[Hinds' Precedents, Volume 2]
[Chapter 42 - Punishment and Expulsion of Members]
[From the U.S. Government Publishing Office, www.gpo.gov]
PUNISHMENT AND EXPULSION OF MEMBERS.I
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1. Provisions of the Constitution and parliamentary law.
Sections 1236-1288.
2. Incidental questions as to censure and expulsion. Sections
1239-1243.\2\
3. Censure for conduct in debate, etc. Sections 1244-1259.
4. Expulsions for treasonable offenses. Sections 1260-1272.
5. Punishment for corrupt practices, crime, etc. Sections 1273-
1282.
6. Question as to punishment for offenses committed before
election.Sections 1283-1289.
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1236. The Constitution provides that the House may punish its Members
fordisorderly behavior, and expel a Member by a two-thirds vote.--The
Constitution in Article I, section 4, provides:
Each House may determine the rules of its proceedings, punish its
Membersfor disorderly behavior, and, with the concurrence of two-
thirds, expel a Member.
1237. Provisions of the parliamentary law in cases where charges
ariseagainst a Member from report of a committee on examination of
witnesses in the House.--In Jefferson's Manual \3\ certain principles
are laid downregarding the conduct of Members:
No Member may be present when a bill or any business concerning
himself isdebating; nor is any Member to speak to the merits of it till
he withdraws. (2 Hats., 219.) The rule is, that if a charge against a
Member arise out of a report of a committee or examination of witnesses
in the House, as the Memberknows from that to what points he is to
direct his exculpation, he may be heard to those points before any
question is moved or stated against him. He is then to be heard and
withdraw before any question is moved. But if thequestion itself is the
charge, as for breach of order or matter arising in the debate, then
the charge must be stated--that is, the question must be moved--himself
heard, and then to withdraw. (2 Hats., 121, 122.)
Where the private interests of a Member are concerned in a bill
orquestion he is to withdraw. And where such an interest has appeared
his voice has been disallowed, even after a division.\4\ In a case so
contrary, not only to the laws of decency, but to the fundamental
principle of the socialcompact, which denies to any man to be a judge
in his own cause, it is for the honor of the House that this rule of
immemorial observance should be strictly adhered to. (2 Hats., 119,
121; 6 Grey, 368.)
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\1\ See Chapter LII, sections 1641-1665, of this volume for
punishment ofMembers for contempt. A proposition to investigate conduct
of a Member or punish him is a question of privilege (Secs. 2648-2655
of Vol. III.)
\2\ Discussion of power to expel in Roberts's case (sec. 475, Vol.
1), in the Senate case of Smoot (sec. 481, Vol. I), and in relation to
Delegates (sec. 469, Vol. 1).
\3\ Jefferson's Manual is made the rule of the House in those
particulars where the rules are silent. (See sec. 6757, Vol. V of this
work.)
\4\ See sections 5949-5963 of Volume V of this work for
interpretation of the rule relating to personal interest.
Sec. 1238
1238. Proceedings when it is necessary to put a Member under arrest,
orwhen on public inquiry matter arises affecting a Member.--Section III
of Jefferson's Manual, on the subject of privilege, provides:
When it is found necessary for the public service to put a Member
underarrest, or when, on any public inquiry, matter comes out which may
lead to affect the person of a Member, it is the practice immediately
to acquaint theHouse, that they may know the reasons for such a
proceeding, and take suchsteps as they think proper. (2 Hats., 259.) Of
which see many examples. (ib., 256, 257, 258.) But the communication is
subsequent to the arrest. (1 Blackst., 167.)
1239. A Member having resigned, and expulsion therefore not being
proposed, the House adopted a resolution censuring his conduct.--On
February 28, 1870,\1\ the Speaker laid before the House a letter from
Mr. John T.Deweese, of North Carolina, informing the House through the
Speaker that hehad, by letter and telegraph, tendered his resignation
as a Member of the Forty-first Congress to the governor of North
Carolina. The letter was read and laid on the table.
On March 1, Mr. John A. Logan, of Illinois, from the Committee on
MilitaryAffairs, reported the following resolution:
Resolved, That John T. Deweese, late a Representative in Congress
from the Third Congressional district of North Carolina, did make an
appointment to the United States Naval Academy in violation of law, and
that such appointmentwas influenced by pecuniary considerations, and
that his conduct in thepremises has been such as to show him unworthy
of a seat in the House of Representatives, and is therefore condemned
as conduct unworthy of a Representative of the people.
Mr. Logan explained that the committee would have reported a
resolution ofexpulsion had not the House by its action in a previous
case decided against expelling a Member who had resigned.
The resolution was then agreed to, yeas 170, nays 0.
1240. A resolution of censure should not apply to more than one
Member.--On February 27, 1873,\7\ Mr. Fernando Wood, of New York,
proposed a resolution censuring several Members for alleged connection
with the Credit Mobilier.
Mr. Samuel J. Randall, of Pennsylvania, raised the question of order
thatit was not in order to include in a resolution of censure more than
one name.
The Speaker\3\ said:
Upon all questions affecting the personal or representative character
of aMember the gentleman from New York will himself see the propriety
of each Member standing absolutely on his own merits.\4\
1241. Instance of the presentation in the Senate of a petition for
theexpulsion of a Senator.--On Friday, February 9, 1906,\1\ in the
Senate the Vice President presented the petition of C. W. Post, a
citizen of the United States, praying for the expulsion from the United
States Senate of Thomas C. Platt, a Senator from the State of New York;
which was referred to the Committee on Privileges and Elections.
This petition was signed by ``C. W. Post'' before a notary public,
whosesignature and seal appear thereon.
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\1\ Second session Forty-first Congress, Journal, pp. 390, 396;
Globe, pp.1597, 1616, 1617.
\2\ Third session Forty-second Congress, Globe, p. 1835.
\3\ James G. Blaine, of Maine, Speaker.
\4\ See, however, instance wherein the Senate by one resolution
expelled several Senators. (Sec. 1266 of this chapter.)
\5\ First session Fifty-ninth Congress, Record, p. 2331.
Sec. 1242
1242. The Senate declined to investigate charges against the Vice
President, it being urged that he was subject to impeachment
proceedings only.--On January 28, 1873,\1\ the Vice-President (Mr.
Colfax) asked the Senate for a committee to investigate certain charges
made against his character. The proposition was opposed by Mr. Allen G.
Thurman, of Ohio, on the ground that the Vice-President was not a
Member of the Senate who might be expelled, but an officer of the
Government, who should be proceeded against by process of impeachment,
if at all. The motion for the appointment of the committee was not
agreed to.
1243. In a single instance the Senate annulled its action in
expelling a Member.--On March 3, 1877,\2\ the Senate annulled the
action whereby on July 11, 1861, William K. Sebastian was expelled. The
resolution of annulment was adopted on report from the Committee of
Privileges and Elections, which held that the Senate possessed this
right of review.
1244. Parliamentary law as to offenses committed by a Member in the
House,especially in debate.--Section III of Jefferson's Manual, on the
subject of privilege, provides:
If an offense be committed by a Member in the House, of which the
House has cognizance, it is an infringement of their right for any
person or court to take notice of it till the House has punished the
offender, or referred him to a due course. (Lex Parl., 63.)
Privilege is in the power of the House, and is a restraint to
theproceeding of inferior courts, but not of the House itself. (2
Nalson, 450; 2 Grey, 399.) For whatever is spoken in the House is
subject to the censure of the House; and offenses of this kind have
been severely punished by calling the person to the bar to make
submission, committing him to the Tower, expelling the House, etc.
(Seeb., 72; L. Parl., c. 22.)
1245. The House considered but did not act on propositions to expel
orcensure a Member who had published in a newspaper an article alleged
to be in violation of the privileges of the House.--On February
21,1839,\3\ Mr. Sergeant S. Prentiss, of Mississippi, rising to a
question of privilege, moved the following resolutions:
Resolved, That this House proceed forthwith to inquire--
First. Whether Alexander Duncan, a Member of this House from the
State ofOhio, be the author of a certain publication, or publications,
under his name, in relation to the proceedings of this House and
certain Members thereof, published in the Globe newspaper of the 19th
instant;
Second. Whether, by said publication or publications, the said
AlexanderDuncan has not been guilty of a violation of the privileges of
this House; of an offense against its peace, dignity, and good order;
and of such grosslyindecent, ungentlemanly, disgraceful, and
dishonorable misconduct, asrenders him unworthy of a seat in this
House, and justly liable to expulsion from the same.
After debate, Mr. Prentiss offered the following as a modification of
hisproposition:
That, as Alexander Duncan has avowed himself the author of the
publicationin the Globe, he be, and is hereby, expelled from the House.
Debate arose over this proposition, Mr. John Quincy Adams, of
Massachusetts, calling attention to the fact that it involved the
constitutional power of the House
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\1\ Third session Forty-second Congress, Globe, p. 895.
\2\ Second session Forty-fourth Congress, Record, pp. 2193-2203
\3\ Third session Twenty-fifth Congress, Journal, pp. 618-631;
Globe,pp. 197, 199.
Sec. 1246
to expel a Member. Finding opposition, Mr. Prentiss withdrew
theproposition to expel.
On the succeeding day, Mr. Waddy Thompson, jr., of South Carolina,
proposed a substitute, which was accepted by Mr. Prentiss, in the form
of a preamble reciting the article from the Globe in full, with other
matters pertinent to the controversy, and concluding with a resolution
that Mr. Duncan had subjected himself to the just censure of the House,
and should be reprimanded by the Speaker.
After debate, Mr. Sherrod Williams, of Kentucky, moved that the
matter belaid on the table, and the motion was agreed to, yeas 117,
nays 95.
1246. A Member was censured for presenting a resolution insulting to
theHouse.
A Member against whom a resolution of censure was pending
participated inthe debate.
On May 14, 1866,\1\ Mr. Robert C. Schenck, of Ohio, as a question
ofprivilege, submitted the following:
Resolved, That John W. Chanler, a Representative from the Seventh
district of the State of New York, by presenting this day a resolution
to be considered by this House, in the following terms:
``Resolved, That the independent, patriotic, and constitutional
course of the President of the United States in seeking to protect by
the veto power the rights of the people of this Union against the
wicked and revolutionary acts of a few malignant and mischievous men
meets with the approval of this House and deserves the cordial support
of all loyal citizens of the United States,'' has thereby attempted a
gross insult to the House, and is hereby censured therefor.
After debate, in the course of which Mr. Chanler spoke in his own
behalf,the question was taken and there were yeas 72, nays 30, and so
the resolution was agreed to.
1247. A Member who had used offensive words against the character of
theHouse, and who declined to explain when called to order, was
censured by order of the House.--On January 15, 1868,\2\ during the
consideration of thebill (H. R. 439) supplementary to the act to
provide for the more efficientgovernment of the rebel States, when Mr.
Fernando Wood, of New York, was called to order for the use of the
following words:
A monstrosity, a measure the most infamous of the many infamous acts
ofthis infamous Congress.
On demand of Mr. John A. Bingham, of Ohio, the words were taken down,
andthe Speaker \3\ decided that they were not in order.
Mr. Wood having declined to explain, the question was put: Shall the
Member be permitted to proceed? and decided in the negative, yeas 40,
nays 108.
Thereupon, Mr. Henry L. Dawes, of Massachusetts, submitted the
followingresolution:
Resolved, That Fernando Wood, a Member of this House from the State
of New York, having this day used in debate, upon the floor of the
House, the following words: ``A monstrosity, a measure the most
infamous of the manyinfamous acts of this infamous Congress,'' deserves
therefor the censureof this House, and the Speaker is hereby directed
forthwith to pronounce that censure at the bar of the House.
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\1\ First session Thirty-ninth Congress, Journal, p. 695; Globe, p.
2573.
\2\ Second session Fortieth Congress, Journal, pp. 193-195; Globe, p.
542.
\3\ Schuyler Colfax, of Indiana, Speaker.
Sec. 1248
A motion to lay on the table having been decided in the negative, the
resolution was agreed to under the operation of the previous question,
yeas 114, nays 39.
Thereupon Mr. Wood appeared at the bar of the House, and the Speaker
said:
Mr. Fernando Wood: May's Treatise on the Law, Privileges, and Usages
of Parliament, from which we derive the fundamental principles of our
parliamentary law, in speaking of occurrences like that which has
caused the vote the result of which has just been announced, thus
speaks:
``It is obviously unbecoming to permit offensive expressions against
the character and conduct of Parliament to be used without rebuke; for
they are not only a contempt of that high court, but are calculated to
degrade the legislature in the estimation of the people. If directed
against the other House and passed over without censure, they would
appear to implicate one House in discourtesy to the other; if against
the House in which the words are spoken, it would be impossible to
overlook the disrespect of one of its own Members. Words of this
objectionable character are never spoken but in anger; and when called
to order the Member must see the error into which he has been misled,
and retract or explain his words and make a satisfactory apology.
Should he fail to satisfy the House in this manner he will be punished
by a reprimand or commitment.''
Having violated this universally recognized rule of parliamentary law
in all deliberative bodies, the House has ordered its censure to be
pronounced upon you by its presiding officer. This duty having been
performed, you will resume your seat.
1248. A Member having used words insulting to the Speaker, the House,
on asubsequent day and after other business had intervened, censured
the offender.
An insult to the Speaker has been held to raise a question of
privilege not governed by the ordinary rule about taking down
disorderly words as soon as uttered.
When the House was considering a resolution censuring a Member for an
alleged insult to the Speaker, the Speaker called another Member to the
chair.
On July 9, 1832,\1\ during debate on a question of order, Mr. William
Stanbery, of Ohio, in criticizing a ruling of the Chair, said:
I defy any gentleman to point me to a single decision to the
contrary, until you presided over this body. And let me say that I have
heard the remark frequently made, that the eyes of the Speaker are too
frequently turned from the chair you occupy toward the White House.
Mr. Stanbery being called to order by Mr. Franklin E. Plummer, of
Mississippi, sat down; and the debate proceeded.
The pending question being disposed of, Mr. Thomas F. Foster, of
Georgia, moved that the rules be suspended in order to enable the House
to consider \2\ the following resolution:
Resolved, That the insinuations made in debate this morning by the
honorable William Stanbery, a Member of this House from Ohio, charging
the Speaker of House with shaping his course, as this presiding officer
of the House, with the view to the obtainment of office from the
President of the United States, was an indignity to the Speaker and the
House, and merits the decided censure of this House.
The vote being taken, there were yeas 95, nays 62; so the House
refused to suspend the rules.
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\1\ First session Twenty-second Congress, Journal, p. 1113; Debates,
pp. 3876, 3877, 3887.
\2\ The pressure of business had at this date become such as not to
permit the regular order to be interrupted except by unanimous consent
or by a vote to suspend the rules; but the system had not been
instituted yet of admitting such resolutions as matters of privilege--
or at least not in cases of this kind.
Sec. 1248
On July 10,\1\ when the States were called for the presentation of
resolutions,\2\ Mr. James Bates, of Maine, presented the resolution
again, with the slight modification of ``words spoken'' instead of
``insinuations made.''
Mr. Charles F. Mercer, of Virginia, made the point of order against
the resolution that the words of the gentleman from Ohio, were not
taken down at the time they were spoken, nor at the close of the speech
of the Member; because other business had occurred since the imputed
insinuations were made; and because a day had elapsed since the words
were used, without any action or proceeding of the House in relation
thereto. Jefferson's Manual was quoted in support of this
contention.\3\
The Speaker pro tempore \4\ decided that the resolution was in order.
This was a question concerning the privileges of the House; therefore
the rules of ordinary debate did not apply.
Mr. Mercer appealed; but pending the discussion the hour expired, and
although Mr. George MeDuffie, of South Carolina, insisted that the
pending question had precedence, because it related to the dignity and
privileges of the House, the House voted to proceed to the orders of
the day. On the next day, however, when the question arose again, the
Speaker pro tempore corrected his decision of the day before, and
decided that a question of order involving the privileges of the House
took precedence of all other business.
On July 11 \5\ debate on the appeal of Mr. Mercer was resumed. Mr.
John Quincy Adams, of Massachusetts, said that this seemed to be a case
of punishment for disorderly words spoken in debate. But in such a
proceeding the words should be taken down, which had not been done in
this case, although the Manual specifically provided such a course of
procedure. That course was founded in reason and justice, and was, as
expressly declared, ``for the common security of all.''
The decision of the Chair, on Mr. Mercer's appeal, was finally
sustained, yeas 82, nays 48.
The question recurring on agreeing to the resolution of censure, Mr.
Stanbery justified what he said as parliamentary by quoting Lord
Chatham's words, which had passed without a call to order in open
Parliament, ``the eyes of the Speaker of that House were too often
turned toward St. James's.''
Mr. Samuel F. Vinton, of Ohio, raised a question as to whether or not
interrogatories should not be propounded by the Chair to the Member
about to be censured, to ascertain whether he admitted or denied the
fact charged in the resolution; but the Speaker declined to do so.
The question being taken,\6\ the resolution of censure was agreed to,
yeas 93, nays 44.
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\1\ Journal, p. 1118; Debates, pp. 388S-3891.
\2\ In the order of business at that time an hour was devoted to the
presentation of resolutions, etc., before passing to the Speaker's
table and the orders of the day.
\3\ See Chapter XVII of Jefferson's Manual.
\4\ Clement C. Clay, of Alabama, Speaker pro tempore. Mr. Speaker
Stevenson had left the chair from motives of delicacy. Debates, p.
3898.
\5\ Journal, pp. 1134, 1135; Debates, pp. 3899-3903.
\6\ Journal, p. 1141; Debates, p. 3907.
Sec. 1249
Several Members asked to be excused from voting, on the ground that
they had not heard the words spoken by Mr. Stanbery, but the House
declined to excuse them. Mr. Adams, however, refused to vote.
1249. A Member in debate having declared the words of another Member
``a base lie,'' the Speaker declared the words out of order and the
House inflicted censure on the offender.
The Speaker having, by order of the House, censured a Member, the
words of censure were spread on the Journal.
On January 26, 1867,\1\ during debate on the bill (H. R. 543) for
restoring to the States lately in insurrection their full political
rights, Mr. John W. Hunter, of New York, was called to order by Mr.
Ralph Hill, of Indiana, for the use of the following words: ``I say
that, so far as I am concerned, it is a base lie,'' referring to a
statement by Mr. James M. Ashley, of Ohio.
The Speaker \2\ decided the words out of order.
Thereupon Mr. Hill submitted the following resolution:
Resolved, That the gentleman from New York, Hon. Mr. Hunter, in
declaring during debate in the House, in reference to the assertions of
the gentleman from Ohio, Hon. Mr. Ashley, ``I say that, so far as I am
concerned, it is a base lie,'' has transgressed the rules of this body,
and that he be censured for the same by the Speaker.
The resolution having been agreed to--yeas 77, nays 33--Mr. Hunter
appeared at the bar of the House and the Speaker administered the
censure. This censure by the Speaker appears in full in the Journal.
1250. A Member having explained that by disorderly words which had
been taken down he had intended no disrespect to the House, a
resolution of censure was withdrawn.--On June 1, 1860,\3\ on the
request of Mr. John Sherman, of Ohio, the following words spoken in
debate were taken down:
By Mr. Charles R. Train, of Massachusetts: ``I am not in the habit of
troubling the House much, and I never insist upon speaking when I am
clearly out of order. I should consider myself guilty of gross
impropriety, not only as a Member of the House, but as a gentleman, if
I insisted upon addressing the Chair, and interpolating my remarks when
I had no right to the floor.''
By Mr. George S. Houston, of Alabama: ``I wish to know if the
gentleman from Massachusetts applied that remark to me?''
By Mr. Train: ``I mean exactly what I did say, and I stand by what I
said.''
By Mr. Houston: ``I mean to say that if he applied that remark to me,
he is a disgraced liar and scoundrel.'' \4\
Mr. Sherman submitted this resolution:
Resolved, That the gentleman from Alabama, Mr. Houston, be censured
for disorderly words spoken in debate.
During the discussion of the resolution the point of order was made
that the gentleman from Ohio did not call the gentleman from Alabama to
order before asking that the words be taken down.
The Speaker overruled the point of order.
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\1\ Second session Thirty-ninth Congress, Journal, pp. 271-273;
Globe, pp. 785-787.
\2\ Schuyler Colfax, of Indiana, Speaker.
\3\ First session Thirty-sixth Congress, Journal, pp. 972-981; Globe,
pp. 2546, 2548, 2564.
\4\ These words appear in full in the Journal as taken down.
\5\ William Pennington, of New Jersey, Speaker.
Sec. 1251
A motion was then made to amend the resolution by including the name
of Mr. Train. Finally, after motions to lay the resolution on the table
had been decided in the negative, and after the previous question had
been ordered on the resolution and amendment, Mr. Sherman withdrew his
resolution by permission of the House, and Mr. Houston made an
explanation that he had intended no disrespect to the House.
1251. After abandoning a proposition to expel, the House arrested and
censured a Member for gross personalities aimed at another Member, and
for deception of the Speaker when the latter had proposed to prevent
the utterances.--On February 4, 1875,\1\ the House was considering the
motion of Mr. Benjamin F. Butler, of Massachusetts, to recommit the
bill (H. R. 7196) to protect all persons in their civil and political
rights.
Pending the debate, Mr. John Young Brown, of Kentucky, was called to
orderfor words used in debate, and the following were taken down: \2\
Now again that accusation has come from one--I speak not of men but
of language, and within the rules of the House--that accusation against
that people has come from one who is outlawed in his own home from
respectable society; whose name is synonymous with falsehood; who is
the champion, and has been on all occasions, of fraud; who is the
apologist of thieves; who is such a prodigy of vice and meannesses that
to describe him would sicken imagination and exhaust invective.
In Scotland years ago there was a man whose trade was murder, and who
earned a livelihood by selling the bodies of his victims for gold. He
linked his name to his crime, and to-day throughout the world it is
known as ``Burking.''
The Speaker. Does the Chair understand the gentleman to be referring
in this language to a Member of the House?
Mr. Brown. No, sir; I am describing an individual who is in my mind's
eye.
The Speaker. The Chair understood the gentleman to refer to a Member
of the House.
Mr. Brown. No, sir; I call no names.
This man's name was linked to his crime, and to-day throughout the
world it is known as ``Burking.'' If I wished to describe all that was
pusillanimous in war, inhuman in peace, forbidden in morals, and
infamous in politics, I should call it ``Butlerism.''
Mr. Robert S. Hale, of New York, then offered the following:
Resolved, That the Member from Kentucky, Mr. John Young Brown, in the
language used by him upon the floor and taken down at the Clerk's desk,
as well as in the prevarication to the Speaker, by which he was enabled
to complete the utterance of the language, has been guilty of the
violation of the privileges of this House and merits the severe censure
of the House for the same.
Resolved, That the said John Young Brown be now brought to the bar of
the House in the custody of the Sergeant-at-Arms, and be there publicly
censured by the Speaker in the name of the House.
Mr. Henry L. Dawes, of Massachusetts, moved to amend by substituting
a resolution of expulsion, but after debate withdrew it, saying it was
evident that it could not receive a two-thirds vote.
Thereupon, after debate, the resolution of censure was agreed to,
yeas 161, nays 79.
Thereupon the Sergeant-at-Arms appeared at the bar having in custody
Mr. Brown, and the Speaker pronounced the censure of the House.\3\ He
was then discharged from custody.
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\1\ Second session Forty-third Congress, Journal, pp. 392-394;
Record, pp. 986-992.
\2\ The Journal does not have the words taken down (p. 392), but
simply says, ``the words having been reduced to writing.''
\3\ The Journal (p. 394) gives the remarks of the Speaker in full.
Sec. 1252
1252. It has been held in order to censure a Member for wordsalleged
to be treasonable, even though they were not taken down at thetime they
were uttered.--On April 12, 1864,\1\ the House was considering
apreamble and resolution reciting that Alexander Long, a
Representativefrom Ohio, had in Committee of the Whole declared himself
in favor ofrecognizing the independence of the so-called Confederacy,
thereby violating the oath required of all Members of the House, and
providing for his expulsion from the House.
To this Mr. John M. Broomall, of Pennsylvania, offered an amendment
in thenature of a substitute, declaring that the said Long had by
declarations in the national capitol and by publications in New York,
shown himself disloyal and negligent of his oath by favoring the
recognition of the so-called Confederacy, and then resolving as
follows:
Resolved, That the said Alexander Long, a Representative from the
Second district of Ohio, be, and he is hereby, declared to be an
unworthy Member of the House of Representatives.
Resolved, That the Speaker shall read these resolutions to the
saidAlexander Long during the session of the House.
Mr. Charles A. Eldridge, of Wisconsin, made the point of order that
theamendment was out of order, on the ground that the words spoken by
Mr. Long were not taken down in writing at the time of their utterance,
nor was exception taken to them either in Committee of the Whole or in
the House until after another Member had spoken and other business had
intervened.
The Speaker pro tempore \2\ overruled the point of order and decided
that theamendment proposed was in order.
Mr. Eldridge having appealed, the decision of the Chair was sustained
onthe succeeding day, yeas 79, nays 66.
1253. After considering the question of expulsion, the House censured
a Member for words alleged to be treasonable.
A Member, against whom a resolution of censure was pending, addressed
theHouse without permission being asked or given.
Calling a Member to the Chair, Mr. Speaker Colfax offered from the
floor aresolution for the expulsion of a Member.
On April 9, 1864,\3\ Mr. Edward H. Rollins, of New Hampshire, was
called tothe chair, and the Speaker \4\ as a question of privilege,
submitted the following preamble and resolution:
Whereas on the 8th of April, 1864, when the House of Representatives
was in Committee of the Whole on the state of the Union, Alexander
Long, a Representative from the Second district of Ohio, declared
himself in favor of recognizing the independence and nationality of the
so-called Confederacy, now in arms against the Union; and whereas the
said so-called Confederacy thus sought to be recognized and established
on the ruins of a dissolved or destroyed Union has as its chief
officers, civil and military, those who have added perjury to their
treason, and who seek to obtain success for their parricidal efforts by
the killing of the loyal soldiers of the nation, who are seeking to
save it from destruction; and whereas the oath required of all Members,
and taken by the said AlexanderLong on the first day
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\1\ First session Thirty-eighth Congress, Journal, pp. 518, 519, 520;
Globe, p. 1593.
\2\ Edward H. Rollins, of New Hampshire, Speaker pro tempore.
\3\ First session Thirty-eighth Congress, Journal, pp. 505, 520, 522,
523;Globe, pp. 1505, 1533, 1577, 1618, 1626, 1634.
\4\ Schuyler Colfax, of Indiana, Speaker.
Sec. 1254
of the present Congress, declares ``that I have voluntarily given no
aid,countenance, counsel, or encouragement to persons engaged in armed
hostility to the United States,'' \1\ thereby declaring that such
conduct is regarded as inconsistent with membership in the Congress of
the United States: Therefore,
Resolved, That Alexander Long, a Representative from the Second
district of Ohio, having, on the 8th of April, 1864,declared himself in
favor of recognizing the independence and nationalityof the so-called
Confederacy, now in arms against the Union, and thereby ``giving aid,
countenance, and encouragement to persons engaged in armed hostility to
the United States,'' is hereby expelled.
The resolution and preamble were debated at length, it being urged
againstthem that the words actually spoken did not bear the
interpretation put upon them, and that the expulsion of a Member for
speech on the floor of the House was against the Constitution and the
spirit of the institutions of thecountry. On the other hand, it was
urged that the whole tenor of the speech had been such as to give
encouragement to the enemies of the Government and make its author
unworthy to sit in the House.
On April 14, on the suggestion of Mr. John M. Broomall, of
Pennsylvania,who had proposed an amendment to the same effect, Mr.
Colfax modified the resolution, as follows:
Whereas Alexander Long, a Representative from the Second district of
Ohio,by his open declarations in the National Capitol and publications
in the city of New York, has shown himself to be in favor of a
recognition of the so-called Confederacy now trying to establish itself
upon the ruins of our country, thereby giving aid and comfort to the
enemy in that destructive purpose--aid to armed traitors in erecting an
illegal government within our borders--comfort to them by assurances of
their success and affirmations of the justice of their cause; and
whereas such conduct is at the same time evidence of disloyalty and
inconsistent with his oath of office and his duty as a Member of this
body: Therefore,
Revolved, That the said Alexander Long, a Representative from the
Second district of Ohio, be, and he is hereby, declared to be an
unworthy Member of the House of Representatives.
Revolved, That the Speaker shall read these resolutions to the
saidAlexander Long during the session of the House.
The debate continuing, Mr. Long addressed the House, rising in his
placeas a matter of course, and obtaining no permission to be heard.
A motion to lay the preamble and resolution on the table was decided
in the negative, yeas 70, nays 80.
The first resolution was then agreed to, yeas 80, nays 70.
Then, by a vote of yeas 71, nays 70, the House agreed to the motion
of Mr.William S. Holman, of Indiana, that the second resolution be laid
on the table.
The preamble was then agreed to, yeas 78, nays 63.
1254. For words alleged to be treasonable, the House censured a
Memberafter a motion to expel him had failed.
A proposition for the punishment of a Member is presented as a
question ofprivilege.
On April 9, 1864,\2\ Mr. Elihu B. Washburne, of Illinois, as a
question ofprivilege, submitted the following preamble and resolution:
Whereas the Hon. Benjamin G. Harris, a Member of the House of
Representatives of the United States from the State of Maryland, has,
upon this day used the following language, to wit: ``The South asked
you to let them live in peace. But no; you said you would bring them
into subjection. That
-----------------------------------------------------------------------
\1\ This oath was specially adopted for the years of the war and the
yearsimmediately succeeding. It has since been repealed.
\2\ First session Thirty-eighth Congress, Journal, pp. 506-509;
Globe, pp.518, 519.
Sec. 1255
is not done yet; and God Almighty grant that it never may be. I hope
thatyou will never subjugate the South;'' and whereas such language is
treasonable and a gross contempt of this House: Therefore, be it
Resolved, That the said Benjamin G. Harris be expelled from this
House.
The vote being taken, there appeared, yeas 84, nays 58; and so, two-
thirdsnot concurring, the resolution was not agreed to.
Thereupon Mr. Robert C. Schenck, of Ohio, as a question of
privilege,submitted the following:
Resolved, That Benjamin G. Harris, a Representative from the Fifth
district of the State of Maryland, having spoken words this day in
debate manifestly tending and designed to encourage the existing
rebellion and the public enemies of this nation, is declared to be an
unworthy Member of this House and is hereby severely censured.
After the disposal of several intervening motions, the question
recurred on the resolution, which was agreed to, yeas 98, nays 20.
1255. An attempt to censure a Member for presenting a petition
alleged tobe treasonable failed after long debate.
Discussion as to whether or not the principles of the procedure of
thecourts should be followed in action for censure.
An instance wherein a Member against whom a resolution of censure
waspending was allowed to insert in the Journal his demand for a
constitutional trial.
It is not the duty of the Speaker to construe the Constitution as
affecting proposed legislation.
On January 24, 1842,\1\ Mr. John Quincy Adams, of Massachusetts,
presented a petition of 46 citizens of Haverhill, in the State of
Massachusetts, praying Congress immediately to adopt measures peaceably
to dissolve the Union ofthese States, for three reasons, which were set
forth in the petition. Mr. Adams moved that the petition be referred to
a select committee, with instructions to the committee to report to the
House the reasons why the prayer thereof should not be granted.
Pending proceedings on the reception of this petition Mr. Thomas W.
Gilmer, of Virginia, as a question of privilege, presented the
following:
Resolved, That in presenting for the consideration of the House a
petition for the dissolution of the Union, the Member from
Massachusetts (Mr. Adams) has justly incurred the censure of this
House.
In the course of the consideration of this resolution, and on January
25,\2\ Mr. Thomas F. Marshall, of Kentucky, proposed to amend the
pending resolution by substituting the following preamble and
resolution:
Whereas the Federal Constitution is a permanent form of government,
and ofperpetual obligation until altered or modified in the mode
pointed out by that instrument, and the Members of this House deriving
their political characterand powers from the same are sworn to support
it, and the dissolution ofthe Union necessarily implies the destruction
of that instrument, the overthrow of the American Republic, and the
extinction of our national existence, a proposition, therefore, to the
Representatives of the people to dissolve the organic law framed by
their constituents, and to support which they are commanded by those
constituents to be sworn before they can enter upon the execution of
the political powers created by it and intrusted to them, is a high
breach of privilege, a con-
-----------------------------------------------------------------------
\15\ Second session Twenty-seventh Congress, Journal, pp. 272, 273;
Globe, p. 68.
\2\ Journal, p. 278; Globe, p. 169.
Sec. 1255
tempt offered to this House, a direct proposition to the legislature,
andeach Member of it, to commit perjury, and involves necessarily, in
its execution and its consequences, the destruction of our country and
the crime of high treason:
Resolved, therefore, That the Hon. John Q. Adams, Member from
Massachusetts, in presenting, for the consideration of the House of
Representatives of the United States a petition praying for the
dissolution of the Union, has offered the deepest indignity to the
House of which he is a Member, an insult to the people of the United
States, of which that House is the legislative organ, and will, if this
outrage be permitted to pass unrebuked and unpunished, have disgraced
his country, through their Representatives, in the eyes of the whole
world.
Resolved, further, That the aforesaid John Q. Adams, for this insult,
the first of the kind ever offered to the Government, and for the wound
which he has permitted to be aimed, through his instrumentality, at the
Constitutionand existence of his country, the peace, the security, and
liberty of thepeople of these States, might well be held to merit
expulsion from the national councils; and the House deem it an act of
grace and mercy when they only inflict upon him the severest censure
for conduct so utterly unworthy of his past relations to the State and
his present position. This they hereby do for the maintenance of their
own purity and dignity, for the rest, they turn him over to his own
conscience and the indignation of all true American citizens.
Motions to lay the subject on the table having been decided in
thenegative, and the debate having proceeded, on January 26 \1\ Mr.
Adams raised the following question of order:
Has the House the right to entertain the resolution, because it
charges him with crimes of which the House has no jurisdiction; and if
the House entertain the jurisdiction, they deprive him of rights
secured to him by the Constitution of the United States?
The Speaker \2\ declined to decide the point submitted, it being a
questionwhich it was the peculiar province of the House to decide.
Mr. Marshall, in support of his proposition, referred to the
precedent ofJohn Smith in the Senate in 1807.
The question of consideration was put to determine whether the House
wouldconsider the matter, and it was decided in the affirmative, yeas
118, nays 75.
Mr. Adams then demanded the benefit of the sixth article of the
amendmentsto the Constitution of the United States, and required that
his demand be entered on the Journal. Without any vote being taken, the
article was entered and appears on the journal as follows:
In all criminal prosecutions the accused shall enjoy the right to a
speedyand public trial by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall have
been previously ascertained by law; and to be informed of the nature
and cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his
favor; and to have the assistance of counsel for his defense.
After further debate, and a further refusal of the House to lay the
subject on the table, on February 2 \3\ Mr. Adams, as a part of his
defense, presented four resolutions calling on heads of departments and
the President to furnish certain specified information on subjects
relating to slavery and the rule of the House excluding petitions for
the abolition of slavery.
Mr. Gilmer objected to the reception of the resolutions as contrary
to theregular order of business.
-----------------------------------------------------------------------
\1\ Second session Twenty-seventh Congress, Journal, pp. 280, 283;
Globe, pp. 180, 184.
\2\ John White, of Kentucky, Speaker.
\3\ Journal, pp. 298-306; Globe, pp. 200-203.
Sec. 1256
The Speaker decided to receive them, as connected with the subject
beforethe House.
The first resolution was agreed to, yeas 97, nays 96, the second,
yeas 95, nays 84; but the third and fourth, relating to action of the
President of the United States with regard to the rule relating to
petitions, were laid on the table, yeas 111, nays 64, although Mr.
Adams declared the information which they called for most important for
his defense.
The debate then continued, Mr. Adams contending that as he was to be
tried for crime he should have time and means to make his defense, and
Mr. Marshall urging that the House had a right to censure, irrespective
of therelations of the offense to the courts of justice.
On this day also Mr. George W. Summers, of Virginia, proposed the
following proposition:
That a select committee be appointed to take into consideration the
contempt and breach of privilege alleged to have been committed by John
Quincy Adams, a Member of this House, in presenting a petition on the
24th day of January last purporting to be signed by certain citizens of
Massachusetts praying that Congress should take suitable measures for
the peaceable dissolution of the Union, and that it be the duty of said
committee to consider and report whether any, and, if any, what further
proceedings should be taken by the House in the matter of said alleged
contempt and breach of privilege; and if the said committee shall be of
opinion that any action on the part of the House in relation to the
presentation of said petition by the said John Quincy Adams be proper
and expedient, then that the said committee do further report what, in
their opinion, will be the best and most appropriate mode of conducting
the proceedings of the House in relation thereto, having respect to the
powers and duty of the House, the precedents of parliamentary usage,
and the rights of the Member accused.
The debate proceeded, Mr. Adams contending that, although he admitted
the force of the precedent in the case of John Smith and realized the
discretionary power of the House to try him on a question of privilege,
the House should either send him before a court of justice or try him
themselves, before proceeding to pass judgment upon him.
Finally, on February 7,\1\ on motion of Mr. John M. Botts, of
Virginia, who said that the House and the country were anxious to get
rid of the subject, the whole matter was laid on the table, by a vote
of 106 yeas, 93 nays.
1256. The House censured Joshua R. Giddings for presentation of a
paper deemed incendiary and without hearing him in defense.
Instance wherein a Member resigned his seat, sought reelection, and
appeared again to be sworn in during the same Congress.
The previous question applies to a question of privilege as to any
other question.
On March 21, 1842,\2\ Mr. John B. Weller, of Ohio, moved the
following:
Whereas the honorable Joshua R. Giddings, the Member from the
Sixteenth Congressional district of the State of Ohio, has this day
presented to this House a series of resolutions touching the most
important interests connectedwith a large portion of the Union, now a
subject of negotiation between the United States and Great Britain of
the most delicate nature, the result of which may eventually involve
these two nations, and perhaps the whole civilized world, in war; and
-----------------------------------------------------------------------
\1\ Journal, pp. 313-315; Globe, p. 214.
\2\ Second session Twenty-seventh Congress, Journal, pp. 573, 576;
Cong. Globe, pp. 343, 345.
Sec. 1257
Whereas it is the duty of every good citizen, and particularly the
duty of every selected agent and representative of the people, to
discountenance all efforts to create excitement, dissatisfaction, and
division among the people of the United States at such a time and under
such circumstances, which is the only effect to be accomplished by the
introduction of sentiments before the legislative body of the country
hostile to the grounds assumed by the high functionary having in charge
this important and delicate trust; and
Whereas mutiny and murder are therein justified and approved in terms
shocking to all sense of law, order, and humanity: Therefore
Resolved, That this House hold the conduct of said Member as
altogether unwarranted and unwarrantable, and deserving the severe
condemnation of the people of this country, and of this body in
particular.
Mr. Weller asked for the previous question, pending which Mr.
Giddings inquired of the Chair whether the effect of that question, if
sustained, would be to preclude him from giving his reasons why the
resolution should not pass.
The Speaker decided that if Mr. Giddings desired to be heard in his
defense, and claimed it as a matter of privilege, he would not
entertain the previous question at this time, as it would cut him off
from his right of defense.
Mr. Giddings then moved that the further consideration of the subject
be postponed until Thursday week next, to the end that he might prepare
for his defense.
Debate arising on this motion, Mr. Millard Fillmore, of New York,
submitted that debate was not in order, and that the motion for the
previous question should be now entertained by the Speaker.
The Speaker \1\ then decided that, in his judgment, the matter before
the House was a question of privilege, and that on a question involving
the privileges of a Member of the House the previous question could not
be applied, and consequently that the motion for postponement was open
to debate.
From this decision Mr. Fillmore appealed, and the House overruled the
Speaker, 118 nays to 64 yeas.\2\
On March 22 the preamble and resolution were agreed to, the
resolution by a vote of 125 yeas to 69 nays; the preamble by a vote of
yeas 119, nays 66.\3\
On March 23 Mr. Giddings resigned his seat in the House, and on May 5
again appeared, having been elected his own successor, and was
qualified and took his seat.\4\
1257. Unparliamentary words spoken in Committee of the Whole are
taken down and read, whereupon the committee rises and reports them to
the House.
Members who had indulged in unparliamentary language in Committee of
the Whole escaped the censure of the House by making apologies.
On June 14, 1882,\5\ in the Committee of the Whole House on the state
of the Union, the following words between Messrs. William D. Kelley, of
Pennsylvania,
-----------------------------------------------------------------------
\1\ John White, of Kentucky, Speaker.
\2\ The previous question under the present rules is not so drastic.
Forty minutes are allowed for debate after the previous question is
ordered, if there has not previously been debate. (See sec. 5495 of
Vol. V of this work.)
\3\ Journal, pp. 578, 579; Globe, pp. 345, 346.
\4\ Journal, pp. 586, 784; Globe, pp. 349, 479.
\5\ First session Forty-seventh Congress, Journal, p. 1471; Record,
pp. 4903-4905.
Sec. 1258
and John D. White, of Kentucky, were taken down on demand of Mr.
William S. Holman, of Indiana:
Mr. White. It is merely a question of veracity. I heard him make the
statement myself.
Mr. Kelley. And I denounce the statement as the ravings of a maniac
or a deliberate lie.
Mr. White. The gentleman may be scoundrel enough to make that
statement.
The Chairman \1\ directed the words to be read to the committee as
takendown, and then under the rule caused thecommittee to rise and
reported the words to the House.
The report having been made to the House, Mr. William M. Springer, of
Illinois, offered a preamble reciting the words taken down, and
continuing:
And whereas such language is disorderly and destructive of the
dignity and honor of the House: Therefore,
Resolved, That it is the sense of this House that the Speaker do
reprimand said Members for using said disorderly words in derogation of
the good order and decorum of the House.
Thereupon, during debate, both Messrs. Kelley and White made
explanations and apologies to the House, and the resolution and
preamble were withdrawn.
1258. On March 1, 1883,\2\ in Committee of the Whole House on the
state of the Union, during consideration of the river and harbor
appropriation bill, Mr. John Van Voorhis, of New York, criticized a
certain item as one that no one would have ever heard of if the
chairman of the committee reporting the bill were not from a certain
portion of the country, and said:
It is so outrageous, so damnable, that nobody but a gambler or
cutthroat would have thought of tacking such a thing as that to such a
bill as this.
The words were taken down, on motion of a Member, and the committee
rose and reported them to the House.
Thereupon Mr. Robert M. McLane, of Maryland, proposed a preamble
reciting the words reported and this resolution:
Therefore resolved, That for the use of said language said Van
Voorhis is expelled from this House.
Pending debate Mr. Van Voorhis, on motion of Mr. McLane and on vote
of the House, was allowed to explain. Mr. Van Voorhis then said that he
did not mean to apply the words to the chairman of the committee, and
that he regretted that exception should be taken to them, or that he
should be under the necessity of withdrawing them. He did in fact ask
leave to withdraw the words.
Mr. McLane thereupon withdrew the preamble and resolution.
Mr. Hilary A. Herbert, of Alabama, however, offered the following:
Resolved, That the Member from New York, Mr. John Van Voorhis, in the
language used by him upon the floor and taken down by the Clerk's desk,
has been guilty of a violation of the privileges of this House and
merits the severe censure of the House for the same.
Resolved, That the said John Van Voorhis be now brought to the bar of
the House by the Sergeant-at-Arms and be there publicly censured by the
Speaker in the name of the House.
Mr. Van Voorhis stated that he apologized to the House for the use of
thelanguage.
-----------------------------------------------------------------------
\1\ George D. Robinson, of Massachusetts, chairman.
\2\ Second session Forty-seventh Congress, Journal, p. 533; Record,
pp. 3540-3543.
Sec. 1259
Thereupon a motion to lay the resolutions on the table was decided in
the negative, and then, on the question of agreeing to them, there were
ayes 66, noes 78. So the resolutions were not agreed to.
1259. For unparliamentary language in Committee of the Whole, William
D. Bynum was censured by the House.
Unparliamentary language used in Committee of the Whole was taken
down and read at the Clerk's desk, and thereupon the committee voted to
rise and report it to the House.
The Committee of the Whole having reported language alleged to be
unparliamentary, a resolution of censure was held to be in order
without a prior decision of the Speaker that the words were, in fact,
out of order.
The House having agreed to a resolution of censure, and the Member
being brought to the bar by the Sergeant-at-Arms to be censured, it was
held that he might not then be heard.
Form of censure administered by the Speaker to a Member by order of
the House.
On May 17, 1890,\1\ during the consideration of the tariff bill (H.
R. 9416) in Committee of the Whole House on the state of the Union, Mr.
William D. Bynum, of Indiana, used these words:
I desire simply to say that I did the other day, knowing full well
the meaning of the words and that I was responsible for them, denounce
Mr. Campbell as a liar and a perjurer. I want to say that I accept and
am willing to believe that I have as great confidence in the character
of Mr. Campbell as I have in the character of the gentleman who makes
this attack upon me.
On the request of Mr. Byron M. Cutcheon, of Michigan, the chairman
\2\ directed the words to be taken down and read at the Clerk's desk.
Thereupon, on motion of Mr. Cutcheon, the committee rose, and the
chairman reported that the Committee of the Whole House on the state of
the Union had directed him to report to the House the following
language, used by Hon. William D. Bynum in the course of debate, etc.
The Speaker \3\ directed the Clerk to read sections 4 and 5 of Rule
XIV,\4\ which was done.
Thereupon Mr. W. C. P. Breckinridge, of Kentucky, made the point of
order that ``a Member can not be put on his defense except under the
circumstances stated in the rule; that the record does not show that
the words were spokenjust before the committee rose, or at any
particular time named in therecord; so that the Speaker is assuming as
a matter of fact that which the record does not show.''
The Speaker overruled the point of order on the ground that the Chair
can only pass upon the matter as reported to him by the chairman of the
Committee of the Whole, and the presumption is that it is properly
reported.
Mr. Breckinridge, of Kentucky, appealed from the decision of the
Chair. Pending which Mr. Isaac S. Struble, of Iowa, moved to lay the
appeal on the table; and
-----------------------------------------------------------------------
\1\ First session Fifty-first Congress, Journal, pp. 623-625; Record,
pp. 4861, 4862, 4868, 4876.
\2\ Charles H. Grosvenor, of Ohio, chairman.
\3\ Thomas B. Reed, of Maine, Speaker.
\4\ See sections 5175-5202 of Vol. V of this work.
Sec. 1259
the question being put, Shall the said appeal lie on the table? it was
decided in the affirmative, yeas 126, nays 101. So the appeal was laid
on the table.
And then Mr. Cutcheon submitted the following resolution:
Resolved, That the Member from Indiana, Mr. William D. Bynum, in
thelanguage used by him in Committee of the Whole House and taken down
and reported to the House and read at the Clerk's desk, has been guilty
of a violation of the rules and privileges of the House, and merits the
censure of the House for the same.
Resolved, That said William D. Bynum be now brought to the bar of the
House by the Sergeant-at-Arms, and there the censure of the House be
administered by the Speaker.
And the House having proceeded to their consideration, Mr.
Cutcheondemanded the previous question.
Pending this, Mr. William M. Springer, of Illinois, made the point of
order against the resolutions on the ground that ``no one has suggested
that this language is out of order; and further, that the Speaker has
not decided it to be unparliamentary language, and that the House has
not been permitted to pass upon the naked question; and after the House
shall pass upon it that it is the privilege of the Member to withdraw
the language used or to make any explanation he desires before the
House can proceed to pass such a resolution.''
After debate, the Speaker overruled the point of order, making use of
the following language:
The House will perceive at once from what has been stated how
impossible it is for the Chair in such a case as this to pass upon the
question of fact. The House can pass upon the question of fact in its
vote upon the resolution; and the argument of the gentleman from
Alabama will be very properly addressed to the House and to its
discretion on the question of the passage of the resolution.
As to the point of order made by the gentleman from Illinois [Mr.
Springer], the Chair finds not merely the precedent which has been
cited by the gentleman from Michigan [Mr. Cutcheon], but also the
following, on page 390 of the Journal of the House of Representatives
of February 4, 1875, Forty-third Congress, second session:
``Pending the debate thereon, Mr. John Young Brown was called to
order for words used in debate. The words having been reduced to
writing, Mr. Robert S. Hale submitted the following resolution,'' which
was a resolution of similar character to that proposed in the House to-
day, and thereupon it was voted on.
The Chair therefore overrules the point of order made by the
gentleman from Illinois.
Mr. Springer made a further point of order, that the language used by
the gentleman from Indiana was not unparliamentary and not out of
order.
The Speaker decided that the point could not be made at this time and
overruled the point of order.
Mr. Springer having appealed, the appeal was laid on the table, 121
yeas to 98 nays.
Then, motions to adjourn and to lay on the table being negatived, the
question recurred on Mr. Cutcheon's demand for the previous question.
Pending that, Mr. Springer moved that the resolutions be referred to
the Committee on Rules, with instruction to inquire whether or not the
language used was out of order and also whether there was not such
provocation therefor as justified its use under all the circumstances.
Mr. David B. Henderson, of Iowa, made the point of order that it was
not for the Committee of the Whole House or the Committee on Rules to
pass upon the
Sec. 1260
question at issue, but for the House itself to decide; and the further
point that the motion of Mr. Springer was in the nature of a
proposition to correct the record made in Committee of the Whole House
on the state of the Union, and that, the Speaker having held that the
report made from that committee was presumed to be in all respects
regular and in accordance with the rules of the House and the appeal
from that decision having been sustained by the House, that question
had been absolutely settled by the House.
The Speaker ruled that the resolution was not in order.
Mr. Springer appealed from the decision of the Chair, and on motion
of Mr. Frederick T. Greenhalge, of Massachusetts, the appeal was laid
on the table, yeas 114, nays 78.
The resolutions having been agreed to by the House, Mr. Bynum
appeared at the bar with the Sergeant-at-Arms, and by direction of the
Speaker the resolutions were read.
Mr. Bynum inquired if he might be heard.
The Speaker held that he could not.
Thereupon the Speaker pronounced the censure of the House:
Mr. William D. Bynum, you are arraigned at the bar of the House under
its formal resolution for having transgressed its rules in your
remarks. For this offense the House has directed that you shall be
censured at this bar. In the name of the House, therefore, I pronounce
upon you its censure. The Sergeant-at-Arms will discharge Mr. Bynum
from custody.
1260. Prior rights of the House when a Member is accused of treason,
felony, or breach of the peace.
A Member indicted for felony remains of the House until convicted.
Section III of Jefferson's Manual, on the subject of privilege,
provides:
And even in cases of treason, felony, and breach of the peace, to
which privilege does not extend as to substance, yet in Parliament a
Member is privileged as to the mode of proceeding. The case is first to
be laid before the House, that it may judge of the fact and of the
grounds of the accusation, and how far forth the manner of the trial
may concern their privilege; otherwise it would be in the power of
other branches of the Government, and even of every private man, under
pretenses of treason, etc., to take any man from his service in the
House, and so, as many, one after another, as would make the House what
he pleaseth. (Dec'l of the Com. on the King's declaring Sir John Hotham
a traitor. 4 Rushw., 586.) So, when a Member stood indicted for felony,
it was adjudged that he ought to remain of the House till
conviction;\1\ for it may be any man's case, who is guiltless, to be
accused and indicted of felony, or the like crime. (23 El., 1580;
D'Ewes, 283, col. 1; Lex Parl., 133.)
1261. Two Members were expelled for treason, and the House ordered
the governors of their respective States to be notified.--On December
2, 1861,\2\ Mr. Francis P. Blair, jr., of Missouri, offered this
resolution, which was agreed to by a two-thirds vote:
Resolved, That John W. Reid, a Member of the House of Representatives
from the Fifth district of the State of Missouri, having taken up arms
against the Government of the United States, is hereby expelled from
the House, and the Speaker of the House is required to notify the
Governor of the State of Missouri of the fact.
-----------------------------------------------------------------------
\1\ In the Fifty-ninth Congress a Member of the Senate and a Member
of the House were indicted and convicted, but appealed. The Senate took
action which precipitated the Senator's resignation, but the House did
not act pending the Member's appeal.
\2\ Second session Thirty-seventh Congress, Journal, p. 8; Globe, p.
5.
Sec. 1262
On December 3, 1861,\1\ Mr. W. McKee Dunn, of Indiana, offered the
following preamble and resolutions, which were agreed to by a two-
thirds vote:
Whereas Henry C. Burnett, a Member of this House from the State of
Kentucky, is in open rebellion against the Government of the United
States; therefore,
Resolved, That said Burnett be, and he is hereby, expelled from this
House, and that the governor of the State of Kentucky be notified of
his expulsion.
Resolved, That the Sergeant-at-Arms of this House be directed not to
pay to said Burnett his salary accrued since the close of the extra
session of this Congress.
1262. A Member-elect, who had not taken the oath, was expelled from
the House for treason.--On July 13, 1861,\2\ Mr. Francis P. Blair, jr.,
of Missouri, as a question of privilege, submitted the following
preamble and resolution:
Whereas John B. Clark was elected a Representative in the Thirty-
seventh Congress from the Third Congressional district of the State of
Missouri on the first Monday of August in the year 1860; and whereas
since that time the said John B. Clark has taken up arms against the
Government of the United Statesand holds a commission in what is known
as the State guard of Missouri, under the rebel governor of that State,
and took part in the engagement at Booneville against the United States
forces; therefore,
Resolved, That John B. Clark has forfeited all right to sit as a
Representative in the Thirty-seventh Congress, and is hereby expelled
and declared to be no longer a Member of this House.
The debate was very brief, being limited by the previous question.
Mr. Blair, upon his responsibility as a Member, affirmed that the
allegation of the preamble was true. There was some objection that the
case should be considered by a committee; but no one raised the point,
which is apparent from the Journal, that Mr. Clark was a Member-elect
merely, not having appeared and taken the oath.\3\
The resolution of expulsion was agreed to by a two-thirds vote, yeas
94,nays 45.
1263. William Blount, for a high misdemeanor inconsistent with his
public trust and duty, was expelled from the Senate.
The Senate ordered a Senator to attend in his place when a report
relating to charges against him was to be presented.
A committee having recommended the expulsion of a Senator, the Senate
allowed him to be heard by counsel at the bar of the Senate before
action on the report.
A Senator, impeached by the House of Representatives, was arrested by
order of the Senate and released only on surety.
Impeachment proceedings against a Senator were continued after his
expulsion.
The President of the United States transmitted to the Senate a letter
impeaching the conduct of a Senator.
On July 3, 1797,\4\ the Senate received a letter from the President
of the United States, transmitting a letter purporting to have been
written by William Blount, a
-----------------------------------------------------------------------
\1\ Second session Thirty-seventh Congress, Journal, pp. 26, 27;
Globe, p. 7.
\2\ First session Thirty-seventh Congress, Journal, pp. 75, 76;
Globe, pp. 116, 117.
\3\ This session began July 4, 1861. Mr. Clark did not appear with
the other Missouri Members at the time of organization, nor is his
presence recorded subsequently.
\4\ First session Fifth Congress, Senate Journal, p. 383; Annals, p.
34.
Sec. 1263
Senator of the United States, for the purpose of laying plans for the
cooperation of certain Indians of the South with British agents in an
enterprise inimical to the interests of the United States and Spain.
This letter was addressed to one Carey, an employee of the United
States in the Indian country.
The message and papers having been read, the letter was again read to
Mr. Blount, who was absent when it was read a first time. Being
requested to declare whether he was the author of the letter or not,
Mr. Blount observed that he wrote a letter to Carey, but was unable to
say whether the copy was a correct one or not without recurrence to his
papers. Therefore he desired a postponement until the next day, which
was agreed to.
On July 4,\1\ a letter was laid before the Senate from Mr. Blount,
requesting further time. Thereupon the letter and message were referred
to a select committee to consider and report what it was proper for the
Senate to do thereon.
On July 5,\2\ on report from this committee, it was--
Ordered, That the Vice-President notify William Blount, a Senator
from the State of Tennessee, by letter, to attend the Senate.
On July 6,\3\ a further report being made by the committee, Mr.
Blount read in his place a declaration, purporting that he should
attend in his seat from time to time to answer any allegation that
might be brought against him.
Then it was--
Resolved, That Mr. Blount be heard by counsel, not exceeding two, to-
morrow morning at 11 o'clock.
It was further--
Ordered, That the Secretary furnish Mr. Blount with attested copies
of such papers as he may point out respecting the subject this day
reported on by the committee.
On July 7,\4\ the subject being again before the Senate, Mr. Blount
notified the Senate that Jared Ingersoll and Alexander J. Dallas were
the counsel he had employed agreeably to the vote of the Senate.
The President requested Mr. Blount to declare whether or not he was
the author of the letter in question. Mr. Blount declined to answer.
At this point a message was received from the House of
Representatives presenting the impeachment of William Blount for high
crimes and misdemeanors.Thereupon, in accordance with the request of
the House, the said William Blount was sequestered from his seat and
taken into custody. Subsequently he furnished sureties.
On July 8,\5\ Mr. Blount was heard by his counsel, and then the
question was taken on the report of the committee, which was as
follows:
That Mr. Blount, having declined an acknowledgment or denial of the
letter imputed to him, and having failed to appear to give any
satisfactory explanation respecting it, your committee sent for the
original letter, which accompanies this report, and it is in the
following words: (Here follows the letter, the purport of which is
given above.)
Two Senators now present in the Senate have declared to the committee
that they are well acquainted with the handwriting of Mr. Blount, and
have no doubt that this letter was written by him.
-----------------------------------------------------------------------
\1\ Journal, p. 383; Annals, p. 34.
\2\ Journal, p. 385; Annals, p. 35.
\3\ Journal, p. 387; Annals, p. 38
\4\ Journal, p. 388; Annals, p. 38.
\5\ Journal, pp. 390-392; Annals, pp. 40-44
Sec. 1264
Your committee have examined many letters from Mr. Blount to the
Secretaryof War, a number of which are herewith submitted, as well as a
letter addressed by Mr. Blount to Mr. Cocke, his colleague in the
Senate, and to thiscommittee, respecting the business now under
consideration, and find themall to be of the same handwriting with the
letter in question. Mr. Blount has never denied this letter, but, on
the other hand, when the copy transmitted to the Senate was read in his
presence, on the 3d instant, he acknowledged in hisplace that he had
written a letter to Carey, of which he had preserved a copy, but could
not then decide whether the copy read was a true one. Yourcommittee are
therefore fully persuaded that the original letter nowproduced was
written and sent to Carey by Mr. Blount. They also find that this man
Carey to whom it was addressed is, to the knowledge of Mr. Blount, in
the pay and employment of the United States, as their interpreter to
the CherokeeNation of Indians, and an assistant in the public factory
at Tellico Blockhouse. That Hawkins, who is so often mentioned in this
letter as a person who must be brought into suspicion among the Creeks,
and if possible driven from his nation, is the superintendent of Indian
affairs for the United States among the southern Indians, Dinsmore is
agent for the United States for the Cherokee nation, and Dyer one of
the agents in the public factory at TellicoBlockhouse.
The plan hinted at in this extraordinary letter, to be executed under
theauspices of the British, is so capable of different constructions
and conjectures that your committee at present forbear giving any
decided opinion respecting it, except that to Mr. Blount's own mind it
appeared to be inconsistent with the interests of the United States and
of Spain, and he was therefore anxious to conceal it from both. But,
when they consider his attempts to seduce Carey from his duty as a
faithful interpreter, and to employ him as an engine to alienate the
affections and confidence ofthe Indians from the public officers of the
United States residing amongthem, the measures he has proposed to
excite a temper which must produce the recall or expulsion of our
superintendent from the Creek Nation, hisinsidious advice tending to
the advancement of his own popularity andconsequence, at the expense
and hazard of the good opinion which the Indians entertain of this
Government, and of the treaties subsisting between us and them, your
committee have no doubt that Mr. Blount's conduct has beeninconsistent
with his public duty, renders him unworthy of a further continuance of
his present public trust in this body, and amounts to a high
misdemeanor. They therefore unanimously recommend to the Senate an
adoption of the following resolution:
Resolved, That William Blount, esq., one of the Senators of the
UnitedStates, having been guilty of a high misdemeanor, entirely
inconsistent with his public trust and duty as a Senator, be, and he
hereby is, expelled fromthe Senate of the United States.
The question being taken this report was agreed to, yeas 25, nays
1.\1\
The impeachment proceedings against Mr. Blount were proceeded with
afterthe expulsion.
1264. The Senate failed, by one vote, to expel John Smith, charged
withparticipation in a treasonable conspiracy.
A discussion as to whether or not the principles of the procedure of
thecourts should be followed in action for expulsion.
The Senate allowed a member threatened with expulsion to be heard
bycounsel, but did not grant his request for a specific statement of
charges or compulsory process for witnesses.
The Senate having allowed a member to be heard by counsel, exercised
thepower of approving his selections.
The written answer of a Senator to charges made against him was
returned by the Senate because it contained irrelevant matter.
The Senate ordered a Senator to attend in his place when a report
relatingto charges against him was to be presented.
-----------------------------------------------------------------------
\1\ It is evident from the articles of impeachment that Blount was a
Senator at the time of the offense. (Second session Fifth Congress,
House Journal, p. 151.)
Sec. 1264
The Senate did not pursue inquiry as to the charge that Senator John
Smithhad sworn allegiance to a foreign power, the said oath having been
taken before his election as Senator.
Nature and limitations of the constitutional power of expulsion
discussed.
Discussion of the decision of the Senate in the matter of charges
againstHumphrey Marshall, a Senator.
On November 27, 1807,\1\ the Senate, after debate, adopted after
amendment the following resolution proposed by Mr. Samuel Maclay, of
Pennsylvania:
Resolved, That a committee be appointed to inquire whether it be
compatible with the honor and privileges of this House that John Smith,
a Senator from the State of Ohio, against whom bills of indictment were
found at the circuit court of Virginia, held at Richmond in August
last, for treason andmisdemeanor, should be permitted any longer to
have a seat therein; and that the committee do inquire into all the
facts regarding the conduct of Mr. Smith as an alleged associate of
Aaron Burr, and report the same to the Senate.
The following-named Senators were appointed as the committee: John
QuincyAdams, of Massachusetts; Samuel Maclay, of Pennsylvania; Jesse
Franklin, of North Carolina; Samuel Smith, of Maryland; John Pope and
Buckner Thurston, of Kentucky, and Joseph Anderson, of Tennessee.
On December 31,\2\ Mr. Adams announced that the committee were ready
toreport, and made the following motion, which was read and agreed to:
Ordered, That John Smith, a Senator from the State of Ohio., be
notified by the Vice-President to attend in his place.
The Vice-President accordingly notified Mr. Smith in the words
following:
Sir: You are hereby required to attend the Senate in your place
withoutdelay.
By order of the Senate.
Geo. Clinton,
President of the Senate.
John Smith, Esq.,
Senator from the State of Ohio.
And Mr. Smith attended.
Thereupon Mr. Adams reported as follows:
Your committee are of opinion that the conspiracy of Aaron Burr and
hisassociates against the peace, union, and liberties of these States
is of such a character, and that its existence is established by such a
mass of concurring and mutually corroborative testimony that it is
incompatible not only with the honor and privileges of this House, but
with the deepest interests of this nation, that any person engaged in
it should be permitted to hold a seat in the Senate of the United
States.
Whether the facts, of which the committee submit herewith such
evidence as, under the order of the Senate, they have been able to
collect, are sufficient to substantiate the participation of Mr. Smith
in that conspiracy, or not, will remain for the Senate to decide.
The committee submit also to the consideration of the Senate
thecorrespondence between Mr. Smith and them, through their chairman,
in the course of their meetings. The committee have never conceived
themselves invested with authority to try Mr. Smith. Their charge was
to report an opinion relating to the honor and privileges of the Senate
and the facts relating to the conduct of Mr. Smith. Their opinion,
indeed, can not be expressed in relation to the privilege of the Senate
without relating, at the same time, to Mr. Smith's right of holding a
seat in this body; but, inthat respect, the authority
-----------------------------------------------------------------------
\1\ First session Tenth Congress, Senate Journal, p. 197; Annals, p.
39.
\2\ Senate Journal, p. 210; Annals, p. 55.
Sec. 1264
of the committee extends only to proposal, and not to decision. But as
hemanifested a great solicitude to be heard before them, they obtained
permission from the Senate to admit his attendance, communicated to him
the evidence in their possession, by which he was inculpated, furnished
him, in writing, with the questions arising from it which appeared to
them material, and received from him the information and explanations
herewith submitted as part of the facts reported. But Mr. Smith has
claimed as a right to be heard in his defense by counsel, to have
compulsory process for witnesses, and to be confronted with his
accusers, as if the committee had been a circuit court of the United
States. But it is before the Senate itself that your committeeconceived
it just and proper that Mr. Smith's defense of himself should be heard.
Nor have they conceived themselves bound in this inquiry by any other
rules than those of natural justice and equity, due to a brother
Senator on the one part and to their country on the other.
Mr. Smith represents himself on this inquiry as solitary, friendless,
andunskilled, contending for rights which he intimates are denied him;
and the defender of senatorial privileges which he seems apprehensive
will be refused him by Senators, liable, so long as they hold their
offices, to have his casemade their own. The committee are not unaware
that, in the vicissitudes of human events, no member of this body can
be sure that his conduct will neverbe made a subject of inquiry and
decision before the assembly to which hebelongs. They are aware that,
in the course of proceeding which the Senate may now sanction, its
members are marking out a precedent which mayhereafter apply to
themselves. They are sensible that the principles uponwhich they have
acted ought to have the same operation upon their own claims to
privilege as upon those of Mr. Smith; the same relation to the rights
of their constituents which they have to those of the legislature which
herepresents. They have deemed it their duty to advance in the progress
of their inquiry with peculiar care and deliberation. They have dealt
out to Mr. Smith that measure, which, under the supposition of similar
circumstances, they would be content to find imparted to themselves;
and they have no hesitation in declaring that, under such imputations,
colored by such evidence, theyshould hold it a sacred obligation to
themselves, to their fellow-Senators,and to their country, to meet them
by direct, unconditional acknowledgment or denial, without seeking a
refuge from the broad face of day in the labyrinth of technical forms.
In examining the question whether these forms of judicial
proceedings, orthe rules of judicial evidence, ought to be applied to
the exercise of that censorial authority which the Senate of the United
States possesses over the conduct of its members, let us assume, as the
test of their application, either the dictates of unfettered reason,
the letter and spirit of the Constitution, or precedents, domestic or
foreign, and your committee believe that the result will be the same;
that the power of expelling a member must, in its nature, be
discretionary, and in its exercise always moresummary than the tardy
process of judicial tribunals.
The power of expelling a member for misconduct results, on the
principlesof common sense, from the interest of the nation, that the
high trust of legislation should be invested in pure hands. When the
trust is elective it is not to be presumed that the constituent body
will commit the deposite to the keeping of worthless characters. But
when a man, whom his fellow-citizens have honored with their
confidence, on the pledge of a spotless reputation, has degraded
himself by the commission of infamous crimes, which become suddenly and
unexpectedly revealed to the world, defective indeed would be that
institution which should be impotent to discard from its bosom the
contagion of such a member; which should have no remedy of amputation
to apply until the poison had reached the heart.
The question upon the trial of a criminal cause, before the courts
ofcommon law, is not between guilt and innocence, but between guilt and
the possibility of innocence. If a doubt can possibly be raised, either
by theingenuity of the party or of his counsel, or by the operation of
generalrules in their unforeseen application to particular cases, that
doubt must be decisive for acquittal, and the verdict of not guilty,
perhaps, in nine cases out of ten, means no more than that the guilt of
the party has not beendemonstrated in the precise, specific, and narrow
forms prescribed by law. The humane spirit of the laws multiplies the
barriers for the protection of innocence, and freely admits that these
barriers may be abused for the shelter of guilt. It avows a strong
partiality favorable to theperson upon trial, and acknowledges the
preference that ten guilty shouldescape rather than that one innocent
should suffer. The interest of the public that a particular crime
should be punished is but as one to ten compared withthe interest of
the party that innocence should be spared. Acquittal onlyrestores the
party to the common rights of every other citizen; it restores him to
no public trust; it invests him with no public
Sec. 1264
confidence; it substitutes the sentence of mercy for the doom of
justice; and in the eyes of impartial reason, in the great majority of
cases, must be considered rather as a pardon than a justification.
But when a member of a legislative body lies under the imputation
ofaggravated offenses, and the determination upon his cause can operate
only to remove him from a station of extensive powers and important
trust, thisdisproportion between the interest of the public and the
interest of theindividual disappears; if any disproportion exist, it is
of an opposite kind. It is not better that ten traitors should be
members of this Senate than that one innocent man should suffer
expulsion. In either case, no doubt, the evilwould be great. But, in
the former it would strike at the vitals of the nation; in the latter
it might, though deeply to be lamented, only be the calamity of an
individual.
By the letter of the Constitution the power of expelling a Member is
givento each of the two Houses of Congress, without any limitation
other than that which requires a concurrence of two-thirds of the votes
to give it effect.
The spirit of the Constitution is, perhaps, in no respect more
remarkablethan in the solicitude which it has manifested to secure the
purity of the Legislature by that of the elements of its composition. A
qualification of age is made necessary for the Members, to insure the
maturity of their judgment; aqualification of long citizenship, to
insure a community of interests and affections between them and their
country; a qualification of residence, to provide a sympathy between
every Member and the portion of the Union from which he is delegated;
and to guard, as far as regulation can guard, against every bias of
personal interest, and every hazard of interfering duties, it has made
every Member of Congress ineligible to office which he contributed
tocreate, and every officer of the Union incapable of holding a seat in
Congress. Yet, in the midst of all this anxious providence of
legislative virtue, it has not authorized the constituent body to
recall in any case its representative. It has not subjected him to
removal by impeachment; and when the darling of the people's choice has
become their deadliest foe can it enter the imagination of a reasonable
man that the sanctuary of their legislation must remain polluted with
his presence until a court of common law, with its pace of snail, can
ascertain whether his crime was committed on the right or on the left
bank of the river; whether a puncture of difference can be found
between the words of the charge and the words of the proof; whether the
witnesses of his guilt should or should not be heard by his jury; and
whether he was punishable, because present at an overt act, or
intangible to public justice, because he only contrived and prepared
it? Is it conceivable that a traitor to that country which has loaded
him with favors, guilty to the common understanding of all mankind,
should be suffered to return unquestioned to that post of honor and
confidence, where, in the zenith of his good fame, he had been placed
by the esteem of his countrymen, and in defiance of their wishes, in
mockery of their fears, surrounded by the public indignation, but
inaccessible to its bolt, pursue the purposes of treason in the heart
of the national councils? Must the assembled rulers of the land listen
with calm and indifference, session after session, to the voice of
notorious infamy, until the sluggard step of municipal justice can
overtake his enormities? Must they tamely see the lives and fortune of
millions, the safety of present and future ages, depending upon his
vote, recorded with theirs, merely because the abused benignity of
general maxims may have remitted to him the forfeitureof his life?
Such, in very supposable cases, would be the unavoidable consequences
of aprinciple which should offer the crutches of judicial tribunals as
an apology for crippling the Congressional power of expulsion. Far
different, in theopinion of your committee, is the spirit of our
Constitution. They believethat the very purpose for which this power
was given was to preserve the Legislature from the first approaches of
infection. That it was made discretionary because it could not exist
under the procrastination of general rules; that its process must be
summary, because it would be rendered nugatory by delay.
Passing from the constitutional view of the subject to that which
isafforded by the authority of precedent your committee find that,
since the establishment of our present National Legislature, there has
been but one example of expulsion from the Senate. In that case the
Member implicated was called upon, in the first instance, to answer
whether he was the author of a letter, the copy of which only was
produced, and the writing of which was the cause of his expulsion. He
was afterwards requested to declare whether he was the author of the
letter itself, and declining in both cases to answer, the fact of his
having written it was established by a comparison of his handwriting,
and by the belief of persons who had seen him write, upon inspection of
the letter. In all these points the committee perceive the admission of
a species of evidence which in courts of criminal jurisdiction would be
excluded, and, in the resolution of expulsion, the Senate declared the
person inculpated guilty of a high misdemeanor,
Sec. 1264
although no presentment or indictment had been found against him, and
noprosecution at law was ever commencedupon the case.
This event occurred in July, 1797. About fifteen months before that
time,upon an application from the legislature of Kentucky, requesting
an investigation by the Senate of a charge against oneof the Members
from that State, ofperjury, which had been made in certain newspaper
publications, but forwhich no prosecution had beencommenced, the Senate
did adopt, by a majority of 16 votes to 8, the reportof a committee,
purporting that the Senate had no jurisdiction to try the charge, and
that the memorial of the Kentucky legislature should be dismissed.There
were, indeed, very sufficient reasons of a different kind assigned
inthe same report for not pursuing theinvestigation, in that particular
case, any further; and your committeebelieve that in the reasoning of
that reportsome principles were assumed and some inferences drawn which
werealtogether unnecessary for the determinationof that case, which
were adopted without a full consideration of all theirconsequences, and
the inaccuracy of whichwere clearly proved by the departure from them
in the instance which was sosoon afterwards to take place. It wasthe
first time that a question of expulsion had ever been agitated
inCongress since the adoption of the Constitution.And the subject,
being thus entirely new, was considered perhaps too muchwith reference
to the particularcircumstances of the moment and not enough upon the
numerous contingenciesto which the general question mightapply. Your
committee state this opinion with some confidence, because ofthe
sixteen Senators who, in March,1796, voted for the report dismissing
the memorial of the Kentuckylegislature, eleven, on the subsequent
occasion,in July, 1797, voted also for that report, which concluded
with aresolution for the expulsion of Mr. Blount. The otherfive were no
longer present in the Senate. Yet, if the principles advancedin the
first report had been assumed as theground of proceeding at the latter
period, the Senate would have been asimpotent of jurisdiction upon the
offense ofMr. Blount as they had supposed themselves upon the
allegation against Mr.Marshall.
Those parts of the fifth and sixth articles, amendatory to
theConstitution, upon which the report in the case of Mr.Marshall
appears to rely for taking away the jurisdiction of the Senate,your
committee suppose, can only beunderstood as referring to prosecutions
at law. To suppose that they wereintended as restrictions upon
powersexpressly granted by the Constitution to the Legislature, or
either of itsbranches, would, in a manner, annihilate thepower of
impeachment as well as that of expulsion. It would lead to theabsurd
conclusion that the authority given for the purpose of removing
iniquity from the seats of power should be denied its exercise in
precisely those cases which most loudly called for its energies. It
would present the singular spectacle of a legislature vested with
powers of expelling its members, of impeaching, removing, and
disqualifying public officers for trivial transgressions beneath the
cognizance of the law, yet forbidden to exert them against capital or
infamous crimes.
Those two articles were in substance borrowed from similar
regulationscontained in that justly celebrated statute which for so
many ages has been distinguished by the name of the Great Charter of
England. Yet in that country, where they are recognized as the most
solid foundations of the liberties of the nation, they have never been
considered as interfering with the power of expelling a member,
exercised at all times by the House of Commons; a power which there,
however, rests only upon parliamentary usage, and hasnever been
bestowed, as in theConstitution of the United States, by any act of
supreme legislation. From anumber of precedents which have
beenconsulted, it is found that the exercise of this authority there
has alwaysbeen discretionary, and its process alwaysfar otherwise than
compendious in the prosecutions before the judicialcourts. So far,
indeed, have they been fromsupposing a conviction at law necessary to
precede a vote of expulsion,that, in one instance, a resolution to
demanda prosecution appears immediately after the adoption of the
resolution toexpel. In numerous cases the Membersubmits to examination,
adduces evidence in his favor, and has evidenceproduced against him,
with or withoutformal authentication; and the discretion of the House
is not evenrestricted by the necessary concurrence of morethan a bare
majority of the votes.
The provision in our Constitution which forbids the expulsion of a
Memberby an ordinary majority, and requires forthis act of rigorous and
painful duty the assent of two-thirds, yourcommittee consider as a wise
and sufficient guardagainst the possible abuse of this legislative
discretion. In times of heatand violent party spirit, the rights of
theminority might not always be duly respected, if a majority could
expeltheir Members under no other control than thatof their own
discretion. The operation of this rule is of great efficacy,both over
the proceedings of the whole bodyand over the conduct of every
individual Member. The times when the mostviolent struggles of
contending partiesoccur--when the conflict of opposite passions is most
prone to excess--areprecisely the times when the numbers aremost
Sec. 1264
equally divided. When the majority amounts to the proportion of two-
thirds,the security in its own strength is of itselfa guard against
extraordinary stretches of power; when the minoritydwindles to the
proportions of one-third, itsconsciousness of weakness dissuades from
any attempts to encroach upon therights of the majority, which
mightprovoke retaliation. But if expulsion were admissible only as a
sequel tothe issue of a legal prosecution, or upon thesame principles
and forms of testimony which are established in thecriminal courts,
your committee can see nopossible reason why it should be rendered
still more imbecile by therequisition of two-thirds to give it effect.
It is now the duty of your committee to apply the principles which
theyhave here endeavored to settle and elucidateto the particular case
upon which the Senate have directed them to report.The bills of
indictment found against Mr.Smith at the late session of the circuit
court of the United States atRichmond (copies of which are
herewithsubmitted) are precisely similar to those found against Aaron
Burr. Fromthe volume of printed evidencecommunicated by the President
of the United States to Congress, relating tothe trial of Aaron Burr,
it appears that agreat part of the testimony which was essential to his
conviction, upon theindictment for treason, was withheld fromthe jury
upon an opinion of the court that Aaron Burr, not having beenpresent at
the overt act of treason alleged inthe indictment, no testimony
relative to his conduct or declarationselsewhere, and subsequent to the
transactions onBlennerhassett's Island, could be admitted. And in
consequence of thissuppression of evidence the traverse juryfound a
verdict ``that Aaron Burr was not proved to be guilty, under
thatindictment, by any evidence submitted tothem.'' It was also an
opinion of the court that none of the transactions,of which evidence
was given on the trial ofAaron Burr, did amount to an overt act of
levying war, and, of course, thatthey did not amount to treason.
Thesedecisions, forming the basis of the issue upon the trials of
Burr,anticipated the event which must have awaited thetrials of the
bills against Mr. Smith, who, from the circumstances of hiscase, must
have been entitled to the benefit oftheir application; they were the
sole inducements upon which the counselfor the United States abandoned
theprosecution against him.
Your committee are not disposed now to question the correctness of
thesedecisions on a case of treason before acourt of criminal
jurisdiction. But whether the transactions proved againstAaron Burr did
or did not amount, intechnical language, to an overt act of levying
war, your committee have nota scruple of doubt on their minds that,
butfor the vigilance and energy of the Government and of faithful
citizensunder its directions, in arresting their progressand in
crushing his designs, they would in a very short lapse of time
haveterminated not only in a war, but in a warof the most horrible
description, in a war at once foreign and domestic. Aslittle hesitation
have your committee insaying that, if the daylight of evidence,
combining one vast complicatedintention, with overt acts innumerable,
be notexcluded from the mind by the curtain of artificial rules, the
simplestunderstanding can not but see what the subtlestunderstanding
can not disguise--crimes before which ordinary treasonwhitens into
virtue; crimes of which war is themildest feature. The debauchment of
our Army, the plunder and devastationof our own and foreign
territories, thedissolution of our national Union, and the root of
interminable civil war,were but the means of individualaggrandizement,
the steps to projected usurpation. If the ingenuity of ademon were
tasked to weave into onecomposition all the great moral and political
evils which would beinflicted upon the people of these States, it
couldproduce nothing more than a texture of war, dismemberment, and
despotism.
Of these designs, a grand jury, composed of characters as respectable
asthis nation can boast, have, upon thesolemnity of their oaths,
charged John Smith with being an accomplice. Thereasons upon which the
trial of thischarge has not been submitted to the verdict of a jury
have been shown byyour committee, and are proved by theletter from the
attorney of the United States for the district of Virginia,herewith
reported. And your committee are ofthe opinion that the dereliction of
the prosecution on these grounds cannot, in the slightest degree,
remove theimputation which the accusations of the grand jury have
brought to the doorof Mr. Smith.
Your committee will not permit themselves to comment upon the
testimonywhich they submit herewith to the Senate,nor upon the answers
which Mr. Smith has given as sufficient for hisjustification. Desirous
as the committee havebeen that this justification might be complete,
anxiously as they wishedfor an opportunity of declaring their belief
ofhis innocence, they can neither control nor dissemble the operation
of theevidence upon their minds; and, howeverpainful to their feelings,
they find themselves compelled, by a sense ofduty, paramount to every
other consideration,to submit to the Senate, for their consideration,
the following resolution:
Sec. 1264
``Resolved, That John Smith, a Senator from the State of Ohio, by
hisparticipation in the conspiracy of Aaron Burragainst the peace,
union, and liberties of the people of the United States,has been guilty
of conduct incompatiblewith his duty and station as a Senator of the
United States. And that he betherefore, and hereby is, expelled fromthe
Senate of the United States.''
Mr. Adam also submitted a further report, made in response to
asupplemental direction of the Senate, in relation toan allegation that
John Smith had taken the oath of allegiance to the Kingof Spain. But as
inquiry had shown theoath to have been taken previously to the election
of Mr. Smith, no furtherorder was taken on this charge.
Mr. Smith at this time submitted an answer, but as a portion of this
answercontained irrelevant charges againstJudge Nimmo, the answer was
returned in orderthat those portions might be expunged.
On January 4 \1\ the President of the Senate communicated the revised
answerof Mr. Smith in the form of a letter.This letter was read on the
7th, and represented that all the evidenceadduced by the committee,
excepting two billsof indictment, was either taken ex parte or without
allowing Mr. Smithsufficient time to interrogate the witnesses. Itasked
for the aid of counsel, for time, and for the means of adducing proofin
his defense. It admitted that there wasno necessity for a legal
conviction previous to the expulsion of a Memberfrom the Senate, but
contended that proofof the facts charged must be first established in a
legal way, and thatthen the Senate could only exercise its legalright
of expulsion.
Mr. Smith thereupon arose and submitted his request in the form of
thefollowing motion:
That John Smith be informed specifically of the charges against him;
that he be allowed to make a defense againstsuch charges, and have
process to compel the attendance of witnesses, andthe privilege of
being heard by counsel.
After debate on this request, the Senate unanimously agreed to the
following resolution:
Resolved, That Mr. Smith be heard by counsel, not exceeding two, to
show cause why the report of the committeeshould not be adopted.
The other requests were not allowed, the debate showing the opinion
on thepart of Senators that they were not inaccordance with the dignity
of the Senate and the propriety of proceeding.
On January 13 \2\ Mr. Smith informed the Senate that he had engaged
LutherMartin and Francis S. Key as hiscounsel. A question being taken
on agreeing to these as counsel, Mr. Keywas accepted by the Senate and
Mr. Martin was rejected. Subsequently Mr. R. G. Harper was admitted as
counsel.
Mr. Smith then by his counsel offered an affidavit setting forth the
facts which he claimed he could prove inexculpation, and also submitted
a request for an extension of time in whichto obtain testimony.
Time was allowed and the case continued, with the presentation of
testimony and affidavits, until April 5 and 6,\3\ when the case was
argued before the Senate by
-----------------------------------------------------------------------
\1\ Senate Journal, pp. 211, 213; Annals, pp. 66-78.
\2\ Senate Journal, p. 217; Annals, p. 82.
\3\ Senate Journal, pp. 260, 261; Annals, pp. 186-234.
Sec. 1265
counsel. Thereafter the case was debated at length until April 9,\1\
when the vote was taken on the resolution proposed by the committee.
And there were yeas 19, nays 10, not the required two-thirds, and the
resolution was not agreed to.
1265. In the early days of the secession movement a question arose as
tothe right to expel a defiant Senatorrepresenting a seceding State.--
On March 8, 1861,\2\ Mr. Lafayette S. Foster,of Connecticut, proposed
the following inthe Senate:
Whereas L. T. Wigfall, now a Senator of the United States from the
Stateof Texas, has declared in debate that heis a foreigner; that he
owes no allegiance to this Government, but that hebelongs to and owes
allegiance to anotherand foreign state and government; Therefore
Resolved, That the said L. T. Wigfall be, and he hereby is, expelled
from this body.
Mr. Thomas L. Clingman, of North Carolina, moved to amend the
resolution bystriking out all after the word ``whereas'' and in lieu
thereof inserting:
It is understood that the State of Texas has seceded from the Union
and isno longer one of the United States: Therefore
Resolved, That she is not entitled to be represented in this body.
A debate arose over the question, it being contended by Mr. Clingman
andothers that expulsion was punitive andthat it was improper to expel
a Senator for words spoken in debate; that ifMr. Wigfall actually was a
foreigner it wasa question going to qualifications and should be dealt
with by anotherprocess.
Finally, by a vote of yeas 28, nays 16, the Senate proceeded to
executivebusiness.
1266. By a single resolution the Senate expelled several Senators for
atreasonable conspiracy against theGovernment.--On July 10, 1861,\3\
Mr. Daniel Clark, of New Hampshire, proposedthe following in the
Senate:
Whereas a conspiracy has been formed against the peace, union, and
libertiesof the people and Government of theUnited States, and in
furtherance of such conspiracy a portion of thepeople of the States of
Virginia, NorthCarolina, South Carolina, Tennessee, Arkansas, and Texas
have attempted towithdraw those States from the Union,and are now in
arms against the Government; and
Whereas James M. Mason and Robert M. T. Hunter, Senators from
Virginia;Thomas L. Clingman and Thomas Bragg,Senators from North
Carolina; James Chestnut, jr., a Senator from SouthCarolina; A. O. P.
Nicholson, a Senatorfrom Tennessee; William K. Sebastian and Charles B.
Mitchel, Senators fromArkansas, and John Hemphill andLouis T. Wigfall,
Senators from Texas, have failed to appear in their seatsin the Senate,
and to aid the Governmentin this important crises, and it is apparent
to the Senate that saidSenators are engaged in said conspiracy for
thedestruction of the Union and Government, or with full knowledge of
suchconspiracy have failed to advise theGovernment of its progress or
aid in its suppression: Therefore
Resolved, That the said Mason, Hunter, Clingman, Bragg,
Chestnut,Nicholson, Sebastian, Mitchel, Hemphill, andWigfall be, and
they hereby are, each and all of them, expelled from theSenate of the
United States.
On July 11 the resolution was debated, and Mr. Milton S. Latham,
ofCalifornia, moved to amend the resolution byinserting before the word
``said,'' in the second line, the words ``names of,'' and by striking
out the words ``expelledfrom the
-----------------------------------------------------------------------
\1\ Senate Journal, p. 263; Annals, pp. 238-323.
\2\ Globe, second session Thirty-sixth Congress, pp. 1446-1451;
ElectionCases, Senate Document 11, specialsession Fifty-eighth
Congress, p. 954.
\3\ First session Thirty-seventh Congress, Globe, pp. 40, 62-64;
ElectionCases, Senate Document 11, specialsession Fifty-eighth
Congress, p. 957.
Sec. 1267
Senate of the United States,'' and inserting ``stricken from the roll,
and their seats declared vacant,'' so that the resolution will read:
Therefore resolved, That the names of said Mason, Hunter, Clingmam,
Bragg, Chestnut, Nicholson, Sebastian, Mitchel, Hemphill, and Wigfall
be, and they hereby are, each and all of them, stricken from the roll,
and their seatsdeclared vacant.
This amendment was disagreed to, yeas 11, nays 32.
Then the resolution as originally presented was agreed to, yeas 32,
nays 10.
1267. For bearing arms against the Government John C. Breckinridge
wassummarily expelled from the Senate.--On December 4, 1861,\1\ Mr.
Zachariah Chandler, of Michigan, in the Senate, submitted the following
resolution for consideration:
Resolved, That John C. Breckinridge be, and he hereby is, expelled
from the Senate.
The Senate proceeded, by unanimous consent, to consider the
resolution;and the same having been amended, on the motion of Mr.
Trumbull, to read as follows:
Whereas John C. Breckinridge, a Member of this body from the State of
Kentucky, has joined the enemies of his country, and is now in arms
against the Government he has sworn to support: Therefore
Resolved, That said John C. Breckinridge, the traitor, be, and he
hereby is, expelled from the Senate.
On the question to agree to the resolution as amended it was
determined inthe affirmative, yeas 37, nays none.
1268. ``For sympathy with and participation in the rebellion'' a
Senator was expelled, after examination of his case by a committee.--On
December 10, 1861,\2\ Mr. Solomon Foote, of Vermont, presented the
following resolution, which on the subsequent day was referred to the
Committee on the Judiciary, withinstructions to inquire into the facts:
Resolved, That Waldo P. Johnson, a Senator from the State of
Missouri, by his sympathy with and participation in the rebellion
against the Government of the United States has been guilty of conduct
incompatible with his duty andstation as a Senator; and that he be
therefor, and hereby is, expelled fromthe Senate of the United States.
On January 9, 1862, Mr. Lyman Trumbull, of Illinois, presented
thefollowing report:
The Committee on the Judiciary, to whom was referred a resolution for
theexpulsion from the Senate of Waldo P. Johnson, a Senator from the
State of Missouri, submit the following report:
Previous to his election to the Senate Mr. Johnson was known in
Missouri as entertaining secession proclivities, and to sympathize and
cooperate with the prominent citizens of that State who are now in open
rebellion against the Government. He was elected to the Senate by a
legislature which has since sought to array the State against the
Union. Since his election he is reported to have made a speech evincing
a spirit hostile to the Government, which speech was extensively
published in the State of Missouri without public contradiction from
him. He has not appeared in his seat in the Senate since the session
began; and though the resolution for his expulsion was proposed in the
Senate on the 10th day of December and referred to this committee on
the 12th day of December, 1861, and has been
-----------------------------------------------------------------------
\1\ Second session Thirty-seventh Congress; Election Cases, Senate
Document No. 11, special session Fifty-eighth Congress, p. 959.
\2\ Second session Thirty-seventh Congress; Election Cases, Senate
Document No. 11, special session Fifty-eighth Congress, p. 962.
Sec. 1269
extensively published in Missouri and other parts of the Union, the
said Johnson has wholly failed to furnish any reason for his absence,
or explanation of the charges of disloyalty urged against him.
The failure of said Johnson for so long a period to appear in his
place to discharge the high duties incumbent upon him for the
preservation of the Republic in this time of rebellion against its
authority, and his silence under the imputations upon his loyalty
which, from their publicity, could not have escaped his notice if
within a loyal portion of the Union, of themselves furnish strong
presumptive grounds against his fidelity to the Government.
His whereabouts at this time the committee have been unable, with
actual certainty, to ascertain. They are satisfied that, had he been so
disposed, there was nothing to prevent his attendance on the Senate at
its commencement; and when last heard from he was reported to have gone
voluntarily within the lines of rebels in arms against the Government.
Under these circumstances, the committee are of the opinion that he
ought to be expelled from the body, and they accordingly report the
resolution back to the Senate with a recommendation that it do pass.
The resolution was agreed to by the Senate, yeas 35, nays 0.
1269. For a letter implying friendship with the foes of the
Government Jesse D. Bright was expelled from the Senate.
The nature and method of exercise of the power of expulsion discussed
bythe Senate.
A Senator was present during consideration of a resolution for his
ownexpulsion, and participated in the debate.
On December 16, 1861,\1\ Mr. Morton S. Wilkinson, of Minnesota,
presented the following in the Senate:
Whereas the Hon. Jesse D. Bright heretofore, on the 1st day of March,
1861, wrote a letter, of which the following is a copy:
``Washington, March 1, 1861.
``My Dear Sir: Allow me to introduce to your acquaintance my friend,
Thomas B. Lincoln, of Texas. He visits your capital mainly to dispose
of what he regards a great improvement in firearms. I commend him to
your favorableconsideration as a gentleman of the first respectability,
and reliable inevery respect.
``Very truly, yours,
``Jesse D. Bright.
``To His Excellency Jefferson Davis,
``President of the Confederation of States.''
And whereas we believe the said letter is evidence of disloyalty to
the United States, and is calculated to give aid and comfort to the
public enemies: Therefore,
Resolved, That the said Jesse D. Bright be expelled from his seat in
the Senate of the United States.
At the same time another letter of Air. Bright, explanatory of
hisopposition to coercive measures by the Government, and declaring his
support of the Union, was presented, and, with the resolution, was
referred to the Committee on the Judiciary.
On January 13, 1862,\2\ Mr. Edgar Cowan, of Pennsylvania, submitted
thefollowing report:
The Committee on the Judiciary, to whom was referred a resolution to
expel the Hon. Jesse D. Bright from his seat in the United States
Senate, respectfully report:
That they are of opinion that the facts charged against Mr. Bright
are not sufficient to warrant his expulsion from the Senate; and they
therefore recommend that the resolution do not pass.
-----------------------------------------------------------------------
\1\ Second session Thirty-seventh Congress, Globe, p. 89; Election
Cases, Senate Document No. 11, special session Fifty-eighth Congress,
p. 964.
\2\ Globe, P. 287.
Sec. 1269
The committee, however, were not unanimous. Mr. Lyman Trumbull, of
Illinois, chairman, stated in debate \1\ that the letter seemed to
imply, not an expression of opinion, but a distinct act of hostility to
the Government in time of war.
Speaking on January 21,\2\ Mr. Charles Sumner, of Massachusetts,
cited the cases of Blount and Smith in support of his contention that
in a case of expulsion the Senate was not governed by judicial rules,
and was at liberty to exercise a discretion unknown to judicial bodies.
Speaking on January 25,\3\ Mr. Garrett Davis, of Kentucky, said:
Whenever a Member of this House forms opinions, and in his
officialcharacter and acts carries out those opinions, positively or
negatively, in such a manner as to render him an unfit and unsafe
member of the Senate, he becomes a proper subject of removal from the
body. * * * There is no common law, no statutory law, there is no
parliamentary law that binds the Senate to any particular definition of
crime or offense in acting in this or any other case of the kind.
Mr. Davis, acting in harmony with these principles, proposed the
expulsionfully as much because Mr. Bright opposed the conduct of the
Administration as for the writing of the letter. Those opposing
expulsion, notably Mr. Edgar Cowan, of Pennsylvania,\4\ urged that the
issue should be confined strictly to the letter, and that it should be
interpreted in view of the state of affairs existing when it was
written. Mr. Sumner had conceived that Jefferson Davis and his
associates were public, open, unequivocal traitors at the time the
letter was written, and that the letter was intended to aid the
treason. Mr. Cowan conceived that it was a mere letter of introduction
given without treasonable intent.
Mr. James A. Bayard, of Delaware, speaking on February 5,\5\ while
admitting that by the terms of the Constitution the power of expulsion
was absolute in two-thirds of the members, held that it was none the
less a judicial action, and the great leading principles of evidence
could not be abandoned. Difference of opinion would not justify
expulsion. In the case of Smith and Blount they were charged with
distinct and specific acts of criminal misconduct. They were also
defended by counsel. In this case Mr. Bayard conceived that there was
no treasonable intent or act.
The debate on the report extended through January 20-31, and February
4 and 5.\6\ Mr. Bright had no counsel, but was present during the
debate and participated in it freely.
On March 5 the question was taken on agreeing to the resolution
proposed by Mr. Wilkinson, and it was agreed to, yeas 32, nays 14. So
Mr. Bright was expelled.
The following was then agreed to:
Ordered, That the Vice-President be requested to transmit to the
executive of the State of Indiana a copy of the resolution expelling
Jesse D. Bright from the Senate, attested by the Secretary of the
Senate.
-----------------------------------------------------------------------
\1\ Globe, p. 396.
\2\ Globe, p. 413.
\3\ Globe, pp. 434, 435.
\4\ Globe, p. 471.
\5\ Globe, pp. 647, 648.
\6\ Globe, pp. 391-398, 412-419, 431-435, 447-454, 470, 539, 545,
559-564,582-592, 622-629, 644-655; Appendix, pp. 37-42.
Sec. 1270
1270. For expressions hostile to the Government, absence from his
seat, and presence within the lines of the enemy, Trusten Polk was
expelled from the Senate.
A Member of the Senate being expelled, the Senate notified the
governor of his State.
On December 18, 1861,\1\ in the Senate, Mr. Charles Sumner, of
Massachusetts, submitted the following resolution, which was referred
to the Committee on the Judiciary:
Resolved, That Trusten Polk, of Missouri, now a traitor to the United
States, be expelled, and he hereby is, expelled, from the Senate.
On January 9, 1862, Mr. John C. Ten Eyck, of New Jersey, presented,
fromthe Committee on the Judiciary, the following report:
The Committee on the Judiciary, to whom was referred the resolution
of the Senate for the expulsion of Trusten Polk, a Senator from the
State of Missouri report:
That it appears to the satisfaction of the committee that Trusten
Polkrecently, and since the commencement of the present rebellion, in a
letter transmitting pecuniary means to aid in the publication of a
secession newspaper in southwestern Missouri, among other disloyal and
treasonable expressions used the following: ``Dissolution is now a
fact; not only a fact accomplished, but thrice repeated. Everything
here looks like inevitable and final dissolution. Will Missouri
hesitate a moment to go with her Southern sisters? I hope not. Please
let me hear from you. I would be glad to keep posted as to the
condition of things in southwest Missouri. I like Governor Jackson's
position. It looks like adherence to the `Jackson resolutions.' ''
That a copy of this letter was published in full in the Congressional
Globe of the 19th of December last, the day after the resolution of
expulsion in this case was introduced in the Senate, and has also, both
before and since that time, been published and referred to in several
other newspapers in Missouri and elsewhere and widely circulated
throughout the country, which publication could hardly have failed to
come to the notice of Senator Polk; and yet neither he nor any other
person in his behalf has appeared before the committee to deny the
authenticity of the letter referred to, or attempted in any other way
to deny or explain it, so far as the committee are aware; a course of
conduct deemed to be wholly incompatible with the idea of his
innocence; since an innocent man in his position, according to the
first impulses of a true and loyal heart, would not have suffered a
moment to elapse without flying to his place to deny, if false, so
grave and foul a charge.
That besides this he has not only failed to appear in his seat during
the whole time of the continuance of the present session, now a period
of six weeks, to perform his duty to his State and to the Union on an
occasion of the greatest possible urgency, when the votes as well as
counsel of every true and loyal Senator were eminently needed in
providing for the public welfare and in putting down a fierce rebellion
threatening the very existence of the Union, but, on the contrary, as
the committee are fully satisfied on information derived from reliable
official and other sources in Missouri, has left his home in St. Louis
and gone clandestinely within the lines of the enemy, now in open armed
rebellion against the United States, whose Constitution he, as Senator,
has solemnly sworn to support.
The committee, under this state of facts, are of opinion that justice
to the Senate, to rid its roll of his name as well as the Chamber of
his presence; justice to the State of Missouri, whose high commission
he has dishonored, and justice to the Union, which he has sought to
betray, all require that he should no longer continue a member of this
body.
They therefore respectfully report the resolution for the expulsion
of Trusten Polk, a Senator from Missouri, back to the Senate, with the
unanimous recommendation that the same do pass.
On agreeing to the resolution, there appeared--yeas 36, nays 0.
-----------------------------------------------------------------------
\1\ Second session Thirty-seventh Congress; Election Cases, Senate
Document No. 11, special session, p. 960.
Sec. 1271
Thereupon, on motion of Mr. Lyman Trumbull, of Illinois--
Ordered, That the Vice-President be requested to transmit to the
governor of the State of Missouri copies of the resolutions expelling
Waldo P. Johnson and Trusten Polk from the Senate, attested by the
Secretary of the Senate.
1271. The Senate did not consider Lazarus W. Powell worthy of
expulsionbecause he had formerly counseled his State to be neutral
between the Government and its enemies.--On February 20, 1862,\1\ in
the Senate, Mr. Morton S. Wilkinson, of Minnesota, proposed the
following, which was referred to the Committee on the Judiciary:
Whereas Lazarus W. Powell, a Senator from the State of Kentucky,
after 11 States had published their ordinances of secession by which to
sever themselves from the Government of the United States, had formed a
confederation and provisional government, and made war upon the United
States, did, on the 20th day of June last, at the city of Henderson, in
the State of Kentucky, attend a large Southern States' rights
convention, over which he was called to and did preside; and, on taking
his seat as president thereof, made a speech, in which he stated the
object of said convention, and then appointed a committee, which
reported to said convention a long series of resolutions that were
unanimously adopted by it. Among those resolutions are the following:
``2. That the war being now waged by the Federal Administration
against the Southern States is in violation of the Constitution and
laws, and has already been attended with such stupendous usurpations as
to amaze the world and endanger every safeguard of constitutional
liberty.
* * * * * * *
``That the recall of the invading armies and the recognition of the
separate independence of the Confederate States is the true policy to
restore peace and preserve the relations of fraternal love and amity
between the States.
* * * * * * *
``6. That we heartily approve the refusal of Governor Magoffin to
furnish Kentucky troops to subjugate the South; and we cordially
indorse his recent proclamation defining the position of Kentucky, in
accordance with the sentiment of her people, and forbidding the
invasion of Kentucky by Federal or Confederate troops.
``7. That, although Kentucky has determined that her proper position
at present is that of strict neutrality between the belligerent
sections, yet, if either of them invade her soil against her will, she
ought to resent and repel it by necessary force.''
The pith of Governor Magoffin's proclamation, which that convention
so cordially approved, is embodied in this paragraph: ``I hereby notify
and warn all other States, separate or united, especially the United
and Confederate States, that I solemnly forbid any movement upon
Kentucky soil, or occupation of any part or place therein, for any
purpose whatever, until authorized by invitation or permission of the
legislative and executive authorities. I especially forbid all citizens
of Kentucky, whether in the State guard or otherwise, from making any
hostile demonstration against any of the aforesaid sovereignties; to be
obedient to the orders of lawful authorities; to remain quietly and
peaceably at home when off of military duty, and refrain from all words
and acts likely to provoke a collision, and so otherwise to conduct
themselves that the deplorable calamity of invasion may be averted;
but, in the meantime, to make prompt and efficient preparation to
assume the paramount and supreme law of self-defense, and strictly of
self-defense alone.''
The closing speech of this convention was made by Senator Powell, and
the resolutions passed by it and a summary statement of its proceedings
were signed by him as its president.
On the 10th of September last, whilst the legislature of Kentucky was
in session in the town of Frankfort, and after her territory had been
invaded at two distant points by the Confederate armies, and whilst
Humphrey Marshall was employed in organizing and drilling an aimed body
of rebels in
-----------------------------------------------------------------------
\1\ Second session Thirty-seventh Congress, Globe, p. 891; Election
Cases, Senate Document No. 11, special session Fifty-eighth Congress,
p. 891.
Sec. 1271
the contiguous county of Owen, a large Southern States' rights
conventionassembled and held its sessions in Frankfort for the apparent
purpose of overawing the legislature, controlling its deliberations.
and deterring it from passing measures to support the Union and the
Government of the United States, Lazarus W. Powell was a delegate to
that convention from the county of Henderson, and was appointed on its
committee of resolutions. Among other resolutions, that committee
reported these:
``Resolved, That every material interest of Kentucky, as well as the
highest dictates of patriotism, demand that peace should be maintained
within her borders, and this convention solemnly pledges the honor of
its members to do all in their power to promote this end.
``2. That it is the deliberate sense of this convention, and it is
believed of an overwhelming majority of the people of Kentucky, that
the best and perhaps the only mode of effecting this great object is by
adhering strictly, rigidly, and impartially to her chosen and often
declared position of neutrality during the existence of the deplorable
war now raging between the sections, taking sides neither with the
Government nor with the seceding States, and declaring her soil must be
preserved inviolate from the armed occupation of either.
* * * * * * *
``9. That we consider it incompatible with the neutrality avowed by
Kentucky to vote money for the prosecution of the civil war, or to tax
the people of the State, or augment its debt for a purpose so unwise
and for a cause so hopeless as the military subjugation of the
Confederate States.''
This was a convention of most intense secessionists, and was attended
by John C. Breckinridge and many of the leaders of that party from
generally over the State. William Preston and R. W. Wooley, esqs., made
speeches to it fraught with the rankest treason and denouncing the
fiercest war against the United States. Its resolutions were
unanimously adopted, and its business closed with the following one,
offered by Senator Powell:
``Resolved, That Col. William Preston, George W. Johnson, esq.,
General Lucius Desha, Capt. Richard Hawes, and Thomas P. Porter, esq.,
be, and they are hereby, appointed a committee of organization, in
order to carry out the purposes of this convention, and full powers are
conferred upon them for that object.''
Those men were thus commissioned in the cause of conspiracy, treason,
and rebellion. By the warrant given them, on the motion of Senator
Powell, they went forth and organized or advised and assisted in the
organization of armed bands of traitors, and soon thereafter led them
into the Confederate camps, where they are yet struggling to consummate
the disruption of the Union and the overthrow of the Constitution and
laws of the United States. From the beginning of this great rebellion
to the present time Senator Powell has neither done nor said anything
in Congress or out of Congress to strengthen or sustain the United
States in this mighty struggle for national life. Whilst the true and
loyal men of his own State were engaged in an arduous and protracted
struggle to bring her to perform her duty to the Nation and its
government, he not only withheld from them all assistance and sympathy,
but gave to the rebels the moral force of his disloyal position and
opinions, and all the aid and comfort which he could render them short
of the commission of technical treason. His purposes, if not his acts,
have been treasonable. Being an ex-governor of the State of Kentucky
and one of her Senators in Congress, his example and counsel have
doubtless been potential with her people and of mischievous tendency in
other States. Under the false and delusive cry of neutrality and peace,
and the absurd purpose to protect the soil of the State against
invasion from the military force of the United States, he has doubtless
assisted to seduce hundreds and hundreds from loyalty and duty into
rebellion and treason. He has not supported the Constitution of the
United States, but he has sounded the charge to his recruits, and they
have made the overt attack upon it. Wherefore--
Be it resolved, That the said Lazarus W. Powell be, and he is hereby,
expelled from the Senate.
March 7 \1\ there was reference to the subject in debate, and on
March 12 Mr. Lyman Trumbull, of Illinois, chairman of the committee,
reported back the resolution with the recommendation that it do not
pass. On March 14,\2\ at the conclusion of the debate, Mr. Trumbull
gave the reasons for the report:
I consider it due to the committee, whose organ I was in reporting
adversely to the passage of this resolution, simply to state, not by
way of argument, or of provoking reply, the ground upon which the
committee reported adversely to the passage of this resolution. It was
not because the committee
-----------------------------------------------------------------------
\1\ Globe, p. 1112.
\2\ Globe, p. 1234.
Sec. 1272
approved of the doctrine of neutrality in Kentucky. In my judgment that
was a most mischievous position and one wholly untenable, either in
April, or June, or September; but it is known that the people of
Kentucky very generally assumed that ground, and the Government of the
United States, if they did not recognize the neutrality of Kentucky, we
may at least say paid some respect to it. The resolutions that were
adopted, in which they declared that the United States had no right to
pass its troops over the soil of Kentucky, were, in my judgment,
preposterous. It was downright opposition to the constituted
authorities of the Government; wholly unjustifiable. I have no excuse
for it. I think it is without excuse. But, sir, such was the position
of the great body of the people of that State; and many persons now
believe that it was owing to this position of neutrality which was then
assumed that Kentucky has at last arrayed herself on the side of the
Union. I do not think so, but good Union men doubtless did take that
position.
Well, sir, the time came when, notwithstanding Kentucky had assumed
this false attitude, it was necessary that her people should take sides
either with the Government or against those arrayed for its protection.
Some men who got upon this neutrality platform left it sooner than
others; some in June, if you please; some earlier; some stood on it
till September; but when the time came that Kentuckians had to meet
this thing face to face, go with the Government or against it, fight
for one or the other, then, sir, the traitors arrayed themselves, and
undertook to get up a provisional government in the State of Kentucky.
Breckinridge and the traitors alluded to by the Senator on my right
[Mr. Davis] went into the organization; they joined the rebels; the
Senator from Kentucky, whose case is under consideration, came here--
came to the Government of the United States to discharge his duties
here. He does not agree with me in sentiment; his opinions axe not my
opinions; I do not agree with the views that he has so often announced
here; but he is entitled to his own opinions, and no man is to be
expelled from this body because he disagrees with others in opinion.
Since Kentucky assumed this position and took sides with the Union
nothing has been shown to satisfy the committee, at least, that the
Senator from Kentucky has had any communication or done anything to
favor the cause of the rebellion. I think neutrality did favor it; but,
sir, that is over now.
On March 13 and 14 \1\ Mr. Garrett Davis, of Kentucky, urged the
expulsion. He began by showing that the legislature of Kentucky bad
requested Mr. Powell to resign and urged that he had ceased to
represent the will of the loyal people of that State. He also charged
that he was against coercing the seceding States and in favor of their
recognition. He then proceeded to review his record in view of the
events of the war.
On March 14 \2\ the resolution of expulsion was disagreed to, yeas
11, nays 28.
1272. A Senator having used words which might incite treason, a
resolution of expulsion was proposed, but withdrawn after
explanation.--In January, 1864,\3\ a proposition was made in the Senate
to expel Mr. Garrett Davis, of Kentucky, for introducing in the Senate
a resolution containing a sentence as follows:
The people North ought to revolt against their war leaders and take
thisgreat matter into their own hands.
Mr. Davis explained that he did not mean thereby to incite
insurrection. The resolution of expulsion was withdrawn.
1273. The attempt to expel and the censure of B. F. Whittemore in the
Forty-first Congress.
The House provided that a Member whom it was proposed to expel should
beheard in his own defense.
-----------------------------------------------------------------------
\1\ Globe, pp. 1208-1216, 1230-1234.
\2\ Globe, p. 1234.
\3\ First session Thirty-eighth Congress, Globe, pp. 389-394.
Sec. 1273
A Member whose expulsion was proposed was permitted to present a
written defense, but not to depute another Member to speak in his
behalf.
The Speaker, being officially notified that a Member who was
addressing the House had resigned, caused him to cease, and declined to
recognize him further.
A Member may resign without the consent of the House.
A Member threatened with expulsion having resigned, the House ceased
the proceedings of expulsion and censured him.
On February 21, 1870,\1\ Mr. John A. Logan, of Illinois, from the
Committee on Military Affairs, who were instructed to inquire into the
alleged sale of appointments to the Military and Naval Academies by
Members of Congress, submitted a report,\2\ in writing, accompanied by
the following resolution, vi:
Resolved, That B. F. Whittemore, a Representative in Congress from
the First Congressional district of South Carolina, be, and is hereby,
expelled from his seat as a Member of the House of Representatives in
the Forty-first Congress.
The same having been read, together with the testimony accompanying
the report, Mr. Benjamin F. Butler submitted the following resolution,
which was read, considered, and, under the operation of the previous
question, agreed to, viz:
Resolved, That B. F. Whittemore, a Member of this House, be permitted
to appear at the bar of the House, on Wednesday next, at 2 o'clock
p.m., to be heard in his defense, and show cause, if any he have, why
sentence of expulsion should not be passed against him, as recommended
by the Committee on Military Affairs.
On February 23 the Speaker \3\ ruled that Mr. Whittemore might, under
the resolution, be heard either orally or in writing. So his affidavit
was presented and read, in denial of the charge. After it had been
read, Mr. Benjamin F. Butler, of Massachusetts, desired to be heard in
behalf of the accused Member, having been deputed by him to make his
defense.
The Speaker ruled that Mr. Whittemore in person was entitled to the
floor for one hour, but that he could not depute the gentleman from
Massachusetts [Mr. Butler] to act for him. Should the member of the
committee give such a direction to the matter as to open discussion,
the gentleman from Massachusetts might be recognized in his own right.
But to allow any gentleman to appear and address the House on the
ground that he had been deputed by the gentleman from South Carolina
would take the matter out of the line ofparliamentary proceeding. If
one Member might be so deputed, fifty might be. The matter was entirely
within control of the House, which, by refusing theprevious question,
could throw the matter open.
The Chair recognized the right of Mr. Whittemore to speak in person
as superior to that of the gentleman from Illinois [Mr. Logan], who
reported the matter from the committee, this superior right being given
by the resolution.
-----------------------------------------------------------------------
\1\ Second session Forty-first Congress, Journal, p. 373.
\2\ The Congressional Globe, p. 1469, shows that Mr. Logan submitted
the report as a question of privilege.
\3\ James G. Blaine, of Maine, Speaker.
\4\ Congressional Globe, p. 1523.
Sec. 1273
Mr. Whittemore then arose and yielded to Mr. Butler to represent him,
which the latter proceeded to do, making the argument.
The point was raised that Mr. Whittemore, being in the position of
one accused, was not bound by the hour rule of debate. The Speaker
overruled this point, however.
On February 24, as the House was considering the resolution of
expulsion, the Speaker laid before the House a communication from B. F.
Whittemore, informing the House that he had transmitted to the governor
of South Carolina his resignation of his seat in Congress. The same
having been read, Mr. Whittemore was about to address the House, when
the Speaker decided that, in view of the communication just read to the
House, he could not recognize him as any longer a Member of the House
or entitled to address the same.
Mr. Whittemore's notice to the Speaker that he had resigned did not
reach the desk until after the speech had begun.\1\ The Speaker, as
soon as he read the notice of resignation, caused Mr. Whittemore to
suspend his remarks, and ruled that it was not within the power of the
Chair to recognize anyone not a Member of the House. Therefore he ruled
that Mr. Whittemore might proceed only by unanimous consent of the
House.
Question then arose as to the adoption of the resolution of
expulsion. The precedents in the cases of Messrs. Gilbert and
Matteson\2\ were cited, in both of which the resolutions of expulsion
were not passed after the resignations were tendered. It was stated by
Mr. Logan as a precedent that in the case of Mr. Matteson the Speaker
of the House refused to decide that the resignation was accepted and
submitted the question to the House. Finally it was decided that the
Member had resigned, and the resolution of expulsion was laid on the
table. But resolutions condemning the conduct of the Member were
adopted.
It was urged\3\ that a member of a parliamentary body could not
resign without the consent of that body, since the contrary doctrine
would menace the very existence of the body.
The Speaker said:
The uniform practice of the House of Representatives from the
foundation of the Government has been that when the resignation of a
Member has been handed in at the Clerk's desk the Chair must then cease
to recognize him as a Member. * * * As this case may be cited as a
precedent hereafter the Chair begs to make one further remark with
regard to the decision as to Mr. Whittemore. It is that during the
Thirty-sixth Congress, when there were the highest reasons of State,
reasons of national importance against accepting resignations, when the
Members from the States then going into rebellion resigned, their right
to resign was in no instance questioned.
Mr. John F. Farnsworth, of Illinois, appealed from the decision that
Mr. Whittemore should not be recognized as a Member of the House after
the tender of his resignation. The appeal was laid on the table.\4\
The resolution of expulsion having been laid on the table, Mr. Logan
then
-----------------------------------------------------------------------
\1\ Globe, pp. 1544-1546.
\2\ Who resigned February 27, 1857. See Section 1275 of this chapter.
\3\ By Messrs. N. P. Banks and H. L. Dawes.
\4\ On March 7, 1880, during consideration of another matter, this
decision was commented on by Mr. Henry L. Dawes, of Massachusetts, who
believed that the House should have the right to pass on a resignation.
Second session Forty-first Congress, Globe, p. 1741.
Sec. 1274
reported from the Committee on Military Affairs, as a question of
privilege, the following resolution, which was adopted by a vote of 187
yeas to 0 nays, 34 not voting.
Resolved, That B. F. Whittemore, late Member from the first district
of South Carolina, did make appointments to the Military Academy at
West Point and the Naval Academy at Annapolis in violation of law; and
that such appointments were influenced by pecuniary considerations; and
that his conduct in the premises has been such as to show him unworthy
of a seat in the House of Representatives, and is therefore condemned
as conduct unworthy of a representative of the people.
1274. The House refused to expel but censured a Member who had
accepted money for appointing a cadet at the Military Academy.
A report of a committee is not necessarily signed by all those
concurring in it.
An amendment proposing expulsion of a Member was agreed to by a
majority vote, but on the proposition as amended a two-thirds vote was
required.
The change of a single word in the text of a proposition is
sufficient to prevent the Speaker ruling it out of order as one already
disposed of by the House.
On March 16, 1870,\1\ Mr. William L. Stoughton, of Michigan, as a
question of privilege, submitted a report of the Committee on Military
Affairs, recommending the adoption of the following resolution:
Resolved, That the House declares its condemnation of the action of
Hon. Roderick R. Butler, Representative from the First district of
Tennessee, in nominating Augustus C. Tyler, who was not an actual
resident of his district, as a cadet at the Military Academy at West
Point, and in subsequently receiving money from the father of said
cadet for political purposes in Tennessee, as an unauthorized and
dangerous practice.
This report was signed by 4 members only, but it was explained that 6
members had concurred in the vote on it, thus making it the report of
the majority of the committee.
The minority also presented views, signed by 4 Members, recommending
the adoption of this resolution as a substitute:
Resolved, That Roderick R. Butler, a Representative in Congress from
the First Congressional district of Tennessee, be, and he is hereby,
expelled from his seat as a Member of this House.
When the resolution recommended by the majority came up for
consideration, Mr. John A. Logan, of Illinois, moved to amend by
substituting the minority resolution. This amendment was agreed to,
yeas 101, nays 68--a majority vote.
The amendment having been agreed to, the question recurred on
agreeing to the resolution as amended, which had thereby become a
resolution of expulsion. The Speaker stated that under the Constitution
a two-thirds vote would be required.
There were yeas 102, nays 68--not a two-thirds vote--and the
resolution was rejected.
Mr. Stoughton then offered a resolution which was the resolution
originally reported by the majority of the committee, with the addition
of these words:
and he is hereby censured therefor.
-----------------------------------------------------------------------
\1\ Second session Forty-first Congress, Journal, pp. 481, 485, 487,
498; Globe, pp. 2002, 2031-2037.
Sec. 1275
Mr. Thomas W. Ferry, of Michigan, made the point of order that the
House, upon the proposition of censuring the Member or expelling him,
both ideas being separately before the House, had by a majority vote
chosen expulsion and rejected censure, failing to finally carry the
former by a two-thirds vote. This resolution was therefore not
substantially a different proposition.
The Speaker\1\ said:
The Chair overrules the point of order. The gentleman might not be
able to offer the resolution in precisely the same words, but this is a
different resolution, differently worded, and it is a question of
privilege, and is in order at any time. * * * The difference of a
single word would bring it within the rule of the House.
The resolution of censure was then agreed to, yeas 158, nays 0.
1275. Published charges of corruption sustained by declaration of a
Member caused the House to investigate its membership.
A committee selected to investigate charges against Members generally
did not ask special authority to proceed against one who was found to
be implicated.
Members indicted by the report of a committee were allowed to file
written statements to be printed with the reports.
Form of resolution for investigating charges of corruption among
Members.
Instance wherein the Member proposing a committee of investigation
was appointed chairman.
In proceedings for expulsion the House declined to give the Members a
trial at the bar.
A Member against whom was pending a resolution of expulsion was
permitted to address the House by unanimous consent.
The written protest of a Member against his proposed expulsion does
not go onto the Journal except by order of the House.
Members accused of corruption having resigned, proceedings to expel
them were discontinued.
A Member threatened with expulsion having resigned, the House
nevertheless adopted resolutions censuring his conduct.
Whether or not it was proper to censure a Member who had resigned was
held to be a question for the House and not the Chair.
On January 9, 1857,\2\ Mr. William H. Kelsey, of New York, as a
question of privilege, presented this resolution, which was agreed to:
Whereas certain statements have been published charging that Members
of this House have entered into corrupt combinations for the purpose of
passing and of preventing the passage of certain measures now pending
before Congress; and
Whereas a Member of this House has stated that the article referred
to ``is not wanting in truth:'' Therefore,
Resolved, That a committee, consisting of 5 Members, be appointed by
the Speaker, with power to send for persons and papers, to investigate
said charges; and that said committee report the evidence taken, and
what action, in their judgment, is necessary on the part of the House,
without any unnecessary delay.
-----------------------------------------------------------------------
\1\ James G. Blaine, of Maine, Speaker.
\2\ Third session Thirty-fourth Congress, Journal, p. 201; Globe, pp.
274-276.
Sec. 1275
The Speaker appointed on this committee Mr. Kelsey, and Messrs. James
L. Orr, of South Carolina; H. Winter Davis, of Maryland; David Ritchie,
of Pennsylvania, and Hiram Warner, of Georgia.
On February 19, 1857, the committee made several reports \1\
affecting severally the following Members: William A. Gilbert, of New
York; William W. Welch, of Connecticut; Francis S. Edwards, of New
York, and Orsamus B. Matteson, of New York. Each report was accompanied
by resolutions for the expulsion of the Member.
Mr. Kelsey submitted a minority report,\2\ in which he dissented from
the several reports on the ground that, according to the rules of the
House and parliamentary law, the committee had no power to institute
proceedings against any Member of the body under the resolution by
which the committee was appointed. He quoted the rule of Jefferson's
Manual: \3\
When a committee is charged with an inquiry, if a Member prove to be
involved, they can not proceed against him, but must make a special
report to the House; whereupon the Member is heard in his place, or at
the bar, or a special authority is given to the committee to inquire
concerning him.
In their replies \4\ the accused Members insisted on this rule,
quoting the opinions expressed at the time of the investigation of the
Graves-Cilley duel. They also insisted that, as they had not been
present when the testimony against them was given, they had been
deprived of the proper opportunities for confronting their accusers.
When the case of Mr. Gilbert was taken up in the House, on February 25,
these objections of the accused were considered at length.\5\ It was
urged by Mr. Schuyler Colfax, of Indiana, among others, that the
accused should not be expelled without a public trial at the bar of the
House.
Mr. Samuel A. Purviance, of Pennsylvania, moved this resolution \6\
as an amendment to the resolutions of expulsion:
Resolved, That this House will forthwith proceed with the trial of
Hon. W. A. Gilbert, and that the Sergeant-at-Arms be directed to summon
F. F. C. Triplett, James R. Sweeney, and other witnesses to the bar of
the House; and that the said Gilbert be heard by himself or counsel.
Mr. Henry Winter Davis spoke at length in defense of the procedure of
the committee, and cited as a controlling precedent the action of the
Senate in the case of John Smith in 1807, quoting the entire report of
Mr. John Quincy Adams in that case.\7\ He also quoted the precedents in
the Brooks case in the House.
Mr. Purviance's resolution was disagreed to on February 27 by a vote
of 110 nays to 82 yeas. The resolutions of expulsion were then
considered, and Mr. Gilbert, by unanimous consent, addressed the
House,\8\ and concluded his remarks by sending to the Clerk's desk to
be read a paper in which he protested against the action of the
-----------------------------------------------------------------------
\1\ House Report No. 243, third session Thirty-fourth Congress.
\2\ Page 27 of House Report No. 243.
\3\ Jefferson's Manual, Sec. XI.
\4\ See replies, Appendix Report House of Representatives No. 243,
third session Thirty-fourth Congress.
\5\ Third session Thirty-fourth Congress, Globe, pp. 883-900.
\6\ Globe, p. 901.
\7\ Globe, pp. 902-907.
\8\ Journal, p. 553; Globe, p. 925.
Sec. 1275
House, impeached the proceedings, and finally announced that he
resigned his seat in the House.\1\
Mr. James L. Seward, of Georgia, protested against the putting of the
paper in the Journal.
The Speaker \2\ said:
The paper will not go upon the Journal unless by direct order of the
House. The only thing that will appear on the Journal will be the fact
stated by the Member from New York, in his place, that he resigned his
seat as a Member of this House.
Mr. Gilbert having resigned, the resolutions of expulsion, which
recited also the charges, were laid on the table.
Mr. Edwards also resigned, and the resolutions of expulsion were laid
on the table.\3\
In the case of Mr. Welch the resolutions of expulsion were amended
by, the following substitute, offered by Mr. William Smith, of
Maryland:
Resolved, That there has been no sufficient evidence elicited by the
committee having charge of this subject and reported to this House in
the case of William W. Welch, a Member thereof, and that no further
proceeding should be had against said Member.
The case of Mr. Welch was debated at length,\4\ both as to the
evidence and the propriety of the course of procedure. The opinion of
John Quincy Adams, given in a similar case,\5\ was quoted:
It is the privilege of every Member to be heard and tried by the
House itself.
Mr. Welch was also heard at length in his own behalf. The substitute
was adopted by a vote of 119 yeas to 42 nays.
The resolutions in the case of Mr. Matteson were as follows:
Resolved, That Orsamus B. Matteson, a Member of this House from the
State of New York, did incite parties deeply interested in the passage
of a joint resolution for construing the Des Moines grant to have here
and to use a large sum of money and other valuable considerations
corruptly for the purpose of procuring the passage of said joint
resolution through this House.
Resolved, That Orsamus B. Matteson, in declaring that a large number
of the Members of this House had associated themselves together and
pledged themselves each to the other not to vote for any law or
resolution granting money or lands unless they were paid for it, has
falsely and willfully assailed and defamed the character of this House
and has proved himself unworthy to be a Member thereof.
Resolved, That Orsamus B. Matteson, a Member of this House from the
State of New York, be, and is hereby, expelled therefrom.
Before the consideration of these resolutions \6\ had begun, a
communication was presented announcing the resignation of Mr. Matteson
from the House.
-----------------------------------------------------------------------
\1\ On February 20 Mr. Thomas L. Clingman proposed as a question of
privilege that ``such Members of this House as are implicated by the
special report of the select committee, submitted yesterday, have leave
to file with the Clerk written answers to the allegations contained in
said reports, which shall be printed with the said reports, provided
that the printing of the reports shall not be delayed thereby.''
The Speaker said that this should be submitted to the decision of the
House, and the question being put, the proposition was agreed to.
(Journal, p. 478; Globe, p. 785.)
\2\ Nathaniel P. Banks, of Massachusetts, Speaker.
\3\ Journal, p. 566; Globe, p. 952.
\4\ Journal, p. 563; Globe, pp. 933-951.
\5\ Globe, vol. 6, No. 21, p. 323.
\6\ Journal, pp. 555-560; Globe, pp. 927-932.
Sec. 1276
A motion to lay the resolutions on the table having failed, the
Speaker stated that the question recurred upon the resolutions.
Mr. Henry Bennett, of New York, made the point of order that it was
not competent for the House to take any further action on the
resolutions, on account of the resignation of Mr. Matteson.
The Speaker said:
The gentleman from New York raises the question of order that the
resolutions can not be further considered by the House because the
gentleman to whom they refer is no longer a Member of the House. The
Chair admits the fact stated by the gentleman from New York, but states
that he has no authority to determine that the House has no power to
proceed further in the matter. That is a question which the House must
determine for itself.
After debate on the appeal, it was laid on the table; and so the
decision of the Chair was sustained.\1\
The question next recurred on the resolutions, and the first
resolution was agreed to, yeas 145, nays 17. The second resolution was
also agreed to, without division. The third resolution was then laid on
the table, without division. In the debate the position was taken that
as Mr. Matteson was no longer a Member of the House there was nothing
to be acted on; but it was urged, on the other hand, that the House
might, by acting on the first two resolutions, express its opinion as
to whether or not the facts reported by the committee were true.
1276. An investigating committee of the House having taken testimony
affecting a Member of the Senate, the House transmitted the same to the
Senate.
A Senator's term having expired before a pending resolution of
expulsion was agreed to, the Senate discontinued the proceedings.
A citizen who, while a Member of the Senate, had been subjected to
investigation, was allowed to submit a paper to be filed and printed
with the report.
The Senate declined to permit an ex-Member to print in the Journal or
Record a defense of his conduct.
On February 4, 1873,\2\ in the Senate, the presiding officer laid
before that body the following message:
In The House of Representatives, February 4,1873.
Mr. Poland, from the select investigating committee, etc., submitted
the following, which was agreed to:
``Whereas the evidence taken by a select committee of this House
appointed December 2, 1872, for the purpose of examining into charges
of bribery of Members of this House, contains matter affecting Members
of the Senate: Therefore
``Resolved, That the Clerk of the House be directed to transmit to
the Senate a copy of all the evidence thus far reported to the House by
said committee, together with a copy of this resolution.''
Attest:
Edw. McPherson, Clerk.
-----------------------------------------------------------------------
\1\ Journal, p. 556; Globe, pp. 928, 929.
\2\ Third session Forty-second Congress, Globe, p. 1076; Election
Cases, Senate Document No. 11, special session Fifty-eighth Congress,
p. 973.
Sec. 1276
Thereupon Mr. James W. Patterson, of New Hampshire, who was named in
the message, proposed this resolution, which was agreed to:
Resolved, That a select committee, consisting of 5 Senators, be
appointed by the presiding officer, to whom shall be referred the
communication this day received from the House of Representatives in
relation to matter affecting Members of the Senate, together with a
copy of the evidence accompanying the same, and that the said committee
have power to send for persons and papers and to employ a clerk.
On February 5 \1\ the Chair appointed the committee, Mr. Lot M.
Morrill, of Maine, being chairman.
On February 6 \2\ Messrs. John W. Stevenson, of Kentucky, and John P.
Stockton, of New Jersey, severally asked to be relieved from service on
the committee, and the Senate by vote in each case refused to excuse
them.
On February 27 \3\ Mr. Morrill, of Maine, from the select committee
to whom was referred the communication of the House of Representatives
of the 4th instant, in relation to certain matter affecting Members of
the Senate, together with a copy of the evidence accompanying the same,
submitted a report (No. 519) accompanied by the following resolution:
Resolved, That James W. Patterson be, and he is hereby, expelled from
his seat as a Member of the Senate.
On March 1 and 3 \3\ the propriety of taking up the report was
debated, but the Congress expired without action, and Mr. Patterson's
term expired.
On March 14, 1873,\4\ at the special session of the Senate in the
next Congress, Mr. Henry B. Anthony, of Rhode Island, submitted the
following:
Whereas at the last session of the Senate a resolution was reported
from the select committee on evidence affecting certain Members of the
Senate, ``that James W. Patterson be, and he is hereby, expelled from
his seat as a Member of the Senate;'' and
Whereas it was manifestly impossible to consider this resolution at
that session without serious detriment to the public business; and
Whereas it is very questionable if it be competent for the Senate to
consider the Fame after Mr. Patterson has ceased to be a Member of the
body: Therefore,
Resolved, That the failure of the Senate to take the resolution into
consideration is not to be interpreted as evidence of the approval or
disapproval of the same.
Resolved further, That Mr. Patterson have leave to make a statement,
which shall be entered upon the Journal of the Senate and published in
the Congressional Record.
On March 25 \5\ Mr. Anthony modified the resolution by striking out
the portion relating to the Journal, but there was opposition to
allowing the privilege of publication in the Record to a private
individual, and on March 23 \6\ the resolution was amended to read as
follows, and as amended was adopted:
Whereas at the last session of the Senate a resolution was reported
from the select committee on evidence affecting certain Members of the
Senate, ``that James W. Patterson be, and he is hereby, expelled from
his seat as a Member of the Senate;'' and
Whereas it was manifestly impossible to consider this resolution at
that session without serious detriment to the public business; and
-----------------------------------------------------------------------
\1\ Globe, p. 1099.
\4\ Forty-third Congress, Record, p. 77.
\2\ Globe, pp. 1136, 1137.
\5\ Record, pp. 193-197.
\3\ Globe, pp. 2068, 2069, 2184, 2185.
\6\ Record, p. 204.
Sec. 1277
Whereas it is very questionable if it be competent for the Senate to
consider the same after Mr. Patterson has ceased to be a Member of the
body: Therefore,
Resolved, That the pamphlet entitled ``Observations on the report of
the committee of the Senate of the United States respecting the Credit
Mobilier of America,'' submitted by Mr. Patterson, be received, filed,
and printed with the report of said committee.
1277. A Member being charged with the crime of manslaughter, the
House declined to determine whether or not a question of privilege was
raised and did not investigate.
It being claimed that a charge of crime against a Member involved a
question of privilege, the Speaker submitted the question to the House.
The House has laid on the table a question submitted by the Speaker
as to whether or not a question of privilege was involved in a pending
proposition.
On May 15, 1856,\1\ Mr. Ebenezer Knowlton, of Maine, submitted the
following resolution and preamble, claiming the same to be a matter of
privilege:
Whereas a difficulty occurred at Willard's Hotel, in this city, on
the 8th instant, between Hon. Philemon T. Herbert, a Member of this
House from the State of California, and Thomas Keating, a waiter at
said hotel, which resulted in the death of said Keating from a pistol
shot fired by said Herbert; and whereas upon the examination of said
case before Justices Smith and Birch, of the District of Columbia, the
said justices were divided in their opinion as to the propriety of
allowing said Herbert to obtain bail; and whereas said Herbert was then
taken, on a writ of habeas corpus, before Thomas H. Crawford, judge of
the criminal court of the District of Columbia, and the decision of
said judge was as follows: ``That the prisoner enter into a
recognizance, with one or more good surety or sureties, in the sum of
$10,000, conditioned for his appearance at the next term of the
criminal court of the District of Columbia, to be holden on the third
Monday of June next, to answer to the charge of manslaughter on Thomas
Keating, and not to depart the jurisdiction of the court without the
leave thereof;'' and whereas the Constitution provides ``that each
House of Congress shall be the judge of the qualifications of its own
Members, and may punish its Members for disorderly behavior, and, with
the concurrence of two-thirds, expel a Member'' Therefore,
Resolved, That the Committee on the Judiciary of this House be, and
they are hereby, instructed to take the case of the above-named
Philemon T. Herbert into consideration; that they have the power to
send for persons and papers, and report to this body at their earliest
convenience what action the House shall take in the premises.
Mr. Howell Cobb, of Georgia, raised the question of order that a
question of privilege was not involved in the said preamble and
resolution.
The Speaker \2\ said:
It is not for the Chair to determine whether the facts assumed are
true, or whether it be a question of privilege or not. But if it be
claimed by the gentleman from Maine that it involves a question of
privilege, the Chair will submit the question to the House whether it
will entertain the resolution as a question of privilege.
``Is a question of privilege involved therein?'' was then submitted
to the House, whereupon, on motion of Mr. Alexander H. Stephens, of
Georgia, and by avote of yeas 79, nays 70, the question was laid on the
table.\3\
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\1\ First session Thirty-fourth Congress, Journal, pp. 975, 976;
Globe, p. 1228.
\2\ Nathaniel P. Banks, jr., of Massachusetts, Speaker.
\3\ On February 24, IS57, on petition of citizens of California, the
matter was considered, but the House determined not to investigate the
subject. (Third session Thirty-fourth Congress, Journal, p. 531; Globe,
p. 843.)
Sec. 1278
1278. A Senator being indicted for fraud made a personal explanation
and withdrew from the Senate pending the trial.--On January 17,
1905,\1\ in the Senate, Mr. John H. Mitchell, of Oregon, rising to a
question of privilege, said:
Mr. President and Senators, recent events, with which you are all
familiar, make it incumbent on me to come into your presence at this
time and make answer to charges made against me in the public press and
by a grand jury, and which charges, if true, unfit me to occupy this
seat longer.
The charges, as spread broadcast through the public press, throughout
the length and breadth of the United States--and this is in substance
and effect the indictment reported--we to the effect that in January,
1902, in the State of Oregon, I entered into a conspiracy with Binger
Hermann, then Commissioner of the General Land Office, and with one S.
A. D. Puter, Horace G. McKinley, D. W. Tarpley, Emma L. Watson, Salmon
B. Ormsby, Clark E. Loomis, William H. Davis, and others to defraud the
United States out of a portion of its public lands, situated in
township 11 south, of range 7 east, Walamette Meridian, in the State of
Oregon, by means of false and forged applications, affidavits, and
proofs of homestead entries and settlement; and, further, it is
charged, that in furtherance of said alleged conspiracy, and to effect
the objects thereof, said S. A. D. Puter did on the 9th day of March,
1902, pay and deliver to me the sum of $2,000 in money of the United
States, the same being paid to me, as asserted by Puter, in two bills
of the denomination of $1,000 each, to induce me to use my influence as
a Senator with the said Binger Hermann, Commissioner of the General
Land Office, to induce him, as such Commissioner of the General Land
Office to pass to patent 12 homestead entries, then pending before the
General Land Office, covering lands in the State of Oregon, and each
and all of which entries, it is alleged, were based upon false and
forged homestead applications, affidavits, and proofs, and that in
pursuance of such corrupt conspiracy, it is alleged, I did use my
influence with said Binger Hermann, Commissioner of the General Land
Office, to induce him to pass to patent said 12 homestead entries,
knowing they were fraudulent.
These are the charges made against me, and which I am called upon to
answer. My answer is as follows:
Having given his answer, Mr. Mitchell concluded:
In conclusion, permit me to declare that the representatives of any
government who will tolerate or permit this, much less sanction it, are
unworthy of the exalted positions they occupy.
As for myself, I defy them here and now to produce any evidence,
worth a moment's consideration, which will connect me in any wrongful
manner whatever with any land frauds in Oregon or elsewhere.
Now, having said this much in explanation of and in answer to the
charges against me, and thanking you all sincerely for your courteous
attention, I will not further intrude on your presence.\2\
1279. The Senate election case of Alexander Caldwell, from Kansas, in
the Forty-second Congress.
The election of a Senator being thoroughly tainted with bribery, the
Senate was proceeding to unseat him when he resigned.
Discussion of the effect of the participation of the candidate
himself in bribery and its relation to the amount and the proven
effect.
A Senator having resigned, the Senate desisted from proceedings to
declare his seat vacant or to expel him.
On February 17, 1873.\3\ Mr. Oliver P. Morton, of Indiana, in the
Senate submitted the following report:
On the 11th day of May, 1872, the Senate adopted the following
resolution:
``Resolved, That the Committee on Privileges and Elections be
authorized to investigate the election of Senator S. C. Pomeroy by the
legislature of Kansas in 1867, and the election of Senator Alex-
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\1\ Third session Fifty-eighth Congress, Record, pp. 959-963.
\2\ Mr. Mitchell died before his case assumed such a phase as to call
for action by the Senate.
\3\ Third session Forty-second Congress, Senate Report No. 451;
Election Cases, Senate Document No. 11, special session Fifty-eighth
Congress, p. 429.
Sec. 1279
ander Caldwell in 1871; that the committee have power to send for
persons and papers; that the chairman or acting chairman of said
committee or any subcommittee thereof have power to administer oaths;
and that the committee be authorized to sit in Washington or elsewhere
during the session of Congress and in vacation.''
In obedience to this resolution the Committee on Privileges and
Elections have had under consideration the election of Alexander
Caldwell to the Senate of the United States in January, 1871, have
taken testimony, and beg leave to submit the following report:
It is testified by Mr. Len. T. Smith, a former business partner of
Mr. Caldwell, his active friend at the time of his election and during
this investigation, that he made an agreement with Thomas Carney, of
Leavenworth, by which, in consideration that Mr. Carney should not be a
candidate for United States Senator before the legislature of Kansas,
and should give his influence and support for Mr. Caldwell, Mr.
Caldwell should pay him the sum of $15,000, for which amount notes were
given and afterwards paid, at the same time taking from Mr. Carney a
written instrument in which he pledged himself in the most solemn
manner not to be a candidate for the office of Senator in the
approaching election.
This instrument is in the words following:
``I hereby agree that I will not under any condition of circumstances
be a candidate for the United States Senate in the year 1871 without
the written consent of A. Caldwell, and in case I do to forfeit my word
of honor hereby pledged. I further agree and bind myself to forfeit the
sum of $15,000, and authorize the publication of this agreement.
``Thos. Carney.
``Topeka, January 18, 1871.''
Mr. Smith's testimony is fully corroborated by that of Mr. Carney,
who admits the execution of the paper, the making of the arrangement,
the taking of the notes, and the subsequent receipt of the money. The
notes for the money were signed by Mr. Smith, but paid by Mr. Caldwell;
and one of them, for $5,000, was made contingent upon Mr. Caldwell's
election. The substance of the whole agreement, only a part of which
was expressed in the writing, was that Mr. Carney should not be a
candidate for the Senate against Mr. Caldwell; that he should use his
influence for Mr. Caldwell, go to Topeka, meet the legislature, and do
all he could to secure his election.
The first question to be considered is: Was this arrangement corrupt?
Was it the use of corrupt means on the part of Mr. Caldwell to procure
his election? The committee are of opinion that it was corrupt; was
against public policy; was demoralizing in its character; directly
contributed to destroy the purity and freedom of election, and not to
be tolerated by the Senate of the United States as a means of precuring
a seat in that body.
To understand the full nature of the transaction we must consider the
character and position of Mr. Carney. He had been a governor of Kansas;
he had once been elected a Senator of the United States by the
legislature of that State, but the election was premature, being at the
wrong session; he had been a candidate for the Senate at another time,
and had come within 10 votes of being elected. He was well known
throughout the State, had a large body of active friends, many of whom
were warmly devoted to his political fortunes. His being a candidate
would greatly endanger the success of Mr. Caldwell, if not certain to
result in his defeat. He was from the same city with Mr. Caldwell, and
his candidacy would be the more dangerous on that account. When Mr.
Caldwell agreed to give him $15,000 under this arrangement it was an
attempt to purchase the votes of the friends of Mr. Carney. He
doubtless expected that Mr. Carney, through his influence over his
friends, could bring them over to his support. They would naturally
become friends to the man with whom Mr. Carney was friendly. It was, at
least, a tacit part of this arrangement that Mr. Carney should conceal
the mercenary part of the transaction, and place his withdrawal from
the canvass and his support of Mr. Caldwell upon personal and political
considerations that were honorable to himself and would be attractive
to his friends; and this he did. Mr. Carney went to Topeka before the
Senatorial election and remained there until it was over, working
industriously for Mr. Caldwell, and exerting all his personal and
political influence to secure his election. Looking at the transaction
in its real character it was a sale upon the part of Mr. Carney of the
votes of his personal and political friends in the legislature, to be
delivered by him to Mr. Caldwell as far as possible. If it were
legitimate for Mr. Caldwell to buy off Mr. Carney as a candidate, it
was equally legitimate to buy off all the other candidates and have the
field to himself, by which he would exert a quasi-coercion upon the
members of the legislature to vote for him, having
Sec. 1279
no other candidate to vote for. It was an attempt to buy the votes. of
members of the legislature, not by bribing them directly, but through
the manipulations of another. The purchase money was not to go to them
but to Mr. Carney, who was to sell and deliver them without their
knowledge. That Mr. Caldwell did procure the votes of members of the
legislature, friends of Mr. Carney, ignorant of the fact that Mr.
Carney was making merchandise of his political character and influence,
and of their friendship for him, for which he was to receive a large
sum of money, the evidence leaves no reasonable doubt.
Buying off opposing candidates, and in that way securing the votes of
all or the most of their friends, is in effect buying the office. It
recognizes candidacy for office as a merchantable commodity, a thing
having a money value, and is as destructive to the purity and freedom
of elections as the direct bribery of members of the legislature.
A candidate for the Senate without strength or merit may by
purchasing the influence and support of all or a part of his
competitors and withdrawing them from the canvass succeed in an
election, thus not only committing a fraud upon the friends of the
candidates who were purchased off, but a greater fraud upon the people
of the State, who may be thus saddled with a representative in the
Senate of the United States about whom they know little, for whom they
care nothing, and who possesses little ability to represent their
interests.
Mr. Smith, the friend of Mr. Caldwell, testifies that he paid Mr.
Carney the further sum of $7,000 while at Topeka and just before the
Senatorial election to meet Mr. Carney's alleged expenses while there,
and through fear that Mr. Carney would after all withdraw from the
arrangement and become a candidate.
Upon the check for this sum the money was drawn from the bank at
Topeka in the evening by one T. J. Anderson, who testified that he gave
it to Mr. Carney, and that he was ignorant of the consideration for
which it was paid. Other testimony impeaches that of Mr. Anderson and
raises a strong presumption that he was engaged in the purchase of
votes for Mr. Caldwell, and for which this $7,000 was used, and that
for his services he afterwards received the sum of $5,000 from Mr.
Caldwell. Mr. Carney swears positively that he did not receive this
$7,000 or any part of it, but he indorsed the check at the request of
Mr. Smith to enable him to procure the money from the bank; that the
money was to be used in procuring votes for Mr. Caldwell, and that a
package containing this money, as he believes, was placed by Mr.
Anderson on a table in Mr. Carney's room, where it could be and was
conveniently carried off by the parties for whom it was intended.
Taking all the testimony together, the probability is that Mr. Carney
did not get the $7,000, as no good reason was presented by Mr. Smith
why, when Mr. Caldwell was holding Governor Carney's written promise
not to be a candidate and Mr. Carney holding notes to be paid by Mr.
Caldwell for $15,000, a new arrangement should be made by which Mr.
Smith should pay Mr. Carney $7,000 more, making $22,000 in all.
We now come to the consideration of the transaction with Mr. Sidney
Clarke. He had been a Member of Congress, had been a candidate for the
United States Senate during the preceding canvass before the people,
and many members of the legislature were elected upon personal pledges
to vote for him for Senator. When the first vote was taken in the
separate houses Mr. Clarke received 27 votes, the largest number given
for any candidate but one; but the votes satisfied him and his friends
that he could not be elected. An arrangement was concluded between Mr.
Caldwell and a Mr. Stevens, a friend of Mr. Clarke, at a late hour in
the night before the joint convention of the two houses, by which Mr.
Caldwell was to pay Mr. Clarke's expenses in the canvass, estimated at
from $12,000 to $15,000, and Mr. Clarke was to withdraw in favor of Mr.
Caldwell. At a caucus of the friends of Mr. Clarke, held at 9 o'clock
on the morning of the joint convention when Mr. Caldwell was elected,
Mr. Clarke made a speech and urged them to vote for Mr. Caldwell, and
in joint convention his name was withdrawn and all his friends but one
voted for Mr. Caldwell. Subsequently in this city Mr. Clarke had
several conferences with Mr. Caldwell, in which the latter promised to
comply with his engagement with Mr. Stevens and pay Mr. Clarke's
expenses, estimated at from $12,000 to $15,000, but never did. Mr.
Clarke was unwilling to admit that he had made an agreement to transfer
his friends to Mr. Caldwell in consideration of the latter's promise to
pay this money, but taking all the testimony together the committee
have no doubt that the transaction between him and Mr. Clarke was as
has been stated. Mr. Caldwell's subsequent refusal to pay the money to
Mr. Clarke does not relieve the character of the transaction, and very
probably resulted in the exposure of Mr. Caldwell and the institution
of this examination.
Sec. 1279
There was nothing in the evidence to show that Mr. Clarke's expenses
in the Senatorial canvass or in the preceding canvass before the people
amounted to half the sum which Mr. Caldwell was to pay him.
Mr. Carney and Mr. Clarke each testifies that Mr. Caldwell told them
after the election that his election had cost him $60,000. Mr. Anthony,
the mayor of the city of Leavenworth, testified that Mr. Caldwell
admitted to him that the election had cost him over $60,000. Mr. Burke,
editor of the Leavenworth Herald, and a supporter of Mr. Caldwell in
his canvass, testifies that after the election Mr. Caldwell told him
that the money he had paid Mr. Carney was not more than 10 per cent of
the whole amount which the election had cost him, and on another
occasion that the election had cost him more than twice his entire
salary.
The committee have had much difficulty in tracing the money
transactions; but the evidence shows that various sums, amounting to
over $50,000, were drawn under circumstances that make it probable they
were used to procure Mr. Caldwell's election. The sum of $15,000, paid
to Mr. Carney, has already been stated. The second sum of $7,000, which
Mr. Len. T. Smith swears was paid to Mr. Carney, and which Mr. Carney
denies receiving, and testifies to circumstances showing it was used
for the bribery of members of the legislature, has also been referred
to. It is further shown that three or four days before the election
took place Mr. Caldwell's agent went into the banking house of Scott &
Co., at Leavenworth, and drew the sum of $10,000 upon Mr. Caldwell's
check for the a vowed purpose of taking the money to Topeka by the
train that morning, which was given as the reason for presenting the
check before bank hours. Mr. Jacob Smith, banker at Topeka, testified
that at 9 o'clock in the evening before the election took place Doctor
Morris, of Leavenworth, a very active friend of Mr. Caldwell, drew
$5,000 from his bank, and that Judge Crozier, of Leavenworth, an
influential supporter of Mr. Caldwell, and then at Topeka laboring for
his election, drew $1,200 from the bank after banking hours at the
request of Mr. Smith, which was handed over to Mr. Smith. The testimony
left no doubt upon the minds of the committee that the bankers who
honored these different checks at Topeka after banking hours understood
that the money was to be used for political purposes. The evidence
further shows that Mr. T. J. Anderson subsequently received from Mr.
Caldwell the sum of $5,000 for his services in the election. A draft
for $10,000, drawn by the solicitor of the Kansas Pacific Railroad
Company upon the treasurer of that company, was presented at the Kansas
Valley Bank, of Topeka, by Mr. T. J. Anderson on the 23d of January,
the day before the election, and the money drawn upon it under
circumstances which, taken in connection with other testimony, make it
probable that the money was used for Mr. Caldwell's election. The
committee have no reason to believe that they have traced all the money
that was used, and in the foregoing statement have taken no account of
several small sums shown to have been paid by Mr. Caldwell for the
expenses of his friends while at Topeka.
Mr. William Spriggs, a former treasurer of Kansas, testified in
regard to a self-constituted committee of six of Mr. Caldwell's leading
friends who met from time to time at Topeka during the day and evening
for five or six days before the election to confer and report progress
in electioneering for Mr. Caldwell; that during the meetings of this
committee it was reported by Mr. Smith what members of the legislature
had been secured to vote for Mr. Caldwell, how much was offered to
others, and how much was asked by others. We quote from his testimony:
``We usually met at 10 o'clock in the morning. We had a roll of the
senate and of the house and kept them, and we would compare notes, and
then such a member of the committee would be sent that day or at such a
time to see such members of the house and such another one to see
somebody else--whoever we thought would be the best man for that
particular place; and then we would meet again at such another hour and
report what we had done and what success we had had, and in some quite
a number of times--I do not know how many. In making the report and
comparing notes there was one member of the committee would report; in
calling over the names he would come to such and such a man and he
would say, ``We had better not count that man yet; that is under
negotiation and he is a little too high; I think I can bring him down
some.'' '
This witness testified to several interviews with Mr. Caldwell, and
we quote from his testimony:
``I will just tell you what Mr. Caldwell said tome about it. He asked
me if I knew any members of the legislature that could be influenced by
the use of money for their votes, and I told him that I knew two
members I believed that had the reputation of having been influenced in
their votes on former occasions.''
Sec. 1279
And further on:
``He said if I found any members that wanted a little money for votes
to send them to him and to Len. Smith.
``Mr. Caldwell said there was another class of high-toned gentlemen
there in the legislature that would not sell their votes, but they put
it in this way: That they had been to a pretty heavy expense in
carrying their election and they would want their expenses paid, and if
I met with any of that class to send them to him or to Len.''
The testimony of Mr. Spriggs is very full and shows that the canvass
of Mr. Caldwell was thoroughly corrupt and that money was the chief
argument relied upon. Among many other things, he stated that T. J.
Anderson told him that he had paid Mr. Crocker, a member of the house,
$1,000 for his vote; that Mr. Crocker afterwards backed out and handed
the money over to a Mr. Carson to be returned to Mr. Anderson; that
Carson got on the cars, went home, and kept the money. Carson was
afterwards called by the committee and corroborated the statement,
admitting that he had received the $1,000 back from Mr. Crocker to be
returned to Mr. Anderson, but that he had kept the money himself for
his services to Mr. Caldwell. Mr. Carney testifies that in an interview
with Mr. Caldwell after the election, in which he was urging him to
procure an appointment for one of Mr. Carney's friends who had voted
for him, Mr. Caldwell took from his pocket a memorandum book and
appeared to run over a list of names, and coming to the man referred to
said, ``That man has been paid;'' and Mr. Carney understood from his
manner that he had in this memorandum book a list of members, with the
sums paid to each; that Mr. Caldwell told him upon another occasion
that he had paid Mr. Bayers the sum of $2,500 for his vote and Mr.
James F. Legate the sum of $1,000 for his vote. Mr. Anthony also swears
that in a conversation with Mr. Caldwell that gentleman admitted to him
that he had paid $2,500 for the vote of Mr. Bayers. There is much
testimony showing that Len. T. Smith, Frank Drenning, James L.
McDowell, George A. Smith, and T. J. Anderson, among the most active
friends of Mr. Caldwell during the canvass, admitted at different times
that they had offered money to members of the legislature to vote for
Mr. Caldwell, in some cases specifying the members to whom it was
offered and paid and in other cases that offers had been made that had
not been accepted, and that negotiations were on hand with others which
had not been completed. These men have denied before the committee all
conversations and admissions of this character and all payment of money
to members or offers to pay them, and several members of the
legislature who were implicated have expressly denied that they
received the money or that offers were made them.
Mr. Caldwell offered testimony showing that Mr. Carney had made
threats to have him ousted from the Senate; that Mr. Anthony was
hostile to him; that Mr. Burke had a lawsuit with him growing out of
money furnished to Mr. Burke about the time of the election; and to
contradict several statements of Mr. Clarke. The most important
contradictions of the testimony produced against Mr. Caldwell are made
by members of the legislature who were themselves implicated or by the
agents of Mr. Caldwell who were directly charged with taking a part in
these corrupt practices, and there are some contradictions made by
witnesses against whom there is no cause of suspicion. But taking the
testimony altogether, the committee can not doubt that money was paid
to some members of the legislature for their votes and money promised
to others which was not paid and offered to others who did not accept
it.
By the Constitution each House of Congress is made the judge of
elections, returns, and qualifications of its Members.
If a person elected to the Senate has not the constitutional
qualifications, or if the election is invalid by reason of fraud or
corruption, the jurisdiction to examine and determine is expressly
vested in the Senate.
Another clause of the Constitution authorizes the Senate to expel a
Member by a two-thirds vote. The causes for which a Senator may be
expelled are not limited or defined, but rest in the sound discretion
of the Senate.
It has been a subject of discussion in the committee whether the
offenses of which they believe Mr. Caldwell to have been guilty should
be punished by expulsion or go to the validity of his election, and a
majority are of the opinion that they go to the validity of his
election and had the effect to make it void. Wherefore the committee
recommend to the Senate the adoption of the following resolution:
Resolved, That Alexander Caldwell was not duly and legally elected to
a seat in the Senate of the United States by the legislature of the
State of Kansas.
Sec. 1280
This report was the subject of a long and learned debate, extending
from March 10 to 22, 1873.\1\ At first the theory of the report in
regard to the common law of England was assailed, and it was denied
that, even were the English law as stated, it was of effect in a case
like this. The doctrine that participation of the candidate in bribery
voided the election even though the amount of bribery proven was not
sufficient to change the result was strongly antagonized. It was
pointed out that Mr. Caldwell had a majority of 25 votes, and that only
a few of these at most could be impeached. It was further urged that
the Senate might not inquire into the qualifications of the members of
the legislature, and one Senator even took the ground that if every
legislator had been bribed, their act of electing a Senator would yet
be unassailable. On March 13 \2\ Mr. James L. Alcorn, of Mississippi,
proposed for action at a future time this resolution:
Resolved, That the Senate, acting as the judge of the election,
returns, and qualifications of its own Members, has the power under the
Constitution to reject Senators-elect whose election shall have been
proved to the satisfaction of the Senate to have been tainted by
bribery, fraud, or intimidation.
On March 21 \3\ Mr. Orris S. Ferry, of Connecticut, moved--
to amend the resolution by striking out the following words, ``was not
duly and legally elected to a seat in the Senate of the United States
by the legislature of the State of Kansas,'' and in lieu thereof
inserting ``be, and he hereby is, expelled from the Senate of the
United States.''
The debate continued until March 24,\4\ when the Vice-President laid
before the Senate a letter from Mr. Caldwell, showing that he had
resigned his seat in the Senate.
Thereupon Mr. Morton said:
It is hardly competent for the Senate to expel a man who is not a
Member, or to declare a seat vacant that is already vacant by
resignation.
Therefore he ceased to press the question.
1280. Instances of expulsion proposed in the Senate but not effected.
On February 27, 1873,\5\ a special committee of the Senate who had
investigated charges against Senator James W. Patterson, of New
Hampshire, reported a resolution for his expulsion. The resolution was
not acted on.
1281. In 1862 \6\ the Senate considered the case of James F. Simmons,
Senator from Rhode Island.
July, 2, 1862, near the end of Mr. Simmons's second term in the
Senate, a resolution was submitted that he be expelled from the Senate.
The preamble stated that it appeared from a report of the Secretary of
War that Mr. Simmons had exercised his official influence over certain
of the heads of the Departments in procuring an order authorizing a
certain person to manufacture rifles in behalf of the Government for
the Army and Navy, and that Mr. Simmons had agreed to receive as a
compensation for such services the sum of $50,000, and that he had
already received two
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\1\ Special session Forty-third. Congress, Record, pp. 30-38, 41-47,
48-62, 66-77, 80-89, 90-102, 104-113, 118-125, 126-134, 137-154, 154-
164.
\2\ Record, p. 76.
\3\ Record, p. 137.
\4\ Record, pp. 164, 165.
\5\ Third session Forty-second Congress, Globe, pp. 1872, 1873, 2184.
\6\ Election Cases, Senate Document No. 11, Special Session, 58th
Cong., p. 970.
Sec. 1282
promissory notes amounting to $10,000. July 8 the resolution was
referred to the Committee on the Judiciary by a vote of 31 yeas to 7
nays. July 14 the committee reported that the facts were substantially
as above given, and that they were of opinion that ``such a practice is
entirely indefensible, and that it was highly improper for a Senator of
the United States to have acted thus, even when the Government
sustained no loss thereby;'' that it was manifest that Congress
disapproved of such conduct from the fact that they had promptly passed
a law making it a penal offense thereafter; but that to visit a severe
penalty upon an act which at the time of its commission was not
punishable or forbidden by public law would be retroactive in its
effect, and render the step liable to that objection to which all post
facto laws are justly subject. The committee unanimously reported back
the resolution, accompanied by the statement of facts, that the Senate
might take such action as they might think fit. No action was taken.
Congress adjourned within three days after the report was made, and Mr.
Simmons had resigned his seat in the Senate before the next session.
1282. The Senate case of Joseph R. Burton, in the Fifty-ninth
Congress.
A Senator convicted in the courts resigned after the Senate had
ordered an inquiry.
Summary and discussion of laws regulating the conduct of
Representatives and Senators.
The Congress may by law impose certain restrictions on the conduct of
Senators and Representatives without conflicting with the fundamental
idea of the Constitution.
There is no necessary connection between the conviction of a Senator
under Sec. 1782, R. S., and the right of the Senate to punish one of
its Members.
A final judgment of conviction under section 1782, R. S., does not
operate ipso facto to vacate the seat of a convicted Senator or compel
the Senate to expel him.
Senators can not properly be said to hold their places ``under the
Government of the United States.''
The Senate took steps looking to punishment of a convicted Senator,
although an application for rehearing of an appeal was pending.
Instance wherein the Senate was informed by the governor of a State
that one of the Senators of that State had resigned.
On May 22, 1906,\1\ in the Senate, Mr. Eugene Hale, of Maine, offered
the following resolution, which was agreed to:
Resolved, That the Committee on Privileges and Elections be, and are
hereby, directed to examine into the legal effect of the late decision
of the Supreme Court in the case of Joseph R. Burton, a Senator from
the State of Kansas, and, as soon as may be, to report their
recommendation as to what action, if any, shall be taken by the Senate.
Mr. Burton had been convicted under sections 3929, 4041, and 1782 of
the Revised Statutes, which provide against the use of the mails for
fraudulent purposes and forbid Senators or Representatives from
receiving compensation for services
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\1\ First session Fifty-ninth Congress, Record, p. 7211.
Sec. 1282
rendered before any department, etc., of the United States Government.
He had been twice convicted, and this decision was rendered on Mr.
Burton's appeal from the second conviction. The Supreme Court refused
to reverse the judgment of the circuit court.
The opinion of the court, rendered May 21, 1906,\1\ by Mr. Justice
Harlan, among other features, examined section 1782, which is as
follows:
Sec. 1782. No Senator, Representative, or Delegate, after his
election and during his continuance in office, and no head of a
Department, or other officer or clerk in the employ of the Government,
shall receive or agree to receive any compensation whatever, directly
or indirectly, for any services rendered, or to be rendered, to any
person, either by himself or another, in relation to any proceeding,
contract, claim, controversy, charge, accusation, arrest, or other
matter or thing in which the United States is a party, or directly or
indirectly interested, before any Department, court-martial, bureau,
officer, or any civil, military, or naval commission whatever. Every
person offending against this section shall be deemed guilty of a
misdemeanor, and shall be imprisoned not more than two years, and fined
not more than ten thousand dollars, and shall, moreover, by conviction
therefor, be rendered forever thereafter incapable of holding any
office of honor, trust, or profit under the Government of the United
States.\2\
1. The first question to be considered is whether section 1782 is
repugnant to the Constitution of the United States. This question has
been the subject of extended discussion by counsel. But we can not
doubt the authority of Congress by legislation to make it an offense
against the United States for a Senator, after his election and during
his continuance in office, to agree to receive or to receive
compensation for services to be rendered or rendered to any person,
before a Department of the Government, in relation to a proceeding,
matter, or thing in which the United States is a party or directly or
indirectly interested.
The principle that underlies section 1782 is not wholly new in our
legislative history. For instance, by the act of March 3, 1863,\3\ it
was declared that Members of Congress shall not practice in the Court
of Claims. Later Congress by statute declared that no Member of or
Delegate to Congress shall directly or indirectly, himself or by any
other person in trust for him, or for his use or benefit, or on his
account, undertake, execute, hold, or enjoy, in whole or in part, any
contract or agreement made or entered into in behalf of the United
States by any officer or person authorized to make contracts on behalf
of the United States; and every person violating this section was to be
deemed guilty of a misdemeanor and fined $3,000.\4\
Counsel for the accused insists that section 1782 is in conflict with
the fundamental idea of the Federal system, namely, that the Government
is one of ``limited powers, with duties and restrictions imposed, and
no authority is lodged anywhere to change those duties or restrictions,
except the power reserved by the people.'' The proposition here stated
is certainly not to be disputed; for it is settled doctrine, as
declared by Chief Justice Marshall and often repeated by this court,
that ``the Government of the United States can claim no powers which
are not granted to it by the Constitution, and the powers actually
granted must be such as are expressly given or given by necessary
implication.'' \5\ We do not, however, perceive that there has been in
the statute before us any departure from that salutary doctrine.
It is said that the statute interferes, or by its necessary operation
will interfere, with the legitimate authority of the Senate over its
members, in that a judgment of conviction under it may exclude a
Senator from the Senate before his constitutional term expires;
whereas, under the Constitution, a Senator is elected to serve a
specified number of years, and the Senate is made by that instrument
the sole judge of the qualifications of its members, and, with the
concurrence of two-thirds, may expel a Senator from that body. In our
judgment there is no necessary connection between the conviction of a
Senator of a public offense prescribed by statute and the authority of
the Senate in the particulars named. While the framers of the
Constitution intended that each Department should keep within its
appointed sphere of publication, it was never contemplated that the
authority of the Senate to admit
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\1\ This was the second decision of the court in Senator Burton's
case.
\2\ 13 Stat., 123, c. 119.
\3\ 12 Stat., 765, c. 92; R. S., 1058.
\4\ R. S., 3739.
\5\ Martin v. Hunter, Lessee, 1 Wheat., 304, 343.
Sec. 1282
to a seat in its body one who had been duly elected as a Senator, or
its power to expel him after being admitted, should in any degree limit
or restrict the authority of Congress to enact such statutes, not
forbidden by the Constitution, as the public interests required for
carrying into effect the powers granted to it. In order to promote the
efficiency of the public service and enforce integrity in the conduct
of such public affairs as are committed to the several Departments,
Congress, having a choice of means, may prescribe such regulations to
those ends as its wisdom may suggest, if they be not forbidden by the
fundamental law. It possesses the entire legislative authority of the
United States. By the provision in the Constitution that ``all
legislative powers herein granted shall be vested in a Congress of the
United States,'' it is meant that Congress, keeping within the limits
of its powers and observing the restrictions imposed by the
Constitution, may, in its discretion, enact any statute appropriate to
accomplish the objects for which the National Government was
established. A statute like the one before us has direct relation to
those objects, and can be executed without in any degree impinging upon
the rightful authority of the Senate over its members or interfering
with the discharge of the legitimate duties of a Senator. The proper
discharge of those duties does not require a Senator to appear before
an Executive Department in order to enforce his particular views or the
views of others in respect of matters committed to that Department for
determination. He may often do so without impropriety, and, so far as
existing law is concerned, may do so whenever he chooses, provided he
neither agrees to receive nor receives compensation for such services.
Congress, when passing this statute, knew, as, indeed, everybody may
know, that executive officers are apt, and not unnaturally, to attach
great, sometimes perhaps undue, weight to the wishes of Senators.
Evidently the statute has for its main object to secure the integrity
of executive action against undue influence upon the part of members of
that branch of the Government whose favor may have much to do with the
appointment to or retention in public position of those whose official
action it is sought to control or direct. The evils attending such a
situation are apparent and are increased when those seeking to
influence executive officers are spurred to action by hopes of
pecuniary reward. There can be no reason why the Government may not, by
legislation, protect each Department against such evils--indeed,
against everything, from whatever source it proceeds, that tends or may
tend to corruption or inefficiency in the management of public affairs.
A Senator can not claim immunity from legislation directed to that end,
simply because he is a member of a body which does not owe its
existence to Congress, and with whose constitutional functions there
can be no interference. If that which is enacted in the form of a
statute is within the general sphere of legitimate legislative, as
distinguished from executive. and judicial, action, and not forbidden
by the Constitution, it is the supreme law of the land--supreme over
all in public stations, as well as over all the people.``No man in this
country,'' this court has said, ``is so high that he is above the law.
No officer of the law may set that law at defiance with impunity. All
the officers of the Government, from the highest to the lowest, are
creatures of the law and are bound to obey it.'' \1\ I Nothing in the
relations existing between a Senator, Representative, or Delegate in
Congress and the public matters with which, under the Constitution,
they are respectively connected from time to time, can exempt them from
the rule of conduct prescribed by section 1782. The enforcement of that
rule will not impair or disturb those relations or cripple the power of
Senators, Representatives, or Delegates to meet all rightful or
appropriate demands made upon them as public servants.
Allusion has been made to that part of the judgment declaring that
the accused, by his conviction, ``is rendered forever hereafter
incapable of holding any office of honor, trust, or profit under the
Government of the United States.'' That judgment, it is argued, is
inconsistent with the constitutional right of a Senator to hold his
place for the full term for which he was elected and operates, of its
own force, to exclude a convicted Senator from the Senate, although
that body alone has the power to expel its Members. We answer that the
above words, in the concluding part of the judgment of conviction, do
nothing more than declare or recite what, in the opinion of the trial
court, is the legal effect attending or following a conviction under
the statute. They might well have been omitted from the judgment. By
its own force, without the aid of such words in the judgment, the
statute makes one convicted under it incapable forever thereafter of
holding any office of honor, trust, or profit under the Government of
the United States. But the final judgment of conviction did not
operate, ipso facto, to vacate the seat of the convicted Senator nor
compel the Senate to expel him or to regard him as expelled by force
alone of the judgment. The seat into which he was originally inducted
as a Senator from Kansas could
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\1\ United States v. Lee, 106 U. S., 196, 220.
Sec. 1283
only become vacant by his death or by expiration of his term of office
or by some direct action on the part of the Senate in the exercise of
its constitutional powers. This must be so for the further reason that
the declaration in section 1782 that any one convicted under its
provisions shall be incapable of holding any office of honor, trust, or
profit ``under the Government of the United States'' refers only to
offices created by or existing under the direct authority of the
National Government as organized under the Constitution and not to.
offices the appointments to which are made by the States acting
separately, albeit proceeding, in respect of such appointments, under
the sanction of that instrument. While the Senate, as a branch of the
legislative department, owes its existence to the Constitution and
participates in passing laws that concern the entire country, its
members are chosen by State legislatures and can not properly be said
to hold their places ``under the Government of the United States.''
We are of opinion that section 1782 does not by its necessary
operation impinge upon the authority or powers of the Senate of the
United States nor interfere with the legitimate functions, privileges,
or rights of Senators.
Mr. Justice Brewer made a dissenting opinion, in which Messrs.
Justices White and Peckham concurred; but this dissent did not deal
with this feature of the case.
Mr. Burton appealed for a rehearing, which could not be heard and
decided before the probable termination of the session of Congress at
which Mr. Hale offered the resolution directing the investigation. This
appeal had been made at the time Mr. Hale's resolution was agreed to.
On June 5, 1906,\1\ the Vice-President laid before the Senate the
following telegram,\2\ which was read and ordered to lie on the table:
Topeka, Kans., June 4, 1906.
Hon. Charles W. Fairbanks,
Vice-President of the United States, Washington, D. C.:
Hon. J. R. Burton has this day tendered his resignation as United
States Senator from Kansas, and I have accepted the same.
E. W. Hoch, Governor of Kansas.
1283. The case of King and Schumaker, in the Forty-fourth Congress.
The majority of the Judiciary Committee concluded that a Member might
not be tried or punished by the House for an offense alleged to have
been committed against a preceding Congress.
In the Forty-third Congress the Committee on Ways and Means made an
investigation of the charges that a large sum of money was used to
secure the passage through Congress of an increased annual
appropriation to the Pacific Mail Steamship Company in the nature of a
subsidy. They ascertained from the evidence that about $900,000 was
disbursed upon the allegation that it was used in aid of the passage of
the act. About $565,000 of this was found to have been paid to the use
of persons having no official connection with such legislation. The
remaining sum remained in doubt because of the ``refusal of William S.
King to testify to the truth and to the failure or refusal of John G.
Shumaker to present all the facts which the committee believe it was in
his power to give.'' The committee recommended that the evidence taken
be transmitted to the Clerk of the House, to be by him laid before the
Forty-fourth Congress, and also that a copy be sent to the United
States district attorney, to be by him presented to the grand
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\1\ Record, p. 7821.
\2\ Although a motion for a rehearing was before the court and would
not probably be acted on before the termination of the existing session
of Congress, there had been proceedings in the Committee on Privileges
and Elections which suggested that steps looking to expulsion might be
taken at once.
Sec. 1283
jury of the District. These recommendations were carried out, and when
the Forty-fourth Congress took the case up for consideration the
subject was before the United States court.
Messrs. King and Schumaker were Members of the Forty-fourth Congress,
and the Judiciary Committee inquired ``what action should be taken by
the House in reference to the persons now Members of this House charged
with complicity in the alleged corrupt use of money to procure the
passage of an act providing for an additional subsidy in the China mail
service during the Forty-second Congress and with giving false
testimony in relation thereto before the Committee on Ways and Means of
the Forty-third Congress. The report \1\ of the committee finds as
follows:
Your committee are of the opinion that the House of Representatives
has no authority to take jurisdiction of violations of law or offenses
committed against a previous Congress. This is a purely legislative
body and entirely unsuited for the trial of crimes. The fifth section
of the first article of the Constitution authorizes ``each House to
determine the rules of its proceedings, punish its Members for
disorderly behavior, and, with the concurrence of two-thirds, expel a
Member.'' This power is evidently given to enable each House to
exercise its constitutional function of legislation unobstructed. It
can not vest in Congress a jurisdiction to try a Member for an offense
committed before his election. For such offense a Member, like any
other citizen, is amenable to the courts alone. Within four years after
the adoption of the first ten amendments to the Constitution, Humphrey
Marshall, a Senator of the United States from Kentucky, was charged by
the legislature of his State with the crime of perjury, and the
memorial was transmitted by the governor to the Senate for its action.
The committee to whom it was referred reported against the jurisdiction
of the Senate, and say:
``That in a case of this kind no person can be held to answer for an
infamous crime unless on a presentment or indictment of a grand jury,
and that in all such prosecutions the accused ought to be tried by an
impartial jury of the State or district wherein the crime shall have
been committed. Until he is legally convicted, the principles of the
Constitution and of the common law concur in presuming that he is
innocent. And they are also of opinion that, as the Constitution does
not give jurisdiction to the Senate, the consent of the party can not
give it, and that therefore the said memorial ought to be dismissed.''
This report was adopted by a vote of 16 to 7. This is the
construction given to said section in the first case presented to
either House after its adoption by the statesmen who framed the
Constitution, and we think it an authority which should control the
case before the committee. We know of no public interest which will be
promoted by further investigation. Your committee therefore recommend
that the House leave these charges where they now are, in court, to be
finally adjudicated and disposed of without any interposition or
further action of the House.
Messrs. Scott Lord, William Lawrence, George F. Hoar, and B. G.
Caulfield submitted views of the minority, denying that the case of
Marshall was parallel to the present cases, where the crimes were not
alleged to have been committed in a State court, but related directly
to the attempted corruption of Members of Congress of the United
States, which crime or crimes, wherever originated, were consummated,
as alleged, in the District of Columbia or within the halls of the
Capitol. In the State of New York, in the case of George G. Barnard,
one of the justices of the supreme court, he was held liable to
impeachment for offenses committed by him before he was elected to the
term of office which he then held. The senate of that State has
asserted the same principle. The Senate of the United States had
recently held jurisdiction in a case in which the alleged limitation,
if any, forbidding it, is found in the words of the Constitution. The
fact that the questions involved as to the guilt of the accused Members
had been referred to the courts of the District of Columbia did
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\1\ House Report No. 815, first session Forty-fourth Congress.
Sec. 1284
not and could not affect the question of jurisdiction, nor in any
manner release the House from its duty in the premises, as had been
held in the cases of Kilbourn and Belknap.
George W. McCrary also expressed the opinion in a supplemental report
that the House might properly assume jurisdiction in a case where a
Member had received money to be used in corrupting legislation in
Congress for which offense no indictment had been found, even though
the offenses were charged prior to his election.
1284. In 1799 the House declined to expel Matthew Lyon for an offense
committed while a Member but before his reelection to the then existing
House.--On February 20, 1799,\1\ Mr. James A. Bayard, of Delaware,
proposed this resolution:
Resolved, That Matthew Lyon, a Member of this House, having been
convicted of being a notorious and seditious person, and of a depraved
mind, and wicked and diabolical disposition; and of wickedly,
deceitfully, and maliciously, contriving to defame the Government of
the United States; and of having with intent and design to defame the
Government of the United States, and John Adams, the President of the
United States, and to bring the said Government and President into
contempt and disrepute, and with intent and design to excite against
the said Government and President the hatred of the good people of the
United States, and to stir up sedition in the United States--wickedly,
knowingly, and maliciously, written and published certain scandalous
and seditious writings or libels, be therefore expelled from this
House.
On February 22 the House considered the resolution. Mr. Bayard
contended that the House had unlimited power of expulsion, and could
expel a Member for any crime or any cause which, in their discretion,
they conceived had rendered him unfit to remain a Member of the body.
It was a fallacious doctrine that the House could not take notice of
acts done by its Members out of the House.
It appeared from the debate that Mr. Lyon, a Member from Vermont, had
been convicted in that State under the recently enacted sedition law.
It was urged by Mr. John Nicholas, of Virginia, that Mr. Lyon's
constituents, with a full knowledge of his prosecution, had reelected
him. Mr. Lyon addressed the House in his own behalf,\2\ no special
permission being given by the House. The discussion developed into a
discussion of the sedition laws.
The question being taken there were yeas 49, nays 45. So two-thirds
of the Members present not concurring, the resolution was not agreed
to.
1285. After a discussion of the subject of qualifications and
expulsion the House laid on the table a question as to the conduct of a
Member in the preceding Congress.--On January 15, 1858,\3\ Mr. Thomas
L. Harris, of Illinois, rising to a question of privilege, presented
this resolution:
Resolved, That Orsamus B. Matteson, a Member of this House from the
State of New York, be, and is hereby, expelled from this House.
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\1\ Third session Fifth Congress, Annals, pp. 2954, 2959-2974;
Journal, p. 487.
\2\ Mr. Lyon was a Member of the House at the time he was fined and
imprisoned. On November 13, 1811, a memorial was presented to the House
asking that the fine be repaid. Annals, first session Twelfth Congress,
p. 345.
\3\ First session Thirty-fifth Congress, Globe, pp. 311, 878-889,
1389-1392; Journal, p. 559.
Sec. 1285
The preamble of this resolution recited that in the preceding
Congress the conduct of Mr. Matteson had been investigated and he had
resigned to escape expulsion.\1\
On February 25, the resolution introduced by Mr. Harris was
considered at length. It was urged by Mr. Harris that the act of
expulsion was proper, not as a punishment but as a purification of the
House. The Senate had, in the case of Mr. Blount, of Tennessee, shown
that it considered itself competent to expel for an offense committed
before the offender had been sworn in as a Member of the body. In the
case of Senator John Smith, of Tennessee, the report,\2\ made by John
Quincy Adams had taken the ground that--
by the letter of the Constitution, the power of expelling a Member is
given to each of the two Houses of Congress, without any limitation
other than that which requires a concurrence of two-thirds of the votes
to give it effect.
In opposition it was contended that the power of expulsion was
limited. Mr. Miles Taylor, of Louisiana, held that the House could
expel only for disorderly conduct in violation of the rules of order.
It was held by others that the House had no right to expel for an
offense committed before the Member took his seat, the Wilkes case
being cited in support.
By a vote of 93 yeas to 87 nays the House referred the subject to a
special committee, which reported on March 22.\3\ Messrs. James L.
Seward, of Georgia, Galusha A. Grow, of Pennsylvania, and John Huyler,
of New Jersey, signed the majority report, which was embodied in this
resolution:
Resolved, That it is inexpedient for this House to take any further
action in regard to the resolutions proposing to expel O. B. Matteson.
The committee in their report took the ground that the proceedings in
the previous Congress constituted no disqualification, and that in Mr.
Matteson's case there was no constitutional or legal hindrance to his
being elected, and no personal disqualification excluding him either
permanently or temporarily from being a Representative. The legislative
power to punish Members could not be used in regard to matters having
no legal recognition. According to Cushing's Law and Practice of
Legislative Assemblies, ``Expulsion from a former or from the same
legislative assembly can not be regarded as a personal
disqualification, unless specially provided by law.'' The Wilkes case
was cited in support of this authority. The power of the House of
Representatives in each Congress was ample and complete to punish its
Members for disorderly behavior or misconduct. The House of the last
Congress had tried Mr. Matteson; but what offense had he committed
against this House? With what act of disorderly behavior was he
charged? The fact that he had been elected to the Thirty-fifth Congress
before the resolutions of censure were passed in the Thirty-fourth
Congress, if material, did not, in the committee's opinion, change the
case, since the charges against Mr. Matteson were known to the people
of his district before they reelected him. With the judgment pronounced
by
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\1\ See section 1275 of this chapter for proceedings at that time.
\2\ This report is quoted at length. Globe, p. 886.
\3\ First session Thirty-fifth Congress, House Report No. 179.
Sec. 1286
the House in the Thirty-fourth Congress, its power ended. Mr. Matteson
was thenceforth amenable only to the people of his district.
The views of the minority, signed by Mr. Samuel R. Curtis, of Iowa,
expressed the opinion that the House had the inherent power to protect
itself against external and internal corruption; and that, under the
Constitution, the House might expel for whatever reasons might seem
necessary to guard against blight, decay, or destruction. The power was
plenary; restrained by the two-thirds vote in order to prevent
tyrannical exercise. The power to expel was not merely the power to
inflict punishment. It was the power to remove an obstacle to the
progress of legitimate business and secure a wholesome exercise of the
House's function.
The report of the committee was considered on March 27, and during
consideration of the resolution recommended by the majority the whole
subject was laid on the table, yeas 96, nays 69.
1286. Members being charged with bribery committed several years
before the election of the then existing House, the House preferred
censure to expulsion, but declined to express doubt as to the power to
expel.
Discussion of the power of expulsion in its relations to offenses
committed before the Member's election; and in relation to the power of
impeachment.
A Member against whom a resolution of expulsion was pending was
permitted to address the House as a matter of right.
Charges having been made against the Speaker, he called another
Member to the chair and from the floor moved a committee of
investigation.
The Speaker being implicated by certain charges, a Speaker pro
tempore selected from the minority party was empowered to appoint a
committee of investigation.
On December 2, 1872,\1\ the Speaker \2\ called Mr. Samuel S. Cox, of
New York, a member of the minority party on the floor, to the chair,
and having taken the floor on a question of privilege \3\ addressed the
House on the subject of certain charges, made against himself and other
Members of the House, in connection with the Credit Mobilier
corporation and the Union Pacific Railroad Company. He concluded his
remarks by moving a resolution that a special investigating committee
of five members be appointed by the Speaker pro tempore to ascertain
whether any Members had been bribed.
The Speaker pro tempore \4\ named the following committee: Luke P.
Poland, of Vermont; Nathaniel P. Banks, of Massachusetts; James B.
Beck, of Kentucky; William E. Niblack, of Indiana; and George W.
McCrary, of Iowa. On December 3, Mr. Beck asked to be excused, and the
question being put the House excused him from service. The Speaker
thereupon called Mr. Cox to the chair again, and the latter appointed
Mr. William M. Merrick, of Maryland, to the vacancy.
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\1\ Third session Forty-second Congress, Globe, pp. 11, 15; Journal,
pp. 8, 30.
\2\ James G. Blaine, of Maine, Speaker.
\3\ The language of the Journal (p. 8) is: ``Mr. Blaine, by unanimous
consent (Mr. Cox occupying the chair), submitted,'' etc. As the matter
was evidently privileged the unanimous consent was apparently asked to
enable the Speaker to participate in debate. See sections 1367-1376 of
this volume.
\4\ Samuel S. Cox, of New York, Speaker pro tempore.
Sec. 1286
The committee made its report on February 18, 1873, embodying its
findings of fact and recommendations in the following resolutions: \1\
1. Whereas Mr. Oakes Ames, a Representative in this House from the
State of Massachusetts, has been guilty of selling to Members of
Congress shares of stock in the Credit Mobilier of America for prices
much below the true value of such stock, with intent thereby to
influence the votes and decisions of such Members in matters to be
brought before Congress for action: Therefore,
Resolved, That Mr. Oakes Ames be, and he is hereby, expelled from his
seat as a Member of this House.
2. Whereas Mr. James Brooks, a Representative in this House from the
State of New York, did procure the Credit Mobilier Company to issue and
deliver to Charles H. Neilson, for the use and benefit of said Brooks,
50 shares of the stock of said company at a price much below its real
value, well knowing that the same was so issued and delivered with
intent to influence the votes and decisions of said Brooks as a Member
of the House in matters to be brought before Congress for action, and
also to influence the action of said Brooks as a Government director in
the Union Pacific Railroad Company: Therefore,
Resolved, That Mr. James Brooks be, and he is hereby, expelled from
his seat as a Member of this House.
The statement of facts in the report shows that these transactions
occurred before Messrs. Brooks and Ames were elected to the Forty-
second Congress. The report says:
In considering what action we ought to recommend to the House upon
these facts, the committee encounters a question which has been much
debated: Has this House power and jurisdiction to inquire concerning
offenses committed by its Members prior to their election, and to
punish them by censure or expulsion? The committee are unanimous upon
the right of jurisdiction of this House over the cases of Mr. Ames and
Mr. Brooks, upon the facts found in regard to them. Upon the question
of jurisdiction the committee present the following views:
The Constitution in the fifth section of the first article, defines
the power of either House as follows: ``Each House may determine the
rules of its proceedings, punish its Members for disorderly behavior,
and with the concurrence of two-thirds expel a Member.''
It will be observed that there is no qualification of the power, but
there is an important qualification of the manner of its exercise--it
must be done ``with the concurrence of two-thirds.''
The close analogy between this power and the power of impeachment is
deserving of consideration.
The great purpose of the power of impeachment is to remove an unfit
and unworthy incumbent from office, and though a judgment of
impeachment may to some extent operate as punishment, that is not its
principal object. Members of Congress are not subject to be impeached,
but may be expelled, and the principal purpose of expulsion is not as
punishment, but to remove a Member whose character and conduct show
that he is an unfit man to participate in the deliberations and
decisions of the body, and whose presence in it tends to bring the body
into contempt and disgrace.
In both cases it is a power of purgation and purification to be
exercised for the public safety, and, in the case of expulsion, for the
protection and character of the House. The Constitution defines the
causes of impeachment, to wit, ``treason, bribery, or other high crimes
and misdemeanors.'' The office of the power of expulsion is so much the
same as that of the power to impeach that we think it may be safely
assumed that whatever would be a good cause of impeachment would also
be a good cause of expulsion.
It has never been contended that the power to impeach for any of the
causes enumerated was intended to be restricted to those which might
occur after appointment to a civil office, so that a civil officer who
had secretly committed such offense before his appointment should not
be subject upon detection and exposure to be convicted and removed from
office. Every consideration of justice and sound policy would seem to
require that the public interests be secured, and those chosen to be
their guardians be free from the pollution of high crimes, no matter at
what time that pollution had attached.
If this be so in regard to other civil officers, under institutions
which rest upon the intelligence and virtue of the people, can it well
be claimed that the law-making Representative may be vile and criminal
with impunity, provided the evidences of his corruption are found to
antedate his election?
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\1\ Journal, p. 429; Globe, pp. 1462-1468; House Report No. 77, Third
session Forty-second Congress.
Sec. 1286
The committee then discuss the cases of Smith \1\ and Marshall in the
Senate, of Wilkes in the English Parliament, and of Matteson \2\ in the
House of Representatives, and continues:
The committee have no occasion in this report to discuss the question
as to the power or duty of the House in a case where a constituency,
with a full knowledge of the objectionable character of a man, have
selected him to be their representative. It is hardly a case to be
supposed that any constituency, with a full knowledge that a man had
been guilty of an offense involving moral turpitude, would elect him.
The majority of the committee are not prepared to concede such a man
could be forced upon the House, and would not consider the expulsion of
such a man any violation of the rights of the electors, for while the
electors have rights that should be respected, the House as a body has
rights also that should be protected and preserved. But that in such
case the judgment of the constituency would be entitled to the greatest
consideration, and that this should form an important element in its
determination, is readily admitted.
It is universally conceded, as we believe, that the House has ample
jurisdiction to punish or expel a Member for an offense committed
during his term as a Member, though committed during a vacation of
Congress and in no way connected with his duties as a Member. Upon what
principle is it that such a jurisdiction can be maintained? It must be
upon one or both of the following: That the offense shows him to be an
unworthy and improper man to be a Member, or that his conduct brings
odium and reproach upon the body. But suppose the offense has been
committed prior to his election, but comes to light afterwards, is the
effect upon his own character, or the reproach and disgrace upon the
body, if they allow him to remain a Member, any the less? We can see no
difference in principle in the two cases, and to attempt any would be
to create a purely technical and arbitrary distinction, having no just
foundation. In our judgment the time is not at all material, except it
be coupled with the further fact that he was reelected with a knowledge
on the part of his constituents of what he had been guilty, and in such
event we have given our views of the effect.
It seems to us absurd to say that an election has given a man
political absolution for an offense which was unknown to his
constituents. If it be urged again, as it has sometimes been, that this
view of the power of the House, and the true ground of its proper
exercise, may be laid hold of and used improperly, it may be answered
that no rule, however narrow and limited, that may be adopted can
prevent it. If two-thirds of the House shall see fit to expel a man
because they do not like his political or religious principles, or
without any reason at all, they have the power, and there is no remedy
except by appeal to the people. Such exercise of the power would be
wrongful, and violative of the principles of the Constitution, but we
see no encouragement of such wrong in the views we hold.
As to this general subject of the jurisdictional power of the House,
Messrs. Niblack and McCrary preferred to express no opinion, but the
entire committee were united upon the following:
The subject-matter upon which the action of Members was intended to
be influenced was of a continuous character, and was as likely to be a
subject of Congressional action in future Congresses as in the
Fortieth. The influences brought to bear on Members were as likely to
be operative on them in the future as in the present, and were so
intended. Mr. Ames and Mr. Brooks have both continued Members of the
House to the present time, and so have most of the Members upon whom
these influences were sought to be exerted. The committee are,
therefore, of opinion that the acts of these men may properly be
treated as offenses against the present House, and so within its
jurisdiction upon the most limited rule.
On February 24, before the resolutions of the investigating committee
had been acted on by the House, Mr. Benjamin F. Butler, of
Massachusetts, from the Com-
-----------------------------------------------------------------------
\1\ For Mr. Adams's report in the Smith case, see Congressional
Globe, first session Thirty-fifth Congress, p. 886. Also section 1264
of this chapter.
\2\ See section 1275 of this chapter.
Sec. 1286
mittee on the Judiciary, made a report \1\ on the testimony taken by
the investigating committee, particularly on the question whether or
not it warranted articles of impeachment of any officer of the United
States. This report reviewed the argument of the investigating
committee on the subjects of impeachment and expulsion, and reached
opposite conclusions. The members of the Judiciary Committee who joined
with Mr. Butler in this report were Messrs. John A. Bingham, of Ohio;
Charles A. Eldredge, of Wisconsin; John A. Peters, of Maine; Lazarus D.
Shoemaker, of Pennsylvania, and Daniel W. Voorhees, of Indiana. Mr.
Clarkson N. Potter, of New York, dissented from the report; and Mr.
Jeremiah M. Wilson, of Indiana, concurred in so much of the report as
related to impeachment but expressed no opinion on the subject of
expulsion.
The report combats the idea that impeachment and expulsion are
similar or analogous proceedings. Impeachment disqualified the
impeached from ever after holding office; the expelled Member might be
reelected after expulsion. Neither impeachment nor expulsion should be
invoked for offenses committed before election. The report continues:
The plain words of the Constitution seem to us clearly to indicate
that the power of expulsion is a protective, not a primitive, provision
of the Constitution. It is found in section 5 of Article I: ``Each
House may determine the rules of its proceedings, punish its Members
for disorderly behavior, and, with the concurrence of two-thirds, expel
a Member.'' Expel for what? For disorderly behavior, i.e., for that
behavior which renders him unfit to do his duties as a Member of the
House, or that present condition of mind or body which makes it unsafe
or improper for the House to have him in it. We submit, with some
confidence, that the House might expel an insane man, because it might
not be safe or convenient for the House to have him within the
legislative Hall. They can also expel a man for disorderly proceedings
in the body, or for such acts outside of the body as render it at the
time mani-festly improper for him to be in the House. But your
committee are constrained to believe that the power of expelling a
Member for some alleged crime, committed, it may be, years before his
election, is not within the constitutional prerogative of the House.
We do not overlook the argument presented by the learned committee,
upon whose report we are observing, by the phrase: ``Every
consideration of justice and sound policy would seem to require that
the public interests be secured and those chosen to be their guardians
be free from pollution of high crimes, no matter at what time that
pollution had attached.'' But the answer seems to us an obvious one
that the Constitution has given to the House of Representatives no
constitutional power over such considerations of ``justice and sound
policy'' as a qualification in representation. On the contrary, the
Constitution has given this power to another and higher tribunal, to
wit, the constituency of the Member. Every intendment of our form of
government would seem to point to that. This is a Government of the
people, which assumes that they are the best judges of the social,
intellectual, and moral qualifications of their representatives, whom
they are to choose, not anybody else to choose for them; and we,
therefore, find in the people's Constitution and frame of government
they have, in the very first article and second section, determined
that ``the House of Representatives shall be composed of Members chosen
every second year by the people of the States,'' not by Representatives
chosen for them at the will and caprice of Members of Congress from
other States according to the notions of the ``necessities of self-
preservation and self-purification,'' which might suggest themselves to
the reason or the caprice of the Members from other States in any
process of purgation or purification which two-thirds of the Members of
either House may ``deem necessary'' to prevent bringing ``the body into
contempt and disgrace.''
Your committee are further emboldened to take this view of this very
important constitutional question, because they find that in the same
section it is provided what shall be the qualifications of a
representative of the people, so chosen by the people themselves. On
this it is solemnly enacted,
-----------------------------------------------------------------------
\1\ Third session Forty-second Congress, House Report No. 81.
Sec. 1286
unchanged during the life of the nation, that ``No person shall be a
Representative who shall not have attained the age of twenty-five
years, and been seven years a citizen of the United States, and who
shall not, when elected, be an inhabitant of that State in which he
shall be chosen.''
Your committee believe that there is no man or body of men who can
add or take away one jot or title of these qualifications. The
enumeration of such specified qualifications necessarily excludes every
other. It is respectfully submitted that it is nowhere provided that
the House of Representatives shall consist of such Members as are left
after the process of ``purgation and purification'' shall have been
exercised for the public safety, such as may be ``deemed necessary'' by
any majority of the House. The power itself seems to us too dangerous,
the claim of power too exaggerated, to be confided in any body of men;
and, therefore, most wisely retained in the people themselves, by the
express words of the Constitution.
The report then discusses the dangers that might arise from the
contrary view, the precedents in the Smith, Marshall, and Wilkes cases,
and concludes the argument as follows:
Our opinion upon the whole matter, therefore, is that the right of
representation is the right of the constituency, and not that of the
Representative, and, so long as he does nothing which is disorderly or
renders him unfit to be in the House while a Member thereof, that,
except for the safety of the House, or the Members thereof, or for its
own protection, the House has no right or legal constitutional
jurisdiction or power to expel the Member. We see no constitutional
warrant for his expulsion upon any other ground, and especially not
upon the ground of purgation and purification as set forth in the
report of the learned committee, against which your committee most
earnestly and respectfully protest.
Your committee do not feel called upon to discuss in this connection
the legal consequences following from the doctrine of continuation of
the offense in a man once receiving a bribe, because, if it may be laid
with a continuando at all, the offense must continue to affect him ever
after, and therefore, having once taken a bribe, he is always deemed to
be under the effect of it, for the reason that we are inclined to
believe that at some time the effect of the bribe might have spent its
force, and it would hardly be a safe rule of legal action to undertake
to determine whether that would not happen in five years and might
happen in ten. Certainly such considerations would not apply to one who
had given a bribe, because the virtue thereof all went out of him when
he parted with his money, and there was nothing left in him save the
loss of it.
For the reasons so hastily stated, and many more which might be
adduced, your committee conclude that both the impeaching power
bestowed upon the two Houses by the Constitution and the power of
expulsion are remedial only, and not punitive, so as to extend to all
crimes at all times, and are not to be used in any constitutional sense
or right for the purpose of punishing any man for a crime committed
before he became a Member of the House, or in case of a civil officer,
as just cause of impeachment; but we agree the analogy stated by the
learned committee on Credit Mobilier is in so far perfect. Both are
alike remedial, neither punitive.
On February 25, 1873,\1\ the consideration of the report began in the
House. On that day the Speaker said:
The gentleman from Massachusetts, Mr. Ames, affected by this report,
desires to be heard. The gentleman is entitled to the floor.
Mr. Ames thereupon sent his remarks to the desk to be read.\2\
On February 26 Mr. Aaron A. Sargent, of California, offered a
substitute for the resolutions, which, after modification, was as
follows:
Whereas by the report of the special committee herein it appears that
the acts charged as offenses against Members of this House in
connection with the Credit Mobilier occurred more than five years ago,
and long before the election of such persons to this Congress, two
elections by the people having intervened; and whereas grave doubts
exist as to the rightful exercise by this House of its power to expel a
-----------------------------------------------------------------------
\1\ Third session Forty-second Congress, Journal, pp. 429, 490, 497-
499; Globe, pp. 1717, 1723, 1727, 1732, 1816, 1824, 1826, 1830-1833.
\2\ Globe, p. 1723.
Sec. 1287
Member for offenses committed by such Member long before his election
thereto, and not connected with such election: Therefore
Resolved, That the special committee be discharged from the further
consideration of this subject.
Resolved, That the House absolutely condemns the conduct of Oakes
Ames, a Member of thisHouse from Massachusetts, in seeking to procure
Congressional attention to the affairs of a corporation in which he was
interested, and whose interest directly depended upon the legislation
of Congress, by inducing Members of Congress to invest in the stocks of
said corporation.
Resolved, That this House absolutely condemns the conduct of James
Brooks, a Member of this House from New York, for the use of his
position of Government director of the Union Pacific Railroad and of
Member of this House to procure the assignment to himself or family of
stock in the Credit Mobilier of America, a corporation having a
contract with the Union Pacific Railroad, and whose interests depended
directly upon the legislation of Congress.
A motion to lay the whole subject on the table was negatived on
February 27 by a vote of yeas 58, nays 165.
The question then recurred on the adoption of the substitute, which
was agreed to, yeas 115, nays 110.
Thereupon voting began on the original resolutions as amended by the
substitute, the first vote being taken on the resolution condemning
Oakes Ames. This was adopted, yeas 182, nays 36. Then the resolution
condemning James Brooks was agreed to, yeas 174, nays 32.
The resolution discharging the committee having been disagreed to,
yeas 104, nays 114, the question recurred on the preamble. Mr. Charles
A. Eldredge, of Wisconsin, called for a separate vote on the two
propositions of the preamble.
The Speaker ruled that the preamble was not divisible.
The question recurring on the adoption of the preamble, a motion to
lay on the table was disagreed to, yeas 78, nays 134. Then the preamble
was disagreed to, yeas 98, nays 113.\1\
1287. The Speaker has questioned the right of a Member to discuss as
privileged charges relating to his conduct at a period before he became
a Member.--On May 23, 1884,\2\ Mr. William Pitt Kellogg, of Louisiana,
claiming the floor for a question of privilege, after remarks submitted
the following:
Whereas in the investigation as to the prosecution of the star route
cases before the Committee on Expenditures in the Department of Justice
evidence has been given which reflects upon the character of William
Pitt Kellogg, a Member of this House: Therefore,
Resolved, That said committee be directed to investigate the subject
of said Kellogg's alleged connection with the ``star route'' service,
and whether he received money for services rendered in a matter pending
before one of the Departments of the Government, or whether he paid
money to any officer of the Government on account of or in connection
with said service; and that said committee be authorized to send for
persons and papers, etc.
Mr. William R. Morrison, of Illinois, made the point of order, as Mr.
Kellogg proceeded with his remarks, that no question of privilege was
involved.
The Speaker \3\ called attention to the fact that the transactions
occurred in 1879, and said:
The Chair has intimated heretofore that this House has no right to
punish a Member for any offense alleged to have been committed previous
to the time when he was elected as a Member of the
-----------------------------------------------------------------------
\1\ For long and careful debate on the expulsion of Members in
connection with this case see Globe, third session Forty-second
Congress, pp. 137, 159, 164, 176, 188, 195.
\2\ First session Forty-eighth Congress, Journal, p. 1304; Record,
pp. 4432-4439,
\3\ John G. Carlisle, of Kentucky, Speaker.
Sec. 1288
House. That has been so frequently decided in the House that it is no
longer a matter of dispute. The resolution which the gentleman sends up
directs the committee to investigate certain charges made against the
Member from Louisiana, but does not state the time when the alleged
offense was committed, if at all, so that the resolution may be
entirely in order, but the gentleman from Louisiana is discussing
matters which he admits occurred several years ago and before his
election. He can not proceed to discuss such matters without unanimous
consent, as was decided in the Forty-sixth Congress in the case of Mr.
Chalmers, of Mississippi.
Mr. Nathaniel J. Hammond, of Georgia, urged that the House should not
investigate the conduct of a Member at a time prior to his election to
the House. On the other hand, it was urged that the report in the
Credit Mobilier cases, as well as in the case of Blount, in the Senate,
justified such an investigation. Finally, on motion of Mr. Hammond, by
a vote of ayes 82, noes 49, the resolution was referred to the
Committee on the Judiciary.
No report appears to have been made.\1\
1288. In the case of Humphrey Marshall, accused of committing a crime
before his election, the Senate declined to proceed in the absence of
prosecuting action from the constituency.
The Senate held, in 1796, that for a crime alleged to have been
committed before his election, but for which the courts had not held
him to answer, a Senator should not be tried by the Senate.
On February 26, 1796,\2\ the Vice-President laid before the Senate a
letter from the governor of Kentucky, with a memorial, making serious
charges against the character of Humphrey Marshall, a Senator from
Kentucky. On February 29 these papers were, on motion of Mr. Marshall,
referred to a select committee, consisting of Messrs. Samuel Livermore,
of New Hampshire; James Ross, of Pennsylvania; Rufus King, of New York;
John Rutherfurd, of New Jersey, and Caleb Strong, of Massachusetts.
On March 17 the committee submitted a report, which, after being
amended by the Senate in slight particulars where personal questions
might be raised, stood as follows:
The committee to whom was referred the letter of the governor and the
memorial of the representatives of Kentucky, with the papers
accompanying them, report:
That the representatives of the freemen of Kentucky state in their
memorial that in February, 1795, a pamphlet was published by George
Muter and Benjamin Sebastian (who were two judges of the court of
appeals), in which they say that Humphrey Marshall had a suit in
chancery in the said court of appeals, in which it appearing manifest
from the oath of the complainant, from disinterested testimony, from
records, from documents furnished by himself, and from the
contradictions contained in his own answer, that he had committed a
gross fraud, the court gave a decree against him; and that in the
course of the investigation he was publicly charged with perjury. That
Mr. Marshall, in a publication in the Kentucky Gazette, called for a
specification of the charge; to which the said George Muter and
Benjamin Sebastian, in a like publication, replied that he was guilty
of perjury in his answer to the bill in chancery exhibited against him
by James Wilkinson, and that they would plead justification to any suit
brought against them therefor. That no such suit, as the said
representatives could learn, had been brought. The said representatives
further say that they do not mean to give an opinion on the justice of
the said charge, but request that an investigation may immediately take
place relative thereto.
-----------------------------------------------------------------------
\1\ See also Section 466 of Volume I of this work.
\2\ Election Cases, Senate Document No. 11, special session Fifty-
eighth Congress, p. 168.
Sec. 1288
Your committee observe that the said suit was tried eighteen months
before Mr. Marshall was chosen a Member of the Senate, and that
previous to his election mutual accusations had taken place between him
and the judges of the said court relating to the same suit.
The representatives of Kentucky have not furnished any copy of Mr.
Marshall's answer on oath, nor have they stated any part of the
testimony, or produced any of the said records or documents, or the
copy of any paper in the cause, nor have they intimated a design to
bring forward those or any other proofs.
Your committee are informed by the other Senator and the two
Representatives in Congress from Kentucky that they have not been
requested by the legislature of that State to prosecute this inquiry,
and that they are not possessed of any evidence in the case, and that
they believe no person is authorized to appear on behalf of the
legislature.
Mr. Marshall is solicitous that a full investigation of the subject
shall take place in the Senate, and urges the principle that consent
takes away error, as applying, on this occasion, to give the Senate
jurisdiction; but, as no person appears to prosecute, and there is no
evidence adduced to the Senate, nor even a specific charge, the
committee think any further inquiry by the Senate would be improper. If
there were no objections of this sort, the committee would still be of
opinion that the memorial could not be sustained. They think that in a
case of this kind no person can be held to answer for an infamous crime
unless on a presentment or indictment of a grand jury, and that in all
such prosecutions the accused ought to be tried by an impartial jury of
the State and district wherein the crime shall have been committed. If,
in the present case, the party has been guilty in the manner suggested,
no reason has been alleged by the memorialists why he has not long
since been tried in the State and district where he committed the
offense. Until he is legally convicted, the principles of the
Constitution and of the common law concur in presuming that he is
innocent. And the committee are compelled, by a sense of justice, to
declare that in their opinion the presumption in favor of Mr. Marshall
is not diminished by the recriminating publications which manifest
strong resentment against him.
And they are also of opinion that as the Constitution does not give
jurisdiction to the Senate the consent of the party can not give it;
and that therefore the said memorial ought to be dismissed.
Resolved, That the Vice-President of the United States be requested
to transmit a copy of the foregoing report to the governor of Kentucky.
A motion to expunge the last clause was disagreed to, yeas 7, nays
16.
On the question to expunge these words ``If there were no objections
of this sort, the committee would still be of opinion that the memorial
could not be sustained,'' it passed in the negative.
On the question to expunge the following words: ``They think that in
a case of this kind no person can be held to answer for an infamous
crime unless on a presentment or indictment of a grand jury, and that
in all such prosecutions the accused ought to be tried by an impartial
jury of the State and district wherein the crime shall have been
committed. If in the present case the party has been guilty in the
manner suggested, no reason has been alleged why he has not long since
been tried in the State and district where he committed the offense.
Until he is legally convicted, the principles of the Constitution and
of the common law concur in presuming that he is innocent''--it passed
in the negative.
Also by a vote of yeas 7, nays 17, the Senate decided in the negative
a motion to postpone the report of the committee to whom was referred
the letter from the governor and the memorial of the Representatives of
the State of Kentucky, with the papers accompanying them, together with
the motions of amendment made thereon, in order to consider the
following resolution:
Whereas the honorable legislature of the State of Kentucky have, by
their memorial, transmitted by the governor of the said State, informed
the Senate that Humphrey Marshall, a Senator from the said State, had
been publicly charged with the crime of perjury, and requested that an
inquiry might be
Sec. 1289
thereupon instituted, in which request the said Humphrey Marshall has
united; and it being highly interesting, as well to the honor of the
said State as to that of the Senate, and an act of justice due to the
character of the said Humphrey Marshall that such inquiry should be
had, therefore
Resolved, That the Senate will proceed to the examination of the said
charge on the -------- day of the next session of Congress; that, in
the opinion of the Senate, a conviction or acquittal in the ordinary
courts of justice of the said State would be the most satisfactory
evidence on this occasion; but that, if this should not be attainable,
by reason of any act of limitation or other legal impediment, such
other evidence will be received as the nature of the case may admit and
require.
Resolved, That the Vice-President be requested to transmit a copy of
the foregoing resolution to the governor of the said State.
On March 22, the Senate by a vote of yeas 16, nays 8, agreed to the
report in the form given above.
1289. In the case of William N. Roach, charged with a crime alleged
to have been committed before his election, the Senate discussed its
power in such a case but took no action.--In 1893 \1\ the Senate
discussed the case of William N. Roach, Senator from North Dakota.
On the 28th day of March, 1893, Mr. Hoar submitted a resolution
providing for an investigation of certain allegations charging Mr.
Roach with the offense of criminal embezzlement. On the 10th day of
April, 1893 a substitute for this resolution was introduced by Mr.
Hoax, and on the 14th day of April, 1893, a substitute for the
resolutions then pending in said matter was introduced by Mr. Gorman.
The resolution and the substitutes were the subject of debate in the
Senate, but no action was had or taken thereon.
It appears from the debates that the case presented the question as
to the right of the Senate to take cognizance of an accusation against
a Senator of an offense committed before his election to the Senate.\2\
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\1\ Election cases, Senate Doc. No. 11, special session Fifty-eighth
Congress, p. 809.
\2\ First session Fifty-third Congress, Record, pp. 37, 111, 137,
140, 155, 160.