Article 1, Section 6, Clause 2

Document 7

Hinds' Precedents of the House of Representatives, sec. 499

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 publicly 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 30th day of the same month. Mr. Herrick, therefore, 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 Massachusetts, Orsamus C. 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 violated. After referring to the cases of John P. Van Ness and Philip Barton Key and certain 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 Commons 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 thereafter hold an office incompatible with membership, and upon resigning his office he may immediately qualify 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 [seat]. 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 until after such time.

A very particular case occurred on the 10th of February, 1620. Sir John Leech having been elected a member of the House of Commons, and appearing to take the oaths of supremacy and allegiance, 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, still declining to take the oath, was refused [Volume 2, Page 367] admittance 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 qualification 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 similar 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 reasonable 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 Maryland, occasioned by the resignation of William 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 commences. This is evident from the consideration that all 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 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 April, 1814, Doctor Willoughby 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 Willoughby 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 Representative 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, if a person duly qualified be elected and returned and die before the organization of the House of Representatives, we do not think he 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 have 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 [Volume 2, Page 368] 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 Members. 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 after the next Congress was actually in session. This construction, therefore, is not only absurd, 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 privilege 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 privilege 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:

Resolved, That Samuel Herrick is entitled to a seat in this House.

On March 19 this report, which had been committed 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 quorum to do business, but a smaller number 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 Representatives 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 Mr. 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 declaring Mr. Herrick entitled to the seat was then adopted--yeas, 77, nays 70.

The Founders' Constitution
Volume 2, Article 1, Section 6, Clause 2, Document 7
http://press-pubs.uchicago.edu/founders/documents/a1_6_2s7.html
The University of Chicago Press