When the Constitution was adopted it stipulated what should be the qualifications of the members of the House. But one kind of members were therein contemplated. These were the Representatives from States, or of districts within the States. At the first Congress another kind of member was created by statute-one of limited powers, but a member, nevertheless. He had a seat on the same floor, received the same compensation, could propose and advocate, and, in fact, do anything a Representative could do, except to vote and to move to reconsider. Thenceforth the membership of the House consisted of two classes: Representatives and Delegates. When this new species of membership was authorized, they came in subject to that clause in the Constitution that the House should be the judge of the elections, returns, and qualifi cations of its members, and also subject to the power of the House by a two-thirds vote to expel a member; and their qualifications as to age, residence, and inhabitancy was that required of members. They were members of the House with limited powers, and must have like qualifications.

If that result does not follow from the statute creating the office of Delegate and making a further membership in the House, it is to be ob served that Congress has extended the Constitution and statutes of the United States over the Territories, except where locally inapplicable. The Constitution becomes thereby a part of the organic statutory law of the Territory, and extends the qualifications of the Representative to the Delegate to be elected.

HOUSE HAS ONLY POWER OVER MEMBERS.

What power has the House to judge of the election, returns, or qualifications of a Delegate, if the latter is not a member of the House? What power have we to expel a Delegate for the grossest misconduct or crime?

You may look through the Constitution, statutes, rules of the House and of the committee in vain to find a single provision to examine or judge of the elections, returns, or qualifications of Delegates unless a Delegate is a member.

Neither will you find any power of expulsion for any cause unless a Delegate is a member.

Do you say the House has inherent power to protect itself, which includes the power of admission and expulsion? I answer, only as to its members, and if you deny the membership of Delegates, you abrogate all power to judge of their elections, returns, or qualifications, or to expel for misconduct.

The construction that the members of the House are composed of the Representatives and Delegates elected thereto will not give the Delegate a right to vote, as has been erroneously assumed. The statute provides directly that they shall not vote, and as to that the Constitution made the organic statutory laws of the Territories is not applicable. If a Delegate is not a member in the sense I have contended there is no act of Congress authorizing a contest to be had touching his seat.

THE SEATS OF MEMBERS MAY BE CONTESTED.

The practice act provides what a contestant must do if he desires "tocontest the election of any member." See Revised Statutes, section 105 et seq. Its provisions relate simply to members. A Delegate is not mentioned in

Rule 11th of the House provides that

All proposed legislation shall be referred to the committes named in the preceding rule, as follows:

Subjects relating:

Clause 1. To the election of members: to the Committee on Elections.

Clause 47. The following-named committees shall have leave to report at any time on the matters herein stated, to wit:

The Committee on Elections, on the right of a member to a seat.

The Committee on Elections have no power to investigate the case of Cannon vs. Campbell, the House no authority to adjudicate thereon, unless they claim to be members-elect of the House.

No rule of the House ever sent this case to a committee unless these parties claim to be elected members.

A REPRESENTATIVE IS A MEMBER, BUT A MEMBER MAY NOT BE A

REPRESENTATIVE.

The difficulty results from a misconception of terms, in failing to distinguish between a Representative in the House and a member.

A Representative is a member, but a member may not be a Representative in the technical sense of the term; a Delegate is also a member. A Representative is a member with full powers. A Delegate is a member with limited powers. Both occupy seats, confer, consider, advocate, and propose, and form the membership of the House under the Constitution and statutes of the land. Their seats are contested by the same statutes and under the same rules of procedure. Their elections, returns, and qualifications are judged by the same standard, and they are excluded from the House for cause alike by a two-thirds vote of the voting membership.

This question, as before observed, is not an open one.

MAXWELL vs. CANNON IN FORTY-THIRD CONGRESS.

The exact question was determined in the Forty-third Congress in the case of Maxwell vs. Cannon (Smith's Cont. El. Cases, p. 182).

Gerry W. Hazleton, on behalf of the Committee on Elections, submitted the principal report. As a precedent it [that case] is unreversed, and until now unquestioned, and the reasoning on which it stands is unassailable.

That report takes up the question of polygamy, and discusses the proposition whether the fact that George Q. Cannon at and before the election in question was openly living and cohabiting with four women as his wives at Salt Lake City, and was still cohabiting with them, disqualified him to represent that Territory as a Delegate.

The question of the jurisdiction of the committee is first raised, and the committee determine that their jurisdiction is limited to the elections, returns, and qualifications of its members; that the qualifications alluded to are age, citizenship, and residence, and that the uniform practice of the House limited the inquiry as to qualifications to those pointed out in the Constitution itself.

The matter being conceded (so says Mr. Hazleton's report) that Cannon had these qualifications, the query arose :

"Does the same rule apply in considering the case of a Delegate as a member of the House?"

It was shown that the act organizing the Territory of Utah extended the laws and Constitution of the United States over that Territory so far as the same were applicable; and it was suggested that whether the Constitution was technically extended as such over the Territory or

not, that certainly Congress could make the Constitution a part of the statutory law of the Territory as much as any other portion of the organic law thereof; that, having done so, the committee must fairly and justly assume that by making the Constitution a part of the law of the Territory Congress intended to indicate that the qualifications of the Delegate to be elected should be similar to those of a member. The House, however, went further than this report, which simply found that Cannon had been duly elected and returned, and adopted a resolution, offered by H. H. Harrison, declaring Cannon to have been duly elected and returned, and entitled to a seat from the Territory of Utah.

THE EFFECT OF CRIME IN CONTESTED-ELECTION CASES.

The same rule as to the limits of the jurisdiction of the committee and as to the result of crime imputed to a contestee, is laid down and insisted on in a report made by Speaker Keifer in the case of Donnelly vs. Washburn in the Forty-sixth Congress. In that case Washburn was charged with bribery, and it was insisted that the charge was successfully proved against him, and as a result of it that the bribed votes were not merely to be deducted, but that the crime being fastened on him worked a disqualification to the office that he had sought through bribery. But the learned Speaker insisted it only excluded the bribed votes, and that, even if guilty of bribery, that was not a constitutional disqualification, and that bribery "does not vitiate when it does not impregnate."

A WELL-CONSIDERED PRECEDENT SHOULD NOT BE LIGHTLY OVER

TURNED.

If the settled law upon this subject is to be overturned, it ought to be upon a very clear case and for reasons the most cogent.

The rule has heretofore been that when a person claiming to be a member elect, whether Representative or Delegate, knocks at the door of the House for admission, the questions asked are:

1. Was he duly elected?

2. Was he duly returned?

3. Has he the qualifications of age, citizenship, and inhabitancy required alike of the Representative by the Constitution or the Delegate by Constitution and statute? If the questions are answered in the affirmative, he is awarded his seat, subject to the expulsion of the House for misconduct or crime that would make him unworthy of the fellowship of the House.

RULE AS TO QUALIFICATIONS OF REPRESENTATIVE AND DELEGATE SHOULD BE THE SAME.

It is said the provisions of the Constitution are inapplicable to the qualifications of a Delegate. Will some one tell us why? Does it not furnish a good rule as to age, residence, and citizenship? Can any person give a good reason why a higher standard of morality should be required for a Delegate, who can only speak and not vote, than for a member, who can both speak and vote?

Besides, a departure from the Constitutional rule lands us in a wide ocean, without chart or compass, so that a Delegate shall hold his place, not by a charter of right which each member is bound in conscience to

obey, but his admission or rejection depends upon the undefined and ever-changing moral test of the majority.

To day polygamy; to-morrow fornication or other breach of marital duty may form it; next week the gambler may be interdicted, and a month later the drunkard; infidelity may become the test, or some religion or tenet so different from our own that we feel it a crime against the civilization of the nineteenth century. Either or all may stand like flaming swords to protect the portals of the House against the offending Delegate who seeks admission.

There is no despotism so intolerable as the despotism of an unbridled majority, unrestrained by law.

RIGHT OF HOUSE TO REJECT AN ELECTED DELEGATE.

Why should the House refuse to receive a member or a Delegate having the qualifications prescribed by both Houses of Congress! Utah was admitted as a Territory by the concurrent action of the lawmaking power of the nation. She was given qualified representation on the floor of the House by like action of Congress. Has this House any legal right to annul the legislation giving to Utah an agent on the floor of the House any more than it has to annul the legislation admitting the Territory? And if not, has the House any legal right to keep out any agent the Territory may elect and return that has the qualifi cations of the Constitution made by Congress a part of the organic law of that Territory?

CERTAIN CONSTITUTIONAL PROVISIONS CONSIDERED.

And in this connection I am not here denying the right of the House to protect itself against men who from moral turpitude are unworthy of a seat in its halls. And that brings me to consider for a moment the proper construction to be given to the two clauses of the Constitution-one providing that the House shall be the judge of the election returns and qualifications of members, and the other clause enabling the House to expel a member by a two-thirds vote.

When a member presents his credentials and claims to be a member elect, the House exercises the exclusive jurisdiction granted by the first clause, and inquires is he duly elected? which is determined by ascertaining whether he secured a majority or plurality of votes. Is he duly returned? This is answered by examining the regularity of his creden tials; and has he the constitutional qualifications? which is answered by inquiring, was he a citizen, was his age as required by the Constitution, and did he reside in the Territory he proposes to represent? After making these inquiries and finding all the facts in his favor and according to the constitutional requirements, the House cannot lawfully go on to inquire into his religion, morals, or even his crimes. He first takes his seat, and then he becomes subject to the expulsion of the House for crime, even a crime as undefined as one against the civilization of the nineteenth century. But another rule here obtains. When you charge a man with such tenets, principles, practices, and crimes as you assume makes him unworthy of a place in the membership of the House, you must convince two-thirds of the voting membership of the existence of an adequate reason for expulsion. This forms a protection against the unbridled power of a mere majority. If a crime of dark turpitude is clearly proved against a member, two-thirds can easily be found who will unite to drive him from the seat he has dishonored, but not so of a doubtful case or accusation.

This construction gives the proper effect to the two clauses of the Constitution, and are applicable alike to Representatives and Delegates. I conclude, therefore, that Cannon is entitled to a seat on the floor of the House; and it is a question for the determination of the House, and not of this committee, whether he should hereafter be expelled for the practice of polygamy or other alleged crime or misconduct on his part. That question is not now for this committee. It need not be determined till reached.

The House has the power and technical right, at least, to expel Cannon for the practice of bigamy by a two-thirds vote. It can do so without the violent and revolutionary assumption of power that is now necessary to deny him the seat, and without furnishing a precedent that will invite every disappointed contestant to attack the moral character of his adversary and scatter slander on every wind through the medium and machinery of a contest, real or pretended. Look well to the consequences before such a practice is invited.

MINORITY REPORT.

In the matter of George Q. Cannon, contestant, vs. Allen G. Campbell, contestee, from the Territory of Utah, and referred to the Committee on Elections of the Forty-seventh Congress, the said committee have had the same under consideration, and the undersigned, a part of said committee, make the following report, as expressing their views upon the matter submitted:

The Revised Statutes of the United States contain the following provision:

SEC. 1862. Every Territory shall have a right to send a Delegate to the House of Representatives of the United States, to serve during each Congress, who shall be elected by the voters in the Territor y qualified to elect members of the legislative assembly thereof. The person having the greatest number of votes shall be declared by the governor duly elected, and a certificate shall be given accordingly. Every such Delegate shall have a seat in the House of Representatives, with the right of debating, but not of voting.

Section 1844 of the Revised Statutes expressly requires "a record to be made" of all proceedings of the executive as follows:

The secretary shall record and preserve all laws and proceedings of the legislative assembly, and all the acts and proceedings of the governor in the executive department.

The Territorial law of Utah provides as follows:

SEC. 21. The clerk of the county court shall also, as soon as possible after the result of the election has been so determined, make out a general abstract thereof in triplicate, and certify to the correctness thereof, one of which he shall post up in his office, and forward to the secretary of the Territory a certified copy of the names of the persons voted for and the number of votes each has received for Territorial offices.

SEC. 22. As soon as all the returns are received by the secretary of the Territory he shall, in the presence of the governor, unseal and canvass the same, and make an abstract thereof, and the secretary shall within ten days thereafter, make out and transmit a certificate of election to each member of the legislature and Territorial officers elect.

In pursuance of these laws an election for Delegate of the Territory of Utah was held on the second Tuesday of November, 1880, and returns were made to the governor by the proper returning officer.

The votes or returns were canvassed in the presence of the governor and secretary, and thereupon the governor made the following decision: