[Hinds' Precedents, Volume 1]
[Chapter 5 - The Oath]
[From the U.S. Government Publishing Office, www.gpo.gov]
THE OATH.
-------------------------------------------------------------------
1. Provisions of the Constitution and statutes. Sections 127,
128.\1\
2. Form of at organization of First Congress. Section 129.
3. Administration to the Speaker. Sections 130-133.\2\
4. Limited discretion of the Speaker in administering. Sections
134-139.\3\
5. Challenging the right of a Member to be sworn. Sections 140-
150.\4\
6. Disposal of cases of challenge. Sections 151-159.
7. Delays in taking the oath. Sections 160-161.
8. Administration before arrival of credentials. Sections 162-
168.\5\
9. Administration to Members away from the House. Sections 169,
170.
10. Relations to the quorum, reading of the Journal, etc.
Sections 171-181.
11. Status of the Member-elect before taking. Sections 183-
185.\6\
-------------------------------------------------------------------
127. Senators and Representatives are bound by oath or affirmation to
support the Constitution.--Article 6 of the Constitution provides:
The Senators and Representatives before mentioned, and the members of
the several State legislatures, and all executive and judicial
officers, both of the United States and of the several States, shall be
bound by oath or affirmation to support this Constitution; but no
religious test shall ever be required as a qualification to any office
or public trust under the United States.
128. The Member's oath, its form, and the constitutional
requirement.--The Constitution, in article 6, provides that ``the
Senators and Representatives * * * shall be bound by oath or
affirmation, to support this
-----------------------------------------------------------------------
\1\ The iron-clad oath. (Secs. 449, 455 of this volume.) Senate
declines to permit administration of the oath until after choice of a
President pro tempore. (Sec. 118 of this volume.)
\2\ See also sections 81, 232, and 233 of this volume. Oath
administered to Speaker by Member oldest in continuous service. (Sec.
220 of this volume.)
\3\ The Speaker consults the House as to administering the oath in
doubtful cases. (Secs. 396, 519, 520 of this volume.) In later practice
oath is administered to Delegates. (Secs. 400,401 of this volume.)
Right of a contestant to be sworn is complete as soon as his case is
decided favorably. (Secs. 622, 623 of this volume.)
\4\ The procedure in challenging the right of Brigham H. Roberts to
be sworn. (Sec. 474 of this volume.)
\5\ Instance wherein a Member-elect did not present his credentials
pending a contest. (Sec. 44 of this volume.)
\6\ The oath as related to qualifications. (Chap. XIV, Secs. 441-463
of this volume.)
Sec. 129
Constitution;'' and the statutes direct that ``at the first session of
Congress after every general election of Representatives the oath of
office shall be administered by any Member of the House of
Representatives to the Speaker; and by the Speaker to all the Members
and Delegates present, and to the Clerk, previous to entering on any
other business; and to the Members and Delegates who afterwards appear,
previous to their taking their seats.'' \1\
The oath is also prescribed by the statutes,\2\ in the following
form:
I, A B, do solemnly swear (or affirm) that I will support and defend
the Constitution of the United States against all enemies, foreign and
domestic; that I will bear true faith and allegiance to the same; that
I take this obligation freely, without any mental reservation or
purpose of evasion, and that I will well and faithfully discharge the
duties of the office on which I am about to enter. So help me God.
129. At the organization of the first House an order prescribed the
oath to be taken by Members until a law should be enacted.
Administration of oath to Members and Clerk in the First Congress.
On April 6, 1789,\3\ it was, on motion--
Resolved, That the form of oath to be taken by the Members of this
House, as required by the third clause of the sixth article of the
Constitution of Government of the United States, be as followeth, to
wit: ``I, A B, a Representative of the United States in the Congress
thereof, do solemly swear (or affirm, as the case may be), in the
presence of Almighty God, that I will support the Constitution of the
United States. So help me God.''
On April 8, in accordance with an order adopted on the previous day,
the chief justice of New York attended and administered the oath, first
to Mr. Speaker in his place, and then to the Members.\4\
On April 6, previous to adopting the form of oath, leave had been
granted to bring in a bill to regulate the taking the oath. This was
the first bill to become a law, the President affixing his signature
June 1, 1789.\5\
On June 2 the Speaker administered the oath required by the act to
Members who had not taken a similar oath, and to the Clerk.\6\
130. The act of 1789 provides that at the organization of the House
and previous to entering on any other business the oath shall be
administered by any Member to the Speaker and by the Speaker to the
other Members and the Clerk.--Section 30 of the Revised Statutes,
reenacting the act of June 1, 1789, provides:
At the first session of Congress after every general election of
Representatives, the oath of office shall be administered by any Member
of the Home of Representatives to the Speaker; and by the Speaker
-----------------------------------------------------------------------
\1\ Revised Statutes, section 30.
\2\ Revised Statutes, section 1757. The requirements of section 1759
of Revised Statutes in regard to the preservations of the oaths are not
observed in regard to Members or Delegates or the elected officers of
the House. In the Senate, however, the practice has varied, the
subscribing of the oath being required at times. (First session Forty-
eighth Congress, Record, p. 171.)
\3\ First session First Congress, Journal, p. 7. (Gales and Seaton
ed.)
\4\ Journal, p. 11.
\5\ Journal, p. 43.
\6\ Journal, p. 44.
Sec. 131
to all the Members and Delegates present, and to the Clerk, previous to
entering on any other business; and to the Members and Delegates who
afterward appear, previous to their taking their seats.\1\
131. It has long been the practice for the Member of longest
continuous service to administer the oath to the Speaker.--On December
22, 1849,\2\ the oath was administered to Speaker Howell Cobb by Mr.
Linn Boyd, of Kentucky, the oldest Member. The Speaker descended from
his seat to take the oath.\3\
132. On December 5, 1853,\4\ the oath of office was administered to
Mr. Speaker Boyd by Mr. Joshua R. Giddings, of Ohio, ``the oldest
consecutive Member of the House.''
133. On February 1, 1860,\5\ Mr. John S. Phelps, of Missouri, ``the
oldest consecutive Member of the House,'' administered the oath to Mr.
Speaker Pennington.
134. The Speaker possesses no arbitrary power in the administration
of the oath, and if there be objection the majority of the House must
decide.--On January 24, 1871,\6\ Mr. P. M. B. Young, of Georgia,
presented the credentials of Stephen A. Corker, of the Fifth
Congressional district of Georgia, and asked that the oath be
administered to him.
Mr. Benjamin F. Butler, of Massachusetts, objected to the
administration of the oath.
Mr. James Brooks, of New York, made the point of order that, when
credentials in regular form were presented, they did not form a subject
of discussion.
The Speaker \7\ said:
In the organization of the House Members who have credentials from
the governors of their respective States are entered upon the Clerk's
list, and no man is prejudiced, of course. The House is organized upon
the list so made up. But gentlemen coming subsequently are sworn in by
the Chair, if there is no objection. The Chair administers the oath in
cases where there is no objection; but if there be objection, of course
it is a matter which must be determined by the majority of the House.
The Chair possesses no arbitrary power in the matter whatever. It is a
matter which must be determined by a majority of the House. If it were
previous to the organization of the House, of course the gentleman's
credentials would be entered on the Clerk's list and he would be sworn
in with the other Members.
-----------------------------------------------------------------------
\1\ 1 Statutes at Large, p. 23, gives the form of oath at that time
as follows: ``I, A B, do solemnly swear or affirm (as the case may be),
that I will support the Constitution of the United States.''
On January 21, 1884, the House passed the bill (H.R. 3926) repealing
the act of July 2, 1862, and such sections of the Revised Statutes of
the United States as perpetuated the oath prescribed in that act. This
was the repeal of the ``test oath,'' so called. The bill became a law.
(First session Forty-eighth Congress, Journal, pp. 375, 1233; Record,
pp. 551, 1420.) On July 27, 1867 (first session Thirty-ninth Congress,
Journal, p. 1168; Globe, pp. 4267-4273), the House laid on the table by
a vote of 87 to 31 a joint resolution of the Senate for the purpose of
allowing David T. Patterson, of Tennessee, to take his seat in the
Senate without taking the whole of the test oath required by law.
The subject of subscribing to the oath by Senators and
Representatives was discussed somewhat in the Senate on December 19,
1883, when a rule was adopted to enforce the provisions of the Statute.
It was stated in the debate that Senators had not until recently
subscribed to the oaths. (First session Forty-eighth Congress, Record,
p. 171.)
\2\ First session Thirty-first Congress, Globe, p. 67.
\3\ But this is not the present practice. The Speaker stands in his
place at his desk, while the Member administering the oath stands in
the area in front of the Clerk's desk.
\4\ First session Thirty-third Congress, Globe, p. 2.
\5\ First session Thirty-sixth Congress, Journal, p. 165; Globe, p.
655.
\6\ Third session Forty-first Congress, Globe, p. 703.
\7\ James G. Blaine, of Maine, Speaker.
Sec. 135
135. If a Member object the Speaker does not administer the oath to a
Member-elect without the direction of the House, even though the
credentials be regular in form.--On September 10, 1850,\1\ Mr. Linn
Boyd, of Kentucky, presented the credentials of Edward Gilbert and
George W. Wright, Member-elect from the State of California. Mr. Boyd
stated that the Members-elect were present and were ready to take the
usual oath.
Mr. Abraham W. Venable, of North Carolina, objected to the
administration of the oath, and moved that the credentials be referred
to the Committee of Elections.
Mr. James Thompson, of Pennsylvania, made the point of order that it
was the duty of the Speaker to administer the usual oath upon the
presentation of their credentials.
The Speaker \2\ decided that, inasmuch as the fifth section of the
first article of the Constitution constituted ``each House the judge of
the elections, returns, and qualifications of its own Members,''
whenever objection was made it was the duty of the House, and not of
the Speaker, to determine whether or not the oath should be
administered. He therefore overruled the point of order.
Mr. Thompson having appealed, the appeal was laid on the table.
136. On July 3, 1867,\3\ after the organization of the House, the
credentials of eight Members from Kentucky were presented and the
gentlemen presented themselves to be sworn.
Mr. Robert C. Schenck, of Ohio, at this point presented a protest
against the administration of the oath to one of the gentlemen, Mr.
John D. Young, on the ground that he had been disloyal to the
Government during the war.
Mr. Charles A. Eldridge, of Wisconsin, having raised a question of
order, the Speaker \4\ said:
The Chair rules, in accordance with the uniform usage of the present
occupant of the chair and of every occupant of the chair, that it is
for the House to determine what action it win take when a gentleman,
claiming to have been elected a Representative, presents himself to be
sworn. It is for the House to determine.
Later the Speaker referred, in support of his ruling, to the
precedent of July 24, 1866, when Mr. William B. Stokes, of Tennessee,
was challenged when he appeared to take the oath, and his credentials
were referred to the Committee on Elections.
137. On March 7, 1867,\5\ Mr. William E. Niblack, of Indiana,
presented the credentials of A. B. Greenwood, claiming a seat as a
Member from Arkansas, and moved that the same be referred to the
Committee on Elections.
Mr. Thaddeus Stevens, of Pennsylvania, moved that the credentials be
laid on the table, and the motion was agreed to.
A question being made as to whether or not Mr. Greenwood might not be
sworn in on the presentation of the credentials, the SpeakerSec. \4\
said that the oath would not be administered if there was objection,
and that objection had been indicated by the motion to lay on the
table.
-----------------------------------------------------------------------
\1\ First session Thirty-first Congress, Journal, p. 1442; Globe, pp.
1789, 1790.
\2\ Howell Cobb, of Georgia, Speaker.
\3\ First session Fortieth Congress, Globe, pp. 470, 471.
\4\ Schuyler Colfax, of Indiana, Speaker.
\5\ First session Fortieth Congress, Journal, p. 21; Globe, p. 25.
Sec. 138
138. On December 6, 1869,\1\ at the beginning of the second session
of the Congress, a question being raised as to the administration of
the oath to certain Members, Mr. Speaker Blaine said:
The Chair did not propose to administer the oath to any gentleman to
whose admission a single Member on the floor might make objection. The
usage has always been, when there was no objection, to allow a Member
to be sworn in without any further ceremony.
139. In 1866 the Speaker declined to administer the oath to persons
whose credentials were regular, but who came from States declared by
the two Houses not entitled to representation at the time.--On July 23,
1866,\2\ Mr. Lawrence S. Trimble, of Kentucky, proposed, as a question
of privilege, that the oath be administered to Messrs. N. G. Taylor, J.
W. Leftwich, and Edward Cooper, Members-elect from the State of
Tennessee.
The Speaker \3\ said:
The Constitution does declare that each House shall be the judge of
the elections, returns, and qualifications of its own Members; but the
House of Representatives has decided, with the concurrence of the
Senate, that certain States, not represented during the last four years
in the Congress of the United States, shall not be entitled to
representation again until by concurrent action of both branches they
shall be declared to be entitled to representation. The House therefore
declared it had no constitutional right so to judge. The Chair
overrules the demand that the gentlemen claiming seats from Tennessee
shall be sworn in.
Mr. Trimble having appealed, the appeal was laid on the table--yeas
119, nays 30.
140. The Members-elect having denied to certain of their number a
right to participate in the organization, the Speaker declined, without
instruction of the House, to administer the oath to those thus
debarred, although they presented certificates in proper form.
In 1839 the House refused to direct the Speaker to administer the
oath to certain persons having regular credentials as Members-elect,
and as organ of the House he declined to administer the oath.
In 1839 the House declined to adopt rules until the Members had been
sworn in according to the Constitution and law of 1789.
On December 9, 1839, at the organization of the House,\4\ when the
clerk, in calling the roll, had reached the State of New Jersey and had
called the name of Mr. Joseph F. Randolph, he paused and explained that
as to the other five members from that State there was conflicting
evidence as to who were entitled to the seats. Messrs. John B. Aycrigg,
John P. B. Maxwell, William Halstead, Charles C. Stratton, and Thomas
J. Yorke had certificates from the governor of the State. On the other
hand, the Clerk had in his possession certificates from the secretary
of state of New Jersey showing that Messrs. Philemon Dickerson, Peter
D. Vroom, Daniel B. Ryal, William R. Cooper, and Joseph Kille had
received the greatest number of votes.\5\ The controversy over these
New Jersey seats was prolonged until December
-----------------------------------------------------------------------
\1\ Second session Forty-first Congress, Globe, p. 9.
\2\ First session Thirty-ninth Congress, Journal, pp. 1088, 1089;
Globe, pp. 4055, 4056.
\3\ Schuyler Colfax, of Indiana, Speaker.
\4\ First session Twenty-sixth Congress, Globe, pp. 1, 30, 56, 48;
Journal, p. 80.
\5\ Section 31, Revised Statutes, under which the Clerk is now
directed to place on the roll such Members as have credentials showing
them to be regularly elected, is made up of laws passed in 1863 and
1867, dates later than the events above recorded.
Sec. 140
16 before a Speaker was elected. In the election of Speaker the
contestants on neither side voted, the other Members present having
formally voted that the five holding the governor's certificate should
not vote. The Speaker having delivered his address and the Journal of
the previous session having been read, Mr. George C. Dromgoole, of
Virginia, moved that the rules of the last House be adopted as the
rules of the present House. Mr. Lewis Williams, of North Carolina,
moved that this motion lie on the table until the ``Members of the
House shall have been sworn into office, as required by the
Constitution, and by the act of June 1, 1789.'' \1\ This motion was
carried by a vote of 117 yeas to 116 nays, the Speaker voting aye. In
the debate the point was made that under the law of 1789 the oaths
should be administered to Members before business could begin.
The oaths having been administered to all the Members and Delegates,
the Speaker \2\ informed the House \3\ that the five gentlemen from New
Jersey holding the governor's certificate had presented themselves at
the desk and demanded to be sworn into office. The Speaker further
stated that, in consequence of the proceedings which had already taken
place in relation to the rights of these gentlemen to seats in this
House and which were to be found in the Journals, he had declined to
administer to them the oath of office, although his own opinion,
heretofore expressed in another situation that they were entitled to
qualify, was unchanged. He therefore submitted their demand to be sworn
to the House.
Various motions having been submitted and withdrawn during several
days of debate, on December 20 Mr. George Evans, of Maine, finally
offered the following:
Resolved, That the Representatives of the Twenty-sixth Congress of
the United States now present do advise and request the Speaker to
administer the oath required by law to the five gentlemen from the
State of New Jersey who have presented their credentials to the Speaker
and demanded to be sworn.
This resolution was defeated, yeas 112, nays 116.\4\ In the course of
the debate \5\ the case of Mr. Landon (Lanman), in the Senate of
1825,\6\ was referred to; also the case of Claiborne and Gholson in
1837,\7\ in the House. The Speaker, in the course of the debate,\8\
said that in regard to the duty of the Chair in swearing in the New
Jersey Members he would say that he was merely the organ of the House,
and whether it was a House de facto or de jure was not a question for
him to decide; but being its organ, he was bound to carry out the
decisions that it had made and which were staring him in the face.
Mr. John Quincy Adams, during the debate, contended \8\ that it was
not competent for the House to entertain the previous question or any
other motion while the question of the right of the New Jersey Members
to be sworn was pending.
-----------------------------------------------------------------------
\1\ Now section 30, Revised Statutes.
\2\ Robert M. T. Hunter, of Virginia, Speaker.
\3\ Journal, p. 87.
\4\ Journal, p. 92.
\5\ Globe, p. 59.
\6\ This occurred March 4, 1825. See Contested Elections in Congress,
1789 to 1834, p. 871.
\7\ First session Twenty-Fifth Congress, Journal, pp. 3, 4, 71, 91,
106, 110, 117, 137, 139. The election of these men was questioned at
the organization, but they were sworn in.
\8\ Globe, p. 65.
Sec. 141
Mr. Evans's resolution having been defeated, a resolution adopting
rules was agreed to,\1\ and then the organization of the House was
completed by the election of a Clerk and other officers. The cases of
the New Jersey Members were referred to the Committee on Elections, and
ultimately the delegation, headed by Mr. Dickerson, was seated.\2\
141. The fact that a Member-elect has not taken the oath does not
debar him from challenging the right of another Member-elect to be
sworn.--On March 4, 1871,\3\ while the Speaker was administering the
oath to the Members-elect at the organization of the House the name of
Mr. Alfred M. Waddell, of North Carolina, was called.
Mr. Horace Maynard, of Tennessee, upon his authority as a Member of
the House, charged that Mr. Waddell was disqualified, and objected to
the administration of the oath to him.
Mr. Charles A. Eldridge, of Wisconsin, raised the question of order
that Mr. Maynard had not been sworn, and therefore might not make the
objection.
The Speaker \4\ said:
He is a Member of the House. If he were not, the Chair would of
course not recognize him. * * * The gentleman from Tennessee clearly
has the right to raise this question.
142. On a question raised while the oath is being administered to
Members the right to vote is not confined to those already sworn in.--
On March 4, 1869,\5\ at the organization of the House, after a Speaker
had been elected and while the Members-elect were taking the oath, a
question was raised as to the qualifications of Messrs. Boyd Winchester
and John M. Rice, of Kentucky, and a motion was made to refer their
credentials to the Committee on Elections with instructions. On this
motion the previous question was ordered and the vote was about to be
taken when Mr. Charles A. Eldridge, of Wisconsin, raised the question
of order that none but those sworn in had the right to vote.
The Speaker \4\ said:
The Chair overrules the point of order. The uniform usage of the
House is otherwise.
143. It has been held, although not uniformly, that in cases where
the right of a Member-elect to take the oath is challenged the Speaker
may direct the Member to stand aside temporarily.--On March 4, 1869,\6\
at the organization of the House and while the Speaker was
administering the oath to Members-elect, objection was made to the
swearing in of Mr. Patrick Hamill, of Maryland. Mr. Hamill was asked to
step aside until other Members, about whom there was no question,
should be sworn.
Mr. J. Proctor Knott, of Kentucky, made the point of order that the
duty devolved upon the Speaker by law to swear in each Member as he
presented him-
-----------------------------------------------------------------------
\1\ Journal, p. 95.
\2\ Globe, p. 256; Journal, p. 1297.
\3\ First session Forty-second Congress, Globe, p. 6.
\4\ James G. Blaine, of Maine, Speaker.
\5\ First session, Forty-first Congress, Globe, p. 6.
\6\ First session Forty-first Congress, Journal, p. 7; Globe, pp. 6,
13.
Sec. 144
self for that purpose; it was not for the Speaker to decide whether he
could properly take the oath or not. Moreover, the House could not
discharge any of its functions, either legislative or quasi judicial,
which were conferred on it by the Constitution, until it was organized.
Therefore there was no power, either in the Speaker or the House, at
present to exclude a Member-elect from taking the oath.
The Speaker \1\ replied that the Chair had not assumed to exclude any
Member-elect from taking the oath. But the gentleman from Maryland, in
order to relieve the embarrassment of the House, voluntarily withdrew,
as he had a right to do, from those who had presented themselves to
take the oath.
144. On March 4, 1869,\2\ at the organization of the House objection
was made to the taking of the oath by Messrs. Boyd Winchester and John
M. Rice, of Kentucky. When the Speaker \1\ requested them to step aside
until the remaining Members had taken the oath, objection was made. The
Speaker thereupon stated that the question must be met at once, and a
resolution, reciting the allegations against the two gentlemen and
providing that they should not be sworn in until after an investigation
had been made, was presented.
145. On December 5, 1881,\3\ at the organization of the House the
Speaker was administering the oath to Members, and the State of Alabama
had been called. As Mr. Joseph Wheeler presented himself to be sworn
Mr. George W. Jones, of Texas, objected, and asked that Mr. Wheeler
stand aside.
The Speaker having directed Mr. Wheeler to stand aside, Mr. Samuel J.
Randall, of Pennsylvania, raised the point of order that the stepping
aside of a gentleman who had been thus challenged was a voluntary act,
and in support of this point he cited the proceedings in the Forty-
first Congress.
After debate the Speaker \4\ said:
The Chair is inclined to hold that he has the power to designate the
order in which Members may be called and sworn in. Unquestionably the
Chair has no right to decide upon the title of any Member. * * * If any
gentleman is objected to, for mere convenience of proceeding the Chair
will ask the gentleman objected to to stand aside. He having stood
aside, and all others not objected to having been sworn in, the Chair
will at once require the roll to be called for those persons who have
been objected to and will swear them in, unless there shall be some
good reason given upon which the House may act and direct the Chair
otherwise. * * * This is a matter of order, wholly within the control
of the Chair for the convenience of procedure.
A resolution relating to Mr. Wheeler's case having been presented and
laid on the table, the Speaker said:
The Chair will state, there being no motion before the House, in the
absence of instructions he will regard it his duty to proceed to swear
in the Member.
Accordingly the oath was administered to Mr. Wheeler.
146. At the organization of the House on March 4, 1871,\5\ after the
Speaker had been elected and while he was administering the oath to the
Members, the name of Mr. Alfred M. Waddell, of North Carolina, was
called. Mr. Waddell's name was on the roll and he had participated in
the election of Speaker. Mr. Horace
-----------------------------------------------------------------------
\1\ James G. Blaine, of Maine, Speaker.
\2\ First session Forty-first Congress, Journal, p. 7; Globe, p. 6.
\3\ First session Forty-seventh Congress, Record, pp. 9-13.
\4\ J. Warren Keifer, of Ohio, Speaker.
\5\ First session Forty-second Congress, Globe, pp. 7, 11.
Sec. 147
Maynard, of Tennessee, challenged his right to be sworn, on the ground
that he was ineligible under section 3 of article 14 of the
Constitution, since after taking an oath as a civil officer of North
Carolina to support the Constitution of the United States he had
subsequently participated in the war of secession, thereby becoming
disqualified for a seat in Congress.
When this objection was made the Speaker said that he would first
swear in those Members against whom there was no objection.
This was done, and later on the same day the House voted to allow Mr.
Waddell to take the oath, and referred his credentials to the Committee
on Elections.\1\
147. When, at the organization of the House, several Members-elect
are challenged and stand aside, the question is first taken on the
Member-elect first required to stand aside.--On October 15, 1877,\2\ at
the time of the organization of the House, objection was made to the
swearing in of several Members, and they stood aside. On October 16
their cases were considered, and Mr. Eugene Hale, of Maine, called up,
as a question of privilege, the case of James B. Belford, of Colorado.
Mr. Samuel S. Cox, of New York, made the point of order that the
question must first be taken on the case of the Member first required
to stand aside.
The Speaker \3\ sustained the point of order. (Journal, p. 15;
Record, p. 60.)
148. On December 6, 1875,\4\ at the time of the organization of the
House, objection was made to the swearing in of several Members. During
the proceedings Mr. James A. Garfield made the point of order that in
the consideration of these cases the question should be first taken on
the one who was first called on to stand aside.
The Speaker \3\ sustained the point of order.
149. When Members-elect are challenged at the time of taking the oath
motions and debate are in order on the questions involved in the
challenge; and in a few cases other business has intervened by
unanimous consent.--On July 4, 1861,\6\ the Speaker had been elected
and was about to proceed to administer the oath to Members when Mr.
Thaddeus Stevens, of Pennsylvania, moved that such names upon the roll
as should be objected to, when called, be passed over until other
Members should be sworn in. Mr. Schuyler Colfax, of Indiana, proposed
an amendment by inserting the words ``as may be contested'' in place of
``as should be objected to.'' Mr. Colfax explained that he did this
because there was a question as to one or more of the Virginia
delegation, although their seats were not contested.
Mr. Samuel R. Curtis, of Iowa, made the point of order that both the
motion and the amendment were out of order, as the House was still in
an unorganized condition. The first business was to perfect the
organization, and until that was done such motions were not in order.
-----------------------------------------------------------------------
\1\ The Journal indicates that there was at this time no contest for
this seat.
\2\ First session Forty-fifth Congress, Journal, p. 15; Record, p.
60.
\3\ Samuel J. Randall, of Pennsylvania, Speaker.
\4\ First session Forty-fourth Congress, Record, pp. 167-171.
\5\ Michael C. Kerr, of Indiana, Speaker.
\6\ First session Thirty-seventh Congress, Journal, p. 12; Globe, p.
5.
Sec. 150
The Speaker \1\ overruled the point of order.
Mr. Stevens's motion was then amended, and as amended was agreed to.
The names of all those whose seats were not contested having been
sworn in, Mr. Ellihu B. Washburne, of Illinois, moved that the rules of
the last House of Representatives be adopted as the rules of this
House.
The Speaker said:
The first business to be done is the qualification of Members, and
until that business is disposed of the Chair thinks it is not proper to
do any other business.
150. On March 4, 1869,\2\ at the organization of the House, the
Speaker was administering the oath to the Members-elect, when the right
of Mr. Patrick Hamill, of Maryland, to take the oath was challenged.
Debate having begun upon Mr. Hamill's case, Mr. Ebon C. Ingersoll, of
Illinois, made the point of order that debate was not in order on the
question.
The Speaker \3\ held that debate was entirely in order, as the House
was considering a question of the highest privilege.
Mr. John F. Farnsworth, of Illinois, made the point of order that as
the Members had not all been sworn in there was no House to vote on the
question.
The Speaker overruled the point, saying that the present mode of
procedure was that warranted by all the precedents. He also said in
connection with a similar point of order raised later that he
considered the House in its present state competent to enforce the
previous question. Such was the case even in the preliminary stage of
the proceedings for organization on that day before the Clerk had
called the roll for the election of Speaker. The House had certainly
lost none of its powers by the election of Speaker and by its
proceeding so far in the business of organization.
151. By unanimous consent the House has proceeded to legislative
business pending decision as to the right of a Member to be sworn in.--
On October 15, 1877,\4\ at the time of the organization of the House,
objection was made to the swearing in of several Members, and they
stood aside. Before the determination of the right of these challenged
Members-elect to be sworn the organization of the House was completed
and seats were drawn. On October 16 the House considered the cases of
two of those challenged, and then the reading and reference of the
President's message intervened before the disposal of the remaining
cases. It does not appear that unanimous consent was formally asked for
these interruptions.
152. On March 18, 1879,\5\ at the time of the organization of the
House, objection was made to the swearing in of Mr. Noble A. Hull, of
Florida. The consideration of Mr. Hull's case was about to begin when
Mr. William P. Frye, of Maine, requested that it be postponed until the
next day.
-----------------------------------------------------------------------
\1\ Galusha A. Grow, of Pennsylvania, Speaker.
\2\ First session Forty-first Congress, Journal, p. 7; Globe, p. 6.
\3\ James G. Blaine, of Maine, Speaker.
\4\ First session Forty-fifth Congress, Journal, p. 20; Record, p.
69.
\5\ First session Forty-sixth Congress, Record, pp. 6, 27.
Sec. 153
Mr. Fernando Wood, of New York, objected.
The consideration of the case thereupon proceeded, but later, by
unanimous consent, the matter was postponed until the next day.\1\
153. Questions as to the credentials and qualifications of Members-
elect may, by general consent, be deferred until after the election of
Speaker and swearing in of Members.--On July 4, 1861,\2\ at the time of
the organization of the House, while the Clerk was calling the names of
the Members-elect by States, several questions were raised as to the
credentials and qualifications of Members-elect, but by general consent
the determination of these matters was waived until after the election
of a Speaker and the administration of the oath to Members.
154. In 1861 it was held that the House might direct contested names
on the roll to be passed over until the other Members-elect were sworn
in.--On July 4, 1861,\3\ at the organization of the House, after the
Speaker had taken the chair, and before administering the oath to such
of the Members as were present, it was voted, on motion made by Mr.
Thaddeus Stevens, of Pennsylvania, as amended on motion of Mr. Schuyler
Colfax, of Indiana, that such names on the roll as might be contested
should, when called, be passed over until the other Members were sworn
in.
The Speaker \4\ overruled a question of order that the motion was not
in order prior to the completion of the organization.
155. A Member-elect challenged as he is about to take the oath is not
thereby deprived of any right, and the determination of his case has
priority of those of persons claiming seats but not on the Clerk's
roll.--On October 15, 1877,\5\ at the time of the organization of the
House, while the oath was being administered to the Members-elect,
several Members-elect were challenged and required to step aside.
On October 16, after the organization of the House had been
perfected, the cases of these challenged Members were taken up.
Mr. Eugene Hale, of Maine, proposed to call up the case of the
Representative from Colorado, from which State no name had been placed
on the roll.
Mr. Samuel S. Cox, of New York, raised the question of order that
those first challenged should be first considered.
After debate, the Speaker \6\ said:
In the opinion of the Chair, the proposition that before taking up
the case of any gentleman whose name was not upon the roll at all the
House shall consider the qualifications of Members upon the roll who
were asked to step aside is reasonable and right and in accord with the
practice. Any other ruling would work great hardship. These gentlemen
were placed upon the roll by the Clerk under the law, and upon the
objection of an individual Member, which in its nature is arbitrary and
might be factious, they were prevented from being sworn in. The Chair
stated yesterday that such a single objection did not deprive those
gentlemen of any right which they possessed, and if the occasion had
presented
-----------------------------------------------------------------------
\1\ See also the Roberts case in the Fifty-sixth Congress. (See. 474
of this work.)
\2\ First session Thirty-seventh Congress, Globe, p. 3.
\3\ First session Thirty-seventh Congress, Journal, p. 12; Globe, p.
5.
\4\ Galusha, A. Grow, of Pennsylvania, Speaker.
\5\ First session Forty-fifth Congress, Record, pp. 59, 60.
\6\ Samuel J. Randall, of Pennsylvania, Speaker.
Sec. 156
itself these gentlemen, in the opinion of the Chair, would have had the
right to vote, as they did in fact vote, upon the election of Speaker,
in the same manner as though they had been sworn in. For these reasons
the Chair sustains the point of order of the gentleman from New York.
156. Members-elect challenged for alleged disqualifications have in
several cases been sworn in at once, the question of their
qualifications in some cases being referred to a committee for
examination.--On July 4, 1861,\1\ at the organization of the House, the
Speaker \2\ was administering the oath to the Members-elect. When the
State of Virginia was called, Mr. Henry C. Burnett, of Kentucky,
offered this resolution:
Resolved, That the question of the right of Charles H. Upton, William
G. Brown, R. V. Whaley, John S. Carlile, and E. H. Pendleton, to seats
upon this floor, be referred to the Committee on Elections, when
formed, and that they report to this House thereon.
It appears from the debate that there was a question as to whether or
not Mr. Upton was a citizen of Virginia, it being alleged that he was a
citizen of Ohio and that he had voted there at the last election.
Both Mr. Upton and his associates were among those whose names were
on the roll as made up by the Clerk and they had voted in the election
of Speaker.
On motion of Mr. John A. McClernand, of Illinois, the resolution was
laid on the table, and the Virginia Members took the oath.
157. On March 4, 1869,\3\ the Speaker having been elected and having
addressed the House, the swearing in of the Members was proceeding, and
the name of Mr. Patrick Hamill, of Maryland, had been called, when Mr.
Benjamin F. Butler, of Massachusetts, objected to Mr. Hamill on the
ground that he had been disloyal during the war. Mr. Butler proposed a
resolution that Mr. Hamill be not allowed to take the oath until his
case should be investigated by the Committee on Elections.\4\
On March 5, when the case was again taken up, Mr. Butler stated that
he had examined the case carefully and was of the opinion that the
prima facie case, as made out by the certificate of the governor, ought
at the present time to prevail, and that Mr. Hamill ought to be
admitted to his seat.
A resolution was therefore presented and agreed to that Mr. Hamill be
now sworn in and that the papers submitted in this case be sent to the
Committee on Elections when appointed. Mr. Hamill therefore took the
oath. Mr. Hamill had previously participated in the proceedings of
organization, having answered to his name on the vote for Speaker.
158. On March 4, 1869,\5\ at the organization of the House, objection
was made to administering the oath to Messrs. Boyd Winchester and John
M. Rice, of Kentucky, who were on the roll and had voted for Speaker.
It was alleged that they were disloyal during the war. A resolution was
presented reciting the allegations against them and providing that the
oath should not be administered to them.
-----------------------------------------------------------------------
\1\ First session Thirty-seventh Congress, Journal, p. 12; Globe, pp.
6, 7, 13.
\2\ Galusha A. Grow, of Pennsylvania, Speaker.
\3\ First session Forty-first Congress, Journal, pp. 4, 5, 10; Globe,
pp. 6, 10, 13.
\4\ The Journal indicates that there was no contest for Mr. Hamill's
seat (First session Forty-first Congress, p. 291). It does not appear
that Mr. Hamill was afterwards disturbed in the possession of his seat.
\5\ First session Forty-first Congress, Journal, pp. 4, 6, 10; Globe,
pp. 10, 13.
Sec. 159
Explanations of the charges being made, the resolution was withdrawn,
and on March 5 the oath was administered to them by order of the
House.\1\
159. On December 3, 1889,\2\ during the organization of the House, as
the Speaker was administering the oath to the Members, and as the State
of Kansas was called, Mr. William M. Springer, of Illinois, asked that
Mr. S.R. Peters, of Kansas, stand aside.
The Speaker \3\ directed Mr. Peters to stand aside. Mr. Springer then
presented a memorial from the governor and State officers of Kansas
reciting that Mr. Peters, who had been elected judge for the four years
ending January, 1884, was disqualified by the terms of the constitution
of that State from holding any other office under the State or United
States, and proposed a resolution referring the case to the Committee
on Elections for examination as to whether Mr. Peters was entitled to
the seat, and also to examine the claims of Mr. S. N. Wood, who
contested the seat.
The Speaker suggested that the swearing in of a Member being a matter
of the very highest privilege, the oath should be first administered,
and then the resolution might be offered.
This was accordingly done. Mr. Peters's qualifications were
afterwards examined and he was declared entitled to the seat.
160. Under exceptional circumstances the House admitted to a seat a
Member-elect who failed to present himself until near the expiration of
the Congress.--On February 25, 1868 \4\ the House voted to admit to his
seat Mr. George W. Bridges, of Tennessee, who had been elected at the
regular Congressional election in his State in 1861, but who had been
unable to appear in his place when Congress met in December of that
year because he had been captured by the Confederates and detained a
prisoner. As soon as he could escape he made his way, arriving at
Washington so as to appear in the House February 25, a few days before
final adjournment.
161. Instance wherein a Member-elect appeared and took the oath
several months after the organization of the House.--On April 19,
1906,\5\ Mr. Malcolm R. Patterson, of Tennessee, appeared and took the
oath. He had been regularly elected in November, 1904, as a Member of
this Congress, but had not appeared at the organization of the House on
the first Monday of December, 1905, nor thereafter until this date. No
question was raised as to his right to qualify.
162. Although the House has emphasized the impropriety of swearing in
a Member without a certificate, it has sometimes been done by unanimous
consent.--On April 20, 1871,\6\ Mr. Omar D. Conger, of Michigan,
proposed a resolution providing that Wilder D. Foster, Member-elect
from the Fourth Congressional district of Michigan, be sworn in. Mr.
Conger explained
-----------------------------------------------------------------------
\1\ The Journal (first session Forty-first Congress, p. 291)
indicates that there was a contest for Mr. Rice's seat, but not for Mr.
Winchester's.
\2\ First session Forty-eighth Congress, Record, p. 6. 3 John G.
Carlisle, of Kentucky, Speaker.
\4\ Third session Thirty-seventh Congress, Journal, pp. 489, 490;
Globe, pp. 1295, 1296.
\5\ First session Fifty-ninth Congress, Record, p. 5523.
\6\ First session Forty-second Congress, Globe, p. 833.
Sec. 163
that the official certificate of Mr. Foster had not been received, but
it was apparent from telegraphic reports of the canvass that he had
been elected by a majority of several thousand.
A question arose, and while it was generally assumed that by
unanimous consent Mr. Foster might properly be admitted to take the
oath, yet it was objected that admission should be as a matter of
right, and that it was improper to admit without a certificate of some
kind. Because of the objection Mr. Conger withdrew the resolution.
163. On December 1, 1879,\1\ Mr. Waldo Hutchins, of New York, was
sworn in without the presentation of the regular certificate required
by law, which had not been issued because the State canvassers would
not meet under the law for several days. But the county canvassers had
shown his election unmistakably, and there was no contest or question.
Therefore, by unanimous consent, the House allowed Mr. Hutchins to be
sworn in, although distrust of the precedent was expressed.
164. On December 6, 1886 \2\ at the beginning of the second session
Mr. Abram S. Hewitt, of New York, as a question of privilege, presented
a letter from the secretary of state of New York stating that the
returns officially received showed the election of Mr. Samuel S. Cox to
fill the vacancy caused by the resignation of Mr. Joseph Pulitzer, of
the Ninth Congressional district of New York, and that the proper
certificate of election would be issued as soon as the board of
canvassers should meet.
There being no objection, the Speaker administered the oath to Mr.
Cox.
On the same day and under similar circumstances the oath was
administered to Mr. Henry Bacon, of New York.
165. On December 1, 1890,\3\ after several Members presenting regular
certificates of election had been sworn in, the request was made that
Mr. John S. Pindar, of the Twenty-fourth district of New York, be sworn
in. The official certificate from the secretary of state of New York
had not arrived, but the certificate of the county canvassers showing
the result of the election was presented at the Clerk's desk. By
unanimous consent the oath was administered to Mr. Pindar.
The request was then made that Mr. E. R. Hayes, of Iowa, be sworn in.
It was stated by a Member of the Iowa delegation, Mr. David B.
Henderson, that there was no question of Mr. Hayes's election, but by
some error the certificate had not been transmitted. He presented the
letter in which the certificate was supposed to have been transmitted,
but in which by mistake another paper had been inclosed.
Pending the request for unanimous consent, it was suggested by Mr.
Charles F. Crisp, of Georgia, ``that the House sometimes accepts, in
lieu of a formal certificate (as in the case of the gentleman from New
York, Mr. Pindar, to which consent has just been given), the
certificate of the local boards of county canvassers. But so far as I
know a Member presenting himself to be sworn in must have some kind of
-----------------------------------------------------------------------
\1\ Second session Forty-sixth Congress, Journal, p. 8; Record, p.
10.
\2\ Second session Forty-ninth Congress, Journal, p. 9; Record, p.
14.
\3\ Second session Fifty-first Congress, Journal, p. 5; Record, p.
11. Thom B. Reed, of Maine, Speaker.
Sec. 166
a certificate or some authority from some source having charge of the
election to warrant the granting of the request.'' No objection was
made, however, and Mr. Hayes was sworn in.
In a similar manner the oath was administered to Mr. Robert H.
Whitelaw, of the Fourteenth district of Missouri, whose certificate had
not arrived. In this case a semiofficial statement from the secretary
of state of Missouri, giving the figures of the election, was presented
by a colleague.
On May 5, 1896,\1\ at the request of Mr. Charles Daniels, of New
York, and by unanimous consent, the oath was administered to Mr.
Rudolph Kleberg, of Texas, who presented an informal statement to the
Speaker, signed by the governor, secretary of state, and attorney-
general of Texas, who stated ``upon general and reliable unofficial
information'' that Mr. Kleberg had been elected.
On December 19, 1896,\2\ on motion of Mr. Henry G. Turner, of
Georgia, and by unanimous consent, the oath was administered to Mr.
Charles R. Crisp, of Georgia, who presented an informal letter from the
governor of Georgia to the Speaker, informing him that there was only
one candidate at the election and that the commission would be
forwarded as soon as the returns were received.\3\
166. On March 2, 1894,\4\ Mr. William S. Holman, of Indiana,
announced that Mr. Galusha A. Grow, of Pennsylvania, had been elected a
Member of the House from Pennsylvania, but that his credentials had not
yet arrived. After remarks on the public career of Mr. Grow in earlier
years in the House, Mr. Holman asked unanimous consent that the oath be
administered to him. There being no objection, it was so ordered, and
Mr. Grow took the oath.
167. On January 15, 1902,\5\ the House, by unanimous consent,
authorized the Speaker to administer the oath to Mr. Montague Lessler,
of New York, on the following statement of fact made by Mr. Lucius N.
Littauer, of New York:
Mr. Speaker, I ask unanimous consent that Mr. Montague Lessler,
elected to this House at a special election held in the Seventh
district of New York to fill a vacancy caused by the resignation of Mr.
Muller, be sworn in. The certificate of the secretary of state of New
York is not yet at hand, but there is no contest over the result of
this election. The vote has been canvassed by the board of county
canvassers, and Mr. Lessler is now here ready to be sworn in.
168. On December 3. 1906,\6\ at the beginning of the second session
of the Congress, after the roll of the Members had been called by
States, and when several Members elected to fill vacancies had
presented credentials and taken the oath, Mr. James Hay, of Virginia,
said:
Mr. Speaker, I ask unanimous consent that Mr. E. W. Saunders, a
Member elect from the Fifth Virginia district, be sworn in. His
credentials have not arrived, but there is no question of his election,
and I have been in communication with the secretary of state of
Virginia, who tells me that the canvass of the votes has been made and
that Mr. Saunders has been declared duly elected.
-----------------------------------------------------------------------
\1\ First session Fifty-fourth Congress, Record, p. 4846.
\2\ Second session Fifty-fourth Congress, Record, p. 301. Thomas B.
Reed, of Maine, Speaker.
\3\ It is a safe usage to permit the oath to be administered under
such circumstances only by unanimous consent; but manifestly in a case
of such high privilege the House might act by majority vote.
\4\ Second session Fifty-third Congress, Record, p. 2533.
\5\ First session Fifty-seventh Congress, Journal, p. 223; Record, p.
692.
\6\ Second session Fifty-ninth Congress, Record, p. 13.
Sec. 169
On this statement the House gave consent, and the oath was
administered to Mr. Saunders. Under similar conditions the oath was
administered to Mr. Daniel J. Riordan, of New York.
169. Instance wherein the House authorized the Speaker to administer
the oath to Members away from the House.--On January 6, 1890,\1\ Mr.
John G. Carlisle, of Kentucky, having announced that there were three
Members of the House who by reason of illness had been unable to attend
and take the oath of office, offered the following resolutions, which
were adopted:
Whereas Samuel J. Randall, a Representative for the State of
Pennsylvania from the Third district thereof, David Wilber, a
representative for the State of New York from the Twenty-fourth
district thereof, and W. C. Whitthorne, a Representative for the State
of Tennessee from the Seventh district thereof, have been unable from
sickness to appear in person to be sworn as Members of the House, and
there being no contest or question as to their election: Therefore,
Resolved, That the Speaker be authorized to administer the oath of
office to said Samuel J. Randall at his residence in Washington, D. C.;
and that the said David Wilber and W. C. Whitthorne be authorized to
take the oath of office before an officer authorized by law to
administer oaths; and that said oaths, when administered as herein
authorized, shall be accepted and received by the House as the oaths of
office, respectively, of Samuel J. Randall, David Wilber, and W. C.
Whitthorne.
Resolved, That the oaths of office administered to the said David
Wilber and W. C. Whitthorne shall be certified to the House of
Representatives by the officers administering the same, authenticated
by their official signatures and seals.
On the following day the Speaker announced:
The Chair desires to announce that in compliance with the resolution
yesterday adopted the Speaker administered the oath of office at his
residence to Hon. Samuel J. Randall, a Representative from the State of
Pennsylvania, and the Clerk will make a record in the Journal.
On January 15 \2\ the Speaker laid before the House the oaths of
Messrs. Wilber and Whitthorne, and they were ordered to be filed in the
office of the Clerk.
170. By authority of the House the oath may be administered to a
Member away from the House and by another than the Speaker.
As to the competency of a Speaker pro tempore to administer the oath
to Members.
On January 22, 1887, Mr. Nathaniel J. Hammond, of Georgia, from the
Committee on the Judiciary, submitted a report \3\ on the case of
Representative D. Wyatt Aiken, of South Carolina, who, by reason of
illness, seemed likely not to be able to appear in the House during the
Congress, and to whom it was proposed to administer the oath away from
the House by a judicial officer of his State. The committee quoted the
third section of Article VI of the Constitution, which requires that
the Representatives ``shall be bound by oath or affirmation to support
the Constitution,'' and section 30, Revised Statutes.\4\
The committee considered two questions arising under this statute:
(1) Whether any officer but the Speaker can administer that oath, and
(2) whether it can be administered until the Member is ``present'' or
``appears'' in the House, or elsewhere than in the House.
-----------------------------------------------------------------------
\1\ First session Fifty-first Congress, Journal, pp. 89, 103; Record,
pp. 399, 432.
\2\ Journal, p. 124.
\3\ House Report No. 3745, second session Forty-ninth Congress.
(Record, p. 1157.)
\4\ See section 14, this volume.
Sec. 170
The committee say that a construction which might require that none
but the Speaker can swear in a Member might prove seriously
inconvenient in case of his absence. It is a rule of the House only
which authorizes him temporarily to appoint a Speaker pro tempore to
the chair. Such a construction would give to the Speaker the dangerous
power to refuse to administer the oath and thereby exclude Members from
the House. No such construction should be allowed. The committee here
quote an English precedent where, out of abundant caution, such act by
a deputy speaker was ratified by action of Parliament subsequently.
In regard to the second inquiry the committee cite the case of
William Rufus King, elected Vice-President in 1855, and who, being
detained in Habana, was allowed by special act to take the oath there.
This was a precedent merely for swearing in a Member away from the
House. The statute was needed to authorize the officer abroad to
administer the oath.
The committee say that no provision has been made by statute for
administering this oath by any but the Speaker, nor elsewhere than in
the House. As to absent Members it is casus omissus. It does not
require the oath to make one a Representative. Mr. Aiken was already on
committees and had been granted leave of absence. The statutes \1\
require that the Speaker certify the salaries and amounts of Members
and approve the employment of the reporters. Yet these things may be
done by a ``Deputy Speaker'' named by him, with the approval of the
House. That Deputy Speaker \2\ swears in Members also, not by statute,
but only by our rule, which authorizes him to ``perform the duties of
the Chair.''
The Constitution provides that when sitting to try impeachments
Senators ``shall be under oath or affirmation.'' No statute prescribing
the form and method of taking the oath, the Senate has determined it
itself. The question of how the oath of office in each House shall be
taken is so near akin to the ``election returns and qualifications of
its own Members'' and so like one of the ``rules of its own
proceeding,'' which constitutionally belong to ``each House '' to
``judge'' and ``determine'' for itself, that in the opinion of the
committee no statute was necessary. The committee concluded by
recommending the adoption of a resolution as follows:
Whereas D. Wyatt Aiken, Representative for the State of South
Carolina from the Third district thereof, has been and in all
probability will remain until the end of this Congress unable from
sickness to appear in person to be sworn as a Member of this House, but
has sworn to and subscribed the oath of office before an officer
authorized by law to administer oaths, and the said oath of office has
been presented in his behalf to the House,\3\ and there being no
contest or question as to his election: Therefore,
Resolved, That the said oath be accepted and received by the House as
the oath of office of the said D. Wyatt Aiken as a Member of this
House.
This resolution, after debate, was adopted by the House January 29,
1887.\4\
-----------------------------------------------------------------------
\1\ Sections 47 and 54, Revised Statutes.
\2\ On June 15, 1898 (second session Fifty-fifth Congress), Mr. John
Dalzell, of Pennsylvania, by designation of the Speaker, in writing,
acting as Speaker pro tempore, administered the oath to Mr. Greene, of
Massachusetts.
\3\ The oath had been presented in the House on January 10 as a
question of privilege (Journal, p. 200; Record, p. 493), the case of
Mr. Haskell, of Kansas, being cited as a precedent.
\4\ Second session Forty-ninth Congress, Record, pp. 1156-1158.
Sec. 171
171. An adjournment taking place after the election of a Speaker, but
before the Members had taken the oath, the Journal was read on the next
day, but was not approved until the oath had been administered.
It has been held that the administration of the oath to a Member
takes precedence of a motion to amend the Journal.
On December 22, 1849,\1\ after many ballotings, Mr. Howell Cobb, of
Georgia, was elected Speaker. After the oath had been administered to
him the House adjourned.
On the next legislative day, December 24, the Speaker called the
House to order, and the Journal of the preceding legislative day was
read.
Mr. David S. Kaufman, of Texas, claimed the floor on a privileged
question--a motion to amend the Journal.
The Speaker held that no question was in order until the Members of
the House had been sworn in. A motion to amend the Journal or any other
privileged question would then be in order.
The Speaker then proceeded to administer the oath to the Members.
172. Members have been sworn in before the reading of the Journal.--
From the Journal of December 14, 1840,\2\ it seems to have been the
usage at that time to swear in new Members before the reading of the
Journal.
173. Instance wherein, at the organization of the House, the oath was
administered to a Member-elect during the call of the roll on a motion
to agree to rules.--On December 4, 1905,\3\ at the organization of the
House, the yeas and nays were ordered on a motion for the previous
question on a resolution agreeing to rules. After the roll had been
called once, Mr. Albert S. Burleson, of Texas, presented himself and
took the oath. The roll call was then completed, Mr. Burleson voting.
174. Members have been sworn in when a roll call had just disclosed
the absence of a quorum.--On March 29, 1897 \4\ on a motion that the
Journal be approved, the SpeakerSec. \5\ announced the result of the
roll call--yeas 164, nays 2, present 2, a total of 168; not a quorum.
The Speaker then announced that under the rule \6\ the doors of the
House would be closed preparatory to the can of the House.
At this point Mr. James D. Richardson, of Tennessee, announced that
Messrs. Rudolph Kleberg, of Texas, and William A. Jones, of Virginia,
were present, ready to take the oath, and asked that it be administered
to them.
The Speaker said that a question arose as to whether or not, the body
not being constituted to do business and the roll call having been
ordered by the rule of the House, the proceedings might be interrupted.
Therefore he advised that unanimous consent should be obtained.
This having been done, the oath was administered to the two Members.
-----------------------------------------------------------------------
\1\ First session Thirty-first Congress, Globe, p. 67.
\2\ Second session Twenty-sixth Congress, Journal, p. 31.
\3\ First session Fifty-ninth Congress, Record, p. 43.
\4\ First session Fifty-fifth Congress, Record, p. 428.
\5\ Thomas B. Reed, of Maine, Speaker.
\6\ Section 4 of Rule XV. (See see. 3041 of this work.)
Sec. 175
175. At the beginning of a second session of Congress unsworn
Members-elect were taken into account in ascertaining the presence of a
quorum, but in the absence of the Speaker they were not sworn until the
next day.--On December 6, 1830,\1\ at the beginning of the second
session of the Congress, there appeared, besides those who answered the
roll, several new Members. These Members-elect, as appears in the
Journal, were taken into account in ascertaining the presence of a
quorum, but the Speaker being absent, the oath was not administered to
them.
On December 7, the Speaker being in attendance, the oath was
administered to these and other new Members immediately after the
reading of the Journal.
176. Instance at the beginning of a second session wherein the oath
was administered to a Member-elect before the ascertainment of a
quorum.
By unanimous consent the oath may be administered to Members-elect
whose regular certificates have not arrived.
On December 7, 1903,\2\ at the beginning of the second session of the
Congress, the Speaker called the House to order, and the Chaplain
offered prayer.
Thereupon Mr. John H. Stephens, of Texas, announced that Mr. J. M.
Pinckney, of Texas, a Member-elect, was present and desired to be
sworn. The Speaker thereupon laid before the House the following
telegram:
Austin Tex., December 6, 1903.
Hon. Joseph G. Cannon,
Speaker House of Representatives, Washington, D.C.:
I am reliably informed that at a special election held in the Eighth
Congressional district of Texas on the 17th of November last Hon. J. M.
Pinckney was elected as Member of Congress to succeed Ron. Thomas Ball,
resigned. I am also advised that Pinckney's election is conceded by his
opponents. Under our laws, the official returns can not be opened and
counted until forty days after the election.
S. W. T. Lanham, Governor of. Texas.
Thereupon, by the unanimous consent of the House, the oath was
administered to Mr. Pinckney.
Then the Speaker directed the call of the roll by States to ascertain
the presence of a quorum.
177. On December 31, 1834,\3\ as soon as the roll of Members had been
called by States, several new Members appeared and were qualified and
took their seats. Then the Journal announces the presence of a quorum.
178. On December 7, 1840,\4\ the first day of the second session of
the Congress, the Speaker called the House to order, and the Clerk
called the roll by States. Then six new Members appeared and took the
oath and their seats; but even with these there was no quorum present,
and so the House adjourned.
179. In the absence of the Speaker a Member-elect has produced his
credentials and taken his seat, but was not sworn until the oath could
be administered by the Speaker.
-----------------------------------------------------------------------
\1\ Second session, Twenty-first Congress, Journal, p. 7; Debates, p.
350.
\2\ Second session Fifty-eighth Congress, Record, pp. 15, 16.
\3\ Second session Twenty-third Congress, Journal, p. 7; Debates, p.
751.
\4\ Second session Twenty-sixth Congress, Journal, p. 5; Globe, p. 1.
Sec. 180
In the earlier years of the House the absence of the Speaker caused
adjournment and the postponement of the orders of the day.
On December 1, 1797,\1\ the Speaker being absent, a new Member,
Joseph Heister, returned to serve in the House as a Member from the
State of Pennsylvania, in the room of George Egge, who had resigned his
seat, ``appeared, produced his credentials, and took his seat in the
House.''
The Speaker being indisposed (the Clerk so informed the House), the
orders of the day were postponed and the House adjourned.
On the next legislative day, December 4, the oath was administered to
Mr. Heister by the Speaker.
On February 22, 1798,\2\ the Speaker being absent, the orders of the
day were postponed and the House adjourned.
180. It was held in 1881 that the administration of the oath to
Delegates was of higher privilege than the adoption of rules.--On
December 5, 1881,\3\ after the Members-elect had been sworn in, and
after the officers of the House had been elected, but before the oath
had been administered to the Delegates, Mr. Dudley C. Haskell, of
Kansas, presented resolutions providing for the adoption of rules.
The House having adjourned pending action on these resolutions, Mr.
Haskell, on December 6, called them up for consideration.
Mr. Samuel J. Randall, of Pennsylvania, made the point of order that
under the law other business of higher privilege, viz, the swearing in
of the Delegates, as provided by section 30 of the Revised Statutes,
which provided for the administration of the oath, as follows:
At the first session of Congress after every general election of
Representatives, the oath of office shall be administered by any Member
of the House of Representatives to the Speaker, and by the Speaker to
all the Members and Delegates present, and to the Clerk, previous to
entering on any other business, and to the Members and Delegates who
afterward appear, previous to their taking their seats.
The Speaker \4\ sustained the point of order, and directed the Clerk
to call the Delegates to be sworn.
181. The presiding officer of the Senate being present, the oath of
office was administered to Senators-elect, although no quorum was
present.--On December 6, 1804,\5\ the second day of the second session
of the Congress, a quorum did not appear, but the President of the
Senate administered the oath to Messrs. William B. Giles and Andrew
Moore, of Virginia, who appeared with credentials showing their
appointment by the governor of the State to fill vacancies.
182. On December 6, 1802,\6\ in the absence of the Vice-President, a
Member-elect appearing in the Senate with credentials, but there being
no quorum, took his seat, but was not sworn until December 14, after a
quorum had appeared and a President pro tempore had been elected.
-----------------------------------------------------------------------
\1\ Second session Fifth Congress, Journal, P. 95 (Gales & Seaton
ed.); Annals, p. 670.
\2\ Journal, p. 191; Annals, p. 1062.
\3\ First session Forty-seventh Congress, Journal, pp. 16, 18;
Record, p. 33.
\4\ J. Warren Keifer, of Ohio, Speaker.
\5\ Second session Eighth Congress, Senate Journal, p. 411. Aaron
Burr, Vice-President and President of the Senate.
\6\ Second session Seventh Congress, Senate Journal, pp. 241, 243.
Sec. 183
183. Discussion of the status of a Member-elect who has not taken the
oath, with a conclusion that it is distinguished from that of a Member
who has qualified.--On June 13, 1864, Mr. Henry L. Dawes, of
Massachusetts, from the Committee on Elections, made a report \1\
relating to the rights of Messrs. Robert C. Schenck, of Ohio, and Frank
P. Blair, Jr., of Missouri, to seats in the House. In the course of
this report the following discussion was given of the status of a
Member-elect:
No one can be a ``Member'' against his will. He may be elected
without his consent or knowledge, for he may be in a foreign land; but
to become a ``Member'' he must not only be elected but he must take the
oath of office. The Constitution says: ``Each House shall be the judge
of the elections, returns, and qualifications of its own Members''--
that is, of those who have qualified and taken their seats. Again: ``A
majority of each shall constitute a quorum, but a smaller number may
adjourn from day to day, and may be authorized to compel the attendance
of absent Members.'' But the attendance of a Representative-elect was
never yet compelled. And, again: ``Each House may determine the rules
of its proceedings, punish its Members for disorderly behavior, and,
with the concurrence of two-thirds, expel a Member.'' The committee are
not aware of any attempt to punish a Representative-elect, and of but
one instance of an attempt to expel one. A resolution was adopted by
the last House, under the previous question, to expel a person who was
a Representative-elect, but had never signified his acceptance of the
office or qualified, or even appeared in Washington for the purpose of
taking his seat. But when the Constitution uses the word
``Representative,'' it is in this connection: ``The times, places, and
manner of holding elections of Senators and Representatives shall be,''
etc. ``No person shall be a Representative who shall not have attained
to the age of 25 years.'' In the clause now under consideration the
language is: ``No person holding any office under the United States
shall be a Member of either House during his continuance in office.''
No one doubts that the object of the Constitutional inhibition was to
guard the House against Executive influence. This object is attained so
far as it can be by this provision, if the inhibition attaches the
moment the Member enters upon the discharge of his duties as such, and
nothing is gained by an earlier application of it.
184. Discussion of the status of a Member-elect in relation to the
law prohibiting the holding of two offices of certain salaries, with
the conclusion that it is distinguished from the status of the Member
who has qualified.--On July 19, 1866 \2\ Mr. Samuel Shellabarger, of
Ohio, made a report from the select committee appointed April 30, 1866,
to investigate certain statements and charges relating to Hon. Roscoe
Conkling and Provost-Marshal-General Fry. In April, 1865, Mr. Conkling
had accepted an appointment from the War Department to investigate
frauds in the office of the provost-marshal for the western district of
New York. He was at the same time a Member-elect of the House of
Representatives. The special committee consisted of Messrs.
Shellabarger, of, Ohio, William Windom, of Minnesota, B. M. Boyer, of
Pennsylvania, Burton C. Cook, of Illinois, and Samuel L. Warner, of
Connecticut, and they made an unanimous report, in which they found,
among other things, that Mr. Conkling had not violated the law or the
Constitution by accepting the appointment.
The act of 1852 \3\ had provided against the holding of two offices
of certain salaries under the United States; and in the course of their
inquiry the committee considered the status of the Member-elect, as
follows:
-----------------------------------------------------------------------
\1\ House Report No. 110, First session Thirty-eighth Congress, pp.
8, 9.
\2\ First session Thirty-ninth Congress, Globe, pp. 3935-3942.
\3\ Now section 1763, Revised Statutes.
Sec. 184
The first of these inquiries is, in the judgment of the committee,
answered, so far as is necessary in deciding upon the effect of the act
of 1852, by the cases of Hammond, of Earl, of Mumford, of Schenck,\1\
and others, which we have already cited. These cases, as we have seen,
all determine that, prior to the time when the Constitution requires
the Member-elect to commence the duties of his legislative office, and
before he has assumed these duties and taken the oath of office, he may
receive compensation for discharging the duties of another office. As
we have already said, these cases do not determine that he may also be
compensated as a Member of Congress for the same time for which he was
compensated in the other office. But they do determine that being a
Member-elect of Congress does not make him an ``officer'' in such sense
as to bring him within the prohibition of the act of 1852. This
question, in substance, received the careful attention of the House in
the Thirty-eighth Congress upon an able report of one of its
committees.\2\ The committee and House came to what your committee deem
a just conclusion when it determined that one merely elected to
Congress, but who had not entered upon his duties nor been qualified,
was not a Member of this House--that is, did not hold an office so as
to prevent him from continuing to hold another office and receive
compensation therefor. The committee, in concluding their argument
showing that one merely elected to Congress was not a Member of the
House and not, as such, amenable to its jurisdiction, says: ``The
committee are not aware of any attempt to punish a Representative-
elect, and of but one instance of an attempt to expel one. A resolution
was adopted by the last House, under the previous question, to expel a
person who was a Representative-elect, but had never signified his
acceptance of the office, nor qualified, nor even appeared in
Washington for the purpose of taking his seat.''
In that case \2\ the House determined, in effect, that the act of
1852 did not prohibit General Schenck while a member-elect of Congress
from receiving the pay of another office--to wit, that of Major-general
of volunteers.
This is the last case in which the question came before the House.
But the same question received in the Fifteenth Congress, in the case
of Hammond v. Herrick (Clark and Hall, Contested Elections, pp. 293,
294), a still more elaborate and exhaustive consideration. In the
report in that case (which also received the sanction of the House)
this doctrine was explicitly stated, and was affirmed after a thorough
review of the English and American cases touching it. The case held the
rule which was stated by the committee in these words: ``Neither do
election and return constitute membership. * * * Our rule in this
particular is different from that of the House of Commons. It is also
better, for it makes our theory conform to what is fact in both
countries--that the act of becoming in reality a Member of the House
depends wholly upon the person elected and returned. Election does not
of itself constitute membership, although the period may have arrived
at which the Congressional term commences.''
This House has again and again determined that men elected to it who
do not appear in the body and assume the constitutional oath of office
are not to be reckoned as Members of the House in determining the
number required to make a majority or quorum of the body.
The committee in coming to this conclusion have not overlooked the
fact that Members-elect, but not qualified, are by the laws accorded
certain privileges and salary. The effect of this right to enjoy these
privileges before becoming qualified as a member of the legislative
body has received the fullest attention both in this House and in the
English Parliament. The result attained is that these special
privileges are not necessarily indicia of actual official authority or
station, and may by law as well be attached to one's person before and
after he is an officer as during his official tenure. The
Representatives after the expiration of their terms, the President of
the United States after such expiration, and the widows of certain ex-
Presidents, all have the franking privilege, and these are not then
officers of the Government in any sense. The assumption of office in
this country, as well as its relinquishment, is voluntary, and one
elected to Congress is at perfect liberty to refuse to assume the
office. His exercise of the franking privilege with the knowledge that
he never would enter upon the duties of the office would be an act of
bad faith toward his Government; but that would not render him a Member
of Congress, nor would the exercise prevent him, should failure of
health or other cause render it improper to enter upon his office, from
rightly refusing ever to take the office.
Other and perhaps more conclusive considerations bearing upon this
important inquiry might be
-----------------------------------------------------------------------
\1\ Report No. 110, first session Thirty-eighth Congress.
\2\ House Report, No. 110, first session Thirty-eighth Congress.
Sec. 185
given, but it is not deemed best to pursue it further. The committee
are entirely satisfied that the law of this House is fully and rightly
settled as to this point, and that he is not a Member of Congress, nor
one who ``holds any office under the Government of the United States''
who has only been elected to this House, but who has never taken any
oath of office nor entered upon the duties of that position.
185. In 1901, in a divided report, the Judiciary Committee discussed
the status of the Member-elect, the major opinion being that he was as
much an officer of the Government before taking the oath as
afterwards.--On February 4, 1901,\1\ Mr. George W. Ray, of New York,
from the Judiciary Committee, submitted a report on a question relating
to the salary of Hon. William Richardson, who had been elected to
represent the district formerly represented by Hon. Joseph Wheeler. The
discussion of this question involved an examination of the status of a
Member-elect.
Does a person duly elected Representative in Congress hold an office
prior to the meeting of Congress at the time fixed by the Constitution,
or pursuant to a special call by the President and before taking the
oath required by the Constitution?
It has been strenuously urged that a person so duly elected does not
hold any office until Congress assembles and the oath is taken. With
this contention we can not agree. Article I of the Constitution
provides:
``Section 1. All legislative powers herein granted shall be vested in
a Congress of the United States, which shall consist of a Senate and
House of Representatives.
``Sec. 2. The House of Representatives shall be composed of Members
chosen every second year by the people of the several States, etc. * *
* The House of Representatives shall choose their Speaker and other
officers, etc.
``Representatives and direct taxes shall be apportioned, etc.
``No person shall be a Representative who shall not have attained,
etc.
``Sec. 4. The time, places, and manner of holding elections for
Senators and Representatives shall be prescribed in each State by the
legislature thereof, etc.
``Sec. 6. The Senators and Representatives shall receive a
compensation for their services to be ascertained bylaw, etc. * * *
``No Senator or Representative shall during the time for which he was
elected be appointed, etc. * * * And no person holding any office under
the United States shall be a Member of either House during his
continuance in office.''
The Constitution frequently speaks of ``each House.'' Article VI
provides:
``The Senators and Representatives before mentioned, and the members
of the several State legislatures, and all executive and judicial
officers, both of the United States and of the several States, shall be
bound by oath or affirmation to support this Constitution, etc.''
The Constitution does not prescribe the time when or the officer
before whom such oath is to be taken. Taking the oath is not made a
condition precedent to holding the office.
But section 1, chapter 1, of the first act or statute of the First
Congress, which assembled at the city of New York March 4, 1789,
prescribed the form of the oath to be taken pursuant to the
Constitution, and section 2 of such act provided as follows:
``That at the first session of Congress after every general election
of Representatives the oath or affirmation aforesaid shall be
administered by any one Member of the House of Representatives to the
Speaker, and by him to all the Members present, and to the Clerk,
previous to entering on any other business, and to the Members who
shall afterwards appear previous to taking their seats, etc.''
Section 2 of Article I says:
``Each House may determine the rules of its proceedings, etc.''
If we note carefully the language of this act of the First Congress,
it is apparent that it was not considered that the oath was a
prerequisite to becoming ``a Member,'' for it says the oath or
affirmation aforesaid shall be administered by any one Member of the
House of Representa-
-----------------------------------------------------------------------
\1\ Second session Fifty-sixth Congress, House Report No. 2656, pp.
10-13, 17, 27-29, 42-50.
Sec. 185
tives to the Speaker, and by him to all the Members present, and to the
Clerk, previous to entering on any other business, and to the Members
who shall afterwards appear previous to taking their seats.''
All duly elected are ``Members'' before taking the oath,\2\ but they
can not take their seats until the required oath is taken.
Then is it not true that all Representatives elected become
``Members'' from the very hour and minute of the commencement of the
term for which elected?
The commencement of the term for which Representatives are elected
was fixed and determined as follows:
After the adoption of the Constitution by the requisite number of
States the Continental Congress adopted the following resolution on the
13th day of September, 1788: \1\
``Resolved, That the first Wednesday in January next be the day for
appointing electors in the several States which before the said day
shall have ratified the said Constitution; that the first Wednesday in
February next be the day for the electors to assemble in their
respective States and vote for President, and that the first Wednesday
in March next be the time and the present seat of Congress the place
for commencing proceedings under the said Constitution.''
The several States elected Representatives in Congress for the First
Congress, and it assembled March 4, 1789, the first Wednesday of that
month, pursuant to the above resolution. By the Constitution
Representatives are chosen every second year, thus fixing the terms of
office.
In the various acts, or some of them, providing for the apportionment
and election of Representatives in Congress future Congresses have been
referred to as commencing on the 4th day of March.\2\
It seems clear that taking the oath is not a condition precedent to
becoming a Member, although the Member can not take his seat in the
House until the oath is taken. This is a rule of action prescribed by
the House.
``Members'' organize the House; ``Members'' elect the Speaker, and
this is a most important function. Any Representative before taking the
oath may administer the oath to the Speaker, and the Speaker
administers the oath to whom? Representatives-elect? No; but to
``Members.'' ``The House of Representatives shall choose their
Speaker.'' The House exists before a Speaker is chosen or the oath
taken.
After quoting Blackstone to the effect that an office is ``a right to
exercise a public or private employment and to take the fees and
emoluments thereunto belonging,'' and other authorities,\3\ in the same
line, the report cites authority \4\ in support of the statement that
there is nothing in the Constitution or in the statutes that makes the
taking of the oath a condition precedent to taking and holding the
office of Representative in Congress when elected by the people for a
definite term fixed by law. Even when a statute fixes the time and it
is not complied with, the person elected or appointed is in and vested
with the office when the term commences unless it is declined.
The report further contends:
The word ``Member-elect'' was never used in any of the statutes until
1873 (as we can find) and was not intended to overthrow the
Constitution, which provides that Members are elected by the people,
not made such by taking an oath, but was used simply to distinguish
between Members who had become entitled to a seat by taking the oath
and those not entitled to sit in the House after its organization. * *
*
We should also call attention to the fact that we always have a
Congress--always have a Senate; always have a House of Representatives
and Members of the House of Representatives.
-----------------------------------------------------------------------
\1\ See Journal of Continental Congress.
\2\ Revised Statutes, sec. 25.
\3\ Blackstone's Commentaries, Book 2, chapter 3, p. 36; Kent's
Commentaries, p. 454; United States v. Hartwell, 6 Wall., 385-393.
\4\ Mechem's Public Offices, see. 247; Throop, Public Offices, secs.
3 and 173; Clark v. Stanley, 66 N. C., 59.
Sec. 185
The House may not be organized, but it exists, nevertheless. Section
2, Constitution United States, says: ``The House of Representatives
shall choose their Speaker.'' The Representatives in Congress or
Members of the House may not have taken the oath of office, but they
are elected, and each comes into office, if eligible, the very moment
the term of his predecessor ceases.
Mr. D. H. Smith, who filed individual views, held the same opinion,
saying:
When it is remembered that the Clerk of the House usually makes up
the roll of the House between the election and the 4th of March
following, the word ``Representative-elect'' used in section 31 of the
Revised Statutes is perhaps as aptly used as any that could have been
selected and not necessarily in conflict with the above definition.
Likewise when attention is called to the fact the credentials of those
elected at the regular time for electing Representatives are almost
universally filed before the term begins, while they are really and
truly Members-elect, it is not astonishing that this language is found
in section 38, though other words less liable to confuse might have
been used. But whatever influence such citations might have, it is
entirely safe to say the instances in which persons elected to Congress
are referred to after their terms have begun as Members are much more
numerous than those where the other expression is employed.
There are many statutes prohibiting Members of Congress from doing
things that might be detrimental to the best interests of the
Government--such as those that forbid a Member from practicing before
the Court of Claims, from taking compensation for procuring public
contracts or offices, from being interested in public contracts, and a
great number of similar statutes. If it be true that prior to the
convening of a Congress in its first session those chosen thereto are
not Members, then it is a matter of serious and urgent importance that
Congress address itself to the work of amending a multitude of statutes
heretofore supposed and believed to apply to a Member of Congress
before he is sworn, as well as afterwards. * * * But it is said that
the oath of office is not taken until Congress meets, and that one can
not therefore be a Member before that. Without the Constitution or the
statute makes the taking of the oath a prerequisite to becoming a
Member it may be taken at a subsequent time, and in the absence of such
requirement one may become a Member without it.
The First Congress of the United States met on the 4th of March,
1789, and no Member of the House took the oath until April 8, and no
Senator took the oath until the 3d of June, although prior to either
date much business was transacted, including the count of the electoral
vote for President and Vice-President of the United States. In that
Congress was many of those who had been in the convention and assisted
in forming the Constitution, and while all were familiar with its
provisions these no doubt possessed that thorough knowledge of the
instrument in detail that could only be acquired by having participated
in constructing it. By their official course they gave us an
interpretation of that part requiring an oath which was in effect that
the oath could be taken after the session had begun, but the statute
has so far modified this as to require it to be taken at the beginning
of the first session. * * * Congress can not commence without Members,
hence all such persons chosen to compose the Congress who have not
died, resigned, or declined, and who are eligible on the 4th of March
succeeding their election, if it be at the regular time, become Members
of the Congress to which they have been elected. From the commencement
of the Congress to which they have been elected they are Members until
they in some manner vacate their positions.
Messrs. Charles E. Littlefield, of Maine, and Julius Kahn, of
California, dissented from the view taken in the report of the
committee, and in the views which they jointly submitted contend that
until a ``Member-elect'' or ``Representative-elect'' has taken the oath
of office as a ``Member'' he is not a ``Member'' of the House. A
``Member-elect'' is simply a person who, by reason of possessing the
requisite qualifications, having been elected therefor, is capable when
the constitutional time arrives of becoming a ``Member.'' The first
mention of ``Member-elect'' or ``Representative-elect'' in the statutes
was in section 31, Revised Statutes, and then in section 38. The
statutes relating to salary provided that the Member-elect should draw
salary without the oath; the Member only after the oath. For at least
seventy-seven years the laws in relation to compensation were such that
the Member-
Sec. 185
elect received no salary, payments being made only to Members who had
taken the oath. Furthermore, the ``Member-elect'' had none of the
attributes or privileges of a ``Member'' except as they are specially
conferred by statute. Thus the Member-elect has the franking privilege;
but so also does the ex-Member for a certain time after the expiration
of his term. The views of the two Members are given further:
A ``Member-elect'' is in no sense within the constitutional
inhibition, for as a ``Member-elect'' he has neither power nor
opportunity to do any act inconsistent with the duties of any other
office. He can not vote, except for Speaker. He can not discharge any
of the duties or exercise any of the powers of a ``Member.'' He can
only enjoy certain privileges specifically annexed to his status as a
``Member-elect'' by statute. However much the elements that inhere in
an inconsistent office might control for good or ill the manner in
which a ``Member'' might discharge his duties as such, these elements
can have no effect upon the action of a ``Member-elect,'' who can not
act at all. The inhibition is based upon the idea that the inconsistent
office involves considerations whose probable tendencies would be to
improperly affect the discharge of public duties by a Member. When
considered in connection with a ``Member-elect,'' who has no power to
discharge such duties, the reason fails.
As to the contention that the provision of section 30, Revised
Statutes, shows that Members are Members before they are sworn, it is
urged that--
That does not follow. The election of a Speaker is but one of the
steps in the organization of the House. It is clear that Members-elect
necessarily have the inherent power to take this step in order that the
House may be organized of which they may become Members. You can only
predicate the idea of Members upon an existing body, and to hold that
you can not have an organized body unless you first have members is to
beg the question. The organization of a corporation created by special
act illustrates the idea. The act creates certain persons, called
associates or corporators, a body corporate, but this does not organize
the corporation or make the corporators stockholders or members
thereof. It does confer upon the corporators power to organize a
corporation of which they may afterwards become members by becoming
stockholders, but the fact that they can and do exercise the
indispensable power of organizing does not of itself make or tend to
make them ``members'' of the body they organize. The same result
follows as to ``Members-elect.''
If the right of voting for Speaker demonstrates that a person is a
Member, then the objection to Roberts, of Utah, was not interposed
early enough. No one thought of questioning his right to vote for
Speaker. The question in his case was solely one of exclusion or
expulsion. Exclude him, and prevent him from becoming a Member.
Therefore he was halted at the oath. But it is now contended that the
oath is not an essential prerequisite to membership for the purpose of
establishing the proposition that a Representative-elect becomes a
``Member'' on the 4th of March of a House not in existence and so
continues, and the formality of an oath, though required by the
Constitution, is thus dispensed with, as under such a construction it
is not essential. Still, although they have thus reasoned the oath out,
they must concede that this ``Member'' can not draw compensation
without taking the oath, while a ``Member-elect'' can. Such an
inconsistency demonstrates the fallacy of the reasoning. Roberts, of
Utah, drew salary as Member-elect until November 3, 1899, exercised the
franking privilege, and voted for Speaker. Was he a ``Member'' from
March 4, 1899? If so, his exclusion from the office nearly a year later
was hardly effective. Notwithstanding this new construction it was
never suggested before that he was even a Member de facto.
Moreover, on the 26th day of January, 1900, by a large majority, the
House held that he was not entitled to membership therein, and excluded
him therefrom. It was expressly understood that majority was necessary
to exclude, while it was conceded that two-thirds were necessary to
expel a ``Member.'' Did Roberts, under this new theory of the
committee, become in any legal sense, de facto, de jure, or otherwise,
a ``Member'' March 4, 1899? If so, the proceedings were had under a
curious misconception of the situation. If he did not then become a
``Member,'' could he, on the theory of the committee, be the
``predecessor,'' within the meaning of section 51, of his successor?
Yet his successor
Sec. 185
was elected in March, 1900, and upon the proper certificate drew
compensation back to January 26, 1900, which he could hardly have done
had Roberts not been his ``predecessor'' within the meaning of that
section.
In further support of this contention the two Members quote a
decision of the Comptroller of the Treasury \1\ in the case of Mr.
Boatner, and of Attorney-General Devens \2\ in the case of Delegate
Romero, in both of which the Member-elect was not regarded as a Member.
There was no action by the House on the report.
-----------------------------------------------------------------------
\1\ Opinions of Comptroller of Treasury, Vol. 3, p. 20. See see. 28
of this work.
\2\ 15 Attorneys-General Opinions, p. 280; also 14 A. G. Decisions,
p. 406.