On November 14, 1794, the House resolved into the Committee of the Whole House to consider the report of an ad hoc committee led by Representative Baldwin. The Baldwin committee had been tasked with considering whether to admit to the House one James White, who had presented his credentials as “Representative of the Territory of the United States south of the river Ohio, in the Congress of the United States.” 4 Annals of Cong. 873. White’s claim to admission was founded indirectly on the Northwest Ordinance, which had promised that the legislature of the Northwest Territory could send a delegate to Congress “with the right of debating, but not of voting.”
Because the Northwest Ordinance preceded the adoption of the Constitution, it refers to “Congress” (meaning the Congress under the Articles of Confederation), rather than the House or Senate. Following the adoption of the Constitution, Congress passed a law providing the Southwest Territory with the same “privileges, benefits, and advantages” as provided in the Northwest Ordinance, but not specifying whether the right to send a delegate to Congress referred to the House, the Senate or both.
The Baldwin committee recommended the adoption of a resolution “That James White be admitted to a seat in this House as a Delegate from the Territory of the United States South of the river Ohio, with a right of debating, but not of voting.” 4 Annals of Cong. 889.
Representative Swift objected to this recommendation:
The Constitution has made no provision for such a member as this person is intended to be. If we can admit a Delegate to Congress or a member of the House of Representatives, we may with equal propriety admit a stranger from any quarter of the world. We may as well admit the gallery, or a foreign Minister, as the person from the Territory Southwest of the Ohio.
4 Annals of Cong. 884.
Swift’s objection drew this response from Representative Smith of South Carolina, who said that he
had no difficulty in declaring that the gentleman was fully qualified to take a seat in the House, by the terms of an express compact with the people. He was convinced that the Representatives have a right to admit those whom they regard as lawfully entitled to a seat in the House, for the purpose of debating. They may admit the Secretary of State, if they consider it as expedient. If this gentleman had applied to the Senate, that body also were authorized to admit him, if they thought it lawful. . . . He does not claim a right of voting, but of speaking only; and when the affairs of the Southwest Territory were agitated in the Senate, he had a right, in [Smith’s] judgment, to speak and debate in that House also.
Id. at 885.
At different points in this passage Smith states (1) White is “fully qualified” to take a seat in the House by virtue of “an express compact with the people;” (2) the House has the “right” to admit whomever it believes “lawfully entitled,” including apparently the Secretary of State, to sit in the House for purposes of debating; (3) the Senate likewise was authorized to admit White is it thought it “lawful” to do so; and (4) White had the “right,” in Smith’s opinion, to speak and debate in both the House and Senate, at least when the affairs of the Southwest Territory were discussed.
Smith’s statement touches on many of the issues discussed in the ensuing debate. Did the House have either the authority or the obligation to admit White? Did it have the authority to admit anyone for purposes of debating, or was White’s claim dependent on the fact that it was guaranteed by legislation and “an express compact with the people”? If the latter, was the decision one to be made by the House and Senate jointly (since the Northwest Ordinance had promised a seat in the unicameral “Congress” of the Articles of Confederation) or by each house individually?
The House’s Decision
The debate on these issues was somewhat disjointed (as these things often are), but the result seems clear in two respects. First, a “very large majority” voted for the Baldwin resolution and did not think there was any need to consult the Senate before making a decision. Id. at 888.
Second, the key argument on which supporters of the resolution rested was that White would be admitted for purposes of debating only. See David P. Currie, The Constitution in Congress: The Federalist Period 1789-1801 202-03 (1997). They stressed that the House had the right to invite anyone, including cabinet officers or even people in the gallery, to participate in debate. See 4 Annals of Cong. 885 (Rep. Smith); id. (Rep. Giles); id. at 886 (Rep. Dayton). Swift protested that allowing a non-member to speak or debate on a particular occasion was a “quite different thing” that allowing him “a permanent seat among the members” for “the purpose of regularly debating,” but Baldwin, while acknowledging the distinction, maintained that the non-voting delegate’s situation was still “extremely short of the situation of a member of Congress.” Id. at 887-88.
While the House accepted White’s credentials, a majority felt it necessary to underscore the fact that his status was “extremely short” of a member. Article VI of the Constitution requires Representatives to take an oath, but Representative Madison explained that because White was “not a member of Congress, [he] cannot be directed to take an oath, unless he chooses to do so voluntarily.” Id. at 889. Representatives Smith and Dayton expressed the view that it would be improper for White to take an oath even if he wanted to. Id. at 889-90. Representative Boudinot, who had opposed seating White in the first place, remarked it “a strange kind of thing to have a gentleman here arguing, who was not bound by an oath,” but the House voted 42-32 not to have White take the oath. Id. at 890.
As Professor Currie explains, the House’s debate reflected the consensus that voting “was at the core of the member’s office;” thus, “anyone who can vote on the floor of Congress is pretty clearly a ‘member.’” Currie, supra, at 202. Merely speaking or debating, on the other hand, was not considered a function so central (or unique) to being a member that it could only be exercised by “Members chosen every second Year by the People of the several States,” as prescribed by Article I. See id.
The key point is that the House was merely extending privileges to White that it believed it could extend to any outsider. As the debate over the oath highlights, the House did not consider that White had a special quasi-constitutional status by virtue of being a delegate. The line between voting and debating marked the division between member and non-member.
Professor Currie points out that this debate, which was not cited in the D.C. Circuit’s opinion in Michel v. Anderson, 14 F.3d 623 (D.C. Cir. 1994), does not support the result reached by the court in that case. Currie, supra, at 203 n.237. In upholding the rule allowing delegates to vote in the Committee of the Whole, the court relied in significant part on the fact that the early Congresses had seated territorial delegates and allowed them to serve on committees. But “no voting rights followed from the eighteenth-century experience; the prevailing argument in 1794 was that all the Delegate could do was speak—a right that could be afforded to anyone.” Id.