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Article 1, Section 2, Clause 4



Document 2

House of Representatives, Representative from Maryland

22--23 Nov. 1791Annals 3:205--7, 209

[22 Nov.]

The House resolved itself into a Committee of the Whole House on the report of the standing Committee of Elections, to whom was referred the Letter from the Executive of the State of Maryland, containing the resignation of William Pinkney, a member returned to serve in this House for the said State; and also a certificate of the election of John Francis Mercer, in the room of the said William Pinkney.

The law of the State of Maryland regulating elections being called for, was produced and read; by which it appeared that the Governor and Council of that State were authorized to fill up vacancies in the representation of that State in Congress.

Some objections having been offered against accepting the report,

Mr. Seney observed, that the case appeared to him to be so plain that he was surprised to find gentlemen objecting to an acceptation of the report of the committee. He then stated the whole process of the business, in the resignation of Mr. Pinkney and the election of Mr. Mercer, in which the law of the State had been strictly adhered to. He concluded by saying, that two cases in point had already occurred in the State of Connecticut, and no difficulty respecting them had taken place in the House.

Mr. Giles said, that he was a member of the select committee which had made the report; and, from an accurate attention to all the circumstances of the case, he was led to think the report a very improper one. From recurring to the Constitution, he was of opinion that a resignation did not constitute a vacancy. The Constitution speaks only of vacancies in general, and does not contemplate one as resulting from a resignation. Adverting to the British House of Commons, he observed that in that body there could be no resignation. This is an established principle. The people having once chosen their representatives, their power ceases, and consequently the body to which the resignation ought to be made no longer exists. From the experience of the British Government in this respect, he argued against a deviation from this rule. He showed from the Constitution, that the Executives of the States who are empowered to fill vacancies, are not at all authorized to declare the existence of such vacancies; for, if they are to judge in the case, the whole power is invested in them of determining the whole business of vacancies--an idea that materially and essentially affects the privileges of the members of the House. He remarked that, even by the law of Maryland, the requisite steps had not been pursued by the Executive of that State. He concluded by saying that, if the principles he had advanced were just, he hoped the report would not be accepted.

Mr. Smith (S. C.) had had his doubts on the report; but, on more mature consideration, he was convinced that on account of the inconvenience which would result from rejecting it, and from other considerations, it was proper to adopt it, but not without a full discussion. He then stated some particulars to show that the vacancy which had occurred on this occasion could not properly be called a resignation. Mr. Pinkney had never taken his seat, nor the requisite oath. He said that there was no analogy between the Parliament of Great Britain and this House; the mode of issuing the writs originally, and of filling up vacancies, is essentially different. No parts of the Constitution prohibits a member from resigning, and for convenience it ought to be concluded that he may resign. The public interest may suffer extremely in cases of sickness or embarrassments, which may prevent a member from attending. This argument from the body's not existing to whom the resignation ought to be made, will apply to the President of the United States, whose resignation is expressly mentioned in the Constitution. The objection urged from the Executives of the States judging of vacancies, he conceived had no great force, for Congress would finally judge in every case of election. It is uncertain how the practice of the British Parliament originated. Blackstone says nothing of resignations. When a member wants to resign in that Legislature, he gets appointed to some fictitious office which disqualifies him from sitting in the House. He thought it best to establish some precedent, rather than oblige members who may wish to resign to have recourse to some familiar method, by accepting of some appointment in the State which is incompatible with a seat.

Mr. Murray said he was in favor of accepting the report, both on account of propriety and conveniency. Vacancies may happen from various causes--by resignation, by death, or by expulsion--the Executive of the State is the proper judge in the first case. He stated certain differences between a resignation after a person has taken his seat, and a resignation before that event. In the former case, Congress will of course give notice to the Executive of the State; in the latter, the Executive alone can take cognizance of the resignation. He stated the extreme inconveniency which would result from the ideas of the gentleman from Virginia, as it would respect the State of Georgia. He then stated several particulars to show that Mr. Pinkney was not a member of the House agreeably to the Constitution, and therefore the House cannot proceed with him as one. He said that we ought to be willing to derive information from the experience of every country; but he conceived that no precedents could be drawn that would apply in the present case from a country which had none, to one which had a Constitution that so clearly defined and guarded the rights of the citizens. The custom which had been mentioned as obtaining in that country, arose from a wish to prevent a frequency of elections. From what had been offered by the gentleman from South Carolina, and the ideas he had suggested, he hoped the committee would be induced to accept the report.

Mr. Williamson said, that it appeared to him that the Constitution contemplates that a member may resign. He read the clause, which says that no member of the Legislature shall accept of an office made during the time for which he was chosen--from hence he inferred that resignations were clearly contemplated.

Mr. Gerry said, that he had heard nothing to show that Mr. Pinkney had ever accepted of his appointment, and therefore it ought to have been expressed that he had declined; but, granting he had resigned after accepting his appointment, he asserted that nothing had been offered to prove that resignations might not take place in one House as well as in the other; and the Constitution plainly expresses that a Senator may resign. The House of Commons originated with the Kings, who formed that body to control the Lords; and hence arose the prohibition against resignations, as they would weaken the body, and the expense of a new election would fall on the King. With respect to the Executive declaring improper vacancies, he observed that Congress was invested with full power to control the Executives of the States in respect to such declarations.

Mr. Seney observed, upon a distinction made by Mr. Giles between a resignation on the part of a Senator and a Member of the House, he supposed a resignation in either would equally vacate a seat, and that no difference did really exist.

Mr. Sedgwick observed that, if a power of adjudication was vested in the Executives of the States to determine on a vacancy in cases of resignation, it would involve this consequence, that a power of judging of vacancies in all possible cases would be the necessary result. He thought the proposition involved the most serious effects with respect to the privileges and independency of this House.

This subject was further discussed the next day, and ended in an acceptation of the report of the committee, which was in favor of Mr. Mercer's election.

[23 Nov.]

The House again resolved itself into a Committee of the Whole House on the report of the Standing Committee of Elections, to whom was referred the letter from the Executive of Maryland, containing the resignation of William Pinkney, a member returned to serve in this House for the said State; and also a certificate of the election of John Francis Mercer, in the room of the said William Pinkney; and, after some time spent therein, the Chairman reported that the committee had again had the said report under consideration, and made an amendment thereto; which said report and amendment were twice read and agreed to by the House, as follows:

"It appears that, at an election held for the State of Maryland, on the first day of October, one thousand seven hundred and ninety, William Pinkney was duly elected a Representative for that State, to serve in the House of Representatives of the United States; that the certificate of his election has been duly transmitted by the Executive thereof, and heretofore so reported by your committee; that, by letter, dated the twenty-sixth of September, one thousand seven hundred and ninety-one, directed to the Governor and Council of that State, William Pinkney resigned that appointment; and that, in consequence of such resignation, the Executive issued a writ for an election, to supply the vacancy thereby occasioned, and have certified that John Francis Mercer was duly elected, by virtue of that writ, in pursuance of the law of the State of Maryland in that case provided.

"Resolved, That it is the opinion of this committee that John Francis Mercer is entitled to take a seat in this House as one of the Representatives for the State of Maryland, in the stead of William Pinkney."


The Founders' Constitution
Volume 2, Article 1, Section 2, Clause 4, Document 2
http://press-pubs.uchicago.edu/founders/documents/a1_2_4s2.html
The University of Chicago Press

Annals of Congress. The Debates and Proceedings in the Congress of the United States. "History of Congress." 42 vols. Washington, D.C.: Gales & Seaton, 1834--56.

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