Article 1, Section 5, Clauses 1--4

Document 17

House of Representatives, Evidence in Contested Elections

Mr. Sitgreaves did not understand the object which the mover of these resolutions had in view. He knew not whether he meant to confine the operation of his rule to the present House of Representatives only, or to all future Houses. From the language of the first resolution he judged the latter was his intention. As it was his opinion, therefore, that any attempt of theirs to bind future Houses would be perfectly nugatory, he should move to strike out the words from, "If it be," to "given," (in the first clause.) This resolution will then confine the operation of the rule to the elections which may take place during the fifth Congress. By the Constitution every House was to judge of the elections and returns of its own members. It was not in the power of any House to prescribe rules for a succeeding one, for this reason the rules which governed a preceding House were always revised by the succeeding one. If they were to prescribe rules which were to be binding on future Houses, it could only be done by an act of the whole Legislature, which would certainly be exceptionable, as it would give to the President and Senate a power over the rules for governing their proceedings, which, by the Constitution, they were alone the judges of. He thought his ideas on this subject correct; if they were, he doubted not the motion which he had made would be agreed to.

Mr. Harper said, if the idea of the gentleman last up was correct, his motion would doubtless be acceded to, though he did not go far enough, because, in that case he should have moved to have struck out the whole clause; because, if the rules proposed were not to have a permanent effect, they would be perfectly nugatory. But he apprehended his friend had not attended to a distinction which he thought a plain one. It was this: the power to establish rules for the taking of evidence, and that of judging of the evidence after it was taken. This House could not say it would admit members under such and such disqualifications, but an agreement to the mode of taking evidence was very different from the qualifications themselves. It was essentially necessary that Legislative and Judicial powers should be kept distinct, yet it was not thought an interference with the Judicial authority for the Legislature to direct the mode of taking evidence in certain cases. Nothing could be more clear than this distinction. It could not be said, therefore, that because the whole Legislature directed the mode of taking evidence in cases of contested election, that the President and Senate interfered with the Constitutional direction that every House should be the judge of its own rules. He was of opinion that a law was necessary, and a law of permanent nature, to which he could see no reasonable objection. He allowed that it would be unconstitutional for the President or Senate to interfere with their rules or elections, but when they came to make a law which was to operate upon the whole community, their interference was necessary and proper. If these ideas were sound, and he thought they were, the proposed amendment would be rejected.

Mr. N. Smith said the motion now before them was founded upon an idea that permanent rules could not be made for taking evidence in cases of contested elections. He had frequently heard it said that rules could not be made to be binding any longer than whilst the House existed which formed them. For himself he never conceived this opinion to be correct. That it was highly important that permanent regulations should be made on the subject in question, every one must admit. It became of importance, therefore, to know whether it had the power of making them. When he spoke of permanent rules he would not be understood to mean that any rules should be longer permanent than until the time came when the House of Representatives should wish to rescind them.

The idea which led to the conclusion of the gentleman from Pennsylvania was this: that every new Congress occasioned a new House of Representatives; that whenever the members were newly elected there was a new House of Representatives. He did not believe this doctrine to be correct. The House of Representatives, in his opinion, always existed; and there was no period at which it could be said there was not a House of Representatives in being. He never believed it was broken in pieces once in two years; for when the time of one set of members expired, that of another set commenced; so that it was the nature of a corporation, which always existed. He did not think there had been four Houses of Representatives since the commencement of the present Government, but that the whole had been one uninterrupted House. He thought this was the view which the Constitution gave of the subject, as it spoke of it always as a permanent body. In the same way the President and Senate were permanent. If this were not the case, and every election made a new House, there was a time when the Senate was only two-thirds of a Senate (when one-third went out of office.) This idea, therefore, could not be right. There was no difficulty, therefore, in forming permanent rules, since they were made to govern the House and not the individual members. With respect to those things which each branch of Government had the power of doing for itself, each could establish its own rules; but what related to the whole Government must be the act of the whole. The gentleman from Pennsylvania had said that each House had the power of judging of its own elections. This, he apprehended, did not refer to different Houses of Representatives, but to the House of Representatives and the Senate, as each House was always considered by the Constitution as a permanent body. He was, therefore, opposed to the amendment.

Mr. Nicholas believed this was a subject in which they should never advance far enough to come to a decision. Very long and very plausible arguments might be adduced on both sides of the question, which would produce different effects on those who heard them; but, he thought the question before them might be acted upon, without coming to a question on that point. He supposed, if any case of contested election came before the House, and the evidence was taken in such a way as to ascertain the truth, they should be at liberty to proceed to the examination of the case; and, therefore, all that was wanting, was to call in the power of the General Legislature to authorize the attendance of witnesses to deliver their testimony. Let that testimony be taken upon established and acknowledged rules, which satisfy every man's mind, and it will carry conviction with it, that it is proper. The necessity of adopting some mode of this kind was evident, as it was a great grievance that persons disputing elections had to come there to learn the mode of doing it, before they could proceed to take evidence. Indeed, it was putting the power of sending members to that House in the hands of returning officers. He had no doubt that the Constitution gave them power to make a law on the subject; if necessary the necessity of the case would show the reasonableness of it; but he did not know that a law was requisite; he thought a rule of the House to the effect he had mentioned, would cure the evil complained of.

Mr. Sewall believed, that the great difficulty on the subject arose from in the form which it presented itself, which had introduced the question, whether that House was a perpetual body, or not. He must confess that he differed in opinion altogether from the gentleman from Connecticut, (Mr. N. Smith,) that this House was a perpetual body. He thought the Constitution had shown, that though there was always a House of Representatives, yet, that every House had only two years duration; but, he believed, in determining the real object of this motion, there was no necessity for coming to a decision on this point.

The Founders' Constitution
Volume 2, Article 1, Section 5, Clauses 1--4, Document 17
http://press-pubs.uchicago.edu/founders/documents/a1_5s17.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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