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question could not be submitted again, yet the matter could, nevertheless, be referred to the Committee of Privileges and Elections. If the gentleman had only recollected the resolution for which he voted, he would not have made this charge. By that resolution, although proposing to determine for the time that the gentlemen holding the commission from the Governor should take their seats, there was an express reservation that, as a "question of contested election," it should be considered in the House after it was organized. If there had been no such reservation, undoubtedly, according to the parliamentary principle he had laid down, the matter, if then fully determined, could not have been referred in the House. There would then have been inconsistency in saying that it could be referred to the Committee of Privileges and Elections; but with the resolution before him, for which the gentleman voted, and which he ought to have known, the charge of inconsistency is without the least foundation.

NEW JERSEY ELECTION.

SPEECH OF HON. N. CLIFFORD,
OF MAINE,

IN THE HOUSE OF REPRESENTATIVES,
January 10 and 11, 1840,

On the resolution of Mr. CAMPBELL, of South Carolina, proposing to refer all the documents and testimony in relation to the New Jersey disputed election to the committee on that subject, and Mr. BELL'S substitute there. for, declaring that the gentlemen without certificates should not be qualified.

Mr. CLIFFORD said it was true that this subject had occupied most of the time of the House since the assembling of Congress; and it was also true that the time had been chiefly spent in listening to the speeches of gentlemen who sustain the claims of the members commissioned by the Governor of New Jersey. Thus far very little had been said in reply by those who oppose the pretensions of fraud and undertake to uphold the rights of the Representatives elected by the people.

The first three weeks of the session, he believed, were entirely devoted to the subject; and he had supposed that after the decision upon the final proposition of the gentleman from Virginia [Mr. WISE] the matter would have been suffered without further debate or delay to go to the Committee of Elections, especially after that gentleman himself had proclaimed that the victory was with the party in the majority; that the battle had been fought, and that he and his friends had lost it. But when the honorable chairman of that committee [Mr. CAMPBELL] proposed a resolution having that object in view, new obstacles were thrown in the way, in the form of embarrassing amendments, contravening the past action of the House, implying censure of the majority, and thus reopening the whole merits of the controversy. He disclaimed interposing objection to any proper amendment or to the usual range of debate; but he had a right to complain when gentlemen pass by the question of reference, he would not say by subterfuge, but for the purpose of reviewing the course of the majority, especially as they had been permitted to indulge in severity of remark, while he and others who have equal rights had not yet had an opportunity of saying one word upon the subject. The gentleman from Virginia [Mr. BOTTS] and others who preceded him had taken this course; and the gentleman from New Jersey [Mr. RANDOLPH] had been permitted again and again to occupy the time of the House in reiterating the same arguments and reviewing the whole matter connected with the New Jersey election. Up to this time (Mr. C. said) he had contented himself with giving a silent vote on the various questions that had been presented in relation to this subject, taking care that the effect of every vote should be to protect the rights of the people; and he would still have continued to pursue that course had it not been for some remarks of the gentleman from Virginia, who made it the ground of complaint that those opposed to him on this question had not entered sufficiently into the discussion, and insinuated that their silence was occasioned not by a desire to avoid a

Mr. PECK objected.

Mr. CLIFFORD trusted that no gentleman on that floor would persist in the objection to his reading a paper which the Clerk had offered to the House in explanation of his conduct, which had so often been called in question by the most sweeping denunciations. He (Mr. C.) did not claim to have much experience here, but he knew something of legislative proceedings, and he had never known this courtesy to be objected to but in two instances: one of which was a few days since, which was immediately overruled, and the other in the Legislature of Maine, where the request was denied because the member was manifestly endeavoring to consume time unnecessarily. Leave being granted-yeas 110, nays 68— The Clerk read the following statement:

HOUSE OF REPRESENTATIVES, December 3, 1839. Congress having adopted no general law to ascertain the title of those who claim a seat in the House of Representatives, nor any rule to organize the House itself, in the meaning of the Constitution, the following investigation is undertaken with the view of eliciting from former precedents, and past usage, those general principles of parliamentary law which should be received and acknowledged until modified by positive enactment.

Ho. OF REPS.

Speakers, but some person was selected as "spokesman" for each particular occasion; that then the same individual was nominated for the entire session, qui avait les paroles pour les Communes; and not until the time of Richard II. was he styled parleur pour les Communes, or Speaker of the Commons.

The Commous House of Parliament, in Great Britain, from time immemorial, has been organized after the strict. est mode of legal processes. Whenever a Parliament was to be called, the King gave warrant to the Lord Chancellor to summon the Lords spiritual and temporal, and to issue writs of election for the several counties, cities, and boroughs, directed to the sheriffs of the same. By virtue of this authority the sheriff's sent their precepts to the election officers, commanding them to hold elections in those places entitled to representation in Parliament. Returns of the elections, in the form of indentures, were sent to the sheriff, and by him attached to the original writ and forwarded to the Crown Office, whence they originated, and were there filed. From these, in one authentic book, the names of all the knights, citizens, and burgesses were certified to the Clerk of the House of Commons. On the day the writs were returnable, (being the day for the meeting of Parliament,) the Lord Steward of the King's household, in an ante-room, attended by the Clerk of the Crown, and Clerk of the Commons, with the rolls of such names of the Cominons as were returned, commanded the rolls to be called, and those who answered to their names received the oaths required by law. This ceremony completed, the members took their seats in the House, and waited a summons from the King to come into his presence. After hearing the King's speech, leave was then granted them to assemble in their usual place of meeting, and to make a choice of one from among themselves to be their mouth and Speaker. The nomination was generally made by one of the King's officers and agreed to without a division. If, however, others were named, the House proceeded to the question, and directed the Clerk, "sitting at the board, (as the order is, before the Speaker be chosen,) to make the question." From this mode of procedure two important conclusions are to be drawn: first, that the Commons are regularly organized and constituted a House capable of propounding and deciding questions before the election of a Speaker. When the roll had been called, members had answered to their names, taken the oaths prescribed by law, and seated themselves in their usual place of mecting, there was then a House of Commons. The appointment of one to be their mouthpiece was important for their own convenience, but

not necessary to constitute a House. There were Parliaments before Speakers, is an ancient and significant phrase, Indeed we are told by historians that at first there were no

A memorable case occurred in the time of James II., 1678, when the Commons were without a Speaker for an entire week, and at last prorogued without having made an election. They at first had selected Sir Francis Seymour, and presented him to the king for confirmation, supposing the ancient usage in that respect to be a mere ceremony. But the king, wishing to test the strength of his prerogative, refused to sanction the nomination. They then returned to their own House, without any one at their head, Sir Francis not making his appearance. This occurrence was on Friday, and until the next Thursday the House was engaged in long and warm discussions on various subjects, adjourning at the same time from day to day. Propositions were made to appoint a chairman, and rejected. Coinmittees were appointed to hold conferences with the king; others with the House of Lords; others, again, to search the records for precedents to guide their proceedings, and after a week thus spent in fruitless efforts, they were disbanded without coming to a conclusion among themselves, or an agreement with the king. This case is to be found in Grey's Debates, volume 6, page 404.

The old Colonial Assemblies, having the British Parliament as a model, were organized in the same way, and our present State Legislatures also, varying only in a few unimportant particulars. Whenever, at the time appointed, members presented themselves at the seat of Government, assembled in their usual place of meeting, took the oaths prescribed by law, and ascertained a quorum to be present by the calling of a roll, there was then duly constituted a House competent to entertain and decide all propositions touching the privilege of members, the claim to contested seats, and whatever else that might appertain to their more complete organization.

There are doubtless many gentlemen here present who remember cases similar to the one referred to in the British Parliament, where their own Legislatures were engaged for days in discussing and deciding questions before the election of a Speaker, that office being regarded, as it undoubtedly is, a mere instrument, a labor-saving machine to themselves.

The second conclusion to be drawn from an observation of the mode of organizing Parliament is the extreme liability to fraud, and the imposition of spurious members. None but those whose names are recorded on some return filed in the Crown office are permitted to take their seats, It is obvious, therefore, that two officers alone, or either one, the sheriff of the county, who makes the return, and the clerk of the Crown, who files it, have it in their power to make such returns as they please.

Perceiving the great advantage he possessed, the king, at an early period, attempted to interfere, and dictate who should be returned to the Commons. In 1603, Sir Francis Goodwyn was elected from the county of Berkshire; returns were made in due form, and sent to the Crown office. The king pronounced him ineligible, and ordered the Chancellor to issue a new writ; which was done. Sir John Fortescue, one of the king's council, was elected, the returns filed, and his name placed on the rolls of Parliament. The sturdy and free-hearted yeomanry of those old days promptly resisted this procedure, and in process of time succeeded in wresting from the king his assumed prerogative of interfering with the return of members filed in his office of chancery. Driven from this stronghold, he resorted to the next, which proved to be the most vulnerable point. By means of secret agents and emissaries, he completely effected his object, in bribing and suborning the sheriffs and their assistants. The books of law and the reports of parliamentary decisions are absolutely filled with cases of defective and partial returns, double returns, and false returns, knowingly and fraudulently made by those who had taken an oath to act justly and impartially, but who could not resist the rewards or the threats of a monarch and his nobility. So thoroughly corrupt had Parliament become in consequence of the frauds practiced on the returns of its members, a rule was adopted, in process of time, by which those returns were very little regarded. Perceiving that a rigid adherence to legal processes and technicalities had not only broken down the character and integrity of the Commons, but was fast becoming the means of undermining the liberties of the people, they soon learned to draw a just and obvious distinction between a civil and political process; holding that a strict interpretation of the one might screen the community from the grinding exaction of creditors, while a strict adherence to the other was only the means of corrupting public officers, and of prac ticing a fraud on the rights of the people.

So early as 1707, an order was adopted by the Commons "that all petitions at any new Parliament relating to elections and returns be delivered to the Clerk of the House, and be laid by him on the table before the Speaker was chosen." And it was subsequently ordered that those cases should be considered before proceeding to any other business. In the mean time those claiming the disputed seats were not allowed to participate in the proceedings; indeed, were prohibited by severe penalties.

Thus we see that even in England, where the rights of the people are not regarded of paramount importance, the House of Commons in self-defense, to protect itself from corruption, and the intrusion of spurious members, was compelled to disregard the technicalities of law, to look beyond the mere formalities of a return, which was no longer prima facie evidence of membership, but an instrument of fraud, to pass by all those intermediate stages, so readily and constantly perverted, and look at the actual state of the case-the elections, as they really took place among those who had "the right of election."

In some of the States of this Union a similar course is pursued, though their laws, If strictly interpreted, and rigidly adhered to, would place it in the power of the Executive to organize a Legislature in the first instance, after

26TH CONG....1ST SESS.

their own will; and thereby contravene the wishes of the people, and perpetuate the power in their own hands.

In Virginia, for example, a strict interpretation of the law would place the organization of the Legislature, in the first instance, in the hands of the Executive Council. But they have never interpreted the law as conferring any power on them-merely to administer the prescribed oaths; they never examined the certificates of members, or took cognizance of their title in any way,

A high executive officer of Pennsylvania, acting under laws not more rigid than those of England or the State above alluded to, but feeling it his duty to follow the minutest technicality in regard to returns, rejecting all those of a conflicting nature, and presenting to the Legislature those only be deemed official, was well-nigh involving that ancient and patriotic Commonwealth in revolution and civil

war.

Had the Secretary of State presented both returns from the county of Philadelphia, and explained the circumstances so far as they had come to his knowledge, he would have relieved himself from a very delicate position, thrown the responsibility of deciding the case where it properly belonged, on the House of Representatives and the Senate, and, in all probability, would have prevented those distressing scenes which followed the course he actually pursued. And much of the testimony given before a committee of the Legislature appointed to examine into the causes of the difficulties at Harrisburg, and many other recent events, all prove that had he pursued the course above indicated, no difficulties would have arisen, and general satisfaction would have been given to the wise and candid of all parties.

Congress, however, both in regard to the return of its members and its mode of organization, is governed by no statute or prescribed rule of any kind. Orginating, as it did, under circumstances altogether different from those of the Commons House of Parliament, it must necessarily, for its own guidance, bave given birth to a set of principles entirely at variance from those of a Legislature which sprung in the first instance from the will of a monarch, and was only enabled after many generations of contest between their own privileges and the prerogatives of the Crown, to establish something like the independence and stability of a representative body.

Congress, as is well known, took its origin in the conventions or assemblies of deputies sent by the Colonies to consult for their defense and mutual welfare in a time of common danger. The first that met in Philadelphia in 1774, was composed of men possessing every variety of credentials. Some were deputed by the colonial Legislature, others by popular assemblies, and others again by mere committees of safety.

Assembling, however, at the imminent hazard of their fortunes and their lives, the simple presence of any man was a sufficient guarantee of his honesty and zeal. Conring together for the first time, personally as strangers to each other, but well known as the bold defenders of a common cause, they forthwith, making no question of each other's authority, proceeded to elect a President to preside over their deliberations, and a Secretary to record their proceedings. After they had formed themselves into a deliberative body they then caused the credentials of those present to be read and approved. The Congress which assembled in May, 1775, was organized in the same way, not calling for the credentials of members until the House had been formed. After the Articles of Confederation had been adopted the mode of organizing Congress was varied. The credentials were first produced and passed upon before they proceeded to the election of officers.

In the Second Congress, which met under the Articles of Confederation, the Delegates produced their credentials in the first instance, which were read and referred to a com mittee "to report thereon as soon as may be." The committee reported the next day, and all being approved they then proceeded to the election of President and Secretary. This preliminary examination by a committee was never practiced before nor after the Congress which met in 1784. In 1785 they handed in their credentials, which were read without being referred, and then proceeded to their elections. At the next Congress, in 1786, the credentials were referred to a committee after the election of officers, but were not reported on until a late period.

The Journals after the first Congress, which met under our present Constitution, run in these words: "The following members of the House of Representatives appeared, produced their credentials, and took their seats." And such is the tenor of every Journal until a very recent date. Thus, it appears, that from the first time we had any organized system for the government of the States, some kind of credentials or evidence of membership was expected and required before any one could participate in the deliberations of Congress. But the nature of those credentials, and the mode of determining their validity, have always been various, and to this day are not directed by any general law. The Constitution has conferred on Congress the power of adopting a system of general regulations in regard to the elections and the returns. But this provision justly excited the jealousy of those who were friendly to the independence of the States. It was warmly resisted by many of the State conventions assembled to adopt the Constitution; and the point was only yielded on the promise that the Constitution should be amended in that particular so soon as it had been adopted. Accordingly, at a very early period in the First Congress, Mr. Burke, of South Carolina, moved the following amendment: "Congress shall not alter, modify, nor interfere in the times, places, or manner of holding elections of Senators or Representatives, except when any State shall refuse, or neglect, or be unable, by invasion or rebellion, to make such elections." It was argued. in favor of this amendment," that the clause of the Constitution conferring on Congress the power to regulate elections was obnoxious to almost every State; that it put it in the power of that body to establish a Government of an arbitrary kind. "If the United States are desirous of controlling the people, they can do it by virtue of the powers given them in the fourth section of the first article; and whenever they choose to exercise those powere, then farewell to the rights of the people, even to "clect

New Jersey Election-Mr. Clifford.

their own Representatives. When did a confederated Government have the power of determining on the mode of their own election? In the order of things, that power should rest with the States respectively, because they can vary their regulations to accommodate the people, in a more convenient manner than can be done in any general law whatever." Such were the arguments advanced in defense of the amendment; but it was lost by a majority of five votes. So obnoxious, however, is any general law of elections, that though many arguments of convenience and expediency might be urged in its favor, none has ever been adopted; repeated attempts have been made, but always signally failed; and we may venture to say that none ever will be adopted, so long as the great and important doctrine of State rights is regarded.

In the mean time, the mode of procedure in regard to the organization of the House, and the admission of members, seems to have varied at different times, and never controlled by any general parliamentary principle. Of late years those evidences of membership, called credentials, are forwarded by very few of the States, and are rarely ever presented by members; so that the phrase found in the older Journals, "presented their credentials," has not been inserted for the last twenty years because it expressed an untruth, none ever being presented.

It has now become a matter of vital importance to elicit from past experience and former precedents some general principle governing all cases, and admitted as a sufficient rule by which the title of membership, in the first instance, shall be determined and the House provisionally organized. And for this purpose, bearing in mind that this provisional organization is a mere incipient stage toward a more perfect legislative body, and always subject to the control of a majority, there can be no better rufe than that which has been practiced on by Congress from a time that the memory of man runneth not to the contrary. The rolls of the House of Representatives have always been made up from those names who, from common notoriety and the general consent of all parties, were acknowledged to be members of Congress. Common faine and newspaper reports may appear to be a slender reliance for so important a matter, but, when further examined, will prove of highest and most trustworthy authority. The press has become a fourth estate in the government of civilized society. All matters appertaining to elections, returns, and public characters, are thoroughly sifted and made known to the whole world. Our country, too, ever has been and ever will be divided into two contending parties; these principles of hostility are implanted in the human heart, and, in some form, will ever exhibit themselves, and a wakeful jealousy will ever keep them observant of each other's conduct; so that by means of these opposing elements, with the aid of the press, the truth, and the whole truth, in regard to any political matter, may be as well known to those who live in the remotest parts of the Union as to those who were eye-witnesses of the transaction.

Our elections are not held in obscure boroughs, and by a few electors, as in England. Fifty thousand people are interested in the result of each election. An active and warm canvass commences between the contending parties for many days before the voting is commenced; the candidates in many States go from house to house, from village to village, discussing important questions and setting forth their respective claims. In other States the same publicity is given to their proceedings through the press. When the election comes on, hundreds in open day press to the polls to give their votes. The progress of the election is watched from the beginning by suspicious, vigilant, and anxious partisans of the respective candidates.

The result, when announced, is known through the entire district, spread on the wings of the wind through the State, and soon becomes the subject of speculation and of interest to the intelligent portion of fifteen million people. It is obvious, therefore, that by this process it is utterly impossible for any fraud or deception to be practiced without immediate detection. The precise state of the poll, the number of votes given, the exact majority, and all questions and disputes growing out of the elections, become the most prominent part of the history of the day; and no private papers, (as all credentials are,) however well authenticated, can enable the proper officer to make up a more complete and satisfactory roll of members than he can form from the current history of the times. He is made as well satisfied as he can be of any human event, by common notoriety and the consent of all parties, that certain men, (or more properly, as the individual may be unknown,) certain names, are elected as members of Congress; and the next most important point is to identify the name with the Individual actually elected.

The mode pursued by Congress in this respect also is a plain and simple one. When the day appointed by the Constitution and the laws for the meeting of Congress has arrived, and those who are members, or claim to be members, present themselves in their usual place of meeting, and when, at the appointed or usual hour, the officer to whom has been intrusted, by long and undisputed usage, the duty of making a roll of members on the principles above indicated, presents himself, announces that he is about to call the names of those who are members of the House of Representatives-when he actually calls a name, and one rises from his seat, or audibly answers to that name, there can be no question in the mind of any one that he is the individual actually elected and entitled to his seat. Under color of a piece of paper or parchment, which he can procure by fraud or bribery, and under protection of the secret ballotbox, one might have the hardihood to present himself, go through the forms of initiation, and aid in doing infinite mischief in subverting the Constitution itself-before he could be detected; and then, by the aid of his own voice, might save himself from ejection and punishment.

But here no one can conceive the possibility of such a thing. It is not in the human heart to strain itself up to the practice of a fraud, surrounded by existing circumstances, Silence andsecrecy are essential to the perpetration of crime. But here are assembled, in open day, the Represcutatives of six-and-twenty States; and a vast con

HO. OF REPS.

course of people from all parts of the Union, auxiously watching the minutest procedure. Can it be possible that one would rise in such a presence and answer to a name that is not his, and elaim a seat to which he has no title? It is not in man to play so base a part. When, therefore, the roll has been called through, and a sufficient number have answered to their names to constitute a quorum, there is then a House of Representatives, as contemplated by the Constitution; for it says, each House shall elect its own officers. As there are Parliaments, so there must be a flouse of Representatives, before the election of Speaker. Aud there is no other way in which a House can be constituted than the one just described. When that process has been completed there is then a House of Representatives competent to entertain and decide all questions touching the privilege of members, the ekums to contested seats, and all matters appertaining to their more complete organization. They cannot enter on the ordinary business of legislation as prescribed and limited by the Constitution, because they have not taken the oath to support the Constitution; which, by some inadvertence, is required to be administered, not by a judicial officer, but by the Speaker himself after his election.

While thus engaged in the adjustment of preliminary questions, the House must be governed by the common law of Parliament, without which no deliberative body can exist. It is true they are not bound by the rules of a preceding Congress; but those rules, like statutes, do not create or destroy, but only limit and define a general principle. Take away the limitations and the principle exists in its original force.

When thus constituted and organized into a House of Representatives, it is then the duty of the proper officer to lay before them all contested cases, and the evidence in his possession, that they may proceed, according to the Constitution, to decide on the elections, returns, and qualifications of those contesting. After the most laborious investigation into all the precedents, from the earliest times, both in our own country and in Eugland, I have come to the conclusion that this is the only safe and proper course to be taken.

Though long usage and the necessity of the case have imposed on the Clerk of the House the daty of making roll of members to be called at the opening of Congress, yet he has no authority whatever to interpose in doubtful cases or throw any obstacle in the way of an immediate adjustment by the House. Where there are no difficulties his course is plain; but in all matters of doubt he is bound to present the evidence in his possession and throw the responsibility of deciding, where it has been placed by the Constitution, on the Representatives of the people. No party can take exceptions, no individual can be aggrieved by this course. It will be as much in the power of the House to act on them when called at the end of the roll as if they had been called in the regular routine, according to past usage. And by the mode here proposed, one great advantage will begained in having a House organized and competent to decide all questions touching the privilege of members before any contested cases shall come before them for consideration.

Believing that Congress, originating in peculiar circumstances, and being a Government of confederated States, must necessarily be controlled by laws different from those of the House of Commons, or the State Legislatures exercising jurisdiction over a consolidated mass; believing that the present mode of testing and recognizing members is more efficacious than any positive enactment can be made; that it is more open, impartial, and consistent with our federative system, and that it is less liable to be perverted, under color of law and strict technicalities, into an instrument of fraud; believing that when a roll, made up of the names of those who, by common notoriety and the general consent of all parties, were recognized as members of the House of Representatives, has been called through, and a sufficient number have answered to their names to constitute a quorum, that then there is a House of Representatives as understood by the Constitution, controlled by the common law of Parliament, and competent to decide all questions touching the privileges of members; and believing that then, and not before, all contested cases, with the accompanying testimony, should be laid before them for consideration, I feel it a solemn duty incumbent on me to proceed in this mode to organize the House, so far as necessity and unbroken usage from time immemorial have thrown that task on the Clerk of a preceding Congress.

Having made a roll of those names who, by general notoriety and the common consent of all parties, were members of Congress, I prepared a brief statement of the New Jersey contested case in the following words, which it was my intention to lay before the House as soon as a quorum was ascertained to be present:

STATE OF NEW JERSEY. Double Return.

There is in my possession commissions of the Governor of New Jersey, addressed to JOHN BANKER AYCRIGO, WILLIAM HALSTED, JOHN P. B. MAXWELL, JOSEPH F. RANDOLPH, CHARLES C. STRATTON, and THOMAS JONES York, Esqs., of which the following is a copy:

STATE OF NEW JERSEY.

TO JOHN B. AYCRIGO,

Of the County of Bergen, Esquire, greeting: It appearing to the Governor of the State of New Jersey, and the Privy Council thereof, that you have been elected by the people of the State of New Jersey to represent the said State in the House of Representatives of the TwentySixth Congress of the United States, you, the said JOHN B. AYCRIGG, are therefore commissioned to represent the

*It is, indeed, the course indicated by Congress as the proper one, in the famous Moore and Letcher case, when both gentlemen voluntarily retired in the first stage of the organization; and this act of theirs was afterward approved and confirmed by a vote of the House.

26TH CONG....1ST SESS.

admit it; and let those who maintain it look well to the ground upon which they stand, "lest they fall."

But, if the right of ascertaining its own members is not expressly granted to this House before the election of Speaker, it is clearly and necessarily to be implied from the power of organization, which it is admitted is expressly conferred in the latter clause of article first, section second, before cited, that the House of Representatives shall choose their Speaker and other officers, which is the only organization contemplated or known in this branch of Congress. The right to elect a Speaker is clearly an express grant. But how is the power contended for to be enforced? To this I answer emphatically, that it is properly an incident to the right of formation, and necessary to its execution, to prevent the minions of party from trampling under foot the most important element of a republican government-the sovereignty of the people. My language, sir, will inform you of the source from which my principles of construction are drawn.

It is marvelous that any appeal should be made to the doctrine of State rights, in the sense in which I have been taught to respect it, as a defense of one of the grossest attempts in the annals of the nation to prostrate the vital principle upon which the doctrine is based. State rights! Let me refer to one of its founders:

"Whenever, therefore, a question arises concerning the constitutionality of a power, the first question is, whether the power be expressed in the Constitution. If it be, the question is decided. If it be not expressed, the next inquiry must be, whether it is properly an incident to an express power, and necessary to its execution. If it be, it may be exercised by Congress. If it be not. Congress cannot exercise it."-Virginia Resolutions, 1799, 1800.

The application is so apparent that no comment can give strength to it. These rules, in my estimation, may be safely applied to every part of the Constitution, without, in any instance, hazarding the intention of the framers; and if they were more studied, more carefully adhered to, and less talked about, there would be greater safety to the country against any infraction of the fundamental law. Such are, very briefly, my views as to the true rendering of the Constitution; but I will take the liberty to remark, before leaving this branch of the inquiry, that the whole subject of construction is very elaborately considered in the resolutions to which I have adverted, as a sound exposition of the implied powers of Congress.

The doctrine of casus omissus, in regard to the element of which the popular branch of this Government is composed, or the right and power of perfecting that element into the form of a constitutional House of Representatives, cannot be admitted. It is too deadly in its consequences to receive favor, even for a moment. The framers of the Constitution could not have overlooked so important a matter, for it will be remembered that the foundation principle in the formation of this body, under the Constitution, is the right of the people to choose their own Representatives. It is an important right, and one that gave birth to the revolutionary scenes of our country, of which New Jersey may boast her full share, and to which the gentleman from Pennsylvania [Mr. SERGEANT] adverted with so much fervor and eloquence. It is one for which the patriots of that day contended with earnest solicitude, and when entreaty proved fruitless, and all peaceful efforts to secure it had failed, they did not hesitate, in the defense of it, to pledge their lives, their fortunes, and their sacred honor; and now, when it is amply secured, it should not be hazarded by construction, or defeated by fraud. The struggle to which the honorable gentleman alluded was not for "seals" or "stamps," nor even for the forms of law. The people of that day had enough of these ensigns of monarchy; the allusion is a perversion of history; they fought for liberty, and the right of representation.

Even in the British House of Commons, where this principle is less understood, and consequently less highly valued, from immemorial usage, in cases of double returns, both claimants are required to retire and are refused the right to participate in the doings of that body until their respective claims have been investigated and decided by the undisputed members.

The right to decide implies a time to examine

New Jersey Election-Mr. Clifford.

and consider. The necessity of decision upon a controverted right to represent precludes the exercise of the right, if it may be called such, pending the necessary investigation, and while its existence is undetermined, unless it be better that the people shall be misrepresented in the councils of the nation, through the medium of fraudulent returns, than not represented at all. The foreign embassador cannot be accredited, while his official character is in dispute. A decision cannot be expected upon any just principles without a full investigation; controverted facts must be proved; time must be allowed to procure evidence, and to consider it, after it is produced; and whatever delay may be necessary to the prerequisites of a final determination may be fully justified by the authority which is expressly conferred to "judge." If the House may judge, it must first hear. The parliamentary usage which excludes the exercise of delegated power, while it is uncertain whether it has been conferred, is but the dictate of common sense which pervades the general transactions of life. In matters of business, commercial men do not have transactions with an agent while his agency is in dispute. No, sir, that enterprising and valuable class of our citizens are too provident in their dealings to entertain for a moment a principle so much at variance with common prudence, and so hazardous in its consequences.

If there was any ground to believe that the desire, to be consistent, could have any influence over the prejudice of party feeling, I would endeavor to convince honorable gentlemen of the minority that they are committed to the principles which I maintain in reference to the subject under consideration, unless it be said that Kentucky is not now "in the line of safe precedents." But however that may be, I propose to strengthen my position, that the power to judge of the returns is coextensive with the assembling of the members by adducing a few authorities from the Journals and decisions of the House, from which it will also appear that as a party they cannot escape the charge of inconsistency, though the fact may be ever so unavailing:

"On the first day of the meeting of the Twenty-Third Congress the House was, agreeably to usage, called to order by its acting Clerk, Mr. St. CLAIR CLARKE, who pro ceeded to call the roll of the members by States, beginning with the State of Maine. Having proceeded as far as the State of Kentucky, before its members were called Mr. ALLAN, of that State, rose and asked permission to address the House. He observed, among other things, that the State of Kentucky had been declared entitled to thirteen Representatives, but that in casting his eyes around the Hall lic recognized fourteen gentlemen ostensibly claiming to be Representatives and members of the House. From the circumstances of the case it was obvious that the question of their right to a seat must be decided in the present stage of the proceedings. The question arising from these conflicting claims was one deeply interesting, not only to their own Immediate districts, but to the State at large; so much so that the delegates from the State had met together, and deemed it their duty to take the novel case under their most serious consideration."

The Federal delegation in that Congress, from the State of Kentucky, included in its number some of the ablest lawyers in the country, and were very competent to decide, after "a most serious consideration," at what stage of the proceedings it was obvious that the question of right should be determined. It has been well said that principles never change. What was obvious then is equally obvious now, though a certain class of politicians may not be able to perceive it with equal clearness. The whole argument resolves itself into a mere question of expediency, or rather of inconvenience. Usage has been much relied upon as condemning the course of the majority. It may safely be admitted that the argument of inconvenience, as to the time of exercising the acknowledged power of the House over the election and returns of its members in ordinary cases of contested election, before organization, presses itself with much force. It may or may not be exercised, as the magnitude of the question and the circumstances out of which it has grown may seem to justify. The canvass must be had, but the members, under the limit of a sound discretion, may determine at what period of the session it is expedient to enter upon its examination. Usually it is not expedient to do so in the incipient stages of organization. Hence the usage to which reference has been made. The case from New Jersey stands alone in the history of the

HO. OF REPS.

country. It has no parallel. No one has undertaken to deny the expediency of investigation, if we have the power.

In further prosecuting this inquiry, let me again refer to the case of Letcher and Moore, where the power contended for was distinctly maintained and admitted by the most talented men of both of the great political partics of the country, and solemnly affirmed by the House. Mr. Allan, in the conclusion of his remarks, said:

"In order to enable the House to decide the controversy between these claimants, he would ask the Clerk whether he had in his possession any certificates or other vouchers in relation to the election in the district from which both these gentlemen came, and if he had, he would call for the reading."

The papers were read, including the "poll books, duly certified."

No one can deny that the facts of the two cases are precisely similar, as well as the course of proceeding. The authority of this case, in the aspect in which it is now presented, has not been assailed, but has been passed by in silence. It is impossible to escape it on the score of acquiescence, for up to this time the parties had made no arrangement, as will be readily perceived by the published debates to which I refer, as well as to what succeeded.

Mr. Wayne, of Georgia, an Administration member, said:

"The person claiming to be substituted for the individual upon the roll ought to produce his credentials, and say whether those were the papers on which he intended to found his claim to a seat. If that were done, he would be ready to pass upon them."

Mr. Allan, a Whig member, in his second speech, said that

"He understood himself to possess the right of rising, and presenting the question in this case to the House. This was a House; under the view of the Constitution it was competent to perform any act pertaining to the House of Representatives, and its first duty was to ascertain who were its own members. This was a representative Government, and the first question which demanded attention was, whether individuals claiming to be their Representatives were actually their Representatives."

Mr. Burges said:

"The House ought to go behind that paper (the returns) to the poll-books, to ascertain whether the electors did voté or not, and then leave the question of their right to vote, &c., to the Election Committee. He repeated, that in their decision the House were bound to approximate as closely as possible to the people, in order to the better understanding of the public will."

Mr. Archer, among other things, said in the second stage of the proceedings:

*

"He could not avoid expressing his unfeigned surprise at the observations that had fallen from several gentlemen who had addressed the House on both sides of the question." * "He contended, as we understood him, that the House ought at once to decide without referring it first to a committee, and that the course pursued by several honorable gentlemen who preceded him, went to abrogate the most important rights and privileges of that assembly. What did the Constitution say? Why, that the House was to be the sole judge of the elections, returns, and qualifications of its members.' It would be derogatory to that legislative body to say aught against this doctrine." There was another view of the question, and one of great import, which should be considered, and that was, suppose a return was made, perfect in all its formns, and at the moment of presenting it, a gentleman were to rise and offer to prove at the bar of the House that the return was an imposition, would any honorable member tell him that the House was precluded from entertaining such an allegation? If a merc return were deemed a sufficient qualification, then any one producing a required form became at once a member of that House."

*

Mr. Jones, of Georgia, said:

"Mr. Letcher (the Federal claimant) had produced his certificate, (the poll-books,) in which it was certified that the majority of qualified voters in the whole five counties had given their votes in his favor. It had been argued, and correctly argued, that he who had such a majority was the member entitled to a seat."

Mr. Beardsley said:

"He conceived that gentlemen were mistaken in supposing that it had been argued that the House had not the power of looking back to facts and circumstances connected with the certificate which had been offered by Mr. Moore at the table. The argument that he had heard, was that the usual mode of proceeding was not to go behind a certificate on question as to its validity."

This disclaimer was made necessary by the evident mistake of the gentleman from Virginia who had preceded him, and is very strongly corroborative of the ground assumed that in the discussion of that case both parties denied any limitation as to the power of the House to canvass the returns, and ascertain its own members.