Vice-President, or hold an office, civil or military, under the United States, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House remove such disability."

It will be observed that habitancy and not mere residency in a State is required. Habitancy implies greater permanency than does residence. "A man's residence is often a legal conclusion from statements showing his intention. Habitancy is a physical fact which may be proved by eyewitnesses.'

1 2

The constitutional provision is that habitancy shall exist at the time of election. It is thus legally possible for a member of Congress, after election, to become an inhabitant of another State without thereby forfeiting his seat.

Qualifications determined by Congress

Though essentially a judicial function the conclusive determination as to whether the constitutional qualifications for membership have been met is, by the Constitution, placed in the hands of each of the two Houses of Congress. It thus happens that, though neither House may formally impose qualifications additional to those mentioned in the Constitution, or waive those that are

1 Congress has removed this disability from all, or practically all persons suffering from it because of participation in the Civil War. Delegates from the Territories who are given the right to sit and speak but not to vote in the House of Representatives have their qualifications and terms of office determined by the Congress. Foster, Commentaries, § 62.

2

mentioned, each may in practice do either of these things. For example, in 1900, the House excluded Brigham H. Roberts of Utah because of various charges brought against him, none of which, however, alleged a constitutional disqualification. In this case it was strenuously argued that, having the necessary constitutional qualifications, Roberts should be admitted to membership, and then if the House should see fit, he might be expelled by a twothirds vote. For the right to expel, it is admitted, is absolute, and may be exercised for any reason which the House thinks adequate. The House, however, by a large majority, voted to exclude Roberts.1

3

It is plain that no State may add qualifications to those required by the Constitution of members of Congress. Thus in 1865, the governor of a State having refused to issue credentials to the rival claimants, because they were disqualified under provisions of the State Constitution to membership in the House, the House seated the one shown prima facie by official statement to have a majority of votes.5 Similar action was taken by the Senate the same year.

The disqualification of a member of Congress, it has been held, does not entitle the person receiving the next highest vote, to his seat.6

Members who have already taken the oath may, it has been held, be unseated by a majority vote. That is to say, disqualification being shown the process of expulsion, which requires a two-thirds vote, is not needed.7

3 Const., Art. I, § 5, cl. 2.

4 For a full statement of the arguments pro and contra in this important case, see House Rpt. 85, 56th Congress, 1st Session. Also Hinds Precedents of the House of Representatives, Vol. I.

5 Hinds, § 415. Story's Commentaries, §§ 623–629.

⚫ Hinds, § 424.

7 Hinds, § 424.

In contested election cases, each House may examine witnesses, compel testimony and the production of papers, and punish witnesses for contempt.8 Imprisonment for contempt must, however, cease with the adjournment of the Congress which orders it, for with the dissolution of that body its authority necessarily ceases."

Disqualification of congressmen to hold Federal office

The second clause of § 6 of Article I of the Constitution provides that: "No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time, and no person holding any office under the United States shall be a member of either House during his continuance in office." In pursuance of this provision members of Congress have had their seats declared vacant for accepting commissions as officers of the volunteer and regular army forces of the United States. Visitors to academies, directors and trustees of public Federal institutions appointed by law, are not held disqualified. 1o

8 Kilbourn v. Thompson, 103 U. S. 168; 26 L. ed. 377.

9 Anderson v. Dunn, 6 Wh. 204; 5 L. ed. 242. For historical accounts of the manner in which contested elections in Congress have been considered, see Journal of Social Science, 1870, p. 56; and Political Science Quarterly, XX, 421. In the case of Re Loney, 134 U. S. 372; 10 Sup. Ct. Rep. 384; 33 L. ed. 949, it was held that a notary public or other State officer designated by Congress to take depositions in contested election cases acts under authority of Congress and that perjury committed before him is an offense exclusively cognizable in the Federal courts.

10 House Rpt. 2205, 55th Cong. 3d Sess. In United States v. Hartwell, 6 Wall. 385; 18 L. ed. 830, it is declared that "an office is a public station or employment conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties."

The House has also held that a contractor under the Federal Government is not constitutionally disqualified as a member.

A State office does not disqualify for membership. Thus, for example, Senator La Follette held the office of Governor of Wisconsin until January, 1906, although the Senate, after his election to that body, met in extra session the preceding March. Senator La Follette did not, however, appear in the Senate or take the oath until January 4, 1906.

Members-elect, it has been held, may defer until the meeting of Congress their choice between their seats and incompatible offices to which they may have been elected or appointed.11

The seat of a member who has accepted an incompatible office may be declared vacant by a majority vote.12

Privileges of members of Congress

The first clause of the Sixth Section of Article I of the Constitution provides: "The Senators and Representatives... shall in all cases except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same, and for any speech or debate in either house, they shall not be questioned in any other place."

The exemption from arrest thus given is now of little importance, as arrest of the person is now almost never authorized except for crimes which fall within the classes exempt from the privilege. The words "treason, felony and breach of the peace" have been construed to mean all indictable crimes. 13

11 Hinds, § 492.

12 Hinds, § 504.

13 Williamson v. United States, 207 U. S. 425; 28 Sup. Ct. Rep.

As regards the freedom of the members of Congress from prosecution for words spoken in either House, no comment is needed, except to observe that this privilege does not extend to the outside publication by a member of libelous matter spoken in Congress. As Story observes: "No man ought to have a right to defame others under color of a performance of the duties of his office. And if he does so in the actual discharge of his duties in Congress, that furnishes no reason why he should be enabled through the medium of the press to destroy the reputation and invade the repose of other citizens." 14

It may be further observed that the constitutional immunity extends to witnesses appearing before committees of Congress, and, probably, to petitions, and other addresses to that body.15

163; 52 L. ed. 278. Also, Hinds,, § 2673. In Kilbourn v. Thompson, 103 U. S. 168; 26 L. ed. 377, is considered the personal liability of the individual members of Congress who had participated in a commitment for contempt which commitment was beyond the constitutional power of Congress.

14 Commentaries, § 863.

15 See the excellent paper by Mr. Van Vechten Veeder entitled "Absolute Immunity in Defamation: Legislative and Executive Proceedings," in the Columbia Law Review, Feb., 1910.