Statutory Representation

Continental expansion forced Congress, particularly the House, to grapple with important representational questions. These issues were addressed in a patchwork manner. Like the territories they represented, which existed at the fringes of the United States’ growing continental empire, 19th-century Delegates operated at the periphery of the House’s power structure. Their influence, such as it was, depended upon statutes fixed by Congress and, just as significantly, on the sometimes-capricious nature of House Rules. This system had profound consequences for New Mexicans’ representation in Congress.

From the very beginning, Congress has contended with the Constitution’s silence on the issue of representation for U.S. territories. Over decades of improvisation, a system of “statutory representation” emerged that consists of laws crafted by Congress, complemented by evolving procedural rules in the House, giving territories a limited voice in the national legislature through the office of Territorial Delegate and, later, the Office of the Resident Commissioner.47

Jonathan Dayton of New Jersey/tiles/non-collection/p/part1_14_dayton_jonathan_hc.xml Collection of the U.S. House of Representatives
About this object
Jonathan Dayton of New Jersey served in colonial and federal legislatures throughout his distinguished political career. A Revolutionary War veteran, Dayton also signed the U.S. Constitution in 1787 and served as Speaker of the House (1795–1799).
Territorial representation predated the First Federal Congress, which convened under the Constitution in 1789. Operating under the Articles of Confederation, the Continental Congress enacted the Northwest Ordinance of 1787 to create a government for the territory northwest of the Ohio River. That legislation provided for a Territorial Delegate, who was entitled to a seat in Congress but not to a vote on bills. From the outset, Delegates were seen as advocates who could foster awareness of and general discussion about territorial interests and perhaps even shape legislation during its formative stages, but also as individuals who were not fully empowered as legislators because they could not vote on final bills. After the Constitution was adopted, the First Federal Congress reenacted the Northwest Ordinance in 1789, providing for a Delegate pending the establishment of a territorial legislature to elect the Delegate. A year later, Congress granted the Territory South of the River Ohio, which would become Tennessee, the privileges provided by the Northwest Ordinance. That territory sent the first Delegate, James White, to the federal capital in Philadelphia. White, who had represented North Carolina in the Continental Congress and who was the grandfather of future chief justice of the U.S. Supreme Court Edward Douglass White, presented his credentials to the House on November 11, 1794.

The concept envisioned by the unicameral Continental Congress now stood embodied in flesh and blood before a bicameral U.S. Congress. Representatives of the Third Congress (1793–1795) were understandably perplexed, and a vigorous discussion ensued on the House Floor. Was Delegate White a Member of the House? Or, did he belong in the Senate, since he—like every Senator— had been elected by the territorial/state legislature? Was he entitled to a seat in both chambers? If he was not fully a Member of the House, would he be given franking privileges? Could he be present when the House went into closed session? How would he be compensated, and should he be required to take the oath of office?48

Some, like Representative Zephaniah Swift of Connecticut, believed it was bad precedent to admit a person for whom “the Constitution has made no provision.” Swift warned, “If we can admit a Delegate to Congress … we may with equal propriety admit a stranger from any quarter of the world.”49William L. Smith of South Carolina believed that White was “no more than an Envoy to Congress … an Officer deputed by the people” of the territory. Jonathan Dayton of New Jersey, who chaired the Committee on Elections and would assume the Speakership in the following Congress, weighed in with a central conclusion: “Call him what you will, a member, a Delegate, or, if you please, a nondescript.… He is not a member. He cannot vote, which is the essential part.” While conceding the right of debate to the Delegate, Dayton noted that the scope of the latter’s power and participation was similar to that of “a printer [who] may be said to argue and influence, when he comes to this House, takes notes, and prints them in the newspapers.”50 The House seated White (he served for two years until Tennessee achieved statehood) and voted against requiring him to take the oath of office. Several months later, White was appointed to a select committee to study methods to promulgate U.S. laws more efficiently.51

Subsequent Delegates followed White’s example, serving solely in the House, though more than two decades elapsed before the House established some clear definitions of Delegates’ rights and responsibilities. Franking privileges were allowed, and eventually Delegates were required to take the oath of office. Starting with White, service on select committees became routine; occasionally Delegates chaired these select panels.52 Moreover, at least one Delegate, William Henry Harrison of the Northwest Territory, served as a conferee to negotiate disputed legislation with the Senate.53 Finally, in March 1817, the 14th Congress (1815–1817) passed a law stating that Delegates were to be seated exclusively in the House and elected to two-year terms to coincide with Representatives. Borrowing from the language of the Northwest Ordinance of 1787, the law also provided a fundamental guidepost that shaped the careers of Territorial Delegates for more than 150 years: “Each of the said delegates shall have a seat with a right of debating but not voting.”54 As will be discussed in the legislative interests section of this essay, the powers of a Delegate to serve on a committee also evolved slowly during the course of the 19th century and remained circumscribed, even after the rules were modified.

In the latter 19th century, because of their numbers (10 at their peak in the 42nd and 43rd Congress, 1871–1875), Delegates gained influence in Congress and in the city of Washington. Many of New Mexico’s Hispano Delegates served during the high-water mark of territorial representation in the House in the 1870s and 1880s. “The territorial delegate increased in stature appreciably between 1861 and 1890,” explains historian Earl Pomeroy. “Without the formal powers of a congressman, he acquired more of a congressman’s influence and general functions. He was disseminator of information, lobbyist, agent of territorial officers, of the territorial legislature, and of his constituency, self-constituted dispenser of patronage. He interceded at times in almost every process of control over the territories, and generally no one challenged his right to intercede.”55

In a system that contemplated Delegates as ministers without portfolio rather than traditional legislators, their power on Capitol Hill derived almost exclusively from their relationships and their access to leadership. Voting Members might exploit their seniority status, the collective power of their respective caucuses, or institutional rules to achieve their legislative goals. But for Delegates what mattered most was their position within the institution—their proximity to the Speaker, who held unfettered committee appointment powers in the late 19th century; to the chairmen of important committees; to a Representative, Senator, or even another Delegate who could represent specialized territorial interests before a standing committee—and their alignment with influential regional blocs.

José Francisco Chaves of New Mexico/tiles/non-collection/p/part1_15_chaves_jose_francisco_book.xml Helen Haines, History of New Mexico from the Spanish Conquest to the Present Time 1530–1890 with Portraits and Biographical Sketches of its Prominent People (New York, NY: New Mexico Historical Publishing Company, 1891) An accomplished Civil War veteran, Delegate José Francisco Chaves of New Mexico served three terms in the U.S. House. After his congressional service, Chaves became an important political figure in the territory for the remainder of the nineteenth century.

In the process of representing constituencies who were culturally dissimilar from the majority-Anglo U.S. population, Hispanic-American Delegates amplified the diplomatist characteristics of their office. As the highest-ranking elected territorial officials, Delegates were intercessors between the frontier government and the federal legislature as well as between their constituencies and Cabinet-level officials. Joseph Hernández of Florida lobbied Secretary of State John Quincy Adams to help facilitate Spanish land grant verification; similarly, he sought to enlist the help of Secretary of War John C. Calhoun to support road construction. In borderland regions, where several distinct cultural groups often competed for power, the Delegates served as facilitators. For instance, Hernández was instrumental in brokering the Treaty of Moultrie Creek between the James Monroe administration and the Seminole Indians. New Mexican Delegates Francisco Perea and José Francisco Chaves lobbied the Secretary of State and the President to appoint or remove territorial officials. Their motives frequently derived from competing impulses such as ensuring the efficiency of the territorial government or promoting their political allies—often by curtailing the careers of their political enemies.

In a less tangible sense, Hispanic-American Members of this era were cultural ambassadors. The office of Delegate provided a two-way circuit for cultural transmission that involved sending the territory federal policies and the appointees to implement them, and also receiving the representatives of a new, majority-Spanish heritage constituency. “Sir, I claim to be the representative of a people who have peculiar demands upon your justice and magnanimity,” said Delegate Gallegos, addressing the Speaker and the House by means of a translated speech. “They are in their origins, alien to your institutions, your laws, your customs, your glorious history, and even strangers to your language.… I am, and have ever been, one of that very people.”56

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Footnotes

47Abraham Holtzman, “Empire and Representation: The U.S. Congress,” Legislative Studies Quarterly 11, no. 2 (May 1986): 249–273. A statistically small but numerically consequential group, statutory representatives have constituted over 1 percent of all House Members. Since 1789, 175 individuals have represented territories or insular possessions in the House (143 Delegates and 32 Resident Commissioners from Puerto Rico and the Philippines). This figure is based on data from the online Biographical Directory of the United States Congress, http://bioguide.congress.gov/ (accessed 3 February 2012). For the development of the office of Delegate from a procedural perspective, see Chapter 43 of Hinds’ Precedents of the House of Representatives, vol. 2 (Washington, D.C.: Government Printing Office, 1907): 861–868.

48Annals of Congress, 3rd Cong., 2nd sess. (17–18 November 1794): 884–891.

49Ibid, 884.

50Ibid., emphasis in original.

51See Betsy Palmer, “Delegates to the U.S. Congress: History and Current Status,” Report R40555, Congressional Research Service, Library of Congress, Washington, D.C.: 1–12; see especially, p. 7.

52See, for example, Hinds’ Precedents, for information on Delegate George Poindexter of the Mississippi Territory, who appears to have chaired at least two select committees: sections 1299 and 1303, pp. 865–866.

53Palmer, “Delegates to the U.S. Congress: History and Current Status”: 7.

54Statutes at Large, Act of March 3, 1817, ch. 42, 3 Stat. 363. Hinds’ Precedents notes that the language was replicated “verbatim” from the Northwest Ordinance Act of 1787. See section 1290, p. 861.

55Earl S. Pomeroy, The Territories and the United States (Seattle: University of Washington Press, 1969; reprint of 1947 edition): 80.

56Congressional Globe, House, 34th Cong., 1st sess. (23 July 1856): 1730.