ex parte, and therefore hoped the House would reject it, and not suffer the proceedings of the State of Georgia, dignified as it was, to influence Congress in a matter which was entirely within their own jurisdiction.

The House refused to receive them.

MONDAY, MARCH 19, 1792.

The House resumed the consideration of the case when a motion was made that the House do come to the following resolution :

"Resolved, That the petitioner, James Jackson, is entitled to a seat in this House as a member for the lower district of Georgia; and that the right of petitioning against the right of the said James Jackson be reserved to all persons, at any time during the term for which he was elected."

This resolution was debated until the 21st, when a motion was made that the House do agree to the said resolution, amended to read as follows:

"Resolved, That James Jackson is entitled to take a seat in this House, and that the right of petitioning against the right of said James Jackson be reserved to all persons, at any time during the term for which he was elected."

Which was decided in the negative. Yeas, 29; Nays, 29;

the Speaker voting in the negative. Whereupon,

1792.

2d CONGRESS, 1st SESSION.

"Resolved, That the seat of Anthony Wayne, as a member The seat deof this House, is, and the same is declared to be, vacant." clared vacant. Ordered, That the Speaker transmit a copy of the pre

ceding resolution, and of this order, to the Executive of the State of Georgia, to the end that the said Executive may issue writs of election to fill the said vacancy.

MARCH 20, 1792.

The usual business of reading petitions being over, the several orders of the day were called for, and various motions made, all of which gave place to one from Mr. W. SMITH, proposing this resolution, viz. That the seat of Anthony Wayne, as a member of this House, is vacant; and that notice be served on the Executive of the State of Georgia, in order that they may issue a writ for a new election.

This motion was objected to as not being sufficiently comprehensive to express the sense of the House; on the contrary, it seemed to be intended to prevent the introduction of a resolution which was proposed by Mr. GILES, viz.

"Resolved, That James Jackson is entitled to a seat in this House." To both of those motions several amendments, substitutes, &c. were proposed, and Mr. Giles's motion was modified so as to read thus: "Resolved, That James Jackson is duly elected, and, therefore, entitled to a seat in this House."

1792.

1st SESSION.

Remarks of

Mr. GILES supported this motion by a train of judicious 2d CONGRESS, and well applied arguments, drawn from the precedents of the British Government; he particularly mentioned the Middlesex election, when Mr. Wilkes was expelled the House of Mr. Giles. Commons, for having been tried and found guilty of an abominable libel; in which case a writ for a new election was issued, because there was not then any other candidate ; but when afterwards there was a candidate set up against Mr. Wilkes, the House of Commons did not order a new writ to issue, they declared the other candidate duly elected, having previously decided that Mr. Wilkes was ineligible to a seat in the House. This, although it may not be reckoned exactly a case in point, comes something near to the Georgia election; and from this and a variety of other cases, which Mr. GILES quoted, he thought the House would be highly justifiable in declaring Gen. Jackson duly elected, and therefore entitled to a seat in the House of Representatives.

Remarks of

Mr. GILES further observed that the consequence of not agreeing to the resolution he had the honor to propose, would be a disavowal of the right of the judicial powers of the House in cases where they were to decide upon the qualifications of their own members, and it would be transferring those powers to the Executives of the States, if Mr. Smith's motion should obtain..

Mr. W. SMITH rose to oppose Mr. Giles's motion, and enMr. Smith. tered into a very extensive chain of argument on the rights of election, the powers of Congress, the danger of foreclosing the chair of the sitting member, should he desire to impeach the validity of the petitioner's election; the want of reciprocity that would ensue from an adoption of the resolution; the danger of so bad a precedent; the deprivation of the rights of Georgia to hold a new election to fill the vacancy, &c. &c.

He also quoted almost all the cases of contested elections in Great Britain, and drew inferences from each in favor of his own opinion. He said the business before the House was not to take cognizance of Gen. Jackson's right to a seat, it had been no more than to investigate the legality of Gen. Wayne's seat, which was now decided in the negative; it was not a contest between Gen. Wayne and Gen. Jackson, but an inquiry into a return.

Mr. GILES proposed to amend his motion by adding these words, "and that the right of petitioning against the said election (of James Jackson) be preserved to all persons, &c. within the time for which he was elected."

Remarks of Mr. MADISON replied generally to all the reasoning of the Mr. Madison. gentlemen who had gone before him in this business; he mentioned the general rule, that whosoever had a majority of sound votes was the legal Representative; he then recited several exceptions to this rule, and expatiated on the lex parliamentaria. In addition to the cases quoted by Mr. GILES

and Mr. W. SMITH, he mentioned one wherein corruption appeared in both candidates, and the seat was adjudged to him who had the greatest number of sound votes; but this, he said, was not a case exactly in point: he therefore believed it would be necessary to decide the present one agreeably to the constitution and right reason. He had ventured an opinion formerly upon an occasion of this kind, and he would now confess that if the House could, conformably to reason, precedents, or conveniency, admit the petitioning member to a seat, he believed that they ought to do it, in order to fill up the chasm in the House, so far as relates to the representation and interest of the State of Georgia. He differed in opinion with those who had argued that the petitioner had not claimed his seat; and even admitting he had done so, or that he would resign or refuse to accept it, still the House are bound to declare and establish his right.

MARCH 21, 1792.

On the motion of Mr. GILES, respecting the right of Gen. Jackson to a seat in the House,

1792.

2d CONGRESS, 1st SESSION.

Mr. BOUDINOT rose to deliver his opinion; previous to Remarks of which, he thought proper to recapitulate most of the circum- Mr. Boudinot. stances which have come into view, before the House, from the time of receiving Gen. Jackson's petition to the present time, of declaring whether he is, or is not, entitled to the seat in the House of Representatives.

He took particular notice that there were only two candidates for the lower district of Georgia; no third candidate had been set up. Hence, as there were only two, and one of them has been proved to be illegally elected, it remains to be decided whether the other be entitled to the seat.

He observed that in three of the counties the whole of their elections were null and void, and that, with respect to the others, all the evidence which would be necessary to an investigation has not been yet before the House, as no other evidence has been adduced but such as was thought necessary to vacate the contested seat; consequently the evidence admitted in one case cannot be admitted in another, and if Congress proceed in the question now under consideration, they must do it without the cognizance of Georgia, and without any return by them made in favor of the petitioner; besides, it will be doing an essential injury to the sitting member, should it appear that he had a majority of votes exclusive of all the illegal ones, as it will be precluding him from all redress, to declare the petitioner the sitting member.

Mr. BOUDINOT also quoted the case of the Maryland election of Mr. Pinkney, who had resigned; yet the next candidate in number of votes was not declared; a new election was held. Upon the whole, after considerable time spent in reasoning nearly on similar grounds with those of Mr. W.

1792.

SMITH, he concluded by declaring that he was apprehensive 2d CONGRESS, the House would be acting rather precariously should they attempt any decision at present on the resolution proposed."

1st SESSION.

Remarks of

Here Mr. BOUDINOT proposed to read a paper in his place, containing information which he said was necessary to support the opinions he had advanced, and which paper went to prove that there was not a majority of votes in favor of the petitioner after deducting the illegal votes. Several members opposed the reading of these papers, and some asked why these papers had not been produced on the trial. To this it was replied by Mr. W. SMITH, that this testimony was not then necessary; it was also observed, that in case Gen. Wayne's testimony should prove so many illegal votes against Gen. Jackson, that, after all the bad votes were left out on both sides, it should appear that Gen. Wayne had a majority notwithstanding, the House would be driven into a dilemma, for it might be demanded of them to declare his election legal after the House had already declared it illegal. Under these circumstances, it was judged improper to produce the evidence proposed to be read by Mr. Boudinot; and he accordingly withdrew it, and proceeded to make some further observations on the impropriety of agreeing to the motion under consideration.

Mr. LIVERMORE expressed some regret at the situation. Mr.Livermore. into which the House was driven in this business. He quoted the election laws of Britain, and drew several inferences therefrom, as the only precedents that could enable Congress to form a judgment. He also observed that special regard ought to be paid to the election law of Georgia. From the whole of his arguments, it appeared, that unless a majority of votes in favor of Gen. Jackson had been returned to the Governor, and from him transmitted officially to the Speaker, &c., he could not suppose him entitled to a

Remarks of

scat.

Mr. HILLHOUSE was of opinion that, until such time as Mr. Hillhouse. Congress enacted a law for regulating elections, there was no other rule to go by than the laws of the States; under this impression, he joined in opinion with Mr. LIVERMORE. On the question being taken, this resolution was negatived, Seat vacated. and, as heretofore stated, the seat was declared vacant.

HENRY LATIMER vs. JOHN PATTON, of Delaware.

[The law of Delaware regulating elections, (the State being entitled to one member of Congress,) requires that every person offering to vote "shall deliver in writing, on one piece of paper, the names of two persons, inhabitants of the State, one of whom, at least, shall not be an inhabitant of the same county with himself." Held that this provision is not repugnant to the constitution of the United States, and that ballots varying from the form prescribed are to be rejected.]

The "petition of Henry Latimer, of the State of Delaware, was presented to the House, and read, complaining of an undue election and return of John Patton, to serve as a member of this House, for the said State."

The petition was referred to the Committee of Elections, Directions for with instructions to examine the matter thereof, and report taking testithe same, with their opinion thereon, to the House. On the mony. 14th December a resolution was adopted by the said committee, with the consent of the parties, that evidence should be taken in each of the counties in the said State, by certain commissioners named in their order, in the following manner, to wit: "That the above commissioners give a notice of at least ten days of the times and places in each county, respectively, at which evidence shall be taken as aforesaid; that the parties, or their attorneys, shall attend with their witnesses, at the appointed times and places; that they put cross-interrogatories if they think fit; and that when the evidence shall be completed, the commissioner or commissioners who shall attend, transmit the several depositions or other written evidence, or necessary documents, sealed up, and directed to the Committee of Elections."

"Every person deposing shall be sworn or affirmed to testify the whole truth, and shall subscribe the testimony given, after the same shall have been reduced to writing, which shall be done only by the commissioners taking the deposition, or by the deponent in his presence: that no written evidence shall be admitted which shall be taken prior to the first, or subsequent to the last day of January next." [See journal of 10th December, 1793.]