ordinance of the 13th July, 1787, in as full and ample a 1801. 7th CONGRESS, manner as the same are possessed and enjoyed by the peo- 1st SESSION. ple of the Northwestern Territory.

"That, by the act of Congress passed the 10th of May, Report of the 1800, entitled 'An act supplemental to the act entitled An committee. act for an amicable settlement of limits with the State of Georgia, and authorizing the establishment of a Government in the Mississippi Territory," it is, in the first section thereof, enacted, 'that so much of the ordinance of Congress of the 13th July, 1787, and the act of Congress of the 7th August, 1789, providing for the Government of the territory of the United States northwest of the Ohio, as relates to the organization of a General Assembly therein, and prescribes the powers thereof, shall forthwith operate and be in force in the Mississippi Territory.'

"From which ordinances and acts your committee are of opinion, and do report, that the Mississippi Territory is entitled to elect a Delegate to Congress, with the right to debate, but not to vote.

"Your committee further report, that, from an examination of the credentials of Narsworthy Hunter, it is the opinion of your committee that the said Narsworthy Hunter is duly elected by the General Assembly of the Mississippi Territory as a Delegate to the seventh Congress of the United States."

This report was committed to a Committee of the Whole House, and on the 21st December was therein amended, as follows:

"Resolved, That the Mississippi Territory is entitled to elect a Delegate to Congress, with a right to debate, but not to vote."

titled to his

Your committee further report, that, from an examination of the credentials of Narsworthy Hunter, it is the opinion of your committee that the said Narsworthy Hunter is duly Mr. Hunter enelected by the General Assembly of the Mississippi Territory a Delegate in the seventh Congress of the United States. The resolution as reported was agreed to by the House. Yeas, 77; Nays, 8.

Ordered, That the residue of said report of the Committee of the Whole House do lie on the table.

Note.

Mr. Hunter had taken his seat on the 7th.

seat.

Committee to

has forfeited

his seat.

CASE XVIII.

JOHN P. VAN NESS, of New York.

[The acceptance by a member of any office under the United States, after he has been elected to, and taken his seat in Congress, operates as a forfeiture of his seat.

As to the effect of holding after election, and before taking the seat, see the case of Hammond vs. Herrick, post.]

The inquiry in this case into the right of the sitting member to hold his seat, arose simply on the motion of a member, and without the presentation of any petition or memorial.

DECEMBER 27, 1802.

Mr. DAVIS, of Kentucky, observed that he was of opinion that a member of the House retained his seat contrary to the spirit and sense of the constitution; it therefore became his duty to offer a resolution for instituting an inquiry into the subject, in doing which, he disclaimed all personal view. He then made the following motion:

"Resolved, That the Committee of Elections be, and they inquire if he are hereby, instructed to inquire whether John P. Van Ness, one of the members of this House from the State of New York, returned by said State to serve as one of its members in the seventh Congress of the United States, has not since his election as a member of this House, and since he occupied a seat as a member, accepted of, and exercised the office of a major of militia, under the authority of the United States, within the Territory of Columbia, and thereby forfeited his right to a seat as a member of this House."

Remarks on the

Mr. MITCHELL, of New York, considered the point interesolution for resting in two relations; that which involved the decision of an inquiry. a principle, and that which went to deprive the State (New York) of one of her members. For these reasons he hoped the business would not be immediately pressed. He acknowledged that this was not the first intimation he had received of the contemplation of such a motion; but he had

entertained a hope that the gentleman with whom it origi- 1802. nated, had, on reflection, considered it not inconsistent with 7th CONGRESS, his duty to abandon it.

2d SESSION.

Mr. DAVIS replied that he felt no disposition to press a On the resoludecision. He had communicated, the first day he took his tion to inquire seat, his ideas on the subject to certain members, the friends of the sitting into the right of the gentleman implicated by the resolution, in hopes that member. he would resign. He now entertained no wish to push the business. He supposed, however, that the resolution would go to the Committee of Elections. He repeated that he was governed by no personal prejudice, but entirely by a sense of duty. He concluded with saying he was in favor of the question of reference being immediately taken. But on Mr. MITCHELL repeating his desire for some delay, Mr. DAVIS agreed to let the resolution lie till to-morrow.

DECEMBER 29, 1802.

Mr. DAVIS having called up his resolution, Mr. VAN NESS said that, so far as the decision of the House might affect him personally, he felt little concern; but so far as it affected him as a Representative of an important State, he was not so indifferent. He had no objection whatever to the proposed inquiry being made; as it involved the decision of an important principle, it deserved great attention. He had no doubt of the inquiry being made with that candor and fairness which, in most cases, characterized the proceedings of the House. He was far from imputing any impure motives to the mover or seconder of the resolution. It would be as derogatory in him to impute, as in them to entertain any views dishonorable or base. He had risen barely to state his wish that an inquiry might be made.

The resolution was then adopted without a division.

On the 11th January, 1803, the Committee of Elections made the following report:

Elections.

"That, from the free concessions and agreement of the Report of the said member, it appears to your committee that he has ac- Committee of cepted and exercised the office of a major of the militia, under the authority of the United States, within the Territory of Columbia, and that a paragraph in the sixth section. of the first article of the constitution, which expressly provides that no person holding any office under the United States shall be a member of either House during his continuance in office,' does, in the opinion of your committee, render the acceptance and exercise of the office aforesaid incompatible with the holding at the same time of a seat in the House.

"Your committee, therefore, ask leave to submit to the House the following resolution, to wit:

"Resolved, That John P. Van Ness, one of the members of this House, having accepted and exercised the office of

1803.

major of militia, under the authority of the United States, 7th CONGRESS, within the Territory of Columbia, hath thereby forfeited his 2d SESSION. right to a seat as a member of this House."

JANUARY 17, 1803.

The report being under consideration in Committee of the Whole,

Speech of sitMr. VAN NESS said he would make a remark or two that ting member. would perhaps remove any impressions of indelicacy, on his part, in retaining his seat under the circumstances in which he was placed. He considered himself as standing on that floor, not as a private individual, but as a Representative of New York, and as holding a trust which he was not authorized to abandon before a constitutional decision should be made. His constituents had placed him there as the guardian of their rights; and that trust he could not desert without a constitutional decision being made. If that decision should be adverse to his retaining his seat, in retiring from the House he should feel no regret but at leaving his constituents unrepresented during the remainder of the session, at not having discharged all the business assigned him by the Chair, and at ceasing to associate with gentlemen, who, for the most part, he respected. In a pecuniary view, the relinquishing his seat could not in the least affect him; nor should he consider it disreputable to leave a body without any imputation of dishonor or impropriety.

The reasons he should offer to the committee for retaining his seat, were few and simple. He thought the fair, liberal, and sound construction of the constitution did not affect his case; that the incapacitating provision only applied to civil offices. The constitution was only a digest of the most approved principles of the constitutions of the several States, in which the spirit of those constitutions was combined. Not one of those constitutions excluded from office those who had accepted military appointments, except in the regular service. He, therefore, felt a full conviction that it was never the intention of the framers of the constitution of the United States to exclude militia officers from holding a seat in Congress; and, however important it might be to adhere to the letter of the constitution, yet, when the spirit of it was so clear, as it appeared to him, it ought to have weight in the decision of the question before the committee, which might affect objects of great importance. The right of every portion of the Union to a representation in that House, was very important, and ought to be respected in all cases which may either directly or indirectly affect it. Gentlemen, therefore, ought to reflect before they deprive a part of the Union of this important right.

Mr. VAN NESS here read the second paragraph of the sixth section of the first article of the constitution, as follows:

2d SESSION.

"No Senator or Representative shall, during the time for 1803. which he was elected, be appointed to any civil office under 7th CONGRESS, the authority of the United States, which shall have been created, or the emoluments whereof shall have been increas- Speech of the ed during such time; and no person holding any office un- sitting memder the United States, shall be ha member of either House during his continuance in office."

From the language of the first part of this paragraph, Mr. VAN NESS inferred that it was the intention of the framers of the constitution that the restriction should apply to civil officers only. Gentlemen may ask, shall we, by our construction, countenance an introduction into this House of regular military officers? But to this it may be replied, that full confidence may be placed on the good sense of the people to prevent this effect. The framers of the constitution, therefore, thought this a power that might be safely left to the discretion of the people.

The constitution only applied to two alternative cases. An individual holding a seat in this body could not be appointed to a civil office; and an individual holding a civil office could not, consequently, hold a seat here. This was all that it was necessary to provide for.

There was another ground. He could not conceive that such an office as he held was comprehended in the constitution. He was not an officer of the United States, but of a district, which, locally considered, might be looked upon as an island placed in the sea. He could not think that the constitution meant to exclude officers of dependent colonial districts. It had never been contemplated that such colonial possessions should be represented on this floor. Why, therefore, apply the exclusion to them?

One great reason for this provision of the constitution was, to prevent corruption. Where could be the danger of this from an office without the least emolument? The inconvenience of exclusion, in such cases, too, would be glaring. Its necessary effect would be an inability to get those to accept commissions in the militia who were proper for the stations.

There was another idea entitled to weight. If it be determined that the militia officers of this district shall be excluded, the same rule will apply to all militia officers appointed by the Governors of the Territories of the United States. Do you not also exclude the militia officers of the States, who, though appointed in the States, are subject to the command of the United States? A construction of the constitution, productive of such effects, he considered unsound, and contrary to the intention of its framers.

Had he supposed that the acceptance of an office in the militia would have interfered with his seat in that House, he would never have accepted it. He had never entertained a doubt on this point until broached in the House. Since then, he had heard various opinions. By what he

ber.