of the United 
 States are bound to follow the decisions of the State tribunals." 
 
 But the reason for the rule in Luther v. Borden is much stronger in this case than in that. In that 
 case there was an attempt to set up a new constitution over the old charter, under which it was claimed 
 that a new government had been organized throughout, involving a new supreme court, as well as leg- 
 blature and State officers. But in Louisiana there is but one constitution and but one supreme court, 
 which is recognized by all parties, and no attempt made to set up another in its stead, and the only 
 question is as to who were elected State officers and members of the legislature under the recognized 
 constitution and laws of the State, of which the supreme court must necessarily be the final arbiter. 
 
 There is no impeachment of the supreme court of Louisiana presented to the committee or to the 
 country. All its members but one were placed upon the bench in 1868, before the present troubles 
 arose, and hold their office for four years longer; and although imputations have been cast upon its 
 action, I know of no foundation for them, and it is not legitimate for Congress to make an inquiry into 
 its motives. The power and duty conferred upon the United States by the fourth article to guarantee 
 to every .State in the L'nion a republican form of government is political in its character and not sub- 
 ject to revision by the judiciarj'; but when, upon inquiry, it is ascertained that a State has an existing 
 government in active operation, which is not obstructed by violence, in which each department is 
 mutually recognized by the other, and which is republican in its form, there is no foundation for the 
 interference of Congress, and no condition to which its power can attach; and although its officers may 
 have been elected by fraud or installed without election, yet all questions in relation to them must 
 necessarily arise under the constitution and laws of the State, and, under the decision in Luther v. 
 Borden, be referred for determination to the tribunal of the State. 
 
 The bill reported by the committee was debated at great Jfeiigth mi February 
 27, 1873,' and the bill was rejected, yeas 18, nays 20. 
 
 ' GIol)e, pp. 1850-1896. 
 
 ^
 
 244 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 347 
 
 The resolutions reported by the committee were not acted on, and the time 
 for which the claimants to the seat had been chosen expired without action on their 
 claims and without either of them taking the seat. 
 
 347. The Senate election case of Pinchback, McMillen, Marr, and 
 Eustis from Louisiana, in the Forty-third, Forty-fourth, and Forty-fifth 
 Congresses. 
 
 There being conflicting credentials from rival claimants to the oflBce 
 of governor, the Senate referred the papers before considering the ques- 
 tion of swearing in either claimant to the seat. 
 
 Instance wherein a committee, being equally divided, reported to 
 the Senate its inability to present a proposition for action. 
 
 The Senate tabled a motion to receive a telegram relating to creden- 
 tials of a claimant to a seat. 
 
 On January 21, 1873,' in the Senate, Mr. J. R. West, of Louisiana, presented 
 credentials of P. B. S. Pinchback as Senator from Louisiana for the term com- 
 mencing March 4, 1873. These credentials were laid on the table. 
 
 On March 3, 1873,^ the Vice-President laid before the Senate a telegraphic 
 dispatch from John McEnery, "governor of Louisiana," as follows: 
 
 I have the honor to inform you that Hon. William L. McMillen was, on the 28th instant, duly elected 
 Senator in the Congress of the United States by the legislature of the State of Louisiana for the term 
 commencing March 4, 1873. His credentials were mailed to him yesterday. 
 
 Mr. West having objected to the reception of the telegram, a debate arose as 
 to its nature. It was pointed out that the credentials were often presented in the 
 Senate in advance, but there was no validity in them until the time arrived for the 
 person to whom they related to claim the seat. The credentials themselves from 
 Louisiana raised no question at this time, and the dispatch was simply a, notification 
 as to them. 
 
 The question being put on the reception of the telegram, the question of recep- 
 tion was laid on the table. 
 
 On the same day ^ Mr. Carl Schurz, of Missouri, presented a memorial from 
 W. L. McMillen, respectfully asking the Senate to take notice of the fact of liis 
 election. This memorial was laid on the table. 
 
 On March 7, 1873,^ at the special session of the Senate, Mr. West presented 
 the credentials of W. L. McMillen, which were laid on the table. 
 
 On December 4, 1873,'^ on motion of Mr. Oliver P. Morton, of Indiana, these 
 credentials were referred to the Committee on Privileges and Elections, no propo- 
 sition being made to administer the oath to either claimant. 
 
 On December 15,° Mr. Morton, from the Committee on Privileges and Elec- 
 
 ' Third session Forty-second Congress; Globe, p. 728. 
 
 2 Globe, p. 2147. 
 
 'Globe, p. 2165. 
 
 ■* Special session of Senate, Forty-third Congress; Record, p. 29. 
 
 * First session Forty-third Congress; Record, p. 57. 
 
 6 Record, pp. 188-191.
 
 § 348 ELECTORATES INCAPACITATED GENERALLY. 245 
 
 tions, to whom were referred the credentials of P. B. S. Pinchback and W. L. Mc- 
 3klillen, claiming seats in the Senate as Senators from Louisiana, reported that the 
 committee were evenly diArided upon the question as to whether ^Ir. Pinchback was, 
 upon his credentials, entitled to be sworn in as a member, and asked to be dis- 
 charged from further consideration of the subject, and to refer the whole matter 
 to the determination of the Senate. 
 
 Mr. ilorton submitted the following resolution for consideration; which was 
 ordered to be printed: 
 
 Resolved, That the credentials of P. B. S. Pinchback for a seat in the Senate of the United States 
 for six years, commencing on the 4th of March, 1873, being in regular form, he is entitled under the 
 law, and Ln conformity with the usages of the Senate, to be sworn in as a member; and that whatever 
 grounds of contest there may be as to his right to a seat should be made thereafter. 
 
 Mr. Morton submitted the above resolution individually as a Senator, the com- 
 mittee ha^ong authorized no proposition. 
 
 348. The Senate election case of Pinchback and others, continued. 
 
 In an election case the Senate considered so far as applicable testi- 
 mony taken by its committee in a former Congress, in a matter to which 
 neither contestant was a party. 
 
 Discussion in the Senate as to whether or not the competency of the 
 electing- body is a question of determining importance in considering the 
 prima facie effect of credentials. 
 
 The credentials of Mr. Pinchback were issued by WilUam Pitt Kellogg, as gov- 
 ernor, and those of Mr. McMillen by John McEnery, as governor. It appeared 
 from the debate that Mr. Pinchback's election took place on the same day and by 
 the same legislature that had elected Jolm Ray, whose claim to a seat for an unex- 
 pired portion of a term as Senator had not reached a decision in the preceding 
 Congress.' 
 
 At the outset of the discussion, on December 15,^ Mr. Orris S. Ferry, of Con- 
 necticut, moved to take from the files of the Senate for consideration in connection 
 ■with this case the reports and evidence taken in the last Congress in the Louisiana 
 case by the Committee on Privileges and Elections. 
 
 At once there arose objection to this course, it being pointed out by Mr. Roscoe 
 ConklLng, of New York, that the document in question recorded the result of an 
 investigation in another case. 
 
 Speaking, on December 16,^ Mr. Oliver P. Morton, of Indiana, said: 
 
 This question has never been before the committee, nor has it ever been before the Senate; and so 
 far as that volume of testimony is concerned, while I have no sort of objection to anybody referring to 
 it for any purpose, it is no part of the res gesta;. It is not a part of this case. It was taken before a dif- 
 ferent committee. The committee has been twice reorganized since that time. It was taken at a 
 former session of Congress in a proceeding to which Mr. Pinchback was not a party and for which he 
 is nowise responsible; and while it is here for reference, as every document in the document room is, 
 :ajid every book in the Library is, it is no part of this case. 
 
 ' See section 345 of this work. = Record, pp. 189, 191. ' Record, p. 222.
 
 246 PKECEDENTS OF THE HOUSE OF REPBESENTATIVES. § 348 
 
 Replying on January 30/ Mr. Matt. H. Carpenter, of Wisconsin, said on tliis 
 point, speaking as to Mr. Pinchback's status: 
 
 His prima facie case is overturned. The presumption that might spring from reading these papers 
 is rebutted by the full proof of the fact tliat a committee of this body unanimously, except one of its 
 members, has reported to you, and that report lies upon your table to-day, or in your document rooms, 
 that there was no State legislature and there was no State government in Louisiana on the loth day 
 of January last, when it is pretended Pinchback was elected. Again, the Senator says this testimony 
 was not taken in Mr. Pinchback's case; it was taken in Mr. Ray's case, and therefore Mr. Pinchback 
 is not to be affected by it. Why, sir, in a judicial court, for reasons that pertain to such tribunals alone, 
 the testimony taken in a case between Smith and Jones can not be used in a case between Brown and 
 Gray, for the reason that each is entitled to cross-examine witnesses whose testimony is to affect him. 
 
 At this point Mr. Morton interposed to say that the resohition instructing the 
 committee to inquire whether there was any State government in Louisiana was 
 offered on the 16th of January, 1873, and the credentials were not presented to the 
 Senate until some time afterwards. That investigation was already ordered before 
 the credentials were presented to the Senate.^ 
 
 To this Mr. Carpenter replied : 
 
 If the investigation had no reference to Mr. Ray's case; if it was an independent proceeding ordered 
 by the Senate to ascertain an important fact upon which we might be called to legislate, then it binds 
 all the world; all mankind were parties to that investigation. * * * It was not a proceeding in Ray's 
 case, and Mr. Pinchback was as much a party to the proceeding as any other citizen of the United States.' 
 
 Mr. Carpenter then proceeded to read from Lewis's Reasonings and Methods 
 in Politics to show that the process of ascertaining facts for legislative purposes 
 was not so formal or subject to such strict rules of evidence as in judicial depart- 
 ments. 
 
 So I say [he continued] that the information which is furnished to the Senate by the report and 
 testimony of this committee not only comes within the niles of evidence upon which legislative bodies 
 must act, but that it was obtained in a proceeding instituted by its own authority, conducted by its 
 own members, exercising its own powers to send for persons and papers, and conducted, too, under 
 the supervision of the Senator from Indiana himself; and I say that it is before us, as evidence in this 
 case, and in all cases, and for all purposes. The Senator says it is before us like any other volume in 
 the document room, or any book in the library. I am willing to accept that expression, because every 
 book in the library which gives us a fact of history applicable to this case, every law book which dis- 
 cusses the questions involved in this case, and every document in any room of this Capitol which fur- 
 nishes information bearing upon this subject is legitimately and properly before us this morning. 
 
 Thereafter during the debate the report in question was referred to and quoted 
 from freely.^ 
 
 > Record, p. 1037. 
 
 ^The record of the case of P»,ay and McMillen in the Forty-second Congress shows that this state- 
 ment is accurate; but the credentials were referred to the committee in season to be taken into con- 
 sideration in its report. 
 
 ^This is not wholly accurate. On January IG, 1873, the committee were directed to require and 
 report as to the existence of a legal State government. On January 22, the credentials of Ray and 
 McMillen were presented and referred to the committee. On February 20 the committee reported both 
 as to the existence of a legal State government and as to the rights of Ray and McMillen. 
 
 * On March 3, 1876, while this question was still pending, Mr. George F. Edmunds, of Vermont, took 
 the same view as Mr. Carpenter took. First session Forty-fourth Congress, Record, p. 1437.
 
 § 349 ELECTOKATES INCAPACITATED GENERALLY. 247 
 
 Proceeding to the merits of the case, Mr. Morton asserted ' the proposition that 
 if Wilham Pitt Kellogg, who as governor issued the credentials of Mr. Pinchback, 
 was the lawful governor, then Mr. Pinchback was entitled to take the seat \\athout 
 delay, and any contest to be made must be made thereafter. While he would dis- 
 cuss in this connection the status of the legislature, he did not consider it necessarily 
 involved in the argument. He referred in support of this view to the precedents in 
 the cases of Senator Goldthwaite, of Alabama, and of Potter v. Robbins, from Rhode 
 Island.' 
 
 Mr. Carpenter did not admit that these precedents sustained Mr. Morton's 
 argument,^ and said: 
 
 When a gentleman comes to this body with credentials in due form, showing that he has been elected 
 by a body authorized to elect a Senator, then he has a prima facie case. The case then before the 
 Senate (Goldthwaite case), * * * -vras such a case. There was a question made here as to individ- 
 uals sitting in the legislature of Alabama, but there was no question that the body itself was the legisla- 
 ture of the State; and the better opinion is that the Senate has no authority to inquire into the right of 
 individual members of a State legislature to sit therein, tliat being a question to be settled by the legisla- 
 ture, if there be a legislature to settle it; but the Senate has authority to inquire whether the body which 
 has pretended to elect a Senator was the legislature of the State. The legislature alone can elect a Senator, 
 and therefore to make a prima facie case it must be shown that the legislature has made an election. 
 
 Mr. Morton called attention to the fact that a certificate by the governor was a 
 proper form of making known the election by the legislature, to which Mr. Carpenter 
 replied : 
 
 A prima facie case is that which appears before an examination of the merits; but when there 
 has been a full investigation and trial, and it is ascertained that what appeared prima facie to be the 
 case is not the true case then the prima facie case is gone. In Robbins's case there had been no 
 investigation, and therefore the Senate properly acted upon the prima facie case. But here a full 
 investigation had been liiade before Pinchback presented his prima facie case. Whenever the Senate 
 acts, it must act upon all the facts before it; and, in this instance, we have not only the prima facie 
 case made by the credentials, but also the full investigation showing that Pinchback's prima facie 
 case is false. 
 
 349. The Senate election case of Pincliback and others, continued. 
 
 Reference to principles governing recognition of a State government 
 by the President of the United States. 
 
 The discussion, from the above points of departure, naturally divides itself 
 into two main branches: 
 
 (1) Was Governor Kellogg the governor of the State of Louisiana when the 
 credentials were issued? 
 
 Mr. Morton contended * that he was. He had been in complete possession of 
 the office for nearly twelve months, acting as governor in every respect; he had 
 been recognized as such by the other State officers, by the legislature in various 
 ways, by the State comets from the lowest to the highest; he had been recognized 
 by the United States House of Representatives, which had seated a Member-elect 
 bearing credentials signed by him; and, finall}', he had been recognized by the 
 
 ' Record, p. 224. = Record, p. 222. ^ Record, pp. 1037. 1038. * Record, p. 223.
 
 248 PRECEDENTS OF THE HOUSE OF KEPRESENTATIVES. § 349 
 
 President of the United States. On this hist point Mr. Morton quoted at length 
 the decision of the United States Supreme Court in the Rhode Island case arising 
 out of the so-called "Dorr rebellion," the case of Luther v. Borden (7 Howard). 
 
 Mr. Carpenter dissented' from this claim that Kellogg was the lawful governor. 
 As to the point that he had held the office for a period of time and was still holding 
 it, it was sufficient to say that he was holding it not by the voluntary consent and 
 assent of the people of Louisiana; but by reason of support from the strong ann of 
 the military power of the Federal Government. Under such circumstances the 
 duration of his power was not material. If it was not rightful in the beginning, it 
 was not rightful now. As to its recognition by the President and by the courts of 
 Louisiana, Mr. Carpenter denied the effectiveness of both these arguments. 
 
 (a) As to the force of the decisions of the State courts in limiting the inquiry 
 of the Senate, Mr. Morton contended ^ that it was obligatory to accept the decisions 
 of State tribunals on all questions arising upon State laws. He quoted the cases of 
 Luther V. Borden, and also Webster v. Cooper (14 Howard). Mr. Morton con- 
 tended that the Senate, in accordance with this principle, should take a legislature 
 as the State gave it. But it was objected in this connection, notably by Messrs. 
 Eli Saulsbury, of Delaware, and John P. Stockton, of New Jersey, that the question 
 of the existence of a legislature was directly before the Senate, and that it alone 
 was the judge. 
 
 Mr. Carpenter discussed ^ more fully the effect of the decisions of the Louisiana 
 court, taking the ground that the courts had acted in cases not properly within 
 their jurisdiction, and that their decisions were conflicting and therefore not within 
 the rule making them the highest evidence of what the local law was. He cited on 
 this point the cases of the Ohio Life and Trust Company v. De Bolt (1 6 Howard, 432) , 
 Gelpecke tJ. Dubuque (1 Wallace, 17.5), and Havemeyer v. Iowa County (3 Wallace, 
 294) . Mr. Thomas C. McCreery, of Kentucky, also argued in the same line.* 
 
 (&.) As to the alleged recognition of the Kellogg government bj' the President, 
 the facts and law were discussed at length^ on December 16 and January 26 and 
 30, and February 2. 
 
 (2) As to the question of the legality of the legislature there was elaborate 
 discussion and exploration of fact, the report already discussed being the basis of 
 consideration, it being contended on the one side that the legislature was the legal 
 body, and on the other that it was not. 
 
 On January 26 " Mr. Morton modified his resolution to read as follows: 
 
 Resolved, That the credentials of the Hon. P. B. S. Pinchback be referred to the Committee on 
 Privileges and Elections; that the committee have power to send for persons and papers, and ba instruct- 
 ed to inquire into the conduct of said Pinchback in connection with said election. 
 
 In making this change Mr. Morton announced that he had learned that there 
 were charges of improper conduct made against Mr. Pinchback in connection with 
 
 ' Record, p. 1053. < Record, p. 916. 
 
 ^Record, pp. 225, 226. 'Record, pp. 223, 1050, 1109; Appendix, p. 41. 
 
 ''Record, p. 1054. « Record, p. 915.
 
 § 350 ELECTOBATES INCAPACITATED GENEBALLY. 249 
 
 the election, and this was the reason for the modification. Mr. Carpenter com- 
 mented ' on this as a virtual abandonment of the prima facie claim, but Mr. Morton 
 declined to admit that this was the significance of his action. 
 
 On January 27- the credentials of ilr. McMUlen were recommitted to the Com- 
 mittee on Privileges and Elections. 
 
 But it does not appear that any action was taken at this session on the modified 
 resolution presented b}" Mr. Morton.^ 
 
 350. The Senate election case of Pinchback and otliers, continued. 
 
 Discussion of the form of credentials and the competency of the elect- 
 ing and certifying authorities behind them as elements in their eflB.cacy, 
 
 Discussion of the status of a governor de facto as distinguished from 
 an usurper. 
 
 On December 16, 1874,* the Vice-President laid before the Senate a letter of 
 W. L. McMillen requesting the speedy action of the Senate upon his credentials as 
 Senator elect from the State of Louisiana; which was referred to the Committee on 
 Privileges and Elections. 
 
 On December 23 ' Mr. Morton submitted the following resolution for considera- 
 tion; which was ordered to be printed: 
 
 Resolved, That the Senate recognize the validity of the credentials of P. B. S. Pinchback as certified 
 to by Governor William P. Kellogg, of Louisiana, under the seal of said State; and the Committee on 
 Privileges and Elections are instructed to examine and report if said Pinchback is entitled to be admitted 
 on the prima facie case thus made, or if such admission should be postponed until investigation is made 
 as to the charges of corruption in his election alleged against him. 
 
 On January 22,' 1875 Mr. West presented new credentials, in due form but in 
 somewhat different form from the preceding credentials, dated January 13, 1875, 
 and signed by '"Wm. P. Kellogg" as governor, certifying that on January 12, 1875, 
 Pinckney B. S. Pinchback had been elected to the United States Senate for the 
 term expiring March 4, 1879 — i. e., the term beginning Manh 4, 1873, as expressed 
 in the credentials issued to Mr. Pinchback by William P. Kellogg on January 15, 
 1873. 
 
 These credentials, together with the former credentials and other papers relating 
 to the case, were referred to the Committee on Privileges and Elections. 
 
 On February 8, 1875,' Mr. Morton submitted the report of the connnittee, as 
 f oUows : 
 
 That the certificate of William Pitt Kellogg, then and now the governor of the State of Louisiana, 
 which certificate is verified by the great seal of the State, shows that on the 17th day of Januarj', 1873, 
 the Hon. P. B. S. Pinchback was elected to a seat in the Senate of the L^nited States for the term of six 
 years, beginning on the 4th of March, 1873, by the legislature of Louisiana, in manner and form as pre- 
 
 1 Record, p. 1053. 
 
 = Record, p. 941. 
 
 'It was stated in debate on January 22, 1875, that no action was taken. Record, second session 
 Forty-third Congress, p. 647. 
 
 * Record, p. 94. 
 
 'Record, p. 227. 
 
 'Record, p. G47. 
 
 ' Record, p. 1063. This report was concurred in by 4 of the 7 members present at the meeting, 
 the whole membership of the committee being 9.
 
 '250 PRECEDENTS OF THE HOUSE OF KEPEESENTATIVES. § 350 
 
 scribed by the act of Congress regulating the elections of Senators of the United States. Upon this 
 certificate the committee are of opinion that Mr. Pinchback has a •prima Jane title to admission as a 
 member of the Senate, and that whatever objections may exist, if any, as to the manner of his election 
 or as to the legal character of the body by which he was elected, should be inquired into afterwards. 
 The committee, therefore, recommend the adoption of the following resolution: 
 "Resolved, That P. B. S. Pinchback be admitted as a Senator from the State of Louisiana for the 
 term of six years, beginning on the 4th of March, 1873." 
 
 In support of this report, on February 15 ' Mr. Morton cited the cases of Robbing, 
 Shields, and Goldthwaite. At a later date he also cited the case of Spencer. 
 
 Minority views ^ were filed by Messrs. William T. Hamilton, of Maryland, and 
 Eli Saulsbury^ of Delaware. The minority begin with a discussion of the force and 
 effect of the Kellogg credentials: 
 
 The power of the Senate, under section 5, article 1, of the Constitution, to "judge of the election, 
 returns, and qualifications of its own members" is absolute and unlimited. 
 
 The object in this case is to seat P. B. S. Pinchback upon this certificate alone, irrespective of his 
 election, and which in effect for the present excludes any consideration of the election itself. 
 
 It may be admitted that the general practice haa been to admit the person chosen as a Senator to 
 his seat upon credentials sufficiently authenticated either by the legislature or the governor of the State, 
 subject, of course, to any contest that might be thereafter prosecuted in respect to his right to the seat. 
 The credentials in themselves, it will be conceded, have no substantial value. It is the election, and 
 the election alone, that gives to the person chosen the right to be a Senator. 
 
 The certificate of the governor of a State directed to be given by the act of Congress approved July 
 25, 1866, upon the election of a Senator, is but the certificate of a fact upon which the official existence 
 of the person chosen depends. It gives to it no force whatever, and without it the election is just as 
 good. It is merely one of the evidences of the election in a solemn form, and to which due respect 
 should always be paid. In the act referred to there is nothing said as to what effect should be given 
 to such a certificate. It has, however, been generally regarded as sufficient in itself to presume a lawful 
 election of the person represented by it to be chosen. It is most certainly appropriate that this act did 
 not define the force of such a certificate. It prescribes a duty that the governor might or might not 
 observe. The Constitution of the United States provides for the election of Senators by the legislatures 
 of the States. This is their absolute right. Congress may regulate the time and manner of choosing 
 Senators, and the power of Congress over the subject is limited to this only. The right of choosing 
 Senators belongs to the legislatures alone, and such election is alone in all cases of inquiry to be deter- 
 mined by its records. The governor is not known in the election; no duty is imposed upon him by the 
 Constitution in respect to it, or in respect to its authentication. The legislature, to which is alone con- 
 fided the high trust of choosing Senators, can speak through its own organization, its own officers, and 
 its own acts, as its official record will show. 
 
 The right of election is sacred; the right of having this election determined by its own record is 
 equally sacred; for it might be that if other independent departments of the Government, as the execu- 
 tive, for example, possessed the right or power of authentication in the election of a Senator, you might 
 impinge upon the full enjoyment of the power of the legislature in the due choosing of Senators. This 
 absolute right to choose we hold should not and does not depend for its efficiency upon the action of the 
 executive or any other officer of the State or Federal Government. 
 
 It will be observed that the certificate such as we now have under consideration necessarily involves 
 these elements of belief before it can have the force which is now attempted to be given to it by the 
 report of the committee in this case: First, that the facts stated in regard to the election are true; and 
 second, that the person certifying as governor is in fact what he represents himself to be. The efficacy 
 Bought to be impressed upon this certificate, in at once admitting the person represented to be chosen to 
 a seat, alone depends upon the latter fact. With this in dispute the efficient power is gone. Investiga- 
 tion is at once inaugmated to settle the disputed point. Inquiry leads to inquiry, and the real life of 
 
 ' Record, p. 1277. * Senate Report No. 626.
 
 § 350 ELECTORATES INCAPACITATED GENERALLY. 251 
 
 the certificate is lost in the strife, for it can be readily seen that in a contest as to whether the certificate 
 has any validity, either by reason of the allegation that the person certifying was not in fact the governor, 
 or from any other reason, the State might be left without a Senator, when by reference to the acts of the 
 legislature the records would show a lawful election by a lawful body, and who could deny that a person 
 so chosen and with such a record could not be admitted without regarding at all the contest about the 
 certificate of the governor, or whether he was in fact governor? 
 
 We advert to this to show that a contest upon the subject of certificates at all for any legitimate 
 cause destroys their force. It was intended that by their force alone there should be immediate unob- 
 structed admission to a seat. It must be conceded, in order to give this effect to the certificate before 
 us, that William Pitt Kellogg was at the time the governor of Louisiana. If he were not the governor, 
 then it is no more than waste paper. All will admit, we presume, that this has been a subject of dispute 
 at least since the State election which took place on the 4th day of November, A. D. 1872. A constant, 
 earnest, and at times an aggressive protest has been made against Kellogg, as not only not entitled to be 
 the constitutional and rightful governor of Louisiana, but as a notorious usurper, held in the position he 
 has seized without color of right by means of the armed forces of the United States. Events occurring 
 at the time, and continually since, and some of the most painful character, prove that he does not hold 
 this place practically by any other tenure or power. Whatever else may be said of this notable promi- 
 nent fact, all are well advised that the right of Kellogg to be governor of Louisiana is in good faith denied 
 and resisted in every way possible to a peaceful resistance. 
 
 This at once, most naturally, opens up the inquiry as to the certificate itself, and no efficacy is to be 
 ascribed to it until this is satisfactorily settled, for without this it is worthless for any purpose. We 
 apprehend there is no diversity in the committee on this point. The report of the committee insists 
 that Kellogg is the governor of Louisiana, and would proceed to show it by a course of argument and a 
 system of evidence satisfactory to gentlemen uniting in that report. On the contrary, another course 
 of argument, and other evidence equally satisfactory, have brought the undersigned to a very different 
 conclusion. The broad field of inquiry and investigation is therefore opened up, for it must be manifest 
 to an unprejudiced mind that an examination into the fact whether Kellogg was the rightful governor 
 of Louisiana at the time he signed this certificate must bring us to his pretended election, and, with it, 
 to the election of the body which chose Pinchback. The whole subject relating to the affairs of this 
 State, in connection with the election held on the 4th of November, 1872, for the election of governor 
 and other State officers and members of the legislature, becomes involved in the very first branch of the 
 inquiry which it is conceded by all must be made and settled before any force can be imparted to the 
 certificate. 
 
 Before entering upon this inquiry we submit most respectfully, putting it in the mildest form, 
 whether this is not an exceptional case from the ordinary one, where it is conceded that there was a 
 rightful governor to sign certificates and where there was a legislature to elect. It must be admitted 
 that no such case was ever before presented to the consideration of the Senate. Notwithstanding it has 
 been the usual practice to admit, in the first instance, persons to a seat upon such certificates, leaving 
 the contest, if any, to be proceeded with thereafter in the usual way, yet the very first question as to the 
 official character of the person pretending to be governor impairs, as we have before said, the wonted 
 efficacy of such certificate; so that when in the examination of this primary question is involved the 
 body that chose Pinchback, and in fact the whole State government of Louisiana, would it be fair, 
 rational, and just to stop short of the substantial merits of the case when all can be settled at once? 
 
 It will be admitted, we think, that in such a controversy, opening up both the official character of 
 the governor and the legal validity of the legislature choosing the Senator, we could determine against 
 the validity of the certificate and at the same time determine the validity of the election upon the 
 record of the legislature and upon its official power of election. Suppose that such certificates should 
 be attacked for fraud, as they could be, could anyone say that such attack would involve alone the 
 fraudulent character of the certificate, and not the rightful issue — the election itself? The attack would 
 involve both, and, involving both, common reason would dictate that we should decide the substantial 
 question. While we could, in such an inquiry, set aside the certificate, we would give to the person 
 rightfully chosen his seat, and all done in the same proceeding. For if our inquiry should be alone con- 
 fined to the certificate, for whatever cause, we would be exposed to the fallacy of setting it aside and 
 then remitting the case to the governor for other or further certificate of a fact simply, when we could, 
 and it would be our duty, ascertain the fact ourselves to end the matter.
 
 '252 PRECEDENTS OF THE HOUSE OF REPEESENTATIVES. § 350 
 
 Therefore we conceive that even in a technical sense, upon a question submitted as this is, an 
 examination of the whole subject is necessary to come to right conclusions; but when we view it in its 
 broad sense, and as we have it in the light of history and events daily transpiring, many of which we 
 must or are presumed to know, as legislators and members of this body, we would consider it a gross 
 dereliction of public duty did we confine ourselves to a technical consideration of matter not substantial 
 when in it are involved questions of the greatest moment, and which in their proper solution demand 
 our earnest efforts and soundest judgment. 
 
 The facts present the broadest grounds for interposition in the broadest sense to ascertain the real 
 right and settle a question that has already given, and, until rightly settled, will give to the country 
 the greatest concern. The facts can not be denied that imperatively call for such an interposition; 
 mere parchment titles, mere certificates, sink into insignificance before the patent and undeniable facts 
 which environ this case. Never before has such a case been made, and it is to be hoped that no such 
 one will ever be made again. 
 
 A brief reference to the prominent facts will show how cntirelj- and neecessarily the whole case is 
 before us. 
 
 The views then go on to review the facts of the State election of November 4, 
 1872, in Louisiana, to discuss the rival returning boards, the fraudulent returns, 
 the rival governors and rival legislatures, and then proceed to discuss the status of 
 Kellogg as governor: 
 
 But to recur to the question. If. in the course of the investigation, from all the facts drawn from 
 all the sources to which we have referred, we conclude that the pretended governor is a mere usurper, 
 then his acts are void and avail nothing. Persons hold office or place under three different tenures — 
 first, de jure; second, de facto; and, third, as a usurper — the only three modes, we believe, known to 
 the law; and by one or the other of these tenures does the person exercise the office or place that he holds. 
 
 The first is clothed with all the powers that right, combined with possession, can give. The second 
 is only clothed with the powers possession can give, that possession being obtained under a color of right; 
 and these powers are limited to certain well-defined acts. The third ref 3rs to a person undertaking to 
 hold office without any color of right; he is a mere usurper, whose acts are void. 
 
 The distinguishing differences between officers de jure and de facto and a mere usurper are well 
 laid down in the books in the earlier days, and the same are observed to this day. In a leading case, 
 decided so far back as 1738, the general principles relating to officers de jure and de facto were well 
 defined. In this case one Goldwire, "under pretense and color of being elected mayor of Christ Church, 
 in the county of Southampton," was presented unto William Willis, steward of the court leet, and was 
 
 there sworn into the office of mayor, and, in fact, exercised the office till day of , 1736, and 
 
 that being in the exercise of said office, and under "pretense of being elected, and sworn into the same, 
 he issued a summons to the several burgesses of the corporation to meet," etc., and at such meeting he 
 nominated the defendant Lisle as one of the burgesses, and the question was whether, when he made 
 such nomination, he was mayor de facto, for it was found that he had never been elected, and, if mayor 
 de facto, whether he had the power to make the appointment. It was held by the court that Goldwire 
 was not so much as a mayor de facto; for in order to constitute a mayor de facto it is necessary that there 
 be some form or color of an election; but without this, the taking the title and regalia of the office, and 
 the acting and being sworn in as mayor are not sufficient. Now, here it appears that Goldwire was never 
 elected in fact; and though it be stated that he was sworn at the leet, it does not appear (as it ought) 
 that this was agreealjle to the constitution of the borough. And it is not material that he acted as mayor, 
 as it is found that a quo warranto was recently prosecuted against him, pending which the present elec- 
 tion was made, and that he was thereupon adjudged to be a usurper." (Andrews's Reports, Henr\' v. 
 Lisle, 173.) The distinctions then made are continued to this day, and are as clearly defined: 
 
 "An officer de facto is one who exercises the duties of an office under color of an appointment or 
 election to that office. He differs, on the one hand, from a mere usurper of an office, who undertakes to 
 act as an officer without any color of right, and on the other from an officer de jure, who is in all respects 
 legally appointed and qualified to exercise the office. These distinctions are very obvious, and have 
 always been recognized." — (17 Connecticut, Plymouth v. Painter, 588; 7 Johnson, People v. Collins,. 
 549; 2 Kent.)
 
 § 350 ELECTORATES INCAPACITATED GENERALLY. 253 
 
 It is claimed by some that though it be a question whether Kellogg be a governor de jure, yet he 
 is a governor de facto, and as such his certificate of the election of Pinchback is to be recognized as equally 
 binding upon us as if he were governor de jure. 
 
 Holding, as we do, that he is neither the governor de jure nor de facto, but a mere usiu^er, and a 
 usurper not keeping himself in position by his own unaided local power, but by the aid of armed forces 
 of a foreign power — in its true relations to this case as much a foreign power aa that of Great Britain 
 could be — we desire, briefly, to examine this phase of the subject. 
 
 Keeping in view the rulings we have cited, is Kellogg so much as a governor de facto? In disposing 
 of this we dispose of his character as governor de jure. 
 
 As we have already noticed, the constitution of Louisiana provides that the governor shall be 
 elected by the people. To be such de facto he must be in by color of an election. If he has no color 
 of an election, he is nothing but a usurper, "who is one undertaking to act without a color of right." 
 Two propositions are to be here considered in order to arrive at correct conclusions — 
 
 1. Was Kellogg elected by a majority of the votes of the people at the election held on the 4th day 
 of November, 1872? 
 
 2. If he was not, then had he such a color of an election as to constitute him governor de facto? 
 This brings us to the wider domain of fact which at every step has marked this controversy from 
 
 its inception, in 1872, to the present period. In the direct examination of the matter all the facts that 
 may tend to a correct result should be considered. We have a great variety of facts and circumstances, 
 some historical in their character, some which we are obliged to know or are assumed to know from our 
 constitutional relations to the State, her people, her goverimient, her officials, whether judicial, minis- 
 terial, executive, or political, and those which we have gathered ourselves through committees of this 
 body in the investigation had by resolution of this body passed on 16th January, 1873, and which is as 
 follows: "Resolved, That the Committee on Privileges and Elections be instructed to inquire and report 
 to the Senate whether there is any existing State government in Louisiana, and how and by whom it 
 is constituted;" and to which committee were also referred the certificates of John Ray and W. L. 
 McMillen, both claiming the seat in this body supposed to have been made vacant by the resignation of 
 William Pitt Kellogg. 
 
 This committee, composed of Messrs. Morton, Carpenter, Logan, Anthony, Trumbull, Alcorn, and 
 Hill, made a diligent and laborious investigation of aU the matters connected with both questions, and 
 made an elaborate report to the Senate, accompanied by a large amount of testimony. It is Senate 
 Report Xo. 457, Forty-second Congress, third session. From all the evidence, then, and which covers 
 and exhausts the whole subject, was Kellogg in fact elected by the people of Louisiana the governor of 
 that State? 
 
 After examining the facts the minority conclude — 
 
 Then, so far as Kellogg is concerned, there is nothing to show that he had the slightest right, either 
 by an election or the color of an election, to hold this office. He must therefore be regarded as a usurper; 
 for in no other character could he hold the place, if not in that of governor de jure or dc facto. 
 
 The principles are well and plainly defined in the case of Plymouth v. Painter, 17 Conn., already 
 quoted, in respect to the acts of persons holding place under one or the other of these modes. The 
 following is from page 593 ; 
 
 "The acts of a mere usurper of an office, without any color of title, are undoubtedly wholly void, 
 both as to individuals and the public. But where there is a color of a lawful title, the doings of an 
 officer, as it respects third persons and the public, must be respected until he is ousted on a quo warranto, 
 which is the appropriate proceeding to trj- the validity of a title to an office, and in which it would be 
 necessary for him to show a complete title in all respects; although in a suit against a person for acts 
 which he would have an authority to do only as an officer, he must, in order to make out a justification, 
 show that he is an officer de jure; because the title to the office being directly drawn in question, in a 
 suit to which he is a party, may be regularly decided. So where he sues for fees, or sets up a title to 
 property by virtue of his office, he must show himself to be an officer de jure." 
 
 It is here laid down — 
 
 First. That the acts of a usurper are void. 
 
 Secondly. That the acts of an officer in by a color of title — that is, an officer de facto, where the 
 rights of third persons or the public are concerned — are to be respected.
 
 254 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 350 
 
 Thirdly. That where he is directly concerned he must show himself to be an officer de jvire 
 whenever the direct issue is made, either as to title, or fees, or as a trespasser, or otherwise. 
 
 If Kellogg, then, be a usuqior, the certificate relied upon in this case has no value for any purpose. 
 But let us assume, for the sake of the argument, that Kellogg was governor de facto; that he was in by 
 color of an election, and by color of an election only, and not liy an election itself; with such knowledge 
 upon our part, with the known fact, besides, that his right to the place is denied and contested, that 
 there is a rival governor, in fact a rival government, we should proceed with great caution in giving such 
 efficacy to his simple certificate. True, the third section of the act of Congress of 1866, making provision 
 for the election of Senators, makes it the duty of the governor to certify the election to the President 
 of the Senate; it still stops short of prescribing the force of such a certificate. No doubt Congress 
 intended that ordinarily it should be regarded as sufficient for admission to a seat, but it must be mani- 
 fest that this certificate is not the real credentials of a Senator-elect, but intended originally, we may 
 presume, as a substitute for it. The real credentials of the election is a copy of the record of the election 
 itself, properly certified by the officers of the body electing; for Congress has no right to impose this 
 duty upon the governor, and that neither it nor the person elected can compel the governor to issue 
 any such certificate. 
 
 There must be design in not presenting a certified copy of the record of election by the legislatiu-e 
 instead of depending alone upon this certificate of the governor, when it was well known that everj' 
 step in the progress of this case would be contested. The declaration in the report submitted by the 
 committee, that Kellogg was then and now the governor of Louisiana, defines the spirit of the whole 
 proceeding; and that is that it is more of an object to get Kellogg recognized in some way as governor 
 by this body than the admission of Pinchback to a seat in it. 
 
 Therefore should we be more careful still how we undertake, in giving ostensible credence alone 
 to a certificate, to pass upon a higher matter — the legal character of the person giving it. Why not, 
 in such an acknowledged condition of things, recur to his credentials, which the record of the election 
 or a copy of it can make? But, that produced, it is too apparent that the contest would be transferred 
 from the governor to the legislature; the legislature is out of being, and thereftjre the fact of an election 
 by it can only be inquired into; but the governor is still living in the place in which he was put, and 
 still kept by an armed force, and to be kept there if his acts are to be respected or sanctioned by us. 
 How shall we close our eyes to the facts staring us in the face? We again beg leave to repeat that with 
 the assumption that Kellogg is at best but a governor de facto, with a rival governor claiming the right, 
 and with the acknowledged power to exercise it in the absence of the troops of the United States, should 
 we not be careful, if we can in any way abstain from determining questions of the present, which concern 
 alone the present, and which should be determined in a different way and by all branches of the Govern- 
 ment, if to be determined at all by it? The election of Pinchback does not concern the present; the 
 body electing him is functus t)fficio. He must stand or fall by the action of that body. Let us go back 
 to that, and upon the acts and legal validity of that body determine the right to a seat. We say again 
 that the passage of the resolution decides only one thing, the right of membership, and binds no one 
 to anything besides; but the fact that in doing this we have acknowledged the legal validity of Kellogg's 
 official character may influence others or justify others in doing things to the infinite injustice of the 
 people of Louisiana, and to the persons there claiming to be officers by virtue of a rightful election. 
 
 Again, we well understand the principles which limit and qualify the powers of an officer de facto. 
 His acts are scanned and judged; he can do only those that are to be considered as necessary to be done; 
 indeed, so confined in this respect that it was held, in the case of King v. Lisle, that the proper question 
 in a case would be "whether the person be an officer de facto as to the particular purpose under con- 
 sideration;" he can do nothing for himself; he can not set up title by virtue of his office; he can not 
 sue for his fees or salary; he can not justify in a trespass; he can do nothing that may bring in issue 
 his right to hold the office without showing that de jure right for the exercise of it. As a judge de facto 
 his judgment in a litigation between third parties would be good; a sale of property under such a judg- 
 ment would be good to pass title; and for the reason that third parties are not supposed to be able to 
 inquire into the rights of one holding and exercising the duties of the office, and must therefore act upon 
 what appears to be the right. But a sheriff de facto seizing and selling the property under that or any 
 other judgment in a suit against him for the seizure by the owner or possessor of the property, he must 
 for his defense show that he held bis office de jure, for this concerns himself only, and he should know 
 whether he was in right an officer.
 
 § 351 ELECTORATES INCAPACITATED GENERALLY. 255 
 
 Shorn of the general and enlai^ed powers of an officer de jure by the plainest principles of law, 
 limited and circumscribed by rules founded in reason and having the sanction of ages, shall we be 
 disposed to give to the act of such an officer — governor de facto, if even he be such — that full and unqual- 
 ified effect in this case, with the extraordinary circumstances surrounding it, as if he were an oiEcer 
 de jure, when that act, too, bears directly upon the constitution of this body, which we are bound to 
 guard, and upon the right of a State to have its true representatives upon this floor? In regard to the 
 constitution cf this body the direct issue is made; this pretended governor represents himself to be 
 the governor of Louisiana, and upon this alone does the committee rest the case. It is admitted that 
 he must be the governor to give the certificate any power whatever. In raising the question it is shown 
 that he is only governor de facto, if governor at all, and not de jure — that is, governor for a purpose only, 
 and that purpose to be judged of, whether proper or not, when the exigency arises. It is upon us, and 
 it is whether we shall constitute members of this body upon the certificates of such a governor, or shall 
 we not rather recur, as we have before inquired, into the election itself or the record of it? 
 
 Upon this body rests the duty of preserving its own organization, and of admitting its own members. 
 Here its power is supreme, and for its independence it must depend upon this power, and its proper 
 and legal and rational exercise; and it is to judge of the fact whether a certificate (not of a governor, 
 as contemplated by the law, a rightful governor in all respects — but of such a governor) shall have the 
 efficacy now asked for it. 
 
 Indeed, in this very case, in the complications in Louisiana, the troubles and disorders there, the 
 very soul of the objection that we now urge against the recognition of this certificate is made to appear. 
 There is trouble about the State government in that State. There is trouble as to who is the constitu- 
 tionally elected governor, both claiming it, and as to which body of the two claiming to be the legislature 
 is the real one. In this contest, where so much right is involved, and where right should be done, 
 might it not be that, if we should admit Pinchback upon the certificate of Kellogg, we would to that 
 extent recognize him as the rightful governor of Louisiana, and possibly direct additional power against 
 the other side? Would this be wise, and ju.st, and expedient; and when we know, too, that so far as 
 the certificate in itself is concerned it adds nothing to title, but that the election constitutes this? If 
 it is the policy to settle these disturbances in Louisiana, to recognize either governor or none, do it in 
 the usual manner known to the laws, and that is by legislation upon the part of Congress, when the 
 whole subject can be considered, and the remedy, if any, be applied. 
 
 351. The Senate election case of Pincliback and others continued. 
 
 The Senate in election cases investigates the legality of the legisla- 
 ture as organized, but refrains from questioning the titles of the compo- 
 nent parts of an undoubted legislature. 
 
 Having thus disposed of the question of the competency of Kellogg as governor, 
 the minorit}'^ continue: 
 
 Having come to the conclusion that Kellogg was a mere usurper and the certificate not entitled to 
 respect, or if it should be considered by some that he was the governor de facto, that even in this view no 
 force ought to be given to his certificate, we are brought to the consideration of the main fact itself — the 
 election of Pinchback by a legislature. While this is not technically before us, it is substantially. 
 While the report of the committee bases its action entirely upon the force of the certificate, the resolution 
 submits the question of admission generally. It can not be denied that the inquiry upon one branch 
 opens up the whole subject, and one can not be well considered without considering both. 
 
 This brings us to the examination of the body organized under the returns made by the Lynch 
 board, to which we have referred in the other branch of the case. In looking into the organization that 
 elected Pinchback, the surreptitious inauguration of Kellogg into the gubernatorial office pales into 
 insignificance before the fraudulent creation of this body into a legislature and of its shameless pretension 
 to power. 
 
 Even admit that Kellogg was the rightful governor of Louisiana and that his certificate should have 
 all the force which could properly under ordinarj' circumstances attach to it, still all the facts are before 
 us, and they are of the gravest character. The question is not who are members of the legislature of 
 Louisiana — for that body is the judge of this, and of their elections and qualifications; with these we 
 have nothing to do; but the question is as to the legislature as organized, whether there is one in being
 
 256 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 351 
 
 to elect, and whether such an one elected Pinchback. The existence of a legislature competent to elect 
 a Senator is not only a historical fact to be known to us as any other patent fact, but it is one which is 
 susceptible of proof. 
 
 It will be necessary again to give a brief r^sumd of the facts known to (»xist in Louisiana respecting 
 the organization of the body claiming to be the legislature of that State, and which elected Pinchback. 
 
 After reviewing the facts, especially the mandate of Judge Durell, of the Federal 
 court, and its enforcement by Federal troops, the minority say: 
 
 The whole proceeding from its inception down to its final consummation was a gross usurpation, 
 accompanied with every species of fraud and tyranny. The body that was organized under this man- 
 date and its military enforcement is not entitled to any legal existence that any American should acknowl- 
 edge. The whole is a product of fraud, conspiracy, and of armed force, and is entitled to no consideration. 
 
 We wish it to tie remembered that we are not inquiring into the component parts of a legislative 
 body. Each house of the legisalture must do that for itself. We are inquiring into the aggregate char- 
 acter of the body as organized and as it represents itself to be — a legislature; how it was brought into 
 being; how supported; and under what authority. We find no single element in it to constitute it a 
 legislature representing the free people of Louisiana under their constitution and laws; but, on the con- 
 trary, simply a body organized under the mandate of a Federal judge supported by the armed force of 
 the United States, based upon a pretended election found by a returning board without a single official 
 return, and not having a title of authority, and acting in violation and in defiance of all law. We find 
 that body, pretending to be the legislature of Louisiana, the mere creature of a conspiracy as bold, as 
 reckless, and as wicked as any that has ever disgraced the annals of history. We speak thus strongly 
 because our instincts as American citizens prompt us to the reprobation it so signally deserv'cs. This 
 body thus organized chose P. B. S. Pinchback a Senator in Congress for the period he claims. 
 
 The large mass of the members of it were never elected in fact; the returning board declaring them 
 to be elected had not a single power to do so; it never had an official return before it. 
 
 After reviewing the liistories of the rival legislatures, the minority continue: 
 
 Can the Senate hesitate to determine between such governments? The interposition of mere force 
 without cause and without right, by which one for the present may be put up and the other down, should 
 not deter us in determining which is the rightful one. The soldiers of the United States should not be 
 allowed to step in between our judgment and our duty. The day is not yet upon us, we trust, when the 
 sword is to settle questions alone for us to determine. Taking all the facts as they appear in the case 
 before us, from the inception of each rival body to the final consummation in their respective organiza- 
 tions, we can determine between them. It is our duty to do so: and we have facts sufficiently numerous 
 and authentic to determine fairly and intelligently between them. Each has chosen Senators, and both 
 are here with certificates. 
 
 There can be no doubt that where there are rival bodies, each claiming to be the rightful legislature 
 of a Stale, and each presenting a Senator for admission upon this floor, we must judge between them, for 
 the reason that we are to judge of the elections, the qualifications, and returns of our own members; 
 and in this we are to know whether the body choosing a Senator is the legislature having the constitutional 
 right to do so, and that such an one did choose a Senator. 
 
 This was clearly submitted in the case of Robbins and Potter, contesting Senators from Rhode 
 Island. Mr. Poindexter, who submitted the majority report in that case, says: 
 
 ■'There was but one governor and but one senate in the State claiming to be a part of the general 
 assembly. If there had existed another body of men, however chosen, contending for the offices of the 
 governor and senators in the State, it will not be denied that their respective rights might be the subject 
 of inquiry in deciding a contested election in the Senate of the United States." 
 
 The right of the Senate is undoubted to judge in this respect. Its power is not limited, for the sound 
 reason that its independence can only be absolutely preserved in po.ssessing such a right. In exercising 
 it here we should not be capricious, but governed in our conduct by rules that good sense, honest inten- 
 tion, and a desire for truth and justice should naturally inspire. No other department of the Govern- 
 ment ought to control it; no other department of the Government should be allowed, under any pretext 
 or in the exercise of any power, to trench upon it. It is a primary right, for in its free and absolute 
 exercise the very life, existence, and organization of free legislative bodies depend.
 
 §351 
 
 ELKCTOBATES INCAPACITATED GENEKALLY. 257 
 
 Coming to the main point again, should the Senate hesitate between the rival governments? How 
 can the Senate recognize the Kellogg government, stamped, as it is, all over with fraud, conspiracy, 
 and force? There is not an element of free constitutional government in it. Mere intruders and usurpers 
 in all departments of it, how shall the Senate, in respect for constitutional government, admit that such 
 a body as that organized under the order of Durell shall impose upon us a Senator? We might receive 
 with just as much plausibility and complacency a Senator from the soldiery who guarded that body 
 when it went through the forms of choosing one. The bayonet organized it, kept it in being, protected 
 it by day and by night, and without it no one would be here pressing a claim to a seat by virtue of 
 anya uthority from it. 
 
 Speaking for ourselves, we can not in any manner acknowledge any such election. We can not 
 give any respect or efficacy to the certificate under consideration as that of a rightful governor, and must 
 therefore declare that in our opinion P. B. S. Pinchback is not entitled to a seat as a Senator from the 
 State of Louisiana. 
 
 In conclusion the minority say: 
 
 It is said that the Senate is bound, or ought to be bound, by decisions of the judicial tribunals of 
 the State when inquiring into the existence of a government or of its officers; also by the action of other 
 departments of the State government: also by the late act of the President and by reason of the posses- 
 sion of the office for a length of time. We shall only briefly remark that this body is bound liy nothing 
 in the exercise of its undoubted power. But admitting that any or all of these combined should have 
 more or less influence upon the judgment of the Senate in coming to conclusions, we may be permitted 
 to say that, in regard to the judicial action of the courts of Louisiana in relation to this subject, the 
 question in issue never was fairly presented, and with the further remark that it is painfully evident 
 that a majority of the court deciding cases having relevancy at all to the subject was in complicity with 
 the Kellogg government to maintain its power; and so with the other dejiartments of the State govern- 
 ment, for all depended for their very existence upon the official being of Kellogg. As to the action of 
 the President having any tjinding force upon the Senate, we say that his power to act relates alone to one 
 thing, and that is the suppression of violence when legally called upon for aid in suppressing such 
 violence. His action can not bind beyond the simple fact and its real dependents; it decides no right 
 for us or for Congress. One word as to the continuous possession of Kellogg, and which it is claimed 
 gives him some standing to be considered in this body. His possession is that of fraud and force, and 
 this possession is to-day only held by this force. It is the possession of might against right, and the 
 weakness of the title will at once be witnessed upon the withdrawal of the force which keeps him in 
 place. In our opinion, there is nothing in the matters that would be set up to secure a recognition 
 of the Kellogg government. The whole is a crime against our civilization and a blot upon our free 
 institutions. 
 
 The resolution proposed by the majority of the committee was debated on 
 February 15, 16, and 17, 1875,' and on the latter day, by a vote of yeas 39, nays 22, 
 it was laid on the table. Mr. Lot M. Morrill, of Maine, who made the motion to lay 
 on the table, explained that he did so from no spirit of hostility to the resolution, 
 but simply because the Senate needed to proceed to other business.^ And there- 
 after during the Forty-third Congress the resolution remained on the table. 
 
 On March 5, 1875,' when the Senate met in special session, at the beginning 
 of the Forty-fourth Congress, Mr. Morton offered this resolution: 
 
 Resolved, That P. B. S. Pinchback be admitted as a Senator from the State of Louisiana for the 
 term of six years beginning on the 4th of March, 1873. 
 
 'Record, pp. 1277-1289, 1306-1310, 1327-1353, 1358-1382. 
 
 = Record, p. 1382. 
 
 ' Special session Senate, Forty-fourth Congress, Record, p. 2. 
 
 5994— VOL 1—07 17
 
 258 PKECEDENTS OF THE HOUSE OF KEPRESENTATIVES. § 352 
 
 This resolution was debated at length on March 8, 9, 10, 12, and 13,' and on 
 the latter day a motion was submitted by Mr. George F. Edmunds, of Vermont, 
 to amend the resolution by inserting the word "not" before the word "admitted." 
 
 This amendment was debated on March 15 and 16,^ and on the latter day 
 further consideration was postponed until the second Monday in December next, 
 the vote being yeas 33, nays 30. 
 
 352. The Senate election case of Pinchback and others, continued. 
 
 The Senate declined to seat the bearer of credentials signed by a per- 
 son exercising the authority of a governor, it being objected that the 
 signer was an usurper and that there was no election by a valid legis- 
 lature. 
 
 Discussion as to how far the Senate, in considering an election case, 
 should follow a decision of a State court as to the competency of the leg- 
 islature. 
 
 Discussion of the powers of the Senate under the constitutional au- 
 thority to judge the elections and returns of its members. 
 
 Instance wherein an unsuccessful contestant for a seat in the Senate 
 was permitted to withdraw his credentials. 
 
 Discussion as to the required form for Senate credentials under the 
 law. 
 
 Discussion of the judicial knowledge which must exist to justify 
 giving prima facie effect to credentials. 
 
 On Thursday, December 9, 1875,^ at the first or regular session of the Forty- 
 fourth Congress, Mr. West presented the following letter: 
 
 Washington, D. C, December 8, 1876. 
 To the Honorable the President and members of the Senate of the United Slates: 
 
 The undersigned would respectfully ask permission to withdraw his credentials as Senator-elect 
 by the McEnery legislature from the State of Louisiana. 
 
 Respectfully, W. L. McMillen. 
 
 At the same time Mr. West presented and had read an open letter from Mr. 
 McMillen to John McEnery, claimant to the governorship of Louisiana. In this 
 letter he explained how he had contested with John Ray for the remainder of the 
 term ending March 4, 1873, and with Pinckney B. S. Pinchback for the full term 
 begiruiing at that date, and how a question as to the respective bodies represented 
 by himself and his opponents had prevented an award of the seat. He then 
 continues — 
 
 In November, 1874, the successors to the general assembly electing me were chosen, and after 
 continued effort the difficulties in the way of organization of the assembly were composed. 
 
 Under the auspices of a committee of Congressmen, a plan of adjustment was agreed upon, the 
 parties thereto embracing many of the gentlemen who honored me with their support in 1872-3, and 
 the settlement resulted in the formation of a general assembly largely Democratic and conservative 
 in the lower house, and generally accepted as legitimate by both of the political parties of the State; 
 and said assembly so constituted, at their extra session in April last, did formally recognize W. P. 
 
 ' Record, pp. 3-7, 9-17, 17-25, 32^1, 41-53. 
 
 2 Record, pp. 55-62, 62-91. 
 
 ' First session Forty-fourth Congress, Record, p. 190.
 
 § 352 ELECTORATES INCAPACITATED GENERALLY. 259 
 
 Kellogg as the executive of Louisiana. Ftirther, the House of Representatives of the Congress of the 
 United States, with a large Democratic majority, following the action of the preceding Republican 
 House, did, on the 6th instant, recognize the final and determining action of the present legislature of 
 the State of Louisiana relative to the State government thereof by seating, prima facie, the six members 
 of Congress-elect from said State bearing the credentials of W. P. Kellogg, and refusing at the same 
 time to recognize your competency to exercise executive functions for Louisiana. 
 
 The letter then goes on to state that as the issues are determined a further 
 contest by him could have no beneficial effect, and he considers it his duty to "wdth- 
 draw his credentials. 
 
 The letter having been read, Mr. West offered the following — 
 
 Ordered, That the request of William L. McMillen, heretofore claiming a seat in the Senate from 
 the State of Louisiana, for the return of his credentials be granted. 
 
 On December 14' the order was debated at length, it being objected that the 
 credentials were transmitted to the Senate in pursuance of law, and that they 
 belonged to its archives and should not be withdrawn. But by a vote of j'eas 30, 
 nays 28, the order was agreed to. 
 
 On December 20- Mr. Thomas F. Bayard, of Delaware, by consent of the Sen- 
 ate, presented and had laid on the table a paper purporting to be the credentials 
 issued by John McEnery as governor, showing the appointment of Robert H. Marr 
 as Senator from Louisiana to fill the vacancy caused by the resignation of William 
 L. McMillen. 
 
 On January 18, 1876,^ Mr. Allen G. Thurman, of Ohio, presented the creden- 
 tials of James B. Eustis, of Louisiana, for the term beginning March 4, 1873. 
 These credentials were not from the governor of the State, but consisted simply of 
 duly certified transcripts of the proceedings of the legislature of Louisiana result- 
 ing in the election of Mr. Eustis. At once a question was raised by Mr. Roscoe 
 Conkhng, of New York, who called attention to the fact that the laws of the United 
 States required that the credentials of a Senator should be certified by the gov- 
 ernor of the State.* Mr. Thurman replied that there was no method of coercing a 
 governor who should refuse to sign the certificate, and the requisition of the stat- 
 utes could not be understood as constituting the certificate of the governor the only 
 evidence of the election of a Senator by a State legislature. In return Mr. Conk- 
 ling called attention to the fact that the papers nowhere alleged that the governor 
 had refused to give the ordinary credentials, and the papers themselves were not 
 those on which the Senate should rely as prima facie evidence. 
 
 Mr. Thurman cited the case of Mr. Sykes, of Alabama, wherein, the governor 
 having refused to sign credentials, a transcript of proceedings had been accepted as 
 title papers of the party. 
 
 ' Record, pp. 200-204. 
 
 2 Record, p. 248. 
 
 ^ Record, pp. 451—455. 
 
 * Sections 18 and 19 of the Revised Statutes provide; 
 
 'It shall be the duty of the executive of the State from which any Senator has been chosen to 
 certify his election, under the seal of the State, to the President of the Senate of the United States. 
 
 "The certificate mentioned in the preceding section shall be countersigned by the secretary of 
 state of the State."
 
 260 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 352 
 
 On January 24/ on motion of Mr. Morton, the papers purporting to be the cre- 
 dentials of Mr. Eustis were referred to the Committee on Privileges and Elections. 
 
 On January 26 ^ Mr. West presented a memorial of certain State senators of 
 Louisiana in relation to the election of Mr. Eustis, and was referred to the Committee 
 on Privileges and Elections. 
 
 On January 28^ Mr. Morton, from that committee, presented the following 
 report : 
 
 That in their opinion there is no vacancy in the office of Senator from the State of Louisiana, P. B. S. 
 Pinchback having been elected in January, 1873, to the term beginning on the 4th of March, 1873. 
 They therefore recommend that the papers relating to Mr. Eustis be laid upon the table. 
 
 Three members of the committee announced their dissent from the report. 
 
 On February 3,* on motion of Mr. Morton, the Senate proceeded to the consid- 
 eration of the resolution submitted by him on March 5, 1875, the pending question 
 being the motion of Mr. Edmunds to insert "not" before the word " admitted." 
 
 The debate on this proposition went on during February 4, 7, March 1, 3, 7, 
 and 8.' 
 
 Mr. James L. Alcorn, of Mississippi, who had originally concurred in the report 
 which found that there was no legal State government in Louisiana in 1873, sketched 
 briefly the developments in the situation." 
 
 McEnery's legislature was finally dispersed, and ho was driven from the field, and Kellogg was 
 left in possession. Congress refused to do anything. Kellogg, in spite of all local opposition, main- 
 tained his government. His official position was recognized in the State of Louisiana. It became an 
 accepted authority throughout the United States, so far as it could be emanating from the governor of 
 a State. Finally the House of Representatives, at the last session of Congress, passed a formal resolu- 
 tion recognizing the Kellogg government. The Senate of the United States, subsequent to that time, 
 passed a resolution to the same effect. 
 
 Therefore Mr. Alcorn urged that the certificate of Governor Kellogg should be 
 good, and should be honored. 
 
 While it was denied,' especially by Mr. George F. Edmunds, of Vermont, that 
 the Senate had m express terms recognized Kellogg as governor, and wliile a 
 reference to the resolution showed that it was merely an approval of the action of 
 the President "in protecting the government in Louisiana, of which W. P. Kellogg 
 is the executive," yet Mr. Edmunds admitted that Kellogg was the executive. 
 
 But Mr. Edmunds denied * that the question was narrowed merely to the 
 credentials. He showed that the pending resolution covered final as well as 
 prima facie right. But even narrowing the case down to the credentials, he 
 denied the effect of the Kellogg certificate: 
 
 What is this paper? It bears the great seal of the State of Louisiana. How do we know that to be 
 the great seal of the State of Louisiana? We know it upon precisely the same ground that we know 
 
 ' Record, p. 574. 
 
 * Record, p. 637. The memorial is found in Senate Miscel. Doc. No. 41, Forty-fourth Congress, 
 first session. 
 
 ' Record, p. 706. 
 
 * Record, p. 8G6. 
 
 5 Record, pp. 886-889, 907-913, 1382-1392, 1436-1444, 1511-1516, 1645-1558. 
 « Record, p. 1383. 
 
 7 Record, p. 1389. 
 
 8 Record, pp. 1436, 1437.
 
 § 352 ELECTORATES INCAPACITATED GENERALLY. 261 
 
 that there is a legislature of the State of Louisiana, or that there is not a legislature of the State of Louis- 
 iana, or that in the year 1863 there was no legislature of the State of North Carolina — I mean no consti- 
 tutional legislature under the Constitution of the United States. How, then, do we get at the first 
 knowledge, the first step, on the subject of this prima facie? We get it by the judicial knowledge — 
 to borrow a phrase of art which we are supposed to possess, whether, in fact, we do or not — that this seal 
 is the seal of the State of Louisiana. We do not get it by proof; we do not get it by attempting to hear, 
 try, or determine the question: but we get it, as I say, by that judicial knowledge which the laws of 
 the land impute to everybody called upon to administer, as we are here, either legislative or judicial 
 ftmctions. Therefore * * * this paper, on the face of it, is an official paper, emanating from some 
 executive authority or person acting in executive capacity in the State of Louisiana. Does our judicial 
 knowledge stop there? * * * No, sir. That is not the law; it is not common sense. This body, 
 in my opinion — and the law is all one way upon the subject — was in a constitutional and legal sense 
 just as well advised of the state of legality or the want of the state of legality of the legislature that 
 elected this man before the inquiry made by the Committee on Privileges and Elections as afterwards. 
 That inquiry, in the judicial sense, was an inquiry to infoim the conscience of the Senate just as we 
 refer to a lexicon or to a law book or to a precedent in our statutes. We are bound to know, in short, 
 what are the legislatures of the various States, which bodies, if there are two, or whether a particular 
 body, if there be only one, is the government of that State or is the chief officer of any department of 
 it. * * * If that be true, then this paper is not a prima facie case, as it is called, unless we also 
 have the judicial knowledge that the body of men who purport to have elected him was the legislature 
 of the State of Louisiana. 
 
 Mr. Morton, on the other hand, urged that in the recent case of Senator Spencer, 
 of Alabama,^ the Senate, under conditions the same, had honored the credentials. 
 
 Proceeding to discuss the status of the legislature, Mr. Edmunds referred ' to 
 the fact that the decision of the supreme court of Louisiana was the ground on 
 wliich the validity of the legislature was affirmed. While den;}nng that the supreme 
 court had actually declared the legislature legal, he would, for purpose of argument, 
 admit the contention. He then said: 
 
 The Constitution, which is the supreme law of the land , says that not the supreme court of Louisiana, 
 not the supreme court of any State, but we, here, under a personal oath, each one of us to do justice 
 according to the law, shall be the judge for this purpose of what the law of the State of Louisiana is. 
 Sir, I am not ready to abdicate; I have no right to abdicate. This provision of the Constitution making 
 us the judge, first, last, and always, of the election of a Senator, was inserted from the gravest consid- 
 erations, not only of public convenience, but of public safety. The fathers of the countiy in their 
 wisdom did not intend that this Government should be broken down as so many of its predecessors had 
 been by the factions and storms of localities in States, but to compose this National Government there 
 should be this perpetual and supreme tribunal, which was itself to be the judge of the election of its 
 members, and nobody else was. It was not a concurrent jurisdiction; it was an exclusive one. 
 
 On this question also, Mr. Allen G. Thurman, of Ohio, who concurred in the 
 view that the competency of tlie legislature was vital in the case, said :' 
 
 There is one conclusive answer to all that has been said about the decisions of the supreme court 
 of Louisiana, and that is that the question before us is to be decided by this Senate, and by this Senate 
 alone, and that the decision of no court, not even if it were the Supreme Court of the L'nited States, 
 has even the force of a precedent on a question like this. The Constitution makes the Senate the sole 
 judge of the elections, returns, and qualifications of its members. It can not, therefore, be bound by 
 the decision of any other tribunal or any other body of men. 
 
 ' Record, p. 1441. ^ Record, p. 1439. ^ Record, p. 910.
 
 262 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 353 
 
 On March 8, 1876/ the amendment proposed by Mr. Edmunds was agreed to, 
 yeas .32, nays 29. Then the resolution as amended was agreed to, yeas 32, nays 29. 
 So it was — 
 
 Resolved, That P. B. S. Pinchback be not admitted as a Senator from the State of Louisiana for 
 the term of six years beginning on the 4th of March, 1873. 
 
 353. The Senate election case of Pinchback and others, continued. 
 
 The Senate has admitted a person elected while the case of another 
 claimant to the seat was yet pending. 
 
 In determining an election case the Senate has taken notice of the 
 journals of a State legislature. 
 
 In a case wherein a governor declined to sign the credentials of a 
 Senator-elect the Senate admitted the claimant after examination of final 
 right. 
 
 On March 8, 1877,^ at the beginning of the Forty-fifth Congress, Mr. Thurman 
 called attention to the fact that the decision in the Pinchback case had settled 
 that there was a vacancy, and therefore removed the ground on which the committee 
 had reported against the claim of Mr. Eustis in the preceding Congress. Therefore 
 he proposed, and the Senate on the next day agreed to, a resolution taking the 
 credentials of Mr. Eustis from the files and referring them to the Committee on 
 Privileges and Elections. 
 
 On December 1, 1877,^ Mr. Bainbridge Wadleigh, of New Hampshire, from the 
 Committee on Privileges and Elections, submitted a report as follows: 
 
 Mr. Eustis claims to have been elected on the 12th of January, 1876. The body which elected him 
 was that formed by what is known as the Wheeler compromise, and there is no doubt that it was the 
 lawful legislature of Louisiana. 
 
 Two questions arise in this case: First, whether Mr. Eustis was lawfully elected; second, whether 
 at the time of his election a vacancy existed which the legislature of Louisiana had the right to fill. 
 
 The legislature of Louisiana on the 12th day of January, 1876, consisted of a house containing 111 
 members and a senate with 36 senators. On the 11th day of January, 1876, the house voted to go into 
 an election for United Stales Senator, and the senate on the same day refused to do so. On the 12th 
 day of January, it appearing that there had been no election on the day before, 64 members of the house 
 and 12 members of the senate, being a majority of all entitled to seats in both houses, met in joint 
 convention and elected Mr. Eustis. 
 
 Your committee find that although the senate refused to take part as such in said election, and 
 although a minority of the senate only did take part in it, yet there was a substantial compliance with 
 the act of Congress of 1866. Upon the constitutionality of that act your committee express no opinion. 
 The Senate has repeatedly, however, by its action affirmed its constitutionality; and your committee 
 feel bound by the precedents which the Senate has established. 
 
 The second question, whether or not a vacancy existed at the time of Mr. Eustis's election which 
 the legislature of Louisiana had the right to fill, is one of some difficulty. At the time of said election 
 Mr. P. B. S. Pinchback was the claimant for the same seat under two elections — one in 1873, the other 
 in 1875. His credentials and claims under said elections had been presented to the Senate and by it 
 referred to the Committee on Privileges and Elections. Said committee, on the 5th day of March, 1875, 
 reported a resolution to the Senate that Mr. Pinchback be admitted thereto. On the 8th day of March, 
 1876, that resolution was amended so as to change it to a resolution that he be not admitted. The reso- 
 lution was passed as thus amended on the same day. 
 
 ' Record, pp. 1557, 1558. 
 
 - Special session Senate, Forty-fifth Congress, Record, p. 39. 
 
 ^ First session Forty-fifth Congress, Record, p. 800.
 
 § 353 ELECTORATES INCAPACITATED GENERALLY. 263 
 
 Your committee feel bound to regard that vote of the Senate as a final adjudication of the claims 
 of Mr. Pinchback and a decision that he had no right to a seat. Mr. Eustis's election took place while 
 Mr. Pinchback's case was pending in the Senate, and it may be contended with much force that until 
 the final adjudication by the Senate of Mr. Pinchback's claims there was no vacancy which the legisla- 
 ture was authorized to fill. 
 
 This question arose at the first session of the Twenty-third Congress, in the case of Potter v. Robbins, 
 where a majority of the special committee of the Senate held that the legislature of Rhode Island had 
 no authority to proceed to the election of another Senator until the seat of the Senator-elect had been 
 vacated by a solemn decision of the Senate of the United States. Silas Wright, of New York, made a 
 report in behalf of the minority of said committee, in which it was contended that if the election of Mr. 
 Robbins was not made by the lawful legislature of the State it was absolutely void, and that therefore 
 Mr. Potter's election whUe Mr. Robbins's claim to a seat in the Senate was still pending was valid. 
 
 Your committee do not question the soundness of the rule laid down in that case, but are not dis- 
 posed to apply it to this case, where the circumstances are very different. In the case of Potter v. 
 Robbins Mr. Robbins had been admitted to the Senate, the committee had before it both his credentials 
 and those of Mr. Potter; but here there is no contest. The Senate never admitted Mr. Pinchback to 
 his seat, but decided that he had no right thereto. 
 
 This seat has long been vacant. Mr. Eustis is the only person who appears to claim it. The lawful 
 character of the legislature which elected him is admitted. His election was substantially in compliance 
 with the law of Congress. No one appears to contest his right to a seat. Under these circumstances 
 your committee believe that Mr. Eustis should be admitted to the Senate, and report a resolution to that 
 effect and recommend its passage. 
 
 Therefore the committee recom^mended the following: 
 
 Resolved, That James B . Eustis is lawfully entitled to a seat in the Senate of the United States from 
 the State of Louisiana, from the 12th day of January, 1876, for the term ending March 3, 1879, and that 
 he be admitted thereto upon taking the proper oath. 
 
 On December 10/ when the report came before the Senate, Mr. John J. Ingalls, 
 of Kansas, announced that, with two of his associates on the committee, he dissented 
 from the report. 
 
 Mr. Ingalls urged in the first place that the report did not touch the question 
 of the credentials, which were irregular and not in the form required by law. It 
 had not been made to appear why the executive of Louisiana had declined to issue 
 credentials. In opposition to this it was replied that a witness before the committee 
 had testified to the committee that the governor had declined to issue the certificate 
 on the ground that Mr. Pinchback had been elected to the seat. Moreover, the 
 question before committee was not one as to the prima facie title only, but also 
 referred to the case on its merits. 
 
 Taking up the first poiat touched by the report of the committee, Mr. Ingalls 
 contended that there was nothing before the Senate to show how many senators 
 and how many representatives constituted the legislature of Louisiana under the 
 constitution of Louisiana, siace the papers of Mr. Eustis did not show this. It 
 was replied that the journals of the house and senate were before the committee; 
 but Mr. Ingalls insisted that the pamphlets purporting to be such journals were not 
 properly authenticated. To this Mr. Allen G. Thurman, of Ohio, replied, in effect, 
 that the Senate were bound to take notice of the laws and journals of a legislature. 
 The journals were put in evidence before the committee and were not denied. It 
 was also stated in this connection that the Senate should take official notice of the 
 constitution of the State. 
 
 ' Second session Forty-fifth Congress, Record, pp. 82-87.
 
 264 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 354 
 
 Mr. Ingalls also contended that the election of a Senator being b}'' the legis- 
 lature, a quorum of both houses were necessary to constitute the joint convention 
 referred to in the law of 1866, and that the law might not constitutionally provide 
 that a Senator could be elected in a joint convention wherein less than a quorum of 
 one body was present. To this Mr. Thurman replied that in electing a Senator in 
 joint convention the legislature did not act in its organized capacity as a legislature. 
 Otherwise one branch might veto the election of a Senator. It was in view of a 
 condition of this sort wliicli had arisen in Indiana that the law of 1866 was passed. 
 
 As to the second point treated in the report, Mr. Ingalls urged that there was 
 no vacancy. The election was held before the Senate had acted on Mr. Pinchback's 
 claim. When the Senate did act it simply declared that Mr. Pinchback be "not 
 admitted to a seat in the Senate." In the case in the Twenty-third Congress, to 
 which the report of the majority referred, it was held that a vacancy did not occur 
 until it was officially ascertained and declared by the Senate. In reply, it was 
 stated that the case in the Twenty-third Congress was one wherein there was a 
 contestant. But in this case no one appeared to oppose. 
 
 The question being taken on the resolution reported by the committee, it was 
 agreed to — yeas, 49; nays, 8. 
 
 Thereupon Mr. Eustis appeared and took the oath. 
 
 354. The Senate election case relating to Kellogg, SpofEord, and Man- 
 ning, of Louisiana, in the Forty-fifth and Forty-sixth Congresses. 
 
 The Senate declined to give immediate prima facie effect to creden- 
 tials regular in form, but from a State where there were rival claimants 
 to the governorship and rival legislatures. 
 
 On January 20, 1877,' in the Senate, Mr. Oliver P. Morton, of Indiana, pre- 
 sented the credentials of William Pitt Kellogg, as Senator-elect from Louisiana, for 
 the term of six years commencing March 4, 1877. 
 
 On March 5, 1877,'' at the time of the organization of the Senate in the Forty- 
 fifth Congress, Mr. Kellogg advanced to the Secretary's desk to take the oath, when 
 Mr. Lewis V. Bogy, of Missouri, objected to the administration of the oath on 
 the ground that there were two legislatures in Louisiana, and that there would be 
 be a contest. On March 6, Mr. James G. Blaine, of Maine, offered the following: 
 
 Resolved, That the oaths prescribed by law be now administered by the Vice President to William 
 Pitt Kellogg, whose credentials as a Senator from the State of Louisiana were presented on the 20th 
 of January, 1877. 
 
 To this Mr. Thomas F. Bayard, of Delaware, proposed on March 7: 
 
 Strike out all after the word "resolved," and in lieu thereof insert "the credentials of William 
 Pitt Kellogg, claiming to be a Senator from the State of Louisiana, do now lie upon the table until the 
 appointment of a Committee on Privileges and Elections, to whom they shall be refen-ed." 
 
 The resolution was debated on March 6 and 7. It was urged that while ordi- 
 narily a certificate in regular form was sufficient for a prima facie case, yet in this 
 case there were two persons claiming to be governor and two bodies claiming to 
 be the legislature. Tliis fact was well known. Mr. Kellogg's credentials were 
 
 ' Second session Forty-fourth Congress, Record, p. 762. 
 
 'Special session of Senate, Forty-fifth Congress, Record, pp. 1, 2, 15, 16, 17-23.
 
 § 355 ELECTOEATES INCAPACITATED GENERALLY. 265 
 
 signed by Stephen B. Packard, as governor, but it was alleged by Mr. Bayard 
 that there was no proof that Mr. Packard was either de jure or de facto governor, 
 and in reality he was neither. There was the same vmcertainty as to the legislature. 
 On March 7,' Mr. Bayard's amendment was agreed to — yeas 35, nays 29. Then 
 the resolution as amended was agreed to — yeas 43, nays 21. 
 
 355. The Senate election case relating to Kellogg and others, con- 
 tinued. 
 
 There being two conflicting credentials, the Senate declined to give 
 immediate prima facie effect to either, although the electing and certify- 
 ing government behind one had been swept away by force. 
 
 On October 17, 1877,^ Mr. Allen G. Thurman, of OhiO; presented the creden- 
 tials of Henr}- M. SpofTord, as Senator-elect from Louisiana, for the term of six 
 years commencing March 4, 1877. These credentials were signed by Francis T. 
 Nichols, as governor of Louisiana, bore date of June 20, 1877, and stated that 
 the election of ilr. Spofford had been accomplished on April 24, 1877. 
 
 On October 18,^ the Senate resumed consideration of the resolution presented 
 the day before by Mr. Thiirman: 
 
 Resolved, That Henry M. Spofford, whose credentials as Senator from the State of Louisiana have 
 this day been read, be now sworn and admitted as such Senator. 
 
 Mr. George F. Edmunds, of Vermont, objected that while the Spofford cre- 
 dentials might be prima facie correct, yet there were on the files of the Senate 
 other credentials in favor of Mr. Kellogg. So the records of the Senate antag- 
 onized the prima facie standing of the Spofford credentials. 
 
 In support of ilr. Thurman's motion it was urged that the Senate might take 
 judicial notice of the history of the country, which showed that the legislature 
 electing ilr. Kellogg had ceased to exist, and that Mr. Packard had ceased to be 
 de facto governor. 
 
 Finally, after debate, the resolution proposed by Mr. Thurman was amended 
 and agreed to as follows: 
 
 Resolved, That the credentials of Henry M. Spofford, claiming to be a Senator from the State of 
 Louisiana, be referred to the Conmaittee on Privileges and Elections; and the said committee shall also 
 consider and report upon the credentials of William Pitt Kellogg. 
 
 On October 2^* the Senate gave the Committee on Privileges and Elections 
 authority to take testimony in the case. 
 
 356. The Senate election case, relating to Kellogg and others, con- 
 tinued. 
 
 A person ascertained by a majority of the committee to be legally 
 elected and certified was seated by the Senate, although both executive 
 and legislature were displaced by force before the Senate acted. 
 
 There being rival legislatures, the Senate, in deciding an election 
 case, investigated the titles of the legislators, even to the circumstances 
 of their elections. 
 
 ' Record, p. 23. ' Record, pp. 99-106. 
 
 '^ First session Forty-fifth Congress, Record, p. 78. * Record, p. 150.
 
 266 PRECEDENTS OP THE HOUSE OF REPRESENTATIVES. § 356 
 
 In a Senate election case, by consent of the parties, testimony taken 
 by Senate and House committees in proceedings to which neither con- 
 testant was a party, was admitted for what it was worth. 
 
 An instance wherein the Senate indorsed the principle that a legis- 
 lator whose presence was forcibly obtained and who refused to vote 
 might be counted as part of the quorum. 
 
 On November 26, 1877/ Mr. Bainbridge Wadleigh, of New Hampsliire, sub- 
 mitted the report of the committee, accompanied by the following resolutions: 
 
 Resolved, That William Pitt Kellogg is, upon the merits of the case, lawfully entitled to a seat in the 
 Senate of the United States from the State of Louisiana for the term of six years commencing on the 4th 
 day of March, 1877, and that he be admitted thereto upon taking the proper oath. 
 
 Resolved, That Henry M. Spofford is not entitled to a seat in the Senate of the United States. 
 
 In their report the committee say: 
 
 Mr. Kellogg claims to have been elected on the 10th day of January, 1877. Mr. Spofford claims to 
 have been elected on the 24th of April, 1877. In an inquiry into these cases upon their merits, the first 
 question which arises is, whether the body which elected Mr. Kellogg was the lawful legislature of 
 Louisiana at the time of such election. 
 
 There was in said State on the 6th of November, 1876, an election for governor, lieutenant-governor, 
 and members of the general assembly. The statements of the votes cast at such election were required 
 by law to be sent to a board of returning officers for all elections in the State. Said returning officers 
 were by law authorized and required to ascertain, return, and certify the election of members of the gen- 
 eral assembly. No other tribunal was clothed with (hat power or duty. They were required to report 
 their decisions to the secretary of state, and it was by law provided that the secretary of state should trans- 
 mit to the clerk of the house of representatives and secretary of the senate of the last general assembly 
 a list of the names of such persons as, according to the decisions of the returning officers, were elected 
 to either branch of the general assembly. 
 
 It was the duty of the said clerk and secretary to place the names oi such persons so furnished upon 
 the roll of the house and senate, respectively, and those representatives and senators whose names were 
 so placed by the clerk and secretary, and none others, were competent to organize the house of represent- 
 atives or senate. 
 
 The secretary of state, in obedience to the statute, transmitted to the clerk of the former house and 
 secretary of the senate a list of the names of persons by the said returning officers decided to have been 
 elected to either branch of the general assembly, and from the list thus furnished the clerk and secretary 
 organized each house of the State legislature on the 1st day of January, 1877. 
 
 By the constitution of Louisiana the house of representatives is composed of 120 members and the 
 senate of 36 members. There is no doubt that Gl members of the house constitute a quorum of that Itody, 
 and that 19 members constitute a quorum of the senate. There were present at the organization, and 
 took part in the proceedings, 8 senators holding over, and 11 newly elected — 19 in all — having the certifi- 
 cates of said returning officers, which was a quorum, and 68 representatives, thus declared to have been 
 elected, being 7 over a quorum. After such organization the members of the two houses assembled in 
 joint convention on the 10th day of January, 1877, to elect a Senator of the United States. 
 
 Upon reading the journal of each house it was found that no election of Senator had been made the 
 day before. The roll of each house was called, and it was found there were present in the joint convention 
 17 senators and 66 representatives, they composing a majority of all the members of the general assembly 
 of the State. Nominations were then made for Senator, and a viva voce vote was had, and William Pitt 
 Kellogg received the votes of 17 senators and 66 representatives, and was declared by the president of 
 the senate (the presiding officer of the joint convention) to have received a majority of all the votes of 
 the general assemljly, and to have been duly elected a Senator of the United States for the term of six 
 years beginning on the 4th day of March, 1877. 
 
 ' Senate Report No. 16, first session Forty-fifth Congress. 
 
 \
 
 § 356 ELEOTOKATES INCAPACITATED GENERALLY. 267 
 
 Your committee find that said election was held strictly in accordance with the act of Congress of 
 1866 to regulate the times and manner of holding elections for Senators. The credentials of Mr. Kellogg 
 are signed by Stephen B. Packard as governor of the State of Louisiana, and bear date the 11th day of 
 January, 1877. 
 
 It appears to your committee that Mr. Packard was on that day the lawful governor of the State of 
 Louisiana. 
 
 The report goes on to show that by returns duly transmitted by the returning 
 officers and duly counted by the legislature it was ascertained that Mr. Packard 
 was elected governor. The report then continues: 
 
 Upon the facts hereinbefore stated your committee are of the opinion — 
 
 First, that the returning officers of Louisiana were a lawful tribunal, solely authorized and required 
 to ascertain, return, and certify to the election of members of the general assembly. 
 
 Second, that those, and only those, who held certificates of election from said returning officers were 
 entitled to seats in the general assembly at the organization thereof. 
 
 Third, that the body which first organized with a quorum of the members in each branch thereof, 
 having such certificates, and which was duly recognized by the lawful governor of said State, was the 
 lawful legislature. 
 
 The proof before your committee seems conclusive that at the time the legislature which elected 
 Kellogg was organized there were present a quorum of each house thereof then lawfully entitled to seats 
 therein; that at the time of his election there were present a quorum of the general assembly then law- 
 fully entitled to seats therein, all of whom voted for said Kellogg, and that said legislatiure was recog- 
 nized by the lawful governor of said State. It was, however, contended by Mr. Spofford that it was the 
 duty of your committee to go behind the certificates of the returning officers and investigate the elections 
 of individual members of the general assembly. At his request your committee did investigate such 
 elections and find the following facts; 
 
 Of the lawful election of 57 members of the house of representative which aided in electing Mr. Kel- 
 logg there is no dispute whatever, and they now sit in the Nicholls house, which took part in the election 
 of Mr. Spofford. Three more of the members of tlie Packard house, from the parish of Orleans, were 
 until recently admitted on all hands to have had a majority of the votes cast, and your committee find 
 that they were lawfully elected. Besides these 60 members of the house, there were 11 more whose 
 election is disputed by Mr. Spofford upon the ground that they did not receive a majority of the votes 
 cast. Of the 21 members of the senate which participated in the election of Mr. Kellogg, there were 16 
 whose right to hold their seats is admitted. 
 
 The election of 3 more from the twelfth, eighteenth, and twenty-second senatorial districts is 
 disputed upon the ground that they did not receive a majority of the votes cast. Two more. Baker and 
 Kelso, were not declared elected by the returning board, but were seated by a vote of the senate acting 
 under its constitutional right to judge of the election of its own members. 
 
 Complaint is made by Mr. Spofford that one Steven, a lawful senator, was taken against his will into 
 the senate and detained there against his will for the purpose of making a quorum. Your committee 
 believe there is no good reason for such complaint. If the senate had organized witli a quorum of mem- 
 bers lawfully entitled to seats therein, as was the case, it had the undoubted right to compel the attend- 
 ance of absent members. 
 
 The senators and members whose title to seats is disputed on the ground that they did not receive 
 a majority of the votes cast were those declared elected by the returning board on account of the rejec- 
 tion of the votes cast at certain polls in the parishes of East Baton Rouge, De Soto, West Feliciana, La- 
 fayette, Morehouse, Ouachita, and Webster; in the twelfth senatorial district, composed of the parishes 
 of East Feliciana, West Feliciana, and Pointe Couple; the eighteenth senatorial district, composed of the 
 parishes of Ouachita and Caldwell; and the twenty-second senatorial district, composed of the parishes 
 of Natchitoches, De Soto, Red River, and Sabine. 
 
 There were no votes rejected in the parishes of Sabine, Pointe Couple, and Red River. A compara- 
 tively small number of the votes were rejected on account of the obvious illegalities, informalities, and 
 misconduct of the election officers, and there is little complaint on account of the rejection of such votes. 
 The rest were rejected on account of violence and intimidation which prevented a fair election. The
 
 268 PKECEDENTS OF THE HOUSE OF EEPBESENTATIVES. § 356 
 
 evidence of such intimidation is overwhelming and irrefutable. Many of the Republican leaders were 
 killed, others were tortured, others driven into exile. Companies of armed men paraded the parishes 
 by night, carrying terror wherever they went. 
 
 After citing facts as to these intimidations the committee proceed to a com- 
 plaint of Mr. Spoflord that the returning officers were guilty of fraud in rejecting 
 the returns of the parishes before mentioned, and also in having committed forgery 
 in altering the statement of votes from the parish of Vernon. "But the law is 
 clear," says the report, "that, even had the returning officers been guilty of fraud, 
 or had mistakenly exceeded their authority, it was the right and duty of the persons 
 returned by them as elected to take their seats in the general assembly." 
 
 The report, after citing section 141 of Cushing's Law and Practice of Legisla- 
 tive Assemblies and a New Hampshire case occiu-ring in 1875 (56 N. H. Reports), 
 continues : 
 
 When your committee decided to go behind the certificates of the returning officers and to seek 
 the real merits of the case in the thousands of pages of printed testimony taken for the use of the Senate 
 and House, Mr. Spofford contended that your committee should simply ascertain the number of votes 
 deposited in tlie ballot boxes at the election. Your committee believe, however, that if their inquiry 
 is to extend beyond the question as to who were the lawful governor of Louisiana and the lawful mem- 
 bers of the general assembly, it should go far enough to ascertain how far the freedom of election was 
 impaired by intimidation, violence, and crime. The law on this subject is thus stated by Cushing 
 in his Law and Practice of Legislative Assemblies, pages G7, 68, section 181: 
 
 "The great principle which lies at the foundation of all elective governments and is essential, 
 indeed, to the very idea of election is that the electors shall be free in the giving of their suffrages. This 
 principle was declared by the English Parliament, with regard to elections in general, in a statute of 
 Edward I, and, with regard to elections of members of Parliament, in the Declaration of Rights. The 
 same principle is asserted or implied in the constitutions of all the States of the Union. Freedom of 
 election is violated by external violence, by which the electors are constrained, or by bribery, by which 
 their will is corrupted; and in all cases where the electors are prevented, in either of these ways, from 
 the free exercise of their right, the election will be void without reference to the number of votes thereby 
 affected." 
 
 The evidence clearly proves, and your committee believe, that by intimidation, violence, and 
 crime freedom of election was utterly destroyed at those polls in the ten parishes heretofore referred to, 
 whose votes were rejected by the returning officers; that in throwing out such polls and declaring the 
 Republican candidates elected the returning officers did that which they believed to be legal, and 
 which was really equitable and just and what the two houses of the general assembly would have been 
 bound in law to do with the facts Iwfore them. They believe, therefore, that the members by whose 
 votes the general assembly was organized, and a sufficient number of the members by whose votes 
 Mr. Kellogg was elected, were not only lawfully but equitably entitled to their seats. 
 
 It is contended by Mr. Spofford that the legislature which elected Mr. Kellogg and the governor 
 who signed his credentials have vanished from political existence and ceased to have any authority 
 in the State of Louisiana, and that therefore, if for no other reason, his own election is valid. Your 
 committee find that at and after the organization of the legislature which elected Mr. Kellogg an over- 
 whelming array of armed and organized militarj- force was used to destroy and crush out the lawful 
 State government of Louisiana. By it the courts were overthrown and annihilated, and under its 
 constantly impending menace the lawful legislature gradually melted away and its terrorized members 
 Bought safety in the so-called NichoUs legislature or abdicated their rights. 
 
 By such and perhaps other equally illegal means the so-called Nicholls legislature at length came 
 to contain an undisputed majority of the members lawfully elected to the general assembly; and on the 
 24th day of April that legislature chose Mr. Spofford, the contestant, a Senator of the United States. 
 Your committee are of the opinion that his claim is not well founded. Until and after the election 
 of Mr. Kellogg, Governor Packard and what is known as his legislature were de facto and de jure the 
 government of Louisiana. Upon that legislature devolved the duty of electing a Senator of the United
 
 § 356 ELECTOEATES INCAPACITATED GENERALLY. 269 
 
 States. That duty -was performed by them in the election of Mr. Kellogg. Xo subsequent events, 
 especially successful revolution through treasonable force, could undo what had been lawfully done. 
 The doctrine contended for by Mr. Spofford, if established, would render insecure all political vested 
 rights. It would offer a premium to overthrow by force the result of every sharply contested election, 
 and at no distant day reduce this countrj' to the unhappy condition of those wretched communities 
 which are continually a prey to disorder and civil war. 
 
 The minority views, signed by Messrs. Eli Saulsbury, of Delaware, A. S. Mer- 
 rimon, of North Carolina, and Benjamin H. Hill, of Georgia, foimd that the Nicholls 
 legislature had a quorum in both houses, and declared that had it not been for the 
 unlawful action of the retimiing board there would have been no pretense for the 
 Packard legislature, which assembled imder protection of United States troops. 
 
 The minority deny that at an}' time the Packard senate had a quorum, since 
 it had secured the required number by force. 
 
 Then Mr. Steven, a "holding ovei*" senator, sitting in "the Nicholls legislature," happened to be 
 in the State house on business, and the sergeant-at-arms of the Packard legislature seized and took 
 him into the senate chamber to try and restore their nominal quorum. He was taken by force, and 
 against his will and protest, and he did not participate in anything done. The seizure of Mr. Steven 
 was a disgraceful proceeding, and the object had in view was to make a nominal quorum in order to 
 admit as senators, upon a feigned contest. Baker and Kelso, two candidates who were defeated at the 
 polls, and who did not even hold certificates of election from the retiu'ning board. Steven did not 
 vote, refused to participate, and without him there was no quorum present when Kelso and Baker 
 were admitted. 
 
 As to the Packard legislature the minority say: 
 
 Treachery and fraud mark every lineament of the so-called "Packard legislature'' from its incipi- 
 ency, and the Senate can not escape seeing this. But apart from fraud, where there are two rival bodies 
 of men in a State, each claiming in good faith to be the lawful legislature, and each contests the right of 
 the other from the beginning of their existence, and such contest is continued without intermission 
 untU one prevails and absorbs the other, so that the latter completely disappears, and all the coordinate 
 branches, and all the authorities, and the great mass of the people of the State, and the President and 
 courts of the United States, recognize the prevailing body as the lawful legislature, and all its acts 
 passed from its beginning as laws of the State, and recognize no single act of the body so absorbed and 
 totally disappearing, can the Senate of the United States, many months after it has so completely dis- 
 appeared, recognize the body thus disappearing as the legislature of the State by admitting to the 
 Senate as a Senator a person who claims to have been elected by such a body of men? 
 
 The statement of the proposition irresistibly suggests the answer — it can not. The Senate may 
 have the physical power to do so — it has not the right to do so — it can only do so by the arbitrary exercise 
 of lawless despotic power. Such an act on the part of the Senate could only be regarded as a defiance 
 of the authority, right, and will of the State and an insult to its dignity; it would shock the moral sense 
 of the American people, and afford cause for profound distrust and alarm for the safety of our system 
 of government. 
 
 An important question arose as to the evidence admitted in tliis case. The 
 majority report frequently cites the reports of the Field and Morrison committees 
 of the House of Representatives, and the Howe and Sherman committees of the 
 Senate. The minority views explain tliis: 
 
 The contestants were each requested to indicate what testimony he desired to produce, and after 
 debate they were requested to confer and see what state of facts they could agree upon touching 
 controverted material points at issue. Statements were submitted to Mr. Kellogg touching the result 
 of the election in parishes indicated, and Mr. Kellogg made a statement in that respect in reply. These 
 statements were received as evidence, and it was further agreed to receive the testimony, or so much 
 thereof as may be pertinent, taken by Congressional committees commonly known as the "Howe com-
 
 270 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 356 
 
 mittee," the "Morrison committee," the "Sherman committee," and the "Field committee," touching 
 Louisiana affairs. Mr. Spofford did not object to the reception of this testimony, but he strenuously 
 insisted on being allowed to take testimony in support of the several allegations specified by him. 
 
 In the debate, on November 28/ Mr. Hill, who signed the minority views, 
 explained that— 
 
 The conmiittee well knew that much testimony had been taken both by the Senate and House 
 on a former occasion involving some, but only some, of the issues between these contestants; btit know- 
 ing that that testimony was not taken in this case, and therefore was not legal testimony without their 
 admission, the committee called first upon these contestants to make statements before the committee 
 as to what points they desired evidence taken upon. 
 
 Mr. Hill went on to say that Mr. Kellogg insisted on the evidence in the Howe 
 and Sherman reports, wliich had been taken by the Senate, and Mr. Spoflford that 
 he would agree to that if the evidence of the Field and Morrison committees of the 
 House of Representatives could be referred to as evidence in precisely the same 
 manner for what they were worth. All tlie testimony in these reports was taken 
 before the election for Senator was had, and was not taken with reference to the 
 rights of the parties to this contest; but it did bring out many facts concerning 
 the election of the governor and legislature in Louisiana which it was material for 
 the Senate to understand in considering tliis question. 
 
 In addition, Mr. Spofford had asked to be permitted to take certain testimony 
 wliich he specified in addition. The minority held that he should have this right. 
 
 We are of opinion that the testimony so proposed by Mr. Spofford is material, and ought, in justice 
 to him and the Senate, to have been received. Besides, it can not be truly said that the respective 
 claims of the contestants have been decided upon their "substantial merits'' when one of them is not 
 allowed to produce material testimony which he offers and is anxious to produce. And it may be that 
 a decision made by the Senate now, without fair opportunity to produce such testimony, may be 
 reviewed and reversed at some future time. It is well to put an end to controversy now by allowing 
 both the contestants the fullest and fairest opportunity to produce all material testimony. We think, 
 therefore, that the whole matter ought to be recommitted to the committee, to the end the proposed 
 testimony may be taken. 
 
 The resolutions proposed by the majority were debated on November 28, 29, 
 and 30,^ the principal question being as to the request of Mr. Spofford. In his 
 request he had specified certain testimony intended to show ^vTongdoing by Mr. 
 Kellogg in connection with the proceedings of the returning board; but on behalf 
 of the majority it was asserted that in this point the testimony of the reports 
 accepted as evidence was full and conclusive. 
 
 On November 30 ' Mr. Saulsbury moved to recommit the subject, with instruc- 
 tions to take the testimony referred to. Tliis motion was disagreed to — yeas 29, 
 nays 29. 
 
 Mr. Hill then moved the following substitute amendment to the first resolu- 
 tion proposed by the committee: 
 
 That Henry M. Spofford be admitted as a Senator from the State of Louisiana on a prima facie title, 
 and subject to the right of William Pitt Kellogg to contest his seat. 
 
 1 Record, pp. 740, 741. = Record, pp. 730, 749, 7G7. ' Record, p. 778.
 
 § 357 ELECTORATES INCAPACITATED GENERALLY. 271 
 
 This motion was disagreed to — yeas 27, nays 29.' 
 
 The resolutions of the committee were then agreed to — ^yeas 30, nays 28. 
 
 And on the same day ilr. Kellogg appeared and took the oath. 
 
 357. The Senate election case relating to Kellogg and others, con- 
 tinued. 
 
 A Senate election case having been once decided, an attempt to reopen 
 it failed after a favorable report from a committee and elaborate dis- 
 cussion. 
 
 Discussion in the Senate of the doctrine of res adjudicata as applied 
 to an election case. 
 
 At the beginning of the next Congress, on March 21, 1879,'' Mr. Benjamin F. 
 Jonas, of Louisiana, presented in the Senate the petition of Henry M. Spofford 
 praying for the reopening of his case. The petition was referred to the Committee 
 on Privileges and Elections. 
 
 On April 16 ' Mr. Hill, of Georgia, reported from that committee the following: 
 
 Resolved, That the Committee on Privileges and Elections be authorized to have printed for its use 
 the argiiments before it in the case of Spofford against Kellogg relative to a seat in the Senate from the 
 State of Louisiana, with such evidence, papers, and documents relative to the case as it may deem proper. 
 
 Mr. Edmunds, of Vermont, made objection to the resolution if it contemplated 
 the taking of evidence in order to reopen a case which he considered settled; but on 
 a suggestion of Mr. George F. Hoar, of Mavssachusetts, the resolution was modified 
 and agreed to as follows: 
 
 Resolved, That the Committee on Privileges and Elections be authorized to have printed for its use 
 the ?rguments before it in the case of Spofford against Kellogg relative to a seat in the Senate from the 
 State of Louisiana, with such other proceedings in relation to the case as it may deem proper. 
 
 On May 1 * Mr. Saulsbury, from the Committee on Privileges and Elections, 
 reported a resolution as follows: 
 
 Resolved, That the Committee on Privileges and Elections, to which was referred the memorial of 
 Henrj' M. Spofford, praying permission to produce evidence relating to the right of Hon. William Pitt 
 Kellogg to the seat in the Senate held by him from the State of Louisiana, and in support of the claim 
 of said petitioner thereto, be, and said committee is hereby, instructed to inquire into the matters alleged 
 in said petition, and for that purpose said committee is authorized and empowered to send for persons 
 and papers, administer oaths, and do all such other acts as are necessarj' and proper for a full and fair 
 investigation in the premises. Said committee may, in its discretion, appoint a subcommittee of its 
 own members to make such investigation in whole or in part, which subcommittee shall have authority 
 to employ a clerk, stenographer, and sergeant-at-arms, and shall have all the powers of the general com- 
 mittee to administer oaths and send for persons and papers, and may make such investigation either in 
 Washington or in the State of Louisiana, and said committee or its subcommittee may sit in vacation. 
 
 On May 2 ^ the resolution came up for consideration, when Mr. George F. Hoar, 
 of Massachusetts, proposed the following amendment in the nature of a substitute: 
 
 Whereas on the 25th day of October, 1877, the Senate unanimously adopted the following resolution: 
 
 "Resolved, That the Committee on Privileges and Elections on the contested cases of William Pitt 
 
 Kellogg and Henry M. Spofford, claiming seats as Senators from the State of Louisiana, and whose cre- 
 
 ' Record, p. 797. * Record, p. 1011. 
 
 ^ First session Forty-sixth Congress, Record, p. 33. * Record, p. 1022. 
 
 = Record, p. 469.
 
 272 PRECEDENTS OF THE HOUSE OF EEPKESENTATIVES. § 357 
 
 dentials have been referred to such committee, be authorized to send for persons and papers, and admin- 
 ister oaths, with a view of enabling said committee to determine and report upon the title, respectively, 
 on the merits of each of said contestants to a seat in the Senate." 
 
 And whereas on the 26th day of November, 1877 , said committee reported the following resolutions: 
 "Resolved, That William Pitt Kellogg is, upon the merits of the case, entitled to a seat in the Senate 
 of the United States from the State of Louisiana for the term of six years commencing on the 4th day of 
 March, 1877, and that he be admitted thereto upon taking the proper oath; 
 
 " Resolved, That Henry M. Spofford is not entitled to a seat in the Senate of the United States; " » , 
 And on the 30th day of November, 1877, the Senate adopted said resolution, and thereafter on the I 
 same day said Kellogg was duly admitted to take the oath and took his seat as a Senator from said State 
 for said term: 
 
 Resolved, That said proceedings are final and conclusive upon the right of said Kellogg and the 
 claim of said Spofford to said seat for said term. 
 
 As the grounds on which it was proposed to reopen the case became of impor- 
 tance, the text of the petition' was often referred to. After the purely formal 
 Dortions, Mr. Spofford went on as to the claims of himself and Mr. Kellogg: 
 
 That a partial or imperfect investigation of their respective claims to the above-mentioned seat in 
 the Senate was had before the said committee, but the case made by your petitioner against the claim 
 of the said Kellogg was not fully heard by the committee, because they came to a sudden determina- 
 tion to close the same without giving him opportunity to adduce proof, which he had constantly offered 
 to adduce if leave were granted, having a material bearing upon the contest for said seat against Kel- 
 logg's claim; that the pendency of a controversy in the Senate relative to the disposition to bo made 
 of another contest between other parties over another seat led to the hurried closing of the evidence 
 in the case between said Kellogg and petitioner by the committee, a majority of wliom speedily made 
 a report in favor of said Kellogg's claim; that this abrupt closing of the case and refusal of petitioner's 
 request for leave to take evidence was against the remonstrance of petitioner, who desired to make a 
 formal protest, but was told that no precedent was known for such a practice; that the report of the 
 committee, made while the other controversy just referred to was under debate in the Senate, led to 
 confusion in considering, discussing, and disposing of the two cases; that for the reasons aforesaid peti- 
 tioner's case against the said Kellogg never had a full examination and hearing upon its merits, either 
 in the committee or in the Senate, and should therefore, petitioner most respectfully submits, be reex- 
 amined, to the end that justice may be done. 
 
 Petitioner further represents that the State of Louisiana, through its legislature (as will fully appear 
 by a joint resolution of the two houses of the general assembly, approved February 1, 1878, to which 
 reference is here made), has protested against the admission and retention of said Kellogg in said seat 
 and the exclusion of yoiu- petitioner therefrom as leaving unfullilled that provision of the Constitution 
 of the United States which declares "that the Senate of the United States shall be composed of two 
 Senators from each State, to be chosen by the legislature thereof, for six years. " 
 
 Petitioner further represents that he ever has been and still is ready to furnish evidence to estab- 
 lish the five specifications upon which he was not permitted to take proof heretofore, and particularly 
 evidence of the direct and active interference of said Kellogg in the preparation of illegal complaints 
 or protests against polls of which he had no knowledge. 
 
 Petitioner further represents that since the contest aforesaid and very recently he has discovered 
 new and material evidence to prove that the election of said Kellogg was null and void, by reason of 
 improper, illegal, and corrupt influences exerted by him in person to bring about his own election as 
 Senator; to prove that he obtained and held the title of governor by corrupt bargain, not by election, 
 and then used the power, patronage, and resources of the governor's office to procure the return and 
 organization of a general assembly for the purpose of electing him Senator, and afterwards employed 
 both menace and bribery among those whom he had assisted to have returned as members to induce 
 them to vote for him as Senator; and that but for such illegal and corrupt interference personally 
 exerted by the said Kellogg he would not have secm-ed the nominal election under which he claims 
 his seat. All of which petitioner now offers to prove upon a review of the case. 
 
 'Second session Forty-sixth Congress, Senate Report No. 388, p. 5.
 
 K 357 ELECTORATES INCAPACITATED GENEKALLY. 273 
 
 The resolution reported from the committee and the amendment proposed by- 
 Mr. Hoar formed an issue which was debated at length on May 2, 6, and 7.' It 
 was urged in opposition to the resolution of the committee that the case was one 
 falhng under the doctrine of res adjudicata. In support of tliis position Mr. Angus 
 Cameron, of Wisconsin, cited ^ as precedents the Fitch and Bright case, the Spencer 
 case, and the Butler and Corbin case, and also the cases of Bogy and Cameron, all 
 Senate cases. 
 
 The doctrine of res adjudicata was debated at great length, both abstractly 
 and in reference to the constitutional functions of the Senate in judging the elec- 
 tions of its own Members.^ 
 
 On behalf of the committee it was urged that the petition set forth a new ground 
 not touched on in the original case, viz, the alleged corruption of the legislature by 
 Mr. Kellogg, and that tliis justified the reopening of the case. 
 
 On May 7,* Mr. Edmunds proposed to the resolution of the committee an 
 amendment so that the inquiry as to the matters alleged in the petition should 
 go "so far only as relates to any charge in said petition of personal misconduct 
 on the part of said Kellogg which may render him liable to expulsion or censure." 
 
 This amendment was disagreed to — yeas 20, nays 27. 
 
 Thereupon ]\Ir. Roscoe Conkling, of New York, moved to amend the com- 
 mittee's resolution by adding: 
 
 Providing that the inquiry hereby authorized fshall be confined to the matters alleged in the 
 memorial of Mr. Spofford to be new and different from those covered by the previous inquiry. 
 
 This amendment was disagreed to — yeas 20, nays 27. 
 
 Mr. Edmunds proposed as an amendment the lines "recognizing the validity 
 and finality of the previous action of the Senate in the premises," which was disa- 
 greed to — yeas 20, nays 27. 
 
 Mr. Conkling then proposed the following: 
 
 Provided, That such questions in said ca.«e as were fully considered and adjudged in the former 
 investigation shall not be opened under this resolution. 
 
 Which was disagreed to — yeas 20, nays 27. 
 
 Mr. John A. Logan, of Illinois, proposed the following amendment, which was 
 disagreed to — yeas 19, nays 28: 
 
 Provided, That said committee be further empowered and directed to make inquiry and take tes- 
 timony upon the matter as to whether any unlawful or corrupt means were employed to disorganize 
 the body by which William Pitt Kellogg claims to have been elected to the Senate, or to organize that 
 by which the memorialist claims to have been elected or to secure the alleged election of the memorialist. 
 
 One amendment proposed by Mr. George F. Hoar to the committee resolution 
 was agreed to without debate. It added thereto the words: 
 
 And said committee are further instructed to inquire and report whether bribery or other corrupt 
 or unlawful means were resorted to to secure the alleged election of the memorialist. 
 
 'First session Forty-sixth Congress, Record, pp. 1022-1024, 1071-1087, 1099-1123. 
 = Record, pp. 1077-1079. 
 
 ^Note particularly the speech of Mr. Matt. H. Carpenter, of Wisconsin, Record, p. 1100. 
 * Record, pp. 1112-1123. 
 5994— VOL 1—07 18
 
 274 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 357 
 
 The question was then taken on the amendment hi the nature of a substitute 
 abeady pending, and it was disagreed to — yeas 17, nays 26. 
 
 The original resolution of the committee, as amended, was then agreed to — 
 yeas 26, nays 17. 
 
 On June 21 the Committee on Privileges and Elections, or one of its subcom- 
 mittees, was authorized to sit during the recess of Congress. 
 
 On February 9, 1880,' the Vice-President laid before the Senate resolutions 
 of the Louisiana legislature denying the validity of Mr. Kellogg's election and pro- 
 testing against liis continuance as Representative of the State. These resolutions 
 were referred to the Committee on Privileges and Elections. Also, on February 
 12,^ a memorial of certain members of that legislature, affirming the legality of 
 Mr. Kellogg's election, was presented and referred. Also, on February 17, a memo- 
 rial from certain citizens was presented and referred. 
 
 On March 22 ^ the report of the committee and the minority views were pre- 
 sented. The report was submitted by Mr. Hill, of Georgia, and was accompanied 
 by the foUowmg resolutions: 
 
 Resolved, That, according to the evidence now known to the Senate, William P. Kellogg was not 
 chosen by the legislature of Louisiana to the seat in the Senate for the term beginning on the 4th day 
 of March, 1877, and is not entitled to sit in the same. 
 
 Resolved, That Henry M. Spofford was chosen by the legislature of Louisiana to the seat in the 
 Senate for the term beginning on the 4th of March, 1877, and that he be admitted to the same on taking 
 the oath prescribed by law. 
 
 In the report, which was concurred in by Messrs. Saulsbury ; Hill ; Frances Kernan , 
 of New York; James E.Bailey, of Tennessee; Luke Prior, of Alabama, and Zebulon 
 B. Vance, of North Carolina, the facts as to the election by the legislature were 
 briefly stated, and then the committee go on to state that they have investigated 
 the subject as directed to do by the Senate. 
 
 The memorialist and the sitting Member appeared before the committee in person and by counsel. 
 On the 5th of June, 1879, the full committee commenced the examination of witnesses in this city. 
 The examination was continued in November and December by a subcommittee in the city of New 
 Orleans, and wa.s again resumed by the full committee in this city, and was continued until both parties 
 announced they had no further testimony to offer. Nearly 150 witnesses have been examined, and 
 over 1,200 printed pages of testimony have been taken and are herewith reported to the Senate, with 
 the conclusions of law and fact at which the committee have arrived. 
 
 In the opinion of your committee, the evidence, now for the first time fully taken, clearly and 
 abundantly establishes the following facts: 
 
 I. That said William Pitt Kellogg, then holding the office of governor of the State of Louisiana, and 
 pending the canvass in said election of 1876, did conspire with divers persons, and in aid of such con- 
 spiracy did fraudulently use the influence and power of his office of governor, to prevent a fair, free, 
 and legal election in said State, to the end that he might procure from the commissioners of election 
 the return of a legislature a majority of whose members should be of the Repul)lican party and pre- 
 sumed to be favorable to his election to the Senate. 
 
 II. That, having failed in this, the said William Pitt Kellogg, still holding the office of governor, 
 did conspire with divers persons, and in aid of such conspiracy did fraudulently use the influence and 
 power of his office of governor, to change the result as returned by the commissioners of election, to 
 
 ' Second session Forty-sixth Congress, Record, p. 749. 
 
 = Record, p. 833. 
 
 'Record, p. 1758; Senate Report No. 388; Record, p. 1758.
 
 § 357 KLECTOKATES INCAPACITATED GENERALLY. 275 
 
 the end that he might procure, through false certificates of election, the organization of a pretended 
 legislature a majority of whose members should be of the Republican party, and supposed to be favor- 
 able to his election to the Senate. 
 
 III. That said William Pitt Kellogg did conspire witli divers others to prevent, and by force, through 
 the metropolitan police, aided by the Army of the United States, did prevent the lawfully elected 
 members of the legislature, and especially those of the Democratic party, from assembling in the halls 
 of the senate and house of representatives in the Statehouse of the said State of Louisiana; and did, 
 by threats, by the use of money, by the promise of offices, and by other corrupt practices, compel and 
 induce to assemble in said halls, respectively, a mob of his coconspirators, against the will of the people 
 of Louisiana, many of whom had not been elected, and some of whom had been neither elected or cer- 
 tified, to the end that he might procure a pretended legislatiu-e for the inauguration of Stephen B. 
 Packard as governor, who, he well knew, had not been elected, and from which mob he might procure 
 the form of his own election to the Senate, and which pretended election he knew such pretended 
 governor would certify. 
 
 IV. That said William Pitt Kellogg having thus corruptly procured the assembling of a body of 
 persons pretending to be a legislature, in which were included persons not elected, and from which 
 had been forcibly excluded persons who had been elected and certified as members, did, by bribery, 
 by the use of money and the promise of offices, and by other corrupt practices, induce said body of 
 persons to go through the form of choosing him to a seat in the Senate of the United States. 
 
 V. That said William Pitt Kellogg, well knowing that the facts now proven to exist did exist, did 
 falsely represent that no such facts existed or could be proven, seeking thereby to induce a majority 
 of the committee, without taking the evidence which has now been taken, to make a report declaring 
 his title to the seat, and with intent to induce a majority of the Senate to admit him to the seat so 
 fraudulently claimed. 
 
 VI. That, to prevent the discovery of the briberies, frauds, and corruptions now proven to exist, 
 the said William Pitt Kellogg did procure a large number of the persons composing said pretended 
 legislature to be appointed to public offices of profit in the custom-house at New Orleans and elsewhere, 
 as inducement not to disclose the truth. That, after other persons, officers, and members of said pre- 
 tended legislature had freely and voluntarily admitted, under oath, their knowledge of said briberies 
 and corruptions, and had been summoned to appear as witnesses before your committee, and were 
 under the protection of the Senate, said W'illiam Pitt Kellogg did, by bribery and corrupt practices, 
 induce such witnesses to testify falsely that they had not made such admissions, or that, if they had 
 made them, they were not true. 
 
 The report then goes on to review the testimony by which they considered their 
 conclusions justified and then go on to discuss the question as to the reopening 
 of the case: 
 
 Your committee are unable to see how an impartial legal mind can read the evidence taken and 
 doubt the guilt of the sitting member upon every charge which has been made against him, notwithstand- 
 ing so many of the witnesses must be admitted to be disreputable. 
 
 But the sitting member, through his very aide counsel, also insisted,' with great earnestness and 
 skill before your committee, that the Senate at a former session having, "after and upon evidence going 
 to the merits of the case," declared that Kellogg was "upon the merits of the case entitled to the seat," 
 this decision is final and conclusive, and can not now be reexamined and reversed. This was the first and 
 chief position on which the title of the sitting member was made to rest. Your committee have fully 
 considered the question thus presented, and can not doubt the correctness of the conclusions at which 
 they have arrived . 
 
 Stated in the light of the facts now known and herewith reported to the Senate, this position would 
 read thus: That though the sitting memlier was not, in fact, chosen by the legislature of Louisiana, and 
 though the body of men alleged to have elected him was assembled through fraud, was held together by 
 force, and was controlled by bribery and corruption, and all this was accomplished by a conspiracy to 
 defraud the State and people of Louisiana, of which conspiracy the sitting member was himself the chief, 
 yet, the Senate having decided in ignorance and by the suppression of these facts that the sitting member 
 was entitled on the merits to the seat, the Senate is compelled to allow him to retain the seat after full
 
 276 PRECEDENTS OF THE HOUSE OF KEPRESENTATIVES. § 357 
 
 knowledge that every fact which was assumed to exist when he was admitted is and was false and untrue. 
 The reply to such a position is sufficiently furnished in the statement of the position itself. But your 
 committee will not rest the argument here, and will consider it in the light of precedent and law. Coun- 
 sel for the sitting member says: 
 
 "If, therefore, this committee and the Senate shall set aside this judgement on the merits it will 
 present to the counti-y and the world a spectacle not seen before in the century of our national existence 
 just closed." 
 
 We might justly reply to this that this case, in the facts now proven, already presents to the country 
 and the world a spectacle not before seen in this century or any previous century of this or any other 
 nation. We trust such a spectacle will never again be presented, and that it may not be it ought to be 
 now condemned by all men, and especially by this Senate. If it shall be understood that seats once 
 prociu-ed in this body by any means, however false and fraudulent, which bad men may employ cannot be 
 taken away, this Senate may soon be largely composed of members not chosen by the legislatures of the 
 States. Successful frauds will displace the positive requisition of the Constitution in the elections of 
 Senators. A case without precedent can not be decided by precedent. Fraud has certainly become a 
 powerful agent in our politics, but we are not willing to admit it has yet become the supreme law above 
 review and beyond remedy. 
 
 But while no case like this was ever before presented for decision, yet principles have been announced 
 in other cases which will furnish some guide to a proper determination of this question. 
 
 In the case of Bright and Fitch, in the Thirty-fifth Congress, the rehearing asked was refused because 
 "all the facts and questions of law involved were as fully known and presented to the Senate on the 
 former hearing as they were then presented in the memorial of the legislature asking a rehearing." It 
 was held that in such a case the judgment first rendered by the Senate "was final, and precluded further 
 inquiry into the subject." 
 
 In the Butler and Corbin case, in the Forty-fifth Congress, the report of the minority of the Commit- 
 tee on Privileges and Elections correctly stated that no allegation was made "that testimony was before 
 excluded which ought to have been admitted, or that testimony was admitted which ought to have been 
 excluded; no request by either party to produce testimony had been denied, and no pretense that 
 testimony then offered and excluded can now be produced. The jurisdiction is the same; the parties are 
 the same; the subject-matter of contest is the same, the facts are the same, and the questions of law are 
 the same." The report further said; "If, on the former hearing, Mr. Corbin had been denied the privi- 
 lege of introducing material facts which he offered to produce; if he presented material facts now which 
 were then unknown; if all the facts and questions of law now known and presented were not then as fully 
 known and presented, the undersigned will not undertake to say his petition for a rehearing ought not, in 
 justice and right, to be gravely heard and considered on the merits." The Senate adopted these views, 
 though it is a significant fact that a large and intelligent minority of the Senate voted to unseat Mr. 
 Butler and to admit Mr. Corljin, when not a single new fact or question of law had been presented or 
 offered. 
 
 Yoiur committee freely admit that a decision rendered on the merits ought not to be afterwards 
 reviewed and reversed on light or even doubtful grounds. In the courts the familiar rule is that new 
 evidence to authorize a reversal "ought to be material and such as would probaljly produce a different 
 result." In this case your committee are willing to apply a much stronger test, though there is no reason 
 why a stronger should be required. Let us adopt and apply the rule so strongly and forcibly expounded 
 by a distinguished member of this Senate in the following language: 
 
 "The Senate would do manifest injustice were it hastily and without the most plain and most mani- 
 fest reason to reverse a decision that had been made seating a Senator on this floor. The case must be 
 extremely strong that would justify such a proceeding. All that I am free to admit, but to say that the 
 technical rule of res adjudicata that applies to courts of justice applies in this Chamber on a question of 
 this kind is to confound all distinctions and to disregard all the laws of this body." (Congressional 
 Record of May 7, p. 24.) 
 
 Let us now apply this rigid rule to the present case: 
 
 1. On the former hearing not a single witness was examined. Some admissions were made by the 
 parties, and some reports of investigations by Congressional committees not on the issues involved in this 
 contest "were agreed to be considei-ed in evidence as far as they were pertinent." This was done only 
 to narrow the field of investigation.
 
 § 357 ELECTORATES INCAPACITATED GENERALLY. 277 
 
 On this hearing nearly 150 witnesses have been examined, making over 1,200 printed pages of 
 testimony of the most material and controlling character. 
 
 2. On the former hearing the memorialist begged and pleaded for the privilege of having witnesses 
 called and examined on five points not covered by the admissions and reports above referred to, and by 
 which witnesses he alleged he could prove, among other things, the direct personal complicity of the 
 sitting member in glaring frauds in the pretended legislature which elected him. All these appeals were 
 refused by the majority of the committee, although an investigation had been previously ordered by the 
 Senate and resolved upon by the committee, and the investigation was suddenly closed against the protest 
 of the memorialist and a minority of the committee. 
 
 On the present hearing the witnesses have been examined, and the complicity of the sitting member 
 in the frauds alleged has been most convincingly established. 
 
 3. On the former hearing there was no evidence and no opportunity to produce evidence showing 
 conspiracies, briberies, and other corruptions by the sitting member to procure a fraudulent legislature, 
 and to control the members thereof in his own election to the Senate. 
 
 On the present hearing such conspiracies, briberies, and corruptions of the most startling, unblushing, 
 and unparalleled character have been positively testified to by numerous witnesses, and these briberies 
 and corruptions have been shown to extend to the witnesses in the case in the very face of the Senate. 
 
 Your committee could multiply the features of contrast between the former and the present hearing 
 in this case, but we forbear. Under the most technical rule of res adjudicata there is not a court in civil- 
 ized Christendom which would hesitate to review and reverse a judgment so utterly unauthorized and 
 unjust; and surely it can not be contended that the Senate can have less power than a court to annul 
 such a decision. 
 
 Conceding then, for the argument, that the Senate in passing upon contests for seats in this body acts 
 as a court, and that the technical rule of res adjudicata applies to decisions rendered in such cases, do 
 courts not reexamine, review, and reverse their decisions? Are not appeals, writs of error, motions for 
 new trials, and bills of review familiar to us all? The Senate, in considering such cases in the first 
 instance, is not bound by the forms of proceedings in the courts. We have no declarations, no com- 
 plaints, no bills in chancery-, nor pleas, demurrers, answers, and joinders of issue in the Senate. If the 
 Senate proceeds to original judgment without the pleading known to the courts, may not the Senate also 
 proceed to review, reexamine, and reverse such judgments when good cause is shown, without resorting 
 to the processes which in such cases are known to the courts? If the Senate is a court, then if the facts 
 in a given case are such as would require the vacation of a judgment if rendered by a court, surely the 
 Senate would also be authorized to vacate such judgment. The exclusion by the court of material testi- 
 mony on the first hearing, the discoverj- of new and material evidence since the hearing, the existence 
 of frauds, forgeries, briberies, and perjuries in procuring the first judgment are all well-known grounds 
 on either one of which courts, by some of the methods of proceeding, will review and reverse such judg- 
 ments. All these grounds are shown by the evidence and the records of this Senate to exist in extraordi- 
 nary' clearness, force, and repeated abundance in the case we are now considering. Is the Senate, by 
 being likened to a court, to be bound by decisions which a court would rigorously vacate and annul? 
 
 But the attempt to apply to the Senate the technical rule of res adjudicata as it obtains in the courts 
 is a palpable sophistry and not an argument. In the correct and forcible language of Senator Thurman, 
 before quoted, "it confounds all distinctions and disregards all the rules of this body." 
 
 In cases where the contestants claim to represent the same State government, and the issue between 
 them is one of informality or irregularity, or noncompliance with statutory provisions, there would 
 be some show of reason for the application of this doctrine. In such cases there ought to be an end of 
 litigation in the Senate as well as in the courts. A wise policy would certainly require in such cases the 
 principle if not the rule of res adjudicata. It is to such cases the authorities cited by the eminent counsel 
 for the sitting member were intended to apply. 
 
 But the questions involved in the present case rise immeasurably above such issues. They are not 
 questions of regularity, but of authority. They are not questions of discretion, but of duty. They exist 
 more between the State of Louisiana and this Senate than between the contestants. In their nature 
 these questions are not merely judicial, but political in the highest sense. 
 
 The Constitution says: 
 
 "The Senate of the United States shall be composed of two Senators from each State, chosen by the 
 legislature thereof."
 
 278 PKECEDENTS OF THE HOUSE OF EEPKESENTATIVES. § 357 
 
 Can a man Bit as a member of this Senate who was not chosen by the legislature of his State? But 
 suppose, in ignorance of the fart that he was not so chosen, the Senate is induced to declare him entitled 
 to the seat "on the merits," after investigation; does such erroneous decision supplant the Constitution 
 and give him a title after the mistake becomes known? 
 
 Let us suppose an impossible case: Suppose a majority of this Senate should for any purpose, par- 
 tisan or otherwise, seat a man in this body who they knew was not chosen by the legislature of his State, 
 would any future Senate be compelled to continue such person in the seat? Would not such continuance 
 be as criminal as the original admission? Will any man pretend that a plain constitutional provision can 
 be superseded by a mistaken decision of this Senate? If the sitting member was not chosen by the legis- 
 lature of Louisiana, every hour he sits on this floor after that fact is known is a violation of the Constitu- 
 tion. It is a question of obedience to the Constitution. Can any person estop this Senate, can the Sen- 
 ate estop itself, from obeying the Constitution? Can the Senate estop itself from inquiring toties 
 quoties whether he was chosen by the legislature? Can it be so estopped by its own erroneous deci- 
 sion on a former hearing? 
 
 In cases like the one now before us your committee do not hesitate to adopt the language employed 
 by those eminent constitutional lawyers — Mr. Collamer, of Vermont, and Mr. Trumbull, of Illinois — in 
 the Fitch and Bright case in 1859. They said : 
 
 "The power of the Senate to judge of the election and qualification of its own members is unlimited 
 and abiding. It is not exhausted in any particular case by once adjudicating the same, as the power of 
 reexamination and correction of error and mistake, incident to all judicial tribunals and proceedings, 
 remains with the Senate in this respect, as well to do justice to itself as to the States represented or to the 
 persons claiming or holding seats. Such an aliiding power must exist to purge the body from intniders; 
 otherwise anyone might retain his seat who had once wrongly procured a decision of the Senate in his 
 favor by fraud or falsehood, or even by papers forged or fabricated." 
 
 In the light of the evidence now before the Senate the sitting member was admitted by a wrongly 
 procured decision of the Senate in his favor by means quite as criminal as those stated in the last para- 
 graph quoted, since the means employed by him to secure his pretended election included conspiracies, 
 briberies, and perjuries often repeated, and the knowledge of which was vigorously suppressed on the 
 former hearing. He was not chosen by the legislature of Louisiana. He was chosen by a body of men 
 who conspired with him to defeat the will of the State, and who excluded by force the members elected 
 by the people in order that the conspirators might be enabled to accomplish their work. 
 
 The primary authority to determine what is the legislature of a State is and must be the State herself. 
 When the State determines that question for herself, it is determined for all the world. In case there are 
 two governments, or two bodies each claiming to be the true government or the true legislature of the 
 State, and the State has not determined the controversy, the duty may devolve upon others, and in this 
 case upon this Senate to adjudge that question pro hac vice. 
 
 In January, 1877, a portion of the members elected by the people united with others not elected 
 and seized the Statehouse by cooperation with the sitting member, who was then acting as governor, 
 were barricaded in the building, which was surrounded with troops, and refused to permit other elected 
 members to be admitted into the building. The barricaded persons called themselves the legislature, 
 and the excluded members met in St. Patrick's Hall and called themselves the legislature. This was 
 the condition of things when the sitting member presented his credentials to this Senate and asked to be 
 admitted to his seat on this floor. He was not admitted, but his credentials were referred to the Committee 
 on Pri\aleges and Elections. Before the committee took any action whatever the issue thus raised 
 between these two rival bodies was settled by the State. It was decided that the body which assembled 
 and oi-ganized in St. Patrick's Hall was the true legislature of the State. This decision was accepted by 
 all the people of Louisiana and by all the departments of her government, by the President and House 
 of Representatives, and by the circuit and district courts of the United States, and finally by all the 
 persons who composed the body which seized the Statehouse. The latter, which had been known as the 
 Packard legislature, disbanded, leaving not a resolution, or act, or other thing which has ever been recog- 
 nized as authoritative, or which has been claimed to be valid, save only the pretended election of the 
 sitting member to this Senate; and this single act has been recognized only by this Senate. The former 
 body, which had been known as the NichoUs legislature, performed all the functions of a legislature from 
 the beginning, passed laws which are obeyed by all the people and enforced by all the courts. All the 
 persons who had been elected left the pretended Packard legislature and took their seats in the NichoUs 
 
 I 
 
 I
 
 § 357 ELECTORATES INCAPACITATED GENERALLY. 279 
 
 l^islature, and those who had not been elected admitted they were not elected, without even a contest, 
 and went home or into the custom-house or some other Federal office. 
 
 The regular legislature thus organized, composed of all the members elected by the people, chose 
 the memorialist to the seat he is now claiming. The election was free, regular, legal, and without taint 
 of corruption of any kind, and his credentials are in due form. Of a legislature which was composed, 
 when full, senate and house, of 156 members, the memorialist received over 140 votes. 
 
 Since the former hearing in this case the supreme court of Louisiana has also decided that the officers 
 of the Packard government had, in Januarj-, 1877, no official status, and that no acts performed by them 
 at that time, though purporting to be performed ^•irtute officii, could have the force and effect of official 
 acts. (State ex rel. Lipo v. Peck, 30 Annual Reports, 280.) 
 
 And in addition to all this, the e\ddence now taken shows that the Packard legislature, which pre- 
 tended to elect the sitting member, was, in fact as well as in law, not a legislature, but was a body of men 
 assembled by fraud, held together by force and controlled by bribery, with the aid and in the interest 
 of the sitting member. 
 
 Mr. George F. Hoar, of Massachusetts, submitted the minority views, which were 
 concurred in by Messrs. Angus Cameron, of Wisconsin, and John A. Logan, of 
 Illinois: 
 
 The party majority in the Senate has changed since Mr. Kellogg took the oath of office in pursuance 
 of the above resolution. Nothing else has changed. The facts which the Senate considered and deter- 
 mined were in existence then as now. It is sought, by mere superiority of numbers, for the first time 
 to thrust a Senator from the seat which he holds by virtue of the express and deliberate final judgment 
 of the Senate. 
 
 The act which is demanded of this party majority would be, in our judgment, a great public crime. 
 It will be, if consummated, one of the great political crimes in American history, to be classed with the 
 rebellion, with the attempt to take possession by fraud of the State government in Maine, and with the 
 overthrow of State governments in the South, of which it is the fitting sequence. Political parties have 
 too often been led by partisan zeal into measures which a sober judgment might disapprove, but they 
 have ever respected the constitution of the Senate. 
 
 The men whose professions of returning loyalty to the Constitution have been trusted by the gener- 
 ous confidence of the American people are now to give evidence of the sincerity of their vows. The 
 people will thoroughly understand this matter, and will not be likely to be deceived again. 
 
 We do not think proper to enter here upon a discussion of the evidence by which the claimant of Mr. 
 Kellogg's seat seeks to establish charges affecting the integrity of that Senator. Such evidence can be 
 found in abundance in the slums of great cities. It is not fit to be trusted in cases affecting the smallest 
 amount of property, much less the honor of an eminent citizen, or the title to an object of so much desire 
 as a seat in the Senate. This evidence is not only unworthy of respect or credit, but it is in many instances 
 wholly irreconcilable with undisputed facts, and Mr. Kellogg has met and overthrown it at every point. 
 
 The report was taken up for consideration on April 22, and thereafter was 
 debated at length on April 23, 26, 27, and 30, May 3, 4, 7, 10, 14, 20, and Jime 5, 
 7, and 11.' On May 7 ^ Mr. George F. Hoar proposed the following amendment: 
 
 Strike out all after the word "resolved" where it first appears, and insert the following: 
 " That in the judgment of the Senate the matters reported by the Committee on Privileges and Elec- 
 tions at the present session respecting the right to the seat in this body now held by William Pitt Kellogg 
 and claimed by Henry il. Spofford are not sufficient to justify the reopening of the decision of the Senate, 
 pronounced in its resolution adopted on the 30th day of November, A. D. 1877, that said Kellogg was, 
 upon the merits of the case, lawfully entitled to a seat in the Senate of the United States from the State 
 of Louisiana for the term of six years commencing on the 4th day of March, A. D. 1877, and that said 
 Spofford was not entitled to a seat in the Senate of the LTnited States." 
 
 > Record, pp. 2676, 2735, 2909, 2952, 2972, 3108, 3161, 3232, 3270,3313,3362,3456, 3511, 3551, 4238, 
 4414. 
 
 2 Record, pp. 3108-3116.
 
 280 PKECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 357 
 
 The debate was elaborate, but it appeared that a portion of the majority 
 party in the Chamber did not subscribe to the conclusions of the committee. 
 
 The minority having set up the doctrine of res adjudicata, the question as 
 to the exact functions of the Senate under the constitutional provision making 
 it the judge of the elections of its Members became one of importance. On behalf 
 of the majority Mr. Bailey declared' that the Senate was not a court in the strict 
 sense, but that its duties in judging elections were in the broadest sense political. 
 Mr. Pryor made ^ an elaborate constitutional argument to show that the word 
 "judge" did not convert the Senate into a judicial body. Mr. Hill insisted again 
 that the Senate was a political body, not a court." On the other hand, Mr. Hoar 
 argued,^ from the history of the Constitution that in cases of this sort the Senate acted 
 as a judicial body. Also Senators Wade Hampton and Marion Butler, of North 
 Carolina, differing from their party associates, held ^ that the Senate in such cases 
 acted as a court. 
 
 As to the doctrine of res adjudicata itself, Mr. Hill set forth" the doctrine 
 that the Senate could constitutionally judge only as to who were elected its mem- 
 bers and could not judge as to what was the rightful legislature of a State. That 
 decision belonged to the courts, the executive, and the people of the State itself. 
 In this case the Senate had presumed to judge what was the legislature. That 
 decision was void, beyond jurisdiction, attackable collaterally. Mr. George G. 
 Vest, of Missouri, considered * the decision of the supreme court of Louisiana con- 
 clusive that the Nichols legislature was the only lawful one. The Senate, in his 
 opinion, was a "creature of the Constitution and has absolute power, irrespective 
 of all teclinical rules of proceeding, to determine its own constitutional member- 
 ship." The theory of Mr. Hill was combated by Mr. Matt H. Carpenter, of Wisconsin, 
 who declared "Where a court has jurisdiction at all it has jurisdiction to decide 
 every question necessary to the decision of the question that it must settle." 
 Therefore the Senate could decide as to the competency of the legislature, and 
 its conclusion was not void. 
 
 On the doctrine of res adjudicata Mr. Carpenter declared' that the peace of 
 society required that some things should be presumed even against notorious facts, 
 and cited the Supreme Court case of Fletcher v. Peck (6 Cranch, 130). A wise 
 rule for the courts must be a wise one for the Senate acting in its judicial capacity. 
 Mr. Hampton, while believing that Mr. Kellogg was wrongly seated, said:' "I 
 believe we have not the power, the rightful power, to rectify the wrong." And 
 his colleague, Mr. Butler, also declared ° that a Member seated on the merits of 
 his case could be unseated only by expulsion, for he believed that the Senate 
 expended its power when once it judged. The Throckmorton case (98 U. S., 61) 
 was cited by Mr. Carpenter on this point. 
 
 ' Record, p. 2677. * Record, p. 3162. ' Record, pp. 3319, 3320. 
 
 = Record, p. 3110. * Record, pp. 3314, 3511, 3512. » Record, p. 3315. 
 
 3 Record, p. 3236. « Record, p. 2973. » Record, pp. 3511, 3512.
 
 § 358 ELECTORATES INCAPACITATED GENERALLY. 281 
 
 Messrs. Keman, of New York, and Pendleton, of Ohio, held ' that material or 
 relevant facts ascertained after the decision might justify a review, but the latter 
 considered the new evidence was not such as to Justify the reopening. 
 
 As to precedents, the Gholson and Claiborne case in the House of Represent- 
 atives in 1837 was cited' and its applicability as a precedent was also denied.' 
 The Reeder and Wliitfield case in the Hoiise of Representatives in 1856 was also 
 cited.' It was claimed for each of these cases that the House reviewed a decision, 
 but this was denied. 
 
 No decision on the question was reached at this session of Congress. 
 
 By the time the Third session of the Congress began, Mr. Spofford had died, 
 and on December 7* Mr. Jonas presented the credentials of Thomas Courtland 
 Manning, appointed a Senator by the governor of Louisiana to fill the vacancy 
 occasioned by the death of Henry M. Spofford, who claimed to be elected Senator 
 from that State ; which were referred to the Committee on Privileges and Elections. 
 
 No further action was had, Mr. Kellogg retaining the seat. 
 
 358. The Senate election case of Sanders, Power, Clark, and 
 Maginnis, from Montana, in the Fifty-first Cong-ress. 
 
 There being conflicting credentials resulting from elections by rival 
 legislative bodies, the Senate declined to give prima facie effect to the 
 papers and examined the final right. 
 
 A Senate discussion favoring recognition of a legislative body having 
 a legally certified but not legally elected quorum in preference to one 
 having an elected but not certified quorum. 
 
 A legislature in electing a Senator may act under the law as an 
 assemblage of legislators rather than as two organized legislative bodies. 
 
 On January 16, 1890,^ in the Senate, Mr. Henrs' M. Teller, of Colorado, presented 
 a paper purporting to be the credentials of Wilbur F. Sanders, chosen a Senator by 
 the legislature of Montana, and also a paper purporting to be the credentials of 
 Thomas C. Power, chosen a Senator by the legislature of the same State, which 
 were read and referred to the Committee on Privileges and Elections. 
 
 These credentials were alike in form. Each recited that the senate and house 
 of representatives had duly organized and elected as United States Senator, the 
 bearer, whose name was given. Then the credentials* proceeded as follows: 
 
 Whereas Hon. Joseph K. Toole, the governor of said State, upon the 10th day of January, A. D. 1S90, 
 did refuse to certify such election of said Wilbur F. Sanders for said Senator: 
 
 Now, therefore, I, Louis Rotwitt, secretary of the State of Montana, do hereby certify that the said 
 Wilbur F. Sanders has been duly elected by said joint assembly Senator in Congress from said State of 
 Montana. 
 
 In testimony whereof I have set my hand and caused the great seal of the State of Montana to 
 
 > Record, pp, .3363, 3364, 4239. 
 
 = Record, pp. 2678, 3162. 
 
 3 Record, p. 3112. 
 
 * Third session Forty-sixth Congress, Record, p. 15. 
 
 'First session Fifty-first Congress, Record, p. 633. 
 
 'For forms of the credentials in this case, see Record, p. 3419.
 
 282 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 358 
 
 be aflBxed at my office in Helena, the capital of said State, in the year of our Lord, 1890, and of the 
 independence of the United States of America the one hundred and fourteenth. 
 
 [seal.] L. Rotwitt, 
 
 Secretary of State of the State of Montana. 
 
 On January 23 ^ Mr. George G. Vest, of Missouri, presented a paper purporting 
 to be the credentials of William A. Clark, and also a paper purporting to be the 
 credentials of Martin Maginnis, elected Senators by the legislature of the State of 
 Montana, which were read and referred to the Committee on Privileges and Elections. 
 
 On motion by Mr. Vest, and by unanimous consent, 
 
 Ordered, That, pending the settlement of the contested election cases of Senators from the State of 
 Montana, Messrs. Wilbur F. Sanders, Thomas E. Power, William A. Clark, and Martin Maginnis be 
 admitted to the privileges of the floor of the Senate. 
 
 These credentials were dated "The State of Montana, Executive Office," 
 recorded the election of the bearers by the legislature, and concluded: 
 
 Now, therefore, I, Joseph K. Toole, governor of the State of Montana, do hereby certify that the said 
 William A. Clark has been duly elected by such joint assembly to serve as Senator in Congress from the 
 State of Montana. 
 
 In testimony whereof I have hereunto set my hand and caused the great seal of the State of Montana 
 to be affixed. Done at my office, in Helena, in the year of our Lord, 1890, and the year of American 
 Independence the one hundred and fourteenth. 
 
 Jos. K. Toole, Governor of Montana. 
 
 In fact, the "great seal of the State" was not affixed to the credentials. The 
 signature of the governor was attested only by a notary public. 
 
 The credentials were referred, neither of the claimants being permitted to take 
 the oath. 
 
 On March 24^ Mr. George F. Hoar, of Massachusetts, chairman of the com- 
 mittee, submitted a report concurred in by himself and by Messrs. William P. Frye, 
 of Maine; Henry M. Teller, of Colorado; William M. Evarts, of New York; and John 
 C. Spooner, of Wisconsin. Dissenting minority views were presented by Messrs. 
 Z. B. Vance, of North Carolina; J. L. Pugh, cf Alabama; George Gray, of Delaware; 
 and David Turpie, of Indiana. 
 
 The report first states the facts: 
 
 No distinction exists between the cases of Messrs. Sanders and Power, and no distinction exists 
 between the cases of Messrs. Clark and Maginnis. The cases on each side have been presented and 
 argued upon the merits of the title, and not merely upon the question presented by the certificate of 
 the governor or of the secretary of state. The committee, therefore, have considered and repor 
 upon the whole case upon its merits. 
 
 The claimants on both sides seem to be agreed that a lawful joint convention was held in Montana 
 by the members of the two houses of the legislature, and elected Senators by due proceedings. The 
 dispute is which of two bodies claiming to be the lawfully organized house of representatives of Mon- 
 tana was entitled to that character. 
 
 There was no election of Senator by concurrent vote on the Tuesday appointed for that purpose by 
 the statute of the United States (Rev. Stat., sees. 14, 15). On the following day one-half the members 
 of the senate met in joint assembly with a body which had assembled and organized in a room called 
 the Iron Hall, which body was known as the Iron Hall or Republican house, whereupon, a ballot for 
 
 ' Record, pp. 795, 3419. ^ Senate Report No. 538.
 
 § 358 ELECTORATES INCAPACITATED GENERALLY. 283 
 
 Senator being had, Mr. Sanders had a majority of all the votes cast, and was declared duly elected. 
 No other person having such majority, the convention was adjourned until the day following, when, a 
 ballot for Senator being held, Mr. Power had a majority of all the votes cast and was declared duly 
 elected. If this body were the lawful house of representatives of Montana, these two gentlemen were 
 duly chosen Senators. 
 
 On the same day the other half of the members of the senate met in joint assembly with a body 
 which had assembled and organized in the court-house, which body was known as the Court House or 
 Democratic house, voted for Senators by separate ballotings, adjourned from day to day, and continued 
 balloting until Messrs. Clark and Maginnis had a majority of all the votes cast and were declared duly 
 elected. If this body were the lawful house of representatives of Montana, these two gentlemen were 
 duly chosen Senators. 
 
 These two bodies were composed as follows: By the constitution of Montana the house of repre- 
 sentatives consists of fifty-five members, of whom twenty-eight are a quorum. Twenty-five persons of 
 whose title to sit in the house of representatives and take part in its proceedings no question is made, 
 together with five persons claiming to be entitled to sit and take part as representatives from the county 
 of Silver Bow, met, as above stated, at the Iron Hall, at the time fixed by the constitution for the meeting 
 of the legislature, and organized there. The auditor, who is required by the constitution to preside at 
 the organization of the house, called them to order and presided till a speaker was chosen. Twenty- 
 four other persons of whose title to sit in the house of representatives and take part in its proceedings no 
 question is made, together with five other persons claiming to be entitled so to sit and take part as rep- 
 resentatives from the county of Silver Bow, met, as above stated, at the court-house, at the time fixed 
 by the constitution for the meeting of the legislature, and organized there. 
 
 The whole case, therefore, turns upon the question which of these two sets of five persons was 
 entitled to sit in the house of representatives from the county of Silver Bow, take part in the organiza- 
 tion and other proceedings down to and including the time of the election of Senators. It is not claimed 
 that there was any adjudication of the house itself affirming or denying such title. 
 
 In determining the question as to the rights of the respective claimants to the 
 five contested seats the committee discuss three questions: 
 
 First. Which of the two sets or groups of five members claiming to sit for the county of Silver Bow 
 had credentials from the officer or board entitled to canvass the vote and declare the result? 
 
 On this question a sharp difference arose between the majority and minority, 
 arising from different constructions of the laws of Montana. The majority held that 
 the credentials issued by the State canvassing boards were the only lawful cre- 
 dentials. The minority sustained the credentials issued by the county clerks. 
 The case largely turned on this issue, which was discussed at length in the reports 
 and in the debate on the floor. 
 
 Second. If one group of five had the lawful credentials, but the other group were in fact elected, 
 which was legally entitled to sit in the house at its original organization and remain and take part in 
 all subsequent proceedings until the house itself had adjudicated their title, there being in existence 
 two bodies each claiming to be the true house? 
 
 The majority report says: 
 
 It will hereafter appear that it is unnecessary to decide this question for the purposes of the present 
 case. We believe, for reasons hereafter stated, that the certificates of the State board declared the 
 true will and choice of the people as expressed by a majority of the votes actually and lawfully cast. 
 But, as the matter has been discu.ssed, it is proper to say that we are unable to see any distinction in 
 principle between the case of a person claiming title to a seat in an assembly whose character is disputed 
 by some other body, and in an assembly whose character is undisputed. The majority of persons having 
 a right to seats in the house of representatives have a right to organize that house and to transact all its 
 lawful business, including the enactment of laws and the election of Senators. Persons who have the 
 certificates of election have such right to seats. Every act of the a.ssembly in which they take part, 
 and to which their consent is necessary, has as absolute validity as if their title had been affirmed by
 
 284 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 358 
 
 an adjudication of the house itself. Their title is not, as is sometimes carelessly said, a prima facie 
 title. It is an absolute title, continuing until the house itself has adjudicated that some other person 
 be admitted to their place. This adjudication is only operative for the future, and has no retroactive 
 effect whatever. When the house makes the inquiry on the merits, it may treat the credentials as 
 prima facie evidence upon that question. But until the house tries the case, the credential is conclu- 
 sive as to all the world. 
 
 If this be true, how can an attempted usurpation by another body of the functions of the house, to 
 which they belong, in the least affect their right? If four certified members had come over from the 
 court-house to the Iron Hall, according to this argument, these men, who had no title to their seats beftire, 
 would at once become entitled to them. If the men who went to the court-house had never gone there 
 or made any claim to the seats, in that case, according to this theory, the five certified members from 
 Silver Bow would have been all right. It seems to us impossible to believe that the right of these gen- 
 tlemen to sit and vote, the validity of any laws they might have helped to enact, or of the choice of any 
 ofiicer they might help to elect, should depend on the acts of other persons. 
 
 This question may be raised at the beginning of any session of Congress. If the certificate of the 
 proper officer of the State give no title, surely the act of the clerk in placing the claimant's name on a 
 roll can give none. It would be competent, if the claim we are dealing with be sound, to organize the 
 House of Representatives of the United States with a quorum partly made up of persons having creden- 
 tials and partly of persons having none, and thereby put upon the Senate, when called upon to determine 
 whether it will recognize such a body, the necessity of going into evidence of what occurred at the 
 popular elections and of trying the right of the Members of the House to their seats. The President must 
 make for himself a like inquiry, and perhaps the courts a third. It might be that these bodies would 
 come to different conclusions upon the voluminous and conflicting evidence in a contested-election case, 
 and thus the whole Government would be thrown into confusion. We suppose that there has been more 
 than one occasion in recent years when a majority of the Senate firmly believed that enough of the 
 Members of the House who held credentials were not duly elected to change the political majority. I 
 this doctrine be accepted, the party in the minority in the House may at any time associate with them- 
 selves persons enough claiming to have been chosen to make a quorum, and disregard the certificates of 
 the executives of the States and the Clerk's roll. The Senate may then take evidence of what occurred 
 at the polls, thereby determine who were lawfully elected, recognize the body so organized, and thereby 
 give the persons it finds so elected the seats to which neither credentials nor judgment of the House have 
 ever given a title. 
 
 The report in Sykes v. Spencer, decided by the Senate in 1873, is relied upon as supporting an 
 opinion contrary to that which we have stated. If so, we dissent from it. But it is to be remarked that 
 in that case, which was upon an election held less than seven years after the close of the war, the doctrine 
 oi the report is not relied upon in the debate. It is further to be observed that that case is to be distin- 
 guished from this by the fact that there it was conceded that the persons who had not certificates were 
 duly elected. The distinction from the general rule is expressly put by Mr. Carpenter, in his report, 
 upon this concession. When the fact there conceded is, as in the present case, disputed, and to be proved, 
 we think there are but two ways in which it can be proved to the Senate. One is the possession of 
 lawful credentials. The other is the judgment of the House itself, not only the final, but the sole judge 
 of the elections, qualifications, and returns of its Members. 
 
 Mr. Gray, speaking for the minority, said they did not dissent frona the propo- 
 sition laid down by the majority, and did not found their case on the principles 
 enunciated in the case of Sykes v. Spencer, which he declined to indorse. The 
 ruling was considerably discussed during this debate.' 
 
 Third. Is there evidence which warrants the Senate in finding that the persons who had the creden- 
 tials were not, in fact, duly elected? 
 
 The majority and minority disagreed sharply as to which set of contestants 
 were actually elected, and this question was discussed at length in the report and on 
 
 ' Record, pp. 2910, 2918, 3188.
 
 § 358 ELECTORATES INCAPACITATED GENERALLY. 285 
 
 the floor. The majority found that the persons bearing the State canvassing-board 
 credentials had in fact been elected. 
 
 On another point the majoritj- concluded: 
 
 The suggestion has been made that, to elect a Senator, there must be in existence a legislature 
 exercising, or at least capable of exercising, the law-making function; and that when this function is 
 interrupted or abdicated, or has never been set in motion because either house refuses to recognize and 
 act in concert with the other, or because the governor refuses to treat either as possessed of legislative 
 authority, there is, in fact, no legislature in the constitutional sense, and therefore no body competent 
 to appoint a Senator. In Montana the governor declined to recognize the Iron Hall house, and the 
 senate, which was evenly divided politically, did not recognize either Iron Hall or Court-House. 
 
 The suggestion is ingenious, but we do not think it will bear examination. The governor is no 
 part of the law-making power. The legislature may pass laws, if he do not assent to them. He has 
 only the power to require the legislature to reconsider a bill or resolve they have once passed. On 
 such reconsideration a two-thirds vote, instead of a bare majority, is essential to the enactment. (Con- 
 stitution of Montana, art. 5, sec. 29.) 
 
 It would be a strange condition of things if the governor of a State, or the President of the United 
 States, could, by a simple refusal of recognition, suspend all legislative functions, so that bills presented 
 to him should not become laws through his inaction, or be passed over his veto. Such a theory, which 
 rests wholly on implication, would, if adopted, neutralize plain provisions of the Constitution. 
 
 Neither house of the legislature, when once lawfully constituted, can abandon its own authority. 
 Much less can it take away the authority of the other. Neither House of Congress can even adjourn 
 for more than three days without the consent of the other. A like provision is in the constitution of 
 Montana. This theory enables one house, or the executive, to overthrow at once all the constitutional 
 securities for the preser%-ation of the legislative power. It is utterly opposed to the act of Congress 
 prescribing the manner of the election of Senators (Revised Statutes, sees. 14 to 19.) If no concurrent 
 election be had, "the members of the two houses shall convene in joint assembly." 
 
 This is intended to put it out of the power of a majority of either house to prevent a choice of Senator. 
 This provision we think clearly constitutional. It is in accordance with the legislative usage in the 
 matter of electing officers whose choice may be prevented altogether if two distinct bodies must concur 
 to produce a valid result. 
 
 In conclusion, the majority recommended these resolutions: 
 
 Resolved, That William A. Clark is not entitled to be admitted to a seat in the Senate from the State 
 of Montana. 
 
 Resolved, That Martin Maginnis is not entitled to be admitted to a seat in the Senate from the State 
 of Montana. 
 
 Resolved, That Wilbur F. Sanders is entitled, upon the merits of the case, to be admitted to a seat 
 in the Senate from the State of Montana. 
 
 Resolved, That Thomas C. Power is entitled, upon the merits of the case, to be admitted to a seat 
 in the Senate from the State of Montana. 
 
 The report was debated at length on April 2, 3, 7-11, 15, and 16.' On the 
 latter day^ a motion to recommit was disagreed to — yeas 26, nays 32. 
 
 Then the question recurring on agreeing to the first two resolutions reported 
 by the committee, Mr. Gray moved a substitute declaring Messrs. Sanders and 
 Power not elected. This amendment was disagreed to — yeas 26, nays 32. 
 
 The two first resolutions of the committee were then agreed to — yeas 38, 
 nays 19. 
 
 Then the question recurred on the two last resolutions of the committee, declar- 
 
 • Record, pp. 2906, 2908, 3101, 3136, 3188, 3228, 3279, 3378, .3419. 
 2 Record, pp. 3433-3435.
 
 286 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 359 
 
 ing Messrs. Sanders and Power entitled to the seats. A substitute amendment 
 declaring that in the judgment of the Senate there had been no choice was disagreed 
 to — yeas 23, nays 30. 
 
 Then the resolutions were agreed to — yeas 32, nays 26. 
 
 Messrs. Sanders and Power thereupon appeared and were sworn. 
 
 359. The Senate election cases of John T. Morgan, of Alabama, and 
 L. Q. C. Lamar, of Mississippi, in the Forty-fifth Congress. 
 
 The Senate gave immediate prima facie effect to perfect credentials 
 certifying election by a legally organized legislature, although it was 
 objected that popular will had been subverted in electing the legislators. 
 
 On March 5, 1877,' at the time of swearing in Senators-elect, Mr. George E. 
 Spencer, of Alabama, objected to the administration of the oath to Mr. John T. Mor- 
 gan, of Alabama. 
 
 On March 7 ' Mr. Thomas F. Bayard, of Delaware, offered this resolution: 
 
 Resolved, That the credentials of John T. Morgan, Senator-elect from the State of Alabama, be taken 
 from the table and that he be sworn. 
 
 On March 8 ' Mr. Spencer proposed an amendment providing that the credentials 
 be referred to a committee before the swearing in of Mr. Morgan. 
 
 It did not appear that there was any question as to the credentials, as to the title 
 of the governor who signed them, or as to the fact that the legislature which elected 
 him was the only legislature of the State. But it was urged that in the election of 
 the State government the will of the people had been subverted by violence, and 
 therefore that the action of the legislature was void. 
 
 After debate Mr. Spencer's amendment was rejected, the resolution was agreed 
 to, and Mr. Morgan took the oath. 
 
 360. On March 3, 1877,^ in the Senate, the credentials of L. Q. C. Lamar, of 
 Mississippi, for the six years commencing March 4, 1877, were presented. 
 
 On March 5,' at the time of swearing in Senators-elect, Mr. George E. Spencer, of 
 Alabama, objected to the administration of the oath to Mr. Lamer because of condi- 
 tions set forth in the report of the Committee on Privileges and Elections, who had 
 investigated the recent election in Mississippi. 
 
 On March 6,^ Mr. William A. Wallace, of Pennsylvania, offered the following: 
 
 Resolved, That the credentials of L. Q. C. Lamar, Senator-elect from the State of Mississippi, be taken 
 from the table and that he be sworn. 
 
 Mr. Spencer moved to amend the resolution by a substitute referring the creden- 
 tials to the Committee on Privileges and Elections. 
 
 In the debate Mr. Spencer urged that the State government of Mississippi, as 
 shown by the report of the Senate's committee, was a fraud and an usurpation. The 
 legislature had been chosen in an election wherein violence and intimidation pre- 
 
 ' Special session of Senate, Forty-fifth Congress, Record, p. 2. 
 
 ^ Record, p. 24. 
 
 3 Record, pp. 24-31. 
 
 * Second session Forty-fourth Congress, Record, p. 2147. 
 
 * Record, pp. 5-15.
 
 § 360 ELECTORATES INCAPACITATED GENERALLY. 287 
 
 vailed. In his view a mob could not organize a State government sufficient to make 
 out a prima facie case. 
 
 It appeared that Air. Lamar's credentials were issued by a governor whose title 
 was not disputed by any other claimant and by a legislature that was unquestioned 
 as the only legislature of the State. It was urged that the objections raised went 
 to the fact of election, and should not prevent the swearing in of Mr. Lamar on his 
 undisputed prima facie showing. 
 
 There was little objection to this claim; but Mr. Oliver P. Morton, of Indiana, 
 called attention to the Pinchback case ot Louisiana, and declared that it was incon- 
 sistent to seat Mr. Lamar and deny a seat to Mr. Pinchback, who bore credentials 
 from the only recognized governor of Louisiana of an election by the recognized 
 and existing legislature of the State. In opposition to this view it was urged, 
 especially by Mr. Henry L. Dawes, of Massachusetts, that a rival claimant also 
 presented credentials from a rival governor of Louisiana, and that Mr. Pinchback's 
 case was thus so complicated that both claimants should wait until their claims 
 could be examined. 
 
 Mr. Bainbridge Wadleigh declared that the question which arose was whether 
 the voice which came here was really the voice of Mississippi. An usurpation should 
 not have a voice on the floor of the Senate. He favored an examination before 
 admitting Mr. Lamar. 
 
 The question recurring on the amendment proposed by Mr. Spencer, there 
 appeared 1 yea (Mr. Wadleigh) and 58 nays. 
 
 Then the resolution proposed by Mr. Wallace was agreed to — yeas 57, nays 1 
 (Mr. Wadleigh). 
 
 Mr. Lamar then appeared and took the oath.
 
 Chapter X. 
 ELECTORATES DISTRACTED BY CIVIL WAR. 
 
 1. Joint rale exclnding persons elected in insnrrectionary States. Section 361. 
 
 2. Informal elections in districts nnder military duress. Sections 362-381. 
 
 3. Principles dednced from Senate decisions as to States nnder military dnress. 
 
 Sections 382-385. 
 
 361, Persons bearing credentials regular in form, but coining from 
 communities disorganized by civil war, have been excluded until Con- 
 gress should determine the status of the constituencies. 
 
 In the days of reconstruction the two Houses, by joint rule, excluded 
 Members-elect with credentials in due form, some entirely, others until 
 the States were declared by law entitled to representation. 
 
 An instance wherein credentials of persons claiming to be Members- 
 elect were referred to a joint committee of the two Houses. 
 
 Credentials regular in form have been presented as a matter of privi- 
 lege, although the status of the constituency was, by reason of civil war, 
 in doubt. 
 
 On December 12, 1865,' Mr. Henry J. Raymond, of New York, as a question of 
 privilege, presented the credentials of the Representatives from the State of Ten- 
 nessee, signed by the governor, sealed with the seal of the State, and otherwise 
 regular in form. 
 
 Mr. Thaddeus Stevens, of Pennsylvania, raised the question that, as the State 
 of Tennessee was not known to the House or to Congress, no question of privilege 
 was presented. 
 
 The Speaker - overruled the point of order, saying that the usages of the House 
 since the rebellion began showed that a claimant to a seat, with papers prima facie 
 indicating his election, was entitled, as a question of privilege, to have them pre- 
 sented. 
 
 A question then arose as to the reference of the credentials, it not being pro- 
 posed that the oath should be administered on the prima facie showing. 
 
 Finally, after debate, the credentials were referred to the newly constituted 
 
 ' First session Thirty-ninth Congress, Journal, pp. 51, 52; Globe, pp. 31-33. 
 ^ Schuyler Colfax, of Indiana, Speaker. 
 
 288 
 
 I
 
 § 361 ELECTORATES DISTRACTED BY CIVIL WAR. 289 
 
 Joint Committee on Reconstruction, by a vote of yeas 125, nays 42. Tliis committee 
 had been constituted by resolution of the two Houses, which provided that until 
 the conmiittee should have investigated and reported on the condition of the so- 
 called Confederate States, no Member should be received into either House from 
 any of these States, and that all papers relating to such representation should be 
 referred to the joint committee.' On December 14 ^ the House reenforced the pro- 
 visions of the concurrent resolution by agreeing to the following, by a vote of yeas 
 107, nays 56: 
 
 Resolved, That aU papers which may be oSered relative to the representation of the so-called Con- 
 federate States of America, or either of them, shall be referred to the joint committee of fifteen without 
 debate, and no Members shall be admitted from either of said so-called States until Congress shall declare 
 such States, or either of them, entitled to representation. 
 
 During consideration of the resolution it was objected that imder the Consti- 
 tution and laws the Speaker was required to administer the oath to Representatives 
 of States as they should appear. 
 
 Later, on February 20, 1866,' the House passed a concurrent resolution declar- 
 ing that "no Senator or Representative shall be admitted into either branch of 
 Congress from any of said [insurrectionary] States tintil Congress shall have declared 
 sucli State entitled to sucii representation." 
 
 This resolution was later agreed to by the Senate.* 
 
 At various times between the adoption of these resolutions and June 4, 1866,^ 
 the credentials of various gentlemen from the insurrectionary States were presented 
 and referred under the rule. 
 
 The report of the Joint Committee on Reconstruction ° showed that Tennessee 
 had a republican form of government, and an act of Congress was passed at this 
 session and approved July 24, 1866, "restoring Tennessee to her relations to the 
 Union" and declaring her "again entitled to be represented by Senators and 
 Representatives in Congress." ' Accordingly, on the day of the approval of the 
 act, and later, the Members-elect from Tennessee appeared and were sworn.* 
 
 Gentlemen bringing credentials from other insurrectionary States were not 
 admitted during this Congress. 
 
 The report of the Joint Committee on Reconstruction,' made at this session 
 of Congress, took the ground that Congress could not "be expected to recognize 
 as valid the election of Representatives from disorganized communities " without 
 first providing constitutional or other guarantees. 
 
 'Journal, p. 10. 
 
 -Journal, pp. 71, 72; Globe, p. 61. 
 
 2 Journal, pp. 300-315; Globe, pp. 943-950. 
 
 * Journal, p. 353; Globe, p. 1132. 
 
 5 Journal, pp. 88, 96, 98, 111, 135, 145, 245, 332, 792, 838. 
 
 'First session Thirty-ninth Congress, Report No. 30. 
 
 n4Stat. L., p. 364. 
 
 "Journal, p. 1110. 
 
 'House Report No. 30, p. xviii. 
 
 5994— VOL 1—07 19
 
 290 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 362 
 
 36S. The North Carolina election case of Charles Henry Foster in 
 the Thirty-seventh Congress. 
 
 The House declined to seat a claimant chosen by a few people at an 
 election wholly informal because of civil war. 
 
 The House declined to honor credentials regular in form, but refer- 
 ring to a constituency notoriously incapacitated by civil war. 
 
 Instance of a claim for a seat brought before the House by petition. 
 
 On July 13, 1861/ the petition of Charles Henry Foster, claiming to have been 
 elected Representative from the First Congressional district of North Carolina, was 
 presented and referred to the Committee on Elections. Mr. Foster apparently did 
 not seek at this time to establish a prima facie right to the seat. 
 
 On December 2, 1861,'' at the beginning of the next session (the regular long 
 session), credentials in regular form were presented in behalf of Mr. Foster. These 
 credentials referred to another election and had no reference to the petition of the 
 preceding session. It was urged in behalf of Mr. Foster that a provisional govern- 
 ment had been formed in North Carolina, that proclamation of the governor had 
 been made calling an election, which had been duly held, and that Mr. Foster now 
 presented the certificate of the governor under the broad seal of the State entitling 
 him to the seat from the Second district. 
 
 Objection was made to the admission of Mr. Foster to the seat, and the papers 
 were referred to the Committee on Elections, who had not reported on the memorial 
 presented at the first session. 
 
 On December 18 ^ the committee reported that Mr. Foster was not entitled to 
 a seat either from the First or Second districts of North Carolina, his claim being 
 founded upon imposition. The House agreed to this report without debate or 
 division. 
 
 On March 6, 1862,* a memorial of 68 loyal electors of the Second district was 
 presented asking the admission of Mr. Foster to the House. This memorial was 
 referred to the Committee on Elections, who reported on June 16.^ 
 
 In this report the committee say: 
 
 This is the fourth time that Mr. Foster has claimed to have been elected a Representative to the 
 Thirty-seventh Congress from the State of North Carolina — twice from the First and twice from the 
 Second district. On the 18th day of December last the House adopted without division the follrwing 
 resolution : 
 
 "Resolved, That Charles Henry Foster is not entitled to a seat in this House as a Representative in 
 the Thirty-seventh Congress, either from the First or from the Second district of North Carolina." 
 
 The present claim is based entirely upon proceedings which have transpired since that date. Those 
 proceedings consist of what purports to be a poll list of 81 votes cast for Mr. Foster at Chickamacomico 
 precinct on the 16th February last, supported by a copy of a paper purporting to be signed by 30 citizens 
 of Carteret County, "ratifying and approving" said election, and a copy of a resolution of like purport, 
 supposed to have been adopted by some citizens — how many it is not known — of Craven County. The 
 other voting presented to the committee were proceedings upon which a former election was claimed, 
 which claim was unanimously rejected by the House. 
 
 'First session Thirty-seventh Congress, Journal, p. 74; Globe, p. 115. 
 ^Second session Thirty-seventh Congress, Journal, p. 7; Globe, p. 3. 
 3 Journal, p. 88; Globe, p. 132. 
 
 * Journal, p. 413; Globe, p. 1103. 
 
 * House Report, No. 118.
 
 § 363 ELECTOBATES DISTRACTED BY CIVIL WAR, 291 
 
 The Second district of North Carolina is composed of the counties of Wayne, Edgecomb, Green, 
 Pitt, Lenoir, Jones, Onslow, Carteret, Craven, Beaufort, and Hyde, and usually casts about 9,000 votes. 
 The regular day of election was the first Thursday in August, 1861. There was no election for Members 
 of Congress held on that day, because the whole State was at that time in the armed occupation of rebels. 
 
 The committee further say that since then some portions have been reclaimed 
 and the authority of the Government asserted. But the claimant admitted that 
 voting in any other precinct than that where the election occurred was impossible. 
 The voting that did occur was without the slightest authority of law. No election 
 was called, no writ of election issued. There was no governor of the State, provi- 
 sional, military, or of any other character, except the Confederate governor. 
 
 The committee also found that the memorial of citizens of Carteret County 
 was of an anomalous character, unworthy- of effect as a legal document. 
 
 Therefore the committee recommended that Mr. Foster be considered not 
 entitled to the seat. The House concurred in tliis report without division.' 
 
 363. The Virginia election cases of Joseph Segar, in the Thirty- 
 seventh Congress. 
 
 The House refused to seat a claimant chosen by a mere fraction of 
 the people, at an election informally called and held, in a district under 
 duress of armed enemies. 
 
 The House declined to give prima facie title to the bearer of informal 
 credentials referring to a constituency notoriously paralyzed by civil war. 
 
 A legislature being in existence, a constitutional convention may not 
 fix the times, etc., of elections of Representatives. 
 
 On December 2, 1861,^ Mr. Joseph Segar appeared with credentials in the form 
 of a certificate of the vote cast, attested by a certificate from the provost marshal 
 of the Federal camp, Hamilton, purporting to give him title to the seat from the 
 First Congressional district of Virginia. 
 
 The House had admitted to seats Members elected under authority of the 
 provisional government of Virginia, but in the case of Mr. Segar there arose a 
 question as to what portion of the voters of the district had participated in that 
 election. After debate the House declined to allow Mr. Segar the prima facie title 
 to the seat, and referred his credentials to the Committee on Elections. 
 
 On January 20, 1862,^ the committee made its report, recommending that Mr. 
 Segar be not admitted to the seat. In this case, as in the case of Mr. Beach, the 
 election was held under authority of a proclamation of Governor Pierpont. The 
 committee state the facts as follows: 
 
 A convention assembled at Wheeling, in the State of Virginia, on the 11th of June last, in which 
 were represented, it is believed, thirty-nine counties of the State, situate in what is known as Western 
 Virginia. This convention adopted on the 19th of June "an ordinance for the reorganization of the 
 State government," after having declared that, because of the treasonable practices and purposes of the 
 State convention lately held in Richmond, and of the executive of the State in connection therewith, 
 "the offices of all who adhere to the said convention and executive, whether legislative, executive, or 
 judicial, are vacated." By the same ordinance a legislature, or general assembly, for the State of 
 Virginia was created, and required to "assemble in the city of Wheeling on the 1st day of July, and 
 
 'Journal, p. 912; Globe, pp. 2879, 2880. 
 
 'Second session Thirty-seventh Congress, Journal, p. 7; Globe, p. 3. 
 
 'House Report No. 12; 1 Bartlett, pp. 415, 426; Rowell's Digest, pp. 179, 181.
 
 292 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 363 
 
 proceed to organize themselves as prescribed by existing laws in their respective branches." Said 
 convention subsequently elected a governor for the State of Virginia, who still holds the office thus 
 conferred upon him. 
 
 The legislature thus created assembled as required and passed many enactments for the whole 
 State of Virginia, elected two United States Senators, who were admitted to seats in the Senate, and 
 assumed all the functions of the general assembly of Virginia under its preexisting constitution and 
 laws. The convention which created and set in motion this new government did not, however, dis- 
 solve itself upon the assumption of the several functions of government by the executive officers and 
 general assembly which, in the exercise of provisional powers, it had itself brought into being, but con- 
 tinued to hold its meeting after the assembling of the legislature and to share with it in ordinary IcgLs- 
 lation for the whole State. The legislature was in session till the 24th of July, and how much longer 
 the committee are not informed. The convention was in session on the 20th of August, and on that 
 day passed an ordinance providing for the election of Representatives in Congress in each district where 
 from any cause such election was not held on the fourth Thursday in May last, the day provided by 
 law for such election, and also "in the Eleventh district, where a vacancy now exists, an election for 
 such Representative shall be held on the fourth Tuesday in October next, which shall be conducted 
 and the result ascertained, declared and certified in the manner directed in the second edition of the 
 Code of Virginia" 
 
 In accordance with the proclamation of Governor Pierpont, an election was 
 held at Hampton, in Elizabeth County, on October 24, 1861, at which 25 votes 
 were cast for Mr. Segar. A certificate of these votes, signed by the election officers 
 and certified by the provost-marshal of Camp Hamilton, were the only credentials 
 presented by Mr. Segar on December 2. On a subsequent day of the session he 
 presented credentials signed by the governor ami attested under seal of the Com- 
 monwealth. 
 
 There was also presented the proceedings of a meeting on Chincoteague 
 Island, at which 136 citizens expressed, on December 10, a preference for Mr. Segar, 
 but Mr. Segar did not rely on this. He based his claim on the 25 votes cast at 
 Hampton, clauning that his claim was strictly legal. 
 
 The committee say: 
 
 The committee have been led to investigate this claim of legality. The whole authority for this 
 election is the ordinance of the Wheeling convention passed August 20. Assuming that the proceed- 
 ings of that convention, and of the legislature and executive created by it, have ripened into a State 
 government, legal in all respects, still the question arises. Was it one of the functions of that con- 
 vention to provide for the time, place, and manner of electing Representatives in Congress, especially 
 after the legislature had assembled? The purpose of that convention was the creation of a new State 
 government. The only l)asis upon which it rests is necessity. 
 
 A new government must begin somewhere, and there must be somebody to make it. As necessity 
 was the foundation, so also it was the limit of the power called into being for the sole purpose of inaugu- 
 rating a new government. It could do anything necessary to carry out that purpose, and when that was 
 done it could do no more. Its functions ceased the moment the new government took on form and life. 
 The two can not, in the nature of things, exist and move pari passu. Now, long before this ordinance 
 had passed the convention there was in existence a governor and a legislature, having all the powers 
 that a governor and legislature could have in Virginia— that is, all the powers which the constitution 
 of Virginia clothes a governor and legislature with not in conflict with the Constitution of the United 
 States. Now, this latter instrument provides (art. 1, sec. 4) that "the times, places, and manner of 
 holding elections for Senators and Representatives shall be prescribed in each State by the legislature 
 thereof." It is a legislative act. It is a law. * * * But this time and manner were not fixed in 
 the organic act nor by the legislature, but by the convention assuming legislative functions in the 
 presence of the legislature itself. 
 
 Again, the ordinance itself proposes to conform this election to the Code of Virginia. It "shall
 
 § 363 ELECTOKATES DISTRACTED BY CIVIL WAR. 293 
 
 be conducted and the result ascertained, declared, and certified in the manner directed in the second 
 edition of the Code of Virginia." Has the election under consideration been conducted in all respects 
 according to the requirements of the Virginia Code? Title 3, chapter 7, section 11, of that code 
 provides for elections to fill vacancies in Congress and enacts that they "shall be superintended 
 and held by the same officers, under the same penalties, and subject to the same regulations as are 
 prescribed for the general elections." Section 12 of the same chapter provides that "a writ of election 
 shall be directed to the sheriff or sergeant of the county or corporation for ■which the election is to be 
 held; or if the election is to be held for an election district, or to fill a vacancy in the Senate or in 
 Congress, to the several sheriffs and sergeants of the counties and corporations which, or any parts of 
 which, are included in the district. It shall prescribe the day of election (to be the same throughout 
 the district), and may fix a day on which the officers conducting the election are to meet to make 
 returns, not later than that fixed by law in the case of a regular election." 
 
 The committee further go on to show that in this case there was nothing which 
 answered to a writ of election; but that the governor in his proclamation simply 
 "entreats the loyal voters," and addressed it not to the sheriffs, but "to the people 
 of Virginia." 
 
 In this case it was admitted that there was no election in any other place 
 than Hampton, as notice could not pass beyond the enemy's lines to other parts 
 of the district. Moreover, the notice was apparently brought to Hampton through 
 the medium of a newspaper publication and a private letter. 
 
 The committee concluded that the claim of Mr. Segar could not be maintained 
 if it rested on the plea of a strict conformity with all the provisions of law. 
 
 But the conamittee do not rest their conclusions on so narrow a basis. They 
 sa}^: 
 
 If the Union voters of the district had had an opportunity to chose a Representative — if there had 
 been no armed occupation of the district by rebels so that polls could have been opened at the various 
 voting places in the district, and all who desired could have deposited their ballots, and had done so 
 in conformity with the provisions of law, so far as the disturbed and abnormal condition of things would 
 permit, the committee would have sought some way to give effect to such election. But enough of the 
 facts surrounding this election have already been stated to show that such is not the case. There was 
 but one single poll in the whole district opened, and but 25 votes cast. The reason why there were no 
 other polls opened or more votes cast can not be better expressed than by the tlaree freeholders themselves 
 who certify to this election. This is their language: 
 
 "And we do further certify that there was no poll opened at any other precinct in said county, 
 and that so far as we can learn and confidently believe there was no poll opened or election held for 
 Member of Congress in any other county or city or town of said First Congressional district, owing to the 
 fact that all the other counties and election precincts of said Congressional district were, on the 24th 
 day of October last, within the lines and under the influence and control of the seceding and rebel 
 States." 
 
 This state of things is no fault of the memorialist or the Union voters of the district, but it did 
 exist on the day of this election. How can it be made to appear, then, that the memorialist is the 
 choice of the district, or that if an opportunity had existed an overwhelming majority of votes would 
 not have been cast against him? In what sense can it be said that those who did not vote are to be 
 presumed to acquiesce, when they neither had the opportunity to vote nor the knowledge that voting 
 was going on? Acquiescence presumes liberty to protest. In this instance that liberty did not exist. 
 
 On February 10 and 11,^ the report was debated at length in the House. 
 
 On February 11^ a motion was made to substitute for the proposition of the 
 
 ' Globe, pp. 727, 751. 
 
 2 Journal, pp. 295, 296; Globe, pp. 759, 760
 
 294 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 364 
 
 committee a declaration that Mr. Segar was entitled to the seat. This was decided 
 in the negative — yeas 40, nays 85. 
 
 Then the resolution of the committee declaring Mr. Segar not entitled to the 
 seat was agreed to without division. 
 
 364. The Virginia election case of Joseph Segar, continued. 
 
 An instance wherein the House recognized an election legal in form, 
 but participated in by a small fraction of the voters, the district being 
 disturbed by civil war. 
 
 The House declined to give prima facie effect to regular credentials, 
 having historic knowledge that the district was incapacitated by civil 
 war from holding a regular election. 
 
 Instance wherein a committee unable to agree reported this fact to 
 the House, and it became a basis for action. 
 
 On March 24, 1862,^ the credentials of Mr. Segar were presented again, he 
 claiming to have been elected at another election held March 15, 1862. 
 
 It was claimed and not disputed that the certificate presented was in the 
 form required by law, but it was objected that the House knew from the report of 
 the committee on the state of affairs in Virginia that no election could have been 
 held in that State on March 15, 1862. 
 
 Then, without division, the credentials were referred to the Committee on 
 Electioiis. 
 
 On April 14^ the committee reported the following facts: 
 
 That those credentials, a copy of which is annexed, consist of a certificate signed by "William 
 Mears, conductor at the court-house at Northampton," "Michael H. Higgins, conductor at the court- 
 house of Accomac," and "John O. Evans, conductor at the court-house of Elizabeth City," dated the 
 22d day of March last, certifying that at an election held on the 15th day of said March in the several 
 counties composing said district the claimant was duly elected to represent the same in the Congress 
 of the United States. Mr. Segar also presented to the committee during the hearing a proclamation by 
 Governor Pierpoint to the same effect, of date the 26th day of March last, a copy of which is also annexed. 
 The First Congressional district is composed of seventeen counties, viz, Middlesex, Westmoreland, 
 Richmond, Essex, Northumberland, King and Queen, Lancaster, Gloucester, James City, the City of 
 Williamsburg, New Kent, York, Warwick, Northampton, Accomac, and Elizabeth City. Governor 
 Pierpoint issued writs of election in due form of law on the 24th day of February, 1862, directed to the 
 sheriffs of the several counties composing this district, requiring them to hold an election for Repre- 
 sentative to this Congress on said 15th day of March. The claimant stated to the committee that he 
 himself took these writs of election to the sheriffs of the counties of Accomac, Northampton, and Eliz- 
 abeth City, and that in one of these counties he saw the sheriff post up notice of the election at the 
 several election precincts more than ten days before the day of the election, and in the others he saw the 
 notices after they were put up, but whether they were up the time required by law he does not know. 
 But no writs of election reached the sheriffs in the other fourteen counties, nor was any notice of election 
 given, or any election held, at any precinct in any of the other fourteen counties in the district, for the 
 reason that all the other counties were at the time of the election, and had been for a long time, in posses- 
 sion of the rebel army, and the rebel authorities had proclaimed martial law over them. For the same 
 reason no election was held in Elizabeth City County, except at one precinct, Hampton. Notice to 
 the sheriffs of these counties, to the people thereof, the opening of a poll or the casting of a vote at any 
 precinct in any one of them, were all impossibilities. 
 
 'Journal, p. 472; Globe, p. 1339. ^ House Report, No. 70; 1 Bartlett, p. 415.
 
 § 364 ELECTORATES DISTRACTED BY CIVIL WAR. 295 
 
 There were cast at this election in the several voting precincts of Accomac and Northampton 
 counties, and at Hampton, in Elizabeth City County, aa appears by the several annexed certificates 
 from commissioners in said counties, in all 1,018 votes. 
 
 The committee further foimd that Mr. Segar had 559 of the total, Arthur Watson 
 438, and all others 21. 
 
 The vote of the whole district for governor at the May election of 1859 was 
 7,986, and the population of the whole district in 1860 was 122,017. 
 
 In all the coimties where the election in question was held there were 32,216 
 inhabitants. This included the county of Elizabeth City, in which only one poll was 
 opened. 
 
 The counties occupied by the hostile army at the time the election was held and 
 under martial law had 89,001 population. The committee say: 
 
 The committee have no means of knowing, other than may be inferred from the foregoing figures, 
 what portion of the 7,986 electors, who cast their votes in that district for governor, reside in the three 
 counties where this election was held, or how many of them resided at the time in the fourteen counties 
 where it was impossible to hold any election. 
 
 Upon these facts the committee were unable to agree upon any recommendation to the House. They 
 therefore ask to be discharged from further consideration of the subject, and report the following 
 resolution: 
 
 Resolved, That the Committee of Elections, to whom were referred the credentials of .Joseph Segar, 
 claiming a seat in this House as a Representative from the First district in Virginia, be discharged from 
 the further consideration of the subject. 
 
 On May 6 ' the question came before the House, and Mr. Henry L. Dawes, of 
 Massachusetts, chairman of the committee, in presenting the case, said : 
 
 The difficulty which the Committee on Elections encountered was this; They have laid down a 
 principle heretofore, and the House has acted upon it in several cases which have been brought before the 
 House, that if the voters of a district had an opportunity to vote, if there was no restraint upon them so 
 that they could vote, he who had the highest number of votes is entitled to a seat, whether the votes be 
 few or whether they be many, and the question is whether this case came within that rule. 
 
 Here were only three counties out of seventeen, and although they are large counties, they contain a 
 little over 30,000 out of the 122,000 of all the inhabitants, and there were polled only one-eighth of all 
 the votes. Whether it could be said that in the other fourteen counties, which were in the occupation of 
 the rebel armies, the voters could not go to the polls and express their opinion at all, or not, or whether it 
 could be said that the voters of these three counties, numbering about 1,000, expressed the wish or 
 desire of the voters in the other counties so nearly and so fairly that, under the present state of things in 
 Virginia, it is right or proper to admit this man to a seat, is a question which the committee felt disposed 
 to bring before the House to let them pass upon it. 
 
 * * * All that the committee desire is that the House shall say when that state of things [the 
 restoration of order in Virginia], all things considered, shall have been so nearly approached as that it 
 shall be safe and proper to admit as a Representative upon this floor, from the First district of Virginia, 
 or from any other district situated as that district is, a man who has received but little more than one-half 
 of one-eighth of the votes of the whole district, and that, too, under circumstances such that the com- 
 mittee was not clear to say that the others could be said, in law or in fact, to have been free, or had the 
 opportunity to vote if they had seen fit. 
 
 In the course of the debate the point was made, with effect, that all the pro- 
 visions of law were followed in holding the election, although after the elections it had 
 been impossible wholly to comply with the required forms. And after the subject 
 had been referred to the Committee on Elections Mr. Segar had presented credentials 
 
 ' Globe, pp. 1971, 1972.
 
 296 PRECEDENTS OF THE HOUSE OF REPKESENTATIVES. § 365 
 
 from Governor Pierpont, of Virginia. It was urged that as all the departments of 
 the National Government had recognized the government of Governor Pierpont, that 
 certificate had exactly the same force as that of any other Representative on the floor 
 from any State. It constituted prima facie evidence, and the House was not called 
 on to investigate critically the merits of the case. 
 
 The House, by a vote of yeas 71, nays 47, substituted for the resolution of the 
 committee a resolution that Mr. Segar be admitted to a seat as a Representative from 
 the First district of Virginia.^ 
 
 Mr. Segar then appeared and qualified. 
 
 365. The Tennessee election case of Andrew J. Clements in the Thirty- 
 seventh Congress. 
 
 The House seated a loyal claimant voted for at an election called on 
 the legal day, but by the governor of a State in secession. 
 
 Instance of an election proven by testimony of participants, the re- 
 turning officers serving a secession government and making no return. 
 
 The House seated a claimant who had received a third of the votes of 
 a district, the remainder being cast for candidates for a secessionist Con- 
 gress. 
 
 The House declined to give prima facie effect to informal papers re- 
 ferring to an election in a district known to be under duress of civil war. 
 
 On January 13, 1862,^ Mr. Henry L. Dawes, of Massachusetts, from the Com- 
 mittee of Elections, reported in the case of Andrew J. Clements, who claimed to 
 have been elected in the Fourth district of Tennessee. Mr. Clements had first 
 appeared in the House on December 3, 1861,^ and a motion had been made to allow 
 him to take a seat on his prima facie right; but the House decided that his papers 
 should be referred to the Committee of Elections before he should be allowed to 
 take his seat. 
 
 The report states sufficiently the facts. Previous to the day for the election 
 of Congressmen, the first Thursday of August, 1861, the State of Tennessee had 
 perfected its acts of secession, and the governor of the State had ordered an election 
 for the choice of delegates to the provisional congress of the Confederacy. The day 
 was the same as that fixed by the constitution and laws of the State for the election 
 of Representatives to the Congress of the United States, the first Thursday of August. 
 
 In four of the ten districts of the State the Union men disregarded the acts of 
 secession and cast their ballots for Representatives to the Congress of the United 
 States. One of the districts was that which Mr. Clements sought to represent. 
 The report says further of him : 
 
 He brings no certificate from the governor of Tennessee ; but the refusal of the governor of Tennessee 
 to grant a certificate of election to one entitled to it can not prejudice his right to it. (Richards's case, 
 Hall & Clark, 95.) It may and has put him to the trouble of substantiating the fact of his election by 
 
 ' Journal, p. 649; Globe, p. 1872. 
 
 - Second session Thirty-seventh Clongre.ss, House Report No. 9; 1 Bartlett, p. 366; Rowell'a Digest, 
 p. 174. 
 
 ^ Globe, p. 6. Mr. Horace Maynard, of Tennessee, on December 2, 1861, had been sworn in on the 
 presentation of the certificates of the several counties in his district. Mr. Clements did not have the 
 same prima facie evidence.
 
 § 366 ELECTORATES DISTRACTED BY CIVIL WAR. 297 
 
 other evidence before he can take his seat. The memorialist has presented the proper certificate of the 
 sheriff of one county (Macon County) that he received in that county 433 votes. The sheriffs of the 
 other counties in the district failed or refused to make returns of the votes cast for him in their respective 
 counties, being themselves either open rebels or in sympathy with the rebellion. But the statutes of 
 Tennessee themselves, as well as the precedents of Congress, have provided for this emergency by enact- 
 ing that "if the judges fail to return the poll books or list of votes, or copies of them certified as aforesaid, 
 the same may be proved by other creditable testimony, and received as evidence in any case arising 
 out of said election." (Code of Term., sec. 870.) In accordance with this provision the memorialist pre- 
 sented evidence before the committee to satisfy them that he had received, in addition to the 433 returned 
 by the sheriff of Macon County, votes in each of the other counties comprising the district, except 
 Warren, amounting in the aggregate to more than 1,500 votes; making in all about 2,000 votes. The 
 proof of this has been exceedingly difficult, because of the fact that the indignation of the secessionists 
 against the memorialist for permitting himself to be a candidate rose to such a pitch immediately after 
 the election that he was obliged to flee from the State to escape assassination, and has not been able to 
 return to it since. But he has furnished from the volunteers, now in the service of their country in 
 Kentucky, who were his constituents and voted for him in Tennessee before leaving their State for the 
 war, and from other testimony, evidence which has satisfied the committee of the fact. The committee 
 are also satisfied that on the day of election there was an armed rebel force present in the district pre- 
 venting or restraining the voters from the exercise of the elective franchise, and that though a violent 
 and bitter public sentiment existed, calculated to overawe and intimidate, yet the rebel forces had not 
 up to that time so taken possession of the district as to prevent such voters as chose so to do to deposit 
 their votes for a Representative in this Congress. The ordinary vote of the district is about 6,000; and 
 then there were at the same time two candidates running for the Confederate congi-ess, but no other 
 candidate except the memorialist for the Congress of the United States. 
 
 In conclusion, the committee, upon the whole evidence, find that on the day of election no armed 
 force prevented any considerable number of voters in any part of the district from going to the polls, 
 and that on that day, in conformity with the forms of law, 2,000 votes at least were cast for the memorialist 
 as a Representative to this Congress, and none, so far as the committee know, for any other person. They 
 therefore report the following resolution, and recommend its adoption: 
 
 Resolved, That Andrew J. Clements is entitled to a seat in this House as a Representative in the 
 Thirty-seventh Congress from the Fourth district in Tennessee. 
 
 The House, on the same day the report was presented, agreed to it without 
 division.' 
 
 Mr. Clements thereupon appeared and took the oath. 
 
 366. The Virginia election case of Charles H. Upton, in the Thirty- 
 seventh Congress. 
 
 The House unseated a person chosen by a few votes, at an election 
 wholly informal, in a district almost entirely under duress of civil war. 
 
 Instance wherein, by majority vote, the House unseated a person 
 whose title was not contested but whose election was invalid. 
 
 The presumption that those who do not go to the polls acquiesce does 
 not apply where a condition of civil war prevents due notice of election. 
 
 An exceptional case wherein the Clerk, without sufficient evidence, 
 enrolled a person who participated for a time as a Member. 
 
 An examination of qualifications of a Member-elect as to inhabitancy. 
 
 On Januarv' 30, 1862,^ the Committee of Elections, in accordance with the 
 direction of the House, reported on the eligibility of and the circumstances attending 
 the election of Charles H. Upton, who at the preceding session had, on his prima 
 
 ' Globe, p. 297; Journal, p. 166. 
 
 - Second session Thirty-seventh Congress, House Report No. 17; 1 Bartlett, p. 368; Rowell's Digest, 
 p. 174.
 
 298 PRECEDENTS OF THE HOUSE OF EEPBESENTATIVES. § 366 
 
 facie right, been admitted to a seat as a Representative of the Seventh Congres- 
 sional district of Virginia.' The election at which he claimed to have been elected 
 was held on May 23, 1861. As to whether or not he was eligible the committee say: 
 
 It appears from the facts admitted in the case and the testimony submitted to the committee that 
 the incumbent for the last twenty-five years has been a freeholder in the State of Virginia, having him- 
 self for the most of that time been a resident and inhabitant of the county of Fairfax, where he and his 
 family were domiciled . For some time prior to the month of November, 1860, the incumbent himself had 
 lived at Zanesville, in the State of Ohio, where he owned an interest in and had been engaged in conducting 
 a daily newspaper, and it was shown that he voted at that place at the annual State election in October, 
 and again at the Presidential election in November of the same year. Under the law of Ohio in force 
 at that time the legal right to vote at either of those elections would necessarily imply a previous residence 
 in that State of one year at least. But the evidence adduced upon this point satisfied the committee 
 that in the month of November, soon after the Presidential election, he returned to his previous residence 
 in the county of Fairfax, where his family had remained and then was. From that time to the month 
 of June last he continued to be a resident and inhabitant of the State of Virginia, and consequently 
 not ineligible, on account of the objection in question, as a candidate for Congress from that State at 
 the date above referred to. 
 
 As to the conditions prevailing in the district the committee show at the outset 
 that on May 14, 1861, the secession of Virginia from the Union had been peri'ected, 
 so far as it could be perfected, by the formal admission of the State to the Southern 
 Confederacy. On the 24th of the preceding April the State convention which 
 framed the ordinance of secession had passed the following ordinance: 
 
 The election for Members of Congress for this State to the House of Representatives of the Congress 
 of the United States, required by law to be held on the fourth Thursday of May next, is hereby suspended 
 and prohibited xintil otherwise ordained by this convention. 
 
 The committee held that although the acts of secession and the above ordinance 
 "were usurpations upon the rights" of the people of Virginia, and in nature revo- 
 lutionary, yet it appeared "that they were generally acquiesced in by a very large 
 majority of the people in the whole of the eastern part of the State." The memorial 
 of the incumbent showed to the committee that this was the fact throughout his 
 district. The committee then say: 
 
 The law of the State providing for the election of Members of Congress on the 23d of May was regarded 
 and treated by the governor, sheriffs, commissioners, and other officers charged with the duty of seeing 
 it carried into effect, with the exception at most of those of a single election precinct, as suspended and 
 for the time being as practically repealed. This course of the election officers appears to have been 
 adopted and pursued without remonstrance or objection from any considerable number of the people 
 of the Seventh Congressional district. The great body of the people in the district seem to have acted 
 upon the belief that on the 23d of May there was no law in force in the State which would enable them, 
 if so disposed, to elect a Member of Congress, nor was there any evidence before the co mm ittee that any 
 very considerable number, if they had had the power, would have had the inclination to exercise it. 
 Such being the state of the district, it is a question well worthy of grave consideration whether its political 
 condition was such that any election for a Member of Congress at that time should be held legally valid 
 either under the law of Virginia or of the United States, even were the evidence of such election clothed 
 with all the ordinary forms of law. 
 
 ' On February 26, 1862, in debate Mr. Henry L. Dawes, of Massachusetts, said that Mr. Upton came 
 without certificate of any man touching his right to the seat, and by personal influence only induced 
 the Clerk of the last House to put his name on the roll of Members elect, "without the slightest evidence 
 in the world."
 
 § 366 ELECTORATES DISTRACTED BY CIVIL WAR. 299 
 
 Mr. Upton had advertised himself as a candidate, and had called on the Union 
 men to open "side polls" on election day and vote for him for Congress. It was 
 claimed that such "side polls" were opened at five different voting precincts, at 
 wliich he received 95 votes. Certain documents were presented containing lists of 
 persons who subscribed to statements reciting that they had been deterred by tlareats 
 or deprived of the opportunity of voting, and "therefore voted" for Mr. Upton. 
 The committee found that "the votes claimed to have been cast at these 'side 
 polls' were not cast in conformity with any law at that time or heretofore in force 
 in Virginia for the election of candidates for Congress; they were not given at the 
 place of voting in the precinct, nor received by any election officer, nor certified 
 or authenticated by any magistrate or commissioner or conductor of an election, 
 nor proved by the oath of any witness." The committee therefore took no account 
 of these votes. 
 
 But from a precinct called Ball's Cross Roads a copy of a so-called poll book 
 was certified, and this showed 10 votes cast for Mr. Upton for Congress. The 
 committee found that this poll book was not authenticated "in due form, or in 
 such manner as to make its contents evidence for any purpose" as would appear 
 by reference to the election laws of Virginia. The State being in rebelUon, the 
 returns could not be delivered to the county sheriff, and the return officers could 
 not make out the certificate required by law to be transmitted to the Governor. 
 Armed men had been at the polls at the Cross Roads, and had evidently intimidated 
 voters who might have wished to vote for Mr. Upton. 
 
 The committee say further — 
 
 In the view the committee have taken of this case, they have not deemed it necessary for them 
 to express any opinion upon the question whether, in a Congressional district containing from 6,000 
 to 8,000 legal voters, the votes of so few as 10 electors, even if properly authenticated and clothed with 
 all the forms of law, would furnish that evidence of a claim to a seat in this House that ought to be 
 regarded as conclusive of the title. The proper time to determine this question will be when a case 
 shall arise that makes a decision of it more indispensable than the one now submitted to the committee. 
 
 It was verj' apparent, from the evidence before the committee, that but a very small portion of 
 the voters in this Congressional district could have been in any way apprised that the incumbent was, 
 on the 23d day of May, a candidate for Congress. It is probable, from the testimony, that not one voter 
 in ten, of the whole number, could have known at the time that the incumbent, or any other candidate, 
 was seeking an election to that office. 
 
 What the legal effect of this general ignorance and want of notice to the voters would be in itself, 
 considered independently of all forms of law, is a matter of very great doubt and well worth grave 
 consideration. Election implies choice, and choice a state of mind in reference to the object of it the 
 reverse of ignorance. With what propriety a person may be said to be elected or chosen as a Repre- 
 sentative to Congress in a district in which nine-tenths of those interested in the election had no knowl- 
 edge that he or anyone else was a candidate, we do not readily or clearly see. If it should be suggested 
 that those who do not go to the polls are presumed to acquiesce in the action of those who do, would 
 not that presumption be sufficiently rebutted by the proof that those who did not go were not only 
 ignorant of the election, but acted under the belief that no election at the time could be legally held? 
 
 Accordingly, the committee reported a resolution that Mr. Upton was not 
 entitled to the seat. 
 
 When the report came up in the House on February 26 and 27,' there was a 
 long debate on the question suggested by the committee as to the size of the elect- 
 
 ' Globe, pp. 975, 1001.
 
 300 PEECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 367 
 
 orate. It was urged that there was no law of Virginia requiring for the election of 
 a Member of Congress the votes of any specified proportion of the voters, and that 
 any number of voters attempting under form or color of law to give expression to 
 the will of the people might be sufficient to exercise the power. 
 
 On the other hand, it was argued that while the forms of law might be put 
 aside when necessary to allow the voices of the voters to be heard, in this case it 
 was proposed to waive all the requirements of law to give effect to the voices of ten 
 men. 
 
 On February 27,' a motion was made to amend the resolution proposed by the 
 committee so as to declare Mr. Upton entitled to the seat. This amendment was 
 defeated, yeas 50, nays 73. Then the resolutions declaring Mr. Upton not entitled 
 to the seat was agreed to. 
 
 In the debate the point was made that the unseating of Mr. Upton, in a case 
 where there was no contestant to be seated, was virtually expulsion; but this point 
 did not figure largely, as there was no serious questioning of the right of the House 
 to investigate the titles of its Members to their seats. 
 
 367. The Virginia election case of Samuel F. Beach, in the Thirty- 
 seventh Congress. 
 
 The House decided against the validity of an election informally held 
 and participated in by only a few voters, most of the district being occu- 
 pied hy an armed enemy. 
 
 The presumption that those who do not go to the polls acquiesce does 
 not apply where a condition of civil war prevents due notice of election. 
 
 A legislature being in existence, a constitutional convention may not 
 fix the times, etc., of elections of Representatives. 
 
 On March 3, 1862,^ Mr. Henry L. Dawes, of Massachusetts, from the Committee 
 on Elections, reported on the memorial of Mr. Samuel Ferguson Beach, who claimed 
 to represent the Seventh district of Virginia. Mr. Beach's certificate showed that 
 on October 24, 1861, at an election held at the court-house at Alexandria, he received 
 138 votes, and that Charles B. Shirley, his opponent, received 1 1 votes; that no other 
 polls of election were opened in the district, as all other portions than the vicinity 
 of Alexandria were within the lines of a hostile force. The credentials were signed 
 by the conductor and two commissioners who were officers of the election, and were 
 addressed to "His Excellency Francis H. Pierpont, Governor of the State of 
 Virginia." 
 
 The conditions imder which the election had been held were thus described by 
 
 the committee: 
 
 A convention assembled at Wheeling, in the State of Virginia, on the 11th of June last, in which were 
 represented, it is believed, thirty-nine counties of the State, situate in what is known as Western Vir- 
 ginia. This convention adopted on the 19th of June "an ordinance for the reorganization of the State 
 government," after having declared that, because of the treasonable practices and purposes of the State 
 convention lately held in Richmond, and of the executive of the State in connection therewith, "the 
 offices of all who adhere to the said convention and executive, whether legislative, executive, or judicial, 
 are vacated." By the same ordinance a legislature, or general assembly, for the State of Vii^inia was 
 
 ' Journal, p. 369. 
 
 ' Second session Thirty-seventh Congress, Report No. 42; 1 Bartlett, p. 391; Rowell's Digest, p. 176.
 
 § 367 ELECTORATES DISTRACTED BY CIVIL WAR. 301 
 
 created, and required to " assemble in the city of Wheeling on the 1st day of July, and proceed to organ- 
 ize themselves as prescribed by existing laws in their respective branches." Said convention subse- 
 quently elected a governor for the State of Virginia, who still holds the office thus conferred upon him. 
 
 The legislature thus created assembled as required, and passed many enactments for the whole 
 State of Virginia, elected two United States Senators, who were admitted to seats in the Senate, and 
 assumed all the functions of the general assembly of Virginia under its preexisting constitution and laws. 
 The convention which created and set in motion this new government did not, however, dissolve itself 
 upon the assumption of the several functions of government by the executive officers and general assem- 
 bly which, in the exercise of provisional powers, it had itself brought into being, but continued to hold 
 its meetings after the assembling of the legislature, and to share with it in ordinary legislation for the 
 whol« State. The legislature was in session till the 24th of July, and how much longer the committee 
 are not informed. The convention was in session on the 20th of August, and on that day passed 
 an ordinance providing for the election of Representatives in Congress in each district where, from 
 any cause, such election was not held on the fourth Thursday in May last, the day provided by law for 
 such election, and aLw "in the Eleventh district, where a vacancy now exists, an election for such 
 Representative shall be held on the fourth Tuesday in October next, which shall be conducted, and the 
 result ascertained, declared, and certified in the manner directed in the second edition of the Code of 
 Virginia." 
 
 Thereupon, on October 12, Governor Pierpont issued a proclamation, to carry 
 out the ordinance of the convention, and closed with the statement that he did 
 "hereby entreat the loyal voters of this State to hold elections in their several 
 districts," etc. 
 
 Such was the authority under which the election was held. Mr. Beach claimed 
 "that the ballot box knows no quorum, and that the number of votes cast is not a 
 legitimate inquiry beyond the necessity of ascertaining for whom a majority was 
 given." 
 
 The committee examined two questions on which the determination of the case 
 depended: (a) The legality of the election in a technical sense; and (6) the acqui- 
 escence of the constituency. 
 
 As to the legality of the election, the committee examined first the authority 
 under which the election was called. They say in their report: 
 
 The whole authority for this election is the ordinance of the Wheeling convention passed August 20. 
 Assuming that the proceedings of that convention, and of the legislature and executive created by it, 
 have ripened into a State government, legal in all respects, still the question arises, was it one of the 
 functions of that convention to provide for the time, place, and manner of electing Representatives in 
 Congress, especially after the legislature had assembled? The purpose of that convention was the 
 creation of a new State government. The only basis upon which it rests is necessity. 
 
 A new govermnent must begin somewhere, and there must be somebody to make it. As necessity 
 was the foundation, so also it was the limit of the power called into being for the sole purpose of inaugu- 
 rating a new government. It could do an\'thing necessary to carry out that purpose, and when that was 
 done it could do no more. Its functions ceased the moment the new government took on form and life. 
 The two can not, in the nattu'e of things, exist and move pari passu. Now, long before this ordinance 
 had passed the convention there was in existence a governor and a legislature, having all the powers 
 that a governor and legislature could have in Virginia — that is, all the powers which the constitution 
 of Virginia clothes a governor and legislature with, not in conflict with the Constitution of the United 
 States. 
 
 Now, this latter instrument provides (art. 1, sec. 4) that "the times, places, and manner of holding 
 elections for Senators and Representatives shall be prescribed in each State by the legislatures thereof." 
 It is a legislative act. It is a law. If the time had been fixed in the constitution of the State, recognized 
 and acquiesced in by the legislature, it may be said to be the act of the lawmaking power — a legislative 
 act. But this time and manner were not fixed in the organic act, nor by the legislature, but by the con- 
 vention assuming legislative functions in the presence of the legislature itself.
 
 302 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES/ § 368 
 
 Further discussing the legahty of the election, the committee point out numer- 
 ous particulars in which the election failed to be carried out in conformity with the 
 Code of Virginia, which the convention prescribed as the guide. The governor had 
 directed no writ of election to the sheriffs, but had simply entreated the loyal voters, 
 the election had not been advertised over the district, the vote had not been can- 
 vassed and proclaimed. 
 
 Therefore the committee concluded that if the claim of the memoriahst rested 
 exclusively on a strict conformity with all the provisions of law, it could not be 
 maintained. 
 
 The committee, however, continue: 
 
 But the committee do not desire to rest their conclusions upon so narrow a basis. If the Union 
 voters of the district had had an opportunity to choose a Representative, if there had been no armed 
 occupation of the district by rebels, so that polls could have been opened at the various voting places 
 in the district, and all who desired could have deposited their ballots, and had done so in conformity 
 with the provisions of law, so far as the disturbed and abnormal condition of things would permit, the 
 committee would have sought some way to give effect to such election. But enough of the facts sur- 
 rounding this election have already been stated to show that such is not the case. There was but one 
 single poll in the whole district opened, and but 149 votes cast. The reason why there were no other 
 polls opened or more votes cast can not be better expressed than by the three freeholders themselves 
 who certify to this election. This is their language: 
 
 "And we further certify that there were no other polls of election held at any other precinct in 
 said county of Alexandria, nor in any other of the counties of this Congiessional district, as far as we 
 can learn and believe; and that all the other counties of this Congressional district are, and were at the 
 time of said election, included within the lines of the rebel army." 
 
 This state of things is no fault of the memorialist or the Union voters of the district; but it did 
 exist on the day of this election. How can it be made to appear, then, that the memorialist is the choice 
 of the district, or that if an opportunity had existed an overwhelming majority of votes would not have 
 been cast against him? In what sense can it be said that those who did not vote are to be presumed to 
 acquiesce, when they neither had the opportunity to vote nor the knowledge that voting was going 
 on? Acquiescence presumes liberty to protest. In this instance that liberty did not exist. 
 
 Therefore the committee recommended the adoption of a resolution declaring 
 that Mr. Beach was not entitled to the seat claimed by him. 
 
 On March 31, 1862,^ the report of the committee was agreed to by the House, 
 without debate or division. 
 
 368. The Virginia election case of "Wing v. McCloud in the Thirty- 
 seventh Congress. 
 
 The House declared invalid an election informally held and partici- 
 pated in by a small fraction only of the voters, the district being largely 
 occupied by an armed enemy. 
 
 The House declined to seat on prima facie showing a claimant declared 
 elected by the governor's proclamation, the district referred to being 
 notoriously under duress of civil war. 
 
 On January 8, 1863,^ the credentials of Mr. Jolm B. McCloud, as Representative- 
 elect from the Second Congressional district of Virginia, were presented to the 
 House, and a motion was made that he be permitted to take the oath. This cer- 
 tificate was in the form of a proclamation of Governor Pierpont, of Virginia, declaring 
 Mr. McCloud duly elected. 
 
 1 Journal, p. 490; Globe, p. 1452. 
 
 - Third session Thirty-seventh Congress, Journal, p. 1G.5; Globe, p. 237.
 
 § 368 ELECTORATES DISTBACTED BY CIVIL WAR. 303 
 
 Objection being made, the credentials were referred to the Committee on 
 Elections, and the oath was not administered. The House, however, allowed the 
 privilege of the floor to Mr. McCloud, as was customary in the cases of contestants 
 and claimants for seats. 
 
 On February- 4' the committee reported both on the claim of Mr. McCloud 
 and also the claim of Mr. W. W. Wing, who contested the election on the ground 
 that certain ballots had been improperly counted for Mr. McCloud, thereby vio- 
 lating the Virginia law requiring viva voce voting. 
 
 The committee found it uimecessary to go into this controversy, since the 
 validity of the entire proceeding was in doubt. 
 
 The Second district of Virginia was composed of ten counties and Norfolk 
 city. The election occurred December 22, 1862, and in all 1,402 votes were cast, 
 645 for Mr. McCloud, 621 for jMt. Wing, and 136 for other candidates. 
 
 The election was called by proclamation of "John A. Dix, Major-General," 
 and was held in precincts in four counties by election officers appointed by "Egbert 
 L. Viele, Brigadier-General and ililitary Governor." In addition there were writs 
 of Governor Pierpont directed "To the sheriff, or any constable, or to any free- 
 holder" in the coimty, and requiring them to hold an election. The committee 
 saj^ in regard to the proceeding: 
 
 It is difficult to imagine a proceeding so entirely in disregard of the requirements of the law of this 
 State as this election. ^\'hether authority for it be sought in the proclamation of Major-General Dix, 
 "commanding the department of Virginia," or in that of Brigadier-General Viele, "military governor 
 of Norfolk," or in the writs of election issued by Francis H. Pierpoint, governor of the Commonwealth 
 of Virginia, or in all three combined, it is equally in conflict with the plainest provisions of the law of 
 the State, ^^'hat territory in Virginia the "department of Virginia^' embraces the committee are not 
 informed; so that they are unable to say that it did or did not embrace the Second Congressional district. 
 The committee are also ignorant of the source from whence General Dix obtained authority to call an 
 election at all. He does not piu^ort to call it as militarj' governor, who is clothed to some extent with 
 civil as well as military powers. The committee are not aware that General Dix assumes to discharge 
 any other civil functions whatever. But the proclamation itself undertakes to prescribe the qualifi- 
 cations which alone would entitle a man to vote at this election, when the Constitution of the United 
 States and of Virginia have fixed the qualification of voters for Representative to Congress, and these 
 qualifications can not be added to or taken from. 
 
 Article 1, section 2, of the Constitution of the United States is as follows: 
 
 "The House of Representatives shall be composed of Members chosen everj' 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." 
 
 And the constitution of Virginia provides, article 3, section 1: 
 
 "Every white male citizen of the Commonwealth, of the age of 21 years, who has been a resident 
 of the State for two years, and of the county, city, or town where he offers to vote for twelve months 
 next preceding an election, and no other person, shall be qualified to vote for members of the general 
 assembly." 
 
 And section 4 provides, as already cited, that "in all elections votes shall be given openly, or viva 
 voce, and not by ballot." 
 
 A comparison of these several provisions with the proclamation of General Dix will show the depar- 
 ture and conflict without any comment or inquiry into the authority for issuing it. 
 
 The proclamation of General Viele seems to have been in aid of that of General Dix. It is issued 
 by him as "military governor of Norfolk." The committee have failed to obtain the instructions to 
 General Dix in this matter, and are equally ignorant of the extent of jurisdiction of the military gov- 
 
 ' Report No. 23; 1 Bartlett, p. 45.5; Rowell's Digest, p. 182.
 
 304 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 368 
 
 emorof Norfolk. If anything can be learned from his title, it is confined either to the city or county of 
 Norfolk. If that be so, he could hardly interfere in this election with the counties of Princess Ann, Nan- 
 semond, or Isle of Wight. But he not only appointed commissioners of election in the county of Norfolk, 
 but also in the other counties already named, and required all from all these counties to make returns 
 to "these headquarters within three days subsequent to the election." The statutes of Virginia require 
 these commissioners to be appointed by the court of each county, and require them to make returns 
 to the clerks of the county courts of their respective counties, and they to the clerk of the county of 
 Isle of Wight, and he declares the result. But it seems that this proclamation, like that (jf tieneral Dix, 
 was confined to four out of the eleven counties of this district. There is no authority of law for this 
 selection, and it is supposed to have been induced by necessity, the remainder of the district being 
 within the rebel lines. But whatever the reason, the House can at once see the danger if it were 
 permitted. If certain counties may be selected in a district, and others omitted in the issue of writs of 
 elections, then the control of the representation must rest with the power of selection. It should be 
 sufficient, however, that the law does not sanction any such selection, and requires the issue of writs to 
 the proper officers of all the counties. 
 
 But the writs of Francis H. Pierpoint, governor of the Commonwealth of Virginia, were also issued 
 in this case, as has been already said. There were none of them sent to any county in the district except 
 the four already named, and therefore all that has been said touching the same proceeding under the 
 proclamations of General Dix and General Viele has equal force here. But these writs, although bear- 
 ing date the 12th of December and calling originally for an election upon Saturday, the 27th day of 
 December, were first brought into the district on Saturday, the 20th, and delivered on Sunday, the 21st, 
 to one of the candidates for distribution, and then by erasions and insertions made at some time — the 
 committee do not know when — they became writs for an election on the next day — that is, on Monday, 
 the 22d day of December, and they were so distributed that day. Now, it is expressly enacted by the 
 statutes of Virginia that "every officer to whom a writ of election is directed shall, at least ten days 
 before such election, give notice thereof, and of the time of the election, by advertisement at each place 
 of voting in his county or corporation." With this plain and express provision of law before them the 
 committee are at a loss for any explanation of the reason of delivering these writs on Sunday for an 
 election the next day, except that given to the candidate at the time of their delivery by General Sam- 
 uels, the messenger who brought them, as stated to the committee by Mr. Wing himself, viz, "to give a 
 semblance of legality to the election," WTiatever may have been the reason for this proceeding, the 
 proceeding itself will have a tendency to invoke the closest scrutiny on the part of the House into the 
 regularity of each successive step in all elections held under the circumstances which attend this. 
 
 But turning from an examination of the conformity to legal requirements in this election to the ques- 
 tion whether the voters of this district, conforming as nearly to law as possible, have, unrestrained and 
 unawed by the presence of any considerable rebel force, had full and fair opportunity to express their 
 choice of a Representative, the committee find that but 1,402 votes in all were cast in a district usually 
 polling about 10,000 votes; that of the eleven counties composing this district polls were opened in only 
 four of them, and not in every precinct in these four, for the reason that they were in the armed occupa- 
 tion of the rebels. No polls could, therefore, be opened, and not a single voter — be the numlier what it 
 may in this much the greater portion of the district — could cast a vote, or in any way have a voice in 
 the selection of a Representative. According to the uniform rule adopted by the committee and sus- 
 tained by the House this has failed, in any just sense, to be the election of a Representative from the 
 Second district in Virginia. The committee, therefore, report adversely upon the right of either claimant 
 to the seat. 
 
 Therefore the committee concluded that neither Mr. Wing nor Mr. McCloud 
 was entitled to the seat. 
 
 On February 14,* in the debate, it was stated that the testimony of Governor 
 Pierpont had been taken since the report was written, and it appeared that the alter- 
 ation in the writs had been made by military officers. 
 
 The House, without division, agreed to the report of the committee.'^ 
 
 > Globe, p. 963. * Journal, p. 400.
 
 § 369 ELECTORATES DISTRACTED BY CIVIL WAR. 305 
 
 369. Tte North Carolina election case of Jennings Pigott in the 
 Thirty-seventh Congress. 
 
 In time of civil war an election participated in by a small number of 
 loyal voters was held invalid, more than two-thirds of the district being 
 unable to participate. 
 
 The House declined to give prima facie effect to irregular credentials 
 referring to a district notoriously under duress of civil war. 
 
 A mere sojourner in a State was held not to be qualified as an inhab- 
 itant to represent a district in Congress. 
 
 On January 15, 1863,' the credentials of Jennings Pigott, claiming to have been 
 elected to the House from the Second district of North Carolina, were presented and 
 the suggestion was made that Mr. Pigott be sworn in. But the House referred the 
 credentials to the Committee on Elections, and the oath was not administered. 
 
 On February 14,^ the committee reported, finding that Mr. Pigott claimed to 
 have been elected January 1, 1863, by virtue of a proclamation issued by Edward 
 Stanley, military governor of North Carolina. The committee do not consider the 
 legaHty of that action, or, in fact, of any of the steps taken in pursuance of that proc- 
 lamation. The}' consider only (a) the numbers of loyal voters participating in the 
 election, and (6) the qualifications of the claimant. 
 
 As to the election, the committee find that the whole nmnber of votes cast was 
 864, of which Mr. Pigott received 595. There was voting in only three of the eleven 
 counties composing the district, and in one of the three there was voting in only one 
 precinct. And there were many voting places in the three counties where no polls 
 were opened or notice taken of the election. Generally, the presence of armed ene- 
 mies prevented the opening of these polls, and the remaining eight counties were 
 almost entirely in the armed occupation of the enemy. Therefore the committee 
 concluded that Mr. Pigott could 
 
 in no just sense be deemed the choice of the loyal voters of a district in which more than half of them 
 had no opportunity to express that choice. Voters may voluntarily stay away from the polls, and they 
 are thereby taken and deemed to have acquiesced in what was done by those who are present. But 
 no such presumption rests upon those who are under duress; and it can never be known that they would 
 not have made choice of another if the iron grasp of the rebellion had been unloosed. 
 
 As to the second point, whether Mr. Pigott was at the time of the election an 
 "inhabitant" of North Carolina, within the meaning of the Constitution, the 
 committee say : 
 
 Mr. Pigott, although a native of North Carolina, had resided in the city of Washington for the last 
 ten or eleven years, owned real estate here, dwelt with his family in his own house here, and had on 
 more than one occasion voted here for municipal officers. After Mr. Stanly was appointed military 
 governor of North Carolina, Mr. Pigott was appointed his private secretary, and, renting his hotise in 
 Washington, went to North Carolina in that capacity, and had remained there as such private secretary 
 two or three months when this election took place. He had done nothing since his return to the State 
 to indicate a permanency of abode there beyond what is here stated. The committee are of opinion 
 that to be an inhabitant within the meaning of this section of the Constitution, if it does not mean 
 resident or citizen, certainly means more than sojourner, which is all that can be claimed for Mr. Pigott. 
 
 ' Third session Thirty-seventh Congress, Journal, p. 194; Globe, p. 334. 
 2 House Report No. 41; 1 Bartlett, p. 463; Rowell's Digest, p. 184. 
 5994— VOL 1—07 20
 
 306 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 370 
 
 In the case of John Bailey (Contested election cases, 411), who was elected a Representative from 
 Massachusetts while a clerk in one of the Departments in Washington, where he had been for six years, 
 although a native of Massachusetts, it was decided that he had ceased to be an inhabitant of Massa- 
 chusetts within the meaning of the Constitution. And the able report of the committee in that case, 
 adopted by the House, defines the word inhabitant in this connection to be "a bona fide member of 
 the State, subject to all the requisitions of its laws and entitled to all the privileges and advantages 
 which they confer." In the opinion of the committee the sojourn of Mr. Pigott in North Carolina, 
 for the temporary and transient purpose of being private secretary to a military governor, was not an 
 inhabitancy within this definition. 
 
 Therefore the committee reported that Mr. Pigott was not entitled to the seat. 
 
 On February 23 ' the report was considered in the House. A proposition was 
 made to amend by adopting a substitute, reciting that the loyal people of the 
 district, having done their best to secure representation, should not be deprived 
 of their rights because of the act of disloyal persons; that the acts of the disloyal 
 had devolved the responsibilities of citizensliip on the loyal ; that the Constitution 
 guaranteed to every State a republican form of government and equal represen- 
 tation in Congress; that the payment of taxes was reciprocal with the right of 
 representation; that protection of citizens in their right of voting was the duty 
 of the Government; and therefore that the loss of that right by loyal citizens because 
 of invasion of the disloyal was a misfortune and not a fault; that laws prescribing 
 the time, mode, and manner of holding elections were merely directory; and 
 finally that, in accordance with these principles, IMr. Pigott was entitled to the seat. 
 
 This amendment was disagreed to - without division ; and then the report 
 of the committee was agreed to. So Mr. Pigott was not admitted to the seat. 
 
 370. The Tennessee election case of John B. Rodgers in the Thirty- 
 seventh Congress. 
 
 The House declined to seat a claimant voted for in a district estab- 
 lished by an insurgent authority and at an election called by that 
 authority. 
 
 Instance of a claim for a seat presented by a memorial. 
 
 On January 19, 1863,^ the memorial of Jolui B. llodgers, claiming a seat in the 
 House from Tennessee, was presented and referred to the Committee of Elections, 
 no suggestion being made that Mr. Rodgers should be sworn in. 
 
 On February' 9 ^ the committee reported as follows: 
 
 That Mr. Rodgers claims to have been elected to this House in November, 1861, from a district in 
 Tennessee, made up in part of the counties embraced in the district now represented by Mr. Maynard 
 (the Second) and in part of counties embraced in the district now represented by Mr. Clements (the 
 Fourth). These gentlemen were elected in August, 1861, and subsequently to their election, the com- 
 m.ittee are informed by Mr. Rodgers that the State was redistricted by the rebel legislature for the 
 so-called Confederate congress, and an election in these new districts was held for the Confederate con- 
 gress in November following. It is claimed by Mr. Rodgers that at this election votes were cast for him 
 as a Representative to this Congress; and it is by virtue of these votes that he now claims a seat. All 
 the evidence submitted by Mr. Rodgers in support of his claim accompanies this report. The com- 
 
 ' Journal, p. 460; Globe, pp. 1208-1212. 
 
 ^ The Journal, by the evident use of the word "agreed" for "disagreed," states that this amendment 
 was agreed to. The context of the Journal, as well as the Globe, shows that it was disagreed to. 
 
 ^ Third session Thirty-seventh Congress, Journal, p. 206; Globe, p. 382. 
 - * House Report No. 32; 1 Bartlett, p. 462; Rowell's Digest, p. 184.
 
 § 371 ELECTORATES DI8TBACTED BX CIVIL WAR. 307 
 
 mittee have found no foundation for the claim, and, referring the House to the accompanying papers, 
 do not deem further comment necessary. They accordingly report the following resolution: 
 
 Resolved, That John B. Rodgers is not entitled to a seat in this House as a Representative from the 
 State of Tennessee. 
 
 The House, on February 14,^ agreed to the resolution mthout division. 
 
 371. The Virginia election case of Christopher L. Grafflin in the 
 Thirty-seventh Congress. 
 
 The House considered invalid an election informally held wherein all 
 but a fraction of the voters were prevented by civil war from partici- 
 pating. 
 
 The House declined to give prima facie effect to credentials regular in 
 form but referring to a district notoriously under duress of civil war. 
 
 On January 23, 1S63,- the credentials of Christopher L. Grafflin, claiming to 
 be elected as Representative from the Eighth Congressional district of Virginia, 
 were presented to the House and the motion was made that he be permitted to take 
 the oath. The credentials were signed by Governor Pierpont and under the seal 
 of the State. 
 
 The House did not permit Mr. GrafSin to take the oath, but referred the 
 credentials to the Committee of Elections. 
 
 On February 23 ' the committee reported as follows : 
 
 Writs of election were issued by the governor of the Commonwealth, bearing date the 13th of Decem- 
 ber, 1862, ordering an election of Representative in this district on the 31st of said December. These 
 writs were placed in the hands of Mr. O. D. Downey, who was instructed to visit the district and deter- 
 mine, from actual observation, whether the district was in a condition to hold an election at the time 
 fixed in the writ ; and if, from the presence of rebels or other causes connected with the war, he should 
 deem an election at that time impracticable or unsafe, to appoint such other day as, in his judgment, 
 would be, under all the circumstances, most suitable and proper. On the arrival of Mr. Downey in 
 the district he found the condition of the people so unsettled (a strong force of the enemy occupying 
 several of the counties, and in the immediate neighborhood of others, threatening those desirous of 
 exercising the elective franchise) that he deemed an election upon the day fixed in the writ wholly 
 impracticable. He accordingly fixed upon the 5th of January, 1863, as the time for holding this elec- 
 tion. At that time there were cast in the county of Morgan 158 votes for Mr. Grafflin and 58 for Joseph 
 S. Wteat; in the county of Berkeley 115 votes for Mr. Grafflin; and in the county of Hampshire 69 votes 
 for Mr. Grafflin and 2 votes for Mr. \Vheat; 342 votes in all for Mr. Grafflin and 60 votes for Mr. Wheat — 
 a total of 402 votes. No votes were cast in any other county, and in but two precincts in Hampshire 
 and one in Berkeley. In the counties of Frederick, Page, Warren, Clarke, Loudoun, and Jefferson, six 
 out of the nine composing the district, there were no votes cast. Of some of these counties the rebels 
 had armed occupation, and into others guerrilla bands were constantly making incursions, filling the 
 people with terror, and threatening with imprisonment all who should participate in this election. 
 To open the polls under such circumstances in these counties would have been worse than a farce; it 
 would have been an invitation to the rebels to visit with violence the peaceful and loyal citizens so 
 situated that our forces could not protect them. 
 
 This case comes within the precedent established in the recent case of Lewis McKenzie,* claiming 
 a seat as a Representative from the Seventh district in Virginia by virtue of an election precisely similar 
 to this. The laws of Virginia require the governor to fix in his writ the time for holding an election to 
 fill a vacancy, and nowhere authorize him to delegate that power to another. 
 
 'Journal, p. 401; Globe, p. 963. 
 
 ^ Third session Thirty-seventh Congress, Journal, pp. 226, 227; Globe, pp. 489, 491. 
 
 ^ House Report No. 43; 1 Bartlett, p. 464; Rowell's Digest, p. 184. 
 
 * See Section 372.
 
 308 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 372 
 
 The election itself, had the day upon which it was held been authorized by law, like that in the case 
 of McKenzie, already alluded to, was not a general election in the whole district, but only a partial 
 and imperfect one, in which much the largest portion of the voters of the district took no part and had 
 no opportunity to take part. No notices were served and no polls opened; and if there had been, no 
 voter could, with safety to his property, his liberty, or his life, have voted in much the largest portion 
 of the district. The committee regret that they can not find any ground for pronouncing this an election 
 in any just sense of that term. After a careful revision of the decision to which they arrived in the case 
 of McKenzie, already stated, which was sustained by the House, they see no occasion to question its 
 correctness, and they tlierefore report the accompanying resolution and recommend its adoption: 
 
 Resolved, That Christopher L. Grafflin is not entitled to a seat in this House as a Representative 
 from the Eighth Congressional district of Virginia. 
 
 On March 3 ' the resolution proposed by the committee was agreed to with- 
 out division. 
 
 372. The Virginia election case of Lewis McKenzie, in the Thirty- 
 seventh Congress. 
 
 The House declined to hold valid an election informally held and, 
 because of civil war, participated in by only a small fraction of the voters 
 of the district. 
 
 On January 29, 1863,^ the credentials of Lewis McKenzie as Representative- 
 elect from the Seventh Congressional district of Virginia, were presented to the 
 House and referred to the Committee of Elections, no motion being made that the 
 oath be administered to Mr. McKenzie. The credentials were in the form of a 
 statement of the votes cast in two counties, no returns being received from eight 
 counties, and were signed by "Jefferson Tacey, Clerk." 
 
 On February 9 ^ the committee reported, showing the following facts and con- 
 clusions: 
 
 To Thomas J. Edlen, 
 
 Special Commissioner Jot Alexandria County: 
 
 Whereas the voters of the Seventh (7th) Congressional district of Virginia, composed of the counties 
 of Alexandria, Spottsylvania, Fairfax, Fauquier, Prince William, Rappahannock, Culpeper, Stafford, 
 Orange, and King George, failed to elect a Representative to the Thirty-seventh (37th) Congress of 
 the United States on the 23d of May, 1861, you are hereby required, having first taken the oath or 
 affirmation prescribed by existing laws, to hold an election to supply the vacancy aforesaid, at the 
 several places of voting in Alexandria County, on Wednesday, the 31st day of December, 1862, or such 
 other day as you may appoint, and of which you shall give due notice; and full authority is hereby 
 conferred on you to do and pro\ide whatever may be necessary for the purpose. 
 
 Given under my hand and the less seal of the Commonwealth, at the city of Wheeling, this 
 thirteenth day of December, 1862, and in the eighty-seventh year of the Conunon wealth. 
 
 [l. s.] F. H. Pierpoint. 
 
 By the Governor: 
 
 L. A. Hagans, Secretary of the Commonwealth. 
 
 These writs ordered an election upon the Slst day of December, 1862, "or such other day as you 
 may appoint." They were not delivered in the district till the evening of the 21st of December. The 
 statutes of Virginia (Code, ch. 7, sec. 17) require "each officer to whom a writ of election is directed 
 shall, at least ten days before such election, give notice thereof, and of the time of the election, by 
 advertisement, at each place of voting in his county or corporation." It became an impossibility to 
 give the required notice for the 31st after the receipt of these writs, on the night of the 21st. Accordingly, 
 
 'Journal, p. 580; Globe, p. 1540. 
 
 ^ Third session Thirty-seventh Congress, Journal, p. 297; Globe, p. 602. 
 
 3 House Report, No. 33; 1 Bartlett, p. 460; Rowell's Digest, p. 183.
 
 § 373 ELECTORATES DISTRACTED BY CIVIL WAR. 309 
 
 the person to whom the writ for Alexandria County was directed, and the person to whom that for Fair- 
 fax County was directed, met on a subsequent day and fixed upon the loth of January for the election, 
 and gave the notices in their respective counties accordingly. The only authority for this alteration of 
 the time is in the writ itself, as follows: "or such other day as you may appoint." No authority of law for 
 giving any such power to the commissioners was shown or claimed before the committee;, on the con- 
 trary, the statutes of Virginia (Code, ch. 7, sec. 16) expressly declares that the writ "shall prescribe 
 the day of election to be the same throughout the district." The committee are of opinion that this 
 power, thus fixed by law in the governor, can not be by him delegated to anyone else, and for this 
 reason the election held on the 15th of January was without any sanction of law. If it were possible 
 that this power could be delegated, still the committee find that the day was agreed upon by the com- 
 missioner of Alexandria and of Fairfax counties alone, without regard to those in the seven other coun- 
 ties composing the district. The law is imperative that the day shall be the same throughout the dis- 
 trict; yet if the commissioners in any two of the counties can fix upon a day, the same may be done 
 by any other two, and the utmost confusion would be certain to ensue. The committee were unable 
 to sanction any such proceeding. 
 
 The committee further show that eight days after the election the legislature 
 of Virginia passed an act providing : 
 
 An Act providing for the return of the special election for a Representative in the Seventh Congressional district, held on 
 the loth day of January, 1863. Passed January 23, 1863. 
 
 Be it enacted by the general assembly, That the clerk of the county court, authorized by law to make 
 returns of the elections held on the 15th day of January, 1863, for a Representative in Congress for the 
 Seventh district, be, and is hereby, authorized and required to ascertain the result and grant certi- 
 ficates therefor at any time within the thirty days allowed therefor. 
 
 2. This act shall be in force from its passage. 
 
 The claimant contended that this legislation ratified and confirmed the act'on 
 of the two commissioners in fixing the day of the election. But the committee 
 concluded that the act referred wholly to the making of the return, and that it 
 was beyond the power of the legislature to ratify or confirm an election held without 
 authority of law. 
 
 The committee also went further and inquired into the character of the election 
 itself. It appeared that there was no election in seven out of nine counties; that 
 in the seven counties an election would have been impossible because of the presence 
 of the armed belligerents; and that the total vote cast was onl}' 554, as compared 
 with 9,273 cast in the Congressional election of 1857. However loyal the people 
 of the district might be, they had had no opportunity to testify that loyalty. 
 
 The committee therefore reported that Mr. McKenzie was not entitled to the 
 seat. 
 
 On February 17,' when the report was considered, a motion was made to amend 
 the resolution of the committee so it should declare Mr. McKenzie entitled to the 
 seat. This amendment was disagreed to without division. 
 
 The report of the committee was then agreed to. 
 
 373. The Tennessee election case of Alvin Hawkins, in the Thirty- 
 seventh Congress. 
 
 The House declined to hold valid an election which was entirely 
 broken up by contending armies, so that only fragmentary and informal 
 returns could be obtained. 
 
 'Journal, pp. 413, 414; Globe, p. 1036.
 
 310 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 373 
 
 On February 11, 1863,' the credentials of Mr. Alvin Hawkins, claiming a seat 
 from the Ninth Congressional district of Tennessee, were presented to the House 
 and referred. No suggestion was made that Mr. Hawkins should be sworn in on 
 his prima facie showing. The credentials were dated at "Headquarters, District 
 of Jackson, Eighteenth Army Corps, Department of Tennessee," distinguished 
 as "Special Orders, No. 29," and was signed by "Jere C. Sulhvan, Brigadier-General 
 Commanding in District of Jackson." The credentials gave the vote cast, and 
 further stated that "forces of the so-called 'Confederate States' were at various 
 places witliin said district on said day of said election preventing the people from 
 voting." 
 
 On February 28,^ the Committee on Elections reported the following state of 
 facts:. The election was held on December 29, 1862, pursuant to writs of election 
 issued by Andrew Johnson, military governor of Tennessee. It appears that a 
 convention of the people of the district had appointed December 13, 1862, as a time 
 for election; but the appearance of the proclamation and writs of Governor Johnson 
 ordering the election on the 29th so interfered with this election that claimant 
 made it no part of liis reliance in liis claim to the seat. The election on the 29th 
 was almost entirely broken up by the presence of contending armies in the district. 
 Indeed, General Hurlbut, commanding the Government forces, issued a military 
 order postponing the election. One sheriff was seized by the enemy and his writs 
 of election were destroyed. Mr. Hawkins was liimself driven from the district. 
 On liis return he gathered up such returns as he could, and procured the general 
 order referred to as his credentials to accompany them. 
 
 In relation to this condition of affairs, the committee conclude: 
 
 The committee have struggled to find some way to give effect to this effort to secui'e representation; 
 but they have not been able to bring it within any of the rules adopted by the House in determining 
 the election cases which are analogous to this. How far the election was conducted at the polls in con- 
 formity to the law of Tennessee it has been impossible to ascertain. No one would expect to find or 
 should require rigid conformity under the peculiarly trj-ing circumstances under which this attempt 
 was made. But the evidence of any votes at all will be seen, by a reference to the accompanying 
 papers, to be of the most vague, uncertain, and unsatisfactory character. The committee have but 
 to call attention to one or two of these papers. An unofficial person, A. G. Shrewsbury, certifies that 
 he has seen the return of votes in Henderson County, and that "there were over 700 votes polled in 
 that county, over 700 of which were for Alvin Hawkins, and the balance, nimibering some 20 or 30, 
 were scattering, and for other persons." This comes, so far as appears, from a private citizen, and 
 has not even the sanction of an affidavit. In no sense can it be taken as evidence. Of a similar char- 
 acter is what purports to be a return from Chestnut Bluff, a precinct in Dyer County, to which the 
 committee call attention. These papers are the bases of the certificate of General Sullivan. The law 
 requires all the returns to be made to the governor, and he is to make the certificate. It was impos- 
 sible for this to be done, and Governor Johnson has furnished nothing. The committee are of opinion 
 that it would be a very unsafe precedent, sure to be fruitful of mischief, to take, as evidence of an elec- 
 tion, the papers here presented. Mr. Hawkins himself was driven from the district and has no personal 
 knowledge of the facts. He has letters from highly respectable citizens corroborating, to some extent, 
 these papers? and while, as a matter of fact, the House may not doubt that these transactions have taken 
 place, yet it would be most dangerous to take, as legal proof of an election, the papers here presented. 
 
 Although the evidence, as far as it goes, tends to show that 1,900 votes were cast, nearly all for 
 Mr. Hawkins, yet it also appears that a very small pait of the district participated in this election. 
 
 'Third session Thirty-seventh Congress, Journal, p. 373; Globe, pp. 887, 888. 
 'House report No. 46; 1 Bartlett, p. 466; Howell's Digest, p. 184.
 
 § 374 ELECTORATES DISTRACTED BY CIVIL WAR. 3H 
 
 Some parts had already voted on tbe 13th; some had postponed still further the day of election, under 
 the military order of General Hurlburt, but more was at the very moment imder the control and occu- 
 pation of contending armies in battle array, in which an election was an impossibility. Under these 
 circumstances, if it be taken as satisfactorily shown that 1,900 votes were polled, that fact must be taken 
 along with the other that they were polled in a verj' small part of the district, and that much the greater 
 portion of it, for the reasons stated, had no part or lot in the matter. The district at the last election 
 for representative cast 18,000 votes. 
 
 The committee are again compelled to come to the same conclusion they have reluctantly arrived 
 at in other cases, adverse to the right of Mr. Hawkins to a seat in this House, upon the state of facts pre- 
 sented to them and which they herewith report. They accordingly recommend the adoption of the 
 accompanying resolution: 
 
 Resolved, That Alvin Hawkins is not entitled to a seat in this House as a Representative from the 
 Xinth district in Tennessee. 
 
 On ^larch 3 ' the House, without division, agreed to the report of the committee, 
 adopting the resolution. 
 
 374. The Virginia election case of McKenzie v. Kitchen, in the Thirty- 
 eighth Congress. 
 
 The House declined to hold valid an election participated in by a little 
 less than half the voters of a district divided between contending armies. 
 
 The House declined to give prima facie effect to credentials in the 
 form prescribed by a government already suspended and referring to a 
 district distracted by war. 
 
 The Clerk declined to enroll persons bearing credentials in form pre- 
 scribed by a State government already suspended. 
 
 On December 7, 1863,^ at the time of the organization of the House, after the 
 roll of Members-elect had been called by the Clerk, the following resolution was 
 offered : 
 
 Resolved, That the names of L. M. Chandler, Joseph Segar, and B. M. Kitchen be placed on the roll 
 as Representatives from the State of Virginia. 
 
 These claimants presented credentials made out in form prescribed by an act 
 of " the general assemblj- of Virginia, held December 2, 1861, at the city of Wheeling." 
 That legislature, it was urged, had been recognized by the National Government; but 
 since that date the State of West Virginia had been formed. The Clerk had not put 
 on the roll the names of the three gentlemen, not deeming the credentials sufficient. 
 
 The House, by a vote of yeas 100, nays 73, laid on the table the resolution. 
 
 On December 9,^ ilr. Henry L. Dawes, of Massachusetts, presented the creden- 
 tials of Messrs. Segar and Kitchen, which were referred to the Committee on Elections 
 without any motion that the gentlemen be sworn in. 
 
 On February 8, 1864,* the Committee on Elections reported both on the right 
 of Mr. Kitchen and on a contest which had been made against his claim to the seat 
 by Lewis McKenzie. 
 
 As between Mr. Kitchen and Mr. McKenzie the election was determined by the 
 vote of Berkeley County, which the contestant claimed should be included in the 
 
 'Journal, p. 580; Globe, p. 1540. 
 
 ^ First session Thirty-eighth Congress, Journal, p. 8; Globe, p. 6. 
 
 'Journal, p. 20; Globe, p. 12. 
 
 * Report No. 14; 1 Bartlett, p. 468.
 
 312 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 374 
 
 State of West Virginia, and therefore formed Ho part of the district as constituted 
 under the laws of the United States and Virginia. The committee found, as a matter 
 of fact under the law, that, as Congress had never assented to the transfer, Berkeley 
 County belonged to Virginia and that its vote was properly counted. 
 
 The contestant further alleged that the commissioners of election in Berkeley 
 County certified the result directly to the clerk of Alexandria County, instead of 
 certifying to the clerk of Berkeley County, who was required by the law to record 
 it in a book and send a certified copy of it to the clerk of Alexandria County. The 
 committee unanimously agreed on the following conclusion: 
 
 It was not contended that any fraud was committed or that the true result in Berkeley was not 
 here certified, and therefore the committee were of opinion that the votes should be counted. This 
 determines the result as to Mr. McKenzie. If these votes were counted, he did not receive a plurality 
 and would not, in any event, be entitled to the seat. 
 
 On February 26 ' a resolution declaring Mr. McKenzie, the contestant, not 
 entitled to the seat was, after debate, agreed to without division. 
 
 The Committee on Elections did not, however, allow the case to rest with the 
 determination of the rights of the contestant. They go into the consideration of 
 the State of the district and its capabilitj^ for electing a Representative. 
 
 The committee found some difficulty in coming to a decision upon this question; but the conclusion 
 to which they have arrived, after a careful consideration, they now submit to the House. 
 
 The case comes so near to what seems to be the dividing line, as established by the precedents of 
 the last House in similar cases, and the judgment of this committee in the case of Joseph Segar, hereto- 
 fore reported to the House, that the difficulty lies in determining upon which side of that line it falls. 
 
 It will be seen that between that part of the district where polls could be and were opened, and 
 the part held by the enemy, there is very nearly an equal division, whether it be divided by territorial 
 limits, by the aggregate of population, the entire free population, or the white male population. In 
 each division the part within the occupation and control of the enemy is a trifle the greatest, but it may 
 be treated practically as about an equal division of the district between the rebels and the Union forces. 
 But it should not be overlooked that, while that portion under rebel control is held so by force of arms 
 and the presence of rebel bayonets, it is equally true that the remainder of the district is, as yet, within 
 our lines and under our sway only by a like force of arms and presence of loyal troops. If the Union 
 forces were withdrawn from any portion of the district, it would be immediately overrun by rebel armies. 
 Practically, the Seventh Congressional district of Virginia, the scene of some of the fiercest and bloodiest 
 conflicts of arms in the whole war, is still a battle ground. 
 
 The present condition of that portion of it within the Union lines little fits it for the free exercise 
 of the elective franchise. Martial law and military discipline, if not incompatible with, are certainly, 
 at best, poor instrumentalities for ascertaining the choice of freemen. Off against this portion of the 
 district thus selected, and thus held, must be set quite as large If not a larger portion in territory, in 
 population, or in voters, which all the time has been held bound in the chains of an armed enemy, 
 overrun with a hostile army, and ground into the dust by the heel of a usurped power. 
 
 The committee have, in this state of the facts, come to the conclusion that this case comes within 
 the precedents of the last Congress, which have been adopted by the committee in the case from the 
 First district of Virginia, already reported to the House. They can not satisfy themselves that there has 
 been such a freedom of election in this district as to warrant the conclusion that Mr. Kitchen is the 
 choice of the loyal voters of the whole district. However near to a majority of such voters those came 
 who participated in this election, yet it appears to the committee that a greater portion failed to partic- 
 ipate in it for the reason that they were held under the power of the rebel army, and therefore by no 
 method can it bo shown that the claimant is the choice of the Union voters of the whole district. It 
 may not be improper to call attention to the fact that while the whole number of votes cast was 2,059, 
 
 ' Globe, pp. 847-850; Journal, p. 309.
 
 § 375 ELECT0EATE8 DISTRACTED BY CIVIL WAR. 313 
 
 only 962 of these were cast for Mr. Kitchen; and that of those, 730 were cast in the county of Berkeley, 
 where Mr. Kitchen now resides, a county which, on the same day that these votes were cast, voted also 
 unanimously to attach itself to West Virginia, and which has, so far as the Icgislatiu-e of both States can 
 effect it, been made a part of the new State, and separated from this district altogether. Although, for 
 reasons already stated, this can have no legal effect upon the vote to its exclusion, yet it is a circumstance 
 which, if it can have any effect, certainly will not lead to the conclusion that Mr. Kitchen would have 
 been the choice of the other counties whose voters were not permitted to participate at all in the election. 
 
 Therefore the committee found that Mr. Kitchen was not entitled to the .seat. 
 One of the committee filed minority views. 
 
 This report was debated on February 26 ' and on April 16,^ the length of 
 the debate as well as the nature showing that the case was considered of great 
 importance. 
 
 A motion to amend the resolution proposed by the committee so as to declare 
 Mr. Kitchen entitled to the seat was disagreed to without division. Then, also 
 without division, the resolution was agreed to as reported by the committee. 
 
 375. The Virginia election cases of Chandler and Segar, in the Thirty- 
 eighth Congress. 
 
 An election by one-third of the voters of a district was held invalid 
 when the presence of an armed enemy prevented the remainder from 
 expressing their wishes. 
 
 The holder of credentials in due form, whose prima facie title is not 
 contested, may not take the seat if a question exists as to the competency 
 of the constituency. 
 
 On December 7, 1863/ at the organization of the House, after the Clerk had 
 called the roll of Members-elect, the credentials of L. M. Chandler, claiming a seat 
 as a Member from Virginia, were presented, and a resolution was oflfered to provide 
 for putting the name of Mr. Chandler, with the names of two other gentlemen, 
 B. M. Kitchen and Joseph Segar, also claiming seats from Virginia, on the roll 
 of Members-elect. This resolution was laid on the table — yeas 100, nays 73.* 
 
 The cases having been referred to the Committee on Elections, that committee 
 reported on Mr. Chandler's case on April 25, 1864,^ and on Mr. Segar's case on 
 January 25, 1864." The report shows that in the Second district of Virginia, 
 which was composed of eleven counties, polls were opened in nine places in Norfolk 
 County, Portsmouth, and Norfolk, and the whole number of votes cast was 779, 
 of which Mr. Chandler received 778. No polls were opened in any other places 
 in the district, because the other counties except Norfolk were so under control 
 of hostile forces that no man could go to the polls in safety. By the census of 
 1860 Norfolk County (including Norfolk city and Portsmouth) had 36,227 popu- 
 lation out of 156,626 in the whole district. The committee conceived that this 
 case was governed by the same principles as were set forth in the report on 
 
 ' Globe, p. 850. 
 
 2 Globe, pp. 1673-1678. 
 
 ' First session Thirty-eighth Congress, Journal, p. 8; Globe, p. 6. 
 
 * See case of B. M. Kitchen, Section 374. 
 
 ' House Report No. 59; 1 Bartlett, p. 520; Rowell's Digest, p. 190. 
 
 « House Report No. 9; 1 Bartlett, p. 577; Rowell's Digest, p. 197.
 
 314 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 375 
 
 Mr. Segar's claim, and therefore reported a resolution that Mr. Chandler was not 
 entitled to the seat. 
 
 Mr. Segar claimed to have been elected in the First district of Virginia, com- 
 posed of twenty counties, receiving about 1,300 votes out of 1,667 cast in four 
 counties. The remainder of the district was so occupied by hostile forces that 
 polls could not be opened. The committee estimated that while 1,667 votes were 
 cast, there were about 5,100 loyal men in the district who did not vote. The 
 committee therefore conclude: 
 
 It is true that the legality of an election does not necessarily depend upon the relative number of 
 loyal voters who attend the polls and of those who stay away. If all are at liberty to vote, those who 
 stay away must always be con.sidered as acquiescing in the action of those who do not. But acquiescence 
 implies liberty to protest. If one stays away because he could not go, it is absurd to say that he stays 
 away because he acquiesces. WTien a man is forcibly silent because his mouth is stopped, nothing can 
 be taken against him for not speaking. If, then, 5,000 Union men have been kept from the polls by 
 the arms of the rebels, it can not be said that they acquiesce in the choice made by 1,700 who were at 
 liberty to go. It can not be known, therefore, by the proceedings on election day, that Mr. Segar was 
 the choice of the legal voters of the district. He might have been, and he might not have been. The 
 committee have no evidence that, had all been permitted to vote, he would not have been such choice, 
 nor have they that he would. Upon this point it is impossible to know, for less than one-fourth of the 
 voters were permitted to speak. 
 
 The question is, upon this state of facts presented, whether, upon any known principle or precedent, 
 Mr. Segar can be admitted to this seat as the legally chosen representative of this district. All principle 
 seems against it. By no process of reasoning can the committee infer from what was done that Mr. Segar 
 is the choice of the district; and it is upon no other base that a right to a seat here can at any time rest. 
 And precedent i.s equally against it. In the reported cases during the last Congress the Committee of 
 Elections and the House had occasion frequently to pass upon this very question. And the principles 
 there laid down by the committee, and sustained in every instance by the House, both when reporting 
 in favor of a right to the seat, as in the cases of Clements, from Tennessee, and Flanders and Hahn, from 
 Louisiana, and when reporting adversely, as in the cases of Upton, Segar, and McKenzie, from Virginia, 
 and Hawkins, from Tennessee, govern this case. Each of these cases was determined upon the facta 
 peculiar to the case. But in them all it was recognized as a rule that where the vote actually polled 
 was such a minority of the whole vote that it could not be determined that the person selected by that 
 minority was the choice of the whole district, and the absent majority were not voluntarily staying 
 away from the polls, but were kept away by force, then no such selection thus made could be treated as 
 an election. 
 
 Therefore the committee concluded that Mr. Segar was not entitled to the seat. 
 They also, in their report, settled a preliminary question, which they state as 
 follows : 
 
 The election was held on the fourth Thursday of May, 1863, and a certificate of election, in sub- 
 stantial conformity with the laws of Virginia as amended by the act of January 31, 1862 (Session I^aws, 
 1861, chap. 44. p. 40), was furnished Mr. Segar by the officer required by that statute to certify an election 
 of Representative in Congress. This certificate accompanies this report. !Mr. Segar claimed that 
 having presented a certificate in conformity to the laws of Virginia, he is now entitled to be sworn in, 
 and to occupy the seat as a Representative till some one else appears showing a better title to it. But 
 the committee were of opinion that they should inquire into and report the facts concerning this 
 election and their conclusion thereon. 
 
 In debate Mr. Segar stated ' that the Clerk originally put his name on the list of 
 Members-elect, but erased it before the Congress assembled. 
 
 ' Globe, p. 2312.
 
 § 376 ELECTORATES DISTRACTED BY CIVIL WAR. 315 
 
 On May 17 the cases of Messrs. Chandler and Segar were, by unanimous 
 consent, debated together,^ as they involved the same principles. 
 
 The question was first taken on the resolution declaring Mr. Segar not entitled 
 to the seat, and the House agreed to it, yeas 94, nays 23. The resolution declaring 
 Mr. Chandler not entitled to the seat was then agreed to without division.^ 
 
 376. The Louisiana election case of A. P. Field, in the Thirty-eighth 
 Congress. 
 
 The House declined to recognize an informal election, participated in 
 by a mere fraction of the voters, in a district entirely under military 
 domination. 
 
 The House denied prima facie title to a person enrolled by the Clerk 
 on credentials signed by a mere claimant to the governorship in a State 
 disrupted by civil war. 
 
 On December 7, 1863,' at the time of the organization of the House, the name 
 of Mr. A. P. Field was called among those on the Clerk's roll of Members-elect, and 
 Mr. Field voted for Speaker. When the Members were sworn, Mr. Thaddeus 
 Stevens, of Pennsylvania, objected to the administration of the oath to Mr. Field, 
 and on his motion the credentials were referred to the Committee on Elections, and 
 the administering of the oath was deferred until after the report of the committee. 
 
 The credentials of Mr. Field are thus described by the committee in their 
 report^ on the final right to the seat: 
 
 That no undue weight may be given to the credentials of Mr. Field, purporting to come from the 
 government of the State, being signed "J. L. Riddell, governor of the State of Louisiana," it is proper 
 that the facts elicited before the committee bearing upon the authenticity of this certificate should 
 be laid before the House. 
 
 Mr. Riddell claims to have been elected governor at the same time with the alleged election of Mr. 
 Field. There were but few votes cast for him, .500 or 600, in the parishes about New Orleans, which 
 are joined with that city in the First and Second Congressional districts under the old apportionment. 
 
 The whole election, like that of Mr. Field, was under the auspices of a committee, to whom the 
 votes were returned, and he has himself no personal knowledge of the number of votes cast for himself or 
 for Mr. Field. That he received in all the number of votes already stated is only the best opinion he 
 could form upon the subject. .\11 voting for governor, as well as Representative in Congress, in New 
 Orleans, was forbidden by the military' governor. The committee express no further opinion here 
 upon the propriety of such conduct on his part, but only state the fact. Mr. Riddell claims to have 
 been elected, and qualified as governor by taking the oath of office before a justice of the peace in New 
 Orleans. The term of office to which Mr. Riddell claims to have been elected did not, according to 
 the laws of the State, commence till the 1st of January, 1864. It is impossible to understand by what 
 process of reasoning this Mr. Riddell has come to the conclusion that he was governor of the State of 
 Louisiana on the 20th day of November, 1863, the day this certificate bears date. 
 
 It was also stated by him that the certificate in question was made out in this city upon informa- 
 tion received by him from others, which he believed to be true, but of the truth of which he had no 
 personal knowledge. 
 
 On the question as to the final right of Mr. Field to the seat, the Committee 
 on Elections found that the alleged election had been held without authority of law, 
 and that there was, moreover, no constituency.* 
 
 'Globe, pp. 2311-2323. 
 
 Moumal, p. 670; Globe, p. 2323. 
 
 'First session Thirty-eighth Congress, Journal, pp. 6, 11; Globe, pp. 6, 7, 8. 
 
 * House Report No. 8. 
 
 '1 Bartlett, p. 580; Rowell's Digest, p. 197.
 
 316 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 377 
 
 Mr. Field claimed to have been elected November 2, 1863, the day prescribed 
 from the law of the State, in the "First Congressional district" under an appor- 
 tionment next preceding the then existing one. The existing apportionment re- 
 quired five districts instead of the four required by the preceding apportionment; 
 and the law of Congress of July 14, 1862, required the five Members to be elected 
 from "districts composed of contiguous territory equal in number to the number 
 of Representatives to which said State may be entitled in the Congress for which said 
 election is held." Thus it was necessary for the State to be divided into five instead 
 of four districts before an election could be held. But such division of the State 
 had not been made, and therefore the election of Mr. Field from one of the old 
 four districts was not in accordance with law. 
 
 As to the constituency on which Mr. Field relied, the committee say: 
 
 The election purports to have been held in the First Congressional district of Louisiana under the 
 old apportionment. That district is composed of the two parishes of Plaquemines and St. Bernard, 
 containing, in 1860, only 12,566 inhabitants, of whom only 2,563 were male whites, and a large portion 
 of the city of New Orleans, containing, in 1862, when this district was formed, about the balance of the 
 then apportionment of 93,000, and in 1860, of course, a much larger number. 
 
 But no election was held on the 2d day of November in any part of this district but the two parishes 
 of Plaquemines and St. Bernard. 
 
 The precise number of votes actually cast for Mr. Field in these two parishes the committee have 
 not been able to ascertain. Mr. Field had before the committee returns from two or three precincts in 
 St. Bernard, which were made to a committee appointed to aid in conducting the election, and amount- 
 iug to 156 votes, and he believed, though he had no personal knowledge of the fact, that as many more 
 votes were cast for him in Plaquemines. But in all that part of the district made up of the city of 
 New Orleans, comprising almost the entire district — certainly more than nineteen-twentieths of the 
 inhabitants — there was no election held and no opportunity given for an elector to express his choice. 
 The election, so far as the city of New Orleans was concerned, was suppressed by orders emanating 
 directly from the military governor of the State, Brigadier-General Shepley. This suppression was 
 effectual, so that not a vote was cast in the city, and the only constituency Mr. Field has was the 
 small number of votes already stated from the very small fraction of the district situated outside the 
 city limit.s. 
 
 Therefore the committee were unanimous in finding no grounds for treating 
 this as an election and reported a resolution declaring Mr. Field not entitled to the 
 seat. 
 
 The report was debated in the House on January 29 and February 9/ and on 
 the latter date the resolution of the committee was agreed to — ayes 85, noes 48.^ 
 
 377. The Missouri election cases of Bruce v. Loan, Birch v. King, and 
 Price V. McClurg in the Thirty-eighth Congress. 
 
 The House, overruling its committee, declined to declare invalid an 
 election because of intimidation in certain counties by State troops on duty 
 by order of the governor. 
 
 The House declined, on proof of intimidation at 8 precincts out of 
 150, to find general intimidation suflacient to render invalid an election. 
 
 On April 8, 1864,' the Committee on Elections reported in the case of Bruce v. 
 Loan, of Missouri. 
 
 » Globe, pp. 411, 543-547. 
 
 = Journal, p. 242; Globe, p. 547. 
 
 'First session Thirty-eighth Congress, Report No. 44.
 
 » 
 
 § 377 ELECTORATES DISTRACTED BY CIVIL WAR. 317 
 
 The question involved in this election was whether or not there had been a 
 valid election in the district. 
 
 The election in question, held on November 4, 1862, was the first attempted 
 to be held in the State since the conunencement of the civil war. From August, 
 1861, until the summer of 1862 the affairs of the State had been conducted by a 
 provisional government. On June 10, 1862, a convention of the people of the 
 State adopted an ordinance defining the qualification of voters and civil officers in 
 the State and specifying a form of oath of loyalty, which was the new qualification 
 provided, in addition to the old quahfications of the State constitution. 
 
 The civil conmiotion had been so great in the State that there were serious 
 apprehensions of disturbances on the day of election. Therefore the adjutant- 
 general of the State, on October 23, issued a general order stating that the test 
 oath of loyalty was a sufficient safeguard against the participation of disloyal per- 
 sons in the election, and therefore warning the enrolled militia, who as citizens 
 would generally be at the voting places, that they should keep order at the polls, 
 prevent intinudation of quahfied voters, themselves abstain from interference, 
 and, finally, that in case of disturbance beyond the power of the civil authorities 
 to quell any commissioned officer present should, "at the request of any judge, 
 sheriff, or justice of the peace," use the necessary militarv' force to suppress it. 
 
 On November 1 another general order cautioned the enrolled militia against 
 constituting themselves judges of election and warned them to "carefully abstain 
 from all acts calculated to interfere ^\■ith the fi-eedom of election." 
 
 The Seventh Congressional district consisted of fifteen counties. It was 
 admitted that the election was fair in seven counties, but the contestant, in his 
 grounds of contest, asserted the follo%ving: 
 
 First. For interference by portions of the armed militia of the State of Missouri with the polls, 
 and the tearing up of poll books, and the interference with voters at the polls by your friends, whereby 
 persons desiring to vote for me were prevented and intimidated from voting and rudely driven from the 
 polls; and by thus preventing persons who would have voted for me I lost, in the counties named below, 
 the number of votes set opposite each county: 
 
 Buchanan County 800 
 
 Andrew County 400 
 
 Holt County 400 
 
 Atchison County 400 
 
 Nodaway County 300 
 
 Dekalb County 100 
 
 Daviess County 200 
 
 Livingston County 600 
 
 Making a total of 3, 200 
 
 which would have elected me over you, and made my entire vote 7,754. 
 
 Second. Improper interference and improper conduct of officers of the election in excluding qual- 
 ified voters from voting for me in the counties named in reason first. 
 
 Third. Intimidation on the part of portions of the militia of the State of Missouri and other armed 
 soldiery, by threats intimidating voters from attending the election, who would have voted for me had 
 they attended. 
 
 Fourth. Interference of portions of the militia of Missouri by forcibly driving voters from the polls 
 who had tickets in their hands ready to vote for me. 
 
 Fifth. Interference of portions of the militia of Missouri, in standing at voting places, with miiskets
 
 318 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 377 
 
 in their hands, and demanding the tickets of voters; and when shown with my name on them, the tickets 
 were torn up by your friends, and the parties told that they could not vote that ticket; and persons who 
 were legal voters were thus prevented from voting for me. 
 
 The whole number of votes returned as cast at the election was 13,803, of 
 wliich Mr. Loan, tlie sitting Member, was credited with 6,582; Mr. Bruce with 4,554; 
 Iklr. H. B. Brand with 2,665, and 2 scattering. Thus the sitting Member's majority 
 over contestant was 2,028 votes. 
 
 It appeared that at the time of the election the sitting Member was a briga- 
 dier-general, and had shortly before the election ceased to be in command of the 
 enrolled militia in the Seventh Congressional district, although he still held such 
 official position elsewhere. Many of the candidates for State offices associatetl with 
 him on the ticket were militia officers then in command. Neither the contestant 
 nor any of the persons associated with him on the ticket were connected officially 
 with the militia. 
 
 After examining the case the Committee on Elections divided, a bare majority 
 concluding that neither contestant nor sitting Member were entitled to the seat, 
 since military interference had invalidated the election; while the minority con- 
 cluded that the evidence did not show sufficient effects of whatever disturbance 
 there may have been to overcome the plurality of the sitting Member. 
 
 The decision of the case, both in the Committee and the House, turned on the 
 examination of the evidence as to the alleged intimidation and violence in the 
 several counties. 
 
 Buchanan County : The only testimony was as to the election in St. Joseph, in 
 the township of Washington. The sheriff of the county, who favored the sitting 
 Member, foimd the polls guarded by militia at one precinct, and saw the ticket of a 
 citizen torn up by a soldier and the citizen driven away. Those not favoring certain 
 candidates seemed afraid to vote. What he saw at two other precincts convinced 
 him that there could not be a free and fair election because of the actions of the 
 militia. In one of the three precincts, as shown by other witnesses, bands of armed 
 militiamen broke up the election and tore up the poll book. The majority of the 
 Committee became convinced from the testimony and from comparison with the vote 
 of other years that as many as 900 votes were lost to the contestant in the township 
 because of the disturbance and intimidation. The minority, wliile not denying that 
 there had been violence and intimidation, thought a deduction of 300 votes about 
 what the testimony indicated, and urged that this, with the deductions in other 
 coimties, would not destroy the sitting Member's plurality. It appeared also that 
 the military guard at the polls was asked for by contestant. 
 
 Andrew County: The testimony related only to the election precinct of Savan- 
 nah. Here there was no militia guard at the polls, the local commanding officer 
 having declined to furnish a guard imless called on by the civil officers. The 
 witnesses testified to disturbance and intimidation, but had only estimates as to 
 those deterred from voting for contestant. The minority of the committee did 
 not consider that any considerable number of persons were intimidated at Savamiah, 
 although one witness had estimated the number as higli as 200. The militia were 
 present as citizens only. The majority of the committee considered the decrease in 
 the total vote of the county as compared with the election of 1860 as of significance.
 
 § 377 ELECTORATES DISTRACTED BY CIVIL WAR. 319 
 
 Livingston County: The testimony related only to Chillicothe precinct. There 
 an officer with a squad of soldiers marched to the polls in the morning and arrested 
 several voters against whose lo3^alty charges were made. Later the troops were 
 ordered away by a telegram from the governor. The majority of the committee 
 presented the comparison with the vote in the precinct and county two years 
 previous, showing a considerable falling off. The minority of the committee 
 found no evidence to show that any voters were kept from tlie polls by the military, 
 the voting having gone on after the soldiers had been withdrawn. In the whole 
 coimty the contestant received more than twice the number of votes received by 
 the sitting Member. 
 
 Atchison County: In this county the testimony related to the precinct of 
 Rockport only, where it was shown that the polls were guarded by armed militia, 
 and where a witness testified that he heard of people who tried to vote being thrust 
 from the polls. Witness also testified that he heard of interference at most of the 
 other precincts of the county. Witness also testified that attempts to take depo- 
 sitions in this county for the purposes of the contest were prevented by intimidation, 
 and that by such depositions a loss of about 300 votes for contestant was expected 
 to be proved. 
 
 The majority of the committee make the comparison, sho^ving a falling off in 
 the vote of the county. The minority of the committee assail this witness for 
 giving merely hearsay testimony, and call attention to the fact that he had been 
 emploj^ed as counsel by contestant. 
 
 Dekalb County: The testimony related only to the precinct of Stewartsville. 
 Several witnesses, including a constable who was on duty at the polls all day, 
 testified to specific acts of intimidation by the enrolled militia, and certain wit- 
 nesses testified that they were deterred from voting. The minority assailed this 
 testimony as inadmissible because ex parte, and also from the fact that the testimony 
 showed only estimates and opinions as to the number of votes kept from the poll 
 by intimidation. 
 
 Holt and Nodaway counties: Contestant took no testimony in these counties, 
 as sworn testimony was produced to show that it would not have been safe for 
 contestant or Ids representatives to go into these counties. 
 
 Daviess County: Contestant included this county in his notice as one where 
 there had been illegal interference with the freedom of election; but the majority 
 of the conmiittee, in their report, concede that tliis was one of the eight counties 
 where the election was fair. 
 
 From their review of the conditions in the above named counties and from a 
 comparison of the votes for the respective candidates in these counties and those 
 where no interference was alleged, as well as from a comparison with the vote of 
 two years previous, the majority concluded that the enrolled militia had "by 
 threats, violence, and by various modes of intimidation so far interfered w^th the 
 election as, in the opinion of the committee, to render the election a nullity." There- 
 fore the majority reported resolutions declaring neither contestant nor sitting 
 Member entitled to the seat. 
 
 The minority criticise the nature of the testimony as to a large extent hearsay, 
 call attention to the fact that contestant offered testimony as to only eight precincts,
 
 320 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 378 
 
 wliile there must have been one hundred and fifty in the whole district. The pre- 
 sumption, in the absence of proof, must be that the election in the precincts not 
 attacked by testimony were fair. 
 
 The minority also call attention to the fact that the aggregate vote of the dis- 
 trict for Congressman was larger than that of any other Congressional district in 
 the State at this election. 
 
 The minority cited the cases of Trigg v. Preston and Clements to show that 
 the acts of "a few loyal State troops, acting under the orders of the State authori- 
 ties in guarding the polls," should not be considered such acts as to invalidate 
 the election. Therefore it was recommended that the House declare the sitting 
 Member entitled to the seat. 
 
 The report was debated in the House at length on May 6, 9, and 10,* those 
 sustaining the majority of the committee setting forth the general state of alarm 
 and intimidation which the testimony tended to disclose. 
 
 The minority contended that when riotous interference or violence were set up, 
 the law required rigorous proof that the result of the election had been affected by 
 riotous interruption or obstruction; and also when restraint or intimidation were 
 set up, proof was required that an organized system of unlawful restraint or 
 intimidation existed or was acted upon to prevent the freedom of election and to 
 secure the defeat of the contestant. And it was contended that such a state of things 
 was not shown in this case. 
 
 On May 10 ^ the House took a test vote on the resolution — 
 
 Resolved, That Benjamin F. Loan (the sitting Member) is not entitled to a seat in this House, etc. — 
 
 And there were yeas 59, nays 71. 
 
 The resolution declaring contestant not entitled to the seat was agreed to 
 without division. 
 
 So the contention of the minority was sustained.' 
 
 378. The Kentucky election case of McHenry v. Yeaman in the 
 Thirty-eighth Congress. 
 
 The House sustained an election generally participated in by the 
 voters, although the district was under martial law and the military 
 pow^er enforced the State requirements as to qualifications of voters. 
 
 On May 13, 1864,* the Committee on Elections reported on the case of McHenry 
 V. Yeaman, of Kentucky. The only question was whether there was a legal election 
 in the Second Congressional district of that State, the contestant asking that the 
 House would vacate the seat "and refer this election back to the people, or take such 
 other action in the matter as may be deemed right and proper." 
 
 The main grounds of the contest were the issuance of certain mihtary orders by 
 officers commanding in the district; and the claim that the election was carried by 
 fraud and force, and that test oaths were applied unknown to the laws of Kentucky. 
 
 ' Globe, pp. 2155, 2185, 2207-2214. 
 
 - Journal, pp. 640, 641. 
 
 ' The case of Birch v. King, also from Missouri, involved the same principles, and the committee 
 asked that it be discharged. This was done after debate. (Globe, pp. 2639-2650.) The action was 
 also taken in the Missouri case of Price v. McClurg. (Journal, p. 787.) 
 
 * First session Thirty-eighth Congress, House Report No. 70; 1 Bartlett, p. 550; Rowell's Digest, 
 p. 193.
 
 § 378 ELECTOKATES DISTRACTED Br CIVIL WAR. 321 
 
 By an act of March 1 1 , 1862, the legislature of Kentucky had passed a law pro- 
 viding in its first section that any citizen of the State who had adhered to the cause 
 of the so-called Confederate States "shall be deemed to have expatriated himself, 
 and shall no longer be a citizen of Kentucky, nor shall he again be a citizen, except 
 by permission of the legislature, by a general or special statute." Then the act 
 further provided: 
 
 Sec. 2. That whenever a person attempts or is called on to exercise any of the constitutional or legal 
 rights and privileges belonging only .to citizens of Kentucky, he may be required to negative on oath the 
 expatriation provided in the first section of this act, and upon his failure or refusal to do so shall not be 
 permitted to exercise any such right or privilege. 
 
 On July 20, 1863, in view of the approaching election (in August, 1863, the 
 election in question) the governor of the State issued a proclamation, enjoining 
 "the strict observance and enforcement" of the above act, in order to preserve the 
 purity of the elective francliise. 
 
 On July 28, 1863, Col. John W. Foster, commanding at Henderson, Ky., issued 
 the following general order: 
 
 In order that the proclamation of the governor and the laws of the State of Kentucky may be 
 observed and enforced, post commandants and officers of this command will see that the following regu- 
 lations are strictly complied with at the approaching State election: 
 
 None but loyal citizens will act as officers of the election. 
 
 No one will be allowed to offer himself as a candidate for office, or be voted for at said election, who 
 is not in all things loyal to the State and Federal governments and in favor of a vigorous prosecution of 
 the war for the suppression of the rebellion. 
 
 The judges of election will allow no one to vote at said election unless he is known to them to be an 
 undoubtedly loyal citizen, or unless he shall first take the oath required by the laws of the State of 
 Kentucky. 
 
 No disloyal man will offer himself as a candidate, or attempt to vote, except for treasonable purposes; 
 and all such efforts will be summarily suppressed by the military authorities. 
 
 All necessary protection will be supplied and guaranteed at the polls to Union men byallthemili- 
 tarj' force within this command. 
 
 Appended to this order was the following form of oath : 
 
 OATH TO BE TAKEN AT THE ELECTION. 
 
 I do solemnly swear that I have not been in the service of the so-called Confederate States in either 
 a civil or military capacity, or in the service of the so-called provisional government of Kentucky; that 
 I have not given any aid, assistance, or comfort to any person in arms against the United States; and 
 that I have, in all things, demeaned myself as a loyal citizen since the beginning of the present rebellion. 
 So help me God. 
 
 On July 30 a duplicate of tliis order was issued by Brigadier-General Shackelford, 
 commanding at Russcllville, Ky. 
 
 On Jul}- 31 Major-General Burnside, commanding the Department of the Ohio, 
 issued a general order reciting that the State of Kentucky was invaded by a hostile 
 force with the avowed purpose of keeping loyal voters from the polls and forcing 
 the election of disloyal candidates on August 3, and declarmg the State imder martial 
 law. The order disclaimed any intention of interfering with the proper expression 
 of public opinion, and declared that all discretion in the conduct of the election 
 would be, as usual, in the hands of the legally appointed judges at the polls, who 
 
 5994— VOL 1—07 21
 
 322 PRECEDENTS OP THE HOUSE OF REPRESENTATIVES. § 379 
 
 would " be held strictly responsible that no disloyal person be allowed to vote, and 
 to this end the military power is ordered to give them its utmost support." 
 
 As part of the record was included a dispatch from General Burnside to General 
 Halleck, dated August 3, 1863 (the day of the election), annoimcing that a hostile 
 force, which had crossed the Kentucky River to assist the command of Morgan, was 
 in full retreat. 
 
 The majority of the committee (which included all but one Member) declined 
 to enter into a consideration of the question whether the military orders were or 
 were not proper; but declared that they "were designed to carry out the law of 
 Kentucky, and in no wise to interfere with the freedom of the elective franchise." 
 
 The majority go on to say that the only question was whether there was an 
 election or not, there being no pretense of title on the part of the contestant. As a 
 conclusive answer to the question whether Mr. Yeaman was the choice of the legal 
 voters of the district, the committee give the official votes at preceding elections: 
 In Presidential election of 1860 it was 15,236; -in May, 1861, for delegates to border 
 State convention, 13,328; in Jime, 1861, for Eepresentative in Congress, 14,665; 
 in August, 1863, for governor, 10,652. In August, 1863, Mr. Yeaman received 
 8,311 votes and Mr. McHenry 3,087. It was evident, therefore, that Mr. Yeaman 
 received a majority of the whole voting population of the district, measured even 
 by the standard of 1860. And it was in evidence that the district had contributed 
 5,714 men to the Army of the United States alone. 
 
 Therefore the majority of the committee recommended a resolution declaring 
 Mr. Yeaman entitled to the seat. 
 
 The minority views, filed by Mr. D. W. Voorhees, of Indiana, on May 12, did 
 not deny that the sitting Member received a large majority over the contestant, 
 but denied that the election was "a free and equal election," such as the constitu- 
 tion of Kentucky guaranteed : 
 
 Any election for a civil officer held under martial law, where the qualifications of voters are pre- 
 scribed by military officers, is not such an election as the founders of this Government intended should 
 be held under the Constitution which they framed, and should be declared void in aU cases by the 
 Congress of the Nation. 
 
 The minority views further present an analysis of the testimony to show intim- 
 idation of voters, the administering of various oaths as tests of loyalty, etc. 
 
 On May 27 and 30' the report was debated at length in the House. The 
 supporters of the majority report argued that the sitting Member was manifestly 
 the choice of the district. A few, while supporting the sitting Member on these 
 grounds, condemned the act of the military authorities in proclaiming martial law. 
 
 On May 30^ the resolution of the majority was agreed to by the House — yeas 
 95, nays 26; so Mr. Yeaman was confirmed in his seat. 
 
 379. The Louisiana election cases of Flanders and Hahn in the 
 Thirty-seventh Congress. 
 
 The House seated a person elected according' to the essential require- 
 ments of law, except that the time of the election was fixed by proclama- 
 tion of a military governor. 
 
 'Globe, pp. 2527, 2579. ^ Journal, p. 719; Globe, p. 2585.
 
 § 379 ELECTOKATES DISTRACTED BY CIVIL WAR. 323 
 
 Discussion of the powers of a military governor, and his status as a 
 de facto executive. 
 
 The House declined to give prima facie effect to credentials signed by 
 the military governor of a State lately in secession. 
 
 On December 19, 1862/ Mr. Benjamin F. Flanders appeared and presented 
 credentials purporting to show his election to fill a vacancy in the office of Repre- 
 sentative of the First Congressional district of Louisiana. These credentials were 
 under the seal of the State and signed by "G. F. Shepley, military governor of 
 Louisiana," and countersigned by "James F. Miller, acting secretary of state." 
 
 The request was made that the oath be administered to Mr. Flanders at once, 
 but objection being made to the natme of the credentials they were referred to the 
 Committee of Elections. 
 
 On December 22 ^ Mr. Michael Hahn appeared with similar credentials for the 
 Second district of Louisiana. The same objection being made, the credentials were 
 referred to the Committee on Elections. 
 
 On February 3, 1863,^ the committee reported on the two cases, as they 
 involved the same principles. The regular elections for Members of the Thirty- 
 seventh Congress should have been held in Louisiana, under the State law, on the 
 first Monday of November, 1861. But the State was then in rebellion, and the 
 governor neglected and refused to order the election. The reoccupation by the 
 national armies of the portions of the State comprising the First and Second dis- 
 tricts had been followed by the resumption of allegiance on the part of many 
 citizens, the total number being over 60,000 up to October 21, 1862. 
 
 On November 14, 1862, the military governor of the State, George F. Shepley, 
 issued a proclamation ordering an election for Members of Congress in the First 
 and Second districts. This proclamation, over which the principal issue in this 
 case forms, was as follows : 
 
 A PROCLAMATION. 
 
 By Brigadier-General George F. Shepley, Military Governor of the State of Louisiana. 
 
 Whereas the State of Louisiana is now and has been without any Representatives in the Thirty- 
 seventh Congress of the United States of America; and whereas a very large majority of the citizens 
 of the First and Second Congressional districts in this State, by taking the oath of allegiance, have given 
 evidence of their loyalty and obedience to the Constitution and laws of the United States: 
 
 Now, therefore, I, George F. Shepley, military governor of the State of Louisiana, for the purpose 
 of securing to the loyal electors in the parishes composing these two Congressional districts their appro- 
 priate and lawful representation in the House of Representatives of the United States of America, and 
 of enabling them to avail themselves of the benefits secured by the proclamation of the President of 
 the United States to the people of any State, or part of a State, who shall on the first day of February 
 next be in good faith represented in the Congress of the L^nited States by Members chosen thereto at 
 elections wherein a majority of the qualified voters of such State have participated, have seen fit to 
 issue this my proclamation, appointing an election to be held on Wednesday, the third day of December 
 next, to fill said vacancies in the Thirty-seventh Congress of the United States of America, in the 
 following districts, namely: 
 
 The First Congressional district, composed of that part of the city of New Orleans heretofore 
 known as municipality number one and municipality number three, and now designated as districts 
 
 'Third session Thirty-seventh Congress, Journal, p. 101; Globe, p. 144. 
 
 = Journal, p. 106; Globe, p. 164. 
 
 3 House Report No. 22; 1 Bartlett, p. 438; Rowell's Digest, p. 181.
 
 324 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 379 
 
 numbered two and three, and Suburb Treme, that portion of the parish of Orleans lying on the right 
 bank of the Mississippi, and the parishes of St. Bernard and Plaquemines. 
 
 The Second Congressional district in the State of Louisiana, composed of that part of the city of 
 New Orleans above Canal street, known as the First district, and district number four, formerly the 
 city of Lafayette, and of the parishes of Jefferson, St. Charles, St. John the Baptist, St. James, Ascension, 
 Assumption, Lafourche, Terrebonne, St. Mary, and St. Martin. 
 
 Writs of election will be issued, as required, and the election held at the places designated by law. 
 
 The proceedings wUl be conducted and returns thereof made in accordance with law. 
 
 No person will be considered as an elector qualified to vote who, in addition to the other qualifica- 
 tions of an elector, does not exhibit to the register of voters, if his residence be in the city of New Orleans, 
 or to the corami.ssioners of election, if his residence be in any other place in said districts, the evidence 
 of his having taken the oath of allegiance to the LTnited States. 
 
 Given under my hand and the seal of the State of Louisiana, at the city of New Orleans, this 
 
 fourteenth day of November, A. D. 1862, and of the independence of the United States of America 
 
 'he eighty-seventh. 
 
 George F. Shepi.ey, 
 
 Military Governor of Louisiana. 
 \ By the Governor: 
 
 James F. Miller, Acting Seeretajy of State. 
 
 In accordance with this proclamation the election was held. It was claimed 
 by the Committee of Elections, and not disputed, that in essential respects the 
 election was conducted according to the forms prescribed by the laws of Louisiana, 
 excepting a law of the disloyal legislature prescribing an oath to support the Con- 
 federacy as a qualification of voters. The registration required by law was not 
 wholly completed however, and persons not registered were in some precincts 
 allowed to vote after proving that they had the requisite qualifications. The Com- 
 mittee of Elections held that the spirit of the law was not in this respect violated, 
 and they further say : 
 
 And had its provisions been ignored in this particular it would clearly have been only a disregard 
 of a mere directory provision of the law. The principal and only aim of the law is to secure fair election.s, 
 and the nonobservance of directory provisions can not annul an election carried on with all the essentials 
 of an election and with perfect fairness. 
 
 This principle of law, with regard to directory provisions, has been repeatedly and clearly laid 
 down by the supreme court of Louisiana and the supreme courts of other States, as well as by the Supreme 
 Court of the United States, and is too well understood by (n-ery legal mind to need any elucidation here. 
 And it is expressly enacted that no elector shall be deprived of his vote by any omission to give him 
 a certificate of his election. 
 
 But this phase of the question was little in issue, and there was in the contro- 
 versy little insistence that the election had not been conducted in accordance with 
 the requirements of law. 
 
 The main issue of the case is thus stated by the committee : 
 
 The committee have found little difficulty in coming to a conclusion that the claimants should be 
 admitted to their seats, except in doubts as to the power of the military governor to fix the day of this 
 election. In all things else there has been strict conformity to law. The districts were entirely free 
 from a rebel force to restrain or overawe the loyal votes. The old voting precincts and voting places 
 were all restored, and votes polled at every one of them, except in one inconsideral)le parish, and part 
 of another in one district into which guerrillas sometimes made incursions. There was a very full vote 
 given — a remarkably full one when compared with the vote at former Congressional elections, if allow- 
 ance be made for the usual proportion of voters among the soldiers absent in the Union and rebel armies. 
 Two thousand men had been recruited by General Butler into his own regiments, and two full regiments 
 of Louisiana troops had been organized by him from these two Congressional districts, while more had
 
 § 379 ELECTORATES DISTRACTED BY CIVIL WAR. 325 
 
 gone into the rebel army, though many of these had returned to the city and their allegiance. Deduct- 
 ing the proper proportion of voters from these, and there can be no doubt of a full vote when the result 
 is compared with that in former years. At the last election for representative in the First District, in 
 1859, the whole number of votes was 4,970; at the present election, 2,64.3; difference, 2,327. In the 
 Second district, in 1859, the whole number was 10,367; at the present election the whole number was 
 5,117; difference, 5.250. 
 
 **** ********* 
 
 It remains to be considered, finally, whether this election, thus conducted, in which all the loyal 
 voters in such numbers participated in conformity with all the provisions of law, shall be set aside by 
 this House and the representation denied, because the time for holding it was fixed l)y the military 
 governor in the absence of any other governor. The exact powers of a military governor can not be 
 easily defined. They have their origin in, and are probab-ly limited by, necessity. They are to some 
 extent civil as well as military, and the authority for his civil functions is no less clear than for his mili- 
 taiy. The Supreme Court and Congress have recognized both. The former, in the case of Cross v. 
 Harrison (16 Howard, 164), recognized as valid the imposition and collection of duties by a military 
 governor, even after the port at which they were imposed and collected had lieen by statute included 
 in a collection district and a collector appointed, but who had not entered upon the duties of his office. 
 And Congress admitted California into the Union, with a State government formed and set in motion 
 even to the election of Senators and Representatives in Congress, exclusively under the auspices of a 
 military governor. The constitutionally elected governor of Louisiana had turned traitor and refused 
 to discharge his constitutional obligations in this regard. What were the loyal voters to do? Were 
 they to turn traitors also or be disfranchised? The Constitution imposes upon the United States this 
 obligation (Art. IV, sec. 4): 
 
 ' ' The United States shall guarantee to everj' State in this Union a republican form of government 
 and shall protect each of them from invasion; and on application of the legislature or of the executive 
 (when the legislature can not be convened), against domestic violence." 
 
 Representation is one of the very essentials of a republican form of government, and no one doubts 
 that the United States can not fulfill this obligation without guaranteeing that representation here. 
 It was in fulfillment of this obligation that the Army of the Union entered New Orleans, drove out the 
 rebel usurpation, and restored to the discharge of its appropriate functions the civil authority there, 
 lis work is not ended till there is representation here. It can not secure that representation through the 
 aid of a rebel governor. Hence the necessity for a military governor to discharge such functions, both 
 militarj' and civil, which necessity imposes in the interim between the absolute reign of rebellion and 
 the complete restoration of law. Suppose Governor Moore to be the only traitor in Louisiana. One of 
 two things must take place. The people must remain unrepresented, or some one must assume to fix a 
 time to hold these elections. Which alternative approaches nearest to repul)licanism — nearest to the 
 fulfillment of our obligations — to guarantee a republican form of government to that people, closing the 
 door of representation, or recognizing as valid the time fixed by the military governor? Are this people 
 to wait for representation here till their rebel governor returns to his loyalty and appoints a day for an 
 election, or is the Government to guarantee that representation as best it may? The committee can not 
 distinguish between this act of the military governor and the many civil functions he is performing every 
 day, acquiesced in by everybody. To pronounce this illegal, and refuse to recognize it, is to pronounce 
 his whole administration void and a usurpation. But necessity put him there and keeps him there. 
 
 Again, this George F. Shepley assumes to act as governor of Louisiana, discharging the civil f unct ions 
 of such governor. This is one of them. All loyal men in the State acquiesce in these acts. There is no 
 other man discharging them or seeking to discharge them. This act of fixing the time of an election 
 comes in conflict with no time fixed by any other man. This is to be governor de facto. This House 
 has no jurisdiction to determine who is rightfully in the office of governor of Louisiana. Thus if this 
 act be taken as the act of a governor de facto it must be recognized as valid. 
 
 The committee cited in support of its position the case of Clements, of Ten- 
 nessee, and concUided by recommending resolutions declaring both ilr. Flanders 
 and Mr. Hahn entitled to seats in the House.
 
 326 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 380 
 
 The debate began on February 9 and continued through February 10 and 17,' 
 the issue being joined almost entirely on the question of the constitutionality of 
 the proclamation of the military governor. It was objected that the Constitution 
 had fixed the method by which Members should be elected to the Hovise, and that 
 the time, place, and manner were to be determined by the legislative power only. 
 This provision was derived from the English constitution, where it had been needed 
 to curb the authority of the sovereign. So in this country the fixing of the time of 
 election by a military governor, appointed by the President, was an invasion by 
 executive power. "No Representative can be elected to the Congress of the United 
 States," it was argued,^ "except in pursuance of the legislation of a State, or of the 
 legislation of the Federal Government. * * * j^ State election law, which by 
 its terms requires State officers duly qualified to execute it, can not be executed by 
 a military governor appointed by the President." No State law and no law of 
 Congress authorized the calling of the election in question. Hence it was contended 
 that the two gentlemen were not entitled to admission. 
 
 On February 17 the following substitute was proposed for the resolutions of 
 the committee: 
 
 That the proclamation issued by George F. Shepley , styling himself military governor of Louisiana, 
 at New Orleans, on the 14th day of November, 1862, etc. * * * ^as null and void, without the 
 authority of law, and imparts no validity to the election of Benjamin F. Flanders and Michael Hahn. 
 
 Resolved, That the election of said Flanders and Hahn appearing to have been free and unrestrained, 
 and in accordance with the laws of Louisiana, except that being on a day other than a day of general 
 election, had not been directed to be held by the governor of Louisiana, the action of the electors in the 
 premises is ratified and confirmed, and said Flanders and Hahn are declared entitled to their seats as 
 Members of this House. 
 
 This amendment was disagreed to — yeas 11, nays 115. 
 
 Then, by a vote of yeas 92, nays 44, the House agreed to the resolutions declar- 
 ing Messrs. Flanders and Halin entitled to their seats.^ 
 
 380. The Arkansas election cases of Johnson, Jacks, and Rogers in 
 the Thirty-eighth Congress. 
 
 The House as a matter of course declined to give prima facie effect to 
 credentials emanating from the loyal provisional government of a State 
 lately in secession. 
 
 In 1864 the Elections Committee favored the seating of claimants 
 coming from districts almost free from armed foes, but elected in an elec- 
 tion called by a loyal convention and by a fraction of a normal vote. 
 
 On February 10, 1864,* Mr. Henry L. Dawes, of Massachusetts, presented the 
 credentials of James M. Johnson, from the Third Congressional district of Arkansas. 
 
 The credentials^ were in the form of a proclamation issued by the provisional 
 governor of Arkansas, reciting that in accordance with the schedule appended to 
 the constitution adopted by the late convention of the State of Arkansas (held in 
 January, 1864) an election had been held on March 14, 1.5, and 16, 1864, at which 
 
 ' Globe, pp. 831, 855, 1030. 
 
 ^By Mr. John A. Bingham, of Ohio. 
 
 'Journal, pp. 411, 412; Globe, pp. 1035, 1036. 
 
 * First session Thirty-eighth Congress, Journal, p. 244; Globe, p. 574. 
 
 * Second session Thirty-eighth Congress, House Report No. 18.
 
 § 380 ELECT0KATE3 DISTAACTED BY CIVIL WAR. 327 
 
 the constitution had been adopted, various State officers elected, and three Con- 
 gressmen, one of whom was ilr. Johnson, from the Third district. 
 
 Mr. Dawes asked that the credentials be referred to the Conmiittee on Elec- 
 tions. No request was made that the oath be administered. 
 
 ilr. Henr\- Winter Davis, of Maryland, moved that the credentials be laid on 
 the table. 
 
 On February 16,' the motion to lay on the table being withdrawn to permit 
 debate, Mr. Davis said he had moved to lay the credentials on the table because 
 other action on them might lead to the recognition by the House of the State of 
 Arkansas. 
 
 After debate at length, Mr. Kobert C. Schenck, of Ohio, moved to amend the 
 the motion to refer by adding instructions that the committee investigate whether 
 or not there was such government existing in Arkansas as to entitle the State and 
 people to representation in Congress. 
 
 On the question of agreeing to the instructions there were yeas 53, nays 104. 
 
 A motion by Mr. Davis to lay the whole subject on the table was disagreed to; 
 and then the motion of Mr. Dawes that the credentials be referred to the Committee 
 on Elections was agreed to.' 
 
 On May 12 ' the credentials of Mr. T. M. Jacks, from the First Congressional 
 district of Arkansas, were presented to the House and referred to the Committee 
 on Elections; and on May 16 * those of Mr. A. A. C. Rogers were similarly presented 
 and referred. 
 
 On Februarv* 17, 1865,^ the conmaittee reported resolutions declaring that 
 Messrs. Johnson and Jacks were entitled to seats as Representatives from Arkan- 
 sas. The committee say: 
 
 There seems in Arkansas at all times to have been a large number of unconditional Union men. It 
 is evident that the so-called secession ordinance was not passed in accordance with the wishes of the 
 people of the State. The convention elected in 1861 was largely Union, but, without instructions from 
 the people, passed the ordinance of secession. 
 
 After three years of war and desolation, the loyal people of Arkansas assembled in convention at 
 Little Rock in Januarj', 1864. The result of the convention's deliberations was the amending of the 
 State constitution, the appointment of a provisional governor, lieutenant-governor, and secretary of 
 state, and the designation of the 14th, 15th, and 16th days of March as the time for holding a general 
 election throughout the State. 
 
 The acts of this convention, judging from the statements of its members, were rather suggestive than 
 obligatory. Indeed, it did not claim its acts as binding until they were ratified by the people, which was 
 done with a unanimity seldom met with. At the election on the 14th, 15th, and 16th of March, the acts 
 of the convention were approved by 12,177 voters, while they were disapproved by only 226. At that 
 election the people of more than 40 counties elected State and county officers necessary to set to work 
 again the machinery of a loyal State government, which had been overthrown by the rebellion in the 
 month of May, 1861. 
 
 On the 18th of April, 1864, the State government was formally inaugurated, since which time it 
 has been struggling for an existence under difficulties which those who are strangers to its trials can 
 not properly appreciate. 
 
 ' Globe, pp. 680-^87. 
 
 = Journal, pp. 268. 269; Globe, p. 687. 
 
 3 Journal, p. 650; Globe, p. 2253. 
 
 * Journal, p. 660; Globe, p. 2289. 
 
 * Second session Thirty-eighth Congress, House Report No. 18; 1 Bartlett, p. 597; Rowell's Digest, 
 n. 199.
 
 328 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 381 
 
 The committee go on to describe the amended constitution, showing that it 
 abolished slavery, and to show that a State government under this constitution was 
 in operation, and the legislature had shown by its legislation that the disloyal 
 elements of the State were not to participate in its government. It was also noted 
 that Arkansas had furnished at least 10,000 Union volunteers. 
 
 The First district was composed of twenty counties, which at the Presidential 
 election of 1860 cast 16,841 votes. Fourteen of these counties participated "pretty 
 fully" in the March election in question, casting the aggregate vote of 3,000. These 
 fourteen counties in 1860 cast a total of 14,005 votes. Of the 3,000 votes cast for 
 Member of Congress at the March election Mr. Jacks received all but 15. 
 
 In the Third district all but one of the nineteen counties participated pretty 
 fully, the total vote being nearly 5,000, of which Mr. Johnson received over 4,000. 
 These counties gave in 1860 an aggregate vote of 16,932. 
 
 The committee then go on to quote the position taken in the case of Mr. Bonanzo, 
 of Louisiana, as to the course to be taken when the people had reorganized State 
 governments. 
 
 The report of the conunittee in these Arkansas cases was presented near the end 
 of the Congress, and was not acted on by the House. 
 
 381. The Louisiana election cases of Bonanzo, Field, Mann, Wells, 
 and Taliaferro, in the Thirty-eighth Congress. 
 
 In 1864 the Elections Committee were divided as to seating persons 
 chosen under authority of a constitutional convention in a State recently 
 in insurrection. 
 
 The House did not permit prima facie effect to credentials coming 
 from a State lately in insurrection and from a government of doubtful 
 standing. 
 
 On December 5, 1864,' the Speaker laid before the House the credentials of 
 M. F. Bonanzo, A. P. Field, W. D. Mann, T. M. Wells, and Robert W. Taliaferro, as 
 Representatives from the State of Louisiana. No motion was made to administer 
 the oath, and the credentials were referred to the Committee on Elections. The 
 claimants were allowed the privileges of the floor. 
 
 On February 11, 1865,^ the Committee reported on the case of ^Ir. Bonanzo, who 
 had been returned by 1,609 votes out of a total of 3,065. The committee say: 
 
 This election derives its authority from the constitutional convention which commenced its session 
 in New Orleans April 6, 1864, which amended essentially and adopted anew the constitution of Louisi- 
 ana, and, among other things, did, on the 22d of July, 1864, divide the State into five Congressional 
 districts, in accordance with the number of Representatives assigned to that State in the apportionment 
 under the census of 1860, and ordered an election to be held on the first Monday of September, 1864, to 
 fill the vacancies caused by the failure of the State hitherto to elect Representatives to the present 
 Congress. 
 
 Previous to this constitutional convention there had been a State government, 
 elected in pursuance of a proclamation of the major-general commanding the depart- 
 ment. The State convention, which met April 6, 1864, and adjourned July 25, 
 
 ' Second session Thirty-eight Congress, Journal, p. 7; Globe, p. 2. 
 
 -Journal, p. 242; 1 Bartlett, p. 583; Rowell's Digest, p. 198; House Report Xo. 1.3.
 
 § 381 ELECTORATES DISTRACTED BY CIVIL WAR. 329 
 
 adopted a provision abolisliing slavery as part of the new constitution, and the pro- 
 ceedings were, by proclamation of the governor, submitted to the people on Septem- 
 ber 5, and were ratified without material opposition. The whole number of votes 
 was over 9,000. 
 
 The constitutional convention, by ordinance, divided the State into five Con- 
 gressional districts, and directed elections to be held on September 5, 1S64. In 
 accordance with this ordinance the governor issued his proclamation directing the 
 elections to be held. Mr. Bonzano was elected in accordance with these proceed- 
 ings, and received liis certificate of election from the governor. 
 
 The committee say in regard to this election: 
 
 This election depends for its validity upon the effect which the House is disposed to give to the 
 efforts to reorganize a State government in Louisiana, which have here been briefly recited. The dis- 
 tricting of the State for Representatives, and the fixing of the time for holding the election, were the 
 acts of the convention. Indeed, the election of governor and other State officers, as well as the existence 
 of the convention itself, as well as its acts, are all parts of the same movements. 
 
 It is objected to their validity that they neither originated in nor followed any preexisting law of 
 the State or Nation. But the answer to this objection lies in the fact that, in the nature of the case, 
 neither a law of the State nor Nation to meet the case was a possibility. The State was attempting to 
 rise out of the ruin caused by an armed overthrow of its laws. They had been trampled in the dust, 
 and there existed no body in the State to make an enabling act. Congress can not pass an enabling act 
 for a State. It is neither one of the powers granted by the several States to the General Government, 
 nor necessarj' to the carrj-ing out of any of those powers, and all "the powers not delegated to the United 
 States by the Constitution nor prohibited by it to the States are reserved to the States respectively or 
 to the people." It is preposterous to have expected at the hands of the rebel authorities in Louisiana 
 that, previous to the overthrow of the State government, they should prepare a legal form of proceeding 
 for its restoration. In the absence of any such legal form prepared beforehand in the State, and like 
 absence of power on the part of the General Government, under the delegated powers of the Constitution, 
 it follows that the power to restore a lost State government in Louisiana existed nowhere, or in '"the 
 people," the original source of all political power in this country. The people, in the exercise of that 
 power, can not be required to conform to any particular mode, for that presupposes a power to prescribe 
 outside of themselves, which it has been seen does not exist. The result must be republican, for the 
 people and the States have surrendered to the L'nited States, to that extent, the power over their form 
 of government in this, that "the United States shall guarantee to everj- State a republican form of 
 government." 
 
 It follows, therefore, that if this work of reorganizing and reestablishing a State government was 
 the work of the people, it was the legitimate exercise of an inalienable and inherent right, and, if repub- 
 lican in form, is entitled not only to recognition, but to the "guaranty" of the Constitution. 
 
 The attention of the committee has, therefore, been directed to the inquiry how far this effort to 
 restore constitutional government in Louisiana has been the work of the people. Those engaged in the 
 traitorous attempt to destroy the government form no part of that people engaged in the patriotic effort 
 to restore it. The government is to be made, if at all, for and by patriots and not by traitors. In answer- 
 ing another and essential question, whether a government once erected in that State will be able to 
 maintain itself against domestic violence, traitors must be counted, but not for their voice in making 
 the government itself. As well might the inmates of a State prison be enumerated and consulted upon 
 determining the character of a code of laws designed for their government. 
 
 The evidence before the committee, and all the information they coidd obtain, satisfied them that 
 the movement which resulted in the election of State officers, the calling of a convention to revise and 
 amend the constitution, the ratification of such revisal and amendment by a popular vote, and the sub- 
 sequent election of Representatives in Congress, was not only participated in by a large majority, almost 
 approaching to unanimity, of the loyal people of the State, but that that loyal people constituted a 
 majority of all the people of the State.
 
 330 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 382 
 
 The committee go on to say that they entertain no doubt of the ability of this 
 government to maintain itself against domestic violence if protected from enemies 
 without. 
 
 Therefore, the committee recommended a resolution declaring Mr. Bonzano 
 entitled to a seat as Representative from the First district of Louisiana. 
 
 A minority of the committee dissented from this conclusion. They say: 
 
 Has evidence been presented which authorizes this House to declare that the people of Louisiana, 
 by any proper mode of expression, have changed the status in which they were placed by their own acts 
 and established a republican government? Such only is the form contemplated by the Constitution; 
 such only has any title to representation on this floor; such only is the United States bound to guarantee 
 or authorized to recognize. 
 
 The indispensable quality of such government is that it shall emanate from the people; and not only 
 must it be derived from the great body, but their agency in its organization must have been voluntary. 
 The idea of restraint is incompatible with volition. The government must not only rest on the consent 
 of the governed but that consent must not be procured by force or intimidation. 
 
 It is not sufficient that the result may show that a government apparently republican has been 
 created, but the creation must be the exercise of a will unaffected by the presence of an overawing power. 
 
 The erection of a State government is a purely civil act. It has no affinity or connection with 
 martial law. The civil power is alone capable to distinguish or declare the fact of its establishment or 
 the essential conditions of its existence. The Congress of the United States is the only body having 
 authority, primarily, to recognize the government of a State. Neither the Executive nor any subordinate 
 military commander has capacity to incept or consummate its creation. The undersigned do not insist 
 that an act of Congress is necessary as a prerequisite to enable the people of Louisiana to form a govern- 
 ment, but the judgment of Congress must be passed on the result of the action of the people in the 
 recognition of their act before Representatives can be entitled to admission on this floor. This House 
 must be satisfied that their constitution is ordained in accordance with their deliberate and unforced 
 will before it can lend its sanction to the act or recognize its validity. Two questions, therefore, are 
 presented for consideration; 
 
 1. Did the great body of the loyal people of Louisiana, in fact, participate or clearly concur in tlie 
 establishment of the government offered for recognition? 
 
 2. Was their act the result of their deliberate will and voluntary choice, unprocured by mDitary 
 interference? 
 
 The minority answer the first question by showing that only nineteen of forty- 
 eight parishes in the State sent delegates to the constitutional convention, and that 
 the votes on the ratification of the constitution were not representative of the vote 
 of the State. 
 
 The minority answer the second question by citing testimony and documents 
 tending to show that the military power was all-powerful, and that civil government 
 did not m fact exist except in a weak condition. 
 
 The report in this case of Mr. Bonzano was not acted on by the House. 
 
 Reports similar in nature were made on the cases of Messrs. Field and Mann, 
 but were not acted on by the House.* 
 
 382. The Senate election cases of Fishback and Baxter, from 
 Arkansas, in the Thirty-eighth Congress. 
 
 The Senate declined to give prima facie effect to credentials regular 
 in form but from a State known to be kept from the duress of an armed foe 
 only by a partial military protection. 
 
 ' House Reports Nos. 16, 17; 1 Bartlett, pp. 596, 597.
 
 § 382 ELECTORATES DISTRACTED BY CIVIL WAR. 331 
 
 The Senate declined to admit persons elected under the auspices of a 
 State government representing a portion only of the people in a State 
 menaced by hostile armies. 
 
 On May 21, 1864/ the credentials of Hon. William Fishback, claiming a seat 
 as a Senator from Arkansas, were presented in the Senate, and a motion was made 
 that the oath be administered to Mr. Fishback. The credentials were in regular 
 form, but a question was raised as to the status of the State of Arkansas. 
 
 On June 13,^ after long debate, the Senate referred the credentials of lilr. Fish- 
 back, and also of Hon. Elisha Baxter, also claiming a seat from Arkansas, to the 
 Committee on the Judiciary. 
 
 On Jime 27, 1864,^ the report was submitted to the Senate. It begins: 
 
 That the credentials presented are in due form, purporting to be under the seal of the State 
 of Arkansas, and to be signed by Isaac Murphy, governor thereof; and if the right to seats were to be 
 determined by an inspection of the credentials, Messrs. Fishback and Baxter would be entitled to be 
 sworn as members of this body. It is, however, admitted by the persons claiming seats, and known 
 to the countrj-, that, in the spring of 1861, the State of Arkansas, through its constituted authorities, 
 undertook to secede from the Union, set up a government in hostility to the United States, and main- 
 tain the same by force of arms. 
 
 The report then goes on to recite the liistory of secession, and then the later 
 reorganization of the State government by loyal citizens, citing the cases of Rob- 
 bins and Potter in the Senate, and the decision of the United States Supreme 
 Court in the case of Luther v. Borden as to the rule of recognition of State govern- 
 ments. The committee conclude: 
 
 The number of persons in Arkansas who voted for President in 1860 was 54,053, less than one-fourth 
 of whom, as appears from the statement of the claimants, took part in the reorganization of the State 
 government. This, however, would not be fatal to the reorganization, if aU who were loyal to the Union 
 had an opportunity to participate, and the State was free from military control. Such, however, is 
 understood not to have been the case. The President had not then, nor has he up to this time, recalled 
 his proclamation, which declared the inhabitants of Arkansas in a state of insurrection against the 
 United States, nor was there any e\'idence before the committee that said insurrection had ceased or 
 been suppressed. At the time when the body which chose the claimants was elected, when it assem- 
 bled, and at this time, the State of Arkansas is occupied by hostile armies, which exercises supreme 
 authority within the districts subject to their control. \Miile a portion of Arkansas is at this very time, 
 as the committee are informed, in the actual possession and subject to the control of the enemies of 
 the United States, other parts of the State are only held in subordination to the laws of the Union by 
 the strong arm of militarj- power. While this state of things continues, and the right to exercise armed 
 authority over a large part of the State is claimed and exerted by the military power, it can not be 
 said that a civil government, set up and continued only by the sufferance of the military, is that repub- 
 lican form of government which the Constitution requires the United States to guajantee to every 
 State in the Union. 
 
 When the rebellion in Arkansas shall have been so far suppressed that the loyal inhabitants thereof 
 shall be free to reestablish their State government upon a republican foundation, or to recognize the 
 one already set up, and by the aid and not in subordination to the military to maintain the same, they 
 will then, and not before, in the opinion of your committee, be entitled to a representation in Congress 
 and to participate in the administration of the Federal Government. Believing that such astate of things 
 
 > First session Thirty-eighth Congress, Globe, pp. 2392, 2458. 
 2 Globe, pp. 2895-2906; Senate Journal, p. 552. 
 nBartlett, p. 641.
 
 332 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 383 
 
 did not at the time the claimants were elected, and does not now, exist in the State of Arkansas, the 
 committee recommend for adoption the following resolution: 
 
 ''Resolved, That \A"illiam M. Fishback and Elisha Baxter are not entitled to seats as Senators from 
 the State of Arkansas." 
 
 On June 29/ after full debate, the resolution was agreed to, yeas 27, nays S. 
 
 383. The Senate election case of Willey and Carlile, from Virginia, 
 in the Thirty-seventh Congress. 
 
 From a State distracted by civil war the Senate admitted Senators 
 chosen by a legislature representing no more than a third or fourth of the 
 people. 
 
 The withdrawal of a Senator to join the foes of the Government was 
 held to create a vacancy which a legislature could recognize, although 
 the Senate had not expelled him. 
 
 Instance wherein the Senate gave immediate prima facie effect to 
 credentials from a de facto government in a State disturbed by civil war. 
 
 On July 13, 1861,^ in the Senate, Mr. Andrew Johnson, of Tennessee, presented 
 the following credentials: 
 
 Virginia, to wit: 
 
 The legislature of this State having, on the 9th day of July, 1861, in pursuance of the Constitution 
 of the United States, chosen Waitman T. Willey, esq., a Senator of this State, to fill the vacancy which 
 has happened by the withdrawal and abdication of James M. Mason, esq., I, Francis H. Pierpont, being 
 governor of the Commonwealth, do hereby certify the same to the Senate of the United States. 
 
 Given under my hand and the seal of the Commonwealth this 11th day of July, 1861. 
 
 [l. s.] Francis H. Pierpont. 
 
 Mr. Johnson also presented similar credentials certifying the election of John S. 
 Carlile, esq., as the other Senator from Virginia, to fill the vacancy caused by the 
 "withdrawal and abdication of Robert M. T. Himter, esq." 
 
 Mr. Johnson proposed that Messrs. Willey and Carlile take the oath at once, but 
 Mr. James A. Bayard, of Delaware, objected, and moved that the credentials be 
 referred to the Committee on the Judiciary for examination before the adminis- 
 tration of the oath. 
 
 It appeared from the ensuing debate that the Senate had recently, on July 11, 
 expelled Messrs. Mason and Hunter. But the election of Messrs. Willey and Carlile 
 had occurred on July 9, two days before the expulsion. Mr. Bayard made the point 
 that the legislatiu-e of Virginia, even if a valid legislature, might not create or assume 
 a vacancy. The Senate itself could expel, but the legislatvue could not. Neither 
 could the legislature determine that the charge of crime vacated the seats. Mr. 
 Bayard further objected that if, as he believed, Virginia was out of the Union, she 
 certainly should not have representation in the Senate. If she was in the Union 
 then the Senate must take cognizance of her laws and constitution, and under those 
 John Letcher, and not Francis H. Pierpont, was governor. The legislature which 
 had elected Messrs. Willej' and Carlile was only a portion of the real legislatiu'e of 
 Virginia. Mr. Lazarus W. Powell, Senator from Kentucky, stated that they repre- 
 sented not more than a fourth, or at most a third, of the people of Virginia. Only 
 
 ^ Globe, pp. 3360-3368; Senate Journal, p. 677. 
 
 -First session Thirty-seventh Congress, Globe, pp. 103-109.
 
 § 384 ELECTORATES DISTRACTED BY CIVIL WAR. 333 
 
 thirty or forty counties out of over one hundred and fifty were represented in the 
 legislature. This statement was not denied. 
 
 In opposition to these objections it was urged by Mr. Jolinson that in fact the 
 vax-ancies did exist on July 9. Both Mason and Hunter had withtlrawn from the 
 Senate, had abdicated before Jul}' 9. That fact was notoriotis, and the Senate's 
 resolution of expulsion on July 1 1 did not change that fact. Messrs. Jacob Collamer, 
 of Vermont, and L\Tnan Trumbull, of Illinois, urged that the resolution of expulsion 
 had relation to the time when Messrs. Mason and Hunter committed the criminal 
 act of withdrawing and joining the foes of the Government. And the legislature of 
 Virginia might take cognizance of that act as weU as they might of the death of a 
 Senator or a resignation. In the case of John F. Mercer the House of Representa- 
 tives had settled that the executive of a State might take cognizance of the resigna- 
 tion of a Representative and order a new election. 
 
 .^ to the second objection it was urged that the loyal portion of the people of 
 Virginia had a government which was at least the de facto government of the State; 
 and Messrs. "Willey and Carlile bore uncontested prima facie evidence of election 
 from that government. There was no evidence from any quarter that these gentle- 
 men were not the Senators-elect as their credentials purported to show. 
 
 Mr. Bayard's motion was disagreed to — yeas 5, nays .35. 
 
 Thereupon Messrs. Willey and Carlile appeared and took the oath. 
 
 384. The Senate election cases of Segar and Underwood, from Vir- 
 ginia, in the Thirty-eighth Congress. 
 
 The Senate declined to admit to a seat a person bearing uncontested 
 credentials of election by a legislature representing a small fraction of 
 the people in a seceding State. 
 
 On February' 17, 1865,' in the Senate, Mr. Waitman T. Willey, of West Virginia, 
 presented the credentials of Mr. Joseph Segar, as Senator-elect from the State of 
 Virginia, to fill the vacancy caused by the death of Lemuel J. Bowden, who had 
 been admitted to a seat as Senator from Virginia in 1S63, at the time that certain 
 counties of old Virginia had been organized and admitted to the Union as the new 
 State of West Virginia. The condition of affairs was briefly set forth at a later 
 day in a Senate report ^ submitted by Mr. George F. Hoar, of Massachusetts, in 
 relation to a claim by Mr. Segar for compensation: 
 
 On the 23d of February', 1863, Mr. Bowden was elected Senator for Virginia by the legislature 
 assembled at Wheeling, the great portion of Virginia, including Richmond, ils former seat of govern- 
 ment, being then in rebellion. He was admitted to his seat, the Senate thereby recognizing the legal 
 existence of the State he represented. West Virginia was then erected into a separate State. The 
 l^islature of Virginia assembled at .Uexandria and continued the functions of a State legislature of 
 Virginia. Mr. Bowden continued to represent Virginia in the Senate until his death, on the 2d of 
 Januarj', 1864. December 8, 1864, the petitioner was elected to succeed Mr. Bowden, and prosecuted 
 his claim with diligence. The Alexandria government was recognized as a valid State organization 
 by President Lincoln in his amnesty proclamation of December 8, 1863. It gave its constitutional 
 assent to the adoption of the thirteenth amendment of the Constitution of the United States, and it» 
 assent is treated by Mr. Seward in his proclamation announcing the adoption of the amendment aa 
 necessary thereto. 
 
 ' Second session Thirty-eighth Congress, Globe, pp. 845-849, 1433, 1434. 
 ^ Second session Forty-fifth Congress, Senate Report Xo. 509.
 
 334 PRECEDENTS OF THE HOUSE OF KEPRESENTATIVES. § 385 
 
 Mr. Charles Sumner, of Massachusetts, immediately upon the presentation of 
 the credentials, objected to the immediate administration of the oath and moved 
 that they be referred to the Committee on the Judiciary. Mr. Sumner urged that 
 the so-called legislature of Virginia was little more than a common council of the 
 city of Alexandria, while the greater part of Virginia was in armed resistance to 
 the Government, and the President of the United States had declared the people 
 of the State generally to be in insurrection. Certain counties, however, had been 
 excepted, as stated in the debate by Mr. Jonathan Doolittle, of Wisconsin: 
 
 The Presidential proclamation declaring the population of certain States to be in insurrection 
 excepted from its operation the counties of Alexandria city and county, Berkeley, Accomac, North- 
 ampton, Princess Anne, Norfolk, Norfolk city, Portsmouth city, and Elizabeth city and county, in 
 the State of Virginia, containing a population of over 175,000; and these counties are now represented 
 in the legislature at Alexandria. 
 
 In favor of the admission of Mr. Segar it was urged that the credentials were 
 sufficient on their face, and that the right of Virginia to representation had been 
 settled when Mr. Bowden was admitted to a seat. 
 
 Mr. Jolm Sherman, of Ohio, pointed out that the term for which Mr. Segar 
 had been elected would expire on March 4 next, and that it was hardly worth wliile 
 to delay the pressing public business to determine tlais question. He therefore 
 moved that the credentials lie on the table. This motion was agreed to — yeas 29, 
 nays 13. 
 
 On March 9, 1865,' on the first day of the special session of the Senate, Mr. 
 Jonathan Doolittle, of Wisconsin, presented the credentials of John C. Underwood 
 as Senator-elect from the State of Virginia for the term beginning March 4 instant. 
 
 Mr. Charles Sunmer, of Massachusetts, moved that the credentials be referred 
 to the Cormnittee on the Judiciary. 
 
 At this time the question of admission of Senators elected in Louisiana and 
 Arkansas was before the Senate, and in view of the doubt as to the future treat- 
 ment of the seceding States a motion to postpone the consideration of the creden- 
 tials to the next session of Congress was agreed to without division. 
 
 Neither Mr. Underwood nor Mr. Segar were ever admitted to a seat. 
 
 385. The Senate election case of Cutler and Smith, from Louisiana, in 
 the Thirty-eighth Congress. 
 
 The two Houses of Congress having by law declared the State of 
 Louisiana in a state of insurrection, the Senate in 1864 did not admit 
 persons hearing credentials therefrom. 
 
 On December 6,1864,^ the credentials of R.King Cutler and Charles Smith, as 
 Senators from Louisiana, were presented in the Senate. At the same time memorials 
 were presented containing the protests of citizens of Louisiana against their admis- 
 sion to the Senate. No proposition was made to administer the oath to the claimants, 
 but on December 8 the credentials were referred to the Committee on the Judiciary. 
 
 
 ' Second session Thirty-eighth Congress, Globe, pp. 1433, 1434. 
 nbid., pp. 5, 8.
 
 § 385 ELECTORATES DISTRACTED BY CIVIL WAR. 335 
 
 On February 18, 1865,' the committee reported, reviewing at length the condi- 
 tion of affairs in Louisiana and concludiag : 
 
 The persons in possession of the local authorities of Louisiana ha\-ing rebelled against the authority 
 of the United States, and her inhabitants having been declared to be in a state of insurrection in pur- 
 suance of a law passed by the two Houses of Congress, your committee deem it improper for this body 
 to admit to seats Senators from Louisiana, tiU by some joint action of both Houses there shall be some 
 recognition of an existing State government, acting in harmony with the Government of the United 
 States, and recognizing its authority. 
 
 Your committee therefore recommend for adoption, before taking definite action upon the right of 
 the claimants to seats, the accompanying joint resolution: 
 
 ' 'Resolved by the Senate mid House of Representatives of the United States of America in Congress assem- 
 bled. That the United States do hereby recognize the government of the State of Louisiana, inaugurated 
 under and by the convention which assembled on the 6th day of April, A. D. 1864, at the city of New 
 Orleans, as the legitimate government of said State, entitled to the guarantee and all other rights of a 
 State government under the Constitution of the United States." 
 
 The report was debated on Februarj^ 23. 24. and 25,^ but was not finally 
 acted on. 
 
 ' 1 Bartlett, p. 643. 'Globe, pp. 1011, lOGl, 1091, 1101.
 
 Chapter XI. 
 
 ELECTORATES IN RECONSTRUCTION/ 
 
 1. Members-elect from insurrectionary States not admitted on prima facie title. Sec- 
 
 tions 386-388.- 
 
 2. Case of the Georgia Members in 1869. Section 388. 
 
 3. Principles deduced from Senate decisions. Sections 389-396. 
 
 386. In the Fortieth Congress Members-elect from States lately in 
 secession were not admitted until a committee had examined their cre- 
 dentials, qualifications, and the status of their constituencies.^In 186S, 
 
 at the time of the reconstruction of the State governments of a number of the 
 States recently in secession, persons claiming to be elected Members of the House 
 appeared from the States of Arkansas, Florida, North and South Carolina, Ala- 
 bama, Louisiana, and Georgia.^ These persons bore credentials signed, some by 
 military authorities in command of the districts comprising the State,^ others 
 signed by the president of a constitutional convention.^ The House decided in 
 these cases to refer the credentials to the Committee on Elections before the Members- 
 elect were sworn in," in accordance with the precedent in the preceding Congress. 
 
 The Committee on Elections reported in these cases as to whether or not the 
 credentials were " in due form of law" and whether or not the States had conformed 
 to the laws of Congress.' Also, they reported as to the qualifications of the Member- 
 elect, especially as to whether or not his disabilities had been removed so that he 
 might take the oath.' 
 
 ' See also cases of Houston v. Broocks (sec. 644 of this volume) and Jacobs v. Lever, Myers v. Pat- 
 terson, and Prioleau v. Legare (sec. 1135 of Vol. II). 
 
 ^ See also cases of Segar (sec. 318 of this volume) and Jones v. Mann and Hunt v. Menard (sec. 326 
 of this volume). 
 
 ^ For references to these cases see p. cccxvi of the Index to the Congressional Globe, second session 
 Fortieth Congress. 
 
 ^Members of the House protested against Members " sent here by military force acting under a 
 brigadier-general," second session Fortieth Congress, Journal, p. 922; Globe, p. 3441. 
 
 'So Members from Alabama, Globe, p. 4294. 
 
 'Journal, p. 917; Globe, p. 3396. 
 
 'Globe, p. 4215. 
 
 'Globe, p. 4254. 
 
 336
 
 § 387 ELECTORATES IN EECONSTBUCTION. 337 
 
 387. In 1869 the House provided by resolution that the credentials 
 of persons claiming seats from certain States should be examined by a 
 committee before the oath should be administered. 
 
 The credentials of Members-elect who appear after the organization 
 are presented but are not examined by a committee before the oath is 
 administered, unless there be objection. 
 
 In 1870 the House declined to exclude a Member-elect for alleged 
 disloyalty in giving utterance to words indicating contempt for the 
 Government. 
 
 On December 6, 1869,' at the begimiing of the second session, after the roll of 
 Members-elect had been called by States and the presence of a quorum had been 
 announced, the Speaker invited Members-elect ^\^th credentials, whose right to 
 seats were unchallenged, to come forward and take the oath. 
 
 Mr. Halbert E. Paine, of Wisconsin, said that, as there was no law authorizing 
 the Speaker, Clerk, or other officer to inspect credentials presented after the House 
 was once organized, it seemed most proper that all credentials be referred to the 
 Committee on Elections for examination before the bearers should be sworn in. 
 
 The Speaker ^ said the usage had always been, when there was no objection, to 
 allow a Member to be sworn in without any further ceremony. The Chair did not 
 propose to administer the oath to any to whom objection might be made. 
 
 Members-elect to whom there was no objection were then sworn in. 
 
 Later in the day Mr. Paine presented the credentials of William Milnes, jr., 
 claiming a seat as a Member from the Sixth district of Virginia, and at the same time 
 offered the following resolution, which was agreed to by the House: 
 
 Resolved, That all credentials of persons claiming the right to represent the people of Virginia and 
 Mississippi in this House be referred, when presented, to the Committee of Elections. 
 
 In accordance with this resolution credentials were presented and referred, the 
 oath not being administered pending the investigation. 
 
 On Januan,- 27, 1870,^ Mr. Paine submitted from the committee a report finding 
 that six of the nine persons who presented certificates from Virginia, were entitled 
 to be sworn in, and submitted a motion that the oath be administered to them. 
 Objection being made to one of the six, Mr. Charles H. Porter, he stepped aside 
 until the oath was administered to the others. The question recurring as to admin- 
 istering the oath to Mr. Porter, Mr. Fernando Wood, of Xew York, presented the 
 record of a trial by a military' conunission whereby Mr. Porter had been pimished, 
 after conviction, for declaring that — 
 
 This Government is all a humbug from beginning to end, etc. 
 
 After debate the motion to administer the oath to Mr. Porter was agreed to, 
 but immediately Mr. William S. Holman, of Indiana, moved to reconsider. There- 
 upon a debate arose, partisan in nature, which reviewed the exclusion of the 
 Kentucky Members on charges of disloyalty. Finally the motion to reconsider 
 
 ' Second session Forty-first Congress, Journal, pp. 22, 23; Globe, pp. 9, 15. 
 ^ Schuyler Colfax, of Indiana, Speaker. 
 ^Globe, pp. 822-828. 
 
 5994— VOL 1—07 22
 
 338 PBECEDENTS OF THE HOUSE OF REPBESENTATIVES. § 388 
 
 was laid on the table — yeas, 167; nays, 4. Thereupon Mr. Porter appeared and 
 took the oath. 
 
 The three other claimants to seats presented cases requiring further examina- 
 tion, involving questions as to prima facie ami final right that are considered on 
 other pages. 
 
 388. The election case of the Georgia Members in the Forty-first 
 Congress. 
 
 The House decided in 1869 that a person might not, by virtue of one 
 election, sit as a Member of the House in two Congresses. 
 
 The Clerk declined to enroll claimants bearing credentials referring 
 to an election by virtue of which, the said claimants had already held seats 
 in the preceding Congress. 
 
 Instance wherein a constitutional convention in a State undergoing 
 reconstruction authorized the election of Members of Congress in antici- 
 pation of the sanction of Federal law. 
 
 Instance wherein, during the reconstruction period, credentials were 
 issued to Members-elect by a military commander. 
 
 On March 5, 1869,' when the House of Representatives organized the names 
 of no persons as Members-elect from the State of Georgia were included in the 
 roll called by the Clerk. 
 
 It appeared that certain persons had appeareil bearing credentials of the 
 governor of Georgia, under seal of the State, and in due form setting forth: 
 
 Whereas the convention of the people of this State, held under the reconstruction acts of Congress, 
 passed an ordinance dated 10th of March, 1868, which ordained that an election be held, beginning 
 on the 20th day of April, 18G8, for Representatives to the Congress of the United States; and whereas 
 the returns made agreeably to said ordinance show that you received the highest number of votes for 
 Representative from the Second Congressional district of this State; and whereas it is my duty under 
 the laws of Georgia to commission the persons legally elected. 
 
 These are therefore to commission you, the said Nelson Tift, to take session in the House of Rep- 
 resentatives of the United States in accordance with said election under said ordinance, a copy of 
 which is hereunto annexed, and to use and exercise all and every the privileges and powers which by 
 right you may or can do, under and by virtue of the Constitution, in behalf of this State. 
 
 This credential was dated November 24, 1868. 
 
 The ordinance, which was annexed to the credentials, provided that the per- 
 sons elected at the election of April 20, 1868 (at which the constitution was voted 
 on, and which was conducted under direction of the commanding general of the 
 military district including Georgia) — 
 
 shall enter upon the duties of the several offices to which they have been respectively elected when 
 authorized so to do by acts of Congress or by the order of the general commanding, and shall continue 
 in office till the regular session provided for after the year 1868 and until successors are elected and 
 qualified, so that said officers shall each of them hold their offices as though they were elected on the 
 Tuesday after the first Monday in November, 1868, or elected or appointed by the general aaaembly 
 next thereafter. 
 
 In the debate it was stated that while the Clerk was technically right in not 
 putting the names of the persons on the roll, the House was not bound by so strict 
 
 'First session Forty-first Congress, Journal, pp. 5, 14; Globe, pp. 16-18.
 
 § 388 ELECTORATES IN RECONSTRUCTION. 339 
 
 technical rule. It appeared from the debate that the same persons, by virtue of 
 the election in question, had taken seats in the preceding Congress, the Fortieth. 
 
 The House, m the perplexities caused by this state of facts abandoned a 
 resolution providing for the swearing in of the persons named, and agreed to this 
 resolution: 
 
 Resolved, That the credentials and papers of J. W. Clift, Nelson Tift [mentioning others], claiming 
 seats as Members of the House of Representatives from the State of Georgia, be referred to the Commit- 
 tee of Elections, when appointed, with directions to report to the House whether their papers present 
 a prima facie right to their seats. 
 
 On January 28, 1870,' Mr. John C. Churchill, of New York, from the Com- 
 mittee on Elections, submitted the report. The report first states fully the facts 
 m connection with the case: 
 
 In November, 1867, under the reconstruction acts of Congress, members of a convention to form 
 a constitution of the State of Georgia were elected. This convention convened on the 9th day of 
 December, 1867, and proceeded with the only duty which, under those acts, they had to perform, 
 and on the 11th of March, 1868, they adopted a constitution to be submitted to the people under the 
 acts above referred to. 
 
 On the 11th of March, 1868, Congress passed an act, the second section of which reads as follows: 
 
 "Sec 2. And he it further enacted, That the constitutional convention of any of the States mentioned 
 in the acts to which this is amendatory may provide that at the time of voting upon the ratification 
 of the constitution, the registered voters may vote also for Members of the House of Representatives of 
 the United States, and for all elective officers provided for by the said constitution ; and the same election 
 officers who shall make the return of the votes cast on the ratification or rejection of the constitution 
 shall enimierate and certify the votes cast for Members of Congress." 
 
 Under the authority of this section, although anticipating its passage, the convention on the 10th 
 of March, 1868, adopted an ordinance which provided that an election should be held, beginning on 
 the 20th of April, 1868, "for voting on the ratification of the constitution, and for governor, members 
 of the general assembly, Representatives to the Congress of the United States, and all other officers to 
 be elected as provided in the constitution." It was further provided "that the persons so elected 
 shall enter upon the duties of the several offices to which they have been respectively elected, when 
 authorized so to do by acts of Congress or by the order of the general commanding; and shall continue 
 in office till the regular succession provided for after the year 1868, and until successors are elected 
 and qualified; so that said officers shall each of them hold their offices as though they were elected on 
 the Tuesday after the first Monday of November, 1868, or elected or appointed by the general assembly 
 next thereafter." 
 
 General Meade was further requested by the same ordinance to cause due returns to be made, and 
 certificates of election to be issued by the proper officers. Under this ordinance an election was held, 
 beginning on the 20th April, 1868, at which Representatives in Congress were voted for in the several 
 congressional districts, each voter so voting depositing but a single ballot, on which was inscribed 
 "for Representative in Congress," with the name of the person for whom he voted. At this time 
 there was no act of Congress in existence giving representation in Congress to Georgia, and therefore 
 no time when, by the terms of the above ordinance, the terms of the persons so voted for could commence. 
 
 On the 25th of June, 1868, Congress passed a law which declared that Georgia should be entitled 
 and admitted to representation in Congress when the legislature of the State should have duly ratified 
 article fourteen of the amendments to the Constitution, and should also have given the assent of the 
 State to certain fundamental conditions specified in the act; and the President was required, within 
 ten days after the receipt of official intelligence of the fact, to issue a proclamation announcing the 
 ratification by the legislature of the fourteenth amendment. 
 
 On the 1st of July, 1868, General Meade issued certificates of election to the several persons who 
 had received a majority of votes for Representative in Congress in their respective districts, which 
 certificate, for the First Congressional district, was in the following form: 
 
 ' Second session Forty-first Congress, House Report No. 16; 2 Bartlett, p. 596.
 
 340 PRECEDENTS OF THE HOUSE OF EEPKESENTATIVES. § 388 
 
 "Headquarters Third Military District, 
 
 "(Georgia, Florida, and Alabama.) 
 "From the returns made to these headquarters by the boards of registration of the election held in 
 the State of Georgia for civil officers of said State, and for Members of Congress, under the provisions of 
 General Order, No. 40, issued from these headquarters, which election commenced on the 20th day of 
 April and continued four days, il is hereby certified that it appears that in said election J. W. Clift received 
 a majority of the votes cast for a Representative to the Congress of the United States from the First Con- 
 gressional district in said State of Georgia. 
 
 "George G. Meade, 
 "Major-General, U. S. A., Commanding. 
 "Atlanta, Ga., July 1, 1S6S." 
 
 The certificates were similar in form, with changes only of the name of the person certified to be 
 elected. 
 
 The convention adjourned on the 11th March, 1868, the constitution providing that the general 
 aj?sembly should meet within ninety days of the adjournment of the convention, and annually there- 
 after on the second Wednesday in January, or on such other day as the general assembly might provide. 
 This last fact is important, since it has been claimed before the committee that, under the constitution 
 of Georgia, no election for Members of Congress could be held until the year 1870. The clause of the 
 constitution so referred to is as follows — article 2, section 11: 
 
 The election of governor. Members of Congress, and the general assembly, after the year 1868, shall 
 commence on the Tuesday after the first Monday in November, unless otherwise provided by law. 
 
 But this puts no limitation whatever upon the powers of the general assembly to regulate the time 
 and frequency of elections, and, taken in connection with the general grant of power to the general 
 assembly (article 3, section 5, 1) to pass any law consistent with the constitution they might deem nec- 
 essary to the welfare of the State, gave them full control of the subject; and the convention having 
 required the general assembly to meet within ninety days of their own adjournment, and also on the 
 second Wednesday of the following January, the fullest opportunity was given to the latter to provide 
 by further legislation, if necessary, for the proper representation of the State in Congress. 
 
 On the 8th of July, 1868, the general assembly of Georgia organized, and soon after ratified the four- 
 teenth amendment and assented to the fundamental conditions mentioned in the amendatory recon- 
 struction act of June 25, 1868; and the President thereupon, on the 27th day of July, 1868, issued his 
 proclamation of the fact of such ratification. The Members-elect from Georgia thereupon, in July, 1868, 
 presented their certificates of election received from General Meade, and, so far as eligible, were thereon 
 admitted to seats in the Fortieth Congress. 
 
 Afterwards, in November, 1868, thegovemor of the State issued commissions to each of these parties, 
 based upon the same election. 
 
 The report goes on to say that the commission of the governor as evidence of 
 the election is unauthorized, General Meade having been the only person authorized 
 by the ordinance to issue certificates of election. The commission issued by the 
 governor of Georgia referred to the same election as did the certificate issued by 
 General ileade and conferred no additional powers. By the election of April 20, 
 1868, Georgia became entitled to representation immediately upon comphance with 
 certain conditions. Those conditions were complied with in time for the Repre- 
 sentatives to be admitted to the Fortieth Congress. It was absurd to say that the 
 right to immediate representation would be satisfied by admission to the Forty-first 
 Congress. The committee concludes: 
 
 The action of the persons elected, as well as of the House, was in entire harmony with this view. 
 Immediately upon the compliance of Georgia with the required conditions, their members presented 
 themselves and the House received them as Representatives from that State. 
 
 It is too late for these claimants to deny that their election entitles them to sit in the Fortieth Con- 
 gress. Their own action has estopped them from such denial, and unless they can show themselves 
 entitled by the election of April 20, 1868, to hold for two terms the force of their election is exhausted.
 
 § 389 ELECTORATES IX KECONSTRUCTION. 341 
 
 The action o. i,ne people in voting for them as Representatives in Congress, and their certificates of 
 election as such Representatives, have been fuOy answered by admitting them as such Representatives 
 to the Fortieth Congress. Xor was it a matter of choice with these men whether they should present 
 themselves for admission to the Fortieth or to the Forty-first Congress. By the ordinance of the conven- 
 tion under which this election was held, and the law of Congress of June 25, 1868, they were to enter upon 
 the duties of their ofiice whenever the State o' Georgia had complied with the conditions mentioned in 
 the last-mentioned act. These conditions were complied with dtu-ing the following month of July, 
 1868, and therefore it became the duty of these men to enter upon the duties of the office to which they 
 had been chosen. This they did, and became Members of the House of Representatives of the Fortieth 
 Congress, and acted as such during the closing days of the second session of that Congress and for the 
 remainder of the term of its existence. 
 
 Having taken their seats as Members of the Fortieth Congress, it was not in the power of the conven- 
 tion of Georgia to extend their term so as to include the Forty-first Congress. The ofiice of Representa- 
 tive to the Fortieth Congress is entirely distinct from that of Representative in the Forty-first Congress, 
 and made so by the Constitution of the United States. 
 
 It is not pretended that there was anything in the conduct of the election of April 20. 1868, or in the 
 action of the voters, which indicated a purpose to choose for more than a single Congress, and the ordi- 
 nance of the convention can not affect the result. Indeed an examination of the ordinance will show 
 that it was the State officers, and not Members of Congress, the duration of whose offices was attempted 
 to be regulated by that act. 
 
 The conclusion of the committee, therefore, is that the force of the election of April 20, 1868, was 
 exhausted when these gentlemen were admitted Members of the Fortieth Congress, and they therefore 
 recommend the adoption of the following resolution: 
 
 "Resolved, That the claimants to seats in the Forty-first Congress of the United States from the 
 State of Georgia, under the election held in that State on the 20th day of April, 1868, are not entitled to 
 such seats." 
 
 On January 28, 1870,^ the report was explained, but not opposed, and the 
 resolution was agreed to without division. 
 
 389. The Senate election case of Jones and Garland v. McDonald and 
 Rice, from Arkansas, in the Fortieth Congress. 
 
 A State having been in secession, the Senate admitted as Senator the 
 person chosen after the State had conformed to conditions prescribed by 
 law. and refused to admit one chosen prior to such conformity. 
 
 Instance wherein the Senate gave immediate prima facie effect to 
 informal credentials, although other claimants presented credentials tech- 
 nically conforming to law. 
 
 Instance wherein the Senate admitted persons chosen before Con- 
 gress had admitted a reconstructed State to representation. 
 
 From the outbreak of the civil war until 1868 the State of Arkansas was without 
 representation in the Senate of the United States. On November 24, 1866, the 
 legislature of Arkansas elected as Senators John T. Jones for the vaeancy in the term 
 beginning March 4, 1865, and Augustus H. Garland for the term commencing March 
 4, 1867. Neither of these Senators-elect were admitted; but by the act of July 19, 
 1867,' Congress declared the governments then existing in several Southern States, 
 including Arkansas, illegal. Previously, by the law of March 2, 1867,^ Congress 
 had prescribed the conditions on which the States lately in secession might be read- 
 
 ' Journal, p. 222; Globe, pp. 853, 854. - 15 Stat. L., p. 14. ^ 14 gjat. L., p. 428.
 
 342 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 389 
 
 mitted to representation, but leaving it for a future law to eflfect such readmission. 
 Arkansas proceeded, under the law of March 2, 1867, to form a new State govern- 
 ment, and the legislature of that new government on April 15, 1868, chose two 
 Senators, Alexander McDonald for the term beginning March 4, 1865 (that for 
 which Mr. Jones had been elected), and Benjamin F. Rice for the term beginning 
 March 4, 1867 (that for which Mr. Garland had been elected). But it was not until 
 June 22, 1868,' that Congress by law formally admitted Arkansas " to representa- 
 tion in Congress as one of the States of the Union." So Messrs. McDonald and Rice 
 were chosen before Arkansas was actually admitted. 
 
 On Jime 23, 1868,^ the day after the act of admission had become a law, Mr. 
 John M. Thayer, of Nebraska, presented the credentials of Messrs. McDonald and 
 Rice in the Senate. They were in form as follows: 
 
 State of Arkansas, to wit: 
 
 The general assembly of the State, assembled under the provisions of section 2 of Article V of the 
 constitution as adopted by the convention on the 11th day of February, A. D. 1868, a copy of which 
 is hereto annexed, having, on the 15th day of April, A. D. 1868, in pursuance of an act of Congress entitled 
 "An act to regulate the times and manner of holding elections for Senators in Congress," approved July 
 25, 1866, chosen Benjamin F. Rice a Senator of the United States for the term ending on the 4th day of 
 March, A. D. 1873. 
 
 Therefore we, John N. Sarber, president pro tempore of the senate, and John G. Price, speaker of 
 the house of representatives, do hereby certify the same to the Senate of the United States. 
 Given under our hands, this 15th day of April, A. D. 1868. 
 
 John N. Sarbbr, 
 President Senate pro tempore. 
 John G. Price, 
 Speaker Ilouse of Representatives. 
 
 As soon as these credentials had been read, Mr. Garrett Davis, of Kentucky, 
 offered the credentials of Messrs. Jones and Garland, which were in regular form, 
 signed by " Isaac Murphy, governor," attested by the seal of the State, and counter- 
 signed by the secretary of state. 
 
 Mr. Davis claimed that this title was the older and, from the standpoint of prima 
 facie authority, the better. He also contended that constitutionally Messrs. Jones 
 and Garland had the better title ; and proposed a reference of all the credentials to 
 the Judiciary Committee for investigation. 
 
 Mr. Davis's proposition was not taken seriously by the majority of the Senate, 
 who considered the reconstruction legislation as conclusive on this point. 
 
 But Mr. Lyman Trumbidl, of Illinois, suggested two questions on which there 
 was extended debate: 
 
 (1) That the credentials of Messrs. Rice and McDonald were signed only by the 
 president pro tempore of the senate and speaker of the house, whereas the law of 
 July 25, 1866^ provided: 
 
 That it shall be the duty of the governor of the State from which any Senator shall have been chosen 
 as aforesaid to certify his election, under the seal of the State, to the President of the Senate of the 
 United States, which certificate shall be countersigned by the secretary of state of the State. 
 
 ' 15 Stat. L., p. 72. 
 
 ^ Second session Fortieth Congress, Globe, pp. 3.384-3389. 
 
 ^ 14 Stat. L., p. 244.
 
 § 390 ELECTORATES IN RECONSTRUCTION. 343 
 
 (2) That Messrs. Rice and McDonald had been chosen before Congress had 
 admitted Arkansas to representation. 
 
 As to the first point, it was explained that the governor had not given credentials 
 because the legislature did not recognize the old governor and the new governor 
 was not in possession of the office and was simply a governor-elect. Wliile admit- 
 ting the informality of the credentials, the general opinion of the Senate seemed to 
 concur in the views expressed by Messrs. Oliver P. Morton, of Indiana, and Reverdy 
 Johnson, of Maryland, tliat the law was -merely directory as to the governor and 
 that the authentication of the credentials in this case was sufficient. Mr. Johnson, 
 however, thought it well that the credentials should be referred to a committee, 
 that a general rule might be established for the future. 
 
 As to the second point, Mr. Trumbull recalled that it had been an established 
 practice for new States to organize and elect Senators before their admission to the 
 Union. And when Congress subsequently recognized the State government it had 
 been construed to have relation back to the time when the organization took place 
 and the Senators had been admitted to their seats. Mr. Johnson, in support of this 
 view, recalled the case of California. 
 
 Mr. Davis, insisting on liis view that Messrs. Jones and Garland were the only 
 constitutionally elected Senators, moved that the credentials be referred to the 
 Judiciary Committee; but the motion was negatived without division. 
 
 Then the motion that Messrs. Rice and McDonald be sworn was agreed to; 
 and they appeared and took the oath. 
 
 390. The Senate election case of Marvin v. Osborn, from Florida, in 
 the Fortieth Congress. 
 
 A State having been in secession, the Senate admitted as Senator the 
 person chosen after the State had conformed to conditions prescribed by 
 law and refused to admit one chosen prior to such conformity. 
 
 Instance wherein immediate prima facie effect was given to creden- 
 tials of a Senator-elect from a reconstructed State. 
 
 On June 30, 1868,' in the Senate, Mr. Timothy O. Howe, of Wisconsin, presented 
 the credentials of Thomas W. Osborn, as Senator from Florida to fill the term expir- 
 ing on March 3, 1873. Florida had been without representation since the secession 
 of the State; but Congress, by the act of July 25, 1868, had provided that Florida 
 and certain other secession States should be admitted to representation when they 
 should have compHed with certain conditions. 
 
 Mr. Howe also presented, as evidence that the State had complied with the 
 conditions, her ordinances ratifying the thirteenth and fourteenth amendments to 
 the Constitution of the United States. 
 
 The credentials of Mr. Osborn showed his election on June 18, 1866, and that it 
 was in accordance with the act of July 25, 1866. The State had completed the 
 ratification of the amendments on June 11, 1868, seven days prior to Mr. Osborn's 
 election. 
 
 While Mr. Osborn's credentials were under consideration Mr. Jonathan Doolittle, 
 of Wisconsin, offered credentials signed by David S. Walker as governor of Florida, 
 
 ' Second session Fortieth Congress, Globe, pp. 3598-3607.
 
 344 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 391 
 
 dated November 30, 1866, and showing the election of William Marvin as Senator 
 on November 28, 1866, a considerable time before the ratification of the amendments. 
 
 Mr. Doolittle contended that Florida had never been out of the Union; that 
 as soon as the power of the secession armies vanished she became entitled to repre- 
 sentation again, and that as Mr. Marvin had always been a loyal man he should be 
 seated. For this reason Mr. Doolittle opposed the pending motion, which was that 
 the oath be administered to Mr. Osborn. 
 
 A considerable diversity of opinion arose as to whether the case should not be 
 referred to the Judiciary Committee for examination before the administration of 
 the oath. This appears not to have been because Mr. Marvin's claim was generallj' 
 treated as serious, but because of doubts as to whether the act of the legislature of 
 Florida in ratifying the amendments had been properly conducted and authenticated. 
 
 Finally, by a vote of yeas 34, nays 6, the motion that Mr. Osborn be permitted 
 to take the oath was agreed to. 
 
 391. The Senate election case of Whiteley and Farrow v. Hill and 
 Miller, from Georgia, in the Fortieth and Forty-first Congresses. 
 
 The Senate declined to give prima facie effect to credentials impeached 
 by charges that a State was not fulfilling in good faith the conditions of 
 reconstruction. 
 
 The Senate finally seated persons elected by a legislature in a recon- 
 structed State, although after the intervention of Congress other persons 
 had been elected. 
 
 Instance wherein a special law was passed prescribing the form of 
 oath to be taken by a Senator-elect. 
 
 On December 7, 1868,' in the Senate, Mr. John Sherman, of Ohio, presented 
 the credentials of Joshua Hill, Senator-elect from the State of Georgia, to serve the 
 unexpired term ending March 4, 1873. 
 
 At this time Georgia was without representation in the Senate. By the act of 
 Congress of June 25, 1868, the provisional governor of Georgia, Rufus B. Bullock, 
 appointed as such on July 4, 1868, by General Meade, military commander of the 
 district, called a provisional legislature, which convened on July 20. Mr. Hill was 
 elected on July 28. 
 
 As soon as Mr. Hill's credentials were read to the Senate, ^Mr. Charles D. Drake, 
 of Missouri, objected to the administration of the oath of office, and moved that 
 the credentials be referred to the Committee on the Judiciary. The reason for the 
 objection appeared in two papers presented to the Senate at this time — the first, a 
 letter from Governor Bullock, alleged that certain persons lacking the qualifications 
 of loyalty had been permitted to take seats in the legislature, contrary to the letter 
 and spirit of the law of Congress; and second, a memorial of colored citizens of 
 Georgia, reciting that the white members of the legislature had expelled from that 
 body 29 duly elected members because they were persons of color and, as Avas 
 claimed, ineligible to office under the constitution and laws of Georgia. It appeared 
 that this act of expulsion occurred after Mr. Hill had been elected Senator, and Mr. 
 Sherman urged that it should not be charged against him. 
 
 ' Third session Fortieth Congress, Globe, pp. 1-5.
 
 § 391 ELECTORATES IN BECONSTKDCTION. 345 
 
 But Mr. John M. Thayer, of Nebraska, and others urged that the neglect of the 
 legislature to purge itself of disloyal men cast suspicion on the effectiveness of the 
 reconstruction of the State, and that Senators should not be admitted while this 
 doubt existed, in spite of the fact urged by Mr. Sherman that Georgia had been 
 recognized by the Senate and House of Representatives as a State in the Union. 
 
 On December 10,' on motion of Mr. Sherman, the credentials were referred to 
 the Committee on the Judiciary, no attempt being made to have the oath adminis- 
 tered to ilr. Hill at this time. 
 
 On January 11, 1869,^ ilr. Lyman Trumbull, of Illinois, presented the creden- 
 tials of H. V. M. Miller, Senator-elect from Georgia, to fill the unexpired term com- 
 mencing March 4, 1865. These credentials were referred to the Judiciary Commit- 
 tee without question, no proposition to administer the oath being made. 
 
 On January 25^ Mr. William M. Stewart, of Nevada, presented the report of 
 the committee on the case of Mr. Hill. Apparently Messrs. George F. Edmunds, 
 of Vermont, and Benjamin F. Rice, of Arkansas, concurred with Mr. Stewart in the 
 report, while Messrs. Roscoe Conkhng, of New York, and Frederick T. Frehnghuysen, 
 of New Jersey, concurred in the conclusion of the report, that Mr. Hill should not 
 be seated. Mr. Lyman Trumbull, of Illinois, submitted minority views favorable 
 to the seating of !Mr. Hill, and the remaining member of the committee, Mr. Thomas 
 A. Hendricks, of Indiana, dissented from the majority conclusion, but did not pre- 
 sent views. 
 
 In the report of the majority the condition of affairs in Georgia is thus set forth: 
 
 On the 21st of May, 1868, the President transmitted to Congress a proposed constitution for the State 
 of Georgia, which had been framed by a convention assembled under the reconstruction acts of Congress 
 and ratified by the people. On the 25th June following Congress passed an act which, among other 
 things, provided for the admission of Georgia to representation upon compliance with certain conditions 
 therein named, the most important of which was that the legislature of Georgia should duly ratify the 
 amendment to the Constitution of the United States known as the fourteenth amendment. The act 
 further provides that after compliance with the required conditions "the officers of said State duly 
 elected and qualified under the constitution hereof shall be inaugurated without delay; but no person 
 prohibited from holding office under the United States or any State by section 3 of the proposed amend- 
 ment to the Constitution of the United States known as article 14 shall be deemed eligible to any office 
 in said State unless relieved from disability as provided in said amendment." 
 
 The obvious design of this provision was to prevent the new organization from falling under the 
 control of enemies of the United States, so as to defeat the reconstruction of the State. 
 
 The right of Mr. Hill (if regularly elected) to a seat in the Senate depends upon three important 
 considerations: 
 
 First. Did the legislature of Georgia, regularly organized in accordance with the Constitution of 
 the United States, the laws of Congress, and the constitution of Georgia, duly ratify the fourteenth amend- 
 ment and comply with the various conditions imposed by the act of June 25, 1868? 
 
 Second. Have the legislature and people of Georgia, subsequent to such compliance with said acts 
 of Congress, committed such acts of usurpation and outrage as to place the State in a condition unfit to 
 be represented in Congress? 
 
 Third. Whether, on the whole case, taking the action of Georgia both before and since the pre- 
 tended ratification of the fourteenth amendment, a civU government has been established in that 
 State which Congress ought to recognize? 
 
 These questions must be answered by the law and the facts. 
 
 ' Globe, p. 43. 
 
 2 Globe, p. 273. 
 
 ' Globe, p. 568, Senate Report No. 192, third session Fortieth Congress.
 
 346 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 391 
 
 After reviewing the failure of the legislature to purge itself of disloyal members, 
 the report continues: 
 
 Your committee are of opinion that the act of June 25, 1868, which required that the constitu- 
 tional amendment should be duly ratified, must be held to mean that it must be ratified by a legislature 
 which has in good faith substantially complied with all the requirements of law providing for its organi- 
 zation. It is true that, after this pretended investigation by the two houses of the eligibility of their 
 members, the district commander recognized the validity of their proceedings and permitted the State 
 officers to be inaugurated and the State government to go into operation. On the 21st day of July the 
 legislature passed a resolution of ratification of the fourteenth amendment and the other resolution 
 required by the act of June 25, 1868. 
 
 On the 28th of July, 1868, the legislature went into joint convention for the election of United 
 States Senators. Joshua Hill received 110 votes; Joseph E. Brown, 94 votes, and A. H. Stevens, 3 votes, 
 whereupon Mr. Hill was declared elected United States Senator for the term ending March 3, 1873. 
 
 It is quite probable that Mr. Hill received votes of persons who were not qualified to hold seats in 
 the legislature more than sufficient to constitute his majority and secure his election, but yoiu- committee 
 do not propose to investigate that question. The election and qualification of members of the legisla- 
 ture, where the existence of any legislature authorized to act as such is not involved, can not be inquired 
 into by the Senate in determining the right of a Senator to his seat. Your committee holds that the 
 question involved in this case is not whether persons not entitled to seats in the legislature were received 
 by that body and allowed to vote upon the election of a Senator, but whether the body assuming to be 
 the legislature violated the conditions upon which it was allowed to organize by permitting disloyal per- 
 sons to participate in its proceedings. It may be contended that although the matters hereinbefore set 
 forth constitute a faUure on the part of the State of Georgia to comply in every respect with the recon- 
 struction acts, yet Congress ought to waive these slight departures and admit their representatives. But 
 an examination into the subsequent proceedings of the legislature of Georgia, and the disorganized con- 
 dition of society in that State, leads your committee to the conclusion that all these violations of law 
 were in pursuance of a common purpose to evade the law and resist the authority of the United States. 
 
 The report next recites the expulsion of the colored members of the legislature, 
 and says : 
 
 Your committee are of opinion that under the constitution of Georgia there is no distinction in 
 the right to hold office on account of race or color, and they are quite confident that such was the 
 opinion of Congress at the time it approved that constitution. 
 
 This act of injustice and oppression denied the right of representation of a whole race, constituting 
 nearly one-half of the people of Georgia. It will not be contended that there is no power in this Govern- 
 ment to restrain in some form an outrage of this character. It certainly furnishes a strong reason why 
 Congress should not at this time overlook the irregularities in the organization of the legislature of 
 Georgia and admit her Senators to representation. And this is not all. Your committee have examined 
 the official reports of the various officers connected with the Freedmen's Bureau in Georgia, and find 
 reported 336 cases of murders and assaults with intent to murder upon colored persons by the whites, 
 from January 1, 1868, to Novemlier 15 of same year. For all of which there has been no legal redress 
 and scarcely any effort whatever on the part of the authorities to punish the criminals. And it is stated 
 by these officers that they are unable to report fully as to the number and character of these outrages 
 on account of intimidation of witnesses, which is practiced by the perpetrators of crime. Your com- 
 mittee have no source of official information as to outrages committed upon loyal whites, but it is repre- 
 sented by various and numerously signed petitions and memorials from the loyal people of Georgia 
 that they are constantly exposed to violence, and are without protection of law. It is a matter of public 
 notoriety that loyal white men are persecuted, murdered, and driven from their homes. Several mem- 
 bers of the legislature have been compelled to take refuge at the capital of the State where the national 
 troops are stationed to avoid the violence of the enemies of the United States. The unlawful and vin- 
 dictive conduct of the legislature tend to confirm these statements and reports, and exclude all hope 
 that the new civil government will afford adequate protection to life and property. Since the with- 
 drawal of the military, crime has greatly increased while punishment for crime has diminished.
 
 § 391 ELECTORATES IN RECONSTRUCTION'. 347 
 
 And the report concludes : 
 
 Wherefore your committee feel called upon to recommend that Mr. Hill be not allowed to take 
 a seat in the Senate for the reason that Georgia is not entitled to representation in Congress, and submit 
 the accompanjdng resolution. 
 
 '■Resolved, That Joshua Hill, claiming to be Senator-elect from Georgia, ought not now to be per- 
 mitted to take a seat in this body." 
 
 Mr. Trumbull favored the seating of Mr. Hill, saying in minority views : 
 
 The undersigned, being unable to agree with the majority of the committee in their report upon 
 the credentials of Joshua HUl, claiming to have been duly elected and entitled to a seat in the Senate 
 from the State of Georgia, begs leave to present the reasons for his dissent. That HUl possesses all the 
 qualifications for a Member of the Senate of the United States required by the Constitution ; that he is 
 one of the few prominent men residing in a rebel State who remained true to the Union during the 
 war; that he is now and has been at all times thoroughly loyal to the Union; that he is in everj- respect 
 personally unobjectionable; that he was duly elected by the legislature of Georgia, and that his cre- 
 dentials are in due form is not questioned by anyone. If he is not entitled to his seat, it must be 
 either because the State of Georgia was not in a condition to entitle her to representation at the time 
 of his election or because the body which elected him was not the legislature of that State. 
 
 The former of these propositions, whether Georgia was or is in a condition to entitle her to repre- 
 sentation, is not a question for the Senate to decide. The unfortunate disagreement which has existed 
 for some years between the President and Congress has, in part, been owing to a disagreement upon 
 this very point, the President insisting that it was for each House of Congress to determine for itself 
 in the admission of Members whether a State was entitled to representation, and Congress insisting 
 that it was for Congress to determine in the first instance whether a State was entitled to representation, 
 and that question being affirmatively settled it was then for each House to judge for itself of the election, 
 returns, and qualifications of its own Members. This controverted point was settled by Congress in 
 March, 1866, by the passage through both Houses of the following concurrent resolution: 
 
 " Resolved hy the House of Representatives {the Senate coTU-urring), That, in order to close agitation 
 upon a question which seems likely to disturb the action of the Government, as well as to quiet the 
 uncertainty which is agitating the minds of the people of the eleven States which have been declared 
 to be in insurrection, no Senator or Representative shall he admitted into either branch of Congress 
 from any of said States until Congress shall have declared such State entitled to such representation." 
 
 The reconstruction acts, since indorsed by the people at a popular election, declare that "until 
 the people of said rebel States shall be by law — not by the action of each House — admitted to repre- 
 sentation in the Congress of the United States, any civil governments which may exist therein shall 
 be deemed pro\Tsional only;" which is equivalent to a declaration that when admitted to representation 
 by law they shall be no longer pro%'isional. 
 
 The supplementary act of March 23, 1867, declares that when the requirements of the reconstruction 
 acts shall have been complied with by any of the rebel States in the formation of a constitution, and 
 "said constitution shall be approved by Congress, the State shall be declared entitled to representation, 
 and Senators and Representatives shall be admitted therefrom, as therein provided." This action of 
 Congress, indorsed by the people, determined that neither House of Congress was authorized by itself to 
 admit Senators or Representatives from any of the rebel States till Congress should determine by law 
 that such State was entitled to representation. The converse of the proposition was also equally deter- 
 mined — that it would be the duty of each House to admit duly elected and qualified Senators and Repre- 
 sentatives from each of said States whenever Congress shall have determined by law that such State 
 was entitled to representation. 
 
 After quoting the act of June 25, 1868, and other documents, Mr. Trumbull 
 continues : 
 
 The foregoing extract, together with copies of official correspondence between Major-General Meade 
 and General Grant, hereto attached, establish the fact that the legislature of Georgia fully complied 
 with the requisitions of the act of June 25, 1868, and the fact of her ratification of the fourteenth 
 amendment was duly proclaimed by the President, as also appears by a copy of the proclamation, hereto 
 attached.
 
 348 PRECEDENTS OF THE HOUSE OF BEPRFSENTATIVES. § 391 
 
 Congress having decided that Georgia was entitled to representation through the State govern- 
 ment organized under the reconstruction acts, on complying with the conditions therein named, it is 
 not competent for either House, now that the conditions have been complied with, to refuse admission to 
 Members on the ground that the State is not entitled to representation. For either House to do so would 
 be for such House to set aside a solemn act of Congress, passed by both Houses, and to repudiate the 
 principle on which it differed with the President and went before the people in the popular elections. 
 The House of Representatives, conforming to the law of Congress, has admitted to seats the Represent- 
 atives from Georgia against whom no personal objection was made, without any further inquiry than 
 whether Georgia had complied with the conditions of the act of June 25, 1868. No attempt was made 
 in that body to revise the decision of Congress. 
 
 The assumption that the constitutional amendment was not adopted in good faith is not sustained 
 by a particle of evidence before the committee, and is contradicted by the official report of Governor 
 Bullock to General Meade, by the orders of General Meade, and those emanating from the General in 
 Chief, by the proclamation of the President, made in pursuance of law, by the action of the House of 
 Representatives in passing upon the admission of Members to that body, and by the acquiescence of 
 all the departments of Government from July until now. H one branch of Congress is at liberty to deny 
 a State representation on the ground that it did not act in good faith in agreeing to the conditions pre- 
 scribed by Congress, what is to prevent either House of any other Congress, acting on a like assumption, 
 from denying admission to Members from any other of the reconstructed States? Ic is well known 
 that a large political party in the country believe the reconstruction acts unconstitutional. Should 
 that party hereafter obtain ascendency in either House of Congress, is it to be at liberty to overturn 
 the State governments which have been established in pursuance of law and to quote as a precedent 
 the action of the Senate in this case? When are we to have peace and civil governments established 
 in the late rebel States under such a policy? The question has been asked, If one pereon disqualified 
 by the fourteenth amendment could be permitted to act as a member of the Georgia legislature, why 
 not all; and if all, would it be pretended that it was a legislature organized in accordance with the 
 reconstruction acts? Probably not; and the same question, with the same force, may be asked in 
 reference to Congress or any other legislative body in the land. If a disqualified person or several such 
 were permitted to act as Members of Congress or a State legislature, does anybody pretend that the 
 action of the body would be vitiated thereby; and yet who would not admit that if a body of men were 
 to assemble and undertake to act as the Congress or the legislature of a State, all of whom were dis- 
 qualified from acting as such, that their action would have any validity? No such case is to be presumed, 
 and no legislative body is justified or safe in basing its action on supposititious cases which never have 
 and are not likely ever to occur. No such state of facts is presented in the case of Georgia. Not one 
 in ten of the members of the senate, after deducting those from whom the disabilities had been removed 
 by Congress, and not one in fifty of the members of the house were found disqualified by even the 
 minority of the committee who investigated this subject, and each house decided all its members to 
 be qualified. The constitution of Georgia, which was accepted by Congress, like that in all the other 
 States, and like the Constitution of the United States, in regard to Congress, leaves to each house the 
 exclusive right to judge for itself of the election and returns of its own members, and that judgment, 
 when pronounced, is conclusive everywhere. There was not a shadow of anything deserving the 
 name of evidence before the committee to show that either house of the legislature of Georgia acted 
 comiptly or fraudulently in passing upon the right of members to their seats under the fourteenth 
 amendment. 
 
 The Senate has no right, in the opinion of the undersigned, to revise the action of Congress, disregard 
 its laws, and refuse Hill his seat, because in its opinion Georgia is not entitled to representation, when 
 Congress has decided otherwise, and the Executive and the General in Chief have acted on that decision. 
 It being admitted that Hill is entitled to his seat if Georgia is entitled to be represented in the Senate, 
 and it being shown that Georgia has been declared by law to be entitled to representation on certain 
 conditions, which are shown to have been complied with, the conclusion would seem to be irresistible 
 that Hill was entitled to take his seat. That it is competent for the Senate, in passing upon the elections, 
 returns, and qualifications of its Members, to inquire whether the body by which a Senator was elected 
 was the legislature of the State is not disputed; but it is not pretended that Georgia had any other legisla- 
 tive assembly than the one which elected Mr. Hill claiming to be a legislature. The legislative body
 
 § 391 ELECTORATES IN RECONSTRUCTION. 349 
 
 which elected him was the one which was convened by the governor in pursuance of an act of Congress; 
 the one which ratified the fourteenth amendment to the Constitution as proclaimed both by the Presi- 
 dent and Secretan.- of State, in accordance with the requirements of law; and the one, and the only 
 one, which has been elected and assembled in said State under the constitution formed in pursuance 
 of the reconstruction acts and approved by Congress. The legislature of Georgia, under its constitution, 
 consists of 44 senators and 175 representatives, and the complaint is, not that the persons properly 
 chosen and qualified would not and did not constitute the legislature, but that "there were a number 
 of persons holding seats in both branches of the l^islature that were and are not eligible under the 
 fourteenth constitutional amendment." 
 
 Each house appointed committees, who investigated the question of the eligibility of the members 
 of their respective houses under that amendment; and, on their report, each house decided that all 
 its sitting members were entitled to seats. ^Miether these decisions were correct or not is not material 
 to Hill's right to a seat, as it Ls not pretended, even by the minority of the committees appointed to 
 investigate, that more than 4 senators out of 44, omitting those whose disabilities had been removed by 
 act of Congress, and 3 representatives out of 175, were disqualified by the foiu-teenth amendment. 
 
 No evidence was taken by the Judiciarj' Conunittee to ascertain how many or whether any of the 
 members of either house were ineligible. 
 
 The statements of letter writers and memorialists can not surely be treated as evidence upon which 
 to overthrow a State government. The only reliable information the committee had on that subject is 
 contained in the official report of ilajor-General Meade and the journal of the legislature, as published 
 in a newspaper. From these it appears that only 4 senators and 3 representatives were complained 
 against by any one in the legislature as disqualified by the fourteenth amendment. 
 
 If it were admitted that the decision of each house was wrong in regard to the eligibility of 
 the members complained against it would not \atiate the proceedings of the legislature. 
 
 As to the expulsion of the colored members, ilr. Tnmibiill said: 
 
 Another objection urged against Mr. Hill's right to a seat is the fact that the legislatiu'e of Georgia 
 unjustly denied the right of certain colored members to seats. However unjust this denial may have 
 been, it did not take place till more than a month after HUl's election. He was elected July 28, and 
 the colored members participated in all legislation till September 3. 
 
 It is difficult to perceive how an act subsequent to the election could affect its validity. If the 
 legislature was properly organized when it elected Hill, the fact that it subsequently became disorgan- 
 ized ought not to affect his election. 
 
 On February 17 Mr. Stewart, from the Judiciary Committee, submitted a 
 report against the admission of ilr. ililler, whose case was similar to that of Mr. 
 Hill. 
 
 The Senate did not decide either of these cases at this session. 
 
 On March 9, 1869,^ at the beginning of the next Congress, the credentials of 
 Messrs. Hill and Miller were again referred to the Judiciary Conmiittee, and on 
 March 17, 1869, ilr. Trumbull reported from that committee the credentials, with 
 the recommendation that they lie on the table imtil action should be taken on a 
 bill to enforce the fourteenth amendment and the laws of the United States in the 
 State of Georgia and to restore to that State the repubhcan government elected 
 under its new constitution.' Mr. Trumbull said he was opposed to the recommen- 
 dation of the conmiittee, and thought the credentials should be acted on at once. 
 But no further action was taken at this sessif)n of Congress. 
 
 ' First session Forty-first Congress, Globe, pp. 31, 102. 
 
 ^ Such a law was passed and approved December 22, 1869 (16 Stat. L., p. 59), and provided forsum- 
 moning the legislature and testing their loyalty by oath, and also forbade the exclusion of members 
 because of color.
 
 350 PKECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 391 
 
 At the next session, on J'ebruary 14, 1870,' the credentials of Messrs. Miller 
 and Hill were again taken from the files and referred to the Judiciary Committee. 
 
 On July 15, 1870,^ Mr. Stewart presented the credentials of Richard H. White- 
 ley, elected to fill the term for wliich Mr. Miller was a claimant, and of Henry P. 
 Farrow, elected to fill the term for which Mr. Hill was a claimant. These creden- 
 tials were laid on the table. 
 
 On December 13, 1870, at the next session, the credentials of Messrs. Whiteley 
 and Farrow were referred to the Committee on the Judiciary, and on January 23, 
 1871,^ Mr. Trumbull submitted a report from that committee. Five members, 
 Messrs. Trumbull, Edmunds, Conkling, Matt H. Carpenter, of Wisconsin, and Allan 
 G. Thurman, of Ohio, concurred in the report. Two, Messrs. Stewart and Rice, 
 signed minority views. 
 
 Messrs. Farrow and Whiteley had been elected in 1870 by the same legislature 
 that had elected Messrs. Hill and Miller in 1868. But between the two acts the 
 legislature had been purged in accordance with the terms of the act of Congress of 
 December 22, 1869, disloyal members being excluded and the wrongfully excluded 
 colored members being restored. The cjuestion before the Judiciary Committee 
 in this instance was whether Messrs. Hill and J^Iiller were to be seated, or Messrs. 
 Farrow and Whiteley. The majority of the committee decided in favor of seating 
 Mr. Hill, and found that Mr. Miller would be entitled to a seat when his disabilities 
 should be removed. 
 
 The report of the committee recites the history of reconstruction in Georgia, 
 and gives the details as to the purging of the legislature, quoting from a report of 
 the Senate Judiciary Committee to show that steps unwarranted by law were 
 taken in the course of that process. The history of the elections of the two sets of 
 Senators is also given, with conclusion as follows : 
 
 The general aesembly was organized in July, 1868, in prima facie accordance with the constitution 
 of the State, the reconstruction acts of Congress, and the orders of the military department. It complied 
 in form with all the requirements necessary to entitle the State to representation in Congress, and Mem- 
 bers were accordingly admitted into the House of Representatives of the United States in 1868. Whether 
 either or both houses of the general assembly of Georgia admitted persons to sit as members in their 
 respective bodies who were disqualified by the third section of the fourteenth article of the Constitution 
 was at the time a disputed question; but each house appointed a committee to consider that question, 
 after whose report it was voted by each house that all its members were qualified. These reports and 
 the action upon the same appear in the appendix to the report made to the Senate by this committee, by 
 Mr. Stewart, at the third session of the Fortieth Congress, and are hereto annexed, marked " Exhibit G." 
 The general assembly thus organized not only elected Senators of the United States, but it also elected, 
 as required by the State constitution, State officers, to wit, a secretary of state, a comptroUer-general, 
 and a State treasurer, all of whom have since been discharging the duties of their respective offices with- 
 out question. At the same session judges of the various courts throughout the State were appointed by 
 the governor, by and with the advice and consent of the senate, who have since been and are now pre- 
 siding in the various courts of the State. The legislature thus organized passed laws authorizing the 
 borrowing of money and affecting the general interests of the State, none of which have ever been held 
 or supposed to be invalid for the reason that the legislature which enacted them was not properly organ- 
 ized. The reason for the passage of the act of Congress of December 22, 1869, requiring a reorganization 
 of the general assembly is to be found in the wrongful expulsion by the general assembly in September, 
 
 ' Second session Forty-first Congress, Globe, p. 1247. 
 
 '' Globe, p. 5634. 
 
 ^ Senate Beport No. 308, third session Forty-first Congress.
 
 § 391 ELECTORATES IN KECONSTRUCTION, 351 
 
 1868, of its colored members, in the seating of the minority candidates in their places, and in continuing 
 in their seats members believed to be disqualified, and in the general disorder and violence which pre- 
 vailed in the State. That act did not declare the general assembly as organized in July, 1868, to have 
 been illegal, or its acts, other than those referred to in the act itself, invalid; but it provided for correct- 
 ing the wrongful and revolutionary acts which had been done by it as organized in July, 1868. It is not 
 believed that the act of December 22, 1869, would ever have been passed had the colored members been 
 permitted to retain their seats and the peace of the State been preserved. 
 
 The body of the general assembly as organized in July, 1868, and as reorganized in January, 1870, 
 is not essentially different. Of the 44 senators and 173 members declared elected by General Meade, 
 only 5 senators and 19 representatives who participated in the organization of July, 1868, were excluded 
 or failed to participate in the reorganization in January, 1870, and 21 minority candidates were improp- 
 erly admitted to seats in the general assembly, as reorganized, in their places. The general assembly 
 as organized in July, 1868, and at the time of the election of Hill and Miller, contained in each house a 
 constitutional quomm of legal members. All the contestants maintained the position before the com- 
 mittee that the ineligibility or disqualification of individual members of either house, not sufficiently 
 numerous to affect its constitutional quorum, was an immaterial issue. Your committee have not, there- 
 fore, deemed it necessary to discuss that question further than to state the facts in regard to it. Three 
 of the claimants— Joshua Hill, W. P. Farrow, and R. H. Whiteley— have had their political disabilities 
 removed by act of Congress of June 25 and July 20, 1868. H. V. M. Miller never labored under any of 
 the political disabilities imposed by the third section of the fourteenth amendment to the Constitution 
 of the United States; but it is admitted that he acted as a surgeon in the rebel army under an appoint- 
 ment from a colonel of a rebel regiment, and having thus given aid to persons in hostility to the United 
 States, can not take the oath required by the act of July 2, 1862. 
 
 The act of July 11, 1868, prescribes a qualified oath to be taken by persons elected or appointed to 
 office from whom political disabilities have been removed. Yoiir committee are of opinion that Joshua 
 Hill was duly elected by a legislature having authority to elect Senators, and is entitled to take his seat 
 on taking the oaths required by the Constitution and laws. Miller, however, is not relieved from taking 
 the oath prescribed by the act of July 2, 1862, and in the opinion of your committee is not entitled to 
 take his seat; and it follows from the conclusion of the committee as to the proceedings in the election of 
 Hill and Miller that neither Farrow nor \\'hitely is entitled to a seat. 
 
 The committee recommend for adoption the following resolution: 
 
 Resolved, That Joshua Hill has been duly elected Senator of the United States by the legislature 
 of the State of Georgia, and is entitled to take his seat on taking the oaths required by the Constitution 
 and laws. 
 
 In the minority views, which favored the seating of Messrs. Farrow and White- 
 ley, Mr. Stewart argued that the act of June 25, 186S, provided that Georgia, with 
 certain other States, should be admitted to representation in Congress, when they 
 had comphed with certain conditions. And he held that the conduct of the Georgia 
 legislature had been violative of those conditions. He says in the minority views : 
 
 We have been able to find no case in the history of the Government where Senators have been 
 admitted from a State not entitled to representation in Congress at the time of their election. 
 
 There are many cases in which this legislative declaration was not made until after the election 
 of Senators. This has occurred in the admission of new States where the organization of the State and 
 the election of Senators had occurred previous to the admission. But in those cases the act of admis- 
 sion was an approval of the organization that had preceded it, and amounted to a legislative declaration 
 that the State at the time of the election of Senators was entitled to representation. In each of these 
 cases the loyal status of the State was unquestioned, and the act of Congress admitting such State was 
 construed to relate back to the election of Senators and to amount to a legislative declaration that the 
 State at the time of the election was entitled to representation. This principle can not help the case of 
 Hill and Miller, for at the time the declaration was made by the act of July 15, 1870, that the State 
 of Georgia was entitled to representation, the status of things had been changed in Georgia by the 
 reorganization of the legislature. This declaration related to the then existing condition of the State.
 
 352 PRECEDENTS OF THE HOUSE OF EEPEESENTATIVES. § 391 
 
 Congress has already in effect decided that the necessary legislative declaration that Georgia was 
 entitled to representation was not made prior to the election of Hill and Miller. The act of December 
 22, 1869, "to promote the reconstruction of Georgia," can be justified upon no other theory than that 
 reconstruction in that State was not then an accomplished fact. After a compliance with this act, 
 and not before, we have the declaration in the act of July 15, 1870, that "it is hereby declared that 
 the State of Georgia is entitled to representation in the Congress of the United States." If this act 
 relates back to the date of the election of Hill and Miller, their exclusion from seats in this body from 
 July, 1868, until now is wholly without justification, and the act of December 22, 1869, was an exercise 
 of power over a State entitled to representation for which there is no precedent and which, if exercised 
 in the case of Massachusetts or Ohio, would, to say the least, be open to grave constitutional doubts. 
 It directs the governor to convene the persons originally elected to the legislature, and requires those 
 persons, as a qualification for seats in that body, to take and subscribe to an oath hitherto unknown to 
 the laws of the State of Georgia or of the United States; and it also required them to reorganize the 
 legislature by electing oflicere, who shall also be required to take the same oath. It requires the legis- 
 lature to ratify the fifteenth amendment before Senators and Representatives shall be admitted to seats 
 in Congress, and prescribes various other matters, all pertaining to the reconstruction of a rebel State, 
 and never applied to a loyal State whose practical relations to the Union were not disturbed. We 
 venture to affirm that the Senate and House of Representatives in voting for that act did so upon the 
 theory that they were reconstructing a rebel State, and not upon the theory that they were dealing 
 with a State whose practical relations with the United States had never been disturbed, or which, 
 having been disturbed, were then fully restored. It seems clear that the requirement alone that the 
 legislature should ratify the fifteenth amendment before Senators and Representatives should be 
 admitted from Georgia was in itself a declaration that Georgia was not, on the 22d of December, 1869, 
 entitled to representation. But after the reorganization of the legislature under this act, the whole 
 matter was again submitted to Congress, and Congress accepted the State as then organized. The act 
 of July 15, 1870, was a legislative declaration that the State was then entitled to representation under 
 the organization of the legislature as then existing, and related back to the commencement of the then 
 existing state of things, namely, the reorganization of the legislatiire in January, 1870. This was a 
 declaration that Georgia was entitled to representation at the time of the election of Farrow and Whiteley. 
 
 The language of the act of July, 1870, is "that the State of Georgia, having complied with the recon- 
 struction acts, and the fourteenth and fifteenth articles of admendments to the Constitution of the 
 United States having been ratified in good faith by a legal legislature of said State, it is hereby declared 
 that the State of Georgia is entitled to representation in the Congress of the United States." 
 
 How can it be claimed that this language refers to the organization in 1868, in view of the facta 
 in this case? Had the State of Georgia complied with the reconstruction acts at that date? 
 
 If this be so, Congress stultified itself in passing the act of the 22d of December, 1869, to promote 
 the reconstruction of Georgia, eighteen months after she had fully complied with the reconstruction 
 acts under which the other States were admitted. 
 
 It seems clear that this language embraced all the reconstruction laws with which Georgia was 
 required to comply, including the act of December, 1869. It is evident that Congress intended to 
 declare, and did declare, that after the compliance with the last-named act, and not before, Georgia 
 was entitled to representation. 
 
 It is too late to question the propriety of these acts by either House, acting separately, upon the 
 credentials of its Members, for it is too well established that Congress must determine when a State is 
 entitled to representation. After that determination has been made, neither House, acting alone, can 
 question its validity, but each House is confined, in passing upon the credentials of its Members, to 
 matters of election and qualification. 
 
 We have shown that Hill and Miller were not elected from a State which at the time was entitled 
 to representation by any act of Congress, from which it follows that they are not entitled to seats in the 
 Senate. 
 
 We have also shown that Farrow and Whiteley were elected by a legislature of a State which 
 Congress recognized as duly organized by declaring the State entitled to representation. 
 
 The election of these gentlemen seems to have been regular and a substantial compliance with 
 law, and we therefore conclude that they are entitled to their seats. 
 
 *******
 
 § 392 ELECTORATES IN KECONSTRUCTlOIf. 353 
 
 It is suggested that there is some doubt about the regularity of the election of Mr. Farrow, for the 
 reason that there was no quorum present in the house of representatives at the time of his election. 
 The records show that the house, when reorganized, and disloyal members excluded, consisted of 154 
 members, and Mr. Fan-ow alleges that 1 member, Robert Lumpkin, who had been sworn in, died before 
 the Senatorial election, leaving the number 153. A quorum of this number would be 77. The number 
 of persons present and voting was 82, of which Mr. Farrow received 80. But it is said that minority 
 men were improperly admitted. We might answer this by saying they were admitted by the 
 legislature, and that the Senate wUl not ordinarily review the action of that body in deciding upon the 
 qualification of its own members. 
 
 But if the Senate would enter upon such an investigation under any circumstances (which on 
 mature reflection we now think may be open to some doubt) it can not be called upon to do so in this 
 case. The question of the proper organization of the legislature in January, 1870, was, at the last ses- 
 sion, under investigation in both Houses, on the passage of the act of July 15, 1870. The report of the 
 Judiciarj- Committee of the 2d of March last, printed as a part of the majority report, recommends that 
 no further legislation be had to perfect the organization of the legislature of Georgia as it then existed, 
 and Congress, acting on that report, decided it to be a legal legislature. 
 
 But admitting that the minority men were improperly received, the result would be the same. 
 
 The number of members declared elected in General Meade's order, who were allowed to qualify 
 and retain their seats, leaving out of the calculation those who are known as "minority men, " was 141. 
 
 Deducting Mr. Lumpkin, who is alleged to have died before the Senatorial election, and we have 
 140. Necessary to a quorum, 71. Number of persons present and voting on the election of Mr. Farrow, 
 71. Of this number Mr. Farrow received 69. Thus it appears in either case a quorum was present, 
 and Mr. Farrow had a majority of that quorum. 
 
 All other matters in regard to the election of Messrs. Farrow and Whiteley we believe, are 
 admitted to have been regular. 
 
 We therefore recommend for adoption a resolution declaring Henry P. Farrow and Richard H. 
 Whiteley elected, and entitled to seats in the Senate on taking the oaths required by law. 
 
 The report was debated at length on January 30 and 31 and February 1.' On 
 January 30 - an amendment offered by Mr. Stewart declaring Alessrs. Farrow and 
 Whiteley entitled to take seats upon taking the oath, was disagreed to — yeas 19, 
 nays 36. On February P an amendment striking out the name of Joshua Hill in 
 the resolution of the majority and inserting the name of Hemy P. Farrow was 
 disagreed to — yeas 19, nays 36. Then the resolution seating Mr. Hill was agreed 
 to without division, and he appeared and took the oath. 
 
 On February 24,* after a bill prescribing the form of oath to be taken by him 
 had been passed by the House and signed by the President ^ Mr. Miller appeared 
 and took the oath. 
 
 392. The Senate election case of Hart v. Gilbert, from Florida, in the 
 Forty-first Congress. 
 
 Instance wherein the Senate admitted a person chosen before Con- 
 gress had admitted a reconstructed State to representation. 
 
 Construction of the law specifying the time when a legislature shall 
 proceed to the election of a Senator. 
 
 The Senate has declined to permit a contestant to be heard on the 
 floor of the Senate in his own case. 
 
 ' Globe, pp. 816-830, 848-851, 871-874. ■• Globe, p. 1632. 
 
 ^Globe, p. 822. '16 Stat. L., p. 703. 
 
 ^ Globe, p. 871. 
 
 5994— vol. 1—07 23
 
 354 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 392 
 
 On April 1, 1870/ in the Senate, Mr. Thomas W. Osborn, of Florida, presented 
 the credentials of Ossian B. Hart as Senator-elect from Florida for the term for 
 which Mr. Abijah Gilbert was already occupying a seat. Accompanying the 
 certificate was a memorial of Mr. Hart, setting forth the reasons on which he based 
 his claim to Mr. Gilbert's seat. On motion of Mr. Osborn the papers were referred 
 to the Judiciary Committee. 
 
 On April 13, 1870,^ Mr. Lyman Triunbull, of Illinois, submitted the report of 
 the committee, as follows: 
 
 In consequence of the rebellion the State of Florida was without representation in the Senate of the 
 United States from 1861 till 1868. In pursuance of a constitution framed and adopted under what are 
 known as the reconstruction acts, a legislature convened in Florida, Monday, June 8, 1868, the members 
 of the assembly and half of the senate having been elected for two years and the other half of the senate 
 for four years. 
 
 This legislature, on the 16th day of June, 1868, being the second Tuesday after its meeting and 
 organization, proceeded, in accordance with the act of Congress of July 25, 1866, "regulating the times 
 and manner of holding elections for Senators m Congress," to take action for the election of two United 
 States Senators to fill the then existing vacancies for the terms expiring on the 3d of March, 1869, and 
 the 3d of March, 1873. On Wednesday, the day following that on which each house had separately, but 
 without result, voted for Senators to fill the two existing vacancies, the members of the two houses, con- 
 vened in joint assembly, elected a Senator to fill the vacancy expiring March 3, 1869, and adjourned 
 till the next day, when they again assembled and elected a Senator for the term expiring March 3, 1873, 
 and adjourned without date. 
 
 The next day (Friday) the members of the two houses, each house having previously concurred in a 
 resolution to that effect, assembled again in joint convention for the election of a Senator to succeed the 
 one whose term would expire on the 3d of March, 1869, when Abijah Gilbert, the present sitting Member 
 was elected. 
 
 The petitioner was chosen by the same legislature in January, 1870, to represent the State in the 
 Senate for the term commenncing March 4, 1869, and now claims the seat occupied by Mr. Gilbert. 
 
 The elections of 1868 all took place before the passage of the act of June 25, 1868, which declared 
 Florida entitled to representation in Congress. 
 
 Two objections are taken to the election of the sitting Member: 
 
 1. That he was chosen by the legislature of a State not at the time recognized as entitled to repre- 
 sentation in Congress. 
 
 2. That he was not elected in conformity with the act of July 25, 1860. 
 
 The first objection is answered by the fact that the subsequent recognition of the State as entitled 
 to representation under the Constitution, in pursuance of which the legislature was elected and 
 organized, related back to and made valid its acts from the time of its organization. Senators and 
 Representatives from several of the reconstructed States have been chosen before the States were declared 
 entitled to representation, and no one has ever questioned their right to seats when Congress subsequently 
 recognized the government under which they were chosen as entitled to representation. 
 
 The only ground for the other objection arises from the fact that the legislature failed to take action 
 on the "second Tuesday after its organization" in regard to the third Senator who was to be elected, 
 but it took action on the subject of electing Senators and actually voted, though unsuccessfully, on 
 that day for persons to fill the two existing vacancies. 
 
 The object of the act of Congress was to insure the election of Senators by the proper legislature, 
 and to fix a time when proceedings for that purpose should be commenced and continued till the 
 elections were effected. 
 
 The legislature by which the sitting Member was elected was the one chosen next preceding the 
 term which would commence on the 4th of March, 1869, and was therefore the proper legislature to 
 elect. "The second Tuesday after the meeting and organization of the legislature"' was the time pre- 
 
 ' Second session Forty-first Congress, Globe, pp. 2330, 2331. 
 2 Senate Report No. 101, ^ Globe, p. 2639.
 
 § 393 ELECTORATES IN RECONSTRtJCTION. 355 
 
 scribed by the act of Congress for initiating the election of Senators, and that was the time when the 
 legislature proceeded to that business. There being three Senators to elect, it took action on that day 
 only in reference to two of them. Did its failure to take action on that day and the two subsequent 
 days (which were occupied in electing the first two Senators) in reference to the third Senator render 
 his election, in all other respects regular, invalid? The committee think not. 
 
 The language of the law is: "In case no person shall receive such majority on the first day, the 
 joint assembly shall meet at 12 o'clock meridian of each succeeding day during the session of the 
 legislature and take at least one vote tUl a Senator shall be elected." Xo formal adjournment from 
 day to day by vote of the joint assembly was necessarj', but it was the duty of the members of each 
 house to meet in joint assembly at noon of each day and vote at least once till all the Senators whom 
 the legislature had the right to elect were chosen. This is exactly what the legislature did. 
 
 In no view which the committee can take would the petitioner be entitled to a seat in the Senate, 
 for if the election of the sitting Senator was irregular, that of the petitioner, by the same legislature at a 
 subsequent session, was equally so. 
 
 The committee recommend for adoption the following resolution: 
 
 Resolved, That Abijah Gilbert was duly elected a Senator from the State of Florida for the term 
 commiencing March 4, 1869, and is entitled to hold his seat as such. 
 
 On April 15, 1870/ Mr. Trumbull presented the memorial of Mr. Hart, who 
 prayed that he might be permitted to address the Senate on the subject of his 
 claim, as he conceived that the report did not take what he considered the correct 
 view of the case. The application was debated briefly, and it was stated that in 
 the other House contestants were frequently heard, and that in a previous case 
 from Florida the Senate itself had set such a precedent. But the general opinion 
 of the Senate concurred in the view expressed by Mr. Roscoe Conkling, of New 
 York, that the merits of the case could not fail to be tried searchingly without 
 the introduction of new talent. Therefore Mr. Hart's petition was laid on the table. 
 
 On April 28,- the report came up, but was not debated except for the reading 
 of a brief written argument, wTitten by Mr. Hart, but presented by Mr. Timothy O. 
 Howe, of Wisconsin, and read in his time. 
 
 The resolution confirming Mr. Gilbert's title to the seat was then agreed to 
 without division. 
 
 393. The Senate election cases relating to Goldthwaite, Blodgett, and 
 Norwood, from Alabama and Georgia, in the Forty-second Congress. 
 
 The Senate declined to give immediate prima facie effect to regular 
 credentials impeached by a memorial alleging irregularities in constitu- 
 tion of the State legislature and suggesting personal disqualifications of 
 the bearer. 
 
 On Februan,- 8, 1871,^ in the Senate, Mr. George E. Spencer, of Alabama, pre- 
 sented the credentials of George Goldthwaite, elected a Senator by the legislature 
 of Alabama, for the term of six years conmiencing March 4, 1871. 
 
 On March 4, 1871/ at the time of swearing in Senators-elect, Mr. Goldthwaite 
 appeared to take the oath, when Mr. Jolin Sherman, of Ohio, presented the fol- 
 lowing protest, signed by 45 members of the legislature of Alabama: 
 
 ' Globe, pp. 2705, 2706. 
 
 -Globe, pp. 305.3, 3054. 
 
 ^ Third session Forty-first Congress, Globe, p. 975. 
 
 * First session Forty-second Congress, Globe, pp. 1-4.
 
 356 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 393 
 
 Montgomery, Ala., January 2fi, 1871. 
 
 To the Senate of the United States: 
 
 The subscribers, members of the senate and house of representatives of the State of Alabama, respect- 
 fully represent: 
 
 That they protest against the admission of Hon. George Goldthwaite to the Senate of the United 
 States as a Senator from Alabama, on the grounds that he was not elected by a majority of the legal 
 votes of the joint meeting of the legislature. He was declared elected by the following vote: For George 
 Goldthwaite, 65 votes; for Willard Warner, 50; for William J. Haralson, 14 votes. It will be seen that 
 65 votes constitute a majority of the votes cast, and that number of legal votes are necessary to an election. 
 
 We represent that Hon. George Goldthwaite did not receive that number of legal votes, as B. M. 
 Henry, claiming to be a representative from Russell County, in said State, who voted for Hon. George 
 Goldthwaite, was not elected by the people of said county, did not have a certificate of his election, 
 as is required by our laws, but was defeated at the polls by several hundred, and was not legally entitled 
 to vote for a United States Senator in said joint meeting of the legislature, which, if said illegal votes 
 had been rejected, would have been sufficient to prevent the announcement of the election of Hon. 
 George Goldthwaite to a seat in your honorable body. 
 
 Saul Bradford, of Talladega County, who had been rejected by the people at the ballot box, was 
 permitted to vote for said Hon. George Goldthwaite, when in our opinion his vote should have been 
 rejected, as he had never been legally elected a member of the legislature. 
 
 In the counties of Greene, Sumter, Lee, and other counties, the representatives of which all voted 
 for Hon. George Goldthwaite, we have every reason to believe that the elections of said representa- 
 tives were procured by intimidating the voters, and in several instances fraud added thereto, and that 
 the gentlemen claiming to be representatives of these counties were not legally elected by the people 
 of said counties, are not their legal representatives, and were not entitled to vote tor United States 
 Senator at the joint meeting of the general assembly. 
 
 We are informed that some of the members of the legislature who voted for Hon. George Goldthwaite 
 are laboring under political disabilities imposed by the fourteenth amendment of the Constitution of 
 the United States, and it is an inquiry worthy the consideration of the Senate of the United States 
 whether Hon. George Goldthwaite is not laboring under the same disabilities for his actions during 
 the recent rebellion of the Southern States. 
 
 Believing, therefore, that Hon. George Goldthwaite is not legally elected Senator from Alabama, 
 we respectfully pray that the Senate of the United States may so decide, and declare his seat vacant. 
 
 It appeared that Mr. Goldthwaite's credentials were in regular form, signed by 
 the acknowledged governor, under the seal of the State, and that there was no 
 question that the legislature which had elected was the rightful legislature. 
 
 In the debate Mr. Allen G. Thurman, of Ohio, urged that the memorial made 
 no case against the Senator-elect. The Senate had never undertaken to canvass 
 the question of the eligibility of the members of a legislature. 
 
 Mr. Sherman replied that the memorial related to much more than an inquiry 
 whether one person or another was elected to the legislature. It showed that an 
 intruder had cast a deciding vote, and also that in several counties of the State 
 the right of the electors had beSn denied by force and fraud. In large portions of 
 the State a quasi war had existed. There was a question also as to whether or 
 not the claimant was qualified. 
 
 The matter was debated at considerable length on this day, and then the cre- 
 dentials and protest were temporarily tabled. During the debate the Ehode Island 
 case of Asher Robbins was frequently referred to. 
 
 On the same day, March 4,' the Vice-President laid before the Senate the cre- 
 dentials of Foster Blodgett, Senator-elect from Georgia. These credentials were in 
 
 ' Globe, p. 4.
 
 § 394 ELECTORATES IN KECONSTRDCTION. 357 
 
 due form, but there had been filed a memorial of certain members of the late gen- 
 eral assembly of the State of Georgia protesting against the admission of Mr. Blod- 
 gett to a seat for the following reasons: 
 
 That the election was not held in accordance with the law of Congress approved July 26,18GG, in 
 that the legislature was not the body chosen "next preceding the expiration of the time for which" 
 said Blodgett was elected to represent said State in Congress. The legislature which elected him was 
 elected in April, 1868, and another legislature was chosen in December last, previous to the occurrence 
 of the vacancy, upon whom, under the law, devolves the duty of electing the Senator. 
 
 That at the time said Blodgett was elected the constitution of said State required that the legis- 
 lature to be elected in the fall of 1870 should assemble on the second Wednesday in January, 1871, 
 prior to the occurrence of the vacancy; but that the day of meeting was wrongfully changed to Novem- 
 ber, 1871, with a view, as we believe, of creating a pretended necessity for an election of Senator by 
 the old legislature. This change was not made until after the election of said Blodgett, thereby by a 
 mere trick defeating an expression of the voice of the people in accordance with the laws of the United 
 States. 
 
 That the election is, furthermore, illegal in this, that at the time said Blodgett was elected a quorum 
 of the house of representatives of said general assembly was not present, as is shown bv the journals 
 of that body. 
 
 For which reasons we pray that said election be not recognized by youi honorable body, and that 
 the legislature elected next preceding the occurrence of said vacancy, which will assemble in November 
 next, be allowed to elect a Senator to represent this State in your honorable body, as provided by the 
 law of Congress, etc. 
 
 The credentials and memorial were temporarily laid on the table. 
 
 On March 13, 1871,' the papers in the eases of Messrs. Goldthwaite and Blodgett 
 were referred to the Committee on Privileges and Elections. 
 
 394. The Senate election case relating to Goldthwaite and others, con- 
 tinued. 
 
 The Senate failed to follow its committee in giving prima facie effect 
 to regular credentials impeached by allegations that the legislature had 
 been elected in violation of the provisions of Federal law. 
 
 Senate decision as to the time when a legislature should fill a vacancy 
 in the United States Senate. 
 
 An instance wherein a Senate committee reported in a single resolu- 
 tion their conclusions as to the election cases of claimants from different 
 States. 
 
 A Senate ruling that the division of a question depends on grammat- 
 ical structure rather than on the substance involved. 
 
 On March 20 ^ Itlr. William M. Stewart, of Nevada, submitted the following 
 report : 
 
 That said credentials are in due form and prima facie entitle said Goldthwaite and Blodgett to 
 their seats upon taking the oath prescribed by the Constitution and laws, neither of them being under 
 any disability. 
 
 The grounds on which their right to seats are contested have not been fully considered by the com- 
 mittee for want of time, nor will there be sufficient time at this session to consider them. In the opinion 
 of your committee it would be unjust to those States and gentlemen to keep the latter out of their seats 
 until such investigation can be had. 
 
 ' Globe, p. 74. " Senate Report No. 3.
 
 358 PRECEDENTS OF THE HOUSE OF KEPRESENTATIVES. § 394 
 
 The committee therefore report the following resolution: 
 
 Resolved, That George Goldthwaite and Foster Blodgett be permitted to take seats in this body 
 upon taking the proper oath; and that the Committee on Privileges and Elections proceed hereafter to 
 consider the grounds on which their rights to seats, respectively, are contested, and hereafter make 
 reports to the Senate thereon. 
 
 \Vm. M. Stewart. 
 O. P. Morton. 
 H. Hamlin. 
 B. F. Rice. 
 
 We concur in the foregoing as to Goldthwaite, but not as to Blodgett. 
 
 Joshua Hill. 
 A. G. Thurman. 
 
 On March 22' the resolution was taken up for consideration, and at once Mr. 
 Joshua Hill, of Georgia, raised a question that the cases of the two claimants should 
 be passed on separately, and proposed a division of the question. 
 
 The Vice-President ' held, however, that the resolution was not divisible, as it 
 did not conform to the rule which required that after the division each portion 
 should present a substantive proposition. 
 
 Mr. Thurman dissented from this decision, holding that it was the subject and 
 not the grammar which should control. But the Vice-President adhered to his 
 decision, and in the subsequent proceedings the Senate separated the two propo- 
 sitions by amendment. 
 
 Mr. Joshua Hill, of Georgia, in order to separate the two propositions, moved 
 to strike out the words "and Foster Blodgett." 
 
 The questions involved in the resolution and amendment were debated on 
 March 25 and April 6 and 10.' It was objected that the case of Mr. Blodgett 
 differed materially from the case of Mr. Goldthwaite. It does not appear that there 
 was opposition to the swearing in of the latter. But there was opposition to the 
 administration of the oath to Mr. Blodgett on the ground that there was a question 
 as to the competency of the legislature. Mr. Thurman insisted that this question 
 was essentially part of the prima facie case. The Senate sitting in a case like this 
 was bound like every court to take notice of the laws and constitution of a State in 
 regard to its legislature. 
 
 On behalf of the majority it was urged that the Senate was accustomed to 
 seat persons bearing credentials regular in form except in cases where there was a 
 question as to the right of a State to representation or as to the qualifications of 
 the person bearing the credentials. The question as to the legislature of Georgia 
 was a law question, and one that might well be exanuned and decided after the 
 bearer of the credentials had been sworn in on his prima facie title. 
 
 On April 11 * the subject was tabled to make way for other business, by a vote 
 of 19 yeas to 17 nays. 
 
 At the next session of the Congress, on December 4, 1871, '* Mr. Thurman pre- 
 sented the credentials of Thomas M. Norwood as Senator from Georgia for the six 
 
 ' Globe, pp. 218, 219. 
 
 -Schuyler Colfax, of Indiana, Vice-President. 
 
 ^ Globe, pp. 272,494, 540. 
 
 * Globe, p. 566. 
 
 * Second session Forty-second Congress, p. 1.
 
 § 394 ELECTORATES IN EECONSTKUCTION. 359 
 
 years commencing March 4, 1871. On December 11' the credentials were referred 
 to the Committee on Privileges and Elections. 
 
 On December 18^ Mr. Matt. H. Carpenter, of Wisconsin, submitted a report as 
 follows : 
 
 The Committee on Privileges and Elections, to whom were referred the credentials of Foster Blodgett 
 and Thomas M. Norwood, each claiming a seat as Senator from the State of Georgia for the term which 
 commenced March 4. 1871, respectfully submit the following report: 
 
 The Senate being a branch of the Government of the United States, the right to elect a Senator is 
 conferred and its exercise regulated by the Constitution of the United States, and no law or regulation 
 of a State touching such election has any validity beyond the authority conferred upon the State by the 
 Constitution of the United States. 
 
 The Constitution, Article I, section 3, provides that Senators shall be chosen by the legislatures of 
 the respective States. Section 4 of the same article provides: 
 
 "The times, places, and manner of holding elections for Senators and Representatives shall be 
 prescribed in each State by the legislatiu'e thereof; but the Congress may at any time, by law, make or 
 alter such regulations, except as to the places of choosing Senators." 
 
 The first clause of this section commits to the legislatures of the States primarily the whole subject 
 of electing Senators and Representatives, and authorizes them to make such regulations upon the subject 
 as they may deem proper. The phrase "the times, places, and manner of holding such elections for 
 Senators and Representatives " embraces the whole subject of election of Senator except that the election 
 must be made by the legislature of the State, as provided in the third section. The legislattu-e may 
 therefore provide that a Senator shall be elected by the legislature to be chosen next before the expira- 
 tion of a term or next after its commencement. The second clause, quoted from the fourth section, 
 confers upon Congress the same power and absolute control over the subject, to be exercised in the dis- 
 cretion of Congress, except that Congress can not fix a place for holding the election different from that 
 fixed by the State legislature. 
 
 In the exercise of this undoubted constitutional power Congress passed an act regulating the elec- 
 tion of Senators, approved July 25, 1866 (14 Stat. L., p. 243), which provides: 
 
 "The legislature of each State which shall be chosen next preceding the expiration of the time for 
 which any Senator was elected to represent said State in Congress shall, on the second Tuesday after the 
 meeting and organization thereof, proceed to elect a Senator in Congress in place of such Senator so going 
 out of office." 
 
 Foster Blodgett claims to have been elected on the 15th day of February, A. D. 1870, by the legisla- 
 ture then existing and in session. He received the requisite number of votes, and his credentials are in 
 due form. The question, therefore, is whether it was competent for that legislature to elect a Senator to 
 serve during the term before mentioned . If this question can be answered in the affirmative, Mr. Blodgett 
 is entitled to the seat ; if not, his pretended election was an absolute nullity. The answer to this question 
 depends upon the true construction of the act of Congress before quoted. It is claimed by Mr. Blodgett 
 that chosen and elected mean different things ; that legislators are elected by the people, but that legisla- 
 tors are not the legislature, and that the legislature is not chosen until the members elected assemble 
 as provided by law and organize as a legislature by determining what persons elected or claiming to be 
 elected are entitled to seats. That is, the people elect the legislators, and the legislators after their 
 election choose the legislature, and hence the legislature which was in fact organized next preceding 
 tne expiration of the term of office is the one authorized to elect a successor without regard to the time 
 when the members of such legislature were elected by the people. 
 
 This refinement of reasoning does not meet the approbation of your committee. The question is, 
 What was the intention of Congress in passing this act? The legislature designated by the act is the one 
 "which shall be chosen next preceding the expiration of the time," etc. There is no such thing as choos- 
 ing a legislature except by choosing its members. The Constitution declares that Senators shall be elected 
 by the l^islature of each State. Hence the act of Congress employs the same phrase. But your commit- 
 tee can not doubt that it was the intention of Congress to provide that the legislature whose members 
 
 ' Globe, p. 55. ^ Globe, p. 171; Senate Report No. 10.
 
 360 PRECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 394 
 
 should be elected next preceding the expiration of the Senatorial term should elect the successor. The 
 distinction sought to be established between the words elected and chosen derives no support from popular 
 or legal lexicography. Elected is defined chosen and chosen is defined elected, and the words are used as 
 synonymous in the Constitution of the United States, the constitution of every State, in all our statutes, * 
 and in all popular literature. It is a universal rule of construction, applicable to constitutions and stat- 
 utes, that words are to be understood in their popular, commonly received meaning, and to force upon 
 this statute so unnatural a construction would defeat the intention of Congress, manifest in the act itself, 
 and violate the fundamental principle of free government which doubtless inspired the passage of the act. 
 
 The legislature which was in session on the 15th day of February, 1870, when Mr. Blodgett claims to 
 have been elected, was chosen in April, 1868. By the constitution and laws of Georgia then in force it 
 was provided that another legislature should be elected on Tuesday after the first Monday in November, 
 1870, and that the legislature so to be elected should meet and organize on the second Wednesday in 
 January, 1871. Thus it will be seen that at the time Mr. Blodgett claims to have been elected there was 
 to be another legislature elected and organized prior to the expiration of the term for which Mr. Blodgett 
 claims to have been elected to serve. Therefore, as the case then stood, the action of that legislature in 
 the premises was without authority and directly in contravention of the act of Congress upon that subject. 
 It is not claimed that Mr. Blodgett was elected at any other time or by any other legislature. The validity 
 of his election must depend upon the state of case then existing. If the legislature had no authority to elect 
 him at that time, their pretending to do so conferred upon him no right to claim this seat. If he has any 
 rights they vested by that election, and were perfect as soon as the election was completed. His election 
 was either valid or void; if valid, no subsequent action of the legislature could impair his rights; if void, 
 no subsequent action of the legislature, short of another election, could entitle him to this seat. 
 
 Subsequently to Mr. Blodgett's pretended election the legislature provided by law, as it was author- 
 ized to do by the constitution of the State, that the legislature which was to be elected in November, 1870, 
 and organized in January, 1871, as required by law at the time of Blodgett's pretended election, should 
 not be elected until December, 1870, and should not convene and organize until November, 1871. But 
 if your committee are right in their construction of the act of Congress, the legislature which convened in 
 November, 1871, was the legislature chosen next preceding the expiration of the Senatorial term, and, 
 consequently, that legislature was the one which was authorized to elect the successor; and this legisla- 
 ture did, in fact, elect Mr. Norwood. The fact that the State for months after the expiration of the former 
 term, March 4, 1871, was without full representation in the Senate is not the fault of the act of Congress. 
 The legislature authorized under the act of Congress to make this election would have been elected in 
 November, 1870, and convened in January, 1871, and might have elected a Senator prior to the expiration 
 of the former term but for the action of the State in postponing the election and organization of the legis- 
 lature authorized to elect the successor. The State can not complain of its own act, nor ask the Senate to 
 disregard the act of Congress, because the State has intentionally omitted to comply with the act of Con- 
 gress, and avail itself of its provisions. 
 
 Therefore, Mr. Norwood having been duly elected at the first session of the legislature which was 
 chosen prior to the expiration of the former term, your committee respectfully recommend the adoption 
 of the following resolution : 
 
 Resolved, That Thomas M. Norwood is entitled to a seat in the Senate as a Senator from the State of 
 Georgia for the term commencing March 4, 1871, and that he be admitted to the same. 
 
 On December 19' the Senate agreed to the resolution and Mr. Norwood 
 appeared and took the oath. 
 
 On December 21 ^ Mr. Thurman submitted the following resolution for con- 
 sideration : 
 
 Resolved, That George Goldthwaite be permitted to take a sejt in this body as a Senator from the 
 State of Alabama, upon taking the oath, and that the Committee on Privileges and Elections proceed 
 hereafter to consider the grounds on which his right to a seat is contested, and hereafter make report to 
 the Senate thereon. 
 
 ' Globe, p. 211. ^Second session Forty-second Congres,s, Globe, p. 261.
 
 § 395 ELECTORATES IX EECONSTRCTCTION. 361 
 
 Mr. Thurman urged that, as Mr. Goldthwaite had credentials regular in form, 
 he was entitled to the seat by prima facie title. He had examined all the prece- 
 , dents from the beginning of the Government, and had not found a single case 
 where a Member-elect with such a title had been denied the seat. Had it not been 
 for the complication ^vith the case of ]Mr. Blodgett, ilr. Goldthwaite would have 
 been seated long since. 
 
 Mr. Oliver P. Morton, of Indiana, said that so far as the alleged election of 
 members of the legislature by fraud was concerned, and the alleged participation 
 of an intruder were concerned, those were questions to be determined by the legis- 
 lature. The question as to whether or not members of the legislature were under 
 disabilities imposed by the Constitution of the United States was one which the 
 Senate had a right to inquire into. 
 
 On January 9' Mr. Thurman called up the report of the committee on Mr. 
 Goldthwaite's case, and proposed this substitute for the resolution therein presented: 
 
 amend the resolution by striking out all after the word "resolved," and in lieu thereof inserting: 
 
 "That George Goldthwaite be permitted to take a seat in this body as a Senator from the State of 
 Alabama upon taking the proper oath; and that the Committee on Privileges and Elections proceed 
 hereafter to consider the grounds on which his right to a seat is contested, and hereafter make report 
 to the Senate thereon." 
 
 It was determined in the affirmative; and on the question to agree to the 
 resolution as amended, it was determined in the affirmative. So the resolution as 
 amended was agreed to. 
 
 On January- l.i Mr. Goldthwaite appeared and took the oath. 
 
 395. The Senate election case of Reynolds v. Hamilton, of Texas, in 
 the Forty-second Congress. 
 
 Conflicting credentials being presented, and a question of law appear- 
 ing, the Senate swore in neither contestant until after examination by a 
 committee. 
 
 Decision by the Senate as to authority of a legislature to elect Sena- 
 tors before the date when the State became entitled to representation. 
 
 On July 1.3, 1870,^^ in the Senate^ the credentials of Morgan C. Hamilton, as 
 Senator from Texas for the term of six years, commencing on March 4, 1871, were 
 presented. 
 
 On March 3, 1871,^ the credentials of Joseph J. Reynolds, as Senator for the 
 same State and the same term, were also presented. 
 
 On March 4, 1871,* at the time of swearing in Senators-elect, Mr. Oliver P. 
 Morton, of Indiana, presented a joint resolution of the legislature of Texas relating 
 to the cases affected by the credentials. Mr. Morton also stated that the credentials 
 of Mr. Reynolds did not bear the signature of the governor, it having been omitted 
 by inadvertence, evidently. The seal of the State had been placed thereon and 
 they were certified in proper form by the secretary of state. 
 
 The papers were laid on the table for inquiry. 
 
 'Globe, pp. 319, 376. 
 
 ^ Second session Forty-first Congress, Globe, p. 5527. 
 'Third session Forty-first Congress, Globe, p. 1979. 
 * First session Forty-second Congress, Globe, p. 4.
 
 362 PRECEDENTS OF THE HOUSE OP REPRESENTATIVES. § 395 
 
 On March 13, 1871,' on motion of Mr. Henry B. Anthony of Rhode Island: 
 
 Ordered, That the credentials of Joseph J. Reynolds and the credentials of Morgan C. Hamilton, 
 with the resolution of the legislature of Texas, declaring the election of said Hamilton on the 22d of 
 February, 1870, as Senator from that State for six years from March 4, 1871, illegal, be referred to the 
 Committee on Privileges and Elections. 
 
 On March 15,* the Vice-President laid before the Senate the credentials of 
 J. J. Reynolds, elected a Senator in Congress by the legislature of the State of Texas 
 for the term of six years, commencing on the 4th day of March, 1871. 
 
 The credentials were read. 
 
 The letter accompanying the credentials states that inadvertently the governor 
 had not signed the credentials presented March 3. 
 
 On March 18^ Mr. William M. Stewart, of Nevada, submitted the report of 
 the Committee on Privileges and Elections, as follows : 
 
 That in pursuance of the several acts of Congress for the reconstruction of the State of Texas the 
 legislature convened on the 8th and completed its organization on the 10th of February, 1870. On the 
 22d of Februaiy, 1870, second Tuesday after its organization, the legislature elected the Hon. Morgan 
 C. Hamilton a Senator of the United States for the term commencing on the 4th of March, 1871. 
 
 The same legislature on the same day elected the Hon. J. W. Flanagan a Senator of the United 
 States for the term ending March 3, 1875, and the Hon. Morgan C. Hamilton for the term ending Jilarch 3, 
 1871. These last two elections were to fill vacancies then existing, and both of these Senators were 
 admitted to their seats. 
 
 By the constitution of Texas there was another session of the .same legislature held in Texas after 
 the election of Mr. Hamilton and before the expiration of his term. This session commenced on the 10th 
 of January, 1871, and on the second Tuesday after its organization proceeded to the election of a Senator 
 for the term commencing on the 4th of March, 1871, the same term for which Mr. Hamilton had been 
 elected at the preceding session. 
 
 Gen. J. J. Reynolds is represented to have been elected, although the certificate referred to the 
 committee is not signed by the governor. 
 
 The reasons assigned for the election of General Reynolds are that the legislature had no authority 
 to elect Mr. Hamilton at the time of his election, first, because the State had not at that time been recog- 
 nized as entitled to representation in Congress; and, secondly, because there was another session of the 
 legislature after the election of Mr. Hamilton and before the commencement of the term for which he 
 was elected. 
 
 The case of Hon. Abijah Gilbert, Senator from Florida, is precisely in point upon both of these 
 questions. 
 
 The act of Congress of July 25, 1866, declares "that the legislature of each State which shall be 
 chosen next preceding the expiration of the time for which any Senator was elected to represent said 
 State in Congress shall, on the second Tuesday after the meeting and organization thereof, proceed to 
 elect a Senator in Congress in the place of such Senator so going out of office, in the following manner." 
 
 The fact that the State was not admitted to representation until after the election of Mr. Hamilton 
 is immaterial. The act admitting Texas to representation related back to the organization, and ratified 
 the proceedings of the legislature. 
 
 The committee therefore recommend that Mr. Hamilton be permitted to take his seat on taking the 
 oath prescribed by the Constitution and the laws. 
 
 Therefore the committee recommended this resolution: 
 
 "Resolved, That Morgan C. Hamilton was duly elected a Senator from the State of Texas for the 
 term commencing March 4, 1871, and is entitled to take his seat as such upon taking the required oaths." 
 
 This resolution was agreed to without division.* 
 
 On March 20^ Mr. Hamilton appeared and took the oath. 
 
 ' Globe, p. 74. = Senate Report No. 2. 'Globe, p. 169. 
 
 » Globe, p. 109. * Globe, p. 168.
 
 Chapter XII. 
 
 ELECTORATES IN NEW STATES AND TERRITORIES. 
 
 1. Admission of Members after passage of act admitting State. Sections 396-399. 
 
 2. Delegates from portions of the Northwest Territory. Sections 400-401. 
 
 3. Delegates admitted after portion of Territory becomes a State. Sections 402-404. 
 
 4. Territory must be organized to justify admission of Delegates. Sections 405-412. 
 
 396. The House declined to admit the Member-elect from Illinois 
 until the State had been formally admitted to the Union. 
 
 The Speaker asked the decision of the House when a Member-elect 
 from a State not yet admitted to the Union presented himself to be sworn. 
 
 On November 19, 1818/ Mr. John McLean, Representative from Illinois, 
 being in attendance, the Speaker stated to the House a difficulty which he felt in 
 deciding whether or not to administer the oath to Mr. McLean, in the absence of 
 action by Congress on the admission of the State. 
 
 Objection was made, especially by Mr. Timothy Pitldn, of Connecticut, who 
 thought that before admitting a Representative to a seat, the question whether 
 the people who elected him were a State ought to be decided. 
 
 The question being put, it was decided that the Speaker should not administer 
 the oath. Then the House ordered the constitution of Illinois referred to a select 
 committee. 
 
 On the following day that committee reported a joint resolution declaring 
 the admission of the State of Illinois into the Union, on an equal footing with the 
 original States. This was passed by the Senate, and on December 4 a message 
 was received from the President announcing his signature. 
 
 Thereupon Mr. McLean produced his credentials, and the oath was administered 
 to him. 
 
 397. The House declined to admit the Member-elect from Michigan — 
 except as a spectator — until the act admitting Michigan to the Union had 
 become a law. 
 
 It is not necessary that a State be admitted to the Union before it may 
 elect a Representative to Congress. 
 
 ' Second session, Fifteenth Congress, Journal, pp. 22, 25, 61; Annak, pp. 296, 297, 306-311, 342. 
 
 363
 
 364 PRECEDENTS OF THE HOUSE OF KEPRESENTATIVES. § 397 
 
 On December 16, 1835/ the Speaker submitted to the House the following 
 communication : 
 
 Washington, December 15, 1835. 
 Sir: Inclosed is a certificate of my election as a Representative of the State of Michigan in the 
 Congress of the United States. It is my desire that the same may be presented to the consideration 
 of the body over which you have the honor to preside. 
 I am, with great respect, your obedient servant, 
 
 Isaac E. Crary. 
 Hon. James K. Polk, 
 
 Speaker of the House of Representatives. 
 
 As the question of the admission of Miclugan into the Union was still pending, 
 a question was raised and the consideration of the subject went over until December 
 28, when Mr. Samuel Beardsley, of New York, under suspension of the rules, oflPered 
 this resolution: 
 
 Resolved, That Isaac E. Crary, who claims to have been duly elected a member of this House, be 
 admitted as a spectator, within the hall, during the sittings of the House. 
 
 Mr. Beardsley stated that this resolution was in accordance with the precedent 
 at the time when the admission of the State of Tennessee was pending. 
 
 The resolution was agreed to by the House. 
 
 On January 27, 1837,^ the bill entitled "An act to admit the State of Michigan 
 into the Union on an equal footing with the original States," passed by the two 
 Houses of Congress, having been approved and signed bj'^ the President of the United 
 States, and the certificate of the election of Isaac E. Crarj^ as Representative from 
 the State of Michigan in this House having been communicated to the House at the 
 last session of Congress, to wit, on the 17th of December, 1835, and the said Isaac 
 E. Crary being in attendance. A motion was made by Mr. Francis Thomas, of 
 Maryland, that the oath appointed by law to be taken by Members of the House of 
 Representatives be administered to the said Isaac E. Crary; and that he thereupon 
 take his seat as a Representative of the State of Michigan in this House. 
 
 A motion was made by Mr. John Robertson, of Virginia, that this motion, 
 together with the whole subject of the legality of the election of a Member of the 
 House from the State of Michigan, be referred to the Committee of Elections. 
 
 Mr. Robertson said that the election by which Mr. Crary claimed his seat took 
 place in October, 1835. At that time Michigan was a Territory, and she continued 
 to be such until yesterda}', when she was admitted into the Union. In this matter 
 subsequent recognition of Michigan as a State could not stand in the place of previous 
 consent, because the boimdaries of Michigan were uncertain until fixed by Congress. 
 That was a preliminary act, necessary before Michigan could lawfullj' frame a State 
 government. Under the ordinance of 1787, Michigan must of necessity remain a 
 Territory until admitted as a State, therefore, remaining a Territory until admission 
 as a State, there was no right to representation at the time of the election of Mr. 
 Crary, and his election could not be valid. 
 
 ' First session. Twenty-fourth Congress, Journal, pp. 71, 120, 121; Debates, pp. 1964, 2102, 2103 
 -Second session Twentj'-fourth Congress, Journal, pp. 290, 291; Debates, pp. 1504-1509.
 
 § 398 
 
 ELECTORATES IN NEW STATES AND TERRITORIES. 365 
 
 The previous question being ordered, the amendment of Mr. Robertson fell,^ 
 and ^Ir. Thomas's motion was agreed to, yeas 150, nays 32. 
 ilr. Crary was thereupon sworn, and took his seat. 
 
 398. The Senate declined to admit the persons bearing credentials 
 as Senators-elect from Tennessee until that State had been admitted to 
 the Union. — On June 1, 170G,- the Senate decHned to admit William Blount and 
 William Cocke, who produced credentials as Senators from the State of Tennessee. 
 That State had not yet been admitted to the Union. 
 
 399. The Senate election case of James Shields, of Minnesota, in the 
 Thirty-fifth Congress. 
 
 The Senate declined to admit a Senator-elect from Minnesota until a 
 formal act of admission had been passed by Congress. 
 
 On February 25, 1858,^ in the Senate, ilr. Jolm J. Crittenden, of Kentucky, pre- 
 sented the following letter: 
 
 Washingtok, February 24, 1858. 
 
 Sir: I beg leave to offer a few reasons to show that MinneBota is one of the sovereign States of this 
 Union. My first proposition is that there are only two forms of political organization under which a 
 community of .American citizens can legitimately exist within the jurisdiction and under the Constitu- 
 tion of the United States. The one is the organization of a Territory of the Union; the other that of a 
 State of the Union. These are the only determinate shapes into which political communities can be 
 molded under our Constitut ion. Each has its appropriate place in our federal system. A community of 
 American citizens living under a Territorial organization is in direct and legitimate connection with the 
 Federal Government. That same community, transformed into a State, is also in direct legitimate con- 
 nection with the Federal Government. In the transition from a Territory to a State, there is no point of 
 time at which this connection can by any possibility be broken. The Territorial government continues 
 in full force until it is superseded by a State government; and whenever the people constitute themselves 
 lawfully into a State, it is, lo instanti, a State of the Union. There is no such political anomaly as a 
 State out of the Union, or not yet in the Union. These erroneous terms have been applied so vaguely 
 to communities whose condition is not easily determined that the public begin to think tliere must be 
 some intermediate provisional, probationary state, in which communities are sometimes kept on their 
 passage from the condition of Territories to that of sovereign States of the Union. California was denom- 
 inated not many years ago a State out of the Union. Minnesota is, I suppose, at present considered by 
 some a State not yet in the Union, or, perhaps, a provisional State. Certainly the Representatives of 
 Minnesota are at present in a provisional dilemma, not knowing whether they represent a State in the 
 Union or out of the Union. 
 
 I now beg leave to refer you to the law of 1857 * authorizing the people of Minnesota to form a State 
 government. The first section contains the following language: "The inhabitants of Minnesota are 
 hereby authorized to form for themselves a constitution and State government by the name of Minnesota, 
 and to come into the Union on an equal footing with the original States, according to the Federal Constitu- 
 tion. ' ' Here the authority is absolute and unconditional, first, to form a constitution and State government; 
 secondly, to come into the Union on an equal footing with the original States — authority to make a State 
 and authority to come into the Union. No language could be more positive; no authority could be 
 more plenary; no act could be more determinate. The people have performed their engagements in 
 good faith, and they have a right to expect a like compliance on the part of Congress. These engage- 
 ments, too, affect the most sacred of all political rights — the constitutional rights of a sovereign State. 
 The third section of the Minnesota enabling act strengthens and corroborates this position. It provides 
 that a convention of delegates shall assemble at the capital of said Territory on the second Monday of 
 July next (1857), and first determine by a vote whether it is the wish of the people of the proposed State 
 
 ' This was the effect of the previous question on a pending amendment at that time. 
 ^ First session Fourth Congress, Contested Elections in Congress, from 1789 to 1834, p. 868. 
 3 First session Thirty-fifth Congress, Globe, pp. 861-867. 
 * Act approved February 26, 1857, 11 Stat. L., p. 166.
 
 366 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 399 
 
 to be admitted into the Union "at that time." Mark the language — not thereafter; not upon the hap- 
 pening of any futm'e contingency, but " at that time," to wit, on the second Monday in July, 1857; 
 "and if so," — that is, if they shall so determine — "shall proceed to form a constitution and to take all 
 necessary steps for the establishment of a State government in conformity with the Federal Constitution, 
 subject to the approval and ratification of the people of the proposed State." 
 
 Here two things are to be specially observed: First, the determination to become a State at that 
 time; not the determination at that time to become a State, but a State at that time. Second, the sub- 
 mission to the approval and ratification of the people. When was Minnesota to become a State? At 
 that time. How was her constitution to be ratified? By submission to the people. She has complied 
 with every requirement. She entered the Union at the time prescribed; her constitution is ratified in 
 the manner prescribed; and yet she is now as completely postponed and ignored as if she had disregarded 
 all her obligations. Permit me to cite two precedents, which I hope will prove conclusive in this case. 
 In 1802 an enabling act was passed for Ohio somewhat similar to, but not so decisive as, the Minnesota 
 act. The authority given was to form a constitution and State government, and then follows this language : 
 "The State, when formed, shall be admitted into the Union on the same footing with the original States." 
 This was then considered an authorized admission of the State, and the only act of admission that ever 
 took place in the case of Ohio, and that State is now in the Union under and by virtue of the authority 
 of that enabling act. 
 
 The enabling act in the case of Indiana contains the following language: "The State, when formed, 
 shall be admitted into the Union." Mark the difference in the two acts. In the case of Minnesota 
 authority is given to come in at the present time. In the case of Indiana a promise is given for her 
 admission at some future time: under the law Indiana adopted a constitution and elected Representa- 
 tives, as Minnesota has done. 
 
 On the 2d December, 1816, Mr. Hendricks, Representative from the new State, presented his 
 credentials in the House of Representatives, was sworn in, was appointed on a committee, and was 
 allowed to vote and act as a Member of that body; and yet it was not until ten days afterwards (on the 
 12th of the same month) that a joint resolution was passed by both branches of Congress formally admit- 
 ting Indiana. This kind of resolution was then considered form — nothing but mere form — something 
 which Congress has the power to observe or omit at pleasure, but something with which the State has 
 no concern, and which can not affect its right. This was then the opinion fif John C. Calhoun, at that 
 time a Member of the other House; and this, we may fairly presume, woxdd Ije his opinion if he were a 
 Member of the Senate now. WTien the precedent was established Daniel Webster was also a Member 
 of the House, and gave it the weight of his authority. But Minnesota stands upon far stronger grounds 
 than Ohio or Indiana — the ground of Congressional authority. If this authority is good, Minnesota can 
 not fail. This is a great question — a question of constitutional right, of national faith. Congressional 
 faith, I sincerely hope, will be held sacred and inviolate in the case of Minnesota by the prompt admis- 
 sion of her Representatives. My sense of duty to my constituents compels me, through you, to make 
 this appeal to the Senate. 
 
 I have the honor to be, your obeaient servant, 
 
 James Shields, 
 Senator from Minnesota. 
 
 Hon. John J. Crittenden. 
 
 Mr. Crittenden also presented credentials in due form, showing the election of 
 Mr. Shields by the legislature of Minnesota on December 19, 1857. 
 
 A discussion arose as to whether or not Minnesota was a State in the Union 
 by virtue of the enabling act, or whether an act of admission would be necessary. 
 Mr. Crittenden, in arguing that there had been no act of admission, cited the case 
 of Louisiana in addition to those of Ohio and Indiana quoted by Mr. Shields. 
 
 A motion that the subject lie on the table was disagreed to — yeas 22, nays 26. 
 
 Then, after lengthy debate, the Senate, on motion of Mr. Robert Toombs, of 
 Georgia, agreed to the following: 
 
 Resolved, That the question of the admission of James Shields to a seat in this body, as a Senator 
 from the State of Minnesota, be referred to the Judiciary Committee, with instructions to inquire whether 
 or not Minnesota is a State of the Union under the Constitution and laws.
 
 § 400 ELECTORATES IN NEW STATES AND TERRITORIES. 367 
 
 The Judiciary Committee consisted of Messrs. James A. Bayard, of Delaware; 
 Robert Toombs, of Georgia; George E. Pugh, of Ohio; Judah P. Benjamin, of 
 Louisiana; James S. Green, of Missouri; Jacob Collamer, of Vermont; and Lyman 
 Trumbull, of Illinois. On March 4, 1S5S,' Mr. Bayard submitted the following 
 report : 
 
 Having coMidered the question as to which they were by the the foregoing resolution instructed 
 to inquire, the committee have unanimously adopted the following resolution: 
 
 Resolved, That Minnesota is not a State of the Union under the Constitution and laws. 
 
 Minnesota was admitted into the Union by the act approved May 11, 1858,' 
 and thereupon her Senators-elect were admitted. 
 
 400. The election case of James White, Delegate from the Territory- 
 south of the Ohio, in the Third Congress. 
 
 In 1794 the House admitted a Delegate on the theory that it might 
 admit to the floor for debate merely anybody whom it might choose. 
 
 The office of Delegate was established by an ordinance of the Conti- 
 nental Congress, confirmed by a law of Congress. 
 
 The House decided in 1794 that the oath should not be administered 
 to a Delegate. 
 
 The legislation as to the privileges of the Delegate was enacted after 
 the House had recognized the office. 
 
 In 1794 the Delegate seated by the House w^as elected by the legisla- 
 ture of the Territory and not by the people. 
 
 On November 11, 1794,^ the credentials of James White as a Representative 
 of the Territory of the United States south of the river Ohio, were laid before the 
 House and referred to a select committee, who, on November 14, made the following 
 report: 
 
 That, by the ordinance for the government of the Territory of the United States northwest of the 
 river Ohio, section 9, it is provided "that, so soon as there shall be five thousand free male inhabitants of 
 full age in the district, upon giving proof thereof to the governor, they shall receive authority to elect 
 representatives to represent them in a general assembly," and by the twelfth section of the ordinance, 
 "as soon as a legislature shall be formed in the district, the council and house, assembled in one room, 
 shall have authority, by joint ballot, to elect a Delegate to Congress, who shall have a seat in Congress, 
 with a right of debating, but not of voting, during this temporary government." Full effect is given to 
 this ordinance by act of Congress August 7, 1789. 
 
 That, by the deed of cession of the Territorj- south of the river Ohio to the United States, in the 
 fourth article, it is also provided "that the inhabitants of the said Territory shall enjoy all the privi- 
 leges, benefits, and advantages set forth in the ordinance of the late Congress for the government of the 
 Western Territory' — that is to say, Congress shall assume the government of the said Territory, which they 
 shall execute in a manner similar to that which they support in the Territory west of the Ohio, and shall 
 never bar or deprive them of any privilege which the people in the Territorj' west of the Ohio enjoy." 
 
 The cession, on these conditions, was accepted by act of Congress on the 2d of April, 1790. 
 
 By an act passed the 26th of May, 1790, for the government of the Territorj' of the United States 
 south of the river Ohio, it is enacted "that the inhabitants shall enjoy all the privileges, benefits, and 
 advantages set forth In the ordinance of the late Congress for the government of the Territory of the United 
 States northwest of the river Ohio. And the government of the said Territory south of the Ohio shall be 
 
 1 Globe, p. 957, Senate Report No. 104. 
 
 2 11 Stat. L., p. 285. 
 
 ^ Second session Third Congress, contested elections in Congress from 1789 to 1834, p. 85.
 
 368 PRECEDENTS OF THE HOUSE OF KEPEESENTATIVES. § 401 
 
 similar to that which is now exercised in the Territory northwest of the river Ohio, except so far as is 
 otherwise pro\'ided in the conditions expressed in an act of Congress of the present session, entitled 
 'An act to accept a cession of the claim of the State of North Carolina to a certain district of western 
 territory.' " 
 
 The committee are of opinion that James White has been duly elected as Delegate from the Terri- 
 tory of the United States south of the Ohio, on the terms of the foregoing acts. They therefore submit 
 the following resolution : 
 
 Resolved, That James White be admitted to a seat in this House as a Delegate from the Territory 
 of the United States south of the river Ohio, with a right of debating, but not of voting. 
 
 This resolution gave rise to considerable debate, it being tirged in opposition 
 that the Constitution provided for no such admission to the House, and that it 
 would be more proper to admit him to the Senate. It was said, also, that he should 
 be admitted only in accordance with a law of Congress. In opposition it was main- 
 tained that the House might admit and give the right of debating to whomsoever 
 it might please, as it might admit an advocate to plead in any particular case, and 
 that a law was not necessary, since they need not and ought not to consult the 
 Senate in such a matter. 
 
 On November 18 the House agreed to the report of the committee. 
 
 A question then arose as to whether or not the oath should be administered to 
 Mr. Smith. 
 
 The question being taken, it was decided — yeas 32, noes 42 — that the Delegate 
 should not take the oath, the argument that his inability to vote rendered the oath 
 unnecessary.' 
 
 During this session a bill was passed allowing the Delegate pay and the privilege 
 of franking letters.- Tliis legislation was in the form of a bill extending the franking 
 privilege specifically to James White and providing for the same compensation 
 received by a Member. 
 
 401. The election case of Narsworthy Hunter, Delegate for Missis- 
 sippi Territory, in the Seventh Congress. 
 
 In 1801 the oath was administered as a matter of course to a Delegate 
 from a Territory. 
 
 On December 21, 1801,^ the House, on report of the Committee on Elections, 
 to whom had been referred the credentials of Narsworthy Hunter as Delegate from 
 Mississippi Territory, decided that the Territory was entitled to a Delegate, with a 
 right to debate, but not to vote, and that Mr. Hunter was elected such Delegate. 
 As in the case of James Wliite, the title of the territory to a Delegate was referred 
 back to the ordinance of 1787, certain provisions of which were by acts of April 7, 
 1798, and May 10, 1800, applied to Mississippi Territory. 
 
 Mr. Hunter had appeared on December 7, at the time of the organization of 
 the House, and had taken the oath with the Members.* 
 
 ' The compiler of the election cases has inserted a footnote explaining that in practice it was usual 
 (in 1834, when the work was published) for the Delegates to be sworn. See also Section 401. 
 n Stat. L., p. 403. 
 
 2 First session Seventh Congress, Contested Elections in Congress from 1789 to 1834, p. 120 
 * Journal, p. 5.
 
 § -402 ELECTORATES IN NEW STATES AND TERRITORIES. 369 
 
 402. The election case of Paul Fearing, Delegate from the territory- 
 northwest of the river Ohio, in the Seventh Congress. 
 
 A Delegate was not dispossessed of his seat because a portion, but not 
 all, of his territory had been erected into a State. 
 
 On January 31, 1803', the Committee on Elections reported on the following 
 proposition, wliich had been referred to them previously: 
 
 That inasmuch as the late territory of the United States northwest of the river Ohio have, by virtue 
 of an act of Congress passed on the 1st day of May, 1802,' formed a constitution and State government, 
 and have thereby and by virtue of an act of Congress aforesaid become a separate and independent 
 State, by the name of "Ohio," that Paul Fearing, a Member of this House, who was elected by the late 
 territorial government of the territory northwest of the river Ohio, is no longer entitled to a seat in this 
 House. 
 
 The committee reported the following: 
 
 Resolved, That Paul Fearing, the Delegate from the territorj' northwest of the river Ohio, is still 
 entitled to a seat in this House. 
 
 The report was laid on the table. 
 
 Mr. Fearing has taken his seat on the first day of the Congress.^ The Member 
 from the State of Ohio did not appear until the next Congress.* 
 
 403. The election case of Doty v. Jones, from Wisconsin Territory, in 
 the Twenty-fifth Congress. 
 
 The term of a Delegate need not necessarily begin and end with the 
 term of Congress." 
 
 In 1839 the Committee on Elections held that the office of Delegate 
 ceased when the Territory ceased to exist as a corporation by becoming a 
 State. 
 
 At the session of 1838-39° the Committee on Elections reported on the case of 
 Doty V. Jones, from Wisconsin Territory. This case involved merely a question 
 as to when Mr. Dotj^ should take the seat. 
 
 ' Second session Seventh Congress Contested Elections in Congress, from 1789 to 1834, p. 127; 
 Journal, pp. 297, 313, 314; Annals, pp. 413, 448. 
 
 -This act, actually approved April 30, 1802 (2 Stat. L., p. 174), did not include in the new State of 
 Ohio all the territory of the ''late territory of the United State northwest of the river Ohio," but provided 
 ■'that all that part of the territory of the United States northwest of the river Ohio heretofore included 
 in the eastern division of said territory and not included within the boundary herein prescribed for the 
 said State is hereby attached to and made a part of the Indiana Territory from and after the formation 
 of the said State." Indiana had been organized by act of May 7, 1800 (2 Stat. L., p. 58). Indiana 
 was not allowed a Delegate until the act of February 27, 1809 (second session Tenth Congress, 2 Stat. 
 L., p. 525). So it is evident that Mr. Fearing would remain as the Delegate for an increment of popu- 
 lation left out by the new boundaries of Ohio. The act of May 1, 1802, provided that "the said State, 
 when formed, shall be admitted into the Union upon the same footing with tlie original States in all 
 respects whatsoever." 
 
 ^Journal, p. 5. 
 
 ' First session Eighth Congress, Journal, p. 403 (Gales and Seaton ed.). 
 
 ^But since 1848 (9 Stat. L., p. 349) the acts admitting States have required that the term of the 
 delegate should begin and end with a single Congress. 
 
 « Third session Twenty-fifth Congress, 1 Bartlett, p. 6; Rowell's Digest, p. 107; Report No. 7, 
 Journal, p. 191. 
 
 5904— VOL 1—07 24
 
 370 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 403 
 
 In October, 1S35, Mr. George W. Jones had been elected Delegate from the 
 Territory of Michigan for a term extending, under the existing law for Michigan, 
 for two years from the date of his certificate. He took his seat in December, 1835, 
 and would naturally have served until about that time in 1837. But by act of June 
 15, 1836, Micliigan was admitted to the Union on condition that she should by 
 convention ratify certain boundaries^ which was done December 15, 1836. The 
 committee therefore considered that the Territory of Michigan ceased to be on June 
 15, 1836, and that Mr. Jones ceased to be her Delegate on that day, which was 
 about a year and a half before his term would naturally have expired.' 
 
 In October, 1836, Mr. Jones was elected Delegate from the adjacent Territory 
 of Wisconsin, which had just been organized. The act of organization provided 
 that he should serve "for a term of two years." Air. Jones took liis seat Decem- 
 ber 5, 1836, and the term of two years would, if computed from the time of election 
 or qualification, expire in October or the 1st of December, 1838. 
 
 And so, naturally, Mr. James D. Doty, elected on September 10, 1838, would 
 take his seat at the December session of 1838, which was the last and not the first 
 or long session of the Congress, and consequently would finish out the current 
 Congress and sit for the first half of the next Congress. 
 
 The natural objection then arose that this should not be, because the term of 
 the Delegate, like the term of the Member from a State, should be for the term 
 of the Congress, and should not comprise a portion of two Congresses. In support 
 of this contention a clause of the act of March 3, 1817, was cited, wherein it was 
 provided that Delegates "shall be elected every second year for the same term of 
 two years for which Members of the House of Representatives of the United States 
 are elected." Furthermore, there was a question as to when Mr. Jones's term as 
 Delegate from Michigan expired, and so that term might work out the time of 
 beginning for the term of Mr. Doty. 
 
 The committee did not consider that the law of 1817, even supposing it not 
 to have been modified by the subsequent act organizing Wisconsin and providing 
 simply that the Delegate should "serve for a term of two j^ears," necessarily meant 
 that Delegates should serve the same two years for which Members of the House 
 were elected. The committee would construe it to mean that the duration of 
 service should be the same, but not necessarily contemporaneous. Although not 
 entirely confident of this construction, the committee found it fortified by the fact 
 that previous to that law Delegates were elected annually. The Constitution was 
 silent as to Delegates, which were mere creatures of law, whose terms of service 
 might be long or short and commence and terminate at such periods as Congress 
 might dictate. The law organizing Wisconsin, unlike the Michigan law, did not 
 specify when the term should begin ; but in cases where no time is specified for the 
 performance of a duty it is common to constnie that it is to be performed forth- 
 with. Any other construction would, when Mr. Jones was elected Delegate from 
 Wisconsin, have left the Territory iinrepresented for part of a Congress, while he 
 
 ' Congress actually passed (on January 26, 1837) another act for admission of Michigan as a State, 
 and Isaac E. Crary, elected Representative from the State, was not permitted to take his seat until 
 January 27, 1837 (2d sess. 24th Cong., Journal, pp. 288, 290; Globe, p. 134.)
 
 § 404 ELECTORATES IN NEW STATES AND TEEKITORIES. 371 
 
 would have been awaiting the beginning of the term of the new Congress on March 
 4, 1837. So the committee decided that Mr. Jones's term did not last until March 
 4, 18.39, and therefore reported the following resolution, which was agreed to by 
 the House — yeas 16-5, nays 25: 
 
 Resolved, That James Duane Doty is entitled to a seat in this House as a Delegate from Wisconsin 
 Territory, and that George W. Jones is not so entitled. 
 
 404. The election case of Henry H. Sibley, claiming a seat as Dele- 
 gate from "Wisconsin, in the Thirtieth Congress. 
 
 The House admitted a Delegate from a county left under the old Ter- 
 ritorial laws after the remainder of "Wisconsin Territory had become a 
 State. 
 
 By the act of May 29, 1848,' Wisconsin, which had been a Territory, with a 
 Territorial Delegate, was admitted to the Union as a State. But the boimdaries 
 of the new State left out a portion of the old Territory of "Wisconsin lying beyond 
 the St. Croix River, comprising a population of about 4,000 and constituting what 
 had been a judicial district of the old Territory, organized as an entire coimty. 
 The Delegate who had represented Wisconsin Territory had resigned when the 
 State was formed. So the people in the portion left without the State boundaries 
 had no representation in Congress. 
 
 The governor of the Territory having become an United States Senator from 
 the new State, the secretary of the Territory, upon whom under the law of the 
 Territory the duties devolved, removed to the region beyond the St. Croix and 
 assumed the duties of governor. He issued his proclamation as acting governor, 
 ordering a special election to fill the vacancy caused by the resignation of the 
 Delegate who had represented the whole Territory of Wisconsin. And in piu"- 
 suance of that proclamation the people beyond the St. Croix elected Henry H. 
 Sibley, who in due time presented his certificate of election, under the hand of the 
 acting governor and with the seal of the "Territory of Wisconsin" attached. 
 
 On December 4, 1848,' at the beginning of the second session of the Congress, 
 Mr. Sibley's credentials were presented to the House, but objection was made to 
 swearing him in on his prima facie showing, and the credentials were referred to 
 the Committee of Elections. 
 
 The majority of the committee reported a resolution that Mr. Sibley be admitted 
 to a seat as Delegate of the Territory of Wisconsin. They argued that these people 
 as part of the old Territory of Wisconsin had once enjoyed the right of representa- 
 tion and that they were still entitled to it by natural right as well as by the usages 
 of the Government. The act of Congress admitting the State of Wisconsin had 
 left them outside its benefits, but had not abrogated any of the old law organizing 
 the Territory, and they were therefore entitled to all theb rights tmder the terms 
 of the law organizing the original Territory of Wisconsin. Those rights had, more- 
 over, been guaranteed by the ordinance of 1787, which had been reaffirmed by 
 Congress. The omission of Congress to repeal the law organizing the Territory 
 of Wisconsin, as well as the failure to make any other law for the government of 
 
 ' Second session Thirtieth Congress, House Report Xo. 10; 1 Bartlett, p. 102; Rowell's Digest, j). 127. 
 = Globe, p. 2.
 
 372 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 405 
 
 the people beyond the St. Croix, were proof conclusive that the old Territorial law 
 was intended to operate in the residuum of the Territory. Moreover, acting on 
 the authority of the State Department, the officers of the present Territory were 
 holding the offices under the original appointments made before the State of Wis- 
 consin was formed. The committee cited the case of Delegate Paul Fearing, from 
 the Territory of Ohio. 
 
 The minority of the committee contended that the formation of the State of 
 Wisconsin annulled by implication the whole political organization of the Territory 
 of Wisconsin. A special repealing clause was not necessary and had not been 
 inserted in the laws organizing other States. Neither had it been usual to grant 
 Delegates to Territories in the fu-st stages of their existence. When the people 
 had become numerous enough to entitle them to legislative assemblies it had been 
 usual to allow them Delegates in Congress. The authority of the precedent of 
 Paul Fearing was denied. The fact that the people of the residuum county would 
 be left without laws might be a matter to be remedied by law, but was not such as 
 to require the interposition of the House in the manner proposed. 
 
 On January 15, by a vote of 124 to 62, the House agreed to the resolution 
 admitting Mr. Sibley as the Delegate of the Territory of Wisconsin.' 
 
 405. Tlie election cases of Hugh. N. Smith and William S. Meservey, 
 claiming seats as Delegates from New Mexico in the Thirty-first Con- 
 gress. 
 
 The House declined to admit a Delegate from New Mexico before the 
 organization of the Territory had been authorized by law. 
 
 The House declined to give prima facie effect to the credentials of a 
 Delegate elected by a convention in an unorganized Territory. 
 
 The House held that there should be prior legislation by Congress 
 before the admission of a Delegate. 
 
 On February 4, 1850,^ the credentials of Hugh N. Smith, as Delegate from the 
 Territory of New Mexico, were presented to the House. The credentials were in 
 the following form: 
 
 Be it remembered that in the convention of delegates chosen from the seven different counties of 
 New Mexico to assemble in the city of Santa Fe on the 24th day of September, A. D. 1849, for the pur- 
 pose of forming and proposing the basis of a government which the people of Kew Mexico desire should 
 be granted to them by the Congress of the United States, and for the purpose of choosing a Delegate to 
 represent New Mexico in the House of Representatives of the Thirty-first Congress of the United States, 
 Hugh N. Smith was chosen by a majority of all the convention, and declared duly elected said Delegate. 
 
 Given under our hands, at Santa Fe, this twenty-sixth day of September, in the year of our Lord 
 one thousand eight hundred and forty-nine. 
 
 Antonio Jose Martinez, 
 Presidente de la Convensione. 
 
 James H. Quinn, Secretary. 
 
 The House did not swear in the Delegate on this prima facie showing, but 
 referred the credentials to the Committee on Elections. 
 
 This committee reported on April 4. It was ascertained that New Mexico was 
 acquired by the treaty of Guadaloupe-Hidalgo; that previously it had been a 
 
 ' Globe, p. 260. 
 
 2 First session Thirty-first Congress, Journal, p. 463; Globe, pp. 279, 412; 1 Bartlett, p. 109.
 
 § 405 ELECTORATES IN NEW STATES AND TERRITORIES. 373 
 
 department of Mexico, governed by its o\vn legislature and having representation in 
 the National Congress. But when acquired by the United States it came as 
 territor}- only, not retaining its old political organization. An army officer was 
 stationed there as mihtarv' commander, but there was no pohtical organization known 
 to the laws. The convention which chose Mr. Smith Delegate was summoned by 
 proclamation of the army officer in command. 
 
 The further fact appeared that the larger portion of the Territory was claimed 
 by the State of Texas and had been so claimed since 1836. This claim still existed 
 although not admitted by the Executive of the United States. Mr. Smith, the 
 Delegate-elect, was himself a resident of the portion claimed by Texas, as were the 
 larger portion of his constituents. 
 
 Without considering the claim of Texas, for the time being, the majoritv of the 
 committee came to the conclusion that Delegates admitted by the House had in 
 every case been chosen in accordance with laws enacted by Congress. The case 
 of Mr. Sibley, of Wisconsin, was not an exception, since he was admitted on the 
 theory that a Territory of Wisconsin still existed. The admission of Mr. Smith 
 would be construed as a quasi recognition of New Mexico as an organized govern- 
 ment, a proceeding not within the constitutional power of the House. To admit 
 Mr. Smith simply as the representative of the inhabitants would be anomalous and 
 unwise. 
 
 The minority of the committee contended that the privilege of citizens of a 
 Territory or portion of the Union not organized into a State to have a Delegate 
 depended neither on the Constitution nor law, but on the pleasure of the House 
 alone. The discretion of the House should be exercised in favor of the right of 
 representation. New Mexico was a populous region, whose people had enjoyed an 
 organized pohtical existence under the former sovereignty. While her former 
 condition could not be considered as estabhshing her claim to representation, yet it 
 showed her capacity for self-government and constituted a strong argument to 
 control the discretion of the House, so that she might not be kept in a worse situation 
 than she was in before. 
 
 As to the justness of the claim of Texas the majority passed no opinion. If it 
 was just certainly the people were already represented, and might not be further 
 represented. Whether just or not the claim existed, and it was not the part of the 
 House to express judgment on it by admitting Mr. Smith. The minority held that 
 the claim of Texas might be admitted as just, and yet Mr. Smith might be admitted 
 properly as representing a residuum of people without the boundaries claimed by 
 Texas. Furthermore, Texas had not enforced her claim and exercised no authority 
 over the disputed territory ; and New Mexico should not be neglected because of the 
 mere claim of Texas. 
 
 The majority of the committee recommended the following: 
 
 Resolved, That it is inexpedient to admit Hugh. N. Smith, esq., to a seat in this House as a Dele- 
 gate from New Mexico. 
 
 The minority proposed the following: 
 
 Resolved, That the said Hugh X. Smith be admitted to a seat in the House of Representatives 
 of the United States as a Delegate from New Mexico.
 
 374 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 406 
 
 The report was debated at length on May 22 and July 15-18.' Besides the 
 merits of the case, there seems to have developed some considerations relating to 
 the question of slavery and a disposition to resort to dilatory tactics. Finally, 
 on July 19, the whole subject was laid on the table, by a vote of 105 yeas, 94 nays. 
 
 406. On December 10, 1850,^ the credentials of William S. Meservey as Dele- 
 gate from the Territory of New Mexico were presented and referred to the Com- 
 mittee on Territories, no motion being made to swear in Mr. Meservey. Later 
 the reference was changed to the Committee on Elections, which reported on Feb- 
 ruary 6, 1851.^ On May 25, 1850, before a decision had been reached by the House 
 in the case of Mr. Smith, another convention had assembled at Santa Fe and estab- 
 lished a constitution for a State government. On June 20, 1850, the voters of the 
 Territory ratified the constitution and elected officers, including a Representative 
 in Congress. Mr. Meservey was chosen to this office. The State officers issued 
 a credential to Mr. Meservey as a "Representative," but he claimed a seat as a 
 "Delegate." The committee, after commentmg on this fact, went on to argue 
 that it would be a dangerous precedent to admit a Delegate not provided for by 
 law of Congress and would overrule the usages of sixty years. Moreover, there 
 was now in force an act of Congress providing for a Territorial Delegate from New 
 Mexico. This act became a law on September 9, 1850, after the decision in IVIr. 
 Smith's case. So the committee reported against the admission of Mr. Meservey. 
 The report was not acted on by the House. 
 
 407. The election case of Almon W. Babbitt, claiming a seat as a Dele- 
 gate from the so-called State of Deseret, in the Thirty-first Congress. 
 
 The House decided it inexpedient to admit a Delegate chosen by a com- 
 munity not yet made a Territory by law. 
 
 On April 4, 1850,'' the Committee on Elections reported on these credentials: 
 
 Provisional State of Deseret, ss : 
 
 I hereby certify that, pursuant to a joint resolution passed by both houses of the general assembly 
 of this State, Almop W. Babbitt, esq., was on the 5th day of July, 1849, elected by both branches of 
 the general assembly a Delegate to the Congress of the United States, to present the memorial of said 
 general assembly and otherwise represent the interests of the inhabitants of this State in Congress. 
 
 Given under my hand and the great seal of the State of Deseret, at the city of the Great Salt Lake, 
 this twenty-fifth day of July, 1849. 
 
 [seal.] Willabd Richards, 
 
 Secretary of Slate. 
 
 Mr. Babbitt had not attempted to take a seat on these credentials in the first 
 instance, and after examination the committee found that the naemorial presented 
 did not ask the admission of the Delegate imtil "some form of government" had 
 been adopted. Moreover, the so-called State of Deseret had been formed by an 
 irregularly called convention of citizens representing a region not yet organized 
 by law of Congress. To admit Mr. Babbitt would be for the House to give a quasi 
 recognition of the legal existence of the State of Deseret and an implied ratffication 
 
 ' Journal, pp. 1142, 1150; Globe, pp. 1038, 1375, 1383, 1386, 1392, 1399, 1411. 
 
 ^ Second session Thirty-first Congress, Globe, p. 22. 
 
 n Bartlett, p. 148; RoweU's Digest, p. 135. 
 
 ■•First session Thirty-first Congress, 1 Bartlett, p. 116; RoweU's Digest, p. 130.
 
 § 408 ELECTOKATES IN NEW STATES AND TEERITOEIES. 375 
 
 of its constitution. Such recognition and ratification were within the power of 
 Congress alone. 
 
 So the committee recommended this resolution : 
 
 Resolved, That it is inexpedient to admit Almon W. Babbitt, esq., to a seat in this body as a Dele- 
 gate from the alleged State of Deseret. 
 
 On July 18, 19, and 20 ^ the resolution was debated in Committee of the Whole. 
 There were arguments in favor of admitting a representative of the people of Deseret 
 and the position of the committee as to the matter of recognition was combatted. 
 The slavery question also had some bearing on the result. 
 
 Finally, by a vote of yeas 104, naj's 78, the resolution was laid on the table. 
 
 408. The election case of Fuller v. Kingsbury, from the Dakota por- 
 tion of the old Territory of Minnesota, in the Thirty-fifth Congress. 
 
 Duty of the Speaker as to recognition of a Delegate after the Territory 
 has been admitted as a State. 
 
 On May 27, 1858,- several days after the Representatives from the State of 
 Minnesota had been qualified, one of them, Mr. James M. Cavanaugh, rising to a 
 question of privilege, offered this resolution: 
 
 Resolved, That the Conunittee on Elections be authorized to inquire into and report upon the right 
 of W. W. Kingsbury to a seat upon this floor as Delegate from that part of the Territory of Minnesota 
 outside the State limits. 
 
 In the debate a question was raised as to recognition of Mr. Kingsbmy, and 
 the Speaker^ said he had continued to recognize him as Delegate in accordance 
 with past precedents. 
 
 Thereupon an amendment was adopted providing: 
 
 And in the meantime no person shall be entitled to occupy a seat as a Delegate from^ said Territory. 
 
 This amendment was adopted, and the resolution as amended was agreed to. 
 
 On Jime 3,* when the committee had reported in favor of allowing Mr. Kings- 
 bury to retain his seat, a motion was proposed to lay the report on the table, and 
 a question arose as to the effect of agreeing to the motion. 
 The Speaker said: 
 
 The resolution referring the subject to the Committee of Elections provided that the committee 
 be authorized to inquire into and report upon the right of W. W. Kingsbury to his seat upon this floor 
 as Delegate from that portion of the Territory of Minnesota outside of the State limits, and that in the 
 meantime no person should be entitled to occupy a seat as Delegate from the said Territory. The Chair 
 is of opinion that when the committee submitted a report to the House the proviso ceased to operate, 
 and the Chair, following the precedents, without intimating whether the Chair thinks the precedents 
 right or wrong, would recognize the Delegate from Minnesota. 
 
 409. The election case of Fuller v. Kingsbury, continued. 
 
 After the admission of Minnesota as a State, the House declared por- 
 tions of the old Territory outside the limits of the State not entitled to a 
 Delegate. 
 
 'Journal, pp. 11-53, 1155; Globe, pp. 1413, 1418, 1423. 
 
 * First session Thirty-fifth Congress, Journal, p. 932; Globe, p. 2428. 
 
 ^ James L. Orr, of South Carolina, Speaker. 
 
 ' Globe, pp. 2677, 2678.
 
 376 
 
 PRECEDENTS OF THE HOUSE OF KEPKESENTATIVES. 
 
 § 409 
 
 The State of Minnesota being admitted, the House suspended the 
 functions of the Delegate from the old Territory. 
 
 On May 29, 1858/ the Committee on Elections reported in the case of Fuller v. 
 Kingsbury, of the portion of the former Territorj^ of Minnesota not included witliin 
 the limits of the new State. The conunittee, after quoting from the law establish- 
 ing the Territory, and citing the fact that the Territory of Minnesota had been rep- 
 resented without interruption, by a Delegate elected in conformity with law, say : 
 
 It further appears that William W. Kingsbury was regularly elected on the 13th day of October, 1857, 
 as such Delegate, and, in that capacity, was, at the opening of the present session of Congress, admitted 
 to, and has held, a seat in the House of Representatives until the passage of the act of May, 1858, for 
 the admission of the State of Minnesota into the Union, when his right to retain it was brought in ques- 
 tion. Of the legality of the election of Mr. Kingsbury as the Delegate from the Territory of Minnesota 
 there seems to be no doubt. * * * The number of inhabitants in the Territory not included in the 
 bounds of the State is not very clearly settled, but, as far as can be learned, it amounts to several thou- 
 sands, and is said to be rapidly increasing. There were five counties established by law, and two of 
 them fully organized, with the proper officers for regular municipal government. * * * 
 
 Does the admission into the Union of a State formed out of a part of the original Territory of 
 Minnesota annul the election of the Delegate, repeal or set aside the law creating the Territory, and all 
 other laws; deprive the people inhabiting that part of the Territory not included in the limits of the new 
 State of the right or privilege of being heard in the House of Representatives by an agent or Delegate; 
 substitute anarchy for a government of law, and resolve society into its original elements? Such is not 
 the opinion of your committee. There is nothing in the act authorizing the people of Minnesota to form 
 a constitution and State government, nor in the act for the admission of the State of Minnesota into the 
 Union, which repeals in anywise the law creating the Territory, or deprives the people inhabiting that 
 part not included in the new State of any rights or privileges to which they were entitled under any 
 laws existing at the time of the admission of that State. It matters not whether one State or half a dozen 
 have been carved out of an organized Territory; if a portion remains, and, more especially, if inhabited, 
 and counties and towns, with their corporate governments, exist, created by law, it would seem to be 
 a most violent presumption to hold that they became eo instante upon the admission of the State a dis- 
 franchised people — a mere mob or rabble. The fact that the admitted State bears the same name as the 
 Territory may lead to some confusion of ideas, but it does not alter the fact. The existence of the State 
 of Minnesota does not destroy the existence of the Territorj' of Minnesota, nor deprive the inhabitants 
 of such Territory of any of their rights. No such result can be by implication. The Territorial law must 
 be repealed before such consequences could follow, and even then a grave question would arise here how 
 far such repeal could operate upon the rights of the people. 
 
 The committee then cite the cases of Delegates Fearing and Sibley in support 
 of their view. 
 
 As to the memorial of A. G. Fuller and his certificate of election under the 
 hands of the county officers of Midway County, in the Temtory of Dakota, the 
 majority say that there is no Territory of Dakota authorized to elect a Delegate. 
 The region named as Dakota is admitted to be the residue of the Territory of Min- 
 nesota, already represented by Mr. Kingsbury. 
 
 Therefore the majority of the committee reported resolutions that Mr. Kings- 
 bury be allowed to retain his seat "as a Delegate from the Territorj- of Minnesota." 
 
 The minority of the committee base their argument on a question of fact which 
 is disputed. The majority of the conunittee had said : 
 
 The committee are informed, on what they consider good authority, that * * * at the election 
 for Delegate to Congress, the people of this so-called Territory of Dakota, or a part of them, did vote for 
 Mr. Kingsbury for their Delegate, and they so claim him to be, notwithstanding the admission of the 
 State of Minnesota into the Union. 
 
 ' First session Thirty-fifth Congress, 1 Bartlett, p. 251; Rowell's Digest, p. 1-55.
 
 § 409 ELECTORATES IN NEW STATES AND TERRITORIES. 377 
 
 The minority take issue on this point, saying: 
 
 On the said 13tli day of October, 1857, the people resident in the limits of the State voted entirely 
 to themselves. They elected a Delegate (Mr. Kingsburj-), who had opposition; also elected Representa- 
 tives. On the same day the inhabitants outside said State limits held a separate election for themselves 
 and elected A. G. Fuller their Delegate, said Fuller also having an opponent. The people outside the 
 State limits acted and voted separately and independently; so did the inhabitants within the State. 
 
 Section 14 of the act organizing the Territorj' of Minnesota, approved March 3, 1849, provides that a 
 Delegate to the House of Representatives of the United States may be elected by the voters qualified to 
 elect members of the legislative assembly. The election for governor. State officers, members of assem- 
 bly, and Representatives, as well as Delegates, was confined to the voters within the limits of the proposed 
 State. No polls were opened for these elections to the people outside the limits of the proposed State. 
 
 When the reports were debated, on June 2 and 3,' there was controversy over the 
 point, and letters were presented from Territorial officers sho-\ving that votes 
 were cast for Mr. Kingsbury in the portion of the Territory outside the limits of the 
 proposed State. But this fact was not settled so conclusively that it could be said 
 to be established. 
 
 The minority alleged that yir. Kingsbury was not a resident of the portion of 
 Minnesota or Dakota which he sought to represent, but that he lived within the 
 limits of the new State. In reply to this it was declared that there was no provision 
 of law requiring a Delegate to be a resident of the Territory he represented. 
 
 The minority further urged : 
 
 We further find and report that the people residing out of the limits of the proposed State, after 
 being separated, in anticipation of a separate Territorial organization for the remaining Territory, under 
 the new name of Dakota, held an election for a Delegate on the 13th of October, A. D. 1857, as stated in 
 the memorial of A. G. Fuller, when the said A. G. Fuller received a large majority of the legal voters 
 resident in the said Territory', and he holds the best evidence thereof which the present imperfect legal 
 provisions in the Territory wUl admit of; and, according to the precedent in the case of H. H. Sibley, 
 from Wisconsin, would be entitled to his seat as a Delegate representing the resident citizens on the 
 remaining Territory', who voted for him, and who were not by law allowed to vote for or against W. W. 
 Kingsbury. 
 
 Therefore the minority recommended that Mr. Fuller be admitted in place of 
 Mr. Kingsbury. 
 
 On June 2 and 3 ^ the question was debated at length, the doubt as to whether 
 Mr. Kingsbury had been voted for by the people outside the limits assigned for the 
 new State figuring prominently. 
 
 Finally, by a vote of yeas 120, nays 80, the House amended the proposition of 
 the majority of the conunittee by substituting the following: ' 
 
 Resolved, That the admission of the State of Minnesota into the Union with the boundaries pre- 
 scribed in the act of admission operates as a dissolution of the Territorial organization of Minnesota; and 
 that so much of the late Territory of Minnesota as lies without the limits of the present State of Minnesota 
 is without any distinct legally organized government, and the people thereof are not entitled to a Delegate 
 in Congress until that right is conferred on them by statute. 
 
 The resolution as amended was then agreed to. 
 
 ' Globe, pp. 2660, 2679. 
 
 2 Globe, pp. 2660, 2677-2679. 
 
 'Journal, p. 1007.
 
 378 PHECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 410 
 
 410. The election case of J. S. Casement, claiming a seat as Dele- 
 gate from Wyoming, in the Fortieth Congress. 
 
 The House declined to give prima facie effect to credentials from a 
 Territory not yet organized. 
 
 After the passage of the act organizing the Territory of Wyoming, 
 but before the actual organization, the House declined to admit a Dele- 
 gate elected before the passage of the act. 
 
 On January 12, 1869,' Mr. Henry L. Dawes, of Massachusetts, claiming the 
 floor for a question of privilege, presented the credentials of Mr. J. S. Casement, 
 claiming to be Delegate-elect from the Territory of Wyoming, and asked that he 
 be sworn in. 
 
 A question being raised, it was admitted that the Territory had not been 
 organized, and that Mr. Casement had not been regularly elected. Thereupon, 
 after debate, the credentials were referred to the Committee on Elections, and Mr. 
 Casement was not sworn in. 
 
 On February 23 ^ Mr. Burton C. Cook, of Illinois, presented the report of the 
 committee, as follows : 
 
 The Territory is not yet organized. Section 17 of the act to provide for the temporary government 
 for the Territory of Wyoming, approved July 25, 1868, is as follows: 
 
 "This act shall take effect from and after the time when the executive and judicial officers herein 
 provided for shall have been duly appointed and qualified: Provided, That all general Territorial laws 
 of the Territory of Dakota in force in any portion of said Territory of Wyoming at the time this act 
 shall take effect shall be and continue in force throughout the said Territory until repealed by the 
 legislative authority of said Territory, except such laws as relate to the possession or occupation of mines 
 or mining claims." 
 
 Section 13 of the same act provides as follows: 
 
 "A Delegate to the House of Representatives of the United States, to serve during each Congress 
 of the United States, may be elected by the voters qualified to elect members of the legislative assembly. 
 The first election shall be held at such times and places and be conducted in such manner as the gov- 
 ernor shall appoint and direct, and at all subsequent elections the times, place, and manner of holding 
 elections shall be prescribed by law. The person having the greatest number of votes of the qualified 
 voters, as hereinbefore provided, shall be declared by the governor elected, and a certificate thereof 
 shall be accordingly given." 
 
 The election at which J. S. Casement claims to have been elected was held on the 8th day of October, 
 A. D. 1867. The bill above referred to was passed July 25, 1868, and has not yet taken effect, for the 
 reason that the executive and judicial officers provided for in said act have not been duly appointed 
 and qualified. The election laws of Dakota are still in force in that Territory. 
 
 The election held on the 8th day of October, A. D. 1867, was not held in pursuance of any law, 
 but was held in pursuance of a call made by a mass meeting, at which certain commissioners were 
 appointed to make arrangements for holding a general election. It is apparent that this election had 
 none of the safeguards provided by law to secure the purity of elections; no one could be punished for 
 illegal voting, or for receiving illegal votes, or for excluding legal votes, or for making false returns; 
 no qualifications of voters had been prescribed by law; not even a residence in the Territory was 
 required; no voting precincts had been established by law. Three persons, who sign their names as 
 commissioners of elections, have made a certificate that the election was held, and that J. S. Casement 
 was elected Delegate to Congress. A copy of this certificate is hereto annexed, marked "A." 
 
 The only other evidence adduced before the committee in support of the claim was an affidavit 
 of J. H. Hayfer, a copy of which is hereto annexed, marked "B." 
 
 It is not contended that there is any law entitling the claimant to a seat as a Member of this House, 
 
 'Third session Fortieth Congress, Journal, p. 142; Globe, pp. 310, 311. 
 
 2 House Report No. 30; 2 Bartlett, p. 516; Rowell's Digest, p. 229; Globe, p. 1400.
 
 § 411 ELECTOKATES IN NEW STATES AND TERRITORIES. 379 
 
 and it is apparent that, according to law, the first election must be holden in a very different manner 
 and the certificate be given by the governor; but it is insisted that it is a matter within the discretion 
 of the House, and that there are precedents which would justify the admission of the claimant to a 
 seat; and the admission of Members of Congress from Arkansas who were elected before the State con- 
 stitution was approved by Congress or the State admitted as one of the States, is cited. 
 
 This precedent is not in point for the reason that Arkansas was a State in the Union at the time 
 when the first Representatives from that State were admitted to seats in Congress, and the committee 
 find no precedent for the admission of a Member from a State or a Delegate from a Territory which 
 was not organized at the time the Member or Delegate was sworn and admitted to his seat. The Ter- 
 ritory of Wyoming is not now organized, and no reason can be given for the admission of the claimant 
 in this case which would not be equally good to sustain the claim of a Delegate from Alaska should 
 a mass meeting be convened at Sitka and a Delegate be elected by such meeting. 
 
 Therefore the committee recommended the adoption of a resolution declaring 
 that Mr. Casement was not entitled to a seat. 
 
 This report was not acted on by the House. 
 
 411. The election case of Mottrom D. Ball, claiming a seat as Dele- 
 gate from Alaska, in the Forty-seventh Congress. 
 
 The House declined to admit a Delegate from an unorganized Terri- 
 tory, although by treaty the people were entitled to the rights of citizens. 
 
 A proposition relating to the admission of a Delegate from an unor- 
 ganized Territory was held not to be a question of privilege. 
 
 On December 21, 1881 / Mr. Horace F. Page, of California, by unanimous consent, 
 presented the memorial of certain citizens of Alaska, together with a certificate of 
 the election of Mottrom D. Ball as Delegate to the House of Representatives from 
 the Territory' of Alaska. These were referred to the Committee on Elections. 
 
 On February 28, 1882,^ Mr. William H. Calkins, of Indiana, reported^ from the 
 committee this resolution, which was referred to the Committee on Territories: 
 
 Resolved, That M. D. Ball be not admitted to a seat in the Forty-seventh Congress as a Delegate 
 from the Territory of Alaska until the Committee on Territories shall report thereon, and that the matter 
 be continued until that time for further action. 
 
 The minority of the committee proposed with their views this resolution: 
 
 Resolved, That M. D. Ball be admitted to a seat in the Forty-seventh Congress as a duly elected 
 Delegate from the Territory of Alaska, with all the rights and privileges of Delegates from other Terri- 
 tories of the United States. 
 
 The majority did not make an argument, but the minority went at length into 
 reasons for seating Mr. Ball. They recited that under the treaty by which Alaska 
 had been ceded it had been stipulated that the inhabitants, except the imcivilized 
 natives, should be "admitted to the enjoyment of all the rights, advantages, and 
 immunities of citizens of the United States." 
 
 As Congress had passed no act in fulfillment of this obligation, the people of the 
 district had met m election and chosen delegates, who in convention adopted a 
 memorial and elected a Delegate. Reference was made to the case of James White, 
 in 1794, who was seated as a Delegate from the territory south of the Ohio River. 
 The minority summarized as follows the reasons for admitting Mr. Ball: (1) Rep- 
 resentation is one of certain rights and advantages to which this people are 
 
 ' First session Forty-seventh Congress, Joiu^al, p. 193; Record, p. 243. 
 
 ^Journal, p. 685. 
 
 ^ House Report No. .560.
 
 380 PRECEDENTS OF THE HOUSE OF KEPRESENTATIVES. § 412 
 
 entitled and were entitled at the time of their action; (2) having the vested title to 
 the present enjoyment of this right, they were debarred from its possession through 
 the failure of the partj^ obligated to its accordance to furnish the means whereby 
 they might attain it; (3) being so wrongfully debarred of an essential, a guaran- 
 teed, and an inherent right, by the fault of the authority that should have extended 
 it, they set about its acquisition through the exercise of means recognized as authori- 
 tative under similar circumstances; (4) imder such a condition of fact it is the duty 
 of this House to ratify their act and make it legal and valid to the end desired; (5) 
 not only is this duty plain, but the honor and good faith of our Government is 
 involved in this recognition. And it is further shown to be advisable on the mere 
 ground of expediency. 
 
 On March 28, 1882,' Mr. William H. Calkins, of Indiana, as a question of privi- 
 lege, proposed to call up the report of the Committee on Elections in the case of the 
 claim of M. D. Ball to a seat in this House as a Delegate from the Territory of 
 Alaska. 
 
 Mr. J. Proctor Knott, of Kentucky, made the point of order that the said report 
 and subject was not a question of privilege, there being no law authorizing Alaska 
 to send a Delegate to Congress or authorizing an election for that purpose to be 
 held in said Territory. 
 
 After debate on the point of order, the Speaker ^ sustained the same, on the 
 groimd that said report, with an accompanying resolution, providmg that M. D. 
 Ball be not admitted to a seat in the Forty-seventh Congress as a Delegate from the 
 Territory of Alaska imtil the Committee on the Territories shall report thereon, 
 was referred to the Committee on the Territories, which committee had not reported 
 thereon. 
 
 At the second session of this Congress an attempt was made, on February 19, 
 1883,' to set a time for considering this report and also the bill and reports of the 
 Committee on Territories, but it failed. The matter ended thus. 
 
 412. The election case of Owen G. Chase, claiming a seat as Delegate 
 from the Territory of Cimmaron, in the Fiftieth Congress. 
 
 The House declined to admit a Delegate from a Territory not organ- 
 ized by law. 
 
 On December 12, 1887,^ ^Mr. WilUam M. Springer, of Illinois, presented the 
 petition of Owen G. Chase, claiming to be elected a Delegate from the Territory of 
 Cimmaron, and also a resolution referring the petition and certificate of election to 
 the Committee on Territories and allowing Mr. Chase the privileges of the floor 
 pending the consideration of the organization of a Territorial government. 
 
 Mr. Springer urged, in behalf of his resolution, the precedent of California. 
 On the other hand, it was urged that the more recent action of the House in the 
 case of the proposed Delegate from Alaska was the better precedent. 
 
 On motion of Mr. S. S. Cox, of New York, the resolution and petition were 
 laid on the table, ayes 157, noes 53. 
 
 ' First session Forty-seventh Congress, Journal, pp. 923, 924; Record, pp. 2343-2345. 
 
 ^ J. Warren Keifer, of Ohio, Speaker. 
 
 'Second session Forty-seventh Congress, Journal, p. 444; Record, p. 2954. 
 
 < First session Fiftieth Congress, Journal, p. 42; Record, pp. 38-40.
 
 Chapter XIII* 
 THE QUALIFICATIONS OF THE MEMBER. 
 
 1. Provision of the Constitution. Section 413.' 
 
 2. State may not prescribe. Sections 415-417.- 
 
 3. Age. Section 418. 
 
 4. Citizenship in the United States. Sections 419-427. 
 
 5. Principles deduced from Senate decisions as to citizenship. Sections 428-430. 
 
 6. Citizenship of Delegates. Section 431. 
 
 7. Inhabitancy. Sections 432-436.' 
 
 8. Principles deduced from Senate decisions as to inhabitancy. Sections 437-440. 
 
 413. The Constitution provides that a Member shall fulfill certain 
 conditions as to age, citizenship, and inhabitancy. — Section J of Article I of 
 the Constitution provides; 
 
 No person shall be a Representative who shall not have attained to the age of twenty-five years, and 
 been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that 
 State in which he shall be chosen. 
 
 414. The election case of William McCreery, of Maryland, in the 
 Tenth Congress. 
 
 A question arising in 1807 as to the right of a State to prescribe 
 qualifications for Representatives, the House, while inclining manifestly 
 to the view that the States did not have the right, avoided an explicit 
 declaration. 
 
 Discussion of the three constitutional qualifications as exclusive of 
 others. 
 
 On October 30, 1807,^ Joshua Barney presented a memorial contesting the elec- 
 tion of William McCreery, of Maryland. On November 9 the Committee of Elections 
 made a report showing the following facts : 
 
 The law of Maryland (act of 1790) required the Member to be an inhabitant of 
 his district at the time of his election, and to have resided therein twelve calendar 
 months immediately before. 
 
 * See Volume VI, Chapter CLVI. 
 
 ' Many decisions that disqualification of the majority candidate does not give title to the minority 
 candidate. (See sees. 323, 326, 424, 43-5, 4-50, 4.)9, 460, 467, 469, 473, 621, 807.) Also an elaborate Senate 
 discu-ssion. (Sec. 463 of this volume.) 
 
 ^ Senate case of Lucas r. Faulkner. (Sec. 632 of this volume.) 
 
 ^ See also cases of Upton (sec. 366 of this volume) and Pigott (sec. 369 of this volume). 
 
 * Firstsession Tenth Congress, Contested Elections in Congress, 1789 to 1834, p. 167. Reports, Xo. 1; 
 Annals, p. 870; Journal, p. 44. Mr. McCreerj- had already taken the oath without question; Journal, p. 6. 
 
 381
 
 382 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 414 
 
 The law of Maryland (act of 1802) provided that Baltimore town and county 
 should be a district entitled to send two Representatives in Congress, one to be a 
 resident of Baltimore City and the other a resident of Baltimore County. 
 
 At the election the poll resulted, 6,164 votes for Nicholas P. Moore, indisputably 
 a resident of Baltimore County; 3,559 votes for William McCreery, whose claim to 
 the required residence in Baltimore City is questioned; 2,063 votes for Joshua Bar- 
 ney, indisputably a resident in Baltimore City, and who contests the seat of Mr. 
 McCreery; 353 votes for John Seat, a resident of Baltimore City. 
 
 The committee reported the conclusion that the law of Maryland prescribing 
 the quahfications of Members was unconstitutional, and therefore reported a resolu- 
 tion that William McCreery, who imquestionably had a majority of votes for the 
 Baltimore City seat, was entitled to the seat. The committee did not attempt to 
 ascertain whether or not Mr. McCreery had the residence requirements of the law of 
 Maryland. 
 
 This report was the subject of exhaustive debate in the House, lasting horn 
 November 12 to 19.' 
 
 It was urged, in behalf of the report, that the qualifications of the National 
 Legislature were of a national character and should be uniform throughout the 
 nation and be prescribed exclusively by the national authority. The people had 
 delegated no authority either to the States or to Congress to add to or diminish the 
 qualifications prescribed by the Constitution. In denying the right of the States to 
 add qualifications, the Congress was only protecting the rights of their citizens 
 against encroachments on their liberties by their own State legislatures, wliich were 
 corporate bodies not acting by natural right, but restrained by both Federal and 
 State constitutions. The reserved power of the States could operate only when, 
 from the nature of the case, there could be no conflict with national power. 
 Congress had the power under the Constitution to collect taxes. From the nature 
 of the case the same power was reserved to the States. Congress had power to 
 "establish post-offices and post-roads." From the nature of the case the States 
 would not reserve this power. In the same way the States could not reserve a 
 power to add to the qualifications of Representatives. If they could do tlus, any 
 sort of dangerous qualification might be established — of property, color, creed, or 
 political professions. The Constitution prescribed the qualifications of President, as 
 it did of Representatives. Did anyone suppose that a State could add to the 
 qualifications of the President? In the case of Spaulding i\ Mead, the House had 
 decided that a State law could not render void returns made after a certain time. 
 Qualifications for Representatives should be firm, steady, and unalterable. The 
 National Legislature must have the power to preserve from encroachment the 
 national sovereignty. A part of the Union could not have power to fix the quali- 
 fications for the Members of the Assembly of the Union. It is presumed that 
 written documents say all they mean. Had the makers of the Constitution 
 meant that there might be other qualifications, they would have said so. The 
 people had a natural right to make choice of their Representatives, and that right 
 should be limited only by a convention of the people, not by a legislature. The 
 
 'Annals, pp. 870-950.
 
 § 414 THE QUALIFICATIONS OF THE MEMBER. 383 
 
 powers of the House were derived from the people, not from the States. The 
 power to prescribe qualifications had been given neither to Congress nor the States. 
 The States might establish districts, but they might not prescribe that Represent- 
 atives should be confined to the districts. The Constitution had carefully pre- 
 scribed in what ways the States might interfere in the elections of Congressmen. 
 They might prescribe the "times, places, and manner" of holding elections, reserv- 
 ing to Congress the right to "make or alter" such regulations. Tliis was all the 
 Constitution gave to the States. It had been urged that the language of the clause 
 prescribing the qualifications was negative, but so also was the language of the 
 clause prescribing the qualifications of the President. The qualifications of 
 Representatives did not come within the range of powers granted, but rather were 
 the means of exercising those powers. The powers reserved to the States were 
 reserved to them as sovereignties, but the cjualifications of the Members of the 
 House of Representatives of the nation never belonged to those sovereignties, 
 but flowed from the people of the United States. 
 
 It was urged against the report that the positive qualifications assumed by the 
 Constitution did not contain a negative prohibition of the right of the States to 
 impose other qualifications. The State by annexing the provision for a residence in 
 a district did not interfere with the constitutional requirement of residence in the 
 State. Whatever rights were not expressly delegated to the United States were 
 reserved to the States themselves or to the people. A right could not be delegated 
 absolutely wliich could be exercised conjointly. For the House to declare a long- 
 existing State law unconstitutional would be a dangerous act. In prescribing the 
 qualifications of the voters the Constitution was positive, but in prescribing the 
 qualifications of the Representatives in Congress the language was significantly 
 negative. The Constitution did not fix the qualifications; it simply enumerated 
 some disqualifications within which the States were left to act. The power contended 
 for by Maryland must be included in the common and usual powers of legislation, 
 and not being delegated to the General Government must reside in the States. 
 Because the House was constituted the judge of the qualifications of its Members, 
 it did not follow that it could constitute or enact qualifications. The functions were 
 distinct. No harm could come from the exercise by the States of the power to 
 prescribe cjualifications, since the power would be used with discretion. 
 
 In the course of the debate a resolution that "William McCreery is duly elected 
 according to the laws of Maryland and is entitled to his seat in this House" was 
 negatived by a large vote. 
 
 Then a resolution was offered declaring that neither Congress nor the State 
 legislatures could add to or take away from the qualifications prescribed by the 
 Constitution, that the law of Maryland was void, and that William McCreery was 
 entitled to his seat. This resolution did not come to a vote, as the committee rose 
 after it was offered, and on the next day, November 19, the House discharged the 
 Committee of the Whole from the subject and recommitted it to the Committee on 
 Elections.' 
 
 On December 7 ^ the committee reported, presenting evidence at length on the 
 
 ' Journal, p. 36. 
 2 Annals, p. 1059. 
 
 1
 
 384 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 415 
 
 subject of Mr. McCreery's residence, but expressing no opinion on that subject, and 
 recommending the adoption of the following resolution: 
 
 Resolved, That William McCreery, having the greatest number of votes, and being duly qualified 
 agreeably to the Constitution of the United States, is entitled to his seat in this House. 
 
 On December 23 this resolution was debated in Committee of the Whole, where 
 a disinclination to come to a decision on the rights of the States was manifest. This 
 finally took form in the adoption of the following amendment, offered by Mr. Robert 
 Marion, of South Carolina : 
 
 Strike out all the portion relating to votes and qualifications, so that the resolution reads as follows: 
 Resolved, That William McCreery is entitled to his seat in this House. 
 
 The Committee of the Whole agreed to this amendment, which, being reported 
 to the House, was agreed to by a vote of yeas 70, nays 37. Both Mr. William Findley, 
 of Pennsylvania, who had supported the original report, and Mr. John Randolph, 
 of Virginia, who had made the main argument in opposition, voted against the 
 amendment.' 
 
 The amendment of the Committee of the Whole having been agreed to, Mr. 
 John Randolph, of Virginia, moved a further amendment by inserting after the 
 word McCreery the following: 
 
 By having the qualifications prescribed by the laws of Maryland. 
 
 Mr. Randolph explained that he wished to bring the constitutionality of the 
 law of Maryland before the House. On December 24 the question was taken on 
 Mr. Randolph's amendment, and it was decided in the negative — yeas 8, navs 92. 
 
 The question then being taken on the adoption of the resolution: 
 
 Resolved, That WUliam McCreery is entitled to his seat in this House. 
 
 And it was agreed to — yeas 89, nays 18. 
 
 Mr. Randolph was one of those voting nay.' 
 
 415. The Illinois cases of Turney v. Marshall and Fouke v. Trum- 
 bull in the Thirty-fourth Congress. 
 
 In 1856 the House decided that a State might not add to the quali- 
 fications prescribed by the Constitution for a Member. 
 
 The governor of a State having declined to issue credentials to rival 
 claimants, the House seated the one shown prima facie by official state- 
 ment to have a majority of votes. (Footnote.) 
 
 An instance wherein a contest was maintained against a Member- 
 elect who had not and did not take the seat. 
 
 Discussion of the three constitutional qualifications as exclusive of 
 others. 
 
 In 1856 the House considered and decided a question as to the quali- 
 fications of a Member who had already been seated on his prima facie 
 showing. 
 
 ' Journal, p. 91; Annals, p. 1231. 
 
 - Journal, pp. 93-95; Annals, p. 1238.
 
 § 415 THE QUALIFICATIONS OF THE MEMBER. 385 
 
 On June 24, 1856/ Mr. John A. Bingham, of Ohio, from the Committee on Elec- 
 tions, reported in the two Ilhnois contested election cases of Turney t'. Marshall 
 and Fouke v. Trumbull. Each of these cases arose out of the following clause in 
 the constitution of Illinois: 
 
 The judges of the supreme and circuit courts shall not be eligible to any other office or public trust 
 of profit in this State, or the United States, during the term for which they are elected, nor for one year 
 thereafter. All votes for either of them, for any elective office (except that of judge of the supreme or 
 circuit court), given by the general assembly or the people, shall be void. 
 
 Both Messrs. Marshall and Trumbull were indisputably under tliis disqualifica- 
 tion, and the contestants claimed the seats on the ground that the votes cast for 
 them "were null and void." 
 
 Thus was presented the question whether a State might superadd to the quali- 
 fications prescribed by the Constitution of the United States for a Representative in 
 Congress. 
 
 After quoting Chancellor Kent's saying "the objections to the existence of any 
 such power appear to me too palpable and weighty to admit of any discussion," 
 the report proceeds: 
 
 And Mr. Justice Story, upon the same question, says that "the States can exercise no powers 
 whatsoever, which exclusively spring out of the existence of the National Government, which the 
 Constitution does not delegate to them. They have just as much right, and no more, to prescribe 
 new qualifications for a Representative as they have for a President. Each is an officer of the Union, 
 deriving his powers and qualifications from the Constitution, and neither created by, dependent upon, 
 nor controllable by the States. It is no original prerogative of State power to appoint a Represen- 
 tative, or Senator, or President for the Union. (Story's Commentaries, vol. ii, page 101.) 
 
 The second section of the first article of the Constitution of the United States provides that the 
 people of the several States shall choose their Representatives in Congress every second year, and 
 prescribes the qualifications both of the electors and the Representatives. 
 
 The qualification of electors is as follows: 
 
 "The electors in each State" (who shall choose Representatives in Congress) "shall have the 
 qualifications requisite for electors of the most numerous branch of the State legislature." 
 
 The qualifications of a Representative, under the Constitution, are that he shall have attained 
 the age of 25 years, shall have been seven years a citizen of the United States, and, when elected, an 
 inhabitant of the State in which he shall be chosen. It is a fair presumption that, when the Constitution 
 prescribes these qualifications as necessary to a Representative in Congress, it was meant to exclude 
 all others. And to your committee it is equally clear that a State of the Union has not the power to 
 superadd qualifications to those prescribed by the Constitution for Representatives, to take away from 
 "the people of the several States" the right given them by the Constitution to choose, "every second 
 year," as their Representative in Congress, any person who has the required age, citizenship, and 
 residence. To admit such a power in any State is to admit the power of the States, by a legislative 
 enactment, or a constitutional provision, to prevent altogether the choice of a Representative by the 
 people. The assertion of such a power by a State is inconsistent with the supremacy of the Consti- 
 tution of the United States, and makes void the provision that that Constitution "shall be the supreme 
 law of the land," anj'thing in the constitution or laws of any State to the contrary notwithstanding. 
 
 Your committee submit that the position assumed by those who claim for the States this power, 
 that its exercise in nowise conflicts with the Constitution, or the right of the people under it to choose 
 any person having the qualifications therein prescribed, has no foundation in fact. 
 
 ' First session Thirty-fourth Congress, I Bartlett, p. 166; RoweU'e Digest, p. 141; House Report 
 Xo. 194. 
 
 5994— VOL 1—07 25
 
 386 PRECEDENTS OF THE HOUSE OF KEPRESENTATIVES. § 415 
 
 By the Constitution the people have a right to choose as Representative any person having only 
 the qualifications therein mentioned, without superadding thereto any additional qualifications what- 
 ever. A power to add new qualifications is certainly equivalent to a power to vary or change them. 
 An additional qualification imposed by State authority would necessarily disqualify any person who 
 had only the qualifications prescribed by the Federal Constitution. 
 
 Your committee can not assent to the averment of the memorialist, Mr. Fouke, that "the question 
 presented is not one of qualification of a Member of Congress arising under the Constitution of the 
 United States, but a question of election arising under the constitution and laws of the State of Illinois." 
 
 It is not intimated either by the memorialist, or any one else, that the persons who voted at said 
 election in said several districts were not qualified electors and legally entitled to vote, nor is it inti- 
 mated that said election was not conducted in all respects as required liy law. In short, the only 
 point made by the memorialist is that Mr. Marshall, who received a large majority of all the votes cast 
 in said Ninth district, and Mr. Trumbull, who received a large majority of all the votes cast in the said 
 Eighth district, were each of them ineligible to a seat in Congress, not because either of them lacked 
 any qualification prescribed by the Constitution of the United States, but because each of them was 
 disqualified by operation of the provisions of the constitution of the State of Illinois. If the respective 
 terms for which those two gentlemen had been elected judges of the said State had expired more than 
 one year before the 7th of November, 1854, we would have had no intimation that the votes cast for 
 each of them were in contemplation of law no votes; their election would, under these circimistances, 
 have been conceded, because they would have been acknowledged as not disqualified to hold the 
 office under and by virtue of the constitution of the State of Illinois. If the State of Illinois may thus 
 disqualify any class of persons possessing all the qualifications required by the Federal Constitution for 
 a Representative in Congress for a period of ten years, and another class for a period of five years, what 
 is there to restrain that State from imposing like disabilities upon all citizens of the United States residing 
 within her territory, and thus take away from the people the right to choose Representatives in Con- 
 gress every second year, declaring, in effect, that only every fifth or tenth year shall the people choose 
 their Representatives? It is no answer to say that these disabilities are self-imposed by the majority 
 of the people of the State. The majority of the people within the several States have not the power 
 to impair the rights of the minority guaranteed by the Constitution of the United States and exer- 
 cised under its authority. 
 
 By the plain letter of the Constitution Congress may prescribe the time, place, and manner of 
 holding elections for Representatives, and at such time and place, and in the manner thus prescribed — 
 every second year — the people of each State may choose as Representative in Congress any person 
 having the qualifications enumerated in that Constitution. The power attempted to be asserted by 
 the State of Illinois in the cases before us is in direct contravention of the letter, as also of the spirit, 
 true intent, and meaning of these provisions of the Federal Constitution, and absolutely subversive 
 of the rights of the people under that Constitution. Your committee, therefore, conclude that the 
 said tenth section of the fifth article of the constitution of the State of Illinois is inoperative in the 
 premises; that the said Trumbull and Marshall were each eligible to the office of Representative in 
 Congress at the time of said election, it being conceded that on that day they possessed all the qual- 
 ifications for that office required under the Constitution of the United States; and that the votes given 
 to each of them were not void, as alleged, because they were given by electors having the qualifications 
 prescribed by the Constitution of the United States, and at the time and place and in the manner 
 prescribed by law. 
 
 On April 7 and April 10* the report was debated in the House. Mr. Trumbull 
 had never taken his seat in the House, having been elected to the Senate. So in 
 the contest in his case, the committee tested the question before the House with 
 the following resolution: 
 
 Resolved, That the Hon. P. B. Fouke, who has presented to this House his memorial claiming to 
 represent the Eighth district of Illinois in the Thirty-fourth Congress, was not duly elected as claimed 
 by him, and is not entitled to a seat in this House, and that said seat is vacant. 
 
 This resolution was agreed to — yeas 135, nays 5. 
 
 ■Journal, pp. 805-808; Globe, pp. 829, 864.
 
 § 416 THE QUALIFICATIONS OF THE MEMBER. 387 
 
 Then a resolution declaring that Mr. Tumey was not elected and that Samuel S. 
 Marshall/ the sitting Member, was entitled to the seat, was agreed to without 
 division. 
 
 416. In 1856 the Senate decided that a State might not add to the 
 qualifications prescribed by the Constitution for a Senator. 
 
 In the Senate in 1856 a Senator-elect was sworn on his prima facie 
 right, although his qualifications were questioned. 
 
 In 1856 the Senate considered and decided a question as to the quali- 
 fications of a Member who had already been seated on his prima facie 
 showing. 
 
 On Februar}- 27, 1856,^ the Senate Judiciary Committee reported on the right 
 of Mr. Lyman Trumbull, of Illinois, to a seat in the Senate. A provision of the 
 constitution of Illinois provided that certain judges of that State should not be 
 eligible to any other office of the State or United States during the term for which 
 they were elected nor for one year thereafter. Mr. Trumbull had been a judge and 
 came within the prohibitions of the constitution. Hence a question arose as to 
 the effect of qualifications imposed by a State in addition to the qualifications 
 imposed by the Constitution. 
 
 On December 3, 1855,^ when Mr. Trumbull appeared to take the oath, a protest 
 reciting the facts was filed, but no objection was offered to his taking the oath, 
 which he accordingly did. 
 
 On February 20 and 27,^ and March 3 and 5,^ 1856, the question was debated 
 at length, and on the latter day, by a vote of yeas 35, nays 8, Mr. Trumbiill was 
 declared entitled to the seat. 
 
 417. The Kansas election case of Wood v. Peters in the Forty-eighth 
 Congress. 
 
 In 1884 the House reaffirmed its position that a State may not add to 
 the qualifications prescribed by the Constitution for a Member. 
 
 Discussion as to whether or not a Member is an officer of the Govern- 
 ment. 
 
 On March 18, 1884," Mr. Mortimer F. Elliott, of Pennsylvania, from the Com- 
 mittee on Elections, presented the report of the majority of the committee in the 
 Kansas case of Wood v. Peters. 
 
 The sitting Member had received, on the general ticket, 99,866 votes, and 
 contestant 83,364. The contestant claimed the seat on the sole ground that Mr. 
 Peters was ineligible at the time he was voted for. 
 
 ' The Journal and Globe show that Mr. Marshall's name was on the roll when the House first met, 
 and that on February 4, after the Speaker was finally chosen, he was sworn in without objection. (Joiu-- 
 I nal, pp. 7, 448; Globe, pp. 2, 353.) But from the debate (Mr. Orr's speech, Globe, p. 831) it appears 
 
 that the governor of Illinois had declined to issue credentials to any of the four, but sent them all with a 
 statement of facts. Mr. Marshall was seated on his prima facie showing of a majority of votes. For a 
 copy of governor's statement, which was really a duly authenticated certificate, see Globe, page 865. 
 ^ First session Thirty-fourth Congress, 1 Bartlett, p. 618. 
 I 'Globe, p. 1. 
 
 I * Globe, pp. 466, 514. 
 
 ' Globe, pp. 547-552, 579-584. 
 
 'First session Forty-eighth Congress, House Report No. 794; Mobley, p. 79.
 
 388 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 417 
 
 The constitution of Kansas provided that judges of the supreme and district 
 courts of the State should not ' ' hold any office of profit or trust under the authority 
 of the State or the United States during the term of office for which said justices 
 or judges shall be elected." 
 
 It was conceded that Mr. Peters came within this prohibition, and the 
 majority say: 
 
 It is clear that Peters falls within the inhibition of the constitution of Kansas, and if a State 
 possesses the power to add to the qualifications prescribed by the Constitution of the United States for 
 Representatives in Congress, then he was ineligible at the time he was voted for, and is not entitled 
 to a seat in this House. 
 
 Article I, section 2, of the Constitution of the United States provides that — 
 
 "No person shall be a Representative who shall not have attained the age of 25 years and been 
 seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of the 
 State in which he shall be chosen." 
 
 The Constitution, by prescribing certain qualifications enumerated in the section just quoted, 
 according to a well-settled rule of construction, excludes all others. 
 
 The States have no power to superadd other qualifications, for the reason that such power can 
 not, in the nature of things, be found among the reserved rights of the States, and no such power 
 is delegated to them by the Federal Constitution. 
 
 Congress is the creature of the Constitution of the United States, and the right of the people of 
 the several States to representation therein is derived wholly from that instrument, and the States could 
 not have reserved the right to prescribe qualifications of Members of Congress, when the right to elect 
 them at all grew out of the formation of the National Government. 
 
 The question involved in this contest is not a new one. It has been too well settled to require 
 further elaboration, and the committee will content themselves with a reference to a few of the author- 
 ities on the subject: 
 
 "Now, it may properly be asked, where did the State get the power to appoint Representatives 
 in the National Government? Was it a power that existed at all before the Constitution was adopted? 
 If derived from the Constitution, must it not be derived exactly under the qualifications established 
 by the Constitution, and none others? If the Constitution has delegated no power to the States to add 
 new qualifications, how can they claim any such power by the mere adoption of that instrument, which 
 they did not before possess? 
 
 "The truth is that the States can exercise no powers whatsoever, which exclusively spring out of 
 the existence of the National Government, which the Constitution does not delegate to them. They 
 have just as much right, and no more, to prescribe new qualifications for a Representative as they have 
 for a President. Each is an officer of the Union, deriving his powers and qualifications from the Con- 
 stitution, and neither created by, dependent upon, nor controllable by the States. It is no original 
 prerogative of State power to appoint a Representative, a Senator, or President for the Union. (Story 
 on the Constitution, vol. 1, sees. 626 and 627.) 
 
 " The question whether the individual States can superadd to or vary the qualifications prescribed 
 to the Representative by the Constitution of the United States is examined in Mr. Justice Story's 
 Commentaries on the Constitution, volume 1, pages 99 to 103, but the objections to the existence 
 of any such power appears to me to be too palpable and weighty to admit of any discussion. (1 Kent's 
 Commentaries, p. 228, note F.)" 
 
 To same effect, Paschal's Annotated Constitution, page 305. 
 
 The precise question presented in this case was determined by this House in the cases of Tumey 
 V. Marshall, and Fouke v. Trumbull, of Illinois. (Bartlett's Contested Election Cases from 1834 to 
 1865, p. 167.) 
 
 The tenth section of the fifth article of the constitution of the State of Illinois, which was adopted 
 on the 6th day of March, 1848, is in the words following: 
 
 "The judges of the supreme and circuit courts shall not be eligible to any other office or public 
 trust of profit in this State or the United States during the term for which they were elected, nor for 
 one year thereafter. All votes for either of them for any elective office (except that of judge of the 
 supreme or circuit courts), given by the general assembly or the people, shall be void."
 
 § 418 THE QUALIFICATIONS OF THE MEMBER. 389 
 
 Marshall and Trumbull had been judges of Illinois, and at the time they were elected Members 
 of Congress were clearly within the prohibitory provisions of the constitution of that State. 
 
 The Committee on Elections, in their report to the House on these cases, state the questions to 
 be determined as follows: 
 
 'This presents the question whether a State may superadd to the qualifications prescribed to 
 the Representative in Congress by the Constitution of the United States." 
 
 The committee reached the conclusion that a State could not add to the qualifications prescribed 
 by the Constitution of the United States, and reported that Trumbull and JIarshall were entitled to 
 their seats. The report of the committee was sustained by the House by a decisive vote. 
 
 Trumbull's case, determined by the United States Senate in 1856, is also directly in point. 
 (Election Cases from 1834 to 1865, p. 618.) 
 
 The authorities cited place the question involved in this case beyond the realm of doubt. It is 
 very clear that S. R. Peters was duly elected a Member of the Forty-eighth Congress from the State 
 of Kansas at large, and that he possessed all the qualifications requisite to entitle him to take his seat. 
 
 The committee, therefore, submit the following resolution and recommend its adoption; 
 
 Resolved, That S. R. Peters was duly elected a Member of Congress from the State of Kansas, and 
 is entitled to his seat. 
 
 Mr. R. T. Bennett, of North Carolina, filed minority views ia which he argued 
 at length, with an abimdant citation of precedents, and an elaborate review of the 
 Constitution, that the State had the right to prescribe the additional qualification. 
 He also argued that Senators and Representatives were not "ofBcers" of the 
 General Government. 
 
 Assuming that Mr. Peters was disqualified, he next argued elaborately, with 
 a review of precedents, that the minority candidate was entitled to be seated. 
 ThLs argument was replied to by Mr. Elliott in the course of the debate.' 
 
 The minority proposed resolutions declaring Mr. Peters ineligible, and seating 
 Mr. Wood. 
 
 The report was debated April 23,- and on that day the minority proposition 
 declaring ^Ir. Peters ineligible was disagreed to; ayes 20; noes 106. The next 
 proposition declaring Mr. Wood entitled to the seat was disagreed to. 
 
 Then the majority resolution confirming the title of Mr. Peters was agreed to 
 without division. 
 
 418. A Member-elect whose credentials were in due form, but whose 
 age was not sufficient to meet the constitutional requirement, was not 
 enrolled by the Clerk. 
 
 A Member-elect not being of the required age, the taking of the oath 
 was deferred until he was qualified. 
 
 On December 5, 1859,^ among the Members-elect appearing with credentials 
 was Mr. John Young Brown, of Kentucky. His name appears in the list of Members- 
 elect in the Congressional Globe of that date, but does not appear in the Joimial on 
 the roll of Members-elect called by the Clerk. 
 
 In this Congress there was a contest for Speaker lasting from December 5, 1859, 
 until February 1, 1860, when, on the forty-fourth vote, a Speaker was elected. Mr. 
 Brown does not appear among those voting in this contest, nor was he sworn in on 
 
 ' Record, p. 3298. 
 
 2 Record, pp. 3296-3303; Appendix, p. 75; Journal, pp. 1115-1117. 
 
 'First session Thirty-sixth Congress, Journal, p. 7; Globe, p. 2.
 
 390 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 419 
 
 February 1 / when the oath was administered to the Members of the House by the 
 Speaker. 
 
 At the beginning of the next session, on December 3, 1860/ Mr. Brown was 
 sworn in. 
 
 No explanation was given on any of the above dates of the delay of Mr. Brown 
 in taking the oath. 
 
 The reason for the delay appears incidentally in a debate on June 18, I860,' 
 when !Mr. John W. Stevenson, of Kentucky, explained that Mr. Brown was under 
 the constitutional age, and had not been sworn in, although the State authorities 
 of Kentucky had Issued a certificate to him.^ 
 
 419. The Constitution defines what shall constitute citizenship of 
 the United States and of the several States. — Section 1 of Article XIV of the 
 Constitution provides : 
 
 Section 1. All persons bom or naturalized in the United States, and subject to the jiu-isdiction 
 thereof, are citizens of the United States and of the State wherein they reside. No State shall make or 
 enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor 
 shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to 
 any person within its jurisdiction the equal protection of the laws.* 
 
 420. The South Carolina case of William Smith, the first election case 
 in the First Congress. 
 
 A native of South Carolina, who had been abroad during the Revolu- 
 tion and on his return had not resided in the country seven years, was 
 held to be qualified as a citizen. 
 
 The House decided a Member-elect entitled to a seat on his prima facie 
 right, although knowing that his qualifications were under examination. 
 
 In the first election case the Committee on Elections were directed to 
 take proofs, but not to present any opinion thereon. 
 
 A Member whose qualifications were questioned was permitted to be 
 present before the committee, cross-examine, and offer counter proofs. 
 
 Instance of an inquiry as to a Member-elect's qualifications instituted 
 by petition. 
 
 As to whether or not a disqualified Member who has taken the oath 
 may be excluded by a majority vote. 
 
 As to the effect of absence from the country on the question of citi- 
 zenship. 
 
 The First Congress assembled on March 4, 1789, and a quorum not being 
 present the House met and adjourned daily until April 1, when a quorum appeared 
 
 'Journal, p. 166; Globe, p. 655. 
 
 ^Second session Thirty-sixth Congress, Journal, p. 7; Globe, p. 2. 
 
 ^ First session, Thirty-sixth Congress, Globe, p. 3125. 
 
 * William C. C. Claiborne, of Tennessee, said to have been born in 1775, took his seat in the House 
 on November 23, 1797, without question, although if the date of his birth is correct he was only 22 years 
 of age. (Second session Fifth Congress, Journal, p. 84; Vol. IV, New International Encyclopaedia. ) 
 
 'This portion of the Constitution was declared ratified July 21, 1868.
 
 § 420 THE QUALIFICATIONS OF THE MEMBER. 391 
 
 and a Speaker was elected. On April 13' Mr. William Smith, of South Carolina, 
 appeared and took his seat. On April 15- a petition of David Ramsay, of the 
 State of South Carolina, was presented to the House and read, setting forth that 
 Mr. Smith was at the time of his election inehgible and came witliin the disquali- 
 fication of the third paragraph of the Constitution, which declared that no person 
 should be a Representative who should not have been seven years a citizen of the 
 United States.^ This petition was referred to the Committee on Elections with 
 instructions to report "a proper mode of investigating and deciding thereupon." 
 This Elections Committee, which had already been chosen, consisted of Messrs. 
 George Clymer, of Pennsylvania; Fisher Ames, of Massachusetts; Egbert Benson, 
 of New York; Daniel Carroll, of Maryland; Alexander White, of Virginia; Ben- 
 jamin Huntington, of Connecticut; and Nicholas Oilman, of New Hampshire. 
 
 On April IS,* in accordance with a usage then established and continued in 
 several Congresses, the Committee on Elections reported a list of the Members 
 whose credentials were "sufficient to entitle them to take seats in this House," and 
 the House agreed to the report. The name of WilUam Smith, of South Carolina, 
 was on this list. 
 
 On the same day, and very soon thereafter, the Committee on Elections reported 
 as to the case of Mr. Smith, the report, after amendment by the House, being as 
 follows : 
 
 That in this case it will be sufficient, in the first instance, that a committee take such proofs as can 
 be obtained in this city respecting the facts stated in the petition, and report the same to the House; 
 that Mr. Smith be permitted to be present from time to time when such proofs are taken to examine the 
 witnesses, and to offer counter proofs, which shall also be received by the committee and reported to 
 the House; that if the proofs, so to be reported, shall be declared by the House insufficient to verify the 
 material facts stated in the petition, or such other facts as the House shall deem proper to be inquired 
 into, it will then be necessary for the House to direct a further inquiry, especially the procuring what- 
 ever additional testimony may be supposed to be in South Carolina, as the case may require; that all 
 questions arising on the proofs be decided by this House, without any previous opinion thereon reported 
 by a committee. 
 
 The report having been considered on April 29, and amended by the House to 
 read as above shown ,^ it was — 
 
 Resolved, That this House doth agree to the said report, and that it be an instruction to the Com- 
 mittee of Elections to proceed accordingly. 
 
 On May 16° a yea-and-nay vote occurred in the House and Mr. Smith is 
 recorded as voting, showing conclusively that he had taken the oath while the 
 question as to his qualifications was pending. 
 
 ' First session First Congress, Journal, p. 12. It is a fair presumption that Mr. Smith took the oath 
 when he took his seat, as on April 6 the House had agreed on a form of oath which was on April 8 admin- 
 istered to those present. Other Members came in and took seats after that, and undoubtedly took the 
 oath. The record of Mr. Smith's appearance is the same as that of others. 
 
 -Journal, p. 14. 
 
 " See section 413 of this chapter. 
 
 * Journal, pp. 16, 17, 23. 
 
 'Journal, p. 23; Annals, p. 232; American State Papers (miscellaneous), p. 1. The amendments 
 made by the House are not specified. 
 
 " Journal, p. 37.
 
 392 PRECEDENTS OF THE HOUSE OP REPRESENTATIVES. § "120 
 
 On May 12 ' the committee submitted their report, which was taken up for 
 consideration on May 21. The report^ stated: 
 
 That Mr. Smith appeared before them, and admitted that he had subscribed, and had caused to be 
 printed in the State Gazette of South Carolina, of the 24th of November last, the publication which 
 accompanies this report, and to which the petitioner doth refer as proof of the facts stated in his petition; 
 that Mr. Smith also admitted that his father departed this life in the year 1770, about five months afte-- 
 he sent him to Great Britain; that his mother departed this life about the year 1760, and that he was 
 admitted to the bar of the supreme court in South Carolina in the month of January, 1784. 
 
 The committee also submitted certain counter proofs, mostly copies of acts of 
 South Carolina. 
 
 On May 21 and 22^ the House considered the report, and in the debate the 
 following facts were stated and admitted: 
 
 That Mr. Smith was born in South Carolina, of parents whose ancestors were the first settlers of the 
 colony, and was sent to England for his education when about 12 years of age. In 1774 he was sent to 
 Geneva to pursue his studies, where he resided until 1778. In the beginning of that year he went to 
 Paris, and resided two months as an American gentleman; was received in that character by Doctor 
 Franklin, Mr. Adams, and Mr. Arthur Lee, the American commissioners to the Court of France. In 
 January, 1779, he left Paris for London, to procure from the guardian appointed by his father the means of 
 his return to America. He was disappointed, however, of the expected aid, and was obliged to remain 
 in England till he could get remittances from Charleston. In the interval the State of South Carolina 
 fell into the hands of the enemy, and this rendered it impossible at that time to return. He remained 
 in England, and embraced the opportunity to acquire a knowledge of the English law, but could not 
 be admitted to the practice of it because he had not taken the oath of allegiance to Great Britain, 
 which is a necessary qualification. Having obtained the necessary funds, he left London in October 
 or November, 1782, with a view of returning to America, but avoided taking passage for Charleston, 
 because it was then in possession of the British, but traveled over to Ostend, and there embarked in a 
 neutral vessel for St. Kitts, with the intention of receiving the first opportunity of reaching the American 
 camp. In January he sailed from Ostend, but was shipwrecked on the coast of England and obliged 
 to return to London in order to procure another passage, and was thus prevented from reaching the 
 United States till 1783. That on his arrival in Charleston he was received by his countr>TQen as a 
 citizen of the State of South Carolina, and elected by their free suffrages a member of the legislature, and 
 was subsequently elected to several honorable posts, and finally, in 1788, to the seat in Congress, which 
 is the subject of this contest. 
 
 The constitution of South Carolina was silent as to citizenship; but certain 
 laws had from time to time been passed, both with regard to those absent from the 
 country for purposes of education and with regard to aliens. The constitution also 
 prescribed certain qualifications of residence for those holding certain offices. 
 
 It was shown that in Mr. Smith's public career in his owti State it had uni- 
 formly been assumed that he was a citizen of the State during the time he resided 
 abroad; and no questions were raised, although he was disqualified for some of those 
 positions under the law, if it was to be assumed that he was not a citizn while abroad. 
 
 After debate, the House, on May 22, 1789,^ agreed to the following resolution 
 by a vote of 36 yeas to 1 nay: 
 
 Resolved, That it appears to this House, upon mature consideration, that William Smith had been 
 Beven years a citizen of the United States at the time cf his election. 
 
 1 Journal, pp. 33, 39. 
 
 ^Journal, p. 33; American State Papers (miscellaneous), p. 8. 
 
 3 Journal, pp. 39, 40; Annals, pp. 397^08. 
 
 ■•Journal, p. 39.
 
 § -iSl THE QUALIFICATIONS OF THE MEMBER. 393 
 
 It does not appear that any question was raised in the debate as to the right 
 of the House to decide by majority vote on the title of a Member to his seat should he 
 be found disqualified. 
 
 421. The Michigan election case of Biddle v. Richard in the Eight- 
 eenth Congress. 
 
 An alien naturalized by a State court not expressly empowered by the 
 United States Statutes so to do was yet held to be qualified as a citizen. 
 
 A person who had resided in a Territory one year as a person, but not 
 as a citizen, was held to be qualified as a Delegate under the law requir- 
 ing a residence of one year. 
 
 A discussion as to whether or not a Delegate should have the same 
 qualifications as a Member. 
 
 The office of Delegate was created by ordinance of the Continental 
 Congress. 
 
 On Januarj- 13, 1824,' the Committee on Elections reported on the contested 
 election case of Biddle v. Richard, from Michigan Territorj-. Mr. Richard was 
 objected to on the ground that he was an alien, his naturalization before a Michigan 
 court being alleged to be invalid; and on the groimd, should the naturahzation be 
 held valid, he was still disqualified, as the naturalization had not taken place a year 
 previous to the election. 
 
 The committee in this case first noticed the subject of the qualifications of a 
 Delegate, and called attention to the fact that the office was not one provided for bv 
 the Constitution, but grew out of the ordinance of Congress for the government of the 
 Northwest Territors*. passed before the adoption of the Constitution. Neither 
 by the terms of that ordinance nor by the laws of the United States were qualifica- 
 tions required of a person elected Delegate. Unless a rule could be deduced from 
 the principles of the Constitution there was nothing to prevent an alien from hold- 
 ing a seat in Congress as Delegate from a Territory. But the committee expressly 
 disclaim any intention of pronouncing a decision on this point, since the case did not 
 render it absolutely necessary. 
 
 The sitting Member had been naturalized in a county court in Michigan, and 
 while the naturalization law of the United States did not in terms include such coiirt 
 among those authorized to naturalize aliens, yet the committee concluded that by 
 impUcation the intention to authorize such a court was plainly shown. 
 
 As to the <5econd objection, it was shown that the law prescribed a residence of 
 one year "next preceding the election" as a qualification needed to make a person 
 eligible to any office in said Territory. Even admitting the office of Delegate to be 
 included in this prescription, it was to be observed that it was not the citizen but the 
 person who was required to reside in the Territorj' one year. Therefore the com- 
 mittee overruled the objection tliat the naturalization had not taken place a year 
 before the election. 
 
 The committee concluded tha.t Gabriel Richard was entitled to the seat. 
 
 On February 2, 1824, the House practically concurred in tliis conclusion by 
 ordering that John Biddle have leave to withdraw his petition and documents. 
 
 ' First session Eighteenth Congress, Contested Elections in Congress, from 1789 to 18.34, p. 407.
 
 394 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 422 
 
 422. The Florida election case of David Levy in the Twenty-seventh 
 Congress. 
 
 An instance of citizenship conferred by treaty stipulations. 
 
 In determining citizenship a committee ruled that the domicile of the 
 father is considered the domicile of the son during the minority of the son 
 if he be under the control and direction of the father. 
 
 In 1841-42,* the Committee on Elections twice examined the qualifications of 
 David Levy, sitting as Delegate from Florida. 
 
 By the treaty ceding Florida to the United States, it was provided: 
 
 The inhabitants of the territories which his Catholic Maj esty cedes to the United States by this treaty 
 shall be incorporated in the Union of the United States as soon as may be consistent with the principles 
 of the Federal Constitution, and admitted to the enjoyment of all the privileges, rights, and immunities 
 of the citizens of the United States. 
 
 This treaty was signed February 22, 1819, and ratified February 22, 1821. The 
 majority of the Committee of Elections foimd that the formal transfer began at 
 St. Augustine on July 10, 1821, and was completed at Pensacola July 17, and that on 
 the latter day Governor Jackson issued his proclamation of American sovereignty, 
 in accordance with the directions of the Government at Washington. The minority 
 of the committee found that East Florida (there being two provinces) was transferred 
 July 10, and preferred that date to July 17. 
 
 David Levy was not an inhabitant of Florida on either the 10th or 17th of July 
 1821 . He had been bom on the island of St. Thomas (then a possession of Denmark) 
 on June 2, 1810, his father being a subject of the King of Denmark. David Levy 
 came to Norfolk, Va., in 1819, and attended school and worked there until 1827. 
 He did not go to Florida to reside until 1827. It is evident, therefore, that he was 
 not an inhabitant of Florida, in his own right, at the time of the transfer of the 
 Territory. 
 
 The committee, in the course of the investigation, adopted the principle "that 
 the domicil of the father is the domicil of the son during the minority of the son, if 
 the son be under the control and direction of the father." 
 
 Therefore the question turned on whether or not Moses Levy, father of David 
 Levy, was an "inhabitant" of Florida at the time of the transfer of sovereignty. 
 Moses Levy was bom in Morocco, but at the time of the birth of his son was a sub- 
 ject of the King of Denmark. In the early part of 1821 he came to Philadelphia 
 and took out his declaration to become an American citizen. He then went to 
 Florida, and the cjuestion turns principally on whether he was there at the time of 
 the transfer, although the minority contended that, not being a subject of the King 
 of Spain, the treaty did not operate on him. In their first report the committee 
 found that Moses Levy was not an inhabitant of Florida at the time of the transfer, 
 and that, had he been, the King of Spain might not have transferred his allegiance 
 to the United States, since he was a Danish subject. 
 
 ' First session Twenty-seventh Congress, House Report No. 10; Second session, Report No. 450; 1 
 Bartlett, p. 41; Rowell's Digest, p. 114.
 
 § 423 THE QUALIFICATIONS OF THE MEMBER. 395 
 
 423. The Florida election case of David Levy, continued. 
 
 A Delegate who, though an alien by birth, had lived in the United 
 States from an early age, and whose father had been a resident for twenty 
 years, was not disturbed on technical objections as to his citizenship. 
 
 The House has the same authority to determine the right of a Dele- 
 gate to his seat that it has in the case of a Member. 
 
 A committee held that the strongest reasons of public policy require a 
 Delegate to possess qualifications similar to those required of a Member. 
 
 A committee held that under the principles of the common law an 
 alien might not hold a seat as a Delegate. 
 
 A committee denied the binding effect of a decision of a Territorial 
 court on a question of fact concerning the qualifications of a Delegate. 
 
 An instance of the admission of ex parte testimony in an election 
 case. 
 
 Later additional evidence was presented, and, although objected to by the 
 minority of the committee as inadmissible because taken ex parte, was admitted. 
 This testimony shows, among other things, that Moses Lev^' was recorded as an 
 inhabitant in a registry" established by General Jackson. This proceeding appeared 
 undoubtedly to have been ultra vires; but there was other evidence as to the time 
 of the arrival of Moses Levy in Florida, and the majority of the committee finally 
 concluded that as the Delegate had lived in the LTnited States from an early age, 
 as liis father had been a resident of the United States for more than twenty years 
 and had twice taken the oaths of abjuration and allegiance, the "spirit of the 
 naturalization policy of the country" had been fidly satisfied. This idea seems to 
 have been of considerable weight in determining the committee to reverse its first 
 report, and decide that Mr. Levy was entitled to the seat. This reversal of conclu- 
 sion was barely made, four of the nine members of the committee dissenting and 
 a fifth giving only a qualified assent. 
 
 The House did not act on the report; but Mr. Levj' retained the seat ^vithout 
 confirmation of the report by the House, since he had originally been admitted to 
 the seat. 
 
 In the course of the consideration of this case the committee came to certain 
 conclusions bearing vitally on the case. 
 
 1. It was urged that the House of Representatives had no jurisdiction to try 
 or determine the ehgibility of a Territorial Delegate. The committee concluded 
 that the House had plenary authority to investigate and decide upon all questions 
 touching the right of a Delegate to hold a seat in that body. Such authority seemed 
 absolutely essential to the existence of a well-regulated legislative body, which must 
 have the power to prevent the intrusion of improper persons, or guard its own rights 
 fBom violation. And the House had so determined in many cases from 1794 to 1838. 
 
 2. That citizenship was not one of the qualifications of a Delegate in the acts 
 of Congress under which he was appointed; and that, therefore, the House of Rep- 
 resentatives could not make it a test of eligibility. The committee agreed that wliile 
 the original ordinance of 1787 for the government of the Northwest Territory was 
 silent in reference to the (lualifications of a Delegate, yet must have assumed certain 
 
 i\
 
 396 PRECEDENTS OF THE HOUSE OF REPKESENTATIVES. § 424 
 
 ones. Wliile not strictly or technically a Representative, yet, considering the dig- 
 nity and importance of the office, the strongest reasons of public policy would 
 require that he should possess quahfications similar to those required by a Repre- 
 sentative. Even if the letter and spirit of the Constitution might not give hght, 
 yet the well-settled principles of common law would prevent an alien from holding 
 a seat in the House of Representatives. Chancellor Kent had enunciated the propo- 
 sition that an alien might not hold any civil office, or take any active share in the 
 administration of the Government. The committee therefore were confident that 
 an alien might not exercise the office of a Delegate to Congress. 
 
 3. That the rights of David Levy under the treaty had been the subject of 
 recent adjudication by the liighest judicial tribunal of Florida, constituted of judges 
 appointed and commissioned by the United States Government, and that such adju- 
 dication, if not conclusive, was persuasive evidence, and that the committee ought 
 not to look behind it. The committee denied that the court in question was one of 
 concurrent jurisdiction, or that the decision in question was directly upon the point. 
 Furthermore, it was not between the same parties. 
 
 424- The Indiana election case of Lowry v. White in the Fiftieth 
 Congress. 
 
 A Member who had long been a resident of the country, but who 
 could produce neither the record of the court nor his final naturalization 
 paper, was nevertheless retained in his seat by the House. 
 
 The House, overruling its committee, admitted parol evidence to prove 
 the naturalization of a Member who could produce neither the record of 
 the court nor his certificate of naturalization. 
 
 Determination by a divided Elections Committee that the disqualifi- 
 cation of a sitting Member does not entitle the contestant, who had 
 received the next highest number of votes, to the seat.' 
 
 On January- 30, 1888,^ ilr. F. G. Barrj-, of Mississippi, from the Committee on 
 Elections, submitted the report of the majority of the committee in the Indiana 
 case of Lowry v. White. The sitting Member had been returned by a majority of 
 2,484 votes over contestant, and also a clear majority of all the votes polled at the 
 election. 
 
 The questions of importance in this case all arose out of the alleged disquali- 
 fication of the sitting Member, it being alleged that he had not been on the 4th 
 of March, 1887, a citizen of the United States for a period of seven years prior 
 thereto, as required by the Constitution. 
 
 (1) The majority state the first question: 
 
 (1) Was the contestee a naturalized citizen of the United States, and had he been for seven years 
 previous to the 4th of March, 1887, and if he was, can he prove that fact by parol? 
 
 The majority report thus answers tlus question: 
 
 The second paragi-aph of section 2, Article I, of the Constitution of-the United States says: 
 
 " No person shall be a Representative who shall not have attained the age of twenty-five years and 
 
 been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of 
 
 that State in which he shall be chosen." 
 
 1 See also Section 417 of this volume for reference to an elaborate discussion of this point. 
 ^ First session Fiftieth Congress, House Report No. 163; Mobly, p. 623.
 
 §424 
 
 THE QUALIFICATIONS OF THE MEMBEB. 397 
 
 In the eighth section of the Constitution of the United States power is conferred on Congress "to 
 establish an uniform rule of naturalization." This power Ls exclusively in Congress. (2 Wheaton,269.) 
 The existing legislation of Congress on that subject is contained in the thirtv-third chapter of the Revised 
 Statutes, 1878. 
 
 It is admitted that contestee is a native of Scotland, and that he arrived in the United States on 
 the 8th of August, 1854. Your committee believe that in claiming to be a naturalized citizen of this 
 country he fails to bring himself within the provision of said statute. His original status is presumed 
 to continue untQ the contrary be shown. (Hauenstein r. Lynhom, 100 U. S., 483.) In the opinion 
 of your committee contestee has failed to remove this presumption. 
 
 It is proven and not disputed that contestee went through the final forms of naturalization and 
 admission to citizenship at Warsaw, Kosciusko County, Ind., on Monday, November 1, 1886, in a court 
 of record, on the ground that the doctrine of relation might apply to his declaration of intention which 
 is duly entered of record on the 24th day of July, 1858, in the circuit court of Allen County, Ind. 
 
 To say the least of it, this is an unfavorable admission on the part of the contestee. It is not con- 
 tended by the learned counsel that the doctrine of relation will apply in this case. Contestee, however, 
 claims to have been admitted to citizenship in the coiu-t of common pleas of Allen Cotmty, Ind., on 
 February 28, 1865, which is the vital point of contention in this case. 
 
 It is admitted that there is no record of such proceedings, nor a trace of such a record in any court; 
 but contestee now claims that a certificate of naturalization was then is.sued to him which he can not 
 now produce, nor does he or any one know what became of it. 
 
 If contestee were natiu^ized in Februarj-, 1865, can he prove it by parol? A thorough examination 
 of the authorities convince your committee that he can not. Contestee, in his brief, holds that parol 
 evidence may be received to prove the fact of natiu^lization; that it is the oath of fidelity to the Gov- 
 ernment which makes an alien a citizen, and that fact can be proven by parol in the absence of the 
 record of the court. 
 
 There are set forth in the printed record of this case contemporaneous entries of naturalization in 
 said Allen County, which are claimed by contestee to be in duplicate of the certificate issued to natu- 
 ralized persons about the period he claims to have been natmalized, and from this it is assumed by 
 contestee he held such a certificate. 
 
 ■Whatever weigHV might be given to this alleged missing certificate, even if produced in evidence, 
 it is unnecessary to discuss, and we forbear an opinion on that. It is sufficient to say that such an 
 attempt to prove it or its contents is a species of evidence too speculative and inferential to be enter- 
 tained, especially when it is sought to establish the solemn proceedings of a court of record. No author- 
 ity in support of such a rule of evidence has been fmnished this committee, and we do not think there 
 is one in existence. 
 
 As the able counsel for the contestee tersely stated the proposition in theur brief, ' 'Can parol evidence 
 be received to prove the fact of naturalization? " We answer, it can not; certainly not in the absence of 
 any record whatever, or even a certificate of naturalization, as is admitted in this case. The authorities 
 therein cited to the effect that the contents of a lost record may be proven by parol, is a principle too 
 familiar to discuss. But we have not found a single adjudicated case in which oral evidence is admitted 
 to prove a record which never existed. 
 
 Not one witness testifies to having read the alleged certificate, and none but contestee says he ever 
 saw it, and he does not attempt to state its contents. There are only two witnesses, Isaac Jenkinson 
 and William T. Pratt, who profess to have been present at the alleged naturalization of contestee in 
 February, 1858, besides the contestee himself. Pratt says nothing of seeing such certificate, and Isaac 
 Jenkinson says: 
 
 "I have no recollection of any papers being drawn up or signed or sworn to on that occasion.' - 
 (Record, p. 190, question 41.) 
 
 In Shseffer v. Kreutzer (G Binn., 430), which is relied on by contestee. Justice Yates says: 
 
 'It [the verdict] is no evidence of the fact having been legally decided, for the j udgment may have 
 been arrested and a new trial granted. Here a foi-mer action of ejectment was brought for the same land 
 by persons to whom the present parties are privies, and the verdict given therein was offered to introduce 
 the collateral fact of pajTnent of the cost of that suit, and to account for the defendant in thi.^ action 
 coming into possession, and of the plaintiff's acquiescence in the adverse title."
 
 398 PKECEDENTS OF THE HOUSE OF KEPRESENTATIVES. § 424 
 
 Conteatee also relies on Campbell v. Gordon. (6 Cranch, 176.) This was a bill to rescind contract 
 for sale of land. There was a memorandum on the minutes of the court as follows: 
 
 "At a district court held at Suffolk, William Currie, native of Scotland, migrated into the Common- 
 wealth, took the oath, etc." 
 
 There was also a certificate of naturalization of appellee's father. Judge Spears, in discussing that 
 case, said not only the certificate of the clerk but the minutes of the court were produced; besides, the 
 certificate had appended to it these words: "A copy: test, Jno. C. Littlepage," who it appeared in 
 evidence was clerk. (See Green's Son, Federal Reporter, July, 1887, vol. 31, p. 110.) 
 
 In Dryden v. Swinburne the court discusses the case of Campbell r. Gordon at length, and says: 
 
 "When the court say, 'The oath when taken confers upon him the right of citizenship' it is obvious 
 that they meant when the record showed the oath was taken it would suffice, and it would be presumed 
 that it was not administered, or at least an entry was not made of it, till all the other requisites of the 
 statutes were complied with. It would be an utter distortion of this language and decision to hold that 
 the taking of the oath by parol testimony, when the record was produced, and it failed to show any natu- 
 ralization or attempt at naturalization." (Dryden v. Swinburne, 20 W. Va., 125. See also 18 Ga., 239.) 
 
 Any other construction would be in direct violation of the Revised Statutes of the United States 
 upon the subject of naturalization. Section 2165 says: 
 
 ' ' An alien may be admitted to become a citizen of the United States in the following manner, and 
 not otherwise:" 
 
 It subsequently says, ' ' which proceedings shall be recorded by the clerk of the court." It distinctly 
 provides that the naturalization proceedings must be in a court of record. Hence Justice Marshall 
 says; 
 
 "Thev ]the courts of record] are to receive testimony, to compare it with the law, and to judge of 
 both law and fact. The judgment is entered on record as the judgment of the coiu-t. It seems to us, 
 if it be in legal form, to close all inquiry; and like everj' other judgment, to be the complete evidence 
 of its own validity." 
 
 In this extract that great jurist was discussing the proceedings in naturalization. 
 Contestee relies also on Stark v. Insurance Company (7 Cranch, 420). This was an action of covenant 
 upon a policy of insurance. The goods insured were warranted to be American property. The record 
 entries are complete, with a formal judgment of admission to citizenship, but fail to show that Stark, the 
 naturalized alien, had filed a previous declaration of intention. It was held that the judgment was 
 conclusive as to antecedent matters in the cause. 
 
 Contestee also cites 91 United States Reports, page 245 (Insurance Co. v. Tesdale). Suit was brought 
 by plaintiff, who was administratrix of her deceased husband, in her individual character, against 
 defendant, upon a policy of insurance on the life of her husband. The sole question was, could letters 
 of administration be admitted to prove the death of a third person where the right of action depends 
 upon the death of such person; and the court held that it could not be done. 
 
 The question of naturalization was in noway involved, but the court says, incidentally, that a certi- 
 ficate of naturalization is good against all the world as a judgment of citizenship, from which may follow 
 the right to vote and hold property; but it can not be introduced as evidence of residence, age, or char- 
 acter. (91 U. S. R., 245.) 
 
 Mr. Calkins, in his very able and ingenious argument before the committee, relied with great 
 emphasis on the case of Coleman on habeas corpus (15 Blatchford, 406), in which the court says, speaking 
 of the Revised Statutes concerning naturalization proceedings: 
 
 "The provisions for recording proceedings at the close of the second condition and the provisions 
 for recording the renunciation mentioned in the fourth condition are introduced in such form that they 
 may very well be regarded as merely directory." 
 
 This was a criminal proceeding, highly penal in its nature, the offense with which Coleman was 
 charged being a felony, under Revised Statutes of the United States, section 5426. 
 
 Coleman held a certificate of naturalization, and the only question presented was: (1) Had the 
 certificate been unlawfully issued or made; and (2) did Coleman know that when he so issued it? 
 
 Coleman was arraigned for having so used said certificate for the purpose of registering himself as 
 a voter, knowing it was unlawfully issued. There were papers on file in the clerk's office, from whence 
 the certificate issued, setting forth the necessary proceedings of Coleman's naturalization. His name 
 was also entered in the naturalization index. The certificate was signed by the clerk of the superior 
 court, attested by the seal of the court, certifying that the copy, before set forth, of the entry in regard
 
 §424 
 
 THE QUALIFICATIONS OF THE MEMBER. 399 
 
 to Coleman in such naturalization index, "is a true extract from the record of naturalizations of this 
 court, remaining in my office to date." 
 
 Judge Blatchford held that Coleman was duly and l^ally admitted to citizenship, and that he 
 should be discharged. 
 
 It can not be contended that in a matter so highly penal any evidence that would go toward acquit- 
 tal would be sufficient to establish citizenship and clothe an alien with all the political powers and 
 privileges of a citizen. What would be sufficient in one case might be wholly insufficient in the other. 
 
 In such a prosecution the criminal intent or the guilty knowledge of using an unlawful certificate 
 would be the governing question. In such a case even a reasonable doubt would discharge the defend- 
 ant. A naturalized citizen is a mere creature of the law. He derives his existence as such from the 
 law, and if he fail to follow its essential provisions he can not be clothed with those high privileges such 
 a law confers. 
 
 But the court says in the Coleman case that propositions are announced the accuracy of which 
 can not be questioned — such as the admission of an alien to citizenship is a judicial act (15 Blatchford, 
 p. 420) — and at furthest the partial committal of the court in the Coleman case, that the statute requiring 
 the record or proceedings may very well be regarded as directory, can only be considered as a dictum, 
 as it was held in that case there was complete and sufficient record of naturalization. 
 
 Contestee also relies on 7 Hill, X. Y., 137-141, but in that case, it will be observed, the court says: 
 
 "The proceedings of naturalization are strictly judicial (p. 138). The right of citizenship is finally 
 conferred by the judgment of the court (p. 141)." 
 
 He also cites McCarty r. Marsh (5 N. Y., 263) as liberal to the naturalization of foreigners. 
 
 In that ease Justice Foot says: 
 
 "The simple question, then, is whether the record is conclusive evidence of the fact that a prior 
 declaration of intention was made in due form of law. The weight of authority is decidedly in the 
 affirmative. (Citing 6 and 7 Cranch, supra, Spratt v. Spratt, 4 Peters, and a large number of cases.)" 
 
 Contestee also relies on the case of The Acorn (2 Abbott, U. S. Reports, p. 434) as liberal concerning 
 the naturalization of foreigners. This was a libel of information and seizure for forfeiture for aU^ed 
 violation of registry laws. One of the causes alleged is, that when David Muir took the oath he was 
 not a citizen of the United States, as his oath alleged. 
 
 Muir introduced in evidence an exemplified copy of the record of his naturalization. So far as the 
 question of naturalization is concerned in that case. Judge Longyear decided that the judgment natural- 
 izing Muir was conclusive as to the preliminary proceedings necessary to give the naturalizing court 
 jurisdiction — a familiar principle that runs through aU adjudicated cases on that point. This judge 
 also says in his opinion: 
 
 "The proceeding to obtain naturalization is clearly a judicial one. (Ibid., p. 444.) 
 
 "A hearing is required to be had in open court, and the right can be conferred only by the judg- 
 ment of the court, and upon satisfactorj' proof. (Ibid., p. 444.)" 
 
 Contestee relies in his brief on the following extract from Morse on Citizenship, page 84: 
 
 " In case of an individual claiming to be a citizen by naturalization, the certificate or letter of 
 naturalization is the usual and orderly proof which is offered, but is not exclusive. If the letter or 
 certificate is lost and the record can not be discovered, secondary evidence to establish citizenship would 
 be admissible. (Citing Field's International Code, p. 136, note, and the opinion of Attorney-General 
 Black, vol. 9, p. 64.)" 
 
 The last-named author, under the subject of allegiance, cites Attorney-General Black, who simply 
 says: 
 
 "The fact of renunciation is to be established like any other facts for which there is no prescribed 
 form of proof by e\adence which will convince the judgment." 
 
 This was a case of a Bavarian, once naturalized here, claiming renunciation of his citizenship as a 
 citizen of this countrj-; and how and where the author of the above quotation got his law your committee 
 are at a loss to determine. In international affairs such a principle might apply, when the question of 
 citizenship is a matter of dispute and the liberty or property of a subject are involved. But there are 
 no authorities holding such a doctrine in this country when an alien, claiming to be naturalized, seeks 
 to establish that fact bj' parol proof. 
 
 The case of Dryden v. Swinburne (22 W. Va.) is a remarkable parallel case to this in all of its salient 
 features. Judge Green in that case, in an elaborate opinion, discusses the subject in the most learned 
 manner.
 
 400 PRECEDENTS OF THE HOUSE OF KEPBESENTATIVES. § 424 
 
 The following extracts from the syllabus in that case is a dear statement of the decision on this point: 
 
 "The law requires that an alien should be naturalized in a court of record, and his admission to citi- 
 zenship must be a judgment of such court; and therefore if it is claimed in any case that an alien has 
 been naturalized in a certain court, and it be shown, that if naturalized at all, he was naturalized in that 
 court, and the records of such court are produced, and an examination of them shows that no entry was 
 made on the records of such court naturalizing such alien, it can not be proven by parol evidence that he 
 was admitted to citizenship in such court, but that by inadvertence, or any other reason, there was no 
 entry made of it; nor can the citizenship of an alien, under such circumstances, be presumed by proof 
 of his having held real estate or of his having voted or held office or by other circumstances." 
 
 The same doctrine is announced in the case of Chae. Green's Son and others v. Salas (3 Federal Law 
 Reporter, July 26, 1887); also in Rutherford v. Crawford (53 Ga., 138). 
 
 In these last two cases a certificate was presented by the persons claiming to have been naturalized, 
 which was held insufficient in each. 
 
 In Andrews v. Inhabitants of Boylston (110 Mass., 214) it is held, if the records of a town meeting 
 fail to show a two-thirds vote to reestablish a school-district system, parol evidence is inadmissable to 
 show it, even though the record shows that the town voted to reestablish the school-district system. 
 
 The omission in a record can not be supplied by parol proof. (2 Pickering, 397.) 
 
 The court says "it would be dangerous to admit of such proof." (2 Pickering, 397. See also 125 
 Mass., 553; 117 Mass. 469; 58 Iowa, 503; Wharton's Evidence, 987; 18 Maine, 344; 3 Blackford, 125; 23 
 Maine, 123.) 
 
 In Slade v. Minor (2 Cranch, Circuit Court Reports, D. C, 139), the point was distinctly presented, 
 and the case was decided upon it, in which the court held that the naturalization of Charles Slade could 
 not be proved by parol. 
 
 Certificates of naturalization issued by the clerk of a court, without any hearing before the judge 
 in open court, are void, and confer no right of citizenship upon the holder. (McCrary on Elections, 
 see. 56.) 
 
 Starkie in his work on evidence, page 648, says: 
 
 ' ' In the first place, parol evidence is never admissible to supersede the use of written evidence where 
 written proof is required by law. Where the law, for reasons of policy, requires written evidence, to 
 admit oral evidence in its place would be to subvert the rule itself. 
 
 " To admit oral evidence as a substitute for instruments to which, by reason of their superior author- 
 ity and permanent qualities, an exclusive authority is given by the parties, would be to substitute the 
 irierior for the superior degree of evidence ; conjecture for fact, and presumption for the highest degree of 
 legal authority ; loose recollections and uncertainty of memory for the most sure and faithful memorials 
 which human ingenuity can devise or the law adopt; to introduce a dangerous laxity and uncertainty 
 as to all titles to property, which, instead of depending on certain fixed and unalterable memorials, 
 would thus be made to depend upon the frail memories of witnesses, and be perpetually liable to be 
 impeached by fraudulent and corrupt practices." 
 
 And he thus lays down the rule : 
 
 "In the first place, written evidence has an exclusive operation in many instances, by virtue of 
 peremptory legislative enactments. So it has in all cases of written contracts. So also in all cases where 
 the acts of a court of justice are the subject of evidence. Courts of record speak by means of their record 
 only, and even where the transactions of courts which are not, technically speaking, of record, are to be 
 proved, if such courts preserve written memorials, are the only authentic means of proof which the law 
 recognizes." 
 
 Wharton, in his Law of Evidence, section 1302, says: 
 
 "A court of record is required to act exactly and minutely, and to have record proof of all its 
 important acts. If it does not, these acts can not be put in evidence." 
 
 The proceedings of a court of record can be shown only by the records, unless they are lost or 
 destroyed. (Rutherford v. Crawford, 53 Ga.) 
 
 The minority views, signed by Mr. J. H. Rowell, of Indiana, and five other 
 members of the committee, held: 
 
 It is contended by contestant, and held by the majority of the committee, that no matter what 
 the fact is, unless there is a record remaining in the court, or unless there was a record made and retained
 
 § 424 THE QUALIFICATIONS OF THE MEMBER. 401 
 
 from which a transcript could be made, parol proof is not admissible to establish the fact of naturaliza- 
 tion and of the issue of a certificate thereof. 
 
 It is claimed that no naturalization is complete so as to invest the applicant with citizenship until 
 a record of the proceeding is made in the court where the judgment was rendered and the oath admin- 
 istered. 
 
 We hold the law to be that parol testimony is admissible to prove naturalization under circum- 
 stances such as are shown to exist in this case. 
 
 We hold further that the making out of a certificate of naturalization, reciting all the requisite facts, 
 under the seal of the court, is an entry of record of the proceedings, even though that certificate is carried 
 away from the court, instead of being left with the clerk. 
 
 We hold that, having done all that the statute requires of him, and having obtained his certificate 
 of naturalization in due form, with all proper recitals from a competent court, the person is from that 
 time invested with citizenship without reference to any further act to be performed by the clerk of the 
 court. 
 
 We hold that the certificate so obtained is original evidence and conclusive of citizenship in all 
 collateral proceedings, without proof of any record remaining in court and whether such a record exists 
 or not. 
 
 The minority quote Morse on Citizenship, the case of Acorn (2 Abb. U. S. 
 Reports, 434-4.37), Wharton's International Law Digests (sec. 174), Campbell v. 
 Gurden (6 Cranch, 179), Stark v. Insurance Co. (7 Cranch, 420), Insurance Co. v. 
 Tesdall (91 U. S. Reports, 245), In re Coleman (15 Black, 406), and after discussing 
 these cases say: 
 
 There can be no doubt that parol proof is admissible to establish the contents of lost deeds and 
 papers and records. (Greenleaf on Ev., vol. 1, sec. 509; Whalen's Ev., vol. 1, sec. 136; Wood's Prac. 
 Ev., sec. 7 et seq.; Ashly r. Johnson, 74 111., 392.) 
 
 Had contestee been able to produce this certificate, would anyone venture to question his citizen- 
 ship? And yet the case stands in proof precisely the same as if he had done so. Everything necessary 
 to admit parol proof of existence and loss of certificate was given in evidence. (Record, p. 256.) The 
 book of blank certificates in use in the court at the time is in evidence. (Record, pp. 214, 272-273, 
 383.) 
 
 Contestee proved that he was in fact naturalized; that no other record of the proceedings was made 
 so far as could be ascertained than the certificate issued to him; that he received his final certificate; 
 that it is lost; that he is the identical person who was naturalized, and the contents of certificates 
 universally in use at that time. By just such proof the courts of the country are constantly ascertaining 
 the contents of lost papers involving the title to property; the contents of most solemn records are so 
 proven. 
 
 Life and liberty are put into the scales upon the same kind of proof. If every other right of the 
 citizen may be thus established, we are at a loss to know why this contestee is to be deprived of like 
 rights and like application of unquestioned rules of law. 
 
 He was chosen to the Congress by the very emphatic voice of the legal voters of his district. He 
 has for more than thirty years been an inhabitant of the countrj-, deporting himself in such a way as to 
 meet the approval of his fellowmen. 
 
 For more than twenty years he has been recognized as a citizen of the United States, and as such 
 was chosen a Representative to the Fiftieth Congress from the Twelfth Congressional district of Indiana. 
 
 If the report of the majority of the committee is to be sustained, an unparalleled injustice will be 
 done to those who elected him and to contestee himself; not because of any fault or neglect on his part, 
 but because of the neglect of a clerk who is proven to have been negligent of duty and careless of the 
 rights cf others. 
 
 Courts will invoke the aid of technical rules to prevent gross injustice, but it is the boast of all 
 modem courts that mere technical rules of law are not permitted to stand in the way of doing equal and 
 exact justice, unless of such rigid character and so firmly embedded in the law as to compel adhesion to 
 them. Doubts on such questions are always resolved in favor of justice and against wrong. 
 5994— VOL 1—07 26
 
 402 PRECEDENTS OF THE HOUSE OF KEPRESENTATIVES. § 424 
 
 The majority of the committee have adopted a rule which, while some authority may be found in 
 favor of it, is rejected by other and weightier authority — a rule opposed to sound reason and the best 
 canons of construction. 
 
 They have invoked this bare technicality not to prevent wrong, but to enable the House to commit 
 an outrage upon the rights of contestee and the people of his district. 
 
 (2) The second question: 
 
 (2) If he can prove it by oral evidence, does the testimony disclose sufficient proof to establish that 
 fact? 
 
 The majority review the parol proof and give arguments to show its fragile 
 character. 
 
 The minority consider it sufficient, and thus review it: 
 
 Contestee is a native of Scotland. He came to this country in 1854, and has been a resident of 
 the State of Indiana almost continuously since 1857, most of that time in the city of Fort Wayne, his 
 present home. He was a captain in the Thirtieth Regiment of Indiana Infantry Volunteers and was 
 dangerously wounded at the battle of Shiloh. 
 
 In 1858 he declared his intention to become a citizen of the United States, as appears of record in 
 the clerk's oiTice of Allen County, Ind., the certificate issued to him having been lost. 
 
 In February, 1865, about the 28th of that month, he appeared in the court of common pleas of 
 Allen County, Ind. (a court having common-law jurisdiction,, a clerk and a seal), and produced two 
 credible witnesses in open court, viz, John Brown and Isaac Jenkson, who were also sworn in open 
 court as his witnesses to complete his naturalization. He took the oath of allegiance to the United 
 States and of renunciation, which was administered to him by the judge of the coiirt. 
 
 The clerk then and there issued to him a final certificate of naturalization, under the seal of the 
 court, the contents of which certificate is shown by the proof of the only form of final certificates used 
 in that court. This certificate with other important papers of contestee has been lost, as conclusively 
 shown by the evidence. 
 
 The clerk of the court negligently omitted to receive the oath of allegiance and its recitals, but 
 gave to Mr. White the record of the proceedings then made in the form of a certificate of naturalization, 
 such as is usually issued to foreigners on being naturalized, and almost universally accepted as con- 
 clusive evidence of citizenship. 
 
 On pages 286, 287, and 288 of the record will be found a list of about one hundred and fifty persons 
 naturalized during the years between 1860 and 1870 in Allen County, of which naturalization the 
 only record remaining is a duplicate of the certificate issued to the person naturalized, from which it 
 appears that the common way of recording naturalization proceedings in those courts was to make dupli- 
 cate certificates, reciting all the facts necessary to complete naturalization, signed by the clerk and 
 sealed with the seal of the court, retaining one in the clerk's office and giving the other to the person 
 naturalized. 
 
 In some cases the clerk neglected to fill up the duplicate blank kept in the office, only filling out 
 one blank and giving that to the person so naturalized, such certificate being the only record made by 
 the clerk. 
 
 As showing the negligent manner of keeping the records by the clerk of that court, the evidence 
 discloses several instances of making a record of naturalization years after the fact. 
 
 This same clerk was in the habit of writing up judgments in divorce cases when the minutes of the 
 judge did not show that any divorce had been granted, and in four or five cases records were found 
 written up in which the several cases had not been even docketed, in which there was nothing to show 
 that such divorces had ever been granted by the court. 
 
 In addition, it is proper to state that many other persons are similarly situated. Persons who claim 
 to have been in fact naturalized in Allen County, who have moved away, have frequently written and 
 in some cases returned to get proof of citizenship and found no trace of a record. 
 
 The fact of Mr. White's naturalization in the courts and at the time claimed is established to a 
 moral certainty. See testimony of Isaac Jenkins (R., pp. 187-195), of James B. White (R., p. 229), 
 and of William T. Pratt, Democratic sheriS at the time (R., p. 196). The testimony is positive.
 
 § 424 THE QUALIFICATIONS OF THE MEMBER. 403 
 
 specific, uncontradicted, and unimpeached. Its conclusiveness will hardly be questioned by any fair- 
 minded man. The absence of a record remaining in the clerk's office in no way casts a doubt upon 
 it, taken in connection with the evidence of the unreliability of these records as kept by the clerk, or 
 rather by the deputy. 
 
 Mr. White has passed all the years of his manhood in this country. He has made the greatest 
 sacrifice that one can make for his country — the offer of his life in its defense. He has held office in the 
 city where he resides, and has established such a character that his fellow-citizens elected him to Con- 
 gress by nearly 2,500 plurality in a district where the party with which he affiliates is in the minoritj' 
 by some 3,000. 
 
 Thousands of foreign-bom citizens are in like situation with him, the evidence of their citizenship 
 resting upon duly authenticated certificates issued by competent courts and without complete records 
 thereof remaining. 
 
 Many of them hold responsible positions in public life; all of them exercise the right of suffrage 
 at every recurring election. Large property interests depend upon their citizenship. 
 
 It may safely be said that the right to seats in the House of many Members depends upon the 
 validity of citizenship resting upon just such evidence. 
 
 In the debate the majority laid stress on the fact that neither the record of the 
 court nor the naturalization papers could be produced. 
 
 (3) The conclusion wliich the majority proposed raised another question: 
 
 (3) If contestee is ineligible, is contestant, having received the next highest number of votes, 
 entitled to the seat? 
 
 We answer the first in the negative. 
 
 The majority say: 
 
 Now, with regard to the last proposition, of seating contestant. 
 
 The universal weight of authority in the United States and the numerous decisions in both 
 branches of the Congress thereof render an extended discussion on this point quite unnecessary. With 
 the exception of the State of Indiana, where the rule is established by the supreme court, holding 
 that, where a candidate who receives the highest number of votes is ineligible, the candidate receiving 
 the next highest number of votes is entitled to the office, there is perhaps not another State in the 
 Union where such a doctrine prevails. 
 
 The authorities cited by contestant which discuss the control of suffrage as residing in the States, 
 subject to the limitation imposed in the fifteenth amendment of the Federal Constitution, in our 
 opinion, wholly fail to establish his position, that the issue on this point stands and appends wholly 
 upon Indiana law. 
 
 To suffer a Member to be seated from one State in pursuance of this view and forbid the same 
 right on the part of a Member from another State would destroy that equality and harmony in the 
 membership of our National Legislature which the founders of our Government obviously intended to 
 establish. 
 
 The Federal Constitution says the Members of the Honse shall be chosen every second year by 
 the people of the several States, and that the electors of each State shall have the qualifications 
 requisite for electors in the most numerous branch of the State legislature. 
 
 It is a cardinal idea in our political system that this is a people's government and that the 
 majority rule. In the convention which framed our common Constitution, when it was proposed to 
 strike out people in the clause above referred to, and insert legislatures, thus giving the legislatures 
 the power to elect Representatives, there were only three votes in the affirmative and eight in the 
 negative. On the final vote only one State voted in the aSirmative, one was divided, and nine in the 
 negative. 
 
 Mr. Jefferson considered that a wholesome provision in our organic law on the ground that the 
 people should be taxed only by Representatives chosen by themselves. It is true that article 4, section 
 I, of the Constitution of the United States says, "Full faith and credit shall be given in each State to 
 the public acts, records, and judicial proceedings of every other State," and that Congress may enact 
 the necessary laws thereunder. 
 
 This was chiefly intended to give the same conclusive effect to judgments of all the States and
 
 404 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 424 
 
 equal verity to the public acts, records, and judicial proceedings of one State in another, so as to promote 
 uniformity, as well as certainty, among them. (See Story on the Constitution, sec. 1307.) 
 
 This author adds: 
 
 "It is, therefore [a foreign judgment], put upon the same footing as a domestic judgment; but 
 this does not prevent an inquiry into the jurisdiction of the court in which the original judgment was 
 given to pronounce it or the right of the State itself to exercise authority over the persons or the subject- 
 matter. We think it can not be assumed under this clause of the Constitution, to hold full faith must 
 be given to the opinion of every State judge on mere matters of law; but to the record the judicial 
 proceedings of a State court, whether made as the result of right rulings or wrong, that, where properly 
 authenticated, such record would be held conclusive as to its own identity." 
 
 Judge Cooley announces the law to be in this country, that if the person receiving the highest 
 number of votes is ineligible, the opposing candidate is not elected and the election fails. 
 
 The report then cites the Congressional cases supporting this view. 
 
 The view taken of the case by Mr. Rowell and his minority associates did not 
 render a decision of the question necessary; but Mr. J. H. O'Neill, of Massachusetts, 
 filed individual views: 
 
 That the qualification of a Member of Congress — his eligibility — depends upon the Federal Consti- 
 tution and the laws of Congress passed in pursuance thereof. 
 
 That the election of a Member depends upon the voters of the district he represents, expressing them- 
 selves in the way prescribed by the constitution and laws of the State from which he comes. To ascer- 
 tain whether eligible or not, we look to the Constitution and laws of the United States; to ascertain 
 whether elected or not, we look to the constitution and laws of the State whose electors send him to 
 Congress. 
 
 Recognizing the first proposition, the majority of the committee have found and report that the 
 contestee does not possess the qualifications prescribed. Disregarding, however, the second proposition, 
 the committee report adversely to the right of contestant to the place to which, under the laws of Indiana, 
 and by the voice of the electors of the Twelfth Congressional district of said State, legally expressed, he 
 was duly elected. In that State the rule of law, as held by a long and unbroken line of authority, by the 
 courts of last resort and in the halls of the legislature, the principle is well settled that every vote given 
 by an elector to an ineligible candidate counts for naught; that such vote is inefiectual to elect or to 
 defeat. In one of the early cases in that State, the supreme court of the State say: 
 
 "While it is true that the votes of the majority should rule, the tenable ground appears to be that if 
 the majority should vote for one wholly incapable of taking the office, having notice of such incapacity, 
 or should perversely refuse or negligently fail to express their choice, those, although in a minority, who 
 should legitimately choose one eligible to the position should be heeded. * * * 
 
 "True, by the constitution and laws of the State, the voice of the majority controls our elections, 
 but that voice must be constitutionally and legally expressed. Even a majority should not nullify a 
 provision of the constitution or be permitted at will to disregard the law. In this is the strength and 
 beauty of our institutions. (Gulick v. New, 14 Indiana, p. 93.)" 
 
 In the case Gulick v. New, supra, the court places the impotency of the votes upon the question 
 of notice to the voter of the ineligibility of the candidate for whom the voter casts his ballot. Later 
 cases refer to want of force in the vote without referring to the question of notice. But without referring 
 to those cases, it is here asserted that — 
 
 "The legal presumption in favor of the nationality of birth, or domicile of origin, continues until 
 proof of change; that in the absence of proof that an alien has become a citizen of the United States his 
 original status is presumed to continue. (Howenstine v. Lynham, 100 U. S. Reports, p. 483.) 
 
 "A disqualification patent or notorious at once causes the votes given for the candidate laboring 
 under the disqualification to be thrown away. The same would probably be held to be the case where 
 the electors had the means of knowledge or might have ascertained the facts had they desired. (Grant 
 on Corporations, p. 208.)" 
 
 That contestee was of foreign birth, like most foreigners professed of himself, would conclusively 
 show. Then, if alienage is presumed to continue until citizenship is proven, those who voted for him 
 must be presumed to have known. Everyone is bound to know that seven years' citizenship is required 
 of a Member of Congress.
 
 § 425 THE QUALIFICATIONS OF THE MEMBER. 405 
 
 425. The case of Lowry v. White, continued. 
 
 In the record of an election case allegations and testimony relating to 
 nominations are out of order. 
 
 Personalities and, generally, also digressions on local politics are irrel- 
 evant to the record of an election case. 
 
 Motions to suppress testimony in an election case already printed 
 under the law were disregarded by the Elections Committee. 
 
 An Elections Committee has ruled that the determination of result 
 contemplated by the law governing notice of contest is not reached until 
 returns have been compared or certified as required by law. 
 
 The Committee on Elections has apparently acquiesced in the view 
 that a contestant, while bringing into issue no ground that could possi- 
 bly give him the seat, is yet to be treated as a memorialist, entitled to 
 have the question determined. 
 
 Form of resolutions for unseating a Member for disqualifications. 
 
 The majority report determines certain preliminary questions, incidental in 
 natiu"e : 
 
 (a) All of the allegations and testimony relating to the nomination of contestant are foreign to the 
 merits of the case, and are not considered by the committee. 
 
 (6) A large portion of the printed record in the case is needlessly encumbered with such testimony, 
 ramifying and shaping itself into a multitude of phases with reference to State, county, and Congressional 
 politics. The record is also disfigured with acrimonious personalities between contestant and contestee, 
 that were brought into the testimony and were developed by way of objections to evidence in taking the 
 same — all of which your committee dismiss from consideration as irrelevant to the legitimate issues 
 involved. 
 
 (c) Motions were filed during the consideration of the case by the committee, by both contestant 
 and contestee, to suppress certain portions of the testimony, but your committee could see no practical 
 purpose in entertaining the same otherwise than is involved in the general consideration of the case, in 
 view of the act of Congress of March 2, 1887, under which the record has been printed and distributed, 
 as required by law, prior to the hearing of the case. 
 
 Under the provisions of that statute both parties could have appeared within twenty days, on the 
 notice of the Clerk of the House, and have agreed upon portions of the record to be printed, or should 
 they have failed to agree, it was the duty of the Clerk of the House to decide what portions should be 
 printed. 
 
 It is to be hoped this provision of the law will be observed in future, as it will greatly expedite a 
 consideration of contested cases, and relieve both the committee and the House of a great deal of needless 
 labor in investigating the same. 
 
 (d) The Revised Statutes of the United States, 1878, section 105, require notice of contest to be 
 given within thirty days after the result of an election shall have been determined. 
 
 Service was had on the contestee on the 20th day of December, 1886. The contestant swears that 
 he visited the office of the secretary of state of Indiana as late as the 23d or 24th of November, 1886, and 
 that he was informed by that official that the election returns of the district in question had not then 
 been compared or certified as required by law. (See Lowry's testimony, Record, 409.) This is not 
 denied; consequently, in legal contemplation, the result had not been determined, and the contestant 
 was clearly within the statute requiring him to give thirty days' notice. 
 
 The minority views also discuss a question which by implication the majority 
 of the committee may also have approved, since they in fact did not favor dismissing 
 the contest: 
 
 (e) It is urged by contestee that inasmuch as contestant abandoned the only ground of contest 
 which could give him any standing as a contestant for the seat occupied by contestee, the whole pro-
 
 406 PRECEDENTS OF THE HOUSE OF REPRESEKTATIVES. § 426 
 
 ceeding ought to bo dismissed. That even admitting the ineligibility of contestee as charged, 
 contestant has no standing in the case, because, having been beaten at the polls, he can not under any 
 proper view of the case succeed to the seat from which he seeks to oust the sitting Member. 
 
 That this would be the rule in judicial proceedings will not be denied. But inasmuch as all the 
 papers in the case were before the committee for their consideration, we are inclined to treat the con- 
 testant as a memorialist, and to examine the questions presented for the purpose of reporting our conclu- 
 sions to the House. 
 
 In accordance with their conclusions, the majority proposed two resolutions: 
 
 Resolved, first, That James B. White, not having been a citizen of the United States for seven years 
 previous to the 4th of March, 1887, is not entitled to retain his seat in the Fiftieth Congress of the 
 United States from the Twelfth Congressional district of Indiana. 
 
 Resolved, second. That Robert Lowry, not having received a majority of the votes cast for Repre- 
 sentative in the Fiftieth Congress from the Twelfth Congressional district of Indiana, is not entitled to 
 a seat therein as such Representative. 
 
 The minority proposed this resolution: 
 
 Resolved, That James B. White was duly elected a Representative to the Fiftieth Congress from 
 the Twelfth Congressional district of Indiana, and is entitled to retain his seat. 
 
 The report was debated at length on February 2, 4, and 6,' and on the latter 
 day the resolution of the minority was substituted for that of the majority by a vote 
 of yeas 186, nays 105. Then the resolutions of the majority were agreed to as 
 amended.^ So the recommendations of the majority of the committee were reversed, 
 and sitting Member retained his seat. 
 
 426. The case relating to the qualifications of Anthony Michalak, of 
 Illinois, in the Fifty-ninth Congress. 
 
 The House considered a protest as to the qualifications of a Member 
 after he had taken the oath without objection. 
 
 Form of protest as to the qualifications of a Member. 
 
 The House referred a question as to the qualifications of a Member to 
 an elections committee instead of to a select committee. 
 
 On December 4, 1905,^ at the time of the organization of the House, the name 
 of Anthony Michalek appeared on the Clerk's roll among the Members-elect from 
 IlHnois. He voted for Speaker and was sworn in without objection. 
 
 On December 5,* Mr. Henry T. Rainey, of Ilhnois, claiming the floor for a ques- 
 tion of privilege, and being recognized, presented the following protest: 
 
 To the honorable the House of Representatives of the Fifty-ninth Congress of the United States of America: 
 
 The undersigned citizens and legal voters of the Fifth Congressional district of Illinois respectfully 
 represent unto your honorable body that at the last Congressional election held in said district one 
 Anthony Michalek was elected as a Member of the Fifty-ninth Congress; that since said election it has 
 come to the notice of the undersigned that said Anthony Michalek was not at the time he was elected 
 nor is he now a citizen of the United States. 
 
 Wherefore we protest against being represented in your honorable body by one who has not deemed 
 it worth while to become a citizen of the United States, and respectfully petition your honorable body 
 
 'Record, pp. 915, 947, 988-1001; Journal, pp. 684-686. 
 
 ^ The Journal omits to notice that the resolutions as amended were agreed to, but the Record (p. 
 1001) and subsequent proceedings show that the question was in fact put and agreed to. 
 ^ First session Fifty-ninth Congress, Journal, p. 3; Record, p. 39. 
 * Journal, p. 68; Record, p. 108.
 
 § 426 THE QUALIFICATIONS OF THE MEMBER. 407 
 
 tB cause an investigation to be made, and if it is found that said Michalek is not a citizen of the 
 United States to take such action in the premises as to your honorable body shall seem fit and proper. 
 
 And in support of this petition we herewith submit the affidavits of Julius M. Kahn, Enoch P. Mor- 
 gan, and Joseph Pejsar, which affida\-its are made part of this petition, and we offer to produce other 
 and additional testimony on any hearing ordered by your honorable body. 
 
 And we will ever pray. 
 
 State op Illinois, County of Cook, ss: 
 
 Julius M. Kahn, being first duly sworn, on oath deposes and says that he is an attorney at law, and 
 resides at 729 East Fiftieth place, in the city of Chicago; that he is a native-bom citizen of the United 
 States, and that he is thoroughly familiar with the records of the courts of Cook County, in the State of 
 Illinois, and a competent person to examine the records of the courts; that in said county there are four 
 courts which have the power to naturalize citizens, namely: The circuit court, superior court, county 
 court, and criminal court, and no other court in said Cook County has such power, and that no other 
 court had such power for more than tliirty years last past; that he has carefully examined the records 
 of each and every one of said four courts for the purpose of ascertaining whether one Vaclav Michalek 
 ever became a citizen of the United States; that he carefully examined the records beginning with the 
 year 1879 and ending with the year 1890, both inclusive, and that there is no record in any of said 
 courts showing that one Vaclav Michalek became a naturalized citizen during said period of time, and 
 that during all of said period of time no one by the name of Michalek became a citizen in said Cook 
 County, except one Michael Michalek, who became a citizen on March 26, 1888, by naturalization and 
 judgment of the superior court of Cook County; that said Michael Michalek, as appears from said records, 
 was a native of Germany, and not a native of Bohemia, Austria, and that he took the oath renouncing 
 allegiance to the Emperor of Germany. 
 
 And this affiant says that after a thorough investigation of the records he finds that Vaclav Mich- 
 alek was never naturalized in the county of Cook during said period of time. 
 
 Affiant further says that under the election laws of the State of Illinois each voter must register 
 and answer under oath certain questions in regard to his qualifications as a voter, and that the record 
 of each voter's answers is kept ; that this affiant examined the records so kept in the election commis- 
 sioners' office in the city of Chicago, County of Cook, and State of Illinois, and finds that Anthony 
 Michalek, Congressman-elect from the Fifth Illinois district, registered in the Eighth precinct of the 
 Eleventh ward in said city in the year 1905, and that his sworn answers to questions propounded were 
 that he, Anthony Michalek, was born in Bohemia, and that he became a citizen of the United States 
 by act of Congress. 
 
 And further affiant saith not. 
 
 Julius M. Kahn. 
 
 Subscribed and sworn to before me this 18th day of November, A. D. 1905. 
 
 [seal.] Edw. R. Newmann, Notary Public. 
 
 State of Illinois, County of Cook, ss: 
 
 Josef Pejsar, being first duly sworn, on oath deposes and says that he is, and for about thirty-five 
 years last past has been, a citizen of the United States; that he has resided in the city of Chicago for 
 about thirty-nine years last past; that he is a householder and resides, and has resided for more than 
 ten years last past, at No. 3437 Lowe avenue, in the city of Chicago; that he is acquainted with Anthony 
 Michalek, Congressman-elect from the Fifth Congressional district; that the name of the father of said 
 Congressman-elect was Vaclav Michalek; that said Vaclav Michalek was by occupation a brewer; 
 that this affiant was also by occupation a brewer; that both of them were natives of Bohemia, Austria, and 
 that both of them were employed by the Seipp Brewing Company, in the city of Chicago, and that 
 this affiant was well acquainted with said Vaclav Michalek, father of said Congressman-elect; that 
 said Vaclav Michalek arrived in this country in 1879 as an immigrant from Bohemia, and brought 
 said Anthony Michalek, his son, with him; that he came direct to Chicago, and remained here until 
 the time of his death; that he died in the year 1883, and that he had not been fully five years in this 
 country at the time of his death, and that at the time of his death the said Vaclav Michalek was at 
 least 40 years of age; and that the said Vaclav Michalek had never been in the United States prior 
 to the year 1879. That at an election held in the city of Chicago a few months preceeding the death
 
 408 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 426 
 
 of said Vaclav Michalek this affiant had a conversation with said Vaclav Michalek in the Bohemian 
 language, in which conversation this affiant desired said Michalek to become interested in the coming 
 election, and asked him to become a citizen of the United States and make application for his first 
 papers; but that said Vaclav Michalek answered that elections could get along without him, and that 
 he was not and did not care to become a citizen of the United States for some time to come. 
 
 And further affiant saith not. 
 
 JosEP Pejsar. 
 
 Subscribed and sworn to before me this 21st day of November, A. D. 1905. 
 
 [seal.] Alfar M. Eberhardt, Notary Public. 
 
 State of Illinois, County of Cook, ss: 
 
 Matous Sedlacek, being first duly sworn, on oath deposes and says that he is by occupation a brewer; 
 that he is a citizen of the United States, and resides at 630 West Eighteenth street, in the city of Chicago, 
 Cook County, HI., and that he has been a resident of the city of Chicago for a period of not less than 
 thirty-four years; that he was bom in Bohemia, and speaks the Bohemian language. 
 
 Affiant further says that he became acquainted with one Vaclav Michalek about the time and 
 during the same year that said Vaclav Michalek arrived in this country as an immigrant from Bohemia; 
 that said Vaclav Michalek came here with his family, and was the father of Anthony Michalek, Con- 
 gressman-elect from the Fifth Illinois district; that said Vaclav Michalek worked during his lifetime 
 at Seipp Brewing Company and at Hauck's malt house; that for a period of about three years the said 
 Vaclav Michalek and this affiant worked together and often conversed with each other in the Bohemian 
 language. 
 
 Affiant further says that he well remembers the time of the death of said Vaclav Michalek, and 
 that between the time of the arrival of said Vaclav Michalek as an immigrant in this country and the 
 time of his death less than five (5) years elapsed. 
 
 And further affiant saith not. M.^xous Sedlacek. 
 
 Subscribed and sworn to before me this 21st day of November, A. D. 1905. 
 
 [seal.] Alfar M. Eberhardt, Notary Public. 
 
 State of Illinois, County of Cook, ss: 
 
 Enoch P. Morgan, being first duly sworn, on oath deposes and says that he resides at 495 South 
 Hermitage avenue, in the city of Chicago, HI.; that he is, and for the past seventeen years has been, 
 a citizen of the United States, and for more than thirteen years last past has been a resident of the 
 city of Chicago; that he is a resident of the Fifth Congressional district and is well acquainted with 
 Anthony Michalek, Congressman-elect from said district; that during the last Presidential campaign 
 this affiant was one of the Republican campaign speakers in the employ of the national committee; 
 that said Anthony Michalek informed this affiant that he, Michalek, was born in Bohemia, and that 
 his father emigrated to this country and brought said Anthony with him when said Anthony was a 
 boy of tender years; that he, said Anthony Michalek, was not a citizen of the United States; that the 
 said conversation took place at the time when said Anthony Michalek was a candidate for Congress at 
 the last national election; that this affiant advised him that it was his duty to at once apply to become 
 a citizen of the United States, and told him that he could obtain his papers easily, because he came 
 to this country when he was under the age of 18 years; and that this affiant informed him that he should 
 not under any circumstances omit to perform that duty at once, or that he would surely get himself 
 in trouble if he voted without being a citizen; that said Anthony Michalek replied that nobody would 
 know anyway, and that it would not make any difference; that one of his relations, who was also not a 
 citizen, had held office, and that he saw no reason why he could not hold office without going to the 
 trouble of taking out his papers, and that nobody would know the difference. 
 
 And further affiant saith not. 
 
 Enoch P. Morgan. 
 
 Subscribed and sworn to before me this 18th day of November, A. D. 1905. 
 
 [seal.] Julius M. Kahn, Notary Public.
 
 § 427 THE QUALIFICATIONS OF THE MEMBER. 409 
 
 The memorial having been read, Mr. Rainey offered the following: 
 
 Resolved, That the protest of citizens of the Fifth Congressional district of Illinois against being 
 represented in Congress by Anthony Michalek, declared by them to be an alien, be referred to a special 
 committee of five Members of this House, to be appointed by the Speaker, for immediate investigation. 
 
 To this Mr. James R. Mann, of Illinois, offered an amendment as follows: 
 
 Strike out of the resolution the words "a special committee of five Members of this House, to be 
 appointed by the Speaker, for immediate investigation" and insert "be referred by the Speaker to the 
 appropriate committee of this House when appointed." 
 
 Debate followed as to the propriety of the consideration of the subject by an 
 elections coromittee instead of a special committee, during which Mr. Marlin E. 
 Olmsted, of Pennsylvania, cited the provisions of Rule XI giving the Elections 
 Committees the right to report at any time on the right of a Member to a seat, and 
 Mr. Mann recalled the fact that in the First Congress a question as to qualifica- 
 tions was passed on by the Elections Committee. 
 
 After debate the amendment was agreed to, yeas 178, nays 93. Then the 
 resolution as amended was agreed to. 
 
 427. The case of Anthony Michalek, continued. 
 
 The House authorized its committee to take testimony in a case 
 wherein the qualifications of a Member were impeached. 
 
 As to the degree of testimony required to put the burden of proof on 
 a Member whose status as a citizen was impeached. 
 
 On January 29, 1906,' Mr. H. Olin Yoimg, of Michigan, from the Conunittee 
 on Elections No. 1, submitted the following report: 
 
 The Committee on Elections No. 1, to whom was referred theprotestof citizens of the Fifth Congres- 
 sional district of Illinois, against the right of Hon. Anthony Michalek, elected as a Member of the House 
 of Representatives from that district to the Fifty-ninth Congress, to a seat in the House, on the ground 
 that he was not at the time he was elected a citizen of the United States, beg leave to report and recom- 
 mend the passage of the following resolution: 
 
 "\Miereas, there is now pending before the House of Representatives a protest alleging that the 
 Hon. Anthony Michalek was not at the time of his election as a Member of this House, and is not now, a 
 citizen of the United States, and therefore is disqualified to be or remain a Member of this House, which 
 protest has been referred to the Committee on Elections No. 1 for investigation: Therefore 
 
 "Resolved by the House of Representatives, That said committee be empowered to take such testi- 
 mony as it deems necessary to a determination of said matter, either before said committee or before a 
 subcommittee thereof or a member of said Committee on Elections No. 1 appointed therefor, or any other 
 person selected by said committee for such purpose, and that the time, place, and manner of taking, 
 certifying, and returning said testimony be determined by said committee, and that the expenses incurred 
 in taking said testimony be paid from the contingent fund of the House upon the order of said Committee 
 on Elections No. 1." 
 
 The resolution was agreed to by the House. 
 
 On March 6,^ Mr. James R. Mann, of Illinois, submitted the unanimous report 
 of the committee, wliich recited the petition protesting against the seating of Mr. 
 Michalek, and said: 
 
 The petition purported to be signed by John F. Joyce, 696 West Taylor street, Chicago, and 124 
 other persons. 
 
 ' Journal, p. 356; Record, p. 1698. 
 2 House Report No. 2117.
 
 410 PRECEDENTS OF THE HOUSE OF BEFKESENTATIVES. § 427 
 
 The petition having been referred to this committee, the House, on the 29th day of January, A. D. 
 1906, passed a resolution authorizing this committee to take testimony in order to determine the right 
 of Mr. Michalek to his seat. 
 
 The original petition was supported by the affidavits of Julius M. Kahn, Joseph Pejsar, Matous 
 Sedlacek, and Enoch P. Morgan, which were attached to the petition and formed a part thereof, as 
 presented to the House. The affidavit of Julius M. Kahn did not, on its face, make any case against 
 Mr. Michalek, because it showed that while affiant stated he had made search of the records of certain 
 courts in Chicago, Cook County, 111., to ascertain whether the father of Mr. Michalek had been natural- 
 ized, it also showed that he had made no search for such naturalization in either the United States 
 district or circuit court in Chicago, of which courts this committee necessarily takes notice. 
 
 The affidavit of Enoch P. Morgan did not make out a prima facie case against Mr. Michalek, because 
 affiant simply stated what, at the best, would be a conclusion as to citizenship. 
 
 The two affidavits of Joseph Pejsar and Matous Sedlacek, however, were to the effect that Mr. 
 Anthony Michalek, the sitting Member, came to this country when he was a minor, with his father, 
 and that the father, Vaclav Michalek, died before he had been in this country a period of five years. 
 
 The statements in the affidavits of Sedlacek and Pejsar seem to justify the committee in permitting 
 the protestants to offer evidence in support of their protest, and accordingly such evidence was taken 
 by a member of the committee and by direction of the committee in Chicago. 
 
 At the taking of this testimony neither Joseph Pejsar nor Matous Sedlacek was called upon to testify, 
 and it was then, and is now, admitted that the affidavits of these two men were false. 
 
 At the taking of the testimony in Chicago not one of the protestants appeared and not one of them 
 testified. 
 
 NECESSITY FOR CARE WHEN CHARGES ARE MADE AGAINST THE RIGHT OP A MEMBER OP CONGRESS TO 
 
 HIS SEAT. 
 
 The necessity for care in considering and examining a protest of this character is well exemplified 
 by this particular case. Here are 125 names signed to a protest and on the hearing not one of the per- 
 sons signing the protest appears to give his reasons for making the protest. The two persons who are 
 principally relied upon by their affidavits to sustain the protest do not appear, and it is admitted that 
 their affidavits are falsehoods. By what right do these 125 men make a statement that a Member of 
 this House is not entitled to his seat and then offer no proof in support of it? Were Mr. John F. Joyce 
 and the other signers of the protest simply dummies who were being used by somebody else? Were 
 they the cat's-paw to pull the chestnuts out of the fire in the interest of someone else? 
 
 These persons have trifled with the dignity of this House. They have not even had the manliness 
 to come before the committee at the hearing and state that they were deceived by the false affidavits of 
 Pejsar and Sedlacek. We do not wish to be understood as criticising counsel who appeared for or in 
 support of the position of the protestants. Counsel in behalf of the protestants were engaged as and 
 appeared as lawyers. They presented their case with the utmost fairness and in a manner to maintain 
 their high position as leaders among the great bar at Chicago. 
 
 ANTHONY MICHALEK IS FOREIGN BOBN. 
 
 It appears Trom the evidence in the case that Anthony Michalek, the sitting Member, came to this 
 country with his father, Vaclav Michalek, and his mother, Thercse Michalek, in 1878, when only a few 
 months old. 
 
 There are five ways, in any one of which Anthony Michalek might have become a citizen of the 
 United States. 
 
 First. By the naturalization of his father, Vaclav Michalek, during the minority of the son. 
 
 Second. By the naturalization of his mother, Therese Michalek, after the death of his father, during 
 the minority of the son. 
 
 Third. By the marriage of Therese Michalek after the death of Vaclav Michalek to a citizen of the 
 United States during the minority of the son. 
 
 Fourth. By the naturalization of Anthony Michalek himself as a person who came here under the 
 age of 18, he having the right under the statute to receive his final papers without taking out first papers. 
 
 Fifth. In case his father, Vaclav Michalek, took out his first papers and then died, by compliance on
 
 §427 
 
 THE QUALIFICATIONS OF THE MEMBER. 411 
 
 the part of Anthony Michalek with section 2168 of the Revised Stattites, providing that where a person 
 takes out his first papers and dies his widow and minor children shall be considered as citizens and be 
 entitled to all the rights and privileges as such upon taking the oaths required by law. 
 
 It wiU be seen, therefore, that the sitting Member might have become a citizen by reason of the 
 naturalization of his father or of his mother or of himself. In order to make a prima facie case against 
 him by an examination of the records, it would seem to require an examination as to all three of these 
 persons. There are at least six courts in the city of Chicago, where these persons lived from the time 
 they came into the countr>-, which are authorized by law to issue naturalization papers. These are 
 foiu- State courts and two Federal courts. 
 
 To make a prima facie case against the sitting Member it would be necessary to examine the records 
 in each of these six courts for naturalization of Vaclav Michalek, Therese Michalek, and Anthony 
 Michalek. This would make at least eighteen separate examinations of records. As a matter of fact, 
 counsel for protestants offered testimony concerning the naturalization of Vaclav Michalek, the father, 
 in the four State courts. No testimony was offered concerning the naturalization of Vaclav Michalek 
 in the two Federal courts and no testimony was offered as to the naturalization of Therese Michalek or 
 Anthony Michalek in any of the six courts. 
 
 The purpose of offering testimony at all concerning records of the courts was to shift the burden 
 of proof from the protestants to the sitting Member. If any testimony be necessary concerning the 
 records in any coiuls, in order to shift the burden of proof, then it would seem that testimony ought 
 to be offered as to all of the courts, and if it be necessarj' to offer testimony concerning the naturalization 
 of the father, Vaclav Michalek, it would seem to be also necessarj- to offer testimony concerning the 
 records as to Anthony Michalek, the sitting Member himself, as well as his mother, Therese Michalek, 
 if it be desired to shift the burden of proof. 
 
 ■^Tiile there are six courts in Chicago having the power to naturalize, the law also provides that 
 any person living in Chicago may apply to any court within the State for naturalization. 
 
 We think it might be fairly well contended that proof that neither Vaclav Michalek, the father, 
 Therese Michalek, the mother, or Anthony Michalek, the son, was naturalized in any court in Cook 
 County would shift the burden of proof to the sitting Member without requiring the protestants to 
 offer proof as to the many courts in Illinois outside of Cook County, though we do not wish to be con- 
 sidered as expressing any decided opinion upon that question, it being wholly unnecessary for the 
 decision of this case. 
 
 It is perfectly manifest in our opinion that if evidence concerning the records of any of the courts 
 as to the naturalization of either the father, the mother, or the son be necessary to effect the shifting 
 of the burden of proof, then it is necessary to off'er evidence concerning all of these local courts. 
 
 The evidence which was produced relating to the naturalization of Vaclav Michalek in the State 
 courts of Cook County was mainly evidence relating to an examination of the indexes of natiualization 
 and not to an examination of either the actual records or the original applications. Counsel for prot- 
 estants seemed to admit that an examination of the indexes (not required by law to be kept) might 
 be insufficient to prove the contents of the records, and offered upon the argument of this case in com- 
 mittee, and after the hearing and testimony had been completed, affidavits of various persons connected 
 with the offices of the clerks of the State courts in Chicago concerning the records themselves. 
 
 Without expressing any opinion as to the right of the protestants to have these affidavits admitted 
 in evidence without an opportunity on the part of the sitting Member to a cross-examination of the 
 witnesses, we have considered the affidavits as evidence in the case, inasmuch as giving them the weight 
 of testimony has not resulted in detriment to the sitting Member, who was deprived of the opportunity 
 of cross-examination. 
 
 The evidence in this case shows that the condition of the naturalization papers and records in 
 Cook County is not very satisfactory; that the indexes have many mistakes in them; that all the origi- 
 nal applications for naturalization have not been entered of record as required by the statute, and 
 that the naturalization papers and records have not been kept with that degree of care and accuracy 
 which is presumed to be used in the keeping of ordinary court records and documents. It is not likely 
 that the condition of the naturalization records in Cook County is different from the naturalization 
 records in other large cities. It is well known, and the evidence in this case disclosed the fact, that 
 naturalization of foreign-bom persons is often carried on at night, when applicants appear in large num- 
 bers and at the suggestion and expense of political committees. The names of the applicants are writ-
 
 412 PEECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 427 
 
 ten in the body of the application blanks by the clerks of the courts either from the signature of the 
 applicants or from the pronunciation of their names by themselves. It is perfectly manifest to every- 
 one that under such circumstances many errors creep into the names as written in the body of the 
 applications and afterwards into the records. 
 
 In the affidavits filed with the protest in this case the name of Pejsar is not written, where he signs 
 the affidavit, in the same manner as it is written in the body of the affidavit, nor would it be possible 
 for the writer of this report to definitely state from his signature what his name is. The same is true 
 also of the adaffivit and name of Sedlacek. There are a number of signatures attached to the protest 
 presented to the House which it is not possible for a stranger to accurately read. 
 
 The Bohemian, Polish, and Russian names are usually not familliar to the average clerk of the 
 court. He does not quickly read the name correctly when written by the applicant in his foreign 
 handwriting. 
 
 NO PRIMA FACIE CASE MADE BY PROTESTANTS. 
 
 We are of the opinion that the protestants have not made a prima facie case against Anthony Micha- 
 lek, the sitting Member, by the evidence offered in reference to the naturalization records in Cook 
 County. We are further of the opinion that the evidence of Enoch P. Morgan does not tend to make a 
 prima facie case against Mr. Michalek. The testimony of Mr. Morgan bears upon its face so many evi- 
 dences of self-contradiction that it is to be looked at with some careful scrutiny before it is accepted as 
 correct. But, reduced to a few words, the evidence of Mr. Morgan, Mrs. Morgan, and their son is to the 
 effect that Mr. Morgan, prior to the election, believed the sitting Member ought to take out naturalization 
 papers himself, on the theory that ho could not take a seat in Congress unless he had received a naturali- 
 zation paper declaring him to be a citizen. It seems evident to us that, even if the conversations as nar- 
 rated by the Morgans took place, there was a misunderstanding of the meaning of the words "citizen " and 
 "native born." When, according to Morgan, he asked Mr. Michalek if he was a citizen, and Michalek 
 said he was bom in Bohemia, and Morgan told Michalek that he must take out his papers and become 
 a citizen and Michalek "laughed," Morgan thought Michalek must take out citizenship papers in per- 
 son before he could be elected to Congress, and Michalek thought that Morgan believed a man could not 
 be elected to Congress who was foreign bom and not native born, and that was not worth discussing. 
 
 MICHALEK IS A CITIZEN AND ELICIBLE FOR MEMBERSHIP IN THE HOUSE. 
 
 We find from the evidence in the case, however, that the sitting Member, Anthony Michalek, is and 
 has been for more years than required by the Constitution a citizen of the United States; that the 
 Michalek family came to this country in 1878; that while in this country the father was known as by 
 his Bohemian friends as Waclav or Vaclav Michalek, and by his German friends as Wenzel or Wencl 
 Michalek; that on the 29th day of October, 1884, he applied for and received his first citizenship 
 papers in the county court of Cook County under the name of Wenzl Michalek, as written in the body 
 of the declaration, or Wencl Michalek, as written in the signature; that on August 12, 1885, he made a 
 contract for the purchase of a lot in Chicago, in which contract he was described in the body of the 
 contract as Wenzel Michalek, and which contract he signed as Waclav Michalek; that on March 12, 1887, 
 he made his application for final naturalization in the superior court of Cook County, and by judgment 
 of that court became a naturalized citizen of the United States under the name of Vaclav Michal; that 
 shortly after the issuance of the naturalization papers on March 12, 1887, to Vaclav Michal, the father of 
 the sitting Member, while living on De Koven street in Chicago, voted at the Chicago city election in 
 April, 1887, and that he also voted at the fall election of 1887 while living at 79 Liberty street, to 
 which place he had meanwhile moved with his family. 
 
 The mother of the sitting Member, after the death of his father, in February, 1898, was married in 
 Chicago to a man who was presumably then a citizen. 
 
 CONCLUSION REACHED FROM PROTESTANTS* TESTIMONY. 
 
 The foregoing statements in reference to the naturalization of Anthony Michalek, the sitting 
 Member, by reason of the naturalization of his father and his mother, are based upon the testimony of 
 witnesses called in behalf of protestants.
 
 § 428 THE QUALIFICATIONS OF THE MEMBER. 413 
 
 ADDITIONAL TESTIMONY. 
 
 The chief witness for the protestants was Mr. Enoch P. Morgan. Mr. Morgan testified that during 
 the national campaign of 1904 he was in the employ of the Republican national campaign committee as a 
 speaker, and that during the campaign he had several conversations with Hon. James A. Tawney, now 
 chairman of the Committee on Appropriations of the House of Representatives, who was in charge of the 
 speakers' bureau of the Republican national committee, and that he informed Mr. Tawney that Mr. 
 Michalek was not a citizen of the United States. 
 
 Mr. Tawney has stated to the committee that no such statement was made to him by Mr. Morgan 
 and ilr. Tawney contradicts Mr. Morgan as to various other statements which Mr. Morgan claims he 
 made to Mr. Tawney. 
 
 Your committee is forced to the conclusion that Mr. Morgan in his testimony is somewhat mistaken 
 in his statement of facts. 
 
 TESTIMONY OF ANTHONY MICHALEK. THE SITTING MEMBER. 
 
 Mr. Michalek requested that he might appear before the committee and make a brief statement as 
 to his position and his claims. Mr. Michalek stated to your committee, under oath, that he was bom in 
 Bohemia ; that he came to this countrj- with his parents, Vaclav Michalek and Therese Michalek, while an 
 infant in arms; that his father died when he was 9 years of age; that he had been informed by his mother 
 and older brothers that his father had become a naturalized citizen and that he grew up in that belief, and 
 immediately upon attaining the age of 21 he registered as a voter in the city of Chicago and has since then 
 always maintained and exercised his right to register and vote; that he has believed for many years and 
 still believes himself to be a citizen of the United States by reason of the naturalization of his father. 
 
 CONCHTSIONS. 
 
 There neverwas any proper justification for the protect and charges filed against Mr. Michalek. The 
 persons making the protest did so without knowledge and without evidence. The charges were reck- 
 lessly made and untruthfully made. They were based upon false affidavits. Proof in the case offered 
 by the protestants makes out a case for the sitting Member instead of the protestants. 
 
 SITTING MEMBER NOT CALLED LTON TO ANSWER THE CHARGES. 
 
 While the committee, at the request of Mr. Michalek, permitted him to make a brief statement to the 
 committee, yet the committee has not been of the opinion that any prima facie case was made against Mr. 
 Michalek, and hence has been of the opinion that he should not be put to the trouble or expense of proving 
 by witnesses introduced in his behalf his title to citizenship. Your committee is of the opinion that 
 when charges affecting the eligibility of a Member of Congress to his seat are made, some proof should be 
 offered in their support before putting the sitting Member to the expense and the burden of making a 
 defense. 
 
 The committee accordingly reported the following resolution, which was, on 
 March 6,' agreed to by the House without division: 
 
 Resolved, That Anthony Michalek, at the time of his election as a Member of Congress from the Fifth 
 Congressional district of Illinois had attained the age of 25 years, and had then been for more than seven 
 years a citizen of the United States, and was then an inhabitant of the State of Illinois, in which he was 
 elected, and that he was elected a Member of the Fifty-ninth Congress from the Fifth Congressional dis- 
 trict of the State of Illinois, and is entitled to retain his seat therein. 
 
 428. In 1794 the Senate decided that Albert Gallatin was disquali- 
 fied, not having been a citizen nine years, although he had served in the 
 war of independence and was a resident of the country when the Consti- 
 tution was formed. 
 
 The Senate by majority vote unseated Albert Gallatin for disqualifi- 
 cation after he had taken the oath. 
 
 ' Journal, p. 600; Record, p. 3399.
 
 414 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § '429 
 
 On February 28, 1794/ the Senate, by a vote of yeas 14, nays 12, voted that 
 the election of Albert Gallatin (who had already been sworn in and was acting as 
 a Senator)^ to be a Senator of the United States was void, he not having been a 
 citizen of the United States the term of years (nine years) required as a qualification. 
 
 It appeared that Mr. Gallatin, who was born at Geneva, January 29, 1761, 
 arrived in Boston July 14, 1780. In October, 1780, he settled at Machias, Me., and 
 resided there a year, furnishing funds for and several times acting as a volimteer 
 with the troops there. In the spring of 1782 he was chosen an instructor at Har- 
 vard College, remaining there a year. In July, 1783, he removed to Pemisylvania, 
 and in November of the same year proceeded to Virginia, where he purchased 
 considerable land at two different periods. In October, 1785, he took an oath of 
 allegiance to Virginia. In December, 1785, he purchased a plantation in Pennsyl- 
 vania, where he resided up to the date of these proceedings. In October, 1789, 
 he was elected a member of the Pennsylvania constitutional convention, and in 
 October of the years 1790, 1791, and 1792 was elected member of the State legisla- 
 ture. On February 28, 1793, he was chosen Senator of the United States. 
 
 Mr. Gallatin contended that everj^ man who took part in the Revolution was a 
 citizen according to the great law of reason and nature, and when afterwards posi- 
 tive laws were made they were retrospective in regard to persons in this predicament. 
 He was one of the people who formed the Constitution, being of the body of people 
 who were citizens mutually before the Constitution was ratified. 
 
 In opposition it was denied that he was one of the mass of citizens at the time 
 of the adoption of the Constitution; and it was argued that the oath taken in 
 Virginia did not make him a citizen of that State because the Virginia law pre- 
 scribed other formalities and qualifications which Mr. Gallatin had not satisfied. In 
 Massachusetts, also, certain requi'-ements existed which he had not conformed 
 to. These provisions of the laws of Virginia and Massachusetts were cited as 
 insurmountable barriers in the way of Mr. Gallatin's occupation of the seat. 
 
 429. The Senate decided in 1849 that James Shields was disqualified 
 to retain his seat, not having been a citizen of the United States for the 
 required time. 
 
 Charges that a Senator-elect was disqualified did not avail to prevent 
 his being sworn in by virtue of his prima facie right. 
 
 A Senator was unseated for disqualification after he had been seated 
 on his prima facie right. 
 
 On March 5, 1849,^ at the special session of the Senate, Mr. James Shields, of 
 Illinois, appeared for the purpose of being qualified. 
 
 Thereupon a resolution was proposed that his credentials be referred to the 
 Committee on the Judiciary, with instructions to inquire into the eligibility of Mr. 
 Shields to a seat in the Senate. 
 
 ' First session Third Congress, Contested Elections in Congress from 1789 to 1834, p. 851. Journal 
 of Senate, pp. 18, 29, 34, 37, 39, 40. 
 
 2 Journal, pp. 3, 20. 
 
 'Second session Thirtieth Congress, Journal of the Senate, pp. 353, 357; Globe, Appendix, pp. 
 327-329.
 
 § 430 THE QCALIFICATIONS OF THE MEMBER. 415 
 
 Mr. Stephen A. Douglas, of Illinois, asked that the oath be administered to 
 Mr. Shields, leaving the question as to his qualifications to be decided later. Mr. 
 Douglas contended that ilr. Shields had a prima facie right to the seat, and that in 
 similar cases the oath had been administered, as in the case of Mr. Gallatin, of Penn- 
 sylvania, Mr. Smith of South Carolina, and ^Ir. Rich of Michigan. In a case where 
 the governor of Connecticut had appointed to a vacancy which he had no authority 
 to fill, this fact appeared on the face of the credentials, and the appointee was not 
 sworn in. But in the pending case the certificate showed the election, and Mr. 
 Shields was entitled to the seat until his qualifications were determined. 
 
 Mr. John MacP. Berrien, of Georgia, made the argument that the credentials 
 were prima facie evidence of the election, but not of the qualification. 
 
 The Senate, without division, agreed to a motion submitted by Mr. Douglas 
 that Mr. Shields be sworn in, and the oath was administered to him. 
 
 The Senate then referred to a select committee the subject of the eligibility of 
 Mr. Shields. 
 
 On March 13 ' the committee reported, and the Senate agreed on March 15, 
 after long debate, to a resolution declaring that the election of Mr. Shields "was 
 void, he not having been a citizen of the United States the term of years required as 
 a qualification to be a Senator of the United States at the commencement of the term 
 for which he was elected." 
 
 This resolution was adopted without division, it being considered evidently 
 that a majority vote only was required for the passage of the resolution. 
 
 430. In 1870 a question was raised as to the citizenship of Senator- 
 elect H. R. Revels, but he was seated, the Senate declining to postpone 
 the administration of the oath in order to investigate the case. 
 
 In reconstruction days the Senate deemed valid credentials signed by 
 a provisional military governor. 
 
 On February 23, 1870,- ^Ir. Henry Wilson, of Massachusetts, presented in the 
 Senate the credentials of H. R. Revels, Senator-elect from Mississippi. These cre- 
 dentials were signed by "Adelbert Ames, brevet major-general. United States Army, 
 provisional governor of Mississippi," attested by "James Lynch, secretary of state," 
 and under the great seal of the State. Moreover — 
 
 Mr. Wilson presented a certified extract from the proceedings of the house of representatives of the 
 State of Mississippi; also a certified extract from the proceedings of the senate and house of representatives 
 of the State of Mississippi relative to the election of H. R. Revels as a Senator in Congress. 
 
 Mr. Willard Saulsbury, of Delaware, objected that the credentials were irregular, 
 that a "provisional governor" was unknown to the Constitution, and that the inter- 
 ference of an officer in the Army showed that a republican form of government was 
 not existing in Mississippi. 
 
 It was vu-ged in support of the credential that it was otherwise proper in form 
 imder the seal of the State, and that it had been frequent when new States were 
 admitted for Senators to bear certificates technically irregular as to signature, since 
 
 ' Senate Journal, pp. 361, 365, 366; Globe, Appendix, pp. 332-351; 1 Bartlett, p. 606. 
 2 Election Cases, Senate Document No. 11, special session Fifty-eighth Congress, p. 370; second 
 session Forty-first Congress, Globe, p. 1503-1506.
 
 416 PRECEDENTS OF THE HOUSE OF REPKESENTATIVES. § 430 
 
 the certificates were frequently signed by a governor-elect, as was the case with the 
 first Nebraska credentials. 
 
 The Senate voted, without division, to receive the certificate. 
 
 Thereupon Mr. John P. Stockton, of New Jersey, offered the following: 
 
 Resolved, That the credentials of Hiram R. Revels, who is now claiming a seat in this body as a 
 Senator-elect from the State of Mississippi, be referred to the Committee on the Judiciary, who are hereby 
 requested to inquire and report whether he has been a citizen of the United States for the period of nine 
 years, and was an inhabitant of the said State at the time of his alleged election in the sense intended 
 by the third section of the first article of the Constitution of the United States, and whether Adelbert 
 Ames, brevet major-general and provisional governor of Mississippi, as appears by the credentials, was 
 the governor of the State of Mississippi at the time, and whether he was an inhabitant of the said State." 
 
 This resolution was debated long and learnedly on February 23, 24, and 25.' 
 It appeared that Mr. Revels was partially of negro descent, but was born free and a 
 native of the United States. It was asserted that he had voted in Ohio twenty 
 years before this date. It was urged, however, that the States might not natu- 
 ralize, and that under the Dred Scott decision a person of his descent could not have 
 been a citizen nine years before this date. Mr. George Vickers, of Maryland, thus 
 summarized the argument, speaking of the Dred Scott case: 
 
 What were some of the propositions of law decided by that tribunal? 
 
 1. That when the Constitution was adopted persons of African descent were not regarded in any of 
 the States as members of the community which constituted the States, and were not numbered among 
 its people or citizens; consequently the special rights and immunities guaranteed to citizens did not 
 apply to them. 
 
 2. That no State could by any subsequent law make a foreigner or any other description of persona 
 citizens of the United States. 
 
 3 . That a State might by its laws put a foreigner, or any other description of persons, upon a footing 
 with its own citizens; but that would not make him a citizen of the United States, nor entitle him to sue 
 in its courts, nor to any of the privileges and immunities of a citizen in another State. 
 
 The disqualification of the African race was as radical, fundamental, and perfect as language could 
 make it. This is by a coordinate department of the Government, existing by the same Constitution as 
 Congress; in its origin, design, and objects as thoroughly constitutional; in its powers and jurisdiction 
 superior, because State and national legislation is measured and limited by the Constitution according 
 to its judgment. Its decisions and decrees are as binding as the Constitution itself. 
 
 In opposition it was urged that Mr. Revels was bom in the United States; 
 that he never had been a slave, and did not conform to the description of negro in 
 the Dred Scott case ; that that decision was not authoritative. Mr. John Scott, of 
 Pennsylvania, said:' 
 
 The history of the litigation that had occurred in various States, and that finally got into the Supreme 
 Court of the United States in the Dred Scott case, is enough to show that a question was made as to 
 whether a colored man was or was not a citizen of the United States. The decisions in Kentucky, the 
 decisions in Connecticut, the decisions in my own State, the discussion which took place upon the 
 admission of Missouri into the Union, the Dred Scott case, the universal discussion of this question at 
 one period in our history — these are enough to show that the public mind was not settled upon the 
 question. But if it was not settled then, could it be more effectively settled than it has been, first by 
 the passage of the civil rights bill, and then, if that was not sufficient as a mere act of Congress to deter- 
 mine the status of citizenship in the face of a decision of the Supreme Court, surely it will not be con- 
 
 ■ Globe, pp. 1506-1514, 1542-1544, 1557-1568. 
 - Globe, p. 1565.
 
 § 431 THE QUALIFICATIONS OF THE MEMBER. 417 
 
 tended that the fourteenth cDnstitiitional amendment, declaring that all persons born within the United 
 States are citizens, is not sufficient to settle it. 
 
 The civil rights bill, if its text be turned to, and the fourteenth amendment, if its text be turned to, 
 will be found to be both declaratorj-. They do not enact that " from henceforth all persons bom within 
 the United States shall be citizens," but the present tense is used in both: "all persons'' "are citizens of 
 the United States." If that be sufficient to settle the question, if that be enough as a declaratory law 
 to declare that all persons born within the limits of the United States are citizens of the United States, 
 where does this man stand who now presents himself as Senator-elect from Mississippi? 
 
 It is urged by gentlemen on the other side that he became a citizen only by virtue of one or the 
 other of these enactments; but if they turn to the history of that clause of the Constitution of the United 
 States on which they rely they will find that it was inserted both in reference to Senators and to Rep- 
 resentatives in the other House of Congress, and also in reference to the President, because of the appre- 
 hension that was felt of foreign influences in our Government. In the discussion which occurred in the 
 convention — I have it here, but will not take the time of the Senate to read it — on fixing the qualifications 
 of Senators it was especially dwelt upon that the Senate being the body which was to pass upon treaties 
 with foreign governments, it was particularly necessary that the period of citizenship should be extended 
 and made longer for a Senator than for a Member of the House of Representatives. The discussion of 
 Mr. Madison in the Federalist of this clause shows that the purpose, the reason, the intention of this 
 clause in the Constitution of the United States was that persons who had been born abroad should not 
 be permitted to become Senators until after they had been citizens a certain length of time. That is 
 the reason, that is the spirit of the law; and it is a maxim which I need not quote, that the reason 
 ceasing the law ceases with it. 
 
 Here, then, is a man born in the United States, not an alien, not a foreigner, who comes here elected 
 by a State legislature. No question is raised as to his qualification as to age; no question is raised as 
 to his qualification in any other respect than as to whether he has been a citizen of the United States 
 for nine years. Now, even if the doctrine contended for by the gentlemen on the other side were true, 
 that he was not a citizen until the time of the passage of the civil rights bill or until the adoption of the 
 fourteenth constitutional amendment, still he is not within the meaning of that clause of the Constitution 
 which requires a man to be a citizen for nine years. The meaning, the spirit of that was, that no man 
 should occupy this place who had been naturalized as a foreigner until nine years had elapsed after 
 his naturalization. 
 
 On February 25 ^ the resolution of Mr. Stockton was disagreed to — yeas 8, 
 nays 48. 
 
 Then on the question of administering the oath to Mr. Revels there were yeas 
 48, nays, S. 
 
 Accordingly, he appeared and took the oath. 
 
 431. Congress has by law prescribed that the Delegates from certain 
 Territories must be citizens of the United States. — The act of May 9, 1872 
 (sec. 1906, Rev. Stat.), provided — 
 
 The Delegate to the House of Representatives from each of the Territories of Washington, Idaho, 
 and Montana must be a citizen of the United States. - 
 
 432. The Maryland case of Philip B. Key in the Tenth Congress. 
 Philip B. Key, who had inhabited a home in Maryland a brief period 
 
 before his election, but had never been a citizen of any other State, was 
 held to be qualified. 
 
 Instance wherein the question of qualification was passed on after a 
 Member-elect had been sworn in on his prima facie sho^sring. 
 
 ■ Globe, p. 1568. 
 
 -See also sections 421, 422 of this chapter. 
 5904— \0L 1— (17 27
 
 418 PRECEDENTS OF THE HOUSE OF REPBESENTATIVES. § 432 
 
 On October 26, 1807/ at the beginning of the Congress, Pliilip B. Key appeared 
 as a Representative from the State of Maryland and took the oath without ques- 
 tion. On November 4 and December 7^ memorials were presented relating to 
 Mr. Key's qualifications as a resident of his district, and as an inhabitant of Mary- 
 land,^ and on December 7* the report found that as to residence in the district 
 there was no law of Maryland requiring such residence. As to his inhabitancy in 
 the State, the committee report facts showing that Mr. Key was a native of Mary- 
 land and a citizen and resident of that State at the time of the adoption of the 
 Constitution of 1787; that he was never a citizen or resident of any other of the 
 United States; that in 1801 he removed from Maryland to his house in Georgetown, 
 about 2 miles without the boundaries of Maryland, where he continued to reside 
 until 1806, when, on September 18, he removed with his family and household to 
 a partially completed summer home (intended for himself and not for an overseer), 
 which he was building on an estate in Maryland bought by him in November, 1805, 
 and which was part of an estate owned many years by Mrs. Key's family. Here 
 he was residing October 6, 1806, the date of his election. On October 20, 1806, 
 he removed with his family and household to his house near Georgetown, which 
 he lived in until July, 1807, when they returned to the Maryland house and lived 
 in and inhabited it vmtil October 23, 1807. On that date they returned to the 
 house near Georgetown, that he might attend to his duties in Congress. It further 
 appeared that he had continued the practice of law in Maryland and had declined 
 practice in the District of Columbia; and that in January, February, and March, 
 1806, he had declared that he intended to reside in Maryland, and that he bought 
 the land with that intention. It was lu-ged and admitted that the Maryland house 
 was fitted only for a summer residence, and was much inferior to the house near 
 Georgetown; and that the latter was left practically with its furnishings complete 
 whenever the family went to Maryland. 
 
 On January 21 and 22, 1808,^ the report was discussed, but was recommitted 
 because of allegations relating to a matter not referred to in the report and not 
 related to the question of inhabitancy." 
 
 On March 17 and 18,' the report made by the committee after reexamination, 
 and which was favorable to Mr. Key, was discussed, the form of the question being 
 a resolution as follows: 
 
 Resolved, That Philip B. Key, having the greatest number of votes, and being qualified agreeably 
 to the Constitution of the United States, is entitled to his seat in this House. 
 
 A motion was made to strike out the words "having the greatest number of 
 votes, and being qualified agreeably to the Constitution of the United States," and 
 a division being demanded, the words "having the greatest number of votes, and" 
 were stricken out. 
 
 ' First session Tenth Congress, Journal, pp. 2, 6. 
 
 2 Journal, pp. 16, 68. 
 
 ^ Another feature of this case is considered in section 441 of this volume. 
 
 * Journal, p. 68; House Report No. 3; Annals, p. 1490. 
 
 ' Annals, pp. 1490, 1496. 
 
 ' See section 441 of this volume. 
 
 ' Annals, pp. 1845, 1848. 1849.
 
 § 433 THE QUALIFICATIONS OF THE MEMBER. 419 
 
 The question then recurred on striking out "being qualified agreeably to the 
 Constitution of the United States." 
 
 It is inferable, although the records of debate are scanty, that the question as 
 to whether or not Mr. Key was a pensioner of the British Government figured largely 
 in this question. The House voted — yeas 79, nays 28 — to strike the words out. 
 
 Then, on the question on agreeing to the simple amended resolution that Mr. 
 Key was entitled to his seat, a debate occurred, which, as the Annals state, " appeared 
 to be reduced to the plain fact of residence." The House finally agreed to the 
 resolution — yeas 57, nays 52. 
 
 433. The election case of John Forsyth, of Georgia, in the Eighteenth 
 Congress. 
 
 Residence abroad in the service of the Government does not constitute 
 a disqualification of a Member. 
 
 On March 3, 1824,' the Committee on Elections reported on the case of John 
 Forsyth, of Georgia, that Mr. Forsyth was elected a Member of the present Con- 
 gress during his residence near the court of Spain, as minister plenipotentiary of 
 the United States. The committee were of the opinion that there was nothing in 
 Mr. Forsyth's case which disqualified him from holding a seat in the House. The 
 capacity in which he acted excluded the idea that, by performing his duty abroad, 
 he ceased to be an inhabitant of the United States. And, if so, inasmuch as he 
 had no inhabitancy in any other part of the Union than Georgia, he must be con- 
 sidered in the same situation as before the acceptance of the appointment. 
 
 Therefore the committee asked leave to be discharged from the further consid- 
 eration of the subject. 
 
 This report was pending in Committee of the Whole at the time of the con- 
 sideration of Mr. Bailey's case, and on March 18, after the decision in that case, 
 the House discharged the Committee of the Whole from consideration of the report, 
 and laid it on the table. 
 
 Thus ilr. Forsyth was allowed to retain his seat. 
 
 434. The election case of John Bailey, elected from Massachusetts to 
 the Eighteenth Congress. 
 
 One holding an office and residing with his family for a series of 
 years in the District of Columbia exclusively was held disqualified to sit 
 as a Member from the State of his citizenship. 
 
 Discussion of meaning of word " inhabitant " and its relation to 
 citizenship. 
 
 In the earlier years of the House contested election cases were pre- 
 sented by petition. 
 
 On Februarj^ 20, 1824,^ the Committee on Elections reported on the petition 
 of Sundry Electors v. John Bailey, of Massachusetts. This case arose under section 
 2, Article I, of the Constitution of the United States, which provides "that no 
 person shall be a Representative who shall not have attained to the age of twenty- 
 five 3'ears, and been seven years a citizen of the United States, and who shall not, 
 when elected, be an inhabitant of that State in which he shall be chosen." 
 
 ' First session Eighteenth Congress, Contested Elections in Congress, from 1789 to 1834, p. 497. 
 'Ibid., p. 411.
 
 420 PRECEDENTS OP THE HOUSE OF REPJRESENTATIVES. § 484 
 
 The facts were ascertained to be as follows: On October 1, 1817, Mr. Bailey, 
 who was then a resident of Massachusetts, was appointed a clerk in the Department 
 of State. He immediately repaired to Washington and entered on the duties of 
 his position, and continued to hold the position and reside in Washington until 
 October 21, 1823, when he resigned the appointment. It did not appear that he 
 exercised any of tlie rights of citizenship in the District, and there was evidence to 
 show that he considered Massachusetts as his home and his residence in Washing- 
 ton only temporary. It was shown that Mr. Bailey had resided in Washington in 
 a public hotel, with occasional absences on visits to Massachusetts, until his mar- 
 riage in Wasliington, at which time he took up his residence with his wife's mother. 
 The election at which Mr. Bailey was chosen a Representative was held September 
 8, 1823, at which time he was actually residing in Washington in his capacity as 
 clerk in the State Department. 
 
 The conclusions of the committee was embodied in the following: 
 
 1 
 
 ,' Resolved, That John Bailey is not entitled to a seat in this House. 
 
 In support of this conclusion the committee made an elaborate report, centering 
 entirely around the meaning of the word "inhabitant." 
 
 After reviewing the circumstances attending the adoption of this clause of the 
 Constitution, the committee comment upon the fact that the word "resident" had 
 first been proposed, but had been put aside for "inhabitant," as being a "stronger 
 term, intended to express more clearly their intention that the persons to be elected 
 should be completely identified with the State in which they were to be chosen." 
 
 The word "inhabitant" comprehended a simple fact, locality of existence; 
 that of "citizen" a combination of civil privileges, some of which may be enjoyed 
 in any of the States of the Union. The word "citizen" might properly be con- 
 strued to mean a member of a political society, and although he might be absent 
 for years, and cease to be an inhabitant of its territory, his rights of citizenship 
 might not be thereby forfeited. The committee quote Vattel and Jacob's Law 
 Dictionary to show that the character of inhabitant is derived from habitation and 
 abode, and not from political privileges. The committee further fortified their 
 position by an examination of the State constitutions and the laws of the United 
 States. 
 
 The committee denied that the expressed intention of Mr. Bailey to return to 
 Massachusetts had any bearing on his status as an inhabitant. It was true that 
 ambassadors and other agents did not suffer impairment of their rights as citizens 
 by residing abroad at the government of a foreign country. That which appertained 
 to ministers of the Government residing abroad could not be supposed to attach to 
 those in subordinate employments at home. The relations which the States bore 
 to each other was very different from that which the Union bore to foreign govern- 
 ments. The several States by their own constitutions prescribed the conditions by 
 which citizens of one State should become citizens of another, and over this subject 
 the Government of the Union had no control. It would, therefore, be altogether 
 fallacious to pretend that the bare holding of an appointment under the General 
 Government, and residing for years in one of the States, should preclude the holder 
 from being a citizen and inhabitant of such State when by its constitution and laws
 
 § 434 THE QUALIFICATIONS OF THE MEMBER. 421 
 
 he was recognized as such. Therefore, as a formal renunciation of allegiance to the 
 State from which he came was not necessary' to being admitted to the rights of citizen- 
 sliip in the State to which he went, so the expression of an intention to return would 
 be of no importance. At the time of his election, and for nearty six years before, 
 Mr. Bailey was an inhabitant of the District of Columbia. It had been urged that 
 as the District belonged to the General Government, each State possessed a part, and 
 therefore a resident of the District was not out of the jurisdiction of his State. But 
 this argument would apply equally to inhabitants of all the Territories of the United 
 States, and was plainly more ingenious than conclusive. Moreover, Mr. Bailey had 
 married a wife and estabhshed a family of his ov,n\, thereby leaving his natural or 
 original domicile in his father's house. 
 
 From March 18 to 26 the report was debated at length in Conmaittee of the 
 Whole. In support of the committee's view the suggestion was made that Mr. 
 Bailey had held another Government office before and after his election to the House, 
 and therefore was ineligible. But in view of the decision in the Herrick case this 
 point was not pressed. In continuation of the reasoning of the report the point was 
 made that ^Ir. Bailey had no domestic establishment or estate in Massachusetts, 
 unless exception be made of certain books called a "library." The construction put 
 on the word "inhabitant" by the various States was not particularly pertinent, as 
 it might import a different sense in different States. The construction in the case 
 imder consideration called for common sense merely. Mr. Bailey's residence was in 
 the District. He was eligible for office there. If the District were entitled to a 
 Delegate in the House whose qualifications should be that he should be an inhabitant 
 of the District, he would certainly be eligible for that place. Therefore, he must 
 have lost his inhabitancy in Massachusetts. So far as inhabitancy was concerned 
 the District stood on the same basis as the other Territories of the United States. 
 If in this case the inliabitancy in Massachusetts could be maintained, so could all 
 the emigrants to the Territories retain inhabitancy in the Stages from wliich they 
 came. A man in one of the States appointed to an office in one of the Territories 
 would be eligible to be chosen Delegate from that Territory. Would he still retain 
 his inhabitancy in the State from wliich he came? An inhabitant of one State was 
 deprived of the right of being elected in all the other States. Was there any reason 
 why the inhabitants of the District should be more highly favored than the inhabit- 
 ants of the States? It was inevitable that in moving from State to State poUtical 
 and even personal rights must suffer modification or extinction with the changed 
 condition of law. So in moving to the District certain rights enjoyed in the States 
 were lost. If the residence of Mr. Bailee' here had been transient and not uniform; 
 had he left a dweUing house in Massachusetts in which his family resided a part of 
 the year; had he left there any of the insignia of a household establishment; there 
 would be indication that his domicile in Massachusetts had not been abandoned. It 
 had been urged that the expressed intention to return to Massachusetts should 
 govern. But the law ascertained intention in such a case by deducing from facts. 
 The danger of allowing the Executive to fumisli Members of Congress from the pubUc 
 service was discussed at length. The committee did not contend that a Member 
 must be actually residing in a State at the time of his election. Foreign ministers 
 going abroad, but from the nature of tlie case precluded fi-om becoming citizens of a
 
 422 PRECEDENTS OF THE HOUSE OF KEPRESENTATIVES. § 435 
 
 foreign power or obtaining the rights of inhabitancy, did not lose their inhabitancy 
 at home by absence. 
 
 In support of the sitting Member the arguments were urged that the expressed 
 will of the people should be set aside only for conclusive reasons ; that a liberal con- 
 struction had always been given in behalf of the rights of the people in such cases; 
 that the proceedings in the constitutional convention changing the word "resident" 
 for "inhabitant" showed that the framers of the instrument considered that a 
 person might be an inhabitant 'wathout actually being a resident. The usages of 
 Massachusetts showed that the word "inliabitant" referred to a person as a member 
 of the political community, and not as a resident. It was probable that the Con- 
 stitution meant that the meaning of the word "inhabitant" should be settled by 
 the State usage. What decision could be of more force than that of the electors 
 themselves? A person coming from a State to the District, left the direct juris- 
 diction of his State, but not its participant jurisdiction. An ambassador most cer- 
 tainly became the inhabitant of the foreign coimtry if "local existence" was the 
 test. If "locality of existence" were the test, persons on journeys would be con- 
 stantly transferring their inliabitancy. The real meaning of "inhabitant" was 
 one who had a "permanent home" or domicile in a place. The intention to return 
 constituted the pivot on which the decision must turn. A man, citizen in one 
 State, going into another to transact business, did not cease to be an inhabitant 
 in the first State. There must be an intention to permanently settle to establish 
 inhabitancy in the second State. No one denied that Mr. Bailey was a citizen of 
 Massachusetts. If a citizen he must be an inhabitant. A citizen was always an 
 inhabitant, but an inhabitant was not always a citizen. No one could be compelled 
 to renounce his native State, yet to deny Mr. Bailey liis seat wovdd be in the direction 
 of compelling liim to do it against his own will and the will of his constituents. The 
 sitting Member declared himself an inhabitant of Massachusetts, Ins constituents 
 recognized him as such, and the governor of the State, in effect, had certified 
 him as such. Mr. Bailey had left an extensive and valuable library in Massachusetts, 
 constituting the greater portion of his visible property. Why were they not sold 
 or brought to the District if he intended to settle permanently here ? If " locahty of 
 existence" were the test, the members of the House might all be ineligible, as they 
 were inhabitants of Washington. Foreign ministers did not lose their inhabitancy 
 because they never intended to settle in the foreign country. 
 
 In Committee of the Whole, a motion to strike the word "not" from the reso- 
 lution was decided in the negative by a vote of 105 to 55. 
 
 In the House the resolution of the committee was agreed to, yeas 125, nays 55. 
 
 So Mr. Bailey was declared not entitled to the seat. 
 
 435. The Virginia election case of Bayley v. Barbour, in the Forty- 
 seventh Congress. 
 
 A Member who had resided a portion of the year in the District of 
 Columbia, but who had a home in the State of his citizenship and was 
 actually living there at the time of the election, was held to be qualified. 
 
 The Elections Committee held that a contestant could have no claim 
 to a seat declared vacant because of the constitutional disqualifications 
 of the sitting Member.
 
 § 435 THE QUALIFICATIONS OF THE MEMBER. 423 
 
 A suggestion that questions relating solely to qualifications of Mem- 
 bers should be brought in by memorial rather than by proceedings in 
 contest. 
 
 On April 12, 1882,' llx. Jolm T. "Wait, of Connecticut, from the Committee of 
 Elections, submitted the report of the committee in the case of Bayley v. Barboiu-, 
 from Virginia. 
 
 As to all of the grounds of contest but one the committee found no evidence 
 to sustain them. The report says: 
 
 In disposing of these grounds of contest it is only necessary to state that there was no evidence what- 
 ever offered in support of them, and that there was no contention before the committee that they were 
 in point of fact true. Having been abandoned, it appears from the record that of the 27,441 legal votes 
 cast at said election the said Bayley, contestant, received only 9,177. This leaves for the committee's 
 consideration the sole question raised by the first ground set out in the notice of contestant, to wit: 
 
 That the said John S. Barbour, at the time of said election for such Representative, was ineligible 
 and disqualified to be the Representative of said district and State. 
 
 The said ineligibility and disqualification consists in this, that the said John S. Barbour was not at 
 the time aforesaid either a bona fide resident or inhabitant of said State of Virginia. 
 
 When the contestant abandoned the grounds of contest above set forth he at the same time relin- 
 quished all right or claim to the seat of the sitting Member, even in the event that the same should be 
 declared vacant on the ground of the constitutional ineligibility and disqualification of its occupant. 
 
 In the case as made up and presented to the committee the contestant has only that interest in it 
 that is possessed by everj' other elector in the district; yet there is no petition or memorial from any 
 body of the electors of the district addressed to Congress setting forth any objection to the right of Mr. 
 Barbour to a seat in the House to which he has been elected on the alleged ground that he is not possessed 
 of those qualifications which, by the Constitution of the United States, are indispensable to the holding 
 of a seat in Congress. 
 
 Both upon principle and precedent the committee think that those questions which relate solely 
 to the qualifications of Members of Congress should be more appropriately brought to the attention of 
 Congiess by a memorial of the electors who are alone interested in the result. This practice could 
 work no wrong, and would be productive of much good in preventing troublesome and gratuitous 
 contests which might be inspired by motives other than the interests of the electors. 
 
 The subject being one of great importance, however, they have considered it on the testimony 
 adduced, which is solely upon the question of the qualification of Barbour under the Constitution of 
 the United States. 
 
 In support of the voluntarj- contest thus made by S. P. Bayley against the eligibility of the sitting 
 Member he proceeded to take the testimony of three witnesses in the city of Alexandria, namely, 
 George Duffey, .\ugustus F. Idonsen, and John S. Barbour, the last named being the returned Member 
 himself, the object being to show that the said Barbour was not a bona fide inhabitant of the State of 
 Virginia, as required by the Constitution of the United States. Mr. Duffey was the commissioner of 
 revenue for the city of Alexandria, and Mr. Idensen was clerk to the State assessor of that city for the 
 year 1880. The contestee, Barbour, on his own behalf, took no testimony, but submitted the case upon 
 the evidence of the contestant. 
 
 Duffey testifies that it was his duty to assess all real and personal properties, incomes, licenses, etc., 
 also the annual capitation tax prescribed by law upon all male inhabitants of the State abiding in the 
 city of Alexandria over 21 years of age at the time of the assessment. 
 
 That the said Barbour had no real property in the city of Alexandria, but that the property of his 
 wife situated there was assessed to her on the property books as an Alexandrian, the law requiring the 
 residence of the owner to be given. Idensen testifies that this was changed in 1880, when Mrs. Barbour, 
 after the election, was put down as a resident of Washington, D. C, when he, as the assessor's clerk, 
 knew that John S. Barbour was an actual resident in the city, and so stated in his deposition. Mr. 
 Barbour testifies that he was a native of the State of Virginia; had always been a citizen of said State; 
 never claimed to have lived elsewhere in a permanent sense or to have exercised citizenship in any 
 
 ' First session Forty-seventh Congress, House Report No. 1040; 2 Ellsworth, p. 676.
 
 424 PRECEDENTS OF THE HOUSE OF EEPEESENTATIVES. § 435 
 
 other State or Territory; that his post-office, business headquarters, residence required by statute for 
 the service of legal process upon him, were all in the city of Alexandria, and within the limits of said 
 State, and that while he had a temporary winter residence in the city of Washington, he had taken a 
 house in Alexandria, with his family, in September, 1880, and was so actually residing at the date of 
 the Congressional election in November, 1880, and subsequently. 
 
 The Code of Virginia, ch. 166, sec. 7, which provides for the manner of sei"ving process against 
 corporations, says: 
 
 "It shall be sufficient to serve any process against or notice to a corporation on its mayor, rector, 
 president, or other chief officer, or in his absence from the county or corporation in which he resides, 
 etc., * * * and service on any person under this section shall be in the county or corporation in 
 which he resides; and the return shall show this and state on wh(jm and when the service was, otherwise 
 the service shall not be valid." 
 
 Under this statute service of process was habitually maile upon John S. Barbour, as president of the 
 Virginia Midland Railway, as a resident of Alexandria. 
 
 That in July previous to his nomination for Congress he had declined to be listed by the enumerator 
 of Washington City as an inhabitant of that city, but then stated that he was an inhabitant of Virginia. 
 
 That when traveling absent from the State of Virginia he invariably registered himself as from 
 Virginia. 
 
 That at the time of the election and before he was actually residing in Alexandria, without any 
 intention of removing therefrom permanently. It was contended on behalf of the contestant that 
 although John S. Barbour was an actual resident of the city of Alexandria, Va., within said district, at 
 and before the time of the election, he was not an inhabitant within the meaning of the constitutional 
 requirements to qualify him as a Member of Congi-ess. 
 
 In support of this view the case of John Bailey (Clark and Hall's Contested Election Cases, p. 411) 
 was relied upon. Bailey was chosen a Member of Congress from the State of Massachusetts on the 8th 
 day of September, 1823, at which time he was actually residing in the city of Washington, in the capacity 
 of clerk in the State Department. On the 1st day of October, 1817, Bailey, who was at that time a 
 resident of Massachusetts, was appointed by the Secretary of State a clerk in the Department of State 
 and immediately repaired to Washington and entered on the duties of his appointment. He continued 
 to reside in the city from that time with his family — having in the meantime married — in the capacity 
 of a clerk in the Department of State until the 21st day of October, 1823, subsequent to the date of his 
 election, at which time he resigned his appointment. Upon the petition of certain citizens and electors 
 of the Norfolk district, in the State of Massachusetts, the question of his eligibility and qualification 
 under the Constitution was brought to the attention of Congress, and it was contended on behalf of 
 Bailey that, although he had been from the time of his appointment in 1817 up to and subsequent to his 
 election to Congress a resident of Washington, he had retained his citizenship in the State of Massachu- 
 setts, and by virtue of this citizenship it was contended that within the constitutional requirement he 
 was qualified as a Member of Congress from that State. The committee considered at some length the 
 distinction between citizenship and inhabitancy, and their report, which was approved by Congress, 
 against the eligibility of Bailey as a Congressman was based upon these distinctions. It was held that, 
 being a citizen of the State, granting that Bailey was such, but residing permanently elsewhere did 
 not satisfy the constitutional requirements necessary to make him eligible as a Member of Congress. 
 The committee say that "the word 'inhabitant' comprehends a simple fact — locality of existence; that 
 'citizen' comprehends a combination of civil privileges, some of which may be enjoyed in any of the 
 States of the Union." 
 
 The case of Barbour differs materially from that of Bailey in this, that not only had Barbour con- 
 tinued to be a citizen of the State of Virginia, but that he had always held liis legal residence in said 
 State as hereinabove recited. Added to that was the fact that previous to his election as a Member 
 of Congress from the Eighth Congressional district of Virginia he had removed to said State and had 
 become an actual inhal)itant thereof, residing there without any intention of permanently removing, 
 whereas Bailey was, when elected, an actual inhabitant and resident of tlie District of Columbia, not 
 claiming a residence or inhabitancy actually in the State of Massachusetts, except constructively through 
 and by virtue of his citizenship, which he contended he had never renounced in said State. 
 
 It was contended further by the contestant in this case that the elective- franchise in Virginia was 
 one of the essentials of inhabitancy, and that under the local laws ot the State of Virginia a residence
 
 § 435 THE QUALIFICATIONS OF THE MEMBER. 425 
 
 of twelve months within the State, and a residence c.f three months next preceding the election in the 
 county, city, cr town where the person offers to vote, was a requisite qualification of an elector, and 
 that with these requisite qualifications a registration was also necessary; that John S. Barbour had 
 never registered as a voter, and therefore he was not an inhabitant within the contemplation of the 
 Constitution. 
 
 It was contended that the word ''inhabitant" embraces citizenship; that an inhabitant must be 
 entitled to all the privileges and advantages conferred by the laws of Virginia, and that the elective 
 franchise alone confers these; therefore an inhabitant must have a right to vote and, further, that the 
 burdens of inhabitancy were predicated upon the right to vote. 
 
 In answer to this position, without deeming it necessary upon the facts of this case to enter into 
 the constitutional signification of inhabitancy, it is only necessary to say that the right to vote is not 
 an essential of inhabitancy within the meaning of the Constitution, which is apparent from an inspec- 
 tion of the Constitution itself. In Article I, section 2, the electors for Members of Congress "shall 
 have the qualifications requisite for electors of the most numerous branch of the State legislature," 
 but in the succeeding section, providing for the qualifications of Members of Congress, it is provided 
 that he shall be an inhabitant of the State in which he shall be chosen. It is reasonable to conclude 
 that if the elective franchise was an essential the word "elector'^' would have been used in both sec- 
 tions, and that it is not used is conclusive that it was not so intended. 
 
 In the case of Philip Barton Key (Clark and Hall's Contested Election Cases, p. 224), who was 
 elected a Member of Congress from Maryland on the 6th day of October, 1806, and who was seated as 
 such, the facts are these: Mr. Key was an inhabitant of the District of Columbia, and in November, 
 1805, he purchased about 1,000 acres of land in Montgomery County, Md., about 14 miles from George- 
 town; that some time in the summer of 1806 he caused a dwelling house to be erected on said lands, 
 into which he removed with his family on the 18th September, 1806; that he was residing in said house, 
 which was only partially completed, from that time up to the 20th of October, 1806, when he removed 
 back with his family to his seat in the District of Columbia, where he remained till about the 28th of 
 July, 1807, when they again removed to his estate in Montgomery County, where they remained till 
 the 20th of October, 1807, when they again returned to his seat in the District of Columbia. He was 
 only living and inhabiting within his said district in Maryland for the period of little upward of a month, 
 during which time, to wit, on the 6th day of October, 1806, the election took place, at which he was 
 returned as a Representative to Congress from said district. Notwithstanding this short residence, 
 and the fact that Mr. Key, before his removal to Maryland, had been confessedly a citizen and inhabit- 
 ant of the District of Columbia, it was decided by Congress that he was eligible and qualified under 
 the Constitution as a Member of Congress. 
 
 In further answer to the position that the elective franchise is necessary to qualify one as a Mem- 
 ber of Congress, it will appear from an inspection of the constitution of Maryland of 1776, and in full 
 force in 1806, when Mr. Key was elected a Member of Congress from Maryland, that the qualifications 
 for electors for the most numerous branch of the legislature — 
 
 "Shall be freemen above twenty-one years of age, with a freehold of fifty acres of lana in the 
 county in which they offer to vote, and residing therein, and all freemen having property in this State 
 above the value of thirty pounds current money, and having resided in the county in which they 
 offer to vote one whole year next preceding the election." 
 
 Therefore, Mr. Key, who was deemed qualified as a Member of Congress, was not an elector of 
 the State of Maryland, and could not vote at the election at which he was returned as a Member. 
 
 Without resting this case, however, upon these grounds, the committee are satisfied from the facts 
 of the case, as developed in the testimony, that John S. Barbour was, in point of fact, before and at 
 the time of his election as a Member of Congress from the Eighth Congressional district of Virginia, 
 an actual inhabitant of the State, enjoying all the rights and subject to all the burdens as such, and 
 that having been duly elected as a Member of Congress from said district he is entitled to his seat. 
 
 Resolved, That John S. Barbour was duly elected and is entitled to his seat as a Member of the 
 Forty-seventh Congress from the Eighth Congressional district of the State of Virginia. 
 
 The resolutions were agreed to by the House on April 12 Avitiiout debate or 
 division.' 
 
 'Journal, p. 1031; Record, p. 2811.
 
 426 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 436 
 
 436. The Virginia election case of McDonald v. Jones, in the Fifty- 
 fourth Congress. 
 
 A contestant who had his business and a residence in the District 
 of Columbia and had no business or residence in Virginia was held 
 ineligible for a seat from that State. 
 
 The legal time for serving a notice of contest in an election case is 
 extended by the House only for good reason, and where there seems to 
 be reasonable ground for a contest. 
 
 On February 28, 1896,' the Committee on Elections No. 1 reported on the case 
 of McDonald v. Jones, from Virginia. In this case the contestant applied for leave 
 to serve notice of contest, which he had not served within the time required by the 
 statutes. The committee concluded that with reasonable diligence the notice might 
 have been served within the prescribed time. They did not, however, rest their 
 rejection of the application on this ground entirely, but reported — 
 
 (1) That they were convinced from the proofs presented at the hearing that 
 there was no substantial ground for a contest and that the same could not be main- 
 tained successfully if the notice should be authorized. 
 
 (2) It also appeared that the contestant "at the time of the election in 1894, 
 and prior to and since that time, was engaged in business and resided with his 
 family in the city of Washington, in the District of Columbia, and that he had no 
 place of business and no business or residence of any description in the State of 
 Virginia; and the committee is of opinion that he was not an inhabitant of the 
 State of Virginia at or near the time of the election for Representatives in Congress 
 in the First Congressional district of said State in 1894; and that he was not eligible 
 for said office at or near the time of the said election in the year 1894." 
 
 The House, without debate or division, agreed to the resolution of the com.- 
 mittee denying the application of the contestant. 
 
 437. The Senate considered qualified a Senator who, being a citizen 
 of the United States, had been an inhabitant of the State from which he 
 was appointed for less than a year. — On June 2, 1809,- Stanley Griswokl, ap- 
 pointed a Senator by the executive of the State of Ohio to fill the vacancy occasioned 
 by the resignation of Edward Tiffin, was qualified and took his seat. On June 9 
 his credentials were referred to the Committee on Elections, and on June 15 Mr. 
 James Hilhouse, of Coiuiecticut, chairman of that committee, submitted tliis 
 report : 
 
 That Edward TifBn, a Senator for the State of Ohio, resigned his seat since the last session of the 
 legislature of said State and during their recess; that on the 18th day of May last, and during said recesa 
 of said legislature, said Stanley Griswold was appointed by the governor of said State to fill the vacancy 
 occasioned hy the resignation aforesaid; that said Stanley Griswold, being a citizen of the United 
 States, removed into the said State of Ohio and has there resided since September last, but the term of 
 residence or other qualifications necessary to entitle a person to become an inhabitant of said State are 
 not, so far as the committee have been able to discover, defined either by the constitution or laws of 
 said State; but the executive who made the appointment having certified that said Stanley Griswold 
 is a citizen of said State, the committee submit the following resolution. 
 
 ' First session Fifty-fourth Congress, House Report No. 568; Journal, p. 254; Record, p. 2281. 
 'Election Cases, Senate Document No. 11, Fifty-eighth Congress, special session, p. 174.
 
 § 438 THE QUALIFICATIONS OF THE MEMBER. 427 
 
 And thereupon the Senate — 
 
 Resolved, That Stanley Griswold, appointed by the governor of the State of Ohio as a Senator of the 
 United States, to fill the vacancy occasioned by the resignation of Edward Tiffin, is entitled to his seat. 
 
 438. The Senate overruled its committee and held as qualified Adel- 
 bert Ames, who, when elected Senator from Mississippi, was merely sta- 
 tioned there as an army officer, but who had declared his intention of 
 making his home in that State. 
 
 Credentials unusual in form and signed by the Member-elect himself 
 as " major-general " and " provisional governor " of Mississippi, were 
 honored by the Senate. 
 
 On March IS, 1870,' Mr. Roscoe Conkling, of New York, in the Senate sub- 
 mitted the following report from the Committee on the Judiciary: 
 
 The Committee on the Judiciary, to whom were referred the credentials of Adelbert Ames, claim- 
 ing to be a Senator-elect from the State of Mississippi, report the following facts and conclusions: 
 
 Mr. Ames was bom in Maine in 1835, and resided with his parents in that State until 1856, when he 
 entered the Military Academy at West Point. From 1856 he remained in the military service of the 
 United States until he resigned his commission, which he states was after the passage, but before the 
 approval by the President, of the bill finally declaring Mississippi entitled to representation in Congress. 
 
 Until 1862 his parents continued to reside in Maine, and such articles and papers of his as would 
 naturally be kept at his home remained at his father's house. In 1862 liis parents removed to Minne- 
 sota, carrying with them the effects of their son in their possession, and in subsequent years he occasion- 
 ally revisited Maine, but owned no land and occupied no habitation there of his own. 
 
 In 1868 he was ordered to Mississippi; on the 15th of June in that year he became provisional gov- 
 ernor by appointment of General McDowell, then district commander, and in March, 1869, he became 
 himself district commander by assignment of the President of the United States. These relations 
 continued, modified, if modified at all, only as will presently appear. 
 
 The election seems to have been regular, and waiving any criticism of the form of the certificate, 
 no question has been made touching the right of Mr. Ames to take his seat, except in regard to the 
 legal character of his residence in Mississippi. 
 
 The provision of the Constitution of the United States under which the question arises is this: 
 
 "No person shall be a Senator who shall not have attained to the age of thirty years, and been 
 nine years a citizen of the United States, and who shall not, when elected, lie an inhabitant of that 
 State for which he shall be chosen. " 
 
 It will be seen that to be eligible as a Senator of the United States a person, in addition to other 
 qualifications, must he an inhabitant of the State fur which he is chosen, and he must be such an inhab- 
 itant ''when elected." 
 
 The election in this instance occurred on the 18th day of January, 1870. 
 
 At this time Mr. Ames wa.s a military officer, stationed in Mississippi by order of superior military 
 authority, and acting as provisional governor by appointment from General McDowell, as already 
 stated. His presence in these two characters comprises everything bearing upon the question of his 
 residence in Mississippi down to the time when he became a candidate for the Senate. The precise 
 date can not be fixed, but not long before the election General Ames determined to allow his name to 
 be submitted to the legislature as one of those from which the clioice of Senators might be made. 
 
 Having reached this determination, and in connection with it. General Ames declared, as far as 
 he did declare it, his intention in regard to his future residence. His language as delivered to the com- 
 mittee touching his declarations and acts is as follows: 
 
 "Upon the success of the Republican ticket in Mississippi I was repeatedly approached to become 
 a candidate for the United States Senate. For a long time I declined — I wrote letters declining. A 
 
 ' Second session Forty-first Congress, Senate Report No. 75; Election Cases, Senate Document No. 
 11, special session Fifty-eighth Congress, p. 375.
 
 428 PRECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 438 
 
 number of persons in Mississippi visited this city to find arguments l)y whicli I might he influenced to 
 become a candidate. I hesitated because it would necessitate the abandonment of my whole military 
 life. Finally, for personal and public reasons, I decided to become a candidate and leave the Army. 
 My intentions were publicly declared and sincere. (The intentions thus declared were not only to 
 become a candidate for the Senate, but to remain and reside in Mississippi.) I even made arrange- 
 ments, almost final and permanent, with a person to manage property I intended to buy. This was 
 before I left Mississippi. My resignation was accepted l)y the President before he signed the bill ti> 
 admit the State. " 
 
 The conclusion of the committee upon these facts is that General Ames was not, when elected, an 
 iuhaliitant of the State for which he was chosen, and that he is not entitled to take his seat. 
 
 The committee therefore recommend the adoption of the following resolution; 
 
 Resolved, That Adelbert Ames is not eligible to the seat in the Senate of the United States to which 
 he has been appointed. 
 
 In opening the debate in support of the resolution, on March 22/ Mr. Conkling 
 cited the definitions of "inhabitant" and the precedents of the House in the cases 
 of Jolin Bailey, Jennings Pigott,^ the British cases of Brown v. Smith and Cockrell 
 V. Cockrell. Commenting on what might be considered ambiguous language in the 
 report, Mr. Conkling said that General Ames had not been able to afFirm that it was 
 his intention to remain in Mississippi in the event that he should not be elected to 
 the Senate. In opposition, however, it was urged' by Mr. Jacob M. Howard, of 
 Michigan, that General Ames had determined irrevocably to make Mississippi his 
 home, and that this was not at all a conditional determination. Mr. Howard also 
 cited the opinion of Chief Justice Shaw as to habitancy (17 Pickering, 234): 
 
 It is often a question of great difficulty, depending upon minute and complicated circumstances, 
 leaving the (luestion in so much doubt that a slight circumstance may turn the balance. In such a 
 circumstance the mere declaration of the party, made in good faith, of his election to make the one 
 place rather than the other his home would be sufficient to turn the scale. 
 
 Against this, on March 23, was cited an opinion of Chief Justice Parker in 
 support of the argument that General Ames did not go to Mississippi of his own free 
 will, and, moreover, that he sustained no municipal relations as a citizen there, and 
 therefore that he was not an inhabitant. 
 
 The report was debated at great length on March 22, 23, and 31, and April 1,' 
 and on the latter day the motion of Mr. Charles Sumner, of Massachusetts, that the 
 word "not" be stricken out was agreed to — yeas 40, nays 12.^ 
 
 Then the resolution, as amended, was agreed to without division and Mr. Ames 
 took the oath. 
 
 A question was also raised in this case as to the credentials. Mr. Ames, as 
 "brevet major-general United States Army and provisional governor," certified to 
 Ids own election to the Senate." This point was discussed somewhat in the debate,' 
 but did not aff'ect the decision. 
 
 ' Globe, pp. 2127-2129. 
 
 -See Section 369 of this volume. 
 
 'Globe, p. 2131. 
 
 * Globe, pp. 2126-2135, 2156-2169, 2303-2316, 2335-2349. 
 
 ■^ Globe, p. 2349. 
 
 "Globe, p. 2125. 
 
 'Globe, p. 2129.
 
 § 439 THE <iUAI,IFICATIONS OF THE MEMBER. 429 
 
 439. A Senator -who, at the time of his election, was actually resid- 
 ing in the District of Columbia as an officeholder, but who voted in his 
 old home and had no intent of making the District his domicile, was held 
 to be qualified. — In 18^,' the Senate considered the case of Nathan B. Scott, 
 elected a Senator from the State of West ^''irginia for the term beginning March 4, 
 1899. Before ilr. Scott appeared to claim his seat certain memorials were presented 
 to the Senate remonstrating against the seating of Mr. Scott. At the beginning of 
 the first session of the Fifty-sixth Congress Mr. Scott was dulj' seated as a Senator 
 from the State of West Virginia, without objection at the time. Afterwards a 
 resolution was introduced in the Senate declaring that Mr. Scott was not entitled 
 to a seat in the Senate ; which was referred to the Committee on Privileges and 
 Elections, with the memorials referred to. 
 
 March 20, 1900, the committee submitted a report with an accompanying 
 resolution that Mr. Scott was entitled to a seat in the Senate as a Senator from the 
 State of West "\'irginia. A minority of the committee dissented. 
 
 The principal element of the case was as to irregularities in the West Virginia 
 legislature at the time of the election of Senator. Another objection is thus treated 
 in the majority report presented by Mr. L. E. McComas, of ilaryland: 
 
 The fifth objectioa assigned by John T. McGraw, memorialist, is that at the time of the election of 
 Mr. Scott he was a citizen but not an inhabitant of the State of West Virginia, but wa.s an inhabitant of 
 the District of Columbia. 
 
 It is admitted that Mr. Scott was bom in Ohio; that when a young man ho removed to Wheeling, in 
 West Virginia, engaged in busine^, had resided there until January 1 , 1898, when he was appointed by 
 the President Commissioner of Internal Revenue, and upon his confirmation thereafter he came to 
 Washington to discharge the duties of this Federal office, but with the intent to retain his residence, 
 citizenship, inhabitancy, and domicile in Wheeling, W. Va., his home; that in accord with this intent 
 he exercised unchallenged the right to vote and did vote on November 8, 1898, in the precinct in Wheel- 
 ing where his residence was and had remained unchanged; that he came here with no intent to change 
 his domicile to Washington from Wheeling, and that he claims to be an inhabitant of Wlieeling, W. Va., 
 and that he remained in Washington in the discharge of his official functions with intent to return to his 
 home in Wheeling when his duties of office here ended. 
 
 The mere statement of facts should suffice to show that this objectitm is unfounded. The Federal 
 Constitution requires that the Senator shall l)e an ' ' inhabitant " of the State. This term is a legal equiva- 
 lent of the term "resident," and residence is what is required by the law of West Virginia to entitle the 
 male citizens of that State to vote. 
 
 The committee, without extended discussion, were unanimously of the opinion that Mr. Scott was 
 an inhabitant of West Virginia at the time of his election to the Senate of the United States and is entitled 
 to retain his seat. 
 
 440. During the discussion of the qualifications of a Senator he pre- 
 sented his resignation; but the Senate disregarded it and proceeded to 
 declare his election void. — On March 14, 1849,' the Senate was considering the 
 eligibility of Mr. James Shields, of Illinois, to a seat in the Senate, when Mr. Shields 
 tendered a letter containing his resignation. The reading of this letter was not 
 permitted until the pending question had been postponed. Then the letter was 
 
 ' Election Cases, Senate Document No. 11, special session Fifty-eighth Congress, p. 888. 
 ^Second session Thirtieth Congress, Senate Journal, pp. 364, 365; Appendix of Globe, pp. 338, 
 342-346.
 
 430 
 
 PRECEDENTS OF THE HOUSE OF BEPBESENTATIVES. 
 
 § 440 
 
 read, and a resolution directing the Vice-President to inform the executive of the 
 State of Illinois of the resignation was offered. 
 
 On March 15 the subject was debated at length, it being urged that if the Senate 
 should inform the executive of Illinois of the resignation, that official might assume 
 that such a vacancy existed as he would have the power to fill by appointment ; also 
 that the Senate would be precluded from settling the question as to Mr. Shield's 
 qualifications. Finally the resolution directing the executive of Illinois to be 
 informed was laid on the table, yeas 33, nays 14. Then the Senate resumed the 
 subject of qualification and declared Mr. Shield's election void by reason of his not 
 having been a citizen a sufficient time.
 
 Chapter XIV* 
 THE OATH AS RELATED TO QUALIFICATIONS. 
 
 1. The question of sanity. Section 441. 
 
 2. Questions of loyalty arising before the adoption of the fourteenth amendment. 
 
 Sections 442-453.' 
 
 3. Provisions of the fourteenth amendment. Sections 455-463.- 
 
 441. The Senate investigated the sanity of a Senator-elect before 
 allowing him to take the oath. — April 30, 1844,' in the Senate, Mr. 
 Spencer Jamagan, of Tennessee, offered this resolution, just after the reading 
 of the credentials to which it refers: 
 
 Resolved, That the credentials presented to the Senate of the election of John M. Niles to be Senator 
 of the United States from the State of Connecticut be referred to a select committee, to consist of five, 
 who shall be instructed to inquire into the election, returns, and qualifications of the said John M. Niles, 
 and into his capacity at this time to take the oath prescribed by the Constitution of the United States. 
 
 After some discussion of the condition of Mr. Niles, during which it was stated 
 by a Senator that of his own personal knowledge he could assure the Senate of the 
 sanity of Mr. Xiles, the resolution was agreed to. Messrs. Jamagan; Thomas H. 
 Benton, of Missouri; John M. Berrien, of Georgia; Silas Wright, of New York; and 
 George McDuffie, of South Carolina, were appointed the committee. 
 
 On May 16 the committee reported, saying that after conversation with Mr. 
 Niles they became satisfied of his capacity to take the oath. The report concludes: 
 
 The committee are satisfied that Mr. Niles is at this time laboring under mental and physical 
 debility, but is not of unsound mind in the technical sense of that phrase; and the faculties of his mind 
 are subject to the control of his will; and there is no sufficient reason why he be not qualified and per- 
 mitted to take his seat as a member of the Senate; and they most cordially unite with Doctor Brigham 
 (whose letter constitutes a part of the report of the committee) in the hope that such a course (that is, 
 taking his seat in the Senate and participating at least two hours a day actively in its business) will be the 
 means of usefulness and a resource against disease: Therefore, 
 
 Resolved, That the Hon. John M. Niles he permitted to take the oath of a Senator in the Congress of 
 the United States, and to take his seat as a member of the Senate. 
 
 The resolution having been agreed to, Mr. Niles came forward, qualified, and 
 took his seat. 
 
 * See Volume VI, Chapter CLVII. 
 
 ' See also Blakey v. GoUaday (sec. 323 of this volume), Switzler v. Anderson (sec. 868 of Volume II), 
 and case of Roberts (sec. 478 of this volume). 
 
 ^ See cases of Sj'pher v. St. Martin (sec. 333 of this volume), Newsham v. Ryan (sec. 335 of this 
 volume), and Charles H. Porter (sec. 387 of this volume). 
 
 Senate by special act modified oath of loyalty (sec. 391 of this volume). 
 
 ' First session Twenty-eighth Congress, Journal of Senate, pp. 257, 283; Globe, pp. 592-594, 636. 
 
 431
 
 432 PRECEDENTS OF THE HOUSE OF KEPEESENTATIVES. § 442 
 
 442. The election case of Philip B. Key, of Maryland, in the Tenth 
 Congress. 
 
 A Member having been a pensionei* of a foreign government, the 
 House considered his case and declared him entitled to his seat, but 
 declined to aflB.rn) that he was qualified. — On December 11, 1807,^ Mr. William 
 Findiey, of Pennsylvania, from the Coniniittee on Elections, submitted a report on 
 the petition of certain electors in the Third Congressional district of Maryland, who 
 prayed that the seat of Mr. Philip B. Key be vacated, alleging that he had not ful- 
 filled the condition of a law of Maryland. This law, which imposed on Representa- 
 tives in Congress from that State a qualification in addition to those prescribed by 
 the Constitution, required a residence of twelve calender months in the district 
 before election, and it was alleged that Mr. Key did not fulfill this condition and 
 that he was not an inhabitant of the State. The Committee on Elections found 
 upon examination that the law had been repealed so far as Mr. Key's district was 
 concerned, and therefore recommended this resolution:^ 
 
 Resolved, That Philip B. Key, having the greatest number of votes and Ijeing qualified agreeably 
 to the Constitution of the United States, is entitled to his seat in this House. 
 
 On January 21 and 22, 1808, this report was considered in the House, and at 
 that time a statement was made that Mr. Key was, or had been, a pensioner of the 
 British Government. Debate arising on this point, Mr. Barent Gardenier, of New 
 York, contended that every person was eligible to a seat in the House unless expressly 
 disqualified by the Constitution. There being nothing in the Constitution which 
 disqualified a person from receiving a pension from a foreign government, this charge 
 should not be considered in Mr. Key's case. 
 
 The House, however, decided that the report should be recommitted for fur- 
 ther examination. 
 
 On February 24, 1808, the conunittee reported their findings of fact on the 
 charge that Mr. Key was a British pensioner. In 1778 Mr. Key had accepted a 
 commission in a provincial regiment of the British army. After the general peace 
 of 1783 the corps he served in was disbanded, and he, with the other officers, was 
 placed on half pay. In 1785 he returned to Maryland, being entitled to draw his 
 half pay. In 1794 he sold his half pay to a brother-in-law, and shortly thereafter 
 was elected to the Maryland legislature, where he served several years. Through 
 the bankruptcy and death of the brother-in-law Mr. Key, in 1805, resumed the 
 receipt of his half pay, but after taking six months' pay he ceased to draw it. In 
 January, 1806, Mr. Key directed his agent in London to resign for him all right and 
 claim to the half pay, and on October 28 or 29, 1807, sent a formal resignation of 
 it to the British minister at Washington by the hands of a notary public.^ The 
 committee did not find that Mr. Key had ever taken the oath of allegiance to the 
 King of Great Britain, but he had taken the oath required of the public servants 
 
 ' First session Tenth Congress, Journal, pp, 16. 68, 71, 114, 139, 140, 192, 232, 235; Annals, pp. 
 1490-1495, 1845, 1848, 1849; House Reports Nos. 3 and 5, First session Tenth Congress. 
 
 - For question as to inhabitancy, see section 432 of this volume. 
 
 ^ It appears from the report that Mr. Key was elected October 6, 1806, and took the oath and Iiis 
 Beat in the House on the day of organization of the Tenth Congress, October 26, 1807.
 
 & 443 THE OATH AS RELATED TO QDALIFIOATIONS. 433 
 
 of the State of Maniand. The committee conckided that there was nothing in 
 these facts to cause them to alter the conclusion wliich they had set forth in the 
 former report. 
 
 On January 21, in Committee of the Whole, on motion of Mr. Jolm Rhea, of 
 Tennessee, the words "having the greatest number of votes, and being qualified 
 agreeably to the Constitution of the United States," were stricken from the resolution. 
 A little later question was raised as to IVIr. Key's relation to the British Government, 
 and the report was recommitted. 
 
 On March 17, after the committee had again reported, the question both of 
 residence and half pay was discussed. Mr. John Rowan thought that, even were it 
 true as to the alleged receipt of half pay by ilr. Key, neither the Constitution nor 
 any law of the United States made it any disqualification. If Mr. Key had continued 
 to receive the half pay after becoming a Member, that might be cause for discussion. 
 
 On March 18 the resolution was reported from the Committee of the Whole 
 with the amendment adopted January 21. Mr. John Randolph, jr., of Virgmia, 
 demanded a division of the amendment, and accordingly the question was taken 
 first upon the words "having the greatest number of votes." The House concurred 
 in striking these out without division. The question then being taken on concurring 
 in striking out the words "and being qualified agreeably to the Constitution of the 
 United States," the yeas were 79 and the nays 28. 
 
 The question then recurred on the simple proposition declaring Mr. Key entitled 
 to his seat, and it was agreed to — yeas 57, nays 52. The final debate seems to have 
 been principally on the question of liis residence. 
 
 443. In i862, before the enactment of the test oath for loyalty, the 
 Senate, after mature consideration, declined to exclude for alleged dis- 
 loyalty Benjamin Stark, whose credentials were unimpeached. 
 
 In 1862 the Senate decided to administer the oath " without preju- 
 dice to any subsequent proceedings in the case " to a Senator-elect 
 charged with disloyalty. 
 
 A Senate committee having, on the strength of ex parte aflBdavits, 
 found Benjamin Stark disloyal, the Senate disagreed to a resolution for 
 his expulsion. 
 
 In 1862 a Senator who challenged the right of a Senator-elect to be 
 sworn substantiated his objection with ex parte aflB.davits. 
 
 An argument that a Senator-elect might be excluded for disqualifi- 
 cations other than the three specified by the Constitution. 
 
 On January 6, 1862,' in the Senate, Mr. James W. Xesmith, of Oregon, pre- 
 sented the credentials of Benjamin Stark, appointed a Senator by the governor of 
 Oregon to fill a vacancy occasioned by the death of Edward D. Baker. 
 
 Mr. William Pitt Fessenden, of Mame, moved that the oath ' be not adminis- 
 tered and that the credentials, with certain papers wliich he then offered, be 
 referred to the Committee on the Judiciary. On January 6 and 10 this motion 
 was debated at length. It was admitted by Mr. Fessenden that he considered 
 
 'Second session Thirty-seventh Congress, Globe, pp. 183, 265-269: Election Cases. Senate Docu- 
 ment No. 11, special session Fifty-eighth Congress, p. 284. 
 
 = Tlie so-called ironclad oath was not then in existence, having been approved July 2, 1862. 
 5994— VOL 1—07 28
 
 434 PKECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 443 
 
 the motion unprecedented, but he considered it justified by the papers which he 
 presented. These papers consisted of affidavits of persons in Oregon, who swore 
 that they had heard Mr. Stark make disloyal speeches. 
 
 In the debate it appeared that persons presenting credentials as Senators had 
 been denied their seats pending investigation; but that in such cases there had 
 been involved questions of law only, raised by the wording of the credentials them- 
 selves or by the Senate taking judicial loiowledge of a fact as to the session of a 
 legislature. But in this case a fact as to qualification was raised, and loyalty was 
 not one of the three enumerated quahfications. In support of the motion the 
 cases of Kensey elohns, Ambrose H. Sevier, Lanman, and Dixon were cited. 
 
 An amendment striking the word "not" from I\Ir. Fessenden's motion was 
 disagreed to — yeas 10, nays 29. Then Mr. Fessenden's motion was agreed to — 
 yeas 29, nays 11. 
 
 On February 7, 1862,' Mr. Ira Harris, of New York, submitted the report of 
 the Committee on the Judiciary, as follows: 
 
 The Committee on the Judiciary, to whom were referred the credentials of Benjamin Stark as a 
 Senator from the State of Oregon, with the accompanying papers, have had the same under consideration, 
 and, without expressing any opinion as to the effect of the papers before them upon any subsequent 
 proceedings in the case, they report the following resolution: 
 
 Resolved, That Benjamin Stark, of Oregon, appointed a Senator of that State by the governor 
 thereof, is entitled to take the constitutional oath of office. 
 
 Mr. Lyman Trumbull, of lUinois, dissented from the conclusions of the com- 
 mittee, and submitted the following views: 
 
 A preliminary question was raised in the Senate when this case was referred to the committee, 
 whether it was competent for the Senate for any cause to refuse to allow a person to be sworn as a Mem- 
 ber of the Senate whose credentials were in proper form, and who possessed all the qualifications as 
 to age, citizenship, and inhabitancy prescribed by the Constitution, and whether the only remedy 
 which the Senate had to protect itself against the presence of an infamous person, a convicted felon, 
 or an avowed and open traitor, was not by expulsion by a two-thirds vote after he should have been 
 sworn into office. The Senate decided, after debate, to refer the credentials of Mr. Stark, with the 
 accompanying papers, consisting of written statements and affidavits impeaching his loyalty, to the 
 committee without allowing him to be sworn. A majority of the committee now report the case back, 
 with a resolution that Mr. Stark is entitled to take the constitutional oath, expressly stating that they 
 do so "without expressing any opinion as to the effect of the papers before them upon any subsequent 
 proceedings in the case." 
 
 This reservation of opinion on the evidence could only have become necessary on the supposition 
 that some subsequent proceedings might be taken in the case, referring doubtless to a motion to expel 
 the Senator after he should have been admitted a Member, for the reasons assigned in the accompany- 
 ing papers, in effect establishing the principle that evidence of disloyalty, which might be sufficient 
 to expel a Member when admitted, was not sufficient to prevent his qualifying as a Member. To this 
 principle the undersigned can not agree. He believes it was the duty of the committee to examine 
 and pass upon the evidence before it, and if found insufficient to prevent Mr. Stark from taking the 
 constitutional oath, that it would also be insufficient to warrant his expulsion after he was admitted. 
 
 It is admitted that neither the Senate, Congress, nor a State can superadd other qualifications for 
 a Senator to those prescribed by the Constitution, and yet either may prevent a person possessing all 
 those qualifications, and duly elected, from taking his seat in the Senate. Does anyone question the 
 right of a State to arrest for crime a person duly qualified for and appointed a Senator, hold him in 
 confinement, and thereby prevent his appearing in the Senate to qualify? Suppose a Senator, after 
 his appointment, and before qualifying, to commit the crime of murder. Would anyone question the 
 
 1 Senate Report No. 11; Globe, p. 696.
 
 § 443 THE OATH A3 BELATED TO QUALIFICATIONS. 435 
 
 right of the State authorities where the crime was committed to arrest, confine, and, if found guilty, 
 execute the murderer, and thereby forever prevent his taking his seat? Or, if the punishment for 
 the offense was imprisonment, would anyone question the right to hold the Senator in prison, and 
 thereby prevent his appearing in the Senate? 
 
 Could the Senate in such a case expel him before he had been admitted to a seat? Or must he 
 [be] brought from the felon's cell, be introduced into the Senate, and sworn as a Member before his 
 seat could be declared vacant? If not, must the State go unrepresented till the time for which he was 
 appointed has expired? Or would it be competent for the Senate in such a case, by a majority vote, 
 to declare the convict incompetent to hold a seat in the body, and thereby open the way for the appoint- 
 ment of a successor? It is manifest that the prescribing of the qualifications for a Senator in the Con- 
 stitution was not intended to prevent his being held amenable for his crimes. The fact that the Con- 
 stitution declares that Senators and Representatives "shall in all cases, except treason, felony, and 
 breach of the peace, be privileged from arrest during their attendance at the sessions of their respective 
 houses, and in going to and returning from the same," is conclusive that for those offenses they may 
 be arrested. As a punishment for crime, then, it is clear that a Senator-elect, possessing all the con- 
 stitutional qualifications of age, citizenship, and inhabitancy, may be prevented from taking the oath 
 of office. Congress has repeatedly acted upon the presumption that it was entirely competent for it 
 to prescribe, as a punishment for crime, an inability forever afterwards to hold any office of honor, 
 profit, or trust under the United States. 
 
 By a statute passed in 1790, any person giving a reward to a United States judge as a bribe to pro- 
 cure from him any opinion or judgment, and the judge receiving such bribe, are both declared to be 
 forever disqualified to hold any office of honor, trust, or profit under the United States. By an act 
 passed in 1853, any Member of Congress after his election, and whether before or after he is qualified, 
 who shall accept any reward given for the purpose of influencing his vote on any question which may 
 come before him in his official capacity is declared incapable forever of holding any office of honor, 
 trust, or profit under the United States. Similar laws, it is believed, exist in most of the States, pre- 
 scribing as part of the punishment for particular offenses, such as dueling, bribery, and some others, a 
 disqualification for holding any office under the State, and this notwithstanding the State constitutions 
 may have prescribed the qualifications for members of their legislatures, of which the disqualification 
 arising from the conviction for crime was not one. The power of Congress to prescribe the punishment 
 for treason is expressly given by the Constitution, except that it can not be made to work corruption 
 of blood or forfeiture beyond the life of the person attainted. Does anyone doubt the power of Congress 
 under this clause of the Constitution to declare that a person convicted of treason should forever be 
 incapable of holding any office under the United States? If this were done, would it be pretended 
 that a convicted traitor was entitled to be sworn as a Senator? The clause of the Constitution prescribing 
 the qualifications of Senators and Representatives could never have been intended to limit the power 
 to make disqualification to hold those or any other offices a penalty for the commission of crime, especially 
 treason. Its design, doubtless, was to produce uniformity of qualification in all the States, and to 
 prevent any particular class of persons, such as ministers of the gospel, or others, from being excluded 
 from these positions. If it be competent for Congress to make disqualification to hold office a punish- 
 ment for an offense against the United States, then it is clearly competent for the Senate, which, by 
 the Constitution, is made "the judge of the elections, returns, and qualifications of its own members," 
 to do the same thing, so far as the right to take a seat in that body is concerned. Doubtless a law of 
 Congress declaring that a person convicted of a particular offense should not hold office under the United 
 States, and the decision of the courts sustaining such a law, would not preclude the Senate from admit- 
 ting such a person to a seat, should it think proper, because the Senate is the exclusive judge of the 
 elections, returns, and qualifications of its own Members; yet it is hardly conceivable that the Senate 
 ever would admit such a person to be sworn; nor does the fact that Congress has not adopted such a 
 punishment for disloyalty or treason prevent the Senate from refusing to allow to be sworn as a Member 
 a person believed by the body to be guilty of those offenses or other infamous crimes. 
 
 That one avowed traitor, a convicted felon, or a person known to be disloyal to the Government 
 has a constitutional right to be admitted into the body would imply that the Senate had no power of 
 protecting itself — a power which, from the nature of things, must be inherent in every legislative body. 
 Suppose a Member sent to the Senate, before being sworn, were to disturb the body and by violence 
 interrupt its proceedings, would the Senate be compelled to allow such a person to be sworn as a Member
 
 436 
 
 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 §443 
 
 of the body before it could cast him out? Surely not, unless the Senate is unable to protect itself and 
 preserve its own order. The Constitution declares that "each House may determine the rules of its 
 proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds, expel 
 a Member." The connection of the sentence in which the power of expulsion is given would indicate 
 that it was intended to be exercised for some act done as a Member, and not for some cause existing 
 before the Member was elected or took his seat. For any crime or infamous act done before that time 
 the appropriate remedy would seem to be to refuse to allow him to qualify, which, in the judgment 
 of the undersigned, the Senate may properly do; not by way of adding to the qualifications imposed 
 by the Constitution, but as a punishment due to his crimes or the infamy of his character. Hence 
 the undersigned, conceiving that it was the duty of the committee to have expressed its opinion on the 
 evidence of disloyalty before it and to have reported in favor of or against the swearing in of the Senator 
 as the evidence should warrant, and not allow him to be first sworn, and leave the question of his loyalty 
 to be subsequently determined on a motion to expel, the undersigned forbears to review the evidence 
 of disloyalty before the committee or to express any opinion upon it till the pending question of juris- 
 diction to consider it is determined. 
 
 The report was debated long and learnedly on February 18, 24, 26, and 27.' 
 Mr. Harris, in opening the debate,^ gave the reasons for the conclusion which 
 he had submitted from the committee. 
 
 The question submitted to the committee was, whether or not evidence of this description (certain 
 ex parte affidavits alleging treasonable declarations) could be allowed to prevail against his prima facie 
 right to take his seat as a Senator. The committee were of opinion that they could not. The Consti- 
 tution declares what shall be the qualifications of a Senator. They are in respect to his age, in respect 
 to his residence, in respect to his citizenship; and the committee were of opinion that the Senate were 
 limited to the question, first, whether or not the person claiming the seat and presenting his credentials 
 produced the requisite evidence of his election or appointment; and second, whether there was any 
 question as to his constitutional qualifications. * * * I do not understand that it is competent for 
 the Senate, and I think they step aside from their only jurisdiction when they attempt to punish a 
 man for his crime or misbehavior antecedent to his election. If this were so, the Constitution ought to 
 be amended so as to read that the legislature of a State or the governor of a State, in a certain contin- 
 gency, shall elect or appoint a Senator, subject to the advice and consent of the Senate. The Senate 
 would then be the ultimate judge whether or not the man ought to have a seat here, and it would be 
 competent for the Senate upon any caprice or any view it might take of the capacity, moral, or intel- 
 lectual, or political, of a man, to reject him and prevent his taking a seat. Sir, I do not so understand 
 the Constitution. I understand the Senate is the judge of the election of a Senator, of the sufficiency 
 and genuineness of the returns furnished, and the evidence of the election; and also of the constitu- 
 tional qualifications of the individual to hold a seat in the Senate. Beyond that I apprehend the Senate 
 have no power at all. 
 
 On the other hand, it was urged by Mr. Charles Sumner, of Massachusetts,^ 
 that the Constitution required the oath to support the Constitution, and that thi.s 
 was in effect another constitutional qualification as to loyalty. 
 
 This contention was combatted, especially by Messrs. Timothy O. Howe, of 
 Wisconsin, and John Sherman, of Ohio,* who contended that the clause of the Consti- 
 tution requiring the oath did not, in effect, impose a fourth qualification. 
 
 It was urged by Mr. James R. Doolittle, of Wisconsin: ^ 
 
 The power given to a majority to pass upon his qualifications implies the power to pass upon his 
 disqualifications also, and that they may refuse to admit to a seat one who is disqualified as an avowed 
 traitor. I am more inclined to that opinion because, after the question of his right to a seat upon this 
 
 'Globe, pp. 861, 92.5, 963, 988-994. 
 
 =i Globe, p. 861. 
 
 3 Globe, pp. 869, 969. 
 
 * Globe, p. 927, 969. 
 'Globe, pp. 926.
 
 § 443 THE OATH AS RELATED TO QUALIFICATIONS. 437 
 
 ground is distinctly raised and passed upon by the Senate, it may become res adjudicata, which can not be 
 reopened. While I think this power is in a majority, it is in its nature judicial; and in its exercise, 
 whether by a majority or two-thirds, this body should proceed with the same deliberation and the same 
 freedom from all party bias as if sitting as a court . 
 
 In opposition Mr. Howe argued/ after enumerating the qualifications of the 
 Constitution: 
 
 \Miat other qualifications the Senator should have are to be determined first by the constituent body 
 when they elect; and from their decision there is, in my judgment, no appeal, except to two-thirds of 
 the Senate upon a motion to expel. 
 
 It was further urged by Mr. Sherman - that the power to expel was unlimited, 
 and he cited English cases to show that it might be applied to ofTenses committed 
 before election. 
 
 On February 27^ the question was taken first on the amendment proposed by 
 Mr. Sumner to the resolution, viz: 
 
 Strike out the words " is entitled to take the constitutional oath of office " and in lieu thereof insert 
 "and now charged with disloyalty by the affidavits of many citizens of Oregon, and also by a letter 
 addressed to the Secretary of State and signed jointly by many citizens of Oregon, some of whom hold 
 public trusts under the United States, is not entitled to take the constitutional oath of office without a 
 previous investigation into the truth of the charge." 
 
 This amendment was disagreed to — yeas 18, nays 26. 
 
 Thereupon Mr. Doolittle moved that the resolution be amended by adding 
 thereto the words — 
 
 without prejudice to any subsequent proceedings in the case. 
 
 It was explained that this was proposed so that the Senate might not be pre- 
 cluded from passing on the question of expulsion. In opposition it was urged that 
 the Senate could not be so precluded, but the amendment was agreed to, there being, 
 on division, ayes 24, noes 16. 
 
 On the question to agree to the resolution as amended, as follows: 
 
 Resolved, That Benjamin Stark, of Oregon, appointed a Senator of that State by the governor thereof, 
 is entitled to take the constitutional oath of office without prejudice to any subsequent proceedings in 
 the case. 
 
 It was determined in the affirmative — yeas 26, nays 19.* 
 
 iir. Stark then took the oath. 
 
 On February 28' Mr. Stark offered this resolution: 
 
 Resolved, That the papers relating to the loyalty of Benjamin Stark, a Senator from Oregon, be with- 
 drawn from the files of the Senate and referred to the Committee on the Judiciary, with instructions to 
 investigate the charges preferred against said Stark on all evidence which has been or may be presented, 
 and with power to send for persons and papers. 
 
 This resolution was debated at length on Februarj^ 28 and March the 18,^ 
 disciission relating largely to the effect of the decision to admit Mr. Stark, and the 
 propriety of further action in view of that vote. Some of those Senators who had 
 voted to exclude argued that it was now rather late to propose to purge the Senate 
 
 ' Globe, p. 927. "Globe, p. 994. 
 
 2 Globe, p. 970. « Globe, p. 1011. 
 
 ^ Globe, p. 993. » Globe, pp. 1011-1014,1261-1266.
 
 438 PRECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 443 
 
 of an alleged unworthy Member, and that he should have been excluded at the 
 outset. 
 
 Finally, after amending the resolution by substituting a select committee for 
 the Judiciary Committee, the resolution was agreed to — yeas, 37; nays, 3. 
 
 On April 22, Mr. Daniel Clark, of New Hampshire, chairman of the select com- 
 mittee, submitted a report.' This report states that it was not thought practicable, 
 because of the remoteness of Oregon, to take any further testimony, and says : 
 
 The committee met on the 24th of March, and the Senator from Oregon attended the meeting in 
 compliance with the invitation of the committee, and desired that the committee should examine the 
 papers before them, and if they should come to the conclusion that grounds were furnished for the charge 
 of disloyalty by the papers and testimony, that the committee should draw up specific charges, to which 
 he would fde his answer. This the committee declined to do, for the reason that they did not wish to 
 become his prosecutors, and were charged by the Senate with investigation and not accusation. 
 
 Mr. Stark was informed that the committee did not propose to take any further testimony unless he 
 desired it, but would investigate the charges as presented by the papers then before them. To which the 
 committee understood Mr. Stark to reply that he did not wish to take any further testimony as the matter 
 stood. It was then suggested by the committee to the Senator from Oregon that he should submit to the 
 committee his answer in writing to the allegations and evidence then before the committee, with any 
 further evidence he might wish to present, and that the committee would adjourn to afford him the 
 necessary time for that purpose. 
 
 The report next quotes the letter of Mr. Stark, a portion of which is as follows: 
 
 If the committee propose to confine their investigation exclusively to those statements and ex parte 
 affidavits now before them, in connection with what I may submit for their consideration, it may not be 
 inappropriate for me to express my opinions in regard to them, and I shall do so in the same spirit by 
 which the committee appear to have been actuated in making the request. 
 
 As it could not be fairly supposed that I would permit myself to occupy the attitude of self -prosecutor 
 or that I would assume the task of defending myself when no charge on prima facie evidence had been 
 preferred against me, I trust that I may do so without derogating from the true position which my honor 
 and self-respect demand that I should occupy. 
 
 With all due deference, therefore, I submit that as a Senator of the United States for the State of 
 Oregon I am entitled to, and I claim, every presumption of honor, integrity, loyalty, and patriotism that 
 can be claimed by any other Senator until such presumption is overborne by competent testimony. It 
 certainly would be very extraordinary to put an honorable Senator upon trial for expulsion without 
 charges and specifications made with reasonable (if not technical) precision, and supported by testimony 
 subjected to all the tests which human wisdom and human experience have found to be essential for the 
 ascertainment of truth. Should such a case ever arise it is reasonable to suppose that it would not he 
 permitted long to interrupt the order or disturb the decorum of the American Senate. Unless the pro- 
 ceedings of your committee are to be regarded as a preliminary inquiry, whether or not.charges for expul- 
 sion ought to be preferred against me, in what essential particular does this case differ from the one 
 suggested? 
 
 The papers referred to you I have again examined with that earnest attention which a deep personal 
 interest in the result of an inquiry must ever stimulate, and with the light reflected upon them by the 
 communication which I had the honor to address to the Conunittee on the Judiciary under date of Jan- 
 uary 17 ultimo, I am unable to discover anything upon which a sufficient charge for expulsion can be 
 predicated, or anything in the nature of evidence which an impartial tribunal could receive as sufficient 
 to justify expulsion from the Senate. Accepting all the statements contained in the letters, affidavits, 
 etc., to be true, and there is merely attributed to me opinions which in the field of politics might be 
 regarded as heresies, and expressions charged upon me which might be characterized as idle, mischiev- 
 ous, and unwise. This suggestion, I need not remind the committee, is not made as palliative upon an 
 admission by me of the truth of any part of these statements, but purely asiargumentative and as properly 
 
 ' Senate Report No. 38, second session Thirty-seventh Congress.
 
 § 443 THE OATH AS RELATED TO QUALIFICATIONS. 439 
 
 within the scope of my purpose in addressing to them this communication. Guided by this purpose, I 
 have in these reflections excluded any denial or admission of anything contained in the papers before the 
 committee, my chief design being accomplished if I shall have succeeded in showing the utter impossi- 
 bility of making, or even entering upon, a defense of any specific charge or of proffering to rebut evidence 
 when none is presented. 
 
 I can not conclude this brief statement without asserting, as in substance I did in my communication 
 to the Judiciary Committee, that the declarations of my assailants are utterly false in many particulars 
 which might be deemed important, especially the statements of Hull and Law; that the expressions 
 attributed to me in others of the affidavits have been wickedly and maliciously perverted, and that in 
 every respect their declarations are unju.st to my real sentiments and at variance with the whole tenor 
 of my life. 
 
 The committee, after giving Mr. Stark opportunity to present further testimony, 
 and after he had failed to do so, reached conclusions which they state as follows: 
 
 The committee then proceeded to consider the allegations and charges contained in the papers 
 which had been submitted to them by the Senate, in connection with his answer and statement, and 
 upon mature deliberation do find the following conclusions from the facts proved, viz: 
 
 First. That for many months prior to the 21st of November, 1861, and up to that time, the said 
 Stark was an ardent advocate of the cause of the rebellious States. 
 
 Second. That after the formation of the constitution of the Confederate States he openly declared 
 his admiration for it and advocated the absorption of the loyal States of the Union into the Southern 
 Confederacy under that constitution as the only means of peace, warmly avowing his sympathies with 
 the South. 
 
 Third. That the Senator from Oregon is disloyal to the Government of the United States. 
 
 Tlie report gives extracts from the evidence and argument to show the reasons 
 for these conclusions. In support of the third conclusion they cited utterances of 
 Mr. Stark's — 
 
 calculated to encourage the rebellion and discourage the efforts to suppress it. 
 
 The report was signed by the chairman and by Messrs. J. M. Howard, of Michi- 
 gan, Joseph A. Wright, of Indiana, and John Sherman, of Ohio. 
 Mr. W. J. Willey, of Virginia, did not entirely concur: 
 
 Concurring in the first two conclusions of the majority of the committee, I am yet constrained, 
 not without hesitation, to differ with them in their third and last conclusion. Distrusting all ex parte 
 testimony, especially in regard to expressions uttered in the heat of high political excitement, seeing 
 that the sentiments and opinions thus attributed to Mr. Stark are virtually denied and repudiated by 
 him in his written statement before the committee ; remembering that since it is alleged those conver- 
 sations took place and those expressions were uttered Mr. Stark, in taking his seat as a Senator, has 
 purged himself of these sinister allegations by taking the oath to support the Constitution of the United 
 States, and especially fearing the danger of making mere difference of opinion, however wide and fun- 
 damental, a test of fidelity to the Government, I am not prepared to say that Mr. Stark is now disloyal. 
 
 On May 7 ' Mr. Sumner submitted the following resolution for consideration: 
 
 Resolved, That Benjamin Stark, a Senator from Oregon, who has been found by a committee of this 
 body to be disloyal to the Government of the United States, be, and the same is hereby, expelled from 
 the Senate. 
 
 It was stated at this time by Mr. Sherman, who signed the report, that only a 
 small portion of the session remained, and that the people of Oregon would very 
 
 ' Globe, p. 1983.
 
 440 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 444 
 
 soon have the opportunity of passing on the question of Mr. Stark's loyalty. There- 
 fore he did not favor the presentation of a resolution of expulsion. 
 
 On Jime 5 and 6/ however, Mr. Sumner pressed the question to the attention 
 of the Senate, and on the latter day, almost without debate, the question was 
 taken on agreeing to the resolution, and it was disagreed to — yeas 16, nays 21. 
 
 444. A question being raised as to the loyalty of a Member-elect, 
 the House has exercised its discretion about permitting him to take the 
 oath at once. — On Xovember 21, 18G7,- the Members-elect from the State of 
 Teimessee appeared to take the oath, when Mr. James Brooks, of New York, chal- 
 lenged Mr. Wilham B. Stokes, alleging that he had been disloyal during the war, 
 and presenting in support thereof a letter alleged to have been written by Mr. 
 Stokes in 1861, announcing an intention to resist the Federal Government. 
 
 On the same day Mr. James Mullins was challenged on the charge of disloyalty, 
 in support of which a letter written by an army officer, but not verified by oath, 
 was read, charging Mr. Mullins with disloyal utterances in 1861. 
 
 In the debate it was argued that in these two cases the charge was not made 
 on the responsibility of a Member, supported by affidavits, as in the Kentucky 
 cases; that the gentlemen in question were known to have acted loj^ally during 
 the war, and that the evidence shown against them was not sufficient to preclude 
 their taking the test oath with the approval of their own consciences. 
 
 Resolution to refer the credentials and deny the oath to the two Members- 
 elect were disagreed to by the House, and they were sworn. 
 
 445. On Xovember 21. 1867,= the Members-elect from the State of Ten- 
 nessee appeared to take the oath, the House being already organized. Thereupon 
 Mr. James Brooks, of New York, challenged the right of Mr. R. R. Butler to be sworn 
 on the ground that he had been disloyal to the Government, presenting in support 
 of the charge the journal of the legislature of the State of Tennessee at the time of 
 the secession acts. 
 
 After debate the House agreed to the following resolution: 
 
 Resolved, That the credentials of R. R. Butler, from the First district of Teimessee, be referred to 
 the Committee of Elections, and that he be not sworn pending the investigation. 
 
 446. On January 31, 1870,^ Mr. John A. Bingham, of Ohio, presented the 
 
 following: 
 
 Resolved, That the Hon. Lewis McKenzie be now sworn in as Member of this House from the Seventh 
 district of Virginia, he having the prima facie right thereto; but without prejudice to the claim of Charles 
 Whittlesey, contestant to such seat, or to his right to. prosecute his claim thereto. 
 
 It appeared from the debate that the credentials of Mr. McKenzie were in proper 
 form, but that the Committee of Elections felt themselves botmd by the resolution 
 of the House directing them, whenever a contestant should allege that his opponent 
 could not take the oath of loyalty, to inquire mto the prima facie right, and report 
 
 ' Globe, pp. 2569, 2571, 2572, 2596. 
 
 2 First session Fortieth Congress, Journal, pp. 253, 254; Globe, pp. 768-778. 
 
 3 First session Fortieth Congress, Journal, p. 253; Globe, p. 768. At this time the law providing 
 for the test oath was in force. 
 
 ■•Second session Forty-first Congress, Journal, p. 239; Globe, p. 917.
 
 § 447 THK OATH AS RELATED TO QUALIFICATIONS. 441 
 
 their finding. Such an inquirj^ had been begun in this case, but the report would 
 not be made up for some time. Under these circumstances, and because several 
 Members vouched for the loyalty of ilr. McKenzie, the House decided to permit 
 him to take the oath, agreeing to the resolution. 
 
 447. The House decided that the oath should be administered to a 
 Member-elect, although a Member charged that he was personally dis- 
 qualified. — On March 4, 1871,^ while the Speaker was administering the oath 
 to the Members-elect at the time of the organization of the House, the name of 
 Mr. Alfred M. Waddell, of North Carolina, was called, whereupon ]\lr. Horace May- 
 nard, upon liis authority as a Member of the House, objected to the swearing in of 
 Mr. Waddell, on the ground that he was personally disqualified. 
 
 Mr. Waddell stood aside ; and after the organization of the House had been com- 
 pleted, Mr. Maynard stated that the disqualification wliich he charged existed under 
 the third article of the fourteenth amendment of the Constitution. Before the war 
 Ml-. Waddell had held the office of clerk and master of chancer^' in North Carolina, 
 an ofiice which required him to take an oath to support the Constitution of the 
 United States. After that he had served as an officer in the Confederate arm3^ 
 The supreme court of North Carolina had determined that the office of clerk and 
 master of chancery was a judicial office. 
 
 Mr. Wilham D. Kelley, of Pennsylvania, contended that the office in question 
 was not judicial in character, and that the House was not bound by the decision of 
 the North Carolina court, for they were the judges of the quahfications of their own 
 Members. He then read the law of North Carolina defining the duties of the office 
 to show to the House that they were not judicial in character. 
 
 Then, on motion of Mr. Kelley, the oath was administered to Mr. Waddell. 
 
 Then, on motion of Mr. Maynard, his credentials were referred to the Committee 
 on Elections. 
 
 448. The election case of the Kentucky Members in the Fortieth 
 Congress. 
 
 Before the adoption of the fourteenth amendment, and in a time of 
 civil disorders, the House denied the oath to Members-elect who pre- 
 sented themselves with credentials in due form but whose loyalty was 
 questioned; and the credentials were referred to a committee. 
 
 In 1867 it was held that no man duly elected should be excluded for 
 disloyalty unless it could be clearly proven that he had been guilty of 
 such open acts of disloyalty that he could not honestly and truly take the 
 oath of July 2, 1862. 
 
 Before the adoption of the fourteenth amendment, and in a time of 
 civil disorders, a committee reported and the House sustained the view 
 that no person who had been disloyal should be sworn. 
 
 In 1867 the Elections Committee took the view that charges of the 
 disloyalty of a constituency should not prevent a person holding a 
 regular certificate from taking a seat on his prima facie right. 
 
 ' First session Forty-second Congress, Journal, pp. 9, 13; Globe, pp. 6, 11, 12.
 
 442 PRECEDENTS OF THE HOUSE OF EEPKESENTATIVES. § 448 
 
 In 1867 Members who challenged the right of a Member-elect to 
 take the oath did so, one on his responsibility as a Member and the 
 other on the strength of aflidavits. 
 
 On July 3, 1867,' the Congress having assembled from a recess caused by a 
 temporary adjournment, the Clerk called the names of 8 gentlemen returned as 
 Members-elect from the State of Kentucky, with credentials in due form. 
 
 Thereupon Mr. Kobert C. Schenck, of Ohio, challenged the right of one of them, 
 Mr. Jolm D. Young, to take the oath on the ground that he had given aid and 
 comfort to the enenues of the Government. Mr. Schenck produced affidavits in 
 support of this charge. Mr. John A. Logan, of Illinois, also presented affidavits 
 charging Mr. L. S. Trimble, another of the Members-elect from Kentucky, with 
 disloyalty. Mr. Jolm F. Benjamin, of Missouri, on his responsibility as a Member, 
 challenged the loyalty of a third, Mr. J. Proctor Knott. In the course of the debate 
 the fact was developed that only one of the 8, Mr. George M. Adams, was free from 
 the objections which were being urged. 
 
 After debate the House — yeas 67, noes 50 — agreed to the following: 
 
 Whereas it is alleged that ia the election recently held in the State of Kentucky for Representa- 
 tives in the Fortieth Congress the legal and loyal voters in the several districts in said State have been 
 overawed and prevented from a true expression of their will and choice at the polls by those who have 
 sympathized with or actually participated in the late rebellion, and that such elections were carried 
 by the votes of such disloyal and returned rebels; and whereas it is alleged that several of the Repre- 
 sentatives-elect from that State are disloyal: Therefore be it 
 
 Resolved, That the credentials of L. S. Trimble, John Young Brown, J. Proctor Knott, A. P. Grover, 
 Thomas L. Jones, James B. Beck, and John D. Young, Members-elect from the State of Kentucky, 
 shall be referred to the Committee of Elections for report at as early a day as practicable. 
 
 On July 5 ^ a proposition that the oath be administered to Messrs. Beck and 
 Grover, against whom the charges of disloyalty were less specific, led to a discus- 
 sion of the grounds for refusing the oath to a person presenting a certificate in due 
 form. Members asserting that such action was justifiable in a case of alleged per- 
 sonal disqualification. The proposition was referred to the Committee of Elections. 
 
 On July 8^ the Committee on Elections reported, through Mr. Henry L. Dawes, 
 of Massachusetts, reciting the allegations that had been made, and concluding: 
 
 The committee are of opinion that no person who has been engaged in armed hostility to the Gov- 
 ernment of the United States, or who has given aid and comfort to its enemies during the late rebellion, 
 ought to be permitted to be sworn as a Member of this House, and that any specific and apparently 
 well-grounded charge of personal disloyalty made against a person claiming a scat as a Member of this 
 House ought to be investigated and reported upon before such person is permitted to take the seat; but 
 all charges touching the disloyalty of a constituency in a State in whicli loyal civil government was not 
 overthrown during the late rebellion, or the illegality of an election, are matters which pertain to a con- 
 test in the ordinary way, and should not prevent a person holding a regular certificate from taking his 
 seat. 
 
 In view of this report the House agreed to a resolution giving the committee 
 
 'First session Fortieth Congress, Journal, p. 161; Globe, pp. 468^79. 
 = Globe, pp. 501-503; Journal, p. 165. 
 
 Journal, pp. 170, 171; Globe, pp. 513-515. Report No. 6; 2 Bartlett, p. 327; Rowell's Digest, 
 p. 218.
 
 § 448 THE OATH AS RELATED TO QUALIEICATION8. 443 
 
 the authority necessary to inquire whether any or either of the seven persons were 
 disquahfied 
 
 from sitting as Members of this House on account of their having been guilty of acts of disloyalty to 
 the Government of the United States, or ha\'ing given aid or comfort to its enemies. 
 
 On December 3, 1867/ j\Ir. Burton C. Cook, of lUinois, submitted the report.^ 
 After affirming again the principles set forth in the former report the committee say: 
 
 It is apparent that there must be power in this House to prevent this [seating of disloyal persons], 
 the House being the judge of the qualifications of its Members, of which fidelity to the Constitution is 
 one, and that this end can only be certainly accomplished by the investigation of any specific and appar- 
 ently well-grounded charge of personal disloyalty made against a person claiming a seat as a Member 
 of this House, before such person is permitted to take the seat. The House concurred in this view of 
 the committee by adopting the resolution under which the committee is now acting. The principle 
 upon which this preliminary investigation was ordered was adopted by Congress when the oath of office 
 to be taken by Members of this House was prescribed by law, and the preliminary investigation of 
 specific and apparently well-founded charges against a person claiming a seat in this House is only an 
 additional mode of attaining the same result sought to be secured by requiring the oath to be taken by 
 all persons who become Members of the House. * * * 
 
 Whether at some future time provisions should be made by law by which those persons who have 
 been at one time guilty of acts of disloyalty, but have by their subsequent conduct given conclusive 
 evidence of loyalty, attachment to the Government, and obedience to the Constitution and laws, should 
 be permitted to take seats in this Hotise, is a matter which addresses itself to the considerate judgment 
 of Congress, but upon which the committee is not now called upon to express an opinion. But while 
 the committee entertained no doubt that it is the right and duty of this House to turn back from its verj' 
 threshold everyone seeking to enter who has been engaged in armed hostility to the Government of the 
 United States, or has given aid and comfort to its enemies during the late rebellion, yet we believe that 
 in our Government the right of representation is so sacred that no man who has been duly elected by 
 the legal voters of his district should be refused his seat upon the ground of his personal disloyalty, 
 tmless it is proved that he has been guilty of such open acts of disloyalty that he can not honestly and 
 truly take the oath prescribed by the act of July 2, 18G2; and further, that the commission of such acts 
 of disloyalty to the Government should not be suspected merely, but should be proved by clear and 
 satisfactory testimony, and that while mere want of active support of the Government or a passive 
 sympathy with the rebellion are not sufficient to exclude a person regularly elected from taking his 
 seat in the House, yet whenever it is shown by proof that the claimant has by act or speech given aid or 
 countenance to the rebellion, he should not be permitted to take the oath, and such acts or speech need 
 not be such as to constitute treason technically, but must have been so overt and public, and must have 
 been done or said under such circumstances, as fairly to show that they were actually designed to, and in 
 their nature tended to, forward the cause of the rebellion. In obedience to the resolution of this House 
 of July 8, 1867, acting upon the views herein expressed, your committee sent a subcommittee to the 
 State of Kentucky, and carefully examined all the evidence which they could procure upon the ques- 
 tion referred to them, and upon an examination of the evidence they find that it is not proved that 
 either James B. Beck, Thomas L. Jones, A. P. Grover, or J. Proctor Knott have been engaged in armed 
 hostility to the Government of the United States, or have given aid and comfort to its enemies, during 
 the late rebellion, and they therefore recommend that they be permitted to be sworn as Members of 
 this House. In relation to the case of Lawrence S. Trimble, John D. Yoimg, and John Young Brown, 
 the committee reports that the seat of each of these gentlemen is contested, and that in each case the 
 contestants have made the point that the person holding the certificate of election had been guilty of 
 direct acts of disloj'alty to the Government, and evidence has been taken both by the claimants and 
 contestants, in addition to that taken by the committee, upon that question, which evidence the 
 
 ' SecondsessionFortiethCongress, Report No. 2; 2Bartlett, p. 368; Journal, p. 30; Globe, pp. 11, 13. 
 ^ It was announced in the House that Messrs. Michael C. Kerr, of Indiana, and Joseph W. McClurg, 
 of Missouri, did not concur in the legal propositions laid down in the report.
 
 444 PRECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 449 
 
 committee has not yet had time to consider, and is not now prepared to report any conclusion in those 
 cases. The committee believes that it will be able to report in those cases within a short time, as 
 the cases are understood to be ready for a final hearing. 
 
 The committee recommends the adoption of the following resolution: 
 
 Resolved, That James B. Beck, Thomas L. Jones, A. P. Grover, and J. Proctor Knott are entitled to 
 seats as Members of this House from the State of Kentucky. 
 
 The resolution was agreed to without division, and the four persons named were 
 sworn in as Members.' 
 
 449. The Kentucky election case of Smith v. Brown in the Fortieth 
 Congress. 
 
 In 1868 the House excluded a Member-elect who, by voluntarily 
 giving aid and comfort to rebellion, had, in the opinion of the House, 
 made it impossible for him to take the oath of office prescribed by law. 
 
 In 1868, a question of loyalty arising, the House in effect held that 
 there might be established by law qualifications other than those 
 reqviired by the Constitution. 
 
 In 1868 it seems to have been assumed by the Committee on Elec- 
 tions, if not by the House itself, that the House alone might not add 
 to the qualifications prescribed by the Constitution. 
 
 Form of oath prescribed by the act of July 2, 1862, known as the 
 " Iron-clad oath." 
 
 Discussion as to whether or not the law prescribing the oath of 
 loyalty in 1862 was constitutional. 
 
 The House may by resolution modify the legal requirements for 
 taking testimony in an election case. 
 
 On July 9, 1867,- Mr. Henry L. Dawes, of Massachusetts, from the Committee 
 on Elections, presented this resolution, which was agreed to: 
 
 Resolved, That in each of the cases of contested election from Kentucky, the time for taking 
 testimony is hereby extended to the 1st day of December next, in all things else conforming to existing 
 law, except that such testimony may be taken before a notary public. 
 
 On January 21, 1868,' Mr. Henry L. Dawes, of Massachusetts, from the 
 Committee on Elections, submitted the report of a majority of the committee ' 
 in one of the above-mentioned cases, Smith v. Brown. Mr. Brown had presented 
 credentials in proper form, but had been excluded with other Kentucky- 
 Members.^ 
 
 There was no doubt that he had received a large majority of the votes. 
 
 ' On December 18, 1863, in the Senate, Mr. Charles Sumner, of Massachusetts, proposed a rule 
 requiring all Senators to take and subscribe in open Senate to the oath or affirmation provided for by the 
 act of July 2, 1862. This gave rise to a lengthy and learned debate on the subject of the oath required 
 and allowed by the Constitution, and upon the question of establishing qualifications outside of those 
 provided by the Constitution. The debate was continued January 20, 21, and 25, 1864, and on the 
 latter day the resolution was agreed to. yeas 28, nays 11. (First session Thirty-eighth Congress, Globe,- 
 pp. 48, 27.5, 290, 320-331, 341.) 
 
 ^ First session Fortieth Congress, Journal, p. 177; Globe, p. 546. 
 
 ^Second session Fortieth Congress, House Report No. 11; 2 Bartlett, p. 395; Rowell's Digest, 
 p. 220. 
 
 * Minority views filed by Messrs. M. C. Kerr, <if Indiana, and John W. Chanler, of New York. 
 
 ■'' See section 448 of this work.
 
 § 449 THE OATH AS RELATED TO QUALIFICATIONS. 445 
 
 This election case, the first of its kind since the formation of the Constitution, 
 and recognized by the House as of the liighest importance, was divided into two 
 branches, which the House decided to debate and decide separately. 
 
 (1) The question as to whether or not John Young Brown was disqualified 
 from sitting as a Member of the House on account of his having been guilty of acts 
 of disloyalty to the Government of the United States or having given aid or 
 comfort to its enemies. The majority of the committee, in their report, cite 
 first the oath prescribed by the act of July 2, 1862: ' 
 
 That hereafter even' person elected or appointed to any office of honor or profit under the Govern- 
 ment of the United States, either in the civil, militarj', or naval departments of the public service, 
 excepting the President of the United States, shall, before entering upon the duties of such office, and 
 before being entitled to any of the salary or other emoluments thereof, take and subscribe the following 
 oath or affirmation: 
 
 I, A. B., do solemnlyswear (or affirm; tnat ^ have never voluntarily borne arms against the United 
 States since I have been a citizen thereof: that I have voluntarily given no aid, countenance, counsel, 
 or encouragement to persons engaged in armed hostility thereto; that I have neither sought, nor 
 accepted, nor attempted to exercise the functions of any office whatever under any authority or pre- 
 tended authority in hostility to the United States; that I have not yielded a voluntary- support to any 
 pretended government, authority, power, or constitution within the United States hostile or inimical 
 thereto. And I do further swear (or affirm) that, to the best of my knowledge and ability, I wUl support 
 and defend the Constitution of the United States against all enemies, foreign and domestic; that I 
 will bear tnie faith and allegiance to the same; that I take this obligation freely, without any mental 
 reser\'ation or purpose of evasion: and that I will well and faithfully discharge the duties of the office 
 on which I am about to enter: so help me God. 
 
 The report then says: 
 
 The committee understands itself to be instructed to inquire whether the said Brown has committed 
 any of the acts which he is required by said statute, before entering upon the duties of a Representative, 
 to make oath that he has not done. 
 
 The evidence relied upon to support this charge of disloyalty against Mr. Brown is contained in 
 the following letter, written by him at the time it bears date, to the editors of the Louisville Courier, 
 and published in that paper on the 15th day of May following: 
 
 [From the Louisville Courier, May 15, 1861.] 
 
 EUZABETHTOWN, ApHl 18, 1861. 
 
 Editors Louisville Ccnirier: 
 
 My attention has been called to the following paragraph, which appeared in your paper of this date: 
 
 "John Young Brown's Position. — This gentleman, in reply to some searching interrogatories 
 put to him by Governor Helm, said, in reference to the call of the President for four regiments of volun- 
 teers to march against the South — 
 
 " '/ wmild not send one solitary man to aid that Government, and those uho volunteer should be shot 
 doun in their tracks.' " 
 
 This ambiguous report of my remarks has, I find, been misunderstood by some who have read it, 
 who construe my language to apply to the government of the Confederate States! What I did say wa-s this: 
 
 "Not one man or one dollar will Kentucky furnish Lincoln to aid him in his unholy uur agaiytst 
 the South. If this northern army shall attempt to cross our borders, ve will resist it vnto the death; and if 
 one man shall be found in our Commonwealth to volunteer to join them he ought and I believe will be 
 shot down before he leaves the State." 
 
 This was not said in reply to any question propounded by ex-Governor Helm, as you have stated, 
 and is no more than I frequently uttered publicly and privately prior to my debate with him. 
 Respectfully, 
 
 John Young Brown. 
 
 1 12 Stat. L., p. 502.
 
 446 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 449 
 
 The majority and minority differed as to the pm-port and effect of these words. 
 The minority contended that considering the circumstances at the time the letter 
 was written it was not disloyal. The majority concluded that Mr. Brown having 
 "voluntarily given aid, countenance, counsel, and encouragement to persons 
 engaged in armed hostility to the United States," he is not entitled to take the 
 oath of office or to be admitted to this House as a Representative from the State 
 of Kentucky. 
 
 Therefore the majority of the committee recommended the adoption of the 
 following resolution: 
 
 Resolved, That John Young Brown, having voluntarily given aid, countenance, counsel, and 
 encouragement to persons engaged in armed hostility to the United Statse, is not entitled to take the 
 oath of office as a Representative in this House from the Second Congressional district of Kentucky or 
 to hold a seat therein as such Representative. 
 
 This portion of the report was debated fully on January .3 1 and February 1 
 and 3, 1868'. The question of fact as to whether the letter actually constituted 
 such an act as the majority contended was considered, but the conflict was especially 
 vigorous over the legality of the proposed action. 
 
 In opposition to the action recommended by the majority of the committee it 
 was urged^ that in the compact known as the Constitution it was agreed that no 
 State should elect any person who should not have three specified qualifications, of 
 age, citizenship, and inhabitancy. Either House might judge the elections, returns, 
 and qualifications of its own Members and might expel. Subject to these limita- 
 tions the right and power of the States over their Representatives was exclusive and 
 complete. The attempt in the act of July 2, 1862, to impose another qualification 
 was in direct conflict with the terms of the original pact. The unposition of addi- 
 tional limitations not being among the powers granted to the Congress, it must be 
 unconstitutional and void. But even supposing the act of 1862 to be constitutional, 
 it was not competent for the House to inquire whether a Member might take the 
 oath. That was a question for him to determine by himself. It was further urged,^ 
 although not as vital, that even under the terms of the act of 1862 the oath might 
 not be rightfully required, since there was a broad distinction between a Member 
 of Congress and the officer referred to in that act. Further, the law of the oath was 
 unconstitutional in that it was ex post facto and assumed to punish for alleged 
 offenses committed before its enactment, and also to punish without legal trial and 
 conviction. In the case of ex parte Garland the Supreme Court had held this oath 
 unconstitutional when applied to lawyers. The oath was also unconstitutional, 
 because the Constitution prescribed only an oath "to support this Constitution." 
 Under the legal principle "expressio unius exclusio alterius'i it was to be presumed 
 that the Constitution meant what was written and nothing more. The same 
 doctrine would indicate that in enumerating the three qualifications the Constitution 
 intended that there should be no more. In support of this contention Justice Story 
 was quoted. It was true that the House was the judge of the qualifications of its 
 
 ' Globe, pp. 891, 899, 901, 916, 937. 
 
 2 By Mr. James B. Beck, of Kentucky, Globe, p. 902. 
 
 3 By Mr. J. Proctor Knott, of Kentucky, Globe, p. 912.
 
 § 449 THE OATH AS RELATED TO QUALIFICATIONS. 447 
 
 own Members, but this did not mean that it might create new quahfications. It 
 must sit in a judicial and not a legislative capacity, and decide only whether the 
 Member had the three enumerated qualifications. This argument as to the inability 
 of the House to add qualifications by itself was admitted to be soimd by the chair- 
 man of the Elections Committee,' who presented the report against Mr. Brown, but 
 he of course held that the Congress might by the law of the oath establish the 
 additional qualification of loyalty. 
 
 In support of the resolution of exclusion it was argued that the Government 
 might go behind the qualifications enumerated in the Constitution. It was true 
 that only three qualifications were specified, but did not this mean that no man 
 should serve who had not at least these three qualifications? - It had been held that 
 the States might not impose other qualifications, but it did not necessarily follow 
 that the Congress, with the approval of the President, i. e., the Government, might 
 not prescribe other qualifications. It was inherently implied in every constitu- 
 tional provision under which the House had its existence that no man should be 
 qualified to sit as a Member who had not the indispensable qualification of loyalty 
 to the Government. The laws of human society authorized a government to resort 
 to all means to preserve itself. In McCulloch v. Maryland, Chief Justice Marshall 
 had set forth views sustaining the argument that Congress had full powers of preser- 
 vation of itself. The Congress of 1862 had fidl power to adopt the form of oath in 
 question in this case as a consequence. ■ It was further urged^ that if under the Con- 
 stitution no qualifications except those enumerated could be required, then the 
 great leaders of the recent rebellion might be elected to the House and seated. 
 Even expulsion might not be a remedy, since if a man had a right to take a seat he 
 had a right to hold it. By laws passed in 1793 and 1853, disqualifying persons 
 guilty of certain acts from holding any oSice of honor, trust, or profit under the 
 United States, Congress had asserted its right to prescribe additional qualifications. 
 It could not be said that exclusion from the House in the pending case was an ex 
 post facto punishment, for a disqualification from holding office was not an increase 
 of penalty. 
 
 In rebuttal the minority argvied that the case of McCulloch v. The State of 
 Maryland had no application to the pending case. Also, the effect of the acts of 
 1793 and 1853 was denied on the ground that a Member of Congress was not an 
 officer witliin the meaning of those laws. 
 
 On February 13^ the question was taken on a motion of Mr. Michael C. Kerr, of 
 Indiana, to substitute for the resolution proposed by the majority the following: 
 
 That John Young Brown, not having voluntarily given aid, countenance, counsel, or encourage- 
 ment to persons engaged in armed hostility to the United States, and having received a majority of the 
 votes cast in the Second district of Kentucky for Representative in this House, is entitled to admission 
 and to take the oath of office as a Representative from said district. 
 
 'Mr. Henry L. Dawes, of Massachusetts, Globe, p. 915. Mr. Dawes cited his report in this case, 
 wherein he said that the House "can judge whether each Member has been elected according to the 
 laws of his State and possesses the qualifications fixed by the Constitution. Here its power begins 
 and ends." 
 
 ^Speech of Mr. Dawes, Globe, p. 894. 
 
 3 By Mr. Burton C. Cook, of Illinois, Globe, p. 909. 
 
 * Journal, pp. 342, 343; Globe, p. 1161.
 
 448 
 
 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 § 450 
 
 This amendment was disagreed to, yeas 43, nays 38. 
 
 The resokition of the majority, excluding Mr. Brown, was then agreed to with- 
 out division. 
 
 450. The Kentucky case of Smith v. Brown, continued. 
 
 In the Kentucky cases in 1868 a contest was presented and sus- 
 tained against a person to whom the House had refused the oath on his 
 prima facie showing. 
 
 The person receiving the majority of the votes in a district being 
 excluded as disqualified, the House, after careful examination, declined 
 to seat the one receiving the next highest number. 
 
 The Elections Committee, in a report sustained on the main issue, 
 held as an incidental question that the English law as to seating a 
 minority candidate when a vacancy is caused by disqualification is not 
 applicable under the Constitution. 
 
 (2) On the second branch of the case, relating to the right of the contestant to 
 the seat, the comnuttee were imited. Mr. Young's majority over the contestant 
 was 6,106 votes. The contestant rested his claim to the seat solely on the legal 
 view that where a candidate known to be ineligible receives the highest number of 
 votes, those votes are to be treated as void, and the candidate having the next 
 highest number be seated. The report reviews the English authorities on which 
 contestant mainly relied, showing that the rule rested entirely on the fact that the 
 voters had knowledge of the ineligibility of the candidate before voting for him. 
 The rule laid down by Heywood on County Elections was ' ' that it is a willful obsti- 
 nacy and misconduct in a voter to give his vote for a person laboring under a 
 known incapacity." Parliament requires the notice of this incapacity to be exceed- 
 ingly formal, and in almost every instance to be at the polls. The report says: 
 
 Now, if it be admitted that this is the rule of law in this country as well as in Great Britain, the facts 
 do not bring this case within it. No such notice as the British Parliament required was given to the 
 electors at the polls in the twelve counties composing this district. Indeed, it does not appear that any 
 notice at all of any alleged ineligibility was given at a single poll. The most that can be claimed, by way 
 of notice, is the alleged notoriety of certain facts, viz, the publication of the letter, which, it is claimed, 
 was evidence from which ineligibility could be inferred by the voter. But how notorious were even these 
 facts? The letter was published in 1861 — six years before the election; it was reproduced on the stump; 
 but in how many of these counties, in the hearing of how many of the very men who afterwards, on elec- 
 tion day. cast their votes for Mr. Brown, does not appear. It must also be remembered that what would 
 be the legal result arising from these facts was never made certain before the votes. That result depended 
 upon the purpose for which the letter was written, and its effect — all matters of proof and matters at all 
 times in dispute before the voters, and about which even this committee itself, with a better opportunity 
 than any voter ever had to investigate and examine all the evidence, are now, after a full hearing, as 
 nearly equally divided as possible. How can it be said, then, that any voter, in casting his ballot for 
 Mr. Brown, has been guilty of "willful misconduct and obstinacy" by casting a vote for one known to be 
 ineligible? Mr. Hejrwood says that in England "it is not so in a doubtful case." (Southwark Elections, 
 p. 259.) If, then, it be admitted that this English rule was a law binding on this House, still it would 
 not avail Mr. Smith in this case, for the facts do not bring the case within the rule. 
 
 But the committee do not find any such law regulating elections in this country, in either branch of 
 Congress, or in any State legislature, as far as they have been able to examine. Their attention has been 
 called to no case, and it was not claimed before the committee that, as yet, this rule, by which one receiv- 
 ing only a minority of the votes actually cast had been adjudged elected, had ever been applied in this 
 country.
 
 § 450 THE OATH AS RELATED TO QUALIFICATIONS. 449 
 
 On the other hand, there have been many cases of alleged ineligibility in both branches of Congress 
 since the formation of the Government, in some of which seats have been declared vacant on that ground, 
 and in which, had there existed in this country any such rule, it would certainly have been resorted to. 
 
 The report cites the cases of Ramsey v. Smith, Gallatin, Bailey, Shields, and 
 the case of Mr. Bro\vn himself (the excluded one), who was not allowed to take his 
 seat in the Tliirty-sixth Congress until he had arrived at the constitutional age. 
 Cushing's Law of Legislative Assemblies was also discussed, and shown to be based 
 on English, not American, precedents. 
 
 The report goes on to discuss the powers of Parliament, which are often called 
 omnipotent, and which in theory proceed from the Sovereign and not from the people. 
 In the matter of elections it had laid down many arbitrary laws besides the one in 
 question. Comparing the English with the American system, the report says: 
 
 There certainly can be no need of argument to show that such law can find no place in our system, 
 or occasion to contrast the limited powers of the House of Representatives with the "omnipotence" of 
 Parliament. As Congress, much less the House of Representatives, never conceded, never having the 
 power to concede, to a voter his right to the ballot, neither can it take it away, modify, or limit it. 
 Least of all can this body, the House alone, punish a voter for "obstinacy" or "perversity" in the 
 exercise of his right. It can not touch a voter or prescribe how he shall vote, nor can it impose a pen- 
 alty on him, much les.s disfranchise him or say what shall be the effect or the power of his ballot if it 
 be cast in a particular way. The laws of the State determine this. It is unnecessary to discuss how 
 far both Houses by a law can interfere under that clause of the Constitution which says that "the time, 
 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 regula- 
 tions." It is enough to say that Congress never has touched those regulations, but has left them as 
 made by the States. Both Houses have always absolutely conformed, in the effect to be given to the 
 ballot, to the law of the State. To such extent has it been carried that the Senate has rejected a 
 claimant to a seat who had 29 votes to 29 blanks, because there was a law of the State defining the 
 power of each ballot by prescribing that, to be elected Senator, one must have not only a majority of 
 all the votes cast, but also a majority of all the members elected to the legislature (2 Contested Elec- 
 tions, G08i, and there happened to have been 60 members elected to that legislature: and this House 
 has, in obedience to a law of the State of Delaware, rejected votes and given the seat to a contestant, 
 because 4 votes had only the name of the sitting Member on them, when the law required each voter, 
 though there was but one Representative to be elected, to put two names on his ballot of two persons 
 residing in different counties of the State. (1 Contested Elections, 69.) Some States have required a 
 majority of all votes cast for an election, some a plurality alone, some a plurality after one or more 
 unsuccessful attempts. The statute books of the States are fidl of provisions touching elections, extend- 
 ing as well to the effect and jwwer of each ballot as to the manner of depositing it, all of which are 
 a rule for this House. Congress has not seen fit to enact any law concerning it if it had the power. It 
 is not necessarj' to inquire whether Kentucky might not provide by law that votes cast for one known 
 to be ineligible shall be thrown away, and one who has received a majority of the votes only shall be 
 declared elected. It is enough to say that that State has not only never passed such a law, but it 
 has enacted by statute that no one shall be declared elected who has not received a majority of the 
 votes cast. As has been shown, Parliament did enact a law that votes cast for one ineligible shall be 
 treated as if not cast, and one having a minority only of the votes be thus elected. But neither has 
 Congress nor Kentucky enacted any such law; much less can this House alone, by a resolution, set it 
 up, and that, too, after the fact, as a punishment for "willful obstinacy and misconduct." The right 
 of representation is a sacred right, which can not be taken away from the majority. That majority, 
 by perversel}' persisting in casting its vote for one ineligible, can lose representation, but never the 
 right to representation while the Constitution and the State government shall endure. If it be inquired 
 whether a loyal minority have not rights which are thus extinguished, the answer is obvious. If aU 
 
 .-,004 — VOL 1— fl7 20
 
 450 . PRECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 450 
 
 are legal voters the right of one is no greater than that of another; nor is it a valid objection that by 
 this rule one district after another might be left without a Representative until representation itself 
 might be destroyed. The Constitution has given into the hands of Congress power by law to make, 
 alter, or amend all regulations as to the times, places, and manner of electing Representatives. If 
 this is power enough to meet the exigency, it will be met when it arises. If there is not power 
 enough then it can not be found in that instrument. When Congress has by law thus regulated 
 elections, this House can, by resolution, conform its actions thereto, but not till then. 
 
 The committee are therefore of the opinion that the case does not come within the law of the British 
 Parliament, for want of a sufficient notice to the electors at the polls of an ineligibility, known and 
 fixed by law; that the law of the British Parliament in this particular has never been adopted in this 
 country, and is wholly inapplicable to the system of government under which we live. 
 
 The will of the majority expressed in conformity with established law is the very basis on which 
 rest the foundations of our institutions, and any attempt to substitute therefor the will of a minority 
 is an attack upon the fundamental principles of the Government, and if successful will prove their 
 overthrow. 
 
 Therefore the committee recommended the following resolutions: 
 
 Resolved, That Samuel E. Smith, not having received a majority of the votes cast for Representative 
 in this House from the Second Congressional district of Kentucky, is not entitled to a seat therein as 
 such Representative. 
 
 Resolved, That the Speaker be directed to notify the governor of Kentucky that a vacancy exists 
 in the representation in this House from the Second Congressional district of Kentucky. 
 
 This branch of the report was debated at length on February 14 and 15.' 
 This debate led to a review of precedents and to the citation of several American 
 precedents which the report of the committee had overlooked and which were in 
 harmony with the English rule. The earliest was an instance wherein about 
 seventy years previous a sheriff had been declared elected in one of the counties 
 of Maryland on the principle of the English precedents.^ A later case was a decis- 
 ion of the Maine supreme court ' (7 Maine reports) , where certain scattering votes 
 cast for an ineligible person had been disregarded, thus allowing an election which 
 otherwise would have been defeated for lack of the required absolute majority. 
 Another precedent was cited from the Maine legislature of 1865, where a candidate 
 who was ineligible was excluded, although he had a majority of the votes, and the 
 minority candidate was seated. The Indiana case of Gulick v. New was also 
 cited in support of the same theory. Those who opposed the view of the committee 
 also contended that the alleged disloyalty of Mr. Brown was well known in the 
 district and constituted sufficient notice. In reply, it was argued that it had only 
 recently been decided that such disloyalty was a disqualification and that Mr. 
 Brown's status was a matter of controversy in the district. 
 
 Those supporting the report also denied the authority of the English rule and 
 cited, in addition to the precedents referred to in the report, a decision by the 
 supreme court of Georgia in 1852, wherein the English rule was denied and the 
 contrary principle upheld. 
 
 ' Globe, pp. 1185, 1189-1200. 
 
 ' Speech of Mr. Dawes, Globe, pp. 1185, 1186. 
 
 ' Speech of Mr. John A. Peters, of Maine, Globe, p. 1197.
 
 § 451 THE OATH AS RELATED TO QUALIFICATIONS. 451 
 
 The question was taken ' on a motion of Mr. John Cobiirn, of Indiana, to sub- 
 stitute for the resolution denying to contestant the seat the following: 
 
 That Samuel E. Smith, having received a majority of the votes cast in conformity with law, is 
 entitled to take the oath of office as a Representative in this House from the Second Congressional 
 district of Kentucky. 
 
 This motion was decided in the negative, yeas 30, nays 102. 
 
 Then the resolutions as reported by the committee were agreed to without 
 division. 
 
 451. The Kentucky election case of McKee v. Young in the Fortieth. 
 Congress. 
 
 John D. Young, having, in the opinion of the House, voluntarily- 
 given aid and comfort to the enemy by words, although not by acts, 
 was held incapable of taking the oath of July 2, 1862. 
 
 Argument that the act of July 2, 1862, prescribing a test oath, did 
 in effect create an additional qualification. 
 
 In an exceptional case the House rejected votes cast by persons 
 lately in armed resistance to the Government, although hy the law^ of 
 the State they were qualified voters. 
 
 Certain officers of election being held to be disqualified under State 
 law, the House rejected the returns over which they had presided, 
 declining to treat them as de facto officers. 
 
 A question as to whether on not the votes of persons deprived of 
 citizenship by an act of Congress should be rejected in a case where 
 the State law did not require a voter to be a citizen of the United States. 
 
 On March 23, 1S6S,^ Mr. Joseph W. McCliu-g, of Missoiu-i, from the Committee 
 on Elections, submitted a report of the majority of the committee on the Kentucky 
 election case of McKee v. Young. Mr. Young had presented himself at the pre- 
 ceding session with credentials in regular form, but with other Kentucky Members ^ 
 had not been permitted to take the seat until his qualifications for loyalty had been 
 investigated. 
 
 The questions arising in this case naturally divide themselves into two main 
 branches : 
 
 1. The majority of the committee concluded, from a discussion of the evidence, 
 that the contestant had sustained the allegation in his notice of contest that said 
 Young "voluntarily gave aid, coimtenance, counsel, and encouragement to persons 
 engaged in armed hostility to the Government of the United States." The report 
 says: 
 
 The committee find the allegations of the contestant so sustained by the proof that it is unnecessary 
 to contend that a rule too liberal in favor of those who sympathized with the late avowed enemies of 
 the Government was adopted when report No. 2 of this session was approved by this House in the cases 
 from Kentucky of Beck, Jones, Grover, and Knott. This case is brought within the rule then laid 
 
 ' Journal, pp. 350, 351. 
 
 ' Second session Fortieth Congress, House Report No. 29; 2 Bartlett, p. 422; Rowell's Digest, p. 222. 
 
 ^ See section 448 of this work.
 
 452 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 451 
 
 down, as it is proven, by clear and satisfactory testimony, that the said John D. Young "has been guilty 
 of such acts of disloyalty that he can not honestly and truly take the oath prescribed by the act of 
 July 2, 18G2." 
 
 The testimony of witnesses both for and against Mr. Young shows that he was not regarded by any 
 as a Union man, and that he was not merely in passive sympathy with those engaged in the rebellion 
 but desired its success and so expressed himself. 
 
 Before quoting testimony on this point the committee would express the opinion that "aid and com- 
 fort'' may be given to an enemy by words of encouragement, or the expression of an opinion, from one 
 occupying an influential position. The said John D. Young occupied the official position of county 
 judge, as shown in the testiraimy. 
 
 The majority of the committee make no argument on the right to exclude such 
 a person, regarding that question as settled by the preceding cases. 
 
 The minority of the committee '■ deny that the evidence shows those results 
 claimed by the majority, and argue again that the House may not exclude for such 
 a reason. They say: 
 
 Upon the whole evidence, therefore, the undersigned maintain that it has not been made to appear 
 Dy anything like "clear and satisfactory testimony" that John D. Young has been guilty of any such 
 open acts of disloyalty that he can not truthfully take the oath prescribed by the act of July 2, 1862, 
 and that he should be permitted to take his seat as the Representative of the Ninth Congressional dis- 
 trict of Kentucky in the present Congress. 
 
 The undersigned can not, however, close this paper, lengthy as it has necessarily been made, with- 
 out entering a most solemn and emphatic dissent from the doctrine assumed by the majority, that a 
 person po.ssessing the qualifications prescribed in the Constitution of the United States for a Member of 
 the House of Representatives can be legally excluded from his seat as such, after ha-ving been duly 
 elected thereto, simply because he may not be able truthfully to take the oath prescribed by the act 
 of July 2, 1862. It is more than doubtful, in their opinion, whether the act can, by any proper rule of 
 construction, be made to apply to Members of Congress at all; but, be that as it may, it seems to them 
 to be a violation of the Constitution in more than one particular. 
 
 Congress, by an act passed January 24, 1865, extended the provisions of the act of July 2, 1862, 
 so as to require the oath therein prescribed to be taken by lawyers practicing in the courts of the United 
 States. That act was declared by the Supreme Court, upon solemn adjudication, after thorough argu- 
 ment, to be unconstitutional, not only because it was in conflict with the inhibition against the passage 
 of bills of attainder, but because it was to all intents and purposes an ex post facto law, besides being 
 in contravention of that clause in the Constitution vesting the pardoning power in the Executive. (Ex 
 parte Garland, 4 Wall., p. 333.) But there is another and far weightier reason for holding the act of 1862 
 unconstitutional, when sought to be enforced as to Members of Congress, and that is, that it superadds 
 qualifications, or, which amounts to the same thing, prescribes disqualifications for Representatives 
 unknown to the Constitution, which, in the very nature of things, Congress has no power to do. 
 
 The Constitution, section 2, Article I, provides that " no person shall be a Representative who 
 shall not have attained the age of twenty-five years, and been seven years a citizen of the United States, 
 and who shall not when elected be an inhabitant of the State in which he shall be chosen," the converse 
 of which is that any person who is 25 years of age, has been a citizen of the United States for seven 
 years, and is an inhabitant of the State in which he may be chosen, shall be a Representative if legally 
 elected as such. If the person elected possess the qualifications presented by the Constitution, Con- 
 gress has no power to inquire any further, or to demand anything more. 
 
 This principle was early recognized by Congress in the case of Barney v. McCreery, from Maryland, 
 and reaffirmed in the cases of Fouke r. Trumbull, and Turney v. Marshall, from Illinois. In the latter 
 case the distinguished chairman of the committee at that time, Mr. Bingham, says in his report: 
 
 ' ' By the Constitution the people have the right to chose as their Representative any person having 
 only the qualifications therein mentioned, without superadding thereto any additional qualification 
 whatever. A power to add new qualifications is equivalent to a power to vary or change them." 
 
 'Messrs. M. C. Kerr, of Indiana, and John W. Chanler, of New York.
 
 § 451 THE OATH AS RELATED TO QUALIFICATIONS. 453 
 
 Yet that this act does in effect prescribe an additional qualification is too plain to admit of an argu- 
 ment. It is self-evident truth. That additional qualification without the possession of which the 
 majority would not permit him to take his seat, is his ability to truthfully take the test oath. If the 
 majority think he can truthfully take it, he gels his seat; if they think otherwise, he is deprived of it. 
 Will any man of ordinary self-respect deny, then, that this act prescribes an additional qualification? 
 If this principle is correct, then there is no limit to the power of Congress in prescribing qualifications 
 for its Members but the wiU and discretion of the dominant majority, and by prescribing test after test 
 they may exclude everybody but a favored few, and the right of choosing their own Representatives 
 may be taken from the people entirely, or the character of Congress molded to suit the views and 
 interests of one particular section or party forever. 
 
 It is no answer to this to say that Congress should have the power to exclude persons who from 
 imbecility or want of integrity might endanger the safety of the Government. The question is. Has 
 it the power? It has only the power to exclude those who do not possess the qualifications pre- 
 scribed in the Constitution. If the people see proper to elect an imbecile, a person holding opinions 
 distasteful to the majority, or one who may once have held such opinions, to represent them, it is a 
 matter that concerns themselves, and confers no new power on Congress, and suspends no provisions 
 of the Constitution. The only remedy lies in amending the Constitution, in the manner prescribed 
 in the fifth article. Until that is done. Congress can do no more than pass upon the qualifications 
 already prescribed. 
 
 It is simply begging the question to claim that Congress has the power to prescribe this test oath 
 to be taken by its Members, because ' ' each House has the power to judge of the elections, returns, and 
 qualifications of its own Members," for the question instantly reciu-s, "What are the qualifications of 
 which each House may be the judge?" and the answer is, simply the qualifications prescribed by the 
 Constitution. To admit any other rule would be to make each House entirely independent of the 
 Constitution, as to who may or may not be its own Members. 
 
 The majority of the committee proposed the following resolution: 
 
 Resolved, That John D. Young, having voluntarily given aid, countenance, counsel, and encour- 
 agement to persons engaged in armed hostility to the United States, is not entitled to take the oath of 
 office as a Representative in this House from the Ninth Congressional district of Kentucky, or to hold a 
 seat therein as such Representative. 
 
 The report was debated on June 20 and 22,' and on the latter dav Mr. Kerr 
 offered as a substitute a declaration that ilr. Young "was duly elected a Member 
 of this House" and "should now be admitted to his seat herein upon taking the 
 oath prescribed by law." 
 
 This substitute was decided in the negative — yeas 30, nays 96. 
 
 The resolution reported by the committee was then agreed to without division. 
 
 2. On the question as to the election of contestant a greater diversity of opinion 
 arose in the committee. It was not contended that Mi-. McKee should be seated 
 simply because 'Sir. Yoimg had been excluded for disqualification, the question 
 involved m such a proceeding being regarded as settled in a former case. But a 
 serious division of opinion arose on the question as to whether or not the contestant, 
 Mr. McKee, had actually been elected. In the report presented March 23 all the 
 committee, with one exception, agreed that contestant was not elected. But on 
 June 2 the dissenting Member, Mr. Charles Upson, of Michigan, filed views con- 
 tending that contestant had been elected.^ On June 3, by unanimous consent, 
 on motion of Mr. Henry L. Dawes, of Massachusetts, and without debate, the subject 
 was recommitted.^ On June 17 Mr. Burton C. Cook, of Illinois, presented from a 
 
 'Journal, pp. 912, 913. 
 
 = House Report No. 49; 2 Bartlett, p. 452. 
 
 ^Journal, p. 793; Globe, p. 2812.
 
 454 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 451 
 
 majority of the committee' a report taking the ground that the contestant was 
 elected, and recommending the adoption of the following resolutions: 
 
 Resolved, That J. D. Young was not legally elected a Member of the House of Representatives of 
 the Fortieth Congress from the Ninth Congressional district of Kentucky. 
 
 Resolved, That Samuel McKee was duly elected a Member of the House of Representatives in the 
 Fortieth Congress from the Ninth Congressional district of the State of Kentucky. 
 
 Mr. Young had been returned by an official majority of 1,479 votes. In their 
 final report the majority of the conmiittee find that "the 625 votes of rebel soldiers 
 ought not to be counted," that 883 majorit}- should be deducted from ilr. Young, 
 because it was given in precincts where there were ''rebel officers of election," and 
 finally that the votes of eight deserters should be deducted. This would leave a 
 majority of 41 for Mr. McKee, the contestant. 
 
 (a) As to the 625 votes of "rebel soldiers," the majority in their final report 
 say: 
 
 It appears perfectly clear to the committee that persons who had been soldiers in the rebel army 
 had no right to vote or to act as officers of election. They had surrendered to the Government of the 
 United States upon the condition that each company or regimental officer should sign a parole for his men, 
 and each man was allowed to return home, not to be disturbed by United States authority so long as 
 he observed his parole and the laws in force where he resided. These men were especially excepted 
 from the amnesty proclaimed by the President May 29, 1865, under the tenth exception, and there 
 appears to have been no other act of amnesty up to the time of this election which could include them; 
 they were paroled prisoners of war. No reason occurs to the committee why these men should be allowed 
 to vote which would not apply with equal force to them while actually in the field against the Govern- 
 ment; the only difference which appears is that they had now been captured; their object, aim, and 
 intent, whether in fighting or voting, was manifestly to destroy the Government. It seems absurd to 
 say that it was a patriotic duty to kill them while they were in arms against the Government to prevent 
 the destruction of the Government by them, and at the same time wholly illegal to refuse to allow them 
 to accomplish the same result by their votes. The whole plan of reconstruction by Congress, as also the 
 plan of reconstruction proposed in the proclamations of the President, has proceeded upon the assump- 
 tion that those who had renounced their allegiance to the Government and fought against it have forfeited 
 their right to vote. 
 
 In debate Mr. Upson ^ elaborated this argument further: 
 
 1 say that when a rebel throws down the cartridge box he can not take up the ballot box and 
 immediately assume either to come into this House, or to send an agent here to represent him, without 
 the consent of the sovereign power of the nation. * * * Xo republican government can exist on any 
 such basis. Gentlemen say there is no precedent. Well, of course, in the very nature of things there 
 can be no precedent. There is no precedent for such a rebellion * * * It is necessary for us to 
 distinctly lay down and assert the principles that all political rights do not necessarily revert to all 
 men who engage in rebellion when peace is first restored as they were before the rebellion unless by 
 permission of the sovereign power of the people. * * * It is by virtue of the reconstruction acts of 
 Congress, not by any inherent right of their own, that they have the right to vote in the Southern States. 
 
 Kentucky, of course, had not been the subject of reconstruction legislation, 
 never having seceded. 
 
 In their first report the majority of the committee had said : 
 
 But the committee finding that there is no law of Kentucky disfranchising rebel soldiers, have 
 not been able to see how those votes can be rejected. 
 
 • House Report No. 59; 2 Bartlett, p. 458. Mr. Luke P. Poland, of Vermont, who had agreed to the 
 first majority report, dissented from this (Globe, p. 3371). 
 
 2 Globe, p. 3374.
 
 § 451 THE OATH AS BELATED TO QrALIFICATIONS. 455 
 
 The minority of the committee, Messrs. Kerr and Chanler, concurred, with this 
 argument : 
 
 Each State has the exclusive right to determine who shall and who shall not be electors at her poUs, 
 The several States possessed that right before the adoption of the Constitution of the United States. 
 They never surrendered it nor delegated to Congress or any other department of the Government 
 the power to alter or interfere with it in any way. The Constitution of the United States, Article I, 
 section 2, provides that "the electors for Representatives in Congress in each State shall have the 
 qualifications requisite for electors of the most numerous branch of the State legislature." The 
 constitution of Kentucky, in force when this election was held, and still in force, prescribes that all 
 white male citizens of the State. 21 years of age. who shall have resided in the State two years, or in 
 the county, town, or city in which they offer to vote one year next preceding the election, shall be 
 electors of the most numerous branch of the legistlature of that State. (New constitution of Kentucky, 
 Art, II, sec. 8.) It follows, therefore, that no vote cast for either Young or McKee can lawfully be 
 rejected on account of the voter's participation in the rebellion, no matter to what extent that participa- 
 tion may have gone, and there is still less pretext for this claim of contestant's, because Congress has 
 never assumed to declare who shall or shall not be voters in Kentucky, even granting that there are those 
 who may be willing to go to the extent of admitting that they have that power. It is true that the 
 legislature of Kentucky, by an act approved March 11, 1862, sought to deprive all who had participated 
 in the rebellion of the right of suffrage, but this act was repealed by an act approved December 19, 
 186.5, * * *. 
 
 So that long before the 4th of May, 1867, when this election was held, all who had in any way 
 participated in the rebellion were restored to all their political rights and privileges, and had all the 
 qualifications of an elector as fully as if they had never been in the rebellion at all. What difference, 
 then, does it make in this case whether seven hundred or seven thousand of those who voted for Young 
 had been in the rebel army? \Miat difference whether eight or eight thousand of them had deserted from 
 the Federal army? They were still, under the constitution and laws of Kentucky, qualified electors of 
 the most numerous branch of the State legislature, and had as much right to vote for a Member of Congress 
 under the Constitution of the United States as either of the candidates themselves. 
 
 (b) The law of Kentucky of February 11, 1858, provided that the judges of 
 elections should be so appointed as to represent the two political parties, and a 
 further law enacted March 15, 1862, provided: 
 
 Section 1. That in construing the act approved February 11, 1858, to which this is an amendment, 
 those who have engaged in the rebellion for the overthrow of the Government, or who have in any way 
 aided, counseled, or advised the separation of Kentucky from the Federal Union by force of arms, or 
 adhered to those engaged in the effort to separate her from the Federal Union by force of arms, shall not 
 be deemed one of the political parties in this Commonwealth within the provisions of the act to which 
 this is an amendment. 
 
 In their second report the majority found that in each of ten precincts one or 
 more returned rebels had acted as officers of election, and that in such precincts a 
 total majority of 883 had been returned for Mr. Young. The report contends that 
 this majority should be rejected. 
 
 By the law of Kentucky none but electors can be judges or oflicers of election. The law of Ken- 
 tucky also provides that those who have engaged in the rebellion for the overthrow of the Government, 
 or who have in any way aided, counseled, or advised the separation of Kentucky from the Federal 
 Union by force of arms, or adhered to those engaged in the effort to separate her from the Federal Union 
 by force of arms, should not be selected as judges of election. * * * It has long been held that if 
 the officers of election are not capable of holding the office, the election has no more validity than 
 would an election where no officers whatever were appointed; it is otherwise where persons capable of 
 holding the office are appointed, although they may not have complied with the forms of the law. 
 (Easton v. Scott, First Contested Election Cases, p. 272; Delano v. Morgan, decided the present session.)
 
 456 PEKCEDENTS OF THE HOUSE OF REPRESENTATIVES. § 451 
 
 Both in the report and in the debate, a state of intimidation in the district 
 was referred to as a fact which showed the necessity of impartial election officers 
 selected according to the law. 
 
 The partisan leanings of the election officers were shown from the poll books. 
 As to this, and as to the law providing for representation of two parties, neither 
 of which should include those who had aided the rebellion, Mr. Upson, in his 
 minority views, had said: 
 
 It is submitted that such statutes can not be considered as directory merely, but as imperative, 
 and it is insisted also that the condition of this portion of Kentucky, at the time when this election was 
 held, made the rigid enforcement of this law a matter of vital interest to the loyal Union men of that 
 district. 
 
 It is stated by the minority of the committee in their report heretofore referred to (p. 16) that all 
 these election officers must, by the laws of Kentucky, have been appointed in June or July, nearly a 
 year preceding this election, and hence they argue that the vote of these officers cast at this election 
 is no evidence of their political status at the time of their alleged appointment the year previous, and 
 they quote from the reasoning of the chairman of the committee in the case of Blakey v. Golloday 
 (Report No. 1, of this session, p. 3) in support of this position. 
 
 Unfortunately, however, for their argument, they overlooked the fact that this Congressional election 
 was held by virtue of an act of the legislature of Kentucky, pa.s.sed February 18, 1867, which provided 
 that the officers of election to be appointed by the county courts in March or April of that year, for the 
 election of constables and justices of the peace, should be the officers of election for the election of 
 Members of Congress, on the same 4th day of May, 1867, so that the appointment was only made a month 
 or two, at the furthest, prior to the election, and the vote of the election officer would be a pretty sure 
 criterion of his political party status at the time of his appointment, especially as the Representative 
 in Congress was the most important officer to be chosen at said election. 
 
 But the case of Blakey v. Golloday was expressly decided on other grounds, and no decision was 
 made as to the political construction to be given to this law of Kentucky. 
 
 In their first report the majority of the committee had refrained from taking 
 a position on this featiu-e of the case because from the view they took as to other 
 features a decision on this question would not affect the case. 
 
 The minority, composed of Messrs. Kerr and Chanler, held : 
 
 It is a sufficient answer to all this to say that there is no law in Kentucky disqualifying a man from 
 acting as an officer of an election, sheriff of a county, or in any other office in the State, on account of his 
 having been in the rebel army; and, besides, if there were, these were, to say the least of it, all officers 
 de facto, duly appointed and acting regularly under color of authority. No complaint is made that 
 either of them acted unfairly, or that either candidate was benefited or injured by their official action, 
 and, therefore, according to the principle above stated, their acts are as valid, so far as the public and the 
 parties to this contest are concerned, as if they had been officers de jure. 
 
 (c) In making the 41 majority for contestant, the majority of the committee 
 m their second report rejected the votes of eight deserters from the Federal Army, 
 which were shown to have been cast for Young. Mr. Upson, in his minority views, 
 which seem to have largely influenced the second report, had said: 
 
 The act of Congress of March 3, 1865, decitizenizes, by their own voluntary act, all persons who 
 have deserted the military or naval service of the United States who shall not return to said service, 
 or report themselves to a provost-marshal, within sixty days after the issuing of the President's proclama- 
 tion under the provisions of said act, and makes them forever incapable of holding any office of trust 
 or profit under the United States, or of exercising any rights of citizens thereof, and the act of Congress 
 of July 19, 1867, recognizes expressly this loss of citizenship in consequence of desertion. 
 
 The statutes of . Kentucky also recognize the right of expatriation on the part of the citizen, and
 
 § 452 THE OATH AS RELATED TO QUALIFICATIONS. 457 
 
 that naturalization can only be effected under the laws of the United States, so as to make the naturalized 
 person a citizen of that State, and no person by her constitution can be a voter who is not a citizen. 
 Citizenship of white persons in that State is derived by birth within that or some other State of the 
 Union, or residence therein, or by naturalization under the laws of the United States and the like resi- 
 dence in said State. The few exceptional cases it is not necessarj' to notice. That deserters, by reason 
 of this act of Congress, are not legal voters, has also been expressly held by the majority of the said 
 committee in the recent case of Delano v. Morgan, from the Thirteenth Congressional district of Ohio. 
 (Report No. 42 of this session, p. 3.) 
 
 In their first report the majority had said : 
 
 It is proven that eight deserters from the Federal Army voted for Mr. Young, but no law is found 
 under which Kentucky excludes such a vote. 
 
 In the debate Mr. Poland pointed out ' that in the case of Delano v. Morgan 
 the law of Ohio required a voter to be a citizen of the United States, and it was 
 for that reason that deserters who had lost their citizenship because of the law of 
 Congress were rejected in Ohio. In Kentucky there was no State law like that 
 of Ohio. 
 
 On June 20 and 22 ' the report was debated at length, and on the latter day 
 the two resolutions reported by the majority were agreed to. On the second of 
 the two, that declaring contestant elected, there were yeas 62, nays 43. 
 
 ilr. McKee then appeared and took the oath. 
 
 At the outset of this case a preliminary question had been settled as follows : 
 
 Before proceeding to state the grounds on which Mr. McKee bases his claim, the committee remark 
 that the notice of contest is objected to by Mr. Young for the reason that the contestant does not "specify 
 particularly the grounds upon which he relies in the contest." It is unnecessary to say whether or 
 no this objection would have been sustained if made in time; for no objection appears in the answer 
 of Mr. Young to the sufficiency of the notice. None appears to have been made during the time of 
 taking testimony, and none in the progress of the argument before the committee by Mr. Young or 
 his counsel. The objection first appears in Mr. Young's printed brief, after both parties had been 
 fully heard in the whole case. In the opinion of the committee the objection as to particularity of 
 specifications comes too late to require further attention. 
 
 452. The Kentucky election case of Symes v. Trimble, in the Fortieth 
 Congress. 
 
 It not being proved by clear and satisfactory testimony that Lawrence 
 S. Trimble had given aid and comfort to rebellion, the House declined to 
 exclude him. 
 
 In the Kentucky cases in 1868 a contest was presented and sus- 
 tained against a person to whom the House had refused the oath on his 
 prima facie showing. 
 
 The House sometimes authorizes a contestant to serve an amended 
 or supplemental notice of contest after the expiration of the time fixed 
 by law for the serving of the notice. 
 
 Contestants have sometimes served amended or supplemental notices 
 of contest, trusting to the House to authorize the action later. 
 
 • Globe, p. 3372. 
 
 2 Globe, pp. 3328, 3331, 3336, 3368-3375; Journal, pp. 912-914.
 
 458 PRECEDENTS OP THE HOUSE OF REPRESENTATIVES. § 452 
 
 On July 11, 1S67/ Mr. Halbert E. Paine, of Wisconsin, from the Committee on 
 Elections, reported the following: 
 
 Resolved, That G. G. Symes, contestant of the claim of L. S. Trimble, to a seat in this House as a 
 Representative of the First district of Kentucky, be permitted to serve an amended or supplementary 
 notice of contest within ten days after the passage of this resolution, and that L. S. Trimble be permitted 
 to serve his answer thereto within thirty days after the service thereof. 
 
 Mr. Paine explained that when the House was not in session an amended notice 
 was often served after expiration of the legal time, the contestant trusting to the 
 House to authorize the action when it should meet and consider the case. But it 
 happened that the House was in session at this time, and it seemed better to ask 
 the authority at first. It was objected that as the time allowed by law for filing 
 notice had expired this proceeding was unusual, but the resolution was agreed to, 
 ayes 64, noes 26. 
 
 As appears in the case relating to the Kentucky Members generally,^ Mr. 
 Trimble had received an undoubted majority of the votes cast, and had presented 
 credentials in regular form, but had not been permitted to take the oath because of 
 charges that he was disqualified because of alleged disloyalty. 
 
 The Committee on Elections reported on January 7, 1868,^ Mr. Charles Upson, 
 of Michigan, presenting the report: 
 
 By a resolution of this House, passed July 8, 1867, your committee, was, among other things, 
 instructed to inquire and report whether the said Lawrence S. Trimble was "disqualified from sitting 
 as a Member of this House on account of having been guilty of acts of disloyalty to the Government of 
 the United States, or having given aid and comfort to its enemies;" and in pursuance of said resolution 
 testimony was taken in this case, as well as other cases therein embraced, which evidence, on the 3d of 
 December, 1867, was reported to this House. 
 
 The right of the said Trimble to his seat was also contested by G. G. Symes, who likewise claimed 
 to have been elected thereto as the Representative from said district; and one of the points made by 
 the contestant in his allegations was that the said Trimble was "guilty of overt acts of disloyalty and 
 treason to the Government of the United States during the late rebellion, and gave aid and comfort to 
 the rebels by supplying them with medicine, commissary, and quartermasters' stores, to enable them 
 to prosecute the war, and yourself entered their lines and countenanced, aided, and abetted their rebel- 
 lion." As the whole investigation and contest depends chiefly, if not wholly, on this charge of direct 
 acts of disloyalty as disqualifying Mr. Trimble from sitting as a Member of this House, and as the evidence 
 taken under the aforesaid resolution of the House, and under the notice of contest, relates chiefly to 
 this charge, the committee thought proper to consider the evidence taken under the resolution and 
 under the notice of contest together, and to embody its conclusions in one final report. 
 
 Adhering to the rule laid down by the committee in its report made to this House December 3, 1867, 
 in the cases from Kentucky of Beck, Jones, Grover, and Knott (Report No. 2 of this session), which was 
 subsequently approved by the House, the committee, having considered the whole testimony, does not 
 find that it has been "proved by clear and satisfactory testimony" that the said Lawrence S. Trimble 
 "has been guilty of such open acts of disloyalty that he can not honestly and truly take the oath pre- 
 scribed by the act of July 2, 1862," nor does it find the allegations of contestant sustained by the proof. 
 
 The committee found the charge that Mr. Trimble had been concerned in 
 contraband trade with the enemies of the Government too vague and uncertain to 
 be relied on. The report says : 
 
 It is also in evidence that subsequent to these alleged illegal transactions, in September, 1861, and 
 after some charges had been made against Mr. Trimble in relation thereto, an investigation was had 
 
 ' First session Fortieth Congress, Journal, p. 187; Globe, p. 591. 
 
 ^ See section 448 of this work. 
 
 ^Second session Fortieth Congress, House Report No. G; 2 Bartlett, p. 370; Rowell's Dige.st, p. 218.
 
 § 453 THE OATH AS RELATED TO QUALIFICATIONS. 459 
 
 under the supervision of the Treasury Department, and he was exonerated therefrom, and thereupon 
 he was appointed by the Treastiry Department one of the Board of Trade at Paducah, and acted in 
 that capacity, so far as appears, to the satisfaction of the Department. 
 
 From the evidence in regard to speeches made by Mr. Trimble, it appears that in 1861 he was the 
 Union candidate for Congress against Burnett, and made Union speeches in that canvass throughout 
 the district. After the emancipation proclamation of President Lincoln was issued, he, in common 
 with many of the originally professed Union men of Kentucky, opposed Mr. Lincoln's Administration 
 and the policy of the war, charging that it was waged as an abolition war, and asserting that he was 
 opposed to voting any more men or money to aid in carrjang it on; but it is evident from the whole 
 testimony that his opposition was expressed in language similar to that made use of by the opponents 
 of the Administration about that time on the floor of Congress, the propriety or tendency of which, under 
 the circumstances, it is perhaps unnecessary to discuss here. 
 
 Kentucky having had many of her citizens engaged in the rebellion, and others strongly sympa- 
 thizing with them who remained at home, and having since the siurender of the rebel armies permitted, 
 by law, all retiuned rebels to vote who are in other respects qualified, it is evident that avowed sympathy 
 with the rebellion does not at present detract from the popularity of a candidate for official position in 
 that State, but rather conduces to his success, and this fact may have somewhat stimulated some candi- 
 dates in their efforts and intensified their expressions before their constituents. In this case, however, 
 Mr. Trimble having been the outspoken Union candidate for Congress in 1861 against secession, having 
 by authority of the Treasury Department, in September of the same year, served as one of the Board 
 of Trade at Paducah, and having also been elected and having served as a Representative from his 
 district in the Thirty-ninth Congress, his seat uncontested and his loyalty unquestioned, your committee, 
 taking into consideration all the testimony, finds no case made out under the charges against him dis- 
 qualifj'ing him from taking his seat or disproving his election as a Representative to this Congress from 
 his district. 
 
 The committee recommends the adoption of the following resolutions: 
 
 Resolved, That G. G. Symes is not entitled to a seat in this House as a Representative from the 
 First Congressional district in Kentucky. 
 
 Resolved, That the oath of office be now administered to Lawrence S. Trimble, and that he be 
 admitted to a seat in this House as a Representative from the First Congressional district in Kentucky. 
 
 The resolutions were debated in the House on July 10 ' and were agreed to 
 without division. 
 
 The oath was thereupon administered to Mr. Trimble. 
 
 453. A Senator-elect whose loyalty satisfactorily withstood inquiry, 
 but who seemed unable truthfully to take the oath of July 2, 1862, was 
 finally permitted to take the oath. 
 
 In 1866 a Senator having stated in his place that the loyalty of a 
 Senator-elect was doubtful, the credentials were referred to a committee 
 before the oath was taken. 
 
 In 1866^ a question arose in the Senate as to the qualifications of David T. 
 Patterson, a Senator-elect from Tennessee. Mr. Patterson's credentials were 
 presented on Julj^ 26, 1866,^ and after debate were referred to the Committee on 
 the Judiciary, with instructions to inquire into Mr. Patterson's qualifications. 
 
 The motion to refer was made by Mr. Charles Sumner, of Massachusetts, and 
 in support of the motion he cited the case of Senator Stark. It was pointed out 
 that in that case affidavits were presented charging disloyalty. In this case a 
 Senator merely stated in his place that there was reason to suspect the loyalty of 
 
 ' Journal, p. 167; Globe, pp. 447^52. 
 
 '' Election Cases, Senate Document No. 11, special session Fifty-eighth Congress, p. 329. 
 
 ' First session Thirty-ninth Congress, Globe, pp. 4162-4169.
 
 460 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 453 
 
 Mr. Patterson. The debate proceeded to a discussion of the propriety of refusing 
 the oath to a person presenting prima facie evidence of his election, and a distinc- 
 tion was drawn between the Senate, which was a continuing body, and a body like 
 the House, where it was necessary for purposes of organization to give credit to the 
 credentials at the outset. The fact that the House "had declined to give full effect 
 to tlie credentials of the Tennessee Member and had referred them to the committee, 
 in the meantime refusing to allow the bearer to qualify, was cited. The dangers 
 of excluding persons bearing credentials in due form was dwelt on, but the motion 
 of Mr. Sumner was agreed to — yeas 2G, naj-s 14. 
 
 On July 27 ' Mr. Luke P. Poland, of Vermont, presented the report of the 
 committee : 
 
 The only question in relation to the qualiticationa of Mr. Patterson, fir his right to hold his seat in 
 the Senate, arises from the fact of his having held the office of circuit judge in the State of Tennessee 
 after that State had passed an ordinance of secession and become a member of the Confederacy. 
 
 Circuit judges in Tennessee are elected by the people of the several circuits, and hold their offices 
 for the term of eight years. 
 
 Judge Patterson was elected judge in one of the circuits in eastern Tennessee in May, 1854, and 
 his term of office had not expired when the State passed the ordinance of secession. The constitution 
 of the State of Tennessee remained the same after the secession of the State as before, and there was 
 no change made in the form of the State government or in their judicial system. A large majority of 
 the people of East Tennessee were ardently devoted to the Union and deemed it very important for 
 their interest and that of the Union cause that the civil officers in that section of the State should be 
 filled with Union men. 
 
 Judge Patterson was a firm, avowed, and influential Union man, and he was urgently pressed by 
 the Union men of that circuit to run as a candidate for reelection as circuit judge, and ho finally, though 
 reluctantly, consented to do so. The opposing candidate was an avowed secessionist, and the issue 
 in the election was between Union and secession. The election was held in May, 1862, and Judge 
 Patterson was elected over his rebel competitor by a large majority. At the same election most of the 
 local offices in that section were filled by the election of Union men. At that time it was believed by 
 the Union men of East Tennessee that they would soon be relieved from rebel military rule by the 
 arrival of Union forces; and they desired also to retain the civil power in their own hands. In this 
 expectation they were disappointed, and soon rebel liands were scattered through that region, and the 
 Union people were subjected to great hardships and cruel oppression. When Judge Patterson was thus 
 reelected judge, he did not suppose he would be commissioned by the governor of the State, who was a 
 secessionist; but, after some considerable delay, a commission was sent to him with peremptory orders 
 to take the oath. On the receipt of his commission and order to take the oath. Judge Patterson delayed 
 and hesitated, and consulted other leading Union men as to the proper course for him to take. They 
 advised and urged him to take the oath; that he could thereby afford protection to some extent to Union 
 men against acts of lawless ^^olcnce on the part of the rebels, and that if he did not accept the office and 
 take the oath the office would be filled by a rebel, and they would then be oppressed by the civil as 
 well as the military power of the rebels. Judge Patterscm yielded to their urgency and arguments, 
 and went before a magistrate and took the oath which the Tennessee legislature had prescribed, which, 
 in substance, was that he would support the constitution of Tennessee and the constitution of the Con- 
 federate States. Judge Patterson declared at the time to the magistrate that he owed no allegiance to 
 the Confederate government, and that he did not consider that part of the oath as binding him at all. 
 At this time there were rebel troops in the neighborhood, and Judge Patterson had good reason to believe 
 that his refusal to take the oath would subject him to arrest and imprisonment, if not worse treatment; 
 but we do not find that he was actuated at all by personal considerations, but acted solely upon the 
 motive that he could thereby afford some aid and protection to the Union people and also prevent the 
 office from falling into hands that would use it to oppress them. 
 
 Senate Report No. 139.
 
 I 453 THE OATH AS RELATED TO QUALIFICATIONS. 461 
 
 East T<?niK>ssee at tliis timewa.s in a very disturbed and distracted condition. The countrywas full 
 of bands of armed rebels, and lawless violence held sway. Business was nearly suspended, and no 
 civil business was done in the courts. Judge Patterson held a few terms of court in counties where he 
 could organize grand juries of Union men. and in this way did something toward preserving peace and 
 order in the community. No other business was done by him as judge after his election in 1862. 
 
 During all this time Judge Patterson was an open, avowed, and devoted adherent to the Union. He 
 was in constant communication with the officers of the Federal troops nearest that vicinity, and obtained 
 and furnished to th-em information as to the movements of the rebels. He aided in concealing Union 
 men, and in facilitating their escape to the Union lines, when they generally entered the Union service. 
 He aided the Union people and the Union cause in every way open to him, and too numerous for detail. 
 By these means he became amenable to the hostility of the secessionists, and was subjected to great 
 difficulty and danger. He was several times airested and held for some time in custody. At times he 
 was obliged to conceal himself for safety, and spent nights in outbuildings and in the woods to avoid their 
 vengeance. 
 
 In September, I8<>;?, the Federal troops reachea Knoxville, and Judge Patterson succeeded in escap- 
 ing with hLs family to that place, and did not return to his home until after the close of the rebellion. 
 
 As before stated, the constitution and election laws and judicial system of Tennessee remained the 
 same after the secession of the State as before, and Judge Patterson was elected judge the last time under 
 the same State constitution and laws as existed at his first election, and no laws were enforced by him as 
 judge except such as were in force before the secession of the State. 
 
 The committee are all satisfied that during the entire rebellion Judge Patterson was an earnest firm 
 and devoted Union man, and suffered severely in support of his principles. In accepting the office of 
 judge, and taking the official oath, he did not intend any hostility to the authority or Government of the 
 United States, nor did he intend to acknowledge any allegiance to, or any friendship for, the confederate 
 government, but acted throughout with a sincere desire to benefit and preserve the Union and the Gov- 
 ernment of the United States. He always denied the authority of the confederate government over him 
 and feels an entire willingness and ability to take the oath required upon his admission to a seat in the 
 Senate. The committee recommend the following resolution: 
 
 Resolved, That the Hon. David T. Patterson is duly qualified and entitled to hold a seat in the 
 Senate of the United States as a Senator from the State of Tennessee. 
 
 On July 27 ' the resolution was debated and Mr. Lyman Trumbull, of Illinois 
 objected that on the state of facts Mr. Patterson could not take the oath, since the 
 oath would cause him to swear that he had never taken or exercised the functions of 
 the office, while he undoubtedly had done both. It was suggested that Congress had 
 already proposed a constitutional amendment providing for the removal of political 
 disabilities, and while this amendment had not been finally ratified, yet ConcTess 
 might carry out its spirit by passing a joint resolution applying to his case. So a 
 joint resolution was introduced in the Senate that Mr. Patterson be admitted upon 
 his taking so much of the oath prescribed by the act of July 2, 1862, as is not 
 included in the words, "that I have neither sought, nor accepted, nor attempted to 
 exercise the functions of any office whatever, under any authority or pretended 
 authority in hostility to the United States." This joint resolution passed the 
 Senate, but was laid on the table in the House the same day. 
 
 There was considerable debate^ as to the dilemma resulting from this situation, 
 it being maintained strenuously that Mr. Patterson coidd not and should not take the 
 oath, but finally the Senate agreed to this resolution: 
 
 Reso:ved, That the Hon. David T. Patterson, upon taking the oaths required by the Constitution and 
 laws, be admitted to a seat in the Senate of the United States. 
 
 On July 28^ Mr. Patterson took the oath. 
 
 ' Globe, pp. 4213-4216 ^Qio^e, pp. 4242-4245. 'Globe, p. 4293.
 
 462 PRECEDENTS OF THE HOUSE OF EEPKESENTATIVES. § 454 
 
 454. By the fourteenth amendment one who, having previously 
 taken an oath as an officer of Government to support the Constitution, 
 has engaged in rebellion, is disqualified as a Member until the disability 
 be removed. — Section 3 of Article XIV ' of the Constitution provides: 
 
 Section 3. No person shall be a Senator or Representative in Congress, or elector of President 
 and Vice-President, or hold any office, civil or military, under the United States, or under any State, 
 who, having previously taken an oath, as a Member of Congress, or as an officer of the United States, 
 or as a member of any State legislature, or as an executive or judicial officer of any State, to support 
 the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, 
 or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, 
 remove such disability.' 
 
 455. The Tennessee election case of Roderick R. Butler in the Fortieth 
 Congress. 
 
 A Member-elect who was about to be sworn was challenged for dis- 
 loyalty, whereupon the House denied him the oath and referred the 
 credentials. 
 
 A Member-elect who had not been disloyal, but who could not truth- 
 fully take the oath of July 2, 1862, was not sworn until he had been 
 relieved of his disabilities by law. 
 
 An objection to a Member-elect's qualifications being sustained 
 neither by affidavit nor on the personal responsibility of the Member 
 objecting, the House declined to entertain it. 
 
 A bill removing the disabilities of a Member-elect and modifying 
 the test oath for his benefit was passed by a two-thirds vote. 
 
 For persons whose disabilities had been removed the oath of July 2, 
 1862, was modified by the act of July 11, 1868. 
 
 On November 21, 1867,'' at a period after the organization of the House, the 
 Members-elect from the State of Tennessee presented themselves with credentials 
 in regular form. 
 
 Thereupon Mr. Charles A. Eldridge, of Wisconsin, objected to the administra- 
 tion of the oath to one of them, Mr. William B. Stokes, presenting a letter tending 
 to show disloyalty on the part of Mr. Stokes. Mr. Eldridge at the same time pre- 
 sented a resolution that Mr. Stokes's credentials be referred to the Committee of 
 Elections and that he be not sworn pending the investigation. 
 
 Mr. James Brooks, of New York, then challenged Messrs. Butler, Mullins, and 
 Amell, alleging disloyalty in their past records. He also challenged the whole dele- 
 gation on the ground that a republican form of government did not exist in Ten- 
 nessee. He thereupon moved to amend the pending resolution by adding resolu- 
 tions that all the certificates of the gentlemen from Tennessee be referred to the 
 
 • The fourteenth article was proclaimed as ratified on July 28, 1868. 
 
 =! By the act of May 22, 1872 (17 Stat. L., p. 142), the disabilities imposed by this article were removed 
 from all persons whomsoever, except Senators and Representatives of the Thirty-sixth and Thirty- 
 seventh Congresses, officers in the judicial, military, and naval service of the United States, heads 
 of departments, and foreign ministers of the United States; and by act of June G, 1898, all existing 
 disabilities were removed (30 Stat. L., p. 432). 
 
 •■' First session Fortieth Congress, Journal, pp. 253, 254; Globe, pp. 768-778.
 
 § 455 THE OATH AS RELATED TO QUALIFICATIONS. 463 
 
 Committee of Elections, and that Messrs. Butler, Mullins, and Amell's credentials 
 be referred previous to their being sworn. 
 
 After debate, which disclosed more serious evidence in the shape of a legisla- 
 tive journal of Tennessee against Mr. Butler than against the remaining Members, 
 Mr. Henry L. Dawes, of Massachusetts, proposed the following substitute: 
 
 That the credentials of R. R. Butler, from the First district of Tennessee, be referred to the Com- 
 mittee of Elections, and that he be not sworn pending the investigation. 
 
 Mr. Brooks's amendment having been disagreed to, the substitute proposed 
 by Mr. Dawes was agreed to, and then the resolution as amended was agreed to — 
 yeas 117, nays 28. 
 
 Thereupon Messrs. Eldridge and Brooks offered separate resolutions that the 
 oath be not administered to Messrs. Stokes and Mullins until their cases had been 
 investigated. Neither Mr. Eldridge nor Mr. Brooks presented affidavits or asserted 
 on their responsibility as Members that the two persons in question had been dis- 
 loyal, but left it to be inferred from a copy of a letter in the case of one and an 
 extract from a speech in the case of another. 
 
 After debate, in the course of which it was recalled that affidavits were pro- 
 duced in the Kentucky cases, whde in this case a Member did not even make the 
 charges on his own responsibility, the House decided the resolutions in the negative. 
 
 Thereupon the oath was administered to all the Tennessee Members except 
 Mr. Butler. 
 
 On February 25, 1868,^ Mr. Henry L. Dawes, of Massachusetts, from the Com- 
 mittee on Elections, submitted a report in the case of Mr. Butler. This report 
 states that the only objection raised against Mr. Butler, who had a large majority 
 of the votes in the district, was disloyalty. It appeared that on December 14, 1861, 
 as a member of the secession legislature of Tennessee, he had voted for resolutions 
 pledging the State to the Southern confederacy. Mr. Butler admitted this, but 
 claimed that nevertheless he then was a Union man and continued to be afterwards. 
 There was also evidence tending to show that he remained in the legislature to be 
 of service to Union men, and that liis votes were understood not to express his 
 views. There was no doubt that after returning from the legislature he served 
 actively as a Union man. The committee conclude : 
 
 The evidence is very full on these points, and leaves no doubt on the mind of the committee of 
 the sincere loyalty of Mr. Butler, and that the several acts and votes in the legislature laid to his charge 
 as evidence of his disloyalty are capable of the explanation here given. 
 
 But the oath of office which the law requires Mr. Butler to take before he can bo admitted to a seat 
 as a Representative is in the following words: 
 
 "I, A. B., do solemnly swear (or affirm) that I have never voluntarily borne arms against the United 
 States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, 
 or encouragement to persons engaged in armed hostility thereto; that I have neither sought nor accepted, 
 nor attempted to exercise, the functions of any office whatever under any authority or pretended 
 authority in hostility to the United States; that I have not yielded a voluntary support to any pre- 
 tended government, authority, power, or constitution within the United States hostile or inimical 
 thereto. And I do further swear (or affirm) that, to the best of my knowledge and ability, I will 
 support and defend the Constitution of the United States against all enemies, foreign and domestic; 
 
 ■ Second session Fortieth Congress, House Report No. 18; 2 Bartlett, p. 461; Rowell's Digest, p. 
 224.
 
 464 PRECEDENTS OF THE HOUSE OF KEPRESENTATIVES. § 455 
 
 that I will liear true faith and allegiance to the same; that I take this obligation freely, without any 
 mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the 
 office on which I am about to enter. So help me God." 
 
 It will be observed that he is required to make oath that he has "neither sought nor accepted, nor 
 attempted to exercise, the functions of any office whatever under any authority or pretended authority 
 in hostility to the United States." In the opinion of the committee he can not truthfully so swear. 
 Whatever may have been his motives, the fact still stares him in the face that he took and accepted 
 the office which he will be compelled to swear that he has not taken and accepted. But, for the reasons 
 heretofore given, the committee recommends that, by a joint resolution, so much of the oath as thus 
 stands in the way of admission to a seat in this House of one truly loyal throughout the war may be 
 omitted in administering the oath of office to Mr. Butler. 
 
 It accordingly recommends the passage of the accompanying joint resolution. 
 
 This joint resolution came up for debate on March 4, 1868.' It provided that 
 Mr. Butler be admitted to his seat upon taking the usual oath to support the Con- 
 stitution of the United States, and upon taking all of the "test oath" excepting 
 the words: "That I have neither sought nor accepted, nor attempted to exercise, 
 the functions of any office whatever under any authority or pretended authority 
 in hostility to the United States." 
 
 After this joint resolution was reported it appeared that Mr. Butler had before 
 the war taken an oath to support the Constitution of the United States, and there- 
 fore that his case came within the third section of the fourteenth amendment to the 
 Constitution of the United States. There was some question as to whether this 
 amendment was yet in force. After debate,^ on March 5,^ the House voted to 
 recommit the joint resolution with instructions to the committee to report a bill 
 for the relief of Mr. Butler, and also a general bill for such persons as might have 
 theii disabilities removed by a two-thirds vote in accordance with section 3 of the 
 fourteenth amendment to the Constitution. On March 6 * two bills were introduced 
 in accordance with these instructions. They were debated at length '' in both 
 House and Senate, the question of Mr. Butler's loyalty and of the desirability of 
 modifying the requirements of the test oath being especially considered. The 
 bill relating to Mr. Butler passed both the House and Senate by two-thirds votes, 
 and it was understood at the time that a two-thirds vote was necessary.' 
 
 The law as finally perfected in Mr. Butler's case provided •? 
 
 That all legal and political disabilities imposed by the United States upon Roderick E. Butler, of 
 Tennessee, in consequence of participation in the recent rebellion, be, and the same are hereby, removed. 
 And the said Butler, on entering upon the discharge of the duties of any office to which he has been or 
 may be elected or appointed, instead of the oath prescribed by the act of July 2, 1862, shall take 
 and subscribe the following oath. [Here followed an oath to support the Constitution.] 
 
 This act was approved June 19, 1868, and on June 26 Mr. Butler appeared and 
 took the oath.* 
 
 ' Globe, p. 1662. 
 = Globe, pp. 1662, 1682-1693. 
 "Journal, p. 477; Globe, p. 1693. 
 •• Journal, p. 482. 
 
 5 Globe, pp. 1707, 1977, 2192, 2218, 2267, 2559, 3058, 3197, 3733, 3761. 
 " See remarks of Mr. Dawes, Globe, p. 3197. 
 , '15 Stat. L., p. 360. 
 
 ^ Journal, p. 935.
 
 § 456 THE OATH AS RELATED TO QUALIFICATIONS. 465 
 
 The general law approved July 11, 1868/ provided the same oath for persons 
 generally whose disabilities should be removed by a two-thirds vote of the two 
 Houses. 
 
 456. The North Carolina election case of Boyden v. Shober in the 
 Forty-first Congress. 
 
 A Member-elect, enrolled by the Clerk on his regnilar credentials, 
 did not vote until his disqualifications had been removed and he had 
 been permitted by the House to take the oath. 
 
 A State law requiring two ballot boxes to be kept at each polling 
 place was construed by the House as directory only; and in the absence 
 of fraud a neglect of the provision did not nullify the election. 
 
 On March 4, 1869,' at the organization of the House, the name of Mr. Francis 
 E. Shober, of North Carolina, appears on the Clerk's list of Members-elect. On 
 the yeas and naj"s on a motion to proceed to the election of Speaker his name appears 
 among those not voting. On the vote for Speaker he did not vote. The Journal 
 does not show affirmatively that he was not swoni in, but on a yea-and-nay vote 
 taken on March 5, after the Members had been sworn in, his name does not appear 
 at all, indicating that he had not been sworn in and that his name had been stricken 
 from the roll of Members. 
 
 On April 12, 1870,^ the President approved an act "to remove political dis- 
 abiUties from Francis E. Shober, of North Caroliaa." This act removed his disabili- 
 ties and prescribed the form of oath to be taken by him on being sworn into any 
 oiEce. 
 
 On April 13, 1870,^ Mr. George W. McCrary, of Iowa, presented the following 
 resolution, which was agreed to : 
 
 Resolved, That Francis E . Shober be sworn as a Member of this House from the Sixth district of North 
 Carolina and that upon taking the oath prescribed by the act passed at the present session of Congress 
 for his relief he shall be entitled to a seat in this House without prejudice to the right of Nathaniel 
 Boyden to contest the right thereto. 
 
 Mr. McCrary stated that Mr. Shober's credentials had been examined by the 
 Committee on Elections and found regular. 
 
 On Januan,' 16, 1871,^ Mr. McCrary submitted the report of the Committee on 
 Elections ia the contest of Boyden v. Shober. This report states that the sitting 
 Member admitted his inability to take the test oath, and did not offer to qualify 
 until after Congress had passed an act to relieve him from disabihty. Of course 
 the passage of the relieving act disposed of the contestant's allegations of disability. 
 After disposing of some considerations as to charges not sustained by the evidence, 
 the report says : 
 
 We are left, therefore, to the consideration of the first ground of contest, viz, that the election was 
 wholly void by reason of a failure to comply with the statutory provisions concerning the manner of 
 conducting the election. 
 
 ' 15 Stat. L., p. 85; Revised Statutes, sec. 1757. 
 2 First session Forty-first Congress, Journal, pp. 5, 8, 10. 
 s 16 Stat. L., p. 634. 
 
 * Second session Forty-first Congress, Journal, p. 610; Globe, p. 2648. 
 ' Third session Forty-first Congress. 
 5904— VOL 1—07 30
 
 466 PRECEDENTS OP THE HOUSE OF REPRESENTATIVES. § 457 
 
 It is said that the law of North Carolina, rightly construed, required that two ballot boxes should 
 have been kept at each poll, and that all ballots for Member of Congress should have been deposited in 
 one, and all ballots for electors for President and Vice-President in the other. 
 
 There seems to be some doubt as to the true construction of the statute of North Carolina, but assum- 
 ing that the construction contended for by contestant is correct, we are of opinion that the statute is 
 directory only, and that the failure to provide two ballot boxes, and the deposit of all the ballots in one 
 box, did not render the election void in the absence of fraud. If the ballots were freely cast, if they 
 •were honestly and fairly counted, and correctly returned, we should be unwilling to hold that a mere 
 mistake of the election oflicers, as to whether the ballots should go into one box or two, should be allowed 
 to defeat the will of the majority. 
 
 It is claimed that the certificate of election was not issued to contestee by competent authority; that. 
 it should have been issued by the sheriffs of the several counties comprising the district and not by the 
 governor. The law upon this subject is not cited in the record, and the point is not pressed. Indeed, 
 it has been rendered immaterial by the action of the House in accepting the credentials of contestee and 
 ordering him to 1)0 sworn into office thereon. We may remark, however, that the failure or refusal of the 
 proper officer to issue a certificate of election would only render it necessary for the House to go back to 
 the returns and poll books and ascertain, if possible, from these, or from any competent and sufficient 
 evidence, who was actually elected, and award the seat accordingly. 
 
 We are of opinion, therefore, "that the contestant has failed to sustain the points made by him in his 
 notice of contest, with the exception of the fifth point, which was sustained by the proof but which was 
 rendered immaterial by the act of Congress relieving contestee from liis disability. 
 
 Your committee are of opinion that the contestant has prosecuted this contest in good faith and with 
 reasonable cause, and that under the practice of the House in similar cases he is entitled to compensation 
 for the expenses incurred by him. 
 
 We therefore recommend the adoption of the accompanying resolutions: 
 
 Resolved, That Nathaniel Boyden is not entitled to a seat in this House as a Representative from 
 the Sixth district of North Carolina. 
 
 Resolved, That Francis E. Shober is entitled to retain his seat in this House as a Representative from 
 said district. 
 
 On January 24, 1871,' the two resolutions were agreed to without debate or 
 division. 
 
 457. In 1867 the Senate, having in view the test oath and the spirit 
 of the fourteenth amendment, excluded Philip F. Thomas for disloyalty. 
 
 In 1867 the Senate, upon the statement by a Member that there 
 were rumors affecting the loyalty of a Member-elect, referred the cre- 
 dentials before permitting the oath to be taken. 
 
 The right to add other qualifications to the three prescribed by the 
 Constitution was discussed fully in the Senate in 1867. 
 
 Discussion of the question as to whether or not the test oath of July 
 2, 1862, actually prescribed a new qualification for the Member. 
 
 On March 18, 1867,^ the credentials of Philip F. Thomas, Senator-elect from 
 Maryland, were presented in the Senate. Mr. Jacob M. Howard, of Michigan, 
 objected that there were rumors affecting the loyalty of Mr. Thomas and moved 
 that the credentials be referred to the Committee on the Judiciary. In the debate 
 attention was called to the fact that in the cases of Messrs. Stark and Patterson the 
 allegations were more specific; but fmally, on March 19, the credentials were referred 
 Avithout division. 
 
 1 Journal, p. 207; Globe, p. 698. 
 
 ^Election Cases, Senate Document No. 11, special session Fifty-eighth Congress, p. 333; first ses- 
 sion Fortieth Congress, Globe, pp. 171-lSO, 200.
 
 § 457 THE OATH AS RELATED TO QUALIFICATIONS. 467 
 
 On December LS Mi-. Reverdy Johnson, of Maryland, from the Committee on 
 the Judiciary, reported : 
 
 That they have taken the evidence submitted herewith, and that they find nothing sufficient, in the 
 opinion of the committee, to debar said Thomas from taking his seat, unless it be found in the fact of the 
 son of said Thomas ha\ang entered the military ser\'ice of the confederacy, and in the circumstances 
 connected with that fact or relating to it, and without the expression of an opinion in regard to this 
 point, they report the whole evidence to the Senate. 
 
 Mr. Johnson submitted the following resolution for consideration : 
 
 Resolved, That the Hon. Philip F. Thomas, Senator-elect from Maryland, be admitted to his seat on 
 his taking the oaths prescribed by the Constitution and laws of the United States. 
 
 458. On January 6, 1868,Hhe report was taken up, and the debate began as to 
 whether or not the act of Mr. Thomas in assisting liis son was an act giving aid 
 and comfort to the enemies of the Government. The test oath was also discussed 
 and its bearing on the question of qualifications, Mr. George F. Edmunds, of 
 Vermont, contending ^ that the Constitution did not definitely prescribe all the 
 qualifications, but that there existed the authority to impose other qualifications, 
 citing this passage: 
 
 The Senators and Representatives before mentioned, and the members of the several State legis- 
 latures, and all executive and judicial officers, both of the United States and the several States, shall be 
 bound by oath or affirmation to support this Constitution; but no religious test shall ever be required as 
 a qualification to any office of public trust under the United States. 
 
 A question was also raised as to whether or not the amendment to the Con- 
 stitution specifying the disability on account of treason, and providing for its removal 
 by a two-thirds vote of each House, had been ratified. 
 
 The report was debated at length on January 20-22, February 12-14, and 17-19.^ 
 Speaking on January 22, Mr. William Pitt Fessenden, of Maine, said * that it might 
 at times be necessary for the Senate to protect itself by refusing admission, but, he 
 continued : 
 
 We are exercising in any such case an extra-constitutional power. I think it exists as other powers 
 which we have asserted during the war exist; but, as I said before, they can only be exercised in very 
 extraordinary cases. As we stand now, it would be, in my judgment, dangerous in the extreme for 
 Congress to assume the power of excluding a man who was sent here with the proper credentials on mere 
 presimiptions or mere suppositions or mere ideas of what the man is. The ordinary question presented 
 to the Senate in such a case is with regard to his qualifications as prescribed by the Constitution itself; 
 and it is only within a very recent period that it has become necessary to go further, as we have gone 
 further and as we unquestionably had a right to do, and prescribe another qualification, if you choose 
 so to call it; that is to say, prescribe a rule of admission Ijy designating an oath to be taken which has 
 reference to the qualifications, or rather to the disqualifications, of the individual. I voted for that. 
 I think we had a right to pass it. * * * The question, however, as presented to us now, is beyond 
 that. It is whether we shall assume the responsibility of refusing to permit this gentleman to take the 
 oath. He professes himself willing to take it. We are called upon by many gentlemen who have 
 spoken here to say that he shall not be permitted to do it, because it is one of those cases where we are 
 called upon, outside of any constitutional provision and outside of any legal pro\'ision, to exclude this 
 man on the doctrine of self-protection, for no other, I think, can be adduced to support the proposition. 
 
 ' Second session Fortieth Congress, Globe, pp. 320-330. 
 
 2 Globe, p. 327. 
 
 3 Globe, pp. 632-635, 653-662, 678-686, 1144-1156, 1165-1177, 1205-1210, 1232-1243. 
 < Globe, pp. 684, 685.
 
 468 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 458 
 
 * * * The power which we have under the Constitution to judge of the qualifications of Members 
 of the body is not a mere arbitrary power to be exerted according to the will of the individuals who may 
 vote upon the subject. It ought to be a power subject to certain rules and founded upon certain prin- 
 ciples. So it was up to a very late period, until the rebellion. The rule simply was, if a man came 
 here and presented proper credentials from his State, to allow him to take the ordinary oath which we 
 all took, to support the Constitution, and be admitted, and if there was any objection to him to try that 
 question afterwards. 
 
 Speaking on February 13, Mr. Charles Sumner said:' 
 
 I do not stop to argue the question, if that amendment is now a part of the Constitution; for I would 
 not unnecessarily occupy your time, nor direct attention from the case which you are to decide. For 
 the present I content myself with two remarks: First, the amendment has already been adopted by 
 three-fourths of the States that took pajt in proposing it, and this is enough, for the spirit of the Consti- 
 tution is thus satisfied; and, secondly, it has already been adopted by " the legislatures of three-fourths 
 of the several States" which have legislatures, thus complying with the letter of the Constitution. 
 Therefore by the spirit of the Constitution, and also by its letter, this amendment is now a part of the 
 Constitution, binding on all of us. As such I invoke its application to this case. In face of this positive 
 peremptory requirement it is impossible to see how loyalty can be other than a "qualification." In 
 denying it you practically set aside this amendment. 
 
 But even without this amendment, I can not doubt that the original text is sufficiently clear and 
 explicit. It is nowhere said in the Constitution that certain specified requirements and none others 
 shall be "qualifications" of Senators. The word "qualifications," which plays such a part in this case, 
 occurs in another connection, where it is provided that "each House shall be the judge of the elections, 
 returns, and qualifications of its own members." What these "qualifications" may be is to be found 
 elsewhere. Searching the Constitution from beginning to end we find three "qualifications," which 
 come under the head of form, being (1) age, (2) citizenship, and (3) inhabitancy in the State. But 
 behind and above these is another "qualification," which is of substance, in contradiction to form only. 
 So supreme is this that it is placed under the safeguard of an oath. This is loyalty. It is easy to see 
 how infinitely more important is this than either of the others — than age, than citizenship, or than 
 inhabitancy in the State. A Senator failing in either of these would be incompetent by the letter of the 
 Constitution ; but the Republic might not suffer from his presence. On the other hand, a Senator failing 
 in loyalty is a public enemy, whose presence in this council Chamber would be a certain peril to the 
 Republic. 
 
 It is vain to say that loyalty is not declared to be a "qualification." I deny it. Loyalty is made 
 a "qualification" in the amendment to the Constitution; and then again in the original text, when in 
 the most solemn way possible it is distinguished and guarded by an oath. Men are familiarly said to 
 " qualify " when they take the oath of office, and thus the language of common life furnishes an authentic 
 interpretation to the Constitution. 
 
 But no man can be allowed to take the oath as Senator when, on the evidence before the Senate, 
 he is not competent. If it appear that he is not of sufficient age, or of the required citizenship or inhab- 
 itancy, he can not be allowed to go to that desk. Especially if it appear that he fails in the all-important 
 "qualification " of loyalty, he can not be allowed to go to that desk. A false oath, taken with our knowl- 
 edge, would compromise the Senate. We who consent will become parties to the falsehood. We shall 
 be parties in the offense. It is futile to say that the oath is one of purgation only, and that it is for him 
 who takes it to determine on his conscience if he can take it. The Senate can not forget the evidence; 
 nor can its responsibility in the case be swallowed up in any process of individual purgation. On the 
 evidence we must act and judge accordingly. The "open sesame" of this Chamber must be something 
 more than the oath of a suspected applicant. 
 
 According to Lord Coke, " an infidel can not be sworn " as a witness. This was an early rule which 
 has since been softened in our courts. But under the Constitution of the United States and existing 
 statutes a "political infidel can not be sworn" as a Senator. Whatever may be his inclination or motive 
 he must not be allowed to approach your desk. The country has a right to expect that all who enter 
 here shall have a sure and well-founded loyalty, above all question or "suspicion." And such I insist 
 is the rule of the Constitution and of Congress. 
 
 ' Globe, p. 1145.
 
 §458 
 
 THE OATH AS RELATED TO QUALIFICATIONS. 469 
 
 As if to place the questior. beyond all doubt, Congress by positive enactment requires that ever\' 
 Senator, before admis-sion to his seat, shall swear that he has ''voluntarily given no aid, countenance, 
 counsel, or encouragement, to persons engaged in armed hostility" to the United States. Here is little 
 more than an interpretation of the Constitution. The conclusion is plain. No person who has volun- 
 tarily given even "countenance" or "encouragement" to another engaged in the rebellion can be 
 allowed to take that oath. 
 
 Speaking on the same day, Mr. George F. Edmunds, of Vermont, said,' after 
 quoting the passage of the Constitution in relation to qualifications: 
 
 Senators will observe that these are negative statements. They are exclusive, every one of them. 
 It is not declaring who shall be admitted into the Senate of the United States. It is declaring who 
 shall not be eUgible to election to this body; that is all. It is the same as to the House of Representa- 
 tives and as to other officers, always in the negative, always exclusive, instead of in the affirmative 
 and inclusive. And upon what principle was this Constitution founded? Will lawj'ers here deny 
 that we have a right to look to the course of constitutional and parliamentan,- jurisprudence in that 
 countrj- from which we derive our origin and most of our laws to illustrate our own Constitution and 
 to enlighten us in this investigation? By no means. And what was that? The House of Commons 
 in Parliament, using the verj- language that in another section of the Constitution is used here, were 
 the exclusive judges of the elections, returns, and qualifications of their own members. What was 
 their constitutional power under that rtile? It was that they were the sole and exclusive judges, not only 
 of the citizenship and of the property qualification of persons who should be elected, but of everything 
 that entered into the personnel of the man who presented himself at the doors of the House of Commons 
 with a certificate of election for admission. And what were those rules? One was that an idiot could 
 not be a representative in the Commons; another was that an insane man could not be, and a variety 
 of other disqualifications, of which the Commons themselves alone were the sole and exclusive judges. 
 
 We declared in our Constitution that a certain class of persons should never, under any circum- 
 stances, whatever their other qualifications might be, be Senators of the United States; no alien should 
 be a Senator. Did it therefore follow that every citizen, male or female, black or white, rich or poor, 
 sane or insane, innocent or criminal, should be a Senator? Not by any means, I take it. We declared 
 then that no person should be a Senator who was not a citizen, who had not a certain qualification of 
 residence and of age, and there we stopped the rule of disqualification, leaving the common law exactly 
 where it stood before. And that common law, in the verj- language of its immemorial time, was inserted 
 in another section of the instrument, which declared that this body should be the judges of the elections, 
 returns, and qualifications of its members. And that very word "qualifications." by the known historj' 
 of jurisprudence, had the scope and signification that I have named; and that was, that it was the duty 
 of the body to apply it to the candidate, to keep itself ptire from association with criminals and 
 incompetent persons. 
 
 Speaking on Februarj' 18,^ Mr. Reverdy Johnson, of Maryland, said: 
 
 The only qualifications required by the Constitution are that the party to be chosen shall be at 
 least 30 years of age, etc. * * * Subject to these limitations, the legislature of the State has the 
 unrestricted right of choice. No department of this Government of the United States has any jiu-isdic- 
 tion over it. The Constitution, whether we regard its terms or its evident scope, as manifested by its 
 nature, creates a government of delegated powers, and that government has consequently no authority 
 to interfere. * * * 
 
 Mr. Johnson went on to substantiate this argument by reference to the clause 
 relating to expulsion. He also expressed the opinion that Congress had no authority 
 to pass the test oath. 
 
 In the course of the debate Mr. Sumner had proposed this as a substitute : 
 
 That Philip F. Thomas. Senator-elect from Maryland, can not be admitted to take the oath of 
 office required by the Constitution and laws, inasmuch as he allowed his minor son to leave the paternal 
 house to serve as a rebel soldier, and gave him at the time §100 in money, all of which was ''aid," 
 
 ■ Globe, p. 1149. 2Globe, p. 1237.
 
 470 PBECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 459 
 
 "countenance," or "encouragement" to the rebellion, which he was forbidden to give; and further, 
 inasmuch as in forbearing to disclose and make known the treason of his son to the President, or other 
 proper authorities, according to the requirement of the statute in such cases, he was guilty of misprision 
 of treason as defined by existing law. 
 
 Mr. Sumner withdrew this, however, it being urged that Mr. Thomas's conduct 
 as a Cabinet officer in 1860 afforded more certain grounds for action. 
 
 Mr. Roscoe Conkling, of New York, proposed the following substitute: 
 
 That, in the judgment of the Senate, Philip F. Thomas, Senator-elect from Maryland, can not with 
 truth take the oath prescribed by the act of Congress approved July 2, 1862, and that therefore he be 
 not allowed to take said oath, 
 
 but withdrew it, after commenting on the variance of opinion as to whether the 
 test oath actually prescribed a new qualification or not.' 
 
 The question being then taken on the resolution originally proposed by Mr. 
 Johnson, it was disagreed to — yeas 21, nays 28.^ 
 
 Then, by a vote of yeas 27, nays 20, the Senate agreed to the follo\ving, offered 
 by Mr. Charles D. Drake, of Missouri: 
 
 Resolved, That Philip F. Thomas, having voluntarily given aid, countenance, and encouragement 
 to persons engaged in armed hostility to the United States, is not entitled to take the oath of office as 
 a Senator of the United States from the State of Maryland, or to hold a seat in this body as such Senator; 
 and that the President pro tempore of the Senate inform the governor of the State of Maryland of the 
 action of the Senate in the premises. 
 
 459. The Georgia case of Wimpy and Christy in the Fortieth Con- 
 gress. 
 
 In 1868 the House denied the oath to two persons who appeared with 
 conflicting credentials which cast doubt on the right of either to the seat. 
 
 A question as to whether a State law may give to the minority can- 
 didate the seat for which the majority candidate is disqualified. 
 
 On December 7, 1868,' the Speaker laid before the House credentials from the 
 governor of Georgia, certifying John A. Wimpy as entitled to a seat in the House. 
 These credentials showed that John H. Cliristy had received the highest number 
 of votes in the Sixth district, but, it appearing to the satisfaction of the governor 
 that said Christy was ineligible under the fourteenth amendment to the Constitu- 
 tion, and the said Wimpy having received the next highest number of votes, the gov- 
 ernor had commissioned Wimpy, relying on a law of Georgia providing that when 
 the person receiving the highest number of votes for any office should be ineligible 
 the person receiving the next highest number, and being eligible, should be com- 
 missioned. 
 
 At the same time Mr. James A. Brooks, of New York, presented credentials 
 signed by Major-General Meade, commander of the military district including 
 Georgia,^ certifying the election of Mr. Christy. Mr. Brooks stated that this cer- 
 
 ' Globe, pp. 1263, 1264. 
 2 Globe, p. 1271. 
 
 ^ Third session Fortieth Congress, Jomnal, p. 8; Globe, p. 7. 
 
 * The reconstruction act provided for the military districts and the political reconstruction of the 
 States under military supervision. 14 Stat. L., p. 428; 15 Stat. L., p. 73.
 
 § 459 THE OATH AS RELATED TO QUALIFICATIONS. 471 
 
 tificate was similar to that on which other Members from Georgia had been seated. 
 Mr. Brooks charged that Mr. Wimpy had been a Confederate soldier. 
 
 Both certificates were referred to the Committee on Elections, and neither 
 claimant was sworn in. 
 
 On JanuarA' 15' Mr. Henry L. Dawes, of Massachusetts, from the Committee 
 on Elections, submitted a report. They foimd that the commission of Mr. Christy 
 was signed by General Meade, under whose order the election had been held. That 
 of ilr. Wimpy was signed by Governor Bullock, who was at the same election 
 chosen governor and assumed the duties of the office on relinquishment of command 
 by General Meade. 
 
 The committee found that Mr. Christy, by his own admission, had given "aid, 
 countenance, covmsel, and encouragement to persons engaged in armed hostility 
 to the Government," and in accordance with the precedent in the case of John Y. 
 Brown was not qualified to hold a seat as Representative from the State of Georgia. 
 This appeared independently of any question as to ineligibility under the fourteenth 
 amendment. 
 
 Examining the case of Mr. Wimpy, the committee conclude: 
 
 The committee was of opinion that at the time of this election Mr. Wimpy, like Mr. Christy, could 
 not take the oath of office because he had "voluntarily given aid, countenance, counsel, and encourage- 
 ment to persons engaged in armed hostility to the Government of the United States." If, therefore, 
 the provision in the statute of Georgia included Members of Congress and also this cause of ineligibility, 
 still Mr. Wimpy could not avail himself of it because of his own ineligibility at the time of the election. 
 Nor would a subsequent removal of disabilities by act of Congress give Mr. Wimpy the benefit of this 
 act, because the act refers to the eligibility at the time of the election; and if such an act could bring 
 Mr. Wimpy within its provisions, such an act could likewise take Mr. Christy out of its provisions, and 
 upon its passage he would, with a majority of the votes, be instantly entitled to the seat. 
 
 This conclusion, arrived at unanimously by the committee, renders it unnecessary to determine 
 other questions raised in this case which would otherwise render it at least very doubtful whether' 
 under any circumstances, Mr. Wimpy, with a majority of 100 votes against him, could, by force of the 
 law of Georgia already cited, become entitled to the scat. The committee therefore does not find it 
 necessary to express an opinion whether the statute was intended to affect other than State officers, or 
 could, if intended, include Representatives in Congress, or whether aiding the late rebellion was one 
 of the causes of ineligibility embraced in the "foregoing rules" specified in the one hundred and twenty- 
 sixth section of the act, which was itself enacted long before the rebellion broke out; but, for the 
 reasons already specified, reports adversely on the claim of Mr. Wimpy to the seat. It therefore 
 recommends the adoption of the accompanying resolutions: 
 
 Resolved, That J. H. Christy, having voluntarily given aid, countenance, counsel, and encourage- 
 ment to persons engaged in armed hostility to the United States, is not entitled to take the oath of 
 office as a Representative in this House from the Sixth Congressional district of Georgia or to hold a 
 seat therein as such Representative. 
 
 Resolved, That John A. Wimpy, not having received a majority of the votes cast for Representative 
 in this House from the Sixth Congressional district of Georgia, is not entitled to a seat therein as such 
 Representative. 
 
 Resolved, That the Committee of Elections be discharged from the further consideration of the 
 question of removing political disabilities from John H. Christy, and that the same be referred to the 
 Committee on Reconstruction. 
 
 On January 28,^ the report was debated in the House, rather in reference to 
 
 * House Report Xo. 8; 2 Bartlett, p. 464; Rowell's Dieest, p. 225. 
 2 Globe, pp. 675, 677.
 
 472 
 
 PKECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 § 460 
 
 its relation to the question of reconstruction than on the merits of the respective 
 claimants, and on that day was postponed until the third Tuesday of February. 
 It was not taken up on that day, or again. So neither claimant was admitted. 
 
 460. The Kentucky election case of Zeigler v. Rice in the Forty-first 
 Congress. 
 
 In 1869 John M. Rice, challenged on account of alleged disloyalty, 
 was permitted by the House to take the oath pending examination of the 
 charges. 
 
 In 1869 the Elections Committee proposed to exclude for disloyalty 
 one who had already been sworn in; and although the committee were 
 reversed on the facts, the propriety of the proceeding was not questioned. 
 
 In a case somewhat inconclusive it was held that notice of disqualifica- 
 tion given seasonably to the electors did not modify the rule against seat- 
 ing a minority candidate. 
 
 On March 4, 1869/ at the organization of the House, the name of ^Ir. John M. 
 Rice, of Kentucky, was on the roll presented by the Clerk. When the Members-elect 
 were taking the oath objection on ground of disloj^alty was made to Mr. Rice, and 
 he stood aside. On the next day the House agreed to this resolution: 
 
 Resolved, That Boyd Winchester and John M. Rice, Representatives-elect from the State of Ken- 
 tucky, be now sworn in, and the papers filed against their admission be referred to the CJommittee of 
 Elections, when appointed, with directions to report as soon as practicable. 
 
 Accordingly Messrs. Winchester and Rice were sworn in and took their seats. 
 
 On June 30, 1870,^ Mr. R. R. Butler, of Tennessee, from the Committee on 
 Elections, submitted the report of the committee on the case of Zeigler v. Rice. The 
 contestant alleged that sitting Member was ineligible under section 3 of the four- 
 teenth amendment to the Constitution. 
 
 A question of law and a question of fact were involved : 
 
 (a) The question of law arose from the following specification in contestant's 
 notice of contest: 
 
 That notice of this disqualification on your part was given publicly to the voters of the district prior 
 to the said election held on the 3d day of November, 1868, and during the time you stood as a candidate 
 before the people; that this disqualification existed at that time; and that by reason thereof all votes 
 cast for j'ou were and are illegal and void; wherefore I was duly elected by the legal vote of said district 
 on said 3d day of November last, and am lawfully entitled to and claim the seat in the Forty-first (Congress 
 of the United States as Representative for said Ninth district of Kentucky. 
 
 The majority in their report say they are convinced that sittuig Member is 
 ineligible, "but do not agree with contestant that as contestee was ineligible the 
 candidate who was eligible is entitled to the seat." 
 
 The views of the minority, presented by Mr. Albert G. Burr, of Illinois, say: 
 
 The undersigned concurs with the majority of the committee in the opinion that in no possible aspect 
 of this case can it be pretended that the contestant Zeigler is entitled to the seat as the Representative of 
 the Ninth Congressional district of Kentucky. There is no dispute on that point. The contestant 
 himself does not claim that he received a majority of the votes cast, and no just man can dissent from the 
 conclusion of the committee that he has no shadow of title whatever to the seat. 
 
 ' First session Forty-first Congress, Journal, pp. 9, 13; Globe, pp. 6, 13. 
 
 ^ Second session Forty-first Congress, House Report No. 107; 2 Bartlett, p. 871.
 
 § i61 THE OATH AS RELATED TO QCALIFICATIONS. 473 
 
 (b) The question of the qualification of Mr. Rice was a question of fact. The 
 majority of the committee, from the testimony presented, concluded that he had 
 been disloyal and had given aid and comfort to the enemy. Therefore they pro- 
 posed the following: 
 
 Resolved, That the Hon. John M. Rice is disqualified by the third section of the fourteenth amend- 
 ment to the Constitution of the United States from holding a seat in Congress, and that the seat now 
 occupied by him as a Representative from the Xinth district of Kentucky, in the Forty-first Congress, is 
 hereby declared vacant, and that the Speaker of the House of Representatives notify the governor of the 
 Commonwealth of Kentucky that such vacancy exists. 
 
 The minority construed the evidence as entirely failing to show Mr. Rice dis- 
 qualified, and recommended the following: 
 
 Resolved, That Hon. John M. Rice is justly entitled to his seat as Representative in the Forty-first 
 Congress from the Ninth district of the State of Kentucky. 
 
 The report was debated on July 11,' the debate being confined entirely to the 
 question of fact, and the proposition to exclude a Member who had already taken 
 the oath and his seat was not discussed. As to the question of fact, Members who 
 had known sitting Member at the time of the alleged disloyalty raised a question as 
 to the conclusions which the majority had drawn from the testimony. 
 
 Finally the question recurred on the substitute proposed by the minority, and 
 it was agreed to \vithout division. Then the resolution as amended was agreed to. 
 
 So the report of the majority of the committee was overruled, and Mr. Rice 
 retained the seat. 
 
 461. The Virginia election case of Tucker v. Booker, in the Foi-ty- 
 first Congress. 
 
 In 1870 no one of the Members-elect from Virginia was seated until 
 the credentials were reported on by a committee and the House had 
 acted. 
 
 A Member-elect whose loyalty was impeached was permitted to take 
 the oath; and after that the House was reluctant to take action in his 
 case. 
 
 A question as to whether or not a Member who is disqualified, but 
 has been permitted to take the oath, may be excluded by majority vote. 
 
 A question relating to a Member's right to his seat being laid on the 
 table, the Member continues in his functions. 
 
 At the beginning of the second session of the Forty-first Congress the cre- 
 dentials of all the Members-elect from the State of Virginia were referred to the 
 Committee on Elections, and the claimants were not sworn in until the committee 
 reported. Against Mr. George W. Booker charges of disloyalty were made, but 
 the committee on Februarj- 1, 1870,^ reported a recommendation that the oath be 
 administered to him in accordance with the precedent made by the House in the 
 case of Mr. McKenzie. There was much discussion over this motion. The com- 
 mittee had not examined the question of loyalty, and strong allegations of dis- 
 
 ' Journal, pp. 1199, 1200, 1213; Globe, pp. 5442-5447. 
 
 ' Second session Forty-first Congress, Journal, p. 244; Globe, pp. 947-950.
 
 474 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 461 
 
 loyalty were made against Mr. Booker. Finally, by a vote of yeas 89, nays 72, it 
 was determined that the oath should be administered, and Mr. Booker was accord- 
 ingly sworn in. 
 
 On March 22, 1870,' Mr. George M. Brooks, of Massachusetts, from the Special 
 Committee of Elections, presented the report in the case of Tucker v. Booker. The 
 returns showed Mr. Booker elected by a plurality of 3,533 over contestant. The 
 groimds of contest related entirely to the loyalty of sitting Member, it being charged 
 that he was disqualified because of section 3 of the fourteenth amendment to the 
 Constitution, and also that he was unable to take the oath of July 2, 1862. 
 
 The committee found from the testimony of one witness that Mr. Booker had 
 admitted that he voted for the Virginia ordinance of secession. 
 
 The remaining testimony was of a documentary character, setting forth facts 
 such as are included in this portion of the report: 
 
 From the evidence it appears that on July 14, 1856, said Booker, having been elected a justice 
 of the peace for the county of Henry and State of Virginia for the term of four years from the 1st day 
 of August then next, took the oaths of office prescribed by law, and the oath to support the Consti- 
 tution of the United States; that acting under this commission, he performed the duties of justice 
 of the peace, and on July 9, 1860, having been again elected a justice of the peace for the term of four 
 years from the Ist day of August then next, he took the several oaths required by law, and on the 10th 
 day of September, 1860, he was elected presiding justice of the court, and that he continued to exercise 
 the duties of such magistrate during the rebellion. 
 
 The particular acts of disloyalty that are relied upon by the contestant, and which appear to be 
 proved and are not denied by the the contestee, are as follows: That at a county court held for Henry 
 County, at the court-house, on May 13, 1861, said Booker met with other justices and voted to accept 
 the provisions of an act of the general assembly passed January 19, 1861, authorizing the county courts 
 to arm the militia of their respective counties, and to provide means therefor, pursuant to a resolution 
 of the convention of Virginia "recommending the county courts to levy or raise, by issuing bonds, 
 a sufficient amount of money to equip and arm such volunteers as may be raised within the limits of 
 their respective counties;" it was also at said court "ordered that ten thousand dollars be raised by 
 levy on all the lands and all other subjects liable to tax and levies in said county." 
 
 That at a county court held July 8, 1861, said Booker being present as presiding justice, WQliam 
 Martin was appointed by said court as an agent on the part of Henry County, "to visit the volunteer 
 companies in the service and report to the next court the wants and general condition of said com- 
 panies, with a view to making provision by the court for the relief of their necessities." At a court 
 held September 9, 1861, Samuel H. Haviston was appointed an agent for the county to purchase full 
 winter equipments for the four volunteer companies in the service. 
 
 At a court held October 15, 1861, said Booker was appointed an agent for the county "to repair 
 to the encampments of the several companies from said county and ascertain the wants of each member 
 in clothing, and report thereof to the next court." And at a court held November 12, 1861, said Booker 
 made a report in writing, which is annexed hereto and marked "A." 
 
 The sitting Member did not deny the facts presented against him, but claimed 
 that he was from the outset opposed to secession; that he was always a Union 
 man, and that he held the offices he did in order to protect other Union men and 
 save himself from conscription. The testimony of other witnesses convinced the 
 committee of this, and they say: 
 
 Although technically said Booker may have seemed to have ' ' given aid and comfort to the enemies " 
 of the United States by performing the duties of his office, yet the committee is convinced that he was 
 during the whole rebellion, and to the present time has been, a sincere Union man, and that the acts 
 
 ' House report No. 41; 2 Bartlett, p. 772.
 
 § 461 THE OATH AS RELATED TO QUALIFICATIONS. 475 
 
 by him performed to which objection is taken are in contravention of tlie letter but not the spirit of 
 the third article of the fourteenth amendment to the Constitution of the United States. The committee 
 therefore holds that said Booker is not ineligible under the same. 
 
 The committee is, however, of the opinion that if no action had been taken by the House upon the 
 claim of said Booker for a seat, it would have reported that having accepted and exercised the functions 
 of an office under the Confederate government, he could not take so much of the oath prescribed by the 
 act of July 2, 1862, as declares that he has "neither sought nor accepted, nor attempted to exercise the 
 functions of any office whatever, under any authority or pretended authority in hostility to the United 
 States," without being relieved from the disabilities imposed by said act, and that it should have recom- 
 mended that so much of said oath above recited should be omitted in administering the oath of office 
 to said Booker. 
 
 But the House, on the 1st day of February last, upon representation being made that said Booker 
 was loyal, voted that he was entitled to his seat, and he took the oath prescribed by the act of July 2, 
 1862, and is now a sitting Member of this House. The committee is of the opinion that this vote was 
 an indication of the sense of the House that the fact of his loyalty was the question to be settled, and 
 this being determined in his favor, he was entitled to his seat. The committee also believes that said 
 Booker, conscious of his loyalty, did not consider that he was debarred from taking said oath, holding 
 the office under the circumstances and for the purposes he did so hold it; that he did not deem it 
 was the spirit, intent, or meaning of the same to apply to one who was truly loyal and a Union man 
 through the rebellion, and has been so to the present time. 
 
 The committee therefore, believing said Booker to have taken said oath honestly, considering that 
 he was right in so doing, and being desirous of carrying out the will of a large plurality of the voters 
 in his district, and the declared wish of the House as expressed by their vote of February 1, hereby 
 recommends the passage of the following resolution: 
 
 Resolved, That the Hon. George W. Booker is entitled to retain his seat as a Member of this Congress 
 from the Fourth district of the State of Virginia. 
 
 The report was offered in the House on March 22,' and thereupon Mr. Luke P. 
 Poland, of Vermont, proposed a preamble reciting the facts as to sitting Member's 
 acts, and a resolution "That George W. Booker is disqualified from holding a seat as 
 a Member of this House." 
 
 On July 5^ the report was debated in the House. ^Ir. Henrj" L. Dawes, of 
 Massachusetts, raised a question as to how Mr. Booker could be excluded, since he 
 had already been admitted to a seat and taken the oath. Mr. Dawes did not see 
 how he could be removed except by expulsion. Mr. Poland seemed to regard the 
 taking of the oath under the circumstances as temporary, and intimated that a 
 majority vote, in his opinion, might exclude the sitting Member. 
 
 The remainder of the debate referred largely to the record of Mr. Booker and 
 the question of duress as an excuse for his acts. 
 
 Finally Mr. Dawes moved to lay the whole subject on the table. 
 
 A question being raised as to the effect of such a motion, if carried, the Speaker 
 pro tempore said: 
 
 It is hardly a parliamentary question for the Chair to decide. The Chair is under the impression, 
 however, that it would leave the case just where it was before it was referred to the Committee on 
 Elections. 
 
 The motion to lay on the table was then agreed to — ayes 99, noes 24. 
 On July 6 ^ Mr. Booker is recorded as voting, and thereafter to the end of the 
 session. 
 
 ' Globe, p. 2135. ^ Journal, p. 1149; Globe, pp. 5195-5199. = Journal, p. 1155.
 
 476 PRECEDENTS OF THE HOUSE OF EEPKESENTATIVES. § "^62 
 
 462. The Virginia election case of Whittlesey v. McKenzie in the 
 Forty-first Congress. 
 
 In 1870 the House voted to administer the oath to a Member-elect 
 on his correct prima facie showing, although a question as to his quali- 
 fications was pending before the Elections Committee. 
 
 In 1870, after a Member-elect had been permitted to take the oath, 
 the House took up and decided a contest based on his alleged disloyalty, 
 deciding that the evidence did not show his disqualification. 
 
 An instance wherein the House decided on its own initiative an elec- 
 tion case pending before the Committee on Elections. 
 
 At the opening of the second session of the Forty-first Congress the credentials 
 of all the claimants to seats from Virginia were referred to the Committee on Elec- 
 tions for examination, pending the administration of the oath. On January 31, 
 1870,' Mr John A. Bingham, of Ohio, not a member of the Elections Conmiittee, 
 offered the following resolution: 
 
 Resolved, That Hon. Lewis McKenzie be now sworn in as a Member of this House from the Seventh 
 district of Virginia, he having the prima facie right thereto; but without prejudice to the claim of Charles 
 Whittlesey, contestant to such seat, or to his right to prosecute his claim thereto. 
 
 Mr. Halbert E. Paine, of Wisconsin, chairman of the Committee on Elections, 
 stated that Mr. McKenzie's credentials were in the same form as those of the other 
 Virginia claimants, who had already been allowed to take the oath. But there 
 was a resolution of the House providing that whenever either contestant should 
 allege that the other claimant was unable to take the oath, the Committee on Elec- 
 tions should inquire into the charge and report before the oath should be admin- 
 istered. The charge had been made in this case, and an investigation had been 
 made. The tcstmiony was now in the hands of the printer, and until it was printed 
 and examined the committee could not arrive at a conclusion as to whether or not 
 Mr. McKenzie was entitled to take the oath. Mr. Paine admitted, however, that 
 the House, having all control over the subject, might permit Mr. McKenzie to take 
 the oath, although the order of the House precluded the Committee on Elections 
 from recommending it at this stage. 
 
 After debate as to Mr. McKenzie's loyalty, the resolution was agreed to without 
 division. 
 
 Mr. McKenzie was accordingly sworn in. 
 
 On May 24, 1870,^ Mr. John C. Churchill, of New York, from the Subcommittee 
 on Elections, submitted a report in the case of Whittlesey v. McKenzie. Contestant 
 raised no question as to the validity of the election or the correctness of the count, 
 but claimed that sitting Member was guilty of acts in the early part of the year 
 1861 which made him ineligible under the third section of the foiuteenth article 
 of amendments to the Constitution, and also made it impossible that he should 
 truthfully take the oath of July 2, 1862. 
 
 The contestant gave facts in support of his contention: 
 
 1 . On the 21st day of January, 1861, the house of delegates of Virginia, of which the sitting Member 
 was then a member, adopted, by a unanimous vote, 108 delegates voting, the following resolution: 
 
 "Resolved by the general assembly of Virginia, That if all efforts to reconcile the unhappy difference 
 
 ' Second session Forty-first Congress, Journal, p. 239; Globe, pp. 917-918. 
 2 House Report No. 75; 2 Bartlett, p. 74G.
 
 § 462 THE OATH AS RELATED TO QUALIFICATIONS. 477 
 
 existing between the two sections of the country shall prove to be abortive, that, in the opinion of the 
 general assembly, everj' consideration of honor and interest demand that Virginia shall unite her destiny 
 with the slaveholding States of the South." 
 
 The sitting Member. Mr. McKenzie, was present and voted for this resolution. 
 
 2. On the 14th day of March, 1861, the senate of Virginia passed, with an amendment, and returned 
 to the house of delegates for their concurrence, '"An act to authorize the issue of treasury notes." A 
 motion was made to lay the bill and amendment on the table. For this motion the sitting Member 
 voted, and in support of it made a speech, of which the following is a report which appeared in the 
 Daily Richmond ^\'hig of March 15, 1861, and the substantial correctness of which is not disputed: 
 
 "During the debate, Mr. McKenzie said the House had been in session sixty-six days, and, until 
 a few days ago, he had supposed the bill had become the law of the land. He had voted for this bill 
 the time he did because he had believed it was important to the public safety. We had just voted 
 that, so far as Virginia was concerned, we would not permit the coercion on the part of the Federal 
 Government of any of the Southern States. Having come to this conclusion, he, for one, was ready to 
 vote means to arm the State, if need be. 
 
 "Does anybody presume that 170,000 voters of Virginia, a commonwealth extending from the 
 Potomac to the Ohio River, a better armed State than any five States in the Union, are acting from 
 any fear of the North? Virginia is not afraid. WTien the convention comes to a decision, and whatever 
 they do, and it is ratified by the people, she will take her position, and, if necessary, fight. I think the 
 opportunity ought to be given to amend, if necessary; and I shall, therefore, vote to lay it on the table." 
 
 The motion to lay on the table was defeated by a large majority, and the amendment of the 
 Senate was then concurred in and the bill passed by a unanimous vote, the sitting Member voting in the 
 afiirmative. 
 
 3. On the 2d of May, 1861, the sitting Member, being then a member of the common council of the 
 city of Alexandria, voted in favor of an appropriation of $200 each to the Emmot Guards and to the 
 Irish volunteers, to aid in equipping these companies, which soon after entered the Confederate service. 
 
 4. On April 30 and May 6, 1861, a quantity of oats belonging to sitting Member were taken by the 
 military authorities of Virginia and were charged to the State. 
 
 The committee, examinino: these charges at length, found that the only gov- 
 ernment to which ilr. McKenzie yielded support at the times in question was that 
 of the State of Virginia, but that Virginia did not ratify the ordinance of secession 
 until May 23, 1S61. Since then Mr. McKenzie had been an outspoken Union man. 
 It could not be pretended that he had yielded support to any government hostile 
 to the United States. 
 
 Therefore the onh' question was as to whether or not he had given "aid or 
 comfort" to the enemies of the United States. The committee found from an 
 examination of the testimony and facts, in relation to all the circumstances, that 
 the charges of the contestant were not sustained. They also found: 
 
 A good deal of evidence in this case was taken to show that the sitting Member before, during, and 
 after the occurrence of the acts charged as making him ineligible was known and accepted generally 
 by all, both the loyal and the disloyal people of his acquaintance in Alexandria and vicinity, as a friend 
 of the Union cause. It is well argued by the contestant that this can not be received as a defense for 
 two reasons: First, that the sitting Member has served no answer in this case, as required by the laws, 
 and therefore can not set up in the evidence any matter by way of defense to the charges of the con- 
 testant except such as may tend to negative the charges; and, second, that if the acts make him ineligible, 
 neither prior, subsequent, nor contemporaneous loyalty could make him eligible or do more than fur- 
 nish a ground for him to ask to be relieved from his disabilities. But this evidence, though not receivable 
 as a defense, is properly to be received, as enabling us the better to understand the acts themselves and 
 to determine their true character. 
 
 Therefore : 
 
 We conclude that nothing shown in the evidence in this case makes the sitting Member ineligible 
 under the fourteenth article of amendments to the Constitution of the United States or debars him
 
 478 PRECEDENTS O^ THE HOUSE OF REPRESENTATIVES. § 463 
 
 from taking the oath prescribed by law, and this makes it unnecessary for us to consider the question 
 very ably presented by the contestant in his argument as to the effect of such ineligibility, if shown, 
 upon votes cast for the sitting Member; and we conclude with recommending to the House the adoption 
 of the following resolutions: 
 
 Resolved, That Charles Whittlesey is not entitled to a seat as a Member of the Forty-first Congress 
 from the Seventh Congressional district of Virginia. 
 
 Resolved, That Lewis McKenzie is entitled to a seat as a Member of the Forty-first Congress from 
 the Seventh TJongressional district of Virginia. 
 
 On June 17' the resolutions were agreed to by the House without debate or 
 division. 
 
 463. The Senate election case of Joseph C. Abbott in the Forty- 
 eighth Congress. 
 
 A Senator-elect being disqualified, the Senate, after elaborate exam- 
 ination, decided that the person receiving the next highest number of 
 votes was not entitled to the seat. 
 
 On March 7, 1871,^ a memorial was presented in the Senate from Joseph C. 
 Abbott, who claimed to have been legally elected a Senator from North Carolina. 
 This memorial was referred to the Committee on Privileges and Elections, and 
 on February 28, 1872, Mr. John A. Logan, of Illinois, submitted from that committee 
 the following report: ^ 
 
 The Committee on Privileges and Elections, to whom was referred the memorial of Joseph C. Abbott, 
 claiming to be entitled to a seat in this body as a Senator from North Carolina, for the term commencing 
 on the 4th day of March, A. D. 1871, respectfully submit the following report: 
 
 Article I, section 5, of the Constitution of the United States provides that — 
 
 "Each House shall be the judge of the elections, returns, and qualifications of its own members." 
 
 The duty which devolves upon the Senate in deciding cases that arise under this clause of the 
 
 Constitution is in the nature of a judicial proceeding, and the cases must be decided upon the evidence 
 
 presented and in accordance with legal principles as established by former parliamentary and judicial 
 
 precedents and decisions. 
 
 Examining the facts, the committee found as to the election by the legislature: 
 
 That the number of members present at the time and so voting constituted a quorum of each house 
 of the legistature, the constitution of North Carolina providing that "neither house shall proceed upon 
 public business unless a majority of all the members are actually present," the numbers so present amount- 
 ing to a majority of all the members. 
 
 On the following day the two houses, in the usual form, declared that Vance had received a majority 
 of the votes cast in both houses and that he was duly elected as such Senator for said term of six years 
 commencing on the 4th day of March, 1871. 
 
 It is also further in evidence that said Vance was not on said second Tuesday of November, 1870, and 
 at no time since has been, qualified to serve as such Senator, owing to disability imposed by the fourteenth 
 article of amendment of the Constitution. 
 
 It is averred that the members of the legislature of North Carolina so voting for Vance, at the time 
 their votes were cast, had notice of the ineligibility of Vance, but no evidence on this point has been 
 presented to the committee, the memorialist relying upon the assumption that this was a matter of 
 public notoriety. 
 
 It appears, therefore, that Abbott rests his claim to the seat solely upon what he assumes to be the 
 legal result of the conceded ineligibility of Vance, who, although receiving a majority of the votes, is not 
 entitled to take the oath of office or hold the seat. He assumes that it is a conclusion of law that if the 
 
 ' Journal, p. 1026; Globe, p. 4519. 
 
 ^Election Cases, Senate Document No. 11, special session, Fifty-eighth Congress, p. 396. 
 
 ^ Second session Forty-eighth Congress, Senate Report No. 58.
 
 § 463 THE OATH AS RELATED TO QUALIFICATIONS. 479 
 
 candidate who has receivea the hignest number of votes is ineligible and that ineligibility was known 
 to those who voted for him before casting their votes, that the votes so cast for him are void, and should 
 be considered as nullities and as though they never had been cast; and consequently the candidate 
 receiving the next highest number of votes is elected. 
 
 In support of this view of the case the memorialist has called the attention of the committee to a 
 large number of English authorities bearing on this question. While the committee make no question 
 as to the general tenor of the decisions to which attention has been called, yet it is evident that these are 
 based upon a verj' different rule from that adopted in our country. To show that this rule is different, 
 the committee would refer to the following authorities, which are cited in the very able report of Mr. 
 Dawes from the Committee on Elections, in the case of Smiths. J. Y. Brown (Report of Committees, No. 11 
 second session Fortieth Congress.) * * * 
 
 After citing the authorities in favor of seating a minority candidate, when an 
 election had been made after due notice of disabiUties, the report continues: 
 
 But is such a principle applicable in a government based upon the theory that the power emanates 
 from the people? In the British Government the cai^e is exactly the reverse, as there the theory is that 
 the power originates with the monarch, and the privileges allowed the people to select representatives 
 are, under that theory', considered as conceded and not as inherent rights. But this Government rests 
 upon an entirely different basis. Here the power originates with the people, and that which the Govern- 
 ment is authorized to exercise is conceded by the people. The right to designate who shall exercise this 
 power has never been delegated. The method by which this choice shall be made known consistent 
 with this theory can never be otherwise than by giving the majority or plurality the right to decide. 
 Any attempt to restrict the right of the voter is an attempt to invade that right; therefore the theory that 
 casting a vote knowinglj- for an ineligible candidate is in the nature of a crime which may be punished 
 by ignoring the act of the majority and recognizing the act of the minority is in direct conflict with 
 that most sacred right which the people of this Government have always guarded with jealous care. 
 Such a rule is consistent with the theorj' of the British Government, as it affords one means of preventing 
 the power from passing into the hands of the people; but it is directly at variance with the theory of our 
 Government, as it affords one means by which that right which the people have of selecting their repre- 
 sentatives may be abridged. 
 
 While, therefore, the general tenor of the English authorities to which he refers us is admitted to be 
 as claimed by the memorialist, yet we do not conceive such a rule to be applicable to and consistent with 
 the political institutions of the United States, where the right of the majority to govern and the Govern- 
 ment is based upon the consent of the governed is one of the first political lessons to be learned. 
 
 There is also another very strong reason why the English authorities relied upon by the memorialist 
 are not applicable in the present case, even if the spirit and fundamental idea of our institutions were 
 insufficient to show this. 
 
 The third section of the fourteenth amendment of the Constitution, which imposes the disabilities 
 in question, also contemplates and provides for the removal thereof by Congress. There is no such 
 feature in the English law. The English cases are, therefore, based upon a very different state of facts 
 from those that exist in this country, and are not precedents for this case. 
 
 It is difficult to conceive how the Constitution could grant authority to Congress to remove the 
 disabilities under which an individual who has been elected is laboring, and allow him to take his seat 
 as a Member, and yet at the same time embrace the idea that such an election is wholly void and the 
 votes cast for him nullities. Yet Congress by its action in numerous instances has given the first con- 
 struction to this clause of the Constitution, and if the memorialist in this case shall be admitted to his 
 seat the Senate will have to give the second construction. 
 
 After citing at length the judicial decisions and legislative cases against the 
 English theory, the report continues: 
 
 But suppose that it is admitted that the English rule is applicable here, do the facts in this case 
 bring it within that rule? Were the votes for Vance cast in willful obstinacy for a candidate the voters 
 knew, or had good reason to believe, would not be entitled to take his seat? The memorialist avers 
 that the fact that Vance was known to be ineligible is not controverted. That his ineligibility was a
 
 480 
 
 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 §463 
 
 matter of public notoriety in North Carolina is doubtless true, and that it was known to most if not all 
 of the members of the legislature is quite probable; yet no evidence has been presented to the committee 
 proving this fact, or that notice of his disqualification was given at the time the vote was taken. 
 
 Let us even go one step further, and suppose that the evidence on this point was clear and explicit; 
 are we not justified in believing that those who voted for Vance did so in good faith, believing that his 
 disabilities would be removed after the election by the action of Congress, basing this presumption on the 
 precedents which liad recently been set in similar cases? Nor is this by any means an improbable 
 hypothesis, but accords much better with the facts presented to the committee than the hypothesis 
 that the votes given for Vance were cast in "willful obstinacy" for a candidate they knew would not be 
 admitted to his seat. If they were given under the impression that these disabilities would be removed, 
 then, although unavailing, they can not be rejected from the count. And the committee would again 
 refer to the report of tlie committee in the case of Yulee v. Mallory, of Florida, 1852. 
 
 * ****** 
 
 Under the English rule it is the fact that the voters knowingly and purposely throw away their 
 votes that lays the foundation for saying they assent to the election of the minority man. But no such 
 purpose can be predicated of the legislature of North Carolina. They did not know that their votes 
 for Vance would be thrown away. They did not purposely throw them away, because Congress had 
 in numerous cases previously removed disabilities of a similar character from those elected and allowed 
 them to hold their offices. Nearly all of the officers elected in this State in 1868 had their disabilities 
 removed by the act of June, 1868, and were allowed by virtue thereof to enter upon and discharge the 
 functions of their respective offices. 
 
 The same act removed the disabilities of a large number of persons elected in Alabama in February, 
 1868, and at the close of the section contains this sweeping clause: 
 
 "And also all officers-elect at the election commenced the 4th day of February, 1868, in said 
 State of Alabama, and who have not publicly declined to accept the offices to which they were elected." 
 (15 Stat. L., 366, 2.) 
 
 These were certainly sufficient to raise in the minds of the members of the legislature of North 
 Carolina who voted for Vance the belief that his disabilities would be removed and that he would be 
 allowed to take his seat. In fact, they had good right to believe that this was the rule, and the opposite 
 the exception, especially where the persons so elected were known to favor the restoration of order and 
 obedience to law. 
 
 Again, it may be fairly argued that the fourteenth amendment to the Constitution did not disqualify 
 Vance to be elected, but only to hold the office of Senator in case his disability should not be removed. 
 Upon this interpretation his election was voidable only, and not void, and, as a consequence, Abbott 
 was not elected. But even if this interpretation is erroneous, it is one the legislature of North Carolina 
 might (and as nothing to the contrary is shown, we are to presume did) honestly entertain (especially in 
 view of the action of Congress above referred to), and if they elected Vance under a mistake in law, his 
 election was not void, but only voidaljle. 
 
 Although the committee have referred to the decisions of the courts and legislative bodies of this 
 country bearing upon this ease, the tenor of which is believed to be decidedly adverse to the claim of the 
 memorialist, yet this appears unnecessary, as a careful examination of the act of Congress of July 25, 
 1866 (which has already been alluded to on one point), when applied to the facts in this case, would 
 seem to be an effectual bar to the claim of the memorialist. 
 
 The report then cites this act, which in terms requires the election of a Senator 
 by majority vote, and concludes: 
 
 It is, moreover, evident from the very wording of this act that Congress did not even contemplat3 
 the possibility of an election by a minority under any circumstances, but by this act imply the opposite. 
 
 As to another question the report holds: 
 
 It has been suggested that there is a distinction in respect to the operation of the rule insisted on 
 by the memorialist between a popular election, under our liberal system of suffrage, for a Member to the 
 House of Representatives by ballot and an election of a Senator by viva voce vote of the members of a 
 legislature. 
 
 f.
 
 § 463 THK OATH AS RELATED TO QUALIFICATIONS. 481 
 
 Your committee are inclined to think this is correct, but that the distinction bears against the 
 claim of the memorialist instead of in favor of it. 
 
 The number of persons entitled to vote at a popular election is not fixed and definite, and hence 
 it is impossible to have a quorum or anything answering thereto. There is no power to compel attendance. 
 This is, and necessarily mixst be, wholly voluntary; therefore it is necessary that those attending should 
 have the right to elect where the election is free, and are prevented from attending by force, intimida- 
 tion, or fraud. If a candidate receiving the majority is disqualified, and the votes cast for him are 
 declared nullities (as claimed by the memorialist), the remaining votes are as effectual to elect as if every 
 voter of the district had been present; and if those who voted for the candidate receiving the majority 
 had not been present at all, the election nevertheless would have been valid. But the rule is wholly 
 difierent in legislative bodies. The number is fixed and definite, a quorum can be and is required to 
 act, and the presence of a less number is not effectual. Had but the 32 who voted for Abbott been 
 present in the house at the time the vote was cast, we do not suppose anyone would contend that he had 
 even a shadow to base his claim upon; yet this number would be sufiicient to elect in a district of 1,000 
 voters if no others voted. We therefore coincide in the view that there is a difference, and that, even 
 if the English rule was applicable in the case of an election of a Member to the House of Repre- 
 sentatives, it would by no means follow that it was applicable to the election of a Senator where the 
 number voting, of the votes counted, is less than a quorum. 
 
 Your committee, therefore, after a full hearing of the case and examination of the authorities, come 
 to the conclusion that the Hon. Joseph C. Abbott, of North Carolina, is not entitled to a seat in the United 
 States Senate, and recommend the adoption of the following resolution: 
 
 Resolved, That Joseph C. Abbott, not having received a majority of the votes cast by the North 
 Carolina legislature on the second Tuesday in November, 1870, for the office of Senator of the United 
 States, is not entitled to a seat in said United States Senate as such Senator. 
 
 Mr. Matt H. Carpenter, of Wisconsin, on behalf of himself and Mr. B. F. Rice, 
 of Arkansas, submitted minoritj- views, in which they say: 
 
 Had Vance beenqualified to serve, there would be no question as to his right. But hewas disquali- 
 fied by the fourteenth amendment to the Constitution of the United States, for the reason that he had 
 been a Member of the Congress prior to the rebellion, and, as such Member, had taken an oath to support 
 the Constitution of the United States, and during the rebellion he had acted as colonel in the rebel 
 army, and taken an oath of allegiance to the so-called Confederate States of America; and he had acted 
 as governor of the rebel State of North Carolina from August, 1862, to April, 1865; and this disquali- 
 fication was notorious — known to all the members of the legislature at the time of his election, and to all 
 the people of that State. The fact that Vance was known to the members of the legislature who voted 
 for hini for Senator to be disqualified is not controverted. On the contrarj'. General Ransom, who 
 claims to have been subsequently elected, upon the resignation of Vance, was heard before your com- 
 mittee, and frankly admitted that the fact that Vance was disqualified was well known to all the 
 members of both houses of the legislature at the time of his pretended election. 
 
 It is admitted on all hands that the election which was held, as before stated, conferred no right 
 upon Vance to a seat in this body; but Abbott, who was qualified, and who received the next highest 
 number of votes cast, and a majority of all the votes cast for qualified candidates in both houses, insists 
 that he was elected at said election, and is now entitled to the seat; and this is the question to be 
 determined. 
 
 The minority views then go on to cite the statute governing the election of a 
 Senator by the legislature, and continues: 
 
 It will be perceived that this act does not attempt to determine what shall be a quorum of each 
 house, but leaves that question to be determined by the constitution and laws of the State. By the 
 constitution of North Carolina it is provided : 
 
 "Neither house shall proceed upon public business unless a majority of all the members are actually 
 present."- 
 
 5994— VOL 1—07 31
 
 482 PRECEDENTS OF THE HOUSE OF EEPEESENTATIVES. §' 463 
 
 It is not necessary that all the members should participate in the transaction of public business by 
 either house, but merely that a majority of all the members should actually be present in each house. 
 But in providing for an election by the joint assembly of the two houses the act of Congress does provide 
 that in such election — 
 
 "The person having a majority of all the votes of the said joint assembly, a majority of all the 
 members elected to both houses being present and voting, shall be declared duly elected." 
 
 The difference in these two provisions is not one of phraseology merely, but of substance. In the 
 election by the two houses separately in North Carolina, if a majority of the members elected to each 
 house are actually present, the person who shall receive the highest number of votes cast, though that 
 may be less than half of a constitutional quorum, is to be declared elected; but in the election by the 
 joint assembly it is not enough that a candidate should receive a majority of all the votes cast, but he 
 must receive a majority of "all the votes of the said joint assembly — a majority of all the members elected 
 to both houses being present and voting. ' ' These provisions are so materially different that the variation- 
 can not be regarded as accidental, and the reason for the distinction is, no doubt, that the act intended 
 to leave the matters of a quorum and the proceedings of the houses acting separately to be regulated by 
 the constitution and laws of the State, but the act intended to provide what should be necessary to 
 constitute a quorum and make an election in the joint assembly — a body created by the act, and 
 whose proceedings might not be regulated by the constitution of the State. 
 
 It is only necessary in this case to consider the effect of the proceedings in the two houses on the 
 first day, because it is upon those proceedings Mr. Abbott founds his claim. If he was legally elected 
 on that day the subsequent proceedings by the joint assembly could not affect his right, nor can such 
 claim be affected by any subsequent proceedings of the legislature. His claim depends upon the legal 
 effect of what took place in the two houses on the first day of the election. 
 
 It is insisted that the provisions of the act in relation to election by the two houses and by the 
 joint assembly are substantially the same, because it is provided by the act that — 
 
 "Each house shall openly, by a viva voce vote of each member present, name one person for 
 Senator, etc., and the name of the person so voted for who shall have a majority of the whole number 
 of votes cast in each house shall be entered on the journal," etc. 
 
 And hence it results that to be elected on the first day the person must have a majority of all the 
 members present. But this construction, which is equivalent to saying that, to make an election, every 
 member must vote, would put it in the power of a single member of the legislature to defeat an election 
 on that day. This could not have been intended, and that clause must be regarded as relating merely 
 to the manner of voting; and if a number of votes are cast for a qualified candidate, and the other mem- 
 bers refuse to vote at all, then the person "who shall have a majority of the whole number of votes cast'' 
 must be deemed elected. 
 
 The provision concerning the joint assembly is materially different. There it is provided: 
 
 "The joint assembly shall then proceed to choose, by a viva voce vote of each member present, a 
 person for the purpose aforesaid, and a person having a majority of all the votes of the said joint assembly, 
 a majority of all the members elected to both houses being present and voting, shall be declared duly 
 elected." 
 
 The clause "a person having a majority of all the votes of the said joint assembly, a majority of all 
 the members elected to both houses being present and voting," undoubtedly requires that to make an 
 election a candidate must receive a number of votes greater than half of the majority of both houses. 
 The difference between the two provisions is this: If a majority or quorum of each house are actually 
 present when each house proceeds to the election on the first day, the person receiving the highest 
 number of votes cast is elected, though receiving less than half of a majority. But in the joint assembly 
 it is necessary to an election that a candidate should receive the votes of more than half of a majority 
 of both houses. 
 
 It is a well-established rule for construing statutes that every clause, phrase, and word must be 
 deemed to have been added to the statute for the purpose of accomplishing some end that would not be 
 accomplished without it. 
 
 Applying this familiar precept to the statute before us, it must be held that the provision in r^ard 
 to an election by the joint assembly requiring a person to receive "a majority of all the votes of the said 
 joint assembly," which is not found in the act in relation to an election by the two houses acting
 
 I 463 THE OATH AS RELATED TO QUALIFICATIONS. 483 
 
 separately, was added for the purpose of requiring in one case what was not necessary in the other. It 
 may be said that the same thing ought to be required in the one case as in the other, and that the act of 
 Congress ought not to be so construed as to permit an election by the minority in one case and to forbid 
 it in the other. But the answer to this is obvious. Before the passage of this act the States elected 
 Senators by various methods; some by a joint assembly of both houses and some by the action of the 
 two houses separately. In those States which elected by the latter method the houses might sometimes 
 disagree, and thus defeat an election. It was the manifest intention of the act of Congress to afford to a 
 legislature the opportunity of electing a Senator by the separate action of the houses, and in doing so 
 to leave the whole detail of the election to be regulated by the parliamentary usage of the State. But 
 in providing for an election by the joint assembly, a method not in use in some of the States, it was 
 necessary to provide what should be a quorum, and what should be necessary to an election. 
 
 As the act of Congress does not affect the question under consideration, resort must be had to the 
 precedents and authorities, English and American. 
 
 It is admitted that when the electors vote for a disqualified candidate, in ignorance of his disquali- 
 fication, the election is void, and must be remitted to the elective body. But it is insisted that where, 
 as in this case, the electors (the members of the two houses) had full knowledge of the disqualification, 
 votes cast for such person are considered as thrown away, and the qualified candidate receiving the next 
 highest number of votes, and a majority of all votes cast for qualified candidates, is elected. If this 
 proposition is well grounded, Mr. Abbott is entitled to a seat; and this is the precise question upon 
 which we are to consult the authorities. 
 
 Mr. Abbott furnished to your committee a printed brief containing references to and quotations 
 from the decisions upon this question from the earliest times, which quotations are embodied in this 
 report. * * * 
 
 After citing many decisions referred to in the brief, especially the case of Yulee, 
 the views of the minority proceed: 
 
 It was strongly contended before your committee that the case under consideration falls fairly 
 within this equitable principle, because it was said that all the State ofHcers and judges of North Caro- 
 lina had been elected while under disability imposed by the fourteenth amendment, and Congress had 
 subsequent to their election removed their disabilities and enabled them to hold their oflSces; and 
 your committee were referred to the act of June 25, 1868 (15 Stat. L., p. 366), by which "all officers 
 elected at the election commencing the 4th day of February, 1868, in the State of Alabama," and who 
 had not publicly declined to accept the offices to which they were elected, were relieved of their disa- 
 bilities. From these facts it was contended that the members of the legislature who voted for Vance 
 might well believe, and it was said that in fact they did believe, that Congress would relieve Vance of 
 his disability and that he would be admitted to his seat in the Senate. 
 
 This suggestion has some force, but a slight examination will show that it is rather plausible than 
 sound. In the first place, the case bears no resemblance to that supposed in the report in Yulee's 
 case, because here there was no misapprehension as to any fact then existing. If the electors had sup- 
 posed that Vance was not disqualified, though in fact he was, or had they believed that an act had 
 already passed Congress relieving him from his disability, though such was not the case, then the elect- 
 ors would have acted under a misapprehension and honestly entertained the belief that Vance was 
 eligible. But such is not the case. Every elector who voted for Vance knew that he was disqualified 
 by the fourteenth amendment and that his disability had not been removed. Every elector therefore 
 knew when he gave his vote for Vance that, as the case then stood, such vote was thrown away. As 
 well might a man claim exemption from the penalty imposed by a statute upon the ground that although 
 he knew he was violating its provisions he expected the legislature would repeal it. It was the duty 
 of that legislature to elect a Senator who, in virtue of that election and without the aid of any other 
 government, would be authorized to demand his seat as a Senator. To elect a disqualified candidate 
 and then refer it to Congress to remove his disqualifications or not is to transfer the election from the 
 legislature to Congress. In such case the legislature would in effect be nominating a Senator and sub- 
 mitting it to Congress to determine whether or not he should be a Senator. Put the case in the strongest 
 possible light for Vance, still it must be admitted that the electors who voted for him knew that as the 
 case then stood their votes were being thrown away; that without the action of Congress, which might 
 or might not be interposed, the election was in violation of the Constitution; and up to the time when
 
 484 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 463 
 
 Abbott claimed his seat in this body, and up to the present hour, the votes given for Vaneo remain 
 wholly inoperative, void, blanks in the law, thrown away for every legal purpose. Mistakes which 
 equity may relieve against are mistakes in regard to existing facts — not oversangiiine and unfounded 
 hopes looking to the futiu'e for realization and accomplishment. 
 
 In the second place, the legislation of Congress in regard to the organization of the reconstructed 
 governments of the Southern States furnishes no precedent to bind the Senate in determining the elec- 
 tion of its own Members. Those State governments could not be organized without relieving the disa- 
 bilities of those who had been elected. Congress was therefore compelled to do so or abandon those 
 States to anarchy or remit them to military rule. To quote the language of a great statesman on another 
 subject, "A doubtful precedent should not be followed beyond its necessity." No such necessity 
 exists in regard to the Senate of the United States, and therefore the electors had no right to assume 
 that Congress would do in this case, where there was no necessity for it, what it had been compelled to 
 do in the other cases referred to. And in no case has a Senator elected under disabilities imposed by 
 the fourteenth amendment been relieved of such disability and permitted to take his seat. 
 
 Several decisions of the House of Representatives have been referred to which are supposed to be 
 inconsistent with the principle here asserted . But it is believed that in none of those cases was it estab- 
 lished that the electors knew of the disqualification of the candidate voted for; and in the very able 
 report of Mr. Dawes, from the Committee on Elections (Report of Committees, 11, second session Fortieth 
 Congress), which is much relied upon, it is expressly stated that this point was not involved, because 
 it did not appear that the electors had such notice. 
 
 But there are many reasons for declining a critical examination of the decisions of the other House 
 in regard to the election of its Membei-s. By the Constitution each House is made the judge of the 
 elections, retiu-ns, and qualifications of its Members. It would therefore be improper for the Senate — 
 certainly indelicate for a committee of the Senate — to criticise the actions or decisions of the House; 
 and it would be subversive of the Constitution, because it woidd practically make the House of Repre 
 sentatives not only the judge of the election, returns, and qualifications of its own Members, but also of 
 the Members of this House, if the Senate were to follow as precedents the decisions of the House in 
 conflict with its own opinions. 
 
 Again, there is much force and reason in the distinction made by the court, in Commonwealth v. 
 Cluley (56 Penn. St., p. 274), between a popular election, under our system of almost universal suffrage, 
 for a Member of the House of Representatives, by ballot, and an election of a Senator by a viva voce 
 vote of the members of a legislature. And it might well be that the House of Representatives should 
 establish one rule appropriate to the election of its Members and the Senate a different rule in regard 
 to the election of its Memliers. The difference between the two cases would justify different rules. 
 
 In a popular election, by baUot, for a Member of the House of Representatives, where the voters 
 are numerous and scattered over a considerable territory, it would be impossible to ascertain whether 
 or not the electors, or enough of them to change the result, had knowledge of the disqualification of the 
 candidate. Besides, voting by baUot includes the right of the elector to conceal the fact for which 
 candidate he voted. This is his secret, which can not be wrested from him even in a court of justice. 
 And they who voted against the successful candidate, yet failed to defeat him at the polls, might attempt 
 to accomplish the same end by pretending to have voted for him with knowledge of his incapacity. 
 Even perjury in such case, should a voter voluntarily swear falsely in regard to it, could never bo detected 
 and punished. Such a principle applied to such elections would be unsatisfactory, often incapable of 
 application, and always a temptation to frauds and perjuries, which might be committed with impunity. 
 And it may be conceded that, in determining who has been elected at such popular election by ballot, 
 no candidate not receiving a majority of all votes cast, counting blanks and ballots for disqualified 
 candidates, ought to be declared elected ; and that the decisions of the House of Representatives, as 
 applied to the election of its own Members, ought to proceed upon a different principle than the one 
 here contended for. 
 
 But the circumstances which may well induce the House of Representatives to depart from the 
 ancient rule and practice in determining the election of its Members do not exist in relation to the 
 election of Senators. Senators are elected by a small number of persons, the number fixed by law, 
 who are compelled to vote viva voce. Their votes are matters of record, and the record discloses who 
 voted for and who voted against the disqualified candidate. 'Wliether these electors had notice or not 
 of the ineligibility of a candidate is easily, and may be definitely and certainly, ascertained. There
 
 § 463 THE OATH AS RELATED TO QUALIFICATIONS. 485 
 
 is no inconvenience, no opportunity for fraud, no temptation to perjury, in the application of the 
 principle here contended for to such an election. Every reason that can be given for excluding the 
 application of this principle to popular elections by ballot sustains its application to the election of a 
 Senator by the viva voce vote of the members of the legislature; and it is worthy of remark that the 
 rule of parliamentary and common law. which is established by an unbroken current of decisions in 
 England, had reference to elections, not by ballot, but viva voce. That method of election gave rise to 
 the nde, and no reason has been given, none suggests itself, for departing from it now in regard to 
 such elections. And it should also be observed that in every case in the American courts of law where 
 the judges have, obiter dictum, declared that the minority candidate was not elected, not only was 
 the element of knowledge of the disqualification wanting, but the election was by ballot and not viva 
 voce. Not a dictimi of any American court or American law writer of established reputation has 
 been cited to your committee, and it is believed that none exist, which disapproves of the principle 
 as applicable to elections viva voce. 
 
 In the report of the majority it is said that this principle belongs to a government where, as in 
 England, the right to vote has been granted or conceded as a boon or franchise by the monarch to his 
 subject: and hence to vote for a candidate known to be disqualified is a crime. But that in this country 
 voting is the inherent right of every citizen; and Roe on Elections, page 256, is cited as sustaining this 
 assertion in relation to elections in England. The author referred to. so far from sustaining such a dis- 
 tinction, does not allude to it. And it is believed, for many reasons, that no such distinction can be 
 maintained. 
 
 1. The great charter in England was not a concession in the sense of a grant of rights. It was an 
 admission that certain rights belonged to Englishmen, and always had belonged to them. The rights 
 there admitted to exist were the inherent rights of Englishmen. Blackstone says: 
 
 "The great charter 'contained very few new grants, but, as Sir Edward Coke obser\-es, was for the 
 most part declarator^' of the principal grounds of the fundamental laws of England.' " 
 
 The great Bill of Rights delivered by the Lords and Commons to the Prince and Princess of Orange 
 February 13, 1688, and afterwards enacted in Parliament, after enumerating the privileges of the people, 
 concludes in the following strain of ancient, manly eloquence: 
 
 "And they do claim, demand, and insist upon all and singular the premises, as their undoubted 
 rights and liberties." 
 
 And the act of Parliament recognizes — 
 
 "All and singular the rights and liberties asserted and claimed in the said declaration to be true, 
 ancient, and indubitable rights of the people of this Kingdom." 
 
 2. The right of voting in this countrj' is not an inherent right of the citizen. If it were, women as 
 well as men could vote; because women as well as men are citizens and always have been under our 
 Constitution: and ever>' inherent right of the citizen is possessed as fully and may be exercised as freely 
 by the female as the male citizen. Our popular elections are participated in by those who have a con- 
 stitutional right to vote. Their right to vote does not spring merely from citizenship; it is a right secured, 
 limited, and regulated by the Constitution and laws. A citizen has no more inherent right to be a voter 
 than to be a Senator. The citizen may vote if the Constitution and laws permit, not otherwise; so every 
 citizen may be a Senator Lf duly elected and qualified, not otherwise. 
 
 3. But if such distinction were conceded to exist, it would strengthen the conclusion here arrived 
 at. To test this let us concede that the Englishman in voting is exercising not an inherent right, but a 
 franchise delegated to him by the Crown; therefore it is a crime for him to vote for a disqualified candi- 
 date, and for that reason his vote is considered as thrown away and the next highest qualified candidate 
 is to be considered as elected. And let us also concede that at a popular election in this countrj' the 
 voter exercises an inherent right of citizenship: and hence, if he votes for a candidate known to be dis- 
 qualified his vote is not thrown away. From these admissions what results? Simply this: That in our 
 popular elections, by ballot, for a Member of the House of Representatives the principle here contended 
 for does not apply. Very well. It does not apply upon this hj-pothesis, because the voter is exercising 
 an inherent right and not a delegated power when he casts his ballot. Now, if this distinction be well 
 taken does not everyone perceive that the principle here contended for must apply to an election of 
 Senators by the members of a legislature who in that election are exercising a delegated power and not 
 an inherent right? The members of the legislature in electing a Senator are exercising a power that is 
 delegated in a double sense. The power to elect a Senator is delegated hy this Government — that is,
 
 486 
 
 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 463 
 
 by the Constitution of the United States — to the legislature of the State; and the people elect members 
 of that legislature who are among other things to exercise this power of electing a Senator. It will not 
 be pretended that a member of the legislature in voting for a Senator is exercising an inherent right of a 
 citizen, and all must admit that he is exercising a delegated power; so that the very argument which 
 exempts the election of Members of the House of Representatives from the operation of the principle 
 under consideration subjects the election of Senators to its full operation. 
 
 It has also been urged before your committee that bills passed by Congress to relieve disabilities of 
 Members elected to the House of Representatives rest upon principles inconsistent with the con- 
 clusions of this report. To this two answers may be made: (1) The proceedings of Congress in relation 
 to cases of election while reconstruction of the late rebel States was in progress can hardly be relied upon 
 as settling principles by which either House of Congress ought to be bound in times of peace. The 
 circumstances under which such legislation was had were exceptional and the legislation itself ought 
 not to stand as a precedent. (2) The bills which have passed were bills originating in the House of 
 Representatives concerning Members elected to that House, and although the Senate has concurred in 
 the enactment of such laws it ought not to be regarded as settling principles by which the Senate must 
 be bound in determining the election of its own Members. A\'henever the House of Representatives 
 manifests its desire to seat a Member, although it may require the enactment of a law by both Houses 
 to accomplish the purpose, still the Senate in concurring in such enactment may be regarded as extend- 
 ing a courtesy to the House of Representatives rather than settling principles which will bind the Senate 
 in relation to the election of its own members. * * * 
 
 Therefore it is submitted that upon reason and authority the votes cast for Mr. Vance, with full 
 knowledge on the part of the members of both houses of the legislature that he was disqualified by 
 the Constitution to serve in this body, ought to be considered as thrown away; and that, inasmuch as a 
 majority of all the members elected to each house were "actually present," the election was legal, and 
 that the qualified candidate receiving the highest number of votes, and a majority of all votes cast for 
 qualified candidates, was duly elected. It is conceded that majorities have a constitutional right to 
 govern in this country; but it is not conceded that even the majority of the legislature of a State may 
 morally or constitutionally defeat government by refusing to elect Senators to serve in the Senate of 
 the United States. In this case the majority had a right to elect a qualified person to the Senate; but 
 having waived their right by voting for a person known to be disqualified, as much as though they had 
 refused to vote at all or had voted for a man known to be dead, the minority who complied with the 
 Constitution by voting for a qualified candidate may well be held to have expressed the will of the 
 legislature. If the majority, being called upon, will not vote they can not complain that the election 
 was decided by those who did vote, though a minority of the elective body. And voting for a person 
 known to be disqualified is not voting. Such votes are void — no votes; and the highest number of 
 votes cast, a quorum being present, must effect an election. 
 
 Therefore, in view of the premises, the minority of your committee reconmiend the adoption of the 
 following resolution: 
 
 " Resolved, That Joseph C. Abbott has been duly elected Senator from the State of North Carolina 
 for the term of six years, commencing on the 4th day of March, 1871. and that he is entitled to a seat 
 in the Senate as such Senator." 
 
 The reports were debated at length in the Senate on April 11, 12, 15, 22, and 
 23, 1872,' and on the latter day the motion to substitute the minority resolution 
 for that of the majority was disagreed to — yeas 10, nays 42. Then the resolution 
 reported by the majority was agreed to. 
 
 ' Globe, pp. 2387-2390, 2431-2434, 2676; Appendix, pp. 219-229, 245-257, 234-245, 272-279, 32»-^34.
 
 Chapter XV. 
 
 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 
 
 1. Cases of Whittemore, Connor, and Acklen. Sections 464-466.' 
 
 2. The polygamy cases of 1868, 1873, and 1882. Sections 467-473. 
 
 3. The case of Brigham H. Roberts. Sections 474-480. 
 
 4. The Senate case of Reed Smoot. Sections 481-483.- 
 
 5. Incidental opinion of a House committee. Section 484. 
 
 464. B. F. Wliitteinore, being reelected to the same House from which 
 he had resigned to escape expulsion for crime, was excluded from taking 
 the oath and his seat. — On June 18, 1870,' the Speaker laid before the House 
 the credentials of ilr. B. F. Whittemore, of South Carolina, who had been chosen at a 
 special election to fill the vacancy caused by expulsion proceedings taken by the 
 House against him at an earUer period in this session.^ Mr. John A. Logan, of 
 Illinois, objected to the administration of the oath to Mr. Wliittemore on the ground 
 that he had disquaHfied himself for being a Member of the House. 
 
 It was urged that the credentials should be referred to a committee for examina- 
 tion, and the subject was postponed to a day certain. On June 21 Mr. Logan 
 presented this resolution: 
 
 Be it resolved, That the House of Representatives decline to allow said B. F. Whittemore to be 
 sworn as a Representative in the Forty-first Congress and direct that his credentials be returned to him. 
 
 Accompanying this resolution was a preamble reciting the facts of the proceed- 
 ings of expulsion against Mr. Whittemore for the sale of appointments at the Military 
 Academy and the fact that he had escaped expulsion by resigning ; and that he had 
 received the censure of the House. 
 
 Mr. Logan, in advocating the resolution, said he did not presume that the Con- 
 stitution contemplated expulsion for any mere political reasons, or for anything 
 except a violation of the rules of the House or an infraction of some existing law. 
 He assumed that where the House had the right to expel for violation of its rules or 
 of some existing law it had the same power to exclude a person from its body. Mr. 
 Logan then had read the law against bribery', for violation of which Mr. Whittemore 
 had been censured. It was right to exclude a man from the House for crime. It was 
 this feature of crime which distinguished tliis case from those of Messrs. Giddings, of 
 
 ' Discussion of bribery as a disqualification. (Sec. 946 of Vol. II.) 
 
 ^Alleged statutory disqualifications. (Sec. 955 of Vol. II.) 
 
 ^Second session Forty-first Congress, Journal, pp. 1040, 1060; Globe, pp. 4588, 4669-^674. 
 
 * For those proceedings see Chapter XLII, of this work. 
 
 487
 
 488 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 4fi5 
 
 Oliio, and Brooks and Keitt, of South Carolina, wlio, after receiving the censure of 
 the House, had resigned their seats, and after reelection had been admitted to the 
 House. The case of Mr. Matteson, of New York, who had been censured, was also 
 different, because he had returned to a Congress succeeding that in which he had 
 been censured, and which had no jurisdiction of the offense committed against its 
 predecessor. 
 
 Mr. John F. Famsworth, of Illinois, urged that grave constitutional questions 
 were involved, and that the matter should be referred to a committee for examina- 
 tion. He quoted the Wilkes case to illustrate the dangers of a precedent of exclusion. 
 
 The resolution offered by Mr. Logan was adopted by a vote of 130 yeas to 76 
 nays. 
 
 465. The Texas election case of Grafton v. Connor, in the Forty-first 
 Congress. 
 
 In 1870 the House declined to exclude John C. Connor, who possessed 
 the constitutional qualifications and satisfactory credentials, but whose 
 moral character was impeached. 
 
 Statement of the attitude of the House at the close of the civil war 
 as to qualifications other than those prescribed by the Constitution. 
 
 A military order has been accepted as credentials of Members from 
 a reconstructed State; but the said credentials were examined by a com- 
 mittee before the House authorized the bearers to take the oath. 
 
 On March 30, 1870,' a message from the President announced that he had 
 approved the act to admit the State of Texas to representation in the Congress of 
 the United States. On the same day a letter was presented "from the secretary 
 of civil affairs. State of Texas, inclosing General Orders, No. 5, headquarters Fifth 
 Military District, Texas, giving the result of an election held on the 30th of Novem- 
 ber and 1st, 2d, and 3d of December, 1869." This letter, which constituted cre- 
 dentials of election, was referred to the Conunittee on Elections, the claimants to 
 seats not being sworn in. 
 
 On March 31 ^ Mr. Halbert E. Paine, of Wisconsin, from the Conunittee on 
 Elections, presented the following resolution: 
 
 Resolved, That the oath of office be now administered to G. W. Whitmore, J. C. Connor, W. T. 
 Clark, and E. Degener, Representatives-elect from * * * the State of Texas: Provided, That the 
 right of any person to contest the seats of either of said Representatives shall not be thereby impaired. 
 
 Mr. Joseph P. C. Shanks, of Indiana, proposed an amendment that Jolm C. 
 Connor be not sworn in, but that the contested case of Grafton v. Connor be 
 referred to the Committee on Elections, with instructions to examine and report 
 both as to prima facie and final right. 
 
 Thereupon Messrs. Shanks and Benjamin F. Butler, of Massachusetts, pre- 
 sented affidavits wherein it was charged that Mr. Connor, wliile an officer of the 
 Army, about January 5, 1868, had cruelly whipped and otherwise punished certain 
 negro soldiers of his command, and that later, on October 23, 1869, in a public 
 speech in Texas, he had boasted that he used the lash freely on the soldiers, and 
 
 ' Second session Forty-first Congress, Journal, pp. 547, 548; Globe, p. 2297. 
 = Journal, pp. 552, 553; Globe, pp. 2322-2329.
 
 § 466 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 489 
 
 had also stated that he escaped conviction by a miUtary court by bribing the sol- 
 diers with circus tickets, so that they would not testify against him. Therefore, it 
 was urged that because of bad character he should not be admitted to take the 
 oath, although the Committee on Elections had foxmd his credentials regular and 
 sufficient. 
 
 The debate which followed was summarized by a brief colloquy, wherein Mr. 
 James A. Garfield, of Ohio, asked : 
 
 Allow me to ask * * * a anjlhing in the Constitution of the United States and the laws 
 thereof * * * forbids that a "moral monster" shall be elected to Congress? 
 
 To which ]VIr. Ebon C. Ingersoll, of Illinois, replied: 
 
 I believe the people may elect a moral monster to Congress if they see fit, but I believe that Con- 
 gress has a right to exclude that moral monster from a seat if they see fit. 
 
 The weight of argument was against the position assumed by Mr. Ingersoll. 
 Mr. Henry L. Dawes, of Massachusetts, speaking for the Committee on Elections in 
 the preceding Congress, said : 
 
 When any Member, upon his responsibility as a Member, made any charge against any claimant 
 to a seat that touched his constitutional qualification the House, before swearing him in, would refer 
 the question to the proper committee to report on it. Beyond that the Committee on Elections came 
 to the conclusion, and the House sustained them, it was not proper to go. That question of itself was 
 a very delicate one. and of course might be carried to such an extent as to involve great abuse to the 
 rights of persons claiming seats here. But never did that committee ask the House to go one inch 
 beyond the question of the constitutional qualification of a Member, and never did this House decide 
 that we had the right to go one inch beyond that question. As to the question whether a gentleman 
 claiming a seat has heretofore behaved in a manner unbecoming a Member, I think this is the first time 
 it was ever raised on the floor of the House. 
 
 The question being taken on the amendment proposed by Mr. Shanks, the 
 yeas and nays were demanded, but were refused. Tellers also were refused. Then 
 the amendment was disagreed to without division. 
 
 Then the resolution proposed by the Committee on Elections was agreed to. 
 
 Accordingly the Texas Members-elect, Mr. Connor among them, appeared and 
 were sworn. 
 
 On July 15 ' the Committee on Elections reported, and the House agreed to a 
 resolution declaring Mr. Grafton, the contestant, not entitled to the seat. 
 
 466. A Member being charged with a crime entirely disconnected 
 from his representative capacity, the House declined to hold that a ques- 
 tion of privilege was involved. — On January 7. 1879,- Mr. J. H. Acklen, of 
 Louisiana, after a personal explanation, offered the following: 
 
 Whereas J. H. Acklen. a Member of this House, has been charged by afiidavit with having seduced 
 Mattie Palfrey Wright, now deceased, in April, 1877, said affida\'it having been drawn up by one H. L. 
 Smith, also deceased, and sworn to by said Mattie Wright: Therefore, 
 
 Be it resolved, That the Speaker of the House be, and he is hereby, authorized to appoint a committee 
 of three Members of this House, whose duty it shall be to investigate the truth or falsity of said charges, 
 etc. 
 
 Mr. John H. Reagan, of Texas, raised the question of order that a mere charge of 
 crime, on which no conviction had been obtained, did not justify the House in taking 
 jurisdiction on the question of qualifications. 
 
 ' Journal, p. 1277. 
 
 ' Third session Forty-fifth Congress, Journal, p. 138; Record, p. 354.
 
 490 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 467 
 
 The Speaker ' said : 
 
 The gentleman from Louisiana rose to a question of personal privilege. The Chair has been reluctant 
 to interrupt him and is reluctant now to decide in a matter affecting the character of a Member of this 
 House. The gentleman from Texas raises the question that this does not embrace a question of personal 
 privilege. Since this discussion has been going on, the Chair, so far as his memory enables him to recol- 
 lect, fails to remember a single instance during his own term of service in this House wherein charges of 
 this character, which do not directly affect the representative character of a Member of this House, have 
 been made a subject of inquiry by the House. The Chair finds in one instance a decision made by one 
 of his predecessors, Mr. Speaker Linn Boyd, which he desires to have read to the House: 
 
 "Mr. Thomas H. Bayly submitted, as a question of privilege, the following resolution, namely: 
 
 "Resolved, That the special committee of which Hon. Mr. Letcher is chairman be instructed to com- 
 municate to this House any communication made to that committee reflecting upon the representative 
 character of T. H. Bayly, a member of this House, by B. E. Green or others, with a view that the House 
 may take such action as to it may seem proper, the said committee having decided that it was not within 
 their jurisdiction." 
 
 The decision in that case by Mr. Speaker Boyd was that it was not a subject of investigation unless 
 it did actually affect the official character of the Representative. In a case like this the Chair is quite 
 willing to submit the question to the House with this preliminary statement on his part. 
 
 Thereupon Mr. James A. Garfield, of Ohio, said: 
 
 If by "personal privilege" is meant the ordinary rights which the House grants to a man to make a 
 personal explanation, I certainly should vote aye. And therefore I want it understood that my vote, 
 which in this case will be "no," means that I do not conceive that this is a case about which the House 
 has any jurisdiction to investigate, and in that sense I vote against it. 
 
 The Speaker said : 
 
 The Chair desires to say in answer to the gentleman from Ohio that the distinction he has drawn is a 
 very proper one. The Chair himself has allowed the personal explanation to be made. The question 
 whether it embraces a privilege affecting the character of a Member of the House the Chair prefers to 
 submit to the House. 
 
 The Speaker having put the question: "Does the said preamble and resolution 
 involve a question of privilege?" it was decided in the negative without division. 
 
 On April 15, 1879,^ Mr. J. R. Chalmers, of Mississippi, claiming the floor for a 
 question of personal privilege, had read a newspaper article describing him as " one of 
 the notorious and bloody-handed butchers of the forever infamous Fort Pillow mas- 
 sacre," etc. Then 'Mr. Chalmers offered a resolution providing for a select committee 
 to investigate the subject of General Chalmer's conduct. 
 
 Mr. James A. Garfield, of Ohio, made a point of order. 
 
 The Speaker did not rule upon the question, wliich was after debate postponed. 
 
 On May 7,^ after further debate, the House laid the resolution on the table- 
 ayes 98, noes 70. 
 
 467. The TTtah election case of McGrorty v. Hooper, in the Fortieth 
 Congress. 
 
 In 1868 the House declined to pass on the title to a seat of William H. 
 Hooper, Delegate from Utah, who was alleged to have been elected by- 
 undue influence of an alleged disloyal organization. 
 
 ' Samuel J. Randall, of Pennsylvania, Speaker. 
 - First session Forty-sixth Congress, Record, p. 455. 
 3 Record, pp. 1125-1132.
 
 § 467 POLYGAMY AST) OTHLR CRIMES AS DISQUALIFICATIONS. 491 
 
 In 1868 the House refused a seat to a contestant who received a small 
 minority of the votes in a Territory, but who alleged that the majority 
 voters were disqualified by treasonable antagonism to the Government. 
 
 An instance wherein a Delegate gave notice of a contest by a tele- 
 gram, which was submitted to the House by the Speaker. 
 
 In 1868 the House entertained a contest for the seat of a Delegate, 
 although the first notice of contest was irregular and the supplemental 
 notice was not filed within the time required by law. 
 
 A resolution declaring a Delegate entitled to his seat being laid on 
 the table, the Delegate continued to exercise his functions. 
 
 On March 5, 1867/ the Speaker laid before the House a telegram from William 
 McGrorty, giving notice of contest for the seat of William H. Hooper, Delegate from 
 Utah TerritorA". On March 6 Mr. Hooper was sworn in without any question being 
 raised. 
 
 On July 9, 1868,' Mr. John W. Chanler, of Xew York, submitted the report 
 of the committee.' The consideration of the case involved a preUminary question 
 as to the notice of contest. Contestant admitted that he had not proceeded accord- 
 ing to the terms of the law, explaining his reasons: 
 
 On the 23d of February, 1867, the contestant deposited in the office of Wells, Fargo & Co., at Great 
 Salt Lake City, a notice directed to the Hon. William H. Hooper, and a similar notice to the Clerk of the 
 House of Representatives, notifying them that he should contest the seat of said Hooper, which notices 
 were received in this city and delivered to the parties to whom they were addressed some time in the 
 month of March following. 
 
 The reasons why the grounds were not stated in the notice are fully set forth in the affidavit of con- 
 testant, made on the 18th of January, 1868, which has been placed before the committee, with the other 
 papers in the case; and it is confidently submitted that those reasons are sufficient to excuse him from 
 a literal compliance with the law. It is there shown that it would have been impossible to contest the 
 election in the usual manner because of the hostility of the Mormon leaders, endangering the lives of 
 himself and friends, and the destruction of the ballots and lists of voters, at the time when the notice 
 was sent to Mr. Hooper. 
 
 The sitting Delegate objected that the notice had not been filed within the 
 time required by law, that it did not comply %vith the law, although there existed 
 no valid reasons why it shomd not have done so, and that the testimony taken was 
 ex parte. 
 
 Contestant urged * that, while his original notice was defective in specifications, 
 his second amended notice of January 18, 1868, supplied all omissions, and consid- 
 ered that the precedents of the House (citing Kline v. Yerree) justified its reception. 
 He also urged through his counsel that the law of 1851 concerning contested elec- 
 tions did not apply to the Territories, citing cases of Hunt v. Palao and Benner v. 
 
 •First sessionFortiethCongress,Journal, pp. 11,13; Globe, p. 11; 2Bartlett, p. 211; RoweU's Digest, 
 p. 216. 
 
 2 House Report No. 79, second session Fortieth Congress. 
 
 'It was stated in debate that four members of the committee — Messrs. Henry L. Dawes, of Massa- 
 chusetts; Charles Upson, of Michigan; Joseph W. McClurg, of Missouri, and Glenni W. Scofield, of 
 Pennsylvania — dissented from the views in the report, although agreeing to the resolutions. (Globe, 
 p. 4383.) 
 
 * Speech of contestant. Globe, pp. 4384, 4385.
 
 492 PRECEDENTS OF THE HOUSE OF SEPRESENTATIVES. § 467 
 
 Porter, as well as others. Furthermore, it was urged that the law of 1851 was not 
 absoluteh' binding on the House, being only a wholesome rule which might be 
 departed from for good cause, citing Williams v. Sickles. 
 
 The committee in their report did not specifically discuss this preliminary 
 question; but the fact that they proceed to consider the case on its merits is an 
 evident decision. 
 
 As to the merits of the case, the contestant presented seven grounds of contest, 
 but the report discusses only three: 
 
 1. That the sitting Delegate represents a community separated from and hostile to the other portions 
 of the people of the United States, and organized and acting in disregard and violation of the laws of the 
 United States, and under an anti-republican form of government. 
 
 2. That he [the sitting Delegate] is the representative of the institution of polygamy. 
 
 3. That his secret oath, taken in the Mormon Church, disqualifies him from sitting as a Delegate in 
 the Congress of the United States. 
 
 The contestant, as appears from his address to the House, argued that since 
 the constituency was hostile to the Government of the United States those who 
 voted for the sitting Delegate were incompetent electors and their votes were void. 
 He also urged that there were illegalities connected with the election which rendered 
 it impossible to determine what votes were cast according to law. Contestant also 
 argued that as the sitting Delegate had taken oaths pledging him to hostility to 
 the United States he was disqualified for the office and all votes cast for him were 
 void. This disqualification he attempted to prove by affidavits, ex parte in 
 nature, describing the oaths taken by Mormans in the "endowment" ceremonies. 
 Contestant further argued that, although the majority of the people of the Terri- 
 tory were disloyal and incompetent, the loyal minority should not be deprived 
 of its representation. 
 
 The official returns had given 15,068 votes for sitting Delegate and 105 for 
 contestant. Therefore contestant claimed the seat as representative of the loyal 
 minority of 105. 
 
 The committee discussed at length the people and institutions of Utah, sum- 
 marizing their conclusions: 
 
 So far, therefore, as it was to the interest of the leaders of Mormonism to oppose this Government, 
 to strengthen and enrich themselves and secure the support of new converts, your committee think the 
 organization has been antagonistic to the United States. But from no malice aforethought have they 
 ever, as far as any proof has come to your committee, organized rebellion or sedition against the supreme 
 authority of this Union, or committed treason by any overt act. 
 
 To remedy the evils which now exist in this Territory and to prevent them in the future has been 
 a matter of serious consideration for many years by this Government, and a plan is now before the Com- 
 mittee on Territories in the Senate for radically changing the manner of carrying on the government 
 of Utah. 
 
 The duties of your committee do not extend to the subject-matter of reform in the Territory further 
 than to protect the purity of the representative system and secure to every citizen of the United States 
 the full enjoyment of his liberty at the polls. 
 
 Your committee believe that it is the imperative duty of Congress to enforce the laws by every 
 means in the power of this Government, to prevent undue influence of the hierarchy of the Mormon 
 society over the people of that Territory. 
 
 A strong belief exists in the mind of your committee that to considerable extent such influence has 
 been used in the recent elections for Delegate to Congress from Utah, but sufficient proof of its illegality
 
 § 468 POLYGAMY AND OTHER CElTffES AS DISQUALIFICATIONS. 493 
 
 has not come to their knowledge to -warrant . in their opinion, any direct interference by immediate action 
 of Congress. 
 
 The vote polled, under whatever control it may have been deposited, is, in the opinion of your 
 ctimmitfcee, in default of full and satisfactory evidence to the contrarj% to be deemed and accepted as 
 the legal vote of the people of Utah. Their minds may have been under religious or other prejudice, 
 created or incre^ased by the Mormon leaders in favor of one candidate and against the other, but there 
 is no reason to conclude that the free exercise of the ballot by the citizen was unlawfully prevented by 
 force or fraud. No euffici'Ciit proof to that effect has, in the opinion of your committee, been presented 
 by the contestant- The committee therefore unanimously agree to present the following resolutions, 
 to wit: 
 
 "Resolvfd, That William McGrorty is not entitled to a seat in this House as a Delegate from the 
 Territory of Utah. 
 
 "Resolved, That William H. Hooper is entitled to a seat in this House as a Delegate from the Terri- 
 tory- of Utah." 
 
 The report was debated on July 23, 1868,^ the principal argument being made 
 by contestant, and the first resohition, declaring contestant not entitled to the seat, 
 was agreed to without division. The second resolution, declaring sitting Member 
 entitled to the seat, was laid on the table. 
 
 The practical effect of this action was to leave sitting Delegate in the seat, as 
 is shown by his appearance at the next session of this Congress.'' 
 
 468. The Utali election case of Maxwell v. Cannon, in the Forty-third 
 CJongress. 
 
 In 1873 the House seated Delegate George Q. Cannon on the strength 
 of his unimpeached credentials, although it was objected that he was dis- 
 qualified. 
 
 On December 2, 1873,^ the Delegates from the Territories were called to be 
 sworn after the House had been fully organized. To Delegate George Q. Cannon, 
 of Utah, objection was made by Mr. Clinton L. Merriam, of New York, who pre- 
 sented for the action of the House the following resolution : 
 
 Whereas it is alleged that George Q. Cannon, of Utah, has taken oaths inconsistent with citizen- 
 ship of the United States and with his obligations as Delegate in this House, and has been, and con- 
 tinues to be, guilty of practices in violation and defiance of the laws of the United States: Therefore, 
 
 Resolved, That the credentials of said Cannon, and his right to a seat in this House as a Delegate 
 from Utah, be referred to the Committee on Elections, and that said Cannon be not admitted to a seat 
 in this House previous to the report of said committee. 
 
 In the course of the debate Mr. Stephen W. Kellogg, of Connecticut, asked 
 if there was any other certificate or credential from the governor of Utah than 
 the one which had already been presented in behalf of Mr. Cannon. 
 
 The Speaker replied that the Clerk informed him that that was the only cre- 
 dential that had been presented from Utah. 
 
 In the course of the debate the Maryland case in the Forty-first Congress was 
 cited in support of the contention that he was entitled by prima facie right to 
 his seat on the certificate. It was argued (by Mr. Benjamin F. Butler, of Massa- 
 chusetts) that to take any other course would be to establish precedents that in 
 
 ' Second session Fortieth Congrcs?, Journal, p. 1159; Globe, pp. 4383-4389. 
 
 = Third session, Journal, p. 181. 
 
 ^ Cong. Record, first session Forty-third Congress, pp. 7 and 8.
 
 494 PRECEDENTS OF THE HOUSE OF REPEESENTATIVES. § 469 
 
 times of high party excitement might prevent the organization of the House 
 indefinitely. 
 
 Mr. Merriam's resohition was laid on the table without division, and Mr. Cannon 
 then took the oath. 
 
 469. The Utah case of Maxwell v. Cannon continued. 
 
 In 1873 the Elections Committee concluded that a Delegate who had 
 been sworn could be reached on a question of qualifications only by 
 process of expulsion. 
 
 The Elections Committee concluded in 1873 that if the Member-elect 
 be disqualified the minority candidate is not thereby entitled to the seat. 
 
 Discussion of the right of the House to fix qualifications other than 
 those specified by the Constitution. 
 
 Discussion of the distinction between the power to judge of the elec- 
 tions, returns, and qualifications of the Member and the power to expel. 
 
 In 1873 the Elections Committee concluded that where a law of Con- 
 gress extended the Constitution over a Territory the qualifications of the 
 Delegate should be similar to those of Members. 
 
 Discussion as to whether or not the expulsion of a Delegate should be 
 effected by a majority or a two-thirds vote. 
 
 On April 30, 1874,' Mr. Gerry W. Hazelton, of Wisconsin, submitted the report 
 of the majority of the committee in the Utah case of Maxwell v. Cannon, which 
 had come before the Committee on Elections like ordinary cases of that kind. It 
 was not claimed by the contestant that he had received a majority of the votes 
 actually cast, although it was maintained that gross irregularities existed in the 
 manner of conducting the election and making the returns. Wliile there was 
 testimony to bear this out, yet the sitting Member undoubtedly had a majority 
 of the legal votes. 
 
 Therefore two questions were left for the committee: 
 
 (1) Contestant raised the following question: 
 
 George Q. Cannon, the sitting Delegate, is not qualified to represent said Territory, or to hold his 
 seat in the Forty-third Congress, and for cause of disqualification we say it is shown by the evidence 
 that he, at and before the day of the election, to wit, on the 5th day of August, 1872, was openly living 
 and cohabiting with four women as his wives in Salt Lake City, in Utah Territory, and he is still so 
 living and cohabiting with them. 
 
 The sitting Delegate in his answer had denied the charges of contestant on 
 the subject of polygamous relations. 
 
 The committee first proceeded to consider the question of their own jurisdiction 
 to consider a question of qualifications. They say: 
 
 What are the qualifications here mentioned and referred to the Committee on Elections? Clearly, 
 the constitutional qualifications, to wit, that the claimant shall have attained the age of 25 years, been 
 seven years a citizen of the United States, and shall be an inhabitant of the State in which he shall be 
 chosen. 
 
 The practice of the House has been so uniform, and seems so entirely in harmony with the letter 
 of the Constitution, that the committee can but regard the jurisdictional question as a bar to the consid- 
 eration of qualifications other than those above specified mentioned in the notice of contest and herein- 
 before alluded to. 
 
 1 Report No. 484; Smith, p. 182; Rowell's Digest, p. 291.
 
 § 469 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 495 
 
 It being conceded that the contestee has these qualifications, one other inquiry only under this 
 head remains, to wit : Does the same rule apply in considering the casa of a Delegate ae of a Member of 
 the House? This question seems not to have been raised heretofore. 
 
 The act organizing the Territory of Utah, approved September 9, 1850, enacts that the Constitution 
 and laws of the United States are hereby extended over and declared to be in force in said Territory of 
 Utah, so far as the same or any provision thereof may be applicable. 
 
 It was said on the argument that the Constitution can not be extended over the Territories by act 
 of Congress, and the views of Mr. Webster were quoted in support of this position. 
 
 We do not deem it necessary to consider that question, because it will not be denied that Con- 
 gress had the power to make the Constitution a part of the statutorj- law of the Territory as much as any 
 portion of the organic act thereof. For the purposes of this inquiry, it makes no difference whether the 
 Constitution is to be treated as constitutional or statutory law. If either, it is entitled to be considered 
 in disposing of this case. 
 
 Now, while it would be entirely competent for Congress to prescribe qualifications for a Delegate in 
 Congress entirely unlike those prescribed in the Constitution for Members, it seems to us, in the absence 
 of any such legislation, we may fairly and justly assume that by making the Constitution a part of the 
 law of the Territory, Congress intended to indicate that the qualifications of the Delegate to be elected 
 should be similar to those of a Member. It would seem to be to that extent an instruction to the electors 
 of the Territorj', growing out of the analogies of the case. 
 
 We conclude, therefore, that the question submitted to us, under the order of the House, comes 
 within the same principles of jurisdiction as if the contestee were a Member instead of a Del^ate. 
 
 This position, it wLU be observed, does not conflict with the right of the House to refer a preliminary 
 inquiry to this committee as to the disqualification of a Member or Delegate to be sworn in and take his 
 seat prior to the oath being administered. In such case the reference is special, and the jurisdiction of 
 the committee follows the order of the House. 
 
 The case of Samuel E. Smith against John Young Brown, in the Fortieth Congress, is in point. 
 That case was referred to the Committee on Elections, before the contestee was sworn in, to ascertain 
 and report whether he had committed any of the acts specified in the law of July 2, 1862, which he was 
 required to swear he had not committed, before entering on the duties of a Representative. 
 
 It was a preliminary inquir\% made under a special order of the House, and might have been 
 executed as properly by the Judiciary Committee or by a special conmiittee. It did not relate in the 
 remotest manner to the election, returns, and qualifications of the claimant under the Constitution. 
 
 The contestee in this case having been sworn in and admitted to his seat, and his name ofiicially 
 entered upon the roll of Delegates, we think he can be reached only under the exercise of the power of 
 expulsion, which it is competent for the House to set in motion by a special order of reference. 
 
 (2) The second question related to the claim of the contestant to a seat as the 
 minority candidate, the majority candidate being disqualified. The committee 
 deny the authority of the case of Wallace v. Simpson in support of this contention, 
 and quote the case of Smith v. Brown as estabhshing a doctrine contrary to that 
 laid dowTi by the contestant. 
 
 Therefore the majority of the committee recommended the adoption of the 
 following resolutions: 
 
 Resolved (1 ), That George R. Maxwell was not elected, and is not entitled to a seat in the House of 
 Representatives of the Forty-third Congress as Delegate for the Territory of Utah. 
 
 Resolved {2), That George Q. Cannon was elected and returned as a Delegate for the Territory of 
 Utah to a seat in the Forty-third Congress. 
 
 Mr. Horace H. Harrison, of Tennessee, dissented from the conclusions of his 
 associates wherein they stopped short in their second resolution of declaring Mr. 
 Cannon entitled to the seat, and proposed the following: 
 
 Resolved, That George Q. Cannon was duly elected and returned as Delegate from the Territory of 
 Utah, and is entitled to a seat as a Delegate in the Forty-third Congress.
 
 496 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 469 
 
 Mr. Harrison considered that a Delegate should not be considered as on any 
 different basis from a Member, and proceeded to make his argument with this 
 proposition understood. Mr. Harrison says : 
 
 The qualifications of Representatives in Congress are prescribed by the second section of the first 
 article of the Constitution of the United States. 
 
 They are: First, that they shall have attained the age of 25 years; second, that they shall have 
 been seven years citizens of the United States; and, third, that they shall when elected be inhabitants 
 of those States in which they shall be chosen. No other qualifications are prescribed in the Constitution. 
 
 If the Constitution of the United States had vested anywhere the power to prescribe qualifications 
 of Representatives in Congress additional to or different from those prescribed by the Constitution itself, 
 it is obvious that this power would have been conferred either upon Congress, or upon the House alone, 
 or upon the States. 
 
 In the history of our Government it has never been claimed that the House of Representatives, 
 acting alone, possessed the power to add to or change the qualifications of its Members. The vain 
 attempt made by Mr. Randolph, in the case of Barney v. McCreery, in the Tenth Congress, to vindicate 
 a claim of that kind in favor of the States, signally failed, and has never been repeated in the House. 
 
 Mr. Justice Story, in his discussion of the subject of the qualifications of Representatives in Congress, 
 says that it would seem but fair reasoning, upon the plainest principles of interpretation, that when the 
 Constitution established certain qualifications as necessary for office it meant to exclude all others, as 
 prerequisites, and that from the very nature of such a provision the affirmation of these qualifications 
 would seem to imply a negative of all others. And although it is certain that the letter of those constitu- 
 tional provisions which relate to Representatives from the States does not apply exactly to the cases 
 of Delegates from the Territories, still it is just as certain that their spirit does. 
 
 Mr. Harrison declared that no act could be found fixing the qualifications of a 
 Delegate or providing a disqualification for any cause. The act of July 1, 1862, 
 provided a punishment for bigamy; but disqualification for office was not a part of 
 this pimishment. 
 
 Mr. Harrison then continued: 
 
 The precedents of the House are in accordance with this construction of the Constitution. There 
 has been no precedent since the organization of the Government which would justify, any more than 
 would the Constitution itself justify, the House acting as the judges of the election, returns, and quali- 
 fications of Mr. Cannon, in a decision to deprive him of his seat on the ground that he has violated the 
 law prohibiting polygamy in the Territories of the United States. 
 
 The case of B. F. Whittemore, in the Forty-first Congress, is relied upon as an authority for the 
 refusal to admit a Representative-elect on other grounds than mere constitutional disqualifications. 
 But a critical examination of that case will show that the House only decided that a Representative 
 who had by resignation escaped expulsion for an infamous crime from that House should not be read- 
 mitted to the same House. 
 
 The case of Mr. Matteson, in the Thirty-fifth Congress, relied upon in argument before the commit- 
 tee, was a case arising, not under the clause of the Constitution which makes each House the judge of 
 the election, returns, and qualifications of its Members, but under that clause which confers the power 
 of expulsion. 
 
 The line of demarkation between these two great powers of the House, the power to judge of the 
 election, returns, and qualifications of its Members by a mere majority vote, and the power to expel its 
 Members by a two-thirds vote, is clear and well defined. That line is not to be obliterated. It would 
 be necessary to preserve it, even though its obliteration might seem to threaten no disasters, even though 
 its maintenance might promise no benefits to the House, to the people, or to the Constitution. For this 
 liarrier is raised by the Constitution itself. 
 
 The framers of the Constitution of the United States, in prescribing or fixing the qualifications of 
 Members of Congress, must be presumed to have been dealing with the question with reference to an
 
 § 4:70 POLYGAMr AND OTHER CRIMES AS DISQUALIFICATIONS. 497 
 
 obvious necessity for uniformity in the matter of the qualLfications of Members, and with a jealous 
 desire to prevent, by the action of either House of Congress, the establishment of other or different 
 qualifications of Members. 
 
 It was appropriate and proper — in fact, necessary — that the power should be given to each House 
 to judge of the elections, returns, and qualLfications of its Members; that is, to judge of the constitu- 
 tional qualLfications of its Members. 
 
 The exercise of this power requires only a majority vote. 
 
 But the House possesses another power, to decide who shall and who shall not hold seats in that 
 body. It is altogether distinct, in origin and character, from that to which I have just referred. It is 
 the power of expulsion, which requires a two-thirds vote for its exercise. It is conferred by the follow- 
 ing clause of the Constitution: 
 
 "Each House may determine the rules of its proceedings, punish its Members for disorderly behav- 
 ior, and, with the concurrence of two-thirds, expel a Member." 
 
 This power of expulsion conferred by the Constitution on each House of Congress was necessary to 
 enable each House to secure an efficient exercise of its powers and its honor and dignity as a branch of 
 the National legislature. 
 
 It was too dangerous a power to confer on either House without restriction, and hence it was expressly 
 provided in the Constitution that there must be a concurrence of two-thirds of the Members to expel. 
 
 Under this power, guarded as it has been by the constitutional provision requiring a vote of two- 
 thirds, there have been but a very few instances of expulsion since the organization of the Government, 
 and it would seem that a power so rarely exercised does not require the agency of a standing committee. 
 
 The minority views then go on to discuss the cases of Benjamin G. Harris, of 
 Maryland, and of Mr. Herbert, of CaUfomia, and concluded that the House had 
 always dechned to fix quaUfications outside of those fixed by the Constitution, and 
 that— 
 
 the failure of the committee in this case, after that committee has found that the sitting Delegate from 
 Utah has been duly elected and returned, to report that he is entitled to his seat, is unauthorized in 
 principle or by precedent and dangerous, in so far as it tends to break down the distinction between 
 the jurisdiction of the House in such a contest as the present one and the jurisdiction of the House by a 
 two-thirds vote to expel a member from the House. 
 
 The report was debated at length on May 12.' The debate referred to the 
 status of a Delegate, and to the propriety of adding to the qualifications prescribed 
 in the Constitution. In the course of the debate Mr. E. R. Hoar, of Massachusetts, 
 raised the question as to whether or not a two-thirds vote was needed for the expul- 
 sion of a Delegate. Delegates were creatures of statutes, and he doubted the power 
 of a preceding Congress to impose on the present Congress, against its will, the 
 presence of any one besides the Members who came b}' constitutional right. 
 
 At the conclusion of the debate the two resolutions recommended by the major- 
 ity of the committee were agreed to without division. 
 
 Then, by a vote of 109 yeas to 76 nays, the resolution contended for by Mr. 
 Harrison was agreed to. 
 
 470. The Utah election case of Maxwell v. Cannon, continued. 
 
 In 1873 it was proposed by the majority of the Elections Committee 
 to exclude Delegate George Q. Cannon for polygamy; but the resolution 
 was not considered. 
 
 5994— VOL ]— <)7 32 
 
 ' Journal, pp. 959-962; Record, pp. 3813-3819.
 
 498 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § "i^O 
 
 Then, by a vote of 137 yeas to 51 nays, the House agreed to the following reso- 
 lution proposed by Mr. Hazelton, in connection with the report of the Committee on 
 Elections : 
 
 Whereas George R. Maxwell has prosecuted a contest against the sitting Member, George Q. Cannon, 
 now occupying a seat in the Forty-third Congress as Delegate for the Territory of Utah, charging, among 
 other things, that the said Cannon is disqualified from holding, and is unworthy of, a seat on the floor of 
 this House, for the reason that he was at the date of his election, to wit, on the 5th day of August, 1872, 
 and prior thereto had been, and still is, openly living and cohabiting with four women as his wives under 
 the pretended sanction of a system of polygamy, which system he notoriously indorses and upholds, 
 against the statute of the United States approved July 1 , 1862, which declares the same to be a felony, to 
 the great scandal and disgrace of the people and the Government of the United States, and in abuse of the 
 privilege of representation accorded to said Territory of Utah, and that he has taken and never renounced 
 an oath which is inconsistent with his duties and allegiance to the said Government of the United States; 
 and whereas the evidence in support of such charge has been brought to the official notice of the Committee 
 on Elections: Therefore, 
 
 Resolved, That the Committee on Elections be, and is hereby, instructed and authorized to inves- 
 tigate said charge and report the result to the House and recommend such action on the part of the 
 House as shall seem meet and proper in the premises. 
 
 On Januarj' 21, 1875,' Mr. H. Boardman Smith, of New York, submitted the 
 report of the majority of the committee in response to these instructions. The com- 
 mittee give an account of the evidence before them, state that the testimony as to 
 the oath in the Endowment House is confhcting, and say, first quoting the statute : 
 
 "That every person having a husband or wife living who shall marry any other person, whether 
 married or single, in a Territory of the United States, or other place over which the United States have 
 exclusive jurisdiction, shall, except in the cases specified in the proviso to this section, be adjudged 
 guilty of bigamy, and, upon conviction thereof, shall be punished by a fine not exceeding five hundred 
 dollars, and by imprisonment for a term not exceeding five years: Provided, nevertheless. That this sec- 
 tion shall not extend to any person by reason of any former marriage, whose husband or wife by such 
 marriage shall have been absent for five successive years without being known to such person within 
 that time to be living, nor to any person by reason of any former marriage which shall have been dis- 
 solved by the decree of a competent court, nor to any person by reason of any former marriage which 
 shall have been annulled or pronounced void by the sentence or decree of a competent court on the 
 ground of the nullity of the marriage contract." 
 
 The second section disapproves and annvds all acts and ordinances of the provisional government of 
 Deseret and of the Territory of Utah which establish, support, maintain, shield, or countenance polyg- 
 amy, however disguised by legal or ecclesiastical solemnities, sacraments, ceremonies, consecration, or 
 other contrivances. 
 
 This statute was approved on the 1st day of July, 1862, and has since remained the law of the land. 
 
 It is proper to add that, after the adoption of the resolution above quoted referring this question to 
 your committee, an act was passed by this House, at the last session, with little or no opposition, which 
 reads as follows: 
 
 " [H. R. 3679. Forty-third Congress, first session.] 
 
 "In the Senate op the United St.\tes, June 17, 1874. — Re.^d twice and referred to the Com- 
 mittee ON Territories. 
 
 "AN ACT defining the qualifications of Territorial Delegates in the House of Representatives. 
 
 "Beit enacted by the Senate and Home of Representatives of the United States of America in Congress 
 assembled. No person hereafter shall be a Delegate in the House of Representatives from any of the 
 Territories of the United States who shall not have attained the age of twenty-five years, and been 
 
 ' House Report No. 106, second session Forty-third Congress; Smith, p. 259.
 
 § 470 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 499 
 
 seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of the 
 Territory in which he shall be chosen; and no such person who is guilty either of bigamy or of polygamy 
 shall be eligible to a seat as such Delegate. 
 
 " Passed the House of Representatives June 16, 1874. 
 
 "Attest: Edward McPherson, Clerk." 
 
 Notwithstanding this fact the said Delegate was a candidate at the recent election, and was actually 
 elected Delegate for the same Territory in the Forty-fourth Congress. 
 
 Your committee think the evidence, unchallenged as it is by the Delegate, establishes that, at the 
 date of his election, to wit, on the 5th day of August, 1872, and prior thereto, the said Delegate was, and 
 still is, openly living and cohabiting with four women as his wives, under the pretended sanction of a 
 system of polygamy, which system he notoriously indorses and upholds, in violation of the statute of the 
 United States, approved July 1, 1862, above quoted. 
 
 Therefore the majority recommended that the following resolution be agreed to 
 by the House : 
 
 Resolved, That George Q. Cannon, Delegate from Utah, being found, upon due consideration of 
 the evidence submitted, and not controverted by said Cannon, to be an actual polygamist, and to 
 have married his fourth wife, having three other wives then living, in the month of August, 1865, in 
 open and notorious violation of the law of July 1, 1862, forbidding such marriage, and declaring the 
 same to be a crime punishable both by fine and imprisonment, and it appearing that he still maintains 
 his polygamous practices in defiance of law, is deemed unworthy to occupy a seat in the House of 
 Representatives as such Delegate, and that he be excluded therefrom. 
 
 The minority of the committee, Messrs. Horace H. Harrison, of Tennessee, 
 C. R. Thomas, of North Carolina, L. Q. C. Lamar, of Mississippi, Edward Crossland, 
 of Kentucky, and R. M. Speer, of Kentucky, opposed this proposed action, but 
 Mr. Harrison alone gave his grounds for his opposition, making an elaborate 
 minority report. 
 
 This is the first instance [says this report] where it has been sought to expel a Delegate from one 
 of the Territories of the United States, and there is little in the shape of authority to guide us in the 
 examination of the question. 
 
 Although there is nothing in the Constitution concerning a Delegate from the Territories of the 
 United States, and no express provision therein for their expulsion as there is in the case of Members, 
 we do not doubt the power of the House to expel. The power results simply from the fact that the 
 Delegate is, in some sense, a Member, or is one of the body. He is entitled, as well by courtesy as 
 by a custom which has obtained in this country upon the organization of Territorial government in the 
 Territories, to certain rights and priv-ileges; he is entitled to introduce and advocate on the floor of the 
 House any measure affecting the people of the Territory, or to oppose in debate any measure he may 
 deem injurious to them. He is amenable to the rules of the House or the regulations concerning its 
 proceedings. He would clearly, as it is assumed, have to possess certain qualifications to entitle him 
 to be a Delegate — at least that of citizenship, as is shown in the contest in regard to the admission of 
 the Delegate from Michigan Territory in 1823, during the Eighteenth Congress.' 
 
 Everything in relation to the position of a Delegate having the rights and privileges we have 
 mentioned, and every relation he bears to the House or to the Members thereof, in the absence of 
 anything in the Constitution and laws on the subject, would suggest that if a Delegate is expelled it 
 ought to be for the same causes that would justify the House in expelling a Member, and that the power 
 to expel should be exercised as the constitutional power to expel a Member is exercised. 
 
 It would seem that all of the reasons that can be urged in favor of the rule which the framere of 
 the Constitution made concerning the expulsion of a Member apply with equal force in the case of a 
 Delegate. The framers of that instrument regarded this power to expel a Member by a mere majority 
 
 ' See section 421 of this work.
 
 500 PRECEDENTS OF THE HOUSE OP REPRESENTATIVES. § 471 
 
 vote as a dangerous one, and guarded its exercise liy proxading, in substance, that an expulsion of a 
 Member could only be ordered by a two-thirds vote. Of coarse, we will not be understood as con- 
 tending that the House has not the power, if it choose to exercise it, to expel a Delegate by a mere 
 majority vote, or that there is any express provision of law operating as an inhibition on this power. 
 But we submit that this power should be regulated in its exercise by a legal discretion, and that no 
 safer rule can be found than the one which is deduced from the analogy we have mentioned. 
 
 If it is true that the power to expel a Delegate is drawn from analogy to the power given in the 
 matter of the expulsion of members, it would seem to follow that, looking to this fact and to the nature 
 of the office of a Territorial Delegate as a representative of a portion of the people of this country, and 
 as, in some sense, a Member of this body, he ought not to be expelled except for causes which would 
 justify the House in expelling a Member, and by a two-thirds vote on the question. 
 
 He certainly ought not to be expelled for political reasons or causes, or on account of the existence 
 of certain practices in the Territory he represents, or to punish him for an alleged indulgence therein 
 or the people he represents by depriving them of representation. 
 
 After discussing the subject of Mormonism in the Territory of Utah, and the 
 fact that the Territory had frequently been represented by Delegates who practiced 
 polygamy, the report continues: 
 
 But a graver question than those we have considered is the question whether the House ought, 
 as a matter of policy, or to establish a precedent, expel either a Delegate or Member on account of alleged 
 crimes or immoral practices unconnected with their duties or obligations as Members or Delegates, 
 when the Delegate or Member possesses all the qualifications to entitle him to his seat. 
 
 If we are to go into the question of the moral fitness of a Member to occupy a seat in the House, 
 where will the inquiry stop? What standard shall we fix in determining what is and what is not suffi- 
 cient cause for expulsion? 
 
 The report discusses the possibilities of such moral and political disqualifi- 
 cations being made a pretext for depriving constituences of their representation. 
 To illustrate the reluctance of the House to expel for such reasons, two cases were 
 cited: That of Benjamin G. Harris, of Maryland, who had been convicted of aiding 
 the rebellion, but who was allowed to hold a seat in the Thirty-ninth Congress;' 
 and Representative Herbert, of California, who was charged with homicide, but 
 who was not disturbed in his seat.^ 
 
 The committee also laid stress upon the fact that at the previous session the 
 House had declared Mr. Cannon entitled to his seat. 
 
 On February 9, 1875, Mr. Smith, of New York, called up the resolution reported 
 by the majority of the committee. The consideration of it was antagonized on 
 behalf of an appropriation bill, and the House voted by a large majority not to 
 consider.^ 
 
 471. The Utah election case of Campbell v. Cannon, in the Forty- 
 seventh Congress. 
 
 In 1882 the House declined to permit the oath to he administered to 
 either of two contesting Delegates until the papers in relation to the prima 
 facie right had been examined by a committee. 
 
 The House has given to a committee the right to decide on either the 
 prima facie or final right to a seat before authorizing the oath to be 
 administered to a Delegate. 
 
 ' On December 19, 1865, the resolution relating to Mr. Harris was introduced. 
 
 ^ On February 24, 1857, this case was reported on, no action being recommended. 
 
 ^ Second session Forty-third Congress, Record, p. 1083.
 
 § 472 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 501 
 
 On January 10, 1882/ the House proceeded to the consideration of this resolu- 
 tion, offered December 6, 1881 : 
 
 Resolved, That Allen G. Campbell, Delegate elect from Utah Territory, is entitled to be sworn in 
 as Delegate to this House on his prima facie case. 
 
 To this Mr. Thomas B. Reed, of Maine, offered the following as a substitute: 
 
 Resolved, That the papers in relation to the right to a seat as a Delegate from the Territory of Utah 
 be referred to the Committee on Elections.^ with instructions to report at as early a day as practicable 
 as to the prima facie right, or the final right, of claimants to the seat as the committee shall deem proper. 
 
 After debate the substitute was agreed to, and the resolution as amended was 
 agreed to. 
 
 The facts of the case appeared as follows: That Mr. Campbell had the governor's 
 certificate of election; that Mr. George Q. Cannon received 18,568 votes, and Mr. 
 Campbell only 1,3.57; that Mr. Cannon was a naturalized citizen, and also a Mormon 
 and a polygamist, living with plural wives, and a defender of the institution of 
 polygamy.^ 
 
 472. The Utah election case of Campbell v. Cannon, continued. 
 
 A committee having power to report on either prima facie or final 
 right, made a single report on final right only. 
 
 Records of returns, duly authenticated by seal, are received as evi- 
 dence in election cases after the time for taking testimony is closed. 
 
 The record of a court of naturalization sufficiently establishes citizen- 
 ship, even though it be alleged that the certificate of the fact has not been 
 issued regTilarly. 
 
 The court record of naturalization may not be questioned collaterally 
 by evidence impeaching the facts on which the certificate was issued. 
 
 On February 28, 1882,* the report of the majority of the Committee of Elections 
 in the Utah case of Campbell v. Carmon was submitted to the House. The follow- 
 ing is a statement ^ of the essential preliminary facts : 
 
 The election out of which it arises was held on November 2, 1880, for the choice of a Delegate from 
 the Territor)' of Utah. The returns, which were duly filed with the secretary of the Territorj', were 
 opened and canvassed by him in the presence of the governor of the Territory on December 14, 1880. 
 The canvass of the votes, which was concluded on January 8, 1881, showed that George Q. Cannon 
 received 18,568 votes, and Allen G. Campbell received 1,357 votes. The law provides that the person 
 having the highest number of votes shall be declared by the governor to be elected. The governor, 
 
 ' Furst session Forty-seventh Congress, Journal, pp. 255, 256; Record, pp. 322-340. 
 
 - The Committee on Elections consisted of Messrs. WQliam H. Calliins, of Indiana, George C. Hazel- 
 ton, of Wisconsin, John T. Wait, of Connecticut, William G. Thompson, of Iowa, Ambrose A. Ranney, 
 of Massachusetts, James M. Ritchie, of Ohio, Augustus H. Pettibone, of Tennessee, Samuel H. Miller, 
 of Pennsylvania, Ferris Jacol)s. jr., of New York, John Paul, of Virginia, Frank E. Beltzhoover, of Penn- 
 sylvania, Gibson Atherton, of Ohio, Lowndes H. Davis, of Missouri, G. W. Jones, of Texas, and Samuel 
 W. Moulton of Illinois. 
 
 3 Mthough Mr. Campbell had the certificate of the governor, the Clerk of the preceding House 
 had placed Mr. Cannon's name on the roll at the opening of the Forty-seventh Congress. The Speaker, 
 however, declined to recognize the roll of delegates, and Mr. Cannon was not sworn in. 
 
 ■* House Report 'So. 559, first session Forty-seventh Congress; 2 Ellsworth, p. 604. 
 
 'This statement is from the views of Mr. F. E. Beltzhoover, of Pennsylvania, who concurred 
 generally with the conclusions of the majority of the committee.
 
 502 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 472 
 
 however, in the mistaken belief that he had the right to go behind the returns, heard evidence and 
 arguments to show that Mr. Cannon was an alien and polygamist, and on these grounds finding them, 
 as he believed, sustained, declared Mr. Cannon ineligible and disqualified to serve as a Delegate. The 
 governor further decided, under an erroneous view of the law, that Mr. Cannon being ineligible, the 
 votes cast for him were void, and Mr. Campbell being a citizen and eligible, and having received the 
 next highest number of votes, was elected. The governor accordingly gave Mr. Campbell a certificate 
 of election, and filed among the records of the Territory, in the office of the secretary thereof, an elabo- 
 rate opinion containing a full statement of the facts. The secretary of the Territory, on January 10, 
 1881, gave Mr. Cannon a certified copy of the opinion and declaration of the governor, and also, on 
 January 20, 1881, gave him a certified abstract of all the returns. 
 
 Mr. Cannon notified Mr. Campbell, on February 4, 1881, that he would contest his seat on the 
 ground that he (Cannon) had received a large majority of the votes cast. On February 24, 1881, Mr. 
 Campbell replied to Mr. Cannon's notice that he was not elected, and, if elected, was disqualified by 
 ■•eason of his alienage and polygamy. No testimony was taken by Mr. Cannon in support of his notice 
 during the time allowed to him by law, but on May 9, 1881, and subsequently thereto, testimony was 
 taken by Mr. Campbell to show that Mr. Cannon was a polygamist and an unnaturalized alien, and by 
 Mr. Cannon, in reply, to show his citizenship. 
 
 The certificates held by Mr. Cannon and Mr. Campbell and all the papers and testimony in the 
 case were placed in the custody of the Clerk of the Forty-sixth Congress, and by him were handed 
 over to his successor at the organization of the Forty-seventh Congress. 
 
 When the Forty-seventh Congress was organized and the Delegates from the Territories were 
 called to be sworn, objection was made to both Mr. Campbell and Mr. Cannon, and neither was admitted. 
 After a full discussion of the question as to which of the two gentlemen had the prima facie right to 
 the seat, it was resolved by the House, on January 13, 1882 — 
 
 " That the papers in relation to the right to a seat, as a Delegate from the Territory of Utah, be 
 referred to the Committee on Elections, with instructions to report, at as early a day as practicable, as 
 to the prima facie right or the final right of the claimants to the seat, as the committee shall deem 
 proper." 
 
 While the majority of the committee concurred in a conclusion, they quite 
 generally filed individual views instead of joining in a report. But the views filed 
 by Mr. William H. Calkins, of Indiana, chairman of the committee, who submitted 
 the report to the House, were generally referred to in the debate as representing 
 most nearly the position of the majority. 
 
 As to the question of prima facie right, Mr. Calkins took this view, seeming, in 
 doing so, to voice the general opinion of the committee: 
 
 At the threshold of this case we were met with a certificate held by Mr. Campbell, the contestee, 
 from the governor of Utah Territory. We decline to enter into a discussion of the prima facie right 
 of Mr. Campbell to take his seat as a Delegate on this certificate, because we construe the action of 
 the House on passing on it as a decision adverse to Mr. Campbell, and, being compelled to report 
 on the whole case, we deem it a piece of supererogation to reopen the case of the prima facie right, 
 being satisfied with the action of the House thereon. We dismiss that part of the case from further 
 consideration. 
 
 At the outset Mr. Calkins thus discussed a question of practice: 
 
 The next question that meets us is a question of practice raised by the contestee; which is, that 
 there is no competent evidence before the committee relative to the number of votes cast for Mr. Can- 
 non at the last election, and it is therefore contended that, on the certificate issued by the governor 
 to Mr. Campbell, he is entitled pro confesso to the seat on the final hearing. 
 
 The facts before us are as follows: A certified transcript made by the secretary of the Territory, 
 under the seal thereof, was filed by Mr. Cannon with the Clerk of the House of Representatives on the 
 
 day of November, 1880, and was duly referred to this committee under a resolution of the House 
 
 adopted on the day of December, 1881. It did not reach the committee at the same time that the 
 
 other papers in the contest came into its possession, but shortly thereafter it was sent by the Clerk of
 
 § 473 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 503 
 
 the House to this committee. These certificates purport on their face to be certified transcripts of the 
 returns made by the county canvassing boards to the secretary of the Territory, under the laws of Utah. 
 We therefore hold that certificates of election made by county canvassing boards to the secretary 
 of the Territory (under the Territorial law relative to the election of other Territorial officers of the 
 Territory' — see sees. 22, 23, and 38, et seq.) constitute the proper mode to be pursued in the Terri- 
 tories in respect to the election of Delegates, and that that mode gives effect to the law which makes 
 it the duty of the governor to canvass the votes and to give a certificate to the person receiving the high- 
 est number of votes for Delegate in Congress. It has been the practice of this committee to receive all 
 records duly authenticated by a seal without having them first introduced before the magistrate who 
 takes and certifies the depositions. We know of no other practice that has obtained since the founda- 
 tion of the Government. This class of evidence has never been held to fall within the meaning of the 
 law passed by Congress relative to contested-election cases. The testimony there referred to is the 
 testimony of witnesses or the introduction of such documents as need identification or further proof 
 before their competency is admitted, and we hold that it does not apply to records and evidence which 
 a seal may make perfect without further identification. If the contostee has been or is surprised at the 
 introduction of this testimony, his proper course is to make application for a continuance, so that he 
 may be allowed to take further testimony. Not having made such application, we presume that he 
 does not wish to avail himself of that course in this case. McCrary seems to hold the better practice 
 to be otherwise (sec. 362), but section 353 so modifies the doctrine first laid down that it is not in con- 
 flict with the view the committee take. 
 
 This seems to have been the generally accepted view in the committee, although 
 Mr. William G. Thompson, of Iowa, in his views, antagonizes it: 
 
 The contestee had a right to the notice required by law; he had a right to be present and cross- 
 examine the witness; he had a right to show that this statement was not the best evidence and demand 
 that investigation be made into the legality of every ballot cast, as well as the qualifications of each 
 elector, and especially so when we find in evidence this strange law upon the statute books of Utah, 
 then and now in force (act of Feb. 12, 1870, sec. 43, ch. 2): "That every woman of the age of twenty- 
 one years who has resided in the Territory six months next preceding any general election, bom or 
 naturalized in the United States, or who is a wife or daughter of a native-born or naturalized citizen of 
 the United States, shall be entitled to vote at any election in this Territory." 
 
 The acceptance of these returns as evidence disposed necessarily of the ques- 
 tion as to whether or not Mr. Cannon received the highest number of legally cast 
 votes for the office of Delegate to Congress. 
 
 The next question in issue was: 
 
 Was he a citizen of the United States at the time of his election and did he possess the other 
 necessary qualifications? 
 
 This question involved the determination of certain facts as to the naturaliza- 
 tion of Mr. Carmon. It was alleged that his certificate had not been regularly 
 issued, but the majority considered that the records of the court established it 
 sufficiently. On another point, however, Mr. Calkins said : 
 
 The other point made, that Mr. Cannon had not been a resident of any State or Territory of the 
 United States for five years next preceding the date of naturalization, involves quite a novel question. 
 We hold, however, on this point, that the record can not be collaterally questioned, and that therefore 
 it is incompetent to show by evidence in this proceeding that the certificate is null. (Pruit v. Cum- 
 mings, 16 Wend., 616; State v. Penny, 10 .\rk., 616; McCarthy v. Marsh, 1 Seld., 263; In re Colman, 
 15 Blatchf., 406; Spratt v. Spratt, 4 Pet., 393.) 
 
 473. The Utah election case of Campbell v. Cannon, continued. 
 
 In 1882 the House, by majority vote and for the disqualification of 
 polygamy, excluded Delegate George Q. Cannon, who had not been sworn 
 on his prima facie showing.
 
 504 PRECEDENTS OP THE HOUSE OF EEPEESEKTATIVES. § 473 
 
 A Delegate-elect being excluded for disqualification, the House 
 declined to seat the candidate having the next highest number of votes. 
 
 An argument that questions affecting qualifications should be insti- 
 tuted in the House alone and not by proceedings under the law of contest. 
 
 In 188S, in a sustained case, the major opinion of the Elections Com- 
 mittee inclined to the view that the constitutional qualifications for a 
 Member did not apply to a Delegate. 
 
 An elaborate discussion of the status in the House of a Delegate from 
 a Territory. 
 
 The question as to whether or not a law of Congress creating Delegates 
 is binding on the House in succeeding Congresses. 
 
 Discussion of the effect, in the matter of qualifications of Delegates, of 
 a law extending the Constitution over a Territory. 
 
 The third and last question arising is, Was he a polygamist at the time of his 
 election; and if so, is that a disqualification? 
 
 On the question of fact there could be no doubt, for he had given the following 
 written admission : 
 
 In the matter of George Q. Cannon. Contest of Allen G. Campbell's right to a seat in the House of 
 Representatives of the Forty-seventh Congress of the United States as Delegate from the Territory 
 of Utah. 
 
 I, George Q. Cannon, contestant, protesting that the matter in this paper contained is not relevant 
 to the issue, do admit that I am a member of the Church of Jesus Christ of Latter-Day Saints, commonly 
 called Mormons; that in accordance with the tenets of said church I have taken plural wives, who now 
 live with me, and have so lived with me for a number of years, and borne me children. I also admit that 
 in my public addresses as a teacher of my religion in Utah Territory I have defended said tenet of said 
 church as being, in my belief, a revelation from God. 
 
 Geo. Q. Cannon. 
 
 Therefore there remains the question, Does the practice of polygamy dis- 
 qualify a Delegate? This was the really important question at issue, both in the 
 committee and in the debates on the floor. And its discussion involved the question 
 of the status of Territorial Delegates as distinguished from the status of Members. 
 
 Mr. Calkins, in his views, said: 
 
 We are now brought face to face with the question whether this House will admit to a seat a Delegate 
 who practices and teaches the doctrine of a plurality of wives, in open violation of the statute of the 
 United States and contrary to the judgment of the civilized world. There are several clauses in our 
 Constitution which may have some bearing on this subject. 
 
 Section 2, Article I, of the Constitution is as follows: 
 
 "The House of Representatives shall be composed of Members chosen every second year by the 
 people of the several States," etc. 
 
 SECTION 5. 
 
 "Each House shall be the judge of the elections, returns, and qualifications of its own members; 
 and a majority of each shall constitute a quorum to do business. * * * " 
 
 CLAUSE 2. 
 
 " Each House may determine the rules of its proceedings, punish its members for disorderly 
 behavior, and, with a concurrence of two-thirds, expel a member." 
 
 AMENDMENT I, SECTION 1. 
 
 "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise 
 thereof, or abridging the freedom of speech or of the press."
 
 § 473 POLYGAMY AND OTHEK CRIMES AS DISQUALIFICATIONS. 505 
 
 ARTICLE IV, SECTION 3, CLAUSE 2. 
 
 "The Congress shall have power to dispose of and make all needful rules and regulations respecting 
 the territory or other property belonging to the United States." 
 
 These are the provisions of the Constitution which may be held to have some bearing on the question 
 of the qualifications of Delegates. 
 
 In the first place, Is a Delegate from a Territorj'a Member of the House of Representatives within 
 the meaning of the Constitution? The second section of the first article says: "The House of Repre- 
 sentatives 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 in the most numerous 
 branch in the State legislature." There is no proAdsion in the Constitution for the election of Delegates 
 to the House of Representatives or to the Senate. They are entirely the creature of statute. They are 
 clearly not within the clause of the Constitution last above quoted, for the House is "composed of Mem- 
 bers chosen every second year by the people of the several States;" and nothing is said of the Territories. 
 Delegates have never been regarded as Members in any constitutional sense, because their powers, 
 duties, and pri\-ileges on the floor of the House, when admitted, are limited. They may speak for their 
 Territories; they may advocate such measures as they think proper; they may introduce bills and serve 
 on committees; but they are deprived of the right to vote. And we doubt whether Congress could 
 clothe them with the right to vote on measures affecting the people of the States or of the Territories, 
 because they do not represent any integral part of the nation, but simply an unorganized territory 
 belonging to the whole people. Hence Delegates are creatures of statute, and it would be competent 
 at any time for the legislative branch of the Government to al^olish the office altogether. 
 
 The writer of this report goes further than that. He holds that it is incompetent for Congress and 
 the Executive to impose on any future House the right of Delegates to seats with defined qualifications. 
 That is to say, when the several laws were passed giving the Territories the right to this limited repre- 
 sentation, those laws were binding only on the lower House, which permitted them to be or made it 
 possible for them to be passed, and were persuasive only to the Houses of future Congresses. For some 
 purposes each House of Congress is a separate, independent branch of the Government. It is made so 
 by the Constitution. For example, each House is the judge of the elections and returns of its own Mem- 
 bers, and neither the Executive nor the Senate can interfere with that constitutional prerogative. Each 
 House is independent in its expenditure of its contingent fund, and in the government of its own ofiicers. 
 It is independent in the formation of its own committees, in clothing them with power to take evidence, 
 to send for persons and papers, and to investigate such matters as are within its jurisdiction. Each 
 House is independent in its power to arrest and to imprison, during the session of the body, such contu- 
 macious witnesses as refuse to abide its order. In many other instances that may be cited each House 
 acts independently of the other. And with reference to the election of Delegates, who (if they hold any 
 office or franchise at all) can be nothing but agents representing the property and common territory of all 
 the people, it operates only on the lower branch of Congress, for their election extends no right to them 
 to interfere with the business of the Senate or to act as members thereof. This must not be construed 
 into an opinion that the writer holds that the House of Representatives may disregard any law which 
 Congress has the constitutional power to pass. Such laws are as binding upon this House as upon any 
 citizen or court. Nor does the writer of this report mean to be understood that it is not competent for 
 Congress to provide, under the Constitution, for legislative representation for Territories, but it is denied 
 that Congress can bind the House by any law respecting the qualification of a Delegate. It can not 
 affix a qualification by law for a Delegate and bind any House except the one assenting thereto. The 
 qualification of Members is fixed by the Constitution. Hence they may not be added to or taken from 
 by law. But as to Delegates, they are not constitutional officers. Their qualification depends entirely 
 upon such a standard as the body to which they are attached may make. It is urged this means a legal 
 qualification. This is admitted; but that legal qualification is remitted to the body to which the 
 Delegate is attached, because it is the sole judge of that requisite. It is unfettered by constitutional 
 restrictions and can not yield any part of this prerogative to the other branch of Congress or the Execu- 
 tive. If it could, the right to amend would follow, and the House might find itself in the awkward 
 position of having the Senate fixing qualifications to Delegates, or the Executive vetoing laws fixing 
 them, and by this means the power which V)y the Constitution resides alone in the House would be 
 entirely abrogated.
 
 506 PRECEDENTS OF THE HOUSE OF KEPBESENTATIVES. § 473 
 
 It is claimed this is an autocratic power. This is admitted. All legislative bodies are autocratic 
 in their powers unless restricted by written constitutions. In this instance there is no restriction. 
 
 It is contended that the act of Congress extending the Constitution and laws of the United States 
 over the Territory of Utah, in all cases where they are applicable, extends the constitutional privilege 
 to Delegates and clothes them with membership as constitutional officers of the House. We can not 
 assent to that view. The very language of the act itself only extends the Constitution and laws over 
 the Territory in cases where they are applicable. They can not be applicable to the election of a Dele- 
 gate; for if they were, then Congress would have no authority to deprive a Delegate of the right to vote. 
 To contend that the applicability of the Constitution in that respect extends to Delegates proves too 
 much. It is clear, therefore, that that clause of the Constitution relative to the expulsion of a Member 
 by a two-thirds vote can not apply to Delegates, because they hold no constitutional office. It is equally 
 clear that the clause of the Constitution relative to elections, returns, and qualifications of Members 
 has no applicability except by parity of reasoning; and we do not dissent from the view that, so far as 
 the qualification of citizenship and other necessary qualifications (except as to age) are concerned, 
 they extend to Delegates as well as to Members. (Sec. 1906, R. S. U. S.) This is made so, probably, 
 by the statute, expressly so to all the Territories except to Utah Territory, and inferentially to that 
 Territory. It follows, as a logical sequence, that the House may at any time, by a majority vote, exclude 
 from the limited membership which it now extends to Delegates from Territories any person whom it 
 may judge to be unfit for any reason to hold a seat as a Delegate. 
 
 It can not be said that polygamy can be protected under that clause of the Constitution protecting 
 everyone in the worship of God according to the dictates of his own conscience and prohibiting the 
 passage of laws preventing the free exercise thereof. 
 
 It is true that vagaries may be indulged by persons under this clause of the Constitution when they 
 do not violate law or outrage the considerate judgment of the civilized world. But when such vagaries 
 trench upon good morals, and debauch or threaten to debauch public morals, such practice should be 
 prohibited by law like any other evil not practiced as a matter of pretended conscience. 
 
 The views which we have just expressed render it unnecessary for us to discuss further the various 
 propositions involved. In the face of this admission of Mr. Cannon we feel compelled to say that a 
 representative from that Territory should be free from the taint and obloquy of plural wives. Having 
 admitted that he practices, teaches, and advises others to the commission of that offense, we feel it 
 our duty to say to the people of that Territory that we will exclude such persons from representing 
 them in this House. In saying this we desire to cast no imputation on the contestant personally, because 
 tn his deportment and conduct in all other respects he is certainly the equal of any other person on 
 ihis floor. 
 
 Mr. F. E. Beltzhoover, in his views, presented the question of quahfication in 
 a somewhat different light : 
 
 The only portion of the Constitution of the United States which refers to the Territories is Article IV, 
 section 3, clause 2, which provides: 
 
 "The Congress shall have power to dispose of and make all needful rules and regulations respecting 
 the territory or other property belonging to the United States." 
 
 This clause of the fundamental law has received the most learned and elaborate consideration by 
 the Supreme Court in Scott v. Sanford (19 Howard, 393, etc.), wherein, after going fully into the whole 
 history of the Territories from the time of the first cession to the Government, it is held that this clause — 
 
 "Applies only to territory within the chartered limits of some one of the States when they were col- 
 onies of Great Britain, and which was surrendered by the British Government to the old confederation 
 of the States in the treaty of peace. It does not apply to territory acquired by the present Federal 
 Government by treaty or conquest from a foreign nation." 
 
 To all other territory it is held that the Constitution does not extend, and can not be extended by 
 Congress, except in so far as Congress may enact the provisions of the Constitution into a part of the 
 organic law of such territory. This has been done in regard to Utah, first by the act of Congress which 
 organized that Territory, and which provides that "the Constitution and laws of the United States 
 are hereby extended over and declared to be in force in said Territory of Utah, so far as the same or 
 any provision thereof may be applicable."
 
 § JrTa POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 507 
 
 The Revised Statutes, sec. 1891, provides in somewhat different language, but of the same purport, 
 that 'the Constitution and all laws of the United States which are not locally inapplicable shall," etc. 
 The Constitution and all the laws of the United States are, therefore, a part of the statute law of 
 the Territory of Utah, so far as they are applicable locally to that Territory. 
 
 Now, what was the design of the framers of the Constitution in reference to the territory which 
 they provided for in the clause which we have quoted above? The history of the subject clearly 
 shows that they intended to conunit the unorganized territories wholly to the discretion and unlimited 
 power of Congress. This is so decided by the courts in all the cases in which the subject is considered; 
 this was so held in Scott i'. Sanford (supra), and Judge Nelson, in Benner v. Porter (9 Howard, 235), 
 says: 
 
 "They are not organized under the Constitution nor subject to its complex distribution of the 
 powers of government or the organic law, but are the creatures exclusively of the legislative depart- 
 ment, and subject to its supervision and control." 
 
 It is held by Judge Storj- that ' ' the power of Congress over the public Territories is clearly exclusive 
 and universal, and their legislation is subject to no control, but is absolute and unlimited, unless so far 
 as it is affected by stipulations in the cessions, or by the ordinance of 1787, under which any part of it 
 has been settled." (Storj-, Constitution, sec. 1328; Rawle, Constitution, p. 237; 1 Kent's Commentaries, 
 p. 243.) 
 
 The Supreme Court of the United States, in a very recent case, says: ' ' The power is subject to no 
 limitations." (Gibson v. Chouteau, 13 Wall., 99.) 
 
 See also Stacey v. Abbott (1 Am. Law, T. R., 84), where it is held by the supreme court of one 
 of the Territories that they ' ' are not organized under the Constitution ; they are exclusively the creatures 
 of Congress." 
 
 But there is something more shown by the historj' of the clause in the Constitution in reference to 
 Territories and by the decisions of the courts thereon. It is clear from both these that it was never 
 intended that the status of the Territories should in any respect approach so near the character and 
 position of sovereign States as to require that whatever agents these Territories might be entitled to on 
 the floor of Congress, should have the status and qualifications of Members of Congress. The Territories 
 in the minds of the framers of the Constitution had none of the rights and attributes of the States. No 
 other parts of the Constitution were made to apply to them except the clause we have quoted. On 
 the contrarj', they were spoken of as property, and power was given to Congress to dispose of them as 
 property, and to make all needful rules and regulations respecting them as other property of the United 
 States. They were put in the same categorj' with the other chattels of the Government. There is, 
 therefore, nothing in the Constitution which will justify us in believing in the light of its history that 
 the qualifications of agents who might be appointed to look after the interests of the Territories on the 
 floor of Congress should be the same or even like those of Members of Congress. This is so, we main- 
 tain, with regard even to that Territory over which the Constitution extends directly and immediately, 
 because it was within the control of the Government at the time the Constitution was framed. If, 
 therefore, the Constitution did not contemplate the requirement of such cjualifications for Delegates 
 as agents of the Territorj^ within its immmediate purview, with much less plausibility can it be contended 
 that it shoiild require them where it is only extended as a part of the statute law. The Constitution 
 clearly puts it in the power of Congress to say at any time and in any way it may see proper what 
 qualifications it will exact of the agents whom as a matter of grace and discretion it permits to come 
 from the Territories into its deliberations, and to sit among its Members. Neither the Senate nor the 
 Executive, nor any other power on earth, has any right to interfere except by permission in fixing the 
 qualifications for admission to the House; and the concurrence and cooperation of the Senate and Execu- 
 tive in the passage of any enactment on the subject can go no further in giving it force and validity 
 than to make it a persuasive rule of action which the House is at liberty to follow or disregard. ' ' Each 
 House shall be the judge of the election, returns, and qualifications of its own members." No law 
 that was ever passed on this subject, which is under the exclusive and unlimited control of Congress, 
 by any former Congress is binding on any subsequent Congress. Each Congress may wholly repudiate 
 all such acts with entire propriety. It is customary to regard them as rules of conduct. This is well 
 illustrated by the doctrine laid down by McCrary in his Law of Elections, section 349, in reference to 
 the laws made to govern contested elections; 
 
 '■ The Houses of Congress, when exercising their authority and jurisdiction to decide upon 'the
 
 508 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § -173 
 
 election, returns, and qualifications' of Members, are not bound by the technical rules which' govern 
 proceedings in courts of justice. Indeed, the statutes to be found among the acts of Congress regulating 
 the mode of conducting an election contest in the House of Representatives are directory only, and 
 are not and can not be made mandatory under the Constitution. In practice these statutory regulations 
 are often varied, and sometimes wholly departed from. They are convenient as rules of practice, and 
 of course will be adhered to unless the House, in its discretion, shall in a given case determine that the 
 ends of justice require a different course of action. They constitute wholesome rules, not to be departed 
 from without cause. It is not within the constitutional power of Congress, by a legislative enactment 
 or otherwise, to control either House in the exercise of its exclusive right to be the judge of the election, 
 returns, and qualifications of its own Members. 
 
 ' ' The laws that have been enacted on this subject being therefore only directory and not absolutely 
 binding, would have been more appropriately passed as mere rules of the House of Representatives, 
 since by their passage it may be claimed that the House conceded the right of the Senate to share with 
 it in this duty and power conferred by the Constitution. It is presumed, however, that the provisions 
 in question were enacted in the form of a statute rather than a mere rule of the House, in order to give 
 them more general publicity, etc." 
 
 It is also important to observe the wide distinction which Congress has always made between the 
 powers and status of a Member of Congress and a Delegate from a Territory. 
 
 A Member of Congress is sent by a State by virtue of its irrefragable right to representation under 
 the Constitution of the United States. This right Congress can not abrogate or control or limit or modify 
 in any way. 
 
 A Delegate is an agent of a Territory, sent under the authority or permission of an act of Congress. 
 This right or permission is subject to the merest whim and caprice of Congress. It can be utterly wiped 
 out or modified or changed just as Congress may see proper at any time. 
 
 A Member of Congress must have certain qualifications under the Constitution. 
 
 A Delegate need have none but what Congress sees fit to provide. 
 
 A Member of Congress is the representative and custodian of the political power and interests of a 
 sovereign State, which is itself a factor and part of the Government. 
 
 A Delegate has no political power, but is only a businc ss agent of the Territory, for the purest busi- 
 ness purposes. He has no right to vote or aid in shaping the policy of the Government in war or peace. 
 
 A Member of Congress is an officer named in the Constitution of the United States, and contem- 
 plated and provided by the framers thereof at the time of the organization of the Government. He is a 
 constitutional officer. 
 
 A Delegate is not a constitutional officer in the remotest sense. There were no Delegates men- 
 tioned or thought of by the framers of the Constitution. 
 
 A Memberof Congress is chosen under section 2, Article I, of the Constitution, which provides that— 
 
 "The House of Representatives shall be composed of Members chosen every second year l)y 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. No person shall be a Representative 
 who shall not have attained the age of twenty-five years and been seven years a citizen of the United 
 States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen." 
 
 This specifically and definitely and indubitably fixes how and where and by whom Members 
 of Congress shall be chosen and what qualifications they must imperatively have. "No person shall 
 be a Representative," etc., without these qualifications. 
 
 A Delegate is chosen under section 1862 of the Revised Statutes, which provides that — 
 
 "Every Territory shall have the right to send a Delegate to the House of Representatives of the 
 United States, to serve during each Congress, who shall be elected by the voters of the Territory qualified 
 to elect members of the legislative assembly thereof. The person having the greatest number of votes 
 shall be declared by the governor duly elected, and a certificate shall be given accordingly. Every such 
 Delegate shall have a seat in the House of Representatives, with the right of debating, but not of voting." 
 
 This fully and very clearly provides how Delegates shall be chosen and what power they shall have, 
 but does not exact or provide any qualifications or hint at any. This is the same provision substantially 
 which has been made for Delegates from 1787 down to this time. The provision in the act of July 13, 1787, 
 for the government of the Northwest Territory, is that the joint assembly of that Territory "shall have
 
 § 473 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 509 
 
 authority, by joint ballot, to elect a Delegate to Congress, who shall have a seat in Congress with the right 
 of debating, but not of voting." 
 
 These few marked points of distinction between the two offices not only show that the constitutional 
 qualifications for members do not apply to Delegates, but that none of the legislation which has ever been 
 enacted on the subject seems to have been founded on the belief that they did. 
 
 CONGRESS HAS ADDED TO THE CONSTITUTIONAL QUALIFICATIONS OF MEMBERS; WHY NOT OF 
 
 DELEGATES. 
 
 But admitting for the purposes of this discussion, what can not be maintained, that the same qualifi- 
 tions which entitle a Member of Congress to admission shall also entitle a Delegate to the same right, and 
 I still hold that Congress has the right and power to say that a polygamist shall not be admitted as a Dele- 
 gate. Under the high power inherent in everj' organization on earth to preserve its integrity and exist- 
 ence Congress has the indubitable right to keep out of its councils any person whom it believes to be 
 dangerous and hostile to the Government. 
 
 During the war almost the whole Congressional delegation from the State of Kentucky were halted at 
 the bar of the House, and, on the objection of a Member, were not permitted to be sworn until it was 
 ascertained whether they or either of them were guilty of disloyal practices. They had each every quali- 
 fication usually required by the Constitution; they were duly and regularly elected and returned; they 
 were sent by a sovereign State, holding all her relations in perfect accord with the Federal Ciovemment; 
 but the House proceeded to inquire into each case, and not until a reasonable investigation was had were 
 any of them admitted. The committee which had the matter in charge reported, and the House adopted 
 and laid down, the following rule on the subject of all such cases: 
 
 "Whenever it is shown by proof that the claimant has, by act of speech, given aid or countenance to 
 the rebellion he should not be permitted to take the oath, and such acts or speech need not be such as to 
 constitute treason technically, but must have been so overt and public, and must have been done or said 
 under such circumstances, as fairly to show that they were actually designed to, and in their nature 
 tended to, forward the cause of the rebellion." 
 
 In the case of John Young Brown, who was among the number, the committee almost unanimously 
 reported against his right to admission on the ground that he had written an imprudent and disloyal letter; 
 nothing more. He had never committed an act of treason. He was never arrested or tried or convicted. 
 He denied all treasonable intent in the letter and made every effort in his power to explain and extenuate 
 his offense. But seven out of the nine members of the Committee on Elections of the Fortieth Congress 
 reported that he "was not entitled to take the oath of office, or to be admitted to the House as a Repre- 
 sentative from the State of Kentucky." This report was adopted by the House by a vote of 108 to 43. 
 The minority report in that case made an argument against the action of the majority in almost the same 
 words and on identically the same grounds that the minority of the Committee on Elections occupy in 
 the case under consideration. It was argued that Mr. Brown had all the constitutional qualifications, and 
 that Congress had no right to exact more; that in any event he had never been tried or convicted of 
 treason, and unless convicted of the crime even treason was no disqualification. But Congress then laid 
 down the rule above given, and never abrogated since, that, in addition to the ordinary constitutional 
 requirements, every man must be well disposed and loyal toward the Government before he can be 
 admitted to Congress to aid in forming its policy and controlling its destinies. 
 
 The act of July 2, 1862, providing what is known as the iron-clad oath, added a new and marked 
 qualification to those required of Members of Congress prior to that time, and every Member who has 
 taken that oath since has submitted to the exaction of that additional qualification. The distinguished 
 counsel who argued the case of Mr. Cannon before the Committee on Elections felt the force of this act, 
 and the long-continued practice of Congress under it and explained it as a war measure. He said: 
 
 "Thegroundsupon which this law was vindicated, although not stated with much care or precision, 
 are nevertheless clearly enough disclosed by the debates. It was enacted as a war measure. The iron- 
 clad oath was adopted as the countersign which should, in time of war, exclude domestic enemies from 
 the civil administration of the Government, in the same manner and for the same reason that the military 
 countersign was employed to exclude those enemies from the military lines of the army. It was enacted 
 as a measure of defense against an armed enemy in time of war, and was as necessary- and as justifiable as 
 any other war measure not specifically marked out in the text of the Constitution."
 
 510 PKECEDENTS OP THE HOUSE OF EEPEESENTATIVES. § 473 
 
 If Congress could, almost without challenge, provide and add such a distinct and imperative qualifi- 
 cation, not for Delegate but for a Member of Congress, in 1862, why may we not in 1882 ask a reasonable 
 additional qualification for a Delegate from a Territory who does not come within the letter or spirit of 
 the Constitution? The act of 1862 was a bold and radical assertion of the doctrine of self-preservation on 
 the part of Congress to maintain its integrity and the purity and loyalty of its counsels. The resolution 
 recommended by the majority of the Committee on Elections only says to the people of Utah, you shall 
 not abuse the privilege of representation which we allowed you on the floor of Congress, by sending as 
 your Delegate a person who adheres to an organization that is hostile to the interests of free government, 
 and whose doctrines and practices are offensive to the masses of the moral people of the great nation we 
 represent. 
 
 CONCLUSION. 
 
 The following is a summary of the reasons for my concurrence in the resolutions of the majority of the 
 committee: 
 
 1. The history of the cession and organization of the Territory, which belonged to the Federal Gcov- 
 ernment at the time of its formation, the history of the clause in the Constitution which relates to that 
 Territory, and the Constitution itself, all show clearly that it was not contemplated or intended that 
 Delegates which might be sent from said Territory, then immediately under the Constitution, should 
 have the same qualifications as Members of Congress. 
 
 2. The Constitution does not extend over Utah, except as a part of the statute law provided for that 
 Territory by Congress, and there is, therefore, more reason for holding that the qualifications required 
 for Members of Congress by the Constitution do not extend to Delegates from that Territory than there 
 is in relation to Delegates from Territory immediately under the Constitution. 
 
 3. The Constitution not only does not provide that Delegates shall have the same qualifications as 
 Members of Congress, but no law, in almost a century of legislation on the subject, has so provided. 
 
 4. There is no reason why the qualifications of Delegates should be the same as those of Members of 
 Congress. Their status and duties and powers are widely different, and their qualifications should be 
 made to conform to those powers and duties, which in case of Delegates are purely of a local and business 
 character. 
 
 5. The Territories can only be held and governed by Congress with one single purpose in view, which 
 is to adapt and prepare them for admission as States of the Union. It will hardly be contended that 
 Utah will ever be admitted as a State while polygamy dominates it, or that it is preparing it for admission 
 as a State to hold out to its people the delusive doctrine that a polygamist is not disqualified as a Member 
 of Congress, and therefore that polygamy is no bar to the admission of Utah to the Union. 
 
 6. No law fixing the qualifications of Delegates passed by any former Congress would be binding on 
 any subsequent Congress. Each House shall be the judge of the qualifications of its own Members, and, 
 for a much stronger reason, it should be the exclusive judge of the qualifications of the Delegates, which 
 are its creatures and which it admits as matter of its own discretion. 
 
 7. Congress has held, from 1862 down to this time, that it has the right to prevent the admission of 
 persons as Members who are hostile to the Government by excluding them on that ground, although they 
 possess all the other qualifications required by the Constitution; with much more propriety, and much 
 less stretch of power, Congress has the right to exclude a Delegate who is not well disposed toward the 
 Government, and who openly defies its laws. 
 
 Mr. Ambrose A. Ranney, of Massachusetts, took a different view as to the 
 coiirse of procedure desirable: 
 
 2. I agree in the main with the report of the chairman, wherein he says, in substance, that it is 
 clear that the clause of the Constitution relative to elections, returns, and qualifications of Members 
 applies and extends to Delegates, and that substantially the same qualifications (unless it be as to age) 
 are prescribed for both Member and Delegate. 
 
 I would add to the concession the assertion that the rule of construction which has been established 
 in regard to Constitution relating to Members, to wit, that other qualifications can not be added to those 
 specified, and none taken away, applies for the same reason to Delegates, when the qualifications for 
 them are prescribed and specified by statute; also, what is undoubted law, that judging of the qualifi-
 
 § 473 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 511 
 
 cations comprehends only a detennination of the question whether the Member or Delegate answers the 
 qualifications prescribed as the conditions of his eligibility. 
 
 The manifest intent of the Constitution was to fix certain things as unalterable conditions of eligi- 
 bUity, and leave all else for the electors to judge of and determine for themselves. Congress has shown 
 the same intention in statutes erecting Territorial govenmients, and giving a right of qualified represen- 
 tation. So firmly has the House adhered to this fundamental principle of a representative government 
 that the uniform rule of Congress has been not to entertain questions of alleged bad personal character 
 in judging of what are called '•qualifications." In exercising the right of expulsion even the established 
 rule has been not to expel for bad character or even crimes committed before the election and known to 
 the electors at the time. ^McCrarj', sees. 521, 522, 523.) A few cases connected with the rebellion, and 
 arising out of known disloyalty, are exceptions, but they stand on different grounds. A Delegate's power 
 was so limited and circumscribed that some of the organic acts did not even prescribe citizenship as a 
 condition of eligibility, and Congress held it to be implied, as in the Michigan case. (^Tiite's case, 
 Hall and Clark, p. 85.) 
 
 It follows that all this committee has to do on this point is to see whether Mr. Cannon was eligible 
 or had the prescribed qualifications. 
 
 3. It is sought to avoid the conclusion to which the doctrine of the last point leads, on what I con- 
 sider most untenable and dangerous grounds. They contravene ftmdamental principles of law, and a 
 practice which has existed from the begiiming of the Government. 
 
 Mr. Strong, in 1850, then on Election Committee of the House, since an Lllustrioue judge upon the 
 bench of the United States Supreme Court, has forcibly illustrated and stated that aU admissions of 
 Delegates to a seat are by virtue of established laws, and not by grace or within the discretion of the 
 House. (See Smith's case, Messervy's case, Babbitt's case, 1 Bartlett, pp. 109, 117, 116.) Showing that 
 he has been admitted only by right from the formation of the confederation down to the Constitution, 
 and since to this time. 
 
 It is said that a Delegate is not named in the Constitution and is not the creature of the same, 
 while a Member is, and that his admission to a seat is ex gratia. The legal purport of the opposite 
 contention, when expressed in words, is; "It is incompetent for Congress and the Executive to impose 
 on any future House the right of a Delegate to a seat;" "they (the acts) were persuasive only to the 
 Houses of future Congresses;" and, "in short, it maybe said that Delegates sit in the lower House by 
 its grace and permission, and that it makes no difference whether that permission is expressed in a 
 statute or in a mere resolution of the House. The House can disregard it and refuse to be bound by it, 
 because it affects (somewhat) the organization and membership of the House alone." 
 
 It does not change the legal purport, in my judgment, to say Congress had no power to impose upon 
 the House a Delegate "with defined qualifications." I concede that powers could not be conferred 
 upon a Delegate which would infringe upon the constitutional rights of State representation or those of 
 a full Member. 
 
 The gist of this doctrine is that a statute which the Constitution authorizes Congress to make may 
 be set aside and made null and void at the pleasure of one branch of the lawmaking power. 
 
 If the Constitution authorizes Congress to enact the statutes relating to the Territories, and give 
 a Delegate, duly elected and returned, with the requisite qualifications, a right to a seat and to debate, 
 without a right to vote, no power under heaven can rightfully deprive him of these rights and privileges 
 except Congress itself, by some other statute passed by both Houses. 
 
 The doctrine must lead to this: That the statutes organizing the Territories, with such powers and 
 rights, are not authorized by the Constitution, and are void, unless the House sees fit to observe them. 
 But this clause of the Constitution has been sanctioned and sustained as authorizing such things too 
 often to require any discussion of the subject. 
 
 How the sitting of a Delegate can be said to infringe upon any constitutional rights of a Member 
 I fail to see. Nobody pretends that the statute attempts to make him a Member in the fuU sense of 
 that term, and he is not a creattu^e of the Constitution in the exact sense of that term, but he is a crea- 
 ture of a statute which that instrument authorizes, and can subsist and enjoy his rights and privileges 
 without infringing upon the constitutional rights of a Member, and that is enough to sustain the statute 
 as valid; and, Lf so, it is not merely " perstiasive " on all futtu-e Houses, but absolutely binding on their 
 consciences, and must be obeyed. It can be disregarded only in the exercise of a power without the 
 right, as a sort of usurpation of authority.
 
 512 PRECEDENTS OF THE HOUSE OF EEPBESENTATIVES. § 473 
 
 The right of representation on the part of the Territory and of a Delegate to his seat has always 
 been accorded as such, and not as a grace or favor, save as the grace and favor of Congress, and not 
 of one House alone. The doctrine contended for strikes at the very root of the right of representation 
 conferred, and commits the Delegate to the discretion and caprice of the House, instead of the full law- 
 making power. 
 
 "The organic law of a Territory takes the place of a constitution as the fundamental law of the local 
 government. It is obligatory on and binds the Territorial authorities, but Congres.s is supreme, and 
 for the purposes of this department of its governmental authority has all the powers of the people of the 
 United States, except such as have been expressly or by implication reserved in the prohibitions of 
 the Constitution. * * * 
 
 "It may do for the Territories what the people under the Constitution of the United States may 
 do for the States." (Waite, Ch. J., in Bank v. County of Yankton, 101 U. S., 133.) 
 
 It follows that Congress, and Congress alone, can give rights by statute law, adopting and applying, 
 if they please, the principles of tlie Constitution so far as they can be made applicable, and imposing 
 likewise reciprocal obligations upon every other branch of the Government and the people, so the rights 
 conferred may be guaranteed and enforced. 
 
 The section 1891 of the Revised Statutes extends over Territories the laws and Constitution of the 
 United States, except so far as locally inapplicable, and this was designed to give a representative 
 form of government and repuljlican institutions to Territories, which were incipient or prospective 
 States, and give the Constitution effect as law, with reciprocal rights and obligations. 
 
 A Delegate becomes in one sense a Member, and yet not properly so called. He is enough so to 
 render applicable in spirit the law in regard to contested elections, which In terms applies only to Mom- 
 l)ers, the clause of the Constitution which makes the House judges of the qualifications, returns, etc., 
 of the Members and the other one which relates to the expulsion of Members. (Maxwell v. Cannon, 
 Forty-third Congress.) 
 
 The analogy, if justified at all, must be carried and applied all through, and such has been the 
 uniform precedent and practice heretofore. The law should not be changed to meet the strain of a 
 special desire in an individual case. 
 
 The discussion in Maxwell v. Cannon covers the whole subject-matter, and I adopt its doctrine in 
 the main. 
 
 I feel very clear that the organic act of Utah and the Revised Statutes, including sections 1860, 1802, 
 and 1863, are constitutional and valid and as such binding upon the House as much as on anybody else. 
 
 Section 1862 reads: "Every Territory shall have the right to send a Delegate to the House of Repre- 
 sentatives of the United States, to serve during each Congress, who shall be elected by the voters in the 
 Territory qualified to elect members of the legislative a,ssembly thereof. The person having the greatest 
 number of votes shall be declared by the governor duly elected, and a certificate shall be given accord- 
 ingly. Every such Delegate shall have a seat in the House of Representatives, with the right of debating, 
 but not of voting." 
 
 It is to be observed that the language is, "shall have a seat," etc., and we may as well reject every- 
 thing else as that. 
 
 4. It follows, in my judgment, that Mr. Cannon, being eligible and didy elected and returned, 
 makes out his legal right to a seat under the statutes, and having found thus much his "final right" is 
 determined, subject only to the right which the House has to expel him by a two-thirds vote. 
 
 The resolution of reference is not to determine which claimant has the strongest case of favor or 
 grace, but which has the "right," i. e., the legal right, and we must find this much only. If no legal 
 right whatever, then we can find that and say so only under this resolution. 
 
 5. The only objection urged is polygamy. 
 
 My position on that point is: It is not a disqualification affecting (he legal right, but concerns only 
 the dignity of the House, and an investigation into matters which concern that alone must be instituted 
 in the House, and can not bo started in a contest made by a contestant; for the contest embraced and 
 committed to the committee under chapter 8, page 17, Revised Statutes, affects only the legal right. 
 (Maxwell r. Cannon, adopted by McCrary, S. 528.) 
 
 The reason for it is apparent and sound, otherwise any outsider, or pretender, or a real contestant, 
 or contestee, may proceed to take evidence of and spread upon the record any amount of scandal or any 
 charge affecting the moral character — the private character — of any Member of the House.
 
 § 473 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 513 
 
 The House must alone proceed to vindicate its own dignity and character, and does not allow any- 
 one outside of it to start and take evidence for them on that subject unless liy special order. Such an 
 investigation is usually referred to a special committee. 
 
 The principle involved is of more importance than the seating or unseating of any one Member. 
 
 I agree with all that is in the report against polygamy, and in the dut}- of Congress to obviate by 
 law its evils, so far as is possible, but let it be done by law and not in violation of law. 
 
 If Mr. Cannon is eligible under existing law and was duly elected and returned, as we find, we 
 give him his legal right to a seat because the law (sec. 1862) says he shall have it. 
 
 We can then exercise our right and expel him under another independent provision of the Con- 
 stitution upon a proceeding started and conducted in the usual and the legal way. We have hLs 
 admission, put in under protest, and may act on that if sufficient and if he does not demand a hearing. 
 
 Minority views signed by Messrs S. W. Moultou, of Illinois; Gibson Atberton, 
 of Ohio; L. H. Davis, of Mssouri; and G. W. Jones, of Texas, took the view that 
 Mr. Cannon was not disqualified, and was entitled to the seat. 
 
 The grave and important question as to whether polygamy is a disqualification for the office of 
 Delegate from the Territories we think is settled by the Constitution, the laws, and the uniform practice 
 of the Government since its formation, now nearly one hundred years. 
 
 As to who shall hold seats in Congress, there are two distinct provisions of the Constitution: 
 
 Section 5, Article I of the Constitution is as follows: 
 
 "Each House shall be the judge of the elections, returns, and qualifications of its own Members; 
 and a majority of each shall constitute a quorum to do business. * * *" 
 
 This provision in its operation requires only a majority vote. 
 
 Such has been the general practice of the House. 
 
 The other provision is, " Each House may determine the rules of its proceedings, punish its Members 
 for disorderly behavior, and, with the concurrence of two-thirds, expel a Member." (Second clause, 
 sec. 5, Art. I.) 
 
 The qualifications of Representatives are prescribed by the second section of the first article of the 
 Constitution: They shall be 25 years of age, seven years a citizen of the United States, and, when elected, 
 be inhabitants of the State in which they shall be chosen. 
 
 This committee is to report upon "the prima facie right or the final right of the claimants to the 
 seat as the committee shall deem proper." 
 
 It must be conceded, as we have seen, that Cannon has an overwhelming majority of the votes cast 
 for Delegate to Congress. 
 
 We think, also, it must be conceded, fnim the facts evidenced in the case by the record, that Cannon 
 possesses the constitutional qualifications prescribed by second section of Article I of the Constitution. 
 
 Mr. Cannon, at the time of his election, was over 25 years of age, had been seven years a citizen of 
 the United States, and was an inhabitant of the Territory in which he was chosen. These are the only 
 qualifications to be considered. 
 
 There is no power. State or Federal, under the Constitution by which these qualifications can be 
 changed, enlai^ed, or modified in any manner. 
 
 The authorities upon this question are all one way. 
 
 In the report of the Committee on Elections of the House in the Forty-third Congress, in the case 
 of Maxwell against Cannon, and upon this point, the committee say: 
 
 "The practice of the House has been so uniform and seems so entirely in harmony with the letter of 
 the Constitution that the committee can but regard the jurisdictional question as a bar to the considera- 
 ti in of qualifications other than those above specified." 
 
 This is the rule we think should be applied to the case before the House. 
 
 The following are some of the authorities on this point: Story on the Constitution, sections 625-627; 
 the contested-election cases of Fouk v. Trumbull and Turney v. Marshall from the State of Illinois 
 (1 Bartlett, 168; McCrary, Election Laws, sections 227, 228, 252); Donnelly r. Washburn, Forty-sixth 
 Congress; the case of Wittemore in Forty-first Congress: the case of Matteson in the Thirty-fifth Congress; 
 the case of Benjamin G. Harris, are all in point. 
 
 5994 — VOL 1—07 33
 
 514 PRECEDENTS OF THE HOUSE OF KEPBESENTATIVES. § 473 
 
 But it is said that it may be conceded that the rule above stated as to the power of the House 
 relating to Members is correct, but that a Delegate from the Territories is not a constitutional officer, 
 and does not as to qualification stand upon the same ground as a Member from a State, and that the 
 constitutional provision does not apply to a Delegate; that he is a nondescript, and has no right and can 
 claim no protection under the Constitution. 
 
 So far as our research has extended since the formation of the Government we can find no case 
 reported that makes any distinction between the qualifications of a Member from a State and a Delegate 
 from the Territory. 
 
 Whenever that question has arisen the rule as to qualifications has been the constitutional provision, 
 and this has been applied to the Delegates from the Territories. The case of James White, decided in 
 1794, is not an exception. 
 
 It may be that in express terms the Constitution does not apply to Territories; but the spirit and 
 reason of the Constitution does apply and establishes a proper standard. 
 
 If the constitutional standard is not adopted as to qualifications, then there is no rule for the govern- 
 ment of the House as to Delegates. 
 
 The House at this session may establish one rule, and the next session may revoke or establish 
 another and different one, and the right of a Delegate would be wholly uncertain. 
 
 There are laws that have been passed by Congress touching this subject that give color to the views 
 we present. These laws show that a Delegate, except as to a vote in the House, is put upon the same 
 footing as a Member from a State. 
 
 Besides, there has always been the same practice from the formation of the Government as to 
 Delegates and Members by referring their cases to the Committee on Elections, both being treated alike 
 in this respect. 
 
 The time, manner, and places of elections of Members of Congress, including Delegates from the 
 Territories, are prescribed and made the same by 14 United States Statutes, sections 25, 26, and 27. 
 
 By section 30, Revised Statutes, the oath of office of Members of Congress and Delegates from the 
 Territories is prescribed, and is the same for a Delegate as a Member. 
 
 It is important to remark that this statute was passed June 1, 1789, and has ever since been the law. 
 
 Section 35, Revised Statutes, provides that Members and Delegates are to be paid the same salarj-. 
 
 Section 51 provides that vacancies in the case of Delegates are to be filled in the same way as in 
 case of Members. 
 
 The organic law for Utah, September, 1850, provides: 
 
 "That the Constitution and laws of the United States are hereby extended over and declared to 
 be in force in said Territory of Utah, so far as the same or any provision thereof may be applicable." 
 
 This is a law of Congress passed by virtue of the Constitution, and is binding on Congress until 
 repealed. 
 
 Now, why is the provision of the Constitution relating to qualification of Members not applicable 
 to the Territories? What reason can be given why it should not apply? What better standard for 
 qualification can be made? 
 
 The adoption of the rule establishes uniformity and certainty, the operation is salutary, and its 
 adoption since the formation of the Government demonstrates its advantages and necessity. 
 
 The argument is made that a Delegate is not a constitutional officer, and, therefore, not a Member 
 of the House in the sense of the Constitution, and that the House may seat or unseat a Delegate at will. 
 We believe this is the first time since the formation of the Government that this argument has been 
 advanced. 
 
 If a Delegate from a Territory is not a Member by virtue of the Constitution and laws, then what 
 rule or law do you apply to him? Is it the arbitrary will or caprice of the House at each session? 
 
 If, as is said, a Delegate is not a Member, certainly you can not invoke any provision of the Constitu- 
 tion as to qualification or expulsion. 
 
 The constitutional rule wholly fails upon this theory. 
 
 It would follow from this view that the constitutional right of the House to judge of the election, 
 retiu-ns, and qualifications of its Members does not apply to Delegates, and therefore the House is without 
 constitutional power in the premises, and that whatever power the House possesses as to Delegates it 
 must be derived from some other source. 
 
 The extraordinary and dangerous doctrine is advanced by the majority of the committee —
 
 §473 
 
 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 515 
 
 "That the Delegates sit in the lower House by its grace and permission, and it makes no difference 
 whether that permission is expressed in a statute or mere resolution of the House. 
 "The House can at any time disregard it and reftise to be bound by it. 
 
 " It [Congress] can not affix a qualification by law for a Delegate and bind any House except the one 
 assenting thereto. Congress can not bind the Hotise by any law as to the qualification of a Delegate." 
 
 Our opinion is that it is competent for Congress, by a proper statute, to provide for the election in the 
 Territories of Delegates to Congress, under Article IV, section 3, clause 2: 
 
 ''The Congress shall have power to dispose of and make all needful rides and regulations respecting 
 the territory or other property belonging to the United States." 
 
 It has been decided under this article of the Constitution a great many times that it gives Congress 
 the right to legislate for the Territories, and to make such laws and rules as may be for the advantage of 
 the Territories and of the country. 
 
 Xow, under this clause of the Constitution, if, in the opinion of Congress, in making needful rules 
 and regulations respecting the Territories, it should be necessary to provide for the election of a Delegate 
 from said Territon,' to this House, and Congress should so provide that said Delegate should have a seat 
 and the right to debate, could the House alone nullify that law and refuse to seat the Delegate? 
 
 Why is not the House bound by constitutional laws? What right has the House to nullify and 
 refuse to obey a law it has helped to make? 
 
 We have already referred to various laws of Congress making express provisions for the election of 
 Delegates from the Territories, giving them a right to a seat in the House, and generally applying the 
 same rules to Delegates as Members, except Delegates have not the right to vote. 
 
 Also, as we have seen, the organic law of Utah adopts the Constitution and laws of the United 
 States, so far as applicable, as a part of that organic law. 
 
 Also, section 1891, Revised Statutes, gives the Constitution and laws force and effect in all the 
 Territories, so far as applicable. 
 
 The law-making department of the Government has made these various laws in a constitutional 
 way, and until repealed they are binding upon every individual in the land and every department of the 
 Government, including Congress. No one is above the laws in this country. 
 
 Certainly one House alone can not repeal a law of Congress nor nullify it by any direct or indirect 
 proceeding. It is absolutely bound by the law. 
 
 If Congress has the right to make a law and provide for the election of Delegates to this House, and 
 if the constitutional qualifications do not apply to them, and there is no statute fixing their qualifications, 
 it would seem to follow that the House would be bound to admit as a Delegate under the law such persons 
 as the people of the Territory' might elect to represent them, however obnoxious they might be to the 
 House. The people of the Territory being satisfied, no one else can complain. 
 
 Suppose Congress should pass a law providing that Cabinet officers should be allowed seats in the 
 House, with the privilege of answering questions put to them relating to the Executive Department, and 
 the other Departments of which they were chief, and with the right to debate. 
 
 Then, could the House refuse to permit these officers seats and the privileges accorded to them 
 under the law? 
 
 Could the House refuse them a seat on the ground that they were not qualified, and set up some 
 fanciful standard of qualifications not prescribed by the statute? 
 
 Could the House exclude them under the law upon the ground that they were heretics, or Mormons, 
 or polygamists — Catholics, Democrats, Republicans, or Greenbackers? 
 
 Would not the House be bound to obey the law that had been made by Congress and permit the 
 Cabinet to seats, however offensive they might be personally? 
 
 The logic of the majority of the committee is that one House alone could nullify the laws and exclude 
 ad libitum. 
 
 In the Forty-third Congress, in the case of Maxwell v. Cannon, precisely the same question was 
 involved in that case as in the one before the committee. 
 
 The question was stated this way: 
 
 '• That George Q. Cannon is not qualified to represent said Territory' or to hold his seat in the Forty- 
 third Congress, for the reason, as shown by the evidence, that he, on and before the day of the election, in 
 August, 18T2, was openly living and cohabiting with four women, as his wives, in Salt Lake City, in 
 Utah Territory, and he is still living and cohabiting with them."
 
 516 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 473 
 
 On the question of qualifications, and the effect of making the Constitution a part of the law by act 
 of Congress, the committee say: 
 
 "It being conceded that the contestee has these qualifications, one other inquiry only under this 
 head remains, to wit: Does the same rule apply in considering the case of a Delegate as a Member of this 
 House? This question seems not to have been raised heretofore. The act organizing the Territory of 
 Utah, approved September 9, 1850, enacts that the Constitution and laws of the United States are hereby 
 extended over, and declared to be in force in, said Territory of Utah, so far as the same, or any provision 
 thereof, may be applicable. It was said, on the argument, that the Constitution can not be extended 
 over the Territories by act of Congress, and the views of Mr. Webster were quoted in support of this 
 position. 
 
 "We do not deem it necessary to consider that question, because it will not be denied that Congress 
 had the power to make the Constitution a part of the statutorj- law of the Territory as much as any portion 
 of the organic act thereof. For the purposes of this inquiry it makes no difference whether the Constitu- 
 tion is to be treated as constitutional or statutorj- law. If either, it is entitled to be considered in dispos- 
 ing of this case." 
 
 Upon this point there does not seem to have been any difference of opinion in the committee. 
 
 The committee, in the same case, referring to the question of polygamy, say: 
 
 "The question raised in the specification of contestant's counsel, and above transcribed, is a grave 
 one, and unquestionably demands the consideration of the House. This committee, while having no 
 desire to shrink from its investigation, finds itself confronted with the question of jurisdiction under the 
 order referring the case. 
 
 "The Committee on Elections was organized under and pursuant to article 1, section 5, of the 
 Constitution, which declares: 'Each House shall be the judge of the elections, returns, and qualifica- 
 tions of its own Members.' The first standing committee appointed by the House of Representatives 
 was the Committee on Elections. It was chosen by ballot, on the 13th day of April, 1789; and from 
 that time to this, in the vast multitude of cases considered by it, with a few unimportant exceptions, in 
 which the point seems to have escaped notice, the range of its inquiry has been limited to the execution 
 of the power conferred by the above provision of the Constitution. 
 
 " What are the qualifications here mentioned and referred to the Committee on Elections? Clearly, 
 the constitutional qualifications, to wit, that the claimant shall have attained the age of 25 years, been 
 seven years a citizen of the United States, and shall be an inhabitant of the State in which he shall be 
 chosen. The practice of the House has been so uniform, and seems so entirely in harmony with the 
 letter of the Constitution, that the committee can but regard the jurisdictional question as a bar to the 
 consideration of qualifications other than those above specified, mentioned in the notice of contest, and 
 hereinbefore alluded to. 
 
 "We conclude that the question submitted to us, under the order of the House, comes within the 
 same principles of jurisidiction as if the contestee were a Member, instead of a Delegate." 
 
 The minority said: 
 
 " It is admitted in the report, and the fact has not been and is not denied, that Mr. Cannon possesses 
 the constitutional qualifications, unless the qualifications of a Delegate in Congress from a Territorj' 
 differ from the qualifications fixed by the Constitution for a Member of the House. There can be no 
 sufficient reason assigned for the position that the qualifications are any different. * * * The line 
 of demarkation between these two great powers of the House, the power to judge of the elections, returns, 
 and qualifications of its own Members, by a mere majority vote, and the power to expel its Members by 
 a two-thirds vote, is clear and well defined." 
 
 The "views" of the minority on the point were further expressed in these words: 
 
 "But a graver question than those we have considered is the question whether the House ought, as 
 a matter of policy, or to establish a precedent, to expel either a Delegate or Member on account of 
 alleged crimes or immoral practices, unconnected with their duties or obligations as Members or Dele- 
 gates, when the Member or Delegate possesses all the qualifications to entitle him to his seat. 
 
 "If we are to go into the question of the moral fitness of a Member to occupy a seat in the House, 
 where will the inquiry stop? What standard shall we fix in determining what is and what is not suffi- 
 cient cause for expulsion? If a number of Members engage in the practice of gaming for money or other 
 valuable thing, or are accused of violating the marital vow by intimate association with four women, 
 three of whom are not lawful wives, or are charged with any other offense, and a majority of the House,
 
 § 473 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 517 
 
 or even two-thirds, expel them, it may be the recognition of a dangerous power and policy. If exercised 
 and adopted by one political party to accomplish partisan ends, it furnishes a precedent which it will 
 be insisted justifies similar action by the opposite party, when they have a majority or a two-thirds 
 majority in the House; and thus the people are deprived of representation, and their Representatives, 
 possessing the necessary qualifications, are expelled for causes outside of the constitutional qualifica- 
 tions of Members, or those which a Delegate must possess, so far as his qualifications are fixed by reason 
 or analogy, or are drawn from the principles of our representative system of government." 
 
 It may be stated that the reports, both of the majority and minority, were made by Republicans. 
 
 That is a precedent that covers the case before this committee in every particular. It was exhaust- 
 ively discussed in the committee and in the House, and was adopted by the House by an overwhelming 
 majority, and it stands to-day as the rule and law of the House, unless it shall be reversed. 
 
 The issue in that case was sharply made, and the rule established that Delegates from Territories 
 are entitled to the benefit of the constitutional limitations as to qualifications, and that polygamy was 
 not a disqualification. 
 
 Xow, if the rule that has been established and practiced since the formation of the Government 
 as to qualification for Members and Delegates to the House is to be reversed and a different rule adopted, 
 what standard shall it be? 
 
 This House may exclude a Member on a charge of polygamy. The next House may exclude a 
 person elected because he is a heretic or a Catholic or a Methodist, or because he had been charged by 
 his opponent with adultery or some other offense. 
 
 Everyone can see that such a rule or license would be dangerous to the rights and liberties of the 
 citizens and an end to republican government. 
 
 The party in power would be governed by arbitrary will and caprice alone. 
 
 Mr. Cannon, the contestant here, claims in good faith that polygamy is a religious conviction and 
 principle with him and his people, and in this he is entitled to protection under the Constitution. 
 
 The people he represents have elected him and are satisfied with him, and this House should be 
 content. 
 
 The sixth article of the Constitution provides that — 
 
 "\o religious test shall ever be required as a qualification for any oflSce of public trust under the 
 United States." 
 
 It seems to us that the contestant is entitled to the above provision of the Constitution as a pro- 
 tection. He has been convicted of no crime and there is no law on the statute book that disqualifies 
 him as a Delegate. 
 
 On the majority view that Mr. Cannon was disqualified and should be excluded 
 another question arose as to whether or not Mr. Campbell should be admitted to 
 the seat. The majority of the committee took the view that as he had only a minor- 
 ity of the votes he could not be admitted under the American practice. 
 
 The question was debated at length on April 18 and 19, 1882,' the main point 
 at issue being the status of a Delegate in reference to qualifications. On the latter 
 day the resolution of the minority declaring Mr. Cannon elected and entitled to 
 the seat was offered as a substitute for the majority resolutions and was disagreed 
 to — yeas 79, nays 123. 
 
 Then the resolutions of the majority were agreed to without division,^ as follows: 
 
 Resolved, That Allen G. Campbell is not entitled to a seat in this Congress as a Delegate from the 
 Territory of Utah. 
 
 Resolved. That George Q. Cannon is not entitled to a seat in this Congress as a Delegate from the 
 Territory of Utah. 
 
 Resohed. That the seat of the Delegate from the Territory of Utah be, and the same hereljy is, 
 declared vacant. 
 
 ' Record, pp. 3001, 3045-3075. ^ Journal, pp. 1072-1074.
 
 518 PRECEDENTS OF THE HOUSE OF EEPKESENTATIVES. § 474 
 
 474. The case of Brigham H. Roberts, in the Fifty-sixth Congress. 
 
 The House declined to permit the oath to be administered to Brigham 
 H. Roberts pending an examination of his qualifications by a committee. 
 
 In 1899 a Member who challenged the right of a Member-elect to be 
 sworn did so on his responsibility as a Member and on the strength of 
 documentary evidence. 
 
 In 1899 a Member-elect, challenged as he was about to take the oath, 
 stood aside on request of the Speaker. 
 
 The House, by unanimous consent, deferred until after the comple- 
 tion of the organization the question of Brigham H. Roberts's right to 
 take the oath. 
 
 The right of Brigham H. Roberts to take the oath and his seat being 
 under consideration, he was permitted to speak, by unanimous consent. 
 
 In 1899 the House referred the case of Brigham H. Roberts to a com- 
 mittee, with directions to report on both the prima facie and final right. 
 
 In the case of Brigham H. Roberts the committee reported at one and 
 the same time on both the prima facie and final right. 
 
 On December 4, 1899,' at the time of the organization of the House, and while 
 the swearing in of the Members was proceeding, the State of Utah was called. There- 
 upon Mr. Robert W. Tayler, of Ohio, said: 
 
 Mr. Speaker, I object to the swearing in of the Representative-elect from Utah and to his taking 
 a seat in this body. I do so, Mr. Speaker, on my responsibility as a Member of this House, and because 
 specific, serious, and apparently well-grounded charges of ineligibility are made against him. A tran- 
 script of the proceedings of court in Utah evidences the fact that the claimant was in 1889 convicted, 
 or that he pleaded guilty, of the crime of unlawful cohabitation. Affidavits and other papers in my 
 possession indicate that ever since then he has been persistently guilty of the same crime, and that 
 ever since then he has been and is now a polygamist. If this transcript and these affidavits and papers 
 tell the truth, the Member-elect from Utah is, in my judgment, ineligible to be a Member of this House 
 of Representatives both because of the statutory disqualification created by the Edmunds law and 
 for higher and graver and quite as sound reasons. I ought also to say, in addition to what I have just 
 said, that I have in my possession a certified copy of the court record under which the claimant to this 
 seat was supposed to be naturalized, and that eminent counsel assert that if that be the record in the 
 case there is grave doubt if the claimant is a citizen of the United States. I offer and express no opinion 
 upon that proposition. 
 
 Mr. Speaker, if it were possible to emphasize the gravity of these charges and of the responsibility 
 that is at this moment imposed upon this House, we will find that emphasis in the memorials, only a 
 small part of which could be physically cared for in this Hall, but all of which I now present to the 
 House, from over 7,000,000 American men and women, protesting against the entrance into this House 
 of the Representative-elect from Utah. 
 
 The Speaker requested the Member-elect from Utah to step aside until the 
 remainder of the Members-elect were sworn in. 
 Then Mr. Tayler offered this resolution: 
 
 Whereas it is charged that Brigham H. Roberts, a Representative-elect to the Fifty-sixth Con- 
 gress from the State of Utah, is ineligible to a seat in the House of Representatives; and 
 
 AMiereas such charge is made through a Member of this House, on his responsibility as such Mem- 
 ber and on the basis, as he asserts, of public records, affidavits, and papers evidencing such ineligibility: 
 
 Resolved, That the question of the prima facie right of Brigham H. Roberts to be sworn in as a Rep- 
 
 ' First session Fifty-sixth Congress, Record, p. 5; Journal, p. 6.
 
 § 4:74 POLYGAMY AND OTHER CRIMES AS DISQITALIDTCATIONS. 519 
 
 resentative from the State of Utah in the Fifty-sixth Congress, as -well as of his final right to a seat therein 
 as such Representative, be referred to a special committee of nine Members of the House, to be appointed 
 by the Speaker; and untQ such committee shall report upon and the House decide such question and 
 right the said Brigham H. Roberts shall not be sworn in or be permitted to occupy a seat in this House; 
 and said committee shall have power to send for persons and papers and examine witnesses on oath in 
 relation to the subject-matter of this resolution. 
 
 By unanimous consent the consideration of the resolution was postponed until 
 after the organization of the House had been completed and the President's message 
 had been received and read.' 
 
 On December 5,- the resolution being considered, Mr. James D. Richardson, of 
 Tennessee, offered the following amendment in the nature of a substitute : 
 
 Whereas Brigham H. Roberts, from the State of Utah, has presented a certificate of election in 
 due and proper form as a Representative from said State: Therefore, be it 
 
 Resolved, That without expressing any opinion as to the right or propriety of his retaining his seat 
 in advance of any proper investigation thereof, the said Brigham H. Roberts is entitled to be sworn 
 in as a Member of this House upon his prima facie case. 
 
 Resolved further, That when sworn in his credentials and all the papers in relation to his right to 
 retain his seat be referred to the Committee on the Judiciary, with instructions to report thereon at 
 the earliest practicable moment. 
 
 During the debate Mr. Roberts, by imanimous consent, addressed the House. 
 
 On a division the amendment was disagreed to — 59 ayes, 247 noes. The reso- 
 lution was then agreed to — 304 j'eas, 32 nays. 
 
 The Speaker appointed the following special committee: Robert W. Tayler, of 
 Ohio; Charles B. Landis, of Indiana; Page Morris, of Minnesota; R. H. Freer, of 
 West Virginia; Charles E. Littlefield, of Maine; Smith McPherson, of Iowa; David 
 A. DeArmond, of Missouri; Samuel W. T. Lanham, of Texas; Robert W. Miers, of 
 Indiana. 
 
 The committee reported' on January 20, 1900, the majority holding that Mr. 
 Roberts ought not to have a seat in the House and declaring his seat vacant. As to 
 the prima facie right the committee say: 
 
 Upon this question little need be said except what is hereafter said in relation to the final right 
 to a seat. The questions are inextricably interwoven, and for convenience the main body of authority 
 against his prima facie right to be sworn in is presented in the argument made against his final right 
 to a seat. 
 
 Both Houses of Congress have in innumerable instances exercised the right to stop a Member-elect 
 at the threshold and refuse to permit him to be sworn in until an investigation had been made as to 
 his right to a seat. In some cases the final right was accorded the claimant; in many cases it was denied. 
 
 This question, as we veiw it, is always to be answered from the standpoint of expediency and 
 propriety. The inherent right exists of necessity. The danger of disorder and of blocking the way to an 
 organization vanishes in veiw of the proper procedure. The most strenuous objection is made by those 
 who imagine, for instance, that if the person whose name was first called should be objected to, he might 
 refuse to stand aside until the remaining Members were sworn in. The claim is made that this must 
 inevitably result in confusion and demoralization, and in furnishing an opportunity for an arbitrary 
 and unjust exercise of power on the part of the House. 
 
 ' Mr. Roberts did not vote on the roll call which occurred after this action took place. His name 
 was stricken from the roll and not again called. 
 
 ^ First session Fifty-sixth Congress, Record, pp. 38-53; Journal, p. 34. 
 ^ House Report Xo. 85, first session Fifty-sixth Congress.
 
 520 
 
 PEECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 §475 
 
 The answer to this is that every person holding a certificate, whose name is on the Clerk's roll, where 
 it is placed by operation of law, is entitled to participate in the organization of the House, whether sworn 
 in or not. Such is the effect and the only effect of the certificate. If the Members-elect, other than 
 the person objected to, desire so to do they can prevent his being sworn in. This lodges no more power 
 in the majority, however arbitrary it may be, than that majority always has, whether on the day of the 
 organization or a week or a month thereafter. 
 
 The fear that injustice may be done by it in time of great party excitement is not justly grounded 
 in theory, nor has it occurred in practice; while on the other hand injustice has often occurred in the 
 unseating of Members in case of contested elections. It is always, whether at the threshold or after the 
 House is fully organized, a question of the power of the majority. It is no more dangerous or disor- 
 ganizing in the one instance than in the other. There can be no injustice done when every man holding 
 a certificate, whether sworn in or not, is entitled to vote for a Speaker and upon the right of every 
 other Member-elect to be sworn in. 
 
 If, by way of illustration, Mr. Roberts had been the first person whose name was called, and he had 
 objected to standing aside, the House, for the purpose of organization, and for the purpose of voting upon 
 the question as to whether he should then be sworn in, would be completely organized, and every 
 other Member present, although not one of them had been sworn in, would be entitled to vote upon that 
 question. This, it seems to us, dissolves every imagined difficulty and permits the easy organization 
 of the House. 
 
 If every individual Member had been objected to, seriatim, the only objectionable result would 
 have been the inconvenience and delay involved in the time necessary to vote upon all the cases. 
 
 Judge McCrary's statement (sections 283 and 284 in his work on Elections) is a sound and correct 
 declaration of the law applicable to the right of the House to compel a Member who is objected to to 
 stand aside, and not permit him to be sworn in until his case is investigated. It is as follows: 
 
 "If a specific and apparently well-grounded allegation be presented to the House of Representa- 
 tives of the United States that a person holding a certificate of election is not a citizen of the United 
 States, or is not of the requisite age, or is for any other cause ineligible, the House will defer action upon 
 the question of swearing in such person until there can be an investigation into the truth of such 
 allegations. 
 
 "It is necessary, however, that such allegations should be made by a responsible party. It is 
 usually made, or vouched for, at least, by some Member or Member-elect of the House. It is to be 
 presented at the earliest possible moment after the meeting of the House for organization, and generally 
 at the time that the person objected to presents himself to be sworn in. The person objected to upon 
 such grounds as these is not sworn in with the other Members, but stands aside for the time being, and 
 the House, through its committee, will with all possible speed proceed to inquire into the facts. 
 
 "The certificate of election does not ordinarily, if ever, cover the grounds of the due qualifications 
 of the person holding it. It may be said that by declaring the person duly elected the certificate by 
 implication avers that he was qualified to be elected and to hold the office. But it is well known that 
 canvassing officers do not in fact inquire as to the qualifications of persons voted for; they certify what 
 appears upon the face of the returns and nothing more." 
 
 This is not quoted as being authoritative in itself, but because it is an exact statement of what the 
 precedents and authorities on that subject clearly disclose. 
 
 The minority of the committee, Messrs. Littlefield and De Armond, filed views 
 in opposition, holding that Mr. Roberts had the constitutional right to take the 
 oath of office and be admitted to his seat on his prima facie right.' 
 
 475. The case of Brigham H. Roberts, continued. 
 
 In the investigation of the qualifications of Brigham H. Roberts, the 
 committee permitted his presence and suggestions during discussion of 
 the plan and scope of the inquiry. 
 
 Witnesses were examined under oath and in the presence of Brigham 
 H. Roberts during the committee's investigation of his qualifications. 
 
 ' House Report No. 85, Part II, first session Fifty-sixth Congress, pp. 53-77.
 
 § 476 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 521 
 
 In considering the qualifications of Brigham H. Roberts the commit- 
 tee tendered to him the opportunity to testify in his own behalf. 
 The committee also state in regard to the method of procedure : 
 
 The committee met shortly after its appointment, and in Mr. Roberts's presence discussed the plan 
 and scope of its inquiry. Mr. Roberts submitted certain motions and supported them by argument, 
 questioning the jurisdiction of the committee and its right to report against his prima facie right to a 
 seat in the House of Representatives. The determination of these questions was postponed by the 
 committee, to be taken up in the general consideration of the case. 
 
 Subsequently certain witnesses appeared before the committee and were examined under oath, 
 in the presence of Mr. Roberts and by him cross-examined, relating to the charge that ho was a polyga- 
 mist. This testimony has been printed and is at the disposal of the Members of the House. 
 
 The committee fully heard Mr. Roberts and gave him opportunity to testify if he so desired, which 
 he declared he did not wish to do.^ 
 
 476. The case of Brigham H. Roberts, continued. 
 
 In a sustained report in 1900 the majority of the committee favored 
 the exclusion and not the expulsion of a Member-elect admitted to be 
 engaged in practice of polygamy. 
 
 Discussion of the power of expulsion under the Constitution. 
 
 May the House expel a Member-elect before he is sworn in? 
 
 Preliminary to the discussion the committee agreed unanimously on the follow- 
 ing finding of facts : 
 
 We find that Brigham H. Roberts was elected as a Representative to the Fifty-sixth Congress 
 from the State of Utah and was at the date of his election above the age of 25 years; that he had been 
 for more than seven years a naturalized citizen of the United States and was an inhabitant of the State 
 of Utah. 
 
 We further find that about 1878 he married Louisa Smith, his first and lawful wife, with whom 
 he has ever since lived as such, and who since their marriage has borne him six children. 
 
 That about 1885 he married as his plural wife Celia Dibble, with whom he has ever since lived 
 as such, and who since such marriage has borne him six children, of whom the last were twins, born 
 August 11, 1897. 
 
 That some years after his said marriage to Celia Dibble he contracted another plural marriage 
 with Margaret C. Shipp, with whom he has ever since lived in the habit and repute of marriage. Your 
 committee is unable to fix the exact date of this marriage. It does not appear that he held her out 
 as his wife before January, 1897, or that she before that date held him out as her husband, or that before 
 that date they were reputed to be husband and wife. 
 
 That these facts were generally known in Utah, publicly charged against him during his cam- 
 paign for election, and were not denied by him. 
 
 That the testimony bearing on these facts was taken in the presence of Mr. Roberts, and that he 
 fully cross-examined the witnesses, but declined to place himself upon the witness stand. 
 
 The examination of the law and the precedents applicable to the facts stated 
 above involved an examination of several subjects: 
 
 1. As to whether the proper remedy should be exclusion or expulsion. 
 The majorit}^ of the committee held: 
 
 The objection is made to the refusal to admit Roberts that the Constitution excludes the idea that 
 any objection can be made to his coming in if he is 25 years of age, has been seven years a citizen 
 of the United States, and was an inhabitant of Utah when elected, no matter how odious or treasonable 
 or criminal may have been his life and practices. 
 
 ' The meetings of the committee during this examination were open and not secret.
 
 522 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 476 
 
 To this we reply: 
 
 1. That the language of the constitutional provision, the history of its framing in the Constitu- 
 tional Convention, and its context clearly show that it can not be construed to prevent disqualification 
 for crime. 
 
 2. That the overwhelming authority of text-book writers on the Constitution is to the effect that 
 such disqualification may be imposed by the House, and no commentator on the Constitution specifically 
 denies it. Especial reference is made to the works of Gushing, Pomeroy, Throop, Burgess, and Miller. 
 
 3. The courts of several of the States, in construing analogous provisions, have with practical 
 unanimity declared against such narrow construction of such constitutional provisions. 
 
 4. The House of Representatives has never denied that it had the right to exclude a Member-elect, 
 even when he had the three constitutional requirements. 
 
 5. In many instances it has distinctly asserted its right so to do in cases of disloyalty and crime. 
 
 6. It passed in 1862 the test-oath act, which imposed a real and substantial disqualification for 
 membership in Congress, disqualifying hundreds of thousands of American citizens. This law remained 
 in force for twenty years, and thousands of Members of Congress were compelled to take the oath it 
 required. 
 
 7. The House in 1869 adopted a general rule of order, providing that no person should be sworn 
 in as a Member against whom the objection was made that he was not entitled to take the test oath, 
 and if upon investigation such fact appeared, he was to be permanently debarred from entrance. 
 
 The interesting proposition is made that the claimant be sworn in and then turned out. Upon 
 the theory that the purpose is to permanently part company with Mr. Roberts, this is a dubious pro- 
 ceeding. Such action requires the vote of two-thirds of the Members. We ask if such a vote is possible 
 or right, in view of the following observations. 
 
 The expulsion clause of the Constitution is as follows: 
 
 "Each House may determine the rules of its proceedings, pimish its Members for disorderly beha- 
 vior, and, with the concurrence of two-thirds, expel a Member." 
 
 No lawyer can read that provision without raising in his own mind the question whether the House 
 has any power to expel, except for some cause relating to the context. The ablest lawyers, from the 
 beginning of the Republic, have so insisted and their reasoning has been so cogent that these proposi- 
 tions are established, namely: 
 
 1. Neither House of Congress has ever expelled a Member for acts unrelated to him as a Member 
 or inconsistent with his public trust and duty as such. 
 
 2. Both Houses have many times refused to expel where the guilt of the Member was apparent; 
 where the refusal to expel was put upon the ground that the House or Senate, as the case might be, 
 had no right to expel for an act unrelated to the member as such, or because it was committed prior to 
 his election. 
 
 The majority then proceed to quote and comment on the cases of Humphrey 
 Marshall, John Smith, and WilHam N. Roach in the Senate; and those of O. B. 
 Matteson, Oakes Ames James Brooks, George Q. Cannon, and Schumacher and 
 King in the House. 
 
 After commenting on the bearing of these cases, the majority continue: 
 
 If there is any fact apparent in this case it is that the constituents of Mr. Roberts knew all about 
 him before his election. 
 
 Can there be room to doubt the proper action of the House? Is it prepared to yield up this salu- 
 tary power of exclusion? Will it declare itself defenseless and ridiculous? 
 
 Nor are those who assert that expulsion is the remedy necessarily barred from voting for the reso- 
 lution declaring the seat vacant. He must, indeed, be technical and narrow in his construction of the 
 Constitution who will not admit that if a vote to declare the seat vacant is sustained by a two-thirds 
 majority the Constitution is substantially complied with. He may not agree with the committee that 
 a mere majority can exclude, but he can reserve the right to make the point of order that the resolution 
 is not carried if two-thirds do not vote for it.
 
 § 476 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS, 523 
 
 Recurring again in their report to the right to expel, the majority say: 
 
 Upon this alternative proposition that the proper method of procedure is to permit the claimant 
 to be sworn in, and then, if a two-thirds vote can be obtained to expel him, we desire to call attention 
 first of all to what Storj' says on that subject, section 837: 
 
 "The next clause is, ' Each House may determine the rules of its proceedings, punish its Members 
 for disorderly behavior, and, with the concurrence of two-thirds, expel a Member.' No person can 
 doubt the propriety of the provision authorizing each House to determine the rules of its own proceed- 
 ings. If the power did not exist, it would be utterly impracticable to transact the business of the nation, 
 either at all, or at least with decency, deliberation, and order. The humblest a^^sembly of men is under- 
 stood to possess this power, and it would be absurd to deprive the councils of the nation of a like authority. 
 But the power to make rules would be nugatorj', unless it was coupled with a power to punish for dis- 
 orderly beha\'ior or disobedience to those rules. And as a Member might be so lost to all sense of dignity 
 and duty as to disgrace the House by the grossness of his conduct, or interrupt its deliberations by per- 
 petual violence of clamor, the power to expel for very aggravated misconduct was also indispensable, 
 not as a common but as an ultimate redress for the grievance." 
 
 And again, section 8.38: 
 
 "What must be the disorderly behavior which the House may punish, and what punishment other 
 than expulsion may be inflicted, do not appear to have been settled by any authoritative adjudication 
 of either House of Congress. A learned commentator supposed that Members can only be punished for 
 misbehavior committed during the session of Congress, either within or without the walls of the House, 
 though he is also of opinion that expulsion may be inflicted for criminal conduct committed in any 
 place." 
 
 And after a reference to the Blount case Story says: 
 
 "It seems, therefore, to be settled by the Senate upon full deliberation that expulsion may be for 
 any misdemeanor which, though not punishable by any statute, is inconsistent with the trust and duty 
 of a Senator." 
 
 On the subject of expulsion, Rawle says, second edition, page 48: 
 
 "Both the Senate and the House of Representatives possess the usual power to judge of the elec- 
 tions and qualifications of their own Members, to punish them for disorderly behavior, which may be 
 carried to the extent of expulsion, provided two-thirds concur. It had not been yet precisely settled 
 what must be the disorderly behavior to incur the punishment, nor what kind of punLshment is to be 
 inflicted. * » *" 
 
 Paschal on the Constitution, page 87: 
 
 "It seems to be settled that a Member may be expelled for any misdemeanor which, though not 
 punishable by any statute, is inconsistent with the trust and duty of a Member." 
 
 We do not need to call particular attention to the phraseologj' of the constitutional provision, nor 
 do we think it verj' important to consider the evolution, from the standpoint of punctuation, through 
 which that provision went in the constitutional convention. It now appears as following in the same 
 sentence as the provision for disorderly behavior, with only the rhetorical separation of a comma from it. 
 
 It thus appears that the language of the provision for expulsion, in the view of the ablest com- 
 mentators, furnishes clear and cogent reasons for its construction, and that neither House ought to expel 
 for any cause unrelated to the trust or duty of a Member. 
 
 This has been the uniform practice of both Houses of Congress. 
 
 The case of Hiss v. Bartlett (3 Gray, 468) is cited as showing the imlimited power of a legislative 
 body to expel. 
 
 A casual reading of this case, which a careful reading confirms, will show that it directly sustains 
 the position of the majority. 
 
 As there was no constitutional provision in Massachusetts respecting expulsion, the legislature of 
 that State was, of course, clothed with all the powers incident to expulsion which are inherent in a 
 legislative body whose powers are not limited by a constitution. 
 
 In addition to that, Hiss was expelled on the ground that his "conduct on a visit to Lowell, as 
 one of a committee of the house, was highly improper and disgraceful, both to himself and to the house 
 of which he was a member."
 
 524 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 476 
 
 Everything said by the court had relation to such a state of facts. The case is one of expulsion 
 for gross misconduct as a member and in the performance of his duty as a member. 
 
 Neither House has ever expelled a Member for any cause unrelated to the trust or duty of a Member. 
 
 Botli Houses have refused to expel where the proof of guilt was clear, but where the offense charged 
 was unrelated to the trust or duty of a Member. 
 
 Again the majority review the precedents in the House and Senate, including 
 the case of Herbert in the Thirty-fourth Congress. 
 
 The mmority views, after discussing the cases of Matteson ua the House and 
 Smith in the Senate, say: 
 
 The Matteson case was in 1858. With the exception of a suggestion that a case had been decided 
 in Massachusetts, the purport of which was not stated, no reference was made to a leading Massachusetts 
 case. The opinion of the court in that case, an authoritative construction of the clause of the consti- 
 tution under which they were acting, was written by Chief Justice Shaw, conceded to be one of the 
 greatest judges that ever sat in any court in any land at any time. The report containing it was pub- 
 lished in 1857. It is the only case which we have been able to find where the court has had occasion, 
 with authority, to determine this precise question. The constitution of Massachusetts contained no 
 provision authorizing the expulsion of a member of the house of representatives. Joseph Hiss was 
 expelled by the house upon the ground that his conduct on a committee at Lowell "was highly improper 
 and disgraceful, both to himself and to this body of which he is a member." This was not disorderly- 
 conduct in the house, and it is significant that the facts that made it "improper and disgraceful " were 
 not disclosed by the case. 
 
 Hiss, after his expulsion, was arrested at the instance of one of his creditors on mesne process and 
 committed to jail. He brought a petition for habeas corpus on the ground that he was a member of 
 the house of representatives, and as such privileged from arrest. This raL^ed the precise question of 
 the legality of his expulsion, and speaking through Chief Justice Shaw, the court, among other things, 
 said: 
 
 "The question is whether the house of representatives have the power to expel a member." 
 
 After adverting to the fact that the constitution did not in terms authorize expulsion, he says: 
 
 "There is notliing to show that the framers of the constitution intended to withhold this power. 
 It may have been given expressly in other States, either ex majori cautela, or for the purpose of limiting 
 it. by requiring a vote of more than a majority." 
 
 In the Constitution of the United States it was given evidently "for the purpose of limiting it," 
 as a two-thirds vote is required. 
 
 Again: 
 
 "The power of expulsion is a necessary and incidental power, to enable the house to perform its 
 high functions, and is necessary to the safety of the State. It is a power of protection. A member 
 may be physically, mentally, or morally, wholly unfit; he may be afflicted with a contagious disease, 
 or insane, or noisy, violent and disorderly, or in the habit of using profane, obscene, and abusive lan- 
 guage. It is necessary to put extreme cases to test a principle. 
 
 "If the power exists, the house must necessarily be the sole judge of the exigency which may 
 justify and require its exercise." 
 
 After having fully examined the law and practice of Parliament, he says: 
 
 "But there is another consideration, which seems to render it proper to look into the law and practice 
 of Parliament to some extent. I am strongly inclined to believe, as above intimated, that the power 
 to commit and to expel its Members was not given to the House and Senate, respectively, because it was 
 regarded as inherent, incidental, and necessary, and must exist in every aggregate and deliberative body, 
 in order to the exercise of its functions, and because without it such body would be powerless to accom- 
 plish the pm-poses of its constitution; and therefore any attempt to express or define it would impair 
 rather than strengthen it. This being so, the practice and usage of other legislative bodies exercising 
 the same functions imder similar exigencies and the reason and groimds, existing in the nattrre of 
 things, upon which the irrules and practice have been founded, may serve as an example and as some 
 guide to the adoption of good rules, when the exigencies arise under our Constitution. 
 
 "But independently of pailiamentary custom and usages, our legislative houses have the power to 
 protect themselves, by the punishment and expulsion of a Member.
 
 § 476 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 525 
 
 ■■ ' It is urged that this court will inquire whether the petitioner has been tried. But if the House 
 have jurisdiction for any cause to expel, and a court of justice finds that they have in fact expelled — ' " 
 
 He then held that their action was conclusive, and dismissed the petition. (Hiss v. Bartlett. 3 
 Gray, 468.) 
 
 It is instructive on this point to note that this paragraph of the Constitution, as originally drawn, 
 read: 
 
 "Each House may determine the rules of its proceedings; may punish its Members for disorderly 
 beha-vior: and may expel a Member; " making three distinct clauses separated by semicolons. 
 
 This extract from the records of the-debates in the Federal Convention shows clearly why the 
 two-thirds provision was inserted in the expulsion clause: 
 
 ■'Mr. Madison observed that the right of expulsion (art. 6, sec. 6) was too important to be exercised 
 by a bare majority of a quorum; and, in emergencies of faction, might be dangerously abused. He 
 moved that "with the concurrence of two-thin'.s," might be inserted between 'may" and "expel." 
 
 ■'Mr. Randolph and Mi-. Mason approved the idea. 
 
 " Mr. (louvemeur Morris. This power maybe safely trusted to a majority. A few men, from 
 factious motives, may keep in a Member who ought to be expelled. 
 
 "Mr. Carroll thought ihat the concurrence of two-thirds, at least, ought to be required. 
 
 "On the question requiring two-thirds, in cases of expelling a Member, ten States were in the 
 affirmative; Pennsylvania divided." 
 
 Article 6, sec. 6, as thus amended, was then agreed to, nem con. (Madison Papers, Vol. V, p. 406.) 
 
 While we think this Hiss case establishes beyond successful controversy the power of expulsion os 
 discretioudjy and unlimited, it is proper to note that no decided case or elementary writer militates 
 against it. ^^ e give all that we have found on the question. 
 
 In discussing this question the court, in State v. Jersey City (25 JJ. J. L., 539\ said: 
 
 "The power vested in the two Houses of Congress by the Constitution, article 1, section 5, paragraph 
 2, is in different phraseology; it is, that "each House may determine the rules of its proceedings, punish 
 its Members for disorderly behavior, and, with the concurrence of two-thirds, expel a Member." Under 
 this power, the Senate in 1797 expelled a Member of that body for an offense not committed in his official 
 character as a Member, nor during a session of Congress, nor while the Member was at the seat of govern- 
 ment. (Blount's case. Story's Commentaries on the Constitution, ch. 12, sec. 836.) But it is not clear 
 that the power to expel is limited by the Constitution to the caiise of disorderly behavior. 
 
 E\'idently without having in mind the accurate use of the term "qualification" as used in the 
 Constitution, the court, in State ex rel. v. Gilmore (20 Kansas, 554), said: 
 
 "The Constitution declares (art. 2, sec. 8) that 'EachHouseshaUbe judge of the elections, returns, 
 and qualifications of its own Members.' This is a grant of power, and constitutes each House the ulti- 
 mate tribunal as to the qualifications of its own Members. The two Houses acting conjointly do not 
 decide. Each House acts for itself and by itself, and from its decision there is no appeal, not even to 
 the two Houses. And this power is not exhausted when once it has been exercised and a Membe 
 admitted to his seat. It is a continuous power and nms through the entire term. At any time and at 
 cU times during the term of office each House is empowered to pass upon the present qualifications of 
 its own Members." 
 
 Story says; 
 
 "And as a Member might be so lost to all sense of dignity and duty as to disgrace the House by the 
 grossness of his conduct, or interrupt its deliberations by perpetual violence or clamor, the power to 
 expel for very aggravated misconduct was also indispensable, not as a common, but as an ultimate redress 
 for the grievance. But such a power, so summarj- and at the [same] time so subversive of the rights of the 
 people, it was foreseen, might be exerted for mere purposes of faction or party, to remove a patriot or 
 to aid a corrupt measitre; and it has, therefore, been wisely guarded by the restriction that there shall 
 be a concurrence of two-thirds of the Members to justify an expulsion. * * * 
 
 "In July, 1797, WLUiam Blount was expelled from the Senate for 'a high misdemeanor, entirely 
 inconsistent with his public trust and duty as a Senator.' The offense charged against him was an 
 attempt to seduce an American agent among the Indians from his duty, and to alienate the affections 
 and confidence of the Indians from the public authorities of the United States, and a negotiation for 
 services in behalf of the British Government among the Indians. It was not a statutable offense, nor 
 was it committed in his official character; nor was it committed during the session of Congress, nor at
 
 526 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 476 
 
 the seat of government. Yet, by an almost unanimous vote he was expelled from that body; and he 
 was afterwards impeached (as has been already stated) for this, among other charges. It seems, there- 
 fore, to be settled by the Senate, upon full deliberation, that expulsion may be for any misdemeanor 
 which, though not punishable by any statute, is inconsistent with the trust and duty of a Senator." (Story 
 on the Constitution, vol. 1, p. C07.) 
 Paschal states: 
 
 " It seems to be settled that a Member may be expelled for any misdemeanor which, though not 
 punishable by any statute, is inconsistent with the trust and duty of a Member. (Blount's Case, 1 Story 
 Const., sec. 838; Smith's Case, 1 Hall's L. J., 459; Brook's Case, for assaulting Senator Sumner in the 
 Senate Chamber, for words spoken in debate.) It extends to all cases where the offense is such, as in 
 the judgment of the House, unfits him for parliamentary duties. (Paschal's Annotated Constitution, 
 p. 87, par. 49.) 
 
 "It has not yet been precisely settled what must be the disorderly behavior to incur punishment, 
 nor what kind of punishment is to be inflicted; but it can not be doubted that misbehavior out of the 
 walls of the House or within them, when it is not in session, would fall within the meaning of the 
 Constitution. Expulsion may, however, be founded on criminal conduct committed in any place, 
 and either before or after conviction in a court of law." (Rawle on the Constitution, 2d ed., 47.) 
 
 Cooley is specific: 
 
 ' ' Each House has also power to punish Members for disorderly behavior, and other contempts of 
 its authority, as well as to expel a Member for any cause which seems to the body to render it unfit that 
 he continue to occupy one of its seats. This power is generally enumerated in the Constitution among 
 those which the two Houses may exercise, but it need not be specified in that instrument, since it would 
 exist whether expressly conferred or not. It is 'a necessary and incidental power to enable the House 
 to perform its high functions, and it is necessary to the safety of the state. It is a power of protection. 
 A Member may be physically, mentally, or morally wholly unfit: he may be afflicted with a contagious 
 disease, or insane, or noisy, violent, and disorderly, or in the habit of using profane, obscene, and abusive 
 language.' And, 'independently of parliamentaiy customs and usages, our legislative houses may 
 have the power to protect themselves by the punishment and expulsion of a Member,' and the courts 
 can not inquire into the justice of the decision, or even so much as examine the proceedings to see 
 whether or not the proper opportunity for defense was furnished. (Cooley's Constitutional Limita- 
 tions, pp. 159, IGO.) 
 
 " Since there has been repeated occasion to take steps against Members of each House under each of 
 these two clauses, and since the majority has never taken this standpoint, it may now be regarded as 
 finally settled that that interpretation is correct which is the broader and at the same time according 
 to ordinary speech, unquestionably the more natural one. Both Houses of Congress must have been 
 granted every power needed to guard themselves and their Members against any impropriety on the 
 part of a Member, and to preserve their dignity and reputation among the people. It is wholly for 
 them to say what conduct they are to regard as dishonorable enough to require expulsion. An appeal 
 from their decision lies only to the court of public opinion, a court which brings in its verdict at the 
 elections. (Von Hoist's Constitutional Law of the United States, 102.) 
 
 " The power of expulsion is unlimited, and the judgment of a two-thirds majority is final. (Pomeroy 
 on Constitutional Law, p. 139, 1895.) 
 
 " It seems necessary also to remark that a Member may be expelled, or discharged from sitting, as 
 such, which is the same thing in milder terms, for many causes, for which the election could not be 
 declared void. (Cushing, Law and Practice Legislative Assemblies, p. 33, sec. 84.) 
 
 "The power to expel a Member is naturally and even necessarily incidental to all aggregate and 
 especially all legislative bodies; which, without such power, could not exist honorably, and fulfill the 
 object of their creation. In England this power is sanctioned by continued usage, which, in part, 
 constitutes the law of Parliament. (Ibid., p. 251, sec. 625.) 
 
 "Blount was expelled from the Senate for an offense inconsistent with public duty, but it was not 
 for a statutory offense, nor was it in his official character, nor during the session of Congress, nor at the 
 seat of government; the vote of expulsion was 25 to 1. 
 
 ' ' The motion to expel a Member may be for disorderly behavior, or disobedience to the rules of the 
 House in such aggravated form as to show his unfitness longer to remain in the House, and the cases above 
 cited, as well as the reason of the provision, would justify the expulsion of a Member from the House
 
 § 477 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 527 
 
 where his treasonable and criminal misconduct would show his unfitness for the public trust and duty of 
 a Member of either House. But expulsion, which is an extreme punishment, denying to his constitu- 
 ency the right to be represented by him, can only be inflicted by the concurrence of two-thirds of the 
 House, and not by a bare majority only. (Citing Story on the Constitution, sec. 837; Tucker on the 
 Constitution, p. 429.) 
 
 "It has since been held by the House of Representatives that a Member duly elected could not be 
 disqualified for a cause not named in the Constitution, such as immorality, and that the remedy in such 
 a case, if any, was expulsion. The distinction between the right to refuse admission and the right of 
 expulsion upon the same ground is important, since the former can be done by a majority of a quorum, 
 whereas expulsion requires the vote of two-thirds. The question can not be said to have been authori- 
 tatively decided. (Foster on the Constitution, p. 367.) 
 
 Mr. Foster's attention does not appear to have been directed to the case of Hiss r. Bartlett, as it is 
 in point on his doubt if the doubt relates to the power of expulsion; he does not refer to it. 
 
 It is proper to observe that the determinations of the court and the opinions of eminent legal authors, 
 unexcelled m reputation and learning, are entitled upon these propositions to great weight, as they are 
 in everj- instance the result of careful, dispassionate, and disinterested research and sound reasoning, 
 unaffected by considerations that must necessarily have been involved in legislative precedents. The 
 two-thirds limitation upon the right to expel not only demonstrates the wisdom of the fathers, but 
 illustrates the broad distinction Ijetween exclusion and expulsion. 
 
 A small partisan majority might render the desire to arbitrarily exclude, by a majority vote, in 
 order to more securely intrench itself in power, irresistible. Hence its exercise is controlled by legal 
 rules. In case of expulsion, when the requisite two-thirds can be had, the motive for the exercise of 
 arbitrary power no longer exists, as a two-thirds partisan majority is sufficient for every purpose. Hence 
 expulsion has been wisely left in the discretion of the House, and the safety of the Members does not 
 need the protection of legal rules. 
 
 It seems to us settled, upon reason and authority, that the power of the House to expel is unlimited, 
 and that the legal propositions involved may be thus fairly summarized: The power of exclusion is a 
 matter of law, to be exercised by a majority vote, in accordance with legal principles, and exists only 
 where a Member-elect lacks some of the qualifications required by the Constitution. The power of 
 expulsion is made by the Constitution purely a matter of discretion, to be exercised by a two-thirds vote, 
 fairly, intelligently, conscientiously, with a due regard to propriety and the honor and integrity of the 
 House, and the rights of the individual Member. For the abuse of this discretion we are responsible 
 only to our constituents, our consciences, and our God. 
 
 We believe that Mr. Roberts has the legal, constitutional right to be sworn in as a Member, but the 
 facts are such that we further believe the House, in the exercise of its discretion, is not only justified, 
 but required by everj- proper consideration involved, to expel him promptly after he becomes a Member. 
 
 In the coiu-se of the debate, on January 24, 1900, Mr. John F. Lacey raised 
 and discussed the proposition that the House might expel a Member before he 
 was sworn in.' 
 
 477. The case of Brigham H. Roberts, continued. 
 
 In the case of Brigham H. Roberts, the House assumed its right to 
 impose a qualification not specified by the Constitution; and excluded 
 him. 
 
 2. As to the qualifications of a Member under the Constitution. 
 
 The majoritA" of the committee held that the clause of the Constitution 
 specifying the qualifications of a Member did not preclude the imposition of other 
 disqualifications by the Congress or by either House, arguing thus: 
 
 This question meets us at the threshold: Does the constitutional provision, ''No person shall be 
 a Representative who shall not have attained to the age of twenty-five years, and been seven years a 
 citizen of the United States, and who shall not, when elected, be an inhabitant of the State in which 
 he shall be chosen," preclude the imposition of any disqualification by Congress or by either House? 
 
 1 Record, p. 1135.
 
 528 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 477 
 
 Must it be said that the constitutional provision, phrased as it is, really means that everj' person 
 who is twenty-five years of age, and who has been for seven years a citizen of the United States, and 
 was, when elected, an inhabitant of that State in which he was chosen, is eligible to be a Member of 
 the House of Representatives and must be admitted thereto, even though he be insane, or disl<jyal, or 
 a leper, or a criminal? 
 
 Is it conceivable that the Constitution meant that crime could not disqualify? The whole .spirit 
 of government revolts against any such conception. 
 
 Not now discussing the question as to whether or not that constitutional provision is exclusive, 
 so far as ordinary qualifications are concerned, is it to be said that there is in it no implied power of 
 disqualification for reasons which appeal to the common judgment of mankind, and which are vital 
 and essential to the very constitution and integrity of the legislative body as such? 
 
 We are compelled to answer that that provision, in the sense to which we have just adverted, is 
 not exclusive, and that reasonable disqualifications may attach to certain individuals, which may, for 
 the sake of argument, be assumed to amount in practice to added qualifications. 
 
 A marked distinction is to be made between arbitrary- disqualifications and those which arise out 
 of the voluntary act of the individual who places himself, by the commission of an offense against 
 the law or civilization, within the prohibited class. We believe, whatever general statements may 
 have been made by public men, that no commentator on the Constitution, no court, or either House of 
 Congress has over questioned the propriety of that distinction, but that the contrary doctrine has 
 been universally hel<] wherever the question was clearly raised. 
 
 In our opinion it is demonstrable that no such exclusive meaning can be given to the provision 
 above quoted as is contended for on the other side of this proposition, and that the sound rale is declared 
 by Burgess in his work on Political Science and Constitutional Law, when on page 02, he says: 
 
 "I think it certain that either House [of Congress] might reject an insane person * * * or 
 might exclude a grossly immoral person." 
 
 We desire at the very threshold of this discussion to lay down these general propositions, never 
 to be forgotten and always to be kept clearly in mind: 
 
 First. That the House has never denied that it had the right to refuse to permit a Member-elect 
 to be sworn in, although he had all of the three constitutional qualifications. 
 
 Second. That it has in many instances affirmatively declared that it had the right to thus refuse. 
 
 Third. That the right to so refuse is supported on principle and by the overwhelming weight of 
 authority of constitutional writers and judicial opinions on analogous constitutional questions; and 
 
 After reviewing the status of Roberts the majority continue: 
 
 We assert that it is our duty, as it is our right, to exclude him; to prevent his taking the oath and 
 participating in the councils of the nation. 
 
 Three methods present themselves by which to test the soundness of this view: 
 First. On principle, and this involves — 
 
 (1) The nature of the legislative assembly and the power necessarily arising therefrom; 
 
 (2) The express language of the constitutional provision; 
 
 (3) The reasons for that language; 
 
 (4) Its context and its relation to other parts of the instrument; 
 
 (5) The obvious construction of other portions of the same instrument necessarily subject to the 
 same rule of construction. 
 
 Second. The text-books and the judicial authorities. 
 
 Third. Congressional precedents. These are of two classes — 
 
 (1) Action respecting the rights of individual Members; 
 
 (2) Acts of Congress and general resolutions of either House. 
 
 First. — On principle. 
 
 As to the first proposition, what is the argument on principle? We think it will be undoubted that 
 every legislative body has unlimited control over its own methods of organization and the qualifications 
 or disqualifications of its members, except as specifically limited by the organic law. We do not think 
 that this proposition needs amplifying; it is axiomatic. It is apparent that every deliberative and 
 legislative body must have supreme control over its owti membership, except in so far as it may be
 
 § 477 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 529 
 
 specifically limited by a higher law; there is a distinction to be drawn between the legislative power of a 
 legislative body and its organizing power, or those things which relate to its membership and its control 
 over the methods of performing its allotted work. That is to be distinguished from the legislative power 
 to be expressed in its final results. 
 
 When our Constitution was framed there was practically no limit to the right and power, in these 
 respects, of the English Pailiament. Such power is necessary to the preservation of the body itself and 
 to the dignity of its character. In England it was at one time admissible to permit the admission into the 
 House of Co mm ons of minors, of aliens, and of persons not inhabitants of the political subdivision in 
 which they were elected. To this day it is well known that an inhabitant of London may be elected by 
 a Scotch constituency, and a member has been elected by more than one constituency to the same 
 Parliament. 
 
 The framers of the Constitution, familiar with these facts, proposed to prevent their happening in 
 this coimtry. They knew also that a similar latitude of choice had been exercised in the original colonies 
 and in the States of the Federation, and it was proposed to put a stop to it so far as Congress was concerned . 
 A verj' liuninous argument was made on this subject by John Randolph in the House of Representatives 
 In 1807. 
 
 We quote as follows from his remarks: 
 
 ' ' If the Constitution had meant (as was contended) to have settled the qualifications of Members, its 
 words would have naturally run thus: 'Every person who has attained the age of twenty-five years and 
 been seven years a citizen of the United States, and who shall, when elected, be an inhabitant of the 
 State from which he shall be chosen, shall be eligible to a seat in the House of Representatives.' But so 
 far from fixing the qualifications of Members of that House, the Constitution merely enumerated a few 
 disqualifications within which the States were left to act." 
 
 "It is said to the States, ' You have been in the habit of electing young men barely of age. You 
 shall send us none but such as are five and twenty. Some of you have elected persons just naturalized. 
 You shall not elect any to this House who have not been some seven years citizens of the United 
 States. Sometimes mere sojourners and transient persons have been. clothed with legislative authority. 
 You shall elect none whom your laws do not consider as inhabitants.' " 
 
 In pursuance of the idea in the mind of the framers of the Constitution, we have the peculiar words 
 "no person shall be a Representative who shall not have attained, etc." How happy indeed are these 
 words Lf we give them precisely the force and meaning for which we contend. How unhappy and how 
 misleading, how impossible, in fact, to the masters of the English language who wrote them, if they were 
 intended to exclude all other possible requirements or disqualifications. We might admit such con- 
 struction if suitable language was difiicult to find or frame; but note how easily such a purpose coidd 
 have been served in fewer words and with unmistakable meaning. Thus: "Any person," or "a person," 
 or "every person, may be a Representative who shall have attained the age of twenty-five years," etc. 
 
 The provision seems to be worded designedly in the negative so as to prevent the suspicion that 
 it was intended to be exclusive, and so as to prevent the application of the rule, "the expression of one 
 thing is the exclusion of another." The immediately preceding clause is affirmative, and says: "The 
 electors in each State shall have the qualifications," etc. With some show of propriety it can be claimed 
 that this provision is exclusive. It at least does not have the negative form to condemn such construction 
 
 Story says (Constitution, sec. 448): 
 
 "The truth is, that in order to ascertain how far an aflBrmative or negative proposition excludes or 
 implies others, we must look to the nature of the provision, the subject-matter, the objects, and the 
 scope of the instrument. These, and these only, can properly determine the rule of construction. There 
 can be no doubt that an affirmative grant of powers in many cases will imply an exclusion of all others." 
 
 It is a notable fact that in the first draft of this constitutional provision which provides for quali- 
 fications of Representatives in Congress the language was affirmative and positive and that when it 
 was finally presented for adoption it appeared in the form in which we now find it. 
 
 The slight contemporaneous discussion in the constitutional convention was upon the provision 
 in the affirmative form, ^"hy was it changed in the negative? Surely not for the sake of euphony, 
 and certainly not to make it more explicitly exclusive. 
 
 In the report of the committee of detail, submitting the first draft of the Constitution, this section 
 read in the affirmative and as follows: 
 
 .5994 — VOL 1—07 34
 
 530 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 477 
 
 "Every Member of the House of Representatives shall be of the age of 25 years at least; shall 
 have been a citizen of the United States for at least three years before his election, and shall be at the 
 time of his election a resident of the State in which he shall be chosen." 
 
 In the discussion Mr. Dickinson opposed the section altogether, expressly because it would be held 
 exclusive, saying he "was against any recitals of qualifications in the Constitution. It was impossible 
 to make a complete one, and a partial one would, by implication, tie up the hands of the legislature 
 from supplying omissions." 
 
 Mr. Wilson took the same view, saying: 
 
 "Besides, a partial enumeration of cases will disable the legislature from disqualifying odious and 
 dangerous characters." 
 
 The next day after this discussion, and when the clause respecting age, etc., had, in its general 
 sense, been informally approved, a proposed section respecting a property qualification was discussed. 
 Mr. Wilson said (Madison Papers, vol. 5, p. 404) that he thought "it would be best, on the whole, to 
 let the section go out; this particular power would constructively exclude every other power of regulating 
 qualifications." What did Mr. Wilson mean if the result of the discussion in which he participated on 
 the preceding day was to "constructively exclude every other power of regulating qualifications?" 
 
 In view of the objections urged by Dickinson and Wilson and their opinions as to the construction 
 that would result and the consequences thereof, the conclusion seems reasonable, if not absolutely 
 irresistible, that the change from the affirmative to the negative form was intentionally made and with 
 the very purpose of obviating such objections, and hence that in being negatively stated it was con- 
 sidered by the convention that the particular qualifications mentioned would not be exclusive and 
 would not render impossible the "disqualifying odious and dangerous characters " and would not prevent 
 "supplying omissions." 
 
 This section was finally reported and adopted in the negative form in which it now appears. The 
 report of the committee seems to have been elaborately discussed. 
 
 \^Tiere do we find ourselves in such a case as this? Suppose that Brigham H. Roberts, instead of 
 being charged with polygamy, was charged with treason, not constructive treason, but actual treason, 
 and suppose that a witness appeared before the committee — a credible witness, whose testimony was 
 undisputed — who testified that he had seen Brigham H. Roberts wage war against the United States in 
 the Spanish war, giving aid and comfort to Spain, not constructively, but actively; and suppose that 
 Roberts appeared himself before the committee and said, "All that this man says is true; I did wage war 
 against the United States; I did give aid and comfort to its enemies in time of war against a foreign foe, 
 and I glory in it." Now, in that state of facts the law could not lay its hand upon him for the crime 
 treason, for the Constitution provides that no person shall be convicted of treason except upon the 
 testimony of two witnesses to the same over fact or by confession in open court. So that under the 
 state of facts thus presented he could not be convicted of treason. 
 
 Suppose he was here with a certificate of election from a great State and demanded admission. 
 Upon the theory of the other side we must admit him. The minority insist that in such a case he must 
 be sworn in. It will not do to say that practically no wrong would be done on the ground or on the 
 theory that he might be immediately thereafter expelled, for he would have a right to be heard in his 
 own defense, he would have a right to be heard as to whether the House had a right upon those facts 
 to expel, and it might take much time. In any event he would be there fully armed with all of the 
 powers and privileges of a Member of the American House of Representatives. We think that the civi- 
 lized world would declare that it made itself ridiculous if it confessed its want of power to keep out from 
 the councils of the nation a man who was a confessed traitor. 
 
 Another illustration. Suppose that on the 1st day of January, 1899, two months after his election 
 and two montlis before his term as a Representative should commence, he had been convicted of the 
 crime of bigamy or of adultery, either one of which is a felony under the statutes of Utah, for an offense, 
 we wiU presume, committed prior to his election, so that it can not be charged that after his election he 
 voluntarily pxit himself in that position, and he was tried, convicted, and sentenced to the penitentiary 
 for a term of two years; and it so occurs that his term of imprisonment should expire on the 3d day of 
 March, 1901, the day before his term as Representative in Congress expires. Suppose he presented 
 himself on the 3d day of March, 1901, no action having been previously taken in his case, would the House 
 have to admit him, or would not the proper proceeding be, while he was still in the penitentiary, for such
 
 § 477 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 531 
 
 an olfense, for the House to declare his seat vacant; that he ought not to have or retain a seat in the 
 American House of Representatives? 
 
 It may be said that that imprisonment would amount to a constructive resignation. There is no 
 precedent for that. The Yell case is entirely different. An election was held for a successor to Yell, 
 and the seat was recognized to be vacant upon the express ground that he had taken another office incom- 
 patible with his position as a member of Congress, and that since he was occupj-ing and exercising the 
 functions of that office, of course that vacated ipso facto his position as Representative in Congress. 
 
 It is well settled that whUe the mere appointment or election to an office the duties of which are 
 incompatible with those of one already held will not vacate such an office, the acceptance of the incom- 
 patible office ipso facto vacates the first office held. This doctrine is laid down inWillcox, in Angel and 
 Ames on Corporation, section 434; in \Miitney against Canique, 2 Hill, 93; Cushing's Law on Practice 
 of Legislative Assemblies, section 479, and many other authorities. 
 
 Let us assume, further, that that sentence of imprisonment would not expire until after the 4th of 
 March, 1901, so that during all of that period Roberts would be incapacitated from being present to 
 demand the right to be sworn in; what is she remedy? We think it clear that the seat is not vacated 
 by the mere fact that he does not present himself; by the mere fact that he remains absent. A 
 man might be sick, and he might remain away the entire session, hoping that he might become well 
 enough to attend, and Roberts might indulge the hope that he would be pardoned, and thus get in. Is 
 it to be said that the House on that state of facts can not declare the seat vacant and permit the governor 
 to issue a new writ and call another election? If it can not, then we are face to face with the proposition 
 that the people of the State must remain um-epresented during the entire term of Congress. 
 
 Suppose another case. That in the midst of the organization, and before being sworn in, a Member- 
 elect should so indecently and outrageously conduct himself before the eyes of the House and the 
 assembled multitude as to demand and justify expulsion if he had so conducted himself after he had 
 been sworn in. What would the House do? In the midst of his outrageous misconduct must the House, 
 with tender persuasiveness, beg him to honor it by being sworn in so that he may be turned out, or 
 would it refuse to swear him in and proceed to declare his seat vacant? Could the strictest constructionist 
 of the Constitution deny that the Constitution was substantially complied with if he was excluded by 
 a two-thirds vote, even if he did not assent to our view in all respects. 
 
 Suppose that the claimant to this seat, while enjoying through the courtesy of the House the 
 privilege of the floor, should declare his contempt for this body and for the Government; that he 
 respected none of its decrees or the laws of the land as having any binding force upon him; that if he 
 became a Member of the House he should become so merely for the purpose of obstructing its business 
 and to tear down the Government. WTiat would the House do? Swear him in that it might have the 
 ineffable privilege of turning him out? Or would it declare him unfit to have a seat in that body and 
 declare his seat vacant? 
 
 As Judge Shaw says in Hiss v. Bartlett (3 Gray, 473), "it is necessary to put extreme cases to test 
 a principle." 
 
 So much for illustrations upon that question. Look, now, at the last paragraph of Article VI of 
 the Constitution: 
 
 "The Senators and Representatives before mentioned, and the members of the several State 
 legislatures, and all executive and judicial officers, both of the United States and of the several States, 
 shall be bound by oath or affirmation to support this Constitution." 
 
 Here is an affirmative declaration that a certain oath shall be administered to certain officials. If 
 the theory of exclusion is applied to the qualification clause as to Representatives, it must be applied 
 to this clause, and therefore Congress has no power to demand any other oath, or superadd to this oath 
 any other provisions. 
 
 And yet the very oath we took as Members of this House has additional provisions. Congress 
 passed also the test oath act in 1862, making \'ital additions to the constitutional oath, and, indeed, 
 adding a new ground of disqualification for Members of Congress. This act was passed by a large majority 
 and compelled Members of Congress to submit to that oath for many years. Chief Justice Marshall, the 
 great expounder of the Constitution, in the case of McCuUoch v. Maryland, declared that "He would be 
 charged with insanity who should contend that the legislature might not superadd to the oath directed 
 by the Constitution such other oath or oaths as its wisdom might suggest," and the whole opinion in 
 that case is addressed in principle to the very doctrine that is here advocated.
 
 532 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 477 
 
 If Congress could add to the constitutional oath, the same theory of construction must permit it 
 to at least add reasonable qualifications to the requirements for members of the legislative body, at 
 least to the extent of declaring disqualifications which in their nature ought to bar a man from entrance 
 into a great legislative body. 
 
 The same clause to whicli we have just referred has this provision: 
 
 " But no religious test shall ever be required as a qualification to any office or public trust under the 
 United States." 
 
 If the Constitution had laid down all the qualifications wliicli Congress or any other power had the 
 right to impose it was unnecessary to go on and declare that no religious test should be required. 
 That great instrument is inconsistent in its parts and contradictory of itself if it be true that it meant 
 that no disqualifications should be provided except those named. Nor was it necessary, if the proviso 
 means an oath merely, that such exception should be made, for the preceding words of the paragraph 
 set out the required oatli. 
 
 The effort to make tlie negative declaration of minimum qualifications exclusive of all others, 
 whatever the necessities of the House may bo, falls to the ground if we admit that the paragraph respect- 
 ing oaths is in the same instrument as that which defines the qualifications of Members of Congress. 
 
 Second. — The text-books. 
 
 Let us now proceed with what we have called the text-book and judicial authority. 
 
 There is a statement in Story's work on the Constitution to the effect that the clause in the Con- 
 stitution describing the qualifications for Representatives in Congress would seem to imply that other 
 qualifications could not be added. 
 
 Now, whether or not that be sound, these two obsei'vations are to be made upon it: 
 
 First. That it is dismissed in a very few words. Justice Story himself disclaims explicitly in 
 his work that he gives his own opinion as to what the Constitution means, but asserts that he under- 
 takes merely to give the statements of others. 
 
 Second. This statement of Judge Story does not at all interfere with the proposition we have laid 
 down: That the power of the House to exclude from its membership a person who is, for instance, 
 disloyal, a criminal, insane, or infected with a contagious disease is not superadding any qualification, 
 within the meaning of Stoiy, such as a property qualification or an educational qualification. 
 
 We find, however, that Story's expression, if it means all that is claimed for it by tlie minority, 
 does not accord with the opinion of other commentators, with the courts, or with the Congressional 
 precedents. We have already quoted and will not now repeat what is said by Prof. John W. Burgess, 
 professor of history, political science, and international law, and dean of the university of political 
 science in Columbia College, New York. This ambitious work, published in 189C, must be considered 
 an autiiority on the subject of constitutional law. 
 
 In Pomeroy's Constitutional Law, 3d edition, page 138, is the following: 
 
 "The power given to the Senate and to the House of Representatives, each to pass upon the valid- 
 ity of the elections of its own Members, and upon their personal qualifications, seems to be unbounded. 
 But I am very strongly of the opinion that the two Houses together, as one House, can not pass any 
 statute containing a general rule by which the qualifications of Members as described in the Consti- 
 tution are either added to or lessened. Such a statute would not seem to be a judgment of each House 
 upon the qualifications of its own Members, but a judgment upon the qualifications of the Members of 
 the other branch. The power is sufficiently broad as it stands. Indeed, there is absolutely no restraint 
 upon its exercise except the responsibility of the Representatives to their constituents. Under it the 
 House inquires into the validity of the elections, going behind the certificates of the election officers, 
 examining the witnesses, and deciding whether the sitting Member or the contestant received a majority 
 of legal votes. The House has also applied the test of personal loyalty to those claiming to be duly 
 elected Representatives, deeming this one of the qualifications of which it might judge." 
 
 Pomeroy is discussing the power of the House, not stating what somebody may have said. 
 
 So, also, in the lectures of Justice Miller on the Constitution of the United States, page 194, is the 
 following: 
 
 "Very few controversies, if any, have ever arisen in either body (that is, of Congress) concerning 
 the qualifications of its Members. It was at one time a question somewhat mooted whether the States
 
 § 477 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 533 
 
 could add to the qualifications which the Constitution has prescribed for the Members of the Senate or 
 the House of Representatives, hut it is now conceded that this must be decided by the Constitution 
 alone, because, though it might be conceivable that Congress might make some conditions or limitations 
 concerning the eligibility of its Members, it has not been done, and the constitutional qualifications 
 alone regulate that subject." 
 
 It a profound constitutional authority like Justice Miller had believed that the provision we are 
 considering was absolutely exclusive and prevented the House or the Senate from exerting any such 
 power it seems to us that he would have so declared. 
 Throop on Public Offices, section 73, says: 
 
 "The general rule is that the legislature has full power to prescribe qualifications for holding 
 office in addition to those prescribed by the Constitution, if any, provided that they are reasonable 
 and not opposed to the constitutional provisions or to the spirit of the Constitution." 
 
 ^\lio shall say that the exclusion of Roberts on the ground of polygamy is "opposed to the spirit 
 of the Constitution? " 
 
 Cushing (Law and Practice of Legislative Assemblies, p. 195, sec. 477) says: 
 
 "To the disqualifications of this kind may be added those which may result from the commission 
 of some crime which would render the Member ineligible." 
 
 The courts. 
 
 What have the courts said on similar propositions? We first have the case of Barker v. The People 
 (3d Cowen) [New York]. In that case it was held that every person not specifically disqualified by the 
 Constitution was eligible to election or appointment to ofiice. In so far as that particular statement 
 goes, it is a denial of the broad right to superadd to the constitutional provision as to qualifications. 
 But that statement, as applied to this case, loses all of its applicability, for two reasons: 
 
 (1) Because it was not the question that it had to decide. 
 
 (2) Because the judge distinctly and positively declares — and that was the point involved in 
 the case — that notwithstanding that want of power in the legislature to add to the Constitution quali- 
 fications it did have the right to disqualify for crime. He proceeds to say that it might disqualify for 
 crime upon conviction thereof. We apprehend that that is unimportant here, for if the House of 
 Representatives has a right to disqualify for crime it has the power and the right to determine for 
 itself whether the crime was committed, and not to depend upon a judicial conviction. The necessity 
 for a judicial conviction is the more apparent where the person who seeks to take office undertakes to 
 assume an executive office to which he has been elected or appointed, for there may not be any other 
 than the ordinarily constituted court in which to try the question of his guilt of the offense that created 
 his ineligibility. 
 
 But it is not the settled doctrine of the law that disqualification for crime must be first adjudicated 
 in the courts. The authorities are, the most of them, against that proposition, and for the sake of 
 convenience we shall refer to them here. 
 
 We quote from Royall v. Thomas (28 Gratton (Va.), 130). The syllabus is as follows: 
 
 "Under the constitution and statute of Virginia, a party who has aided and assisted in a duel 
 fought with deadly weapons may be removed from office by proceeding of quo warranto, or if that writ 
 be not in use, by information in the nature of a quo warranto, though he has not been convicted of 
 the offense in any criminal prosecution against him." 
 
 The court in this case say that the principal authority relied on in support of the contrary position 
 to that stated in the syllabus is the Kentucky case of Commonwealth v. Jones. 
 
 "It was held in that case that the clause of the Kentucky constitution imposing the disqualifi- 
 cation for office of the offense of dueling is not self-executing, except so far as it prevents those who can 
 not or will not take the requisite oath from entering upon office. It was there held that a citizen willing 
 to take such oath could not be proceeded against for usurpation of such office until he had been first 
 indicted, tried, and convicted of the disqualifying offense. 
 
 "It was found, however' said the Virginia court in the Gratton case], on examination, that much 
 of the reasoning of the court in the Jones case turns upon the peculiar phraseology of the Kentucky 
 constitution, in which it is declared that the offender shall be deprived of the right to hold any office, 
 post, or trust under the authority of the State.
 
 534 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 477 
 
 "The court agreed that if, instead of the words 'shall he deprived' the phrase 'shall not be 
 eligible' had been used, some of the difficulties attending the argument to show that the provision is 
 self-executing would have been obviated. 
 
 "In the case of Cochran v. Jones, involving the same question, the board for the determination 
 of contested elections arrived at a very different conclusion upon the same clause of the Kentucky 
 constitution. It will thus be seen that even in Kentucky there is such conflict of opinion in respect 
 to the true interpretation of the constitutional provisions in question as deprives the decision relied on 
 by the defendants of the weight of being considered even persuasive authority. 
 
 "The provision in the Virginia constitution is as follows: 'No person who, while a citizen of this 
 State, has, since the adoption of this constitution, fought a duel with a deadly weapon, sent or accepted 
 a challenge to fight a duel with a deadly weapon, shall l)o allowed to vote or hold any office of honor, 
 profit, or trust under this constitution. '" 
 
 The court goes on to explicitly hold that previous conviction was unnecessary, arguing it with 
 great force. 
 
 The same doctrine is held in Mason v. The State (58 Ohio State), where Mason, who had been 
 elected probate judge of a county in Ohio, had expended more money to bring about his election than 
 the corrupt practices act allowed, and as this act disqualified such person from holding the position to 
 which he was elected, the supreme court held that he could be thus disqualified and kept out of office 
 without conviction. 
 
 To the same effect is the case of Commonwealth v. Walter (83 Pennsylvania State, 105). 
 
 Proceeding with the enumeration of authorities as to the exclusive effect of the constitutional 
 provision defining or declaring qualifications for office, the next case to which we call attention is Rogers 
 V. Buffalo (123 New York). We quote from page 184: 
 
 "The case of Barker v. The People (3 Cowan, 686) has been cited by counsel. That case holds 
 the act to suppress dueling, which provided as a punishment for sending a challenge that the person so 
 sending should, on conviction, be disqualified from holding any puljlic office, was constitutional. The 
 chancellor, in the course of his opinion, said he thought it entirely clear that the legislature could not 
 establish arbitrary exclusions from office, or any general regulation requiring qualifications which the 
 constitution had not required. What he meant by such expression is rendered clear by the example 
 he gives. Legislation would be an infringment upon the constitution, he thought, wliich should enact 
 that all physicians, or all persons of a particular religious sect, should be ineligible to hold office, or that 
 all persons not possessing a certain amount of property should be excluded, or that a member of assembly 
 must be a freeholder, or any such regulation. 
 
 "But, in our judgment, legislation which creates a board of commissioners consisting of two or 
 more persons, and which provides that not more than a certain proportion of the whole number of com- 
 missioners shall be taken from one party, does not amount to an arbitrary exclusion from office, nor to a 
 general regulation requiring qualifications not mentioned in the constitution. The 'qualifications' 
 which were in the mind of the learned chancellor were obviously those which were, as he said, arbitrary, 
 such as to exclude certain persons from eligibility under any circumstances. Thus, a regulation exclud- 
 ing all physicians would he arbitrary. But would a regulation which created a board of health and 
 provided that not more than one physician from any particular school, or none but a physician, should 
 be appointed thereon be arbitrary or unconstitutional as an illegal exclusion from office? I tliink not. 
 
 "The purpose of the statiite must be looked at and the practical results flowing from its enforce- 
 ment. If it be obvious that its purpose is not to arbitrarily exclude any citizen of the State, but to 
 provide that there shall be more than one party or interest represented, and if its provisions are apt for 
 such purposes, it would be difficult to say what constitutional provision is violated or wherein its spirit 
 is set at naught." 
 
 And, again, on page 188 — 
 
 " It is said that the legislature had no right to enact that a person who shall be appointed to a public 
 oflice shall have the qualifications necessary to enable him to discharge the duties of such office, nor to 
 provide that the fact that he does possess such qualifications shall be ascertained by a fair, open, and 
 proper examination. Nothing but the bare oath mentioned in the constitution can be asked of any 
 applicant for an appointive office is the claim of the appellant. We do not think that the provision 
 above cited was ever intended to have any such broad construction. Looking at it as a matter of common 
 sense we are quite sure that the framers of our organic law never intended to impose a constitutional
 
 § 477 POLYGAMY AXD OTHER CRIMES AS DISQUALIFICATIONS. 535 
 
 barrier to the right of the people through their legislature to enact laws which snould aave for their sole 
 object the possession of fit and proper qualifications for the performance of the duties of a public office on 
 the part of him who desired to be appointed to such ofiice. So long as the means to accomplish such end 
 are appropriate therefor they must be within the legislative power. 
 
 "The idea can not be entertained for one moment that any intelligent people would ever consent 
 to so bind themselves with constitutional restrictions on the power of their own representatives as to 
 prevent the adoption of any means by which to secure, if possible, honest and intelligent sennce in 
 oflBce. Xo law involving any test other than fitness and ability to discharge the duties of the office could 
 be legally enacted under cover of a purpose to ascertain or prescribe such fitness. Statutes looking only 
 to the purpose of ascertaining whether candidates for an appointive office are possessed of those qualifi- 
 cations which are necessarj- for a fit and intelligent discharge of the duties pertaining to such office are 
 not dangerous in their nature, sind in their execution they are not liable to abuse in any manner involving 
 the liberties of the people." 
 
 And, again, on page 190 — 
 
 ■' In this case we simply hold that the imposing of a test by means of which to secure the qualifica- 
 tions of a candidate for an appointive office, of a nature to enable him to properly and intelligently 
 perform the duties of such office, violates no provision of our constitution." 
 
 This opinion was delivered by Justice Peckham, now a member of the Supreme Court of the United 
 States. 
 
 Another instructive case is that of Ohio ex rel. Attomey-Greneral r. Codington, 29 Ohio State, page 
 102. The opinion is by Judge Mcllvaine. one of the ablest and most careful judges that ever sat in the 
 supreme court of Ohio. He sij-s: 
 
 "The last objection made to the validity of this act is based on section 4 of article 15 of the 
 constitution, which declares: ' No person shall be elected or appointed to any office in this State unless 
 he possesses the qualifications of an elector.' 
 
 '■ The question arises under the fourth section of the act (which the court is construing), which pro- 
 vides: ' Each member and officer of the police force shall be a citizen of the United States, and a resident 
 citizen for three years of the city in which he shall be appointed, and able to read and write the English 
 language.' 
 
 "There is no claim made that the qualifications prescribed in the act, in view of the nature of the 
 duties to be performed, are unreasonable, or even unnecessarj*, to the discharge of the duties. The 
 point made is that disqualifications are imposed by the statute which are not imposed by the constitution. 
 
 "It is apparent that this statute is not in conflict with the terms of this constitutional pro-s-ision. 
 It does not authorize the appointment of a person who is not an elector. The express provision of the 
 constitution is that a person not an elector shall not be elected or appointed to any office in this State. 
 Now, unless the clear implication is that everj- person who has the qualifications of an elector shall be 
 eligible to any office in this State, there is no conflict between the statute and the constitution. I do 
 not believe that such implication arises. There are many offices the duties of which absolutely require 
 the abilitj- of reading and writing the English language. There are many electors who, from habit of 
 life or otherwise, are wholly unfit to discharge the duties of many offices within this State. If the fram- 
 ers of the constitution had intended to take away from the legislature the power to name disqualifica- 
 tions for office other than the one named in the constitution, it would not have been left to the very 
 doubtful implication which is claimed from the provision under consideration. The power under the 
 general grant being ample and certain, a statute should not be declared void because in conffict with an 
 alleged implication, unless such implication be clear and indubitable." 
 
 We find the same doctrine in the case of Darrow r. The People, 8 Colorado, page 417. The sj^llabua 
 relating to this question is as follows: 
 
 "The statute designating the paj-ment of taxes as a necessary qualification of membership in the 
 board of aldermen is not in conflict with section 6, article 7, of the constitution." 
 
 The pro\Tsion of that section is as foUows: 
 
 "No person except a qualified elector shall be elected or appointed to any civil or military office 
 in the State." 
 
 The court saj-s, on page 420, that it is argued that this provision "by implication inhibits the legis- 
 lature from adding the property qualification under consideration. There is nothing in the constitution 
 which expressly designates the qualifications of councilmen in a city or town, and this section contains
 
 536 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 477 
 
 the only language that can possibly be construed as applicable thereto. But it will be observed that the 
 language used is negative in form — that it simply prohibits the election or appointment to office of one 
 not a qualified elector. There is no conflict between it and the statute. By providing that a supervisor 
 or an alderman shall be a taxpayer the legislature does not declare that he need not be an elector. Nor 
 is the provision at all unreasonable. On the contrary, it is a safeguard of the highest importance to 
 property owners within the corporation. 
 
 "The right to vote and the right to hold office must not be confused. Citizenship, and the requi- 
 site sex, age, and residence constitute the individual a legal voter; but other qualifications are abso- 
 lutely essential to the eflBcient performance of the duties connected with almost every office. And 
 certainly no doubtful implication should be favored for the purpose of denying the right to demand such 
 additional qualifications as the nature of the particular office may reasonably require. We do not believe 
 that the framers of the constitution by this provision intended to say that the right to vote should be 
 the sole and exclusive test of eligibility to all civil offices, except as otherwise provided in the instru- 
 ment itself; that no additional qualifications should ever be demanded, and no other qualifications 
 should be imposed." 
 
 Third. — LegMalive precedents. 
 
 \^'e proceed now to the legislative precedents upon this matter of exclusion, without admitting the 
 person objected to to be sworn in. 
 
 JEBEMUH LABNED. 
 
 One Jeremiah Larned, as long ago as 1785, was elected to the legislature of Massachusetts, but it 
 turned out that he had violated a law that that legislature had passed. And what was it? On election 
 day he headed a riot for the purpose of preventing the collection of taxes. What did the fathers of that 
 day do? They were not men who were regardless of human rights; they held that inasmuch as Larned 
 had violated the law he was unworthy to take a seat upon that floor, and they kept him out. 
 
 The majority further cite and discuss the cases of John M. Niles, Philip F. 
 Thomas, and Benjamin Stark in the Senate, and the Kentucky cases and those of 
 Whittemore and George Q. Cannon in the House. The majority then say: 
 
 Thus we see that the Senate and the House have taken the ground that they had the right to 
 exclude for insanity, for disloyalty, and for crime, including polygamy, and, as we believe, there is no 
 case in either the House or the Senate, where the facts were not disputed, in which either the Senate or 
 House has denied that it had the right to exclude a man, even though he had the three constitutional 
 qualifications. There is a large amount of debate, where opinions are given on both sides of the propo- 
 sition, but as against that is the never- varying action of the two bodies themselves. 
 
 Some importance is given by the minority to the final action of the House of Commons in the 
 Wilkes case. We are asked to infer from some remark attributed to Edmund Burke that he had written 
 "finis" to the chapter on exclusions from parliamentary bodies. 
 
 As to that, we have to say that after diligent search we find no cases where the House of Commons 
 ever held or decided that it had not the right to exclude at the verj' threshold a member whose certifi- 
 cate or credentials were perfect and uncontested, although the ground of exclusion was not a want of 
 legal qualifications, and there are scores of cases since 1780 where it has claimed and exercised that 
 right. We have found several cases where the House of Commons has declared that it possessed (and 
 exercised) the right not only to exclude and suspend, but in a few instances to expel, a member for an 
 offense untrelated to the functions of a member of Parliament, which offense was in a few instances 
 committed before his election to Parliament, but was held to be of a continuing character. 
 
 The Houses of the American Congress have not accepted or followed these last-named precedents, 
 due undoubtedly to the radical differences between organization, jurisdiction, and powers of the English 
 Parliament and the American Congress. The most striking of these differences, as stated by Mr. Cush- 
 ing, are that in this countrj' Members of both branches of Congress are elected for specified terms and that 
 the Members of the House of Representatives arc apportioned among and elected liy their several con- 
 stituencies — so far as possible — upon the principle of equality; whereas in England the House of Lords 
 is composed of members who are not elected at all, but who sit as members during their lives by virtue 
 of hereditarj' or conferred right, as the nobility, or temporal lords, or of their appointment to places of
 
 § 477 POLYGAMY AXD OTHER CRIMES AS DISQUALIFICATIONS. 537 
 
 high dignity in the church, as the archbishops and bishops, or lords spiritual; and the members of the 
 House of CVjmmons, though elected, are not apportioned among the several constituencies and elected 
 upon the principle of equality or representation, but chiefly upon the principle of corporate or municipal 
 right, and for no fixed period of time. 
 
 Another important difference is that the existence and powers of the House of Commons rest largely 
 on custom and tradition, aided, of late years, by statute pro\'L=ions, whereas in the House of Represent- 
 atives (as well as the Senate) these powers are founded in and for a great part regulated, limited, and 
 controlled by a written Constitution and laws. 
 
 It may be said that the House of Commons has uniformly taken the \-iew that under the right to 
 judge of the "qualifications" of its members — their l^al election and return being conceded — it rests 
 wholly within the discretion of that body to estaljlish a new test or requirement of qualification for 
 membership, and that it may be either mental, such as for imbecility or insanity; physical, as for 
 paralysis; or for grave offenses against criminal laws. 
 
 The minorit}^ of the committee, arguing that the three qualifications specified 
 in the Constitution are the only ones which may be imposed, say: 
 
 The Constitution, article 1, section 5, provides that "each House shall be the judge of the elections 
 returns, and qualifications of its own Members." 
 
 As to qualifications of Representatives, it provides: 
 
 " No person shall be a Represntative who shall not have attained to the age of twenty-five years and 
 been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that 
 State in which he shall be chosen. (Constitution, article 1, section 2.)'' 
 
 Is it seriously contended that this House can of its own motion, by its own independent action, 
 create for the purposes of this case a legal qualification or disqualification? This House alone can not make 
 or unmake the law of the land. Before any one of its acts can become law it must must be concurred in 
 by the Senate and approved by the President, or passed by two-thirds of each House over his veto. It 
 is quite clear that the House, by its independent action, can not, if it would, make for this case any 
 disqualifying regulation that would have the force of law. 
 
 The qualifications being negatively stated in the Constitution, it is said that Mr. Roberts is ineligible 
 under the pro\Tsions of the act of March 22, 1882, section 8, known as the Edmunds law, viz: 
 
 "Sec 8. That no polygamist, bigamist, or any perscjn cohabiting with more than one woman, and 
 no woman cohabiting with any of the persons described as aforesiad in this section, in any Territory or 
 other place over which the United States have exclusive jurisdiction, s hall be entitled to vote at any 
 election held in any such Territory or other place, or be eligible for election or appointment to or 
 be entitled to hold any office or place of public trust, honor, or emolument in, under, or for any such 
 Territory or place, or under the United States." 
 
 The existence of the disqualification in this act is predicated not upon a conviction of or as a punish- 
 ment for the offenses of polygamy or unlawful cohabitation, but simply as incident to the existence of 
 those conditions. 
 
 It is a verj' grave question as to whether Congress can, by a law duly enacted, add to the qualifica- 
 tions n^atively stated in the Constitution. There is no decision of the United States Supreme Court 
 directly or indirectly construing this pro\asion. There is no decision of any State court directly in point. 
 In Ohio V. Covington (29 Ohio Stat., 102), relied upon, the court was passing upon the right of the 
 defendants to hold the offices of police commissioner and member of the board of health for the city of 
 Cincinnati. The constitution provided that — 
 
 " No person shall be elected or appointed to any office in this State unless he possesses the qualifica- 
 tions of an elector." 
 
 The court distinctly held that "the defendants, as members of the board of police commissioners 
 * * * are officers for whose election and appointment no provision is made in the Constitution of the 
 State or of the United States," and were therefore such as the legislature had, by the express provisions 
 of the Constitution, authority to create. WTien the legislature created the offices in question, it attached 
 to them the condition that each officer should be "a resident citizen for three years of the city in which 
 he shall be appointed, and able to read and write the English language." 
 
 The offices in question were creatures of the statute, and not of the constitution. It is familiar law 
 that whatever office the legislature creates it can create with such conditions, limitations, qualifications,
 
 538 
 
 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 §477 
 
 and restrictions as it sees fit to impose; and this was all that it was necessary for the court to say in 
 that case in upholding the validity of the statute. It is true that it did go further than that, further 
 than the case required, and held that no implication arose, from the negative language of the constitu- 
 tion, that other qualifications could not be added by the legislature. In so far, however, as the opinion 
 goes beyond the requirements of the case, it certainly is doubtful authority. It should be stated that 
 this case has been fully approved in the recent case of Mason v. State (58 Ohio St., 54). 
 
 The case of Darrow v. People (8 Colo., 420), relied on, is also subject to the same criticism as State 
 V. Covington, as the oflice there considered was that of alderman, the creature of the statute. 
 
 The case of People v. May (3 Mich., 598) is relied upon to support the proposition that statutory 
 additions may be made to the constitutional qualifications. We submit that so far as that case is an 
 authority it is directly in point against the contention. In that case a layman had been elected to an 
 office designated in the constitution as "a prosecuting attorney." The question was whether any person 
 not a lawyer was eligible to the office. It was objected that to hold that eligibility was confined to the 
 legal profession would be adding a qualification in violation of the constitution. 
 
 The court held that they must give to the words "a prosecuting attorney" such a construction as 
 would be consistent with the sense in which they were used, and that the obvious intention of the con- 
 stitution was that the office should be held by an attorney at law. Certainly not a very violent inference. 
 This did not add a qualification; merely held that one already existed. But the court did not stop there, 
 or leave their position as to the right to add qualifications open to doubt, as they emphatically said: 
 
 " We concede to the fullest extent that it is not in the power of the judiciary or even the legislature, 
 to establish arbitrary exclusions from office, or annex qualifications thereto, when the Constitution lias 
 not established such exclusions, nor annexed such qualifications. But it is begging the question to 
 assume that the act of construing the Constitution has that effect. " (610.) 
 
 It is not perceived how this case gives any aid or comfort to those who promote the contention 
 adverted to. 
 
 The remark of the court in McCulloch v. Maryland (4 Wheaton, 416), purely a dictum made by way 
 of illustration, when discussing the powers reasonably to be implied from the concise and general pro- 
 visions of the Constitution, necessary, appropriate, and plainly adapted to effectuate its purposes, that — 
 "he would be charged with insanity who should contend that the legislature might not superadd to the 
 oath directed by the Constitution, such other oath of office as its wisdom might suggest " does not impress 
 us as entitled to much weight in construing a provision of the Constitution which the court was not con- 
 sidering and to which the doctrine "that a government intrusted with such ample powers, on the due 
 execution of which the happiness and prosperity of the nation so vitally depends, must also be intrusted 
 with ample means for their execution," can have little, if any, application. This seems to us more 
 obvious when it is noted that the oath prescribed by the Constitution is simply to support the Constitu- 
 tion. In the line of the doctrine stated it might be said that an oath to faithfully discharge the duties 
 of the office was a proper "means for their execution," and one reasonably involved in the implied 
 powers. 
 
 It is suggested that the existence of the clause "but no religious test shall ever be required as a 
 qualification to any office or public trust under the United States," which is found in Article VI of the 
 Constitution, in a paragraph relating wholly to oaths, has a direct tendency to show that the previous 
 paragraph in Article I, section 2, prescribing qualifications, was not intended to be exclusive, inas- 
 much as this paragraph in Article VI is said to add a qualification which is entirely inconsistent with the 
 idea that the prior paragraph was exclusive. Reflection, however, leads us to the conclusion that this 
 paragraph in Article VI has no proper connection with or relation to the paragraph in Article I, sec- 
 tion 2. We think the word "qualification" in connection with "religious test" is used in an entirely 
 different sense from that in which the word "qualification" is used in Article I, section 5. It is clearly 
 applied to and is a description of the "religious test," and must be construed in connection with that 
 phrase, no "religious test * * * as a qualification." The clause is found in a paragraph which 
 relates solely to the oath to be administered. 
 
 Qualification, when in used in discussing the elements which a member-elect must possess in 
 order to be entitled to enter upon the office, is synonymous with eligibility. This is substantially the 
 definition of legal lexicographers — Bouvier, Rapalje, and Anderson. " The recognized legal meaning 
 in our constitutions" of the word "test" " is derived from the English test acts, all of which related 
 to matters of opinion, and most of them to religious opinion. Such has been the general understanding
 
 § 477 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 539 
 
 of framers of constitutions." (Attorney-General r. Detroit Common Council (58 Mich., 217); Anderson's 
 Dictionary of Law, -'Test;" "Test act;" "Test oath.") 
 
 The English test acts (25 Geo. II, c. 2) required persons holding office within six months after 
 appointment to take the oath of allegiance and supremacy, and subscribe a declaration against tran- 
 substantiation, and receive the sacrament according to the usage of the Church of England. The qualifi- 
 cation of a "religious test" thus prohibited relates clearly to something "required" to be done by an 
 officer when entering upon or after having entered upon the office, and not to qualifications or elements 
 of eligibility which he must possess or disqualifications or elements of ineligibility which he must not 
 possess before he can enter upon the office. Qualification or disqualification, eligibility or ineligibility 
 is a status that either does or does not exist at the time of entering upon the office. The qualification 
 of a religious test has no existence as a status; it is not a status, it is simply a condition to be performed. 
 No member can change his status as to the elements of eligibility or qualification as defined in Article I, 
 section 2, at the time of entering upon the office; but if the qualification of a religious test existed 
 every member could, if his conscience were sufficiently elastic, comply with the test. One is predi- 
 cated upon the past and the other upon the future. One relates to things done or not done; the other 
 to things to be done. 
 
 An examination of the constitutional history of this clause fully corroborates this view. The last 
 paragraph of Article VI, with the exception of the clause as to the test oath and the word "affirmation" 
 (which was added by amendment), is substantially Article XX of the first draft of the Constitution, as 
 reported by the committee of detail August 6, 1787. (The Madison papers, containing debates on the 
 Confederation and Constitution, vol. 5, p. 381; Elliott's Debates.) 
 
 The clause in question first appears in the proceedings August 20, 1787, and was introduced by 
 Mr. Pinckney, as an independent proposition to be referred to the committee of detail, and then read: 
 
 "No religious test or qualification shall ever be annexed to any oath of office under the authority 
 of tne United States." (Ibid., 446.) 
 
 That the word "qualification" as here used related to the oath, and to nothing else, is too clear 
 for argument, and that it was not used in the sense in which it was used in Article I, section 5, is 
 likewise clear. This conclusion is emphasized by the fact hereafter noted that it was at one time 
 proposed, by an independent constitutional provision, to confer upon the legislature express authority 
 to add one qualification. The effort failed, and it is hardly to be supposed that the Constitution makers 
 would do indirectly by this clause what they had directly decided not to do. Later, when Article XX 
 was being considered, Mr. Pinckney moved as an amendment to the article his original proposition in 
 precisely the language in which it now appears in the Constitution. (Ibid., 498.) 
 
 There is nothing in the proceedings to indicate that by a change in the phraseologj' he intended 
 any change in its meaning. The selection by him for amendment of the clause as to the oath, and not 
 that relating to the qualification, is in harmony with this view. 
 
 For these reasons it seems to us that the clause relating to religious tests can serve no legitimate 
 purpose in enlarging that prescribing the elements of eligibility. 
 
 With the exception of Barker r. The People (20 Johns. (N. Y.), 457), which is affirmed in Barker v. 
 The People (3 Cowen, 636) and Rogers r. Buffalo (123 N. Y., 173), hereinafter discussed, we do not 
 find any case construing a similar constitutional provision which sustains the right to add qualifications. 
 
 Among the elementary writers, Throop on Public Offices, section 73, says: 
 
 "The general rule is that the legislature has full power to prescribe qualifications for holding office, 
 in addition to those prescribed by the Constitution, if any, provided that they are reasonable and not 
 opposed to the constitutional provisions or to the spirit of the Constitution." 
 
 But he cites no authority to sustain his text as to constitutional offices. 
 
 Cushing (Law and Practice of Legislative Assemblies, p. 195, sec. 477) says: "To the disqualifi- 
 cations of this kind may be added those which result from the commission of some crime, which would 
 render the Member ineligible," and cites no authority. 
 
 Burgess, in his work on Political Science and Constitutional Law, without gi\'ing any authority, 
 
 "I do not think that either of these bodies can add anj'tning. in principle, to these constitutional 
 qualifications. Certainly the Commonwealths can not add anj^hing in principle or in detail. They 
 have attempted to do so, but Congress has always disregarded these attempts. If the Congress can add 
 anything by law, or if either House can do so through the power of judging of the qualifications of its
 
 540 PRECEDENTS OF THE HOUSE OF KEPRESENTATIVES. § 477 
 
 I 
 
 Members, it muBt be something already existing, by reasonable implication, in these constitutional 
 qualifications. For example, I think it certain that either House might reject an ineane person, i. e., 
 miglit require sanity of mind as a qualification, or might exclude a grossly immoral person, i. e., might 
 require fair moral character as a qualification. (Vol. II, p. 52.) 
 
 "The Commonwealths can not add to or substract from these qualifications. On the other hand, 
 the Congress may by law, or either House may, in the exercise of the power to judge of the qualifica- i 
 tions of its Members, make anything a disqualification that is reasonably implied in the constitutional 
 provisions in regard to this subject. Certainly they may make the corrupt use of his powers by a 
 legislator a disqualification; and they have done so." (Vol. II, pp. 52, 53.) 
 
 The case of Whittemore, in the Forty-first Congress, is suggested as a legislative precedent for the 
 right to exclude. We have examined that case with care, and we feel bound to say that we do not think 
 it entitled to any weight as a precedent. The argument upon which it was based shows the action of 
 the House to have been unwarranted and ill advised in excluding \\'hiftemore. The only speeches 
 made in support of the proposition were by Mr. Logan. He does not in any way refer to the one great 
 legal question involved, as to whether Congress, to say nothing of the House, acting alone, had the 
 power to add to the qualifications specified in the Constitution, and that question was not raised during 
 the debate, although at that time (1870) several State courts, one at least, had discussed it, People v. 
 Barker having been decided in 1824. 
 
 The House had, apparently, never heard that there was such a question. The only provision of 
 the Constitution that could possibly justify the action of the House, that constituting the House the 
 judge of the "election returns and qualifications of its own Members," was not referred to directly or 
 indirectly, and, if the debate is the criterion, the House acted without any reference to it whatever. 
 The clause stating the qualification was incidentally referred to once. Indeed, they apparently acted 
 upon an entirely different provision that does not relate to exclusion or determining eligibility or 
 qualifications, and Mr. Logan distinctly based his case upon it when he says: 
 
 "I base my opinion, first, upon the Constitution of the United States, which authorizes Congress 
 to prescribe rules and regulations for the government of their Members, and provides thr.t by a two-thirds 
 vote either House may expel any one of its Members without prescribing the offenses for which either 
 House may expel." 
 
 He then proceeded to make this gratuitous and unwarranted assumption: 
 
 "This being the theory with which I start out, I then assume that where the House of Representa- 
 tives has power to expel for an offense against its rules or a violation of any law of the land, it has the 
 same power to exclude a person from its body." 
 
 Without giving any attention to the legal distinctions involved, or even referring to the constitu- 
 tional right of passing upon qualifications, or adverting to the fact that exclusion is the act of a majority 
 and expulsion of two-thirds, he begs the whole question and assumes their identity. He quotes a 
 statute which makes a disqualification to hold office absolutely dependent upon a conviction, and then 
 assumes it disqualified \Miittemore, although there had been no conviction. He admits there was no 
 Congressional precedent for the action which he proposed. He cites the Wilkes case in the English 
 Parliament as a precedent, when, as he states it, that case was directly in point against him. Wilkes, 
 he says, was elected four successive times to the same Parliament, three times without opposition and 
 the fourth time against an opposing candidate. Three times he was expelled. The fourth time his 
 opponent was seated. Neither time, according to his statement, was Wilkes excluded. 
 
 Just how that case could be an authority for excluding as against expelling Whittemore we can not 
 see. These considerations (and many more could be suggested), in view of the fact that the House, 
 under Mr. Logan's lead, absolutely refused to allow any committee to examine, for the information of 
 the House, the legal questions involved or to have the case referred to any committee — though such a 
 course was desired by such men as Poland of Vermont, Farnsworth of Illinois, and Schenck and 
 Garfield of Ohio — and would not allow Schenck and Garfield to be heard on the law for even ten 
 minutes each, deprive this case, in oiu' opinion, of all weight as a precedent. 
 
 As might perhaps be expected, Mr. Logan's statement of the Wilkes case was by no means accurate. 
 It is extremely interesting, as well as important, to note that the whole history of that case is a striking 
 condemnation of the position of Mr. Logan. While the record is not full, and the distinction between 
 the power of exchision and that of expulsion was not emphasized in argument, the result makes it the
 
 § 477 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 541 
 
 conspicuous proposition. On the occasion of Wilkes's third election the House of Commons adopted 
 this resolution: 
 
 "That John Wilkes, esq., having been in this session of Parliament expelled this House, was, and 
 is, incapable of being elected a member to serve in the present Parliament." (CavendL'ih, Debates, vol. 
 1, p. 231.) 
 
 In opposing the adoption of this resolution, Edmund Burke said: 
 
 "I rise to obtain some information \ipon this great constitutional point. You are going to make a 
 disqualification of a member to sit in Parliament; you are going to make a disqualification contrarj- 
 to the unanimous opinion of a whole county. Words have been thrown out by the noble lord importing 
 that this is the law of Parliament. Is that, sir, a fact? Is this the law of Parliament? I wish to have 
 that law established on the ground which establishes all laws. Has it acts of Parliament? It has none. 
 Has it records? Has it custom? I have not heard a variety of precedents used." (Ibid., p. 231.) 
 
 Here it will be seen that of all who took any part in that debate, the only man who lives in historj' 
 made the specific point that the House of Commons was adding, in violation of law, l)y its own action, a 
 disqualification in Wilkes's case. The resolution which declared Wilkes ineligible in effect was adopted 
 by an overwhelming majority February 17, 17G9. Before this he had been twice expelled. May 3, 
 1782, when reason had resumed its sway and the House was no longer overawed by power, a resolution 
 revising in emphatic terms a portion of its prior action in the Wilkes case was adopted. It is significant 
 that it did not attempt to impeach the propriety or validity of the action of the House in twice expelling 
 Wilkes, but it wholly reversed its action in establishing a disqualification and then excluding him 
 therefor. The resolution adopted on the motion of Wilkes himself reads: 
 
 "That the said resolution [that of February 17, 1769, declaring him incapable of being elected] 
 be expunged from the journals of this House, as being subversive of the rights of the whole body of 
 electors of this Kingdom." (Hansard, vol. 22, p. 1409.) 
 
 That the significance of this resolution and its vital importance, as declaring the lack of power of 
 one branch of the legislature to add a qualification, was fully appreciated at that time, clearly appears 
 from the discussion on its adoption, ^^'hile Fox conceded the principle, he thought the resolution 
 unnecessary, as it would not have the force of law and would not change the doctrine. The Lord- 
 Advocate agreed with Mr. Fox and spoke principally to the "idea of excluding anyone from a seat in 
 that House by a mere resolution of the House, and without the concurrence of the other branches of the 
 legislature. Such a resolution would be contrary to all law, and to the very spirit of the constitution, 
 according to which no one right or franchise of an individual was to be taken away from him but by 
 law." (Ibid, p. Mil.) 
 
 May, in his able work on Parliament, very clearly states the law when he says: 
 
 "But, notwithstanding their extensive jurisdiction in regard to elections, the Commons have no 
 control over the eligibility of candidates, except in administration of the laws which define their quali- 
 fications." (May on Parliament, p. 53.) 
 
 Thus at that early day was the distinction between exclusion and expulsion emphasized by the 
 House of Commons and the first legislative precedent established against the pretended right to add a 
 disqualification for office in violation of law. 
 
 So far as the Edmunds Act, which does not require a conviction for disqualification, goes, the 
 case of Barker r. The People (3 Cowen, 686) is distinctly adverse to the conclusion of the majority of 
 the committee. The court were passing upon the validity of a statute authorizing a judgment rendering 
 a party ineligible to office on a conviction for sending a challenge to fight a duel, and the court sustained 
 the judgment in the following expressive language: 
 
 "Wliether the legislature can exclude from public trusts any person not excluded by the express 
 niles of the Constitution, is the question which I have already examined; and according to my views 
 of that question, there may be an exclusion by law, in punishment for crimes, but in no other manner 
 and for no other cause." 
 
 Again — 
 
 "I therefore conceive it to be entirely clear, that the legislature can not establish arbitrary exclu- 
 sions from office, or any general regiUation requiring qualifications which the Constitution has not 
 required." 
 
 It appeared that no qualification whatever in respect to membei-s of the assembly was required
 
 542 PKECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 477 
 
 by the Constitution, and the court said, arguendo, that a regulation requiring a member of the assembly 
 to V)e a freeholder "would be an infringement of the Constitution." There was a blank, not even a 
 negative provision. 
 
 We do not understand that Rogers v. Buffalo (123 N. Y., 173) in any way affects the authority of 
 Barker v. The People, supra, but on the other hand cites it with approval, and clearly distinguishes 
 from it the case which they were deciding. They were construing a statute which created a board of 
 civil-service commissioners, and after citing and assenting to Barker v. The People, supra, said (p. 184): 
 
 "But, in our judgment, the legislation which creates a board of commissioners consisting of two 
 or more persons, and wliich provides that not more than a certain proportion of the whole number of 
 commissioners shall he taken from one party, does not amount to an arbitrary exclusion from office, nor 
 to a general regulation requiring qualification not mentioned in the Constitution." 
 
 The opinion thus clearly eliminated the constitutional question as to oligiljility and determined 
 the case upon another ground. 
 
 Sound reason does not sustain this claimed right to exclude. If the construction contended for 
 is admitted, it must be conceded that the power of adding qualifications is unlimited, as there is nothing 
 in the Constitution which circumscribes it. The suggestion in Barker v. The People that the only power 
 to add is in case of a conviction of crime is purely arbitrary and gratuitous, and absolutely no constitu- 
 tional authority is given therefor. The rigid confinement by the court of the right to break away from 
 the Constitution to a conviction for crime must have been in the nature of expiation, a satisfying of the 
 judicial conscience for the departure thus made from the Constitution. If the power exists, it must be 
 unlimited, and, therefore, while you can not take from or narrow the two elements first specified, you 
 have unlimited power to add to them. For instance, unless a man is at least 25 years of age he is not 
 eligible, therefore the Constitution does not undertake to say that a greater age may not be required. 
 In fact, the necessary inference is that only the minimum limit as to age has been established, and the 
 legislature has unlimited power to add to that qualification, and hence may require all Representatives 
 to be 50 years of age. The same course could l)e pursued with reference to the seven years' citizenship 
 clause: You can not act within the domain to which the Constitution has confined itself. Outside of 
 it, you can do anything. We can not indorse any such doctrine or help to work it into a decision of the 
 House in the case now under consideration. 
 
 The consequences just suggested are the logical result of the theory, and while tlie illustrations 
 are extreme, they are the best test of the principle. Would anyone feel justified in asserting that any 
 such change in the age qualification was either contemplated or is possible? Yet it must have been, 
 and must be, if tlie argument is sound. 
 
 Inasmuch as the argument of John Randolph in 1807 is thought to be able, ingenious, and per- 
 suasive upon this clause, we have taken occasion to examine it, and find him expressing "extreme 
 surprise" because the Committee on Elections had so construed this clause as to restrict "the States 
 from annexing qualifications to a seat in the House of Representatives. He could not view it in that 
 light. Mark the distinction between the first and second paragraphs. The first is affirmative and 
 positive." Then he draws a contrast between the affirmative and negative provisions. He conceded 
 that if the Constitution had read in the affirmative it would have settled the question of qualification and 
 been exclusive. He does not appear to have gone for light to the proceedings of the Federal Conven- 
 tion. The House in that case, Barney v. McCreery (Digest Election Cases, vol. 1, p. 157), decided 
 against his contention, and his proposition has long been obsolete. 
 
 The whole case of the right to add qualifications is based upon the fact that such qualifications as 
 are prescribed are negatively expressed. The juxtaposition of the affirmative and negative clauses, it 
 is said, has some significance. It does not appear that any of the courts' elementary writers or lawyers 
 that have had occasion to insist upon this have ever availed themselves of the debates in the Federal 
 Convention for the purpose of ascertaining the intention of the framers of the Constitution. While 
 this precaution has not hitherto been observed, common fairness and a due regard for a thorough inves- 
 tigation require that these great men, whose handiwork has so well withstood the assaults of time, should 
 now and upon this important question be allowed to speak for themselves. An inquiry as to the origin 
 of this clause will not only be interesting and instructive, but possibly determining. This course is 
 stated by Cooley to be proper. (Cooley's Constitutional Limitations, p. 80.) 
 
 And Story, in his great work on the Constitution, makes constant use of the debates in the Federal 
 Convention.
 
 §477 
 
 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 543 
 
 In the report of the committee of detail giving the first draft of the Constitution, August 6, 1787 
 (Madison Papers, etc., vol. 5, p. 376), the paragraph in question appears as an independent section, i. e., 
 section 2, Article IV, and reads: 
 
 "Sec. 2. Every Member of the House of Representatives shall be of the age of twenty-five years 
 at least, shall have been a citizen of the United States for at least three years before his election, and 
 shall be at the time of his election a resident of the State in which he shall be chosen." 
 
 It is significant that this section is affirmative, and is therefore exclusive, as is conceded, in its 
 character. It is important to inquire whether the change in phraseology was made for the purpose of 
 changing its legal effect. That it was understood by the framers of the Constitution to be exclusive will, 
 we think, clearly appear. The first consideration which indicates this is the incorporation in the same 
 draft of the Constitution of section 2 of Article VI, which reads: 
 
 "Sec. 2. The Legislature of the United States shall have authority to establish such uniform 
 qualifications of the Members of each House, with regard to property, as to the said Legislature shall 
 seem expedient." 
 
 The inference that the framers of this draft must have understood that section 2 of Article IV was 
 exclusive, and that in order that the legislature might have any power at all over qualifications it was 
 necessary to confer it by a later and specific provision, is imperative and obvious. The debates confirm 
 this idea. 
 
 Madison opposed the proposed section 2, Article VI, "as vesting an improper and dangerous 
 power in the legislature. The qualifications of elector and elected were fundamental articles in a repub- 
 lican government, and ought to be fixed by the Constitution. If the legislature could regulate those 
 of either, it can by degrees subvert the Constitution. 
 
 "A republic may be converted into an aristocracy or oligarchy, as well by limiting the number 
 capable of being elected as the number authorized to elect. In all cases where the representatives of 
 the people will have a personal interest distinct from that of their constituents, there was the same 
 reason for being jealous of them as there was for relying upon them with full confidence when they had a 
 common interest. This was one of the former cases." 
 
 Gouvemeur Morris moved to strike out "with regard to property," in order, as he said, "to leave 
 the legislature entirely at large " — precisely what is now claimed without any such constitutional pro- 
 vision. This was objected to by Mr. Williamson on the ground that should "a majority of the legislature 
 be composed of any particular description of men — of lawyers, for example — which is no improbable 
 supposition, the future elections might be secured to their own body." 
 
 Mr. Madison further observed that "the British Parliament possessed the power of regulating the 
 qualifications both of the electors and the elected, and the abuse they had made of it was a lesson worthy 
 of our attention. They had made changes in both cases, subservient to their own views of political or 
 religious parties." (Madison Papers, etc., vol. 5, p. 404.) 
 
 This article was not agreed to. 
 
 Note the significance and primal importance of Mr. Madison's assertion that "the qualifications of 
 electors and elected were fundamental articles in a republican government, and ought to be fixed by the 
 Constitution," as otherwise the legislature might "subvert the Constitution." 
 
 His insistence upon these grounds prevented the adoption of the provision that only conferred this 
 power upon the legislature in one particular, and the convention thus evidently adopted his views as to 
 the exclusiveness of the provisions of Article IV, section 2. 
 
 Again, when the original proposition which resulted in Article IV, section 2, was under discus- 
 sion prior to the draft reported by the committee of detail, Mr. Dickinson opposed the section altogether, 
 expressly because it would be held exclusive, saying he "was against any recitals of qualifications in the 
 Constitution. It was impossible to make a complete one, and a partial one would, by implication, tie 
 up the hands of the legislature from supplying omissions." (Ibid., p. 371.) 
 
 Mr. Wilson took the same view, saying, "Besides, a partial enumeration of cases will disable the 
 legislature from disqualifying odious and dangerous characters." (Ibid., 373.) 
 
 When this section in the draft was under discussion, after "three" had been stricken out and 
 "seven" inserted as to citizenship, Alexander Hamilton moved "that the section be so altered as to 
 require merely citizenship and inhabitancy," and suggested that "the right of determining the rule of 
 naturalization will then leave a discretion to the legislature on the subject which will answer every 
 purpose." (Ibid., p. 411.)
 
 544 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 477 
 
 Here it ia clear that, as Hamilton construed this provision, without this latitude as to naturalization, 
 the legislature iiad no discretion or power. From the affirmative language of this provision, then, as it 
 stood in the report of tlie committee of detail, and the understanding of the framers of the Constitution, it 
 is clear that it was exclusive. This section was not changed to the negative form by amendment or as 
 the result of any debate. In its affirmative form with other sections that had been finally acted upon, 
 and their construction and terms definitely settled, it was referred to a committee "to revise the style of 
 and arrange the articles which had been agreed to by the House," and this committee consisted, among 
 others, of Mr. Hamilton, Mr. Gouvemeur Morris, and Mr. Madison. (Ibid., p. 530.) 
 
 This committee had no power to make any change in the legal effect of any of the clauses submitted 
 to them. They were simply "to revise the style of and arrange." Certainly, with his very pronounced 
 views, Mr. Madison would not have made a change in Article IV, section 2, that would, in his opinion, 
 have placed it within the power of the legislature to "subvert the Constitution." 
 
 Yet, when the committee reported the Constitution as it now stands. Article IV is rearranged so as 
 to be included in Article I, and the original affirmative section 2 of Article IV appears in the negative 
 form as the second independent paragraph of Article I , somewhat changed, il is true, but in no sense con- 
 nected with or dependent upon the preceding paragraph, which, with an improvement in phraseology, 
 is section 1 of Article IV of the draft. This reference to the original sources of information, we submit, 
 deprives the argument sought to be derived from the juxtaposition of all significance. (Ibid., p. 559.) 
 
 An examination of the finished work discloses the fact that the rearrangement and changes in 
 phraseology by the committee were extensive. The object unquestionably was to make the arrangement 
 more orderly and lucid and the language more perspicuous and felicitous. To hold that in any partic- 
 ular any change was intended to be made in the legal effect is to impeach the integrity of men whose 
 characters are of the most illustrious in our history. To assert that they unwittingly made such changes is 
 a much more grievous assault upon their intelligence and ability. 
 
 Moreover, we are not left to inference as to how this clause in its present form was interpreted by 
 the most eminent of the framers of the Constitution. The Federalist, as is well known, was published 
 while the Constitution was undergoing public discussion, and while it was being ratified by the States. 
 It had been ratified by six States only when the numbers of the Federalist hereafter referred to appeared. 
 The author of No. 52 evidently assumes that all of the qualifications of representatives had been "very 
 properly considered and regulated by the convention." 
 
 He says: 
 
 "The qualifications of the elected, being less carefully and properly defined by the State constitu- 
 tions, 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; 
 rau.st have been seven years a citizen of the United States; must at the time of his election be an inhabi- 
 tant 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 i.-^ 
 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." 
 
 If the learned author had supposed that any limitations in addition that might appeal to the caprice 
 of a legLslature could be added, he would hardly have used the term "these reasonable limitations," as 
 he evidently did, as descriptive of all of the limitations to be imposed. In No. 57 a general reference to 
 this clause is made, which evidently proceeds upon the idea that the qualifications to be required are 
 stated in the Constitution. It reads: "Who are to be the objects of popular choice? Every citizen 
 whose merit may recommend him to the esteem and confidence of the country. No qualification of 
 wealth, of birth, of religious faith, or of civil professions is permitted to fetter the judgment or disappoint 
 the inclination of the people." 
 
 How could he know that unless the Constitution settled the qualifications? The authorship of 
 these two numbers is in doubt between Madison and Hamilton. Hamilton is conceded to be the author 
 of No. 60, and with many no authority is greater than his; and this, .so far as his authority goes, settles it 
 beyond cavil. lie says: 
 
 "The truth is that there is no method of securing to the rich the preference apprehended but by 
 prescribing qualifications cf property, either for those who may elect or be elected. But this forms no 
 part of the power to be conferred upon the National Government. Its authority would be expressly 
 restricted to the regulation of the times, the places, the manner of elections. The qualifications of the
 
 § 477 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 545 
 
 persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed 
 in the Constitution and are unalterable by the legislature." 
 
 This unequivocal declaration was made after the negative form of expression had been adopted; 
 made concerning the provision as it now exists in the Constitution. It is not contended that the Feder- 
 alist was a determining factor in securing the ratification of the Constitution, though it was undoubtedly 
 published for that purpose. So far, however, as this clause weighed in the public mind, as this is the 
 only construction that appears to have been placed upon it, it may be inferred that this construction 
 was adopted by the States which afterwards ratified. 
 
 In the light of these facts it is to be deplored that exigencies arise which are supposed to justify a 
 construction in direct conflict with the intention and interpretation of those who framed and assisted in 
 ratifying the Constitution. It seems clear that the negative form of expression has no interpretive sig- 
 nificance, and as it affords no support for the proposition which involves the right to add qualifications, 
 that proposition must fall with the erroneous construction upon which it is based. 
 
 The great weight of the other authorities sustains this conclusion. 
 
 In Thomas v. Owens (4 Md., 223) the court said: 
 
 "Where a constitution defines the qualifications of an officer, it is not within the power of the legis- 
 lature to change or superadd to it, unless the power be expressly, or by necessary implication, given 
 to it." 
 
 And in Page v. Hardin (8 Ben. Mon., 661) the court said: 
 
 "We think it entirely clear that so far as residence is to be regarded as a qualification for receiving 
 or retaining office, the constitutional provision on the subject covers the whole ground, and is a denial of 
 power to the legislature to impose greater restrictions." 
 
 In Black v. Trover (79 Va., 125), also, the court said: 
 
 "Now, it is a well-established rule of construction, as laid down by an eminent writer, that when the 
 Constitution defines the qualifications for office, the specification is an implied prohibition against legis- 
 lative interference to change or add to the qualifications thus defined." 
 
 Mr. Justice Story is conceded to be one of the greatest authorities upon the construction of the 
 Constitution, and upon this point he states the law as follows: 
 
 "It would seem but fair reasoning upon the plainest principles of interpretation, that when the 
 Constitution established certain qualifications as necessary for office, it meant to exclude all others as 
 prerequisites. From the very nature of such a provision, the affirmation of these qualifications would 
 seem to imply a negative of all others." (Story on the Constitution, sec. 625.) 
 
 Cooley certainly stands equal in authority to Story, and he says: 
 
 "Another rule of construction is that where the Censtitution defines the circumstances under which 
 a right may be exercised, or a penalty imposed, the specification is an implied prohibition against legis- 
 lative interference, to add to the condition, or to extend the penalty to other cases. On this ground it 
 has been held by the supreme court of Maryland that where the Constitution defined the qualifica- 
 tions of an officer it was not in the power of the legislature to change or superadd to them, unless the 
 power to do so was expressly, or by necessary implication, conferred by the Constitution." (Cooley's 
 Constitutional Limitations, p. 78.) 
 
 Cashing, as against his former statement, says: 
 
 "The Constitution of the United States having prescribed the qualifications required of Repre- 
 sentatives in Congress, the principal of which is inhabitancy within the State in which they shall be 
 respectively chosen, leaving it to the States only to prescribe the time, place, and manner of holding 
 the election, it is a general principle that neither Congress nor the States can impose any additional 
 qualifications. It has therefore been held, in the first place, that it is not competent for Congress to pre- 
 scribe any further qualifications or to pass any law which shall operate as such." (Cushing on Law and 
 Practice of Legislative Assemblies, second edition, p. 27, sec. 65.) 
 
 John Randolph Tucker, one of the latest writers on the Constitution, and an able one, is explicit 
 on this point: 
 
 "Nor can the Congress nor the House change these qualifications. To the latter no such power was 
 delegated, and the assumption of it would be dangerous, as invading a right which belonged to the con- 
 stituent body, and not to the body of which the representative of such constituency was a member. 
 (Tucker on the Constitution, 394.) 
 
 5094— VOL 1—07 35
 
 546 PBECEDENXS OF THE HOUSE OF KEPEESENTATIVES. § 478 
 
 "The principle that each House has the right to impose a qualification upon its membership which 
 is not prescribed in the Constitution, if established, might be of great danger to the Republic. It was 
 on this excuse that the French directory procured an annulment of elections to the Council of Five Hun- 
 dred, and thus maintained themselves in power against the will of the people,who gladly accepted the 
 despotism of Napoleon as a relief. (Foster on the Constitution, p. 367.) 
 
 "It is a fair presumption that where the Constitution prescribed the qualifications it intended to 
 exclude all others. (Paschal's Annotated Constitution, second edition, p. 305, sec. 300.) 
 
 "Where the Constitution prescribed the qualifications for an office, the legislature can not add 
 others not therein prescribed." (McCrary on Elections, sec. 312.) 
 
 McCrary also takes the ground that statutory and constitutional provisions making ineligible to 
 office any person who has been guilty of crime presuppose a conviction before the ineligibility attaches. 
 (Ibid, p. 345.) 
 
 Paine, in his work on elections, takes the same view (pp. 104-108). 
 
 Certainly the great weight of authority is against the right to add, even by law, to the qualifications 
 mentioned in the Constitution. 
 
 478. The case of Brigham H. Boberts, continued. 
 
 In 1900, in a sustained report, the majority of the committee held 
 that a Member of Congress ■was an officer, subject to statutory disquali- 
 fications as such. 
 
 Discussion of the la"ws of Congress against polygamy as creating a 
 statutory disqualification. 
 
 Discussion of the oath of July 2, 1862, as creating a statutory dis- 
 qualification. 
 
 3. As to the status of the Member as an officer, and disqualifications under the 
 statute : 
 
 The majority report says: 
 
 We present now the statutory declarations where disqualifications have been imposed. 
 
 Section 21 of the act of April 30, 1790, is as follows: 
 
 "That if any person shall, directly or indirectly, give any sum or sums of money, or any other 
 bribe, present, or reward, or any promise, contract, obligation, or security, for the payment or delivery 
 of any money, present, or reward, or any other thing, to obtain or procure the opinion, judgment, or 
 decree of any judge or judges of the United States, in any suit, controversy, matter, or cause depending 
 before him or them, and shall be thereof convicted, and so forth, shall be confined and imprisoned, at 
 the discretion of the court, and shall forever be disqualified to hold any office of honor, trust, or profit 
 under the United States." 
 
 Section 5499, which was passed in 1791, provides: "That every judge of the United States who in 
 any wise accepts or receives any sum of money or other bribe, etc., shall be fined and imprisoned, and 
 shall be forever disqualified to hold any office of honor, trust, or profit under the United States." 
 
 Is a Member of Congress an officer'^ 
 
 Before citing other acts of Congress it is proper to discuss the question as to whether a Member of 
 Congress is an officer within the meaning of the statute.' 
 
 If a Member of Congress is not an officer, if the qualifications of a Member of Congress are only 
 those named in the Constitution, then, of course, the makers of the Constitution meant that nobody 
 could be made ineligible for Congress, either by law or by the act of either body, even though laws passed 
 immediately after the adoption of the Constitution made him ineligible for all other positions under the 
 Government. 
 
 ' The question as to whether or not a Member of the Senate or House is an officer of the United States 
 was discussed incidentally in a learned debate in the Senate on December 19, 1863, and January 20, 21, 
 and 25, 1864, the occasion being a proposed rule, which was agreed to, providing that Senators should 
 take and subscribe in open Senate to the oath or affirmation provided by the act of July 2, 1862. (First 
 session Thirty-eighth Congress, Globe, pp. 48, 275, 290, 320-331.)
 
 §478 
 
 POLYGAMY AND OTHER CRTMES AS DISQUALIFICATIONS. 547 
 
 Now, upon that proposition we make these observations as to the meaning of the word "office." 
 
 First. Undoubtedly under the Constitution, in one or two instances, the word "office" does not 
 include Representatives in Congress, as, for example, the last paragraph of section 6, article 1: "No per- 
 son holding any office under the United States shall be a Member of either House during his con- 
 tinuance in office." 
 
 In that case the words "holding any office" means an office other than a Member, but the context 
 is absolutely unmistakable, and no person is in danger of assuming, even if a Member of Congress hold 
 an office, that it meant to say that no Member of Congress shall be eligible to be a Member of Congress. 
 
 In the second place, the provision in the last paragraph of section 3 of article 2, relating to the 
 duties of the President, that he shall commis.sion all the officers of the United States, does not mean that 
 he is to commission Members of Congress, but he is himself an officer, and he does not commission himself, 
 nor does he commission the Vice-President, who is also an officer under the United States. 
 
 So also paragraph 2, section 1, article 2: "But no Senator or Representative, or person holding an 
 office of trust or profit under the United States, shall be appointed an elector." 
 
 There the distinction is made "No Senator or Representative, or person holding an office of trust." 
 
 But under the Constitution the word "office" must include in certain of its provisions a Repre- 
 sentative in Congress. 
 
 It is inconceivable that in the Constitution the word "office" never includes a Member of Congress. 
 Look at the last paragraph of section 3, article 1. 
 
 Judgment in cases of impeachment shall not extend further than to removal from office and dis- 
 qualification to hold and enjoy any office of honor, trust, or profit under the United States. 
 
 It is conceivable that the framers of the Constitution meant that a man might be adjudged guilty 
 in case of impeachment, and that that judgment of guilty could carry with it a judgment disqualifying 
 him from holding any office, save only to be a Representative or Senator in Congress? 
 
 Paragraph 8, section 9, article 1, is as follows: "No title of nobility shall be granted by the United 
 States, and no person holding any office of profit or trust under them shall, without the consent of the 
 Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, 
 or foreign state." 
 
 Did the Constitution mean that Representatives and Senators in Congress could receive emolu- 
 ments, presents, office, or title from some king, prince, or foreign state, but no other person holding an 
 office could without the consent of Congress? 
 
 But in the next place, as to statutes. Whatever may be held to be the meaning of the word ' " office " 
 m the Constitution, it does not follow that the same meaning must be given to it in the statutes. We 
 find a varying meaning in the Constitution, and we find a varying meaning in the statutes. The act of 
 1790 has always been assumed to cover Members of Congress. 
 
 Section 5500 of the Revised Statutes, originally passed in 1853, and now in substantially the form 
 in which it was when originally passed, provides: "Any Member of either House of Congress who asks, 
 accepts, or receives any money, or any promise, contract, undertaking, obligation, gratuity, or security 
 for the payment of money, * * * either before or after h-h has been qualified or has taken his seat 
 as such Member, with intent to have his vote or decision on any question, matter, cause, or proceeding 
 * * * pending in either House, * * * shall be punished by a fine, etc." 
 
 Section 5502 is as follows: "Every Member, officer, or person convicted under the provisions of 
 the two preceding sections who holds any place of profit or trust shall forfeit his office or place, and shall 
 thereafter be forever disqualified from holding any office of honor or trust or profit under the United 
 States." 
 
 This section applies explicitly to a Member of Congress, and brings forfeiture of the office or place 
 held by him. If "office" in this section does not include a Member of Congress the word "place" must 
 include him. 
 
 Now, the word "office" in that concluding part of this section must refer to "Member." First, 
 because the word ' ' office ' ' is used in the preceding line as necessarily including a place that is held by 
 a Member. It can not fail to include that, for it refers to a "Member" and what shall happen to him. 
 In the next place, because it is not conceivable that the legislative body intended that the violation of 
 that law by a Member should forfeit the position that the Member had and then not intend to disqualify 
 him from being elected again as a Member of the House when it disqualifies him from holding all other 
 offices or places under the United States.
 
 548 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 478 
 
 But that is not the only statutory construction of the word office. It is still more explicitly declared 
 in the test-oath act, of July 2 1862: "That hereafter every person elected or appointed to any office of 
 honor or profit under the Government of the United States, either in the civil, military, or naval depart- 
 ments of the public service, excepting the President of the United States, shall, before entering upon 
 the duties of such office and before being entitled to any of the salary or other emoluments thereof, take 
 and subscribe the following oath or affirmation: 
 
 '■ ' I, A B, do solemnly swear (or affirm) that I have never voluntarily borne arms against the United 
 States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or 
 encouragement to persons engaged in armed hostility thereto; that I have neither sought nor accepted, 
 nor attempted to exercise the functions of any office whatever under any authority or pretended author- 
 ity in hostility to the United States; that I have not yielded a voluntary support to any pretended gov- 
 ernment, authority, power, or constitution within the United States hostile or inimical thereto. 
 
 "'And I do further swear (or affirm) that to the best of my knowledge and ability I will support 
 the Constitution of the United States against all enemies, foreign and domestic; that I will bear true 
 faith and allegiance to the same; that I take this obligation freely, without any mental reservation or 
 purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am 
 about to enter, so help me God." ' 
 
 "Which said oath, so taken and signed, shall be preserved among the files <>f the court. House of 
 Congress, or department to which the said office may appertain. 
 
 "Any person who shall falsely take the said oath shall Ije guilty of perjurj', and on conviction, in 
 addition to the penalties now prescribed for that offense, shall be deprived of his office and rendered 
 incapable forever thereafter of holding any office of trust under the United States." 
 
 It will be noticed that the only person required to take that oath is an officer, a person elected or 
 appointed to any office of honor or profit, but it does not include in this phraseology a Member. 
 
 By reference to the concluding portion of the act it will appear that the word office does not include 
 a Member of Congress. 
 
 "Which said oath so taken and signed shall be preserved among the files of the court. House of 
 Congress, or department to which the said office may appertain." 
 
 We not only have the use of the word "Congress" as indicating towhat the word "office" appertains, 
 but also the universal , unquestioned construction by the acts of the Senate and of the House in compelling 
 the test oath to be taken year after year until it was repealed. Each House of Congress recognized that 
 that oath was an oath to be taken by a Representative in Congress, notwithstanding the fact that the 
 act passed made it apply only to a person elected or appointed to an office of honor or trust in the United 
 States. 
 
 We quote this section here, as well for the purpose of showing the Congressional precedents 
 imposing a substantial qualification, or disqualification, upon the Members of Congress, really substantial 
 in its character, as the facts of history show, as to exhibit what is meant in the statutes by the word 
 "office." 
 
 There are many other statutory provisions, passed from time to time since 1790, disqualifying for 
 office of trust or profit under the United States persons guilty of the several crimes defined in those 
 statutes. We do not refer to them specifically, but they are illustrated by the statutes already quoted. 
 
 It ought also to be said that section 8 of the Edmunds Act, whatever meaning may be given to it, 
 evidences the legislative will to disqualify polygamists for office. It indicated the legislative purpose 
 so aptly described by Justice Matthews, in the Ramsey case, when he said that no more cogent or salutary 
 method could be taken than was taken by the Edmunds Act, which undertook to withdraw from all 
 political influence those persons who showed a practical hostility to the development of a common- 
 wealth based upon the idea of the union for life of one man and one woman in the holy estate of 
 matrimony. 
 
 The statutory declaration, if we may use that form of expression as applicable to the joint action of 
 the House, coupled with the President's approval, is only a more solemn declaration by both Houses of 
 the principle that it has the right to exclude under certain conditions; that either House may do it. 
 That very point was made in the discussion on the test oath in the Senate — that of course that law could 
 not with certainty bind any succeeding Senate or any succeeding House, but that it was apparent that 
 BO long as there existed any necessity for such an oath, and in the very nature of things the time would 
 come in a few years when it would not be necessarv', either House would respect its requirements and 
 compel a submission to it; and that was the action of the Senate and House for nearly twenty years.
 
 § 478 POLYGAMr AND OTHER CRIMES AS DISQUALIFICATIONS. 549 
 
 The minority, in their views, hold: 
 
 Ii the right to add a disqualification by law be assumed, the disqualification imposed V)y the 
 Edmunds Act does not apply to a Member of Congress, and therefore does not affect Mr. Roberts. The 
 only portion of the section that can be said to have any application to a Member of the House of Repre- 
 sentatives is thai which declares that no polygamist, etc., shall "be entitled to hold any office or place 
 of public trust, honor, or emoltiment, * * * under the United States." Unless a Member of the 
 House holds an office "imderthe United States," within the meaning of the Constitution and the law, 
 there is no disqualification. 
 
 As to the nature of their offices, whether "under the United States" or otherwise. Members of 
 the House and Senate are evidently the same. The words "ofiice" and "offices" occur in the Consti- 
 tution and amendments twenty-three times, and the words "oflicer" and officers" fifteen times, and, 
 with the exception of possibly two instances, these terms are never used, either directly or indirectly, 
 as relating to or in connection with a Representative or Senator. 
 
 One possible exception referred to is found in Article I, section 3, and reads: "Judgment in cases 
 of impeachment shall not extend further than to removal from office, and disqualification to hold and 
 enjoy any office of honor, trust, or profit under the United States." 
 
 The term "office" in the first clause, as to "removal from office," clearly does not relate to a Mem- 
 ber of either House, as it will be seen that the provisions as to impeachment do not apply to them. It 
 would seem that a civil officer guilty of conduct that would justify impeachment ought not to be eligible 
 to a seat in Congress, though unless the clause "office of honor, trust, or profit, under the United States" 
 be held to include a Member, he could not be disqualified thereby. StQl, if a Member is not the sub- 
 ject of impeachment, there is perhaps as much reason in exempting him from the disqualifications of 
 impeachment. 
 
 The other possible exception is in Article I, section 9, paragraph 8: "Xo title of nobility shall 
 be granted by the United States: and no person holding any office of profit or trust under them, shall, 
 without the consent of Congress, accept of any present, emolument, office, or title, of any kind whatever, 
 from any king, prince, or foreign state." 
 
 Standing alone, we might understand the paragraph as broad enough and comprehensive enough 
 to include Members of Congress, but. taken with the other provisions of the Constitution — and they 
 are numerous — wherein the like terms do not embrace or apply to Senators or Representatives in Con- 
 gress, what support can this paragraph possibly afford to those who invoke it as authority for adding 
 anything whatever to the prescribed qualifications of a Representative? 
 
 The clause in Article I, section 6, provides: "And no person holding any office imder the United 
 States shall be a Member of either House during his continuance in office." 
 
 Here it is verj' clear that "any office under the United States" can not include a Member, as other- 
 wise it would be equivalent to a provision that no Member of either House shall be a Member of either 
 House during his continuance in office — an absurdity. A clause in Article II, section 1, provides: 
 "But no Senator or Representative, or person holding an office of trust or profit tmder the United States, 
 shall be appointed an elector." 
 
 Here " Senator or Representative " and "person holding an office of trust or profit under the United 
 States" are used in the alternative, or in contradistinction from each other. If they were one and 
 the same, their separate enumeration was unnecessary. If identical, there would be no occasion to 
 particularize "Senator or Representative." 
 
 If identical, the adjective "other" should have been used, so that the clause should read, "or 
 person holding any other office of trust or profit under the United States." etc. 
 
 These observations apply to the following provisions: 
 
 "The Senators and Representatives before mentioned, and the members of the several State 
 legislatures, and all executive and judicial officers, both of the United States and of the several States, 
 shall be bound by oath or affirmation, etc. (Constitution, Art. VI.) 
 
 "Xo person shall be a Senator or Representative in Congress, or ele<tor of President and Vice- 
 President, or hold any office, civil or militarj', under the United States, or under any State, who having 
 previously taken an oath," etc. (Fourteenth Amendment, sec. 3.) 
 
 Article II, section 4 — "The President, Vice-President, and all civil officers of the United States 
 shall be removed from office on impeachment for, and conviction of, treason, briben.', or other high 
 crimes and misdemeanors" — has been construed by the only tribunal therefor known to the Constitution,
 
 550 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 478 
 
 the Senate sitting as a court of impeachment, which held that a Senator was not a "civil officer," and 
 therefore was not liable to impeachment. It was the case of William Blount, a Senator, who was 
 impeached before the bar of the Senate by the House of Representatives. In his plea he claimed that 
 as a Member of the Senate he was not one of the "ci^al officers of the United States," and on the 11th 
 of February, 1797, the Senate announced its conclusion as follows: 
 
 'The court is of the opinion that the matter alleged in the plea of the defendant is sufficient in 
 law to show that this court ought not to hold jurisdiction of the said impeachment, and that said impeach- 
 ment is dismissed." (Annals of Congress, vol. 8, p. 2319.) 
 
 Story concurs in this view. (Story on the Constitution, sec. 792.) 
 
 Who can be said to hold office " under the United States " was practically decided in United States 
 V. Germaine (99 U. S., 508-512), where the court said: 
 
 "The Constitution for pvu^soses of appointment very clearly divides all its officers into two classes. 
 The primary class requires a nomination by the President and confirmation by the Senate. But fore- 
 seeing that when officers become numerous and sudden removals necessary, this mode might be incon- 
 venient, it was provided that, in regard to officers inferior to those specially mentioned, Congress might 
 by law vest their appointment in the President alone, in the courts of law, or in the heads of departments 
 That all persons who can be said to hold an office under the Government about to be established under 
 the Constitution were intended to be included within one or the other of these modes of appointment 
 there can be but little doubt." 
 
 In United States v. Mouat (124 U. S., 303-308), the Germaine case is cited and approved, the court 
 saying: "In that case it was distinctly pointed out that, under the Constitution of the United States, 
 all its officers were appointed by the President, by and with the consent of the Senate, or by a court 
 of law or the head of a department." 
 
 The same principle is affirmed in United States r. Hendee (124 U. S., 309-315). 
 
 If, then, "all its officers," "under the Constitution," are appointed in the manner above indicated, 
 clearly a Member of either House does not hold an office "under the United States," and the Edmunds 
 Act can not apply. 
 
 (4) Applying the law to the facts the majority of the committee found three 
 distinct grounds of disqualification of Roberts: 
 
 (a) By reason of his violation of the Edmunds Act and the declared policy of 
 disqualification in section 8. 
 
 On this point the majority report holds — 
 
 Let us see in what attitude and status the claimant appears and claims the right to be sworn in. 
 No appreciative opinion as to his status can be formed without some knowledge of the judicial and 
 statutory characterization of his offense. 
 
 Section 5352, passed by Congress in 18G2, declared: "Every person having a husband or wile 
 living who marries another, whether married or single, in a Territory' or other place over which the 
 United States have exclusive jurisdiction, is guilty of bigamy, and shall be punished by a fine of not 
 more than $500, and by imprisonment for a term of not more than five years.' 
 
 It did not, however, make unlawful the practice of polygamous living. There was no pretense of 
 obedience to this law in Utah, the claim being made that it was unconstitutional because an interference 
 with the religion of the Mormons. There is no doubt but that a large body of the Mormons, not only 
 those who practiced polygamy, but those that did not, believed that the act of 1862 was an uncon- 
 stitutional infraction of their rights. 
 
 In 1878, however, in the case of Reynolds v. The United States (98 U. S., 145) the Supreme Court 
 held that section 5352 was "in all respects valid and constitutional." So that after 1878 no man in Utah 
 could claim that the practice of polygamy was right as related to the laws of the land without doing 
 violence, not only to the statute, but to the unanimous opinion of the highest court of the land. 
 
 The opinion in this case was by Chief Justice Waite, and in the course of it polygamy receives 
 judicial characterization as follows (we think it highly important to quote it because it is a judicial 
 declaration and leads us up to a proper recognition of Mr. Roberts's status): 
 
 "Polygamy has always been odious among the northern and western nations of Europe, and, 
 until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic 
 and of African people.
 
 § 478 POLYGAMY AND OTHER CRIMES AS DISQITALIFIOATIONS. 551 
 
 "By the statute of James I the offense was made punishable by death. 
 
 "It is a significant fact that on the 8th of December, 1788, after the passage of the act establishing 
 religious freedom, and after the convention of Virginia had recommended as an amendment to the 
 Constitution of the United States the declaration of the bUl of rights that ' all men have an equal, natural, 
 and unalienable right to the free exercise of religion, according to the dictates of conscience,' the 
 legislature of that State substantially enacted the statute of James I, death penalty included, because 
 as recited in the preamble, 'it hath been doubted whether bigamy and polygamy be punishable by the 
 laws of this Commonwealth.' From that day to this we think it may safely be said there never has 
 been a time in any State of the Union where polygamy has not been an offense against society, cognizable 
 by the civil courts and punishable with more or less severity." 
 
 And continuing the quotation: 
 
 "Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, 
 a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its 
 fruits spring social relations and social obligations and duties, with which government is necessarily 
 required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find 
 the principles on which the government of the people to a greater or less extent rests. Professor Lieber 
 says polygamy leads to the patriarchal principle, and which, when applied to large communities, fetters 
 the people in stationary despotism, while that principle can not long exist in connection with monogamy. 
 CTiancellor Kent observes that this remark is equally striking and profound. 
 
 "Can a man excuse his practices to the contrary because of his religious belief? To permit thia 
 would be to make the professed doctrines of religious belief superior to the law of the land, and in effect 
 to permit every citizen to become a law unto himself. Government could exist only in name under 
 such circumstances." 
 
 So also in Murphy j'. Ramsey (114 U. S., 45). Construing the Edmunds Act, Justice Matthews 
 says: 
 
 "Certainly no legislation can be supposed more wholesome and necet^ary in the founding of a free 
 self-governing commonwealth, fit to take rank as one of the coordinate States of the Union, than that 
 which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the 
 union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that 
 is stable and noble in our civilization; the best guaranty of that reverent morality which is the source 
 of all beneficent progress in social and political improvement. And to this end no means are more 
 directly and immediately suitalile than those provided by this act, which endeavors to withdraw all 
 political influence from those who are practically hostile to its attainment." 
 
 IIow cogent and prophetic are these words. How applicable to this situation; that all political 
 influence ought to be withdrawn from those practically hostile to the establishment of a "Common- 
 wealth on the basis of the idea of the family as consisting in and springing from the union for life of one 
 man and one woman in the holy estate of matrimony." 
 
 There was no machinery for enforcing the act of 1862 until 1882, when Congress passed what is 
 known as the Edmunds law. This act defined and punished bigamy and polygamy in the same terms as 
 the act of 1862, but also punished unlawful cohabitation, and declared ineligible for office any person 
 who maintained the status of a polygamist or who cohabited with more than one woman. 
 
 Section 8 of that act is as follows: "That no polygamist, bigamist, or any person cohabiting with 
 more than one woman, and no woman cohabiting with any of the persons described as aforesaid in this 
 section, in any Territory or other place over which the United States have exclusive jurisdiction, shall 
 be entitled to vote at any election held in any such Territorj^ or other place, or be eligible for election 
 or appointment to, or be entitled to hold, any office or place of public trust, honor, or emolument in, 
 under, or for such Territory or place, or under the United States." 
 
 This law had not only the force of a public law, but it was the outcome of years of agitation and 
 reflection. It crystallized thesobersenseof the American people; it represented thesettled views of our 
 wisest and most conservative statesmen, and later received the stamp of approval from the Supreme 
 Coiut of the United States in many well-considered cases. 
 
 Prior to 1882 Brigham H. Roberts had married one Louisa Smith. She has borne him six children, 
 and is still living. 
 
 About 1885, when Utah was fairly ringing with the blows of the Edmunds Act of 1882; while 
 numerous prosecutions were going on and after the Supreme Court had passed upon the validity of the
 
 552 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 478 
 
 act; when the American people supposed that polygamy had received its deathblow; when no man of 
 the many whose cases went to the United States Supreme Court pretended that the provisions against 
 polygamous marriages were invalid, with all these facts insistently before him, Brigham H. Roberts took 
 another wife — his first polygamous wife — Celia Dibble by name, who in the following twelve years, bore 
 him six children. 
 
 This second wife he married in defiance of the Edmunds law. He spat upon that law; he declared 
 by his act that he recognized no binding rule upon him of a law of Congress; he declared by it that he 
 recognized a higher law. The Congress of the United States was to him an object of contempt. The 
 Supreme Court of the United States might declare the law for others, but not for him. He laughed at its 
 futile decrees and spumed its admonitions. The Executive which had declared in solemn messages its 
 gratification that polygamy seemed gone forever he defied and despised. Of what consequence to him 
 were laws of Congress and declarations of the highest court and proclamations of Presidents as against his 
 sensual interpretation of a sensual doctrine? 
 
 And all the time the Edmunds law declared not only polygamy but cohabitation with more than 
 one woman unlawful. Roberts not only bigamously married a second wife, but he persisted in violating 
 and defiantly trampling under foot every other provision of the act. 
 
 But he had not yet sufficiently proclaimed his utter contempt for the Supreme Court, for Congress 
 and its most solemn enactments. A few years later he. took a third wife. 
 
 From the time of his second marriage to the third he cohabited with two women. From the date of 
 his third marriage down to his election, and, we doubt not, to the present time, he haa been cohabiting 
 with three women. 
 
 As recently as December 6, 1899, he defined his position as follows: 
 
 "These women have stood by me. They are good and true women. The law has said I shall part 
 from them. My church has bowed to the command of Congress and relinquished the practice of plural 
 marriage. But the law can not free me from obligations assumed before it spoke. No power can do that. 
 Even were the church that sanctioned these marriages and performed the ceremonies to turn its back 
 upon us and say the marriages are not valid now, and that I must give these good and loyal women up, 
 I'll be damned if I would." 
 
 In this statement he adheres to the audacious assumption that the law of 1882 did not speak to him 
 and that he did not recognize it as a rule of conduct to him. 
 
 The amnesty proclamation of 1893 and 1894 never embraced him. There was never a moment 
 when its provisions were complied with by him. There has never been a moment since he married Celia 
 Dibble down to the present moment when he has not been a persistent, notorious, defiant, demoralizing, 
 audacious violator of every provision of the State and Federal law relating to polygamy and its attendant 
 crimes. And this is the man who seeks admission to this body. 
 
 It was declared in the Kentucky cases, and in the Thomas case in the Senate, and in the Test Oath 
 Act of 1862 that disloyalty created ineligibility; that fidelity to the Constitution was a necessary quali- 
 fication to membership in this body. What is loyalty? It is faithfulness to the sovereign or the lawful 
 government. A mere violator of the law may not necessarily be disloyal. One may violate the law 
 and still recognize the sovereign and the lawfulness of the government. His only concern may be that 
 he shall not be found out and punished. But that man is surely disloyal, and in the fullest sense disloyal, 
 when by his words, his acts, and his persistent practices he declares unequivocally in this wise: "You 
 have solemnly enacted certain laws; you have crystallized into statute the will of the sovereign people. 
 I bid defiance to your law. I will not recognize it. I here and now before your very eyes do the things 
 you say I shall not do. I recognize a higher law than your man-made law — no law of yours can relieve 
 me from the obligations which I thus take in defiance of your enactments. The only thing I promise 
 not to do is to take a fourth wife." 
 
 The case of a bribe taker, or of a burglar, or of a mui'derer is trivial, is a mere ripple on the surface 
 of things, compared with this far-reaching, deep-rooted, audacious lawlessness. 
 
 What was the case of Whittemore, who was excluded, as hereafter set out? He had not been 
 convicted of any crime, but a committee had found that he had sold a cadetship. He did not pretend 
 that he was wiser or greater than the people, or that he had the right to sell cadetships and was above 
 the law. The acts of Roberts are essentially disloyal. They deny the sovereign; they repudiate the 
 lawful government. Look at them from whatever point you will, they are subversive of government. 
 They do not merely breed anarchy, they are anarchy.
 
 § 478 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 553 
 
 We observe that this is not a moral question. It goes to the root of our own constitutional govern- 
 ment. What we have just quoted from Justice Waite and Justice Matthews are as much a part of our 
 
 Constitution as the written instnunent itself. 
 
 * * * * * * * 
 
 Having in mind that portion of this report in which we have heretofore set out the status and 
 condition of Brigham H. Roberts, we would inquire where the specific provisions of the Edmunds Act 
 place him. 
 
 Two facts appear as pertinent to this inquiry: 
 
 First. That he was convicted in 1889 of unlawful cohabitation under that act, and served a term 
 in the penitentiarj' therfeor. 
 
 Second. That he has been ever since 1885, and is now, a polygamist, as that word is used in section 
 8 of the Edmunds Act and defined by the Supreme Court of the United States in the cases of Murphy v. 
 Ramsey (114 U. S., 15) and Cannon v. The United States (116 U. S., 55). Section 8 is as follows: 
 
 "Xo polygamist, bigamist, or any person cohabiting with more than one woman, and no woman 
 cohabiting with any of the persons described as aforesaid in this section in any Territory or other place 
 over which the United States have exclusive jurisdiction, shall be entitled to vote at any election held 
 in any such Territory or other place, or be eligible for election or appointment to, or be entitled to hold, 
 any office or place of public trust, honor, or emolument in, under, or for any such Territory or place, 
 or under the United States." 
 
 Reading that act as applicable to this case, eliminating the irrelevant portions, it appears as follows: 
 "No polygamist shall be entitled to hold any office or place of public trust, honor, or emolument under 
 the United States." 
 
 In the Ramsey case, above referred to, a specific distinction is made between a polygamist and a 
 person cohabiting with more than one woman. A polygamist is a person having a certain status respect- 
 ing more than one woman. The condition, therefore, of a polygamist may be merely passive and requir- 
 ing no affirmative act. To cohabit with more than one woman is, however, to do an affirmative thing. 
 The result is that one who has two or more wives that he holds out to the world as such is a polygamist, 
 wherever he may be, while one who cohabits with more than one woman is not cohabiting except in 
 the place in which, of necessity, cohabitation must occur. 
 
 In the Ramsey case the court illustrated its definition of a polygamist as being a status or condi- 
 tion like any other qualification for elector, or for office, and declared that it was as if Congress had 
 undertaken to make a married man ineligible. It would be the status in that event of being a mar- 
 ried man which would create and continue the ineligibility. 
 
 It therefore appears that the fact that a man is a polygamist is a fact that inheres in him and stays 
 with him, and persists in remaining with him wherever he may go, so long as he is the possessor of more 
 than one wife; and just as one who is a married man in the State of Maryland continues to be a mar- 
 ried man if he leaves his wife at home and comes to the District of Columbia, so Mr. Roberts, being 
 in the condition or status of a polygamist in the State of Utah, does not leave that status behind, nor 
 does he dissociate himself from that status or cast off the garb of a polygamist by leaving his wives at 
 home and traveling from that State into the District of Columbia. 
 
 In the very nature of things the House of Representatives, wherever it is as a House of Represent- 
 atives, is in a place under the exclusive jurisdiction of the United States; therefore when Roberts 
 comes into the District of Columbia, in the status of a polygamist, he is ineligible under the Edmunds 
 Act to hold any office or place under the United States, and therefore ineligible to hold the position 
 of Member of the House of Representatives. 
 
 The minority, in their views, say that if the propositions of law already laid 
 down by them are not conclusive, then — 
 
 it seems to us very clear that no ineligibility can be predicated upon section 8 of the Edmunds Act, 
 upon the facts as they must be conceded to exist. A brief statement of the history of the legislation 
 involved may be useftil. 
 
 The Edmunds Act became a law March 22, 1882. Section 1 amended section 5352 of the Revised 
 Statutes of the United States, and defined and prohibited polygamy. Section 3 defined and prohib- 
 ited unlawful cohabitation, and reads as follows: 
 
 "Sec. 3. That if any male person, in a Territorj' or other place over which the United States have
 
 554 
 
 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 §478 
 
 exclusive jurisdiction, hereafter cohabits with more than one woman, he shall be deemed guilty of a 
 misdemeanor, and on conviction thereof shall be punished by a fine of not more than three hundred 
 dollars, or by imprisonment for not more than six months, or by both said punishments, in the dis- 
 cretion of the court." 
 
 Section 8, relating to eligibility to hold office, has already been quoted. 
 
 The Edmunds-Tucker Act, which became a law March 3, 1887, supplemented the Edmunds law, 
 imposed penalties for various kindred offenses, dissolved the corporation known as the Church of Jesus 
 Christ of Latter-Day Saints, and contained, among other things, various provisions as to dower and 
 the law of descent. With reference to eligibility to office it contained, among others, this paragraph, 
 in the last part of section 24: 
 
 "No person who shall have been convicted of any crime imder this act, or under the act of Con- 
 gress aforesaid, approved March twenty-second, eighteen hundred and eighty-two, or who shall be a 
 polygamist, or who shall associate or cohabit polygamously with persons of the other sex, shall be entitled 
 to vote in any election in said Territory, or be capable of jury service, or hold any office or emolument 
 in said Territory." 
 
 It will be noticed that this act applied only to "office or emolument in said Territory." It did 
 not go as far as the similar provision in the Edmunds Act and apply to "any office under the United 
 States. ' ' 
 
 February 4, 1892, Chapter VII of the laws of the Territory of Utah was enacted. Section 1 defined 
 and punished polygamy substantially as did section 1 of the Edmunds Act. Section 2, relating to 
 cohabitation, in all material parts is an exact transcript of section 3 of the Edmunds Act. There is 
 no provision whatever in this act relating to ineligibility to office by reason of any of these offenses. 
 (Laws of Utah, 1892, p. 5.) 
 
 The enabling act, authorizing the people of Utah to form a constitution and State government and 
 to be admitted into the Union, became a law July 16, 1894. This act required the convention to provide 
 by ordinance irrevocable without the consent of the United States and the people of the State — 
 
 "First. That perfect toleration of religious sentiment shall be secured, and that no inliabitant of 
 said State shall ever be molested in person or property on account of his or her mode of religious worship: 
 Provided, That polygamous or plural marriages are forever prohibited." 
 
 The constitution of Utah was adopted by the convention May 8, 1895, by the people November 5, 
 1895, and the proclamation of the President of the United States announcing the result of the election 
 and admitting the State into the Union was issued January 4, 1896. Article III, ordinance of the 
 constitution, contained the provision as to religious liberty and polygamous or plural marriages in 
 the exact language of the enabling act. (R. S. Utah, 1898, p. 40.) 
 
 Article XXIV, section 2, of the constitution reads as follows: 
 
 "Sec. 2. All laws of the Territory of Utah now in force, not repugnant to this constitution, shall 
 remain in force until they expire by their own limitations or are altered or repealed by the legislature. 
 The act of the governor and the legislative assembly of the Territory of Utah entitled 'An act to punish 
 polygamy and other kindred offenses,' approved February 4, A. D. 1892, in so far as the same defines 
 and imposes penalties for polygamy, is hereby declared to be in force in the State of Utah." (R. S. 
 Utah, 1898, p. 67.) 
 
 This did not give the State of Utah any law making persons ineligible to any office by reason of 
 polygamy or cohabitation, as no such provisions existed in the act of 1892, chapter 24, or in any of the 
 "laws of the Territory of Utah." 
 
 Sections 4208 to 4216, inclusive, of the Revised Statutes of Utah (R. S. Utah, 1898, p. 899) are 
 substantially the act of 1892. Section 2 of the act of 1892 and section 4209 of the Revised Statutes, 
 relating to unlawful cohabitation, are precisely alike. This statute has not been changed. 
 
 The laws of the State of Utah, then, do not now impose and never have imposed any disqualification 
 for holding office by reason of polygamy or unlawful cohabitation. Mr. Roberts was a resident of the 
 Territory of Utah, and since its organization as a State has been a resident of the Stale of Utah. Under 
 these circumstances we do not think that the disqualifications imposed by the Edmunds Act have had 
 any operation as to him since the organization of the State of Utah. It is settled by an unbroken line of 
 decisions that all Territorial Congressional legislation is superseded by the adoption of a State constitution 
 and the organization of a State.
 
 § 478 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 555 
 
 In discussing the effect of the adoption of the constitution of Louisiana upon the laws of Congress, 
 the court, in Permoli r. First Municipality (3 How., 610), said: 
 
 "So far as they conferred political rights, and secured civil and religious liberties (which are 
 political rights), the laws of Congress were all superseded by the State constitution; nor is any part of 
 them in force unless they were adopted by the constitution of Ixiuisiana as the laws of the State." 
 
 The case of Strader et al. v. Graham (10 How., 94) determines the same question, and says: 
 
 "The argument assumes that the six articles which that ordinance declares to be perpetual are still 
 in force in the State since formed within the Territory and admitted into the Union. If this proposition 
 could be maintained, it would not alter the question; for the regulation of Congress, under the old 
 confederation or the present Constitution, for the government of a particular territory, could have no 
 force beyond its limits. It certainly could not restrict the power of the States within their respective 
 territories, nor in any manner interfere with their laws and institutions, nor give this court any 
 control over them. The ordinance in question, if still in force, could have no more operation than the 
 laws of Ohio in the State of Kentucky, and could not influence the decision upon the rights of the master 
 or the slaves in that State, nor give this court jurisdiction upon the subject. 
 
 " But it has been settled by judicial decision in this court, that this ordinance is not in force. 
 
 "The case of Permoli r. The First Municipality (3 How., 589) depended upon the same principles 
 with the case before us." 
 
 The same doctrine is held in Pollard et al. v. Hagan (3 How., 212). 
 
 It is approved by all of the court, from Chief Justice Taney to Judge Curtis, in Dred Scott v. 
 Sandford (19 How., 490). 
 
 It is approved in Woodman v. Kilboume Manufacturing Company (1 Abb. U. S., 162), opinion by 
 Justice Miller, of the United States Supreme Court. Columbus Insiuance Company v. Curtenius (6 
 McLean, 212). 
 
 This precise question, in the application to the State of Utah of a law of Congress which was not 
 continued in force by any legislation, has been determined in Moore v. United States (85 Fed. Rep., 468). 
 
 The court were determining whether a law of Congress against unlawful combinations was in force 
 in Utah, and held: 
 
 "By its terms the provision of the statute under which this indictment was found applies only 
 to the Territories of the United States, and while it may yet be in full force within the Territories, it is 
 clear that no prosecution could be maintained under it for entering into a combination or conspiracy in 
 restraint of trade in Utah after the date of her admission as a State. * * * When Utah became one of 
 the States of the Union, this statute ceased to be in force within its boundaries, unless, by appropriate 
 legislation it was continued in force for the purpose of prosecuting violations thereof committed 
 during the existence of a Territorial form of government. * * * The act of July 2 was not repealed 
 by the enabling act, for it yet applies to the Territories of the United States. It ceased to be in 
 force in Utah only because it was superseded by the constitution upon the admission of the State." 
 
 We have seen that there was no legislation of any kind continuing in force section 8 of the Edmunds 
 Act, relating to disqualification. It is to be observed that this section does not undertake by its terms 
 to operate within the limits of any State. It is expressly confined in its operation, by its terms, to "any 
 Territory or other place over which the United States have exclusive jurisdiction." The meaning of 
 the terms "polygamist" or "person cohabiting," with reference to the restriction as to voting, has been 
 fully settled by the United States Supreme Court in Murphy v. Ramsey. (114 U. S., 39; 29 L. C. P., 47.) 
 
 This was an action for damages sustained by reason of being deprived, under this section, of the 
 right to vote in the Territory of Utah, and among other things the court held: 
 
 "The requirements of the eighth section of the act, in reference to a woman claiming the right to 
 vote, are that she does not, at the time she offers to register, cohabit with a polygamist, bigamist, or 
 person cohabiting with more than one woman. * * * Upon this construction the statute is not open 
 to the objection that it is an ex post facto law. It does not seek in this section and by the penalty of 
 disfranchisement to operate as a punishment upon any offense at all. * * * The disfranchisement 
 operates upon the existing state and condition of the person, and not upon a past offense. It is, 
 therefore, not retrospective. He alone is deprived of his vote who, when he offers to register, is 
 then in the state and condition of a bigamist or a polygamist, or is then actually cohabiting with more 
 than one woman. * * * So that, in respect to those disqualifications of a voter imder the act of
 
 556 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 478 
 
 March 22, 1882, the objection is not well taken that represents the inquiry into the fact by the 
 officers of registration as an unlawful mode of prosecution for crime. 
 
 "In respect to the fact of actual cohabitation with more than one woman, the objection is equally 
 groundless, for the inquiry into the fact, so far as the registration officers are authorized to make it, or 
 the judges of election, on challenge of the right of the voter if registered, are required to determine it, 
 is not, in view of its character as a crime, nor for the purpose of punishment, but for the sole purpose of 
 determining, as in case of every other condition attached to the right of suffrage, the qualification of one 
 who alleges his right to vote. It is precisely similar to an inquiry into the fact of nativity, of age, or of 
 any other status necessary by law as a condition of the elective franchise." 
 
 The principles which apply to eligibility as a voter must apply to eligibility to office, as they are 
 in the same section and the same language is employed as to each, and in order to be affected by the 
 disqualification prescribed by this section a peraon must be a polygamist or unlawfully cohabiting 
 within the meaning of the section "at the time" of entering upon the office. It is not enough to show 
 that at some former period Mr. Roberts was a polygamist or unlawfully cohabiting, as the disfranchise- 
 ment does not operate "upon a past offense." It would have been entirely competent for Roberts to 
 have taken himself from under the operation of this section while Utah was still a Territory, simply 
 by ceasing to be a polygamist or cohabiting, or by moving into a State, as the "disfranchisement" 
 operates upon " the existing state and condition of the person" only. In other words, the offense must 
 be continuous. The offense and the disqualification are coterminous. 
 
 There is a further legal proposition, too well settled to require the citation of authority, and that 
 is, no statute can operate, either directly or indirectly, extraterritorially. The statute in question doea 
 not undertake to. 
 
 The offense of polygamy and unlawfully cohabiting is localized by the statute. The provision is 
 not general. No polygamist or person thus cohabiting "anywhere, without any restriction as to place," 
 is not the language; on the other hand, the prohibition is confined to a specified locality. No polygamist 
 or any person thus cohabiting — where? "In any Territory or other place over which the United States 
 have exclusive jurisdiction." The United States had no power to make the prohibition apply to any 
 other place, and did not attempt it. The offense and the place defined must coexist. He must be a 
 polygamist or person unlawfully cohabiting in "any Territory," or the statute does not apply. The 
 statute applies only to residents of the Territory. 
 
 In the light of these propositions let us analyze the case as it is. 
 
 Mr. Roberts presents himself as a Member-elect of this House. It is objected that he is disqualified 
 under this section as a polygamist or person unlawfully cohabiting. The disqualification must exist at 
 the time of his becoming a Member. But since January, 1896, he has resided in the State of Utah, and 
 this statute has not since then operated upon him, and does not now operate upon him. It can not, 
 therefore, now disqualify him. The conditions of offense and place required by the statute to coexist 
 do not coexist in his case, and therefore the statute does not apply. In other words, it is said he is 
 ineligible. Why? Because there is a statute of the United States which says that no polygamist or 
 person unlawfully cohabiting in "any Territory" is eligible, and he is a polygamist or person thus 
 cohabiting. It is a complete answer to say ," while I am a polygamist I am not such in 'any Territory.'" 
 
 \Miile the penal provisions of the Edmunds Act are in full force in "any Territory," it would not 
 for a moment be contended that Mr. Roberts would be liable to prosecution thereunder since January, 
 1896. Why? Simply because since that time he has committed no crime within "any Territory," as all 
 of his acts have been in the State of Utah. A fortiori, the disqualifying provisions do not apply to him, 
 as they do not even "operate as a punishment upon any offense at all." The moment Utah became a 
 State he, living in Utah, became a resident of the State, and one of the indispensable elements of the 
 condition to which the disqualification attaches — residence within "any Territory" — ceased to exist, 
 and the disqualification ceased to apply. The offense of polygamy or unlawful cohabitation in "any 
 Territory" and the disqualification were no longer coterminous. He is now doing no act in "any Terri- 
 tory" to which the disqualification applies, and therefore, as to him, it does not exist. 
 
 It is true that while Utah was a Territory Roberts was unlawfully cohabiting, and the disqualifica- 
 tion existed, and his status was then that of ineligibility, and therefore, it may be suggested, it continues. 
 But this would make the disqualification the result of a past offense, and the law says that it "operates 
 upon the existing state and condition of the person and not upon a past offense." It does not "operate 
 as a punishment" at all. all of which it clearly would do if the supposition were correct.
 
 §479 
 
 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 557 
 
 If the disqualification attaches to Roberts by reason of acts committed in Utah, the State, then 
 the act would be operating extraterritorily, outside of "any Territory" to which by its specific terms it 
 is expressly confined. The fact that Roberts still resides in the same place where he resided in 1895, 
 though Utah is now a State, but then was a Territory to which the law applied, undoubtedly is the cause 
 of some confusion of thought. It is clear that his legal rights are precisely the same as though since 1896 
 he had been residing in Maine, and had been elected to Congress from that State. It would not be con- 
 tended that this act could have any application to him in such case to affect his present status, as it 
 never operated there. No more has it in Utah since Januarj-, 1896. 
 
 It seems to us beyond question that this act does not now apply to Mr. Roberts. Then there is no 
 law having any application to this case by which the attempt is made to add anything to the consti- 
 tutional qualifications. This House, by its independent action, can not make law for any purpose. 
 The adding by this House, acting alone, of a qualification not established by law would not only be a 
 violation of both the Constitution and the law, but it would establish a most dangerous precedent, 
 which could hardly fail to "return to plague the inventor." You might feel that the grave moral and 
 social aspects of this case allowed you to — 
 
 "Wrest once the law to your authority 
 To do a great right, do a little wrong.'' 
 
 But what warrant have you, when the barriers of the Constitution are once broken down, that there 
 may not come after us a House with other standards of morality and propriety, which will create other 
 qualifications with no rightful foundations, that, in the heat and unreason of partisan contest — since 
 there will be no definite standard by which to determine the existence of qualifications — will add any- 
 thing that may be necessary to accomplish the desired result? Exigency will determine the sufficiency. 
 It would no longer be a government of laws, but of men. To thus depart from the Constitution and 
 substitute force for law is to embark upon a trackless sea. without chart or compass, with almost a cer- 
 tainty of direful shipwreck. 
 
 479. The case of Brigham H. Roberts, continued. 
 
 The question of loyalty as a qualification of a Member. 
 
 (6) By reason of disloyalty thus described by the majority report — 
 
 He is disqualified because for years he has been living in open, flagrant, and notorious defiance 
 of the statutes of Utah and in open, flagrant, and notorious defiance of the statutes of Congress — of the 
 very body which he now seeks to enter; in defiance of the law as declared by the Supreme Court of the 
 United States, and in defiance of the proclamations of Presidents Harrison and Cleveland. He has 
 persistently held himself above the law. This is disloyalty in its very essence. In the language of 
 Chief Justice Waite, in the Reynolds case, this would in effect "permit every citizen to become a law 
 unto himself. Government could exist only in name under such circumstances." 
 
 The majority say on this point: 
 
 The principles underlying the second main ground of disqualification, hereinbefore asserted, 
 have already been fully discussed, but the ground is appropriately restated at this point. 
 
 We assert before the House, the countrj-, and history that it is absolutely and impregnably sound, 
 not to be eSectively attacked, consonant with every legislative precedent, in harmony with the law 
 and with the text-books on the subject: 
 
 That Brigham H. Roberts's persistent, notorious, and defiant \'iolation of one of the most solemn 
 acts ever passed by Congress, by the very body which he seeks now to enter, on the theorj' that he is 
 above the law, and his defiant violation of the laws of his own State, necessarily render him ineligible, 
 disqualified, unfit, and unworthy to be a member of the Hoiise of Representatives. And this proposi- 
 tion is asserted not so much for reasons personal to the membership of the House as because it goes to 
 the ver\- integrity of the House and the Republic as such. 
 
 The minorit}" do not specifically refer to this point, but discuss it generallv in 
 their treatment of the subject of qualifications.
 
 558 
 
 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 § 480 
 
 480. The case of Brigham H. Roberts, continued. 
 
 A constituency having violated the understanding on which it came 
 into the Union, was the status of a Member-elect thereby affected? 
 (f) Because, in the words of the majority report — 
 
 His election as Representative is an explicit and most offensive violation of the understanding 
 by which Utah was admitted as a State. It is an act of unmatched audacity, the possibility of which 
 could no more have been considered when the State of Utah was admitted than that a specific permis- 
 sion would have been given to renew the practice of polygamous marriages. 
 
 The majority say on this point: 
 
 Utah was admitted to the Union with the distinct understanding upon both sides that polygamous 
 practices were under the ban of the church, prohibited and practically eradicated, both as a practice 
 and a belief, and that they would not be renewed. 
 
 The effort is made to alarm people upon this proposition that some similar objection might be 
 made to representation from States in which the claim might be made that the right to vote was denied 
 to some citizens. It is a sufficient answer to this to say that if such ground of complaint exists the Con- 
 stitution specifically tells us what our remedy is, and declares precisely in the fourteenth amendment 
 what we may do in any event when the right of suffrage is improperly denied. There is no possible 
 escape from that position, even assuming that there was anj^hing in the bogie man. 
 
 But as to Utah, she was admitted on the express statement that the practice of polygamoiis living 
 was interdicted by the church, was practically abandoned by the people and eradicated as a belief. 
 Of course, that sporadic instances of the violation of the law against cohabitation might occur no one 
 doubted. 
 
 The manifesto forbidding plural marriages and enjoining obedience to the laws relating thereto 
 was issued by Wilford Woodruff, president of the Church of Jesus Christ of Latter-Day Saints, Septem- 
 ber 25, 1890. 
 
 Some doubt having arisen as to whether that manifesto prohibited association in the plural mar- 
 riage relation, as well as the contracting of plural marriages as a ceremony. President Woodruff himself 
 testified under oath as follows: 
 
 "Q. Did you intend to confine this declaration and advice to the church solely to the question of 
 forming new marriages without reference to those that were existing — plural marriages? — A. The inten- 
 tion of the proclamation was to obey the law myself — all the laws of the land on that subject — and 
 expecting that the church would do the same. 
 
 "Q. You mean to include, then, in your general statement the laws forbidding association in 
 plural marriages as well as the forming of new marriages? — A. Whatever there is in the law with regard 
 to that — the law of the land. 
 
 "Q. Let me read the language and you will understand me, perhaps, better: 'Inasmuch as 
 laws have been enacted by Congress forbidding plural marriages, * * * I hereby declare,' etc. 
 Did you intend by that general statement of intention to make the application to existing conditions 
 where the plural marriages already existed? — A. Yes, sir. 
 
 "Q. As to living in the state of plural marriage? — A. Yes, sir; that is, to the obeying of the law. 
 
 "Q. In the concluding portion of your statement you say, 'I now publicly declare that my advice 
 to the Latter-Day Saints is to refrain from contracting any marriage forbidden by the laws of the land.' 
 Do you understand that that language was to be expanded to include the further statement of living 
 or associating in plural marriage by those already in the status? — A. Yes, sir; I intended the procla- 
 mation to cover the ground — to keep the laws, to obey the law myself — and expected the people to 
 obey the law." 
 
 The significance of this statement by the spiritual head of the church is the more apparent when 
 we remember that it was made but a short time before the question of tlie admission of Utah was 
 debated in the House of Representatives. 
 
 Is it to be an occasion for wonder, therefore, that the proclamation of amnesty issued by Presi- 
 dent Harrison January 4, 1893, should contain these words: 
 
 ■'Whereas it is represented that since the date of said declaration the members and adherents of
 
 § 480 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 559 
 
 said church have generally obeyed said laws and abstained from plural marriages and polygamous 
 cohabitation; and 
 
 ■■\Miereas by a petition dated December the 19th, 1891, the officials of said church, pledging the 
 membership thereof to the faithful obeyance of the laws against plural marriages and unlawful cohabita- 
 tion, applied to me to grant amnesty for past offenses against said laws." 
 
 Is it strange that the House Committee on Territories in 1893 should report that ''polygamy is 
 dead? " And if that is not fully convincing, let the unprejudiced mind consider the following extracts 
 from the debate in the House of Representatives on the admission of Utah, December 12, 1893: (Here 
 the report quotes the debate at length.) 
 
 And so the enabling act was passed. Everj- incredulous Member who cast doubt upon the sincerity 
 of polygamists in Utah was whistled down the wind. Everj' legislator who doubted if the funeral of 
 polygamy had really taken place, was laughed to scorn. Polygamy was dead! That was the battle cry, 
 and on it the battle was fought and won. 
 
 What would have become of the bill if ilr. Rawlins had declared that the State of Utah, just about 
 to be bom, would resers-e the right to send a polygamist to Congress? His bill would have been buried 
 beneath an avalanche of votes beyond the hope of resurrection. 
 
 The language of the enabling act is, "provided that polygamous or plural marriages are forever 
 prohibited." 
 
 The understanding was that those words prohibited the practice of li\'ing in the status or condition 
 of polygamous marriage. 
 
 Bouvier's Law Dictionary says: 
 
 '^Marriage. — A contract made in due lorm of law by which a man and woman reciprocally engage to 
 live with each other during their joint lives, and to discharge toward each other the duties imposed by 
 law on the relation of husband and wife. Marriage, as distinguished from the agreement to marry, the 
 mere act of becoming married, is the civil status of one man and one woman united in law for life, for the 
 discharge to each other and the community of the duties legally incumbent on themselves. 
 
 ' ' ' Marriage ' is the legal status or condition of husbands and wives just as infancy is the legal relation 
 or condition of persons under age. (1 American and English Encyclopedia of Law, vol. 14, p. 470.) 
 
 "The act of marriage having been once accomplished, the word becomes afterwards to denote the 
 relation itself. (Schouler on Domestic Relations, 22.) 
 
 "Marriage is the civil status of one man and one woman united in law for life under the obligation to 
 discharge to each other and to the community those duties which the community, by its laws, holds 
 incumbent on persons whose association is founded on the distinction of sex. (1 Bishop on Marriage and 
 Divorce, 3.) 
 
 "Marriage is a personal relation arising out of a civil contract to which the consent of parties capable 
 of making it is necessarj'. (Hart's California Civil Code, 55.) 
 
 "Marriage is the union of one man and one woman so long as they shall both live together to the 
 exclusion of all others by an obligation which during the lifetime the parties can not of their own volition 
 or will dissolve, but which can be dissolved only by the authority of the State." (19 Indiana, p. 57.) 
 
 Senator Rawlins was asked before this committee the following question: 
 
 "Without reference to any assumed facts in this case, do you think that Congress would have 
 admitted Utah to statehood if it had been predicted that Utah would send here in a few years a man as 
 her Representative who was polygamously living with more than one wife? " 
 
 He answered: " I do not think the Congress of the United States would have admitted Utah if they 
 at that time had believed that a revival of the practice of polygamy would occur." 
 
 It is not to be assumed from the fact that a rare or sporadic case of polygamous marriage occurred 
 in Utah, or sporadic instances of unlawful cohabitation had come to light, that that would be a violation 
 of the agreement; but we take it that it is in the last degree a violation of the agreement or understanding 
 when that State sends to Congress a man who is himself engaged in the persistent practice of the verj' 
 thing the abandonment of which was the condition precedent to its admission; and that man the most 
 conspicuous defier of the law and violator of the covenant of statehood to be found in Utah. 
 
 As bearing on this, we here quote the manifesto issued a few days ago by the Mormon Church and 
 presented by Senator Rawlins to the Senate: 
 
 " In accordance with the manifesto of the late President Wilford Woodruff, dated September the 
 2-5th, 1890, which was presented to and unanimously accepted by our general conference on the 6th of
 
 560 
 
 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 § 480 
 
 October, 1890, the church has positively abandoned the practice of polygamy, or the solemnization of 
 plural marriages, in this and every other State, and that no member or officer thereof has any authority 
 whatever to perform a plural marriage or enter into such a relation. Nor does the church advise or 
 encourage unlawful cohabitation on the part of any of its members." 
 
 In other words, the Mormon Church has left it to us and not to the church to say what shall be 
 done with Mr. Roberts. Is the House of Representatives to respond in any uncertain tone? 
 
 The minority, in their views, say: 
 
 It is contended that if aU other reasons assigned for exclusion are found to be insufficient, as we 
 believe they are, still Mr. Roberts should be excluded, upon the alleged ground that, by virtue of the 
 enabling act, a compact now exists between tlie United States and Utah which has been violated by the 
 election of Roberts to Congress, and that the State can be in this manner punished for such breach of 
 the compact. Compact is synonymous with contract. The idea of a compact or contract is not predi- 
 cable upon the relations that exist between the State and the General Government. They do not stand 
 in the position of contracting parties. The condition upon which Utah was to become a State was 
 fully performed when she became a State. The enabling act authorized the President to determine 
 when the condition was performed. He discharged that duty, found that the condition was complied 
 with; and that condition no longer exists. 
 
 What did Congress require by the enabling act? Simply that "said convention shall provide 
 by ordinance irrevocable," etc., and the convention did in terms what it was required to do. It was 
 a condition upon the performance of which by the "convention" the admission of Utah depended. 
 Its purpose accomplished, its office is gone, and as a condition it ceases to exist. No power was reserved 
 in the enabling act, nor can any be found in the Constitution of the United States, authorizing Con- 
 gress, not to say the House of Representatives alone, to discipline the people or the State of Utah, 
 because the crime of polygamy or unlawful cohabitation has not been exterminated in Utah. Where 
 is the warrant to be found for the exercise of this disciplinary, supervisory power? This theory is 
 apparently evolved for the purposes of this case; is entirely without precedent; and has not even the 
 conjecture or dream of any writer or commentator on the Constitution to stand upon. 
 
 In accordance with the facts and arguments as set forth in their report the 
 
 majority recommended the following: 
 
 Resolved, That under the facts and circumstances of this case, Brigham H. Roberts, Representative- 
 elect from the State of Utah, ought not to have or hold a seat in the House of Representatives, and that 
 the seat to which he was elected is hereby declared vacant. 
 
 The minority proposed as a substitute the following: 
 
 Resolved, That Brigham H. Roberts, having been duly elected a Representative in the Fifty-sixth 
 Congress from the State of Utah, with the qualifications requisite for admission to the House as such, 
 is entitled, as a constitutional right, to take the oath of office prescribed for Members-elect, his status 
 as a polygamist, unlawfully cohabiting with plural wives, affording constitutional ground for expulsion, 
 but not for exclusion from the House. 
 
 The resolutions were called up in the House on January 23, 1900,' and debated 
 until January 25, when the question was taken on substituting the minority for 
 the majority resolutions, and resulted — yeas 81, nays 244. The question then 
 recurring on the adoption of the majority resolution, there were — yeas 268, nays 50. 
 So the majority resolution was agreed to unamended.^ 
 
 During the debate, on January 23,' Mr. Roberts was permitted, by unanimous 
 consent, to address the House. 
 
 > First session Fifty-sixth Congress, Record, pp. 1072-1104, 1123-1149, 1175-1217; Journal, pp. 187, 
 192, 196-198. 
 
 2 Mr. John F. Lacey, of Iowa, had proposed an amendment for expelling Mr. Roberts without 
 swearing him in; but it was ruled out on a point of order as not germane. First session Fifty-sixth 
 Congress, Record, pp. 1215, 1210; Journal, p. 196. 
 
 3 Record, p. 1101.
 
 § 481 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 561 
 
 481. The Senate case relating to the qualifications of Reed Smoot, 
 of Utah, in the Fifty-eighth Congress. 
 
 Although it was understood that objection was made to a Senator-elect 
 on the question of qualification, yet the oath was administered on his 
 prima facie showing. 
 
 Form of resolution authorizing the investigation of the right and title 
 of Keed Smoot to a seat in the Senate. 
 
 It was objected that Senator Smoot, by reason of fealty to a " higher 
 law^ " than the law of the nation, was disqualified to hold a seat in the 
 Senate. 
 
 Argument that expulsion applies only to acts of a Senator or Member 
 done by him while in such office or in relation to his functions as such 
 officer. 
 
 Contention that a Senator may be excluded for disqualification by 
 majority vote, even though he may have been sworn in. 
 
 Discussion as to the right of the Senate to exclude by majority vote 
 for lack of qualifications other than those enumerated in the Constitution. 
 
 Complaint in the Smoot investigation that the rules of evidence were 
 not adhered to by the Senate committee. 
 
 On March 5, 1903,' at the special session of the Senate, and before the newly 
 elected Senators had been called for the administration of the oath, Mr. George F. 
 Hoar, of Massachusetts, was permitted by unanimous consent to make the following 
 statement : 
 
 The chairman of the Committee on Privileges and Elections, the Senator from Michigan [Mr. 
 Burrows], is obliged to be absent. He desired me to state in his behalf that he understands the orderly 
 and constitutional method of procedure in regard to administering the oath to newly elected Senators 
 to be that when any gentleman brings with him or presents a credential, consisting of the certificate 
 of his due election from the executive of his State, he is entitled to be sworn in, and that all questions 
 relating to his qualification should be postponed and acted upon by the Senate aftei-wards. 
 
 If there were any other procedure, the result would be that a third of the Senate might be kept 
 out of their seats for an indefinite time on the presenting of objection without responsibility, and never 
 established before the Senate by any judicial inquiry. The result of that might be that a change in 
 the political power of this Government which the people desired to accomplish would be indefinitely 
 postponed. 
 
 I make this statement at the request of the Senator from Michigan [Mr. Burrows]. 
 
 The oath was then administered to the Senators-elect, among that number 
 being Mr. Reed Smoot, of Utah, who took the oath without question. 
 
 On January 27, 1904,^ the Senate agreed to the following resolution: 
 
 Resolved, That the Committee on Privileges and Elections of the Senate, or any subcommittee 
 thereof, be authorized and directed to investigate the right and title of Reed Smoot to a seat in the 
 Senate as Senator from the State of Utah; and said committee, or any subcommittee thereof, is 
 authorized to sit during the sessions of the Senate, to employ a stenographer, to send for persons and 
 papers, and to administer oaths; and that the expense of the inquiry shall be paid from the contingent 
 fund of the Senate upon vouchers to be approved by the chairman of the committee. 
 
 ' Special session Senate, Fifty-eighth Congress, Record, pp. 1, 2. 
 - Second session Fifty-eighth Congress, Record, p. 1329. 
 
 .5994— VOL 1—07 •■',(•)
 
 562 
 
 PBECEDENTS OF THE HOUSE OF KEPRESENTATIVES. 
 
 §481 
 
 The investigation continued during the third session of the Congress, and 
 during that session the arguments ' were made. 
 
 The investigation had shown that Mr. Smoot was an officer of the Mormon 
 Church. No claim was made that he was himself a polygamist. Mr. Robert W. 
 Tajler, who had conducted the presentation of the case against him, stated in his 
 argument : 
 
 Now, gentlemen, this is the broad claim we make: That the church is in fact higher than the 
 law; that the hierarchy and its members are in fact higher than the law. I do not mean that they 
 consciously realize that in every act that they perform they are above the law, or that they do not 
 quite unconsciously generally obey the law, as most men obey it, but that after all when we get to 
 the inner consciousness that controls them they are obedient to a higher law, and they are so, because 
 as I indicated incidentally earlier in my argument, they or it receive revelations, because its member- 
 ship, especially the hierarchy, are in immediate contact with God. I shall have more to say about 
 that as we go along. This is basic. I should like that every word I say from now on should be con- 
 sidered in view of the fact and with constant apprehension of the fact that revelation runs through 
 the Mormon mind and is the basis of the Mormon religion and of its hold on the Mormon people to-day — 
 revelation liy actual contact with the Almighty. 
 
 In that thought we discover the explanation of everything that has happened. The defiance of 
 law, not because it was law — that is, the law of the land — not because it was the law of the land, but 
 because there was a law of God that was higher than the law of the land; the constant defiance of the 
 law of the land, from Independence, Mo., in 1836 to 1840, down to the present hour, all are due not 
 to lawlessness, but to the fact that there is a higher law that speaks to them. 
 
 So, also, from this spirit of authority growing out of revelation, and without that they had not 
 the right to do it, we know of their institution of courts, sometimes and in some regions exercised more 
 generally than in others, but absolutely exercised, as we know by the official records of the case. 
 
 Now, all these things involve and determine Senator Smoot's status, and I am now ordy outlining 
 the claim as to him. 
 
 First, in his attitude toward revelation, to which I have already made reference, and to which 
 the order that I have in mind to pursue will make it necessary for me to refer again. 
 
 Second. His integral partnership in the hierarchy. He is not an independent person. No indi- 
 vidual member of the hierarchy is independent. They are a unit. But of that I will speak further on. 
 
 His acts of omission and commission. Different views will be taken as to the extent of his duty, 
 as well as of the extent of his power. But we do know what his relation is and was to the Cluff incident — 
 the president of the Brigham Young University, an institution in which there were a thousand young 
 people of both sexes — wherein Senator Smoot, a trustee and member of the executive committee, if 
 he did not have knowledge, said he had reason to believe that the president of that institution was not 
 only a polygamist, but that he had taken another plural wife, the daughter of a high official of the 
 church, as recently as 1899, and he permitted him — that is to say, he made no objection, and made no 
 investigation — this new polygamist, as well as old polygamist, to remain at the head of that institution, 
 and then when he retired he voted or consented to, and now approves of, the election of another polyga- 
 mist in his place; his participation since this case commenced in the election of Penrose, a polygamist, 
 to the apostleship to succeed one who was not a polygamist; his relation to Joseph F. Smith, whom he 
 voted to make the president of the church, and whom he has sustained regularly ever since, and also 
 the other apostles. 
 
 Next, his determination not to interfere with polygamists, his statement not only that he has not 
 complained of it, that he has not disapproved of it, that he has not criticised his associates in the hier- 
 archy, but also that he will not, and does not intend to, speak to them or to take any steps toward seeing 
 that they, his associates in this close institution, should either be prosecuted or disciplined in the 
 chiurch, whose rules they violate. 
 
 His attitude with respect to this endowment ceremony, his refusal to disclose what it was, and 
 his statement made here in the presence of this committee that he could imagine nothing that could 
 induce him to reveal it, not even the Senate, not even the courts, not even the power of the law. 
 
 ' See arguments in the Smoot case, M'ashington, Government Printing Office, 1905.
 
 § 481 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 563 
 
 Mr. Tavler then proceeded to discuss the method of reaching 3klr. Smoot : 
 
 I do not need to say to this committee that the power of the Senate on any subject within its general 
 scope is exceedingly broad. There is no limitation upon its power except that which the Constitution 
 imposes, and the Constitution imposes very few limitations. It imposes absolutely no conditions upon 
 the power of the Senate respecting the matter of the elections, returns, and the qualifications of its mem- 
 bers. It is the sole judge of all questions which, within the Senatorial mind, may be encompassed within 
 that inquiry. It does limit the power of expulsion by requiring that two-thirds of the members shall 
 concur in such a motion. The constitutional provision giving the power to expel is verj' peculiar, and 
 has given rise to much discussion since the institution of the Government. I myself have verj- decided 
 convictions upon the meaning of that provision, and I do not think there ought to be any great difficulty 
 in construing it. The language is; 
 
 '" Each House may determine the rules of its proceedings, punish its members for disorderly behav- 
 ior, and, with the concurrence of two-thirds, expel a member." 
 
 Xow, if we construe that according to the ordinary rules which apply to the construction of the 
 English language, we of course take it all together. The context relates to the words "with the con- 
 currence of two-thirds expel a member; " and I have always assumed that the power to expel referred 
 to that conduct which the Senate could carry on respecting a member who had a right to be there, whose 
 title there was unquestioned, and for something that he did. or for some status in which he was while 
 a Senator. I think that is the only sound construction of that clause in the Constitution. It has never 
 had another construction, in fact, by the acts of the Senate. 
 
 No Senator has ever been expelled, no Member of the House has ever been expelled, except for 
 some act done by him while a Senator or Representative, or relative to his functions as a Senator or 
 Representative; and I think no serious effort was ever made to expel for any other reason than that. 
 
 In the present case the power of expulsion could be invoked, because the claim is made that the 
 status of Senator Smoot, his relation to this law-defying hierarchy, his own attitude toward law, the view 
 that he takes of his capacity to receive revelations from Almighty God, all indicate a present status that, 
 if necessarj-, brings it within the power of the Senate to expel. But if what I have said concerning Sena- 
 tor Smoot be true, that status and that state of mind — that personal relation that he must sustain, if 
 he understands himself, to law and respect for law — of course preceded his entrance into the Senate 
 and is a part of his constitutional temperamental make-up. 
 
 The broad power of the Senate is that it is the judge of the elections, returns, and qualifications 
 of its own members. We have heard a good deal of talk about the Constitution makingthree qualifica- 
 tions for membership in either House; that one must be an inhabitant of the district from which he is 
 elected; that he mtist be a citizen of the United States, and must be of a certain age. That is true. 
 Those three things must exist. 
 
 Beyond that legislation is vain. Congress can add no qualifications, can take none away, for one 
 Congress can not limit the power of another Congress. The Constitution has done the limiting. But 
 that is very far from denying that under the constitutional power of each House to be the judge of the 
 elections, returns, and qualifications of its members either House may not upon proper occasion define 
 and declare ineligibility or disqualification in one who seeks to enter the body, or who, having entered 
 it. is charged with want of eligibility or qualification. That occurs constantly in the House, where elec- 
 tions are contested for various reasons — sometimes for invalidity in the election itself; sometimes for 
 want of qualification in the elected himself. But always the question is answered by the House to 
 which it is put. controlled only by the general provision of the Constitution that makes it the judge. 
 
 Suppose it were true that Senator Smoot was a polygamist? If a polygamist, he would have no 
 other relation to his seat — he could not be looked upon by the Senate in any other light — than as a law- 
 breaker or as a defier of law. So, continuing the use of that expression, if Senator Smoot were in law 
 to be defined as a lawbreaker, or a defier of law, what would be the duty of the Senate? What would 
 he be? Would he be merely the subject of expulsion, assuming this defiance to have continued, to have 
 commenced back of his election, back of his entrance into the Senate, the condition that exists now 
 being a condition that antedated his entrance here? The acts that he thus committed, the status 
 that he thus sustained toward law, would, according to my \'iew of it, render him ineligible to become 
 a member of the legislative body. I do not think that any man who came marching down the aisle of 
 the Senate to be sworn in, proclaiming himself a lawbreaker, if that were possible, would have the 
 right to be sworn in, or, being sworn in, could not be ejected by a majority vote. The Senate would
 
 564 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 481 
 
 be the judge of the qualifications of its members; and it would say then, as the House has said in 
 more cases than one, and which neither body has ever declared that it had not the right to say, that the 
 time to settle that question was when he thus presented himself. 
 
 Senator Beveridge. You asked for interruptions from members of the committee? 
 
 Mr. Tayler. Yes. 
 
 Senator Beveridge. Do I understand your contention at this point to be — and I imagine it is 
 very important — tliat if Senator Smoot is not legally a member of the Senate, then a majority of the 
 Senate may determine. If he is legally a member of the Senate, then all questions affecting his expul- 
 sion would require two-thirds. Is that the contention? 
 
 Mr. Tayler. No, not exactly, Senator. When one is sworn in, no matter what may be the infir- 
 mity in his title as later developed by testimony, he has his seat. He is a Senator. 
 
 Senator Beveridge. He is a member? 
 
 Mr. Tayler. He is a member; but the same cause that would justify his exclusion, if all the facts 
 were known and the Senate in full knowledge of its power had acted before he took his seat, will suffice 
 to exclude him or declare his seat vacant by a majority vote after he has taken his seat. 
 
 Senator Beveridge. In other words, if these facts had been known at the time and the contest 
 had been raised before he took the oath, it is conceded that under such circumstances a majority would 
 have been competent to act. Now, if those facts are developed later on, do you contend that although 
 he is a member technically, nevertheless a majority still is competent to act? 
 
 Mr. Tayler. Undoubtedly. The House does it every session. Suppose it should appear to-day 
 that Senator Smoot was not a citizen of the United States, his seat could be declared vacant by a majority 
 vote. Expulsion would not be the method. 
 
 Senator Beveridge. That notwithstanding the fact that he is technically a member 
 
 Mr. Tayler. Actually a member. 
 
 Senator Beveridge. Let me state my question. 
 
 Mr. Tayler. Yes. 
 
 Senator Beveridge. The two-thirds rule does not operate. Is that your contention? 
 
 Mr. Tayler. Undoubtedly. 
 
 Senator Bailey. Permit me to interrupt you here. The qualifications which the two Houses are 
 authorized to judge of are the qualifications laid down in the Constitution. In other words, the Consti- 
 tution provides that "no person shall be a Senator who shall not have attained to the age of 30 years and 
 been nine years a citizen of the United States, and who shall not when elected be an inhabitant of that 
 State for which he shall be chosen." As I have always understood it, that provision fixes the qualifi- 
 cations of a Senator, and it is not competent either to add to these qualifications or to subtract from them- 
 and that when the two Houses are authorized to judge of the elections, returns, and qualifications of their 
 members, it has reference to the questions of age, citizenship, and residence within the State. 
 
 Mr. Tayler. No. If there is any subject upon which I have a decided conviction it is on that — 
 that the constitutional provision does not confine the inquiry of either House to the question as to 
 whether the member is qualified in the three respects which the Senator from Texas has suggested. 
 
 Senator Beveridge. Then why did the Constitution enumerate those? If the Constitution leaves 
 it open for either House to determine something in addition to those, why did it enumerate these at all? 
 MTiy did it not leave it all open? 
 
 Mr. Tayler. That is a long argument. But, for instance, the Constitution does have other quali- 
 fications. Although it proceeds to set out in the first section that Representatives and Senators shall 
 have attained a certain age, and have qualifications with respect to citizenship and inhabitance, yet the 
 Constitution in other places shows that those three were not intended to be the only qualifications 
 required. For instance, it says that no test oath shall be required. AMiy should the Constitution have 
 such a provision in it if it had already exhausted the subject? 
 
 Senator Beveridge. If the Constitution leaves it open with reference to other qualifications than 
 those enumerated, and which have been read, why did it not leave it open with reference to all the 
 qualifications if it meant that either House might enlarge upon the qualifications which have just been 
 read? 
 
 Mr. Tayler. My answer in the first place is that it did not do that. It goes on to siiy in another 
 part of the Constitution that some other certain things shall not be required to qualify a person to become 
 a member of either Ildu.se. 
 
 !
 
 § 481 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 565 
 
 Senator Beveridgb. Adding those things specifically enumerated elsewhere in the Constitution 
 to these, the question still is, Why, if the Constitution enumerates some things and meant to leave other 
 things open to the sense of the Senate, it should have enumerated any? 
 
 Mr. Tayler. I think I have answered it by saying 
 
 Senator Beveridge. All right. 
 
 Mr. Tayler. It proceeds to enumerate the three different qualifications upon which it is said we 
 ought to base our argument, and we find that twice thereafter, once with respect to holding other offices 
 and once with respect to taking an oath, it did not do so. I do not think the Constitution is to be 
 construed as though men wanted the Senate of the United States or the House to be bound in some 
 Procrustean bed that would not permit it to live. Is it not an institutional question that the body 
 should have some control over the subject of its membership? 
 
 Senator Beveridge. It may be. 
 
 Mr. Tayler. Suppose that a maniac walked down the aisle to be sworn in. Suppose he was there. 
 Suppose it was not a case of expulsion at all. Suppose that he was a traitor, known to be a traitor, with 
 respect to whom it had been determined within the constitutional method that he was guilty of treason. 
 Is it to be said that, although he possessed every constitutional qualification, nevertheless he is not 
 disqualified to be a member of the Senate? 
 
 Senator Bailey. You do not mean to say that the Senate could not protect itself in a case of that 
 kind without raising the question of qualification, as we understand it in the Constitution? 
 
 Mr. Tayler. I do not know how it could. 
 
 Senator B.\iley. It could expel him provided it could obtain the two-thirds. 
 
 Mr. Tayler. Of course it could. But why should it require two-thirds of the Senate to keep out 
 a maniac or a traitor? 
 
 Senator Bailey. And it could expel him as being unfit for or incapable of performing the duties 
 of his office. But I will ask you this question: Do you think that Congi-ess could provide that hereafter 
 no person shall be chosen a Senator who had ever been convicted or who had ever been accused of any 
 crime? 
 
 Mr. Taylee. No. Congress is absolutely without power 
 
 Senator Bailey. It, then, could not by statute add to those qualifications? 
 
 Mr. Tayler. Not at all. 
 
 Senator Bailey. But it can by a vote 
 
 Mr. Tayler. Of course not Congress, if the Senator please, but the House into which the Member 
 comes; each House, but not Congress. 
 
 Senator Bailey. You think it would be competent for one House to establish with respect to its 
 Members a rule of exclusion that the two Houses could not establish by law? 
 
 Mr. Tayler. Undoubtedly, because when the Senate, for instance, establishes a qualification 
 for its Members it establishes it for that Congress alone — that is to say, for that session, for that Senate. 
 
 Senator Bailey. Is it not compelled to establish those qualifications under the constitutional 
 provision under the protection of which every man comes to the House or the Senate? 
 
 Mr. Tayler. Undoubtedly. 
 
 Senator Beveridge. Narrowing the question from Congress to either House, it is competent for 
 the Senate to make rules, which it does respecting many things. It is competent for the Senate to pass 
 a rule for its own government and guidance that no man who has ever been accused of any crime shall be 
 permitted to take the oath? 
 
 Mr. Tayler. The Senate whose term expires on the 4th of March has no more power to control the 
 action of the Senate that begins on the 4th of March than I have — not a particle more. 
 
 Senator Beveridge. The Senate is a continuing body. 
 
 Mr. Tayler. I understand it is a continuing body. 
 
 Senator Beveridge. Is it not like the House. 
 
 Mr. Tayler. But the next Senate can undo that. 
 
 Senator Beveridge. There is no next Senate. The Senate is a continuing body. 
 
 Mr. Tayler. I understand that. 
 
 Senator Beveridge. To narrow the question put to you, do you think it is competent for the 
 Senate to establish such a rule, and that it would be effective while it lasts? 
 
 Mr. T.AYLER. Undoubtedly, because when that rule was not overthrown by the succeeding Senate
 
 566 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 481 
 
 it would continue by implication to be its rule. But the Senate can not make a rule to-day which it 
 can not undo to-morrow. It can not make a rule now which it can not undo at 1 'clock on the 4th of 
 March. It is not law. Of course the two Houses can not pass laws laying qualifications, because the 
 two Houses have no power at all over the constitution of the membership of succeeding Congresses 
 except as to the number. But each House is in control of the subject of its own MembeJs. 
 
 Senator Pettus. Mr. Chairman, I most respectfully ask that this argument may be allowed to be 
 made by counsel. We can get no benefit if it is to be a debate between the members of the committee 
 and the counsel on the floor. There are places where counsel are not allowed to make their arguments 
 to the court, but must make it with the court. Whenever counsel gets in that fix he is in a bad 
 situation. 
 
 Senator Bailey. It may be that some members of the committee are entirely satisfied without 
 having their minds enlightened. I do not happen to be one of that kind. 
 
 I really am trying to ascertain just how far we can go, and my opinion was not that of the counsel, 
 and I thought if the counsel could convince me that on the question of qualifications we could proceed 
 outside of the Constitution it might make a difference in my opinion. 
 
 But I will conform to the wishes of my senior, with this statement, that when counsel replied to 
 me that the Constitution treated these as not the only qualifications and then provided that no test 
 oath should ever be required, Mr. Tayler will, of course, recognize that that did not apply merely to 
 Members or Senators. It applied to everybody, and therefore could not have been incorporated in 
 the provision with respect to Senators. It declares, toward the end of the Constitution, that — 
 
 "The Senators and Representatives before mentioned, and the members of the several State 
 legislatures, and all executive and judicial officers, both of the United States and of the several States, 
 shall be bound by oath or affirmation to support this Constitution, but no religious test shall ever be 
 required as a qualification to any office or public trust under the United States." 
 
 It looks like that did not exactly make a qualification, but excluded a disqualification. 
 
 The Chairman. The Chair will state that Mr. Tayler at the outset- — possibly the Senator from 
 Alabama was not then here — invited interruptions upon any point where members of the committee 
 might desire further explanation, and the Chair thinks interrruptions were entirely in order. Of course, 
 if they were continued, they might consume the entire hour. But with that the committee has nothing 
 to do; and it certainly will serve to enlighten the committee upon these points about which there may 
 be an honest difference of opinion. 
 
 Senator Beveridge. I should like to state, if I may, before Mr. Tayler proceeds, that Mr. Tayler 
 asked the members of the committee specifically to ask any questions, and said he did so because he 
 thought it would tend to clarify the case and save time. I think, so far as I am concerned, I shall have 
 no other questions to ask Mr. Tayler. 
 
 Mr. Tayler. Of course it has given me pleasure to be interrupted. There is no subject that I 
 should like to talk on more than the one about which I have just been inquired of, because there is not 
 any subject on which I have talked as much as I have on it. 
 
 Senator Bailey. I remember that question was up when we were both Members of the House. 
 
 Mr. Tayler. Yes, sir. 
 
 Senator Bailey. I did not agree with you then. 
 
 Mr. Tayler. I recall the fact. 
 
 Senator Bailey. And I voted the other way. 
 
 Mr. Tayler. I was not surprised at the question of the Senator from Texas, for I knew that he 
 did not agree with me at that time. 
 
 I may, perhaps, ask the indulgence of the committee, in view of these questions, that I may, in 
 my argument as printed, elaborate this question by making some extracts from a very full discussion 
 of it which is in the argument that I made in the Roberts case. Perhaps, historically, it would be better 
 that it be inserted. 
 
 Senator Foraker. I wish to make a remark at this point, not to interrupt you or unduly take the 
 time of the committee. I understand your proposition to be that, notwithstanding the grounds of dis- 
 qualification enumerated in the Constitution, if when a Member has been elected and presents himself 
 to be sworn in it be manifest that he is a maniac or a lunatic, he may be, on that ground, excluded? 
 
 Mr. Tayler. Yes. 
 
 Senator Foraker. For want of qualification?
 
 §481 
 
 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 567 
 
 Mr. Tatler. For want of qualification or for a crime. My argument in the Eoberts case cites a 
 large number of constitutional authorities on that proposition. 
 
 Senator Knox. In order to get your view absolutely I think there should be added to the question 
 of Senator Foraker this: By what vote may he be excluded? 
 
 Mr. Tayxer. By a majority vote. 
 
 Senator Beveridge. That is, in the case you have stated, when he presents himself? 
 
 Mr. Tayler. Yes. 
 
 Senator Beveridge. Suppose later on it should develop that he is a lunatic? 
 
 Mr. Tati,er. Of course, if we consider that for a moment the logical and inevitable conclusion 
 from it is that that which may be done before one enters may be done after he comes in. That which 
 justifies exclusion before getting rid of him afterwards. 
 
 Senator Beveridge. By the same method? 
 
 Mr. Tayi-er. By the same vote; by the same method. 
 
 Senator Beveridge. My mind does not follow that. 
 
 Mr. Tayler. Just as is done in the House. 
 
 Senator Foraker. That is, his position would not be bettered any, your contention is, by having 
 been given his seat? 
 
 Mr. Tay-ler. Not at all. The question of right in him and of power in the Senate is precisely 
 the same in either case. Of course if the thing complained of occurred after taking his seat, then it 
 would not be a case of exclusion, but of expulsion. 
 
 Another observation on that which I leave with the committee to work out in its own way is that 
 which was made by Jeremiah Wilson, who was the counsel of the Mormon Church and appeared for it 
 in many of its cases. He made an especially full and able argument in one of the applications made by 
 Utah for admission. This pamphlet is entitled "Admission of the State of Utah, 1889," and in con- 
 nection with the hearing a large number of people bore testimony or made arguments, and among those 
 who made arguments was Jeremiah M. Wilson. The subject of obedience to the constitutional provision 
 that was to go in was up. This is not exactly that, but it is analogous to it. He then said 
 
 The Chairman. May I call your attention to the case of Philip F. Thomas? 
 
 Mr. Tayt,er. I have it here. 
 
 The Chairman. It is found on page 133 of the Compilation of Senate Cases. There a party was 
 excluded because his son had taken up arms against the Government of the United States, and the party 
 seeking admission to the Senate had contributed $100 in support of his son and in encouragement of his 
 entering the rebellion. The Senate refused to admit him. You will come to that later? 
 
 Mr. Tayler. I will refer to it right now. Philip Thomas had been elected to the Senate from 
 Maryland, and there was a very elaborate debate in March, 1867. The charge made against him was 
 that he was disloyal, and therefore incapable of taking the test oath which had been provided in the act 
 of July, 1862. A resolution was then adopted and under the provisions of it he was excluded from the 
 Senate because he had voluntarily given aid, countenance, and encouragement to persons engaged in 
 rebellion. The vote on the question of his exclusion was 27 to 20. Among those voting in the negative 
 was Lyman Trumbull, but he voted in the negative because he thought the proof of disloyalty was 
 unsatisfactory. 
 
 The Chairman. The evidence in the cause of Thomas was that his son had entered the Confederate 
 service, and his father had contributed §100. 
 
 Mr. Tayler. I do not attach so much importance to those cases growing out of the war as I do to 
 hose which came under circumstances when passion was less effective in dispelling reason. 
 
 Senator Foraker. In the Thomas case he was denied his seat. 
 
 Mr. Tayler. Yes; he was denied his seat. 
 
 Senator Foraker. He was not allowed to take his seat? 
 
 Mr. T.^YLER. He was not allowed to take his seat. 
 
 Senator Beveridge. He was not expelled. He did not become a Member. 
 
 Mr. Tayler. My contention is that the Senate does not lose its rights because a man happens to 
 get in whom it might have excluded for conditions existing prior to that time. If ineligibility or other 
 cause that justified his exclusion existed, the same method and the reason would apply after he got in. 
 
 The Chairman. There was no question in the Thomas case that he was of a proper age, a citizen of 
 the United States, and a resident of the State. He had all the enumerated constitutional qualifications.
 
 568 PRECEDENTS OF THE HOUSE OF REPBESEKTATIVES. § 481 
 
 Mr. Waldemar Van Cott, arguing for Mr. Smoot, discussed this subject : 
 
 The contention has no merit that Senator Smoot is subject to be expelled by a majority vote. 
 
 The Federal Constitution, Article I, section 4, provides ''Each House may * * * with the 
 concurrence of two-thirds, expel a Member." 
 
 To give proper meaning to the above provision, it is l)est to inquire as to the motive tliat induced 
 the constitutional fathers to insert this clause. In tliose early times tliere was considerable jealousy 
 among the different States — that one State should not gain an advantage over another in the matter of 
 representation; in other words, each State wished to protect its rights in the National Government, 
 and to accomplish that end insisted upon a two-thirds vote to expel. If the provision had been that 
 a majority might expel, then the States might the more easily be deprived of their representation, as 
 combinations, corrupt or otherwise, could be formed to expel a. member. A majority vote might lie 
 successful, while a two-thirds vote would probably be unsuccessful. Therefore, it is reasonable to 
 assume that the two-thirds rule was inserted in the Constitution so as to guard the more carefully each 
 State's representation. This idea has been expressed by the Supreme Court of the United States. In 
 6 Wheaton, 233, Anderson v. Dunn, it is said: 
 
 "The truth is that the exercise of the powers given over their own Members was of such a delicate 
 nature that a constitutional provision became necessary to assert or communicate it. Constituted as 
 that body is, of the delegates of confederated States, some such provision was necessary to guard against 
 their mutual jealousy, since every proceeding against a Representative would indirectly affect the honor 
 or interests of the State which sent him." 
 
 From the above quotation it is apparent that the States were jealously guarding their lienor and 
 interests by providing tliat their Representative should not be expelled without the concurrence of 
 two-thirds of the Members of the House in which he was sitting. 
 
 In 1 Story on the Constitution, section 837, in speaking of the power to expel, it is said: 
 
 "But such a power, so summary, and at the same time so subversive of the rights of the people, 
 it was foreseen might be exerted for mere purposes of faction or party to remove a patriot or to aid a cor- 
 rupt measure; and it has therefore been wisely guarded by the restriction that there shall be a concur- 
 rence of two-thirds of the Members to justify an expulsion." 
 
 This subject is very fully discussed in 1 Story on the Constitution, sections 837 and 8.38. They 
 are too long, however, to quote in full. 
 
 Justice Story refers with approval to the case of John Smith, Senator from Ohio, decided in the 
 United States Senate. This case will be found in the compilation of Senate election cases, from 1789 
 to 1885, page 934. This case is exactly in point. John Smith was elected Senator from Ohio from 
 October 25, 1803, until he resigned, April 25, 1808. In the statement it appears that certain bills of 
 indictment were found in connection with the Aaron Burr conspiracy in the August before John Smith 
 took his seat in the Senate, the latter date being October 25, 1803. The case is very lengthy. There was 
 a long debate on the resolution to expel. Nineteen voted to expel and ten not to expel, and the syllabus 
 of the case says: "* * * so that, two-thirds of the Senate not concurring therein, he was not expelled." 
 It will be observed that if a majority had been sufficient, John Smith would have been expelled. This 
 case was decided in the Tenth Congress, first session, in 1808. 
 
 Keeping carefully in mind the reason for the constitutional provision, it is apparent that it is just 
 as logical to require a two-thirds vote to expel a member for a crime that was committed before taking 
 his seat as there is for a crime committed after taking the seat. 
 
 Suppose A commits an offense against the laws of the United States after his election to the United 
 States Senate. In such case Mr. Tayler concedes that it would take a two-thirds vote to expel. Sup- 
 pose, on the other hand, the same Member had committed the same offense before taking his seat. In 
 that case Mr. Tayler argues that such Senator might be expelled by a majority vote, because the objec- 
 tion existed at the time of taking the seat. The only difference in the two cases is time; there is no 
 difference in reason. 
 
 There is a substantive difference between a constitutional ineligibility on the part of a man to be 
 a United States Senator and a mere personal objection, and the two principles should be kept distinct 
 in the mind. Suppose A is elected to the United States Senate and is not a citizen of the United States. 
 In that case there is a constitutional ineligibility. Such person may take the Senatorial oath and take 
 his seat, yet it is evident that such person, while he may be for the time a Senator de facto, he is not
 
 § 481 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 569 
 
 a Senator de jure, because he has not the necessary requirements. In such case it appears entirely 
 reasonable that a majority vote could oust him. 
 
 But suppose A is constitutionally eligible to be elected a United States Senator, and is so elected. 
 Further, suppose that A at the time of the election has such personally offensive habits as to be intoler- 
 able to decent men. Nevertheless, suppose A presents himself to the United States Senate and takes 
 the oath and enters upon the performance of his Senatorial duties, and then these intolerably offensive 
 habits are discovered. In the latter case the objection to A existed at the time of his election. Who, 
 except Mr. Tayler, would contend in such case that A could be expelled by a majority vote? The con- 
 stitutional reason that a two-thirds vote shall be required to expel a member applies with full force in 
 such case; in the latter instance the Senators may waive or not the objection to the personal habits 
 of A. Under the Constitution, however, they would not have the power to waive A's constitutional 
 ineligibility, as this in effect would override the Constitution. 
 
 Senator Smoot was constitutionally eligible to be a United States Senator at the time of his election. 
 WTien he took the oath of office and entered upon the performance of his official duties he was still eligible 
 under the Constitution. In argument, however, and objection is made to Senator Smoot for one alleged 
 reason. Even if it were established as true, the United States Senate has the power to ignore it, and to 
 allow Senator Smoot to retain his seat. The United states Senate may do this because it has the power 
 to pass on the qualifications of its own members; but if Senator Smoot were not a citizen of the United 
 States the Senate would not have the power to waive that requirement, and could not waive it, unless 
 it should arbitrarily override the express provision of the Constitution. 
 
 Mr. A. S. Worthington, also arguing for Mr. Smoot, said: 
 
 I would like to say, as preliminary to the argument in this case, that I have been greatly impressed 
 with the contrast between the proceedings in the case when an officer of the Government is to be im- 
 peached by the Senate, or before the Senate, even though he may be an officer so comparatively unim- 
 portant as a district judge of the United States, and the proceedings which are provided in case one 
 who is a member of the highest legislative body of this great nation is called to an account. When 
 a district judge is impeached there is a carefully prepared indictment, setting forth exactly what he is 
 to meet, and that he is called to respond in the Senate of the United States, with his counsel, and there 
 the witnesses are heard before the assembled Senate, the presiding officer, as he did the other day, 
 carefully reminding Senators that it is very important that they should all be present and hear the 
 testimony and see the witnesses. And I see that you have carefully provided rules for the conduct 
 of such an investigation as that, and have provided that counsel may be there to make objections, and 
 that if any Senator wishes to ask a question he shall reduce it to writing and it shall be handed to the 
 presiding officer and asked by him; and that if any objection is made to testimony, while the presiding 
 officer shall rule upon it in the first place, it may, upon his motion, or upon the request of any Senator, 
 be submitted to the entire Senate. 
 
 Yet, in the case in which a Senator is to be visited, if he be found guilty, with punishment like 
 that which shall be inflicted upon the judge, of being turned out of his office, we find that we are here, 
 as we found, and as Senators have found during the progress of this case, compelled to scramble through 
 a record of nearly three thousand printed pages to find out what the issues are which we are trying, 
 and that, in all probability, if every member of the committee should be asked the question, no two 
 of them would agree as to precisely what the issues are. And we find that, while the testimony has been 
 taken and reduced to print, the great mass of it has been heard by very few Senators, and that even 
 on one occasion there was but one Senator present, the distinguished chairman of this committee, and 
 when he was called out of the room for a moment, he intimated that we might go on in his absence; 
 which we did not do. 
 
 I make this suggestion in no spirit of complaint or fault-finding, but as Ijringing to the attention 
 of the committee, and I might hope of the Senate, a question of importance, not only in the determina- 
 tion of this case, but of all like cases hereafter, because Senator Smoot is to be tried and his case decided 
 by a tribunal not one-tenth of which has seen any of his witnesses or heard any of them testify. We 
 all know how exceedingly important it is, in determining what weight shall be attributed to the testi- 
 mony of a witness, to see him and to hear him. I have in mind some witnesses in this case whose testi- 
 mony reads as though it might be credible, when I do not beUeve any Senator who heard the witnesses 
 would believe them for a single moment.
 
 570 PRECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 481 
 
 The slightest examination of the record will also show that, unlike, I should suppose, the proceed- 
 ings in the impeachment of a judge or other officer of the United States, we are practically without 
 rules of evidence, because, as was stated several times in the progress of the case, this is not a trial at 
 aU, but an investigation, and the committee has the right to inquire for hearsay evidence, because A 
 may tell that B told him something, and B may say that he got it from C, and so we may lead to the 
 original evidence. When my associate undertook to argue that in that way the record would be filled 
 with matter which might come before members of the Senate who are not lawyers and who would not 
 be able to distinguish between legal and illegal evidence, we were told that that was a matter which 
 had become so well settled in the practice of the Senate that we would not be allowed to further argue it. 
 
 So that we are here before a great tribunal in which a defendant is called upon to respond to charges 
 BO serious that they may evict him from the Senate of the United States — and no greater punishment 
 could be inflicted upon an honorable man, a man with any sense of the proprieties or honors of life — 
 and his counsel are called upon to argue the case for him, upon a record which contains evidence nine- 
 tenths of which we believe is not competent and may not be considered, and yet we do not know what 
 may be in the minds of even members of the committee on that subject, much less in the minds of other 
 Members of the Senate who probably have not yet considered it. 
 
 Under all these difficulties I proceed to consider the questions which seem to arise in the case, 
 guessing as to some of them and having probable ground as to the others. 
 
 Now, in the first place, and at the forefront of this case, there lies a question, which even if I had 
 had the time to prepare for it, I should doubt my ability to properly present it to such a tribunal as this, 
 and I am going to say very little about it in this argument, and that is the question which arises as to 
 the grounds upon which Senator Smoot may be expelled from the Senate at this time, he having been 
 duly admitted to office, and having been sworn in and taken his seat, and as to the grounds in any case, 
 whether they be made as an objection before a Senator is sworn or after he is admitted, upon which 
 the Senate would proceed. 
 
 Of course it has the power to proceed upon any ground, but we all assume, as has been done here 
 so far in this discussion, and everybody will assume that the committee and the Senate will act judicially 
 in the matter, and not arbitrarily. 
 
 The whole learning on this subject, so far as I have been able to ascertain, is gathered up in two 
 places. One is where my friend, Mr. Tayler, as the chairman of a special committee of the House of 
 Representatives, investigated the question of the right of Brigham H. Roberts to a seat in the House 
 of Representatives, where there was a majority report and a minority report on the questions that were 
 involved there. With that you are all familiar. 
 
 There is another case with which Senators may not be so familiar, because it has not found its 
 way into the compilation which I have seen, and that is the case of Roach. 
 
 Roach was at one time the cashier of the Citizens' Bank of this city, and it was charged, and appa- 
 rently never denied, that he had embezzled, while cashier, about $30,000 of the bank's money. His 
 friends or relatives settled with the bank and he was never prosecuted. He went to North Dakota, 
 and after a while he came back as a Senator from that State and was admitted and took his seat without 
 objection. Afterwards, in some way, the question was raised tliat he should not be entitled to his seat, 
 and great discussion took place then as to whether it was a case in which the Senate had any power to 
 act at all, because it was a crime that lie had committed before his election. 
 
 That matter was discussed by the leading lawyers of the Senate on both sides, and all the author- 
 ities were gone over there, with the result that a resolution to refer the matter to the Committee on 
 Privileges and Elections was never passed upon at all, and he served out his term. (Vol. 25, pt. 1, 
 Cong. Rec, 53d Cong., special sess., pp. 37, 111, 137 to 162.) 
 
 I would also like to refer for just one moment to the celebrated case in England of John Wilkes. 
 
 Many years ago Wilkes, while a member of the House of Commons, libeled the King and was 
 expelled from the House of Commons for that offense. His constituency immediately reelected him, 
 and the House refused to receive him on the ground that a man who had been expelled was not a fit 
 man to sit there. His constituency sent him back once more, and again the House refused to receive 
 him; he was again sent back, and again the House refused to receive him. So it went on, as I remember, 
 for about fourteen years, when at last the House came to the conclusion that his constituency had a 
 right to be represented in the body, and he was admitted to his seat. Thereupon annually for several
 
 § 482 POLYGAMY AND OXHEB CB1ME3 AS DISQUALIFICATIONS. 571 
 
 years afterwards he moved that all the previous resolutions of the House to the effect that he was not 
 entitled to have a seat therein should be expunged. Finally that motion was carried; and the clerk 
 of the House, on its table and in the presence of the assembled House of Commons, expunged all the 
 previous resolutions to the effect that a member who represented his constituency could be expelled 
 from his scat because the House at some prior time had adju'dicated him to be unfit for his seat. As 
 the resolution of expulsion expressly stated, this was done, not because the orders of the House which 
 were obliterated were in derogation of the rights of Wilkes himself, but because they were "subversive 
 of the rights of the whole body of electors" of England. (Paine on Elections, 872-878.) 
 
 And I ask this committee to remember that you have here not merely the question of whether 
 Reed Smoot shall be entitled to retain his seat, but as to the right which a sovereign State — Utah — • 
 has in the selection of persons to represent it here, and whether it may be said that for causes which 
 lie back of his election and which were known to his constituents, he shall be expelled. 
 
 If Mr. Tayler's present contention on this point should, be sustained it would come in the end to 
 this, that instead of the States of this Union having the right to select the men to represent them in 
 the United States Senate they would have the right merely to nominate candidates for the office, who 
 would be admitted only after obtaining the advice and consent of those who were already here. 
 
 There is one case, too, in this country to which I wish particularly to direct the attention of the 
 committee. That is the case of George Q. Cannon, a polygamist, who, while a polygamist and living 
 in polygamy, was sent to the House of Representatives as the Delegate of the Territory in the House, 
 and attention being called to the fact that he was a polygamist, it was undertaken to expel him on that 
 ground. The House, by a very large majority, a very few Members voting to the contrary, decided 
 that notwithstanding he was a polygamist and was living in polygamy, the fact that he had been admitted 
 to a seat and was sitting- there precluded the House from taking any action in reference to expelling 
 him. That is all set forth with great strength and with approval by Mr. Tayler in the Roberts case, 
 as affording an instance of the danger of letting Roberts take his seat, because then there could not be 
 taken into consideration anything that ha;d happened before his election, and it would require a two- 
 thirds vote to expel him instead of a vote of the majority only. 
 
 Mr. Tayler has suggested and argued here* that a majority vote only could be required on the 
 ground that the question is as to the qualifications" of Senator Smoot, and that you can take into con- 
 sideration other qualifications than those fixed by the Constitution itself. But when he came to his 
 argument, he urged that you should not allow Reed Smoot to take his seat because of things that have 
 happened since he took his seat — not since the election merely, but since he took his seat, aye, since 
 this inquiry began; and perhaps the part of his argument upon which he laid the most force and strength 
 was that since this investigation began, and since Senator Smoot learned certain things from the testi- 
 mony of witnesses here, he had not done certain things. 
 
 Now, it would be a remarkable thing if this committee of the Senate should come to the conclusion 
 that when the State of Utah selected this man as one of her Senators, and when the Senate admitted 
 him to his seat, he was not qualified, and established it by facts that have happened since he came 
 into the Senate. 
 
 No report on this case was made by the committe'e during the Fifty-eighth 
 Congress. 
 
 482. Senate case of Reed Smoot, continued. 
 
 While a majority of the Senate committee agreed that Reed Smoot 
 was not entitled to his seat, they could not decide whether he should be 
 excluded or expelled. 
 
 Consideration of the qualifications, the lack of which may render a 
 person unfit to remain a member of the Senate. 
 
 Summary of protest against Reed Smoot as a Senator and his answer 
 thereto. 
 
 A majority of the Senate committee considered Reed Smoot's member- 
 ship in a religious hierarchy that countenanced and encouraged polygamy 
 a reason for removing him from the Senate.
 
 572 PEECEDENTS OF THE HOUSE OF EEPBESENTATIVES. § 482 
 
 Reed Smoot's membership in a religious hierarchy that united church 
 and state contrary to the spirit of the Constitution was held by the ma- 
 jority of the Senate conamittee a reason for vacating his seat. 
 
 Convinced that Reed Smoot had taken an oath of hostility to the na- 
 tion, a majority of the Senate committee held this a reason for vacating 
 his seat as a Senator. 
 
 On June 2, 1906/ in the Senate, Mr. Julius C. Burrows, of Michigan, said: 
 
 Mr. President, I am directed by the Committee on Privileges and Elections to report the action of 
 the committee upon the resolution referred to that committee to inquire into the right and title of Reed 
 Smoot to hold a seat in the Senate of the United States as a Senator from the State of Utah, and to say 
 that the committee reached a conclusion at its last meeting and authorized the chairman to report to the 
 Senate that the senior Senator from Utah is not entitled to a seat in the Senate of the United States. The 
 committee directed the chairman to make a formal report, which will be done some time during the 
 coming week. 
 
 An expression of opinion was had by the committee upon what steps would be necessary to take 
 if the report of the committee was adopted by the Senate that the Senator from Utah is not entitled to 
 a seat, and upon that there was a difference of opinion. The committee were divided as to whether it 
 would have to be followed by a resolution to expel the Senator from Utah or whether a declaration that 
 he is not entitled to a seat would be sulJicient. That will be a matter, however, for the Senate ta 
 determine.^ 
 
 On June 11 ^ the formal report was made in the Senate by Mr. Burrows. 
 
 A preliminary question as to the authority of the Senate was discussed at length: 
 
 Before proceeding to an examination of the protest and answer and the testimony taken by the 
 committee, it may be well to examine, briefly, the authority of the Senate in the premises and the nature 
 and scope of the investigation. 
 
 The Constitution provides (art. 1, sec. 5, par. 1) that "Each House shall be the judge of the elec- 
 tions, returns, and qualifications of its own memliers." It is now well established by the decisions of the 
 Senate in a number of cases that, in order to be a fit representative of a sovereign State of the Union in the 
 Senate of the United States, one must be in all respects obedient to the Constitution and laws of the 
 United States and of the State from which ho comes, and must also be desirous of the welfare of his 
 country and in hearty accord and sympathy with its Government and institutions. If he does not pos- 
 sess these qualifications, if his conduct has been such as to be prejudicial to the welfare of society, of the 
 nation, or its Government, he is regarded as being unfit to perform the important and confidential duties 
 of a Senator, and may be deprived of a seat in the Senate, although he may have done no act of which a 
 court of justice could take cognizance. 
 
 The report then proceeds to discuss the Senate cases of William Blount, John 
 Smith, Jesse D. Bright, Philip F. Thomas, and also the following English cases: 
 
 In the British Parliament the same principle has been recognized in a number of cases and is now 
 fully established. 
 
 In the year 1812 Benjamin Walsh was expelled from the House of Commons as " unworthy and unfit 
 to continue a member of this House," on account of said Walsh having been guilty of "gross fraud and 
 
 ' First session Fifty-ninth Congress. 
 
 ^ Seven members of the committee concurred that Mr. Smoot was not entitled to his seat — Messrs. 
 Julius C. Burrows, of Michigan; Jonathan P. Dolliver, of Iowa; Edward W. Pettus, of Alabama; Fred 
 T. Dubois, of Idaho; Lee S. Overman, of North Carolina; James B. Frazier, of Tennessee, and Joseph W. 
 Bailey, of Texas. A minority of five dissented — Messrs. J. B. Foraker, of Ohio; Albert J. Beveridge, of 
 Indiana; William P. Dillingham, of Vermont; Albert J. Hopkins, of Illinois, and Philander C. Knox, 
 of Pennsylvania. While Mr. Bailey concurred in the majority report he did not agree that Mr. Smoot 
 could be excluded, but favored expulsion. Mr. Chauncey M. Depew, of New York, the thirteenth 
 member of the committee, took no part in the decision. 
 
 3 Senate Report No. 4253.
 
 § 482 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 573 
 
 notorious breach uf trust," although his offense was one "not amounting to felony." (67 Commons 
 Journal, 175-176.) In that case the chancellor of the exchequer said: 
 
 "He could not think that because an act of Parliament did not make a moral crime a legal one the 
 House of Commons should be prevented from taking cognizance of it." (Hansard's Parliamentary 
 Debates, first series, vol. 21, p. 1199.) 
 
 In the year 1814 Sir Thomas Cochrane was expelled from the House of Commons for being concerned 
 in a conspiracy to spread the false report that the French army had been defeated. Napoleon lolled, and 
 that the allied sovereigns were in Paris, the object to be attained by such false report being "to occasion 
 a temporary rise and increase in the prices of the pul)lic Government funds," to the injury of those who 
 should purchase such funds "during such last-mentioned temporary rise and increase in the prices 
 thereof." (69 Commons Journal, 427^33.) 
 
 The report then summarizes as follows the protest against the seating of Mr. 
 Smoot, which protest was signed by "eighteen reputable citizens" of Utah. 
 
 The protest before referred to against the seating of Mr. Smoot as a Senator from the State of Utah 
 is stated in such protest to be "upon the ground and for the reason that he is one of a self -perpetuating 
 body of fifteen men who, constituting the ruling authorities of the Church of Jesus Christ of Latter-Day 
 Saints, or 'Mormon Church,' claim, and by their followers are accorded the right to claim, supreme 
 authority, divinely sanctioned, to shape the belief and control the conduct of those under them in all 
 matters whatsoever, civil and religious, temporal and spiritual, and who, thus uniting in themselves 
 authority in church and state, do so exercise the same as to inculcate and encourage a belief in polygamy 
 and polyganious cohabitation; who countenance and connive at violations of the State law prohibiting 
 the same, regardless of pledges made for the purpose of obtaining statehood and of covenants made with 
 the people of the United States, and who by all the means in their power protect and honor those who, 
 with themselves, violate the laws of the land and are guilty of practices destructive of the family and of 
 the home." 
 
 In support of this protest the protestants make certain charges and assertions, the substance of 
 which is as follows: 
 
 1. The Mormon priesthood, according to the doctrines of that church, is vested with supreme 
 authority in all things spiritual and temporal. 
 
 2. The first presidency and twelve apostles (said Reed Smoot being one of said twelve apostles) 
 are supreme in the exercise of the authority of the Mormon Church in all things temporal and spiritual. 
 In support of this second proposition instances are given of the interference of the first presidency and 
 twelve apostles in the political affairs of the State of Utah, and quotations at length are given from the 
 declarations of officials in the Mormon Church regarding the authority of the leaders in said church to 
 dictate to the membership thereof concerning the political action of said members. 
 
 3 and 4. That the first presidency and twelve apostles of the Mormon Church have not abandoned 
 the principles and practice of political dictation; neither have they abandoned their belief in polygamy 
 and polygamous cohabitation. 
 
 5. That the first presidency and twelve apostles (of whom Reed Smoot is one) also practice or con- 
 nive at and encourage the practice of polygamy, and have, without protest or objection, permitted those 
 who held legislative offices by their will and consent to attempt to nullify enactments against polyga- 
 mous cohabitation. 
 
 6. That the supreme authorities of the Mormon Church, namely, the first presidency and twelve 
 apostles (of whom Mr. Smoot is one), not only connive at violations of the law against polygamy and 
 polygamous cohabitation, but protect and honor the violators of such laws. 
 
 The protest further asserts that the leaders of the Mormon Church (of whom Mr. Smoot is one) are 
 solemnly banded together against the people of the United States in the endeavor of said leaders to 
 baffle the designs and frustrate the attempts of the Government to eradicate polygamy and polygamous 
 cohabitation. 
 
 The protest further charges that the conduct and practices of the first presidency and twelve 
 apostles (of whom Mr. Smoot is one) are well known to be, first, contrary to the public sentiment of the 
 civilized world; second, contrary to express pledges which were given by the leaders of the Mormon 
 Church in procuring amnesty; third, contrary to the express conditions upon which the escheated 
 property of the Mormon Church was returned; fourth, contrary to the pledges given by the representa-
 
 574 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 482 
 
 tives of tliat church in their plea for statehood; fifth, contrary to the pledges required in the enabling 
 act and given in the State constitution of Utah; sixth, contrary to a provision in the constitution of Utah 
 providing that "there shall be no union of church and state, nor shall any church dominate the State 
 or interfere with its functions;" and seventh, contrary to law. The protest concludes by asking that the 
 Senate make inquiry touching the matters stated in said protest. 
 
 This protest is followed by certain charges made by one John L. Leilich under oath, which are in 
 the main of the same tenor and effect as the charges made in the protest, with the additional charge that 
 Mr. Smoot is a polygamist, having a legal wife and a plural wife, and the further charge that Mr. Smoot 
 has, as an apostleof the Mormon Church, taken an oath "of such a nature and character as that he is 
 thereby disqualified from taking the oath of office required of a United States Senator." 
 
 Mr. Smoot made answer, of which the report says: 
 
 To the statements made in the protest and the charges by Mr. Leilich Mr. Smoot made answer, 
 which answer is in the nature of a demurrer to all the charges contained in the protest and to the charges 
 made by Mr. Leilich, except two, namely, that Mr. Smoot is a polygamist and that he is bound by some 
 oath or obligation which is inconsistent with the oath taken by him as a Senator. Both these charges 
 he denies, and further denies, specifically and categorically, the charges made in the protest and by 
 Mr. Ijcilich. 
 
 (1) The majority of the committee in their report first proceed to discuss the 
 nature of the Mormon hierarchy and the encouragement of polygamy and polyga- 
 mous cohabitation by the Mormon authorities, sajring: 
 
 The first reason assigned by the protestants why Mr. Smoot is not entitled to a seat in the Senate 
 is, in effect, that he belongs to a self-perpetuating body of fifteen men who constitute the ruling author- 
 ities of the Church of Latter-Day Saints, or "Mormon Church," so called; that this ruling body of the 
 chiu-ch both claims and exercises the right of shaping the belief and controlling the conduct of the 
 members of that church in all matters whatsoever, civil and religious, temporal and spiritual. It is 
 then alleged that this self-perpetuating body of fifteen men, of whom Mr. Smoot is one, uniting in 
 themselves authority in both church and state, so exercise this authority as to encourage a belief in 
 polygamy as a divine institution and by both precept and example encourage among their followers 
 the practice of polygamy and polygamous cohabitation. 
 
 That the first presidency and twelve apostles of the Mormon Church are a self-perpetuating body 
 of fifteen men seems to be well established by the testimony of the one most competent to speak upon 
 that subject, the president of the Chiu-ch of Latter-Day Saints, Mr. Joseph F. Smith, who testifies, as 
 will be seen on pages 91 and 92 of volume 1 of the printed copy of the proceedings in the investigation, 
 that vacancies occurring in the number of the twelve apostles are filled by the apostles themselves, 
 with the consent and approval of the first presidency. * * * 
 
 It further appears that any one of the twelve apostles may be removed by his fellow-apostles 
 without consulting the members of the church in general. It is also in proof that the first presidency 
 and twelve apostles govern the church by means of so-called "revelations from God," which revelations 
 are given to the membership of the church as emanating from divine authority. It is also shown that 
 those members of the Mormon Church who refuse to obey the revelations so communicated by the 
 priesthood thereby become out of harmony with the chiu'ch and are thus practically excluded from 
 the blessings, benefits, and privileges of membership in the church. 
 
 It is also well established by the testimony that the members of the Mormon Church are governed 
 in all things by the first presidency and twelve apostles; that this authority is extended to the mem- 
 bership through a series and succession of subordinate officials, consisting of presidents of seventies, 
 presiding bishops, elders, presidents of stakes, bishops, and other officials; that one of the chief require- 
 ments by the leaders of the church is that members shall take counsel of their religious superiors in 
 all things whatsoever, whether civil or religious, temporal or spiritual; that the failure to receive 
 and obey counsel in any of these matters subjects the one who refuses to the discipline of the church; 
 that this discipline is administered in the first instance by the subordinate officials, subject to the 
 right to appeal to the higher officials of the church, and ultimately to the first president and twelve 
 apostles. These rules, enforced, as they are, by the discipline of the Mormon Church, constitute the 
 first president and twelve apostles a hierarchy, a body of men at the head of a religious organization
 
 §482 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 575 
 
 governing their followers with absolute and unquestioned authority in all things relating to temporal 
 and political as well as to spiritual affairs. 
 
 The testimony taken before the committee also shows beyond a reasonable doubt that this authority 
 of the first presidency and twelve apostles is so exercised over the members of the Mormon Church 
 as to inculcate a belief in the divine origin of polygamy and its rightfulness as a practice, and also to 
 encourage the membership of that church in the practice of polygamy and polygamous cohabitation. 
 While this is denied on the part of the officials of the church, the truthfulness of the claim of the 
 protestants in this regard is shown by a great number of facts and circumstances, no one of which is 
 perhaps conclusive in itself, but when taken together form a volume of testimony so cogent and con- 
 vincing as to leave no reasonable doubt in the mind that the truth is as stated by the protestants. It 
 is proved without denial that the Book of Doctrine and Covenants, one of the leading authorities of the 
 Mormon Church, and still circulated by that church as a book equal in authority to the Bible and 
 the Book of Mormon, contains the revelation regarding polygamy, of which the following is a part: 
 
 "61. And again, as pertaining to the law of the priesthood: If any man espouse a virgin and 
 desires to espouse another and the first give her consent, and if he espouse the second, and they are 
 virgins and have vowed to no other man, then he is justified — he can not commit adultery, for they 
 are given unto him; for he can not commit adultery with that that belongeth to him and to no one else. 
 
 "62. And if he have ten virgins given unto him by this law he can not commit adultery, for 
 they belong to him and they are given unto him; therefore is he justified. 
 
 "63. But if one or either of the ten virgins, after she is espoused, shall be with another man, she 
 has committed adultery and shall be destroyed, for they are given unto him to multiply and replenish 
 the earth, according to my commandment, and to fulfill the promise which was given by my Father 
 before the foundation of the world; and for their exaltation in the eternal worlds, that they may bear 
 the souls of men; for herein is the work of my Father continued, that he may be glorified. 
 
 "64. And again, verily, verily, I say unto you, if any man hath a wife who holds the keys of 
 this power and he teaches unto her the law of my priesthood as pertaining these things, then shall 
 she believe and administer unto him or she shall be destroyed, said the Lord your God, for I will 
 destroj' her; for I will magnify my name upon all those who receive and abide in my law. 
 
 "65. Therefore, it shall be lawful in me, if she receives not this law for him to receive all things 
 whatsoever I, the Lord his God, will give unto him, because she did not minister unto him according 
 to my word; and she then becomes the transgressor.; and he is exempt from the law of Sarah, who 
 ministered unto Abraham according to the law when I commanded Abraham to take Hager to wife." 
 
 It is also shown that numerous other publications of the Mormon Church are still circulated 
 among the members of that church with the knowledge and by the authority of the church officials, 
 which contain arguments in favor of polygamy. The Book of Doctrine and Covenants is not only 
 stUl put forth to the members of the church as authoritative in all respects, but the first presidency 
 and twelve apostles have nevBr incorporated therein the manifesto forbidding the practice of polygamy 
 and polygamous cohabitation, nor have they at any time or in any way qualified the reputed revelation 
 to Joseph Smith regarding polygamy. And this Book of Doctrine and Covenants, containing the 
 polygamic revelation, is regarded by Mormons as being of higher authority than the manifesto suspend- 
 ing polygamy. 
 
 Bearing in mmd tflie authority of the first presidency and twelve apostles over the whole body of 
 the Mormon Church, it is very evident that if polygamy were discountenanced by the leaders of that 
 church it would very soon be a thing of the past among the members of that church. On the contrary, it 
 appears that since the admission of Utah into the Union as a State the authorities of the Mormon Church 
 have countenanced and encouraged the commission of the crime of polygamy Instead of preventing it, 
 as they could easily have done. 
 
 A sufficient number of specific instances of the taking of plural wives since the "manifesto of 1890," 
 so called, have been shown by the testimony as having taken place among officials of the Mormon Church 
 to demonstrate the fact that the leaders in this church, the first presidency and the twelve apostles, 
 connive at the practice of taking plural wives, and have done so ever since the manifesto was issued 
 which purported to put an end to the practice. 
 
 The report then goes on to cite specific instances as shown in the testimony. 
 The committee also charged that the Mormon Church had suppressed other 
 testimony, and had denied the committee access to records.
 
 576 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 482 
 
 The report continues : 
 
 Aside from this it was shown by the testimony, and in such a way that the fact could not possibly 
 be controverted, that a majority of those who give the law to the Mormon Church are now, and have been 
 for years, living in open, notorious, and shameless polygamous cohabitation. The list of those who are 
 thus guilty of violating the laws of the State and the rules of public decency is headed \>y Joseph F. 
 Smith, the first president, "prophet, seer, and revelator" of the Mormon Church. 
 
 The committee cites names in support of this and continues: 
 
 These facts abundantly justify the assertion made in the protest that "the supreme authorities in 
 the church, of whom Senator-elect Reed Smoot is one, to wit, the first presidency and twelve apostles, 
 not only connive at violation of, but protect and honor the violators of the laws against polygamy and 
 polygamous cohabitation." 
 
 It wUl be seen by the foregoing that not only do the first presidency and twelve apostles encourage 
 polygamy by precept and teaching, but that a majority of the members of that body of rulers of the 
 Mormon people give the practice of polygamy stdl further and greater encouragement by living the lives 
 of polygamists, and this openly and in the sight of all their followers in the Mormon Church. It can not 
 be doubted that this method of encouraging polygamy is much more efficacious than the teaching of that 
 crime by means of the writings and publications of the leaders of the church, and this upon the familiar 
 principle that "actions speak louder than words." 
 
 And not only do the president and a majority of the twelve apostles of the Mormon Church practice 
 polygamy, but in the case of each and every one guilty of this crime who testified before the committee 
 the determination was expressed openly and defiantly to continue the commission of this crime without 
 regard to the mandates of the law or the prohibition contained in the manifesto. And it is in evidence that 
 the said first president, addressing a large concourse of the members of the Mormon Church at the taber- 
 nacle in Salt Lake City in the month of June, 1904, declared that if he were to discontinue the polyga- 
 mous relation with his plural wives he should be forever dammed, and forever deprived of the com- 
 panionship of God and those most dear to him throughout eternity. Thus it appears that the "prophet, 
 seer, and revelator" of the Mormon Church pronounces a decree of eternal condemnation throughout all 
 eternity upon all members of the Mormon Church who, having taken plural wives, fad to continue the 
 polygamous relation. So that the testimony upon that subject, taken as a whole, can leave no doubt 
 upon any reasonable mind that the allegations in the protest are true, and that those who are in authority 
 in the Mormon Church, of whom Mr. Smoot is one, are encouraging the practice of polygamy among the 
 members of that church, and that polygamy is being practiced to such an extent as to call for the severest 
 condemnation in all legitimate ways. 
 
 THE MANIFESTO A DECEPTION. 
 
 Against these facts the authorities of the Mormon Church urge that in the year 1890 what is gen- 
 erally termed "a manifesto" was issued by the first presidency of that church, suspending the practice 
 of polygamy among the members of that church. It may be said in the first place that this manifesto 
 misstates the facts in regard to the solemnization of plural marriages within a short period preceding 
 the issuing of the manifesto. It now appears that in a number of instances plural marriages had been 
 solemnized in the Mormon Church, and, in the case of those high in authority in that church, within a 
 very few months preceding the issuing of the manifesto. 
 
 It is also observable that this manifesto in no way declares the principle of polygamy to be wrong 
 or abrogates it as a doctrine of the Mormon Church, but simply suspends the practice of polygamy to 
 be resumed at some more convenient season, either with or without another revelation. It is now 
 claimed by the first president and other prominent officials of the Mormon Church that the manifesto 
 was not a revelation, but was, at the most, an inspired document, designed "to meet the hard conditions 
 then confronting" those who were practicing polygamy and polygamous cohabitation, leaving what the 
 Mormon leaders are pleased to term "the principle of plural marriage" as much a tenet of their faith 
 and rule of practice when possible, as it was before the manifesto was issued. * * * 
 
 And one of the twelve apostles has declared the fact to be that "the manifesto is only a trick to 
 beat the devil at his own game." Further than this, it is conceded by all that this manifesto was 
 intended to prohibit polygamous cohabitation as strongly as it prohibited the solemnization of plural
 
 § 48ii POLYGAMY AND OTIIEE CRIMES AS DISQU.ALIFICATIONS. 577 
 
 marriages. In the case of polygamous cohabitation, the manifesto has been wholly disregarded by the 
 members of the Mormon Church. It is hardly reasonable to expect that the members of that church 
 would have any greater regard for the prohibition of plural marriage. 
 
 The contention that the practice of polygamy is rightful as a religious ceremony and therefore 
 protected by that provision of the Constitution of the United States which declares that -'Congress shall 
 make no law respecting an establishment of religion or prohibiting the free exercise thereof," ought to 
 be forever set at rest by the repeated decisions of the Supreme Court of the United States. In the 
 case of the Mormon Church v. The United States, Justice Bradley, in delivering the opinion of the court, 
 said : 
 
 "One pretense for this obstinate course is that their belief in the practice of polygamy, or in the 
 right to indulge in it, is a religious belief, and therefore under the protection of the constitutional guaranty 
 of r-eligious freedom. This is altogether a sophistical plea. No doubt the Thugec of India imagined 
 that their belief in the right of assassination was a religious belief; but their thinking so did not make 
 it so. The practice of suttee by the Hindu widows may have sprung from a supposed religious convic- 
 tion. The offering of human sacrifices by our own ancestors in Britain was no doubt sanctioned by 
 an equally conscientious impulse. But no one on that account would hesitate to lirand these practices 
 now as crimes against society and obnoxious to condemnation and punishment by the civil authority." 
 
 In the case of Davis v. Beason Justice Field, in delivering the opinion of the court, said: 
 
 "Bigamy and polygamy are crimes by the laws of all civilized and Christian countries. They are 
 crimes by the laws of the United States, and they are crimes by the laws of Idaho. They tend to destroy 
 the purity of the marriage relation, to disturb the peace of families, to degrade woman, and to debase 
 man. Few crimes are more pernicious to the best interests of society and receive more general or more 
 desei-s'ed punishment. To extend exemption from punishment for such crimes would be to shock 
 the moral judgment of the community. To call their advocacy a tenet of religion is to offend the com- 
 mon sense of mankind." 
 
 ONE LIVING IN POLTGAMOUS COHABITATION IS IN LAW A POLYGAMIST. 
 
 The members of the fkst presidency and twelve apostles of the Mormon Church claim that there 
 is a distinction between what they term polygamy — that is, the contracting of plural marriages — and 
 polygamous cohabitation with plural wives. But under the circumstances his distinction is little 
 short of ridiculous. As is demonstrated by the testimony, the so-called manifesto was aimed at polyg- 
 amous cohabitation as well as against the taking of plural wives, and it is the veriest sophistry to contend 
 that open, notorious cohabitation with plural wives is less offensive to public morals than the taking of 
 additional wives. Indeed, it is the testimony of some of those who reside in communities that are 
 cursed by the evils of polygamy that polygamous cohabitation is fully as offensive to the sense of decency 
 of the inhabitants of those communities as would be the taking of plural wives. 
 
 And this excuse of the Mormon leaders is as baseless in law as it is in morals. In the case of Murphy 
 V. Ramsay, decided by the Supreme Court of the United States and reported in the United States Supreme 
 Court Reports, volume 114, page 1.5, it was decided that any man is a polygamist who maintains the 
 relation of husband to a plurality of wives, even though in fact he may cohabit with only one. The 
 court further held in the same case that a man occupying this relation to two or more women can only 
 cease to be a polygamist when he has finally and fully dissolved the relation of husband to several wives. 
 In other words, there is and can be no practical difference in law or in morals between the offense of 
 taking plural wives and the offense of polygamous cohabitation. The same doctrine is affirmed in the 
 case of Cannon v. United States (116 U. S. Supreme Court Reports, p. 5.5). 
 
 The minority views admit the existence of polygamous cohabitation, but say, 
 after quoting testimony in support of their view: 
 
 In other words, the conditions existing in Utah since Reed Smoot became an official of the Mormon 
 Church in 1900 have been such that non-Mormons and Mormons alike have acquiesced in polygamous 
 cohabitation on the part of those who married before the manifesto of 1890, as an evil that could best 
 be gotten rid of by simply tolerating it until in the natural course of events it shall have passed out of 
 existence. 
 
 5904— VOL 1—07 37
 
 578 PRECEDENTS OF THE HOUSE OF KEPBESENTATIVES. § 482 
 
 (2) The majority report then proceeds to urge that Mr. Smoot is responsible 
 
 for the conduct of the organization to which he belongs : 
 
 It is urged in behalf of Mr. Smoot that, conceding it to be true that the first president and some 
 of the apostles are living in polygamy and that some of the leaders of the Mormon Church encourage 
 polygamous practices, Mr. Smoot himself is not a polygamist, does not practice polygamy, and that 
 there is no evidence that he has personally and individually encour£^ed the practice of polygamy by 
 members of the Mormon Church, and that he ought not to be condemned because of the acts of his 
 associates. This position is wholly untenable. Mr. Smoot is an inseparable part of the governing 
 body of the Mormon Church — the first presidency and twelve apostles — and those who compose that 
 organization form a unit, an entirety, and whatever is done by that organization is the act of each and 
 every member thereof, and whatever policy is adopted and pursued by the body which controls the 
 Mormon Church Mr. Smoot must be held to be responsible for as a member of that body. That one may 
 be legally, as well as morally, responsible for unlawful acts which he does not himself commit is a rule 
 of law too elementary to require discussion. "What one does by another he does by himself" is a 
 maxim as old as the common law. And as the first presidency and twelve apostles of the Mormon 
 Church have authority over the spiritual affairs of the members of that church, it follows that such 
 governing body of said church has supreme authority over the members of that church in respect to 
 the practice of polygamy and polygamous cohabitation. 
 
 In England in former years and under the canon law, matters of marriage, divorce, and legiti- 
 macy were under the jurisdiction of the ecclesiastical courts of the Kingdom, in which the punishment 
 was in the nature of a spiritual penalty for the good of the soul of the offender, this penalty in many 
 cases being that of excommunication or expulsion from the church. (1 Blackstone's Commentaries, 431; 
 3 Blackstone's Commentaries, 92; 4 Blackstone's Commentaries, 153 and note; Reynolds r. United States, 
 98 U. S., 145, 164-165.) And in later years, while the civil law now prohibits and punishes bigamy, 
 the authorities of every Christian church in this country take cognizance of matrimonial affairs and by 
 the authority of the church in spiritual matters prevent and punish by censure or expulsion any infrac- 
 tion of the rules of the church regarding marriage. 
 
 The testimony taken upon this investigation shows beyond controversy that the authority of the 
 first presidency and the twelve apostles of the Mormon Church over the members of said church is such 
 that were the said first presidency and twelve apostles to prohibit the practice of polygamy and polyga- 
 mous cohabitation by its members and abandon the practice themselves and expel from the church all 
 who should persist in the practice those offenses would instantly cease in that church. And the fact 
 that not a single member of the Mormon Church has ever fallen into disfavor on account of polygamous 
 practices is conclusive proof that the ruling authorities of that church countenance and encourage 
 polygamy. 
 
 The conduct of Mr. Smoot in this regard can not be separated from that of his associates in the 
 government of the Mormon Church. Whatever his private opinions or his private conduct may be, 
 he stands before the world as an integral part of the organization which encourages, counsels, and 
 approves polygamy, which not only fails to discipline those who break the laws of the country, but, 
 on the contrary, loads with honors and favors those who are among the most noted polygamists within 
 the pale of that church. 
 
 It is an elementary principle of law that where two or more persons are associated together in an 
 act, an organization, an enterprise, or a course of conduct which is in its character or purpose unlawful 
 the act of any one of those who are thus associated is the act of all, and the act of any number of the 
 associates is the act of each one of the others. 
 
 An eminent legal authority says: 
 
 "Every person entering into a conspiracy or common design already formed is deemed in law a 
 party to all acts done by any of the other parties before or afterwards in furtherance of the common 
 design. The principle on which the acts and declarations of other conspirators, and acts done at 
 different times, are admitted in evidence against the persons prosecuted is that by the act of conspiring 
 together the conspirators have jointly assumed to themselves, as a body, the attribute of individuality 
 BO far as regards the prosecution of the common design, thus rendering whatever is done or said by 
 anyone in furtherance of that design a part of the res gesta; and therefore the act of all. (2 Greenleaf 
 on Evidence, sees. 93, 94. See also Commonwealth r. Warren, 6 Mass., 74; People v. Mather, 4 Wend.,
 
 § 482 POLYGAMY AND OIHEfi CBIMES AS DISQUALIFICATIONS, 579 
 
 229, 260; People v. Peckens, 153 N. Y., 576, 586, 593; United States v. Gooding, 12 Whealon, 459, 469; 
 .\merican Fur Company i'. United States, 2 Peters, 358, 365; Nudd et al. v. Burrows, 91 U. S., 426, 438; 
 United States r. Mitchell. 1 Hughes, 439 (Federal Cases, No. 15790); Stewart r. Johnson, 3 Har. (X. J.), 
 87; Hinchman v. Ritchie, Brightley's N. P. (Pa.), 143; Freeman v. Stine, 34 Leg. Int. (Pa.), 95; Spies 
 et al. V. People, 122 lUinois, 1.)" 
 
 The case last cited illustrates this principle more forcibly than any of the others referred to. In 
 that case, which is commonly known as "the anarchists' case," there was, as to some of the defendants, 
 very little evidence, and as to others of the defendants no satisfactory evidence that they were present 
 at the commission of the murder with which they were charged, or advised or intended the murder 
 which was committed by an unknown person. But it was proved that the defendants were members 
 of an organization known as the International Association of Chicago, having for its object the destruc- 
 tion of the law and government and incidentally of the police and militia as the representatives of law 
 and government, and that some of the defendants had, by spoken and printed appeals to workingmen 
 and others, urged the use of force, deadly weapons, and dynamite in resistance to the law and its officers. 
 
 In denying the motion for a new trial in the anarchists' case the judge who presided at the trial 
 used the following language: 
 
 "Now on the question of the instructions, whether these defendants, or any of them, anticipated 
 or expected the throwing of the bomb on the night of the 4th of May is not a question which I need 
 to consider, because the conviction can not be sustained, if that is necessary to a conviction, however 
 much evidence of it there may be, because the instructions do not go upon that ground. The jury 
 were not instructed to find the defendants guilty if they believed they participated in the throwing 
 of that bomb, or advised or encouraged the throwing of that bomb, or anything of that sort. Conviction 
 has not gone upon the ground that they did have any personal participation in the particular act which 
 caused the death of Degan, but the conviction proceeds upon the ground, under the instructions, that 
 they had generally by speech and print advised large classes of the people, not particular individuals, 
 but large classes, to commit murder, and have left the commission, time, and place to the individual 
 will and whim, or caprice, or whatever it may be, of each individual man how listened to their advice 
 and, influenced by that advice, somebody not known did throw the bomb which caused Degan's 
 death." (Century Magazine, April, 1893, p. 835.) 
 
 It will be seen by the decision of the court upon the motion for a new trial in the case of Spies 
 et al. r. People that the anarchists were not convicted upon the ground that they had participated in the 
 murder of which they were convicted. Whether they were or were not participants in the commission 
 of this crime was not the main question at issue. They were convicted because they belonged to an 
 organization which, as an organization, advised the commission of acts which would lead to murder. 
 
 Of like import is the decision in the case of Davis i . Beason, decided by the Supreme Court of the 
 United States in 1889, the decision being reported in volume 133, L'nited States Supreme Cotut Reports, 
 page 333. At the time of this decision the Revised Statutes of the State of Idaho provided that no 
 person "who is a member of any order, organization, or association which teaches, advises, counsels, or 
 encourages its members, devotees, or any other persons to commit the crime of bigamy or polygamy, or 
 any other crime defined by law, either as a rite or ceremony of such order, organization, or association or 
 otherwise, is permitted to vote at any election or to hold any position or office of honor, trust, or profit 
 within this Territorj'." 
 
 This provision of law the Supreme Court of the United States held to be constitutional and legal. 
 It will be observed that this act disfranchises certain persons and makes them ineligible to any position 
 or office of honor, trust, or profit, not for committing the crime of polygamy, nor for teaching, advising, 
 counseling, or encouraging others to commit the crime, but because of their membership in an organiza- 
 tion which teaches, advises, counsels, and encourages others to commit the crime of polygamy. In 
 Wooley V. Watkins (2 Idaho Rep., 555, 566), the court say: 
 
 "Orders, organizations, and associations, by whatever name they may be called, which teach, 
 advise, counsel, or encotirage the practice or commission of acts forbidden by law, are criminal organi- 
 zations. To become and continue to be members of such organizations or associations are such overt 
 acts of recognition and participation as make them particeps criminis and as guilty, in contemplation 
 of criminal law, as though they actually engaged in furthering their uidawful objects and purposes." 
 (■See also Innis v. Bolton, 2 Idaho Rep., 407, 414.)
 
 580 PBECEDENTS OF THE HOUSE OF BEPEESENTATIVES. § 482 
 
 It being a fact that the first presidency and the twelve apostles of the Mormon Church teach, advise, 
 counsel, and encourage the members of that church to practice polygamy and polygamous cohabitation, 
 which are contrary to both law and morals, and Mr. Smoot, being a member of that organization, he 
 must fall under the same condemnation. 
 
 And the rule in civil cases is the same as that which obtains in the administration of criminal law. 
 One who is a member of an association of any nature is bound by the action of his associates, whether he 
 favors or disapproves of such action. He can at any time protect himself from the consequences of any 
 future action of his associates by withdrawing from the association, but while he remains a member of 
 the association he is responsiljle for whatever his associates may do. 
 
 But the complicity of Mr. Smoot in the conduct of the leaders of the Mormon Church in encouraging 
 polygamy and polygamous cohabitation does not consist wholly in the fact that he is one of the governing 
 body of that church. By repeated acts, and in a number of instances, Mr. Smoot has, as a member of 
 the quorum of the twelve apostles, given active aid and support to the members of the first presidency and 
 twelve apostles in their defiance of the laws of the State of Utah and of the laws of common decency, 
 and their encouragement of polygamous practices by both precept and example. 
 
 It is shown by the testimony of Mr. Smoot himself that he assisted in the elevation of Joseph F. 
 Smith to the presidency of the Mormon Church. That he has since repeatedly voted to sustain said 
 Joseph F. Smith, and that he so voted after full knowledge that said Joseph F. Smith was living in 
 polygamous cohabitation and had asserted his intention to continue in this course in defiance of the laws 
 of God and man. He also assisted in the selection of Heber J. Grant as president of a mission when it 
 was a matter of common notoriety that said Heber J. Grant was a polygamist. He voted for the election 
 of Charles W. Petirose as an apostle of the Mormon Church after testimony had been given in this inves- 
 tigation showing him to be a polygamist. It is difficult to perceive how Mr. Smoot could have given 
 greater encouragement to polygamy and polygamous cohabitation than by thus assisting in conferring 
 one of the highest honors and offices in the Mormon Church on one who had been and was then guilty 
 of these crimes. As trustee of an educational institution he made no protest against the continuance in 
 office of Benjamin Cluff, jr., a noted polygamist, as president of that institution, nor made any effort 
 to discover the truth that said Cluff had taken another plural wife long after the manifesto. Nor did he 
 make any protest, as such trustee, against the election of George H. Brimhall, another polygamist, in 
 the place of Benjamin Cluff, jr. 
 
 Since his election as an apostle of the Mormon Church Mr. Smoot has been intimately associated 
 with the first president and with those who — with himself — constitute the counsel of the twelve apostles. 
 The fact that many of these officials were living in polygamous relations with a number of wives was a 
 matter of such common knowledge in the community that it is incredible that Mr. Smoot should not 
 have had sufficient notice of this condition of affairs to at least have put him on inquiry. If he did not 
 know of these facts it was because he took pains not to lie informed of them. At no time has he uttered 
 a syllable of protest against the conduct of his associates in the leadership of the Mormon Church, but, 
 on the contrary, has sustained them in their encouragement of polygamy and polygamous cohabitation 
 both by his acts (as hereinbefore set forth) and by his silence. In the judgment of the committee, Mr. 
 Smoot is no more entitled to a scat in the Senate than he would be if he were associating in polygamous 
 cohabitation with a plurality of wives. 
 
 The minority of the committee take issue with this conclusion: 
 
 The testimony on this point is also carefully collated and analyzed in the annexed statement. 
 
 It will be found by an examination of that testimony that he has never at any time, and particularly 
 he has not since the manifesto of 1890, countenanced or encouraged plural marriages; but that, on the 
 contrary, he has uniformly upheld the policy of the church, as announced by that proclamation, by 
 actively advocating and exerting his influence to effect a complete discontinuance of such marriages, 
 and that in the few instances established by the testimony where plural marriages and polygamous 
 cohabitation, as a result of them, have occurred since 1890 they have been without any encouragement, 
 countenance, or approval whatever on his part. 
 
 As to polygamous cohabitation in consequence of plural marriages entered into before the manifesto 
 of 1890, there is no testimony to show that he has ever done more than silently acquiesce in this offense 
 against law. In view of his important and influential position in the church, this acquiescence might be
 
 § 482 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 581 
 
 regarded as inexcusable if it were not for the peculiar circumstances attending the commission of this 
 offense. 
 
 To understand these circumstances it is necessary to recall some historical facts, among which are 
 some that indicate that the United States Government is not free from responsibility for these violations 
 of the law. Instead of discountenancing and prohibiting polygamy when it was first proclaimed and 
 practiced, the Congress remained silent and did nothing in that behalf. WTiile Congress was thus at least 
 manifesting indifference. President Fillmore and the Senate of the United States, in September, 1850, 
 gave both recognition and encouragement by the appointment and confirmation of Brigham Young, the 
 then head of the church and an open and avowed advocate and representative of polygamy, to be 
 governor of the Territory of Utah. WTien his term of office expired under this appointment he was 
 reappointed by President Pierce and again confirmed by the Senate. 
 
 There was no legislation or action of any kind by Congress on this subject until the act of July 1, 
 1862, which was in language as well as legal effect nothing more than a prohibition of bigamy in the 
 Territories and other places over which the United States had jurisdiction. 
 
 After this act for a period of twenty years plural marriages and polygamous cohabitation continued 
 in the Territory of Utah practically unrestrained and without any serious effort of the part of the United 
 States to restrict the same. 
 
 Finally, in response to an aroused public sentiment. Congress passed the act of March 22, 1882, by 
 which it prohibited both plural marriages and polygamous cohabitation, but legitimized the children 
 of all such marriages born prior to the 1st day of January, 1883. Under this act prosecutions were inau- 
 gurated to enforce its provisions, but it was soon demonstrated that public sentiment was such that only 
 partial and very unsatisfactory success could be secured. 
 
 Then followed what is known as the "Edmunds-Tucker Act" of March 3, 1887, by which, among 
 other things, the rules of evidence were so changed as to make it less difficult to secure evidence in 
 prosecutions for polygamy and polygamous cohabitation. Again, by the terms of this act all the chil- 
 dren born within twelve months after its passage were legitimized. 
 
 This statute was upheld by the Supreme Court of the United States, and efforts to prosecute such 
 offenses were redoubled, with such success that on the 26th day of September, 1890, the then president 
 of the church, Wilford Woodruff, issued what is known as the "manifesto of 1890," forbidding further 
 plural marriages. So far as the testimony discloses there have been but few plural marriages since, 
 perhaps not more than the bigamous marriages during the same period among the same number of non- 
 Mormons. 
 
 The evidence shows that there were at this time about 2,400 polygamous families in the Territory 
 of Utah. This number was reduced to five hundred and some odd families in 1905. A few of these 
 families may have removed out of the State of Utah, but so far as the testimony discloses the great 
 reduction in number has been on account of the deaths of the heads of these families. It will be only a 
 few years at most until all will have passed away. This feature of the situation has had a controlling 
 influence upon public sentiment in the State of Utah with respect to the prosecutions for polygamous 
 cohabitation since the manifesto of 1890. 
 
 Whether right or wrong, when plural marriages were stopped and the offense of polygamy was 
 confined to the cohabitation of those who had contracted marriages before 1890, and particularly those 
 who had contracted marriages before the statutes of 1887 and 1882, the disinclination to prosecute for 
 these offenses became so strong, even among the non-Mormons, that such prosecutions were finally 
 practically abandoned. 
 
 It was not alone the fact that if no further plural marriages were to be contracted, polygamy would 
 necessarily in the course of time die out and pass away, but also the fact that Congress having, by the 
 statutes of 1882 and 1887, specifically legitimized the children of these polygamous marriages, it was 
 inconsistent, if not unwise and impossible, in the opinion of even the non-Mormons, to prohibit the father 
 of such children from living with, supporting, educating, and caring for them; but if the father was thus 
 to live with, support, educate, and care for the children, it seemed harsh and unreasonable to exclude 
 from this relationship the mothers of the children. 
 
 Such are some of the reasons assigned for the lack of a public sentiment to uphold successful prose- 
 cutions for polygamous cohabitation after 1890. It is unnecessary to recite others, for it is enough to say 
 that whatever the real reason or explanation may be, the fact was that after 1890 it became practically 
 impossiVjle to enforce the law against these offenses, except in flagrant cases.
 
 582 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 482 
 
 Such waa the situation when the Territory applied for admission to the Union and Congress passed 
 the enabling act of July 16, 1894, by which the people of Utah, in order to entitle them to admission into 
 the Union, on terms prescribed by Congress, were required to incorporate in their constitution a proviso 
 that "polygamous or plural marriages are forever prohibited;" not polygamous cohabitation, it will be 
 observed, but only polygamous marriages. The testimony shows that there was a common understand- 
 ing both in Congress and Utah that there were not only to be no more plural marriages, but that prosecu- 
 tions for polygamous cohabitation had become so difficult that there was a practical suspension of them, 
 and that time was the only certain solution of the perplexing problem. 
 
 This sentiment has not only ever since continued, but with the constant diminution of the num- 
 ber of polygamous families and the rapid approach of the time when all will have passed away there 
 has come a natural strengthening of the sentiment. The testimony in this respect is set forth at length 
 in the annexed statement, but we make the following quotations in order that it may appear in this 
 summary that there is this common disposition among non-Mormons as well as Mormons. 
 
 Judge William McCarthy, of the supreme court of Utah, a non-Mormon and an uncompromising 
 opponent of polygamy, who has held many important offices of trust, among others that of assistant 
 United States attorney for Utah, and who, as such, was charged with the duty of prosecuting these 
 offenses, testified as follows: 
 
 "I prosecuted them (offenses of polygamous cohabitation) before the United States commissioners 
 up until 1893, when the United States attorney refused to allow my accounts for ser\ ices for that kind 
 of work, and then I quit and confined my investigations before the grand jur>- in those cases." 
 
 In explanation of his action he testified — we quote from the annexed statement: 
 
 "That he found the press was against the prosecutions; that the public prosecutor, whose attention 
 he invited to the matter, refused to proceed. From this and other facts which came to his knowledge, 
 Judge McCarthy reached the conclusion that the public sentiment was against interfering with men in 
 their polygamous relations who had married before the manifesto." 
 
 The minority quote other testimony, including that of Mr. Dubois, one of 
 those concurring in the majority report, as justification for their opposition to the 
 conclusions of the majority on this point. 
 
 (3) The majority report next discusses at length the participation in and domi- 
 nation of the Mormon Church in secular affairs, especially in political matters: 
 
 A careful examination and consideration of the testimony taken before the committee in this 
 investigation leads to the conclusion that the allegations in the protest concerning the domination of the 
 leaders of the Mormon Church in secular affairs are true, and that the first presidency and twelve apostles 
 of the Church of Jesus Christ of Latter-Day Saints exercise a controlling influence over the action of 
 the members of that church in secular affairs as well as in spiritual matters; and that, contrary to the 
 principles of the common law under which we live and the constitution of the State of Utah, the said 
 first presidency and twelve apostles of the Mormon Church dominate the affairs of the State and con- 
 stantly interfere in the performance of its functions. The domination by the leaders of the church 
 under their claim to exercise divine authority in all matters is manifested in a general way in 
 innumerable instances. 
 
 The right to do so is openly claimed by those who profess to speak in behalf of the church. As 
 late as February 25, 1904, one of the twelve apostles, in a public address, said "that from the view point 
 of the gospel there could be no separation of temporal and spiritual things, and those who object to 
 church people advising and taking part in temporal things have no true conception of the gospel of 
 Christ and the mission of the church." 
 
 The method by which the first presidency and twelve apostles of the Mormon Church direct aJl 
 the temporal affairs of the members of that church under the claim that such direction is by divine 
 authority is by requiring the members of the church in all their affairs, both spiritual and temporal, 
 and especially the latter, to "take counsel." This means that they are to be advised by their imme- 
 diate superiors. These superiors in turn take their instructions from those above them, and so on back 
 to the point whence most, if not all, these directions emanate — that is, the first presidency and twelve 
 apostles.
 
 § 482 POLYGAMY AND OTHER CBIMES AS DISQUALIFICATIONS. 583 
 
 The report cites at length instances of this participation in secular affairs, and 
 then says of political domination : 
 
 But it is in political affairs that the domination of the first presidency and twelve apostles of the 
 Mormon Chvirch is most efficacious and most injurious to the interests of the State. The constitution 
 of the State of Utah provides "There shall be no union of church and state, nor shall any church domi- 
 nate the State or interfere with its functions." (Vol. 1, p. 25.) Notwithstanding this plain provision 
 of the constitution of Utah, the proof offered on the investigation demonstrates beyond the possibility 
 of doubt that the hierarchy at the head of the Mormon Church has for years past formed a perfect union 
 between the Mormon Chiu-ch and the State of Utah, and that the church through its head dominates 
 the affairs of the State in things both great and small. Even before statehood was an accomplished 
 fact, and while the State was in process of formation, and afterwards, during the sessions of the first and 
 succeeding legislatures, it was notorious that a committee appointed by the leaders of the Mormon 
 Church was supervising the legislation of the State. 
 
 At about the same time, or shortly prior thereto, it became known throughout Utah that the leading 
 officials of the Mormon Church desired that the voters belonging to that church should so divide on 
 political lines that about one-half should belong to one of the great political parties of the nation and the 
 other half to the other party, leaving a considerable nvunber unassigned to either party, so that their 
 votes could be cast for one party or the other, as might be necessary to further the interests of that 
 church. 
 
 It is, of course, intended by the leaders of the church that this influence shall be secretly exerted, 
 and this is in many cases, if not in most cases, easUy accomplished by means of the perfect machinery 
 of the church, which has been adverted to, by which the wUl of the first presidency and twelve apostles 
 is transmitted through ecclesiastical channels, talked over in prayer circles of the high councils of the 
 church, and then promulgated to the members of the church as "the will of the Lord." Notwith- 
 standing this attempt at secrecy, it has for many years been a matter of common knowledge among the 
 people of those States in which the Mormon Church is strongest that political influence is being con- 
 tinually exerted in the matter of State and lower municipal officials. As was said by one of the wit- 
 nesses who testified on the investigation, "WTieneverthey indorse a man, he will beelected. Whenever 
 they put upon him the seal of their disapprobation, he will not be." 
 
 The report also at this point cites instances at length, and then continues: 
 
 Not only is Mr. Smoot one of those by and through whom the political affairs of Utah are dominated, 
 but his election to the Senate was, it is believed, the result of such domination. 
 
 When Mr. Smoot concluded to become a candidate for the Senate he was careful to obtain the 
 "consent" of the first presidency and twelve apostles to his candidacy. But this so-called "consent" 
 of the rulers of the church was naturally regarded by the people of Utah, who were familiar with the 
 ways of the Mormon high-priesthood, as being, under the circumstances, equivalent to an indorsement 
 and made it impossible for anyone else to become an aspirant for the same position with any hope of 
 success. 
 
 A PRACTICAL UNION OF CHURCH AND STATE. 
 
 The fact that the adherents of the Mormon Church hold the balance of power in politics in some 
 of the States enables the first presidency and twelve apostles to control the political affairs of those 
 States to any extent they may desire. Thus a complete union of church and state is formed. This 
 is in accordance with the teachings of the priesthood of the Mormon Church, as promulgated in the 
 writings of men of high authority in the church, to the effect that the church is supreme in all matters 
 of Government as well as in all things pertaining to the private life of the citizen. In one of a series of 
 pamphlets, "On the Doctrines of the Gospel," by Apostle Orson Pratt, it is affirmed: 
 
 "The kingdom of God is an order of government established by divine authority. It is the only 
 legal government that can exist in any part of the universe. All other governments are illegal and 
 unauthorized. God having made all beings and worlds has the supreme right to govern them by His 
 own laws and by officers of His own appointment. Any people attempting to govern themselves and 
 by laws of their own making and by officers of their own apjwintment are in direct rebellion against 
 the Kingdom of God." (Vol. 1, p. 666.)
 
 584 PEECEDENTS OF THE HOUSE OF EEPBESENTATIVES. § 482 
 
 The union of church and state in those States under the domination of the Mormon leaders is most 
 abhorrent to our free institutions. John Adams declared that the attempt of the Church of England to 
 extend its jurisdiction over the colonies "contributed as much as any other cause to arouse the attention, 
 not only of the inquiring mind, but of the common people, and to urge them to close thinljing of the 
 constitutional authority of Parliament over the colonies"' and to bring on the war of independence. 
 After the colonies had achieved their independence, the complete enfranchisement of the church 
 from the control of the state and of the state from the control of the church was brought about through 
 the efforts of men like Thomas Jefferson and James Madison in Virginia and those of almost equal prom- 
 inence in other States. And thus the natural desire of the people of this nation for the entire separation 
 of church and state was incorporated in the Constitution of the United States by the first amendment 
 to that instrument. 
 
 The right to worship God according to the dictates of one's own conscience is one of the most 
 sacred rights of every American citizen. No less sacred is the right of every citizen to vote according 
 to his conscientious convictions without interference on the part of any church, religious organization, 
 or body of ecclesiastics which seeks to control his political opinions or direct in any way his use of the 
 elective franchise. 
 
 In the interest of religious freedom and to protect the State from the influence of the Mormon 
 Church, the framers of the constitution of Utah incorporated in that instrument the provision which 
 has been quoted in a preceding part of this report. That provision of the constitution of Utah has 
 been persistently and contemptuously disregarded by the first presidency and the twelve apostles of 
 the Mormon Church ever since Utah was admitted into the Union. They have paid as little regard to 
 this mandate of the constitution of Utah as they have to the law which prohibits polygamy and the 
 law which prohibits polygamous cohabitation. 
 
 The minority say, as to Mr. Smoot's connection with the church: 
 
 So far as mere belief and membership in the Mormon Church are concerned, he is fully within 
 his rights and privileges under the guaranty of religious freedom given by the Constitution of the United 
 States, for there is no statutory provision, and could not be, prohibiting either such belief or such 
 membership. 
 
 Moreover, having special reference to the Mormons residing in Utah and their peculiar belief, it 
 was provided in the act of Congress passed July 16, 1894, that the people of Utah should provide in their 
 constitution "by ordinance irrevocable without the consent of the United States and the people of 
 said States — 
 
 "1. That perfect toleration of religious sentiment shall be secured, and that no inhabitants of 
 said State shall ever be molested in person or property on account of his or her mode of religious wor- 
 ship: Provided, That polygamous or plural marriages are forever prohibited." 
 
 In consequence there was embodied in the constitution of the State of Utah a compliance with 
 this requirement, and thereupon the Territory was duly admitted as a State of the Union. 
 
 Accordingly, members of the Mormon Church, open and avowed believers in its doctrines and 
 teachings, have been admitted without question to both Houses of Congress as Representatives of the 
 State. 
 
 (4) The committee next discuss the oath alleged to be inconsistent mth Mr. 
 Smoot's duties as a Senator: 
 
 In the protest signed and verified by the oath of Mr. Leilich it is claimed that Mr. Smoot has taken 
 an oath as an apostle of the Mormon Church which is of such a nature as to render him incompetent to 
 hold the office of Senator. From the testimony taken it appears that Mr. Smoot has taken an obligation 
 which is prescribed by the Mormon Church and administered to those who go through a ceremony 
 known as "taking the endowments." It was testified by a number of witnesses who were examined 
 during the investigation that one part of this obligation is expressed in substantially these words: 
 
 "You and each of you do covenant and promise that you will pray and never cease to pray Almighty 
 God to avenge the blood of the prophets upon this nation, and that you will teach the same to your 
 children and to your children's children unto the third and fourth generation." 
 
 An effort was made to destroy the effect of the testimony of three of these witnesses by impeachment 
 of their reputation for veracity. This impeaching testimony was not strengthened by the fact that
 
 § 482 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 585 
 
 the witQesses by whom it was given were members of the Mormon Church and would naturally dis- 
 parage the truthfulness of one who would give testimony unfavorable to that church. The testimony 
 of the witnesses for the protestants, before referred to, was corroborated by the testimony of Mr. Dougall, 
 a witness sworn in behalf of Mr. Smoot, and no attempt was made to impeach the character of this 
 witness. It is true that a number of witnesses testified that no such obligation is contained in the 
 endowment ceremony; but it is a verj' suspicious circumstance that every one of the witnesses who 
 made this denial refused to state the obligation imposed on those who take part in the ceremony. 
 
 The e\'idence showing that such an obligation is taken is further supported by proof that during 
 the endowment ceremonies a prayer is offered asking God to avenge the blood of Joseph Smith upon 
 this nation, and certain verees from the Bible are read which are claimed to justify the obligation and 
 the prayer. The fact that such a prayer, if offered, and that such passages from the Bible are read was 
 not disputed by any witness who was sworn on the investigation. Nor was it questioned that by the term 
 "the prophets" as used in the endowment ceremony reference is made to Joseph and Hyrum Smith. 
 
 That an obligation of vengeance is part of the endowment ceremony is further attested by the 
 fact that shortly after testimony had been given on that subject before the committee Bishop Daniel 
 Connelly of the Mormon Church denounced the witnesses who had given this testimony as traitors who 
 had broken their oaths to the church. 
 
 The fact that an oath of vengeance is part of the endowment ceremonies and the nature and char- 
 acter of such an oath was judicially determined in the third judicial court of Utah in the year 1889, in 
 the matter of the application of John Moore and others to become citizens of the United States. In an 
 opinion denying the application the court say. 
 
 •■ In these applications the usual evidence on behalf of the applicants as to residence, moral char- 
 acter, etc., was introduced at a former hearing and was deemed sufficient. Objection was made, how- 
 ever, to the admission of John Moore and William J. Edgar upon the ground that they were members 
 of the Mormon Church, and also because they had gone through the endowment house of that church 
 and there had taken an oath or obligation incompatible with the oath of citizenship they would be 
 required to take if admitted. * » * 
 
 "Those objecting to the right of these applicants to be admitted to citizenship introduced eleven 
 witnesses who had been members of the Church of Jesus Christ of Latter-Day Saints, commonly called 
 the 'Mormon Church.' Several of these witnesses had held the position of bishop in the church, and 
 all had gone through the endowment house and participated in its ceremonies. The testimony of these 
 witnesses is to the effect that every member of the church is expected to go through the endowment 
 house, and that nearly all do so; that marriages are usually solemnized there, and that those who are 
 married elsewhere go through the endowment ceremonies at as early date thereafter as practicable, in 
 order that the marital relations shall continue throughout eternity. 
 
 "On behalf of the applicants fourteen witnesses testified concerning the endowment ceremonies, 
 but all of them declined to state what oaths are taken, or what obligations or covenants are there entered 
 into, or what penalties are attached to their violation; and these witnesses, when asked for their reason 
 for declining to answer, stated that they did so 'on a point of honor,' while several stated they had for- 
 gotten what was said about avenging the blood of the prophets. * * * 
 
 "The witnesses for the applicants, while refusing to disclose the oaths, promises, and covenants of 
 the endowment ceremonies and the penalties attached thereto, testified generally that there was nothing 
 in the ceremonies inconsistent with loyalty to the Government of the United States, and that the Gov- 
 ernment was not mentioned. One of the objects of this investigation is to ascertain whether the oaths 
 and obligations of the endowment house are incompatible with good citizenship, and it is not for appli- 
 cants' witnesses to determine this question. The refusal of applicants' witnesses to state specifically 
 what oath, obligations, or covenants are taken or entered into in the ceremonies renders their testi- 
 mony of but little value, and tends to confirm rather than contradict the evidence on this point offered 
 by the objectors. The evidence established beyond any reasonable doubt that the endowment cere- 
 monies are inconsistent with the oath an applicant for citizenship is required to take, and that the 
 oaths, obligations, or covenants there made or entered into are incompatible with the obligations and 
 duties of citizens of the United States." (Vol. 4, pp. 340-343.) 
 
 The obligation hereinbefore set forth is an oath of disloyalty to the Government which the rules of 
 the Mormon Church require, or at least encourage, every member of that organization to take.
 
 586 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 482 
 
 It is in harmony with the views and conduct of the leaders of the Mormon people in former days, 
 when they openly defied the Government of the United States, and is also in harmony with the conduct 
 of those who give the law to the Mormon Church to-day in their defiant disregard of the laws against 
 polygamy and polygamous cohabitation. It may be that many of those who take this obligation do so 
 without realizing its treasonable import; but the fact that the first presidency and twelve apostles retain 
 an obligation of that nature in the ceremonies of the church shows that at heart they are hostile to this 
 nation and disloyal to its Government. 
 
 And the same spirit of disloyalty is manifested also in a number of the hymns contained in the 
 collection of hymns put forth by the rulers of the Mormon Church to be sung by Mormon congregations. 
 
 There can be no question in regard to the taking of the oath of vengeance by Mr. Smoot. He testi- 
 fied that he went through the ceremony of taking the endowments in the year 1880, and the head of the 
 Mormon Church stated in his testimony that the ceremony is now the same that it has always been. 
 
 An obligation of the nature of the one before mentioned would seem to be wholly incompatible 
 with the duty which Mr. Smoot as a member of the United States Senate would owe to the nation. It is 
 difficult to conceive how one could discharge the obligation which rests upon every Senator to so per- 
 form his official duties as to promote the welfare of the people of the United States and at the same time 
 be calling down the vengeance of heaven on this nation because of the killing of the founders of the Mor- 
 mon Church sixty years ago. 
 
 The minority say on this point: 
 
 As to the "endowment oath," it is sufficient in this summary to say that the testimony is collated 
 and analyzed in the annexed statement, and thereby shown to be limited in amount, vague and indefi- 
 nite in character, and utterly unreliable, because of the disreputable and untrustworthy character of the 
 witnesses. 
 
 There were but seven witnesses who made any pretenses of testifying about any such obligation. 
 One of these was shown by the testimony of two uncontradicted witnesses to be mentally unsound. 
 Another, to have committed perjury in the testimony given before the committee on another point. The 
 third was shown by the uncontradicted testimony of a number of witnesses to have a bad reputation for 
 truth and veracity, and to be thoroughly unreliable. A fourth admitted that he had been for years 
 intemperate, and was shown by indisputable testimony to have lost his position on that account, and 
 thereupon and for that reason to have withdrawn from the church and to have assumed such a hostile 
 and revengeful attitude as to entirely discredit him as a reliable witness. The other three witnesses 
 were so indefinite as to their statements that their testimony amounted at most to nothing more than an 
 attempt to state an imperfect and confessedly uncertain recollection. 
 
 All that it is attempted to show as to the character of this oath is positively contradicted by Reed 
 Smoot and a great number of witnesses, whose standing and character and whose reputation for truth 
 and veracity are unquestioned, except only in so far as their credibility may be affected by the fact 
 that they are or have been members of the Mormon Church. 
 
 Upon this state of evidence we are of opinion that no ground has been established on which to 
 predicate a finding or belief that Mr. Smoot ever took any obligation involving hostility to the United 
 States, or requiring him to regard his allegiance to the Mormon Church as paramount to his allegiance 
 and duty to the United States. 
 
 (5) As to the charge that Mr. Smoot was a polygamist, the majority 
 
 report says: 
 
 In the protest signed by Mr. Leilich alone it was charged that Reed Smoot is a polygamist, and 
 that, as an apostle of the Church of Jesus Christ of Latter-Day Saints, commonly called the "Mormon 
 Church," he had taken an oath "of such a nature and character as that he is thereby disqualified from 
 taking the oath of office required of a United States Senator." No one appeared, however, to sustain 
 either of these charges. No evidence has been offered in support of either of them, but, on the con- 
 trary, both charges were refuted by a number of witnesses. 
 
 The minority say: 
 
 Aside from his connection with the Mormon Church, so far as his private character is concerned, 
 it is, according to all the witnesses, irreproachable, for all who testify on the subject agree or concede
 
 § 483 POLYGAMY AND OTHER CRIMES AS DISQUALIFICATIONS. 587 
 
 that he has led and is leading an upright life, entirely free from immoral practices of every kind. He 
 is not a polygamist; has never had but one wife, and has been noted from early manhood for his oppo- 
 sition to plural marriages, and probably did as much as any other member of the Mormon Church to 
 bring about the prohibition of further plural marriages. 
 
 In accordance with the above considerations, the majority summarize their 
 conclusions as follows: 
 
 The more deliberately and carefully the testimony taken on the investigation is considered, the 
 more irresistably it leads to the conclusion that the facts stated in the protest are true; that Mr. Smoot 
 is one of a self-perpetuating body of men, known as the first presidency and twelve apostles of the Church 
 of Jesus Christ of Latter-Day Saints, commonly known as the Mormon Church; that these men claim 
 divine authority to control the members of said church in all things, temporal as well as spiritual; that 
 this authority is, and has been for several years past, so exercised by the said first presidency and twelve 
 apostles as to encourage the practice of polygamy and polygamous cohabitation in the State of Utah 
 and elsewhere, contrary to the constitution and laws of the State of Utah and the law of the land; 
 that the said first presidency and twelve apostles do now control, and for a long time past have controlled, 
 the political affairs of the State of Utah, and have thus brought about in said State a union of church 
 and state, contrary' to the constitution of said State of Utah and contrary to the Constitution of the 
 United States, and that said Reed Smoot comes here, not as the accredited representative of the State 
 of Utah in the Senate of the United States, but as the choice of the hierarchy which controls the church 
 and has usurped the functions of the State in said State of Utah. 
 
 It follows, as a necessary conclusion from these facts, that Mr. Smoot is not entitled to a seat in the 
 Senate as a Senator from the State of Utah, and your committee report the following resolution: 
 
 Resolved, That Reed Smoot is not entitled to a seat as a Senator of the United States from the State 
 of Utah. 
 
 The minority declared, in addition to the positions taken above, that — 
 
 Reed Smoot possesses all the qualifications prescribed by the Constitution to make him eligible to 
 a seat in the Senate, and the regularity of his election by the legislature of the State of Utah is not 
 questioned in any manner. 
 
 And made no recommendation for action. 
 
 483. The Senate case of Reed Smoot continued. 
 
 The Senate declined to exclude Reed Smoot for alleged disqualifica- 
 tions other than those specified in the Constitution. 
 
 The Senate apparently held the view that Reed Smoot might be de- 
 prived of his seat only by the two-thirds vote specified by the Constitu- 
 tion for expulsion. 
 
 Final arguments in the Smoot case as to what are the constitutional 
 qualifications of a Senator. 
 
 The consideration of the resolution declaring Mr. Smoot not entitled to his seat 
 proceeded at intervals during the second session of the Fifty-ninth Congress. 
 
 On February 14, 1907,' Mr. Philander C. Knox, of Pennsylvania, in debating 
 the resolution, said: 
 
 Mr. President, the Constitution provides that the Senate shall be the judge of the qualifications 
 of its members; a majority of the Senate can determine whether or not a Senator possesses them. The 
 Constitution also provides that the Senate may, with the concurrence of two-thirds, expel a Member. 
 
 I have intentionally referred to the proposed action against Senator Smoot as expulsion. I do not 
 think the Senate will seriously consider that any question is involved except one of expulsion, requiring 
 
 ' Second session Fifty-ninth Congress, Record, p. 2934.
 
 588 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 483 
 
 a two-thirds vote. There is no question as to Senator Smoot possessing the qualifications prescribed by 
 the Constitution, and therefore we can not deprive him of his seat by a majority vote. He was at the 
 time of his election over 30 years of age and had been nine years a citizen of the United States, and when 
 elected was an inhabitant of Utah. These are the only qualifications named in the Constitution, and 
 it is not in our power to say to the States, "These are not enough; we require other qualifications," or to 
 say that we can not trust the judgment of States in the selection of Senators, and we therefore insist 
 upon the right to disapprove them for any reason. 
 
 This claim of right to disapprove is not even subject to any rule of the Senate specifying additional 
 qualifications of which the States have notice at the time of selecting their Senators, but it is said to be 
 absolute in each case as it arises, uncontrolled by any canon or theory whatever. 
 
 Anyone who takes the trouble to examine the history of the clause of the Constitution as to the 
 qualification of Senators must admit that it was the result of a compromise. The contention that the 
 States should be the sole judges of the qualifications and character of their representatives in the Senate 
 was acceded to with this limitation: A Senator must be 30 years of age, nine years a citizen of the United 
 States, and an inhabitant of the State from which he is chosen. Subject to these limitations imposed 
 by the Constitution, the States are left untrammeled in their right to choose their Senators. This 
 constitutional provision secures a measure of maturity in counsel, and at least a presumption of interest 
 in the welfare of the Nation and State. 
 
 By another provision — namely, that relating to expulsion — the Constitution enables the Senate to 
 protect itself against improper characters by expelling them by a two-thirds vote if they are guilty of 
 crime, offensive immorality, disloyalty, or gross impropriety during their term of service. 
 
 I specify these reasons because I can not imagine the Senate expelling a member for a cause not 
 falling within one of them. 
 
 ******* 
 
 I know of no defect in the plain rule of the Constitution for which I am contending. I know of no 
 case it does not reach. I can not see that any danger to the Senate lies in the fact that an improper 
 character can not be expelled without a two-thirds vote. It requires the unanimous vote of a jury to 
 convict a man accused of crime; it should reqiurc, and I believe that it does require, a two-thirds vote 
 to eject a Senator from his position of honor and power, to which he has been elected by a sovereign State. 
 
 The simple constitutional requirements of qualification do not in any way involve the moral 
 quality of the man; they relate to facts outside the realm of ethical consideration and are requirements 
 of fact easily established. Properly enough, therefore, as no sectional, partisan, or religious feeling 
 could attach itself to an issue as to whether or not a man is 30 years of age, had been a citizen of the United 
 States and an inhabitant of a State for the periods prescribed, the decision as to their existence rests with 
 a majority of the Senate. "When, however, a different issue is raised, dehors the Constitution, upon 
 allegations of unfitness, challenging the moral character of a Senator, involving a review of questions 
 considered and settled in the Senator's favor by the action of his State in electing him, then the situation 
 is wholly changed, and a different function is to be performed by the Senate, calling for its proper exercise 
 the highest delicacy and discretion in reviewing the action of another sovereignty. 
 
 If I were asked to state concisely the true theory of the Constitution upon this important point, I 
 would unhesitatingly say; 
 
 First. That the Constitution undertakes to prescribe no moral or mental qualification, and in 
 respect to such qualifications as it does prescribe the Senate by a majority vote shall judge of their exist- 
 ence in each case, whether the question is raised before or after the Senator has taken his seat. 
 
 Second. That as to all matters affecting a man's moral or mental fitness the States are to be the 
 judges in the first instance, subject, however, to the power of the Senate to reverse their judgment by a 
 two-thirds vote of expulsion when an offense or an offensive status extends into the period of Senatorial 
 service, and such a question can only be made after the Senator has taken his seat. 
 
 If to this it is objected that it contemplates admitting a man who may be immediately expelled, I 
 reply that it is hardly proper to adopt a rule of constitutional construction and Senatorial action based 
 upon the theory that the States will send criminals or idiots to the Senate. Besides, it does not seem to 
 me to be conceding much to a State, after it has deliberately and solemnly elected a Senator after the 
 fullest consideration of his merits, to concede on the first l)lush of the lousiness the State's intelligent and 
 honorable conduct by allowing its chosen representative admission to the body to which he is accredited.
 
 §483 
 
 POLYGAMY AND OTHER CEIMES AS DISQUALIFICATIONS. 589 
 
 On February 20/ Mr. Julius C. Burrows, of Jklichigan, said : 
 
 Under the first head it is insisted that the Senate, in examining into the qualifications of a Senator, 
 is restricted in its inquiry to the question of age, citizenship, and residence, and beyond that the inquirj- 
 can not go, and no other qualifications can be imposed. The junior Senator from Illinois, in his verj' 
 able speech, said ujwn this point: 
 
 •'The po'srer that is given to the Senate under the Constitution is not to create Senators, but to 
 judge of their qualifications. The States create the Senators. The qualifications to be judged are those 
 I have already stated, prescribed in the Constitution itself. If the Senate find those qualifications 
 exist for the applicant for a seat in this body from any given State, then under all precedents such Senator 
 is entitled to take the oath of office and take his place among the members of this great legislative body." 
 
 If such contention can be maintained, that ends the controversy, for no one questions but that the 
 senior Senator from Utah has, in the language of the Constitution, '"attained to the age of 30 years, been 
 nine years a citizen of the United States, and is an inhabitant of the State from which he is chosen." 
 
 If the possession of these attributes constitutes the "lie all and end all" of the qualifications of a 
 Senator, then is the Senate helpless indeed. If this contention be sound, then Joseph F. Smith, the 
 head of th's organization to which the Senator belongs, possessing, as he does, the constitutional quali- 
 fications of age, citizenship, and residence, would be entitled to admission to this body if elected by the 
 legislature of Utah, and his five wives and forty-three children covdd witness from the galleries of the 
 Senate his triumphal entry, unquestioned and unopposed, into the membership of this august assembly. 
 
 It is impossible for me to give assent to such doctrine, and I have been unable to find it sustained 
 either in reason or upon authority, and the contention is resisted both upon principle and precedent and 
 can, in my judgment, find no warrant in either. 
 
 I submit that the provision of section 3, Article I, was not inserted with the purpose of determining 
 or fixing the qualifications of Senators, but it was ingrafted into the Federal Constitution expressly as a 
 limitation upon the power of the States in making selection of Senators, restricting the choice to a cer- 
 tain class of its citizens. It excluded a certain class as being ineligible to the office of Senator. The 
 purpose of it was to correct an evil which had grown up during the years of the Continental Congi'ess and 
 the Congress of the Confederation. It was for the purpose of insuring a national Congress for the new 
 Government to be composed of a body of men of mature judgment, residents of the State or district, and 
 thoroughly American. 
 
 Noah Webster said, speaking of the leading principles of the Federal Constitution: 
 
 "A man must be 30 years of age before he can be admitted into the Senate, which was likewise a 
 requisite in the Roman Government. The places of Senators are wisely left open to all persons of suit- 
 able age and merit, and who have been citizens of the United States for nine years, a term in which 
 foreigners may acquire the feelings and acquaint themselves with the interests of the native Americans.' 
 
 A brief reference to the facts of history will suffice to show the exigency which called this consti- 
 tutional pro\'ision into existence. 
 
 Under the Continental Congress and the Congress of the Confederation there were no restrictiijns 
 as to age, residence, or citizenship, except such as the various colonies or States saw fit to impose, and 
 which were as varied as the number of colonies or States, and of the 348 different individuals from the 
 thirteen colonies who held scats in the Continental Congress and the Congress of the Confederation from 
 1774 to 1788, the ages of the delegates varied from 16 to 76 years. Charles Pinckney, of North Carolina, 
 a member of the Continental Congress, was but 19 years of age when elected to that body, and James 
 Sykes, of Delaware, also of the Continental Congress, was only 16 years old when elected to Congress, 
 and twenty-five members of that body were under 30 years of age. 
 
 With these examples before them, it was deemed wise to place some restrictions in the Federal 
 
 Constitution upon the power of the States in their choice of Senators and Representatives to the Federal 
 
 Congress. 
 
 ******* 
 
 I repeat, therefore, that this provision of the Constitution was evidently intended to be nothing 
 more than a statement of a few of the many disqualifications which would or might render one untit to 
 hold the office of a Senator and to make ineligible all persons laboring under the disabilities named, and 
 leaving the question of qualifications in other respects to be determined by the Senate according to the 
 
 ' Record, pp. 3418, 3419, 3420.
 
 590 PRECEDENTS OP THE HOUSE OF EEPRESENTATIVES. § 483 
 
 facts in each particular case, under the right conferred by the Constitution to judge of the qualificationa 
 of its own members. To contend otherwise would be to assert that the fathers who framed our Consti- 
 tution deliberately intended that an idiot, a lunatic, an enemy of the Government, or a notorious crimi- 
 nal must be allowed a place in the Senate if of proper age, residence, and citizenship. I submit that 
 no such interpretation of that clause of the Constitution is justifiable or reasonable, and that the pro- 
 vision in question must be interpreted as being a limitation, to a certain extent, upon the powers of the 
 State in choosing members to the Senate. This contention, I insist, is sustained not only in reason, but 
 upon authority. 
 
 Mr. Burrows then referred to the cases of Niles, Thomas, and Roberts; and 
 continued: 
 
 Mr. President, it is contended in behalf of Senator Smoot that even if it were to be conceded that 
 the Senate would have a right to inquire into the qualifications of Senator Smoot as regards his past 
 history, his associations, his acts, and his fitness to be a Senator from the State of Utah, still Mr. Smoot, 
 having taken the oath of office as a Senator, can not be excluded from the Senate or in any way be 
 removed from this body except by expulsion, requiring a two-thirds vote. It is proposed, as I under- 
 stand, to amend this resolution so as to require a two-thirds vote by inserting, after the word "Resolved," 
 the words "two-thirds of the Senate concurring," and thereby to erect an additional barrier behind 
 which the Senator from Utah may take refuge. 
 
 It is admitted that if the status of Senator Smoot at the time he presented himself for admission 
 in this body would have justified his exclusion, then the same status or condition continuing until this 
 time would justify his removal. However, I have no desire to discuss at length that question, because 
 to my mind it is not material. 
 
 In the Senate, whenever one has presented himself claiming the right to a seat in that body with 
 credentials which upon their face were fair and regular in form but whose right to a seat was challenged 
 for any reason, the almost uniform practice has been to admit him to a seat and inquire into his qualifi- 
 cations afterwards. Such was the course pursued in the case of Albert Gallatin, of Pennsylvania, in 
 1793; of Asher Robbins, of Rhode Island, in 1833; of James Shields, of Illinois, in 1849; of James Harlan, 
 of Iowa, in 1853, and in a great number of other cases which might be cited. 
 
 On the same day ' the question recurred on the resolution recommended by 
 the committee: 
 
 Resolved, That Reed Smoot is not entitled to a seat as a Senator of the United States from the 
 State of Utah. 
 
 Jklr. Albert J. Hopkins, of Illinois, proposed a substitute amendment, to strike 
 out all after the word "Resolved" and insert a new text, so that it should read as 
 follows: 
 
 Resolved {two-thirds of the Senators present concurring therein), That Reed Smoot is not entitled to 
 a seat as a Senator of the United States from the State of Utah. 
 
 The amendment of Mr. Hopkins was agreed to — yeas 49, nays 22. 
 Thereupon Mr. Edward W. Carmack, of Tennessee, proposed a substitute as 
 follows : 
 
 Resolved, That Reed Smoot, a Senator from Utah, be expelled from the Senate of the United States. 
 
 This substitute was disagreed to — yeas 27, nays 43. 
 
 Then the resolution of the committee as amended on motion of Mr. Hopkins 
 was disagreed to — yeas 28, nays 42 — two-thirds not voting in favor thereof. 
 
 > Record, pp. 3428-3430.
 
 § 484 POLYGAMY AND OTHEB CRIMES AS DISQUALIFICATIONS. 591 
 
 484. Discussion by a House committee as to the power of the House 
 to impose qualifications not enumerated in the Constitution. — On February 
 27, 1899/ Mr. Adin B. Capron, of Rhode Island, submitted a report from the 
 Conxmittee on Election of President, Vice-President, and Representatives in 
 Congress, which contained this discussion: 
 
 If the constituted authorities of a State fail, either willfully or after the exercise of every legal 
 process, to enforce and maintain its laws against polygamous or plural marriages or unlawful cohabitation, 
 and such failure results in the election to Congress of a person who is a polygamist, but who is qualified 
 under the Constitution of the United States, the question of eligibility would not thereby be necessarily 
 raised, but it could at least serve to show the lack of power on the part of each House of Congress to deal 
 with such a condition, except in one way, namely, by admission to membership followed by expulsion. 
 
 The Constitution, Article I, section 5, constitutes each House the judge of the "elections, returns, 
 and qualifications of its own members." The qualifications of Senators and Representatives are 
 prescribed by the Constitution as follows: 
 
 "No person shall be a Representative who shall not have attained to the age of twenty-five years 
 and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant 
 of that State in which he shall be chosen." (Art. I, sec. 2, par. 2.) 
 
 "No person shall be a Senator who shall not have attained to the age of thirty years and been nine 
 years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State for 
 which he shall be chosen." (Art. I, sec. 3, par. 3.) 
 
 One notable case only need be cited to show the operation of those provisions — that of Albert 
 Gallatin, of Pennsylvania, whose election was declared void by the Senate on the ground that he had not 
 been a citizen of the United States the term of years required as a qualification to be a Senator of the 
 United States. (Senate Journal, first session Third Congress, p. 37.) 
 
 It will be seen that, the qualifications of Senators and Representatives being fixed by the Con- 
 stitution, it is only within the power of each House to determine whether a person otherwise entitled 
 to a seat possesses those qualifications and no more. Should the person possess those qualifications 
 and the question be raised that he is ineligible in another or other respects — for instance, that he is a 
 polygamist in violation of the laws of his State — is a question which it is generally conceded (the case 
 being hypothetical and, we believe, never having been actually raised) neither House would have the 
 right to entertain. The case of George Q. Cannon v. Allen G. Campbell, in the Forty-seventh Congress, 
 presents features resembling the hypothetical one stated, but that case originated in the Territory of 
 Utah, over which the laws of the United States extended, while in the one under consideration we 
 are dealing with the States and the limitations placed upon Congress by the Constitution to judge of 
 the qualifications of its members duly elected by the States. 
 
 In the case of Cannon v. Campbell the conclusion was reached that the contestant having admitted 
 that he has plural wives and that he teaches and advises others to the commission of that offense, he 
 should be excluded from the House, and contestant having only received a minority of the votes cast 
 was not elected, and the seat was declared vacant. (See House Report 559 and House Journal, first 
 session Forty-seventh Congress, p. 1074.) 
 
 The distinction should be clearly noted between this case and one growing out of a State. 
 
 In a h\^othetical case of the kind presented above what could either House of Congress legitimately 
 do? Your committee do not feel it is their right, even if they were so disposed, to volunteer an answer 
 to the question. The author of the so-called "Edmunds Act," an acknowledged constitutional lawyer 
 of great ability, recently expressed the opinion in the press that in such a case the House would have 
 to admit the Representative-elect to membership and then, if it saw fit, expel him, as permitted by 
 Article I, section 5, paragraph 2 of the Constitution. This would be the only power left to either House, 
 the exercise of which would require the concurrence of two-thirds. (For action by both Houses expel- 
 ling members see cases of Jesse D. Bright, John C. Breckinridge, Trusten Polk, and Waldo P. Johnson, 
 Senate Journal, second session Thirty-seventh Congress, pp. 23, 97, 98, 176; and John B. Clark and 
 John W. Reid, House Journal, second session Thirty-seventh Congress, pp. 8, 75.) 
 
 • Third session Fifty-fifth Congress, Report No. 2307.
 
 Chapter XVIf 
 INCOMPATIBLE OFFICES. 
 
 1. Provision of the Constitution. Section 486.' 
 
 2. Cases of Van Ness, Hammond, Baker, and Tell. Sections 48&-489. 
 
 3. Cases of Vandever, Lane, Schenck, and Blair. Sections 490-492. 
 
 4. General examination as to military officers, paid and unpaid services, etc. Sections 
 
 493-496.- 
 
 6. Cases of Mumford, Earle, Herrick, and Wheeler. Sections 497-600. 
 
 6. Questions as to vacancies, contestants, etc. Sections 601-606.^ 
 
 485. No person holding any oflB.ce under the United States shall be a 
 Member of either House during his continuance in oflS.ce. 
 
 No Member may, during the term for which he was elected, be ap- 
 pointed to any oflSce which shall have been created or the emoluments of 
 which shall have been increased during such term. 
 
 Section 6 of Article I of the Constitution provides: 
 
 No Senator or Representative Bhall, during the time for which he was elected, be appointed to 
 any civil office under the authority of the United States, which shall have been created or the emolu- 
 ments whereof shall have been increased during such time; and no person holding any office under 
 the United States shall be a Member of either House during his continuance in office.* 
 
 486. The New York case of John P. Van Ness in the Seventh Con- 
 gress. 
 
 * See Volume VI, Chapter CLVIII. 
 
 1 Senate discussion of. (Sec. 563 of this volume.) 
 
 2 Office of assistant district attorney of the United States not incompatible necessarily. (Sec. 
 993 of Vol. II.) 
 
 ^ Investigation after a Member's resignation as to his acceptance of. (Sec. 2590 of Vol. III.) 
 
 Conclusions when contestants have accepted incompatible offices under the United States (sees. 
 46 and 746 of this volume), and office under State government (sec. 1003 of Vol. II). 
 
 A contestant must prove election before admitted to seat left vacant by returned Member's accept- 
 ance of an incompatible office. (Sec. 807 of this volume.) 
 
 ■* On January 4, 1825, the subject of the appointment of Members of Congress to office was debated 
 at length, and resulted in the passage of a resolution calling on the President for a list of all the Mem- 
 bers appointed to office since the foundation of the Government. (First session Nineteenth Congress, 
 Journal, pp. 114, 117; Debates, pp. 868-872.) On April 25 the President presented the desired infor- 
 mation. Mournal, p. 471.) 
 592
 
 § 487 INCOMPATIBLE OFFICES. 593 
 
 A Member who had been, appointed a militia ofl&cer in the District of 
 Columbia by the President was deprived of his seat in the House. 
 
 A Member charged with acceptance of an incompatible office was heard 
 in his own. behalf during the debate. 
 
 On January 11, 1803/ Mr. John Bacon, of Massachusetts, from the Committee 
 on Elections, made a report in the case of Mr. Jolm P. Van Ness, a Representative 
 from New York, who had in the recess between the first and second sessions of 
 this Congress accepted an office under the United States. The committee found 
 that this was in violation of the provision of Article I, section 6, of the Constitu- 
 tion, which provides that "No person holding an office under the United States 
 shall be a Member of either House during his continuance in office," and recom- 
 mended the adoption of this resolution: 
 
 Resolved, That John P. Van Ness, one of the Members of this House, having accepted and exer- 
 cised the office of major of militia, under the authority of the United States, within the Territory of 
 Columbia, has thereby forfeited his right to a seat as a Member of this House. 
 
 Mr. Van Ness, who was heard in his own behalf, urged that the provision of 
 the Constitution was intended to apply only to civil officers; that he was an officer 
 only of a dependent, or colonial district, of the United States; that his exclusion 
 would mean the exclusion of militia officers of the States, since they were subject 
 to the command of the United States; and that there were no emoluments to the 
 office which he had accepted, and therefore could be no danger of corruption. 
 
 Mr. Bacon responded that the Constitution used the expression "any office," 
 and the committee felt themselves bound by its terms. 
 
 Mr. John Randolph, jr., of Virginia, called for the yeas and nays, and asked the 
 House, in the important precedent which it was about to establish, to vote unani- 
 mously to exclude even the shadow of Executive influence. The vote being taken 
 on the resolution, it was agreed to — yeas 88, nays, 0. 
 
 487. A Member, Samuel Hammond, having accepted an Executive 
 appointment, the House declared his seat vacant. — On January 30, 1805,= the 
 House — 
 
 Resolved, That the President of the United States be requested to inform this House whether 
 Samuel Hammond, a Member of this House, has not accepted an Executive appointment, and when. 
 
 Ordered, That Mr. Bryan and Mr. Eppes be appointed a committee to present the foregoing resolu- 
 tion to the President of the United States. 
 
 On February 1, President Jefferson, by message, informed the House that — 
 
 by a letter of the 30th of May last, from the Secretary of War to Samuel Hammond, a Member of 
 the House, it was proposed to him to accept a commission of colonel commandant for the district of 
 Louisiana, when the new government there should commence. By a letter of the 30th of June he signified 
 a willingness to accept; but still more definitely by one of October 26. 
 
 The President stated further that a commission had been made out for him, 
 bearing date the 1st day of October last, and forwarded before the receipt of his 
 letter of October 26. 
 
 ' Second session Seventh Congress, Journal, pp. 280, 290 (Gales & Seaton ed.); Annals, pp. 395-399. 
 ^ Second session Eighth Congress, Journal, pp. 112, 113, 116 (Gales & Seaton ed.); Annals, 
 pp. 1033, 1139. 
 
 5994— VOL 1—07 33
 
 594 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 488 
 
 On February 2, on motion, 
 
 Resolved, iinanimously, That Samuel Hammond, a Member of this House from Georgia, having 
 accepted an Executive appointment, has vacated his seat in this House. 
 
 Resolved, That a copy of the foregoing resolution be sent to the governor of Georgia by the Speaker 
 of this House. 
 
 488. The election cases of Edward D. Baker, of Illinois, and Archibald 
 Yell, of Arkansas, in the Twenty-ninth Congress. 
 
 In the cases of Baker and Yell the Elections Committee held that the 
 acceptance of a commission as an ofl&cer of volunteers in the National 
 Army vacated the seat of a Member. 
 
 Form of resolution declaring vacant the seat of a Member who had 
 become an oflB.cer in the Army. 
 
 Instance wherein a Member, having appointed a future day for his 
 resignation to take effect, remained and participated in the proceedings 
 of the House before the arrival of that date. 
 
 On December 24, 1846,* Mr. Edward D. Baker, of Illinois, appeared in his 
 seat, and on the same day the Speaker presented to the House Mr. Baker's letter 
 announcing that he had forwarded to the governor of Illinois his resignation, to 
 take effect from January 15, 1847. 
 
 On December 30,^ some criticism having been made in relation to his position 
 both as an officer of the Army and as a Member, ilr. Baker arose and resigned his 
 seat, saying: 
 
 Mr. Speaker, I now resign my seat as Representative from the Seventh district in the State of 
 Illinois in the Twenty-ninth Congress. 
 
 On January .5, 1847,' on motion of Mr. Robert C. Schenck, of Ohio, the Com- 
 mittee on Elections were instructed to examine the status of Mr. Baker. 
 
 On February 26,* the Committee on Elections reported that Edward D. Baker 
 had not been entitled to a seat in the House since the acceptance by him of a com- 
 mission as colonel of volunteers in the Army of the United States. The committee 
 included in their report a consideration of a similar case relating to Mr. Archibald 
 Yell, of Arkansas, and discussed them together in reference to the provision of the 
 Constitution. 
 
 The question then arises, are the offices which have been accepted by these gentlemen oflBces 
 under the United States, within the meaning of the Constitution? We think they are. If it be urged 
 that the commission is derived from the State authorities, the answer is, that a commission does not 
 confer the office; it is only the evidence of the right to exercise its functions. The commLssions of 
 Members of Congress, or, in other words, their certificates of election, are derived from the State author- 
 ities. Like the colonels, whose cases are now under consideration, their services are rendered to the 
 United States, and they are paid by the United States, but their commissions are derived from the 
 State authorities. It seems to the committee that the question whether the office is held under the 
 United States or under a State does not depend upon the question who gave the commission, made 
 the election, or conferred the appointment, but upon the question. What are the duties to be performed, 
 the Government for whom they are to be performed, and to what government is the office responsible 
 
 ' Second session Twenty-ninth Congress, Journal, p. 91; Globe, p. 82. 
 
 =* Journal, p. 112; Globe, p. 99. 
 
 3 Journal, p. 136; Globe, p. 115. 
 
 * Journal, p. 436; 1 Bartlett, p. 92. House Report Xo. 86.
 
 I 489 INCOMPATIBLE OFFICES. 595 
 
 for a failure to perform? Testing the offices in question by this standard, and there can remain but 
 verj- little doubt. These colonels perform like services with those of the Regular Army. They are 
 responsible to the laws of the United States for the manner in which they discharge the duties of 
 their offices. 
 
 The committee believe that to hold an office in the Army of the United States is incompatible 
 with the office of a Member of Congress, and that therefore the two offices can not be held at the same 
 time by the same individual; that it is against the whole theory and spirit of our form of government. 
 The Constitution intended that the President should have no power to control the action of Congress 
 in any respect; that it should be perfectly independent. Now, suppose that every Member of Congress 
 were a colonel in the Army in the ser^'ice of the United States, and the President, who is by the Con- 
 stitution the Commander in Chief of that Army, should come into the Halls of Congress and order each 
 individual Member to retire immediately, under the penalties inflicted for disobedience to orders, to 
 his post in the Army, what would become of Congress? 
 
 The committee therefore reported the following resolution: 
 
 Resolved, That Edward D. Baker has not been entitled to a seat as a Member of the House of Rep- 
 resentatives since the acceptance and exercise by him of the military appointment of colonel of vol- 
 unteers from the State of Illinois, in the service of the United States. 
 
 The report and resolution were submitted, and without discussion were laid on 
 the table.' This action was undoubtedly taken on the report because Mr. Baker 
 had already resigned, and Mr. Yell's case had been settled by the House by the 
 admission of his successor.' 
 
 489. The election case of Thomas W. Newton, of Arkansas, in the 
 Twenty-ninth Congress. 
 
 In 1847 Thomas W. Newton presented credentials showing' his elec- 
 tion in place of Archibald Yell, of Arkansas, who was an oflacer in the 
 Army; and was admitted on his prima facie right. 
 
 The Elections Committee found that Thomas W. Newton, already 
 seated on prima facie showing, was entitled to the seat made vacant by 
 Archibald Yell's acceptance of an office in the Army. 
 
 On February 6, 1.847,^ Thomas W. Newton appeared at the bar of the House, 
 presented his credentials as a Representative in the Twenty-ninth Congress from 
 the State of Arkansas in place of Archibald Yell, and asked that the oath to support 
 the Constitution of the United States might be administered to him, and that he be 
 permitted to take a seat in the House. 
 
 Mr. George W. Jones, of Tennessee, proposed the following : 
 
 Resolved, That Thomas W. Newton, having presented credentials of his election as a Member of 
 this House from the State of Arkansas, and the House having received no information of the death, 
 resignation, or disqualification of Archibald Yell, heretofore elected and qualified a Member of the 
 Twenty-ninth Congress, the said credentials be referred to the Committee of Elections, and that the 
 said committee report thereon at the earliest practicable day. 
 
 Mr. Wilham P. Thomasson, of Kentucky, proposed an amendment in the nature 
 of a substitute providing — 
 
 That Thomas W. Newton, who now presents his credentials of election as a Member of Congress 
 from the State of Arkansas, be sworn as a Member and take his seat; and that the credentials of his elec- 
 tion be referred to the Committee on Elections. 
 
 > Journal, p. 437; Globe, p. 527. 
 
 * See section 489 of this work. 
 
 ' Second session Twenty-ninth Congress, Journal, pp. 305, 306; Globe, p. 339.
 
 596 PRECEDENTS OF THE HOtTSE OF REPRESENTATIVES. § 490 
 
 Debate arose on these propositions, it being asserted that Mr. Yell had taken 
 his seat at the last session of Congress, and that of his resignation the House had 
 received no notice. Therefore there might be a conflict of his rights wdth those of 
 Mr. Newton. Moreover, there was a question as to the existence of the vacancy 
 which it was now proposed to fill. 
 
 On the other hand, it was urged that Mr. Newton should be sworn in on his 
 prima facie right. 
 
 A document received from the executive department was then read, showing 
 that Mr. Yell was serving \vith the Army in Mexico. 
 
 Thereupon the amendment and the resolution as amended were agreed to, and 
 Mr. Newton took the oath. 
 
 On February 26 ' the Committee of Elections reported the following facts : 
 
 Archibald Yell was regularly elected as a Member uf the Twenty-ninth Congress from the State 
 of Arkansas; that some time in the month of July, 1846, he accepted a commission as colonel of volun- 
 teers raised in the State of Arkansas under an act of Congress approved May 13, 1846; that the commis- 
 sion thus accepted was made out by the State authorities, l)ut that Colonel Yell and the volunteers 
 under his command were, in said month of July, mustered into the service of the United States; 
 that he yet continues in the service of the United States as a colonel, and receives his pay from the 
 Government of the United States. And that Thomas \V. Xewton was, on the 14th of December, 1846, 
 elected a Representative in the Twenty-ninth Congress from the State of Arkansas. To iise the 
 language of his certificate of election, he was elected "to fill the unexpired term of Archibald Yell.'' 
 The committee have no legal evidence before them that Archibald Yell, at any time before the 
 election of Mr. Newton, resigned his seat as a Member of Congress. The committee are of opinion 
 that the facts above enumerated present precisely the same question for their consideration imder the 
 second resolution as is presented to the House in the first resolution.^ 
 
 The committee are of opinion that under the fifth section of the first article of the Constitution of 
 the United States the House has the right to ascertain and decide upon all questions of law and of fact 
 necessary to be ascertained and decided in order to enable it to determine upon the rights of each indi- 
 vidual who may claim to be one of its Members. And hence the committee instituted an inquiiy 
 * * * for the purpose of ascertaining whether such a vacancy existed as entitled the people of 
 Arkansas to "elect a successor to Mr. YeU," and concluded "that at the time of the election of Thomas 
 W. Newton there existed a vacancy from the State of Arkansas, occasioned by the acceptance by Arch- 
 ibald Yell of a commission to serve as a colonel of volunteers in the Army of the United States." 
 
 The committee, after giving the reasons, identical with those in the case of 
 Mr. Baker,^ recommended the following: 
 
 Resolved, That Thomas W. Newton is entitled to a seat as a Member of this House from the State 
 of Arkansas. 
 
 The report and resolution, when reported to the House, were without debate 
 laid on the table.* 
 
 490. The Iowa election case of Byington v. Vandever, in the Thirty- 
 seventh Congress. 
 
 A Member who had been mustered into the military service of the 
 United States was held by the Elections Committee to have forfeited his 
 right to his seat. 
 
 A Member having disqualified himself by accepting an oflBce in the 
 Army, a resolution for his exclusion may be agreed to by majority vote. 
 
 ' 1 Bartlett, p. 92; House Report No. 86. 'See case of Mr. Baker. 
 
 -See case of Edward D. Baker. Section 488. 'Journal, p. 437; Globe, p. 527.
 
 § 490 INCOMPATIBLE OFFICES. 597 
 
 An instance wherein a contestant in an election case participated in 
 debate on incidental questions arising out of the said case. 
 
 Form of resolution declaring vacant the seat of a Member who had 
 become an officer in the Army. 
 
 On April 11, 1862,' the Committee on Elections reported on the Iowa case of 
 Byington v. Vandever. There were two features in this case. It was claimed that 
 sitting ^lember had not been elected on the day prescribed by the laws of Iowa. 
 The committee briefly state that in their opinion Mr. "\'andever had been duly 
 elected and rightfully admitted to the seat. 
 
 The question which the report really presented was as to the qualifications of 
 the sitting Member. After his election Mr. Vandever had offered to furnish a regi- 
 ment for the service of the countrj-, and on July 23, 1861, the President had, by 
 authority of law, accepted this offer. On August 30, 1861, Mr. Vandever was 
 appointed colonel of the Ninth Iowa Volunteer Infantry, and on September 24 was 
 mustered into the actual service of the United States, where he was at the time of 
 the making of the report. He had been commissioned by the governor of Iowa as 
 colonel of militia, but the committee found that in respect to being a colonel of 
 militia the commission was inaccurate. The report, which was unanimous, says: 
 
 Colonel Vandever, under the facts, claims, however, that he is simply an officer of the State of 
 Iowa, because (as his letter would seem to imply), in his opinion, the volunteer force he enlisted and 
 commands is simply a part of the militia of Iowa. 
 
 But whether Colonel Vandever is to be regarded as an officer in the Army proper of the United 
 States, or as an officer of the militia of Iowa, is, in the opinion of the committee, of little importance. 
 If he was actually mustered into the service of the United States, he was, by that act, placed in an 
 office totally incompatible with that of Representative in Congress. 
 
 He has no right as Representative to absent himself from the House without leave, and if he does, 
 is liable to be arrested by the officer of the House and returned and punished. But he is also bound as 
 an officer of the Army to be with his regiment (perhaps a thousand miles distant), ready to execute the 
 commands of his superior officer; and for his default is liable to punishment — it may be with death. 
 Or his military superior may take him by force from his seat and duties in the House to his post in the 
 Army. 
 
 That such a physical impossibility as is thus created, to execute the duties of both offices, renders 
 them incompatible, would seem to be beyond a doubt. 
 
 But there is also that in the nature of the powers incident to the two positions which renders them 
 Incompatible. As Representative he may by his vote repeal the law or army regulation creating a 
 duty or imposing a penalty which, as officer of the Army, he has neglected or incurred. Or in the exer- 
 cise of his right (and perhaps duty) as Representative, to speak of the conduct of his superior military 
 officers, he might utter words for which, as an officer of the Army, the superior would have an equal 
 right to cause him to be tried by court-martial and punished. 
 
 These instances of conflicting irreconcilable duties and powers are sufficient to illustrate the 
 incompatibility of the two offices; and that the acceptance by the same person of an office incompatible 
 with another held by him, is a virtual resignation or forfeiture of the office first held, is too plain a propo- 
 sition to need illustration. It results from the presumption that no man can intend, as well as from 
 the policy that no man shall be permitted, to hold a trust the duties of which he has disqualified himself 
 from performing. All the authorities agree in this principle. 
 
 And again admitting, for the sake of the argument, that Colonel Vandever was originally simply an 
 officer of the militia of Iowa, still your committee are of the opinion that the act of mustering him into 
 the military service of the United States made him an officer of the United States. The authority which 
 an officer is bound to obey and to which he is responsible, and whose pay he receives, determines under 
 what Government he acts and whose officer he really is. 
 
 ' Second session Thirty-seventh Congress, Report No. 68; 1 Bartlett, p. 395.
 
 598 PRECEDENTS OF THE HOUSE OF KEPEESENTATIVES. § 490 
 
 But your committee are of the opinion that Colonel Vandever was really and truly appointed 
 colonel, not of Iowa militia, but of the Ninth Regiment of Iowa Volunteer Infantry, and that the latter 
 force is in no sense of the term a militia force, but is a force raised solely by the authority of the Fed- 
 eral Government, and hence that its officers (Colonel Vandever among the rest) hold their offices under 
 the United States. 
 
 The commission, it is true, styles him colonel of the Ninth Infantry of the militia of the State of 
 Iowa. But a commission does not confer the office. It is, at most, but evidence of an appointment. 
 An error in the commission can not confer a right to an office to which the person holding the commis- 
 sion has not been appointed, neither can it take away his right to exercise the powers and receive the 
 emoluments of one to which he has been appointed. There are numerous officers which the President 
 commissions that are appointed by others. Suppose there should be an error in the commission he con- 
 fers; certainly it would not take away the office. The appointment itself, and the entrance upon and 
 actual discharge of the duties of an office (by the appointee), under a claim of right, are the real requisites 
 constituting a person an officer, and decisive of the office to which he is appointed. 
 
 Neither does the fact that he was commissioned by the governor of Iowa militate against the position 
 that Colonel Vandever is an officer of the United States. The act of Congress under which the force 
 Colonel Vandever commands was raised authorizes the governors of the States where the force is raised 
 to commission certain of the officers. The governor acts only by virtue of that law. He is the mere 
 agent of the United States for the purposes indicated in the act. The appointment and commission 
 would have been just as valid had any other agent been selected to have made and issued them. 
 
 But the force Colonel Vandever really was appointed to command, and with which he has ever 
 since been in service as commander, was enlisted by direction of the President under the authority of 
 the act of Congress entitled "An act to authorize the employment of volunteers to aid in enforcing the 
 laws and protecting public property," which act could have been passed only under that clause of the 
 eighth section of the Constitution which provides that Congress shall have power to raise and support 
 armies. 
 
 The cases of Messrs. Van Ness and Yell were cited as conclusive precedents. 
 
 The committee therefore concluded that Colonel Vandever's case fell clearly 
 within the provisions of the sixth section of Article I of the Constitution, and recom- 
 mended that the House agree to this resolution: 
 
 Resolved, That William Vandever has not been entitled to a seat aa a Member of this House since he 
 was mustered into the military service of the United States aa colonel of the Ninth Regiment of Iowa Vol- 
 unteer Infantry, to wit, since the 24th day of September, A. D. 1861. 
 
 On May 8 ' the report came up in the House and a debate occurred on a motion 
 to postpone until the next session of Congress. The contestant, who had been 
 admitted to the floor and to debate under the provisions of a general order, partici- 
 pated in the debate on this preliminary question. The motion to postpone was 
 agreed to — yeas 79, nays 49. 
 
 On January 20, 1863,^ the report was debated on the constitutional question of 
 qualification, and after a motion to postpone had been defeated — yeas 53, nays 74 — 
 the resolution was agreed to— ayes 65, noes 37. 
 
 Thereupon Mr. Horace Maynard, of Tennessee, raised the question of order that 
 the resolution was in fact one of expulsion, and therefore required a two-thirds vote 
 for its adoption. 
 
 This point of order was debated on January 20,^ and the Speaker * overruled 
 the point of order. 
 
 'Journal, pp. 655, 656; Globe, p. 2021. 
 
 * Third session Thirty-seventh Congress, Journal, p. 212; Globe, p. 403. 
 
 'Globe, pp. 405,406. 
 
 'Galusha A. Grow, ot Pennsylvania, Speaker.
 
 § 491 INCOMPATIBLE OFFICES. 599 
 
 Thereupon Mr. Maynard appealed, and on January 2V the appeal was laid on 
 the table — yeas 82, nays 36. 
 
 Thereupon Mr. Elihu B. Washbume, of Illinois, moved to reconsider the vote 
 whereby the resolution was agreed to, and the motion to reconsider was agreed to — 
 yeas 70, nays 64. 
 
 Mr. Washbume then moved to postpone the subject imtil March 3, the last day 
 of the session. The question was debated at length,^ both as to the status of Colonel 
 Vandever in the light of the constitutional requirement and also in the light of the 
 decision of the Speaker that a majority might pass the resolution. 
 
 After the debate, the House, by a vote of yeas 78, nays 68, agreed to the motion 
 to postpone.' 
 
 No action was taken on ]March 3. 
 
 On February 5, 1863,* Mr. Henry L. Dawes, of Massachusetts, from the Com- 
 mittee on Elections, reported a resolution discharging the Committee on Elections 
 from the further consideration of the case of Bjnngton v. Vandever. 
 
 He explained that the contestant wished to be heard on that branch of the case 
 which included the question whether Mr. Vandever was actually elected. 
 
 Thereupon it was moved to amend the resolution of the committee by substitut- 
 ing resolutions declaring that Mr. Vandever was not elected, and that Mr. Byington 
 was elected. 
 
 After debate the proposed substitute was disagreed to. A motion to reconsider 
 was made, and a motion to lay the motion to reconsider on the table. The latter 
 motion was agreed to — yeas 84, nays 28. 
 
 Then the resolution of the Committee on Elections was agreed to. 
 
 491. The Senate election case of Stanton v. Lane, of Kansas, in the 
 Thirty-seventh Congress. 
 
 A Senator-elect who had, before qualifying, exercised the authority of 
 an army oflacer de facto, was held not to have vacated his seat. 
 
 A State executive having issued credentials in due form on the as- 
 sumption that a Senator had vacated his seat by accepting an army oflace, 
 the credentials were referred and the bearer was not seated. 
 
 Instance wherein a Senator participated in debate on credentials of a 
 claimant for his seat. 
 
 On July 12, 1861,^ the credentials of Frederick P. Stanton, claiming a seat 
 from Kansas, were presented in the Senate. Mr. James H. Lane, who occupied 
 the seat claimed by Mr. Stanton, was present in the Senate and spoke on the motion 
 to refer the papers to the Committee on the Judiciary, which reference was made. 
 
 On August 2, 1861,° the Senate Committee on the Judiciary reported in the 
 contested case of Stanton v. Lane, of Kansas, finding the following facts : 
 
 That the sitting member, the Hon. James H. Lane, was, by the Executive, appointed a brigadier- 
 general in the volunteer forces of the United States on the 20th of June, 1861 ; that he accepted said 
 appointment, and was legally qualified to perform its duties. 
 
 'Journal, p. 215; Globe, p. 427. * Journal, pp. 338, 401; Globe, pp. 742, 964-971. 
 
 ^ Globe, pp. 428-434. ^ pj^st session Thirty-seventh Congress, Globe, p. 82. 
 
 'Journal, p. 219; Globe, p. 434. H Bartlett, p. 637; Globe, p. 406.
 
 600 PRECEDENTS OF THE HOUSE OF BEPBESENTATIVES. § 491 
 
 In the opinion of the committee the office of brigadier-general under the United States is incom- 
 patible with that of member of either House of Congress. By accepting the office of brigadier-general, 
 the sitting member, Mr. Lane, virtually resigned his seat in the Senate, and it became vacant at that 
 
 time. 
 
 On the 8th of July, 1861, the governor of Kansas gave the contestant, Mr. Stanton, a commission 
 in due form appointing him a Senator of the United States from the State of Kansas to fill the aforesaid 
 vacancy, and by virtue of that commission Mr. Stanton now claims his seat. 
 
 The committee therefore recommended resolutions declaring Mr. Lane not enti- 
 tled to the seat, and declaring Mr. Stanton entitled to a seat. 
 
 On August 6 ' the report was considered but not acted on. 
 
 At the next session of Congress, on December 18, 1861,^ when the case came 
 up it was urged that the committee had not been fully informed when it made 
 its report; that the brigadier-generalship to which Mr. Lane had been appointed 
 was not in existence at the time of his appomtment; and that since the office had 
 been created he had not signified his acceptance. The Senate by a vote of yeas 26, 
 nays 9, recommitted the report. 
 
 On January 6, 1862,^ the Judiciary Committee reported again, stating that 
 the committee unanimously foimd that the status of the case was not changed 
 by the additional evidence. 
 
 On Januar}^ 8, 13, 15, and 16 '' the subject was debated at length on a motion 
 to strike the word "not" from the first resolution of the committee: 
 Resolved, That James H. Lane is not entitled to a seat in this body. 
 
 It was contended on the one side that Senator Lane had been appointed to 
 the office of brigadier-general; that such office existed de facto if not de jure; that 
 he accepted the office, taking an oath, issuing a declaration to the people of Kansas, 
 and on Jime 26, 1861, had as brigadier-general made requisitions for supplies. If 
 the President had no authority to make the appointment at the time, yet subse- 
 quent legislation had legalized such emergency acts. 
 
 On the other hand, it was insisted that on June 20, 1861, there was no such 
 office as that to wliich Mr. Lane was said to have been appointed, but that the 
 appointment was in anticipation of the creation of the office ; that Mr. Lane did not 
 qualify as a Senator until July 4, 1861, and prior to that had told the President 
 that he would not accept the army office, having learned that it was incompatible 
 with his office as Senator. The cases of Van Ness, Herrick, Earl, and Mumford 
 were cited to show that his appointment while a Senator-elect did not preclude him 
 from electing to accept the office of Senator by resigning the military office before 
 the meeting of the Senate and his qualification. It was further urged that the oath 
 he took as a brigadier-general was not technically the oath required for the office. 
 Mr. Charles Sumner, of Massachusetts, who opposed the report of the committee, 
 summarized the argument: 
 
 First, that at the time in question General Lane was not a Senator; and secondly, that at the time 
 in question he was not a brigadier. The whole case is unreal. It is a question between an imaginary 
 Senator and an impossible brigadier; or rather it is a question whether an imagined seat in this body 
 ■was lost by any acts under an impossible military commission. 
 
 ' Globe, pp. 450-454. ^ globe, p. 185. 
 
 2 Second session Thirty-seventh Congress, Globe, pp. 127-130. * Globe, pp. 222, 290, 336, 359.
 
 § 492 INCOMPATIBLE OFFICES. 601 
 
 After a thorough debate, on January 16,' the motion to strike out the word ' ' not " 
 was agreed to — yeas 24, nays 16. 
 
 Then the amended resolution, declaring ilr. Lane entitled to the seat, was 
 agreed to. 
 
 The second resolution, relating to ilr. Stanton, was postponed indefinitely. 
 
 492. The case relating to the alleged disqualification of Messrs. Blair 
 and Schenck in the Thirty-eighth Congress. 
 
 A Member-elect was held to have disqualified himself by continuing to 
 hold an incompatible office after the meeting of the Congress. 
 
 A Member-elect may defer until the meeting of the Congress his choice 
 between the seat and an incompatible office. 
 
 Form of resolution declaring vacant the seat of a Member-elect who 
 has accepted an incompatible office. 
 
 On June 13, 1864, ^Ir. Henry L. Dawes, of Massachusetts, from the Committee 
 on Elections, made a report ^ on the cases of Gen. Robert C. Schenck, of Ohio, and 
 Gen. Frank P. Blair, jr., of Missouri, who had held commissions in the Army after 
 their election as ^lembers of Congress. This report gives the following summary of 
 precedents: 
 
 The House has ever been awake to this constitutional guaranty of its independence (Art. I, sec. 6) : 
 "No person holding any office ^ under the United States shall be a member of either House during his 
 continuance in office"), and has never failed when occasion required to resist any invasion of its privi- 
 leges in this particular. In the Seventh Congress (1803) John P. Van Ness, a Representative from the 
 State of New York, accepted the office of major of the militia, under the authority of the United States, 
 within the Territory of Columbia (District of Columbia), and after due examination and report by the 
 Committee of Elections the House unanimously declared that he had "thereby forfeited his seat as a 
 Member of this House." (Contested Elections, Clark and Hall, p. 122.) 
 
 In the Twenty-ninth Congress (1847) Archibald Yell, a Representative from the State of Arkansas, 
 while a Member, accepted the office of colonel of a regiment in the volunteer service of the United States 
 in the war with ilexico. He received his commission from the governor of Arkansas, but was mustered 
 into the service of the United States. The people of Arkansas treated this act as vacating his seat as a 
 Representative in Congress and elected Thomas \V. Newton in his place. When he appeared at the bar 
 of the House to be sworn in, discussion arose upon the question whether the House had any evidence 
 before it of the acts of Mr. Yell which were aDeged to have vacated his seat, and the Globe contains this 
 statement (vol. 17, p. 341): "It now appears by an official statement, made inreply toacallof theHouse, 
 by the Adjutant-General, of the names of Members of Congress who had received commissions and been 
 mustered into the service of the United States, that Archibald Yell was among the number. As soon as 
 the document was read Members withdrew all opposition. Mr. Newton was then qualified and took 
 his seat." The Committee of Elections, to whom his credentials were referred, at a subsequent day of 
 the session made a report (No. 86, second session Twenty-ninth Congress), including also the subject- 
 matter of an inquiry "whether the Hon. Edward D. Baker, a Representative from the State of Illinois, 
 having accepted a commission as colonel of volunteers in the Army of the United States, and being in 
 the service of and receiving compensation from the Government of the United States as such army 
 officer, has been entitled since the acceptance and exercise of said military appointment to a seat as a 
 Member of the House of Representatives." 
 
 This report concluded with a resolution that "Edward D. Baker has not been entitled to a seat as 
 a Member of the House of Representatives since the acceptance and exercise by htm of the military 
 
 'Senate Journal, p. 117; Globe, p. 363. 
 ^ House Report No. 110, first session Thirty-eighth Congress. 
 
 ' Discussion of the distinction in the Government service between an officer and an employee. 
 (Decisions of the Comptroller, vol. 4, p. 696.)
 
 602 PEECEDENTS OF THE HOUSE OF KEPRESENTATIVES. § 492 
 
 appointment of colonel of volunteers from the State of Illinois, in the service of the United States," 
 and also with another resolution that "Thomas W. Newton is entitled to a seat as a Member of the House 
 from the State of Arkansas." This report was not made till February 26, 1847, only seven days before 
 the end of the session. An ineffectual attempt was made on the last day of the session (Globe, vol. 17, 
 p. 573) to call up the report for action. No opposition to the report itself is disclosed upon the record, 
 and the failure to act upon it may fairly be imputed to the pressure of business upon the last day of the 
 session. The same question arose in the last Congress. William Vandever, a Representative from the 
 State of Iowa, accepted, while such Representative, the office of colonel of the Ninth Regiment of Iowa 
 Volunteers. He received his commission from the governor of Iowa, but was mustered into the service 
 of the United States under the law authorizing the raising of volunteers to suppress the rebellion. The 
 question whether he had not forfeited his seat by accepting and discharging the duties of the military 
 office thus conferred upon him was directly raised before the Committee of Elections, by whom an 
 elaborate report was made to the House (Report No. 68, second session Thirty-seventh Congress), con- 
 cluding with a resolution "That William Vandever has not been entitled to a seat as a Member of this 
 House since he was mustered into the military service of the United States as a colonel of the Ninth 
 Regiment Iowa Volunteer Infantry, to wit, since the 24th day of September, A. D. 1861." This resolu- 
 tion was adopted without a division (Globe, vol. 47, p. 405). The vote upon this resolution was after- 
 wards reconsidered and its further consideration postponed until the 3d of March, when, in the pressure 
 of business on the last day of the session, it was not called up. 
 
 The report also gives the following precedent as bearing upon the branch of the 
 question raised particularly by the case of General Schenck: 
 
 In October, 1816, Samuel Herrick, who was then holding the office of United States district attorney 
 for the district of Ohio, was elected one of the Representatives of that State in the Fifteenth Congress, 
 whose regular session did not commence till one year from the December following. Mr. Herrick con- 
 tinued to hold the office of United States district attorney until November 29, 1817, when he resigned 
 that office and entered upon the duties of tlie office of Representative in Congress at the commencement 
 of the regular session on the first Monday of the following month. Upon a proper reference to the Com- 
 mittee of Elections an elaborate report was made in conformity with the views here taken, and concluding 
 with a resolution "That Samuel Herrick is entitled to a seat in this House." (Contested Elections in 
 Congress, p. 287.) This report was very fully and ably discussed, and some doubts seem to have been at 
 first entertained whether, by discharging the duties of the office of United States district attorney while 
 he was a Representative-elect, Mr. Herrick had not disqualified himself from holding the office of Rep- 
 resentative. The resolution confirming him in his seat was nevertheless adopted. Its position was 
 subsequently ratified by the same Congress in two or three other cases involving the same principle, 
 with little or no opposition. And it is believed that the practice of the House from that time to the 
 present has been uniformly in conformity with this position. 
 
 The report concluded with the recommendation of the passage of two resolu- 
 tions, which summarize the two cases: 
 
 Resolved, That Robert C. Schenck, having resigned the office of major-general of volunteers, 
 which he then held, on the 13th day of November, 1863, which resignation was accepted November 
 21, 1863, to take effect December 5, 1863, was not, by reason of having held such office, disqualified from 
 holding a seat as a Representative in the Thirty-eighth Congress, whose first session conmienced on 
 the 7th day of December, 1863. 
 
 Resolved, That Francis P. Blair, jr., by continuing to hold the office of major-general of volun- 
 teers, to which he was appointed November 29, 1862, and to discharge the duties thereof till January 
 1, 1864, the date of his resignation, did thereby decline and disqualify himself to hold the office of 
 Representative in the Thirty-eighth Congress, the first session of which commenced on the first Mon- 
 day in December, 1863. 
 
 The facts on which these resolutions and the report were based were transmit- 
 ted to the House in a message from the President on April 28, 1864.' This message 
 
 ' First session Thirty-eighth Congress, Globe, p. 1939.
 
 § 492 INCOMPATIBLE OFFICES. 603 
 
 was referred to the Committee on Elections, which reported as outHned above. 
 Later, on May 2,' the President transmitted additional facts in response to the 
 request of the House. The committee reported on June 24,'' and on June 29 the 
 resolutions were adopted without debate.' 
 
 Meanwhile, on May 11, 1864, in the Senate Mr. Davis offered a resolution* 
 referring to an alleged arrangement whereby Generals Blair and Schenck were to 
 be allowed to give up temporarily their commissions in the Army while they were 
 in the House, with the understanding that they might withdraw the resignations 
 and return to the field, and declaring such arrangement in derogation of the Con- 
 stitution. The resolution was discussed May 16,^ and referred to the Committee on 
 the Judiciary. On June 30 the Senate agreed to the following resolution, which 
 the Judiciary Committee had reported on July 15:' 
 
 Resolved, That an officer of the United States whose resignation has been duly accepted and taken 
 effect, or who, having been elected a member of either House of Congress, qualifies and enters on the 
 discharge of the duties of a Member, is thereby, in either case, out of the office previously held, and 
 can not be restored to it without a new appointment in the manner provided by the Constitution. 
 
 In the first session of the Thirty-seventh Congress, July 12, 1861, the question 
 was raised by a resolution introduced by Mr. Vallandigham, reciting that Oilman 
 Marston, of New Hampshire; James E. Kerrigan, of New York; Edward McPher- 
 son and Charles J. Biddle, of Pennsylvania, and Samuel R. Curtis, of Iowa, were 
 rumored to have been sworn into the military service of the United States, and that 
 James H. Campbell, of Pennsylvania, had admitted on the floor of the House that 
 he had been so sworn in, and directing the Committee of Elections to inquire 
 whether Members of the House might constitutionally hold positions under the 
 Government in the military service. Messrs. Curtis and Campbell contended that 
 they held commissions from the governors of their States, and were merely State 
 officers loaned to the National Government for the time being. The resolution 
 was laid on the table after a slight discussion — 92 yeas to 51 nays. Mr. Vallandig- 
 ham had previously brought this subject to the attention of the House on July 4 
 before the organization of the House was effected.' 
 
 The subject was also brought up informally in the House in the Fifty-fifth 
 Congress, during the war with Spain.' 
 
 It has been decided that an officer on the retired list of the Army is entitled to 
 receive the salarj' appropriate to his army rank while he is also in receipt of the 
 salary of a Member of Congress.' 
 
 'Globe, p. 2031. 
 
 2 Globe, p. 3242. 
 
 'Globe, p. 3389. 
 
 * Globe, p. 2218. 
 
 ^ Globe, p. 2275. 
 
 5 Globe, p. 3412. 
 
 ' First session Thirty-seventh Congress, Globe, pp. 3, 93. 
 
 'Second session Fifty-fifth Congress, Record, pp. 5406, 5407, remarks of Messrs. Joseph W. Bailey, 
 of Texas, and Charles H. Grosvenor, of Ohio. 
 
 'Decision of Second Comptroller C. H. Mansur in the case of Maj. Gen. Daniel E. Sickles, a Mem- 
 ber of the Fifty-third Congress, February 24, 1894.
 
 (J04 PEECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 493 
 
 493. The examination of 1898 as to incompatible oflices. 
 
 Conclusion of the Judiciary Committee that the member of a commis- 
 sion created by law to investigate and report, but having no legislative, 
 judicial, or executive powers, was not an officer within the meaning of 
 the constitutional inhibition. 
 
 Visitors to academies, regents, directors, and trustees of public insti- 
 tutions appointed by the Speaker under the law are not regarded as offi- 
 cers within the meaning of the constitutional inhibition. 
 
 Discussion of the meaning of the word " offices " as used in the con- 
 stitutional provision prohibiting the Member from holding such as are 
 incompatible. 
 
 On December 21, 1898,' this resolution was agT-eed to by the House: 
 
 Resolved, That the Committee on the Judiciary be, and it is hereby, instructed to ascertain and 
 
 report to this House — 
 
 First. Whether any Memljer of the House ha.s accepted any office under the United States; and 
 Second. Wliether the acceptance of such office under the United States has vacated the seat of 
 
 the Member accepting the same. 
 
 On February 21, 1899, Mr. David B. Henderson, of Iowa, from that com- 
 mittee, submitted a report ^ in accordance with the resolutions of instruction. 
 
 After a careful examination of facts, a review of arguments, and a discussion 
 of the origin and framing of the clause of the Constitution under which the ques- 
 tions arose, the report proceeds as follows in regard to the two branches of the 
 question : 
 
 (1) As to members of commissions : ^ 
 
 While it may be admitted that all of the commissions, examining boards, regents, etc., considered 
 by the committee do differ in many particulars as to their duties, still the legal principles involved 
 in the consideration of this class of public servants apply to all of them, and therefore they will be 
 considered together in discussing the law in respect to them. 
 
 It can not be contended that every position held by a Member of Congress is an office within 
 the meaning of the Constitution, even though the term office may usually be applied to many of these 
 positions. We are therefore led to an analysis and discussion of the word "office." 
 
 The chairman of a committee of Congress is in one sense an officer holding a position different 
 from other members of the committee. Marks of honor and distinction are given to Members of Congress 
 in many ways, but all incident to or growing out of their position as a Member of Congress. It is a 
 mark of distinction to be selected as members of escorts to those of our number who die; designations 
 are made of committees to notify the Senate and the President of certain matters. The mind will 
 
 ' Third session Fifty-fifth Congress. 
 
 2 House Report No. 2205. 
 
 3 On March 2, 1905 (Third session Fifty-eighth Congress, Record, pp. 3849-3851), in the Senate, 
 Mr. Louis E. McComas, of Maryland, submitted the following summary of instances wherein members 
 of Congress had been appointed to commissions: 
 
 "The appointment by the President of Senators, Representatives, and Federal judges upon com- 
 missions to inquire into and settle or arbitrate international disputes in cases of special importance or 
 emergency has been so strongly opposed by several eminent Senators in debate here that I concluded to 
 make and place in the Record the full list of such commissions in their order. The category of the names 
 of those who have served on the commissions and the public events to which the commissions have 
 related, in my humble opinion, prove the proposition with which I will conclude. 
 
 " It has been said that the practice is unconstitutional; that Senators and other officials thus hold 
 two offices — two incompatible offices— at the same time; that the practice is hurtful to the country,
 
 § 493 INCOMPATIBLE OFFICES. 605 
 
 readily run over a list of many positions of trust and honor that are conferred upon Members of Con- 
 gress where no pretense vrill be made that they are offices -within the meaning of the Constitution. 
 
 In United States v. Hartwell (6 Wall., 393) it is laid down that "an office is a public station or 
 employment conferred by the appointment of Government. The term embraces the ideas of tenure, 
 duration, emolument, and duties." 
 
 Elsewhere it is held that an office is "'an emploj-ment on behalf of the Government, in any sta- 
 tion or public trust, not merely transient, occasional, or incidental." (20 John., Rep. 492, 7th Ohio 
 State, 556.) 
 
 A careful consideration of all of the positions above referred to will show that they are merely 
 transient, occasional, or incidental in their nature, and none of them possess the elements of duration, 
 tenure, or emolument. All of these appointees were but instruments to procure detailed information 
 
 injurious to the courts and the House; that it lessens the constitutional power of the Senate and has 
 not benefited the countrj-. 
 
 "In Hartwell's case (6 Wall. . 385) it was said that — 
 
 " ' The term [office] embraces the idea of tenure, duration, emolument, and duties. The duties 
 must be continual and permanent, not occasional or temporarj-.' 
 
 "When President McKinley sent in the names of two Senators and one Representative for con- 
 firmation as commissioners to \Tsit Hawaii, the Senate declined to take action thereon. An eminent 
 Senator expressed the view of the Senate: 
 
 " ' If these gentlemen are to be officers, how can the President appoint them under the Constitution, 
 the office being created during their term, or how can they hold office and still keep their seats in Con- 
 gress? If they are not officers, under what constitutional provision does the President ask the advice 
 and consent of the Senate to their appointment? ' 
 
 "That membership upon such temporary commissions is not the holding of an office, or at least is 
 not the holding of an incompatible office, is affirmed by the practice and by the contemporary construc- 
 tion of all the departments of the Government during a century. The recital of the instances I give is 
 the best evidence upon this point. The most liberal ^^ew as to incompatible offices was shown by the 
 acts of the great Chief Justice and our earlier Presidents. 
 
 "Chief Justice John Marshall accepted that office February 4, 1801, and continued to act as Secre- 
 tary of State under President John Adams, who had appointed him to the highest judicial office, until 
 March 4. 1801. President Jefferson on that day formally appointed Chief Justice Marshall Secretarj^ of 
 State ' until a successor shall be appointed ' — not an appointment for a definite term, but for a temporarj' 
 exigency. 
 
 " In like manner Gen. Samuel Smith, a Member of Congress from Marj-land.was actually in charge 
 of the ^avy Department under President Jefferson from March 31, 1801, until June 13, 1801. 
 
 "The offices thus held were held only by an indefinite tenure temporarily, but I am not now con- 
 cerned with the holding of incompatible offices. I have confined my research to the special commis- 
 sions constituted in whole or part of Senators and Representatives and Federal judges. 
 
 " It is a suggestive fact that the Presidents and Congress from the earliest days of the Republic con- 
 tinued to practice this method of meeting great emergencies. The most striking instances occur at the 
 verj' beginning of our Government and were sanctioned by the men who made the Constitution. Those 
 who had the most to do with that instrument made the least objection to the practice of sending such offi- 
 cials upon such special missions. 
 
 "If the practice be unconstitutional. President Washington and John Jay, who had so much to 
 do with the making and adoption of the Constitution, were the first violators of it. 
 
 "President Washington on April 19, 1794, appointed Chief Justice Jay to be envoy extraordinarj- 
 to Great Britain, and empowered him to negotiate the treaty. The result was the treaty of amity, 
 commerce, and navigation of November 19, 1794, so famous in our historj-. This treaty, which accom- 
 plished the evacuation of the British posts in our countrj', really avoided a war with Great Britain. 
 Mr. Jay, who negotiated it, was Chief Jiistice of the Supreme Court from September 26, 1789, until 
 June 29, 1795. He was Chief Justice during the whole term of his special mission to Great Britain. 
 
 "Oliver Ellsworth, of Connecticut, early took the view of the proposition I am now maintaining, 
 the view which has been so strongly and so well stated here by the very able Senator from Connecticut 
 [Mr. Piatt], who now honors me with his attention. EUsworth was appointed by President John Adams
 
 606 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 493 
 
 for the better infonnation and guidance of Congress and are wholly lacking in the essential elements 
 of an office within the meaning of the Constitution. 
 
 "A public office is the right, authority, and duty, created and conferred by law, by which for 
 a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is 
 invested with some portion of the sovereign functions of the Government to be exercised by him for 
 the benefit of the public." (Mechem's Public Offices and Officers, sec. 1; Matter of Hathaway, 71 
 N. Y., 238-243; 3 Greenleaf (Me.), 481; Public Officers, Throop, sec. 6; Olmstead v. The Mayor, etc., 
 42 N. Y. Sup. Ct., 481.) 
 
 It has been held that these functions must be either legislative, executive, or judicial, and that 
 to constitute the person an officer he must have conferred upon him either legislative, executive, or 
 judicial powers. (Mechem's Public Offices, etc., sec. 4, and cases cited.) 
 
 a joint envoy extraordinary to France, with William Vans Murray, of Maryland, and William R. Davie, 
 of North Carolina, on February 26, 1799. The convention of peace, commerce, and navigation of Sep- 
 tember 30, 1800, was the result of this commission's work. That treaty avoided actual hostilities with 
 France, and it also secured a recognition by France of the rights of neutral vessels and prospective 
 indemnity for depredations by privateers and men-of-war. The echoes of this treaty still linger in the 
 spoliation claims in our annual appropriation bill to-day. 
 
 "Mr. Ellsworth did not resign the office of Chief Justice until after the making of the treaty. 
 
 "In 1800 Senator Uriah Tracy during the summer visited and examined the state of the garrisons 
 in the Northwest Territory, and it appears that Tracy was paid $1,232 for compensation and $1,985.05 
 for expenses, in addition to his pay as a Senator, without objection. Mr. Wolcott, Secretary of the Treas- 
 ury, maintained that Senator Tracy's employment was an executive agency and not an office of the 
 United States, contending that such powers pertained to the Executive and had been generally exercised. 
 Compared with our view to-day, such construction was very liberal. 
 
 "David Meriwether, of Georgia, was a Member of the House of Representatives from 1802 to 1807. 
 Under President Jefferson Mr. Meriwether was appointed, on April 28, 1804, a commissioner to conclude 
 a treaty with the Creek Indians until the end of the next session of the Senate. 
 
 "The Indians were then regarded as dependent and yet semi-independent nations. 
 
 "Samuel Nelson, of New York, was associate justice of the Supreme Court from 1845 to 1872, and 
 he was appointed by President Grant on February 10, 1871, as one of the members of the Joint High 
 Commission to negotiate the "Treaty of Washington." This treaty was concluded May 8, 1871, and 
 signed by Justice Nelson. It is the historic treaty for the settlement by arbitration of the Alabama 
 claims, for the determination of fisheries rights and claims, canal navigation, transit of merchandise in 
 bond, and the submission of the boundary question of Article I of the treaty of 1846 to arbitration by 
 the Emperor of Germany. 
 
 "Frank Morey, of Louisiana, while a member of the House of Representatives, was appointed by 
 President Grant honorary commissioner to the Vienna Exposition of 1873, under the act of February 
 14, 1873. 
 
 "It is not a very marked case, and yet it comes within the rule of objection stated by the very 
 strict construction I have heard maintained on this floor. 
 
 "Under the act of August 5, 1892, Senator William B. Allison, of Iowa, the leader of the Senate, 
 its guide, philosopher, mentor, and friend, who now sits before me. Senator John P. Jones, of Nevada, 
 and Representative James B. McCreary, of Kentucky, were appointed by President Harrison on Novem- 
 ber 3, 1892, Commissioners to the International Monetary Conference, held at Brussels November 22, 
 1892. 
 
 "President Harrison, on June 6, 1892, appointed John M. Harlan, then and ever since an associate 
 justice of the Supreme Court, and John T. Morgan, then and ever since a Senator of the United States 
 from Alabama, as arbitrators on behalf of the United States under the treaty of February 29, 1892, 
 between the United States and Great Britain, to determine the jurisdictional rights of the United States 
 in waters of the Bering Sea for the preservation of the fur-seal herds. 
 
 "President Cleveland, on January 4, 1896, appointed David J. Brewer, then and ever since an 
 associate justice of the Supreme Court, and Richard H. Alvey, then and continually until January 1, 
 1905, chief justice of the court of appeals of the District of Columbia, to be members of the Venezuelan 
 Boundary Commission. Justice Brewer was president of the Commission, a tribunal appointed by
 
 § 493 INCOMPATIBLE OFFICES. 607 
 
 Says the author: 
 
 "Sec. 4. Office involves delegation of sovereign functions. The most important characteristic 
 which distinguishes an office from an employment or contract is that the creation and conferring of an 
 office involves a delegation to the indi\'idual of some of the sovereign functions of government, to be 
 exercised by him for the benefit of the public; that some portion of the sovereignty of the country, 
 either legislative, executive, or judicial, attaches, for the time being, to be exercised for the public 
 benefit. Unless the powers conferred are of this nature, the individual is not a public officer." 
 
 This involves necessarily the power to (1) legislate, or (2) execute law, or (3) hear and determine 
 judicially questions submitted. 
 
 Therefore, mere power to investigate some particular subject and report thereon, or to negotiate 
 
 President Cleveland to make an independent examination of the merits of the case respecting a 
 boundary line between Venezuela and Great Britain. Neither Govenunent was formally represented 
 before the Commission, but the question before it was afterwards, and partly because of the investigation 
 by this Commission, submitted to arbitration between Great Britain and Venezuela practically at the 
 instance of our Government. 
 
 "President Cleveland appointed William L. Putnam, then and ever since a circuit judge of the 
 United States, on July 11, 1896, a commissioner under the convention of February 8, 1896, between the 
 United States and Great Britain, to determine through the joint commission the British claims for 
 damages in certain cases additional, and also in the cases mentioned in the findings of fact by the 
 fur-seal tribunal at Paris in 1893. Judge Putnam was our commissioner, and Judge George Edward 
 King, of the supreme court of Canada, was the commissioner on the part of Great Britain, and on 
 December 17, 1897, this commission awarded damages in favor of British claimants to the amount of 
 $473,151.26. 
 
 "President McKinley, on April 14, 1897, appointed Senator Edward 0. Wolcott, of Colorado, the 
 eloquent and brilliant Senator the tidings of whose death we have received to-day, and whose death 
 has caused profound sadness in this Senate and among all the people of the country, special envoy to 
 France, Germany, Great Britain, and other countries to seek an international agreement to fix the 
 relative value between gold and silver under the act of March 30, 1897. 
 
 "President McKinley, on July 13, 1898, appointed Senator Shelby M. CuUom, of Illinois, the 
 present occupant of the chair, and Senator John T. Morgan, of Alabama, and Representative Robert 
 R. Hitt, of Illinois, to serve until the end of the next session of the Senate, as commissioners to recom- 
 mend legislation concerning the Hawaiian Islands under the joint resolution of July 7, 1898. It is 
 true the Senate declined to confirm them when asked and did not appear to regard this as other than 
 a legislative committee, not requiring executive nomination and confirmation by the Senate. 
 
 "President McKinley, on July 16, 1898, appointed Senator Charles W. Fairbanks, of Indiana; 
 Representatives Nelson Dingley, of Maine, and Senator George Gray, of Delaware, as a joint high com- 
 mission to settle differences between Great Britain and the United States in respect of Canada, and this 
 commission was appointed under the deficiency act of July 7, 1898. Senator Gray resigned later to 
 accept a place upon another commission. Mr. Dingley served until his death. Senator Charles J. 
 Faulkner, of West Virginia, and Representative Sereno E. Payne, of New York, were appointed to fill 
 these vacancies. Senator Fairbanks and former Senator Faulkner and Mr. Payne still remain members 
 of that Commission. 
 
 "President McKinley, on September 13, 1898, appointed Senator Cushman K. Davis, of Minnesota, 
 Senator William B. Frye, of Maine, and Senator George Gray, of Delaware, as members of a commission 
 to negotiate a treaty with Spain. This Commission met at Paris on October 1, 1898, and concluded the 
 treaty of Paris on December 10, 1898, the famous treaty which restored peace between the two countries, 
 assured the independence of the people of Cuba, the acquisition of Porto Rico, Guam, and the Philip- 
 pines by the United States, and, all must concede, greatly advanced the prestige of the United States. 
 
 "President Roosevelt, on March 4, 1903, appointed Senator Henry Cabot Lodge, of Massachusetts, 
 a member of the tribunal to consider and decide the boundary line between Alaska and Canada under 
 the provisions of the convention between the United States and Great Britain signed at Washington, 
 January 24, 1903. The decision of the Alaskan Boundary Tribunal, rendered October 20, 1903, was 
 very favorable to the contention of the United States, and of marked importance in settling the last of 
 the series of questions of difference between the two nations."
 
 608 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 493 
 
 a treaty of peace, or on some commercial subject, and report without power to make binding on the 
 Government, does not constitute a person an officer. 
 
 "It (public office) implies a delegation of a portion of the sovereign power to, and the possession of 
 it by, the person filling the office, and the exercise of such power within legal limits constitutes the 
 correct discharge of the duties of such office." (3 Greenleaf (Me.), 481; Mechem's Public Office, etc., 
 sec. 2; Olmstead v. The Mayor, 42 N. Y. Sup. Ct., 481; Public Officers, Throop, see. 6.) 
 
 Again, the employment must not be merely transient, occasional, or incidental. 
 
 In United States v. Hartwell (G Wall., 385) the court held that the term pul>lir office embraces 
 the ideas of tenure, duration, emolument, and duties, and that the duties were continuing and perma- 
 nent, not occasional or temporary. 
 
 In United States v. Germaine (99 U. S. Sup. Ct., 508) the question of who is or who is not a public 
 officer was again up, and the court said: 
 
 "If we look to the nature of defendant's employment we think it equally clear that he is not an 
 officer. In that case (referring to United States %'. Hartwell) the court said the term embraces the ideas of 
 tenure, duration, emolument, and duties, and that the latter were continuing and permanent, not occa- 
 sional or temporary. In the case before us the duties are not continuing and permanent, and they are 
 occasional and intermittent. * * * He is required to keep no place of business for the public use. 
 He gives no bond and takes no oath, unless by some order of the Commissioner of Pensions of which we 
 are not advised. * * * He is but an agent of the Commissioner, appointed by him, and removable 
 by him at his pleasure, to procure information needed to aid in the performance of his own official 
 duties. * * * There is no penalty for his absence from duty or refusal to perform, except his loss of 
 the fee in the given case." 
 
 The duties of the commissioners appointed under the statutes (to which attention will be called, 
 are not continuing or permanent; they have no place of business for the public use, or even for their 
 own use; they give no bond and take no oath. In fact, they are mere agents appointed by direction 
 of Congress for the purpose of gathering information and making recommendations for its use if the 
 Congress sees fit to avail itself of the labors of the commission. The commissioners appointed under 
 these statutes or resolutions can not be compelled to attend or act, and in the broadest sense they are 
 mere agents of the Congress. These commissioners are not to execute any standing laws which are the 
 rules of action and the guardians of rights, nor have they the right or power to make any such law, nor 
 can they interpret or enforce any existing law. 
 
 Under a statute of Maine the governor was authorized "to appoint one or more agents for the preser- 
 vation of timber on the public lands and for other purposes," and the judges held that these agents were 
 not a civil office of profit under the State, although they were entitled to compensation. (See 3 Green- 
 leaf Reports (Me.), p. 481.) 
 
 In United States v. Hendee (124 U. S., 309) it was held that a paymaster's clerk in the Navy is an 
 officer of the Navy, and in United States v. Mouat (124 U. S., 303) it was held that such paymaster's clerk, 
 appointed by a paymaster in the Navy, with the approval of the Secretary of the Navy, is not an officer 
 of the Navy in the sense that he is an officer of the United States. 
 
 The constitution of the State of New York, 1846, article 6, section 8, prohibits the judges of the 
 court of appeals and justices of the supreme court from exercising any power of appointment to public 
 office. 
 
 Section 16, chapter 280, laws of 1847, conferred upon the chancelU)r power to issue a commission to 
 some person empowering him to act as a surrogate in a particular case when by reason of statutory 
 disqualifications the officers designated to act could not do so. It was contended that such person when 
 designated to act as surrogate became a public officer, inasmuch as for the time being and in the matter 
 before whom he was to act as a judicial officer with full power to hear, try, and determine the particular 
 case, but the court of appeals In matter of Hathaway (71 N. Y., 238) held: 
 
 "The term 'public office,' as used in the constitution, has respect to a permanent public trust or 
 employment, to be exercised generally and in all proper cases. It does not include the appointment, 
 to meet special exigencies, of an individual to perform transient, occasional, or incidental duties, such 
 as are ordinarily performed by public officers; as to such appointments the legislature is left untram- 
 meled, and at liberty to invest the courts with power to make them." (Church, Ch. J., Andrews and 
 Miller, JJ., dissenting.) 
 
 In Hall V. State (39 Wis., 79, chap. 40, laws of 1857) [the law] appointed certain-named persons " com-
 
 § 493 INCOMPATIBLE OFFICES. 609 
 
 missioners to make a geological, mineralogical, and agricultural survey of the State," and provided that 
 such commissioners should arrange and distribute the functions of such survey by mutual agreement. 
 The law provided a salary and provided fur filling vacancies, and gave the governor power to remove 
 any member for incompetency or neglect of duty. The court held that these commissioners were 
 officers. The court said: 
 
 "The geological survey commissioners were appointed directly by the legislature; no specific term 
 of office was fixed (except by the governor, whose power to do so may well be doubted); provision was 
 made by law for removing them for cause and for filling vacancies; their salaries were paid out of the 
 State treasury, and their functions were not of merely private, local, or temporary concern, but related 
 to the material and permanent interests of the whole State. The duty imposed upon them was an 
 important public trust, to be exercised for the benefit of all the people of the State, and coidd only be 
 discharged properly by gentlemen of high attainments in physical science. * * * It may safely be 
 asserted that any person charged by law with the performance of public functions affecting the general 
 interests of society, especially if he be elected thereto by the people or appointed directly by the legis- 
 lature, and who receives his compensation out of the public treasury, is a public officer, and as such can 
 have no vested right in his office, unless secured by the constitution. * * * It may be difficult to 
 draw the exact line between an office and a mere sei-vice or employment; but, as already observed, when 
 public functions are conferred by law upon certain persons elected by the people or appointed by the 
 legislature, if those functions concern the general interests of the State, and are not of a nature merely 
 local or temporary, such persons are public officers, especially if they are paid a salary for their services 
 out of the public treasury." 
 
 In re Corliss (11 R. I., 638) the question was up whether the office of a commissioner of the United 
 States Centennial Commission is an office of trust under Article II, section 1, of the Constitution of the 
 United States, and it was held that he was such an officer. The law creating that commission provided 
 "for the holding of an exhibition of American and foreign arts, products, and manufactures, under the 
 auspices of the Government of the United States," and the functions of such commissioners were to 
 continue until the close of the exhibition, and their duties were "to prepare and superintend the execu- 
 tion of a plan for holding the exhibition." By the act of Congress approved June 1, 1872, the duties and 
 functions of the commission were further increased and defined, and a corporation was created called 
 "The Centennial Board of Finance," to cooperate with the commission and to raise and disburse the 
 funds. It was to be organized under the direction of the commission. The commission was also to adopt 
 plans for the erection of buddings, and the corporation created was to erect them in accordance with 
 these plans. 
 
 The act also provided that the commission should "have power to control, change, or revoke all 
 such grants, and shall appoint all judges and examiners and award all premiums." The commission was 
 also "to supervise the closing up of the affairs of said corporation, to audit its accounts, and submit in a 
 report to the President of the United States the financial results of the centennial exhibition." The act 
 also provided " no compensation for services shall be paid to the commissioners or other officers provided 
 by this act from the Treasury of the United States." The only other officers provided for by the act 
 were alternates to serve as commissioners when the commissioners were unable to attend. 
 
 The court properly held that these commissioners were officers of the United States. They were 
 certainly vested with sovereign functions of the Government which were to be exercised by them for 
 the benefit of each and every State in the Union, and for the benefit of all the people of the United States. 
 
 In Bunn v. The People (45 111., 397) the court held: 
 
 "A person employed for a special and single object, in whose employment there is no enduring 
 element, nor designed to be, and whose duties when completed, although years may be required for 
 their performance, ipso facto terminate the employment, is not an officer in the sense in which that term 
 is used in the constitution of Illinois." 
 
 In re Attorneys, etc. (20 Johnson, N. Y.), the court defines the legal meaning of the term "office" to 
 be "an employment on behalf of the Government in any station or public trust not merely transient, 
 occasional, or incidental." 
 
 In roatter of Hathaway (71 N. Y., 238-243) the court said: 
 
 " ' Public office ' as used in the Constitution has respect to a permanent trust to be exercised in behalf 
 of the Government, or of all citizens who may need the intervention of a public functionary or officer, 
 
 59&4^voL 1—07 39
 
 610 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 493 
 
 and in all matters within the range of the duties pertaining to the character of the trust. It means a right 
 to exercise generally and in all proper cases the functions of a public trust or employment." 
 
 In McArthur v. Nelson (81 Ky., 67) the question was up as to whether certain commissioners were 
 district officers, and the case says: 
 
 "The first section of the act authorizes the judge of the circuit court to appoint three commissioners, 
 residents of the district, who shall hold their office at the will and pleasure of the judge. It is made the 
 duty of the commissioners to have the court-house constructed at a cost not exceeding $50,000, and, to 
 enable them to raise this money, they are authorized to issue bonds, with coupons attached, bearing 
 interest at 5 per cent, payable semiannually; and, to redeem the bonds and pay the interest, they are 
 further empowered to levy an annual tax on the real and personal property in the district not exceeding 
 12 cents on the $100, etc. * * * They are not district officers within the meaning of section 10 of 
 article 6 of the constitution, but are the mere agents for the district, required by the act to discharge 
 certain duties with reference to the building of the court-house, and when those duties end, their employ- 
 ment terminates." 
 
 In United States v. Germaine (99 U. S., 508) the question as to who are and who are not officers of the 
 United States was quite fully considered. Under section 4777 of the Revised Statutes, United States, it 
 is provided: 
 
 "That the Commissioner of Pensions be, and he is hereby, empowered to appoint, at his discretion, 
 civil surgeons to make the periodical examinations of pensioners which are or may be required by law, 
 and to examine applicants for pensions where he shall deem an examination by a surgeon appointed by 
 him necessary; and the fee for such examinations, and the requisite certificates thereof in duplicate, 
 including postage on such as are transmitted to pension agents, shall be two dollars, which shall be paid 
 by the agent for paying pensions in the district within which the pensioner or claimant resides, out of 
 any money appropriated for the payment of pensions, under such regulations as the Commissioner of 
 Pensions may prescribe." 
 
 It was held in the case cited that the appointees under this statute are not officers of the United 
 States but mere agents of the Commissioner of Pensions. 
 
 The report next applies the principles discussed to the commissions as to 
 which question had been raised. 
 
 It is perfectly clear, therefore, that the commissioners appointed under the act approved July 
 7, 1898, "An act making appropriations to supply deficiencies in the appropriations for the fiscal year 
 ending June 30, 1898, and for prior years, and for other purposes," the resolution approved July 7, 
 1898 (Public Resolution — No. 51) entitled "Joint resolution to provide for annexing the Hawaiian 
 Islands to the United States," and the act approved June 18, 1898, entitled "An act authorizing the 
 appointment of a nonpartisan commission to collate information and to consider and recommend legis- 
 lation to meet the problems presented by labor, agriculture, and capital," are not persons "holding any 
 office under the United States." 
 
 They are persons designated by authority of Congress to make certain investigations, inquiries, 
 etc., or to conduct certain negotiations preliminary to and as a basis for possible action by the Congress 
 of the United States or by one branch of it. They neither make law, execute law affecting the rights 
 of the people, nor perform judicial functions. These commissioners are and are intended to be mere 
 advisory agents of the Congress of the United States. Their investigations are confined to some par- 
 ticular matter or subject, and they are not required to take an oath of office. They have no power to 
 decide any question or bind the Government or do any act affecting the rights of a single individual 
 citizen. 
 
 If the House or Senate authorizes or directs the Speaker or President of the Senate, as the case 
 may be, to appoint a special committee to investigate some particular matter or subject and report 
 and recommend legislation, can it be claimed that an office is created or that the members of the House 
 or Senate appointed hold "an office?" Suppose the President of the United States is authorized to 
 make the appointments. Does this create offices, and are the appointees "officers?" 
 
 The acts performed are for the information of the Congress, and it alone. Their suggestions and 
 recommendations have no force; they may or may not be adopted. To make their suggestions or 
 recommendations operative, bills or resolutions must be introduced embodying the provisions recom-
 
 § 493 INCOMPATIBLE OFFICES. 611 
 
 mended, or their substance, and these must be enacted into law. If a treaty is recommended by peace 
 commissioners it must be submitted to the Senate and by it ratified. The acts of such a commission 
 do not bind the President, the Senate, or the Government. Then such commissioners neither make, 
 execute, nor interpret law. They do not possess or exercise any of the sovereign power of the Govern- 
 ment of the United States. 
 
 That the Senate may feel that it ought to ratify or approve the recommendations of such a commis- 
 sion can make no difference, the fact remains that their acts are not binding upon anyone or upon 
 any departments of the Government. 
 
 If the Congress of the United States should see fit by joint resolution to authorize the President 
 to appoint ten persons as commissioners, whose duties it should be to investigate the condition of the 
 people residing in Porto Rico and recommend laws suitable to their government, and should appropriate 
 money to pay the expenses of the commission, would anyone contend that such commissioners when 
 appointed would become other than mere agents of the Congress for the purposes specified? Would 
 they possess or exercise legislative, executive, or judicial functions or powers? Such commissioners 
 would possess the mere naked power to investigate and report, and their action would conclude no one, 
 nor would they execute or interpret any law. Their action would not affect in the slightest degree 
 the personal or property rights of a single citizen of the Republic. They would be answerable to no 
 power for misconduct, they would be bound by no oath. 
 
 "The officer is distinguished from the employee," says Judge Cooley, "in the greater importance, 
 dignity, and independence of his position; in being required to take an official oath, and perhaps to give 
 an official bond; in the liability to be called to account as a public offender for misfeasance or nonfea- 
 sance in office, and usually, though not necessarily, in the tenure of his position." 
 
 Attorneys and counselors admitted to practice in the courts of the United States are not officers 
 of the United States. (Ex parte Garland, 4 WaU. (U. S.), 333; see also, In re Robinson, 131 Mass., 376.) 
 
 In People v. Nichols (52 N. Y., 478), one of the judges of the court of appeals was designated by 
 statute as one of three persons to examine and report upon the genuineness and value of certain relics 
 which the State proposed to purchase, and upon the certificate of these commissioners the purchase 
 price was to be paid. The court held that this was not an office or a public trust within the meaning 
 of the constitution of that State, which prohibits such judge from holding an office or public trust. Said 
 the coiu-t: " It is very plain that the iloing of such an act, a single act like this, is not within the meaning 
 of the constitutional prohibition against holding any other office or public trust" (p. 485). 
 
 Applying these principles to what is known as the Postal Commission the committee finds that 
 those Members of the House of Representatives appointed or designated as commissioners under public 
 act 131, "An act making appropriations for the fiscal year ending June 30, 1899," are not, nor are any 
 of them, officers under the United States within the meaning of the Constitution. 
 
 In respect to the Industrial Commission, the committee finds that those Members of the House of 
 Representatives appointed or designated as commissioners under public act No. 146, "An act authorizing 
 the appointment of a nonpartisan commission to collate information and consider and recommend leg- 
 islation to meet the problems presented by labor, agriculture, and capital," approved July 7, 1898, are 
 not, nor are any of them, officers under the United States within the meaning of the Constitution. 
 
 In respect to the Canadian Commission the committee finds that those Members of the House of 
 Representatives appointed or designated as commissioners under public act No. 182, "An act making 
 appropriations to supply deficiencies in the appropriations for the fiscal year ending June 30, 1898, and 
 prior years, and for other purposes," are not, nor are any of them, officers under the United States within 
 the meaning of the Constitution. 
 
 In respect to the Hawaiian Commission the committee finds that those Members of the House 
 of Representatives appointed or designated as commissioners under public resolution No. 51, "Joint 
 reso lution providing for annexing the Hawaiian Islands to the United States," are not, nor are any of 
 them, officers under the United States within the meaning of the Constitution. 
 
 In respect to visitors to the Militaiy Academy, etc., the committee finds that those Members of 
 the House of Representatives appointed and designated as visitors to the Military Academy at West 
 Point, to the Naval Academy at Annapolis, and the regents and directors and consulting trustees to the 
 various public institutions in the District of Columbia and appointed by the Speaker of the House, 
 are not, nor are any of them, officers under the United States within the meaning of the Constitution.
 
 612 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 494 
 
 494. The examination of 1898 as to incompatible oflB.ces, continued. 
 
 In 1898 the Judiciary Committee found that four Members, by ac- 
 cepting commissions in the Army and being mustered into the service 
 after taking the oath as Representatives, thereby vacated their seats. 
 
 An opinion of the Judiciary Committee that persons on the retired 
 list of the Army do not hold oflB.ce under the United States in the constitu- 
 tional sense. 
 
 (2) As to Members of Congress who had accepted commissions in the United 
 States Army the report ' held : 
 
 Before entering into a discussion of the law governing Members of Congress holding commissions 
 in the United States Army, it is but due to the committee to say that it has approached the considera- 
 tion of the questions involved with a delicacy growing out of their appreciation of the patriotic services 
 tendered to their Government and rendered by these officers. Every opportunity has been given to 
 them to be heard. The conmiittee has proceeded with deliberation and care, and there is not a 
 member of the Committee on the Judiciary but entertains the highest respect for the gentlemen inter- 
 ested. But the resolution was sent to this committee by a vote of the House, and it becomes our duty 
 to consider and report to the House our findings of the law and fact governing these cases. 
 
 The most exhaustive treatment that has been given to these questions will be found in Report 
 No. 110, Thirty-eighth Congress, first session, in the matter of the military appointment of Hon. F. P. 
 Blair, jr., which is known as the "Dawes Report." The feeling of this committee can not be better 
 expressed than by quoting a paragraph from that report: 
 
 "These questions are all of the gravest importance, and have ever been so considered whenever 
 they have arisen. They affect seriously the privileges and the independence of the House, and can not 
 be disregarded without trifling with both; and when the House of Representatives shall cease to guard 
 its own privileges, and even its own independence, it will cease also to be worthy of a free people, and 
 be fit only to be cast out." 
 
 The facts already found in this report clearly show that four Members of the present House of Rep- 
 resentatives, after being duly elected, qualified, and acting as such, accepted commissions in the 
 United States Army in the Spanish-American war, and acted in the Army as United States officers 
 under such commissions. 
 
 The first question that presents itself is this: 
 
 Does a Representative in Congress, duly elected, vacate such office by accepting, during the term 
 for which elected and after he has qualified as such, a commission, issued by the President, as an oflScer 
 in the Army of the United States? is the practical question suggested by the inquirj^ directed by the 
 House to be made by the Committee on the Judiciary. 
 
 The question is not now presented for the first time, and we have, therefore, precedent, as well 
 as the plain and unequivocal language of the Constitution, to guide us in answering the question 
 propounded. 
 
 Section 6 of Article I of the Constitution of the United States provides as follows: 
 
 "No Senator or Representative shall, diu-ing the time for which he was elected, be appointed to 
 any civil office under the authority of the United States, which shall have been created, or the emolu- 
 ments whereof shall have been increased during such time; and no person holding any office under the 
 United States shall be a Member of either House during his continuance in office." 
 
 A person holding a commission in the Army or Navy of the United States and not on the retired 
 list is an officer of the United States and he holds that office under the United States. The office is 
 created by law and filled by appointment of the President, when such appointment is confirmed by 
 the Senate. Such a person is not, however, a civil officer — he does not hold a "civil oflice." 
 
 It follows that a person while holding the position of Senator or Representative in the Congress 
 of the United States may be appointed to an office in the Army or Navy either created or the emolu- 
 
 ' Mr. John J. Jenkins, of Wisconsin, dissented from this report.
 
 § 494 INCOMPATIBLE OFFICES. 613 
 
 ments of which have been increased during the time for which he was elected, or to any office in that 
 service. 
 
 (Storj- on the Constitution, sections 791-792.) 
 
 The first prohibition relates solely to a ''civil office." May such person accept such new office 
 or any office under the United States and still hold his position as Representative in Congress'? 
 
 It is evident that it was the policy of the framers of our Constitution to prohibit Senators and 
 Representatives in Congress from creating civil offices or increasing the salaries pertaining to civil offices 
 and then enjoying the fruits of their own work during the term for which they were elected. This pro- 
 vision removes, to some extent, the temptation to bad or unnecessary legislation by Members of Congress. 
 It is true that they may vote to create a civil office or to increase the emoluments thereof and be appointed 
 thereto after their term has expired, but the idea seems to have prevailed that a newly created office 
 might, and probably would, be filled by the appointing power at once, or at least before the legislators 
 creating it would be out of office and so situated as to accept its benefits or emoluments. 
 
 But the Constitution goes further and in the same connection declares that "no person holding 
 any office under the United States shall be a Member of either House (of Congress) during his continu- 
 ance in office." (The office held by him under the United States.) 
 
 The second prohibition relates to 'any office" held under the United States whether it be civil 
 or military or naval. It is evident that the framers of the Constitution used the word "civil" under- 
 standingly and intentionally in the first prohibition and for the purpose of distinguishing civil offices 
 from military and naval offices. It is also evident that the framers of the Constitution used the word 
 "any" in the second prohibition intentionally and for the purpose of declaring that no Senator or Rep- 
 resentative in Congress shall hold an office under the United States and at the same time "be a 
 Member of either House" of Congress. 
 
 It has been suggested that it was the purpose of the framers of the Constitution to declare that a 
 person shall not act as a Senator or Representative in Congress during the time he holds an office under 
 the United States, and that the effect of the constitutional provision is to permit a Senator or Repre- 
 sentative in Congress to hold his position as such Representative and at the same time hold, accept, 
 and perform the duties of another office under the United States, his right to act in the first capacity 
 being suspended while holding and performing the duties of the second. 
 
 Such a construction of this section of the Constitution imputes to its framers the inability to express 
 their ideas with any clearness whatever. It is plainly declared that "no person shall be a Member of 
 either House dm-ing his continuance in office" if he holds any office under the United States. This 
 language goes to the very existence of the individual as a Member of the Senate or House of Representa- 
 tives while holding another office under the United States. Had suspension of the power to act been 
 aimed at, apt words expressing the purpose would have been used. The words "act as" would have 
 been substituted for "be." "Be" means "to exist, have existence or being." Therefore the Consti- 
 tution declares that no person holding any office under the United States shall exist or have existence 
 or being, while in such office, as a Member of either House of Congress. 
 
 At the present time, when the patriotic impulses of our people have been so deeply stirred, it may 
 seem unpatriotic to say this — to assert that a Member of this House may not accept a commission in the 
 Army, go upon the field of battle and fight for his country, and still retain his seat in the House of Rep- 
 resentatives; but the manifest dangers that would follow any other construction of the Constitution 
 (even were any other construction possible), must make the meaning of the framers of that instrument 
 plain, and no mere patriotic sentiment should be permitted to override the plain language of the funda- 
 mental written law. 
 
 Both Story and Rawle, in their able and admirable works on the Constitution, have accepted the 
 language of the Constitution of the United States above quoted as prohibitory, and without discussion 
 have proceeded to point out the wisdom of the provision. 
 
 Rawle says, chapter 19: 
 
 "But although no rea-sons merely of a legal nature might be opposed to it, the impolicy of admitting 
 such officers to compose a part of the legislature is exceedingly plain." 
 
 Again, he .says: 
 
 ■'The public officer being therefore considered with us as having actual living duties which he is 
 bound to perform, and as having no more time than is necessary to perform them, the Constitution 
 expressly excludes him from a seat."
 
 614 PRECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 494 
 
 Story says, Vol. I, section 869: 
 
 "The other part of the clause which disqualifies persons holding any office under the United States 
 from being members of either House during the continuance in office has been still more universally 
 applauded, and has been vindicated upon the highest grounds of public policy." 
 
 In section 871 he says: 
 
 "It is true that an acceptance of any office under tlie Crown is a vacation of a seat in Parliament. 
 This is wise, and secures the people from being betrayed by those who hold office and whom they do not 
 choose to trust." 
 
 The Hon. James Wilson, LL. D., one of the associate justices of the Supreme Court of the United 
 States, and professor of law in the college of Philadelphia (and also a signer of the Declaration of Inde- 
 pendence and a member of the convention that framed the Constitution of the United States), in his 
 lectures delivered in 1790-91 (I Wilson's Works, pp. 446^49) takes the same view of the Constitution, 
 and after condemning in severe language the English practice of appointing members of Parliament to 
 other offices under the Crown and then permitting them to be reelected to Parliament while holding 
 such offices, says: 
 
 "The result is that a provision by which the members of the legislature will be precluded, while 
 they remain such, from offices, finds, with great propriety, a place in the Constitution of the United States. 
 In this important particular it has a decided superiority over the constitution of Great Britain." 
 
 This language, contemporaneous with the adoption of the Constitution itself, and coming from one 
 of the framers of that instrument, is significant. 
 
 And see also Angell and Ames on Corporations, section 434, Wilcox on Municipal Corporations, 
 section 617, in which the doctrine is distinctly laid down that "a resignation by implication may not 
 only take place by an abandonment of the official duties, as before mentioned, but also by being appointed 
 to and accepting a new office incompatible with the former one." 
 
 Again it is stated: 
 
 "It is a rule of general law that an officer who accepts another appointment inconsistent with the 
 first is held to have thereby resigned the first." (Rawle on the Constitution, chap. 19, p. 184.) 
 
 And again we find the doctrine clearly laid down as follows: 
 
 "By force of the constitutional inhibition against the holding of two lucrative offices by the same 
 person at the same time, the acceptance of and qualification for a second office incompatible with the 
 precedent one, ipso facto, vacates the precedent office; and neither a quo warranto, nor other aniotion, 
 from the office thus vacated is necessary before the \ac8ncy can be supplied." (Biencourt v. Parker, 
 27th Texas, 558; Rawle on the Constitution, chap. 19, p. 184.) 
 
 Clearly one accepting an office under the United States, he having pieviously qualified as a Member 
 of Congress, vacates his seat by such acceptance, and there is no way that he can again hold a seat in 
 Congress but through a reelection liy the people and then again becoming qualified as a Member of 
 Congress without the disqualification of holding another office under the United States. 
 
 The report then goes on to cite the cases of Yell, Vandever, Blair, Herrick, 
 Earle, Schenck, Lane, and continues: 
 
 It may be claimed that an exception is found in the action of the Thirty-seventh Congress when on 
 July 12, 18G1, Mr. Vallandigham offered the following resolution: 
 
 "WTiereas it is nmiored that Oilman Marston, of New Hampshire; James E. Kerrigan, of New 
 York; Edward McPherson and Charles J. Biddle, of Pennsylvania, and Samuel R. Curtis, of Iowa, 
 holding seats in this Congress as Members thereof, have been sworn into the military service of the 
 United States and hold military offices under the authority of the same; and 
 
 "Whereas James H. Campbell, of Pennsylvania, also holding a seat in this House as a Member 
 thereof, has admitted upon the floor of this House that he has been so sworn and does so hold office as 
 aforesaid: Therefore, 
 
 '^Resolved, That the Committee of Elections be instructed to inquire, and without unnecessary 
 delay to report, whether the gentlemen above named, or any others claiming or holding seats as Members 
 of this House and at the same time holding any militarj' office under the authority of the United States, 
 are constitutionally disqualified to be Members of this House by holding such military office."
 
 § 494 INCOMPATIBLE OFFICES. 615 
 
 This resolution upon its introduction was discussed and the facts denied, and on motion was laid 
 on the table without being sent to the Committee on Elections or to any other committee. It was 
 laid upon the table by a vote of 92 yeas to 51 nays, such gentlemen as Roscoe Conkling, Crittenden, 
 Holman, Voorhees, and others voting in the negative. Nothing was settled, excepting that in the then 
 temper of the House and country the House was determined not to allow Mr. Vallandigham's motion 
 to be investigated either as to the law or the facts. If it settles anything it demonstrates what many 
 will remember, that this was at a heated and exciting time in the historj' of our country, and the majority 
 of the House was in no temper to receive suggestions from Mr. Vallandigham, who at that time was far 
 from being in harmony, as many believed, with the burning patriotic sentiment of the country in the 
 North. It should be borne in mind also that notwithstanding this action the same Congress, as shown 
 in this report, laid down the doctrine that military officers of the United States could not at the same 
 time be Members of the House. 
 
 It is evident that it was the policy of the framers of our Constitution to prohibit Senators and Rep- 
 resentatives in Congress while remaining such from holding any other office under the United States, 
 and no plainer language to declare the purpose could have been used than the words of the Constitu- 
 tion, viz: "No person holding anj' office under the United States shall be a member of either House 
 during his continuance in office." The framers of the Constitution intended to keep the legislative, 
 judicial, and executive branches of our Government separate and distinct; to prevent Cabinet officers 
 from being Members of Congress, and thereby giving undue power to the President and his immediate 
 advisers; to prevent the centralization of power and office-holding power in a few hands; to prevent 
 judges from acting at the same time as legislators and thus concentrating power in the courts; to avoid 
 the manifold dangers to the existence and perpetuity of our free institutions and a representative gov- 
 ernment that would follow a concentration of the legislative and judicial or the legislative and executive 
 (the military and naval power being a branch of the executive) in a few and the same hands. 
 
 Without this constitutional restraint it would be possible for a President and the Congress to act in 
 collusion; for the Congress to create high military and naval positions without limit and for the Presi- 
 dent to fill these offices from the ranks of unscrupulous, unpatriotic, and ambitious Senators and Repre- 
 sentatives in Congress (the Senate confirming as a matter of course), and as the President is Commander 
 in Chief of the Army and Navy, to thus concentrate all power in the hands of the executive branch 
 of the Government. These military legislators might increase the Army, control the elections by 
 the bayonet, and government by the people and for the people would end. Two printed lines in the 
 Constitution of the United States has made all this impossible. 
 
 The thirteen infant colonies, subsequently the thirteen original States of this Union, were 
 dependencies of Great Britain, and in England a person holding a seat in the House of Commons at 
 once vacates it by accepting any public office under the Crown. (1 Storj' on the Constitution, sec. 871.) 
 
 This had been the law of England for more than a hundred years prior to the Revolution. It is 
 true, however, that persons holding such an office might be reelected to the House of Commons without 
 vacating the office and then hold both at the same time. The evils and the alleged advantages of this 
 system are many and have been ably pointed out by many writers. It is fair to presume that the 
 framers of our Constitution carefully considered this question, and inserted the language quoted for 
 the express purpose of avoiding the aljuses that had sprung up under the English system and of making 
 our liberties the more secure. 
 
 So long as we keep the legislative, the judicial, and the executive departments of this Government 
 separate and keep the legislative independent of the military and naval power, seeing to it that com- 
 petent and patriotic men administer the affairs of each of these branches of Government, we may hope 
 for national prosperity and to preserve our liberties and maintain good government. But when those 
 who make the laws shall at the same time also interpret and execute them, or when those who make 
 the laws hold high places in our Army and Navy, powerful branches of the executive, the lust of power 
 may and probably will lead to encroachments upon the rights and liberty of the citizens, and our 
 form of government will l)e at an end. 
 
 There would be no danger to the Republic in allowing the gentlemen whose seats are in question 
 here to hold their places as Representatives in Congress and their commissions in the Army at the same 
 time, but the question is one of law, and involves a principle of vast importance which must be met 
 and decided \Tithout reference to individual cases.
 
 616 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 494 
 
 If it be proper and constitutional for one general in the Army to hold the position of Senator or 
 Representative in Congress at the same time, it is also lawful for the President to appoint every Senator 
 and Representative in Congress to a high place in the Army and Navy, and the result would be to 
 transform the National Legislature into a band of military ofhcials, and, while there is no present danger 
 that this will be done, it is easy to see, in the light of history, that this very danger was guarded against 
 by the framers of the Constitution, who believed that the safety of the Republic depended upon the 
 making of encroachments by the military upon the legislative powers impossible. 
 
 The result is and must be that the acceptance of an office in the Army under the United States 
 by a Representative in Congress at once and by force of this constitutional provision vacates his 
 position as such Representative and he ceases to be such. Such acceptance of office is per se equivalent 
 to an absolute resignation of the seat in Congress. (See the numerous cases hereafter cited.) 
 
 As already stated, there is no prohibition upon the President in appointing Senators or Representa- 
 tives in Congress to offices in the Army or Navy. It is evident that in times of war it may be necessary 
 to create a large niunber of military and naval offices, and the public good and safety may demand 
 that such offices be at once filled by men holding seats in the National Legislature. Soon after the 
 close of our civil war many of our most able, experienced, and distinguished generals, after being 
 mustered out, were elected to Congress. Had a war broken out with some foreign nation, and a large 
 increase of the Army or Navy, or both, been made necessary, and had a score of important army and 
 naval positions been made necessary and created by the Congress, the public good and safety would 
 have demanded the appointment of such men as Logan and Garfield to high military commands. 
 
 During the late war with Spain tlie appointments of General Wheeler from the House of Repre- 
 sentatives and of General Sewell from the Senate to high offices in the Army were commended as wise 
 and proper. It was, however, incumbent upon these gentlemen to elect whether they could best serve 
 their country in its legislative halls or upon the field of battle, and he who accepted the position in the 
 Army necessarily and, ipso facto, vacated his position as a Member of the Congress of the United States. 
 (See cases cited hereafter.) 
 
 It may be said that there are many offices under the United States of little importance and carrying 
 little or no pay, and that it can not be possible that the framers of the Constitution contemplated for- 
 bidding a Member of the National Legislature to hold one of these small offices. This is not the question. 
 No line could be drawn between the large and the small offices. The principle declared was that a 
 Member of the Congress of the United States shall not hold any office under the United States and 
 retain his seat as a national legislator. 
 
 It will not do to say that the appointment of a Representative in Congress to an office under the 
 United States and its acceptance by him merely operates to suspend the power of the legislator to act, 
 for, if so, the President of the United States by collusion with the Congress might appoint a majority 
 of the legislators chosen by the people to high offices, and thus destroy a quorum in the law-making 
 body, and as the people would be powerless to elect others in their places, there being no vacancies, 
 the power to enact laws for the protection of the people and the preservation of the Republic woidd be 
 destroyed. Thus by indirection and collusion between the executive and the legislative bodies might 
 the destruction of the Republic be accomplished. In any event great inconvenience would result. 
 
 It may be politic and wise at times for some legislator skilled in military science to abandon the 
 halls of Congress for the field, but when he does this his place should be filled by the people of his district 
 or State, who have the right to be represented at all times by a living, acting Member. It was not 
 intended by the framers of the Constitution that a Congressional district or a State should go unrepre- 
 sented while the elected Member or Senator, with the approval of the President and Senate, sees fit to 
 absent himself and serve as a military or naval officer, or as a judge, or in some other office under the 
 United States. The Senator or Representative in Congress is a representative of the people, and is 
 elected by them to perform certain specified constitutional duties in their interest, and he has no right 
 to enter some other public office under the United States and, even temporarily, abandon the performance 
 of the duties of the position to which he was elected. 
 
 It is evident that our Constitution contemplates, and that public policy demands, that no Repre- 
 sentative in Congress shall suspend by his own act, and without the consent of his constituents, his power 
 and duty to act as their Representative during such time as he sees fit to serve in some other obtainable 
 Government office. From a legal standpoint it is immaterial whether such action is taken from 
 patriotic or selfish motives. 
 
 I
 
 § 494 IJJCOMPATIBLE OFFICES. 617 
 
 It may be ai^ed that our executive and legislative bodies arc composed of men too pure minded 
 and patriotic to endanger the nation. This is undoubtedly true as matters now are, but once open the 
 door, extend the temptations, and who can foresee the results? 
 
 It may be suggested that there is not an entire and complete severance of legi.slative and judicial 
 or of legislative and executive powers, duties, and functions under the Constitution. This is true in a 
 limited and restricted sense. The President of the United States must approve acts of the Congress before 
 they become laws, unless passed over his veto, and, as he is to execute the laws, we have here the Execu- 
 tive taking part in the enactment of laws. So the President, heads of Departments, and judges may 
 openly suggest and recommend legislation. As the President is also the Commander in Chief of the Army 
 and Na\'>', we find here a mild and modified blending of the legislative and militarj' powers. But the 
 President is not a member, even ex officio, of the legislative branch of the Government. So the Senate 
 forms an integral part of the court for the trial of impeachments. Again, both the Senate and House act 
 judicially in determining the rights of persons to seats in those bodies, respectively. 
 
 After quoting Black's constitutional law on this point, the report continues: 
 
 It must be remembered that our Constitution was framed soon after the close of the Revolutionary 
 war, during the exciting times of the French Revolution, and that it was the declared piupose of the 
 founders of oiu- Republic in establishing its system of government to establish and perpetuate by consti- 
 tutional guaranties the rights and liberties of the citizen. 
 
 See debates where this very provision of the Constitution was discu.ssed and adopted. (CompUa- 
 tion of Senate election cases, Senate Mis. Doc, second session Fifty-second Congress (vol. 6), pp. 13-19.) 
 
 We may well ask, and the inquiry is a pertinent one, who in this Republic desires to see a single 
 Member of the National Legislature under the absolute command of the President of the United States? 
 And who desires to see generals of the Army with the Army under their command and bound to implicit 
 obedience, exercising power as legislators or clothed with the power to pass from the Army into Congress 
 and from the Congress into the Army, exercising the powers of either position without reference to the 
 will of the people and only as the President might command? 
 
 It can not be that the framers of the Constitution wrote therein a provision so repugnant to the spirit 
 prevailing in that body and among the people — a provision that might completely subordinate the leg- 
 islative to the militarj- power. In this country we do not fear an encroachment by the military 
 upon the legislative power, because of this very provision, which makes it impossible for an officer in the 
 military' department to hold a place in the legislative, and for the further reason that the legislative 
 body, by refusing to raise taxes or vote supplies or appropriate money, may absolutely cripple the 
 military and naval organizations. But fill oiu' legislative halls with army officers, or with those who 
 may swing back and forth at their election, or, in some cases, place therein a small number, and a mUi- 
 tarj' despotism will in the end usurp the government in fact, even if the name and form remain the same. 
 
 It may be suggested that militar>' officers after being retired and placed on the retired list have been 
 members of Congress. 
 
 This is true; but it is settled law that persons on the retired list of the j\jmy do not hold office under 
 the United States in the constitutional sense. (People v. Duane, 121 N. Y., 367; In re Hathaway, 71 
 K. Y., 238; U. S. v. Hartwell, 6 Wall., 385; U. S. v. Germaine, 99 U. S., 508; U. S. v. Tyler, 105 U. S., 
 244.) 
 
 It may be contended that persons on the retired list of the Army do hold ofiice under the United 
 States, citing Badeau v. United States (130 U. S., 439), but this authority does not so hold. That case 
 simply relates to salarj' under particular statutes. 
 
 These persons are still in the service, but hold no office unless assigned to duty. 
 
 To hold an office under the United States the person must occupy a public station or employment 
 conferred by the appointment of government; and it embraces tenure, duration, emoluments, and 
 duties. 
 
 Says the court in 212 New York, page 373: 
 
 "It is difficult to conceive of the existence in this country of a mOitary office without the power of 
 command, the right of promotion, or the obligation to perform some duty." 
 
 And for the reason that retired army officers are not entitled to promotion, do not perform duty, and 
 exercise no command, it is held that when retired they cease to be officers. 
 
 It remains to consider what action, if any, is necessarj' on the part of the House of Representatives.
 
 618 PRECEDENTS OF THE HOUSE OF EEPKESENTATIVES. § 494 
 
 It is the settled and unquestioned law in England and the United States that — 
 
 "The appointment of a person to an office incompatible with one already held by liim is valid, and 
 he has a right to elect. (Angell and Ames on Coriaorations, 255.) If he accepts, takes the oath, and 
 enters on the duties of the second office, the first office is absolutely determined. (People v. Carrique, 
 2 Hill, 93; Rex v. Trelawney, 3 Burr, 1G16 (opinion by Lord Mansfield); Milward v. Tliatcher, 2 Term 
 Rep. (Dumforth & East), 87; Gabriel v. Clark, Cro. Cas., 138; Rex v. Godwin, Doug., 383, note 22; Rex 
 V. Patteson, 4 Bran. & Adol., 9; Willcock on Municipal Corp., 240, p. 617; Dillon on Municipal Corp.. 
 3d ed.,sec. 225; People ex rel. Kelly, 77 N. Y., 510; People v. Nostrand, 46 N. Y., 381; People v. Board 
 of Police, 35 Barb., 540: Horton v. Parsons, 37 Hun., 46; Commonwealth v. Hawkes, 123 Mass., 525 (per 
 Gray, C. J.); State v. Butz, 9 S. C, 156; Stubbs v. Lee, 64 Me., 195; State v. Draper, 45 Mo., 355; Cotton 
 X. Phillips, 56 N. H., 220; Kerr v. Jones, 19 Ind., 351; Regents of the University v. Williams, 9 Gill. & 
 Johns. (Md.), 365; State v. Kirk, 44 Md., 401; Foltz u. KerlLn, 105 Md., 221; People v. Hamifarr 96 
 lU., 420; State v. Hutt, 2 Ark., 282; State v. West, 33 La. Ann., 1261.)'' 
 
 In People v. Nostrand, supra, the court says: 
 
 "It is a settled rule that the acceptance of an incompatible office operates as a resignation of the 
 incumbent of the office then held by him. " 
 
 In People v. Kelly, supra, the court said: 
 
 "The moment he accepted the new office the old became vacant. His acceptance of the one 
 was an absolute determination of his right to the other and left him no shadow of title, so that neither 
 quo warranto nor a motion was necessary (citing cases). These cases also show that this would be so 
 at common law and independent of the statute. * * * The office was and is as vacant as if Mr. 
 O'ReUley had never been bom; his removal is as complete as if caused by death. WTien he accepted 
 the new office, the other ceased to have an incumbent. " 
 
 Says Angell and Ames on corporations, first edition, 255: 
 
 "This is an absolute determination of the original office and leaves no shadow of title to the pos- 
 oessor, so that neither quo warranto nor a motion is necessary before another may be elected. " 
 
 Said Parke, J., in Rex v. Patteson, supra: 
 
 "Where two offices are incompatible they can not be held together, is founded on the plainest prin- 
 ciples of public policy, and has obtained from very early times." 
 
 This rule is not limited to corporate offices, but extends both in principle and application to all 
 public offices. (Dillon on Mun. Corp., 3d ed., sec. 227; Glover on Corp., 139.) 
 
 The whole question is somewhat fully discussed in McCrary on Elections (3d ed.), sections 302- 
 904, inclusive. 
 
 Is the position or office of Representative in Congress incompatible with any other office under 
 the United States? 
 
 The Constitution itself answers the question when it declares "and no person holding any office 
 under the United States shall be a member of either house during his continuance in office. " 
 
 This is a constitutional declaration that the two positions are incompatible. In the case of Stan- 
 ton II. Lane (Compilation of Senate Election Cases, p. 181, where the report of the Senate committee 
 on the Judiciary is found in full) the report says: 
 
 "In the opinion of the committee the office of brigadier-general under the United States is incom- 
 patible with that of member of either House of Congress. By accepting the office of brigadier-general the 
 sitting Member, Mr. Lane, virtually resigned his seat in the Senate, and it became vacant at that time.' ' 
 
 In Kerr v. Jones (19 Ind., 351), the court held: 
 
 "The offices of reporter of the Supreme Court and colonel of militia are incompatible, and the 
 acceptance of the latter vacates the former. " 
 
 In addition to these authorities, the report in the cases of Blair and Schenck 
 is quoted at length, after which the argument proceeds: 
 
 Again, Article I, section 1, of the Constitution says: 
 
 "All legislative powers herein granted shall be vested in a Congress of the United States which 
 shall consist of a Senate and House of Representatives. " 
 
 The powers of Congress are then specified. 
 
 Article II, section 1, says: "The executive power shaU be vested in a President of the United 
 States of America." Section 2: "The President shall be Commander in Chief of the Army and Navy 
 of the United States and of the militia, " etc. Article III, section 1: " The judicial power of the United 
 States shall be vested in one Supreme Court and in such inferior courts, " etc.
 
 § 494 INCOMPATIBLE OFFICES. 619 
 
 It is therefore apparent that it was not intended that the duties of those three departments should 
 be performed by the same man or bodies of men. 
 
 ■'WTiether offices are incompatible depends upon the charter or statute and the nature of the 
 duties to be performed. (1 Dillon on Mun. Corp., 3d ed., sec. 227; Milward v. Thatcher, 2 Term Rep. 
 (D. & E.), 87; People v. Carrique, 2 HiU, 93.) 
 
 "Incompatibility in offices exists where the nature and duties of the two offices are such as to 
 render it improper from considerations of public policy for one incumbent to retain both. (1 DOlon 
 Mu. Corp., 3d ed., sec. 227 and note; Kerr v. Jones, 19 Ind., 351.)" 
 
 The light of the common law, of the Constitution, of the fact that a person should not at the same 
 time both make and execute the law. and that the legislative should not be subservient to the Execu- 
 tive, it is clear that the position of Representative in Congress and of an officer in the Army of the United 
 States are incompatible offices. 
 
 The duties of a Member of the National Legislature demand his presence in the legislative cham- 
 bers at Washington, making laws, as a Representative of the people, while the duties of a military officer 
 demand his presence in other places at all times and that he engage himself in executing the laws of 
 Congress under the command of the President. 
 
 It is true that the mere impossibility of the incumbent of two offices being present at all times to 
 perform the duties of each does not make them incompatible, but — 
 
 ' 'Offices are said to be incompatible and inconsistent, so as not to be executed by the same person 
 when from the multiplicity of business in them they can not be executed with care and ability, and 
 when their being subordinate and interfering with each other it induces a presumption that they can 
 not be executed with impartiality and honesty." (5 Bacon's Abridgement, Title Offices, K; Public 
 Offices; Throop, sec. 33; People v. Green, 58 N. Y., 304-305, per Folger, C. J.) 
 
 Is it proper and public policy for the officers of the Army and Navy acting as legislators to appro- 
 priate the money for the support of these departments, expend it as they see fit under laws of their own 
 making, while governed and restrained only by such limitations and restrictions as they see fit to place 
 upon themselves? 
 
 If their power as legislators is suspended only while holding offices in the Army or Na\'y, they 
 may first (and in anticipation of commissions) make obnoxious laws and then go into the military and 
 naval serv-ice to execute them, leaving the people powerless, for while there is no possible quorum to 
 do business there are no vacancies in either House, and hence a repeal of obnoxious laws or the enact- 
 ment of new ones is made impossible. Even repentant and patriotic Representatives would be unable 
 to return to the halls of legislation, unless by the consent of the President, without committing the crime 
 of desertion and incurring the death penalty. Even the court of impeachment might be in the Army 
 and Na\'y, unable to convene, and the whole Government would be in the hands of what might prove 
 to be an ambitious and unscrupulous Executive. 
 
 It is no answer to say, what we all concede, that our present patriotic Executive is above sus- 
 picion. What is constitutional to-day will be so until the fundamental law is changed. We are building 
 for the centuries and to avoid all probable, if not all possible, dangers. Our fathers had all these dangers 
 in mind when the Constitution was framed. 
 
 In Indiana, State r. Allen (21 Ind., 516), the coiu-t went so far as to hold that an enlistment in the 
 Army of the United States for three years, or during the war, was an abandoimient and vacation of a civil 
 office held under the State. (See also Willcock on Corp., 238. But see Bryan v. Cattell, 15 Iowa, 537.) 
 
 The question may be asked. What will be the situation if a person holding a commission in the 
 Army of the United States is elected to Congress and, without resigning his office in the Army, presents 
 himself as a Member of the House? In such case does he vacate the Army position? Assume that 
 he refuses to resign either and claims to act in both positions. It will be time enough to cross that bridge 
 when reached. It is clear, however, that in such case he is not entitled to his seat in Congress and 
 should not be sworn in or allowed to act. 
 
 It follows that the seats of those Members of the House of Representatives in the Fifty-fifth Con- 
 gress who entered the Army as officers, commissioned by the President, during the late war with Spain, 
 and took the oath and acted as such, are vacant, and have been since they accepted their commissions 
 in the Army. The only action necessary is to so declare by resolution, as matter of convenience and 
 to aid the Speaker and others in discharging their public duties. No act or resolution of Congress can 
 change the legal effect of their acts.
 
 620 PKECEDENTS OP THE HOUSE OF EEPEESENTATIVES. ' § 494 
 
 Our attention has been called to the case of Bryan v. Cattell (15 Iowa, 538), as sustaining the dor- 
 trine that a Member of Congress might hold a military appointment in the Army. But this case will 
 not sustain the doctrine. Bryan was appointed a captain in the Army, being at the time district attorney 
 for the fifth judicial district of Iowa, for four years commencing with the 1st day of January, 1869. At 
 that time there was no provision of law against holding two offices, but by chapter 54, laws of 1862, 
 it was provided as follows: 
 
 "The acceptance of a commission to any military office, either in the militia of this State, or in 
 the volunteer service of the United States, which requires the incumbent in the civil office to exercise 
 his military duties out of the State for a period not less than sixty days." 
 
 This was enacted as a ground for the vacation of any civil office where the officer had entered the 
 United States Army. 
 
 Captain Bryan sued for his salary for the entire period covered by his election. The court denied 
 that for such part of the time as came after the enactment just quoted. This clearly sustains the posi- 
 tion that with the provisions of Article I, section 6, clause 2, United States Constitution, the office 
 would have been declared vacant by the Iowa court. For the period prior to the enactment just quoted 
 the court allowed the Captain his salary as district attorney upon the ground that he might discharge 
 the duties of district attorney and also the duties of captain. The language of the court is: 
 
 "It by no means necessarily follows that the person in the military service might not discharge 
 all the substantial duties of the attorneyship. It is scarcely probable that he could or would, and yet 
 he might." 
 
 Upon this line of thought, not at all sustained l)y the current authorities, they allowed Captain 
 Bryan to recover for that portion of his salary for the time heretofore stated. But the court laid down 
 this doctrine in the same decision: 
 
 "If a party accepts another office which, within the meaning of the law and the case is incompat- 
 ible with that which he holds, we have no doubt but the first one would become vacant." 
 
 We can well understand how the very patriotic chief justice. Judge Wright, in the great patriotic 
 State of Iowa, then throbbing with very generous impulses for the Government, would use the reason- 
 ing quoted in respect to the possibility of his discharging the duties of the two offices. But this case, 
 taken as a whole, thoroughly sustains the position taken by the committee, and when we are confronted 
 with the constitutional provisions it is absolutely certain that had such a case arisen as a Member of 
 Congress holding a commission in the Army, Judge Wright and the supreme court of Iowa would have 
 held, as Congress as ever held, that the offices were absolutely incompatible. 
 
 We have then, in considering this matter, two kinds of incompatibility in respect to offices: First, 
 where in the very nature of the two offices they are incompatible and can not be held by the same 
 person at the same time. Clearly, for reasons above given and sustained by the authorities without 
 reference to the Constitution, the office of Member of Congress and an officer in the Army of the United 
 States are incompatible and can not be held at the same time. But while we have considered this view 
 of the case fully it was not really necessary, for the constitutional provision in itself makes it absolutely 
 impossible to hold these two offices at the same time. 
 
 The committee therefore recommend to the House the adoption of the following resolution : 
 
 " Resolved, That Joseph Wheeler, a Representative in the Fifty-fifth Congress of the United States 
 from the Eighth district of the State of Alabama; Edward E. Robbins, a Representative in the Fifty- 
 fifth Congress of the United States from the Twenty-first district of the State of Pennsylvania; David 
 G. Colson, a Representative in the Fifty-fifth Congress of the United States from the Eleventh district 
 of Kentucky, and James R. Campbell, a Representative in the Fifth-fifth Congress of the United States 
 from the Twentieth district of the State of Illinois, by accepting commissions in the Army of the United 
 States, and being mustered into such service after being sworn in as such Representatives, thereby 
 vacated their seats as such Representatives and ceased to be members of this House as of the dates they 
 accepted such military offices, respectively, and are not now members of the Fifth-fifth Congress of the 
 United States." 
 
 On March 2 ' this report was called up for action on the resolution relating to 
 the army officers. Mr. John F. Lacey, of Iowa, having raised the question of con- 
 
 ' Record, p. 2751.
 
 § 495 INCOMPATIBLE OFFICES. 621 
 
 sideration, the House, by a vote of 77 3-eas and 163 nays, declined to consider the 
 resolution. 
 
 495. The House has distinguished between the performance of paid 
 services for the Executive by a Member, and the acceptance of an appoint- 
 ment to an incompatible oflBce. 
 
 The House has investigated the constitutional right of a Senator to 
 perform services for the Executive. 
 
 On January 3, 1822,* Mr. Daniel P. Cook, of Illinois, offered a resolution of 
 inquiry directing the Secretary of the Treasury to report, among other things, the 
 names of the persons appointed to examine the various land offices of the United 
 States. This resulted in developing the fact that a Senator of the United States 
 had been appointed a.s one of the examiners, and an examination of the subject 
 by a select committee appointed as follows: Messrs. Cook, Jonathan Russell, of 
 Massachusetts; Cadwallader D. Coldcn, of New York; Lewis IklcLane, of Delaware; 
 David Trimble, of Kentucky; Andrew Stevenson, of Virginia, and William Lowndes, 
 of South Carolina. 
 
 On March 29, 1822,' Mr. McLane^ submitted a report from this committee: 
 
 That, in the year 1820, Jesse B. Thomas, esq., a Senator of the United States, from Illinois, was 
 permitted by the Secretary of the Treasury to examine the ofEcps in Ohio, Indiana, Illinois, and Mis- 
 souri, for which as appears by the documents before the committee, he received a sum amounting to 
 the allowance which has been estal)lished since the year 1817. * * * 
 
 The committee are clearly of opinion that the examination of the land offices by Jesse B. 
 Thomas, esq., was not a violation of the Constitution of the United States. 
 
 That instrument forbids the appointment of Members of Congress, during the time for which they 
 were elected, to any civil office, created, or the emoluments whereof shall have been increased, during 
 that time; and, also, prevents any person holding an office under the Government from being a Member 
 of Congress during his continuance in office. * * * 
 
 But your committee are of opinion that the duty of examining the land offices is not such an office 
 as was contemplated by the Constitution of the United States, which opinion seems to have received 
 the sanction and regidated the practice of the Government since the adoption of the Constitution, by 
 those who bore a principal share in composing it, and must, therefore, be supposed to have understood 
 its real import. 
 
 The committee refer to the appointment of Mr. Tracy, a Senator of the United 
 States, by President Adams, in the year 1800, to inspect the posts on the northern 
 and northwestern frontier. For this service, Mr. Tracy received a liberal compen- 
 sation, and extra mileage, which is stated on the records of the Senate of that day. 
 Under the Administration of Mr. Jefferson, Mr. Dawson, a Member of the House of 
 Representatives from Virginia, was appointed as the bearer of a treaty to France, 
 and was paid for performing the duty; and during the Administration of the same 
 President, Mr. Smith, a Senator from Tennessee, was appointed a commissioner to 
 treat with the Indians, and actually executed two treaties imder this appointment. 
 They also refer to the instance, at a still more recent period, during the Adminis- 
 tration of President Madison, of the appointment of Mr. Worthington, a Senator, 
 and Mr. Morrow, a Representative from Ohio, to negotiate with the Indians. In 
 
 'First session Seventeenth Congress, Journal, pp. Ill, 284; Annals, pp. 635, 829, 912, 1113. 
 
 ^Annals, pp. 1407-1414; Journal, pp. 410, 470. 
 
 ^The Journal says Mr. Cook submitted the report (Journal, p. 410).
 
 622 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 496 
 
 each of these cases, the individuals referred to executed the trusts confided to them, 
 still retained their seats in Congress, and, La the Senate, passed upon their owti acts. 
 
 The committee next proceeded to consider the law of April 21, 1808, "An act con- 
 cerning contracts." They found that the words of the act were broad, but did not 
 consider that they were intended to include a case like that tmder examination. 
 By various examples of Members and Senators who had performed services for the 
 Executive Department, the committee concluded that the examination of land 
 offices was not among the inhibited functions. 
 
 Therefore the committee recommended no action. But Mr. Cook moved the 
 adoption of the following: 
 
 Resolved, That the employment of Members of Congress by the Executive, or any executive officer 
 of the United States, in the performance of any public service, during the continuance of their member- 
 ship, for which they receive compensation out of the Public Treasiuy, is inconsistent with the inde- 
 pendence of Congress, and in derogation of the rights of the people, and, if it be not already, ought 
 to be prohibited. 
 
 On April 18 Mr. Cook called this resolution up for consideration, but the House 
 declined to consider it. 
 
 496. The House has declined to hold that a contractor under the Gov- 
 ernment is constitutionally disqualified to serve as a Member of the House. 
 
 Discussion of the meaning of the word " officer " in the constitutional 
 provision relating to the qualification of Members. 
 
 On February 24, 1806,' Mr. John Randolph, of Virginia, after some general 
 remarks on the independence of the membership of the House, offered the following : 
 
 Whereas it is provided by the sixth section of the first article of the Constitution of the United 
 States that no person holding any office under the United States shall be a Member of either House of 
 Congress during his continuance in office: Therefore, 
 
 Resolved, That a contractor under the Government of the United States is an officer within the 
 purview and meaning of the Constitution, and, as such, is incapable of holding a seat in this House. 
 
 Resolved, That the union of a plurality of offices in the person of a single individual, but more 
 especially of the military with the civil authority, is repugnant to the spirit of the Constitution of the 
 United States and tends to the introducing of an arbitrary government. 
 
 Resolved, That provision ought to be made by law to render any officer in the Army or Navy of the 
 United States incapable of holding any civil office under the United States. 
 
 After debate, in which the meaning of the word officer as used by the Constitu- 
 tion was discussed at length, the first resolution was decided in the negative — yeas 25, 
 nays 26. 
 
 On the second resolution there was debate, it being urged that it was not the 
 duty of the House to construe the Constitution ; that in several instances like that of 
 General Wilkinson, governor of the Northwest Territory, offices had been combined 
 in the same person to advantage, etc. The resolution was disagreed to — yeas 31, 
 nays 81. 
 
 On April 2 the third resolution was agreed to by the House — yeas 94, nays 21 — 
 and a committee was appointed to prepare a bill. This bill (H. R. 136) passed the 
 House, but did not become a law, the Senate postponing it. 
 
 ' First session Ninth Congress, Journal, pp. 295, 349, 359 (Gtales & Seaton ed.); Annals, pp. 507, 
 880-892, 923-930, 935, 1011.
 
 § 497 INCOMPATIBLE OFFICES. 623 
 
 497. Tlie election case of George Mumford, of North Carolina, in the 
 Fifteenth Congress. 
 
 A collector of the Federal direct tax, whose office expired after his elec- 
 tion but before he took his seat as a Member of the House, was held 
 entitled to the seat. 
 
 On February 6, 1818/ the Committee on Elections reported in the case of George 
 Mumford, of North Carolina, who had been appointed a principal assessor in 1813 for 
 the collection of direct taxes and internal duties, and who had not resigned the ofSce 
 on December 1, 1817, when he qualified as a Member of the House of Representatives. 
 
 The comjnittee make the following explanation in regard to the office: 
 
 The act of July 22, 1813, under which Mr. Mumford held his appointment, was prospective and 
 without limitation. No law then existed laj-ing a direct tax. But, as Congress intended resorting to 
 that sj'stem of revenue, it was enacted "that, for the piu^ose of assessing and collecting direct taxes," 
 the United States should be divided into collection districts, and a principal assessor appointed for each 
 district. If this act has neither expired nor been repealed Mr. Mumford is still in office, and can not 
 rightfully be a Member of this House. But by the second section of the act to provide additional 
 revenues, etc., approved January 9, 1815, the said act was repealed, except so far as the same respected 
 collection districts, internal duties, and the appointment and qualification of collectors and assessors; 
 in all which respects it was enacted that the said act should be and continue in force for the purposes of 
 the last-mentioned act. The act of July 22, 1813, so far as the same was not repealed, was thereby limited 
 to the duration of that act, and was continued in force only for its purposes. By that act a direct tax of 
 $6,000,000 was annually laid upon the United States, and apportioned agreeably to the provisions of the 
 Constitution. At the first session of the Fourteenth Congress that act was modified by repealing so 
 much thereof as laid an annusl tax of six millions, by reducing the same to three millions, and by limiting 
 its continuance to one year; and it was expressly enacted that all the provisions of the act of January 9, 
 1815, except so far as the same had been varied by subsequent acts, and except the first section thereof 
 (which related to the apportionment of the tax), should be held to apply to the tax of three millions 
 thereby laid. Thus the act of July, 1813, was again limited, and it was continued in force for the purposes 
 of the three million tax laid March 5, 1816. Whenever those purposes were fulfilled that act expired, 
 and, of course, all offices created by it ceased to exist. 
 
 The committee found from official sources that the entire tax assessed in the 
 district for which ^Ir. Mumford was collector was accoimted for previous to the 1st 
 of December, 1817, and that no official duty remained to be performed by Mr. Mum- 
 ford. His office therefore expired previous to bis taking his seat in the House. 
 
 As a part of their report the conunittee included a letter from Mr. Mumford, in 
 which, after stating the case, he argued at length its constitutional aspects. 
 
 On March 21, 1818, after the report had been considered in Committee of the 
 Whole, the House agreed to the following resolution, which had been recommended 
 by the Committee on Elections: 
 
 Resolved, That George Mumford is entitled to a seat in this House. 
 
 498. The South Carolina election case of Elias Earle in the Fifteenth 
 Congress. 
 
 A Member-elect who continued in the office of postmaster after his 
 election, but resigned before taking his seat, was held to be entitled to 
 the seat. 
 
 ' First session Fifteenth Congress, Contested Election Cases in Congress from 1789 to 1834, p. 316
 
 624 PRECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 499 
 
 On January 5, 1818/ the Committee on Elections reported in the case arising 
 as to the quaUfications of Mr. Elias Earle, of South CaroHna. The committee 
 reported the following facts: In April, 1815, ]\ir. Earle was appointed postmaster 
 at Centerville, S. C. On September 10, 1816, Mr. Earle mailed his resignation as 
 postmaster to the Postmaster-General. His successor was appointed but never 
 commissioned, so Mr. Earle continued to superintend the post-office until June 12, 
 1817, when his connection with it ceased. 
 
 Mr. Earle was elected at the last Congressional election one of the Represent- 
 atives in Congress, and on February 10, 1817, the governor executed a certificate 
 of his election, which Mr. Earle received in April or May following. 
 
 The question arose as to the discharge of the duties of postmaster after he was 
 a Member-elect of the House, but before he had taken his seat. 
 
 The committee reported this resolution, which, on March 21, was agreed to by 
 the House : 
 
 Resolved, That Elias Earle is entitled to a seat in this House. 
 
 499. The Ohio election case of Hammond v. Herrick in the Fifteenth 
 Congress. 
 
 After a careful consideration of the status of a Member-elect the 
 House decided that such an one was not affected by the constitutional 
 requirement that an oflB.cer of the United States shall not be a Member. 
 
 On January 5, 1818," the Committee on Elections made a report in the case of 
 C. Hammond's contest for the seat of Mr. Samuel Herrick, of Ohio. On the 19th 
 of December, 1810, Mr. Herrick had been appointed attorney of the United States 
 for the district of Ohio, which office he accepted and held until his resignation 
 thereof on the 29th of November, 1817. In October, 1816, he was elected one of 
 the Representatives of the State of Ohio for the Fifteenth Congress. The result 
 of the election was pubUcly announced on the 7th of January, 1817, in the presence 
 of the senate of that State. On the 15th of September, 1817, the governor executed 
 a certificate of Mr. Herrick's election, according to the law of Ohio, which was 
 received by him on or about the 30tli day of the same month. Mr. Herrick, there- 
 fore, continued in office almost nine months after the 4th of March and two months 
 after receiving the certificate of his election. Congress met December 1, 1817, and 
 Mr. Herrick took his seat on that day in the House of Representatives. 
 
 The Committee on Elections which examined the case consisted of Messrs. 
 John W. Taylor, of New York, John Tyler, of Virginia, Ezekiel Whitman, of Massa- 
 chusetts, Orsamus G. Merrill, of Vermont, Solomon Strong, of Massachusetts, 
 John L. Boss, jr., of Rhode Island, and Henry Shaw, of Massachusetts. Their 
 report, which seems to have been unanimous, examined very carefully whether or 
 not the sixth section of Article I of the Constitution ^ had been Aaolated. After 
 referring to the cases of John P. Van Ness ^ and Philip Barton Key ^ and certain 
 
 ' First session Fifteenth Congress, Contested Elections in Congress from 1789 to 1834, p. 314. 
 ^First session Fifteenth Congress, Journal, pp. 32, 103, 355, 359, 363; Annals, pp. 1435-1447; House 
 Report No. 30. 
 
 'See section 7 of this work. 
 
 * See section 486 of this volume. 
 
 *See section 442 of this volume.
 
 § 499 INCOMPATIBLE OFFICES. 625 
 
 English precedents the report proceeds to a very full consideration of the status 
 of a Member-elect of the House: 
 
 Persons elected to the House of Co mm ons become at one time members for certain purposes and 
 at another time for other purposes. Thus immediately upon executing the indenture of return by the 
 sheriff or other returning officer, the person elected becomes entitled to the privilege of franking, although 
 the day at which the Parliament is made returnable may not have arrived. Yet he is not a member 
 for he may thereafter be a candidate for election in another district at any time before the Parliament 
 is made returnable and the return actually filed in the Crown office. From the time last mentioned 
 he becomes a member so far that he can not be a candidate for another district, but yet he may there- 
 after hold an office incompatible with membership, and upon resigning his office he may immediately 
 qualifj- and take his seat in the House. It has often been decided by their committee of elections that 
 a person holding an office incompatible with membership is, nevertheless, capable of prosecuting his 
 claim to a fact. After examination of all the parliamentary registers, histories, and journals within 
 our reach we have found no case where a person elected to the House of Commons was brought in on a 
 call of the House before he had voluntarily appeared, qualified, and taken his seat, nor do we find any 
 instance of a person having been expelled untU after such time. 
 
 A very particular case occurred on the 10th of Februarj-, 1620. Sir John Leech having been 
 elected a member of the House of Commons, and appearing to take the oaths of supremacy and alle- 
 giance, was asked whether he had not already sat in the House that Parliament in violation of the statute. 
 He confessed that on the Wednesday morning previous he did sit in the House a quarter of an hour, 
 being unsworn. For this offense Sir John was not expelled, but it was resolved That he was disabled to 
 serve in the House, and a new writ of election was issued to supply the vacancy, in the same manner 
 as if no election and return had taken place. The same course of proceeding has been pursued when 
 a person duly elected and returned comes into the House and refuses to be sworn. Such was the case 
 of Mr. Archdale, in the year 1698, who, being elected and returned, came into the House of Commons 
 and said he was ready to serve if his affirmation of allegiance could be accepted instead of his oath. 
 The House resolved that it could not. Mr. Archdale. stiU declining to take the oath, was refused admit- 
 tance to a seat and a new writ was issued to supply his place. This case is more peculiar because a 
 person elected to the House of Commons can not relinquish his right to a seat either before or after quali- 
 fication otherwise than by accepting an incompatible office. But by refusing to be sworn he may do 
 that indirectly which he is not permitted to do directly. We have seen several similar cases which 
 occurred in the colonial assembly of New York, but not now having access to the journals we are unable 
 to report the particulars. 
 
 Persons elected and returned to the House of Commons may be chosen members of committees 
 before they appear and qualify. But it is allowed for a reason sunOar to that which, in courts of law, 
 permits a declaration to be filed de bene esse before the defendant appears in court. In both cases the 
 act is conditional; and it is ineffectual unless the condition of appearance be performed. 
 
 The practice of this House, which does not allow the appointment of persons to be members of 
 committees ' until they shall have been sworn and shall have taken their seats, is obviously more reason- 
 able and convenient than the other. It was decided as early as the first session of the Second Congress, 
 in the case of John F. Mercer, who was chosen to supply a vacancy in the representation of the State of 
 Mar>-land, occasioned by the resignation of WUliam Pinckney, that a Representative-elect might decline 
 his election before taking his seat and before the first session of the Congress to which he was elected. 
 We do not find that the question has since been agitated, although similar cases have often occurred. 
 Our rule in this particular is different from that of the House of Commons; it is also better, for it makes 
 our theory conform to what is fact in both countries, that the act of becoming in reality a Member of the 
 House depends wholly upon the will of the person elected and returned. Election of itself does not 
 constitute membership, although the period may have arrived at which the Congressional term com- 
 mences. This is evident from the consideration that aU the votes given at an election may not be 
 returned by a returning officer in season to be counted, whereby a person not elected may be returned 
 
 ' See, however, sections 4477-4483 of Volume IV of this work. Jefferson's Manual has by rule Ijeen 
 made authority in the House since 1837. In the Fifty-sixth Congress Mr. Joseph Wheeler, of Alabama, 
 a Member-elect, was not appointed to any committee. 
 
 5904— VOL 1—07 iO
 
 626 PRECEDENTS OF THE HOUSE OP REPRESENTATIVES. § 499 
 
 and take the seat of one who was duly elected. Neither does a return necessarily confer membership, 
 for if he in whose favor it be made should be prevented taking a seat at the organization of a House of 
 Representatives, he might find upon presenting himself to qualify that his return had been superseded 
 by the admission of another person into the seat for which he was returned. 
 
 At an election held in the State of Georgia in October, 1804, Thomas Spalding was duly chosen a 
 Representative to the Ninth Congress, but because the votes of three counties were not returned to the 
 governor within twenty days after the election, Cowles Mead received a certificate and took his seat. 
 Mr. Spalding afterwards presented his petition. The House vacated Mr. Mead's seat and admitted Mr. 
 Spalding.' 
 
 In AprU, 1814, Doctor WiUoughby was elected a Representative of the State of New York to the 
 Fourteenth Congress; but by reason of a clerical error of certain inspectors in returning certificates of 
 votes to the office of the county clerk. General Smith was declared duly elected, and a certificate of 
 election was accordingly delivered to him; but he, having omitted to take a seat at the commencement 
 of the session, was, on the ninth day thereafter, declared not entitled, and thereupon Doctor WiUoughby 
 was admitted in his seat.- 
 
 Several other cases might be cited where persons were returned who never in fact became Members, 
 and where others became Members who were not returned. Neither do election and return create 
 membership. These acts are nothing more than the designation of the individual, who, when called 
 upon, in the manner prescribed by law, shall be authorized to claim title to a seat. This designation, 
 however, does not confer a perfect right, for a person may be selected by the people destitute of certain 
 qualifications, without which he can not be admitted to a seat. He is, nevertheless, so far the Repre- 
 sentative of those who elected him that no vacancy can exist until his disqualification be adjudged by 
 the House. Yet it would be easy to state cases where he would not be permitted for a moment to occupy 
 a seat, notwithstanding the regularity of his election and return. To no practical purpose could he ever 
 have been a Member. So, also, Lf a person duly qualified be elected and returned and die before the 
 organization of the House of Representatives, we do not think lie could be said to have been a Member 
 of that body, which had no existence until after his death. We say which had no existence, for we 
 consider that concept altogether fanciful which represents one Congress succeeding to another as 
 members of the same corporation. It has no foundation either in fact or in the theory of our Government. 
 Each House of Representatives is a distinct legislative body, having no connection with any preceding 
 one. It commences its existence unrestrained by any rules or regulations for the conducting of business, 
 which were established by former Houses, and which were binding upon them.' It prescribes its own 
 course of proceeding, elects its officers, and designates their duties. Even joint rules for the government 
 of both Houses of Congress are not binding upon a new House of Representatives, unless expressly 
 established by it. Although the Fourteenth Congress had never assembled the Fifteenth would liave 
 met, under the Constitution, clothed with every legislative power, as amply as it was enjoyed by the 
 Thirteenth. The Constitution does not define the time for which Representatives shall be chosen. 
 It is satisfied provided the choice take place at any time in every second year. The rest is left to the 
 discretion of each State. Accordingly, in some States Representatives are usually chosen for one year 
 and seven months, and in other States for a longer time. 
 
 The privilege of exemption from arrest, granted by the Constitution to Representatives before a 
 meeting of the House, and after its adjournment, furnishes no argument in favor of their membership at 
 such times. Exemptions from arrest is a privilege as old as the Parliament of England. There it is 
 extended, not only to members, but to their servants, horses, and carriages. Our Constitution adopts 
 the very words of the common law, but restricts the privilege to Membera. In both countries the object 
 is the same, not the benefit of the Member, but of the public service. It is an essential incident to the 
 right of being represented, and a consequence of that right. But that membership is not coextensive 
 with the enjoyment of that privilege is manifest from the consideration that such a construction might 
 make the Members of one Congress continue in office, not only after the Congress had expired, but also 
 
 ' First session Ninth Congress, Journal, pp. 192, 205, 210-215 (Gales & Seaton ed.). 
 ^ First session Fourteenth Congress, Journal, pp. 28, 31, 45. 
 ^ See also sections 6743-6755 of Volume V of this work.
 
 § 499 INCOMPATIBLE OFFICES. 627 
 
 after the next Congress was actually in session.' This construction, therefore, is not only abmird, but it 
 serves to illustrate the fallacy of that suggestion which fancies the Representatives of one Congress 
 succeeding to the seats of their predecessors as members of the same corporate body. 
 
 The pri^dlege of franking letters, and of exemption from militia duty, are not granted by the 
 Constitution. They are established by law and liable to be changed at the will of the Government. 
 They have been extended and may be restricted, as public convenience shall require. Previous to the 
 last Congress the pri^'ilege of franking was not enjoyed until after the commencement of each session. 
 But as that does not prove negatively that persons elected to the House of Representatives were not 
 Members before that time, so the existing law does not prove affirmatively that they are. It is true that 
 the words "Members of the House of Representatives" are used as descriptive of the persons to whom 
 the privilege is granted, but they certainly were used without intending thereby to express an opinion, 
 much less to decide when membership commences, and probably without in any wise adverting to that 
 inquiry. 
 
 The conclusion of the committee was embodied in this resolution: 
 
 Resoherl, That Samuel Herrick is entitled to a seat in this House. 
 
 On March 19 this report, which had been conunitted to the Committee of the 
 Whole,' was considered. Mr. Richard C. Anderson, jr., of Kentucky, spoke at 
 length in opposition to the idea that a Member-elect was not a Member. He said 
 the provision of the Constitution that, "a majority of each House shall constitute a 
 quormn to do business, but a smaller nmnber may adjourn from day to day, and 
 may be authorized to compel the attendance of absent Members," must refer to the 
 first as well as to any subsequent session of Congress, and therefore was the plainest 
 evidence that a person elected might be a Member of the House before he had 
 appeared and taken his seat. Other sections of the Constitution, that giving Repre- 
 sentatives privilege from arrest while going to and returning from the sessions, that 
 prohibiting a Representative from being appointed an elector, and that fixing the 
 age of the Representative at at least 25 years were also evidence of the same thing. 
 If a Member-elect was not a Representative he might be an elector, and thus, in 
 certain contingencies, vote for President once as an elector and again a little later as 
 a Representative on the floor of the House, a situation evidently not contemplated 
 by the Constitution. Also if a Member-elect was not a Representative, a man under 
 25 years might be chosen provided he would become 25 by the time Congress should 
 meet. But a provision making the eligibility of a Representative depend upon the 
 time of year at which Congress might meet was an evident absurdity. 
 
 On March 20, on motion of ilr. Benjamin Adams, of Massachusetts, and by a 
 vote of 67 ayes to 66 noes, the Committee of the Whole inserted the word "not" in 
 the resolution, so it should read that Mr. Herrick was not entitled to the seat. 
 
 When this amendment was reported to the House, the House disagreed to it — 
 yeas 74, nays 77. The resolution declarmg Mr. Herrick entitled to the seat was then 
 adopted — yeas, 77, nays 70. 
 
 ' This probably refers to such a case as actually happened in 1869, when the Fortieth Congress 
 expired March 3, and the Forty-first convened the next day, March 4. A Member of the Fortieth, who 
 was not reelected to the Forty-first, might not reach his home until long after his successor had taken his 
 seat. 
 
 ' The Committee of the 'Wliole was not in those days limited so exclusively to the consideration of 
 subjects involving the expenditure of money.
 
 628 PRECEDENTS OF THE HOUSE OF REPEESENTATIVES. § 500 
 
 500. A Member-elect, who held a commission in the Army and had 
 not taken the oath or his seat in the House, having resigned, a question 
 arose as to when the compensation of his successor should begin. 
 
 Opinion of the Judiciary Committee that when a Member-elect re- 
 tains an incompatible oflice and does not qualify, a vacancy exists in his 
 seat. 
 
 An opinion that a Member-elect becomes a Member from the very 
 beginning of the term to which he has been elected. 
 
 As to what acts may constitute a declination of the office of Member 
 of the House. 
 
 Conclusions of law as to the time of beginning of compensation of a 
 Member elected to fill a vacancy. 
 
 On February 4, 1901,' Mr. George W. Ray, of New York, from the Judiciary 
 Committee, submitted a report on the following letter, which had been referred to 
 that committee, with instructions to examine into the facts and law relating thereto 
 and report conclusions : 
 
 Office Sergeant-at-Arms, House of Representatives, 
 
 Washington, D. C, January 5, 1901. 
 Sir; A question has arisen in regard to the payment of Hon. William Richardson, Member from the 
 Eighth district of Alabama, who was elected on August 6, 1900, to succeed Hon. Joseph Wheeler. As I 
 am informed, Mr. Wheeler has notified you, under date of August ]7, 1900, that he resigned, the resigna- 
 tion to take eSect August 6, 1900, while the governor of Alabama has certified to you that the resignation 
 of Mr. Wheeler, bearing date April 20, 1900, was received on April 23 at the executive department of 
 Alabama and unconditionally accepted on that date. Mr. Wheeler has not demanded or received pay 
 since March 4, 1899, the date of the beginning of the Fifty-sixth Congress. 
 
 The question which arises is as to the date at which the compensation of Mr. Richardson should 
 begin. 
 
 In view of the somewhat complicated legal question involved, I should like to have further advice 
 before making the payment. 
 
 Respectfully, Henry Casson, 
 
 Sergeant-at-Arms, House of Representatives. 
 Hon. David B. Henderson, 
 
 Speaker of the House of Representatives. 
 
 The committee ascertained and reported the following facts : 
 
 At the regular general election held in the State of Alabama in the year 1898 Hon. Joseph Wheeler 
 was duly elected Representative in the Fifty-sixth Congress from the Eighth district of Alaliama. His 
 credentials (or certificate of election) were duly filed with the Clerk of the House of Representatives 
 Februaiy 23, 1899. 
 
 At the time of his election Joseph Wheeler held the office of major-general, United States Volun- 
 teers, to which office he was commissioned May 5, 1898, to rank from May 4, 1898. He took the required 
 oath of office as such major-general May 6, 1898, and was honorably discharged as such April 12, 1899. 
 He drew his pay as such major-general during all of said time. April 12, 1899, the same day he was dis- 
 charged as major-general. United States Volunteers, he was commissioned brigadier-general, United 
 States Volunteers, to rank from .\.pril 12, 1899, and took the oath of office as such April 15, 1899. He held 
 this office and drew his pay from April 15, 1899, up to and including June 16, 1900, when he was com- 
 missioned brigadier-general. United States Army, to rank from June IG, 1900, and he took the oath of 
 office as such June 18, 1900, and continued in active service and drew his pay from June 18, 1900, up to 
 
 ' Second session Fifty-sixth Congress. House Report No. 265G. The letter was referred January 8, 
 1901; Journal, pp. 95, 96; Record, p. 707.
 
 S 500 INCOMPATIBLE OFFICES. 629 
 
 September 10, 1900, when he was placed upon the retired list of the Army, under the provisions of exist- 
 ing law, since which date be has drawn his pay as brigadier-general. United States Army, retired. 
 
 A communication to the Speaker of the House of Representatives from Joseph J. Johnston, governor 
 of the State of Alabama, under date November 16, 1900, says: 
 
 "I hereby certify that the resignation of Hon. Joseph Wheeler as a Member of the Fifty-sixth 
 Congress, bearing date April 20, 1900, was received by me on April 23, 1900, and unconditionally 
 accepted on that date.' 
 
 "Respectfully, Joseph F. Johnston, Governor." 
 
 A letter from Joseph Wheeler to the Speaker of the House of Representatives, bearing date August 
 
 17, 1900, says: 
 
 "I resigned my seat in Congress, and the resignation was accepted by the governor, to take effect on 
 August 6, 1900. My successor was elected on that date. 
 
 "Respectfully, Joseph Wheeleh." 
 
 General Wheeler drew no salary as Representative in the Fifty-sixth Congress and exercised none 
 of the functions of such office. 
 
 By virtue of existing law the Fifty-sixth Congress came into existence at 12 o'clock noon on the 4th 
 day of March, 1899. In other words, the Fifty-sixth Congress commenced at that time. 
 
 That Congress was not called in extra session, but the first session under the provisions of existing 
 law commenced at 12 o'clock noon on the 4th day of December, 1899. 
 
 Joseph Wheeler did not appear at that time or present himself at the bar of the House and take 
 the oath of office or offer so to do. He never has presented himself to take the oath of office. He never 
 exercised any of the functions of Representative or Representative-elect in the Fifty-sixth Congress. 
 
 On the 4th day of May, 1900, the governor of the State of Alabama, recognizing that a vacancy 
 existed or, as he states it , would exist in the office of Representative in Congress from the Eighth Alabama 
 district, called a special election to fill such vacancy (see call), and such election was held on the first 
 Monday in August (August 6, 1900) to fill such vacancy, and at such election William Richardson was 
 duly elected. He appeared and took the oath December 4, 1900, and is the sitting Member from that 
 district. 
 
 The report then reviews at length the various statutes relating to the pay of 
 Members, quoting them all and noting the changes made from time to time. Among 
 those quoted is section 51 of the Revised Statutes: 
 
 Whenever a vacancy occurs in either House of Congress, by death or otherwise, of any Member or 
 Delegate elected or appointed thereto after the commencement of the Congress to which he has been 
 elected or appointed, the person elected or appointed to fill it shall be compensated and paid from the 
 time that the compensation of his predecessor ceased. 
 
 After quoting section 6, Article I, of the Constitution' the report says in relation 
 thereto : 
 
 First, Representatives during the time for which elected can not be appointed to any civil office 
 under the authority of the United States which shall have been created or the emoluments whereof shall 
 have been increased during such time. They may be appointed to other civil offices. Then follows an 
 absolute constitutional prohibition upon Senators and Representatives in Congress. They are prohibited 
 from being a Member of either House if they hold any office, civil or military, under the United States. 
 The first provision prohibits them from being appointed to certain civil offices, whUe the second pro- 
 vision prohibits their being a Member of either House if they hold any other office under the United 
 States. By statute an officer of the Army on the active list is prohibited from holding any civil office.' 
 
 It follows that Joseph Wheeler could not be a Member of either House of Congress or hold any civil 
 office under the United States while he held a commission and was on the active list in the Army of the 
 
 'A letter from Governor Johnston to General Wheeler, dated April 23, 1900, says: "I accept the 
 resignation, to take effect on the day your successor is elected." Report, p. 3. 
 ^ See section 485 of this work. 
 ' Section 1222 of the Revised Statutes, quoted in full below.
 
 630 PEECEDENTS OF THE HOUSE OF EEPKESENTATIVES. § 500 
 
 United States. He held a commission in the Army of the United States continuously from the time of his 
 election in the fall of 1898 up to and including March 4, 1899, the day that the Fifty-sixth Congress came 
 into existence, and continuously on down to the time he was placed upon the retired list on the 10th day 
 of September, 1900, and was in active service. True, for three days at one time and for two days at 
 another, while waiting to take the oath of office, he drew no pay, but he held his commission and accepted 
 the army offices and took the oath. Section 1756, Revised Statutes, prohibited his drawing pay until 
 the oath was taken. 
 
 The two offices were incompatible at common law and he could not hold both. So under the 
 Constitution as always held.' 
 
 By holding the office in the Army the civil office is declined.^ 
 
 The report goes on to quote section 6, Article I, of the Constitution, which 
 provides that Representatives "shall receive a compensation for their services," 
 and the various statutes prohibiting the same person receiving the emoluments of 
 two offices,' including section 1222 of the Revised Statutes: 
 
 " No officer of the Army on the active list shall hold any civil office, whether by election or appoint- 
 ment, and every such officer who accepts or exercises the functions of a civil office shall thereby cease to 
 be an officer of the Army, and his commission shall be thereby vacated." 
 
 The effect of these statutes, taken together [says the report], on the question of compensation has 
 been passed upon by the Supreme Court of the United States in Badeau v. United States.'' 
 
 It is there held that a person on the retired list of the Army, and by expressed statute entitled to 
 pay as such, can not receive that pay while he holds a civil office and draws the pay or compensation of 
 that office if the duties required or that may be required are incompatible. 
 
 Accordingly held that Badeau, who was on the retired list and accepted a position in the diplo- 
 matic and consular service and drew his pay, was not entitled to pay as a retired officer whQe he held 
 such position. 
 
 Officers of the Army retired from active service are still in the military service of the United States.' 
 
 Their pay is expressly provided for by statute.* 
 
 It follows that Gen. Joseph Wheeler, from 12 o'clock noon March 4, 1899, the time when the Fifty- 
 sixth Congress commenced, was not entitled to pay and could not draw pay as Representative or Rep- 
 resentative-elect (so called), conceding for the sake of the argiunent that he had not declined the election, 
 for the reason that he held a commission in the Army on the active list and was discharging the duties 
 and drawing the pay of an army officer and most of the time was on the ocean or in active service in 
 the Philippines, over 8,000 miles from the capital of the United States. His pay as major-general was 
 $7,500 per year and as brigadier-general $5,500 per year. 
 
 Therefore Hon. William Richardson has had no predecessor, as to compensation, in the Fifty- 
 sixth Congress. 
 
 We have not overlooked the cases holding that the abo.ve-quoted sections relating to compensation 
 do not apply to persons holding two civil offices the duties of which are distinct but not incompatible, 
 the duties and compensation of each office being expressly fixed by law and appropriated for.' In 
 the Badeau case the court points out the distinction very clearly. 
 
 The report then propounds the question whether or not Hon. William Rich- 
 ardson had a predecessor in office de jure or de facto in the Fifty-sixth Congress. 
 
 ' Here are cited the cases of Van Ness, Yell, Vandever, Blair, and Wheeler. The reports also cites 
 law cases in point. 
 
 2 The Blair resolution is here quoted. (See section 492 of this work.) 
 
 3 Sections 1763-1765 of the Revised Statutes. 
 *See 130 U. S., pp. 439, 448, 450-452. 
 
 ' See United States v. Tyler, 105 U. S., 244. 
 
 « Sections 1275, 1276, Revised Statutes. 
 
 ' See 120 U. S., 126; 21 How., 463; 110 U. S., 688.
 
 § 500 INCOMPATIBLE OFFICES. 631 
 
 In response to this the committee finds that all Representatives elected ' become 
 "Members" from the very hour and minute of the commencement of the term for 
 which elected; that is, on the 4th of March next preceding the meeting of the Con- 
 gress. Therefore the Member-elect is the holder of an "office" as well as the Mem- 
 ber who has been sworn. 
 The report continues: 
 
 No person elected or appointed to an office becomes an officer from the mere fact of his election 
 or appointment. Acceptance is necessary. Seeking the office or consenting to be appointed or elected 
 does not constitute an acceptance.^ 
 
 General \Mieeler might have accepted the election to the Fifty-sixth Congress. He could have 
 accepted in more ways than one. He might have signed certificates for drawing his pay and have 
 drawn his pay. He might have exercised the fi-anking privilege. WTien Congress assembled, he might 
 have appeared, participated in the organization of the House by voting for Speaker, and then have 
 taken the oath of office, which act would have entitled him to take a seat in the House. He did none 
 of these things. 
 
 At the time of his election he held a commission as major-general in the Army of the United States 
 on the active list and was in the active service. When the 4th day of March, 1899, arrived, he continued 
 in the Army; continued to perform the duties of his army office; continued to draw his pay as an army 
 officer; in fact, he continued to exercise all the prerogatives and powers and to enjoy all the privileges 
 of an officer of the Army of the United States on the active list. 
 
 After referring to the fact that General Wheeler had been a Member of Congress 
 before, and presumably knew of the law forbidding an army officer holding a civil 
 office, the report continues : 
 
 The law as well as common sense placed and places an interpretation upon these acts. That 
 interpretation is that he declined to accept the election to the Fifty-sixth Congress. * * * If Wheeler 
 declined the civil office to which elected at the general election in 1898, he never filled the office, was 
 never in it, and it is immaterial whether he declined on or before March 4, 1899, or at the assembling 
 of Congress December 4, 1899. A declination of the office or of the election at any time before acceptance 
 left it vacant from the very beginning of the term. It is not conceivable that a person who declines 
 either an election or an appointment to a civil office the term whereof is 6xed and definite has ever filled 
 it for a single moment. 
 
 It follows that Joseph Wheeler never held the office of Representative in the Fifty-sixth Congress 
 or of Member of the House of Representatives in the Fifty-sixth Congress and that the office was always 
 vacant until the election of Hon. William Richardson, August 6, 1900. 
 
 Therefore the Hon. William Richardson never had a predecessor de jure or de facto in the Fifty- 
 sixth Congress. 
 
 The resignation of Hon. Joseph Wheeler as Representative amounted to nothing, as he did not 
 hold the office, and therefore could not resign it. He had declined it. 
 
 The report next goes on to show that section 51, of the Revised Statutes, which 
 provides for payment of the successor when a vacancy occurs after the commence- 
 ment of the Congress, does not apply to the case of Mr. Richardson, because no person 
 occupied the seat of Representative from the Eighth Alabama district in the Fifty- 
 sixth Congress, either de jure or de facto, or was entitled to the pay prior to Mr. 
 Richardson's election. Section 51 of the Revised Statutes had been passed upon 
 by the court, in the case where — 
 
 One Pirce held the certificate of election as Representative from the Second district of Rhode 
 Island in the Forty-ninth Congress. He was sworn in, performed his duties as Representative, and 
 drew his pay. The seat was contested, and the contestants claimed that Pirce was not elected to 
 
 ' The status of the Member-elect is discussed at length. 
 ' Mechem's Public Offices, sees. 247, 219.
 
 ■632 PRECEDENTS OF THE HOUSE OF EEPEESENTATIVES. § 501 
 
 the Forty-ninth Congress. The House finally decided that Pirce was not elected, and that the seat was 
 vacant. The vacancy existed from the very beginning of the Forty-ninth Congress, March 4, 1885, for 
 the reason that no person was elected from the Second district of Rhode Island to fill that seat. Feb- 
 ruary 21, 1887, Page was elected to fill such vacancy, and he claimed that under section 51, Revised 
 Statutes, he was entitled to pay from March 4, 1885, when the Forty-ninth Congress commenced. The 
 court held that section 51 did not apply, because Page in law had no predecessor in the Forty-ninth 
 Congress. As to pay he did have a predecessor, and that predecessor drew his pay so long as he 
 occupied the seat. The court held therefore that under a proper construction of section 51 Page had 
 a predecessor as to compensation within the meaning of section 51 and that therefore Page was entitled 
 to his pay only from the time that the compensation of Pirce ceased. The plain holding is that if Pirce 
 had never occupied the seat and drawn his pay section 51 would not have applied at all. 
 
 The following is the unanimous holding of the court in that case: 
 
 "The proper construction of section 51 is that the predecessor of the person elected to fill a vacancy 
 must be a person who was the predecessor in the same Congress. If no such person is to be found, because 
 no such person was duly elected, Page had no predecessor in the sense of section 51, and that section 
 does not apply to his case. But we think that, under the proper construction of section 51, Pirce was 
 the predecessor of Page as to compensation or salary. His credentials showed that he was regularly 
 elected; he must have been placed on the roll of Representatives-elect, under section 31 of the Revised 
 Statutes; he was sworn in, t(5ok his seat, voted, served on committees, and drew the salary and the 
 mileage. Under sections 38 and 39 he was entitled to his salary, because his credentials, in due form 
 of law, had been duly filed with the clerk, under section 31, and because he took the required oath. 
 Section 51 refers only to a vacancy occurring after the commencement of a particular Congress and in 
 the membership of that Congress, and the reference to a ' predecessoi- ' is plainly intended to apply only 
 to a predecessor in that Congress. If there was any such predecessor of Page, it was Pirce. If there was 
 no predecessor of Page in that Congress, section 51 does not apply to that case." 
 
 In the case of Hon. William Richardson, now under consideration, as we have already seen, no 
 person occupied the seat of Representative from the Eighth Alabama district in the Fifty-sixth Con- 
 gress, either de jure or de facto, or was entitled to the pay of such Representative prior to the election 
 of Hon. William Richardson, and therefore within the decision just quoted section 51 of the Revised 
 Statutes does not apply. 
 
 As section 51 has no application, we are relegated to the rules of the common law, and here there is 
 no dispute. A person elected to fill a vacancy, in the absence of any statute establishing a different 
 rule, is entitled to compensation only from the time of his election or appointment. It follows that 
 the Hon. William Richardson is entitled to pay from August 6, 1900, only, that being the date of his 
 election. 
 
 Your committee also, by a vote of 10 to 5, 1 member being absent and 1 not voting,' adopted the 
 following resolution, which is respectfully reported to the House, viz: 
 
 "Resolved, That Hon. William Richardson, Representative from the Eighth Congressional district 
 of the State of Alabama, is entitled to pay only from August 6, 1900, the date of his election to the Fifty- 
 sixth Congress." 
 
 This resolution was not acted on by the House, but the Speaker certified the 
 salary checks of Mr. Richardson in accordance with the findings of the committee. 
 
 501. A Member having informed the House of his acceptance of an 
 incompatible ofi&ce, the House has assumed or declared the seat vacant. — 
 On December 6, 1792,~ the Speaker laid before the House a letter from Joshua Seney, 
 
 'Messrs. William H. Fleming, of Georgia, Richard W. Parker, of New Jersey, and D. H. Smith, of 
 Kentucky, while supporting the conclusions filed individual views. Mr. John J. Jenkins, of Wisconsin, 
 filed views in support of the opinion that Mr. Richardson's salary began at the date of Mr. Wheeler's 
 resignation, April 20, 1900. Messrs. Charles E. Littlefield, of Maine, and Julius Kahn, of California, 
 taking issue with the conclusions of the report as to the status of the Member-elect, held that Mr. Rich- 
 ardson's pay should begin December 4, 1900, the date when they held that Mr. Wheeler's right to com- 
 pensation ceased. 
 
 ^Second session Second Congress, Journal, p. 635 (Gales & Seaton ed.); Annals, p. 738.
 
 § 502 INCOMPATIBLE OFFICES. 633 
 
 one of the Members for the State of Maryland, stating his acceptance of an appoint- 
 ment in the judiciary- department of the said State, which disquahfied him for a 
 seat in the House. The letter was read and ordered to lie on the table. 
 
 Januarj" 23, 1793,' the Speaker laid before the House a letter from the governor 
 of Maryland with the return of WilHam Hindman, "in room of Joshua Seney, who 
 has resigned," as the Journal expresses it. 
 
 502. On February 27, 1804,^ the Speaker laid before the House a letter ad- 
 dressed to him from John Smith, of New York, stating that "having been elected 
 by the legislature of the State of New York a Senator of the United States, he had 
 accepted the appointment and taken his seat in the Senate." 
 
 On motion — 
 
 Resolved, That John Smith, one of the Representatives from the State of New York, having accepted 
 the appointment of Senator from that State, in the Senate of the United States, has thereby vacated his 
 Beat in this House; and that the Speaker be requested to notify the executive of the said State of New 
 York accordingly. 
 
 503. Instance wherein a Senator-elect continued to act as governor of 
 a State after the assembling' of the Congress to which he had been 
 elected. — On Januaiy 4, 190(;,^ during the first regular session of the Fifty-eighth 
 Congress in the Senate Mr. John C. Spooner, of Wisconsin, said: 
 
 Mr. President, I present the credentials of Hon. Robert M. La FoUette, Senator-elect from the 
 State of Wisconsin, which I ask may be read and placed on file. 
 
 The Vice-President said : 
 
 The Secretary will read the credentials. 
 
 The credentials of Robert Marion La Follette, chosen by the legislature of the 
 State of Wisconsin a Senator from that State for the term beginning March 4, 1905, 
 were read and ordered to be filed. 
 
 Mr. Spooner then said: 
 
 Mr. La Follette, the Senator-elect, is in attendance, and I ask that the oath of office be now admin- 
 istered to him. 
 
 The Vice-President said : 
 
 The Senator-elect will present himself at the Vice-President's desk and take the oath of office 
 prescribed by law. 
 
 Mr. La Follette was escorted to the Vice-President's desk by Mr. Spooner, and 
 the oath prescribed by law having been administered to him, he took his seat in the 
 Senate.* 
 
 ' Journal, p. 677. 
 
 - First session Eighth Congress, Journal, pp. 602, 603 (Gales & Seaton ed). 
 
 'First session Fifty-ninth Congress, Record, p. 674. 
 
 *The Senate had met in special session on March 4, 1905, but Mr. La Follette, who was governor 
 of Wisconsin, did not appear either then or at the assembling of Congress at the first regular session, oa 
 December 4. 1905. On January 1 he resigned as governor of Wisconsin.
 
 634 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 504 
 
 504. A resolution declaring vacant the seat of a Member who has 
 accepted an incompatible office may be agreed to by a majority vote. — On 
 
 January 20, 1863/ the House agreed to the following resolution: 
 
 Resolved, That William Vandever has not been entitled to a seat as a Member of this House since 
 he was mustered into the military service of the United States as colonel of the Ninth Regiment Iowa 
 Volunteer Infantry, to wit, since the 24th day of September, A. D. 1861. 
 
 Mr. Horace Maynard, of Tennessee, made the point of order that, as a majority 
 only had voted in favor of the resolution, it was not adopted, since the resolution in 
 effect brought about the expulsion of a Member, which under the Constitution 
 required the concurrence of two-thirds of the Members. 
 
 The Speaker' overruled the point of order. 
 
 Mr. Maynard having appealed, the appeal was debated on this and the succeed- 
 ing day, the ground being taken in support of the ruling that Mr. Vandever, by 
 accepting an incompatible office, had in effect vacated liis seat. 
 
 On January 21 the decision of the Chair was sustained — ^yeas 82, nays 36 — the 
 appeal being laid on the table. 
 
 505. The South Carolina election case of Bowen v. De Large in the 
 Forty-second Congress. 
 
 The House has manifestly leaned to the idea that a contestant holding 
 an incompatible office need not make his election until the House has 
 declared him entitled to the seat. 
 
 It being impossible to determine who is elected, the House declares the 
 seat vacant. 
 
 In a case where sitting Member's counsel had surreptitiously sup- 
 pressed his evidence, the taking of further testimony was permitted. 
 
 On January 18, 1873,^ Mr. George F. Hoar, of Massachusetts, from the Com- 
 mittee on Elections, submitted a report in the South Carolina case of Bowen v. 
 De Large: 
 
 The committee find, upon the whole evidence, that said De Large did not receive a majority of 
 the votes legally cast at the election in said district, and is not entitled to a seat. 
 
 This case came on to be heard before the committee at the December session of 1871-72. Mr. 
 De Large then applied for a postponement, and for leave to take further testimony, on the ground that 
 the counsel employed by him to prepare his cause and take testimony in his behalf had possession of the 
 evidence, and refused to surrender the same to be used before the committee, and, further, that said 
 counsel had been tampered with and bribed by said Bowen to act for him. The committee found 
 both these allegations to be proved. Some of the committee are of opinion that this proceeding, 
 which would furnish ground for the expulsion of the contestant, if he were a Member, would justify a 
 refusal to permit liim to proceed with the contest, or to award him the seat. 
 
 The report goes on to say that the sitting Member was allowed to take further 
 testimony, from which a state of fraud and irregularity was shown that made it 
 impossible to determine who was elected. 
 
 It further appeared that on a day after the day when contestant claimed to 
 have been elected to the House he was chosen a member of the South Carolina 
 
 I Third session Thirty-seventh Congress, Journal, pp. 212, 213, 215; Globe, pp. 405-107, 427. 
 
 -Galusha A. Grow, of Pennsylvania, Speaker. 
 
 'Third session Forty-second Congress, House Report No. 37; Smith, p. 99.
 
 § 506 INCOMPATIBLE OFFICES. 635 
 
 house of representatives for two j^ears, and on November 1, 1872, took his seat and 
 the oath therein. 
 
 The committee also say: 
 
 It further appeared that in the fall of 1872 said Bowen was elected sheriff of Charleston, S. C, for 
 the term of four years, and on the 19th of November, 1872, took the oath of office and entered upon the 
 duties of the same, which office he now holds. These offices are, in their nature, incompatible with the 
 office of Member of this House, and are expressly declared to be so by the constitution of South Carolina. 
 
 Some of the committee are of opinion that the acceptance of these offices by Mr. Bowen disqualifies 
 him from the further prosecution of a claim to a seat in this House, and from taking a seat therein, if 
 he shall be found to have been duly elected. 
 
 The committee are unanimous in finding all the facts herein reported. 
 
 They are not unanimous in holding that each one of the reasons aforesaid is sufficient of itself to 
 disqualify the contestant. 
 
 But they are unanimously of opinion, on the whole case, that Mr. Bowen is not entitled to the seat. 
 
 Therefore the committee recommended resolutions declaring that neither the 
 contestant nor the sitting Member was entitled to the seat. 
 
 The report was considered in the House on January 24, 1873.' The contestant, 
 Mr. Bowen, urged in argument that the acceptance of incompatible offices should 
 not bar him out since the doors of the House were not open to him. When it 
 should be decided that he was entitled to admission to the House he might then 
 resign his State offices and elect the seat in the House. He cited the cases of Her- 
 rick, Mumford, Blair and Schenck. This argument impressed the House with its 
 strength, and Mr. Hoar expressly stated that the committee relied entirely on the 
 fact that an investigation of the election on its merits rendered it impossible to 
 determine who was elected. It is evident that the House also preferred to decide 
 the case on that basis, rather than on the basis of qualffications. 
 
 The resolutions were adopted without division, and so the seat was declared 
 vacant. 
 
 506. In 1815 the House questioned the constitutional right of a 
 Member to accept an appointment as commissioner, the office being 
 created under the terms of a treaty during the period of his membership. — 
 On December 11, 1815,- Mr. Peter B. Porter, of New York, appeared and took his 
 seat in the House. He had not been a Member of the preceding Congress. 
 
 On January 2.3, 1816,^ the Speaker laid before the House a letter from Mr. 
 Porter, stating that he had transmitted his resignation as a Member to the executive 
 of New York. 
 
 On February 9, 1816,* Mr. John Randolph, of Virginia, afford this resolution: 
 
 Resolved, That a committee be appointed to inquire whether the appointment to and acceeptance 
 by the Hon. Peter B. Porter, late a Member of this House from the State of New York, of the office of 
 commissioner under the late treaty of Ghent is in contravention of the Constitution of the United States. 
 
 Considerable debate arose over the resolution. Mr. John Forsyth, of Georgia, 
 urged that Mr. Porter had been elected for the term beginning March 4, 1815, and 
 terminating March 4, 1817. The office which he accepted had existed, if it existed 
 at all, from the day of the exchange of the ratifications of the treaty of peace — 
 
 'Journal, p. 238; Globe, pp. 842-847. 'Journal, p. 212. 
 
 ^ First session Fourteenth Congress, Journal, p. 32. ■'Journal, p. 303; Annals, pp. 940-94S.
 
 636 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 506 
 
 February 18, 1815. It was not pretended that commissioners for any purpose of 
 foreign intercourse as regulated by treaty might not be created by the President and 
 Senate. The sanction of the House was required only to make an appropriation to 
 pay them for their services. If their services were to be compensated by any act 
 that Mr. Porter had assisted in passing, there would be some evidence of a violation 
 of the Constitution, but no such fact existed. Mr. Robert Wright, of Maryland, said 
 that the provision of the Constitution* was intended to guard against the creation 
 of office and the increase of emoluments by Members of Congress for the benefit of 
 themselves. The office in question was not the kind contemplated by the Constitu- 
 tion. It was a ministerial, not a civil, office, made necessary by the treaty, but of 
 which the obligation of the President to appoint was imposed by the Constitution. 
 
 On the other hand, Mr. Randolph urged that the House should be very jealous 
 of any invasion of these guaranties of the Constitution, and appealed to the older 
 Members, especially Mr. Richard Stanford, of North Carolina, the "father of the 
 House," who responded by urging the Members "to avoid the crumbs of office 
 from the Executive, and to look to the people only, to whom they owed their 
 appointments, as the source of honor." 
 
 Mr. Randolph's resolution was then agreed to, yeas 70, nays 55, and Messrs. 
 Randolph, Thomas P. Grosvenor, of New York, Forsyth, John G. Jackson, of 
 Vriginia, and John B. Yates, of New York, were appointed the committee. They 
 made no report.^ 
 
 ' Section 6 of Article I, which provides: "No Senator or Representative shall, during the time for 
 which he was elected, be appointed to any civil office under the authority of the United States, which 
 shall have been created, or the emoluments whereof shall have been increased during such time; and 
 no person holding any office under the United States, shall be a Member of either House dming his 
 continuance in office." 
 
 ^ See also opinion of the Comptroller of the Treasury as to the payment of salary to Matt. W. 
 Ransom, as minister to Mexico, the emoluments of the office having been increased while he was a 
 Senator of the United States from North Carolina, and the appointment and confirmation by the Senate 
 and the signing and sealing of his commission having taken place before the expiration of his term as 
 Senator. (Vol. II, Decisions of Comptroller, p. 129.)
 
 Chapter XVII* 
 TIMES, PLACES, AND MANNER OF ELECTION. 
 
 1. Provisions of Constitution and statutes. Sections 507-616.' 
 
 2. Power of State executive to call elections to fill vacancies. Sections 617, 618.' 
 
 3. Time fixed by schedules of new State constitutions. Sections 519, 630.' 
 
 4. Disputes as to legal day of election. Sections 621-625. 
 
 5. Failure of Territorial legislature to prescribe manner, etc. Sections 526, 627. 
 
 507. The times, places, and manner of elections of Representatives 
 are prescribed by the State legislatures, but Congress may make or alter 
 such regulations. 
 
 Reference to discussions of the constitutional provision as to fixing 
 the time, etc., of elections. 
 
 Section 4 of Article I of the Constitution provides : 
 
 Section 4. Thc' 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 chusing Senators.' 
 
 * See Volume VI, Chapter CLIX. 
 
 ' Election must be by the people and not by lot. Section 775 of this volume. 
 
 ^ Discussion of the functions of the State executive. Section 312 of this volume. 
 
 ' Relative powers of State constitutional conventions and legislatures in fixing times, places, ajid 
 manner. Sections 363, 367, 388 of this volume; sections 846, 856, 1133 of Volume II. 
 
 Is the establishing of districts a prescribing of "manner?" Sections 310, 311 of this volume. 
 
 Respective powers of Congress and the States discussed. Section 313 of this volume. 
 
 Argument that State laws are, as to Congressional elections, really Federal laws. Section 1105 of 
 Volume II. 
 
 Federal statutes in relation to State laws. Section 961 of Volume II. 
 
 The Federal Constitution the source of the States' power. Sections 947, 959 of Volume II. 
 
 May the State legislature delegate the power of prescribing the "manner?" Section 975 of 
 Volume II. 
 
 ' The history and intent of this clause of the Constitution have been discussed elaborately in House 
 and Senate in connection with legislation. Thus in the Fifty-first Congress, in connection with a bill 
 (H. R. 11046) relating to Federal regulations for elections, Mr. Henry Cabot Lodge, of Massachusetts, from 
 the Committee on the Election of President, Vice-President, and Representatives in Congress, submitted 
 a report (House Report No. 2493, first session Fifty-first Congress) discussing the meaning of the clause. 
 Mr. C. R. Buckalew, of Pennsylvania, submitted minority views in connection with this report. In 
 reference especially to a limited construction of the clause the minority views submitted by Mr. Henry 
 St. George Tucker, of Virginia, from the same committee, in connection with the bill [H. R. 7712] discussed 
 the subject very elaborately. (House Report No. 1882, first session Fifty-first Congress.) In 1893, in 
 the Fifty-third Congress, the clause was again examined fully in connection with the biU (H. R. 2331) to 
 repeal certain portions of the Federal election laws. Mr. Tucker in this case submitted the report, and 
 Mr. Martin N. Johnson, of North Dakota, submitted the minority views. (Report No. 18, first session 
 
 637
 
 638 
 
 PRECEDENTS OF THE HOUSE OF EEPKESENTATIVES. 
 
 § 508 
 
 508. A Federal law fixes the Tuesday next after the first Monday of 
 November of every second (even numbered) year for election of Mem- 
 bers and Delegates. 
 
 Certain States, by special exception, elect their Members on a day 
 other than the day fixed generally by Federal statute. 
 
 Section 25 of the Revised Statutes, embodying the laws of February 8, 1872, 
 
 and March 3, 1875, provides: 
 
 The Tuesday next after the first Monday in November, in the year 1876, is established as the day, 
 in each of the States and Territories of the United States, for the election of Representatives and Dele- 
 gates to the Forty-fifth Congress; and the Tuesday next after the first Monday of Kovember, in every 
 second year thereafter, is established as the day for the election, in each of said States and Territories, 
 of Representatives and Delegates to the Congress commencing on the fourth day of March next thereafter. 
 
 By the act of March 3, 1875,* the above provision was modified — 
 
 so as not to apply to any State that has not yet changed its day of election and whose constitution must 
 be amended in order to effect a change in the day of the election of State officers in said State. - 
 
 509. Territorial laws fix the times, places, and manner of election of 
 Delegates. — Section 1863 of the Revised Statutes provides: 
 
 The first election of a Delegate in any Territory for which a temporary government is hereafter 
 provided by Congress shall be held at the time and places and in the manner the governor of such 
 Territory may direct, after at least sixty days' notice, to be given by proclamation; but at all sub- 
 sequent elections therein, as well as at all elections for a Delegate in organized Territories, such time, 
 places, and manner of holding the election shall be prescribed by the law of each Territory. 
 
 510. A Federal law provides that votes for Representatives to be valid 
 must be by written or printed ballot or by voting machine indorsed by 
 State law. — Section 27 of the Revised Statutes, dating from February 28, 1871, 
 and May 30, 1872, provides: 
 
 All votes for Representatives in Congress must be by written or printed ballot, and all votes received 
 or recorded contrary to this section shall be of no effect. But this section shall not apply to any State 
 voting otherwise whose election for Representatives occurs previous to the regular meeting of its legis- 
 lature next after the twenty-eighth day of February, 1871. 
 
 Fifty-third Congress.) The Senate report at the next session merely quoted the House report. (Senate 
 Report No. 113, second session Fifty-third Congress.) 
 
 In the Forty-fifth Congress an ambiguity in Colorado law as to the date of the election led to the 
 contest of Patterson and Belford. In order to remove all further doubt Congress passed a law, approved 
 June 11, 1878, "designating the times for the election of Representatives to the Forty-sixth and succeed- 
 ing Congresses from the State of Colorado." (20 Stat. L., p. 112, second session Forty-fifth Congress, 
 Record, pp. 4082, 4083.) 
 
 Also in the same Congress an act (approved June 19, 1878) (2 Stat. L., p. 174) was passed to regulate 
 the election in North Carolina in the coming Congressional elections, specifying that an election con- 
 ducted by the sheriffs or other duly appointed persons in accordance with certain specified North Carolina 
 laws should be legal. See history of bill, H. R. 4931, second session Forty-fifth Congress, for further 
 explanation. 
 
 In 1879, in connection with proposed legislation to repeal the Federal election laws, the subject 
 was discussed. See Record, first session Forty-sixth Congress, p. 513 (Senator Teller's speech); also 
 President Hayes's veto message (first session Forty-sixth Congress, Record, p. 1710). 
 
 The Supreme Court has also considered this clause. See, for instances, ex parte Siebold, 100 U. S., 
 371; ex parte Clarke, 100 V. S., 399; ex parte Yarbrough, 110 U. S., 651; in re Coy, 127 U. S., 731. 
 '18 Stat. L., p. 400. 
 2 The States of Maine, Vermont, and Oregon elect under the law providing the exceptions.
 
 §511 
 
 TIMES, PLACES, AND MANNER OF ELECTION. 
 
 639 
 
 On FebruaxY 14, 1899,' the above section was amended to read as follows: 
 
 All votes for Representatives in Congress must be by written or printed baUot or voting machine, 
 the use of which has been duly authorized by the State law; and all votes received or recorded con- 
 trary to this section shall be of no effect.^ 
 
 511. A Federal statute provides that all citizens of the United States 
 qualified to vote shall be allowed to do so without distinction of race, etc. — 
 Section 2004 of the Revised Statutes, which dates from May 31, 1870, provides: 
 
 All citizens of the United States who are otherwise qualified by law to vote at any election by 
 the people in any State, Territorj', district, county, city, parish, township, school district, munici- 
 pality, or other territorial subdi\-ision, shall be entitled and allowed to vote at all such elections, with- 
 out distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, 
 or r^ulation of any State or Territory, or by or under its authority, to the contrary notwithstanding.' 
 
 512. No officer of the Army or Navy shall prescribe qualifications of 
 voters or interfere with the suffrage. — Section 2003 of the Revised Statutes 
 provides : 
 
 No oflBcer of the Army or Navy of the United States shall prescribe or fix, or attempt to prescribe 
 or fix, by proclamation, order, or otherwise, the qualifications of voters in any State, or in any manner 
 interfere with the freedom of any election in any State or with the exercise of the free right of sufirage 
 in any Stated 
 
 Section 5530 of the Revised Statutes, dating from February 25, 1865, provides: 
 
 Every officer of the Army or Navy who prescribes or fijxes, or attempts to prescribe or fix, whether 
 by proclamation, order, or otherwise, the qualifications of voters at any election in any State shall be 
 punished as provided in the preceding section [section 5529].* 
 
 513. A Federal law provides a penalty against armed interference of 
 Federal troops at an election. — Section 55ii8 of the Revised Statutes, dating 
 from February 25, 1865, provides: 
 
 Every officer of the Army or Navy, or other person in the civil, militarj-, or naval service of the 
 United States, who orders, brings, keeps, or has under his authority or control, any troops or armed men 
 at any place where a general or special election is held in any State, unless such force be necessarj- to 
 repel armed enemies of the United States or to keep the peace at the polls, shall be fined not more than 
 five thousand dollars and suffer imprisonment at hard labor not less than three months nor more than 
 five years. 
 
 '30 Stat, L., p. 836. 
 
 ^ The Reposed Statutes, sections 14 to 17, inclusive, pro\-ide for the times and manner of election 
 of Senators. 
 
 'The following decisions relate to the above: 2 Abb. U. S., 120; McKay r. Campbell, 1 Saw., 
 374; U. S. V. Reese et al., 92 U. S., 214; U. S. v. Cruikshank et al., 92 U. S., 542. 
 
 The above section was originally the first section of the act of May 30, 1870, "to enforce the rights 
 of citizens of the United States to vote in the several States of this Union, and for other purposes." 
 (16 Stat. L., p. 140.) This section simply declared a right, without providing for its enforcement. 
 Other sections of the act pro\'ided penalties for the denial of the right. The decisions of the court 
 impaired somewhat the efficiency of the act, and in the Fifty-third Congress the sections of the statutes 
 containing the efficient pro\'isions of the act were repealed. (28 Stat. L., pp. 36, 37.) The declaratory 
 section was permitted to remain, however. 
 
 * This law dates from February 25, 1865. 
 
 ' See section 514 of this chapter.
 
 640 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 514 
 
 514. A penalty is provided against interference by military or naval 
 force in the exercise of the right of suffrage and conduct of elections. — 
 
 Section 5529 of the Revised Statutes, dating from February 25, 1865, provides: 
 
 Every officer or other person in the military or naval service who, by force, threat, intimidation, 
 order, advice, or otherwise, prevents, or attempts to prevent, any qualified voter of any State from freely 
 exercising the right of suffrage at any general or special election in such State shall be fined not more 
 than five thousand dollars and imprisoned at hard labor not more than five years.' 
 
 Section 5531 of the Revised Statutes, dating from February 25, 1865, provides: 
 
 Every officer or other person in the military or naval service who, by force, threat, intimidation, 
 order, or otherwise, compels, or attempts to compel, any officer holding an election in any State to receive 
 a vote from a person not legally qualified to vote, or who imposes, or attempts to impose, any regulations 
 for conducting any general or special election in a State different from those prescribed by law, or who 
 interferes in any manner with any officer of an election in the discharge of his duty shall be punished 
 as provided in section 5529 [of the Revised Statutes]. 
 
 515. The executive of a State issues writs of election to fill vacancies 
 in its representation in the House. — Section 2 of article 1 of the Constitution, 
 provides: 
 
 When vacancies happen in the representation from any State, the executive authority thereof shall 
 issue writs of election to fill such vacancies. 
 
 516. A Federal law empowers the States and Territories to provide by 
 law the times of elections to fill vacancies in the House. — Section 26 of the 
 Revised Statutes, dating from February 2, 1872, provides: 
 
 The time for holding elections in any State, District, or Territory for a Representative or Delegate 
 to Ml a vacancy, whether such vacancy is caused by a failure to elect at the time prescribed by law, or 
 by the death, resignation, or incapacity of a person elected, may be prescribed by the laws of the several 
 States and Territories respectively. 
 
 517. The Pennsylvania election case of John Hoge, in the Eighth 
 Congress. 
 
 An election to fill a vacancy, called by the governor in pursuance of 
 constitutional authority, was held valid although no State law prescribed 
 time, place, or manner of such election. 
 
 In 1804,^ the House considered a petition alleging the undue election and return 
 of Mr. John Hoge, of Pennsylvania, who claimed a seat as successor of William 
 Hoge, resigned. On December 19, 1804, the Committee on Elections, in their 
 report in favor of John Hoge, found the following state of facts: 
 
 That William Hoge, Member of the House of Representatives for the Eighth Congress, having, by 
 letter to the governor of the State of Pennsylvania, dated the 15th of October, resigned his seat in Con- 
 gress, the governor, in pursuance of the provisions made in the second section of the first article of the 
 Constitution of the United States, issued a writ of election to supply the vacancy which had thus taken 
 place. That the said writ was issued on the 22d day of October, and the election directed to be held on 
 
 ' Sections 5507 to 5510 of the Revised Statutes, inclusive, provide penalties for punishment of persons 
 who, individually or in conspiracy, influence or prevent by bribery or intimidation the exercise of the 
 right of suffrage by those to whom it is guaranteed by the fifteenth amendment. 
 
 Sections 5516 to 5519 (the Hains case (106 U. S., 629) involves the constitutionality of section 5519), 
 inclusive, provide penalties for obstructing the enforcement of the Civil Rights Law, and for denying to 
 persons offices or privileges thereunder. 
 
 ^ Second session Eighth Congress, Contested Elections in Congress, from 1789 to 1834, p. 135. 
 
 
 k
 
 § 518 TIMES, PLACES, AND MANNER OF ELECTION. 641 
 
 the 2d day of November, eleven days after the date of the said writ; that the writ was brought by the 
 mail to the prothonotary's office in Washington County on the 30th of October, but not proclaimed by the 
 sheriff till the 31st. 
 
 It appears to the committee that, though, by the second section of the first article of the Constitu- 
 tion of the United States, it is made the duty of the executive authority of the respective States to issue 
 writs of election to fiU vacancies, yet, by the fourth section of the said article, it is made the duty of the 
 legislature of each State to prescribe the times, places, and manner of holding such elections. It appears, 
 however, that several elections to supply vacancies in Congress have been held heretofore in Pennsyl- 
 vania; yet, on examining the laws of that State, it appears that no law exists prescribing the times, 
 places, and manner of holding elections to supply such vacancies as may happen in the representation 
 in Congress; and, consequently, if the election of John Hoge is, on this account, set aside, no election 
 can be held to supply the vacancy until the legislature of the State enact a law for that purpose. 
 
 The committee go on to show that the Pennsylvania law for general election 
 of Representatives to Congress required a notice of thirty days. In this special 
 election the governor directed the election to be held on the same day on wliich the 
 electors of President and Vice-President were to be chosen. And although it so 
 happened that the notice was in effect but two days, the committee found no evi- 
 dence of abuse in the maimer of conducting the election. Therefore they reported 
 the opinion that John Hoge was entitled to a seat in the House. 
 
 On December 19, after full debate, the recommendation of the committee was 
 concurred in, by a vote of 69 yeas to 38 nays, and John Hoge was admitted to his 
 seat. 
 
 518. The Mississippi election cases of Gholson, Claiborne, Prentiss, 
 and Word in the Twenty-fifth Congress. 
 
 Discussion of power of a State executive to call an election to fill a 
 vacancy, although the State law did not provide for the contingency. 
 
 Examination of the term " vacancy " as used in the Federal Con- 
 stitution to empower a State executive to issue writs for an election. 
 
 An instance wherein a State law prescribed a day of election which 
 arrived after the beginning of the term of the Congress affected. 
 
 The House declined to give prima facie effect to credentials regular in 
 form but relating to seats already occupied. 
 
 The House gave prima facie effect to credentials, although there ap- 
 peared a question as to the regularity of the writs of the election. 
 
 In a case wherein a contestant appeared after a determination of final 
 right to a seat by the House the sitting Member was unseated and a 
 vacancy declared. 
 
 There being rival claimants to a seat, elected on days different but 
 each constitutionally fi:xed, the House declared the seat vacant. 
 
 On September 25, 1837,^ the Committee on Elections reported in the case of 
 Messrs. Gholson and Claiborne, of Mississippi. 
 
 The law of Mississippi provided that Representatives in Congress should be 
 elected once in every two years, to be computed from the first Monday in November, 
 1833. And, acting in pursuance of this law, the people of Mississippi would, on the 
 first Monday of November, 1837, elect Representatives for the Congress actually 
 
 ' First session Twenty-fifth Congress, 1st Bartlett, p. 9; Globe, pp. 95, 97; Journal, p. 142. 
 5994— VOL 1—07 41
 
 642 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 518 
 
 begiiming March 4, 1837, but not to assemble, in the ordinary course, until December, 
 1837. 
 
 But the President, by proclamation of May 15, 1837, called an extra session of the 
 Twenty-fifth Congress, to meet September 4, 1837. Thus it happened that Missis- 
 sippi had no Representatives, the terms of the Representatives in the Twenty-fourth 
 Congress having expired March 4, 1837. 
 
 The governor of Mississippi — there being no State law providing for such a con- 
 tingency — issued his proclamation under the clause of the Constitution of the United 
 States: 
 
 When vacancies happen in the representation from any State, the executive authority thereof shall 
 issue writs of election to fill such vacancies. 
 
 The governor accordingly issued his writ calling an election for the third Monday 
 in July "for two Representatives to Congress, to fill said vacancy, imtil superseded 
 by the Members to be elected at the next regular election on the first Monday and day 
 following in November next." 
 
 When the House organized, Messrs. Samuel J. Gholson and John F. H. Claiborne 
 appeared with credentials showing their election at the election called in pursuance 
 of the governor's writ. 
 
 Objection to their taking their seats was overruled, and the question was referred 
 to the Committee on Elections. 
 
 Two objections were urged before the committee. In the first place, the point 
 was raised in relation to the power of the governor to restrict the terms of those 
 elected to the time of the next regular election. The committee, with one Member 
 only dissenting, held that the writ of election might not make such restriction, and 
 that the two Members were elected for the whole term of the Congress. They did 
 not conceive, moreover, that the election was invalidated by the illegal clause in 
 the writ. 
 
 The second objection occasioned considerable controversy, involAring the mean- 
 ing of the word "vacancy " as used by the Constitution in this connection. The com- 
 mittee were divided, a majority holding that in this case a vacancy existed as much 
 as if it had been occasioned by death or resignation. The committee were of the 
 opinion that the Constitution authorized the executive power of the States, respec- 
 tively, to order the filling of all vacancies which have actually happened, whether by 
 death, resignation, or expiration of the terms of Members previous to the election of 
 their successors. The word "happen " made use of in the Constitution, was not neces- 
 sarily confined to fortuitous or unforeseen events, but was equally applicable to all 
 events which by any means occur or come to pass, whether foreseen or not; and as in 
 this case confessedly the vacancy existed, it might properly be said to have happened, 
 although the means or circumstances by which it was brought about may have been 
 foreseen. 
 
 Therefore the committee reported the following resolution, which, on October 3, 
 was agreed to by the House — yeas 118, nays 101 : 
 
 Resolved, That Samuel J. Gholson and John F. H. Claiborne are duly elected Members of the 
 Twenty-fifth Congress, and, as such, are entitled to their seats.
 
 & 518 TIMES, PLACES, AND MANNER OF ELECTION. 643 
 
 On the first Monday of November — the time for the regular election — Messrs. 
 Gholson and Claiborne announced that they were not candidates, considering that 
 their reelection was not necessary, in view of the decision of the House. Neverthe- 
 less, there was an election for Congress, Messrs. S. S. Prentiss and Thomas J. Word 
 contesting. Votes were cast for Messrs. Gholson and Claiborne, however, although 
 they were not candidates. Messrs. Prentiss and Word received large majorities over 
 Messrs. Gholson and Claiborne ; but the general state of the poll indicated the proba- 
 bihty that the two latter gentlemen would have been elected had they entered the 
 contest. 
 
 The governor of the State issued credentials to Messrs. Prentiss and Word, 
 which were presented soon after the opening of the regular session, on December 
 27, 1837.' 
 
 The subject was, after debate, referred to the Committee on Elections, Messrs. 
 Prentiss and Word not being sworn in. 
 
 On January 12, 1838,^ the committee reported the facts of the case, and on 
 January 16^ consideration by the House began, when Mr. Isaac H. Bronson, of New 
 York, offered the following: 
 
 Resolved, That Sergeant S. Prentiss and Thomas J. Word are not Members of the Twenty-fifth Con- 
 gress and are not entitled to seats in this House as such. 
 
 On January 31 * this resolution was amended by striking out all after the word 
 "Resolved" and inserting: 
 
 That the resolution of this House on the 3d of October last, declaring that Samuel J. Gholson and 
 John F. H. Claiborne were duly elected Members of the Twenty-fifth Congress be rescinded; and that 
 John F. H. Claiborne and Samuel J. Gholson are not duly elected Members of the Twenty-fifth Congress. 
 
 This amendment was agreed to— yeas 119, nays 112. 
 
 On February 1 a motion was made to further amend the resolution as amended 
 by adding the following: 
 
 Resolved, That Sergeant S. Prentiss and Thomafl J. Word are not Members of the Twenty-fifth 
 Congress. 
 
 On February 5^ that resolution was carried — ^yeas 118, nays 117, the Speaker 
 voting in the affirmative to break the tie. 
 
 A motion was agreed to to further amend by adding the following: 
 
 Resolved, That the Speaker of the House do communicate a copy of the above resolutions to the 
 governor of the State of Mississippi. 
 
 The question then recurred on agreeing to the original amended resolution as 
 amended by the addition of the second and third resolutions. A division of the 
 question being demanded, the first resolution, rescinding the decision of October 3 
 and unseating Messrs. Gholson and Claiborne, was agreed to — yeas 121, nays 113. 
 
 ' Second session Twenty-fourth Congress, Journal, p. 150; Globe, p. 56. 
 2 Journal. D. 257. 
 
 ^Journal, p. 257. 
 
 ^Journal, p. 289; Globe, p. 104. 
 
 < Journal, p. 338; Globe, p. 150. 
 
 'Journal, p. 354; Globe, p. 158.
 
 644 PRECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 519 
 
 Then the second resolution, declaring Messrs. Prentiss and Word not entitled 
 to seats, was agreed to — ^yeas 118, nays 116. 
 
 The third resolution was agreed to — yeas 122, nays 88.' 
 
 519. The Minnesota election case of Phelps, Cavanaugh, and Becker, 
 in the Thirty-fifth Congress. 
 
 Objection being made to the administration of the oath to a Member- 
 elect, the Speaker held that the question should be decided by the House 
 and not by the Chair. 
 
 The House declined to give immediate prima facie effect to creden- 
 tials when historic facts impeached the authority of the governor and the 
 legality of the election. 
 
 The House gave prima facie effect to the perfect credentials of a State 
 delegation, declining at that time to inquire whether or not the election 
 was invalidated by choice of three persons for two seats. 
 
 The House sometimes seats Members-elect on their prima facie 
 showing, stipulating that this shall not preclude examination as to the 
 final right. 
 
 Representatives elected at the time the constitution of a new State 
 was adopted were seated after the State was admitted to the Union. 
 
 Indorsement of the principle that a State may elect Representatives 
 on a general ticket, even though the law of Congress requires their elec- 
 tion by districts. 
 
 On May 13, 1858,^ Mr. Henry M. Phillips, of Pennsylvania, announced the 
 presence of Representatives from the recently admitted State of Minnesota and 
 moved that they be sworn in, at the same time presenting the following credentials: 
 
 I, Samuel Medary, governor of Minnesota, hereby certify that at a general election held on the 
 13th day of October, 1857, under the constitution adopted by the people of Minnesota preparatory to 
 their admission into the Union as a State, W. W. Phelps received a majority of the votes cast at said 
 election as one of the Members of the United States House of Representatives of the Thirty-fifth Con- 
 gress from the State of Minnesota; and by an official canvass of said votes was, on the 17th day of Decem- 
 ber, 1857, declared duly elected one of said Members. 
 
 {Great Seal i In testimony whereof I have hereunto set my hand, and caused to be affixed 
 
 of i the great seal of Minnesota, at the city of St. Paul, this 18th day of December, 1857. 
 
 Minnesota.) S. Medakt. 
 
 A similar certificate was presented for James M. Cavanaugh. 
 
 Mr. John Sherman, of Ohio, objected to the motion to swear in the two gentle- 
 men. The constitution of Minnesota had provided for the election of three Eepre- 
 sentatives, while only two had appeared. Furthermore, Samuel Medary, who 
 signed the certificates, was no longer governor of Minnesota. He had been Ter- 
 ritorial governor, but the only mode by which the House could judge was by the 
 certificate of the executive officer of the State, tmder the seal of the State. 
 
 ' Besides the debates printed in the Globe on the days the subject was considered, several able 
 speeches are found in the Appendix (pages 68, 93, 124, 127), wherein the constitutional features are 
 discussed. 
 
 2 First session Thirty-fifth Congress, Journal, p. 792; Globe, p. 2108.
 
 § 519 TIMES, PLACES, AND MANNER OF ELECTION. 645 
 
 Question being raised as to the procedure, the Speaker ' said : ' 
 
 The Chair will follow the precedent, which he thinks is a correct one, which was set in the case of 
 the Callfomia Members. The Chair did not undertake there to decide that the Members should be sworn 
 in when they presented themselves, inasmuch as the Constitution of the United States provides that 
 each House shall be the judge of the election, returns, and qualifications of its own Members. The Chair 
 then referred the question to the House to let it decide whether the Members purporting to be elected 
 should be sworn in or not. Therefore the Chair now entertains the motion of the gentleman from Penn- 
 sylvania as a proper one, which refers the question to the House to decide whether they should or should 
 not be sworn in. 
 
 As a substitute for the pending motion, Mr. Sherman offered a proposition 
 referring the credentials to the Committee on Elections, 
 
 with instructions to inquire into and report upon the right of those gentlemen to be admitted and sworn 
 as Members of this House. 
 
 This amendment was agreed to, yeas 91, nays 84. 
 
 The original motion as amended was then agreed to, yeas 108, nays 84. 
 
 On May 20 the Committee on Elections reported .^ The following facts appeared : 
 
 By the act of February 26, 1857, Minnesota Territory was authorized to form a 
 constitution and State government preparatory to admission into the Union; and 
 it was declared that they should have one Representative, and as many more as 
 their population might entitle them to under the existing ratio. 
 
 On October 13, 1857, the people of Minnesota voted on and adopted a consti- 
 tution, and on the same day elected three Representatives in Congress, in accordance 
 with a section of the constitution providing that the State should consist of one 
 district and elect three Representatives. The votes for the three Representatives 
 were canvassed and the results declared. It was alleged by the minority that certifi- 
 cates were issued to the three; but only two were presented to the House. 
 
 On May 11, 1858, an act of Congress admitted Minnesota to the Union and 
 provided that the State should "be entitled to two Representatives in Congress." 
 
 The majority of the committee contended that their only jurisdiction was to 
 inquire into the prima facie right of Messrs. Phelps and Cavanaugh to be admitted 
 and sworn. The question of election was not involved, and hence the question as 
 to the election of three Members did not arise. The committee had seen no other 
 credentials, and had no evidence before them that more than two were elected. The 
 House would not voluntarily search for evidence to reject those appearing with cre- 
 dentials, regular on their face. The committee quoted the constitution of the State 
 of Minnesota to show that the certificates were " in due form, certified according to 
 law." The majority therefore recommended a resolution admitting Messrs. Phelps 
 and Cavanaugh to be sworn, but reserving the privilege of contesting their final 
 right. 
 
 The minority admitted the inexpediency of discussing the right to the seat on 
 the presentation of credentials, but doubted the strict propriety of such a course 
 whenever the papers in possession of the House and the laws which the House was 
 presumed to know showed that there could have been no legal election. The House 
 must know that an election was held under the constitution of Minnesota for tliree 
 
 ' James L. Orr, of South Carolina, Speaker. 
 
 = Globe, p. 2109. 
 
 3 House Report No. 408; 1 Bartlett, p. 248; RoweU's Digest, p. 154.
 
 646 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 519 
 
 Representatives, and that under the law admitting the State only two were allowed. 
 If the law of Minnesota was valid, three were elected. If not valid, none were 
 elected. The case of Reed v. Causden had shown that the people only should elect, 
 and that no power could prefer two out of three elected by the people. 
 
 The minority further objected that on October 13, the election day, Minnesota 
 was still a Territory, and the people were engaged in voting under a law of Congress 
 on a constitution. The Territorial laws and authorities, as decided by the Supreme 
 Court, continued exclusively in force until the passage of the act of admission. There- 
 fore the election of the Representatives was an act of usurpation and void. "There 
 is no case" say the minority, "where the people of a Territory have presumed to 
 elect, by the same ballots which determined whether they should adopt the consti- 
 tution preparatory to admission, Representatives to Congress; still less when on 
 that day they elected more Representatives than the act, under which they were 
 proceeding, said they should have when admitted as a State." The census so far 
 as completed indicated that the State would be entitled to but one Representative 
 under the act of Congress authorizing the adoption of the constitution. 
 
 In reply to tliis contention, the majority say: 
 
 An objection is urged to the right of the claimants to their seats on the ground that their election 
 was prior to the admission of the State into the Union. In the opinion of the committee, if it be admitted 
 that there is no force in nmnerous precedents scattered through the journals of Congress, and extending 
 back to the earliest times of the Republic, sanctioning this course, it should be considered that Con- 
 gress, by the enabling act authorizing the formation of a constitution and State government, thereby 
 fully empowered the people of Minnesota to prepare themselves to assume, upon their admission, all 
 the rights, powers, and attributes of a sovereign State in the Union. One of these rights is that of being 
 represented in Congress; and were elections held prior to admission for Members of the House of Rep- 
 resentatives held void. States must remain unrepresented after their admission, and until elections 
 can be subsequently held, presenting the anomalous spectacle of States in the Union without represen- 
 tation or voice in the national councils. The act of admission into the Union upon being consum- 
 mated, relates back to and legalizes every act of the Territorial authorities exercised in pursuance of 
 the original authority conferred. As the election of Members to this House looks directly to the end 
 in view contemplated by the enabling act of Congress, the committee think it entirely within the scope 
 of action conferred upon the people of the Territory, and should be respected by Congress. 
 
 As to the objection that the Representatives were elected on a general ticket, 
 which was forbidden by the act of 1842, the majority say that even if the act of 
 1842 were still in force, yet the decision of the House in the cases from New Hamp- 
 shire, Georgia, etc., would dispose of this objection. 
 
 On May 20 to 22 ' the report was considered by the House. The debate 
 occurred on the latter date, when attention was called to a certificate on the files 
 of the House dated December 18, 1857, and certifying the election of three Rep- 
 resentatives, George L. Becker being the third. A signed statement of the can- 
 vassers was also presented to show that the highest votes were thrown for Messrs. 
 Phelps and Cavanaugh. 
 
 Mr. Thomas L. Harris, of Ilhnois, who had made the majority report, said 
 these papers had not been brought to the attention of the committee, and did not 
 form part of the case. The majority of the committee still adhered to the opinion 
 that the question involved was not one of election, but of prima facie right. 
 
 > Journal, pp. 859, 870, 883; Globe, pp. 2275, 2292, 2310, 2315.
 
 § 520 TIMES, PLACES, AND MANNER OF ELECTION. 647 
 
 The minority proposition, that Messrs. Phelps and Cavanaugh be not sworn, 
 was disagreed to — -yeas 74, nays 125. 
 
 Then the resolution of the majority, providing that they be sworn, but that a 
 contest should not thereby be precluded, was agreed to, yeas 135, nays 63. 
 
 Then the two Representatives from Minnesota were sworn in. 
 
 520. The California election case relating to Gilbert and Wright in 
 the Thirty-first Congress. 
 
 The House has sworn in on prima facie showing Members-elect 
 chosen at an election the day, etc., of which was fixed by the schedule 
 of a constitution adopted on that election day. 
 
 Objection being made to the administration of the oath to a Member- 
 elect, the Speaker held that the question should be decided by the House 
 and not the Chair. 
 
 References to elections of Representatives in new States wherein no 
 legislation had fixed the time, place, and manner. 
 
 On September 10, 1850,' the credentials of Edouard GUbert and George W. 
 Wright, as Representatives from California, were presented to the House. These 
 credentials showed that the two gentlemen had been elected on November 13, 1849, 
 "in pursuance of the sixth section of the schedule appended to the constitution of 
 the State of California." This section of the schedule provided, among other things, 
 that "this constitution shall be submitted to the people for their ratification or 
 rejection at the general election to be held on Tuesday, the thirteenth day of Novem- 
 ber" [1849], and furthermore provided machinery for holding the election. Section 
 8 of the schedule provided that on the above date "two Members of Congress" should 
 be elected. 
 
 Mr. Abraham W. Venable, of North Carolina, objected to the swearing in of the 
 two gentlemen, and moved that the credentials be referred to the Committee on 
 Elections. 
 
 Mr. James Thompson, of Pennsylvania, made the point of order that it was the 
 duty of the Speaker, unmediately upon the presentation of the credentials under 
 the seal of the State, to administer the oath of office. 
 
 The Speaker ' overruled the point of order, saying that if objection was made 
 it was the duty of the House, not of the Speaker, to determine the question. This 
 decision the Speaker justified vmder the clause of the Constitution providing that — 
 
 each House shall be the judge of the elections, returns, and qualifications of its own Members. 
 
 Mr. Venable then presented his objections to the swearing in of the two gentle- 
 men. He said that the credentials and the annexed schedule of the constitution 
 of the State of California showed that at the time of the election there was no con- 
 stitution, no legislature, and no law in California other than the Constitution and 
 laws of the United States. The constitution perfected by the California convention 
 was of no force vmtil ratified by the people. By the provisions of the Constitution 
 itself it was not legally ratified until after a comparison of the votes and a procla- 
 mation of the governor, thirty days after the election. Elections to be valid must 
 
 ' First session Thirty-first Congress, Journal, p. 1442; Globe, pp. 1789, 1795; Appendix, p. 1253. 
 ' Howell Cobb, of Georgia, Speaker.
 
 648 PRECEDENTS OF THE HOUSE OF EEPBESENTATIVES. § 521 
 
 take place under the constitution and not anterior to its ratification. The Consti- 
 tution further provided that the times, places, and manner of elections of Represen- 
 tatives in Congress "shall be prescribed in each State by the legislature thereof." 
 This condition had not been complied with, for California was not legally a State 
 when the election took place. There was no legislature in existence to regulate the 
 times, places, and manner. There was no standard of qualification of voters as pro- 
 vided by the Constitution. Furthermore, the convention of California, without a 
 census, had assumed that they were entitled to two Representatives. If California 
 had assumed for herself 10 Members, they would have been admissible on the same 
 reasoning that would admit the 2. It could not be argued that the constitutional 
 convention was a primary assembly of the people, and its action equivalent to a 
 corresponding act of a legislature, because the instrument carried on its own face 
 the evidence of its nullity until ratified by the people. 
 
 In reply to this argument it was stated that all the new States, except Missouri 
 and Texas, had sent Representatives before any law had been passed by the legisla- 
 tures designating the times, places, and manner of holding elections. It was cus- 
 tomary for a schedule to be appended to the constitutions such as had been appended 
 in this case. It was true that in most cases the constitutions had been adopted 
 before the Members of Congress were elected; but in the case of Michigan the con- 
 stitution had been voted on the very day when the Members of Congress were elected. 
 
 On September 11, by a vote of yeas 109, nays 59, the motion of Mr. Venable 
 was amended by adding — 
 
 that the Speaker proceed to administer the oath, as prescribed by law, to Edouard Gilbert and George 
 W. Wright, as Members of the House from the State of California. 
 
 The original motion, as amended, was then agreed to. So it was ordered that 
 the credentials be referred, and that the gentlemen be sworn in. 
 
 521. The election case of Tennessee Members in the Forty-second 
 Congress. 
 
 Members-elect from Tennessee were seated in 1871 on prima facie 
 showing, although there was a question as to whether or not the day 
 of their election was the legal day. 
 
 An opinion that the House, in construction of a State law, should 
 follow the construction given by the proper State officers. 
 
 On March 22, 1871,' Mr. George W. McCrary, of Iowa, submitted the report of 
 the Committee of Elections in the case of the Tennessee Members, who had been 
 sworn in at the organization of the House, but of whose election there was doubt 
 because they had been chosen on November 8, 1870, while there was a question as 
 to whether or not the law of Tennessee did not provide for election in August 
 instead of November. 
 
 The committee, after a discussion of the Tennessee statutes, concluded that 
 November 8 was the legal day of election. They further said : 
 
 If, however, the question as to whether by the act of 1870 the time for holding the election in ques- 
 tion was changed from August to November was one of doubt, we should feel bound to follow the con- 
 struction given to it by all the authorities of the State of Tennessee whose duty it has been to construe 
 it and to execute it. It is admitted that the governor and all other authorities in Tennessee having 
 
 ' House Report No. 1, first session Forty-second Congress, Smith, p. 3; Rowell's Digest, p. 261.
 
 § 522 TIMES, PLACES, AND MANNER OF ELECTION. 649 
 
 anything to do with the construction and enforcement of this act of 1870 have construed it as in nowise 
 affecting the act of 1S68, and by common and universal assent the election was held at the time fixed 
 in the latter act. It is a well-established and most salutar}- rule that where the proper authorities of the 
 State government have given a construction to their own constitution or statutes that construction will 
 be followed by the Federal authorities. This rule is absolutely necessary to the harmoniotis working of 
 our complex governments, State and National, and your committee are not disposed to be the first to 
 depart from it. The committee recommend the adoption of the following resolution: 
 
 Resolved, That the election for Members of Congress from the State of Tennessee, held on the 8th 
 day of November, 1870, was held on the day fixed by law, and was not void by reason of having been 
 held on the said day. 
 
 On April 1 1 ^ the resolution was agreed to by the House without debate or 
 division. 
 
 522. The election case of the West Virginia Members in the Forty- 
 third Congress. 
 
 The House seated a claimant elected on what it decided to be the 
 legal day. 
 
 Discussion as to the power of a State convention to fix the time for 
 election of Representatives in Congress, when the legislature had already 
 acted. 
 
 Discussion as to the retroactive effect of the schedule of a new State 
 constitution, whereby a date for election of Congressmen was fixed. 
 
 A question as to whether or not a State ruight make the time of elec- 
 tion of Congressmen contingent on the time of the State election. 
 
 Credentials issued by a governor raising a doubt as to election, 
 the Clerk and the House declined to allow to them prima facie effect, 
 although positive credentials authorized by the State legislature accom- 
 panied. 
 
 Discussion as to whether or not credentials which required reference 
 to State law to make certain their import should be given prima facie 
 effect. 
 
 Instance of an amendment changing the character of a resolution by 
 striking out the word " not." 
 
 At the session of 1873-74^ the House was confronted with a question relating 
 to the validity of the election of the three Representatives from West Virginia, 
 at the election due to be held in that State in 1872 for Members of the Forty-third 
 Congress. 
 
 A law enacted by the West Virginia legislature in 1869 provided : 
 
 1. The general election of State, district, county, and township ofiicers, and members of the legis- 
 lature, shall be held on the fourth Thiu^day of October. 
 
 2. At the said elections in every year there shall be elected delegates to the legislature and one 
 senator for every senatorial district. And in the year 1870, and every second year thereafter, a governor, 
 secretary of state, treasurer, auditor, and attorney-general for the State, a prosecuting attorney, surveyor 
 of lands, recorder, and the number of assessors prescribed by law, and a Representative in the Congress 
 of the United States for the term beginning on the 4th day of March next after the election, for every 
 Congressional district; and in the year 1870, and every fourth year thereafter, a judge of the supreme 
 court of appeals for the State, and a clerk of the circuit court, and a sheriff for everj- county; and in the 
 year 1874, and every sixth year thereafter, a judge for every circuit. 
 
 ' Journal, p. 146; Globe, p. 582. ' First session Forty-third Congress.
 
 650 PRECEDENTS OF THE HOUSE OP REPRESENTATIVES. § 522 
 
 In the early winter months of 1872 a constitutional convention was in session 
 in West Virginia, and prepared a new constitution, one of the provisions of which 
 was: 
 
 The general elections of State and county officers and members of the legislature shall be held on the 
 second Tuesday of October until otherwise provided by law. 
 
 The constitutional convention also agreed to a schedule as follows: 
 
 Sec. 3. The officers authorized by existing laws to conduct general elections shall cause elections 
 to be held at the several places for voting established by law in each county on the fourth Thursday of 
 August, 1872, at which elections the votes of all persons qualified to vote under the existing constitu- 
 tion, and offering to vote, shall be taken upon the question of ratifying or rejecting this constitution 
 and schedule. 
 
 Sec 7. On the same day, and under the superintendence of the officers who shall conduct the 
 election for determining the ratification or rejection of the constitution and schedule, elections shall be 
 held at the several places of voting in each county for senators and members of the house of delegates, 
 and all officers, executive, judicial, county, or district, required by this constitution to be elected by 
 the people. 
 
 The new constitution did not specify any requirement as to the election of 
 Members of Congress by the people. It did provide as follows: 
 
 Such, parts of the common law and of the laws of this State as are in force when this constitution 
 goes into operation, and are not repugnant thereto, shall be and continue the laws of this State until 
 altered or repealed by the legislature. 
 
 The schedule further provided, in event of ratification, that "this constitution 
 and schedule shall be operative and in full force from and including the fourth 
 Thm^day of August, 1872." They were ratified by the people on the said day. 
 
 Several things are evident from the above state of facts: 
 
 (a) That the constitutional convention, by its schedule, established a new 
 date and a new machinery for the election of State officers, thereby superseding 
 the requirements of the law passed by the legislature in 1869. 
 
 (6) That the constitutional convention did not specifically name the Congres- 
 sional elections as taking place on the day set apart for election of State officers. 
 
 (c) That the Constitution of the United States provides that the times for 
 holding Congressional elections shall be prescribed by the "legislature" of the 
 State, and that the West Virginia law of 1869 fulfilled that requirement, although 
 it might be claimed that the schedule of the constitutional convention had swept 
 away the machinery of that act. 
 
 (d) That the schedule was of doubtful validity in prescribing the time of a 
 Congressional election, especially since it was ratified only on the very day when 
 that election would be held. 
 
 There was much doubt in West Virginia as to what should be done, and elections 
 for Congressmen were held both on the fom-th Thm-sday of August and the fourth 
 Thm^day of October. At the August election 81,875 votes were cast on the con- 
 stitutional question and 44,917 for Congressmen. 
 
 In the Third district Frank Hereford was a candidate and was elected at each 
 election. Therefore the Clerk of the House put his name on the roll at the organ- 
 ization of the House.* 
 
 ' First session Forty-third Congress, Record, p. 5.
 
 § 522 TIMES, PLACES, AND MANNER OF ELECTION. 651 
 
 In the other districts the following took place,' as stated in the report of the 
 Committee of Elections in its description of the August election: 
 
 At this election, in the first district — 
 
 Votes. 
 
 Mr. Davis received 13, 361 
 
 Mr. Wilson 12, 948 
 
 H. W. Rook 4 
 
 Aggregate 26, 313 
 
 In the second district the Congressional conventions of both parties met before the August 
 election and adjourned without making nominations. At the August election, however, Mr. Haganj 
 received 3,441 votes returned, and, it is claimed, other votes which were not returned. There were 
 600 votes for other candidates. 
 
 Upon the fourth Thursday of October another election for Representatives was held, at which 
 
 the aggregate vote cast was 22,146. In the first district — 
 
 Votes. 
 
 Mr. Wilson received 3, 708 
 
 Thirty-nine other candidates 381 
 
 Total vote 4, 089 
 
 In the second district, at the October election, Mr. Martin received nearly 6,000 votes, which 
 was a majority over all other candidates. 
 
 The governor of West Virginia gave Messrs. Davis and Hagans credentials certifying that they 
 were elected, provided the fourth Thursday of August was the legal day for electing Representatives 
 in Congress; and to Messrs. Wilson and Martin like credentials certifying that they were elected, 
 provided the fourth Thursday of October was the legal day for electing Representatives. 
 
 The legislature of West Virginia subsequently passed an act directing certain State officers to 
 give certificates to the Representatives elected to Congress, who gave formal certificates to Messrs. 
 Wilson and Martin, 
 
 who had been elected in October. 
 
 The form of the certificates ' given was : 
 
 State of West Virginia, to wit: 
 
 I, John J. Jacob, governor of the said State, pursuant to the act of the legislature thereof in such 
 case made and provided, do hereby certify that Benjamin WUson was duly chosen on the 24th day of 
 October, 1872 (provided that was the time prescribed by law for holding an election for Representatives 
 in the Congress of the United States), a Representative in the Congress of the United States for the 
 First Congressional district of this State, composed of the counties, etc., * * *, for the term 
 commencing on the 4th day of March next. 
 
 Given under my hand and the great seal of the State of West Virginia, this 29th day of Januarj-, 
 1873. 
 
 [seal.] John J. Jacob. 
 
 By the governor: 
 
 John M. PHrLirps, 
 
 Secretary of State. 
 
 The certificate given in pursuance of the act of the legislature was in this form: 
 
 State of West Virginia, to mt: 
 
 We [names of officials enumerated], of said State, pursuant to the act of the legislature thereof in 
 such case made and provided, do hereby certify that Benjamin Wilson, of the county of Harrison, was 
 duly chosen and regularly elected, in accordance with the laws of this State, on the 24th day of 
 October, 1872, a Representative in the Congress of the United States, for the First Congressional 
 
 ' See House Report No. 7. * Record, p. 40.
 
 652 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 5'22 
 
 district of this State, composed of the counties, etc., * * *^ for the term commencing on the 4th day 
 of March, 1873. 
 
 Given under our hands and the great seal of the State of West Virginia, which ie hereto afiixed 
 by the secretary of state, this 22d day of November, 1873. 
 
 Charles Hedrich, Secretary of State, etc. 
 (Other signatures lacing appended.) 
 
 The Clerk, in view of the alternative nature of the certificates issued by the 
 governor, announced to the House, at its organization on December 2, 1873,' that 
 he considered them inadmissible for enrolling either of the candidates from the First 
 and Second districts. 
 
 On December 3' Mr. John Cessna, of Pennsylvania, proposed the following 
 resolution: 
 
 Resolved, That the name of John J. Davie he placed on the roll of this House as a Representative 
 from the First Congressional district of West Virginia, without prejudice to the right of Benjamin Wilson 
 to contest the seat hereafter; and that the name of J. Marshall Hagans be placed on the roll of tliis House 
 as a Representative from the Second Congressional district of West Virginia, without prejudice to the 
 right of Benjamin F. Martin to contest his seat hereafter, and that they be forthwith sworn in as Members 
 of this House. 
 
 This resolution precipitated a long debate on the sufficiency of the prima facie 
 evidence in the case. The argument for the resolution was based on the supposition 
 that a reference to the law of West Virginia would show the August election legal. 
 On the other hand it was argued, especially by Mr. L. Q. C. Lamar, of Mississippi, 
 that such an argument was fatal, since no prima facie right could be based on a 
 certificate which had to be supported by reference to other matters, whether cir- 
 cumstances of law or fact. Furthermore, the alternating feature of the governor's 
 certificate emasculated the certificates. Also the Clerk had, acting under the law, 
 rejected the certificates, and the House ought not to reverse his decision until after 
 examination by a committee. 
 
 The demand for the previous question on the resolution was negatived — ayes 
 54, noes 109. Then the resolution was, without division, referred to the Committee 
 on Elections, and the oath was not administered to either of the claimants. 
 
 On January 14, 1874,^ the report of the committee was submitted by the chair- 
 man, Mr. H. Boardman Smith, of New York. It was also signed by Mr. C. K. 
 Thomas, of North Carolina; Edward Crossland, of Kentucky; R. M. Speer, of 
 Pennsylvania, and L. Q. C. Lamar, of ^lississippi. Messrs. Lemuel Todd, of Penn- 
 sylvania; Horace H. Hanison, of Tennessee, and Ira B. Hyde, of Missouri, gave a 
 qualified approval. Mr. Speer submitted views supplemental to the report, giving 
 the argument in a different way. Messrs. J. W. Hazelton, of Wisconsin, and J. W. 
 Robinson, of Ohio, filed minority views sustaining the August election, while the 
 majority of the committee sustained the October election. 
 
 The questions discussed may be divided into several branches, and for con- 
 venience the minority propositions may be stated first, since the House ultimately 
 decided in favor of the minority views : 
 
 (1) May a constitutional convention prescribe the time for electing Representa- 
 tives in Congress 1 
 
 ' Record, p. 5. 
 
 "Record, pp. 35-46; Journal, pp. 39^1. 
 
 3 House Report No. 7; Smith, p. 108; Rowell's Digest, p. 284. 
 
 i 
 
 i
 
 § 522 TIMES, PLACES, AND MANKEB OF ELECTION. 653 
 
 The minority say: 
 
 The constitutional convention had authority to prescribe a time, after its ratification, for the 
 election of Representatives. The case of Michigan is in point. The State constitution was adopted 
 on the 24th day of June, 1835. Section 6 of the schedule contained these words: 
 
 "The first election of governor, lieutenant-governor, members of the State legislature, and a 
 Representative in the Congress of the United States shall be held on the first Monday of October next 
 and on the succeeding day." 
 
 The Representative was so elected on the first Monday and succeeding day in October, 1835, and 
 was subsequently admitted to his seat in the House. 
 
 See also the case of Iowa. The constitution of Iowa was adopted May 18, and ratified August 3, 
 1846. The sixth section of the schedule provides as follows: 
 
 "The first general election under this constitution shall be held at such time as the governor of the 
 Territory, by proclamation, may appoint, within three months after its adoption, for the election of a 
 governor, two Representatives in the Congress of the United States (unless Congress shall provide for 
 the election of one Representative), members of the general assembly, and one auditor, treasurer, and 
 secretary of state." 
 
 Representatives were chosen under the governor's proclamation on the 26th of October, 1846, and 
 subsequently admitted to seats in the House. 
 
 We are ven,' firmly impressed with the conviction that the precedents cited are conclusive upon 
 this question. The word "prescribe," as used in the Constitution of the United States in connection 
 ■with the election of Representatives, may well be said to have a settled meaning and construction. 
 
 We may add, in conclusion, that we are all the more willing to follow this construction in the present 
 case, because it saves us from the alternative of disfranchising a State, while it seems to do no injustice 
 to anyone. 
 
 As a precedent, it is entirely without consequence one way or the other, because Congress has 
 already fixed a uniform time for electing Representatives in Congress, and thus taken the whole subject 
 out of State control, after the year 1876. 
 
 The supplemental majority report, presented by Mr. Speer and signed by 
 Messrs. Lamar and Crossland, took the contrary view: 
 
 But if it is possible to claim that the convention did change the day for holding Congressional elec- 
 tions in West Virginia from the fourth Thursda}' of October to the fourth Thursday of August, in 1872, 
 then it is respectfully submitted that its act was unauthorized and void. 'Where the legislature has 
 prescribed no time, a different question may arise. But in this case the legislature had prescribed a 
 time, had obeyed the requirement of the Federal Constitution, had discharged its sworn duty, and had 
 exercised its tindoubted power. \\'hat shadow of authority, therefore, was there in the convention to 
 interfere? The State constitution had not given to the legislature the power to say when Congressmen 
 shall be elected (for it did not have it to give), and neither State constitution nor State convention could 
 take it away. The legislature derived it from the supreme law of the land, the Constitution of the United 
 States, and in its exercise it knew but one master. 
 
 In the ilassachusetts convention of 1820 a resolution was submitted declaring that the State 
 constitution ought to be so amended as to provide for the election of Members of Congress in such 
 districts "as the legislature shall direct," thus limiting its discretion to prescribe "the times, places, and 
 manner" of their election. In the discussion that followed Justice Story opposed the resolution, declar- 
 ing that it "assumes a control over the legislature which the Constitution of the United States does not 
 justify. It is bound to exercise its authority according to its own views of public policy and principle; 
 and yet this proposition compels it to surrender all discretion. In my humble judgment, and I speak 
 with great deference for the convention, it is a direct and palpable infringement of the constitutional 
 provisions to which I have referred." 
 
 Mr. Webster followed, limiting himself, however, to the expediency of the proposition. He 
 declared that "whatsoever was enjoined on the legislature by the Constitution of the United States, the 
 legislature was bound to perform; and he thought it would not be well by a provision of this constitution 
 to regulate the mode in which the legislature should exercise a power conferred on it by another consti- 
 tution." And the proposition failed.
 
 654 PRECEDENTS OF THE HOUSE OF EEPRESENTATrV'ES. § 522 
 
 In the case of Baldwin v. Trowbridge, in the Thirty-ninth Congress, this House held that "where 
 there is a conflict of authority between the constitution and the legislature of a State in regard to fixing 
 the place of elections, the power of the legislatiu-e is paramount." 
 
 This case goes further than is required in the cases now pending. 
 
 An apparently contrary doctrine was sustained in the case of Shiel v. Thayer, from Oregon, in the 
 Thirty-seventh Congress. The committee there say they "have no doubt that the constitution of the 
 State has fixed, beyond the control of the legislature, the time for holding an election for Representative 
 in Congress." 
 
 But this part of the report was a mere dictum, for there was nothing in the case to require the com- 
 mittee to determine any such question. Shiel had been elected on the day fixed by the constitution, 
 while Thayer claimed to have been elected on the day of the Presidential election — a day not prescribed 
 by any authority for the election of a Member of Congress. No question as to the power of the legislature 
 to fix the time arose in the case; and what was said upon this point was wholly unnecessary, in view of 
 the undisputed facts. 
 
 In the debate/ quoting the Federal Constitution, Mr. Wilson, of Maryland, con- 
 tended that the word "prescribe" meant the laying down beforehand of an absolute 
 rule, not a conditional one, and therefore that the schedule in question did not 
 ' ' prescribe ' ' sufficiently. 
 
 Mr. Lamar contended ^ that the distinction between the words "legislature" 
 and " convention " were well understood by the framers of the Constitution. A con- 
 vention could not by its essential nature and functions overrule the legislature. A 
 convention, like the legislature, was not sovereign, but onty one of the agencies of 
 absolute sovereignty which resided in the people. 
 
 Mr. Robinson, of Ohio, argued ^ that the issue was not drawn between the con- 
 vention and the legislatiu'e, since the convention merely changed the occasion which 
 the legislature had prescribed as the time for holding Congressional elections. 
 
 (2) Might the schedule of the constitution, the ratification of which could be 
 certain only at the conclusion of the election, actually attempt to prescribe the time 
 for the election of Representatives in Congress? 
 
 The minority say: 
 
 We maintain the affirmative of this proposition. Even if we concede that the word "prescribe" 
 shall have here its narrowest and most technical signification, there seems to us to have been a sufficient 
 prescription of the time. 
 
 The schedule submitted with the new constitution provides that, in case of adoption, the same 
 shall be deemed and taken to have been in force from and during the whole said fourth Thursday of 
 August. The law knows no fraction of a day. Being ratified, it became and was, in fact aa well as 
 legal intendment, the law of the State prior to the opening of the polls on that day. The time was 
 therefore prescribed when the ballot boxes were opened on that day; that is to say, the law making 
 that day the day of the general election for State and local officers was in force before a vote was 
 poUed. But it is said that this was not a prescription of the time, because, if the constitution had not 
 been ratified, the election would have amounted to nothing. Saying nothing just here about the 
 impolicy and injustice of applying so technical a rule for the purpose of disfranchising a State, we 
 submit that it is too late to raise that question. 
 
 The majority report thus combats this theory: 
 
 5. In answer to these difficulties, it is suggested that by night of election day the old constitution 
 was superseded, and that the new constitution was thereupon "operative and in full force from and 
 including the foiu-th Thursday of August, 1872," and that "fractions of days are not noticed by the 
 makers either of statutory or organic laws." 
 
 But the answer suggested admits that down to the morning of the fourth Thursday of August any 
 
 • Record, p. 934. ' Record, p. 846. ' Record, p. 848.
 
 § 522 TIMES, PLACES, AND MANNER OF ELECTION. 655 
 
 law or ordinance prescribing the holding of a Congressional or State election on that day was unconsti- 
 tutional and void. Nor (if this be material) is it unqualifiedly true that "fractions of a day are not 
 noticed." 
 
 "Common sense and common justice equally sustain the propriety of allowing fractions of a day 
 whenever it will promote the purposes of substantial justice." (Potter's Dwarris, 101; see 2 Storj', 
 C. C. R., 571.) 
 
 It is also suggested that the admission of Senators and Representatives simultaneously with the 
 admission of new States, who have been elected at the same time with the ratifications of the first State 
 constitutions, is sufficient authority for sustaining the validity of the August election. But these cases 
 have always been put upon the ground of "necessity," and upon the theory, whether it be a "legal 
 fiction " or whatever else, that a State is not fully in the Union until it is in its normal and constitutional 
 relations with the Union and represented in Congress. Of course between such cases, whether right or 
 wrong, and the case of West Virginia no analogy can be drawn. The constitutional provision had been 
 in full sway in West Virginia for some ten years. What suspended it? 
 
 At page 409 of Jameson's work on constitutional conventions the author says of these precedents: 
 
 "There being as yet no State, and of course no State legislature, unless the convention could make 
 a temporary arrangement for the election of Members of Congress, the new State must, after its admission 
 into the Union, be unrepresented in that body untU a State legislature could be elected and could pass 
 the necessary laws — a condition involving often a considerable delay. In such cases, accordingly, the 
 custom has been for the convention toanticipate the action of the legislature, a course which, on account 
 of its obvious convenience, has been commonly acquiesced in. These cases, however, form exceptions 
 to a rule which is general — that it is the State legislatures which apportion their several States for Con- 
 gressional elections. I have failed to find a single exception to that rule, save in the cases of Territories 
 seeking to become States or of States standing substantially upon the same footing as Territories. 
 
 "Besides, in one view of the subject such action of the Territories, taken in connection with that 
 of Congress following it, involves no impropriety, if it is not strictly regular. Immediately following that 
 clause of the Federal Constitution giving the power of determining the ' times, places, and manner of 
 electing Senators and Representatives' to the State legislature, is the important reservation, 'but the 
 Congress may at any time, by law, make or alter such regulations, except as to the place of choosing 
 Senators.' Hence, having the power to make or alter. Congress doubtless might ratify such regulations, 
 however made; or if a State, actual or inchoate, were in such a condition that it had no lawful legislature, 
 Congress might itself, for the sake of convenience, establish them by its direct action. This it does, in 
 substance, by anticipation in those cases in which it accepts and admits into the Union Territories 
 presenting themselves with constitutions containing the apportionments referred to." 
 
 In the course of the debate ' the chairman of the committee, Mr. Smith, called 
 attention to the fact that the old constitution of West Virginia provided that the 
 ordinances of the constitutional convention should have no effect until they were 
 ratified, and that they should not have any retroactive effect. Senators and Mem- 
 bers admitted simultaneously %vith the admission of new States had always been 
 elected outside the constitution. Such was the case in elections tmder the recon- 
 struction acts, such as that of March 11, 1868. These precedents could not be 
 applied to the case of a State already within the Union. It was further urged by 
 Mr. Lamar ^ that the schedule was a mere addendum, temporary in its nature, to 
 test the will of the people and secure the transition from the old to the new system. 
 As to the point that the schedule was retroactive, and no one could tell in advance 
 whether the election was to be valid or not, Mr. Benjamin F. Butler, of Massachu- 
 setts, pointed out ' that it proved too much, since if the objection was good it went 
 to the whole State government of West Virginia and invalidated it. 
 
 (3) ilight the State make the election of Representatives in Congress contingent 
 upon the date of election of State officers, and moveable therewith? 
 
 ' Record, pp. 818, 819. ^ Record, p. 843. « Record, p. 959.
 
 656 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 522 
 
 The minority views say: 
 
 The legislature of 1869, when it framed the election law and provided all the machinery for conduct- 
 ing an election, and enacted that Representatives in Congress should be elected at said elections, intended 
 to point out and designate the occasion for electing such Representatives; intended that the one election 
 should be held in conjunction with the other; in other words, that when it provided the means or agen- 
 cies for holding the State election, and authorized Representatives to be elected at the time of said elec- 
 tion, and under and by virtue of the machinery for said election, it did not intend that Representatives 
 in Congress should not be elected at said election and without any legal "manner" whatever provided 
 therefor. 
 
 Connecting the election of Representatives with an occasion was, moreover, entirely in harmony 
 with the practice of the old State of Virginia, which for some forty years, it seems, was authorized to elect 
 Representatives in Congress under a statute which fixed the election at the holding or opening of certain 
 terms of court, which latter were constantly changing with successive acts of the legislature. 
 
 It being, we think, clearly the purpose of the legislature that Representatives in Congress should 
 be elected at the general election, it follows that when the occasion was changed, transplanted, the 
 election of Representatives in Congress went with it. 
 
 The majority say, in the views filed by Mr. Speer — 
 
 West Virginia waa a State in full life, with all the departments of her local government in active 
 and harmonious operation. It was the duty — the sworn duty — of her legislature to prescribe the time 
 of electing her Representatives in Congress. Recognizing this duty, the legislature, as we believe, 
 did definitely prescribe the time, and if it did, there was no power in the State or out of it competent 
 to change the time except Congress and the legislature itself. It is claimed by those who hold the 
 August election to be valid that the legislature prescribed only the "occasion" and not the time. But 
 this assumes that the legislature did not only not do its duty, but that it did not intend to do it. For 
 whence does it derive the power to prescribe the occasion for holding Congressional elections — to pre- 
 scribe an event, the happening of which may be placed utterly beyond its control or authority? It 
 not only has the power, but it is under the most positive obligation, to prescribe the time. But nam- 
 ing an event on the occurrence of which the election shall be held, and leaving the time of the event to 
 be fixed or changed by another body, which has no power to fix the time of the election itself, it seems 
 to us can in no just sense be regarded as a compliance with the mandate of the Federal Constitution. 
 And hence no intention on the part of the legislature so to evade its duty is to be inferred, and no such 
 construction should be placed upon its act, unless the language absolutely demands it. If the legis- 
 lature can discharge its duty by naming an occasion, which occasion may be fixed by some other power 
 in the State, then that other power may, under the same reasoning, entirely abolish the occasion. If 
 it is competent to postpone it for a day, it is equally competent to postpone it for a year or for all time. 
 Under this view the legislature would legally prescribe the occasion, which occasion could legally never 
 happen. 
 
 Premises which lead to such a conclusion can not be sound, and any construction of the statute 
 of a State legislature which logically leads to such a result should be adopted with extreme hesitation, 
 and only from absolute necessity. 
 
 The report of the majority says: 
 
 A general State election can only be "prescribed" by law. Does it stand to reason that section 
 2, chapter 3, of the code meant to fix any other kind of a State election as the "occasion" of the Con- 
 gressional election? But this convention could not enact a "law," and if it could, and had full legis- 
 lative power, a law (though it may be made to take effect on the happening of a future contingency) 
 must be a valid law, in presenti, when it leaves the hands of the legislature, and can not become a 
 "law" by the approval of a popular vote. (4 Seld., N. Y., 483, etc.; Rice v. Foster, Brightly's Elec- 
 tion Cases, 3.) 
 
 The right of the legislature to hinge the Congressional election on the State 
 election was strongly combated in debate. Mr. Lamar said ' that the Congressional 
 
 ' Record, p. 843.
 
 § 522 TIMES, PLACES, AND MANNER OF ELECTION, 657 
 
 elections must be final and unconditioned by any contingencies which looked to 
 their nullification. If the makers of the West Virginia law of 1869 had intended 
 such a construction they would have made it plain. Mr. Lamar challenged the 
 alleged Virginia precedents; but Mr. Robinson, of Ohio, replied' by quoting the 
 Virginia law of 1813, which was in force forty years, and fixed the Congressional 
 elections "on the first day of their April court" in each coiuity. He also quoted a 
 Kentucky statute of 1802, a Louisiana law of 1841, and a New Jersey law of 1820 
 to the same efl'ect. 
 
 (4) Did the law of 1869 actually prescribe the fourth Thursday of October as 
 the date for the election of Representatives in Congress independent of the State 
 election ? 
 
 Speaking of the West Virginia law of 1869, already quoted, the minority 
 views say : 
 
 The second section says — 
 
 At the said election, * * * in the year 1870, and every second year thereafter, a governor, 
 secretary of state, etc., "and a Representative in the Congress of the United States" shall be elected. 
 
 At the said election; at what said election? Clearly that election mentioned in the first section, 
 to wit, the general election for State, district, county, and township officers. 
 
 The word which is employed to introduce the said second section, as well as the general mean- 
 ing and obvious intent of the section, render this very manifest. 
 
 "At the said election for State and local officers Representatives shall be elected." "At," in its 
 ordinary and usual application as applied to time, means contemporary with, in conjunction with. 
 
 Now, how can it be claimed that Representatives in Congress can be elected at the general elec- 
 tion for State and local officers on the fourth Thursday of October when there is no general election 
 for State and local officers on that day? 
 
 Again, we fail to tinderstand what authority there was for holding an election for Representatives 
 in Congress only, on the fourth Thursday of October. The law of the State, the code of 1869, regula- 
 ting the manner of holding the elections, prescribing the officers who should conduct the same, directing 
 as to the making returns, etc., had reference to the State election — the election of the officers of the 
 State government as distinguished from the Federal Government. The election of Representatives 
 in Congress was hinged on to the State election. It was a mere incident of the State election. They 
 were to be elected at the general election for State and local officers. 
 
 Where is the authority for setting in motion the machinery provided for the State government 
 to elect Representatives in Congress alone? Who is to give the requisite notice; who to act as inspect- 
 ors; who to furnish places for conducting the election; who to make the returns and declare the result? 
 The code of West Virginia does not require one of the officers named in the election act to take a step 
 or lift a finger at any election of Representatives in Congress apart and distinct from the State election. 
 Their duty relates exclusively to the State election and the election of Representatives in connection 
 with such election. 
 
 The majority report joins issue on this point: 
 
 Section 2 is simply an enumeration of the officers, the day of whose election was prescribed under 
 generic terms in section 1. 
 
 The legislature therefore had implicitly obeyed the requirement of Article I, section 4, of the 
 Constitution of the United States, and had "prescribed" for the election of Representatives in Congress 
 a day certain in section 1 and not an occasion in section 2. 
 
 The fact that Representatives are specially mentioned in section 2 does not affect the question, 
 except to demonstrate that they are included in the term "district officers" in section 1. So is the 
 governor mentioned in section 2, though plainly included in the class of "State officers" mentioned in 
 section 1. 
 
 ' Record, p. 847. 
 5994— VOL 1—07 42
 
 658 PEECEDENTS OF THE HOUSE OF KEPRESENTATIVES. § 522 
 
 4. Is there any opportunity for "construction" here? If there be, then the old election law of 
 West Virginia, passed November 13, 1863, quoted above, and which was codified and somewhat abbre- 
 viated in chapter 3 of the code, seems to be important on this question. By the second paragraph of 
 that act it is provided, "And on the fourth Thursday of October, in 1864, and on the same day in every 
 second year thereafter, a governor, * * * a Representative in the Congress of the United States," 
 etc., shall be elected. 
 
 This act prescribed a day certain. Can it be fairly claimed that, as abbreviated in the codificar 
 tion, there was an "intention" to change the "prescribed time" from a day certain to an ambulatory 
 "occasion?" 
 
 The attempt at abbreviation consisted in the mention but once of the prescribed day, whereas in 
 the act codified it was often repeated, and in grouping each class of ofiicers to be elected under a generic 
 term in the first section, which alone prescribes the time. 
 
 In the debate ' Mr. Robinson, of Ohio, urged that the code of 1869 in failing 
 to specify Representatives particularly in the first section, had intended to change 
 the more specific designation of the former law. It was also urged " by Mr. Wilson, 
 of Maryland, that manifestly the lawmakers of West Virginia never contemplated 
 that the fourth Thursday of October should continue an election day for Congress- 
 men after it had ceased to be a State election day. It was further argued that in 
 1872 there manifestly could be no State election in October, because the new con- 
 stitution had abrogated it. 
 
 (5) Did the schedule of the new constitution actually provide for a general 
 election and repeal the law of 1869 prescribing the October election? 
 
 The minority views say: 
 
 It is true it was not held at the same time as had previously been designated for the general 
 election, but uniformity of time is not of the essence of a general election. It may be one year in October 
 and the next in November and yet be the general election. In the State of Iowa, for instance, the general 
 election every fourth year is held in a different month from that in which it occurs in the intermediate 
 years. 
 
 The legislature in a State where there is no constitutional inhibition may change the time of the 
 election every year or every other year, but it is no less the general election. 
 
 It is true it was not "to count" in case the constitution should fail to be ratified. It is equally 
 true that an acknowledged general election does not count in case of a tie. If a mere uncertainty as 
 to results varies the case in one instance, it does in another. 
 
 It is not true that it was an election simply to ratify or reject the constitution. It was equally an 
 election — made so by the same section of the schedule — to officer the State. Every officer required to 
 be elected by the people, from governor down to constable, was to be elected on that day. The people 
 were required to do exactly that thing in August, 1872, which in October, two years before, was known 
 to everybody to be the general election and which all concede will be the general election when it 
 occurs in October, 1874; and yet for some reason it is insisted that it was, nevertheless, not a general 
 election then. It is unnecessary to enlarge upon what is a general election. Definitions are easy. 
 The case under consideration seems to us to comprehend all the elements of what we every day speak 
 of and recognize as a general election. It was the only general election held in 1872. It was intended 
 to and did provide the entire official staff of the State government. 
 
 The minority hold that the convention had fxill and ample authority to change 
 the election from October to August. 
 
 The majority, in the views submitted by Mr. Speer, quoted the language of 
 the schedule and say: 
 
 Here is a plain, clear designation by name or class, of all the officers to be voted for at the August 
 election. Members of Congress are not named, and as they are not State officers and are not "required 
 
 ' Record, p. 847. " Record, p. 935.
 
 § 522 TIMES, PLACES, AND MANNER OF ELECTION. 659 
 
 by this constitution to be elected," tliey are excluded from the provisions of the section upon the famUiar 
 maxim, "expressio uniiis, exclusio alterius." The convention, apparently conscious of its want of 
 power, was careful in the use of its language. 
 
 Under what authority, then, could an election for Representatives in Congress be held on the 
 fourth Thursday of August, 1872? The code prescribed the fourth Thursday of October, and the con- 
 stitution and schedule were intentionally silent upon the subject. No change in the time of holding 
 the Congressional election in West Virginia has been directly made or attempted by any power, compe- 
 tent or incompetent, authorized or unauthorized. If made at all, it has been made indirectly by a 
 body that had no power to make it directly, or, if it had, clearly did not attempt to exercise it. If the 
 code, as claimed by those who hold the August election valid, prescribed only the occasion, and that 
 the general election, yet the new constitution did not provide that the general elections should be held 
 in August, but "on the second Tuesday of October until otherwise provided by law." The election 
 held in August, 1872, was for the special purpose of voting for or against the constitution; specially for 
 this purpose, because a candidate for any of the offices voted for might have received every vote cast, 
 and yet he would not have been elected, or, what is practically the same, would not have been entitled 
 to hold the office if the constitution had been defeated, for there would have been no office to hold. It 
 is not easy to understand how the "general elections" provided for by the code can be construed to 
 mean a single election, held for an extraordinary purpose, on a day not prescribed by the legislature, 
 and never to be held again on that day or for that purpose, and which, in a certain contingency, is not 
 to elect anybody! The code pro\'ides that "at the said elections" certain officers shall be elected; and 
 yet it is urged that the schedule supplants these "said elections" with an election at which nobody 
 can, in one event, be elected! It seems to us too clear for argument that no legal election for Congress- 
 men could be held in August, either under the code or the constitution. There was no provision in 
 the schedule for such an election, and there was clearly none in the constitution, for upon its ratification 
 it became operative for every hour of the day on which the August election is held, and, by the express 
 language of section 7, article 4, transferred the "general elections" to the second Tuesday of October. 
 Hence, from the earliest hour of that day it was the organic law of the State that the "general elections" 
 must be held in October, until otherwise provided; and yet it is claimed that the general elections 
 prescribed in the code were held in August by vutue and force of this same constitution. 
 
 Neither Congress nor the legislature having changed the time of holding the Congressional election, 
 and the convention not having done so directly, if changed at all, how was it done? 
 
 The schedule could not by implication carry with it the repeal of the law 
 prescribing a time for the election of Congressmen, as there was nothing repugnant 
 to the new constitution ia that law. 
 
 In debate ' an equal diversity of views arose as to whether or not the election 
 provided by the schedule was a special or general election. 
 
 (6) As to the merits of the case, considering the elections as expressions of 
 the will of the people. 
 
 The minority views argue : 
 
 In view of the foregoing considerations, and of the further facts that nearly double the number 
 of votes were polled in August as in October; that the Representative from the Third district has already 
 taken his seat and entered on his duties; that in the First district, at the August election, a joint discus- 
 sion was held, a large vote was polled — larger than that for several of the candidates on the State ticket — 
 and that no public interest is likely to be subserved by imposing upon the State the expense, agitation, 
 and delay of another election, we are in favor of sustaining the August election. 
 
 The majority call attention to the fact that in the Second district the con- 
 ventions of both parties assumed that the election would be in October and that the 
 vote received by Mr. Hagans in August was much smaller than that received by 
 Mr. Martin in October. 
 
 ' Record, pp. 843, 934, 958.
 
 660 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 523 
 
 In the debate this pomt was dwelt on at greater length, Mr. Todd denying that 
 a sufBcient number of votes was cast in October in the First district to constitute 
 an election, and quoting various cases in support thereof. 
 
 After having been debated on January 21, 22, 23, 26, and 27,' the questions 
 came to an issue on the latter date." 
 
 The first question was on two resolutions of the majority of the committee 
 declaring the two persons claiming seats by virtue of the August election not entitled 
 thereto : 
 
 First. Resolved, That Mr. Davis, claiming to have been elected a Kepresentative in the Forty- 
 third Congress from the First Congressional ditricts of West Virginia, was not duly elected, and is not 
 entitled to a seat in this House. 
 
 Second. Resolved, That Mr. Hagans, claiming to have been elected a Representative in the Forty- 
 third Congress from the Second Congressional district of West Virginia, was not duly elected, and ia not 
 entitled to a seat in this Hoiwe. 
 
 On behalf of the minority Mr. Hazelton moved to strike out the word "not" 
 in the first of the two resolutions; and this motion was agreed to — yeas 147, nays 
 82. Then the resolution as amended was agreed to — yeas 137, nays 81. 
 
 Thereupon Mr. Davis appeared and took the oath. 
 
 In a similar manner the word "not" was stricken from the second resolution 
 by a vote of yeas 119, nays 88, and then the resolution as amended was agreed to — 
 yeas 115, nays 75. 
 
 Thereupon Mr. Hagans appeared and took the oath. 
 
 523. The Colorado election case of Patterson and Belford in the Forty- 
 fifth Congress. 
 
 The Clerk declined to enroll the bearer of credentials regular in form 
 but sho'wring an election at a time apparently not that fixed by law. 
 
 The House declined to give prima facie effect to credentials perfect in 
 form, but referring to an election on a day of doubtful legality. 
 
 Instance wherein credentials were referred to a committee with in- 
 structions to inquire either as to prima facie or final right. 
 
 Form of resolution instructing a committee to inquiry either as to 
 prima facie or final title to a seat. 
 
 On October 15, 1877,^ at the organization of the House, after the roll of Members 
 had been called, the Clerk * announced that there had been received from the 
 State of Colorado a certificate signed by the governor and under the seal of the 
 State, declaring the election of James B. Belford on the 3d day of October, 1876. 
 The Clerk stated that under the law he could enroll only those whose credentials 
 showed them to be elected in accordance with the laws of their States respectively, 
 or the laws of the United States. In the opinion of the Clerk there was no law of 
 Colorado or the United States authorizing the election of a Representative to the 
 Forty-fifth Congress on the 3d day of October, 1876. Therefore he had not enrolled 
 the name of Mr. Belford. The Clerk also annomiced that he had received a protest 
 signed by Thomas M. Patterson, claiming to be a Representative-elect from the State 
 
 ' Record, pp. 816, 842, 875, 933, 958-964. ' First session Forty-fifth Congress, Record, p. 52. 
 
 2 Journal, pp. 325-331. * George M. Adams, Clerk.
 
 § 524 TIMES, PLACES, AND MANNER OF ELECTION. 661 
 
 of Colorado, and accompanying that protest a certified copy of an abstract of the 
 votes cast in each county on the Tuesday after the first Monday of November for 
 Representative to the Forty-fifth Congress. The abstract showed, however, that 
 the votes were never canvassed by any board of canvassers and that no certificate 
 was ever issued by anyone declaring the result of the election. While of the opinion 
 that the November election was the one provided for by law, the Clerk did not 
 consider that Mr. Patterson's credentials entitled him to be enrolled. 
 
 On October 17,' after the House had been organized, Mr. Eugene Hale, of 
 Maine, presented Mr. Belford's certificate, and moved that he be sworn in. The 
 question was discussed on the 17th, 22d, 24th, and 25th.^ Mr. Hale urged that as 
 Mr. Belford had a certificate in due form he was entitled prima facie to the seat. 
 But it was objected that as the certificate specified that the election was on October 
 3, it became the duty of the House in determining the prima facie right to decide 
 whether October 3 was really the election day. 
 
 On October 25,^ by a vote of yeas 137, nays 130, the House substituted for 
 the motion of Mr. Hale the following, proposed by Mr. John T. Harris, of Virginia: 
 
 Resolved, That the certificate presented by James B. Belford and the certified abstracts of votes 
 cast upon the 7th day of November, A. D. 1876, for Representative to the Forty-fifth Congress, and 
 accompanying papers, presented by Thomas M. Patterson, upon which each claims the office of Repre- 
 sentative to the Forty-fifth Congress of the United States from the State of Colorado, be referred to the 
 Committee on Elections, to be appointed hereafter, with instructions to said committee to report either 
 as to the prima facie right or final right of said claimants, as the committee shall deem proper, and that 
 neither claimant be sworn in until said committee reports. 
 
 Then Mr. Hale's motion as amended by the substitute was agreed to. 
 
 524. The election case of Patterson and Belford, continued. 
 
 A question as to the right of a constitutional convention of a State 
 to fix the time for the election of Representatives in Congress. 
 
 A claimant who received a small vote, not officially canvassed or 
 declared, but cast on the legal day, was preferred to one receiving a 
 far larger vote on a day not the legal one. 
 
 Votes cast on a legal election day were held valid by the House 
 although the State official had withdrawn his proclamation calling the 
 election for that day. 
 
 The fact that a large portion of the electors fail to participate does 
 not invalidate an election held on the legal day. 
 
 A question as to the authority of a construction of law by State 
 officials and people in a case relating to time of electing Congressmen. 
 
 On December 6, 1877,* Mr. John T. Harris, of Virginia, from the Committee 
 on Elections, submitted the report of the majority of the committee. 
 
 The report disregarded the question of prima facie right, and proceeded at once 
 to a discussion of the merits of the case. 
 
 ' Journal, p. 25; Record, p. 94. 
 
 2 Record, pp. 94, 118, 135, 150-163. 
 
 3 Journal, pp. 38-40. 
 
 ••House Report No. 14, second session Forty-fiith Congress; 1st Ellsworth, p. 52.
 
 662 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 524 
 
 In brief, two elections were held in the State, and the question at issue was as 
 to which, if either, was the legal election. The circumstances of the two elections 
 were thus stated in one of the minority views: 
 
 At a general election held in that State on the 3d day of October, A. D. 1876, votes were cast for 
 a Representative in both the Forty-fourth and Forty-fifth Congresses. A little over 2G,000 votes were 
 polled for the two candidates, which is admitted to be a full vote for the State. The vote for the Rep- 
 resentative for the Forty-fifth Congress, as polled and returned, was a little larger than that for Repre- 
 sentative in the Forty-fourth Congress. There is no reasonable doubt that both political parties did, 
 in fact, cast their full vote at that election for Representative in both Congresses, and that if said elec- 
 tion can be considered as a lawful election for a Member of the Forty-fifth Congress, James B. Belford 
 is entitled to the seat, he having received a majority of the votes cast. As to this there is no dispute. 
 
 Thomas M. Patterson, who received a minority of the votes cast for Representative in the Forty- 
 fifth Congress at the election above mentioned, seems to have claimed, prior to the October election, 
 that no valid election for the present Congress could be held in October, but that the 7th of November, 
 the day fixed by Federal statute (if such statute controlled the matter), was the day on which the elec- 
 tion for the Forty-fifth Congress must be held. He accordingly seems to have taken steps to have an 
 election held on said 7th of November, and on that day 3,829 votes were cast for Representative in 
 this Congress, of which 3,580 were cast for said Patterson and 172 for said Belford, the rest scattering. 
 If said 7th of November was the lawful day for holding said election, and if a real election was then 
 held by the people of Colorado, Thomas M. Patterson is entitled to the seat, he having received nearly 
 all the votes cast. 
 
 A question arose in the course of the discussion as to whether or not the 
 November election could, in view of the small number of votes cast, be considered 
 an election. The majority of the committee held that it could be, saying: 
 
 Objection has been made to the seating of Mr. Patterson, upon the ground that there was a light 
 vote polled at the November election, compared with the vote at the October election. But Mr. Bel- 
 ford can not complain of this, nor can his political supporters, for his name was withdrawn from the 
 canvass three weeks before the November election, and his supporters were advised not to participate 
 in the election. The absence of a contest would naturally result in a light vote. At the recent elec- 
 tion for governor and other State officers in the State of Virginia there were polled in the city of Rich- 
 mond less than 2,000 votes out of an aggregate voting population of 13,000. There was no contest between 
 opposing forces, and a light vote was the result. But no one will seriously contend that this impaired, 
 in the slightest degree, the validity of the election. The law is well settled on this point. Mr. McCrary, 
 in his work on the law of elections, states the rule thus (sec. 448); 
 
 "If an election is held according to law, and a fair opportunity is presented to all voters to partici- 
 pate, those who do not vote are bound by the result." 
 
 In the case of Rex v. Munday (2 Couper, 238), Lord Mansfield, in delivering the opinion of the 
 court, said: 
 
 "Upon the election of a member of Parliament, where the electors must proceed to an election 
 because they can not stop for that day to defer it to another time, there must be a candidate or candi- 
 dates; and in that case there is no way of defeating the election of one candidate proposed but by voting 
 for another." 
 
 In the case of The Commonwealth v. Read (Brightly's Election Cases, 130-131) this rule is recog- 
 nized to the fullest extent. In this case it was the duty of the board of county commissioners, under 
 the statute, to elect a county treasurer. The board consisted of 20 members, all of whom were present, 
 but a controversy arose among them as to the manner of voting, whether viva voce or by ballot, and 
 only one of their number, Abraham Miller, voted by ballot, while the others voted viva voce. The 
 statute required the election to be by ballot, and by virtue of this one vote Read claimed to be elected. 
 The court instructed the jury as follows: 
 
 "In all our public elections those who neglect or refuse to vote according to law are bound by the 
 votes of those who do vote, no matter how small a minority those who do vote are of the whole constit- 
 uency. It is an historical fact that about 40,000 electors who voted for one or the other of the candi- 
 dates for governor at the late election did not cast any vote for or against the amended constitution,
 
 §524 
 
 TIMES, PLACES, AND MANNER OF ELECTION. 663 
 
 and yet that inetrument has, hy a comparatively small minority, become the supreme law of the land. 
 
 The result of our opinion is that if you are satisfied from the evidence that Abraham Miller tendered a 
 vote by ballot for the defendant, and that his vote by ballot was received as such, then has the defend- 
 ant sustained his plea of having been, on the 1st of April last, duly elected county treasurer." 
 
 A former Committee of Elections of this House (Nineteenth Congress, first session), in the case of 
 Biddle and Richard v. Wing (Clark and Hall, p. 507), laid down the rule which has always been 
 recognized. The report in that case held that — 
 
 "The law appoints a particular time and place for the expression of the public voice. When that 
 tune is past it is too late to inquire who did not vote, or the reason why. The only question now to be 
 determined is for whom the greatest number of legal votes have been given." 
 
 The small vote on the 7th of November in Colorado was not the result of intimidation of voters; 
 but, on the contrary, the supporters of one of tlie claimants of the seat voluntarily absented themselves 
 from the election by preconcerted arrangement, and for the very purpose of invalidating the election, 
 so far as it was in their power to do so by their absence. Conceding that there was an honest difference 
 of opinion among the voters of Colorado as to the legal day for the election, some believing the 3d day 
 of October and others the 7th day of November to be the lawful day, yet it will not be pretended that 
 the proper construction of an act of Congress is to be determined by the voters of a particular district. 
 The provisions of law which fix the time or place of holding elections are mandatory. As to the time 
 of election, the day can not be changed even by the consent of all the voters. (McCrary, sec. 114.) 
 
 Ignorance of the proper time or a misunderstanding of the law on the part of a portion of the 
 electors will not deprive those who do understand the law and who do act upon the day prescribed by 
 law from their right to vote and control the election. It is not denied that the election on the 7th day 
 of November was conducted in accordance with the general election law of the State, that all electors 
 who desired to do so were permitted to vote, and that the canvass and result were honestly made and 
 published. 
 
 Mr. J. D. Cox, of Ohio, who filed individual views, held the opposite view: 
 
 In regard to the 7th of November election, the day was not only not the lawful one, as we have 
 above shown, but the State officials had become convinced of this and withdrawn the election procla- 
 mation and notices. 
 
 The condition of the public mind is probably best described by the secretary of state, Mr. Clark, 
 who testifies: 
 
 "Many were doubting the legality of an election for Representative in the Forty-fifth Congress 
 on the 7th day of November, others claiming that it would be a mere matter of form anyway, because 
 there was some kind of an understanding between Mr. Belford and Mr. Patterson that whichever was 
 beaten at the October election would not be a contestant against the other at the November election; 
 others claimed that only a Member to the Forty-fourth Congress could be elected under the constitution 
 and that the general assembly must provide by law for the holding of an election for the Forty-fifth 
 Congress." (Record, p. 16.) 
 
 ■^Tien in the midst of the public uncertainty thus described, in which the confusion was increased 
 by the acts of party committees, prompted by the fear that their opponents would get the start of them, 
 an election was nominally held, in which hardly more than one-seventh of the electors took part, less 
 than one-third, even, of the party claiming the victory, and almost none of their opponents; when in 
 the city of Denver, the capital of the State, and where were the political managers and committeemen, 
 the proportion of votes cast was not larger than in the rest of the State; and when in eight counties there 
 was not even a show of election, it would be doing violence to language and to justice to call the result 
 an expression of the popular will or the formalities which took place an election by the people of the 
 State. 
 
 In the debate on December 13,' this feature of the case was discussed some- 
 what at length, the minority citing the case of Buttz v. Mackey, where after casting 
 out a third of the poll it was decided that the remainder of the votes were not 
 sufficient to constitute an election and the seat was declared vacant. In opposi- 
 
 ' Record, pp. 186, 187.
 
 664 PKECEDENTS OF THE HOUSE OF KEPEESENTATIVES. § 524 
 
 tion the majority cited the West Virginia election cases of 1873 and the vote for 
 Mr. Hagans. H 
 
 But the main issue of the case was as to wluch election was legal. Section 25 
 of the Revised Statutes of the United States provided: 
 
 The Tuesday next after the first Monday in November, in the year eighteen hundred and seventy- 
 six, is established as the day, in each of the States and Territories of the United States, for the election 
 of Representatives and Delegates to the Forty-fifth Congrass; and the Tuesday next after the first 
 Monday in November, in every second year thereafter, is established as the day for the election, in 
 each of said States and Territories, of Representatives and Delegates to Congress com m encing on the 
 fourth day of March next thereafter. 
 
 On March 3, 1875, after the above law had been enacted, the law admitting 
 Colorado as a State was approved. It contained this provision: 
 
 That until the next general census said State shall be entitled to one Representative in the House 
 of Representatives of the United States, which Representative, together with the governor and State 
 and other officers provided for in said constitution, shall be elected on a day subsequent to the adoption 
 of the constitution and to be fixed by said constitutional convention; and until such State officers are 
 elected and qualified under the provisions of the constitution, the Territorial officers shall continue to 
 discharge the duties of their respective offices. 
 
 In accordance with this enabling act the constitutional convention of Colorado 
 adopted the following sections: 
 
 One Representative in the Congress of the United States shall be elected from the State at large at 
 the first election under this constitution, and thereafter at such times and places and in such manner 
 as may be provided by law. 
 
 Sec. 16. The votes cast for Representative in Congress at the first election held under this 
 constitution shall be canvassed and determined in the manner provided by the laws of the Territory 
 for the canvass of votes for Delegates in Congress. 
 
 Section 7 of the Colorado constitution provided: 
 
 A general election shall be held on the first Tuesday of October, in the years of our Lord 1876, 
 1877, and 1878, and annually thereafter on such day as may be prescribed by law.' 
 
 These conflicting provisions left a doubt as to when the election of 1876 for 
 Congressman should be held. The majority report thus sets forth what was done: 
 
 The following facts are established beyond controversy: 
 
 1. That the secretary of state did, on the 31st day of August, 1876, issue his proclamation (printed 
 Record, p. 138) notifying the people that there would be an election on the 3d day of October, 1876, 
 for State officers and for "one Representative for the unexpired term, Forty-fourth Congress;" that 
 this proclamation made no mention of the election of a Representative in the Forty-fifth Congress, 
 and that the sheriffs of the several counties of the State promulgated like proclamations and notices. 
 
 2. Thatonthel4thdayof September, 1876, the secretary of state issued his proclamation (printed 
 Record, p. 254) giving notice of an election to be held November 7, 1876, for a Representative from 
 the State at large for the Forty-fifth Congress; that no other officers were to be elected at such election, 
 and that the sheriffs of the several counties issued like notices in their several counties. 
 
 3. That these proclamations by the secretary of state and the sheriffs of the several counties 
 were the only notices published by legal authority or otherwise relating to said elections until after 
 the election on the 3d day of October. 
 
 4. That the names of both contestant and contestee were printed generally upon the tickets used 
 at the election on the 3d day of October for both the Forty-fourth Congress (unexpired term) and the 
 Forty-fifth Congress; but there was no agreement between the respective claimants or their friends 
 
 ' This provision of the constitution appears in full in the debates. Record, p. 147.
 
 § 524 TIMES, PLACES, AND MANNER OF ELECTION. 665 
 
 as to whether the 3d day of October was the day prescribed by law for holding the election for a Repre- 
 sentative in the Forty-fifth Congress. 
 
 5. That on the 10th day of October, one week after the election on the 3d day of that month, J. C. 
 Wilson, chairman of a State political committee favoring the election of Mr. Belford, issued an address 
 (Record, pp. 45-47) calling on the friends of Mr. Belford to prepare by registration and otherwise for 
 the election on the 7th day of November. 
 
 6. That on the 16th day of October the secretary of state issued a proclamation withdrawing his 
 proclamation of September 14, which gave notice of the election on the 7th of November. 
 
 7. That on the 14tli day of October the said J. C. Wilson, on behalf of Mr. Belford, withdrew 
 his name from any further candidacy for Congress, claiming that he had been elected on the 3d day of 
 October to the Forty-fifth Congress, as well as to the unexpired term of the Forty-fourth Congress, and 
 advised Mr. Belford's friends to take no part whatever in the election on the 7th day of November. 
 
 8. That the votes cast at the election on the 7th day of November were counted by the proper 
 oflBcers in 11 counties and transmitted to the secretary of state, but were not canvassed by that officer 
 or by any State canvassing board; that in the other 15 counties of the State no abstracts of the votes 
 cast were sent to the secretary of state by the county clerks; but the stipulation filed by the parties 
 to the contest, and above set forth, shows the true result of the votes actually cast in the whole State. 
 
 A diversity of opinion existed in the committee and the House as to which 
 day the law designated for the election. The majority contended that November 7 
 was the legal day. The minority views, presented by Mr. John T. Wait, of Connec- 
 ticut, contended that the October election was the legal one, while Mr. Cox con- 
 tended that neither was legal. 
 
 The majority admitted that the failure of the proper officer to give notice 
 of the election of a Congressman in October did not invahdate the election, since 
 it was settled by authorities (Cooley and McCrary) "that where the time and place 
 for holding an election are fixed by statute, any voter has a right to take notice 
 of the law and to deposit his ballot." 
 
 Also the majoritj' held that the failure to canvass the votes and declare the 
 result "does not invalidate an election otherwise regular and valid." 
 
 This therefore left as the important question the determination of the day 
 fixed by law. 
 
 The majority held that the enabhng act did not repeal the statute fixing gen- 
 erally the day of election in all the States, citing authorities to show the danger 
 of the doctrine of repeal by imphcation. The law of Congress was the supreme 
 law of the land, and Congress having, in the exercise of its constitutional power, 
 fixed the time for holding the election for Representative in the Forty-fifth Congress 
 in all the States, from the moment of the passage of the act of Congress it became 
 and was engrafted upon the statutes of every State in the Union, and it required 
 no auxiliary State legislation to give effect to the national statute. But the election 
 laws of the several States which fixed the places and prescribed the manner of such 
 elections were not afl'ected, altered, or repealed; and the national statute fixing 
 the time and the State statutes fixing the places and prescribing the manner of hold- 
 ing the Congressional elections, formed a complete election machinery for the 
 election of Representatives in Congress. 
 
 The schedule to the Colorado constitution (sec. 1 ) provided that all laws in force 
 in Colorado at the adoption of the constitution should remain in force until altered 
 or repealed by the legislature. It was not disputed that there was a well-defined 
 and perfect code of election laws in force in Colorado at the time of the adoption
 
 666 PRECEDENTS OF THE HOUSE OF BEPEESENTATIVES. § 524 
 
 of the constitution. In pursuance of these laws, the State election and the election 
 for Representative in Congress for the unexpired term of the Forty-fourth Con- 
 gress were held on the 3d day of October, 1876, and Mr. Belford did not question 
 the vahdity of such laws, for he claimed his own election on the 3d of October, 1876, 
 to this Congress, by virtue of an election held in pursuance thereof. These State 
 laws provided fully for the places and prescribed the manner in which " all general 
 and special elections" should be held in the State. There were, then, in force in 
 the State of Colorado on the 7th day of November, 1876, laws providing a full, 
 complete, and perfect election machinery for electing a Representative to the 
 Forty-fifth Congress — the time fixed by Congress, and the places and manner pro- 
 vided by the State statutes. 
 
 The minority, after quoting section 16 of the Colorado constitution, say: 
 
 That the constitutional convention assumed it had full jurisdiction of the question and intended 
 to exercise it the last-quoted section makes apparent; it continued the election laws of the Territory 
 to the election in October and no further, and by the provisions of the constitution fixing the time 
 of the assembling of the first legislature of the State and its methods of enacting laws, it was impossible 
 for it to provide election laws for the first Tuesday after the first Monday in November (see constitution 
 of Colorado); the inference follows it assumed a Representative to this Congress was to be elected in 
 October, 1876; otherwise it intended not to make provision for such an election. 
 
 The minority contended, on another point, that the action of the people of 
 Colorado settled the question: 
 
 But the State of Colorado and her people alone are interested in this question. She is entitled 
 to representation, and the proper and only function of the House is to see that, within the principles 
 of representation underlying the legislative branch of our Government, she has her constitutional right. 
 And upon this complex question — for we suppose it must be complex, since the views of members 
 of your committee are so diverse — her people have put a construction. 
 
 We suppose it to be well settled in cases of the doubtful construction of a statute involving the 
 rights of the people, and only their rights as distinguished from individual rights, the adoption of a par- 
 ticular construction with entire unanimity has never been disturbed by a power only interested to pre- 
 serve the rights of the State; certainly never when the only possible injury to the constituency is in 
 the political associations of the individual who shall represent the State if that construction shall remain 
 unreversed. And we affirm most confidently the people of Colorado have construed the provisions 
 hereinbefore discussed in accordance with our views. 
 
 The majority considered that the constitution of Colorado intended to fix 
 only the day for the election of the first Congressman, and it was contended in 
 debate that this was as far as a constitutional convention might go.' The minority 
 views, however, contended that the convention might fix also the times of other 
 elections, citing the case of Shiel v. Thayer. This also was urged in debate.^ 
 
 The majority concluded that Mr. Patterson was entitled to the seat and pre- 
 sented a resolution so declaring.^ 
 
 The minority presented a resolution declaring Mr. Belford entitled to the seat. 
 
 The report was debated at length on December 12 and 14.^ On the latter day 
 the House disagreed to the minority resolution, yeas 109, nays 126. The proposi- 
 
 ' Record, p. 160. 
 ' Record, p. 180. 
 
 ' Congress passed a law to remove any ambiguity as to the next election in Colorado. Second 
 session Forty-fifth Congress, Record, pp. 4082, 4083; 20 Stet. L., p. 112. 
 ♦Record, pp. 145, 178-199.
 
 S 525 TIMES, PLACES, AND MANNER OF ELECTION. 667 
 
 tion declaring that there had been no legal election was decided in the negative, 
 yeas 116, nays 117. Then the resolution of the majority was agreed to, yeas 116, 
 nays 110. Mr. Patterson was then sworn ia.' 
 
 525. The Iowa election case of Holmes, Wilson, Sapp, and Carpen- 
 ter in the Forty-sixth Congress. 
 
 An instance after the enactment of the law regulating election con- 
 tests wherein a contest was institvited by petition. 
 
 An election for Congressmen not called or sanctioned by State offi- 
 cers, and participated in by a fraction merely of the people, would not 
 be valid even although held on the legal day. 
 
 Discussion of the force to be given by the House to a construction 
 by the proper State officials of a State law fixing the time for electing 
 Congressmen. 
 
 The constitution of a State may not control its legislature in fixing, 
 under the Federal Constitution, the time of election of Congressmen. 
 
 Reference to practice of agreeing to questions of fact in contested 
 election cases as liable to abuse. 
 
 An instance wherein an elections committee held certain testimony, 
 which was not legal in form, as an offer of proof. 
 
 On December 21, 1880,' Mr. Walbridge A. Field, of Massachusetts, from the 
 Gonmiittee on Elections, submitted a report in the Iowa election cases raised 
 by the petitions of J. C. Holmes and John J. Wilson. All of the committee but 
 one concurred in the conclusions of this report, but four of the ten stated that 
 they did not concur in all the legal opinions stated in the report. Mr. Walpole G. 
 Golerick, of Indiana, filed minority views dissenting from both the reasoning and 
 the conclusion. 
 
 The salient facts underlying the question are included in the following extract 
 from the minority views: 
 
 The Constitution of the United States declares that "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 choos- 
 ing Senators." (Art. I, sec. 4.) 
 
 Under this provision of the Constitution the legislature of the State of Iowa was authorized and 
 required to prescribe the time, place, and manner of holding elections in that State for Representatives 
 in Congress, subject to the power of Congress to alter at any time such regulations. By virtue of this 
 provision of the Constitution the legislature of that State did enact a law prescribing "the time, place, 
 and manner" of holding elections for Representatives, and designated the second Tuesday in October 
 as the time for the holding of said election. Subsequently, in February, 1872, Congress, exercising the 
 power conferred upon it by the Constitution, altered the regulations so prescribed by the legislature 
 of Iowa, as to the time designated for the holding of said election, by the following enactment: 
 
 "The Tuesday after the first Monday in November, in the year 1876, is established as the day 
 in each of the States and Territories for the election of Representatives and Delegates in the Forty- 
 fifth Congress, and the Tuesday next after the first Monday in November in every second year there- 
 after is established as the day for the election in each of said States and Territories of Representatives and 
 Delegates to the Congress commencing on the 4th. day of March thereafter." (Sec. 25 Rev. Stat., U. S., 
 1878.) 
 
 'Journal, pp. 113-116. 
 
 * Third session Forty-sixth Congress, House Report No. 19; 1 Ellsworth, p. 322.
 
 668 
 
 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 § 525 
 
 Afterwards Congress modLfled said law, as follows: 
 
 "That section 25 of the Revised Statutes, prescribing the time for the holding elections for Repre- 
 sentatives to Congi-ess is hereby modified so as not to apply to any State that has not yet changed its 
 day of election, and whose constitution must be amended in order to effect a change in the day of the 
 election of State officers in said State." (Sec. 6, ch. 130, acts 2d sess. 43d Cong., approved Mar. 3, 1875.) 
 
 The question presented to us is, Does the State of Iowa come within the exception named in said 
 act, as modified? Must her constitution be amended "in order to effect a change in the day of the 
 election of State officers in said State "? 
 
 The constitution of Iowa provides that "The first election for secretary of state, auditor, and 
 treasurer of state, attorney-general, district judges, members of the board of education, district attorneys. 
 Members of Congress, and such State officers as shall be elected at the April election in the year 1857, 
 * * * shall be held on the second Tuesday of October, 1858." (Sec. 7, art. 12.) 
 
 This language of the constitution gave rise to a doubt as to whether the con- 
 stitution would have to be amended in order to effect the change prescribed by the 
 law of Congress. 
 
 At the general election of October 8, 1878, in Iowa, Messrs. William F. Sapp 
 and Cyrus G. Carpenter were elected Representatives, respectively, from the Eighth 
 and Ninth districts of Iowa, received their certificates from the governor, and were 
 seated in the House. 
 
 But Mr. J. C. Holmes, in the Eighth district, and Mr. John J. Wilson, in the 
 Ninth district, offered themselves for election on November 5, 1878, claiming that 
 it was the legal election day, according to the constitution and laws of Iowa. 
 
 In Mr. Holmes's district votes were cast in four townships, and the report thus 
 summarizes : 
 
 The result is, in the case of Holmes, that the papers, if taken to be true statements, show that 
 in these four townships certain voters got together and went through the forms of an election for Rep- 
 resentative in Congress; that in all 171 votes were cast, of which Holmes received 162, Sapp 2, and Chap- 
 man 6, and there was 1 blank; and that these votes were never canvassed by any State officers and 
 no certificate of election issued. In the Congressional Directory, which refers to the election held 
 in October, Sapp is put down as receiving 15,343 votes, against 7,453 votes for Keatley, Democrat, 
 and 7,760 votes for Hicks, National, in all 30,556 votes. 
 
 It does not appear that the voters of this Representative district understood generally that an 
 election was to be held on the 5th day of November, being the Tuesday next after the first Monday of 
 November, for Representative in Congress, or that any attempt would be made by anybody to hold 
 such an election or that any person had notice that any such election would be held, except the persons 
 voting. 
 
 It does not appear that the governor issued his proclamation for any such election, which by 
 section 577 of the code of Iowa he is required to issue thirty days before any general election, "desig- 
 nating all the offices to be filled by the votes of the electors of the State, or by those of any Congres- 
 sional, legislative, or judicial district, and transmit a copy thereof to the sheriff of each county." 
 
 It docs not appear that the sheriff gave "at least ten days' notice thereof, by causing a copy of 
 such proclamation to be published in some newspaper printed in the county, or if there be no such 
 paper, by posting such a copy in at least five of the most public places in the county," as required by 
 section 578 of the code. 
 
 It does not appear that any registry of voters was established, or that any of the regularly appointed 
 officers, except one township clerk, took any part in this election, or that the board of supervisors of 
 the county canvassed the returns and made abstracts thereof, as provided in section 635 of the code of 
 Iowa, or that any abstracts thereof were forwarded to the secretary of state or filed by the county 
 auditor (section 637 of code), or that any canvass was made by the executive council (sections 651, 
 652, code), or that any certificate of election was issued under the seal of the State (section 653 of code). 
 So far as appears this might have been an election held by a few persons in only four townships, without
 
 § 525 TIMES, PLACES, A^TD MANNER OF ELECTION. 669 
 
 any knowledge on the part of anybody except themselves that any attempt to hold an election would 
 be made, and without any recognition at all by the authorities of the State. 
 
 It was stated in argument that Mr. Holmes had his ballots secretly printed in St. Louis, Mo., and 
 that the election was in fact a secret to nearly all the electors of the district, but as the committee have 
 not been authorized to take testimony, the undersigned have considered this as hearsay, and have 
 not regarded it. 
 
 In ilr. Wilson's district the result is thus summarized: 
 
 If the statements in these papers are taken to be true there were votes cast in twelve townships 
 on the 5th of November, 1878, for Representative in Congress to the number of 357, of which Wilson 
 received 260 and Carpenter 97. In the Congressional Directorj-, which refers to the October election, 
 Carpenter is put down as receiving 16,489 votes, against 1,202 for W. H. Brown, Democrat, and 12,338 
 votes for L. Q. Hoggatt, National; in all, 30,029 votes. 
 
 There is the same absence of any evidence of action on the part of the authorities of the State in 
 making proclamation and giving notice of the election and canvassing the votes cast after the elections 
 as in Holmes's case, and there is no evidence whatever that it was generally understood that an election 
 for Representative in Congress was to be held on the 5th day of November, or that any attempt was to 
 be made to hold any election on that day, or that it was known to anybody except the persons voting 
 that any such election was to be held. The papers do show that the governor of Iowa was ad^nsed by 
 the persons named that such an election could lawfully be held only on the second Tuesday of October. 
 
 Several questions arose from this dispute as to the date of election and the 
 proceedings resulting therefrom: 
 
 (1) Both Holmes and Wilson petitioned, not against the election of Messrs. 
 Sapp and Carpenter, but that such action might be taken as would give them their 
 legal rights as Representatives elected in November. Their petitions were referred 
 to the Committee of Elections. That conmiittee, after discussing its own powers, 
 said: 
 
 The power of the House to judge of the elections, returns, and qualifications of its members is 
 ample, and it can proceed in its own way; a committee of the House has such power as is given it. 
 
 The importance of election cases demands that the testimony should be taken on notice to all 
 persons interested, with the right on their part to cross-examine witnesses and to exhibit testimony 
 in reply, so far as their rights may be affected by the inquiry-. 
 
 This may be done under or after the analogj' of the statute relating to contested elections, or by 
 simunoning witnesses before the committee, or in any other manner the House may direct. 
 
 None of the certificates or affidavits found in the papers in a judicial court wovdd prove themselves 
 or be judicially recognized except the certificates of the sitting Members. 
 
 The conmiittee sent notice of the pendency of these petitions to the Members in Congress from 
 the State of Iowa, and some of them appeared specially, without acknowledging by their appearance 
 that their rights could be determined under these petitions. The undersigned agree with the remainder 
 of the co mm ittee that chapter 8 of the Revised Statutes of the United States, relating to contested 
 elections, has no direct application to a contest between persons claiming under elections held on differ- 
 ent days, and could only be made applicable by a resolution of the House authorizing such parties to 
 proceed after the analogy of the statute and fixing in the resolution a time from which the first thirty 
 days should begin to run. 
 
 The undersigned think that the words ' ' such election " in the third line of section 105 of the Revised 
 Statutes mean an election contested, and a person claiming to be elected on a subsequent day might 
 not be elected until more than thirty days after the result of the first election had been determined, 
 and might not be able under the statute to give any notice at all; but they think that the provisions 
 of that chapter or some analogous provisions ought in general to be made applicable to any contest in 
 which the rights of sitting Members are involved, or else that the Committee on Elections should be 
 authorized to summon persons and take testimony, with notice to the sitting members, and perhaps, in 
 a case like this, to the State of Iowa, to appear and by testimony and arguments be heard. The
 
 670 PEECEDENTS OF THE HOUSE OF KEPEESENTATIVES. § 525 
 
 petitions in these cases should not, therefore, be dismissed merely because they do not conform to the 
 statutes. 
 
 The agreement of parties has sometimes been received as to disputed questions of fact, but it has 
 always been held that this should be done with great caution, as these are not merely contests between 
 the parties, but the rights of the people of the district and of the State and of the people of the United 
 States are involved and can not be agreed away. 
 
 In these cases no testimony has been taken by the committee; there are no parties and no agreement 
 of parties. Certain facts have been stated in argvunent for and against the cases of the petitioners, and 
 have been conceded in argument by counsel, but the undersigned do not feel at liberty to consider 
 them as agreed facts. 
 
 It was suggested to the coimsel of the petitioners that if they proposed to prove any other facts 
 than those set forth in their papers, they should state them; but there was no intimation that they desired 
 to ofier evidence of any other facts than those alleged in the papers. 
 
 In determining what should be done with the petitions, the undersigned were of the opinion that 
 the affidavits and certificates accompanying the petitions should be regarded as offers of proofs; that is, 
 statements by the petitioners of the facts which they propose to prove; and that the committee should 
 consider whether, if all these statements of facts were taken to be true, the petitions could be main- 
 tained; that if they could not, it would not be worth while to ask this House for authority to take testi- 
 mony on the subject, or to take any other action than to dismiss the petitions. 
 
 (2) After reviewing the facts as to tlie alleged November elections, the report 
 says: 
 
 The undersigned think that it is impossible to hold on these alleged facts, if proved, that either 
 Mr. Holmes or Jlr. Wilson has been duly elected Representative in Congress, whether the Tuesday after 
 the first Monday of November or the second Tuesday of October be the lawful day for such an election, 
 and that there is no need of taking testimony in these cases, because the facts alleged, if proved, would 
 not entitle either of these gentlemen to a seat, and that the committee should be discharged from any 
 further consideration of these petitions; and that in coming to this conclusion it is not necessary to 
 decide whether the authorities of the State were right or not in determining that the legal day of election 
 was the 8th day of October, because if it be assumed to be true that the 5th day of November was the 
 legal day of election, the election was not held under the sanction of the authorities of the State of Iowa, 
 was not generally known so far as appears, and was not participated in by such numbers of the people 
 of Iowa that on any grounds this House would be justified in declaring Mr. Holmes or Mr. Wilson entitled 
 to a seat. 
 
 These petitions, as has been said, can not be considered as petitions of citizens or voters of Iowa 
 asking that the whole election in Iowa for Representatives in Congress in October shotild be declared 
 void. 
 
 They are not drawn with any such intention and pray no such relief. So far as appears, if Holmes 
 and Wilson can not be seated they are content as citizens of Iowa that the existing delegation of Iowa 
 should retain their seats. 
 
 If resolutions should be offered in the usual form declaring either Mr. Holmes or Mr. Wilson entitled 
 to a seat, the undersigned think that they should be decided in the negative. 
 
 The minority views reach the same conclusion : 
 
 While, in my judgment, the failure of the governor to issue a proclamation, and the omission of 
 other officers to perform their duties would not alone invalidate the election, as their neglect or refusal 
 to comply with their duties should not result in depriving the people of the right to elect their officers 
 at the time fixed by law for that purpose, yet it is quite evident from the very small vote cast that the 
 voters of the district generally abstained from voting or taking any part whatever in said election, and 
 it is fair to assume that the cause of their failure to do so is alone attributable to the fact that they 
 believed that the election which had been held in October for Representative to Congress was authorized 
 by law and legal, and that said subsequent election was unauthorized and illegal, and by reason of 
 this belief, so created, they failed to participate in said election and thereby the wUl of the people was 
 not fairly or fully expressed at the election held in November, and therefore I do not think that the 
 claimants who base their right to the seats in dispute tinder and by virtue of said election are entitled 
 to the same.
 
 § 525 TIMES, PLACES, AND MANNER OF ELECTION. 671 
 
 (3) The majority further held that under the petitions in the present case the 
 committee might not investigate the validity of the October election: 
 
 And if resolutions should be offered declaring Mr. Sapp and Mr. Carpenter entitled to their seats, 
 that they should be decided in the affirmative, because nothing as yet has appeared to invalidate the 
 title by which they now hold them; and that as a decision of the validity of the election of Messrs. Sapp 
 and Carpenter, or perhaps of all the delegation from Iowa, is not necessary, in the opinion of the under- 
 signed, in order to make a proper disposition of these petitions, a decision against them or against the 
 whole delegation of Iowa should not be made without formal notice to the Representatives of Iowa, and 
 perhaps to the State of Iowa, and after taking testimony of such facts and circumstances surrounding 
 the election on the second Tuesday of October as might properly be considered in construing the statutes 
 and laws relating to the legality of an election on that day. 
 
 Mr. Colerick, having concluded that the law and constitution of Iowa were so 
 worded that the legal time of election was in November, said that it followed that 
 the seats of Messrs. Sapp and Carpenter were vacant, and he proposed resolutions 
 declaring the vacancies. 
 
 (4) The majority, while deeming it unnecessary under their view of the case 
 to investigate the legaHty of the October election, still discussed the question, since 
 other opinions had been expressed. In this discussion the following questions 
 appeared : 
 
 (a) The report points out that the House might, if it chose, take action as to 
 Messrs. Sapp and Carpenter independently of the petitions. But it appeared that 
 both political parties and the State officials, with the acquiescence of the great mass 
 of the people, had decided that the laws and constitution of Iowa were of such 
 tenor as to make the October election the legal one. These facts were undoubted, 
 although there might be a question as to whether they were properly before the 
 committee. They were of great significance, for — 
 
 It is the doctrine of the Supreme Court of the United States that decisions of the highest judicial 
 coiui; of a State upon the meaning of the State laws and constitution, when its decisions are uniform, 
 are binding on that coiut. 
 
 The construction of the Constitution and laws of the United States belongs of course to the courts 
 of the United States in any controversy before those courts; but in considering whether the laws and 
 constitution of a State conflict with the laws and Constitution of the United States as construed by the 
 courts of the United States, those courts take the laws and constitution of the State as construed by 
 the courts of the State when their decisions are imiform. 
 
 The undersigned are not prepared to hold that the decision of the highest authority of a State upon 
 the meaning of its constitution in reference to whether the day of the election of State officers is fixed 
 by that constitution or not, so far as it is material in determining the legality of an election of Represent- 
 atives in Congress, is absolutely binding upon this House. 
 
 In a report from the Committee on Elections, adopted by this House April 11, 1871, in the matter 
 of the Tennessee election (Digest of Election Cases, compiled by J. M. Smith, p. 1), the committee say. 
 
 'It is a well-established and most salutarj- rule that where the proper authorities of the State 
 government have given a construction to their own constitution or statutes, that construction will be 
 followed by the Federal authorities. This rule is absolutely necessary to the harmonious working of 
 our complex Government, State and national, and your committee are not disposed to be the first to 
 depart from it." 
 
 We are not disposed to be the first to depart from it, and we certainly think that such a decision 
 made in good faith and acquiesced in at the time by the people of the State, and followed by a fuU 
 and fair election, should not be overthrown or questioned except for the gravest reasons, foimded on 
 an undoubting conviction that it was plainly an error, and that the error had worked some substantial 
 injury.
 
 672 PKECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 525 
 
 Mr. Golerick, in the minority views, denied this reasoning: 
 
 While it is true that the Federal courts have repeatedly held that the construction placed upon 
 the constitution and laws of the respective States by the latest utterances of the highest judicial tribunals 
 thereof, will be respected and adopted by the Federal courts (7 Wallace, 523; 9 Wallace, 35; 14 Howard, 
 438; 23 Wallace, 108), yet they have never, so far as I am aware, extended the limits of this rule so as 
 to embrace decisions rendered by any other than the judicial department of a State. It is not claimed 
 that the highest or any other judicial tribunal of the State of Iowa has given a construction to these 
 provisions if her constitution, and in the absence of such decision we are left unrestrained to place our 
 own construction thereon. 
 
 (&) As to the sufficiency of a provision in a State constitution prescribing the 
 time of electing Representatives in Congress, the majority report says: 
 
 Section 4, article 1, of the Constitution of the United States confers power on the legislatures of 
 the States to prescribe the time of electing Representatives in Congress in the absence of any controlling 
 regulations by Congress. 
 
 The provisions of the constitution of a State can not take this power from the legislature of a State 
 and Congress can not take from a State the right to fix either by its constitution or by its laws the day of 
 electing State officers. 
 
 The object of section G, chapter 130, of the acts of 1875, was to prevent compelling any State against 
 the will of its legislature to have two elections on different days, one for Representatives in Congress 
 and one for State officers, or else to change its constitution. 
 
 We are therefore of opinion that the governor of Iowa adopted the right construction of the con- 
 stitution of that State in deciding that it did fix the day of election of State officers (with the exception 
 perhaps of the attorney-general), whether those State officers were to be elected on the odd or even 
 numbered years, so that it would require a change in that constitution to elect State officers (who were 
 required by the State constitution to be regularly elected by the people in the year 1878) on the Tuesday 
 next after the first Monday in November, and that the election of Representatives in Congress, held in 
 accordance with the laws of the State on the second Tuesday in October, 1878, was held on the day on 
 which alone it could lawfully have been held. 
 
 In reaching this conclusion we disregard altogether the provision for the election of Members of 
 Congress found in section 7, article 12, of the constitution of Iowa. That provision may tend to show 
 that it was the intention of the people of Iowa that Members of Congress should be elected on the second 
 Tuesday in October of the even numbered years not Presidential, but the time of electing Members of 
 Congress can not be prescribed by the constitution of a State, as against an act of the legislature of a State 
 or an act of Congress, and the amendment to the twenty-fifth section of the Revised Statutes of the 
 United States is confined to States whose constitutions fix the day of election of State officers in said 
 State. 
 
 The only apparent exception has been in the constitutions which have been formed by Territories, 
 and with which such Territories have been admitted into the Union as States; but this, if it be a valid 
 exception, does not prove that Territories have the right by a constitution to fix the time for electing 
 Representatives in Congress when they become States; but the authority of these provisions rests on 
 the sanction and adoption of them by Congress in admitting such Territories as States with constitutions 
 containing such provisions. 
 
 (c) As to the interpretation of the constitutional provision of Iowa, the major- 
 ity concluded that it would need to be amended in order to effect a change of the 
 election day, and so the law of Congress fixing elections in November would not 
 apply in Iowa. Mr. Colerick took the opposite view. 
 
 In accordance AV'ith their conclusions the majority reported the following: 
 
 Resolved, That the petitioner, J. C. Holmes, in the matter of his petition asking to be admitted to a 
 seat in the Forty-sixth Congress as a Representative from the Eighth Congressional district of the State of 
 Iowa, have leave to withdraw his petition. 
 
 And also a similar resolution applying to Mr. Wilson.
 
 § 526 TIMES, PLACES, AND MANNER OF ELECTION. 673 
 
 On January 31, 1881,' these resolutions were agreed to in the House without 
 debate or division. 
 
 526. The election case relating to Delegate Wilcox, of Hawaii, in 
 the Fifty-sixth Congress. 
 
 Failure of a Territorial legislature to prescribe specially time, place, 
 and manner of electing a Delegate did not invalidate an election actu- 
 ally held. 
 
 Instance of the impeachment of the election and qualifications of a 
 Delegate through proceedings instituted by a memorial. 
 
 Instance of examination by a House Committee of charges of bigamy 
 and treason against a Delegate. 
 
 The organic act of Hawaii fixed the qualifications of the Delegate 
 therefrom. 
 
 A memorial preferring charges against Mr. Robert W. Wilcox, Delegate from 
 Hawaii, having been referred to the Committee on Elections No. 1, at a time after 
 the Delegate had taken the oath, that committee on March 1, 1901,^ submitted a 
 report.^ The charges were three: (1) that he was guilty of bigamy; (2) that he was 
 guilty of treason against the United States, and (3) that there had been no valid 
 election for Delegate from Hawaii. 
 
 1 . As to the first charge the committee found that Mr. Wilcox had married his 
 second wife under an erroneous impression that he had secured a valid divorce from 
 his first wife. But as there was no pretense that he had lived with the two women at 
 the same time or held himself out as the husband of two women the committee did 
 not conceive that a question of ineligibility was presen*^ed. 
 
 2. In regard to the charge of treason the committee found: 
 
 On the 7th of July, 1898, Congress adopted a joint resolution to provide for annexing the Hawaiian 
 Islands to the United States. The organic act providing for a system of government for these islands was 
 not passed until April 30, 1900. Early in 1S99 Wilcox wrote several letters to an Italian friend of his in 
 Washington, and one letter of introduction of this friend to certain representatives of the Philippines 
 then in Washington, in which he gave expression to unpatriotic and treasonable propositions. In one of 
 these letters he told the Philippine representatives that he was ready to give his services to their country 
 and ready to obey orders to go to their country and fight for the independence of their people. 
 
 Yotur committee has carefully considered the duty of the House in this relation, and after full 
 discussion and consideration are clearly of opinion that under the circumstances of the case no action 
 ought to be taken by the House. 
 
 Wilcox was one of the adherents of Queen Liliuokalani, and therefore of the "royalist party." 
 Against his will, and in spite of his objection and the objection of his associates, the monarchy was 
 overthrown and a republic created. No doubt this revolution was in the interest of civilization and good 
 government, but the attitude of those who believed in the monarchy and whose government was over- 
 thrown was not to be scrutinized with the same care as if those whose conduct was questioned could 
 justly be compelled to show instant allegiance to the new governing power. 
 
 When in 1898 the Kepublic of Hawaii proposed to the United States terms of annexation, which 
 were accepted by the joint resolution of .Tuly 7, 1898, it is not strange that those who were opposed to the 
 Republic and hoped for the restoration of the monarchy should be unwilling to yield allegiance to the 
 power which, aa it seemed to them, had forcibly assumed jurisdiction of their country. At the time 
 
 ' Record, p. 1074. 
 
 - Second session Fifty-sixth Congress, House Report No. 3001; Rowell's Digest, p. 601. 
 
 ^The report was drawn by Mr. R. W. Tayler, of Ohio. 
 
 5994— VOL 1—07 43
 
 674 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 526 
 
 when Wilcox wrote his treasonable letters the only government which the Hawaiian people had was that 
 which the Republic of Hawaii had set up, supplemented by the resolution of 1898, which merely trans- 
 ferred nominal sovereignty to the United States. WTien in 1900 Congress provided a system of govern- 
 ment for the Hawaiian people at once just and generous, by the orderly operation of which the Hawaiian 
 people, on a full and representative vote, elected Wilcox as their Delegate in Congress, it was natural 
 that a revolution in public sentiment should occur. 
 
 A Territorial Delegate has no legislative power; he can in no respect influence the legislation 
 applicable to the States; he has no power to be feared, and is indeed merely the agent and spokesman of 
 his people. Such being the case, in view of the changed — the radically changed — political relations 
 between the Hawaiian people and the United States, resulting from the act of April, 1900, we do not 
 think that the conduct of a native of the Hawaiian Islands a year or more prior to the adoption of that 
 organic act, however improper it may have been, abstractly viewed, ought to deprive the Hawaiian 
 people of the representative whom they have solemnly sent. 
 
 3. The objection that the election was not vaHd was foimd by the committee to 
 be technically of some force : 
 
 The organic act passed April 13, 1900, has this provision: 
 
 "Sec. 85. That a Delegate to the House of Representatives of the United States, to serve during 
 each Congress, shall be elected by the voters qualified to vote for members of the house of representatives 
 of the legislature; such Delegate shall possess the qualifications necessary for membership of the senate 
 of the legislature of Hawaii. The times, places, and manner of holding elections shall be as fixed by 
 law. The person having the greatest number of votes shall be declared by the governor duly elected, 
 and a certificate shall be given accordingly. Every such Delegate shall have a seat in the House of 
 Representatives, with the right of debate but not of voting." 
 
 It is not clear that the expression "shall be as fixed by law" does not mean as fixed by the law 
 then in force in the Hawaiian Islands. This organic act reenacts all of the election laws of the Republic 
 of Hawaii, in so far as they are applicable to the conditions then existing, or made to exist, by the organic 
 act itself. Under the Hawaiian system of government the only officials elected were the representatives 
 and senators to the legislature of the Republic. For the election of these senators and representatives 
 full and complete machinery was devised and had been in operation up to the time of the joint resolution 
 annexing the islands. Of course they made no provision for the election of a Delegate to Congress, nor 
 was any additional legislation had, except that which is contained in section 85 of the act of Congress 
 above referred to. With no machinery of election except that provided by the laws of the Republic of 
 Hawaii and section 85 above quoted, it is claimed that no valid election coxild be held. In this view 
 we do not concur. 
 
 Previous to the election of November, 1900, the proper officers issued a proclamation calling for the 
 election of a Delegate to the United States Congress, as well as for the election of representatives and 
 senators to the Territorial legislature. Separate ballot boxes were provided, tickets were printed, and 
 the whole machinery set in perfect motion for the election of the Delegate to Congress. The same pre- 
 cautions were observed and the same kind of machinery of election provided for the election of Delegate 
 as for representative and senator in the Territorial legislature. Practically all of the people voted, and 
 quite as many voted for Delegate to Congress as for representatives and senators in the Territorial legisla- 
 ture. There was a full and free expression of the popular will, under the theory that the Territory was 
 entitled to send a Delegate to Congress, and as a result of that full and free popular expression, Wilcox 
 was chosen by a considerable plurality. He comes here, therefore, as the agent of his people, chosen 
 apparently under the forms of and with all the solemnity which surrounds the most carefully conducted 
 election, and we think he ought to be permitted to retain his seat as their representative in the capacity 
 of a Delegate. 
 
 We are not uninfluenced, in arriving at this conclusion, by a consideration of the fact that the people 
 who send him here are to a large extent unfamiliar with the methods, the policy, and the inspiration, of 
 a free government. 
 
 The report was not acted on by the House, and Mr. Wilcox of course retained 
 his seat.
 
 § 527 TIMES, PLACES, AND MANNER OP ELECTION. 675 
 
 527. The election case of laukea v. Kalanianaole from the Territory 
 of Hawaii in the Fifty-ninth Congress. 
 
 Instance in the absence of specific law of an election of a Delegate 
 on rules based on analogy to the law providing for election of other 
 Territorial officers. 
 
 Ballots which were by error cast with a numbered stub still attached 
 were deducted from the poll as bearing a distinguishing mark forbidden 
 by law. 
 
 An informal removal of a numbered stub by election officers from 
 ballots erroneously cast with such illegal distinguishing mark did not 
 save the ballots from rejection by the House. 
 
 On March 26, 1906,^ Mr. Michael E. Driscoll, of New York, from the Committee 
 on Elections No. 3, submitted the report of the committee in the case of laukea v. 
 Kalanianaole from the Territory of Hawaii. 
 
 The report sets forth at the outset the following conditions: 
 
 The Territory of Hawaii is divided into 6 election districts and 69 election or voting precincts. 
 The said election took place on the 8th day of November, 1904. Thereafter the votes cast at said election 
 for the office of Delegate to Congress were counted and canvassed, and as the result of said count and 
 canvass Hon. Jonah K. Kalanianaole, the contestee, was declared to have received 6,833 votes, Hon. 
 Curtis P. laukea, the contestant, to have received 2,868 votes, and the Hon. Charles Notley, the condidate 
 of the Home Rule party, to have received 2,289 votes, making a total of 11,990 votes cast for this office, 
 and the governor of the Territory issued to the contestee herein the certificate of election. 
 
 The notice of contest was served by the contestant on the contestee within the time specified by 
 law, and sets forth the allegations and charges on which this contest is based, and which, briefly stated, 
 are substantially as follows: 
 
 That the official Ijallots prepared by the secretaiy of the Territory of Hawaii and furnished to the 
 various inspectors of election throughout the Territory were illegal, in that said ballots had printed 
 thereon numbers whereby they could be identified, contrary to the express provisions of law regulating 
 such election ; that said ballots with the numbers on were actually cast or voted in many of the precincts; 
 that the numbers on such ballots corresponded with the numbers entered on the poll book opposite the 
 electors' names, and by that method the secrecy of the ballot was destroyed; that many of the electors 
 in the Territory were, prior to and at the time of said election, in the employ of the Territorial govern- 
 ment, whose officers and agents were the party friends and supporters of the contestee, and the fact that 
 the election inspectors could determine how any man voted afforded a means of intimidating and coer- 
 cing those employees to vote for the contestee even against their convictions; that employees of the 
 Territorial government engaged in the construction of roads and other public works were organized into 
 political clubs by government officials in authority over them and were prevented from attending or 
 participating in meetings held in behalf of contestant, and were threatened with loss of employment if 
 they manifested any favor for his candidacy, and that such employees were marched to the polls and 
 voted in bodies while wearing the uniforms of such clubs, and were threatened with loss of employment 
 if they did not vote for the contestee; that there were several precincts in which ballots were cast with 
 the numbers on, and such numbers were torn off by the election officers before they were counted or 
 before they were opened and credited to the several candidates; that this was a mutilation of the ballots, 
 and that those ballots were void and should have been rejected. 
 
 In due time the contestee filed an answer to the notice of contest, which is, in substance, a general 
 denial of the material allegations set forth in the notice of contest. 
 
 The contestant, through his counsel, expressly stated that the contestee was not personally respon- 
 sible, directly or indirectly, for any of the irregularities or violations of law set forth in the notice of 
 contest. 
 
 ' First session Fifty-ninth Congress, Record, p. 4285; House Report No. 2651.
 
 676 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 527 
 
 Section 85 of the organic act for the government of the Territory of Hawaii provides: 
 
 "That a Delegate to the House of Representatives of the United States, to serve during each 
 Congress, shall be elected by the voters qualified to vote for members of the house of representatives 
 of the legislature. Such Delegate shall possess the qualifications necessary for membership of the senate 
 of the legislature of Hawaii. The times, places, and manner of holding elections shall be as fixed by 
 law. The person having the greatest number of votes shall be declared by the governor duly elected, 
 and a certificate shall be given accordingly. Eveiy such Delegate shall have a seat in the House of 
 Representatives with the right of debate, but not of voting." 
 
 Section 6 of that act provides: "That the laws of Hawaii not inconsistent with the Constitution 
 or laws of the United States or the provisions of this act shall continue in force, subject to repeal or 
 amendment by the legislatiu-e of Hawaii or the Congress of the United States." 
 
 Section 64 of said act provides that the rules and regulations for holding elections under the Repub- 
 lic shall continue in force after the annexation, with a few modifications therein set forth, which were 
 made necessary by the change of government from the Republic to its present status as a Territory of 
 the United States, and no provision is there made for the election of a Delegate to the Congress. 
 
 Section 65 of said act provides: "That the legislature of the Territory may from time to time 
 establish and alter the borndaries of election districts and voting precincts, and apportion the senators 
 and representatives to be elected from such districts." 
 
 Section 55 of said act, which sets forth and enumerates the legislative powers of the Territory, 
 confers no jurisdiction on the Territorial legislatiu'e to modify or amend the election law, and makes no 
 reference to it. The election laws of the Republic contained no provision for the election of a Delegate 
 to Congress, for no such office existed, and the organic act has no provision for that purpose except as 
 contained in section 85, and apparently confers no power on the legislature of Hawaii to amend or sup- 
 plement those laws. But Hawaii is entitled to a Delegate in Congress, and such Delegate must be 
 elected by the voters qualified to vote for members of the house of representatives of its legislature. 
 The time for holding such election is fixed by section 14 of the organic act, but neither in that act nor 
 in the laws of the Territory is there any definite procedure for the conduct of such election. Therefore 
 the secretary of the Territory was obliged to formulate entirely new and independent rules and regula- 
 tions for the election of a Delegate, or to so adjust and supplement its present election laws and machinery 
 as to accomplish the same purpose. The counsel for both parties to this contest assumed that the Dele- 
 gate should be elected according to the election laws of the Territory, so far as they applied, and made 
 their briefs and arguments on that assumption. The report in the Wilcox contested-election case 
 (Rowell's Digest of Contested Election Cases, p. 601) is an authority in support of their action. 
 
 The committee were unanimous (with the possible exception of one Member) 
 in declaring that they did not find in the record sufficient evidence of intimidation, 
 fraud, corruption, or irregularities of any kind to justify it in unseating the con- 
 testee or in setting aside the election. 
 
 In conclusion the committee respectfully recommended to the House of Repre- 
 sentatives that the election laws of the Territory of Hawaii be so amended and 
 supplemented as to provide definitely for the election of a Delegate to the Congress. 
 
 On the remaining question, that of the ballots, five Members concurred in the 
 report, which purged the poll, while three, Messrs. W. E. Humphrey, of Washington, 
 Marshall Van Winkle, of New Jersey, and Frank B. Fulkerson, of Missouri, did 
 not agree that any ballots should be rejected. 
 
 The report found as follows in regard to the ballots: 
 
 Under the Hawaiian election law it was the duty of the secretary of state to have all the ballots 
 printed and sent to the several voting precincts, to furnish ballot boxes, and generally to provide the 
 ways and means for holding elections. This he undertook to do. The statute requires that two suitable 
 ballot boxes be provided for each election precinct. That one be marked in plain letters, "For senators," 
 and the other "For representatives." That was done, and a third box was provided and marked, 
 "For Delegate." The statute requires that ballots for senators be of blue paper, and the ballots for 
 representatives of white paper, and in the absence of statutory direction the ballots for Delegate were
 
 § 527 TIMES, PLACES, AND MANNER OF ELECTION. 677 
 
 made of pink paper. Thus far no fault is found with the preparations made or criticism offered on the 
 action of the secretary of state in supplementing the statute by providing for separate balloting for 
 Delegate. Aside from the Delegate to Congress, senators and representatives to the legislature of the 
 Territory of Hawaii are the only officers of that government elected by the people. The secretary of 
 state and election officers of Hawaii, having attempted to follow the election law in the choice of Delegate, 
 with the apparent consent of the several candidates for that office, are bound by that law. 
 
 They should not be permitted to invoke it for one purpose and reject it for another. So far as 
 it goes it is definite and clear. It declares that the ballot shall bear no word, motto, device, sign, or 
 symbol other than allowed therein, and shall be so printed that the tj'pe shall not show a trace on the 
 back; and if a ballot contains any mark or symbol contrary to the provisions therein set forth it must 
 be rejected, and otherwise carefully guards and protects the secrecy of the ballot. It has no provision 
 for numbering the ballots, or implied authority so far as your committee can discover. However, in 
 the year 1903 the ballots prepared for the county election did contain numbers. Those were on the 
 sides of and separated from the main parts of the ballots by perforated lines. This was done to avoid 
 substitutions and perhaps other possibilities of fraud or irregularity, and according to the evidence 
 they proved satisfactory and tended toward honest elections. In the preparation of the ballots for 
 the general election of 1904 the secretary of state adopted the same plan so far as numbering was con- 
 cerned. But the numbers were not placed in the same relative positions. 
 
 The ballots were printed and put up in pads of 100 each and numbered in sequences from 1 to 100. 
 Clear across the top of each liallot and separating it from its stub was a distinctly perforated line, and 
 a number on such stub corresponded with the number on the upper right-hand corner of the ballot 
 separated from the balance of it by less distinctly perforated lines. It was the intention that the ballot 
 should be torn off from the stub on such large perforated line. But this, by mistake of the election 
 officers, was not done in all instances. The two numbers, one on the stub and one on the upper right- 
 hand comer of the ballot proper, were liable to lead to confusion and mistakes on the part of election 
 officers, some of whom naturally had not much experience and were not paiticularly instructed as to 
 their duty. When an elector was given a ballot his name was put down on the poll list, and his num- 
 ber, which was apt to correspond with the last figures on his ballot number. It is therefore clear that 
 if the number were not removed from the liallot before depositing it in the Ijox the identity of his vote 
 could be determined by the election officers or other persons who afterwards examined the ballots 
 and poll lists, and the secrecy of the ballot was violated. This was admitted by contestee's counsel. 
 It was the intention of the secretary of state that the number in the upper right-hand corner of the 
 ballot should be removed before such ballot was deposited in the box, for the instructions sent out 
 by him to the voters and election officers alike contained this provision: 
 
 "Before leaving the compartment the voter is to refold his ballot just as he received it from the 
 chairman, and thus folded deliver it to the inspector of election in charge of the ballot box and announce 
 his name. After his name is checked on the register, the inspector shall remove the perforated slip, 
 so that the ballot shall have no mark of identification, and then deposit it in the ballot box." 
 
 The "perforated slip" here referred to is clearly intended to be the perforated slip in the upper 
 right-hand comer. This perforation is not so distinct as the one across the top of the ballot dividing 
 it from the stub, and it was claimed by contestant's counsel that it was not in fact a perforation, but 
 an indentation. However, it is very frequently spoken of by witnesses for both parties as a "perfora- 
 tion" and a "perforated line." Besides, if the number were left on the ballot it would contain a mark 
 of identification, which the instruction sought to guard against. 
 
 In many of the precincts the election officers, by a misconception of the law and directions, did 
 not detach the numbers in the upper right-hand corners of the ballots before depositing them in the 
 boxes. Of those ballots 5,127 were cast. In the afternoon of election day the secretary of state learned 
 that at some of the precincts ballots were being deposited with the numbers on, and he immediately 
 notified the election officers as far as possible, by the use of the telephone and special messengers, that 
 they were making mistakes. After the polls were closed some of them undertook to correct those 
 mistakes by removing the numbers from such ballots before they were counted, or, at all events, before 
 they were opened and credited to the several candidates. Of those ballots from which the numbers 
 were removed there were 2,200, leaving 2,927 on which the numbers were allowed to remain. The 
 counsel for the contestee in their briefs and arguments admitted that these 2,927 ballots were void and 
 should be rejected from the count. But they insisted that the 2,200 ballots from which the numbers
 
 678 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 527 
 
 had been removed were valid and should be counted. With this conclusion your committee can 
 not agree. If the 2,927 ballots from which the numl^ers were not removed were void, we are of the 
 opinion that the 2,200 from which the numbers were removed were void also. Those ballots were 
 cast when they were deposited in the boxes, and if void then nothing which the election officers did 
 afterwards could make them valid. 
 
 Section 95 of the Hawaiian election law provides that "all questions as to the validity of any 
 ballot sliall be decided immediately, and the opinion of a majority of the inspectors shall be final and 
 binding, subject to revision by the supreme court as herein provided." 
 
 But this does not permit the inspectors to add to, take from, or change any ballot, nor is any power 
 or discretion to do that given them anywhere in the law. They must pass on the validity of a ballot 
 and return it just as it is, with their decision thereon, subject to revision by the supreme court. Open 
 the door and permit election inspectors, after the polls are closed, to meddle with the ballots, even to 
 correct their own mistakes, and no one can tell what the abuse of that discretion may lead to. The 
 duties of such inspectors are and should be strictly ministerial. There should be no relaxation of the 
 law in this regard. They should be required to carefully follow the statute, leaving discretionary 
 power, if at all, to the court or reviewing boards. This procedure is apt to secure more uniformity and 
 safer results. If the election inspectors had the right to remove the numbers from the 2,200 ballots and 
 count them, it may be argued with considerable force that the canvassing board had a right to remove 
 the numbers from the 2,927 ballots and count them. 
 
 We therefore reject 5,127 ballots as void. Deducting these from the total of 11,990 it leaves 6,863 
 valid ballots. Of these, contestee received 4,097; contestant, 1,578; Mr. Notley, 1,188. 
 
 The contestee received a plurality over contestant of 2,519, and a majority over all of 1,331. We 
 are of the opinion, after a careful examination of tlie record, that the secretary of state intended no 
 wrong in preparing the ballots in the manner described, nor do we find that a conspiracy was entered 
 into for party success by means of fraud or intimidation. We believe that the depositing of the ballots 
 without detaching the numbers was done by mistake and misapprehension on the part of the election 
 inspectors, and not through any design or concerted plan to commit any wrong against the contestant 
 or any other candidate. An examination of the returns confirms this view. One would naturally 
 expect, if there was a scheme devised for the purpose of intimidating voters to support contestee, that 
 he would have received an unduly large proportion of the votes where such scheme was carried out, 
 whereas the contrary appears to be the fact, for his percentage of the void and rejected ballots was not 
 as large as of all the ballots cast nor was it as large as his percentage of the valid ballots. 
 
 The following resolutions, in which all the committee concurred, were agreed to 
 without division by the House: 
 
 Resolved, That Curtis P. laukea, the contestant, was not elected a Delegate to the Fifty-ninth 
 Congress from the Territory of Hawaii. 
 
 Resolved, That Jonah K. Kalanianaole, the contestee, was duly elected a Delegate to the Fifty- 
 ninth Congress from the Territory of Hawaii, and is entitled to a seat therein.
 
 Chapter XVIIL* 
 CREDENTIALS AND PRIMA FACIE TITLE." 
 
 1. In due form from Becognized Constituency, sections 628-537.^ 
 
 2. Questions as to Validity of, sections 538-543.^ 
 
 3. In Relation to Questions as to the Fact of Election, sections 644-652.'' 
 
 4. Befusal of State Executives to Issue, sections 653-564.' 
 6. In relation to Questions as to Vacancy, sections 565-570.^ 
 6. As related to Contested Elections, sections 671-588.' 
 
 528. The House admits on his prima facie showing and without re- 
 gard to final right a Member-elect from a recognized constituency w^bose 
 
 * See Volume VI, Chapter CLX. 
 
 ' Question of prima facie title not to be reopened when once decided. Section 847 of Volume II. 
 
 As related to enrollment by the Clerk. Chapter II, sections 30-60 of this volume. 
 
 As related to qualifications. Cases of Connor (sec. 469 of this volume). Roberts (sec. 474). Smoot 
 (sec. 481), and others (sees. 415, 416, 420, 429, 432,443,468); also cases involving question of loyalty 
 (sees. 443, 448, 453, 457, 460, 461, 462). 
 
 2 In relation to districts distracted by war. Cases of Foster (sec. 362); Segar (sec. 363); Clements 
 (sec. 365); Wing v. McCloud (sec. 368); Pigott (sec. 369); Grafflin (sec. 371); McKenzie v. Kitchen 
 (sec. 374); Chandler and Segar (sec. 375); Fields (sec. 376); Flanders and Hahn (sec. 379); Johnson, 
 Jacks, and Rogers (sec. 380); Louisiana Members (sec. 381); also Senate cases, sections 382-384. 
 
 Members-elect from States lately in secession not admitted on prima facie title. Chapter XI, 
 sections 387-388 of this volume. Senate decisions, sections 389-395. 
 
 Delegates elected in unorganized Territories not admitted on prima facie title. Sections 405, 410 
 of this volume. 
 
 ' See cases of Brockenbrough v. Cabell (sec. 812 of this volume), and Wiggington v. Pacheco (sec. 
 927 of Vol. II). 
 
 * Case of the New Jersey Members (sees. 791-794 of this volume); of Tennessee Members (sec. 521); 
 Gilbert and Wright (sec. 520); Minnesota members (sec. 519), and a case involving apportionment (sec. 
 309). 
 
 ' Refusal of State executive to sign. Sections 353, 415 of this volume. 
 
 ^ Cases of Mississippi Members (sec. 518 of this volume); Newton (sec. 489); Blakely v. Gol- 
 laday (sec. 322), and cases wherein States have sent Members in excess of the apportionment (sees. 314- 
 318 of this volume); also the Senate case of Stanton v. Lane (sec. 491). 
 
 ' See also House cases as follows: Letcher xk Moore (sec. 53); "Broad Seal" case (sec. 103); Smith 
 V. Brown (sec. 459); Symes v. Trimble (sec. 452); Louisiana cases (sees. 328, 332); Chalmers v. Manning 
 (sees. 44, 45); Gunter v. Wilshire (sec. 37); Wallace v. McKinley (sec. 986 of Vol. II); Atkinson v. Pen- 
 dleton (sec. 1020 of Vol. II); McGinnis v. Alderson (sec. 1036 of Vol. II). 
 
 As to prima facie right when returned Member dies pending a contest. Section 735 of this volume. 
 
 Contestant not to be seated becaiwe a partial investigation reveals for him a prima facie title. Sec- 
 tion 772 of this volume. 
 
 The certificate of the State executive is prima facie evidence only. Section 637 of this volume. 
 
 Also see Senate cases as follows: Kellogg, Spofford, and Manning (sees. 354-357); Ray v. McMillen 
 (sec. 345); Pinchback, McMillen, Marr, and Eustis (sees. 347-353); Sykes v. Spencer (sec. 342); Morgan 
 and Lamar (sec. 359); Sanders, Power, Clark, and Maginnis (sec. 358). 
 
 679
 
 680 PRECEDENTS OF THE HOUSE OF KEPEESENTATIVES. § 529 
 
 credentials are in due form and whose qualifications are unquestioned. — 
 On September 4, 1837,' at the organization of the House, the Clerk was calling the 
 roll of Members-elect by States, and had reached Mississippi when Mr. Charles F. 
 Mercer, of Virginia, arose and having questioned the right of the two gentlemen from 
 Mississippi present to seats, offered this resolution: 
 
 Resolved, That sufficient evidence has not been afforded to this House that John F. H. Claiborne 
 and Samuel J. Gholson are lawfully entitled to seats therein. 
 
 It appeared in the course of the debate that the Members from Mississippi had 
 regular credentials from the governor of the State, and one of them annoimced his 
 piupose, in case he was challenged, to challenge every Member present to produce 
 his credentials. 
 
 Mr. Mercer's resolution was laid on the table — ayes 131, noes 5 — and the names 
 of the Members from Mississippi were called. ' 
 
 529. On December 1, 185G,'' Mr. John S. Pelhps, of Missouri, presented the 
 credentials of John W. VvTiitfield as a Delegate from the Territory of Kansas, to 
 fill the vancancy existing by the decision of the House unseating Mr. Whitfield at 
 the first session of the present Congress. 
 
 The credentials having been read, Mr. Phelps stated that the Delegate-elect 
 was now present and was ready to take the usual oath. 
 
 Mr. Galusha A. Grow, of Pennsylvania, objected to the administration of the 
 oath to the said Delegate-elect, when the Speaker * said that the question was for 
 the determination of the House, viz. Shall the oath to support the Constitution of 
 the United States be administered to John W. Whitfield as the Delegate-elect 
 from the Territory of Kansas ? 
 
 It was urged by Mr. Phelps that, the credentials being in due form, the 
 Delegate-elect was entitled, by prima facie right, to be sworn in. Such had been 
 the practice of the House. 
 
 On the other hand, Mr. Grow cited the New Jersey cases, and that of Moore 
 and Letcher, in former Congresses, as precedents to justify the objection in the 
 present case. 
 
 The question being taken, the House, by a vote of yeas 97, nays 104, decided that 
 the oath should not be administered to Mr. Whitfield. 
 
 Thereupon a motion was made to reconsider, and after a parliamentary 
 struggle of long duration, the vote was reconsidered, and on December 9, the 
 question being again taken, the House voted, by 111 yeas to 108 nays, that the 
 oath should be administered to Mr. Whitfield, and he was accordingly qualified. 
 
 530. On March 4, 1869,^ Mr. William Lawrence, of Ohio, submitted the 
 following resolution during the administration of the oath to Members at the 
 organization of the House: 
 
 ' First session Twenty-fifth Congress, Journal, p. 4; Globe, pp. 2, 3. 
 
 ^See section 518 of this volume for full explanation of the conditions under which these credentials 
 were given. 
 
 3 Third session Thirty-fourth Congress, Journal, pp. 7, 8, 84, 85; Globe, pp. 2, 08, 69. 
 
 'Nathaniel P. Banks, jr., of Massachusetts, Speaker. 
 
 'First session Forty-first Congress, Journal, p. 9; Globe, p. 7.
 
 § 531 CREDENTIALS AND PRIMA FACIE TITLE. 681 
 
 Recoiled, That A. A. C. Rogers, claiming to be the Representative in the Forty-first Congress 
 from the Second district of Arkansas, shall not now be permitted to take the oath of office or a seat as 
 such Representative, but his credentials shall be and are referred to the Committee of Elections when 
 appointed. 
 
 Mr. Lawrence stated that he held a certificate from the governor of Arkansas 
 stating that in a portion of the district which Mr. Rogers represented there had been 
 great disorder and no fair election. 
 
 It was urged La opposition that Mr. Rogers held a certificate regular in form 
 and that he should be sworn in, leaving his final right to the seat to be determined 
 later. 
 
 A motion to lay the resolution on the table was agreed to, and the oath was 
 administered to Mr. Rogers. 
 
 531. On March 4, 18G9,' after the election of the Speaker, and while the 
 oath of office was being administered to the Members-elect, Mr. James Brooks, of 
 New York, proposed, when the Members from Missouri presented themselves to be 
 sworn, the following: 
 
 Resolved, That the right of Robert T. Van Horn and David P. Dyer to seats upon this floor be 
 inquired into by the Committee of Elections before they are permitted to be sworn in as Members of 
 the Forty-first Congress. 
 
 The reason given for the presentation of tliis resolution was that the two 
 gentlemen had not been elected, although it appeared that their credentials were 
 regular in form. It was urged against the adoption of the resolution that, while 
 there might be a question as to the final right of the two gentlemen to their seats, 
 there could be no question as to their prima facie right. Mr. John F. Benjamin, 
 of ^Missouri, submitted a motion that the oath be administered. 
 
 After further debate, Messrs. Van Horn and Dyer stood aside, and on the suc- 
 ceeding day the motion was put that the oath be administered to them. On a motion 
 to lay that motion on the table, there appeared, j^eas 4, nays 163. The motion 
 that the oath be administered was then agreed to. Messrs. Van Horn and Dyer 
 then appeared and took the oath. 
 
 532. On December 5, 1870," at the ojjening of the session, the credentials 
 of R. W. T. Duke, Member-elect from the Fifth Congressional district of Virginia, 
 were presented to the House. 
 
 Mr. James H. Piatt, jr., of Virginia, presented a resolution referring the papers 
 in a contest against the right of Mr. Duke to a seat, as well as the credentials, to 
 the Committee on Elections, with instructions to report at an early date on his 
 prima facie right to a seat. 
 
 Mr. Samuel J. Randall, of Pennsylvania, urged that it was in accordance with 
 the practice of the House to allow the Member-elect to be seated when his 
 credentials were in due form, leaving the question of final right to the seat to 
 be determined later. In this case Mr. Randall showed the credentials were in 
 proper form according to the provisions of the law of Virginia. 
 
 ' First session Forty-first Congress, Journal, pp. 9, 10; Globe, pp. 7, 10. 
 ^ Third session Forty-first Congress, Journal, pp. 7, 8; Globe, pp. 11, 12.
 
 682 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 533 
 
 The House having declined by a vote by tellers of ayes 57, noes 60, to second 
 the previous question on the motion of Mr. Piatt, it was then, on motion of Mr. 
 Randall, 
 
 Ordered, That the oath of office be administered to the said R. W. T. Duke. 
 
 533. On January 24, 1871,^ Mr. P. M. B. Young, of Georgia, presented 
 the credentials of Mr. Stephen A. Corker, of the Fifth Congressional district of 
 Georgia, and asked that he be sworn in. 
 
 Jilr. Benjamin F. Butler, of Massachusetts, objected, and after presenting the 
 memorial of Thomas P. Beard, claiming the seat, moved that the petition and the 
 credentials of Mr. Corker be referred to the Committee on Elections. The objection 
 urged in behalf of Mr. Beard was that there had been outrage and intimidation in 
 the district which had rendered illegal the election of Mr. Corker. It was not denied 
 that Mr. Corker's credentials were in regular form, properly signed and sealed. 
 
 In the course of the debate on Mr. Butler's motion, Mr. Henry L. Dawes, of 
 Massachusetts, said: 
 
 Sir, I, as the organ of the Committee on Elections for twelve years, have time and again so stated. 
 It has been stated on behalf of that committee on the floor of this House, and it stands in the Globe, as 
 well on the part of one side of the House as on the other, that the certificate of a Member, where there 
 was no allegation against his eligibility, of his lack of loyalty, or other ineligibility, entitled him to be 
 sworn in. It has been the struggle during all these disturbed times of that Committee on Elections to 
 hold to the precedents and to the law against passion and against prejudice, so that if the party should 
 ever fall into a minority they should have no precedent of their own making to be brought up against 
 them to their own great injury. Now, with nothing to be gained, but with everything to be lost, by the 
 precedent now sought to be established, I entreat the House to adhere to the ancient rule. 
 
 The question being taken, the motion of Mr. Butler was disagreed to — ^yeas 42, 
 nays 147. 
 
 The question then recurred on the motion of Mr. Young that the oath be 
 administered to Mr. Corker, and it was agreed to. Thereupon Mr. Corker appeared 
 and took the oath. 
 
 534. On December 5, 1881," at the time of the organization of the House, 
 and while the Speaker was administering the oath to the Members-elect, Mr. George 
 W. Jones, of Texas, challenged Mr. Joseph Wheeler, of Alabama, and later offered 
 the following resolution : 
 
 Resolved, That the question of the prima facie as well as the final right of Joseph Wheeler and 
 William M. Lowe, contestants, respectively claiming a seat in this House from the Eighth district of 
 Alabama, be referred to the Committee on Elections hereafter appointed, and until such committee 
 shaU report and the Hoiise decide such question neither of said contestants shall be seated. 
 
 The credentials of Mr. Wheeler were read, and proved to be regular in form and 
 in accordance with the law and the Constitution. 
 
 The House, after debate, and without division, voted that Mr. Wheeler be 
 permitted to take the oath in accordance with his prima facie right. 
 
 On the same day Mr. James R. Chalmers, of Mississippi, was challenged, and 
 imder similar circumstances, the House without division voted that he be allowed 
 to take the oath. 
 
 'Third session Forty-first Congress, Journal, p. 209; Globe, pp. 703-707. 
 -First session Forty-seventh Congress, Journal, pp. 11, 12; Record, pp. 9-14.
 
 § 535 CBEDENTIALS AND PKIJIA FACIE TITLE. 683 
 
 535. Credentials being in regular form, and unimpeached, the House 
 honors them, although there may be a question as to the proper limits of 
 the constituency. 
 
 Credentials being unimpeached, the status of the district under an 
 apportionment law is a question of final rather than prima facie right. 
 
 Forms of credentials borne by persons elected to fill vacancies. 
 
 On December 13, 1880/ ilr. Amos Townshend, of Ohio, presented the following 
 credentials: 
 
 In the name and by the authority of the State of Ohio, Charles Foster, governor of said State, to all whom 
 these presmts shall come, greeting: 
 
 By virtue of the powers conferred on me by law, I do hereby certify that at the special election held 
 on the fifth Tuesday, being the 30th day of November, A. D. 1880, Ezra B. Taylor was duly elected 
 Representative in the Forty-sixth Congress of the United States for the Nineteenth district of Ohio, to 
 fill the vacancy caused by the resignation of James A. Garfield. 
 
 In testimony whereof I have hereunto subscribed my name and fixed the great seal of the State of 
 Ohio, at Colimabus. this 8th day of November, 1880. 
 
 [seal.] Charles Foster, Governor. 
 
 Milton Barnes, 
 
 Secretary of State. 
 
 Mr. Frank Hurd, of Ohio, objected to the immediate swearing in of Mr. Taylor, 
 on the grotmd that after the election of Mr. Garfield and prior to the election of 
 Mr. Taylor, the legislature of Ohio, had by law changed the limits of the Congres- 
 sional districts of that State, and that the Nineteenth district resulting from that 
 change of law contained one comity not in the district before the change, and had 
 lost one comity that it contained before the change. After the resignation of Mr. 
 Garfield the governor had issued the writ of election, not to the new Nineteenth 
 district, but to the counties composing the old Nineteenth, although that district 
 had ceased to exist. Therefore Mr. Taylor had been elected from a district that had 
 no existence at all. 
 
 On the other hand it was argued by Mr. William McKinley, of Ohio, and by 
 others that Mr. Taylor's prima facie right to be sworn in was perfect, the certificate 
 raising no doubt as to its completeness and legality. 
 
 The House, after Mr. Hurd had withdra\vn his objection, voted that Mr. Taylor 
 should be sworn in, and referred the credentials to the Committee on Elections. 
 
 536. On December 19, 1883,= the credentials of Thomas G. Skinner, of the 
 First Congressional district of North Carolina, were presented to the House. Mr. 
 J. Warren Keifer, of Ohio, objected to the administration of the oath to him, and 
 offered a resolution, with a preamble. This preamble recited that Walter R. Pool 
 was at the November election, in 1882, elected to Congress from the First Congres- 
 sional district of North Carolina, composed of certain counties, including the county 
 of Bertie, but not including the coimty of Carteret. By Mr. Pool's death, on August 
 25, 1883, a vacancy occurred in the district. Since the election of said Pool the 
 legislature of the State had redistricted the State, constituting a new First district, 
 
 'Third session Forty-sixth Congress, Journal, p. 58; Record, pp. 102-106. 
 
 2 First session Forty-eighth Congress, Journal, pp. 149, 150; Record, pp. 179-189.
 
 684 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 537 
 
 which did not inchide the county of Bertie but did include the county of Carteret. 
 The preamble then proceeds: 
 
 Whereas to fill the vacancy occurring as aforesaid, the governor of North Carolina ordered an 
 election in the said new First district, by virtue of which election Hon. Thomas G. Skinner now claims 
 a seat in this House; and 
 
 ■\\"hereas to admit him to the seat would leave the said county of Bertie without any district rep- 
 resentation in this Congress, and the said county of Carteret would be doubly represented ; therefore. 
 
 Be it resolved. That the credentials of Mr. Skinner be referred to the Committee on Elections of 
 this House, when appointed, with power to ascertain and report all the facts pertaining to this vacancy 
 and the said election to fill the same, at as early a day as practicable, together with the law governing 
 the case. 
 
 Mr. Keifer cited precedents applying to the case, but after debate the House, 
 by a vote of 117 yeas to 108 nays, preferred the following substitute: 
 
 Resolved, That Thomas G. Skinner be sworn in, and that it be referred to the Committee on 
 Elections, when appointed, to report at the earliest practicable moment whether the said Thomas G. 
 Skinner wa.? elected from the First Congressional district of North Carolina as created before the last 
 Congressional apportionment of Representatives in Congress or from a district in North Carolina created 
 in that State since the election of Walter R. Pool, deceased, and to further report whether in the judg- 
 ment of said committee said Skinner was elected from the proper district. 
 
 537. The Virginia election case of Garrison v. Mayo, in the Forty- 
 eighth Congress. 
 
 The House should not disturb the prima facie title of a Member 
 already seated on credentials in due form and unimpeached by any- 
 thing properly presented to the House. 
 
 The House overruled the action of State officers who had rejected a 
 county return because of a writing on the seal of the clerk's certificate. 
 
 Votes found in the -wrong ballot box have been counted without 
 proof of mistake, although there was dissent in the committee. 
 
 A question as to the best rule for elimination of an excess of ballots 
 in the box. 
 
 Testimony as to what a voter said after election as to his vote is 
 not admissible to prove for whom the vote was cast. 
 
 Where voters are disqualified for crime, a vote should not be rejected 
 unless there is proper evidence of the conviction of the person offering it. 
 
 On December 3, 1883,' at the organization of the House, the name of Robert M. 
 Mayo, of the First district of Virginia, appeared on the clerk's roll of members- 
 elect, and the oath was administered to him without objection. 
 
 On December 4, Mr. J. Randolph Tucker, of Virginia, offered this resolution: 
 
 Resolved, That the certificates and all other papers relating to the election of a Representative 
 of the First Congressional district of Virginia in the Forty-eighth Congress be referred to the Committee 
 on Elections, when appointed, with instructions to report at as early a day as practicable which of the 
 rival claimants to the seat from that district lias the prima facie right thereto, reserving to the other party 
 the privilege of contesting the case upon the merits. 
 
 It was at once objected, especially by Mr. William H. Calkins, of Indiana, 
 who had been chaLrman of the Committee of Elections in the preceding Congress, 
 that it was unusual, if not unprecedented, for the House to inquire into the prima 
 
 ' First session Forty-eighth Congress, Journal, pp. 21, 31; Record, pp. 3, 28, 43, 44.
 
 § 537 CREDENTIALS AND PRIMA FACIE TITLE. 685 
 
 facie riglit of a Member after he had been sworn in. The svrearing in was the 
 decision on the prima facie right. 
 
 The debate on the resolution was resumed December .5, and Mr. Tucker main- 
 tained that the House being judge of the election, returns, and qualifications of its 
 own Members, it certainly might inquire as to the right of the Member to hold the 
 seat during the intermediate time between the swearing in and the decision as to 
 the final right. 
 
 Mr. Aylett H. Buckner, of Missouri, offered this resolution, wliich was agreed to : 
 
 Resolved, That the resolution be committed to the Comimittee on Elections, when formed, with 
 instructions to report on the legal question involved therein. 
 
 On February 8, 1884,' Mr. Robert Lowry, of Indiana, submitted the report of 
 a majority of the committee. The report held — 
 
 It will be observed that by the resolution adopted the former resolution was simply referred to this 
 committee to report upon the legal question involved, without any instructions to determine whether 
 upon the face of the papers filed in the contested election case, and as appears by them, the contestor 
 or contestee is prima facie entitled to the seat. This being so, especially as the contestee has been sworn 
 in, unless the House itself shall determine to go behind the certificate of the governor (which, under 
 some circumstances, and keeping within the i-ules of parliamentary law, the House, in the opinion of 
 this committee, is empowered to do), the committee is further of the opinion, upon the le^al question 
 involved, that the certificate of the governor of the State of Virginia, showing that Robert M. ilayo was 
 regularly elected as such Representative, being in due form, in the absence of anj'thing properly pre- 
 sented to us to impeach it, is conclusive. 
 
 This conclusion is based upon the premise that the House has not instructed the committee to 
 consider the evidence outside of the certificate referred to in the original resolution proposed by Mr. 
 Tucker, tending to impeach the certificate of the governor of Virginia, but merely referred that resolu- 
 tion to the committee with instructions to report upon the legal question involved; and the certificate 
 being regular upon its face, and the House not having authorized or directed the consideration of 
 extrinsic evidence to impeach the commission of the sitting Member, the conclusion reached is based 
 upon the principle that the integrity of the certificate is not duly challenged. 
 
 In order to dispose of the question submitted, the committee therefore recommends the adoption 
 of the following resolution, and that the committee be discharged from the further consideration of this 
 part of the case: 
 
 "Resolved, That upon the legal question involved in the case of Garrison v. Mayo, the retm-n of 
 the governor, in the absence of an>-thing appearing thereon or properly presented in connection there- 
 with tending to impeach it, is conclusive as to the prima facie right, and that, pending the contest on 
 the merits, the sitting Member is therefore in this case entitled to retain the seat." 
 
 It does not appear that this proposition was acted on.^ 
 
 On March 20 ^ ^Ir. Henry G. Turner, of Georgia, submitted the report on the 
 question of final right in the contest of Garrison v. Mayo. 
 
 As to what may be tenned the actual result shown by the returns that came 
 to the State canvassing board the report says: 
 
 Upon the basis of this statement giving Mr. Mayo a plurality of 1 vote, the board further certified 
 that Mr. Mayo was duly elected. It is due to the governor to say that he did not sign this latter cer- 
 tificate. 
 
 This plurality of 1 vote, upon which Mr. Mayo was accredited as a Representative of Virginia, 
 was obtained by the rejection of the return of the election in Gloucester County. That return was in the 
 
 ' House Report, No. 286; Mobly, p. 53; Journal, p. 532; Record, p. 995. 
 
 - It was stated in the debate that the report was not acted on. Record, p. 2114. 
 
 '■' House Report No. 954; Mobly, p. 55.
 
 686 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVTIS. § 537 
 
 usual form, and was excluded by the board from the canvass upon the ground that the certificate of the 
 clerk of the county court of that county was authenticated by a seal impressed upon the paper from 
 which it appeared that the word "circuit" in the seal had the word "county" written over it. That 
 county gave the contestant a majority over Mr. Mayo of 57 votes. 
 
 It also appears that the return from Hog Island, in Northampton County, an island situate in the 
 bay, many miles from the mainland, was delayed for a day or two, and was therefore excluded from the 
 count. 
 
 That precinct gave the contestant a majority of 14. 
 
 Mr. Mayo, during the argimient before the committee having conceded that the majorities for con- 
 testant cast in Gloucester County and Hog Island precinct of Northampton County should be counted 
 for contestant, no argument is necessary to justify their addition to the votes allowed to him by the State 
 board of canvassers. Indeed, no reason can be given for their exclusion, and none was attempted. 
 
 This statement demonstrates for contestant a majority of 72 votes. It being thus made to appear 
 that the contestant was elected, the biuden is devolved upon the sitting Member to show by other evi- 
 dence that he was himself elected. This he undertook to accomplish by the various methods which 
 will now be stated. 
 
 Passing to the objections made by sitting Member, the committee considered 
 the following questions of law : 
 (1) The report says: 
 
 It appears that on the day of the election in question there was a separate box for votes on consti- 
 tutional amendments then submitted to the people for ratification. At Saluda precinct, in Middlesex 
 County, 6 ballots for Congressional candidates were found in the box set apart for the constitutional 
 amendments. The judges of election burnt these ballots. There were also found in the box provided 
 for the reception of ballots for Members of Congress 6 ballots or tickets on the constitutional amendment. 
 The judges of election, who are charged by law with the duty of holding the election and certifying the 
 result, did not regard this coincidence as sufficient evidence of mistake to justify counting these votes, 
 and no other evidence of mistake has been presented. Mr. Mayo insists that these 6 votes shotild be 
 counted for him. But only 2 of the 6 are shown by any satisfactory evidence to have contained his 
 name. The witness had the impression that one of them was a ticket for contestant, and thought, from 
 the appearance of the paper, that the other 3 were tickets for Mr. Mayo. It is obvious, therefore, that 
 in no view of this evidence can all of these ballots be counted for the sitting Member. 
 
 4. At Wicomico Church precinct, Northumberland, 2 ballots for Mr. Mayo were found in the box 
 for constitutional amendments, and 2 ballots for constitutional amendments were found in the box 
 provided for candidates for Congress. At Jamaica precinct, Middlesex, 25 ballots for Mr. Mayo were 
 found in the constitutional amendment box, and a number (not known by the witness) of ballots for 
 constitutional amendments were found in the box provided for the Congressional election. Waiving 
 the question as to whether this state of facts sufficiently shows that these 27 votes for Mr. Mayo should 
 have been counted for him under the precedents, we can not add them to the vote certified for him, 
 because it nowhere appears in the evidence that the commissioners of election who canvassed the votes 
 of these two counties (Middlesex and Northumberland) in fact excluded the votes in question. The 
 testimony shows that the precinct judges at Jamaica counted and returned separately the 25 votes found 
 for Mr. Mayo in the wrong box, and that the same was done by the judges at Wicomico precinct as 
 to the 2 votes in like situation at that place, "so that the commissioners [at the county site] might count 
 them or not, as they thought proper" (Record, pp. 321, 365, 369, 370). The sitting Member claims 
 these 27 votes in addition to the votes certified for him from these two counties and allowed by the 
 board of State canvassers. We can not accede to his demand, because he has not shown that they 
 were rejected by the county commissioners. 
 
 While the report of the committee was unanimous as to the conclusion that 
 sitting Member was elected, and while no minority views were presented, Mr. 
 Ambrose A. Ranney, of Massachusetts, one of the members of the committee, said 
 in debate ' that he believed that votes in a wrong box should not be counted unless 
 
 ' Record, p. 2115.
 
 
 § 537 CREDENTIALS AND PBIMA FACIE TITLE. 687 
 
 a satisfactory explanation was made to show that they were put into the box by 
 the mistake of the voter or by the error or fraud of the election officer. If it were 
 to be held otherwise, a dishonest voter might put a vote for Congressman in each 
 box, and so have two votes. It was true that the House had adjudicated otherwise in 
 the case of Cook v. Cutts, but he dissented then and should dissent now. 
 
 (2) The report rules in another case: 
 
 Mr. Mayo claims that 7 votes cast for him at The Hague, in Westmoreland County, were Ulegally 
 rejected by the precinct judges. At this precinct there were found in the ballot-box for candidates for 
 Congress 7 more tickets than names on the poll-books. In such a case the law of Virginia requires the 
 excessive ballots to be taken from the box by one of the judges, who shall be blindfolded, etc. In 
 this case one of the judges (who is the witness for the sitting Member) swears that ''without seeing any 
 difference in the tickets he turned his back on the box and drew out 7 tickets." He adds that they 
 were Mayo tickets. If the witness is to be believed, he did not see the tickets until after they were 
 taken from the box. There seems to have been a substantial compliance with the law. But if these 
 ballots were unfairly and illegally taken from the box and rejected from the count, it does not follow 
 that 7 votes should be added to the votes returned for Mr. Mayo. The question remains, By what 
 process shall we eliminate the excess of votes? We can not count more votes than were cast by the 
 voters. Shall we count them all, and then deduct the excess from the two candidates, as suggested by 
 one of the text writers, in proportion to the relative vote of each at the precinct where the excess occurs? 
 We can not comply with this rule, because there is no evidence in the record showing the relative vote 
 of each candidate at this precinct. The return of the aggregate vote cast in the entire county of West- 
 moreland shows that Mr. Mayo received 868 and Mr. Garrison 383. Upon the ratio of these numbers, 
 Mr. Mayo would lose, on account of the excessive votes, more than twice as many as Mr. Garrison would 
 lose under the rule suggested. We think the clearer course is to acquiesce in the action of the precinct 
 judges. 
 
 (3) A question as to the evidence of how a voter voted is thus discussed: 
 
 At Wicomico precinct, Northumberland County, the name of Charles Yeatman appeared twice 
 on the poll book. This name, where it first appeared on the poll book, was changed by the judges of 
 election to Charles Hartman; but why this change was made is not explained. If any such person as 
 Charles Hartman voted it was illegal, because no such name appeared on the registration book; but it 
 is not shown how he voted. It is insisted by the sitting member that the best theory is that Charles 
 Yeatman voted twice, and perhaps this view is correct. But there is no evidence to show how Yeatman 
 voted, except that a witness swears that Yeatman said, on the Sunday following the election, that he 
 voted for contestant. 
 
 Mr. Ranne}' also dissented from this, holding that the evidence was competent 
 to show how Yeatman voted. ^ 
 
 (4) The report rules as to evidence to justify the rejection of a vote: 
 
 We think that the vote of Henrj- Bromly, offered for Mr. Mayo at Wicomico Church precinct, was 
 illegally rejected, and ought to be counted for him. We also think that three other persons whose votes 
 would have been for Mr. Mayo, but whose votes were rejected because of alleged disqualifications on 
 account of crime, should be counted for the sitting Member, there being no proper evidence of their 
 conviction and punishment to be found in the record. 
 
 The decision of these questions, and the settlement of certain questions of fact, 
 made it clear to the committee that sitting Member had not overcome the real 
 majority of the contestant, so the committee recommended these resolutions: 
 
 Resolved, That Robert M. Mayo was not elected as a Representative to the Forty-eighth Congress 
 from the First Congressional district of Virginia, and is not entitled to the seat. 
 
 Resolved, That George T. Garrison was duly elected from the First Congressional district of Vir- 
 ginia, and is entitled to his seat. 
 
 ' Record, p. 2115.
 
 688 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 538 
 
 After debate,' the resolutions were agreed to without division, and Mr. Garrison 
 appeared and took the oath. 
 
 538. The Kentucky election case of Chrisman v. Anderson, in the 
 Thirty-sixth Congress. 
 
 An instance wherein the Elections Committee reported on both prima 
 facie and final right after one of the parties to the contest had taken the 
 oath. 
 
 A county board, charged by law with the immediate canvassing and 
 transmittal of precinct returns, may not change a prima facie result by 
 correcting alleged errors in precinct returns. 
 
 Returns of State officers are not binding on the House, which may 
 go behind all returns in determining final right. 
 
 A return not certified by any of the officers of election was rejected, 
 although on report of a divided committee. 
 
 On June 14, 1860,^ the Committee on Elections reported in the Kentucky elec- 
 tion case of Clirisman v. Anderson.^ 
 
 This case involved two questions: 
 
 (1) The first as to the prima facie right to the seat. 
 
 (2) The second as to the final right, involving a question of the rejection of the 
 vote of a precinct for informality in the return. 
 
 As to the first point, the report of the committee makes the following statement 
 of facts: 
 
 The Fourth Congressional district of Kentucky comprises eleven counties and sixty-four voting 
 precincts. By the laws of that State the election board at each precinct consists of two judges, a clerk 
 (who are appointed by the county court), and the sheriff or his deputy. It is the duty of this board to 
 count the votes cast at each precinct and certify the result, under their signatures, to the board of county 
 canvassers. The latter board consists of the presiding judge of the county court, the clerk thereof, and 
 the .sheriff or other officer acting for him at an election. 
 
 The poll books from the different precincts are required by law to be deposited with the county 
 clerk within two days after an election. On the next day the board (that is, the county board) shall 
 meet in the clerk's office, between 10 and 12 o'clock in the morning, compare the polls, ascertain the 
 correctness of the summing up of the votes, and in case of an election for a Representative in Congress, 
 it is made the duty of the board of examiners of each county, immediately after the examination of the 
 poll books, to make out three or more certificates in wnting, over their signatures, of the number of votes 
 given in the county for each candidate for said office; one of the certificates to be retained in the clerk's 
 office, another the clerk shall send by the next mail, under cover, to the secretary of state, at Frankfort, 
 and the other to be transmitted to the secretary by any private conveyance the clerk may select. 
 
 The governor, attorney-general, and secretary of state, and, in the absence of either, the auditor, 
 or any two of them, are a board for examining the returns of elections for Representatives in Congress 
 and certain State officers. 
 
 The State board is required when the returns are all in, or on the fourth Monday after an election, 
 whether they are in or out, to make out, in the secretary's office, from the returns made, duplicate cer- 
 tificates in writing, over their signatures, of the election of those having the highest number of votes. 
 
 These are the main features of the law prescribing the mode of canvassing the votes and ascer- 
 taining the result of an election in Kentucky; and your committee believe, from an examination of the 
 
 'Record, pp. 2112-2117; Journal, pp. 885, 886. 
 
 ^FirstsessionThirty-sixthCongress, House Report No. 627; Bartlett, p. 328; Rowell'sDigest, p. 167. 
 'Mr. Anderson had received the certificate, been enrolled by the Clerk, and had taken the oalh 
 with the other Members after the election of the Speaker. Journal, p. 166.
 
 § 538 CBEDEKTIALS AND PRIMA FACIE TITLE. 689 
 
 evidence and exhibits in the case, with the exception of a single precinct (which we Bhall hereafter 
 refer to), these requirements were substantially complied with. 
 
 The voting is viva voce, the name of each voter and of the candidate for whom he votes being 
 publicly cried by the sheriff or his deputy and recorded by the clerk. 
 
 According to the summing up and certificate of the board of State canvassers, of the whole niun- 
 ber of votes cast Mr. Anderson received 7,204 and Mr. Chrisman 7,201. 
 
 The returns were made in accordance witli the above provisions of law, but 
 after they were made certificates were received by the State canvassers from the 
 board of three counties amendatory of the original returns. In Boyle County 
 after the county canvassers had adjourned they reassembled to coiTect an alleged 
 error, made a recount, and transmitted an amended certificate to the State can- 
 vassers. It seems that ia this county the mistakes were discovered in the poll 
 book by gentlemen to whom the county clerk had loaned them. The corrections 
 made in the return of Boyle Coimty and two other counties were sufficient to show 
 a majority for the contestant. 
 
 The State board of canvassers declined to admit these corrections. The law 
 provided that the judges should sirm up the votes, certify the poll books, and 
 "deliver them in a sealed envelope to the sheriff." The State canvassers thought 
 that this provision for sealing the poll books negatived the idea of a correction 
 after the books had been opened and in the hands of other persons. Furthermore, 
 the State canvassers concluded that after the county board acted on the poll book 
 of the whole county and their certificate had been transmitted to the secretary of 
 state they had no power to recall or change those certificates. Their functions, 
 which were confined to the summing up of votes and could not be construed to 
 justify inquiry" as to corrections, ceased when the return was made. 
 
 The majority of the committee approved this decision of the State canvassers. 
 The minority disapproved it, holding that the sealing of the poll books for delivery 
 to the coimt}- board was not the imposition of a seal of authority, but the mere 
 act of sealing the envelope to perfect the security of returns in passing from the 
 judges of election to the county canvassers, and also contending that it was a 
 perversion of right that a county board should be precluded from correcting an 
 error. The period of twenty-five days allowed by law between the meetings of the 
 county and State canvassers suggested that such corrections were expected. The 
 minority also urged that a precedent of the State board in 1857 justified this view. 
 The majority denied the force of this precedent. 
 
 But while the majority of the committee found that the prima facie title could 
 not be changed, they say : 
 
 Your committee, however, do not suppose that the action of the State board is final and conclu- 
 sive upon this House. In everj- case of a contested election we believe it to be the duty of the House, 
 by its constituted agents, to go behind all certificates for the purpose of inquiring into and correcting 
 all mistakes which may he brought to its notice. 
 
 The committee then proceeded, in the light of the testimony, to make correc- 
 tions in the poll, showing enough errors, besides those which the coimty boards had 
 sought to correct, to give a majority of 7 votes for the sitting Member. 
 
 Besides these, the majority of the committee made a change still fm'ther in 
 favor of the sitting Member by throwing out the entire vote of Casey precinct, 
 
 .5994— vol, 1—07 44
 
 690 PEECEDENTS OF THE HOUSE OF BEPBESENTATIVES. § 539 
 
 because it was "not certified to by any of the officers of the election, neither judges 
 nor clerk. Its correctness is vouched for by no one. " It appears from the debate ' 
 that the return came in as a mere loose piece of paper, with certain figirres on it 
 and the words "George W. Earles, clerk." There was nothing about it to show 
 that it was a copy of a poll book required to be made by law and certified by the 
 proper and legal officers. 
 
 The minority of the committee did not approve this disposal of the Casey pre- 
 cinct retimi, and say: 
 
 The answer to the objection is verj' simple, that the provision of the statute is directory merely, 
 and the omission of the judges to do their duty was not intended by the legislature to disfranchise the 
 voters. That would be punishing the innocent voters for the sin of the judges. (See The People v. 
 Cook, 14 Barbour, 259; S. C, 4 Selden, 67; Truehart v. Addicks, 2 Texas, 217; Ex parte Heath et al., 
 3 Hill, 43; Batman v. Meguvan, 1 Metcalf's Ky. Rep., 535.) 
 
 It might as well be contended that if an envelope was not used for inclosing the poll book, before 
 delivering it to the sheriff, that circumstance would vitiate the election, though the poll book was 
 more surely protected than it could be in an envelope. The construction of the sitting Member would 
 invalidate almost every election. 
 
 There were also certain questions as to illegal votes, easily disposed of because 
 of the viva voce method of election. 
 
 On the whole the majority found a majority of 109 for the sitting Member, 
 and reported a resolution declaring him entitled to the seat. 
 
 The minority found contestant entitled to a majority of at least 8 votes. 
 
 On June 16 and 18^ the report was debated at length in the House, and the 
 recommendation of the majority was agreed to — yeas 112, nays 61. 
 
 539. Although a Member stated that credentials were based on 
 forged returns, the House seated the bearer, there being no conflicting 
 credentials. — On October IT, 1877,^ the House considered the case of Mr. 
 Romualdo Pacheco, of California, who was challenged at the organization of 
 the House and stepped aside without taking the oath, although his name was 
 on the Clerk's roll. 
 
 Mr. William M. Springer, of Illinois, who had challenged Mr. Pacheco and 
 objected to his receiving the oath, stated that by reason of fraud Mr. Pacheco's 
 opponent had been deprived of two votes, whereby Mr. Pacheco had been declared 
 elected by one vote. The fraud had been committed by the clerk in Monterey 
 County, who had altered the record by changing a figure "9" to a "7." The 
 secretary of state had declined to certify the vote to the governor because of 
 this fraud, but had been compelled by mandamus proceedings to certify the vote 
 as it was certified to him by the clerks. Therefore it was claimed that fraud 
 vitiated the credentials. 
 
 It was urged that the credentials of Mr. Pacheco were regular in form, according 
 to the law, and that there were no other credentials. His prima facie right was 
 therefore absolute and unquestioned. 
 
 The House, 'n-ithout division, voted that Mr. Pacheco be sworn in. 
 
 1 Globe, p. 3076. 
 
 2 Journal, p. 1127; Globe, pp. 3075, 3123-3133. 
 
 ^ First session Forty-fifth Congress, Journal, p. 24; Record, pp. 92, 93.
 
 § 540 CEEDEJfTIALS AND PRIMA FACIE TITLE. 691 
 
 540. The House honored credentials regular in form, but impeached 
 by a dociiment alleging that the election was not held on the day provided 
 by law. — On March 4, 1871/ while the Speaker was administering the oath to the 
 Members-elect at the time of the organization of the House, Mr. Job E. Stevenson, 
 of Ohio, objected to the administration of the oath to the Tennessee delegation, 
 and presented and had read the remonstrance of W. F. Prosser, which stated that 
 the gentlemen of the delegation were not elected according to the laws of Tennessee, 
 in that, as he alleged, they had not been elected on the day provided by the law. 
 
 After debate, the House, without division, agreed to a motion that the 
 Tennessee Members be sworn in, and that the memorial and their credentials be 
 referred to the Committee on Elections. 
 
 541. The New Mexico case of Chaves v. Clever, in the Fortieth 
 Congress. 
 
 Credentials being impeached by a paper from a Territorial oflacer, the 
 House declined to permit the oath to be administered until the prima facie 
 right had been examined. 
 
 Credentials issued in accordance with the organic law of a Territory 
 are recognized in preference to credentials authorized by a conflicting 
 Territorial law. 
 
 Credentials should be based on the face of the returns and not on an 
 examination of the votes. 
 
 On November 21, 1867,' the Speaker laid before the House credentials from the 
 governor of New Mexico showing the election of Charles P. Clever as Delegate from 
 the Territory'. At the same time a commimication addressed to the Speaker and 
 signed by the secretary of the Territory was presented. The secretary asserted in 
 this communication that the law of the Territory made it the duty of the secretary 
 to give the certificate of election, that the governor had assumed that duty and 
 given an illegal certificate, and that he, the secretary, had afiixed the seal thereto 
 under protest. The secretary further asserted that the election of Mr. Clever was 
 shown by including votes false and fraudulent, and that Mr. J. Francisco Chaves 
 had really been elected. The letter of the secretary showed the returns to be in 
 favor of Mr. Clever, however. 
 
 Mr. Henry L. Dawes, of Massachusetts, referring to the precedent in the Colorado 
 case, moved that the credentials and communication be referred to the Committee 
 on Elections, and that neither claimant be sworn in until after investigation. This 
 motion was agreed to without division. 
 
 On December 19 ' Mr. Henry L. Dawes, of Massachusetts, from the Committee 
 on Elections, reported that Mr. Clever had the prima facie right. 
 
 It appeared that the organic law organizing the Territory provided for a cer- 
 tificate such as the governor had given Mr. Clever. It further appeared that in 
 preceding years certificates had uniformly been issued in that form. A Territorial 
 law prescribed that the votes should be returned and coimted by the secretary 
 
 ' First session Forty-second Congress, Journal, p. 9; Globe, p. 7. 
 - First session Fortieth Congress, Journal, p. 255; Globe, p. 778. 
 'Journal, p. 126; Globe, pp. 291-294.
 
 692 PRECEDENTS OF THE HOUSE OF EEPKESENTATIVES. § 542 
 
 and that he should give the certificate; but the committee held that this law, if 
 in conflict with the organic law, must yield to it. 
 
 Furthermore the letter of the secretary showed that on the face of the returns 
 Mr. Clever had a majority; and this was as as far as the secretary was authorized 
 to go. When he attempted to say that some of Mr. Clever's votes were not good 
 votes he trenched on the prerogatives of the House. 
 
 The question being taken on agreeing to the report, there were — yeas 78, nays 31 ; 
 so Mr. Clever was sworn in. 
 
 On three several occasions, December 20, 1867, and Februarj^ 20 and July 
 25, 1868,' the time for taking testimony in this case was extended. 
 
 542. The case of Chaves v. Clever, continued. 
 
 Instance wherein the person seated after examination of prima facie 
 right was unseated after examination of final right. 
 
 The returns of a precinct being shown to have been fraudulently 
 altered, the House corrected the return by the count as made at the polls. 
 
 Although the voting place was illegally and fraudulently located, 
 and there was intimidation at the polls as well as fraudulent alteration 
 of the returns, the entire vote was not rejected. 
 
 Votes cast at precincts having no legal existence at the time of 
 the election were thrown out by the House. 
 
 Returns made up from additions of names of voters on the poll books 
 instead of from count of the ballots were rejected, although there was no 
 evidence of error or fraud in the returns. 
 
 Poll books not being authenticated by a proper certificate as required 
 by law, the returns of the precinct were rejected. 
 
 On February 9, 1869,^ Mr. S. Newton Pettis, of Pennsylvania, reported from 
 the Committee on Elections on the final right to the seat. On the face of the 
 retiuns sitting Member had received a majority of 540 votes. The committee, 
 as a result of their investigations, found a majority of 389 for contestant. In 
 reaching this result several questions were determined: 
 
 (1) In one precinct of Eio Arriba County, and one precinct of Mora County, 
 the votes were apparently correctly coimted at the close of the polls; but after 
 the counting and before the probate judge sent an abstract with the poll books to 
 the secretary of the Territory, as prescribed by law, the poll books were fraudu- 
 lently altered so as to increase sitting Alember's majority by 518 votes. The com- 
 mittee determined that this excess should be deducted, leaving the vote to stand 
 as counted at the close of the polls. 
 
 (2) In La Junta precinct, in Mora Countj', it appeared that — 
 
 The place of voting was illegally and fraudulently placed beyond the settlements and resident 
 voters of the precincts and held in a shed erected for that purpose upon an open plain, and that persons 
 who were desirous of voting for him were grossly and violently assailed by the friends of the sitting 
 Member, and by such means were intimidated and entirely prevented from voting, and that after the 
 polls were closed the returns were so changed as to fraudulently increase the vote of the sitting Delegate 
 100, and that the great majority of persons who voted at such poll were camp followers and had no legal 
 right to vote under the laws of the Territory. 
 
 'Journal, pp. 131, 371, 1195; Globe, pp. 312, 1293, 4479. 
 
 2 Third session Fortieth Congress, House Report No. 18; 2 Bartlett, p. 467; Rowell's Digest, p. 225.
 
 § 543 CREDENTIALS AND PRIMA FACIE TITLE. 693 
 
 The co mm ittee is unable to find any good reason for the fixing of a place so unusual as was the one 
 in this instance for the holding of an election, and does believe from the evidence that coarse, improper, 
 vulgar, and threatening language was used by the friends and followers of the sitting Member, and 
 evidently for the purpose of intimidating and preventing persons from voting for the contestant; yet 
 the committee can not for such reasons recommend the throwing out of the whole vote of such precinct. 
 
 It appearing, however, that the poll book had been so altered as to give 100 
 votes to sitting Delegate more than he was entitled to, the committee corrected 
 the return. 
 
 (3) It appeared that pretended elections were held in several precincts which 
 had no legal existence in September, 1867, the time of the election, but were created 
 by the legislature of 1868. Therefore the committee were of opinion that the 
 entire votes of such precincts should be thrown out. 
 
 (4) It appeared — 
 
 That the poll books and abstract of the probate judge of Mora County were not by him sent to the 
 said secretary- of the Territory by a special messenger, as required by law, but came to the hands of Wil- 
 liam H. Moore, acting sutler within the militarj' reserA-ation and post of Fort Union, and were then 
 indorsed to Robert B. Mitchell, the governor of said Territory, and marked value $5,000, and put in the 
 charge of the civil express company carrvang the mails, and by said express conveyed to Governor 
 Mitchell, who produced the poll books and abstract to the secretarj' of said Territory. 
 
 The committee finds, upon reference to the Territorial law, a plain provision requiring the probate 
 judge of each county to forward to the secretary of the Territory, by special messenger, a true extract 
 of the votes cast in their respective counties, together with a poll book of each precinct, and from the 
 testimony of Vicente Romero and Henrj' V. Harris that the law of the Territorj- in this respect was 
 disregarded, which, to say the least, is censurable so far as the conduct of the officers in that behalf is 
 concerned, since there is much force in the argument of contestant's counsel in favor of throwing out 
 the entire vote of Mora County for the reason that a plain provision of the law was violated in the trans- 
 mission of the returns from that county, and especially when considered in connection with the e\'idence 
 that seems to point toward the presumption that the returns as forwarded were tampered with upon 
 the way, and the additional fact in evidence that in two districts or precincts in said county the vote 
 of 1867 amounted to 948, although in 1866 the same precincts were in one and polled but 337 votes. 
 
 (5) In Bernalillo precinct, in the county of that name, the majority was 
 declared for the contestant from an addition of the poll books without counting the 
 votes in the ballot box, and although there was no evidence that the retiuTis were 
 incorrect or fraudulent, yet the committee recommended that the majority of 139 
 returned for the contestant from this precinct be stricken out. 
 
 (6) The committee also deducted the vote of Chilili precinct because " the poll 
 books were not authenticated by a proper certificate required by law." 
 
 The report was debated at length on February 20,' and on that day the reso- 
 lutions as reported, unseating Mr. Clever and seating Mr. Chaves, were agreed to — 
 ayes 105. noes 10. 
 
 Mr. Chaves then appeared and qualified. 
 
 543. In the Senate, in 1857, credentials regular in form were hon- 
 ored, although a memorial from the State legislature impeached the elec- 
 tion of the bearer. — On February 9, 18.5T,- the credentials of Graham X. Fitch 
 as Senator-elect from Indiana, were presented in the Senate. At the same time a 
 protest was presented from the senate of Indiana in impeachment of the election 
 
 'Journal, p. 405: Globe, pp. 1421, 1423, 1424; Appendix, p. 248. 
 
 ''Third session Thirty-fourth Congress, Globe, p. 626; Appendix to Globe, pp. 193-210.
 
 694 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 544 
 
 of Mr. Fitch. A question at once arose as to whether or not the oath should be 
 administered to Mr. Fitch on the prima facie evidence of the certificate. A long 
 and learned debate followed, covering the precedents of the Senate from its earliest 
 years, from the case of Mr. Kensey Johns, of Delaware, who in 1794 was not allowed 
 to take the seat on presentation of his credentials, down to the recent case of Mr. 
 Dixon, of Kentucky. It was held, on the one hand, that the credential, when it 
 did not on its face suggest a doubt, should allow the oath to be taken. On the 
 other hand, it was argued that the credential, being prima facie evidence, was liable 
 to be rebutted at any stage. 
 
 Finally, on February 10, on a motion to commit the credentials, a test vote 
 was had, and by a vote of yeas 12, nays 33, the motion to commit was disagreed 
 to. Thereupon the oath was administered to Mr. Fitch. 
 
 544. There being a question as to a Member's election, he was sworn 
 in and his credentials were referred to a committee with instructions. — 
 On December 1, 1902,' on the first day of the session, the Speaker administered 
 the oath of office to several new Members, including Mr. Carter Glass, of Virginia. 
 No question was raised at the time the oath was taken, but later Mr. Robert W. 
 Tayler, of Ohio, presented a resolution as follows: 
 
 Resolved, That the credentials this day presented by Carter Glass, esq., as Representative in the 
 Fifty-seventh Congress from the Sixth district of Virginia be, and tliey are hereby, referred to Com- 
 mittee on Elections No. 1, with direction to inquire and report with all convenient speed, whether 
 they are based upon returns of a lawful election for Members of Congress, held in Virginia, November 
 4, 1902, and upon what character of registration lists, and under color of what constitution or ordinances 
 said election was held; and whether at said election the right of franchise was accorded to all citizens 
 of Virginia alike, without regard to race or color; and whether any citizens of the United States who 
 were entitled to vote for Members of Congress at said election were, under color of any constitution, 
 law, statute, or ordinance, unlawfully deprived of their rights, privileges, and immunities secured to 
 them under the Constitution and laws. 
 
 Resolved, That said committee be empowered to hold its sessions at such times and places in or 
 out of the State of Virginia as it may seem best, and to summon before it and examine any and all 
 persons and papers which it may deem necessary to the investigation hereby provided for, and to employ 
 such stenographers and clerks as may be necessary to perform its business; and the expenses of such 
 inquiry and investigation shall be paid out of the contingent fund of the House on the voucher of the 
 chairman of said committee. 
 
 This resolution was referred to the Committee on Elections No. 1.^ 
 
 ' Second session Fifty-seventh Congress, Journal, p. 6; Record, p. 4. 
 
 ^On April 28, 1900 (first session Fifty-sixth Congress, Record, p. 4805), Mr. Francis R. Lassiter, 
 of Virginia, appeared at the bar of the House with credentials in due form entitling him to his seat as 
 Representative from the Fourth Congressional district of Virginia. 
 
 There had also been filed a protest against the seating of Mr. Lassiter, directed to "The Speaker 
 and Members of the House of Representatives," alleging defects in the vote in the district, and signed 
 by "James Selden Cowden, the candidate receiving the highest acknowledged opposition vote to Major 
 Lassiter." 
 
 The certificate and protest having been read, the Speaker, David B. Henderson, of Iowa, said: 
 
 "The time has not expired for the party whose communication has been read to file notice of con- 
 test, and the Chair sees no reason why the gentleman whose credentials have been read should not be 
 sworn in unless the House desires to take some action in the matter. [A pause.] The gentleman will 
 please come forward and take the oath." 
 
 Mr. Lassiter came forward, accompanied by Mr. Hay and Mr. Underwood, and was duly qualified 
 by taking the oath prescribed by law.
 
 § 545 CREDENTIALS AND PRIMA FACIE TITLE. 695 
 
 545. The Senate election case of Lane and McCarthy v. Fitch and 
 Bright, from Indiana, in the Thirty-fourth and Thirty-fifth Congresses. 
 
 The Senate decided that a person presenting credentials in due form 
 should be sworn in, although a question had been raised as to his elec- 
 tion. 
 
 In a State whereof the constitution required two-thirds for a quorum 
 of each house of the legislature, a Senator was elected by a majority 
 merely of the total membership of the two houses. 
 
 In the absence of a State or Federal law regulating election of Sen- 
 ators the Senate declined to hold that an election must be participated 
 in by each house in its organized capacity. 
 
 On February 9, 1857,' the credentials of Mr. Graham N. Fitch, of Indiana, for 
 the term ending March 4, 1861, were presented in the Senate, and at the same time 
 was presented a protest from the Senate of Indiana urging that he and Jesse D. 
 Bright had not in fact been elected. The oath was administered after debate as to 
 prima facie right of Mr. Fitch to be sworn, and the papers in the case were referred 
 to the Committee on the Judiciary. 
 
 On March 13 ^ Mr. Robert Toombs, of Georgia, submitted a report in favor of 
 an investigation of the question. With this report were two documents explana- 
 tory of the issues. The first was a memorial of certain members of the Indiana 
 house: 
 
 The undersigned, duly elected and qualified members of the house of representatives of the gen- 
 eral assembly of the State of Indiana, hereby protest against the pretended election of Jesse D. Bright 
 and Graham N. Fitch, on the 4th day of February, A. D. 1857, as Senators of the State of Indiana in the 
 Congress of the United States, the former for the six years from the 4th day of March next, and the latter 
 for the six years from the 4th day of March, 1855, by a portion of the senators and representatives of said 
 general assembly, for the following reasons: 
 
 First. There was no agreement of the two houses of the general assembly, by resolutions or other- 
 wise, to proceed to the appointment or election of Senators in Congress on said day, or any other day of 
 the present session of the general assembly. 
 
 Second. There was no joint convention of the two houses of the said general assembly on said day, 
 nor was there any law of the State authorizing a joint convention on that or any other day for the appoint- 
 ment or election of United States Senators; nor was there any resolution, or joint resolution, approved 
 or adopted by the two houses of the said general assembly, or either of them, authorizing such joint 
 convention. 
 
 Third. Said pretended joint convention was a mere assembly of a portion of the senators and repre- 
 sentatives of the said general assembly, not in a legislative capacity, but as individuals, without any 
 authority of law, without precedent in the history of legislature of the State, and having no legislative 
 sanction; and said senators and representatives, when so convened, had no more constitutional right to 
 appoint or elect Senators than any equal nmnber of private citizens of the State. 
 
 Fourth. There was not a constitutional quorum of either house of the general assembly present in 
 said pretended joint convention, there being only twenty-three senators and sixty-one representatives, 
 when, by the eleventh section of the fourth article of the constitution of this State, it requires two-thirds 
 of each house to constitute a quorum to do business, and when, by the law of the State, the number of 
 senators is fixed at fifty and the number of representatives at one hundred in said general assembly. 
 
 Fifth. Because the undersigned, as legally elected and qualified representatives in said general 
 assembly, have been deprived of their constitutional right to assist in the legal election of the Senators 
 in the Congress of the United States by said illegal, revolutionary, and unauthorized election. 
 
 'Third session Thirty-fourth Congress; Globe, pp. 626, 774; Appendix, pp. 193-210. 
 - Senate Report No. 2, third session Thirty-fourth Congress.
 
 696 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 545 
 
 Sixth. Because the legislature of Indiana, as such legislature, either by separate action of the two 
 houses, or otherwise, as such legislature, had no part or voice in such pretended elections, and the same 
 were in direct violation of the third section of the first article of the Constitution of the United States 
 and the fourth section of the said article. 
 
 Seventh. Because said pretended elections are wholly void. 
 
 Eighth. Because if said elections are held valid, such decision will destroy the legal existence of 
 the general assembly of this State, and install in its place any mob which may see proper to take forcible 
 possession of the house as a joint convention of the general assembly, without the concurrence of either 
 body, the sanction of the Constitution, or authority of law. 
 
 For these and other reasons which might be named the undersigned protest against the validity 
 of said pretended elections and ask that the Senate of the I'nited States may declare them null and 
 void. 
 
 Given under our hands this 4th day of February at Indianapolis, A. D. 1857. 
 
 Also this statement of Mr. Fitch: 
 
 The undersigned, a Senator of the United States from the State of Indiana, and now acting as 
 a duly qualified Senator of the United States, submits to the honorable the Judiciary Committee of 
 the body to whom the validity of his election has been referred, the following as points upon which 
 he believes and is advised that his own rights and the rights of his State require that evidence be 
 taken and be before the committee in order to enable them to decide understand ingly and justly in the 
 premises. 
 
 First. That he was elected to said office by a majority of all the members composing the legislature 
 of the State, they being then and for that purpose assembled in joint convention. 
 
 Second. That he was elected, whilst in such joint convention, by a majority of the legally quali- 
 fied members of the senate of the State and of the legally qualified members of the house of representa- 
 tives, respectively. 
 
 Third. That in order to ascertain the facts stated in the preceding point, he will be able, by evi- 
 dence, to show that three of the persons who are contesting his election were not then, and are not now, 
 legally members of the said State senate, and had no right whatever, under the laws and constitution of 
 the State, to be considered, or, in any particular, to act as members of that body; and that this was at 
 the time, and still is, well known to the other contestants. 
 
 Fourth. That in the organization of the State senate, according to the constitution, laws, and usage 
 of the State, the lieutenant-governor presides and superintends the admission of the members, and the 
 taking the required oaths of office. That upon this occasion, in violation of such constitution, laws, and 
 usage, the said three members, who were without the expressly required credentials of election, the cer- 
 tificate of the proper and only returning officer, and whose seats were also known to be contested, and 
 on grounds of fraud, also known to be true, were, by a presiding officer, chosen for the piu'pose by the 
 members of the senate, designated as Republicans, contrary to all law, and by naked wrong, directed, 
 notwithstanding, to be sworn in, and for the clear purpose, illegal and fraudulent in fact, of defeating 
 an election of Senators of the United States. 
 
 Fifth. That the said convention by whom, as hereinbefore alleged, the undersigned was elected a 
 Senator of the United States, was assembled in accordance with an express provision of the constitu- 
 tion of the State, and that, in accordance with the long and uniform usage of the State in that particu- 
 lar, the same was adjourned from day to day by the proper presiding officer thereof, and vested with the 
 authority so to adjoiun, and that each adjournment was made without objection by a majority of the 
 senate even considering the three persons aforesaid to have been members of that body being present. 
 
 Sixth. That there is not now, in said State, as the undersigned is advised, any law for the regula- 
 tion of the election of Senators of the United States, or in any way providing for the same; and that 
 according to the best professional and judicial opinions in the State, the election is to be made by the 
 convention of the legislature assembled under the constitution of the State, to count the votes and decide 
 upon the election of governor and lieutenant-governor, as a power necessarDy existing in the legislature, 
 and from the obligations of the State to elect Senators. 
 
 Seventh. That before the adoption of the present State constitution there was a law regulating 
 such election, and that although the same was no longer in force, the said convention did, as far as it was 
 possible, conduct the present election according to the provisions thereof.
 
 § 545 CREDENTIALS AND PRIMA FACIE TITLE. 697 
 
 The undersigned, in conclusion, submits what, indeed, must be obvious to the committee, that as 
 the witnesses and proofs to the matters above stated are only to be had in the State of Indiana, and can 
 only properly be obtained by careful examination, and under the superintendence of himself, that it 
 can not be in his power to procure it at this or the approaching extra session of the United States Senate, 
 even were he to abandon his duty as a Senator, which he has no right to do, and proceed at once to the 
 place where the testimony is to be had. He further submits, therefore, that the committee will so 
 dispose of the matter now as will enable him and the contestants at a future period to present the 
 entire case fairly and fully before them. 
 
 No action was taken before the expiration of the Congress. 
 
 At the first of the next session the papers were again referred to the Judiciary 
 Committee, and on January 21, 1858,' Mr. James A. Bayard, of Delaware, from 
 that committee, reported a resolution: 
 
 Resolved, That in the case of the contested election of the Hon. Graham N. Fitch and the Hon. 
 Jesse D. Bright, Senators returned and admitted to their seats from the State of Indiana, the sitting 
 members, and all persons protesting against their election, or any of them by themselves or their 
 agents or attorneys, be permitted to take testimony on the allegations of the protestants and the sitting 
 members touching all matters of fact therein contained, before any judge of the district court of the 
 United States, or any judge of the supreme or circuit courts of the State of Indiana, by first giving ten 
 days' notice of the time and place of such proceeding in some public gazette printed at Indianapolis. 
 
 Mr. Lyman Trumbull, of Illinois, submitted views of the minority: 
 
 The legislature of Indiana, called the general assembly, is composed of a senate of fifty members 
 and a house of representatives of one hundred members, and two-thirds of each house is, by the consti- 
 tution, required to constitute a quorum thereof. Each house is declared to be judge of the election 
 and qualification of its memVjers, and required to keep a journal of its proceedings. No regulation 
 exists by law in Indiana as to the manner in which memljers of the State senate are to be inducted 
 into office. No law or regulation is there existing providing the time, place, or manner of electing 
 United States Senators. 
 
 It appears by the journal of the senate of Indiana that on the opening of the senate at the meeting 
 of the legislature, January 8, 1857, forty-nine of the senators were present, and that all the newly elected 
 members were duly sworn, took their seats, and continued thereafter to act with the other senators till 
 the close of the session. The only absentee senator took his seat January 13, 1857. Protests were filed 
 contesting the seats of three of the newly elected members, which were afterwards examined and con- 
 sidered by the senate, and they were each found and declared to be entitled to seats, respectively, by 
 majorities more or less numerous, all which is entered upon and appears by the journal of said senate. 
 
 The State constitution makes it the duty of the speaker of the house of representatives to open 
 and publish the votes for governor and lieutenant-governor in the presence of both houses of the general 
 assembly. No provision exists by the constitution making such meeting or presence of the two houses 
 a convention, or providing any officers therefor, or authorizing or empowering the same to transact 
 any business whatever, except by joint vote forthwith to proceed to elect a governor or lieutenant- 
 governor in case of a tie vote. 
 
 Both houses being in session, the speaker notified them that he should proceed to open and publish 
 the votes for governor and lieutenant-governor on Monday, the 12th day of January, at 2.30 o'clock 
 p. m., in the hall of the house. Shortly before the hour arrived the president of the senate announced 
 that he would proceed immediately to the hall of the house of representatives; and thereupon, together 
 with such senators as chose to go, being a minority of the whole number thereof, he repaired to the 
 hall of the house of representatives, and there, in their presence, and in the presence of the members 
 of the house, the votes for governor and lieutenant-governor were duly counted and published by the 
 speaker, and A. P. Willard, the then president of the senate, was declared duly elected governor and 
 A. A. Hammon lieutenant-governor of said State. 
 
 At the close of this business, a senator present, without any vote for that purpose, declared the 
 meeting (by him then called a convention) adjourned to the 2d day of February, 1857, at 2 o'clock. 
 
 ' First session Thirty-fifth Congress, Senate Report No. 19.
 
 698 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 545 
 
 The senate hearing of this proceeding, on the 29th day of January, 1857, as appears by its journal, 
 passed a resolution protesting against the proceedings of said so-called convention, disclaiming all con- 
 nection therewith or recognizance thereof, and protesting against any election of United States Senators 
 or any other officer thereby. On the 2d of February, 1857, the president of the senate, with a minor- 
 ity of its members, again attended in the hall of the house, and without proceeding to any business, 
 and without any vote, declared the meeting (by him called a convention) adjourned until the 4th 
 day of February, 1857, at which time the president of the senate, with twenty-four of its members, 
 went to the hall of the house of representatives, and there they, together with sixty-two members of 
 the house, proceeded to elect two Senators of the United States, to wit, Graham N. Fitch and Jesse D. 
 Bright, they each receiving eighty-three votes, and no more, at their respective elections, twenty-three 
 of which votes were by members of the senate. 
 
 Against these elections so made protests by twenty-seven members of the senate of Indiana and 
 thirty-five members of the house of representatives of said State have been duly presented, alleging 
 that, in the absence of any law, joint resolution, or regulation of any kind by the two houses composing 
 the legislature of Indiana providing for holding a joint convention, it is not competent for a minority 
 of the members of the senate and a majority, but less than a quorum, of the members of the house of 
 representatives of said State to assemble together and make an election of United States Senators. 
 
 Of the tacts as herein stated there is no dispute, as we understand. 
 
 It is now alleged by the sitting Senators, respectively, as we understand the substance of their 
 allegations, in contradiction of the senate journal, that the three State senators whose seats were con- 
 tested were not legally elected and qualified; that they were without the expressly required credentials, 
 the certificate of the proper and only returning officer, and that they were, notwithstanding, directed 
 to be sworn in by a presiding officer chosen for the purpose by the members of the senate designated 
 as Kepublicans, for the clear purpose, illegal and fraudulent in fact, of defeating an election of Senators 
 of the United States. 
 
 Under these circumstances we object to the adoption of the resolution for the taking of testimony 
 to sustain these allegations, because the said election of United States Senators, so conducted, is obvi- 
 ously illegal and insufficient, and can not be cured by any proof of these allegations; and we insist that 
 the Senate should now proceed to a definitive decision of the question. 
 
 The report was debated on February 15 and 16, 1858,' resulting in agreement 
 to the resolution in amended form as follows: 
 
 Resolved, That in the case of the contested election of the Hon. Graham N. Fitch and the Hon. 
 Jesse D. Bright, Senators returned and admitted to their seats from the State of Indiana, the sitting 
 members, and all persons protesting against their election, or any of them, by themselves or their agents 
 or attorneys, be permitted to take testimony on the allegations of the protestants and the sitting mem- 
 bers touching all matters of fact therein contained, before any judge of the district court of the United 
 States, or any judge of the supreme or circuit courts of the State of Indiana, by first giving ten days' 
 notice of the time and place of such proceeding in some public gazette printed at Indianapolis: Pro- 
 vided, That the proofs to be taken shall be returned to the Senate of the United States within ninety 
 days from the passage of this resolution: And provided. That no testimony shall be taken under this 
 resolution in relation to the qualification, election, or return of any member of the Indiana legislature. 
 
 On May 24" Mr. George E. Pugh, of Ohio, from the Committee on the Judi- 
 ciary, submitted a report as follows : 
 
 The Committee on the Judiciary, to whom were referred the credentials of Graham N. Fitch and 
 Jesse D. Bright, Senators from the State of Indiana, together with the documents and testimony relative 
 to that subject, have had the same under consideration, and report, by resolution, as follows: 
 
 Resolved, That Graham N. Fitch and Jesse D. Bright, Senators returned and admitted from the 
 State of Indiana, are entitled to the seats which they now hold in the Senate as such Senators aforesaid, 
 the former until the 4th of March, 1861, and the latter until the 4th of March, 1863, according to the 
 tenor of their respective credentials. 
 
 ' First session Thirty-fifth Congress, Globe, pp. 698-710, 720-724. 
 2 Senate Report No. 275; Globe, p. 2353; 1 Bartlett, p. 629.
 
 § 546 CKEDENTLiLS AND PRIMA FACIE TITLE. 699 
 
 On June 1 1 ^ this resolution was debated at length, and on June 12,^ Mr. Hannibal 
 Hamlin, of Maine, proposed to amend the resolution by striking out all after the 
 word "resolved," and inserting: 
 
 That the case of Jesse D. Bright and Graham N. Fitch be recommitted to the Committee on the 
 Judiciary, with instructions to report specially the grounds on which the resolution is based declaring 
 said Bright and Fitch elected. 
 
 On motion by Mr. Tnmibtdl to amend the proposed amendment by striking 
 out all after the word "that" and inserting "in the opinion of the Senate, no election 
 of a Member of this body made by the legislature of a State consisting of two 
 branches is valid, when made in a meeting of indi-vidual members of both, unless 
 such meeting for that purpose was prescribed by law, or had been previously agreed 
 to by each house acting separately in its organized capacity, or is participated in 
 by a majorit}' of the members of each house, or is subsequently ratified in some 
 form b}' each house in its organized capacity," it was determined in the negative- 
 yeas 17, nays 26. 
 
 Mr. Hamlin's motion was then disagreed to — yeas 16, nays 34. 
 
 On motion by Mr. Trumbull to amend the resolution by inserting after the 
 word "are" and before the word "entitled" the word "not," it was determined in 
 the negative — yeas 2.3, nays 30. 
 
 Then the resolution reported by the Judiciary Committee was agreed to. 
 
 546. The case of Lane and McCarthy v. Fitch and Bright, continued. 
 
 In 1859 the Senate declined to admit claimants of seats to the privi- 
 leges of the floor. 
 
 A State legislature may not revise a decision of the United States 
 Senate that two persons have been duly elected Senators. 
 
 A decision of the Senate, made after examination of all the facts, as to 
 election of a Senator is judicial in its nature and final, precluding further 
 inquiry. 
 
 At the next session of Congress, on January 24, 1859,^ the Vice-President pre- 
 sented a memorial of the State of Indiana, by its senators and representatives in 
 general convention assembled, representing that it is the wish and desire of the 
 State that the Hon. Henry S. Lane and the Hon. William Monroe McCarty be 
 admitted to seats in the Senate of the United States as the only legally elected and 
 constitutionally chosen Senators of the State of Indiana; which was read and 
 referred to the Committee on the Judiciary. 
 
 On the same day ilr. William H. Seward, of New York, presented this reso- 
 lution, which, on January 26, was laid on the table after debate:'' 
 
 Resolved, That the Hon. Henry S. Lane and the Hon. William M. McCarty, who claim to have been 
 elected Senators from the State of Indiana, be entitled to the privileges of admission on the floor of the 
 Senate until their claims shall have been decided. " 
 
 On February 3, 1859,^^ Mr. James A. Bayard, of Delaware, submitted from 
 the Committee on the Judiciary a report reviewing the proceedings as to Messrs. 
 
 ' Globe, pp. 2923-2949. •* Globe, pp. 599-602. 
 
 2 Globe, p. 2981. « Senate Report No. 368. 
 
 ' Second session Thirty-fifth Congress, Globe, pp. 534, 535.
 
 1^-' '■ 
 
 I 
 
 700 PRECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 546 
 
 Fitch and Bright up to the consideration of the resolution declaring them entitled 
 to their seats, and continues: 
 
 The resolution was under consideration in the Senate, and fully debated at several subsequent 
 times, and was finally, after the rejection of several proposed amendments, passed by the Senate without 
 amendment or alteration. In the opinion of the committee, this resolution (no motion having been 
 made to reconsider it) finally disposed of all questions presented to the Senate involving the respective 
 rights of the Hon. Graham N. Fitch and the Hon. Jesse D. Bright to their seats in the Senate as Senators 
 from the State of Indiana for the terms stated in the resolution. It appears by the memorial that the ^'i 
 legislature of Indiana, at its recent session in December last, assumed the power of revising the final <; 
 decision thus made by the Senate of the United States under its unquestioned and undoubted consti- 
 tutional authority to "be the judge of the qualifications of its own members." Under this assumption, 
 it also appears by the journals of the senate and house of representatives of the State of Indiana, the 
 legislature of Indiana, treating the seats of the Senators from that State as vacant, proceeded, subse- 
 quently, by a concurrent vote of the senate and house of representatives of the State, to elect the Hon. 
 Henry S. Lane as a Senator of the United States for the State of Indiana, to serve as such until the 
 4th of March, 1863, and the Hon. William Monroe McCarty as a Senator for the same State, to serve as 
 such until the 4th of March, A. D. 1861. Under this action of the legislature of Indiana those gentle- 
 men now claim their seats in the Senate of the United States. 
 
 It may be conceded that the election would have been valid, and the claimants entitled to their 
 Beats, had the legislature of Indiana possessed the authority to revise the decision of the Senate of the 
 United States that Messrs. Fitch and Bright had been duly elected Senators from Indiana, the former 
 until the 4th of March, 1861, and the latter until the 4th of March, 1863. 
 
 In the opinion of the committee, however, no such authority existed in the legislature of Indiana. 
 There was no vacancy in the representation of that State in the Senate; and the decision of the Senate, 
 made on the 12th of June, 1858, established finally and (in the absence of a motion to reconsider) 
 irreversibly the right of the Hon. Graham N. Fitch as a Senator of the State of Indiana until the 4th 
 of March, 1861, and the right of the Hon. Jesse D. Bright as a Senator from the same State until the 4th 
 of March, A. D. 1863. 
 
 The decision was made by an authority having exclusive jurisdiction of the subject; was judicial 
 in its nature; and, being made on a contest in which all the facts and questions of law involving the 
 validity of the election of Messrs. Fitch and Bright, and their respective rights to their seats, were as 
 fully known and presented to the Senate as they are now in the memorial of the legislature of Indiana, 
 the judgment of the Senate then rendered is final, and precludes further inquiry into the subject to 
 which it relates. 
 
 There being, by the decision of the Senate, no vacancy from the State of Indiana in the Senate 
 of the United States, the election held by the legislature of that State at its recent session is, in the 
 opinion of the committee, a nullity, and merely void, and confers no rights upon the persons it assumed 
 to elect as Senators of the United States. 
 
 The committee ask to be discharged from the further consideration of the memorial of the legis- 
 lature of Indiana. 
 
 Mr. Jacob Collamer, of Vermont, presented views of the minority, on behalf 
 of himself and Mr. Lyman Trimibull, as follows : 
 
 The power of the Senate to judge of the election and qualification of its own members is unlimited 
 and abiding. It is not exhausted in any particular case by once adjudicating the same, as the power of 
 reexamination and the correction of error or mistake incident to all judicial tribunals and proceedings 
 remains with the Senate in this respect, as well to do justice to itself as to the States represented or 
 to the persons claiming or holding seats. Such an abiding power must exist, to purge the body from 
 intruders, otherwise any one might retain his seat who had once wrongly procured a decision of the 
 Senate in his favor by fraud or falsehood, or even by papers forged or fabricated. 
 
 In what cases and at whose application a rehearing will at all times be granted is not now necessary 
 to inquire; but when new parties, with apparently legal claim, apply, and especially when a sovereign 
 State, by its legislature, makes respectful application to be represented by persons in the Senate legally 
 elected, and insists that the sitting members from that State were never legally chosen, we consider that 
 
 M
 
 § 546 CREDENTIALS AND PRIMA FACIE TITLE. 701 
 
 the subject should be fully reexamined, and that neither the State, the legislature, nor the persons now 
 claiming seats can legally or justly be estopped, or even prejudiced, by any former proceedings of the 
 Senate to which they were not parties. 
 
 At the first session of the legislature of Indiana after the present sitting members were declared by 
 the Senate as entitled to their seats, and at the earliest time it could take action, it declared their pre- 
 tended election as inoperative and void, and that the State was in fact unrepresented; and they pro- 
 ceeded to elect H. S. Lane and William M. McCarty as Senators of the United States for said State, 
 according to the Constitution of the L'nited States; and they send here their memorial, alleging that the 
 present sitting members were never legally elected; and they show facts, in addition to what was here- 
 tofore presented to the Senate, tending, as they consider, to sustain this allegation. The said Lane and 
 McCarty present their certificates and claim their seats. We consider the matters stated in said memorial 
 as true. The said Lane and McCarty have presented their brief sustaining their claim to seats, which 
 is in the words following: 
 
 Brief of W. M. McCarty and Henry S. Lane, submitted to the Judiciary Committee of the Senate. 
 
 The State is entitled to the office. The legislature is her supreme instrument and donee of the 
 power to elect Senators. It is the creature of the constitution, which is the chart of its power, vested 
 only in two coordinate branches; a quonmi of two-thirds of the members is requisite to give either a 
 legal entity; each is equivalent in power, with an absolute veto on the power of the other. 
 
 The legislattire is a corporation aggregate, with only such power as its creator has seen fit to endow 
 it with, to be exercised in conformity to the laws of its birth. 
 
 To the joint wisdom and counsel of these colleges is the legislative power intrusted. It is not 
 parceled out to its component elements in integrals, neither is it vested in an amalgamated body of the 
 two. The one is erected as a banner to the other. The ordeal of both must be passed. This guaranty 
 against abuse can not be broken down without destroying one of the safeguards of our Government. 
 The sovereign voice is an unit. The power that utters it is an entirety — an invisible, intangible, artificial 
 person. The power is in the organism called "the general assembly," and not in the individual mem- 
 bers. It is not the rights or powers of the members, but the delegated trust powers of the State that are 
 wielded in senatorial elections or other exercises of legislative powers. Without a quoriun of either 
 house it did not exist — without either, the legislature did not exist, and without a legislature no election 
 would be had. 
 
 Now, the facts are that a quorum of neither house was present at the pretended election of Messrs. 
 Bright and Fitch, nor even a majority of the senate, nor did either house prescribe the time, place, or 
 manner of electing. 
 
 It is of the essence of legislative power that its exercise shall be free from all restraint; each body 
 free to deliberate and act in its duties; each entitled to its full powers. The facts are that the senate, 
 upon eight occasions, refused to go into joint convention with the house, and at no time consented. She 
 could not be compelled to merge her individuality, or surrender her veto power, or adopt the joint-vote 
 mode of electing Senators; or, in other words, dilute or annihilate her power, upon the mandate of the 
 house, as that would degrade her from an equal to an inferior. On the contrarj', she had the right to 
 determine the time, place, and manner, and did do it by resolution, to elect by separate vote, at a proper 
 time, in which the house never conctured. Where diverse duties are imposed, she must determine 
 which are most imperative and shall have priority. 
 
 The constitution of Indiana only provides for a joint convention upon the contingency of a tie vote 
 tor governor and lieutenant-governor. That contingency did not exist ; therefore the convention did not. 
 To say that a duty to form a joint convention creates it is as absurd as to say that the subpoena of a 
 witness works his presence, or the commands of the decalogue their observance. 
 
 Failing to get the senate into a joint convention, a false record of that pretended fact was made, to 
 be used as evidence, and which has been used as veritable and true, and the absolute verity and the 
 unimpeachable quality of a record claimed for the fabrication. 
 
 The resolves of the senate are those of the whole body. The mutinous senators who usurped the 
 name and power of the senate in said pretended convention were subject to arrest by order of that body 
 for absence, and the attempt to nullify the wiU of the majority by attempting a business at a time, place, 
 and in a manner vetoed by that body by a resolve, then unvacated and unrescinded. Said convention.
 
 702 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 546 
 
 if it existed, expired with the duty that called it into life. The president of the senate, when inaugu- 
 rated governor, his office as president of the senate expired, and with it that of his deputy president. 
 The president not only usurped the power to appoint a clerk — an office not known to the law and void — 
 who only authenticated this pretended election by interpolating it into the journal of the house. This 
 president, whose power expired with that of his creator, arrogated that of adjourning it to a fixed day; 
 in other words, commanding it to obey his arbitrary rescript; and, at a subsequent one, the more impe- 
 rious mandate commanded them to elect Senators, no agreement whatever having been had by the 
 house therefor as to time, place, and manner. 
 
 We aver that not only did no usage exist in Indiana, but that in no solitary instance was an election 
 had without the consent of both houses, fixing time, place, etc., by law or resolution. While said pre- 
 tended convention was in existence, but adjourned to a fixed day, numerous attempts were made in 
 both houses to create one by the members who voted for Messrs. Bright and Fitch, thus offering evidence 
 that they did not consider that one had been formed and was in existence. No forced convention could 
 be had. Mutual consent was necessary, and it was never had by a vote, which is the only mode of 
 altering the will of a legislative body. 
 
 The history of joint conventions in Indiana will also show that no other business was ever trans- 
 acted than that for which it was specially convened. And we insist that the validity oft he acts of a 
 joint convention is due to the separate action of the two houses as the general assembly. It is also 
 necessary to the validity of all elections by corporate bodies that notice be given of the time, etc., and 
 the journals of neither house show any such notice or any conventional agreement for the same. 
 
 Upon the facts and law above no legal election could have been had. 
 
 To sustain the title of Messrs. Bright and Fitch the constitution of Indiana, depositing her legisla- 
 tive power in two coordinate houses, must be broken down — that which requires two-thirds of the 
 members to exercise any of her attributes of sovereignty, and that one house can not coerce the other. 
 Not only is this election in defiance of these injunctions, but in the face of a positive dissent by one 
 branch, armed by the people with an absolute veto. But a presiding officer, who is no part of the 
 legislature, usurped the powers and prerogatives of the legislature; all the forms and guaranties with 
 which the people hedged in their legislative servant were disregarded, and it is claimed that the act is 
 as valid as if they had been observed. 
 
 To sustain Messrs. Bright and Fitch the constitution of Indiana is made a dead letter. Will the 
 Senate, the peculiar guardians of State rights, reared up for that especial purpose, exclude Indiana from 
 her weight and voice in it by instruments empowered by her? AVUl she be allowed to interpret her own 
 constitution and acts, or will the Senate, under any pretense, blot her out of the confederacy, and realize 
 all those fears portrayed by some of the framers of the Constitution by an absorption of and encroach- 
 ment upon State rights? 
 
 The legislative power enshrines and protects aU rights subject to its jurisdiction. Prior to the 
 confederation the several States owed this duty to their citizens. They did not stirrender it, but 
 intrusted it to the Federal for their better protection, with the right guaranteed them of a voice in the 
 Senate as a means of enforcing this duty through the Federal instrument. 
 
 We deny that imder a constitutional grant of power, with prescribed modes of its exhibition, that 
 you can. discriminate between elections and laws. The selection of a general, upon whose skill the fate 
 of an army or the country may depend, or of a judge upon whose legal attainments and integrity the 
 lives, liberties, and property of the citizen may depend, is of less moment than some petty law. 
 
 The same power is as requisite to the creation of the one as the other. 
 
 But it may be said that this question is res adjudicata. 
 
 We deny that our rights or title are barred by a decision had before they were created. 
 
 We deny that the judicial power of the Senate is capable of self-exhaustion. We deny that the 
 political right of the State is capable of aimihilation without annihilating the Constitution which 
 creates the right. 
 
 We insist that the right to judge of the election and qualification of members must continue while 
 the term continues. 
 
 The qualifications are continuing conditions of title. 
 
 We deny that courts are ever estopped by their own action. 
 
 We deny that sovereigns are estopped.
 
 § 546 CBEDENTIALS AND PRIMA FACIE TITLE. 703 
 
 We deny that Indiana was, prior to this time, a party to the proceedings of the Senate, or had 
 opportunity to allege or elicit the true facts. 
 
 We deny the power of the Senate, under the power to judge, to create Senators for Indiana. 
 
 We claim for her a superior knowledge of her own acts and grants. 
 
 We insist that the simple admission of a Senator to his seat upon credentials is a decision, and that 
 it was never pretended this precluded his ouster if his title were not good. 
 
 If the Senate have not power to exclude foreign elements at all times, it is not equal to the duties 
 intrusted to its guardianship. 
 
 And we will not believe that the Senate is the only tribunal on earth whose wrongs, once done, 
 are eternal and irrevocable. 
 
 W. M. McCakty. 
 H. S. Lane. 
 
 In the case of the State of Mississippi, in the House of Representatives in the Twenty-fifth Congress, 
 the power to reexamine a decision made on an election of Members was fully considered and decided. 
 
 On Februarj^ 14 ' the report was considered by the Senate, and an amendment 
 was proposed by Mr. Seward to amend the resolution to discharge the Gommittee 
 on the Judiciary by striking out all after "resolved" and inserting: 
 
 That Henry S. Lane and WiUiam M. McCarty have leave to occupy seats on the floor of the Senate 
 pending the discussion of the report of the Committee on the Judiciary on the memorial of the legislature 
 of Indiana declaring them her duly elected Senators, and that they have leave to speak to the merits of 
 their rights to seats and on the report of the committee. 
 
 On motion by Mr. Pugh to amend the amendment proposed by Mr. Seward, by 
 
 striking out all after "that" and inserting "the resolution of the Senate, adopted 
 June 12, 1858, affirming the right of Graham N. Fitch and Jesse D. Bright as Sena- 
 tors elected from the State of Indiana, the former imtil the 4th day of March, 1861, 
 and the latter until the 4th day of March, 1863, was a final decision of all the premises 
 then in controversy, and conclusive as well upon the legislature of Indiana, and all 
 persons claiming under its authority, as upon the Senators named in the resolution." 
 On motion by Mr. Harlan — 
 
 That all the papers in this case be recommitted to the Committee on the Judiciary with instruc- 
 tions to inquire whether Graham N. Fitch and Jesse D. Bright or Henry S. Lane and W. M. McCarty, 
 or any one of them, has been elected to the office of Senator of the LTnited States from the State of 
 Indiana as pro\'ided by the Constitution of the United States, and in accordance with the laws and 
 usages of the State of Indiana, and report the facts connected with and bearing on the supposed election 
 of each to the Senate, and that the contestants be allowed to appear at the bar of the Senate when such 
 report shall be made and argue their right to seats. 
 
 After debate, a division of the motion made by Mr. Harlan was called for by 
 Mr. Stuart; and the question being taken on the first division, viz, "that all the 
 papers in this case be recommitted to the Committee on the Judiciary," it was 
 determined in the negative — yeas 14, nays 32; so the motion to recommit with 
 instructions was disagreed to. 
 
 The question recurring on agreeing to the amendment proposed by Mr. Pugh 
 to the amendment proposed by Mr. Seward, it was determined in the affirmative — 
 yeas 30, nays 16. 
 
 On the question to agree to the amendment of Mr. Seward, as amended, it was 
 determined in the affirmative — yeas 29, nays 16. 
 
 ' Globe, pp. 1014-1019; Appendix, pp. 128-148.
 
 704 PRECEDENTS OF THE HOUSE OF EEPEESENTATIVES. § 547 
 
 On the question to agree to the resolution from the Gommittee on the Judiciary, 
 amended, as follows: 
 
 Resolved, That the committee be discharged from the further consideration of the memorial of the 
 State of Indiana, and that the resolution of the Senate adopted June 12, 1858, affirming the right of 
 Graham N. Fitch and Jesse D. Bright as Senators elected from the State of Indiana, the former until the 
 4th day of March, 1861, and the latter until the 4th day of March, 1863, was a final decision of all the 
 premises then in controversy, and conclusive as well upon the legislature of Indiana, and all persons 
 claiming under its authority, as upon the Senators named in the resolution. 
 
 It was determined in the affirmative — yeas 30, nays 15. 
 
 547. An instance wherein the House authorized an investigation 
 of the credentials and elections of persons already seated on prima facie 
 showing. 
 
 Instance wherein the House ordered examination of the title to a 
 seat on the strength of a memorial. 
 
 At the organization of the House on March 4, 187 1,' a question was raised 
 as to the swearing in of the Mississippi delegation, whose names were on the roll of 
 the Clerk. But after debate the House ordered the oath to be administered to them, 
 and the credentials to be referred to the Committee on Elections. 
 
 On April 17 - Mr. Luke P. Poland, of Vermont, from the Committee on Elections, 
 reported this resolution, which was agreed to by the House: 
 
 Resolved, That the Committee on Elections be authorized to take testimony in relation to the 
 credentials of the sitting Members from the State of Mississippi, the validity of the election under 
 which said Members claim seats, and the allegations touching the same, contained in the memorial of 
 A. C. Fisk, and that said committee, for that purpose, be authorized to send for persons and papers. 
 
 548. Certain instances wherein the House has referred credentials 
 to the Elections Committee, the oath not being administered to the 
 bearers.— On March 16, 1871,' the Speaker laid before the House the creden- 
 tials of Thomas H. Reeves, claiming to be a Representative at Large from the State 
 of Tennessee. The credentials were referred to the Gommittee of Elections, Mr. 
 Reeves not being sworn in. 
 
 On March 4 * the credentials of J. P. M. Epping, elected Representative at Large 
 from the State of South Carolina, were referred to the Gommittee of Elections, Mr. 
 Epping not being sworn in. 
 
 On March 7 ^ the credentials of R. T. Daniels, as Member at Large from Virginia, 
 were similarly referred to the Committee of Elections. 
 
 549. Federal law directs the issuance and prescribes the form of cre- 
 dentials of Senators-elect. — The Revised Statutes, section 18, provide: 
 
 It shall be the duty of the executive of the State from which any Senator has been chosen to certify 
 his election, under the seal of the State, to the President of the Senate of the United States. 
 
 The above law dates from July 25, 1866. 
 
 ' First session Forty-second Congress, Journal, p. 10; Globe, pp. 7-10. 
 
 -Journal, p. 178; Globe, p. 736. 
 
 ^ First session Forty-second Congress, Journal, p. 73; Globe, p. 132. 
 
 * Journal, p. 13; Globe, p. 11. 
 
 'Journal, p. 16; Globe, p. 16.
 
 § 550 CREDENTIALS AND PRIMA FACIE TITLE. 705 
 
 Section 19 of the Revised Statutes, dating also from July 25, 1866, provides: 
 
 The certificate mentioned in the preceding section shall be countersigned by the secretary of 
 state of the State.' 
 
 550. The Speaker declined to administer the oath to a person whose 
 prima facie right was under investigation by the House. — On February 15, 
 
 1884,- the House had under consideration the contested election case of Chal- 
 mers f. Manning. The resolution before the House was to discharge the com- 
 mittee from further consideration of the prima facie right to the seat, and to 
 this was pending a substitute declaring that Manning held perfect credenitals and 
 was entitled to be sworn in. 
 
 During the debate Mr. Andrew G. Curtin, of Pennsylvania, advanced to the 
 Clerk's desk, in company with Mr. Manning, and said: 
 
 I present Van H. Manning to be sworn in as a Member of this House upon the certificate of the 
 governor of Mississippi, attested by the broad seal of that great and loyal State. 
 
 A point of order being made, the Speaker^ said: 
 
 The Chair thinks it unnecessary to decide any point of order in this case, because the question 
 whether or not Mr. Manning is entitled to take the oath of office is the verj' question which the House 
 is now considering and upon which it is about to vote. Of course the Chair would not undertake to 
 administer the oath of office to any person claiming to be a Member-elect while the House is coiwidering 
 his right to a seat. 
 
 551. The Senate election case of David Turpie in the Fiftieth Con- 
 gress. 
 
 The Senate gave immediate prima facie effect to regular credentials, 
 although a memorial impeached the regularity and legality of the 
 election. 
 
 The Senate declined to inquire into the titles of the members and 
 presiding officer of a legislative body, the legality of the organization 
 being unimpeached. 
 
 On February 10, 1887,^ the President pro tempore laid before the Senate reso- 
 lutions adopted bj" a joint convention of the two houses of the general assembly of 
 the State of Indiana, reciting that at the joint convention of February 2, 1887, 
 Hon. Alonzo G. Smith, a member of the senate of the said assembly, had declared 
 that Hon. David Turpie had received a majority of all the votes cast in the said 
 convention for United States Senator; that the speaker of the house of representa- 
 tives presiding at the joint convention had declared that there had been no legal 
 election of a United States Senator, and that it was believed that there were enough 
 illegal votes cast for the said Hon. David Turpie to overcome the apparent majority 
 of votes cast for him. This document was referred to the Committee on Privileges 
 and Elections. 
 
 On February 16^ the President pro tempore presented "what pm-ported to be 
 
 ' Credentials of Members of the House are in forms prescribed by the laws of the several States. 
 
 ^ First session Forty-eighth Congress, Record, p. 1168; Journal, pp. 587, 588. 
 
 ' John G. Carlisle, of Kentucky, Speaker. 
 
 * Second session Forty-ninth Congress, Record, p. 1564. 
 
 ^Record, p. 1801. 
 
 .'5994— vol, 1—07 4.">
 
 706 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 551 
 
 the credentials of Hon. David Turpie, elected a Senator from the State of Indiana 
 for six years from the 4th of March next. " 
 These credentials were in form as follows : 
 
 The State of Indiana, Executive Department. 
 In pursuance ot the provisions of section 18 of the Revised Statutes of the United States, I, Isaac 
 P. Gray, governor of the State of Indiana, do hereby certify that the legislature of said State assembled 
 in joint assembly at 12 o'clock meridian on Wednesday, the 2d day of February, 1887, pursuant to 
 adjournment, to elect a Senator in Congress, to serve for a term of six years, commencing on the 4th day 
 of March, 1887; that the Hon. David Turpie, of the State of Indiana, received 76 votes, being a majority 
 of the votes of all the members of said joint assembly, and a majority of all the members elected to said 
 legislature, all the members elected to said legislature being present and voting; and the said David 
 Turpie was declared duly elected Senator in Congress, to represent the State of Indiana in Congress for 
 the said term of six years, commencing on the 4th day of March, 1887. 
 
 In witness whereof I have hereunto set my hand and caused to be affixed the seal of the State, at 
 the city of Indianapolis, this 9th day. of February, in the year of our Lord 1887, the seventy-first year 
 of the State, and of the independence of the United States the one hundred and eleventh. 
 
 Isaac P. Gray, 
 Governor of Indiana. 
 The above and foregoing is the certificate, and the signature thereto attached the genuine signa- 
 ture of Isaac P. Gray, governor. 
 
 Charles F. Griffin, 
 Secretary of State. 
 To Hon. John Sherman, 
 
 President of the Senate of the United States of America. 
 
 On motion of Mr. George F. Hoar, of Massachusetts, the paper was referred to 
 the Committee on Privileges and Elections. 
 
 On March 1, 1887/ at a later date in the same session, Mr. Hoar offered the 
 following, which was agreed to : 
 
 Ordered, That the Committee on Privileges and Elections be discharged from the further consid- 
 eration of * * *, a paper purporting to be the credentials of David Turpie, and a resolution of the 
 joint convention of the legislature of Indiana contesting the validity of the election of David Turpie as 
 United States Senator from that State. 
 
 On the same day, at a later time, Mr. Orville H. Piatt, of Connecticut, inquired 
 whether or not the action taken would have any effect on the question of accepting 
 the credentials. If it would have such effect, he proposed to make a motion to 
 reconsider. 
 
 Mr. Hoar replied : 
 
 Under the rules of the Senate all papers committed to any committee are to be returned to the files 
 of the Senate at the expiration of the Congress, and the function of the committee itself expires with the 
 Congress. If the credentials of Mr. Turpie had been retained by the Committee on Privileges and 
 Elections without action until noon on the 4th day of March, under the operation of that general rule 
 precisely the thing would have happened then that has happened this morning — that is, the paper 
 would have gone back to the files of the Senate and the committee would have been discharged from its 
 consideration. The only alternative to that course would have been an assumption by the committee 
 or by the Senate at the present session to deal with the credentials of a gentleman claiming to be a Sen- 
 ator-elect before the time had arrived for the beginning of his term, and before he had presented himself 
 to be heard upon the subject. 
 
 The Senate is a continuing body which was organized at the beginning of the Government in 
 1789, and that organization is to continue, as we fondly hope, until time shall be no more, certainly 
 
 'Record, pp. 2461, 2474.
 
 § 551 CREDENTIALS AND PRIMA FACIE TITLE, 707 
 
 until the destruction of the American Constitution. It is therefore possible that it might be within 
 the constitutional power of the Senate to determine in advance the right of a Senator to a seat upon 
 this floor, and it would be a violation of all constitutional precedent, and it would be, in my judgment, 
 a violation of the sense of justice and propriety of the Senate and of the American people. 
 
 The effect, therefore, of this report is simply to remand to the action of the Senate to be taken 
 after the 4th of March without prejudice — without being in the least affected by any action now (on) 
 any question which any person may see fit to raise, and that is all. No prejudice, for no prejudice 
 against any person who may conceive himself entitled to a seat on this floor hereafter will arise or has 
 arisen in consequence of the report of the committee or of the Senate in accepting it. 
 
 On March 3/ ilr. Benjamin Harrison, of Indiana, presented a memorial of 
 eighteen State senators of Indiana, and of the house of representatives of that 
 State, protesting against the alleged election of Mr. Tiirpie. This memorial was 
 laid on the table. 
 
 On December 5, 1887,- at the swearing in of Senators-elect, Mr. Turpie 
 appeared and took the oath without objection. But immediately thereafter ^Ir. 
 Hoar presented the memorial of a committee of members of the general assembly 
 of Indiana in regard to Mr. Turpie's election. This paper, together with all other 
 papers on file relating to the case, were referred to the Committee on Privileges 
 and Elections. 
 
 On Ma}' 14^ Mr. Hoar submitted the report of the committee, as follows: 
 
 Mr. Turpie received a certificate of his election from the governor of Indiana, which constitutes 
 a prima facie title to his seat, and has been admitted thereupon to take the oath. 
 
 The two houses of the legislature of Indiana, having failed to concur in the appointment of a 
 Senator, met in joint convention, and after sundry ballotings. in which no person had a majority of 
 the votes cast, a ballot was had in which Mr. Turpie received 2 more votes than all others. A quorum 
 of said joint convention and a quorum of each house was present and voted. The proceedings were 
 in all respects regular, and resulted in a valid election of Mr. Turpie, unless the facts which the 
 remonstrants offer to prove constitute a valid objection. 
 
 They offer to show, first, that, there being a vancancy in the office of lieutenant-governor, the 
 Hon. Robert S. Robertson was duly elected to fill such vacancy, and thereby became entitled by the 
 constitution and laws of Indiana to preside over the senate; but that, on the meeting of the senate 
 on the 6th day of January, 18S7, being the first day of the session of the legislature at which said alleged 
 election of Mr. Turpie took place, one Alonzo G. Smith usurped the office and function of such presiding 
 officer, was supported and maintained in such usurpation by a majority of said body, excluded Mr. 
 Robertson from said office and function, and continued so to preside and so to exclude Mr. Robertson 
 diuring all the sessions of said senate, including its attendance on said joint convention, until after the 
 said alleged election of Mr. Turpie. 
 
 Second. That before said alleged election the senate wrongfully, and for the purpose of obtaining 
 a majority for said Turpie in said joint convention, declared two members, who had been duly and 
 lawfully elected members thereof, not entitled to their seats, and declared two other persons, who had 
 not been duly and lawfully elected, to be entitled to such seats, and thereupon seated such persons, 
 and that this was done without right, without evidence, and without hearing or debate; and that said 
 persons so seated thereafter were present and voted for Mr. Turpie in said convention, and that without 
 such votes said Turpie would not have received a majority. 
 
 The committee are of the opinion that the facts offered, if proved, will not warrant the Senate 
 in declaring the sitting Member not entitled to his seat. There can be no doubt that the body in 
 question was the constitutional senate of Indiana. The journals of both houses of the legislature of the 
 State have been submitted to us. It appears that the body was recognized as the senate by the governor 
 and by the house of representatives. Statutes, to which its constitutional assent was necessary, were 
 enacted and have become part of the law of the State. 
 
 ' Record, p. 2627. ^ First session Fiftieth Congress, Record, p. 4. ^ Senate Report No. 1291.
 
 708 
 
 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 § 552 
 
 It seems to us that, without entering upon the (juestion whether there was a vacancy in the office 
 of lieutenant-governor which Mr. Robertson was duly elected to fill, the recognition of Mr. Smith by a 
 majority of the senate as its lawful presiding officer, and the recognition of the senate as a lawfully 
 organized I»dy l)y the other house as well as liy all its own members who remained and took part in its 
 legislative proceedings, and by the executive department, require us to consider it as the lawful senate, 
 lawfully organized so far as to be entitled to take part in the joint convention which elected a Senator 
 of the United States. 
 
 We also think that the judgment of the senate of Indiana as to the title of Messrs. Branahan and 
 McDonald, the two members in question, to their seats is binding upon the Senate of the United 
 States. This body is made by the Constitution the judge of the elections, qualifications, and returns 
 of its members. The senate of Indiana is likewise the judge of the election, qualifications, and returns 
 of its own members. We must determine all questions arising out of the proceeding of the electors. 
 But who sustain the character of electors is to be determined by the legislative body of the State. We 
 can not inquire into the motive which controlled its judgment. In rendering that judgment, whether 
 it shall give a hearing to parties, permit debate, examine witnesses, act upon evidence or without 
 evidence, are matters within its own discretion. If that discretion were exercised in the manner 
 charged by the remonstrants, a majority of the committee think that a great public crime was com. 
 mitted, for which the offenders are responsible to the people of Indiana. But we can not try the 
 question. 
 
 A majority of the committee do not mean to be understood as now committing ourselves to an 
 opinion upon the question whether the Senate can not refuse to admit to a seat a claimant who owes 
 his election to a legislative body which is itself the result of fraud or crime, which has overcome the 
 true will of the people, even if it have possessed itself of legislative authority, and of the technical 
 evidence of a rightful character, or whether the judgments of such a body as to the title to seats of its 
 individual members are entitled to any respect whatever. If that question shall hereafter unhappily 
 arise it will be dealt with on its own merits. The committee ask to be discharged from the further 
 consideration of the several memorials. 
 
 On May 15 ' the question of discharging the committee was debated. Mr. 
 William E. Chandler, of New Hampshire, took exception to the latter portion of 
 the report, which held that the judgment of the senate of Indiana was binding on 
 the Senate of the United States on the question at issue. It seemed to him that 
 the power of imseating Members might be carried to such an extent in a legislative 
 body that the Senate of the United States would be justified in reviewing the 
 decisions of the legislature. Mr. Hoar and others sustained the position of the 
 report. 
 
 The motion to discharge the committee was agreed to without division.^ 
 
 552. The Senate election case of La Fayette Grover, of Oregon, in tlie 
 Forty-fifth Congress. 
 
 The credentials of a Senator-elect being regular and unimpeached, 
 and the election having been by the one legally organized legislature, 
 
 ' Record, pp. 4145-4147. 
 
 2 In 1891 the Senate considered the case of Wilkinson Call, of Florida. December 7, 1891, R. H. M. 
 Davidson presented the credentials from the governor of Florida and at the same time a transcript of 
 the proceedings of the two houses of the legislature of Florida in a joint convention, composed of a 
 majority of the members of the two houses, but not of a majority of the members of each, recording 
 what purported to be the election of Wilkinson Call. Mr. Call presented himself on the same day, 
 claiming the right to take the oath by virtue of the proceedings of that joint convention. The facts 
 set forth in the transcript were undisputed. The matter went over under objection to the next day, 
 when Mr. Call was admitted to take the oath, on motion by Mr. Hoar, and the credentials were referred 
 to the Committee on Privileges and Elections. (Election Cases, Senate Doc. No. 11, special session 
 Fifty-eighth Congress, p. 805.)
 
 § 552 CREDENTIALS AND PRIMA FACIE TITLE. 709 
 
 the Senate seated the bearer at once, although charges were filed against 
 him personally. 
 
 Discussion of the elements of a prima facie case as made out by the 
 credentials of a Member-elect. 
 
 On March 2, 1877,' in the Senate, the credentials of La Fayette Grover, elected 
 a Senator by the legislature of Oregon for the term commencing March 4, 1877, 
 were presented. 
 
 On March 7, 1877,' Mr. Grover presented himself to be sworn, when Mr. Hannibal 
 Hamlin, of Maine, stated that Mr. John H. Mitchell, Senator from Oregon, had cer- 
 tain papers relating to Mr. Grover's title to the seat, and suggested that the oath 
 be deferred until Mr. Mitchell should be present. 
 
 Later in the day Mr. Mitchell presented the following memorial : 
 
 To the Senate of the United States: 
 
 Whereas it is currently reported and generally believed that L. F. Grover, by bribery, the corrupt 
 use of money, and other unlawful and dishonorable means, procured his election to the Senate of the 
 United States by the legislature of the State of Oregon at its last session; and 
 
 Whereas the said L. F. Grover, in obedience to a corrupt scheme to defraud the State of Oregon 
 of its proper electoral vote, as the governor thereof did unlawfully, dishonestly, corruptly, and by acta 
 of usurpation, declare elected to the office of Presidential elector for the State of Oregon, on the 6th 
 day of December, 1876, and did issue a certificate of election to one E. A. Cronin, who had been defeated 
 by the people for said office by more than 1,000 majority; and 
 
 Whereas the said L. F. Grover did fraudulently undertake to sustain his said act by falsely tes- 
 tifying as a witness concerning the same before the Senate Committee on Privileges and Elections on 
 or about the 6th day of January, 1877: 
 
 Now, therefore, we, the undersigned, citizens of the State of Oregon, earnestly but respectfully 
 ask that the said L. F. Grover be denied a seat in the United States Senate as a Senator from the State 
 of Oregon imtil the foregoing charges are thoroughly investigated and disproved. 
 
 M. L. WiLMOT and others. 
 
 On March 8,^ at the suggestion of Mr. Aaron A. Sargent, of Pennsylvania, and 
 after modification by Mr. Roscoe Conkling, of New York, this resolution was pre- 
 sented by Mr. William A. Wallace, of Pennsylvania: 
 
 Whereas, under the Constitution and the laws and the practice of the Senate, La Fayette Grover, 
 claiming to be a Senator from the State of Oregon — his credentials being regular and in due form and 
 there being no contestant for the seat — and there being in said State but one body claiming to be the 
 legislature, and but one person claiming to be the governor, and there being no doubt or dispute as to 
 the existence of one legal, rightful State government, is entitled to admission to a seat in this body, 
 on the prima facie case presented by such credentials, notwithstanding the objections contained in the 
 petition of citizens of the State of Oregon against his admission: Therefore, 
 
 Resolved, That the credentials of La Fayette Grover be taken from the table and the oaths of 
 office be now administered to him. 
 
 Resolved further, That the petition of citizens uf Oregon containing charges against La Fayette 
 Grover lie on the table until the Committee on Privileges and Elections is organized, when they shall 
 be referred to such committee, together with his credentials, with instructions to investigate such 
 charges and report to the Senate as to their truth or falsity. 
 
 Mr. Conkling had suggested the words "and there being in the said State but 
 one body claiming to be the legislature, and but one person claiming to be governor." 
 
 ' Second session Forty-fourth Congress, Record, p. 2069. 
 
 -Special session of Senate, Forty-fifth Congress, Record, pp. 17, 22. 
 
 ^ Record, pp. 31-39.
 
 710 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 553 
 
 In the debate Mr. Conkling went on to show that the condition set forth in 
 these words constituted an essential element of a prima facie case. Mr. Oliver P. 
 Morton, of Indiana, did not concur in the idea that these words should be followed 
 to their idtimate significance. "A prima facie case, as I understand it," he said, 
 "is one which is regular upon its face — good upon its face according to the law 
 of the State from which it emanates. The idea that the existence of a pretended 
 legislature can invalidate the effect and value of a prima facie case seems to me to 
 be a contradiction in terms. If a Senator of the United States or a person elected 
 to the Senate comes here with the certificate of the governor and the proper cre- 
 dentials according to the forms of law, his prima facie case is not invalidated if 
 some other person presents a certificate which is not signed or executed according 
 to the forms of law." 
 
 The question being taken on the preamble and the first resolution, they were 
 agreed to without division. 
 
 The second resolution was withdrawn, on the assurance that at a later day 
 Mr. Grover proposed to demand an investigation. 
 
 553. The election case of James H. McLean, from Missouri, in the 
 Forty-seventh Congress. 
 
 The State authority having declined to issue credentials to a person 
 whose election was not disputed, the House administered the oath to 
 him on satisfying itself of his election. 
 
 Where the fact of election was not disputed the House seated a Mem- 
 ber-elect without reference to the Elections Committee, although the 
 State authority had denied him credentials. 
 
 On December 15, 1882,' Mr. Thomas B. Reed, of Maine, claiming the floor for 
 a question of privilege, presented the memorial of James H. McLean, which set 
 forth that a vacancy was caused in the Second Congressional district of Missouri by 
 the death of Thomas Allen on April 7, 1882 ; that on November 7, 1882, at an election 
 duly called by the governor of the State, for the said Second district, there were cast 
 8,264 votes for the memorialist, 8,087 for James D. Broadhead, and 362 for B. A. 
 Hill, the said memorialistthereby receiving the highest number of votes; = "that the 
 abstracts of the votes so cast and duly certified were forwarded to the secretary' of 
 state of Missouri, where the same are required by law to be sent, but that the secre- 
 tary of state of said State has failed and utterly refuses to give your memorialist a 
 certificate of his election as aforesaid." With the memorial were presented two 
 certificates from the county clerk and recorder, giving the abstract of the votes cast. 
 
 It appeared from the remarks of Mr. Reed and from uncontradicted statements 
 of Representatives from Missouri that there was no doubt as to the correctness of 
 these returns; and that Mr. Broadhead, the rival candidate, did not contest the fact 
 that Mr. McLean was elected. 
 
 It appeared that under the law of Missouri it was the duty of the secretary of 
 state to issue the credentials, but that he had declined to do so, apparently for the 
 
 ' Second session Forty-seventh Congress, Record, pp. 328-331. 
 
 -The highest number of votes was required for election in Missouri, although the memorial did 
 not so specify.
 
 § 554 CREDENTIALS AND PRIMA FACIE TITLE. 711 
 
 reason that the State had been redistricted after the election of Thomas Allen and 
 before the special election called to fill the vacancy caused by his death; but nothing 
 before the House indicated whether the governor had called the special election in 
 the old or the new district. For this reason especially Mr. Richard D. Bland, of 
 Missouri, urged that the memorial should be referred to the committee on credentials 
 for examination, but Mr. Reed pointed out that tbe only reason why Mr. McLean 
 was not sworn in without dissent was because the secretary of state had declined to 
 do his duty, since no one, not even his opponent, doubted his right to the seat. 
 There was not time for Mr. McLean to compel the secretary of state by mandamus 
 to issue the certificate, and in justice to Mr. McLean and the constituency who 
 elected him he shoidd be given the seat at once. 
 
 The House voted — ayes 144, noes 15 — that Mr. McLean should be permitted to 
 take the oath, and he appeared and qualified. 
 
 554. The Pennsylvania election case of Morris v. Richards in the 
 Fotirth Congress. 
 
 The governor having declined to issue credentials because of doubt 
 as to the election, the House, in 1796, determined the final right before 
 seating the one surviving claimant. 
 
 An election return, required by law to be made on or before a certain 
 day, should be counted if presented after that day, provided it be other- 
 wise correct. 
 
 A vote not returned within the time required by law, and of which 
 the returns were not in the required form, was rejected. 
 
 A return seasonably made and in legal form, but giving certain proxy 
 votes and votes of persons disqualified, w^as purged and not rejected. 
 
 On January 18, 1796,' the House decided that John Richards, of Pennsylva- 
 nia, was entitled to a seat in the House. 
 
 This was a case in which the governor of Pennsylvania, after the election, had 
 issued no certificate because he was in doubt whether James Morris or John Richards 
 was elected. Mr. Morris died before the meeting of Congress. After Congress 
 assembled Mr. Richards petitioned for the seat. 
 
 The committee foimd that, by the law of Pennsylvania, the county judges of 
 election were required to meet on November 10, and that the district judges should 
 meet on November 15, to examine the count}" returns and certif}" the result. Cer- 
 tain of the voters were away on the western expedition, so it was provided that 
 army returns should be sent to the prothonotaries of the respective counties by the 
 said 10th of November, and that on that day the prothonotaries should deliver 
 them over to the comity judges. The retm-n of the Montgomery County soldiers 
 was received by the prothonotary after the 10th and before the 15th, and by him 
 delivered over to some of the coimty judges, two of whom made up a return and 
 certified it on the 14th. This retxmi was laid before the judges of the district on 
 the 15th, but was not coimted by them. The Committee on Elections reported, 
 however, that the district judges should have counted this retimi, in spite of the 
 
 ■ First session Fourth Ciongress, Contested Elections in Congress from 1789 to 1834, p. 95; 
 Rowell's Digest, p. 45.
 
 712 PRECEDENTS OF THE HOUSE OF REPBESENTATIVES. § 555 
 
 informality.' It also appeared that the vote of the Bucks County soldiers, not 
 being returned before the 15th of November and not being canvassed by the dis- 
 trict judges, was filed with the secretary of state on January 18, 1795. These returns 
 were also defective on their face, being unaccompanied by a list of names of those 
 voting. So the Committee on Elections reported that this return should not be 
 counted. It further appeared that the return of the Northampton soldiers, which 
 alone was properly received before the required date, November 10, contained 2 
 proxy votes and 16 votes of persons evidently not qualified to vote. These 16 
 votes were for James Morris. 
 
 The Committee on Elections, therefore, by counting the Montgomery return, 
 rejecting the Bucks return and the 18 unauthorized votes in Northampton, found 
 that John Richards was duly elected. 
 
 The House, in accordance with this finding, seated Mr. Richards. 
 
 555. The Pennsylvania election case of John Sergeant in the Nine- 
 teenth Congress. 
 
 Two candidates having equal numbers of votes, the governor did 
 not issue credentials to either, but ordered a new election after they 
 had waived their respective claims. 
 
 Candidates at an inconclusive election having waived their claims, 
 the House held that the result of a new election might not be disturbed 
 because of alleged errors in the first election. 
 
 Instance of an election case instituted by sundry citizens. 
 
 On January 14, 1828,^ the Committee on Elections reported in the case of sun- 
 dry citizens v. Sergeant, of Pemisylvania, 
 
 At the election of October 10, 1826, John Sergeant and Henry Horn had an 
 equal number of votes. It appearing that the people had failed to make a choice, 
 the executive seems to have considered the case in the light of a vacancy, but not 
 to an extent sufficient to warrant him in directing another election until both Mr. 
 Sergeant and Mr. Horn informed him in writing that they relinquished all claims 
 to the seat in virtue of the election of 1826. In consequence of this letter the 
 governor ordered an election to supply the vacancy, to be held on October 9, 1827. 
 
 At that election it appeared that John Sergeant was duly elected. 
 
 But the memorialists alleged that the rectification of an error which they 
 poiated out in the count of the election of 1826 — the first election — would show 
 the election of Henry Horn. 
 
 Certain letters and ex parte depositions were submitted to the committee and 
 decided insufficient to invalidate the rights of the sitting Member. The committee 
 asserted that they thought it quite unnecessary to go into an investigation of the 
 rights of the parties under the fu'st election, because, whatever those rights were, 
 they had been voluntarily relinquished. Therefore the committee reported the fol- 
 lowing resolution, which was agreed to without debate or division : 
 
 Resolved, That John Sergeant is entitled to a seat in this House. 
 
 ' In a first report, which was recommitted, it was held that these returns should bo rejected. 
 2 First session Nineteenth Congress, Contested Elections in Congress from 1789 to 1834, p. 516; 
 Rowell's Digest, p. 85.
 
 § 556 CKEDENTIALS AKD PKIMA FACIE IIXLE. 713 
 
 556. The Pennsylvania election cases of Koontz v. Coffroth. and Ful- 
 ler V. Dawson in the Thirty-ninth Congress. 
 
 Conflicting returns rendering it impossible for a governor to issue 
 any credentials, the Clerk enrolled neither claimant to the seat. 
 
 Neither claimant to a seat having credentials, the House referred 
 the papers with instructions that the prima facie right be determined, 
 without prejudice to a later contest on the merits. 
 
 In determining prima facie right the majority of the Elections Com- 
 mittee, in a sustained report, declined to consider papers other than 
 those coming legally from the proper certifying officers of the district. 
 
 The House, acting on a divided report, determined the prima facie 
 right by the returns of the district certifying officers, although they 
 were impeached by accompanying papers. 
 
 Form of resolutions for seating a claimant on prima facie showing 
 and for the institution of a contest on the merits. 
 
 On December 5, 1865,' the House agreed to the following resolution: 
 
 Resolved, That the certificates and all other papers relating to the election in the Sixteenth Con- 
 gressional district of Pennsylvania be referred to the Committee of Elections, when appointed, with 
 instructions to report, at as early a day as practicable, which of the rival claimants to the vacant seat 
 from that district has the prima facie right thereto, reserving to the other party the privilege of contesting 
 the case upon the merits, without prejudice from lapse of time or want of notice. 
 
 On January 26, 1866,^ the Committee of Elections reported. In this case the 
 names of neither Mr. Coffroth nor Mr. Koontz, the rival claimants for the seat, had 
 been put on the Clerk's roll, for the reason that the governor of Pennsylvania, in 
 his proclamation of the names of the persons elected in the various Congressional 
 districts, had declared — 
 
 that no such returns of the election in the Sixteenth Congressional district have been sent to the secretary 
 of the Commonwealth as would , under the act of assembly of July 2, A. D. 1839, authorize me to proclaim 
 tlie name of any person as having been returned as duly elected a Member of the House of Representa- 
 tives of the United States for that district. 
 
 The act of July 2, 1839, provided the following method for returning the results 
 of an election in a Congressional district, as stated by the report: 
 
 When two or more counties compose a district for the choice of a Member of the House of Represen- 
 tatives of the United States, it is provided, after an election has been held, that the judges of election in 
 each county having met, the clerks shall make out a fair statement of all the votes which shall have been 
 given at such election, within the county, for every person voted for as such Member, which shall be 
 signed by said judges and attested by the clerks; and one of the said judges is to take charge of said cer- 
 tificates of votes, and produce the same at a meeting of one judge from each county, at such place in such 
 district as is, or may be, provided by law for that purpose. The judges of the several counties (com- 
 posing such district) having met as aforesaid, are then required to cast up the several county returns and 
 make duplicate returns of all the votes given for such office of Representative in Congerss in said district, 
 and of the name of the person elected, and to deposit one of said returns for said office of Representative 
 in the office of the prothonotary of the court of common pleas of the county in which they shall meet, 
 and to place the other return in the nearest post-office, sealed and directed to the secretay of the 
 Commonwealth. 
 
 ' First session Thirty-ninth Congress, Journal, p. 32; Globe, p. 10. 
 = 2 Bartlett, p. 25; House Report No. 12.
 
 714 PRECEDENTS OF THE HOUSE OF KEPEESENTATIVES. § 556 
 
 The said return judges are also required to transmit to the person elected to serve in Congress a 
 certificate of his election, within five days after the day of making said return. 
 
 On the receipt of the return of the election of Members of the House of Representatives of the 
 United States, as aforesaid, by the secretary of the Commonwealth, the governor is required (section 
 113) to declare, by proclamation, the names of the persons so returned as elected in the respective dis- 
 tricts, and also to transmit, as soon as conveniently may be thereafter, the returns so made to the House 
 of Representatives of the United States. 
 
 There were five counties in the district — Adams, Bedford, Franklin, Fulton, and 
 Somerset. 
 
 In each of the three last counties all of the precinct judges united in certifying 
 the results, and there was no question as to them. But in Franklin County there was 
 a difficulty as to the selection of the judge who should present the return of the 
 county at the meeting of the district board. Mr. Wilhelm was at first chosen, but 
 later this action was rescinded and Mr. Laker was chosen, and appears to have 
 become the actual possessor of the return. 
 
 In Adams and Bedford counties there was a difficulty about the counting of the 
 soldiers' votes, and the return from each of these counties was certified by a majority 
 only of the precinct judges. In each of these counties the minoritj' judges made 
 another return. 
 
 The next complication occurred when the board of district judges (composed of 
 one judge from each coimty, bearing the return of his county) met to make up the 
 district return. In fact two boards met — a Coffroth and a Koontz board. 
 
 The Koontz board appears to have been composed of the two representatives 
 of the minority judges in Adams and Bedford counties; of Mr. Wilhelm, the super- 
 seded representative of Franklin Coimty; of Mr. Winter, the regular representative 
 of Fulton County, who later attended the Coffroth board; and Mr. Willis, the lawful 
 bearer of the undisputed return of Somerset County, who did not attend the Coffroth 
 board at all. This Koontz board made the return in the form required of the 
 district board, and the return was transmitted to the State authorities in regular 
 order. This return showed a majority of 32 votes for Mr. Koontz. 
 
 The Coffroth board, which assembled later in the day, was composed of the two 
 majority judges of the counties of Adams and Bedford, of Mr. Laker, the last-chosen 
 representative judge of Franklin County, and of Mr. Winter, the regular representa- 
 tive of Fulton County. This board made out in regular form a district return, and 
 transmitted it to the State authorities in the regular way. This return showed 
 a large majority in favor of Mr. Cafl'roth, but also showed on its face that the return 
 of the county of Somerset was not included. 
 
 In point of fact, although it did not officially appear on this district return, the 
 vote of Somerset County, which was imdisputed, would have reduced but not over- 
 come the majority showed for Mr. Coffroth by the other four counties. Mr. 
 Coffroth's majority on this basis was 93 for the whole district. 
 
 The attorney-general of Pennsylvania, in an opinion given to the governor, 
 maintained that the action of a majority of the return judges of a county was to be 
 presumed to be valid; but also held that the district judges should have by adjoin- 
 ment endeavored to procure the complete return, including the county of Somerset. 
 
 The Committee on Elections, acting under direction of the House, examined the 
 question as to where they should look for the prima facie title to the seat, and in 
 
 I
 
 & 556 CREDENTIALS AND PRIMA FACIE TITLE. 715 
 
 their conclusions the committee divided, a bare majority concurring in the report. 
 The majority say: 
 
 The retxim certified by the majoritj- certainly embraces the covinties of Adams, Bedford, Franklin, 
 and Fulton, and is an official certificate of all the returns presented, and of the aggr^ate returns of 
 votes from these counties; and as the vote of Somerset County is undisputed and would not have changed 
 the result, we see no occasion or justification, on a prima facie hearing, for going beyond the action of 
 these return judges who met on the day and at the place fixed by law, and did all that the law required 
 them to do. 
 
 If, however, we should waive this position and go beyond, not behind, the action of the district 
 return judges, it would only be to ascertain the vote of Somerset County; and that being obtained and 
 added to the other certified returns, as we have seen, still gives Mr. Coffroth the certified majority of all 
 the votes cast in the district and the prima facie right to the seat. 
 
 Clearly the district board of return judges had no right to go behind the certified returns brought 
 by each rettim judge from his coimty, and in determining a prima facie right to a seat the same rule would 
 seem applicable to and binding upon the Committee on Elections and the House. But suppose we should 
 see fit, in violation of this rule, to go behind the action of the district return judges, we come then next 
 to the certified returns of the several boards of county return judges of each county in the district, which 
 returns were not separately before the governor. In three of these, ^dz, Franklin, Somerset, and Fulton, 
 all of the return judges unite in certifj-ing the result, and the claimants each admitted before the com- 
 mittee, that on this hearing of a claim to the prima facie right to the seat , neither of them could go behind 
 any one of these three returns thus certified. 
 
 The home vote of Bedford County is also certified by aU of the return judges, and is undisputed 
 by the claimant, but the soldiers' vote of Bedford County is certified by a majority of the return judges, as 
 318 for Koontz, and 94 for Coffroth, while the minority of the return judges sign another return, which, 
 of course, is of no validity. 
 
 A majority of the return judges of Adams County certifj- to the returns of votes cast in that county, 
 including the soldiers" vote, giving Coffroth 2,707 votes, and Koontz 2.366. 
 
 The minority sign another return, purporting to include the home vote and the soldiers' vote, but 
 nothing appears on the face of the majority return, from either Adams or Bedford County, to show but 
 what they constitute the whole board of return judges present for each of said counties. 
 
 The majority of the committee also say: 
 
 But it is claimed, on the part of Mr. Koontz, not only that the act of the majority of the county 
 return judges in certifying these returns from Adams and Bedford is void, but that the Com mi ttee on 
 Elections and the House, in this investigation of the prima facie right to the seat , may not only go behind 
 these returns from Adams and Bedford, but also, in effect, behind the unanimous returns of all the other 
 counties of Franklin, Fulton, and Somerset, so far as the soldiers' vote is concerned. The statement 
 of such a proposition on an investigation of this kind would seem to be sufficient for its own refutation. 
 It would be attempting to hear the case on the merits, without gi\ing the claimants the opportunity of 
 presenting their evidence in full; would be utterly disregarding all credentials, and would obliterate all 
 distinction between a prima facie right on the certificates and papers from the proper certif>"ing officers 
 and a claim founded on the merits on a full hearing of all the evidence that might be adduced by either 
 claimant in support of his claim. (See case of Jayne v. Todd, vol. 1, p. 1, Reports of Committees, first 
 session Thirty-eighth Congress.) 
 
 It should be borne in mind that by the resolution of the House referring this case to the committee, 
 the committe are restricted in their first examination and report to the prima facie right of either claimant 
 to the seat; and the committee are to determine this from the certificates and papers referred to them, 
 including always the admission of the claimants themselves before the committee; but only those papers 
 are to be considered which come from the proper certifying officers, and which those officers are author- 
 ized by law to make, and also which are pertinent to the case. 
 
 Many papers have been referred to the committee which, on this hearing, are not evidence for any 
 purpose. 
 
 From the legal certificates and returns of the district and county boards of return judges in this case, 
 no thin g appears in relation to the rejection of any soldiers' votes; and those who all^e such rejection are
 
 716 PRECEDENTS OF THE HOUSE OF REPBESENTATIVES. § 557 
 
 compelled to look outside of these certificates and returns and resort to papers and statements which 
 are not legitimate evidence on this investigation and which, without further proof, would few, if any 
 of them, be evidence of themselves on the hearing of a contest on the merits. 
 
 The committee therefore recommended the following resolution : 
 
 Resolved, That Alexander H. Coffroth, upon the certificates and papers relating to the election in 
 the Sixteenth Congressional district of the State of Pennsylvania, has the prima facie right to the vacant 
 seat from that district and is entitled to take the oath of office and occupy a seat in this House as the 
 Representative in Congress from said district, without prejudice to the right of William H. Koontz, claim- 
 ing to have been duly elected thereto, to contest his right to said seat upon the merits. 
 
 Resolved, That William H. Koontz, desiring to contest the right of Hon. Alexander H. Coffroth to 
 a seat in this House as a Representative from the Sixteenth district of the State of Pennsylvania, be, and 
 he is, required to serve upon the said Coffroth, within fifteen days after the passage of this resolution, a 
 particular statement of the grounds of said contest, and that the said Coffroth be, and he is hereby, 
 required to serve upon the said Koontz his answer thereto within fifteen days thereafter, and that both 
 parties be allowed sixty days next after the service of said answer to take testimony in support of their 
 several allegations and denials, notice of intention to examine witnesses to be given to the opposite party 
 at least five days before their examination, but neither party to give notice of taking testimony within 
 less than five days between the close of taking it at one place and its commencement at another, but in 
 all other respects in the manner prescriljed in the act of February 19, 1851. 
 
 The minority of the committee took the view that neither claimant had showed 
 a prima facie case. The proclamation of the governor of Pennsylvania, which 
 would have been the best evidence, showed that no such returns had been received 
 as would authorize him to proclaim anyone elected. The return of the board of 
 district judges transmitted by the governor would establish such a prima facie right 
 if unimpeaclied. 
 
 But neither by a return of the district board to the secretary of the common- 
 wealth, nor by a certificate of that board to either of the claimants, has such prima 
 facie right been shown in this case before the committee. 
 
 The minority rather considered that the House intended the committee to 
 determine from all the papers submitted the title to the seat. Therefore they 
 examined into the validity of the returns of soldiers' votes and came to a conclusion 
 favorable to Mr. Koontz. 
 
 On February 16 and 19 ' the report was debated at length, after which the ques- 
 tion was taken on the motion of the minority to substitute resolutions declaring 
 Mr. Koontz entitled prima facie to the seat. This motion was disagreed to — yeas 58, 
 nays 83. 
 
 The resolutions as reported from the committee were then agreed to, and Mr. 
 Coffroth was sworn in. 
 
 557. The cases of Koontz v. Coffroth and Fuller v. Davidson, con- 
 tinued. 
 
 The name of a witness who swore to his own vote not being mentioned 'j; 
 in the notice to take depositions as required by law, the vote was rejected. ' 
 
 A precinct return, defective because the certificate of oaths of election 
 ofiacers was wanting, but supplemented by a paper containing the re- 
 quired certificate, was accepted by the House, the State law forbidding 
 rejection for mere informalities. 
 
 'Journal, pp. 282, 297, 298; Globe, pp. 887, 923-930.
 
 § 557 CKEDENTIAI.S AND PRIMA FACIE TITLE. 717 
 
 Two companies of soldiers having voted together wliere the law re- 
 quired a separate poll for each, the vote was counted on testimony show- 
 ing honesty and fairness in the proceedings, the law forbidding rejection 
 for mere informalities. 
 
 Returns of soldiers' votes made to the county of their residence w^ere 
 not rejected by the House because a vote from another county was 
 included, but that vote was rejected. 
 
 On July 9, 1866,' the Committee on Elections reported on the question of the 
 final right, finding that Mr. Coffroth had not been elected and that Mr. Koontz was 
 entitled to the seat. 
 
 The contestant alleged that the official count omitted in the counties of Bed- 
 ford, Fulton, and Adams the votes of certain soldiers, 25S of which were cast for Mr. 
 Koontz and 99 for ^Ir. Coffroth. He further alleged that certain votes of paupers 
 had been unla^\■fully cast for sitting Member. 
 
 The sitting Member, besides opposing the allegations of contestant, alleged 
 that certain votes counted for contestant in the official returns were illegal. 
 
 In the examination of contestant's claims questions of fact as to the casting 
 and counting of soldiers' votes were largely dealt with. Certain principles were 
 laid down by the committee, however, in determining the result. 
 
 The contestant claimed one vote at the Cuyler Hospital, in Philadelphia. The 
 committee decided not to count this vote in the table of votes claimed by contestant 
 for the following reason : 
 
 The committee need not examine this return, notwithstanding all informality is cured by the 
 testimony of the voter who swears he voted for Mr. Koontz. But the name of the witness is not men- 
 tioned in the notice to take depositions, as required by the law regulating contests in elections cases, 
 and of this the sitting Member claims the benefit. We therefore deduct one, which is estimated for 
 Mr. Koontz in the above table. 
 
 The return of the McClellan Hospital, in Philadelphia, was claimed by the sitting 
 Member to be fatally defective, but the committee held: 
 
 It is the duty of the committee to approach as nearly as possible the ballot box, and, by an exami- 
 nation of all the testimony, see that no legal voter is deprived of his just right to the elective franchise. 
 
 We find in the evidence referred to the committee by the House two properly certified papers, 
 one, if taken by itself, defective, because the certificates of oaths are wanting, * * » but, never- 
 theless evidence of what it contains, to wit, the poll book and tally paper, with signatures of the judges 
 and clerks; the other, which is not in conflict with the first, poll book, eertificate of oath of officers, and 
 names and number of electors, signed Ijy same judges and clerks. This makes the testimony complete. 
 The last-mentioned poll book, etc., of itself, though informal, is substantially in compliance with the law. 
 This committee and the House are not circumscribed by the formalities that regulate proceedings of a 
 board of return judges. They can go to the ballot box if necessary. In this instance, by looking at the 
 two returns, no doubt remains of the fact that Mr. Koontz received three votes, which should be counted. 
 
 At Front Royal, Va., two companies of the One himdred and thirty-eighth 
 Pennsylvania Regiment voted together, although the law directed that a poll 
 should be opened in each company. While this was sufficient to exclude the return 
 as a prima facie case, j'et in a case on the merits the majority of the committee con- 
 cluded that, as the testimony showed the voting to have been conducted honestly, 
 
 ' First session Thirty-ninth Congress, Report Xo. 92: 2 Bartlett, p. 138; Rowell's Digest, p. 207.
 
 
 718 PRECEDENTS OP THE HOUSE OF EEPRESENTATIVES. § 558 
 
 and with perfect fairness, the votes should be counted. The report also notes the 
 fact that this decision did not affect the result. 
 
 As to the One hundred and eighty-fourth Regiment, the return of which came to 
 Adams Count}-, the sitting Member objected that it contained a voter of Franklin 
 County. The committee say: 
 
 In his argument he objected to the return because it contained a voter in Franklin County. 
 
 That objection can not deprive the qualified voters of Adams County of their right, when a perfect 
 return, as this is, is properly certified by the prothonotary. 
 
 But the certificate of prothonotary of Adams County is not evidence to us of vote in Franklin 
 County. In the absence of other testimony we reject one vote from this return for Mr. Koontz, and 
 count for Mr. Koontz 38, for Mr. Coffroth 21. 
 
 558. The cases of Koontz v. Coffroth and Fuller v. Davidson, con- 
 tinued. 
 
 Instance wherein a claimant seated after examination of prima facie 
 title was unseated after examination of final right. i.*) 
 
 Election judges and clerks sworn by one having no legal right to ad- 
 minister the oath were regarded by the House as de facto oflB.cers and the 
 returns were counted, the State law^ forbidding rejection for mere infor- 
 malities. 
 
 The State law being silent as to the right of paupers to vote, the House 
 has counted the votes of such persons. 
 
 Oral testimony impeaching a return already counted by return judges 
 was held not suflBcient to cause rejection of the vote, the actual return 
 not being identified and offered. 
 
 As to the Twenty -first Pennsylvania Cavalry at City Point, Va., the committee 
 say: 
 
 The judges and clerks were sworn by Capt. James Mickley, who was a qualified voter, but not a 
 judge or clerk of the election who are authorized by the law to administer such oath. 
 
 The sitting Member claims this return should be deducted, because Captain Mickley was not an 
 election officer. The soldiers' law, section fifth, says "the oath may be administered by judges or clerks." 
 Others may administer. But Captain Mickley not being a public officer, had no legal right to administer 
 the oath. But the judges and clerks became, by taking the oath in good faith, public officers de facto, 
 for the purpose of conducting the election, and their acts are valid. This principle is laid down in second 
 Kent, page 339: "In the case of public officers who are such de facto, acting under color of office, by an 
 election or appointment not strictly legal, or without ha\-ing qualified themselves by the requisite tests, 
 or by holding over after the period prescribed for a new appointment, their acts are held valid as respects 
 the rights of third persons who have an interest in them, and as concerns the public, in order to prevent a 
 failure of justice." 
 
 The decision in the Thirty-sixth Congress (see Bartlett's Election Cases, p. 313), in the case of Blair 
 V. Barret, is also in point. We find the following language in the report of the majority, which was sus- 
 tained: " There was no evidence" (referring to certain precincts) " returned with the return of votes, 
 now before the committee, in any shape at the hearing that the judges of election were sworn. Had it 
 appeared from the evidence that the election had been fairly conducted at these precincts, and there were 
 no traces of fraud, no taint of the ballot box, the committee would not have been willing to have recom- 
 mended a rejection of these polls. The honest electors should not be disfranchised and their voice 
 stifled from a mere omission of the officers of election to take the oath of office." In the case before us 
 there was not an omission, as we have seen. The evidence is, that "the election was conducted very 
 strictly and fairly; inquiry was made as to age and pajntnent of taxes. Those whom we were not posi- 
 tively certain were of age were sworn. The voters presented certificates showing the payment of tax 
 within two years," etc. 
 
 We are therefore clearly of the opinion that this poll should be counted.
 
 § 559 CREDENTIALS AND PEIilA FACIE TITLE. 719 
 
 The committee finally concluded that Mr. Koontz had a majority of 40 votes. 
 
 The House, on July 18/ without division, seated Mr. Koontz, the contestant. 
 
 The committee make, as a part of their report, a compilation of the Pennsyl- 
 vania election laws, among which was the following section relating to the voting 
 of soldiers : 
 
 No mere informality in the manner of carrying out or executing any of the provisions of this act 
 shall invalidate any election held under the same, or authorize the return thereof to be rejected or set 
 aside; nor shall any failure on the part of the commissioners to reach or visit any regiment or company, 
 or part of company, or the failure uf any company or part of company to vote, invalidate any election 
 which may be held under this act. 
 
 The contestant also claimed that the votes of 16 paupers should be deducted 
 from the poll of the sitting Member in Adams County. The committee say: 
 
 The committee can not see why the 16 in Adams County should be deducted from the count of 
 the sitting Member. Each State frames its own laws for the maintenance and care of its poor. The laws 
 provide protectors for the poor, who, "by reason of age, disease, infirmity, or other disability," become 
 unable to work. With regard to the exercise of the elective franchise by such, the laws of Pennsyl- 
 vania are silent. As they are not expressly deprived of the right, we can not see why the unfortunate, 
 provided for by the public, may not vote as well as if provided for by a parent or a son — certainly not 
 until the authorities of Pennsylvania shall have decided for themselves the law, for which they have 
 had frequent opportunities; therefore we here make no deductions. 
 
 The sitting Member claimed the deduction of certain votes on the ground that 
 soldiers' returns improperly made up had been improperly counted in the original 
 official count. This was attempted to be proven by testimony of clerks of county 
 return boards, who testified that certain returns were counted by the return judges, 
 but the actual returns so counted were not identified and made part of the record 
 in the case.' 
 
 559. The Pennsylvania election case of Covode v. Foster in the Forty- 
 first Congress. 
 
 The governor having declined to issue credentials because of unsatis- 
 factory returns, the Clerk declined to enroll either claimant, although the 
 governor officially expressed an opinion that a certain one was elected. 
 
 In a case where there were no credentials the House, in examining as 
 to prima facie right, declined to permit the election returns to be con- 
 sidered by the committee. 
 
 The law requiring a formal proclamation of the governor, the House 
 declined to give prima facie effect to an informal executive communica- 
 tion, especially as the House had the returns. 
 
 ' Journal, p. 1039. 
 
 - On June 21, 1866, the Comimttee on Elections reported on the case of Fuller v. Dawson, from 
 Pennsylvania — a case involving in-^tances of informalities in returns of soldiers' votes under the terms 
 of the Pennsylvania law. The majority of the committee and a large majority of the House sustained 
 the sitting Member, whose majority depended on rather a strict requirement as to records of oaths of 
 election officers and accuracy and regularity of returns, etc. In the debate, which occurred on July 11 
 and 12, it was urged that the provisions of the Pennsylvania law waiving strict requirements had not 
 been given fuU effect; but the House sastained the committee and the sitting Member. (First session 
 Thirty-ninth Congress, Journal, p. 1014; Globe, pp. 3747, 3771, 3802; House Report No. 83; 2 Bartlett, 
 p. 126; Pvowell's Digest, p. 207.)
 
 720 PKECEDENTS OF THE HOUSE OF KEPBESENTATIVES. § 559 
 
 Form of resolution instituting a contest in a case wherein neither 
 claimant is seated on prima facie showing. 
 
 Certain papers being sent to a committee as the basis of a decision 
 and report, the committee does not take into account other pertinent 
 papers in possession of the House. 
 
 On March 4, 1869,' at the time of the organization of the House, when the 
 Clerk's roll of Members-elect was called, it appeared that no name had been entered 
 for the Twenty-first district of Pennsylvania. A proposition to amend the roll in 
 this particular was superseded by a motion to proceed to the election of Speaker. 
 
 On the next day, March 5,- after the election of Speaker, the subject came up 
 in the House again. It appeared that there were before the Clerk and also in pos- 
 session of the House : 
 
 (a) The general proclamation of the governor of Pennsylvania, dated November 
 17, 1868, declaring who were elected to Congress from the several districts of that 
 State, but stating, in regard to the Twenty-first district : 
 
 That no such returns of the elections have been received by the secretary of the commonwealth 
 as would, under the election laws of the State, authorize me to proclaim the name of any person as having 
 been returned duly elected a Member of the House of Representatives of the United States for that 
 district. 
 
 (b) The following letter from the governor to the Clerk of the House, dated 
 some months later than the proclamation: 
 
 Pennsylvania Executive Chamber, 
 
 Earrisburg, Pa., February 23, 1869. 
 Sir: I have the honor to transmit herewith additional affidavits and evidences of fraud submitted 
 to me in regard to the election of Member of Congress in the Twenty-first Congressional district of this 
 State. 
 
 These affidavits were taken before officers properly authorized to administer oaths, and indicate 
 the election of Hon. John Covode. 
 
 Most respectfully, your obedient servant, Jno. W. Geary, 
 
 Governor of Pennsylvania. 
 Hon. Edward McPherson, 
 
 Clerk Hcnise of Representatives, Washington, D. 0. 
 
 State op Pennsylvania, 
 Office of the Secretary of the Commonwealth, 
 
 Earrisburg, Pa., February 23, 1869. 
 I hereby certify that the signature of John W. Geary, governor of this Commonwealth, to the 
 attached letter, is his genuine signature; and that the accompanying affidavits and papers are the 
 originals filed in this office from time to time since the election held •on the 13th of October last. 
 
 In testimony whereof I have hereunto set my hand and caused the seal of the secretary's office to 
 be affixed the day and year above written. 
 
 [seal.] F. Jordan, 
 
 Secretary of the Commonuealth. 
 
 (c) The affidavits reciting the alleged frauds which had determined the mind of 
 the governor as to the right to the seat.' 
 
 ' First session Forty-first Congress, Globe, p. 3. 
 = Journal, pp. 13, 14; Globe, pp. 13-16. 
 'For these affidavits, see Globe, p. 452.
 
 § 559 CBEDENXIALS AND PKIMA FACIE TITLE. 721 
 
 (d) The ofBcial retiims, both of the district returning board and from the three 
 county boards. One of the three district judges, after participating in the pro- 
 ceedings, had refused to sign the district returns, which was signed by two judges 
 only. These two judges had appended a certificate of the refusal of the third judge 
 to sign. 
 
 The Clerk had declined to put the name of either claimant on the roll on the 
 strength of these papers. 
 
 The case being taken up in the House, Mr. George W. Woodward, of Pennsyl- 
 vania, proposed a resolution that "the returns of the election'" be referred to the 
 Committee on Elections with instructions to report which claimant had the prima 
 facie right to the seat. Mr. Glenni W. Schofield proposed a resolution seating one 
 claimant, Mr. Covode, on the strength of the documents furnished by the governor. 
 
 Both of these propositions were finally put aside in order to adopt the following 
 substitute proposed by Mr. Henry L. Dawes, of Massachusetts: 
 
 Resolved, That so much of the proclamation of the governor of Pennsylvania, dated November 17, 
 1868, as relates to the election of Representative in the Twenty-first district of that State, and the letter 
 of said governor, dated February 23, 1869, relative thereto, together with all the papers referred to in 
 said letter, be referred to the Committee of Elections, when appointed, with instructions to report to the 
 House what person, according to said proclamation, letter and papers, is entitled prima facie to repre- 
 sent said Twenty-first district in the Forty-first Congress pending any contest that may arise concerning 
 the right to such representation. 
 
 It is to be noticed that the returns were not included among the papers referred 
 to the committee: and on March 18' Mr. Woodward proposed a resolution as follows: 
 
 That the certified returns of the return judges of the said Twenty-first district, and all the papers 
 connected therewith now in the hands of the Clerk of the House, be referred to the Committee on Elections 
 with the same effect as if they had been included in the resolution of the 5th instant. 
 
 After debate, in which there seemed to exist some confusion as to the real natiu-e 
 of the documents required of the governor to constitute a prima facie case, the House 
 laid Mr. Woodward's resolution on the table. 
 
 On March 26^ the committee reported, the report of the majority being pre- 
 sented by Mr. John Cessna, of Pennsylvania. After quoting the proclamation of 
 the governor and his later letter to the Clerk of the House, the report says: 
 
 The signature of the governor to this document was duly certified by the secretary of the Common- 
 wealth, and the seal of the State attached. 
 
 It is claimed by Mr. Covode that this letter gives him a prima facie right to the seat — it being a 
 supplemental proclamation, as he alleges, and intended to be the decision of the governor that he, 
 Covode, was elected in the Twenty-first district. 
 
 By the general election law of Pennsylvania (Purdon's Digest, eighth edition, section 63) it is 
 provided , where two or more counties compose a district for the choice of a Member of the House of Repre- 
 sentatives, that after an election has been held, the judges of election in each county having met, the 
 clerks shall make out a fair statement of all the votes which shall have been given at such election, 
 within the county, for every person voted for as such Member, which shall be signed by said judges 
 and attested by the clerks; and one of the said judges is to take charge of said certificates of votes and 
 produce the same at a meeting of one judge from each county, at such place in such district as is, or may 
 be, provided by law for that purpose. The judges of the several counties having met, are required 
 
 'Journal, p. 71; Globe, pp. 139-143. 
 
 'Journal, p. 122; Globe, p. 309; House Report No. 2; 2 Bartlett, p. 619; Rowell's Digest, p. 231. 
 .5994— VOL 1—07 46
 
 722 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 559 
 
 (sec. 64) to cast up the several county returns and make duplicate returns of all the votes given for such 
 office of Representative in Congress in said district, and of the name of the person elected, and to 
 deposit one of said returns for said office of Representative in the office of the prothonotary of the court 
 of common pleas of the county in which they shall meet, and to place the other return in the nearest 
 post-office, sealed and directed to the secretary of the Commonwealth. 
 
 The said return judges are also required (sec. 65) to transmit to the person elected to serve in Con- 
 gress a certificate of his election within five days after the day of making said return. 
 
 On the receipt of the return of the election of Members of the House of Representatives of the 
 United States, as aforesaid, by the secretary of the Commonwealth, the governor is required (sec. 113) 
 to declare by proclamation the names of the persons so returned as elected in the respective districts, 
 and also to transmit as soon as may be conveniently thereafter the returns so made to the House of Repre- 
 sentatives of the United States. 
 
 The committee go on to say that their investigations were confined strictly 
 to the papers referred to them by the committee. And they say that they beUeve 
 the governor had a right to decide as he did in the letter to the Clerk, being justified 
 in the precedents in the case of Butler v. Lehman. The committee further say: 
 
 As there is no prescribed form in the law of Pennsylvania for the proclamation, nor any time fixed 
 at which it shall be issued, nor any specified mode of publication required to be made, it is difficult 
 to see that anything is required by the proclamation named in the law more than a decision as to who 
 is duly elected in the respective districts of the State, and notice of such decision given to the parties 
 elected and to the House of Representatives. 
 
 A majority believes that the committee has but little discretion in the premises. The language 
 of the resolution under which we are acting requires us to report to the House what person is entitled, 
 prima facie, to represent the Twenty-first district of Pennsylvania in the Forty-first Congress, according 
 to the papers referred to us. It would seem from this resolution of reference that the House was satisfied 
 that some one had a prima facie right to the seat on these papers, and that the only inquiry for us was 
 as to the person so entitled. 
 
 The committee is further sustained in this view from the fact that at the time these papers were 
 referred, an effort was made in the House to refer other papers seeming to be connected with the case, 
 and this effort was unsuccessful. This effort was subsequently repeated with a like result. 
 
 Therefore the committee, finding that the other claimant is nowhere men- 
 tioned in the papers before the committee, except in an unfavorable light, find Mr. 
 Covode having the prima facie right. 
 
 Therefore the majority of the committee reported resolutions giving the seat 
 to Mr. Covode and providing that Mr. Foster, the other claimant, might contest. 
 
 The majority of the committee^ concede that the proclamation of the governor 
 was legal evidence, but they do not admit the same as to the letter to the Clerk: 
 
 This letter, being unauthorized by law, has no official character. It is not the act of the governor, 
 but the individual. It is no more legal evidence than would be the unsworn statement of any other 
 citizen of Pennsylvania. Furthermore, it is not under the great seal of the State. It is correctly char- 
 acterized in the authenticating certificate of the secretary of the Commonwealth, and in the resolution 
 of the House, as a " letter." It does not, like a solemn proclamation, begin, ' 'In the name of the Com- 
 monwealth of Pennsylvania," and end with the words ' ' Given under my hand and the great seal of the 
 State," but, like an ordinary epistle, it begins with "Sir," and ends with "Most respectfully, your 
 obedient sers-ant." It is true that it is subscribed "Jno. W. Geary, governor of Pennsylvania." But 
 a letter addressed by the governor, as this is, to the Clerk of the House, recommending an applicant 
 for a position in his department, might have been, and probably would have been, subscribed in the same 
 way, and if so subscriljed, would have had the same official character which this letter has. And an 
 
 'H. E. Paine, of Wisconsin; John C. Churchill, of New York; Albert G. Burr, of Illinois, and 
 Samuel J. Randall, of Pennsylvania, signed minority views.
 
 § 559 CKEDENTIALS AND PRIMA FACIE TITLE. 723 
 
 authenticating certificate of the secretary of the Commonwealth would contribute as much of oflacial 
 character to such a recommendation as the secretary's certificate in this case does to the letter. Inas- 
 much as this letter is not legal evidence, it is not material to inquire whether, if it really were competent 
 evidence, it would amount to prima facie proof that either claimant is entitled to the seat. 
 
 But conceding, for the moment, the right of the governor to issue a supplemental proclamation, 
 is the document of date Februarj' 23 such an instrument as is contemplated by the law of Pennsyl- 
 vania? A " proclamation " is an official notice to the public, a public declaration made by competent 
 authority. By Webster a proclamation is defined as ' ' publication by authority, official notice given 
 to the public," " the paper containing an official notice to a people." But the document in question 
 is a mere private communication sent by Governor Gearj' to the Clerk of this House. It has none of the 
 elements of a proclamation, is not issued by competent authority, for it lacks authority of law; and an 
 unauthorized act by an official has no more legal force than the same act by a private citizen. It is not 
 addressed or directed to the public, nor is it intended for their consideration. It does not declare a result, 
 but merely ventures an opinion, and that only incidentally, for the object alone of the document was 
 to transmit papers, called " affidavits and evidences of fraud," to the Clerk. The Clerk himself does 
 not consider it in any sense an official document, else he surely would have acted upon it and placed 
 on the rolls the name of Hon. John Covode as the Member from the district in question. Further, the 
 paper under consideration has no ' ' great seal of the Commonwealth," as has the proclamation of Novem- 
 ber 17; and if it be said that the certificate of the secretarj' of the Commonwealth shows this paper to 
 have been issued by John W. Geary, as governor, it will be seen that, by the same certificate, the secre- 
 tary designates the paper in question, not as a proclamation or official document, but as a " letter" only. 
 So far as this is a private communication we have nothing to do with it; but in so far as we are required 
 to consider it in deciding a prima facie right to the vacant seat, the preceding comments are considered 
 justifiable. In the view of the undersigned, for the reason aforesaid, neither the letter of February 23, 
 nor the affidavits accompanying, have any legal value in determining the question submitted. So 
 far as the affidavits are concerned, suppose all were considered as true and in all respects competent 
 as testimony, what do they show? At most, that some votes were wrongfully received, and some errone- 
 ously rejected, at the election in question. They do not, nor do any papers before the committee, show 
 how many votes were cast for anyone as a candidate in that district. The only manner in which the 
 "affidavits" could "indicate" a result would be to furnish information whereby we might add to 
 or subtract from the aggregate vote previously ascertained to have been cast for the respective parties; 
 but the only ascertained result is embodied (if anywhere) in the ' ' returns," which have been carefully 
 excluded from consideration here, and which had been sent from the governor months before he ascer- 
 tained what the affidavits in question ' ' indicated." 
 
 The minority deny the right of the governor to do what he did: 
 
 By virtue of what law of Pennsylvania were affidavits of any character submitted to the governor 
 for his consideration? By the sanction of what law did he transmit them to the Clerk of this House? 
 By what legal right did he base any act of his on such affidavits, or on any affidavits connected with an 
 election? He had already done all that in his judgment he had any authority to do; and had parted 
 with all the records which gave him an original right to do anything whatever in the case. If he had 
 before that time done all his duty, the duty was ended. If he had omitted any duty, in not having 
 officially declared a result in the Twenty-first district, the time for the discharge of that duty passed, 
 and the power to discharge it ceased, when the returns left his possession; and any later act of his in the 
 premises was without sanction of law, of none effect, and entitled to no consideration here or elsewhere. 
 
 The authority of the case of Butler v. Lehman is denied after discussion of the 
 precedent. 
 
 The minority therefore proposed a resolution declaring that the papers referred 
 to the committee did not show what person was entitled prima facie to represent 
 the district. 
 
 The report was debated on April 2} It was pointed out that the law of Penn- 
 sylvania did not require the governor to send his proclamation to the House, but did 
 
 'Globe, pp. 452-466.
 
 724 PBECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 560 
 
 require him to send the returns. The returns had in fact been sent, and it was 
 asserted that these returns made out a prima facie case for Mr. Foster. But the 
 House had excluded the Committee on Elections from taking those returns into 
 consideration. But it was urged that the House might consider the returns if the 
 committee did not. Mr. H. E. Paine, of Wisconsin, proposed the following reso- 
 lution, which was agreed to without division: 
 
 Resolved, That the contested election case from the Twenty-first Congressional district of Penn 
 sylvania be recommitted to the Committee on Elections with instructions to report upon the merits o 
 the case, who is entitled to represent said district in this House, with authority to make regulations to 
 govern the mode of conducting the contest and taking testimony. 
 
 On April 5 ' the committee reported and the House agreed to the following 
 regulations : 
 
 Each of the claimants shall serve upon the other a notice of the grounds on which he claims the 
 seat before June 1, 1869, and an answer to the notice of his opponent before June 20, 1869. Said Covode 
 shall take his testimony between the 1st and 15th days, inclusive, of July, August, and September, 
 1869; and said Foster shall take his testimony between the IGth and last days, inclusive, of the same 
 month. The statutory provisions regulating ordinary cases of contest shall apply to this case so far as the 
 same are consistent with these regulations. All testimony shall be transmitted under seal, by the 
 officers before whom the same shall be taken, to the Clerk of the House at Washington, so as to be received 
 by said Clerk before the loth day of October, 1869; before which days the notices, answers, evidence, 
 and exhibits in the case shall be filed with said Clerk. And the clerk of the Committee on Elections 
 shall immediately thereafter arrange the papers for the Public Printer, and cause the same to be printed 
 before the 1st day of November, 1869; and printed arguments of the claimants shall be filed with the 
 Committee on Elections on the first day of next session. 
 
 560. The case of Covode v. Foster, continued. 
 
 An instance of rejection of a poll where irregularities in both the 
 reception and counting of votes, cumulatively considered, showed a want 
 of good faith and regard for law. 
 
 Participation of an unsworn person in the count may be held a 
 contributory irregularity in justifying rejection of a poll. 
 
 On January 27, 1870,^ Mr. John C. Churchill, of New York, from the Committee 
 on Elections, submitted a report, the case being called Covode v. Foster. The 
 report finds from the certificates of the return judges of the several counties in 
 the district that Henry D. Foster had a returned majority of 41 votes. The 
 majority of the committee were convinced that certain obviously proper corrections 
 would increase tliis majority to 64. 
 
 The majority found, however, that this vote was successfully assailed by Mr. 
 Covode. The examination of this question divided itself into several branches. 
 
 (1) In Dimbar Township, where a majority of the board of election officers 
 belonged to Mr. Foster's party, ballots were received for a time in a cigar box and 
 a hat, and afterwards transferred to the regular boxes, the proceeding being con- 
 trary to the requirements of Peimsylvania law; persons, some under the influence 
 of liquor, were near the boxes during the day; one inspector of election was under 
 the influence of liquor; challenges were disregarded, in violation of law, and evi- 
 
 ' Globe, p. 510. 
 
 2 House Report No. 15, second session Forty-first Congress, 2 Bartlett, p. 600; Rowell's Digest, 
 p. 237.
 
 § 560 CREDENTIALS AND PRIMA FACIE TITLE. 725 
 
 dently resulted in the voting of persons not entitled to vote; while the votes were 
 being counted one election officer was taken sick and one, William Speers, shown 
 to be an unscrupulous partisan of Mr. Foster, took the vacant place without being 
 sworn, and officiated until the end of the count; six more ballots were found in the 
 box than could be accoimted for by the names on the tally list. The majority of 
 the committee say: 
 
 From all the evidence, I think we must conclude that the returns of such an election are too 
 unreliable to be received, and as neither party has attempted to prove what votes were cast for him 
 at that election, that the whole poll of Dunbar Township must be rejected. 
 
 \Miile it is well established that mere neglect to perform directory requirements of the law, or 
 performance in a mistaken manner, where there is no bad faith and no harm has accrued, wUl [not] 
 justify the rejection of an entire poll, it is equally well settled that where the proceedings are so tarnished 
 by fraudulent, or negligent, or improper conduct on the part of the officers as that the result of the 
 election is rendered unreliable, the entire returns wUl be rejected, and the parties left to make such 
 proof as they may of votes legally cast for them. 
 
 The minority ' do not agree to this : 
 
 We do not concur in this conclusion, believing that in such case it should be made the duty of 
 each party to a contest, respectively, to prove the LUegal votes cast at such poll, and for whom such 
 illegal votes were given. Those not proved to be illegal should stand; that is to say, that such poll be 
 purged of its illegal votes only; those left to be duly counted. The merits of a contested election depend 
 upon the finding out which of the candidates received the greatest number of legal votes. The only 
 way to arrive at this is to show of the votes cast for each candidate those that were illegal. It is at no 
 time justifiable to throw out an entire poll, and in this way disfranchise the whole voting population 
 of a district, if it can be purged of its illegal portion. In this case the testimony is fuU as to Dunbar 
 Township, and the illegal votes, by said testimony, can be readily and conclusively determined. This 
 is a Pennsylvania case, and the courts of that State have, in aU contested elections, held that impos- 
 sibility of ascertaining the true state of the poll is the only ground for rejecting it. To show that the 
 majority themselves are in doubt as to the justness of rejecting this entire poll, they present to the 
 consideration of the House the condition of the poll after they have purged it of all the illegal votes 
 alleged and proved to have been cast. This latter course should commend itself to your judgment, 
 and while being in strict accordance with law and precedent, is, at the same time, a protection to the 
 honest voters in every poll. 
 
 After reviewing each irregularity the minority say: 
 
 One by one we have disposed of the complaints and irregularities made against this (Dunbar) 
 township poU. Surely, if they can not stand singly, they should not be made to prop each other and 
 thus have force combined. 
 
 In the debate- the majority did not contend that any one of the irregularities 
 would justify the contemplated action, but did urge that taken together they 
 showed — 
 
 a want of that good faith and regard for law the presumption of which is the foundation of the authority 
 which is given to the returns of an election board. 
 
 The position of the minority against the rejection of the return was analyzed 
 in the debate,' the point being made that the rejection of returns in which no con- 
 fidence could be placed was not a disfranchisement of legal voters. It was simplj- 
 
 ' The minority views were signed by Messrs. Samuel J. Randall, of Pennsylvania; Albert G. Burr, 
 of Illinois, and P. M. Dox, of Alabama. 
 
 2 Remarks of Mr. Churchill, Globe, p. 1116. 
 
 'By Mr. Luke P. Poland, of Vermont, Globe, p. 1158.
 
 726 
 
 PKECEDENTS OF THE HOUSE OF EEPEESENTATIVES. 
 
 §561 
 
 a declaration that the candidates could not use the discredited return to prove the 
 votes, but must prove the votes otherwise. Not having submitted any proof, no 
 votes could be counted. 
 
 561. The case of Covode v. Foster, continued. 
 
 Neglect of a mandatory law requiring a voting list to be furnished 
 at a poll was, in connection with questionable acts of partisan election 
 oflB.cers, suflB.cient to justify rejection of the poll. 
 
 Paupers supported in a county poorhouse were held to have gained no 
 residence in the town by reason of this enforced stay. 
 
 The House has rejected votes of lunatics whose votes had been re- 
 ceived by election officers and in whose cases there had been no findings in 
 lunacy. 
 
 (2) The majority of the committee found that through the apparently inten- 
 tional irregularities practiced by one Eisaman, an assessor whose duty it was to fur- 
 nish the voting list at Youngstown election district, the officers of election used a 
 list which Eisaman had posted in accordance -wath law, but not the list he was 
 required to furnish for the election. The report says: 
 
 The assessor assessed persons who made no personal application to him, contrary to the law; the 
 names of the persons so assessed he did not enter upon the list in his possession, as required by law, 
 but upon a separate piece of paper, which was not a legal assessment; nor did he furnish any copy of 
 this to the county commissioners at any time before the election, nor to the inspectors of elections on 
 or before 8 o'clock on the forenoon of the day of election, as required by law. All these provisions of 
 law are not directory merely, but mandatory, and enforced by severe penalties. (Election Laws, 
 p. 42, sec. 85.) 
 
 But whether the assessment made by Eisaman was a legal assessment or not (and we think no 
 legal assessment was shown to have been made), the failiu-e of Eisaman to furnish to the inspectors a 
 copy of the list had the same effect, so far as that election was concerned, as though no assessment what- 
 ever had been made. 
 
 The law of Pennsylvania is explicit that when the name of the person coming to vote is not found 
 on the list furnished by the commissioners or assessors the board must examine him under oath as to 
 his qualifications, and he must prove by at least one witness, who must be a qualified elector, that he 
 has resided in the district at least ten days next immediately preceding the election. (Election Laws, 
 33, sec. 42, 2 par., 553, 580-581.) That law further provides that if any inspector or judge shall receive 
 the name of any person whose name shall not be returned on the list furnished by the commissioners or 
 assessor without first requiring the evidence directed by the act, the person offending shall, on convic- 
 tion, be fined not less than $60 nor more than $200. (Election Laws, 41, sec. 81.) 
 
 The assessor having failed to furnish the inspectors with any copy of the list of taxables, the board 
 could legally receive no vote at that election, except by requiring him to be examined as to his quali- 
 fications under oath, and to furnish the further evidence required by the act. Nothing of this kind 
 was done; but, instead, the votes of persons were rejected because their names were not found on this 
 paper taken from the tavern wall, and they were permitted to vote because their names were found 
 thereon. This alone we think sufficient to invalidate the election in that district. 
 
 But the conduct of the election board was equally blameworthy with that of the assessor. From 
 the report which had gone out that an unusually large number had been assessed at the monastery, 
 and from the gathering of strangers there, it was believed that improper votes would be attempted to 
 be polled, and a purpose seems to have been formed to prevent these votes being received, except upon 
 proper examination. But from the commencement of the election until about 11 o'clock, during 
 which time the greater part of these votes were polled, challenges were entirely disregarded. 
 
 In addition, the paper used bj^ the election officers disappeared after the elec- 
 tion, and there was no means of determining as to its value. Also all the election 
 officers were of Mr. Foster's party.
 
 § 561 CREDENTIALS AND PRIMA FACIE TITLE. 727 
 
 Therefore the majority recommend the rejection of the entire vote of Youngs- 
 town as returned. 
 
 The minority find that the assessor performed properly all the duties in rela- 
 tion to the lists, except one: 
 
 But the last requirement — i. e., to make out duplicates of these lists and file one in the county 
 commissioner's office and hand the other to one of the inspectors of the election before 8 o'clock on 
 the morning of said election — was neglected to be done by the assessor. And because of the neglect 
 of this one, and not the most material requirement, having fulfilled everj' other duty incumbent on 
 him, and in so doing acting under the sanctity of his official oath, the majority ask now to reject this 
 entire poU. 
 
 If there had been no official act whatever performed by the assessor necessary to the proper con- 
 duct of this election, then the committee might, with some propriety, ask for the rejection of this poU. 
 In performing none of his duties, the officers of the election would have been compelled to close the 
 polls or to have proceeded without official knowledge as to who were the taxables and voters of the 
 district; even then we hold that it would have been competent for the officers of the election to have 
 received the votes of all persons offering to vote, who, upon examination under oath, were found to 
 have the constitutional qualifications of voters. But they were placed in no such position by the neg- 
 lect of this assessor. They were not without a proper guide for the conduct of the election. 
 
 (3) It was shown that in South Union certain inmates of the local poorhouse, 
 who were sent there from other townships, had voted for Mr. Foster. The same 
 thing occurred at Hemphill Township. The majority of the committee conclude: 
 
 The testimony further shows (Zundell, 191) that none of these persons were assessed upon per- 
 sonal application, and also that none of them paid the tax upon which they were permitted to vote 
 (192, 273), but that their names were handed to the assessor and their taxes paid by an official who 
 understood that they would vote, and for the purpose of enabling them to vote a'particular ticket, both 
 assessment and payment of tax being illegal as against the express letter of the election laws of Pennsyl- 
 vania. (Election Laws, 24, sec. 13; 40, sec. 75.) Butdid these persons acquire a residence in the election 
 district where the county-house was situated, within the meaning of the law of Pennsylvania, which 
 requires that the voter shall have resided at least ten days immediately preceding the election in 
 the district where he offers to vote? We think not. Their residence at this place was not their own 
 voluntary act, but the act of the public authorities, who, for reasons of economy and convenience, 
 sent them here that they might be supported at the public expense. 
 
 The court, in Murray v. McCarty (2 Mun., 397), says, that to divest a person of the character of 
 citizen of a particular place, "there must be a removal with an intention to lay aside that character, and 
 he must actually join himself to some other community." The italics are those of the original report. 
 
 So Burrill (Law Die, tit. Residence) defines residence as "the place which one has made his 
 seat, abode, or dwelling." The derivation, as well as the ordinary acceptation of the term, denotes 
 the place where the party has seated himself, and his own choice or free will in the matter is assumed. 
 We think this the legal as well as the ordinary meaning of the term, and that accordingly the soldier 
 who occupies a place at the command fif his military superiors, the criminal who does the same thing 
 while in custody in the hands of the criminal authorities, and the pauper who is placed and supported 
 in the county poorhouse at the public expense, gains no residence in the town by his enforced stay. 
 We think, therefore, that these fifteen votes should be deducted from the vote for Mr. Foster. 
 
 The minority decline to sanction the deduction of the poorhouse vote, quoting 
 the case of Koontz v. Coffroth. 
 
 (4) The majority rejected the votes of certain lunatics, saying: 
 
 As to lunacy, it was held by the court in Thompson r. Ewing (1 Brewster, Rep., 104), that it 
 was proper to show in a contested-election case that a voter was non compos mentis, and that without 
 a finding in lunacy.
 
 728 PEECEDENTS OF THE HOUSE OF KEPEESENTATmiS. § 562 
 
 The minority say : 
 
 As to the lunacy vote — four in number — we desire to say that the constitutional requirements 
 do not set up any prohibition as against simple-minded men or lunatics. The extent of the mental 
 imbecility would seem, therefore, to have been left to the officers of the election to determine, and 
 upon such extent of weak intellect admit or reject the vote when offered. 
 
 562. The case of Covode v. Foster, continued. 
 
 The House rejected a vote found by the judges in an irregular place 
 and counted in spite of the fact that it caused an excess in the poll. 
 
 The House may count votes improperly rejected by election officers. 
 
 The House may count votes not cast because of intimidation practiced 
 in presence of the election officers and which it was their duty to prevent. 
 
 (5) Certaia other votes the majority reject : 
 
 To these should be added 1 vote for Foster for Congress found in the State box in Sewickly Town- 
 ship and counted to him, although thereby the number of votes for Congress was made one greater 
 than the number of names on the list (377). 
 
 Also, 1 vote for Foster in South Huntingdon Township, found upon the floor at the close of 
 the counting, a considerable crowd standing around, and counted to Foster, although thereby the num- 
 ber of votes for C-ongress was made one more than the number of names on the list of voters. 
 
 The minority say: 
 
 How such conclusion can be reached passes our comprehension. If anyone can determine that 
 the vote in excess may not have just as likely been cast for Mr. Covode as for Mr. Foster, he will have 
 succeeded better than can be determined by those who sign this report. So, also, with regard to one 
 vote in South Huntingdon Township, which was found on the floor, and counted for Mr. Foster. 
 
 In the debate the majority retorted that the votes foimd not in the ballot 
 box but in an irregular place was certainly the one to be deducted. 
 
 (6) The majority also counted certain votes not cast. There were votes 
 improperly rejected, and one vote prevented by threats of violence made in the 
 presence of the election officers, and against which it was the duty of the election 
 officers to protect the voter. 
 
 The majority of the committee found Mr. Covade elected by 402 majority, 
 and reported the following resolutions : 
 
 Resolved, That Henry D. Foster is not entitled to a seat in this House as Representative from 
 the Twenty-first Congressional district of Pennsylvania. 
 
 Resolved, That John Covode was duly elected Representative in Congress from the Twenty-first 
 Congressional district of Pennsylvania at the election held therein on the 13th day of October, 1868, 
 and that he is entitled to a seat in this House as such Representative. 
 
 The report was debated at length on February 8 and 9,' and on the latter day 
 a resolution offered as a substitteu declaring Mr. Foster entitled to the seat was 
 disagreed to — yeas 49, nays 122. 
 
 The first resolution of the majority was agreed to without division. The 
 second resolution was then agreed to — yeas 121, nays 45. 
 
 Mr. Covode was then sworn in. 
 
 ■ Globe, pp. 1114, 1121, 1149, 1154-1160; Journal, p. 291.
 
 § 563 CREDENTIALS AND PRIMA FACIE TITLE. 729 
 
 563. The Senate election case of Henry A. Du Pont, of Delaware, in 
 the Fifty-fourth Congress. 
 
 A claimant to a seat in the Senate, in a case where there was no con- 
 testant and no credentials, petitioned for the seat, exhibiting evidence in 
 support of his claim. 
 
 A Senate discussion as to incompatible oflBces and as to cases wherein 
 the acceptance of one creates a vacancy in another. 
 
 A Senate committee concluded that the Journal entries of a legisla- 
 tive body were conclusive as to all the proceedings had and might not be 
 contradicted by ex parte evidence. 
 
 The senate of a State having failed to adjudge a participating Mem- 
 ber disqualified, the United States Senate, in a close decision, declined to 
 reject the vote of the said Member for Senator. 
 
 On December 4, 1895,* in the Senate, Mr. John H. Mitchell, of Oregon, pre- 
 sented the following : 
 
 To the Senate of the United States: 
 
 The undersigned hereby claims the right to be admitted as a Senator from the State of Delaware 
 under an election by the legislature of said State on the 9th day of May, A. D. 1895, to fill the term of 
 six years, commencing on the 4th day of March, A. D. 1895, and herewith presents evidence in support 
 of his claim. 
 
 H. A. Dv Pont. 
 
 This paper, which was treated and described as a petition, was accompanied 
 by a certificate of the speaker of the Delaware house of representatives, attested 
 by the clerk of the said house, setting forth the proceedings by which it was claimed 
 that Mr. Du Pont had been elected, and the particular question wherein a doubt 
 as to his election was involved. 
 
 These papers, as well as others filed at a later date, were referred to the Com- 
 mittee on Privileges and Elections. 
 
 No request was made that Mr. Du Pont should be sworn in; but he was accorded 
 the privileges of the floor of the Senate. 
 
 On February 18, 1896,^ Mr. Mitchell presented the report of the committee, 
 which was concurred in by Messrs. George F. Hoar, of Massachusetts; William E. 
 Chandler, of New Hampshire; Julius C. Burrows, of Michigan; and J. C. Pritchard, 
 of North Carolina. The minority dissented and filed views which were signed by 
 Messrs. David Ttirpie, of Indiana; James L. Pugh, of Alabama; George Gray, of 
 Delaware, and John M. Palmer, of Illinois. 
 
 As to the facts, the report saj^s: 
 
 The legislature of the State of Delaware consists of a senate, composed of 9 senators, 3 of whom are 
 elected from each of the three counties of the State, and a house of representatives of 21 members, 7 
 of whom are elected from each of the three counties of the State. WTien there are no vacancies in the 
 membership, and all are present in joint assembly of the two houses for the purpose of electing a United 
 States Senator, such joint assembly is composed of 30 members, thus requiring the votes of 16 members 
 to elect. 
 
 ' First session Fifty-fourth Congress, Record, pp. 29, 30. 
 
 'Record, pp. 1827-1861. The report, with minority views and exhibits, is printed in full in the 
 Record.
 
 730 PRECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 563 
 
 In the event of one vacancy caused either by death, resignation, inability to act, or for any other 
 reason, then the joint assembly, all others being present, would be composed of 29 members, in which 
 event the votes of 15 members would be sufficient to elect. 
 
 At the meeting of the joint assembly of the legislature of Delaware on the 9th day of May, 1895, 
 which assembly, it is conceded, was in all respects regularly called and held in pursuance of law, the 
 final vote was as follows: 
 
 Joint meeting proceeded to another ballot, which resulted as follows: 
 
 H. A. Du Pont had 15 
 
 Ed. Ridgley had 10 
 
 J. Edward Addicks had 4 
 
 Ebe W. Tunnell had 1 
 
 There being present in such joint assembly, and each casting a vote, 30 persons, each claiming to 
 be a member of the legislature of the State of Delaware and entitled to vote for United States Senator. 
 It is conceded by Mr. Du Pont and by your committee that if this contention is true — that is, if 
 each of the 30 persons so present in such joint assembly and each of whom cast a vote for Senator was a 
 duly qualified member of the legislature of the State of Delaware and under no disability as such which 
 would deprive him of his right to a seat in such assembly and to cast a vote for Senator — then Mr. Du 
 Pont was not elected Senator and is not entitled to a seat in the Senate. 
 
 It is admitted upon the part of Mr. Du Pont, and such is the fact, that of the 30 persons so present 
 and claiming a right to vote as aforesaid, 29 of them were so qualified. It is contended, however, that 
 1 of the 30, namely, William T. Watson, claiming to be a senator from the county of Kent, and claiming 
 to be the speaker of the senate, and claiming the right, as such senator, to be present and participate 
 in the proceedings of such joint assembly, and to cast his vote for Senator, was not entitled under the 
 constitution of the State of Delaware and the laws of the land, to be present in such joint assembly, had 
 no right to be counted therein in making up the number present, and had no right to cast his vote in 
 such assembly for any person for Senator. 
 
 If this contention upon the part of Mr. Du Pont is correct, then it is conceded, provided the right 
 to inquire into Watson's qualifications to vote in such assembly now exists, that, inasmuch as in that 
 event there were but 29 members of the legislature of the State of Delaware present entitled to vote, 
 and as it is conceded Mr. Du Pont received the votes of 15 of such membere, no one of which was that 
 of Mr. Watson, thus receiving a clear majority of all the votes cast, entitled to be cast, he was duly 
 elected Senator, and is entitled to his seat. 
 
 The whole question involved, then, in this case is as to the right of Watson to be present in such 
 joint assembly, and to be counted therein in making up the number present, so as to require the votes 
 of 16 members to make an election. 
 
 The ground upon which it is claimed upon the part of Mr. Du Pont that Mr. Watson was ineligible 
 to a seat in such joint assembly, and should not have been counted therein in making up the number 
 constituting the same, is based on the fact that, although he had been duly elected a senator from the 
 county of Kent, and from the commencement of the session in January, 1895, until April 9 of that year, 
 had held and occupied a seat in the senate and had been elected speaker thereof, and served in that 
 capacity, he had, on the 9th day of April, 1895, the governor of the State of Delaware. Joshua H. Marvil, 
 having died the day previous, succeeded to the governorship of the State in virtue of a provision of the 
 constitution of that State, and from that date until the 9th day of May following had continued to exer- 
 cise the functions and duties of executive of the State, and has ever since and still continues to exercise 
 the office of governor of said State, and that, therefore, on that date. May 9, 1895, he. then holding the 
 office of and being the governor of the State of Delaware, was ineligible to a seat in said joint assembly, 
 and had no right whatever, under the provisions of the constitution of the State and of the laws of the 
 land, to be present, either to participate by his vote or otherwise, or to be counted therein. 
 Your committee hold that this contention on the part of Mr. Du Pont is well founded. 
 The clause in the Delaware constitution in pursuance of which Mr. Watson, as speaker of the senate 
 became governor on April 9, 1895, and which wiU be commented on later in this report, is found in 
 section 14 of Article III, and is as follows: 
 
 I
 
 § 563 CREDENTIALS AND PRIMA FACIE TITLE. 731 
 
 "Upon any vacancy happening in the office of governor by his death, removal, resignation, or 
 inability, the speaker of the senate shall exercise the office until a governor elected by the people shall 
 be duly qualified." 
 
 It is conceded a vacancy in the office of governor occurred on April 8, 1895, by the death of the 
 then governor of the State, Joshua H. Marvil; also that Senator Watson was then and on April 9, 1895, 
 speaker of the senate, and that on this latter date he took the required oaths, was inaugurated, and 
 entered upon the exercise of the office of governor, and has continued to hold and exercise such office 
 ever since. 
 
 PROCEEDINGS OF THE LEGISLATURE. 
 
 The legislature of the State of Delaware met in biennial session on the first Tuesday of January, 
 1895, and on that day organized by the election of speakers and other officers for the senate and house of 
 representatives. There were at that time 9 members of the senate and 21 members of the house of 
 representatives, 3 senators and 7 representatives ha\'ing been chosen from each of the three counties in 
 the State. At the organization of the senate William T. Watson was duly elected speaker and continued 
 in the discharge of his official duties as speaker of the senate, save during occasional absences, until the 
 9th day of April, 1895, the day following that on which Joshua H. Marvil, governor of the State of Dela- 
 ware, died. 
 
 This legislature being charged with the duty of electing a Senator of the United States for the 
 constitutional term of six years commencing on the 4th day of March, 1895, and having failed to elect 
 such Senator on the second Tuesday after the meeting and organization of such legislature, convened in 
 joint assembly on the next day, being the 16th day of January, pursuant to the provisions of the act of 
 Congress entitled "An act to regulate the times and manner of holding elections for Senators in Congress," 
 approved July 25, 1866, and proceeded to vote for a United States Senator. 
 
 Iso one haN-ing been elected to that office on that day, the legislature, pursuant to the provisions 
 of said act, convened in joint assembly on the following and succeeding days, Sundays excepted, untQ 
 and including Thursday, the 9th day of May, 1895. No one was elected United States Senator prior to 
 the day last named. On the 9th day of April aforesaid, immediately after the joint assembly of the two 
 houses had separated, Senator William T. Watson, who at the time of the death of Governor Marvil, 
 which occvured on the preceding day, had been speaker of the senate, took the official oaths prescribed 
 for the governor of the State of Delaware, and forthwith entered upon the exercise of that office. 
 
 It is conceded that from the commencement of the voting for a United States Senator until and 
 including the 9th day of April, Senator William T. Watson took part in such voting except during 
 occasional absences. 
 
 Furthermore, it is a conceded fact, and if not conceded, fuUy borne out by the journal entries and 
 other testimony, that from the time he took the oaths of office and assumed the functions of governor 
 in the exercise of such office until the final joint assembly of the two houses on the 9th day of May, 
 Governor Watson did not upon any occasion take any part either in the proceedings of the senate or of 
 the joint assembly. 
 
 And, further, it is clear to your committee from the record and other evidence submitted that from 
 the hour of his inauguration as governor, by taking the constitutional oaths required of a governor, his 
 name was dropped from the roll call of the senate and was never once called, either as of speaker or as 
 of a senator, on any roll call had on any bill, resolution, or motion until the final adjournment of the 
 senate. Senator Alrichs, in his affidavit of date January 28, 1986 (Doc. 9, part 6, p. 1), shows this con- 
 clusively, and it is not contradicted by any affidavit filed in the case. 
 
 It is conceded, however, that Governor Watson did, on the 9th day of May aforesaid, enter the final 
 joint assembly and assume the right to be counted as a member of such assembly, and the right to vote 
 therein for a United States Senator. During this final assembly 28 ballots were had for United States 
 Senator. The vote upon each ballot as shown by the record of such assembly was as follows: 
 
 Votes. 
 
 Henr>- A. Du Pont l.j 
 
 Ed. Ridgely 10 
 
 J. E. Addicks 4 
 
 E. W. Tunnell 1
 
 732 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 563 
 
 William T. Watson, then governor of the State of Delaware, as aforesaid, cast his vote each time fnr 
 Ed. Ridgely. 
 
 It will be seen, therefore, the whole question of tlie right of Mr. Du Pont to a seat in the Senate, as 
 claimed, turns upon the single question: Had William T. Watson, then holding and exercising the office 
 of governor of the State of Delaware, a right under the constitution of that State and the laws of the land, 
 to exercise the office of State senator, and as such to sit in the joint assembly on May 9, 1895, to be 
 counted therein in making up the number constituting such joint a.ssembly, and to vote therein for a 
 United States Senator? Your committee are clearly of the opinion he had not. 
 
 PROPOSITIONS INVOLVED. 
 
 In determining this question three different propositions are presented for our consideration: 
 
 First. Did the offices of senator and speaker of the senate, held by William T. Watson from the com- 
 mencement of the session of the Delaware legislature in January, 1895, until April 9, 1895, become abso. 
 lutely vacant on the inauguration of said William T. Watson as governor of the State by taking the oaths 
 of office required of a person entering upon the exercise of that office? Or, 
 
 Second. If such offices of senator and speaker of the senate did not become absolutely vacant upon 
 such inauguration as governor, was the right of Watson to exercise the functions of both speaker of the 
 senate and senator held in abeyance and suspended for and during the time he should continue to hold 
 and exercise the office of governor? Or, 
 
 Third. While holding and exercising the office of governor did said William T. Watson not only 
 continue to hold the offices of senator and speaker of the senate, but did his right to exercise all the func- 
 tions of such senator and speaker of the senate while holding and exercising the office of governor continue 
 to exist? 
 
 The answer to either or both of the first two propositions in the affirmative settles the question in 
 favor of the right of Mr. Du Pont to a seat, while an affirmative answer to the third proposition, which of 
 course negatives the other two, would be a denial of his right to a seat. 
 
 The report discusses at great length the various questions involved in the case, 
 and arrives at the following conclusions of law and fact: 
 
 (1) It is a well-settled rule of the common law that the same person shall not exercise simultane- 
 ously two incompatible offices; and further, the acceptance of one is ipso facto a resignation of the other. 
 
 (2) Under the American system executive and legislative offices are incompatible, and the same 
 person can not exercise both simultaneously in the absence of either express or clearly implied statutorj' 
 or constitutional authority; and the acceptance of the second is ipso facto a resignation of the first. 
 
 (3) There is no express or implied authority in the constitution of the State of Delaware for the 
 simultaneous exercise by the same person of the offices of governor and senator; on the contraiy, such 
 constitution expressly interdicts such exercise of those two offices. 
 
 (4) Whether or not the offices of State senator and speaker of the senate became absolutely vacant 
 when Speaker Watson took the oath of office, was inaugurated governor of the State, and entered upon 
 the exercise of that office, there can be no doubt, on a fair construction of the several constitutional pro- 
 visions of the State of Delaware, that his right to exercise the office of senator or speaker of the senate, or 
 any of the functions connected therewith while he continued to hold and exercise the office of governor, 
 was held in abeyance and absolutely suspended. 
 
 (5) The theory that Mr. Watson can exercise the office of governor of the State and State senator 
 simultaneously, involves innumerable constitutional repugnancies, perplexing difficulties, and endless 
 absurdities; while the opposite theory reconciles and harmonizes all the provisions of the Delaware con- 
 stitution relating to the subject under consideration. 
 
 (6) That Governor Watson's exercise of the office of senator in the joint assembly on the 9th day of 
 May, 1895, and of the office of president of such joint assembly was illegal, and his vote therein for United 
 States Senator a nullity. 
 
 In determining the above propositions your committee reach the further following conclusions: 
 
 (7) In determining the question as to whether the Delaware senate on May 9, 1895, acted upon or 
 judged, either actually or constructively, the qualifications of Governor Watson to a seat in the senate, 
 the journal entries of the proceedings of the Delaware senate of that date are conclusive as to the number
 
 § 563 CREDENTIALS AXD PRIMA FACIE TITLE. 733 
 
 and names c£ senators present, the motions submitted, the votes cast, and of all the proceedings had, and 
 can not be contradicted by ex parte affidavits. 
 
 (8) The right which undoubtedly belongs exclusively to the Delaware senate to judge of the elec- 
 tions, returns, and qualifications of members, does not vest in such senate any exclusive right as would 
 conclude the Senate of the United States to determine by construction whether the constitution of the 
 State of Delaware does or does not recognize a certain seat in the senate as subject to occupation; nor 
 does it include the power to admit members to seats not recognized by the constitution of the State as 
 subject to occupation, or, if subject to occupation, to fill them in a manner or by a person which the 
 State constitution forbids. 
 
 (9) Your committee, applying these rules, find as a matter of fact the Delaware senate never 
 judged of the qualifications of Governor Watson to a seat in the senate, either on the 9th day of May, 
 1895, or at any other time subsequent to the date of his inauguration as governor. 
 
 (10) That on May 9, 1895, the date on which Mr. Du Pont claims to have been elected, the legis- 
 lature of the State of Delaware consisted of but 29 members; there were in the joint assembly on that 
 date but 29 members of such legislature entitled to seats in such joint assembly and entitled to be 
 counted and vote therein. As Mr. Du Pont received 15 votes, being a majority of the whole number 
 entitled to be cast in such joint assembly, and a majority of all the legal votes cast therein, he was 
 legally elected Senator from the State of Delaware for the full term commencing March 4, 1895, and is 
 entitled to be seated. 
 
 (11) The fact that such election is not certified by the governor of the State in pursuance of the 
 statute on that subject does not invalidate such election in any respect. 
 
 Your committee, therefore, report to the Senate the following resolution and recommend its 
 adoption: 
 
 Resolved, That Henry A. Du Pont is entitled to a seat in the Senate from the State of Delaware 
 for the full term commencing ilarch 4, 1895. 
 
 The minority held that because of the pecuUar provisions of the constitution 
 of Delaware the common law as to incompatibility would not apply. 
 
 The constitution of Delaware does not provide that the speaker of the senate, on the death of the 
 governor, shall either be or become governor, but only that such speaker "shall exercise the office of 
 governor." It does not provide that he shall, in such an event, cease to be speaker, or cease to be 
 senator, or that a vacancy exists in either position; and we do not think that we can amend the con- 
 stitution of a State by the process of an argument in a contested seat here. 
 
 Not only is no vacancy created in such instance by the devolution of "the exercise of the office of 
 governor" upon the speaker of the senate, but the constitution of the State expressly provides that 
 "each house, whose speaker shall exercise the office of governor, may choose a speaker pro tempore" — 
 that is, a temporary speaker to preside in the room of the permanent speaker when he may be absent, 
 thus plainly implying that there is no vacancy in the office of speaker, and that there is no vacancy 
 in the office of senator or representative (as no one could be speaker except a member of one of the 
 houses) by this devolution of the exercise of the office of governor. 
 
 In section 14 of the constitution, where it is provided that the speaker of the house "shall exercise 
 the office of governor" if there be no speaker of the senate, the distinction between the speaker of either 
 house exercising the office of governor, and the governor as such, is ven,- clearly implied in the phrase, 
 "until a governor elected by the people shall be duly qualified." And in the same section, afterwards, 
 the person elected governor is distinguished from the temporary occupant exercising the office of gov- 
 ernor by the recurrence three times of the phrase, "the person who exercises the office of governor." 
 And when the contingency arises of a vacancy in the office of governor, and there be no other person 
 who can exercise the office of governor within the provisions of the constitution, the general assembly 
 shall proceed to elect "a person to exercise the office of governor until a governor elected by the people 
 shall be qualified." 
 
 This person so chosen is not called governor, but a "person to exercise the office of governor." 
 
 And when, in the case of a contested election, someone is to be designated to perform guberna- 
 torial duties, it is provided "that the speaker of the senate or the speaker of the house who may then be 
 in the exercise of executive authority" shall continue therein until a determination of the contest. 
 It is manifestly expressed that the person exercising the executive authority is not the governor, but
 
 734 PRECEDENTS OF THE HOUSE OF REPBESENTATIVES. § 563 
 
 that he is, and remains, and must continue to be speaker of the senate, or speaker of the house, not- 
 withstanding the fact that the "exercise of the ofiice of governor" may for the time being devolve 
 upon him. 
 
 If this interpretation of the constitution of the State were at all doubtful, it is abundantly sus- 
 tained by practical, contemporaneous, and continuous construction in the actual administration of the 
 government of Delaware. Three persons, upon each of whom at different times devolved, under this 
 clause, the exercise of the office of governor (John Sykes, Jacob Stout, and Caleb Rodney), speakers of 
 the senate, who temporarily exercised the executive authority as such speakers, after they had exer- 
 cised the office of governor ad interim, returned to the senate and served out the terms for which they 
 had been elected as senators in the senate. No suggestion was made that they had vacated their office 
 as senators or had become governors of the State of Delaware by reason of the temporary exercise of 
 executive duties imposed upon them by section 14, article 3, of the constitution. 
 
 Furthermore, the minority contended : 
 
 The senate of the State of Delaware is made by law the judge of the elections, returns, and quali- 
 fications of its own members. In the case presented by Mr. Du Pont against the legality of the vote of 
 Mr. Speaker Watson as a member of the joint convention, no question is made as to the election and 
 return of Mr. Watson as a senator. The whole case rests upon the question of his qualifications. And 
 even upon the subject of qualification, it is not denied that at the time he took his seat in the senate, 
 he was fully and legally qualified to act and vote therein; but it is earnestly insisted that after he had 
 taken his seat he did and performed certain acts and duties which deprived him of his legal quali- 
 fications, and had rendered him unqualified, disqualified, and incompetent to vote or act as a 
 member of the senate or of the joint convention. 
 
 This position of the claimant, Mr. Du Pont, raises the most serious question in this case, which is, 
 as to who can lawfully decide and determine as to whether or not the acts of Mr. Speaker Watson referred 
 to destroyed or suspended his qualifications as a senator, and by consequence as a member of the joint 
 convention. 
 
 We think that the senate of the State of Delaware, whereof he was a member, is the sole tribunal 
 which could either hear or determine lawfully these objections to the qualifications of Senator Watson. 
 
 It is charged that be was absent from the senate from the 9th day of AprU, 1895, until the day of 
 the joint convention. If he were absent in discharge of any duties, executive or official by the law of 
 Delaware, incompatible with the office of senator, or if his absence was contumacious and perverse, this 
 might have constituted a cause for the judgment of the State senate for his ouster from the senate, his 
 suspension as a senator, or the vacation of his seat. If, whether present or absent, during his term, he 
 had committed any act in violation of the laws and constitution of his State, or of the United States, 
 this might have constituted a cause for the judgment of the State senate against him for his suspension 
 or for his expulsion; the vacation of his seat and office, and for the issuing of a writ of election for the 
 choice of his successor as senator from the county of Kent. 
 
 Causes for judgment of suspension, ouster, vacation, or expulsion against a sitting member or 
 senator are not, however well founded, judgments. They have legally none of the force or effect of 
 judgments or adjudications. There is no judgment or adjudication shown in the record or joiunal of 
 the senate of Delaware on any of these objections to the qualifications of Mr. Watson as a member of 
 that body. 
 
 If these charges or objections to his qualifications had been presented and heard in the State senate, 
 and judgment of suspension, ouster, and vacation had been rendered against him, the case of Mr. Du Pont 
 might have been fully made out. This Senate and court of the United States would have been bound 
 thereby. If such a hearing had terminated in his favor, the same result would have followed. The 
 judgment of the State senate is a finality. 
 
 As there was no hearing or judgment in respect to such charges in the State senate, the seat and 
 office of Senator Watson remains undisturbed and unaffected thereby. 
 
 Because the State senate did not pass upon these charges or objections to the qualifications of their 
 fellow-member, we in this body are not by law in any way authorized to take jurisdiction. We have no 
 authority to originate, hear, or determine any objections to the qualifications of those who acted and 
 voted as members of the senate of the State, or to revise or review their action or nonaction in the premises 
 
 These considerations rest upon the great doctrine of the due distribution of powers, and of
 
 § 564 CREDENTIALS AND PEIMA FACIE TITLE. 735 
 
 the distinctive provinces of independent powers, to which the claimant in this case has so strongly 
 appealed, and which we now justly invoke as showing the error of hie position. 
 
 The constitution of Delaware, like that of the other States, and of the United States, declares that 
 "each house shall judge of the elections, returns, and qualifications of its own members." 
 
 Each House of Congress is a court in such cases for the judgment of its own members, but neither 
 is a court or can be in any form a tribunal to judge of the qualifications of any member of the State 
 legislature. 
 
 The minority discuss in this connection the cases of Sykes v. Spencer, Turpie 
 and Clark and Magirmis v. Sanders and Power. Therefore the minority concluded : 
 
 First. That if there be any questions as to the lawful qualifications of William T. Watson to act 
 and vote as a senator, and, by consequence, as a member of the joint convention, this is not the place, 
 the time, or the tribunal to either hear or determine such questions. 
 
 Second. The senate of the State of Delaware had paramount and exclusive jurisdiction to adjudge 
 such questions, and, whether they exercised such jurisdiction or not, the Senate of the United States 
 has no jurisdiction in the premises. 
 
 Third. That Mr. Watson having acted and voted as a senator and as a member of the joint conven- 
 tion at the time when the vote was taken under which Mr. Du Pont claims his election to a seat 
 in this body, he is to be counted as a member of the legislature of Delaware in joint convention assembled ; 
 that the whole number of members voting, being the whole number of members of both houses, was 30; 
 that Mr. Du Pont did not receive a majority of this whole number; that we can not make his vote of 
 15 a majority of such whole number by subtracting therefrom the vote of one whose right and title to 
 vote is not shown by the record to have been adjudged against by the body of which he acted as a 
 member. 
 
 The report was debated at length in the Senate on March 5, 9-12, 18, 20, 31, 
 April 1, 2, 13-16, May 4, 14, 15.' 
 
 On May 15* the question was taken on the motion of Mr. Turpie to insert the 
 word " not " before the word " entitled " in the resolution proposed by the majority. 
 This amendment was agreed to — yeas 31, nays 30. So it was — 
 
 Resolved, That Henry A. Du Pont is not entitled to a seat in the Senate from the State of Delaware. 
 
 564. The case of Henry A. Du Pont, continued. 
 
 The Senate has decided that, while discovery of new evidence might 
 cause review of a decision in an election case, it should not for other rea- 
 sons change a judgment once made. 
 
 On January 12, 1897,' at the next session of the Congress, Mr. Chandler presented 
 a memorial from Henry A. Du Pont alleging that he is justly entitled to a seat in 
 the Senate from the State of Delaware, and that under the circumstances the ques- 
 tion of the validity of liis election should again be investigated and acted upon, and 
 that he hopes and expects to show on another consideration of the subject that he 
 is entitled to such seat, and praying the Senate to reconsider the case and seat the 
 petitioner. 
 
 The memorial was received and referred to the Committee on Privileges and 
 Elections. 
 
 At later dates various petitions and memorials on the same subject were pre- 
 sented and referred. 
 
 ■ Record, pp. 2419, 2477, 259.5, 2639, 2684, 2728, 2921, 3004, 3378, 3423, 3469, 3898, 3943, 3981, 4031, 
 4768, 5226, 5286. 
 
 ^Second session Fifty-fourth Congress, Record, p. 706.
 
 736 PRECEDENTS OF THE HOUSE OF EEPEESENTATIVES. § 564 
 
 On March 1 ' Mr. George F. Hoar, of Massachusetts, presented the unanimoua 
 
 report of the Committee, as follows: 
 
 Mr. Du Pont presented to the Senate, Decenaber 4, 1895, a petition for admission aa Senator from 
 the State of Delaware for what then remained unexpired of the term beginning March 4, 1895. 
 
 It appeared that at a joint convention of the two houses of the legislature of the State of Delaware, 
 duly held on the 9th day of May, 1895, 15 votes were cast for Mr. Du Pont and 15 votes for other candi- 
 dates. One of the votes cast for other candidates was the vote of the acting governor of the State of 
 Delaware, who had succeeded to the executive chair on the death of the governor. He was a senator 
 and the speaker of the Delaware senate at the time of the alleged election, the term of office for which 
 he had been elected for senator and speaker having not expired. If he were entitled to vote, Mr. Du 
 Pont was not lawfully elected. If he were not so entitled, Mr. Du Pont had a majority of 1 vote. The 
 question ot his right to vote depended upon the question whether his accession to the executive chair 
 by virtue of the constitution of the State shoxild deprive him of his title to vote as a senator. 
 
 That question was the only one raised in the discussion of Mr. Du Pont's title to a seat in the Senate. 
 The Committee on Privileges and Elections reported in his favor and there was a full discussion of the 
 question. 
 
 On the 15th day of May, 1896, the Senate passed the following resolution by a majority of 1 vote: 
 
 "Resolved, That Henry A. Du Pont is not entitled to a seat in the Senate from the State of Delaware 
 for the full term commencing March 4, 1895." 
 
 Mr. Du Pont now prays to have this question reopened. The grounds of his application, as stated 
 in his petition and by his eminent counsel in an argument addressed to the committee, are: 
 
 First. That there was a mistake in the pairs a.s announced when the vote on this resolution waa 
 taken, so that a senator who was in favor of Mr. Du Pont was paired against him. On investigation we 
 find that no such mistake occurred, and that every Senator who desired to vote who was in favor of 
 Mr. Du Pont either voted for him or was paired in his favor. 
 
 Second. That the petitioner expects to satisfy the Senate that it was wrong in its construction of 
 the constitution of Delaware when it held that the vote of the acting governor for another candidate 
 than Mr. Du Pont was lawful. 
 
 New Senators have entered the Chamber since the resolution just cited was adopted. Nothing 
 else has changed. The case then stated and acted upon is the case now stated. The simple question 
 is: Whether the Senate, notwithstanding its decision of May 15, 189G, will now admit Mr. Du Pont to a 
 seat? 
 
 The majority of your committee now, as then, are of the opinion that this decision of the Senate 
 was wrong; but the Senate is made by the Constitution, the judge of the elections, qualifications, and 
 returns of its Members, and its judgment is just as binding in law, in all constitutional vigor and potency 
 when it is rendered by one majority as when it is unajiimous. 
 
 It is clear that the word "judge" in the Constitution was used advisedly. The Senate in the case 
 provided for is to declare a result depending upon the application of law to existing facts, and is not to 
 be affected in its action by the desire of its members or by their opinions as to public policies or public 
 interest. Its action determines great constitutional rights — the title of an individual citizen to a high 
 office and the title of a sovereign State to be represented in the Senate by the person of its choice. We 
 can not doubt that this declaration of the Senate is a judgment in the sense in which that word is used 
 by judicial tribunals. We can conceive of no case which can arise in human affairs where it is more 
 important that a judgment of any court should be respected and should stand unaffected by caprice or 
 anything likely to excite passion or to tempt virtue. When the Senate decided the question it was 
 sitting as a high constitutional court. In its action we think it ought to respect the principles, in giving 
 effect to its own decision, which have been established in other judicial tribunals in like cases and 
 which the experience of mankind has found safe and salutary. 
 
 We do not doubt that the Senate, like other courts, may review its own judgments where new 
 evidence has been discovered, or where by reason of fraud or accident it appears that the judgment 
 ought to be reviewed. The remedy which in other courts may be given by writs of review or error or 
 bills of review may doubtless be given here by a simple vote reversing the first adjudication. We have 
 
 1 Record, pp. 2524, 2525.
 
 § 565 CREDENTIALS AND PRIMA FACIE TITLE. 737 
 
 no doubt that a legal doctrine involved in a former judgment of the Senate may be overruled in later 
 cases. But there is no case known in other judicial tribunals in which a final judgment in the same 
 case can be rescinded or reversed merely because the composition of the court has changed or because 
 the members of the court who originally decided it have changed their mind as to the law or fact which 
 is involved. 
 
 It seems to us very important to the preservation of constitutional government, very important 
 to the dignity and authority of the Senate, very important to the peace of the country, that we should 
 abide by this principle. There are few greater temptations which affect the conduct of men than the 
 temptation to seize upon political power without regard to the obligation of law. To act upon the 
 doctrine upon which this petition rests would expose the Senate to the temptation to reverse its own 
 judgments and to vacate or to award seats in this Chamber according as the changing majorities should 
 make possible. If such practice should be admitted it would, in our opinion, go far to weaken the 
 respect due to this body and the respect due to constitutional authority. 
 
 No further action was taken on this report, but at once the Senate acted on the 
 conclusions by admitting Mr. Richard W. Kenney to fill the seat in question. 
 
 565. The Maryland election case of Gabriel Duvall in the Third 
 Congress. 
 
 The House declined to seat a person bearing credentials regular in 
 form until it had ascertained whether or not the seat was vacant. 
 
 The resignation of a Member appears satisfactorily from his letter 
 directed to the governor of his State. 
 
 In its early years the House referred credentials for examination of 
 prima facie right after the bearer had been seated. 
 
 On March 24, 1794,' Mr. John Francis Mercer, of Maryland, appeared, produced 
 his credentials, and took his seat, the oath being administered by the Speaker. 
 
 As subsequently appears, Mr. Mercer, on April 13, 1794, by letter transmitted 
 to the governor of Maryland his resignation. He did not at that time, and appar- 
 ently did not at any other time, inform the House of his resignation. 
 
 On May 31, 1794,' the Speaker laid before the House a letter from the governor 
 of Maryland, inclosing a return of the election of Gabriel Duvall, in place of Mr. 
 Mercer. 
 
 At the beginning of the next session, on November 7, 1794,' these papers were 
 referred to the Committee on Elections, who reported on November 11,^ as follows: 
 
 That it appears from a certificate signed by the governor of the State of Maryland, in council, and 
 under the seal of the said State, that Gabriel Duvall was duly elected to serve in the House of Repre- 
 sentatives of the United States, in the place of John Francis Mercer, who resigned his seat. 
 
 That the resignation of the said John Francis Mercer appears from his letter, dated the 13th of 
 April, 1794, directed to the governor of Maryland. 
 
 Resolved, That, in the opinion of the committee, (labriel Duvall is entitled to take a seat in the 
 House, as one of the Representatives for the State of Maryland, in the stead of John Francis Mercer. 
 
 The resolution was agreed to, and Mr. Duvall took the oath. 
 
 566. On December 4, 1798,^ on the second day of the third session of the 
 Congress, a new Member, Robert Brown, returned to serve in the House as a Mem- 
 
 ' First session Third Congress, Journal p. 100 (Gales and Seaton, ed.). 
 ^Journal, p. 192; Annals, p. 742. 
 
 ' Journal, p. 225, Annals, p. 871, second session. Third Congress. 
 * Journal, p. 225; Annals, pp. 873, 874. 
 ^ Third session Fifth Congress, Journal, p. 400. 
 5994— VOL 1—07— — 47
 
 738 
 
 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. 
 
 §567 
 
 ber from Pennsylvania, in the room of Samuel Sitgreaves, appointed a commissioner 
 of the United States under the treaty with Great Britain, appeared and took his 
 seat in the House. 
 
 Although the Journal does not so state specifically, it is evident that he must 
 have taken the oath, since on December 14 ' he appears as voting. 
 
 On January 13, 1799,^ Mr. Joseph B. Varnum, of Massachusetts, from the Com- 
 mittee on Elections, "to whom was referred the certificates and other credentials 
 of the Members returned to serve in this House," made a further report, as follows: 
 
 That it appears from a letter of the governor of Pennsylvania to the Speaker of the House of Repre- 
 sentatives, bearing date the 29th day of December, 1798, and a return of the judge of election * * * 
 that Robert Brown has been duly elected as a Member of this House for the said district, in the place 
 of Samuel Sitgreaves, who has resigned his seat. 
 
 That the resignation of the said Samuel Sitgreaves satisfactorily appears from his letter to the 
 governor of Pennsylvania, bearing date the 29th day of August, 1798 (in the recess of Congress). 
 
 Your committee are therefore of opinion that Robert Brown is entitled to a seat in this House as 
 one of the Representatives for Pennsylvania, in the room of Samuel Sitgreaves. 
 
 567. The election case of Benjamin Edwards, of Maryland, in the 
 Third Congress. 
 
 The House declined to seat a Member-elect on presentation of a letter 
 of a State official showing that credentials had been forwarded to the 
 Speaker. 
 
 The House declined to seat a person bearing credentials regular in 
 form until it had ascertained whether or not the seat was vacant. 
 
 A letter from a Member stating that his resignation has been for- 
 warded to the governor of his State is satisfactory evidence of his resigna- 
 tion. 
 
 On January 1, 1795,^ the Speaker presented to the House a letter from Mr. 
 Uriah Forrest, of Maryland, dated December 24, stating that Benjamin Edwards 
 had been elected in his place, he having resigned to the executive of the State 
 of Maryland. The Speaker also presented another letter from John Kilty, clerk 
 of the council of Maryland, dated December 27, addressed to Benjamin Edwards, 
 informing him that an attested certificate of his election as a Representative for 
 the said State in place of Uriah Forrest had, by order of the council of the State, 
 been transmitted to the Speaker of the House of Representatives. 
 
 The House disregarded a suggestion that Mr. Edwards be admitted at once 
 to a seat, and referred the letters to the Committee of Elections. 
 
 On the same day the committee reported — 
 
 That it appears from a letter of the 27th of December, written by direction of the council of Mary- 
 land, signed by John Kilty, clerk of the councU, and directed to Benjamin Edwards, that an attested 
 certificate of the election of the said Benjamin Edwards, as a Representative in the room of Uriah For- 
 rest, had, on that day, been transmitted to the Speaker of the House of Representatives. 
 
 ' Journal, p. 408. 
 ^ Journal, p. 433. 
 
 ' Second session Third Congress, Contested Elections in Congress from 1789 to 1834, p. 92; Journal, 
 pp. 279, 280; Annals, p. 1041.
 
 § 568 CREDENTIALS AND PRIMA FACIE TITLE. 739 
 
 That the resignation of the said Uriah Forrest satisfactorily appears from his letter of the 24th of 
 December directed to the Speaker of the House of Representatives. 
 
 Resolved, That, in the opinion of the committee, the letters aforesaid are insufficient to establish 
 the right of Benjamin Edwards to a seat in the House as one of the Representatives for the State. 
 
 On January 2 the Speaker informed the House that he had received from 
 the governor of Maryland the certificate of Mr. Edwards. As the report of the 
 committee had not been acted on, the certificate was referred to the committee, 
 who made an additional report. 
 
 568. A Member-elect producing credentials showing his election to 
 fill the vacancy caused by the decease of his predecessor, is sworn in at 
 once, although no other notice of the decease may have been given to the 
 House. 
 
 In the early practice it was the duty of the Committee of Elections 
 to examine and report on the credentials of all the Members. 
 
 On January 29, 1795,' Mr. Aaron Kitchell, retm-ned from New Jersey in place 
 of Abraham Clark, deceased, appeared, produced his credentials, and having taken 
 the oath took his seat in the House. 
 
 In a similar manner, on February 9, Robert Goodloe Harper, of South Caro- 
 lina, was seated in place of Alexander Gillon, deceased. 
 
 Messrs. Clark and Gillon were present at the preceding session, answering to 
 their names on the roll call.' No notice of their deaths seems to have been given 
 the House until the credentials of their successors were produced. 
 
 On February 14,' the Committee of Elections, to whom the credentials were 
 referred,* although the Members were sworn in, reported that it appeared that each 
 was duly elected, in place of his deceased predecessor, and presented a resolution: 
 
 Resolved, As the opinion of the committee, that Aaron Kitchell is entitled to a seat in this House, 
 as one of the Representatives for the State of New Jersey, in the room of Abraham Clark, deceased. 
 
 This, and a similar resolution in the case of Mr. Harper, were agreed to by the 
 House. 
 
 ' Second session Third Congress, Journal, p. 308 (Gales & Seaton ed.). 
 
 -First session Third Congress, Journal, pp. 198, 210 (Gales & Seaton ed.). 
 
 'Second session Third Congress, Journal, p. 328. 
 
 * On November 7, 1794 (Journal, second session Third Congress, p. 224 (Gales and Seaton ed.)), the 
 House had: "Resolved, That a standing committee of elections be appointed, whose duty it shall be to 
 examine and report upon the certificates of election, or other credentials of the Members returned to serve 
 in this House; and to take into their consideration all such matters as shall or may come in question, 
 and be referred to them by the House, touching returns and elections, and to report their proceedings, 
 with their opinion thereupon, to the House." This became a standing rule of the House defining the 
 duty of the Committee of Elections (see Journal, first session Seventh Congress, p. 40 (Gales & Sea- 
 ton ed.)), and remained a rule until the revision of 1880. 
 
 This examination of credentials of all Members, irrespective of whether or not any question 
 had been raised, was a function of the Elections Committee from the very first. Thus, on April 18, 
 1789 (Journal, first session First Congress, p. 16 (Gales & Seaton ed.)), the committee reported on the 
 credentials of all the Members who had appeared. The same course was pursued at the beginning 
 of the Second and Third Congresses, although the form of the above resolution, specifically stating the 
 duties of the Elections Committee, dates from the first session of the Third Congress. (Journal, first 
 session Third Congress, p. 5 (Gales & Seaton).) The oath was administered, in ordinary cases, without 
 waiting for the committee's report. The custom existed as late as January 3, 1820. (Journal, fiirst 
 session Sixteenth Congress, p. 96.)
 
 740 
 
 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 § 569 
 
 569. Tlie prima facie election case of Doty and Jones, from Wiscon- 
 sin Territory, in the Twenty-fifth Congress. 
 
 A person appearing with credentials intended to entitle him to a seat 
 already occupied, the House declined to seat him at once and referred the 
 credentials. 
 
 On December 3, 1838,' at the beginning of the third session of the Congress, 
 the Delegate from Wisconsin, "George W. Jones, appeared and took his seat," ia 
 the language of the Journal. Mr. Jones had also been in attendance and held the 
 position of Delegate from Wisconsin at the preceding session. 
 
 After the roll had been called by States to ascertain the presence of a quorum, 
 and after the new Members had been sworn in, Mr. Isaac E. Crary, of Michigan, 
 informed the House that James Duane Doty was in attendance, and claimed to be 
 sworn in as the Delegate in tliis House from the Territory of Wisconsin. At the 
 same time Mr. Crary presented the credentials of Mr. Doty, which were read at the 
 Clerk's table. And thereupon Mr. Crary moved that the said James D. Doty be 
 quahfied accordingly. 
 
 Objection being made by Mr. George W. Jones, who claimed to be the sitting 
 Delegate from the Territory of Wisconsin, a motion was made by Mr. Charles F. 
 Mercer, of Virginia, that the subject of the right to a seat in this House as the 
 Delegate from the Territory of Wisconsin be postponed until Thursday next. This 
 motion was agreed to. 
 
 On December 10 the subject was referred to the Committee of Elections. 
 
 570. A claimant presenting credentials for a seat occupied by a Mem- 
 ber already sworn in, they were referred to a committee but were not acted 
 on. 
 
 On December 3, 1872,= Mr. Samuel J. Randall, of Pennsylvania, presented 
 credentials of Mr. Aleck Boarman as Representative-elect from the Fourth district 
 of Louisiana, to fill a vacancy caused by the death of Mr. James McCleary. The 
 credentials being in regular form, and there being no objection, Mr. Boarman was 
 sworn in. 
 
 On December 4 ' the Speaker annoimced that he had what purported to be 
 credentials of Mr. Harry Lott for the seat. The paper was referred to the Com- 
 mittee of Elections. 
 
 On December 19 ^ other credentials for Mr. Lott were similarly referred. 
 
 Mr. Lott's case did not come to a decision.^ 
 
 571. The prima facie election case of Samuel Dibble, of South Caro- 
 lina, in the Forty-seventh Congress. 
 
 The House gave prima facie effect to regular credentials, although a 
 contestant claimed the seat made vacant by death of the bearer's predeces- 
 sor. 
 
 Eorm of credentials given to a Member-elect chosen to fill a vacancy 
 caused by death. 
 
 'Third session Twenty-fifth Congress, Journal, pp. 7, 46; Globe, p. 1. 
 = Third session Forty-second Congress; Globe, p. 14. 
 ^Globe, p. 26. 
 
 *Globe, p. 315. 
 5 Globe, p. 1646.
 
 I 571 CREDENTIALS AXD PRIMA FACIE TITLE. 741 
 
 On December 5, ISSl,' at the time of the organization of the House, and while 
 the Speaker was administering the oath to the Members-elect, Mr. Samuel Dibble, of 
 South Carolina, was challenged and stood aside. After the unchallenged Members 
 had taken the oath ilr. Dibble's certificate was presented, as follows : 
 
 The State of Smith Carolina, by His Excellency Johnson Hagood, the governor of the State of South Carolina, 
 
 to the honorable the House of Representatives of the United States of America, Forty-seventh Congress: 
 
 ■Whereas a vacancy in the representation from the State of South Carolina of the Second Congres- 
 sional district thereof, composed of the counties of Charleston, Clarendon, and Orangeburgh, happened by 
 the death, on April 26, A. D. 1881, of Michael P. O'Connor, who, at the general election held November 2, 
 A.D. 1880, was chosen a Member of the said House of Representatives for said Congressional district; and 
 
 Whereas, in accordance with the Constitution of the United States, I, on May 23, A. D. 1881, issued 
 a writ of election appointing an election to be holden on June 9, A. D. 1881, to fill such vacancy; and 
 
 Whereas the returns show that such election was duly holden, and that at said election Samuel 
 Dibble received the greatest number of votes given at said election: 
 
 Now, therefore, I do hereby certify that the said Samuel Dibble has been duly elected a Member of 
 the House of Representatives of the United States of America, Forty-seventh Congress, for the Second 
 Congressional district of the State of South Carolina, composed of the counties of Charleston, Clarendon, 
 and Orangeburgh, to fill the vacancy in the representation from said State of South Carolina of the 
 Second Congressional district thereof, occasioned by the death of said Michael P. O'Connor. 
 
 Given under my hand and the great seal of the State of South Carolina, in Columbia, this twenty- 
 second day of June, in the year of our Lord 1881 , and in the one hundredth and fifth year of the sovereignty 
 and independence of the United States of America. 
 
 [seal.] Johnson Hagood, Governor. 
 
 By the governor: 
 
 R. M. Sims, Secretary of State. 
 
 Mr. William H. Calkins, of Indiana, after stating that there had been a contest 
 over the seat of Mr. O'Connor, of which as a court the House were bound to take 
 notice, and which contest had not been disposed of, raised a question as to the right 
 of Mr. Dibble to be sworn in on his prima facie case, the said question being stated in 
 the following preamble and resolution: 
 
 Whereas on the 2d day of November, 1880, in conformity to law, an election was held in the Second 
 Congressional district of the State of South Carolina for Representative in the Forty -seventh Congress of 
 the United States, at which election there were two candidates, namely, Hon. M. P. O'Connor and Hon. 
 E. W. M. Mackey, voted for; that as a result of said election a certificate was issued to Hon. M. P. 
 O'Coimor by the secretary' of state, bearing the seal of said State, and which is now on file with the clerk of 
 this House; and 
 
 Whereas Hon. E. W. M. Mackey, in conformity with law, served upon Hon. M. P. O'Connor notice of 
 contest, to which the said O'Connor filed his answer; and in pursuance thereof testimony was taken and 
 filed with the Clerk of this House, which still remains in his custody; that during the pendency of said 
 contest, and before this House could determine it, on the 26th day of April, 1881, Hon. M. P. O'Connor 
 died, and on the 23d day of May, 1881, the governor of the State of South Carolina issued his writ of elec- 
 tion to fill the supposed vacancy caused by the death of Hon. M. P. O'Connor; that as a result of said 
 special election the governor and secretary of state of said State issued to Hon. Samuel Dibble a certificate 
 of election to fill said vacancy, under which he now claims a seat on this floor: Now, therefore. 
 
 Be it resolved, That the certificate of election presented by the Hon. Samuel Dibble, together with 
 the memorial and protest and all other papers and testimony taken in the case of the contest of E. W. M. 
 >Iackey against M. P. O'Connor now on file with the Clerk of this House, be, and the same hereby are, 
 referred to the Committee on Elections, when appointed, with instructions to report it at as early a day 
 as practicable, either as to the prima facie right or the final right of said claimants to the seat as the 
 committee shall deem proper, and that neither claimant shall be sworn in till the committee report. 
 
 ' First session Forty-seventh Congress, Joiunal, p. 12; Record, pp. 14, 15.
 
 742 PEECEDENTS OF THE HOUSE OF REPRESENTATIVES. § •'^72 
 
 After debate, the House voted, without division, to lay the preamble and resolu- 
 tion on the table. 
 
 Mr. Dibble thereupon appeared and took the oath. 
 
 572. The prima facie election case relating to Newton and Yell, of 
 Arkansas, in the Twenty-ninth Congress. 
 
 The House seated a person bearing regular credentials on ascertain- 
 ing that his predecessor in the same Congress had accepted a military 
 office. 
 
 On February 6, 1847,' Thomas W. Newton appeared at the bar of the House, 
 presented his credentials as a Representative in the Twenty-ninth Congress from 
 the State of Arkansas, in place of Archibald Yell, and asked that the oath to support 
 the Constitution of the United States might be administered to him and he be 
 permitted to take his seat in the House. 
 
 Mr. George W. Jones, of Tennessee, having asked if there was any evidence 
 before the House that Mr. Yell had resigned his seat, and none being produced, 
 offered this resolution: 
 
 Resolved, That Thomas W. Newton, having presented credentials of his election as a Member of 
 this House from the State of Arkansas, and the House having received no information of the death, 
 resignation, or disqualification of Archibald Yell, heretofore elected and qualified a Member of the 
 Twenty-ninth Congress, the said credentials be referred to the Committee of Elections, and that the 
 said committee report thereon at the earliest practicable day. 
 
 Mr. William P. Thomasson, of Kentucky, moved the following amendment in 
 the nature of a substitute : 
 
 That Thomas W. Newton, who now presents his credentials of election as a Member of Congress 
 from the State of Arkansas, be sworn as a Member and take his seat; and that the credentials of hia 
 election be referred to the Committee of Elections. 
 
 In the course of the debate it was shown that the certificate of election simply 
 showed that Mr. Newton had been chosen to fill the unexpired term of Mr. Yell. 
 It also appeared, from an official communication to the House from the War Depart- 
 ment, that Archibald Yell had received a commission and been mustered into the 
 service of the United States. 
 
 The amendment proposed by Mr. Thomasson was agreed to, and the resolution 
 as amended was also agreed to. 
 
 573. The Senate election case of Shoup and McConnell, from Idaho, 
 in the Fifty-first Congress. 
 
 There being a question as to the vacancy to be filled, the Senate 
 examined the case before administering the oath to a bearer of regular 
 credentials. 
 
 Credentials signed by a governor certifying to his own election as 
 Senator were received by the Senate without question. 
 
 A question in the Senate as to whether or not credentials should set 
 forth at length the proceedings of the electing legislature. 
 
 On December 29, 1890,^ the Vice-President laid before the Senate a communi- 
 
 ' Second session Twenty-ninth Congress, Journal, pp. 305, 306; Globe, pp. 339-341. 
 ' Second session Fifty-first Congress, Record, pp. 843-848.
 
 § 574 CREDENTIALS AND PRIMA FACIE TITLE. 743 
 
 cation from the governor of Idaho, transmitting a certified copy of the proceedings 
 of the joint session of the legislature of Idaho for the election of United States 
 Senators, at Boise City, Idaho, December 18, 1890. 
 
 Ordered, That it lie on the table. 
 
 The Vice-President laid before the Senate the credentials of George L. Shoup 
 and the credentials of William J. McConnell, elected Senators by the legislature of 
 the State of Idaho ; which were read. 
 
 These credentials were regular in form; but there was one peculiarity. The 
 credentials of George L. Shoup as Senator were signed by "George L. Shoup, gov- 
 ernor." No question was raised, however, as to the right of a governor to certify 
 to his own election as Senator. Some question arose as to the failure of the creden- 
 tials to set forth at length the procedure of the legislature in joint convention; but 
 it was acknowledged that in many credentials this recitation at length was admitted. 
 Moreover, in this case a certified transcript had been sent as a separate paper. 
 
 Mr. Shoup was sworn in without objection. 
 
 Then Mr. Z. B. Vance, of North Carolina, moved to refer the credentials to the 
 Committee on Privileges and Elections. 
 
 The debate showed that the State of Idaho had been recently admitted to the 
 Senate, and that three Senators had been elected, one to take the vacancy that 
 seemed inevitable after March 3, 1891, under the Constitution and the practice of 
 the Senate as to assignment of Senators to classes. 
 
 Mr. McConnell, whose credentials had been presented this day, had been chosen 
 for the immediate vacancy, however, and it was urged that his right to be sworn in, 
 had he been present, was perfect. 
 
 On the other hand, it was argued that the State of Idaho could not assume what 
 action the Senate would take as to its classes. Therefore the motion to refer was 
 justified. 
 
 A motion by Mr. George F. Hoar, of Massachusetts, that the motion to refer 
 lie on the table, developed yeas 22, nays 15 — not a quorum. 
 
 Later, a quorum being present, Mr. Hoar withdrew his motion and the creden- 
 tials were referred. 
 
 On January 5 ' Mr. Hoar, from the committee, submitted this report: 
 
 That the said credentials constitute a sufficient certificate of the executive of the State under the 
 seal thereof, properly countersigned by the secretary of said State, and certifying the election of Mr. 
 Shoup and Mr. McConnell, respectively, as Senators from that State. Mr. Shoup has already been 
 admitted to take the oath and has taken his seat. 
 
 The committee therefore are of the opinion that Mr. McConnell should likewise be admitted to 
 take the oath as Senator, and that said credentials should be placed on file. 
 
 The credentials were accordingly placed on file, when Mr. McConnell appeared, and the oath 
 prescribed by law having been administered to him by the Vice-President, he took his seat in the Senate. 
 
 574. The New York election case of Noyes v. Rockwell in the Fifty- 
 second Congress. 
 
 The Elections Committee having ascertained that contestant right- 
 fiilly was entitled to prima facie title, the burden of proof was shifted to 
 sitting Member. 
 
 ' Record, p. 906; Senate Report No. 1904.
 
 744 PKECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 574 
 
 Decision of highest court of a State on construction of a State statute 
 should be binding on the House. 
 
 A State court decision that the formal returns of election officers 
 should prevail over accompansdng memoranda on sample ballots trans- 
 mitted in accordance with law. 
 
 On April 2, 1892,' ilr. Charies T. O'Ferrall, of Virginia, from the Committee 
 on Elections, presented the report of the majority of the committee^ in the New 
 York case of Noyes v. Rockwell.' At the outset the committee considered a ques- 
 tion as to the prima facie right, although sitting Member had the State certificate 
 and had taken the seat. This question is explained in the report: 
 
 The election statute of New York provides that immediately after the closing of the polls the in- 
 spectors of election shall count the ballots and publicly proclaim the result of their count before they 
 adjoiim. They shall also make three written statements showing the result, and these statements 
 they must complete and sign immediately after announcing the result. 
 
 "The policy of the law is to make final the action of the board at its meeting immediately follow- 
 ing the closing of the polls. (34 N. Y. State Rep., 127.) 
 
 "The law contemplates that the duties of inspectors shall in these respects be as promptly per- 
 formed as possible; for this purpose, among others, that the result may be determined and declared 
 without any bias arising from the knowledge of its effect upon the aggregate result or from exposure 
 to subsequent influences. (46 Hun, 390.)" 
 
 The statute also requires the inspectors of election to attach to these statements already mentioned 
 sample copies of the various ballots cast and to write upon each the number received, Mke the sample. 
 One copy of these statements the inspectors are directed to hand to the supervisor, or town or ward 
 official, who is ex officio a member of the county board of canvassers; to file another with the county 
 clerk of the county, who is ex officio secretary of the county board aforesaid, and to file the third copy 
 with the town or city clerk, as a local record of the election. 
 
 When the county board of canvassers of the county of Chemung convened they found a discrep- 
 ancy between the statements made in accordance with the result publicly proclaimed, completed, 
 and signed on the night of the election and the writing or indorsements on the sample ballots attached 
 in six districts of four wards in the city of Elmira, in the county of Chemung. 
 
 The statements indicated the following result: Noyes, 488 votes; Rockwell, 458 votes; majority 
 for Noyes, 30 votes. 
 
 The writing or indorsements on the sample ballots gave Noyes 466 votes, Rockwell 481; majority 
 for Rockwell, 15 votes. 
 
 A discrepancy between the statements and sample-ballots indorsements, it will be observed, of 
 45 votes. 
 
 The manner in which this discrepancy occurred will be shown hereafter under the heading of 
 "Recount." Suffice it to say here that the board of county canvassers of Chemung County discarded 
 the statements completed and signed on the night of the election, which corresponded with the publicly 
 declared result, which gave Noyes 30 majority, and adopted the figtires as shown by the indorsements 
 on the sample ballots attached, which gave Rockwell 15 majority, and certified the same to the board 
 of State canvassers. 
 
 On application of Mr. Noyes, Justice Smith, of the supreme coiu-t, issued a 
 peremptory mandamus directing the board of canvassers of Chemung County to 
 recanvass the retiu^ns and base the new canvass on the face of the retiurns instead 
 
 'First session Fifty-second Congress, House Report No. 968; Rowell's Digest, p. 474; Stofer's 
 Digest, p. 25; Journal, pp. 152, 154-156; Record, pp. 3421, 3448, 3489, 3536-3541, Appendix, pp. 234. 
 244. 
 
 2 The minority views were signed by Messrs. James E. Cobb, of Alabama, and E. P. Gillespie, of 
 Pennsylvania. 
 
 ^ It may be observed that the sitting Member belonged to the majority party in the House, and 
 the Committee on Elections proposed to unseat him and seat a Member of the minority party.
 
 § 575 CREDENTIALS AND PRIMA FACIE TITLE. 745 
 
 of on the ballots. This mandamus was issued December 2, 1890, the election hav- 
 ing been held on the 4th of the preceding November. An appeal was had to a 
 general term of the supreme court, and on February 3, 1891, that court affirmed 
 and sustained the order of Judge Smith. 
 
 Thereupon Mr. Rockwell appealed to the court of appeals, the highest judicial 
 tribunal in the State. On June 5, 1891, the court of appeals affirmed the decision 
 of the lower court. The report of the committee says in regard to this decision 
 and its consequences : 
 
 Justice O'Brien, of this court, in delivering the opinion of the court, concurred in by the other 
 eight justices, except Ruger, chief justice, who did not vote, and Earl, who dissented, used this 
 language: 
 
 "The words written Into the paper by the inspectors must be deemed to express the actual and 
 correct result of their count. They are precise and certain, and to the effect that a certain number of 
 votes were given for a person therein named for a designated office. Not so with the writing on the 
 ballot. That imports simply that a certain number of tickets of each variety were voted, from which 
 and from an inspection of the sample ballots themselves the actual vote for any given candidate may 
 or may not be accurately ascertained. * * * The act of the inspectors in stating the vote in the 
 body of the paper, the certificate that the same is correct, and the signature of each of them to the cer- 
 tificate, is, so far as the county canvassers are concerned, fimdamental, jurisdictional, and controlling, 
 while the words on the ballot are subordinate and incidental, and the duty of the inspectors in respect 
 to the same is probably directory merely. '' (Record, 181.) 
 
 Pending these proceedings in the courts, but after the decbion of the supreme court in special 
 session, to wit, on the 5th day of December, 1890, the State board of canvassers met, counted the figures 
 as indorsed on the sample ballots, and not as shown by the statements of the officers of election, and 
 awarded the certificate of election to Rockwell, and under and by virtue of it he now holds his seat. 
 
 Your committee are of the opinion that the decision of the court of last resort of a State upon the 
 construction of a statute of that State, and in a matter before them involving the construction of a stat- 
 ute of that State, should be binding upon them, and therefore they held that under the decision of the 
 said court of appeals, affirming the lower court, Xoyes was prima facie elected and was entitled to and 
 ought to have been awarded the certificate of election, and that the burden of proof was shifted from 
 Noyes to Rockwell, and it was incumbent upon him (Rockwell) to establish his title to the seat upon 
 the full merits of the case. 
 
 The minority do not appear to have dissented from this conclusion, and both 
 in their report and in the debate the differences of opinion were as to the final and 
 not the prima facie right. 
 
 575. The case of Noyes v. Rockwell, continued. 
 
 Discussion of validity of a recount after the time when, by the terms 
 of the law, the ballots should have been destroyed. 
 
 Registry of voters being required, the vote of a person not registered or 
 on the registry list was rejected by the House. 
 
 The votes of persons proven to have been corrupted by bribery are 
 rejected by the House. 
 
 A ballot accidentally placed in the wrong box should be counted. 
 
 Errors in initials or spelling of a candidate's name do not ordinarily 
 justify rejection of the votes. 
 
 As to the final right, the majority consider — 
 
 1. The effect of a recount of the ballots in the six districts of Ehnira, saying: 
 
 The statute of the State of New York does not provide for or authorize a recount of ballots in any 
 election, but in terms renders a recount in law impossible by requiring all the ballots except those
 
 746 PRECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 575 
 
 attached as sample copies to be destroyed immediately after the completion of the count by the inspect- 
 ors; and the ballots in these districts, in the language of the court of appeals, were, in contemplation of 
 law, destroyed. They had no legal existence after the board of inspectors dissolved, the night of the 
 election, and the board itself was functus officio; there was no l^;al custodian nor depository of the 
 ballots; they were worthless as e\-idence. 
 
 But the ballots were not in fact destroyed, and a recount in whole or part was 
 afterwards made by a portion of the election officers only, and a gain was found 
 for sitting Member. But the majority find from the evidence that the ballots had 
 not been safely kept. 
 
 There was no safeguard whatever thrown around them; they were in the custody of no one upon 
 whom any responsibility rested; there was no care taken of them with a \-iew to a possible recount; 
 they were left exposed in every instance so that they could have been despoiled by the unscrupulous 
 without fear of punishment, for they were in law as mere worthless paper. Full and ample opportunity 
 was given to tamper with them and to change them. 
 
 Therefore, even if a recount were legal, no confidence coiild be placed in this 
 recount, as there were abundant authorities to prove — 
 
 To recognize this recoimt would be in direct violation of every rule and precedent and convert a 
 serious matter into a most ridiculous biulesque. It would, if the precedent should be followed, throw 
 down the bars in every close contest, lead to frauds innumerable, and invite attacks without number 
 upon the official returns of sworn officers of the law, and by boards composed of friends of each of the 
 competing candidates, and destroy the verity of official returns. 
 
 The minority in their report ignore this recount, and in the debate Mr. Gobb 
 decUned to lay any stress on it, and although he intimated that he thought it more 
 reliable than the first count,* it can hardly be said that the minority antagonized 
 this position of the majority. 
 
 2. As to an imregistered vote the majority say: 
 
 We find that 1 vote was cast for Noyes by a party (Lewis Beach) who was not registered and whose 
 name was not upon the registry list of voters in the district in which he voted, as required by law. 
 We think this vote should be deducted from Noyes. 
 
 The minority concur in this. 
 
 3. As to bribed voters: 
 
 We find two parties, Sheridan and Green, who voted for Noyes, were each paid $2 to vote the 
 Republican ticket. 
 
 These votes should be taken from Noyes. 
 
 The minority concur in this, and would add one other to the number rejected. 
 Mr. Nils P. Haugen, of Wisconsin, who concurred generally with the majority, 
 dissented, holding that nothing in the evidence showed that either Sheridan or 
 Green voted for Noyes or the Republican ticket. 
 
 4. As to a ballot in the wrong box: 
 
 It is claimed that Rockwell lost 1 vote, cast by Patrick McDermott, by the ballot being put acci- 
 dentally in the wrong box by the inspector of election who received it. , 
 
 The evidence is conflicting, but we think the vote should be added to Rockwell's column. 
 
 The minority concur in this. 
 
 ' Appendix, p. 245.
 
 § 576 CREDENTIALS AND PBIMA FACIE TITLE. 747 
 
 6. As to ballots improperly rejected: 
 
 In Chemung County there were 3 ballots cast for Hosea Rockwell, 4 for H. H. Rockwell, 1 for 
 Hoeey Roctwell, and 1 for H. Rockwell, making 9, which were rejected by the canvassing board; we 
 think they should be counted for the contestee. 
 
 In the same county there was 1 ballot cast for H. Noyes and 1 for Henry T. Nois, and in Tomkins 
 County 1 for Henrj' Noyes, making 3 which were rejected by the canvassing board. We think they 
 should be counted for the contestant. 
 
 The minority concur in this. 
 
 576. The case of Noyes v. Rockwell, continued. 
 
 Where the law prescribes a penalty for putting a distingxiishing mark 
 on a ballot, but does not require rejection, should the ballot be rejected? 
 
 One of a series of ballots with similar distinguishing marks being 
 shown to be corrupt, the House, overruling its committee, inferred cor- 
 ruption as to all. 
 
 The law forbidding a voter to reenter the polling booth, may one who 
 failed in attempting to vote, return to effect the object? 
 
 Instance wherein the Elections Committee recommended seating of a 
 contestant of minority party; but were overruled by the House. 
 
 6. The real turning point of the case, as appears evident from the debate,' was 
 as to an alleged conspiracy to bribe, thus set forth in the minority views: 
 
 But the chief contention in this case is in regard to what are known as Doyle ballots. These were 
 sixteen in number, and were Republican pasters containing the name of the contestant for Congress. 
 
 At the election under examination Hon. Robert Earl was the candidate for judge of the court of 
 appeals. His name was on all the printed tickets of the Democratic and Republican parties, and was 
 the first name on each ticket. 
 
 On the sixteen tickets above mentioned the name of Robert Earl was erased and the name of Doyle 
 was substituted in this manner: On one ticket was the name A. Doyle; on another ticket B. Doyle; on 
 another, C. Doyle, and so on through the series. No two tickets contained the same initial letter, except 
 the name L. Doyle, which appeared on one ballot at two separate voting places. These several names, 
 A. Doyle, B. Doyle, etc., were all written in pencil, and were all written, as the evidence clearly shows, 
 by one Duncan McArthur. They were cast in the fourth and fifth districts of Waterloo. It is in proof 
 that Duncan McArthur was an active worker for the contestant, and the proof tends to show that he 
 was operating on the day of election with one Andrew Harmon and one B. H. Mongin. The three are 
 shown to have been engaged in bribing voters. It is further shown by the evidence of one man who 
 voted a Doyle paster that he was bribed. 
 
 It is contended that the taint of fraud can not attach to the whole Doyle series of votes without 
 more convincing evidence than is to be found in the record. 
 
 Let it be remembered that fraud can rarely, if ever, be proved by direct evidence, and that the 
 rule is that whenever a sufficient number of independent circumstances which point to its existence 
 are clearly established, a prima facie case of its existence is made, and that if this case is not met by 
 explanation or contradiction it becomes conclusive. 
 
 The circumstances, then, which are established in this contest and which strongly point to the 
 guilt of the whole sixteen voters using the Doyle ballots are: 
 
 (1) The Doyle ballots were pasters which had been written on. This is contrary to law. (See 
 section 676, Election Code of New York). 
 
 ' Mr. Cobb in debate set up an independent line of argxunent, which he did not mention in his 
 report, wherein he claimed that the testimony showed the election of sitting Member irrespective of 
 the so-called Doyle ballots. This argument, which will be considered, hardly displaced the Doyle 
 ballots as the main issue.
 
 748 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 576 
 
 (2) They were so marked as to be identified. This was contrary to law, and such marking sub- 
 jected the persons engaged therein to punishment on conviction. (Sec. 686, ib.) 
 
 (3) The ballots were prepared, all of them, by Duncan McArthur before they were given to the 
 voters, and Duncan McArthur was a briber of voters. 
 
 (4) One voter at least, and, as we believe, two, Ferris and Green, were bribed to cast Doyle ballots. 
 
 (5) The name Doyle was fictitious. 
 
 These facts we believe to be clearly proven. 
 
 From them it is clear that McArthur and his abettors were guUty of gross fraud. Did the sixteen 
 voters participate in the fraud? 
 
 If not, why did they vote for a fictitious person for judge of the court of appeals? What explan- 
 ation can be given for the use of a series of fictitious names — no two of them alike? 
 
 How is it that these ballots were so marked as to be identified easQy? Was it a coincidence merely? 
 If so, it could have been explained. It seems to us that these circumstances connect the whole series 
 of Doyle ballots and make a prima facie case at the least. Explanations were in order. It was imper- 
 atively demanded of the parties implicated. They were accessible; they were not called. 
 
 The minority further contended that the ballots might be excluded if the marks 
 were put on for ptirpose of identification, since the law of New York forbade the 
 voter, under penalty of punishment, to put on his ballot a mark by which it could 
 be identified. "It is a familiar principle of law," says the minority, "that when a 
 person does an act for the doing of which he may be punished, the act is void whether 
 it is in terms declared so or not." 
 
 The majority of the committee do not consider the evidence strong enough to 
 establish the fact that even one voter was bribed to throw a Doyle ticket, although 
 the testimony of Ollie Ferris might raise a suspicion as to himself. Assuming that 
 Ferris's testimony did show that he was bribed, the majority do not admit any 
 significance as to others: 
 
 The syllogism is this: A voted a Doyle ballot and admits he was bribed; B, C, D, and others voted 
 Doyle ballots; therefore they were bribed. 
 
 Everything must be presumed against innocence. All these men must be presumed to be guilty 
 because one man who voted the same ballot they did says he was bribed, and the curse of bribery must 
 rest on them. 
 
 If it should be insisted that McArthur and Harmon were engaged in the business of bribing voters, 
 and that this one man (Ferris), who voted one of the Doyle series of ballots, was bribed, therefore all 
 that voted that series were bribed, why not carry the reasoning further and say that McArthur and 
 Harmon were engaged in the business of buying votes, and that two men, Sheridan and Green, voted 
 Republican ballots and were bribed; therefore all that voted the Republican series of ballots were 
 bribed? There is as much reason, it seems to us, in one position as the other. 
 
 Suppose it was ascertained that E F voted one of these sixteen Doyle ballots, would any intelligent 
 man hold that he could be indicted and put upon his trial for bribery upon the facts developed iu this 
 case? Would any man with ordinary powers to discriminate between right and wrong hold that a 
 grand jury could find an indictment against E F for bribery upon the evidence in the record of this 
 case? Would he even hold that any justice of the peace could be found who wotild send E F on to 
 answer an indictment, on probable cause to charge him with bribery, under the facts we have stated? 
 
 We have reached our conclusion in regard to these Doyle ballots from the testimony in the record, 
 and not upon presumptions or suspicions which may come to any imaginative mind; but if we were to 
 enter the realm of presumptions we would prefer to presume that men are honest until the contrary ia 
 proved; that they are innocent of crime until they are proved to be guUty; if in a criminal case, to the 
 exclusion of every reasonable doubt; if in a civil case, at least by the preponderance of evidence. 
 
 " WTiere the facts of a case are consistent both with honesty and dishonesty a judicial tribunal will 
 adopt the construction in favor of innocence." (Lawson on Presumptive Evidence, 438.) 
 
 We hold that there is nothing to impeach these sixteen Doyle ballots except the one cast by Ferris, 
 and as to that we are in doubt whether it shovdd be excluded; but as it is not material it makes no 
 difference.
 
 § 576 CREDENTIALS XSD PRIMA FACIE TITLE. 749 
 
 The committee cite a decision, referred to as the Dutchess Country case, rendered 
 by the Nevr York court, in support of this doctrine. 
 
 In debate * the majority combated vigorously the proposition laid down in 
 the minority views that a ballot marked by the voter by a distinguishing mark was 
 thereby rendered void, Mr. O'Ferrall citing a decision in New York State to the 
 effect that while the statute forbade the voter to put a distinguishing mark on it, 
 the law did not go to the extent of rendering the ballot void if he did. 
 
 7. A question also arose as to certain other ballots described in the report. 
 
 In this connection we deem it proper to state that there were 28 ballots cast for Rockwell in the 
 second district of the Fifth Ward of Elmira, upon which there was a check mark on one corner and a 
 figure 5 on some and a figure 8 on others in the corner "diagonally opposite" the comer in which the 
 check mark appeared. It was claimed by Noyes that these marked ballots were open to as much sus- 
 picion as the Doyle ballots. Several witnesses introduced by Noyes to testify in regard to them declined 
 to answer the questions propounded under the advice of the attorney for Rockwell, upon the grotmd 
 that this was evidence which should have been introduced in chief, and that as it was introduced in 
 the time for testimony in rebuttal it was not admissible. 
 
 A motion was made by the attorney for Rockwell to strike out this evidence upon the grounds 
 stated, but the committee took no direct action upon the motion. 
 
 The minority urged that no effect should be given to these ballots, because evi- 
 dence as to them was taken in rebuttal, because no attempt was made to show why 
 the marks were put on them, and because no reference was made to them ia the 
 notice of contest. 
 
 8. As a part of his argument before the House,' but not as a part of his minority 
 views, Mr. Cobb urged that the record of testimony showed the election of sitting 
 Member independently of the Doyle ballots : 
 
 (a) Because three voters who had left the polling place after trying in vain to 
 mark their ballots had returned and been denied an opportunity to try again. The 
 law provided that no one who had voted should be permitted to reenter the booth; 
 but Mr. Cobb contended that this did not apply to one who had left the booth ^vith- 
 out voting. In opposition it was contended that by leaving the booth they sur- 
 rendered the right to vote. The law provided that the voter should "vote in the 
 manner provided by law, forthwith, before leaving the enclosed space." 
 
 (b) Because in a precinct in the city of Elmira, where the certificate of the elec- 
 tion ofBcers differed from the figures on the ballot, and where there had been no 
 recount, it was in evidence that the figures on the ballots were the true coimt, 
 thereby giving sitting Member sufficient gain to secure his election. The majority 
 did not deem the evidence strong enough or the circumstances certain enough to 
 justify this conclusion. 
 
 The report was debated at length from the 19th to the 22d of April, 1892. On 
 the latter day a resolution proposed by the minority, declaring contestant not elected, 
 was agreed to as an amendment — yeas 140, nays 98. Then a resolution declaring 
 sitting Member elected was similarly adopted — yeas 128, nays 106. Then the propo- 
 sition of the majority as amended was stated to the House, and a motion to recom- 
 mit the case, with directions to take testimony as to the Doyle ballots and the 28 
 Rockwell ballots irregularly marked, was made and decided in the negative — yeas 
 
 1 Appendix, p. 238, Remarks of Mr. O'Ferrall. 
 ^Appendix, p. 247.
 
 750 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 577 
 
 110, nays 124. The resolutions of the majority as amended were then agreed to 
 without division. 
 
 So the contention of the majority of the committee was defeated, and the sitting 
 Member retained the seat. 
 
 577. The Maryland election case of Mudd v. Compton in the Fifty- 
 first Congress. 
 
 The acts of county canvassing oflElcers being impeached, their returns 
 must be disregarded and the precinct returns should be consulted in 
 awarding prima facie title. 
 
 A county canvassing board having ministerial duties only are pre- 
 sumed to act correctly, but this presumption may be rebutted at any time 
 by reference to precinct returns. 
 
 Ballots bearing only the last name of a candidate, or incorrect initials, 
 should be counted when it is shown that no other person of the name is a 
 candidate. 
 
 Under the old ballot laws the appearance of a candidate's name twice 
 on the ballot did not prevent counting it as one vote. 
 
 It was held under the old ballot laws that a State statute as to form of 
 ballot should not be considered mandatory so as to cause rejection of a vote 
 wherein the intention of the voter is manifest. 
 
 A question as to how far the House, in counting votes, is bound by 
 the requirements of the State law. 
 
 It was held under the old ballot laws that a " paster " which covered 
 the designation of the oflB.ce should not work rejection of the vote, although 
 a State law so provided. 
 
 On February 27, 1890,* Mr. William G. Cooper, of Ohio, submitted the report of 
 the majority of the Committee on Elections in the Maryland case of Mudd v. Compton. 
 
 The sitting Member had been returned by an ofhcial majority of 29 votes, which 
 contestant assailed on the ground of irregularities and intimidation. 
 
 The examination of this case is naturally divided into three branches: 
 
 (1) As to the prima facie right. 
 
 The majority report quotes from the law of Maryland to show how the votes 
 were canvassed and the returns made up. The canvassing board of each coimty 
 made two certificates, one "to be delivered to the clerk of the county court for the 
 county and the other to be mailed to the governor." The governor then issues a 
 certificate to the person who, from the retiuns so sent to him, appears to have been 
 elected. The report then says: 
 
 According to the law of Maryland, the duties of the presiding judges when assembled at the county 
 seat are purely ministerial. They are to add up the votes of the precinct returns on the books of the polls 
 and to certify the results of this addition to the governor. They can neither throw out votes certified by 
 the precinct judges nor return votes not certified by the precinct judges. It is presumed, of course, that 
 the presiding judges will do their work accurately, and that their returns to the governor will contain a 
 correct summary of the votes in their county. This presumption is, however, merely a prima facie one, and 
 can be rebutted at any time by showing that these returns were, in fact, not a correct summary of the pre- 
 
 ' First session Fitty-fiist Congress, House Report No. 488; Rowell, p. 149.
 
 § 577 CBEDENTIALS AND PRIMA FACIE TITLE. 751 
 
 cinct returns; and when this is done the returns to the governor must be disregarded and resort had to the 
 primary evidence of the result of the election; that is, to the precinct returns themselves. 
 
 In this case the returns forwarded to the governor footed up for Barnes Compton 16,000 votes; 
 for Ck)mpton, 1 vote; for Sydney E. Mudd, 15,819 votes; for S. N. Mudd, 1 vote. The contestant denies 
 the accuracy of said returns to the governor, and files duly certified copies of the precinct returns from 
 everj' precinct in the Congressional district (record, pp. 712 to 779), which show that the vote in the 
 district for the contestant and the contestee was as follows: 
 
 For Sydney E. Mudd 16, 279 
 
 For S. N. Mudd 1 
 
 For S. E. Mudd 1 
 
 For Mudd 1 
 
 "One ticket upon which Sydney E. Mudd's name appeared twice and Mudd's name was not 
 counted in the above returns " 1 
 
 Total 16,283 
 
 For Barnes Compton 16, 280 
 
 Plurality for Sydney E. Mudd 3 
 
 Comparing these precinct returns with the returns made to the governor, it is found: 
 
 (1) That the returns to the governor from the counties of Howard, Anne Arundel, and Baltimore, 
 and from the city of Baltimore, were accurate summaries of the precinct returns and were correct. 
 
 (2) That in the third district of St. Marys County there were returned by the precinct judges 1 vote 
 for "S. E. Mudd," and 1 vote for "Mudd," but the presiding judges did not include these votes in their 
 return to the governor. 
 
 (3) That the returns from the fifth and ninth districts of Charles County were not included in their 
 returns to the governor, because at the time the presiding judges made up their returns the returns from 
 these precincts were sealed up in the boxes which the presiding judges had no authority to open.' These 
 boxes were afterwards opened by an order of court, and certified copies of the returns found in them have 
 been filed, which show that the contestant received in these districts 432 votes and the contestee 280 
 votes. 
 
 (4) That the face of the precinct returns from the sixth district of Charles County shows: 
 "There was one ticket upon which Sydney E. Mudd's name appeared twice and Mudd's name was 
 
 not counted in the above returns." 
 
 (5) That in Calvert County the returns to the governor allow the contestant 1,138 votes, whereas the 
 actual vote cast and counted in this county, and shown by the certified copies of the precinct returns 
 (record, pp. 746 to 749), was 1,166. Mr. Mudd called the return judges of every precinct in the county 
 (record, pp. 271-27.5), and proved by them that the returns then on file in the clerk's office were the very 
 returns which they made and were in no way altered. He proved by the editor of the Democratic paper 
 in the county town that on the day the returns were made up he copied them for his paper and that they 
 gave the contestant 1,166 votes. He proved by the clerk of the court that immediately upon seeing it 
 stated in the newspapers that the return to the governor gave the contestant only 1,138 he wrote to the 
 governor stating that a mistake had been made and asking permission to correct it. The deputy clerk 
 of the court who made up the returns to the governor swears himself that these returns so sent on by him 
 were erroneous and that those in the clerk's office were correct (see record, pp. 271-275). If the precinct 
 returns of any precinct had been altered the contestee could have offered some evidence to show that 
 such alterations had taken place, but he did not, in fact, take any testimony whatever upon the subject. 
 The committee believe that the contestee is simply trying to raise a technical point of evidence to defeat 
 the contestant's claim to 28 votes, which no one can seriously doubt the contestant received, and that the 
 contestant's vote in Calvert County was 1,166. 
 
 (6) That in the precinct returns from Prince George County (record, pp. 762-772) there was no 
 mention of a vote for "Compton," which the presiding judges in their return to the governor say was 
 cast in the tenth district of the county, and consequently the presiding judges had no right to include 
 
 ' These returns were put into the ballot box by mistake; when once sealed the box might not be 
 opened legally by the election officers.
 
 752 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 577 
 
 it in their return to the governor. The contestant has, however, attempted to show that he was entitled 
 to the vote, by offering in evidence a certificate of the clerk of the court of the county (record, p. 610), 
 that on one of the tally lists of the district there appears, "one ticket for Compton,' not counted for 
 Barnes Compton;" on the other of said tally sheets, "one ticket for Compton, torn, not counted for 
 Barnes Compton." There is no other evidence concerning this vote. The tally lists are not a part of 
 the certificate or statement from which the law requires the presiding judges to make up their return; 
 and if they were, their contents are not sufficiently proved by a certificate of the clerk that such and 
 such a thing appears upon them. Public officers prove public records, not by statements as to what 
 their contents are, but by certified copies of the documents themselves. Moreover, it would seem, from 
 statements quoted from one of the tally lists referred to that the judges may have decided that the 
 voter intended to cancel his ticket as to candidate for Congress by tearing it. 
 
 For these reasons the committee does not think it clear that the contestee is by the evidence enti- 
 tled to this vote, but thinking it likely that such a vote may have been cast has concluded to allow it. 
 Upon the face of the returns the committee, therefore, finds that the vote stood: 
 
 For Sydney E. Mudd 16, 279 
 
 For S. E. Mudd 1 
 
 For S. N. Mudd 1 
 
 For Mudd 1 
 
 One ticket on which Mudd's name appeared twice, not counted for Mudd 1 
 
 16,283 
 
 For Barnes Compton 16, 280 
 
 For Compton 1 
 
 16, 281 
 
 Plurality for Sydney E. Mudd 2 
 
 There were no persons l)y the name of Mudd and Compton other than the contestant and the con- 
 testee candidates for Congress at this election; and, therefore, under the well-established rule of the 
 House, the vote for "Compton," if counted at all, should be counted for the contestee, and the votes for 
 "S. E. Mudd," for "Mudd," and for " S. N. Mudd," for the contestant. It is well settled by the authori- 
 ties that the fact that the same candidate's name is on the same ticket more than once is no reason 
 why that ticket should not be counted as one vote for that candidate. It would therefore follow that 
 the contestant is entitled to the one vote not counted for him, because his name is on the ticket twice. 
 The contestee has, however, offered evidence that this ticket was not counted for the contestant, not 
 because the name was on the ticket twice, but because the paster (upon which his name was printed) 
 was pasted on the regular Republican ticket so as to cover up the designation of the office for which 
 he was a candidate. If this be granted, it still remains true that whenever the intention of the voter 
 is clear and unmistakable, effect should be given to it; and no one can have any doubt that the 
 voter of this ticket — a straight Republican ticket — intended to vote for Mr. Mudd for the only office 
 for which he was a candidate. No provision of a statute regulating the form of ballots will be held, or 
 was ever intended to be held, as mandatory in contravention of such a plain and manifest intent. The 
 committee is therefore of the opinion that contestant is entitled to this vote, and will count it. 
 
 The minority ' say on this point : 
 
 A paster was pasted over the words "for Congress." The testimony of the judges, Sasscer and 
 Cox, clearly shows this (record, pp. 456-457). Article 33, section 65, Statutes of Maryland (record, 
 p. 639), required the ticket should be thrown out. 
 
 In the debate it was asserted by Mr. John F. Lacey, of Iowa, that although 
 there might be a law of the State of Maryland, yet the House was judge of the 
 elections of its own Members, and the House had always held that in such a case 
 the vote should be counted.^ It was replied by Mr. Moore that the law of Mary- 
 land was mandatory and that the position of the majority was unprecedented.* 
 
 ' Minority views presented by Mr. L. W. Moore, of Texas. ^ Record, p. 2394. ^ Record, p. 2408. 
 
 ^
 
 § 578 CREDENTIALS AND PKIMA FACIE TITLE, 753 
 
 578. The case of Mudd v. Compton, continued. 
 
 An instance wherein an Elections Committee, in a sustained case, 
 ascertained prima facie title after the sitting Member had taken the seat. 
 
 The Elections Committee having ascertained that prima facie title 
 should have been awarded to contestant, the burden of proof was shifted 
 to sitting Member. 
 
 The majority conclude on this branch of the case: 
 
 The face of the returns, then, in the opinion of the committee, show that the contestant was 
 entitled to 16,283 votes and the contestee to 16,281 votes, giving the contestant a plurality of 2 votes. 
 Such being the case, the burden of showing that these retiirns (the primary evidence of the result of 
 the election) were not correct is thrown on the contestee. 
 
 579. The case of Mudd v. Compton, continued. 
 
 Qualified voters being denied the right to vote because other persons 
 had voted on their names, the House counted the votes for the candidate 
 for whom they were offered without deducting the illegal votes. 
 
 The House, relying somewhat on a Federal statute, counted ballots of 
 voters whose names after registration were omitted from the poll list, 
 that list being conclusive on the election officers. 
 
 While notice of contest should state specifically the points on which 
 testimony is adduced, yet the committee sometimes waives the strict 
 requirement of the rule. 
 
 Criticism of evidence introduced in rebuttal. 
 
 (2) As to certain disputed votes, questions arose: 
 
 (a) Six persons offered their votes for contestant and were refused the right 
 to vote by the judges, for the alleged reason that in each case some one else had 
 previously voted on the name. The majority ruled that these votes should be 
 cast for contestant, saying: 
 
 It is bad enough that a person who has no right to vote gets his vote in; it would be worse if by 
 getting his vote in he kept an honest man's vote out. 
 
 The minority objected to this ruling, but the majority defended it in the debate,' 
 where the subject was examined fully. It did not appear that there was any evi- 
 dence as to who voted wrongfully on the names or for whom the illegal votes were 
 cast. There would be a presumption, of course, that they were cast for the can- 
 didate for whom the six real voters would not have voted. But the majority of 
 the committee simply contented themselves with counting the six legal votes 
 offered and rejected. 
 
 (b) An important class of disputed votes is thus referred to by the majority 
 report : 
 
 A large number of votes on both sides were rejected because the voters who had duly applied for 
 registration and been registered found their names omitted from or inaccurately copied on the poll 
 books. It is urged by the contestee that the law of Maryland makes the poll book conclusive evidence 
 of the right of a man to vote, and that these votes can not be counted. The committee can not assent 
 to this proposition. 
 
 ' Record, p. 2395. 
 5994— VOL 1—07 48
 
 754 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 579 
 
 The law simply lays down a rule of evidence for the judges of election, and is intended to reduce 
 to a minimum their judicial functions. Into the qualification of voters they can not inquire. All 
 they have the right to pass upon is the question whether or not a person offering to vote is the person 
 whose name is on the poll book. This limitation is imposed upon them because, in the view of the 
 Maryland law, a polling window on election day is not a proper place to investigate questions of quali- 
 fication. A simple rule is laid down for the guidance of the judges, and any injustice which may be 
 done by the application of this rule can, if necessary, be corrected by the tribunal before which the 
 contest is made. The class of cases about which we have been speaking, together with another class 
 represented by a vote on each side in which the voter was improperly refused registration, are the very 
 sort of cases to provide clearly for which the third section of the act of Congress of May 31, 1870, was 
 enacted, which section reads as follows: 
 
 "That whenever, by or under the authority of the constitution or laws of any State or the laws of 
 any Territory, any act is, or shall be, required to be done by any citizen as a prerequisite to qualify 
 or entitle him to vote, the offer of any such citizen to perform the act required to be done as aforesaid 
 shall, if it fail to be carried into execution by reason of the wrongful act or omission of the person or 
 officer charged with the duty of receiving or permitting such performance or offer to perform or acting 
 thereon, be deemed and held as a performance in law of such act, and the person so offering and fail- 
 ing as aforesaid, and Ijeing otherwise qualified, shall be entitled to vote in the same manner and to the 
 same extent as if he had performed such act." 
 
 The admission of such votes is in accord with the unvarying practice of Congress and the 
 almost uniform decisions of the courts, and the committee will count all such votes properly proved 
 on both sides. 
 
 The minority say : 
 
 The constitution of the State (article 1, section 1) prescribes the qualifications of all voters. Sec- 
 tion 5 of the same article provides that the general assembly shall provide for a general registration of all 
 persons possessing the qualifications prescribed by the constitution that the registration shall be conclu- 
 sive evidence to the judges of the right of the person to vote, and that no person shall vote whose name 
 does not so appear. 
 
 The legislature, in accordance with these provisions, have provided for registration, and since the 
 adoption of the constitution of 1864, in which the same provisions appear, all elections have been held 
 under registration laws. 
 
 The judges of election are required to take an oath to "permit all persons to vote whose names shall 
 appear on the registry or list of voters furnished to him according to law," and that he "will not permit 
 any one to vote whose name shall not be found upon said registry or list of voters." (Record, pp. 6, 36, 
 sec. 48.) 
 
 The contestant in his brief relies upon the act of Congress of May 31, 1870. This act was declared 
 unconstitutional by the Supreme Court. (United States v. Reese, 92 U. S. Rep., p. 214.) 
 
 Over this point much discussion occurred in the House. ^ On behalf of the 
 majority it was asserted that the law had been changed since the decision of United 
 States V. Reese, and that the constitutionality of the law quoted in behalf of 
 contestant was fully sustained by the decision in United States v. Mumford (16 
 Federal Reporter). Also the case of the United States v. Siebold was quoted. 
 
 (c) A question as to pleading is disposed of as follows by the majority: 
 
 The contestee has offered to prove a number of votes lost l)y him because of inaccuracies on the 
 poll books, not otherwise referred to in his answer than by an allegation that in a very large number of 
 other election districts he lost votes from this cause, and more votes from such cause than the contestant. 
 
 The contestant objects to the admission of this testimony on the ground that this general allegation 
 does not, in the language of the statute governing contested elections, state "specifically the other 
 grounds " upon which the sitting Member rests the validity of his election ; and the committee is inclined 
 to agree with the contestant, but as the committee in this case has no doubt that the contestee was really 
 
 ' Record, pp. 2396, 2409, speeches of Messrs. Lacey and Dalzell.
 
 § 580 CEEDENTIALS AND PEIMA FACIE TITLE. 755 
 
 entitled to some of the votes of this class which he has proved, the contestee will be allowed the votes 
 he has proved he lost from inaccuracies of the poll books, whether the loss of these votes was or was not 
 specifically alleged. The committee, however, on the same principle, will allow the contestant the 
 votes he proved in rebuttal of the contestee's allegation in paragraph 9 of his answer, that the contestee 
 lost more votes than the contestant because of inaccuracies on the poll books. In most cases the con- 
 testant proved how the person, whose vote he claimed to have lost in this way, would have voted had 
 his vote been received, by the testimony of the voter himself. 
 
 The minority object, saying: 
 
 Not only did he not claim them in his notice, but he attempted in violation of every principle of 
 law to offer his testimony in the time allowed him for rebuttal only. 
 
 This testimony was in each case specifically excepted to. (Pp. 493, 494, 556, 557.) 
 
 The attempt to make this claim in rebuttal comes directly within the case of Lynch v. Vandiver 
 (Mobley, p. 659), in which the committee say that "testimony offered in rebuttal which seeks to establish 
 facts not entered into in the direct examination, is in \'iolation of every known principle of the laws of 
 e\'idence, and will not be considered." 
 
 The contestee had no opportunity to show that these parties had not tendered their votes, or any 
 other evidence tending to deny the claim made by contestant. 
 
 580. The case of Mudd v. Compton, continued. 
 
 Votes proven by merely showing the party aflQ.liation of the voter have 
 been counted by the Elections Committee. 
 
 Discussion of the degree of intimidation justifying the House in 
 counting votes of persons prevented from reaching the ballot box. 
 
 The presence of armed and threatening persons at the polls, some 
 personating officers of the law, was held to constitute intimidation justi- 
 fying revision of the returns. 
 
 (d) As to determining how certain persons voted: 
 
 The contestee, in a much larger proportion of the votes he proved, showed how they would have 
 voted * * * by merely proving that the voter was or had been a Democrat. The contestant objects 
 to votes proved in this last-mentioned way being counted, on the ground that as he received a great 
 many Democratic votes in the district, there is no certainty that these voters wanted to vote for contestee. 
 The committee, however, has decided to allow the contestee these votes. 
 
 (e) The majority decide to recognize the validity of a recount in certain 
 precincts, by which sitting Member gained 19 votes, although there seemed to be 
 suspicious circumstances connected therewith. 
 
 (3) The majority of the committee decided as follows in regard to charges of 
 intimidation: 
 
 The committee finds that the votes of the first precinct of the third district of Anne Arundel County 
 should be thrown out. The vote, as returned in this precinct, was 168 for the contestee and 32 for the 
 contestant. The undisputed facts concerning this precinct are that there were registered therein 
 475 persons, 252 of whom were white and 223 colored; that of these 475 only 206 voted, and of those who 
 voted 191 were white men, and 15 were colored; that when the polls opened 4 white men voted, then 
 15 colored men, and then 187 white men. The contestant has examined 175 colored voters of this 
 district who did not vote; of these 175, 161 were on the polling ground; many of these walked or rode 
 many miles to the polls, and some who were temporarily away from home returned from Baltimore, 
 Annapolis, Steelton, and other places to vote. All of these men swear that they wanted to vote (and 
 most of them were at the polls with their tickets in their hands for the purpose of voting) for the con- 
 testant; 14 others swear that they started from their homes and walked a greater or less distance toward 
 the polls and then turned back in consequence of what they heard as to the proceedings at the polls. 
 
 There is no dispute that there were present at the polling place, from before the opening, of the 
 polLs at 8 o'clock in the morning until late in the afternoon, a number of persons who were not residents
 
 756 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 580 
 
 of the precinct; that those of them who were identified were residents and registered voters of Baltimore 
 City, and that they drove down from Baltimore, reaching the polls before any of the voters, and drove 
 back in the late afternoon; that those men, or some of them, wore badges with the words "U. S. deputy 
 marshal" upon them, and claimed to be such; that this claim was altogether false; that these men wore 
 armed with pistols, which at certain periods of the day they were firing within the hearing of the polling 
 place; that there were a number of guns in a wagon which brought them from Baltimore; that before 
 the polls opened they placed themselves within a few feet of the window at which the citizens were to 
 vote, and that in a very few minutes after the polls opened they seized and dragged from the line two 
 or more colored voters (among them a man of some 70 years of age, a large property owner and tax payer, 
 a resident of the district for twenty-five years, and a universally respected citizen) and told them that 
 they could not vote. The person just referred to (who from age and standing was evidently the most 
 influential colored man present) asked if the colored people were not to be allowed to vote, when the 
 crowd from Baltimore answered, "Not a damn nigger shall vote unless he votes for Cleveland." The 
 old colored leader then told the other colored men not to make a fuss, but as they could not vote to go 
 away peaceably. A number of them did, but the larger number remained about the polling place for 
 some time longer and occasionally one of them would attempt to reach the polling place. 
 
 In every such instance they were met by some one of the strangers or by one of the well-known 
 Democratic leaders of the precinct and told that they could not vote; and when they still pressed on, 
 they were struck at and compelled to fall back. A number of colored voters still remained in the 
 neighborhood of the polls, and, in order to get them away, the leader of the Baltimore gang — a man 
 whom the witnesses all call "Tip Wells," but whose real name is proved to be John H. Wills — told a 
 man named Ed. Pumphrey, a resident of the neighborhood, to go among the negroes, tell them that 
 there was a gang of roughs from Baltimore there, that they had guns, and that more were coming down 
 from Baltimore in the next train, and that they would have to fight these armed men if they wanted 
 to vote. Pumphrey went down to where the negroes were, moved around among them, telling them 
 what Wells directed him to tell, and adding that he was a deputy sheriff, that he could not protect them, 
 and if they took his advice they would go home. He then came back and reported to those who sent 
 him what he had done. Fifty or more of the colored voters testified that they heard Pumphrey telling 
 them to go home; that there was a wagon load of roughs there with guns, and that more were coming, etc. 
 
 After commenting on the fact that the leaders in the intimidation were not 
 called to rebut the charges, the majority say: 
 
 The contestee claims that if this were all so, the negroes had physical force enough to have voted if 
 they had persisted in doing so. The committee holds that a citizen has a right to a free and unmolested 
 approach to the ballot box and is not bound to fight his way to a polling window, especially when to do 
 BO he must come into conflict with persons who claim to be officers of the law, the truthfulness of which 
 claims he has no means of negativing, and that a candidate, whose supporters have done all in their 
 power to make voters believe that they would suffer injury if they attempted to vote, can not be heard 
 to say that the intimidated voters should not have believed the threats made to them. * * * The 
 contestant proves that he lost at least 175 votes as a result of this intimidation. 
 
 The minority, after examining the testimony, concluded that the disorder was 
 not sufficient to have intimidated a man of ordinary firmness. 
 
 As a result of their reasoning the majority found a plurality of 154 votes for the 
 contestant, and recommended the following: 
 
 Resolved, That Barnes Compton was not elected as a Representative to the Fifty-first Congress from 
 the Fifth district of Maryland and is not entitled to the seat. 
 
 Resolved, That Sydney E. Mudd was duly elected as a Representative for the Fifth Congressional 
 district of Maryland to the Fifty-first Congress and is entitled to his seat as such. 
 
 The minority dissented from this conclusion and recommended : 
 
 Resolved, That S. E. Mudd was not elected as a Representative to the Fifty-first Congress from the 
 Fifth Congressional district of Maryland. 
 
 Resolved, That Barnes Compton was duly elected and is entitled to retain his seat.
 
 & 581 CREDENTIALS AKD PRIMA FACIE TITLE. 757 
 
 The report was debated at length on March 19 and 20, 1890,' and on the latter 
 day the question was taken on a motion to substitute the minority for the majority 
 resolutions. This motion was disagreed to, yeas 145, nays 155. Then the resolu- 
 tions of the majority were agreed to, yeas 159, nays 145. Thereupon Mr. Mudd 
 appeared and took the oath. 
 
 581. The West Virginia election case of Smith v. Jackson in the 
 Fifty-first Congress. 
 
 A board of county canvassers, legally competent to recount, may make 
 such recount even after it has certified and forwarded the result of the 
 first count. 
 
 A county court charged by law with the duty of canvassing precinct 
 returns may correct its returns by a supplemental certificate, which 
 should be taken into account by the governor in issuing credentials. 
 
 On Januarj^ 23, 1890,^ ilr. John Dalzell, of Pennsylvania, presented the report 
 of the majority of the Committee on Elections in the West Virginia case of Smith v. 
 Jackson. 
 
 The governor had issued a certificate to sitting Member on finding a plurality for 
 him of 3 votes. Contestant claimed that the true vote as shown by the returns of 
 highest authority gave to himself a plurality of 12 votes. 
 
 Two questions therefore arose : One as to the prima facie right and another as 
 to the final right. 
 
 (1) As to the prima facie right. Two leading questions were discussed in this 
 branch of the case. 
 
 (a) The report says: 
 
 Under the laws of West Virginia (Code, sec. 22, ch. 3) it is made the duty of the commissioners of 
 the county courts in each Congressional district to transmit to the governor a certificate of the result 
 of the election within their respective counties, "and in the said certificate shall be set forth, according 
 to the truth, the full name of every person voted for, and in words at length the number of votes he 
 received for any office." 
 
 The commissioners of Ritchie County sent two certificates, the first giving 
 Smith a majority of 567 votes, and the second giving Smith a majority of 570 votes, 
 a difference of 3 votes favorable to contestant. The report says: 
 
 The second certificate correctly represented the result of a recount of the votes, made at the instance 
 of the contestee. The governor accepted the first and rejected the second certificate, and thus took away 
 from Smith 1 vote and added to Jackson 2 votes. 
 
 The law of West Virginia with respect to a count and recount of returns is as follows (Code, sec. 21, 
 ch. 3): 
 
 " The commissioners of the county court shall convene in special session at the court-house on the 
 fifth day (Sundays excepted) after every election held in their county, or in any district thereof, and 
 the officers in whose custody the ballots, poll books, and certificates have been placed shall lay the 
 same before them for examination. They may, if deemed necessary, require the attendance of any of 
 the commissioners or canvassers, or other officers or persons present at the election, to answer questions 
 under oath respecting the same, and may make such other orders as shall seem proper to procure correct 
 returns and ascertain the true result of the said election in their county. They may adjourn from time 
 to time, and when a majority of the commissioners is not present their meeting shall stand adjourned 
 
 'Record, pp. 2392, 2440-2449; Journal, pp. 364, 365. 
 
 ^ First session Fifty-first Congress, House Report No. 19; Rowell, p. 13; Rowell's Digest, p. 436.
 
 758 PRECEDENTS OF THE HOUSE OF REPKESENTATIVES. § 582 
 
 till the next day, and so from day to day tiU a quorum be present. They shall, upon the demand of any 
 candidate voted for at such election, open and examine any one or more of the sealed packages of ballots 
 and recount the same, but in such case they shall seal up the same again, etc." 
 
 After quoting the second certificate the report says: 
 
 This certificate the governor ignored altogether, and the contestee now seeks to justify his action 
 by saying that upon the making of the original certificate the county court was functus officio, powerless 
 even to correct an error; and that a recount can be had only when the demand therefor is made prior 
 to the issue of a certificate. This contention is directly in the teeth of the contestee's own action in 
 demanding the recount, and is not in the judgment of your committee tenable on any ground. 
 
 The manifest purpose of the law in providing for a recount is that errors may be corrected. There 
 can be no recount untU there has been a perfected count, ^^'hether a recount shall be necessary can not 
 be determined tOl the first count is finished. No provision is made in the law as to the time when the 
 recount must be demanded. There is no statute of limitations on the subject. To hold that a recount 
 must be demanded on the day of the original count leads to the manifest absurdity of requiring the 
 candidate to be present, in person or by proxy, in as many different places as there are county courts 
 in his district at one and the same time. In the district in question there are twelve counties. If the 
 recount was lawful, as undoubtedly it was, so then was the certificate of its result, and the governor 
 exceeded his powers in accepting the first and ignoring the second certificate from Ritchie County. 
 
 In a similar way the governor rejected a second certificate from Calhoun, 
 thereby taking 2 votes from contestant. This second certificate was made, not in 
 response to a demand for a recount, but to correct an error. The certificate itself 
 shows : 
 
 At a regular session of the county court of Calhoun County, held at the court-house of said county 
 on Monday, the 7th day of January, 1889, on motion of A. J. Barr, it is ordered by this court that the 
 returns of the election held in this county on the 6th day of November, 1888, as certified by the county 
 court, held on the 12th day of November, 1888, be corrected, it appearing to the court that there is a 
 clerical error in the returns as certified, to wit: That the record of the result of said election for a Repre- 
 sentative in the Congress of the United States shows that Charles B. Smith received 630 votes, which 
 should have been C. B. Smith received 632 votes. 
 
 It is therefore ordered by this court that the record of this count be corrected so as to show that 
 C. B. Smith receivedl, etc. 
 
 The report says of the governor's rejection of the second certificate: 
 
 He assigned no reason for his action, but counsel for contestee now seek to justify it on the grounds 
 hereinbefore stated — that upon the making of the first certificate the county court was functus officio, 
 and had no power to correct an error, however plain and palpable, after the certificate had been issued. 
 
 It has been held that where the judges of election discover a mistake upon a recount of the ballots 
 their supplemental return is entitled to be received (Archer v. Allen, Thirty-fourth Congress); and that 
 errors, whether fraudulent or accidental, may be corrected at any time, even after certificate of election 
 issued by the governor. (Butler v. Lahman, Thirty-seventh Congress; Morton v. Daily, Thirty-seventh 
 Congress.) 
 
 It is believed that there is inherent in every body charged with the ascertainment of the popular 
 will, whether its functions be judicial or ministerial, the power to correct an error when discovered and 
 to make its conclusions express the true will of the people as disclosed by their suffrages. And it is 
 especially to be noted that there is no suggestion from any quarter that the certificates from Ritchie and 
 Calhoun counties, ignored by the governor, did not accurately show the exact number of votes legally 
 cast for the respective candidates, while on the contrary it expressly appears that they did so show. 
 
 582. The case of Smith v. Jackson, continued. 
 
 A person having been seated, on credentials regular in form but 
 improperly issued, the Elections Committee, in a sustained case, ascer- 
 tained prima facie right in favor of contestant.
 
 § 582 CREDENTIALS AND PBIMA FACIE TITLE. 759 
 
 The Elections Committee, in a sustained case, shifted the burden of 
 proof to sitting Member on ascertaining that contestant had been entitled 
 to the credentials. 
 
 The law requiring a return to " set forth in words at length " the 
 number of votes, the governor, in awarding certificate of prima facie 
 right, should construe an obscure word as a word in full, not an abbre- 
 viation. 
 
 In ascertaining prima facie title the governor should make intelligible 
 an obscure return from the records of a returning board when said board 
 has the functions of a court of record. 
 
 (b) The remaining question arising as to prima facie right is set forth in the 
 following statement made by the governor of West Virginia : 
 
 The commissioners of Pleasants County certify as to J. M. Jackson's vote as follows: "J. M. Jackson 
 received eight hundred and twe votes." The words and letters are too plain for any mistake. For the 
 reasons heretofore given there is no authority to go behind the returns. The vote certified must be 
 counted if enough appears to ascertain the meaning. In an action upon a note it was held: "There was 
 no error in admitting the note sued on in evidence, because the amount thereof is written four hund 
 and two and 50-100 dollars." (Glenn v. Porter, 72 Ind., p. 525.) 
 
 So it has been held that the abbreviation in a declaration, "Damages one thous dollars" is not 
 error. (1 W. L. J., Mich., 395.) 
 
 If enough appear to make the return intelligible, it should be made so. 
 
 This can not be done without striking out one letter and inserting another, or by supplying the 
 seemingly omitted letters. Acting upon the face of the paper the latter appears more in consonance 
 with adjudged cases. The least number would give to said Jackson 812 votes. It will be so entered. 
 
 As to this the report holds: 
 
 The governor knew — could not help knowing — even if a poor penman omitted to close his " o " so that 
 the word looked like t-w-e, instead of t-w-o, that the word intended was two. Upon gMieral principles 
 he was bound to presume that the three letters expressed the whole word, but he was especially bound 
 to so assume in this case, because the law, of which he pretended to be so tender, required that "the 
 certificate shall set forth, according to the truth, the full name of every person voted for, and in words at 
 length the number of votes he received for any office." 
 
 The law, therefore, told him that the word about which he pretended to doubt was not an abbrevi- 
 ation but a number written in words at length. He gratuitously assumed the violation of this law by 
 the county court making the certificate, as well as did violence to the commonest kind of common sense 
 when he tortured these three letters into the word "twelve." 
 
 He knew furthermore that "twe" is not now, never was, and probably never wLU be amongst sane 
 men an abbreviation of twelve, or of twenty, or of any number known to an American. And he knew 
 again that the letters were intended to express a number, and that there is no number known to the 
 English language written with three letters, the first of which is "t" and the second "w" except the 
 single number two. 
 
 But even Lf it were conceded that there could possibly have been a doubt as to what the word meant, 
 then it was a patent ambiguity, which any law student could have told the governor it was his duty to 
 explain by evidence. This he was bound to do, and could very readily have done, as will clearly appear 
 hereafter. Had it been impossible for him to do so, the only legal alternative remaining was to strike 
 out the word altogether as insensible, and read the return 800. 
 
 Neither process would have given the certificate to the contestee. The governor therefore guessed 
 enough to give to that gentleman 3 of a majority. 
 
 The true vote Ln Pleasants County for Jackson was 802, and not 812. Nobody now claims, nor did 
 anybody ever claim, that it was in fact anj'thing else. 
 
 Counsel for contestee, however, without attempting to defend a trick indefensible, ingeniously 
 argued before the committee that the governor had no legal standard by which to explain the so-called
 
 760 PEECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 582 
 
 doubtful word, and that no competent legal evidence has been produced by the contestant to show 
 that the true vote in Pleasants County was other than as counted by the governor. 
 
 The argument is that under the laws of West Virginia the commissioners of the county court do 
 not constitute in any proper sense a court of record, but are merely a returning board, having no judicial 
 functions, except when making a recount, and no authority to evidence their action except by the issue 
 of a single certificate, which is to be sent to and deposited with the governor. 
 
 Upon the faith of this proposition it is contended that the only legal record evidence of the vote 
 in Pleasants County, as ascertained by the county court, is the certificate sent to the governor, and that 
 the certificates procured by the contestant from the clerks of the county courts and offered in evidence, 
 showing the results of the elections in the several counties, are not competent evidence. 
 
 These certificates, it is contended, were made without authority of law and at the instance of a 
 court having no right to make a record. 
 
 The report next discusses the case of Brazie i'. the Gominissioners of Fayette 
 Gounty (25 W. Va., 213) and finds that it does not sustain the contention of counsel 
 for sitting Member. 
 
 Aside from general principles, the report finds from West Virginia statutes that 
 the county court is more than a mere returning board ; for it is intrusted with the 
 duty of fixing voting places; of naming election commissioners. Moreover, to it 
 are returned certificates from the district canvassers, the ballots cast, and one set 
 of poll books. Its clerk is by law the custodian of these records. It convenes in 
 special session to pass on election returns, has power to summon witnessess, admin- 
 ister oaths, and "make such orders as shall seem proper to procure correct returns, 
 and ascertain the true result" of the election. The fact that this court meets in 
 "special session" indicates to the committee that it is more than a mere returning 
 board. The report further finds: 
 
 Provision is expressly made by section 46, Acts 1881, chapter 5, for a complete record of all the 
 proceedings of the county court, both those which relate to its general jurisdiction, exercised at its 
 ordinary sessions, and those which relate to its exceptional jurisdiction, exercised at its special sessions. 
 
 But, in addition to the record thus provided for, there are other provisions of the law with which 
 the position assumed by contestee's counsel and now under discussion are inconsistent. 
 
 By section 22 it is prescribed that when an election is held in a county or district for any or all 
 of some twenty-two different officers— State, county, and Federal — "the commissioners of the county 
 court, or a majority of them, * * * shall carefully and impartially ascertain the result of the elec- 
 tion in their county, and in each district thereof, and make out and sign as many certificates thereof 
 as may be necessary. * * * The said commissioners shall sign separate certificates of the result 
 of the election within their county for each of the offices specified in this section which is to be filled;" 
 that is, separate certificates for each of the twenty different offices, State, county, and Federal. 
 
 Section 23, still preser\'ing the plural number and speaking of certificates, makes provision for the 
 disposition of these certificates. As to certain offices, one of the certificates is to go to the governor; 
 as to certain other offices, one is to go to the secretary of state; as to certain offices, one is to go to some 
 designated public officer; the other to the candidate elected. 
 
 In all cases, with respect to everj' office, it is the duty of the court to sign separate certificates. 
 As, of the separate certificates directed to be made in the case of a candidate for Congress, one only 
 is to go to the governor, and, as no provision is made for the giving of the other to the candidate or to 
 any public officer, it necessarily remains with the clerk of the court. 
 
 By section 5 of chapter 130 (code of West Virginia) — 
 
 "A copy of any record or paper in the clerk's office of any court, or in the office of the secretary 
 of state, treasurer, or auditor, or in the office of surveyor of lands of any county attested by the oflScer 
 in whose oflBce the same is, may be admitted as evidence in lieu of the original." 
 
 ♦ *****» 
 
 Your committee are therefore clearly of the opinion that, under the laws of West Virginia, it was 
 competent for the governor and it was his duty to make intelligible if unintelligible the certificate
 
 § 583 CREDENTIALS AND PRIMA FACIE TITLE. 761 
 
 as to the vote in Pleasant County, by consulting the certificate and record of that vete on file in the 
 clerk's office of that county, and that in defavdt of his having done so it is competent for them and 
 is their duty now to do it. 
 
 It is conceded that ever since the passage of the West Virginia act of 1882, which we have been 
 discussing, it has been the custom of the county court to keep on file a duplicate certificate showing 
 its conclusions with respect to the election of a Representative to Congress. 
 
 (2) In accordance ■svith their reasoning as to the prima facie case the majority 
 of the coDomittee say: 
 
 And they are of the opinion that, on the face of the returns, the contestant was elected by a majority 
 of 12, and was entitled to the governor's certificate of election. Such being the case, the contestant 
 is now to be treated as if he had received the certificate, and the onus is cast on the contestee to show that 
 the returns, if truly made, would elect him. (Wallace v. McKinley.) 
 
 The minority of the committee, in views presented by Mr. Charles F. Crisp, 
 of Georgia, defend the action of the governor of West Virginia, but do not dissent 
 from the propositions of law laid down in any branch of the case. 
 
 583. The case of Smith v. Jackson, continued. 
 
 When irregularity of a jurat works rejection of a poll unless canvass- 
 ing' officers are satisfied that the oath was taken, the counting of the poll 
 is conclusive offset to a faulty jurat. 
 
 A slight technical error in a jurat, omitting that which may be made 
 certain, should not cause rejection of a poll, even when the law makes 
 rejection the penalty of improper certification of the oath. 
 
 Failure of election officers to include in their returns votes for a cer- 
 tain office as required by law, when said votes have been counted and tal- 
 lied, does not justify rejection of the poll. 
 
 As to the final right to the seat, two classes of questions arose, first as to the 
 effect of certain alleged irregularities in the conduct of the election; and second as 
 to the qualifications of certain voters. 
 
 First, as to the alleged irregularities. 
 
 (a) Sitting Member asked that the poll of Ebenezer precinct be rejected because 
 it did not appear that the commissioners who conducted the election were sworn. 
 The report says: 
 
 The record shows that on the poll book returned to the county clerk's office the oath appeared at 
 length and in the form prescribed by law, subscribed by each and all the commissioners, but the jurat 
 is irregular and indefinite. It reads as follows: 
 
 "Subscribed and sworn to before me as one of the commissioners, L. F. Law, this day of 
 
 November, 1888. 
 
 "Peter Conley." 
 
 Both Law and Conley were commissioners, and either had the power to swear aU the rest. It is 
 very clear, even from the imperfect record, that all took the oath by subscribing to it, and that as to two 
 at least the certificate is conclusive. Where part of the officers are sworn, others not, the election is 
 valid. (Fuller v. Davison, 2 Bart., 126.) Two things are to be noted in this connection, first, that sworn 
 or unsworn, all the commissioners were de facto election officers, and, second, that no harm resulted 
 to anyone, either the public or an individual voter, from their failure to be regularly sworn. All author- 
 ities agree that the acts of de facto officers are to be accepted and treated as valid so far as the public 
 and the candidates are concerned. (Paine on Elections, sec. 373, and cases cited.) It is a well-settled 
 principle of law, and a very ancient one, "that the act of an officer de facto, where it is for his own benefit, 
 is void * * * but where it is for the benefit of strangers, or the public, who are presumed to be 
 ignorant of such defect of title, it is good." (Cro Eliz, 699.)
 
 762 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 583 
 
 It has been repeatedly held that a certificate of unsworn officers even is prima facie, and the burden 
 is on the contestant to show that the errors committed affected the result or rendered it uncertain. 
 (Taylor v. Taylor, 10 Min., 107; WTiipley v. McCune, 10 Cal., 352.) 
 
 It is contended however, that this principle does not apply in this case because the law of West 
 Virginia provides: 
 
 "The said oath shall appear properly certified on one of the poll books of every election, and in 
 no case shall the vote taken at any place of voting be counted unless said oath so appears, or unless it 
 be proved to the satisfaction of the commissioners of the county court, convened at the court-house, as 
 hereinafter required, that the oath was taken before said commissioners, canvassers, and clerks entered 
 upon the discharge of their duties." 
 
 But the contention must fail and the argument be against the contestee for the manifest reason 
 that unless the oath had been taken the votes at this precinct could not have been counted. The taking 
 of the oath was to be made to appear either upon the poll books or by proof to the satisfaction of the county 
 commissioners. These commissioners had power, "if deemed necessary, to require the attendance of 
 any of the commissioners or canvassers, or other officers or persons present at the election, to answer 
 questions under oath respecting the same, and to make such other orders as shall seem proper to procure 
 correct returns and ascertain the true result of the said election in their county." 
 
 The commissioners of the county court must be presumed to have done all things within their 
 power necessary to be done in the performance of their duty in accordance with law. They can not be 
 presumed to have done anything unlawful. The votes could not have been lawfully counted unless the 
 election officers appear to have been sworn, either by the evidence of the poll book or by other evidence 
 satisfactory to the commissioners. The votes were counted, and if it be true, that the swearing of the 
 officers is not proven by the poll book, it must have been otherwise proven to the satisfaction of the 
 commissioners. 
 
 No reason, therefore, has been shown why your committee should disfranchise the voters of this 
 district. 
 
 The majority also discuss two other precincts: 
 
 The objection made to the vote of the Murphys Mill precinct is of such a frivolous character as 
 to merit but little discussion. It is, that the oath of the precinct commissioner does not appear properly 
 certified on the poll book. It was not properly certified because Marion J. Bickle, a justice of the peace, 
 who administered it, signed the jurat "Marion J. Bickle, in and for Clay district. Wood County, W.Va.," 
 omitting the words "justice of the peace" after his name. 
 
 He was, in point of fact, a justice of the peace, as the evidence shows. The less comment made 
 on this objection the better, one would think, for the contestee. 
 
 The next objection is like unto the last, and relates to WadesvUle precinct, Wood County. The 
 objection here again relates to an alleged irregularity in the jurat. The oath was administered by 
 T. J. Sands, one of the commissioners of election, but he omitted to sign with his official title. 
 
 That the oath was administered by him, that he was a commissioner and by law authorized to 
 administer it, are facts not capable of being called in question. 
 
 The matter does not seem to merit discussion. 
 
 (6) The sitting Member asked for the rejection of Kentuck precinct on the 
 ground that no vote was rettimed on the poll books by the precinct commissioners 
 nor any certificate in the case of the candidates for Congress. The law of West 
 Virginia, after providing for the count at the close of the polls, has this require- 
 ment: 
 
 The contents of the ballots as they are read shall be entered by the clerks under the supervision 
 of the commissioners on tally papers for the purpose by suitable marks made opposite to or under the 
 name of each person for any office to be filled. 
 
 As soon as the results are ascertained, the commissioners or a majority of them * * » at each 
 place of voting shall make out and sign two certificates thereof [according to a prescribed form] and 
 transmit one to the clerk of the county court. They shall also seal up the ballots and send them with 
 one set of the poll books to the said clerk.
 
 § 584 CREDENTIALS AND PKIMA FACIE TITLE. 763 
 
 The report says: 
 
 A reference to the certificate wiU show that the certificates were made and signed by the com- 
 missioners holding the election, and returned to the clerks of the county and circuit court, as required 
 by law, but that the names of contestant and contestee did not appear in said certificate, nor the office 
 for which they were candidates and received votes. But their names were on the ballots cast at said 
 precinct for said office, and the ballots were counted by the commissioners of election, and their names 
 were written down by them on the tally sheets opposite or under the designation of the office for which 
 they received votes, and the number of votes which each received was designated on said tally sheets, 
 to wit, 152 for contestant and 72 for contestee, in the same manner as was done with respect to the names 
 of all other candidates voted for at said election, and the tally sheets were returned with the certificates 
 and the ballots to the clerk of the county court. The aggregate votes appearing thereby to have been 
 cast for contestant and contestee were one less than the highest number appearing to have been cast 
 for any other two opposing candidates. When these papers reached the commissioners of the county 
 court, counsel for contestee demanded a recount of the votes for Jackson County, as to Representative 
 in Congress, as he had the lawful right to do. Under this demand the commissioners of the county 
 court recounted all the ballots cast for Representative in Congress in that coimty, and upon that recount 
 the number of votes appearing to have been cast for the contestant and contestee were the same as 
 appeared upon said tally sheets, and including these votes, the result in the county was, for contestant, 
 2,272 votes, and for contestee, 1,886 votes. And this result was certified to the governor. 
 
 The only irregularity here seems to have been a clerical error, in the failure of the election com- 
 missioners to insert in the certificate the result of the election at that precinct as to Representative in 
 Congress. They did ascertain the result and wrote it correctly on the tally sheets, and when the county 
 commissioners counted the ballots at the demand of contestee's counsel, they obtained the same result, 
 and the ballots were there and inspected by the commissioners, and presumably by the contestee's 
 attorney, who made the demand for recount. 
 
 But this failure of the commissioners of election to make return of the votes at this precinct could 
 not have the effect to disfranchise the persons who voted there, and the law of West Virginia especially 
 provides for such a case. In declaring the powers and duties of the county commissioners in ascertain- 
 ing and declaring the result of the election in their respective counties, the following language is used: 
 
 "They may, if deemed necessary, require the attendance of any of the commissioners or canvassers 
 or other oSicers or persons present at the election, to answer questions under oath respecting the same, 
 and may make such other orders as shall seem proper to procure correct returns and ascertain the true 
 result of the said election in their county." 
 
 The presumption as well as the proof is that the county commissioners ascertained, by the exercise 
 of their powers of examination, the true result of the election, and certified accordingly. There is no 
 pretense that they did not. 
 
 Counsel for contestee say that he, the contestee, made no demand for a recount of the vote at this 
 precinct, and argue that the fact of such demand should appear of record. There is no law requiring 
 the demand to be made matter of record. There is no record of demand made in any precinct, though 
 contestee admits having made such demand in some. There is affirmative proof (Record, p. 724) that 
 demand was made for a recount in this precinct by contestee's attorney, and neither the attorney nor 
 the contestant was called to rebut this evidence. 
 
 The matter does not seem material nor to merit discussion, since there is no pretense that the 
 commissioners in the exercise of their legitimate functions did not ascertain the true vote in this 
 precinct; no pretense that it was not truly declared; no pretense that any voter suffered anything by 
 the alleged irregularity; in fact, nothing to take this case out of the ordinarj^ rule of law, that statutes 
 directing the mode of proceeding of public officers are directory merely, unless there is something in 
 the statute itself which plainly shows a different intent. 
 
 584. The case of Smith v. Jackson, continued. 
 
 No fraud being shown and no specific fraudulent act being alleged, 
 the House declined to reject a poll because unsworn persons assisted in 
 the count. 
 
 The holding of an election in a place other than the legal place does
 
 764 PKECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 584 
 
 not cause rejection of the poll when evidence shows that no voter was 
 deprived of his rights thereby. 
 
 A mere technical violation of the law as to custody of ballot box, no 
 injury being shown to anyone, does not justify rejection of the poll. 
 
 (c) Sitting Member alleged that the poll of Pine Log precinct should be ex- 
 cluded because of "misconduct and fraudulent acts" on the part of the election 
 ofHcers. It appeared from the testimony that in the night during the counting of 
 the vote one of the three commissioners went to sleep, while another sat smoking, 
 leaving the third commissioner to do the counting, assisted by the son of the sleeping 
 commissioner and a man named Davis. Both the son and Davis belonged to 
 sitting Member's party. It appeared by reference that Commissioner Rorden, who 
 did the counting, was a Republican, while the commissioner who smoked was 
 McKown, a Democrat. The report says: 
 
 The evidence does not show that the ballot box was in the custody of any one of the commissioners 
 so as to require it to be sealed. Even if it was out of the custody of Dernberger, from the fact that he 
 was asleep, it was not out of that of McKown, who was present in the room, and the counting proceeded 
 under his observation, and his place was filled in the operation of counting by a Democrat. There is 
 not the slightest evidence tending to show that there was any tampering with the ballot or returns, or 
 any fraud of any character. All that was done was in the presence of at least two of the commissioners 
 who were awake. 
 
 It appears from the evidence of Lemley (pp. 724-725) that the return from this precinct did not 
 show any votes for contestee, but 139 votes for contestant, a mere clerical error in failing to write into 
 the return contestee's vote, but, under the recount which was demanded by contestee the votes for him 
 at this precinct were counted by the commissioners of the county court, and the number of them, 93, 
 included in their return to the governor. 
 
 It is to be observed that no allegation of any specific act of fraud is alleged. Your committee are 
 asked to presume that fraud was committed because it might have been committed, and this in the 
 absence of any pretense that a single legal vote was excluded from, or a single illegal vote was included 
 in, the result announced. 
 
 Your committee do not know of any principle of law that would justify them in so finding. They 
 understand the law to be as declared in Mann v. Cassidy (1 Brewster, Penna., 60): "An allegation of 
 fraud committed by election officers is immaterial unless it be also stated that the result has been 
 affected." 
 
 (d) Sitting Member charged that in Boyer precinct the voting place was at 
 Isaac Branch's schoolhouse, one-half to three-quarters of a mile distant from 
 McGill's post-office, which the county court had established as the legal voting 
 place. 
 
 The report says. 
 
 The evidence tends to prove the above statement, but it is not claimed, nor does the evidence 
 tend to show, that any person was deceived or prevented from voting thereby. Two witnesses only are 
 examined by contestee in relation to this precinct, and one of them (Fowler, pp. 408-409) says that it was 
 his understanding from the time he knew of the election that it was to be held at the Isaacs Branch 
 schoolhouse, and that every voter in the precinct voted at said voting place at said election except 
 one, and he was too sick to go to the polls. The other witness (Dunlap, p. 410), corroborates Fowler 
 generally, and, in addition, says that the school election in 1887 was held at the same place. So that 
 contestee by his own witnesses proves that no voter was wronged out of his vote, and that he was not 
 injured by this change of voting places. 
 
 This case calls for the application of the rule which protects the voter against disfranchisement 
 from the default of a public officer when such default has resulted in no injury to anyone. (Farrington 
 V. Turner, 53 Mich., 27; People v. Simonson, 5 N. Y., 22; Steele v. Calhoun, 61 Miss., 556.)
 
 § 585 CREDENTIALS AND PRIMA FACIE TITLE. 765 
 
 The same principle was applied to several other precincts where like irregu- 
 larities occurred. 
 
 (e) The report thus states another objection: 
 
 In Walton precinct, Roane County, the contestee claims that the ballot box was in the custody of 
 one of the commissioners of election alone, in violation of law, and that the vote at this precinct, where 
 contestant had 131 plurality, should be rejected for this reason. 
 
 The section of the law relating to this subject is as follows (Code, ch. 3, sec. 14): 
 "The ballot box shall have an aperture in the lid or top thereof to receive the ballots of voters. 
 While the polls are open it shall be kept where it may be seen by the voters, and after the poUs are 
 closed, and until the votes are counted and the certificates of the result are signed, shall remain in the 
 immediate custody of the commissioner, or any one of them, with the consent of the others. But it shall 
 not be opened unless two of them at least be present, and if left at any time in the custody of one of the 
 number, shall be carefully sealed so that it can not be opened or any ballot taken therefrom or entered 
 therein without breaking the seal, and the others shall write their names across the place or places 
 where it is sealed." 
 
 It was in proof that at the dinner hour on election day the ballot box was 
 sealed, and was for about five minutes in the exclusive custody of one commissioner. 
 During the counting, while they were resting, a Republican commissioner, Garvin, 
 and a Republican clerk, Summers, were for a short time alone with the box, the 
 others having stepped out. The witness Walker said, according to the report: 
 
 Walker testifies for contestee that he saw nothing in the conduct of Garvin or Summers which led 
 him to suppose that there had been any tampering with the ballot box, and that there was nothing to 
 indicate that there had been; that he knew Garvin well, and did not believe he did or would tamper 
 with the ballot box, or permit it to be done; that the result of the election was about as usual at that 
 precinct, and nothing in it to indicate that there was any tampering, and that the number of ballots 
 tallied with the number of names on the poll books. There is a total absence of evidence tending to 
 show any fraud or improper practices on the part of anyone in conducting the election. 
 
 The evidence fails to show that the box was "left at any time in the custody of one of the number" 
 in contemplation of the law. While they were at dinner it was as much in the custody of the one who 
 did not have manual possession as it was in his who did. Besides, at that time it was sealed. On the 
 other occasion it was not left in Garvin's custody in contemplation of law or in fact. The others stepped 
 out only momentarily. The sealing was to be done only when the two turned it over to the third, 
 thereby expressly charging him with the custody. 
 
 Besides, if there was any violation of law it was only technical, and did not tend to the injury or 
 prejudice of the contestee, and can not deprive the voters of the right of having their votes counted 
 as cast. 
 
 585. The case of Smith v. Jackson, continued. 
 
 A clear preponderance of competent evidence is required to overthrow 
 the prima facie legality of a ballot received by the election officers. 
 
 Testimony quoting statements of the voter after election as to how he 
 voted or as to his qualifications is inadmissible to prove illegality of a 
 ballot, being hearsay. 
 
 In absence of direct proof of how he voted, evidence as to the voter's 
 party, his advocacy of candidates, or the friends who sustained his right 
 to vote is admissible. 
 
 One who has knowingly cast an illegal vote should not be relied on 
 to prove how he voted; but it is otherwise in case of honest mistake. 
 
 The minority of the committee did not dissent from the above conclusions of 
 law; but joined issue on the facts (not the law) involved in the examination of
 
 766 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 586 
 
 the second branch of the inquiry as to final right. The majority thus stated the 
 principles of law by which it would be governed in determining the qualifications 
 of voters : 
 
 (a) A vote accepted by the commissioners holding the election is prima facie legal. Before it 
 can be throwB out for illegality it must be satisfactorily shown by the evidence to have been cast by 
 one not legally qualified to vote — that is to say, the presumption of legality must be overcome by a 
 clear preponderance of competent evidence. 
 
 By competent evidence we mean such evidence as would be admitted on the trial of the issue 
 before a judicial tribunal, except where a relaxation of the rule is made necessary by the nature of 
 the issue. 
 
 (6) No provision is made by the statutes of West Virginia to ascertain what particular ballot any 
 voter has deposited after it has been once placed in the ballot box. Therefore in this case it becomes 
 necessary to ascertain for which candidate a vote was given by other means than the ticket itself. 
 
 It seems to have been taken for granted by both parties that the voters themselves could not be 
 compelled to disclose how they voted. It may be remarked in this connection that one who would 
 knowingly cast an illegal vote ought not to be regarded as the most reliable witness. On the other 
 hand, when he has been honestly mistaken, we can see no reason why such voter ought not to be trusted 
 as a witness. 
 
 In order, then, to prevent illegal voting with impunity, it becomes necessary to determine what 
 kind of testimony shall be received in ascertaining which candidate got the benefit of the illegal vote. 
 The committee have followed the rule which appears to them to be the most reasonable, as well as 
 the best sustained by authority. 
 
 In the absence of direct proof, evidence showing to what political party the voter belonged, whose 
 election he advocated, whose friends maintained his right to vote, and kindred testimony has been 
 held admissible. Of course what the voter said at the time of voting is admissible as a part of the 
 res gesta. 
 
 But what a voter said after the day of the election, either as to his qualifications, or how he voted, or 
 whether he voted, the committee hold to be inadmissible in the absence of other testimony on the 
 point. If such testimony can be admitted at all, which we do not concede, it certainly ought not to 
 be received when the statement of the voter is made after the legality of his vote has been called in 
 question. To admit this kind of testimony is to place it in the power of one not entitled to vote to 
 have his illegal vote counted twice against the party he desires to defeat, without subjecting himself 
 to cross-examination and without even the formality of testifying under oath. 
 
 Again, one legally qualified may, by statements after he has voted, make himself out to be dis- 
 qualified without incurring any penalty, and in that way have his legal vote given to one party counted 
 as illegal against another party. One who has not voted at all may in the same way be proved to have 
 voted. In a close contest, with party feeling running high — perhaps party control involved — the 
 admission of this kind of testimony would be doubly dangerous. It has nothing to commend it except 
 a class of decisions whose authority has been weakened, if not destroyed, by later and better considered 
 adjudications. The committee reject all such testimony as being mere hearsay of the most danger- 
 ous kind when standing alone. When the only evidence of how a man voted, or whether he was a legal 
 voter, is the Tinswom statement of the voter after the election, we have let the vote stand. 
 
 586. The case of Smith v. Jackson, continued. 
 
 A voter capable of making a valid v/^ill or contract or of being crimi- 
 nally responsible for his act, may not be disqualified as of unsound mind. 
 
 Nonprofessional evidence that a voter is an " idiot " may be given 
 weight as a statement of fact rather than of opinion. 
 
 Nonprofessional testimony as to a voter's " unsound mind " should be 
 accompanied by careful definition to be of weight. 
 
 A voter ordinarily self-supporting is not to be held as a pauper 
 because of receiving public aid temporarily.
 
 § 587 CREDENTIALS AND PRIMA FACIE TITLE. 767 
 
 (c) In regard to what constitutes a person of unsound mind, we have adopted the rules substan- 
 tially as laid down by American courts and text-book writers, and hold that a person having sufficient 
 intelligence to make a valid will, or to bind himself by ordinary contracts, or to be criminally respon- 
 sible for his acts, is a person of sound mind. One whose will would be held invalid for no other reason 
 than mental incapacity is a person of unsound mind. 
 
 In the record we find the oft-recurring question, "Was the voter, in your opinion, a man of unsound 
 mind? " put to a nonprofessional witness without any attempt to define what was meant by imsound- 
 ness of mind. To the answer to such question, unaccompanied by any explanation of what the witness 
 understood by the term, we attach very little weight. 
 
 The condition of the voter, his acts and speech, how he is regarded by those who know him, as to 
 his competency to contract, judicial determinations, and the like evidence has been given due weight. 
 The term "idiot" is so well understood that the statement of a witness that a person is an idiot is given 
 more weight, as being the statement of a fact within the knowledge of the witness and not a mere opinion. 
 
 (d) Upon the question of what constitutes a pauper there is some disagreement in the authorities, 
 but we think the following may be taken as a fair definition: A pauper is one who is continuously sup- 
 ported, in whole or in part, out of funds provided by the public authorities for that purpose. One who has 
 been a public charge and afterwards became self-supporting for a sufRcient time before the election to 
 show that his ability to support himself is not a mere temporarj' condition may legally vote. One who, 
 under temporary misfortune or sickness, receives public aid, but is ordinarily self-supporting, is not a 
 pauper. 
 
 587. The case of Smith v. Jackson, continued. 
 
 A new residence may not be established by intention without an actual 
 removal to the new place. 
 
 Residence may not be retained by a simple statement of intention 
 when actual residence has been taken up elsewhere. 
 
 Votes of persons otherwise qualified and cast in good faith, in accord- 
 ance with previous habit, should not be rejected because of disputed 
 boundary of precinct. 
 
 (e) The law which determines the question of residence is so well settled that 
 it does not need a restatement by the committee; the difficulty is in the application 
 of the law to the evidence. 
 
 Absence from the place claimed as a residence, for temporary purposes, does not work abandon- 
 ment; but in this case some of the witnesses and some of the commissioners of election seem to have had 
 the view that a voting residence might be retained by the simple statement of intention to retain a cer- 
 tain place as a voting residence, although an actual residence had been taken up elsewhere, with no 
 fixed intention of ever again actually living at the place where the right to vote is claimed. Others 
 seem to think that they can establish a new residence by intention before actually and in fact moving 
 to the new place. 
 
 We do not concur in these views. It takes both act and intention to establish a residence, and an 
 intention to retain a residence which has been left must be an intention actually to return to it and 
 reside in it. 
 
 (/) Some votes in this record are questioned on account of disputed or doubtful boundarj' lines. 
 The committee have not thought it their duty to go into an investigation of disputed boundaries, but 
 have counted all votes as legal when the voters were otherwise qualified and voted in good faith in the 
 district where they believed that they had their residence, and where they had been in the habit of 
 voting. 
 
 588. The case of Smith v. Jackson, continued. 
 
 The fact that laborers are employed in a moving gang by a corpora- 
 tion does not destroy the presumption that they are entitled to vote at the 
 place of headquarters.
 
 768 
 
 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 § 588 
 
 A vote challenged in notice of contest by either party is a proper sub- 
 ject of investigation. 
 
 When both sides have without objection investigated an alleged 
 illegal vote, failure to specify it in notice of contest may not be urged. 
 
 Admission by contestant that his evidence is of doubtful sufficiency 
 is held to amount to waiver of the allegation. 
 
 (g) In the examination of the qualifications of individual voters the majority 
 found 
 
 Fourteen other votes, laborers on a railroad, are attacked on the ground that they had not lived 
 in West Virginia for a year, were not residents of the district where they voted, and were employees of 
 a corporation. 
 
 As to some of them it clearly appears that they had lived in the State a sufficient time to entitle 
 them to vote. As to none of them is it shown by competent testimony that they had not been so resi- 
 dent, and the presumption is in their favor. 
 
 They belonged to a construction gang which had its headquarters where they voted; to this point 
 they constantly returned; received their mail there; had their washing done there, and had a right to 
 fix their residence there. Their employment by a corporation did not give them a residence, but it 
 did not prevent them from acquiring one. Some had voted there a year before. We think the pre- 
 sumption of legality is in no way overcome by the evidence. 
 
 The report also disposes of two questions of practice: 
 
 (a) Two or three of these votes contestee insists should not be charged against him, because not 
 named in contestant's notice of contest. 
 
 One of them, Michael Hobart, was challenged by contestee in his reply. The vote was illegal 
 and cast for contestee. The committee think that a vote challenged in the notice by either party is 
 a proper subject of investigation. 
 
 Two others were not named in either notice. The pleadings in this case are more specific than 
 the practice before the committee requires. As a general rule, parties ought to be bound by their plead- 
 ings, but where neither party has been taken by surprise, and both have entered into the investigation, 
 the rule should be relaxed in the interest of justice. 
 
 The evidence in regard to these voters was taken a month before contestee commenced examining 
 his witnesses, the witnesses impeaching the votes were cross-examined on this branch of their testimony, 
 and the contestee should be held to have waived his objections. 
 
 (b) In a final summary of his claims contestant has conceded that he has failed to establish his 
 charges with reference to a number of named voters, and that the evidence in regard to others places 
 them in the doubtful list. As to all such we have not felt it our duty to examine the evidence, as we 
 take the admission to amount to a waiver, although as to some of them it may be said it takes all the 
 benefit of presumptions to hold them valid. 
 
 As a result of their investigations of the alleged illegal votes, the majority 
 reports finds an actual plurality of 39 for contestant, and recommends the following : 
 
 Resolved, That James M. Jackson was not elected as a Representative to the Fifty-first Congress 
 from the Fourth Congressional district of West Virginia, and is not entitled to the seat. 
 
 Resolved, That Charles B. Smith was duly elected as a Representative from the Fourth Congres- 
 sional district of West Virginia to the Fifty-first Congress, and is entitled to his seat as such. 
 
 The minority, after an examination of the alleged illegal votes, concluded that 
 there was a majority of 23 for sitting Member, and recommended the following: 
 
 Resolved, That C. B. Smith was not elected a Representative in Congress from the Fourth district 
 of West Virginia, and is not entitled to a seat therein. 
 
 Resolved, That James M. Jackson was duly elected a Representative in Congress from the Fourth 
 district of West Virginia, and is entitled to retain his seat therein.
 
 § 588 CREDENTIALS AND PRIMA FACIE TITLE. 769 
 
 The report was debated at length on January 31 and Februarj- 1 and 3, 1890/ 
 anti on the latter day the question was first taken on substituting the first resolu- 
 tion of the minorit}- for the first resolution of the majority, and it was decided in 
 the negative — yeas, 135, nays 165. The question next recurred on substituting 
 the second resolution of the minority for the second resolution of the majority, 
 and was decided in the negative — yeas 137, nays 164. 
 
 The question recurring on the adoption of the resolutions reported by the majority, 
 the first resolution was agreed to — yeas 166, nays 0; and the second by yeas 166, 
 nays 0.- 
 
 ilr. Smith tlien appeared and took the oath. 
 
 'Record, pp. 1001. 1010, 1025-1043: Journal, pp. 187-190. 
 
 - The rulings of Mr. Speaker Reed as to the counting of a quorum was made in connection with 
 the consideration of this case. 
 
 5994— VOL 1—07 49
 
 Chapter XIX* 
 
 IRREGULAR CREDENTIALS. 
 
 1. House exercises discretion in case of informality. Sections 589-598.' 
 
 2. Impeached by evidence in their own terms. Sections 599-611.- 
 
 589. The House has declined to admit on prima facie shovTing per- 
 sons whose elections and credentials appeared defective. 
 
 The House has declined to permit the oath to be taken by persons 
 whose credentials had procured their enrollment by the Clerk. 
 
 On December 7, 1863,^ at the organization of the House, during the administra- 
 tion of the oath to the Members, the names of A. P. Field, Thomas Cottman, and 
 Joshua Baker, of Louisiana, were called. 
 
 Mr. Thaddeus Stevens, of Pennsylvania, objected to the swearing in of these 
 Jtlembers, on the ground that their certificates and election were both defective.* 
 
 In the course of the debate Mr. Stevens said that where it was believed from the 
 face of the documents read that they were in truth no credentials, as in this instance, 
 where the papers were signed by a man whom nobody in the United States ever 
 heard of as governor, and vAih his private seal attached, and where, as he was 
 assured, no pretense of an election had ever been held, it had not been customary 
 to swear in members until it had been determined that they were entitled to seats. 
 A large amount of mileage and salaiy was involved. 
 
 After debate the motion of Mr. Stevens that the credentials be referred to the 
 Committee on Elections, and that the administering of the oath be postponed until 
 after that committee should have reported, was put to the House, and decided in 
 the affirmative — yeas, 100; nays, 71. 
 
 590. An instance wherein the House gave prima facie effect to papers 
 not in form of credentials, and which raised a technical question as to the 
 election. — On December 6, 1875,^ after the organization of the House by the elec- 
 tion of a Speaker, a duly authenticated certificate of the State board of canvassers 
 
 * See Volume VI, Chapter CLXI. 
 
 ' House sometimes enrolls where the Clerk may not. Section 328 of this volume. 
 Oath sometimes administered before the arrival of credentials. Sections 162-168 of this voltmie. 
 See also case of Gunter v. Wilshire (sec. 37 of this volume) and Grafton v. Connor (sec. 465); also 
 the Senate cases of Revels (sec. 430) and Ames (sec. 438). 
 
 ^ See also case of the West Virginia Members (sec. 522 of this volume) and the Colorado case (sec. 523). 
 ^ First session Thirty-eighth Congress, Journal, pp. 11, 12; Globe, pp. 7, 8. 
 
 ■* Both Field and Cottman were on the Clerk's roll and responded to the call, and voted for Speaker. 
 See also the case of Roberts in the Fifty-sixth Congress, sections 474-480 of this volume. 
 ' First session Forty-fourth Congress, Journal, p. 13; Record, pp. 172, 173. 
 770
 
 I 591 IRKEGULAR CKEDENTIALS. 771 
 
 of New York was presented showing the election of Nelson I. Norton from the Thirty- 
 tliird district. This certificate showed that a portion of the votes had been cast for 
 him as "Representative in Con^jress," and a portion for him as "Member of Con- 
 gress." The votes cast for him under both designations exceeded the votes for his 
 opponent. 
 
 Mr. Samuel S. Cox, of New York, stated that the law of New York required 
 votes to be cast for "Representative in Congress," and therefore he proposed the 
 reference of the credentials to the Committee on Elections. 
 
 But there being no opposition, Mr. Norton was permitted to take the oath, after 
 which the credentials were referred. 
 
 591. A memorial alleging that credentials were not in accordance with 
 law did not prevent the House from honoring them immediately. — On 
 December 6, 1S75,' at the organization of the House, during the swearing in of the 
 Members elect, Mr. John Goode, jr., was challenged by Mr. James A. Garfield, of 
 Ohio, and stepped aside until after the organization had been perfected bj- the 
 election of a Speaker. 
 
 Then Mr. Garfield presented a memorial from one J. H. Piatt, jr., setting 
 forth particulars in which he alleged that the certificate of Mr. Goode was without 
 authority of law. 
 
 It was urged on the other hand that the certificate was exactly in the form of 
 the certificates on which the other Virginia Members had been seated, and was in 
 accordance with the law of Virginia. 
 
 The House, mthout division, voted that the oath be administered to Mr. Goode. 
 
 592. The House has given full prima facie effect to credentials signed 
 by a military officer in accordance with the law of reconstruction. 
 
 The action of the Clerk in enrolling a Member-elect does not prevent 
 the House from questioning the prima facie force of the credentials. 
 
 On March 4, 1871,^ while the Speaker was administering the oath to the Members- 
 elect at the organization of the House, Mr. Michael C. Kerr, of Indiana, objected to 
 the swearing in of the Mississippi delegation, on the ground that their credentials did 
 not constitute in a just and legal sense prima facie evidence of title to seats on the 
 floor. One of the credentials was read as follows : 
 
 Headquarters Fourth Military District, 
 
 Department op Mississippi, 
 
 Jackson, Miss., January 1-f, 1S70. 
 I hereby certify that at an election held in the State of Mississippi on the 30th day of November and 
 1st of December, 1869, for the ratification of the constitution of said State, and for the election of Members 
 of Congress, the said constitution was ratified; that article 12, section 25, of said constitution is as follows: 
 "Representatives in Congress to fill the existing vacancies shall be elected at the same time the 
 constitution is submitted to the electors of the Sta,te for ratification and for the full term next succeeding 
 their election, and thereafter elections for Representatives in Congress shall be held biennially. The 
 first election shall be held on the first Tuesday after the first Monday in November preceding the expira- 
 tion of said full term." 
 
 ' First session Forty-fourth Congress, Journal, p. 13; Record, p. 172. 
 
 ^ First session Forty-eecond Congress, Journal, pp. 9, 10; Globe, pp. 9, 10.
 
 772 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 593 
 
 And that at said election, under section 25, articlo 12, of tlie constitution, Legrand W. Perce was 
 elected a Member of the Forty-second Congress of the United States of America, from the Fifth Con- 
 gressional district of Mississippi. 
 
 [l. s.] Adelbert Ames, 
 
 Brevet Major-General U. S. A., Commanding . 
 
 Attest: Eames Lynch, 
 
 Provisional Secretary of State. 
 
 On these credentials the Clerk of the House had put the names of the Mississippi 
 Members on the roll, and they had participated in the election of Speaker. 
 
 It was argued by Mr. John A. Bingham, of Ohio, that, in the absence of any 
 challenge as to the qualifications of the Mississippi Members, they should be admitted 
 to seats, as having the prima facie evidence that they represented the people of Missis- 
 sippi. Therefore Mr. Bingham moved that the credentials of the Members-elect 
 from ilississippi be referred to the Committee of Elections, and that they now be 
 sworn in. 
 
 This motion being divided, the first portion was put and agreed to, and then on 
 the second portion, "that they now be sworn in," there were yeas 121, nays 81. 
 Accordingly the oath was administered.' 
 
 593. Credentials being defective, but no doubt existing as to the elec- 
 tion, the oath was administered to the Member-elect by unanimous con- 
 sent. — On December 5, 1904,- the following credentials were laid before the House: 
 
 The State op South Carolina, 
 
 By the Secretary of State, 
 To the honorable the House of Representatives of the United States of America in the Congress: 
 
 Whereas in pursuance of the constitution and laws of the State of South Carolina, and the Constitu- 
 tion and laws of the United States of America, an election was duly holden on the 17th day of May, in the 
 year of our Lord 1904, in the said State of South Carolina, in the Second Congressional district thereof, for 
 Representative of the said State of South Carolina, from the said Second Congressional district thereof, in 
 the House of Representatives of the United States of America, in the Congress; and 
 
 Whereas upon the examination of the returns of the said election, and by the determination and 
 declaration of the board of State canvassers of the said State, filed and of record in my office, it appears 
 that T. G. Croft was duly elected at the said election by the highest number of votes Representative of 
 the State of South Carolina from the said Second Congressional district thereof, in the House of Repre- 
 tentatives of the United States of America, in the Congress: 
 
 Now, therefore, I, the secretary of state of the said State of South Carolina, by virtue of the power 
 in me vested by the acts of the general assembly of the said State in such case made and provided, do 
 hereby certify that the said T. G. Croft, at the election aforesaid, was duly elected Representative of the 
 State of South Carolina from the Second Congressional district thereof, in the House of Representatives 
 of the United States of America in the Congress. 
 
 Given under my hand and the great seal of the State of South Carolina, in Columbia, this 28th day 
 of May, in the year of our Lord 1904, and in the 128th year of the Independence of the United States 
 of America. 
 
 [seal.] .1. T. Gantt, 
 
 Secretary of State of South Carolina. 
 
 The Speaker said — 
 
 The Chair desires to call the attention of the gentleman from South Carolina [Mr. Johnson], and also 
 the attention of the House, to the credentials which have just been reported at the Clerk's desk. It seems 
 
 ' The election of which General Ames gave the certificates, was held in pursuance of reconstruction 
 legislation of Congress, providing for such action on the part of the military authorities. 
 ^ Third session Fifty-eighth Congress, Record, pp. 3, 4.
 
 I 594 IRREGULAR CREDENTIALS. 773 
 
 to the Chair that, taking them altogether, the presumption is that Mr. Croft was elected a Member of the 
 present Congress. But after all in making out the credentials the secretary of state has not filled the 
 blanks which specify the number of the Congress to which Mr. Croft was elected. 
 
 Then, on motion of Mr. Sereno E. Payne, of New York, and by iinammous 
 consent, the oath was administered to Mr. Croft. 
 
 594. A Senator-elect whose credentials were not in regular form 
 was seated, the irregular portions being considered as surplusage. — On 
 
 June 14, 1906,^ in the Senate, Mr. Chester I. Long, of Kansas, presented the following 
 credentials: 
 
 Hon. Ch.\rles Warren Fairbank.s, 
 
 Vice-President of the United States and ex officio President 
 
 of the Senate of the United States, Washington, D, C: 
 
 Know ye that I, E. W. Hoch, governor of the State of Kansas, reposing special trust and confidence 
 in the integrity, patriotism, and abilities of Alfred Washburn Benson, on behalf and in the name of 
 the State, do hereby appoint and commission him a Senator in the Congress of the United States, 
 from the State of Kansas, to fill vacancy caused by the resignation of Hon. Joseph R. Burton until the 
 next meeting of the legislature of this State, and until a successor has been elected and qualified, and 
 empower him to discharge the duties of said office according to law. 
 
 In testimony whereof I have hereunto subscribed my name and caused to be affixed the great seal 
 of the State. 
 
 Done at Topeka, Kans., this 11th day nf June, A. D. 1906. 
 
 E. W. Hoch, Governor. 
 
 By the governor: 
 
 [seal.] J. R. Burrow, Secretary of State. 
 
 Mr. Julius C. Burrows, of iiichigan, chairman of the Committee on Privileges 
 and Elections, said: 
 
 Mr. President, it will be observed that the certificate is not in proper form. I call attention to the 
 fact that by it the governor appoints not only to the vacancy until the next meeting of the legislature, but 
 until the legislature shall elect. Under that certificate, if valid, and the legislature should fail to elect, 
 Mr. Benson might hold for life. But the certificate, nevertheless, I think, is sufficient, as that portion of 
 it which assumes to supply the vacancy " until the legislature shall elect " can be regarded as surplusage. 
 
 Mr. Benson then appeared and took the oath. 
 
 595. A Senator-elect was permitted to take the oath, although his 
 credentials were irregular in minor particiilars. — On December l'1, 1905/ in 
 the Senate, John M. Gearin appeared with credentials as follows: 
 
 State of Oregon, Executive Department. 
 
 Salem, December 1.3, 1905. 
 
 The Governor of Oregon to John M. Gearin, of the City of Portland, State of Oregon: 
 
 \\Tiereas on the 8th day of December, 1905, the seat of the Hon. John H. Mitchell, one of the 
 
 Senators of the United States from the State of Oregon, became vacant by reason of his death; and 
 
 WTiereas there has been no session of the legislature of this State at which such vacancy could be 
 
 filled by the election of a Senator to succeed the said John H. Mitchell; and 
 
 Whereas it is of vital importance to the interests of the State and nation that such vacancy be filled: 
 Now, therefore, be it known that, reposing special trust and confidence in the capacity, integrity, 
 
 and fidelity of John M. Gearin, a citizen of the State of Oregon, I, George E. Chamberlain, governor of 
 
 the State of Oregon, do in the name and by the authority of said State, by these presents appoint 
 
 ' First session Fifty-ninth Congress, Record, p. 845.3. 
 -First session Fifty-ninth Congress, Record, pp. 667, 668.
 
 774 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 596 
 
 and commission him, the said John M. Gearin, to be a United States Senator to fill the place made 
 vacant by the death of the said John H. Mitchell and to occupy the same until a successor shall be 
 duly elected. 
 
 In testimony whereof I have hereunto set my hand and caused the seal of the Stale to be affixed, at 
 the city of Salem, on this 13th day of December, 1905. 
 
 Geo. E. Chamberlain, Governor. 
 
 By the governor: 
 
 [seal.] F. I. Dunbar, Secretary of State. 
 
 The credentials having been read, Mr. JuUus C. Burrows, of Michigan, said: 
 
 I would suggest to the Senator that the certificate, as I understood from its reading at the desk, is 
 defective, in that it provides that Mr. Gearin is appointed until his successor is elected. The governor 
 has no power to make such an appointment. * * * I think under the circumstances I should 
 object to the oath of office being administered because of the defect in the certificate. A certificate 
 appointing a person a Senator until his successor is elected seems to me to be defective. 
 
 Mr. John C. Spooner, of Wisconsin, said: 
 
 I am very clearly of the opinion, in concurrence with the Senator from Michigan, that the last 
 clause of this commission, "and to occupy thesame until a successor shall be duly elected," is in excess 
 of constitutional authority. It is, however, mere surplusage, for the Constitution provides how long a 
 Senator appointed by the governor to fill a vacancy may hold the appointment. If the appointment in 
 itself to fill a vacancy is complete and in accordance with the constitutional provision, whatever is added 
 going to the duration of the term is utterly unnecessary, and if in violation of it is a mere matter of 
 surplusage, not going to the validity, it seems to me, of the appointment. 
 
 We have had, I think, a similar case within my recollection. There was a vacancy — that is not dis- 
 puted — occasioned by the death of Senator Mitchell, which is sought in this amendment to be filled. It 
 is recited that the vacancy happened in a vacation while the legislature was not in session, and the gov- 
 ernor says: 
 
 " Now, therefore, be it known that, reposing special trust and confidence in the capacity, integrity, 
 and fidelity of John M. Gearin, a citizen of the State of Oregon, I, George E. Chamberlain, governor 
 of the State of Oregon, do, in the name and by the authority of said State, by these presents appoint 
 and commission him, the said John M. Gearin, to be a United States Senator to fill the place made 
 vacant by the death of the said John H. Mitchell." 
 
 If the last clause, following that I have just read, were omitted, that, I submit to the Senator from 
 Michigan, is a complete and valid evidence of the appointment of Mr. Gearin by the governor of 
 Oregon, and I think that the Senate ought to disregard entirely the unnecessary and now altogether 
 impotent words which occur at the end of the commission. I make that suggestion to my friend from 
 Michigan. 
 
 Mr. Burrows replied: 
 
 Mr. President, I only desired to call the attention of the Senate to the defect in the certificate. 
 Of course that portion of the certificate which declares that Mr. Gearin is appointed to fill the vacancy 
 until his successor is elected may be regarded as surplusage, if the certificate in other particulars clearly 
 shows that the executive of the State had the power to make the appointment. 
 
 The certificate is defective in another particular. The governor says that he appoints the person 
 named to "fill the vacancy." He has no power to do that. The Constitution provides that the execu- 
 tive of the State, in such a case as the present, "may make a temporary appointment until the next 
 meeting of the legislature, which shall then fill the vacancy." But I do not care to be hypercritical 
 about it at all. I simply call the attention of the Senate to the defects in the certificate. 
 
 There being no further objection, Mr. Gearin was permitted to take the oath. 
 
 596. The credentials of a Member-elect indicating that he had been 
 elected before the resignation of his predecessor took effect, objection was 
 made and the oath was not administered until new credentials were pro-
 
 § 596 IRREGULAK CREDENTIALS. 775 
 
 duced. — On December 3. 1900,^ the first daj' of the session, the following creden- 
 tials were presented to the House: 
 
 The State of Iowa, ss: 
 
 To Hon. Alexander McDowell, 
 
 Clerk of the House of Representatives: 
 This is to certify that at an election holden on Tuesday, November 6, A. D. 1900, the following- 
 named persons were duly elected Representatives in Congress, to represent the Congressional districts 
 of said State herein set forth, to fill vacancies, to wit: 
 
 Walter I. Smith, of Council Bluffs, in the county of Pottawattamie, to succeed Smith McPherson, 
 resigned on the 6th day of June, A. D. 1900. 
 
 James P. Conner, of Denison, in the county of Crawford, to succeed Jonathan P. Dolliver, resigned, 
 to take effect on the first Monday of December. A. D. 1900. 
 
 In testimony whereof I have hereunto set my hand and caused to be affixed the great seal of the 
 Sute of Iowa, this 28th day of November, A. D. 1900. 
 
 Leslie M. Shaw. 
 By the governor: 
 
 G. L. DoBSON, Secretary of State. 
 
 Mr. Joseph W. Bailey, of Texas, raised the question that so much of the credential 
 as related to Mr. Conner's election showed that the election was held before the 
 vacancy actually existed. 
 
 The Speaker ^ said : 
 
 This objection being made, Mr. Conner will step aside until the other gentlemen whose credentials 
 have been read are sworn 
 
 On the succeeding day ' Mr. William P. Hepburn, of Iowa, having called the case 
 up, Mr. Bailey said that he would not object to the swearing in of Mr. Conner if new 
 and proper credentials could be substituted for those presented the preceding day. 
 
 Thereupon the following was presented 
 
 United States of America, 
 St.^te of Iowa, Executive Department. 
 To Hon. James P. Conner, greeting: 
 
 It ip hereby certified that at an election holden on the 6th day of November, 1900, you were elected 
 to the office of Representative in Congress from the Teni,h Congressional district of said State for the 
 residue of the term ending the 3d day of March, 1901. 
 
 Given at the seat of government this 27th day of November, A. D. 1900. 
 
 [seal.] Leslie M. Shaw. 
 
 By the governor: 
 
 G. L. DoBSON, Secretary of State. 
 
 Mr. Bailey called attention to the fact that the credential was addressed to Mr. 
 Conner instead of to an official of the House, but stated that he would not object to 
 this informality. The existence of the vacancy was the vital point. 
 
 Mr. Hepburn having stated that Mr. Dolliver, as soon as he had given his written 
 resignation, had accepted another office, that of Senator, incompatible with that of 
 Representative, Mr. Bailey declared this satisfactory evidence that a vacancy existed 
 
 ' Second session Fifty-sixth Congress; Journal, p. 5; Record, p. 1-5. 
 -David B. Henderson, of Iowa, Speaker. 
 'Journal, p. 20; Record, p. 46.
 
 776 
 
 PRECEDENTS OF THE HOUSE OF KEPEESENTATIVES. 
 
 §597 
 
 for which the governor of Iowa could issue a writ of election, and with this as part of 
 the record had no further objection. 
 
 Mr. Conner was thereupon sworn. 
 
 597. The New York election case of Williamson v. Sickles in the 
 Thirty-sixth Congress. 
 
 In 1859 the Clerk enrolled a Member-elect who had no regular cer- 
 tificate, but who presented an official statement from the State authorities 
 showing his election. 
 
 A question as to what constitutes a " determination of the result " of 
 an election under the terms of the law of 1851 relating to notice of con- 
 test. 
 
 The law of 1851 regulating the conduct of contests in election cases 
 is not of absolute binding force on the House, but rather a wholesome rule 
 not to be departed from except for cause. 
 
 ^Mien the House of Representatives met to organize on December 5, 1859, 
 the name of Mr. Daniel E. Sickles, of New York, was among the names of the 
 Members-elect on the Clerk's roll. 
 
 Mr. Sickles did not, however, have a regular certificate of election. The 
 county canvassers had returned the votes in Mr. Sickles's district, as well as in two 
 other districts as cast for "Member of Congress." It appeared that the ballots 
 actually cast were for "Representatives in Congress." The board of State can- 
 vassers issued a statement ' of the votes returned, which showed the election of Mr. 
 Sickles, and declared: 
 
 And we further certify that inasmuch as said office was not legally designated in the returns of the 
 county canvassers of the said county of New York made to this board, we can not certify to the election 
 of any person to the office of Representative in Congress in the said respective districts. 
 
 Mr. Sickles presented, in lieu of regular credentials, a certified copy of this 
 statement. 
 
 Mr. Sickles's prima facie right to the seat was not challenged, either on Decem- 
 ber 5, 1859,- when the House assembled, or on Februarv^ 1, 1860,^ when the oath 
 was administered to the Members-elect by the Speaker. 
 
 Mr. Sickles's final right to the seat was contested. The merits of this contest 
 do not appear, since on Januarj^ 31, 1861,* the Committee on Elections simply 
 reported that the contestant had not shown sufficient grounds for disturbing the 
 sitting Member. 
 
 But an important preliminarj' question arose, on which careful reports and a 
 well-considered opinion of the House resulted. 
 
 The law of 1851° provided that the contestant should, "within thirty days 
 after the result of such election shall have been determined by the officer or board 
 of canvassers authorized by law to determine the same, give notice in writing" of 
 
 ' First session Thirty-sixth Congress, House Report No. 80, page 2.3. 
 
 -Journal, p. 4. 
 
 ^Journal, p. 10.5. 
 
 ■•Second session Thirty-sixth Congress, Journal, p. 250; House Report No. 61. 
 
 *9 Stat. L., p. 508.
 
 § 597 IRREGULAR CREDENTIALS. 777 
 
 his intention to contest. The contestant, Mr. Amor J. WiUiamson, did not proceed 
 under this law, the explanation of his course being included in the following from 
 the report of the committee: 
 
 ^Vllile the votes were before the State canvassers, and before their action became known, Mr. 
 Williamson made preparations to contest the seat in the mode pointed out in the statute of 1851. He 
 employed counsel for that purpose, and prepared, in part, the notice of contest required by that statute. 
 But when those canvassers published their action he was advised by his counsel that there had been no 
 such "determination of the result of said election" as is contemplated in said act, and that until such 
 determination was made he could not under said law serve notice upon Mr. Sickles more than Mr. 
 Sickles upon him, for both were equally without evidence of his right to the seat from the constituted 
 authorities of New York, and that he could not, by the authority of said act, obtain compulsory process 
 for the attendance of witnesses, or compel them to attend and testify under the pains and penalties of 
 perjurj'. He therefore abandoned further proceedings under said act, and appealed to the House at 
 the earliest practicable moment after the organization for a commission to take testimony, believing 
 this to be his only mode of obtaining any evidence beyond voluntary testimony. The answer of Mr. 
 Sickles to the petition and to this application to take testimony, and also his brief in its support, are 
 appended to this report, as is the brief of the petitioner in reply thereto. 
 
 The committee do not consider the law of 1851 as of absolute, binding force upon this House, for 
 by the Constitution "each House shall be the judge of the elections, returns, and qualifications of its 
 own members," and no previous House and Senate can judge for them. The committee, however, con- 
 sider that act as a wholesome rule, not to be departed from except for cause. But the conclusion to 
 which they have arrived upon this application renders it unnecessary for them to settle the question 
 whether the action of the State canvassers was such a "determination of the result of said election" as 
 is contemplated in that statute, .«o as to bring the case within its provisions. There obviously can arise 
 cases not within the provisions of that act in which the parties must apply to the House itself for author- 
 ity to take any other than voluntary testimony. 
 
 The majority of the committee therefore reported the following resolution: 
 
 Resolved, That A. J. Williamson, contesting the right of Hon. D. E. Sickles to a seat in this House 
 as a Representative from the Third district of the State of New York, be, and he is hereby, required 
 to serve upon the said Sickles, within ten days after the passage of this resolution, a particular statement 
 of the grounds of said contest, and that the said Sickles be, and he is hereby, required to serv-e upon 
 the said Williamson his answer thereto in twenty days thereafter; and that both parties be allowed sixty 
 days next after the service of said answer to take testimony in support of their several allegations and 
 denials before some justice of the supreme court of the State of New York, residing in the city of New 
 York, but in all other respects in the manner prescribed in the act of February 19, 1851. 
 
 The minority of the committee contended that the contestant might have pro- 
 ceeded under the law of 1851, or the usages of parliamentary assemblies, and that 
 the coxu-se now proposed was "illegal and unprecedented." Therefore they opposed 
 the proposed action on four grounds: 
 
 First. That the committee is bound, by the action of the House upon the subject- 
 matter, to presume that the sitting Member had a prima facie title to a seat. 
 
 Second. That Mr. Williamson, making no objection by way of protest or other- 
 wise to the occupancy of the seat by Mr. Sickles, or to his bemg sworn in, is estopped 
 from maintaining as a reason for not giving notice of contest and proceeding witli 
 the case in obedience to the law of 1851, that the sitting Member had "no prima 
 facie right or title to a seat,"' and therefore was not entitled to notice. 
 
 Third. That having entirely failed to comply with the law of Congress prescrib- 
 ing the necessary steps to be taken by contestants, the petitioner is, by his own 
 default, without remedv.
 
 778 PRECEDENTS OF THE HOUSE OF EEPBESENTATIVES. § 598 
 
 Fourth. That it is not competent for the conxmittee to recommend any action 
 to the House which involves a violation of the law of 1851, because as a law of Con- 
 gress it is obligatory alike upon the House, the committee, and the contestant; that 
 the act relating exclusively to the initiation of the proceedings, the taking of testi- 
 mony, and the preparation of the case for the decision of the House, does not infringe 
 upon the constitutional prerogative of the House to judge of the election, return, 
 and qualifications of its Members." 
 
 On March 20 and 21 ' the report was debated at length in the House, the history 
 and intent of the law of 1851 being fully considered. The fourth ground of the 
 minority was especially combated on the ground that the constitutional power to 
 judge implied also the right to investigate when and how the House should please, 
 untrammeled by law of a former Congress. 
 
 The resolution proposed by the majority was agreed to — yeas 80, nays 64. 
 
 598. The case of Williamson v. Sickles, continued. 
 
 Form of resolution providing for serving notice and taking testimony 
 in an election case conducted in disregard of the terms of the law. 
 
 The House by resolution may delegate the appointment of a commis- 
 sioner to take testimony in an election case and may prescribe the course 
 of procedure of said commissioner. 
 
 Instance wherein witnesses in a contested election case were to be 
 summoned by subpoenas issued by the Speaker. 
 
 On May 17, 1860,^ Mr. Henry L. Dawes, of Massachusetts, from the Committee 
 on Elections, reported the following resolution, which was agreed to without divi- 
 sion, although one Member protested that it was a violation of the law of 1851: 
 
 Resolved, That the judges of the superior court of the State of New York, residing in the city of 
 New York, be, and they are hereby, authorized and requested to appoint and select a commissioner of 
 the degree of counselor at law, whose duty it shall be to take the testimony in the matter of Amor J. 
 Williamson, contesting the seat now held by Hon. Daniel E. Sickles, from the Third Congressional dis- 
 trict of the State of New York, as provided and directed by the resolution passed by the House of Rep. 
 resentatives on the 21st of March, 18G0. It shall be the duty of the said commissioner so appointed to 
 enter upon his duties immediately after his appointment, and, after giving five days' notice to the parties 
 to this contest, to proceed from day to day with the examination of such witnesses aa may be brought 
 before him in support of the allegations of the contestant and certain allegations of the sitting Member 
 until the case is closed; provided such examination does not extend beyond sixty days from the time 
 of commencing the taking of such testimony. It shall be the duty of the commissioner appointed under 
 this resolution to provide the attorneys of the parties to this action with such number of subpcenas, 
 issued by the Speaker of this House, as they may require for the witnesses they desire to call. The 
 said commissioner is hereby directed to take up the case from the point which it had reached at the 
 time it was brought before the superior court on the 16th of May, 18G0; and all notices given on either 
 side are hereby declared good without further action. All witnesses must be sworn by some officer 
 authorized by the laws of the State of New York to administer oaths. On the conclusion of the case, 
 it shall be the duty of the commissioner hereby provided for to transmit a correct copy of the evidence, 
 pleadings, etc., under oath, to the House of Representatives. And each party is hereby authorized to 
 take the testimony of any witnesses resident in the State of New Jersey, before any judge of a court of 
 
 ' First session Thirty-sixth Congress, Globe, pp. 1255, 1278-1289; Journal, p. 563; 1 Bartlett, p. 288; 
 Rowell's Digest, p. 163. 
 
 2 Journal, p. 850; Globe, p. 2157.
 
 § 599 lEKEGULAR CREDENTIALS. 779 
 
 record or magistrate authorized to take depositions, resident in the State of New Jersey; and said judge 
 or magistrate is hereby authorized to do each and all things in the premises which the commissioner 
 hereinbefore mentioned is by this resolution authorized to do. The time for the taking of testimony 
 under this resolution is not to commence till the day of the adjournment of the first session of this Con- 
 gress, and is to extend sixty days thereafter, with the exception of such witnesses not resident of, or 
 living in, or being about to leave, the State of New York, as the contestant may desire to subpoena and 
 examine before said adjournment; and as to such witnesses, the commissioner or judge aforesaid, or 
 either of them, is hereby authorized in manner aforesaid to take and forward their depositions at any 
 time after the passage of this resolution and before the expiration of said sixty days, when application 
 shall be made to him for that purpose by the contestant. 
 
 599. The Colorado election case of Hunt and Chilcott in the Fortieth 
 Congress. 
 
 A governor having issued credentials in violation of law, the House 
 honored later credentials issued by his successor. 
 
 Credentials issued by the proper officer, but defective in form and 
 impeached by evidence, were overthrown by later credentials. 
 
 Credentials issued in violation of law to reverse the facts of the can- 
 vass of votes do not give prima facie right, although issued by the lawful 
 officer. 
 
 Credentials should show on their face specifically that they are given 
 to the person entitled by law to have them. 
 
 The House may give to its Elections Committee discretion to regu- 
 late the serving of notice and taking of testimony in an election case. 
 
 Form of resolution for instituting a contest to determine final right 
 after a determination of prima facie right. 
 
 On March 5, 1867,^ at the time of the organization of the House, conflicting 
 credentials were presented from the Territory of Colorado, and the House referred 
 them to the Committee on Elections, with instructions to report "at an early day 
 as to the prima facie right to a seat." 
 
 On March 14, 1867, ilr. Glenni W. Scofield, of Pennsylvania, submitted the 
 report of the majority of the committee.^ The report gives the certificate of the 
 governor of the Territory, as follows: 
 
 Executive Department, Colorado Territory, 
 
 Denver, September 5, 1866. 
 Sir: This is to certify that at an election held August 7, 1866, in accordance with the laws of Congress 
 and of the Territory of Colorado, for Delegate to represent said Territory in the Fortieth Congress of the 
 United States, you were duly elected such Del^^te. 
 
 In testimony whereof I have hereunto set my hand and caused the seal of the Territory of Colorado 
 to be affixed. Done at Denver, this 5th day of September, A. D. 1866. 
 
 [seal.] Alexander Cummings, 
 
 Attest: 
 
 Hon. A. C. Hunt, 
 
 Denver, Colorado Territory. 
 
 Governor of Colorado Territory. 
 
 Frank Hall, 
 Secretary of Colorado Territory. 
 
 ' First session Fortieth Congress, Journal, p. 11; Globe, p. 8; 2 Bartlett, p. 164; Rowell's Digest, 
 p. 212. 
 
 ' Report No. 3. The views of the minority were presented by Mr. Michael C. Kerr, of Indiana.
 
 750 PRECEDENTS OF THE HOUSE OF KEPEESENTATIVES. § 599 
 
 The report goes on: 
 
 The election laws of the Territory provide that " the secretary of the Territory, auditor, treasurer, 
 or anv two of them, in the presence of the governor, shall proceed * * * to canvass the votes given 
 for all Territorial officers, and the governor shall give a certificate of election to the person having the 
 highest number of votes for each office." 
 
 The certificate of the governor in favor of Mr. Hunt makes no allusion to this 
 canvass, nor does it give any data upon which the conclusion is based. This omis- 
 sion, although noticeable, would not of itself have been considered by a majority 
 of the committee fatal to the validity of the certificate. But Mr. Hunt did not rest 
 his case upon that paper alone. He introduced Governor Cummings in its support. 
 The governor informed the committee that on the 5th day of September a canvass 
 of the votes cast for Delegate was had in his presence by the board of canvassers; 
 that two of said board found that a majority of all the votes had been cast for George 
 M. Chilcott, and that one of said board dissented from this conclusion, and that he 
 (the governor), considering himself one of the board, agreed with the dissenting 
 member, making a tie, whereupon he determined the election himself, and made 
 a certificate in opposition to the conclusion of two members of the board. In addi- 
 tion to the governor's statement, among the papers submitted by the House is a 
 report of the board of canvassers, signed by Frank Hall, secretary of the Territory, 
 and Richard E. Whitsitt, auditor of the Territory, and addressed to the governor, in 
 which they state that at the canvass held in his presence, according to law, they 
 find that Mr. Chilcott had 3,529 votes and A. C. Hunt had 3,421 votes, by which it 
 would appear that 'Mr. Chilcott was elected Delegate by 108 majority. The certifi- 
 cate of the governor thus appears to have been issued in violation of the laws of the 
 Territory, in order to reverse the facts of the canvass. Under this state of facts the 
 committee do not feel authorized to report that Mr. Hunt is entitled prima facie 
 to a seat as Delegate. 
 
 The certificate of election presented by Mr. Chilcott is based upon the report 
 of the board of canvassers, and is signed by Frank Hall, acting governor of the Ter- 
 ritory; but it bears date February 5, 1867, five months subsequent to the action 
 of Governor Cummings in the same case. The committee are of the opinion, as held 
 in the case of Todd and Jayne, that this power, having been once exercised by the 
 proper officer, can not be again exercised by his successor, and that therefore Mr. 
 Chilcott was not entitled prima facie to a seat as Delegate. 
 
 The majority therefore recommended that the case be referred to the Committee 
 on Elections, with instructions to ascertain the final right to the seat. 
 
 The minority, in their views, denied outright that Governor Cummings made 
 the statement attributed to him in the majority report, and say that the committee 
 could not, under the resolution of reference, have considered parol evidence. The 
 minority argue on the issue presented: 
 
 We submit, therefore, that the prima facie title is in A. C. Hunt. The certificate held by liim 
 is executed in the usual form by the only officer having authority to issue the same, and is attested 
 by the proper officer. It alleges in comprehensive but apt and proper words the existence of every 
 material fact necessary to sustain such a certificate. Its language does not admit of any other construc- 
 tion without a tortuous disregard of the most common and accepted meaning of words and of established 
 rules of interpretation.
 
 § 599 IKREGULAE CREDENTIALS. 781 
 
 To have been "duly elected " "in accordance with the laws of Congress and of the Territory of 
 Colorado " certainly excludes the conclusion that the recipient of such a certificate could have received 
 less than "the highest number of votes." It is alike demanded by reason and authority that the words 
 used shall be taken in their most common and recognized acceptation, and that every fair and reasonable 
 inference shall be made in favor of the prima facie sufficiency of the paper, and even if the terms used 
 were ambiguous, that such a meaning should be affixed to them as would be most suitable to the subject- 
 matter and purpose of the certificate. Applying these rules to the case in hand, the right to the seat 
 would seem to be very clearly in Mr. Hunt, until the contest shall have been examined on its merits. 
 
 The certificate awarded to Mr. Hunt by the governor in this case is almost identical in form with 
 those generally given by governors of States to Representatives-elect to Congress which have always 
 been holden to be sufficient prima facie. 
 
 It can not with legal force or propriety be insisted that such a certificate, when executed by the 
 governor of a Territory, should contain any more extensive recitals of facts than when executed by the 
 governor of a State. In either case its substantial and reasonable purpose is attained if it states that 
 the holder of it is duly elected according to law. Such a certificate constitutes sufficient evidence of 
 a valid election prima facie, at first impression, and without submitting evidence of complete title 
 as against all men. 
 
 But it is claimed that this apparent title in Hunt is overcome by the certificate or paper already 
 referred to. which was executed and delivered to Mr. Chilcott five months afterwards by Frank Hall, 
 "secretary and acting governor of the Territory." How Mr. Hall, at the date of his paper, came to be 
 acting governor does not appear. WTiy he. five months before, as secretary, attested the certificate 
 and proclamation in favor of Mr. Hunt is entirely unexplained. The value of the paper must be deter- 
 mined by mere inspection and by comparison of it with those presented by Mr. Hunt. Thus tested 
 it is certainly defective as evidence of title in anyone. It is issued five months after the first and is 
 attested by no one. It is issued by the same officer who attested the first, but the inconsistency of 
 his connection with the two acts is not explained. It is executed solely by a person or officer of whose 
 right to assume the character of "acting governor of the Territory" this House can not take judicial 
 notice. At the time it was executed the authority to issue a certificate of election had been formally 
 exercised by the rightful governor of the Territory. That authority could not be again exercised in 
 reference to the result of the same election by another officer who might, by mere accident, become 
 temporarily entitled to act as governor. If any facts existed or came to the knowledge of the "acting 
 governor" after the execution of the regular certificate by the governor, they may constitute valid 
 ground of contest, and may defeat the prima facie right of Mr. Hunt to the seat, but such facts can not 
 be examined on a mere inquiry as to prima facie title. 
 
 On March 20 ' the report was debated at length in the House. It was explained 
 in this debate that the statement of Governor Cummings had been made not as 
 evidence of a witness, but as an admission while he was arguing as counsel, but 
 even on this view of his statement there was not entire unanimity on the part of 
 the committee. It was also stated in debate and not denied that among the papers 
 referred with the credentials was one giving the official returns from the several 
 counties, which sustained tlie report of the canvassing board and showed the election 
 of Mr. Cliilcott on the face of the returns. 
 
 In support of the argument that Mr. Chilcott had the prima facie right to the 
 seat it was urged that the certificate shoidd show that the governor had acted in 
 conformity to law in giving it, and the law directed the governor to give the certifi- 
 cate to "the person having the highest number of votes," as found by the board of 
 canvassers. The certificate did not show this. Taken together with the admissions 
 made and the papers filed with it, it was evidently not evidence of prima facie right. 
 If Governor Cummings had given a legal and valid certificate he would have 
 exhausted the function and another might not be issued. But the governor did 
 
 'Globe, pp. 225-233; Journal, pp. 73, 74.
 
 782 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 600 
 
 not give such a certificate, and so the acting governor at a later date might issue 
 a certificate that would entitle Mr. Ghilcott to the seat by prima facie right. 
 
 Therefore it was moved that the proposition of the committee be amended 
 so as to seat Mr. Ghilcott pending examination as to final right. This amendment 
 was agreed to — yeas 91, nays 36. The substitute of the minority was then disa- 
 greed to, and then the original resolution as amended was agreed to, and Mr. Ghilcott 
 was sworn in. 
 
 So it was — 
 
 Resolved, That the papers and evidence relating to the right of A. C. Hunt and George M. Chilcott 
 to a seat in the Fortieth Congress as a Delegate from the Territory of Colorado be referred to the Committee 
 of Elections, with instructions to report which, if either, of said claimants is entitled thereto; and that 
 the committee have power to require the service of such notices and grant such time for taking further 
 evidence as they may deem proper. 
 
 and that pending the action of the committee and the House thereon, George M. 
 Ghilcott be sworn in as the sitting Delegate from the Territory of Golorado. 
 
 Evidence was taken in the case,' but no report was made on the merits. On 
 July 25, 1868,^ the House passed a resolution reimbursing contestant for his expenses. 
 
 600. The election case of Whitmore v. Herndon, from Texas, in the 
 Porty-second Congress. 
 
 A question arising as to the suflB.ciency of papers purporting to be cre- 
 dentials, the House had the papers examined by a committee before per- 
 mitting the Member-elect to be sworn. 
 
 The House by resolution may modify the law as to the times and 
 places of taking the testimony in contested election cases. 
 
 On December 4, 1871,^ after the roll had been called by States and the presence 
 of a quorum had been ascertained, the credentials of W. S. Herndon, claiming a 
 seat from the State of Texas, were presented, and referred to the Committee of 
 Elections, Mr. Herndon not being sworn in. 
 
 On December 12,'' on report of the committee that he was entitled to the seat 
 on the strength of the documents presented, the House ordered Mr. Herndon to 
 be sworn in, and he accordingly qualified. 
 
 On December 18, 1871,^^ Mr. George W. McGrary, of Iowa, submitted from the 
 Gommittee of Elections a resolution, which was agreed to in the following amended 
 form: 
 
 Resolved, That the sixty days which the law allows for taking testimony in the contested election 
 case of G. W. Whitmore v. W. S. Herndon, from the first district of Texas, shall commence on the 1st 
 day of January, 1872. 
 
 Resolved, That either party to said contest be authorized to take the testimony of any witnesses 
 who may be found in the District of Columbia, at the city of Washington, before any officer authorized 
 by law to take depositions therein, within sixty days after the passage of this resolution, upon three 
 days' notice to the opposing party; no mileage to be allowed to such witnesses. 
 
 ' See Journal, second session Fortieth Congress, p. 124. 
 -Journal, second session, p. 1186; Globe, pp. 1901, 4471. 
 
 ^Second session Forty-second Congress, Journal, p. 8; Globe, p. 9. The questions arising as to 
 these credentials were the same as set forth in the case of W. T. Clark. See section 601 of this work. 
 * Journal, p. 61; Globe, p. 70. 
 •^Second session Forty-second Congress, Journal, p. 89; Globe, p. 199. 
 
 Ji
 
 § 601 IBBEGULAK CREDENTLiLS. 783 
 
 On May 24, 1872/ Mr. George F. Hoar, of Massachusetts, from the Cominittee 
 on Elections, submitted this resolution, which was agreed to without division: 
 
 Resolved, That William S. Hemdon is entitled to retain the seat he now holds as a Member from 
 the First Congressional district of Texas. 
 
 601. The Texas election case of Giddings v. Clarke in the Forty-second 
 Congress. 
 
 A person bearing credentials which, on their face, showed that the 
 governor issuing them was doubtful as to who was actually elected, was 
 seated by the House, there being provisions of law to justify the gover- 
 nor's act. 
 
 Form of resolution seating a person on prima facie showing without 
 prejudice to the rights of a contestant. 
 
 On December 4, 1871,^ after the roll had been called and the presence of a 
 quorum had been announced, several Members-elect, whose credentials were in 
 regular fomi, were sworn in. Then Mr. George W. McCrary, of Iowa, presented 
 the credentials of Mr. William T. Clark, of Texas, which he stated were not in regular 
 form, and wliich were as follows: 
 
 Governor's Office, Austin, November 15, 1871. 
 
 This is to certify that, on comparison of the returns of votes cast at an election held in the Third 
 Congressional district of the State of Texas, on the 3d, 4th, 5th, and 6th of October, A. D. 1871, provided 
 for by a joint resolution of the legislature of said State of Texas, approved May 2, 1871, I find that the 
 Hon. W. T. Clarke was duly elected to represent the said Congressional district of the State of Texas in 
 the Congress of the United States for the term commencing on the 4th day of March, A. D. 1871, and 
 ending on March 3, 1873. 
 
 In giving this certificate I wish to call attention to the attached certified statement of the vote cast 
 in the Third district as returned, with grounds for rejecting certain returns. This is explanatory of my 
 reasons for giving the foregoing certificate of election. According to my opinion, the numerous irregu- 
 larities and instances of fraud and violence dtiring the election in the Third district, reported and proved 
 to my satisfaction, would rather warrant a new election than the giving of a certificate to either party. 
 I have felt constrained by my interpretation of the provisions of the State law on the subject of elections 
 to reject many returns, and would have thought it more just to regard the election as a nullity, yet the 
 act of Congress of May 31, 1870,' section 22, seems to require that I should give a certificate of election 
 to one of the candidates. 
 
 In testimony whereof I have caused the great seal of the State to be aflaxed, at the city of Austin, 
 the date heroin first above written. 
 
 [sE.^L.] Edw.^rd J. Davis, Governor. 
 
 By the governor: 
 
 J. E. Oldrioht. 
 
 Acting Secretary oj State. 
 
 The credentials were referred to the Committee of Elections, and Mr. Clarke 
 was not sworn in. 
 
 On December 18, 1871,^ Mr. George F. Hoar, of Massachusetts, submitted the 
 
 report of the committee. This report stated the conditions of the law as follows: 
 
 It will be seen that the laws of Texas, under which the election for Members of the Forty-second 
 Congress was held, provide that the judges of election at each poll or voting place (sec. .33) shall count 
 
 ■Journal, p. 944; Globe, p. 3816. 
 
 ^Second session Forty-second Congress, Journal, p. 8; Globe, p. 9. 
 
 neStat. L., pp. 145, 140. 
 
 < House Report No. 2; Smith, p. 6; Rowell's Digest, p. 263.
 
 784 PRECEDENTS OF THE HOUSE OF KEPEESENTATIVES. § 601 
 
 the ballots, make a list of the names of persons and officers voted for, the number of votes for each, the 
 number of ballots in the box, the number of ballots rejected, and the reasons therefor. All this is to 
 be done "immediately after the close of the polls." This statement is to be made out in triplicate, 
 signed and sworn to, one copy sent by mail to the secretary of state, another copy sent to the governor, 
 and a third retained liy the registrar. 
 
 The twenty-first section provides that if there be any disturbance, intimidation, or corruption 
 which prevent or tend to prevent a free and peaceable election, the judges or registrar .shall make a 
 Btatement, under oath, thereof, corroborated by the oaths of three citizens, and transmit the same to 
 the governor. Section 34 requires the secretary of state to make a table containing an alphabetical 
 list of the counties, with columns for the names of candidates and the number of votes; and on the 
 sixteenth day after the close of the election, in the presence of the governor and the attorney-general, 
 to open the returns and enter on the table the number of votes given for the candidates, respectively, 
 and then put the returns back in the envelope, and seal and file them away. 
 
 The returning officers are to compile the statements first from all places where there has been a 
 fair, free, and peaceable registration and election. Then if there has been received any statement 
 from any judge or registrar of violence, intimidation, or corruption, as above stated, they are to see 
 whether these, if proved, would affect the result. If they would not, they are to proceed to canvass 
 and compile the returns from such voting place as if no such statement had been made. If they would, 
 the returning oflicers are to examine further testimony, with power to send for persons and papers, and, 
 whenever such illegalities are shown to have taken place at any voting place so as materially to affect 
 the result, then the said returning officers shall not canvass or compile the statement of the votes at such 
 poll or voting place, but shall exclude it from their returns. The secretary may also employ clerks 
 to compile the returns for a length of time not to exceed twenty days. 
 
 The foregoing provisions are all contained in a statute entitled "An act to provide for the mode 
 and manner of conducting elections, making returns, and for the protection and purity of the ballot 
 box." They do not make, in terms, any distinction between different classes of officers or purport 
 to be limited in their application to State officers exclusively, and they are the only provisions for 
 forwarding returns to the secretary of state or for any canvass or compilation which shall ascertain 
 the result. But section 23 provides that — 
 
 "As soon as possible after the expiration of the time of taking the returns of the election for Repre- 
 sentatives in Congress, a certificate of the returns of the election for such Representatives shall be entered 
 on record by the secretary of state and signed by the governor, and a copy thereof, subscribed by said 
 officers, shall be delivered to the person so elected and another copy transmitted to the House of 
 Representatives of the Congress of the United States." 
 
 The minority claimed that this paragraph above quoted was the only law of 
 Texas relating to the duties and power of the governor in regard to election returns 
 for Members of Congress, and that the provision of law relating to rejection of 
 returns by returning officers in case of violence, intimidation, corruption, etc., 
 applied only to returns of election of State officers. On this question of fact the 
 case to a considerable extent hinged. The majority could not say affirmatively 
 that the governor had rejected the rettirns referred to in the certificate in a legal 
 way after they^ had been duly certified up; but in the debate a communication 
 from the secretary of state of Texas was presented, showing that whatever rejections 
 were made were in strict conformity to all legal requirements. 
 
 The majority of the committee find Mr. Clarke's credentials satisfactory: 
 
 It is signed by the governor and secretary, declares Mr. Clarke to be duly elected, states that it is 
 a document on record in the secretary's office, and contains the tabulated statement of returns required 
 by law. It is true it docs not state that the attorney-general was present when tlie local returns were 
 opened, and it is not required to state this by the law. The certificate of the returns is all that is to 
 go on the record. It is true also that it shows that some local returns are rejected; but these are all 
 rejected for reasons which, by the express provisions of law, it was made the duty of these officers to
 
 § 601 IRREGULAR CREDENTIALS. 785 
 
 weigh and act upon, except in the case of Brazos County, which does not affect the result. It is true 
 also that it does not appear that, in investigating the allegations of violence and intimidation, the State 
 officers proceeded in the mode pointed out by the law: but it does not appear that they did not. It is 
 not necessary that they should record or certify how they proceeded. The maxim omnia rite acta esse 
 presumuntur is clearly applicable in a case of this sort. Few, if any, of the credentials of the Membere 
 of the House show how the officers who certified them proceeded under the State laws in ascertaining 
 the fact which he declares. It is enough for a prima facie case if the certificate came from the proper 
 officer of the State, and clearly shows that the person claiming under it has been adjudged to be duly 
 elected by the official or board on whom the law of the State has imposed the duty of ascertaining and 
 declaring the result. 
 
 We therefore recommend the adoption of the following resolution: 
 
 Resolved, That \V. T. Clarke has the prima facie right to a seat as Representative from the Third 
 Congressional district of the State of Texas, and is entitled to take tlie oath of office as a Member of 
 this House, without prejudice to the right of any person claiming to have been elected thereto to contest 
 his right to said seat upon the merits. 
 
 The minority views, presented by Mr. E. Y. Rice, of Illinois, thus attacked 
 the credentials: 
 
 Upon inspection it also appears that the same contains qualifications and recitals that go very 
 far to lessen its character, if not to destroy its validity altogether as prima facie evidence of title to a 
 seat in this House by W. T. Clarke. 
 
 The conclusion reached by Governor Davis, as appears from the closing lines of the certificate 
 in question, was not owing so much to the fact that he believed Mr. Clarke, or any other candidate, 
 to have been duly and legally elected, as to the fact that he was impressed with the belief that he was 
 compelled by the twenty-second section of the act of Congress of May 3, 1870, to give a certificate of 
 election to one of the candidates. 
 
 This certificate also refers to (and we hold adopts as a part thereof) a certified statement of the 
 vote cast in the Third district of the State of Texas for Representative in the Forty-second Congress 
 for said district. A copy of said certificate of election, certified statement of the votes returned, and 
 ■'remarks'' showing the rejection of votes returned, and the reasons or grounds of rejection, is herewith 
 submitted as a part of this report. 
 
 It appears by the vote returned, as shown by the certified statement referred to and verified by 
 the governor, that if the whole number of votes polled for W. T. Clarke were counted for him, and the 
 whole number polled for D. C. Giddings were counted for him, the majority for Mr. Giddings would 
 be 730 votes. 
 
 Mr. Giddings insists that the evidence furnished by the documents or certificates referred to the 
 committee shows that he was in fact duly elected, and that he is entitled to take his seat as a Member 
 of this House for the Third district of the State of Texas. If the votes are to be counted for the respective 
 candidates as they were returned to the secretarj' of state by the boards of election or registrars, then 
 Mr. Giddings is clearly entitled to the seat for said district. But if, on the contrary, the governor of 
 the State of Texas, after the votes for Member of Congress for said district were returned to him, had 
 lawful power and authority to reject all the votes which he states he did reject, then Mr. Clarke is entitled 
 to be admitted to his srat. if there was in fact a lawful and valid election held in said Third district of 
 the State of Texas at the time stated in said certificate. 
 
 This brings us to the question, What is the legal effect of a certificate stating that the party to 
 whom it is given was duly elected to an office, where the certificate recites or adopts by reference 
 a state of facts which shows that the holder was not elected? Clearly the facts must stand, and the con- 
 clusions which the facts contradict must fall. If the facts show, as we think they do, that Mr. Giddings 
 was elected, the statement that Mr. Clarke was duly elected can not be accepted. The question arises 
 as to the extent of the authority and power of the governor to reject the returns of the election as made 
 to him or the secretary of state. This is to be ascertained liy an examination of the election law of 
 the State of Texas. Upon a careful examination of the same we fail to find, according to our views of 
 correct interpretation, any such power. 
 5994— VOL 1—07 50
 
 786 PEECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 602 
 
 The report was debated at length on January 10, 1872,' and on that day the 
 question was taken on an amendment proposing to recommit the report, with instruc- 
 tion to report on the merits of the case. This amendment was disagreed to — yeas 
 81, nays 101. 
 
 The resolution of the majority was then agreed to — yeas 102, nays 78. 
 
 Thereupon Mr. Clarke appeared and took the oath. 
 
 602. The case of Giddings v. Clarke, continued. 
 
 The House by resolution sometimes fixes the time of taking testi- 
 mony, specifies the kind of testimony to be taken, and the places where it 
 may be taken. 
 
 The sitting Member should be allowed additional time to take testi- 
 mony only when the clearest evidence and strongest reasons justify the 
 concession. 
 
 In asking for extension of time to take testimony in an election case, 
 affidavits should state facts showing that with proper diligence it has 
 been impossible to take the testimony. 
 
 Affidavits filed with a request for time to take additional testimony 
 in an election case must state the names of the witnesses and the par- 
 ticular facts to be proven by them. 
 
 On January 12 ^ Mr. George W. McCrary, of Iowa, reported from the Committee 
 on Elections, and the House agreed to the following: 
 
 Resolved, That in the contested election case of Giddings v. Clarke, from the Third Congressional 
 district of Texas, the sixty days allowed by law in which to take testimony shall commence on the 1st 
 day of February next and shall close sixty days thereafter. That the testimony shall be confined to 
 the issues presented liy the pleadings, and may be taken before any officer authorized by law to take 
 depositions in the State of Texas. Either party may take testimony in the District of Columbia, before 
 any officer authorized, giving the opposite party or his attorney three days' notice of time and place: 
 Provided, No mileage shall be paid any such witnesses. 
 
 On May 7, 1872,' Mr. McCrary, from the committee, presented the report in the 
 case of Giddings i'. Clarke. Before proceeding to the merits a preliminary question 
 was disposed of. Under the above-\vritten order, the report says: 
 
 The contestant proceeded with diligence to take testimony within the time thus fixed, but the 
 sitting Member has failed to take any testimony in the manner provided by law, and the order of the 
 House to sustain the allegations of the answer or to rebut those of the notice. The time for taking testi- 
 mony having expired on the 1st day of April, the sitting Member, on the 24th of April, came before your 
 committee with a motion for an extension of time in which to take testimony on his behalf. This motion 
 was based upon the affidavits of the sitting Member and numerous other persons. These affidavits state 
 in substance and in general terms that a combination was formed among the friends of contestant to 
 indict the officers of election in the several counties upon charges of a violation of the election laws, and 
 thus to inaugurate a system of persecution against the sitting Member's friends and witnesses and deter 
 the latter from testifying. 
 
 They also state that, in pursuance of this combination, indictments were found against the governor 
 and secretary of the State of Texas, and against some of the election officers and others in the counties 
 of Hill, Navarro, Grimes, Harris, and Washington. It is averred that the finding of these indictments 
 
 ' Journal, p. 135; Globe, pp. 340-.349 
 ^Journal, n. 145; Globe, vv. 375, 376. 
 
 ' Journal, p. 135; Globe, pp. 340-349. 
 ^Journal, p. 145; Globe, pp. 375, 376. 
 'House Report No. 65; Smith, p. 91; Rowell's Digest, p. 279.
 
 § 603 IKKEGULAE CKEDENTIALS. 787 
 
 produced such a feeling of alarm and danger in the district that it was impossible to take testimony on 
 behalf of the sitting Member, but no overt act of violence is mentioned. The only specific fact given is 
 the finding of the indictments aforesaid. The affidavits are exceedingly general in their terms, and, 
 instead of stating facts, deal largely in the opinions or conclusions of the affiants. 
 
 After hearing arguments of counsel and carefully considering the question, your committee came 
 unanimously to the conclusion that no further time ought to be granted to the sitting Member for taking 
 testimony, and as this decision is important in its bearing upon this case and as a precedent for future 
 cases, some of the principal reasons for it will now be stated. 
 
 The first reason given was that, as the one asking the extension was the sitting 
 Member, to grant it would be practically to decide the case in his favor, since it 
 would continue him in the enjoyments and emolimients of the office for the greater 
 portion of the term. The report says : 
 
 It does not follow from these considerations that a sitting Member can in no case be allowed an 
 extension after the time allowed by law for taking testimony expires, but your committee think it does 
 follow that no such extension should ever be granted to a sitting Member unless it clearly appears that 
 by the exercise of great diligence he has been unable to procure his testimony, and that he is able, if an 
 extension be granted, to obtain such material evidence as will establish his right to the seat, or that by 
 reason of the fault or misconduct of the contestant he has been unable to prepare his case. 
 
 The other reasons related to the sufficiency of sitting Member's affidavits in 
 support of his request. They did not state facts from which it could reasonably 
 be inferred that the sitting Member had been unable with proper diligence to take 
 testimony; and furthermore: 
 
 The affidavits relied upon are fatally defective in this, that they do net state the names of the 
 witnesses whose testimony is wanted nor the particular facts which can bo proven by their testimony. 
 
 603. The case of Giddings v. Clarke, continued. 
 
 An election officer who was removed but not notified of the fact, and 
 whose successor failed to qualify, was a de facto officer, and returns signed 
 by him were not properly rejected. 
 
 There being testimony showing the vote of a precinct, it is not 
 material whether or not the returns are properly certified. 
 
 Where a statute fixes a penalty for marking a ballot and does not 
 require its rejection, the ballot should not be rejected. 
 
 As to the case on its merits the report discusses several featiu^es of the contest: 
 
 1. As to a question of rejecting certain returns because the polls had been 
 presided over by one not legally an election officer, the report says : 
 
 The vote of this county was rejected because, as stated in the governor's certificate, "no official 
 returns were received." It is manifest, however, that something in the character of returns must have 
 been received, because the number of votes cast for each candidate is stated in the certificate. Wherein 
 the returns were, in the judgment of the board, fatally defective, does not appear from the certificate. 
 It does appear, however, from the evidence, that John A. Biffle, who was registrar of Bosque County, 
 and who conducted the registration, was removed shortly prior to the election, and one Thomas Ford 
 appointed in his place; but that the former was not notified of his removal, and continued to act, while 
 the latter failed to qualify, and made no attempt to discharge the duties of the office. It seems probable 
 that the only objection to the returns was, that they were certified by Biffle, and not by Ford. If so, 
 the defect was not fatal, because the former was certainly acting as registrar under color of authority, 
 and was at least an officer de facto, whose official acts affecting third parties and the public must be 
 held valid. But, however this may be, the proof shows that the election was legally held, and that 
 contestant received 457 votes, and the sitting Member 77 votes. If the return was uncertified, it is 
 competent to show by other evidence what the vote was.
 
 788 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 604 
 
 After quoting what had been said in the report in the case of McKenzie v. 
 Braxton, the report continues: 
 
 In relation to Bosque County, we have the uncontradicted testimony of the officers who conducted 
 the election, showing what the result in fact was; and it is therefore not material to determine whether 
 the returns were properly and regularly certified or not. The vote of this county must be received. 
 
 2. As to certain distinguishing marks on ballots the report says: 
 
 The vote of this county was rejected by the board, and the reasons for its rejection are thus stated 
 in the certificate: 
 
 "Rejected. — The tickets were marked with numbers, contrary to provisions of section 10, chapter 
 78, General Laws, fall session twelfth legislature, 1870, thereby operating as a scrutiny upon the votes 
 and a restraint upon the freedom of voters. Further, that 49 persons of foreign birth had been per- 
 mitted to register and vote without legal proof of naturalization." 
 
 By reference to the statute here referred to it will be seen that it is made a misdemeanor for any 
 judge of election to place any number or mark upon the ticket of any voter; but it is not declared that 
 the vote of a legally qualified voter shall be rejected because his ballot is marked by the judges. We 
 should not be inclined to put a construction upon this statute which would enable an officer of election 
 to destroy the effect of a ballot cast in good faith by a legal voter, by placing a number or mark upon it. 
 A ballot may be thus marked or numbered without the knowledge or consent of the voter, and it would 
 be manifestly unjust that he should in this way be deprived of his vote. 
 
 We think it plain that inasmuch as the statute affixes a penalty for marking a ballot and does not 
 expressly declare that a marked ballot shall be thrown out, the board erred in rejecting the vote of this 
 county upon this grovmd. 
 
 On this point also the report in the case of McKenzie v. Braxton is cited. 
 
 604. The case of Giddings v. Clarke, continued. 
 
 Although excitement and alarm prevailed in a county with the pres- 
 ence of an armed force in the neighborhood of the polls, the committee did 
 not recommend the rejection or correction of the vote. 
 
 Instance wherein the person seated on prima facie showing was 
 unseated on examination of final right. 
 
 Instance wherein the House seated a contestant belonging to the 
 minority party, unseating a Member of the majority. 
 
 3. As to alleged intimidation, for which the vote of Limestone County had been 
 rejected by the State officials, the report, while not dwelling with care on this point, 
 says: 
 
 We are satisfied, however, that a large part of the vote of Limestone County was not cast. The 
 colored voters generally failed to vote, so that only 28 votes were cast for Clarke to 1,153 for Giddings. 
 That a state of excitement and fear existed in this county about the time of the election is clear. A 
 collision occurred between some colored policemen and certain white men, which resulted in the death 
 of one of the latter and the wounding of one of the former. This produced great excitement, and was 
 followed by a general uprising and arming of botli whites and blacks. On the day of election the town 
 where the election was held was occupied by an armed force under command of one Captain Richardson. 
 Pickets were stationed on all the roads leading into town, and persons coming in to vote were obliged to 
 obtain a pass from the military authorities. Although the witnesses say that all voters were permitted 
 to come and go in peace, and that the freedmen were urged to vote, yet it is clear that they abstained 
 from doing so for reasons which most men would consider good and sufficient. 
 
 4. In Washington County questions arose as to the use of two ballot boxes, but 
 they did not require to be settled, since a decision either to reject or retain the votes 
 of the two boxes would be fatal to the case of sitting Member.
 
 § 605 IKREGULAB CREDENTIALS. 789 
 
 On the whole, as a result of their reasoning, the committee found that contestant 
 was elected, and reported resolutions unseating sitting Member and seating con- 
 testant. 
 
 The report was debated on May 13,' when the resolutions were agreed to without 
 division. 
 
 Mr. Giddings thereupon appeared and took the oath.- 
 
 605. The Arkansas election case of Boles v. Edwards in the Forty-sec- 
 ond Congress. 
 
 Credentials bearing on their face evidence that they were not issued 
 in accordance with the requirements of law, the Clerk declined to enroll 
 the bearer. 
 
 The House sometimes gives prima facie effect to credentials which 
 are so far impeached on their face that the Clerk does not feel authorized, 
 under the law governing his action, to enroll the bearer. 
 
 On March 4, 1871,^ at the organization of the House, the Clerk' did not put on 
 the roll of Members-elect any name for the Tliird district of Arkansas, as the certifi- 
 cate bore upon its face evidence that it was not issued mthin the time prescribed 
 by law and as there was serious doubt whether the officer who executed it had at 
 that time the right to do so. 
 
 On March 7 ' the House agreed to this resolution : 
 
 Resolved, That the papers and credentials of Hon. John Edwards and the certified papers and 
 returns presented to the House of Representatives by Hon. Thomas Boles, each claiming to be elected 
 to the Forty-second Congress from the Third district of Arkansas, be referred to the Committee of Elec- 
 tions to be hereafter appointed, with instructions to report to the House which, if either, of said claim- 
 ants is entitled to a seat in the House of Representatives from the said Third district of Arkansas. 
 
 On March 22 " Mr. Luke P. Poland, of Vermont, from the Committee of Elec- 
 tions, submitted the following resolution, which was agreed to : 
 
 Resolved, That John Edwards, holding a regular certificate of election as the Representative from 
 the Third Congressional district of Arkansas, is entitled to be sworn in as the sitting Member from said 
 district, subject to the determination of the contest made against his right thereto by Thomas Boles. 
 
 606. The case of Boles v. Edwards, continued. 
 
 Parties should be held to a rigid rule of diligence under the law for 
 taking testimony in election cases, and no extension of time sho\ild be 
 granted where this rule is violated. 
 
 Both parties to an election contest may take their testimony at the 
 same time before different officers. 
 
 ' Journal, p. 852; Globe, pp. 3384, 3385. 
 
 - It may be noticed that Mr. Clark, who was unseated, was a member of the majority party in the 
 House, whUe Mr. Giddings, who was seated, was a member of the party in the minority. 
 'First session Forty-second Congress, Journal, p. 7; Globe, p. 6. 
 * Edward McPherson, of Pennsylvania, Clerk. 
 ^Journal, p. 1.5; Globe, p. 10. 
 "Journal, p. 100: Globe, p. 229.
 
 790 PKECEDBKTS OF THE HOUSE OF REPRESENTATIVES. § 607 
 
 On December 20, 1871,' Mr. G. W. Hazelton, of Wisconsin, presented a report 
 from the Committee of Elections, in response to a request from Mr. Edwards, the 
 sitting Member, that the time for taking testimony be extended : 
 
 At the organization of the Forty-second Congress the name of neither of the parties to this contest 
 was entered by the Clerk on the rolls of the House, and the question which of the parties was entitled 
 prima facie to theseat came before the committee at the first session of the present Congress in April last. 
 
 After argument and consideration of the question the committee resolved in favor of the respond- 
 ent, and, their report lieing adopted by the House, the said respondent was thereupon, and on the 21st 
 day of March, sworn in and took his seat. 
 
 On the 17th day of April thereafter the answer of respondent to the notice of contest was served 
 on contestant. The law of 1851, section 22, provides that the testimony taken by the parties, or either 
 of them, shall bo confined to the proof or disproof of the facts alleged or denied in the notice and answer, 
 and that the same shall be taken within sixty days from the time of service of the answer, unless the 
 House shall, in its discretion, allow supplementary evidence to be taken after the expiration of said 
 sixty days. 
 
 The respondent introduced a resolution in the House on the 5th day of April last, thirteen days 
 before his answer was served and before he could well have known that the time allowed by law for 
 taking testimony would be insufficient, asking that such time be extended sixty days beyond the limit 
 fixed by law. This resolution was referred to the committee, but no action was taken on it. The appli- 
 cation is now made by the respondent, which, if granted, extends the time of taking testimony sixty 
 days from the adoption of the resolution by the House. 
 
 In his affidavit, upon which he predicates the application, the respondent alleges "that the con- 
 testant occupied the whole of the time allowed by law for taking testimony and that he was compelled, 
 in looking after his own interest in the case, to attend the taking of said testimony of the contestant and 
 has had no time or opportunity to take any testimony in his own behalf," and on this ground alone he 
 rests his application. 
 
 The affidavits of the contestant and of Joseph Brooks and James L. Hodges, per contra, show that 
 the respondent was not present during the taking of contestant's testimony liut once, and then only for 
 a few minutes. 
 
 The law, moreover, is well settled that both of the parties may proceed with the taking of their 
 testimony at the same time, before different officers. 
 
 Up to this time the sitting Member has not taken any testimony whatever, nor does it appear that 
 he has taken a single step in that direction. It is difficult to see upon what ground the House can grant 
 the respondent's application made under these circumstances. 
 
 To say nothing of the terms of the law already quoted touching the extending of the time fixed to 
 allow supplementary evidence, which clearly relates to cases in which the applicant has taken some 
 evidence — that is to say, has made some use of the time given him — the policy of the House has been 
 adverse to granting extensions. Procrastination in these cases diminishes the object of the investiga- 
 tion and cheapens the value of the final decision. The law is intended to furnish ample opportunity 
 for taking testimony. Parties should be held to a rigid rule of diligence under it, and no extension ought 
 to be allowed where there is reason to believe that, had the applicant brought himself within such rule, 
 there would have been no occasion for the application. 
 
 The case of Vallandigham v. Campbell, in the Thirty-fifth Congress, and the case of Carrigan v. 
 Thayer, in the Thirty-eighth Congress, are referred to in support of the action of the committee in this 
 case. 
 
 607. The case of Boles v. Edwards, continued. 
 
 Instance wherein the House referred to an elections committee con- 
 sidering a particular case a report of a joint committee incidentally refer- 
 ring to said case. 
 
 'House Report No. 3, second session Forty-second Congress; Smith, p. 18; Rowell's Digest, p. 264.
 
 § 608 IRREGXJLAE CREDENTIALS. 791 
 
 A joint committee having taken testimony whicli incidentally related 
 to the right of a Member to his seat, the same was reported to the House. 
 
 On January 9, 1S72,' Mr. Luke P. Poland, of Vermont, from the Joint Select 
 Committee on the Insurrectionary States, submitted a report, in the course of which 
 was given the testimony of one Edward Wlieeler, who thus explained the indictment 
 of Governor Clayton, of Arkansas, bj' a grand jury: 
 
 It was claimed that Governor Clayton had violated certain sections of the enforcement act in giving 
 the certificate of election to General Edwards, when the returns, as exhibited to us by the secretary of 
 state, showed that Judge Boles had been elected. General Edwards presented a copy of his certificate of 
 election, and of the proclamation of the governor, stating that, according to the returns on file in the office 
 of the secretary' of state, General Edwards had been elected. But the returns, as exhibited to us, showed 
 that Judge Boles was elected by some 2,130 votes, I think it was, on the full vote, counting the votes at 
 both polls. There were allegations of fraud on both sides. But giving the governor the benefit of 
 every doubt, the least majority for Judge Boles, that we could figure out, was some 800 or 900; I forget 
 the exact figures. That was according to the returns shown to us, and upon that showing the indictment 
 was found. 
 
 The committee therefore reported the following: 
 
 The testimony of these witnesses tends to impeach the official character and conduct of a Member 
 of the United States Senate from the State of Arkansas, and also to affect the right of a Member of the 
 House of Representatives from that State to retain his seat in the House. Other evidence of the same 
 character was offered, and one of the gentlemen affected by this testimony claimed the right to bring 
 witnesses before the committee to contradict or explain the same. The committee, however, upon 
 consideration, decided that the subject-matter to which said testimony related did not come within the 
 limits of the* investigation they were directed to make, and therefore declined to prosecute the inquiry 
 any further, dischai^ing a witness who had been subpoenaed and was then awaiting an examination. 
 
 The joint select committee, pursuing what they deemed to be the proper parliamentary course, at 
 a meeting on December 21, 1871, adopted the following resolution: 
 
 " Resolved, That the committee report the testimony taken before the committee, affecting Senator 
 Clayton and Mr. Edwards, a Representative from Arkansas, to the Senate and House of Representatives, 
 with a recommendation that each House take such action as it may deem proper." 
 
 Agreeably to this resolution of said joint select committee, the undersigned, the chairman on the 
 part of the Senate, and the chairman on the part of the House of Representatives, beg leave to submit 
 the testimony hereto annexed, of Edward Wheeler and William G. Whipple, both of the State of Arkansas, 
 said Wheeler and Whipple having been the only witnesses from that State who were examined by the 
 committee, to the Senate and House of Representatives respectively, for such action as each House 
 may deem advisable. 
 
 This report was at once referred to the Committee of Elections.^ 
 
 608. The case of Boles v. Edwards, continued. 
 
 The Elections Committee declined to consider as evidence certain ofB.- 
 cial documents of a State submitted without authority from the House 
 and not decisions in a proceeding between the parties to the pending con- 
 test. 
 
 In an election case the decision of a State supreme court in a cause to 
 which the contestants were not parties was not received as evidence. 
 
 An opinion of an Elections Committee that the House may not dele- 
 gate to another tribunal its constitutional duty of judg^ing the elections 
 of its own Members. 
 
 ' House Report No. 5; Smith, p. 26. 2 Journal, p. 127; Globe, p. 321.
 
 792 
 
 PEECEDENTS OF THE HOUSE OF KEPKESENTATTVES. 
 
 § 608 
 
 On January' 19/ a resolution was presented proposing to allow sitting Member 
 five days in wliicli to introduce as evidence the official proceedings of the legislature, 
 supreme court, and executive of the State of Arkansas. This resolution was antag- 
 onized by the members of the Elections Committee, who urged that sitting Member 
 was entitled to no extension, and that the evidence would not be pertinent if pre- 
 sented. An amendment declaring that the sitting Member was not entitled to 
 further time was agreed to — yeas 129, nays, 46. The resolution as amended was 
 then agreed to. 
 
 On January 30, 1872,^ Mr. Hazleton presented the report of the committee on 
 the merits of the case. 
 
 No evidence whatever is presented by the respondent as to any irregularities or pretended 
 irregularities outside of Pulaski County; nor were any allegations of such irregularities made by 
 respondent in his oral argument before committee. 
 
 The respondent did, however, present to the committee and read in evidence, for what they might 
 be deemed worth, as bearing upon the result of the vote in Pulaski County, a report of a "joint" select 
 committee appointed by the senate and house of representatives of Arkansas to investigate election 
 frauds in Pulaski County; and a decision of the supreme court of Arkansas in a proceeding on the part 
 of Howard et al. v. McDiarmid, county clerk of Pulaski County, "praying for a mandamus against said 
 McDiarmid to compel him to certify certain election returns to the secretary of state." 
 
 It seems hardly necessary to say that neither of these documents were regarded as evidence by the 
 committee, or entitled to consideration in disposing of the case. 
 
 The legislative report is in no sense a judicial determination. It would not be recognized as 
 evidence even in any court of justice. It is simply the views of certain members of the legislature of 
 Arkansas upon the question submitted to them by the legislature. 
 
 But even if it were entitled to rank as a judicial determination, it could not be evidence in this 
 case — 
 
 First. Because it is not a decision in a proceeding between these parties. They had no hand in 
 creating the committee, and can not be affected by its acts; and 
 
 Second. The House being made by the Constitution the judge of the election returns and quali- 
 fications of its Members, can not delegate its authority to some other tribunal, and discharge by proxy 
 a solemn duty which the Constitution imposes on the House. 
 
 For like reasons the decision of the supreme court of Arkansas can not be regarded as evidence. 
 
 The ca.se is, therefore, left to stand on the proofs submitted V>y the contestant. 
 
 Outside of Pulaski County the contestant has a majority of 2 over the respondent. 
 
 In Pulaski County the majority for contestant is 2,151, making a total majority for contestant in the 
 district of 2,153. 
 
 It may not be improper to remark that upon the theory of the respondent, that the documents 
 above mentioned are evidence, and giving him the full benefit of them as testimony, the result is not 
 changed. 
 
 It makes no difference whatever to the sitting Member whether the committee take one view or 
 another of the "evidence" submitted by him. The contestant was elected and is entitled to the scat 
 in this House as the Member from the Third district of the State of Arkansas in the Forty-second Congress. 
 
 The committee have instructed the undersigned to further say that the testimony taken before the 
 joint committee to investigate the affairs of the South, and referred to this committee on the 9th day of 
 the present month, has been examined, and that in the judgment of the committee it contains nothing 
 reflecting on the character of any Member of the House; and the committee ask to be discharged from the 
 further consideration of such testimony. 
 
 The committee ask the adoption of the following resolution: 
 
 Resolved, That Thomas Boles is entitled to the seat in the Forty-second Congress as Representative 
 from the Third district of the State of Arkansas now occupied by John Edwards. 
 
 ' Joui-nal, p. 186; Globe, pp. 471-476. 
 2 House Report No. 10; Smith, p. 58.
 
 § 6U9 IBKEGTJLAB CKEDENTL\LS. 793 
 
 On February 9 ' the House considered the report, and after debate, which con- 
 sisted principally of a speech by sitting Member, the resolution reported by the 
 committee was agreed to unanimously. 
 
 Mr. Boles was thereupon sworn in.^ 
 
 609. The Indiana election case of Shanks v. Neff in the Forty-third 
 Congress. 
 
 Credentials which, on their face, implied that the one having prima 
 facie right did not have the final right were not honored either by the 
 Clerk or the House. 
 
 On December 1, 1873,' at the organization of the House, the Clerk announced 
 that the paper issued by the governor of Indiana for the Ninth district could not be 
 accepted as a credential within the meaning of the law, and therefore that neither 
 of the claimants was enrolled. 
 
 On the same day the paper of the governor was read in the House.* It was in 
 due form, certified by the secretary" of state under seal, and set forth that the 
 official returns of the several counties showed that John E. Xeff had 14 votes more 
 in the district than John P. C. Shanks, and continued: 
 
 " Now, if, in the judgment of the House of Representatives of the United States, 
 the said certificates of election of the said clerks" of the several counties "shall be 
 conclusive evidence of the facts herein stated, so as to preclude either the secretary 
 of state or the governor of Indiana from making inquiry into the truth thereof, 
 then, and in that case, I desire that this instrument shall be considered and taken 
 to be a certificate of the election of the said John E. Neff." 
 
 The paper then goes on to state that if the said certificate should not be conclu- 
 sive evidence so as to preclude the inquiry, then "I desire that this instrument shall 
 be considered or taken to be the certificate of the election of the said John P. C. 
 Shanks to the said office, I being satisfied that the said" Shanks in point of fact 
 received a majority of the votes. 
 
 The evidence on which he based this he stated to be " an affidavit of the inspect- 
 ors, judges, and clerks of the election * * * Jn and for the townsliip of Wabash 
 * * * that fortj^-seven ballots were voted at said precinct at said election 
 which, after having been received and placed in the ballot box, upon the counting 
 out of the votes were rejected and not counted in the returns of said election for 
 the reason that said ballots were headed on the top of the face thereof mth the 
 words 'Republican ticket,'" and that these tickets contained votes for Mr. Shanks. 
 The governor further expresses the opinion that the rejection was illegal. 
 
 Mr. George W. McCrary, of Iowa, proposed this resolution: 
 
 Resolved, That the credentials and papers on file in the Clerk's office concerning the election of a 
 Representative in this House from the Ninth Congressional district of Indiana be referred to the Com- 
 mittee of Elections, when appointed, with instructions to report at an early day. 
 
 'Journal, p. 314; Globe, pp. 934-938. 
 
 ' Both contestant and sitting Member lielonged to the majority party in the House. 
 
 ' First session Forty-third Congress, Record, p. 5. 
 
 * Record, p. 9.
 
 794 PRECEDENTS OF THE HOUSE OF REPKESENTATIVES. § 610 
 
 It was urged that the name of Mr. Neff should be placed on the roll as having 
 the prima facie right to the seat, but the House by a vote of yeas 176, nays 69, 
 agreed to the resolution presented by Mr. McCrary.' 
 
 On December 3 ^ testimony in the case was referred to the committee. 
 
 On December 8 ^ Mr. H. Boardman Smith, of New York, reported the following ■ 
 resolution : "■ 
 
 Resolved, That John P. C. Shanks is entitled to a seat in this House as a Representative in the 
 Forty-third Congress from the Ninth Congressional district of Indiana. 
 
 Mr. Snaith stated that there had never been any serious question except as to 
 the prima facie right. The resolution of the House referred the case on the merits, 
 and that case was clear to the committee. 
 
 The resolution was then agreed to without division. 
 
 Mr. Shanks then appeared and took the oath. 
 
 610. An instance wherein the House questioned credentials borne by 
 a Delegate-elect who himself had signed them as governor. — On December 
 11, 1865,^ Mr. James M. Ashley, of Ohio, presented the petition of Charles D. 
 Poston, asking to be admitted as Delegate from Arizona, which was referred to 
 the Committee of Elections. 
 
 On January 17, 1866,^ Mr. James G. Blaine, of Maine, presented the credentials 
 of John N. Goodwin as Delegate from Arizona. Mr. Goodwin does not appear on 
 the roll with the other Delegates at the time of the organization of the House. It 
 appears from the statement of Mr. Blaine that at first Mr. Goodwin had presented 
 credentials signed "by the governor of the Territory having himself the liighest 
 number of votes in the election." There being evidently same question, Mr. Good- 
 •mn presented credentials signed by the secretary of the Territory as acting gov- 
 ernor. On these credentials Mr. Goodwin was sworn in. 
 
 On July 9 " the Committee on Elections was discharged from consideration of 
 the case, no notice of contest or testimony having been filed before the committee. 
 
 611. In the Senate, where credentials have on their face raised a 
 question as to the constitutionality of the appointment, the bearer has 
 not been seated on prima facie showing. — On March 4, 1825,' at the special 
 session of the Senate, the credentials of Mr. James Lanman, of Connecticut, were 
 presented. This certificate was issued on February 8, 1825, and proposed to com- 
 mission Mr. Lanman from March 3, 1825, to the next meeting of the legislature of 
 Connecticut. This was a case where the governor had appointed for a vacancy to 
 occur in the future. The Senate decided not to admit ilr. Lanman on his creden- 
 
 ' Journal, p. 14; Record, p. 9. 
 
 -Journal, p. 42. 
 
 'Journal, p. 83; Record, p. 97. 
 
 * First session Thirty-ninth Congress, Journal, p. 39. 
 
 5 Journal, p. 155; Globe, pp. 275, 276. 
 
 '* Journal, p. 977; Globe, p. 3683. 
 
 ' Second session Eighteenth Congress, Contested Election Cases in Congress from 1789 to 1834, page
 
 § 610 IKEEGULAR CREDENTIALS. 795 
 
 tials. The report in this case contains a citation of former decisions in similar 
 cases.' 
 
 ' In the Senate, where the credentials have on their face indicated the existence of a question as to 
 the constitutionality of the appointment of a Senator, the Senate has referred the credentials and not 
 allowed the bearer to take the oath. See cases of Kensey Johns, of Delaware; Lee Mantle, of Montana; 
 Asahel C. Beckwith, of Wyoming; John B. Allen, of Washington; Henry W. Corbett, of Oregon; Andrew 
 T.Wood, of Kentucky; John A. Henderson, of Florida; Matthew S. Quay, of Pennsylvania; and Martin 
 Maginnis, of Montana. (See Senate Election Cases, special session Fifty-eighth Congre.ss, Senate 
 Document No. 11, pp. 1, 52, 83, 89, 104. 107, and 143.)
 
 Chapter XX. 
 CONFLICTING CREDENTIALS. 
 
 1. Decisioas of the House as to prima facie title. Sections 612-627.' 
 
 2. Principles dednced from Senate decisions. Sections 628-633. 
 
 612. The House has held that credentials regular in form and issued 
 by the proper officers should not be impeached by a certificate issued later 
 by the successors of said officers. — On October 15, 1877,- at the organization of 
 the House, while the Members-elect who had been called on the roll of the Clerk 
 were being sworn in, Mr. Joseph H. Rainey, of South Carolina, was challenged and 
 stood aside. On the succeeding day Mr. Samuel S. Cox, of New York, offered the 
 following: 
 
 Resolved, That the question of prima facie as well as the final right of J. S. Richardson and Joseph H. 
 Rainey, contestants, respectively, claiming a seat in this House from the First district of South Caro- 
 lina, be referred to the Committee of Elections, hereafter to be appointed; and until such committee 
 shall have reported in the premises and the House have decided said question neither of said contestants 
 shall be admitted to a seat. 
 
 It appeared from the debate, that Mr. Rainey presented a certificate from the 
 secretary of state of South Carolina, who, under the law of the State, had the func- 
 tion of making out the certificate, regular in form and on the strength of which the 
 Clerk had placed his name on the roll. But Mr. Cox presented a certificate from a 
 subsequent secretary of state impeaching the credentials, especially upon the ground 
 that the board of canvassers had certified the returns in contravention of an order 
 of the supreme court of the State and also on the ground that there had been intimi- 
 dation in the election. Governor Hampton, of South CaroUna, while admitting 
 that he could not with propriety express an official opinion, gave a personal indorse- 
 ment to the impeachment forwarded by the secretary of state. 
 
 It was argued in behalf of Mr. Rainey that he had the prima facie right to the 
 seat and should be seated in accordance with the practice of the House in such 
 cases. On the other hand, it was urged that the cases of Dailey and Morton in 
 
 ' See also the case of Wimpy and Christy. Section 459 of this volume. 
 ^ First session Forty-fifth Congress, Journal, p. 15; Record, pp. 60-64. 
 796 
 
 I
 
 § 613 CONFLICTING CREDENTIALS. 797 
 
 1862, of Hoge and Reed in 1869, and Buttz in the preceding Congress, afforded 
 precedents for sending the case to the Committee of Elections. 
 
 Finally Mr. Eugene Hale, of Maine, proposed the follo^ving substitute: 
 
 Resolved, That Joseph H. Rainey be now sworn in as a Representative in Con- 
 gress from the First district of the State of North Carolina. 
 
 This substitute was agreed to — ayes 175, noes 108. 
 
 The resolution as amended was then agreed to and the oath was administered 
 to Mr. Rainey. 
 
 613. The Shiel v. Thayer case, from Oregon, in the Thirty-seventh 
 Congress. 
 
 Of two claimants, each having credentials in apparently due form, 
 the House directed the administration of the oath to the one whom the 
 Clerk had enrolled. 
 
 On July 4, 1861,' during the swearing in of Members at the organization of the 
 House, Mr. John A. McClemand, of Illinois, submitted the following: 
 
 Resolved, That the question of prima facie as well as the final right of George K. Shiel and A. J. 
 Thayer, contestants, respectively, claiming a seat in this House from the State of Oregon, be referred to 
 the Committee on Elections, hereafter to be appointed, and that until said committee shall have reported 
 in the premises and the House decided said question neither of said contestants shall be admitted to a 
 
 seat. 
 
 In the course of the debate it appeared that under the constitution of Oregon 
 the election for Members of Congress was held in June, 1860, and that in that elec- 
 tion Mr. Shiel was elected and the proper certificate was issued to him. At the 
 Presidential election of November, 1860, although there was no law authorizing an 
 election of Congressmen at that time, persons in Oregon voluntarily opened polls 
 at certain places and votes were cast for Mr. Thayer, and Mr. Thayer appears to 
 have received a certificate of election in due form. It also appears that on this cer- 
 tificate Mr. Thayer's name was placed on the Clerk's roll. 
 
 The House, without division, laid the resolution on the table and the oath was 
 administered to Mr. Thayer. 
 
 614. The Clerk having honored credentials from a de facto governor, 
 the House confirmed the prima facie title, although there was a conflict- 
 ing certificate from an alleged de jure governor. — On December 6, 1875,' dur- 
 ing the swearing in of Members-elect, Mr. Fernando Wood, of New York, when the 
 State of Louisiana was reached, challenged the right of Mr. Frank Morey, of that 
 State, to take the oath. Mr. Morey's name had been placed on the roll by the Clerk, 
 and he had participated in the election of Speaker. But there was a question as 
 to the governorship of Louisiana, and Mr. Morey held a credential signed by Wil- 
 liam Pitt Kellogg, who had been recognized by the House as governor of Louisiana, 
 while another credential, signed by John McEnery as governor, had been presented 
 in behalf of Mr. William B. Spencer. 
 
 ' First session Thirty-seventh Congress, Joiirnal, p. 14; Globe, pp. 9, 10. 
 -First session Forty-fourth Congress, Journal, pp. 11-13: Record, pp. 1G8-171.
 
 798 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 615 
 
 The Glerk * of the House, wliile placing Mr. Morey on the roll, had brought the 
 other credential to the attention of the House. 
 
 Mr. Wood presented a preamble reciting the facts in regard to the two cre- 
 dentials and a resolution, which, after being modified at the suggestion of Mr. 
 L. Q. C. Lamar, of Mississippi, was as follows: 
 
 Resolved, That the credentials of Frank Morey from the Fifth district of Louisiana be referred to 
 the Committee on Elections, with instructions to report as soon as possible on his prima facie right to a 
 seat on the floor. 
 
 It was urged that the fact that the Clerk had brought the two credentials to 
 the attention of the House made it a case where the proper course would be to 
 refer both credentials to the committee to determine the prima facie right. On 
 the other hand, it was contended that Governor Kellogg was indisputably the gov- 
 ernor de facto, and that this was sufficient to seat the Member, leaving the question 
 of the de jure governorship to be settled by the committee which shoidd examine 
 into the contest. 
 
 The resolution of Mr. Wood was disagreed to, and then, on motion of Mr. 
 James G. Blaine, of Maine, 
 
 Ordered, That the oath of office be now administered to Mr. Morey. 
 
 615. The Nebraska election case of Morton v. Daily in the Thirty- 
 seventh Congress. 
 
 There being two conflicting credentials, the second intended to revoke 
 the first, the House declined to reverse the action of the Clerk in enroll- 
 ing the bearer of the second credentials. 
 
 A refusal of the House to strike a Member-elect's name from the 
 Clerk's roll and a decision to administer the oath to him was held to be 
 a final decision of prima facie right. 
 
 The House having passed on the prima facie right declined, pending 
 decision as to final right, to reconsider the action, although examination 
 had shown the credentials to be irregular. 
 
 On July 4, 1861," at the organization of the House, a question arose on a con- 
 test over the seat of the Delegate from Nebraska. On motion of Mr. William A. 
 Richardson, of Illinois, the question of administering the oath to Mr. Samuel G. 
 Daily, who was on the roll of the Clerk as Delegate from the Territory, was deferred 
 until after the organization of the House should be completed. 
 
 On July 5, the question coming up, Mr. Richardson moved that the name of 
 Mr. Daily be stricken from the Clerk's roll and that the name of Mr. J. Sterling 
 Morton be substituted. 
 
 The debate showed that in this case the governor of Nebraska had issued two 
 certificates, the first to Mr. Morton and the second, intended to revoke the first, to 
 Mr. Daily, the change being in consequence of a recount of the votes. 
 
 Mr. Richardson's motion was decided in the negative, 57 yeas and 75 nays, 
 and then it was voted to administer the oath to Mr. Daily. 
 
 'Edward McPherson, of Pennsylvania, Clerk. 
 
 -First session Thirty-seventh Congress, Journal, p. 14; Globe, p. 13.
 
 § 616 CONFLICTIKG CREDENTIALS. 799 
 
 On July 25, 1861/ the House discussed a proposition to determine who should 
 be the sitting Delegate from Nebraska pending the decision as to the final right to 
 the seat. At the first of the session the House had admitted Samuel G. Daily to 
 the seat on prima facie right. Mr. J. Sterling Morton petitioned that he be declared 
 the sitting Member, but the Committee on Elections reported that the House had 
 decided the prima facie question, and the House by laying the subject on the table 
 virtually sustained the report. 
 
 On April 14, 1862,^ the Committee on Elections reported in the case of Morton 
 V. Daily, from the Territory of Nebraska. 
 
 At the outset the question as to the final right to the seat was complicated by 
 a question as to prima facie right. In accordance with the findings of the board 
 of canvassers the governor had originallj' issued the certificate of election to Mr. 
 Morton. But seven months after Mr. Morton's certificate was issued, nearly two 
 months after the term of office of Delegate had commenced, but before the session 
 of the Congress had begun, the governor, without concurrence of the board of 
 canvassers, and without publicity, had issued another certificate to Mr. Daily. It 
 appeared that the seal of the new certificate was irregidar, also. 
 
 The House at the beginning of the Congress had seated Mr. Daily by virtue of 
 this certificate, and the majority of the committee say: 
 
 But the committee were of opinion that they had, in this hearing, nothing to do with the certifi- 
 cates; that the House had considered these certificates in deciding who should be the sitting Delegate 
 pending the contest, and that nothing was left to the committee at this hearing but to go behind all 
 certificates and ascertain who had a majority of the legal votes. 
 
 The minority of the committee contended that the second certificate was not 
 only irregular but a forgery, basing their contention on an ex parte affidavit which 
 had not been admitted by the committee as testimony. In the debate on May 6 
 and 7, 1862,^ this contention was discussed at length, the minority m-ging that 
 such irregularities and alleged fraud at the outset should taint the title of the 
 sitting Delegate thi-oughout. The majority of the committee, while admitting in 
 the debate that Mr. Daily's certificate was irregular, though not fraudulent, main- 
 tained their contention that the House had already passed on the prima facie case, 
 and that it should not be considered in determining the final right. 
 
 616. The case of Morton v. Daily, continued. 
 
 A reservation being excluded by law from the limits of a Territory, 
 the votes of persons residing thereon and not within the precinct as 
 required by law were rejected by the committee. 
 
 The law requiring the voter to reside in the precinct, the votes of such 
 as did not were rejected by the committee. 
 
 Because a county was not legally organized and the election was not 
 held on the legal day and nonresidents voted, the entire vote of the 
 county was rejected by the committee. 
 
 ' House Keport No. 3, first session Thirty-seventh Congress; Journal, p. 144; Globe, p. 265. 
 -House Report No. 69, second session Thirty-seventh Congress; 1 Bartlett, p. 402; Rowell's 
 Digest, p. 178. 
 
 ' Globe, pp. 1973, 1995.
 
 800 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 617 
 
 More illegal votes appearing than the total number cast for one can- 
 didate, the excess were deducted by the committee from the other candi- 
 date, in the absence of identifying evidence. 
 
 On the question of the final right the committee examined allegations and 
 answers relating to several kinds of fraud and irregularity: 
 
 (a) In the northern precinct of L'eau-qui-court County there were cast 122 
 fraudulent votes, in the opinion of the committee. Both by the United States 
 census and by witnesses this seemed proved to the satisfaction of the committee, 
 and these votes, all of which were for the contestant, were rejected. The con- 
 testant did not produce the testimony of witnesses from the place itself to show 
 that the votes were legal, but attempted to shake the credibility of witnesses 
 for sitting Member. The minority of the committee concluded that the witnesses 
 of the sitting Member were successfully impeached, especially as one of them made 
 oath against liis own record as an election officer, made imder oath. 
 
 (b) In Monroe precinct the committee deducted 18 votes for contestant and 
 3 for sitting Member because they were nonresidents or inliabitants of an Indian 
 reservation, which by the law was excluded from the limits of the Territory, and 
 was, moreover, not within the limits of the voting precinct, although the law of the 
 Territory required the voter to be a resident of the precinct. 
 
 (c) The poll of Buffalo County, 39 votes for the contestant, was rejected by 
 the committee because the county was not legally organized. Moreover, the poll 
 was held open on the day succeeding the appointed day, and several votes appeared 
 to be cast by nonresidents. 
 
 {d) The sitting Delegate objected to the vote of Rulu precinct on the groimd 
 that certain voters were not residents of the precinct, as required by law. The 
 committee sustained this objection, saying: 
 
 While the committee have been at all times disposed, so far as they can, consistently with the 
 provisions of law, to give effect to the will of the voter, expressed in good faith, they do not see how 
 they can count the vote of a nonresident of a precinct any more than they could a nonresident of the 
 county or Territory. The provision of law that a man must vote in the precinct where he resides seems 
 to the committee to be a wise one to prevent double voting, and they know of no way to enforce that 
 wise provision except to insist upon its observance. 
 
 It appears that 24 nonresident whites and 5 half-breed Indians voted at this precinct, but it is 
 uncertain for whom they all voted; but as Mr. Daily received but 9 votes in all at this precinct, 20 of 
 them at least must have voted for Mr. Morton. The committee therefore reject that number from the 
 count of Mr. Morton. 
 
 (e) The contestant objected to the poll of Falls City, alleging frauds. The 
 majority of the committee felt that the evidence did not sustain this charge. 
 
 617. The case of Morton v. Daily, continued. 
 
 No legal notice of election at a certain precinct being given, the 
 poll was rejected by the committee although the day of election was 
 fixed by law. 
 
 The returns of a county, stating the actual aggregate vote for each 
 candidate, were not rejected by the committee for defect in form.
 
 § 618 CONFLICTING CBEDENTIALS. 801 
 
 (/) In the Grand Island precinct of Pawnee County it appeared from the cross- 
 examination of one of Mr. Daily's (sitting Delegate) watnesses — 
 
 that no legal notice of this election was given at that precinct, although the vote seems to have been 
 fairly cast; yet the committee deem the notice prescribed by law essential, and do not feel at liberty 
 to say, in the absence of such notice, that all persons had an opportunity to vote. The committee are 
 aware that the time of this election was fixed by law, and that all are presumed to know the law; but 
 in a new country like this, in precincts newly opened and counties sparsely settled, they deem actual 
 notice a safer rule, and therefore reject the 29 votes cast for Mr. Daily at the precinct of Grand Island, 
 in Hall County. 
 
 (g) In certain counties the contestant objected to the form of the returns, and 
 the minority of the committee contended in support of this objection. The majority 
 held, however — 
 
 Mr. Morton claimed that the votes in the counties of Clay, Dodge, Cass, Hall, Johnston, Lancaster, 
 Nemaha, Pawnee, and Washington, although counted by the board of canvassers, should all be rejected 
 for defect in the form of return. It was not claimed by Mr. Morton that these returns were false in 
 fact, but that the law required that "abstracts" of the vote of each county should be returned to the 
 board of territorial canvassers, when in truth the return from each of the above-named counties was 
 the aggregate of the vote for each of the respective candidates for office in that county. Admitting 
 that Mr. Morton has made the true distinction, and that an aggregate of the votes thus cast for each 
 candidate in any given county is not an abstract of such votes, is it the duty of the committee to reject 
 the votes thus returned for that reason? If there had been no return at all of the votes cast in these 
 counties, it would have been plainly the duty of the committee to have ascertained by other testimony, 
 if possible, the actual vote cast in these counties. Now, as it is not denied that the returns from these 
 counties state the actual aggregate vote cast in those counties, the committee take them as evidence of 
 such votes, and count the votes so returned and counted by the Territorial canvassers. 
 
 618. The case of Morton v. Daily, continued. 
 
 It not being shown that the law required a record of the qualifi- 
 cation of an election oflB.cer, the committee declined to assume from 
 absence of the record that he was not qualified. 
 
 An afladavit taken without notice to opposing candidate and before 
 the result had been determined was rejected as evidence. 
 
 The report of an election committee being laid on the table, the sit- 
 ting Member retains the seat. 
 
 (h) Contestant objected to certain votes in Pawnee County because — 
 
 in the fourth precinct, in said county, where said Daily received 13 votes, and this respondent 7 votes, 
 there was no legally constituted election board; those acting as judges were neither sworn nor qualified, 
 as required by law; therefore the votes of said precinct ought to be rejected. 
 
 The committee say: 
 
 The only evidence in support of this allegation is that of Newcomb (p. 157), from which it appeare 
 that while the county commissioners appointed three persons to serve as judges of election in each of 
 the two precincts of Wyoming and Otoe, the returns from each of those precincts were signed by only 
 one of the persons thus appointed, with two other persons associated with him in each case, and that 
 there is no record on file in the clerk's office of the appointment of these two persons at each precinct 
 to act as judges of the election. The committee understand the law of Nebraska to authorize the appoint- 
 ment and qualification of persons to act as judges of election in the absence of those regularly appointed 
 beforehand by the county commissioners. Mr. Morton does not show that these men thus acting were 
 not duly qualified. He only shows that there is no record of such qualification in the county clerk's 
 office, nor has he shown that the law requires any record thereof to be kept there. In the absence 
 5994— VOL 1—07 51
 
 
 802 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 619 
 
 of any certificate of such qualification, it is always a matter of proof by parole whether such judges 
 ■were qualified or not. The committee do not assume that they were not qualified. The only evidence 
 offered by Mr. Morton in support of his nineteenth allegation was a joint afiidavit (p. 113 of the testimony), 
 signed by three persons, Johnson, Wagner, and Barnard, and sworn to on the day of the election, without 
 notice to Mr. Daily, and before the votes were canvassed, or any notice of contest whatever. The com- 
 mittee for this reason rejected this testimony. 
 
 (i) Contestant also alleged that Pawnee County was not organized according 
 to law, but failed to satisfy the committee of this in face of the fact that the legis- 
 lature in 1857-58 had recognized it as a county by making it a representative district. 
 
 The above are the essential issues involved in the contest, the committee 
 finding in conclusion a majority of 150 for the sitting Delegate. On May 6 and 7' 
 the report was debated at length. On the latter day the whole subject was laid on 
 the table, yeas 64, nays 38,^ thus leaving the sitting Delegate in possession of the 
 seat. 
 
 619. The election case of Jayne and Todd, from Dakota, in the Thirty- 
 eighth Congress. 
 
 In view of the existence of conflicting credentials, the House declined 
 to administer the oath to a person enrolled by the Clerk as a Delegate. 
 
 Credentials in due form issued by an oflicer intrusted by law with 
 that function were held to establish prima facie right against the certifi- 
 cate of another oflB.cer showing the actual state of the vote. 
 
 A governor empowered by law to issue credentials may certify to his 
 own election to the House. 
 
 No law requiring the seal of the Territory to be aflixed to credentials 
 of the Delegate, the absence of the seal did not invalidate the credentials. 
 
 On December 7, 1863,' at the organization, during the swearing in of Members 
 and Delegates, Mr. J. B. S. Todd, who was on the Clerk's roll as Delegate from 
 Dakota, was called. 
 
 Mr. Owen Lovejoy, of Illinois, demanded the reading of the credentials of 
 Mr. Todd and at the same time presented the credentials of Mr. William Jayne, 
 claiming a seat as Delegate from the same Territory. 
 
 Mr. Lovejoy then moved that the credentials of Mr. Todd be referred to the 
 Committee on Elections. This motion was agreed to, and the oath was not admin- 
 istered to Mr. Todd. Mr. Todd had a credential from John Hutchinson, secretary 
 and acting governor, which merely stated the facts to show that Mr. Todd had more 
 votes than his opponent, William Jayne. There was also a certificate from John 
 Hutchinson, as secretary, that he had not issued a certificate of election to any- 
 one, and also a certified copy of a proclamation wherein John Hutchinson, secretary 
 and acting governor, declared that William Jayne received the majority of the 
 votes, and finally a certificate wherein William Jayne, as governor, certified that 
 William Jayne (himself) had been elected Delegate. 
 
 ' Globe, pp. 1973, 1995. 
 
 = Journal, p. 653; Globe, pp. 2009, 2010. 
 
 ^ First session Thirty-eighth Congress, Journal, p. 13; Globe, p. 8. 
 
 i
 
 § 619 CONFLICTING CKEDENTIALS. 803 
 
 The Committee on Elections reported on January 13, 1864.* The committee 
 first describe the credentials. Those of Mr. Jayne consisted of: 
 
 First. A proclamation by John Hutchinson, "secretary and acting governor 
 of the Territory of Dakota," dated November 29, 1862, bearing the seal of the 
 Territory, "that at a general election held on the 1st day of September, 1862, 
 in said Territory, William Jayne received a majority of the votes cast for Delegate 
 to Congress, and was therefore duly elected Delegate to the Thirty-eighth Congress 
 of the United States." 
 
 Second. A certificate, signed by himself, "William Jayne, governor of Dakota 
 Territory," dated January 5, 1863, and sealed with the seal of the Territorj', cer- 
 tifying the same facts set out in the proclamation of date November 29, 1862, signed 
 by John Hutchinson, secretary and acting governor. 
 
 Mr. JajTie was absent from the Territory at the time the proclamation was 
 issued, but returned before the issuing of the certificate. 
 
 The credentials of Mr. Todd were : 
 
 First. A certificate, signed by "John Hutchinson, secretary and acting gov- 
 ernor," dated August 15, 1863, and sealed with the seal of the Territory — 
 
 that according to the canvass made by the Territorial canvassers, on the 24th day of October, 1862, of the 
 votes for Delegate to Congress, William Jayne had a majority over J. B. L. Todd of 16 votes; and that 
 subsequent to said canvass returns were made to this office, in due form, of votes from Pembina district, 
 as follows: For J. B. L. Todd, 125; for William Jayne, 19, which said votes were not included in the 
 canvass made by the Territorial canvassers, but are now on file in this office. 
 
 Second. Another certificate, signed "John Hutchinson, secretary," dated Sep- 
 tember 26, 1863, with the seal afiixed, certifv^ing — 
 
 that I have not issued a certificate of election to any person as Delegate to Congress from this Territory, 
 that there is no record in this office of any having been issued by any person, and that I have no official 
 knowledge of the Territorial seal having been affixed to any such certificate. 
 
 The committee, in their investigation, confined themselves entirely to the 
 prima facie case, giving no attention to the question of final right. 
 The report makes the following statement of fact : 
 
 The election of Delegate was held, according to law, on the 1st day of September, 1862. The laws 
 of Dakota make it the duty of the secretary of the Territorj', if the returns from any county have not been 
 received at his office within forty days after an election, to send a special messenger therefor. No mes- 
 senger was sent to any county in this case. It is made the duty of the secretary, the chief justice, and 
 the governor " to proceed within fifty days after the election, and sooner, if all the votes be received, to 
 canvass the votes given for Delegate to Congress, and other Territorial officers, and the governor shall grant 
 a certificate of election to the person having the highest number of votes, and shall also issue a procla- 
 mation declaring the election of such person. If either of the persons mentioned in this section as can- 
 vassers be a candidate for Delegate to Congress, such person shall take no part in the canvass of said 
 votes." By the organic act, in the absence of the governor from the Territory, the secretary shall be 
 acting governor. 
 
 On the 24th of October, 18G2, the fifty days for the returns to be made having expired, the chief 
 justice and secretary of the Territory, in the absence of the governor, Mr. Jayne, who was one of the 
 candidates, proceeded to canvass the votes for Delegate, and on the 29th of October the secretary of the 
 Territory, as acting governor, the governor being still absent from the Territory, made proclamation of 
 the result, viz, that "William Jayne received a majority of the votes cast for Delegate to Congress, and 
 
 ' House Report No. 1.
 
 804 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 620 
 
 ■was therefore duly elected Delegate to the Thirty-eighth Congress of the United States." A certified 
 copy of this proclamation, under the hand of said secretarj', acting governor, sealed with the seal of the 
 Territory, Mr. Jayne presents as his credentials. 
 
 The law of the Territory also requires a certificate of the same facts to be issued by the governor to 
 the person so declared elected. Mr. Jayne having returned to the Territory before this certificate was 
 issued, all authority of the secretary, as governor, ceased at once; and if the certificate was to be issued 
 at all, it must be issued by Mr. Jayne himself, he alone being governor. He accordingly, on the 5th of 
 January, 186.3, certified to the facts found by the canvassers and proclaimed by the acting governor in 
 his absence. This certificate is also presented here, along with the proclamation of the acting governor. 
 
 The committee go on to show that here the official comiection of the board of 
 canvassers ceased and that the secretary had no authority nine months after the 
 canvass had been made and the result announced to issue the certificate to Mr. 
 Todd. The statement of the secretary that he had issued to no one a certificate of 
 election and had not affixed the seal of the Territory to any certfficate was of no 
 effect, as the law did not authorize him to do cither. 
 
 The committee "fixid that the credentials of ilr. Jayne are in strict conformity 
 to the laws of the United States and the Territory declaring him, under the seal of 
 the Territory and the signature of both the acting and actual governor of the Terri- 
 tor\-, to be duly elected Delegate to the Thirty-eighth Congress." Mr. Todd presented 
 no such paper. Mr. Jayne had also presented a later certificate signed by the 
 present governor. 
 
 The committee therefore recommended the adoption of the following: 
 
 Resolved, That William Jayne, having presented a certificate in due form of law of his election as 
 Delegate from the Territory of Dakota to the Thirty-eighth Congress, is entitled to take the oath of office 
 and occupy a seat in this House as such Delegate without prejudice to the right of J. B. S. Todd, claiming 
 to be duly elected thereto, to prosecute his contest therefor according to the rules and usages of this 
 House. 
 
 On January 15' the report was discussed in the House. It was urged that 
 the certificate was irregular because issued by Governor JajTie to himself without 
 the document being sealed by the secretary. On the other hand, it was argued 
 that the governor might certify to his own election and that no law required the seal. 
 
 The question was taken first on an amendment declaring that neither claimant 
 should be admitted to a seat until the final right should be determined. This was 
 decided in the negative — yeas 66, nays 78. The resolution reported hy the committee 
 was then agreed to.^ 
 
 J^Ir. Jayne thereupon appeared and took the oath. 
 
 620. The South Carolina election cases of Hoge and Reed and Wallace 
 V. Simpson in the Forty -first Congress. 
 
 In case of conflicting credentials, one intended to revoke the other, the 
 Clerk enrolled neither claimant. 
 
 In 1869 the House ordered that in all election contests wherein either 
 claimant should be unable to take the oath of loyalty, the investigation 
 of claimant's rights should cease pending order of the House. 
 
 ' Globe, pp. 234-238. -Journal, p. 148; Globe, p. 238.
 
 § 620 CONFLICTING CREDENTIALS. 805 
 
 After careful reconsideration of the principles of a former action, the 
 House declined to honor credentials doubtful as to legal form and intended 
 to revoke credentials correct in form. 
 
 Discussion of the right of certifying oflicers to revoke credentials 
 already issued and issue others. 
 
 On March 4, 1869/ when the House was organized, the roll of the Clerk was 
 found not to include the names of Representatives from the Third and Fourth dis- 
 tricts of South Carolina. 
 
 On March 9^ the House agreed to the following resolution: 
 
 Resolved, That the cases of the claimants to seats in the Forty-first Congress from the Third and 
 Fourth Congressional districts of South Carolina, with all papers relating to the same, be referred to the 
 Committee of Elections, when appointed, with instructions to report as soon as practicable which of 
 the claimants, if either, are entitled to seats. 
 
 On March 22, 1869,' the House agreed to the following: 
 
 Resolved, That in aH contested-election cases referred to the Committee of Elections in which it 
 shall be alleged by a party to the case, or a Member of the House, that either claimant is unable to take 
 the oath prescribed in the act approved July 2, 1862, entitled "An act to prescribe an oath of office, and 
 for other purposes," it shall be the duty of the committee to ascertain whether such disability exists- 
 and if such disability shall be found to exist the committee shall so report to the House, and shall not 
 further consider the claim of the person so disqualified without the further order of the House; and no 
 compensation will be allowed by the House to any claimant who shall have been ineligible to the office 
 of Representative to Congress at the time of the election, and whose disability shall not have been 
 removed by act of Congress, 
 
 In accordance with this resolution, the conunittee reported^ that J. P. Reed, 
 one of the claimants for the seat from the Third district, was unable to take the 
 oath. This disposed of his claim to the seat. 
 
 But a question arose as to the prima facie right, and on April 2, after the report 
 as to Mr. Reed's qualification had been presented, the committee reported on the 
 prima facie right.^ It appeared that there were two certificates, thus described 
 and discussed by the majority of the committee: " 
 
 One of these certificates was signed by three persons styling themselves canvassers for said State, 
 and certifies that J. P. Reed was duly elected by a majority of votes in said Third district. 
 
 The other certificate was signed by four persons styling themselves canvassers for the State (three 
 of the persons signing this being the same who signed the first-named certificate), and certifies that 
 S, L. Hoge was duly elected by a majority of the legal votes in said Third district. 
 
 The phraseology of these certificates is somewhat different. In the certificate given to Reed, it is 
 certified that he is duly elected by a majority of votes, while in the other it is certified that S. L. Hoge 
 is duly elected by a majority of the legal votes of said district. It is evident, as will presently appear, 
 that it was the intention of the canvassers to supersede, by the certificate given to Hoge, the one they 
 had already given to Reed, and this accounts, no doubt, for the difference in the language used. 
 
 ' First session Forty-first Congress, Journal, p. 5. 
 ^Journal, p. 22. 
 ^Journal, p. 91. 
 * House Report No. 3. 
 
 = House Report No. 6; 2 Bartlett, p, 540; Rowell's Digest, p. 233. 
 
 ^ Report submitted by Mr. John Cessna, of Pennsylvania. The minority views were signed by 
 Messrs. Albert G. Burr, of Illinois, and Samuel J. Randall, of Pennsylvaina.
 
 806 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 620 
 
 It appears, also, that one of the canvassers (J. L. Neagle) who signed the certificate of Reed, with- 
 drew his signature to said certificate in the following language : 
 
 ''I therefore desire that the aforesaid certificate be considered as though my name was not attached 
 
 and this same certificate to have all the force of a certificate of the election of Hon. S. L. Hoge in full 
 
 force and effect. 
 
 "J. L. Neagle, 
 
 " Comptroller-General, South Carolina." 
 
 This withdrawal leaves but two signatures to the certificate of Reed. This, according to the 
 Statutes at Large of the State of South Carolina (vide, sec. 35), invalidates the certificate, three can- 
 vassers being required to make a valid certificate. The question then arises. Can the canvassers, after 
 having given one certificate, withdraw their action and give another to a different party? This ques- 
 tion was decided in the case of Morton v. Daily. (Bartlett's Contested Election Cases, p. 403.) 
 
 We think, also, that this decision can be sustained upon principle. The question is entirely 
 within the control of the State canvassers or the governor of the State (as the case may be under the 
 law) until the roll of the House is made up by the Clerk. There is no vested right, under a certificate, 
 that would prevent the canvassers from rectifying any error or mistake that may have occurred in their 
 deliberations or action, until the holder of the same has been awarded his seat by the Clerk of the 
 House. 
 
 This principle is illustrated in the case of an attorney in fact; in which case, it is not doubted, the 
 principal can withdraw or annul the power granted at any time before its purpose is executed. 
 
 Conceding, as a majority of the committee do, the right of these canvassers to reverse their first 
 action in the premises and give a second certificate to Mr. S. L. Hoge, we do not think it necessary to 
 examine the mass of testimony which seems to have been taken, upon due notice to the opposite party, 
 but we append to this report the reasons given by the Slate canvassers for their action in this case. 
 (Vide Appendix, marked C.) 
 
 The committee therefore recommend the following resolution: 
 
 Resolved, That, upon the papers referred to the Committee of Elections in the contested case of 
 S. L. Hoge 1). J. P. Reed from the Third Congressional district of South Carolina, S. L. Hoge is prima 
 facie entitled to a seat in the House as the Representative of said district, subject to the future action of 
 the House as to the merits of the case. 
 
 The minority of the committee dissented, saying at the outset: 
 
 although we may not consider his papers in support of his own claim until he shall have been relieved 
 of disabilities, we may and must consider his papers in order to determine whether the papers relied 
 upon by his competitor show upon the face superior title to the seat in dispute. 
 
 The minority quote the law of the State constituting the board of canvassers, 
 of which the following is a part : 
 
 XXXVII. The board when thus formed shall, upon the certified copies of the statements made by 
 the boards of canvassers, proceed to make a statement of the whole number of votes given at such election 
 for the various ofiices and each of them voted for, distinguishing the several counties in which they 
 were given. They shall certify such statements to be correct and subscribe the same with their proper 
 names. 
 
 XXXVIII. Upon such statements they shall then proceed to determine and declare what persons 
 have been, by the greatest number of votes, duly elected to such offices, or either of them. 
 
 The minority present the statement of votes made up by the canvassers in 
 accordance with the law, which gave J. P. Reed 11,774 votes and S. L. Hoge 8,766 
 votes. To Mr. Eeed also was issued the certificate as to the determination reached 
 by the board as to "what persons have been, by the greatest number of votes, duly 
 elected to such offices." This declaration was duly signed by all the State can- 
 vassers. To Mr. Reed also was issued the certificate of the governor under the seal 
 of the State, commissioning him as Representative.
 
 § 620 CONFLICTING CREDENTIALS. 807 
 
 As to the claim of Mr. Hoge, the minority say: 
 
 The only papers in support of his prima facie claim are, first, a certificate by the board of State 
 canvassers, purporting to have been executed on the same day as that held by Mr. Reed; and second, 
 a separate "statement of the board of State canvassers of South Carolina in the case of the election of 
 J. P. Reed." Let us consider the certificate first. It differs from that held by Mr. Reed only in three 
 particulars and need not therefore be set out here, except so far as the difference is to be considered. 
 Reed's certificate declares him to "have been duly elected by a majority of votes." Hoge's declares 
 him to "have received a majority of legal votes." The next point of difference is that Hoge's paper 
 bears the signature of Daniel H. Chamberlain, attorney-general, in addition to the names of State can- 
 vassers signing Reed's; and last, the paper presented by Hoge bears to the left of the official signatures 
 of the canvassers the words "Robert K. Scott, governor of South Carolina." 
 
 Before considering the "statement" let us refer to each of these points of difference in the certifi- 
 cates. The requirement of the law of South Carolina (sec. 38) upon the canvassers is, "shall determine 
 and declare what persons have been, by the greatest number of votes, duly elected." Reed's paper 
 says, "have been duly elected by a majority of votes." Hoge's says, "have received a majority of legal 
 votes." In \-iew of the requirements of this section. Reed's paper is a strict compliance with the statute; 
 Hoge's a departure from the text and lack of compliance with its terms. As to the next point of differ- 
 ence in the fact that the attorney-general signs Hoge's paper and not Reed's, either paper is in that 
 regard a compliance with the law (sec. 35), for by it any three of the canvassers constitute a board. And 
 last, as to the name of Governor Scott appearing on the left of Hoge's paper, as no section of the law 
 requires him to execute or attest such a paper, it is of no effect on the one, nor is its lack in any degree 
 significant in the other. These are all the differences on the faces of the papers so far. Hoge presents 
 no commission by the governor, which Reed does. Hoge shows no published certificate of the result in 
 his favor, as required by section 43, while Reed shows strict compliance with that section. 
 
 The minority go on to cite facts which they declare prove that Hoge's certificate 
 of election was made long subsequent to the day appearing on its face as the true 
 date, and thus was impeached. 
 
 The minority also show that the "statement" of the canvassers (a document 
 declaring widespread intimidation in the district whereby enough voters to have 
 elected Mr. Hoge were deterred from voting) in its opening sentence admitted that 
 the canvassers had "felt compelled to declare upon prima facie evidence" that J. P. 
 Reed had been elected. 
 
 Laying stress on the fact that the "statement" bore no date, the minority say: 
 
 But, in addition, even if a public officer or a board of officers may annul an official act and, by 
 subsequent determination, move in a different direction, there must of course be a period of time, or a 
 point in the series of acta dependent upon each other, beyond which no such discretionary power could 
 be exercised. As to time, let it be remembered they commenced their work as a board as early as 
 December 1, for that is the date of their first official paper. How long, then, may they continue to 
 act; or, in other words, what is their official term? Section 40 says: 
 
 "The board shall have the power to adjourn from day to day, for a term not exceeding five days." 
 
 Then, measured by time, all their official acts must be performed within the term of five days. 
 
 But as to power, regardless of time, we deem the true rule to be that when an official act is in itself 
 
 completed, and other subsequent official acts of the same or other officer have been based upon such 
 
 completed act, it may not be retracted. 
 
 Therefore the minority hold that as the affair has proceeded as far as the issue 
 of a certificate by the governor, it was too late for the board to recant. 
 The minority conclude : 
 
 But this statement of the canvassers not only does not assert prima facie right in Hoge, but 
 expressly states that he received a minority of the votes, for in it they base Hoge's ultimate right on
 
 808 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 620 
 
 Reed's ineli" ibility. They do not reverse the final decision as to the prima facie case, but admit and 
 affirm it, declaring, however, their view of final rights or merits as follows: 
 
 "The board of State canvassers, while not deeming themselves competent to give final judgment 
 upon the question herein involved, do submit that if such disqualification in fact exists, then the 
 election of the said Reed is wholly illegal and void; and that in consequence thereof, S. L. Hoge, who 
 received the next highest number of votes, is lawfully entitled to the seat as Representative of the 
 Third Congressional district aforesaid." 
 
 S. L. Hoge, they say, "received the next highest number of votes." Next to whom? J. P. Reed; 
 and "if Reed is disqualified, then his election is illegal and void;" and, in their judgment, as a result 
 "in consequence thereof, S. L. Hoge, who received the next highest number of votes," ought to be 
 admitted. Suppose Reed were not disqualified? Then his election would not be illegal and void, 
 and Hoge would have no claim, prima facie or otherwise, to a seat here. Now, if the House is ready 
 to adopt this theory, that the disqualification of Reed elects Hoge by a majority vote, so let it be. In 
 so doing it will reverse its own decision in the preceding Congresses, admit its error in the case of Brown 
 
 and , from Kentucky, in the last Congress, place majorities in control of minorities, ' and in advance 
 
 sanction party intrigue and official misconduct in suppressing the popular will. 
 
 For reasons imperfectly given above we dissent from the majority and offer as a substitute for 
 their resolution the following: 
 
 Resolved, That J. P. Reed is not entitled, under resolution of March, 1869, to a seat from the Third 
 district of South Carolina, by reason of ineligibility, and that S. L. Hoge is not entitled to such seat, 
 because he was not "by the greatest number of votes duly elected" by the people of that district. 
 
 On April 8,^ after little debate, the rules were suspended and the resolution 
 of the majority was agreed to — yeas 101, nays 39. 
 
 Mr. Hoge thereupon took the oath. 
 
 The same state of facts shown in the above case was also developed in the 
 case from the Fourth district of South Carolina, Wallace v. Simpson.^ The report, 
 submitted by Mr. Samuel S. Burdett, of Missouri, discussed the principle involved 
 at greater length than in the case of Hoge v. Reed. The report says: 
 
 The possession of a certificate of election does not give, create, or add to the right of representing 
 a constituency. It is merely evidence of a fact; it does not make the fact. If, in fact, false in its 
 recitals, as one and all of its signers declare the Simpson certificate to be, it can not create by such a 
 false recital a state of case which exists only in recitals. The anticipated objections, that the board of 
 canvassers, exercising ministerial functions only, could have no right to do any act save to count the 
 returns laid before them and certify that count without question, is sufficiently answered by the case 
 of Butler v. Lehman (Contested Cases in Congress, p. 353), and in the case of Morton v. Daily, page 403, 
 in both of which cases the certifying officer did go behind the returns furnished him and declared a 
 different result from that appearing on the face of the returns, and in both cases the House sustained 
 the action of the officer. The last-cited case is also clearly decisive of the question of the right of certi- 
 fying officers to reverse their action, even after the fact accomplished. In that case the governor of 
 Nebraska had issued his certificate to Morton, and, after the lapse of considerable time, on the discovery 
 of apparent fraud, revoked it and gave a second to Daily, and the House sustained his action by seating 
 Daily. 
 
 Nor is such action to be looked on as exceptional, or dependent on the particular circumstances 
 of cited cases. On the contrary, the principle on which this action is based is in itself most wise, nec- 
 
 ' This is the wording as printed in the report. The language is susceptible of two meanings; but 
 the intention was evidently to express the idea that majorities would be placed under the control of 
 minorities. 
 
 2 Journal, pp. 194, 195; Globe, p. 631. 
 
 3 House Report No. 7; 2 Bartlett, p. 552; Rowell's Digest, p. 235.
 
 § 621 CONFLICTING CREDENTIALS. 809 
 
 essary, and salutary, and the reason is well expressed in the views of the committee in the case of Val- 
 landigham r. Campbell (Contested Election Cases, p. 230\ in the following language: 
 
 "Neither the committee nor the House is bound by these rules (the usual rules and principles 
 of evidence 'i in their letter and strictness, but should proceed upon more liberal principles in the inves- 
 tigation of truth.'' — Et seq., and cases cited to page 231. 
 
 The objection that justice, clearly demanded by every possible consideration of fair dealing, shall 
 not be done, or shall be delayed, because of the omission, or technical error, or hasty and mistaken 
 action of some intermediate official personage, or because the just end to be reached leads across the 
 line of "nisi prius" practice, or precedent, can not stand. That equity might be done, and done in 
 spite of the strict rules of law, courts of chancery were established, that through them righteous con- 
 clusions might be reached for the conclusions' sake. By the Constitution, in all matters pertaining to 
 the election, returns, and qualifications of its Members, the House is made "'a law unto itself," and has 
 no other rule forced upon it for the determination of these questions than the sanction of the oath of its 
 Members, and that due regard for the rights of constituencies which the representatives of constitu- 
 encies, from the nature of their own duties and relations, must have and feel. Not that the technical 
 rules of the law applicable to evidence and weight of evidence, the duties of officers, etc., may not be 
 called in to aid in the proper investigation of a case, but that when called in they shall not be r^arded 
 as greater than the rights to be affected by their application. 
 
 The case of Wallace v. Simpson on this prima facie question was debated fully 
 on January 25,' at the next session of Congress. Mr. Samuel J. Randall, of Penn- 
 sylvania, alleged that the secretary of state of South Carolina was ready to appear 
 and testify that the certificates to Hoge and Wallace had been issued informally 
 at a date later than the five days' limit. It was replied that even if this were so 
 the official certificate of the secretary of state to the direct contrary was on file. 
 The report was fully considered in other aspects. The majority had proposed a 
 resolution declaring Mr. Wallace prima facie entitled to the seat. 
 
 Mr. Randall moved as a substitute therefor the following: 
 
 That W. D. Simpson is not entitled, under resolution of March, 1869, to a seat from the Fourth dis- 
 trict of South Carolina, by reason of ineligibility; and that A. S. Wallace is not entitled to such seal 
 because he was not "by the greatest number of votes duly elected " by the people of that district. 
 
 This substitute amendment was agreed to, yeas 102, nays 73.^ 
 
 The question recurring on the proposition of the majority as amended bj' the 
 substitute, Mr. Rantlall expressed the desire to modify his substitute so that it 
 would bear only upon the prima facie case. He said that his proposition as adopted 
 went further than he had intended. 
 
 Objection being made to the modification, a motion to lay the whole proposition 
 on the table was then agreed to without division. 
 
 Then a resolution was agreed to — ayes 63, noes 46 — referring the claims of both 
 Messrs. Simpson and Wallace to a committee to be examined as to the merits of the 
 case. 
 
 621. The election cases of Hoge, Reed, and others, continued. 
 
 Form of resolution authorizing notice of contest and taking of testi- 
 mony in case of a claimant whose opponent had been eliminated by 
 reason of disqualifications. 
 
 ' Second session Forty-first Congress, Globe, pp. 742-752. 
 2 Journal, pp. 201-204.
 
 810 PKECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 621 
 
 The candidate having the largest number of votes being notoriously- 
 disqualified, the House declined to seat the candidate having the next 
 highest number of votes. 
 
 On January 28, 1870,' the committee reported that Mr. Simpson was unable to 
 take the oath required by the act of July 2, 1862, and the House discharged the 
 committee from consideration of the case so far as it related to Mr. Simpson. 
 
 On February 10 ' the House, on report from the Conmaittee on Elections, agreed 
 to the following resolution : 
 
 Resolved, That in the case of A. S. Wallace i). W. D. Simpson, the time for taking testimony be 
 extended for forty days from and after the passage of this resolution. Notice shall be given by either 
 party wishing to take testimony, to the opposite party, according to law, ten days before commencing the 
 same. Either party may examine witnesses before any judge, notary public, or other officer authorized 
 to take depositions under the laws of the United States or of the State of South Carolina, at the city 
 of Columbia. Testimony taken by said Wallace shall be confined to evidence tending to establish his 
 claim to the seat; and testimony taken by said Simpson shall be confined to evidence relating to said 
 claim of said Wallace. 
 
 On May 18, 1870,' the committee having the case in charge — Messrs. John 
 Cessna, of Pennsylvania; Eugene Hale, of Maine; and Samuel J. Randall, of Penn- 
 sylvania — submitted the report on the merits of the case. As presented in this 
 report the case divides itself naturally into three branches. 
 
 1. The question arose as to whether or not, the candidate having a majority 
 on the face of the returns being disqualified, the candidate being returned with the 
 next highest vote should be seated. Mr. Cessna submitted in the report an argument 
 that the minority candidate should be seated ; but it was expressly stated in the 
 debate * that neither Mr. Hale nor Mr. Randall concurred in this view. Also, Mr. 
 Henry L. Dawes, of Massachusetts, protested against including this as one of the 
 grounds, and Mr. Halbert E. Paine, of Wisconsin, chairman of the Committee on 
 Elections concurred in this view. Mr. Albert G. Burr, of Illinois, submitted an 
 elaborate argument to show that Mr. Cessna's view was not sustained even by 
 English precedents." 
 
 Mr. Cessna, in his report, admitted that there was no precedent in American 
 history, but contended that the case was unique and that English precedents would 
 justify the view for which he contended. He contended that as a question of pubUc 
 policy his view was abundantly justified, since in this case the disqualification was 
 well known and the electors by their act fell under the English rule of "willful 
 obstinacy and misconduct." Mr. Cessna says: 
 
 Was Mr. Simpson, who claims to have received a majority of the votes in this district, ineligible 
 at the time he was voted for; and did those who cast their votes for him know the fact? The third 
 section of the fourteenth amendment to the Constitution of the United States provides that "no person 
 shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold 
 any office, civil or military, under the United States, or under any State, who, having previously taken 
 an oath as a Member of Congress or as an officer of the United States, or as a member of any State legis- 
 
 ' Globe, p. 854; Journal, p. 223, House Report No. 17. 
 ^Journal, p. 295. 
 
 'House Report No. 71; 2 Bartlett, p. 731; Rowell's Digest, p. 244. 
 * Globe, pp. 3863-3866.
 
 § 622 CONFLICTING CREDENTIALS. 811 
 
 lature, or as an executive or judicial officer of any State, to support the Constitution of the United 
 States, shall have engaged in insurrection or rebellion against the same, or given aid and comfort to the 
 enemies thereof." Mr. Simpson admits, in his answer to the notice of contestant, that he "was a mem- 
 ber of the general assembly of South Carolina in the years 1858, 1859, and 1860; that he took the oath 
 as such to support the Constitution of the United States; that he voted for the call of the convention 
 which passed the ordinance of secession; that he entered the Confederate army and served as major and 
 lieutenant-colonel until the close of the year 1863, when he was elected to the Confederate congress, 
 and that he continued a member of said congress until the close of the war; that he has engaged in open 
 war against the United States, and as a member of the confederate Congress he did all he could in an 
 honorable way to advance the cause in which he was engaged." 
 
 The electors in this district were, therefore, thoroughly informed of the ineligibility of Mr. Simpson 
 at the time they voted for him. It is perfectly clear that they had actual notice of his ineligibility. 
 But even without the actual notice to individual voters, they are equally bound, under a state of facts 
 such as here presented. They are presumed to have known of the disqualifying article of the Consti- 
 tution of the United States. They are presumed to have known that he had been a member of the gen- 
 eral assembly of South Carolina. They are presumed to have known that he took an oath to support 
 the Constitution of the United States as said member. They are presumed to have known that he was 
 a member of the Confederate congress. These are presumptions of law, and charge these electors with 
 constructive notice. 
 
 "WTien the ineligibility of a candidate arises from his holding or having held a public office, the 
 people within the jurisdiction of such office are held in law to know, and are chargeable with notice of 
 such ineligibility." (Vide Grant on Corporations, p. 109.) 
 
 In this instance there was actual as well as constructive notice of the disqualification of Mr. Simp- 
 son. All the witnesses that have been examined state that it was well known throughout the district, 
 and the prominence of Mr. Simpson renders it very certain that this was the case. This case is distin- 
 guishable from the case of Smith v. John Young Brown, in the Fortieth Congress, from the fact that in 
 that case the disqualification was doubtful, and there was no evidence that the electors knew of the 
 disqualification. He had not served in the Confederate army; he had held no office under the consti- 
 tution of the Confederacy that could charge those who voted for him with constructive notice; neither 
 were the acts of disloyalty alleged against him of a character so notorious as to raise a presumption of 
 knowledge upon the part of the electors of the district. 
 
 It is conceded that in cases heretofore decided by the House the doctrine here maintained has not 
 prevailed; but it is confidently believed that in none of them was the notoriety of ineligibility raised, 
 considered, or decided. 
 
 622. The election case of Hoge, Reed, and others, continued. 
 
 Six of the nine counties of a district being terrorized, the committee, 
 in a sustained report, held that the three peaceful counties, casting less 
 than half the returned vote, should determine the result. 
 
 A question as to whether an estimate of persons kept from the polls 
 by a conspiracy to intimidate should have weight in determining the 
 result. 
 
 When the House votes to admit a Member and the motion to recon- 
 sider is disposed of, the right to be sworn is complete and not to be de- 
 ferred, even by a motion to adjourn. 
 
 An elections committee having reported as to one feature of a contest, 
 the House discharged the committee from further consideration of that 
 portion of the case. 
 
 (2) The registered vote of the entire district was 33,147, of which 23,905 votes 
 were cast. The official returns gave 14,098 votes to Simpson and 9,807 to Wallace. 
 The committee present testimony showing widespread and systematic terrorism in
 
 812 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 622 
 
 six of the nine counties. Out of the total district vote of 23,905 the six counties 
 returned 14,553, divided as follows: Simpson 9,933, Wallace 4,620. The three 
 peaceful comities returned a total of 9,352, divided as follows: Simpson 4,165, Wal- 
 lace 5,187. 
 
 The committee show by the vote in prior elections that some cause produced 
 the phenomenon of a surprising reduction in the vote of the party to which Mr. 
 Wallace belonged. 
 
 The committee say: 
 
 But your committee is satisfied that the elections held in these six counties were mere farces, and 
 are entitled to no consideration as the expressed will of the people; that under no precedent or any 
 principle of law or justice could these elections be considered valid. In the case of Harrison v. Davis 
 (Contested Election Cases, vol. 2), which is probably the leading case upon the question, it is ruled 
 "that if so many individuals were excluded by violence and intimidations as woidd, if allowed to vote, 
 have given the contestant the majority, this would have been in law decisive of the case." This doc- 
 trine is conceded in the minority report in the recent case of Hunt v. Sheldon. But if we had no prece- 
 dent, the committee would not hesitate to decide that where there was such violence and bloodshed as 
 would intimidate men of ordinary firmness, and where a sufficient number of voters to have changed 
 the result were kept from the polls by reason of this intimidation, it would be as fatal to the poll as if 
 the election board had been controlled by intimidations. In the recent cases acted on by the House, 
 from Louisiana, it was contended that there was no violence used at the polls, and therefore there was 
 no actual obstruction to a fair election. In this instance, according to the evidence, there was a con- 
 spiracy to prevent a free election. Mr. Simpson and his friends had organized secret political clubs in 
 all of those counties, with the avowed design of preventing Republicans from voting. They had pro- 
 cured an abundant supply of firearms, and were ready to make any use of them that the success of their 
 purpose required. Their murders and threats before the election had so far done their work that their 
 appearance at the polls fully armed and equipped was sufficient to intimidate Republican voters, both 
 white and black, who had so recently witnessed the outrages practiced by these desperate men. At 
 most of the polls there was violence used just in proportion to the firmness and determination mani- 
 fested by the Republican voters. In counties where there were but few white Republicans the Ku-Klux, 
 by traversing the counties for several nights before the election, beating the freedmen, shooting into 
 their houses, and leaving coffins at their doors, so completely terrified them that it required but little 
 effort on the day of election to drive them from the polls. 
 
 Did this violence and intimidation deter a sufficient number of voters from voting who, if they 
 had voted, would have elected the contestant? We are clearly of opinion that it did. We think, too, 
 that by the evidence it is fully established that a fair election in these six counties would have largely 
 increased the majority for Mr. Wallace in the district. 
 
 The committee further say, in view of the fact that the three peaceful counties 
 cast only 9,352 out of the 23,905 votes returned in the district: 
 
 It is sometimes urged that in cases where a fair election has been prevented by fraud and violence 
 only in a part of a district the whole election should be set aside and a new one ordered. When a por- 
 tion of the people of any district, in a peaceable and orderly manner, and in strict compliance with 
 all tlie forms of law, manifest their will at the Ijallot box, we can see no good reason why that will should 
 be disregarded on the ground that there were other people in the district who did not choose to obey 
 the law, nor submit to its requirements. It will be conceded that if 30,000 of the voters of this district 
 had decided to stay at home on the election day, and the other 3,000 had gone to the polls and voted, 
 their choice would have been the legal choice of the whole district. And it would have made no 
 difference whether the entire 3,000 persons wlio voted lived in one county or in two counties, or in the 
 whole nine counties of the district. We can see no difference Isetween such a case and the one now 
 being considered.
 
 § 623 CONFLICTING CREDENTIALS. 813 
 
 No minority views were presented. Mr. Randall said in debate: 
 
 I here express my dissent from the conclusions of the majority of the committee, while, at the 
 same time, I am free to say that this is the strongest case of intimidation which, so far as my knowledge 
 extends, has been presented to this Congress.' 
 
 (3) In the report it was further contended that in the six counties a large num- 
 ber of persons who would have supported ilr. Wallace wore kept from the polls 
 by intimidation, and that this class would have aggregated in the six counties a 
 total of 5,700 votes, enough to have elected Mr. Wallace mthout rejecting the 
 entire returns of those counties. 
 
 In the debate Mr. Henry L. Dawes, of Massachusetts, said he understood by 
 this class to be meant only — 
 
 that persons who have come up to the polls and were ready to vote, who they can detei-mine by evi- 
 dence had a right to vote, were excluded. Upon that consideration * * * i should not find any 
 fault; but on the broad phraseology of the report it is in opposition to the uniform decisions of this 
 House, coming down from the Michigan case nearly thirty years ago. 
 
 Mr. Dawes hoped therefore that this feature of the case would be eliminated 
 and not made a precedent. 
 
 The resolution declaring Mr. Wallace "duly elected" and entitled to the seat 
 was agreed to without division;^ but tliis hardly shows the actual feeling of the 
 House, since the vote was taken very soon after the reading of the Journal when 
 the House was thin. The debate occurred after this vote, and dissatisfaction 
 was expressed with the action, and a protest was made against swearing in Mr. 
 Wallace. 
 
 But the Speaker * held: = 
 
 When the House has voted to admit a Member, the record of the legislative action is not complete 
 until a motion to reconsider has been made and that motion laid on the table. When the action of 
 the House has thus been consummated, the right of the Member to be sworn in is complete, and it is a 
 right which the Chair is compelled to insist upon against any motion whatever. Under such circum- 
 stances the Chair would not entertain even a motion to adjourn. 
 
 Mr. Wallace was sworn in. 
 
 623. The Louisiana election cases of Sheridan v. Pinchback and Law- 
 rence V. Sypher in the Forty-third Congress. 
 
 There being conflicting credentials, issued by different occupants of 
 the gubernatorial chair, the Clerk enrolled neither claimant. 
 
 Credentials regular in form, and issued in accordance with law, were 
 honored by the House, although it appeared that the governor issuing 
 them might be merely a de facto oflB.cer. 
 
 Although apparently satisfied as to prima facie right, the House did 
 not seat an indifferent claimant who had also filed credentials as a Sen- 
 ator-elect. 
 
 ■ Globe, p. 3863. 
 
 -Globe, p. 3864. 
 
 'Journal, p. 864; Globe, pp. 3862, 3863. 
 
 'James G. Blaine, of Maine, Speaker. 
 
 » Globe, p. 3863.
 
 814 PRECEDENTS OP THE HOUSE OF REPRESENTATIVES. § 623 
 
 The House declined to honor credentials regular in form, but issued in 
 disregard of a State law requiring them to be issued after and not before 
 the canvassing officers had made returns. 
 
 In determining prima facie right the House may take cognizance of 
 public statutes, proclamations made by public officials under the law, and 
 matters of history. 
 
 A pending single resolution providing for seating several claimants, 
 the Speaker ruled that the vote might be taken separately as to each 
 claimant. 
 
 A division being demanded on a resolution for seating several claim- 
 ants, the oath may be administered to each as soon as his case is decided. 
 
 On December 1, 1873/ at the organization of the House, the Clerk announced 
 that from the State of Louisiana there were unchallenged certificates only from the 
 Third and Fifth districts, therefore he had enrolled only the members-elect from 
 those districts. 
 
 On December 2,- after the House had organized, Mr. Benjamin F. Butler, of 
 Massachusetts, submitted the following: 
 
 Resolved, That J. H. Sypher, of the First district, L. A. Sheldon, of the Second district of Louisi- 
 ana, and P. B. S. Pinchback, a Representative at largo of the same State, having the prima facie evi- 
 dence of right to seats in this House, be admitted to take the oath of office, respectively. 
 
 The credentials in all these cases involved substantially the same question. 
 The election had been held on the first Tuesday of November, 1872. The law of 
 Louisiana provided that the returning officers of election should make their returns 
 within ten days, and that "as soon as possible after the expiration of the time of 
 making the returns" a certificate of the returns should be "entered on record by the 
 secretary of state and signed by the governor," and copies be given to the Members- 
 elect and also transmitted to the Clerk of the House of Representatives. 
 
 A certificate from the secretary of state of Louisiana (presented by the Clerk 
 of the House with the credentials on the day of organization), showed that no record 
 of the election was entered mitil the 16th of December, and that the record was 
 officially promulgated on the 17 th of December. 
 
 But before the entry of this record the governor of Louisiana had given cer- 
 tificates like the following: 
 
 State of Louisiana, Executive Department, 
 
 New Orleans, December 4, 1872. 
 
 This is to certify that at a general election held in this State on the 4th day of November, A. D. 
 1872, George A. Sheridan received 64,016 votes, and P. B. S. Pinchback received 54,402 votes. 
 
 1 therefore hereby declare George A. Sheridan duly elected to represent the State of Louisiana as 
 Congressman at large in the Forty-third Congress of the United States. 
 
 Given under my hand and the seal of the State this 4th day of December, A. D. 1872, and of the 
 
 independence of the United States the ninety-seventh. 
 
 H. C. Warmoth, 
 
 Governor of Louisiana. 
 Jack Warton, 
 
 Secretary of State. 
 
 ' First session Forty-third Congress, Record, p. 5. 
 ' Record, pp. 19-28, 34; Journal, pp. 17, 19, 39.
 
 I 623 CONFLICTING CREDENTIALS. 815 
 
 On December 8, after the above certificate had been issued but before the 
 record of the election was entered, a legislature met, impeached Governor Warmoth 
 and on December 9 suspended him, Lieutenant-Governor Pinchback becoming 
 acting governor. 
 
 After this event, the following certificate was issued: 
 
 State of Louisiana, Executive Department, 
 
 New Orleans, December SO, 1872. 
 Be it known that, at an election begun and held on the 4th day of November, A. D. 1872, for 
 Member of Congress, Pinckney B. S. Pinchback received 68,947 votes, and George A. Sheridan received 
 58,700 votes. 
 
 Now, therefore, I, P. B. S. Pinchback, acting governor of the State of Louisiana, do hereby certify 
 that Pinckney B. S. Pinchback received a majority of the votes cast at said election, is duly and law- 
 fully elected to represent the State at large. State of Louisiana, in the Forty-third Congress of the United 
 States. 
 
 Given under my hand and the seal of State this 30th day of December, A. D. 1872, and of the 
 independence of the United States the ninety-seventh. 
 
 P. B. S. Pinchback. 
 By the acting governor: 
 
 E. B. Mentz, Assistant Secretary of State. 
 
 Mr. Butler admitted the priority of the Warmoth certificates and its correct- 
 ness in form, but insisted that it was impeached by the record as presented. The 
 Pinchback certificate he maintained was also correct in form, and against it no 
 record evidence could be produced.^ 
 
 In opposition to this view it was argued ' that the Warmoth certificate was 
 prior in time, that it was regular on its face, and in the identical form used in the 
 preceding Congress. If it was proposed to go outside this piece of paper, then it 
 should be noticed that Pinchback's title to the position of lieutenant-governor was 
 questioned; that the impeachment of Warmoth was charged to be illegal; that the 
 returns were in dispute, several returning boards claiming authority; that there 
 had been two legislatures and two State governments, etc . 
 
 In support of the Pinchback credentials it was urged that questions as to the 
 authority of the lieutenant-governor, governor de facto, and as to the returns and 
 returning boards, belonged to the merits of the case and not to the prima facie case; 
 but as part of the prima facie case the House had the right to take cognizance of 
 public statutes, proclamations made by public ofiicials imder the law, and of matters 
 of history. 
 
 The resolution proposed by Mr. Butler coming to a vote, the Speaker ^ held that 
 the case of each person mentioned therein might be put separately. 
 
 Thereupon the question was taken on the proposition to admit Mr. J. H. Sypher 
 to a seat, and it was agreed to, yeas 167, nays 98. 
 
 Also the proposition to admit Mr. Sheldon was agreed to. 
 
 The question recurring on the proposition to admit Mr. Pinchback, Mr. Butler, 
 as a question of privilege, presented Messrs. Sypher and Sheldon to be sworn in. 
 
 ' Record, p. 20. 
 
 ^ Especially by Mr. Clarkson N. Potter, of New York; Record, p. 25. 
 
 ^ James G. Blaine, of Maine, Speaker.
 
 81(3 
 
 PRECEDENTS OF THE HOUSE OF KEPRESENTATIVES. 
 
 §624 
 
 The Speaker said: 
 
 The Chair feels it to be his duty at once to administer the oath to the two Members whose prima 
 facie right to their seats has just been declared. They are just as much entitled to vote on any question 
 before the House as any other Member on the floor. 
 
 On December 3 the question recurred on admitting Mr. Pinchback to a scat, 
 when, on motion of Mr. Butler, that portion of the proposition was laid on the table. 
 It appeared that Mr. Pinchback did not wish a decision, perhaps because he had also 
 presented credentials as a Senator-elect. 
 
 On December 3' the credentials of Messrs. Pinchback, Sheridan, Lawrence, and 
 Davidson, all claimants to seats from Louisiana, were referred to the Committee on 
 Elections with instructions to report as early as might be. 
 
 624. The election cases of Sheridan, Sypher, and others, continued. 
 
 In a case where neither claimant was seated on prima facie showing 
 the House investigated and determined the contest, although one claimant 
 defaulted in answering notice of contest. 
 
 Although a State returning board had been declared the legal one by 
 the State supreme court, the House disregarded its canvass, the fact being 
 notorious that it never had possession of the returns. 
 
 In determining final right to a seat the House has considered as evi- 
 dence testimony embodied in a Senate report of the preceding Congress 
 relating generally to the election in question. 
 
 The House has authorized a contestant to take ex parte evidence in 
 case an indifferent opponent should neglect to answer notice of contest. 
 
 The House, in case there shall be necessity, authorizes a contestant 
 to serve an amended notice of contest. 
 
 On May 19, 1874,^ Mr. H. Boardman Smith, of New York, presented the report 
 of the majority of the committee in the case of Sheridan v. Pinchback. 
 
 The report presents an additional certificate issued to Mr. Pinchback by "Wm. 
 P. Kellogg, governor of Louisiana," under date of March 11, 1874, and intended to 
 set at rest doubts that had ' ' arisen as to the validity of the credentials of Hon. P. B. S. 
 Pinchback." This certificate declared Mr. Pinchback "duly elected by a majority 
 of the votes cast." 
 
 The two certificates constituted the whole of Mr. Pinchback's case as presented 
 to the committee, excepting a report and an affidavit presented in rebuttal, and not 
 objected to by Mr. Sheridan. 
 
 Mr. Sheridan in seasonable time served on Mr. Pinchback a notice of contest, as 
 follows: 
 
 New Orleans, La., December 30, 1873. 
 Hon. P. B. S. Pinchback: 
 
 I hereby notify you that I shall contest your claim or right to a seat as Congressman at large from the 
 State of Louisiana to the Forty-third Congress for the following reasons: 
 
 First. The board which declared you elected was not a legal board. 
 
 Second. It was not in possession of the returns of the election of November, 1872, and could not, 
 therefore, legally declare you elected. 
 
 'Journal, p. 42; Record, p. 49. 
 
 * House Report No. 597; Smith, p. 196.
 
 § 624 COKFLICTING CEEDENTIALS. 817 
 
 Third. The lawful returns of the election of November, 1872, show my election as Congressman at 
 large by a majority of more than 10,000 votes. 
 
 Very respectfully, Geo. A. Sheridan. 
 
 To this notice Mr. Pinchback made no answer. 
 
 The only testimony presented by Mr. Sheridan consisted of certain testimony 
 taken by the Committee on Privileges and Elections of the United States Senate. 
 A question arose as to the competency of this evidence. The majority of the Com- 
 mittee say: 
 
 This volume, which Mr. Sheridan offers in evidence, is Senate Report No. 457, third session Forty- 
 second Congress. 
 
 Neither Mr. Pinchback nor Mr. Sheridan was directly a party to the controversy which was pend- 
 ing in the Senate and in which this investigation was had. Nor was the question as to which of them 
 had been elected Representative at large from the State of Louisiana directly or indirectly before the 
 Senate committee. 
 
 Your committee receive the President's message to the last Congress on Louisiana affairs, and the 
 report and accompanying exhibits of the chief superv'isors of elections in that State; they also receive this 
 volume of testimony taken by the Senate committee, " for consideration of the nature and degree" of the 
 evidence it contains and ' of the subject-matter to which the evidence is to be applied," or, in the phrase 
 of courts, "for what it is worth." 
 
 There is not a precinct or parish return in the entire volume, nor is there parol testimony of the 
 vote which either claimant received. Your committee are satisfied, however, that it comprises correct 
 copies of the returns made by the returning boards known as the Lynch and Foreman boards. 
 
 In support of this decision the committee cite sections 111, 143, 210, 742, 745, 
 747-749 of Cushing's Law and Practice of Legislative Assembhes. 
 
 The minority views, presented by Mr. L. Q. C. Lamar, of Mississippi, concurs 
 that this was admissible testimony: 
 
 The volume from which we have quoted was admitted and considered by the committee as evi- 
 dence relating to the rights of the parties in this contest. It is a public document, containing a record 
 of facts and testimony obtained in a proceeding ordered by the Senate, in which Mr. Pinchback was 
 in effect a party, as his seat in the Senate depended upon the result. We consider it not only as admis- 
 sible evidence, but abundantly sufBcient to determine the rights of the parties to this contest. 
 
 As applicable to this question, we cite the following authorities: 
 
 Mr. Greenleaf, in his work on Evidence, volume 1, section 491, speaking of the admissibility and 
 effect of public ducuments as instruments of evidence, says: 
 
 "To render such documents, when properly authenticated, admissible as evidence, their contents 
 must be pertinent to the issue; it is also necessary that the document be made by the person whose 
 duty it was to make it, and that the matter it contains be such as belonged to his province, or cases 
 within his cognizance and observation. Documents having these requisites are in general admissible 
 to prove, either prima facie or conclusively, the facts they recite." 
 
 "Public Statutes," "Public Proclamations," "Legislative Resolutions," "Journals of either 
 House," "Diplomatic Correspondence," " Official Gazette" are mentioned by this author as documents 
 admissible as evidence of the facts which they recite, even in courts cf justice; liut a broad distinction 
 exists, as is well recognized by the writers upon public law, between the evidence admissible before 
 judicial tribunals and that on which legislative bodies act. 
 
 The minority further quote from Lewis's Methods and Reasonings in Politics, 
 especially wherein it is stated that "the process of ascertaining facts for legislative 
 purposes is not, in general, so formal, or subject to such strict rules of evidence as 
 the procedure of executive departments, whether administrative or judicial," etc. 
 5994— VOL 1—07 52
 
 818 PBECEDENTS OF THE HOUSE OF REPRESENTATIVES, § 624 
 
 The debate in the House ' explained more fully than the report the facts out 
 of which the controversy arose. The election law of 1870, under which the election 
 in question was held, provided that the returns from the several counties should 
 be canvassed by the State returning board. 
 
 Before the returns of the election in question (that of 1872) had been canvassed 
 there arose factional differences which caused a split in the returning board, one 
 portion of the board acting by itself and being called the Wharton board. The 
 other portion of the board was called the Lynch board. The L3mch board was 
 sustained by the supreme court of the State as the legal board. 
 
 There having been intervention by the Federal court (Judge Durell) in support 
 of the Lynch board. Governor Warmouth, on November 20 (after the election had 
 been held on the first Tuesday of the month), signed a new election law passed in 
 the spring of the year and until then not approved. He did this "to escape the 
 clutch of Judge Durell." Lender this new law he appointed a returning board 
 called the De Feriet board. 
 
 Later, on December 1 1 , the McEnery senate (one of the rival legislative bodies) 
 appointed a returning board called the Foreman board. 
 
 Thus there were four returning boards, two of them created under an election 
 law not in force when the election was held. 
 
 The supreme court of the State had sustained the Lynch board, and the chair- 
 man of the Committee on Elections insisted strongly in debate that the construction 
 given V)y a local court should be conclusive on the House. 
 
 The minority views give an explanation of the situation as follows: 
 
 We repeat that it is proven that the election was held in strict conformity with these provisions, 
 and that the governor came into the lawful possession of all the ofBcial returns of that election. At 
 this point the contest arose over the question as to who constituted the legal returning board of the 
 State — the one called the Lynch board, or the other, the Warmoth board. Pending that contest, the 
 governor, on the 20th of November, 1872, approved an act passed at the preceding session of the legis- 
 lature of the State, repealing the act under which the two rival boards were contesting for the returns, 
 and providing "that five persons, to be elected by the senate from all political parties, shall be the 
 returning officers," etc. On the same day he issued a proclamation calling a session of the legislature. 
 
 This last-named statute abolished the existing board, and therefore makes it unnecessary here 
 to discuss which of the two was the legal one. 
 
 Under the authority vested in him by the constitution of Louisiana to fill vacancies during the 
 vacation of the legislature, the governor proceeded to fill the board provided for by the act approved 
 November 20, 1872, appointing De Feriet and others, known as the "De Feriet board." On the 4th 
 of December the governor submitted the official returns (of which he had retained the custody). That 
 board, on the 4th of December, made the compilation and canvass, declaring McEnery and the candi- 
 dates on the same ticket elected by 9,000 majority, and declaring, also, who had been elected members 
 of the legislature; which result was proclaimed by the governor and certified to by the secretary of state, 
 in pursuance of the election law of Louisiana. 
 
 In consequence of the seizure of the State capitol of Louisiana by a Federal marshal and United 
 States soldiers, in obedience to an order of a Federal district judge, the members and senators returned 
 by the De Feriet board met at the city hall in New Orleans, and on the 9th day of December organized 
 as a legislature, and was so recognized by the governor. On the llth of December the senate elected 
 a board of returning officers, known as the Foreman board. To this board the ofBcial returns were 
 delivered by the secretary of the De Feriet board. This board immediately proceeded to the canvass 
 
 ' See speech of Mr. Smith, chairman of Elections Committee, Appendix of Record, p. 422.
 
 § 624 CONFLICTING CREDENTIALS. 819 
 
 and compnation of these official returns, and made an official report of the result in due form, as required 
 by law. These compiled returns were submitted to the Senate Committee on Privileges and Elections 
 during their investigation into the facts of the election now under consideration. The original returns 
 were also before that committee, and unimpeached by the parties contesting the results, except a state- 
 ment by John Ray that in four parishes the names of the commissioners were forged, which fact, if it 
 be a fact, was admitted not to have changed the result. 
 
 With the state of facts as thus set forth, the next questions arising relate to 
 the cases of the two claimants. 
 
 (1) As to the claim of Mr. Pinchback. The majority of the committee state 
 first that to Mr. Sheridan's notice of contest no answer was made by Mr. Pinchback, 
 and continues: 
 
 Is Mr. Pinchback shown entitled upon the merits to this seat? 
 
 Your committee think not. Mr. Pinchback's original certificate, it was conceded, and Governor 
 Kellogg's supplemental certificate, it is to be assumed, were issued upon the pretended canvass by the 
 returning board known as the "Lynch board." Assuming that the Lynch board was the legal returning 
 board, and waiving the consideration of the effect of Mr. Pinchback's default in making no response 
 to Mr. Sheridan's notice of contest, your committee are of opinion that the fact that the Lynch 
 board never had possession of the election returns, and therefore never canvassed them, has become a 
 part of the political history of the countrj'. They hold this fact to be so notorious that the House ought 
 to take legislative notice of it in this contest, and may take like notice of it for the purpose fif any appro- 
 priate legislation. They report, therefore, that upon the case as presented to your committee Mr. 
 Pinchback is not shown to be entitled to a seat in this House. 
 
 The minority said in this connection: 
 
 According to the sworn admissions of a majority of the men composing this pretended board it is 
 shown that it was never in possession of the lawful returns of the election. 
 
 Mr. Webster, in Luther v. Borden (7 How. S. C. Rep., p. 30), states briefly the principles of 
 American politics; 
 
 "Suffrage is a delegation of political power to some individual. Hence the right must be guarded 
 and protected against force and fraud. Another principle is that the qualification which entitles a 
 man to vote must be prescribed by previous law directing how it is to be exercised; and also that the 
 results must be certified to some central power, so that the vote may tell. We know of no other 
 principle." 
 
 To validate an election there must be votes legally deposited by legal voters, and legally counted, 
 and the result legally declared. 
 
 In Louisiana there were election laws — there was an election legally held. But in the certification 
 of Mr. Pinchback there was no count of votes by any authority whatever. The legality of the Lynch 
 board is a secondary question, so long as the fact exists that they were entirely without returns. A 
 court legally constituted can not act without a case, without parties, without pleading, without evidence. 
 
 The Lynch board have simply appointed a Congressman; not determined who had been legally 
 chosen. 
 
 The committee having unanimously reached the conclusion that Mr. Pinchback has not been shown 
 to be elected, the question arises, was his competitor, G. A. Sheridan, elected? 
 
 Mr. Sheridan presents a certificate of his election, in due form, signed by Governor Warmoth, and 
 dated December 4, 1872. Though Governor Warmoth was undoubtedly governor of Louisiana at the 
 time, and the legal custodian of the returns, it was admitted in the argument before the committee 
 that the returns had not been counted. This makes it necessary to go behind the certificate of the 
 governor and inquire into the merits of the case as affected by the law and the facts. 
 
 (2) As to the claim of Mr. vSheridan. 
 
 Mr. Sheridan conceded that when his certificate was issued on December 4 the 
 Congressional vote had not been canvassed by any board whatever. The only
 
 820 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 624 
 
 board which returned Mr. Sheridan as elected was the Foreman board, appointed 
 after the election by the McEnery Senate under a law enacted after the election. 
 The majority of the committee thus speak of the Foreman board: 
 
 The return by the Foreman board of the Congressional vote was separate from the returns of the 
 vote for other officers. 
 
 The inquiry of the Senate committee was directed wholly to the other returns. 
 
 There is no proof, and there is no presumption, that the correctness of this return was verified by 
 comparison with the parish returns. 
 
 It is uncontroverted that, in violation of the law of Louisiana, which requires them to be opened 
 in presence of the returning board, they were privately opened by Governor Warmoth, or by clerks in 
 his office. 
 
 Their whereabouts since that time have not been often known. It is safe to say they have not 
 been in the custody of the law. Some of the returns produced before the Senate committee were 
 forgeries: p. 1095. 
 
 What credit they would be entitled to it' in evidence need not be discussed, as not one of them 
 was before the committee. 
 
 The majority furthermore proceed on questions of fact to impeach the returns 
 of the Foreman board. 
 
 The minority, after quoting the return of the Foreman board, say : 
 
 We see no sufficient groimd for rejecting this conclusion. The original returns are proved to have 
 been received by the governor, proved to have been turned over, partially canvassed and compiled, 
 by the De Feriet board, and proved to have been turned over from them, unaltered, to the Foreman 
 board, which completed the canvass and compilation, and proved and admitted to have been placed 
 in the possession of the committee, and no intimation has ever been hazarded that the official state- 
 ment, of which the above is a copy, is not correct. 
 
 Following out this conclusion, the minority reported resolutions that Mr. 
 Sheridan was entitled to the seat. 
 
 The majority did not concur in tliis view, and concluded their report as follows: 
 
 Your committee are now assuming that the Foreman board was the legal returning board; that 
 McEnery, so far as the legal returns show, is the de jvu-e governor of Louisiana, and the McEnery legis- 
 lature the lawful legislature of that State. They give to the documents and proof, challenging the 
 returns from these parishes, the same consideration, and no other, which they would be compelled to 
 give them if the McEnery government were in office and the legality of the Foreman board unquestioned. 
 They consider the partisan source from which this proof comes and withhold from it their implicit 
 credence. They do not say that the crimes charged by it against the McEnery party are graver or 
 better proven than the crimes charged against the Kellogg party. They perform, in their judgment, a 
 duty imposed upon them by the order referring this case in reporting that these papers give ample 
 warning to the House that the seating of Mr. Sheridan, without further evidence, may possibly cover, 
 and in part consummate, a conspiracy against the liberties of the people of Louisiana, which was a 
 most stupendous crime. They do not feel at liberty to report, upon the evidence before them, that 
 this seat is vacant. The registration, election, and returns were fair and honest, as they believe, in 
 some, if not in a majority, of the parishes of the State. That the political friends of Mr. Pinchback 
 have not before this availed themselves of the opportunity which this contest between candidates on 
 the respective State tickets offered, with process for witnesses and papers, to prove to the country that 
 they carried this election, most seriously challenges the confidence and patience of the public. It is 
 but just to say, however, that the expectation that Mr. Pinchback would be seated in the Senate is, 
 perhaps, the reason that such an effort has not been made. 
 
 If this case be remanded for further proof and be fully developed, the result, there is reason to 
 believe, will either demonstrate that the Kellogg government is rightfully in power or will furnish 
 the proof that it is a usurpation.
 
 & 625 CONFLICTING CREDENTIALS. 821 
 
 Your committee recommend the adoption of the accompanying resolutions: 
 
 Resolved, That the evidence in this case is not sufficient to establish the right of either P. B. S. 
 Pinchback or George A. Sheridan to a seat in this House as a Representative at large from the State of 
 
 Louisiana. 
 
 Resolved, That Mr. Sheridan have leave to amend his notice of contest, if he shall so elect, serving 
 upon Mr. Pinchback his amended notice within twenty days hereafter; that Mr. Pinchback have lib- 
 ertv to answer such amended notice within forty days hereafter, and that upon the service of such answer 
 the evidence of the respective parties be taken under the existing laws of Congress in such case made 
 and provided; and that in case of default of an answer to such amended notice, Mr. Sheridan be at 
 liberty to take testimony ex parte; and in case of default to serve an amended notice of contest, Mr. 
 Pinchback may serve a notice of contest, as provided by law, within forty days hereafter, and take 
 testimony in like manner. 
 
 On June 8 ' the report was debated, and on June 9 ' a vote was taken, first, 
 on an amendment declaring Mr. Pinchback entitled prima facie to the seat, and 
 the amendment was disagreed to without division. Then the resolution reported 
 by the minority of the committee declaring Mr. Sheridan duly elected was disa- 
 greed to — yeas 72, nays 145. 
 
 Then the resolutions reported by the majority were agreed to without division. 
 
 625. The cases of Sheridan, Sypher, and others, continued. 
 
 The original primary returns being inaccessible because of the 
 contention of rival returning boards, the House gave credit to secondary 
 evidence as to what they showed. 
 
 Ex parte proof, while not admitted as competent proof of the facts 
 therein recited, was given weight as raising a suspicion of frauds justify- 
 ing an investigation. 
 
 On February 24, 1875,=' Mr. Horace H. Harrison, of Tennessee, submitted the 
 report of the majority of the committee. Speaking of the resolution under which 
 they acted, the report says that the contestee, Mr. Pinchback, had shown a marked 
 indifference to the contest, and had not attempted to strengthen his original claim 
 that the LjTich board was the valid returning board. Such testimony as he had 
 taken was confined to an attempt to show fraud sufficient in the election to overturn 
 the claim of contestant. The report goes on to argue that the Congressional ques- 
 tion was not in its real substance complicated with the controversies over the State 
 government, that the Congressmen were elected under Federal supervision and at 
 regularly conducted polls. The report says: 
 
 An election for Congress for the State at large was held under the forms of law and at the time 
 required by law. The returns of the election were made to the governor, who, under the law of that 
 State, was the proper officer to whom the returns were to be made. The election, so far as tliat of select- 
 ing Representatives in Congress was concerned, was conducted, as the proof shows, in the presence and 
 under the supervision of supervisors appointed under the act of Congress. These returns of the election, 
 in the hands or in custody of the governor, were placed in the possession of a returning board, and in 
 the unfortunate conflict which took place as to who constituted the legal returning boards authorized 
 by law to canvass the returns and promulgate the result they passed into the hands of several different 
 returning boards, and are now said to be in the possession of John McEnery, claiming to be governor 
 of Louisiana. If there had been no contest as to what returning board should have canvassed the 
 
 ' Record, p. 4694. 
 
 Journal, pp. 1139, 1141; Record, pp. 4733^734. 
 
 'Second session Forty-third Congress, House Report No, 263; Smith, p. 322; Rowell's Digest, p. 293.
 
 822 PEECEDENTS OF THE HOUSE OF REPKESENTATIVES. § 625 
 
 returns and decided the result, and the returns were before the committee, these returns would con- 
 stitute the best, the highest evidence of what these returns show, and of the fact of who was elected. 
 These returns, however, not being before the committee, and the contestant in this case having used 
 all due diligence to have them produced, and failing, we think he is entitled to secondary evidence 
 of what these returns show. 
 
 There can be no doubt that the original returns of the election of 1872 were in possession of and 
 canvassed by the board known as "the Forman board." 
 
 Assuming that the original "primary returns" made to the governor from all the parishes of the 
 State but two were received by him, opened by him in the presence of the Wharton board, delivered 
 by him to the De Ferriet board, and transmitted to the Forman board just as they had been received 
 (and these facts the additional proof shows), we are to look to what these returns show. They show 
 that contestant Sheridan received 65,016 votes and contestee Pinchback 54,402 votes. 
 
 As to the correctness of this tabulation we have the sworn testimony of Mitchell, Forman, and 
 Thomas, a majority of the board; and, in addition to this, the admission of the contestee (p. 3 of addi- 
 tional testimony) that it is a compilation of the returns before the Forman board is conclusive. 
 
 They show a majority of 10,614 for contestant. The contestee, however, objects to this compila- 
 tion of the Forman board, first, because six parishes were omitted in the compilation, and, secondly, 
 because of alleged frauds in connection with the election throughout the State, including frauds in 
 the city of New Orleans. 
 
 While Mr. Pinchback offers no evidence to show that the six parishes were illegally excluded 
 from the count, stiU if they were illegally excluded it could not affect the result. 
 
 As to the contention that the election was rendered of no avail by reason of 
 fraud, the majority conclude that the proof does not sustain it. The report says: 
 
 The affidavits of these parties, taken ex parte, were filed by contestee before the adoption of the 
 resolution by the House at last session, and with the design of impeaching the correctness of the action 
 of the Forman board. They were not received by the committee as competent or conclusive proof 
 of the facts therein recited or the statements therein made, but only as raising a suspicion of fraud, and 
 suggesting the propriety of an investigation * * * before a final determination. 
 
 The minority say in their views, submitted by Mr. Smith, of New York: 
 
 We would not consider their ex parte affidavits for the benefit of Mr. Pinchback. He should have 
 examined the witnesses upon the stand. The committee said of this evidence in their former report: 
 " It is of such a character, in the judgment of your committee, as to demand a most thorough investigation 
 of its truth or falsity before Mr. Sheridan is seated;" and that "these papers give ample warning to the 
 House that the seating of Mr. Sheridan, without further evidence, may possibly cover, and in part con- 
 summate, a conspiracy against the liberties of the people of Louisiana, which was a most stupendous 
 crime." 
 
 While the committee would not consider ex parte testimony for the purpose of seating Mr. Pinch- 
 back, they can not shut their eyes to it, and to the 1,100 manuscript pages of official reports on file with 
 the Clerk, the President's message, and the Senate testimony, for the purpose of seating Mr. Sheridan, 
 especially after the action of the House in remanding this case, that this matter might be cleared up. 
 
 On the question of the alleged frauds the committee divided. The majority 
 concluded : 
 
 The Congressional vote, under the supervision of United States supervisors, was at least counted 
 fairly. 
 
 The committee have decided unanimously that the contestee, Pinchback, was not elected. The 
 report of the majority of the committee at the last session, prepared by the chairman of the committee, 
 on the point as to the election being a fair one, is as follows: 
 
 "They do not feel at liberty to report, upon the evidence before them, that this seat is vacant. The 
 registration, election, and returns were fair and honest, as they believe, in some, if not in a majority, of 
 the parishes of the State."
 
 § 626 CONFLICTING CKEDENTI.U.S. 823 
 
 There is certainly nothing in the additional testimony taken in this case showing that the seat is or 
 should be vacant, and nothing additional challenging the fairness of the election. 
 We therefore recommend the adoption of the following resolutions: 
 
 1. Resolved, That P. B. S. Pinchback was not elected a Member of Congress from the State of 
 Louisiana from the State at large in the Forty-third Congress. 
 
 2. Resolved, That George A. Sheridan was duly elected a Member of Congress (,for the State at large) 
 from the State of Louisiana in the Forty-third Congress and is entitled to his seat. 
 
 The minority recommended a resolution declaring the seat vacant. 
 
 On March 3 ' the first resolution of the majority was agreed to without division 
 or debate. The second resolution, to seat Mr. Sheridan, was agreed to — ayes 121, 
 noes 29. 
 
 Mr. Sheridan was then sworn in. ^ 
 
 626. The cases of Sheridan, Sypher, and others, continued. 
 
 Forms of resolution for instituting a contest after expiration of the 
 time fixed by law. 
 
 The abolition of certain polling places whereby it was rendered im- 
 possible for many voters to cast their ballots was held not to justify the 
 addition of votes to the returns of the candidate injured thereby. 
 
 On December 8, 1873,' the following resolution, reported from the Committee 
 on Elections, was agreed to : 
 
 Resolved, That Effingham Lawrence and E. C. Davidson, from the First and Fourth Congressional 
 districts of Louisiana, respectively, be permitted to serve upon J. Hale Sypher and George L. Smith, 
 who are sitting Members of the same districts, respectively, notices of contest within twenty days from 
 the passage of this resolution, and that the said sitting Members be permitted to answer the same within 
 twenty days after the service thereof. 
 
 Resolved, That the time for the taking of testimony in each of said contested election cases is hereby 
 ;xtended for ninety days from the time the answer is allowed to be filed to the notice of contest. 
 
 Also, on January 13, 1874,* the following was agreed to: 
 
 Resolved, That J. Hale Sypher, the sitting Member from, etc., * * * be, and he is hereby, 
 permitted to file his answer to the notice of contest served on him by, etc., * * * within the time 
 allowed by the resolution of the House for answer; and that such filing shall be deemed a full compliance 
 with the law governing such matters: a copy of said answer to be forwarded by the Clerk at once to the 
 contestant by mail. 
 
 On February 27, 1875,^ Mr. James B. Robinson, of Ohio, submitted the report 
 of the majority of the committee. The facts as to credentials and returns in this 
 case were the same as in that of Sheridan v. Pinchback, and the report is predicated 
 on the result of the canvass by the Forman board. The report finds on the face of 
 the corrected returns a majority of 1,947 votes for Mr. Lawrence, the contestant. 
 The sitting Member contended that frauds sufficient were shown to overcome this 
 majority. As to this question of fraud, two questions appear: 
 
 (1) The question of abolition of polling places for fraudulent purposes. 
 
 'Journal, pp. 636, 637; Record, p. 2232. 
 
 ^Mr. Pinchback was also seeking a seat in the Senate at the same time. 
 'Journal, p. 83. 
 * Journal, p. 231. 
 
 ' Second session Forty-third Congress, House Report No. 269; Smith, p. 340; Rowell's Digest, 
 p. 300.
 
 
 824 PBECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 626 
 
 The majority say: 
 
 The principal ground on which the claim is based is the fact that in Plaquemines Parish the first, 
 second, and third ward voting places were abolished for that election, by means of which a large Repub- 
 lican voting population was left in the upper part of that parish from 25 to 35 mUes from the nearest 
 polls. The committee characterize the abolition of these voting places as an outrage, for which there 
 should be some relief. They, however, find that Mr. Lawrence was not a party to this wrong, and, so 
 far as he was able, he caused restitution by tendering to all voters, irrespective of party, the free use of 
 his steamboat, which went down from Orleans and stopped at the several landings and took voters to the 
 polls down the river. 
 
 The committee are unable to estimate the number who failed on that account to vote, but think, 
 from the evidence, that it could not have exceeded about 350 votes altogether. The Republican vote 
 in that parish was 1,040 in 1872. In 1874 it was 1,417, or 377 increase. As that parish was quiet, the 
 probability is the vote of 1874 would be a fair test, but the vote for Lawrence was also increased several 
 hundred over 1872. 
 
 The committee, however, are not able to find any principle of law on which votes could be added 
 for that parish, even granting votes were lost to Mr. Sypher by reason of the failure to establish proper 
 voting places, unless the provisions of the enforcement act were strictly followed, which no one claims 
 was done. 
 
 The minority views, presented by Mr. Gerry W. Hazelton, of Wisconsin, say: 
 
 As an illustration in point, the parish of Plaquemines, in the south part of the district, is about 130 
 miles in length, and has always, since 1868, polled a large majority of Republican votes. The bulk of 
 the colored population is in the north portion of the parish. In order to prevent the colored voters 
 from participating in the election, the Democratic managers, immediately prior to the election, changed 
 the polling places of the parish and took up or discontinued those in the portion of the parish where 
 the colored voters resided, so that on the west side of the river no polling place was established for 47 
 miles from the north boundary of the parish, and on the east side for 38 miles. A more high handed 
 and flagrant attempt to prevent the colored voters, who were known to be Republicans, from partici- 
 pating in the election, can not be conceived. It was a wicked and shameless scheme on the part of the 
 contestant's friends to defeat rather than to secure a fair election. It was a base prostitution of the powers 
 emanatin" from the executive, wielded by or under the dictation of Democratic leaders, to consummate 
 a dishonest and dishonorable purpose. Under the law of Louisiana the registrar, who is appointed and 
 may be removed by the governor of the State, fixes the polling places in his parish, and may determine 
 their number and location according to his own wishes or interests, without consulting the convenience 
 of the voters at all. 
 
 This power was exercised in the parish of Plaquemines in such manner as to require colored voters 
 to go as far as from Alexandria and Washington to Baltimore to vote; and to emphasize the outrage the 
 arrangements were consummated so clandestinely that the mass of colored voters knew nothing of the 
 discontinuance of the polling places theretofore established until the very day of the election. 
 
 (2) As to other points in the district there was a large amoimt of evidence of 
 fraud, but the majority of the committee did not conceive it sufficiently shown to 
 be sufficient to overcome Mr. Ijawrence's returned majority. Therefore they 
 reported the following: 
 
 Resolved, That J. Hale Sypher was not elected a Member of the Forty-third Congress from the First 
 district of Louisiana. 
 
 Resolved, That Effingham Lawrence was duly elected a Member of the Forty-third Congress for the 
 First district of Louisiana, and he is entitled to his seat. 
 
 The minority say: 
 
 Taking this evidence to be substantially true, we submit that it shows this so-called election to 
 have been merely a wicked conspiracy to prevent an election; for there is no just sense in which that 
 which is alleged to have transpired in this district in 1872 can be called an election.
 
 & 627 CONFLICTING CREDENTIALS. 825 
 
 The undersigned can not consent to enter upon the task of framing devices and spelling out 
 methods for affirming the right of a party to a seat in the House of Representatives from the materials 
 here supplied. We can not do it without making ourselves parties to these frauds, and encouraging 
 their repetition. 
 
 The testimony shows gross irregularities on the part of the partisans of the contestee, which we are 
 as far from indorsing as those on the other side. They do not seem to have been so general and systematic, 
 and it may be claimed for them, perhaps, that they were resorted to for the purpose of counteracting the 
 schemes and machinations of the contestant's friends, in whose hands all the machinery of the election 
 was placed. 
 
 We are not disposed, in the light of all the evidence, to weigh one claim against the other. We 
 think both are so tainted, so mixed with fraud, and so involved in uncertainty, that it is safer and better 
 to refuse to affirm either. 
 
 The precedents heretofore established authorize this decision, and we think the case amply justifies 
 us in adopting it. 
 
 We therefore recommend the adoption of the following resolution: 
 
 Resolved. That neither Effingham Lawrence nor J. Hale Sypher has shown himself entitled to a 
 seat in the Forty-third Congress. 
 
 On March 3/ the report was debated briefly in the Hoiise, and then the question 
 was taken on the proposition of the minority declaring the seat vacant. This was 
 disagreed to — yeas 86, naj-s 144. 
 
 The first resolution of the majority was adopted without division, and then the 
 second resolution was agreed to — yeas 135, nays 86. 
 
 Mr. Lawrence then appeared and took the oath. 
 
 627. The Rhode Island election case of Asher Bobbins, in the Senate, 
 in the Twenty-third Congress. 
 
 Confl.icting credentials, each regular in form, being presented in the 
 Senate at different times, those first issued and first presented were hon- 
 ored after the circumstances had been examined. 
 
 On December 2, 1833,^ at the opening of the session of the Senate, a question 
 was raised as to the swearing in of ilr. Asher Robbins, from the State of Rhode 
 Island. 
 
 On Januarv' 19, 1833, in the time and manner fixed for the choice of an United 
 States Senator, the legislature of Rhode Island had chosen Mr. Robbins. And on 
 January 28 the governor had issued his certificate in due form to Mr. Robbins. On 
 February 4, 1833, this certificate was presented in the United States Senate, read 
 and entered on the Journal. 
 
 But in October, 1833, before Mr. Robbins had qualified and taken the seat, the 
 Rhode Island legislature, meeting in a new session, adopted a declaration or act that 
 the election of Mr. Robbins was "null and void and of no effect," and the office 
 vacated. Thereupon, on November 1, 1833, the legislature elected Elisha R. Potter, 
 and on the 5th of the month the governor (not the same incumbent who had issued 
 the certificate to Mr. Robbins) issued his certificate to Mr. Potter. 
 
 These two certificates came before the Senate on December 2, and a question 
 arose as to the prima facie right to the seat. 
 
 ' Journal, p. 637-639; Record, pp. 2234-2235. 
 
 ' First session Twenty-third Congress, Contested Elections in Congress, from 1789 to 1834, p. 877.
 
 826 PBECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 627 
 
 It was urged that neither should be sworn in until the final right to the seat was 
 decided. But on the other hand, the argument was made that the State was entitled 
 to the representation. 
 
 In behalf of Mr. Robbins it was lu-ged that had the Senate been convened any- 
 time between March 4 and October, he would have been indisputably entitled to the 
 seat. In electing him the State exercised her function of choosing a Senator, and 
 might not again exercise it until the constitutional period should come again. 
 
 Mr. George Poindexter, of Mississippi, moved that Mr. Robbins do take the 
 customary oath. 
 
 Mr. William R. King, of Alabama, favored the reference of the question to the 
 Committee on Elections, to determine which should be sworn. 
 
 Mr. Henry Clay, of Kentucky, argued that the State was entitled to immediate 
 representation, and that, as Mr. Robbins appeared to have been regularly elected 
 and certified, and bore credentials issued prior to the credentials of Mr. Potter, he 
 should have the seat on prima facie right. 
 
 Mr. Thomas H. Benton, of Missouri, declared that he had little regard for prec- 
 edents; he considered them the bane of this country and England. The Senate 
 should have more information before acting, and he moved reference of the ques- 
 tion to a select committee. 
 
 After somewhat extended debate, this motion was disagreed to; ayes 15, noes 19. 
 
 Then Mr. Poindexter's motion was agreed to, and Mr. Robbins took the oath. 
 
 The report of the select committee appointed to investigate the case on its 
 merits, reported the following state of facts, which appear to have been imder- 
 stood to some extent, at least, when the debate was held on the prima facie right: 
 
 The select committee to which was referred the credentials of Asher Robbins, chosen a Senator in 
 Congress from the State of Rhode Island for the term of six years, to commence on the 4th day of March, 
 1833; and also the proceedings of the legislature of said State, convened on the last Monday of October, 
 1833, declaring the election of the said Asher Robbins void, who thereupon proceeded to elect Elisha 
 R. Potter a Senator in Congress for six years, to commence on the 4th day of March, 1833, instead of said 
 Asher Robbins, whose election to fill said office had been declared void as aforesaid, have had the whole 
 subject so referred to them under their serious and attentive consideration, and submit the following 
 report: 
 
 That it appears by the credentials of Asher Robbins and the proceedings of the general assembly 
 of the State of Rhode Island hereto appended, and marked "A," that the senate and house of repre- 
 sentatives of said State, then sitting in the city of Providence, met in grand committee in conformity 
 to the usage of the legislature in such cases, for the purpose of choosing a Senator to represent said 
 State in the Congress of the United States: and that, on counting the ballots, it appeared that Mr. Rob- 
 bins was elected by a majority of four votes, who was thereupon declared to be duly elected a Senator 
 to represent said State in the Congress of the United States for six years from and after the 4th day of 
 March then next following; that, having performed the duty for which the two houses had met, the 
 grand committee was dissolved, and the members of each house repaired to their respective chambers. 
 It further appears to your committee that on the 28th day of the same month of January Ilis Excellency 
 Lemuel H. Arnold, governor of the State of Rhode Island, by commission in due form, bearing his signa- 
 ture, under the great seal of the State, did proclaim and make known the election of the said Asher Rob- 
 bins as aforesaid, and caused the said commission, signed and sealed as aforesaid, to be delivered to the 
 said Asher Robbins, which was presented to the Senate of the United States in open session on the 4th 
 day of February, 1833, and on motion read and entered on the journals of the Senate. By virtue of the 
 force and effect of the aforesaid commission, the said Asher Robbins, Senator-elect from the State of 
 Rhode Island, appeared in the Senate Chamber on the 2d day of December, 1833, was duly sworn to 
 support the Constitution of the United States, and took his seat as a member of the Senate.
 
 § 628 CONFLICTING CREDENTIALS. 827 
 
 It further appears to your committee that at a subsequent session of the general assembly of Rhode 
 Island, begun and held at the town of South Kingston in said State, on the last Monday of October, 
 1833, certain proceedings were had relative to the election of the said Asher Robbins as above men- 
 tioned, which resulted in the adoption of a declaration or act of the said general assembly, by which the 
 election of Mr. Robbins is declared to be "null and void and of no effect," and the office vacated. 
 Whereupon, at the same session of the general assembly the two houses met in grand committee on the 
 Ist day of November, 1833, and proceeded to elect a Senator to represent the State of Rhode Island in 
 the Congress of the United States for the term of six years, commencing on the 4th day of March pre- 
 ceding, to supply the vacancy created, or supposed to be created, by the act declaring the election of 
 Mr. Robbins null and void; and the majority appearing to be in favor of Elisha R. Potter, the said 
 Potter was thereupon declared to bo duly elected a Senator in Congress from the said State for the term 
 aforesaid, when the grand committee was dissolved and the members repaired to their respective cham- 
 bers. That on the 5th day of the same month of November His Excellency John Brown Francis, gov- 
 ernor of the State of Rhode Island, by commission in due form, bearing his signature, under the great 
 seal of the State, did proclaim and make known the election of the said Elisha R. Potter as afore?aid, 
 and cause the said commission, signed and sealed as aforesaid, to be delivered to the said Elisha R. 
 Potter, which was presented to the Senate on the 2d day of December last, and on the 5th day of the 
 same month referred to this committee. 
 
 The case was considered fully on its merits, and after an examination of the 
 status of the legislatures of Rhode Island, the Senate, b}' a vote of yeas 27, nays 16, 
 agreed to the follomng: 
 
 "Resolved, That Asher Robbins, being duly and constitutionally chosen a Senator in Congress 
 from the State of Rhode Island, is entitled to his seat in the Senate." ' 
 
 628. The Senate election case of Corbin v. Butler, from Soutli Caro- 
 lina, in the Forty-fifth Congress. 
 
 Before its committee had reported on conflicting credentials, the Sen- 
 ate took one set of credentials from the committee and seated a claimant 
 whose prima facie and final right and personal conduct were assailed. 
 
 On Februan^ 13, 1877,- in the Senate, Mr. John J. Patterson, of South CaroHna, 
 presented the credentials of David T. Corbin as Senator from South Carolina for 
 the term of six years commencing March 4, 1877. On March 2^ Mr. Matt W. Ran- 
 som, of North Carolina, presented the credentials of M. C. Butler, certified by 
 Wade Hampton, as governor of South Carohna, to have been elected for the term 
 commencing March 4, 1877. 
 
 On March 7, 1877,^ on motion of Mr. Patterson, the credentials of Messrs. 
 Corbin and Butler were referred to the Committee on Privileges and Elections. 
 
 On November 20,^ at the regular session, Mr. Allen G. Thurman, of Ohio, sub- 
 mitted for consideration: 
 
 Resolved, That the Committee on Priv-ileges and Elections be discharged from the further consid- 
 eration of the credentials of M. C. Butler, of South Carolina. 
 
 This resolution was debated at length on November 21, 22, and 26. Most of 
 this debate was as to the expediency of discharging the committee, and as to the 
 
 'Senate Election Cases, Senate Doc. No. 11, special session Fifty-eighth Congress. 
 
 - Second session Forty-fourth Congress, Record, p. 1507. 
 
 3 Record, p. 2069. 
 
 ♦Special session of the Senate, Forty-fifth Congress, Record, pp. 23, 24. 
 
 'First session Forty-fifth Congress, Record, p. 556.
 
 828 PRECEDENTS OF THE HOUSE OF KEPEESENTATIVES. § 628 
 
 reasons why a report had not been made on this case. It appeared that the Louisi- 
 ana case was before the committee and was receiving prior consideration. It was 
 urged ' on behalf of the committee that there was in this case a question which of 
 two rival South Carolina legislatures was entitled to recognition, and that time 
 must be given the committee to make the proper examination. On the other 
 hand, it was argued ^ that the briefs of the contestants substantially furnished all 
 the facts needed by the Senate to decide the case without action by the committee. 
 On November 26,^ Mr. George F. Edmunds, of Vermont, called attention to a 
 charge that the Senator from South Carolina, Mr. Patterson, had been coerced by 
 threats that he would be confined in the penitentiary of South Carolina, to cooperate 
 Avith those desiring to seat Mr. Butler. Mr. Edmunds thereupon proposed this 
 amendment : 
 
 By striking out all after the word "resolved" and in lieu thereof inserting: 
 
 "That the Committee on Privileges and Elections be, and hereby is, instructed to inquire forth- 
 with, and report as soon as may be, whether any threats, promises, or arrangements respecting existing 
 or contemplated accusations or criminal prosecutions against any Senator, or any other corrupt or other- 
 wise unlawful means or influences have been in any manner used or put in operation, directly or indi- 
 rectly, by M. C. Butler, one of the claimants to a seat in the Senate from the State of South Carolina, 
 or by any other Senator or other person, for the purpose of influencing the vote of any Senator on the 
 question of discharging said committee from the consideration of said M. C. Butler's credentials or on 
 the other question at the present session of the Senate; and that said committee have power to send for 
 persons and papers, and to sit during the sittings of the Senate." 
 
 After debate, this resolution was decided in the negative, yeas 27, nays 30. 
 
 On this day also there was debate as to the merits of the case, and the facts 
 relied on by the two contestants were put quite fully before the Senate, especially 
 as to the alleged intimidation of voters in two counties, which had resulted in the 
 exclusion of the representatives of those counties from one of the rival legislatures. 
 
 Mr. Samuel J. R. McMillan, of Minnesota, urged * that the Senate did not know 
 at this time whether or not there were any issues of fact not settled between the 
 parties to the contest. Therefore he moved to strike out of the pending resolution 
 all after the word "resolved" and insert — 
 
 That the Committee on Privileges and Elections be instructed to examine and report what ques- 
 tions of fact, if any, in the Corbin-Butler case are not settled by the admissions of the claimants to the 
 seat now vacant from the State of South Carolina. 
 
 This amendment was debated somewhat, and while it was pending the brief 
 of Mr. Corbin, giving a view of the issues in the case, was read. The amendment was 
 disagreed to, yeas 24, nays, 28. 
 
 Next there was debate which involved the so-called "Plamburgh massacre," 
 and certain testimony was read tending to show the active participation of one of the 
 contestants (Mr. Butler) in that affair, and it was claimed that the so-called 
 "massacre" was one of the means by which Mr. Butler secured the title to the seat 
 which he now presented to the attention of the Senate. It was urged in behalf of Mr. 
 Butler that the testimony relied on to prove Mr. Butler's participation in the Ham- 
 burgh affair was ex parte and unreliable, and that its presentation in this case was 
 
 1 Record, p. 572. ^ Record, pp. 645-648. 
 
 2 Record, p. 576. " Record, pp. 653-662.
 
 § 629 CONFLICTING CREDENTIALS. 829 
 
 unjust. It was argued, on the other hand, by Mr. Roscoe Conkling, of New York, 
 that this testimony tencHng to raise a question as to whether Mr. Butler had not 
 actually participated in bringing about the alleged terrorism by which his election 
 was apparently secured, and showed that a committee ought to pass on this question 
 of fact before the Senate should act. 
 
 The debate ' on this point was interspersed with dilatory proceecUngs incident 
 to a session wliich lasted all night and consumed twenty-eight consecutive hours. 
 The resolution to discharge the conmiittee was finally agreed to,' yeas 29, nays 27. 
 
 The credentials of Mr. Butler were then before the Senate, which adjourned at 
 this point. 
 
 On November 28 ^ the Senate proceeded to the consideration of a resolution to 
 seat William P. Kellogg as Senator from Louisiana. 
 
 Mr. Thurman moved to substitute therefor: 
 
 That M. C. Butler be now sworn in as a Senator from the State of South Carolina. 
 
 Tliis amendment was rejected, yeas 30, nays 31. 
 
 On November 30,^ after the Senate had determined to admit to a seat Mr. 
 William Pitt Kellogg, of Louisiana, Mr. Thurman moved that M. C. Butler, of 
 South Carohna, be sworn in as a Senator from that State. This motion was agreed 
 to, yeas 29, nays 28. 
 
 Thereupon the oath was administered to both Mr. Kellogg and Mr. Butler. 
 The votes on the two cases were taken after an agreement by unanimous consent 
 that the one should follow the other. 
 
 629. Tlie case of Corbin v. Butler, continued. 
 
 Instance of a contest inaugurated in the Senate by petition, and form 
 of petition. 
 
 The majority of the Senate committee contended that the doctrine of 
 res adjudicata did not apply to a decision incident to the credentials and 
 made without full and formal examination of the merits. 
 
 At the next session of Congress, on December 13, 1877,^ Mr. Angus Cameron, 
 of Wisconsin, presented the following petition, which later was referred to the 
 Committee on Pri\aleges and Elections: 
 
 To the honorable Senate of the United States: 
 
 Your petitioner, Da\dd T. Corbin, of the State of South Carolina, shows to your honorable body 
 that he was, on the 12th day of December, A. D. 1876, duly and lawfully elected by the legislature of 
 the State of South Carolina to the office of United States Senator from that State for the term of six years 
 commencing the 4th day of March, A. D. 1877. 
 
 That in said election all the provisions of the Constitution and laws of the United States were 
 complied with, and your petitioner was regularly and duly declared elected by the legislature of said 
 State, and duly commissioned accordingly by the governor of said State. 
 
 And your petitioner further shows that his credentials were presented to your honorable body 
 before the close of the last regular session, and at the commencement of the extra session in March last 
 said credentials, together with the credentials of M. C. Butler (who claimed to have been elected also 
 Senator from South Carolina), were referred to the Committee on Privileges and Elections of your hon- 
 orable body. 
 
 ' Record, pp. 663-712. * Record, pp. 797, 798. 
 
 ' Record, p. 712. * Second session Forty-fifth Congress, Record, p. 1G6. 
 
 ' Record, p. 730.
 
 830 PEECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 629 
 
 And your petitioner shows, on information and belief, that his said credentials have, since said 
 reference of them to said committee, remained in the possession of said committee, and that no action 
 has been taken thereon, either by said committee or the Senate. 
 
 And your petitioner now prays that your honorable body will, in justice to your petitioner, and in 
 justice to the legislature of the State of South Carolina that elected and the governor that commissioned 
 him, inquire into, hear, and determine on their merits the claim and right of your petitioner to a seat in 
 your honorable body as Senator from the State of South Carolina. 
 
 All of which is respectfully submitted. 
 
 David T. Corbin. 
 
 On February 4, 1879/ Mr. Cameron presented the report of the cominittee, 
 which was concurred in by Messrs. Bainbridge Wadleigh, of New Hampshire; John 
 H. Mitchell, of Oregon; S. J. R. McMillan, of Minnesota; George F. Hoar, of Massachu- 
 setts, and John J. Ingalls, of Kansas. 
 
 Several questions are discussed in this report. 
 
 (1 ) As to the doctrine of res adjudicata as applied to the case, the report says : 
 
 On the 26th day of March, 1878, this petition was referred to this committee. At the very outset 
 of the committee's examination of Mr. Corbin's claim they were met with a plea to their jurisdiction, 
 submitted by the counsel of Mr. M. C. Butler, as follows: 
 
 "The sitting Member respectfully submits that the Committee on Privileges and Elections can not 
 entertain jurisdiction of the contestant's claim to the seat of a Senator from the State of South Carolina 
 in the Congress of the United States. He bases his denial of the right of the committee to take jurisdic- 
 tion of the case upon the following grounds: 
 
 "1. In the adjudication of a contested election case, under that clause of the Constitution which 
 makes each House 'the judge of the elections, returns, and qualifications of its own Members,' the Senate 
 acts as a judicial tribunal. And the general principle that every question in issue settled by the final 
 judgment of a judicial tribunal becomes res adjudicata as between the parties thereto applies to judg- 
 ments of the Senate in contested election cases. 
 
 "2. The contestant's petition, referred to the committee March 26, 1878, suggests no question 
 which was not adjudicated by the Senate in the determination of this cause at the first session of the 
 Forty-fifth Congress ; nor was any question involved in the contestant's case as presented to the committee 
 or to the Senate at that session which was not adjudicated in that determination. 
 
 "3. Inasmuch as the Senate has no set forms for its judicial decisions, the nature and scope of an 
 adjudication will be determined, not by the mere form of the judgment, but by the whole record of 
 the case. 
 
 "4. When the Senate adjudicates a contested election case upon its merits the jurisdiction of the 
 committee over the case ipso facto terminates, whatever formalities may or may not attend the termina- 
 tion of such jiu-isdiction. 
 
 "5. Judicial tribunals of last resort will not rehear a cause after final judgment, on the application 
 of a party, but only on a motion to reconsider made by a member of the tribunal who concurred in the 
 decision; nor even in such a case after the expiration of the term at which the judgment is rendered. 
 And this principle applies to decisions made by the Senate in contested election cases." 
 
 An elaborate discussion of the proposition stated in this plea to the jurisdiction is not necessary, 
 as while expressing no opinion on their general soundness, the committee overruled the plea on the 
 ground that the same is not supported by the facts in the case. The claim or right of Mr. Corbin to a 
 scat in the Senate as Senator from the State of South Carolina is not res adjudicata, because in point 
 of fact it has not been passed upon and adjudicated by the Senate. 
 
 To ascertain what has and what has not been determined in any given case, reference must be 
 had to the record of the proceedings taken therein. 
 
 If the record shows the controversy between the parties determined upon a consideration of the 
 merits, then that determination binds the parties and their privies, and precludes further inquiry. 
 
 ' Senate Report No. 707. 
 
 ^1
 
 § 629 CONFLICTING CKEDENTIALS. 831 
 
 The facts above stated, from the records of the Senate in regard to Mr. Corbin's case, show that 
 his credentials were referred to this committee of the Senate, and that no action of the Senate has been 
 had to withdraw them from the committee. And the fact is that the credentials have been with the 
 committee to the present time by the direct action of the Senate. No case has in any form been made 
 up between Mr. Corbin and Mr. Butler and submitted to the Senate to be passed upon, and no case, 
 as between tliem, has been passed upon by the Senate. 
 
 Mr. Thurman's resolution, that the Committee on Privileges and Elections be discharged from 
 the further consideration of the credentials of M. C. Butler, of South Carolina, meant precisely what it 
 said. Its language is too clear to be misunderstood. It indicates a mere purpose on the part of the 
 mover to dispense with the further service of the Committee on Privileges and Elections in the considera- 
 tion of Mr. Butler's credentials. 
 
 After reviewing the circumstance.s of the discharge of the committee the report 
 proceeds : 
 
 But whatever individual Senators said in the course of the discussion, the action of the Senate 
 is to be looked to finally to ascertain what was determined. When the resolution was adopted its effect 
 was simply to bring before the Senate the credentials of M. C. Butler. It did not bring before the 
 Senate the credentials of D. T. Corbin. 
 
 After Mr. Butler's credentials were thus brought before the Senate a motion was made that he 
 be sworn in as Senator from South Carolina, and without debate the vote was taken and the motion 
 adopted. Mr. Butler was then sworn in. Swearing in a Senator on his credentials has always been 
 regarded as admitting him to his seat on the prima facie case made by those credentials. There is 
 no instance in the historj' of the Senate where a member has been so sworn in and allowed to take his 
 seat as Senator that such admission has been held to preclude investigation into the merits of his title. 
 On the other hand, the precedents are exactly the reverse. The cases of James Shields, of Illinois; 
 James Harlan, of Iowa; Bright and Fitch, of Indiana, and of Mallorj', of Florida, reported in Bartlett's 
 Contested Election Cases in Congress, at pages 606, 621, 629, and 608, are examples of this rule. 
 
 But the principle of res adjudicata can only apply where parties to the controversy have been 
 before the court or body having jurisdiction thereof and have been heard upon the merits of their 
 respective claims and a decision has been rendered thereon. 
 
 In the present case Mr. Corbin has never been a party before the Senate to any controversy with 
 Mr. Butler respecting his rights to a seat as Senator. The Senate, by its action, has not permitted 
 him to be a party to any such controversy, and the merits of his case have never been passed upon by 
 the Senate. Therefore, the doctrine of res adjudicata has no application to the case. 
 
 The minority views, signed by Messrs. A. S. Merrimon, of North Carolina, 
 EU Saulsbury, of Delaware, and Benj. H. Hill, of Georgia, lay stress on the theory 
 that the case should be adjudged res adjudicata: 
 
 In considering this petition the facts which have been presented to this committee axe precisely 
 the same which were presented on the former consideration of this case. Not a new fact has been pre- 
 sented, nor offered to be presented, and not an old fact has been withdrawn or modified, nor offered 
 to be withdrawn or modified. The arguments now made have been made from the same statements 
 and briefs filed on the former hearing, and not a new question of law has been presented, except the issue 
 of res adjudicata. No charge of fraud has been made against the former decision. No allegation that 
 testimony was before excluded which ought to have been admitted, or that testimony was admitted 
 which ought to have been excluded; no request by either party to produce testimony has been denied, 
 and no pretense that testimony then offered and excluded can now be produced. The jurisdiction 
 is the same; the parties are the same; the subject-matter of contest is the same; the facts are the same, 
 and the questions of law are the same. The petition now before us is a mere, sheer, naked proposition 
 that the Senate at a subsequent session shall revote on the identical questions, facts, and issues on 
 which the Senate voted and decided at a former session. 
 
 Without going into a tedious and unnecessary review of the authorities and cases to be found in 
 the books, we deem it sufficient to say that no demand like that contained in the petition of Mr. Corbin 
 was ever granted by this Senate, nor, as we believe, by any legislative body.
 
 832 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 630 
 
 In the case of Bright and Fitch, in the Thirty-fifth Congress, the parties to the rehearing asked 
 were new and different, and had not before been heard, and the rehearing itself was asked in a memorial 
 from the legislature of the State of Indiana. But because "all the facts and questions of law involved 
 were as fully known and presented to the Senate" on the former hearing as they were then presented 
 in the memorial of the legislature asking a rehearing, it was held that the judgment first rendered by 
 the Senate "was final, and precluded further inquiry into the subject." 
 
 If, on the former hearing, Mr. Corbin had been denied the pri\'ilege of introducing material facts 
 which he offered to produce; if he presented material facts now which were then unknown; if all the 
 facts and questions of law now known and presented were not then as fully known and presented, the 
 undersigned will not undertake to say his petition for a rehearing ought not in justice and right to be 
 gravely heard and considered on the merits. But as Mr. Corbin himself has suggested no new facts 
 or questions of law, and as we well know that all the facts and questions of law now known and presented 
 were then quite as well known and presented both to the committee and the Senate, we can not regard 
 his petition for another vote as entitled to further consideration. 
 
 630. The case of Corbin v. Butler, continued. 
 
 Elaborate discussion by Senate committee of effect of the constitu- 
 tional provision that '' a majority of each House shall constitute a quo- 
 rum." 
 
 Discussion by a Senate committee of the effect in an election case of 
 a decision of a State court construing a provision of the State constitution. 
 
 (2) As to the merits of the case, the main question involved was as to what 
 constituted a quorum of the State house of representatives. The majority report 
 thus reviews the case: 
 
 A general election was held in that State November 7, 1876, for State and county officers, and 
 for members of the house of representatives of the State legislature, and for a part of the members of 
 the State senate. 
 
 The returns of this election were made, first, by the several boards of precinct managers — each 
 board consisting of three members — to the commissioners of election for their respective counties, 
 called in this connection boards of "county canvassers;" second, by the several lioards of county 
 canvassers to the board of State canvassers at Columbia, the capital of the State; and, third, by the 
 board of State canvassers, who finally acted upon the returns and determined and declared the results. 
 
 The board of State canvassers, on November 22, 1876, completed their canvass of this election and 
 returned as duly elected 16 State senators and 116 members of the house of representatives. 
 
 Subsequently, and pre\'ious to November 28, 1876, the day of the meeting of the legislature, 
 the secretary of state delivered the official certificate of his election to each person declared elected 
 by the board of State canvassers. 
 
 On the 28th day of November, 1876, the newly elected senators, with those holding over from 
 the former election, met and organized as the senate, in the senate chamber in the statehouse. The 
 legality of the senate as a legislative body and the regularity of its organization are not now and never 
 have been questioned. 
 
 On the same day 59 of the persons declared elected by the board of State canvassers met in the hall 
 of the house of representatives in the statehouse and organized as the house of representatives, the other 
 57 members, holding certificates of election from the board of State canvassers, refusing to meet with 
 them. These 57 members met in a private hall in the city of Columbia, and pretended to organize as a 
 house of representatives by the election of William H. Wallace as speaker. The 59 members at the 
 statehouse elected E. W. M. Mackey speaker. 
 
 The two bodies organized at the statehouse recognized each other, respectively, as the senate and 
 house of representatives of the State by the interchange of oflacial communications pertaining to legisla- 
 tive business. They also officially recognized Governor Chamberlain as the governor of the State, and 
 were officially recognized by him as the senate and house of representatives, together constitiiting the 
 legislature of the State. 
 
 On November 29, 1876, 5 persons who contested the election of the persons declared elected by the
 
 § 630 CONFLICTING CREDENTIALS. 833 
 
 board of State canvassers as representatives of Barnwell County were declared by this house of representa- 
 tives at the statehouse to be entitled to stats, and were admitted and sworn in as members. 
 
 On December 2, 1876, 5 persons who in like manner contested the election of the persons declared 
 elected by the board of State canvassers as representatives of Abbeville County were declared by this 
 house to be entitled to seats, and were admitted and sworn in as members. 
 
 On December 5, 1876, 4 other persons, contestants for seats from Aiken County, were in like manner 
 admitted and sworn in as members. 
 
 The members thus admitted, with the original membership of 59, make the whole number of 
 members of this house of representatives (commonly known as the Mackey house) 73. 
 
 On December 2, 1876, this house of representatives considered the matter of the election for 
 members of the house of representatives in Edgefield and Laurens counties, and declared that no valid 
 election was held in those counties on the 7th of November, 1876. 
 
 On the 12th day of December, 1876, being the second Tuesday after the said 28th day of November, 
 1876, the two bodies above described proceeded, in the manner prescribed by the statutes of the United 
 States (U. S. Rev. Stat., Tit. II, ch. 1, p. 3), to elect a Senator in Congress. 
 
 D. T. Corbin received a majority of all the votes cast in both bodies on December 12, 1876. 
 
 On the following day, December 13, 1876, the two bodies convened in joint assembly at 12 o'clock 
 meridian, the journal of each house was read, and, it appearing that D. T. Corbin had received a majority 
 of all the votes in each house, he was declared duly elected Senator. 
 
 Mr. Corbin's credentials were signed on December 13, 1876, by Governor Chamberlain, who was, 
 until December 14, 1876, the unquestioned governor of the State, General Hampton not claiming to hold 
 the office until after his inauguration on December 14, 1876. 
 
 Upon this general statement of facts arises the question, Was the election of Mr. Corbin valid, and is 
 he now entitled to a seat in this body as a Senator from the State of South Carolina? 
 
 It has already been stated that no question has ever been made as to the complete validity, as a 
 legislative body and a constituent house of the general assembly, of the senate which sat in the statehouse 
 and cooperated with the house oi representatives, in which Mr. Corbin received a majority of votes. No 
 other body claimed to be the senate. 
 
 This senate never in any manner recognized the existence, as a legislative body, of the other 
 assemblage which assumed to be the house of representatives (commonly known as the \\'allace house), 
 and which met in a private hall in Columbia. 
 
 The action of this senate, therefore, so far as it enters into the title of Mr. Corbin, need not be 
 further discussed. It was valid. 
 
 The part performed by the house of representatives which sat in the statehouse in the election of 
 Mr. Corbin presents the most important question which arises in this case. 
 
 The validity of this body is called in question. It is claimed, in denial of Mr. Corbin's title, that 
 this body was never a valid legislative body under the constitution and laws of South Carolina; that it 
 never had a quorum of lawfully elected members; that all its acts were null and void. 
 
 The facts upon which this question must be decided are these: 
 
 The constitution of the State, Article II, section 4, provides as follows: 
 
 " The house of representatives shall consist of 124 members, to be apportioned among the several 
 counties according to the number of inhabitants in each." 
 
 Article II, section 14, is as follows: 
 
 "Each house shall judge of the election returns and qualifications of its own members; and a 
 majority of each house shall constitute a quorum to do business." 
 
 At the election of November 7, 1876, 124 persons were to be voted for as members of the house of 
 representatives. Of this number, constituting a full house, the board of State canvassers declared that 
 only 116 were duly elected, and the secretary of state issued certificates of election to only 116, the 
 canvassers at the same time placing upon the records a declaration of their inability, by reason of 
 unla\\-ful influences and practices in the election, to determine that any persons had been duly elected 
 as representatives for the counties of Edgefield and Laurens. 
 
 Of the 116 persons thus declared elected by the board of State canvassers, and holding certificates 
 of election from the secretary of state, 59 took part in the organization of the house of representatives in 
 the statehouse on November 28, 1876, being a majority of all the members declared elected by the board 
 of State canvassers and holding certificates of election from the secretary of state. 
 5994— VOL 1—07 53
 
 834 PBECEDENTS OF THE HOUSE OF BEPKESENTATIVES. § 630 
 
 Was the body thus composed and organized the legal house of representatives of the State? 
 
 Attention has been called to the fact that after the organization of the house of representatives 
 which elected Mr. Corbin certain of those who took part in that organization withdrew and acted with 
 another assemblage calling itself the house of representatives, thereby reducing the number of can- 
 vassing board members sitting in the Mackey house from 59 to 53, of whom only 44 voted for Mr. Corbin. 
 
 There is no force in these suggestions, because the fact is that the number of members who acted 
 with the Mackey house was never reduced below 59. It is true that a few of those who formed part of 
 the original 59 canvassing board members of the Mackey house left their seats in the statehouse and 
 joined the Wallace house; but before a single such person had left the Mackey house had, upon contests 
 duly made, admitted other members in number more than equal to those who afterward left. 
 
 If, therefore, the original house of 59 members was a lawful house on the day of its organization, 
 it was a lawful house at all times thereafter till its final adjournment December 22, 1876. If it was a 
 lawful house for any purpose it was a lawful house for the purpose of deciding contested elections of its 
 own members and for admitting those whom it might adjudge to be lawfully elected. 
 
 The statement that out of the original 59 who organized the Mackey house only 44 voted for Mr. 
 Corbin has no significance. At the time of his election the inquiry was not how many canvassing board 
 members voted for Mr. Corbin, but how many lawful members voted for him. If the house was lawfully 
 organized on November 28, then the members admitted on the 29th, and subsequently, were lawful 
 members, entitled to all the rights and powers belonging to any members. 
 
 But to the point of the legality of the Mackey house. 
 The constitutional provisions which regulate the matter of a legislative quorum in South Carolina 
 are (1) that "the house shall consist of 124 members'' and (2) that "a majority of each house shall con- 
 stitute a quorum to do business." 
 
 Stated in its most condensed form, the inquiry here is, what is the meaning of the phrase "a 
 majority of each house?'' Does it mean a majority of 124 or a majority of the members duly elected or 
 qualified? 
 
 As an original question it would seem that there are strong reasons why the latter view should be 
 adopted. 
 
 If the former view be adopted a contingency may easily occur in which it will be absolutely impos- 
 sible to organize a lawful house. If under any circiunstances there should be a failvu^e to elect a majority 
 of the whole possible representation, the government would be brought at once to a dead stop; nor 
 would there be any power anywhere to remove the obstruction. 
 
 In opposition to this view it is said that if it be held that a number less than a majority of the 
 whole possible representation constitute a quorum, then under some circumstances it will be in the 
 power of a small fraction of the whole representation to hold and exercise the powers of the house. This 
 is admitted; but such a danger will not menace the life itself of the State. The government wUl be 
 able to go on without recourse to extra legal remedies. 
 
 All governments aim at self-perpetuation. No element of self-destruction is intentionally 
 admitted into the framework or fundamental law of a State. All constitutional provisions should 
 therefore receive a construction, if possible, which shall be in harmony with this idea of the perpetuity 
 of the government, of its unbroken life and efficiency. If the rule were adopted that a quorum of the 
 house of representatives of South Carolina must consist of at least 63 members, then if from any cause 
 63 members should not be elected, it would be impossible by any constitutional methods to obtain a 
 house of representatives at least until the next general election. 
 
 No speaker could be chosen; no writs of election could be issued. Did the 59 members composing 
 the body at the statehouse constitute a quorum of the house of representatives? 
 
 The most controlling decisions upon this question are those of the two Houses of Congress. 
 
 The Constitution of the United States and the constitution of South Carolina may be said to contain 
 identical provisions upon this point. The Constitution of the United States provides as follows: 
 
 "The Senate of the United States shall be composed of 2 Senators from each State, chosen by the 
 legislature thereof for six years." (Art. I, sec. 3.) 
 
 "The number of Representatives shall not exceed 1 for every 30,000, but each State shall have 
 at least 1 Representative." (Art. I, sec. 2.) 
 
 The only respect in which these provisions differ from the corresponding provisions of the consti- 
 tution of South Carolina is that here the numerical aggregate of Senators and Representatives is no
 
 §630 
 
 CONFLICTING CREDENTIALS. 835 
 
 stated. The rule of representation is laid down, and under that rule there is always at any specified 
 point of time a fixed number of Senators and Representatives in Congress, precisely as much so as in 
 South Carolina. 
 
 In principle these two constitutional provisions are identical, and it is idle to insist that the mere 
 verbal difference is of the least importance. 
 
 The provisions respecting a quorum in the Constitution of the United States and that of South 
 Carolina are identical in terms, namely: 
 
 "A majority of each house shall constitute a quorum to do business." 
 
 It will be found that in the Senate of the United States prior to 1862 it was held as a matter of par- 
 liamentary practice in some instances that a quorum consisted of a majority of the whole possible repre- 
 sentation, and in other instances of a majority of Senators elected and qualified. 
 
 The question does not appear to have been discussed by the Senate, or to have been maturely con- 
 sidered, until after April 11, 1862. On that day Mr. Sherman, of Ohio, offered a resolution, which was 
 referred to the Committee on the Judiciary, in these words: 
 
 "Resolved, That a majority of the Senators duly elected and entitled to seats in this body is a con- 
 stitutional quorum." (Congressional Globe, April 11, 1862.) 
 
 On July 9, 1862, this resolution was debated in the Senate and laid upon the table by a vote of 
 19 t<3 18. 
 
 On March 7, 1864, Mr. Sherman offered a resolution, which was referred to the Committee on the 
 Judiciarj', in these words: 
 
 "Resolved, That a quorum of the Senate consists of a majority of the Senators duly chosen or 
 qualified." 
 
 On May 3, 1864, the Committee on the Judiciary having been discharged from the further con- 
 sideration of the resolution, it was taken up and debated. On this and the following day the subject 
 was elaborately discussed, especially by Senators Carlisle and Davis against the resolution, and by 
 Senators Johnson and Sherman in its favor. The words "or qualified " having been struck out, the reso- 
 lution was adopted by a vote of 26 to 11, May 4, 1864, in these words: 
 
 "Resolved, That a quorum of the Senate consists of a majority of the Senators duly cnosen." (Con- 
 gressional Globe, March 7, May 3 and 4, 1864.) 
 
 The precedents in the House of Representatives prior to 1861 had been varying, but here, as in 
 the Senate, the subject does not appear to have been maturely considered untQ 1861. During the first 
 session of the Thirty-seventh Congress, in the House of Representatives, Speaker Grow finally decided 
 that a quorum of the House consisted of a majority of the members chosen, and he was sustained by the 
 House in this decision. (House Journal, first session Thirty-seventh Congress.) 
 
 The effort has sometimes been made to disparage this precedent by stating that it was made under 
 the stress of a necessity to secure an organization of the House. This is a mistake. The decision was 
 made fifteen days after the organization of the House, and upon a question which did not involve the 
 question of the validity of the organization. 
 
 The resolution adopted by the Senate in 1864 has since been adopted by the Senate as a perma- 
 nent rule, and now appears in Rule 1. 
 
 If, in opposition to these precedents, it is urged that they were made because of special circum- 
 stances then existing, or upon certain constitutional theories regarding the status of the States then in 
 rebellion, the answer is that there is no doubt that the peril of an opposite construction did lead to the 
 final reversal of former precedents. And justly so. One of the truest canons of constitutional con- 
 struction is that which adopts the construction which best effectuates the purpose of the instrument or 
 provision to be construed. A construction which leads directly to the practical paralysis of the legis- 
 lative power of a State can never be admitted. 
 
 Professor Farrar, in his Manual of the Constitution of the United States, page 166, says in relation 
 to the constitutional provision respecting a quorum that "this has been held to be a majority of the 
 Members actually sworn in and entitled to seats at the time, and not a majority of a full delegation from 
 all the States." 
 
 Another precedent arose in the Senate of the United States on March 2, 1861, when a proposition 
 to amend the Constitution was on its passage. The Constitution, upon this point, provides that "Con- 
 gress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this 
 Constitution," etc.
 
 836 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 630 
 
 When the vote was taken in the Senate, March 2, 1861, Mr. Trumbull raised the point of order that 
 this provision required two-thirds of all the Senators which all the States were entitled to elect. The 
 Presiding Officer overruled the point of order, and upon appeal the ruling was sustained by a vote of 33 
 to 1. 
 
 Another precedent of considerable force is found in connection with the ratification of the fifteenth 
 amendment to the Constitution. The constitution of Indiana provided that two-thirds of each house 
 should constitute a quorum. In 1867 certain members of the legislature resigned in order to defeat a 
 vote upon the ratification of the amendment. The remaining members thereupon decided that two- 
 thirds of the actual membership constituted a quorum, and proceeded to ratify the amendment. Thia 
 action was certified in forwarding the vote of the legislature on the ratification of the amendment. No 
 question was raised by Congress in regard to the legality of the vote, and the vote of Indiana, as thus 
 cast, was accepted and counted. 
 
 The case of State v. Huggins (1 McCord, 139), decided in the court of appeals in South Carolina, is 
 in point. Eighteen managers of election were appointed by the legislature for the district of George- 
 town. Two had refused to qualify, one was dead, and one was disqualified, reducing the number to 
 fourteen. It was held by the court that a majority of foiu-teen properly formed the board of managers 
 for the district to determine the validity of the election of a sheriff, a majority of those qualified to serve, 
 and not a majority of the whole number appointed, being a lawful quorum. 
 
 Under the provision of the Constitution of the United States that "each House shall be judge of 
 the elections, returns, and qualifications of its own Members," the Senate is the sole judge of this mat- 
 ter. The action, opinion, or decision of any other body is, therefore, entitled to such weight or respect 
 only as may be due to the reasons which support it. 
 
 It is proper to consider the connection of the supreme court of the State of South Carolina with 
 this case. And it may be remarked that this presents the most remarkable and, perhaps, unfortunate 
 feature of the controversy. That court may be said, without injustice, to have taken part in the purely 
 political contests of the State. Instead of leaving such contests to be settled by other departments of 
 the government, where they properly belong, the court engaged in those contests. 
 
 The action of that court was taken under these circumstances: After the Mackey house and the 
 Wallace house were each organized, the former with 59 and the latter with 57 members declared elected 
 by the canvassing board, a petition was presented to the supreme court by Mr Wallace, as speaker of the 
 Wallace house, asking a mandamus to compel the secretarj' of state and the speaker of the Mackey house 
 to deliver to him the returns of the election for governor and lieutenant-governor. 
 
 By Article III, section 4, of the constitution of the State these returns are required to be sent by 
 the managers of the election to the secretary of state, who is required to return them to the speaker of 
 the house of representatives. 
 
 By the return of the secretary of state to the rule to show cause, issued by the supreme court 
 upon the petition above stated, it appeared that that officer had delivered the returns to the speaker of 
 the Mackey house. 
 
 The return of the speaker of the Mackey house showed that he had received the returns from 
 the secretary of state, and held them by virtue of his office as speaker, and he denied the power and 
 jurisdiction of the court in the matter. 
 
 The coiut thereupon reserved the question as to the secretary of state for further argimient and 
 dismissed the petition as to Speaker Mackey. 
 
 In coming to this conclusion the court said that "63 members were in their seats when Mr. Wallace 
 was elected. * * * That the house of representatives consisted of 124 members, and 63 were 
 necessary for a quorum to do business. * * * That aU the members had certificates from the 
 secretary of state except 8, and the qualification of these 8 was established by the proceedings in this 
 court. * * * That, no matter what was the character of the certificates they had, the return of the 
 board of State canvassers to the court, showing that they had received the greatest number of votes in 
 their particular counties, entitled them to access to the floor for the purpose of organization." 
 
 In taking cognizance of this matter and rendering a decision therein the court plainly transgressed 
 the limits of its judicial powers, and its decision is void and binding on no one. 
 
 The constitution of the State, in section 26 of Article I, provides that "in the government of this 
 Commonwealth the legislative, executive, and judicial powers of the government shall be forever 
 separate and distinct from each other."
 
 § 630 CONFLICTING CREDENTIALS. 837 
 
 That the due organization of the house of representatives is a legislative power or function, and not 
 a judicial one, seems too clear for argument. Two bodies were claiming each to be the lawful house of 
 rppresentatives. This was a purely political question. It was a question between two sections or parts 
 of one legislative body, each claiming to represent that body. No other questions were involved. 
 
 ^^"hether Mackey or Wallace was entitled to have the election returns was a question which directly 
 involved the action of the members of the legislative body, not in its effects upon citizens generally, but 
 in relation to the due organization of that body under powers granted to it alone by the constitution. 
 
 The interposition of the court was not only without authority but was also absolutely unnecessary. 
 There was ample power in the lawful house of representatives to afford the necessarj- remedy in the 
 matter, if any remedy was needed. 
 
 The judgment of the court itself shows for another reason its want of jurisdiction over the case. It 
 held that Mackey, not being an official person, could not be reached by mandamus and dismissed the 
 petition. It could grant no relief, accomplish no result, and yet it proceeded to express an opinion. 
 This was extrajudicial. The court must have recognized this dilemma at the outset, namely, if Mackey 
 is speaker, he is the lawful custodian of the returns; if he is not speaker, he is not such an official person 
 as can be reached by mandamus. Hence, in either event, no writ could have been issued, and nothing 
 remained but to dismiss the petition. 
 
 Under these circumstances the expression of an opinion that Wallace was the speaker and that 63 
 members are necessary to form a quorum was utterly uncalled for, a mere empty obiter dictum. 
 
 When, therefore, it is claimed that the supreme court of the State is empowered to construe the 
 constitution, and hence to decide upon the question of a quorum, the answer is that this is true only 
 when the court has a proper case before it requiring the decision of such a question. 
 
 But, further, it is to be noted that the court in giving this opinion assumed the fact, now denied, 
 that 124 members of the house, instead of 116, had been in fact chosen. 
 
 The supreme court gave no reason for the opinion that 63 members were necessary to form a quorum. 
 It was their unsupported opinion, a dictum in every sense, not expressed in the course of reasoning 
 or discussion leading to a judgment, and whoUy unsupported by argument. 
 
 In Carroll v. Lessee of Carroll ( 16 How. , 28 ) Judge Curtis said : ' This court, and other courts organ- 
 ized under the common law, has never held itself bound by any part of an opinion which was not needful 
 to the ascertainment of the right or title in question between the parties. In Cohens r. Virginia (6 
 Wheat., 399) this court was much pressed with some portion of its opinion in the case of Marburj- v. 
 Madison. And Mr. Chief Justice Marshall said : ' It is a maxim not to be disregarded that general expres- 
 sions in every opinion are to be taken in connection with the case in which those expressions are used. 
 If they go beyond the case they may be respected, but ought not to control the judgment in a subsequent 
 suit, when the very point is presented. The reason of this maxim is obvious. The question actually 
 before the court is investigated with care, and considered in its full extent; other principles which 
 may serve to illustrate it are considered in their relation to the case decided, but their possible bearing 
 on all other cases is seldom completely investigated.' The cases of ex parte Christy (3 How., 292) and 
 Jenness v. Peck (7 How., 612) are an illustration of the rule that any opinion given here or elsewhere 
 can not be relied on as a binding authority unless the case called for its expression. Its weight of reason 
 must depend on what it contains." 
 
 The conclusion on this point is that the construction of that provision of the Constitution of the 
 United States relative to a quorum given by both Houses of Congress is applicable to a like provision 
 in the constitution of the State of South Carolina. 
 
 It is a construction dictated by sound reason and public policy. And if it is a safe and sound 
 construction of the Constitution of the United States, it is equally a safe and sound construction of the 
 constitution of the State of South Carolina. 
 
 A quorum, therefore, of either house of the legislature of South Carolina must be held to be a majority 
 of the members chosen. 
 
 The minority views hold : 
 
 Theonly real question is whether the house of representatives of thelegislature which it is claimed 
 elected Mr. Corbin was a legal house or a legal quorum of a house under the constitution and laws of South 
 Carolina. 
 
 By section 4, Article II, of the constitution it is provided that "the house of representatives shall 
 consist of 124 members."
 
 838 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 631 
 
 By section 14, Article II, it is provided that ' ' a majority of each house shall constitute a quonun 
 to do business; but a smaller niunber may adjourn from day to day and may compel the attendance of 
 absent members in such manner and under such penalties as may be provided by law." 
 
 It is difficult to see how language could more plainly define what should be a house, or what should 
 be a quorum of a house, or what only a less number than a quorum had power to do. Nor is there any- 
 thing in law, morals, or party exigency which can justify a resort to construction or sophistry to confuse 
 Buch plain language. The number of members who assembled in what is called the Mackey house, 
 which pretended to elect Corbin, was 59. Clearly this was neither a house nor the quorum of a house, as 
 plainly defined by the constitution of the State, and this number had no power except to adjourn from 
 day to day and compel the attendance of absent members. But this number proceeded to organize as 
 a legal quorum to do business. 
 
 The pretext for this extraordinary assumption of power by 5S> membeis was that the board of State 
 canvassers had only issued certificates of election to 116 members, and the claim is that 59 is a majority 
 of 116. But this very statement admits that a quonmi of the house was certified as elected. The 59, 
 then, are left without excuse for failing to exercise their only power under the constitution — ' 'to compel 
 the attendance of absent members." But the facts show that the people in fact elected 124 members, 
 a full house. The precinct commissioners and the county commissioners of election, in all the counties, 
 respectively, made out and forwarded the statements required by law showing the votes cast at the elec- 
 tion. The board of State canvassers refused to cast up the votes in the counties of Edgefield and Laurens, 
 under the shallow pretext that they were unable to determine whether the elections in those counties 
 were legal. They refused t« discharge their plain ministerial duty of casting up the votes and thereby 
 "determine and declare what persons had been by the greatest number of votes duly elected," but 
 excused themselves from this duty by pretending they were not able to determine whether there had been 
 legal elections in those counties. This was a question which, under the constitution, each house alone 
 had authority to determine, and which the board of State canvassers, by plain language of the act creating 
 it, is forbidden to determine. 
 
 In due time, also, the house of representatives did determine that there had been elections held 
 in the counties of Edgefield and Laurens, and the returns very plainly showed who had been elected, 
 and, in fact, the full house of 124 members were elected. Both in fact and law, therefore, 59 was not 
 a quorum of the house to do business, and Mr. Corbin was not elected by a legal legislature. 
 
 (3) The majority discuss at length the action of the State canvassers in refusing 
 credentials to the persons claiming election from the two disturbed counties, finding 
 that action legal and proper. The minority do not discuss the subject at length, 
 saying merely that their action was "mere trickery" and should not receive the 
 approbation of the Senate. 
 
 631. The case of Corbin v. Butler, continued. 
 
 A Senate committee's discussion of the functions of credentials in the 
 organization of a legislature. 
 
 By a letter presented and read to the Senate a contestant withdrew his 
 claim to a seat after the committee had reported in his favor. 
 
 (4) A question as to the organization of the State house of representatives is 
 thus discussed by the majority: 
 
 Passing now from questions affecting the legality of the action of the board of canvassers, we come to 
 questions concerning the mode of organizing the Mackey house, and especially the exclusion therefrom 
 of all persons not declared elected by the canvassing board. 
 
 The legal and parliamentary principles on which the Mackey house was organized may be stated as 
 follows: 
 
 First. That no persons except those declared elected and duly returned by the board of State can- 
 vassers and holding certificates of the secretary of state were entitled by law or usage to be placed upon 
 the roll. (Gushing, sees. 229 and 240.)
 
 § 631 CONFLICTING CKEDENTIALS. 839 
 
 Second. That the organization of the house must be effected by those pereona only whose election 
 had thus been declared by the board of State canvassers and certified by the secretary of state in accord- 
 ance with the law of the State. 
 
 Third. That all other persons claiming to be entitled to seats in the house of representatives must 
 submit their claims to the house after its organization by the members whose seats were undisputed. 
 (Cashing, sees. 229 and 240.) 
 
 " It is to be observed in the outset that when a number of persons come together, each claimiDg to be 
 a member of a legislative body, those persons who hold the usual credentials of membership are alone 
 entitled to participate in the organization. " (McCrary's Law of Elections, 377.) 
 
 " It is apparent that the case of Sykes v. Spencer is not in conflict with the rule that in the organiza- 
 tion of legislative bodies persons holding the usual credentials are alone authorized to act. " (McCrary's 
 Law of Elections, 392.) 
 
 In the well-known case of Kerr ii. Trego (47 Pa. S. R. — ), cited in Brightly's Leading Cases on Elec- 
 tions (p. 632), Chief Justice Lowrie, of the supreme court of Pennsylvania, laid down the following 
 principle: 
 
 "On the division of a body that ought to be a unit, the test of which represents the legitimate social 
 succession, is, which of them has maintained the regular forms of organization according to the law and 
 usages of the body, or, in the absence of these, according to the laws, customs, and usages of similar bodies 
 in like cases, or in analogy to them. This is the uniform rule in such cases." 
 
 And in the same case, speaking of the custom of the clerk of the former organization taking charge 
 of the organization of the new body, he says (p. 638): 
 
 "It has the sanction of the common usage of every public body into which only a portion of new 
 members is annually elected. It is the periodical form of reorganizing the select council and the senate 
 of the State, and also the form of organizing the Senate of the United States on the meeting of a new 
 Congress, when the Vice-President does not appear and the last President pro tempore does; and we 
 understand this custom to be uniform throughout the United States, though this is not very important. 
 And when there is a president whose term as a member has expired, then the functions of the clerks con- 
 tinue, and they in all cases act as the organs of reorganizing the body, and continue to hold office until 
 their successors are chosen and qualified. Our State and Federal Houses of Representatives are illus- 
 tration enough of this. So un iversal is this mode of organizing all sorts of legislative and municipal bodies 
 that all departures from it can be justified only as founded on special and peculiar usages or on positive 
 legislation. Whenever this form is adhered to, a schism of the body becomes impossible, though the proc- 
 ess of organization may be very tardy. 
 
 "It is objected that a rule that attributes so much power to the officers of the previous year 
 gives them an advantage which they may use arbitrarily and fraudulently against the new members, 
 so as to secure to themselves an illegitimate majority. No doubt this may be so, but no law can guard 
 against such frauds so as to entirely prevent them, just as it can not entirely prevent stealing and perjury 
 and bribery; the people are liable to such frauds at every step in the processes of an election or organiza- 
 tion. But so much more the need for order and law in this part of the process; the law can dictate that, 
 though it can not furnish honesty and sound judgment to the actors in it. That the law and order that 
 we have announced have existed so long and so generally is proof, at least, that they are better than no 
 law at all." 
 
 In Wilson's Digest of Parliamentary Law, section 1603, page 221, this author says: 
 
 "At the commencement of every regular session the Clerk of the House opens the session by call- 
 ing the names of Members by States and Territories, if in Congress, and by counties if in State legislative 
 assemblies. If a quorum answer to their names, he will put the following question: 'Is it the pleasure 
 of the House to proceed to the election of a Speaker? ' If decided in the aflSrmative, tellers are gener- 
 ally appointed to conduct the vote. " 
 
 This seems to be the universal custom in the organization of legislative bodies, and such custom 
 not only prevails in South Carolina, but is specially established by the rules of the house of representa- 
 tives of this State. 
 
 Rule 80 of the rules of the house of representatives of this State is as follows: 
 
 "In all cases not determined by these rules, or by the laws, or by the constitution of this State, 
 as ratified on the 14th, 15th, and 16th days of April, 1868, this house shall conform to the parliamentary 
 law which governs the House of Representatives of the United States Congress. "
 
 S40 PRECEDENTS OF THE HOUSE OF REPEESENTATIVES. § 631 
 
 Rule 81 is as follows: 
 
 "These rules shall be the rules of the house of representatives of the present and succeeding 
 general assemblies until otherwise ordered. " 
 
 Turning now to Barclay's Digest (pp. 44 et seq., and 126), we find that the law governing the House 
 of Representatives of the United States Congress requires the Clerk of the last House to make up the 
 roll of the Members of the new House by placing thereon the names of such persons only whose creden- 
 tials show "that they were regularly elected;" that having ascertained, by a call of this roll, that a quo- 
 rum is present, the Clerk then proceeds to call the names of the Members for the choice of a Speaker; 
 the Speaker, being chosen, assumes the duties of presiding officer, and, after swearing in the Members, 
 the oath of office being first administered to him, proceeds to complete the organization. Pending the 
 election of a Speaker, the Clerk preserves order and decorum. 
 
 Upon the question of the right of the claimants from Edgefield and Laurens counties to he placed 
 upon the roll and to participate in the organization, the following citation from Cushing's Law and 
 Practice of Legislative Assemblies, section 229, page 87, is in point: 
 
 "The right to assume the functions of a member, in the first instance, and to participate in the 
 preliminary proceedings and organization, depends wholly and exclusively upon the return or cer- 
 tificate of election, those persons who have been declared elected and are duly returned being consid- 
 ered as members until their election is investigated and set aside and those who are not so returned 
 being excluded from exercising the function of members, even though duly elected, until their election 
 is investigated and their right admitted." 
 
 To the same effect is section 141 (p. 52) of the same work, which has already been cited in con- 
 nection with the action of the Supreme Court. 
 
 In section 238 (p. 91) of the same work, in discussing the principles of parliamentary law govern- 
 ing the assembly and organization of legislative bodies, Cu.'ihing says: 
 
 "Hence it has occurred more than once that struggles for political power have begun among the 
 members of our legislative assemblies, even before their organization; and it has happened, on the one 
 hand, that persons whose rights of membership were in dispute, and who had not the legal and regular 
 evidence of election, have taken upon themselves the functions of members, and, on the other, that 
 persons having the legal evidence of membership have been excluded from participating in the 
 proceedings." 
 
 In order to avoid such difficulties, this distinguished writer lays down the following principles in 
 section 240, which are applicable to the question now under consideration: 
 
 "That no person who is not duly returned is a member, even though legally elected, until his 
 election is established. 
 
 "That those members who are duly returned, and they alone (the members whose rights are to be 
 determined being excluded), constitute a judicial tribunal for the decision of all questions of this 
 nature." 
 
 In Kerr v. Trego (Brightly's Election Cases, p. 636), already cited, the chief justice said: 
 
 "In all bodies that are under law, the law is that where there has been an authorized election for 
 the office in controversy the certificate of election which is sanctioned by law or usage is a prima facie 
 written title to the office, and can be set aside only by a contest in the form prescribed by law. This is 
 not now disputed. No doubt this gives great power to dishonest election officers, but we know no 
 remedy for this but by the choice of honest men." 
 
 It is proper here in this connection to again refer to the language already quoted from the same 
 authority (p. 638): 
 
 "It is objected that a rule that attributes so much power to the officers of the previous year gives 
 them an advantage which they may use arbitrarily and fraudulently against the new members, so as 
 to secure to themselves an illegitimate majority. No doubt this may be so; but no law can guard against 
 such frauds so as to entirely prevent them, just as it can not entirely prevent stealing and perjury and 
 bribery; the people are liable to such frauds at ever\' step in the processes of an election or organization. 
 But so much the more need for order and law in this part of the process: the law can dictate that, though 
 it can not furnish honesty and sound judgment to the actors in it. That the law and order which we 
 have announced have existed so long and so generally is proof, at least, that they are better than no 
 law at all. "
 
 § 632 CONFLICTING CEEDENTI.VLS. 841 
 
 Applying the law as now stated to the facts in the present instance, it is clear, first, that there were 
 no representatives from Edgefield and Laurens counties ha^'ing certificates of election according to the 
 law and usage of this State, and, second, that under the law, without sucli certificates, the clerk had no 
 right to place the names of any persons upon the roll of the house as representatives from these counties. 
 
 It follows that 59 members of the house of representatives who met in the statehouse at Columlna 
 and organized lay the election of E. W. M. Mackey as speaker were lawfully convened, were lawfully 
 organized, and, under the constitution of South Carolina, constituted the lawful house of representatives 
 of that State. Though less than a majority of all the possible members of that body (124), there was a 
 "quorum to do business," which consisted of a "majority of the members chosen" — a majority of all 
 those holding lawful certificates of election. 
 
 This house of representatives, in connection with the unquestioned senate, constituting together, 
 as they did, the legislature of the State of South Carolina, proceeded on the 12th day of December, 1876, 
 to the election of a Senator to represent that State in the Senate of the United States for the term of six 
 years, to commence on the 4th of March, 1877. The election was duly held, duly determined and 
 declared, and D. T. Corbin was duly and formally declared elected Senator, and subsequently he was 
 duly commissioned as such by the governor of the State. He is, therefore, entitled, on the merits of 
 his case, to a seat in the Senate as a Senator from South Carolina for the term of six years, commencing 
 on the 4th of March. A. D. 1877. 
 
 Finally, after reviewing the circumstances of the election of Mr. Butler by a 
 legislature consisting of one house only, the majority recommended this resolution: 
 
 Resolved, That David T. Corbin was, on the 12th day of December, A. D. 1876, duly elected Ijy 
 the legislature of the State of South Carolina a Senator from that State in the Congress of the United 
 States for the term of six years, commencing on the 4th day of March, A. D. 1877, and that, as such, 
 he is entitled to have the oath of office administered to him. 
 
 On February 25, 1879,' near the end of the Congress, Mr. Cameron moved that 
 the Senate proceed to the consideration of the resolution. Tliis motion was 
 disagreed to — yeas 25, nays 36. 
 
 On February 28 ^ the Vice-President laid before the Senate a letter from David 
 T. Corbin withdrawing his claim to the seat. He stated that he did not by so doing 
 concede that his claim was not legal, but he believed that it would not be acted on, 
 and a further prosecution in the next Congress would be unavailing. 
 
 The letter was laid on the table. 
 
 632. The Senate election case of Lucas v. Faulkner, from West Vir- 
 ginia, in the Fiftieth Congress. 
 
 There being conflicting credentials arising from a question as to the 
 legality of election, and an allegation of disqualification, the Senate 
 determined final right before either claimant was seated. 
 
 In electing a Senator the State legislature acts under authority of the 
 Federal Constitution, and a State constitution and laws conflicting there- 
 with are void. 
 
 No State may prescribe qualifications for a United States Senator in 
 addition to those prescribed by the Federal Constitution. 
 
 On December 5, 1887,^ in the Senate, the President pro tempore presented the 
 certificate of the appointment, by the governor of West Virginia, of Daniel B. Lucas 
 as Senator from that State, to hold the office "until the next meeting of the legisla- 
 ture of said State having authority to fiH" the vacancy occasioned by the expiration 
 of the term of Johnson N. Camden on March 3, 1887. 
 
 '■ Record, p. 1882. " Record, p. 2028. ' First session Fiftieth Congress, Record, pp. 1^.
 
 842 
 
 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 § 632 
 
 Then the President pro tempore laid before the Senate the credentials of Charles 
 J. Faulkner, chosen by the legislature of West Virginia a Senator for the term 
 beginning March 4, 1887. These credentials,' signed by the governor and attested 
 by the secretary of state under the seal of the State, not only certified the election 
 in the usual form, but contain a recitation at length of the constitutional conditions 
 imder which the legislature acted and of the proceedings of the legislature properly 
 attested. 
 
 The President pro tempore also laid before the Senate the protest of Daniel B. 
 Lucas, wherein it was urged that the legislature had no constitutional power to elect 
 at the time it chose Mr. Faulkner, and, further, that Mr. Faulkner was disqualified. 
 
 During the swearing in of the Senators-elect Mr. George F. Hoar objected to 
 the administration of the oath to Mr. Faulkner, and the latter stood aside, as it 
 seemed proper that a committee should examine the case before the administration 
 of the oath. 
 
 On December 12," on motion of Mr. Hoar, the papers in the case were referred 
 to the Couunittee on Privileges and Elections. 
 
 On December 14^ Mr. Hoar submitted the report of the committee. This 
 report gave the following statement of facts: 
 
 The Constitution of the United States, Article I, section 3, provides: 
 
 "The Senate of the United States shall be composed of two Senators from each State, chosen by 
 the legislature thereof, for six years; * * * if vacancies happen, by resignation or otherwise, during 
 the recess of the legislature of any State, the executive thereof may make temporary appointments until 
 the next meeting of the legislature, which shall then fill such vacancies. 
 
 "Sec. 4. 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." 
 
 The Revised Statutes of the United States, Title II, section 14, provide: 
 
 "The legislature of each State which is chosen next preceding the expiration of the time for which 
 any Senator was elected to represent such State in Congress shall, on the second Tuesday after the 
 meeting and organization thereof, proceed to elect a Senator in Congress." 
 
 Section 15 prescribes the manner of such election. Section 16 is as follows: 
 
 "Whenever, on the meeting of the legislature of any State, a vacancy exists in the representation 
 of such State in the Senate, the legislature shall proceed, on the second Tuesday after the meeting and 
 organization, to elect a person to fill such vacancy, in the manner prescribed in the preceding section 
 for the election of a Senator for a full term." 
 
 The Constitution further provides, Article I, section 5: 
 
 "Each house shall be the judge of the elections, returns, and qualifications of its own members." 
 
 Of course the opinion of any other tribunal can have no weight as an authority in determining 
 any question as to the validity of the election of a Senator. But it may be proper to note that the con- 
 stitutional authority of Congress to prescribe the time and manner of electing Senators, although it may 
 not exhaust the whole subject, but still leaves in force the regulations of a State, in regard to the same 
 subject, not in conflict with its own, is expressly affirmed by the Supreme Court of the United States 
 in ex parte Seibold (100 U. S., 371). 
 
 The constitution of West Virginia provides that — 
 
 "The legislature shall assemble at the seat of government biennially, and not oftener, unless con- 
 vened by the governor. The first session of the legislature, after the adoption of this constitution, shall 
 
 ' For copy of credentials see Record, pp. 1-3. 
 
 ^Record, p. 36. 
 
 2 Record, pp. 53, 54; Senate Report No. 1.
 
 § 632 CONFLICTING CREDENTIALS, 843 
 
 commence on the third Tuesday of November, 1872; and the regular biennial session of the legislature 
 shall commence on the second Wednesday of January, 1875, and every two years thereafter on the same 
 clay. (Art. VI, sec. 7.)" 
 
 Article VII, section 7, is as follows: 
 
 "The governor may, on extraordinary occasions, convene, at his own instance, the legislature; 
 but, when so convened, it shall enter upon no business except that stated in the proclamation by which 
 it was called together." 
 
 The term of Mr. Camden as a Senator from West Virginia expired on the 4th day of March, 1887. 
 The regular biennial session of the legislature began on the second Wednesday of January in pursuance 
 of the provisions of the constitution cited. 
 
 At that session the legislature proceeded to ballot for a successor to Mr. Camden, but no person 
 obtained a majority of the ballots and it adjourned without making a choice. Thereafter, on the 5th day 
 of March, the governor appointed Mr. Lucas, in the recess of the legislature, and issued to him a certifi- 
 cate declaring his appointment as Senator in the Senate of the United States "until the next meeting of 
 the legislature having authority to fill such vacancy." Mr. Lucas accepted the appointment. 
 
 On the same 5th day of March the governor issued the following proclamation: 
 
 The report gives this proclamation in full. It summoned the legislature to 
 convene for eight specified objects, no one of which referred to the election of a 
 Senator. 
 
 Having set forth the facts the report discusses two questions arising in the case. 
 
 (1) As to the action of the legislature: 
 
 The legislature met in special session, pursuant to said call, and duly elected Mr. Faulkner to fill 
 the existing vacancy in the Senate of the United States, if it had authority so to do. 
 
 The Constitution of the United States is the supreme authority, and all provisions of the constitu- 
 tion or statutes of any State are void and of no effect unless they can be so construed as not to conflict 
 with its provisions. 
 
 The Constitution of the United States expressly provides that the vacancy which happens during 
 the recess of the legislature of any State shall be filled by the legislature at its next meeting. The statute 
 of the United States merely prescribes the time and manner in which, at such meeting, the constitutional 
 mandate shall be obeyed. The only question, therefore, which can possibly arise is whether the body 
 which sat in piusuance of the call of the governor was a legislature in the constitutional sense. 
 
 It is claimed by Mr. Lucas that, as this body was not permitted to enter upon any legislative 
 business except such as related to the eight matters set forth in the call, it was not a legislature, but was 
 a body deriving its power from the will of the executive, and so was exerting a certain executive or 
 quasi executive function, something like that which is exercised by the Senate in giving its assent to the 
 nominations of public officers. 
 
 But it seems to us that this view can not be supported. In the first place, the body is expressly 
 declared by the constitution of West Virginia itself to be a legislature. In the next place, the function 
 which it exercised in making enactments upon the eight great subjects mentioned in the call of the 
 governor is clearly a legislative function. Among them, under Articles I and II, is the making appro- 
 priations of public money; under Article III, the regulating of procedure in criminal cases; under 
 Articles V, VI, and VII, would exist the power to declare certain high crimes and misdemeanors; and 
 under Article VIII, to give the assent of the State to the establishment and confirmation of its boundary 
 lines. 
 
 It is difficult to conceive of any definition of the word "legislature " which would not include a body 
 capable of passing and actually passing such enactments as these. They can be binding on the people 
 of the Commonwealth only as legislation. They would be subject to be construed and enforced by the 
 courts of that State only in their character as laws. 
 
 But it seems to the committee that the construction of the State constitution of West Virginia, upon 
 which the above argument is based, is one which will not bear examination. When that constitution 
 provided that the legislature so convened in extraordinary occasions "should enter upon no business 
 except that stated in the proclamation by which it was called together," the people must be presimied
 
 844 
 
 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 § 633 
 
 to have liad in mind business to be transacted under authority of the State constitution, and not to have 
 intended to prohibit the performance of duties imposed upon it by the supreme authority of the 
 Constitution of the United States. 
 
 If the argument be sound that a legislative body which is prohibited from entering upon certain 
 classes of business, or which is confined to certain classes of business clearly legislative in their character, 
 is no legislature in the constitutional sense, its logic would require us to declare that the legislature of 
 every State whose bill of rights excludes it from large domains of legislation is no legislative body. If, 
 under the same provision of the Constitution of the United States, the act of Congi-ess had fixed a day 
 for holding elections for Representatives to Congress, and the State constitution or laws should prohibit 
 the assembling of the people for such elections on the day so fixed, it would, we suppose, be held clear 
 that the act of the State would be void and the authority of the act of Congress would prevail. 
 
 We can not see any difference between such prohibition of a State constituticm api)licable to the 
 constitutional electors of Senators, who are members of the State legislature, and the constitutional 
 electors of representatives, who are a body of electors authorized to vote for members of the most numer- 
 ous branch of the State legislature. 
 
 ^^'e are therefore clearly of opinion that the election of Mr. Faulkner at the special session of the 
 legislature of West Virginia was valid. 
 
 (2) As to the qualifications of Mr. Faulkner, the report holds: 
 
 It is insisted that Mr. Faulkner was ineligible to the office of Senator by reason of the provision of 
 the constitution of West Virginia : 
 
 "No judge during his term of office shall practice the profession of law or hold any other office, 
 appointment, or public trust, under this or any other government, and the acceptance thereof shall 
 vacate his judicial office. Nor shall he, during his continuance therein, be eligible to any political 
 office." (Art. VIII, sec. 16.) 
 
 But we are of opinion that no State can prescribe any qualification to the office of United States 
 Senator in addition to those declared in the Constitution of the United States. (See the debates on the 
 case of Mr. Trumbull, supra, p. 148.) 
 
 This provision, according to the settled rule of construction, must be so construed as to attribute 
 to it a meaning not inconsistent with the constitution of West Virginia. This can well and properly be 
 done by holding it to mean "eligible to office under the constitution of West Virginia." 
 
 Therefore the committee concluded : 
 
 We therefore find that Mr. Faulkner has been constitutionally elected to the seat in the Senate 
 made vacant by the expiration of the term of Mr. Camden and that he is entitled to take the oath. 
 
 We report the following resolutions: 
 
 Resolved, That Daniel B. Lucas is not entitled to a seat in the Senate from the State of West 
 Virginia. 
 
 Resolved, That Charles J. Faulkner has been duly elected Senator from the State of West Virginia 
 for the term of six years, commencing on the 4th day of March, 1887, and that he is entitled to a seat in 
 the Senate as such Senator. 
 
 The resolutions were agreed to without division. 
 
 Thereupon Mr. Faulkner appeared and took the oath. 
 
 633. The Senate election case of Addicks v. Kenney, from Delaware, 
 in the Fifty-fourth Congress. 
 
 The Senate gave immediate prima facie effect to credentials regular 
 in form, although a contestant presented irregular credentials. 
 
 On January 21, 1897,* in the Senate, Mr. William E. Chandler, of New Hamp- 
 
 ' Second session Fifty-fourth Congress, Record, p. 1004.
 
 § 633 COXFLICXING CBEDEiJ^IIALS. 845 
 
 shire, presented the following paper, which was referred to the Committee on 
 Privileges and Elections: 
 
 Delaware, ss: 
 
 Be it known that the legislature of the State of Delaware did, on the 20th day of January, in the 
 year of our Lord 1897, at an election in due manner held according to the form of the act of the general 
 assembly of said State in such case made and provided, choose John Edward Addicks to be a Senator 
 from said State in the Senate of the United States for the constitutional term from the 3d day of March, 
 in the year of our Lord 1895. 
 
 Given under our hands in obedience to the said act of the general assembly the day and year 
 aforesaid. 
 
 Robert J. Hanby, 
 
 Speaker of the Senate. 
 Thomas C. Moore, 
 Speaker of the House of Representatives. 
 Geo. W. Rogers, 
 
 Clerk of the Senate. 
 Chas. R. Hastings, 
 Clerk of the House of Representatives. 
 
 On February 5 ' Mr. George Gray, of Delaware, presented the credentials of 
 Richard W. Kenney as a Senator from the State of Delaware. The credentials were 
 read, as follows: 
 
 State of Delaware, Executive Department. 
 To the President of the Senate of the United States: 
 
 This is to certify that on the 19th day of January, in the year of our Lord 1897, Richard R. Kenney 
 was duly elected by the legislature of Delaware a Senator to represent said State in the Senate of the 
 United States, to fill a vacancy existing in the representation of said State for the term ending the 3d day 
 of March, X. D. 1901. 
 
 Witness his excellency, our governor, Ebe W. Tunnell, and our seal hereunto affixed, at Dover, 
 
 this 21st day of Januarj-, in the year of our Lord 1897, and of the Independence of the LTnited States of 
 
 America the one hundred and twenty-first. 
 
 Ebe \V. Tunnell. 
 By the governor: 
 
 \Vm. H. Brtce, Secretary of State. 
 
 Mr. Kenney being present, and the oath prescribed by law having been admiois- 
 tered to him, he took his seat in the Senate. 
 
 ilr. George F. Hoar, of Massachusetts, chairman of the Committee on Priv- 
 ileges and Elections, after referring to the fact that the Senate had declared Henry A. 
 Du Pont not entitled to the seat, and that the Committee on Privileges and Elections 
 had reported against reopening Mr. Du Font's case, said: 
 
 K it be true that Mr. Du Pont was not legally elected, or if it be true that that question has been 
 settled by a judgment of the Senate, it follows that there is a vacancy, and that there wa.s a vacancy 
 at the time of the alleged election of Mr. Kenney, in the office of Senator from the State of Delaware; 
 and there being a vacancy under the Constitution and statute of the United States, the credential in 
 due form, signed by the executive of that State, gives the gentleman who now applies for the seat a 
 prima facie title to the seat, subject, as has been suggested by my honorable friend from New Hamp- 
 shire, to reexamination on the merits hereafter, if that reexamination shall be desired. I therefore 
 assent to the request of the Senator from Delaware that the oath be administered. 
 
 ' Record, pp. 1559, 1560,
 
 846 PBECEDENTS OF THE HOUSE OF BEFKESENTATIVES. § 633 
 
 On March 19 ' Mr. Julius C. Burrows, of Micliigan, presented the petition of 
 John Edward Addicks, a citizen of the State of Delaware, setting forth that on the 
 20th day of January, 1897, by a majority of the duly elected and qualified members 
 of the senate and house of representatives of the State of Delaware, he was duly 
 elected a United States Senator to fill the vacancy in the United States Senate 
 occasioned by the expiration of the term of Anthony Higgins, and that he was 
 denied the usual and formal certificate of election to which he was entitled. 
 
 The memorial was referred. 
 
 ' Record, p, 66.
 
 Chapter XXI* 
 THE HOUSE THE JUDGE OF CONTESTED ELECTIONS. 
 
 1. Provision of the Constitution. Section 634.' 
 
 2. Fnnctions of Elections Committee. Sections 635, 636. 
 
 3. Hotise not bonnd by returns of State authorities. Sections 637, 638. 
 
 4. Belations of House to acts of canvassing officers. Sections 639-646.- 
 
 5. House ascertains intent of voter when ballot is ambiguous. Sections 646-660. 
 
 6. Discretion of House in investigating elections. Sections 651-663.^ 
 
 7. Practice in making decisions. Sections 654-656.* 
 
 8. Privileges of contestant and returned Member in debate. Sections 667-672.' 
 
 9. General practice. Sections 673-677.' 
 
 634. The House is the judge of the elections, returns, and qualifica- 
 tions of its own Members.—" Each House shall be the judge of the elections, 
 returns, and qualifications of its own Members."' 
 
 * See Volume VI, Chapter CLXII. 
 
 * House may not delegate this constitutional function. (Sec. 608 of this volume.) 
 Elections of Delegates as well as those of Members investigated. (Sec. 772 of this volume.) 
 
 ' House respects the State laws. (Sec. 822 of this volume, and sees. 967 and 1011 of Vol. II.) 
 As to duty of House to respect the construction of State laws made by State officers and courts. 
 (Sees. 346, 352, 423, 521, 525, 574, 608, 630, 731 of this volume, and sees. 856, 909, 959, 996, 1002, 1041, 
 1048, 1056, 1069, 1071, 1105, 1121 of Vol. II.) 
 
 ' House may set aside procedure prescribed by law for conducting contests and prescribe new 
 procedure in whole or in part. (Sees. 330, 339, 559, 597, 598 of this volume, and sees. 965, 1042, and 
 1070 of Vol. II.) But the House does not unnecessarily set aside the recommendations of the law. 
 (Sec. 719 of this volume and 852 of Vol. II.) 
 
 See also the cases of Letcher v. Moore (sec. 53) and Blakely v. Golladay (sec. 322). 
 
 * Senate decisions that an election case once decided is res adjudicata and not to be reopened. 
 (Sees. 344, 357, 546, 629, 825, 833.) House reopens the Mississippi case in 1837. (Sec. 518.) 
 
 Effect of laying on the table a resolution relating to the right of a Member to his seat. (Sees. 
 461, 467, 618.) 
 
 Effect of negative votes on affirmative declarations as to Member's right to his seat. (Sec. 2588 
 of Vol. III.) 
 
 ' Instance wherein the privileges of the floor were denied to a claimant to a seat. (Sec. 315.) 
 Senate declines to admit contestant to the floor (sec. 546); and also declines to hear contestant 
 in debate (sec. 392). 
 
 ' A contest was maintained although the returned Member had resigned. (Sec. 985 of Vol. II.) 
 A proposition relating to the right of a Member to his seat presents a question of privilege. 
 (Sees. 2.579-2596 of Vol. III.) 
 
 ' Constitution, Art. I, sec. 5. 
 
 847
 
 848 
 
 PRECEDENTS OF THE HOUSE OF BEPKESENTATIVES. 
 
 § 635 
 
 635. The House has declared that an election committee should act 
 as a judicial body, according to the rules of law. — On January 24, 1870/ Mr. 
 Albert G. Burr, of Illinois, proposed the following resolution : 
 
 Resohed, That from the nature of its duties the Committee of Elections of the House of Repre- 
 sentatives is a judicial body, and in deciding contested cases referred to such committee the members 
 thereof should act according to all the rules of law, without partiality or prejudice, as fully as though 
 under special oath in each particular case so decided. 
 
 A motion to lay this resolution on the table was decided in the negative, yeas 
 44, nays 129. 
 
 The resolution was then agreed to, yeas 140, nays 23. 
 
 At a later day in this session — February 9 ^ — this resolution was referred to in 
 debate, several Members explaining their attitude. 
 
 636. Instance wherein a Member of the House was authorized to act 
 as a member of the Elections Committee during the consideration of cer- 
 tain cases. — On December 7. 1869, the House adopted a resolution authorizing Mr. 
 Michael C. Kerr, of Indiana, to act as a member of the Committee on Elections in 
 the consideration of the pending election cases from the State of Louisiana.^ Mr. 
 Kerr had been a member of the committee in the preceding Congress. 
 
 637. The Georgia election case of Spaulding v. Mead in the Ninth Con- 
 gress. 
 
 The certificate of the governor of a State as to the election of a Mem- 
 ber is only prima facie evidence of the fact. 
 
 The certificate of a State executive, issued in strict accordance with 
 State law, does not prevent examination of the votes by the House, and a 
 reversal of the return. 
 
 Discussion of the House's right to judge of the elections and returns 
 of its Members, as related to State laws. 
 
 The Elections Committee in 1805 declined to examine a contention 
 sought to be established by ex parte testimony. 
 
 On December 18, 1805,* the Committee on Elections reported in the contested 
 election case of Spaulding v. Mead, of Georgia. The committee found that the law of 
 Georgia required the county magistrates presiding at the election to transmit their 
 returns to the governor of the State within twenty days after closing the poll; and 
 required the governor, within five days after the expiration of the said twenty days, 
 to count the votes returned, and immediately thereafter to issue his proclamation 
 declaring the result, and grant a certificate thereof under the great seal of the State. 
 The votes of three counties were not retiuned within the twenty days, nor within 
 the further term of five days thereafter. 
 
 The governor, complying with the terms of the law, issued a certificate to 
 Cowles Mead, who had a majority of the votes so far as received when the certificate 
 was issued. When the returns from the three counties were received it appeared 
 that they changed the result and gave the majonty to Thomas Spaulding. It does 
 
 ' Second session Forty-first Congress, Journal, p. 190; Globe, pp. 709, 710. 
 
 - Globe, pp. 1158-1160. 
 
 " Second session Forty-first Congress, Journal, p. 28; Globe, p. 22. 
 
 * First session Ninth Congress, Contested Elections in Congress from 1789 to 1834, p. 157.
 
 § 638 THE HOUSE THE JUDGE OF COIJTESTED ELECTIONS. 849 
 
 not appear that irregularities sufficient to change this majority for Mr. Spaulding 
 were alleged in the three counties. The committee dechned to examine the con- 
 tention sought to be estabhshed by ex parte testimony, and disputed by contestee, 
 that the delay in forwarding the late returns was caused by a hurricane which 
 injured the roads. 
 
 The committee found that, as the votes in the three coimties in question were 
 good and lawful, no action either by voters or candidate requiring their forfeiture, 
 they should be counted by the House, the certificate of the governor although made 
 in accordance with the State law being only prima facie evidence, and not con- 
 clusive on the House. 
 
 Therefore the committee reported that Cowles Mead was not entitled to the 
 seat, but that Thomas Spaulding was entitled to it. 
 
 The report was debated at length on the constitutional point as to what extent 
 the House was judge of the elections and returns of its own Members. It was con- 
 tended on the one side that the House must exercise its right in accordance -svith 
 the fixed rules of the State of Georgia, that State liaving the constitutional right to 
 prescribe them, and they being conclusive imtil revoked by Congress. On the other 
 hand, it was contended that the power of judging the returns was different from 
 the State power of determining time, place, and manner of elections. The law of 
 Georgia could only be considered as constituting the governor the organ of informa- 
 tion to this House, the only tribunal to which the returns can ultimately be made. 
 The fact that the governor had counted only a part of the votes could not prevent 
 this House counting all of them. The power of the House to judge could not be 
 concluded by a State law or executive. 
 
 The House decided, yeas 68, nays 53, that Cowles Mead was not entitled to the 
 seat; and by a vote of yeas 68, nays 53, that Thomas Spaulding was entitled to a 
 seat. 
 
 638. The New York election case of Golden v. Sharpe in the Seven- 
 teenth Congress. 
 
 Votes fairly and honestly given shovild not be set aside for the omis- 
 sion or error of the returning officer. 
 
 Instance wherein the House decided an election contest against a 
 returned Member who had not appeared to claim the seat. 
 
 On December 12, 1821,' the House concurred with the report of the Committee 
 on Elections in the case of Colden v. Sharpe, from New York, seating Mr. Colden 
 and declaring Mr. Sharpe not entitled to the seat. 
 
 It appeared that the majority of votes were cast for "Mr. Cadwallader D. 
 Colden," but that by errors of returning officers 220 votes were returned as for 
 "Cadwallader D. Colder" and 395 for "Cadwallader Colden," although all these 
 votes had reallj- been cast for the contestant under liis appropriate name, as was 
 shown by testimony. 
 
 The committee forbear to adduce arguments to show that votes fairly and 
 honestly given should not be set aside for the omission or mistake of a returning 
 officer. 
 
 ' First scBsion Seventeenth Congress, Contested Elections in Congress, from 1789 to 1834, p. 369. 
 .5994 — VOL 1—07 — —.54
 
 850 
 
 PEECEDENTS OF THE HOUSE OF BEPRESENTATIVES. 
 
 § 639 
 
 Mr. Sharpe, as appeared by testimony, was notified of the intention to contest 
 the seat, but took no testimony and made no resistance to Mr. Colden's claim. 
 Indeed, it did not appear affirmatively that Mr. Sharpe had obtained from the 
 governor of New York a certificate of election, but it was presumed that he had. It 
 appears that Mr. Sharpe did not take a seat in the House.' 
 
 639. The Virginia election case of McKenzie v. Braxton in the Forty- 
 second Congress. 
 
 The House may go behind the ballot to ascertain the intent of the 
 voter, so as to explain what is ambiguous or doubtful. 
 
 In dealing with ballots whereon occurs an error in a name, the limi- 
 tations of the House are very different from those of canvassing oflftcers. 
 
 Discussion as to the effect of the use of initials or the omission of a 
 middle letter of a name on a ballot. 
 
 On January 9, 1872,^ Mr. George W. McCrary, of Iowa, from the Committee 
 on Elections, submitted the report of the committee in the Virginia case of McKenzie 
 V. Braxton. 
 
 The official returns gave Lewis McKenzie 10,259 votes, Elliot M. Braxton 9,065, 
 E. M. Braxton 3,654, and L. McKenzie 935. The report says: 
 
 The board of canvassers decided that the votes set down in the above abstract as cast for E. M. 
 Braxton should be counted for the sitting Member, and that those set down in said abstract as cast for 
 L. McKenzie should be counted for contestant, and they awarded the certificate to the sitting Member. 
 It will be seen that if this decision of the board was correct, and if no votes are rejected for any other 
 cause, the majority of the sitting Member is 1,525 votes. 
 
 The contestant, among other things, denied the correctness of the decision, and 
 on this point the committee foimd that the case turned. The law as to the imper- 
 fect ballots is thus discussed : 
 
 The proof in this case clearly shows that the sitting Member is known throughout the district as 
 well by the name of E. M. Braxton as by that of Elliott M. Braxton, and that he is familiarly called 
 Elliott Braxton; also, that there is no other person in the district, except the sitting Member's infant 
 son, who bears the name of Elliott M. Braxton, E. M. Braxton, or Elliott Braxton, and that the sitting 
 Member was regularly nominated for Congress by the Democratic or conservative convention of the 
 district; that his letter of acceptance was signed E. M. Braxton; that he canvassed the district and was 
 the only person of the name of Braxton who was a candidate. These facts are not disputed by con- 
 testant; but we are asked to throw out a large number of votes, unquestionably cast in good faith for the 
 sitting Member, upon the purely technical ground that his name was printed upon the ballots E. M. 
 Braxton or Elliott Braxton, instead of Elliott M. Braxton. The grounds upon which the contestant 
 makes this claim seem to be — 
 
 1. That we are not permitted to look beyond the ballot to ascertain the voter's intent; and 
 
 2. That the ballots in question can not, upon their face, be held to have been intended for Elliott 
 M. Braxton. 
 
 It may, and doubtless is, sometimes necessary to sacrifice justice in a particular case in order to 
 maintain an inflexible legal rule, but all just men must regret such necessity and avoid it when possible 
 to do so. Your committee are clearly of the opinion that no such necessity exists here. So far from 
 demanding such a sacrifice of right the law as well as equity forbids it. 
 
 The contestant asks the House to apply the strict rule which has sometimes, though not always, 
 been held to govern canvassing officers whose duty is purely ministerial, who have no discretionary 
 powers, and can neither receive nor consider any evidence aliunde the ballots themselves. It is mani- 
 
 > Journal, pp. 4, 23, 682. 
 
 ' Second session Forty-second Congress, House Report No. 4; Smith, p. 19; Rowell's Digest, p. 265.
 
 § 639 THE HOUSE THE JUDGE OF CONTESTED ELECTIONS. 851 
 
 fest that the House, with its large powers and wide discretion, should not be confined within any such 
 narrow limits. The House possesses all the powers of a court having jurisdiction to try the question, 
 WTio was elected? It is not even limited to the powers of a court of law merely, but, under the Consti- 
 tution, clearly possesses the functions of a court of equity also. If, therefore, it were conceded that the 
 canvassers erred in counting for the sitting Member the votes cast for E. M. Braxton and Elliott Braxton, 
 it would not determine the question as to what the House should do. What, then, is the true rule for 
 the government of the House in determining what votes to count for the sitting Member? Your com- 
 mittee are clearly of the opinion that where the ballots give the true initials of the candidate's name 
 that is sufficient, and we, therefore, without hesitation, hold that the ballots given for E. M. Braxton 
 must be counted for the sitting Member. 
 
 Another objection, urged with much more zeal by contestant's counsel, is to the votes cast for 
 Elliott Braxton, 235 in number. These, it is urged, can not be counted for Elliott M. Braxton, the 
 sitting Member. Even if we were not permitted to look beyond the ballots themselves, we could have 
 little doubt as to our duty; but, under some circumstances, and for certain purposes, evidence outside 
 of the ballots themselves is admissible. It is true that no evidence aliunde can be received to contra- 
 dict the ballot, nor to give it a meaning when it expresses no meaning of itself; but, if it be ambiguous 
 or of doubtful import, the circumstances surrounding the election may be given in evidence to explain 
 it and to enable the House to get at the voter's intent. We see no reason why a ballot, ambiguous on 
 its face, may not be construed in the light of surrounding circumstances in the same manner and to the 
 same extent as a written contract. 
 
 Thereupon Cooley on Constitutional Limitations, Attorney-General v. Ely (4 
 Wis., 430), People v. Ferguson, (8 Cowan, 102), People v. Cook (14 Barbour, 259), 
 People V. Seaman (5 Denis, 409), and People v. Cicote (16 Mich., 283). The latter 
 case is quoted from at length. 
 
 The report then says: 
 
 The cases are numerous where an Imperfect ballot, by the aid of extrinsic evidence, can be made 
 clear and perfect. No harm can result from admitting such extrinsic evidence so long as it is only 
 admitted to cure or explain such imperfections and ambiguities as could be cured if they occurred 
 in the most solemn written instruments, and to this extent and no further would we carry it. Thus 
 guarded and qualified, the rule is most salutary and most just. 
 
 Since, therefore, the testimony clearly shows that the votes cast for Elliott Braxton were intended 
 for the sitting Member, we deem it our duty to count them for him. We might, with great propriety, 
 rest this ruling upon another and different ground. The doctrine is well settled that the law knows 
 but one Christian name, and accordingly the courts have uniformly held that the omission of the middle 
 name, or the initial thereof, is not a material or fatal omission. The following are among the authorities 
 upon this point: People v. Cook (14 Barb., 259, and same case, 4 Selden, 67), where this rule is applied 
 to a contested-election case very much like the one before us; Milk r. Christie (1 HQl, N. Y., 102); 
 Bratton v. Seymour (4 Watts, Pa., 329); Franklin r. Talmadge (5 Johns., 84). 
 
 The sitting Member might with safety have relied upon this doctrine and insisted that the ballots 
 cast for Elliot Braxton designated Elliott M. Braxton with sufficinet certainty. He has, however, 
 gone further, and proved the facts necessary to show clearly that such designation was intended by 
 the voters. 
 
 Contestant insists that the committee and the House ought to adopt and follow an opinion given 
 in 1860 by the attorney-general of Virginia to the then governor of that State, and which it is insisted 
 covers the question now under consideration. An examination of that opinion will show that the 
 question decided by the attorney-general was not the same as that now before us. 
 
 Where a wrong initial is given, the case is, of course, very different from one where the first name 
 is correctly given and the middle initial omitted; and so, if the Christian name is given as Anthony 
 when it should have been Andrew, or where the surname is erroneously given. These are very dif- 
 ferent questions from the one before us, which is simply whether votes for E. M. Braxton and for Elliot 
 Braxton shall be counted for Elliott M. Braxton. We leave out of view, for the present, votes cast 
 for C. M. Braxton and Braxton. The opinion of the attorney-general, then, does not cover this case. 
 
 But a further and still more conclusive answer to this position of contestant is found in the fact
 
 852 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 640 
 
 that the opinion of the attorney-general was given to an executive officer to guide him in the discharge 
 of purely ministerial duties, and not intended to be a rule for the guidance of courts or legislative bodies 
 in the exercise of their judicial functions. The opinion in question may, and possibly does, lay 
 down the correct rule for the government of ministerial officers whose powers are limited to a consid- 
 eration of what appears upon the face of the returns themselves; but, as we have already seen, a very 
 different rule applies when the parties in interest come before a body clothed with full power to pass 
 upon their rights in the light not only of the returns themselves, Ijut of all cnrnpctent evidence. 
 
 640. The election case of McKenzie v. Braxton, continued. 
 
 The contestant in an election case must confine his proof to the allega- 
 tions of his notice. 
 
 In the absence of any statutory prohibition and no injury being 
 shown to complainant, the numbering of the ballots was held not to 
 invalidate the election. 
 
 The failure of an officer to certify properly a return does not prevent 
 the admission of secondary evidence to prove the actual state of the vote. 
 
 The committee also passes on the following questions not vital to the determina- 
 tion of the case — 
 
 1. The contestant objected to the vote of certain precincts because the ballots 
 were numbered, and in his argument included Murkham precinct, which was not 
 mentioned in the notice of contest. "The House has often held," says the report, 
 "that the contestant must confine his proof to the allegations of his notice." 
 
 2. The " numbering of the ballots cast at an election, in the absence of a statute 
 expressly so declaring, does not of itself invalidate an election, unless some injury 
 is shown to have resulted to the party complaining." The former Virginia law had 
 required the numbering of the ballots, and at a few precincts the officers, imaware of 
 the repeal of the law, continued the practice. Although this mmibering rendered 
 it possible to show how each person voted, it is not claimed that it was done in this 
 case, or that the tickets were numbered for any such purpose or for any improper or 
 unlawful purpose. Therefore the committee concluded that the votes should not 
 be thrown out. 
 
 3. As to the failure to certify certain returns, the report says: 
 
 Of course the returns of an election must be certified by the proper officers. If not so certified, 
 they prove nothing, and when offered in evidence, if objected to, they must be rejected. It was so 
 held by the House in Barnes v. Adams in the last Congress. It does not, however, necessarily follow 
 that the vote cast at such an election is lost or thrown away. An uncertified return does not prove 
 what the vote was — that is all. The duly certified return is the best evidence, but if it be shown that 
 this does not exist, we doubt not secondary evidence would be admissible to prove the actual state of 
 the vote. The failure of an officer, either by mistake or design, to certify a return, should not be allowed 
 to nullify an election, or to change a result, if other and sufficient and satisfactory evidence is forth- 
 coming to show what the vote actually was. 
 
 In accordance with their findings the committee reported a resolution con- 
 firming the title of sitting Member to the seat. 
 
 On January 18 ' the resolution was agreed to without debate or division. 
 
 641. The South Carolina election case of Lee v. Rainey in the Forty- 
 fourth Congress. 
 
 While canvassing officers must return votes as they are cast, the 
 House is not bound by the return. 
 
 ' Journal, p. 182; Globe, p. 470.
 
 § 64:1 THE HOUSE THE JUDGE OF CONTESTED ELECTIONS. 853 
 
 The House may go behind the ballot to ascertain the intent of the 
 voter so as to explain what is ambiguous or doubtful. 
 
 The name of a candidate being written wrongly on a ballot, the House 
 examined testimony as to the intent of the voter. 
 
 On May 24, 1876,' Mr. John T. Harris, of Virginia, submitted the report of the 
 committee in the South Carolina case of Lee v. Rainey. The report says: 
 
 In tliis case the main question to be determined is, whether 669 ballots bearing "J AS H 
 RAIN E Y," in the county of Georgetown, were intended for and cast for "Joseph H. Rainey," for 
 if those ballots are counted for Joseph H. Rainey, then he has a decided majority and is duly elected; 
 while, on the other hand, if the same are not counted for hun he is not elected. As this question is 
 clearly decisive of the case, the committee have not deemed it necessary to consider the other questions 
 raised by the notice of contest and answer. There is a question of law and a question of fact involved. 
 The question of law is, whether the House can look beyond the ballot to ascertain the voter's intent. The 
 committee think it clear, although canvassing officers charged with purely ministerial duties may not 
 go outside of the ballot, whatever may be the defect in the same, but must make their return upon the 
 ballots as they appear on their face, that the House, as the final judge of the elections, returns, and 
 qualifications of its Members, has not only the right but the duty, when a ballot is ambiguous or of 
 doubtful import, to look at the circumstances surrounding the election explaining the ballot, and to 
 get at the intent and real act of the voter. 
 
 This will not give the right to contradict the ballot itself, but simply to explain what is uncertain 
 and ambiguous in reference to it. This rule of law has become too well settled to admit of question. 
 (McCrary on Elections, chap. 7, and cases there cited; Gunter v. WUshire, first session Forty-third 
 Congress, Report 631. i 
 
 Such being the law, the remaining question is purely one of fact, ^•iz: For whom did those who 
 cast the ballots "J AS H RAINEY'' intend to vote and for whom did they vote? WTiat are the 
 facts upon this point? It appears that only two candidates were nominated, viz: Samuel Lee and 
 Joseph H. Rainey. No other persons appear to have been named in connection with the office of Repre- 
 sentative to Congress from that district. There is no pretense that any person by the name of James H. 
 Rainey, other than Joseph H. Rainey. was a candidate for that office, and it is not seriously contended 
 by any one that any person who cast the ballot "J A S H R A I N E Y" cast it intentionally for any 
 other than Joseph H. Rainey, the sitting Member. 
 
 The evidence clearly shows that the ballots printed "J AS H RAINEY'' were printed for 
 "Joseph H. Rainey," and the fact that such was the case was explained to the voters to whom the 
 tickets were given by the party who had them printed. (Evidence of Joseph Bush, p. 27; Charles H. 
 Sperry, p. 28.) There is no evidence in this case showing that there was at the time of the election any 
 man in the district by the name of James H. Rainey, who was eligible to the office of Representative to 
 Congress, or who had ever been spoken of for that office, or that any person did vote for "James H. 
 Rainey." except one Russell Green (p. 41), and he testified "that he did not know that Joseph H. Rainey 
 was running," and thensays "that he had made up his mind before going to the poll that he did not intend 
 to vote for Joseph H. Rainey." His evidence is not of such a character as to entitle it to weight, and 
 your committee are far from being satisfied that he ever knew that the name " J A S H RAINEY" 
 was upon the ticket he voted. The fact that no person by the name of Rainey other than Joseph H. 
 Rainey was named in connection with the office of Representative to Congress Ls a fact entitled to the 
 greatest weight in determining the intent of the voter. 
 
 The report goes on to say that it is clear that those who voted for Jas. H. 
 RaLaey did it ignorantly or with the intention of casting blank ballots. It could 
 not be presumed that 669 voters thus intended to cast blank ballots. And the 
 evidence showed clearly that they intended to vote for sitting Member. The 
 report says: 
 
 If this House can not consider at all the surrounding circumstances attending the election to 
 learn the intention of the voter, then how is it to determine the identity of the person voted for? How 
 
 ' First session Forty-fourth Congress, House Report No. 578; Smith, p. 589; RoweU's Digest, p. 313.
 
 854 PBECEDENTS OF THE HOUSE OF REPKESENTAXIVES. § 642 
 
 will it determine between two men of the same name if it can not look to the surrounding circumstances 
 to determine who was voted for? The House must, in such a case, certainly look to something besides 
 the face of the ballot; it must inquire into the intent of the voter. It would, indeed, be a singular 
 position for this House to assume that, because there are two men bearing the same name as the one 
 voted for in a district, it has no power to determine who was voted for or elected. If it can not, how 
 can it determine the elections, returns, and qualification of its Members? It has always examined 
 into the intent of the voter when it did not clearly appear by the face of the ballot, where it could be 
 done without contradicting the ballot. 
 
 The report then quotes the cases of Gunter v. Wilshire and McKenzie v. Broxton, 
 and further says: 
 
 The decision of the committee to count these votes for Joseph H. Rainey can be fully sustained 
 upon the ground that Joseph H. Rainey was, on election day, in the county of Georgetown, known by 
 the name "JAS H RAINEY" as well as by the name Joseph H. Rainey. There is evidence that 
 the voters were so informed at the polls; were informed that JAS H RAINEY was the same as 
 Joseph H. Rainey, and there is every reason to believe that the voters so regarded it, and in a criminal 
 case this would be evidence tending to show that he was known by the one name as well as by the other, 
 and upon this evidence the House has not only the right, but is bound so to find, if satisfied of the fact. 
 Your committee believe that great injustice will be done the First district of South Carolina should the 
 House, where there is really no serious question made by any one but that the ballots for "JAS H 
 RAINEY" were intended for Joseph H. Rainey, fail to count them for him. 
 
 The report further points out that there is equal reason for the decision which 
 is reached, if the name was printed wrong with fraudulent intent. 
 
 Therefore the committee report a resolution confirming title of sitting Mem- 
 ber to the seat, and on June 23 ^ the House agreed to the resolution without debate 
 or division. 
 
 642. Declaration of a House committee that returning boards with 
 judicial authority are dangerous. — In a report submitted on March 3, 1879," 
 Mr. Clarkson N. Potter, of New York, from the committee appointed to investigate 
 alleged frauds in the Presidential election of 1876, included the following: 
 
 When the Democrats recovered control of Louisiana they abolished the returning board, and 
 there no longer exists in the United States any tribunal having discretion to receive or reject at pleasure 
 the votes cast. No such body ought ever again to be permitted. If the wisdom of the fathers and the 
 experience of free government have settled anything, it is the necessity of keeping the functions of 
 judging and of administering the laws separate. No tribunal ought to be clothed with such a discretion; 
 no persons ought to be trusted with absolute powers, upon the exercise of which the success of their 
 own party and their own power and that of their friends depend. 
 
 643. The Texas election case of Houston v. Broocks in the Fifty- 
 ninth Congress. 
 
 The House does not change the returned result of an election because 
 of frauds and irregularities unless they be sufficient to change the result. 
 
 Instance wherein an elections committee considered a question not 
 raised in the notice of contest. 
 
 The name of a candidate for United States Senator on the ballot w^as 
 held not to be such distinguishing mark as would destroy the secrecy of 
 the ballot. 
 
 'Journal, p. 1143; Record, p. 4076. 
 
 ^ Third session Forty-fifth Congress, House Report No. 140, p. 64.
 
 § 644 THE HOUSE THE JUDGE OF CONTESTED ELECTIONS. 855 
 
 On June 23, 1906/ Mr. M. E. Driscoll, of New York, from the Committee on 
 Elections, No. 3, submitted the report of the committee in the case of Houston v. 
 Broocks, from Texas. As to the status of the case, the report says: 
 
 The said election took place on the 8th day of November, 1904. Thereafter the votes cast at said 
 election for the office of Representative in Congress were counted and canvassed, and as the result of 
 said count and canvass, the Hon. M. L. Broocks, the contestee, was declared to have received 13,119 
 votes, and in like manner the Hon. A. J. Houston, the contestant, was declared to liave received 4,161 
 votes, and in pursuance of said count and canvass the Hon. M. L. Broocks received the certificate of 
 election by a plurality of 8,958 votes. 
 
 Three questions were involved in decision: 
 
 1. The committee, without dissent, held as follows as to the merits of the 
 election: 
 
 WhUe there was some evidence of fraud, irregularity, and intimidation in several of the counties 
 of said district, your committee is of the opinion that such frauds, irregularities, and intimidations, sepa- 
 rately or combined, were not so gross, general, or far-reaching as to account for the large plurality of votes 
 cast and counted for the contestee, and your committee does not feel justified in rejecting a sufficient 
 number of the votes cast for the contestee on these grounds to give the contestant a plurality, nor is your 
 committee of the opinion that the refusal of Democratic officers empowered by law to appoint judges and 
 clerks of elections, to appoint Republican judges and clerks where requested by Republican voters so to 
 do, justifies it in rejecting a sufficient number of votes which were cast and counted for the contestee to 
 give the contestant a plurality and to say that he was under the law fairly elected Representative in 
 Congress from said district. 
 
 2. The next question was one which was not referred to in the notice of contest, 
 but which the committee nevertheless notice in their report : 
 
 The point is made in the evidence and in contestant's brief that all the Democratic ballots cast in 
 the Second Congressional district of the State of Texas were Ulegal, invalid, and void, for the reason 
 that on them appeared the name of C. A. Culberson fur United States Senator, on the ground that this 
 was a distinguishing mark or device. The names of party candidates for United States Senator were not 
 on other party tickets, and it is claimed that this was a distinguishing mark or device. With this claim 
 we can not agree. The words, "For United States Senator, C. A. Culberson," were no more a distin- 
 guishing mark or device than were the words, "For Congressman, Second district, M. L. Broocks." 
 
 Both names were on the same ticket next to each other. The names of all the State Democratic 
 electors were on the same ticket. It was the intention to give notice to all that it was the regular 
 Democratic ticket for that district, for the words, "Official ballot. Democratic party," were distinctly 
 written at the top of the ticket above all the names. It is difficult to see how the name of Senator 
 Culberson could distinguish and identify those ballots, which were without that fully identified and 
 distinguished from all others. This name can hardly be said to be a "picture, sign, vignette, device, or 
 mark," and did not disclose the secrecy of the ballot. This point is very technical, and is not mentioned 
 in the notice of contest. Election contests should be decided on the substantial merits. The will of 
 the electors as expressed in their ballots should be recognized and respected, and your committee does 
 not believe that all of the ballots cast for the contestee in said election should be rejected on account of 
 this error, which did not affect the result. 
 
 644. The case of Houston v. Broocks, continued. 
 
 It being charged that the State laws establishing qualifications of 
 voters violated the reconstruction laws and the Constitution of the 
 United States, a divided committee considered the question one for the 
 courts. 
 
 •First session Fifty-ninth Congress, Record, p. 9036; House Report No. 4998.
 
 856 PKECEDENTS OF THE HOUSE OF KEPKESESTTATIVES. § 644 
 
 The laws of Texas have a poll-tax qualification for suffrage, which 
 discriminates between residents of the city and the country. 
 
 The validity of the election laws of a State being impeached and the 
 question not being determined, the House declared a contestant not 
 elected, but did not affirm the title of returned Member, who had a major- 
 ity of the votes cast. 
 
 3. The real issue in the case was set forth by the majority of the committee: 
 
 Tte serious question for the consideration of your committee and of the House in the determination 
 of this contest is involved and set forth in the first and second counts in the notice of contest. These 
 counts may be considered together, because each of them questions the constitutionality of the election 
 law of the State of Texas, which was approved April 1, 1903, and under and in pursuance of which the 
 elections in the State of Texas were conducted in the year 1904. That law makes the payment of a poll 
 tax a necessary qualification for the right to vote by any citizen or class of citizens of the United States. 
 That poll tax in cities of 10,000 inhabitants or upward, is $2.75, and in small towns and rural districts 
 $1.75, and it must be paid on or before the 1st day of February to enable the person paying it to vote at 
 the following November election. In this particular case no man otherwise qualified to vote for Repre- 
 sentative in Congress was permitted to vote on the 8th day of November, 1904, unless he had paid his 
 poll tax on or before the 1st day of February, 1904, and produced his receipt for such payment, or other- 
 wise proved that he had paid it. 
 
 It is claimed by the contestant that this law is illegal, invalid, and unconstitutional, because it is in 
 direct conflict with and in violation of the act of Congress approved March 30, 1870, as follows: 
 
 AN ACT to admit the State of Texas to representation in the Congress of the United States. 
 
 Whereas the people of Texas have framed and adopted a constitution of State government, which is 
 Republican; and whereas the legislature of Texas, elected under said constitution, has ratified the 
 fourteenth and fifteenth amendments to the Constitution of the United States; and whereas the perform- 
 ance of these several acts in good faith is a condition precedent to the representation of the State in 
 Congress: Therefore 
 
 Be it enacted by the Senate and House of Representatives of the United States of America in Congress 
 assembled, That the said State of Texas is entitled to representation in the Congress of the United 
 States. * * * 
 
 * * * And provided further, That the State of Texas is admitted to representation in Congress 
 as one of the States of the Union upon the following fundamental conditions: First. That the constitution 
 of Texas shall never be so amended or changed as to deprive any citizen or class of citizens of the United 
 States of the right to vote who are entitled to vote by the Constitution herein recognized, except as a 
 punishment for such crimes as are now felonies at common law, whereof they shall have been duly 
 convicted under laws equally applicable to all the inhabitants of said State: Provided, That any altera- 
 tion of said constitution prospective in its effects may be made in regard to the time and place of 
 residence of voters. * * * 
 
 It is also claimed by the contestant that this poll-tax qualification for citizens of the United States 
 violates the fourteenth and fifteenth amendments of the Federal Constitution. It is further alleged 
 that the enforcement of this poll-tax law disqualified and prevented from voting a very large number 
 of colored voters, citizens of the United States, who would except for this law and its enforcement have 
 been qualified to vote for Representative in Congress at the election held on the 8th day of November, 
 1904; that the overwhelming majority of those colored voters who were disfranchised by said poll-lax 
 law and its enforcement were Republicans, and would have voted for the contestant at said election, 
 and that were it not for said poll-tax law and its enforcement the contestant would have received a 
 majority of the votes cast at said election and would have been duly elected as Representative in Con- 
 gress from said Congressional district. 
 
 These allegations and the evidence taken under them directly question the constitutionality of 
 the Texas constitution adopted in the year 1902, and the Texas election law passed in the year 1903, 
 and applied to the election in this particular case. If this Committee on Elections and the House of 
 Representatives should hold that the election laws of the State of Texas are violative of the Federal
 
 I 644 THE HOUSE THE JUDGE OF CONTESTED ELECTIONS. 857 
 
 Ck)iistitution, the conclusion would necessarily follow, not that the contestant was elected, but that the 
 whole election was null and void, and that the Second Congressional district of the State of Texas is 
 not entitled to representation in Congress. 
 
 This is the only election contest from that State before the House of Representatives for determi- 
 nation. But the decision in this case, construing the election laws of the State of Texas, applies to 
 the whole State, and if the contestee in this particular case is not legally entitled to retain his seat, 
 then none of the sixteen Representatives from that State are legally entitled to seats on the floor of this 
 House, and none of them will in the future be entitled to seats if elected under the present law in their 
 State. Therefore the gravity of the question involved in this particular case is manifest. Texas is 
 one of the great States of the Union, and is entitled to its full delegation in Congress. But its consti- 
 tutican and laws should conform to the Constitution and laws of the United States so as to leave no cloud 
 on the title of that delegation to their seats. 
 
 Your committee appreciates the unusual responsibility which devolves on it in the determination 
 of this question, and each Member has applied himself to its consideration with as much honesty, 
 patriotism, and ability as he possessed. If we declared this election void and our report were confirmed 
 by the House, all the Representatives from that State, and the State itself, would suffer a great and 
 irreparable wrong. On the other hand, if this House should adopt a resolution that the contestee was 
 duly elected Representative in Congress from the Second Congressional district, with reference to 
 which several members of this committee, at least, entertain grave doubt, that action would stamp 
 with approval the present constitution and election laws of the State of Texas. We have therefore 
 concluded to follow neither course. 
 
 We report that the contestant was not elected, but do not report that the contestee was elected. 
 We are silent on that phase of the case. We realize that we may be accused of shirking our responsi- 
 bUity. To this we answer that the responsibility is so great, and the consequences of a mistake would 
 be so serious and far-reaching, that we respectfully request that this important question be referred 
 to the Supreme Court of the United States for their decision. Your committee is aware that a decision 
 in this case concerns not alone the State of Texas. That many other, if not all, of the reconstructed 
 States have in recent years adopted constitutions and enacted election laws which are claimed to be 
 in violation of the Federal Constitution and laws. That election contests are brought before every 
 Congress, predicated on the alleged violation of the Federal Constitution and laws by the constitutions 
 and laws of the States from which these contests come. All those questions are substantially alike, and 
 a decision in this case would be a precedent in many others which may arise. 
 
 We ha,ve precedents which may be considered authority for our action in this case, which in effect 
 advise the reference of this constitutional question to the Supreme Court. In the last Congress, two 
 years ago, the contested election case of Prioleau v. Legare, from the State of South Carolina, was referred 
 to this committee. The question presented in that case was substantially the same as the one in this. 
 While the constitution and election laws of the State of South Carolina are not exactly like those of 
 Texas, the constitutionality of the election law was raised, and the question was practically the same 
 as the one under consideration. This committee advised the contestant, Mr. Prioleau, and his counsel 
 to make a case and present the question to the courts for determination, and did not submit a report or 
 resolutions to the House. 
 
 Also, in the last Congress, the contested election case of Dantzler v. Lever, from South Carolina, 
 involving exactly the same questions, was referred to the Committee on Elections No. 1. That com- 
 mittee submitted a resolution, which was adopted by the House, that the contestant was not elected, 
 and the report, written by the chairman, Mr. Mann, of Illinois, recommended that the constitutional 
 question he referred to the Supreme Court for decision. Four contested election cases were brought 
 from the same State to this Congress, all of which were referred to the Committee on Elections No. 1, 
 and we are informed that the same disposition will be made of them. Since the questions in those cases 
 are exactly the same as the one raised two years ago in Dantzler v. Lever, no other conclusion can be 
 expected. Therefore, this committee, in order to be consistent with its action in the last Congress, and 
 in deference to the decision of the House in the other cases referred to, notwithstanding the individual 
 opinions of some of its Members, feels constrained to submit this report and the resolution in pursuance 
 thereof. 
 
 If this House, with its large Republican majority, should declare the election held in the Second 
 Congressional district of Texas void and unseat the contestee in this case, such action would very likely
 
 858 
 
 PKECEDENTS OF THE HOUSE OF EEPEESENTATIVES. 
 
 § 644 
 
 be looked upon as a partisan decision. And if perchance the next Congress should have a Democratic 
 majority and the same question should arise, the strong probabilities are that it would be decided the 
 other way. Such conflicting decisions would lead only to confusion, uncertainty, and possibly to more 
 serious consequences. The Supreme Court is a continuing body. We are led to believe that the mem- 
 bers thereof are not influenced by political considerations; that partisan spirit is eliminated as far as 
 possible. The people respect that tribunal and bow with deference to its judgments. The constitu- 
 tional questions presented by the election laws of Texas and other reconstructed States should be 
 submitted to that court for final determination. Such a decision would be recognized by the people 
 of those several States and by the Congress as the law of the land, and would be a positive benefit 
 to all concerned. 
 
 If the election laws of Texas are violative of the Federal Constitution and the reconstruction acts, 
 those laws should be repealed or so amended as to conform with the decision and opinion of the Supreme 
 Court. If they should be held to be legal and valid, then its Representatives would hold their seats 
 without any question or cloud on their titles. Furthermore, the Democrats as well as the Republicans 
 of that great State and other States similarly situated should unite and assist one another in submitting 
 those issues to the Supreme Court, and in obtaining from that great tribunal a comprehensive and 
 positive decision on their merits, in order that those people may know what are their political rights. 
 
 Mr. Henry Bannon, of Ohio, did not concur in the opinion of the committee, 
 but filed minority views, as follows: 
 
 It seems to me that the propositions to be considered in this case are the following: 
 
 1. Texas was admitted to representation in Congress as a State of the Union under the provisions of 
 an act of Congress approved March 30, 1870, by the terms of which it was provided, as a fundamental 
 condition to admission — 
 
 "That the constitution of Texas shall never be so amended or changed as to deprive any citizen or 
 class of citizens of the United States of the right to vote who are entitled to vote by the Constitution herein 
 recognized, except as a punishment for such crimes as are now felonies at common law, whereof they 
 shall have been duly convicted under laws equally applicable to all the inhabitants of said State." 
 
 2. On July 28, 1868, the proclamation was issued that the fourteenth amendment had been ratified. 
 Section 2 of said amendment reads as follows: 
 
 "Representatives shall be apportioned among the several States according to their respective 
 numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when 
 the right to vote at any election for the choice of electors for President and Vice-President of the United 
 States, Representatives in Congress, the executive and judicial officers of a State, or the members of the 
 legislature thereof is denied to any of the male inhabitants of such State, being twenty-one years of age, 
 and citizens of the United States, or in any way abridged, except for participation in rebellion or other 
 crime, the basis of representation therein shall be reduced in the proportion which the number of such 
 male citizens shall bear to the whole number of male citizens twenty-one years of age in such State." 
 
 3. On April 1, 1904, Texas enacted a law making the payment of a certain poll tax on or before 
 February 1 preceding the November election a condition precedent to the right to vote. This legislation 
 has deprived some citizens of the United States residing in Texas of the right to vote. 
 
 It is contended in this case that Texas has deprived herself of the right to any representation in 
 Congress; but, if not, that the contestant was duly elected as a Representative from that State. 
 
 There is nothing in the proof that would warrant a finding that contestant was elected. That is 
 sufficient to dispose of that contention. 
 
 I do not think that the present election laws of Texas deprive that State of all representation in 
 Congress. If these laws deprive some of her citizens of the right to vote, the remedy is not to deny all 
 representation in Congress, but the remedy is found in the second section of the fourteenth amendment. 
 That remedy, I think, is exclusive of all others. If Texas has deprived some of her citizens of the right 
 to vote, her representation in Congress should be proportionately reduced. 
 
 The obligation to do this is with Congress, and not the judiciary. In the case of Giles v. Board of 
 Registration (189 U. S., 488), decided by the Supreme Court of the United States on April 27, 1903, the 
 court, in the Alabama election-law case, said: 
 
 "Apart from damages to the individual, relief from a great political wrong, if done as alleged, by
 
 § 645 THE HOUSE THE JUDGE OF CONTESTED ELECTIONS. 859 
 
 the people of a State, and the State itself, must be given by them or by the legislative and political 
 departments of the Government of the United States." 
 
 In my opinion there is nothing in these cases that can be submitted to the comrts. The obligation 
 is upon the legislative department of the Fedreal Government to ascertain whether the right to vote has 
 been denied any of the citizens of Texas, and if so, its representation in Congress should be reduced 
 proportionately. 
 
 In accordance with their conclusions, the majority of the committee recom- 
 mended this resolution, in which Mr. Bannon also concurred: 
 
 Resolved, That A. J. Houston was not elected a Member of the Fifty-ninth Congress from the Second 
 Congressional district of Texas and is not entitled to a seat therein. 
 
 The resolution was agreed to without debate or division. 
 
 645. The election case of the California Members in the Forty-ninth 
 Congress. 
 
 After examination of precedents the Committee on Elections and the 
 House followed the interpretation of a State law given by the highest 
 court of the State. 
 
 On May 11, 1886,' Mr. Robert Lowry, of Indiana, presented the report of the 
 Committee on Elections in the California case. The report states the case thus: 
 
 It is claimed on behalf of contestants that the votes cast at the Congressional elections of the 4th 
 day of November, 1884, in the State of California, should have been compared and estimated under the 
 apportionment law existing in that State prior to the 13th day of March, 1883, and not in accordance 
 with the act of the legislature of that State of the day named, entitled "An act to divide the State of 
 California into Congressional districts." Under the prior law the State was divided into four districts, 
 with two Representatives at large. Under the latter act the State was apportioned into six Congressional 
 districts, each one of which was entitled to one Representative, and none at large. In order to sustain 
 the contention of the contestants, it is obligatory upon them to show that the act of March 13, 1883, is 
 invalid, and this they attempt to do. 
 
 The claim is that this act was not passed in accordance with section 15, Article IV, of the State 
 constitution, which requires that every bill should be read on three several days in each home. 
 
 Passing by a number of immaterial points upon which testimony was taken in this contest, we 
 proceed at once to the substantial ground urged against the sitting Members. That, we think, has been 
 fully and definitely settled in a decision of the supreme court of the State of California in a case reported 
 in volume 8, West Coast Reporter, page 29, entitled "People, ex rel. Leverson, v. Thompson, secretary 
 of state." 
 
 After quoting in full the opinion, the report proceeds: 
 
 T* .«C11 1 — •, *\^^t- *l.^. { :. — i:__i! 1 ii. 
 
 It wiU be seen that the foregoing case was an application by these contestants to the supreme 
 coiu-t of the State of California for a writ of mandate to compel the secretary of state to compare and 
 certify to the votes cast at the last elections, in accordance with the law in force in California prior to 
 the passage of the act the validity of which is brought in question by this contest. 
 
 It is not denied in this case that the bill itself was read in accordance with the constitutional pro- 
 visions, but it is said that there was an amendment thereto which should also have been read "upon 
 three several days." 
 
 The Miller case was presented for decision in the State of Ohio, entitled "Miller v. The State" 
 (3 Ohio St. Rep., 479). The point was very satisfactorily disposed of by Judge Thurman, who was 
 then upon the supreme bench of that State. He admits in his decision that there might be some 
 plausibility in the argument that an amendment radically changing the subject-matter should be read 
 three times, the same as a bill, but holds that to bring an amendment within that objection it should 
 be of such a character as to change the subject or proposition of the bill wholly, and where the amend- 
 
 ' First session Forty-ninth Congress, House Report No. 2338; Mobly, p. 481.
 
 860 PEECEDENTS OF THE HOUSE OF EEPKESENTATIVES. § 646 
 
 ment does not effect any such radical change in the purpose, aim, and scope of the bill, that it does 
 not come within the constitutional requirement that it should be read three times. 
 
 The decision cited of the full bench of the supreme court of the State of California seems to be 
 fully definitive of the principles involved here. Such being the case, your committee, in conformity 
 with an almost invariable rule, follow the construction of the statutes given by the court of last resort of 
 the State from which the cases come. 
 
 Such is the rule of the Supreme Court of the United States, and we do not perceive why one so 
 well based upon reason and common sense should be departed from in this case. 
 
 In Leavenworth v. Barnes (94 U. S. Rep., 70), the validity of a statute of the State of Kansas being 
 assailed as having been improperly passed, the Supreme Court said: 
 
 "The recent decision upon this identical statute by the supreme court of Kansas, in a suit against 
 this county, relieves us from all embarrassment upon this question. It gives effect and construction 
 to one of its own statutes, and, according to well-settled rules, will be followed by this court." 
 
 In support of this rule of construction a number of well-considered cases are cited in the opinion. 
 
 The same rule has been followed by the House of Representatives in election contests. In the 
 matter of the election of a Representative from the State of Tennessee, in the Forty-second Congress, 
 the Elections Committee said: 
 
 " It is a well-established and most salutary rule that when the proper anthorities of the State gov- 
 ernment have given a construction to their constitution and statutes, that construction will be followed 
 by the Federal authorities. This rule is absolutely necessary to the harmonious workings of our com- 
 plex government. State and national, and your committee are not disposed to be the first to depart from 
 it. In the case of Birch v. Van Horn (2 Bartlett, 205) the House refused to go into an inquiry as to the 
 validity of the new constitution of Missouri, upon the ground that it had been recognized as valid by all 
 the departments of the State government." 
 
 While the conclusion arrived at by Justices Ross and Myrick is not authority to the full extent to 
 which the opinion of the full bench is thus recognized, we present their views as embodying what we 
 regard to be a reasonable construction of that clause of the constitution of California bearing upon the 
 question raised. It is one, we think, which we would not hesitate to adopt did the controversy turn 
 upon the question of constitutional construction alone. 
 
 This disposes of everything requiring notice in these cases. 
 
 The contestants only received a vote running from six to fifty each, and upon no ground that 
 would be recognized under any rule of law, or commend itself to any principle of justice, can either one 
 of the contestees be unseated. Even if they could, it is quite clear that no one of the contestants is 
 entitled to a seat. 
 
 Your committee therefore recommend the adoption of the following resolutions: 
 
 Resolved, That Barclay Henley, James A. Loutitt, Joseph McKenna, \V. W. Morrow, Charles N. 
 Felton, and H. H. Markham were duly elected as Representatives from the State of California to the 
 Forty-ninth Congress, and are legally entitled to their seats. 
 
 Resolved, That Alexander M. McKay, Montague R. Leverson, and Archibald McGrew were not 
 elected as such Representatives, and are not entitled to seats in this body. 
 
 The resolutions were agreed to in the House without debate or division.' 
 
 646. The Massachusetts election case of Turner v. Baylies in the 
 Eleventh Congress. 
 
 The House held that ballots wherein the word " junior " was omitted 
 from the candidate's name should be counted on proof that they were 
 intended for the candidate. 
 
 The House unseated a person returned as elected at a second election 
 on ascertaining that another person had actually been chosen at the first 
 election. 
 
 Instance of a House election contest instituted by petition. 
 
 'Journal, p. 1.571.
 
 § 647 THE HOUSE THE JUDGE OF CONTESTED ELECTIONS. 861 
 
 One of the parties to an election case having failed to attend the tak- 
 ing of testimony after notification, the House considered the testimony, 
 although ex parte. 
 
 On May 24, 1809,^ a petition was presented on behalf of Charles Turner, jr., who 
 contested the right of William Baylies to a seat in the House of Representatives 
 from one of the Massachusetts districts. The facts in this case, as found by the 
 Committee of Elections, were as follows: 
 
 At the election held in conformity with State law on the first Monday of Novem- 
 ber, 1808, the votes were returned to the governor as follows: For "Charles Turner, 
 junior, esq.," 1,44.3; for "Charles Turner, esq.," 430; a total of 1,873 votes for the 
 two names. These 1,873 votes constituted the required majority for an election, 
 but the governor, finding that a majority of votes had not been cast for any one 
 name, and exercising a prerogative lawful in cases where no candidate received a 
 majority of votes, ordered another election for January 19, 1809. At this second 
 election William Baylies received a majority of the votes and, receiving the certificate 
 of the governor, took his seat in the House. 
 
 The committee received testimony showing that the votes cast for "Charles 
 Turner, junior, esq." and for "Charles Turner, esq.," must have been meant for one 
 and the same person. The sitting Member had been cited to appear during the 
 taking of this testimony and had neglected to do so. Therefore the Committee of 
 Elections admitted the testimony, although in fact taken ex parte. 
 
 The conclusions of the committee were embodied in the following resolutions: 
 
 Resolved, That the election held in Plymouth district in Xovember last was legal and proper. 
 Resolved, That William Baylies is not entitled to a seat in this House. 
 Resolved, That Charles Turner, jr., is entitled to a seat in this House. 
 
 On June 23, the House agreed to the first resolution, yeas 58, nays 13; to the 
 second, yeas 60, nays 40; to the third, yeas 62, nays 41. 
 
 Thereupon Mr. Turner appeared and qualified. 
 
 647. The New York election case of Williams, jr., v. Bowers in the 
 Thirteenth Congress. 
 
 The House held that ballots wherein the word " junior " was omitted 
 from the candidate's name should be counted on proof that they were 
 intended for the candidate. 
 
 On July 2, 1813,- the Committee on Elections reported in the contested election 
 case of Williams, jr., v. Bowers, from New York, that the return of the votes for the 
 district was as follows : 
 
 Votes. 
 
 John M. Bowers 4, 287 
 
 Isaac Williams, jr 4, 129 
 
 Isaac Williams 434 
 
 John M. Bowey 1 
 
 Several other persons, in all 17 
 
 It appeared to the committee that there were residing within the district three 
 persons by the name of Isaac Williams, one of whom was distingtiished by the 
 
 ' First session Eleventh Congress, Contested Elections in Congress, from 1789 to 1834, p. 234. 
 ^ First session Thirteenth Congress, Contested Elections in Congress, from 1789 to 1834, p. 2G3.
 
 8g2 PRECEDENTS OF THE HOUSE OF EEPEESENTATIVES. § 648 
 
 addition of "jiinior." It was also admitted by the sitting Member that Isaac 
 Williams, jr., was the only candidate opposed to him, Avithin his knowledge. The 
 committee also found that in each of four towns of the district neariy 100 votes 
 were given for Isaac "Williams, and not one for Isaac Wilhams, jr. It therefore 
 appeared to the committee that the votes given for Isaac Williams were intended 
 for Isaac Williams, jr., but considered that further evidence was necessarJ^ 
 
 So the subject was postponed until the next session, and on December 16, 1813, 
 the committee again reported, finding that in the towns of Exeter, Milford, and 
 Westford, 322 votes were, through the mistakes of the local inspectors of electiont, 
 returned for Isaac Williams. From the testimony of these inspectors it appeared 
 that these 322 votes were given to, and ought to have been returned for, Isaac 
 Wilhams, jr. Adding these votes to the poll of Isaac Wilhams, jr., gave him a 
 majority of 164 votes over Mr. Bowers. Therefore the committee submitted the 
 following resolutions, which were unanimously agreed to by the House: 
 
 Resolved, That John M. Bowers is not entitled to a seat in this House. 
 Resolved, That Isaac Williams, jr., is entitled to a seat in this House. 
 
 648. The New York election case of Willoughby v. Smith in the Four- 
 teenth Congress. 
 
 Election officers having ommitted the word " junior " in returning 
 the vote of a candidate in two towns, the House seated the candidate on 
 finding that the error had affected the result decisively. 
 
 On December 11, 1815,* the Committee on Elections, to whom had been referred 
 the case of Willoughby, jr., v. Smith, of New York, reported that it appeared from 
 the testimony of certain local inspectors of elections, that in the towns of German 
 Flats and Litchfield, 299 votes were, through the mistake of the said inspectors, 
 returned for Westel Willoughby, although in fact they were given for Westel Wil- 
 loughby, jr., and that in the said towns no votes were given for Westal Willoughby 
 without having the word "junior" added thereto. The 299 votes above mentioned 
 being added to the poll of Westel Willoughby, jr., gave him a majority of 255 votes 
 over William S. Smith. The committee therefore recommended resolutions that 
 Mr. Smith was not entitled to the seat, and that Westel Willoughbj^, jr., was entitled 
 to it. 
 
 On December 15 the House agreed to the recommendation of the committee, 
 and Mr. Willoughby took his seat. 
 
 649. The New York election cases of Guyon, jr., v. Sage and Hugunin 
 V. Ten Eyck in the Sixteenth and Nineteenth Congresses. 
 
 The omission of the word '' junior " in the return of a candidate's 
 vote was corrected by the House on being shown by testimony. 
 
 Instance wherein the House decided an election contest against a 
 returned Member who had not appeared to claim the seat. 
 
 On January 12, 1820,^ the Committee on Elections reported in the contested 
 
 ' First session Fourteenth Congress, Contested Elections in Congress from 1789 to 1834, p. 265. 
 ^ First session Sixteenth Congress, Contested Elections in Congress from 1789 to 1834, p. 348.
 
 § 650 THE HOUSE THE JUDGE OF CONTESTED ELECTIONS. 863 
 
 case of Guyon, jr., v. Sage, of New York, which had been instituted by a petition. 
 The committee foimd that votes were cast as follows: 
 
 Votes. 
 
 For Ebenezer Sage 2, 085 
 
 For James Guyon, jr 1, 701 
 
 For James Guyon 396 
 
 The evidence showed that the 396 votes were actually cast for "James Guyon, 
 jr," but that the word "junior" was omitted through the mistake of certain return- 
 ing officers. 
 
 The committee therefore submitted the following resolutions, which were agreed 
 to by the House on January 14, 1820: 
 
 Resolved, That Ebenezer Sage is not entitled to a seat in this House. 
 Resolved, That James Guyon, jr., is entitled to a seat in this House. 
 
 The committee also found that Mr. Sage had not appeared to claim his seat, 
 and no evidence had been adduced of his intention to make such claim. 
 
 On December 1.5, 1825,' in the case of Hugunin, jr., v. Ten Eyck, of New York, 
 the House iinseated Mr. Ten Eyck and seated Mr. Hugunin, because a correction 
 of the returns showed that the omission of the word "junior" in certain returns had 
 deprived the latter of enough votes actually cast for him to secure his election. The 
 question was not discussed, since the principle had been discussed and passed on 
 several times. 
 
 650. Tlie New York election cases of Wright, jr., v. Fisher and Root 
 V. Adams in the Twenty-first and Fourteenth Congresses. 
 
 The omission of the word "junior" in the return of a candidate's 
 vote was corrected by the House on being shown by testimony. 
 
 Instance wherein a person declined to take a seat assigned him after 
 a contest as to final right. 
 
 On January 19, 1830,^ the Conmaittee on Elections reported in the case of 
 Wright, jr., v. Fisher, of New York. It appeared that at the election in November, 
 1828, there were given to "Silas Wright, junior," 42 votes in the town of Edwards, 
 which were retiuned for "Silas Wright;" and there were given for "Silas Wright, 
 junior," in two other towns a total of 130 votes which, by mistake of election officers, 
 were not returned for him. 
 
 The addition of these votes to the poll showed the election of Silas Wright, jr. ; 
 and in accordance with this showing the committee reported a resolution unseating 
 Mr. Fisher and declaring Mr. Wright entitled to the seat. 
 
 On February 5 the House agreed to the resolution. 
 
 Mr. Wright, not having appeared, on February 13 ^ it was 
 
 Resolved, That the Speaker of this House inform the executive of New York that the seat in the 
 present Congress, for the Twentieth Congressional district, occupied by George Fisher, has been, by a 
 resolution of the House, awarded to Silas Wright, jr. 
 
 ' First session Nineteenth Congress, Contested Elections in Congress from 1789 to 1834, p. 501. 
 ' First session Twenty-first Congress, Contested Elections in Congress from 1789 to 1834, p. 518. 
 2 Journal, p. 293.
 
 864 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 651 
 
 Mr. Wright did not appear, and on March 9 a letter from him declining the 
 seat was presented to the House.* 
 
 On December 26, 1815,Hhe Committee on Elections reported in the contested 
 election case of Koot v. Adams, of New York, that John Adams was not entitled 
 to a seat in the House, and that Erastus Root was entitled to the seat. 
 
 In this case it appeared from the sworn statement of a clerk in one of the 
 coimties that his deputy had returned the votes of certain towns as cast for "Eras- 
 tus Rott" instead of "Erastus Root," for whom they were in fact cast. The sti- 
 ting Member admitted the truth of this statement, and as the number of votes so 
 incorrectly returned was sufficient to change the result of the election in favor of 
 the sitting Member, the House concurred in the report of the committee. Mr. 
 Root therefore qualified and took his seat. 
 
 651. The South Carolina election case of McKissick v. Wallace in 
 the Forty-second Congress. 
 
 Contestant's evidence being too indefinite to establish his case, the 
 House confirmed the title of sitting Member although irregularities in 
 the election were evident. 
 
 On May 7, 1872,^ Mr. G. W. Hazelton, of Wisconsin, from the Committee on 
 Elections, submitted the report of the committee in the case of McKissick v. Wallace, 
 of South Carolina. The sitting Member had been retiirned by a certified majority 
 of 3,304. The contestant claimed that the election was irregular. 
 
 The committee found the evidence voluminous, but not sufficiently definite 
 and tangible to warrant the committee in assailing the apparent or prima facie 
 right of the sitting Member to the seat. The report says: 
 
 Indeed, there is no evidence of the actual vote certified in the several counties of the district 
 on which the certificate of election was predicated. 
 
 There is some reason for the belief that irregularities may have occurred in some localities, but 
 the evidence of the contestant falls short of determining to what extent these irregularities were carried, 
 or affording any means of ascertaining their effect upon the actual vote of the district. 
 
 The law under which the election was held seems to be well calculated to cover, if not to encourage, 
 fraud, inasmuch as it neither requires registration of the voters nor a public canvass of the votes at the 
 close of the polls, but allows the managers of each precinct, or one of them, to retain possession of the 
 boxes containing the ballots uncounted for three days, at the end of which time they are required to 
 deliver them over to the commissioners of election for their county, together with the poll list, and 
 these latter officers may retain the boxes for ten days longer before making the canvass. 
 
 But the committee, having no power over this law, must content itself with simply calling attention 
 to it. 
 
 Therefore the committee recommended a resolution confirming the title of 
 sitting Member to the seat. 
 
 On May 9^ this report was agreed to by the House without division. 
 
 652. The House in the Fifty-eighth Congress declined to investi- 
 gate the election of a Delegate to the Fifty-ninth Congress. — On February 
 
 'Journal, p. 394. 
 
 ^ First session Fourteenth Congress, Contested Elections in Congress from 1789 to 1834, p. 271. 
 
 ^ Second session Forty -second Congress, House Report No. 66; Smith, p. 98. 
 
 ♦Journal, pp. 831, 832; Globe, p. 3243, 3244.
 
 § 653 THE HOUSE THE JUDGE OF CONTESTED ELECTIONS. 865 
 
 22, 1905/ Mr. Martin E. Olmsted, of Pennsylvania, submitted, from the Com- 
 mittee on Elections No. 2, the following report: 
 
 The Committee on Elections No. 2, to which was referred the following memorial, viz: 
 
 " Memorial- of the Independent Home Rule party of Havaii praying for the appointment of a commisnon 
 to investigate the recent election in that Territory. 
 
 "resolutions. 
 
 "Whereas the official printed ballots used in every election precinct throughout the Territory of 
 Hawaii on the Tuesday (November 8) after the first Monday in November, 1904, were ballots attached 
 to a niunbered stub, and in the right comer of said ballot, which corner is perforated for purposes of 
 detachment therefrom, is contained the number of said ballot, corresponding with the number printed 
 upon the stub aforesaid ; and * * * 
 
 "Be it resolved, That Congress is hereby memorialized and requested to send as soon as practicable 
 a commission to this Territory to inquire and investigate into the illegal ballots as aforesaid, or order the 
 governor of this Territory to send to Congress one or two ballot boxes containing the aforesaid numbered 
 and perforated ballots or sample thereof; and * * * " 
 
 respectfully begs leave to report that it has also received from citizens of Hawaii a numerously signed 
 "Palapala Hoopii," asking "that the territorial election held on Tuesday, November 8, 1904, be declared 
 by the Congress of the United States null and void," for reasons therein set forth, which are substantially 
 those contained in the foregoing memorial. No person desiring such action has appeared before your 
 committee or submitted any proof of the allegations contained in the memorial. But the Hon. A. L. C. 
 Atkinson, the secretary of the Territory of Hawaii, the official referred to in the said memorial, has 
 appeared, submitted a sample showing the form of ballot used, and explained its use. 
 
 After describing the ballot, the committee continues: 
 
 Upon this point it would, perhaps, be improper for your committee or for this House to express an 
 opinion, in view of the fact that it wUl in any event have to be passed upon by the Fifty-ninth Congress 
 in a contest which has been filed against the person returned as elected to be a Delegate therein. So 
 far as the eight senators and thirty representatives elected to the territorial legislature are concerned, 
 no reason has been shown us why the legality of their elections may not, or might not have been, deter- 
 mined upon proper proceedings instituted before the designated local legal tribunals. 
 
 We therefore submit that there is no occasion for the present Congress to send a commission to 
 Hawaii or to take any action in the premises, and recommend the adoption of the following resolution: 
 
 Resolved, That it is inexpedient for this House, at this time, to take any action in relation to the 
 election of senators and representatives to the territorial legislature in Hawaii, or the election of Delegate 
 to the Fifty-ninth Congress. 
 
 After short debate this resolution was agreed to without division.'' 
 
 653. The Senate election case of Lane and McCarty v. Fitch and 
 
 Bright, from Indiana, in the Thirty-fifth Congress. 
 
 In 1858 the Senate decided that a decision, once made in an election 
 
 case should not be revised or reversed. 
 
 ^ Third session Fifty-eighth Congress, Record, p. 3075. 
 
 ^ This memorial had been referred in the regular course. 
 
 ^ In 1890 the Senate considered the case of Fred T. Dubois, of Idaho. (Election Cases, Senate 
 Docimient No. 11, special session Fifty-eighth Congress, p. 763.) December 30, 1890, the credentials 
 of Mr. Dubois, as Senator from Idaho for six years beginning March 4, 1891, were laid before the Senate 
 and referred to the Committee on Privileges and Elections. January 5 that committee reported that it 
 was not customarj' to consider any questions arising on the credentials of a Senator until the term 
 for which he claimed to be elected, and recommended that the credentials be placed on file. The 
 credentials were filed accordingly. 
 5994— VOL 1—07 55
 
 866 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 653 
 
 On June 12, 1858,' the Senate had declared Messrs. Graham N. Fitch and 
 Jesse D. Bright, of Indiana, entitled to their seats, after proceedings on a memorial 
 objecting to the validity of their election. 
 
 At the next session of Congress Messrs. Henry S. Lane and WilUam M. 
 McCarty appeared, bearing credentials as Senators-elect from Indiana. The 
 question was referred to the Committee on the Judiciary, which on February 3, 
 1859, reported.^ This report, after reviewing the history of the case, said: 
 
 It appears by the memorial that the legislature of Indiana, at its recent session in December last, 
 assumed the power of revising the final decision thus made by the Senate of the United States, under 
 its unquestioned and undoubted constitutional authority to "be the judge of the qualifications of its 
 own members." Under this assumption, it also appears by the journals of the senate and house of 
 representatives of the State of Indiana, the legislature of Indiana, treating the seats of the Senators 
 from that State as vacant, proceeded, subsequently, by a concurrent vote of the senate and house of 
 representatives of the State, to elect the Hon. Henry S. Lane as a Senator of the United States for the 
 State of Indiana, to serve as such until the 4th of March, 1863, and the Hon. William Monroe McCarty 
 as a Senator for the same State, to serve as such until the 4th of March, A. D. 1861. Under this action 
 of the legislature of Indiana those gentlemen now claim their seats in the Senate of the United States. 
 
 It may be conceded that the election would have been valid and the claimants entitled to their 
 seats had the legislature of Indiana possessed the authority to revise the decision of the Senate of the 
 United States that Messrs. Fitch and Bright had been duly elected Senators from Indiana, the former 
 until the 4th of March, 1861, and the latter until the 4th of March, 18G3. 
 
 In the opinion of the committee, however, no such authority existed in the legislature of Indiana. 
 There was no vacancy in the representation of that State in the Senate, and the decision of the Senate, 
 made on the 12th of June, 1858, established finally and (in the absence of a motion to reconsider) 
 irreversibly the right of the Hon. Graham N. Fitch as a Senator of the State of Indiana until the 4th 
 of March, 1861, and the right of the Hon. Jesse D, Bright as a Senator from the same State until the 
 4th of March, A. D. 1863. 
 
 The decision was made by an authority having exclusive jurisdiction of the subject; was judicial 
 in its nature; and, being made on a contest in which all the facts and questions of law involving the 
 validity of the election of Messrs. Fitch and Bright, and their respective rights to their seats, were as 
 fully known and presented to the Senate as they are now in the memorial of the legislature of Indiana, 
 the judgment of the Senate then rendered is final, and precludes further inquiry into the subject to 
 which it relates. 
 
 There being, by the decision of the Senate, no vacancy from the State of Indiana in the Senate 
 of the United States, the election held by the legislature of that State at its recent session is, in the 
 opinion of the committee, a nullity, and merely void, and confers no rights upon the persons it assumed 
 to elect as Senators of the United States. The committee ask to be discharged from the further consid- 
 eration of the memorial of the legislature of Indiana. 
 
 The minority combated these views, as follows: 
 
 The power of the Senate to judge of the election and qualification of its own members is unlimited 
 and abiding. It is not exhausted in any particular case by once adjudicating the same, as the power 
 of reexamination and the correction of error or mistake, incident to all judicial tribunals and proceed- 
 ings, remains with the Senate in this respect, as well to do justice to itself as to the States represented, 
 or to the persons claiming or holding seats. Such an abiding power must exist to purge the body from 
 intruders, otherwise anyone might retain his seat who had once wrongly procured a decision of the 
 Senate in his favor by fraud and falsehood, or even by papers forged or fabricated. 
 
 In what cases and at whose application a rehearing will at all times be granted is not now necessary 
 to inquire; but when new parties, with apparently legal claim, apply, and especially when a sovereign 
 State, by its legislature, makes respectful application to be represented by persons in the Senate legally 
 elected, and insists that the sitting members from that State were never legally chosen, we consider 
 
 ' First session Thirty-fifth Congress, Globe, p. 2981. ^ 1 Bartlett, p. 632; Globe, p. 772.
 
 § 654 THE HOUSE THE JUDGE OF CONTESTED ELECTIONS. 867 
 
 that the subject should be fully reexamined, and that neither the State, the legislature, nor the persons 
 now claiming seats can legally or justly be estopped, or even prejudiced, by any former proceedings 
 of the Senate to which they were not parties. 
 
 ******* 
 In the case of the State of Mississippi, in the House of Representatives in the Twenty-fifth Congress, 
 the power to reexamine a decision made on an election of Members was fully considered and decided. 
 Gholson and Claiborne were, at a special election held on the proclamation of the governor, chosen 
 Representatives from that State to a special session of Congress called by the President. At that 
 session exception was taken to them, but after some objection they were admitted to their seats. Their 
 case and papers were referred to the Committee of Elections, who made report, and thereupon, on 
 full and elaborate discussion, it was resolved that they were duly elected Members of the Twenty-fifth 
 Congress and entitled to their seats. This was in September. In November following an election was 
 holden in said State, and Prentiss and Ward were elected Members of the Twenty-fifth Congress, who, 
 in December following, presented their credentials and claimed their seats. It was then insisted in 
 that case, as it now is in this, that the decision so before made was conclusive of the right of Claiborne 
 and Gholson to their seats as Members of the Twenty-fifth Congress, and the whole matter was res 
 adjudicata. But on full examination and after fuU discussion, the former resolution declaring said 
 Claiborne and Gholson as duly elected Members of the Twenty-fifth Congress was rescinded. 
 
 On February 11 the question was debated, especially wnth reference to the 
 right of review, and the Senate by a vote of yeas 31, nays 20 the subject laid on 
 the table. So Messrs. Fitch and Bright retained their seats. 
 
 654. The House, overruling its Speaker, held that a negative decision 
 on a resolution declaring a person not entitled to a seat was not equiva- 
 lent to an aflarmation of the title. — On March 10, lS22,i the House was consid- 
 ering the contested election case of Reed v. Causden, from the State of Maryland, 
 the Committee on Elections having reported the resolutions, which, as amended by 
 the Committee of the Whole, came before the House as follows: 
 
 Resolved, That Jeremiah Causden is not entitled to a seat in this House. 
 Resolved, That Philip Reed is not entitled to a seat in this House. 
 
 The first resolution was agreed to by the House; and on the question of agreeing 
 to the second resolution there were, yeas 74, nays 75. 
 
 The Speaker ■ voted in the affirmative, thereby making an equal division, and, 
 as provided by the rule, announced that the question was lost. The resolution 
 being lost, he decided, as a necessary consequence thereof, that the converse of the 
 proposition contained in the said resolution was affirmed, to wit, that Phihp Reed 
 is entitled to a seat in this House. 
 
 Mr. Henry Baldwin, of Pennsylvania, appealed, and the decision of the Speaker 
 was overruled, after debate. 
 
 Mr. Romulus M. Sanders, of North Carohna, then moved this resolution, which 
 was agreed to — yeas 82, nays 77: 
 
 Resolved, That Philip Reed is entitled to a seat in this House as one of the Representatives from 
 the State of Marj-land. 
 
 Mr. Reed thereupon appeared and qualified. 
 
 655. In voting on election cases the negativing of one proposition is 
 not regarded as affirming its converse.— On January 29, 1881,^ majority and 
 
 ' First session Seventeenth Congress, Journal, pp. 368-370; Annals, pp. 1321-1323. 
 
 - Philip P. Barbour, of Virginia, Speaker. 
 
 ^ Third session Forty-sixth Congress, Record, pp. 1050, 1051.
 
 868 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 656 
 
 minority resolutions were before the House in a contested election case, the minority 
 resolutions being the converse of the majority in their declarations. After the 
 minority proposition, which had been offered as an amendment in the nature of a 
 substitute, had been rejected, the point of order was made that this action decided 
 the majority proposition, and that a further vote was unnecessary. The Speaker 
 pro tempore (Mr. Adlai E. Stevenson, of Illinois) held that, as the substitute had 
 been voted on, the question was then on the majority resolution. 
 
 656. A resolution declaring a Delegate (already seated on prima 
 facie showing) entitled to his seat being laid on the table, his status 
 was not thereby affected. — On July 23, 18G8,' the House considered these res- 
 olutions : 
 
 Resolved, That William McGrorty is not entitled to a seat in this House as a Delegate from the 
 Territory of Utah. 
 
 Resolved, That William H. Hooper is entitled to a seat in this House as a Delegate from the Ter- 
 ritory of Utah. 
 
 The contestant, IMr. McGrorty, charged the sitting Member, Mr. Hooper, with 
 having, as a Mormon, taken oaths inconsistent with his duties as a Delegate, with 
 suspicious connection with the perpetrators of the Mountain Meadow massacre, etc. 
 The official canvass showed, however, that Mr. Hooper received 15,068 votes and 
 Mr. McGrorty 105. The contestant having been heard, the first resolution was 
 agreed to and the second resolution was laid on the table. 
 
 As Mr. Hooper had already taken the oath and exercised his functions as a 
 Delegate, the laying on the table of the resolution declaring him entitled to the 
 seat did not affect his status. He continued to be a Member through this Congress.^ 
 
 657. In 1792, 1804, and 1841 the House permitted parties in elec- 
 tion cases to be heard by attorneys at the bar of the House. — On March 
 10, 1792, at the time of the trial of the contested election case of Jackson v. Wayne, 
 leave was granted to the sitting Member "to be heard by his coimsel at the bar 
 of the House."' 
 
 658. On March 1, 1804,^ in the contested election case of Moore v. Lewis, 
 it was — 
 
 Resolved, That the memorialist and the sitting Member shall, If they desire it, be heard by coun- 
 sel before the bar of the House. 
 
 On March 3 Mr. Lewis was heard by his counsel. 
 
 659. On September 4, 1841,^ the House agreed to a resolution that David 
 Levj^, claiming a seat as Delegate from Florida, be heard in person or by counsel 
 at the bar of the House. 
 
 660. In 1836 the House, after full discussion, declined to permit the 
 contestant in an election case to be heard by counsel at the bar of the 
 House. — On March 2, 1836," when the House was about to proceed to the con- 
 
 ' Second session Fortieth Congress, Globe, pp. 4383-4389. 
 
 ^ Third session Fortieth Congress, Journal, p. 181. 
 
 2 First session Second Congress, Contested Elections in Congress, from 1789 to 1834, p. 49. 
 
 * First session Eighth Congress, Journal, pp. 609, 615. 
 
 'First session Twenty-seventh Congress, Journal, p. 460. 
 
 « First seesion Twenty-fourth Congress, Journal, pp. 445, 468, 499, 500; Debates, pp. 2664, 2759.
 
 § 661 THE HOUSE THE JUDGE OF CONTESTED ELECTIONS. 869 
 
 sideration of the contested election case of Newland v. Graham, from North Caro- 
 lina, a motion was made that the petitioner, David Newland, have leave to appear 
 at the bar and address the House on the subject of his petition. 
 
 Mr. Jesse A. Bynum, of North Carolina, moved as an amendment to this motion 
 "that he have leave to address the House by himself or counsel on the main ques- 
 tion." 
 
 Over this motion a debate arose as to the propriety of allowing the petitioner 
 to be heard by counsel. In support of his motion Mr. Bynum cited precedents in 
 1789 and 1804 in which the petitioner was heard by counsel. 
 
 On March 5 Mr. Bynum's amendment was disagreed to by the House, yeas 67, 
 nays 112. 
 
 On March 12 a motion to reconsider this vote was decided in the negative, 
 yeas 91, nays 96. Then the original motion that the petitioner have leave to appear 
 at the bar antl address the House was agreed to.^ 
 
 661. Tlie House, in 1856, declined to permit a contestant who could 
 not speak the English language to be heard by counsel at the bar of 
 the House.— On May 8, 1856,= Mr. William E. Smith, of Alabama, from the 
 Committee on Elections, submitted the following resolutions: 
 
 Resolved, That Jos^ M. Gallegos is not entitled to a seat in this body as a delegate from the Terri- 
 tory of New Mexico. 
 
 Resolved, That Miguel A. Otero is entitled to a seat in this body as such Delegate. 
 
 Resolved, That the parties to this contest be allowed to appear before this House, either in person 
 or by counsel, to defend their respective claims. 
 
 The House proceeded first to the consideration of the last of the series of res- 
 olutions, which was reported principally for the reason that Mr. Gallegos could not 
 speak the EngHsh language. 
 
 The subject was considered at length, Mr. Alexander H. Stephens, of Georgia, 
 going into a careful examination of the precedents, and favoring the resolution as 
 a result of that examination. But on May 9 the resolution was disagreed to.^ 
 
 662. The contestant in an election case is sometimes permitted to 
 address the House in his own behalf. — On January 30. 1890,* Mr. John J. Jen- 
 kins, of Wisconsin, from the Committee on Elections No. 3, made a report in the 
 case of Rosenthal i'. Crowley, and gave notice that he would call up the case on 
 the next day. Thereupon he asked mianimous consent of the House that the con- 
 testant be allowed one hoiu" to debate when the case should come up. 
 
 The request was granted, there being no objection. 
 
 ' On March 11 Mr. Bynum made an elaborate argument in favor of allowing the petitioner to be 
 heard by counsel, citing numerous precedents, both American and English. (Debates, pp. 2737-2746.) 
 This was replied to on March 12, also with a learned discussion of precedents. (Globe, p. 230.) 
 
 On July 16, 1840, in the New Jersey case, a proposition was made that the contestants be heard 
 on the floor of the House by themselves or counsel; but was ruled out, the previous question having 
 been ordered. (First session Twenty-sixth Congress, Journal, p. 1295.) 
 
 ^ First session Thirty-fourth Congress, Journal, pp. 943, 947, 952; Globe, pp. 1162, 1179, 1186. 
 
 ^Subsequently, on May 26 (Globe, p. 1302; Journal, p. 1045), Mr. Stephens presented from Mr. 
 Gallegos a speech written in English and giving his case, which was ordered to be printed. Mr. Stephens 
 presented this as privileged, but no issue was raised. 
 
 ■* First session Fifty-fourth Congress, Record, pp. 1120, 1168.
 
 870 PKECEDENTS OF THE HOUSE OF KEPEESENTATIVES. § 663 
 
 663. The House in early years gave the privileges of the floor to 
 contestants during discussion of the reports on their cases, with leave 
 to speak on the merits.— On January 5, 1820,^ Mr. John W. Taylor, of New 
 York, chairman of the Committee on Elections, offered the following order to give 
 privilege to a contestant for a seat: 
 
 Ordered, That Rollin C. Mallary have leave to occupy a seat on the floor of this House, pending 
 the discussion of the report of the Committee on Elections upon his petition; and that he have leave 
 to speak on the merits of the petition, and the report thereon. 
 
 The order was agreed to. 
 
 664. On January 6, 1824,= it was — 
 
 Resolved, That Parmelio Adams, who contests the election of Isaac Wilson, returned a Member 
 of this House, be permitted to appear within the bar, and be heard in support of his petition, during 
 the discussion of the report of the Committee on Elections on said petition. 
 
 665. In 1830,' during consideration of the Tennessee contested election case of 
 Arnold v. Lea, the contestant had as usual been admitted to the floor and had 
 addressed the Committee of the Whole (wherein the case was considered), and had 
 concluded. Thereupon the sitting Member was recognized and proceeded to 
 address the committee. When he had concluded, the contestant requested recog- 
 nition. A question being made as to his right to be heard, the chairman** declared 
 that he did not have the right, as it was not proper to have any collision between 
 the petitioner and the sitting Member. 
 
 666. The House, in 1841, indicated its opinion that the returned 
 Member might speak of right in his own election case, but that the con- 
 testant needed the consent of the House. — On January 5, 1841,= the House, 
 after some debate, voted that Charles J. Ingersoll, a contestant for the seat occupied 
 by Charles Naylor, of Pennsylvania, have leave as well as Mr. Naylor, to address 
 the House. This resolution created debate. The propriety of allowing Mr. Inger- 
 soll to speak seems to have been admitted, but it was objected that the form of 
 the resolution seemed to imply that the sitting Member also needed the permission 
 of the House, whereas, it was contended, he had as much right to the floor as any 
 other Jklember. Therefore the resolution, before being adopted, was amended by 
 striking out the reference to Mr. Naylor.* 
 
 667. Form of resolution used in 1848 to give to a contestant the 
 right to be heard in person at the bar of the House. — On March 29, 1848,' 
 the House agreed to the following resolution: 
 
 Resolved, That James Monroe, who contests the seat of David S. Jackson, have leave to be heard 
 in person at the bar of this House. 
 
 ' First session Sixteenth Congress, Journal, p. 107 (Gales & Seaton ed.); Annals, p. 860. 
 
 ''First session Eighteenth Congress, Journal, p. 119; Annals, p. 940. 
 
 3 First session Twenty-first Congress, Journal, p. 137; Contested Elections (Clarke), p. 643. 
 
 *Mr. George McDuffie, of South Carolina. 
 
 ' Second session Twenty-sixth Congress, Journal, p. 145; Globe, pp. 83, 84. 
 
 " A question arose as to whether, in view of the fact that the proceedings had arisen from a petition 
 of people of the district, Mr. Ingersoll appeared as a claimant or as attorney for the people. It was 
 shown that Mr. Ingersoll also had claimed the seat by petition, and the House, by a vote of 139 to 42, 
 confirmed to him the privilege of being heard. 
 
 ' First session Thirtieth Congress, Journal, p. 626; Globe, p. 549.
 
 § 668 THE HOUSE THE JUDGE OP CONTESTED ELECTIONS. 871 
 
 668. A contestant having the privilege of the floor with leave to 
 speak '* to the merits of said contest and the report thereon," was per- 
 mitted to speak on a preliminary question. — On January 27, 1858,^ the con- 
 testant in the contested election case of Vallandigham v. Campbell, of Ohio, was, 
 by resolution, allowed to occupy a seat on the floor "pending the discussion of the 
 report" of the committee, and was given leave to speak "to the merits of said con- 
 test and the report thereon." 
 
 On February 3 there arose a question as to whether the contestant could be 
 on the floor and participate in the discussion of a resolution relating to extending 
 the time for taking testimony in the case. By laying on the table a motion to 
 reconsider the House permitted the contestant to be present and participate in 
 the decision of the preliminary question. Precedents were cited to show that 
 this was in accordance with the practice. 
 
 669. The practice of giving general permission to claimants for seats 
 to enjoy the privileges of the floor was embodied in a rule in 1880. 
 
 The House in one case included the right to speak to the merits with 
 a general permission to contestants to enjoy the privileges of the floor. 
 On July 5, 1861,^ the House agreed to the following resolution: 
 
 Resolved, That the several gentlemen who shall have contests for seats pending before this House 
 have the privilege of the floor during such contest, with the right to speak with regard to their respective 
 cases. 
 
 Before this the above permission had been granted in each case as it came up. 
 
 670. On July 5, 1867,^ the House gave leave to contestants for seats to have 
 the privileges of the floor until their cases should be disposed of. 
 
 671. In the Thirtv-ninth Congress (1865-67)* contestants for seats were, in 
 each case from a loyal State, admitted by special resolution to seats on the floor, 
 generally with the right to speak on the case. These resolutions were passed gen- 
 erally early in the session, giving the contestant the pri\alege during the time the 
 case was being considered in committee, as well as during the time of actual con- 
 sideration by the House. 
 
 But a general resolution giving the privilege of the floor to claimants from 
 States lately in rebellion was negatived yeas — 40, nays 111 — on December 11, 1865.' 
 
 On December 12, 1865,° a resolution recitLag the loyalty of the persons claim- 
 ing seats from Tennessee and granting them the privileges of the floor was laid on 
 the table — yeas 90, nays 63 — and then a resolution inviting these persons as individ- 
 uals to seats on the floor, but not referring to them as claimants, was agreed to, 
 yeas 133, nays 35. 
 
 672. In 1880,' when the rules of the House were revised, a provision was 
 inserted in Rule XXXW allowing the privileges of the floor to "contestants in 
 election cases during the pendency of their cases in the House." 
 
 ' First session Thirty-fifth Congress, Globe, pp. 452, 558. 
 
 ^ First session Thirty-seventh Congress, Journal, p. 20; Globe, p. 12. 
 
 ' First session Fortieth Congress, Journal, p. 165. 
 
 * First session Thirty-ninth Congress, Journal, pp. 17, 41, etc.; Globe, pp. 9, 20, etc. 
 
 'Journal, p. 47; Globe, pp. 21, 22. 
 
 "Journal, pp. 53-55; Globe, p. 33. 
 
 ' Second session Forty-sixth Congress, Journal, p. 1552.
 
 872 
 
 PRECEDENTS OF THE HOUSE OF BEPEESENTATIVES. 
 
 § 673 
 
 673. A resolution for the employment of a handwriting expert in an 
 election case was admitted as privileged. — On January 13, 1904/ Mr. Mar- 
 lin E. Olmsted, of Pennsylvania, from the Committee on Elections No. 3, offered, 
 as involving a question of privilege, the following : 
 
 Resolved, That Committee on Elections No. 2 shall be, and is hereby, authorized to employ an 
 expert in handwriting to pass upon such matters or questions as shall be submitted to him by said com- 
 mittee or any subcommittee thereof in the contested election case of Bonynge v. Shafroth, from the First 
 Congressional district of Colorado, the expense of emplojdng such expert to be paid out of the contingent 
 fund of the House. 
 
 The resolution was entertained as a question of privilege,^ and was agreed to 
 by the House. 
 
 674. A proposition relating to the pay of a contestant for a seat is 
 not a question of privilege. — On May 17, 1864,'' the House had disposed of the 
 contested election cases of Joseph Segar and L. H. Chandler, of Virginia, when Mr. 
 Henry L. Dawes, of Massachusetts, from the Committee on Elections, submitted, 
 as a question of privilege, a resolution providing for payments out of the contingent 
 fund of the House to the two claimants of sums equal to mileage and pay for the 
 session up to the time of the decision of the cases. 
 
 Mr. William S. Holman, of Indiana, made the point of order that the resolu- 
 tion was not privileged. 
 The Speaker^ said: 
 
 The resolution would certainly not be privileged if delayed until after the subject had passed away 
 from the House, but the Chair thinks that, offered in connection with the subject, it has been usually 
 regarded as privileged. 
 
 675. On June 17, 1870,^* after the disposition of the contested election case 
 of Whittlesey v. McKenzie, from Virginia, a resolution was presented for compen- 
 sating the contestant. 
 
 Objection being made, the Speaker* said: 
 
 The unqualified privilege of the Committee on Elections in regard to a report as to the right to a 
 seat does not carry with it as privielged a resolution as to compensation. * * * Such a resolution is 
 not privileged. 
 
 676. Reference to the laws relating to payment of contestants and 
 contestees in an election case. 
 
 The amount for which a party to an election case may be reimbursed 
 for expenses is limited by law. 
 
 A party to an election case must file a detailed account and vouchers 
 in support of his claim for expenses. 
 
 Allowances for witness fees in an election case must be in strict con- 
 formity to section 128, Revised Statutes. 
 
 • Second session Fifty-eighth Congress, Journal, p. 142; Record, p. 721. 
 ^Joseph G. Cannon, of Illinois, Speaker. 
 
 ^ First session Thirty-eighth Congress, Globe, p. 2323. 
 
 * Schuyler Colfax, of Indiana, Speaker. 
 
 ' Second session Forty-first Congress, Globe, p. 4519. 
 "James G. Blaine, of Maine, Speaker.
 
 § 677 THE HOUSE THE JUDGE OF CONTESTED ELECTIONS. 873 
 
 The statutes ' provide : 
 
 That hereafter no contestee or contestant for a seat in the House of Representatives shall be paid 
 exceeding two thousand dollars for expenses in election contests; and before any sum whatever shall be 
 paid to a contestant or contestee for expenses of election contests he shall file with the clerk of the Com- 
 mittee on Elections a full and detailed account of his expenses, accompanied by vouchers and receipts 
 for each item, which account and vouchers shall be sworn to by the party presenting the same, and no 
 charges for witness fees shall be allowed in said accounts unless made in strict conformity to section 
 one hundred and twenty-eight. Revised Statutes of the United States. 
 
 677. Pa3rments for the expenses of either party to an election case 
 may not be made by the House out of its contingent fund or otherwise. 
 The statutes provide: 
 
 No payment shall be made by the House of Representatives, out of its contingent fund ^ or otherwise 
 to either party to a contested election case for expenses incurred in prosecuting or defending the same.' 
 
 > 20 Stat. L., p. 400. 
 
 ' On February 19, 1861, a resolution was agreed to providing for the payment of the expenses of the 
 contested elections out of the contingent fund of the House. (Second session Thirty-sixth Congress, 
 Journal, p. 350; Glob», p. 1030.) 
 
 ' Revised Statutes, sec. 130.
 
 Chapter XXII.* 
 
 PLEADINGS IN CONTESTED ELECTIONS. 
 
 1. Provision of statute as to notice and answer. Section 678.' 
 
 2. Attitude of House as to informalities in. Sections 679-687. 
 
 3. Foundation required for Senate investigations as to bribery, etc. Sections 688-696. 
 
 678. A person proposing to contest the election of a Member serves 
 notice within thirty days after determination of the result. 
 
 A Member on whom has been served a notice of contest shall answer 
 within thirty days of such service. 
 
 Both the notice of contest and answer are required to present particu- 
 lar specifications. 
 
 The statutes provide. 
 
 Whenever any person intends to contest an election of any Member of the House of Representa- 
 tives of the United States, he shall, within thirty days after the result of such election shall have been 
 
 * See Volume VI, Chapter CLXIII. 
 
 ' As to time of serving notice. Section 38 of this volume. 
 
 Instances of notices served too late. Sections 901, 1052 of Volume II. 
 
 Extension of time for serving notice. Sections 436, 621. 
 
 Committee given discretion to regulate serving of. Section 599. 
 
 Manner of serving (section 337 of this volume and sections 862 and 984 of Volume II) and proof 
 of service. Section 862 of Volume II. 
 
 Waiver of informality in serving notice. Sections 852, 1057 of Volume II. 
 
 More than one notice may be served (section 839), but each must be within the required time. 
 Section 855 of Volume II. 
 
 House may disregard law as to notice where its observance has been impracticable. Sections 
 327, 599. 
 
 As to the determination of result of election, on which the issuance of the notice is predicated. 
 Sections 425, 527 of this volume and 862, 884, 992 of Volume II. 
 
 Construction of words ''specify particularly" in law as to notice. Section 337 of this volume, 
 and sections 821, 824, 830, 835, 848, 864, 905, 909, 917, 942, 972, 1064, 1074, 1075, 1171 of Volume II. 
 
 House sometimes proceeds with contest although notice or answer may be vague and indefinite. 
 Section 778 of this volume, and sections 850, 859, 949 and 1107 of Volume II. 
 
 Instance of notice by telegraph. Section 467. 
 
 Amended notice admitted. Sections 452, 624. 
 
 Waiver as to sufficiency of notice. Sections 855, 864. 
 
 Notice and answer should be free from personalities (sections 938, 1125 of Volume II) and trivial 
 and irrelevant matter. Sections 1103, 1126 of Volume II. 
 
 Before the enactment of the law, contests were instituted by memorial. Sections 322, 362, 370, 
 434, 435, 525, 547, 647, 70S, 729, 756, 758, 760, 763, 806, 815, 820 of this volume; and 986 of Volume II. 
 Instance also after the enactment of the law. Section 825 of this volume. 
 874
 
 § 679 PLEADINGS IN CONTESTED ELECTIONS, 875 
 
 determined by the officer or board of canvassers authorized by law to determine the same, give notice 
 in writing, to the Member whose seat he designs to contest, of his intention to contest the same, and 
 in such notice shall specify particularly the grounds upon which he relies in the contest.' 
 
 Any Member upon whom the notice mentioned in the preceding section may be served shall, 
 within thirty daj^s after the ser\-ice thereof, answer such notice, admitting or denying the facts alleged 
 therein, and stating specifically any other grounds upon which he rests the validity of his election; 
 and shall sen"e a copy of his answer upon the contestant. - 
 
 679. The House decided in 1806 that a petition instituting an elec- 
 tion contest should state the grounds with reasonable certainty. 
 
 The House decided that in an election case introduced by petition, the 
 petitioner should not give evidence of any fact not alleged in the petition. 
 
 On January 3, 1806,^ the House conciured in the action of the Committee on 
 Elections giving Mchael Leib, of Pennsylvania, leave to withdraw liis petition. 
 The committee expressed the grounds for this conclusion as follows: 
 
 A petition against the election of any person returned as a Member of the House of Representatives 
 ought to state the ground on which the election is contested with such certainty as to give reasonable 
 notice thereof to the sitting Member, and to enable the House to judge whether the same be verified 
 by the proof, and, if proved, whether it be sufficient to vacate the seat; and the petitioner ought not 
 to be permitted to give evidence of any fact not substantially alleged in his petition. 
 
 680. The Tennessee election case of Thomas v. Arnell, in the Thirty- 
 ninth Congress. 
 
 The parties to an election case may not by mutual consent waive the 
 requirements that an issue shall be made up by the pleadings of notice 
 and answer. 
 
 For exceptional reasons the House may authorize an election case to 
 be made up as to notice and answer after the time prescribed by law. 
 
 Form of resolution providing for notice and answ^er in election case 
 after expiration of time prescribed by law. 
 
 On Januarj' 21, 1867,* the C!ommittee on Elections, through Mr. Henry L. 
 Dawes, of Massachusetts, reported in the case of Thomas v. Arnell, of Tennessee. 
 The report states the facts and conclusions as follows : 
 
 That the election here contested was held on the first Thursday in August, 1865, and the certifi- 
 cate of election was given by the governor of the State to Mr. Arnell, under which, at the commence- 
 ment of the present session, Mr. Arnell appeared, was qualified, and still holds the seat. 
 
 The statute of February 19, 1851, provides that the contestant shall serve notice of contest upon 
 the sitting Member within thirty days after the result of said election shall have been determined by 
 the officer or board of commissioners authorized by law to determine the same, and the sitting Member 
 shall answer the same within thirty days, and all testimony shall be taken within sixty days thereafter. 
 In the present case the statute has not been complied with; neither notice of contest nor answer have 
 been served. At the hearing before the committee the contestant claimed the right to be heard upon 
 the allegations in his petition without further pleadings, for the reasons set forth in the same, and the 
 sitting Member contended that the case should be dismissed for want of a compliance with the require- 
 ments of said statute. 
 
 ' Revised Statutes, sec. 105. The present system of making up contested election cases dates 
 from 1851. Before that, except for a brief period in the early years of the House, there had been no 
 statute governing the procedure, and contests had been instituted by memorial. 
 
 ^ Revised Statutes, sec. 106. 
 
 ^ First session Ninth Congress, Contested Election Cases in Congress, 1789 to 1834, p. 165. 
 
 * Second session Thirty-ninth Congress, 2 Bartlett, p. 162; Rowell's Digest, p. 211.
 
 876 
 
 PBECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 § 680 
 
 The following letter from the sitting Member was submitted by the contestant as evidence that 
 he had waived a notice of contest, and there was no other evidence upon this point: 
 
 "Thirty-ninth Congress of the United States, 
 
 " Washington, D. C, December 4, 1866. 
 "My Dear Sir: Yours of the 3d instant has been received. The following statement contains 
 the substantial facts, so far as I remember them: In the house of representatives at Nashville, Tenn., 
 after learning that Governor Brownlow had given to me the certificate of election for the Sixth Congres- 
 sional district of Tennessee to the Thirty-ninth Congress, you remarked to me that you intended to con- 
 test the election. I replied, 'Very well; I expect you to do so.' After some other conversation of a 
 mutually friendly character, on your turning away, I volunteered the information that it was necessary 
 to give me notice, which you seemed not to have thought of. I further remarked that I desired to throw 
 no obstacles in the way, and would acknowledge notice. You then called up several witnesses and the 
 matter was verbally understood. 
 
 "Hoping that this will be satisfactory, I am, very respectfully, yours, 
 
 "Samuel M. Arnell. 
 "Hon. D. B. Thomas." 
 
 Without critically examining this note for the purpose of ascertaining whether it sustained the 
 position of the contestant, that it waived all notice whatever, or, as contended by the sitting Member, 
 was merely evidence of an s^eement on his part to acknowledge the service of legal notice whenever 
 the same should be made, the committee were of opinion that it was not competent for the parties to 
 entirely waive the requirements of the statute of 1851; that said statute was enacted not only to aid the 
 parties in the preparation of their case, but also to secure a record and a distinct and well-defined issue, 
 upon which the committee and the House were to pass. To this end the statute requires the notice to 
 be in writing, and to specify in such writing particularly the grounds upon which he relies in the con- 
 test, and the answer to admit or deny the facts alleged in the notice, and to state specifically any othea 
 grounds upon which he rests the validity of his election. To the issue thus distinctly defined the 
 statute and the uniform decisions of the House confine all testimony to be taken. It must be evident 
 to every one that it is impossible for the committee or the House to hear and determine a case without 
 an issue joined. Besides, no testimony could be taken by either party without such issue, previously 
 framed. The statute requires testimony to be taken in a manner therein prescribed, before a time 
 therein fixed, and in support of an issue previously made up. It is perfectly absurd to suppose it pos- 
 sible for cither party to take testimony in support of his own allegations, or in contravention of those of 
 the other party, before either have been made, or for the committee to hear the parties upon an issue 
 reserved. 
 
 The committee were, therefore, of opinion that this case could not be heard by them in its present 
 position, and that it must be dismissed unless the House should authorize the parties to make up an 
 issue and submit the same, with such evidence as each may be able to produce in relation to the same, 
 to the committee or the House. It was thereupon claimed by the contestant that he has been led into 
 this noncompliance with the statute by the agreement of the sitting Member to acknowledge notice 
 heretofore alluded to, and also by the peculiar condition of the State of Tennessee in reference to repre- 
 sentation in this House. All representation from that State had been refused admission into Congress 
 till near the close of the first session, and it was not known till then, long after the time prescribed by 
 the statute for serving notice had elapsed, that a contest would be of any avail. 
 
 The committee heard both parties upon the question of recommending to the House that the 
 authority prayed for be given. This authority was given in the case of Williamson v. Sickles (Bart., 
 288) for the special reasons existing in that case, and in the opinion of the committee there are peculiar 
 reasons existing in the present case, not likely again to occur, which will justify the House in authoriz- 
 ing the making up of a record as nearly in conformity with the requirements of the statute as the cir- 
 cumstances of the case will permit. They therefore recommend the adoption of the following resolution: 
 
 Resolved, That Dorsey B. Thomas, contesting the right of the Hon. Samuel M. Arnell to a seat in 
 this House as a Representative from the Sixth Congressional district of Tennessee be, and he is hereby, 
 required to serve upon the said Arnell, within eight days after the passage of this resolution, a particular 
 statement of the grounds of said contest, and that said Arnell be, and he is hereby, required to serve 
 upon said Thomas his answer thereto in eight days thereafter, and that both parties be allowed eighteen
 
 § 681 PLEADINGS IX CONTESTED ELECTIONS. 877 
 
 days next after the service of said answer to take testimony in support of their several all^ations and 
 denials in all other respects in conformity to the requirements of the act of February' 19, 1851, except 
 that not more than four days' notice shall be required for the taking of any deposition under this reso- 
 lution. 
 
 On January 23, 1867/ the House agreed to the resolution proposed by the 
 committee; but no conclusion was ever reached on the merits of the case, and on 
 March 2 ' the House discharged the Elections Committee from the consideration 
 of the subject. 
 
 681. The Virginia election case of Stovell v. Cabell in the Forty- 
 seventh Congress. 
 
 Although there may be irregularities in pleadings and in taking of 
 testimony, the committee sometimes examines an election case on the 
 merits. 
 
 Where no la'w^ requires the use of only one ballot box at a voting pre- 
 cinct, the use of two does not justify rejection of the return. 
 
 On July IS, 1882,^ Mr. Gibson Atherton, of Ohio, from the Committee on Elec- 
 tions, submitted the report of that committee in the Virginia case of Stovell v. 
 Cabell. The official returns gave sitting Member a majority of 859 votes. 
 
 The committee say: 
 
 The contestant does not claim in his notice of contest that he was elected a Representative to the 
 Forty-seventh Congress, but that he would have been elected but for certain wrongs of which he com- 
 plains. To all of contestant's allegations the contestee interposed a general as well as a specific and 
 particular denial, and challenged the proof. 
 
 The contestant has not attempted to substantiate by proof any of the grounds of contest specified 
 in his notice, except such as relate to the precincts of Danville, Cascade, Brosville, Hall's Crossroads, 
 and Ringgold, in the county of Pittsylvania; Charity and Gates's Store, in Patrick County; and HUls- 
 vUle and Dalton's Store, in the county of Carroll. 
 
 He has offered some testimony, which has been duly considered, relating to the precinct of Phillips's 
 Store, Nesters, Fancy Gap, and Smith's Mill, in Carroll County. But these precincts are not mentioned 
 in the notice of contest, and the depositions relating to them were objected to for that reason by the con- 
 testee, and are inadmissible. Besides, the depositions were, in disregard of the contestant's objections, 
 taken in Carroll County by a Pittsylvania County notary, who had no authority, under State or Federal 
 law, to take them. 
 
 If all the demands made by the contestant in his notice of contest respecting the precincts to which 
 his proofs relate be conceded, the result will be as follows: Cabell, 10,225; Stovell, 9,844; a majority of 
 381 for sitting Member. 
 
 The conunittee examined the testimony of contestant, however, but find it 
 inconclusive. 
 
 It was shown that at Hall's Crossroads separate ballot boxes were used to 
 receive the votes of white and colored voters. The report says of this: 
 
 The testimony shows that two boxes had been used since the period of reconstruction, without 
 objection from any source. 
 
 There is no statute which expressly, or by necessary implication, forbids the use of two boxes in 
 that way. The only question is whether their use interfered with the purity, freedom, or convenience 
 of the election. That it did not is incontestably proven by the testimony. 
 
 ' Journal, p. 250. 
 
 ^Journal, pp. 559, 560 
 
 ^ First session Forty-seventh Congress, House Report Xo. 169G; 2 Ellsworth, p. 667.
 
 878 PRECEDENTS OF THE HOUSE OF KEPEESENTATIVES. § 682 
 
 As to Charity precinct, the report says: 
 
 The contestant, in his notice of contest, asserts that the county canvassers of Patrick County ille- 
 gally rejected the returns of Charity precinct, and demands that the returned vote of this precinct be 
 counted. 
 
 But his own proof shows that the only return made by the judges of election of the precinct was a 
 return of the vote for electors of President and Vice-President, which return wholly omits the votes cast 
 for the Republican electoral candidates. It shows that the judges of election made no return at all of 
 the vote for Representative in Congress. The omission of the county canvassers to canvass votes not 
 returned was not illegal. On the contrary, the canvass of votes not returned would have been a lawless 
 proceeding. 
 
 If it were true, as the contestant asserts in his brief, that 51 votes were cast for the contestant, and 
 only 20 for the contcstee, at this precinct, the contestant might have availed himself of the net result by 
 proper averments in his notice, duly supported by legal proof. But he made no such averments. His 
 only averment was that the county canvassers illegally rejected the return; and that averment was not 
 true. Nor is the testimony taken on the subject before the county clerk admissible. 
 
 In accordance with their views the committee reported resolutions confirming 
 the title of sitting Member to the seat. 
 
 These resolutions were agreed to by the House without division or debate.' 
 
 682. The Pennsylvania election case of Reynolds v. Shonk, in the 
 Fifty-second Congress. 
 
 The notice of contest in an election case must be specific in its alle- 
 gations. 
 
 A notice of contest condemned in an election case as inadequate. 
 
 The Committee on Elections sometimes hears a contest on its merits, 
 although the notice may fail in definiteness. 
 
 On January 17, 1893/ Mr. Littleton W. Moore, of Texas, from the Committee 
 on Elections, submitted the report in the Pennsylvania case of Reynolds v. Shonk. 
 The contestant had served on sitting Member the following notice of contest: 
 
 Hon. Geo. W. Shonk. 
 
 Sir: This is to notify you that I design and intend to contest your election and your seat in the 
 Fifty-second House of Representatives of the United States, and I specify particularly the grounds upon 
 which I rely. 
 
 First. Fraud in the election, and bribery, intimidation, and corruption of voters, (a) In the use 
 of money with election officials and Democratic poll men. (6) In the piu-chase of voters to vote for you, 
 especially well-known Democratic voters, by the payment of sums of money of various amounts; in the 
 employment of large numbers of men by you, at various prices, each to attend the polls, and by intimi- 
 dation and numbers compel Democratic voters to vote for you; by bargaining with and paying to leaders 
 and influential men of foreign nationality large sums of money, who agreed to and did, by various devices 
 and tricks, by influence and violence, compel or influence their countrymen to vote for you; by the use 
 of the regular Democratic ticket, with your name inserted as the candidate for Congress and my name 
 excluded, and the employment and purchase, with money, of Democrats and others to induce voters to 
 vote the same, by representing this fraudulent ticket to be the straight Democratic ticket; by this and 
 other practices of deception and guile deceiving large numbers of voters; by promise of patronage of 
 office; by agreement to nominate or procure the nomination of individuals to certain offices of oiu- State 
 and the United States; and by engagements to procure executive clemency or immunity from punish- 
 ment for violation of the election laws, voters were induced to cast their votes for you in every election 
 district of the Twelfth Congressional district of Pennsylvania. 
 
 Respectfully, yours, John B. Reynolds. 
 
 Wilkes-Barre, Pa., December 2, 1890. 
 
 ' Record, p. 6174; Journal, p. 1664. 
 
 ^ Second session Fifty-second Congress, House Report No. 2268; RoweU's Digest, p. 477; Stofer's 
 Digest, p. 47; Journal, p. 94.
 
 § 683 PLEADINGS IN CONTESTED ELECTIONS. 879 
 
 Sitting Member filed exceptions to this notice, on the ground that it was too 
 informally drawn and too vague, not stating in what district the election was held, 
 or who were the candidates, or what votes they received, or that the certified result 
 of the election was not correct ; and that it did not give specific instances of wrong- 
 doing, particularizing as to locality, method or form of the alleged unlawful acts. 
 
 The committee, after citing the law of Congress as to notices of contest, say: 
 
 It will be observed that the contestant nowhere claims tnat he was elected, but seeks only to 
 impeach the title of the contestee to the office. The committee took no formal action upon the excep- 
 tions filed to the notice of contest nor pronounced their decision upon it. But we are of opinion that 
 the notice of contest in its various charges upon which there was any testimony is too vague and indefinite 
 and does not conform to the act of Congress referred. 
 
 In Blomberg v. Haralson (Smith's Report of Election Cases, p. 355) the committee say: 
 'The statute requires that the contestant in his notice shall 'specify particularly the grounds upon 
 which he relies in his contest.' It is impossible to conceive of a specification of the grounds of contest 
 broader or more general in its terms. It fixes no place where the act complained of occurred. It 
 embraces the whole district in one sweeping charge. The specifications embrace three general grounds 
 of complaint, not one of which possesses that particularity essential to good pleading." 
 
 The committee, however, heard the case on its merits, but found no evidence 
 sufiicient to assail successful!}' the 1,484 plurality returned for sitting Member. 
 Sitting Member admitted that he spent 89,5.50 in the canvass, but explained to the 
 satisfaction of the committee that the expenditure was for legitimate purposes. 
 Therefore resolutions confirming the title of sitting Member to the seat were recom- 
 mended, and on February 16, 189.3, were agreed to by the House without debate 
 or division. 
 
 683. Instances wherein the House permitted amended notices of con- 
 test to be filed, -with right to file amended answers. 
 
 The House denied the petition of certain electors in a district asking 
 leave to take testimony in an election case. 
 
 On March 14, 1S71,' Mr. George W. McC'rary, of Iowa, submitted from the 
 Committee of Elections the following resolutions, which was agreed to without 
 debate or division: 
 
 Rtsolved, That James H. Harris, contesting the claim of Hon. Sion H. Rogers to a seat in this House 
 as the Representative of the Fourth district of North Carolina, shall be permitted to serve upon said 
 Rogers an amended notice of contest within ten days from and after the passage of this resolution, and 
 that said Rogers be permitted to answer the same within thirty days after the service thereof, and the time 
 for taking testimony under the law is extended sixty days from the date of the service of the answer to 
 said amended notice. 
 
 On April 1.3,^ also, a similar resolution in the case of Schenck v. Campbell pro- 
 vided that the notice of contest might be amended "by adding thereto an allegation 
 charging fraud in the election in the second ward of the city of Hamilton, Ohio, which 
 amendment shall be served on or before," etc. On April 10, 1872,^ Mr. George W. 
 McCrary, of Iowa, from the Committee of Elections, reported adversely petition 
 of certain electors of the district asking leave to take testimony in the case. The 
 petition was laid on the table. 
 
 ' First session Forty-second Congress, Journal, p. 57; Globe, p. 101. 
 
 2 Journal, p. 1.50; Globe, p. 627. 
 
 ' Second session Forty-second Congress, Journal, p. 666; Globe, p. 2342.
 
 880 
 
 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 § 684 
 
 684. The Texas election case of Rosenthal v. Crowley in the Fifty- 
 fourth Congress. 
 
 An instance wherein, after an amended notice of contest had been 
 authorized, the House heard the election case as if it had actually been 
 made. 
 
 On January 21, 1896,' Mr. Samuel M. Stephenson, of Michigan, introduced the 
 following resolution, which was referred to Committee of Elections No. 3: 
 
 Resolved, That the contestant, A. J. Rosenthal, be, and he is hereby, authorized to so amend his 
 notice of contest in the case of A. J. Rosenthal v. Miles Crowley, Tenth Congressional district, State of 
 Texas, by adding thereto the following, to wit: "That there were unlawfully counted in making up the 
 returns from said district divers precincts in Galveston County." [Here follow specifications and 
 numbers of the precincts.] 
 
 The committee, in hearing the case, heard it as if the amendment had actually 
 been made, and it being evident that, even if all should be proved as claimed, the 
 contestant could not make out his case, recommended the resolution adversely and 
 on January 31^ the House laid it on the table. 
 
 As to the merits of the case the committee reported on January 30,^ confirming 
 the title of the sitting Member to the seat, and on January 31^ the House agreed 
 to the report. 
 
 The sitting Member had been returned by a plurality of 1 ,303 votes. Contest- 
 ant asked that votes be excluded in one county because returns received by the 
 county commissioners' court after the limit prescribed by law had been forwarded 
 to the secretary of state ; and in another county where such belated returns had not 
 been forwarded by the coimty commissioners the contestant asked that they be 
 coimted. The committee believed that there was no reason shown why one rule 
 shall not be applied to both cases, and such being the case the plurality of sitting 
 Member could not be attacked successfully. 
 
 685. The Missouri election case of Reynolds v. Butler in the Fifty- 
 eighth Congress. 
 
 Question as to the serving of amended notices of contest in election 
 cases. 
 
 Sundays and legal holidays are not excluded in computing the forty 
 days allowed for taking testimony in an election case. 
 
 In an election case testimony taken ex parte, in another case involv- 
 ing only a portion of the district, was not admitted. 
 
 On December 15, 1904,'^ Mr. Marlin E. Olmsted, of Pennsylvania, from the 
 Committee on Elections No. 2, presented the report of the committee in the Missouri 
 election case of Reynolds v. Butler. 
 
 The report states the case as follows: 
 
 At the regular Congressional election in 1900, James J. Butler was returned as elected to a seat in 
 the Fifty-seventh Congress. His election was contested by William M. Horton. The Committee on 
 
 ' First session Fifty-fourth Congress, Journal, p. 134; House Report No. 197; Rowell's Digest, p. 529. 
 
 -Journal, p. 166. 
 
 'House Report No. 177. 
 
 'Journal, p. 166. 
 
 'Third session Fifty-eighth Congress, Record, pp. 313-317; House Report No. 3129.
 
 § 685 
 
 PLEADINGS IN CONTESTED ELECTIONS. 881 
 
 Elections No. 1, to which the contest was referred, reported that, "fraud so permeated the conduct of 
 the election in a la'ge part of the district as to prevent a full, free, and fair expression of the public desire 
 in respect to the election of a Representative in Congress," and the House, on the 28th of June, 1902 
 adopted a resolution declaring the seat vacant. 
 
 The governor of Missouri thereupon ordered a special election. Mr. Butler was again a candidate 
 and returned as elected to fill the vacancy caused by his own unseating. His opponent in that election 
 was Mr. George C. R. Wagoner, who contested his seat in the second session of the Fifty-seventh Congress, 
 which assembled on the first Monday of December, 1902. 
 
 .*.s the time fixed by statute for the taking of testimony would have carried the case beyond tne 
 expiration of the term for which Wagoner claimed to have been elected, he presented a memorial to the 
 House, which, on the 11th day of December, 1902, adopted a resolution specifying a certain time within 
 which the contestant might take testimony, a certain time for the contestee, and again a certain time 
 for the contestant in rebuttal, and required the Committee on Elections No. 2 to consider and report 
 upon the case so that it might be disposed of during the life of that Congress. That committee reported 
 that by reason of gross frauds, clearly shown, making it impossible to ascertain the legal votes cast the 
 returns from certain precincts must, in accordance with the well-established precedent of the House and 
 the rule laid down by courts and learned authors, be entirely rejected, and that Wagoner had been duly 
 elected and was entitled to his seat. Resolutions to that effect were adopted by the House, and Wagoner 
 seated February — , 1903. 
 
 November 4, 1902, the day fixed by the governor for holding the special election for filling the 
 vacancy in the Fifty-seventh Congress, was also the day fixed by law for the general election, at whicn 
 there was to be chosen a Representative in this the Fifty-eighth Congress. Mr. Butler was a candidate 
 for that seat also and was opposed by Mr. George D. Reynolds, the present contestant. 
 
 The Missouri legislature had by act of March 16, 1901, redistricted the State, so that the district in 
 which Reynolds competed with Butler for a seat in the Fifty-eighth Congress was not identical with the 
 district in which Wagoner, upon the same day, competed with Butler for a seat in the Fifty-seventh Con- 
 gress. Although the district, which is within the city of St. Louis, is still known as the Twelfth, at least 
 one-half of it, territorially speaking (and being the one-half in which Wagoner received his majority), 
 had been cut off from the district, while some new territory had been added. To be explicit, precincts 
 1. 2. 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13 of the Twenty-fourth Ward; precincts 1 and 2 of the Twenty- 
 eighth Ward; precinct 11 of the Twelfth Ward; precinct 12 of the Seventh Ward; precinct 1 of the Twen- 
 tieth Ward, and precincts 1 and 2 of the Twenty-first Ward, which formed part of the district in which 
 Wagoner ran against Butler for a seat in the Fifty-seventh Congress, were not in the district in which 
 Reynolds ran against Butler for a seat in the Fifty-eighth Congress, while precincts 7, 8, 9, 10, 11, 12 and 
 13 of the Twenty-fifth Ward, and precincts 2, 3, and 4 of the Fifteenth W'ard, which never had been in 
 the district in which Wagoner ran against Butler, are in the district in which Reynolds ran against Butler. 
 All of the Fourth, Fifth, Sixth, Thirteenth, Fourteenth, and Twenty-third wards and parts of the Fif- 
 teenth, Twenty-second, and Twenty-fifth wards were in both districts. 
 
 Differently stated, the old district in which Wagoner ran against Butler for the Fifty-seventh Con- 
 gress, contained 20 election precincts which are not in the present district in which Reynolds ran against 
 Butler for a seat in the Fifty-eighth Congress, and 10 precincts in the present district in which Reynolds 
 ran were not in the district in which Wagoner ran. 
 
 The returns of the election for the Fifty-eighth Congress showed Butler to have received 1.5,316 
 votes and Reynolds 8,698, an apparent majority of 6,618 for Butler, who was sworn in at the beginninc 
 of the present Congress and now occupies the seat which Reynolds contests. 
 
 In his notice of contest, in more or less general terms, he charges frauds of various kinds, and in the 
 ninth paragraph thereof specifically charges that in sundry precincts, therein set forth, there were frauds 
 so gross and extensive that it was impossible to ascertain the actual and legal votes, and that the returns 
 should therefore be rejected altogether. 
 
 The contestant was not diligent in prosecuting his contest. Provision for the taking of testimony 
 in such cases is found in section 107, United States Revised Statutes, which reads thus: 
 
 "Time for taking testimony: In all contested election cases the time allowed for taking testimony 
 shall be ninety days, and the testimony shall be taken in the following order: The contestant shall take 
 
 5994— VOL 1—07 56
 
 g82 PRECEDENTS OF THE HOUSE OF KEPBESENTATIVES. § 685 
 
 testimony during the first forty days, the returned Member during the succeeding forty days, and the 
 contestant may take testimony in rebuttal only during the remaining ten days of said period." 
 The act of March 2, 1875, chapter 119, section 2, declares: 
 
 "That section 107 of the Revised Statutes of the United States shall be construed as requiring all 
 testimony in cases of contested election to be taken within ninety days from the day on which the answer 
 of the returned Member is served upon the contestant." 
 
 In this case the notice of contest was dated December 20, 1902. Mr. Butler's answer was served 
 December 22, 1902. Contestant thereupon served an additional or supplemental notice of contest, to 
 which the contestee made reply December 24. The statute makes no provision for the servace of addi- 
 tional grounds of contest, and these amended specifications must be considered, if received at all, as 
 served in the original notice of contest. (McDuffy v. Torpin, Stofer, 355; McCrary on Elections, 448.) 
 Certainly after answer filed, a supplemental notice of contest can not be held to extend the time for the 
 taking of testimony. Contestee's answer having been served December 22, 1902, the forty calendar days 
 expired with the 31st day of January, 1903. Within those forty days contestant called no witnesses and 
 took no testimony whatever. On the forty-second day (February 2), contestant proposing to take testi- 
 mony, and having himself been sworn, counsel for contestee objected to the taking of any testimony 
 whatever, and in his statement of objections said, inter alia: 
 
 "George D. Reynolds has slept on his rights, and the forty days during which Congress says testi- 
 mony for contestee shall be taken have expired without his having taken any testimony whatsoever, 
 and George D. Reynolds has, to all intents and purposes, abandoned his contest, and can not now revive 
 the same in the time allotted to contestee in which to take testimony had he obeyed the mandatorj' 
 provision of the law." 
 
 This and other objections were spread at length upon the record. Contestant was then himself 
 examined, but testified simply to the service of notice of contest and of the additional grounds of contest. 
 Two other witnesses testified also as to the service of these papers, and the papers themselves were put in 
 evidence as exhibits, whereupon the further taking of testimony was adjourned until February 3. This 
 was the forty-first calendar day after the service of the answer to the additional notice of contest and the 
 forty-third after the service of the answer to the original notice. One witness was examined and an 
 adjournment had to February 4 (the forty-fourth day). Two witnesses were then examined and an 
 adjournment had to February 5 (the forty-fiftli day). Depositions were also taken on the 6th, 7th, 9th, 
 10th, and 11th of February (the forty-sixth, forty-seventh, forty-ninth, fiftieth, and fifty-first days). No 
 testimony was at any time taken by contestee and none by contestant between February 11 and March 
 31. Upon the latter date (the one hundredth day) certain testimony was taken by contestant. Also 
 upon the 1st, 2d, 3d, 6th, 7th, and 10th of April (the one hundred and first, one hundred and second, 
 one hundred and third, one hundred and sixth, one hundred and seventh, and one hundred and 
 tenth days). 
 
 Contestant insists that in computing the time under the statute, Sundays and legal holidays must be 
 excluded so as to leave forty working days. It has never been so considered and we can not take that 
 view. Section 108 of the Revised Statutes, being part of the same act, referring to notice of intention to 
 take depositions, requires that it "shall be served so as to allow the opposite party sufficient time by the 
 usual route of travel to attend and one day for preparation, exclusive of Sundays and the day of service." 
 The exclusion of Sundays in one section and not in the other is very significant. In section 1007 it is 
 provided that in order to make a writ of error a supersedeas it must be ser\'ed upon the adverse party 
 "within sixty days, Sundays exclusive," and generally where Congress has intended to exclude Sun- 
 days it has so stated. 
 
 "Sundays are included in computations of time, except when the time is limited to twenty-four 
 hours, in which case the following day is allowed." (Endich on Statutes, sec. 393.) 
 
 "In the computation of statute time an intervening Sunday is to be counted, unless expressly 
 excluded by the statute." (King v. Dowdall, 2 Sand., 131 N. Y.) 
 
 Mr. Justice Brown, in Monroe Cattle Co. v. Becker (147 U.S., 55) states the general rule to be — 
 "that when an act is to be performed within a certain number of days and the last day falls on Sunday, 
 the person charged with the performance of the act has the following day to comply with his obligation." 
 Subject to that rule we hold that the statute means calendar days. The contestant took no testi- 
 mony whatever within the time prescribed by the statute, and some upon which he relies was taken 
 many days after the statutory period, even if construed as he desires.
 
 § 685 PLEADINGS IN CONTESTED ELECTIONS. 883 
 
 It is quite true that the statute providing and limiting the time for the taking of testimony is not 
 binding upon this House, which under the Constitution is the only and absolute judge of the qualifica- 
 tions and elections of its Members. But, as has frequently been held, it furnishes a wise and wholesome 
 rule of action and ought not to be departed from except for sufficient cause shown, or where the interests 
 of justice clearly require. It would seem that contestant might have commenced and concluded his 
 testimony in this case within forty days. Certainly he might have commenced. No reason whatever 
 appears upon the record why he could not, or did not, but upon the argument before yoiir committee it 
 was stated that counsel for the present contestant were also counsel for Wagoner in his contest, and that 
 some or all of them were engaged upon that case most of the time. There must, however, have been 
 other counsel in St. Louis quite capable of taking such testimony as was taken in this case. 
 
 The report then goes on to cite testimony to show the character of the evidence 
 produced. The contestant called the notaries public before whom testimony was 
 taken in the case of Wagoner v. Butler, and \>j them proved carbon copies of the 
 depositions taken in that case. The report says as to this procedure : 
 
 Mr. Butler was not present, either in person or by counsel, at this hearing, having previously 
 given notice that he would not attend any hearing, as he protested against the right of contestant to take 
 any testimony at all after the expiration of forty calendar days. Neither of the witnesses Moore and 
 Halter were examined at all touching the case of Reynolds against Butler. They were called for the 
 single purpose of introducing in that way the testimony of witnesses examined before them, as notaries 
 public, in the Wagoner case. No notice was given Butler that the testimony of the witnesses in the 
 Wagoner case was thus to be introduced, and the notice serv'ed upon him of contestant's intention to 
 take testimony did not include even the names of Moore and Halter. Several other notaries before 
 whom depositions were taken in the Wagoner case were also called, and in like manner there were 
 introduced carbon copies of the depositions taken before them in the Wagoner case. The testimony of 
 21 witnesses in the Wagoner case was thus introduced April 10, 1903 (the one hundred and tenth day). 
 These witnesses were examined in the Wagoner case between December 19 and December 27, 1902, and 
 the only reason given for delay in introducing copies of their depositions in the Reynolds case was that 
 the notary would not surrender carbon copies until his fees were paid. 
 
 It is not pretended that the testimony taken directly in this contest makes out a case against the 
 sitting Member, but contestant relies upon the testimony taken in the Wagoner case and proved, or 
 attempted to be proved, by the notaries public in the manner above indicated. For the competency of 
 this exadence his counsel rely upon Greenleaf on E^ddence, section 553, which they cite in their brief 
 as follows: 
 
 "In regard to the admissibility of a former judgment in e^ddence, it is generally necessary that there 
 be a perfect mutuality between the parties, neither being concluded unless both are alike bound. But 
 with respect to depositions, though this rule is admitted in its general principle, yet it Ls applied with 
 more latitude of discretion; and complete mutuality is not required. It is generally deemed sufficient, 
 if the matters in issue were the same in both cases, and the party against whom the deposition is offered 
 had full power to cross-examine the witness." 
 
 That is not a fair citation, as it omits more than half of the section, particularly the following: 
 
 "If the power of cross-examination was more limited in the former suit in regard to the matters in 
 controversy in the latter, it would seem that the testimony ought to be excluded." 
 
 Furthermore, it omits the fact, manifest from a reading of the entire section, and particularly in 
 connection with section 163, that the learned author referred, in any event, only to cases in which the 
 witnesses were dead or for some other reason not compellable to testify in person. 
 
 The matter in issue in the Wagoner case was the right to a seat in the Kfty-seventh Congress from 
 the old district. The matter in issue in this controversy is the right to a seat in the Fifty-eighth Congress 
 from the new district. The matters in issue are therefore not identical. The parties are not the same, 
 except that ilr. Butler, the contestee here, was also the contestee in the Wagoner case. He certainly 
 did not, in the Wagoner case, have "full power to cross-examine" the witnesses touching the Reynolds 
 case. His "power of cross-examination was more limited in the former suit, in regard to the matters in 
 controversy, than in the latter." Indeed, in the Wagoner case, which related solely to a seat in the Fifty- 
 seventh Congress, he had no opportunity to cross-examine witnesses at all concerning his controversy
 
 884 
 
 PKECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 § 685 
 
 with Reynolds for a seat in the Fifty-eighth. No questions concerning the Reynolds contest were asked 
 in direct examination of the witnesses, and cross-examination concerning it would not have been in 
 order. As a matter of fact, he did not cross-examine them at all in the Wagoner case. Doubtless he 
 had his own reasons for not doing so. He may have thought it useless to make much of a fight in that 
 district, and yet he might have been very anxious to cross-examine them touching the present contest, 
 involvinc an election from a changed district more favorable to his party because of the elimination of 
 sundry Republican precincts which had been in the old district. He was certainly under no obligation 
 to cross-examine them in the Wagoner case, and the fact that he did not is no bar to his right to cross- 
 examine them in this entirely different controversy. 
 
 It is asserted in contestant's brief that the elections were held by the same officers and by the use 
 of the same official ballots, but he has failed to show even that fact by any evidence offered in the case. 
 It is not claimed that the witnesses, whose testimony in the Wagoner case contestant seeks to introduce, 
 are dead or were for any other reason beyond the reach of service of subpoena. So far as we are advised 
 their presence could readily have been secured, and failure to call them was based purely on reasons 
 of convenience and expense. Under such circumstances, copies of their depositions would not be 
 admissible in a court of justice. 
 
 But there is a further objection. Section 108 of the Revised Statutes requires that the party 
 desiring to take depositions in a contested election case " shall give the opposite party notice, in writing, 
 of the time and place when and where the same will be taken, of the names of the witnesses to be 
 examined and their places of residence." Mr. Butler was not given the names of the witnesses whose 
 testimony, in the Wagoner case, it was proposed to introduce in this contest, and in at least one 
 important instance the notice to him did not even give the names of the notaries public who were called 
 as witnesses in this contest for the purpose of proving the depositions of numerous witnesses in the 
 Wagoner case. 
 
 But, even if all the testimony offered by contestant were to be received and given its full effect, 
 it is deficient in at least one very important particular. In the notice of contest it is alleged that over 
 10,000 illegal ballots were received and counted by the judges of election, and that "the parties so 
 voting were not legally registered voters and were not entitled to vote at said election." We find upon 
 examination of the published report of the committee which passed upon the Wagoner case in the 
 Fifty-seventh Congress that the result in that case was largely based upon the reception of illegal ballots 
 from persons whose names did not appear upon the official printed registry sheets. We find in the record 
 in this pending controversy, commencing at page 666, a paper entitled "Contestant's Exhibit No. 14 
 of February 4, 1903— James D. Halter, notary public, city of St. Louis, Mo." This exhibit purports to 
 contain the depositions of 90 witnesses examined before J. T. Sanders, notary public, in the Wagoner 
 case, between December 13, 1902, and January 3, 1903. 
 
 It does not appear from the record that Sanders, before whom the depositions were taken, was called 
 as a witness, or that Halter, as notary public, took any depositions at all in this, the Reynolds case- 
 We are therefore at a loss to account for the appearance in this record of these 90 depositions. We were 
 inclined to think that Sanders, the notary public before whom depositions were taken in the Wagoner 
 case, was called as a witness in this case before Halter, acting as notary public, and handed in carbon 
 copies of the depositions of these witnesses, and that the contestant, while sending Exhibit No. 14, failed 
 to return the deposition of Sanders showing the offering of the exhibit. A letter from contestant's 
 counsel shows this to have been the case. 
 
 However that may be, we find among these 90 depositions, constituting the so-called Exhibit No. 
 14, that of Louis P. Aloe, who, in the Wagoner case, produced a book, concerning which he said: 
 
 "This is the complete printed register of the qualified voters of the Twelfth Congressional district 
 for the election of November 4 and thereafter, 1902 — that is, the official list." 
 
 It appears from the testimony that that book was marked "Exhibit C" in the Wagoner case. It 
 was not printed with the testimony in that case. But it was undoubtedly submitted to and used by the 
 conunittee in preparing its report. It was not, however, sent by contestant Reynolds to the Clerk of the 
 House with the testimony in this case, nor produced before your committee, and therefore, although we 
 find in the testimony what purport to be lists of the names of the persons who voted, showing also whether 
 they voted for Butler or for Reynolds, we are utterly unable to teU who of said voters were registered and 
 who were not, or to what extent such persons as were unregistered voted, either for Butler or for 
 Reynolds.
 
 § 686 PLEADINGS IX CONTESTED ELECTIONS. 885 
 
 Our conclusions are more succintly stated in the following 
 
 SUMMARY. 
 
 1. No part of contestant's testimony was taken within the forty days allowed by statute for that 
 purpose, and some of it was taken as late as the one hundred and tenth day after answer filed. No good 
 and sufficient reason has been shown for the delay. 
 
 2. The witnesses upon whose testimony contestant relies were not called and examined in this case, 
 but he has introduced carbon copies of their depositions, taken by a different contestant in a former case, 
 concerning a seat in a different Congress, and from a different district. The present contestee was con- 
 testee also in the earlier case, but did not then have fiill power of cross-examination of said witnesses 
 touching the present contest. 
 
 3. The contestee was not given the names of the witnesses in the former case whose depositions 
 contestant proposed to introduce in this case, nor of his intention to introduce such testimony, and 
 in some instances was not given in advance, as the statute requires, the names of the witnesses who 
 were called in this case and by whom the depositions of the witnesses in the former case were proved or 
 attempted to be proved. 
 
 4. There is no evidence that all or any of the witnesses, carbon copies of whose depositions in the 
 Wagoner case have been introduced in this case, are dead or were for any other reason not compellable to 
 attend and testify in this contest. 
 
 5. Neither the original nor any copies of the official registry lists having been furnished, it is 
 impossible to determine what votes were illegal by reason of ha\ing been cast by unregistered persona 
 as charged. 
 
 Upon the whole case your comjnittee recommends the adoption of the following resolution, viz: 
 ''Resolved, That Committee on Elections No. 2 shall be, and is hereby, discharged from further 
 
 consideration of the contested election case of George D. Reynolds r. James J. Butler from the Twelfth 
 
 Congressional district of Missouri." 
 
 After brief debate, from which it appeared that the report of the committee 
 was practically unanimous, the resolution proposed by the committee was agreed 
 to without division. 
 
 686. The Virginia election case of Beach v. TJpton in the Thirty- 
 seventh. Congress. 
 
 Rule prescribed by the House for serving notice and taking testimony 
 in a delayed election case. 
 
 Instance in 1861 of an election contest instituted by memorial. 
 
 In 1861, at the extraordinan- session of the Thirty-seventh Congress, Mr. 
 Charles H. Upton, of the Seventh Congressional district of Virginia, had been 
 allowed the prima facie title to the seat, the House laying on the table a motion 
 to refer his credentials to the Committee on Elections. Mr. Upton's credentials 
 purported to show that he had been elected on May 23, 1861. 
 
 On December 6, 1861,' when the second or regular session of the Congress 
 opened, there was presented a memorial of Mr. S. Ferguson Beach, denying the 
 authority of Mr. Upton to hold his seat, and claiming that he had, himself, been 
 elected Representative of the district on October 24, 1861. 
 
 On December 9, 1861,^ Mr. Henry L. Dawes, of Massachusetts, reported from 
 the Committee on Elections the following resolution, which was agreed to without 
 debate : 
 
 Resolved, That S. F. Beach, contesting the right of Hon. Charles H. Upton to a seat in this House 
 as a Representative from the Seventh district of the State of Virginia, be, and he is hereby, required 
 
 ' Second session Thirty-seventh Congress, Journal, p. 7; House Report No. 42. 
 -Journal, p. 47.
 
 886 PBECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 687 
 
 to serve upon the said TJpton, within six days after the passage of this resolution, a particular statement 
 of the grounds of said contest; and that the said TJpton be, and he is hereby, required to serve upon 
 the said Beach his answer thereto in six days thereafter; and that both parties be allowed twenty days 
 next after the service of said answer to take testimony in support of their several allegations and denials 
 before some person residing in said district, or the District of Columbia, authorized by the laws of 
 Virginia or of the United States to take depositions, but in all other respects in the manner prescribed 
 in the act of February 19, 1851. 
 
 On February 3, 1862," Mr. Upton presented as a question of privilege a reso- 
 lution directing the Committee on Elections to summon before them certain of the 
 election officers at one of the precincts of the district. 
 
 This resolution was laid on the table, the chairman of the Committee on Elec- 
 tions stating that the committee had all the testimony it required. 
 
 687. The election case of Morton and Daily from the Territory of 
 Nebraska in the Thirty-seventh Congress. 
 
 The revocation of credentials having reversed the position of the 
 parties, the House by resolution authorized investigation without regard 
 to notice. 
 
 On July 8, 1861/ the House, without debate or division, agreed to the following: 
 
 Resolved, That the papers in the case of the contested seat for Delegate from the Territory of 
 Nebraska be referred to the Committee on Elections, and that they be authorized to investigate and 
 report on the same without regard to notice. 
 
 This was a case where Mr. Samuel G. Daily, who had taken testimony under 
 the law of 1851 as contestant, had by reason of the revocation of the certificate of 
 his opponent, become the sitting Member. And Mr. J. Sterling Morton, who had 
 acted under the law as sitting Delegate, had become contestant. 
 
 688. The Senate election case relating to Simon Cameron, from Penn- 
 sylvania, in the Thirty-fourth Congress. 
 
 The Senate declined, on vague and indefinite charges of corruption, 
 to investigate the election of a duly returned Member. 
 
 On March 11 and 13, 1857,^ the Senate considered a report of the Committee 
 on the Judiciary, which was as follows in regard to a protest signed by members of 
 the house of representatives of Pennsylvania : 
 
 It is a general allegation "that the election of the said Simon Cameron was procured, as they are 
 informed and believe, by corrupt and unlawful means, influencing the action and votes of certain 
 members of the house of representatives," and the Senate of the United States is asked to investigate 
 the charge. 
 
 The committee can not recommend that this prayer be granted. The allegation is entirely too 
 vague and indefinite to justify such a recommendation. Not a single fact or circumstance is detailed 
 as a basis for the general charge. Neither the nature of the means alleged to be corrupt and unlawful, 
 nor the time, place, or manner of using them, is set forth, nor is it even alleged that the sitting Member 
 participated in the use of such corrupt means, or, indeed, had any knowledge of their existence. Under 
 no state of facts could your committee deem it consistent with propriety, or with the dignity of this body, 
 to send out a roving commission in search of proofs of fraud in order to deprive one of its Members of a 
 seat to which he is, prima facie, entitled; still less can they recommend such a course when the parties 
 alleging the fraud and corruption are themselves armed with ample powers for investigation. If it be, 
 indeed, true that members of the house of representatives of Pennsylvania have been influenced by 
 
 > Journal, p. 262; Globe, p. 608. 
 
 ^ First session Thirty-seventh Congress, Journal, p. 51; Globe, p. 26. 
 
 ^ Third session Thirty-fourth Congress, Appendix of Globe, pp. 387, 391; 1 Bartlett, p. 627.
 
 & 689 PLEADIXGS IN CONTESTED ELECTIONS. 887 
 
 corrupt considerations or unlawful appliances, the means of investigation and redress are in the power 
 of the very parties who seek the aid of the Senate of the United States. Let their complaint be made 
 to the house of which they are members, and which is the tribunal peculiarly appropriate for conducting 
 the desired investigation. That their complaint wiU meet the respectful consideration of that house 
 yoiur committee are not permitted to doubt. If upon such investigation the facts charged are proven, 
 and if they, in any manner, involve the character of the recently -elected Member of this body from the 
 State of Pennsylvania, the Constitution of the United States has not left the Senate without ample means 
 for protecting itself against the presence of unworthy Members in its midst. 
 
 There was debate and some dissent; but a resolution discharging the committee 
 from further consideration, as requested by the committee, was agreed to wathout 
 division. 
 
 689. The Senate election case relating to S. C. Pomeroy, of Kansas, 
 in the Forty-second Congress. 
 
 The evidence being insufficient to show that the election of a Senator 
 was effected by corrupt means, the Judiciary Committee asked to be 
 discharged from consideration of the case. 
 
 On Jime 3, 1872/ in the Senate, ^Ir. John A. Logan, of Illinois, submitted 
 the following report : 
 
 The Committee on Pri^-ileges and Elections, to whom was referred a certified copy of the report 
 of the joint committee of investigation appointed by the Kansas legislature of 1872 to investigate all 
 charges of bribery and corruption connected with the Senatorial elections of 1867 and 1871, met on 
 the 20th of April, 1872, and directed the clerk of said committee to prepare an abstract of the evidence 
 furnished by the said report of the legislature of Kansas. On the 23d of April your committee met 
 and adjourned over until the 24th, when, on account of sickness in the family of Senator Thurman, 
 the case was postponed until he should retiim from a visit home. 
 
 On May the 11th your committee met and adopted the following resolution: 
 
 "Resolved, That the chairman of the committee do ask the Senate for leave to send for persons 
 and papers in reference to the elections of both 1867 and 1871, and that the committee have leave to 
 sit in the vacation and to take testimony by either the whole committee or a subcommittee, at Wash- 
 ington or elsewhere; that, in asking for authority as aforesaid, the chairman be requested to state that 
 the committee express no opinion upon the subject." 
 
 On the same day the Senate, in response to the request of the committee, adopted the following 
 resolution: 
 
 In the Senate of the United St.\tes, May 11, 1872. 
 
 Resolved, That the Committee on Privileges and Elections be authorized to investigate the elec- 
 tion of Senator S. C. Pomeroy, by the legislature of Kansas, in 1867, and the election of Senator Alex- 
 ander Caldwell in 1871; that the committee have power to send for persons and papers; that the chair- 
 man, or acting chairman, of said committee, or any subcommittee thereof, have power to administer 
 oaths, and that the committee be authorized to sit in Washington, or elsewhere, during the session 
 of Congress and in vacation. 
 
 Attest: 
 
 Geo. C. GoRH.iM, Secretary. 
 
 By W. J. McDonald, CltUf Clerk. 
 
 On the 13th of May your committee met, and, in accordance with the authority conferred upon 
 them by the resolution of the Senate, directed all witnesses in reference to the charges against S. C. 
 Pomeroy, Senator from the State of Kansas, to be summoned to appear forthwith and testify in 
 reference to said charges, and also the clerk of the committee was directed to make inquiry who is 
 the present custodian of the books and papers of the late Perry Fuller, of Washington, D. C; and, Lf 
 such information can be had, that the party having possession of his account books, check books, 
 
 ' Second session Forty-second Congress, Senate Report No. 224; Election Cases, Senate Docu- 
 ment Xo. 11, special session Fifty-eighth Congress, p. 426.
 
 888 PKECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 689 
 
 and bank books, for the time between December 1, 1866, and February 1, 1867. be summoned to appear 
 with them. 
 
 On motion, the committee adjourned subject to the call of the chairman. 
 
 On the 21st day of May your committee was called together for the purpose of proceeding with 
 the examination, a portion of the witnesses having arrived. 
 
 Senator Caldwell, of Kansas, appeared and urged an early examination and disposition of the 
 question in reference to his election in 1871. Your committee, however, considering the time too 
 short during the sitting of Congress to thoroughly investigate both Senatorial elections, concluded 
 to proceed only with the investigation of the election of Mr. Pomeroy in 1867, leaving the case of 
 Mr. Caldwell to be examined during the vacation of Congress, or at such time as may be agreed 
 upon by your committee. 
 
 The examination of the witnesses in the case of Mr. Pomeroy was then proceeded with, and 
 continued from day to day until the case was closed. 
 
 Your committee respectfully submit all the testimony, and report as follows: 
 
 1. That it appears from the evidence that two United States Senators were elected by the 
 Kansas legislature in 1867, Mr. S. C. Pomeroy for a full term of six years, and Mr. Ross for an unexpired 
 term of four years from the 4th day of March, 1867; tliat the candidacy of Mr. Pomeroy was generally 
 understood by the people of Kansas during the election of members of the legislature who were to elect 
 Senators for the State of Kansas, and that the election of Mr. Pomeroy as one of those Senators was 
 generally conceded; that all candidates against Mr. Pomeroy for the long term withdrew from the con- 
 test, save Mr. A. L. Lee. Mr. Pomeroy, in joint convention of the two houses of the legislature, received 
 84 votes; Mr. Lee received 25 votes; the disparity of votes being so great as to preclude of itself the 
 idea that the election of Mr. Pomeroy, against the will of the constituents of those who voted for him, 
 was procured by corrupt means. 
 
 2. There is no evidence that Mr. Pomeroy, or anyone for him, used any money or other valu- 
 able thing to influence any vote in his favor, or in any manner to bring about his election, except hear- 
 say, and this is plainly contradicted by the direct testimony of the parties either to whom or by whom 
 it is alleged such considerations were given. 
 
 3. The evidence that Mr. Pomeroy's canvass for Senator cost him considerable money is clearly 
 shown to be the expenses paid by him for himself and friends during the Senatorial convass, for hotel 
 accommodations, disconnected entirely with the vote of any member, either for or against him. 
 
 4. The evidence shows that some of the friends of Mr. Pomeroy have been appointed to office 
 under the Government of the United States, but fails to show that they were appointed in consider- 
 ation of any vote or any influence used by them in procuring the election of Mr. Pomeroy, and your 
 committee beg leave to say that they can find no fault with Mr. Pomeroy or anyone else (when they 
 recommend for appointment to office) that they recommend their friends instead of their enemies. 
 
 5. It appears from the evidence that Mr. Pomeroy engaged, for a compensation to be made, the 
 services of the Lawrence State Journal to advance the interests of the Republican candidates and of 
 the Republican party in the State of Kansas in the year 1866, but it also appears that said journal 
 broke its engagement, and supported the Conservative or Democratic ticket. 
 
 Your committee therefore, after maturely considering the testimony adduced before them, are 
 clearly of the opinion that the charges of bribery and corruption against S. C. Pomeroy, connected 
 with his Senatorial election by the Kansas legislature in 1867, totally fail to be sustained by any com- 
 petent proof, but seem to have been urged for some purpose, unknown to your committee, beyond 
 that of correcting existing evUs. Your committee therefore beg to be discharged from the further 
 consideration of the same. 
 
 O. P. Morton, 
 B. F. Rice, 
 John A. Logan, 
 H. B. Anthony, 
 Matt. H. Carpenter, 
 
 Committee. 
 
 We concur with the other members of the committee in the finding that there is not evidence 
 before us sufficient to show that Mr. Pomeroy's election was procured by the use of corrupt means; 
 and having no definite, reliable information leading to the conclusion that further investigation would
 
 § 690 PLEADINGS IN CONTESTED ELECTIONS. 889 
 
 develop such, evidence, we concur in the recommendation that the committee be discharged from 
 
 the further consideration of the subject. Here we think that our duty ends. We do not think it proper 
 
 to impugn the motives of those who urged this investigation. The subject was brought to the notice 
 
 of the Senate by the general assembly of Kansas, and, as it seems to us, a proper respect for that body 
 
 precludes an imputation of improper motives. 
 
 We can not, therefore, concur in the last paragraph of the report, and there are other passages 
 
 that do not meet our approval. For these reasons we have preferred to state our views in our own 
 
 language. 
 
 A. G. Thurman. 
 
 Joshua Hill. 
 
 In 1873,^ at the tliird session of the Congress, another investigation was ordered 
 on the motion of Mr. Ponieroy; and on March 3, the last day of the Congress, and 
 the last day of Mr. Pomeroy's Senatorial term, a report was submitted discussing 
 the testimony favorably to Mr. Pomeroy, but with minority views expressing the 
 opinion that the charges were sustained. 
 
 690. The Senate election case of John J. Ingalls, from Kansas, in the 
 Forty-sixth Congress. 
 
 The Senate decided to investigate the election of one of its Members 
 on the strength of a memorial formulating specific charges, and accom- 
 panied by evidence relating thereto. 
 
 Bribery enough to affect the result not being shown, and the Member 
 not being personally implicated, the Senate did not disturb his tenure. 
 
 An election inquiry instituted in the Senate by memorial. 
 
 On March 18, 1879,- at the beginning of the Congress, Mr. John J. Ingalls was 
 sworn in as Senator from Kansas. 
 
 On March 19^ the Vice-President presented the memorial of certain members 
 of the legislature of Kansas in relation to tne election of Mr. Ingalls. This memorial 
 was referred to the Committee on Privileges and Elections. 
 
 On March 27* the Vice-President laid before the Senate the authenticated 
 report of a committee of the Kansas house of representatives which had investi- 
 gated the election of Mr. Ingalls. This was referred to the Committee on Privileges 
 and Elections. 
 
 The memorial^ was addressed to the Senate, and signed by members of the 
 legislature, who represented "that they have good reason to believe that" Mr. 
 Ingalls "secured his election by acts of bribery and corruption." The memorial 
 proceeds with ten specifications, naming instances of bribery or attempted bribery, 
 as well as other matters tending to cast suspicion on the election. The charges as 
 to bribery were specific, naming persons and sums of money. 
 
 The committee, on January 20," reported a resolution authorizing it to investi- 
 gate the charges and statements contained in the memorials, with power to compel 
 testimony, etc., and on June 21 the resolution was agreed to without debate. 
 
 • Senate Document No. 11, special session Fifty-eighth Congress, p. 434. 
 ^ First session Forty-sixth Congress, Record, p. 1. 
 
 ^ Record, p. 15. 
 
 * Record, p. 75. 
 
 ^ Second session Forty-sixth Congress, Senate Report No. 277, pp. 2-4. 
 ' First session Forty-sixth Congress, Record, pp. 2196, 2257.
 
 890 PKECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 691 
 
 On February 17, 1880,^ the committee reported, embodjdng their conclusions in 
 this resolution : 
 
 Resolved, That the testimony taken by the committee proves that bribery and other corrupt means 
 were employed by persons favoring the election of Hon. John J. Ingalls to the Senate to obtain for him 
 the votes of members of the legislature of Kansas in the Senatorial election in that State. But it is not 
 proved by the testimony that enough votes were secured by such means to determine the result of the 
 election in his favor. Nor is it shown that Senator Ingalls authorized acts of bribery to secure his 
 election. 
 
 Three members of the committee presented views concurring in the main 
 conclusion, but calling attention to the fact that persons opposing Mr. Ingalls's 
 election had also resorted to bribery. 
 
 It does not appear that this resolution was acted on, Mr. Ingalls retaining his 
 seat as a matter of course. 
 
 691. The Senate election case of Henry B. Payne, from Ohio, in the 
 Porty-ninth Congress. 
 
 On the ground that the memorials and accompanying papers pre- 
 sented no allegations that proof existed to support the charges, the Sen- 
 ate declined to investigate the election of a Senator. 
 
 Discussion as to the extent to which probable cause should be shown 
 to justify the Senate in investigating charges that an election had been 
 procured by bribery. 
 
 Charges made by the bodies of a State legislature were not consid- 
 ered sufficient ground to justify the Senate in investigating the election 
 of one of its Members. 
 
 No personal participation in bribery being shown, a Senator should 
 be unseated only on proof that enough votes for him had been influenced 
 corruptly to decide the election. 
 
 On March 4, 1885,- at the special session of the Senate, during the swearing in 
 of the Senators-elect, the oath was administered to Mr. Henry B. Payne, of Ohio. 
 
 On April 27, 1886,^ the President pro tempore laid before the Senate a letter 
 from the clerk of the house of representatives of the State of Ohio transmitting 
 testimony taken by a select committee of the house of representatives of Ohio, 
 and the report of the committee as to charges against the official integrity and 
 character of certain members of said house of representatives in connection with 
 the election of Hon. Henry B. PajTie as a United States Senator. 
 
 After a statement by Mr. Payne the papers were referred to the Committee on 
 Privileges and Elections. 
 
 On May 4 ■* Mr. George F. Hoar, of Massachusetts, presented a letter from the 
 secretary of the committee of the Ohio house calling attention to interpolations in 
 the document as printed by the Senate. The letter was referred to the Committee 
 on Privileges and Elections, and the document as printed was recalled. 
 
 ' Second session Forty-sixth Congress, Senate Report No. 277. 
 ' First session Forty-ninth Congress, Record, p. 1. 
 = Record, p. 3861. 
 * Record, p. 4118.
 
 § 691 PLEADINGS IN CONTESTED ELECTIONS. 891 
 
 On May 1 1 ' Mr. Hoar presented a memorial of the Republican State com- 
 mittee of Ohio requesting the Senate to investigate charges of corruption in con- 
 nection \\-ith the election of Mr. PajTie. This memorial, as well as other papers of 
 a similar tenor, including resolutions of both branches of the legislature of Oliio, pre- 
 sented at a later date, was referred to the Committee on Privileges and Elections. 
 
 On July 15- Mr. James L. Pugh, of Alabama, in behalf of a majority of the 
 committee, including besides himself Messrs. Eli Saulsbury, of Delaware, Z. B. 
 Vance, of Xorth Carolina, and J. B. Eustis, of Louisiana, submitted a report ask- 
 ing that the committee be discharged and that the whole matter be postponed. 
 Mr. WilUam M. Evarts, of New York, in behalf of himself and Messrs. Henry M. 
 Teller, of Colorado, and John A. Logan, of Illinois, submitted minority views con- 
 curring in the recommendation of the majority, but discussing the case somewhat 
 differently. Mr. George F. Hoar, of Massachusetts, with Mr. William P. Frye, of 
 Maine, submitted other minority \'iews recommending an investigation. 
 
 The views submitted by Mr. Evarts embody fully the position of the majority 
 of the committee and the issues of the case: 
 
 Upon undisputed facts it appears that of the general assembly of Ohio, as in session and constituted 
 in January, 1884, each house contained a majority of members of the Democratic party; that at a joint 
 caucus of that party held on Tuesday, January 8, upon the first ballot, votes were cast — for Mr. Booth, 
 1 vote; for Mr. Pendleton, 15 votes; for Mr. Ward, 17 votes; and for Mr. Pajiie, 46 votes; thus showing 
 a majority in the caucus of 13 for Mr. PajTie over the united vote of all the other candidates. In regular 
 conduct of the election of Senator by the legislature Mr. Payne was elected, and his credentials were 
 received by the Senate of the United States at the session of March, 1885, and Mr. Paj-ne since then 
 has held, and now holds, a seat as Senator from Ohio in this body. No action was taken by or before 
 the legislature which elected Mr. Payne calling in question the validity of his election or the conduct 
 of the same in the canvass, the caucus, or the legislature itself. 
 
 A new legislature, as in session and constituted in January in the present year, showed a majority 
 of the general assembly of the Republican party, and on the 13th day of January the house of repre- 
 sentatives adopetd the following resolution: 
 
 ''Whereas the Cincinnati Commercial-Gazette of January 12, 1886, contains a printed statement, 
 on the authority of S. K. Donavin, alleging grave charges against the official integrity and characters 
 of members of this house, namely, Hon. D. Baker, Hon. P. Hunt, Hon. W. A. Schultz, and Hon. Mr. 
 Zieglcr, so definite and precise in statements as to call for immediate action in order to vindicate the 
 reputation of members of this house: Therefore, 
 
 "Resolved, That a select committee of five be appointed to inquire into all the facts of the charges 
 so alleged, and report their conclusions to this house at as early a date as possible; and in the prosecution 
 of this inquirj- said select committee are empowered to send for persons and papers and to examine 
 witnesses under oath." 
 
 The select committee commenced the taking of testimony under this inquiry on the 20th January, 
 and concluded the same on the 6th April last. Two reports were made to the house, one presented by 
 a majority of three, and the other by the minority of two. On April 16 the house adopted the following 
 resolution: 
 
 "Resolved by the house of representatives of the sixty-seventh general assembly of the State of Ohio, 
 That the clerk of the house be, and he is hereby, directed to transmit a copy, duly authenticated, of 
 the testimony taken by the select committee appointed in pursuance of house resolution No. 28, and 
 the report of said committee, to the President of the United States Senate, to be by him presented to 
 that body." 
 
 The President pro tempore of the Senate laid before the Senate the testimony and reports, and 
 the same were referred to the Committee on Privileges and Elections. 
 
 ' Record, p. 4344. ^^Rgcord^ p 6948 Senate Report No. 1490.
 
 892 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 691 
 
 The majority report of the committee of the Ohio house presented as their •'conclusion" the fol- 
 lowing statement; 
 
 "Although, as stated in the outset, the testimony developed nothing of an inculpating character 
 concerning the members of this house named in the resolution of inquiry, we believe that circumstances 
 surrounding the election of Henry B. Payne as one of the Senators to represent the State of Ohio in the 
 Congress of the United States, as presented by the testimony, are such as to warrant us in recommending 
 that an authenticated copy of the testimony and report be transmitted to the President of the United 
 States Senate for the information of the body of which Senator Payne is a member, and for such action 
 as it may deem advisable." 
 
 The minority report presented as their conclusion the following statement: 
 
 "The minority of your committee, therefore, find, in conclusion, that there has been no testimony 
 going to show that any unusual or improper methods were resorted to by any person with any member 
 of the sixty-sixth general assembly to induce them to support, or that any member was unduly influ- 
 enced to support, Hon. Henry B. Payne for either his nomination or election to the United States 
 Senate." 
 
 It appears that when the select committee of the Ohio house of representatives was entering upon 
 the inquiry before them the following correspondence took place between Mr. Payne and Mr. Cowgill, 
 the chairman of the select committee, and that Mr. Payne was never advised by the committee that 
 "any testimony tending to inculpate him in any degree witli any questionable transaction" had been 
 received, or any opportunity was afforded him of appearing before the committee; 
 
 "United States Senate, 
 " Washington, D. C, January 22, 1886. 
 "Hon. Thomas A. Cowgill, 
 
 " Chairman, Columbus, Ohio. 
 "Sir; As one branch of the general assembly has appointed a special committee, of which you 
 are the chairman, to investigate the conduct of the Democratic caucus which, in January, 1884, nomi- 
 nated a candidate for United States Senator, and as the matter is thus raised to the plane of respecta- 
 bility and placed in charge of intelligent and honorable gentlemen, I propose to give it appropriate 
 attention. For myself, I invite and challenge the most thorough and rigid scrutiny. My private 
 correspondence and boolis of account will be cheerfully submitted to your inspection if you desire it. 
 I only insist, in case any testimony is given which in the slightest degree inculpates me, I may be 
 afforded an opportunity of appearing before the committee. 
 
 "I am, very respectfully, your obedient servant, H. B. PAYNE." 
 
 "Columbus, Ohio, January 25, 1886. 
 "Hon. H. B. Payne, 
 
 " United Stales Senate, Washington, D. C: 
 
 "Sir: I acknowledge the receipt of your favor of the 22d instant, wherein you note the fact that 
 a special committee of the Ohio house of representatives has been appointed to investigate the conduct 
 of the Democratic caucus, which, in January, 1884, nominated a candidate for United States Senator, 
 and you also declare that you propose to give the investigation appropriate attention. 
 
 "In reply, I have to say that the resolution to which you refer recites the fact that allegations 
 of bribery, published on authority of S. K. Donavin, are of so grave and positive character as to call 
 immediate action in order to vindicate the reputation of members of the present general assembly. 
 It directs the special committee to 'inquire into all tlie facts of the alleged bribery, and report their con- 
 clusions thereon to the house.' 
 
 "If in the prosecution of this inquiry any testimony tending to inculpate you in any degree with 
 any questionable transaction be received, I assure you that your request to appear before the committee 
 in such event will be most cordially and fully acceded to. 
 "Very respectfully, 
 
 Thomas A. Cowgill, Chairman." 
 
 Instead of attempting a selection or summary of the testimony transmitted to the Senate by the 
 Ohio house of representatives, for the illustration or support of our views and conclusions as to the proper 

 
 § 691 PLEADINGS IN CONTESTED ELECTIONS. 893 
 
 disposition of the matter referred to the Committee on Privileges and Elections, we have thought it 
 eminently just to accept as the basis of our observations the two careful and intelligent presentations 
 of the testimony to the Ohio house of representatives by the majority and minority reports of the select 
 committee. 
 
 Your committee were addressed by two honorable Members of the House of Representatives 
 from Ohio, Mr. Little and Mr. Butterworth, in exposition and enforcement of the testimony and of the 
 just rules and principles which should govern your committee in their disposition of the matter before 
 them. Subsequently, and while the committee was deliberating upon the case as submitted to them, 
 these honorable gentlemen placed before your committee certain suggestions in the nature of corrob- 
 orative or cumulative evidence, which we append, with the majority and minority reports to which 
 we have referred, to accompany our report. These supplementary suggestions we have justly given 
 this prominence to, as indicating in nature, if not in substance, what might be shown in testimony if 
 an investigation should be entered upon by the Senate. 
 
 The only constitutional rights, powers, and duties which can sustain, or properly induce, an 
 investigation such as is presented for the consideration of the Senate by the honorable house of repre- 
 sentatives of the State of Ohio, arise from two separate and independent clatises of the Constitution: 
 
 By the first clause of section 5 of Article I of the Constitution each House of Congress is made "the 
 judge of the elections, returns, and qualifications of its own Members." 
 
 By the second clause of the same section each House may, "with the concurrence of two-thirds 
 expel a Member." 
 
 As these two ends alone limit the basis and object of any investigation proposed, either for invali- 
 dating the election of a Senator or expelling from the Senate a duly elected and qualified member of 
 it, a scrutiny of the grounds, in fact, upon which such action is demanded in any case arising from the 
 Senate requires an ascertainment whether the scope of the proposition and the testimony presented 
 or reasonably assured, would justify the ultimate action of the Senate under one or the other of these 
 clauses of the Constitution. We do not understand that the house of representatives of Ohio presents 
 any case upon the testimony taken or imagined to be accessible to any investigation by the Senate or 
 upon any allegation of the existence of facts suspected, though not probable, as would affect Mr. Payne 
 with such personal delinquency or turpitude as would invite or tolerate his expulsion from the Senate 
 for his participation in the transaction which resulted in his election. The examination of the testimony 
 suggests no support for such an imputation, and the course of the select committee in not giving Mr. 
 Payne an opportunity to be heard before them precludes any intimation that such a notion was enter- 
 tained for a moment by that committee or the Ohio house of representatives. 
 
 We do not understand that any member of the Committee on Privileges and Elections has harbored 
 or expressed the idea that the testimony taken, or suggested as accessible or possible, touches the subject 
 of this personal inciUpation of Mr. Payne. We shall therefore confine our further discussion of the 
 matter, as presented for the investigation or action of the Senate, to the question arising upon the 
 validity of Mr. Payne's election and the declaration of his seat in the Senate vacant for such cause. 
 
 It is no doubt supposable that an election may be vitiated by fraud, corruption, and bribery 
 without the Member unseated being accused even of personal participation in the fraud, corruption 
 or bribery by which his election was compassed. If the election is thus vitiated, the Member's seat 
 can not be saved by his personal exculpation and vindication. The integrity of the election, and not 
 of the Member, is in question under this clause of the Constitution. 
 
 But, on the same reason, the investigation, which now deals with the election as vitiated and 
 not the Member as innocent, must reach the proof that the fraud, corruption, or bribery embraces 
 enough in number of the voting electors to have changed, by these methods, the result of the election. 
 If these corrupted votes gave the innocent Member his seat, the deprivation of these corrupted votes 
 vacates his seat, however innocent he is. But, if the uncorrupted votes were adequate to his election 
 and he is purged from complicity in the fraud, corruption, or bribery, his seat is not exposed to any 
 question of validity in the election. 
 
 Upon a reference to the testimony presented by the Ohio house of representatives, and sifted and 
 emphasized by the select committee's majority and minority reports, we are able to ascertain the num- 
 ber of members of the general assembly of Ohio that have been brought into inculpation, the degree 
 and weight of evidence affecting each of them, and the conclusions of these two committees as to what 
 had been proved, or could be expected to be proved, as bearing upon each of these members.
 
 894 
 
 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 §691 
 
 As to four members, viz, Messrs. Baker, Hunt, Schultz, and Ziegler, being the members of the 
 house of representatives of 1886 upon charges against whom the general investigations were set on foot, 
 we find the committee, by the majority report, declare that "the testimony developed nothing of an 
 inculpating character concerning the members of this house named in the resolution of inquiry." The 
 minority report express their conclusions to the same effect, as follows: 
 
 "That there has been absolutely nothing found in any way compromising the four members 
 charged, and they are wholly exonerated from the charges made, and stand to-day without the shadow 
 of a suspicion attaching to them in regard to conduct unbecoming members of this house." 
 
 A.S to two members of the house, viz, Mr. Kahle and Mr. Hull, the majority report names them as 
 "two instances in which attempted bribery in the Senatorial canvass was reported by members of the 
 Sixty-sixth general assembly," and sets forth, as the report expresses it, "the testimony taken as to what 
 those members reported " "in brief." Both Mr. Kahle and Mr. Hull were active and earnest supporters 
 of Mr. Pendleton in the canvass and so continued to the end, voting for Mr. Pendleton in the caucus 
 and in the legislature. The evidence respecting these two members, as given or commented upon by 
 the majority and minority reports, we refer to, conformably to our declared purpose, without attempting 
 any observations of our own upon the testimony. For the immediate consideration now presented 
 it is sufficient to say that no diversion from Mr. Pendleton's support to Mr. Payne's was effected as to 
 these two electors. 
 
 The select committee names in the majority report two senators and two representatives and speaks 
 of them as follows: 
 
 "Rumors as to suspected bribery with which were connected the names of Messrs. Mooney and 
 Roche, members of the house, and Messrs. White and Ramey, members of the senate, of the Sixty-sixth 
 general assembly, all of whom voted in caucus for Henry B. Payne for United States Senator, were 
 traced by the committee until developments which were regarded as important were reached, as 
 follows"— 
 
 giving the testimony bearing upon each, as viewed by the majority of the committee. The minority 
 report takes up the case of each of these members and comments upon the evidence which it adduces 
 from the testimony, and declares as to each of them that the testimony justifies no imputation upon 
 any one of them. We again, without anj' observations of our own on the evidence, refer to the majority 
 and minority reports on this topic. 
 
 It is proper that we should call the attention of the Senate to the very explicit and candid state- 
 ment of the majority report as to the reach and scope which were given to the investigation and of the 
 distinction drawn between the testimony at large and the report itself, as the latter containing "no 
 facts" "which are not sustained by testimony upon which a legislative body might base further action.'' 
 This report says: 
 
 "Whenever our attention was called to anything which indicated the probable employment of 
 improper means to gain support, we followed the clews presented, on the theory that we were not only 
 authorized, but in duty bound, to pursue any matter that promised, even remotely, to show the use of 
 such means in connection with the election, because the discovery of one important fact, although 
 having no immediate bearing upon the charge against the persons named in the resolution, might lead 
 to the discovery of facts having such bearing. And furthermore, and upon the same theory, our inquiries 
 were not confined to the technical rules of legal proof, but the committee availed itself of any source of 
 information — admitted hearsay statements and even the opinions of witnesses. But we consider that 
 in making this report no facts should be stated which are not sustained by testimony upon which a 
 legislative body might base further action." 
 
 The minority report thus speaks of the completeness of the investigation instituted by the com- 
 mittee: 
 
 "Your committee, in its anxiety that nothing, however trivial and remote, that might have, either 
 directly or indirectly, any possible bearing on the matter under consideration, have exercised the 
 greatest liberality possible in the taking of testimony, which has extended the scope of its inquiry far 
 beyond the limits that could be given the most liberal construction of the resolution." 
 
 As the result of this wide investigation it does not appear that the select committee recommended 
 any action by the legislature looking to a further investigation, or to the incrimination or punishment 
 in the courts of law of any persons named in the report, nor that the legislature itself has proposed any
 
 I 691 PLEADINGS IN CONTESTED ELECTIONS. 895 
 
 action in such directions, or either of them. Indeed, the whole recommendation of the committee to 
 the house of representatives is in these words: 
 
 "That an authenticated copy of the testimony and report be transmitted to the President of the 
 United States Senate for the information of the body of which Senator Payne is a member and for such 
 action as it may deem advisable." 
 
 In pursuance of this recommendation the house of representatives communicated to the senate the 
 testimony taken and the reports of the committee, which are before the Committee on Privileges and 
 Elections. The only action taken by either house of the general assembly of Ohio since that has been 
 brought to the attention of the Senate or of its committee is shown in a resolution of the senate of Ohio 
 and one of the house of representatives, as follows: 
 
 " Senatorial election in Ohio. 
 "[Senate resolution — Mr. Hardacre — No. 58.] 
 
 "Whereas by common report, suggested and corroborated by the public press of the State without 
 respect to party, and by a recent investigation of the house of representatives, the title of Henry B. Payne 
 to a seat in the United States Senate is vitiated by corrupt practices and the corrupt use of money in 
 procuring his election; and 
 
 "Whereas it is deemed expedient, in order to secure a thorough investigation of his said election 
 as Senator by the United States Senate, that the belief of the general assembly in this regard be formu- 
 lated in a specific charge: Therefore, be it 
 
 ''Resolved, That in the opinion of the general assembly, and it so charges, the election of Henry B. 
 Payne as Senator of the United States from Ohio, in January, 1884, was procured and brought about by 
 the corrupt use of money, paid to or for the benefit of divers and sundry members of the Sixty-sixth 
 general assembly of Ohio, and by other corrupt means and practices, a more particular statement of 
 which can not now be given. 
 
 "Resolved, That the Senate of the United States be, and the same is hereby, requested to make a 
 full investigation into the facts of such election so far as pertains to corrupt means used in that behalf. 
 
 "Resolved, That the governor be, and is hereby, requested to forward a copy thereof to the President 
 of the Senate of the United States. 
 
 "I hereby certify that the foregoing is a true and correct copy of said resolution, as the same 
 appears upon the senate journal of Friday, May 14, 1886, after being changed from a "joint " to a "senate " 
 resolution, and adopted by the senate. 
 
 "C. N. Vallandigh.\m, Clerk Ohio Senate." 
 
 '• [n. R. No. 89— Mr. Bramback.] 
 
 "Whereas it is the precedent in the United States Senate that charges of bribery must be directly 
 made to warrant a committee of said body in proceeding to investigate the title of any United States 
 Senator to his seat: Therefore, 
 
 "Be it resolved by the house of representatives of Ohio, That in the investigation made under house 
 resolution No. 28, ample testimony was adduced to warrant the belief that the charges heretofore made 
 by the Democratic press of Ohio are true, to wit: That the seat of Henry B. Payne in the United States 
 Senate was purchased by the corrupt use of money; and 
 
 "Further resolved, That the honor of Ohio demands, and this house of representatives requests 
 that the said title of Henry B. Payne to a seat in the United States Senate be rigidly investigated by 
 said Senate; and 
 
 "Further resolved, That the governor of Ohio be requested to forward a copy of this resolution to 
 the President of the United States Senate. 
 
 "In House of Representatives. 
 
 "Adopted May 18, 1886. 
 
 "Attest: 
 
 "David Lanning, Clerk." 
 
 Upon the whole matter as presented, in evidence and argument, to the Committee on Privileges 
 and Elections, we are of opinion that there is no evidence which purports to prove that fraud, corruption, 
 or bribery was employed in the election of Mr. Payne affecting the votes, given either in the caucus or
 
 \ 
 
 896 PRECEDENTS OF THE HOUSE OF EEPBESENTATIVES. § 691 
 
 in the legislature, whereby the election was carried by corrupt votes to the effect of his election. Nor, 
 in our opinion, is there any allegation that proof exists or would be forthcoming to the extent that would 
 vitiate the election of Mr. Payne by reason of the necessary votes, in caucus or in the legislature, for his 
 election having been obtained by fraud, corruption or bribery. 
 
 We are of opinion, therefore, that under the first clause of the fifth section of Article I of the Con- 
 stitution the testimony and other considerations placed before the Senate do not warrant the Senate in 
 instituting by itself an investigation looking to the unseating of Mr. Payne as a member of the Senate. 
 
 We have in our conclusions made no distinction between the use of fraud, corruption, or bribery 
 in a caucus vote or in the legislative vote for a Senator. Although a caucus, or what proceeds in it, has 
 no constitutional or legal relation to the election of a Senator, yet, by the habit of political parties, the 
 stage of determination as to who is to be elected Senator, and the influences, proper or improper, that 
 produce that determination, is that which precedes and is concluded in the caucus. So far as the ques- 
 tion of personal delinquency or turpitude is concerned, no moral distinction should be taken between 
 corrupt proceedings in caucus and those in the legislature. How far any such distinction would need to 
 be insisted upon in any case, on the question of unseating a Senator, where he himself was not affected 
 with any personal misconduct or complicity with the misconduct of others, we have no occasion, in the 
 immediate case or attitude of the subject, to consider or suggest. 
 
 At the outset of our observations we stated the limits which properly should control the action of 
 the Senate under the applicable clauses of the Constitution, and by the same reason the ends which 
 should be proposed in its investigations and to which they should be confined. It is obvious that the 
 province and duty of a State in its investigations of fraud, corruption, and bribery in an election of 
 Senator are much more extensive. A State is not confined at all to the question whether the actual 
 election brought in question involves the Senator personally in misconduct, or whether enough votes for 
 him were effected by fraud, corruption, or bribery that would require his seat to be vacated, although 
 himself free from imputation. 
 
 The State should execute its laws respecting the purity of Senatorial elections by the indictment 
 and conviction of a single person who bribes or is bribed, whether the election is affected or not. The 
 State should investigate as well to the end of better laws and surer execution of the laws. The State, 
 too, is charged with the maintenance of "the honor of Ohio," and its vindication rests with its own 
 legislation, its own judiciary, and its own people; but it can not demand this vindication at the hands 
 of the United States Senate, except as that may flow from investigations by that body within the limits 
 of its constitutional powers and duties. 
 
 That State has conducted and concluded its investigations into the election of Mr. Payne, and has 
 placed the result before the Senate of the United States. It has attempted no further investigations 
 either by the plenary power of its legislature or through the functions of the courts of law. If, upon 
 further examinations made liy the State, through its legislature or its courts, a case should be presented 
 for renewed consideration by the Senate, within the rules and principles we have stated as governing the 
 action of the Senate, the further action of the Senate will be governed by what may then appear. As the 
 whole matter now stands before the committee, we concur in its judgment that an investigation should 
 not be instituted by the Senate, and the committee be discharged from the further consideration of the 
 subject, and for the reasons which we have thus given. 
 
 The views submitted by Mr. Hoar take issue with, the position of the 
 majority: 
 
 The senate and house of representatives of the State of Ohio, and the Republican State committee, 
 representing the political party which for much the larger portion of the last thirty years has contained a 
 majority of the voters of that State, have each addressed a memorial to the Senate charging that the 
 election of the sitting member was procured by bribery and corruption, and praying the Senate to cause 
 an investigation into said charges. Two gentlemen of high character and position, Messrs. Little and 
 Butterworth, both now Members of the other House from the State of Ohio, the former lately attorney- 
 general of that State, appeared before the committee, declared their personal belief in the truth of the 
 charge, asserted that in their opinion the belief is entertained by a large majority of the people of Ohio of 
 both political parties, and asked to be permitted to lay before the committee evidence to support it. 
 Besides Messrs. Little and Butterworth eight of the Ohio delegation in the House add their earnest request
 
 § 691 PLEADINGS IN CONTESTED ELECTIONS. 897 
 
 to the same effect, aifirin that the investigation is demanded by a large majority in number and influence 
 of the press of the State, say that additional testimony is in the possession of Messrs. Little and Butter- 
 worth, and express their belief that "if opportunity is offered, the charges of the Ohio senate will be 
 sustained by testimony to your full satisfaction." 
 
 Before the memorials above referred to were presented there had been presented to the Senate 
 for its information the evidence taken by a committee of the house of representatives of Ohio, who were 
 directed to investigate charges of corruption in said election against four members of the present house 
 of representatives of Ohio, being the only members of the legislature who made the election against whom 
 allegations of briberj' were made who have been continued in the public service, and the conclusions 
 of the committee upon said evidence. Messrs. Little and Butterworth also produced certain affidavits 
 and letters stating confessions of persons implicated, and pointing out other sources where evidence 
 would probably be obtained if lawful authority should be given by the Senate to procure it. 
 
 Wc think this presents a case where it is the duty of the Senate to permit the petitioners to present 
 their evidence and to authorize the issue of proper process to aid them in procuring the attendance of 
 witnesses. 
 
 The Constitution declares that "each House shall be the judge of the elections, returns, and quali- 
 fications of its own Members." The Senate is the only court which has, or under the Constitution 
 possibly can have, jurisdiction of this question. There can be no trial, inquirj', or adjudication any- 
 where else to which this inquiry is not totally foreign and immaterial. The courts in Ohio may exercise 
 jurisdiction of the offense of bribery of or by an individual. But the question whether the result of an 
 election of Senator was thereby changed can never be before those courts. Either house of the legis- 
 lature may inquire as to the personal turpitude of its own members. But the action which may result 
 from such investigation must be precisely the same, whether other persons also were or were not cor- 
 rupted and whether the choice of Senator were or were not affected. 
 
 As the Senate is the only court that can properly try this question, so the charge is made, if not in 
 the only way it can be made, yet certainly in the way beyond all others in which it can be made with 
 most authority. The legislature of Ohio is the representative of *he dignity, interest, and honor of the 
 State. It appoints the Senators of the United States, and if a vacancy in the office exist it must fill it. 
 It is supported in this charge by the committee who are, under our political customs, the organ of more 
 than half the voters of the State concerned. 
 
 For the Senate to refuse to listen to this complaint, so made, would, it seems to us, be, and be 
 everywhere taken to be, a declaration that it is indifferent to the question whether its seats arc to be 
 in the future the subject of bargain and sale, or may be presented by a few millionaires as a compliment 
 to a friend. No more fatal blow can be struck at the Senate or at the purity and permanence of repub- 
 lican government itself than the establishment of this precedent. 
 
 But the case does not rest alone upon the charge and character of the parties who make it and 
 who ask to be permitted to produce evidence in its support. If it did, it, in our judgment, would be 
 enough. It is surely a strange answer to be given by a court to a suitor to say that it has already 
 considered the question and decided the case before it is presented. 
 
 But the petitioners adduce strong reasons to show probable cause that they can establish their 
 case. The testimony taken by the committee in Ohio has been referred to us. Our attention has also 
 been called to evidence pointing to a large mass of additional testimony. The committee of the Ohio 
 house has power only to inquire into the conduct of four members of that body. They report that — 
 
 "A number of clews furnished were not followed, because we were convinced that they could lead 
 only to points at which further pursuit would become necessary, but which could not be passed without 
 authority to reach beyond the limits of the State for witnesses, and much anonymous information was 
 ignored by the committee chiefly for the same reason." 
 
 We have examined the evidence taken by that committee. It does not support the charges as to 
 the four members implicated; it does not connect Mr. Payne with the transactions; it does not show 
 that the result was changed or effected by comipt means. But it does show that Mr. Payne's name was 
 not publicly suggested as a candidate for Senator until after the State election; that it was not very 
 prominently suggested until shortly before his election in January; that many persons who had been 
 supposed to favor Pendleton voted for Payne ; that there was a widespread belief that corrupt means were 
 5994— VOL 1—07 57
 
 898 PBECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 691 
 
 used to procure the result; that one member was offered a large sum of money by another member to vote 
 for Payne; that there were hearsay statements charging corruption as to several others; that two members 
 of the legislature received large sums of money about the time of the election, of which they, being called 
 as witnesses, gave no satisfactory account; that the prominent managers of Mr. Payne's canvass, viz, 
 Paige, McLean, Huntington, and Oliver H. Payne, did not testify before the committee. There was no 
 evidence tending to show the bribery of any particular member, except as above stated. 
 
 When we say it was not shown that the result was changed or effected by corrupt means, we are 
 speakin" of direct testimony. But the consideration should not be forgotten that where persons familiar 
 with the whole case would be quite sure to know whether such means were needful to change the result, 
 or whether their candidates would be elected without it, if they are found expending large sums of money 
 corruptly the fact alone affords strong reason for the inference that the result was thereby controlled. 
 But the result of the investigation in Ohio seems to the undersigned absolutely unimportant. That 
 committee, while they took a wider range of inquiry than the matter committed to them, neither had, 
 nor conceived they had, any power to inquire into Mr. Payne's title to his seat. They issued no process 
 extending beyond the limits of Ohio. They report no conclusion, except as to the four members. 
 When witnesses refused to answer, they did not press them. They went beyond the scope of the reso- 
 lution appointing them only, as they say, "to gain something like a comprehensive view of the situation." 
 
 The Ohio senate of 1883-84 contained 33 members. Of these, 22 were Democrats and 11 Repub- 
 licans. The house contained 105 members, of which 60 were Democrats and 45 Republicans. The 
 members entitled to vote on joint ballot were 138 in all, 82 Democrats and 56 Republicans. Eighty-two 
 persons were entitled to vote in the Democratic caucus, of whom 42 were a majority. Seventy-nine 
 persons actually attended that caucus, of whom 40 were a majority. Is there fair reason for instituting 
 an inquiry whether the result of the election was procured by bribery? We think that the character 
 of the persons making the charge is of itself sufficient to require the Senate to listen to it. But they 
 produce a great body of evidence, all pointing in the same direction. 
 
 We are not now to consider whether the case is proved, or even whether there be a prima facie case. 
 There has as yet been no evidence l?id before us addressed to either of these considerations. That can 
 not be done without the issue of process for the attendance of witnesses. Messrs. Little and Butter- 
 worth now offer, on their personal responsibility, to establish to the satisfaction of the Senate, largely 
 by witnesses who were not within the reach of the Ohio committee, and partly by evidence which 
 strengthens, supplements, and confirms that which was before that committee, the following among 
 other propositions: 
 
 First. That of the Democratic members elected to the sixty-sixth general assembly more than 
 three-fourths were positively pledged to Mr. Pendleton and General Ward, and more than a majority 
 pledged to Mr. Pendleton. This they off?r to prove by Mr. Pendleton himself, by Col. W. A. Taylor, 
 and others. 
 
 Second. That in these pledges these members represented the opinion and desire of their constituents. 
 
 Third. That Mr. Payne was nowhere spoken of or known as a candidate during the popular election, 
 or until a very short time before the appointment of Senator. 
 
 Fourth. That just before the legislative caucus, where the nomination was made, which was one 
 week before the election, large sums of money were placed by Mr. Payne's son and other near friends 
 of his at the control of the active managers of his canvass in Columbus. This they allege can be shown 
 by the books of one or more banks. 
 
 Fifth. Mr. Payne's near friends declared that his election had cost very large sums. 
 
 A gentleman whose name is offered to be given will testify that David R. Paige declared to him 
 that he had handled $65,000. 
 
 Oliver B. Payne stated to the same person that it had cost him $100,000 to elect his father. 
 
 Sixth. That the members of the legislature who changed from Pendleton to Payne did so after 
 secret and confidential interviews with the agents who had the disbursement of these moneys. 
 
 Seventh. That members of the legislature who so suddenly changed their attitude can be proved 
 to have, at about the time of the change, acquired large sums of money, of which they give no satisfactory 
 account. 
 
 Eighth. Respectable Ohio Democrats affirm that just before the caucus the room of Mr. Payne's 
 manager, Paige, "was like a banking house;" that the "evidence of large sums of money there was
 
 §691 
 
 PLEADINGS IN CONTESTED ELECTIONS. 899 
 
 abundant and conclusive;" that Paige's clerk declared in the presence of a gentleman of integrity that 
 "he had never seen so much money handled in his lite." 
 
 Ninth. That the public belief that the choice of Senator was procured by the corrupt use of money 
 prevails almost universally in Ohio among persons of both parties, which finds very general expression 
 in the press. 
 
 Tenth. That there is specific proof leading with great force to the conclusion that each of 10 mem- 
 bers will be shown to have changed their votes corruptly, and thereby that the result was changed. 
 
 The Senate has also recently referred to the committee certain,resolutions adopted by a convention 
 of the Republican editors of Ohio, held at Columbus, July 8, 18S6, praj-ing the Senate to investigate these 
 charges. The newspaper reports of the convention show that the governor of the State was present at the 
 convention, and declared his concurrence in said prayer. There have also been communicated to us 
 extracts from the Democratic newspapers of Ohio, showing that a majority of those papers have declared 
 their opinion that the election was procured by corruption. Copies of these extracts are appended. 
 
 What is the effect upon an election of Senator of briberj- of voters in a caucus of the legislators who 
 are to make the choice is a question upon which we prefer not to form an opinion until the evidence is 
 before us. The members of a caucus ordinarily deem themselves bound in honor to vote in the election 
 for the person whom it nominates by the vote of a majority, on condition that such person belong to 
 their party and is fit for the office in point of character and ability. Briberj', therefore, which changes 
 the result in the caucus would ordinarily determine the election. 
 
 If B, C, and D have promised to vote as A shall vote, if A be corrupted four votes are gained by the 
 process, although B, C, and D be innocent. In looking, therefore, to see whether an election by the 
 legislature was procured or effected by bribery, it may be very important to discover whether that 
 bribery procured the nomination of a caucus whose action a majority of the legislature were bound in 
 honor to support. Seventy-nine persons attended the Senatorial caucus and voted on the first ballot. 
 Of these Mi. PajTie had the votes of 46, Ward 17, Pendleton 15, Booth 1. If 6 only of Mr. PajTie's votes 
 in the caucus were procured by bribery, the result of the election of Senator was clearly brought about 
 by that means. Now, Messrs. Little and Butterworth tender specific proof, part of which was before the 
 Ohio committee and part here offered for the first time, directly and very strongly tending to create 
 the belief as to each of 10 of the members of the Ohio legislature that his vote for Mr. Payne was purchased 
 and that proper process and inquiry will establish the fact by competent and sufficient evidence. 
 
 One member after the caucus deposited $2,500 in two amounts, and being charged that it was the 
 price of his vote, did not persist in a denial. 
 
 Another, who changed to PajTie, just before the caucus stated to a colleague that he waa offered 
 $5,000 to vote for PajTie, and intended to accept it, and tried to induce his colleague to do the same. 
 That person's wife iust afterwards deposited $2,500 in a bank in Toledo, took a certificate therefor, which 
 she transferred to her husband. 
 
 Another who is claimed to have changed suddenly from Pendleton to Payne is found making, soon 
 after, expenditures amounting to $1,600 with his own money on land, the title to which was taken in the 
 name of his father, who paid $2,000 for it about the same time. The father and son lived together in the 
 same house. The son testified that ho did not know where the father got the money to pay the $2,000. 
 The father refused to state where he got his $2,000, and said he did not know where the son got the 
 $1,600, and if he did he would not tell. The same member also made other large pajTnents of money 
 about the same time. 
 
 Another, who had to borrow money when he went to Columbus, and changed suddenly from Pendle- 
 ton to Payne, was shown just after the election to be in possession of money to purchase property, 
 refurnish his house, etc. He was denounced by another member as having sold his vote. He turned 
 exceedingly sick, made no denial, and was taken away. Two others, elected as antimonopolists, 
 became supporters of Mr. Payne and were heard discussing together the amount of money each had 
 received. Another, who had before been for another candidate, but voted for Mr. Payne, received from 
 Oliver B. Payne $3,500, which he said was a loan. Another, according to affidavits produced by Mr. 
 Little, was declared by a fellow member to be claiming $3,500 for his vote. Another, who had been 
 very earnest in support of Pendleton, visited the room of Mr. Payne's managers, where the large sums 
 of money are alleged to have been seen, and immediately afterwards voted for Mr. Payne.
 
 900 PRECEDENTS OF THE HOUSE OF EEPKESENTATIVES. § 691 
 
 Tte committee received this communication from Messrs. Little and Butterworth in addition to 
 the statements made by them at the hearing: 
 
 "Hon. George F. Hoar, 
 
 "Chairman of the Comndttee on Privileges and Elections, United States Senate: 
 
 "Dear Sir: Since our appearance before your committee the last tune we have received infor- 
 mation, deemed by us important, bearing upon the question of investigation, and desire to indicate its 
 general character. 
 
 "First. We have information, regarded as trustworthy, that a member of the sixty-sixth general 
 assembly, one of the sudden converts to Payne, with meager means and without financial credit prior 
 to January, 1884, was able to and did deposit in bank to his own credit shortly after the election, to wit, 
 February 13, 1884, $1,350, besides showing other signs of prosperity not accountable for in ordinary ways. 
 
 "Second. We can show by witnesses, whose credibility will not be questioned, that just prior to 
 the meeting of the caucus at which Mr. Payne was nominated he (witness) was, in the interest of Payne, 
 summoned by telegraph to Columbus. He went, and was asked by Payne's managers what sum of 
 money would be required to withdraw the vote of the representative of his (witness's) county from 
 Pendleton and give it to Payne. The question was squarely and seriously addressed to witness: 'How 
 much money does he (the representative) want?' 
 
 "Third. We have from reliable sources additional information of a convincing nature pointing to 
 bribery, consisting of conversation, statements, and admissions of implicated members and others, 
 which we are not at liberty to state more explicitly in this communication, owing to the conditions 
 under which the information is imparted, but which, with the other matters referred to, we can verbally 
 communicate to you in more particular form if desired. 
 
 "In the line of matter heretofore submitted we deem it worth while to give this additional instance: 
 
 "Fourth. We quote from a letter in our possession from a responsible person in Ohio, omitting 
 names: 
 
 "'Our representative, , had been elected as a Pendleton man and had agreed to 
 
 support Pendleton. A few days before the caucus it waa whispered that " had been seen" and 
 
 that he would vote for Payne. A telegram was at once sent from here to (the member) by lead- 
 ing Democrats, warning him against such a coiu'se, and and others at once went to Columbus 
 
 and saw the member. He hooted at the idea that he would vote for Payne. assured Pendleton 
 
 that the member would support him. then came home feeling confident that the member would 
 
 not disappoint him.' 
 
 "This member was interviewed in the presence of a friend of Mr. Pendleton and asserted his 
 devotion to him, but was suspected and watched. As the hour of the caucus approached it was noticed 
 that he was not present. The friend of Mr. Pendleton went to his room for him. We quote further: 
 
 "'He found him in company with one of the men who handled the "boodle," and he was much 
 
 embarrassed by 's presence. But he went to the caucus with , and on the way again 
 
 asserted his allegiance to Pendleton. If I remember correctly, said they had printed ballots 
 
 for both candidates and that he gave (the member) a Pendleton ticket. But when the vote 
 
 was taken, (Pendleton's friend) observed that (the member) wrote something on a piece 
 
 of legal cap and then tore it off. He afterwards discovered that (the member) put in the hat 
 
 the same piece of paper, and then (Pendleton's friend) went to 's (the member's) desk 
 
 and tore off a piece of the legal cap large enough to include the small piece torn off by (the 
 
 member). I think (Pendleton's friend) was one of the tellers. At any rate, he got the ballot 
 
 which fitted the piece of legal cap, and which had voted, and found that Payne's name was on 
 
 the ballot.' 
 
 "This member was thereupon charged by the Democratic county paper of his county with 
 betrayal, etc. 
 
 "We do not question that the facts can be shown substantially as indicated with respect to the 
 member referred to. 
 
 "Should this information not be used, names and means of identity placed on record would or 
 might lead to annoyances for no purpose. They are, therefore, not here given. 
 
 " Yoiu- committee, we will venture to add in conclusion, will not overlook the fact that our showing.
 
 § 691 PLEADINGS IN CONTESTED ELECTIONS. 901 
 
 made in the face of a most persistent and powerful opposition, of unlimited means and expedients, has 
 been one for an investigation, and not final action following an investigation. 
 "Very respectfully, 
 
 "John Little. 
 
 "Benj. Butterworth." 
 
 It is said that much of this is hearsay and that taken together it is insufficient to establish a case 
 which wiU overcome the presumption arising from the certificate of election. We are not now dealing 
 with that question. The Senate is to determine whether there is probable cause for an inquirJ^ Any 
 man who lays a claim to any property, real or personal, may institute his process at pleasure, and compel 
 the courts to hear and try the cause. Even a criminal accusation requires only the oath of the accuser, 
 who is justified, if he have probable cause. 
 
 It will not be questioned that in everj' one t^f these cases there is abundant probable cause which 
 would justify a complaint and compel a grand jury or magistrate to issue process and make an investi- 
 gation. Is the Senate to deny to the people of a great State, speaking tlirough their legislature and 
 their representative citizens, the only opportunity for a hearing of this momentous case which can exist 
 under the Constitution? We have not prejudged the case, nor do we mean to prejudge it. We sincerely 
 trust that the investigation, which is as much demanded for the honor of the sitting Member as for that 
 of the Senate or the State of Ohio, may result in vindicating his title to his seat and the good name 
 'if the legislature that elected him. 
 
 But we can not consent to be accomplices in denying justice to either. We do not believe the 
 -American people will be satisfied that the Senate should refuse to hear this case either on the ground 
 that some other tribimal has tried some other case, or on the ground that it has already been decided 
 without hearing or evidence, or on the ground that a bribe paid for a vote in a legislative caucus is not 
 understood by both parties to include a vote in the legislature for the candidate of that caucus. 
 
 How can a question of bribery ever be raised or ever be investigated if the arguments against this 
 investigation prevail? You do not suppose that the men who bribe or the men who are bribed will 
 volunteer to furnish e^adence against themselves? You do not expect that impartial and unimpeacli- 
 able witnesses will be present at the transaction. Ordinarily, of course, if a claim like this be brought 
 to the attention of the Senate from a respectable quarter that a title to a seat here was obtained by 
 corrupt means the Senator concerned will hasten to demand an investigation. But that is wholly 
 within his own discretion, and does not affect the due mode of procedure by the Senate. From the 
 nature of the case the process of the Senate must compel the persons who conducted the canvass and 
 the persons who made the election to appear and disclose what they know; and until that process issue 
 you must act upon such information only as is enough to cause inquiry in the ordinary affairs of life. 
 
 The question now is not whether the case is proved — it is only whether it shall be inquired into. 
 That has never yet been done. It can not be done until the Senate issues its process. No unwOling 
 witness has ever yet been compelled to testify; no process has gone out which could cross State lines. 
 The Senate is now to determine, as the law of the present case and as the precedent for all future cases, 
 as to the great crime of bribery — a crime which poisons the waters of republican liberty in the fountain — 
 that the circumstances which here appear are not enough to demand its attention. 
 
 It will hardly be doubted that cases of purchase of seats in the Senate will multiply rapidly under 
 the decision proposed by the majority of the committee. The first great precedent to constitute the 
 rule under this branch of law is to be this: 
 
 Held, by the Senate of the United States, that a charge made by the legislature of a State, and 
 by the committee of the political party to which the larger number of its citizens belong, and by 10 of 
 its Representatives in Congress, that an election of Senator was procured by bribery, accompanied by 
 the offer to prove the fact, does not deserve the attention of the Senate, and this, although it also appear — 
 
 That there is a general and widespread public belief in the truth of the charge; that there was 
 a sudden and unexpected and unaccounted for change to the sitting member from another candidate, 
 to whom a majority of the electing body had been previously pledged; that lai^e Bums of money were 
 brought to the place of election just before the choice by the managers of the canvass for the person 
 elected; that there is evidence tending to show the bribery of several members, and the acquisition by 
 others, who so changed their support, of considerable sums of money, immediately after such change, 
 affect at least 10 members of said legislature; that a change by corrupt means of the votes of 6 persons
 
 902 PKECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 692 
 
 would have changed the result in a legislative caucus, and thereby bound and committed the vote in 
 the legislature of 82 persons, who were a large majority of such legislature; 
 
 Provided it also appear that one branch of a subsequent legislature of the same State have, in 
 investigating charges against four of their members, incidentally inquired into charges against other 
 persons, so far as they could without compelling unwilling witnesses to answer, without use of process 
 extending beyond their State, and "without following out many clues, which they did not follow 
 because they were convinced that they would lead only to points of which further pursuit would become 
 necessary." 
 
 We recommend the adoption of the accompanying resolution: 
 
 Resolved, That the Committee on Privileges and Elections, or any subcommittee thereof, be author- 
 ized to investigate the charges affecting the title to the seat of the Hon. Henrj' B. Payne, and to send 
 for persons and papers, administer oaths, and employ a clerk and stenographer, and to sit during the 
 recess of the Senate; and that the expenses of the investigation be paid out of the contingent fund of 
 the Senate. 
 
 On the issues thus joined, the case was debated at length in the Senate on 
 July 21, 22, and 23,* and on the latter day the resolution proposed in the views 
 submitted by Mr. Hoar was disagreed to, yeas 17, nays 44. Then the proposition 
 of the majority was agreed to, yeas 44, nays 17.' 
 
 692. The Senate election case of Williaiii A. Clark, from Montana, in 
 the Fifty-sixth Congress. 
 
 A Senator-elect took the oath on his prima facie right without chal- 
 lenge, although charges of bribery in his election were presented imme- 
 diately thereafter. 
 
 A memorial having set forth specifically charges of bribery, and 
 specified evidence in support thereof, the Senate decided to examine a 
 Senator's title to his seat. 
 
 Instance of a Senate election case instituted by a memorial. 
 
 On December 4, 1899,^ in the Senate William A. Clark, whose credentials were 
 on file as Senator from Montana, took the oath of office without objection. 
 
 Very soon thereafter, on that day, Mr. Thomas H. Carter, of Montana, pre- 
 sented the memorial of Henry C. Stiff, speaker of the house of representatives of 
 Montana, and 26 members of the legislative assembly of that State, protesting 
 against the validity of Mr. Clark's election. Mr. Carter also presented a petition 
 signed by the governor of Montana and other State officers, by the Member of 
 Congress from that State, and an ex-Member, praying for an early hearing on the 
 
 ' Record, pp. 7251, 7308, 7350-7361. 
 
 ^ In 1898 the Senate considered the case of Marcus A. Hanna, Senator from Ohio. (Election 
 Cases, Senate Doc. No. 11, special session Fifty-eighth Congress, p. 878.) Mr. Hanna was chosen by 
 the legislature of the State of Ohio a Senator from that State for the remaining portion of the term ending 
 March 3, 1899. Mr. Hanna appeared January 17, 1898, and took his seat in the Senate without objection. 
 Subsequently, and on the 28th day of May, 1898, a certified copy of the report of the committee appointed 
 by the senate of the State of Ohio to investigate charges of bribery in the election of Mr. Hanna to the 
 Senate of the United States was filed and referred to the Committee on Privileges and Elections. On 
 the 28th day of February, 1899, the committee submitted a report asking to be discharged from further 
 consideration of the report of the State senate of Ohio. A minority of the committee submitted a 
 minority report recommending further inquiry' and investigation. One member of the committee did 
 not join in either the majority or the minority report, but submitted a separate report for himself. No 
 further action was taken by the Senate in the case. 
 
 'First session Fifty-sixth Congress, Record, pp. 1, 2.
 
 § 692 PLEADINGS IN CONTESTED ELECTIONS. 903 
 
 protest. The memorial and petition were referred to the Committee on Privileges 
 and Elections. 
 
 On December 6 ' Mr. William E. Chandler, of New Hampshire, presented 
 certain exhibits to accompany the memorial alreadj- presented. 
 
 On December 7 ^ Mr. Chandler reported from the Committee on Privileges and 
 Elections the following resolution, which was agreed to on December 12 without 
 debate : 
 
 Resolved, That the Committee on Privileges and Elections of the Senate, or any subcommittee 
 thereof, be authorized and directed to investigate the right and title of William A. Clark to a seat as 
 Senator from the State of Montana, and said committee is authorized to sit during the sessions of the 
 Senate, to employ a stenographer, to send for persons and papers, and to administer oaths, and that the 
 expense of the inquirj- shall be paid from the contingent fund of the Senate upon vouchers to be approved 
 by the chairman of the committee. 
 
 This decision of the Senate, made without question or debate, was evidently 
 based on the full showing made in the memorial presented by Mr. Carter. This 
 memorial,^ addressed "To the honorable Senate of the United States," set forth: 
 
 1. That the petitioners were citizens of the United States and of the State of 
 Montana, and that they were such long prior to the meeting of the sixth leoislative 
 assembly, which convened on the first Monday of January, 1899. 
 
 2. That the legislature as organized consisted of certain persons, whose names, 
 politics, and districts are set down. 
 
 3. That it was the duty of the said legislature to elect a United States Senator, 
 and that William A. Clark was a member. 
 
 4. That the said William A. Clark entered into a conspiracy with certain others 
 to influence the action of the legislature in the choice of a Senator, and that in 
 pursuance of that conspiracy money was paid to divers persons to influence cor- 
 ruptly the choice of Senator. The memorial sets forth the names of the persons 
 thus corruptly in receipt of money and the sum received by each, and also other 
 persons mentioned by name to whom stated sums were offered to cause them as 
 members of the said legislatiu-e to vote for the said W. A. Clark for Senator. 
 
 5. That the aforesaid corrupt offers were made with the full knowledge and 
 authorization of the said W. A. Clark. 
 
 6. That by the aid of these corrupt expenditirres of money W. A. Clark received 
 a majority of the votes of £he legislative assembly for Senator, and that without 
 such corrupt expenditure he would not have received such majority. 
 
 7. That various investigations had been made in Montana by the legislature 
 and by the grand-jmy system, and a large amount of testimony taken, whereof 
 transcripts were sent as a part of the memorial. 
 
 The memorial concludes as follows: 
 
 Wherefore, your petitioners pray your honorable body at the earliest practicable moment to set a 
 time and place for hearing this protest and the evidence in support thereof before the Committee on 
 Privileges and Elections of your honorable body, to the end that substantial justice may be done to the 
 people of the State of Montana and all others concerned in the matters set forth herein, and that pending 
 
 ' Record, p. 85. 
 
 ^Record, pp. 132, 231. 
 
 ' First session Fifty-sixth Congress, Senate Report No. 1052, Part I, Document No. 3.
 
 904 PEECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 693 
 
 Buch investigation the said William A. Clark be denied the privileges of participation in the duties and 
 business of the Senate as a Member thereof. 
 
 On information and belief I sign the foregoing statement and charges. 
 
 The signatures of the petitioners follow. 
 
 The Senate having aclmitted Mr. Clark on his prima facie showing, no steps 
 were taken to grant the request of the petitioners that he be denied participation 
 in the proceedings of the Senate. 
 
 693. The case of William A. Clark, continued. 
 
 The committee recommended that a Senator's election be declared 
 void, enough bribery being shown to have affected the result. 
 
 A Senator threatened with loss of his seat for bribery having 
 resigned, the proceedings abated. 
 
 Criticism and discussion as to latitude of inquiry permitted in a com- 
 mittee's investigation of the right of a Senator to his seat. 
 
 On April 23 ' Mr. Chandler reported from the Committee on Privileges and 
 
 Elections this resolution: 
 
 Resolved, That William A. Clark was not duly and legally elected to a seat in the Senate of the 
 United States by the legislature of the State of Montana. 
 
 This resolution was the result of the imanimous action of the committee. 
 With the resolution was a written report' going over the evidence at length, dis- 
 cussing the individual cases of bribery, and summarizing the law and the facts, as 
 follows : 
 
 In justifying the finding of the committee it is not necessary to discuss any doubtful questions 
 of law. 
 
 (1) It is clear that if by briberj- or corrupt practices on the part of the friends of a candidate who 
 are conducting his canvass votes are obtained for him without which he would not have had a majority, 
 his election should be annulled, although proof is lacking that he knew of the bribeiy or corrupt prac- 
 tices. (Pomeroy's case, Taft Election Cases, 330; Caldwell's case, 334; Clayton's case, 348; Ingall'e 
 case, 596; Payne's case, 604, 609, 610; Minority report, 616.) 
 
 (2) It seems to have been admitted that if the person elected clearly participated in any one act 
 of bribery or attempted bribery he should be deprived of his office, although the result of the election 
 was not thereby changed. (Pomeroy's case, Taft Election Cases, 330, where Mr. Pomeroy had 84 votes 
 against 25.) 
 
 According to the law, as understood by the committee. Senator Clark can not be permitted to 
 retain his seat. He received 54 votes and there were 39 against him, leaving him an apparent majority 
 of 15. If he obtained through illegal and corrupt practices 8 votes which would otherwise have been 
 cast against him, he was not legally elected. More than this number of votes, the committee find 
 from all the evidence, was thus obtained. 
 
 It is also a reasonable conclusion upon the whole case that Senator Clark is fairly to be charged 
 with knowledge of the acts done in his behalf by his committee and his agents conducting his canvass. 
 He arrived in Helena from Butte on January 4 and remained there until after his election on January 28, 
 and was in constant conference with his committee and agents. 
 
 Two members of the committee, Messrs. E. W. Pettus, of Alabama, and W. A. 
 Harris, of Kansas, while agreeing to the resolution, offered minority views which, 
 besides discussing the evidence, criticised the methoil of taking it. 
 
 It was our misfortune not to agree with a majority of the committee in the general conduct of 
 the investigation of this case. We believed that in this important inquiry the committee was bound 
 by, and ought to act on, the ordinary rules of evidence. 
 
 ' Senate Report No. 1052, Record, pp. 3429.
 
 § 693 PLEADINGS IN CONTESTED ELECTIONS. 905 
 
 And in this contention we merely followed another member of the committee who is one of our 
 great lawyers and who is fresh from a long service as a nisi prius judge under Federal authority. That 
 great law^'er, in gentle but forceful language, admonished us of the great danger of disregarding the 
 common rules of evidence established by great judges through the centuries and known to all lawyers. 
 But it was said the committee was not a court and had a right to receive "hearsay" evidence in order 
 to get on the track of better evidence. And we did receive it constantly, and in great volumes. 
 
 We tried merely to discharge our duties as members of this committee and as judges in this most 
 important cause. The chairman, however, left the committee little to do. The committee made an 
 order at the beginning appointing the chairman and another member to determine what witnesses 
 should be summoned, and the two did determine that matter at first, but the chairman kindly relieved 
 the other members of that labor and determined that matter for the committee. 
 
 This report of the chairman declares that, as to many matters stated separately, some members 
 of the committee think or believe one way and some think or believe another way. So we preferred 
 to state our individual findings for ourselves. 
 
 It is our opinion from the evidence that the friends of Senator Clark illegally and improperly 
 used large amounts of money and thereby caused the election, and that this election is not valid, but 
 under the law of the land is void, and therefore we agreed to the resolution reported by the chairman. 
 ******* 
 
 A large part of the evidence taken by the committee and submitted to the Senate is irrelevant 
 to the miatter of inquiry. Take as a sample the matter of what is called the attempt to bribe the supreme 
 court and the attorney-general. This transaction, so far as we are informed, occurred six or seven 
 months after the senatorial election ; no fact proved connects Mr. Clark with any part of that transac- 
 tion. Doctor Treacy had no sort of connection, directly or indirctely, with Mr. Clark; and if he had 
 there was no connection between the election in January and the supreme judges in the fall of that year. 
 
 You can not lawfully charge a man with one crime and prove that he committed that crime by 
 proving that he did commit another crime. The Constitution provides that the accused must "be 
 informed of the nature and caiLse of the accusation." No mention of the judges of the supreme court of 
 Montana was made in the charges against Mr. Clark. All of that evidence was nothing more than what 
 lawyers call " coloring matter." And it was admitted against the protest of the Senator from Maryland 
 and others. 
 
 And in the conduct of this case much other mere ''coloring matter" was received as evidence. 
 
 In the report made for the committee there are several curious statements of a part of the evidence 
 as to the thing stated. For example, it is stated that Senator Clark, in June, 1899. destroyed the checks 
 which he had drawn on his bank. But the report fails to state that for years past it was his habit to 
 destroy his checks when his account was rendered by the bank and examined. And the report failed 
 to state that the committee had the bank account of Mr. Clark during all the time in which it was charged 
 that money had been illegally used. 
 
 And there is another feature of that report which should be noticed. Statements are made as facts 
 which are based only on the testimony of a witness of doubtful credit, and that testimony plainly con- 
 tradicted. 
 
 The only proposition for which we contend is, that this is a judicial case, and a committee of the 
 Senate ought to consider and report it as judges. 
 
 On May 3' the consideration of the resolution was postponed until May 15. 
 On the latter day,- Mr. Clark, rising to a question of personal pri\nlege, and after 
 reviewing the evidence and criticising the methods hj which the evidence had been 
 taken, submitted a copy of a letter addressed by him on May 1 1 to the governor of 
 Montana, in which he resigned his seat in the Senate. 
 
 Mr. Chandler thereupon asked that the resolution might go over to the next day. 
 On that da}'" it was further postponed to enable the Committee on Privileges and 
 Elections to determine what further action should be taken. On June 5/ near the 
 
 ' Record, pp. 5021, 5022. ' Record, p. 5584. 
 
 = Record, pp. 5531-5536. * Record, p. 6698.
 
 906 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 694 
 
 close of the session, ]\lr. Chandler submitted a supplemental report in which the 
 majority of the conmiittee justified their method of conducting the investigation, 
 and replied to the criticisms made by Mr. Clark : 
 
 The distinct criticisms made by Mr. Clark on May 15 of the report of the committee are not serious 
 in their character, and it is fortunate that they were made, because they may be taken as being all the 
 criticisms which the party most at interest can claim can justly be made. The correctness of all other 
 statements made by the committee not criticised by Senator Clark may be taken to be admitted by him. 
 All his statements will not be now reviewed, but some of them should be noticed by the committee. 
 
 He complains that the method of procedure of the committee was unfair and nonjudicial, and 
 that testimony was received contrary to the established rules of evidence, hearsay and irrelevant testi- 
 mony; and that the case was like the Dreyfus case, where there was a constant presumption of guilt 
 instead of innocence. 
 
 The answers to this complaint are simple. 
 
 (1) That no such testimony was received except after deliberate decision by the committee for 
 the purpose of ascertaining what additional witnesses it might be necessary to summon, as stated by 
 the chairman on page 432 of the testimony, as follows: 
 
 "The Chairman. It would only be admissible as laying the foundation for sending for other 
 witnesses." 
 
 (2) That no single finding of the committee has been based upon hearsay testimony. 
 
 The finding of the whole committee that the election was null and void was based upon the admitted 
 or undisputed facts with their attendant circumstances, and no facts are recited in the report of the 
 committee beyond the admitted and undisputed facts except in those cases where any denial of those 
 facts is distinctly recited. 
 
 The methods of procedure were in no case unfair, but were such as ordinarily prevail in investiga- 
 tions like this. 
 
 The presumption of innocence was at no time disregarded, and findings imfavorable to Mr. Clark 
 were made as a court or jury would have made them upon a full and fair consideration of all the facts 
 in the case. 
 
 He denies the conclusion of the committee that a sufficient number of legislators were corrupted 
 to change the result of ths election. 
 
 This criticism is merely the complaint that the committee differed in opinion from him and his 
 eminent counsel and made findings contrary to their desires. 
 
 The report then discusses the evidence more at length. 
 
 694. The case of William A. Clark, continued. 
 
 A Senator having resigned apparently to escape being- unseated for 
 bribery, was not readmitted on credentials showing appointment by an 
 acting governor. 
 
 On May 22,* Mr. Carter presented to the Senate the following credentials: 
 
 State of Montana, Executive Chamber, 
 
 Helena, Mont., May 15, 1900. 
 
 Whereas a vacancy has occurred in the representation of the State of Montana in the Senate of 
 the United States, caused by the resignation of Senator William A. Clark; and 
 
 Whereas the legislature of said State is not in session, but in recess: 
 
 Therefore be it known that, pursuant to the power vested in me by the Constitution of the United 
 States, I, A. E. Spriggs, the lieutenant-governor and acting governor of the said State, do hereby appoint 
 William Andrews Clark, a citizen and inhabitant of said State, to be a member of the Senate of the 
 United States, to fill the vacancy so caused and existing as aforesaid, to have and to hold the said office 
 and membership until the next meeting of the legislature of this State. 
 
 ' Record, p. 5850.
 
 § 694 PLEADINGS IN CONTESTED ELECTIONS. 907 
 
 In witness whereof I have hereunto set my hand and affixed the great seal of said State, at the 
 city of Helena, in said State, this 15th day of May, A. D. 1900. 
 
 [seal.] a. E. Spriggs, Acting Governor. 
 
 By his excellency the acting governor: 
 
 T. S. HoGAN, Secretary of State. 
 
 The credentials were, at Mr. Carter's suggestion, laid on the table, no propo- 
 sition being made to administer the oath to Mr. Clark. 
 
 On May 25 • Mr. Carter presented similar credentials, in due form, but signed 
 by Robert B. Smith, the governor of Montana, certifying that he had appointed 
 Martin Maginnis to fill the vacancy caused by Mr. Clark's resignation. These 
 credentials also were laid on the table. 
 
 Mr. Chandler presented a resolution referring the two credentials to the Com- 
 mittee on Privileges and Elections, with instructions to inquire which of the two 
 claimants was entitled to the seat. This resolution was also laid on the table. 
 
 On June 5,^ very near the end of the session of Congress, Mr. Chandler submitted 
 a resolution providing for a more general investigation of the subject, which was 
 referred to the Committee to Audit and Control the Contingent Expenses of the 
 Senate. 
 
 On December 4, 1900,^ at the beginning of the next session of Congress, Mr. 
 Carter called up for consideration the resolution proposed by Mr. Chandler on May 
 25, providing for an investigation of the rival claims of Messrs. Clark and Maginnis. 
 On December 1 1 * the resolution was considered by the Senate and debated some- 
 what. Mr. Carter, in the course of the debate, stated that the lieutenant-governor 
 of Montana, in the absence of the governor, had appointed Mr. Clark. The governor, 
 on his return, had attempted to revoke that appointment and had then appointed 
 Mr. Maginnis. Mr. John C. Spooner, of Wisconsin, suggested that it might appear 
 that under the decisions of the Senate it might be shown that the governor had no 
 right to appoint at all. 
 
 The resolution was then agreed to. 
 
 Mr. Chandler next asked that the resolution declaring William A. Clark not 
 duly elected, which had remained as unfinished business since the resignation of Mr. 
 Clark, be recommitted to the Committee on Privileges and Elections. This request 
 led to a debate as to the status of Mr. Clark in the Senate before his resignation 
 and as to the nature of the vacancy in view of the power of the governor to appoint. 
 The matter went over ^vithout action. 
 
 On March 2 ^ Mr. Chandler presented a memorial of Henry R. Knapp and 
 others, of Helena, Mont., remonstrating against seating Mr. Clark. 
 
 On the same day " (March 2, 1901) Mr. Chandler called up the resolution declar- 
 ing WiUiara A. Clark not duly elected and proposed an amendment substituting a 
 declaration that !^Ir. Clark was personally responsible for the offenses disclosed by 
 the examination of liis alleged election. Mr. Chandler addressed the Senate, but 
 did not press the amendment to a vote. 
 
 ' Record, p. 6017. * Record, pp. 216-219. 
 
 - Record, p. 6693. ° Record, p. 3389. 
 
 ' Second session Fifty-sixth Congress, Record, p. 29. " Record, p. 3421.
 
 908 
 
 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 § 695 
 
 695. The case of William A. Clark, continued. 
 
 The Senate seated a Senator-elect on prima facie showing of his elec- 
 tion by a legislature, although his election for a prior term had been 
 found by a committee invalid because of bribery. 
 
 At the conclusion of Mr. Chandler's speech, on the same day (March 2, 1901), 
 Mr. James K. Jones, of Arkansas, presented these credentials : ' 
 
 In the Name and by the Authority of the State of Montana. 
 
 To the President of the Senate of the United Slates: 
 
 This is to certify that on the 16th day of January, 1901, William Andrews Clark was duly chosen 
 and elected by the legislature of the State of Montana a Senator from said State to represent said State 
 in the Senate of the United States for the term of six years, beginning on the 4th day of March, 1901. 
 
 In testimony whereof I have hereunto subscribed my name and caused the great seal of the State 
 of Montana to be affixed at my office, at Helena, the 24th day of January, in the year of our Lord 1901, 
 and the one hundred and twenty-fifth year of the independence of the United States of America. 
 
 [seal.] Joseph K. Toole, Governor. 
 
 By the Governor: 
 
 George M. Hays, Secretary of State. 
 
 These credentials were placed on file in accordance with the custom of the 
 Senate, to await the meeting of the next Congress. 
 
 Soon thereafter the Congress ended. 
 
 On March 4, 1901,* at the special session of the Senate in the new Congress 
 Mr. Clark appeared and was sworn in on the strength of the credentials, without 
 challenge. 
 
 696. The Senate election case of Lewis V. Bogy, from Missouri, in 
 the Forty-second Congress. 
 
 A memorial to justify an investigation of the title of a Senator to his 
 seat should state the charges and indicate with certainty the character of 
 the evidence. 
 
 In 1873^ the Senate considered the case of Lewis V. Bogy. March 4, 1873, 
 Mr. Bogy took his seat, having been elected for the term of six years from that 
 date. March 17 the Vice-President laid before the Senate a memorial of members 
 of the legislature, accompanied by a report of a select committee of the legislature 
 appointed to investigate charges of bribery and corruption in the Senatorial elec- 
 tion, praying for an investigation by the Senate of said charges. The memorial 
 was referred to the Committee on Privileges and Elections. 
 
 The report of the committee, submitted on March 25, 1873, by Mr. Oliver P. 
 Morton, of Indiana, was as follows: 
 
 The Committee on Privileges and Elections, to whom was referred tlie memorial of thirty-seven 
 members of the legislature of Missouri in regard to the election of Lewis V. Bogy to the Senate of the 
 United States from that State, have had the same under consideration and submit the following report: 
 
 The memorial sets forth that the recent examination by a committee appointed by the house of 
 representatives of the legislature of Missouri, touching the corrupt use of money in the election of Mr. 
 Bogy, was imperfect; that it was not full and fair, and in the opinion of the memorialists, if the inves- 
 tigation had been conducted with more vigor and with a purpose of revealing the real facts of the case, 
 
 ' Record, p. 3436. 
 
 ^ First session Fifty-seventh Congress, Record, p. 1. 
 
 'Election Cases, Senate Doc. No. 11, special session Fifty-eighth Congress, p. 
 
 609.
 
 § 696 
 
 PLEADINGS IN CONTESTED ELECTIONS. 909 
 
 other and more important evidence would have been produced showing that tliere was corruption in 
 Mr. Bogy's election. 
 
 The memorial, however, does not state what additional facts can be proven, nor indicate with any 
 certainty the character of the new evidence thxit may he produced. 
 
 The committee understand that the only duty which they have upon this reference is to report 
 to the Senate whether the memorial presents such facts as would justify the Senate in instituting an 
 examination in regard to the election of Mr. Bogy and are of the opinion that it does not. Such a 
 proceeding is of a grave character and should not be set on foot without such a statement of the evidence 
 that could probably be produced as would appear to make it the duty of the Senate to proceed to an 
 investigation. 
 
 The evidence taken by the committee of the legislature of Missouri also accompanies the memorial 
 and has been examined by the committee. It is not the province of the committee upon this reference 
 to inquire whether the judgment pronounced by the house of representatives of the Missouri legislature 
 upon this evidence was correct; but they express the opinion that the evidence is not of a character 
 to require of the Senate an investigation. 
 
 The committee therefore ask to be discharged from the further consideration of the memorial and 
 the evidence touching the election of Lewis V. Bogy to the Senate of the United States. 
 
 The recommendation of the committee was agreed to by the Senate.
 
 Chapter XXIIL* 
 
 TESTIMONY IN CONTESTED ELECTIONS. 
 
 1. Provisions of the statutes. Sections 697-706.' 
 
 2. Rules of Elections Committee. Section 707. 
 
 3. Early method of taking evidence. Sections 708, 709.^ 
 
 4. Special authorizations to take evidence. Sections 710-718.' 
 
 6. Questions as to evidence improperly taken. Sections 719, 721.* 
 
 6. Extension of time for taking. Sections 722-728.* 
 
 7. Evidence taken ex parte. Sections 729, 730." 
 
 8. Production of ballots. Sections 731-733. 
 
 * See Volume VI, Chapter CLXIV. 
 
 ' As to the signing of depositions, section 54 of this volume. 
 
 Informalities in depositions, section 736. 
 
 Number of places in which testimony may be taken contemporaneously not limited, section 1112 
 of Volume II. 
 
 Both parties may take testimony at the same time, section 606. 
 
 As to the ofBcer before whom testimony is taken, sections 857, 1049, 1064, 1070, and 1086of Volume II. 
 
 Law as to transmittal held to be directory, section 736. 
 
 As to whether or not House and its committee are bound by legal rules of evidence, sections 960 
 and 1046 of Volume II. 
 
 Incompetent testimony and statements by counsel not to be included in record of case, section 
 1127 of Volume II. 
 
 Testimony should be confined to the pleadings (sees. 640 of this volume and 855, 880, 1015, and 
 1107 of Vol. II); but irrelevant testimony has been admitted (sees. 643 of this volume and 850 and 1052 
 of Vol. II). 
 
 As to consideration of public documents, sections 353 and 608. 
 
 Certified transcripts of records, section 322. 
 
 Records of election returns, sections 472, 835, and 839 of this volume and 1013, 1014, 1022, and 
 1100 of Volume II. 
 
 Historic and other knowledge in lieu of, sections 924, 965, 969, 984, 1016, 1017, 1030, 1034, and 1104 
 of Volume II. 
 
 - House appoints committee to hear testimony, section 756. 
 
 ' House modifies requirements of the law, sections 449 and 600 of this volume and 1122 of Volume 
 II. Forms of resolutions therefor, sections 814 and 815. 
 
 Evidence taken under House's general power of investigation, sections 764, 793, and 803 of this 
 volume and 1018 of Volume II. 
 
 ■* Admission of testimony taken improperly, sections 32G, 525, and 780 of this volume and 920, 
 1012, and 1029 of Volume II. Rejection of such testimony, sections 831 of this volume and 1116 of 
 Volume II. 
 
 Admission of testimony taken after the expiration of the legal time, sections 977 and 1003 of 
 Volume II. Rejection of such testimony, sections 900, 901, 905, and 936 of Volume II. 
 
 Testimony taken in another cause admitted by the House, sections 607 and 624. Rejected by 
 the House, section 685 of this volume and section 913 of Volume II. Considered by the Senate, sec- 
 tions 348 and 356. 
 
 Motions to suppress testimony, section 425. 
 
 * Interpretation of law limiting time of taking, section 936 of Volume II. 
 
 House permits taking of testimony after expiration of the legal limit, sections 505, 824, and 830 
 of this volume and sections 869, 875, 890, 956, 1062, and 1095 of Volume II. But this privilege is not 
 granted where diligence has not been shown, sections 606 and 837 of this volume and 898, 1006, 1063, 
 and 1100 of Volume II. Privilege also granted where returns were rejected, section 1019 of Volume II. 
 
 '■Instances of admission of ex parte evidence, sections 423, 624, 625, 646, 736, and 812 of this 
 volume and 1004, 1006, and 1024 of Volume II. Instances of rejection, sections 321, 685, 834, and 843 of 
 this volume and 872, 927, 930, 1057, 1039, and 1125 of Volume II. 
 910
 
 § 697 TESTIMONY IN CONTESTED ELECTIONS. 911 
 
 697. Ninety days are allowed for taking testimony in an election 
 case, divided between the parties. 
 
 Testimony in an election case must be taken within ninety days from 
 the service of the answer of the returned Member. 
 
 The law governing the service of notice by the party desiring to take 
 a deposition in an election case. 
 
 Testimony in an election case may be taken at tw^o or more places at 
 the same time. 
 
 The statutes provide: 
 
 In all contested election cases the titne allowed fur taking testimony shall be ninety days, and 
 the testimony shall be taken in the following order: The contestant shall take testimony during the 
 first forty days, the returned Member during the succeeding forty days, and the contestant may take 
 testimony in rebuttal only diu"ing the remaining ten days of said period.' 
 
 By the act of ilarch 2, 1875, it is provided that "section 107, Revised Statutes, shall be con- 
 strued as requiring all testimony in cases of contested election to be taken within ninety days from 
 the day on which the answer of the retiu^ned Member is ser\ed upon the contestant. " - 
 
 The party desiring to take a deposition under the provisions of this chapter shall give the oppo- 
 site party notice, in writing, of the time and place when and where the same will be taken, of the names 
 of the witnesses to be examined, and their places of residence, and of the name of any officer before 
 whom the same will be taken. The notice shall be personally served upon the opposite party, or upon 
 any agent or attorney authorized by him to take testimony or cross-examine witnesses in the matter 
 of such contest, if, by the use of reasonable diligence, such personal service can be made; but if, by 
 the use of such dOigence, personal ser\-ice can not be made, the service may be made by leaving a 
 duplicate of the notice at the usual place of abode of the opposite party. The notice shall be served 
 so as to allow the opposite party sufficient time by the usual route of travel to attend and one day for 
 preparation, exclusive of Sundays and the day of service. Testimony in rebuttal may be taken on 
 five days' notice.' 
 
 Testimony in contested election cases may be taken at two or more places at the same time.' 
 
 698. The law governing the application for issuing of subpcenas 
 for witnesses in an election case. — The statutes provide : 
 
 When any contestant or returned Member is desirous of obtaining testimony respecting a contested 
 election he may apply for a subpoena to either of the following ofiicers who may reside within the Con- 
 gress'onal district in which the election to be contested was held: 
 
 First. Any judge of any court of the United States. 
 
 Second. Any chancellor, judge, or justice of a court of record of any State. 
 
 Third. Any mayor, recorder, or intendant of any town or city. 
 
 Fourth. Any register in bankruptcy or notarj' public* 
 
 The officer to whom the application authorized by the preceding section is made shall thereupon 
 issue his writ of subpoena, directed to all such witnesses as shall be named to him, requiring their 
 attendance before him at such time and place named in the subpoena in order to be examined respect- 
 ing the contested election.* 
 
 In case none of the officers mentioned in section 110 are residing in the Congressional district 
 from which the election is proposed to be contested, the application thereby authorized may be made 
 to any two justices of the peace residing within the district, and they may receive such application 
 and jointly proceed upon it.'' 
 
 ' R. S., sec. 107. * R. S., sec. 110. 
 
 - 18 Stat. L., p. 338. s R. S., sec. 111. 
 
 'R. S., sec. 109. »R. S.,sec. 112.
 
 912 
 
 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 699 
 
 699. The law allowing the parties in an election case, by consent in 
 writing, to waive certain formalities in taking testimony.— The statutes 
 provide : 
 
 It shall be competent for the parties, their agents, or attorneys authorized to act in the premises, 
 by consent in writing, to take depositions without notice; also, by such written consent, to take depo- 
 sitions (whether upon or without notice) before any officer or officers authorized to take depositions in 
 common law, or civil actions, or in chancery, by either the laws of the United States or of the State in 
 which the same may be taken, and to waive proof of the official character of such officer or officers. 
 Any written consent given as aforesaid shall be returned with the depositions.' 
 
 700. The law for summoning and examining witnesses in an elec- 
 tion case. 
 
 The law relating to the taking and certification of depositions in an 
 election case. 
 
 The statutes provide: 
 
 Each witness shall be duly served with a subpoena by a copy thereof delivered to him or left at 
 his \isual place of abode at least five days before the day on which the attendance of the witness is 
 
 required. - 
 
 No witness shall be required to attend an examination out of the county in which he may reside 
 or be served with a subpoena.^ 
 
 Any person who, having been summoned in the manner above directed, refuses or neglects to 
 attend and testify, unless prevented by sickness or unavoidable necessity, shall forfeit the sum of 
 twenty dollars, to be recovered with costs of suit by the party at whose instance the subpoena was issued, 
 and for his use, by an action of debt, in any court of the United States, and shall also be liable to an 
 indictment for a misdemeanor and punished by a fine and impris<:inment.'' 
 
 Depositions of witnesses residing outside of the district and beyond the reach of a subpoena may 
 be taken before any officer authorized by law to take testimony in contested election cases in the dis- 
 trict in which the witness to be examined may reside.^ 
 
 The party notified as aforesaid, his agent or attorney, may, if he sees fit, select an officer (having 
 authority to take depositions in such cases) to officiate with the officer named in the notice in the taking 
 of the depositions; and if both such officers attend, the depositions shall be taken before them both, 
 sitting together, and be certified by them both. But if any one of such officers attend, the deposition 
 may be taken before and certified by him alone. ^ 
 
 At the taking of any depositions under this chapter either party may appear and act in person or 
 by agent or attorney.^ 
 
 All witnesses who attend in obedience to a subpoena or who attend voluntarily at the time and 
 place appointed, of whose examination notice has been given, as provided by this chapter, shall then 
 and there be examined, on oath, by the officer who issued the subpoena, or, in case of his absence, by 
 any other officer who is authorized to issue such subpoena, or by the officer before whom the deposi- 
 tions are to be taken by written consent, or before whom the depositions of witnesses residing outside 
 the district are to be taken, as the case may be, touching all such matters respecting the election 
 about to be contested as shall be proposed by either of the parties or their agents.* 
 
 701. The law relating to the pertinency of testimony in an election 
 case. — The statutes provide: 
 
 The testimony to be taken by either party to the contest shall be confined to the proof or disproof 
 of the facts alleged or denied in the notice and answer mentioned in sections one hundred and five and 
 one hundred and six.' 
 
 ' R. S., sec. 113. <> R. S., sec. 118. 
 
 = R. S., sec. 114. ■'R.S., sec. 119. 
 
 = R. S.,sec.ll5. 8 R. S., sec. 120. 
 
 *R. S.,sec. 116. »R. S., sec. 121. 
 'R. S., sec. 117.
 
 § 702 TESTIMONY IX CONTESTED ELECTIONS. 913 
 
 702. The law for the transcribing and attestation of testimony in an 
 election case. — The statutes provide : 
 
 The officer shall cause the testimony of the witnesses, together with tlie questions proposed by the 
 parties or their agents, to be reduced to writing in his presence, and in the presence of the parties or their 
 agents, if attending, and to be duly attested by the witnesses respectively.' 
 
 703. The officer presiding at the taking of testimony in an election 
 case has the power to require the production of papers. 
 
 The law requires the testimony taken in an election case to be trans- 
 mitted to the Clerk of the House by the officer before whom it was taken. 
 
 The statutes provide : 
 
 The officer shall have power to require the production of papers; or on the refusal or neglect of any 
 person to produce and deliver up any paper or papers in his possession pertaining to the election, 
 or to produce and deliver up certified or sworn copies of the same in case they may be official papers, 
 such persons shall be liable to all the penalties prescribed in section one hundred and sixteen. All papers 
 thus produced, and all certified or sworn copies of official papers, shall be'transmitted by the officer, with 
 the testimony of the witnesses, to the Clerk of the House of Representatives. - 
 
 704. The taking of testimony in an election case may be adjourned 
 from day to day. 
 
 The notice to take depositions and a copy of the subpoena are attached 
 to the depositions in an election case. 
 
 A copy of the notice of contest and the answer in an election case are 
 sent to the Clerk of the House with the testimony. 
 
 The statutes provide: 
 
 The taking of the testimony may, if so stated in the notice, be adjourned from day to day.' 
 
 The notice to take depositions, with the proof or acknowledgment of the service thereof, and a copy 
 
 of the supoena, where any has been served, shall be attached to the depositions when completed. ■* 
 
 A copy of the notice of contest, and of the answer of the returned Member, shall be prefixed to the 
 
 depositions taken, and transmitted with them to the Clerk of the House of Representatives.' 
 
 705. The law prescribing the method of forwarding to the Clerk of 
 the House the testimony in an election case. 
 
 Law governing the duty of the Clerk of the House as to the printing 
 of testimony in an election case. 
 
 The law governing the filing of contestant's and contestee's briefs in 
 an election case, and the printing thereof. 
 
 The statutes provide : 
 
 All officers taking testimony to be used in a contested election case, whether by deposition or other- 
 wise, shall, when the taking of the same is completed, and without unnecessary delay, certify and 
 carefully seal and immediately forward the same, by mail or by express, addressed to the Clerk of the 
 House of Representatives of the United States, Washington, District of Columbia; and shall also indorse 
 upon an envelope containing such deposition or testimony the name of the case in which it is taken, 
 together with the name of the party in whose behalf it is taken, and shall subscribe such indorsement. 
 
 The Clerk of the House of Representatives, upon the receipt of such deposition or testimony, shall 
 notify the contestant and the contestee, by registered letter through the mails, to appear before him at the 
 
 ' R. S., sec. 122. * R. S., sec. 125. 
 
 - R. S., sec. 123. ^ R. S., sec. 126. 
 
 ' R. S., sec. 124. 
 5994^voL 1—07 58
 
 914 
 
 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 § 706 
 
 Capitol, in person or by attorney, at a reasonable time to be named, not exceeding twenty days from the 
 mailing of such letter, for the purpose of being present at the opening of the sealed packages of testimony 
 and of agreeing upon the parts thereof to be printed. Upon the day appointed for such meeting the said 
 Clerk shall proceed to open all the packages of testimony in the case, in the presence of the parties or 
 their attorneys, and such portions of the testimony as the parties may agree to have printed shall be 
 printed by the Public Printer, under the direction of the said Clerk; and in case of disagreement between 
 the parties as to the printing of any portion of the testimony, the said Clerk shall determine whether such 
 portion of the testimony shall be printed; and tlie said Clerk shall prepare a suitable index to be printed 
 with the record. And tlie notice of contest and the answer of the sitting Member shall also be printed 
 with the record.' 
 
 If either party, after having been duly notified, should fail to attend by himself or by an attorney, 
 the Clerk shall proceed to open the packages, and shall cause such portions of the testimony to l)e printed 
 as he shall determine. 
 
 He shall carefully seal up and preserve the portions of the testimony not printed, as well as the other 
 portions when returned from the Public Printer, and lay the same before the Committee on Elections at 
 the earliest opportunity. As soon as the testimony in any case is printed the Clerk shall forward by mail, 
 if desired, two copies thereof to the contestant and the same number to the contestee; and shall notify the 
 contestant to file with the Clerk, within thirty days, a brief of the facts and the authorities relied on to 
 establish his case. The Clerk shall forward l)y mail two copies of the contestant's brief to the contestee, 
 with like notice. 
 
 Upon receipt of the contestee's brief the Clerk shall forward two copies thereof to tlie contestant, 
 who may, if he desires, reply to new matter in the contestee's brief within like time. All briefs shall be 
 printed at the expense of the parties, respectively, and shall be of like folio as the printed record; and 
 sixty copies thereof shall be filed with the Clerk for the use of the Committee on Elections. - 
 
 706. The law regulating the fees of witnesses and officers in the 
 preparation of an election case. — The statutes provide : 
 
 Every witness attending Ijy virtue of any subpoena herein directed to he issued shall be entitled 
 to receive the sum of seventy-five cents for each day's attendance, and the further sum of five cents 
 for every mile necessarily traveled in going and returning. Such allowance shall be ascertained and 
 certified by the officer taking the examination, and sliall he paid by the party at whose instance 
 such witness was summoned.^ 
 
 Each judge, justice, chancellor, chief executive officer of a town or city, register in bankruptcy, 
 notary pulilic, and justice of the peace, who shall be necessarily employed pursuant to the provisions 
 of this chapter, and all sheriffs, constables, or other officers who may be employed to serve any sub- 
 poena or notice herein authorized, shall be entitled to receive from the party at whose instance the 
 service shall have been performed such fees as are allowed for similar services in the State wherein such 
 service may be rendered.* 
 
 707. Rules of the Elections Committees for hearing a contested elec- 
 tion case. — Committees on Elections in the House of Representatives have 
 adopted rules to govern the hearing of a contested case: 
 
 1. All proceedings of the Committee on Elections shall be recorded in the journal, which shall be 
 signed daily by the clerk. 
 
 2. No paper shall be removed from the committee room without the permission of the committee, 
 except for the purpose of being printed or used in the House. 
 
 ' In the case of Arnold r. Lea in 1830, the House by resolution prescribed a similar method of decid- 
 ing what portions of the testimony in the pending case should be printed for the information of the House 
 during the discussion. (First session Twenty-first Congress, pp. 119, 125. Contested Elections (Clarke), 
 pp. 606, 607.) 
 
 ^ Act approved March 2, 1887. 24 Stat. L., p. 445. 
 
 3R. S., sec. 128. 
 
 ■•R. S., sec. 129.
 
 § 708 TESTIMONY IN CONTESTED ELECTIONS. 915 
 
 3. Oral arguments may be heard for such time as Uie committee may allow, not exceeding one 
 hour and a half on each side, unless otherwise ordered 
 
 4. After any contested-election case, or any qiestion pertaining thereto, has been argued and 
 submitted to the committee and the committee is ready to proceed with the case there shall be allowed 
 to the members thereof three hours for debate, at the expiration of which time a vote shall be taken 
 upon the pending proposition, unless otherwise ordered. The time allowed for debate in the committee 
 shall be divided as follows: Those favoring the proposition shall open in one hour; those opposing shall 
 follow in one hour and a half; and the former shall close in a half hour, unless otherwise ordered. 
 
 When the debate has been closed and the committee is ready to decide, the chairman shall take 
 the opinion of each member of the committee separately. Each member of the committee, when thus 
 called upon, shall announce his opinion. 
 
 5. No person shall be present during any consultation of the committee except the members and 
 clerk. 
 
 6. All papers referred to the committee shall be entered on the docket by the House docket clerk 
 according to the number of the packages, and they shaU be identified upon the docket. 
 
 '!. Nothing contained in these rules shall prevent the conmiittee, when Congress is in session, from 
 ordering briefs to be filed and a case to be heard at any time the committee may determine. 
 
 8. The foregoing rules shall not be altered or amended except by a vote of a majority of all the 
 members of the committee. 
 
 708. The Georeria election case of Jackson v. Wayne in th.e Second 
 Congress. 
 
 Instance of an early election case instituted by petition. 
 
 Form of petition instituting an early election case. 
 
 In 1791 the House, by resolution, adopted a method of taking evi- 
 dence in contested-election cases. 
 
 Reference to the early law for taking evidence in election cases (foot- 
 note) . 
 
 On November 1, 1791,' Mr. Anthony Wayne appeared, produced his credentials 
 as a Member-elect from Georgia, and took his seat. 
 
 On November 14, 1791,^ the following petition was presented to the House on 
 behalf of James Jackson : 
 
 That at the late election for Members to represent the State of Georgia in your honorable House, 
 for the present Congress, General Anthony Waj-ne and your petitioner were candidates for the lower 
 or eastern district of said State. That an improper and undue return has been made to your House of 
 the said election; for that the ceunty election of Effingham, in favor of the said Anthony Wa>-ne, was 
 illegal, there being nine more votes at the same than there were voters, and two of the persons presiding 
 thereat were not qualified magistrates; for that the return of Glynn County, in favor of your petitioner, 
 was suppressed; for that a false return was made to the executive of the State for the county of Camden, 
 exceeding the numbers of the legal poll, which amounted to 25 votes, by the number of 64 votes, all of 
 which were in favor of the said Anthony W'aj-ne, and added together with the legal poU very far exceeds 
 the whole number of male inhabitants entitled to vote therein; and for that an illegal or pretended poU 
 was held after the legal poU was closed, and on which illegal poU the aforesaid false return was founded, 
 and the legal return, after being duly certified by the proper officer, waa either suppressed or destroyed. 
 
 On October 31 ^ it was: 
 
 Resolved, That a committee be appointed to report a regular and uniform mode of proceeding 
 in cases of contested elections of Members of this House. 
 
 ' First session Second Congress, Journal, p. 445. 
 
 - First session Second Congress, Contested Elections in Congress from 1789 to 1834, pp. 47-68; House 
 Journal, p. 452. 
 
 ■" Journal, p. 444.
 
 916 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 709 
 
 Messrs. Fisher Ames, of Massachusetts, Jonathan Dayton, of New Jersey, 
 John Brown, of Virginia, Thomas Fitzsimons, of Pennsylvania, and Thomas Tudor 
 Tucker, of South Carohna, were appointed of tliis committee. 
 
 On November 16,* the petition of Mi-. Jackson was referred to this committee, 
 and on November 18 that committee reported. 
 
 On November 25 ^ the report, after consideration, was agreed to as follows : 
 
 Resolved, That the first Monday of February next be assigned for the trial of the articles alleged 
 in the said petition, against the said return. 
 
 Resolved, That the evidence which may be offered, on the part of the petitioner, shall be confined 
 to the proof of the articles of charge exhibited in the said petition against the validity of the return 
 of the said election. 
 
 Resolved, That, on the trial, the deposition of a witness shall be received, which shall have been 
 taken more than twenty-five days prior to the day assigned for the trial, before any justice or judge 
 of the courts of the United States, or before any chancelor, justice, or judge, of a supreme or superior 
 court, mayor or chief magistrate of a city, or judge of a county court, or court of common pleas of any 
 of the United States, not being of counsel or attorney to either the said Anthony Wayne or the 
 petitioner. 
 
 Provided, That a notification from the magistrate, before whom the deposition is to be taken, 
 to the adverse party, to be present at the taking of the same, and to put inteiTogatories, if he think fit, 
 shall have been first made out and served on the adverse party, or his attorney especially authorized 
 for the purpose as either may be nearest, if either is within 100 miles of the place of such caption, 
 allowing time for their attendance, after notified, not less than at the rate of one day, Sundays exclusive, 
 for every 20 miles travel. And every person deposing shall be carefully examined and cautioned, 
 and sworn or affirmed to testify the whole truth, and shall subscribe the testimony by him or her given, 
 after the same shall be reduced to writing, which shall be done only by the magistrate taking the 
 deposition, or by the deponent in his presence. And the depositions so taken, together with a certifi- 
 cate of the notice, if any, given to the adverse party, or his attorney, shall be sealed up by the said 
 magistrate, and directed to the Speaker; 
 
 Provided, nevertlieless. That no ex parte deposition shall be used on the trial of the said petition, 
 which shall have been taken at any time before the 26th day of December next; 
 
 Provided, also, That evidence taken in any other manner than is hereinbefore directed, and not 
 objected to by the parties, may with the approbation of the House, be produced on the trial. ^ 
 
 709. The case of Jackson v. Wayne, continued. 
 
 In 1791 the House admitted the contestant and his counsel to the bar 
 to produce testimony in an election case. 
 
 The House declined to admit as evidence in an election case the deci- 
 sion of a State impeachment court on a related subject. 
 
 In 1791 the House declined to admit as evidence in an election case 
 official State papers under seal. 
 
 In an early election case the House, having ascertained great irregu- 
 larities, unseated the returned Member, but did not seat contestant. 
 
 ' Journal^ p. 455, 457. 
 
 ^ Journal, p. 463. 
 
 ^ On December 6, 1797 (Contested Election Cases, Clarke, p. 12), the House discussed a series of 
 resolutions providing a rule for taking testimony in election cases. In 1798 (1 Stat. L., p. 537) a law 
 was passed providing a method of proceeding, but also providing that it should be in force no longer 
 than the end of the first session of the Sixth Congress. In 1800 (2 Stat. L., p. 39) this law was continued 
 for four years longer. At various later dates, up to 1830, the revival of this or a similar law was attempted, 
 but failed. (Contested Election Cases, Clai-ke, pp. 16, 17.) The present system of law dates from 
 1851.
 
 § 709 TESTIMONY IN CONTESTED ELECTIONS. 917 
 
 A seat being declared vacant, the Speaker was directed to inform the 
 executive of the State. 
 
 On November 18 ' Mr. Ames submitted the report of the committee. 
 
 On February 6, 1792,^ a petition was presented from James Jackson, prajang 
 that the trial of the case be postponed "for twenty days, in conformity to the tenor 
 of an agreement entered into between the attorneys of the said Anthony Wayne 
 and the petitioner," and the House postponed the trial for twenty days, it to 
 take place at the end of that time "in the manner prescribed by the resolution 
 of this House of the 25th of November last." 
 
 On February 27,^ the day assigned for the trial, the petitioner, on his appUca- 
 tion, was admitted to the bar of the House, and an application was made on the 
 part of the sitting Member to postpone the trial further. Both the sitting Member 
 and the petitioner were fully heard, and then the House voted that the case be 
 postponed until the second Monday in March. 
 
 On March 12,^ the case being taken up, the sitting Member with his counsel, 
 and the petitioner were present within the bar of the House. Application was 
 made by the counsel for sitting Member for a further postponement, which the 
 House denied. The petitioner then proceeded to exhibit and read his proofs in 
 support of the allegations of his petition, so far as respected the first article therein 
 contained. This presentation of petitioner's case continued on March 13 and 14. 
 On the latter day ^ an application in writing was made by the petitioner as follows : 
 
 That the decision of the senate of the State of Georgia, on the impeachment of Judge Osborne, 
 so far as respects the Camden return for a Member to represent the State of Georgia, on the 3d day of 
 January, 1791, he received as evidence in the present trial of that election, to establish the corruption 
 of Judge Osborne. 
 
 It was alleged " by the petitioner that Judge Osborne had been presiding officer 
 at Camden, and at the close of the poll, had been instrumental in a manipulation 
 of the returns, and in the suppression of the retiu-n of Glynn County. In offering 
 the decision of the Georgia senate the petitioner declared that " the point at issue 
 [in the impeachment and in the pending case] was the same, whether corruption 
 had or had not taken place at this election." It is to be inferred from the debate, 
 although it does not positively appear, that Judge Osborne's conduct at Camden 
 was one of the grounds of the impeachment. 
 
 The counsel for the sitting Member objected to the decision as unconnected 
 with this case, and ex parte. 
 
 The question being taken on admitting the decision, the House decided not to 
 admit it — yeas 20; nays 41. 
 
 The petitioner having concluded with his exhibits and proof, the sitting Member 
 by his counsel entered into the defense, producing exhibits and proofs in opposition. 
 On March 15,' the sitting Member having concluded, the petitioner was heard in 
 reply. After this the parties retired from the bar. 
 
 ' .lournal, p. 457. ' Journal, p. 535. 
 
 - .Tournal, p. 502. ^ Annals, pp. 463^67. 
 
 ^ Journal, pp. 521, 522. 'Journal, p. 536. 
 ■* Journal, pp. 534, 535.
 
 918 PRECEDENTS OF THE HOUSE OF EEPKESENTATIVES. § 710 
 
 A motion was then made and seconded : 
 
 That certain proceedings of the house of representatives of the State of Georgia, accompanied with 
 other papers, transmitted agreeable to their resolution, under the signature of the governor and the seal 
 of the State, relative to the election of a Member to represent the eastern district of the said State in this 
 House be received. 
 
 As to this motion the Journal has the entry that it was lost through a negativing 
 of the previous question. By the usage of that time such a decision defeated the 
 
 motion. 
 
 On March 16' the House gave decision. The grounds of the contest and the 
 attitude of the House as to the various specifications do not appear with much cer- 
 tainty; but by a xmanimous vote the House agreed to the following resolution, 
 great irregularities being shown : 
 
 Resolved, That Anthony Wayne was not duly elected a Member of this House. 
 
 It was then moved : 
 
 That the Speaker do transmit a copy of the said vote to the executive of the State of Georgia. 
 
 On March 19 ^ this resolution was proposed: 
 
 Resolved, That the petitioner, James Jackson, is entitled to a seat in this House as a Member for the 
 lower district of the State of Georgia; and that the right of petitioning against the election of the said 
 James Jackson be reserved to all persons at any time during the term for which he was elected. 
 
 This resolution was debated at length on March 20 and March 21.= It was 
 urged that the petition had related only to the right of Mr. Wayne, and that on the 
 case so far as made up the House was authorized only in finding that Mr. Wayne 
 was not elected. It was not for the House to decide as to the election of Mr. Jackson, 
 who did not appear with any credentials from the State of Georgia. On the other 
 hand, it was urged that the one having the greater number of sound votes was entitled 
 to the seat, and that, as there were only two candidates, Mr. Jackson should be 
 seated to fill the vacancy. 
 
 The question being taken,'' there appeared in favor of the resolution to seat Mr. 
 Jackson — yeas 29, and against, nays 29. The Speaker declared himself with the 
 nays. 
 
 It was then — 
 
 Resolved, That the seat of Anthony Wayne, as a Member of this House, is, and the same is declared 
 to be, vacant. 
 
 Resolved, That the Speaker transmit a copy of the preceding resolution, and of this order, to the 
 executive of the State of Georgia, to the end that the said executive may issue writs of election to fill 
 the said vacancy. 
 
 710. The House has issued a subpoena duces tecum in order to pro- 
 cure election returns to be used in determining election cases. — On June 
 20, 1874,^ on motion of Mr. L. Q. C. Lamar, of Mississippi, by direction of the Com- 
 mittee on Elections, the House agreed to the following: 
 
 Whereas it is necessary to a proper determination of the several contests from the Congressional 
 districts of Louisiana, now pending in the House, that the Committee on Elections should be in possession 
 
 'Journal, p. 536. ■'Journal, pp. 542, 543. 
 
 2 Journal, p. 540. 'First session Forty-third Congress, Journal, p. 1263; Record, p. 5316. 
 
 ^.\nnals, pp. 475-479.
 
 § 711 TESTIMONY IN CONTESTED ELECTIONS. 919 
 
 of the original election returns of the general election held in that State on the 4th day of November, 
 1872; and whereas those returns are said to be in the possession of John McEnery, and said McEnery 
 being unwilling to produce said returns except upon order of said committee: Therefore, 
 
 Be it resolved by this House, That a subpoena duces tecum be issued to said McEnery, requiring him 
 to produce in person before said committee said election returns on or before the first Monday in Decem- 
 ber, 1874; and also that subpoenas be issued to Archibald Mitchell and WilliamWareper, of New Orleans, 
 requiring them to be and appear before said Committee on Elections on the first Monday in December, 
 A. D. 1874. 
 
 711. The Maryland election case of Jackson v. Smith in the Fifty- 
 ninth Congress. 
 
 The evidence in an election case conducted according to law being 
 insufficient, the House authorized its committee to take additional testi- 
 mony. 
 
 On June 28, 1906,' Mr. James M. Miller, of Kansas, from the Committee on 
 Elections No. 2, submitted the following resolution, which was agreed to by the 
 House : 
 
 ^\'hereas the contested-election case of William H. Jackson v. Thomas A. Smith, from the First 
 Congressional district of Maryland, was referred to the Committee t)n Elections No. 2, and the said 
 committee, after careful consideration of the record therein, finds that the evidence already taken is not 
 sufficient upon which to base a conclusion as to the proper determination of said contest: Now, there- 
 fore, be it 
 
 Resolved by the House of Representatives, That the Committee on Elections No. 2 shall be, and is 
 hereby, authorized and empowered to take such testimony as it shall deem necessary to the determination 
 of the questions of fact in the contested case of Jackson i'. Smith, from the First Congressional district 
 of Maryland, and shall have power to send for all such persons and papers as it may find necessary for 
 the proper determination of said controversy, and determine the time, place, and manner of taking said 
 testimony, which may be taken before the said committee, or any subcommittee, or any person selected 
 by said committee for such purpose, and that the expenses incurred in taking said testimony shall be 
 paid from the contingent fund of the House upon the order of said Committee on Elections No. 2. 
 
 712. The Pennsylvania election case of Carrigan v. Thayer, in the 
 Thirty-eighth Congress. 
 
 A contestant having neglected to take the strictly legal means pro- 
 vided for taking testimony, the House denied his application for new 
 authority to compel testimony. 
 
 On June 22, 1864,^ the Committee on Elections reported in the case of Carrigan 
 V. Thayer, of Pennsylvania. The contestant in this case had made application to 
 the committee for authority from the House to summon the mayor and recorder 
 of Philadelphia, the legal custodians of the ballot boxes of a portion of this district, 
 to bring with them these ballot boxes for examination either before the committee 
 or some competent magistrate. 
 
 The reason for this request was the allegation that those witnesses had failed 
 to obey a subpoena duces tecum issued by two justices of the peace dming the time 
 prescribed by the statute of 1851 for taking testimony, requiring them to appear 
 and produce the said ballot boxes for examination. 
 
 The statute of 1851 named as the officers authorized to issue subpoenas and 
 examine witnesses "any judge of any covut of the United States, or any chancellor, 
 
 ' First session Fifty-ninth Congress. 
 
 ^ First session Thirty-eighth Congress, House Report No. 126; 1 Bartlett, p. 576; Rowell's Digest, 
 p. 190.
 
 920 PKECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 713 
 
 judge, or justice of a court of record of any State, or any mayor, recorder, or intend- 
 ant of any town or city, which said officer shall reside within the Congressional 
 district in which said contested election was held." 
 
 There was a further provision of this act, which, with the construction put 
 upon it, is thus stated by the committee: 
 
 By the ninth section of the same act it is provided that "when no such magistrate as is by the 
 third section of this act authorized to take depositions shall reside in the Congressional district from 
 which the election is proposed to be contested, it shall be lawful for either party to make application 
 to any two justices of the peace residing within the said district, who are hereby authorized to receive 
 such application and jointly to proceed upon it in the manner hereinbefore directed. 
 
 It will be seen that two justices of the peace have jurisdiction and authority only when there are 
 none of the magistrates mentioned in the third section resident in the district. When any one of those 
 magistrates resides in the district the two justices can do nothing. Now it appeared that there were 
 resident in this district, during the whole time fixed by the statute for taking testimony in this case, 
 three judges of the court of common pleas of the State of Pennsylvania, a court of record. The two 
 justices of the peace had therefore no jurisdiction or authority in the premises, and their subpoena was 
 therefore only so much blank paper, which no one was bound to obey. 
 
 It follows that the contestant had taken no legal steps to procure this testimony within the time 
 fixed by law. The contestant showed no good reason for this omission, and while some of the committee 
 were of opinion, for the reasons stated in the report in the case of Kline v. Myers, that the contestant was 
 not entitled to this testimony without first showing some ground of suspicion that the return was not 
 correct, all of the committee were of opinion that, for the reason heretofore stated, the contestant having 
 taken no legal steps to procure this testimony, and showing no good reason for the omission, he is not 
 entitled to the relief prayed for. The application was therefore denied. 
 
 Therefore the committee reported a resolution declaring the sitting Member 
 entitled to the seat, and Mr. Carrigan not entitled to it. 
 
 On June 24 ' the report was considered by the House, a protest by the con- 
 testant against the technical rule which excluded his evidence being the only debate. 
 The resolutions proposed by the committee were agreed to without division. 
 
 713. The Missouri election case of Wagoner v. Butler in the Fifty- 
 seventh Congress. 
 
 The House, in a case wherein the terms of the law would prevent 
 taking testimony in an election case in time for decision, provided a 
 method by resolution. 
 
 Discussion of the principle that the House is not bound by any stat- 
 ute in exercising its prerogative of judging the elections of its Members. 
 
 On December 6, 1902, Mr. Marlin E. Olmsted, of Pennsylvania, from the Com- 
 mittee on Elections No. 2, submitted a report" on the memorial of George C. R. 
 Wagoner, who contested the seat of James J. Butler, of Missouri. At the first ses- 
 sion of this Congress Mr. Butler had been unseated, and at a subsequent election 
 had been again returned. The preamble and resolutions as submitted by Mr. Olm- 
 sted in a supplemental report^ state the facts of the case: 
 
 Whereas James J. Butler having been returned as elected to membership in this Congress from the 
 Twelfth district of Missouri, his right to such membership was contested on the ground of gross frauds 
 in his election, and having heard said contest this House, on the 28th day of June, 1902, declared said 
 Butler not to have been elected; and 
 
 'Journal, p. 892; Globe, p. 3243. 
 
 ^ Second session Fifty -seventh Congress, House Report No. 2780. 
 
 ' Supplemental Report No. 3857.
 
 § 713 TESTIMONY IN CONTESTED ELECTIONS. 921 
 
 Whereas an election having been held November 4, 1902, to fill the vacancy resulting from the 
 said action of this House, the said Butler was again returned as elected from the said district, took the 
 oath of office December 1, 1902. and now occupies a seat in this House, and George C. R. Wagoner has, 
 through a Member of the House, presented a memorial or petition claiming that he, and not the said 
 Butler, was duly elected, alleging gross frauds in the election and showing that he has served upon said 
 Butler a notice of contest; and 
 
 WTiereas the full time allowed by statute for the taking of testimony, filing of briefs, etc., in such 
 cases would extend beyond the term of the present House, thus preventing it from judging of the merits 
 of the said contest, and the said Wagoner in his petition prays that by appropriate action such time shall 
 be so shortened as that the controversy may be determined before the expiration of the Fifty-seventh 
 Congress; and 
 
 Whereas Committee on Elections No. 2, to which said petition was referred, has reported that it 
 awarded a hearing to both parties and that the said Wagoner declares his ability to take the testimony 
 upon his side in fifteen days, and the said Butler making no estimate of the time that will be required 
 by him, and denies the power of this House to shorten the time as fixed by the act of 1851, and other 
 statutes; and 
 
 ■Whereas it is the sense of the House that this contest should be heard and decided at this session: 
 Therefore 
 
 Resolved, That in the contested election case of George C. R. Wagoner r. James J. Butler, from the 
 Twelfth Congressional district of Missouri, the contestee shall be required to serve upon contestant his 
 answer to notice of contest on or before December 20, 1902, and that the time for taking and completing 
 testimony in such case shall be limited as follows: The contestant shall be allowed from December 15, 
 1902, until and including January 3, 1903, in which to take testimony; the contestee shall be allowed 
 from Januarj' 3, 1903, until and including January 27, 1903, for the taking of his testimony, and the 
 contestant shall be allowed from January 27, 1903, until and including Febniary 1, 1903, for the taking 
 of testimony in rebuttal. As soon as the testimony shall have been received by the Clerk of this House 
 it shall at once be referred to the Committee on Elections No. 2, and the said committee shall proceed 
 to the consideration of the case; and, having first afforded to the parties an opportunity to be heard as 
 to the merits of the same, shall report to this House its conclusions with respect to such case in time to 
 afford to the House an opportunity to pass upon the same during the present session of Congress. Except 
 BO far as herein otherwise provided, this case shall be governed by the ordinary rules of procedure in 
 contested Congressional election cases. 
 
 The committee had concluded, from the showing made by the contestant, that 
 his contest was not frivolous and not without reasonable grounds. 
 
 As to the right of the House to depart from the terms of the act of 1851, a right 
 which sitting Member denied, the committee in their first report cite the precedent 
 of Benoit v. Boatner; and in their supplemental report saj': 
 
 We have no hesitation in saying that there is no statute which can fetter this House in the exercise 
 of the high privilege and important duty devolved upon it by the constitutional declaration that "each 
 House shall be the judge of the elections, returns, and qualifications of its own members." 
 
 The first legislative action upon the subject was taken in the Fifth Congress, and resulted in the 
 act which was approved by the President January 23, 1798. That bill was reported to the House by 
 Mr. Harper, of South Carolina, from a select committee of five appointed for the purpose. In their report 
 the committee unanimously conceded that the provisions of such a statute could not be enforced on any 
 future House of Representatives, and that its only proper and necessary function would be to provide 
 the mode in which testimony should be taken and grant the powers for the compelling of attending of 
 witnesses, leaving it for each House to determine when testimony thus taken should be presented, 
 whether it would receive it or not, "while the constitutional rights of each House would be saved by its 
 power to adopt or reject the rule for the admission of the testimony." 
 
 In the Senate, however, an amendment was inserted as the result of which the act expired at the 
 end of the first session of the Sixth, or next. Congress. Two or three subsequent attempts were made 
 to enact legislation upon the subject, but the majority of the House seemed to have considered that such 
 legislation would be wholly unconstitutional, and from that time until 1851 there was no method of 
 taking testimony until the first session of the Congress to which the opposing parties claimed to have 
 been elected, thus in ordinary cases deferring for more than a year even the commencement of a contest.
 
 922 PRECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 713 
 
 To remedy this difficulty Mr. William Strong, of Pennsylvania, afterwards a justice of the supreme 
 court of that State and later of the Supreme Court of the United States, prepared and championed to 
 its passage the act of 1851. To the argument that it was wholly unconstitutional because infringing upon 
 the privileges of the House, he made much such reply as was embraced in the report made by Mr. Har- 
 per's committee to the Fifth Congress, contending that the act, as framed, would not and could not inter- 
 fere with the constitutional rights of any subsequent House, because, as he said, "there is no provision 
 restraining the power of the House to proceed in another manner." (Congressional Globe, p. 109.) 
 
 In the Thirty-fifth Congress, in the case of Brooks v. Davis, the House having been asked to depart 
 from the provisions of the act of 18.51, a minority of the committee filed a report in favor of granting the 
 request. In said report they said: 
 
 " If it is claimed that the act of 1851 prevents the House of Representatives from pursuing an inves- 
 tigation in any other manner than prescribed by that act, it would then be wholly inoperative, coming 
 into conflict with the fifth section of the first article of the Constitution of the United States, which pro- 
 vides 'each House shall be the judge of the elections, returns, and qualifications of its own memlx-rs.' 
 No prior House of Representatives can prescribe rules on this subject of binding force upon its successor, 
 nor can the Senate interfere to direct the mode of proceeding; the House of Representatives is not a con- 
 tinuing body, each body of Representatives having an independent and limited existence, and having 
 the clear right to determine, in its own way, upon 'the elections, returns, and qualifications of its own 
 members.' A like authority is given, and in similar terms, to each House to 'determine the rules of its 
 proceedings, punish its members for disorderly behavior,' etc.; and no member will pretend that a gen- 
 eral law, passed in such terms as the act of 1851, would restrain any House from acting on these subjects 
 independently of the law." 
 
 That report was signed by four noted lawyers, among them Mr. L. Q. C. Lamar, of Mississippi, 
 afterwards Attorney-General under President Cleveland and by him appointed a justice of the Supreme 
 Court of the United States. 
 
 See also the decision in United States r. Ballin (141 U. S., 1), unanimous opinion of the court 
 written by Mr. Justice Brewer, Mr. Lamar being at that time a member of the court. 
 
 The majority report, presented by Mr. Boyce, of South Carolina, agreed with the minority as to 
 the powers of the House, but held that in that particular case it was inexpedient to depart from the pro- 
 visions of the statute until the contestant had first exercised all his rights thereunder. 
 
 In Williamson r. Sickles (1 Bart., 288) Mr. Dawes, of Massachusetts, presented the report of the 
 committee, holding that the act of 1851 had no binding force upon the House. The minority report 
 raised the direct issue by declaring "that it is not competent for the committee to recommend any action 
 to the House which involves a violation of the law of 1851, because as a law of Congress it is obligatory 
 alike upon the House, the committee, and the contestant." The resolution reported by the majority 
 was adopted by the House, yeas 80, nays 64. 
 
 Other cases upon the subject in addition to Benoit v. Boatner in the Fifty-fourth Congress, are 
 Reader v. WTiitfield, Dailey v. Morton, Coffroth v. Koontz. 
 
 The Kentucky cases in the Fortieth Congress, Congressional Globe, first session, p. 546: Bisbee v. 
 Finley, 2 Ells., 172; Jones v. Shelly, 2 Ells., 681; Rowell's Digest, 394; Fuller v. Dawson, 2 Bart., 126; 
 McGrorty v. Hooper, 2 Bart., 211; Thomas v. Arnell, 2 Bart., 162; Hunt v. Sheldon, 2 Bart., 530; Sheafe 
 V. Tillman, 2 Bart., 907; Kline v. Verree, 1 Bart., 574; Chapman v. Ferguson. 1 Bart., 267; Howard v. 
 Cooper, 1 Bart., 275; Vallandingham v. Campbell, 1 Bart., 223; Bell v. Snyder. Smith, 247. See also 
 Paine on Elections, sections 996 and 1003. 
 
 The resolution and preamble were considered in the House on December 11, 
 1902,' and debated at length. The legal proposition of the committee was not seri- 
 ously disputed, however. An amendment extending for five days the time within 
 which sitting Member should file his answer to the notice was agreed to without 
 objection. A substitute proposed by the minority was disagreed to, and then the 
 resolution was agreed to, yeas 155, nays 117. 
 
 ' Journal, pp. 39, 40; Record, pp. 231-245.
 
 §714 
 
 TESTIMONY IX CONTESTED ELECTIONS. 923 
 
 714. The Alabama election case of Jones v. Shelley, in the Forty- 
 seventh Congress. 
 
 Instance wherein the Elections Committee, on the strength of a mem- 
 orial from contestant and general knowledge, recommended taking tes- 
 timony more expeditiously than provided by law. 
 
 On January 23, 1883,^ Mr. A. A. Ranney, of Massachusetts, from the Committee 
 on Elections, submitted the report of the majority in the Alabama case of Jones v. 
 Shelley, in the matter of the memorial of John W. Jones, the contestant. The report 
 thus states the case: 
 
 The committee have heard the parties more directly interested, examined the memorial, and 
 inquired into the facts, so far as is deemed necessary for present purposes. The House is asked by the 
 petitioner, in a pending contest for the seat as Representative from the Fourth Congressional district of 
 Alabama, to fill a vacancy, to prescribe another and more summary mode of procedure than that provided 
 for by the acts of Congress relating to contested elections. The reason is that the time allowed the parties 
 under such acts is such that the present term of Congress will have expired long before the contest can in 
 regular course be concluded. It is perfectly apparent that unless the House does what is asked the 
 contest will prove futile. That the House has authority to do what is requested does not admit of a doubt. 
 The only question is whether there is time now before the end of the session to accomplish the desired 
 purpose, or whether any other mode of procedure which is reasonable and practicable can avail anything. 
 The memorial sets forth with great clearness and completeness a state of facts which calls loudly for such 
 action, if it is likely to be of any use commensurate with the attendant labor and expense thereof. 
 
 The sitting Member, after having been once unseated at the present Congress, has been again 
 returned with a new certificate in hand to fill the vacancy. He was unseated because the certificate 
 before was the result of frauds at the polls, and the fruits of illegal and evil practices on the part of his 
 partisan friends. His present certificate is alleged to have been induced and procured by the same 
 methods in repetition, with perhaps some variations and aggravations. 
 
 If this is so, it would seem that there is, as charged, a settled determination on the part of the evil- 
 disposed persons therein that no candidate of the dominant party in the district in question shall be 
 counted in and get the certificate in any event. 
 
 A brief statement of some of the main facts alleged will suffice: 
 
 A contest was regularly instituted under the said acts of Congress, and the sitting Member has served 
 an answer to the same, so that the contest is now pending. The ninety days allowed for the taking of the 
 evidence will extend beyond the 4th day of March next. 
 
 The sitting Member was declared elected on the strength of a vote returned of only 6,752, whereas 
 the claim is that he did not in tnith and in fact get over about 5,000 votes. Contestant was declared and 
 returned to the State board of canvassers as having received only 4,811, whereas he in truth and in fact 
 received over 15,000 votes, which were legally cast, counted, and returned to the boards of county can- 
 vassers, but 10,000 of which were there counted out either for no assignable reason or because of certain 
 pretended informalities in the returns and upon frivolous objections which were resorted to only as 
 pretexts in an earnest search for some real or plausible excuse. There are other charges of fraud of a more 
 heinous character, which deprived contestant of many votes in the original returns; but laying those 
 aside and taking the returns as made from the voting precincts to the county boards the contestant is 
 said to have been elected by about G,000 majority; the reports of the United States supervisors give him 
 about that majority, as would appear by certified-copies furnished the committee. It will appear that 
 the vote of the sitting Member (6,752) is less than one-third of the votes cast for both candidates according 
 to the precinct returns. It is less than one-third of the votes cast in prior elections in the same district 
 for Members of Congress, as appears by the history of those elections as read from the records of this House. 
 It is less than one-fourth of the voting population of the district, aa appears by the last census, and as 
 shown in the last prior contest alluded to. 
 
 ^ Second session Forty-seventh Congress, House Report No. 1886; 2 Ellsworth, p. 081.
 
 924 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 714 
 
 The committee refer to what was proven in the prior contest for this seat, and 
 conclude that it is due to the honest electors of the country to expedite the hearing. 
 Accordingly the majority recommended the following resolution: 
 
 Whereas John W. Jones claims to have been elected as Representative from the Fourth Congressional 
 district of Alabama, to fill a vacancy, and has instituted proceedings for a contest under the provisions of 
 the acts of Congress relating to contested elections; and whereas there is not sufficient time to prosecute 
 and conclude said contest under the provisions of said acts and in course before the expiration of the 
 present term of Congress, and the contest must be abandoned unless some other more speedy mode of 
 procedure be prescribed : Therefore, 
 
 Resolved, That a special committee, composed of three Members of the Committee on Elections, 
 be appointed, witli authority, and whose duty it shall be to proceed, without unnecessary delay, to the 
 Fourth Congressional district of Alabama, and there take the evidence which may be adduced by either 
 party in the matter of the pending contest, and report the same to the House as soon as may be. That 
 the committee appointed is empowered to send for persons and papers and administer oaths, and also to 
 employ stenographers, messengers, and a sufficient clerical force, at the usual compensation, the expenses 
 to be paid out of the contingent funds of the House, upon the approval of the chairman of said committee. 
 
 The minority views, presented by Mr. F. E. Beltzhoover, of Pennsylvania, 
 contended that the contestant, by beginning his testimony thirty days earlier, 
 might have expedited his case; that the committee would not have time to take the 
 evidence satisfactorily; that contestant's party had manipulated the returns 
 fraudulently, and concluded that the ordinary modes should not be departed from 
 on such insufficient cause shown. They say : 
 
 The report of the majority of the Committee on Elections recommending that a special committee 
 be created with indefinite and arbitrary powers is as positive and dogmatic in its findings as if they were 
 sustained by facts. The report rests solely on the mere ex parte statement, not under oath, of the memo- 
 rialist, whom the contestee contradicts in every material allegation. What evidence is there in this 
 memorial which any court would regard of the slightest weight? No chancellor would grant any relief 
 on it without some verification of its allegations. No Committee of Elections or House of Representa- 
 tives on such statements alone have ever characterized the citizens and sworn officers of any Congressional 
 district as "evil-disposed persons," etc. No committee has ever based a finding on the fact that the 
 returned candidate had received less than one-third of the votes cast at the previous elections or less than 
 the voting population of the district. This kind of evidence, which is always incompetent, is still more 
 unreliable when it is remembered that in this instance the election was to fill a vancancy of only a few 
 months, and there was no general interest taken in the result, and no reason for a full vote being cast. 
 But in order to support their report, the majority resort to "all advices which they get from reputable and 
 honorable men of the district and who appear to be cognizant of the facts." What are these "advices?" 
 Who are they from? Is Congress to solemnly adjudicate upon the right of a Member to a seat on the 
 hearsay and rumor which Members gather in their private communications with persons unknown and 
 unsworn and of whom and of which there is no public or verified knowledge? 
 
 The majority of the Committee on Elections further bolster their remarkable report by saying 
 "that the facts alleged in the memorial, confirmed and rendered highly probab'e as they are by other 
 well-known facts and from other sources outside, entitle the contestant to the relief which he asks," etc. 
 
 On January 25 * the minority obtained leave to withdraw their views in order to 
 make some additions to it. 
 
 Thereafter the subject does not seem to have again been taken up by the House. 
 
 I 
 
 ' Record, p. 1580; Journal, p. 305.
 
 § 715 TESTIMONY IN CONTESTED ELECTIONS. 925 
 
 715. The Missouri election case of Coudrey v. Wood, in the Fifty- 
 ninth Congress. 
 
 Testimony in an election case being impeached by ex parte affidavits, 
 the House gave the Elections Committee authority to send for persons 
 and papers in order to investigate as to the integrity of the record. 
 
 On February 1, 1906/ Mr. Marlin E. Olmsted, of Pennsylvania, presented, as a 
 pri-rileged matter, the follo^ving resolution reported from the Committee on Elections 
 No. 2: 
 
 Whereas in the contested election case of Coudrey v. Wood, from the Twelfth Congressional district 
 of Missouri, which was referred to the Committee on Elections No. 2, a motion has been made to sup- 
 press the testimony of contestant on the ground, among others, that as forwarded to the Clerk of the 
 House and printed it is not the testimony as given by the witnesses, but has been materially altered by 
 leaving out certain parts thereof and by adding to and changing other parts so as to completely destroy 
 the int^:rity of said testimony; and 
 
 Whereas, owing to the conflicting statements contained in ex parte affidavits filed in support of and 
 in opposition to said motion, it is impossible to ascertain the truth of the matter: Therefore, be it 
 
 Resolved by the House of Representatives, That Committee on Elections No. 2 shall be, and is hereby, 
 authorized and empowered to take such testimony as it shall deem necessary to the determination of 
 questions of fact in the contested election case of Coudrey v. Wood, from the Twelfth district of Missouri, 
 and shall have power to send for all such persons and papers as it may find necessarj- for the proper 
 determination of said controversy and determine the time, place, and manner of taking said 
 testimony, which may be taken before the said committee or any subcommittee or any person selected 
 by said committee for such purpose, and that the expenses incurred in taking said testimony shall be 
 paid from the contingent fund of the House upon the order of .said Committee on Elections No. 2. 
 
 The resolution was agreed to without division. 
 In explanation, Mr. Olmsted said: 
 
 Mr. Speaker, the testimony in this case, as printed in a volume of 1,409 pages, has been submitted 
 by the Clerk of the House to the committee, and also the originals from which the said publication was 
 made. Upon the face of these papers the testimony appears to have been regularly taken, signed by the 
 witnesses, and certified by the notaries public before whom it was taken, and to be regular in everv 
 respect. But the contestee has submitted a motion to suppress all the contestant's testimony for various 
 reasons, most of which are technical, but one of which seems to the committee to be of importance, 
 namely: That the testimony as returned to Washington and printed by the Clerk is not the testimony 
 given by the witnesses, but that the same has been altered, some parts omitted, some things added, and 
 some portions changed. There have been submitted ex parte affidavits of two stenographers who took 
 the testimony, who state that under instructions of a certain gentleman they changed certain portions of 
 the testimony. That gentleman makes affidavit denj-ing tneir statements. The affidavits of ten wit- 
 nesses were filed to the effect that when unon the witness stand they were cross-examined, but no cross- 
 examination appears in the report of their testimony. Against that there is the affidavit of a female 
 stenographer, who says that under the direction of the contestee she prepared a uniform style of affidavit — 
 blank forma — in which these ten are all made, and that the persons who made them received small simis 
 of money for making these affidavits. 
 
 That is denied in another affidavit on behalf of the contestee. Other ex parte affidavits of stenog- 
 raphers have been submitted to the effect that the contestee offered the affiants money to make false 
 affidavits to the effect that the testimony as taken down by them had been changed. On the other 
 hand, there are affidavits to the effect that the stenographers who made those affida\'its offered to make 
 affidavits on behalf of contestee, but demanded money for so doing. There is some testimony tending to 
 
 ' First session Fifty-ninth Congress, Record, pp. 1891, 1892.
 
 926 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. •§ 716 
 
 show that the contestee brought suit against certain persons for the purpose of coercing them and getting 
 them to make affidavits; and one lady says, to use her own language, "He frightened me to death," after 
 which she made an affidavit. There is also the testimony of one stenographer that under instructions he 
 changed in various respects answers from "no" to "yes" in material parts of the testimony. 
 
 To make a long story short, these ex parte affidavits are so utterly conflicting in their character 
 that it is impossible from them to ascertain the truth of the matter, and, believing it important that the 
 question of the integrity of this testimony shall at the outset be determined, the committee has 
 unanimously agreed to recommend the adoption of the resolution which has been read from the Clerk's 
 desk. 
 
 On June 23, 1906/ Mr. Olmsted presented the report of the committee, which, 
 without assigning reasons, recommended the following resolutions, which were 
 agreed to by the House without debate or division: 
 
 Resolved, That Ernest E. Wood was not elected to membership in the House of Representatives 
 of the United States in the Fifty-ninth Congress and is not entitled to a seat therein. 
 
 Resolved, That Harry M. Coudrey was elected to membership in the House of Representatives 
 of the United States in the Fifty-ninth Congress and is entitled to a seat therein. 
 
 716. The Missouri election case of Knox v. Blair, in the Thirty-eighth 
 Congress. 
 
 Instance wherein the returned Member presented evidence taken 
 after the time prescribed by law and asked the House to consider it. 
 
 The House received but prevented the use of testimony taken in an 
 election case in disregard of the law. 
 
 On March 11, 1864,^ Mr. F. P. Blair, jr., of Missouri, as a qiiestion of privilege, 
 presented testimony taken by himself, after the time limited by law, in the case of 
 Samuel Knox, contestant, to the right of ]\Ir. Blair to his seat; and Mr. Blair further 
 moved that the evidence be referred to the Committee of Elections, to be considered 
 by the committee with other evidence before the committee taken after the time 
 provided by law. 
 
 It was stated that the testimony in question was not strictly ex parte, as the 
 contestant had been notified so that he might be present, but it was taken without 
 authority of law. 
 
 After debate the House, on motion of Mr. Thaddeus Stevens, of Pennsylvania, 
 amended the motion by adding: 
 
 Provided, That this resolution shall refer only to affidavits or depositions, and that all such illegally 
 taken shall not be considered by the committee. 
 
 The motion as amended was then agreed to. 
 
 On May 5, when the committee reported,^ they stated that they had not 
 considered the testimony referred on motion of Mr. Blair, as the terms of the 
 reference precluded such consideration. 
 
 717. The first rule for the examination of an election contest before 
 the Elections Committee. 
 
 The right of contestee to cross-examine and present testimony was 
 conceded in the first election case. 
 
 ' Record, p. 9036; House Report No. 4999. 
 
 2 First session Thirty-eighth Congress, Journal, p. 372; Globe, p. 1058. 
 
 ^ House Report No. 66, pp. 3 and 4.
 
 § 718 TESTIMONY IN CONTESTED ELECTIONS. 927 
 
 In the first contested election case decided in the House, that of David 
 Ramsay v. WilHam Smith, of South Carolina, the Committee on Elections reported 
 and the House adopted a resolution directing the course of procedure before the 
 cormnittee. This resolution, reported April 18, 1789,^ provided that the com- 
 mittee take proofs, and that " Mr. Smith be permitted to be present, from time to 
 time, when such proofs are taken, to examine the witnesses, and to offer counter 
 proofs, which shall also be received by the committee, and reported to the House." 
 
 718. Illustration of a rule prescribed by the House for taking testi- 
 mony in an election case before the enactment of a law prescribing a 
 method. — On January 23, 1850," on report from the Committee on Elections, the 
 House agreed to the following: 
 
 Resolved, That the parties to the contested election from the First Congressional district of the 
 State of Iowa be, and they are hereby, authorized to take the testimony of such witnesses as either of 
 them may require, by depositions in conformity with the laws of the State of Iowa in force at the time 
 of taking the testimony, before any judge of the supreme court or of the district courts of said State, 
 who are hereby empowered to take depositions in any part of said State, or before a clerk or clerks of 
 any of the district courts, or before any notary public, or before any justice of the peace of the said 
 State within the county in which such clerk, or notary- public, or justice of the peace may reside: Fro- 
 vidiruj, That notice of the time and place of taking the depositions shall be given by the party taking 
 the same to the opposing party, or his attorney, at least ten days prior to taking the same, and one day 
 in addition for every thirty mUes' travel from the place of taking the depositions to the place of residence 
 of the person receiving the notice, or to the place where he may be when notice shall be received by 
 him, if not received at his place of residence: Provided, aha, That the parties may, by agreement in 
 writing, regulate the mode of giving notice: Provided, also, That when such depositions shall have been 
 taken they shall, together with the agreements and notice aforesaid, be sealed up by the officer taking 
 the same and be directed to the Speaker of the House: Arid provided further, That all the testimony in 
 the case, to be taken or presented by either party, shall be returned to this House within one hundred 
 days from the passage of this resolution. 
 
 On January 29^ the House agreed to a similar but not identical resolution 
 prescribing the method of taking testimony in the Pennsylvania contested-election 
 case. 
 
 At the next session of this Congress * a law was enacted prescribing the mode 
 of taking testimony, one object being to prevent delay in the presentation of cases.* 
 
 719. The South Carolina election case of Stolbrand v. Aiken in the 
 Forty-seventh Congress. 
 
 Instance wherein the House dismissed an election case because the 
 testimony was taken before an oflacer not specified by law. 
 
 Wliile not bound by the law governing procedure in election cases, 
 the House does not unnecessarily disregard them. 
 
 On April 6, 1882," Mr. G. W. Jones, of Texas, from the Conunittee on Elections, 
 submitted the following report in the South Carolina case of Stolbrand v. Aiken: 
 
 All the testimony in the case was taken in behalf of the contestant before E. W. Stoeber, United 
 States commissioner. The contestee, at the threshold, excepted to the competency of the officer. 
 
 ' First session First Congress, Contested Elections in Congress from 1789 to 1834, pp. 23, 24. 
 - First session Thirty-first Congress, Journal, pp. 393. 394. 
 ^Journal, p. 426. 
 
 * Second session Thirty-first Congress, Journal, p. 324; Globe, p. 110. 
 
 'This law, known as the law of 1851, is the foundation of the present system as to election con- 
 tests. 
 
 " First session Forty-seventh Congress, House Report No. 932; 2 Ellsworth, p. G03.
 
 928 
 
 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 § 720 
 
 The following are the statutory provisions applicable to the question raised by the exception. 
 
 Revised Statutes, page 19: 
 
 " Sec. 110. When any contestant or returned Member is desirous of obtaining testimony respecting 
 a contested election, he may apply for a subpoena to either of the following officers who may reside 
 within the Congressional district in which the election to be contested was held: 
 
 " First. Any judge of any court of the United States. 
 
 "Second. Any chancellor, judge, or justice of a court of record in the United States. 
 
 "Third. Any mayor, recorder, or intendent of any town or city. 
 
 "Fourth. Any register in bankruptcy or notary public. 
 
 "Sec. 111. The officer to whom the application authorized by the preceding section is made shall 
 thereupon issue his writ of subpoena, directed to all such witnesses as shall be named to him, requiring 
 their attendance before him at some time and place named in the subpoena, in order to be examined 
 respecting the contested election. 
 
 "Sec. 112. In case none of the officers mentioned in section one hundred and ten are residing in 
 the Congressional district from which the election is proposed to be contested, the application thereby 
 authorized may be made to any two justices of the peace residing within the district; and they may 
 receive such application and jointly proceed upon it. 
 
 "Sec. 113. It shall be competent for the parties, their agents or attorneys authorized to act in the 
 premises, by consent in writing, to take depositions without notice; also, by such written consent, to 
 take depositions (whether upon or without notice) before any officer or officers authorized to take depo- 
 sitions in common law, or civil actions, or in chancery, by either the laws of the United States or of 
 the State in which the same may be taken, and to waive proof of the official character of such officer 
 or officers. Any written consent given as aforesaid shall be returned with the depositions." 
 
 The officers authorized to take testimony are specially designated. It is, however, specially 
 provided that "by written consent" testimony may be taken before certain other officers mentioned. 
 United States commissioners are not mentioned in the first class, and, if included in the latter, can not 
 act without the written consent of the parties. 
 
 It is apparent that the exception is well taken and must be sustained. 
 
 It is insisted that the House of Representatives, in judging of the elections, qualifications, and 
 retiu-ns of its Members, is not bound by the rigid rules of judicial procedure. This is true, but applies 
 only to exceptional cases, not provided for by the "rules prescribed." It would be worse than idle to 
 prescribe rules if they may be willfully and unnecessarily disregarded. 
 
 This view is decisive of the case and renders unnecessary further statement of it. 
 
 We recommend the adoption of the following resolution: 
 
 Resolved, That C. J. Stolbrand have leave to withdraw his papers. 
 
 The resolution was agreed to without division or debate.* 
 
 720. The Alabama election case of Goodwyn v. Cobb in the Fifty- 
 fourth Congress. 
 
 A question as to the validity in an election case of testimony taken 
 before a notary public outside the county in which he was empowered to 
 act. 
 
 A question as to the introduction during an election case of evidence 
 in chief during time of rebuttal. 
 
 The official certificate of a State officer giving the returns may be 
 introduced at any stage of the proof in an election case. 
 
 A question as to whether certain copies of election papers certified to 
 by public officers were actually evidence or not. 
 
 Discussion as to the effect of an alleged unconstitutional registration 
 law in an election case. 
 
 ' Journal, p. 989.
 
 § 720 TESTIMONY IN CONTESTED ELECTIONS. 929 
 
 On April 4, 1896,' the Committee on Elections No. 1 reported in the case of 
 Goodwyn v. Cobb, from Alabama. This case involved, besides the merits, certain 
 preliminary questions: 
 
 (1) The sitting Member, sustained by the minority of the committee, urged 
 that a notary public might not take testimony in a county other than that in which 
 he was empowered to act by the law of the State. The majority of the conmiittee 
 overruled the objections on the same grounds that were adduced in the case of 
 Aldrich V. Bobbins. 
 
 (2) The sitting Member, sustained by the minority of the committee, objected 
 that important testimony was taken in Montgomery County before a notary public 
 who resided in another Congressional district, whereas the laws of the United States 
 confined the power to take testimony to an officer who resides in the district of the 
 witness. The majority of the committee admit: 
 
 The notarj' should not have taken evidence beyond the limits of the * * * district without 
 consent. But as to the five witnesses whose testimony was taken in Montgomery County, the objection 
 of want of authority was only made to the witness Lynch, and his evidence has not been considered on 
 this occasion. As to the others, the absence of objection warrants the inference of consent, and their 
 evidence is legally before the House. 
 
 (3) It was objected on the part of the sitting Member that during the time 
 allowed the contestant under the law for rebuttal only he had introduced evidence 
 in chief. The minority of the committee contended that this evidence, alleged to 
 be introduced improperly, was of great importance, and that the case of the con- 
 testant depended on it. The majority of the committee overnded this objection 
 for reasons as follows: 
 
 (a) A portion of this evidence in question was introduced to show that persons 
 whose names were on the poll list did not in fact vote. The minority objected that 
 this constituted a case where the trial court made up its judgment on rebuttal evi- 
 dence, entirely cutting off from hearing the party against whom the judgment was 
 rendered. The majority of the committee, on the other hand, declare that "similar 
 proof had been previously taken, and there can be no reason for supposing that the 
 contestee, Mr. Cobb, was specially prejudiced by the order of tliis evidence, for it 
 seems to have been beyond his power of contradiction." In debate it was further 
 explained that he could have rebutted it only by the election officials and the returns, 
 which were already discredited. - 
 
 (&) A second portion of this evidence in chief taken during the time for rebuttal 
 testimony only was the certificate of the secretary of state as to the officially returned 
 vote of the district. The minority objected that this was a "s-ital part of the case, 
 and that it was improperly presented at this time. The majority of the committee 
 insisted ' that where papers of this kind were introduced it was a matter of no con- 
 sequence where they were introduced as to the order of proof, quoting in support of 
 this principle the case of Vallandigham v. Campbell. 
 
 ' First session Fifty-fourth Congress, House Report No. 119,2. 
 2 Record, p. 4239. 
 'Record, p. 4237. 
 
 5994— VOL 1—07 59
 
 930 PBECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 720 
 
 (4) The contestant had introduced as evidence the copies of the registration 
 lists and the poll lists certified by the judges of probate of the respective counties. 
 The sitting Member objected that the registration copies were no more than copies 
 of copies, and that the probate judges had no power to certify the copies of regis- 
 tration and poll lists so as to make them evidence. The law of Alabama required 
 the registrars to forward true copies of their lists to the judge of probate of the 
 county, who, from such lists, was required to make a correct alphabetical list of the 
 voters so registered, by precincts and wards, and certify copies of these alphabetical 
 lists to the precinct inspectors for use on election day. The majority of the com- 
 mittee find that when the judge of probate "certified to a copy of that registration 
 list it was to a copy of his own list, which remains in his office as a part of its per- 
 manent papers or records." The committee quote the law of Alabama which make 
 "presumptive evidence in any civil cause" of bonds, instruments, or papers "required 
 to be kept by any sworn officer of the State." The sitting Member denied the per- 
 tinency of this section because the law had not declared that the list should be kept 
 in the office of the judge of probate. But the committee ruled that an express 
 direction to that effect was not necessary, it being sufficient that the statute by 
 implication contemplated that one of the lists should remain in the office. For 
 the law provided for the probate judge to deliver to the inspectors one of the lists 
 made by him, and as no other disposition had been made of the other, it must remain 
 where it was found, and that was in the custody and office of the probate judge as 
 one of the public papers or records. The inspectors of election were also required 
 to send the poll list of the election to the judge of probate, for the obvious reason 
 that it was to be the basis of the final and official canvass of the votes; and that in 
 like manner became a paper, in the language of the statute, to be kept in his office, 
 and a copy of wliich he could make presumptive evidence by his official certificate. 
 
 (5) A certified statement of the secretary of state as to the final result of the 
 canvass was objected to for the same reason, that the secretary of state was without 
 authority to make the certificate evidence. The committee, however, overrule this 
 objection on the ground that "it is the manifest purpose of the law that all these 
 returns [which are forwarded to the secretary of state in requirement of law] shall 
 become records in these public offices, to be preserved and maintained as evidence 
 of the titles of the various officers found to be elected; and as such the certificate of 
 the custodian thereof that it is a true copy of the original has the same legal effect as 
 if the original were produced and proved." 
 
 (6) It was urged by the sitting Member that the secretary of state's certificate 
 was formally defective, and that, after the committee had caused the contestant to 
 procure certain transcripts from the secretary of state, the fact was made apparent 
 that the vote of one whole county should have been disregarded because the returns 
 were not signed by all the board of supervising canvassers. Therefore the minority 
 of the committee held that the sitting Member should have been allowed to go into 
 an examination of the votes behind this county return, if the whole return was not 
 to be excluded. The majority of the committee held that the objection to the 
 original certificate did not require its exclusion; and that, being record evidence, it 
 was competent for the committee to have produced further and more formal state- 
 ments to correct informalities in the proof previously made. The committee further
 
 § 721 TESTIMONY IN CONTESTED ELECTIONS, 931 
 
 found that the county returns which were not signed by all the board of canvassers, 
 were yet sufficient, since they were signed by a majority. 
 
 (7) The sitting Member objected that the registration law of Alabama was 
 unconstitutional, and therefore that the evidence touching the registration, on which 
 contestant much relied, should be suppressed. Wliile the majority of the committee 
 do not in express terms admit the unconstitutionality of the law, yet it seems evident 
 that the registration law required the completion of the lists of each precinct about 
 five months before election day, whereas the constitution provided that the legis- 
 lature should not require a residence of longer than three months in the precinct. 
 The law prohibited the voting of any person not registered, imless he should become 
 21 years of age after the completion of the registration. The committee make the 
 point that the prohibition could therefore affect only persons becoming residents 
 after the close of the registration and before the beginning of the three months before 
 election; and that the testimony failed to show any such persons as affected. In 
 the debate' it was urged that the constitutional question was of no effect, since the 
 only use of the lists was to determine who were legal and honest voters, and for this 
 purpose it was not essential to determine the constitutionality of the law. 
 
 (8) An objection by the minority of the committee that certain testimony 
 came before the committee without proper certificate of the notary public before 
 whom it was taken, was in the debate,' shoAvn to be based on a mistaken readino' of 
 the record of the case. Such certificate did in fact exist. 
 
 721. Election case of Goodwin v. Cobb, continued. 
 
 The returns of a county being wholly unreliable, and the conduct of 
 the election unfair, the returns were rejected. 
 
 Certain votes in a county being' evidently cast, were counted accord- 
 ing to the known opinions to the voters, although there was evidence gen- 
 erally of great frauds. 
 
 Unfair representation on the election board of a precinct and disorder 
 at the polls were held not to justify rejection of the return of the precinct. 
 
 Passing from the preliminary questions to the merits of the case, it appeared 
 that the corrected official returns gave to the sitting Member a majority of 508 votes. 
 The majority of the committee held — though not with the assent of the minority — 
 that three of the nine coimties of the district were distinctively "black" counties, 
 inhabited largely by colored voters, and that the remaining six counties were dis- 
 tinctively "white" counties. The returns from the so-called white counties gave 
 contestant a majority of .3,612 votes, while the majority for sitting Member in the 
 three "black" counties was sufficient to overcome the majority for contestant in 
 the "white" counties and give to sitting Member a majority of 508 in the district. 
 
 The contestant attached the returns of twelve precincts in the "black" coun- 
 ties, claiming that they were false and fraudulent, and that they returned a much 
 larger number of fraudulent votes than the majority reported for the contestee. 
 
 The majority of the committee, as the result of their examination of the testi- 
 mony relating to the twelve precincts, rejected entirely the polls of five of them 
 reduced the return for the sitting Member in six of them, and in one precinct 
 allowed the return to stand as made. 
 
 ' Record, p. 4219.
 
 932 PKECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 722 
 
 (1) As to the five rejected polls, it appeared to the committee that the returns 
 were so false and unreliable that there was no way of determining the actual vote. 
 In three of these precincts the contestant had no representatives at all on the boards 
 of election officers, and in the others his representatives were incompetent. The 
 poll lists showed many more voters than were seen to go to the voting places; in 
 one precinct names had been added to the registration lists to an extent manifestly 
 absurd; men appeared as voters whose names were not known in the precinct, and 
 who could not be found by an officer with a subpoena; others appeared as voting 
 who testified that they did not vote, and some men who appeared as voting were 
 shown to be dead. 
 
 (2) In six precincts there was evidence generally of great frauds, but the testi- 
 mony in most of them indicated that a certain number of men, generally known to 
 be Democrats, had actually voted. Therefore the majority of the committee 
 assumed that these had voted for the sitting Member and allowed them on his poll, 
 striking off the fraudulent surplus. 
 
 (3) In one precinct. Day's Beat No. 5, the contestant had no representative on 
 the election board and the proceedings were disorderly in the extreme. "But these 
 facts," say the committee, "alone will not justify a reduction in the vote, although 
 there is a probability that it was not genuine." 
 
 In all these precincts the minority denied the sufficiency of the testimony to 
 produce the results reached by the majority. 
 
 On April 21 and 22' the resolutions of the committee, unseating the sitting 
 Member and seating the contestant, were debated and a decision was reached. By a 
 vote of ayes 47, noes 109, the proposition of the minority to confirm the title of the 
 sitting Member was disagreed to. Then by a vote of yeas 60, noes 1.31, the House 
 disagreed to a motion to recommit the report with instructions to the Committee on 
 Elections "to report a resolution authorizing the contestee to take further testi- 
 mony in rebuttal of evidence in the record taken by contestant, which is evidence ia 
 chief, during the last period of ten days in which testimony was taken." 
 
 The resolution declaring sitting Member not entitled to his seat was agreed to 
 without division. 
 
 Then, on April 22, the resolution seating the contestant was agreed to — yeas 
 145, nays 55. The oath was then administered to Mr. Goodwyn. 
 
 722. The Pennsylvania election case of Hudson v. McAleer in the 
 Eifty-fifth Congress. 
 
 A contestant may not be granted more time to take testimony on 
 the mere declaration, without proof, that he has been impeded by violence 
 from procuring evidence. 
 
 To procure an extension of time for taking testimony a contestant 
 should show that the testimony is newly discovered. 
 
 On February 5, 1898,' Mr. Lemuel W. Royse, of Indiana, from the Committee 
 on Elections No. 2 presented a report in the Pennsylvania case of Hudson v. 
 
 'Journal, pp. 413, 414, 417; Record, pp. 4217-4243, 4271. 
 
 'Second eession Fifty-fifth Congress, House Report No. 354; Rowell's Digest, p. 558; Journal, p. 173.
 
 § 723 TESTIMONY IN CONTESTED ELECTIONS. 933 
 
 McAleer. The contestant had received a small minority of the votes cast at the 
 election, according to the official returns. The committee summarize the question 
 presented to the House as follows: 
 
 On the 3d of December, 189ti, contestant ser\-ed upon contestee his notice of contest, and on the 
 Slst of the same month contestee served on the contestant his answer to said notice. 
 
 On the 19th and 20th of January, 1897, testimony was taken on behalf of contestant, when the 
 taking of further testimony was abandoned on the grounds, as alleged by the contestant, that he was 
 prevented from proceeding further because of the riotous and violent conduct of certain citizens of the 
 district. 
 
 Contestant comes before your committee and asks for further time in which to take testimony in 
 support of his notice of contest, and that a subcommittee be sent to said district for the purpose of pro- 
 curing said further testimony. In support of said motion he files with us his own affidavit, in which he 
 sets forth various irregularities and frauds in the holding of said election, and in counting the votes, and 
 in making returns thereof, and that witnesses and other evidence can be procured which sustain all 
 these charges. 
 
 It is nowhere averred in the affidavit that these facts and the evidence to sustain them have been 
 discovered since the time provided by the statute for taking testimony has expired. On the contrary, 
 the affidavit carries upon its face a very strong inference that all these facts were known to the contestant 
 at the time he filed his notice of contest, and that all his evidence tending to support the same was then 
 known and accessible to him. 
 
 As we understand contestant's application, it is not based upon the ground that the evidence he 
 now desires leave to take has been discovered since the time expired, but upon the reason that he made 
 every possible effort to procure it, but was prevented by the riotous and violent behavior of certain citi- 
 zens of the district at the place where he was compelled to take the same. 
 
 If such a case were made out, we would have no hesitancy in recommending that contestant's 
 application be granted. The honest election of each Member of this House is a matter of the highest 
 importance, both to this body and to the people at large. When a question is raised as to the election 
 of one of its Members, this House should stand ready to make a thorough investigation, and promptly 
 expel the Member whose seat was obtained by fraudulent or dishonest methods. No one should he 
 permitted to prevent or impede such investigation. Any attempt of this kind should be promptly 
 and vigorously rebuked. It can not be assumed that such an investigation has been hindered or pre- 
 vented. Until the contrary appears, it must be presumed that the authority of Congress and the 
 agencies provided to make such inquiry have been respected and obeyed. 
 
 If contestant has been prevented by riot and violence from procuring his testimony, such fact 
 should be shown in some satisfactory way, and that contestant was in no way to blame for it. Upon 
 this subject the affidavit is entirely silent. We are furnished no proof of this but the unsworn statement 
 of contestant's counsel, which is denied by counsel for contestee; and we do not feel that this is suffi- 
 cient. We therefore recommend that the application to take further testimony be denied. Contestant 
 admitted before the committee that he was not elected to the Fifty-fifth Congress from this district. 
 The utmost of his contention was that contestee also was not elected. It is not insisted by contestant 
 that this is shown by the evidence already taken; and even if it were we could not agree with him. 
 
 The committee therefore recommended resolutions declaring the sitting Mem- 
 ber elected and entitled to his seat, and the same were agreed to by the House 
 without debate or division. 
 
 723. The Pennsylvania election case of Kline v. Myers in the Thirty- 
 eighth Congress. 
 
 It was held in 1864, although by a divided committee, that a con- 
 testant must show probable fraud in order to have the House order a 
 recount of votes.
 
 934 
 
 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. 
 
 § 723 
 
 On June 22, 1864,' the Committee on Elections reported in the case of Kline 
 V. Myers, of Pennsylvania. The committee recommended resolutions declaring 
 contestant not entitled to the seat and declaring Mr. Myers entitled to the seat. 
 
 The committee make this statement of facts and reasons — 
 
 The contestant, by his own acknowledgment, has failed to substantiate the specifications or charges 
 contained in his notice of contest by any evidence he has lieen able to lay before the committee, and 
 it is therefore unnecessary to make any statement of the facts in the case. He, however, furnishes 
 satisfactory evidence that he had made an unsuccessful effort to procure a recount of the ballots within 
 the sixty days allowed for the taking of depositions, and before the officers selected for that piupose. 
 And upon his showing this fact, and upon his further suggestion that the result of a recount might 
 possibly differ from the first, he bases an application for an order from this House to send for the boxes 
 and recount the votes. 
 
 The committee were of the opinion that such an application should be founded upon some proof, 
 sufficient, at least, to raise a presumption of mistake, irregularity, or fraud in the original count, and 
 ought not to be granted upon the mere suggestion of possible error. The contestant failed to furnish 
 such proof. On the contrary, so far as appeared by the evidence presented to the committee, the 
 election was conducted with perfect good order and fairness throughout the day, and at the close the 
 votes were carefully and accurately counted, the officers participating therein being nearly equally 
 divided in their political alliances. The list of voters, tally papers, and returns were properly made 
 out and disposed of according to law. There is nowhere in the evidence a reasonable suspicion of 
 wrong. To adopt a nJe that the ballot boxes should be opened upon the mere request of the defeated 
 candidate would occasion more fraud than it could possibly expose. 
 
 It should be remembered that the fact sought b not what the ballot boxes contain six months 
 or a year after the election, but what they did contain after the last vote was deposited on the day of 
 election. Certainly an impartial, accurate, and public count, then, by the sworn officers of the law, 
 would be better evidence of that fact than any subsequent count not more impartial and not presumed 
 to be more accurate than the first, and after boxes had been long exposed to the tampering of dishonest 
 partisans. The adoption of such a practice would be equivalent to setting aside the first count altogether, 
 and it ought on that principle to be dispensed with, and the ballots sent to this house instead of 
 certificates. 
 
 The rule adopted by the committee is in accordance with the universal practice of courts of 
 justice, where a new trial or a rehearing is never granted except upon proof of probable error in the 
 first, in accordance with the rulings in several contested election cases decided in the courts of the State 
 from which this contest comes, and believed not to be in conflict with anj' precedent of this House. 
 
 Messrs. Henry L. Dawes, of Massachusetts, and Charles Upson, of Michigan, 
 at the time the report was made^ announced that they did not concur with the 
 majority of the committee in the ruling by which the contestant was denied process 
 to summon witnesses to prove certain allegations, but that they were of opinion 
 that when a party had confined his allegations to the statute he was entitled, as 
 of right, to the production of any legal testimony that would tend to prove such 
 allegations. Neither the law nor the usage of the House required him to first show 
 probable cause to believe that his allegations were true. 
 
 On June 24, 1864,^ the House considered the report and agreed to it without 
 division, although in debate there was dissent from the decision of the committee 
 denying the contestant the right to have the boxes opened, the only means whereby 
 fraud could be proven. 
 
 > First session Thirty-eighth Congress, House Report No. 127; 1 Bartlett, p. 574; Rowell's Digest, 
 p. 196. 
 
 = Globe, p. 3179. 
 
 3 Journal, p. 891; Globe, p. 3242.
 
 § 724 TESTIMONY IN CONTESTED ELECTIONS. 935 
 
 724. The Virginia election case of Hoge v. Otey in the Pifty-fourth 
 Congress. 
 
 No suflacient reasons being shown, the House declined to reopen an 
 election case for the taking of further testimony. 
 
 On April 29, 1896,* Mr. David A. De Armond, of Missouri, from the Committee 
 on Elections No. 3, submitted the following report in the case of Hoge v. Otey, 
 from Virginia: 
 
 According to the returns, contestee received 2,346 more votes than contestant. 
 
 The record contains but a few pages of testimony, and it would be impossible to give to such 
 testimony any effect by which the seat in controversy could be awarded to the contestant or could be 
 taken from the contestee. 
 
 Contestant has asked that the case be opened for the taking of further testimony, but he has failed 
 to show any sufficient reason for such course. Not only is there no apparent rea-son for making an 
 exception in this case to a fair and long-established statutory rule fixing the time for the taking of 
 testimony in contested election cases, but, from contestant's own showing, it appears that if the case 
 were opened the result of the contest would not be different. 
 
 Accordingly, the usual resolutions confirming sitting Member's title to the seat 
 were presented, and, on May 15,' were agreed to by the House. 
 
 725. The Alabama election case of Mabson v. Gates in the Forty- 
 seventh Congress. 
 
 The appeal of a contestant for extension of time to take testimony 
 should show that all diligence has already been used in the quest. 
 
 Review of the precedents governing the granting of extension of time 
 to the parties to collect evidence in an election case. 
 
 An application for extension of time to take testimony in an election 
 case should be accompanied by an affidavit specifying as to the testimony. 
 
 The Elections Committee declined in 1882 to reopen a case to enable a 
 contestant to correct his procedure. 
 
 On April 7, 1882,^ Mr. William H. Calkins, of Indiana, from the Conunittee 
 on Elections, submitted the report of the majority of the committee in the Alabama 
 case of Mabson v. Oates. 
 
 This case was examined first by a subcommittee, and the report of this sub- 
 committee, which was presented to the full committee by Mr. Gibson Atherton, of 
 Ohio, narrated the steps taken by contestant to get evidence and the reasons given 
 by him for asking an extension of time ; and then gives reasons for not granting the 
 extension : 
 
 The first question presented for consideration is the preliminary one of granting time to the con- 
 testant to take further testimony, or of appointing a commission to take the same. 
 
 Touching the first proposition, has the contestant shown such degree of diligence as to induce the 
 House, under well-established precedents, to grant an extension of time; or has he been guilty of such 
 want of diligence that his application should be denied? In the report of the contested election case 
 of Boles V. Edwards, prepared by Mr. Hazelton, it is said: 
 
 "To say nothing of the terras of the law * * * touching the extending of the time fixed to 
 allow supplementary evidence, which clearly relates to cases in which the applicant has taken some 
 evidence — that is to say, has made some use of the time given him — the policy of the House has been 
 
 ' First session Fifty-fourth Congress, House Report No. 1530; Rowell's Digest, p. 537. 
 
 ^Journal, p. 494. 
 
 ^ First session Forty-seventh Congress, House Report No. 938; 2 Ellsworth, p. 8.
 
 936 PKECEDENTS OF THE HOUSE OF EEPKESENTATIVES. § 725 
 
 adverse to granting extensions. Procrastination in these cases diminishes the object of investigation and 
 cheapens the value of the final decision. The law i.s intended to furnish ample opportunity for taking 
 testimony. Parties should be held to a rigid rule of diligence under it, and no extension ought to be 
 allowed where there is reason to believe that had the applicant brought himself within such rule there 
 would have been no occasion for the application." (Smith's Cont. El. Cas., 18.) 
 
 In Giddings v. Clark the Committee on Elections, in a report prepared by Mr. McCrary (among 
 other things), say: 
 
 "That no such extension should ever be granted to a sitting Member unless it appears that by the 
 exercise of great diligence he has been unable to procure his testimony, and that he is able, if an extension 
 be granted, to obtain such material evidence as will establish his right to the seat, or that by reason of 
 the fault or misconduct of the contestant he has been unable to prepare his case." (Smith's Cont. El. 
 Cas., 92-93.) 
 
 In the contested election case of Vallandigham v. Campbell it was held: 
 
 "That the fact that the sitting Member was a Member of the previous Congress, and attended to 
 his duties as such during a part of the time when by law the testimony should be taken, furnishes no 
 reason why further time should be granted." (1 Bartlett, p. 223.) 
 
 As to rule that great diligence is required to be proved to entitle the party to an extension of time, 
 see the case of Howard v. Cooper (1 Bartlett, p. 275). 
 
 Is diligence, within the rule, shown by contestant? He allowed almost a month to elapse after 
 the answer was served before he took any depositions. He applied to an officer or two to take his depo- 
 sition, who refused to act, and he neither tried to prociu^e others nor to have an officer of his own political 
 party appointed by Federal authority. He went away from Washington to attend to affairs not so 
 important as his contest, and left the same for a considerable time, without giving attention thereto. 
 Were it necessary to put the refusal to grant an extension on that ground, the committee believe that 
 the contestant has been guilty of such laches as to preclude him from the right to take further testimony. 
 
 But in order to entitle himself to an extension of time after taking testimony, the contestant must 
 state what witnesses he desires to examine, give their names, their residence, and what they will swear 
 to, or a sufficient reason why the same is not done. In the language of the able report in Giddings v. 
 Clark (1 Bartlett, 91-94): 
 
 "The affidavits relied on are fatally defective in this, that they do not state the names of the 
 witnesses whose testimony is wanted, nor the particular facts which can be proved by their testimony." 
 
 It is also laid down as a rule, in the same case, that an applicant "should produce the affidavit of 
 some of the witnesses themselves * * * stating what facts are within their own knowledge." (Same, 
 p. 93.) 
 
 But in this case the affiant makes general statements, alleges facts not within his personal knowl- 
 edge, does not state the names of witnesses, their residence, or what particular facts he proposes to prove 
 by any of them. He alleges fraud and unfairness in general terms, and does not pretend it is the same 
 fraud alleged in his notice of contest, and the committee think that the affidavit is fatally defective, 
 and no extension should be granted by reason of anything therein stated. 
 
 The report of the Senate Committee on Privileges and Elections in the Forty-third Congress is not 
 evidence. It relates to a period long anterior to 1880. 
 
 It is not a judicial determination, and is not to be considered in determining the application. 
 
 In Boles v. Edwards (Smith El. Cas., 58), the contestee submitted in evidence the report of a joint 
 select committee, appointed by the senate and house of representatives of Arkansas to investigate 
 election frauds, and it was rejected as simply "views of certain members of the legislature of Arkansas." 
 So this report, if it related to the very election in question, would be simply the views of certain Members 
 of the Senate of the United States, and could not bind the House or furnish evidence for its consideration. 
 It would be to us simply hearsay and inadmissible, as laid down in the report of Speaker Keifer in the 
 case of Donnelly v. Washburn, in the Forty-sixth Congress. 
 
 The committee concede the right of the House to investigate the title of Gates to a seat, even if 
 Mabson has been guilty of such negligence and laches as to preclude him from contesting for the seat, 
 as a party and litigant. But does his affidavit make a case calling on the House to institute an inquiry 
 and investigation for its own vindication, or to purge itself of a Member unelected, in fact? 
 
 The charges of fraud and illegality are general. At what precincts committed, or in what counties 
 even, is not alleged. Of what particular acts they consisted is not stated. No witness is named who 
 will furnish testimony of particular acts. In fact, no witnesses are named at all. 
 
 i
 
 § 726 TESTIMONY IX CONTESTED ELECTIONS. 937 
 
 The committee are not put in possession of a single fact of fraud or illegality or furnished with the 
 medium of e\-idence by which the same may even seem susceptible of proof. No case is therefore made 
 for invoking the jurisdiction of the House to investigate in order to protect its own rights and dignity. 
 
 After this report had been submitted to the full committee, the contestant 
 filed a supplemental affidavit covering some of the objections pointed out in the 
 report to liis former application and asking for further time to take testimony in 
 the district. The report thus deals with this application: 
 
 The affidavit having been read to the full committee, it was held by a majority thereof that the 
 application came too late; that it would be dangerous to establish a precedent allowing a contestant or 
 contestee, after finally submitting their cases, to ascertain from the report of the committee the grounds 
 upon which he had been overruled, and to then supplement his application by a now affidavit, avoiding 
 the decision, and thus open up the case again. Such a practice your committee think would lead to inter- 
 minable delays, and would transform the committee into mere advisers of the parties. The committee 
 are of opinion that parties should be bound by a reasonable degree of diligence, and that there should 
 be a time fixed beyond which the doors for the reception of ex parte affidavits or evidence should be shut. 
 Inasmuch as there was no application to file additional affidavits before the subcommittee until after 
 its report was made, the committee are of opinion the last aflidavit came too late, and should not be 
 considered. 
 
 The minority of the committee held that contestant had used due dihgence in 
 endeavoring to procure testimom^, and that justice demanded that he be given 
 further time to pursue an investigation, and recommended a resolution granting 
 an extention of time for not over forty days. 
 
 The majority of the committee, in accordance wath their conclusions, but with 
 some doubts as to the form of resolution, recommended the following: 
 
 Resolved, That the contestant, A. A. Mabson, have leave to withdraw his papers without prejudice. 
 
 On May 6 ' this resolution was agreed to, without debate or division. 
 
 726. The Ohio election case of Vallandigham v. Campbell in the 
 Thirty-fifth Congress. 
 
 The returned Member was denied an extension of time to take testi- 
 mony, although he pleaded that he had been detained by his duties in the 
 House. 
 
 The law for taking testimony in an election case does not preclude 
 both parties from proceeding at the same time. 
 
 A discussion as to the power of the House to disregard the provisions 
 of the law governing election contests. 
 
 On January 27, 1858,^ the Committee on Elections reported on the application 
 of the sitting Member for leave to take further testimony in the contested election 
 case of Vallandigham v. Campbell, from Ohio. This application, made under a 
 section of the act of 1851, involved also a construction of the terms of that act. The 
 majority of the committee reported a resolution declaring it inexpedient to grant 
 the request of the sitting Member, saying: 
 
 The grounds upon which the sitting Member seems to rest his application for leave to take supple- 
 mental testimony seem to reduce themselves to two, viz: 
 
 1. That the sitting Member, having been a Member of the last Congress during a part of the time, 
 when by law the testimony should have been taken, and having been attending to his duties as such 
 
 ' Journal, p. 1200; Record, p. 3687. 
 
 = First session Thirty-fifth Congress, 1 Bartlett, p. 223; Rowell's Digest, p. 1.51; House Report No. 
 60; Globe, p. 452. 
 
 I
 
 938 PEECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 726 
 
 Member he should be exempted from the operation of the law so far as to allow him time for taking 
 supplemental testimony. 
 
 2. That the contestant, by notices served upon the sitting Member, occupied, or proposed to occupy, 
 the entire sixty days after the answer of the sitting Member to the notice of contest was served, and that 
 he is therefore entitled to a period of time outside of the sixty days to complete his taking of testimony. 
 
 Upon the first point your committee are clear that the fact of one of the parties being a Member of 
 Congress for the time being can in nowise affect his obligations to comply with the law. In all the rela- 
 tions of life, both private and public, circumstances are constantly occurring which are quite as impera- 
 tive in their operation as those connected with a seat in Congress; and were this to be deemed a sufficient 
 reason for a noncompliance with the law it would at once take from its operation one-half the cases which 
 arise. The fact that the law expressly provides for taking testimony by the parties or "their agents" 
 excludes the construction that it was intended to apply only when the parties could attend in person. 
 
 Upon the second giound your committee are equally clear, that however extensive the time cov- 
 ered by one pariy in proposing to take testimony, it in nowise precludes the opposite party from pro- 
 ceeding at the same time to take it in his own behalf. There is no limitation to this power by the act of 
 1851, except "that neither party shall give notice of taking testimony in different places at the same 
 time, or without allowing an interval of at least five days between the close of taking testimony at one 
 place and its commencement at another." Under this provision, yoiu- committee believe full power 
 is given to each one of the contesting parties to proceed with taking testimony, but limits each to one 
 place at a time. 
 
 Your committee are of opinion that if either party to a case of contested election should desire 
 further time, and Congress should not be then in session, he should give notice to the opposite party and 
 proceed in taking testimony, and present the same and ask that it be received, and, upon good reason 
 Toeing shown, it doubtless would be allowed; but it seems too much to grant, in this case, for either of 
 the reasons stated. It is now upward of fifteen months since the election, and nearly one-half of the 
 term of service has elapsed, and it is due to every interest concerned that the rights in dispute should 
 be settled. 
 
 The minority argued in favor of granting the request of the sitting Member, 
 alleging that the contestant had violated the law in taking testinaony at different 
 places at the same time, and also had declined to make a mutual agreement for 
 taking testimony after the time allotted by law. It was further charged, but denied 
 by contestant, that the latter had declined to attend the taking of testimony by 
 sitting Member, alleging that the dates conflicted with his own appointments. 
 
 The report was debated on February 3, 4, and 5.' In the course of this debate ^ 
 Mr. Israel Washburn, jr., of Maine, said: 
 
 Sir, I do not believe in the binding authority of the law of 1851 upon this House in all cases. I 
 believe, sir, that it is directory, and not absolutely binding. I do not believe that the Senate of the 
 United States, in conjunction with the House of Representatives in one Congress, can make a law which 
 is to bind future Houses of Representatives. Not so. By the Constitution of the United States, each 
 House is made the judge of the returns, qualifications, and elections of its own Members, and each House 
 can and must judge for itself upon those questions. The law of Congress of 1851 is nothing but the advice 
 or suggestion of reasonable and intelligent and just men, as to the proper course to be taken — advice given 
 when no particular case was before them, and which may be presumed to be good and sound advice and 
 counsel in reference to the matter. It is nothing more. The law is not binding upon us; and if in any 
 case it is oppressive, and there is reason for stepping outside of it, I hold that we have a right to do it. , 
 
 On May 5 ' an amendment, proposed by the minority, to allow both parties to W 
 
 take supplementary evidence was disagreed to, yeas 100, nays 113. g 
 
 Then the resolution declaring it inexpedient to allow further evidence to be 
 taken was agreed to, yeas 113, nays 101. 
 
 ' Globe, pp. 558, .585, 591. ■ Globe, p. 562. ^ journal, pp. 302, 303. 
 
 I
 
 § 727 TESTIMONY IN CONTESTED ELECTIONS. 939 
 
 727. Tlie Pennsylvania election case of Kline v. Verree in the Thirty- 
 seventh Congress. 
 
 Instance wherein an extension of time was granted for taking rebut- 
 ting evidence in an election case. 
 
 On December 3, 1861/ the House, by resolution, allowed to the sitting Member 
 in the contested case of Kline v. Verree, from Pemisylvania, twenty days' additional 
 time to take rebutting testimony, and "that said testimony be taken before the 
 recorder of the city of Philadelphia, and that the sitting Member give ten days' 
 notice to the contestant of the time and place of taking said testimony and the 
 names of witnesses to be examined." 
 
 The above permission was given because the contestant had occupied nearly the 
 whole time allowed by law for taking testimony. 
 
 On December 4 a further time of ten days was granted the contestant after the 
 expiration of the additional time allowed sitting Member, "said testimony to be con- 
 fined to such as may rebut the testimony taken under said resolution, and to be 
 taken before the same magistrate and in all respects in the manner provided by said 
 resolution." 
 
 Both resolutions were recommended by the Committee on Elections. 
 
 728. The election case of Gallegos v. Perea, from the Territory of New 
 Mexico, in the Thirty-eighth Congress. 
 
 A contestant having neglected to appear during the taking of testi- 
 mony, the House declined to grant an extension of opportunity. 
 
 On April 6, 1864,^ the Committee on Elections reported in the case of Gallegos 
 V. Perea, from the Territory of New Mexico. This case involved a question as to 
 extension of time for taking testimony. The contestant, in his notice, stated he 
 would take the testimony of witnesses before Hon. Earby Benedict, chief justice of 
 the supreme court of New Mexico, or, in the event of his absence, before Miguel E. 
 Pino, probate judge of the coimty of Santa Fe. To this notice of contest the sitting 
 Delegate replied, and, after notice to that effect, proceeded to take testimony. The 
 contestant omitted to take any evidence, but in Ueu thereof petitioned the House 
 for a further time to examine witnesses. He alleged, as a reason for his failure to 
 take testimony, that Judge Benedict was a violent poUtical opponent. The other 
 judge of the district or supreme court, Joseph G. Knapp, resided in a part of the Ter- 
 ritory inconvenient because of distance and hostile Indians. No reason was alleged 
 why the contestant might not have proceeded before the judge of probate named in 
 his notice. The contestant also had failed to appear before the committee, either in 
 person or by attorney. The committee therefore recommended that further time 
 be not granted to Mr. Gallegos to take testimony. 
 
 On April 6 the House, without debate or division, agreed to the report.^ 
 
 729. The Ohio election case of William Allen in the Twenty-third 
 Congress. 
 
 Testimony having been taken ex parte, the Elections Committee con- 
 cluded that it shoiild not have weight and reported that the sitting Mem- 
 ber should not be disturbed therefor. 
 
 'Second session Thirty-seventh Congress, Journal, pp. 27, 28, 31. 
 
 ^ First session Thirty-eighth Congress, 1 Bartlett, p. 482; Rowell's Digest, p. 188. 
 
 ^Journal, p. 494; Globe, p. 1453.
 
 940 PRECEDENTS OF THE HOUSE OF REPBESENTATIVES. § ^29 
 
 Notices of taking testimony in an election case having specified such 
 times and places as to make it impossible for the returned Member to 
 attend, the Elections Committee held the testimony taken to be ex parte. 
 
 Instance wherein an election contest was instituted by various citizens 
 of a district, presentation to the House being by memorial. 
 
 On December 11, 1833,' the Speaker presented a memorial of Abraham Hegler 
 and John Mace, on behalf of themselves and others, residents of the Seventh Con- 
 gressional district, in the State of Ohio, complaining of illegality in the election and 
 retimi of William Allen as a Member for said district ; and declaring that Dimcan 
 McArthm' received a majority of the legal votes in said district, and praying that 
 said Dmican McArthm- may be declared entitled to the seat now held by said Wil- 
 ham Allen. This memorial was referred to the Elections Committee. 
 
 On December 31,^ Mr. Nathaniel H. Claiborne, of Virginia, submitted the report 
 of the committee, which found that the retimis of the election in question had been 
 examined as required by law, that William Allen had been declared elected by a 
 majoritj' of 1 vote, and that a certificate had been issued to him. The report then 
 continues : 
 
 It appears to your committee that, on the 26th day of October, 1832, a notice was served on said 
 William Allen that, "in the event he should be declared elected," his election would be contested, on 
 grounds specifically set forth in said notice, and that depositions to establish the objections to his election 
 would be taken. 
 
 The notice fiu-ther specified the times and places for taking the depositions. 
 This notice was served by Charles Martin, who also served other notices, and pro- 
 ceeded to take testimony. 
 
 William Allen, the sitting Member, did not appear in person or by attorney in 
 response to any of these notices. In reference to this the report says : 
 
 It could not escape the notice of the committee that the taking of the depositions spoken of in the 
 notices was dependent upon a contingency, to wit, the declaration of the election of said Allen by the 
 functionary whose duty it is by law to examine and count the votes and give a proper certificate to him 
 who is elected; and it struck the committee as being both novel and irregular to notify a candidate that 
 in the event of his f utiu-e election his right to a seat will be contested, and that depositions will be taken 
 before all the votes have been counted and the result of the election officially proclaimed. Yet the 
 committee would have proceeded to the examination of the testimony had it not appeared to their entire 
 satisfaction that the objects of requiring notice to be given were totally defeated by the course pursued 
 by those citizens who contested the return of Mr. Allen. The notices aforesaid set forth sufficiently the 
 grounds of objection, but the periods of time and the distance of places from each other, selected at 
 which the testimony was taken on notices signed by different persons, were so arranged as to render it 
 morally and utterly impossible for AUen to attend and cross-examine the witnesses however disposed 
 so to do. 
 
 Therefore the committee concluded the testimony offered as ex parte, and 
 agreed unanimously to these resolutions: 
 
 Resolved, That the jaemorial * * * is not sustained, and that the testimony they have exhib- 
 ited can not be admitted, because it was taken under such circumstances as to make it ex parte and of no 
 effect, as it was impossible for Allen to have attended and cross-examined the witnesses. 
 
 Resolved, That William Allen has been returned a Member to the House of Representatives of the 
 United States, in the manner and form prescribed by law and is entitled to his seat, unless it should 
 hereafter be shown by competent testimony that he has not received the majority of qualified votes. 
 
 ' First session Twenty-third Congress, Journal, p. 49. 
 -Journal, p. 146; House Report No. 110.
 
 § 730 TESTIMONY IN CONTESTED ELECTIONS. 941 
 
 The report was ordered printed and laid on the table. It does not appear that 
 it was acted on, ilr. Allen of course retaining his seat.' 
 
 730. The North Carolina election case of O'Hara v. Kitchin in the 
 Forty-sixth Congress. 
 
 Testimony of contestant being taken after the legal time and against 
 contestee's protest, the committee reported that it should not be consid- 
 ered and that sitting Member's title should be confirmed. 
 
 A condemnation by the Elections Committee of oral arrangements 
 between parties to an election case for taking testimony out of time. 
 
 All agreements by parties to an election case in contravention of the 
 provisions of law should be in writing, properly signed, and made a part 
 of the record. 
 
 On February 17, 1881,' Mr. Walbridge A. Field, of Massachusetts, from the 
 Committee on Elections, submitted the report of the committee in the North Carolina 
 contested election case of O'Hara v. Kitchin. 
 
 In the record of the case there appeared no return of the service of notice of 
 contestant, but the sitting Member, in April, 1879, served his answer wherein he 
 objected that he ought not to be called upon to answer, because no lawful or suf- 
 ficient notice had been served upon him. The contestant stated orally to the com- 
 mittee that he sent seasonably a notice, and was informed by the messenger that 
 he had left the same at the place of business of the contestee, but no affidavit or 
 deposition of the messenger was presented to the committee. The law provided 
 that a contestant should serve liis notice within thirty days after the determination 
 of the result. There was no evidence before the committee to enable them to deter- 
 mine when the result of the election was determined. Certain legal proceedings in 
 the State courts relative to the election (O'Hara v. Powell, 80 N. C, 103) had been 
 brought to the attention of the committee, and made uncertain the date from which 
 the thirty daj's should be computed. The committee say: 
 
 The contestant, therefore, has not proved that he served his notice of contest within thiity days 
 after the result oHhe election was determined, or that he ever served it at all. 
 
 A copy of the answer of the contestee was served upon the contestant on the 29th day of April, 1879. 
 
 Section 107 of the Revised Statutes is as follows: 
 
 "In all contested-election cases the time allowed for taking testimony shall be ninety days, and the 
 testimony shall be taken in the following order: The contestant shall take testimony during the first 
 forty days, the returned Member during the succeeding forty days, and the contestant may take testi- 
 mony in rebuttal during the remaining ten days of said period." 
 
 Section 2, chapter 119, of the statutes of 1875 is as follows: 
 
 "That section 107 of the Revised Statutes of the United States shall be construed as requiring all 
 testimonj' in cases of contested election to be taken within ninety days from the day on which the answer 
 of the returned Member is served upon the contestant." 
 
 In this case the earliest testimony taken by the contestant was taken on the 7th day of November, 
 1879, which was one hundred and ninety-four days from the day on which the answer of the returned 
 Member was served upon the contestant; and the contestee objects now, as he objected through his counsel 
 at the time the testimony was taken, that the ninety days for taking testimony had expired before the 
 testimony was taken. 
 
 ' This case was before the enactment of the law which now prescribes the method of taking testi- 
 mony in election cases. 
 
 ^ Third session Forty-sixth Ck)ngress, House Report No. 26.3; 1 Ellsworth, p. 378.
 
 942 
 
 PRECEDENTS OF THE HOUSE OP REPBESENTATIVES. 
 
 § 730 
 
 The contestant seta up an oral argument, as he alleges, to the effect that within the ninety days 
 prescribed by law, the exact time of which he does not fix, he and the contestee agreed — 
 
 "That as to the matter alleged in contestant's complaint as to the votes thrown out and not counted 
 for contestant in the counties of Edgecomb and Craven, it would not be necessary to take evidence, as he, 
 said Kitchin, agreed to make a case without taking testimony." 
 
 And on the 23d day of AprU, 1880, he filed an affidavit to that effect, as a foundation for a motion 
 that the time for taking testimony be extended. The contestee denies that any such oral agreement was 
 made, and filed his affidavit on the 26th day of May, 1880. 
 
 The committee had taken no action to extend the time; and the report con- 
 demns the practice of permitting parties by agreement among themselves to extend 
 the time of taking testimony without previous authority of the House of Repre- 
 sentatives. "It may happen, indeed," says the report, "that from unforeseen 
 causes an extension of time may be necessary, and the House of Representatives 
 may not be in session, and therefore no previous application can be made to it, but 
 in such cases, if the parties agree to an extension of time, the agreement should be 
 in wTiting, signed by the parties, or their attorneys, and application should be at 
 once made to the House of Representatives, when in session, for a ratification of such 
 agreement." The report, continuing on tliis subject, says: 
 
 In any case, if such agreements are to be regarded, they should be in writing, and signed by the 
 parties or their attorneys. This is the practice of courts generally, and is founded on sound reasons. If 
 oral agreements are recognized, then if they are denied by either of the parties at the hearing, testimony 
 must be taken, and this collateral issue be first determined, and as the decision may be such as one of 
 the parties did not expect, he may be put to the greatest disadvantage after the testimony on the merits 
 of the case has been all taken. The misunderstandings that often honestly arise from oral agreements 
 are alone sufficient to justify courts in insisting that none but written agreements will, if questioned, be 
 recognized. We think it of great importance in election cases that parties should understand absolutely 
 that all agreements in contravention of the statutes of the United States, in regard to the taking of 
 testimony, to be considered at all, should be in writing, properly signed, and made a part of the record 
 itself. Even then the policy of the law requires that they should not be regarded unless it appears that 
 they were bona fide entered into for an adequate and reasonable cause to be determined by the House 
 of Representatives, either before or at the time of deciding the election case. 
 
 On this ground the committee decline to determine on the affidavits the question whether or not 
 any such oral agreement as the contestant sets up was ever made, and consider the case as if there was 
 no such agreement. The committee might, indeed, in a case where testimony had been taken out of 
 time, but with fiill opportunity to the other party to cross-examine the witnesses and exhibit evidence 
 in reply, and where it was evident that this had been fully done, recommend to the House, if they find 
 sufficient reason therefor, that the testimony be considered as if taken in time; but such is not this case, 
 and the only all«^ed ground for the delay in this case is that the dwelling house of Mr. O'Hara was 
 destroyed by fire, as well as all memoranda, facts, and information in writing that he had procured 
 necessary to be used in the contest. The time when the dwelling house was destroyed by fire is not 
 stated in any of the papers, but it is said to have happened in March, 1879, and before the answer of 
 the contestee was served on the contestant. This does not seem to the committee a sufficient ground 
 for admitting testimony taken one hundred and ninety-four days after the service of the answer. 
 
 The committee, therefore, are of opinion that this contest should be dismissed, on the ground that 
 the testimony was not taken in time. 
 
 The conmiittee say, however, that, even if considered, the testimony was 
 insufhcient to establish contestant's case, and conclude: 
 
 It has been stated that the number of votes received by Mr. Kitchin and Mr. O'Hara, as canvassed 
 by the State canvassing board, is not in evidence. In the Congressional Director}', which is not evi- 
 dence, Mr. Kitchin is put down as having received 10,804 votes, against 9,662 votes for Mr. O'Hara. li 
 this statement be true as a statement of the votes as canvassed by the State board of North Carolina, it
 
 § 731 TESTIMONY IN CONTESTED ELECTIONS. 943 
 
 •will be seen that Mr. Kitchin's plurality is 1,142, which, is greater than the plurality of 925 received by 
 Mr. O'Hara in the precincts mentioned in Edgecombe County, which were not counted by the county 
 canvassing board. So that if these were all admitted, upon which, for the reasons given in the case of 
 Yeates r. Martin, the committee do not agree, there is no reason to suppose that Mr. O'Hara would be 
 elected; certainly there is no e\idence that he would be. The burden of proof is on the contestant, and 
 if all the testimony he has taken were admitted and considered it is not sufficient to enable the com- 
 mittee to determine that he was elected Representative. 
 
 No testimony has been taken by Mr. Kitchin whatever. He relied on his objection that the time 
 for taking testimony had expired when Mr. O'Hara began to take testimony. He had a right to rely on 
 this objection at that time, and even if the House should determine to consider testimony in this case 
 it would be unfair to Mr. Kitchin to do so until after an opportunity were given him to take his testimonv. 
 
 It is manifest from the notice of the contest and the answer that there were very grave and important 
 questions in dispute in this election, and that the matters in dispute concerned a far greater number of 
 votes than the plurality of the sitting Member, as given in the Congressional Directory; but on most of 
 these questions there is no testimony whatever, one way or the other, and the little testimony that has 
 been taken either has no significance at all, by reason of a want of testimony to connect it in any intelli- 
 gent manner with the questions at issue or from some other cause, or the testimony taken which is intel- 
 ligible and can be applied to the case does not establish the case of the contestant. The committee 
 repeat that in their opinion the evidence in this case should not be considered. 
 
 Therefore the committee reported resolutions confirming the title of sitting 
 Member to the seat. 
 
 On Februarr 17 the report was presented to the House for printing.' It 
 does not appear that it was acted on by the House. 
 
 731. The California election case of Kahn v. Livernash in the Fifty- 
 eighth Congress. 
 
 Instance wherein the House directed the issue of a subpoena duces 
 tecum to procure the ballots for examination in an election case. 
 
 Instance wherein the House authorized a subpoena duces tecum by- 
 registered letter. 
 
 Instance wherein the House authorized the Elections Committee to 
 send for persons and papers in an election case already made up. 
 
 Form of resolution authorizing the Elections Committee to procure 
 ballots and other evidence. 
 
 Discussion as to what constitutes a distinguishing mark on an Aus- 
 tralian ballot. 
 
 Discussion of the doctrine that the House should follow decisions of 
 the State courts construing the election laws of a State. 
 
 On December 18, 1903," Mr. Joseph H. Gaines, of West Virginia, from the 
 Gommittee on Elections No. 1, submitted the folloAving report with a resolution, 
 which was agreed to by the House: 
 
 The Committee on Elections No. 1, to which was referred the contested election case of Julius 
 Kahn, contestant, against Edward J. Livernash, contestee, from the Fourth Congressional district of 
 California, respectfully reports to the House the following resolution, approved by said committee, for 
 approval and adoption by the House, with the recommendation that it do pass: 
 
 Resolved, That Thomas J. Walsh, r^istrar of voters for the city and county of San Francisco, or 
 any successor of his in said office, be, and he is hereby, ordered to be and appear before Elections 
 Committee No. 1 of the House of Representatives forthwith, then and there to testify before said com- 
 
 ' Record, p. 1754. - Second session Fifty-eighth Congress, Record, p. 389.
 
 944 PRECEDENTS OF THE HOUSE OF EEPEESENTATIVES. § 731 
 
 mittee or such commission as shall be appointed touching such matters then to be inquired of by said 
 committee in the contested election case of Julius Kahn v. Edward J. Livemash, now before said com- 
 mittee for investigation and report; and that the registrar of voters for the city and county of San 
 Francisco bring with him all the ballots and packages of ballots cast in every precinct in the said Fourth 
 Congressional district of California at the general election held in said district on the 4th day of Novem- 
 ber 1902; that said ballots be brought in the packages in which the same now are; that said ballots 
 be examined and counted by or under the authority of such Committee on Elections in said case; and 
 to that end, that proper subpoena be issued to the Sergeant-at-Arms of this House, commanding him to 
 summons said registrar or his successor in office, if any, to appear with such ballots as a witness in said 
 case- that service of said subpoena shall be deemed sufficient, if made by registered letter, and such 
 service shall be so made unless otherwise directed by said Committee on Elections No. 1; and that the 
 expenses of said witness and all other expenses under this resolution be paid out of the contingent 
 fund of the House; and that said committee be, and hereby is, empowered to send for all other persons 
 and papers as it may find necessary for the proper determination of said controversy; and also be, and 
 it is, empowered to select a subcommittee to take the evidence and count said ballots or votes, and 
 report same to the Committee on Elections No. 1 under such regulations as shall be prescribed for that 
 purpose; and that the aforesaid expenses be paid on the requisition of the chairman of said committee 
 after the auditing and allowance thereof by said Elections Committee No. 1. 
 
 On March 18, 1904,' Mr. James R. Mann, of Illinois, on behalf of Mr. Joseph H. 
 Gaines, of West Virginia, presented from the Committee on Elections No. 1 a report 
 in the California election case of Kalin v. Livemash. This report, which was 
 concurred in by the entire committee, was as follows: 
 
 At the last general election the official returns show that in the Fourth Congressional district of 
 California Edward J. Livemash received a plurality of 146 votes. The total number of votes returned 
 for Livemash was 16,146, and there were returned for Julius Kahn, the contestant, 16,005 votes. 
 
 There is no allegation of fraud in the case, or of illegal voting. The whole claim of contestant 
 is that a largo number of ballots were illegally marked and improperly counted under the California 
 laws and decisions. Contestant concedes that of the 16,146 votes returned for Livemash 13,809 were 
 properly returned, but claims that 2,337 votes were improperly counted and returned for oontestee. 
 
 The contestee, in his turn, objected to a large number of votes returned for contestant. The 
 case of both contestant and contestee is exceedingly technical, both sides having been induced thereto 
 by the unusual and peculiar strictness with which the supreme court of California has, in the language, 
 at least, of the decisions, held that all provisions relating to the marking of a ballot by the voter must 
 be complied with. 
 
 The case involves only the question what ballots were lawfully marked and should be counted, 
 and what ballots were not lawfully marked and should not be counted, under the laws of California. 
 
 The laws of California provide for an official ballot, upon which are printed the various tickets, 
 with squares after the names of the candidates whose names are printed on it. There is also a special 
 blank column, with a space in which to write the name of any person for any office, when the name 
 of such person is not printed on the ticket. There were also at this election in California several con- 
 stitutional amendments submitted for the vote of the people; and there were squares for ratification 
 and squares for rejection opposite every such amendment. The method prescribed by statute for the 
 voter to designate his choice is to place a cross (X) in the square immediately following the name of 
 each candidate for whom he wishes to vote. If he desires to vote for some one for an office whose name 
 is not printed upon the ballot as a candidate for that office, the voter must write the name of such 
 person in the space on the blank column immediately above the title of that office as printed in the 
 blank form. In voting upon the constitutional amendments the method prescribed is to place a cross 
 (X) in one of the two squares following the amendment, according as he desires to vote for or against 
 the amendment. 
 
 ' Second session Fifty-eighth Congress, House Report No. 1739; Record, p. 3430.
 
 §731 
 
 TESTIMONY IN CONTESTED ELECTIONS, 945 
 
 Section 1205 of the California Code prescribes the method in which the voter shall prepare his ballot. 
 It is as follows: 
 
 "He shall prepare his ballot by marking a cross after the name of the person or persons for whom 
 he intends to vote, or by writing a name or names in the 'blank column,' and in case of a constitutional 
 amendment or other questions submitted to the vote of the people, by marking in the opposite margin a 
 cross (X) against the answer which he intends to give. Such marking shall be done only with a stamp, 
 which, with the necessary pads and ink, shall be provided by the officers." 
 
 Section 1211 declares that certain ballots shall not be counted, and is in the following language: 
 
 " 1. In canvassing the votes any ballot which is not made as provided in this act shall be void and 
 shall not be counted. 2. If a voter marks more names than there are persons to be elected to an office, 
 or if for any reason it is impossible to determine the voter's choice for any office to be filled, his ballot 
 shall not be counted for such office." 
 
 Section 1215 relates to identification, and is as follows: 
 
 "No voter shall place any mark upon his ballot by which it may be afterwards identified as the 
 one voted by him." 
 
 The California statute also provides that a candidate's name shall be printed but once upon the 
 ballot, and that where a candidate is nominated by more than one party he must make his election under 
 which party designation his name shall appear upon the ticket, or, if he fails to elect, his name shall be 
 printed thereon as of that party which has first certified his nomination; and, further, that on the ticket 
 of any other party by which such candidate is nominated there shall be printed in the space for that 
 office the words "No nomination." 
 
 But the contestee having been nominated by the Union Labor party and by the Democratic party 
 also, this last provision was held by the supreme court of California, in the case of Murphy v. Curry (137 
 Cal. , 479), to be invalid, and by mandamus the proper officers were directed to print the name of Edward 
 J. Livemash as a candidate upon the ballot in the Democratic column and also in the Union Labor 
 column, and the ballots were so made up. 
 
 This was the first time the same name had appeared twice on a ballot in California. Thereupon 
 on October 28, 1902, the board of election commissioners met in the office of Thomas J. Walsh, registrar 
 of voters of the city and county of San Francisco, and took the following action, as appears from the 
 minutes of the meeting: 
 
 The matter of the instructions of the election officers in relation to the counting of ballots where 
 candidates' names appear more than once on the ballot came up for discussion. 
 
 T. D. Riordan, esq., and Charles Gildea, esq., appeared before the board. 
 
 After deliberation Commissioner Deasey moved that where crosses were marked after the name of 
 the same candidate for the same office in two different columns upon a ballot it shall be counted as one 
 vote for such candidate, and that the election officers be so instructed. 
 
 Adopted by the following vote: Commissioner Boyle, aye; Voorsanger, aye; Deasey, aye; Everett, 
 aye; Kellogg, aye. 
 
 This action of the commissioners was widely published in the district. 
 
 Attorneys for contestant and contestee relied solely upon the defects in marking the ballots. Their 
 plan of procedure in making up the case for consideration of the committee was to offer the ballots 
 themselves in evidence, the attorney offering each ballot stating at the time of the offer that it was 
 marked in such a way that it should not have been counted. The attorney on the other side denied that 
 the ballot was marked in any such way. No testimony whatever was taken as to the condition of the 
 ballots. The validity of the marking of the ballots being the only question, your committee were 
 compelled either to send for the ballots or not to try the case at all. The committee entertained great 
 doubts as to the propriety of sending for the ballots, but because some of the objections made might 
 well have brought the ballots to which they related within the operation of the peculiar and unusual 
 strictness of the California decision and were such that they could not have been determined without a 
 personal inspection of the ballots, the committee decided to send for all the ballots. Having obtained 
 them, your committee examined every one of the ballots objected to by both sides, amounting in all to 
 
 ballots. 
 
 5994— VOL 1—07 60
 
 946 PBECEDENTS OF THE HOUSE OF EEPKESENTATIVES. § 731 
 
 Examination disclosed the fact that there were 752 ballots which had been voted for Livemaah by 
 placing a cross ( X ) in the square after the name of Livernash printed in the Democratic column, and also a 
 cross ( X ) in the square after the name of Livernash printed in the Union Labor column. This objection 
 to the ballots was the one principally relied on by counsel for the contestant, and one which could not 
 be met by simUar objections on behalf of the contestee to any ballots voted and counted for contestant. 
 
 To sustain this objection the case of the People ex rel. Bledsoe v. Campbell was relied on. In thai 
 case the ballot had a candidate's name printed in a party column. The voter had marked a cross ( X ) in 
 the voting square after the name, and had written the same candidate's name for the same office in the 
 blank column. The supreme court of California held that this unnecessary writing of the candidate's 
 name in the blank column was an identifying mark not authorized. The California statute says: 
 
 "No voter shall place any mark upon his ballot by which it may be afterwards identified as the one 
 voted by him." 
 
 We are asked to say that where the election officers, by direction of the supreme court of the State, 
 printed the candidate's name in two columns, and the voter placed a cross (x) after his name in both 
 columns, and after general notification from the election officers that ballots so marked would be counted, 
 a case is presented on all-fours with one where the voter marked a cross in the voting square after the 
 candidate's name and also, in the voter's handwriting, wrote the candidate's name in the blank column. 
 This view has been, perhaps, induced by the distinction made by the supreme court of California between 
 identification in law and identification in fact. 
 
 Your committee recognizes no such distinction. Either marks on a ballot indentify it as the one 
 voted by a particular voter or they do not. Your committee are aware that all identifying marks do not 
 invalidate a ballot, as, for instance, where the voter writes in his own handwriting the name of a candi- 
 date not printed on any ticket. Where this is done in good faith it is an identifying mark, but it is one 
 authorized by law and does not invalidate the ballot. Whether such writing on the ballot not done in 
 good faith would invalidate the ballot, and how far speculation upon good faith may be indulged in in 
 such cases, are questions which do not arise. 
 
 An actual examination of these 752 ballots shows that as a matter of fact this manner of marking did 
 not and could not identify the ballots. They were honestly cast, so far as any evidence in this case 
 disclosed. They were honestly cast by qualified electors and honestly counted by the returning officer 
 for the contestee. And your committee is of the opinion they were properly counted for the contestee. 
 
 If your committee were disposed to follow in all their apparent technicality the California decisions, 
 it would even then see no reason for rejecting these ballots. In the case of Lynch v. Chalmers, decided 
 in the Forty-seventh Congress (Rowell, p. 376), the committee, while upholding the undoubtedly safe 
 general doctrine that decisions of the highest courts in a State, interpreting the statutes of that State, 
 when well considered and long acquiesced in, should be followed, uses the following language: 
 
 "Where decisions have been made for a sufficient length of time by State tribunals construing 
 election laws, so that it may be presumed that the people of the State knew what such interpretations 
 were, would furnish another good reason why Congress should adopt them in Congressional election cases. 
 But this reason would be of little weight when the election had been held in good faith before such 
 judicial construction had been made, and where there was a conflict of opinion respecting the true inter- 
 pretation of a statute for the first time on trial." 
 
 In regard to these 752 ballots marked with a cross after the name of Livernash in the Democratic 
 column and also in the Union Labor column the supreme court of California had recently by mandamus 
 directed the election officers to make up the ballot by printing the name of Livernash in both columns, 
 and the election officers themselves had given the widest publicity to their official action, declaring that 
 ballots marked for Livernash in both columns should be counted. The action of the supreme court itself, 
 supplemented by the action of the board of election commissioners, might well have induced this 
 number of persons to believe that marking a cross after the name of Livernash in both columns was a 
 permissible way to mark the ballot, and even that it was the necessary way to insure the counting of their 
 ballot for Livernash for Congress. 
 
 It was claimed that 285 ballots should be rejected which had been counted for the contestant 
 because there were more than two cross marks in the square opposite his name; and it was claimed 
 that 1,555 votes which were counted for contestant should have been rejected for the same reason. 
 An inspection of these ballots satisfied the committee that the objections taken were not well founded, 
 but were trivial and supertechnical in the extreme.
 
 § 732 TESTIMONY IN CONTESTED ELECTIONS. 947 
 
 The committee resen-ed for personal inspection 294 ballots voted and counted for Livemash and 
 558 voted and counted for Kahn. 
 
 Personal inspection of all the ballots heretofore mentioned convinced your committee that the 
 manner in which they were marked did not identify and could not identify the ballots. 
 
 In addition to the 3,444 ballots already mentioned there were laid aside which both sidea 
 
 agreed should be rejected under the California decisions. Those so agreed by the parties to be rejected, 
 which had been counted for Livemash, exceeded those counted for Kahn by 49. If all these votes 
 should be rejected, it would still leave a majority for Livemash of 97. 
 
 It has been already stated that the language of the decisions of the supreme court of California 
 was extremely technical and insisted upon a verj' strict compliance by the voter with the provisions 
 of the statutes of California relative to the preparation of his ballot. It does not appear, however, that 
 the supreme court of California, in the application of the law to the facts before it, has rejected ballots 
 in a wholesale manner in which this committee has been urged to reject ballots in this case, nor can 
 it be said that such strictness of construction as the supreme court of California has adopted in lan- 
 guage or in fact has been so acquiesced in as to become a settled rule of law in that State. The com- 
 mittee can not possibly know all the circumstances of the cases before the California court. It has 
 not been made positively to appear to the committee that the supreme court of California, applying 
 its own rules, would have rejected such a vast number of ballots. The apprehension caused in the 
 State of California by the language of the decisions of their highest court has led, since the last election, 
 to a modification of the California statute with respect to the marking of ballots. 
 
 Your committee therefore recommends the adoption of the following resolutions: 
 
 Resolved, That Julius Kahn was not elected a Member of the Fifty-eighth Congress from the Fourth 
 Congressional district of California, and is not entitled to a seat therein. 
 
 Resolved, That Edward J. Livemash was elected a Member of the Fifty-eighth Congress from 
 the Fourth Congressional district of California, and is entitled to retain his seat therein. 
 
 The House agreed to these resolutions without debate or division. 
 
 732. The election case of Cross v. McGuire, from the Territory of 
 Oklahoma, in the Fifty-eighth Congress. 
 
 Instance wherein the Elections Committee declined to order the pro- 
 duction of ballots and decided the case as made up under the general law. 
 
 On April 1, 1904, ' Mr. Michael E. Driscoll, of New York, presented the report 
 of Elections Committee No. 3 in the election case of Cross v. McGuire, from the 
 Territory of Oklahoma. 
 
 The report is as follows: 
 
 The said election took place on the 4th day of November, 1902. Thereafter the votes cast at 
 said election for the oflBce of Delegate in Congress from the Territory of Oklahoma were counted and 
 canvassed, and as a result of said count and canvass Hon. Bird S. McGuire, the contestee, was declared 
 to have received 45,803 votes, and in like manner the Hon. William M. Cross, the contestant, was 
 declared to have received 45,409 votes; and in pursuance of said count and canvass Hon. Bird S. 
 McGuire received his certificate of election by a plurality of 394 votes. 
 
 A notice of contest was served by the contestant on the contestee within the time specified by 
 law, and sets forth the charges and allegations on which this contest is based, and which, very briefly 
 stated, are substantially as follows: 
 
 That gross frauds, errors, and mistakes were made in the manner and conduct of holding said elec- 
 tion; that illegal votes to the number of about 1,100 were cast for the contestee by various persons who 
 were not naturalized citizens of the United States; that legal votes to the number of about 3,958 which 
 were cast for the contestant were thrown out as mutilated ballots, and that gross frauds were perpe- 
 trated in voting precincts of the Territory of Oklahoma by various election officials thereof, in that 
 the tally sheets and abstracts of the votes cast in said various election precincts were fraudulently 
 duplicated, changed, altered, and falsified, so that said tally sheets and abstracts were fraudulent 
 
 ' Second session Fifty-eighth Congress, Becord, p. 4130; House Report No. 2094.
 
 948 PRECEDENTS OF THE HOUSE OF BEPBESENXAIIVES. § 733 
 
 and contained false and fraudulent reports of the votes cast at said election. The notice concludes 
 with a prayer, that — 
 
 "If the evidence hereafter to be taken supports the allegations contained in the foregoing speci- 
 fications, then the House of Representatives of the Congress of the United States shall award to him 
 the right to a seat as the Delegate from said Oklahoma Territory." 
 
 In due time the contestee filed an answer to the notice of contest, which contains a general denial 
 of the material allegations in the notice and several countercharges of bribery, corruption, etc., in 
 the interest of the contestant. 
 
 At the first hearing before your committee the contestant filed a notice of motion for an order 
 and proper process, requiring the county clerks of certain counties in Oklahoma Territory to deliver 
 up packages of so-called mutUated ballots and to produce the same before the committee for examina- 
 tion as part of the evidence and record in this case, to the end that it may be determined whether the 
 contestant or the contestee was elected to the office of Delegate to Congress from said Territory of 
 Oklahoma by the legal voters participating in said election. That notice of motion was not accom- 
 panied or supported by any affidavits. 
 
 The motion was denied by your committee, Mr. Frank A. McLain, Mr. C. B. Randell, and Mr. 
 Joseph T. Johnson, dissenting. 
 
 Your committee unanimously find that the record before it fails to establish the allegations con- 
 tained in the notice of contest, and recommends the adoption of the following resolutions: 
 
 Resolved, That Hon. William M. Cross was not elected Delegate to the Fifty-eighth Congress from 
 the Territory of Oklahoma. 
 
 Resolved, That Hon. Bird S. McGuire was duly elected Delegate to the Fifty-eighth Congress from 
 the Territory of Oklahoma and is entitled to a seat therein. 
 
 The resolutions were agreed to \vithout debate or division. 
 
 733. Form of resolution returning to State authorities ballots that 
 had heen examined in an election case. — On April 20, 1904,^ Mr. Frank D. 
 Currier, of New Hampshire, from the Committee on Elections No. 2, submitted a 
 report on the resolution of the House No. 306, which provided for returning to 
 Colorado the ballots in the case of Bonynge v. Shafroth. The report says: 
 
 The law of Colorado requires that each voter desiring to vote a straight party ticket shall, upon 
 receiving from the proper election officer an official ballot, retire to the booth and there in his own 
 proper handwriting insert in the blank space at the head of the ballot the name of the political party 
 whose straight ticket he desires to vote. 
 
 A few of the packages were opened in the presence of this committee, and it became at once apparent 
 that the party designation upon many of the different ballots was in the handwriting of the same person. 
 As the ballots from the 29 precincts numbered over 8,000, it was found impossible for the whole com- 
 mittee to examine them, and thereupon, by vote of the committee, a subcommittee was appointed for 
 that purpose, said subcommittee consisting of Messrs. Miller, of Kansas; Currier, of New Hampshire, 
 and Sullivan, of Massachusetts. Subsequently, in pursuance of authority conferred by resolution 
 adopted by the House, Mr. David N. Carvalho, a noted expert in handwriting, was employed to examine 
 and report upon the handwriting upon all the ballots and in all the poll books. 
 
 The respective reports of the subcommittee and of the expert are appended and made part hereof. 
 From them it appears that the greater number of the ballots from the 29 precincts are in the handwriting 
 of some eight or ten different persons, and that some of the poll books were filled out, not by the election 
 officers, as the law required, but by outside parties. 
 
 After considering these reports and a personal investigation of some or all of the ballots and poll 
 books by himself and counsel, the contestee, while disclaiming any participation in or knowledge 
 prior to the institution of the contest of the frauds committed in connection with the ballots and poll 
 Ijooks, frankly acknowledged that their extent was such as to show the contestant entitled to his seat, 
 from which he, the contestee, voluntarily retired without any action whatever by the committee. 
 
 ' Second session Fifty-eighth Congress, House Report No. 2705.
 
 § 733 TESTIMONY IN CONTESTED ELECTIONS. 949 
 
 Your committee is advised by the author of this resolution that one of the judges of the second 
 judicial district of Colorado, embracing the city of Denver, has summoned a special grand jury, and 
 directed, inter alia, an inquiry into the frauds perpetrated in connection with this election, and that 
 the presence of the ballots and poll books are desirable and necessary for the purposes of such inquiry. 
 
 These ballots and poll books are in the possession and custody of the Clerk of the House. There is 
 no occasion for retaining them here and there can be no objection to their being returned to Colorado for 
 such use as the interests of justice may require. It seems that under the law of Colorado ballots are 
 required to be preserved for one year only from the date of the election, and that, more than that period 
 having elapsed since the Congressional election of 1902, there is no designated officer whose duty it would 
 be to preser\'e these ballots and poll books intact should they be returned direct to them. 
 
 Y'our committee thinks it would be proper for the Clerk of the House to hold them subject to the 
 order of the prosecuting attorney or judges of the court, and to notify them promptly that they are at 
 their service. 
 
 The committee also submitted in this connection the report of the subcommittee 
 who examined the election case and the conclusions of the expert who examined the 
 ballots. 
 
 The resolution was reported amended to read as follows: 
 
 Whereas in the contested election case of Bonynge against Shafroth from the First Congressional 
 district of the State of Colorado certain ballots and poll books purporting to have been cast and used, 
 respectively, at the election held in said district on November 4, 1902, were under stipulation of the 
 parties to said contested election case, submitted to the Committee on Elections No. 2 of the House of 
 Representatives as part of the record in said case and for the purpose of examination and inspection 
 by said committee; and 
 
 Whereas the examination of the said ballots and poll books by a subcommittee of said Elections 
 Committee and by an expert in handwriting, employed under authority of a resolution of this House, 
 established the fact that gross frauds and crimes were committed at and in relation to the said election 
 and in connection with the said ballots and poll books; and 
 
 Whereas the said ballots and poll books are now in possession of the Clerk of this House; and 
 
 Whereas the House is informed that one of the judges of the second judicial district of Colorado has 
 directed a grand jurj' to inquire into frauds committed at and in relation to said election, in the prose- 
 cution of which inquirj' the presence of the said ballots and poll books may be necessary; and 
 
 Whereas the said ballots and poll books are no longer necessary for the use of the said Elections 
 Committee or of this House: Now, therefore, be it 
 
 Resolved, That the Clerk of the House be, and he hereby is, authorized and directed to hold the 
 said ballots and poll books subject to the order of the district attorney of the second judicial district of 
 Colorado, or any of the judges of the court of the said district, to promptly notify the said district attorney 
 and judges that he does so hold the said ballots and poll books, and upon receipt of a request to that 
 effect from the said district attorney or any of the said judges to forward the .said ballots and poU books by 
 express in a sealed package or in sealed packages to the said district attorney or judges, as the case may be. 
 
 On April 21 ' the resolution was called up in the House by Mr. Martin E. 
 Olmsted, of Pennsylvania, as a matter of privilege. 
 
 After debate had proceeded, Mr. John S. Williams, of Mississippi, made the 
 point of order that the resolution was not privileged. 
 
 The Speaker^ held that the point of order came too late. 
 
 After debate the resolution was agreed to. 
 
 ' Record, pp. 5277-5281. 
 
 ^Joseph G. Cannon, of Illinois, Speaker.
 
 Chapter XXIV.* 
 ABATEMENT OF ELECTION CONTESTS. 
 
 1. House decides as to. Sections 734-738. 
 
 2. Various conditions of. Sections 739-766.' 
 
 734. The Tennessee election case of Kelly v. Harris in the Thirteenth 
 Congress. 
 
 Although a contestant declined to prosecute further, the House 
 declined to let the case abate and concluded the inquiry. 
 
 On May 31, 1813/ the Committee on Elections reported in the contested- 
 election case of Kelly v. Harris, from Tennessee, and the House, acting on the 
 suggestion of the committee, gave the sitting Member three months in which to 
 procure testimony. 
 
 On December 2, the contestant having declined to reappear to contest the case, 
 the House determined not to abate the inquiry into the alleged illegality and recom- 
 mitted the report of May 31, with such new evidence as might be offered, to the 
 Committee of Elections. 
 
 On January 3, 1814, the committee made a report which, after quoting the 
 constitution of Tennessee in respect to the qualifications of voters, decided that a 
 certain vote had been given the petitioner in violation of this constitution, and 
 therefore deducted the said vote. This, with the deduction of a vote given by a 
 minor, led the committee to the conclusion that the sitting Member was entitled to 
 his seat. 
 
 On March 10, 1814, the House concurred in this report. 
 
 735. The South Carolina election case of Mackey v. O'Connor in the 
 Forty-seventh Congress. 
 
 The returned Member having died before the taking of testimony in 
 a contest was completed, the House held that the contest did not therefore 
 abate. 
 
 * See Volume VI, Chapter CLXV. 
 
 ' By resignation of sitting Member. Section 805 of this volume. Contest not abated by death 
 of contestant. Section 1019 of Volume II. 
 
 Contestant's acceptance of State office made incompatible by State constitution does not cause to 
 abate. Section 1013 of Volume II. 
 
 Form of resolution permitting contestant to withdraw. Section 967 of Volume 11. 
 
 ' First session Thirteenth Congress, Contested Elections in Congress, from 1788 to 1834, p. 260. 
 950
 
 § 735 ABATEMENT OF ELECTION CONTESTS. 951 
 
 A vacancy in a contested seat being filled by a special election, the 
 House seated the new Member on his credentials, but held that his final 
 right must depend on the issue of the contest. 
 
 On April 10, 1882,' Mr. Samuel H. Miller, of Pennsylvania, from the Committee 
 on Elections, submitted the report of the majority of the committee in the South 
 Carolina case of Mackey v. O'Connor. 
 
 The minority views, presented by Mr. Samuel W. Moulton, of Illinois, give the 
 following statement of the preliminary facts : 
 
 In November, 1880, E. W. M. Mackey and M. P. O'Connor were opposing candidates for Congress 
 in the Second Congressional district of South Carolina, and as the result of the election then held M. P. 
 O'Connor was declared elected by the State board of canvassers, and received the usual certificate of 
 such election, which was duly filed with the Clerk of the House of Representatives. Mr. Mackey 
 contested the election of Mr. O'Connor in the usual form, and in the taking of testimony in such contest, 
 by an agreement of which both parties availed themselves, all limitations as to time were expressly 
 waived, so that the taking of the testimony was protracted over a much longer period than the term 
 allowed by the statute, and before the taking of Mr. O'Connor's testimony was completed he died, on 
 April 26. 1881. 
 
 The majority report says: 
 
 After the testimony in chief of Mr. Mackey, and that in reply of Mr. O'Connor had been taken, 
 Mr. O'Connor died. 
 
 This slight difiFerence between the two statements was noticed in the debate, 
 but did not figure importantly. 
 
 The minority statement of fact goes on — 
 
 On May 23, 1881, the governor of South Carolina, in accordance with the provisions of the Con- 
 stitution of the United States, issued his writ of election to fiU the vacancy in the representation in 
 Congress: and at the election held thereunder, on June 9, 1881, Samuel Dibble was elected, receiving 
 his credentials June 22, 1881, and the same being filed with the Clerk of the House of Representatives 
 on June 25, 1881. 
 
 Mr. Mackey, the contestant of the late Mr. O'Connor, did not serve any notice of contest of Mr. 
 Dibble's election; but proceeded after the death of Mr. O'Connor, and before the election of Mr. Dibble, 
 in taking testimony Ln the case of Mackey i'. O'Connor; and the record as now filed and printed embraces 
 testimony on both sides so taken after Mr. O'Connor's death and before Mr. Dibble's election. 
 
 On December 5, 1881, the House met, and Mr. Dibble, on the call of the roU, presented himself to 
 be sworn. Objection was made by a Member of the Hoiise, who stated to the House the general circum- 
 stances of the case, and after calling the attention of the House to the fact that Mr. Mackey had served 
 no notice of contest upon Mr. Dibble, oSered the following resolution, viz: 
 
 "Resolved, That the certificate of election presented by the Hon. Samuel Dibble, together with the 
 memorial and protest and all other papers and testimony taken in the case of the contest of E. W. M. 
 Mackey r. M. P. O'Connor, now on file with the Clerk of this House, be, and the same are hereby, referred 
 to the Committee on Elections, when appointed, with instructions to report at as early a day as practi- 
 cable whether any vacancy as alleged in the certificate existed, and as to the prima facie right or the 
 final right of said claimants to the seat as the comjnittee shall deem proper; and neither claimant shall 
 be sworn until the committee report." 
 
 Whereupon the House, after discussion, laid the resolution on the table; and also laid on the table 
 a motion to reconsider its vote thereon. 
 
 Mr. Dibble then presented himself at the bar of the House, and was sworn, without further objec- 
 tion, and from that time until December 21, 1881, occupied his seat as a Member of the House without 
 challenge or dispute. 
 
 ' First session Forty -seventh Congress, House Report, No. 989; 2 EUswortb, p. 561.
 
 952 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 735 
 
 Two preliminary questions, of so much importance as to obscure largely the 
 merits of the election itself, arose in considering this case — 
 
 (1) The majority report so states the first question, relating to the validity of 
 the contest itself — 
 
 At the commencement of the hearing, the sitting Member protested against the committee taking 
 any action whatever upon the case, on the ground that the contest of Mackey v. O'Connor abated on 
 the death of Mr. O'Connor, and that the House had no longer jurisdiction of that case. He contended 
 that inasmuch as he was not a party to the pleadings or proofs, he should not be bound or affected by 
 either; that the only way the title to his seat could be assailed was by commencing proceedings de novo 
 and permitting him to defend Mr. O'Connor's claim. 
 
 In the opinion of the committee this position is utterly untenable. The contestant, Mr. Mackey, 
 bases his claim upon the ground that he, and not Mr. O'Connor, received the greatest number of legal 
 votes at the general election held November 2, 1880. To establish his claim, the provisions of the stat- 
 ute regulating the mode and manner of contesting an election were invoked and complied with. Notice 
 of contest was duly served upon Mr. O'Connor, who, in turn, put in an answer thereto, and upon the 
 issue thus made up a large mass of testimony, as heretofore stated, was taken. 
 
 The right of the contestant, as also of the people of that Congressional district, who, after all, are 
 the real parties in interest, to have the facts of that election inquired into and adjudicated by the House, 
 can not be changed by the fact of the death of the contestee. If the contestant really received at 
 that election, as he claims, the largest number of legal votes, it is his right and the right of the people 
 of that district that he be awarded the seat he was chosen to fill. The committee, however, are of 
 opinion that Mr. Dibble, if elected to any position, was elected to fill the vacancy created by the death 
 of Mr. O'Connor, and for his unexpired term. 
 
 This conclusion is emphasized by the significant language used in the proclamation of the gov- 
 ernor ordering the special election by virtue of which Mr. Dibble claims the seat. It is as follows; 
 
 "State of South Carolina, Executive Chamber, 
 
 "Columbia, S. C, May 2S, 1881. 
 " To the commissioners of election and the managers of election for the counties of Charleston, Orangeburg, and 
 Clarendon, composing the Second Congressional district of the State of South Carolina: 
 
 "Whereas a vacancy in the representation of the said Second Congressional district in the House 
 of Representatives of the United States of America has happened by the death of Michael P. O'Connor, 
 who, at the general election held November 2, A. D. 1880, was chosen a Member of said House of Repre. 
 sentatives for said Congressional district for the term of two years from March 4, A. D. 1881; and whereas 
 the Constitution of the said United States in such cases requires the executive authority of the State to 
 issue a writ of election to fill such vacancy : 
 
 "Now, therefore, you and each of you are hereby required to hold an election in accordance with 
 the laws for holding general elections for a Member of the said House of Representatives for the 
 said Congressional district, to serve for the remainder of the term for which the said Michael P. O'Connor 
 was elected; the polls to be opened at the various places of election in the said counties on Thursday, 
 the 9th day of June, A. D. 1881, by the various sets of managers for those places, respectively. 
 
 "Given under my hand and the seal of the State of South Carolina, this 23d day of May, in the 
 year of our Lord one thousand eight hundred and eighty-one. 
 
 "Johnson Hagood, Governor. 
 "R. M. Sims, Secretary of State." 
 
 The right of Mr. Dibble to a seat in the House depends upon the title of Mr. O'Connor. By the 
 very language of the proclamation he was a candidate "to serve for the remainder of the term for which 
 the said Michael P. O'Connor was elected;" and if it appears from the proofs that Mr. O'Connor was 
 not elected, then there was no vacancy created by his death, no remainder of a term to be filled, and 
 Mr. Dibble could have no rights to be prejudiced by any pleadings or agreements made by Mr. O'Connor. 
 In consenting to be a candidate to serve for the remainder of the term, for which Mr. O'Connor claimed 
 to have been elected, Mr. Dibble rested his title to the seat in dispute upon the title of his predecessor, 
 and he must be bound by the pleadings, proofs, and decree growing out legitimately of that contest. 
 To insist that Mr. Mackey should abandon the testimony taken in the case prior to the death of Mr.
 
 § 735 ABATEMENT OF ELECTION CONTESTS. 953 
 
 O'Connor — and all of it was taken prior thereto except the evidence of contestant in rebuttal, and 
 which is not material so far as the true issue is concerned — and commence anew a contest with Mr. Dibble, 
 involving the same specifications of contest, is, in the opinion of the committee, not only vain but in 
 conflict with every principle of law and equity. 
 
 It was claimed by the counsel of Mr. Dibble in argument that if, after the testimony had been 
 taken Mr. O'Connor had resigned, an election ordered by the governor to fill the assumed vacancy, and 
 a successor elected, the contest between the original parties would abate as fully as Lf the contestee had 
 died. These propositions must both stand or fall together. If such was the law, there would be nothing 
 to prevent a contestee from abating a contest at any time at his own volition. If, after the testimony 
 had been taken, the contestee should be forced to conclude that his case was hopeless, it would only be 
 necessary for him to resign, have the governor order a new election, again be a candidate, with a hope 
 that under circumstances more favorable to him and his party he might succeed. Assured that his 
 former certificate was proven worthless he would have nothing to lose, and if successful in receiving a 
 majority at the second election he would be enabled thereby, by his voluntary resignation, to escape 
 the effect of the frauds perpetrated by him or his partisan supporters at the first election. It is only 
 necessary to state the proposition to make manifest its fallacy. 
 
 The minority argiied at length against the conclusion of the majority — 
 
 But, as we have already said, we think Mr. Dibble's rights are not to be affected in any way by 
 this record in the case of Mackey v. O'Connor. We have already given an outline of the facts connected 
 with Mr. Dibble's admission to his seat, and have quoted the words of the resolution referring the creden- 
 tials of Dibble and the record of the case of Mackey f. O'Connor to the Committee on Elections, which 
 was laid upon the table by the House, and have also shown that the House laid on the table the motion 
 to reconsider the vote on that resolution. 
 
 Let us apply to these facts the principles of statute and parliamentary law which appear to ua 
 to be applicable thereto. And in this connection let us cite from our own recognized parliamentary com- 
 pilation as to the effect of the motion to reconsider and lay on the table. Smith's Digest, page 292, 
 concerning the motion "to lay on the table," contains this language: 
 
 "In the House of Representatives it is usually made for the purpose of giving a proposition or 
 bill its 'death-blow;' and when it prevails, the measure is rarely ever taken up again during the 
 session. If the motion to 'reconsider and lie' follow this motion, and be carried, it can only be taken 
 from the table by the unanimous consent of the House." 
 
 And again (ibid., p. 293): 
 
 " If a motion to reconsider be laid on the table, the latter vote can not be reconsidered. (Journals, 
 3, 27, p. 334; 1, 33, p. 357.)" 
 
 Mr. Cushing, in his "Law and Practice of Legislative Assemblies," after showing the distinction 
 between the English and American laws on the subject of legislative vacancies, proceeds as follows: 
 
 "If it [i. e., a vacancy] occurs before the sitting or in a recess, and the new election takes place 
 without the previous authority of the assembly, the existence of a vacancy must be determined upon 
 when the Member elected presents himself to take his seat." 
 
 In the history of vacancies in Congress, there is one case which in many respects resembles the 
 present. In May, 1867, George D. Blakey and Elijah Hise were opposing candidates for Congress in 
 the Third Congressional district of Kentucky, and four days after the election Mr. Hise died. Mr. 
 Blakey appeared before the State canvassing board and claimed to have been elected. The board 
 decided that Mr. Hise had been elected. Congress assembled thereafter on July 3, 1867; and on July 5, 
 1867, a memorial of Mr. Blakey was presented to the House, asking admission as a Member from the said 
 Congressional district, and the memorial and accompanying papers were referred to the Committee on 
 Elections, who were instructed by the House, July 11, 1867, in relation to taking evidence in regard 
 to the same. 
 
 On July 20, 1867, Congress adjourned until November 21, 1867. During this interval, and while 
 the Committee on Elections had under consideration the claim of Mr. Blakey to the seat, a special 
 election was held in the Third Congressional district of Kentucky, under writs of election issued by the 
 governor of Kentucky, to fill the vacancy occasioned by the death of Mr. Hise; and at such special 
 election, held August 5, 1867, Mr. GoUaday was elected, and on November 25, 1867, presented his 
 credentials to the House.
 
 954 PRECEDENTS OF THE HOUSE OF BEPRESENTATIVES. § 735 
 
 An extended discussion followed. The distinguished chairman of the Committee on Elections, 
 Mr. Dawes, after conceding the ordinary rule to be that charges touching "the legality of an election are 
 matters which pertain to a contest in the ordinary way, and should not prevent a person holding the 
 regular certificate from holding his seat," said: 
 
 "I do not see how it is possible to apply the rules laid down there to this case, without foreclosing 
 Doctor Blakey from any further investigation of the question of a vacancy existing at that time." (Con- 
 gressional Globe, 1, 40, p. 783.) 
 
 Other Members of the House took the position that Mr. GoUaday should be seated prima facie, and 
 that Mr. Blakey should be allowed to contest with him the right to his seat. 
 
 The House adopted the view of Mr. Dawes, and, instead of allowing Mr. Golladay to be sworn, 
 referred his credentials to the Committee on Elections. Eight days afterwards Mr. Dawes presented 
 the unanimous report of the Committee on Elections declaring that Mr. Golladay was entitled to the 
 Beat. (Congressional Globe, 2, 40, pp. 3, 56.) This report was adopted by the House, and necessarily 
 recognized that the writs of election issued by the governor of Kentucky for the special election, were 
 valid, even though the House had under consideration the question of the existence of a vacancy at 
 the time. For had the writ of election of the governor of Kentucky been prematurely issued, the election 
 would have been without legal sanction, and therefore invalid. And this decision of the House was not 
 inadvertently rendered, for Mr. Blakey not only mentions in his memorial to the House that he had 
 protested before the State authorities against the holding of the special election, but, in addition, reiter- 
 ates it in his remarks before the House. But the House refused to recommit the report of the committee, 
 ordered the previous question by a vote of 102 to 22, and adopted the recommendation of the committee 
 without a division. (Congressional Globe, 2, 40, pp. 57, 61.) 
 
 Now, to recapitulate. What principles are involved in this decision? The main doctrine is, 
 that the right and duty of the executive of a State to issue writs of election to fill vacancies in the House, 
 derived from article 1, sestion 2, of the Constitution of the United States, in advance of any adjudication 
 by Congress on the question of vacancy occasioned by death, is to be exercised in contested cases as well 
 as in ordinary cases, thus applying to such cases the same principles so early settled in the cases of 
 Edwards (Clark & Hall, 92), Hoge (Clark & Hall, 136), and Mercer (Clark & Hall, 44). And while as 
 to the matter of practice in the case of Golladay there was a difference of opinion as to whether the cre- 
 dentials ought to be referred to the Committee on Elections, in order to determine finally as to the 
 existence of a vacancy before seating Mr. Golladay, who held the certificate, or whether Mr. Golladay 
 should be sworn and the right reserved to Mr. Blakey to contest his seat, there was no dissent from the 
 proposition of Mr. Dawes, that if Mr. Golladay were sworn in without such reservation, Mr. Blakey 
 would be foreclosed "from any further investigation of the question of a vacancy existing at that time." 
 
 Now, in the present case, not only was there no reservation of the right to contest Mr. Dibble's seat 
 when he was sworn in, but the House, by a very decided vote, tabled a motion to refer the credentials of 
 Mr. Dibble and the papers in Mackey v. O'Connor to the Committee on Elections, and tabled a motion 
 to reconsider its vote thereon. 
 
 We do not mean to say, nor have we ever understood Mr. Dibble to contend, that it is beyond the 
 power of the House to make inquiry into his right to his seat by such means at it may see fit to adopt 
 in an investigation de novo. Such an investigation would give to the sitting Member the opportunity, 
 which he has never enjoyed, of defending his seat by pleadings of his own and such proofs as he may be 
 disposed to offer in his cause. It must be borne in mind that by the action of the House itself Mr. Dibble 
 was placed in full possession and enjoyment of the office of Member, on December 5, 1881. This 
 possession was clear from any qualification, reservation, or condition; it was as absolute as the possession 
 of any Member on the floor. Can it be said a contest was pending in the case of Mackey v. O'Connor? 
 The answer is that the House had decisively given "its deathblow" to the motion to make Mr. Dibble 
 a party to that contest before he was sworn in. 
 
 It is premature to discuss and to pass judgment upon the efiect of the election of November, 1880, 
 upon the special election of June, 1881, because it is a mere speculative inquiry, until by some order of 
 the House, which order has never yet been made, the sitting Member is placed in the position of a party 
 to a contest, either under the statute or under a special order of the House adopted for the specific case. 
 
 n we look at the statute, we find the following language: 
 
 "Sec. 105. Whenever any person intends to contest an election of any Member of the House of 
 Representatives of the United States, he shall, within thirty days after the result of such election shall
 
 § 735 ABATEMENT OF ELECTION CONTESTS. 955 
 
 have been determined by the officers or board of canvassers authorized by law to determine the same, 
 give notice, in writing, to the Member whose seat he designs to contest of his intention to contest the 
 same, and in such notice shall specify particularly the grounds upon which he relies in the contest." 
 
 Section 106 provides for an answer by the Member thus served with notice. Section 107 provides 
 for the taking of testimony, and incidentally, but without doubt, defines the term " Member" to mean 
 "returned Member." 
 
 Now, there is nothing in the statute to limit its application to general in contradistinction to special 
 elections. "To contest an election of any Member" is broad and comprehensive; and in this category 
 Mr. Dibble, as a "returned Member," certainly may be embraced. Mr. Dibble was certainly elected 
 at an election regularly held according to law. The cases of Hoge (Clark & Hall, 136), Edwards (Clark 
 & Hall, 92), and Mercer (Clark & Hall, 44) and the case of Blakey v. GoUaday settle that. The action 
 of the House in seating Mr. Dibble recognizes the fact and puts it beyond dispute. It is unnecessary to 
 cite authorities to show that questions concerning the legality of an election are proper matters of contest 
 under the statute; they have been so treated in numerous cases. 
 
 And when we consider that Mr. O'Connor, the "returned Member" of the November election, had 
 a right to a seat only so long as he lived, and had no inheritable or transmissible interest to be affected 
 after his death, it is enough to state that a contest for his seat after his death is a contest for something that 
 had ceased to exist. The only relation that could exist between himself and anyone that succeeded 
 him was a relation of time, not a relation of privity. It can not be said that because Mr. O'Connor was 
 elected for a term of two years he had a right in himself and his privies for two years, whether he lived 
 or died. He only had a right for two years, provided he should live; the very fact of his death creating 
 a vacancy shows that his right was absolutely gone at his death. And for anyone else to have or claim 
 a right the original granting power — i. e., the people — had to be invoked, and they alone had the right 
 to bestow the remainder of the term. In law the case of a suit against a life tenant is analogous. Can 
 anyone claim that where one of two litigants of a close — the one in possession — dies, and another person 
 enters into possession of the disputed territory under a fresh grant from the sovereign, the tenant 
 thus entering can be ousted upon the proceedings had against his predecessor, such predecessor being 
 neither his ancestor nor grantor, but simply a life tenant? And shall the right of a Member of this House 
 to his seat, a right held to be a right of property, be decided on principles antagonistic to those which 
 govern the decisions of other rights of property? We think not. 
 
 Recurring to the statute, we think it a reasonable construction of the same when we come to the 
 conclusion that Mr. Dibble, as the returned Member of the House, was entitled to the notice required 
 thereunder, in like manner as a Member elected and returned at a general election. One thing is certain 
 that it was in the power of Mr. Mackey to serve such notice and to state as his grounds the same reasons 
 he now advances for contesting the election of Mr. Dibble; and if the evidence taken in the previous 
 contest of Mackey v. O'Connor were competent in the new case, he had the opportunity of submitting 
 it on notice, as evidence in a contest against Mr. Dibble thus inaugurated, and we fail to find any statutory 
 means by which Mr. Dibble, after his election, could, by any act of his, become a party to the case of 
 Mackey v. O'Connor. 
 
 This being the case, and the House having seated Mr. Dibble, is there any precedent in law or in 
 the decisions of this House in contested cases whereby the party in possession of his seat should go out to 
 hunt an adversary? Is he to be the actor in any way? We fail to find any such precedent, and can only 
 come to the conclusion that Mr. Mackey, having neglected to avail himself of the opportunity afforded 
 him by the terms of the statute, whereby he could have inaugurated a contest in the usual form, in the 
 first instance either willfully or mistakenly prevented Mr. Dibble from being a party to the issues he is 
 now trying to force upon him. 
 
 Failing to find in the statute any mode whereby Mr. Dibble could be made a party to the case of 
 Mackey v. O'Connor, and finding in it a mode whereby Mr. Mackey might have made the issues with 
 Mr. Dibble on which he nows invokes the judgment of the House, but did not so take issue with Mr. Dibble, 
 we can not come to the conclusion that the usual resolution of reference to the Committee on Elections 
 of contested cases, adopted December 21, 1881, operated to revive the case of Mackey v. O'Connor, 
 which had received "its deathblow" by the action of the House itself over two weeks previously to 
 that time. Such resolution certainly did not make Mr. Dibble a party to the case of Mackey v. O'Connor, 
 and we faQ to find any action of the House which at any time had that effect. It therefore seems to us 
 that if the case is within the statute, then Mr. Mackey has neglected to give the notice prescribed
 
 956 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 735 
 
 by the statute to be given to the Member whose "election" is to be contested; and, on the other hand, 
 if the case be outside of the statute, the House has never taken any order for proceedings in the matter 
 against Mr. Dibble, the sitting Member, and without such order the committee are without jurisdiction 
 to act concerning Mr. Dibble in the premises, having neither the statute nor any precedents of the House 
 on which to support such claim for jurisdiction. 
 
 Under that provision of the Constitution which makes the House of Representatives the judge 
 of the election, returns, and qualifications of its Members, the House may adjudicate the question 
 of right to a seat in either of the four following cases: (1) In the case of a contest between a contestant 
 and a returned Member of the House, instituted in accordance with the provisions of title 2, chapter 
 8, of the Revised Statutes; (2) in the case of a protest by an elector of the district concerned; (3) in 
 the case of a protest by any other person, and (4) on the motion of a Member of the House. The pro- 
 ceeding in the first of these cases is, by the Revised Statutes, made a proceeding inter partes — a suit 
 or action in which the contestant is plaintiff and the returned Representative defendant. 
 
 A case adjudicated by the House on the protest of an elector, or other person, or on the motion 
 of a Representative, is not an action inter partes. It is a proceeding under the Constitution, and not 
 under the statute. 
 
 The action inter partes provided for by the Revised Statutes abates on the death of either party. 
 While the power of the House to adjudicate any question of title involved in that action survives, the 
 action itself abates upon the death of either party thereto. 
 
 It follows that the contest of Mackey v. O'Connor abated on the death of Mr. O'Connor. That 
 contest was an action inter partes. It was the technical action specially provided for in the Revised 
 Statutes. 
 
 If the House shall hereafter adjudicate any of these questions, in a proceeding against Mr. Dibble, 
 it wQl have the power, under the Constitution, to provide the rules for such adjudication. 
 
 When the House undertakes the adjudication of the right of a Member to his seat on the protest 
 of an elector or other person, or on the motion of a Representative, it does not look to the statutes for 
 its rules of procedure; it prescribes its own rules, in the exercise of its unquestionable constitutional 
 power. If it finds any of the rules prescribed by law for technical contests available and useful in the 
 case, it adopts them. Such rules then have force, not because found in the statutes, but because adopted 
 by the House. But this constitutional power of the House to prescribe the rules for such adjudica- 
 tions is not an absolute or undefined power to be arbitrarily exercised by the House. Like every other 
 constitutional power of the House it is to be exercised in subordination to those principles of justice 
 which lie at the root of the Constitution and send their influences through all its provisions. For an 
 adjudication made on the protest of an elector or other person, or on motion of a Representative, the 
 House has no constitutional right to prescribe any rules which shall bind the sitting Member by plead- 
 ings or averments which he never made, by the testimony of witnesses whom he never had an oppor- 
 tunity to examine or cross-examine, by stipulations or admissions, or waivers which he never made, 
 or by laches which he never incurred. The House has no right to make the title of a Representative 
 to his seat subject to the acts or omissions, the diligence or laches, the wisdom or folly, of another man. 
 But if it were conceivable that the contest, which is by the Revised Statutes so clearly made a 
 proceeding inter partes, could survive one of the parties, it would, nevertheless, be certain that when 
 the House seated Mr. Dibble on his credentials that contest was dismissed and passed from the juris- 
 di( tion of the House. From the time when Mr. Dibble took his seat, in pursuance of the resolution 
 of the House, it was his right to that seat which was to be assailed by any contestant, or claimant, or 
 protestant. Since that time Mr. O'Connor's right has been a question for the adjudication of the House, 
 not because it was once involved in the contest of Mackey v. O'Connor, but because it is now involved 
 in the question of Mr. Dibble's right to the seat which he occupies. When the House admitted Mr. 
 Dibble to the seat without condition or reservation, it invested him with the right which belongs to 
 other sitting Members under the Constitution and the law to receive due notice of any proposed con- 
 test, to have the opportunity to answer, to examine his own witnesses, to cross-examine those of hia 
 opponents, and to be concluded by no acts, omissions, stipulations, laches, or waivers except his own. 
 It may, perhaps, be suggested that the contest of Mackey v. O'Connor was revived and reff rred 
 to the committee by the resolution which was adopted December 22, 1881, in the following words: 
 
 "Resolved, That all of the testimony and all other papers relating to the rights of Members to hold 
 seats on this floor in contested cases now on file with the Clerk of this House or in his possession, and 
 all memorials, petitions, and other papers now in the possession of this House, or under its control,
 
 § 736 ABATEMENT OF ELECTION CONTESTS. 957 
 
 relating to the Bame subject not otherwise referred, be, and the same hereby are, referred to the Com- 
 mittee on Elections, and ordered to be printed." 
 
 But the answer is obvious. The resolution did not refer to the committee papers which related 
 to abated contests, but only those which related to pending contests. It did not revive dead suits. 
 It only referred to the committee papers which related to existing suits. An order of reference places 
 a paper before the committee for what it is worth. It imparts no ni w legal character or quality to the 
 paper. It does not transform an answer in the case of Mackey v. O'Connor into an answer in the case of 
 Mackey v. Dibble. It does not transform illegal evidence into legal evidence. It does not transform 
 a witness for or against Mr. O'Connor into a witness for or against Mr. Dibble. It does not transform an 
 admission, stipulation, or waiver by Mr. O'Connor into an admission, stipulation, or waiver by Mr. 
 Dibble. It does not transform a dead suit, to which the papers relate, into a revived and pending 
 action. 
 
 The first and only notice of contest of his seat ever served on the sitting Member, Mr. Dibble, 
 by Mr. Mackey, was not served until January 4, 1882. Thereupon Mr. Dibble filed with the committee 
 a protest against the committee's proceeding to consider and act upon the case of Mackey v. O'Connor, 
 because it was evident from the notice served by Mr. Mackey that it was the intention of the contestant 
 to assaQ his right to his seat by means of a case to which he was not a party. But a majority of the 
 committee decided to proceed with the case, and overruled the protest of the sitting Member. For 
 the reasons already set forth, we are of the opinion that the protest should have been sustained. 
 
 We can not concur in establishing as a precedent that a Member of this House, duly admitted 
 to his seat, can be rightfully removed therefrom without any opportunity of defending his title thereto, 
 either by pleading his defense, or by introducing evidence in his behalf. Nor can we subscribe to the 
 opinion that the Committee on Elections, under its ordinarj- powers, can summon a Member of this 
 House to defend a cause in which he is not the contestee, in which he is in no way named as a party, 
 and in which the House has not only not required him to appear, but has by its action declined to make 
 him a party. If such a precedent is to be established, it will be giving to the Committee on Elections 
 jurisdiction to act outside of the statute, and to inquire as to the seat of any Member on the floor at 
 its discretion, and without the order of the House. 
 
 736. The case of Mackey v. O'Connor, continued. 
 
 Discussion as to informalities in the preparation of depositions in 
 an election case. 
 
 The law governing the method of transmitting the testimony in an 
 election case to the Clerk of the House was held to be directory merely. 
 
 Instance wherein ex parte affidavits were received as to a secondary 
 question arising in an election case. 
 
 The House rejected a return of State election officers on the evidence 
 of the returns of United States supervisors of elections. 
 
 (2) As to the validity of the testimony. 
 
 The testimony was taken by E. W. Hogarth, notary public and stenographer, 
 and sitting Member produced before the committee an ex parte affidavit of Hogarth 
 setting forth the following facts: 
 
 That he was employed by E. W. M. Mackey, esq., as stenographer and notary public in the con- 
 test between E. W. M. Mackey and M. P. O'Connor for a seat in the Forty-seventh Congress of the 
 United States, and that deponent acted as stenographer, and sometimes notary public, in Orangeburg 
 County on behalf of the Hon. M. P. O'Connor. That deponent took the testimony on the part of E. W. M. 
 Mackey, esq., in the counties of Charleston, Orangeburg, and Clarendon, with the exception of one or 
 two depositions. That all of the testimony so taken by deponent as stenographer was transcribed from 
 his stenographic notes in deponent's own handwriting, and testimony taken on behalf of E. W. M. 
 Mackey, esq., was turned over to him in deponent's own handwriting, and such taken on behalf of the 
 Hon. M. P. O'Connor was turned over, in deponent's own handwriting, to Robert Chisolm, jr., esq. 
 This ended his (deponent's) connection with said testimony, except that afterwards, at various times, 
 he (deponent) signed certificates which were tendered to deponent by E. W. M. Mackey, esq., and
 
 958 PKECEDENTS OF THE HOUSE OF REPRESENTATIVES, § 736 
 
 also jurate at the foot of depositions; these deponent signed without comparison with his said steno- 
 graphic notes, taking it for granted that said testimony was the same as furnished by deponent to said 
 E. W. M. Mackey, esq. That the said certificates were often presented to deponent for signature by said 
 E. W. M. Mackey, esq., when deponent was otherwise employed, and that deponent did not have his 
 stenographic notes at hand when he so certified said testimony. 
 
 That deponent also certified the testimony taken on behalf of Hon. M. P. O'Connor in instances 
 whete deponent acted as notary public. 
 
 That deponent did not forward any of said testimony to the Clerk of the House of Representa- 
 tives, but turned same over to the respective parties named above, and deponent knows nothing of hie 
 personal knowledge concerning the forwarding of the same. 
 
 Sitting Member also produced the afl&davit, also ex parte, of one G. Smith, 
 who swore that he was employed by contestant to write out the testimony taken 
 in his behalf, and that in writing it out made material changes, destroying the 
 originals (i. e., the copy furnished by the stenographer, but not the stenographer's 
 notes, which were retained by Hogarth). 
 
 Several other ex parte affidavits were produced by sitting Member tending to 
 confirm this testimony as to the alteration of the affidavits. 
 
 It also appeared in the record of the case ' that in a similar manner the testi- 
 mony taken by Mr. O'Cormor was delivered to the latter's son, who, assisted by 
 Mr. Mackey, went over it to make corrections. 
 
 It also appeared that there had subsisted between the original parties to the 
 contest an agreement, signed by Mr. Mackey and by the attorney of Mr. O'Connor, 
 providing, among other things, that in all cases where "a deposition is not sub- 
 scribed to by the party making the same the signature of such witness is hereby 
 waived." ^ 
 
 The law of the United States in regard to the duties of the officer taking testi- 
 mony in a contested election case provided : 
 
 Sec. 122. The officer shall cause the testimony of the witnesses, together with the questions pro- 
 posed by the parties or their agents, to be reduced to writing in his presence and in the presence of the 
 parties or their agents, if attending, and to be duly attested by the witnesses respectively. 
 
 Sec. 127. All oflScers taking testimony to be used in a contested election case, whether by deposi- 
 tion or otherwise, shall, when the taking of the same is completed, and without unnecessary delay, 
 certify and carefully seal and immediately forward the same by mail addressed to the Clerk of the 
 House of Representatives of the United States, Washington, D. C. 
 
 It appeared that the evidence was, moreover, transmitted to the House by 
 express, and not by mail.' 
 
 The minority attacked the depositions and demanded their suppression on two 
 grounds: 
 
 (a) Because the depositions were not reduced to writing in the presence of the 
 notary. 
 
 Quoting the judiciary act of 1789 — 
 
 And every person deposing as aforesaid shall be carefully examined and cautioned and sworn or 
 aflBrmed to testify the whole truth, and shall subscribe the testimony by him or her given after the 
 same shall be reduced to writing, which shall be done only by the magistrate taking the deposition, or 
 by the deponent in his presence. And the depositions so taken shall be retained by such magistrate 
 until he deliver the same with his own hand into the court for which they are taken, or shall, together 
 
 ' Record, Appendix, p. 359. ' See Record, p. 4372. ' Record, p. 4346.
 
 I 736 ABATEMENT OF ELECTION CONTESTS. 959 
 
 with a certificate of the reasons as aforesaid of their being taken, and of the notice, if any, given to the 
 adverse party, be by him, the said magistrate, sealed up and directed to such court and remain under 
 his seal until opened in court — 
 
 the minority contended that it was analogous to the law governing taking testi- 
 mony in contested election cases, and that the decisions in relation to it sustained 
 their contention. They quoted at length from Bell v. Morrison (1 Peters, 351), 
 United States v. Smith (4 Day, 121), Edmonston v. Barrett (2 Cranch C. C, 228), 
 and other decisions to show that a deposition was not admissible if it was not 
 shown that it was reduced to writing in the presence of the magistrate. The 
 minority conclude : 
 
 But it is argued that the original stenographic notes were written out in the presence of the notary 
 public, and that this was a compliance with the statute. The authorities already cited are not consist- 
 ent with this position. The object is the authentication of the testimony now on file with the Clerk 
 of the House. And the agreement of the parties only extended to the substitution of the longhand 
 transcript of the stenographic notes, and did not waive anything but the signatures of the witnesses 
 thereto. The parties made no agreement that the depositions in longhand should be afterwards recopied 
 by the contestant and his agents out of the presence of the notarj', and that these papers should be 
 forwarded, and the longhand depositions made by the notarj' should be destroyed. The part of the 
 agreement bearing upon this matter is as follows: 
 
 "Fourth. That inasmuch as both parties intend to have the depositions of many of the witnesses 
 taken in shorthand by a stenographer, which will render it impossible for such witnesses to subscribe 
 to their depositions until the same shall be written out, which, in many instances, can not be done for 
 eome time after such depositions shall have been taken; and inasmuch as the signatiu'es of the witnesses 
 in such cases could only be procured by requiring a second attendance of such witnesses at considerable 
 inconvenience and expense to all parties interested; therefore, in all cases where a deposition is not 
 Bubscribed to by the party making the same the signature of such witness is hereby waived." 
 
 The contestant, Mr. Mackey, states that this rewriting of the depositions was done, not by agree- 
 ment of the parties, but by agreement between the notary, Hogarth, and himself. But to our minds 
 this conduct of a public officer was a violation of his plain duty under the statute, to retain the testimony 
 in his own custody untU forwarded, and this was aggravated, not excused, by collusion between the 
 officer and one of the parties without the knowledge or consent of the other party. 
 
 We think, therefore, that the depositions substituted by the contestant and his agents for the orig- 
 in&b written by Hogarth should be suppressed. 
 
 The majority, who denied, as a matter of fact, that the affidavits had been 
 materially or harmfully altered, and who insisted that fourteen affidavits on which 
 the decision of the case turned could not be impeached successfully, say: 
 
 It was further charged that the technical requirements of the statute in reference to taking testi- 
 mony in contested elections had not been complied with, either in the transcribing of the depositions 
 in their attestation or in the manner of their being forwarded to the Clerk of the House. To meet the 
 first and really only serious charge the contestant filed the affidavits of 83 of the 94 witnesses examined 
 by him, each of whom deposed that he had carefully read his deposition, as contained in the printed 
 record, and that the same was in every particular the deposition made by him before the notary public, 
 and that there had been no garbling or alteration in or addition thereto, and they each again made oath 
 to the truth of the matters and things therein contained. The notary who, by agreement of Mr. Mackey 
 and Mr. O'Connor, took the testimony stenographically, also made oath that in the limited time given 
 him he had compared with his stenographic notes the depositions of 14 witnesses as printed in the record, 
 and that the depositions as printed correspond in every particular with the original stenographic notes 
 of such depositions. 
 
 The majority further say: 
 
 The affidavits submitted by the contestant in answer to Mr. Dibble's protest are uncontradicted 
 by any affidavit filed by the latter, and they establish the fact that the testimony, as found in the printed
 
 960 
 
 PRECEDENTS OF THE HOUSE OF KEPRESENTATIVES. 
 
 §736 
 
 record, is in every particular the testimony actually given by the witnesses, and taken stenographically 
 by the notary, and afterwards transcribed by his direction. It is not controverted that the evidence 
 was, by the agreement of Mr. Mackey and Mr. O'Connor, taken stenographically by the notary. These 
 stenographic notes are the original evidence of what the witnesses deposed. They were taken neces- 
 sarily in the notary's presence, who was also the stenographer. They were really the depositions in 
 the cause. By the stipulations it was agreed that these stenographic notes should be afterwards tran- 
 scribed. The manner in which they were transcribed, and by whom transcribed, is amatterof no impor- 
 tance, providing they were transcribed correctly, since the notary public accepted the work as performed 
 bv the copyists, and certified to the same as being the depositions taken by him. The fact that the 
 contestant assisted in making transcripts of this evidence does not detract from its correctness. 
 
 (&) The minority insisted that the evidence should have been transmitted to 
 the House by the notary, and until so transmitted must remain in his custody. 
 The majority say: 
 
 The provisions of the statute in regard to the form and manner of taking and forwarding testimony 
 in contested election cases are merely directory, and therefore the only question which the committee 
 has deemed it necessary to consider upon this point has been whether the essential provisions of the law 
 had been complied with; that is, had the testimony of the witnesses been correctly reported by the 
 notary and stenographer, and had that testimony been forwarded to the House. If Mr. Dibble had 
 shown by the proper evidence that the depositions before the committee were not the depositions of 
 the witnesses (and he could have done this by the ex parte affidavit of the stenographer, if such was 
 the case) he would have disclosed a matter fatal to their consideration. 
 
 This question as to the validity of the affidavits received the most attention 
 during the debate, and was the point on which the minority apparently rested 
 their defense with most confidence. 
 
 (3) As to the merits of the case. 
 
 The majority report says: 
 
 Under the election laws of South Carolina the governor of the State, prior to each general election, 
 appoints for each county in the State three commissioners of elections. These commissioners of 
 elections appoint for each poll in their respective counties three managers of elections. (Rev. Stat., 
 Title II, chap, viii, sec. 2.) By the managers so appointed the election at each poU is conducted, 
 and at its close the votes counted and a return thereof made to the commissioners of elections (15 Stat., 
 171), who, on the Tuesday next following the election, meet and organize as a board of county can- 
 vassers, and from the returns made to them by the managers they count or canvass the votes of the 
 county and make such statements thereof to the State board of canvassers as the nature of the election 
 requires, making for Representative in Congress "separate statements of the whole number of votes 
 given in such county." (Rev. Stat., Title II, chap, viii, sees. 15-18.) From these statements of votes 
 made by the county canvasser the board of State canvassers determine and certify the number of votes 
 cast for the different candidates for the various offices voted for and declare what persons have been 
 by the greatest number of votes duly elected to such offices. (Ibid., sees. 24-26.) 
 
 Acting upon the returns made by the county canvassers of Charleston, Orangeburg, and Clarendon, 
 the counties composing the Second Congressional district of South Carolina, the State board of can- 
 vassers certified and declared that at the election held November 2, 1880, the vote cast for Representa- 
 tive in Congress from the said district was as follows (Rec, p. 11): 
 
 
 M. P. O'Con- 
 nor. 
 
 E. W. M. 
 Mackey. 
 
 Charleston 
 
 11,429 
 3,627 
 2,513 
 
 8.112 
 2,712 
 1.473 
 
 
 
 Total 
 
 17,569 
 12,297 
 
 12,297 
 
 Majority for O'Connor 
 
 5,272
 
 § 737 ABATEMENT OF ELECTION CONTESTS. 961 
 
 Although the vote certified by the State board of canvassers is a correct aggregate of the vote 
 returned to it by the county boards of canvassers, it is not a true statement of the result of the election, 
 becatise the returns made to the State board of canvassers by the county canvassers of Charleston and 
 Orangeburg, upon which the State board acted, were not full and correct statements of the vote cast 
 in those counties. Had the county canvassers in the three counties in the district counted the vote aa 
 returned to them by the managers of the election of the several precincts in the several counties, the 
 result would have been a majority of 879 for Mr. Mackey. These managers in every instance and 
 at every poU in the district were of the same political faith, and were the partisan supporters of Mr. 
 O'Connor. The majority certified for Mr. O'Connor by the county board of canvassers, all of whom 
 were Democrats, was obtained by entirely reversing the vote of one, Haut Gap, and leaving out in the 
 final count seven precincts in Charleston County, to wit. Black Oak, Strawberry, Calamus Pond, 
 Biggin Church, Brick Church, Ten Mile Hill, and Enterprise, and four in Orangeburg County, to wit. 
 Fogies, Fort Motte, Lewisville, and Bookhardts. 
 
 The majority discuss the twelve precincts briefly and show that the actual 
 vote cast at them is proven by the testimony of United States supervisors, some- 
 times corroborated by testimony of the State election officers. 
 
 The minority objected to the returns of the United States supervisors as 
 evidence and discussed their status somewhat. 
 
 The minority did not concede that the majority for O'Connor was destroyed. 
 
 The majority, after arguing that there were great frauds in the district beyond 
 what they had thought it necessary to show, recommended the following resolutions: 
 
 Resolved, That the Hon. Samuel Dibble is not entitled to hold the seat now occupied by him in 
 this House as a Representative from the Second district of South Carolina in the Forty-seventh Congress. 
 
 Resolved, That the Hon. E. W. M. Mackey was duly elected as a Representative from the Second 
 Congressional district of South Carolina in the Forty-seventh Congress, and is entitled to a seat in this 
 House. 
 
 The report was debated at length from May 29 to May 31,' and on the latter 
 day the resolutions of the majority were agreed to, yeas 150, nays 3, the minority 
 refraining from voting. 
 
 Mr. Mackey then appeared and took the oath. 
 
 737. The Virginia election case of Walker v. Bhea, of Virginia, in 
 the Fifty-seventh Congress. 
 
 The death of the contestant after the beginning of an election case 
 did not prevent the continuation of the case to a decision. 
 
 A ballot complicated and unfair but not shown to be issued in pursu- 
 ance of any conspiracy was not considered as a reason for discarding the 
 return. 
 
 The fact that fewer votes were returned for contestant than for the 
 head of his party ticket was held not to justify a conclusion of fraud. 
 
 On April 8, 1902,^ Mr. Edgar Weeks, of Michigan, from the Committee on 
 Elections No. 3, reported in the case of Walker v. Rhea, of Virginia. On the face 
 of the retmns the returned member received a majority of 1,751 votes. After the 
 contest was begiui the contestant died, but this did not prevent the further 
 progress of the case. 
 
 ' Record, pp. 4329, 4334, 4372-4398, Appendix, p. 357; Journal, pp. 1377-1380. 
 - First session Fifty-seventh Congress, House Report No. 1504. 
 
 5994— VOL 1—07 61
 
 962 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 737 
 
 The contest was based substantially on the following allegations and charges, viz: 
 
 First. That the official ballots printed and used in several of the counties were 
 so complicated and unfair that it was very difficult, if not impossible, for voters to 
 read mark, and prepare them within the time of two and one-half minutes allowed 
 by law for that purpose; that many of the electors who intended and tried to vote 
 for contestant were disfranchised by reason of said unfair ballots, and that such 
 ballots were so arranged and printed by the political friends of contestee with a 
 fraudulent intent, and were calculated to deceive and mislead. 
 
 Second. That the returned member's majority over contestant of 1,751, while 
 McKialey's majority over Bryan was 1,509 in the same district, is conclusive proof 
 that the returns on their face were not an honest expression of the will of the voters 
 at that election and that the contestant was defrauded and cheated. 
 
 Third. That the electoral boards and other election officers were guilty of fraud 
 and dishonest practices in the interest of contestee, which accomplished contestant's 
 apparent defeat. 
 
 Those charges and allegations were severally denied by the returned member 
 and other pleas and explanations were interposed in his behalf. 
 
 The committee criticise the election laws of Virginia as conducive to fraud; 
 but their conclusions as to the merits of contest were as follows: 
 
 The Virginia election law provides that the official ballot shall be a white paper ticket containing 
 the names of persons who have complied with the provisions of that act and the titles of the offices for 
 which they are candidates, printed in plain roman type not smaller than that known as "pica." WhQe 
 the letter of the statute may have been complied with, several of the ballots, notably that in Scott 
 County, if legal, were very unfair. On those ballots were the names of six candidates for President and 
 Vice-President, the names of the electors for each, their residences, and the names of the contestant 
 and contestee, with the titles of the offices for which they were candidates. No regard for order was 
 observed in the form of the ballot or the arrangement of that matter, and the names of the Congressional 
 candidates especially appear in unexpected and unlooked-for positions. They were necessarily very 
 misleading and confusing. 
 
 To say that the elector of ordinary intelligence and education would find it very difficult to examine, 
 mark, and prepare that ballot in the two and one-half minutes allowed by law is a mild expression of a 
 manifest truth. Under the law those official ballots, not only throughout the district, but throughout 
 the whole State, could and should have been uniform and so arranged and printed as to assist rather 
 than confuse. And if the object in preparing them were not to take unfair advantage, then the printers 
 and members of the electoral boards who supervised the work were guilty of gross negligence or incom- 
 petency. However, your committee is not disposed to predicate its judgment on suspicion merely, 
 or on facts or circumstances from which contrary inferences may be fairly drawn. It is not convinced 
 that those unfair ballots were the result of a common purpose, or that they emanated from a common 
 source, or that the contestee advised or approved of the use of such ballots, but, on the contrary, suggested 
 that the ballots be made as plain as possible. Therefore this charge is dismissed. 
 
 The fact that on the face of the returns contestee received 1,751 more votes than contestant and 
 McKinley 1,509 more than Bryan is not, in the judgment of your committee, sufficient reason to justify 
 the conclusion that such result was accomplished by fraud. After a careful examination of the record 
 your committee does not find such affirmative and positive evidence of fraud or mistakes on the part 
 of the election officers as will overcome contestee's certified majority or justify it in setting aside the 
 election. 
 
 Therefore the committee reported that the contestant was not elected, and 
 that the sitting Member was entitled to the seat. 
 
 On May 21 ' the House, without division, concurred in the report of the com- 
 mittee. 
 
 ' Record, p. 5756.
 
 § ''^^ ABATEMENT OF ELECTION CONTESTS. 963 
 
 738. The North Carolina election case of Moody v. Gudger in the 
 Fifty-eighth Congress. 
 
 An election contest does not necessarily abate by reason of the death 
 of contestant during the taking of testimony. 
 
 Hearsay evidence as to declarations of voter as to how he had voted 
 or would vote was held incompetent. 
 
 Evidence as to the party affiUations of voters is inconclusive as proof 
 of how they cast their ballots. 
 
 Hearsay evidence as to declarations of voters that they had been 
 bribed is unsatisfactory and dangerous evidence. 
 
 On March 18, 1904,' Mr. H. O. Young, of Michigan, from the Committee on 
 Sections No. 1, submitted the report of the committee in the North Carolina 
 election case of Moody v. Gudger. 
 
 At the outset of this case the committee dispose of a preliminaiy question as 
 
 foil 
 
 ows: 
 
 test^nf mJ^^T P''^^i"^,^=^^^ been completed and a part of the testimony had been taken the con- 
 testant, Maj James M. Moody, died, and it is strongly uiged by contc^tee that the proceedings were 
 thereby abated. He says, however: ^ 
 
 "The constitutional right of the House of Representatives to inquire into and pass upon the title 
 o any Member to the seat occupied by him is not questioned. The Constitution, Article I section 5 
 plainly makes the House the sole judge of the election returns and qualifications of its Member Ite 
 jurisdiction and power under this section is sole and supreme. In such manner as it may deem advis- 
 able It may exercise this constitutional prerogative and no one may question its action, but the exer- 
 cise of this power must originate with the House. By resolution or other original affim^ative action it 
 must declare its purpose to investigate and adjudge." 
 
 Your committee are of the opinion that when the House of Representatives referred this contest 
 to your committee it took such affirmative action and clothed your committee with jurisdict^ to h^ 
 and report upon the ca.e. This doctrine is not without precedent. In the case of Mickey r ^Conn^ 
 decided in the Forty-seventh Congress, an abstract of which appears upon page 387 of Rowell's Digest 
 
 or MrSibl Iho r;°; " r^r^ :' *'^ P^-^lngs. it was there contended by the atto^mj 
 
 for Mr^ Dibble who had been elected to the vacancy caused by Mr. O'Connor's death, that the contest 
 
 had abated and that it would be nece^arj^ for contestant to begin a new contest againsi the then siS 
 
 Member, but the majority of the committee thought otherwise They said • ^ 
 
 "The nght of contestant, as also of the people of that Congressional district, who, after all are 
 
 tl Tl r T " !, K 't ' ? ^"'" '^' ^^"^ "^ '^"' ^^^^'"'^ '°''"^^^d i°t» ^°d adjudicated by the House 
 can not be changed by the fact of the death of the contestee. " 
 
 The minority of the committee dissented, but the House agreed with the majority of thecom- 
 Kuttee and being satisfied that upon the merits of the case conte:Snt wa. duly elected, he wa^^eated 
 The exercise of this power did not onginate with the House, but with the contestant, and the HoLe 
 took no other affirmative action to declare its purpose to investigate and adjudge than the reference ol 
 the contest to the Committee on Elections. 'cicreuce oi 
 
 In the later case of Dantzler v. Stokes, from South Carolina, in the Fifty-seventh Congress Stokes 
 
 Sr' t : • .\l"""'' "^"^ "^ '';'° ''''''''' '" ^" '''' ^'^-°'^>' thus caused, wa., permittfdl' de^enl 
 the contest, and the case proceeded, though no final action was taken thereon by the House 
 
 Contestee attempts to draw a distinction between the case of the death of contestant and that of 
 contestee, but your committee is satisfied that such distinction is not well founded. The oriSnll 
 jurisdiction of Congress is as perfect in one case as in the other. The people of the (LnJS^fl 
 district as wa. said in the case of Ma.key .. O'Comior, "are the real parties in interesTandTe 
 as much concerned in not being misrepresented by a man they have defeated at the polls a^th^v 
 ^e m being represented by a man they have elected. If an election contest be re^S merely 
 a. a personal action it will abate by the dea th_o^dthe^part3^_IUs^nlv^bec^^ 
 
 ' Second session Fifty-eighth Congress, House Report No. 1738: Record, p. 5430.
 
 964 
 
 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 §738 
 
 personal action but one in which the people of the Congressional district are interested, and because 
 the House has a right of its own motion to investigate the election of its own Members, that the contest 
 may proceed after the death of either party. Congress can not be ousted of its jurisdiction to turn from 
 its doors an interloper by the fact that the person really elected has died. 
 
 As to the merits of the case, the committee found: 
 
 Upon the face of the returns contestee received 12,700 votes and contestant received 12,517 votes, 
 giving contestee an apparent majority of 183 votes. Contestant in his notice of contest alleges that 
 this apparent majority was olitained by bribery and fraud in South Waynesville precinct of Haywood 
 County, and by misconduct of the registration and election boards in Tryon and Shields precincts of 
 Polk County, where duly qualified electors were denied the right to vote, and large numbers of illegal 
 votes were received in gross violation of law. He asks that the returns from these precincts be rejected. 
 He also alleges similar frauds and misconduct in other precincts of said district, but he has offered no 
 proof thereof, and your committee therefore disregards said allegations. He also alleges specifically 
 that large numbers of illegal votes were cast, counted, and returned for contestee, naming the precincts 
 in which they were thus cast and the number of said votes cast in each precinct. These aggregate 
 nearly 900 votes. He also alleges in the same specific manner that about 60 legal votes were attempted 
 to be cast for contestant and they were arbitrarily and illegally rejected by the registration an delection 
 boards. 
 
 Contestee in reply denies all the allegations of contestant above set forth, and further answering 
 allies in the same specific manner pursued by contestant that some 1,500 illegal votes were cast, 
 counted, and returned for contestant. 
 
 It was conceded upon the argument by the attorneys for both parties that the individual votes 
 cast, counted, and returned for contestant and those which were cast, counted, and returned for con- 
 testee that were proven to be illegal would substantially lialance each other and would in no way 
 affect the result. The committee, being satisfied that this is a fact, enters into no discussion of the 
 nearly 2,400 separate and distinct issues raised by these individual cases and agrees with the attorneys 
 in the case that the case must be determined by the final disposition to be made of the votes returned 
 from the precincts of South Waynesville, Tryon, and Shields, and from the county of Buncombe. 
 In these the vote was as follows: 
 
 
 Gudger. 
 
 Moody. 
 
 Majority 
 Gudger. 
 
 
 3,029 
 150 
 119 
 266 
 
 2,690 
 60 
 49 
 
 147 
 
 339 
 90 
 70 
 
 119 
 
 Shields 
 
 
 
 Total 
 
 3,564 
 
 2,946 
 
 618 
 
 
 It will be readily seen that if the county of Buncombe be thrown out the result of the election 
 would be changed; the same result would follow if the precinct of South Waynesville and either of the 
 precincts of Tryon or Shields should be discarded; but the rejection of the two precincts of Tryon and 
 Shields alone, or the rejection of South Waynesville, would still leave contestee a majority. 
 
 BUNCOMBE COUNTY. 
 
 The contestant in his notice of contest only asked for the rejection of certain votes in the county 
 of Buncombe, but the attorney for contestant in his brief and in his oral argument before the committee 
 demands the rejection of the entire vote of the county. Contestee objects that this contention is not 
 open to contestant as it is not contained in his notice of contest. Your committee expresses no opinion 
 upon this question, as their conclusion upon an examination of the facts renders a decision unnecessary. 
 
 The constitution of North Carolina provides that only legally registered voters shall be permitted 
 to vote, and then follows this section: 
 
 "Every person presenting himself for registration shall be able to read and write any section of 
 the constitution in the English language, and before he shall be entitled to vote he shall have paid, on 

 
 § 738 ABATEMENT OF ELECTION CONTESTS. 965 
 
 or before the 1st day of May in the year he proposes to vote, his poll tax for the previous year, as pre- 
 scribed by article 5 of the constitution, section 1." (Constitution of North Carolina, art. 6, sec. 4.) 
 
 The statute of North Carolina based upon this constitutional provision provides that — 
 
 "Everj- person liable for such poll tax shall, before being allowed to vote, exhibit to the r^istrar 
 his poll-tax receipt for the previous year, issued under the hand of the sheriff or tax collector of the 
 county or township where he then resided, and unless such poll-tax receipt shall bear date on or before 
 the 1st day of May of the year in which he offers to vote such person shall not be allowed to vote: 
 Provided, That in lieu of such poll-tax receipt it shall be competent for the registrar and judges of election 
 to allow such person to vote upon his taking and subscribing to the following oath: 'I do solemnly swear 
 (or affirm) that on or before the 1st day of May of this year I paid my poll tax for the previous year, as 
 required by article 6, section 4, of the constitution of North Carolina.' " (Record, p. 5.) 
 
 It is made the duty of the sheriff to file a list of all persons who have paid their poll tax in time to 
 qualify them as voters. Under the laws of North Carolina, however, all male persons over 50 years of 
 age are exempt from the payment of the poll tax, and all male citizens who are under 21 years of age on 
 June 1 of the year previous to that in which the election was held would owe no poll tax on the May 1 
 next preceding the election, and so could have no receipt and would not appear upon the sheriff's list 
 uf those who had paid their poll tax. No claim was made that any of these statutes or constitutional 
 provisions are invalid. Contestant shows that some 500 men voted in Buncombe County whose names 
 are not on the sheriff's list of those who had paid their poll tax in time to qualify them as voters. He 
 claims that this was owing to a conspiracy to issue fraudulent tax receipts and exemptions after the 
 time fixed by law for said purpose, and that said conspiracy was so largely carried out as to throw doubt 
 and discredit on the entire vote of the county and render it impossible to determine how the honest 
 vote of the county was cast. 
 
 Your committee finds the evidence of this conspiracy inconclusive. If it existed at all it was 
 abortive of results, for the testimony clearly shows that the list of those who voted without being on 
 the sheriff's list is largely made up of those who were too old or too young to be liable for the poll tax, 
 and of those who were not conclusively shown to have been entitled to vote, at least as many were shown 
 to have voted for contestant as for contestee. The committee desires to call attention to the incompetent 
 and inconclusive character of much of the testimony as to how individuals voted. This consisted in 
 a very large number of cases of the statement of some third party that the voter, who was not himself 
 called as a witness, had said that he should vote or had voted for contestant or contestee, as the case 
 might be. It is needless to say that this is hearsay. 
 
 Another class of testimony relied on w.-^s that certain voters were Republicans or Democrats, from 
 ■which the inference wus sought to be drawn that they had voted their party ticket for Member of Congress. 
 That such testimony, if admissible at all, is inconclusive and of little weight wUI be conceded by every 
 lawyer. But whether you allow to this testimony all the force that is sought to be given it by either of 
 the parties or reject it altogether, the result is the same. In either case contestant has received at least 
 as many illegal votes as contestee. Your committee therefore can not find any valid reason for rejecting 
 the vote of Buncombe County. 
 
 SHIELDS PRECINCT, POLK COUNTY. 
 
 The contestant alleges that legal voters were denied registration in Shields precinct of Polk County, 
 and that the ballot box was stuffed with illegal ballots. The evidence to sustain the latter charge is too 
 puerile for consideration. There is no evidence tending to prove that more than one legal voter was 
 denied registration, and there is other evidence just as credible tending to show that this one legal voter 
 did not apply for registration at all, and so could not have been rejected. The vote of this precinct also, 
 in the opinion of your committee, should be counted as cast and returned. 
 
 TRYON PRECINCT, POLK COUNTY. 
 
 The contestant claims that the votes of Tryon precinct, in Polk County, should be rejected because 
 of the refusal of the registration officers to register a large niunber of qualified voters. Your committee 
 can find no evidence tending to show that more than one legal voter was refused registration. A few 
 illegal votes seem to have been cast, but this, in the opinion of your committee, was the result of 
 accident rather than design, and the illegal votes are easily eliminated and do not affect the result. In 
 the opinion of your committee the vote of this precinct should not be rejected.
 
 966 PRECEDENTS OF THE HOUSE OF REPBESEKTATIVES. § 739 
 
 This disposes of the case, as the precinct of South Waynesville, in Haywood County, even if 
 rejected, would not alter the result, but as much stress has been laid upon this precinct in the argument 
 of coimsel your committee thinks best to report the facts relative to the election therein as it finds them. 
 
 SOUTH WAYNESVILLE PRECINCT, HAYWOOD COUNTY. 
 
 All the testimony tends to show that this precinct was normally Democratic from 200 to 250 
 majority. At the election in question it was carried by nearly all the Democratic candidates by majori- 
 ties of over 200. It was the home, however, of contestant. He was popular there. Two years before 
 he had carried the precinct by a majority of 26 gainst the Democratic candidate, Mr. Crawford. At 
 that time there was disaffection in the Democratic ranks, and some of the most prominent Democratic 
 workers were supporting contestant. These same men in 1902 were supporting contestee. The result 
 of that election was a majority of 119 for contestee, who ran fully 100 behind the average of his ticket. 
 Contestant claims that this result was brought about by wholesale bribery of voters by contestee, with- 
 out which contestant would have carried the district by as large a majority as he had done two years 
 
 previously. 
 
 It is evident, however, that the conditions had materially changed. In 1900 contestant was 
 opposed by a divided Democratic party; in 1902 by a united Democratic party. There is considerable 
 testimony to the effect that it was "common talk," "generally understood," "whispered about," and 
 "a matter of common knowledge " that money was being used by the friends of both contestant and con- 
 testee for the purpose of influencing voters. There is also some testimony that a few men who had 
 voted at the election told the witness that they had been offered money and in some cases that they had 
 received money for their votes. Testimony of this kind is sometimes received in election cases from 
 the difficulty of obtaining direct evidence of bribery, but at its best it is inconclusive, unsatisfactory, 
 and dangerous. It is a most significant fact, however, that nearly all the active workers for both 
 contestant and contestee were witnesses in the case, and each, while disclaiming any knowledge 
 of the improper use of money by persons other than himself, when asked as to his own conduct, put 
 himself upon his constitutional right and refused to answer questions which might criminate himself. 
 The above is a fair statement of all the testimony tending to show the improper use of money by 
 the supporters of the contestee. 
 
 There is no evidence to show that contestee used any money himself or was cognizant of the use of 
 any money by his supporters in this precinct in his behalf, properly or improperly. On the contrary, 
 there is strong direct testimony of the most positive nature, from those in a position to know, that he 
 contributed no money whatever to be used in aid of his election in this precinct. No single voter is 
 pointed out who was bribed to vote for contestee. For these reasons your committee think the vote of 
 South Waynes viUe precinct should not be rejected. 
 
 It follows from these conclusions that in the opinion of your committee the contestant has not 
 made out his case, and they therefore recommend the adoption of the following resolution: 
 
 "Resolved, That James M. Moody was not elected a Member of the Fifty-eighth Congress from the 
 Tenth district of North Carolina. 
 
 " Resolved, That James M. Gudger, jr., was elected aMember of the Fifty-eighth Congress from the 
 Tenth district of North Carolina, and is entitled to retain his seat therein." 
 
 The House agreed to the resolutions without debate or division. 
 
 739. The Maryland election case of Stewart v. Phelps in the Fortieth 
 Congress. 
 
 Instance of the withdra'wral of an election contest by letter from, the 
 contestant. 
 
 On July 5, 1867/ Mr. Charles E. Phelps, of Maryland, whose seat had been 
 contested by Charles J. Stewart, presented a communication from Mr. Stewart, 
 addressed to the House, in which he stated that he had proceeded to take testimony 
 in support of the allegations in his notice of contest; but, finding the testimony 
 insufficient to entitle him to the seat, he hereby withdrew his claim. This conunu- 
 nication with accompanying papers was referred to the Committee on Elections. 
 
 ' First session Fortieth Congress, Journal, p. 165; Globe, p. 500.
 
 § 740 ABATEMENT OF ELECTION CONTESTS. 967 
 
 740. The Illinois election case of Durborow v. Lorimer, in the Fifty- 
 eighth Congress. 
 
 Instance of abandonment of a contest by notification from contestant 
 to the committee. 
 
 On April 20, 1904,' Mr. Marlin E. Olmsted, of Pemisylvania, from the Committee 
 on Elections No. 2, presented the following report: 
 
 At the regular Congressional election in 1902 the returns showed WUliam Lorimer, Republican, 
 to have received 16,540 votes; Allan C. Durborow, Democrat, 15,555 votes; H. P. Kuesch, Socialist, 536, 
 and Eugene W. Chapin, Prohibitionist, 667. Mr. Lorimer, having an apparent plurality of 985, received 
 the usual certificate of election and is the present sitting Member from that district. Within the statu- 
 tory period, however, Mr. Durborow served a notice of contest, claiming to have been rightfully elected 
 to the said seat. 
 
 The contest seems to have been conducted mostly in the circuit court of Cook County, 111., upon 
 questions arising over the right to have the ballots produced and recounted. This privilege having been 
 finally granted by the court and the ballots investigated and recounted, it developed that there had 
 been cast for Mr. Lorimer 16,495 votes and for Mr. Diwhorow 15,501, the recount thus increasing Mr. 
 Lorimer's plurality 9 votes. 
 
 From that point Mr. Durborow appears to have abandoned the contest. Neither printed record 
 nor brief has been submitted to the committee, and the opportunity afforded for oral argument was not 
 embraced. Mr. Durborow, however, has said to the chairman of the committee that, although he 
 commenced the contest in good faith, he does not care to proceed with it further, and is willing that 
 appropriate resolutions shall be adopted sustaining Mr. Lorimer's title to the seat. Your committee 
 therefore recommends the adoption of the following resolutions: 
 
 "Resolved, That Allan C. Durborow was not elected to membership in the House of Representatives 
 of the United States in the Fifty-eighth Congress and is not entitled to a seat therein. 
 
 "Resolved, That William Lorimer was duly elected to membership in the House of Representatives 
 of the United States in the Fifty-eighth Congress and is entitled to a seat therein." 
 
 The resolutions were agreed to without division. 
 
 741. The Kentucky election cases of Edwards v. Hunter and White 
 V. Hunter, in the Fifty-eighth Congress.— On December 6, 1904,= the Speaker 
 laid before the House the following communication; which was referred to the 
 Committee on Elections No. 2 : 
 
 Clerk's Office, House of Representatives, 
 
 Washington, D. C, December 6, 1904. 
 Sir: I have the honor to lay before the House of Representatives the contested-election cases of 
 Edwards v. Hunter and WTiite v. Hunter, of the Eleventh Congressional district of Kentucky, notices 
 of which have been filed with the Clerk of the House, and transmit herewith all original testimony, 
 papers, and documents relating thereto. 
 
 On June 24, 1904, copies of the printed record were sent to the contestants, with notices to file 
 
 brief of the facts and authorities relied on to establish their case. August 24, 1904, D. C. Edwards, one 
 
 of the contestants, filed his brief, copies of which were sent to W. Godfrey Hunter, contestee, and to 
 
 John D. White, contestant, with notice to file reply brief, but no reply brief has been received to date. 
 
 Very respectfully, 
 
 A. McDowell, 
 Clerk House of Representatives. 
 Hon. Joseph G. C.^snon, 
 
 Speaker Eovse of Representatives. 
 
 This case was heard by the committee, but no report was made to the House, 
 and Mr. Htmter retained the seat. 
 
 ' Second session Fifty-eighth Congress, House Report No. 2687; Record, p. 5186. 
 'Third session Fifty-eighth Congress, Record, p. 38.
 
 9gg PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 742 
 
 742. The Colorado election case of Bonynge v. Shafroth in the Fifty- 
 eighth Congress. 
 
 Instance wherein returned Member, while a contest was pending in 
 committee, stated to the House that he was not elected. 
 
 Beturned Member having acknowledged to the House, before the 
 decision of the committee, that contestant was elected, the House pre- 
 ferred to adopt the usual resolutions before seating contestant. 
 
 Resolutions to seat a contestant are privileged, even though the case 
 may still be pending in committee. 
 
 On February 15, 1904/ Mr. John F. Shafroth, claiming the floor for a question 
 of privilege, said: 
 
 Mr. Speaker, in the contested election case of Robert W. Bonynge against John F. Shafroth it waa 
 stipulated and agreed by contestant and contestee that the ballots cast at that election in the twenty- 
 nine contested precincts should be brought before the Committee on Elections of this House and opened 
 for the first time in the presence of its Members. The ballots were those cast at the general election in 
 1902 for State officers and Representative in Congress. The object was that the original arrangement, 
 form, and condition of the ballots should first be seen by the committee. The ballots were shipped to 
 the Clerk of the House of Representatives at the joint expense of contestant and contestee. 
 
 At the first meeting of the committee for the hearing of this case the ballots were presented for 
 inspection. A subcommittee was appointed to ascertain how many illegal ballots were contained 
 therein. It was agreed that in order to facilitate their work their sessions should be secret. The sub- 
 committee opened the ballots from three precincts, and finding that it took one week to examine them, 
 asked the House for authority to employ an expert, which was granted. Since that time the expert 
 has been examining the ballots, and on Thursday last made his report to the committee. The committee 
 then ordered that each of the parties should have one week's time in which to examine the ballots, and 
 if then either of us desired to send for the expert for the purpose of examining him that we should have 
 that privilege. After that the case was to be set for argument before the committee. 
 
 On Thursday afternoon I commenced examining the ballots, and continued doing so during Thurs- 
 day, Friday, and Saturday. I do not believe that 2,792 Qlegal votes were cast (that being my majority 
 as returned), yet my examination disclosed the fact that the assurances which I had received as to the 
 regularity of the votes in many of the precincts were not true, and that there were illegal votes therein 
 which tainted the polls, and the polls so tainted gave me a greater plurality than my returned majority 
 in the district. 
 
 The fact was a bitter disappointment to me, but nevertheless true. 
 
 The law is that when a poll is tainted by fraud and it is impossible to purge the poll of the fraud- 
 ulent votes, the vote of the entire precinct, legal and illegal, must be thrown out. 
 
 The committee has given me every opportunity to ascertain the illegal vote so as to save the valid 
 vote in those precincts. Until I saw the ballots last Thursday, I thought the illegal vote could be 
 detected and separated from the legal vote, but I must confess that my inspection has convinced me 
 that it is impossible to do so in this case. 
 
 The law being as I have stated and the number of precincts tainted containing majorities for me 
 greater than my returned majority, I must say that if I were a judge upon the bench considering this 
 case I would be compelled to find against myself, and as the vote in the contested precincts aggregates 
 less than one-tenth of the vote in the Congressional district, I would be compelled to find that according 
 to law Mr. Bonynge is entitled to the seat. [Applause.] 
 
 I did my best to have an honest election. My law partner, with my approval, organized a citizens' 
 committee composed of both Republicans and Democrats who desired a fair election. The head- 
 quarters of that committee, as shown by the evidence in this case, were in the law offices of Rogers, 
 Shafroth & Gregg, Denver, Colo. 
 
 ' Second session Fifty-eighth Congress, Record, pp. 1986, 1988.
 
 § 743 ABATEMENT OF ELECTION CONTESTS. 969 
 
 I have always been in favor of pure politics, and when the test is applied to an election at which 
 I was voted for as one of the candidates upon the ticket I should not shirk my duty or change my con- 
 victions concerning honest elections. 
 
 I therefore will say to the Committee on Elections Xo. 2 and to the Members of this House that 
 they can seat Mr. Bonynge at their earliest convenience. 
 
 As this is the last time I will have the opportunity of addressing the House, I want to thank the 
 Committee on Elections No. 2, and particularly the chairman, Mr. Olmsted, and the subcommittee, 
 Mr. Miller, Mr. Currier, and Mr. Sullivan, for the fair and impartial manner in which they proceeded 
 to investigate this case. Every suggestion which I made as to the investigation was readily concurred in. 
 
 I wish also to say that I appreciate the repeated declarations of Mr. Bonj-nge in the record that I 
 was not a party to or in any manner connected with any of the frauds or irregularities charged. I also 
 desire to thank the Members of this House for the uniform coiutesy and evidences of respect which I 
 have received during the eight years of my service in Congress. I have formed friendships here upon 
 both sides of the Chamber which I shall cherish through life. I fully appreciate the high character of 
 the men who compose this body, but it is only when I am about to leave that I fuUy realize the dis- 
 tinguished honor it is to serve as a Member in the greatest legislative body on the face of the globe. 
 Wishing you all a happy and prosperous futiu-e, I will say good-bye. [Loud applause.] 
 
 Mr. Speaker. I will ask the chairman of the committee, if he is ready, to present the usual resolu- 
 tions in a case of this kind. 
 
 Mr. Marlin E. Olmsted, of Pennsylvania, chairman of Elections Committee 
 No. 2, asked unanimous consent that Mr. BomTige, the contestant, be sworn in. 
 
 Mr. Sereno E. Payne, of New York, objected that this should not be done with- 
 out a resolution from the committee. [The committee had not reported on the 
 case.] 
 
 Later Mr. Olmsted asked unanimous consent for the consideration of the 
 following resolutions : 
 
 WTiereas John F. Shafroth, a Member of this House returned as elected from the first district of 
 Colorado, and whose seat is contested by Robert \V. Bonynge, has this day in a frank and honorable 
 manner, very creditable to himself, informed the House that after a consideration and examination of 
 the ballots he is convinced that Robert W. Bonynge is entitled to the seat: Therefore 
 
 Resolved, That John F. Shafroth was not duly elected and is not entitled to a seat in this House. 
 
 Resolved, That Robert W. Bonynge was duly elected and ia entitled to a seat in this House. 
 
 The Speaker ' saif 1 : 
 
 In the opinion of the Chair the resolution is privileged. 
 
 Thereupon the resolution was agreed to. 
 
 743. The New York election case of Chesebrough v. McClellan, from 
 New York, in the Fifty-fourth Congress. 
 
 It being demonstrated to the Elections Committee that contestant had 
 withdrawn, the House confirmed the title of sitting Member. 
 
 On January 15, 1896," the Committee on Elections No. 2 reported in the case 
 of Chesebrough v. McClellan, from New York. The contestant, in his notice of con- 
 test, had alleged as his groimds the casting of illegal votes at the election; and that 
 dm-ing the political canvass preceding the election, the sitting Member had instigated 
 the issue of a circular falsely charging him with opposing the passage of a State 
 law for the benefit of cyclers; and that because of that circular many electors were 
 
 ' Joseph G. Cannon, of Illinois, Speaker. 
 
 'First session Fifty-fourth Congress, House Report No. 48: Rowell's Digest, p. 513.
 
 970 PKECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 744 
 
 prejudiced to vote against contestant. The sitting Member replied to the notice 
 of contestant, denying the casting and counting of illegal votes, denying that he 
 had instigated the issuing or circulation of the circular, but alleging it to be a fact 
 that the contestant had in fact signed his name to a petition in May, 1887, remon- 
 strating against the legislation in question. 
 
 After serving the notice of contest the contestant had addressed to sitting 
 Member a letter agreeing to withdraw from the contest if the sitting Member would 
 exhibit to him the petition in question. The petition was duly exhibited; and 
 later contestant notified sitting Member that he withdrew from the contest, and 
 requested the return of the notice of contest. 
 
 Afterwards, in February, 1895, the notice of contest and answer were filed 
 with the Clerk of the House, together with the affidavit of contestee that no evi- 
 dence had been taken in the case. The committee examined these, as well as the 
 letters of the contestant, found that no testimony had been taken in the case, and 
 reported that the contestant had withdrawn from the contest. 
 
 Therefore they reported resolutions declaring the contestant not elected and 
 the sitting Member entitled to his seat. 
 
 On January 15' the House agreed to the resolutions without division. 
 
 744. The Illinois election case of Belknap v. McGann in the Fifty- 
 fourth Congress. 
 
 Instance wherein the sitting Member appeared before the Elections 
 Committee and orally conceded the election of contestant. 
 
 The sitting Member having announced that he conceded the election 
 of contestant, the House passed the usual resolutions for seating the 
 contestant. 
 
 On December 27, 1895,^ the Committee on Elections No. 1 reported in the 
 case of Belknap v. McGann, of Illinois, that the sitting Member had appeared before 
 the committee and orally conceded the election of the contestant. The committee 
 complimented the action of Mr. McGann, and the House agreed to the usual resolu- 
 tions declaring Mr. McGann not elected and Mr. Belknap elected and entitled to 
 the seat. Mr. Belknap was thereupon sworn in. 
 
 745. The Alabama election case of Comer v. Clayton in the Fifty-fifth 
 Congress. 
 
 Instance wherein, during the taking of testimony, a contestant put 
 in an attested notice of his withdrawal. 
 
 The contestant having withdrawn, the House passed a resolution con- 
 firming the title of sitting Member. 
 
 On January 19, 1898,=" Mr. Romulus Z. Linney, of North CaroUna, from the 
 Committee on Elections No. 1, submitted a report in the case of Comer v. Clayton, 
 from Alabama. The committee state that the contestant formerly withdrew after 
 the taking of testimony had proceeded for some time, and consequently the testi- 
 mony had not been printed or opened by the committee. As part of their report 
 the committee present contestant's notice of withdrawal, which was duly attested. 
 
 'Journal, p. 117. 
 
 2 First session Fifty-fourth Congress, House Report No. 5; Journal, pp. 79, 80. 
 
 ^ Second session Fifty-fifth Congress, House Report No. 195; Rowell's Digest, p. 554; Journal, p. 113.
 
 § 746 -\BAIEMENT OF ELECTION CONTESTS. 971 
 
 The committee presented resolutions confirming the title of contestee to the 
 seat, which were agreed to by the House without debate or division. 
 
 746. The Kentucky case of Hunter v. Rhea in the Fifty-fifth 
 Congress. 
 
 A contestant having withdrawn his contest and accepted an office 
 incompatible with membership, the House confirmed the title of sitting 
 Member. 
 
 Instance wherein a contestant went before the Elections Committee 
 and announced his withdrawal from the contest. 
 
 The Elections Committee asserted that it might proceed with an elec- 
 tion case after the withdrawal of the contestant. 
 
 On May 17, 1898,' Mr. S. A. Davenport, of Pennsylvania, from the Committee 
 on Elections No. 1, submitted a report m the case of Hunter v. Rhea, from Kentucky, 
 as follows: 
 
 By the official returns the contestee was given a majority of 337; the contestant claimed, on his 
 theory of the case, to be elected by a majority of 468. 
 
 The issues relate chiefly to questions involving the qualifications of certain voters, upon which 
 differences of opinion naturally arise among honest judges of election and good lawyers. 
 
 The testimony in the ca.se was printed and briefs were filed with the committee. Before the case 
 was set for hearing the contestant appeared before the committee and declared that he no longer desired 
 to prosecute his contest; that since he began the same he had been appointed by the President minister 
 of the United States to Guatemala. He has entered upon and is now discharging the duties of that office 
 
 Your committee is of opinion that it does not lose jurisdiction of the case by reason of this announced 
 purpose of contestant to desist from the contest, but can proceed, if it so desires, to hear and report upon 
 it as in other cases. 
 
 But in the absence of any suggestion of collusion between the parties, in view of the character of 
 the issues raised, and aided by the facts already recited, we do not deem it necessary to examine in detail 
 the voluminous record in the case, and deem it our duty to confirm contestee's title to the seat he now 
 holds. 
 
 In accordance with these conclusions the committee reported a resolution con- 
 firming the title of sitting Member to the seat, and the same was agreed to by the 
 House without debate or division. 
 
 747. The Alabama election case of Clark v. Stallings in the Fifty- 
 fifth Congress. 
 
 Instance wherein a contestant appeared before the Elections Commit- 
 tee and withdrew his case. 
 
 On January IS, 1898,= Mr. R. W. Tayler, of Ohio, from the Committee on 
 Elections No. 1, submitted a report in the case of Clark v. Stallings, from Alabama, 
 which was merely an announcement that the contestant took no steps after filing 
 his notice of contest, and appeared before the committee on January 14, 1898, and 
 stated that he had no desire to further press his contest. The committee therefore 
 presented resolutions confirming the title of the sitting Member to his seat, and the 
 House agreed to the same without debate or division. 
 
 'Second session Fifty-fifth Congress, House Report No. 1356; Rowell's Digest, p. 557; Journal 
 p. 565. ' ' 
 
 ^Second session Fifty-fifth Congress, House Report No. 188; Howell's Digest, p. 554; Journal,
 
 972 PRECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 748 
 
 748. The Delaware election case of Willis v. Handy in the Fifty-fifth 
 
 Congress. 
 
 The contestant having announced to the committee his abandonment 
 of the contest, the House confirmed the title of sitting Member. 
 
 On April 30, 1898,' Air. R. W. Tayler, of Ohio, from the Committee on Elections 
 No. 1, submitted a report in the Delaware case of Willis v. Handy, saying: 
 
 The contestee, by the official returns, received 15,407 votes and the contestant 11,159. A notice 
 of contest was served on the contestee, but the contestant took no further formal action. He appeared 
 before your committee and declared his opinion that tlie contestee's seat could not be successfully 
 attacked and that he had abandoned the contest. 
 
 Therefore the committee recommended resolutions confirming the sitting Mem- 
 ber in his seat, which were agreed to by the House without debate or division. 
 
 749. The election case of Lyon v. Bates, from Arkansas Territory, in 
 the Seventeenth Congress. 
 
 A contestant having procured no testimony in support of his petition, 
 the Elections Committee recommended his withdrawal. 
 
 On December 19, 1821,^ in the contested election case of Lyon v. Bates, from 
 Arkansas Territory, the Committee on Elections recommended that the petitioner 
 have leave to withdraw, since he had produced no testimony in support of his 
 allegations that the retimis on which the sitting Member obtained the seat were to 
 a fatal extent improper and illegal. 
 
 750. The Louisiana election case of Smith v. Robertson in the Forty- 
 seventh Congress. 
 
 A contestant having failed to prosecute his case according to law or 
 to take testimony, the House dismissed the contest. 
 
 On March 4, 1882,'' Mr. Samuel H. Miller, of Pennsylvania, from the Committee 
 on Elections, presented this report: 
 
 That after hearing argument, and after a full examination of the papers, it was unanimously agreed 
 by the subcommittee having the case in charge that the contestant had not prosecuted his case accord- 
 ing to law; that he failed to take evidence to substantiate his charges of contest; and therefore recom- 
 mend that the contest be dismissed; which the full committee, upon due consideration, concluded to 
 recommend. The committee therefore report the following: 
 
 Resolved. That the contest of Alexander Smith v. E. W. Robertson, in Sixth Louisiana district, be 
 dismissed without prejudice. 
 
 The House agreed to the resolution without debate or division.'' 
 
 751. The Louisiana election case of Merchant and Herbert v. Acklen 
 in the Forty-sixth Congress. 
 
 A contestant having failed to file the brief required by law, the Elec- |' j 
 
 tions Committee notified him to appear and show cause why his case >- 
 
 should not be dismissed. I 
 
 'Second session Fifty-fifth Congress, House Report No. 1239; Rowell's Digest, p. 557; Journal, ' 
 
 p. 519. '■; 
 
 2 First session Seventeenth Congress, Contested Elections in Congress from 1789 to 1834, p. 372. 
 ^ First session Forty-seventh Congress, House Report No. 631; 2 Ellsworth, p. 284. 
 * Journal, p. 728; Record, p. 1610.
 
 § 752 ABATEMENT OF ELECTION CONTESTS. 973 
 
 The contestant having failed to respond to a notice to appear, the 
 House dismissed the case. 
 
 On March 7, 1881,' Mr. William M. Springer, of Illinois, from the Committee 
 on Elections, submitted the report of the committee in the cases of Merchant and 
 Herbert v. Acklen, from Louisiana. The report was as follows: 
 
 That the notices of contest and answers thereto were referred to the Committee on Elections and 
 filed with the clerk of said committee on the 13th day of April, 1879. Evidence taken in the above 
 cases was printed on the 15th day of January, 1880, and copies of the same were sent to the contestants, 
 as required by the rules of the committee, by the clerk of said committee, with an official notice to pre- 
 pare briefs within twenty days from the 25th day of January, 1880, to which no attention was given by 
 said contestants. 
 
 On the 21st day of May, 1880, the clerk of the committee was directed by resolution to telegraph to 
 Messrs. Merchant and Herbert to appear before the committee either in person or by attorney on the 29th 
 day of May, 1880, and show cause why their cases should not be dismissed on at'count of the failure to 
 file briefs as directed. No attention was given to these dispatches, and the parties neither appeared in 
 person nor by attorneys, as notified. The said contestants were again notified by registered letters, on 
 the 22d day of December, 1880, to appear before the Committee on Elections on the 11th day of 
 January, 1881, and show cause why the cases should not be dismissed, and to this no reply was made. 
 
 We therefore respectfully recommend the adoption of the following resolution: 
 
 Resolved, That Joseph H. Acklen was duly elected and is entitled to a seat in this House as a Repre- 
 sentative in the Forty-sixth Congress from the Third Congressional district of the State of Louisiana. 
 
 Resolved, That Robert O. Herbert and W. B. Merchant have leave to withdraw their papers of 
 contest in this case. 
 
 The House agreed to the resolutions at once, without debate or division.- 
 
 752. The Indiana election case of McCabe v. Orth in the Forty-sixth 
 Congress. 
 
 A contestant having failed, through a series of adverse incidents, to 
 produce testimony, the House, on account of the lateness of the session, 
 gave him leave to withdraw and confirmed the title of sitting Member. 
 
 A contestant having by aflB.davit given his reasons for asking further 
 time to take testimony, the Elections Committee framed a resolution 
 allowing the time. 
 
 On February 15, 1881,^ Mr. William H. Calkins, of Indiana, from the Committee 
 on Elections, submitted the report of the committee on the Indiana election case of 
 McCabe v. Orth. 
 
 The sitting Member had been returned by an official majority of 98 votes. 
 
 The report states the preliminary facts: 
 
 On the 1st day of November, 1878, Mr. Orth received his certificate in due form from Hon. James 
 D. Williams, then governor of Indiana. Within thirty days thereafter, and on the 12th day of Novem- 
 ber, 1878, Mr. McCabe served notice of contest upon Mr. Orth, specifying, as is alleged, the grounds of 
 contest particularly, therein. This notice never came into the possession of your committee. 
 
 On the 5th day of December thereafter it is alleged that Mr. Orth fully answered each ground and 
 specification of contest and served the same on that day on Mr. McCabe. 
 
 It is alleged by Mr. McCabe in a memorial presented to your committee, duly verified by him, 
 that he did not take any testimony to support the several allegations in his notice of contest during the 
 
 ' Third ses,sion Forty-sixth Congress, House Report No. 382; 1 Ellsworth, p. 345. 
 
 2 Record, p. 2286. 
 
 ^ Third session Forty-sixth Congress, House Report No. 260; 1 Ellsworth, p. 320.
 
 974 PKECEDEKTS OF THE HOUSE OF KEPRESENTATIVES. § 752 
 
 time allowed by law, for the reason, among others, that there was a contest pending between other 
 contestants, which was in process of trial before the proper tribunal in the county of Montgomery, which 
 would, and which did, develop substantially the evidence relied upon by him to overturn the declared 
 result. 
 
 Contestant further urged illness in his family as a reason for not taking testi- 
 mony within the time prescribed by law. 
 
 He further alleged that as early as February, 1879, he discovered evidence 
 tending to support an allegation of bribery, which, if sustained, would destroy the 
 official majority of sitting Member. 
 
 Of tliis memorial the report says: 
 
 This petition or memorial was presented to your committee on the 10th day of June, 1879. There 
 were two other affidavits subsequently filed by Mr. McCabe, signed by Mr. Dobblebower and Mr. 
 Paterson, in which affidavits each of the affiants testified that, on information and belief, facts tending 
 to establish the bribery aforesaid might be elicited if time were given to take depositions. 
 
 In answer to this memorial supported by the affidavits of Mr. McCabe and the two witnesses 
 aforesaid, Mr. Orth promptly filed his own affidavit with your committee, denying generally the speci- 
 fications in Mr. McCabe's memorial and affidavit so far as it affected his right to a seat in Con- 
 gress, and specifically denying any connection with or knowledge of the bribery alleged by Mr. McCabe. 
 Numerous affidavits are also filed in support of Mr. Orth's claim. 
 
 An issue being thus made, your committee were called upon to decide whether under the circtim- 
 stances additional time should be given the contestant to take testimony, and the contestee to rebut, 
 when it was decided on the 23d day of March, 1880, to grant time, and the following resolution was 
 adopted ; 
 
 "Resolved, That James McCabe, contesting the right of the Hon. Godlove S. Orth to a seat in this 
 House as a Representative from the Ninth Congressional district of the State of Indiana, be, and he is 
 hereby, authorized to serve upon the said Orth within ten days after the passage of this resolution a 
 particular statement of the grounds of said contest, and that the said Orth be, and he is hereby, required 
 to serve upon the said McCabe his answer thereto in twenty days thereafter, and that both parties be 
 authorized and required to proceed within ten days after the adjournment of this session of Congress to 
 take evidence in the case, in the manner and subject to all provisions of law now in force applicable to 
 the taking of evidence in contested election cases, the same as if the contestant had heretofore proceeded 
 in time to take evidence in support of his claim to the seat." 
 
 By some inadvertence this resolution was never reported to the House, and the House consequently 
 never acted upon it. 
 
 No testimony having been taken during the time allowed by law, and the resolution not having 
 reached the House, whereby testimony might be taken under the order of the House, the case again 
 came up at a meeting of the committee at this session of Congress, during last December. Your com- 
 mittee took the case up for consideration, and it being deemed unnecessary to report the aforesaid 
 resolution to the House for action, because there did not remain sufficient time for the taking and certi- 
 fying of testimony, or for the action of the committee of the House during the remaining time of this 
 Congress, your committee reconsidered its former action, and on the 11th day of January, 1881, passed 
 the following resolution: 
 
 "Resolved, That in view of the short time remaining before the adjournment, and the improba- 
 bility of taking evidence under the statute, the resolution heretofore passed March 23, 1880, in reference 
 to the contest in the case of McCabe v. Orth, be, and is hereby, rescinded, and the contest be, and is 
 hereby, discontinued." 
 
 In view, therefore, of all the circumstances, your committee recommend the passage of the following 
 resolution: 
 
 "Resolved, That the contestant, James McCabe, contesting the right of the Hon. Godlove S. Orth, 
 from the Ninth Congressional district of Indiana, to a seat in the Forty-sixth Congress, have leave to 
 withdraw his papers in said contest, and that the Hon. Godlove S. Orth's title to his seat in the said 
 Congress be, and the same hereby is, confirmed."
 
 § 753 ABATEMENT OF ELECTION CONTESTS. 975 
 
 On February 15, 1881/ the House agreed to the resolution without debate or 
 division. 
 
 753. The Florida election case of Witherspoon v. Davidson in the 
 Forty-seventh Congress. 
 
 A contestant having failed to make up his case legally, filed an affi- 
 davit explaining his failure and asked a special investigation by the 
 House. 
 
 A contestant being apparently unable to perfect his case, the commit- 
 tee recommended that he have leave to ■writhdraw his contest without 
 prejudice. 
 
 On June 6, 1882,- Jklr. A. A. Ranney, of Massachusetts, from the Committee on 
 Elections, submitted the report of the committee in the Florida case of Wither- 
 spoon V. Davidson. 
 
 This was a case where no notice of contest, no answer, and no legally taken 
 evidence came before the committee. Contestant appeared and produced an affi- 
 davit charging gross irregularities and frauds in the election, stating that he caused 
 notice to be duly served of a contest, and further setting forth — 
 
 That he employed as his attorney T. W. Brevard, esq., and paid him $125 as a retaining fee to 
 prosecute his case against his opponent, the said Davidson, and that the said Brevard utterly failed to 
 do so, and betrayed him and sacrificed all his interests in the contest, and your deponent ha-s reason to 
 believe and does believe that the said Brevard entered into collusion with and conspired with Davidson 
 for the purpose of defeating him, deponent, in his contest. He took from him, and declined and refused 
 to return to your deponent, his notice of contest, the answer thereto, and other valuable papers and 
 evidences essential to the successful prosecution of the case. 
 
 He further deposes and says that his witnesses were intimidated and prevented from appearing to 
 testify in his behalf by threats of violence, and of being discharged from labor, and of being ejected from 
 rented lands and houses, and by refusals of stock and implements to cultivate and gather their crops, 
 and other threats of persecution and proscription if they should attempt to testify in behalf of your 
 deponent. 
 
 In proof of these facts your deponent cites particularly a riot instigated in Madison County by the 
 supporters and partisans of the Democratic party for the purpose of intimidating witnesses, at which 
 riot one Patterson was killed, on account of which many arrests were made and the parties cast into jail, 
 which had the effect of intimidating a large number of deponent's witnesses to an extent which made it 
 impossible to induce them to testify in his behalf. 
 
 He further deposes and says that in some cases (that of Christie particularly), the officers of the law 
 before whom appointments were made to take testimony, and where witnesses had been secured at great 
 trouble and expense, the officer failed or refused to attend and hear testimony taken. By these and 
 other methods only known to the lawless and mob-ridden communities of the South your deponent was 
 defrauded out of his election and denied the right of exposing and proving the fraud, under the act of 
 Congress made and provided in such cases. Therefore he prays that a committee be appointed with 
 authority to proceed to Congressional district aforesaid and make a thorough investigation and report 
 on the conduct and result of said election, with the view of ascertaining and determining who was law- 
 fully elected as Representative in the Forty-seventh Congress of the United States from said first district 
 of the State of Florida. 
 
 Sitting Member filed a counter affidavit denying the charges. 
 The report says: 
 
 The committee caused a notice to be sent and delivered to the counsel named in contestant's 
 affidavit, asking him to produce the papers in his hands, but he has omitted and declined to do so, he 
 having taken no notice of the letter sent him, « » « gave to acknowledge the receipt of same. 
 
 ' Record, p. 1604. 
 
 ^ First session Forty-seventh Congress, House Report No. 1278; 2 Ellsworth, p. 163.
 
 976 
 
 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 §754 
 
 Oontestee exhibited to the committee the copies of the notice of contest served upon him and his 
 answer thereto, together with a replication and amended notice, copies of which are annexed 
 (Exhibits A, B^ C), and moved to dismiss the proceedings. It was claimed and it appears that the 
 notice of contest was insufficient and inadequate. It alleges certain frauds very generally, but does 
 not set up or allege that contestant was elected. The replication enlarges the notice, however, and 
 obviates some if not all of the objections. 
 
 The committee are of the opinion that contestant's failure to prosecute his contest arose from the 
 causes which he sets forth in his affidavit. But they see no way of procuring the papers, or of investi- 
 gating the case further, unless the House take the matter in hand and do it in their own way, either by 
 Eending a special committee to Florida to take the evidence or otherwise. 
 
 There is nothing which implicates contestee in any of the wrongful proceedings referred to. 
 
 The committee report the facts, and recommend that the contestant have leave to withdraw his 
 contest without prejudice. 
 
 This report was submitted to the House on June 6.' It was stated that a 
 member of the committee would file minority views, but this does not appear to 
 have been done. Neither does it appear that the report was ever acted on by the 
 House. 
 
 754. The Mississippi election cases of Newman v. Spencer, RatclifE 
 V. Williams, and Brown v. Allen, in the Fifty-fourth Congress. 
 
 Contestant not having filed any testimony, the House confirmed the 
 title of sitting Member. 
 
 The Elections Committee declined to consider an allegation that an 
 election, otherwise unimpeached, was invalid because the constitution of 
 the State was void. 
 
 On April 30, 1896,'' Mr. Samuel W. McCall, of Massachusetts, from the Com- 
 mittee on Elections No. ,3, submitted reports in the Mississippi cases of Newman v. 
 Spencer, Ratcliff v. Williams, and Brown v. Allen. These cases involved a single 
 question, and the reports are very nearly identical. The first report presents the 
 whole of each case: 
 
 In this case no testimony has been presented to the committee. It is alleged that some was taken, 
 but nothing has been filed with the Clerk of the House. The contestant, however, contends that 
 section 241 of article 12 of the constitution of the State of Mississippi, adopted in 1892, is in contravention 
 of the Constitution of the United States and of the act of Congress of February 23, 1870, entitled "An 
 act to admit Mississippi to representation in the Congress of the United States," and has filed a brief 
 in support of his contention. He claims that the above-named section of the State constitution is void, 
 and that therefore no valid election was, or could be, held in the Seventh Congressional district of the 
 State of Mississippi. 
 
 As the committee is of the opinion that a decision that the constitution of the State of Mississippi 
 was invalid would not necessarily deprive the State of representation in Congress, it does not attempt 
 to decide that question, and in absence of any testimony on behalf of the contestant it recommends 
 the adoption of the following resolutions: [Here followed resolutions in the usual form.] 
 
 The resolutions, which confirmed the titles of the sitting Members to the seats, 
 were agreed to by the House on the same day the reports were presented. 
 
 'Journal, p. 1420; Record, p. 4577. 
 
 ^First session Fifty-fourth Congress, House Reports Nos. 1536, 1537, and 1538; Rowell's Digest, 
 p. 541; Journal, p. 440.
 
 § 755 ABATEMENT OF ELECTION CONTESTS. 977 
 
 755. The Texas election case of Davis v. Culberson in the Fifty-fourth 
 Congress. 
 
 A contestant having failed to produce testimony or respond to noti- 
 fication from the Elections Committee, the House confirmed the title of the 
 returned Member. 
 
 On Januarys 30, 1896,' Mr. Samuel W. McCall, of Massachusetts, from the Com- 
 mittee on Elections No. 3, submitted a report in the case of Davis v. Culberson, of 
 Texas. The report says: 
 
 The record in this case consists of the notice of contest, the answer, and an affidavit of David B. 
 Culberson, all of which were filed by the contestee. Since the filing of the notice of contest the con- 
 testant appears to have done nothing in prosecuting his claim to the seat. He has not produced any 
 testimony, and, although twice notified by letter, directed to his place of residence, he has not appeared 
 before the committee. 
 
 In view of these facts, the committee did not believe the right of sitting Member 
 to his seat should longer remain in question and so recommended resolutions 
 confirming his title. 
 
 These resolutions were agreed to on the same day. 
 
 ' First session Fifty-fourth Cbngress, House Report No. 180; Journal, p. 163; Rowell's Digest, p. 529. 
 5994— VOL 1—07 62
 
 Chapter XXV. 
 
 GENERAL ELECTION CASES, 1789 to 1840. 
 
 1. Cases in the First, Third, and Fourth Congresses. Sections 756-764.' 
 
 2. Cases in the Eighth, Eleventh, Thirteenth, and Fourteenth Congresses. Sections 
 
 765-773.^ 
 
 3. Cases from the Sixteenth to the Nineteenth Congresses. Sections 774-777.' 
 
 4. Cases in the Twenty-first, Twenty-second, and Twenty-fourth Congresses. Sections 
 
 778-786.* 
 6. The Senate cases of Smith, Winthrop, Phelps, and Cass. Sections 787-790. 
 
 756. The election case of the New Jersey Members in the First 
 Congress. 
 
 In the First Congress an inquiry as to an election was instituted on a 
 memorial of citizens of the State. 
 
 'Additional cases in this period, classified in different chapters, are: 
 First Congress: Smith, of South Carolina. (Sec. 420.) 
 Second Congress: Jackson v. Wayne, Georgia. (Sec. 708.) 
 Third Congress: White, Southwest Territory. (Sec. 400.) 
 ^ Third Congress: Duvall, Maryland. (Sec. 565.) 
 <- Third Congress: Edwards, Maryland. (Sec. 567.) 
 Fourth Congress: Morris !'. Richards, Pennsylvania. (Sec. 554.) 
 Seventh Congress: Hunter, Mississippi. (Sec. 401.) 
 Seventh Congress: Fearing, Northwest Territory. (Sec. 402.) 
 Seventh Congress: Van Ness. (Sec. 486.) 
 
 ^Additional cases: 
 
 Eighth Congress: McFarland v. Purviance. (Sec. 320.) 
 
 Eighth Congress: Hoge, Pennsylvania. (Sec. 517.) 
 
 Ninth Congress; Spaulding v. Mead, Georgia. (Sec. 637.) 
 
 Tenth Congress: Key, Maryland. (Sees. 432, 441.) 
 
 Tenth Congress: McFarland v. Culpepper. (Sec. 321.) 
 
 Tenth Congress: McCreery, Maryland. (Sec. 414.) 
 
 Eleventh Congress: Turner v. Baylies, Massachusetts. (Sec. 646.) 
 
 Thirteenth Congress: Williams, jr., v. Bowers, New York. (Sec. 647.) 
 
 Thirteenth Congress: Kelly v. Harris, Tennessee. (Sec. 734.) 
 
 Fourteenth Congress: WiUoughby v. Smith, New York. (Sec. 648.) 
 
 Fourteenth Congress: Root v. Adams, Now York. (Sec. 650.) 
 
 Fifteenth Congress: Mumford, North Carolina. (Sec. 497.) 
 
 Fifteenth Congress: Earle, South Carolina. (Sec. 498.) 
 
 Fifteenth Congress: Hammond v. Herrick, Ohio. (Sec. 499.) 
 
 (See page 979 for notes 3 and 4.) 
 
 978
 
 § 756 GENER.Uv ELECTION CASES, 1789 TO 1840. 979 
 
 In the First Congress the House required its Elections Committee to 
 hear testimony and arguments on both sides of the case, and to report facts 
 only to the House. 
 
 On March 23, April 1 and 13, 1789,' the Members-elect from New Jersey 
 appeared and took their seats. On April 8 ' all the Members of the House who had 
 so far attended, including all but one of the New Jersey delegation, took the oath 
 prescribed by a rule which had, vnth other rules, been adopted for governing the 
 proceedings of this, the first House of Representatives.' No objection was made 
 to swearing in the New Jersey Members-elect. 
 
 On April 28 •* the Speaker laid before the House a letter from Matthias Ogden, 
 referring to sundry petitions annexed thereto, from a number of citizens of New 
 Jersey, complaining of illegaUty in the late election of Representatives for that 
 State. Other petitions of a similar purport were presented at various times. These 
 petitions were referred on May 14 to the Committee on Elections, mth instructions 
 to examine the matter thereof, and report the same with their opinion thereupon 
 to the House. 
 
 On May 25^ the committee reported "that it will be proper to appoint a com- 
 mittee, before whom the petitioners are to appear, and who shall receive such proofs 
 and allegations as the petitioners shall judge proper to offer in support of their said 
 petition, and who shall, in like manner, receive all proofs and allegations from per- 
 sons who may be desirous to appear and be heard in opposition to the said petition, 
 and to report to the House all such facts as shall arise from the proofs and allega- 
 tions of the respective parties." 
 
 The House agreed to this report and referred the matter to the Committee on 
 Elections. 
 
 On August 18 ° Mr. George Clymer, of Pennsylvania, from the Committee on 
 Elections, reported six facts which they had ascertained from the proofs. It 
 
 (See p. 978 for references to notes 3 and 4. ) 
 ' Additional cases: 
 
 Sixteenth Congress; Guyon, jr., v. Sage, N^w York. (Sec. 649.) 
 Seventeenth Congress: Colden v. Sharpe, New York. (Sec. 638.) 
 Seventeenth Congress: Lyon i'. Bates, Arkansas. (Sec. 749.) 
 ,,Eighteenth Congress: Bailey, Massachusetts. (Sec. 434.) 
 .^Eighteenth Congress: Forsyth, Georgia. (Sec. 433.) 
 Eighteenth Congress: Biddle t'. Richard, Michigan. (Sec. 421.) 
 Nineteenth Congress: Sergeant, Pennsylvania. (Sec. 555.) 
 
 * Additional cases: 
 
 Twenty-first Congress: Wright, jr., v. Fisher. (Sec. 650.) 
 Twenty-third Congress: Letcher v. Moore, Kentucky. (Sec. 53.) 
 Twenty-third Congress: Allen, Ohio. (Sec. 729.) 
 
 Twenty-fifth Congress: Doty v. Moore, Wisconsin, as to prima facie right, section 569; as to 
 final right, section 403. 
 'First session, First Congress, Journal, pp. 5, 6, 12. 
 ^Journal, p. 11. 
 
 ' The House adopted rules, chose officers, and participated in the count of the electoral vote before 
 the Members were sworn, Journal, pp. 6-10. 
 
 * Journal, pp. 23, 33, 35. 
 ^Journal, p. 41. 
 •Journal, p. 83.
 
 980 PBECEDENTS OF THE HOUSE OF KEPEESENTATIVES. § 757 
 
 appeared from these findings that the returns of the election were canvassed by the 
 governor and council, a majority of whom decided to certify the election of the 
 Members-elect already seated. Three members of the council protested against 
 this act, offering their protest in writing. The grounds of this protest did not 
 appear in the report, nor did the Committee on Elections make any recommenda- 
 tion or depart in any waj' from a statement of facts. 
 
 On July 1 4 ' the committee made a further report stating that certain allega- 
 tions in the petitions required the testimony of some witnesses which the committee 
 did not consider themselves authorized to collect; and that they requested the 
 direction of the House in the manner of proceeding with respect to that testimony, 
 and also with respect to the request of the petitioners that they might be heard by 
 coimsel on the floor of the House. 
 
 757. Case of the New Jersey Members, continued. 
 
 In the First Congress the House, after a committee had reported the 
 facts, decided an election case without further hearing on the floor. 
 
 In the First Congress the House did not think it necessary to hear 
 petitioners in an election case on the floor by counsel. 
 
 A returned Member, whose seat w^as contested in the First Congress, 
 debated the question as a matter of right. 
 
 Reference to the force which should be given to the law of Parlia- 
 ment by the House of Representatives. 
 
 On July 15^ the report was argued on the floor of the House. Mr. Elias Bou- 
 dinot, one of the sitting Members from New Jersey, taking the floor without objection 
 as to his right so to do, submitted that the certificate of the executive of New Jersey 
 was not the best evidence that the nature of the case required, and that it would 
 be unnecessary to send a commission to New Jersey to take testimony, which would 
 have to be ex parte because of the inconvenience of having the opposite party attend 
 to cross-examine. Furthermore the precedent would be dangerous because if 
 followed as to more remote States,^ like Georgia, commissions would have to be sent 
 there, and the House would be precluded from viva voce testimony, which was the 
 most satisfactory. It seemed that the evidence already before the House, and such 
 as might be further advanced by the petitioners by viva voce evidence, would be 
 sufficient for a decision. 
 
 Mr. Richard Bland Lee, of Virginia, urged that the report should be recommitted 
 and that the committee be authorized to send for evidence, papers, and records, 
 and report a special state of facts. He said it was the custom of the British House 
 of Commons, upon similar occasions, to leave the whole business to a committee; 
 and Mr. Lee further observed * that the experience of so old and experienced a 
 legislative body could be followed with safety and propriety. On the other hand, 
 Mr. Samuel Livermore, of New Hampshire, lu-ged that the committee be discharged 
 and that a day be appointed to hear the parties. 
 
 'Journal, p. 60; Annals, p. 637. 
 
 'Journal, p. 61; Annals, pp. 638-642. 
 
 ' The Congress at this time was sitting in New York City. 
 
 * Annals, p. 641.
 
 § 758 GENERAL ELECTION CASES, 1789 TO 18-10. 981 
 
 A motion was made that the parties be permitted to be heard by coimsel and 
 was favored generally by those who favored a trial before the House. Mr. James 
 Madison, of Virginia, favored the admission of coimsel; but the motion was with- 
 drawn without decision. 
 
 The report was considered again on September 1 and 2,' and on the latter day, 
 without having heard coimsel or taken other evidence, the House agreed to this 
 resolution : 
 
 Resolved, That it appears to the House, upon full and mature consideration, that James Schureman, 
 Lambert Cadwalader, Elias Boudinot, and Thomas Sinnickson were duly elected and returned to serve 
 as Representatives for the State of New Jersey in the present Congress of the United States. 
 
 758. The Delaware election case of Latimer v. Patton in the Third 
 Congress. 
 
 The State law having prescribed a form of ballot and voting, the 
 House rejected ballots cast in different form. 
 
 The returned Member being unseated by rejection of informal ballots, 
 the House seated the contestant. 
 
 Discussion in 1793 as to propriety of seating a petitioner after the 
 unseating of the returned Member. 
 
 An early election case instituted by petition and tried before the 
 House. 
 
 On December 4, 1793,' the petition of Henry Latimer, of the State of Delaware, 
 was presented to the House and read, complaining of an imdue election and return 
 of John Patton, to serve as a Member of the House from Delaware. This was later 
 referred to the Committee on Elections. 
 
 On December 13^ Mr. Patton appeared and took the oath. 
 
 On February 10, 1794,* the committee reported. It appeared from this report 
 that the law of Delaware provided ' ' that every person coming to vote for a Eepre- 
 sentative, agreeably to the direction of the said act, shall deliver, in writing, on one 
 ticket, or piece of paper, the names of two persons, inhabitants of the State, one of 
 whom, at least, shall not be an inhabitant of the same county with himself, to be 
 voted for as Representative." 
 
 The returns of the election gave John Patton 2,273 votes and Henry Latimer 
 2,243 votes, a majority of 30 votes for Patton. 
 
 It appeared from the evidence taken by the committee that in some voting 
 places double votes were rejected, and in others single votes were received, which 
 led the committee to this conclusion: 
 
 That, agreeably to the election law of Delaware, the 4 votes in Kent County containing the names 
 of Henry Latimer and George Truit which were rejected ought to have been received and counted for 
 Henry Latimer; and the 68 single votes in Sussex County which were received and counted for the said 
 John Patton ought to have been rejected; that if the aforesaid 4 votes in Kent County had been received, 
 and the aforesaid 68 votes in Sussex County had been rejected, as was required by law, the said Henry 
 
 ' Journal, p. 95; Annals, pp. 834, 835. 
 
 -First session Third Congress, Journal, p. 9. 
 
 'Journal, p. 15. 
 
 * Journal, p. 59; Contested Election Cases (Clarke), p. 69.
 
 982 PEECEDENTS OF THE HOUSE OF KEPRESENTATIVES. § 759 
 
 Latimer would have had, after deducting the 9 single votes received and counted for him in Sussex 
 County, a majority of 33 votes. The committee are, therefore, of opinion that John Fatten is not entitled 
 to a seat in this House; they are also of opinion that Henry Latimer is entitled to a seat in this House an 
 a Representative of the State of Delaware. 
 
 This report, accompanied by certain written observations thereon by the 
 sitting Member, tending to controvert the reasoning and conclusions of the report, 
 was referred to the Committee of the Whole House, where it was considered on 
 February 13,' after which the House agreed to the following: 
 
 Resolved, That the Committee of the Whole House be discharged from proceeding thereon, and 
 that the hearing on the trial of the said contested election be now proceeded on in the House, Mr. Speaker 
 in the chair. 
 
 The House then proceeded to hear the depositions and other exhibits, as well as 
 the written observations of the sitting Member. 
 
 On February 14" the reading of the depositions was concluded, and the parties 
 retired from the bar. 
 
 Thereupon the House agreed to this resolution, apparently without division: 
 
 Resolved, That John Fatten is not entitled to a seat in this House. 
 
 The following resolution was then proposed : 
 
 Resolved, That Henry Latimer is entitled to a seat in this House as the Representative of the State 
 of Delaware. 
 
 Mr. John Page, of Virginia, antagonized this resolution." He said that 
 in the case of Jackson v. Wayne, where corruption was shown, he had favored 
 the seating of the contestant, who had a majority of sound voters, but the House 
 had decided to keep itself free from partiality and had declined to admit the peti- 
 tioner. In this case no corruption was alleged. If the 68 freemen of Sussex had 
 violated the law, he nevertheless did not think that the violation was of such a 
 nature as to deprive them of the right of suffrage. There was no doubt that the 
 majority voted for Mr. Patton, and he should not vote to force on the electors a 
 Representative for whom a majority did not vote. Hence he should oppose the 
 pending resolution. 
 
 The resolution was agreed to, yeas 57, nays 31. 
 
 Mr. Latuner thereupon appeared and took the oath. 
 
 759. The New York election case of Van Rensselaer v. Van Allen in 
 the Third Congress. 
 
 The major part of the votes in a district being honestly given and 
 duly canvassed, the person having a plurality of such major part was 
 held to be elected. 
 
 An early decision that corruption in a small fraction of the votes 
 should not vitiate an election. 
 
 No fraud being shown, votes were counted, although the box was 
 for a time irregularly in the custody of sitting Member. 
 
 A question as to whether the House should reject votes for irregulari- 
 ties not sufficient to cause their rejection under State law. 
 
 1 Journal, p. 62. ^ Journal, p. 63. ' Annals, p. 454.
 
 § 759 GENERAX, ELECTION CASES, 1789 TO 1840. 983 
 
 The committee in 1793 declined to permit a ballot to be impeached by 
 the testimony of the voter after the act of voting. 
 
 On December 6, 1793,' a petition was presented to the House on the part of 
 Henry K. Van Rensselaer, complaining of the undue election and return of John E. 
 Van Allen, as a Member from the State of New York, and giving the follo^\^ng 
 grounds therefor: 
 
 1. That in Stephentown, which is comprehended within the election district 
 from which the said Jolm E. Van Allen is returned, there were more votes actually 
 given for the petitioner than appear, from the return of the committee who were 
 appointed by law to canvass and estimate the votes, to have been canvassed and 
 counted. 
 
 2. That in the town of Hosack, also included in the said district, the ballot 
 box was not locked agreeably to law, but was only tied with tape. 
 
 3. That, at the time of the election, the said Jolm E. Van Allen, who was 
 not an inspector of the election, had in liis possession the ballot box of the town 
 of Rensselaerwick, which is also comprehended in the said district. 
 
 On December 9 and 18 ' the Committee on Elections reported the following: 
 
 It appeals to your committee that the allegations in regard to Stephentown, viz, "that the 
 petitioner had a greater number of votes in the said town than was returned to be estimated and 
 canvassed," even if proved, would not, consistently with the law of the State of New York, be sufficient 
 to set aside the votes given at the election in the said town; that even should the irregularities complained 
 of with respect to the elections of the towns of Hosack and Rensselaerwick, be sufficient to set aside the 
 votes given in the said towns, still it appears that the said John E. Van Allen has a majority of the 
 remaining votes of the district composed of the counties of Rensselaer and Clinton. 
 
 On December 20,^ Mr. Richard Bland Lee, of Virginia, speaking for the Elections 
 Committee, stated the following summary of the questions arising: 
 
 1. Whether irregularities not deemed by the law of New York sufficient to nullify the votes given 
 shall be regarded by the House of Representatives as having that effect? None of the irregularities 
 were regarded by the law of New York as sufficient to vitiate the returns of votes made by the inspectors, 
 who are sworn officers, and subject to pains and penalties for failure of duty. If the law of New York 
 is to be observed as a sovereign rule on this occasion, the allegations do not state any facts so material 
 as to require the interference of the House of Representatives. 
 
 2. Whether, setting aside this first principle, mere irregularities not alleged to have proceeded 
 from corruption shall nullify the return of sworn officers; and whether the House of Representatives 
 ought to countenance and inquire into the mere implications of such serious crimes as perjury and 
 corruption, or should require such charges to be expressly and specifically made? 
 
 3. Whether it is or not an indispensable requisite to the existence of a representative government 
 that at every election a choice should be made? 
 
 4. Whether, to insure such choice, it is not necessary that this principle should be established: 
 That a majority of legal votes, legally given, should decide the issue of an election? 
 
 5. Whether, therefore, partial corruption should be deemed sufficient to nullify an election, or 
 only sufficient to vitiate the votes given under such corruption, leaving the election to be decided by 
 the sound votes, however few? 
 
 6. Whether, if partial corruption should [not] be deemed sufficient to nullify an election, such 
 corruption should not extend to the major part of the votes given, and if the major part of the votes 
 be deemed sound, the fate of the election should not depend on the plurality of votes in such major part? 
 
 ' First session Third Congress, Contested Elections in Congress, from 1789 to 1834, p. 73; Journal, 
 p. 13. 
 
 ^ Journal, pp. 14, 17. 
 ' Annals, p. 146.
 
 984 PRECEDENTS OF THE HOUSE OF EEPEESENTATIVES. § 760 
 
 Mr. Lee declared that the last was the opinion of the committee, and finding 
 a major part of the votes duly given and canvassed, and that Mr. Van Allen had a 
 plurality of such major part, they had determined that he was duly returned. 
 
 Objection was made that the House possessed the exclusive right to judge of 
 the elections and returns of its own Members, and that the law of New York should 
 not operate to exclude from the knowledge of the House the full amount of the 
 number of votes given. The House should ascertain with precision the actual 
 state of the polls. If the votes of citizens could, under any pretext, be suppressed 
 the essential rights of suffrage were at an end. 
 
 On behalf of the committee it was stated that the action of the returning officers 
 of towns in rejecting some votes given in for petitioners was in accordance with 
 the law of New York. The petitioner stated that numbers of persons had sworn 
 that they had voted for petitioner, although it appeared that their votes 
 were not coimted. The committee did not consider tliis allegation proper to 
 engage their attention, and it was presumed that the House of Representatives 
 would never institute an inquiry into such a species of evidence. It was extremely 
 difficult for a man to swear that he had positively voted by ballot for a particular 
 candidate, since it was well known that persons sometimes became confused and 
 cast the wrong ballot. The law of New York justifying the rejection of the votes 
 had been passed under the sanction of the Constitution. 
 
 It was also urged against the report that corruption should not be considered 
 by weight and measure, and that admitted irregularities should vitiate an election. 
 
 The committee felt that, in a district of ten towns, irregularities in two towns 
 should not vitiate the election, when the voters in those two towns did not amount 
 to a majority of the whole number of votes in the district. 
 
 With respect to the deposit of a box containing a part of the votes in the 
 house of sitting Member, the committee did not give it weight, since it had not been 
 shown that the votes were tampered with, and the petitioner had not charged 
 that sitting Member was accessory to any unfair practices. 
 
 On December 24,' the House refused to recommit the report, and then agreed to 
 the following: 
 
 Resolved, That the allegations of the petition do not state corruption nor irregularities of sufficient 
 magnitude, under the law of New York, to invalidate the election and return of John E. Van Allen to 
 serve as a Member in this House, and that therefore the said John E. Van Allen is duly elected. 
 
 760. The Virginia election case of Trigg v. Preston in the Third 
 Congress. 
 
 The House, overruling its committee, declined to invalidate a close 
 election because of an interference, not shown definitely to have been 
 effective, by a body of United States troops. 
 
 The negativing of a resolution declaring a sitting Member not elected 
 left him undisturbed in his seat. 
 
 An early election case instituted by petition and tried before the 
 House. 
 
 'Journal, p. 20.
 
 § 761 GENERAL ELECTION CASES, 1789 TO 1840. 985 
 
 In 1794' the seat of Francis Preston, of Virginia, was contested by Abraham 
 Trigg, whose petition was presented December 26, 1793,' and referred to the Com- 
 mittee on Elections. 
 
 The committee's examination of the case showed that the sheriff holding the 
 election in one countj- had exercised a discretionary^ power, given him by the law 
 of Virginia, of closing the poll at any time of day, after three proclamations and no 
 voters appearing. In another county the sheriff exercised the same discretionary 
 power, vested in him by the law of the State, to adjourn the election m consequence 
 of rain. 
 
 These facts, which militated in favor of the sitting Member, were not, however, 
 the portion of the case most in controversy. In Montgomery County the election 
 had been disturbed by a body of United States troops, not showTi to have been under 
 arms, but marched about under command of Capt. WilUam Preston, their officer 
 and brother and election agent of the sitting Member, and who was armed with 
 sword and dagger. The committee were unable to ascertain, from the conflicting 
 testimony, that any voter was actually prevented from voting, yet there was 
 reasonable ground to believe that some were, and that the election was imduly 
 biased by the soldiers. As the petitioner lost his election by only 10 votes, the 
 committee concluded that the result had been changed, and that Mr. Preston was 
 not entitled to his seat. The committee stated that the soldiers were not disfranchised 
 of the right of votmg, but that their votes, which were for the sitting Member, were 
 kept separately and afterwards were rejected by the returning officers. 
 
 After debate the House, without division, decided in the negative this resolution: 
 
 Resolved, That Francis Preston is not duly elected a Member of this House. 
 
 This decision confirmed the sitting Member, no question apparently being 
 made as to the effect of the vote.^ 
 
 This election case was tried before the House after the forms in the cases of 
 Jackson v. Wayne and Latimer v. Pat ton. ^ 
 
 761. The Vermont election case of Lyon v. Smith in the Fourth 
 Congress. 
 
 Notices of election having failed to reach two towns in a district, and 
 no votes being cast in those towns, the House declined to aflirm sitting 
 Member's title without direct evidence as to the numbers of voters in the 
 towns. 
 
 The House declined to reverse a return on the possibility, but not the 
 probability, that the voters of two towns accidentally not included in 
 the notice of election might have changed the result had they voted. 
 
 On December 8, 1795,^ a petition was presented to the House from Matthew 
 Lyon, complaining of an undue election and return of Israel Smith, to serve as a 
 
 ' First session Third Congres!?, Contested Elections in Congress, from 1789 to 1834, p. 78. 
 
 '^Journal, p. 21. 
 
 'Journal, p. 134; Annals, p. G13. 
 
 < Journal, pp. 133, 134. 
 
 ' First session Fourth Congress, Journal, p. 369.
 
 986 
 
 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 §761 
 
 Member from the State of Vermont. This petition was referred to the Committee 
 on Elections. On December 25 ' the Speaker laid before the House a letter from 
 Matthew Lyon transmitting further testimony, which was referred to the Committee 
 on Elections. 
 
 On January 27, 1796,^ Mr. Abraham Venable, of Virginia, submitted the report 
 of the committee, which showed that the first election in the district in question did 
 not result in a choice. Thereupon a new election was ordered, and warrants were 
 issued for a new election. The sheriff of the coimty of Addison failed to deliver the 
 warrant to the towns of Kingston and Hancock, which in the first election had given 
 votes as follows: Kingston, 12 for Israel Smith; Hancock, 3 for Matthew Lyon. At 
 the second election in the district the vote returned was: For Israel Smith, 1,804; 
 Matthew Lyon, 1,783. Therefore the committee concluded: 
 
 That as it does not appear to the satisfaction of the committee that there was a sufficient number 
 of freemen in those two towns to have altered the state of the election, fifteen only having voted on the 
 first occasion, they are of opinion that Israel Smith is entitled to take his seat in this House. 
 
 On February 4^ Mr. Uriah Tracy, of Connecticut, moved that the report be 
 recommitted in order that the petitioner might have the opportunity to bring for- 
 ward legal testimony. It appeared that all of petitioner's testimony had been taken 
 ex parte, and therefore had not been considered by the committee, which had based 
 its conclusions on the returned votes of the two towns at the preceding election. 
 
 On February 11, 12, and 15* the motion to recommit was debated at length. 
 It was urged that the petitioner should have sent competent testimony, and that it 
 was not the business of the House to hunt up evidence. On the other hand, it was 
 urged that the House had adopted no regulations concerning the taking of testimony, 
 and the petitioner had no power to take anything but ex parte testimony. It was 
 also intimated that the sheriff acted with fraudulent intent. The consideration of 
 the subject was finally postponed until March 29. 
 
 On February 16,^ however, Mr. James Hillhouse, of Connecticut, proposed a 
 rule for taking testimony in election cases, with a view to its applicability to the 
 pending contest, but the matter was postponed. 
 
 On February 17" the House reconsidered its decision to postpone the case of 
 the petitioner, and recommitted the report. 
 
 On March 29' the petitions of sundry electors and citizens of the towns of 
 Kingston and Hancock, stating that they had been deprived of their right of voting, 
 etc., were received and referred to the Committee on Elections. 
 
 On May 13' Mr. Venable submitted the second report of the Committee on 
 Elections. This report was as follows: 
 
 That it appears by the deposition of the town clerk of Hancock that there were 17 persons in the 
 said town who were entitled to vote ; 12 of whom are stated to have been admitted in that town and 5 in 
 other towns 
 
 That, by a like deposition of the clerk of Kingston, it appears that there were in that town 19 persons, 
 17 of whom had been qualified in that town, and 2 in other towns. 
 
 'Journal, p. 386. 'Journal, p. 444; Annals, p. 331. 
 
 ^Journal, p. 429; Contested Election Cases, Clarke, p. 102. "Journal, p. 446; Annals, p. 338. 
 ' Annals, p. 295. ^ Journal, d. 486. 
 
 •• Annals, pp. 315-328. 
 
 "Journal, pp. 555, 597; Annals, p. 1497.
 
 I 762 GENEEAL ELECTION CASES, 1789 TO 1840. 987 
 
 That it does not appear that the warrants were withheld from the said towns by the sheriff from 
 any fraudulent intention, but the failure was accidental as to the town of Kingston, and the warrant was 
 not sent to the town of Hancock because the sheriff believed they had not voted at the first meeting. 
 
 On May 31 ' the following resolution was proposed: 
 
 Resolved, That as there appears to have been a suflBcient number of qualified voters in the towns 
 of Kingston and Hancock to have changed the state of the election, Israel Smith was not duly elected. 
 
 This was advocated on the grounds that there were voters enough in the two 
 towns to have changed the election, and also because the principle should be estab- 
 lished that every to^vn should have notice of election. 
 
 On the other hand, the possibility, but not the probability, that the 36 voters 
 in the two towns would have changed the election, was admitted. Against his, 
 however, was balanced the vote in the previous election, and the fact that Mr. Lyon 
 could only bring twenty to declare that they would vote for him. Had those twenty 
 voted for him, and none for Mr. Smith, the latter would have a majority of one vote. 
 But seven had made affiadavit that they would have voted for Mr. Smith. 
 
 The House disagreed to the resolution, yeas 28, nays 41. Then it was: 
 
 Resolved, That Israel Smith is entitled to a seat in this House as one of the Representatives from 
 the State of Vermont. 
 
 762. The Virginia election case of Bassett v. Clopton in the Fourth 
 Congress. 
 
 The House having deducted from the returns the number of votes 
 cast by disqualified persons, awarded the seat to the candidate receiving 
 the highest number of votes cast by qualified voters. 
 
 On January IS, 1796,^ the Committee on Elections reported as follows in the 
 Virginia contested election case of Bassett v. Clopton, holding: 
 
 That, upon an estimate of all the polls taken at the several elections, John Clopton had 432 votes, 
 and Burwell Bassett 422. 
 
 That, out of the number of persons who voted for John Clopton, 37 were unqualified to vote; and 
 of those who voted for Burwell Bassett, 33 were also unqualified to vote. 
 
 Whereupon, your committee are of opinion that John Clopton, who has the highest number of 
 votes, after deducting the before-mentioned defective votes from the respective polls, is entitled to a 
 seat in this House. 
 
 In this report the House concurred. 
 
 763. The Massachusetts election case of Joseph Bradley Varnuna in 
 the Fourth Congress. 
 
 Instance of an election case instituted by memorial from sundry citi- 
 zens and electors of the district. 
 
 In an election case where it is alleged that votes have been cast by 
 persons not qualified, the names of such persons should be given in the 
 notice of contest. 
 
 In an election case an allegation that a certain number of votes were 
 
 'Journal, p. 597; Annals, p. 1497. 
 
 ' First session Fourth Congress, Contested Elections in Congress, from 1789 to 1834, p. 101.
 
 988 PEECEDENTS OF THE HOUSE OF KEPEESENTATIVES. § 763 
 
 cast by proxy was conceded suflaciently certain without specification of the 
 
 names. 
 
 The House declined to assist sundry petitioners in a district to col- 
 lect testimony in proof that the seat of a returned Member should be 
 declared vacant. 
 
 Certain petitioners against the right of a returned Member to his seat 
 having impugned his personal conduct in the election, the House rendered 
 a decision thereon. 
 
 On February 25 and 26, 1796,* memorials were presented from sundry citizens 
 and electors of the Second middle district in Massachusetts, whose names were 
 thereunto subscribed, complaining of an undue election and return of Joseph Bradley 
 Vamum, returned as a Member of the House from the said district, and praying, for 
 certain reasons stated in the memorials, that the seat be declared vacant. These 
 memorials were referred to the Committee on Elections. On March 9,- Mr. Theodore 
 Sedgwick, of Massachusetts, presented certain testimony in the case, which was also 
 referred. 
 
 On March 15^ Mr. Abraham Venable, of Virginia, submitted the report of the 
 committee. The report stated that Aaron Brown, a petitioner, had filed a paper 
 making the following specifications: 
 
 1. That 185 votes were returned by the selectmen of Dracut, and counted by the governor and 
 council. 
 
 2. That, of those, 60 were illegal and bad, 55 ballots or votes being received and certified by the 
 selectmen or presiding officers, of whom Joseph Bradley Varnum, esq., was one, which were given by 
 proxy; that is, from persons who were not present at the meeting, but from other persons who pretended 
 to act for them; and 5 votes were received and certified by the said presiding officers, which were given 
 by persons by law not qualified to vote at said meeting. 
 
 3. If Mr. Vamum does propose to examine the proceedings at the meetings of any other towns in 
 the district, the petitioners wish to reserve liberty of showing that votes given for Mr. Varnum in any 
 other town in the district were illegal. 
 
 The petitioners expect to prove that the above 60 illegal votes were received by the selectmen, by 
 showing that the whole number of legal voters was not more than 225, of which number 100 did not attend 
 the meeting on the 23d day of March last; and a part of those who did attend and vote were not legally 
 qualified to vote. 
 
 The committee also reported that there was a requisition of the sitting Member 
 that the petitioners be held to a specification of the names of the persons objected to, 
 and the objection to each, and a notification thereof to the sitting Member before he 
 should be compelled to take evidence concerning the matters alleged, or make aay 
 answer thereto. Therefore, the committee asked the instructions of the House as to 
 the kind of specifications to be demanded of the petitioners, and the manner in which 
 the evidence should be taken. 
 
 This report was debated at length in Committee of the Whole. It was urged 
 that as Mr. Vamum had a majority of only 1 1 votes, the election would be invalidated 
 if 23 of the 60 votes charged to be illegal were really proven to be so. It had been 
 impossible to get the names of the illegal voters in Dracut, as the town clerk had 
 
 ' First session Fourth Congress, Journal, pp. 450, 451. 
 
 ^Journal, p. 468. 
 
 = Journal, pp. 471, 472; Contested Election Cases, Clarke, p. 112; Annals, p. 823.
 
 § 764 GENEEAL ELECTION CASES, 1789 TO 1840. 989 
 
 refused to give certified copies of his records, and the inhabitants of the town would 
 not give information against Mr. Varnum. 
 
 On the other hand it was argued that to give the power to take testimony would 
 be to make the House a party to a search for testimony, a practice which would 
 result in harassment to Members. 
 
 Mr. Varnum was heard as a matter of course during the debate. 
 
 The Committee of the Whole agreed to and reported the following resolutions, 
 which were agreed to by the House on that day:' 
 
 Resolved, That the allegation of Aaron Bro\vn, agent of the petitioners, as to 55 votes given by proxy 
 is sufficiently certain. 
 
 Resolved, That the allegations of said Aaron Brown, as to persons not qualified to vote, is not suffi- 
 ciently certain: and that the names of the persons objected to for want of sufficient qualifications, ought 
 to be set forth, prior to the taking of testimony. 
 
 Mr. Sedgwick had proposed in Committee of the Whole a resolution providing 
 that the Committee on Elections should prescribe a method of taking testimony in 
 this case, but it was not acted on." 
 
 On January 19, 1797,' at the next session, the committee reported: 
 
 That none of the petitioners or their agents have appeared at the present session to prosecute, nor 
 have they transmitted any evidence to support their allegations. 
 
 That the sitting Member has produced evidence to show that the election in the town of Dracut, 
 where the irre^larities were suggested to have been committed, was conducted with the utmost fairness 
 and propriety, especially as it relates to his conduct. That, although some little irregularity was 
 practiced, it was in other towns, in favor of another candidate, and chiefly by those persons who have 
 since been the active agents of the petitioners. 
 
 Your committee are therefore of opinion that Joseph Bradley Varnum was duly elected, and that 
 the attempt to deprive him of his seat was rather the effect of malevolence than a desire to promote 
 the public good. 
 
 On January 25," by a vote of yeas 44, nays 28, the last clause of the last 
 paragraph, characterizing the attempt as the effect of malevolence, was stricken 
 out and the following inserted: 
 
 and that the charges contained in the said petitions against the sitting Member are wholly unfounded, 
 and that the conduct of the sitting Member appears to have been fair and unexceptionable throughout 
 the whole transaction. 
 
 On January 26' the report as amended was agreed to. 
 
 764. The Pennsylvania election case of David Bard in the Fourth 
 Congress. 
 
 A failure of the canvassing board to meet within the time required by 
 law being satisfactorily explained, was held by the House not to affect the 
 Member's title. 
 
 Instance of an inquiry into a Member's title to his seat by the Elec- 
 tions Committee under authority of general investigations. 
 
 In the earlier practice the credentials of Members were passed on by 
 the Elections Committee (footnote). 
 
 ' Jouraal, p. 487. 4 Journal, pp. 659, 660. 
 
 = Annals, p. 823. 5 Journal, p. 661. 
 
 ' Second session Fourth Congress, Journal, p. 650.
 
 990 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 765 
 
 On March 18, 1796/ the Committee on Elections, who had investigated ex officio 
 the credentials ^ of David Bard, of Pennsylvania, found that the Member's title was 
 not invalidated by reason that the county judges, who were required by State law 
 to meet November 15 to canvass the vote, had actually not met until May 1 follow- 
 ino'. This informality was occasioned by the delay of a return of the soldier votes 
 of one county and by failure of one county judge to be informed as to a change 
 of the law providing for the meeting of the judges. The committee sent for and 
 canvassed the coimty returns on which the district return had been based, and 
 reported to the House the result, showing the election of Mr. Bard. 
 
 The House agreed to the report, confirming the title of Mr. Bard. 
 
 765. The Virginia election case of Moore v. Lewis in the Eighth 
 Congress. 
 
 The House having deducted from the returns the number of votes 
 cast by disqualified persons, awarded the seat to the candidate receiving 
 the highest number of votes cast by qualified voters. 
 
 The House in 1803 permitted a contestant in an election case to be 
 heard by counsel at the bar of the House. 
 
 On February 24, 1803,^ on the subject of the contested election of Moore v. 
 Lewis, from Virginia, the Committee on Elections made a report containing the 
 following summary: 
 
 That all the persons who voted for Thomas Lewis in the several counties aforesaid, which compose 
 the western district of the State of Virginia, were 1,004, and that all the persons who voted for Andrew 
 Moore in the said counties were 832. 
 
 It further appears, on a deliberate scrutiny, that of the above votes 355 persons voted for Thomas 
 Lewis who were unqualified to vote and that 124 voted for Andrew Moore who were unqualified to 
 vote; and that, by deducting the unqualified votes from the votes given for each of the parties at the 
 elections, Thomas Lewis has 649 good votes and Andrew Moore has 708 good votes, being 59 votes more 
 than Thomas Lewis. 
 
 Therefore the committee were of the opinion that Thomas Lewis was not 
 elected and not entitled to his seat, and that Andrew Moore, who had the highest 
 number of votes after deducting the unqualified votes, was duly elected and entitled 
 to the seat. 
 
 The House on March 1 confirmed the first proposition of the committee by 
 a vote of yeas 68, nays 39. The second proposition was also agreed to; yeas 64, 
 nays 41. 
 
 Mr. Moore thereupon took his seat.* 
 . 1 
 
 ' First session Fourth Congress, Contested Elections in Congress from 1789 to 1834, p. 116; Journal, 
 pp. 474, 475. 
 
 - The credentials of Members were referred and examined at this time by the Elections Committee 
 under authority of a resolution usually adopted at the first of each Congress, and for this Congress in 
 form as follows: 
 
 Resolved, That a standing Committee on Elections be appointed, whose duty it shall be to examine 
 and report upon the certificates of election or other credentials of the Members returned to serve in this 
 House, etc. (First session Fourth Congress, Journal, p. 366.) 
 
 ' First session Eighth Congress, Contested Elections in Congress from 1789 to 1834, p. 128. 
 
 * Leave was granted to the memorialist and sitting Member to be heard by counsel at the bar of 
 the House. (Journal, pp. 609, 615.)
 
 § 766 GENERAL ELECTION CASES, 1789 TO 1840. 991 
 
 766. The election case of Randolph v. Jennings, from Indiana Terri- 
 tory, in the Eleventh Congress. 
 
 The House, overruling its committee, declined to unseat a returned 
 Delegate because in calling the election the governor had exercised 
 doubtful authority. 
 
 On January 12, 1810,' the House came to a decision in the contested election 
 case of Randolph v. Jennings, from the Territory of Indiana. 
 
 It was alleged in this case that there were informalities in the return of the vote, 
 that two districts, by fault of a sheriff, did not vote, and finally that the authority 
 under which the election was called by the governor was defective. The committee 
 reported only on the last objection, which they conceived to be fundamental, and 
 they found that, by reason of defective legislation of Congress, the governor did not 
 have full authority to do what he had assumed to do. The committee state the 
 case thus: 
 
 If the governor of the Indiana Territory, instead of exercising the legislative authority of Congress 
 on what he supposed a liberal construction of the law, had represented the case to Congress at the last 
 session the defect would have been supplied and the Territory now legally represented in Congress. 
 It can not be admitted that the governor of a Territory may, by his own authority, supply a want or 
 defect of a law of Congress on his own opinion of a liberal construction, expediency, or necessity. To 
 sanction such an assumption of power by a vote of this House would set a dangerous precedent. On 
 this view of the subject the committee submit the following resolution: 
 
 Resolved, That the election held for a Delegate to Congress for the Indiana Territory, on the 22d of 
 May, 1809, being without authority of law, is void, and consequently the seat of Jonathan Jennings, as a 
 Delegate for that Territory, hereby declared to be vacant. 
 
 A motion in the House to strike out the words "being without authority of 
 law," was negatived, 51 to 45. 
 
 The House, after debate, nonconcurred in the report of the committee, by a 
 vote of 83 to 30. 
 
 A resolution was then proposed declaring Mr. Jennings entitled to his seat. 
 
 The motion was withdrawn after debate. 
 
 Mr. Jennings therefore retained the seat. 
 
 767. The first election case of Taliaferro v. Hungerford, from Vir- 
 ginia, in the Twelfth Congress. 
 
 The House, overruling its committee, concluded to decide an election 
 case as made up without giving sitting Member time for further 
 investigation. 
 
 The House, having corrected the returns by an ascertainment of the 
 qualifications of certain voters, seated the contestant in accordance with 
 the findings. 
 
 On November 21, 1811,^ the Committee on Elections reported on the Virginia 
 contested election case of Taliaferro i\ Hungerford. The committee found that 
 according to the laws of Virginia the land list of the year prior to the election was 
 prima facie evidence of all the freeholders in the county. A correction of the poll 
 in accordance with the land list was made by the committee, and resulted in such 
 
 ' Second session Eleventh Congress, Contested Elections in Congress from 1789 to 1834, p. 240; 
 Journal, pp. 171, 172; Annals, p. 1199. 
 
 ^ First session Twelfth Congress, Contested Election Cases in Congress, from 1789 to 1834, p. 246.
 
 992 PKECEDENTS OF THE HOUSE OF BEPBESENTATIVES. § 768 
 
 changes that in the district the majority of six votes for the sitting Member was 
 changed to a majority of 121 for Mr. Tahaferro. 
 
 The committee, however, conceived that a longer time should be given the 
 sittino- Member to investigate the facts, the land-hst test not being considered con- 
 chisive. The contestant had filed notice of contest in ample time; but his purpose 
 to follow up the notice with actual steps to contest had not, the committee thought, 
 been developed in time to allow the sitting Member to complete his case. 
 
 The House, by a vote of 46 to 65, disagreed to the recommendation of the 
 committee. 
 
 Then, by a vote of 67 to 29, Mr. Hungerford was declared not entitled to the 
 seat; and by a vote of 66 to 19, Mr. Taliaferro was declared entitled to the seat. 
 Mr. Taliaferro thereupon appeared and qualified. 
 
 768. The second election case of Taliaferro v. Hungerford, from Vir- 
 ginia, in the Thirteenth Congress. 
 
 The House, overruling its committee, declined to reject returns 
 because of irregular making up of poll books and returns, no fraud being 
 charged. 
 
 On June 10, 1813,' the Committee on Elections reported in the second contest of 
 Taliaferro v. Hungerford, from Virginia. The committee in this report found that 
 the election was illegal and John P. Hungerford was not entitled to the seat, because 
 of neglect on the part of certain election officers to comply with the law of Virginia, 
 which directed that "the clerks of the polls shall enter in distinct columns, under the 
 name of the person voted for, the name of each elector voting for such person." The 
 law further directed that "the clerks of the polls having first signed the same and 
 made oath to the truth thereof, a certificate of which oath, under the hand of the 
 magistrate of the county, shall be subjoined to each poll, shall deliver the same to 
 the sheriff," etc. 
 
 The committee found numerous deviations from this law, in one county the 
 names of the voters being all entered in one column, while figures were placed under 
 the names of the candidates to show for whom each person's vote was given. In 
 another county the names of the voters were entered in the same way, straight marks 
 instead of figures being carried into the columns under the names of the candidates. 
 In other counties, four in all, no certificate was found of any oath administered to 
 the clerks of the polls. In one county the Christian name of the candidate was not 
 written on the poll, the initial only being given. 
 
 The sitting Member contended that these deviations were sanctioned by long 
 practice. 
 
 The committee, however, were sensible that trivial errors of officers conducting 
 elections should not deprive any class of citizens of representation. But "to pre- 
 serve the elective franchise pure and unimpaired, the positive commands and 
 requirements of the law, in respect to the time, place, and manner of holding elec- 
 tions, ought to be observed. To enter the names of the voters promiscuously in 
 one margin of the poll book, when the law positively directs them to be 'entered in 
 distinct columns' and 'under the name of the candidate voted for,' is as manifest a 
 
 ' First session Thirteenth Congress, Contested Elections in Congress, from 1789 to 1834, p. 250.
 
 § 769 GENERAL ELECTION CASES, 1789 TO 1840. 993 
 
 departure from the law as the selection of another time or another place than that 
 mentioned in the law. Nor can the committee conceive that the prefixing the initial 
 only of the Christian name to that of the family or surname of the voter is a fair com- 
 pliance with the spirit and intent of the law." 
 
 The House, by a vote of 78 to 82, refused to agree to the recommendation of the 
 committee, and on June 16, the report was recommitted. 
 
 On June 28 the committee again reported, in this case their report dealing 
 with the comparison of the poll with the land list; but the committee concluded 
 that this land list was not a conclusive test of the legahty of the poll under the 
 Virginia law, and that testimony might be admitted to impeach it. Therefore 
 they held that in this respect the petitioner had not sustained his contention. 
 
 On July 31, 1813, the case was postponed imtil the next session of Congress, 
 when it was again referred to the Committee on Elections. On January" 10, 1814, 
 the committee reported that after mature consideration they had come to the 
 conclusion — 
 
 That this election is void, and ought to be set aside, because it was conducted in an irregular 
 manner, contrary to the law of Virginia prescribing the manner of conducting such elections, as is 
 more particularly set forth in the first report. 
 
 The committee therefore proposed that the "said election was illegal and 
 ought to be set aside;" and "that John P. Himgerford is not entitled to a seat in 
 this House." 
 
 On February 1, 1814, the Committee of the Whole reported their disagreement 
 to these propositions, and on February 17 the House concurred vriih the Committee 
 of the Wliole. So Mr. Hungerford retained the seat. 
 
 769. The Virginia election case of Bassett v. Bayley in the Thir- 
 teenth Congress. 
 
 Form of resolution confirming the title of sitting Member to his seat. 
 
 A sheriff having adjourned an election for a reason not specified as a 
 cause of adjournment, the Elections Committee rejected votes cast after 
 such adjournment. 
 
 On February- 11, 1814,' the House, in the contested election case of Bassett v. 
 Bayley, of Virginia, agreed to the following resolution, reported from the Committee 
 on Elections on February 2 : 
 
 Resolved, That the sitting Member is entitled to his seat. 
 
 The committee arrived at this result by deducting from the vote as originally 
 returned those votes illegally given, a process which still showed a majority for the 
 sitting Member. 
 
 The largest deduction was one of 53 votes from the total of the sitting Member. 
 This deduction represented the votes cast on the second and tliird days of the 
 election in Accomac County. The law of Virginia allowed the continuance of a 
 poll by the officer in charge beyond the first days in cases where a rain had fallen, 
 where there had been a rise of the water courses, or where more electors attended 
 than could vote in one day. The committee found that none of these conditions 
 
 ' First session Thirteenth Congress, Contested Elections in Congress, from 1789 to 1834, p. 2.54. 
 5994 — VOL 1 — 07 6.3
 
 994 
 
 PRECEDENTS OF THE HOUSE OF KEPEESENTATIVES. 
 
 § 770 
 
 prevailed and that the action of the sheriff was illegal. Therefore they recom- 
 mended the deduction of the votes cast on the second and third days. But such 
 deduction was not sufficient to destroy the majority of the sitting Member. 
 
 This case had first been reported June 3, 1813, when a further examination 
 of evidence was recommended. The House recommitted the report, with the 
 result that the subject went over to the next session. 
 
 770. The Virginia election case of Porterfield v. McCoy in the Four- 
 teenth Congress. 
 
 Having deducted from the poll all the votes illegally given, the House 
 confirmed the title of sitting Member, who had a majority of legal votes. 
 
 In a report sustained by the House, the Elections Committee declined 
 to reject testimony not taken according to the practice established by 
 State laws. 
 
 No fraud or injury being alleged, the Elections Committee declined 
 to reject a poll because of neglect of the election ofiicers to take the 
 required oath. 
 
 The Elections Committee, in a sustained case, declined to reject a poll 
 because of informalities in the poll books and return. 
 
 On February 19, 1816,' the Committee on Elections, to whom was referred the 
 Virginia contested election case of Porterfield v. McCoy, reported that after deduct- 
 ing from the poll on both sides the votes illegaly given, they found that the sitting 
 Member had a majority of 75 over the petitioner. 
 
 In the determination of this case the committee made certain rulings, which 
 they reported to the House. 
 
 The sitting Member had objected to the testimony of the petitioner on the 
 ground that it had not been taken within the period limited for that purpose in 
 contested elections for members of the Virginia legislature, and because the peti- 
 tioner had made the unreasonable delay of four months in conmmecing investiga- 
 tion. The committee overruled these objections and admitteed the testimony. 
 
 The petitioner objected that the clerks appointed by the sheriff to keep the 
 poll were not sworn previous to the commencement of the voting, but on the next 
 day examined and subscribed the poll and made affidavit to its truth and correct- 
 ness. The committee overruled tliis objection, the testimony showing that the 
 clerks conducted the election under the impression that they would be sworn at the 
 close, in accordance with the custom of the county. 
 
 The petitioner further objected that the names of the voters were not written 
 under the names of the candidates, but in a single column, with the votes carried 
 forward and marked under the names of the candidates. The committee overruled 
 this on the gromid of prevailing custom. 
 
 771. The case of Porterfield v. McCoy, continued. 
 
 An agreement of parties as to the admissibility of votes was over- 
 ruled by the Elections Committee on the ground that the elective franchise 
 might not be qualified by such agreement. 
 
 The Elections Committee, in a sustained case, ruled that all votes 
 
 ' First session Fourteenth Congress, Contested Elections (Clarke), p. 267.
 
 § 772 GENERAL ELECTION CASES, l^SO TO 1840. 995 
 
 recorded on the poll lists should be presumed good unless impeached by 
 evidence. 
 
 In a sustained case, the Elections Committee admitted as proof of his 
 title to vote the voter's properly taken affidavit. 
 
 The committee also overniled the request of the sitting Member that he be 
 allowed to avail himself of an agreement entered into ^\^th the petitioner as to the 
 admissibihty of certain votes, the committee being of opimon that an agreement 
 of parties could not diminish or enlarge the elective franchise. 
 
 The committee further decided — 
 
 1. That aU votes recorded on the poU lists should be presumed good unless impeached by evidence. 
 
 2. That certified copies of the commissioner's books or land lists should be read in evidence, and 
 deemed satisfactorj' as to the qualification or disqualification of voters, unless corrected by other evidence- 
 and ' 
 
 3. That the affidaNnt of the voter taken before competent authority in pursuance of regular and 
 sufficient notice, should be read in evidence to prove his title to vote. 
 
 The committee reported these rules to the House with the case. 
 
 On April 19 the House confirmed ilr. McCoy in his seat. 
 
 772. The election case of Easton v. Scott, from the Territory of Mis- 
 souri, in the Fourteenth Congress. 
 
 The House in 1817 held that it was competent to examine the qualifi- 
 cations of voters, although they had voted by a secret ballot and might 
 be compelled to disclose their votes. 
 
 The House may investigate a contested election of a Delegate as of a 
 Member. 
 
 The Elections Committee declined to favor giving a petitioner prima 
 facie title to a seat because a partial investigation showed a majority for 
 him. 
 
 In 1816 and 1817 the House considered at length the contested election case of 
 Easton V. Scott from the Territory of Missouri, on which the Committee on Elections 
 reported in favor of seating the petitioner. The charges of irregularities were numer- 
 ous, and although the report of the committee was once recommitted, the House did 
 not arrive at any conclusion as to the merits of the case as between the contestant 
 and contestee; but adopted, on January 12, 1817, ' aresolution that the election had 
 been illegally conducted, and that the seat of the Delegate from the Territory was 
 vacated. 
 
 During the examination of the case certain principles of procedure were discussed 
 and determined, some by the committee alone and some by the committee and 
 House. 
 
 The law of the Territory requiring "that, in all elections to be held in pursu- 
 ance of this act, the electors shall vote by ballot" the committee held that a secret 
 ballot was intended, and that there existed no authority to compel a voter to disclose 
 for whom he voted. Therefore it would be impossible to inquire into the quahfica- 
 tions of electors ^\-ith a view to purge the polls. But on January 3, ISl?,^ when the 
 
 ' Second session Foiuteenth Congress, Contested Elections in Congress, from 1789 to 1834 p 272 
 2 Annals, pp. 414, 418.
 
 996 PKECEDENTS OF THE HOUSE OF KEPRESENTATIVES. § 773 
 
 report was considered in the House, Mr. Daniel Webster made the criticism that 
 qualifications of the voters had not been considered, and moved that the report 
 be recommitted to the Committee of Elections with instructions "to receive 
 evidence that persons voting tor either candidate were not entitled to vote on 
 the election." On this motion a wide debate took place as to whether or not votes 
 given by ballot, and of course secretly, could be afterwards ascertained, or the voter 
 be required to declare for whom he voted. Other points were also touched on in this 
 debate, which resulted, on January 4, in an affirmative action on the motion to recom- 
 mit with the instructions, by a vote of 86 yeas to 50 nays. 
 
 On January 4/ also, the question was raised on the floor of the House that Dele- 
 gates could not be considered Members of the House, and therefore, that the House 
 could not be the judge of their election and return. Mr. Samuel R. Betts, of New- 
 York, who raised this point, moved, therefore, that the subject be indefinitely post- 
 poned. In opposition to this it was argued that in 1809 the House had considered 
 such a case, and the people of the Territories were authorized under the law to have 
 Delegates, and therefore had a right to be represented correctly. If the House could 
 not examine in such a case, the returning officer became absolute judge; and the 
 returning officer might return two Delegates. What would the House do then? 
 The motion to postpone indefinitely was decided in the negative by a large majority. 
 
 In their first report the committee rejected the votes in the township of Cote 
 Sans Dessein for a variety of reasons, including the fact that the result of the voting 
 was sent to the governor in an irregular manner. The rejection of this township — 
 which, however, was only one of many places yet to be examined where irregularities 
 were charged — left a majority of 7 votes for the petitioner. Therefore !Mr. Easton 
 claimed that the rejection of the irregular return of Cote Sans Dessein would change 
 the figures on which the governor's return had been made so as to require, under the 
 law, the issuance of a certificate to himself instead of Mr. Scott. Thus he claimed 
 that the decision of the committee showed that the prima facie right to the seat 
 belonged to him rather than to Mr. Scott; and, citing the parliamentary law of Eng- 
 land in support of his contention, asked that he be made the sitting Member, and that 
 Mr. Scott be put in the place of contestant. The committee decided that this 
 request should not be granted, and proceeded with the investigation. 
 
 773. The case of Easton v. Scott, continued. 
 
 When the law requires a vote by ballot, an election viva voce is not 
 permissible and is a reason for rejection of the returns. 
 
 Where electors are objected to for want of qualifications, their names 
 should be set forth in the notice of contest. 
 
 A requirement of law that the number of votes given shall be " set 
 down in writing " on the poll book is fulfilled by the use of numerals. 
 
 There being no time to collect the evidence needed to determine the 
 right to a seat, the House, on a showing unfavorable to sitting Delegate, 
 declared the seat vacant. 
 
 The seat of a Delegate being declared vacant, the Speaker was directed 
 to inform the governor of a Territory. 
 
 ' Annals, pp. 415-417.
 
 § 774 GENER.\L ELECTION CASES, 1789 TO 1840. 997 
 
 The committee, in rejecting the votes of Cote Sans Dessein, did so for a variety 
 of causes, as: The election was held viva voce, when the law prescribed ballot; 
 neither the judges (two where tliree were required) nor clerk were sworn as 
 required by law. 
 
 The committee also ruled that a requirement of the law that "the number of 
 votes given to each person shall be set down in writing at the foot of the poll book" 
 was sufficiently complied with by the following entrj': "For Rufus East on, 16 — 
 For John Scott, 107." 
 
 The committee also established the rule, taking for precedent the case of Joseph . 
 
 B. Varnum in the Fourth Congress, that the names of the electors objected to for 
 want of sufficient qualifications ought to be set forth prior to the taking of testi- 
 mony. The committee said in reference to this decision: 
 
 If the House concur with the committee in this opinion, it follows that no evidence has been sub- 
 mitted by either party enabling the committee to investigate the qualifications of the electors. The 
 committee are further of opinion that evidence can not be procured in season to enable the committee 
 to investigate the qualifications of the electors during the present Congress. 
 
 Therefore they asked to be discharged from the consideration of the subject of 
 qualifications. 
 
 On Januarj' 12, 1817, the House rejected an amendment declaring Mr. Easton 
 entitled to the seat; and finally agreed to the following: 
 
 Resolved, That the election in the Territorj' of Missouri has been illegally conducted and the 
 seat of the Delegate from that Territory is vacant; that the Speaker inform the governor of that Terri- 
 tory of the decision of this House, that a new election may be ordered. 
 
 774. The Vermont election case of Mallary v. Merrill in the Sixteenth 
 Congress. 
 
 The House is not confined to the conclusions of returns made up in 
 strict conformity to State law, but may examine the votes and correct the 
 returns. 
 
 No fraud being alleged, the House counted returns transmitted in 
 an unsealed package, although the State law required the package to be 
 sealed. 
 
 The House counted votes rejected by a State canvassing board because 
 returned by error for persons not candidates for Congress. 
 
 The House counted votes duly certified but not delivered to the State 
 canvassers because of negligence of a messenger. 
 
 On January 5, 1820,' the Committee on Elections, who had been considering 
 the case of Mallarv* v. Merrill, of Vermont, reported that in their opinion Orsamus 
 
 C. Merrill was not entitled to the seat, and that RoUin C. Mallar}' was entitled to it. 
 
 Under the law of Vermont the returns of the towns were transmitted to a can- 
 vassing committee chosen by the general assembly, and in accordance with the 
 findings of that committee the governor of the State, in accordance with the law, 
 executed credentials to Mr. Merrill. 
 
 ' First session Sixteenth Congress, Contested Elections in Congress, from 1789 to 1834, p. 328.
 
 998 
 
 PRECEDENTS OF THE HOUSE OF REPEESENTATIVES. 
 
 §774 
 
 But the Committee on Elections, going behind the governor's certificate and 
 the result ascertained by the canvassmg committee, found the following facts: 
 
 That the canvassing committee had rejected the legally given votes of the town 
 of Fairhaven because the election officers of that town had transmitted the certificate 
 of votes to the canvassing committee in an unsealed packet, while the law required 
 the packet to be sealed. The committee, holding that the House of Representa- 
 tives had not been accustomed to allow votes legally given to be defeated by the 
 mistake or negligence of a returning officer, were of the opinion that the votes of 
 Fairhaven should be allowed to the contestant. 
 
 That the canvassing committee had rejected the legally given votes of the 
 town of Plymouth because the certificate of the presiding officer, while complete 
 and definite, was not in the exact form prescribed by the statute of the State. 
 The Committee on Elections were of the opinion that the prescribed form had been 
 substantially adhered to and that the votes should be counted. 
 
 That the canvassing committee had rejected the return of the town of Wood- 
 bury because the votes actually given for Congressmen had, through the mistake 
 of the presiding officer, been returned for certain gentlemen who were candidates 
 for State councilors, and in whose favor not one vote was given for Representatives 
 in Congress. The record made in the town clerk's office, in accordance with law, 
 showed the correct result. The Committee on Elections concluded that this error 
 should be corrected and the legally given votes be recorded. 
 
 That the legally given votes of the town of Goshen were certified in due form, 
 but the messenger provided by law to deliver the votes to the canvassing committee 
 failed to do so. The Committee on Elections considered that this failure should not 
 be allowed to keep from the poll the votes of the town. 
 
 These corrections gave a majority to the petitioner, Mr. Mallary. 
 
 The arguments of contestant and sitting Member, which were submitted in 
 writing to the committee and published as part of the report, practically assumed 
 the correctness of the committee's deductions, but joined issue as to the right of the 
 House to go behind the determination of result arrived at by State authority. 
 
 The contestant argued that, as the House was the judge of the election of its 
 owTi Members, State authority might not create an intervening obstacle. It would 
 be unreasonable to say that the House should be bound by laws never intended 
 to operate on its privileges, and if intended so to operate must be nugator}'. It 
 could not be inferred, because the canvassing conmiittee were required to receive 
 the certificate of a town clerk or constable as evidence, the Congress was to receive 
 no other. The precedents of the House showed that the qualifications of the elect- 
 ors had been frequently examined by the House. In the Georgia case of 1804 the 
 House had gone behind the State return. 
 
 The sitting Member contended that the settled order of business prescribed by 
 the election law of a State was binding on the House regarding the election of its 
 Members unless "the Congress, by law, have altered such regulations." If State 
 laws were agreeable to the Constitution and the requisites of the laws were regarded, 
 the proceedings of the freemen and the decisions of the State tribunes were in 
 good faith to be recognized and accredited. While the Congress might modify a 
 State law on this subject, the House alone could hardty assume to do so. The pro-
 
 § 775 GENERAL ELECTION CASES, 1789 TO 1840. 999 
 
 ceedings in a State, done conformably to law, were of more than prima facie effect. 
 ''I strenuously and boldly urge," he said, "that the power of the House of Repre- 
 sentatives, and its committee, as judges of the election, returns, and qualification 
 of its Members are limited to the law of the State and the Constitution; they are to 
 inquire and decide whether either have been infringed, and whether all proceedings 
 have been done in good faith. They are not authorized to step behind a constitu- 
 tional statute, except to see whether its provisions have been regarded. The statute 
 is the act of the freemen and is the expression of their will, and it is as vitally im- 
 portant to them as the deposit of their ballots. The House of Representatives, 
 without the cooperation of the other branch of Congress, can not pass behind the law 
 of Vermont, to alter or contradict it, without the exercise of imconstitutional and 
 dangerous power." 
 
 The report of the committee was debated in the House on Januarj- 11, especiallv 
 with reference to the issue joined in the arguments of the parties, and on January 
 13, by a vote of 116 to 47, Mr. Mallary was declared to be entitled to the seat. 
 
 775. The Maryland election case of Reed v. Causden, in the Seven- 
 teenth Congress. 
 
 The Constitution requires election of Representatives by the people, 
 and State authorities may not determine a tie by lot. 
 
 The decision of elections oflicers that ballots were fraudulently folded 
 was reviewed and reversed by the House. 
 
 The House reviewed and reversed the decision of elections officers in 
 admitting a ballot not conforming to the State law. 
 
 Opinions of the Elections Committee as to investigating qualifications 
 of voters who have voted by secret ballot. 
 
 The House, overruling its Speaker, held that a negative decision on a 
 resolution declaring a contestant not elected was not equivalent to affirm- 
 ative affirmation. 
 
 The Committee on Elections, on March 11, 1822,' reported in the contested 
 election case of Reed t\ Causden. This case involved both a question of the con- 
 stitutionality of the act of the governor and council of Maryland, and a question of 
 fact as to the votes actually given. 
 
 The returns of the election, as made to the governor and council, showed that 
 the contestant and sitting Member had an equal number of votes, and that neither 
 had the "greatest number of votes" as by the constitution of the State was required 
 to constitute an election. In this situation, the governor and council of Mar^-land, 
 acting under the State law of 1790, proceeded by lot to decide between the two 
 candidates, and decided in favor of Jeremiah Causden. The Committee on Elections 
 expressed the belief that the law of 1790 had been repealed by a subsequent law; 
 but dismissed this point as unessential in view of the constitutional question involved. 
 The Constitution of the United States provided that "the House of Representatives 
 shall be composed of Members chosen every second year by the people of the several 
 States," and that "each House shall be the judge of the elections, returns, and 
 
 'First session Seventeenth Congress, Contested Elections in Congress, from 1789 to 1834, p. 353; 
 House Report No. 64.
 
 1000 
 
 PRECEDENTS OF THE HOUSE OF KEPEESENTATIVES. 
 
 §775 
 
 qualifications of its own Members." If the people of Maryland failed to make a 
 choice, no other authority of the State could make good this defect. If the electors 
 had failed to attend the election it would not be contended that the State executive 
 authority could appoint a Representative in Congress for the district. 
 
 In relation to the question of fact the committee, after examination of testi- 
 mony, concluded that two votes given for the contestant in one of the districts of 
 Kent County, and rejected because folded together in contravention of law had 
 been improperly rejected by the judges, and that a vote allowed to him in Cecil 
 County should be deducted, as being illegal in form. These additions and the 
 deduction left a majority of one vote for the contestant. 
 
 The law of Maryland provided: 
 
 If upon opening any of the said ballots there be found any more names written or printed on 
 any of them than there ought to be, or if any two or more of such ballots or papers be deceitfully folded 
 together, or if the purpose for which the vote is given is not plainly designated as within directed, 
 such ballots shall be rejected and not counted. 
 
 The report of the committee indicated a belief that the two ballots rejected 
 because folded together were not "deceitfully folded together," evidence being 
 quoted to show that the footing of the poll lists indicated this. 
 
 The illegal vote in Cecil County contained the name of the memorialist, 
 together with the names of five other persons, without any other designation than 
 the words for "Congress." The law of Maryland provided: 
 
 Every voter shall deliver to the judge or judges * * * a ballot, on which shall be written or 
 printed the name or names of the person or persons voted for, and the purpose for which the vote is 
 given plainly designated. 
 
 Therefore the committee considered that the sitting Member could not, under 
 the Constitution, retain his seat, and that the contestant was elected. The com- 
 mittee embodied their views in these resolutions: 
 
 Resolved, That Jeremiah Causden is not entitled to a seat in this House. 
 Resolved, That Philip Reed is entitled to a seat in this House. 
 
 On March 15 and 19 ' the report was considered in Committee of the Whole 
 and the House. 
 
 The resolution that Jeremiah Causden was not entitled to the seat was agreed. 
 
 But over the second resolution there was a contest. The Committee of the 
 Whole amended it by inserting the word "not" so as to provide that Philip Reed 
 was not entitled to the seat. This amendment was concurred in by the House by 
 a vote of 73 to 71. A motion to reconsider failed, as did also a motion to amend 
 by inserting the explanatory words so the resolution would read : 
 
 Resolved, That Jeremiah Causden and Philip Reed having an equal number of votes, Philip Reed 
 is not entitled to a seat in this House. 
 
 The question recurring on agreeing to the second resolution as amended by 
 inserting "not," there appeared yeas 75, nays 75. So the resolution was deter- 
 mined in the negative. The Speaker (Mr. Barbour) was one of those votmg in the 
 aflirmative. 
 
 'Journal, pp. 367-371.
 
 § 776 GENERAL ELECTION CASES, 1789 TO 1840. 1001 
 
 The Speaker ' decided = that, as the House had negatived a motion declaring 
 PhiHp Reed not entitled to a seat, the converse of the proposition was affirmed, and 
 that Philip Reed was entitled to a seat. 
 
 An appeal having been taken, the House overruled this decision. 
 
 Thereupon the following resolution was offered and agreed to — yeas 82, nays 72: 
 
 Resolved, That Philip Reed is entitled to a seat in this House as one of the Representatives from 
 Maryland. 
 
 Air. Reed thereupon qualified and took his seat. 
 
 The committee also comment on certain charges that illegal votes were given 
 by certain named persons. The inference is that the votes were objected to because 
 of alleged disqualifications of the persons castmg them. "On the propriety of 
 entering mto an investigation of this kind, when elections are by ballot, the com- 
 mittee entertams serious doubt." The committee refers to the case of Easton and 
 Scott, but doubts whether it should be viewed as establishing a precedent. 
 
 776. The New York election case of Adams v. Wilson in the Eight- 
 eenth Congress. 
 
 Instance wherein the House seated a contestant shown to be elected 
 by a plurality of one vote. 
 
 Being unable to insnect a ballot the committee and House accepted 
 the judgment of the election judges that "it was intended for a blank. 
 
 The House followed a State law in rejecting ballots folded together; 
 but considered evidence tending to show fraud before doing so. 
 
 On December 30, 1823,' the Committee on Elections reported in the New York 
 contested election case of Adams v. Wilson, in which the face of the returns showed 
 the following result: Isaac Wilson had 2,093 votes; Parmenio Adams had 2,077 votes. 
 
 The committee found from the testimony that in the towTi of China 22 more 
 votes were returned for the sitting Member than he actually received. 
 
 They also found that in the town of Attica 5 votes were returned for the con- 
 testant more than he actually received. 
 
 These deductions being made the poll stood: For Isaac Wilson, 2,071 votes; 
 for Parmenio Adams, 2,072 votes. 
 
 The sitting Member claimed further, however, that in the town of Middleboro 
 the local inspectors had improperly rejected as a blank ballot a ballot whereon 
 the name of the sitting Member had been impressed, but had been defaced by one 
 stroke of a pen over the name without, however, affecting the distinctness and 
 legibility of the letters. The committee reported that all the inspectors of election 
 agreed in the opinion that it had been the intention of the elector who presented 
 it to have it considered a blank. The Committee on Elections announce the con- 
 clusion that they could not with safety judge of the ballot from the description of it, 
 and that the judgment of the board of inspectors— whom the law of the State 
 constituted judges — should not be questioned. 
 
 The committee also disregarded the claim of the sitting Member that certain 
 votes be counted for him in the town of Stafford. The law of the State provided 
 
 ' Philip P. Barbour, of Virginia, Speaker. 
 
 ^ Journal, p. 369, Annals, p. 1322. 
 
 3 First session Eighteenth Congress, Contested Elections in Congress, from 1789 to 1834, p. 373.
 
 1002 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 777 
 
 that "if any two or more ballots are found folded or rolled up together, none of the 
 ballots so folded or rolled shall be esitmated." The votes in question were folded 
 to"-ether and a reference to the poll lists showed that more ballots were received 
 than there were names on the list. 
 
 The committee commended the honesty of tne inspectors in the district so far 
 as the inquiries extended, and expressed the opinion that their testimony was 
 competent and ought to be received to correct any mistakes in the return. 
 
 On January 6, 1824, the House, concurred with the Committee on Elections, 
 in adopting a resolution declaring Mr. Wilson not entitled to the seat. 
 
 To the other resolution, declaring Mr. Adams entitled to the seat, an amend- 
 ment was offered declaring the seat vacant because of the doubt as to who should 
 have been returned. This amendment was in form as follows: 
 
 It is doubtful, from the evidence, who ought to have been returned the Member to the present 
 Congress from the Twenty-ninth Congressional district in the State of New York; and believing that 
 no man ought to exercise the high and honorable station of Representative of the people by virtue of 
 a vote short of a clear majority of those given at the polls; and believing also that the people of that 
 district are competent and ought of right to judge of and correct the return, therefore — 
 
 Resolved, That the seat of Isaac Wilson, who was returned as the Member from the Twenty-ninth 
 Congressional district of New York, is vacant. 
 
 Resolved, That a writ of election do forthwith issue to supply the aforesaid vacancy, occasioned 
 by the improper return of Isaac Wilson to a se&^t in this House. 
 
 This proposition was decided in the negative, as was also an amendment to 
 insert the word "not," so as to provide a declaration that Mr. Adams was not 
 entitled to the seat. 
 
 The House then, by a vote of 116 yeas to 85 nays, agreed: 
 
 Resolved, That Parmenio Adams is entitled to a seat in this House. 
 
 Thereupon Mr. Adams took his seat. 
 
 777. The election case of Biddle and Richard v. Wing, from Michigan 
 Territory, in the Nineteenth Congress. 
 
 A board of Territorial canvassers having heard evidence on the merits, 
 the Elections Committee decided that neither party should be prejudiced 
 thereby. 
 
 The Elections Committee declined to consider intimidation at a poll 
 unless it seemed to have destroyed the fairness of the whole proceeding. 
 
 Where the election had been by ballot, the Elections Committee 
 declined to investigate qualifications of voters to the extent of violating 
 the secrecy of the ballot. 
 
 Instance wherein, without violating the secrecy of the ballot, the 
 Elections Committee by computation rectified a poll. 
 
 On February 13, 1826,' the Committee on Elections reported in the contested 
 election case of Biddle and Richard v. Wing the following resolution: 
 
 Resolved, That Austin E. Wing is entitled to a seat in this House as a Delegate from the Territory 
 of Michigan. 
 
 ' First session Nineteenth Congress, Contested Elections in Congress from 1789 to 1834, p. 504; 
 Journal, p. 368.
 
 § 777 GENER.VL ELECTION CASES, 1789 TO 1840. 1003 
 
 On March 20 the report was considered in Committee of the Whole, but not 
 concluded. It does not appear to have been taken up again, and Mr. Wing con- 
 tinued in his seat. Therefore the reasoning of the committee did not receive the 
 positive approval of the House, although a negative approval may be inferred. 
 
 The returns of the local inspectors of the Territory showed the following sum- 
 mary of results in the various polling places: 
 
 Votes. 
 
 John Biddle 731 
 
 Austin E. Wing 724 
 
 Gabriel Richard 710 
 
 But the Territorial canvassing board, having met imder the law to ascertain 
 the aggregate of votes and determine the person elected, decided to hear evidence 
 as to alleged corruption at Sault Ste. Marie, where the returns showed 3 votes cast 
 for Austin E. Wing and 58 votes for John Biddle. 
 
 As a result of that investigation, and the return made by the canvassers to the 
 governor, the certificate of election was issued to Mr. Wing, he having the greatest 
 number of votes as required by the law for an election. 
 
 The committee expressed the opinion that the board of canvassers in holding 
 this investigation exceeded the authority given them by law, and that neither party 
 should be prejudiced thereby in an investigation by the committee of the original 
 and intrinsic merits of the case. An illegal assumption of power by one description 
 of officers could not justify an illegal assumption by another description. The 
 testimony before the canvassers was ex parte, but the committee conceive that, as 
 ex parte testimony was admitted in rebuttal also, no well-founded objection could 
 be made by contestant. 
 
 Mr. Richard rested his claim on the charge that his vote had been affected by 
 intimidation practiced by sheriffs at Detroit, but the committee conceive that they 
 can not enter into an examination of such charges, especially when the return shows 
 that Mr. Richard's friends were most numerous at Detroit, except the corruption 
 appears sufficient to destroy all confidence in the purity and fairness of the whole 
 proceeding. The inspectors being judges of election, the committee feel that they 
 were required to do no more than examine who had the greatest number of legal 
 votes actually given. 
 
 Mr. Richard's claim being thus dismissed, by the unanimous opinion of the 
 committee, the committee proceeded to test the case between Messrs. Biddle and 
 Wing. In this aspect of the case the committee reached a conclusion, although not 
 with unanimity. 
 
 After examining the inspector's returns, and after adding to Mr. Wing's poll 
 4 votes which the committee considered wrongfully rejected, the poll stood: 
 
 Votes. 
 
 For John Biddle 732 
 
 For Austin E. Wing 728 
 
 The committee refer to the fact that when an election turns on the reception of 
 illegal votes given by ballot much difficulty exists, it not being proper to discover 
 who threw the ballots by an investigation which would violate the secrecy of the 
 ballot.
 
 1004 PBECEDENTS OF THE HOUSE OF REPKESENTATIVES. § 778 
 
 But in this case it was possible to reach a result, because the question turned 
 on the poll at Sault de Ste. Marie, where the poll stood: 
 
 Votes. 
 
 For Austin E. Wing ^ 
 
 For John Biddle ^^ 
 
 The committee found the proceedings at Sault de Ste. Marie defective under 
 the law. Thus, four persons, not qualified electors, presided as inspectors. Of the 
 61 votes cast 51 must be considered illegal by reason of nonpayment of required 
 taxes; in addition to which 12 of the number were discharged soldiers (not citizens) , 
 3 aliens, and 3 nonresidents. Without setting aside the whole election, the com- 
 mittee deduct from Mr. Biddle' s poll the 12 soldiers, 3 aliens, and 3 nonresidents, 18 
 in all, leaving him 714 votes. They also deduct all of Mr. Wing's 3 votes on the 
 supposition that they may have been illegal. This still left Mr. Wing 11 plurality 
 
 on the poll. 
 
 Thus the committee arrived at their conclusion that Mr. Wing was elected. 
 778. The Tennessee election case of Arnold v. Lea in the Twenty-first 
 
 Congress. 
 
 Although the allegations of the petitioner in an election case were 
 vague and indefinite, the Elections Committee proceeded to examination. 
 
 Form of a petition in an election case deemed too general and indefinite 
 
 in its charges. 
 
 No fraud being shown, irregularities in the receiving and custody of 
 ballots were not held sufiBcient to justify the rejection of the returns. 
 
 Failure of election oficers to be sworn, no fraud damaging to the peti- 
 tioner being shown, was apparently considered not sufScient to justify 
 rejection of the returns. 
 
 Participation of relatives of a contestant as election oflScers was not 
 held fatal to the return, although the State constitution might seem to 
 imply a prohibition of such participation. 
 
 Where the electors comply with the statutes the House should not 
 reject their votes because returning oflB.cers have not been equally careful. 
 
 On December 29, 1829,^ the Committee on Elections reported in the contest of 
 Arnold v. Lea, from Tennessee. The contestant had petitioned, alleging: 
 
 That perjury and subornation of perjury were resorted to; that bribery, direct and indirect, was 
 resorted to; and, in short, to insure the defeat of your memorialist, the laws of Tennessee, which pre- 
 scribe in a special manner the mode of holding elections, were completely prostituted and trampled under 
 foot by the official authorities who conducted the election, and their own partial, prejudiced, and malig- 
 nant passions substituted in place of the laws of the land. 
 
 Although the general and indefimte character of these allegations were objected 
 to by the sitting Member, the committee decided to proceed to an examination. 
 
 They found no evidence of perjury or subornation of perjury, or bribery or 
 corruption, so that part of the petition hardly figures in the case, except in so far as 
 the proceedings had failed to comply with the law. 
 
 ' First session Twenty-first Congress, Contested Elections in Congress from 1789 to 1834, p. 601.
 
 § 778 GENER.\L ELECTION CASES, 1789 TO 1840. 1005 
 
 No return of the votes in the district was made to the committee, the petitioner 
 showino; no evidence to impeach particular votes. The sitting Member's majority 
 appeared to be 217. 
 
 The decision of the case turns on the question whether or not the conduct of the 
 election was fatally at variance with the following provisions of the constitution and 
 law of Tennessee: 
 
 No judge shall sit in the trial of any cause where the parties shall be connect(^d with him by 
 affinity or consangunity, except by consent of parties. (Sec. 8 of constitution.) 
 
 That the sheriffs or returning officers shall, on the day and at the place for holding each respective 
 election, bo pro\-ided with one box for receiving the ballots for governor and members of the general 
 assembly; the returning officer, or his deputy, shall receive the tickets in presence of the inspectors, and 
 put each into the box, which box shall be locked, or otherwise weU secured, until the election shall be 
 finished. The returning officer shall, at sunset of the firet day, and in the presence of the inspectors, put 
 his seal on the place to be made for the reception of the tickets, which shall continue until the election 
 shall be renewed the succeeding day; and it shall be the duty of the said inspectors to take chai-ge of the 
 box untU the poll is opened the next day, and shall then be taken off in the presence of the inspectors. 
 
 That the inspectors and clerks of every such election, as aforesaid, shall, in the court-house, before 
 they proceed to business, swear (or affirm, as the case may be) faithfully to perform their respective 
 duties at such election, agreeably to the constitution and laws of this State. 
 
 It appeared from the testimony that at Tazewell the inspectors, clerks, and 
 sheriff were in favor of the election of Mr. Lea, and that some of them had made bets 
 on the result ; that on the evening of the first da}- the sealed ballot box was put in 
 custody of the sheriff and not kept by the inspectors, as required by law, and under 
 direction of the sheriff was locked up in a storehouse owned, the petitioner charged, 
 by an enemy of himself. The friends of the petitioner complained at this conduct, 
 and on the second day another box was used, the first remaining sealed until the 
 count. Then it was found that the box contained the exact number of votes it 
 should contain according to the poll lists. Petitioner objected that this did not 
 prove that some tickets cast for himself might not have been abstracted and replaced 
 b}' an equal number for sitting Member, the situation of the box rendering such a 
 fraud practicable. But no proof was adduced to show this, and the committee 
 decided, although it was in eAridence that the sheriff had been anxious to have the 
 custody of the box, that there was no evidence to prove fraud, especially as the 
 persons concerned in the conduct of the election were men of high character. 
 
 At Knoxville there was testimony, which the committee consider far from con- 
 clusive, that one man had been bribed to vote for sitting Member and that another 
 who had voted for the same candidate was a minor. 
 
 At one precinct in Granger County it appeared neither the inspectors nor the 
 clerks were sworn. One of the three inspectors was a friend of the petitioner, and 
 the votes returned for petitioner outnumbered those returned for the sitting Member. 
 Certain illegal votes, not over eight in number, were deducted at this place, a greater 
 number being taken from the vote of the sitting Member than from the vote of 
 petitioner. 
 
 At one precinct of the county of Jefferson, a cousin of the sitting Member was 
 one of the inspectors, and with the approval of the other inspectors, this cousin, vnih 
 the sheriff, took custody of the ballot box after the first day's voting.
 
 1006 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 779 
 
 At a precinct of Blount County one of the tlrree inspectors was a justice of the 
 peace, and swore himself, the two other inspectors, and the clerk. After the first 
 day's election the inspectors delivered the ballot box to the custody of an uncle of 
 the deputy sheriff. A minor, whose vote was rejected in this county, loaned a horse 
 of the petitioner and went to another polling place, where he voted. It appeared 
 to the committee that the petitioner was privy to this -s-iolation of law. 
 
 The committee conclude that these irregularities are not fatal. In the pre- 
 cinct where the inspectors and clerk were not sworn a deduction of the votes cast 
 would, if made, increase rather than diminish the majority of the sitting Member, 
 and even if the whole vote taken should be given to the petitioner the sitting 
 Member would still have a majority. 
 
 The committee therefore recommended unanimously the following: 
 
 Resolved, That Pryor Lea is entitled to retain his seat in the Twenty-first Congress of the United 
 States as the Representative of the Second Congressional district of the State of Tennessee. 
 
 On January 12, 1830, an amendment declaring the seat A^acant was offered and 
 debated. 
 
 In the course of the debate Mr. William W. Ellsworth, of Connecticut, said : 
 
 The merits of the case are involved in two questions, and only two, viz, how the electors of this 
 Congressional district complied with the requisitions of the statute law of Tennessee; and if they have, 
 what is the result of their vote? A close adherence to these questions will strip this matter of much that 
 is collateral and immaterial. As to the first question (the difficulty being that the ballot box has not 
 been taken care of by the supervisors of the election), I observ'e that the States may prescribe the time, 
 place, and manner of the election, and beyond that it is the ultimate province of this House to ascertain 
 the result of the election. We only want to know what the electors have said by their votes. There 
 may be some difficulty in ascertaining this fact where the supervisors of the balloting are irregular as 
 to their duty; but if the electors have done all the State law requires of them, and all they can do legally 
 to express their wishes, this is enough for us, if we can but satisfy oureelves of the result. If we can not, 
 by reason of the conduct of the supervisors, ascertain what was the true state of the ballot box when the 
 electors had deposited their votes, we must pronounce the election to be void. * * * We are to 
 inquire after the voice of the electors, legally expressed; and if the agents who take and declare the votes 
 do wrong, let them be prosecuted, but not punish the electors by rejecting their Representative. * * * 
 The case stated from Missouri fully illustrates my views (Easton %'. Scott). There the statute required 
 the electors to vote by ballot ; they voted, however, vive voce; but they could not so vote. The electors 
 did not do their duty; they did not comply with the law as to the manner of election. So, too, the case 
 of Allen V. Van Rensselaer, from New York, illustrates the distinction. The law of New York requires 
 the ballot box to be locked; it was only tied with a string. In this case Congress decided the election to be 
 good; the electors did all their duty, and Congress were satisfied as to the contents of the ballot box. 
 
 This amendment declaring the seat vacant was, according to the rule then pre- 
 vailing, set aside by the previous question. The House then agreed to the resolution 
 declaring the returned Member entitled to the seat by a vote of yeas 149, nays 20.* 
 
 779. The Maine election case of Washburn v. Ripley in the Twenty- 
 first Congress. 
 
 Where a second and effective election was had because of apparent 
 failure to choose at the first the House declined to be estopped from 
 investigating the first. 
 
 The acceptance after election of a State oflB.ce which was resigned 
 
 'Journal, pp. 159-161.
 
 § "^^^ GENERAL ELECTION CASES, 1789 TO 1840. 1007 
 
 before the meeting of Congress was held not to destroy whatever rights 
 a contestant might have. tucvei ngnts 
 
 tion"^ th?w '' .for different offices are cast in different boxes the inten- 
 
 Sc^t is'd:p:2t:d:^ *° '^ ^"^^^^^^^^ ^°^^ ^^°- *^^ ^- ^- -^^^^ the 
 
 Con^Jr.'frii°?''''.^'' ^■''.'^^^''^ ^^ """^^'^^^ *° ^^'^^t f°r ^ candidate for 
 Congress ballots cast m a box other than the Congressional box. 
 
 .^.^ltT°l °, ^^""^^ '■"^''''^ ^" ^°*"" "^^t in the Congressional box, 
 
 even though for persons not qualified. ' 
 
 On January 18, 1S30/ the Committee on Elections reported in the contested 
 election case of Washburn .. Ripley from Maine. The facts^peared as folWs 
 
 Under the laws of Mame the election wa^ by ballot, a majority bein<r required 
 to elect and the baUots for Congressman were deposited in a box bv theClve at 
 each pollmg place. The result of the jjoll was as follows: " ^"^^'^^^ "•* 
 
 Whole number of votes given 
 
 Keccssarj-for an election. . . <>' at 
 
 Kuel Washburn had .'.".'' T'^^r 
 
 James W. Ripley had o q'' 
 
 Eleven men known and admitted to be candidates forth'e logislatiire at'the "' 
 
 same election had in the Congressional boxes a total of 94 
 
 Three men known and admitted to be candidates for countv treasurers had 
 
 in the Congressional boxes a total of " 
 
 Enoch Lincoln, candidate for governor, in the same way had. 2 
 
 Three candidates for State senator had a total of .". . 3 
 
 A single ticket having on it the names of two candidates foV State senate was 
 
 found in the Congressional box and counted as one vote for each makincr o 
 
 Scattering vote.. "' 
 
 " 282 
 
 The governor and cotmcil, acting under the law, found from this retm^i that a 
 majority of the whole number of votes was not given to any one candidate, and 
 ordered a new election, which was held December 22, 1828, and at which James W 
 Kipley received a majority and took his seat in the House 
 
 The sitting Member made the point that, as the governor and council had again 
 referred the matter to the people, and as the people had determined the election on 
 the second ballot, it was not competent for the House to go beyond the second elec- 
 tion The majority of the Committee of Elections, however, decided that they 
 might examme the first election, and did so. 
 
 The sitting Member further contended that the said Washburn had waived 
 whatever right he nught have had to a seat in the House by accepting, after the 
 date of the second election the State office of councilor, an ofiice incompatible, as 
 the constitution of Mame disquaUfied a Member of Congress from beincr councilor 
 A majority of the committee concluded that the rights of Mr. Washburn if he 
 acquired any by the election of September, would not in this wav be destroved 
 Mr. Washburn had resigned the councilorship before the time of' meeting of' the 
 Congress to which he claimed an election. 
 
 The case therefore proceeded to examination on its merits. 
 
 ' First session Twenty-first Congress, Contested Elections in Congress from 1789 to 1834 n erg- 
 House Report No. 88. iOO-l, p. D/»,
 
 1008 PBECEDENTS OF THE HOUSE OF KEPEESENTATIVES. § 780 
 
 It was proven that several of the persons for whom votes were found in the 
 Congressional box were not residents of the Congressional district, as required by- 
 law; that at least one vote intended for petitioner was put in the State senatorial 
 box and counted as a vote for State senator and not for Congressman. It was 
 evident and not seriously contested that the votes for State officers foimd in the 
 Congressional box were deposited there by mistake. 
 
 One such ballot cast in the town of Canton contained two names, and was 
 coimted as one vote for each name. The committee found that this should have 
 been coimted as only one vote, and therefore deducted one from the total. 
 
 There was also a question whether or not in the town of Bridgton a single ballot 
 containing three names had not been counted as tliree votes, and the committee, 
 while not considering it proven, also suggested that two votes be deducted in Bridg- 
 ton. These deductions, one in Canton and two in Bridgton, reduced the number 
 necessary to a choice to 2,496, or one more than the votes received by ilr. Washburn. 
 
 It appeared that the voter who cast the double ballot in Canton discovered his 
 mistake soon after and asked leave to rectify the error, but was refused by the select- 
 men. The minority of the committee believed that two votes should be deducted 
 in Canton and three in Bridgton — a total of five — which would reduce the number 
 needed for a choice to 2,495, the exact number received by Mr. Washburn. 
 
 The sitting Member professed abiUty to prove that illegal votes were given for 
 the contestant; but the committee considered the evidence before them sufficient to 
 settle the case, in accordance with the following rule, which they enumerated in 
 their report : 
 
 The committee are unanimously of opinion that when the votes are taken by ballot, and separate 
 boxes used, after they are deposited in the box it is not competent or proper for the voter or selectmen to 
 alter or change the ballot as delivered into the boxes, and that the intention of the voter is to be ascer- 
 tained alone from the box in which his ticket is deposited, and that the selectmen conducting the elec- 
 tions at the places above specified acted correctly in making out their return to the governor and council 
 of all the ballots they found in the box which was used for the reception of tickets for a Member of Con- 
 gress, and in refusing to count the votes they found in other boxes with the name of Washburn on it and 
 adding them to his list of votes given for him as a Member of Congress. The adoption of any other rule 
 would be fraught with danger to the purity of the elective franchise. 
 
 The committee are further of opinion that votes given for persons not residing within the district of 
 Oxford ought to have been added to the number of votes given for a Member of Congress, as they were 
 done by the selectmen. 
 
 Therefore the committee recommended the adoption of the following resolution : 
 
 Resolved, That James W. Ripley is entitled to a seat in the Twenty-first Congress of the United 
 States as the Representative of the Oxford district in the State of Maine. 
 
 On February 2, after a long debate, the House concurred in this report, yeas 111, 
 nays 79, Mr. Ripley being thus confirmed in the seat.' 
 
 780. The Virginia election case of Loyall v. Newton in the Twenty- 
 first Congress. 
 
 The House in an election case received testimony taken before an 
 informal commission, the individuals of which were competent, and due 
 notice being given. 
 
 'Journal, pp. 195, 209, 215, 224, 225, 230, 247, 249.
 
 § 780 GENERAL ELECTION CASES, 1789 TO 1840. 1009 
 
 Instance of the methods of taking testimony in election cases before 
 the enactment of the law. 
 
 Voting being viva voce, the testimony of the voter was admitted to 
 prove his qualifications. 
 
 All votes recorded on the poll lists are good unless impeached by 
 evidence. 
 
 Reference to rules governing counting of votes where freehold quali- 
 fications prevailed. 
 
 Instance wherein the Elections Committee waived the strict rules of 
 law in receiving testimony. 
 
 Form of resolution seating a contestant without in terms unseating 
 the sitting Member. 
 
 On February 19, 1830,' the Committee on Elections reported, in the contested 
 election case of Loyall v. Newton, from Virginia, the following resolution: 
 
 Resolved, That George Loyall is entitled to a seat in the Twenty-first Congress of the United States 
 as the Representative from the district in Virginia composed of the counties of Xorfolk, Nansemond 
 Elizabeth City, Princess Ann, and the borough of Norfolk. ' 
 
 This case divides itself into three general branches : 
 
 1. The admissibility of testimony taken before a commission alleged to have 
 been appointed without authority of law. 
 
 2. The legality of the action of the mayor of Norfolk under the law of Virginia 
 in adjourning the poll after the first day. 
 
 3. The legality of certain votes under the law of Virginia, some cast for the 
 contestant and some for the sitting Member. 
 
 In regard to the first branch, there was no law of the United States or of Vir- 
 ginia providing for taking testimony in contested election cases of Members of 
 Congress. In contests for members of the Virginia legislature the law of that State 
 provided for the appointment by local judges of commissioners to take testimony. 
 Following this analogy, the petitioner had appointed by the judge of the Norfolk 
 court commissioners to take testimony. The sitting Member objected to deposi- 
 tions so taken for the reason that there was no law authorizing their appointment 
 or providing the pains of perjury for those swearing falsely before such commis- 
 sioners. The committee found, however, that the commissioners, previous to their 
 appointment as such and during the time in which the depositions were taken, were 
 justices of the peace or notaries public, authorized under the laws of Virginia to 
 admmister oaths. So their capability in this respect was not dependent on the 
 appointment as commissioners, and the committee allowed the testimony taken 
 before them, as it did also testimony taken before justices of the peace authorized 
 to administer oaths in behalf of the sitting Member. 
 
 As to the second branch of the inquiry, the legality of the action of the mayor 
 of Norfolk in adjourning the poll depended on the construction of the language of the 
 Virginia statute, and the committee decided that the language gave him such 
 authority; also that the contingency requiring such adjournment existed. 
 
 ' First session Twenty-first Congress, Contested Elections in Congress, from 1789 to 1834, p. 520. 
 5094 — VOL 1 — 07 04
 
 J^QIO PBECEDENTS OF THE HOUSE OF EEPKESENTATIVES. § 781 
 
 The third branch of the case involved an examination of the qualifications of 
 electors under the law of Virginia, which provided various qualifications, especially 
 of property. Under the law of Virginia voting was viva voce, so the committee 
 admitted the testimony of the voter himself to prove himself a freeholder in cases 
 where the land books — also admitted in evidence — did not show the possession 
 of the freehold. The testimony of other persons was admitted to prove the qualifi- 
 cation of the voters in this respect. To the exammation of the votes the committee 
 applied the following rules, used also in the case of Porterfield and McCoy: 
 
 That all votes recorded on the poll lists should be good unless impeached by evidence. 
 That all votes not given in the county where the freehold lies be rejected. 
 
 That the votes of freeholders residing out of the district, but having competent freehold estates 
 within the district, be held legal. 
 
 Acting under these rules and prmciples the conmiittee found and reported a 
 majority of 30 votes for George Loyall. 
 
 The committee further state that had the parties been confined to the strict 
 rule of the law in requiring of them the best evidence the nature of the case admit- 
 ted and by refusing to receive parol evidence as to the freehold qualifications of 
 the voters, the majority of George Loyall would have been greatly increased. 
 
 On March 8,' after lengthy debate, a motion was made that "the said report be 
 recommitted to the Committee of Elections, with instructions to report to the House 
 the names of the voters which they find illegal, with a summary of the evidence upon 
 which they found their decision." 
 
 This motion was removed from before the House by a motion that the main 
 question be put. This motion for the previous question was agreed to without 
 division. 
 
 Then the question was taken on the resolution reported from the committee : 
 
 Resolved, That George Loyall is entitled to a seat in the Twenty-first Congress of the United States 
 as a Representative from the district in Virginia composed of the counties of Norfolk, etc. 
 
 And the resolution was agreed to — yeas 97, nays 84. 
 
 On March 9 Mr. Loyall took the oath. 
 
 It will be observed that no resolution specifically declaring Thomas Newton, the 
 returned Member, not entitled to the seat was thought necessary. Mr. Newton had 
 occupied the seat since the meeting of Congress. 
 
 781. The Virginia election case of Draper v. Johnsoii in the Twenty- 
 second Congress. 
 
 Where payment of a tax is a qualification of the voter the tax may be 
 paid by another than the voter. 
 
 A vote being given viva voce at an election for Congressman, the voter 
 may not afterwards change it or vote for additional officers. 
 
 An election is not vitiated by failure to observe a directory law that 
 the ballots shall be returned within a given time. 
 
 On April 13, 1832,^ the Committee on Elections, through Mr. John A. Collier, 
 
 ' Journal, pp. 386-388. 
 
 ^ First session Twenty-second Congress, Contested Elections in Congress, from 1789 to 1834, p. 702; 
 House Report No. 444; House Journal, pp. 586, 807.
 
 § 782 GENERAL ELECTION CASES, 1"89 TO 1840. 1011 
 
 of New York, reported in the case of Draper v. Jolmson, from Virginia. The con- 
 testant alleged that the election had not been conducted according to certain specified 
 laws of Virginia, and that b_r reasons of these departures from the law he was deprived 
 of the election to wliich he was entitled by receiving the greater number of votes 
 given bj' voters legally qualified. The committee m their consideration of the case 
 adopted certain principles of action which seem to have been approved by the whole 
 committee. 
 
 The test principles laid down by the committee related in large part to the 
 construction of the peculiar law of Virginia relating to the freehold qualifications 
 of the voter. Some, however, of these principles are of less ephemeral interest, as 
 the following : 
 
 That where a revenue tax is duly assessed, and the sheriff has paid the tax himself, and has not 
 returned the party delinquent, as he has the right to do if he is insolvent, or the sheriff is not alile to 
 collect the tax, that this is to be deemed a payment by the party, so as to entitle him to a vote. 
 
 That where a voter is first polled, and his vote recorded for one candidate (the voting being viva 
 voce), he is not at liberty afterwards to change it and liave his vote transferred to another candidate; 
 nor, if he first votes for the State officers only, has a right to come forward afterwards to vote for a 
 Representative in Congress. 
 
 That the neglect to return the votes to the clerk's office within the time required after the canvass, 
 the provisions being merely directory, will not vitiate the election, it appearing that the polls were 
 afterwards returned and filed. 
 
 782. The case of Draper v. Johnson, continued. 
 
 The neglect of the officer conducting the poll to take the required oath 
 is ground for rejecting the poll. 
 
 An election officer being presumed to do his duty, is presumed to have 
 taken a required oath, and the burden of proving otherwise in on the 
 objecting party. 
 
 Failure to file a required certificate that an election officer took the 
 oath is sufficient to throw the burden of proof on the party claiming the 
 votes received by the officer. 
 
 The law requiring two officers to officiate at a poll, votes taken by one 
 officer acting in the capacity of the two required, were rejected. 
 
 An election officer having acted colore officii, without objection from 
 any claimant, the Elections Committee declined to inquire if he had been 
 appointed properly. 
 
 Early instance wherein the Elections Committee heard arguments of 
 the parties on the evidence. 
 
 The committee also laid down additional test principles, as follows: 
 
 That the neglect of the sheriff or other officer conducting the election, to take the oath required 
 by law, vitiates the poll for the particular precinct or county, and the whole votes of such precinct or 
 county are to be rejected. 
 
 That the legal presumption is, that the oath required has been taken, every officer being presumed 
 to have done his duty, and that the onus is thrown upon the party taking the objection to show the 
 neglect or omission; but as the law of Virginia requires that the oath shall be returned and filed in the 
 clerk's office, a certificate from the clerk that no such vote is filed will be sufficient prima facie (notice 
 of the objection being pre\-iou8ly served upon the opposite party) to throw the burden of proof on the 
 party claiming the vote.
 
 J012 PKECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 783 
 
 That the sheriff, or other officer conducting the election, and particularly at the court-house, 
 where no other superintendents are associated with him, must appoint one or more "writers" to take 
 the polls; and that the sheriff can not act solely, and in the double capacity of superintendent and 
 clerk; and that the votes recorded by him, without the presence or aid of such clerk or writer, are to 
 
 be rejected. . , , t. ■!_ i 
 
 That the superintendent of a separate election, having been appointed by a court or other tribunal 
 having the general appointing power for that purpose, which superintendents act as such, colore officii, 
 no other person appearing or acting as conflicting claimants for the office, the committee will not inquire 
 whether they were appointed at the particular term of the court contemplated by the act, or whether 
 there was a "vacancy" within the meaning of the law. 
 
 783. The case of Draper v. Johnson, continued. 
 
 Votes cast at an election adjourned beyond the times permitted by- 
 law were rejected. 
 
 A vote received by election oflBcers is prima facie good, and the bur- 
 den of proof should be on the party objecting thereto. 
 
 The House does not permit an agreement of parties that votes are 
 inadmissible to preclude examination. 
 
 An investigation showing for sitting Member a majority, the House 
 declined to vacate the seat because certain irregularities (not frauds) 
 suggested that further inquiry might change the result. 
 
 Instance in 1832 wherein a minority dissent was voiced in the 
 report of the majority and not in separate " views." 
 
 An early instance wherein the House overruled the report of the 
 majority of the Elections Committee. 
 
 The committee also decided that where the law of Virginia permitted the poll 
 to be continued three days, that a continuance during the fourth day was not justi- 
 fied by the terms of the law and rejected the votes cast on the said fourth day, 
 although it does not appear horn the report that the votes given on the fourth day 
 were otherwise than legal. 
 
 The committee note also in their report that they not only examined the docu- 
 mentary testimony produced, but heard the parties, who personally appeared before 
 the committee. 
 
 A correction of the returns in accordance with the principles laid down by the 
 committee would give to the sitting Member, Mr. Johnston, a majority of 123 votes. 
 
 But the committee found a further complication, set forth as follows : 
 
 As to the qualifications of the voters, the parties, in the outset, assumed a principle by which they 
 have been governed throughout, different from what would have been adopted by the committee, and 
 which has occasioned great trouble and delay. It was assumed that if a vote was objected to upon the 
 ground that it was not by a person duly qualified, the party claiming the vote must take the burden 
 of proving, affirmatively, that the voter possessed the required qualifications. This erroneous principle, 
 as the committee deem it to be (for they would have taken a vote received by the board of inspectors 
 as prima facie good), might and would have been reversed and corrected, were it not that the parties, 
 acting upon this basis, proceeded to stipulate, in writing, that the votes thus objected to, and not, there- 
 fore, proved to be good, were to be deemed and considered bad, reserving, however, in the counties of 
 Wythe and Grayson, the right to the party claiming the vote to prove it to be given by a person duly 
 qualified; and in the other counties in the district * * * the written stipulation reserved no right 
 to prove the votes to be good; but the specified votes were admitted, unconditionally, to be bad. The 
 committee, however, were of opinion that, although there was no express reservation in the other coun-
 
 § 784 GENERAL, ELECTION CASES, 1789 TO 1840. 1013 
 
 ties, "yet, if aflirmative and satisfactory proof should be offered, showing that the votes objected to 
 were, in point of fact, given by persons duly qualified to vote, that the parties would have no right to 
 stipulate that such votes should be disregarded; and that the stipulations would only be received as 
 prima facie evidence of the want of the necessary qualifications of the voters." 
 
 Therefore the committee gave additional time to take testimony; but the new- 
 testimony did not cover all the votes, and the report sa^'s : 
 
 It will be perceived that from the erroneous principle assumed by the parties in the outset, dis- 
 ranchising by stipulation upward of 600 voters in a closely contested election, many of whom are now 
 proved to be duly qualified, and a majority of whom may have been, and by reason of the technical objec- 
 tions by which 185 votes have been rejected, exclusive of the votes polled on the fourth day in Washing- 
 ton County ."giving the seat to either of the candidates might be doing injustice to the electors of the 
 district, for it is impossible to determine which of the candidates did, in fact, receive a majority of the 
 l^al votes. 
 
 A majority of the committee have therefore come to the conclusion that it would be doing better 
 justice to the parties, and to the electors of the district, to give them another opportunity of expressing 
 their opinions upon the subject by a new election. 
 
 A minority of the committee,' while they are free to confess that, under the peculiar circumstances 
 of this case, they would not only be reconciled to, but better satisfied with, such a result, if they could 
 have felt themselves at liberty to unite in it, are nevertheless of opinion that the sitting Member, having 
 received a majority of the legal votes, upon the principles assumed, is entitled to the seat, and are there- 
 fore constrained to dissent from the resolution proposed by the majority. 
 
 The resolution submitted by the majority was as follows: 
 
 Resolved, That the seat of Charles C. Johnson, the sitting Member from, etc. * * * be vacated, 
 for irr^ularities in the election, and that the Speaker of the House transmit to the executive of Virginia 
 a copy of this resolution, to the end that a new election may be ordered. 
 
 On May 26, 1832, when the resolution was considered in the House, and by a 
 vote of 85 to 35,' all after the word resolved was stricken out, and the following was 
 inserted: "That Charles C. Johnson, the sitting Member, is entitled to his seat." 
 The amended resolution being agreed to, the majority of the committee were over- 
 ruled, and the title of sitting Member w^as confirmed. 
 
 784. The North Carolina election case of Newland v. Graham in the 
 Twenty-fourth Congress. 
 
 The State law preventing voters from testifying as to the ballots cast 
 by them, the Elections Committee did not admit declarations as next 
 best evidence. 
 
 A question as to the correction of the mistake when ballots for Con- 
 gressmen are deposited in the wrong ballot box. 
 
 On February 24, 1836,^ the Committee on Elections reported in the case of 
 Xewland v. Graham, from North Carolina. In this case the sitting Member was 
 returned by a majority of seven votes, and the contest was based on the charge that 
 illegal and unqualified votes had been given for the sitting Member, and that legal 
 and qualified votes offered for the contestant had been rejected. 
 
 ' It is to be obsers'ed that the minority dissent is voiced in the report, and not presented separately 
 as "minority views." 
 
 •^ The Journal does not show any division. The figures of the vote are given on p. 714 of Contested 
 Elections (Clarke). 
 
 ' First session Twenty-fourth Congress, Contested Elections (1 Bartlett), p. 5; Contested Elections 
 (Rowell), p. 105; House Report No. 378.
 
 X014 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 785 
 
 In the first place the committee decHned to accept as evidence declarations not 
 made under oath of certain persons, alleged to be disqualified for voting, who declared 
 after the election that they had voted for the sitting Member. The election was by 
 ballot, and the State law provided that voters should not be compelled to give evi- 
 dence for whom they voted. Hence the contestant urged that the declarations were 
 the best evidence obtainable by him. The committee refused leave to admit the 
 declarations. 
 
 The committee then proceeded to consideration of bad or illegal votes proven 
 by other evidence than the declaration of voters. In this rectification of the vote 
 the committee reversed the action of the election judges at Asheville, who struck 
 from the poll three votes allowed by the judges at Henderson. The law of the State 
 gave the judges at one place of election no such power to alter the return of judges 
 at another place. The committee also passed upon certain votes legally offered at 
 the election and illegally refused. 
 
 The result of the examination by the committee reversed the majority, and 
 showed the election of the contestant. 
 
 The cormnittee furthermore found a condition which they did not attempt to 
 pass on. There were used separate ballot boxes, and in some cases ballots intended 
 for the Congressional box were put into the legislative box, and vice versa. The 
 judges, who seem generally to have received the ballots from the voters and put 
 them in the boxes, corrected these errors. The committee did not ascertain the 
 number of such corrections, and left the question to the House, saying: 
 
 The committee found, on reference to the case of Washburn and Ripley, that the House had 
 refused to interfere with a decision of the judges of election in that case, who declined correcting the 
 mistakes made in that election by depositing the ballots in the wrong boxes. The judges of this elec- 
 tion in Maine, it seems from this case, did not consider it to be in their power to correct suoh a mistake. 
 They may have considered that they had no means of ascertaining whether it was a mistake or not. 
 It appears, from that case, that the ballots were put into the boxes by the voters themselves, and it 
 would seem, from several of the depositions in this case, that the ballots were usually handed to one 
 of the judges or inspectors of the election, and by him deposited in the ballot box, as the law ot North 
 Carolina requires. In this case, then, the mistake having been made by one of the judges, and not 
 by the voter, who had done everything in his power toward the fair exercise of his privilege, the judges 
 have considered it their duty to correct their own mistakes and give the voter his vote; and as they 
 considered that they had the means of fairly correcting the mistake, they did so openly, and without 
 objection of the friends of either candidate. Under such circumstances the committee leave it to 
 the House to say whether their proceedings should not be respected. 
 
 The minorit}^ views called attention to the fact that after the correction by 
 the judges the number of votes in the Congressional box exceeded the names on the 
 poll list by five, and held that, irrespective of precedent, the five votes should be 
 deducted from contestant. 
 
 785. The case of Newland v. Graham, continued. 
 
 Discussion as to the sufficiency of a notice of contest which did not 
 give particular specifications. 
 
 Discussion as to the admissibility of testimony taken when one of the 
 parties considered himself unable to attend. 
 
 A question as to whether the duties of sitting Member to the House 
 excuse him for neglecting to attend on taking of testimony in an elec- 
 tion case.
 
 § 785 GENEKAL ELECTION CASES, 1789 TO 1840. 1015 
 
 Without very strong reasons showing the necessity, the Elections 
 Committee does not extend the time of taking testimony. 
 
 Under the old practice of the House testimony in election cases was 
 taken according to State law. 
 
 The proceedings in taking testimony were conducted in accordance with the 
 law of North Carolina, but the sitting Member having objected to the reception of 
 the depositions, the committee decided that they had been taken conformably to the 
 laws of North Carolina on the subject, and the usage being well established to 
 allow depositions to be read which had been taken and sworn to according to the 
 laws of the State, and it appearing reasonable that depositions thus taken on similar 
 notices from both parties, and in the presence (with one exception) of both parties 
 or their agents, decided that they were sufficient and should be received. 
 
 Tlie minority views, presented by Mr. Nathaniel H. Claiborne, of Virginia, 
 and signed by three other members of the committee (the report itself was pre- 
 sented by ilr. Linn Boyd, of Kentuclr\', and signed by foin- other members of the 
 committee) went into this subject rather more fully. It seems that the sitting 
 Member had at the outset objected to the reception of the depositions for the reason 
 that the notices to take them, served on liim, did not state the subject-matter 
 about which the witnesses were to be examined, nor the names or residence either 
 of the witnesses or of the persons whose votes were to be impeached. And for the 
 further reason that a sufBcient time was not allowed him to attend in person at the 
 several places where depositions were to be taken. 
 
 In repl}^ to this Mr. Boyd, chairman of the committee, said in debate ' that 
 the majority of the committee had decided in favor of the sufficiency of the notice. 
 It was not so specific as the law of Virginia required in such cases, but was as spe- 
 cific as had been required by the practice of the committee. These were points 
 the decision of wlaich would affect the competency of all the testimony having 
 an injurious bearing on the interests of the sitting Member. If decided in liis 
 favor it would obviate the necessity of any further action on the subject. 
 The minority further say that the committee, without deciding as to this 
 objection, "provisionally adopted the rules of evidence which obtain in coiu"ts of 
 justice. Subjected to these tests, much the greater portion of the depositions 
 were rejected as illegal, as coming imder the denomination of hearsay testimony. " 
 * * * As to the testimony taken in one instance, "the sitting Member was not 
 present either in person or by counsel, or, in other words, that the depositions are 
 ex parte. The sitting Member acknowledges that notice was served on him, but he 
 alleges that a moral obligation, growing out of the relations in which he stood to his 
 constituents, called him to Washington * * * and that a friend on whom he 
 rehed to act * * * for him was unavoidably absent. * * * "Yhe conse- 
 quence of the nonattendance of his agent was that no cross-examination was 
 had." The minority contend that as it was impossible for the sitting Member to 
 be both in Washington and at the place of taking evidence, and as the option of 
 attending in person or by attorney was virtually denied him, there was no just 
 cause to impute laches to the sitting Member, and therefore the depositions in ques- 
 tion should be rejected. In support of this view they cite the case of William Allen 
 
 ' Globe, p. 231.
 
 1016 PRECEDENTS OF THE HOUSE OF BEPRESENTATIVES. § 786 
 
 in the Twenty-third Congress. The minority recommend that if the House do not 
 concur in this view further time should be permitted the sitting Member to take 
 
 testimony. 
 
 The House debated at length the question whether or not the sitting Member 
 could reasonably have been expected to be in attendance in person or by attorney 
 at this place of taking testimony.* 
 
 The sitting Member then asked for a longer time to collect evidence. The 
 committee decided that without very strong reasons to show the necessity of further 
 proof (which the committee did not see in this case) they considered that the right 
 of contesting a seat in Congress would be useless and nugatory, if such postpone- 
 ments and protracted appointments for taking additional evidence after the meet- 
 ino' of Congress should be allowed when the parties had already had the same time, 
 and as it appeared a sufficient time to take testimony. The committee further 
 say that "they could find no precedent in which an application of a similar kind, 
 even if made at an earher period, had been granted, but several in which, not- 
 withstanding the existence of more favorable circumstances, such applications had 
 been rejected, both by committees of election and by the House." 
 
 786. The case of Newland v. Graham, continued. 
 
 Evidence taken after the Committee on Elections had reported was not 
 formally considered by the House in deciding the contest. 
 
 The committee having reported a conclusion in an election case, the 
 House declined to pass judgment on the propositions leading to the con- 
 clusion. 
 
 The sitting Member, after this decision of the committee, went to North Caro- 
 lina and took additional testimony. The petitioner, as appears from the debates, 
 declined to appear and cross-examine. The depositions so taken were presented 
 to the House after the report of the committee had been made. 
 
 The case coming up for debate in the House, a motion was made by the sitting 
 Member on March 24 " that these depositions wliich were on the Speaker's table 
 be taken into consideration by the House in considering the report. Much of the 
 debate in the case was on this motion. Mr. Henry A. Wise, of Virginia, contended 
 that the practice of law and equity courts showed that this testimony should be 
 considered. On the other hand, it was pointed out that it was unprecedented to 
 consider testimony taken after the case was made up. The petitioner stated that 
 he had declined to cross-examine during the taking of this testimony, believing the 
 procedure to be imwarranted. Mr. Levi Lincoln, of Massachusetts, arguing in 
 favor of the motion to consider the testimony, held that an election case was con- 
 stitutionally a proceeding before the House, and that the House and not the com- 
 mittee were the triers. 
 
 The motion to consider the evidence on the table was made as an amendment 
 to the resolutions reported by the committee, and on March 26 the sitting Member 
 withdrew it.' But immediately Mr. Abraham Kencher offered the same proposition 
 in connection with other propositions relating to details of evidence. This proposi- 
 
 ' Globe, pp. 231, 240, etc. ^ Globe, pp. 258, 259, 262. = Journal, p. 566.
 
 § 787 GENERAL ELECTION CASES, 1789 TO 1840, 1017 
 
 tion of Mr. Rencher was, after further consideration, set aside by the ordering of 
 the previous question on the resolutions of the committee.' 
 The committee reported two resohitions: 
 
 Resolved, That James Graham is not entitled to a seat in this House. 
 Resolved, That David Newland is entitled to a seat in this House. 
 
 The report was the subject of long debate on questions relating to the appear- 
 ance of sitting Member by counsel and a proposition to consider testimony pre- 
 sented to the House after the report was made; and then, on March 26,' Mr. Abraham 
 Rencher, of North Carolina, moved to substitute for the resolutions reported from 
 the committee a series of resolutions expressing the opinion of the House as to the 
 various questions involved in the case, leaving the final result to be determined by 
 the result of the decisions on the minor questions. 
 
 It was at once objected ^ that for the House to attempt to pass on these details 
 would be to experience the perplexities caused by a similar procedure in the case 
 of Moore v. Letcher. 
 
 On March 29 * the previous question was ordered on the resolutions reported 
 by the committee, Mr. Rencher's proposition being thereby set aside according to 
 the practice at that time. The previous question was ordered by a vote of yeas 111, 
 nays 88. 
 
 Then the resolution declaring Mr. Graham not entitled to a seat was agreed to 
 
 yeas 114, nays 87. 
 
 The resolution declarmg David Newland entitled to a seat was disagreed to 
 
 yeas 99, nays 100. 
 
 Thereupon the following resolution was agreed to: 
 
 Resolved, That the election held in North Carolina in last August, for a Representative of the 
 Twelfth Congressional district of that State in the House of Representatives of the United States, be 
 set aside; and the seat of such Representative is hereby declared vacant; and that the Speaker of this 
 House inform the governor of North Carolina of the fact. 
 
 In the course of the debate on this case the charge was made that party con- 
 siderations were influencing the decision, as it was charged that they had in the 
 case of Moore and Letcher.^ 
 
 787. The Senate election cases of Smith, Winthrop, Phelps, and Cass. 
 
 The question as to when the term of service of a Senator appointed 
 by a State executive to fill a vacancy ceases. 
 
 Samuel Smith was Senator from Maryland from March 4, 1803, and on the 
 expiration of his first term, viz, March 3, 1809, the legislature of Maryland not 
 having elected his successor, and not then being in session, he was appointed by 
 the governor on March 4 to fill the vacancy until the next meeting of the legislature, 
 which would take place on the 5th of June next. Thereupon Mr. Smith addressed 
 a letter to the Senate, setting forth these facts, and submitting to its determination 
 the question whether the appointment would or would not cease on the first day of 
 the meeting of the legislature. It was determined that he was entitled to hold his 
 
 ' Journal, p. 595. * Journal, pp. 595-598. 
 
 ^Journal, p. 566. 'Globe, p. 262. 
 
 3 Globe, p. 263.
 
 1018 PKECEDENTS OF THE HOUSE OF EEPBESENTATIVES. § ''^88 
 
 seat in the Senate during the session of the legislature, unless the legislature should 
 fill such vacancy by the appointment of a Senator, and the Senate be officially 
 informed thereof. Under these credentials Mr. Smith held his seat during the 
 special session of the Senate March 4-7, 1809, and during the first session of the 
 Eleventh Congress (May 22 to June 28, 1809). On the 16th of November following 
 he was elected by the legislature, and on December 4, in the next session of Con- 
 gress, he produced his credentials of election and the oath was administered.' 
 
 788. Robert C. Winthrop was appointed Senator from Massachusetts July 
 27, 1850, to fill a vacancy happening in the Senate by the resignation of Daniel 
 Webster. February 1, 1851, Robert Rantoul was elected by the legislature to fill 
 the unexpired term. February 4, Mr. Rantoul not having appeared to take the 
 seat, Mr. Winthrop offered a resolution, which was agreed to, "that the Committee 
 on the Judiciary inquire and report to the Senate, as early as practicable, at what 
 period the term of service of a Senator appointed by the executive of a State during 
 the recess of the legislature thereof rightfully expires." The committee reported that 
 a person so appointed had a right to the seat until the legislature, at its next meet- 
 ing, should elect a person to fill the unexpired term, and the person elected should 
 accept, and his acceptance appear to the Senate; that presentation of credentials 
 implied acceptance; that these views were sustained by precedents. The report 
 was debated, but no action taken, the whole subject being laid on the table. Mr. 
 Winthrop vacated the seat February 7, 1851, when Mr. Rantoul's credentials were 
 presented.' 
 
 789. On May 29, 1848,' Mr. Lewis Cass resigned his seat as a Senator from 
 Michigan and on Jime 20, 1848, Mr. Thomas Fitzgerald, appointed by the governor 
 of Michigan to fill the vacancy, appeared with his credentials and took his seat. 
 The Michigan Manual/ shows that Lewis Cass was elected Senator from Michigan 
 on January 20, 1849; but Mr. Fitzgerald continued to serve until March 3, 1849, 
 the last day of the Congress, as is shown by the fact that on that date he presented 
 the credentials of Mr. Cass, who thereupon took the oath and his seat.^ 
 
 790. Samuel S. Phelps," Senator from Vermont, was appointed by the gov- 
 ernor of Vermont January 17, 1853, during the recess of the legislature, to fill a 
 vacancy in the Senate happening by the death of William Upham. His credentials 
 were presented and he took his seat January 19. The legislature met in October 
 and adjourned in December without electing a Senator to fill the unexpired term. 
 Mr. Phelps had held the seat during the remainder of the second session of the 
 Thirty-second Congress, ending March 3, and during the special session of the Senate 
 March 4 to April 11. December 29 he again attended. January 4, 1854, the Senate 
 resolved that the Committee on the Judiciary inquire whether he was entitled to 
 retain his seat. January 16 the committee reported the resolution, "that the Hon. 
 Samuel S. Phelps is entitled to his seat in the Senate of the United States." It was 
 
 ' First session Eleventh Congress, Annals, pp. 15-25. 
 
 2 Second session Thirty-first Congress, Globe, pp. 425, 437, 459, 477, 478; Senate Report No. 269. 
 
 ' First session Thirtieth Congress, Globe, p. 792. 
 
 n905, p. 218. 
 
 ' Second session Thirtieth Congress, Globe, p. 681. 
 
 ^ First session Thirty-third Congress, Senate Report No. 34.
 
 § 790 GENERAL ELECTION CASES, 1789 TO 1840. 1019 
 
 accompanied by a minority report adverse to the right of ^Ir. Phelps to a seat. 
 March 16 the resolution reported by the committee was rejected by a vote of 12 
 yeas to 26 nays, and it was "Resolved, That the Hon. Samuel S. Phelps is not 
 entitled to retain liis seat in the Senate of the United States." ' 
 
 ' The power of the executives of States to fill vacancies in the offices of United States Senators, 
 and the status and terms of service of Senators thus appointed, has been passed on many times by the 
 Senate. See cases of Kensey Johns, Uriah Tracy, Samuel Smith, Ambrose H. Se^•ier, Robert C. Win- 
 throp, Samuel S. Phelps, Charles H. Bell, Henry W. Blair, Horace Chilton, Lee Mantle, Ansel C. 
 Beckwith, John B. Allen, Henry W. Corbett, Andrew T. Wood, John A. Henderson, Matthew S. Quay, 
 and Martin Maginnis. (Senate Election Cases, special session Fifty-eighth Congress, Senate Document 
 No. 11, pp. 1, 3, 4, 7, 10, 16, 26, 36, 48, 52, 85, 89, 103, 105, 107.
 
 Chapter XXVI. 
 
 GENERAL ELECTION CASES, 1840 to 1850. 
 
 1. The "Broad seal case" in the Twenty-sixth Congress. Sections 791-802. 
 
 2. Cases from the Twenty-sixth to the Thirty-first Congresses. Sections 803-820.' 
 
 791. The election case of the New Jersey Members in the Twenty- 
 sixth Congress, called the " Broad seal case." 
 
 An instance wherein the House, at the time of organization, declined 
 to give prima facie effect to credentials in due form, but impeached by 
 documents relating to the fact of election. 
 
 The House having historic knowledge of an election contest, referred 
 the subject to the committee with instructions, although neither party 
 was petitioning. 
 
 The House having, of its own motion, decided to examine an election, 
 a copy of the resolution was served on the parties. 
 
 On December 2, 1839, when the House met to organize for the Twenty-sixth 
 Congress, a question arose as to the right to seats of five persons claiming seats from 
 New Jersey by virtue of the certificate which each bore from the governor of the State. 
 These credentials were in due form and under the seal of the State, whence arose the 
 designation of the resulting proceedings as the "Broad seal case." In opposition to 
 the claim of the duly certified claimants there appeared five other claimants, with 
 documents tending to show their actual election. After a long struggle, in the course 
 of which the five certified claimants were not permitted to vote for Speaker, the 
 House was organized ' and proceeded to business, five of the New Jersey seats 
 remaining vacant, and there being ten claimants thereto. 
 
 ' Additional cases in this period, classified in different chapters, are: 
 
 Twenty-eighth Congress, cases of New Hampshire, Georgia, Mississippi, and Missouri Members. 
 Section 309. 
 
 Twenty-ninth Congress, Newton, Arkansas. Sections 489, 572. 
 
 Twenty-ninth Congress, Baker and Yell. Sections 488, 572. 
 
 Thirtieth Congress, Sibley, Wisconsin. Section 404. 
 
 Thirty-first Congress, Gilbert and Wright, California. Section 520. 
 v-Thirty-first Congress, Babbitt, Deseret. Section 407. 
 vgMrty-first Congress, Smith and Meservey, New Mexico. Section 405. 
 \ Thirty-first Congress, Perkins and Morrison, New Hampshire. Section 311. 
 
 ^ See section 103 of this work for a more detailed account of the proceedings in organization. 
 1020
 
 § 791 GENERAL ELECTION CASES, 1840 TO 18S0. 1021 
 
 On January 1 , 1840,' Mr. John Campbell, of South Carolina, who was chairman 
 of the Committee on Elections, offered under suspension of the rules the foUovv'ing 
 resolutions : 
 
 Resolved, That all papers or other testimony in possession of or within the control of this House in 
 relation to the late election in New Jersey for Representatives in the Twenty-sixth Congress of the 
 United States be referred to the Committee of Elections, with instructions to inquire and report who are 
 entitled to occupy, as members of this House, the five contested seats from that State. 
 
 Resolved, That a copy of this resolution be served on [naming the ten claimants], all citizens of New 
 Jersey, claiming to be Representatives from that State in this Congress; and that the service be made 
 upon each gentleman personally or by leaving a copy at his usual residence. 
 
 The rules being suspended and the resolution admitted for consideration, Mr. 
 John Bell, of Tennessee, proposed a substitute amendment as follows: 
 
 That Philemon Dickerson, Peter D. Vroom, William R. Cooper, Daniel B. Ryall, and Joseph Kille, 
 who are in attendance claiming to be admitted to sit and vote in this House as Representatives from the 
 State of New Jersey, are not, and can not be, legally and constitutionally. Members of this body, until 
 the regular returns or certificates of election granted to five other duly qualified persons by the governor 
 and council of said State, in the exercise of the authority vested in them by the laws of said State, 
 passed in conformity with the Constitution of the United States, shall have been set aside, or adjudged 
 void, upon due investigation had, in the form and manner prescribed by the usages of the House. 
 
 Resolved, That the House having decided that John B. .\ycrigg, William Halsted, John P. B. Maxwell, 
 CharlesC. Stratton, and Thomas Jones Yorke, the persons having the regular and legal certificatesof elec- 
 tion, shall not be admitted to sit in this House and vote as other Members until it shall have been estab- 
 lished, by sufficient proof, that there was no fraud, mistake of the law, or other error, made or committed 
 by the governor and council of New Jersey in the returns or certificates of election granted as aforesaid; 
 and said decision being contrary to the usual practice of the House in such cases, the Speaker be directed 
 to notify the governor and council of New Jersey that the commissions issued by him, according to the 
 laws of said State, to John B. Aycrigg, John P. B. Maxwell, William Halsted, Charles C. Stratton, and 
 Thomas Jones Yorke have not been deemed sufficient by the House to authorize those holding the same 
 to be sworn in as Members of this House; also the proceedings of the House in the premises, to the end 
 that the people of said State may be duly informed of the causes which have for the present deprived 
 them of the services of five of the Representatives to which they are entitled by the law and Constitution. 
 
 Resolved, That the returns and all other papers or testimony in possession of the House relating to 
 the five vacant seats in the New Jersey delegation be referred to the Committee of Elections; that said 
 committee proceed to examine the returns and all other testimony which may be submitted to them, 
 according to the rules and orders of the House, and that said committee first decide and report to the 
 House who are entitled to sit and vote as Members by the returns. 
 
 The resolution and proposed substitute were debated at length.^ Mr. Campbell, 
 in presenting his resolution ^ stated that it was usual for gentlemen contesting seats 
 to bring their claims before the House by petition or memorial. But as they had 
 waited from day to day without any movement fi-om either of the parties he conceived 
 it his duty as chairman of the Committee on Elections to bring the matter before 
 the House. 
 
 Some objection was made to this view. Mr. Isaac Fletcher, of Vermont, 
 thought no question could arise until the claimants should present themselves to be 
 sworn, meaning evidently the five not having certificates, as those having certificates 
 had demanded to be sworn and had been refused. Mr. John Quincy Adams, of 
 
 'First session Twenty-sixth Congress, Journal, pp. 185, 187; Globe, pp. 105, 106. 
 2 Globe, pp. 105, 108, 109, 113, 118, 119. 
 ' Globe, p. 105.
 
 ]^022 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 792 
 
 Massachusetts, thought there was no objection to the resolution, but conceived that 
 first the Speaker should be du-ected to inform the executive of New Jersey that liis 
 commissions had been rejected. Mr. Millard Fillmore, of New York, raised a 
 question as to whether or not there was any evidence in possession of the House. 
 He did not think there could be any unless it had been referred to it. Furthermore, 
 was the whole question to be referred, or only the question as to who in the first 
 instance were to be regarded as sitting Members. 
 
 Mr. Campbell stated that the credentials were already in possession of the 
 House, and that the Committe on Elections would expect to decide not only as to 
 final right, but also as to who were entitled to the returns. 
 
 On January 13' the House, without division, ordered the previous question, 
 thereby, according to the practice of that date, removing from before the House the 
 amendment proposed by Mr. Bell. Thereupon the House— by a vote of yeas 110, 
 nays 68 — agreed to the resolutions proposed by Mr. Campbell. 
 
 792. The " Broad seal case," continued. 
 
 The Elections Committee, at the outset of an investigation, called on 
 the claimants to state in writing the grounds of their respective claims. 
 
 Position of the claimants relating to prima facie right in the " Broad 
 
 seal case." 
 
 The Committee on Elections met on January 14, 1840.^ It was constituted as 
 follows: Messrs. John Campbell, of South Carolina; Millard Fillmore, of New York; 
 Francis E. Rives, of Virginia; William Medill, of Ohio; George W. Crabb, of Ala- 
 bama; Aaron V. Brown, of Tennessee; Charles Fisher, of North Carolina; Truman 
 Smith, of Connecticut, and John M. Botts, of Virginia. 
 
 This committee at the outset received from the Clerk of the House certain 
 papers: (1) The credentials by the governor; (2) remonstrance of J. B. Aycrigg et al, 
 (3) proceedings of the governor and privy council of New Jersey; (4) depositions; (5) 
 retiu-ns, tabular statements, certificate of the secretary of state of New Jersey, etc. 
 
 It was ordered by the committee that the various claimants be notified of the 
 organization of the conunittee, and at a later session it was. 
 
 Resolved, That the claimants to the vacant seats from New Jersey be requested to lay before the 
 committee, in writing, the grounds of their respective claims to said scats, and that they be confined to 
 a statement of such facts as they propose to prove by testimony before the committee, together with any 
 legal points they may choose to submit. 
 
 In these statements of grounds the fundamental questions involved in the case 
 were set forth.' The claimants who bore the regular credentials urged— 
 
 The undersigned, Representatives of the State of New Jersey in the Twenty-sixth Congress, pro- 
 testing, in behalf of the State and themselves, against all acts of the other Members of the House of 
 Representatives, as well since as before the election of a Speaker, in derogation of the rights of said 
 State and of her Representatives, and disclaiming, now and ever, all acquiescence therein; and also 
 respectfully protesting against so much of the resolution adopted by the Committee of Elections on the 
 15th instant as implies that the seats of the Representatives of New Jersey are vacant, and designates 
 the undersigned as claimants — in compliance with the request in said resolution, lay before the com- 
 mittee the following as the grounds upon which they are Members of the House of Representatives, 
 and claim to be recognized as such: 
 
 1 Journal, pp. 195, 196. ^ House Report No. 506. ' Report No. 506, pp. 3, 6, 8, 9.
 
 § 792 GENERAL ELECTION CASES, 1840 TO 1850. 1023 
 
 That the undersigned have received, and now produce, the commissions of the State of New 
 Jersey, under the great seal and signed by the governor, constituting them Representatives of said 
 State in the Twenty-sixth Congress; which commissions, thus duly authenticated in the manner pre- 
 scribed by the laws of the State, are the only return and evidence of membership recognized by said 
 laws. 
 
 That the said commissions were given, in conformity with said laws, to the persons whom the 
 governor and pri\y council, after casting up the whole number of votes from the several counties, deter- 
 mined to have the greatest number of votes from the whole State. 
 
 That these commissions, by the Constitution of the United States, by the laws of New Jersey, 
 by the uniform and unvar>-ing practice of Congress since the origin of the Government, by the usage 
 of all similar bodies, and by the very principles upon which representative governments are organized, 
 are sufficient and conclusive evidence of right, untU set aside by the House of Representatives 
 in the exercise of its constitutional powers. 
 
 That they have never been set aside by any competent authority and have never yet been im- 
 peached by any legal evidence whatever. 
 
 The undersigned have received notice from Messrs. Philemon Dickerson, Peter D. Vroom, Daniel 
 B. Ryall, William R. Cooper, and Joseph Kille that they intend to contest the right of the undersigned 
 to seats as Members of the Twenty-sixth Congress; and are also informed (though without notice from 
 them) that the ground of their claim is that the votes of the townships of Millville, in Cumberland, 
 and of South Amboy, in Middlesex County, which were not legaUy returned, should be counted; and 
 that these votes, added to those legally returned, would give them a majority. The undersigned, 
 therefore, apprise the committee that, in any investigation respecting the election beyond the cre- 
 dentials by which they appear here as Members, they will claim the right to prove that they were duly 
 elected Members of the House of Representatives by a majority of all the legal votes at said election, 
 as well as by a majority of the votes legally returned. 
 
 The claimants who had not received credentials presented their claim in part 
 as follows: 
 
 We claim those seats, and we now propose to prove that at the election holden in New Jersey 
 on the 9th and 10th days of October, A. D. 1838, we received the greatest number of votes from the 
 whole State. We, having the majority of votes, respectfully insist that, by the returns of the several 
 election officers then made, we were entitled to the commissions from the governor, and we are now entitled 
 to occupy the seats as Members of this House. 
 
 As there appears to be some difference of opinion as to the meaning of the terms elections and 
 returns, as used in the Constitution of the United States, it is proper for us at this time to express our 
 views upon the subject, in order that we may not be misunderstood. 
 
 We consider that the elections are made by the people, and the returns by their agents. The 
 election ceases when the ballot box closes; the people have then done their duty and made their elec 
 tion. It then becomes the duty of their agents, appointed by law for that purpose, to make the returns; 
 and the whole object of those returns is to communicate to this House the true result of such election' 
 A contest of election involves an inquiry into the legality and regularity of the proceedings up to the 
 tune of the close of the ballot box; and a contest of the returns involves an inquiry into the legality 
 and regularity of the proceedings of the different officers, in communicating the result of such election 
 to this House. By the laws of New Jersey the election officers of each township make their returns 
 to the county clerks of the several counties; and they make their lists, or returns, to the governor- 
 and upon these he issues his commission. ' 
 
 For the purpose of establishing the fact that at the election held for Members of the Twenty- 
 sL-cth Congress we received the greatest number of votes from the whole State, we offer the certificate 
 of the secretary of state of the State of New Jersey, under his seal of office, showing that upon an exam- 
 ination of the returns in his office, including the returns of the townships of South Amboy, in Middle- 
 sex, and Millville, in Cumberland County, we had a majority of all the votes in the State- and as the 
 foundation of that certificate we also offer a certified copy of the statement of votes upon which the 
 governor and his council made their determination, embracing the votes of all the State except those 
 of South Amboy and Millville; and also copies of the returns from those two townships, as filed in
 
 1024 
 
 PRECEDENTS OF THE HOUSE OF EEPBESENTATIVES. § 793 
 
 the office of the secretary of state, and referred to by him in his general certificate; and as further evi- 
 dence of the returns of those two townships we offer copies of the returns made by the officers of the 
 elections of those townships to the clerks of the said counties, and by those clerks duly certified under 
 their respective hands and seals of office. 
 
 These papers were laid before the Clerk of this House before the meeting of Congress; and are 
 now offered as legal evidence of the fact that we received the greatest number of votes from the whole 
 
 State. 
 
 ^j » « * » * * 
 
 In further support of our claim, and for the purpose of making its truth and justice more mani- 
 fest we offer to the committee, for their consideration, a sworn copy of the minutes of the proceedings 
 of the governor and his privy council upon this case, by which it appears that the returns from South 
 Amboy and Millvillo were laid before the council by the governor himself, and were referred to a com- 
 mittee, with the other returns from the State; that they were rejected because they were not trans- 
 mitted by the clerks of the said counties of Cumberland and Middlesex, and for no other reason; and 
 that they proceeded to count up the votes of the State, excluding those from the said townships of 
 South Amboy and Millville, and determined that Mr. Aycrigg and his associates were duly elected 
 Members of the Twenty-sixth Congress, although it appeared from the returns before them that the 
 votes of said townships, if counted, would have changed the result. 
 
 By the laws of New Jersey the governor and his privy council shall "determine the six persons 
 who have the greatest number of votes from the whole State;" "which six persons the governor shall 
 forthwith commission under the great seal of the State." Such are the words of the act. The governor 
 in his opinion to his privy council uses the following language: " WTiat does the law direct the governor 
 to lay before the privy council? The said lists, referring manifestly to the lists transmitted by the 
 county clerks, which have been mentioned immediately before. What are the governor and privy 
 coimcil to do with the lists thus laid before them? They are to cast up the votes. When this is done, 
 what are they to determine? WTio are entitled, under all the circumstances, to seats in Congress? No; 
 but they are to determine the six persons who have the greatest number of votes. No language can be 
 plainer. Was it ever intended by our laws to make the governor and his privy coimcil the arbiters of 
 an election? There is no power conferred on us to examine a single witness, to send for persons or 
 papers, or to take one step toward a judicial investigation. If we may go behind the return of the county 
 clerks to those of the township officers, why should we stop there? We may by the same authority and 
 with equal reason undertake to examine the proceedings of those township officers at the polls. Who 
 has ever dreamed of the governor and privy council of New Jersey setting themselves up to decide on 
 any of these matters? They always have been and, from the very words of the act, must be confined 
 to the clerk's returns and to the duty of casting up the votes." Here we have the law and the gov- 
 emor'sopiniononthatlaw; from both of which it is most manifest that the duty of the governor and 
 council was to determine, in the first place, the six persons who had the greatest number of votes from 
 the whole State. It is upon that determination that the governor is authorized to issue his commission; 
 and yet, upon looking into their own record, it appears that they did not determine the six persons who 
 had the greatest number of votes from the whole State, but, in the teeth of the governor's opinion and of 
 the law, they determined who, "under all the circumstances, were entitled to seats in Congress," and 
 made their adjudication in the following words: "We do determine that John B. Aycrigg, John P. B. 
 Maxwell, William Halstcd, Joseph F. Randolph, Charles C. Stratton, and Thomas Jones Yorke are 
 duly elected Members of the Twenty-sixth Congress of the United States," when they knew, and their 
 own record shows, that those gentlemen had not the greatest number of votes and that they were not 
 duly elected Members of the Twenty-sixth Congress of the United States. We may at this time with 
 great propriety repeat the words of the governor: "Who ever dreamed of a governor and privy council 
 in New Jersey setting themselves up to decide any of these matters?" 
 
 793. The '' Broad seal case," continued. 
 
 In the " Broad seal case " the Elections Committee, while admitting 
 the prima facie effect of regular credentials, at first decided to investi- 
 gate only final right.
 
 § 793 GENEBAL ELECTION CASES, 1840 TO 1850. 1025 
 
 In the examination incident to the " Broad seal case " the Elections 
 Committee held votes received by authorized officers acting legally as 
 prima facie good. 
 
 Instance wherein testimony in an election case was, in the absence 
 of law or rule, taken by direction of the committee. 
 
 The committee, after the statements of the parties had been filed, proceeded 
 to determine the scope of the inquiry. The minority views, filed later and signed 
 by Messrs. Fillmore, Botts, Crabb, and Smith, give a resum6^ of these proceedings : 
 
 These statements were not completed and laid before the committee until the 23d day of January, 
 and it was ob-v'ious from an examination of them and of the resolution of the House referring the matter 
 that the committee must pursue one of two courses — that they must either make a preliminary report 
 awarding the vacant seats to one set of claimants until the whole subject could be investigated and the 
 final right determined, or proceed to a full and thorough investigation of the subject and decide upon 
 the merits of the whole case at once. 
 
 Eight members of the committee out of nine were in favor of submitting a preliminary report by 
 which the vacant seats would have been filled, but they differed as to the basis on which the report 
 should be founded. We entertained the opinion that it should be based on the legal returns of the only 
 authority recognized by the laws of New Jersey as authorized to grant the return, that being the highest 
 prima facie e\'idence of an election that could be presented, and which it has ever been the practice of 
 Congress and of all other legislative assemblies to treat as conclusive in the first instance; and accord- 
 ingly one of our members submitted the following proposition: 
 
 "Resolved, That this committee will now proceed to ascertain and determine who have the returns 
 according to the Constitution of the United States and the laws of New Jersey, which will authorize 
 them to occupy the contested seats from that State imtU the question of ultimate right can be deter- 
 mined." 
 
 Other gentlemen of the committee, differing with us in opinion, thought that the executive com- 
 missions should be entirely overlooked, and that it was the duty of the committee to proceed at once to 
 ascertain which party had received a majority of all votes, good and bad, given at the polls, and were 
 therefore entitled to the returns, and submitted amendments to that effect. 
 
 This view of the subject we deem utterly fallacious, but time will not permit us to enter into the 
 argument. The consequences resulting from this novel doctrine are well illustrated by the scenes of 
 disorder and confusion which resulted from its application at the present session^scenes in a high 
 degree discreditable to the House and endangering the peace of the country and which must greatly 
 impair the confidence of all right-thinking people in the perpetuity of our free institutions. 
 
 Upon a careful examination of the laws of New Jersey we ascertained that the governor and privy 
 council were mere ministerial ofiicers, charged with a certain specified duty, plainly set forth, viz, to 
 ascertain and determine which six of the persons voted for received the greater number of votes accord- 
 ing to the returns made by the clerks of the several counties of the State. That the indi\-iduals who 
 were commissioned by the governor of New Jersey as the Representatives of that State had received 
 the greatest number of votes thus returned according to law was a fact not disputed or denied. 
 
 Finding this difference of opinion, however, to exist in the committee as to the basis of a report, 
 the mover of the original proposition modified the same with the view of reaching the sense of the com- 
 mittee, and merely proposed, in general terms, that a preliminary report should be made designating 
 the individuals who should occupy the vacant seats until the question of ultimate right could be deter- 
 mined, thus manifesting a disposition to have the seats filled as the committee and the House might 
 determine according to their sense of justice and propriety. But, from an apprehension, as we pre- 
 siime, that they could not succeed in the untenable ground they had taken, that the report should be 
 made favorable to those who barely obtained a majority of all the votes, legal and illegal, given at the 
 election, the modified resolution was likewise resisted and a substitute offered which proposed to 
 inquire who were entitled to be returned as Members-elect, evidently on the ground of good and bad 
 votes, for when it was proposed to insert an amendment which would make the case turn on the majority 
 
 ' Report No. 506, p. 274. 
 5994 — VOL 1 — 07 65
 
 1026 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 793 
 
 of legal votes such amendment was strenuously resisted and carried only by the casting vote of the 
 chairman. This resolution, as ultimately adopted, was as follows: 
 
 "Resolved, That this committee will now proceed to ascertain which five of the ten individuals 
 claiming the five vacant seats from New Jersey received a majority of legal votes, and therefore are 
 duly elected Members of the Twenty-sixth Congress from that State, according to the Constitution of the 
 United States and the laws of New Jersey. 
 
 Thus it will be perceived that the committee came to an early determination to investigate the 
 ballot boxes and ascertain who were entitled to the seats on the ground of having received a majority 
 of legal votes, in which decision we acquiesced. 
 
 The minority then go on to describe how the committee made decisions that 
 the certificates of the governor of New Jersey were prima facie evidence that the 
 holders were entitled to the seats; but, after reconsidering a former action, finally 
 agreed on the following: 
 
 Resolved, That the credentials of the governor of New Jersey are prima facie evidence that they 
 who hold them are entitled to seats, but, being questioned on the ground that all the votes polled were 
 not counted, this committee will now proceed to inquire and ascertain who of the ten claimants for 
 the five contested seats received the greatest number of votes polled in conformity with the laws of 
 New Jersey, at the late election for Members of Congress in that State. 
 
 Resolved, That all votes received by authorized officers acting in conformity with the laws are 
 prima facie legal; but it being alleged and offered to be sustained by evidence that pluralities were 
 obtained by means of illegal votes and frauds perpetrated on the ballot box, this committee will admit 
 evidence as to the truth of these allegations, and inquire who of the claimants received the greatest 
 number of legal votes, in conformity with the Constitution of the United States and the laws of New 
 Jersey, and therefore are entitled to occupy, as Members of the Twenty-sixth Congress, the five con- 
 tested seats from that State. 
 
 Resolved, That the adoption of the above resolutions does not preclude this committee from reporting 
 the facts and testimony, with its opinion thereon, for the consideration of the House, at any stage of 
 its proceedings that it may deem it expedient to do so. 
 
 Resolved, That a copy of the foregoing resolutions be communicated to each of the claimants to 
 the vacant seats from New Jersey, and that they be informed that the committee has reconsidered and 
 indefinitely postponed the resolutions furnished them on the 28th instant, and that this committee will 
 hear them at their committee room on Saturday, the 1st of February, proximo, at 10 o'clock in the 
 forenoon, on the subject of the measures which should be adopted to obtain the evidence applicable 
 to the inquiry before the committee. 
 
 The parties accordingly met again in the committee room, and, after they were severally heard, 
 the conmiittee adopted the following resolution: 
 
 Resolved, That we will now take up the testimony which has been referred to this committee in 
 the New Jersey case, and if, during the investigation of the subject, it shall be desired by either party 
 to furnish additional testimony, that then the parties be allowed such reasonable time as may be deter- 
 mined by the committee, to take such additional testimony, in the manner prescribed by the laws of 
 New Jersey relating to contested elections, unless the parties agree upon some other mode which may 
 be sanctioned by the committee. 
 
 Thus, it will be perceived, that before a paper purporting to be testimony in this case was opened 
 by the committee, it was resolved to decide upon its competency alone; and it was further resolved 
 that time should be allowed either party requiring it, to take additional testimony, with a view, as we 
 supposed, of ascertaining the whole truth touching the merits of the election. 
 
 The minority views describe briefly how the committee took up and decided 
 on the admissibility of evidence, rejecting much as ex parte. Then, at the sugges- 
 tion of the parties, the committee agreed to the following: 
 
 Whereas the people of the State of New Jersey are at present deprived of five-sixths of their repre- 
 sentation in the House of Representatives, and it being highly expedient that a decision of the question 
 between the several claimants to the five contested seats in the House aforesaid be made as speedily
 
 § 794 GENERAL ELECTION CASES, 1840 TO 1850. 1027 
 
 as practicable consistent with due investigation and deliberation, and the contestors having alleged 
 that, if the committee go into an investigation of the question of who received the phu^lity of legal 
 votes they desire time also to take testimony; and J. B. Aycrigg, William Halsted, and others, having 
 made application to the committee for time to take further evidence to maintain their right to seats 
 in said House: Therefore 
 
 Resolved, That the chairman be requested to notify the several claimants aforesaid that this com- 
 mittee will not proceed to a final decision upon the question of ultimate right depending before them 
 until the second Monday in April next, at which time the committee will expect the proofs to be closed 
 and will not receive any testimony taken by either of the parties after that time, but nothing in this 
 resolution shall prevent this committee at any time before that day from taking up and deciding said 
 caae, if the parties shall declare themselves ready with all their testimony. 
 
 The minority views then proceed: 
 
 In justice to the chairman of the committee it should be stated that he indicated to the committee 
 an anxious wish that the time allowed for the completion of the proofs should be abbreviated, with a 
 ^■iew to bring the case, upon its merits, before the House at as early a day as practicable; and three of 
 the undersigned, in deference to the opinions and feelings of the chairman, cooperated with him in an 
 effort to procure a reconsideration of the above resolution, which was defeated by the votes of the other 
 members of the committee. 
 
 Nothing now remained to be done but to carry out the original plan as exhibited in the said reso- 
 lutions, and accordingly the following resolution was offered by one of the undersigned and adopted by 
 the committee: 
 
 "Resolved. That the parties to the contested election from the State of New Jersey be, and they 
 are hereby, authorized to take the testimony of such witnesses as either of them may desire to examine, 
 by depositions in conformity with the laws of that State in force at the time of taking any such testi- 
 mony, on the subject of contested elections in similar cases: Provided, That the parties may, by any 
 agreement under their hands, regulate the mode of gi\'ing notice and other matters of form at their 
 discretion." 
 
 Soon after the adoption of these resolutions the commissioned Members left the city for the State 
 of New Jersey to finish taking their evidence, where they still remain. We did not anticipate, nor 
 had we an intimation from any quarter, that further proceedings in the case were contemplated, either 
 in the committee or the House, until the expiration of the time allowed the parties to complete their 
 evidence. 
 
 794. The " Broad seal case," continued. 
 
 Instance wherein the House ordered its committee to report on prima 
 facie right before ascertaining final right. 
 
 Instance wherein the House, disregarding the certificate of the gov- 
 ernor, ascertained prima facie right on the returns of the local officers. 
 
 The Elections Committee, in determining prima facie right, declined 
 to open evidence relating to final right. 
 
 The Elections Committee declined to consider ex parte evidence in 
 determining prima facie right. 
 
 Overruling the Speaker, the House, in 1840, decided to receive as a 
 matter of privilege a report in an election case. (Footnote.) 
 
 At this point in the proceedings action by the House intervened. On Febru- 
 ary 14 * Mr. Campbell reported from the Committee on Elections this resolution: 
 
 Resolved, That the Committee of Elections be authorized to have such papers printed, under its 
 direction, as may be thought necessary to facilitate its investigations into the subjects referred to its 
 consideration. 
 
 ' Journal of House, p. 409.
 
 1028 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 794 
 
 Mr. Cave Johnson, of Tennessee, proposed an amendment so that the resolu- 
 tion should read as follows : 
 
 Resolved, That the Committee of Elections be authorized to report to this House such papers and 
 such other proceedings as they may desire to have printed by order of the House; and that they be 
 instructed also to report forthwith which five of the ten individuals claiming seats from the State of 
 New Jersey receiving the greatest number of [lawful] votes from the whole State for Representatives 
 in Congress of the United States at the election of 1838 in said State, with all the evidence of that fact 
 in their possession: Provided, That nothing herein contained shall be so construed as to prevent or 
 delay the action of said committee in taking testimony and deciding the said case upon the merits of 
 the election. 
 
 On February 28,' after long consideration, the word "[la^\'ful]" was inserted 
 on motion of Mr. Fillmore by a vote of yeas 97, nays 96, and then the resolution 
 as amended was agreed to, yeas 103, nays 90. 
 
 These instructions, when received in the Committee on Elections, were a 
 subject of disagreement. The majority of the committee in their report say: ^ 
 
 When the proposition to instruct was originally introduced as an amendment to the application 
 with which the committee had come before the House, its intent was clear that a report should be imme- 
 diately made of the names of those who had received the greatest number of votes at the late Congres- 
 sional election in New Jersey. If anything more was wanting to explain the meaning of this proposition, 
 it is to be found in the proviso which was added, and which clearly indicated that the action which 
 the House was moved to demand did not contemplate an interference with the course adopted by the 
 committee for the "taking of testimony and deciding the case upon the merits of the election." 
 
 Under these circumstances, if the proposition to strike out the word "forthwith" and insert the 
 word "lawful" had fully succeeded there would still have remained that prominent clause of proviso, 
 and it might well have been understood that, notwithstanding the omission of the word "forthwith," 
 the House desired an immediate report, and that, notwithstanding the insertion of the word "lawful," 
 the House contemplated that the report should be independent of testimony now in the process of 
 being obtained for the purpose of deciding the election upon its merits. 
 
 Upon what basis, then, could such a report be constructed? Manifestly not upon the partial, incon- 
 clusive, and incompetent testimony as to the legality of votes now in the possession of the committee. 
 The House can not have contemplated a report involving an investigation of the ballot boxes without 
 allowing time or opportunity for that investigation to be thorough. 
 
 The majority finally conclude that the House meant that a report be made on 
 "the prima facie case upon the returns of the local officers of the several polls." 
 
 The minority contended that the insertion of the word "lawful" had so modi- 
 fied the resolution that the committee would be justified in reporting as to the final 
 right, the word "forthwith" meaning only that it should be done without unneces- 
 sary delay. 
 
 The minority also contended that before reporting certain testimony described 
 in the following proposition should be examined : 
 
 That inasmuch as the depositions offered to this committee to prove that the poll of South Amboy 
 was not held in conformity to law were rejected by this committee on account of a defect of notice in 
 taking said depositions; and Mr. Smith, a member of this committee, has this morning presented a sealed 
 package, directed to the Speaker of the House of Representatives of the United States, to the care of 
 the Hon. J. Campbell, chairman of the committee, purporting to be depositions taken in the case of 
 the New Jersey election, under a resolution of this committee postponing the examination into the 
 ultimate right of the claimants until the second Monday in April next; and which the said Mr. Smith 
 asserts, on the authority of a letter received from Mr. Halsted, relates to the manner of conducting the 
 election at South Amboy, and the validity of the poll there holden: Therefore, 
 
 ' Journal, pp. 465, 469. ' Report, No. 506, p. 256
 
 § '^^^ GENERAL ELECTION CASES, 1840 TO 1850. 1029 
 
 Ordered That die said sealed package be sent forthwith to the Speaker, to the end that it may be 
 
 1Th°^11 ITh '""T''}"' ^Ilproceed to examinesaid new deposition, and to determine whether 
 Baid poll was held in conformity with law. 
 
 But the committee declined by a vote of 5 to 2 to agree to the order 
 The majority of the committee say that on the inconclusive testimony in their 
 possession it would be unsatisfactory and unjust to look beyond the face of the poll 
 and continue: ^ ' 
 
 be deducted from those who received the greatest number at the polls which appear to have been held in 
 confomuty with law the result would not affect the right of any candidate to a seat 
 
 With thiB expWion, which they have considered due to the House and to themselves, the com- 
 
 ZZu^ ""''~"1*°'"T' *': '"''°""''°'" ^="^''"' the validity of certain township ekctions,^ 
 far as such an examination can be made upon the testimony in their possession 
 
 Upon this branch of the case the claimants holding the governor's commissions claim- 
 nf xfn"^iV T^^''^P^rtf""^.tl»eirnot being received in time to be counted according to law the votes 
 of M,lh.Ue should beset aside for the fraudulent and illegal conduct of the officers of elections np " 
 claiming their intention to receive the votes of aliens, and in receiving a large number of such knowingly 
 and m \nolation of the laws of the State. " f » " ..uuwuigiy 
 
 Without inquiring into the effect of these charges, if they were substantiated by competent and 
 
 stn iTtrcrrtS.' " "^ ^-^^'^^ ^ ^^^ *'" *^^^ - "--^p-^^ ^^ ->- ^-^^-^ ind:^ 
 
 An^wfv T'^IhI^'^^"^" '^*' ^'^ ^"^ "^ ^"^^"""^ *°^ irregularities in the return, the votes of South 
 Amboy should be set aside, because one of the officers of election, duly chosen, was unlawfully prevented 
 foom acting, and another substituted in his place, who acted, and signed the list, etc. ; and because the 
 board thus unlawfully constituted, receivedalargenumberof alien votes, contrarytokw 
 
 In support of thc^e allegations numerous depositions have been produced, but without expressing 
 an opinion whether, if safsfactonly proved, they would constitute sufficient evidence of fn.ud to se t 
 aside the votes of this township, ,t is only necessary to state that the evidence was taken ex parte withou 
 See Dot E)'"' "^"'"^ '^ ''' '°°^'"''' " incompetent to be considered in ftis cte 
 
 «iH..'^Jl' ^* ^^^^''.''^'^^'^ tl?»t the poU held at Saddle River, in Bergen County, should be set 
 aside. B^use at least eight votes given for them were fraudulently abstracted from the baUot box and 
 ae many for their opponents fraudulently substituted; 
 
 Because, in making out the list of votes in said township, at lea^t eight votes less than were given for 
 
 Because the list of votes in said township bears upon its face evidence of mistake or fraud 
 
 In support of these charges the depositions of numerous voters have been submitted;' but being 
 
 T::zzr:s::i::^:::T'''' """''''' ^'^^ '^^'^ '^^° -^^'^"^ '^ '""^ ^°^*^^ - ^--^ 
 
 C.,J' ^^^^A^''^'f '^' '^'^ ^°^ ^"^^ ^' '^' '"^'^P« °^ ^''^°''' Hardenton, and Vernon, in Sussex 
 County, should be set aside, for r^ons that will more fully appear by reference to the document maXd 
 
 thte aU^tLT"" '^^'' '"* *'"^ ^ """ ^""P^^'^"* ^^'^"'^'^ ^^^°^^ ^•^^ — >«- - -PPort of 
 
 The majority of the committee then proceeded to ascertain the result on the 
 face of the polls, adding the votes of Millville and South Ambov to the returns on 
 which the governor's certificates had been issued, and found: 
 
 T^"^ it appears that, prima facie, upon the evidence in the possession of the committee Philemon 
 Dickei^on Peter D Vroom, Daniel B. Ryall, William R. Cooper, and Joseph Kille are the "five oHhe 
 ten individi^ls claiming seats from the State of New Jersey" [who] "received the greatest nLber of 
 on 3 tlfdTtli: " ""''' '" ^«P--^^*-- - *^« Congre. of the United Sta'^es, at the^ect on
 
 1030 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 795 
 
 The minority of the committee say: 
 
 The majority, without considering the proofs admitted to be competent, the tendency of which was 
 to show that unlawful votes had been polled for noncommissioned claimants, settled "forthwith" the 
 principles upon which the report should be made, and peremptorily instructed the chairman to add the 
 votes of Millville and South Amboy to those counted by the governor in privy council, thus resolving the 
 duties of the committee into the solution of an arithmetical problem of the most simple character. 
 
 But there is an additional and most imposing fact which we desire to present for the consideration of 
 the House before they decide this important question. 
 
 At the moment the committee had the report under consideration, and before any vote was 
 taken thereon, the chairman had in possession a sealed package of depositions, addressed to the Speaker 
 of the House, to the care of the chairman, and indorsed "depositions in the New Jersey case," forwarded 
 by the commissioned claimants, and which the majority of the committee refused to send to the Speaker, 
 to the end that the same might be opened and taken into consideration in the decision of the question 
 then pending in committee. On examination we find that the said depositions establish and prove illegal 
 votes cast for the noncommissioned claimants, which added to other unlawful votes already proven are 
 sufficient to give one of the commissioned claimants [Mr. Stratton] his seat, on the ground of receiving a 
 majority of lawful votes cast at the polls. 
 
 The following table will show how many illegal votes the commissioned Members must prove (if the 
 votes of Millville and South Amboy be added) to establish their right over their opponents to the vacant 
 seats, viz: 
 
 Mr. Stratton over Mr. Kille 31 
 
 Mr. Maxwell over Mr. Ryall 59 
 
 Mr. Halsted over Mr. Dickcrson 117 
 
 Mr. York over Mr. Cooper 135 
 
 Mr. Aycrigg over Mr. Vroom 199 
 
 The proofs laid in the first instance before the committee would have established both Messrs. 
 Stratton and Maxwell in their seats had the same been in all respects competent. 
 
 The injustice of refusing to examine the new depositions is the more apparent from the facts that 
 they were taken as substitutes for other depositions on the same subject, which had been rejected under 
 circumstances hereinbefore detailed. Their weight and effect are greatly enhanced by the fact that the 
 contesting party was present and cross-examined the witnesses. 
 
 Therefore the minority recommended that the report be recommitted. 
 
 On March 5 ' Mr. Campbell submitted the report of the committee.'' On March 
 10' the House, by a vote of yeas 111, nays 82, agreed to a resolution declaring that 
 the five claimants recommended by the majority of the Committee on Elections 
 
 are entitled to take their seats in the House of Representatives, as Members of the Twenty-sixth Con- 
 gress; and that the Speaker of the House, on their presenting themselves, qualify them as such: Pro- 
 vided, That nothing herein contained shall prevent the investigation into said election from being con- 
 tinued in the manner heretofore authorized by a majority of the Committee on Elections on the appli- 
 cation of the five claimants of said State. 
 
 At various times thereafter the gentlemen thus seated appeared and took their 
 seats. 
 
 795. The " Broad seal case," continued. 
 
 An early instance where partisan bias was charged against the Elec- 
 tions Committee. 
 
 Instance wherein, in the decision of an election case, each vote was 
 treated as a distinct controversy. 
 
 'House Journal, p. 520; Report, No. 506- Journal, p. 1284. 
 = Journal, pp. 569-578; Globe, p. 256. 
 ^ House Report No. 541, pp. 693, 733.
 
 § 795 GENEK.11, ELECTION CASES, 1840 TO 1850. 1031 
 
 In the " Broad seal case " the Elections Committee delegated the 
 arrangement of testimony to the parties. 
 
 Where poll lists were not preserved as a record parol proof was 
 resorted to for showing that the vote was actually cast. 
 
 Hearsay evidence rejected in an inquiry as to whether votes were 
 actually cast at the polls. 
 
 The Committee on Elections continued the investigation, and on July 16, 1840 ' 
 Mr. Campbell submitted the report of the majority of the committee on the question 
 of final right, and at the same time Mr. Smith presented the minority views, signed 
 by himself and Messrs. Fillmore, Botts, and Randall. The minority views espe- 
 cially show much partisan feeling, especially in the portion where it is declared that 
 "the conclusions and judgment of the majority of the conmiittee are wholly 
 unworthy of the sanction of this House, and of the confidence of the country. " = 
 The investigation of the committee related to nearly 600 distinct cases of votes 
 alleged either to have been cast imlawfully or to have been refused unlawfully. 
 The most minute and tedious course was adopted, the case of each individual vote 
 being treated as a distinct controversy, testimony being admitted and arguments 
 made as to it. The question was then put upon a formal resolution, devised with 
 reference to the prima facie legality of the proceeding at the polls and the burden 
 of proof. 
 
 The report says, as to the sifting of evidence : 
 
 In the hope that the grounds of the controversy might be more strictly defined and narrowed, and 
 that the testimony scattered through so many separate depositions, bearing on the same points, might 
 be so arranged and collected as to facilitate the labors of the committee, while it should insure the ends 
 of justice, the testimony in the possession of the committee was, on the 16th day of April, by the mutual 
 arrangement of the parties, delivered into their hands, and the committee continued the investigation 
 of other cases pending before them. 
 
 Although, from this arrangement, much greater delay ensued than the committee anticipated, the 
 subsequent investigation proved that, without the assistance of the parties, the difficulties of the inves- 
 tigation would have been almost insurmountable; testimony in relation to the same vote being often 
 found to have been taken not only from many different witnesses, but at various and distant times 
 and places, to which no clew would else have been iumished. 
 
 Nevertheless, impatient of delay, the committee passed resolutions calling on the parties on the 
 1.3th and 20th of May, and, finally, on the 2d of June. 
 
 The committee having previously, under the power granted by the House, ordered the papers to 
 be printed , the final investigation was commenced on the 3d of June, with a volume of evidence of nearly 
 700 printed pages. 
 
 The majority further say as to the rule adopted for arriving at a decision: 
 
 As applied to alleged unlawful votes, it presents two affirmative propositions: First, that the vote 
 in question was not a lawful vote; and, second, that it be deducted from the votes of one or the other 
 of the parties. The first proposition involved the inquiry whether the vote was actually cast at the 
 polls; and, for the ascertainment of this point, the committee necessarily resorted to parole proof, as the 
 best evidence which the nature of the case would admit of; the laws of New Jersey not requiring the 
 poll lists to be preserved as a record of the actual voters. Mere hearsay declarations of the alleged 
 voter, as to the fact of his having voted, have been uniformly rejected. 
 
 ' Mr. Campbell claimed the right to make this report as a matter of privilege. Mr. Speaker Hunter 
 ruled against this contention; but on appeal the House overruled the decision, yeas 124, nays 39. So 
 the report was made as a matter of privilege. (Journal, pp. 1281, 1284.) 
 
 ' See also Section 785 for a similar charge.
 
 1032 
 
 PKECEDENTS OF THE HOUSE OF REPRESENTATIVES. 
 
 §796 
 
 796. The " Broad seal case," continued. 
 
 An admitted ballot is prima facie good, and the burden of proof is on 
 the party objecting that the voter is an alien. 
 
 A vote being received as sound, the mere fact that the voter is alien 
 born does not compel the party claiming it to prove naturalization. 
 
 Distinction between a controversy at the polls as to a vote and a con- 
 troversy before the Elections Committee where the voter is not a party. 
 
 In a controversy as to votes objected to because the voter is an alien, 
 the party attacking the qualification may be required to prove a negative. 
 
 The inquiry naturally divided itself into several branches : 
 
 1. The lawfulness of the votes, with respect to the qualifications of the persons 
 casting them or claiming the right to cast them, involving inquiries as to — 
 (a) The nature of the proof as to aliens. 
 The majority say on this point: 
 
 A minority of the committee were of opinion that it was sufficient for the party objecting to the 
 vote to prove that the voter was alien bom; and that the burden of proof was thereby thrown upon the 
 party for whom the vote had been rendered at the poll, to prove that the voter had been naturalized. 
 And it was urged, with great earnestness, that, to adopt any other rule of evidence would be to depart 
 from the plainest principles of law and reason — to impose upon the party objecting to a vote the proof 
 of a negative; and a negative, too, which nothing short of searching of every court of record having 
 common-law jurisdiction, a clerk, and seal, in the Union, could possibly establish. 
 
 Without minutely criticising the argument, it is deemed proper to inquire to what practical conse- 
 quences the rule would lead, if it be fully admitted; for the proposition is to be taken, not as a mere 
 abstract annunciation of the order of proof, but as practically applicable to the decision of cases of 
 contested election in the House of Representatives. 
 
 The committee, as the organ of the House, have a positive affirmative proposition to adjudge 
 and declare, before a sitting Member can be displaced, or a single vote received for him at the polls can 
 be ejected from the ballot box. Before a Member is admitted to a seat in the House, something like the 
 judgment of a court of competent jurisdiction has been pronounced upon the right of each voter whose 
 vote has been received; and in order to overturn this judgment, it must be ascertained affirmatively 
 that the judgment was erroneous. Prima facie, it is to be taken that none but the votes of qualified 
 voters have been received by officers whose sworn duty it was to reject all others. Thi.s principle will 
 be found to have been solemnly and unanimously declared by the committee as a basis of future action, 
 soon after entering upon the investigation of this case. (See Report No. 506, p. 46.) 
 
 It is not sufficient that there should exist a doubt as to whether the vote is lawful or not; but con- 
 viction of its illegality should be reached, to the exclusion of all reasonable doubt, before the committee 
 are authorized to deduct it from the party for whom it was received at the polls. 
 
 Will the mere naked fact that a voter was alien bom, in the absence of all other proof, produce 
 8uch conviction on any candid mind? Is it not already answered, or, rather, is not even a presumption 
 from that fact alone precluded, by the judgment at the polls? All foreigners from birth are not disquali- 
 fied from voting, but only a certain class. Are we to presume that the voter, whose vote has been 
 received by the officers of the election, to be of the disqualified or the qualified class? The question is 
 answered by the unanimous resolution of the committee already r(>ferred to, as well as by the reason and 
 analogy of the case. 
 
 The committee can not believe that the House of Representatives would eject a Member from his 
 seat upon the mere proof that every man of his constituents was alien born. It is not apprehended that, 
 after an election has been regularly held, the House would even consider an investigation necessary 
 upon a petition whicli alleged no other fact. 
 
 The report continues : 
 
 But it may be a-sked. Does not the presumption originally arising from the fact of foreign birth 
 acquire additional strength, and may it not overturn the decision at the polls, when neither the voter
 
 § 796 
 
 GENEKAL ELECTION CASES, ISiO TO 1850. 1033 
 
 nor the party claiming the benefit of his vote before the committee adduces here any evidence of his 
 naturalization? If the voter refuses to testify to his own disqualification (as he legally may) how can 
 the party impeaching his vote proceed further in the proof of his allegation? Shall he be put to the 
 proof of a negative? Is not the voter a party to the proceeding, and is not his neglect to rebut the proof 
 of his birth by the evidence of his naturalization conclusive against him? 
 
 Undoubtedly if the voter be, to all intents and purposes, a party to this proceeding, claiming to 
 exercise a right here, such would be the conclusion; and, unless he should make out his right affirma- 
 tively, he must fail to establish it. So it was at the election; and so it would be here, if the committee 
 were holding a poU. But such is not the vocation of the committee or the House. If it were, the mere 
 reference of the petition, the mere creation of a controversy, wovdd annul all that has been done at the 
 election. Then, indeed, things would be taken up and treated de novo; voters who had once main- 
 tained their right and exercised it at the polls would be required to come forward and submit themselves 
 to another challenge, and a new affirmation of their franchise. 
 
 Again, if the voter is, to aU intents and purposes, a party to the proceeding before the House or 
 its committee, how is it that he is admitted to testify as a witness? Why are not all his declarations or 
 admissions, wheresoever and howsoever made, in relation to the subject-matter of the controversy, the 
 best evidence when proved by a competent witness? The distinction between the controversy at the 
 polls and that before the committee is manifest. At the polls the voter is a party. When the polls 
 are closed and an election is made the right of the party elected is complete. He is entitled to the 
 returns; and when he is admitted to his seat, there is no known principle by which he can be ejected, 
 except upon the affirmative proof of a defect in his title. Whoever seeks to oust him must accomplish 
 it by proving a case. The difficulties in his path can form no possible reason why the committee should 
 meet him haUway. The rule of reason requires that he should fully make out his case, even though it 
 involve the proof of a negative; and such is also the rule of Parliament in analogous cases. (See 3d 
 Douglas, 219.) 
 
 In Rogers's Law and Practice of Election Committees, page 116, it is said: " So in cases of petitions 
 against candidates on the ground of want of sufficient qualification — although a negative is to be proved, 
 it is the usage of Parliament that the party attacking the qualification is bound to disprove it." 
 
 It may be added that this rule has been applied bj' the committee, without controversy, to every 
 other species of alleged disqualification. In the cases of aliens alone was a different rule contended for. 
 Adhering to the rule, the committee have uniformly required something more than the mere affirmative 
 proof of foreign birth; the disqualification not being foreign birth, but the actual state of alienage at the 
 time of voting. 
 
 The great number of cases in which the disqualification has been fully made out, and the votes 
 deducted from the one party or the other, sufficiently answer the objection which has been supposed to 
 arise from the alleged impossibility of proving the negative. In none of these instances were the parties 
 put to the necessity of searching every "court of record having common-law jurisdiction, and a clerk, 
 and seal, in the Union." In some cases the voters themselves have declared, under oath, that they were 
 never naturalized; in others, while asserting their naturalization, they have stated circumstances incon- 
 sistent with it. In short, an infinite variety of circumstances, which will be found in the evidence, 
 joined with the fact of foreign birth, have completely proven the disqualification in a great number of 
 
 On the other hand, the hardship of requiring the sitting Member, upon the mere proof of foreign 
 birth, to produce before the committee evidence of the naturalization of hundreds or thousands of persons 
 over whom he has no control, and who, by withholding that proof, may vacate his election, must readily 
 be admitted. The proper season to demand such proof is at the polls. There the voter is the actor; he 
 comes forward claiming to exercise a right, and there he should prove his qualification. Where the case 
 assumes the form of a contested election between other parties, the disqualification must be made out 
 by the party seeking to overthrow the right of the sitting Member thus acquired at the polls. 
 
 The minority in their views discuss this question thus : 
 
 To enable the House to appreciate the action of the committee on the cases to which we are about 
 to refer, we would remark that it was conceded by all the Members that the reception of a vote by the 
 election officers raised a presumption in favor of the legality of such vote. Early in our deliberations 
 we adopted a resolution declaratory of this principle, the justice and propriety of which must be
 
 1034 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 796 
 
 apparent to all, but verj' soon after we commenced scrutinizing the votes we perceived that there was 
 a radical difference of opinion in the committee touching the use which should be made of this 
 
 presumption. 
 
 The undersigned are persuaded that the only effect which can be given to the reception of a vote 
 at the polls is to throw the burden of proof on the party objecting to its legality. But the majority 
 seemed disposed to carry the principle much further and to convert the presumption into a "swift 
 witness" in favor of the opposite party. If a credible witness was adduced, who proved the fact of 
 illegality by his positive oath, the majority would confront such witness with the presumption and 
 would give it all the efficacy appertaining to testimony under oath; and thus, balancing the oath of the 
 living witness against the presumption, they would come to the conclusion that nothing was proved. 
 Nay, more. The majority, strange as it may seem, held that the presumption was so strong that it 
 imposed on the party excepting to a vote the burden of proving a negative. When Messrs. Aycrigg 
 and others objected to a vote on the ground of alienage, they were required to prove, not merely that 
 the voter was an alien bom, but that he had not been naturalized— a task which, in many cases, is 
 wholly impracticable. 
 
 The undersigned can not omit noticing one curious circumstance, and that is, that this presumption 
 seldom visited the committee room except when one of these parties was endeavoring to establish the 
 illegality of votes. 
 
 If it appeared at all when the other party was making the same effort, the undersigned must say 
 they were scarcely conscious of its presence. 
 
 « 
 
 Any general rule, the effect of which, though administered with impartiality, should be to increase 
 the embarrassment would obviously operate in their favor; and we ask what rule could be better adapted 
 to the end suggested than that of giving an inordinate effect to the reception of a disputed vote at the 
 polls? This idea was a prolific source of difficulty to the committee, and, what is of more consequence, 
 of flagrant injustice to one of the parties. One of the many progeny of this suggestion was the legal 
 absurdity that the party objecting on the ground of alienage must, under all circumstances, prove not 
 only that the voter was an alien born, but, in addition, that he never had been naturalized. The com- 
 mittee knew at the outset that Messrs. Aycrigg and others expected to prove many alien votes to establish 
 their right to the seats. This was set forth fully in the exposition of facts which they submitted to the 
 committee at an early stage of the proceedings. The House can not fail to observe how admirably the 
 rule of negative proof is fitted to embarrass one side of this controversy and to fortify the position of the 
 other side, but, nevertheless, it is the duty of the party thus embarrassed to submit to the evil if the 
 rule itself be founded in law. But we insist that it is not so founded. No precedent can be found of 
 the application of such a rule to such a case. The party having the affirmative of the issue takes the 
 burden of proof. A foreigner comes to the polls and votes. You can prove that he is such, but how 
 can you prove that he has not been naturalized? Perhaps ho may be willing to testify, and then you 
 may prove the fact by his own oath. But suppose he is dead, or has removed away, or chooses to stand 
 mute. He can not be put to the question. He can not be compelled to criminate himself. The rule 
 imposes on the party objecting the necessity of searching all the records in the Union and of getting the 
 testimony of every record keeper to prove the fact. This is manifestly impossible. No man in his 
 senses can believe that any such rule exists. It is a principle of the law of evidence "that the affirmative 
 of the issue must be proved; and he who makes an assertion is the person who is expected to support it 
 before he calls on his opponent for an answer." And again: "The burden of proof lies on the person 
 who has to support his case by proving a fact of which he is believed to be cognizant." (Vide Rogers's 
 Law and Practice of Elections, p. 114-117.) 
 
 To suppose any member of the committee to be ignorant of a rule of law so old and universal and 
 founded in so much good sense would be to justify his integrity and maintain his impartiality at the 
 expense of his judgment and of every qualification required for the proper discharge of the duties of a 
 committee on elections. We disclaim all design of charging the course adopted by the majority to 
 corrupt intentions, but we are very reluctant to embrace the other branch of the alternative; and 
 conclude, therefore, that some strange prejudice must have taken possession of the mind and led the 
 judgment captive at will. 
 
 But not only did the committee adopt a very extraordinary rule, but they applied it to the caae 
 in a very extraordinary manner, and they essentially aggravated the evil which that rule was adapted
 
 § 797 GENERAL ELECTION CASES, 1840 TO 1850. 1035 
 
 to inflict, for they held votes to be lawful on account of the absence of .proof of nonnaturalization in 
 cases where — 
 
 (1) The election officers decided that aliens had a right to vote according to law and avowedly 
 admitted them to vote on that ground. 
 
 (2) Where aliens were summoned before the magistrates who took the evidence and where they 
 refused to attend, or, if they attended, stood mute as to their right. 
 
 (3) Where the two circumstances above indicated were combined, as they were in many of the 
 cases submitted to the committee. 
 
 (4) WTiere aliens produced at the polls, as evidence of naturalization, a declaration of an intent 
 to become naturalized at a future period, which we all know is a mere preliminary step to, but is not, 
 naturalization itself. 
 
 In many cases the committee held votes to bo lawful where all the above circumstances were 
 united against the voter. 
 
 797. The " Broad seal case," continued. 
 
 Although the State law did not disqualify a person non compos men- 
 tis as a voter, the Elections Committee examined. 
 
 (h) As to nonresidents. 
 
 The report cites the law of New Jersey and states that in setthng the various 
 questions they endeavored "to apply the well-settled principles of law." 
 
 (c) As to persons non compos mentis. 
 
 The report says: 
 
 Persons non compos mentis are not expressly disqualified by the terms of the law; but the com- 
 mittee entertained the allegation in a single instance from the general reason and nature of the case. 
 Questions of sanity, however, being of the most delicate and difficult which arise in the courts, the 
 committee could not consent to disqualify a voter on this ground except upon the most distinct and 
 indubitable proof, and none such being adduced, his vote was not disturbed. 
 
 798. The " Broad seal case," continued. 
 
 Where a State law made payment of tax evidence of property qualifi- 
 cations, the House did not count the ballot of a voter whose tax another 
 paid. 
 
 (.d) As to the qualifications of voters as taxpayers. 
 
 The fundamental law of New Jersey required the voter to be "worth £50 proc- 
 lamation money, clear estate, within the colony." And by statute it was further 
 provided that — 
 
 Sec. 5. Every person who shall, in other respects, be entitled to a vote, and who shall have paid a 
 tax for the use of the county or the State, and whose name shall be enrolled on any duplicate list of the 
 last State or county tax, shall be adjudged by the officers conducting the election to be worth £50, money 
 aforesaid, clear estate. 
 
 Sec. 6. That no person shall hereafter be deemed, by the officers conducting the election, to be a 
 qualified voter, who has not either paid a tax, or whose name is not enrolled on the duplicate, as aforesaid, 
 except in case of persons removing from one township, wherein they have paid a tax, to another township 
 in the same county, or of persons who have been inadvertently overlooked by the assessor; in either of 
 which cases, such persons claiming a vote, and being in other respects qualified, shall be admitted; and 
 in the case of persons who have been inadvertently overlooked by the assessor, as aioresaid, their names 
 shall be immediately entered on the tax list. 
 
 The report continues: 
 
 Without attempting, in this place, to criticise minutely the respective provisions of these laws, it 
 may be sufficient to state, that they seem at least to confine the right of suffrage, in all ca-ses, to bona fide 
 taxable citizens, in other respects duly qualified. When, therefore, it has appeared that previous to, 
 and at the time of voting, the voter has received support from the town as a pauper, and has not paid a
 
 1036 PRECEDENTS OF THE HOUSE OF EEPKESENTATIVES. § 799 
 
 tax the committee have not considered him a "qualified voter in respect of estate." So, also, where a 
 person of that class was brought to the polls, and a tax there paid for him by another, on condition that 
 he should vote a certain ticket, the committee did not consider the former a bona fide taxpayer, and 
 his vote was deducted. 
 
 The minority say: 
 
 The undersigned have felt much embarrassment in giving a construction to these sections, and they 
 can not but feel much surprised that the good people of New Jersey should have suffered the invaluable 
 right of suffrage to be involved in all the perplexity and doubt of absurd and contradictory phraseology; 
 but, on full consideration, they are disposed to give these sections a construction conforming to what they 
 understand to be the practice of the State; and to hold that, if a person has either paid a tax, or has 
 had his name enrolled on any duplicate list of the last State or county tax, he is entitled to the elective 
 franchise, as he is also in the excepted cases specified in the last section. 
 
 It is usual, in New Jersey, for a person whose name has not been enrolled, and who desires to exercise 
 the elective franchise, to appear at the polls and to demand the enrollment of his name; which is always 
 done, under the idea that it has been " inadvertently overlooked " by the assessor; and thus (by the 
 payment of a trifling tax) the elective franchise is put within the reach of every citizen of New Jersey. 
 But it would obviously be improper to enroll a pauper; it can not be supposed that the name of 
 such a person was " inadvertently overlooked," and it would be absurd to call on a man to pay taxes 
 who can not do so; and, if he could, to whom the money would be forthwith returned for his support. 
 Hence, we deem it settled that paupers can not vote in New Jersey. This brief exposition of the laws 
 of that State will enable us to contrast some of the cases under this head ; and the House can j udge whether 
 the committee were any more successful in administering "equal and exact justice" to the parties in 
 this than they were in the other branches of this inquiry. 
 
 799. The " Broad seal case," continued. 
 
 The voter not being compelled to testify for whom he voted, proof of 
 general reputation as to political character and party preferences was 
 accepted to determine the vote. 
 
 Votes improperly rejected were, in absence of direct testimony, 
 counted on proof of the general political action of the voter. 
 
 2. The deduction of unlawful votes from the poll, and the determination as to 
 votes improperly rejected. 
 
 The majority say: 
 
 It being satisfactorily ascertained that an unlawful vote was counted at that election, the next 
 inquiry which arose was as to the party for whom it was cast at the polls. 
 
 The elections in New Jersey are by ballot; and it will readily be perceived that this inquiry was 
 not without serious difficulties. 
 
 Although, in numerous instances, the voter, being examined as a witness, voluntarily disclosed the 
 character of his vote, yet, in many cases, he either did not appear, or, appearing, chose to avail himself 
 of his legal right to refuse an answer on that point. In such cases the proof of general reputation as to 
 the political character of the voter, and as to the party to which he belonged at the time of the election, 
 has been considered sufficiently demonstrative of the complexion of his vote. Where no such proof was 
 adduced on either side, proof of the declarations of the voter has been received; the date and all the cir- 
 cumstances of such declarations being considered as connecting themselves with the questions of credi- 
 bility and sufficiency. In every instance where the proof, under all the circumstances, was not sufficient 
 to produce conviction, the vote has been left unappropriated. 
 
 The same principles have governed the committee in regard to the votes decided to have been 
 improperly rejected at the polls. 
 
 The undersigned would observe, that, early in the investigation, a question arose as to the character 
 of the proof which should be received and deemed sufficient to enable them to appropriate such of the 
 votes as they might determine to have been unlawful. In New Jersey the vote by ballot obtains, as 
 in most of the States of the Union. If an unlawful vote be cast, how are we to ascertain who had the
 
 § 800 GENERAL ELECTION CASES, 1840 TO 1850. 1037 
 
 benefit of such vote? It is obvious that in many cases it will be impracticable to obtain positive proof. 
 In some cases, the voter may be willing to appear and disclose the fact under oath ; in other cases, it may be 
 in the power of the party to produce a witness who can swear to the character of the vote given; but in 
 many more, no evidence of that description can be obtained to ascertain the fact in controversy. It 
 seems to the undersigned to be indispensable to receive secondary evidence to this point, such as the 
 declaration of the voter, either at the election or soon after; and also proof of his political character, 
 •which, when well defined, will be a sufficient guide to the truth. But we ought to be very careful not 
 to receive and act upon evidence of an equivocal character, which may have been created or manufactured 
 for the occasions. In adopting these views, there was a good degree of unanimity in the conmiittee; but 
 the majority have been by no means consistent in carrj-ing them out. 
 
 800. The "Broad seal case," continued. 
 
 The charge that an election oflicer was not legally chosen not being 
 frzlly established, the committee declined to reject the poll. 
 
 Failure to transmit to a county clerk certificate of the choice of an 
 election officer is not a reason for rejecting the poll. 
 
 3. As to the conduct, qualifications, and competency of election ofiicers. 
 
 (a) The majority say: 
 
 It only remains to notice the objections made to the validity of the election at South Amboy, 
 and the allegation of fraudulent practices by the officers of the election at Saddle River. 
 
 The objections to the election in those two townships will be considered in the order in which they 
 are named. 
 
 For himself and associates, "Mr. Halated objects to the election held in the township of South 
 Amboy, in the county of Middlesex, because the said election was held by judges who were not chosen 
 according to law. 
 
 "And because John B. Appelget, who had been duly chosen inspector of said election, according 
 to law, to supply the place of Clarkson Brown, who was disqualified, was not permitted to act as inspector 
 at said election in said township. 
 
 "And because James M. Wame acted as inspector of said election in said township, without 
 having been duly elected inspector according to law. 
 
 "And because there was no certificate of the election of the said James M. Wame, inspector, 
 signed by three reputable freeholders, transmitted to the clerk of the common pleas of the county of 
 Middlesex within the time prescribed by law. 
 
 "And because the judge of the election in said township of South Amboy knowingly received 
 illegal votes. 
 
 "And because the said judges of said election did not conduct the said election in said township 
 according to law." 
 
 After having heard and considered the testimony in support of the above allegations, the com- 
 mittee unanimously resolved " that there did not appear any sufficient reason for setting aside the 
 election in South Amboy." 
 
 In New Jersey the election is conducted in each township by a judge, and the assessor and collector 
 of the township, who are ex officio inspectors of election; and the law prescribes that " if the judge, 
 assessor, and collector, or either of them, shall not be present at the time and place of holding the 
 election, or shall be di-squalified to hold the same, then, at the hour of 10 o'clock, the people present 
 entitled to vote shaU proceed to choose a person or persons to serve in the place of him or them so absent 
 or disqualified." 
 
 One inspector at South Amboy being disqualified, three persons were placed 
 in nomination for the vacancy. As to whether or not James M. Wame, one of 
 these, was elected substantially in conformity with law, there was a conflict of 
 testimony. After weighing the evidence the majority conclude that the contestants 
 failed to establish their allegations that the South Amboy election "was held by 
 officers not chosen according to law."
 
 1038 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 801 
 
 The minority say as to this point: 
 
 In the township of South Amboy, a whig inspector was duly elected by the majority of the people 
 present at the time prescribed by law, but was not permitted to act. The moderator of the town meeting, 
 after such choice, took it upon himself to proclaim a new election; and he kept the same open until a 
 sufficient number of his political friends were assembled to secure the election of the administration 
 candidate. This of itself would seem to us to be sufficient to render the election, so far as this township 
 is concerned, iiregular and void. 
 
 (b) The majority further say: 
 
 The third allegation, to wit: "That there was no certificate of the election of James M. Wame, 
 inspector, signed by three reputable freeholders, transmitted to the clerk of the common pleas of the 
 county of Middlesex within the time prescribed by law," although proved, is believed by the committee 
 to be entirely inadequate to affect the validity of an elecion legally held. Surely, it can not be that 
 one of the dearest rights of Jerseymen— a right which, more than any other, distinguishes the citizen 
 of a representative Government from the subject of a despot — is to be trampled in the dust, because, 
 forsooth, there was no certificate of the election of James M. Wame, inspector, signed by three reputable 
 freeholdsrs, transmitted to the clerk of common pleas of the county of Middlesex within three days 
 thereafter! Whatever pretext such an omission may have afforded to the clerk of the county of Middle- 
 sex for the perpetration of a daring outrage upon the rights of his fellow-citizens, in suppressing the 
 votes polled at South Amboy, in the return transmitted by him to the governor, it can not affect the 
 legality of the election. It was not necessary that a certificate of the election of the inspector should 
 have been transmitted to the clerk of common pleas, either before or during the election; and the 
 omission to do so afterwards, can not have a retrospective effect to defeat the will of the people, expressed 
 in conformity with law. The disqualification of an officer, to affect the legality of an election, must 
 evidently be coexistent with the election. 
 
 801. The " Broad seal case," continued. 
 
 An election being honestly conducted, the reception of illegal votes 
 does not vitiate the poll. 
 
 No fraud being shown, a poll is not rejected because the ballot box 
 does not contain as many votes as are proved by oath of voters. 
 
 ((■) The majority further say: 
 
 The fourth and fifth allegations are, in substance, that the judges of the election knowingly received 
 illegal votes, and did not conduct the election according t<i law. 
 
 Illegal votes were proved before the committee to have been received for both parties at South 
 Amboy, of which the poll has been purged by the committee; but, so far as intention was concerned, 
 it appears, by the evidence, that the election was fairly, honestly, and legally conducted; and the 
 proof is insufficient to establish the fact that a single illegal vote was knowingly received. 
 
 id) The majority further say: 
 
 Mr. Halsted and associates also claim to set aside the poll held at the township of Saddle Eiver, 
 in the county of Bergen, because eight votes, at least, given for them by persons legally entitled to vote, 
 were fraudulently abstracted from the ballot box, and at least as many for their opponents substituted 
 in their place; because, in making out the list of votes in said township, at least eight votes less than 
 were actually given for them were counted in their favor, and at least as many were counted for their 
 opponents more than they actually received ; and because the list of votes of said township shows upon 
 its face evidence of mistake or fraud. 
 
 In support of these allegations the depositions of 31 voters are produced, each one of whom swears 
 tliat he voted the WTiig ticket; and, by the deposition of the clerk of the election, it appears that one 
 other, who was not sworn in person, voted the same ticket — making, in all, 32 votes. (See testimony 
 accompanying this report, from page 424 to 446, inclusive.) 
 
 They also show that the officers of the election at Saddle River returned but 24 votes for them, 
 leaving 8 votes to be accounted for; and that 127 votes, in all, were returned, when it appears that there 
 should have been but 126.
 
 § 802 GENEEAL ELECTION CASES, 1840 TO 1850. 1039 
 
 On the part of Messrs. Vroom and his associates it was contended that the 
 election was fairly and legally conducted, and that the ballot box was so secured 
 that its violation was impossible. They also offered explanations to cover nearly 
 the whole discrepancy. The majority of the committee say that they — 
 
 are so well convinced, from the evidence, that the election was fairly and legally conducted, and that 
 no fraud was perpetrated on the ballot box, that they have determined to take the return of the officers 
 of election .ts the best evidence produced, and to sustain the legality of the Saddle River poll. 
 
 The minority say as to this poll : 
 
 It appears, from proof which we deem quite satisfactory, that .S2 votes were deposited in the ballot 
 box at Saddle River for the opposition candidates; the voters themselves swear to it in positive terms; 
 and yet, from some cause, when the votes came to be counted off, the number appeared to be only 24. 
 We do not intend to cast an imputation upon the inspectors of the election ; they are, doubtless, respect- 
 able men; but the House can hardly fail to be impressed with the fact, that evidence is adduced as to 
 the good character of the inspectors, but none at all as to that of the clerk ; and as he had charge of the 
 ballot box, he can, doubtless, explain the rule of reduction which seems to have operated so mysteriously 
 in Saddle River Township. 
 
 802. The " Broad seal case," continued. 
 
 Discussion as to duties of returning- officers with reference to tech- 
 nical requirements of law. 
 
 4. As to the conduct of certain returning officers. 
 The majority in their report say: 
 
 The committee do not think it necessary to comment upon the extraordinary transactions which 
 occurred in New Jersey shortly after the closing of the polls, and from which, it is believed, all the 
 difficulties of this case originated, further than to say that in suppressing the votes of Millville and 
 South Amboy, the clerks of Middlesex and Cumberland were guilty of a gross violation of the elective 
 franchise, calculated virtually to deprive the people of one of their dearest rights, and to keep from this 
 House a knowledge of those facts by which alone it can judge of the election of its Members. The duties 
 of those clerks, as returning officers, were strictly ministerial; and when, instead of making a faithful 
 record of the people's will, as expressed at the polls, and transmitting those records to the governor, or 
 person administering the laws of the State, they undertook to decide upon the legality of the polls, and 
 to act in accordance with those decisions, they exercised an unauthorized power, which, for more than 
 three months, silenced the voices of five out of the six Members to which New Jersey was entitled in the 
 House of Representatives; and for which their conduct, whether proceeding from ignorance or design, 
 must meet with the unqualified disapprobation of the honest and intelligent of every party. 
 
 The minority say : 
 
 Much censure has been cast upon the clerks of Cumberland and Middlesex, because the return of 
 votes from the townships of Millville and South Amboy were not included in their general lists forwarded 
 to the governor. With how little justice, the following facts will show. The Millville return was made 
 to the clerk on the 13th of October, "between the hours of 10 and 11 in the afternoon;" and as the law 
 of New Jersey is positive that the return shall be made to the clerk "before 5 o'clock of that day," and 
 he is then, at 5 o'clock, to make his "general list," to be transmitted to the governor, of course he could 
 include in that general list no returns except such as were received "before 5 o'clock." The clerk had 
 no discretion; he proceeded according to law, and is in no way censurable; the blame, if any, belongs to 
 the election officers. 
 
 The return from South Amboy was made by a judge and inspector, and by James M. Warn, repre- 
 senting himself as an inspector; his name, however, as such, does not appear in the list of town officers, 
 nor was there any certificate or other evidence of his election as inspector filed with the clerk, as the law 
 requires. If he had been duly elected to supply a vacancy (which we insist he was not), the law requires 
 the certificate of such election to be filed with the clerk within three days. None such was ever filed. 
 The certificate was presented to the clerk ten days after the election, and after the general list had been
 
 1040 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 803 
 
 made out and Bent to the governor. Of course, as the return was not made according to law, the clerk 
 could not receive it; especially in a case like South Amboy, where the election of this very inspector 
 was disputed as illegal and fraudulent, and where he and those who acted with him decided to receive 
 alien votes, and actually did receive a number of such. The evidence adduced to sustain the charge of 
 fraud against the clerk of Middlesex very clearly disproves the whole charge; and his conduct, like that 
 of the clerk of Cumberland, was strictly in accordance with the law, and in nowise censurable, unless 
 the refusal to violate the law, in order to receive an illegal return, including a number of alien and illegal 
 votes, be censurable. 
 
 The majority of the committee, as a result of their application of the enunciated 
 principles, recommended the following resolution : 
 
 Resolved, That Peter D. Vroom, Philemon Dickerson, William R. Cooper, Daniel B. Ryall, and 
 Joseph Kille are entitled to occupy, as Members of the House of Representatives, the five contested 
 seats from the State of New Jersey. 
 
 The minority admitted the election of Messrs. Vroom and Cooper, but contended 
 that the contestants were elected to the remaining three seats. 
 
 On July 16,' under the operation of the previous question, the resolution pro- 
 posed by the majority was agreed to, yeas 102, nays 22. Many members declined 
 to vote, apparently with the intention of breaking a quorum. 
 
 803. The Pennsylvania election case of IngersoU v. Naylor, in the 
 Twenty-sixth Congress. 
 
 Two claimants appearing with conflicting credentials at the time of 
 organization, the Members-elect examined and determined which should 
 vote. 
 
 Instance wherein citizens of a district, by memorial, participated in 
 an election contest. 
 
 Before the enactment of a law, the Elections Committee, having power 
 to compel testimony, delegated the duty of taking depositions. 
 
 Before the enactment of the law, the Elections Committee directed 
 testimony to be sealed and transmitted to its chairman. 
 
 When the House met for organization on December 2, 1839, and the clerk of 
 the last House began the call of the roll of Members-elect, which at that time was 
 made up in pursuance of usage and not in accordance with law, a question arose 
 when the State of New Jersey was reached. This question caused a prolonged 
 controversy, during which the assembled Members-elect chose Mr. John Quincy 
 Adams, a Member-elect from Massachusetts, chairman. As the proceedings went 
 on it appeared that there were participating in the proceedings Messrs. Charles 
 Naylor and Charles J. IngersoU, claimants from the same district in Pennsylvania. 
 Each had what purported to be credentials, and on December 10 and IV, a question 
 came as to which of the two should be allowed to participate. After examination 
 of the credentials and law of Pennsjdvania the assemblage decided that Mr. Naylor 
 should be permitted to vote and that Mr. IngersoU should not vote. 
 
 On December 17', when the House had finally elected a Speaker, the oath was 
 administered to Mr. Naylor with the other Pennsylvania Members. 
 
 ' Journal, p. 1297. 
 
 ^ First session Twenty-sixth Congress, Journal, pp. 11-14, 20; Globe, pp. 38-40. 
 
 ^ Journal, p. 84.
 
 § 8U4 GENER.U. ELECTION CASES, 1840 TO 18.50. 1041 
 
 On January 24, 1840,' Mr. George M. Keim, of Pennsylvania, presented the 
 petition of Mr. Ingersoll setting forth that he was elected to Congress from the 
 Third district of Pennsylvania; that Mr. Xaylor was not elected, and praying an 
 investigation. Mr. William S. Ramsay, of Pennsylvania, also presented a petition 
 of citizens and electors of the said district complaining of fraud and illegahty in the 
 election of Charles Naylor, and praying for an investigation. 
 
 These petitions were referred to the Committee on Elections. 
 
 On February 24- the House, by resolution, authorized the Committee on 
 Elections in this case "to send for persons and papers." 
 
 On February 26^ the Elections Committee, in accordance with the usage at 
 that time, and in the absence of any law prescribing the manner of conducting 
 election contests, adopted a resolution authorizing the parties to take testimony 
 "before Boys Xewcomb and William Grennell, esqs., commissioners," or such 
 persons as they might appoint, providing for notice between the parties, etc., and 
 also containing the following further provisions : 
 
 And that, if any witness or witnesses shall refuse to attend, upon a subpoena for that purpose being 
 eerved upon him or them, by order of the commissioners or commissioner, or, attending, shall refuse to 
 testify, the name or names of such witness or witnesses shall be reported forthwith to this committee, by 
 the comLmissioners or commissioner, for such further proceeding as this committee shall direct. 
 
 And that all testimony taken by virtue of this resolution shall be certified, sealed up, and trans- 
 mitted by the commissioners or commissioner to the chairman of this committee on or before the 3d 
 day of April next. 
 
 804. The case of Ingersoll v. Naylor, continued. 
 
 Hearsay evidence is rejected in considering an election contest. 
 
 No illegal vote being shown, the poll was not rejected because of pre- 
 sumptions created by a census and arithmetical calculations. 
 
 An election may not be impeached by comparison with the result at 
 another election in the same constituency. 
 
 In the absence of fraud or injustice irregular action by election offi- 
 cers does not vitiate the poll. 
 
 On July 17* Mr. Millard Fillmore, of New York, submitted the report of a 
 majority of the committee, five of the nine Members concurring in it. Three mem- 
 bers of the committee signed minority views, and one member of the committee did 
 not act in the case and concurred neither in the report nor the views. 
 
 The majority reported a resolution confirming the title of Mr. Naylor to the 
 seat, while the minority proposed that the seat be declared vacant. 
 
 Two questions were involved in the case. 
 
 1. Mr. Ingersoll alleged that in Spring Garden and in five wards of an incor- 
 porated district called the Northern Liberties there were frauds and irregularities, 
 and that — 
 
 by a conspiracy among the election officers to carry the election by fraud many hundred names were 
 illegally and fraudulently added to the registries of voters, being the names of persons having either no 
 existence or no right to vote, whose votes or pretended votes were nevertheless counted and allowed to 
 Mr. Naylor. 
 
 ' Journal, p. 228. = Report No. 588, p. 1. 
 
 2 Journal, p. 429. ' Journal, p. 1300; Globe, p. 537; Report No. 588, pp. 545, 551. 
 
 59&4 — VOL 1—07 CO
 
 1042 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 804 
 
 The majority say that a large amount of hearsay evidence was brought in to 
 sustain this allegation, but the committee rejected it, saying that — 
 
 The nile upon which the committee reject all this hearsay evidence they conceive too well 
 settled and too clear and just to require any argument. 
 
 Mr. Naylor's majority was 775. The majority say: 
 
 No attempt was made by direct evidence to purge the polls; nor has the petitioner shown, or 
 attempted to show, that a single illegal vote was received by the officers of election, or a single 
 fictitious one allowed to the sitting Member. Though the addition of a large number of names to the 
 register in one of the wards in Spring Garden, by the officers whose duty it was to prepare it, was a 
 suspicous circumstance, requiring careful scrutiny, yet, as the error, if any, was corrected before the 
 election commenced, and as there is no proof of any illegal vote having been given in that ward at 
 that election, the committee do not see how this fact can possibly be invoked to affect the result. 
 
 The attempted political census, had it been otherwise competent, was clearly too vague and uncer- 
 tain to lay the foundation for any judicial decision; all the material facts in it came under the general 
 denomination of heresay evidence, of the most loose and unsatisfactory kind; and besides when 
 contrasted with the other authentic evidence it becomes utterly worthless. 
 
 The report also condenms " aritlmietical calculations" founded on "uncertain 
 and unsatisfactory bases" as unworthy of credit. 
 The report continues : 
 
 The petitioner also charges a number of small irregularities in conducting the election and count- 
 ing the votes, consisting mainly in slight deviations from the strict requirements of the law. There is 
 no proof that any injustice was done or fraud intended; and as there was manifestly a substantial com- 
 pliance with the law the committee do not conceive that it could be for the advancement of substan- 
 tial justice to entertain objections of this kind. Our election laws must necessarily be administered 
 by men who are not familiar with the construction of statutes, and all that we have a right to expect 
 are good faith in their acts and a substantial compliance with the requirements of the law. 
 
 The minority, taking the ground that the seat should be declared vacant 
 because of the "imputed frauds and irregularities of the election of 1838," which 
 had caused much excitement in the State of Pennsylvania, say: 
 
 At that election the majority returned for Mr. Naylor was 775 votes; yet at the succeeding elec- 
 tion of 1839 the majority against his party in the same district was about three times that number of 
 votes, which extraordinary change is believed by the undersigned to be ascribable solely to an altera- 
 tion of the law so as to prevent, in 1839, the frauds and irregularities which are supposed to have taken 
 place in 1838. 
 
 The minority further contend that the irregularities on the part of the election 
 officers were very great ; that they permitted the count to be made and the returns 
 to be drawn up by unauthorized persons, and that these irregularities were in 
 pursuance of a conspiracy. 
 
 2. It was alleged that at Spring Garden the election officers were not sworn 
 in order that they might carry the election of Mr. Naylor. It was alleged that a 
 mock oath was taken, "either on a Philadelphia directory or "The Narrative 
 of the Sufferings of Some Shipwrecked Marines," to "do justice to their party this 
 day." The majority of the committee, after an examination of the testimony, 
 decided to give no credit to the charge. 
 
 The report was, when presented to the House, laid on the table.* 
 
 ' Journal p. 1300.
 
 § 805 GENEBAL ELECTIO>' CASES, 1840 TO 1850. 1043 
 
 On January 15, 1841,' after arguments by the contestant and sitting Mem- 
 ber, the report of the majority of the committee was agreed to by the House, yeas 
 117, nays 85. 
 
 A proposition to secure cert am evidence was proposed, but not admitted. 
 
 805. The Virginia election case of Smith v. Banks, in the Twenty- 
 seventh Congress. 
 
 Instance wherein, pending decision on an election case, the sitting 
 Member resigned for a new appeal to the people. 
 
 Instance wherein an election contest abated by resignation of sitting 
 Member for a new appeal to the people. 
 
 Early instance wherein compensation was voted to a contestant. 
 
 On June 8, 1841,' Mr. Thomas W. Gilmer, of Virginia, presented the memorial 
 of William Smith, claiming to be duly elected a Member of the House from the 
 Thirteenth district of Virginia, instead of Linn Banks, who had been returned 
 and was the sitting Member. This memorial was referred to the Committee on 
 Elections. Thereafter at various times' during the session testimony relating to 
 this contest was presented and referred to the committee. 
 
 It appears indirectly from the Journal that about Septemoer 4* at the instance 
 of the sitting Member, the decision of this case was postponed until the next session 
 of Congress. 
 
 On December 8, 1841,^ at the next session, Mr. Smith appeared with credentials 
 showing that he had been "elected to supply the vacancy occasioned by the resig- 
 nation of Linn Banks.'" Mr. Smith was seated without objection. 
 
 On August 31 ' Mr. Smith, in explaining a resolution to give to himself pay for 
 the time he was a contestant, made a statement of the case, which was corroborated 
 on the floor by the chairman of the Committee on Elections. Mr. Smith stated that 
 at the first session he conducted his case before the Elections Committee imtil he 
 overcame the sitting Member's majority. It was then, he said, upon the application 
 of his competitor, and against his own earnest remonstrance, that the case was post- 
 poned. Then he and ^Ir. Banks agreed to refer the matter to the people. The 
 people decided the case in Mr. Smith's favor. He believed that in the first instance 
 he had been fairly elected, and therefore considered himself entitled to the compen- 
 sation. The House voted the compensation. 
 
 806. The Maine election case of Joshua A. Lowell, in the Twenty- 
 seventh Congress. 
 
 Instance of an election contest instituted by the remonstrance of citi- 
 zens and electors of the district. 
 
 The House did not make critical examination in an election case 
 wherein the petitioners were indifferent. 
 
 'Second session Twenty-sixth Congress, Journal, pp. 17.3, 189; Globe, pp. 98, 104. 
 = First session Twenty-seventh Congress, Journal, p. 52. 
 'Journal, pp. 76. 282, 33.5, 350. 
 
 * Journal, p. 465. 
 
 * Second session Twenty-seventh Congress, Journal, p. 27. 
 "Globe, p. 979.
 
 1044 PEECEDEXTS OF THE HOUSE OF REPEESENTATIVES. § 807 
 
 On January 13, 1842,' the Speaker laid before the House testimony in the election 
 case relating to the seat occupied by Mr. Joshua A. Lowell, of Maine. It does not 
 appear that any other papers were presented to the House or referred in this case, 
 except a protest presented to the House on June 11, 1841.^ The sitting Member, in 
 his statement to the Committee on Elections, states that as to this protest or remon- 
 strance, which was signed by George Hobbs and 17 other citizens and legal voters of 
 the district, that it was not "addressed to the House," was not "presented by the 
 Speaker or by a Member in his place," and "a brief statement of the contents 
 thereof" was not made verbally by the introducer, and therefore should not have 
 been received. It appears, however, that the Speaker did present it on June 11. 
 
 The committee considered the case, and on March 9^ reported on the "remon- 
 strance and evidence," but gave no discussion of the case, presenting simply a reso- 
 lution confirming the title of Mr. Lowell to the seat. 
 
 On March 16,^ after a brief debate, the resolution was agreed to. From this 
 debate, taken in connection with the remonstrance and sitting Member's answer, it 
 is possible to arrive at an understanding of the leading issues of the case. 
 
 The remonstrants had specified three objections which, if sustained, would have 
 shown that Mr. Lowell was not elected. A majority of the votes was required at 
 this time for an election of Representative to Congress from Maine, and the remon- 
 strants merely asked that the seat be declared vacant, it not being claimed that any 
 other candidate was elected. 
 
 Mr. Lowell in his statement to the committee answered the objections made, 
 and adduced charges as to other irregularities, which, if investigated, would lead to 
 corrections which would increase his majority. 
 
 The committee do not state the grounds of their decision. 
 
 It is worth noticing, however, that the sitting Member made this point: 
 
 The laws of the United States do not provide for taking testimony to be used in cases of contested 
 Congressional elections; and tlie laws of Maine, while they provide for taking testimony to be used in 
 cases of contested elections in the State legislature, are silent on the subject of contested elections in 
 Congress. Testimony to be used in contested elections to Congress can therefore be taken in Maine 
 only by the consent of parties, or by virtue of some power to be given to commissioners by the House 
 itself. And I here repeat the notice which I gave to the committee, at their session on the first instant, 
 that I shall object to all evidence heretofore taken which has been or may be offered against my right 
 to a seat in the House, as taken ex parte, witliout law and against law. 
 
 The committee, however, appear to have examined the evidence and also to 
 have examined evidence on the other side. It was stated that the remonstrants 
 did not take great interest in the case, since the unseating of Mr. Lowell would 
 require a new election, and the people of the district were content to have Mr. 
 Lowell represent them for the remainder of the term. 
 
 807. The Virginia election case of Goggin v. Gilmer, in the Twenty- 
 eighth Congress. 
 
 The acts of proper officers, acting within the sphere of their duties, 
 are presumed correct unless shown to be otherwise. 
 
 ' Second session Twenty-seventh Congress, Journal, p. 173; Globe, p. 130. 
 
 ■ First session Twenty-seventh Congress, Journal, p. 83. 
 
 ^Journal, p. .514; Globe, p. 301. 
 
 * Journal, pp. 545, 546; Globe, p. 323; 1 Bartlett, p. 37.
 
 § 807 GENERAL ELECTION CASES, 1S40 TO 1850. 1045 
 
 In the absence of fraud the failure of election officers to be sworn 
 shoiild not vitiate a poll. 
 
 Discussion of directory and mandatory laws as related to irregulari- 
 ties in conduct of elections. 
 
 A minority argument that a poll shoiild be rejected for failure of an 
 election officer to be sworn. 
 
 The House did not indorse a proposition to declare a seat vacant 
 because of irregularities on the part of election officers not show^n to be 
 corrupt. 
 
 A Member being appointed to an incompatible office, a contestant not 
 found to be elected was not admitted to fill the vacancy. 
 
 On December 7, 1843,' Mr. WilloughVjy Xewton, of Virginia, presented a 
 memorial of William L. Goggin, contesting the seat of Thomas W. Gihner, of Vir- 
 ginia. This memorial was referred to the Committee on Elections. 
 
 On Januan,' 2.5, 1844,^ Mr. Lucius Q. C. Elmer, of New Jersey, presented the 
 report of the committee. At a later time Mr. Robert 0. Schenck, of Ohio, on the 
 part of himself, and Messrs. Garrett Davis, of Kentucky', and Willoughby Newton, 
 of Virginia, filed minority views. 
 
 Mr. Gilmer was returned by a majority of 20 votes over Mr. Goggin. The 
 validity of this majority was attacked on several grounds, which are discussed 
 as follows: 
 
 1. The law of Virginia had at that time the following provision: 
 
 If the electors, who appear to be so numerous that they can not all be polled before sun setting, 
 or if by rain or rise of water courses many of the electors may have been hindered from attending, 
 the sheriff, under sheriff, or other officer conducting the election at the court-house, and the superin- 
 tendents of any separate poll, if such cause shall exist at any separate poll for the adjournment 
 thereof, may, and shall, by the request of any one or more of the candidates, or their agents, adjourn 
 the proceedings on the poll until the next day, and from day to day for three days (Stindays 
 excluded), giving notice thereof at the door of the court-house. 
 
 In two counties polls were continued by reason of rains, and it was from the 
 votes cast at these postponed elections that all of the sitting ilember's majority 
 was obtained. On the poll of the regular first day Mr. Goggin had a majority of 
 74 votes. 
 
 The majority and minority differed in their interpretation of this law and as 
 to whether or not the acts of the elections officers were in accordance with its pro- 
 visions. The majority saj^: 
 
 It being a clear principle that the acts of the proper officers, acting within the sphere of their 
 duties, must be presumed to be correct unless shown to be otherwise, it is incumbent on Mr. Goggin 
 to prove, by competent evidence, that the adjotuTiments were, in point of fact, made without the 
 request of any candidate or his agent. This he has failed to do. 
 
 The minority say: 
 
 While the undersigned believe, therefore, and admit that much should be allowed to the discre- 
 tion of the officers, and that the first presumption should always be in favor of a sound and rightful 
 exercise of that discretion, yet there is no reason why, in a proper case, there should not be an inquiry 
 
 ' First session Twenty-eighth Congress, Journal, p. 30. 
 
 ' Journal, pp. 291, 312; Globe, pp. 192, 193. 20.5; House Report No. 76, pp. 1 and 129.
 
 1046 PKECEDENTS OF THE HOUSE OF KEPEESENTATIVES. § 807 
 
 into the sufficiency of the cause assumed by them for their action. The undersigned are of opinion, 
 also that such judgment of the officers conducting the election, so far as they may have acted in 
 reference to that which the law in any way leaves to their discretion, ought not to be disturbed or set 
 aside, except in a case of clear and flagrant error or wrong. 
 
 2. The petitioner alleged that certain election officers were not swom. 
 
 The majority report says: 
 
 Without stopping to inquire whether the votes taken in a county or district ought to be rejectetl, 
 and the voters be thus disfranchised, or the people put to the expense and trouble of a new election, 
 on account of the officers neglecting a part of their duty, even so important a matter as that of being 
 sworn, in a case where there is no allegation that the omission produced any practical evil, the com- 
 mittee are of opinion that the evidence produced does not amount to even prima facie proof that the 
 superintendents conducting the elections * * * were not swom. 
 
 The majority examine this evidence. The minority, while not agreeing entirely, 
 
 say: 
 
 Great looseness and negligence appear to have prevailed at almost every precinct in the dis- 
 trict. * * * The undersigned, however, have been always satisfied with anything approaching tea 
 substantial compliance with what the law prescribes. They believe that whenever a failure of obe- 
 dience to these directory provisions does not necessarily involve the probability of a wrong or tend to 
 make a dangerous precedent by taking away some of the substantial safeguards which are to secure the 
 purity of elections, such failure ought not to be treated as sufficient to make void the apparent returns. 
 Every regulation in relation to elections — of time, place, manner, form of vote, ofiicers who are to conduct 
 them, poll books, returns, and whatever else pertains to the exercise of that invaluable franchise of the 
 citizen — is, in fact, directory; but there are some of these regulations more substantive and important 
 in their use and character than others; and somewhere it is necessary to draw the line, distinguishing 
 between that which is proper, but not essential, and that which so enters into the essential character of 
 a good election that a failure in it sliould be held a fatal defect. Of this latter class the undersigned 
 believe to be the requirement of an oath from the election officers. 
 
 The minority refer to the cases of McFarland v. Purviance, McFarland v. Cul- 
 pepper, Porterfield v. McCoy, Easton v. Scott, and Draper t'. Johnston. 
 
 As a result of their examination the majority of the committee found the sit- 
 ting Member elected by at least a majoritj* of 4 votes, even allowing contentions 
 which they did not admit. Therefore thej' reported a resolution confirming the 
 title of Mr. Gilmer to the seat. 
 
 The minority found as the result of their examination that Mr. Goggin had a 
 majority of 30 votes. They say: 
 
 They arc clearly satisfied that Mr. Gilmer, the sitting Member, has not obtained a majority of the 
 votes legally taken in the district entitling him to retain his place as a Representative in this body. 
 But such result being produced (in part at least) by the failure or duty or misconduct of officers, whose 
 action should not be permitted to interfere with an opportunity afforded to the electors of the district 
 to express clearly and with certainty their will, by a properly ascertained majority, the undersigned 
 do not agree that the seat, if thus vacated, ought to be given to Mr. Goggin. They recommend, there- 
 fore, the passage of the following resolution: 
 
 Resolved, That the seat now held by Thomas W. Gilmer, as Representative from the Fifth district 
 of Virginia in this House, is hereby declared vacant, and that a communication be sent to the gov- 
 ernor of that State to inform him of that fact that an election may be made by the people of that district 
 to fill the vacancy. 
 
 On February 15,' before the report was acted on, a message of President Tyler 
 
 ' Senate Executive Journal, 1841-1845, pp. 235, 236. 
 
 I
 
 § 808 GENERAL ELECTION CASES, 1840 TO 1850. 1047 
 
 was received in the Senate, nominating Mr. Gilmer as Secretarj- of the Na-sry-, and 
 on the same day the nomination was confirmed. 
 
 On February 16' Mr. Willoughby Newton, of Virginia, proposed the following: 
 
 Ordered Th^t William L. Goggin have leave to withdraw his memorial contesting the right of 
 Ihomas W . Gilmer to a seat as a Member of the House of Representatives. 
 
 Ml. Newton stated that Mr. Goggin did not concede that Mr. Gilmer had been 
 elected, but as the latter had sent his resignation to the governor of Virginia the 
 object of the contestant, which was to procure another trial before the people had 
 been attained. ' 
 
 The House agreed to the order without division. 
 
 On February 17' :Mr. Gilmer's resignation was announced in the House 
 
 On May 10 ' Mr. Goggin, with credentials showing his election to fill the vacancy 
 caused by Mr. GUmer's resignation, appeared and took his seat. 
 
 808. The Massachusetts election case of Osmyn Baker, in the Twenty- 
 eighth Congress. 
 
 Instance of an election contest instituted by a memorial from citi- 
 zens of the district. 
 
 The parties complaining of an undue election faUing to present evi- 
 dence, the House did not pursue the inqmry. 
 
 On February 5, 1840,' Mr. William Parmenter, of Massachusetts, presented a 
 memonal of citizens and leg^l voters of the SLxth Congressional district of Massa- 
 chusetts, remonstratmg against the return of Osmyn Baker, by the governor and 
 council of that State as a Member of the House, and praying that his seat may be 
 vacated for the reason that he did not receive a majority of the votes given bv the 
 legal voters. -^ 
 
 This memorial was referred to the Committee on Elections. 
 On March 19 = a further representation and memorial in this case was presented 
 and referred. 
 
 On February 24 » the Committee on Elections was authorized to send for persons 
 and papers in reference to this case. 
 
 On July 17' Mr. John Campbell, of South Carolina, from the Committee on 
 i!>lections, reported this resolution, which was agreed to: 
 
 Resolved, Th^t the Committee on Elections be discharged from the further consideration of the 
 petitions of ceruin electors o. the Sixth Congressional district of the State of Ma^chusetts, alleging 
 that Osmyn Baker, the e.tt.ng Member from that district, wa^ not duly elected a Member of the nfuse 
 of Repr^entatives, there being no e^ddence produced to the committee in support of the allegations 
 of the petitioners, and the time limited by agreement of parties and the authority of the comm^ee f" 
 completing the taking of the same having expire d on the fourth Monday of May last. 
 
 ' House Journal, p. 414; Globe, p. 289. 
 
 ' Journal, p. 416; Globe, p. 291. 
 
 ' Journal, p. 890. 
 
 * First session Twenty-sixth Congress. Journal, p. 278; Globe p 164 
 
 'Journal, p. 638; Globe, pp. 278, 279. 
 
 "Journal, pp. 429-433. 
 
 'Journal, p. 1300.
 
 1048 PKECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 809 
 
 809. The Virginia election case of Botts v. Jones, the Speaker, in the 
 Twenty-eighth Congress. 
 
 The seat of the Speaker being contested, he vacated the chair on every 
 question relating to the contest. 
 
 The Speaker's seat being contested, the House directed that the Elec- 
 tions Committee be appointed by the Speaker pro tempore. 
 
 On December 4, 1843/ the House elected John W. Jones, of Virginia, Speaker 
 On December 7,' Mr. John Quincy Adams, of Massachusetts, indicated his purpose 
 to present the memorial of John M. Botts contesting the seat of John W. Jones, of 
 Virginia. The Speaker thereupon called Mr. Samuel Beardsley,^ of New York, to 
 the chair. Then Mr. Adams presented the memorial, which was ordered to be 
 referred to the Committee on Elections when appointed. Later in the same day * 
 the Speaker, by general consent, stated that it seemed proper for him to ask the 
 House that he be relieved of the appointment of the standing Committee on Elections 
 in view of the fact that his own seat was contested. The Speaker again called Mr 
 Beardsley to the chair, and after debate, by a vote of 98 to 48, the House decided 
 that Mr. Beardsley should appoint the committee. 
 
 Mr. Beardsley thereupon appointed the committee, Mr. William W. Payne, of 
 Alabama, being chairman. 
 
 On December 13^ the Speaker again left the chair, calling Mr. Linn Boyd, of 
 Kentucky, as Speaker pro tempore. 
 
 Then it was ordered, on motion of Mr. L. Q. C. Elmer, of New Jersey, a member 
 of the Committee on Elections, that all documents in possession of the clerk in the 
 case of Botts v. Jones be referred to the Committee on Elections. 
 
 On May 21, 1844," the Speaker called Mr. John B. Weller, of Ohio, to the chair, 
 and thereupon Mr. Elmer submitted the report of the majority of the Conunittee on 
 Elections. Again, on May 31,' the Speaker called Mr. Weller to the chair, and Mr. 
 Willoughby Newton, of Virginia, submitted the views of the minority. 
 
 810. The case of Botts v. Jones, continued. 
 
 A person whose vote has been received by the officers of election is 
 presumed to be qualified. 
 
 Instance wherein by agreement of parties evidence in an election case 
 was taken under a State law. 
 
 A poll fairly conducted should not be set aside because an election 
 officer had not been sworn. 
 
 The issues in the case were as follows : 
 
 The testimony in the contest had been taken by agreement of the parties 
 according to the Virginia law regulating contests before the State legislature, and 
 acting in accordance with that practice each party considered himself bound to 
 establish the right of the voter challenged by the other party. The committee 
 
 ' First session Twenty-eighth Congress, Journal, p. 8. 
 
 = Journal, p. 30; Globe, p. 18. 
 
 ^ Mr. Beardsley belonged to the majority party in the House. 
 
 * Journal, p. 40; Globe, p. 21. 
 
 * Journal, p. 50. 
 
 'Journal, p. 948; Report H. of R., No. 492. 
 'Journal, p. 989; Report H. of R., No. 520.
 
 § 811 GENERAL ELECTION CASES, 1840 TO 1850. 1049 
 
 expressed the opinion that every voter admitted by the regular officers authorized 
 to decide the question at the polls ought to be considered legally qualified, unless 
 the contrary be shown. But as the parties had proceeded on the contrai^ prin- 
 ciple, the committee conformed its examination to the Virginia practice. 
 
 At one precinct there was evidence showing that the sheriff and one of the 
 superintendents were not sworn, as required by law. The majority of the com- 
 mittee considered this evidence taken ^\•ithout the notice required by the Virginia 
 law, and were therefore not disposed to give it full effect. The minority held that, 
 there being no law of any kind expressly governing the taking of testimony, the 
 rules of convenience and propriety prescribed by the courts should hold, and that 
 the evidence had been property taken. The majority considered that at this time 
 the functions formerly exercised by a sheriff at Virginia elections had so far ceased 
 as to render the objection as to the oath immaterial. The minority, while conced- 
 ing that he could no longer admit or reject a vote, found that he was still custodian 
 of the polls and had important duties to perform. Also one of the two superin- 
 tendents was not sworn, and the majority admit that this was "irregular and 
 illegal," but do not think the poll should be set aside as wholly null and void where 
 it appears to have been fairly conducted. The minority insisted that the votes of 
 this precinct should be thrown out, "not being disposed to regard these oaths, 
 solemnly prescribed by the wisdom of the law-making power, as mere idle forms."' 
 Had these votes been thrown out it would have made no difference in the result. 
 
 811. The case of Botts v. Jones, continued. 
 
 The House rejected votes cast by persons not naturalized citizens of 
 the TJnited States, although entitled to vote under the statutes of a State. 
 
 No fraud or injury being shown, the proper acts of an unqualified or 
 unauthorized election officer do not vitiate the poll. 
 
 A contestant admitted to be heard in an election case is governed by 
 the hour rule of debate. 
 
 The minority, in their views, also state the folloAving: 
 
 A number of votes were stricken from the poll of Mr. Botts upon the ground that, although the 
 voters, who were by birth foreigners, had taken the oath of fidelity to the Commonwealth under the 
 statutes of Virginia they were not strictly citizens of the United States. A large majority of the com- 
 mittee being of opinion that, as the power of the Federal Government "to enact uniform laws upon 
 the subject of naturalization " is. when exercised, exclusive, the statutes of Virginia prescribing an 
 oath of fidelity to the Commonwealth and declaring the mode in which persons shall become citizens 
 of Vu-ginia, are merely void; and that such persons, although treated by the laws of Virginia as citi- 
 zens, can not exercise the right of suffrage for Members of the House of Representatives, which right 
 IS guaranteed by the Constitution to all "free white male citizens of the Commonwealth" possessing 
 other prescribed qualifications. From this opinion one of the undersigned dissents; and, whether such 
 persons are technically citizens or not, thinks they ought to come within the description of persons 
 upon whom the right of suffrage is conferred by the constitution of the State; and being permitted 
 undents provisions, " to vote for members of the most numerous branch of the State legislature " 
 ought not to be denied the privilege of voting for Members of the House of Representatives.' 
 
 In the House Mr. Robert C. Schenck, of Ohio, called attention to the impor- 
 tance of this question.^ 
 
 ' This minority report is signed by Messrs. WiUoughby Newton, of Virginia, Robert C. Schenck, of 
 Ohio, and Garrett Davis, of Kentucky. 
 ^ See discussion below.
 
 1^050 PKECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 811 
 
 A question as to the appointment of writers at the polls involved a construc- 
 tion of the Virginia laws as to the number of these officials required. There was 
 disagreement as to the meaning of this law, but the majority say: 
 
 Should the true construction of the laws be considered to require the superintendents to appoint 
 more than one writer to keep the poll of each officer voted for, still the committee do not think that the 
 omission to do so is such an irregularity as to render the election null and void, and thus deprive the 
 people of their votes or put them to the trouble and expense of a new election. No fraud or unfairness 
 is complained of, nor is it shown that any mistakes were made by the writer employed. The memo- 
 rialist was himself present during a considerable part of the day, saw how the election was conducted, 
 and made no objection to it. No decision of this House, so far as the committee are informed, has ever 
 sanctioned such a result. The case of Easton v. Scott, referred to by Mr. Botts in his memorial, is 
 entirely different from this. 
 
 The minority views also expressed the opinion that Mr. Botts's contention on 
 this point was untenable. 
 
 As a result of their conclusions the majority recommended this resolution: 
 
 Resolved, That John W. Jones is entitled to his seat in this House as a Representative from the 
 Sixth Congressional district of the State of Virginia. 
 
 The minority did not dissent from the conclusions embodied in this report. 
 
 On May 31/ in the House, Mr. Robert C. Schenck, of Ohio, called attention to 
 the fact that the decision of the committee had turned on the qualifications of voters, 
 and that if voters admitted to citizenship in the State without being citizens in 
 every respect had not been held to be disqualified, Mr. Botts would have had a 
 majority of several votes. Mr. Schenck said that he had concurred in excluding 
 the class of voters excluded by the majority because the admission of such votes 
 (imder the qualifications prescribed by the States) would be rendering nugatory 
 the power granted to the Congress of the United States, the States being permitted 
 to admit to citizenship those who were not recognized as citizens in every respect, 
 and particularly under the laws of the United States. It was true it would cut off 
 thousands of voters in Michigan and other States, and he would say to his New 
 England friends that it would "cut off the votes of all colored persons." To this 
 Mr. Stephen A. Douglas, of Illinois, a member of the Committee on Elections, 
 replied that he did not understand the decision of the committee as involving the 
 question as to whether that class of voters in other States should be admitted or 
 excluded. He held that any State of the Union had a right to prescribe the quali- 
 fications of voters within the State, and that this House had not the power to reject 
 a Member elected by such voters. 
 
 On May 31 ^ leave was granted to Mr. Botts to be heard in person at the bar of 
 the House. 
 
 On June 6 ^ the case came up in the House, the Speaker calling Mr. John B. 
 Weller, of Ohio, to the chair. 
 
 On motion of Mr. George W. Hopkins, of Virginia, it was — 
 
 Ordered, That the Speaker of this House, whose right to a seat as a Member of the House is contested , 
 have leave to speak upon this resolution, notwithstanding that clause of the Manual which restrains the 
 Speaker from addressing the House except upon questions of order. 
 
 ' Globe, p. 634. 
 
 ^Journal, p. 990. 
 
 = Journal, pp. 1011-1014; Globe, pp. 648, 649.
 
 § 812 GENERAL ELECTION CASES, 1840 TO 1850. 1051 
 
 Mr. Garrett Davis, of Kentucky, having raised a question as to whether the 
 petitioner would be hmited by the hour rule, the Speaker pro tempore held that he 
 would be, and on appeal the decision was sustained, yeas 102, nays 76. 
 
 Thereupon Mr. Botts addressed the House, and was followed by Mr. Jones, the 
 Speaker. 
 
 Then, on the question of agreeing to the resolution reported by the Committee 
 on Elections, there appeared, 3-eas 150, nays 0. 
 
 812. The Florida election case of Brockenbrough v. Cabell, in the 
 Twenty-ninth Congress. 
 
 A State law requiring returns to be made to the secretary of state 
 within a given time was held to be directory merely and not to prevent 
 the House from counting the votes. 
 
 A certificate of a State oflacer with belated returns from election 
 inspectors (whose authority to make such returns was doubtful) was 
 admitted although procured ex parte. 
 
 The House declined to recommit an election case in order to coxint 
 votes in precincts whence no votes had been returned or proven. 
 
 The petition of a contestant was admitted although defective in its 
 specification of particulars. 
 
 There being no law of Congress to regulate election contests, pro- 
 ceedings taken according to State law were approved. 
 
 Instance wherein questionable prima facie right was not disturbed 
 pending decision as to final right. 
 
 In 1846' the Committee of Elections reported in the case of Brockenbrough v. 
 Cabell, from Florida. 
 
 The contestant objected that, from the lawful returns, he was entitled to the 
 credentials that had been given to the sitting Member by the governor, and that 
 the greatest number of votes of the legally qualified voters were cast in his favor 
 and not in favor of the sitting Member. 
 
 Objection was made by the sitting Member that the petition of the contestant 
 should specify the particulars of the illegalities complained of as to the return; but 
 the committee deemed the petition — which was somewhat more definite than given 
 above, but did not go into particulars — sufficient and determined to proceed with 
 the inquiry. 
 
 The point on which the case turned was the construction of the laws of Florida 
 in regard to the returns. The contestant contended that under the law the judges 
 of probate were the returning officers, and the majority of the committee concurred 
 in this view. The sitting Member contended that the inspectors of precincts were 
 the returning officers, and the minority of the committee concurred in this view. 
 The conamittee was as nearly evenly divided in the case as possible. It is also to 
 be noted that a large portion of the total vote was returned by election inspectors, 
 the remainder being by judges of probate or legal substitute — the county clerk. 
 
 ' First Bession Twenty-ninth Congress, House Report No. 35; 1 Bartlett, p. 79; Rowell's Digest, 
 p. 123. The report was submitted by Mr. Hannibal Hamlin, of Maine; the minority views by Mr. 
 Erastus D. Culver, of New York.
 
 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. 
 
 §812 
 
 1052 
 
 This indicates a division of opinion in the State as to who were the proper returning 
 
 officers. 
 
 The law of the State further provided indisputably that the secretary of state 
 should count the returns at the expiration of thirty days after the election and 
 certify the result to the governor, who should issue the commission. 
 
 At the expiration of thirty days the secretary of state had received returns 
 from judges of probate in fourteen counties, from a county clerk in one county 
 where there was no judge of probate, and from precinct inspectors in eight counties. 
 The fifteen counties returned by judges of probate and the county clerk showed a 
 majority for Mr. Brockenb rough, but with the eight counties returned by inspectors 
 added, the majority was for Mr. Cabell. The secretary of state certified this result 
 to the governor, who issued his certificate to Mr. Cabell, who had the majority of 
 inspectors' returns and also of all the returns. . The contestant objected that only 
 the returns from the judges of probate (and the county clerk where there was no 
 judge) were lawful returns, and therefore that the certificate should have been 
 issued to him instead of to Mr. Cabell. 
 
 After the expiration of the thirty days returns were received from judges of 
 probate in three counties, from two of which inspectors' returns had been counted 
 by the secretary of state. 
 
 Also after the expiration of thirty days inspectors' returns were received from 
 Monroe County, the same being the only returns of any kind from that county. 
 
 If only the belated returns by judges of probate were added to the tabulation 
 of the secretary of state, Mr. Cabell would still be elected. 
 
 But if the Mom-oe County returns also should be added, Mr. Brockenbrough 
 would be elected. 
 
 Thus it appeared that if only returns of judges of probate were to be admitted 
 as lawful — the question as to time of return being waived — Mr. Brockenbrough was 
 elected. 
 
 And if — the time limit being waived — all the votes returned from all the 
 counties should be counted, still Mr. Brockenbrough was elected. 
 
 The committee did not question the prima facie right of Mr. Cabell to the seat. 
 As to the final right, the decision was complicated by a curious condition of 
 rule as to evidence. 
 
 The contestant offered the certificate of the secretary of state as to the belated 
 judge of probate returns from the three counties. The sitting Member objected, 
 that he had not been notified of an intention to procure this evidence; that the 
 returns were received after the expiration of thirty days, and that, as judges of 
 probate were not proper returning officers, their certificates and that of the secre- 
 tary were extra-official. These objections were overruled, and the principle seemed 
 to be thereby established that the judges of probate and not the inspectors were the 
 returning officers. 
 
 Next the contestant offered the certificate of the secretary of state with extract 
 of returns of inspectors of Monroe County. This was objected to on the ground that 
 sitting Member had not been notified of the procuring or production of it; that it 
 was not a legal return, and that it was inadmissible under the decision just made
 
 § 812 GENERAL ELECTION CASES, 1840 TO 1850. 1053 
 
 that the judges of probate were the returning officers. The majority of the commit- 
 tee decided the last objection well taken and rejected the evidence. 
 
 This decision left the majority for tlie sitting Member, and it was originally 
 the intention of the larger portion of the committee to so report. The argument 
 was very strong that such ex parte depositions as those relating to Monroe County 
 should not be admitted. Spaulding v. Mead was quoted in support of this principle. 
 The minority contended that these returns might not be admitted on the plea 
 that the other inspectors' returns had been admitted, because evidence as to the 
 other inspectors' returns was offered by the contestant as part of a document 
 tending to prove his right to a seat, and therefore that he could not ask that the 
 part of the paper which favored his adversary should be disregarded after the com- 
 mittee had received it. It was like the case of an admission proved by a party; he 
 must take the whole of it, that against him as well as that for him. After provin"- 
 a state of facts by his own evidence, the contestant might not disavow part of the 
 evidence and seek to avail himself of the remainder. Nor could it be used subse- 
 quently as a pretext for the introduction of confessedly illegal ex parte evidence. 
 
 The majority of the committee concluded that the law requiring the returns to 
 be made to the secretary of state to be directory merely, and that to throw out votes 
 returned after that time would lead to bad results and tend to defeat the will of the 
 people. 
 
 For the same reason, as expressed by Mr. Hannibal HamUn, of Maine, chairman of 
 the committee, in the debate, the committee decided not to confine itself to its narrow 
 construction that the legal returns were those returned by the judges of probate. 
 
 And following tins principle further, the majority decided that, as the inspectors' 
 returns of the eight counties counted by the secretary of state were admitted, so 
 also the inspectors' returns of Monroe County should be admitted. 
 
 This conclusion as to Monroe showed the election of Mr. Brockenbrough, and 
 the committee reported that Mr. Cabell was not entitled to the seat and that Mr. 
 Brockenbrough was entitled to it. 
 
 In course of consideration of this case the committee overruled the objection of 
 the sitting Member that contestant's notice of contest had not been seasonably 
 given. The committee found that the proceedings had been taken in accordance 
 with the requirements of a State law relating to contests before the State legislature 
 only; but held by the committee to be proper as a rule in this case. 
 
 As a result of their conclusions the majority of the committee reported the 
 following resolutions: 
 
 Resolved, That E. Carrington Cabell, returned to this House as a Member thereof from the State of 
 Florida, is not entitled to his seat. 
 
 Resolved, That William H. Brockenbrough is entitled to a seat in this House as a Representative 
 from the State of Florida. 
 
 The minority recommended the following: 
 
 Resolved, That WUliam H. Brockenbrough has not supported his petition, and that Edward C. 
 CabeU is entitled to his seat in this House. 
 
 The report was debated on January 20, 21, 22, 23, and 24.' It appeared from 
 the debate that from a few precincts in the district no returns had been made. 
 
 ' Globe, pp. 222, 230, 236, 238.
 
 1054 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 813 
 
 Indeed in one of them there was doubt as to whether or not an election had been 
 held. There was no evidence to show what had been done at these precincts, and 
 therefore during the debate Mr. Alexander D. Sims, of South Carolina, proposed * 
 a motion reciting this lack of certain returns, and providing that the report in this 
 case be recommitted to enable further testimony to be taken. Mr. Hamlin admitted 
 that there were precincts from which no returns had been received ; but by informal 
 statements made before the committee by the contestant, and apparently not dis- 
 puted by the sitting Member, the committee had vmderstood that the votes of such 
 precincts were in favor of contestant. In one county there was nothing to show 
 whether an election had been held or not. 
 
 The motion of Mr. Sims, under the practice prevailing at that time, was thrust 
 aside by the ordering of the previous question. Then the first resolution, unseating 
 Mr. Cabell, was agreed to, ^ yeas, 105; nays, 80. The resolution seating Mr. Brock- 
 enbrough was agreed to, yeas 100, nays 85. 
 
 Mr. Jacob Thompson, of Mississippi, then moved ^ to reconsider this vote in 
 order that the case might be delayed until testimony might be produced as to the 
 votes of the missing precincts. He based this proposition on the statement of the 
 sitting Member to the House that there were precincts from which no returns had 
 been made, and also the further statement of sitting Member that the coimting of 
 the votes of those precincts would give him a majority of the votes in the district. 
 
 Mr. Thompson's motion to reconsider was disagreed to, yeas 87, nays 91. 
 
 Mr. Brockenbrough then appeared and took the oath. 
 
 813. The New Jersey election case of Farlee v. E.unk in the Twenty- 
 ninth Congress. 
 
 Discussion of the meaning of the word " residence " as related to 
 the qualifications of a voter. 
 
 The House, by a close vote, sustained the contention that certain 
 students were residents in the place wherein they attended college. 
 
 In 1846,^ in the contested election case of Farlee v. Runk, from New Jersey, 
 the returns showed that — 
 
 Votes. 
 
 Mr. Runk received 8, 942 
 
 Mr. Farlee received 8, 926 
 
 Majority for Mr. Rimk 16 
 
 Mr. Farlee represented to the House by liis memorial that this majority was 
 obtained by the illegal votes of 36 students in the college and seminary at Princeton. 
 
 The committee divided on the question of the right of the students to vote, 
 the majority finding that 19 of them were entitled, and the minority finding that 
 none were entitled under the law and constitution of New Jersey. 
 
 'Journal, p. 281; Globe, p. 230. 
 
 ^Journal, pp. 293, 294, 295. 
 
 ^Journal, p. 296; Globe, p. 238. 
 
 < First session Twenty-ninth Congress, House Report No. 310; 1 Bartlett, p. 87; Rowell's Digest, 
 p. 124. The majority report was by Mr. James C. Dobbin, of North Carolina; the minority views by 
 Mr. Lucien B. Chase, of Tennessee.
 
 § 813 GENERAL ELECTIOX CASES, 1840 TO 1850. 1055 
 
 As the voting in New Jersey was by ballot, both minority and majority expe- 
 rienced difficulty in determining what the actual effect of the students' votes had 
 been. The 19 whom the majority considered entitled to vote had made depositions 
 in which 4 acknowledged that they voted for Mr. Runk and 1 that he voted for 
 Mr. Farlee. The other 14 availed themselves of their privilege not to answer and 
 dechned to declare how they voted. The majority of the committee did not attempt 
 to ascertain for whom the 14 voted, since it was not necessary under their contention 
 that the votes of the students were legal, and recommended a resolution that Mr. 
 Farlee was not entitled to the seat. 
 
 The minority, following the example in the New Jersey case of 1840, contended 
 that secondary evidence should be admitted, and from the deposition of a person 
 who testified that 16 of the students whose votes were not known were Whigs, 
 concluded that those 16 voted for Mr. Runk, the Whig candidate. With the 5 
 who acknowledged their votes, the minority arrived at a deduction of 20 votes 
 from Mr. Runk and 1 from Mr. Farlee. This left a majority of 3 for Mr. Farlee, 
 and the minority reported the conclusion that he was entitled to the seat. 
 
 The argimient on the question as to whether or not the students were qualified 
 to vote involved the question of residence. The then recently adopted constitution 
 of New Jersey defined voters as "every white male citizen of the United States, of 
 the age of twenty-one years, who shall have been a resident of tliis State one year 
 and of the county in which he claims his vote five months next before the election." 
 There was, moreover, a law passed in 1844 expressly declaring that students so 
 circimfistanced as those in question should not vote in New Jersey. The majority, 
 however, held that this law, whiiih had been passed under the old constitution, 
 was of no effect iinder the new constitution. The minority, while not relying on 
 this law to support their contention, yet denied that it had become inoperative. 
 
 The main issue, therefore, was joined on the meaning of the word "resident" 
 in the constitution. The majority admitted that most of the students at Princeton 
 would be incapable of voting, since they had left their homes for a temporary 
 purpose, meaning to return. But they conceived that the few who had voted 
 were entitled to do so, on the showing made in their depositions, "for they swear 
 that they left their last residence animo non revertendi, and adopt Princeton as 
 their residence for a space of time — not very brief, not certain as to its diiration — 
 undertermined in their minds as to the adoption of any particular residence should 
 they choose to abandon Princeton." The supreme court of New Jersey, in the case 
 of CadwaUader v. Howell and Moore, decided in November, 1840, had declared: 
 
 The residence required in the laws of this State to entitle a person to vote at an election means 
 his fixed domicUe or permanent home, and is not changed or altered by his occasional absence, with 
 or without his family, if it be animo revertendi. A residence in law, once obtained, continues without 
 intermission until a new one is gained. 
 
 But the opinion further went on — 
 
 The place where a man is cormorant may, perhaps, he properly considered as prima facie the place 
 of his legal residence; this presumption, however, may be easily overcome by proof of facts to the 
 contrary. If a person leave his original residence animo non revertendi, and adopt another (for a space 
 of time, however brief), if it be done animo manendi, his first residence is lost. But if, in leaving his 
 original residence, he does so animo revertendi, such original residence continues in law, notwithstand- 
 ing the temporarj- absence of himself and family.
 
 J^056 PRECEDENTS OF THE HOUSE OF KEPEESENTATIVES. § 813 
 
 The minority contended that residence was defined by Judge Story, who said 
 in his Conflict of Laws that "domicile, in a legal sense, is where the person has his 
 true, fixed, and permanent home and principal establislunent, and to wliich, 
 whenever he is absent, he has the intention of returning." All of the students 
 testified that they went to Princeton for purposes of study. Some of them stated 
 that after they had accomplished their objects they intended to leave Princeton; 
 others that they should go "wherever the providence of God may call them." There 
 was no proof whatever that they intended to make Princeton their "true, fixed, 
 and permanent home;" no evidence that they intended to remain at Princeton an 
 "unlimited time." The minority call attention to the fact that several of the 
 students who voted had already left Princeton and the committee had been unable 
 to procure their testimony. These students were entered on the college catalogue 
 as residing in other places; several in other States. This had undoubtedly been 
 done on the authority of the students themselves. Although the students may 
 have left their homes animo non revertendi, yet there was neither positive nor pre- 
 sumptive proof that they came to Princeton animo manendi. The evidence showed 
 the contrary. The court in the case above quoted had held — 
 
 It is for the reason that the students of our colleges, the inmates of our law schools and medical 
 universities, and hundreds of others who are scattered on land and sea, engaged for the time being in 
 the prosecution of some transient object, are considered in law as residing in their original homes, although 
 in point of fact they may be living for the time being elsewhere. 
 
 The majority had reported a resolution as follows: 
 
 Resolved, That Isaac G. Farlee is not entitled to a seat in this House as a Representative from the 
 State of New Jersey.. 
 
 The minority recommended the following: 
 
 Resolved, That John Runk is not entitled to a seat upon this floor. 
 
 Resolved, That Isaac G. Farlee, having received a majority of the legal votes of the legally qualified 
 voters of the Third Congressional district of New Jersey, is entitled to his seat upon this floor. 
 
 Mr. Hannibal Hamlin, of Maine, on March 3,* when the report was considered, 
 moved to strike out all after the word "resolved" in the resolution of the majority, 
 and insert the text of the two minority resolutions. 
 
 This motion was decided in the negative, yeas 76, nays 112. 
 
 Thereupon the House, by a vote of yeas 119, nays 66, agreed to the resolution 
 of the majority of the committee, declaring petitioner not entitled to the seat. 
 
 Thereupon Mr. Hamlin, as a question of privilege, offered the following: 
 
 Resolved, That John Runk is not entitled to a seat in this House. 
 
 A motion that the resolution lie on the table was disagreed to, yeas 93, nays 99. 
 
 Then, on agreeing to the resolution, there appeared yeas 96, nays 96. 
 
 "The House being equally divided," says the Journal, "the Speaker voted with 
 the nays, and so the House refused to agree to the said resolution; and Mr. Runk, 
 the sitting Member, retains his seat." 
 
 'Journal, pp. 431, 477-483; Globe, pp. 448, 454, 456.
 
 § ^14 GENEKAL ELECTION CASES, 1840 TO 1850. 1057 
 
 814. The New York election case of Monroe v. Jackson, in the Thir- 
 tieth Congress. 
 
 Discussion of the qualifications of voters in respect to residence of 
 paupers in an almshouse. 
 
 Discussion of the evidence required to establish for whom a voter 
 has cast his ballot. 
 
 Form of resolution by which the House, in 1848, provided for taking 
 testimony in an election case. 
 
 The earlier regulations for taking testimony in an election case pro- 
 vided that the depositions should be forwarded to the Speaker. 
 
 On March 25, 1848/ the Committee on Elections reported in the case of Monroe 
 v^ Jackson, from New York. This was a case wherein the contestant charged 
 fraud sufficient to account for the majority of 143 votes returned for the sitting 
 Member. The majority of the conmiittee satisfied itself of the truth of the char^res 
 and reported m favor of the contestant. The minority contended that there was 
 not positive proof suflicient to set aside the result certified to by the governor of 
 the State, and recommended resolutions confirming the sitting Member "in his seat 
 
 The House, on April 19,^ by a vote of 160 to 13, declined to agree to a propo- 
 sition that, as It did not satisfactorily appear that either was elected, the seat 
 should be declared vacant. Then the propositions of the minority, that Mr. Jackson 
 was entitled to the seat and Mr. Monroe was not entitled to it, were disa<Teed to— 
 yeas 102, nays 93. '^ 
 
 The question recurring on the first proposition of the majoritv, that Mr Jack- 
 son was not entitled to the seat, it was decided in the affirmative— yeas 103 nays 93 
 
 On the second proposition of the majority, that Mr. Monroe was entitled to 
 the seat, there appeared 91 je&s and 104 nays. 
 
 So the seat was left vacant. 
 
 Wlule a large number of frauds and irregularities were alleged, and attempt 
 was made to sustam them by evidence of varying degrees of strength, the principal 
 and most tangible issue m the case arose over the charge that 163 paupers from an 
 almshouse had cast their ballots for the sitting Member, and that to these his 
 apparent majority was due. The law of New York provided that no person should 
 be deemed to have lost or acquired a residence by living in any poorhouse alms- 
 house, hospital, or asylum, in which he shall be maintained at public expense " 
 The right of the paupers to vote in the election district where their legal residence 
 was could not be questioned, but neither majority nor minority contended that 
 they might vote on their almshouse residence. 
 
 The issue was as to the sufficiency of proof. The majority satisfied themselves 
 that the paupers were not qualified voters m respect to residence by the testimony 
 of officers of the almshouse as to names on its books. The minority contended 
 that the voters themselves should have been cal led to testify as to residence, and 
 
 ■ First session Thirtieth Congress, 1 Bartlett, p. 98; Rowell's Digest, p. 126: House Report No 403 
 The majonty report was made by Mr. Joseph Mullin, of New York; the minority views by Mr' 
 Timothy Jenkins, of New York. ' 
 
 -Globe, p. 643; Journal, pp. 705-709. 
 
 59M — VOL 1—07 67
 
 1058 PBECEDENTS OP THE HOUSE OF REPRESENTATIVES. § 815 
 
 that the secondary evidence adduced was not conclusive. Not even the almshouse 
 books were put in evidence. 
 
 Elections in New York being by ballot, it also became necessary to show for 
 whom the alleged illegal votes were thrown. Again, the voters were not interro- 
 gated, but the majority of the committee satisfied themselves that the illegal votes 
 were for the sitting Member because tickets of his party were distributed at the 
 almshouse, because officers of that institution and those who conveyed the paupers 
 to the polls were of his party, and because witnesses noticed the ballots when cast 
 and professed to distinguish and recognize them by texture of the paper. The 
 minority combated this evidence as too indefinite and inconclusive. 
 
 The majority, on the strength of the evidence which they allowed, found for 
 the contestaiit a majority of 14 votes. The minority denied this conclusion. 
 
 The testimony in this case was taken in accordance with this resolution: '■ 
 
 Resolved, That the parties * * * be, and they hereby are, authorized to take the testimony 
 of such witnesses as either of them may require, by depositions, in conformity to the laws of the State 
 of New York, in force at the time of taking such testimony, on the subject of contested elections in that 
 State: Provided, That the parties may, by agreement under their hands, regulate the mode of giving 
 notice and other matters of form, at their discretion; but if no such agreement shall be made, then each 
 party shall give to the other such notice of the time and place of taking such depositions a.s are prescribed 
 in the aforesaid laws of New York: Provided, also, That when such depositions are taken they shall, 
 together with the agreements or notices aforesaid, be sealed up by the officer taking the same and dircted 
 to the Speaker of the House. 
 
 815. The Iowa election case of Miller v. Thompson, in the Thirty- 
 first Congress. 
 
 In earlier times the taking of testimony is an election case was gov- 
 erned by a resolution of the House. 
 
 Testimony in an election case, under the earlier practice, was sent to 
 the Speaker and referred by the House. 
 
 In 1849 election contests were instituted by memorial. 
 
 On December 31, 1849,^ Mr. Edward D. Baker, of Ilhnois, presented the memo- 
 rial of Daniel F. Miller, claiming election from the First Congressional district of 
 Iowa, and praying to be admitted to the seat occupied by William Thompson. 
 This memorial was referred to the Committee on Elections. 
 
 On January 23, 1850,' the House agreed to a resolution providing for the taking 
 of testimony in accordance with the provisions of the laws of Iowa, and also making 
 certain stipulations not provided for by those laws. It was provided that this 
 testimony should be forwarded to the Speaker, and on March 19^ the Speaker laid 
 before the House certain depositions forwarded to him under the resolution. 
 
 On June 18, Mr.* WilHam Strong, of Pennsylvania, presented the report of the 
 majority of the committee and Mr. John Van Dyke, of New Jersey, presented the 
 views of the minority. 
 
 'Journal, p. 174. 
 
 ^ First session Thirty-first Congress, Journal, p. 190. 
 
 ^Joiunal, p. 394. 
 
 ^Journal, p. 684. 
 
 = Journal, p. 1029; House Report No. 400.
 
 § ^l*' GENERAL ELECTION CASES, 1840 TO 1S50. 1059 
 
 The sitting Member, William Thompson, had been returned by an official 
 majority of 386 votes. 
 
 The contestant alleged two main objections which, if sustained, would have 
 destroyed this majonty. The board of canvassers rejected the vote of Kanesville 
 which had given Miller, the contestant, 493 votes, and Thompson, the sittin- Mem- 
 ber, 30. Contestant claimed that this rejection was illegal. The contestant 
 further objected that the canvassers had counted illegally the votes of Boone Town- 
 ship, m Polk County, which were 42 for Thompson and 6 for contestant. 
 
 Therefore the questions relating to Kanesville and Boone in Polk County were 
 of prune importance in the consideration of the case. But other questions were 
 mvolved, and the subject naturally divides itself as follows: 
 
 816. The election case of Miller v. Thompson, continued. 
 
 Being satisfied as to the intention of the voter, the Elections Com- 
 mittee counted ballots from which the middle initial of candidate's name 
 was lacking. 
 
 Votes apparently intended for Congressional candidates, but returned 
 as for a State office, were counted without further inquiry. 
 
 1. As to ballots lacking the middle initial of contestant's name. 
 
 The contestant claimed that he should be allowed 7 additional votes of Marion 
 County which were given for -'Daniel .Miller" and were rejected by the canvassers 
 on account of the omission of the initial of the middle name, though the Christian 
 and surnames were correctly described. The committee were unanimously of the 
 opinion that the 7 votes should be counted for contestant. The minority views 
 
 state 
 
 The committee, therefore, are satisfied that the said 7 votes were honestly intended for the 
 contestant and allow them accordingly. 
 
 2. As to certain irregularities in the conduct of an election. 
 
 The majority and minority of the committee united in crediting to sitting 
 Member 11 votes and to contestant 3 votes in the town of Wells, in Appanoose 
 County. The mmonty views state the case as to this precinct: 
 
 It does not appear by the election proceedings that the officers of election were sworn, nor is it at aU 
 proved in any other way. And although it appears that "W. Thompson^' and "D. F Miller^" were 
 voted for for Congress, yet it does not appear how many votes either of them received; and the only 
 mode of inferring that either of them received any votes at all is that the poll book states that for "super- 
 mtendent of public instruction," William Thompson received 11 votes, and that for the same office D F 
 Miller received 3 votes. No proof is brought to bear on this case to prove anything whatever about it' 
 and If ever irregularity or illegality should set aside an entire poll, it should be such as this But the 
 committee, from a ver>- strong indisposition to deprive the citizen of his right to vote in consequence of 
 the errors and blunders of others, nevertheless allow this vote to be counted. 
 The vote of the committee on counting these votes was ayes 8, noes 1. 
 
 817. The election case of Miller v. Thompson, continued 
 In determining the residence of a voter, the intention to' remain is 
 held consistent with an intention to change the abode at a future indefi- 
 nite day. 
 
 Instance wherein a committee reported its proceedings, which therebv 
 became a proper subject of debate. (Footnote.)
 
 1060 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 817 
 
 Residence in a county being a qualification of voters, the votes of 
 nonresidents were rejected. 
 
 3. As to the qualifications of certain voters whose residence was questioned. 
 
 This question concerned certain voters at Kanesville, but is not to be con- 
 founded with the different and more important question to be considered later in 
 relation to that place. 
 
 ilr. Joseph E. McDonald, of Indiana, in the course of the debate ' stated that 
 the people of Kanesville were certain Mormons, who had from necessity settled 
 there temporarily on their way to the valley of Salt Lake. They had gathered 
 from all parts of the United States and from foreign countries. Kanesville was 
 only a stopping place for them; they did not regard it as their permanent home. 
 This was shown by the testimony. He thought the law of Iowa conferred the 
 right of suffrage not for domicile merely, but for a residence and interest in the 
 place. "If a citizen of the United States goes abroad," said Mr. McDonald, "and 
 chooses to wander through foreign countries, when he returns home he is not 
 treated as an alien, but resumes the rights he had temporarily laid down. But if 
 an alien comes here to settle and does not become a citizen of the United States in 
 due form of law, he is not entitled to participate in the franchise which belongs to 
 a citizen." 
 
 The report of the majority says: 
 
 The committee dismiss the * * * objections urged by the sitting Member * * * with 
 the single remark that they are not sustained by the evidence which has been presented. The quali- 
 fications of voters in the State of Iowa, as defined in her constitution, are six months' residence in the 
 State of any white male citizen of the United States and twenty days' residence in the county in which 
 the vote is claimed next preceding the election. It is doubtless true that to constitute residence within 
 the constitutional meaning of the term there must be the "intention to remain;" but this intention is 
 entirely consistent with a purpose to change the place of abode at some future and indefinite day. 
 Actual abode is prima facie residence, and we are unable to perceive anything in the evidence submit- 
 ted which removes the presumptiou of qualification arising from the actual abode of the Kanesville 
 voters within the State. 
 
 The vote in the committee on receiving the Kanesville vote was ayes 5, noes 4,^ 
 but it seems evident that the principal issue on the vote was not the question herein 
 set forth, but another question, which is considered later. 
 
 4. The sitting Member objected to 56 votes cast for contestant in Dallas 
 County at Boone Township on the ground that the voters were nonresidents of the 
 county. The issue involved on this point was largely one of fact. The majority 
 of the committee, by a vote of 6 to 3, decided to reject from the poll for contestant 
 38 of these votes. The minority say : 
 
 These votes were all received as legal votes by the judges of election, who are presumed to have 
 made all due inquiry and to have decided correctly. 
 
 Therefore the minority, in the absence of what they considered conclusive 
 proof from the sitting Member, held that the votes should stand. 
 
 ' Globe, p. 1295. 
 
 ^ The report of the committee presents the record of the yea and nay votes on the various ques- 
 tions arising in the committee, and therefore the action of the committee became a legitimate subject 
 of discussion on the floor. (Report No. 400, p. 12; Globe, pp. 1295, 1299.)
 
 § 818 GENERAL, ELECTION CASES, 1840 TO 1850. 1061 
 
 818. The election case of Miller v. Thompson, continued. 
 Votes cast by voters having all qualifications except the required 
 residence within the county ■were rejected by a divided committee. 
 5. The principal question as to the Kanesville votes. 
 
 This precinct cast 493 votes for contestant and 30 for the sitting Member. 
 The minority views say : 
 
 It is fully established, as well as admitted, that the persons voting at this precinct had a perfect 
 right to vote in the First Congressional district, and to vote for either the contestant or the sitting 
 Member. It is not pretended that any fraud, injustice, or unfairness was practiced by either the 
 voters or the election officers toward anyone, but everything seems to have been done honestly, fairly, 
 and in good faith, and that the persons voting were legal voters in the district. 
 
 The voting precinct of Kanesville, for the election in question, was organized 
 by the authorities of Monroe County under peculiar provisions of the Iowa laws, 
 which provided that sparsely settled communities not within organized coimtics 
 should be attached for certain purposes to adjacent counties. The minority views 
 claim that at the time of the election in question no one doubted that Kanesville 
 precinct should vote with Monroe Coimty; but that by a survey made after the 
 election it was shown that Kanesville was in fact so situated that it belonged imder 
 the technical terms of law with Marion or Mahaska County. The majority report 
 also claimed that even supposing the territory of Kanesville to be properly witliin 
 the limits assigned to the jurisdiction, yet the laws of Iowa, properly construed, did 
 not give the commissioners of Monroe County the authority to appoint the election 
 officers as they had done; but that the law appointed a different way for the 
 appointment of such officers. The majority say in their report: 
 
 By the Constitution of the United States, the times, places, and manner of holding elections, 
 and the qualifications of voters, are left to the control of the States. The elective franchise is a political, 
 not a natural, right, and can only be exercised in the way, at the time, and at the place which may be 
 designated by law. If, by the constitution and laws of luwa, therefore, it is required that electors 
 should vote only in the counties in which they resided, and at designated places within those counties, 
 it can not be doubted that votes given in other counties, or at other than the designated places, must 
 be treated as nullities. To deny this is to deny to the State the power expressly reserved in the Con- 
 stitution to prescribe the place and manner of holding the elections — a power essential to the preser- 
 vation of the purity of elections. Assuming, then, that those who voted at Kanesville were qualified 
 voters, it remains to be considered whether they voted at the place prescribed by law. 
 
 The majority conclude that they did not, and continue: 
 
 In many of the States the right to vote is confined by law to voting in the ward or township in 
 which the elector resides; and, even under this more stringent provision, votes in other wards or town- 
 ships have, it is believed, been uniformly adjudged illegal. 
 
 The majority further answer another objection: 
 
 Nor is their the voters'] belief that they were rightly voting at Kanesville at all material, though 
 it may have been their misfortune. Their right to vote was a political right, restricted by their actual 
 residence, and not by what they may have supposed it to be. The opposite doctrine would convert 
 the constitutional provision into a declaration that the voter should vote in the county in which he 
 supposes he resides, and make his franchise dependent upon his own conjecture. 
 
 The minority call attention to the fact that the entire board of commissioners 
 of Monroe County and a majority of the election officers at Kanesville were the 
 political friends of the sitting Member. No question was raised against the cor-
 
 1062 
 
 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 819 
 
 rectness of the procedure until after the election. After commenting on the 
 purely technical objections to the votes, the minority conclude that they should 
 not be sustained, "in view of the great principle in our institutions which seeks to 
 afford to all the citizens of the Union the right of suffrage." 
 
 In the committee, 5 members voted to receive the votes of Kanesville and 4 
 voted against the reception. 
 
 Tills question was debated at considerable length on June 26, 27, and 28,' 
 when the report was before the House. 
 
 819. The election case of Miller v. Thompson, continued. 
 
 A question as to counting the votes of persons whose position in rela- 
 tion to the boundaries of the district was in doubt. 
 
 Instance wherein the majority of a committee agreed on a report, but 
 disagreed on the facts necessary to sustain the report. 
 
 An Elections Committee being curiously confused as to its majority 
 and minority conclusions, the House disregarded both. 
 
 The report of the Elections Committtee not leading to a certain con- 
 clusion, the House declared the seat vacant. 
 
 The House having negatived a declaration that sitting Member was 
 entitled to the seat, it was then declared by resolution that the seat was 
 vacant. 
 
 Instance wherein the minority of an Elections Committee recom- 
 mended declarations as to the question in issue. 
 
 6. The contestant claimed that the votes of Boone TowTiship, in Boone County, 
 which were cast, 42 for Thompson and 6 for Miller, should be rejected because 
 Boone Township was not in the First Congressional district, but in the adjoining 
 district, the Second. The minority views claim that all the persons who voted in 
 Boone Township actually resided at that time in the Second Congressional district, 
 saymg: 
 
 About this there is no dispute, as the districting line of Iowa places the whole of Polk County in 
 the First district, and the whole of Boone County in the Second district; and the only ground on which 
 it is claimed that these votes given in Boone were correctly counted in Polk County is, tliat by an act 
 of the legislature of Iowa, approved January 17, 1S4G, Boone County was attached to Polk County, for 
 election, revenue, and judicial purposes, and that the constitution of that State prohibits the division 
 of counties in making Congressional districts. But, by an act of Congress approved June 25, 1842, 
 every State that is entitled to more than one Representative is required to vote by district * * * and 
 in pursuance of this act of Congress, the State of Iowa, on the 22d of February, 1847, divided herself 
 into two Congressional districts. * * * Now it seems impossible that Congress * * * could have 
 intended that, for Congressional purposes, the inhabitants and residents of one district could lawfully 
 vote in another. And can it be supposed that the State of Iowa, when, subsequently to all these other 
 laws, she ran a line across her territory dividing it into two districts, meant to say that after all that 
 line meant nothing, and that the inhabitants living in one district, when voting for Representatives in 
 Congress, might still vote in the other district? 
 
 Therefore the minority favored the exclusion of the votes of Boone. 
 The majority of the committee, after showing how Boone Township was for 
 judicial and election purposes added to Polk County, says : 
 
 The constitution of Iowa declares that any country attached to any county for judicial purposes 
 shall, unless otherwise provided for, be considered as forming a part of said county for election purposes. 
 
 'Globe, pp. 1293, 1301, 1310.
 
 § 819 GENER.U. ELECTION CASES, 1840 TO 1850. 1063 
 
 But, unless the vote of Boone Township be received and counted as part of Polk County, this constitu, 
 tional provision becomes a nullity, and the voters of Boone are entirely disfranchised. Their vote 
 could be received and counted at no other place. No provision was ever made for their voting in any 
 other county than Polk. The electors at Kanesville could have voted, had they chosen to do so, in the 
 county lying east of them, to which they had been attached; but these voters could have had no voice 
 in the choice of a Representative, unless their votes had been received as a portion of the vote of the 
 First district, of which Polk County was declared to be a part. It is, however, objected that the 
 constitution also contains the following provision: "No county shall be divided in forming a Con<Tes- 
 sional, senatorial, or representative district." It is urged that, if Boone is to be considered as forming 
 a part of Polk County, then a county has been divided in forming a Congressional district, and therefore 
 the districting act must be considered as repealing the antecedent act attaching Boone to Polk. To 
 this it may be answered, that if, within the meaning of the constitution, the districting act did divide 
 Polk County by separating Boone Township from it, the act itself is unconstitutional and inoperative, 
 so far as it aims to sever Boone from the county of which, under the constitution and law, it forms -1 
 part. Nor does there appear to be the least reason for asserting that it repealed the act attaching 
 Boone to Polk. ^ 
 
 Therefore the majority report concludes that the Boone returns siiould be 
 counted. 
 
 It appears that in the committee, on the question of rejecting the Boone 
 returns, there were sLx ayes and three noes, Mr. Strong, who drew the majority 
 report, being among the noes. So it is evident that while the majority report favors 
 counting the Boone votes, the majority of the committee voted that they should 
 not be counted. 
 
 The majority report concliKlcd that the sitting Member had a majority of 15 
 votes, and recommended this resolution: 
 
 Resolved, That William Thompson is entitled to the seat in this House which he now holds as 
 the Representative from the First Congressional district of Iowa. 
 
 The minority found that, as a result of their conclusions, the concestant had a 
 majority and was entitled to the seat; but instead of reporting a resolution declar- 
 atory of his rights, reported a series of resolutions in form as follows: 
 
 Resolved, That the 7 votes cast at Pleasant Grove with the middle letter of the contestant's name 
 omitted be counted. 
 
 Resolved. That the vote cast at Kanesville be allowed and counted as a legal vote. 
 
 And in five other resolutions the remaining points in thr; case were included. 
 
 In the debate in the House on June 27 ' Mr. E. W. McGaughey, of Indiana, a mem- 
 ber of the Conimittee on Elections, commented on the curious state of the report. A 
 majority of the committee had concluded that the sittmg Member was elected, 
 but the Members who composed that majority did not all agree on the reception of 
 certain votes needed to elect the sitting Member. Mr. McGaughey said : 
 
 Mr. Ashe votes with the majority in favor of the admission of the votes at Kanesville, and with 
 the minority against the rejection of Boone Township, in the Second district, and as it requires the admis- 
 sion of the first and the rejection of the other to decide the case in favor of Mr. Miller, it follows that 
 Mr. Ashe comes to the final result by his individual computation that Mr. Thomas is elected, while, 
 on the other hand, Mr. Harris, of Alabama, and Mr. Harris, of Tennessee, voted in committee with the 
 minority against the admission of Kanesville, and with the majority in favor of the rejection of Boone 
 Township, in the Second district; but as they are in the minority against the Kanesville vote, although 
 in the majority in regard to the other question, they can by their computation arrive at the final con- 
 clusion that Mr. Thompson is elected. This presents the singular anomaly of men agreeing in a result, 
 
 ' Globe, p. 1299.
 
 1064 
 
 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 820 
 
 and disagreeing about the very facts necessary to produce that result. Now, sir, I maintain, that inas- 
 much as a majority of the committee agree upon a state of facts which shows conclusively that the 
 contestant has received a majority of the legal votes, that it follows as a necessary consequence that 
 the honorable chairman had no right to make a report which denies the right to a seat of the person 
 thus decided to have received a majority of the votes, and that his report., submitted under such cir- 
 cumstances, should not and can not be regarded as the majority report. 
 
 The report was debated on June 26 to 28/ and on the latter date the resolutions 
 of the minority, with an added resolution declaring Daniel F. IVIiller, the contestant, 
 entitled to the seat, was offered as a substitute for the resolution reported by the 
 majority, confirming the title of the sitting Member. 
 
 On the substitute there appeared, yeas 95, nays 94. Thereupon, the Speaker 
 voted with the nays, making a tie vote, and so the amendment failed. 
 
 The question recurring on the resolution of the majority declaring William 
 Thompson, the sitting Member, entitled to the seat, there appeared, yeas 94, nays 
 102. So the House declined to affirm that the sitting Member was "entitled to the 
 
 seat." 
 
 Some question arose as to the effect of this vote, and whether or not it produced 
 a vacancy such as would authorize the Speaker to notify the executive of Iowa. 
 Mter debate ' Mr. McGaughey, offered this resolution, which was ruled by the 
 Speaker^ to present a question of privilege: 
 
 Resolved, That there is now a vacancy in this House in the representation from the First Congres- 
 sional district of the State of Iowa, and that the fact of vacancy be notified to the executive of the State of 
 Iowa by the Speaker of this House. 
 
 This resolution was agreed to, yeas 108, nays 84. 
 
 820. The Pennsylvania election case of Littell v. Robbins, Jr., in 
 the Thirty-first Congress. 
 
 In 1850 election contests were yet instituted by memorial and con- 
 ducted by rule laid down by the House. 
 
 The records and returns of election oflicers are presumed to be cor- 
 rect and are to be set aside only on conclusive proof. 
 
 Discussion of degree and kind of evidence required to rebut the pre- 
 sumption in favor of the acts of election oflBicers. 
 
 On February 4, 1850,'' Mr. Joseph R. Chandler, of Pennsylvania, presented the 
 memorial of John S. Littell representing that he was duly elected a Representative 
 from the Fourth Congressional district of Pennsylvania, and praying an opportunity 
 to establish his right to the seat occupied by John Robbons, jr. This memorial was 
 referred to the Committee on Elections. 
 
 On January 29,^ there being no law at that time regulating the conduct of con- 
 tested elections, the House agreed to a resolution governing the taking of testimony 
 and the forwarding of the depositions. 
 
 On August 19," Mr. William Strong, of Pennsylvania, presented the report of 
 
 'Globe, pp. 1292, 1299, 1305, 1315; Journal, pp. 1057-1066. 
 
 ^^ Globe, pp. 1316, 1317; Journal, p. 1005. 
 
 ^Howell Cobb, of Georgia, Speaker. 
 
 * First session Thirty-first Congress, Journal, p. 223. 
 
 'Journal, p. 42C. 
 
 "Journal, p. 1275; House Report, No. 488. 
 
 I
 
 § 820 GENERAI. ELECTION CASES, 1840 TO 1850. 1065 
 
 the majority of the committee in favor of sitting Member; and Mr. John Van Dyke 
 of New Jersey, mmonty views in favor of declaring the seat vacant ' 
 
 Phil ?1 t®"ol 'r^f^ ^°' ^^- ^°^^^' ^'^' ■''''■ ^^ '^'' P^^^^ ^l^^tion district of 
 Philadelphia 924 votes were returned for Mr. Robbins and 169 for Mr. Littell The 
 latter alleged frauds which diminished his actual vote in the district from 26.3 to 169 
 and mcreased the actual vote of the sitting Member from 445 to 9'>4 
 
 The sittmg Member presented no testimony. The testimony relied upon by the 
 contestant prmcipally was that given by a committee of citizens who stood by the 
 
 Tf "tt"p f ; T !. V'°''r'r P'"''^ ^° '^' ^'^«^^°^ °^^'''- 1° one precinct 
 of the Penn district the list of the committee showed 269 less voters than were 
 
 returned by the officers within-all of whom were of the same party as the sitting 
 Member At the other precinct-where the election board was also partisan-the 
 comniittee counted 167 voters less than were recorded by the official returns It 
 further appeared that the return of the election showed the names of more persons 
 than were on the registration lists provided by law; and it also appeared that an 
 effort to find voters recorded by the election officers, but not recorded by the com- 
 mittees who watched the votmg, failed, although the contestant caused officers with 
 subpoenas to search for them. 
 
 It ^^ ^ei-ted by the majority of the committee, and admitted by the minority 
 that the contestant had not proven conclusively that any votes given for him had 
 been counted for the sittmg Member. It was also evident that the evidence of the 
 conmiittees of citizens who stood by the polling places, even if admitted to be con- 
 clusive did not show a sufficient number of fraudulent returns to overcome the 
 
 3"'; f ^t'T^^ fr^"''' ^"' '^" ^"^°"'-^ "'"^^^ '^'^' tl^« f^^^d proven was 
 sufficient to jus ify the throwing out of the whole vote of the Penn division The 
 
 elimination of that vote would give the seat to the contestant; but the minority 
 merely recommended that the seat be declared vacant. 
 
 The majority of the committee, however, did not give to the evidence of the 
 committees of citizens the importance that the minority attributed to them The 
 majority considered that— • -me 
 
 £n^bv tr"'ffi°^ '°';*!'^°^ I" '■'^"' '*' '^' P^««'^Pti°'^ ^^t be in favor of the correctness of the record 
 nnfvnn rf 'r ''''*'°°^'^^*^"'"'^'"^"- "F^"disnot to be presumed " is a maxim not 
 
 of iLttenTiorfndT"'"'^ 
 
 of inattention, and the responsibilities connected with the failure to discharge their duty all unite to 
 
 secure a credence to the acts of the officers, which can not be justly accorded to the acte i othel 
 especially if those others be mere partisans. ^^' 
 
 The committee further go on to state that the laws of Pennsylvania tended to 
 g^ard agamst the perpetration of the frauds alleged. Therefore the committee held 
 that the prima facie presumption had not been overturned, and reported a resolution 
 declaring the sitting Member entitled to his seat. 
 
 On September 1 1 ' the minority moved to substitute for the majority resolution a 
 declaration that the seat should be declared vacant. This was decided in the 
 negative, yea.s 56 nays 110. Then the resolution of the majority, declaring Mr. 
 Kobbins entitled to the seat, was ag reed to without division. 
 
 'Journal, pp. 1444-1446.
 
 Chapter XXVIL 
 
 GENERAL ELECTION CASES, 1850 to i860. 
 
 1. House cases from the Thirty-second to the Thirty-sixth Congresses. Sections 821-843.' 
 
 2. The Senate case of James Harlan. Section 844. 
 
 821. The Pennsylvania election case of Wright v. Fuller, in the 
 Thirty-second Congress. 
 
 Construction of the provision of the law of 1851 requiring the notice 
 of contest to " specify particularly." 
 
 The notice of contest need not specify the names of voters objected 
 to as not qualified. 
 
 On April 22, 1852,^ the Committee on Elections reported in the case of Wright v. 
 Fuller, of Pennsylvania. This case involved three main features: The sufficiency 
 of the notice of contest under the law of 1851, the conduct of election officers, and 
 alleged fraudulent votes. 
 
 The sitting Member alleged that the notice was not in accordance with the 
 requirement that the contestant should "specify particularly" the grounds of the 
 contest. The minority and majority of the committee differed in their interpreta- 
 tion of the law. After printing in full the notice, the majority report contends: 
 
 A majority of the committee deeming this notice sufficiently certain and definite to apprise the 
 sitting Member of the reasons "of the grounds" on which his election was contested, overruled this 
 objection. The first section of the law which directs the contestant to give notice to the sitting Member 
 reads in conclusion thus: "And in such notice shall .specify particularly the grounds upon which he 
 relies in the contest." A\'hat are the "grounds," the reasons on which the seat is to be contested? The 
 notice furnishes us with the answer: The gross and flagrant misconduct and irregularities of the officers 
 constituting the election board, and also the reception of such a number of illegal votes as changed the 
 
 'Additional cases in this period, classified in different chapters, are: 
 
 Thirty-fourth Congress, Turney v. Marshall and Fouke v. Trumbull, Illinois. (Sec. 415.) 
 
 Thirty-fifth Congress, Fuller v. Kingsbury, Dakota. (Sec. 408.) 
 
 Thirty-fifth Congress, WTiyte v. Harris, Maryland. (Sec. 324.) 
 
 Thirty-fifth Congress, Phelps, Cavanaugh, and Becker, Minnesota. (Sec. 519.) 
 
 Thirty-fifth Congress, Vallandigham v. Campbell, Ohio. (Sec. 726.) 
 
 Thirty-sixth Congress, Williamson v. Sickles, New York. (Sec. 597.) 
 
 Thirty-sixth Congress, Harrison v. Davis, Maryland. (Sec. 325.) 
 
 ^ First session Thirty-second Congress, House Report No. 136; 1 Bartlett, p. 152; Rowell's Digest, 
 p. 137. 
 
 1066
 
 § ^^2- GENERAL ELECTION CASES, 18.50 TO 1860. 1067 
 
 result of the election. The intention of the law requiring this notice to be given was to prevent any 
 
 all^ed-no want of due information protested-the committee could but conclude that the notice 
 ^v.t un the purview of the law, was all sufficient. If, as the fitting Member contend... the act requ red 
 that the names of the illegal voters should have been particularly specified in the notice, we would 
 certainly have the fact set forth and declared in the sixth section, which provides that the "names of 
 he witnesses to be examined, and their places of residence, should be given, by leaving a copy with 
 he pe^on to be notified, at his usual place of abode, at least ten days before the examination '' The 
 furnishing of a list of names of the illegal voters might possibly have put the sitting Member in a stronger 
 position to rebut the contestanfs proof ; but that the contestant was required to furnish such a list is not 
 within the letter nor demanded by the spirit of the statute. 
 
 The minority, who from their views evidently considered that on this point the 
 case turned principally, contended : 
 
 Now what do the words "specify particularly," in this connection, mean? In our opinion thev 
 mean a clear precise, definite, and full statement of the fact« on which an election is proposed to be 
 contested^ The charges must be positive, tangible, direct, and particular. If a party complain of illegal 
 voting, therefore, inasmuch a. illegal voting is susceptible of particuhir specification, he must state 
 where it was done, when it was done, the number of illegal votes, and by whom given, and the disquali- 
 fication. Clearly nothing less would be "a particular specification," and the absence of any of these 
 requisites must render such specification vague, indefinite, and therefore insufficient. The notice of the 
 contestant in this case does not state the number or the names of any who voted illegally and is there 
 fore, in our judgment, insufiicient. It should state the number, because any number' less than the 
 returned Member's majority would not, of course, defeat his election; and an investigation of any less 
 number would, therefore, be unnecessary. A general allegation of illegal votes may mean five or ten 
 or twenty or five hundred ; it is uncertain, and not particular. Nor would a subsequent averment that 
 the Illegal votes received, and the illegalities complained of, had changed the result, be sufficient This 
 point was expressly ruled in case of Lelar, sheriff of Pliiladelphia, in 1846. The courts say they will 
 require of the party complaining of illegal votes to state the number, for instance, thus: Twenty voted 
 under age; fifteen voted who were unnaturalized foreigners; ten who were nomesidents etc This 
 particularity the courts of Pennsylvania say they will require, because otherwise they would be con- 
 verted into a mere election board, for the purpose of counting disputed ballots. It is tme that in this 
 case they did not require the names, but Congress, in the case of Joseph B. Vamum, of Massachusetts 
 (see Contested Elections, p. 112), expressly ruled that the allegation that persons vote who were not 
 qualified to vote is not sufficiently certain, and that the names of the persons ol,jected to for want of 
 sufficient qualification must be set forth prior to the taking of the testimony. 
 
 Again in the case of Easton v. Scott, from Missouri (see Contested Elections, p. 272) it waa decided 
 that the party complaining of Ulegal votes must state the names and the particular disqualifications 
 Thw was also required in the case of Littell against Robbins, at the last Congress. It has always been 
 required in the English House of Commons. Such, we believe, is the usual and correct practice in all 
 cases of contested elections; and surely if Congress, in the absence of any law prescribing the mode of 
 taking testimony in such cases, has required parties to be thus particular, how can we be less so when 
 Congress by positive law declares they shall "specify particularly?" 
 
 822. The case of Wright v. Fiiller, continued. 
 
 The House, in judging on election, returns, and qualifications, 
 should, by reason of the functions delegated to the States, be governed 
 by certain State laws. 
 
 Discussion as to what constitutes a fatal irregularity in the conduct 
 of election officers. 
 
 The Elections Committee, in an unsustained report, held that a seat 
 should be declared vacant for a fraud which might have reversed the 
 result.
 
 1068 PEECEDENTS OP THE HOUSE OF REPRESENTATIVES. § 822 
 
 Not knowing who profited by certain decisive votes cast by disqual- 
 ified voters, the House hesitated to declare the seat vacant. 
 
 As to the conduct of the election officers and the fraudulent voting, the majority 
 lay down tlus rule of conduct : 
 
 Havin" disposed of this preliminary point, the committee proceeded to the examination of the law 
 and testimony involved in this case. In discharging the last duty, the committee considered that, 
 although the House of Representatives, by virtue of the fifth section of the first article of the Federal 
 Constitution, are made the judges of the election, returns, and qualifications of its Members, yet this 
 power is not plenary, but is subordinate to the second and fourth sections of the same article — the first of 
 these sections providing that the electors of the Members shall have the qualifications requisite for the 
 most numerous branch of the State legislature; the fourth section empowering and authorizing the 
 legislature in each State to prescribe the places, times, and manner of holding elections for Senators and 
 Representatives — such regulations being subject to alterations made by the Congress. 
 
 By force of these provisions, the House is compelled, when adjudicating in any matter affecting 
 the elections, returns, or qualifications of any of its Members, to make the law of the respective States 
 from which such Members may be returned its rule of action. 
 
 In relation to the conduct of election officers the majority found that at the 
 Danville precinct, where the vote was suspicious — 
 
 The evidence furnished the committee proves that the judge, Mr. Kitchen, elected by the people 
 to officiate in the particular capacity of judge, did, for a great portion of the time while the election wa.-* 
 going on, neglect his peculiar business and was engaged in discharging the duty of inspector. Not only 
 the oath but the duties of these officers are entirely different. The two inspectors are required to stand 
 at the window to receive votes, and whenever they may disagree respecting the qualifications of a voter 
 the judge is to decide between them. His duty is strictly that of an umpire. His oath carries no further 
 obligation with it. Usurping the duties of an inspector, he was, pro hac vice, an unsworn officer. If this 
 irregularity of conduct of the judge could be considered as resulting from ignorance or casual carelessness, 
 it might not demand the serious attention of the House, but tliis was not the case. 
 
 Each inspector is required to select one clerk, whose duties, as prescribed by law, are to keep the 
 list of voters as voting, and to record the reasons of persons voting on age, or such as are not found on 
 the alphabetical list, and as admitted by the inspectors, and who are bound by the obligations of an oath. 
 E. W. Concklin and B. Brown were selected to act in this capacity. Do we find them more regardful 
 of duty, more faithfully observant of the requirements of the law? The evidence is strong that one of 
 them, Concklin, while he delegated to another individual, an unsworn officer, a right to discharge his 
 duties, assumed for a portion of the time the office of inspector. It is proven that Concklin was engaged 
 in taking and counting out votes from the boxes — a duty which is imposed by the law exclusively upon 
 the judge and inspectors. 
 
 The assessor was also required by law to be present to give information as to 
 the right of persons to vote ; but at the Danville precinct the assessor laid aside his 
 register and acted for a time as distributer of tickets. 
 
 The majority therefore concluded that the action of the election officers was 
 fatally at variance with the requirements of law. 
 
 The minority contended that the acts of the election officers were not fatallj^ 
 illegal. The judge was sworn to "faithfully assist the inspectors," among his other 
 duties, and the minority concluded that this justified the acts of Judge Kitchen. 
 
 The minority contended that the proof of illegal voting was insufficient. The 
 majority showed that the total result at the Danville precinct, where contestant 
 received 32 votes and sitting Member 659, was suspicious when compared with 
 votes of previous elections. Furthermore, certain voters whose qualifications were 
 impeached refused to answer subpoenas and so defied investigation. On the whole, 
 the testimony satisfied the majority that frauds had been conm:iitted; but they
 
 § 823 GENEB-VL ELECTION CASES, 1850 TO 1860. 1069 
 
 could not satisfy themselves as to how many illegal votes the sitting Member received. 
 The sitting Member had been returned by a majority of 59 votes, and the committee 
 found enough unqualified voters to reverse the result if it could have been definitely 
 ascertained that all or a large portion of them had been cast for sitting Member. 
 Not being able to establish this positively, the conmiittee reported a resolution 
 declaring the seat vacant because the election at the Danville precinct had been 
 "irregularly and illegally conducted." 
 
 The case was considered in the House June 24, 26, and 28 and July 2.^ On the 
 latter day the whole subject was laid on the table, by a vote of yeas 87, nays 64. 
 
 So the sitting Member retained the seat. 
 
 823. The election case of Lane v. Gallegos, from the Territory of New 
 Mexico, in the Thirty-third Congress. 
 
 In the absence of fraud on the part of the voters, whose choice was in 
 doubt, the House overlooked irregularities on the part of the election 
 officers. 
 
 On February 24, 1854,^ the Committee on Elections reported in the case of 
 Lane r. Gallegos, of New Mexico, that there were undoubtedly great irregularities 
 in the returns, but no greater than might be expected in the recently organized 
 Territory, where the people generally did not understand the institutions or language 
 of the country. It did not appear that in any single instance was fraud committed 
 or attempted, or that any return from any of the precincts was corruptl)^ made. 
 
 The contestant alleged gross frauds in the voting and that returns had been 
 changed in the office of the secretary. 
 
 The committee found that the votes of certain Indians had been properly 
 excluded, since they were not qualified voters according to the laws of the Territory. 
 There was no proof showing material fraud in the voting. 
 
 The probate judge of San Miguel County, in returning the abstract of votes of 
 certain precincts to the office of the secretary of the Territory, had failed to accom- 
 pany his return with the poll book. But subsequently, and within the limit of time 
 prescribed by law, the lists of voters were furnished. 
 
 The committee concluded: 
 
 Neither in these precincts of San Miguel nor in those of any other county from which the returns 
 are alleged by the contestant to be informal and contrary to law have the committee been able to per- 
 ceive so substantial a defect as to justify their total exclusion. In the absence of all attempt at fraud on 
 the part of the voters it would be manifestly unjust to deprive them of the effect of their suffrages for 
 a slight failure upon the part of the officers conducting the election fully to comply with all the forms of 
 law when enough is clearly shown to determine the wishes of the people. 
 
 Therefore the committee arrived at the unanimous opinion that Mr. Gallegos 
 was entitled to the seat as Delegate from New Mexico. 
 The House concurred in the report of the committee. 
 
 824. The Illinois election case of Archer v. Allen in the Thirty-fourth 
 Congress. 
 
 Opinion from a divided committee as to the degree of definiteness of 
 specifications required in a notice of contest. 
 
 'Journal, pp. 840, 845, 849, 852, 857-859; Globe, pp. 1613, 1627, 1655. 
 
 ^ First session Thirty-third Congress, 1 Bartlett, p. 104; Rowell's Digest, p. 140.
 
 1070 PKECEDENTS OF THE HOUSE OF KEPRESENTATIVES. § 824 
 
 A notice as to taking testimony having been delayed in delivery so 
 that one of the parties could not attend, the committee ordered the testi- 
 mony taken anew. 
 
 When a Member was returned by a majority of 1, which was rendered 
 uncertain by a recount, the House declared the seat vacant. 
 
 As to the effect of an unoflS.cial recount of votes on the return as 
 originally made. 
 
 A seat being declared vacant, the House directed the Speaker to notify 
 the executive of the State. 
 
 The case of Archer v. Allen, from Illinois, in 1856,' involved four questions: 
 The sufficiency of the notice of contest under the law, the sufficiency of a notice 
 of the taking of certain testimony, the legality of a recount of votes in a certain 
 precinct, and the legality of three votes. 
 
 The contestant had notified the sitting Member of his intention to contest on 
 the following grounds : 
 
 That the returns made by the returning officers, as officially announced, are incorrect, and that the 
 poll books of the several counties in this district show that I received a majority of the legal votes polled 
 in the said district for the said office and am entitled to the certificate of election therefrom. 
 
 The majority of the committee concluded this notice was sufficient: 
 
 Your committee are clearly of opinion that the first specification is sufficiently certain and definite 
 to authorize an investigation of the correctness of the returns made by the returning officers of any pre- 
 cinct in the district. The notice embraced all the precincts in general terms, and was as good a com- 
 pliance with the law of 1851 - and as serviceable to the sitting Member as if every precinct in the district 
 had been specifically named. The law was substantially complied with. Besides, it does not appear, 
 and it has not been suggested, that injury or inconvenience has resulted to the sitting Member from any 
 want of certainty in the notice. 
 
 The minority contended that the notice fell far short of the requirement of 
 law, that the contestant should "specify particularly the ground upon which he 
 relies in the contest," and declared that it could hardly have been more vague and 
 indefinite. 
 
 The second consideration related to the taking of testimony as to the return 
 of Livingston precinct, on which depended the seat. The sitting Member objected 
 that the notice given him was not due or legal. The law required ten days' notice; 
 but it was not until February 28 that the notice was served on him in Washington, 
 and the time for taking the testimony was designated as March 9, and the place 
 the State of Illinois. The minority of the committee contended that the time was 
 but nine days, and the distance too great to allow of attendance. Therefore the 
 testimony was ex parte and should not be allowed to impeach the Livingston vote 
 as returned originally. The majority of the committee contended that the notice 
 which was dated February 20, and delayed by no fault of contestant, was sufficient 
 imder the rule of law that the day upon which the notice was given might be counted 
 under certain circumstances, and on the further ground that the law relating to 
 
 ' First session Thirty-fourth Congress, 1 Bartlett, p. 169; Rowell's Digest, p. 142; House Reports 
 Nos. 8 and 167. 
 
 ^ 9 Stat. L., p. 568. The prior laws on this subject were Stat. 1798, chap. 8, and Stat. 1800, chap. 
 28, which extended the former act for four years.
 
 § 825 GENERAL ELECTION CASES, 1850 TO 1860. 107 1 
 
 contests was directorj^ and cumulative, having for an object the protection and 
 not the defeat of contesting parties and the people. But the committee decided 
 to have the depositions retaken at a time and place where the sitting Member 
 could be present and cross-examine. The sitting Member availed himself of this 
 privilege, although he had expressly denied that the depositions, as originally taken, 
 contained anything that could warrant the committee in setting aside the official 
 returns. 
 
 At the election held November 7, 1854, the returns showed for the sitting 
 Member a majority of one vote. The return of Li^-ingston precinct was 100 votes 
 for William B. Archer and 47 votes for James C. Allen. 
 
 But on March 2, 1S55, the election officers of Livingston made affidavit that a 
 recount of the votes — which had been put in a locked box and kept by one of the 
 judges — showed 102 votes for Mr. Archer and 46 votes for Mr. Allen. 
 
 The majority <if the committee were satisfied with the correctness of the recount, 
 the three original ballots which occasioned the discrepancy having been exhibited 
 to the committee, although they were lost before the subject came up in the House. 
 The minority held that the correctness of the recount was not proven. There was 
 no law requiring the ballots to be kept after the first count and return. The testi- 
 mony was not conclusive that other persons than the judge keeping the box had 
 not had access to it. 
 
 There was also a question as to three votes, two alleged to have been cast by 
 minors and one by a nonresident. The testimony as to the two alleged minors was 
 not sufficient to determine for whom they cast their ballots. The alleged nonresi- 
 dent testified that he voted for contestant, but the majority of the committee 
 declined to rule that he was ineligible as a voter, as it was "to be presumed that 
 the judges of election did their duty and received no illegal votes." 
 
 Therefore the majority reported the following resolution: 
 
 Resolved. That Jamt's C. Allen was not elected and is not entitled U> a seat in this House. 
 Resolved, That William B. Archer was elected and is entitled to a seat in this House. 
 
 On July 16, 17, and 18 ' the report was considered in the House, and after long 
 debate the first resolution was agreed to, yeas 94, nays 90. 
 
 By the second resolution, declaring Mr. Archer elected, the yeas were 89 and 
 the nays 91. So the contestant was not seated, although a persistent effort was 
 made to reconsider the vote. 
 
 Then the House agreed to the following: 
 
 Whereas this House having declared that neither James C. .\llen nor William B. Archer is entitled 
 to a seat on this floor from the Seventh Congressional district of Illinois; 
 
 Be it resolved, That in the judgment of this House, a vacancy exists in said district, and that the 
 election which was contested in this House therefrom be referred back to the people of the district, 
 and that the Speaker of this House notify the governor of that State of this resolution of the House. 
 
 825. The first election case of Reader v. Whitfield, from the Territory 
 of Kansas, in the Thirty-fourth Congress. 
 
 Instance wherein an election contest was instituted by memorial 
 after the enactment of the law of 1851. 
 
 » Journal, pp. 1221, 1223, 1226-1234; Globe, pp. 1646, 1G56; Appendix, pp.923-936.
 
 j^Q72 PRECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 8'25 
 
 In 1856 the idea was advanced that the House was not bound to pro- 
 ceed in an election case according to the law of 1851. 
 
 On February 2, 1856, the House elected a Speaker after a contest which had 
 begun December 3, 1855. 
 
 On February 4, 1856,' after the oath had been administered to the Members, 
 the Delegates were called. When the name of John W. Whitfield, of Kansas, was 
 called, Mr. Lewis D. Campbell, of Ohio, expressed the belief that the circumstances 
 surrounding the election of Mr. Whitfield were sufficient to cause the House to de- 
 part from its usual custom in admitting Delegates on prima facie evidence; but as 
 the House had been long delayed in organizing, and as a Delegate had no vote, he 
 would not object to the swearing in of Mr. Whitfield. The latter then took the oath. 
 
 On February 14' the memorial of A. H. Reeder, contesting Mr. Whitfield's 
 seat was presented to the House. The grounds of contest were as follows : 
 
 That the election of October 1, 1855, at which Mr. \Miitfield was returned as elected, was void, 
 inasmuch as the law under which it was held had been passed by a legislature elected through the 
 participation of superior numbers of nonresidents of the Territory. 
 
 That the law had been passed by the legislature sitting at an unauthorized place, where no valid 
 legislation could be had. 
 
 That the election for Delegate had not been conducted according to the forms of that pretended 
 law, even; and that many illegal votes were polled by nonresidents and others. The memorialist 
 excused himself from further specifications on this objection because he could not obtain the necessary 
 information from the executive offices of the Territory. 
 
 The memorialist fiuther claimed that he was elected Delegate by a large majority of the legal 
 voters at an election held October 9, 1855. 
 
 This memorial was referred, and on March 5, 1856,^ the Committee on Elections 
 reported. The committee in this report did not go into the merits of the case but 
 asked the adoption of the following resolution : 
 
 Resolved, That the Committee on Elections, in the contested election case from the Territory of 
 Kansas, be, and are hereby, empowered to send for persons and papers, and to examine witnesses upon 
 oath or affirmation. 
 
 It appeared from the memorial that Mr. Reeder did not claim the seat; but 
 this was not seriously urged as an objection to proceedings by the House, which was 
 conceded to have undoubted authority to examine its owti constituent parts. The 
 majority of the House also considered that common rumor, as well as the declara- 
 tions of the memorialist, furnished abundant reasons for the investigation. 
 
 A preliminary question of importance was involved in the fact that the pro- 
 ceedings by the contestant were not in accordance with the law of 1851 governing 
 procedm-e in cases of contested elections. That law, while in terms applying to 
 States only, was said to apply by implication also to contested elections from the 
 Territories. But it was argued,^ apparently with prevailing effect, that even if it 
 did apply to Territorial contests, the law of 1851 could not prevent the House, 
 imder the Constitution, from passing such orders and resolutions to procure testi- 
 mony whether by witnesses or deposition, as it might think proper. 
 
 ' First session Thirty-fourth Congress, Globe, p. 353; Journal, p. 448. 
 
 ^Journal, p. 533; House Report No. 3, p. 26. 
 
 ' House Report No. 3. 
 
 ■•By Mr. Israel Washburn, of Maine, Globe, p. 454.
 
 § 826 GEXERAL ELECTION CASES, 1850 TO 1860. 1073 
 
 The right of the House to send for persons and papers in such a case was not 
 seriously questioned, the precedents in the New Jersey contest, and earUer cases in 
 the First and Second Congresses being cited. 
 
 826. The first case of Beeder v. Whitfield, continued. 
 
 The House decided that it might investigate all matters pertaining to 
 the election of a Delegate, including the constitution of the legislature 
 which provided for the election. 
 
 Form of resolution providing for the Kansas investigation of 1856. 
 
 Discussion of the nature of the office of Delegate. 
 
 A Territorial legislature being chosen under duress of armed invaders 
 the House unseated the Delegate chosen under a law passed by that legis- 
 lature. ° 
 
 The main point not being a question as to which of the two parties to the contest 
 received the most votes, but a question as to the validity of the legislative act pro- 
 viding for the election, it was contended that Mr. Reeder was estopped from raising 
 this question because he was governor of tlie Territorv at the time the legislature 
 was elected and assembled, and issued to the Members their certificates of election 
 and treated the legislature, when assembled, as a la\vful body. The majority of the 
 committee contended that the doctrine of estoppel was applicable only to mat- 
 ters of pnvate right, and an official acting in a public capacity could not by the per- 
 formance of his duty, thereby estop himself from any other duty which he mi-ht 
 afterwards owe to the pubhc as a private citizen, or in another and different official 
 capacit}'. 
 
 These questions were incidental to the main controversy, as to the right of the 
 House to examine into the legaUty of the existence of the Territorial legislature 
 wluch had passed the law. in accordance with which Mr. 'UTiitfield had received the 
 election and return. 
 
 It was urged with great vigor » that the House might not make this inquiry 
 since the House in this case was in the position of a court, and while a court might 
 mquu-e mto the vahdity of a statute, it might not mquire into the legality of the 
 election of the members of the legislatiu-e that passed the statute. That question 
 belonged to the two houses of the legislature itself, and their decision when made 
 was considered the judgment of a court of competent jurisdiction, which no other 
 court would inquire into. It was the inherent right of the Kansas legislature to 
 inquire into the election, returns, and qualifications of its own members, andhavinc- 
 done so the National House of Representatives might not examine that subject" 
 Ihis position was fortified by numerous citations from the law ^vriters of England 
 
 In support of the committee's proposition it was argued ' that it did not follow 
 that this House was bound by the limitations of a court. A judicial tribunal mi-ht 
 not examine into the elections, quaUfications, and returns of Members of this House 
 but this House did decide on those questions. It di d not follow, therefore, that this 
 
 TV.! ^J \ Alexander H. Stephens, of Georgia, and others. See Appendix of Globe, first session 
 1 hirty-fourth Congress, pp. 120, 121, 179. 
 
 ; By Mr. Henry Winter Davis, of Maryland. (Appendix of Globe, p. 227. ) Mr. Davis occupied 
 a middle ground, not going to the whole extent of the committee's contention. 
 5904 — vol, i_07 68
 
 X074 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 826 
 
 House might not decide a question because the courts could not. The question before 
 the House was not a judicial question, but a political question. This distinction 
 cleared away the difficulties over this branch of the question. This House having 
 the right to examine into the election of its Members,' had the power to look into 
 every fact upon which the election depended. There was no object in citing authori- 
 ties as to the right of a legislature to judge of the election, returns, and qualifications 
 of its members, because there was a prior question first to be decided, viz, whether 
 or not there was a legislature to j udge . Even in the case of a State one of the branches 
 of Congress had passed upon a status of the legislature in the contested election 
 case in the Senate of Robbins and Potter.^ But the Territorial legislature of Kansas 
 did not stand on any such basis. Its authority was limited by the terms of the 
 oro-anic law passed by Congress — the Kansas and Nebraska act. That legislature 
 was not only a usurping body, elected by violence, but its legislation in regard to 
 the election of a Delegate to Congress violated the organic act, notably in that it 
 presumed to delegate powers which it might not delegate. 
 
 The question of the legaUty of the removal of the legislatm'e to another place, 
 as well as the validity of the election of October 9, when Mr. Reeder was chosen, 
 did not figure essentially in the report or debate. 
 
 The preliminary report of the committee was debated on February 19, 20, 
 March 6, 7, 14, 17, 18, and 19.^ On February 20 the House agreed to the resolution 
 by a vote of 71 yeas to 69 nays, but at once reconsidered it by a vote of 75 yeas to 67 
 nays. The resolution was then recommitted, with instruction to report the reason 
 and grounds for which the authority to send for persons and papers was asked. On 
 March 6 the House took up the subject again, the committee having reported the 
 reasons and the same resolution. 
 
 Several propositions were then made as substitutes for the resolution of the 
 committee, and finaUy, on March 19,* the House, by a vote of 102 yeas to 93 nays, 
 adopted the following resolution: 
 
 Resolved, That a committee of three of the Members of this House, to be appointed by the Speaker, 
 shall proceed to inquire into and collect evidence in regard to the troubles in Kansas generally, and par- 
 ticularly in regard to any fraud or force attempted or practiced in reference to any of the elections which 
 have taken place in said Territory, either under the law organizing said Territory or under any pretended 
 law which may be alleged to have taken effect therein since; that they shall fully investigate and take 
 proof of all violent and tumultuous proceedings in said Territorj' at any time since the passage of the 
 Kansas-Nebraska act, whether engaged in by residents of said Territory or by any person or persons from 
 elsewhere going into said Territory and doing, or encouraging others to do, any act of violence or public 
 disturbance against the laws of the United States or the rights, peace, and safety of the residents of said 
 Territory; and for that purpose said committee shall have full power to send for and examine, and take 
 copies of all such papers, public records, and proceedings, as in their judgment wiU be useful in the 
 premises; and also to send for persons and examine them on oath or affirmation as to matters within their 
 knowledge touching the matters of said investigation ; and said committee, by their chairman, shall have 
 power to administer all necessary oaths or affirmations connected with their aforesaid duties. 
 
 ' Argument of Mr. Israel Washburn, of Maine. Appendix of Globe, p. 191. 
 
 2 Arguments of Messrs. J. A. Bingham, of Ohio, and Washburn, of Maine. Appendix of Globe, 
 pp. 126, 192. 
 
 ' Journal, pp. 561, 568, 64G, 650, 678, 685, 691, 693; Globe, pp. 451, 475, Oil, 612, 659, 674, 677, 690; 
 Appendix, pp. 118, 122, 166, 179, 189, 227. 
 
 Mournal, p. 698.
 
 § 826 GENERAL ELECTION CASES, 1850 TO 1860. 1075 
 
 Resolved, further. That said committee may hold their investigations at such places and times as to 
 them may seem advisable, and that they have leave of absence from the duties of this House until they 
 shall have completed such investigation; that they be authorized to employ one or more clerks, and one 
 or more assistant sera;eants-at-arms, to aid them in their investigations; and may administer to them an 
 oath or affirmation faithfully to perform the duties assigned to them, respectively, and to keep secret all 
 matters which may come to their knowledge touching such investigation as said committee shall direct, 
 imtil the report of the same shall be submitted to this House; and said committee may discharge any 
 such clerk or assistant sergeant-at-arnis for neglect of duty or disregard of instructions in the premises, 
 and employ others under like regulations. 
 
 Resolved, further. That if any person shall in any manner obstruct or hinder said committee, or 
 attempt so to do, in their said investigation, or shall refuse to attend on said committee, and to give evi- 
 dence when summoned for that purpose, or shall refuse to produce any paper, book, public record, or 
 proceeding in their possession or control to said committee when so required, or shall make any dis- 
 turbance where said committee is holding their sittings, said committee may, if they see fit, cause any 
 and every such person to be arrested by said assistant sergeant-at-arms and brought before this House to 
 be dealt with as for a contempt. 
 
 Resolved, further. That for the purpose of defraying the expenses of said commission there be, and 
 hereby is, appropriated the sum of $10,000, to be paid out of the contingent fund of this House. 
 
 Resolved, further, That the President of the United States be, and is hereby, requested to furnish to 
 said committee, should they be met with any serious opposition by bodies of lawless men, in the discharge 
 of their duties aforesaid, such aid from any military force as may at the time be convenient to them, as 
 may be necessary to remove such opposition and enable said committee without molestation to proceed 
 with their labors. 
 
 Resolved, further. That when said committee shall have completed said investigation they report 
 all the evidence so collected to this House. 
 
 Messrs. John Sherman, of Ohio; WilUam A. Howard, of Michigan; and Mordecai 
 OHver, of Missouri, were appointed on this committee, and conducted the investiga- 
 tions as ordered. On July 2, 1856,' the report was referred by the House to the 
 Committee on Elections. 
 
 On July 24 - the Committee on Elections reported.^ The majority found that 
 each election in Kansas held imder the organic or alleged Territorial law had been 
 carried on by organized invasion from Missouri, which had prevented the people of 
 Kansas from exercising their rights; that the alleged Territorial legislature was 
 illegally constituted, and its enactments null and void; that the election of Mr. 
 Whitfield was not in pursuance of valid law, and should be regarded only as the 
 expression of the choice of those resident citizens who voted for him; that the 
 election of ilr. Reeder was not held in pursuance of law, and was the expression only 
 of resident citizens who voted for him; and that Mr. Reeder received a greater 
 number of the votes of resident citizens than did Mr. Whitfield. 
 
 Therefore the majority reported resolutions to unseat Mr. Whitfield and seat 
 Mr. Reeder. 
 
 As to the propriety of seating Mr. Whitfield the majority say: 
 
 The office of a Delegate from a Territory is not created by the Constitution. Such Delegates are 
 not Members of the House, and have no votes in its deliberations. They are received as a matter of 
 favor — as organs through whom may be communicated the opinions and wishes of the people of the Ter- 
 ritories. It is competent for the House — and this power has been often exercised — to admit private 
 parties to be heard before it by counsel. It must be equally competent for the House, at its discretion, 
 to admit any person to speak in behalf of the people of the Territories. It may, if it sees fit, admit more 
 than one such person from each Territory. Under ordinary circumstances, no case calling for the exer- 
 
 ' Journal, p. 1148. -Journal, p. 127.5. = House Report No. 275.
 
 1076 PRECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 827 
 
 cise of this discretionary power will arise. In all the laws creating Territories provision is made for the 
 election of Delegates to Congress; and the people of the Territories, having the opportunity to be heard 
 through such Delegates, and by memorial and petition under the general provisions of the Constitution, 
 coiUd not ask to be heard through any other agency. In the present case, however, the people of the 
 Territory of Kansas have been deprived of the power to make a strictly legal election of a Delegate by an 
 invasion from Missouri, which subverted their Territorial governmeni and annihilated its legislative 
 power. To deny to Kansas the right to be heard through the choice of its resident citizens, merely 
 because that choice was manifested outside of legal forms, and necessarily so, because the lawmaking 
 power was destroyed by foreign violence, is to deny to Kansas the right to be heard at all on the floor of 
 the House. 
 
 The minority contended, in a report apparently drawn by Mr. Alexander H. 
 Stephens, of Georgia, that the question was the same as before the report of the 
 investigating committee, that all question as to the validity of the law passed by 
 the Kansas legislature was res adjudicata according to the well-settled principles 
 of all our representative institutions. The minority also called attention to a letter 
 alleged to have been written by the contestant and laid before the House in the 
 report of the investigating committee, wherein he admitted the legality of the legis- 
 lature. The minority denied the charges of outrages in Kansas, while at the same 
 time denying the power of the House to give them weight in this case had there been 
 such. 
 
 On July 31 and August 1' the report of the committee was debated. In the 
 covu-se of this debate, by unanimous consent, a statement of the contestant was 
 read by the Clerk at the desk.^ On August 1, by a vote of yeas 110, nays 92, the 
 House agreed to the resolution declaring Mr. Whitfield not entitled to the seat. 
 
 On the resolution to admit Mr. Reeder to a seat there were yeas 88, nays 113. 
 So the seat became vacant. 
 
 827. The second election case of Reeder v. Whitfield, from the Terri- 
 tory of Kansas, in the Thirty-fourth Congress. 
 
 The House declined to reverse its conclusion that a Delegate, elected in 
 pursuance of a law enacted by an illegally constituted legislature, should 
 not retain his seat. 
 
 When the organic law requires an act of the legislature to fijx the 
 times, etc., of a Territorial election, an election called by the governor is 
 not valid. 
 
 A Territorial legislature of impeached status having by a law vir- 
 tually disfranchised qualified voters, the Elections Committee considered 
 the status of the returned Delegate adversely affected. 
 
 The integrity of the laws governing the election being impeached, the 
 committee recommended that the seat be declared vacant. 
 
 On February 12, 1857,^ the Committee on Elections reported in the contested 
 election case of Reeder v. Whitfield, from Kansas. This was a second contest. At 
 the first session of this Congress Mr. Whitfield had been unseated.* At the third 
 session Mr. Whitfield again appeared with the certificate of the governor of the 
 
 'Journal, pp. 1333, 1337-1340; Globe, pp. 1758, 1842, 1859, 1863, 1873; Appendix, p. 1114. 
 = Journal, p. 1333. 
 
 ^ Third session Thirty-fourth Congress, 1 Bartlett, p. 216; Rowell's Digest, p. 149; House Report 
 No. 186. 
 
 * See Section 826 of this volume. 
 
 f
 
 § 827 GEXERAL ELECTION CASES, 1850 TO 1S60. 1077 
 
 Territory, and, after opposition, was sworn in on the prima facie evidence of the 
 certificate.' 
 
 In the report on this second contest the committee say: 
 
 The sitting Delegate * * » bases his claim to his seat upon an election held in October, 1856. 
 in purstiance of a proclamation fixing the day of the election, issued by the governor » » * and 
 which said election was conducted according to ''An act to regulate elections," enacted in 1855, by a 
 body of men claiming to be the legislature of Kansas, and which derived its existence from an election 
 held in that Territorj' on March 30, 1855. It appears from the report of the special committee, appointed 
 by this House during its first session, to investigate the affairs of Kansas, that the Territorial legislature, 
 claiming to have been chosen at the election of March 30, 1855, '"was an illegally constituted body, and 
 had no power to pass valid laws, and their enactments are, therefore, null and void." In this con- 
 clusion of the special committee this House has manifested its own concurrence by many decisions and 
 on many occasions. * * * It is a fatal objection, therefore, to the claim of the sitting Delegate to 
 have been elected in pursuance of law, that he bases it upon an election held under the direction of 
 officers deriving their authority from an usurping legislative body, and regulated by laws emanating 
 from the same vicious sources. 
 
 The minority of the committee denied that these assertions of the majority 
 had been proven, and maintained that the legislature in question was legal, elected 
 by a majority of the actual bona fide settlers or residents of the Territory. 
 
 The majority of the committee further contended that there was another fatal 
 objection to the claim of the sitting Delegate to the seat. The organic act of the 
 TerritorA- — the Kansas-Nebraska act of 1854 — provided that the first election for 
 a Delegate to Congress should be held in accordance with the precept of the gov- 
 ernor, but that "at all subsequent elections the times, places, and manner of 
 holding the elections shall be prescribed by law." Therefore the governor of Kan- 
 sas was not authorized by the organic law to issue the proclamation for the election 
 of October, at which the sitting Delegate claimed to have been elected. Neither 
 was there to be found such authority in the law enacted by the so-called legislature. 
 The minority did not assent to this proposition, contending that the organic act 
 secured to the people of the Territory the right to representation, and they "should 
 not be held to have lost this high privilege merely because the Territorial legislature 
 omitted to pass an act prescribing the 'times, places, and manner of holding the 
 elections.' " The unseating of the Delegate at the preceding session had left a 
 vacancy, and to carr\' out the spirit of the organic law and keep a Delegate in Con- 
 gress it resulted, horn the very necessity of the case, that it was the duty of the 
 governor to issue the proclamation for the election. Such a construction of the 
 organic act as the majority contended for would have left the Territory without 
 representation had the legislature failed to pass a law prescribing "the times, 
 places, and manner of holding the elections." The minority also claimed sanction 
 for the act of the governor in the law of 1817, which provided that every Territor}^ 
 in which a temporan.' government had been established should have the right to 
 send a Delegate to Congress, such Delegate to " be elected every second year, for the 
 same term of two years for which Members of the House of Representatives of the 
 United States are elected." 
 
 The majority of the committee say that, while the sitting Delegate had no 
 legal claim to the seat, he might as a matter of "indulgence and discretion" be 
 
 ' See Section 529 of this volume.
 
 1078 PRECEDENTS OF THE HOUSE OF KEPBESENTATIVES. § 828 
 
 allowed to retain the seat if it sufficiently appeared that his election was in fact 
 concurred in by a majority of those who were or ought to be the leo;al voters of 
 Kansas. But the committee found that the act of the "pretended legislature" 
 under which the election was held had certain provisions in regard to the choice 
 of election officers and the qualifications of voters that virtually disfranchised large 
 numbers of the citizens of Kansas and permitted reckless nonresidents to exercise 
 the suffrage. The majority were of the opinion that several hundred persons were 
 restrained from voting by what was in effect a "test oath." 
 
 The majority stated they were not prepared to recommend that the contestant, 
 Mr. Reeder, be admitted to the seat, it not being contended that he had received 
 the greater number of votes cast at the election in question. 
 
 The majority of the committee recommended the following resolution: 
 
 Resolved, That John W. Whitfield is not entitled to a seat in this House as a delegate from the 
 Territory of Kansas. 
 
 On February 21 * the resolution was taken up and a motion to lay it on the 
 table was agreed to, yeas 96, nays 87. An attempt was at once made to reconsider 
 this vote, but the motion to reconsider was laid on the table, yeas 99, nays 94. 
 From the slight debate it appears that there was a disposition to table the subject 
 in order to attend to other business in the closing hours of the session; and that the 
 vote did not strictly involve the merits of the question. 
 
 828. The Maine election case of Milliken v. Fuller in the Thirty- 
 fourth Congress. 
 
 The returns of election officers de facto, acting in good faith, were 
 counted by the House. 
 
 Instance wherein returns were held valid although there were serious 
 irregularities on the part of the returning officers. 
 
 On April 10, 1856,^ the Committee on Elections reported in the case of Milliken 
 V. Fuller, of Maine, recommending the following resolution, which was agreed to 
 by the House without debate or division: 
 
 Resolved, That Thomas J. D. Fuller is elected to, and rightfully entitled to, his seat in the Thirty- 
 fourth Congress. 
 
 The report of the committee saj^s that they did not investigate alleged defects 
 in ballots — 
 
 for the reason that, whether so allowed or not, the result would not thereby be changed, unless — 
 
 First. That votes from "plantations organized for election purposes only," from which lists of the 
 
 voters were not returned to the office of the secretary of state, as is contended the law required as a 
 
 condition to being allowed, be rejected; or, 
 
 Second. That the votes of Hancock plantation be rejected, because the officers who held the election 
 
 were chosen at a meeting held in the month of April, when, as the contestant contends, the law of the 
 
 State required that it should have been held in the month of March. 
 
 There is no controversy about the facts in cither case, and although there was difference of opinion 
 
 in the committee, whether the election of municipal officers in the Hancock plantation was held at a 
 
 time permitted by the law of the State, yet the committee is unanimously of the opinion that the persons 
 
 ' Journal, p. 509; Globe, p. 798. 
 
 ^ First session Thirty-fourth Congress, 1 Bartlett, p. 176; Rowell's Digest, p. 143; House Report 
 No 44; Journal, p. 903.
 
 § 829 GENERAL ELECTION CASES, 1850 TO 1860. 1079 
 
 officiating were officers de facto, acting in good faith; and, as no fraud is alleged, the votes from the 
 district were rightfully counted for the sitting member. 
 
 In regard to the reliu-ns from •plantations organizc<i for election purposes only," the members 
 of the committee were, as were the governor and council of the State of Maine before them, divided in 
 opinion, and are not prepared to say what conclusion they would have come to in the case, had this 
 been an original question; but, inasmuch as contemporaneous constructions by the State canvassers 
 have recognized the returns from these plantations, and that they have received and counted them as 
 valid, notwithstanding the list of voters was not returned with the number of votes cast; therefore, 
 under the circumstances, the committee do not feel authorized, whatever the opinion of some of its 
 members may be of the effect of a noncompliance on the part of the plantation officers with the plain 
 requirements of the law, to exclude the votes of these plantations. 
 
 829. The election case of Bennet v. Chapman, from the Territory of 
 Nebraska, in the Thirty-fourth Congress. 
 
 Discussion of the extent of irregularities in returns required to justify 
 their rejection. 
 
 Discussion as to residence within the limits of the constituency as a 
 qualification for voters. 
 
 Instance wherein the report of the Elections Committee was overruled 
 by the House. 
 
 On April 18, 1856,' the Committee on Elections reported in the case of Bennet 
 V. Chapman, from the Territory of Nebraska. This case involved two varieties 
 of question: One as to the returns, and the other as to the qualifications of certain 
 voters. 
 
 A count of all the votes cast at the election gave the contestant a plurality of 
 13 votes. But the Territorial canvassers and governor rejected the returns from 
 half the counties of the Territory, affecting nearly half of the total vote. As a 
 result of this action, a plurality resulted for the sitting Member. 
 
 The returns were rejected because they were not made in accordance vdth the 
 Territorial law. The majority of the committee considered that these variations 
 were not sufficient to cause the rejection of the returns, in the absence of anything 
 impeacliing the integrity of the vote. The minority contended that the deviations 
 from the requirements of the statutes were sufficient to make the returns fatally 
 defective. 
 
 The deviations may be described as follows: 
 
 In Otoe County the poll books were forwarded to the office of the secretary of 
 the Territory instead of being kept in the office of the county register, as the law 
 required, there to be canvassed by the probate judge and three assistants. An 
 abstract of this can%'ass should have been certified and sent by the county register 
 to the secretary of the Territory. The majority considered these provisions merely 
 directory, and that the failure to comply with them should not affect the Otoe 
 return. The minority on the other hand deemed the canvass by the probate judge 
 and the certification of the abstract of essential importance. The actual returns 
 sent to the office of the Territorial secretary were signed by persons purporting to 
 have acted as judges of election and clerks of election in Otoe County; but there 
 was nothing accompanying the return to show that they had authority so to act. 
 
 ' First session Thirty-fourth Congress, 1 Bartlett, p. 204; Rowell's Digest, p. 147; House Report 
 No. 65.
 
 1080 PRECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 829 
 
 In Wasliington County the abstract of the canvass was certified by the register; 
 and the register in making out the certificate certified that no poll books were returned 
 from two of the three precincts, the law requiring the poll book to be sent to the 
 county clerk. The majority contended that the certified abstract was all the register 
 was required to send, and that the certification as to the poll books, being outside of 
 his duties, should be rejected. The probate judge might have refused to make the 
 abstract without the poll books; but that abstract being made, it was the duty of 
 the register to certify it. Proof of the failure to return the poll books should have 
 been made in some other way than by the certificate of the county- register. The 
 majority did not consider this failure to send the poll books with the precinct return 
 sufiicient reason for disfranchising a whole countj^ The minority contended that 
 the Washington County returns had not been duly authenticated according to law, 
 and that they were properly rejected by the Territorial canvassers. The minority 
 claimed that the abstract also was made out and certified by the register and not by 
 the judge of probate, as required by law. Also it was held that the omission to 
 return the poll books was fatal to the authenticity of the canvass. 
 
 As to Richardson County, the majority and minority of the committee do not 
 seem to lay stress on the same facts. The minority find from the evidence that at 
 two of the three voting places the election was conducted without legally appointed 
 officers. The minority, referring to the precedent of Jackson v. Wayne, contended 
 that the elections at those precincts were illegal and void. The majority of the 
 committee do not meet this point in their report, but contend that the entire vote of 
 the county should have been counted by the Territorial canvassers, instead of being 
 rejected. ■ 
 
 In this county, moreover, there was the further objection that about twenty 
 illegal votes were cast by certain persons residing on an Indian reservation known as 
 the "Half-breed tract." It was agreed that these votes were cast for the contestant. 
 The majority considered that the testimony left it to be inferred that these votes 
 were not counted for the contestant; but held that if they were so counted it was 
 done properly. The governor had excluded them from the census, but this could 
 not affect their right of suffrage, which was held by the law of the land. It was also 
 alleged that they were trespassers on Indian lands, but this also could not interfere 
 with their right of suffrage. Doubts as to whether they were in any election precinct 
 and as to whether they were within the limits of Nebraska did not appeal so strongly 
 to the majority as to the minority of the committee. The minority also laid stress 
 on the fact that the people themselves did not claim to be within the civil jurisdiction 
 of the Territory, and refused to pay taxes. The minority felt sure the votes were 
 counted for contestant. 
 
 It appeared that if all the votes returned to the ofiice of the secretary of the 
 Territory were counted the contestant would be returned, but if from this total the 
 votes from "Half-breed strip," about 20 in number, should be deducted the plurality 
 would be left with the sitting Member. 
 
 The rejection of all the returns from the counties impeached also left the plurality 
 for the sitting Member. 
 
 The majority reported resolutions declaring Mr. Chapman not entitled to the 
 seat, and seating the contestant.
 
 § 830 GENERAL ELECTION CASES, 1850 TO 1860. 1081 
 
 The report was considered on July 21 and 22,' and after debate the resolution 
 declaring Mr. Chapman not entitled to the seat was disagreed to — yeas 63, nays 69. 
 
 On July 23 the second resolution for seating the contestant was laid on the table 
 without division. 
 
 So the House sustained the contention of the minority of the conunittee. 
 
 830. The election case of Otero v. Gallegos, from the Territory of New 
 Mexico, in the Thirty-fourth Congress. 
 
 The notice of contest need not give the names of voters objected to for 
 qualifications. 
 
 The presence of names on a list of foreign citizens enrolled under 
 authority of a treaty was held prima facie evidence of disqualification for 
 voting. 
 
 The disqualification of certain voters being shown prima facie, the 
 burden of proof was thrown on the party claiming the votes. 
 
 On May 10, 1856,- the Committee on Elections reported on the case of Otero v. 
 Gallegos, from New Mexico. This case involved the following points: That the 
 notice of contest was defective; that certain persons who voted for the sitting 
 Delegate were not qualified; that certain votes should be counted in spite of the 
 misconduct of election officers, and that certain ballots should be impeached on 
 tesitmony of the voters. 
 
 As to the first point, the objection to the sufficiency of the notice, the sitting 
 Delegate contended that notice of impeachment of votes should be accompanied by 
 the names of the particular voters intended to be impeached. The conunittee over- 
 ruled the objection, holding that the notice was sufficient to permit the taking of 
 the testimony, and that the sitting Delegate should have entered his objection at 
 the time of taking the depositions. 
 
 The objection as to the qualification of voters related to certain inhabitants of 
 the Territory who, under the terms of the treaty with Mexico, had elected to remain 
 citizens of Mexico, and were expressly disqualified from voting under the law of 
 New Mexico. The number of these disqualified persons alleged to have partici- 
 pated in the election for the sitting Delegate was more than enough to account for 
 the majority of 99 votes by which he was returned. The law of New Mexico, while 
 providing for voting by ballot, also provided that each ballot should be numbered 
 when received, the niunber being entered wnth the name of the voter on the poll book, 
 but the identity of the vote not to be disclosed except in case of contested election. 
 So it was practicable to decide for whom the disqualified voters cast their ballots. 
 The evidence as to disqualification consisted in the books whereon, in obedience to 
 the precept of the militan,' governor, the Mexican citizens who desired to retain 
 their Mexican citizenship had been enrolled. The comparison of this enrollment 
 with the poll books showed the names of the Mexicans who had voted, and this was 
 taken as prima facie evidence of the disqualification of the voters. The committee 
 admit that, in the absence of testimonj" to connect the names with the persons, the 
 evidence was not conclusive, but it was considered sufficient to throw the onus pro- 
 
 ' Journal, pp. 1245, 1259, 1264; Globe, pp. 1688, 1711, 1729. 
 
 'First 8P68ion Thirty-fourth Congress, House Report No. 90; 1 Bartlett, p. ]77; Eowell's Digest, 
 p. ]44.
 
 1082 PRECEDENTS OF THE HOLTSE OF REPEESENTATIVES. § 831 
 
 bandi oa the sitting Delegate. The committee found that the sitting Delegate failed 
 to overthrow the prima facie evidence in enough cases to result in the wiping out of 
 his majority. 
 
 The sitting Delegate objected that the enrollment of these Mexican citizens was 
 invalid because not made in accordance with a law of Congress. The committee 
 held that the action of the military governor under the treaty was sufficient. 
 
 831. The case of Otero v. Gallegos, continued. 
 
 Failure of the judges of an election to take the required oath was held 
 to vitiate the return. 
 
 Instance wherein absence of certificate that election officers were 
 sworn was deemed conclusive in absence of testimony to the contrary. 
 
 The destruction of the secrecy of the ballots by crying out the votes 
 as given was deemed a reason for rejection of the poll. 
 
 Testimony taken before an officer other than the one named in the 
 notice was rejected by the committee. 
 
 After the election the testimonyof the voter as to how he voted may 
 not be received to impeach the ballot recorded as cast by him. 
 
 Another objection urged by the contestant was that the secretary of the ter- 
 ritory had counted for the sitting Delegate certain votes of the precinct of Mecilla, 
 which the probate judge, assuming to act under the law, had rejected in making up 
 his return for irregularities. The committee did not inquire as to the legality of the 
 act of the probate judge, since the House had the right to determine whether or not 
 the election in this precinct had been conducted in accordance with the laws of New 
 Mexico. 
 
 The committee found that the poll-book certificate, that the judges were sworn, 
 was wanting, although required by law; and considered this evidence, given by the 
 judge of probate, as sufficiently conclusive in the absence of testimony to the con- 
 trary, the onus probandi being thrown onto the other side in accordance with the 
 principle established in the case of Draper v. Johnston. The failure of the judges to 
 take the oath vitiated the election, in the opinion of the comniittee, who cited the 
 cases of McFarland v. Culpepper, Draper v. Johnston, and Easton v. Scott. 
 
 It was furthermore found in regard to this precinct that the officer receiving 
 the ballot cried it out, thus destroying its secrecy and causing the proceeding to 
 amount practically to viva voce voting. 
 
 Then, also, a bystander, who was neither judge nor clerk, assisted in receiving 
 the votes; the poll books furnished by law were not used, and others substituted, 
 and 192 ballots, neither nmnbered nor registered as required by law, were found in 
 the box. 
 
 For all these reasons the committee reconamended the rejection of the vote of 
 the precinct. 
 
 The sitting Delegate alleged and attempted to prove frauds in the precinct of 
 Chamisal, the charge being that 160 legal votes for him were abstracted and an 
 equal number for the contestant put in. 
 
 The sitting Delegate in his notice had declared that he should examine the wit- 
 nesses to prove the above before the chief justice of the supreme court of the ter-
 
 § 832 GENERAL ELECTION CASES, 1850 TO 1860. 1083 
 
 ritory, but in fact the testimony was taken before a probate judge. For this reason 
 a majority of the co mm ittee held that this testimony should be rejected. 
 
 The sitting Delegate had taken the testimony of the voters to prove that the 
 ballots counted were not the ballots cast. The committee say: 
 
 It would be productive of unending frauds and perjuries to permit parties to come forward, after 
 an election by ballot, and swear that thoy voted differently from what the ballots themselves exhibit. 
 Especially must this principle apply under the system adopted in New Mexico, where every ticket is 
 numbered, and the number also recorded in the poll books opposite to the name of the voter. The only 
 proof which ought to be admitted to establish a fraud such as that charged in this case would be to show, 
 by affirmative testimony, that the judges, clerks, or some other persons actually withdrew the tickets 
 given by the voters and substituted others for them. Until this shall be shown, the oath of the voters 
 should not be received to contradict the record and the ballots themselves. The very nature of the 
 ballot renders this principle a necessity; otherwise, every election might be tried over a second time 
 by the oath of the voters instead of the ballots deposited in the boxes in the presence of the officers and 
 of the public. 
 
 In support of this doctrine the committee cite the case of Van Kensselaer v. 
 Van Allen. 
 
 The conclusions of the committee showed a majority for the contestant, and 
 resolutions declaring Mr. Gallegos not elected, and that Mr. Otero was entitled to 
 the seat were reported. 
 
 On July 23,' the two resolutions were agreed to after debate without roll call; 
 but on the motion to lay on the table the motion to reconsider the yeas and nays 
 were ordered, and the motion was agreed to, yeas 128, nays 22. This vote seems 
 to have been on the merits of the case, the Member demanding the yeas and nays 
 saying that he did so because he believed the sitting Member entitled to the seat. 
 
 832. The Iowa election case of Clark v. Hall in the Thirty-fourth 
 Congress. 
 
 The House declined to reject for mere informality a return which 
 truly represented the aggregate vote cast. 
 
 The House declined to reject returns, although it was shown that 
 some votes (not enough to change the result) actually cast were not 
 included. 
 
 On February 4, 18.57,' the Committee on Elections reported in the case of Clark 
 V. Hall, of Iowa. They came to the conclusion that the sitting Member was duly 
 elected, and entitled to the seat. This conclusion was concurred in by the House 
 without division. 
 
 The grounds of the contest and conclusions of the committee are set forth in 
 the following extract from the report: 
 
 It appears from the canvass of the State canvassers of Iowa that the sitting Member received one 
 hundred and seventy-seven more votes than the contestant, of the votes which they received and 
 allowed. 
 
 The State canvassers, by the laws of Iowa, canvass abstracts furnished by certain county officers of 
 the votes thrown in the several counties. 
 
 Objections are made in this case, both to alleged informalities in these county abstracts and to 
 their alleged want of correspondence with the state of the votes as actually ca.st in the voting precincts. 
 
 'Journal, pp. 1265, 1266; Globe, p. 1736. 
 
 'Third session Thirty-fourth Congress, Journal, p. 3.56; Globe, p. 569; 1 Bartlett, p. 215; Howell's 
 Digest, p. 148; House Report No. 178.
 
 1084 PRECEDENTS OF THE HOUSE OF KEPRESENTATIVES. § 833 
 
 In conformity with the principles acted upon by your committee in the case of the contested seat 
 of the Delegate from the Territory of Nebraska, your committee would not reject for mere informality a 
 county abstract which truly presents the aggregates of the votes actually cast in the voting precincts. 
 
 In this case there is evidence that legal votes actually cast both for the contestant and the sitting 
 Member are not embraced in the county abstracts. It does not, however, sufficiently appear that the 
 corrections authorized by the evidence would so far change the result as to give the contestant as 
 many votes as the sitting Member received. 
 
 833. The Maryland election case of Brooks v. Davis in the Thirty- 
 fifth Congress. 
 
 It was conceded in 1858 that the House was not necessarily bound 
 by the law of 1851 in judging of the elections, returns, and qualifications 
 of its Members. 
 
 In 1858 the House deemed insufficient reasons urged by a contestant 
 for proceeding in a manner different from that prescribed by the law of 
 
 1851. 
 
 In 1858 a proposition that witnesses in an election case be examined 
 at the bar of the House found no favor. 
 
 On February 12, 1858/ the Committee on Elections reported in the case of 
 Brooks V. Davis, of Maryland, on the petition of contestant that he be not required 
 to continue to proceed under the law of 1851, but that a committee with adequate 
 powers be appointed to investigate the election. The contestant assigned the fol- 
 lowing reasons for granting the request: (1) That the authorities of Baltimore were 
 unwilhng or unable to so preserve the public peace as to prevent the intimidation 
 of witnesses; (2) that the extensive nature of the conspiracy charged necessitated 
 a longer time than the sixty days allowed by law for taking testimony; (3) that the 
 required ten days' notice to sitting Member of names and residence of witnesses 
 would enable the intimidation of those witnesses; and (4) that the bearing and 
 evident disposition disclosed by witnesses would be lost in its effect if the evidence 
 should be in the nature of depositions. 
 
 This memorial was accompanied by the indorsement of reputable citizens of 
 Baltimore. 
 
 The majority of the committee foimd no reason for extraordinary action b}^ 
 the House. It was not established that evidence could not be safely taken in 
 Baltimore imder the act of 1851. Another contestant in another case was actually 
 taking such testimony at this time. As to the argument that sixt}" days was too 
 short a time the majority considered that the contestant should have gone on 
 taking testimony, and asked for an extension if the time should be found too short. 
 The tliird reason was subject to the same answer as the fourth. As to the fourth 
 reason, the committee considered that under no circumstances could the House 
 examine the witnesses at the bar. 
 
 The minority of the committee - considered that the act of 1851 was intended 
 to apply to such cases as involved personal contests of election, while the pending 
 
 'First session Thirty-fifth Congress, House Report No. 105; 1 Bartlett, p. 245; Rowell's Digest, 
 p. 154. 
 
 ^Messrs. Henry M. Phillips, of Pennsylvania; Thomas L. Harris, of Illinois; John W. Stevenson, 
 of Kentucky, and Lucius Q. C. Lamar, of Mississippi.
 
 § 833 GENERAL ELECTION CASES, 1850 TO 1860. 1085 
 
 case was rather one of popular remonstrance against the vahdity of an election. 
 There seemed to be reason for such an investigation as was asked. The governor 
 of Maryland, in his message to the legislature, had recorded liis opinion that the 
 election was fraudulently conducted; that thousands of people had been excluded 
 from the polls, and that there was no expression of the popular will. Here was a 
 case where there was justifiable ground for not complying strictly with the terms 
 of that law. "If it is claimed," say the minority, "that the act of 1851 prevents 
 the House of Representatives from piu^uing an investigation in any other manner 
 than prescribed by that act, it would then be wholly inoperative, coming into con- 
 flict with the fifth section of the first article of the Constitution of the United States, 
 which provides 'each House shall Tbe the judge of the elections, returns, and quali- 
 fications of its own Members.' Xo prior House of Representatives can prescribe 
 rules on this subject of binding force upon its successor, nor can the Senate interfere 
 to direct the mode of proceeding. The House of Representatives is not a continuing 
 body, each body of Representatives having an independent and limited existence, 
 and having the clear right to determine, in its own way, upon ' the elections, returns, 
 and quahfications of its own Members.' A like authority is given, and in similar 
 terms, to each House to ' determine the rules of its proceedings, pimish its Members 
 for disorderly behavior,' etc. ; and no Member will pretend that a general law, passed 
 in such terms as the act of 1851, would restrain any House from acting on these 
 subjects independently of the law." 
 
 On February 16 and 17 ' the report of the committee was considered and acted 
 on. In this debate Mr. W. W. Boyce, of South Carolina, who submitted the report 
 of the majority of the committee, did not deny the power of the House to proceed 
 independently of the act of 1851. The power of the House to "judge of the elec- 
 tions, returns, and qualifications of its own Members," being granted by the Con- 
 stitution, could not be taken away by law. 
 
 But Mr. Boyce argued very strongly that it was not expedient in this case to 
 go outside the law. The fact that Mr. Brooks was not himself contesting the seat 
 did not the less make the law applicable. 
 
 Mr. Horace Maynard, of Tennessee, argued^ that the law of 1851 did not trench 
 on the constitutional prerogative of the House, simply determined the mode by 
 which the question should be presented to the House, and said that under his inter- 
 pretation of the law and Constitution he could not conceive of any other mode than 
 the act of 1851 by which a seat could legally be contested. 
 
 The proposition of the minority that the Committee of Elections have power 
 to send for persons and papers, etc., in order to investigate the election, was disagreed 
 to, yeas 86, nays 110. 
 
 Then the resolution of the majority, "that it is inexpedient to grant the prayer 
 of the memorialist for the appointment of a committee to take testimony," was 
 agreed to, yeas 115, nays 89. 
 
 On May 19, 1858,^ the committee was discharged from the further consideration 
 of the case, and it was laid on the table. 
 
 'Journal, pp. 394, 397-^00; Globe, pp. 725, 745. ^Qio^g^ p 727. 3 journal, p. 848.
 
 1086 PRECEDENTS OF THE HOUSE OF EEPRESENTATIVES. § 834 
 
 834. The election case of Chapman v. Ferguson, from the Territory of 
 Nebraska, in the Thirty-fifth Congress. 
 
 Instance wherein the House permitted the time for taking testimony 
 in an election case to be lengthened, although one or both parties had been 
 negligent. 
 
 The House decided to count as cast for " Fenner Ferguson " certain 
 ballots cast for " Judge Ferguson." 
 
 The House decided to count certain returns rejected by local can- 
 vassers because not transmitted within the time required by law. 
 
 The House, by reason of the ex parte nature of the evidence, declined 
 to follow its committee in rejecting the poll where the conduct of election 
 oflScers was irregular and apparently fraudulent. 
 
 On April 21, 1858,' the Committee on Elections reported a resolution allowing 
 a further time of sixty days for the taking of testimony by the parties in the con- 
 tested election case of Chapman v. Ferguson, of Nebraska Territory. 
 
 The committee reported that the election had been held in the preceding August ; 
 that the result was not annoimced officially until the 3d of the following September; 
 that the contestant gave notice to the sitting Member on September 16 of his inten- 
 tion to contest, and the response of the sitting Member, dated October 2, 1857, was 
 served on contestant on the 10th day of that month. The committee further say: 
 
 No notice of intention to take testimony was given Ijy the contestant until the 13th and 14th days 
 of November, when more than one-half of the time allowed by law to take the same had expired, nor 
 until after the sitting Member had left the Territory for this city to enter upon the discharge of his 
 duties. The sitting Member has made oath that he knew nothing of the testimony taken in this case 
 untU he saw it printed in Miscellaneous Document No. 5, of this House, and that he has had no oppor- 
 tunity to rebut and disprove the same. 
 
 Your committee are of opinion that the sitting Member erred in not leaving an acknowledged 
 attorney in the Territory to look after the contest, of which he had been notified ; and were the contestant 
 and the sitting Member alone those who have an interest in its decision, your committee might hesitate 
 before coming to the conclusion to which they have arrived. The question to solve is, not simply what 
 these parties have done or omitted to do, but what was the expressed wish of the people of Nebraska, 
 as between these candidates, at their late election? And what is a reasonable time and indulgence, 
 under the circimistances, to obtain proof of that wish? 
 
 As the contestant permitted more than one-half of the time allowed by law to elapse before com- 
 mencing his proof, he can have but little cause for complaint should the period for taking proofs be 
 extended. And as the election has been so recently held, and the contestee averring that he never had 
 any notice of taking testimony, your committee are of opinion that justice to the contestee, as well as to 
 the people of Nebraska, requires that time be given to take further evidence. 
 
 Considerable doubt arose as to this proposition, it being objected that the 
 extension of sixty days would deprive the Territory of its Delegate's services during 
 the greater part of the session. So an amendment was agreed to extending the 
 time to the first of October next. As amended the resolution was agreed to, yeas 
 98, nays 86.' The opposition based their course on the fact that the notice had 
 been left at the sitting Member's house, occupied by a man alleged, but not admitted, 
 to be the agent of the sitting Member. 
 
 1 First session Thirty-fifth Congress, House Report No. 51; Globe, pp. 1717-1720; 1 Bartlett, p. 267; 
 Rowell's Digest, p. 159. 
 
 2 Journal, p. 662.
 
 § 835 GENERAL ELECTION CASES, 1850 TO 1860. 1087 
 
 On February 4, 1859, the majority and minority reports were submitted. Both 
 majority and minority agreed on the following conclusions: 
 
 That certain votes cast for "Judge Ferguson" instead of "Fenner Ferguson" 
 and rejected by the board of canvassers should be counted for the sitting Delegate. 
 
 That contestant was entitled to certain votes cast at the precinct of Cuming 
 City and not counted by the Territorial canvassers because the judges of election 
 did not return the poll books to the county clerk within the time required by law, 
 by reason of which the county clerk failed to certify an abstract to the governor. 
 The cases of Richards, Bard, Spaulding v. Mead, and ilallary v. Merrill were cited in 
 support of the doctrine that these votes should be counted for the contestant. 
 
 The corrections of the vote in accordance with the above principles did not 
 fatally affect the title of the sitting Member to the seat. 
 
 But the contestant charged extensive frauds in three precincts, which would, 
 if proven, be sufficient to take away the majority of the sitting Delegate and show 
 the election of the contestant. 
 
 The evidence in relation to these precincts was conflicting. In general, residents 
 of the precincts in question testified or made affidavit that the election was pure. 
 The testimony that there was fraud was quite largely from persons who had gone to 
 the precincts and testified as to what had been told them. This evidence was 
 attacked as hearsay. There were suspicious circumstances admitted, such as the 
 names of ''Samuel Weller" and "OUver Twist" among the voters, the keeping of 
 the polls open in one precinct after the legal time of closing. While admitting that 
 votes received after the hour for closing the polls should be deducted, the minority 
 did not consider the testimony sufficient to justify further deductions, and there- 
 fore found that the sitting Delegate was entitled to the seat. 
 
 The majority of the committee, on the other hand, recommended the deduc- 
 tion of votes which they considered proven to be fraudulent in two of the precincts. 
 In the third precinct where the polls were kept open after the legal hour, where 401 
 votes were returned for the sitting Member and 4 for the contestant, where it was 
 alleged that the election oflicers were not properly sworn, and in relation to which 
 the county canvassers had unanimously recommended the rejection of the entire 
 precinct vote, the majority recommended that the entire vote be thrown out. This 
 recommendation, if carried out, would entitle the contestant to the seat. 
 
 The report was debated at length on February 9 and 10, 1859.' The discussion 
 was on the weight of the evidence (much of which was taken ex parte by contest- 
 ant) in regard to the frauds alleged in the three precincts; and there appeared a 
 diversity of opinion, which was finally settled by laying the whole subject on the 
 table, by a vote of yeas 99, nays 93. 
 
 So the sitting Delegate retained his seat. 
 
 835. The Ohio election case of Vallandigham v. Campbell in the 
 Thirty-fifth Congress. 
 
 It is not necessary that the notice of contest specify the names of 
 individual voters whose qualifications are challenged. 
 
 A certificate of the rettxms, under seal of the State, was admitted as 
 
 ' Second session Thirty-fifth Congress, Journal, pp. 375, 377; Globe, pp. 914, 941.
 
 1088 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 835 
 
 evidence in an election case without regard to the requirements of the law 
 of 1851 as to testimony. 
 
 On May 13, 1858/ the Committee on Elections reported its inability to agree 
 upon a recommendation in the contested election case of Vallandigham v. Campbell, 
 of Ohio. Four of the committee found the contestant entitled to the seat ; four found 
 the sittinf Member entitled to it; and the remaining Member reached the conclu- 
 sion that the seat should be declared vacant on account of the difficulty of ascer- 
 taining who was elected. 
 
 The following were the principal questions involved in the examination: The 
 sufficiency of the contestant's notice of contest; the admissibihty of a certificate of 
 the secretary of state as to the votes cast, and the natiu-e of this and the poll books 
 as evidence; the admissibility and sufficiency of evidence as to how certain voters 
 cast their ballots; the qualifications of certain voters, especially some mulattoes. 
 
 The minority favoring the sitting Member, whose views were submitted by Mr. 
 John A. Gilmer, of North Carolina, contended that contestant's notice had not been 
 sufficient, for the reason that it did not specify "particularly" the grounds of con- 
 test by naming the voters whose qualifications were questioned and the legal 
 objections to the admission or exclusion of each. Mr. Gilmer cited the cases of 
 Varnum and Easton and Scott in support of this contention. The further objec- 
 tion was made that the contestant had made no particular specification as to the 
 number of votes questioned and their relation to the votes cast and the result. 
 The specifications as to "sundry ballots," "sundry persons," etc., were not specifi- 
 cations at all. 
 
 In opposition to these objections, it was argued by Mr. Lucius Q. C. Lamar, of 
 Mississippi, who presented the views of another portion of the committee, that the 
 law did not require any more to be set forth than the class to which the voters 
 belonged, especially as by express provision it required each party to furnish ten 
 days in advance the names of the witnesses proposed for examination. This view 
 had been taken in 1852 in the case of Wright v. Fuller, and in the more recent case of 
 Otero V. Gallegos. 
 
 Mr. Gilmer's minority objected that there was no proof whatever which professed 
 to give either the aggregate vote for each party or the majority for the sitting Member. 
 After the time allowed by law for taking testimony had expired, a paper had been 
 presented under the seal of Ohio and the official certification of the secretary of 
 state, giving an abstract of the votes given at the election in question. This paper 
 was not admissiable as testimony, for the time for taking testimony had expired 
 when it was presented. Furthermore it was only a mere copy of a certificate which 
 itself was merely a result ascertained by calculation from the original and only 
 source of information, the poll books. The law of Ohio required each voter to be 
 registered in the poll book at the time of voting, and this book to be returned to the 
 clerk of the county. From it the county clerk certified to the governor the summary 
 of votes. Thus the original record was not the clerk's certificate to the governor, 
 but the poll books. The certificate might be adequate foundation for the mere 
 ministerial acts of the governor in giving the certificate of election; but it was not 
 
 ' First session Thirty-fifth Congress, House Reportt No. 380; 1 Bartlett, p. 228; Rowell's Digest, 
 p. 151.
 
 § 836 GENERAL, ELECTION CASES, 18.30 TO 1860. 1089 
 
 evidence in a legal contest when the question was not how many votes were certified 
 to the governor, but how many were actualty cast at the polls. If the certificate 
 were to be admitted as evidence that the voters actually cast the votes as enumer- 
 ated in the certificate, it would be on the supposition that the certificate in the 
 secretary's ofiice was written official evidence of the votes cast. If so this would 
 exclude all parol evidence of the contestant to show how particular persons voted. 
 For it would follow that the poll books were the original records of those who voted 
 at the election; and being the written legal evidence preserved by law, all secondary 
 evidence, even of the voter himself that he voted for either party, would be excluded. 
 
 Mr. Lamar argued against the above contentions. He held that the testimony 
 required by the act of 1851 was the testimony of " witnesses," or at most such writing 
 as could be proved only by the examination of witnesses. But documentary evidence, 
 at least such as proved itself, might be obtained at any time after sixty days, and be 
 produced before the committee. The document in question, bearing the great seal 
 of the State, was of the highest authenticity. It was further urged that in most 
 of the cases since 1851 the abstract of the returns had been obtained subsequent to 
 the sixty days hmited in the act. As to the poll books, no provision was made any- 
 where for furnishing copies for any person, and that they were not within the acts 
 of Congress touching the authentication of records, and were not anywhere declared 
 to be records. Not only were they not the sole and best evidence to prove that a 
 particular person voted, but they were not themselves sufficient. Parol evidence of 
 identity was alwaj'S necessarj'^; and the name on the list was only corroborative 
 evidence. In Newland v. Graham the committee had received evidence that persons 
 voted whose names were not on the poll books at all. In the New Jersey case of 
 1840 the committee "resorted to parol proof as the best evidence the case would 
 adnait, the laws of New Jersey not reqmring the poll lists to be preserved as a record 
 of the actual voters." A comparison of those laws with the laws of Ohio on the 
 subject of poll books would show that this precedent was precisely in point. 
 
 836. The case of Vallandigham v. Campbell, continued. 
 
 The vote thrown by an alleged disqualified voter may be proven by his 
 own testimony or that of friends who heard his declarations. 
 
 A theory that a voter, whose qualifications are challenged, is a party 
 whose confession is proper evidence. 
 
 Argument that an election case is a public inquiry which should pro- 
 ceed on more liberal principles than a private litigation. 
 
 As to the quahfications of voters, there were charges that disqualified persons 
 voted at various places. The minority, led by Mr. Lamar, held that enough was 
 proved as to these alleged disqualified voters to show the election of the contestant. 
 Mr. Thomas L. Harris, of Illinois, who signed the third minority views, considered 
 the evidence sufficient to destroy confidence in the election, but thought the diffi- 
 culty of determining how people voted by secret ballot too great to enable a satis- 
 factory decision as to who was elected. After a vote was proved to be illegal, the 
 great difficult}^ was to show for whom it was cast. Hearsay evidence must be 
 resorted to, and that was always dangerous, and should be received with the greatest 
 caution. 
 
 .5994 — VOL 1—07 09
 
 ;[Q90 PRECEDENTS OF THE HOUSE OF KEPKESENTATIVES. § 836 
 
 Mr. Lamar, on the other hand, argued that the committee and the House should 
 proceed upon liberal principles in a contested election, which was not a mere pri- 
 vate litigation, but a great public inquiry. The distinction between the House 
 and the ordinarj^ forensic court was recognized both by Congress and the usages 
 of Parliament. The admissibility of evidence consisting of the declarations of 
 voters as to any matter concerning their own voting has been settled in the British 
 ParHament repeatedly and uniformly for one hundred and fifty years, and was no 
 longer to be questioned. As to the hearsay declarations of third powers, the recep- 
 tion of such was put upon the ground that each voter challenged was a party to 
 the proceeding, and therefore what he said about his own voting was an admission 
 or confession. Mr. Lamar illustrates the kind of evidence accepted by his portion 
 of the conamittee by the following description: 
 
 Anderson testifies to his own vote and as to the declaration of two others, his friends, one of 
 whom worked with him; that there was an understanding between him and them that they were to 
 vote and they did vote, for the sitting Member. As to those who voted in Oxford, Lawrence, one of 
 the twelve, declared to the witness that he voted for the returned Member and advocated his election; 
 and the proof as to the others, including Lawrence, though circumstantial, is just such as has been repeat- 
 edly received and acted upon by committees and the House. That it is not positive and direct is 
 because the nature of the case, the vote being by secret ballot, does not usually admit of such proof. 
 
 By the admission of such testimony as to voters, Mr. Lamar's minority found 
 a majority of 23 votes for the contestant. A portion of the challenged voters were 
 persons of color- — mulattoes — and there was a legal question as to whether under 
 the constitution of Ohio and the judicial decisions some of these should be con- 
 sidered white or black. Mr. Lamar's minority arrived at the conclusion that they 
 were black and were not qualified. The point was not dwelt upon in Mr. Gilmer's 
 report, which based its defense of the sitting Member on the other questions in 
 the case. 
 
 The report was debated May 22,' especial attention being given to the nature 
 of the evidence by which it was attempted to show that the mulatto voters sup- 
 ported the sitting Member. 
 
 Mr. Lamar, in the debate,' also dwelt upon the allegation of the contestant 
 which had not been noticed in the reports — that the election in the second ward 
 of Dayton was void because the person who presided as judge was elected in viola- 
 tion of law. The House had waived informalities in the returns frequently, pro- 
 vided the election itself was fairly and legally conducted. The case of Jackson v. 
 Wayne was quoted in support of this view. 
 
 On May 25 ^ the House began voting on the case, a motion to recommit for 
 the purpose of allowing further testimony to be taken being decided in the nega- 
 tive, yeas 92, nays 116. 
 
 The question being next put on a proposition declaring the sitting Member 
 entitled to the seat, it was decided in the negative, yeas 92, nays 116. 
 
 The question was next taken on two resolutions: First, that the sitting Mem- 
 ber was not entitled to the seat; second, that the contestant was entitled to it. 
 
 On the two resolutions the question was decided in the affirmative, yeas 107, 
 nays 100. 
 
 ' Globe, p. 2316. => Globe, p. 2331. ' journal, pp. 902-910.
 
 § 837 GENERAL ELECTION CASES, 1850 TO 1860. 1091 
 
 837. The Michigan election case of Howard v. Cooper in the Thirty- 
 sixth Congress. 
 
 The sitting Jttember having clearly neglected his opportunities, the 
 Elections Committee decided against his request for additional time to 
 take evidence. 
 
 A State law requiring a residence of ten days in a ward as qualifica- 
 tion of a voter, yet it was held that he must be there with the intention of 
 remaining. 
 
 On March 15, I860,' the Committee on Elections reported a resolution declaring 
 It mexpedient to grant the application of the sitting Member for additional time to 
 take testmionj' m the contested election case of Howard v. Cooper, of Michicran 
 The sittmg Member accompanied his memorial by 29 ex parte affidavits which he 
 asked to have made a part of the case. If this request should be refused he asked 
 for the extension of time. The majority of the committee did not favor either 
 request, but concluded that the sittmg Member, bv delaying more than eleven 
 months after the legal Umit for taking testimony, and until one-half of the time of 
 service of the Congress had expired, had presented a clear case of laches In the 
 case of Vallandigham v. Campbell it had been determined that the two parties micrht 
 proceed to take testunony simultaneously during the sLxty days allowed by kw 
 and further, that if either should ^^-ish more time he should proceed (Con-ress not 
 being in session) to give notice to the other party and take it after the expiration 
 of the sixty-days' hnut, relying on its being accepted by the House. 
 _ The minority of the committee favored granting the request, findin.^ a dis- 
 tinction between this case and others in that the sitting Member desired to impeach 
 the^ veracity of fatnesses examined at the last moment allowed for taking testiniony 
 under the act of 1851, and wliich might not be hnpeached if the permission was not 
 granted. 
 
 The question was debated at length on March 22,^ when the resolution proposed 
 by the majonty of the committee, denying the request, was agreed to, yeas 89 
 nays 79. •' ' 
 
 On April 19,^ the majority of the conmiittee reported that the sitting Member 
 ^titl^e°d''to\'''''' """^ '"*'''''^ '"^ ^^' ''^^' ^"'^ ^^""^ ^- ^*''™'^' *^' ««°t««taJit- ^^as 
 
 The contestant sought to overcome sitting Member's plurality of 75 votes bv 
 alleging several instances of fraud and irregularity, either of which, if substantiated 
 would be sufficient to overcome the plurality. The points were four- 
 
 (1) Illegal votes: The committee found over 100 illegal votes cast for sitting 
 Member. In certain wards of the city of Detroit men were brought in from oth^ 
 wards o the city, from other States, and even from Canada, the legal limit of ten days 
 before election, and were allowed to vote, the testimony indicating that they voted 
 for SI ting Member. The committee came to the conclusion that under the law of 
 t^e S tate of M i chigan a m an must have gone to the ward where he voted with the 
 
 p. lei.^''"' '"''''"' Thirty-sixth Congress, Ho^ Report No. 87; 1 B^irotZV~T^^^^R^elVs Digest, 
 
 ^Journal, p. 568; Globe, pp. 1307-1318. 
 " House Report Xo. 415.
 
 ]^092 PRECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 838 
 
 intention of making it his permanent residence, as the law of Michigan required a 
 residence of three months within the State and of ten days before election within 
 the township or ward where the vote is cast. Therefore the majority concluded that 
 the votes brought in witliin the ten days' limit were illegally cast. The minority of 
 the committee contended that there was no evidence to show that the men whose 
 votes were impeached resided out of the State of Michigan, and that as they had 
 resided in the ward ten days before election, and as their votes had been challenged 
 on election day and admitted, the votes should generally be counted. Such votes 
 as the minority admitted to be impeached were not sufficient to affect the plurality 
 of the sitting Member. 
 
 838. The case of Howard v. Cooper, continued. 
 
 A voting place fixed by competent authority being changed without 
 competent authority, the votes cast there were rejected. 
 
 There being only two inspectors of election where the law required 
 three, the returns were rejected. 
 
 Irregularities being so great as to prevent a determination of how 
 many bona fide votes were cast, the poll was rejected. 
 
 Charges of riot and intimidation being to some extent substantiated, 
 yet the committee believed that in case of doubt the returns should stand. 
 
 (2) At Grosse Pointe parish the place of voting was changed from the accus- 
 tomed place, in disregard of the law of Michigan, which provided that the " annual 
 and special township meetings" should be held at the last place of meeting or such 
 other place as the previous meeting had directed. The committee considered that 
 the voting place had been fixed by competent authority and changed without com- 
 petent authority, and therefore that the vote could not be counted. The minority 
 contended that the law quoted by the committee applied only to the township 
 meetings and not to general elections, and claimed that the place of meeting had 
 been properly changed under provisions of another law which required the town 
 clerk as inspector of election to give due notice of the time and place of election. 
 The majority denied, however, that this function of giving notice involved the other 
 function of "fixing" the place. The minority further contended that no evidence 
 was given to show that any persons were prevented from voting by the change of 
 place of the meeting. The rejection of the poll at this voting place would be suffi- 
 cient of itself to determine the contest in favor of the contestant. 
 
 (3) The majority of the committee decided in favor of rejecting the vote of 
 the township of Van Buren because the proof was clear that there were but two 
 inspectors present at the polls, while the law required that the board of inspectors 
 should be composed of three persons. 
 
 (4) The majority of the committee decided in favor of throwing out the entire 
 vote of the Fourth Ward of Detroit because of "irregularities and informalities, 
 such clear violations of the statutes of Michigan, and such errors of substance as to 
 destroy all certainty as to the accuracy of the result." Two tickets, one for State 
 officers and one for Member of Congress, were cast in one box. No poll lists were 
 kept so as to show whether of the two tickets cast by a voter one was for State 
 officers and the other for Congressman, or both were for Congressman or both for
 
 § ^^^ GENEEAL ELECTION CASES, 1850 TO 1860. 1093 
 
 State officers. The committee considered that this was sufficient to prevent 
 determimng how many bona fide votes were cast for Congressman 
 
 It was also found in this ward that one of the ex officio inspectors of election 
 
 who was, as appears from the debate, a candidate voted for at the election dechnei 
 
 o serve-hen the polls were opened, and another was chosen, conformab Iv to aw 
 
 to fiJl his place But when the polls closed the elected substitute retired and tlTe 
 
 hetunV^T^ ' '. '1, ''^^l^r' ^" *^^ "^°™^-^' ^^"- f™d and assisted a 
 the count. The majonty alleged that the evidence showed that he was not sworn 
 but the mmority did not admit this. ^vvuiu, 
 
 r.nJ^' charge was made that the polls in the Second Ward of Detroit were in the 
 possession of noters and pnze fighters during the day and that the entire vote shouM 
 be thro^Ti out. There was testimony tending to substantiate this charge, but the 
 committee recommended that the poll stand, saying: 
 
 ^\'^; ^'^^te of facts proved leave it doubtful whether, on the whole, the poll should be retained 
 
 1 H ^A ^^?^ u^°*^ ^u' **'" '"P"'* "^^^ ^^'^"^^^^ ^^ the House at length, and on the 
 
 latter day the House, by a vote of yeas 97, nays 77, agreed to a resoruti;n deciar ng 
 
 he sitting Member not entitled to the seat. Then, by a vote of veas 92, navs 71 
 
 the resolution seating the contestant was agreed to. ' ' y ' ^> 
 
 839. The election case of Daily v? Estabrook, from the Territory of 
 Nebraska, in the Thirty-sixth Congress. ^ 
 
 A contestant may serve more than one notice of contest, provided that 
 each notice be served within the required time 
 
 A certified copy of the official abstract of the vote is competent proof 
 in an election case. 
 
 f n J?^ ^"^^ °^ ^^^ ^^^ °^ *^^'^^ testimony in an election case applies 
 to witnesses and not to a certified copy of the returns 
 
 v., k" i^''\ 20, 1860,^ tlie Committee on Elections reported in the case of Daily ., 
 Estabrook, of Nebraska Territory-. Besides tlie merits of the case there were raised 
 also certain prehminarj- questions of importance: 
 
 (a) Sitting Delegate asserted that under the act of 1851 but one notice of con- 
 W thT^nt ""Ti^ contestant on contestee and that the contestant must abide 
 by this notice whether sufficient or not. The committee did not sustain this view 
 but concluded that more than one notice might be served, provided they be served 
 within the tune required by the act. 
 
 .n. ^^\ fi!"'1 ^f f *' ^'^° challenged the competency as proof of the certified 
 copy of the official abstract sho^ving the result of the vote in the Territorv The 
 committee overruled this objection, saying: 
 
 rhp . T^^ ''T "^ organization of Nebraska pro^ades that the secretary of the Territory shall preserve all 
 the act« and proceedmgs of the governor which pertain to his executive duties. He is, thereforeTade 
 the custodian of this abstract, and, a.s the original must remain where it is, it is comp;tent to prorS 
 r ToSd^b: r e'f ™'^- "'" ' "'''' '- '''- ^^-' ^^' ^^^ -mmitteethink it is'theX" fvTd^: 
 
 ' Globe, pp. 2092, 2101, 2110; Journal, pp. 841, 843 
 ^^^First session Thirty-sixth Congress, House Report No. 446; 1 Bartlett, p. 299; RoweU's Digest,
 
 1094 PRECEDENTS OF THE HOUSE OF KEPRESENTATIVES. § 840 
 
 (c) Sitting Delegate further objected that the above abstract could not properly 
 be received as evidence, because procured after the contestant had given notice that 
 he would procure no further testimony and would give notice in case of a change 
 in tliis determination. The committee construe this as referring only to the "exam- 
 ination of witnesses," and consider the certificate from the secretary of the Territory 
 proper evidence, properly obtained, especially as sitting Delegate did not allege it 
 to be false. 
 
 (d) Sitting Delegate alleged that the evidence was not taken before a proper 
 officer, claiming that a judge of probate in Nebraska was not a judge of a court of 
 record, as required by the act of 1851. The committee considered such a court a 
 court of record from the nature of the case, and furthermore showed it to be such 
 by express provision of Nebraska law. 
 
 On the merits of the case the committee found sufficient irregularities and 
 frauds to overcome the majority of 300 returned for the sitting Delegate and show 
 a majority of 119 votes for the sitting Delegate. 
 
 840. The case of Daily v. Estabrook, continued. 
 
 Votes from a county illegally organized, whose election officers were 
 improperly commissioned and where there was some fraud, were rejected. 
 
 Returns in themselves suspicious, transmitted irregularly and opened 
 by an unauthorized person, were rejected. 
 
 A tainted vote from an illegally organized county was rejected. 
 
 Returns from a precinct not by a law a part of the district were 
 rejected. 
 
 Fraud, shown by oral testimony as to a stolen poll book and inferred 
 from acts of violence, was held to justify the rejection of a greater part of 
 the returned votes. 
 
 The irregiUarities and frauds occurred under the following conditions : 
 
 (1) The county of Buffalo returned 292 votes for the sitting Member. The 
 committee foimd that this county was not legally organized, that the officers who 
 must have conducted the election were improperly commissioned by the governor 
 of the Territory, and that the votes returned from the county had been therefore 
 illegally counted by the canvassers and should be deducted from the poll. The 
 committee also were convinced from the evidence that there was fraud, the votes 
 of one place not within the county bemg included in the vote of the county. 
 
 (2) The county of Calhoun, not being organized, should imder the law have 
 retmned its poll books to the clerk of the next adjoining county, Platte County, 
 whose duty it was under the law to send an abstract of them to the governor. But 
 the Calhoim County returns were sent directly to the governor, whose private 
 secretary took them from the post-office, opened them, examined them, and then 
 sent them to the clerk of Platte County, with direction to return them with the 
 Platte County returns. The committee say: 
 
 This was manifestly a violation of law. The law of the Territory, as also of all the States, has pointed 
 out a particular mode of making election returns and has designated particular officers who shall open 
 and inspect them. If they are opened and inspected by any others, they are thereby vitiated, for if 
 such a practice were tolerated innumerable frauds might be perpetrated and the popular will defeated. 
 By the law of Nebraska Territory the votes polled in Calhoun County could not be properly opened by
 
 § 841 GENERAL ELECTION CASES, 1850 TO 1860. 1095 
 
 any other persons than the probate judge and three disinterested householders of Platte County. Yet 
 it is in proof that they were opened by the private secretary of the governor, and it ia not proven or pre- 
 tended that the probate judge or any three householdei-s of Platte County ever saw them. On the 
 contrary, it is proven that they were sent by the private secretary of the governor to the clerk of Platte 
 County and by him sent back to the governor. The clerk must have opened them himself; this is the 
 necessary inference. 
 
 In the opinion of the committee, therefore, this violation of law vitiates the whole of the returns 
 from Calhoun County. 
 
 The committee further found evidence to justify the belief that the returns 
 from this county were origmally fraudulent, being evidently forged by some one. 
 
 (3) The committee found that the vote of Izard County was fraudulent, there 
 bemg no population sufficient to account for the vote returned, and not being an 
 organized coimty where an election could be legally held. 
 
 (4) The precinct of Genoa, m Monroe County, was within an Indian reservation, 
 which could not, under the organic law of the Territory, be considered a part of 
 Nebraska Territor\' until the Indian titles should be extinguished— a condition 
 which had not been complied \vith. Therefore the returns from the precmct were 
 illegal and fraudulent and should be rejected. 
 
 (5) The committee were entirely satisfied that all but 60 of the 128 votes 
 counted for sitting Delegate m L'Eau Qui Court County were fraudulent. Not only 
 did the testimony show that there could not be more than that number of votes in 
 the coimty, but two ^\-itnesses who attempted to brmg away a copy of the poll book 
 were prevented by a mob, who declared they were parties to the fraud, and were 
 resolved not to be exposed. The committee furthermore say: 
 
 The original poll books were afterwards stolen from the clerk's office, and doubtless were also 
 destroyed by the same men; but the witnesses saw enough of them to swear that they contained the 
 names of Howell Cobb, Aaron V. Brown, " ten names of McRea in consecutive order," and several others 
 whom they knew to be nonresidents of the county. 
 
 This proof of the contents of this poll book is entirely competent, since the loss of the original is 
 shown, and shows such fraud as ought not to go unpunished by the proper Territorial authorities. The 
 committee, in view of them, are satisfied that they have made a liberal allowance for the vote of the 
 county. 
 
 On May 18,' after debate, but without division, the House conciured in the 
 report unseating the sitting Delegate and seating the contestant. 
 
 841. The Missouri election case of Blair v. Barrett in the Thirty-sixth 
 Congress. 
 
 A suspicious increase of votes as compared with the previous election 
 was considered in an election case where fraud was alleged. 
 
 It not being shown that election officers were sworn and fraud appear- 
 ing, the House declined to admit the usual presumption in favor of de 
 facto officers. 
 
 The required return of the oaths of election officers not being made, 
 the burden of proving the oath is thrown on the party claiming benefit 
 from the votes. 
 
 On May 22, 1860,^ IVIr. Henry L. Dawes, of Massachusetts, from the Committee 
 on Elections, submitted the report in the case of Blair v. Barrett, of Missouri. In 
 
 'Journal, p. 861; Globe, pp. 2180-2185. 
 
 ^ First session Thirty-sixth Congress, House Report No. 563; 1 Bartlett, p. 308; 1 Powell, p. 165.
 
 1096 PBECEDENTS OF THE HOUSE OF EEPKESENTATIVES. § 841 
 
 this case the corrected returns showed for sitting Member a plurahty of 607 votes. 
 The majority of the committee found irregularities, frauds, and violence, and after 
 purging the poll there resulted a plurality of 168 votes for the contestant. The 
 miaority admitted some fraud and irregularities, but not enough to overcome 
 sitting Member's plurality. 
 
 At the outset the majority laid stress upon a suspicious increase of the vote 
 as compared with the vote at the Congressional election two years before. In the 
 two years the total vote of the district showed an increase of 5,491 votes. Nearly 
 the whole of this increase went to the sitting Member if the comparison with the 
 vote of his party two years ago was to be taken as an indication. Furthermore, 
 practically all of this increase was in 7 or 8 out of the 35 precincts of the district. 
 And these precincts were those where irregularities and frauds were showTi. The 
 minority of the committee did not admit that the increase of votes was unnatural. 
 
 Various questions were involved in the investigation of this case. 
 
 (a) The law of Missouri required that the judges of elections should take an 
 oath, and that their qualifications should be returned with the return of the votes. 
 It was alleged as a ground of contest that the judges in certain precincts had not 
 taken the oath. The committee came to the conclusion that the burden was on 
 the sitting Member, who claimed the advantage of the votes returned from these 
 precincts, to show that the officers had actually taken the required oath. The 
 committee say: 
 
 The precedents of Congress justify the rejection of polls where the judges of election or clerks 
 neglect or refuse to take the prescribed oath of office. (See McFarland v. Purviance, contested-election 
 cases, p. 131; Same r. Culpepper, ibid., 221; Eastoni). Scott, ibid., 281.) Of the precincts above named 
 there was no e\'idence returned with the return of votes nor before the committee in any shape at 
 the hearing that the judges of election were sworn in either the Harlem House precinct or the Gravois 
 coal mine precinct, nor was there any in respect to the G. Sappington precinct. Had it appeared from 
 the evidence that the election had been fairly conducted at these precincts and there were no traces of 
 fraud, no taint of the ballot box, the committee would not have been willing to have recommended a 
 rejection of these polls. The honest electors should not be disfranchised and their voice stifled from 
 a mere omission of the officers of election to take the oath of office; but where, as in the case of the election 
 districts now vmder consideration, gross frauds are made to appear, some of them of such a character as 
 necessarily to complicate the officers of the election themselves; whore the whole ballot box becomes so 
 tainted as to be wholly unreliable, and it is next to impossible to ascertain what portion of the poll 
 returned is an honest vote; when one judge has been convicted by a jury of a conspiracy to cheat, 
 another can neither road nor write, a third is so deaf as to be incompetent from physical infirmatory to 
 act; where one mingles in the fights of the crowd, encourages illegal voting, forgets the obligations of his 
 position in the zeal and passion of the partisan, it is believed by the committee that they could not do 
 less than require of the sitting Member to prove that these officers had conformed to the law before the 
 votes they had (under these circumstances) returned should be counted. In this connection they cite 
 a late case of contested election in a court of law, the case of Mann v. Cassidy, for the office of district 
 attorney in the city of Philadelphia at an election held October 14, 1856, contested in the court of quarter 
 sessions in that city. 
 
 The committee further say that had the election appeared in other respects 
 regular they would have been constrained to give the sitting Member the benefit 
 of the principle that the acts of officers de facto are valid as regards the public 
 and third persons who have an interest in their acts, as appHed ia the recent New 
 York case of The People v. Cook (14 Barb. Reports, 245). The case of Draper v. 
 Johnston (Twenty-second Congress) was also cited.
 
 § 842 GENERAL ELECTION CASES, 1850 TO 1860. 1097 
 
 The minority of the committee did not admit that these election officers were 
 not sworn, and contended that even if they were not, the principle as to the validity 
 of acts of such de facto officers was well established. "To disfranchise and defeat 
 the declared will of a whole community," say the minority, "for no fault of then- 
 own, or of the candidate on whom their suffrages were bestowed, through the mere 
 omission of a judge or clerk to subscribe lus name to the oath, would be an intoler- 
 able hardship and ^\Ton^." 
 
 842. The case of Blair v. Barrett, continued. 
 
 Discussion of the nature of evidence required to prove the qualifica- 
 tions of voters. 
 
 As to the admission of the declaration of voters challenged as to their 
 qualifications. 
 
 As to the testimony of third persons, objected to as hearsay, in cases 
 of voters challenged for disqualifications. 
 
 (6) The law of Missouri provided for a ballot which should be numbered oppo- 
 site the name of the voter casting it. So, in questions as to the qualifications of 
 voters, it was not a matter of difficulty to ascertain for whom the disqualified voter 
 cast his ballot. As to the nature of evidence admitted by the majority to prove 
 the disqualification of voters, the committee generally admitted evidence of the 
 following description : 
 
 Of the voters whose qualifications have been challenged on both sides, and which the committee 
 decided to reject as disqualified, the evidence touching some of them was from their own lips directly 
 either testified by themselves or by others as their admissions. This latter testimony was admitted in 
 the case of Vallandigham v. Campbell in the last Congress, and has been admitted in many other cases 
 m this countrj' and m England, and was not strenuously opposed in this case. Many voters were charged 
 to be nonresidents— some of the Stale, and more of the particular precinct in which they voted The 
 very nature of the charge shows the difficulty of the proof. It involves to a great extent proof of a nega- 
 tive respectmg persons whose names are not even known; and, except in the few instances where there 
 may be a personal acquaintance with the man in another State or in a distant part of the same State, the 
 proof can hardly be, from the nature of the case, of a positive and direct character. In these cases the 
 committee based their conclusion upon evidence that these men had never voted in that precinct before- 
 were strangers to the old residents of the precinct, to individuals who had acted as judges and clerks of 
 election for a great numlier of years; had no home or business in the precinct known to those best 
 acquainted with its homes and business, and that they had disappeared from the day of election, their 
 whereabouts not having been discovered since even by census takers. Some of these precincts are 
 small, casting ordinarily but two or three hundred votes; and men living within their limits for ten, 
 fifteen, and twenty years see the vote doubled and sometimes tripled by the presence of men seen for 
 the first and last time on the day of election. With this evidence on the one side, so easy of rebuttal 
 by the production of the voter, if a resident, or of some one who knew him to be a resident, yet left 
 uncontradicted, the committee could come to no other conclusion than to reject all such votes as illegal. 
 
 Another class of voters challenged was unnaturalized persons, those of not sufficient residence in 
 the State or precinct, or minors, or having some other disqualification, though not unknown to the wit- 
 nesses, as in the case of nonresidents. As to the qualification of this class of voters, the admission of the 
 voter, the testunony of his acquaintances and family, of those who had heretofore acted as officera of 
 election, and circumstantial testimony of various kinds, was admitted for what it was worth. 
 
 The minority of the committee criticised this testimony as hearsay, indefinite, 
 and inadmissible. The contestant had not been at pains to produce the best evi- 
 dence within his reach, but had generally not called the person cognizant of the 
 fact which he proposed to prove, but some one who heard, perhaps at second hand,
 
 2Q9g PRECEDENTS OF THE HOUSE OF REPKESENTATIVES. § 843 
 
 the declarations of such person. The minority opposed the admission of the declara- 
 tions of third persons, except in the case of the declarations of voters. In that 
 case they were willing to receive them "whenever they constituted a part of the act 
 of votino-, or were offered in corroboration of declarations made in reference thereto." 
 843. The case of Blair v. Barrett, continued. 
 
 The reports of the census taken for a city directory, produced from the 
 archives of the city and proven by the takers, were admitted as prima 
 facie evidence as to qualifications of voters. 
 
 Riots at the polls, even involving election officers, were not given 
 weight except where contributing to impeach the integrity of unsworn 
 election officers. 
 
 An ex parte deposition, tending to show that certain election officers 
 had been sworn, was not admitted. 
 
 There being no doubt as to the intention of voters, the House declined 
 to reject ballots on which the designations of the offices were confused. 
 
 (c) On one kind of evidence admitted by the majority of the committee a sharp 
 issue was joined. The city census of St. Louis had not only enumerated the inhab- 
 itants, but included various statistical matter, such as nationality, length of resi- 
 dence, etc. 
 
 It was to the evidence which the reports of these census takers disclosed that the sitting Member 
 strenuously objected. First, because under no circumstances could they be evidence of facts which 
 they purport to contain; and, secondly, because of the manner of bringing that evidence before the 
 
 committee. 
 
 The committee answer, that, so far as the census takers themselves were witnesses, testifying to 
 the facts contained in their report obtained by themselves, which was the case in very many instances 
 in which this kind of testimony was offered, it is the ordinary case of men making memoranda, or writing 
 down what they know, and then coming into court and testifying to the facts thus acquired, refreshing 
 their memory from the paper thus made out by them. Nor is there any objection to others comparing 
 the poll books with those memoranda thus verified, and testifying to the result of the comparison. But 
 these reports of the census takers, now in the archives of the city, are official documents, and are prima 
 facie evidence of the facts they contain. They are like the land lists of Virginia, which are prima facie 
 evidence that the men whose names are in them, pvu^jorting to be landowners, were voters (see Robert 
 Porterfield v. William McCoy, Contested Election Cases, p. 267; George Loyall v. Thomas Newton, ibid., 
 p. 520); or the list of taxables in Pennsylvania, which were used as evidence for the same purpose in 
 the case of Mann v. Cassidy, before referred to, and votes of men not found on these lists rejected. And 
 the poll books are always prima facie evidence, both of the fact that a man has voted and of the 
 qualification of the voter, without evidence to rebut it stand as the fact. (See Porterfield v. McCoy, 
 Contested Election Cases, p. 267, and First PeckweU on Contested Elections, English, p. 208, and 
 Second Peckwell, p. 270.) 
 
 Nor is there any well-grounded objection to the manner of producing this testimony before the 
 committee; so far as it was brought before the committee by the census taker himself, when testifying 
 to the facts contained in his report, the objection has been already sufficiently answered. And all 
 the evidence so introduced has been from men swearing that the paper exhibited by them is an exact 
 copy pro tanto of the census return. In some instances the commissioner taking the deposition has 
 annexed the identical paper thus sworn to to the deposition, and in others he has himself instead writ- 
 ten out their contents in the answer of the witness. These extracts from the reports of the census 
 takers, used by the committee, thus become pro tanto examined copies. And this is one method of 
 producing copies laid down in the elementary books. (See Greenleaf on Evidence, 1st vol., sees. 483, 
 484; 1 Phillips on Evidence, p. 432.) In the case of Vallandigham v. Campbell, decided in the last 
 Congress, the secretary of state examined the contents of the returns from the several counties com- 
 posing the Third Congressional district of Ohio, computed an abstract of them all. and then certified.
 
 § 844 GENEKAL ELECTION CASES, 1850 TO 1860. 1099 
 
 under his official seal, not a copy of any record return on file in his office, but the abstract, which had 
 been the result of his own examination of the contents of another paper or papers, and that certified 
 abstract was used as evidence. This was carrj'ing this point much further than the admission of the 
 evidence here offered. The sitting Member has also resorted for evidence, both in challenging votes 
 and in rebutting testimony offered by contestant on other points, to this very census, to the introduc- 
 tion of which he objected. The committee, for the foregoing reasons, admitted the testimony, giving 
 to it such weight as its own intrinsic merit and other corroborative testimony in the case, in their opinion 
 entitled it. 
 
 The minority of the committee assailed this testimony at length. The census 
 takers had no right to inquire as to nativity and residence and all the information 
 which they received must be voluntary. Because the name of a voter was not 
 found on the census lists was not sufficient reason for his disqualification. What 
 evidence was there to identify the voter as the bearer of the name on the list? 
 
 (d) As to riot as a reason for rejecting the votes of a precinct, the minority 
 contended that a mere fight or series of fights, even if the election officers should 
 be involved therein, was no ground for throwing out the vote of the precinct. 
 There must be an organized, concerted design to intimidate and overawe, in order 
 to justify the disfranchisement of the whole precinct. The minority cite in view 
 of this contention the cases of Trigg v. Preston and Biddle v. Wing. 
 
 The majority of the committee had not laid stress on the riotous disturbances, 
 except as they had occurred in precincts where the election officers were not sworn, 
 and where they contributed to impeach the integrity of de facto officers. 
 
 (e) The majority of the committee declined to admit an ex parte affidavit, 
 presented by the sitting Member forty days after the parties had been fully heard, 
 and tending to show that certain judges were actually sworn. The disqualification 
 of these judges had been among the grounds of the contest and there had been 
 opportunity to examine witnesses on the point. 
 
 (/) The committee counted certain ballots thrown out by the judges of election 
 which were headed "For Congress, Francis P. Blair;" then followed "For the State 
 
 Senate ;" then right over the list of candidates for representatives to the 
 
 State legislature was, in large letters, "For Eepresentatives for Congress," followed 
 by 13 names. The committee having no doubts that the votes were intended for 
 Mr. Blair, counted them, following the rule of Turner v. Baylies. 
 
 On June 5, 6, and 8,' the report was considered at length by the House, and 
 on the latter day the House, by a vote of 94 yeas to 92 nays agreed to the resolu- 
 tion declaring Mr. Barrett, the sitting Member, not entitled to the seat. 
 
 Then, by a vote of yeas 93, nays 91, the House agreed to the resolution declaring 
 Mr. Blair, the contestant, elected and entitled to the seat. 
 
 844. The Senate election case of James Harlan in the Thirty-fourth. 
 Congress. 
 
 In 1857 the Senate declined to seat a claimant elected by a majority 
 of all the members of the State legislature but not by a joint session of the 
 two Houses. 
 
 A legislature having proceeded without objection to elect a Senator, 
 failure to comply with requirements of a directory State law did not 
 vitiate the election. 
 
 ' Journal, pp. 1010, 1014, 1034-1038; Globe, pp. 2645, 2678, 276^.
 
 1100 PKECEDENTS OF THE HOUSE OF REPRESENTATIVES. § 843 
 
 On January 12, 1857,' after a long debate, the Senate by a vote of yeas 28, 
 nays 18, declared James Harlan not entitled to his seat as a Senator from Iowa. 
 This action was taken on the recommendation of the Committee on the Judiciary. 
 This was a case of involving a construction of the meaning of the word "legislature" 
 in that clause of the Constitution providing for the election of United States Senators. 
 The joint session of the two houses of the Iowa legislature had failed to elect; but 
 finally an election was effected by the House of Representatives in conjunction 
 ■with certain Members of the Senate. A quorum of the Senate was not present, 
 but enough members of the legislature voted for Mr. Harlan to give him a majority 
 of the whole number of the members of the general assembly. The question 
 therefore arose as to whether the term "legislature" meant the individual members 
 or tho bodies composing it. After long debate the Senate decided as above 
 recorded.^ 
 
 1 Third session Thirty-fourth Congress, Globe, pp. 112, 221, 248, 260, 287, 299; 1 Bartlett, p. 621; 
 Senate Election Cases, Sen. Doc. No. 11, special session Fifty-eighth Congress, p. 235. 
 
 2 On March 11, 1857, third session Thirty-fourth Congress, Appendix of Globe, pp. 387, 391; 1 
 Bartlett, p. 627) the Senate Committee on the Judiciary reported on certain charges of irregularities 
 in the election of Mr. Simon Cameron, of Pennsylvania. One of these irregularities is thus disposed 
 of by the report: "It appears from the journal of the Senate that the appointment of a teller and the 
 nomination of candidates, and the communication to the other house of the appointment and nomi- 
 nation so made, all took place on the day of the election, instead of one day previous to the election, 
 as required by the law of the State; but your committee regard this provision of law as purely directory 
 in its nature, and are of opinion that a failure to comply with this formality would under no circum- 
 stances suffice to vitiate an election otherwise legal and valid; but where, as in the present case, both 
 houses proceeded without objection from any source to perform their constitutional duty of electing a 
 Senator, the necessity of complying with any particular forms required by law may fairly be considered 
 as waived by common consent, and it is entirely too late, after the result of the voting has been ascer- 
 tained, to raise a question as to the mode of proceeding." On March 13 the report, which contained 
 other features, was debated and agreed to without division. The debate was on other features. 
 
 o
 
 r»ATC" r>i icr 
 
 University of CalHomia 
 
 SOUTHERN REGIONAL LIBRARY FACILITY 
 
 405 Hilgard Avenue, Los Angeles, CA 90024-1388 
 
 Return this material to the library 
 
 from wrtilch It was borrowed. 
 
 'JAN 2 5 
 QUARTER
 
 D 000 471734