H. OF R. Ohio Contested Election. MARCH, 1818. and amendments to the House; which were laid in office." The question seems to depend, by on the table, to be printed. OHIO CONTESTED ELECTION. unanimous concession, on the time at which the representative character was assumed. Was it on the 4th of March; or at the time of taking the seat, or oath; or at what time was it? To maintain the position for which he contended, it must be established that the individual became a representative on the 4th day of March, the commencement of the Congressional term. But it has been contended in the answer of the gentleman from Massachusetts, that this period has no other claim to dignity than that which an ordinary act of the legislature could give it, and that, Mr. ANDERSON, of Kentucky, said that his re- consequently, in giving construction to the Conflection's on this subject had produced a result, stitution, we could not assume that time, in prevery different from the resolution recommended ference to any other, as the beginning of the by the Committee of Elections. The question term. If the fact corresponded with this statepresented by the report is a very important one; ment, the consequence contended for could not and the delicacy, if not the difficulty, of the sub- follow, as the statute would have been in necesject is very much increased by the consideration, sary execution of the Constitution, and as indisthat, not only the seats of several gentlemen here, pensable for putting the Government into operabut the rights of their constituents are involved. tion as any clause in the original instrument. If we shall, by any incorrect decision, declare But, by attending to the facts as they occurred, that these seats are vacant, we shall, indeed, it will be manifest that the period here assumed, deeply injure that portion of our fellow-citizens is the commencement of the federal year, and whose power we destroy, and whose voice we that nothing has been fixed with more solemnity. silence in this House; but this consideration can The body of the Constitution does not, and inonly prompt us to a more attentive examination deed could not, from the uncertainty of its ever of the subject, when it is remembered that, if we being ratified, declare the day on which the Govadmit to the councils of the country persons who ernment should take effect. But, on the same have not the required qualifications, we inflict a day on which the Constitution was completed, much greater injury on the whole body of the the Convention still sitting in its public characAmerican people. There is nothing more highly ter, with all the powers with which they ever had calculated to excite the jealousy of freemen, than been invested, passed a resolution, in which the an extension of the power of legislating over mode of procuring the assent and ratification of them, to those to whom they have not impart the States was prescribed, and authority was ed it. given to the Old Congress," as soon as the ConThe duty which we are now performing isventions of nine States had ratified this Constiimportant, but fortunately of rare occurrence.tution, to fix a time and place for commencing This House has now laid aside its ordinary legis-proceedings under this Constitution." It was lative character, and has assumed, under the direction of the Constitution, the functions and powers of a court. The solitary case in which the House of Representatives assumes the judicial character is, in determining "the election returns and qualifications of its own members." The ultimate consistency of all its other acts with the Constitution is to be tested by another department. In this case it is the sole judge of the facts and the Constitution. Its exposition is final and uncontrollable. This consideration impresses on us the importance of the question, and shows the necessity of giving to it the clearest examination. And, however strong our personal feeling might be to wish the most intimate association with these gentlemen in the discharge of our duties, however much we might rejoice that the nation should receive the benefit of their experience and talents, it must be remembered that we can neither extend nor curtail the demanded qualification. It is known that he must rely on the last member of the sixth section of the Constitution for the exclusion, which he expected to establish, which declares that "no person holding any office under the United States shall be a member of either House during his continuance further resolved that, after the requisite elections had taken place, all of which were therein provided for, that "the Senators and Representatives should convene at the time and place assigned," and that "the Congress, together with the President, should, without delay, prooceed to execute this Constitution." This resolution was declared to have been passed by the unanimous order of the Convention;" and was attested by the President and Secretary. It will readily be conceded that, if the members of the Convention possessed the power of framing a Constitution, they as certainly possessed the means of providing for its execution. The time for beginning the new order was of necessity submitted to some body which should have existence when the ratifications of the several States should be received. And these resolutions had in truth, and in public estimation too, as much dignity as any part of the body of the instrument, for all the States in the Union recognised them by appointing Conventions, and Congress did discharge the duty vested in them. On the 13th September, 1788, information having been received of the ratification according to the required manner, Congress executed the power, by resolving that "the first Wednesday in March next be the time, and the present Seat of Congress the place, for commencing proceedings under the Constitution." And the Senators and Representatives did give final execution to the original resolution by meeting on that day. The journal is entered in the first volume of the late edition of the laws of the United States, and contains the narrative of these proceedings. The first act of the Senate has precluded all question as it regards that body, as, in obedience to the third section, the Senators were at their first meeting divided into three classes, and the seats of each declared vacant at the expiration of two, four, and six years respectively, all in reference to that day. Mr. A. said he should not have devoted one moment to prove what he never knew before to be denied, if it had not been seriously urged in the answer, that this day had been assumed as the commencement of the Congressional year, only by an act of ordinary legislation, and that, in any debate on the construction of the Constitution, it had no more claim to attention than any other period of time. But it now must be manifest that this day has been fixed with a certainty and solemnity which would forbid the Legislature from declaring that Congress should in future take its date from any other period; and, indeed, forbid it from all interference on the subject. H. OF R. that the grant of such a power was essential to keep alive the two Houses of Congress. It would have been idle to have created a legislative body, without giving to the attending members the power of coercing the attention of absentees, and thereby of preserving its own existence. But this could be done in no way but by imposing on the persons elected the character and obligations of members. This section, then, completely establishes the position, that persons elected may be Senators or Representatives before their appearance. Το what period of time, then, can the beginning of their public character be referred? To none but the commencement of the term. If Congress had been convened on the 1st of June, the same power would have been possessed to compel the attendance of those who were absent; and such would have been the case at any meeting after the 3d of March. Hence, to his mind the consequence was resistless, that if the individual has been chosen by the people, and the time has commenced, he is a member, and is subject to all the penalties and disabilities of one. It has been thought by some, that the person elected could not be a Representative unless he had given some formal evidence of his acceptance; but this section entirely destroys that idea. So far from requiring any formal acceptance of the votes of the people, to subject him to the call of the In examining this subject, Mr. A. said, he House, we see that even a failure to attend is not should not pursue the course of the report, but considered sufficient evidence of non-acceptance should take the Constitution solely as his guide, as to rescue him from its power. The clear inand expected to prove, from its various provi- ference, then, is, that when an individual of the sions, that the individual elected assumes the requisite age and citizenship has been elected, he character, privileges, and responsibilities of a is a member, unless he gives positive evidence that member before the session of Congress; or, in he refuses to accept. And it is not believed that other words, that they are not dependent on his any inconvenience can result from this section, taking the oath, and the actual occupation of his so necessary to the existence of Congress, as the seat. The first part to which he called the atten-cases have never yet been disclosed in which the tion of the Committee was the first member of votes of the people were thrown upon a gentleman, the fifth section, which declares that "a majority unless it was with his acquiescence, and, generof each House shall constitute a quorum to do ally, at his most earnest entreaty; and no misbusiness, but a smaller number may adjourn from chief can in any way arise, as the person may day to day, and may be authorized to compel the easily release himself from the pains by renounc attendance of absent members." There is no pre- ing the honors of a Representative. tence for saying that this has not reference to the first as well as to any subsequent session of Congress. Here, then, is the plainest evidence that a person elected may be a member of the House before he has appeared and taken his seat; before he has presented himself to the House; before he has given any formal acknowledgment of its authority; even before he has given the least signification of his acceptance, there is imposed on him the responsibility of a member. He is bound to attend; and his disobedience would be punished by adequate penalties. The operation of this clause may seem highly penal; it may seem harsh to impose such obligations on a citizen who has manifested no unwillingness to incur them. That the language of the section is plain, would be an ample answer to any complaint of supposed hardships; but it is evident * New York. Before he proceeded to test the construction contended for by his adversaries, by the other provisions of the Constitution, it was necessary that he should examine a position assumed by them, and urged with great confidence, one which was rejected by the Committee of Elections, but seemed to be relied upon as the main ground of defence in the printed answers of the gentlemen from Massachusetts and Ohio, (Messrs. HOLMES and HERRICK.) They rested their defence to a seat in this House on the distinction between the words "representatives and members." The clause which produces the exclusion in this case says, that "no person holding an office under the United States shall be a member of either House during his continuance in office." And the whole course of the argument of these gentlemen is founded on the admission that they were representatives from the commencement of the term; but they contend that they were not members H. OF R. Ohio Contested Election. MARCH, 1818. a few months before, created such an important difference. He said he could not have much confidence in a construction which had not occurred to any one for nearly thirty years. He asked the whole Committee, he asked each member individually, if the thought had ever occurred to him that he was a Representative from the commencement of the term, but not a member of Congress until the House was organized? The idea was, then, surely fallacious, and the authors of it entitled to nothing but the high merit of ingenuity and novelty. 6 until the oath was administered, and the House was organized, and, of course, were not embraced within the exclusion. For this construction they have contended with such zeal, as to demonstrate that in their opinion the whole question turns on this point. To ascertain the correctness of this bold and novel idea, he had imposed on himself the trouble of a verbal and critical examination of the whole Constitution; and he now felt the confident conviction that it was not correct. The word "members" is used in various places to convey the same meaning which is expressed by the words "senators and representatives;" they The sixth section, which declares that "Senaare used indiscriminately throughout the Consti- tors and Representatives shall in all cases, extution. The clause on which he had comment-cept treason, felony, and breach of the peace, be ed spoke particularly of members in reference to privileged from arrest during their attendance a time before they had appeared, and before the at the session of their respective Houses, and in House was convened; it gave the power of call-' going to and returning from the same," furing the "absent members to produce an organ-nishes a case, in which the privileges of a Repreization of the House, the very fact which these sentative are thrown over the individual before gentlemen contend is necessary to constitute a he takes the oath of office. This exemption premember. But it is used, generally, to prevent cedes the very facts which, the report contends, circumlocution, as a collective word, embracing are necessary to constitute the Representative. the constituent individuals of both Houses. In perfect coincidence with these two clauses Wherever a section is introduced in the Consti- is the first section, article second, which, pretution, giving powers, or imposing duties on the scribing the manner of appointing a President, members of both Houses, that word is used to says that "no Senator or Representative, or persupersede the necessity of two sections, which son holding any office under the United States, would have been otherwise necessary. It would shall be appointed an elector." This sentence not only have been prolix, but very inelegant to surely embraces the case of a Representative, as have prescribed the powers and duties of the well before as after he has taken his seat. The Senators, and, immediately afterwards, to have reason of the exclusion is plain, and we should introduced a section, similar in all respects, de- deprive the clause of half its operation, if it was claring the powers and duties of Representatives. restricted to the period which occurs after the This prolixity and inelegance has been avoided member has taken his seat. But notwithstanding by the use of a word equally applicable to both. this interdiction, if the construction of the report But so strong was the reliance which had been be correct, a member of Congress may, before placed in this construction, that he had been in- the session commences, act as an elector. Surely duced to examine the letters of the Federalist, to we should not rashly admit a construction which ascertain whether it was rendered plausible by would enable all who have been elected to Conany notice or commentary there; but he found gress to serve as electors during that whole period that in the work the word "members" had been of time between March and December; but this employed in more than twenty cases, in reference result must follow, if the person elected is not a to the persons elected, before the meeting of the Representative until he appears and takes his Congress for which they had been elected. In seat, for it is the Representative only who is the one remarkable instance, in the case of the clause disqualified person; and if that character has not now under consideration, the authors, in stating attached itself to him he is under no disqualificathe operation of it for another purpose, say that tion, and can be an elector. One reason which the "Senators and Representatives" are excluded caused the Convention to disqualify members of from office, thereby substituting those words for Congress from serving as electors was, that, in the one which is really used, showing most clear- the event of an equal number of votes between ly that they considered them as synonymous, and any two candidates for the Presidency, the Prethat the distinction now urged was not suggested sident is to be chosen by the House of Represento them. It may be said, as this question did not tatives. That the same individual, then, may form the particular subject of consideration in act and vote as an elector, and in a few weeks any of these celebrated tracts, that no definition afterwards, in the event of a tie, may, on this there imposed should have the weight of an au- floor, again vote for the President, is the preposthority. He said he did not use it for the author- terous and frightful, but certain consequence of ity of their opinion, but he used it for the author- the gentlemen's doctrine. If we assent to the ity of the fact, that it was impossible, if the dis-position assumed, there is no mode of extricating tinction between these words, as now contended for, had been taken in the Convention, that Mr. Madison and Mr. Hamilton, who took an active part in all its proceedings, should so soon have forgotten it; should so soon afterwards have used, as synonymous, words between which they had, ourselves from the difficulty; but if we were only reduced to the alternative of ascribing these consequences to the Constitution, or to the report, the gentlemen must pardon him if he thought they were entitled to the preference. The second section of Art. 1 says that no per son shall be "a Representative who shall not have attained the age of twenty-five years, and have been seven years a citizen of the United States." If the idea is correct that no one can be a Representative before the oath is taken, then this requisition is complied with, if the age and citizenship be attained at any time before the meeting of Congress. This may seem at first reasonable enough, as there is no official duty to be performed in which wisdom or experience is required before that time; but the consequence would be ludicrous, as it makes the eligibility of the person chosen depend on the time of year at which Congress meets. If Congress is convened in the Spring, he is not eligible; if it is postponed until December, the age is obtained and he takes his seat. The farther result follows, that in this way you give to the President the power of conferring or withholding the eligibility of the individual, as he can, by convening Congress at an earlier day than the usual one, deprive him of the qualification which he would have attained in a few months. Unless, indeed, you push the consequence still farther, and contend that, as he is not a Representative until he is sworn, he may postpone that period, and be still eligible and take his seat, if he attains the required age at any time before the expiration of the term. But certainly the qualifications of a member cannot depend on these various contingencies. The requisition must not rest on anything so uncertain as the meeting of Congress or the will of the President. His opinion was, that the person elected must be qualified to serve on the 4th day of March-the day on which he is liable to be called. It must now be obvious that this case comes within the letter of the Constitution; and he would not very readily assent to a doctrine which would support the idea that we should disregard a case which was plainly within the language of the rule, merely because we did not see the reasons of its introduction. We expound the rule, but cannot extend or restrict it. We bear the same relation to the Constitution which the Judiciary does to the statute. A judge cannot refuse to give effect to a law because he cannot discover, or, if he discovers, does not approve the reasons of its enaction. But here the letter so strictly corresponded with the intention of the Convention, that he readily submitted his construction to this favorite test. It has been said in the report, without any qualification, that there was no reason for his exposition; that, as the office must be resigned before the seat was taken, no mischief could arise from permitting the individual to hold the office after his election, until the meeting of Congress. So strong was his conviction of its fallacy, that on it he would rest the question. H. of R. in some of which the powers of two departments were vested in the same person, and in others, those of one divided between two. Every rule, however, on this subject, directs us to give a construction which would promote the general rule in preference to one which would extend the exception. It is probable that the idea held out in the report, that no mischief could flow from its construction, arises from the fact, that those who have examined the subject have attended exclusively to the Representative; and when they have failed in discovering any bias which could influence his legislative acts after his office was laid aside, saw no reason for a different opinion. But if they will for a moment cast their thoughts towards the President, at whose will this office has been held since March, reflect on the inducement which might influence him to retain the favor of this officer, who is a member of Congress; recollect, farther, that this officer is a member of the only tribunal which can bring the President to punishment, and you would see ample reason for his construction. Is there not a most powerful motive on the President to refrain from dismissing that man from office who he knows will be an influential member of the House of Representatives, the only body which can ever bring him to a trial? Will a President dare to displace that officer, whatever be his negligence or infamy, who in a few months will be in a seat, in which he can expose his misdeeds or move his impeachment ? It was intended that the Chief Magistrate should have the most perfect independence, not only in appointing, but in retaining officers in the public service; but here we defeat the object, by exposing him to the strongest temptation to retain an incompetent officer. The Constitutional independence of the President is commuted for a corrupt and illegal dependence on the creature of his own will. Reflect on the incongruous state of things which you produce, when an individual is, in one character, the tenant of an office at the will of the President, and in his other, his prosecutor, if in this House, or his judge if in the Senate. I will propound to you, Mr. Chairman, said Mr. A., the simplest question, which will show the feelings and the conduct of any man: If you had an important suit now depending in the Supreme Court, and one of the Judges held a profitable private agency at your disposal, dare you to displace him before that suit was tried? And if you had firmness to dare, would he have virtue enough not to remember it? If you adopt my construction, we shall neither expose you or the judge to such temptation. But the strongest view of this mischievous construction arises from the fact, that if a person can, after the 4th of March, hold his office and discharge new duties every day, he may be appointed to any new office, and still be eligible, if From the language of the Constitution and he resigns before the meeting of Congress. This the order of its arrangement, it is manifest that consequence has not been and cannot be denied. the framers had a general design of separating In principle there is no difference between holdthe powers of government. This general designing and discharging the duties of an officer after was, however, violated in several excepted cases, the election to which the individual has been pre15th CoN. 1st SESS.-46 H. OF R. Ohio Contested Election. MARCH, 1818. viously appointed, and receiving a commission ther seats as members of Congress, and whom for any other, and performing its duties. No one he thereby drew from the list of his adherents, has been so disingenuous as to attempt to show and added to his enemies? He would not, howany distinction. By appointing an applicant for ever negligent or flagitious they might be. The office who is in the next Congress, the President observations which he had made applied with gains a friend and an advocate; by refusing, he equal force to the Senate, as the seat of a Senamakes an enemy; and do you not believe that tor similarly situated depends on the same seche will always be preferred, who, in his application. But when it is remembered that in all cases tion, can make the offer of his favor, or menace of the impeachment of a civil officer one-third the Executive with his enmity, before one whose of that body can produce an acquittal, we can favor and enmity would be alike disregarded? readily see a strong inducement in the President With the multitude of offices in the Executive to refrain from any injurious treatment towards hands, it may safely be asserted that a corrupt a member of the Senate. So long as he can by President could never be brought to punishment. his virtues or his vices secure fourteen Senators, It is idle to expect that his patronage can ever be he is beyond the control of the people or the lessened in this country. His powers are at this power of punishment. May not, then, cases moment in a most rapid state of accumulation, occur, in which the votes of one, two, or three the inevitable consequence of our increasing men would be so important, as that they would wealth, population, and prosperity. And if ever be permitted to retain their offices, or new ones you expect to decrease these powers, you must be given them after their election, with the sole destroy the commerce of the ocean, you must view of securing their votes? It cannot be oblay waste the lands of the West, you must col-jected that it is unfair or unwise to argue from lect your revenue without officers, and create the supposition that a President is capable of coroffices without salaries. ruption; the Constitution itself, which gives the power of impeachments, and contains various guards against the corrupt passions of man, warrants the idea. It would, indeed, be unpardonably puerile to act on the supposition, that the future officers of this Government would not have the same propensities and feelings which God had given to man since the creation of the world. If this argument only suited extreme cases he would at once surrender it; we must act for man as he is formed; we cannot fashion him by the standard of an angel. In this way, too, the Constitutional sanction of the Senate would be evaded, as the President, by appointing an individual to office, who he knows will resign at the meeting of Congress, thereby increases his patronage by the necessity of another appointment, and multiplies the cases in which offices are held by individuals whose qualifications have not been tested by the Senate. It may be said that the rewards which could be offered would be too small to operate as a bias, inasmuch as the utmost would be the possession of an office for a few months. But this cannot be urged with effect, as it would only show that the influence was not as great as might be in other cases; it is the existence, and not the degree of the influence which is regarded. An office of the emoluments of one hundred dollars, and of the duration of nine months, fills the language and the intention of the Constitution as completely as one of the emoluments of a million, or the duration of a life. In many cases, however, the profits of offices in the Executive gift, even for that period, were, as he believed gentlemen would be willing to admit, of some consideration. The salary of a foreign minister for nine months is nearly $7,000; of the Secretaries of the Departments, of some of the collectors of the ports, and many other officers, nearly Other suggestions might be made on this sub$4,000; and of several hundred offices in the ject which would tend to warrant my view; United States from one to three thousand dollars. but, although considered singly, they would not, All this is shown in the Red Book now on your and probably ought not, to form the basis of an table. These are sums which gentlemen, unless opinion, all conduce to the same end. In all they valued money much less than he did, would cases of doubtful import, public sentiment and be unwilling to surrender. No man who has been general practice cannot be wholly disregarded; recently dismissed from office can come into this he now referred to the laws of Congress, giving House without angry feelings towards that off-the privilege of franking letters, and an exempcer who dismissed him, and the President will always know this too well ever to produce them. The report now before us shows that a state of things may easily occur, in which a timid President would fear to exercise his power of dismissal. In these tranquil times, when the Chief Magistrate of the nation receives the almost unanimous approbation of his countrymen. my apprehensions may not be realized; but if ever political conflict should come again, and parties be nearly equal in this House, would any President, but the one most strong in virtue, dare to dismiss from lucrative appointments as many as ten officers, who were soon to take tion from militia duty, and the practice under them. It is believed that a universal sentiment has prevailed that they attached to the member before he took his seat; and it would not be hazardous to venture a conjecture, that the enjoyment of them, in all the present cases, had not been postponed until the oath was administered. If it should be urged that this practice had been tolerated in silence, without objection or discussion, and of course was not entitled to the weight of an authority; he replied, that this circumstance gave the highest evidence of the universal opinion that it was right. There is no subject on which the people are so sensitive, none on |