This section is from the book "The Constitutional Law Of The United States", by Westel Woodbury Willoughby. Also available from Amazon: Constitutional Law.
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.8 It thus happens that though neither House may formally impose qualifications additional to those mentioned in the Constitution, or waive those that are 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 disqualifications, Roberts should be admitted to membership, and then, if the House should so see fit, he might be expelled by a two-thirds vote.9 For the right to expel, it is admitted, is absolute, and may be exercised for any reason which the House thinks adequate.:10 The House, however, by a large majority voted to exclude Roberts.11
5 Art. I, Sec. 6, CI. 2.
6 Congress has removed this disability from all, or practically all, persons suffering from them because of participation in the Civil War. Delegates from the Territories who are given the right to sit hut not to vote in the House of Representatives have their qualifications and terms of office determined by Congress.
7 Foster. Commentaries, § G2.
8 "Each II use shall he the judge of the elections, returns and qualifications of its own members." Art. I, Sec. IV, Cl. 1.
It is plain that no State may add qualifications to those required by the Constitution of members of Congress. Thus in 1856, 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.12 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 one receiving the next highest vote, to his seat.13
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.14
9 "Each House may . . . with the concurrence of two-thirds, expel a member." Art. I, Sec. V, CI. 2.
Win Patterson's case (Hinds, § 1276) it was held that a resolution of expulsion would not be entertained after the term of the accused Senator had expired. In Whittemore's case it was held that one who, to escape expulsion, had resigned, would, upon re-election, be refused his seat.
11 For a full statement of the arguments pro and contra in this important case see House Rpt. 85, 56th Cong., 1st Sess. See also Hinds, Precedents of the House of Representatives, Vol. I.
12Hinds, op. cit. § 415; Story, Commentaries, §§ 623-629.
13 Hinds, § 424.
14Hinds, § 424.
In contested election cases each House may examine witnesses, compel testimony and the production of papers, and punish witnesses for contempt.15 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.16
In the case of In Re Loney17 it was held that a notary public or other state officer designated by Congress to take depositions in cases of contested election of members of the House of Representatives of the United States performs this function under the authority\of Congress and not under that of the State; and that perjury alleged to have been committed before such notary or other state official is exclusively cognizable in the federal courts. In its opinion the court say: "Any one of the officers designated by Congress to take the depositions of such witnesses (whether he is appointed by the United States . . . or by the State . . . ) performs this function, not under any authority derived from the State, but solely under the authority conferred upon him by Congress, and in a matter concerning the government of the United States. . . . There are cases (the most familiar of which are those of making and uttering counterfeit money) in which the same act may be a violation of the laws of the State, as well as of the laws of the United States, and may be punishable by the judiciary of either [citing cases]. But the power of punishing a witness for testifying falsely in a judicial proceeding belongs peculiarly to the government in whose tribunals that proceeding is had. It is essential to the impartial and efficient administration of justice in the tribunals of the nation that witnesses should be able to testify freely before them unrestrained by legislation of the State, or by fear of punishment in the state courts. ... A witness who gives his testimony, pursuant to the Constitution and laws of the United States, in a case pending in a court or other judicial tribunal of the United States, whether he testifies in the presence of that tribunal, or before any magistrate or officer (either of the Nation or of the State) designated by act of Congress for the purpose, is accountable for the truth of his testimony to the United States only; and perjury committed in so testifying is an offense against the public justice of the United States, and within the exclusive jurisdiction of the courts of the United States, and cannot therefore be punished in the courts of Virginia."18
15Kilbourn v. Thompson, 103 U. S. 168; 26 L. ed. 377.
16 Anderson v. Dunn, 6 Wh. 204; 5 L. ed. 242.
17 134 U. S. 372; 10 Sup. Ct. Rep. 384; 33 L. ed. 049.