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Page:Harvard Law Review Volume 2.djvu/390

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The remedies are usually statutory, but a contest as to the seat of a member of a legislature is generally controlled by the rules and orders of the legislature itself. At common law the remedy is by quo warranto, filed on behalf of the State by the public prosecutor, to inquire into and correct the alleged usurpation of a public office. Originally the proceeding was criminal, but it is now regarded as practically civil. ^

The two houses of Congress, however, are the judges of the qualifications of their own members.^ No particular rule seems to have been adopted by the Senate, but each case has been in- vestigated in the manner which appeared best suited to it. The practice is to refer to a committee.* Few questions of fact arise in senatorial contests, because senators are chosen by State leg- islatures, which decide for themselves the qualifications of their members, into whose election the United States has no power to inquire.

The House of Representatives for a long time had no settled method of contesting elections. A few early laws were passed and expired, and from 1804 to 1850 there was practically no law on the subject. Procedure was in great confusion.* It should be said, however, that the matter is hardly a subject for legislation, because Congress is not bound by any ^aw it may pass. But, in 1 85 1, legislation was again attempted, and various acts have since been passed, which partially provide a procedure in cases of contested elections. Notice must be given to the seated member, by the contestant, within thirty days after the election has been determined by the proper authority, specifying particularly the grounds of the contest.^ Thirty days are then given for an answer to be served on the contestant.^ Ninety days^ are given to the parties for the taking of testimony before certain prescribed officers, which, after it is taken, is sealed up and sent to the

» McCrary, Elections (3d cd.), §§ 389, 390. •Const., Art. I., sec. 5.

•«*The Mode of Procedure in Cases of Contested Elections,'* by H. L. Dawes, 2 Am. J Soc. Scl 56, 58.

  • The New Jersey contested election in 1839 almost produced a state of anarchy in the


  • Rev. St., § 105.
  • Rev. St., § 106.

7 The contesunt has forty, the seated member forty, and the contestant the remaining ten for rebuttal.