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an election contest before a judicial tribunal, conducted in accordance with the usual forensic methods, would practically lead to great public injury. It is, therefore, important that the power to render a speedy, final and summary decision, should be invested in the body which is immediately concerned in securing its own efficient action.
It can hardly be contended that this body, which, by its single act, may perform the function of originating changes in the organic law, was not intended by the People to have all the powers of self-protection and independence deemed necessary for the Legislature, which is permitted to exercise that high perrogative only through the concurrence of two successive senates and assemblies. While it is true that the power of making such determination is by article 3, section 10 of the Constitution, expressly conferred upon the Senate and Assembly, and that by the Constitution of the United States similar powers are also vested in both houses of Congress; yet, it is well settled that such provisions are only declaratory, and that even in the absence of such express authority, the inherent power to act as the judge of the qualifications and elections of its members exists in every deliberative assembly, emanating directly from the people, even though it involves the exercise of judicial power. An examination of the authorities on the subject may be useful. May, in his work on the "Law of Parliament" (8th ed., p. 56), says:
"Another important power peculiar to the Commons, is that of determining all matters touching the election of their own members. This right has been regularly claimed and exercised since the reign of Queen Elizabeth, and probably in earlier times, although such matters have been ordinarily determined in Chancery. Their exclusive right to determine the legality of the returns and the conduct of returning officers in making them, was fully recognized in the case of Barnardiston v. Soane, by the Court of Exchequer Chamber in 1674 (6 Howell, St., Tr., 1092), by the House of Lords in 1689 (ib., 1119), and also by the courts, in the cases of Onslow in 1680 (2 Vent., 37), and of Prideaux v. Morris in 1702 (2 Salk., 502; 1 Lutw., 82; 7 Mod., 13)."
Perhaps the most instructive account of the possession and exercise of this parliamentary power is that given by Hallam, who, while speaking of the reign of Elizabeth, says, in his Constitutional History of England, vol. 1, page 273: "The Commons asserted in this reign, perhaps for the first time, another
and most important privilege, of determining all matters relative to their own elections."
"Difficulties of this nature, had, in former times, been decided in Chancery, from which the writ issued, and into which the return was made. Whether no cases of interference on the part of the house had occurred, it is impossible to pronounce, on account of the unsatisfactory state of the rolls and journals of Parliament under Edward IV, Henry VII and Henry VIII. One remarkable entry may be found, however, in the reign of Mary, when a committee is appointed "to inquire if Alexander Nowell, prebendary of Westminster, may be of the house, and it is declared by them next day that an Alexander Nowell, being prebendary in Westminster, and thereby having a voice in the Convocation House, cannot be a member of this house; and so agreed by the house and the Queen's writ to be directed for another burgess in his place." (Journals, I, Mary, p. 27). Nothing further appears on the record bill.
In 1586 the house appointed a committee to examine the state and circumstances of the returns for the County of Norfolk. The fact was that the Chancellor had issued a second writ for this county on the ground of some irregulartiy in the first return, and a different person had been elected. Some notice having been taken of this matter in the Commons, the Speaker received orders, signifying to Her Majesty's displeasure that the house had been troubled with a thing impertinent for them to deal with, and only belonging to the charge and office of the Lord Chancellor, whom she had appointed to confer with the judges about the return for the County of Norfolk, and to act therein according to justice and right. The house, in spite of this peremptory inhibition, proceeded to nominate a committee to examine into and report the circumstances of these returns, who reported the whole case, with their opinion that those elected on the first writ should take their seats; declaring, further, that they understood the Chancellor and some of the judges to be of the same opinion, but that they had not thought it proper to inquire of the Chancellor what he had done, because they thought it prejudicial to the privilege of the house to have the same determined by others than such as were members thereof. And though they thought very reverently of the said Lord Chancellor and judges, and knew them to be competent judges in their places, yet in this case they took them not for judges in Parliament in this house, and thereupon required that
the members, if it were so thought good, might take their oaths and be allowed of by force of the first writ, as allowed by the censure of the house, and not as allowed of by the said Lord Chancellor and judges; which was agreed unto by the whole house. This judicial trial over their elections was not the last. A committee was appointed in the session of 1589 to examine into sundry abuses of returns, among which is enumerated that some are returns for new places, and several instances of the house's deciding on elections occur in subsequent Parliaments."
Mr. Cushing, in his work on the Law and Practice of Legislative Assemblies, chapter 6, section 1, p. 146, says:
"The present Constitution of the House of Commons is, to a considerable extent the result of a series of struggles between it, on the one hand, and the Sovereign or Lords, or both on the other. One of the earliest of these conflicts and one of the most interesting, is that which terminated in the establishment of the right of the Commons, to be the exclusive judges of the returns, elections and qualifications of their own members. This right, after having been claimed and exercised, at one time by the King and Council, at another by the House of Lords, and again, by the Lord Chancellor, was declared by a resolution of the Commons, in 1624, and has ever since been admitted to belong exclusively to the house itself, as its ancient natual and undoubted privilege.' (Glanville, LXXXIII, 60.)
"This power is so essential to the free election and independent existence of a legisative assembly that it may be regarded as a necessary incident to every body of that description, which emanates directly from the people; it is also, out of abundant caution, conferred upon or guaranteed to most of the legislative assemblies of the United States, by express constitutional provisions."
Mr. Justice Story, in his work on the Constitution, section 833, says:
"It is obvious that a power must be lodged somewhere to judge of the elections, returns and qualifications of the members of each house composing the Legislature; for otherwise there could be no certainty as to who were legitimately chosen members, and any intruder or usurper might claim his seat, and thus trample upon the rights, privileges and liberties of the people. Indeed, elections would become, under such circumstances, a mere mockery, and legislation the exercise of sover
eignity by any self-constituted body. The only possible question on such a subject is as to the body in which such a power shall be lodged. If lodged in any other than the legislative body itself, its independence, its purity, and even its existence and action might be destroyed or put into imminent danger. No other body but itself can have the same motive to preserve and prepetuate these attributes; no other body can be so perpetually watchful to guard its own rights and privileges from infringement to purify and vindicate its own character, and to preserve the rights, and to sustain the free choice of its constituents. Accordingly, the power has always been lodged in the legisla tive body by the uniform practice of England and America."
In volume 1, page 235, of Kent's Commentaries, the author says:
"Each house is made the sole judge of the election and return and qualification of its members. The same power is vested in the British House of Commons, and in the Legislatures of the several States, and there is no other body known to the Constitution, to which such a power might be safely trusted. It is requisite to preserve a pure and genuine reputation, and to control the evils of irregular, corrupt and tumultuous elections; and as each house acts in those cases in a judicial character, its decisions, like the decisions of any other court of justice ought to be regulated by known principles of law, and strictly adhered to for the sake of uniformity and certainty."
Judge Cooley, in his Constitutional Limitations (6th ed., at p. 158), says:
"There are certain matters which each house determines for itself and in respect to which its decision is conclusive. It chooses its own officers, except where, by Constitution or statute other provision is made; it determines its own rules of proceeding; it decides upon the election and qualification of its own members. These powers it is obviously proper should rest with the body immediately interested, as essential to enable it to enter upon and proceed with its legislative functions without liability to interruption and confusion. To determine ques tions concerning contested seats, the house will exercise judicial power, but generally in accordance with a course of practice which has sprung from the precedents in similar cases, and no other authority is at liberty to interfere."
The powers asserted by the House of Commons were also recognized in the Colonial Assemblies, one of the first cases being that recorded in Smith's History of the Province of New York, page 223, published in 1776, where the author says:
"All those who opposed you were dislodged with the Governor; among those Mr. DeLancey was the most considerable for his wealth and popular influence. He was very rigid in his religious profession, one of the first builders, and by far the most generous benefactor of the French Church, and, therefore, left it with the utmost reluctance. Mr. Burnett, before this time, had considered him as an enemy, because he had opposed the prohibition of the French trade; and this led him into a step, which as it was a personal indignity, Mr. DeLancey could never recollect without resentment. This gentleman was returned for the City of New York in the room of a deceased member, at the meeting of the Assembly in 1725. When he offered himself for the oaths Mr. Burnett asked him how he became a subject of the Crown? He answered that he was denized in England, and His Excellency dismissed him, taking time to consider the matter. Mr. DeLancey then laid before the house an act of a Notary Public, certifying that he was named in a petition of denization, granted in the reign of James the Second-a patent of the same kind, under the great seal of this province, in 1686-and two certificates, one of his having taken the oath of allegiance according to an act passed here in 1683, and another of his serving in several former Assemblies. The Governor, in the meantime, consulted the chief justice and transmitted his opinion to the house, who resolved in favor of Mr. DeLancey.
"What Colonel Morris' opinion was, I have not been able to discover. Governor Burnett's conduct was thought to be unconstitutional, and an invasion of the rights of the Assembly, who claimed the exclusive privilege of determining the qualifications of their own members."
Vol. 5, Documents relating to N. Y. Colo
nial History, p. 761.
Vol. 8, Documents relating to N. Y. Colonial History, pp. 192, 319.
In 1 Hammond's Political History of New York, 62, the author says:
"By the Constitution, article 12, in connection with article 9, the Senate are constituted judges of their own members. The