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On motion to strike out "with regard to property," the vote was ayes 4, noes 7, Delaware not voting.
Mr. Rutledge opposed leaving the power to the Legislature, arguing that the qualifications for the Senate should be similar to qualifications for the State legislatures.
Mr. Wilson thought
It would be best, on the whole, to let the section go out. A uniform rule would probably never be fixed by the Legislature, and this particular power would constructively exclude every other power of regulating qualifications.
On agreeing to Article VI, section 2, the vote was ayes 3, noes 7, Delaware not voting.
The above quotations are taken from Madison's report of the debates and are very illuminating. It will be noted that the convention, according to Mr. Pinckney, had directed that the committee prepare a clause prescribing the property qualifications in the Constitution itself, but that the committee had left such power to the legislature; that Mr. Pinckney's motion for a property qualification in the Constitution was defeated overwhelmingly; that the motion to strike out the words "with regard to property was defeated 7 to 4; that when Mr. Wilson pointed out that if the clause "with regard to property" was left in the Constitution that such clause would “constructively exclude every other power of regulating qualifications."
It was evidently the intention and opinion of the convention that the power .
should not be so limited. The Constitution already had a provision in it that “each House shall be the judge of the election, returns, and qualifications of its own Members," and it is evident that the convention thought that such clause was sufficient to give to each House plenary power to judge qualifications, and consequently when a vote was taken as to whether section 2 of article 6 should remain in the Constitution it was voted down 7 to 3.
It appears that nothing further was said on this subject during the convention.
III. PROVISIONS OF STATE CONSTITUTIONS PRIOR TO ADOPTION OF
1. Origin of "judge
qualifications" clause. 2. Case of John Breckenridge, of Virginia.
It will be noted that Randolph, Pinckney, and Hamilton in their plans submitted to the convention all used the phrase "each House shall be the judge of the elections, returns, and qualifications of its own Members,” or words of the same import. The coincidence of the use of the phrase by the three is indicative of the fact that it was not original with any one of them. What is the origin of the clause? It, of course, did not originate in England, because they had no written constitutions. We, therefore, must examine the constitutions of the States prior to 1789.
The Virginia constitution of 1776 provided for a house of delegates and a senate. The house of delegates was to be composed of—
Such men as actually resided in and are freeholders of the same, and are qualified according to law.
And the senate requirements were the same as those of the house, except that members of the senate must be "upward of 25 years of age.' The constitution further provided:
And each house shall choose its own speakers, appoint its own officers, settle its own rules of procedure, and direct writs of election for the supply of intermediate vacancies.
Officeholders or ministers of the gospel of every denomination being incapable of being elected members of either house.
The above are the only pertinent provisions of the Virginia constitution. Nothing is said about the right of the house to judge of the elections, returns, and qualifications of its own members.
An interesting case arose in 1780. John Breckenridge, a youth of 19, was elected to the house of delegates, which refused him admission upon the ground that he was too young to be entrusted with a decision of matters which were thought to be of such gravity to the State; thereupon his constituents reelected him to the house; the house again refused him admission upon the same ground; thereupon he was elected the third time and the house permitted him to sit. In analyzing this case it is clear that the constitution itself did not prescribe any qualifications except residence and freeholdership. There was no provision in the Virginia constitution specifically giving the house the right to judge of the elections, returns, and qualifications of its members.
A search of the records of the Virginia Historical Society fails to reveal the preservation of any debates upon this subject, but it is evident that the house of delegates assumed that it had the inherent power to judge of the qualifications of its members, regardless of the absence of a constitutional provision giving it such power. There were precedents for its action in the history of the English House of Commons and particularly in the case of Henry Downs which arose in the Virginia House of Burgesses in 1742, which is hereinafter commented upon.
The constitution of North Carolina of 1776 contains no such provision.
The first draft for a constitution for Massachusetts was defeated on March 4, 1778, and a second draft was submitted and adopted in 1780, which, so far as its senate is concerned, required a residence of five years and certain property qualifications—but no religious qualifications and further provided
The senate shall be final judges of the elections, returns, and qualifications of their members, as pointed out in this constitution.
The constitution of New Hampshire of 1784 provided for a residence, property, and religious qualification, and contained the same words as above quoted from the Massachusetts constitution.
The Georgia constitutions of 1777 and of 1789 and 1798 contained provisions that,
Each house shall be the final judges of the elections, returns, and qualifications of their members.
It will be noted that the Georgia constitutions did not incorporate the words “as pointed out in this constitution" contained in the Massachusetts and New Hampshire constitutions.
It will thus be seen that the first written constitution which contained the clause in question was the Georgia constitution of 1777. It is clear that the members of the constitutional convention were familiar with the constitutions of Georgia, Massachusetts, and New Hampshire. The convention, and particularly the committee on detail, had the choice of adopting the language of the Massachusetts constitution or the language of the Georgia constitution, and they chose the language of the Georgia constitution, which contained no limitation of the grant of power. This fact is important in view of the contention made by Mr. Beck in his book The Vanishing Rights of the States, that the John Wilkes case, hereinafter discussed, was “the great constitutional landmark of the eighteenth century and determined for all time the right of Englishmen to be represented in Parliament by members of their own choice." If the Colonies, or later the States, or the Constitutional Convention placed any interpretation upon the Wilkes case, as contended for by Mr. Beck, it is truly remarkable that Georgia should have conferred upon each house of its legislature the right to be " the final judges of elections, returns, and qualifications of their members” without any limitation of the power whatsoever, and it is equally remarkable that the Federal convention should have done likewise.
IV. THE COLONIES PRIOR TO 1776 CONSIDERED THE RIGHT OF REJEC
TION AND EXPULSION AN INHERENT POWER OF LEGISLATIVE BODIES
CASE OF HENRY DOWNS, VIRGINIA HOUSE OF BURGESSES, 1742
Of course, there were no constitutions of the Colonies which contained clauses similar to the one under discussion. Some of the Colonies were proprietary and some of the charters of the Colonies contained provisions for the functioning of their legislative bodies, and little information is available as to the exercise of the right by such legislative bodies to reject or expel their members. However, an interesting case arose in Virginia in 1742 in the house of burgesses. The journals of the house of burgesses (assembly, 1742–1747) contain the following account of the case of Henry Downs (p. 11):
Mr. Conway, from the committee of privileges and elections, reported that they had
"Had under their consideration the information against Mr. Henry Downs, a sitting member, to them referred; and had examined the matter thereof, and heard the said Mr. Downs; whereupon it appeared to the committee from the transcript of a record of the court of Prince Georges County, in Maryland, produced to the committee, duly attested by the clerk, and certified under the public seal of the said county, that at a county court of the right honorable the lord proprietary of that Province, held at Marlborough Town, in and for the county aforesaid, on the 27th day of June, 1721, Henry Downs, together with Edward Brown and James Jones, all of the said county, were indicted of felony, in stealing one sheep, of a white color, of the price of 10 shillings, the property of a certain person unknown, on the 29th day of August then last past, at a place called the Chapel, in that county; and that the said Downs, upon his arraigument, the same 27th day of June aforesaid, did confess himself guilty of the felony and theft, so as aforesaid laid to his charge, and put himself upon the grace and mercy of the court. And thereupon it was considered by that court that the same Henry Downs, by the sheriff of that county, from the bar to the whipping post should be taken, and there being stripped naked from the waist upward, receive on his bare back 15 lashes well laid on by the sheriff aforesaid, 80 that the blood appear; and that after the whipping aforesaid, the said Henry Downs, by the sheriff aforesaid, be put on the pillory for and during the space of half an hour. And afterwards the said Henry Downs, the same 27th day of June aforesaid, was, with the consent of one Jacob Henderson, clerk (his master), sold by the court aforesaid, for one year and nine months, to one John Middleton, planter, to discharge the fees of the conviction aforesaid. But the said Henry Downs, the sitting member, denied before the committee that he was the same Henry Downs mentioned in the said record. But it appeared to the committee from the testimony of several gentlemen, members of this house, that the said Henry Downs, the sitting member, had lately confessed himself to be the same Henry Downs mentioned in the record aforesaid. Thereupon, upon the whole, the committee had come to several resolutions, which he read in his place and afterwards delivered in at the table, where the same were read.
"And the said Mr. Henry Downs was heard in his place, and withdrew.
“Then the resolutions of the said committee were again read, and agreed to by the House nemine contradicente, as follows:
“Resolved, That the said Henry Downs having been convicted of felony and theft, and punished, as aforesaid, is unworthy to sit as a member in this house.
'Resolved, That the said Henry Downs, for the causes aforesaid, be expelled this house.
'Resolved, That the said Henry Downs be disabled to sit and vote as a member of this house during this present general assembly.'
"Mr. Downs was thereupon expelled the house."
It will be noted that the felony complained of was committed 21 years before Downs was elected, and that there was then no constitution of Virginia giving the right to the house of burgesses to judge of the qualifications of its members. Such right was assumed by the house to be an inherent power of legislative bodies.
V. GROWTH AND DEVELOPMENT OF POWER OF “JUDGING QUALIFICA
1. Beginnings of right in Elizabeth's reign.
(a) Statement of facts and crux and chronology of contest.
Vanishing Rights of the States. Hon. James M. Beck, who is counsel for Senator-elect Vare, of Pennsylvania, in his book The Vanishing Rights of the States discusses at great length the case of John Wilkes, which arose during the reign of George III, and says:
The Middlesex election was the great constitutional landmark of the eighteenth century. It determined for all time the right of Englishmen to be represented in Parliament by members of their own choice.
A study of the history of those times and an examination of all of the facts involved in the Wilkes case makes it plain that Mr. Beck's statement is a gross exaggeration. There are many histories of English constitutional government that place very little stress upon this case; Macaulay, for example, barely mentions it. It is true, undoubtedly, that it was an important case and did have some effect upon American constitutional law and the attitude of the Colonies toward the King, but saying that it was the great constitutional landmark of the eighteenth century is to exaggerate the case out of all proportion. The whole trend of Mr. Beck's discussion of the case is that it was a death struggle between the electorate of Middlesex as such and Parliament as such; that it was a titanic struggle to determine whether the electorate should have a free and unlimited right to choose a member of the House of Commons and whether the house had any right at all to pass upon the qualifications of its members; that the contest presented a plain constitutional-question, which was settled for all time in favor of the electorate as against the right of Parliament to pass upon the qualifications of its members. I contend that the conclusions drawn by Mr. Beck from this case are exaggerated and unwarranted.
In the first place, Mr. Beck permits his readers to believe that the Wilkes case was the first instance in the history of the House of Commons where the house had passed upon the qualifications of its members. He fails—and his failure arouses one's suspicion as to his impartiality—to advise the readers of his little book that there were precedents for the action of the House in expelling and rejecting Wilkes. Nowhere does Mr. Beck even intimate that the house had ever before attempted to pass upon the qualifications of its members, but the inference is left that the Wilkes case was the first case of it kind. Let us see what the facts are.
In May's Constitutional History of England, volumas 1, page 374, in discussing the Wilkes case, the author says:
The election (of Wilkes) was declared void, and there were precedents for this course. Citing May's Law of Parliament, fourth edition, page 59; Townsend Mem. II, 100; Cavendish Deb. I, 352.
Mr. Beck quotes from the argument of George Grenville and as an appendix to his book publishes the full text of the speech, but nowhere does he mention Lord Mansfield, who argued just as strenuously and ably to support the rights of the house to pass upon the qualifications of its members, nor any precedents cited by Lord Mansfield. Grenville was overwhelmingly defeated. To quote
. Grenville is like quoting from a dissenting opinion or a minority report.
In order to understand the Wilkes case and its influence, if any, upon our Constitution in this regard it is necessary to take a brief survey of English constitutional government and the status of Parliament prior to 1763.
Originally Parliament was but a creature of the King; gradually Parliament grew in power, its strength and influence being more or less dependent upon the character, personality, and power of the King and his ministers. At an early date the House of Commons assumed the right to judge of the elections and returns of its members. Taylor, in his Origin and Growth of the English Constitution, Volume II, page 202, says:
Among the parliamentary privileges belonging either to the house as a whole, or to its individual members, which were thus asserted during the reign of Elizabeth should be noted here: (1) The right of the house to determine contested elections.
And at page 530, volume 1, he says:
In the reign of Elizabeth this right was for the first time distinctly asserted in a case in which the lower house ventured to examine into the circumstances attending an irregular election that had occurred in the county of Norfolk.
Such was the beginning of the exercise of the right of the legislative body to determine election contests. A study of the growth of this right is instructive, particularly in view of the fact that our Constitutional Convention used the structure of Parliament as a guide in such matters.