1804.

ercised by us. This is the language of the constitution. It is

8th CONGRESS, the language of common sense. If we have the power, 1

2d SESSION.

Decision of the

ask how it is to be exercised. Shall we erect ourselves into a high court of criminal judicature with censorial powers? Shall we say the Governor of Pennsylvania acted from corrupt motives? That he was influenced by a desire to control the district of Washington in opposition to the people? Unless we do, sir, I see no ground for interposition. Mr. Chairman, there is no power vested in this House more dangerous in its injudicious exercise than the right of judging of elections, returns, and qualifications of its members. By it a party may determine of what number the minority shall consist, and even whether there shall be any minority at all. I will never consent to exercise this power, even legitimately, except in cases of emergency, or urgent necessity.

The Committee of the Whole House having reported House in favor their agreement to the report of the Committee of Elections, of the sitting the House then, by a vote of 69 to 38, concurred in the opinion therein expressed, to wit, "that John Hoge is enti

member.

tled to a seat in this House;" and he was admitted to take his seat accordingly.

THOMAS SPAULDING vs. COWLES MEAD, of Georgia.

[Evidence taken ex parte, and without the proper notice, will, on the hearing, be rejected.

Congress is, by the constitution, the exclusive judge of the elections and returns, as well as the qualifications of its members, and the returns from the State authorities are prima facie evidence only of an election, and are not conclusive upon the House.*]

On the 9th of December, 1805, the petition of Thomas Spaulding, of Georgia, who contested the right of Cowles Mead, of that State, to a seat in the House, was referred to the Committee of Elections, and on the 18th of the same month that committee made the following report:

Elections.

"That, by a standing law of the State of Georgia, the Report of the election of persons to represent that State in this House Committee of was required to be holden on the first Monday of October, 1804, in the respective counties throughout the State. That three or more county magistrates were required to preside at the election in each of the counties, to return the names of the candidates, and the number and names of the voters, with an account of the state of the poll, and to transmit their returns, by express, to the Governor of the State within twenty days after closing the poll at said election. That the Governor was required, within five days after the expiration of the said twenty days, to count up the votes from the several counties, or such of them as might have made returns for each person, and immediately thereafter to issue his proclamation, declaring the persons having the highest number of votes to be elected to represent the said State in the House of Representatives of the United States, and to

* See this case, referred to in the committee's report on the case of Hammond vs. Herrick, at the first session of the fifteenth Congress, where a question was raised as to the time the rights and incidents of membership commenced, and whether a member can hold an office under the United States after his election to Congress, and before he takes his seat.

See also the case of Mallary vs. Merrill, first session of the sixteenth Congress, in which case the votes of a town were properly given, and a certificate thereof made, and placed in the hands of the town representative, to be delivered to a canvassing committee of the Legislature, but by his neglect were not returned at all.

1st SESSION.

1805. grant a certificate thereof, under the great seal of the State, 9th CONGRESS, to each of them. That, by an official certificate from the Secretary of said State, it appears that the votes from the counties of Tatnal, Liberty, and Camden were not returned to the Governor within the said term of twenty days after the election, nor within the said further term of five days thereafter; and that of the votes given at the said election, and returned to the Governor within the said term of twenty Statement of days, Cowles Mead had facts, by the Thomas Spaulding had .

committee.

Report.

Giving said Mead a majority of

4,438 4,269

169

"That the Governor, in pursuance of the law aforesaid, counted up the votes so returned to him within twenty days, and thereupon issued his proclamation, declaring that the said Cowles Mead was elected, and granted him a certificate thereof.

"By another certificate from the Secretary of State, it appears that after the Governor had issued his proclamation as aforesaid, that is, on the 27th day of November, 1804, the returns of the votes given at the said election, agreeably to the law aforesaid, in and by the counties of Tatnal, Liberty, and Camden, were received by the Governor, being transmitted by the presiding magistrates of said counties respectively. That both of the said certificates from the Secretary are in due form of law. That the said returns of votes from the three last mentioned counties are conformable to law in every respect, except that they were not transmitted to the Governor within the limited time of twenty days after the election. That, of the votes so returned from the said three counties after the expiration of the said twenty days, Cowles Mead had

Thomas Spaulding had.

27

235

Which, added to their respective numbers of votes returned to the Governor within the term of twenty days, and counted by him as aforesaid, gives

To Cowles Mead, in the whole

And to Thomas Spaulding, in the whole

4,465

4,504

39

Leaving the said Thomas Spaulding a majority of Evidence ex "The petitioner offered depositions to prove that the cause parte rejected. of the failure in the transmission of the returns from the three last counties to the Governor within the twenty days. after the election, was a hurricane, which rendered the roads impassable; but as the sitting member was not notified to be present at the taking of those depositions, the committee were of opinion that they were not admissible evidence.

"The petitioner then offered to procure other evidence of the same fact, and the sitting member offered to procure evidence to the contrary, that the roads were passable; but the committee being of opinion that it was not material to

the question before the House, whether the said failure was caused by the act of God, as alleged by the said petitioner, or by the fault of the returning officers, or the defect of the law in not providing a penalty upon officers for neglecting their official duty of transmitting the returns, did not receive any evidence on that point.

"The sitting member stated to the committee that he could, as he was assured, by sending to Georgia, obtain proof that the election in the county of Tatnal was irregularly held, so that the whole return of that county, for that cause, ought to be rejected; but finding, by calculation, that if the votes of that county, of which twenty-four were for himself, and forty for the petitioner, were set aside, it would not affect the result of the election, he waived that objection, and rested his claim upon the principle that all the votes of the three last mentioned counties are void by the law of Georgia, not having been returned to the Governor within the time prescribed by said law.

"There is no suggestion of any fraud or intentional unfairness in the election; and the committee add, with pleasure, that the conduct of both the gentlemen claiming the contested seat, appears to have been candid and honorable.

1805.

9th CONGRESS, 1st SESSION.

on the House.

"Upon the foregoing statement of facts, as the constitution Returns of votes has made this House the judge of the elections and returns, rities are prima by State authoas well as qualifications of its members; as the returns from facie evidence the State authorities, therefore, are only prima facie evidence only, and not of an election, but not conclusive upon this House; as there conclusive upis in the present case satisfactory proof that the votes of the three counties in question, although the returns thereof were not transmitted to the Governor in season to be con- Legal votes are sidered by him, were originally good, lawful, constitutional to be received votes, having been given by qualified voters, on the day, at turned, agreeathough not rethe places, and in the manner prescribed by law; and as bly to the State neither the voters who gave them, nor the candidates in law. whose favor they were given, have done or omitted any thing, on their part, to forfeit their respective right,* the committee are of opinion that those votes ought to be allowed, and, therefore, recommend the following resolution:

"Resolved, That Cowles Mead, returned to this House as a member thereof from the State of Georgia, is not entitled to a seat, and that Thomas Spaulding is entitled to a seat in. this House as a Representative of the State of Georgia."

Ordered, That the said report be committed to a Committee of the Whole House on Monday next.

On the 23d and 24th of December, this report was under discussion in Committee of the Whole.

The following is an abstract of the debate on the report: [See Nat. Int. of 1st January, 1806.]

* See the case of David Bard, of Pennsylvania, where, though the return was not made agreeably to the law of the State, the election was held good. [1st Se sion of 4th Congress, ante, p. 116; also Barney vs. McCreery, p. 167.]

1805.

Abstract of the

thereto.

bers."

The opponents of the report represented it as embracing 9th CONGRESS, a great constitutional principle relative to State sovereignty, 1st SESSION. and the powers of the House. This question arose out of the judicial powers vested by the constitution in each debate on the branch of the Legislature, as to judging of the election of its report of the members. In the first article, fifth section of the constitucommittee, and tion, it is declared that "each House shall be the judge of in opposition the elections, returns, and qualifications of its own memThis section embraces three distinct objects, on which the judicial powers of each House might be exercised: the qualifications of persons returned as members; their election as members, and the returns of the persons selected. With regard to the point of qualification, that could have no bearing on the present question. As to the election of persons returned to serve as members, the constitution has given to the States the power to regulate the time, place, and manner, subject to the interposition of the laws of Congress. As to the returns of members, there is no limitation to the power of Congress to judge of them. What power, then, is given by this section? A judicial power alone. It is worthy of remark that an election and return are entirely distinct acts; where one ceases, the other begins, and vice versa. Where, then, is to be found the power in Congress of prescribing the time, place, and manner of making returns? That such a power existed somewhere, could not be denied, as without it an election would be nugatory. Will it be contended that this power is vested in the General Government, when it is not recognised by a single word of the constitution? It is clear, then, that, as the constitution is perfectly silent as to bestowing such a power in the General Government, it does not belong to that Government, neither was it necessary to carry into effect any power specifically given to the General Government. If, then, the power does not belong to Congress, and it must reside somewhere, it follows, from the theory of our Government, that it must belong to the States, and that the only power in this House on the subject is to judge of the returns, not to decide the time, place, and manner in which they shall be made, much less to dispense with the regulations which the States may make relative to them. But it may, perhaps, be asked how the judicial power of this House can be exercised without uniting with it the power contended for on this occasion. To this inquiry the answer is easy: The right to judge, and the rule of decision, are distinct things; and, while the right to judge may be in one body, the prescription of the rule may be in another. The rule, in such cases as these, must be a State regulation, when it relates to points on which the States have exclusive legislation. If this case relate to a business in which Georgia has the exclusive right to legislate, there can be no other rule than her legislation. In order to illustrate this case, suppose