[Cannon's Precedents, Volume 6]
[Chapter 157 - The Oath As Related To Qualifications]
[From the U.S. Government Printing Office, www.gpo.gov]


                 THE OATH AS RELATED TO QUALIFICATIONS.

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   1. Provisions of the fourteenth amendment. Sections 56-59.

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  56. The case of Victor L. Berger, of Wisconsin, in the Sixty-sixth 
Congress.
  For disloyalty to the United States, for giving aid and comfort to a 
public enemy, for publication of expressions hostile to the Government 
a Member-elect was denied a seat in the House.
  The Committee on Elections declined to be governed by judgment and 
verdict of judge and jury of Federal court and proceeded to determine 
for itself the question of guilt or innocence of Member-elect charged 
with violation of Federal laws.
  Nature and limitations of the constitutional power of expulsion 
discussed.
  The constitutional power of expulsion is limited in its application 
to the conduct of Members of the House during their term of office.
  On October 24, 1919,\2\ Mr. Frederick W. Dallinger, of Massachusetts, 
from the Special Committee on Victor L. Berger Investigation, submitted 
the report of the majority of the committee.
  On May 19, preceding,\3\ at the organization of the House, when the 
State of Wisconsin was called, during the administration of the oath to 
Members, Mr. Dallinger challenged the right of Victor L. Berger, a 
Member-elect from that State, to be sworn in. By direction of the 
Speaker \4\ the Member-elect stood aside and the administration of the 
oath to Members was concluded.
  Thereupon Mr. Dallinger offered the following resolution which was 
agreed to:

  Whereas it is charged that Victor L. Berger, a Representative-elect 
to the Sixty-sixth Congress from the State of Wisconsin, is ineligible 
to a seat in the House of Representatives; and
  Whereas such charge is made through a Member of the House, and on his 
responsibility as such a Member, and on the basis, as he asserts, of 
public records and papers evidencing such an ineligibility:

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  \1\ Supplementary to Chapter XIV.
  \2\ First session Sixty-sixth Congress; House report 413; Record, p. 
7475.
  \3\ Record, p. 8; Journal, p. 7.
  \4\ Frederick H. Gillett, of Massachusetts, Speaker.
Sec. 56
  Resolved, That the question of the prima facie right of Victor L. 
Berger to be sworn in as a Representative of the State of Wisconsin of 
the Sixty-sixth Congress, as well as of his final right to a seat 
therein as such Representative, be referred to a special committee of 
nine Members of the House, to be appointed by the Speaker; and until 
such committee shall report upon and the House decide such question and 
right, the said Victor L. Berger shall not be sworn in or be permitted 
to occupy a seat in this House; and said committee shall have power to 
send for persons and papers and examine witnesses on oath relative to 
the subject matter of this resolution,

  The findings of fact by the committee appointed pursuant to this 
resolution are in part as follows:

  Victor L. Berger was born in Austria in 1860 and came to this country 
in 1878, settling in Bridgeport, Conn.
  In 1911 he started the Milwaukee Leader, which was at first a weekly 
and later became a daily paper, of which he has been the editor ever 
since. In 1910 he was elected as a Socialist to the Sixty-second 
Congress from the fifth district of the State of Wisconsin, taking the 
usual oath of a Member of Congress to support the Constitution of the 
United States, and serving from March 4, 1911, to March 4, 1913. At the 
election held on November 5, 1918, he was again elected as a Socialist 
to the Sixty-sixth Congress.
  Diplomatic relations between the United States and Germany were 
broken off February 3, 1917, and in March, 1917, the President issued a 
proclamation calling a special session of Congress, which, on April 6, 
1917, passed a joint resolution declaring the existence of a state of 
war between this country and the Imperial German Government.
  On April 7, 1917, on the call of the executive committee, of which 
Victor L. Berger was one of the five members, there was convened in St. 
Louis an emergency national convention of the Socialist Party, at which 
a ``Proclamation and War Program'' was adopted, a copy of which will be 
found on page 117 of volume 2 of the printed hearings, and which ex-
President Roosevelt characterized as ``treason to the United States.'' 
This proclamation and war program was favorably reported to the 
convention by the committee on war and militarism, of which Victor L. 
Berger was a member, and his name was signed to the report.
  On April 14, 1917, the Milwaukee Leader characterized the report as a 
``cool, scientific Marxian declaration,'' a copy of the entire 
editorial in which this characterization appears being reprinted on 
page 906, of volume 1 of the printed hearings; and on December 30, 
1917, Berger published an editorial in the Milwaukee Leader entitled 
``The Party Will Stand No Wobbling,'' a copy of which will be found on 
page 907 of volume 1 of the printed hearings, which was plainly 
intended to intimidate D. W. Hoan, the Socialist mayor of Milwaukee, 
who had doubted whether he could subscribe to the Socialist war program 
without violating his oath of office.
  This ``Proclamation and War Program,'' which was signed by Victor L. 
Berger, was published in both the Milwaukee Leader and the American 
Socialist, and was printed and distributed in pamphlet form throughout 
the country, during the period from April to October, 1917, to the 
extent of over a million copies.
  The St. Louis convention also adopted a platform making certain 
political demands, among them being ``Resistance to compulsory military 
training and to the conscription of life and labor,'' and the 
``Repudiation of war debts.''
  On August 13, 1917, 300,000 copies of this platform were printed by 
order of Adolph Germer, the national secretary, and the platform was 
also published in the Milwaukee Leader September 8, 1917.
  On July 18, 1917, at the time the Government was preparing to float a 
Liberty loan, the Milwaukee Leader referred to the repudiation of war 
debts plank in the Socialist platform as being s sentiment that would 
``gain rather wide popularity as time went on.''
  The American Socialist, of which J. Louis Engdahl was editor, Adolph 
Germer business manager, William F. Kruse and Irwin St. John Tucker 
frequent contributors, and the title to which was in the name of the 
national executive committee of the Socialist Party, of which Victor L. 
Berger was a member, contained a series of articles from the time of 
our entrance into the war
                                                              Sec. 56
and throughout the year 1917, copies of which will be found in full in 
the Government exhibits of the printed hearings.
  The article entitled ``The Price We Pay,'' written by Irwin St. John 
Tucker, was afterwards printed as a pamphlet and widely circulated by 
Germer, the national secretary, during the summer of 1917. On June 9, 
1917, the Milwaukee Leader in an editorial favorably commented upon 
this pamphlet and its sale was repeatedly advertised in its columns.
  In the Milwaukee Leader, of which Victor L. Berger was the editor in 
chief, and for all articles in which, both at the Chicago trial and 
before your committee, he assumed full responsibility, there appeared 
during the period from June 18 to September 13, 1917, a series of 
editorials and articles, copies of which will be found on pages 514 to 
530, inclusive, of volume 1 of the printed hearings. As a result of the 
publication of these articles, on October 3, 1917, the second-class 
mailing privilege of the Milwaukee Leader was revoked by the Postmaster 
General, on the ground that the matter there published evinced a 
purpose and intent to ``willfully make or convey false reports or false 
statements with intent to interfere with the operation or success of 
the military or naval forces of the United States, to promote the 
success of its enemies during the present war, and willfully cause and 
attempt to cause insubordination, disloyalty, mutiny, and refusal of 
duty in the military or naval forces of the United States, and to 
willfully obstruct the recruiting or enlistment service in the United 
States, to the injury of the service and of the United States,'' under 
the provisions of section 1 of Title 12 of the act of June 15, 1917, 
commonly known as the espionage act. The Court of Appeals of the 
District of Columbia, a copy of the decree of which will be found on 
page 504 of volume 1 of the printed hearings, in affirming the judgment 
of the lower court in dismissing a petition for a writ of mandamus, 
says in regard to these articles:
  ``No one can read them without becoming convinced that they were 
printed in a spirit of hostility to our own Government and in a spirit 
of sympathy for the Central Powers; that, through them, appellant 
sought to hinder and embarrass the Government in the prosecution of the 
war.''
  In this opinion your committee concurs.
  On February 2, 1918, Victor L. Berger, Adolph Germer, J. Louis 
Engdahl, William F. Kruse, and Irwin St. John Tucker were indicted by 
the grand jury in the District Court of the United States for the 
Northern District of Illinois, eastern division, for the violation of 
the provisions of sections 3 and 4 of Title 1, of the act of June 15, 
1917, known as the espionage act.
  Their trial, which was a most exhaustive one, began in Chicago on 
December 9, 1918, before Judge Landis and a Federal jury, and on 
January 8, 1919, the defendants were found guilty as charged in the 
indictment, and on February 20, 1919, each was sentenced to 20 years' 
imprisonment in the United States Penitentiary at Fort Leavenworth, 
Kans. An appeal from this decision was taken by the defendants, which 
is still pending in the United States Circuit Court of Appeals for the 
Seventh District.
  Your committee decided at the outset that it would not be governed by 
the action of the judge and jury at the Chicago trial, but would 
carefully consider all the evidence both at that trial and in the 
proceedings before the Court of Appeals of the District of Columbia, 
together with all the evidence introduced at the hearings before the 
committee, to determine for itself the question of whether or not 
Victor L. Berger was guilty of a violation of the espionage act, 
whether or not he did give aid or comfort to the enemies of the United 
States during the war with Germany, and whether or not he is ineligible 
to a seat in the House of Representatives.
  After a careful consideration of all the evidence, in the opinion of 
your committee the admitted acts, writings, and declarations of Victor 
L. Berger and of the men with whom he was associated in the management 
and control of the Socialist Party from the time of the entrance of 
this country into the war until their indictment by a Federal grand 
jury, giving such acts and the language of the writings and 
declarations their ordinary everyday meaning and without considering 
any other evidence, clearly establishes a conscious, deliberate and 
continuing purpose and intent to obstruct, hinder, and embarrass the 
Government of the United States in the prosecution of the war and thus 
to give aid and comfort to the enemies of our country. The writings and 
activities of Mr. Berger and his associates could have had no other 
purpose. That Victor L. Berger was disloyal to the United States of 
America and did give aid and comfort to its enemies at a time when its 
existence as a free and independent Nation was at stake there can not 
be the slightest doubt.
Sec. 56
  The briefs submitted in the case contended that the House was without 
authority to expel a Member-elect. As to this contention the majority 
report says:

  Inasmuch as some question has been raised as to the authority of the 
House of Representatives to exclude a Member elect, it may be well to 
review briefly the legal precedents involved in the present case.
  Section 5, Article I, of the Constitution A the United States, 
provides:
  ``Each House shall be the judge of the elections, returns, and 
qualifications of its own Members.''
  Under this provision of the Constitution, the House of 
Representatives has always maintained its absolute right to exclude 
Members-elect and to prevent their taking the oath of office.

  The report then discusses the right of the House to exclude, as 
maintained by decisions of the House, in the Kentucky Cases of 1867, 
the Whittemore case in the Forty-first Congress, the case of Cannon v. 
Campbell in the Fortyseventh Congress, and the Roberts case in the 
Fifty-sixth Congress. The report thus differentiates between the last 
two cases and the case at bar:

  In the present case there is a fourth qualification prescribed by the 
Constitution, or rather a fourth prohibition, as the qualifications set 
forth in the Constitution are put in negative form, which applies to 
Representative elect Berger, and did not apply in the Cannon and 
Roberts cases. Section 3 of the fourteenth amendment to the 
Constitution of the United States provides as follows:
  ``No person shall be a Senator or Representative in Congress, who, 
having previously taken an oath, as a member of Congress, or as an 
officer of the United States, or as a member of any State legislature, 
or as an executive or judicial officer of any State, to support the 
Constitution of the United States shall have engaged in insurrection or 
rebellion against the same, or given aid or comfort to the enemies 
thereof. But Congress may, by a vote of two-thirds of each House, 
remove such disability.''
  In reference to this very plain prohibition of the Constitution, 
counsel for Representative elect Berger contends that the fourteenth 
amendment was adopted as a result of the Civil War and that section 3 
has been entirely repealed by an act of Congress passed in 1898, which 
provided as follows:
  ``That the disability imposed by section three of the fourteenth 
amendment to the Constitution of the United States heretofore incurred 
is hereby removed.
  ``(U. S. Stats. L., vol. 30, ch. 389, p. 432.)''
  It must be perfectly evident that Congress has no power whatever to 
repeal a provision of the Constitution by a mere statute, and that no 
portion of the Constitution can be repealed except in the manner 
prescribed by the Constitution itself. While under the provisions of 
section 3 of the fourteenth amendment Congress was given the power, by 
a two-thirds vote of each House, to remove disabilities incurred under 
this section, manifestly it could only remove disabilities incurred 
previously to the passage of the act, and Congress in the very nature 
of things would not have the power to remove any future disabilities. 
This was plainly recognized when the words ``heretofore incurred'' were 
placed in the act itself.
  It was also seriously contended by counsel that section 3 of the 
fourteenth amendment was an outgrowth of the Civil War and that such a 
provision can not possibly apply to the present case. It is perfectly 
true that the entire fourteenth amendment was the child of the Civil 
War and that its main purpose was the security and protection of the 
political and civil rights of the African race. It is equally true, 
however, that its provisions are for all time, and are as the United 
States Supreme Court well said in the case of Yick Wo v. Hopkins, 
``universal in their application to all persons within the territorial 
jurisdiction, without regard to any differences of race, color, or of 
nationality.'' (Yick Wo v. Hopkins, 118 U.S., 369.) It is inconceivable 
that the House of Representatives, which without such an express 
provision in the Constitution repeatedly asserted its right to exclude 
Members-elect for disloyalty, should ignore this plain prohibition 
which has been contained in the fundamental law of the Nation for more 
than half a century.
                                                              Sec. 57
  57. The case of Victor L. Berger, of Wisconsin, continued.
  As to the meaning of the words ``aid or comfort'' as used in the 
fourteenth amendment to the Constitution.
  As to the meaning of the words ``freedom of speech'' as used in the 
first amendment to the Constitution.
  A Member-elect, who had not taken the oath, was excluded from the 
House for disloyalty.
  Interpretations of the words ``aid and comfort'' as used in the 
fourteenth amendment are reviewed:

  On the question as to the meaning of the words ``aid or comfort'' as 
used in the fourteenth amendment, it was held in the case of McKee v. 
Young, in the Fortieth Congress, to which reference has already been 
made, that ``aid and comfort may be given to an enemy, by words of 
encouragement, or the expression of an opinion from one occupying an 
influential position.''
  In the case of Smith v. Brown, in the same Congress, the only 
evidence relied upon to support the charge of disloyalty was a letter 
written by the contestee to a newspaper.

  Interpretations of the meaning of the words ``freedom of speech'' as 
used in the first amendment are also reviewed:

  It was argued at great length, both by Mr. Berger and his counsel, 
that his conviction at Chicago and any attempt to deprive him of his 
seat in Congress would be a violation of the freedom of speech and the 
press guaranteed by the first amendment to the Constitution of the 
United States.
  In the case of Abraham L. Sugarman v. United States (249 U.S., 182) 
Mr. Justice Brandeis, in delivering the unanimous opinion of the court, 
said:
  ``But `freedom of speech' does not mean that a man may say whatever 
he pleases without the possibility of being called to account for it.''
  In the case of Charles P. Schenck et al. v. United States (249 U.S., 
47), which was a case of conspiracy in which the testimony was very 
similar and in some respects almost identical to that in the present 
case, Mr. Justice Holmes in delivering the unanimous opinion of the 
court said:
  ``But, it is said, suppose that that was the tendency of this 
circular, it is protected by the first amendment to the Constitution. 
Two of the strongest expressions are said to be quoted, respectively, 
from well-known public men.''
* * * * * * * * *

  ``We admit that in many places and in ordinary times the defendants 
in saying all that was said in the circular would have been within 
their constitutional rights. But the character of every act depends 
upon the circumstances in which it is done.''
* * * * * * * * *

  ``The question in every case is whether the words used are used in 
such circumstances and are of such a nature as to create a clear and 
present danger that they will bring about the substantive evils that 
Congress has a right to prevent. It is a question of proximity and 
degree. When a nation is at war, many things that might be said in time 
of peace are such a hindrance to its effort that their utterance will 
not be endured so long as men fight and that no court could regard them 
as protected by any constitutional right.''
* * * * * * * * *

  ``It seems to be admitted that if an actual obstruction of the 
recruiting service were proved, liability for words that produced that 
effect might be enforced. The statute of 1917, in section 4, punishes 
conspiracies to obstruct as well as actual obstruction. If the act 
(speaking or circulating a paper), its tendency, and the intent with 
which it is done are the same, we perceive no ground for saying that 
success alone warrants making the act a crime.''
  In the case of Eugene V. Debs v. The United States of America (249 
U.S., 211), in which case the defendant Debs had been convicted and 
sentenced under the espionage act for a speech made by him at Canton, 
Ohio, on June 16, 1918, Mr. Justice Holmes in delivering the opinion of 
the court said:
Sec. 57
  ``The main theme of the speech was socialism, its growth, and a 
prophecy of its ultimate success. With that we have nothing to do. * * 
*
  ``The defendant addressed the jury himself, and while contending that 
his speech did not warrant the charges, said: `I have been accused of 
obstructing the war. I admit it. Gentlemen, I abhor war. I would oppose 
the war if I stood alone.' The statement was not necessary to warrant 
the jury in finding that one purpose of the speech, whether incidental 
or not does not matter, was to oppose not only war in general but this 
war, and that the opposition was so expressed that its natural and 
intended effect would be to obstruct recruiting. If that was intended 
and if, in all the circumstances, that would be its probable effect, it 
would not be protected by reason of its being part of a general program 
and expressions of a general and conscientious belief.''
* * * * * * * * *

  ``There was introduced also an `antiwar proclamation and program,' 
adopted at St. Louis in April, 1917, coupled with testimony that about 
an hour before his speech the defendant had stated that he approved of 
that platform in spirit and in substance.''
* * * * * * * * *

  ``This document contained the usual suggestion that capitalism was 
the cause of the war and that our entrance into it `was instigated by 
the predatory capitalists in the United States.' It alleged that the 
war of the United States against Germany could not `be justified even 
on the plea that it is a war in defense of American rights or American 
honor.' It said, `We brand the declaration of war by our Government as 
a crime against the people of the United States and against the nations 
of the world. In all modern history there has been no war more 
unjustifiable than the war in which we are about to engage.' Its first 
recommendation was `continuous, active, and public opposition to the 
war, through demonstrations, mass petitions, and all other means within 
our power.' Evidence that the defendant accepted this view and this 
declaration of his duties at the time that he made his speech is 
evidence that if in that speech he used words tending to obstruct the 
recruiting service he meant that they should have that effect.''

  Summarizing the conclusion of the committee on the authority of the 
House in the exclusion of a Member-elect the majority report continues:

  Counsel for Representative-elect Berger spent considerable time both 
at the outset of these proceedings and throughout the hearings in 
arguing the proposition that the House of Representatives has no 
constitutional right to exclude a member-elect, even if guilty of 
treason or other crime, if he presents himself to the House with a 
certificate from the Governor of his State, showing that he has been 
duly elected; and that the only course open to the House is to permit 
the member in question to be sworn in as a member of the House and then 
to expel him by a two-thirds vote. As has already been stated, counsel 
also contended that the prohibition contained in section 3 of the 
fourteenth amendment to the Constitution is no longer applicable.
  As has already been shown in this report, both of these contentions 
are unsound and are not supported either by principle or by precedent. 
In the first place, the House of Representatives has always insisted 
upon its right to exclude members-elect and has also consistently 
refused to expel a member once he has been sworn in for any offense 
committed by him previous to his becoming a member, on the ground that 
the constitutional power of expulsion is limited in its application to 
the conduct of members of the House during their term of office. In the 
second place, as has already been pointed out, the contention that 
section 3 of the fourteenth amendment to the Constitution is no longer 
applicable, is not worthy of serious consideration.

  In conclusion the majority report holds:

  When the attention of counsel for Representative-elect Berger was 
called to those recent decisions of the Supreme Court of the United 
States, he criticized them as being contrary to all the fundamental 
principles of Anglo-Saxon liberty.
  Your committee is convinced that the members of the House of 
Representatives are bound by their oaths to support the Constitution of 
the United States which declares that instrument and all acts of 
Congress passed in pursuance thereof to be the supreme law of the land. 
Inasmuch, therefore, as the espionage act has been declared by the 
Supreme Court of the United
                                                              Sec. 58
States to be in pursuance of the Constitution, no question can now be 
raised by law-abiding citizens as to its full force and virtue. The 
essential purpose of this act was to prevent persons from obstructing 
and embarrassing the Government in the prosecution of the war and all 
the evidence in this case conclusively proves that Victor L. Berger 
from the time of the outbreak of the war until his indictment by the 
Federal grand jury continually did willfully hinder, obstruct, and 
embarrass the Government of the United States and thus gave aid and 
comfort to its enemies, and in the opinion of your committee is unfit 
and ineligible to sit as a member of our highest lawmaking body. That 
he should be permitted, after his treasonable conduct, to occupy a seat 
in the American House of Representatives, is inconceivable. While there 
has in the past been some opposition on the part of a small minority to 
the well established practice of the House of Representatives in 
excluding unfit persons from membership on the ground that the House 
has no right to add to the qualifications prescribed in the 
Constitution, in the present case it is perfectly plain that under the 
Constitution itself, if the House is satisfied that Representative-
elect Berger did give aid or comfort to the enemies of the United 
States, he is ineligible to a seat in this House, and it is not only 
the right but the constitutional duty of the House to exclude him. Your 
committee, therefore, recommends the adoption of the following 
resolution:
  ``Resolved, That under the facts and circumstances of this case, 
Victor L. Berger is not entitled to take the oath of office as a 
Representative in this House from the fifth congressional district of 
the State of Wisconsin or to hold a seat therein as such 
Representative.''

  The report is concurred in by all members of the committee with the 
exception of Mr. William A. Rodenberg, of Illinois, who submits 
separate views in which, without taking issue with the committee as to 
the merits of the case, he advocates the suspension of action on the 
question involved until the court of appeals had passed upon the appeal 
at that time pending before it.
  He did not, however, offer resolutions, and when the case came up in 
the House, November 10, 1919,\1\ the resolution recommended by the 
majority of the committee was, after exhaustive debate, agreed to by 
the House, yeas 311, nays 1.
  58. The Wisconsin election case of Carney v. Berger in the Sixty-
sixth Congress.
  A Member-elect found to have obstructed the Government in the 
prosecution of war, and to have given aid and comfort to its enemies, 
was declared ineligible to membership in the House.
  The opinion of one Member of the Elections Committee, not necessarily 
approved by the House, is insufficient to establish a precedent.
  In judging elections, qualifications, and returns of Representatives 
in Congress, the House does not consider itself bound by constructions 
placed upon State laws by the courts of the State.
  Disqualification of the Member-elect does not authorize the seating 
of a contestant not found to be elected.
  On October 24, 1919,\2\ Mr. Frederick W. Dallinger, of Massachusetts, 
from the Committee on Elections No. 1, submitted the report of the 
committee in the Wisconsin case of Joseph P. Carney v. Victor L. 
Berger.
  At this election Victor L. Berger, the contestee, received 17,920 
votes; Joseph P. Carney, the contestant, received 12,450 votes; and 
William H. Stafford received 10,678 votes.
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  \1\ Journal, p. 571; Record, p. 8219.
  \2\ First session Sixty-sixth Congress; House report No. 414; Record, 
p. 7475.
Sec. 58
  No question was raised as to the regularity of the election or the 
correctness of the election returns. The only question involved was the 
eligibility of the Member-elect and the seating of the candidate 
receiving the next highest number of votes in event of his being 
declared ineligible.
  The case was fully stated in the report of the special committee 
appointed to investigate the eligibility of Victor L. Berger to a seat 
in the House, and the committee concurs in the opinions expressed in 
that report as follows:

  In regard to the first question, your committee concurs with the 
opinion of the special committee appointed under House resolution No. 
6, that Victor L. Berger, the contestee, because of his disloyalty, is 
not entitled to the seat to which he was elected, but that in 
accordance with the unbroken precedents of the House, he should be 
excluded from membership; and further, that having previously taken an 
oath as a Member of Congress to support the Constitution of the United 
States, and having subsequently given aid and comfort to the enemies of 
the United States during the World War, he is absolutely ineligible to 
membership in the House of Representatives under section 3 of the 
fourteenth amendment to the Constitution of the United States.

  This question having been disposed of, the only question remaining is 
whether the contestant, who received the next highest number of votes, 
is entitled to the seat.
  The committee decide:

  The only congressional precedent cited by counsel for the contentant 
is the case of Wallace v. Simpson in the Forty-first Congress. In this 
case neither the contestant nor the contestee were sworn in at the 
convening of the House of Representatives. The matter was referred to 
the Committee on Elections and a subcommittee of that committee 
unanimously reported in favor of the contestant. This report however 
was based on three grounds:
  First. That the ineligibility of the contestee involved the election 
of the contestant.
  Second. That the election was void in six of the nine counties and 
the contestant had a majority in those counties.
  Third. That if no counties were rejected, enough voters were 
prevented from voting by violence and intimidation to have given the 
majority in the district to the contestant if they had voted.
  The first proposition, which is the one on which counsel for the 
contestant in the present case relies, was agreed to only by Mr. 
Cassna, the chairman of the committee, who drew the report; Mr. Hale 
agreed to the second and third propositions; and Mr. Randall to the 
third only. Under a rule of the House at that time a subcommittee was 
authorized to report directly to the House, and in this case the 
subcommittee recommended that the contestant be seated and the House 
accepted the report. (Rowell's Digest of Contested Election Cases, 
1790-1901, p. 245.)
  It is plainly evident, however, that the proposition that the 
ineligibility of the contestee involved the election of the contestant 
was simply the opinion of one member of the committee and did not 
establish a precedent for the House of Representatives. (Rowell's 
Digest of Contested Election Cases, 1790-1901, p. 220.)

  Various other cases cited in support of the contestant's contention 
are discussed by the committee and held not sufficiently germane to be 
considered as precedents.
  In discussing the Wisconsin case of Bancroft v. Frear so cited, the 
committee further declare:

  It is contended, however, by counsel for the contestant in the 
present case that Congress is bound by the laws of the States and 
inasmuch as the case of Bancroft v. Fear is now the law in the State of 
Wisconsin, that the House of Representatives is bound thereby, and that 
Joseph P. Carney, the, Democratic contestant, is therefore entitled to 
a seat in the House. Such, however, in the opinion of your committee, 
is not the law.
                                                              Sec. 59
  In summing up the case the committee conclude:

  Your committee, upon all the law and the evidence, is of the opinion 
that, first, Victor L. Berger, the contestee, is not entitled to the 
seat to which he was elected; and, second, that Joseph P. Carney, the 
Democratic contestant, who received the next highest number of votes, 
is not entitled to the seat. Inasmuch as the special committee 
appointed under authority of House resolution No. 6 has already 
recommended to the House a resolution declaring the contestee 
ineligible, it is not necessary for your Committee on Elections No. 1 
to make a similar recommendation. The committee, however, does 
recommend the adoption of the following resolutions:
  ``Resolved, That Joseph P. Carney, not having received a plurality of 
the votes cast for Representative in this House from the fifth 
congressional district of Wisconsin, is not entitled to a seat therein 
as such Representative.
  ``Resolved, That the Speaker be directed to notify the Governor of 
Wisconsin that a vacancy exists in the representation in this House 
from the fifth congressional district of Wisconsin.''

  The case was considered in the House on November 10, 1919,\1\ 
immediately after the disposition of the case of Victor L. Berger. 
After brief debate the resolutions recommended by the committee were 
agreed to, and the seat was vacated.
  59. The Wisconsin election case of Bodenstab v. Berger in the Sixty-
sixth Congress.
  Two committees of the House having adjudged a Member-elect to be 
ineligible to membership in the House of Representatives, and the House 
having twice refused to seat him, the committee a third time declared 
him to be ineligible, but did not consider it necessary to recommend a 
resolution to that effect.
  The House, after declaring a Member-elect ineligible, refused to seat 
the candidate receiving the next highest number of votes.
  The House declines to seat a candidate receiving less than a 
plurality of the votes cast in the district.
  The English law under which a minority candidate succeeds to a 
vacancy resulting from the disqualification of the majority candidate 
is not applicable under the Constitution.
  On February 5, 1921,\2\ Mr. Frederick W. Dallinger, of Massachusetts, 
from the Committee on Elections No. 1, submitted the report of the 
majority of the committee in the Wisconsin case of Henry H. Bodenstab 
v. Victor L. Berger.
  The contestee in this case was a candidate in a former election and 
received a majority of all the votes cast in the district in that 
election. When he appeared to take the oath, objection was made to his 
being sworn in and a special committee was appointed to investigate his 
eligibility to a seat in the House. The committee reported adversely, 
and on November 10, 1919, the House by a vote of 311 to 1 declared he 
was ineligible.
  On the same day in the House, in deciding the case of Carney v. 
Berger, again declared him to be ineligible and vacated the seat.
  Subsequently the Governor of Wisconsin called a special election to 
fill the vacancy thus created. At this election Victor L. Berger was 
again a candidate and received 24,350 votes, and Henry H. Bodenstab, 
the contestant, received 19,566.
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  \1\ Journal, p. 571; Record, p. 8262.
  \2\ Third session Sixty-sixth Congress, House report 1300; Record, p. 
2085.
Sec. 59
votes. No question was raised as to the regularity of the election or 
the correctness of the election returns, but on January 10, 1920, when 
the contestee again appeared to take the oath of office, the House by a 
vote of 330 yeas to 6 nays agreed to the following resolution:

  Whereas Victor L. Berger, at the special session of the Sixty-sixth 
Congress, presented his credentials as a Representative elect to said 
Congress from the fifth congressional district of the State of 
Wisconsin; and
  Whereas on November 10, 1919, the House of Representatives, by a vote 
of 311 to 1, adopted a resolution declaring that ``Victor L. Berger is 
not entitled to take the oath of office as a Representative in this 
House from the fifth congressional district of the State of Wisconsin 
or to hold a seat therein as such Representative,'' by reason of the 
fact that he had violated a law of the United States, and, having 
previously taken an oath as a Member of Congress to support the 
Constitution of the United States, had given aid and comfort to the 
enemies of the United States, and for other good and sufficient 
reasons; and
  Whereas the said Victor L. Berger now presents his credentials to 
fill the vacancy caused by his own ineligibility; and
  Whereas the same facts exist now which the House determined made the 
said Victor L. Berger ineligible to a seat in said House as a 
Representative from said district: Now, therefore, be it
  ``Resolved, That by reason of the facts herein stated, and by reason 
of the action of the House heretofore taken, the said Victor L. Berger 
is hereby declared not entitled to a seat in the Sixty-sixth Congress 
as a Representative from the said fifth district of the State of 
Wisconsin, and the House declines to permit him to take the oath and 
qualify as such Representative.''

  As the pleadings required by statute had not at that time been 
completed, no action was taken on the contest instituted by the 
contestant.
  Subsequently when testimony and briefs had been submitted the 
committee reported:

  Inasmuch as two committees of the House of Representatives have twice 
reported that Victor L. Berger, the contestee, is not eligible to 
membership in the House of Representatives, and inasmuch as the House 
of Representatives itself has twice, by an overwhelming vote, refused 
to seat the said Victor L. Berger, the contestee, on the ground that he 
is ineligible to membership therein, and inasmuch as there is no 
additional testimony in this case, your committee finds that Victor L. 
Berger, the contestee, is ineligible to membership in the House of 
Representatives, but recommends no resolution, for the reason that the 
House of Representatives has already finally determined that question 
so far as the present Congress is concerned.

  This phase of the case having been disposed of the only question 
remaining to be considered was whether the contestant was entitled to 
the seat.
  At the time of the regular election held November 5, 1918, the 
contestee, Victor L. Berger, had already been indicted for violation of 
the espionage act. At the time of the special election on December 19, 
1919, he had been convicted of the crime for which indicted, and 
sentenced to imprisonment in the Federal penitentiary. Moreover, the 
House of Representatives had by resolution declared him ineligible to a 
seat in the House. It is evident, therefore, that those who voted for 
him at the special election must have had ample notice at the time of 
the fact that he had been adjudged ineligible.
  For this reason the minority views, submitted by Mr. Clifford E. 
Randall, of Wisconsin, argue that the votes cast for contestee are void 
and that as the con-
                                                              Sec. 59
testant received a majority of the votes cast for an eligible 
candidate, he is entitled to be seated.
  In support of that doctrine he cites numerous cases, including that 
of Bancroft v. Frear decided by the Supreme Court of Wisconsin. (Vol. 
144, p. 79, Wisconsin Reports.)
  The majority, however, hold this position untenable, and say that 
while this is the prevailing doctrine in Great Britain, it has never 
been recognized by the United States House of Representatives.
  The majority report continues:

  The committee found that precisely the same question was raised in 
the contested-election case of Maxwell v. Cannon in the Forty-third 
Congress; in the case of Campbell v. Cannon, in the Forty-seventh 
Congress; and in the case of Lowry v. White, in the Fiftieth Congress; 
in all of which the Committee on Elections of the House of 
Representatives rejected the doctrine that where the candidate who 
received the highest number of votes is ineligible, the candidate 
receiving the next highest number of votes is entitled to the office.
  In the previous case of Carney v. Berger, your committee also 
considered very carefully the general question of whether Congress is 
bound by the law of the State in which the contest arises.
  After an exhaustive examination of the authorities, your committee 
came to the unanimous conclusion that where the law of a State in a 
matter of this kind is contrary to the unbroken precedents of the House 
of Representatives in election cases the congressional precedent must 
prevail, anything in the laws of the State or decisions of its supreme 
court to the contrary notwithstanding.
  While it is true that in the present case the voters of the fifth 
congressional district of Wisconsin can fairly be said to have had 
constructive notice of the fact that Victor L. Berger, the contestee, 
was ineligible to membership in the House of Representatives, which 
circumstances was lacking in the case of Carney v. Berger, nevertheless 
this additional fact offers no reason why you committee and the House 
of Representatives should allow a decision of the Supreme Court of 
Wisconsin or of any other State to override an unbroken line of 
congressional precedents and establish a new rule in determining 
contested-election cases in the Congress of the United States.

  The majority then discuss the case of McKee v. Young, cited as a 
precedent for the seating of the contestant, failing to find any 
parallel between that case and the present case, and quoting at length 
from the statement of the Committee on Elections in its report on the 
case of Smith v. Brown in the Fortieth Congress in opposition to the 
English rule.
  In summing up the law and the evidence the majority of the committee 
conclude that while Victor L. Berger is not entitled to the seat and 
has been so adjudged by resolution of the House, neither is Henry H. 
Bodenstab entitled to it, and accordingly recommend the following 
resolution:

  Resolved, That Henry H. Bodenstab, not having received a plurality of 
the votes cast for Representative in this House from the fifth 
congressional district of Wisconsin, is not entitled to a seat therein 
as such Representative.

  The minority concur in the findings of fact as stated by the majority 
report, but differ sharply in their views as to the law applicable to 
the case.
  The English rule, under which the candidate having the next highest 
number of votes is seated when the majority candidate is disqualified, 
is stressed, and the following distinction drawn between cases relied 
upon by the majority and the case under discussion:
Sec. 59
  The precise question involved in this case has never been before the 
House of Representatives. The majority opinion refers to, relies upon, 
and quotes with approval several House decisions in election cases 
which are supposed to be inconsistent with the principles of law 
hereinbefore stated. Examination of these cases demonstrates clearly 
that in none of them was it established that the electors had knowledge 
of the ineligibility of the candidate voted for.

  Each case is discussed separately and the lack of knowledge of the 
candidate's ineligibility on the part of the voters at the time of the 
election is pointed out.
  The minority conclude with the recommendation of a resolution 
declaring Henry H. Bodenstab elected and entitled to a seat in the 
House of Representatives.
  The report was briefly debated in the House on February 25, 1921,\1\ 
and the resolution of the minority declaring the contestant elected was 
disagreed to. The resolution recommended by the majority was then 
agreed to, and the seat remained vacant.
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  \1\ Journal, p. 248; Record, p. 3883.