tution; it would vest the supreme authority in places where it was never contemplated.

Mr. SHERMAN observed that the convention were very unanimous in passing this clause; that it was an important provision, and, if it was resigned, it would tend to subvert the Government.

Mr. MADISON was willing to make every amendment that was required by the States, which did not tend to destroy the principles and the efficacy of the constitution. He conceived that the proposed amendment would have that tendency; he was, therefore, opposed to it.

Mr. SMITH, of South Carolina, observed that the States had the sole regulation of elections, so far as it respected the President. Now, he saw no good reasons why they should be indulged in this, and prohibited from the other; but the amendment did not go so far; it admitted that the General Government might interfere whenever the State Legislature refused or neglected; and it might happen that the business would be neglected without any design to injure the administration of the General Government; it might be that the two branches of the Legislature could not agree, as happened, he believed, in the Legislature of New York, with respect to their choice of Senators at their late session.

Mr. TUCKER objected to Mr. Sedgwick's motion of amendment, because it had a tendency to defeat the object of the proposition brought forward by his colleague, (Mr. BURKE.) The General Government would be the judge of inadequate or improper regulations; of consequence, they might interfere in every law which the States might pass on that subject. He wished that the State Legislatures might be left to themselves to perform every thing they were competent to, without the guidance of Congress. He believed there was no great danger, but they knew they would pursue their own good as well when left to their discretion, as they would under the direction of a superior. It seemed to him as if there was a strong propensity in this Government to take upon themselves the guidance of the State Governments, which, to his mind, implied a doubt of their capacity to govern themselves. Now, his judgment was convinced that the particular State Governments could take care of themselves, and deserved more to be trusted than this did, because the rights of the citizens were more secure under it.

It had been supposed by some States that electing by districts was the most convenient mode of choosing members to this House. Others have thought that the whole State ought to vote for the whole number of members to be elected for that State. Congress might, under like impressions, set their regulations aside. He had heard that many citizens of Virginia (which State was divided into eleven districts) supposed themselves abridged of nine-tenths of their privileges, by being restrained to the choice of one man instead of ten, the number that State sends to the House. With respect to the election of Senators, the mode is fixed; every State but New York has established a precedent; there is, therefore, but little danger of any difficulty on this account. As to New York, she suffers by her want of decision; it is her own loss; but probably they may soon decide the point, and then no difficulty can possibly arise hereafter. From all these considerations, he was induced to hope Mr. Sedgwick's motion would be negatived, and his colleague's agreed to.

Mr. GOODHUE hoped the amendment never would obtain. Gentlemen should recollect there appeared a large majority against amendments, when the subject was first introduced, and he had no doubt but that majority still existed. Now, to guard against this evil, he wished the Federal Government to possess every power necessary to its existence.

Mr. BURKE was convinced there was a majority against him, but, nevertheless, he would do his duty, and propose such amendments as he conceived essential to secure the rights and liberties of his constituents. He begged permission to make an observation or two not strictly in order; the first was on an assertion

that had been repeated more than once in this House, "that this revolution or adoption of the constitution was agreeable to the public mind, and that those who opposed it at first are now satisfied with it." I believe, sir, said he, that many of those gentlemen who agreed to the ratification without amendments, did it from principles of patriotism; but they knew, at the same time, that they parted with their liberties; yet they had such reliance on the virtue of a future Congress, that they did not hesitate, expecting that they would be restored to them unimpaired as soon as the Government commenced its operations, conformably to what was mutually understood at the sealing and delivering up those instruments. It has been supposed that there is no danger to be apprehended from the General Government, of an invasion of the rights of elections. I will remind gentlemen of an instance in the Government of Holland. The patriots in that country fought no less strenuously for that prize than the people of America; yet, by giving to the States general powers, not unlike those in this constitution, their right of representation was abolished. That they once possessed it, is certain; and that they made as much talk about its importance as we do; but now the right has ceased, all vacancies are filled by men in power. It is our duty, therefore, to prevent our liberties from being fooled away in a similar manner; consequently, we ought to adopt the clause which secures to the General Government every thing that ought to be required.

Mr. MADISON observed that it was the State Governments in the Seven United Provinces which had assumed to themselves the power of filling vacancies, and not the General Government; therefore, the gentleman's application did not hold.

The question on Mr. Sedgwick's motion for amending, was put, and lost.

The question was then put on Mr. Burke's motion, which was decided in the negative. Ayes, 23. Noes, 28.

At the first session of the nineteenth Congress, a proposition was made to alter the election laws of several of the States in an important particular, the nature of which alteration will appear from the resolution itself, which is as follows:

DECEMBER 22, 1825.

On motion of Mr. Allston, of North Carolina,

"Resolved, That a committee be appointed to inquire into the propriety of altering the election laws of the several States, so as to provide that no election shall take place for members of the House of Representatives of the United States until the term of service shall have expired for which they had been elected, and that the committee have leave to report by bill or otherwise."

This resolution was referred to a select committee, who, on the 16th of May, 1826, reported "that it is inexpedient at this time to make any change in the election laws of the several States."

Thus the mode of electing members of Congress stands now as it did under the constitution as originally formed. But whatever be the rules or laws of election, and these are nearly as various as the States of the Union, contests will arise as to the practical application of them; the power of deciding on which is conveyed in this brief clause of the constitution: "Each House shall be the judge of the elections, returns, and qualifi

cations of its own members. Of the manner in which this judgment is exercised, and the forms in which the evidence is produced, some notice will now be given.

Of the Committee, and the evidence in cases of Contested Elections.

On the institution of a Committee of Elections at the commencement of the first Congress, it was, by a resolution of the House of Representatives, made the duty of the said committee "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."

Notwithstanding this delegation of power to the committee, it will be seen, from a view of their early proceedings, that they were in the frequent habit of referring to the House for specific directions as to the mode in which testimony should be taken. Sometimes, upon their own authority, as in the case of Latimer vs. Patton, (1st session of the 3d Congress,) they instructed the parties how their testimony should be taken, and in other cases, as that of Jackson vs. Wayne, this instruction emanated directly from the high authority of the House. In some instances testimony appears to have been taken orally before the committee; and it was probably in reference to that mode of proof that it was, on the 12th of December, 1793,

"Ordered, That the standing Committee of Elections have power to send for persons, papers, and records, for their information.”

On the 28th of December, 1795, it was, on motion,

"Ordered, That, in addition to the powers before given to the Committee of Elections, they be authorized to direct the taking of depositions in any cases where it may be impracticable or inconvenient for the witnesses to give their personal attendance, and to prescribe the mode."

The inconvenience both of oral proof and of written testimony taken in the various forms in which interested parties might suggest, was soon felt, and as early as the 31st of October, 1791, a proposition was made, and a committee appointed, to report a regular and uniform mode of taking testimony in cases of contested elections; but no action of the House appears to have grown out of this appointment.

On the 16th of February, 1796, a resolution was submitted to the House for prescribing the mode in which testimony should be taken, but it was not acted on. Similar but more specific resolutions were offered on the 9th of February, 1797, and com

mitted to a Committee of the Whole House, but no report upon them appears to have been made.

On the 6th December, 1797, a debate arose in the House, upon a series of resolutions offered, relative to this subject, by Mr. HARPER, of South Carolina, which, together with the resolutions, is as follows:

Mr. HARPER called for the order of the day on certain resolutions which he had offered to the consideration of the House, on the subject of taking evidence in cases of contested elections.

The motion was agreed to, and the House accordingly resolved itself into a Committee of the Whole on that subject, Mr. DENT in the chair. The resolutions were as follow:

"Resolved, That the method of taking evidence to be adduced in the trial of contested elections for the House, shall, hereafter, be as follows:

"1st. The party intending to contest an election shall give notice of such intention to the person returned. If it be an election in the usual course, this notice shall be given at least weeks before the time when the said person is to

take his seat; if not in the usual course, but to fill a vacancy, then the notice shall be given within days after the persons appointed to hold the election shall have made known publicly the state of the poll. The notice shall be delivered in writing, at the usual residence of the person returned; and, if he be absent, shall be left there open.

"2dly. That the party intending to make examinations, shall then apply to some justice or judge of the United States, or some chancellor, justice, or judge of a supreme, superior, or county court, or court of common pleas of any State, or some mayor or chief magistrate of a town or city, and shall obtain a notification, under his hand and seal, directed to the opposite party, and requiring him to attend by himself, or his attorney duly authorized, and cross-examine the witnesses. This notification shall state the time and place of examination, and the names of the witnesses; and it shall be served on the opposite party, or his attorney duly authorized, as either may be nearest to such place; provided either is within one hundred miles of it. For attendance, after receiving the notification, one day, exclusive of Sunday, shall be allowed for every twenty miles.

"3dly. In all cases where either party shall give notice to the other of his having appointed an attorney for the purpose aforesaid, it shall be necessary to serve the abovementioned notification on the attorney.

"4thly. Every person deposing shall make oath or affirmation to testify the whole truth, and shall subscribe the testimony by him or her given, which shall be reduced to writing only by the magistrate taking the deposition, or by the deponent, in his presence. The deposition, so taken, together with a certificate of the notices, and proof of the service of them, shall be sealed up by the magistrate who took it, and transmitted to the Speaker of the House.

"Resolved, That the examinations of witnesses taken in this manner, and no other, shall hereafter be admitted on trial of contested elections.

“Resolved, That copies of any papers recorded in any office of record, provided those copies be attested under the hand and seal of the recording officer, shall be admitted at all such trials, in the same manner as the originals would be, if produced. In like manner, copies of any other papers of a public nature, and remaining in the possession of a public officer, shall be admitted, when attested under the hand and seal of that officer.

'Resolved, That copies of these resolutions shall be forwarded forthwith to the Executive of every State, with a request that they will cause the managers of every election in their respective States to be furnished with at least one copy."

Mr. HoSMER moved to amend the first resolution, by adding, after the word 66 election," ," in the eighth line," or to canvass the votes." Agreed.

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," (printed above in italic.) 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 disqualifications, but an agree ment as to the mode of taking evidence was very different from the qualifications themselves. It was essentially necessary that legislative and judicial power 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 elections, the President and Senate interfered in 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 a 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 of elections; but when they came to make a law which was to operate upon the community, their interference was necessary and proper. If these ideas were well founded, 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 they had the power to make 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 Represen