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either of officer, Counsellor, or Assistant should hold him in any bond where he stood. This he desired, not for his own satisfaction, but that it might be a satisfaction to others who might scruple his liberty herein. After much debate the Court made a general order which gave him satisfaction.”
In the early days of Maryland one Weston pleaded that he was not a freeman because he had no land or certain dwelling, but the Assembly voted he was a freeman and compelled him to serve. Need for such compulsion disappeared long ago and probably nowhere in the world would its exercise to-day be attempted. At last accounts the Constitution of Norway still said that every one who is elected a Representative is bound to accept, unless he has been a Minister or Councilor of State and is chosen by a district in which he is not a voter, or is prevented by reasons the Storthing considers lawful; but having served in the three regular sessions following an election, he is not bound to serve again. The chances are the provision is a dead letter.
Apparently it was once thought that a line could be drawn between refusal to begin and refusal to continue service, or else that eminent parliamentary authority, L. S. Cushing, editing the first volume of "Massachusetts Election Cases," would not have said in a note on page 30): "It is probably true that every person elected a member of a legislative assembly may decline the office, but if he accepts, and takes his seat, it may be doubted whether he can resign without the consent of the body of which he is a member.” In his authoritative work on the “Law and Practice of Legislative Assemblies” he reiterated the doubt, but added that the consent of the assembly is always implied unless there is some expression to the contrary. Presumably his doubt sprang from the English rule, which always has been that no Englishman once seated in Parliament may resign. In practice the rule has little or no effect. By statute the member who accepts a civil office vacates his seat. There are certain nominal offices with no duties attached to them that are kept alive for use when a member wishes to withdraw from the House. That most commonly used and best known is the stewardship of the Chiltern Hundreds. A member may not get one of these appointments of right, but it is seldom or never refused. Upon appointment, resignation of course immediately follows. The Virginian Assembly once went to the extreme of holding it could not relieve a Burgess of the duties of membership even when his constituents had formally requested that the privilege of absence from the sittings be granted to him. The House was of the belief that once a seat had been taken, it could not be vacated by the action of the House unless the occupant had been found guilty of some heinous offense. Gradually, however, the opposite view gained support. It seems to have won acceptance by the time when Pennsylvania furnished the most interesting resignation story in American annals. There the Quakers controlled the Assembly from the start up to 1756. Then the outbreak of the French and Indian War brought a serious dilemma, for the Quakers could not consistently vote money for military purposes. The only recourse seemed to be the taking away of their power and to that end a bill was introduced in Parliament to exclude from the Pennsylvania Assembly all who would not take the Oath of Allegiance, which no Quaker would take. Powerful Friends intervened, securing delay until two of their number could go to the colony and try persuasion. Before their arrival several of the Quaker members refused to be candidates for reëlection and afterward others consented to resign, in number enough to give the majority to adherents of other faiths. Once Quaker control had been ended, it was never resumed.
1 Maryland Archives, 1, 176.
Nowadays it is not probable that a protest against resignation would get serious attention anywhere.
In Congress, from the beginning, it has been the practice to hold that a member ceases to be such from the moment his resignation is handed in at the Clerk's desk. The practice was questioned in 1870, when B. F. Whittemore, of South Carolina, handed in his resignation while the House was considering the advice of its Committee on Military Affairs that he be expelled for having sold appointments to the Military and Naval Academies. N. P. Banks and H. L. Dawes urged that a member of a parliamentary body could not resign without the consent of that body, since the contrary doctrine would menace its very existence. It was, however, decided that the resignation was valid. The motion for expulsion was laid on the table, and resolutions condemning Whittemore's conduct were passed.
One of the disqualifications urged against Senator James Davis in the first General Assembly of Iowa was that he had resigned his office, but it was held that inasmuch as the resignation had not been accepted, it had not taken effect.
1 P. A. Bruce, Institutional Hist. of Va., II, 466.
Failure to attend will be treated as a resignation. In 1870 David S. Draper, of Great Barrington, elected to the Massachusetts House, did not present himself for qualification as a member. On the 20th of January the House directed its Committee on Elections to ascertain whether he intended to qualify. He made an indefinite answer, whereupon the House declared the seat vacant and ordered a new election.
From time immemorial it has been deemed the right of legislative bodies to expel members thought unfit. Some of the notable instances will show the grounds that have been held to warrant exercise of the power. The first case recorded in Parliament was that of one Terrill, who was sent to the Tower for telling Henry VII of the measures then under discussion in the House. Both he and his posterity were disabled from ever serving as members. In 1580 Arthur Hall, Burgess for Grantham, was charged with having caused to be published a book "not only reproaching some particular good members of the House, but also very much slanderous and derogatory to its general authority, power, and state, and prejudicial to the validity of its proceedings in making and establishing of laws." He had previously incurred the displeasure of the Commons, in 1572, when he was ordered to appear at the bar to answer for "sundry lewd speeches," used as well in the House as elsewhere. Regarding him now as incorrigible, the House exhausted its wrath in punishments. In spite of his humble submission, they unanimously expelled him, imposed a fine of five hundred marks, and sent him to the Tower until he should make a satisfactory retraction. Four years later the famous Doctor Parry suffered because he spoke warmly in denouncing as cruel and bloody a bill inflicting the penalty of death on Jesuits and seminary priests. Charged with opposing a bill approved by a
. committee, he was ordered into the custody of the sergeant, the Speaker was directed to reprimand him upon his knees, and on his failing to make an acceptable apology, he was voted out of the House.
In the reign of James I, De Lolme recalls," Sir Giles Montpesson, having been guilty of monopolies, and other acts of great oppression on the people, was not only expelled from the House of Commons, but was impeached, was prosecuted with the greatest warmth by the House, and finally was condemned by the Lords to be publicly degraded from his rank of a knight, to be held forever an infamous person, and to be imprisoned during life. In the same reign, Sir John Benet, having been found guilty of corrupt practices, such as taking exorbitant fees, and the like, in his capacity of judge of the Prerogative Court of Canterbury, was expelled the House, and prosecuted. In 1641, Henry Benson, having been detected in selling protections, experienced likewise the indignation of the House and was expelled. “In fine," says De Lolme, "in order, as it were, to make it completely notorious, that neither the condition of representative of the people, nor even any degree of influence in their House, could excuse any one of them from strictly observing the rules of justice, the Commons did, on one occasion, pass the most severe censure they had the power to inflict, upon their Speaker himself, for having, in a single instance attempted to convert the discharge of his duty, as Speaker, into the means of private emolument, — Sir John Trevor, Speaker of the House of Commons, having, in the sixth year of the reign of King William, received a thousand guineas from the city of London, 'as a gratuity for the trouble he had taken with regard to the passing of the Orphan Bill,' was voted guilty of a high crime and misdemeanour, and expelled the House. Even the inconsiderable sum of twenty guineas, which Mr. Hungerford, another member, had been weak enough to accept on the same score, was looked upon as deserving the notice of the House, and he was likewise expelled.”
In 1796, Colonel Cawthorne, by a court-martial found guilty of embezzlement, cashiered, and rendered unfit to serve the King in any military capacity whatever, was expelled as an unfit person to hold a seat in Parliament. In 1812, Benjamin Walsh, a stock-broker, having been convicted at the Old Bailey of a fraud upon Sir Thomas Plomer, met with the same fate; the plea in mitigation, that he had paid four thousand guineas for his seat for Wooton Bassett, did not avail to save him, notwithstanding the wishes and recorded opinions of Sir Samuel
· The Constitution of England, bk. II, ch. 16.
Romilly. “I thought it extremely dangerous," Romilly says in his diary, “that the House should assume to itself a power of expelling any of its members merely on the ground of their having been guilty of gross immorality. Such a censorial power cannot be intrusted to a popular assembly, acting, as it often necessarily must act, under the influence of a political prejudice, without being liable to the greatest abuse."
The history of exclusion and expulsion in this country begins with its very first legislative body, for when the Virginia House of Burgesses met in 1619, there was occasion to question the admission of the Burgesses from Martin's Hundred. Martin's patent exempted him from obedience to the laws and authority of the colony except in matters of defense. Moreover, his people had made trouble by dealing unfairly with the Indians. It was a dangerous situation and the leaders felt his Burgesses ought not to be admitted unless he would surrender part of his patent. This he refused to do and so his men were excluded. In later years there were various cases of expulsion and disqualification. For instance, in 1652, John Hammod, from the lower parish of Isle of Wight county, was expelled because he was "notoriously knowne a scandalous person and a frequent disturber of the peace of the country, by libell and other illegall practices." At the same session James Pyland, from the upper parish of the same county, was expelled as “an abetter of Mr. Thomas Woodward in his mutinous and rebellious declaration, and concerning his the said Mr. Pyland blasphemous chatechisme." 2
The Assembly of 1655 endorsed the principle involved in these cases by enacting that Burgesses should be "such and no other than such as are persons of knowne integrity and of good conversation.” This was reaffirmed in 1658. The same year it was enacted that persons guilty of "the odious sinnes of drunkennesse, blasphemous swearing and cursing, scandalous living in adultery and ffornication," besides being fined were to be held incapable of being witnesses or of holding any public office. Bribers were disqualified, even if the bribe were only promised and not delivered. In the session of 1742, one Henry Downs was charged with having helped to steal sheep; it was said that he had once confessed this offense in open court, and
*E. I. Miller, The Legislature of the Prorince of Virginia, 51, 52, 94. 2 Hening, Va. Statutes at Large, 1, 374.