Constitution, sections 625-627; the contested-election cases of Fouk vs. Trumbull and Turney vs. Marshall from the State of Illinois (1 Bartlett, 168; McCrary, Election Laws, sections 227, 228, 252; Donnelly vs. Washburn, Forty-sixth Congress; the case of Wittemore in Forty-first Congress; the case of Matteson in the Thirty-fifth Congress; the case of Benjamin G. Harris, are all in point.

But it is said that it may be conceded that the rule above stated as to the power of the House relating to members is correct, but that a Delegate from the Territories is not a constitutional officer, and does not as to qualification stand upon the same ground as a member from a State, and that the constitutional provision does not apply to a Delegate; that he is a nondescript, and has no right and can claim no protection under the Constitution.

So far as our research has extended since the formation of the Government we can find no case reported that makes any distinction between the qualifications of a member from a State and a Delegate from the Territory.

Whenever that question has arisen the rule as to qualifications has been the constitutional provision, and this has been applied to the Delegates from the Territories. The case of James White, decided in 1794, is not an exception.

It may be that in express terms the Constitution does not apply to Territories; but the spirit and reason of the Constitution does apply and establishes a proper standard.

If the constitutional standard is not adopted as to qualifications, then there is no rule for the government of the House as to Delegates.

The House at this session may establish one rule, and the next session may revoke or establish another and different one, and the right of a Delegate would be wholly uncertain.

There are laws that have been passed by Congress touching this subject that give color to the views we present. These laws show that a Delegate, except as to a vote in the House, is put upon the same footing as a member from a State.

Besides, there has always been the same practice from the formation of the Government as to Delegates and members by referring their cases to the Committee on Elections, both being treated alike in this respect.

The time, manner, and places of elections of members of Congress, including Delegates from the Territories, are prescribed and made the same by 14 U. S. Stat., sections 25, 26, and 27.

By section 30, Revised Statutes, the oath of office of members of Congress and Delegates from the Territories is prescribed, and is the same for a Delegate as a member.

It is important to remark that this statute was passed June 1, 1789, and has ever since been the law.

Section 35, Revised Statutes, provides that members and Delegates are to be paid the same salary.

Section 51 provides that vacancies in the case of Delegates are to be filled in the same way as in case of members.

The organic law for Utah, September, 1850, provides:

That the Constitution and laws of the United States are hereby extended over and declared to be in force in said Territory of Utah, so far as the same or any provision thereof may be applicable.

This is a law of Congress passed by virtue of the Constitution, and is binding on Congress until repealed.

Now, why is the provision of the Constitution relating to qualification of members not applicable to the Territories? What reason can be given

why it should not apply? What better standard for qualification can be made?

The adoption of the rule establishes uniformity and certainty, the operation is salutary, and its adoption since the formation of the Government demonstrates its advantages and necessity.

The argument is made that a Delegate is not a constitutional officer, and, therefore, not a member of the House in the sense of the Constitution, and that the House may seat or unseat a Delegate at will.

We believe this is the first time since the formation of the Government that this argument has been advanced.

If a Delegate from a Territory is not a member by virtue of the Constitution and laws, then what rule or law do you apply to him? Is it the arbitrary will or caprice of the House at each session?

If, as is said, a Delegate is not a member, certainly you cannot invoke any provision of the Constitution as to qualification or expulsion. The constitutional rule wholly fails upon this theory.

It would follow from this view that the constitutional right of the House to judge of the election, returns, and qualifications of its members does not apply to Delegates, and therefore the House is without constitutional power in the premises, and that whatever power the House possesses as to Delegates, it must be derived from some other

source.

The extraordinary and dangerous doctrine is advanced by the majority of the committee

That the Delegates sit in the lower House by its grace and permission, and it makes no difference whether that permission is expressed in a statute or mere resolution of the House.

The House can at any time disregard it and refuse to be bound by it.

It [Congress] cannot affix a qualification by law for a Delegate and bind any House except the one assenting thereto. Congress cannot bind the House by any law as to the qualification of a Delegate.

Our opinion is that it is competent for Congress, by a proper statute, to provide for the election in the Territories of Delegates to Congress, under Article IV, section 3, clause 2:

The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.

It has been decided under this article of the Constitution a great many times that it gives Congress the right to legislate for the Territories, and to make such laws and rules as may be for the advantage of the Territories and of the country.

Now, under this clause of the Constitution, if in the opinion of Congress, in making needful rules and regulations respecting the Territories, it should be necessary to provide for the election of a Delegate from said Territory to this House, and Congress should so provide that said Delegate should have a seat and the right to debate, could the House alone nullify that law and refuse to seat the Delegate ?

Why is not the House bound by constitutional laws? What right has the House to nullify and refuse to obey a law it has helped to make?

We have already referred to various laws of Congress making express provisions for the election of Delegates from the Territories, giving them a right to a seat in the House, and generally applying the same rules to Delegates as members, except Delegates have not the right to vote. Also, as we have seen, the organic law of Utah adopts the Constitution and laws of the United States, so far as applicable, as a part of that organic law.

Also, sec. 1891, Revised Statutes, gives the Constitution and laws force and effect in all the Territories, so far as applicable.

The law-making department of the Government has made these various laws in a constitutional way, and until repealed they are binding upon every individual in the land and every department of the Government, including Congress. No one is above the laws in this country.

Certainly one House alone cannot repeal a law of Congress nor nullify it by any direct or indirect proceeding. It is absolutely bound by the law.

If Congress has the right to make a law and provide for the election of Delegates to this House, and if the constitutional qualifications do not apply to them, and there is no statute fixing their qualifications, it would seem to follow that the House would be bound to admit as a Delegate under the law such persons as the people of the Territory might elect to represent them, however obnoxious they might be to the House. The people of the Territory being satisfied, no one else can complain.

Suppose Congress should pass a law providing that Cabinet officers should be allowed seats in the House, with the privilege of answering questions put to them relating to the Executive Department, and the other Departments of which they were chief, and with the right to debate.

Then, could the House refuse to permit these officers seats and the privileges accorded to them under the law?

Could the House refuse them a seat on the ground that they were not qualified, and set up some fanciful standard of qualifications not prescribed by the statute?

Could the House exclude them under the law upon the ground that they were heretics, or Mormons, or polygamists-Catholics, Democrats, Republicans, or Greenbackers?

Would not the House be bound to obey the law that had been made by Congress and permit the Cabinet to seats, however offensive they might be personally?

The logic of the majority of the committee is that one House alone could nullify the law and exclude ad libitum.

In the Forty-third Congress, in the case of Maxwell vs. Cannon, precisely the same question was involved in that case as in the one before the committee.

The question was stated this way:

That George Q. Cannon is not qualified to represent said Territory or to hold his seat in the Forty-third Congress, for the reason, as shown by the evidence, that he, on and before the day of the election in August, 1872, was openly living and cohabiting with four women, as his wives, in Salt Lake City, in Utah Territory, and he is still living and cohabiting with them.

On the question of qualifications, and the effect of making the Constitution a part of the law by act of Congress, the committee say:

It being conceded that the contestee has these qualifications, one other inquiry only under this head remains, to wit: Does the same rule apply in considering the case of a Delegate as of a member of this House? This question seems not to have been raised heretofore. The act organizing the Territory of Utah, approved September 9, 1850, enacts that the Constitution and laws of the United States are hereby extended over, and declared to be in force in, said Territory of Utah, so far as the same, or any provision thereof, may be applicable. It was said, on the argument, that the Constitution cannot be extended over the Territories by act of Congress, and the views of Mr. Webster were quoted in support of this position.

We do not deem it necessary to consider that question, because it will not be denied that Congress had the power to make the Constitution a part of the statutory law of the Territory as much as any portion of the organic act thereof. For the purposes of this inquiry it makes no difference whether the Constitution is to be treated as consti

tutional or statutory law. If either, it is entitled to be considered in disposing of this case.

Upon this point there does not seem to have been any difference of opinion in the committee.

The committee in the same case, referring to the question of polygamy, say:

The question raised in the specification of contestant's counsel, and above transcribed, is a grave one, and unquestionably demands the consideration of the House. This committee, while having no desire to shrink from its investigation, finds itself confronted with the question of jurisdiction under the order referring the case.

The Committee on Elections was organized under and pursuant to article 1, section 5, of the Constitution, which declares: "Each House shall be the judge of the elections, returns, and qualifications of its own members." The first standing committee appointed by the House of Representatives was the Committee on Elections. It was chosen by ballot, on the 13th day of April, 1789; and from that time to this, in the vast multitude of cases considered by it, with a few unimportant exceptions, in which the point seems to have escaped notice, the range of its inquiry has been limited to the execution of the power conferred by the above provision of the Constitution. What are the qualifications here mentioned and referred to the Committee on Elections? Clearly, the constitutional qualifications, to wit, that the claimant shall have attained the age of twenty-five years, been seven years a citizen of the United States, and shall be an inhabitant of the State in which he shall be chosen. The practice of the House has been so uniform, and seems so entirely in harmony with the letter of the Constitution, that the committee can but regard the jurisdictional question as a bar to the consideration of qualifications other than those above specified, mentioned in the notice of contest, and herein before alluded to.

We conclude that the question submitted to us, under the order of the House, comes within the same principles of jurisdiction as if the contestee were a member, instead of a Delegate.

The minority said:

It is admitted in the report, and the fact has not been and is not denied, that Mr. Cannon possesses the constitutional qualifications, unless the qualifications of a Delegate in Congress from a Territory differ from the qualifications fixed by the Constitution for a member of the House. There can be no sufficient reason assigned for the position that the qualifications are any different. The line of demarkation between these two great powers of the House, the power to judge of the elections, returns, and qualifications of its own members, by a mere majority vote, and the power to expel its members by a two-thirds vote, is clear and well defined.

*

The "views" of the minority on the point were further expressed in these words:

But a graver question than those we have considered is the question whether the House ought, as a matter of policy, or to establish a precedent, to expel either a Delegate or member on account of alleged crimes or immoral practices, unconnected with their duties or obligations as members or Delegates, when the member or Delegate possesses all the qualifications to entitle him to his seat.

If we are to go into the question of the moral fitness of a member to occupy a seat in the House, where will the inquiry stop? What standard shall we fix in determining what is and what is not sufficient cause for expulsion? If a number of members engage in the practice of gaming for money or other valuable thing, or are accused of violating the marital vow by intimate association with four women, three of whom are not lawful wives, or are charged with any other offense, and a majority of the House, or even two-thirds, expel them, it may be the recognition of a dangerous power and policy. If exercised and adopted by one political party to accomplish partisan ends, it furnishes a precedent which it will be insisted justifies similar action by the opposite party, when they have a majority or a two-thirds majority in the House; and thus the people are deprived of representation, and their Representatives, possessing the necessary qualifications, are expelled for causes outside of the constitutional qualifications of members, or those which a Delegate must possess, so far as his qnalifications are fixed by reason or analogy, or are drawn from the principles of our representative system of government

It may be stated that the reports, both of the majority and minority, were made by Republicans.

That is a precedent that covers the case before this committee in every particular. It was exhaustively discussed in the committee and

in the House, and was adopted by the House by an overwhelming majority, and it stands to-day as the rule and law of the House, unless it shall be reversed.

The issue in that case was sharply made, and the rule established that Delegates from Territories are entitled to the benefit of the constitutional limitations as to qualifications, and that polygamy was not a disqualification.

Now, if the rule that has been established and practiced since the formation of the Government as to qualification for members and Delegates to the House is to be reversed and a different rule adopted, what standard shall it be?

This House may exclude a member on a charge of polygamy. The next House may exclude a person elected because he is a heretic or a Catholic or a Methodist, or because he had been charged by his opponent with adultery or some other offense.

Every one can see that such a rule or license would be dangerous to the rights and liberties of the citizens and an end to republican govern

ment.

The party in power would be governed by arbitrary will and caprice alone.

Mr. Cannon, the contestant here, claims in good faith that polygamy is a religious conviction and principle with him and his people, and in this he is entitled to protection under the Constitution.

The people he represents have elected him and are satisfied with him, and this House should be content.

The sixth article of the Constitution provides that—

No religious test shall ever be required as a qualification for any office of public trust under the United States.

It seems to us that the contestant is entitled to the above provision of the Constitution as a protection. He has been convicted of no crime and there is no law on the statute book that disqualifies him as a Delegate.

IS MR. CAMPBELL ENTITLED TO A SEAT?

Mr. Campbell insists that although he may be a minority candidate, Mr. Cannon's ineligibility entitles him to the seat. If there are any questions settled beyond the reach of argument this is one of them. In the case of Maxwell v. Cannon (Smith, 182) the Committee of Elections say:

The contestant insists upon his right to the seat as the minority candidate, in case the House shall ultimately determine to unseat or expel the sitting member. The counsel for the contestant referred the committee to the case of A. Š. Wallace v. W. O. Simpson, in the Forty-first Congress, in support of the claim of contestant. A critical examination of the case will show that it cannot be considered as authority for the doctrine. Not only is this not an authority for the doctrine contended for, but the cases establishing the opposite doctrine are so numerous and uniform as to absolutely remove the question in this country from the realm of debate.

#

The committee cite the following cases: Smith v. Brown (2 Bartlett, 395); Ramsey v. Smith (Clarke & Hall, 23); Albert Gallatin, Senate, 1793; Philip B. Key, House, 1807; John Bailey, House, 1824; James Shields, Senate, 1849; J. Y. Brown, House, 1859; Cushing's Treatise; Zeigler v. Rice (2 Bartlett, 884); Simeon Corley, P. M. B. Young, Nelson Tift, and R. B. Butler, House, Forty-third Congress; F. E. Shober, House, Forty-first Congress, and J. C. Abbott, Senate, Forty-second Congress.

Our conclusions are that Cannon had a clear majority of the legal votes for Delegate.