1789. 1st CONGRESS, 1st SESSION. Remarks of Remarks of Mr. Benson. Remarks of and then leave the matter to their decision, to which we shall submit with cheerfulness. We came here with an ardent desire to carry the constitution into effect. Actuated by this motive, we mention to the House the great attention which ought to be paid to secure the freedom of election, upon which alone the whole fabric depends. It is not that we dread the fullest investigation, that we submit these sentiments; it is our anxious wish to have the question of our election speedily determined, and not delayed by what we conceive a useless measure. The question before the House appears to be, whether it is necessary to obtain a few additional witnesses, at great uncertainty and expense, or whether the evidence already before them, and what may further be advanced by the petitioners viva voce, is not sufficient to decide upon. Mr. AMES brought forward several resolutions, which he thought would bring the question alluded to by the honorable gentleman from New Jersey, fairly before them; the first prescribed the mode of taking depositions by commission. This being read, together with the papers containing the charges, and the certificate of the Governor, Mr. BENSON observed that the House had referred this business to the Committee of Elections, to report facts arising from the proofs; that it appeared to the committee that certain facts respecting the manner in which the election was conducted, might be material, but the testimony could not be procured by them without the aid of the House; they had, therefore, made a report of this nature. He thought the House had better consider whether the facts alluded to by the committee were material or not; if they were not material, the House could not adopt the resolutions proposed by Mr. AMES; but if they were, then those resolutions will come properly before them. Mr. VINING Opposed Mr. AMES's proposition for empowerMr. Vining. ing the judges of New Jersey to take this evidence; he was in favor of receiving the testimony viva voce before the House; the vicinity of that State would render this mode not inconvenient, and if it should be found necessary to form commissions for this purpose in distant States, provision might be made accordingly. Remarks of Mr. LAWRENCE remarked that it had been questioned Mr. Lawrence. how far the House had a right to interfere in the election of particular States, but that Congress has received a discretionary power from the constitution to regulate the time, manner, and place of holding elections; and it is stated in another clause that the election and qualification of its own members shall be judged by the House; by this means, all transactions relative to such elections are included; consequently, they may determine in what manner the investigation of such a subject shall be prosecuted, if any doubts arise on that point, the sense of the House must be taken thereon. Mr. BENSON proposed a day to be assigned, on which the parties should have a hearing before the House on the question, either by themselves or by counsel, whether by the constitution an inquiry can take place before the House relative to the fact alleged. 1789. 1st CONGRESS, 1st SESSION. Remarks of Mr. Benson. Remarks of Mr. White; Mr. Jackson. Mr. WHITE objected to counsel being introduced in the present instance; he judged the House as competent to decide this business, as they had already been to determine many other constitutional questions. Mr. JACKSON was of opinion that no such question could Remarks of be admitted with propriety; one election had been determined without the aid of counsel, or ex parte evidence; and he saw no reason, in the present case, why a different mode should be substituted. The authority of this House is not to be called in question by an individual; there can be no doubt of its jurisdiction in the case. One gentleman has been tried by the House, upon the evidence that was brought before us. It will not be pretended that the delicacy and feelings of that gentleman could be less than those of the gentlemen concerned in the present question. It would be inconsistent, and unjust to subject one member to a particular mode of trial, and then deliberate whether that same mode shall be adopted with respect to another. Mr. SENEY said he did not doubt the jurisdiction of the House; but as some objection had been made by the petitioners, and they had prayed to have the point settled, he thought they ought to be indulged; that every citizen had a right to be heard in his own defence, where he considered his right concerned. It was then moved that the report of the committee should lie on the table, in order to take up the proposition of Mr. BENSON. Remarks of Mr. Ames. Mr. AMES objected to this proposition, as the greatest Remarks of inconveniences might arise from it; it would discourage a number of people from applying for justice, especially those who lived remote from the seat of Government, provided they were obliged to attend in person, and give their testimony. The eligibility of taking testimony, in many cases, particularly the present, in preference to the delays, uncertainty, and enormous expenses that would inevitably attend the mode proposed by the motion, was clear to his mind. After some desultory conversation, Mr. BENSON withdrew his proposition. Mr. Lee. Mr. LEE proposed that the report should be recommitted, Remarks of and the committee authorized to send for evidence, papers, and records, and report a special state of facts. He said it was the custom of the British House of Commons, upon similar occasions, to leave the whole business to a committee, and observed that the example of so old and so experienced 1789. 1st CONGRESS, 1st SESSION. Motion of Mr. a legislative body could be followed with safety and propriety. This motion was withdrawn after some desultory conversation had taken place upon it. The question on the report of the committee then recurred on the question whether the judges of the Supreme Court in New Jersey should be authorized to take depositions on the subject of facts alleged by the parties; when Mr. SENEY moved that Wednesday next be assigned for the parties to appear, and be heard by their counsel before the House, of which notice should be given, and that the committee be discharged. Remarks of Mr. LIVERMORE observed that the House was much emMr.Livermore. barrassed. But, sir, said he, I foresaw it from the first appointment of the committee. I object to counsel being introduced into this House to discuss a previous question. The House is the judge in its own elections. We have appointed a committee to examine, but we have not vested them with power to determine. They have not so much as a power to hear. If we have pursued a wrong step, why should we proceed any further? Let the committee be discharged, and a day appointed to hear the parties. It is my determination to hear before I judge. The committee should be discharged if they cannot proceed without our aid. The subject now before the House is material, and of the greatest importance; and although we have been heretofore wrong, we may now set ourselves right. Remarks of I have no objection that counsel should be heard upon the merits of the principal question. Though after an investigation of facts, we have determined in one instance, and why we cannot do the same now, I cannot conceive. Each House is to judge of the elections, returns, and qualifications of its own members. What means the word judge? Why, it corresponds with the ancient maxim, to hear and determine. Now, how can the House determine without hearing? If the House is to judge, we must bring all the evidence before us, although the committee may have heard it twenty times over. Mr. MADISON thought, if the jurisdiction of the House was Mr. Madison. called in question, it would be proper to hear counsel on that point, because it must be indelicate to determine a question respecting their own jurisdiction, without hearing what could be advanced against it. Remarks of Mr. PAGE was in favor of recommitting the report, and Mr. Page. letting the committee proceed upon the duty to which they were originally appointed. He said, if the jurisdiction of the House was questioned, the parties had an indubitable right to be heard by counsel, and he hoped no gentleman would refuse the people of the United States a privilege of this important nature, which had been always enjoyed by the subjects of Great Britain. 1789. 1st CONGRESS, Remarks of Mr. STONE thought the authority of the House to determine any question respecting the election of its members, 1st SESSION. was so clearly expressed and understood, from the fifth section of the first article of the constitution, that no doubt could be entertained by the petitioners or any one else; consequently, it would be a waste of time to spend any in hearing counsel on that point. He had no objection to admitting a limited number on the merits of the main question, if it was required. Mr. BOUDINOT informed the House that the petitioners meant to withdraw; then request to be heard by counsel. Whereupon, Mr. SENEY withdrew his motion for making it the order of the day. The question again recurred for inserting a commission to go into New Jersey to take evidence; but it growing late, the House adjourned. The debate does not appear to have been further reported; but by the Journal of the House, it appears that, on the 15th July, the report made by Mr. AMES was ordered to lie on the table. On the 18th August, Mr. CLYMER, from the committee, made the following report: Report of 1st. The polls were closed in the counties of Bergen, Mr. Clymer. Morris, Monmouth, Hunterdon, Somerset, Middlesex, Sussex, Salem, Cape May, Cumberland, Burlington, and Gloucester; and the lists of the several persons voted for, and the number of votes taken for each, were received by the Governor at the respective times, appearing from the said lists, and the endorsements thereon; which lists were before the committee. 2d. That the election in the county of Essex, the remaining county of the State, closed on the 27th of April, and the list was received by the Governor on the 3d of May. 3d. That in consequence of a summons from the Governor, dated the 27th of February, to four of the members of the Council, a Privy Council, consisting of the Governor, and the four members so summoned, did assemble at Elizabethtown on the 3d of March, and being so assembled, Mr. Haring, another member of the Council, received a note from the Governor, in consequence whereof, he also did attend the Council as a member thereof. 4th. That the Governor then appointed another meeting of the Council to be held on the 18th of March, on which day the Governor and eleven members of the Council did attend, and did then determine, from the lists of the twelve counties above specified, that the four persons now holding seats in this House were the four persons elected members of this House from that State; against which determination of the Council three of the members then present did pro 1791. test, and a copy of the protest was, on a subsequent day, 2d CONGRESS, delivered into the Council. 1st SESSION. Are entitled to their seats. 5th. That there was no determination of the Governor and Privy Council in the premises, until the 18th of March, and that on the 19th he did issue his proclamation. It was, on the 2d of September, "Resolved, That it appears to this House, upon full and mature consideration, that James Schureman, Lambert Cadwallader, Elias Boudinot, and Thomas Sinnickson were duly elected, and returned to serve in this House as representatives for the State of New Jersey, in the present Congress of the United States." SECOND CONGRESS-FIRST SESSION. COMMITTEE OF ELECTIONS. of Committee to On the 31st October, 1791, a committee was appointed to report a mode of taking testi- report a regular and uniform mode of proceeding in cases of mony in cases contested elections of members of this House, consisting of contested Mr. AMES, Mr. DRAYTON, Mr. BROWN, Mr. FITZSIMMONS, and Mr. TUCKER. [Journal of the House.] An act of this character was passed the 23d January, 1798; see acts of that year, chapter 25. elections. CASE III. JOHN F. MERCER, of Maryland. [The Executive authority of a State may receive the resignation of a member of the House of Representatives, and issue writs for a new election, without waiting to be informed by the House that a vacancy exists in the representation of that State.] The facts on which the question in this case arose, were these, as they appear extended on the journal on the 9th of November, 1791. "The Speaker laid before the House a letter from the Governor of Maryland, enclosing a letter to him from William Pinkney, a member returned to serve in this House for the said State, containing his resignation of that appointment: also, a return of John Francis Mercer, elected a member to serve in this House, in the room of the said William Pinkney; which were read and ordered to be referred to the standing Committee of Elections." On the 18th November, the committee made a report, which was |