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had been punished by fifteen lashes on the bare back, by being put into the stocks, and then by being sold into servitude for one year and nine months, to pay fees. The House declared he was guilty, expelled him, and disqualified him to sit in that Assembly. The same penalty was applied to William Andrews, whom the committee declared guilty of "many male and scandalous Practices, in the Office of Inspector.” That he had been dismissed from the offices of inspector and justice was evidence of his guilt.

The South Carolina Statutes of 1685 were passed by only seven members of the Parliament, the other thirteen having been expelled by the Governor for refusing to acknowledge the validity of the Fundamental Constitutions that John Locke had provided for the colony.

In that same year at the first meeting of the Pennsylvania Assembly after William Penn had gone back home, Nicholas More, one of the leading men in the province, who had been Chairman of the first Assembly and Speaker of the second, and was now Chief Justice and also a member of the Assembly, was accused of acting illegally and arbitrarily. Thereupon the Assembly expelled him, voting him “a public enemy to the Province and Territories, and a violator of the privileges of the freemen.

In the course of a long and sharp letter to the New Jersey Assembly of 1707, the Governor, Lord Cornbury, complained : “You have taken upon you, to administer an oath to one of your members, and have expelled him the House for refusing to take an oath, which you could not legally administer to him. This is most certainly robbing that member of his property, and a most notorious assuming to yourselves a negative voice to the freeholders election of their representatives; for which there can be no precedent found.” In reply the Assembly quibbled by saying: "We never did administer an oath (tho' we think we have power so to do), what oaths were administered were administered by justices of the peace before us. We expell’d that member for several contempts for which we are not accountable to your excellency, nor no body else in this province: We might lawfully expel him, and if we had so thought fit, might have rendered him incapable of ever sitting in this House; and of this many precedents may be produced.”

· Edward Channing, Hist. of the U.S., II, 122.


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About this time Major William Sandford signed an address to the Queen which the House three years later voted to be "a false and scandalous representation of the representative body of this province," and because of it they expelled him in spite of his plea that he signed as a member of the Council.

Expulsion was getting to be a habit in New Jersey. When in May of 1714 Governor Hunter summoned the Assembly to meet again and only nine members appeared, warrants were sent to several others, bringing four, whereupon the thirteen voted expulsion of all the rest of the members, including the Speaker, "for contempt of authority and neglect of the service of their country.” Also it was voted that those expelled might not sit if upon a new election they should be returned. Nevertheless, several of them were reëlected. They were refused their seats and the electors were obliged to vote over again.

When the Plymouth Colony revised its laws in 1658, the last clause of the law of 1638 concerning deputies was changed to read: “That all such Courts as Majestrates and Deputies are to acte in makeing of lawes and being assembled the Court in the first place take notice of theire members and if they find any unfitt for such a trust that they and the reason therof bee returned to the towne from whence they were sent that they may make choise of more fitt and able persons to send in their stead as the time will permitt.” 1 On the 4th of July, 1673, it was enacted by the Court that “those that are or shalbe sent from the severall Townes for to serve as deputies shall have a voate with the Majestrates in the purging of the Court untill by the above-said disaccepted." 2

The provision that the places of members sent home should be filled by the election of others, is to be noted in contrast to the contemporaneous practice of Rhode Island. At the fourth General Court of her two colonies, in May of 1650, it was ordered that in case any member upon complaint and trial, should prove to be unfit to hold his seat, the Assembly might suspend him and choose another in his place. Long afterward the Supreme Court of Massachusetts had occasion to address itself to this point. It was in 1826 that in an Opinion given to the House the Justices said (5 Pick. 517) that death, resignation, or removal out of the State were contingencies of which towns may be supposed to take the risk, when they make their · Plymouth Colony Records, XI, 92.

: Ibid., 235.


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election, but in the case of a seat vacated by the interference of the constituted authorities, they thought the place might be supplied by the town represented, because the inhabitants of the town would otherwise be deprived of their voice in the legislative department, without their consent, and this would be contrary to one of the fundamental principles of a free representative government. To be sure, the Justices were asked about a case where the authorities, that is, the General Court, had “called the Representative to another sphere of public duty,” and it might be held that if a district send a bad man to the Legislature, the district might be taking the same risk as in the case of death, resignation, or removal, but the general practice probably is to have the vacancy caused by expulsion filled by another election when time permits.

The troubles of the Revolutionary period gave the Legislatures of the new States plenty of occasion to pass judgment on members. For instance, in Massachusetts James Perry, of Easton, was charged with having sold a quantity of rye for the troops of the State (then on service in Rhode Island), at an extravagant price, namely, eighteen shillings a bushel in the new money, the Continental currency, though it appeared he had agreed to return the money to the Colonel buying, any time within two months at the rate of eight shillings hard for eighteen of the new. The committee, however, reported that he had no intention of depreciating the currency or injuring the State, and the report was approved.

The membership of Tories was not uncontested. In 1781 Abiel Lovejoy, returned a member from Vassalborough, was accused as “not friendly to the cause of America.” On his agreeing not to attempt to sit in the House, no further proceedings then took place, but when the next year he was elected again, he was ordered to withdraw from the House until the evidence should be produced, and then the matter seems to have been dropped. In 1783 Jerathmiel Bowers of Swansey was excluded because by a resolve of 1777 he had been disqualified from holding any position of honor or profit in the commonwealth. In the same year the House ordered Abiel Wood, of Pownalborough, to appear in his place and expelled him because he did not obey; a former General Court had put him under bond not to correspond in any way with the enemy.

In 1784 opinion had begun to change, for when Joshua Hubbard of Kittery was charged with having been an enemy to the country through the most difficult periods of the war, refusing to aid in raising money to carry it on, saying he hoped Great Britain would conquer, suffering himself to be carried to gaol rather than take arms or help raise money, trying to join the Quakers in order to avoid taking part in the contest, and subsequently relinquishing his pretensions to Quakerism when the affairs of the country wore a more promising aspect — yet the

committee said if all this were proved it would not disqualify him and he was allowed to remain. The next year John Williams of Deerfield, who in 1783 had been indicted for the part he had taken in the war, in favor of Great Britain, pleaded the benefit of the sixth article in the treaty and was allowed to keep his seat. This put an end to further questioning of Representatives-elect in this particular.

Shays's Rebellion in 1786 cost Moses Harvey of Montague his place, the ground being that he had been convicted of sedition and sentenced to an ignominious punishment. Two cases are recorded where sentence led to suspension rather than expulsion. In 1784-85 Jeremiah Learned of Oxford, under indictment for "seditiously and riotously opposing the collection of public taxes,” was suspended until he should be tried. In 1807-08 the Governor sent a communication to the House, stating that John Waite of Falmouth had been convicted of forgery, and on the motion of Joseph Story of Salem, who was to become the foremost commentator on constitutional law, Learned was suspended until he should be tried.

In those days there was no hesitation to recall old offenses. Elisha Fuller of Ludlow was convicted in 1791 of forging a certificate, purporting to be signed by two Selectmen, whereby they recommended him as “a person of sober life and conversation, and well qualified for the business of a retailer of spirituous liquors.” He had been sentenced to pay a fine, did not get a pardon or a reversal of the judgment, and ten years later was excluded from a seat in the General Court. James Morrell of Falmouth was more fortunate in 1816–17. He had been indicted in 1814 for stealing a town order to the amount of $15.12. The verdict had been set aside and a new trial ordered. The indictment, however, was quashed and the legislative committee vindicated him by refusing to recommend action.

Massachusetts has always acted in this matter under what may be called the common parliamentary law. In other words no specific constitutional authorization has been thought necessary. Her Supreme Court set forth the principle in Hiss v. Bartlett, 3 Gray 468 (1855). "The power of expulsion," said Chief Justice Lemuel Shaw, "is a necessary and incidental power, to enable the House to perform its high functions, and is necessary to the safety of the State. It is a power of protection. A member may be physically, mentally, or morally, wholly unfit; he may be afflicted with a contagious disease, or insane, or noisy, violent and disorderly, or in the habit of using profane, obscene, or abusive language. It is necessary to put extreme cases, to test a principle. If the power exists, the House must necessarily be the sole judge of the exigency which may justify and require its exercise.'

New Hampshire, New York, North Carolina, Kansas, and South Dakota have also refrained from explicitly referring to the power in their Constitutions. In Kansas the Supreme Court has found the power in the right of each House to be the judge of the qualifications of its members. The question rose in connection with a statute giving the court trying the cause, authority to remove any State, district, county, or township officer found intoxicated in any public place. When, in 1878, this threatened to bring about the removal of a member of the Legislature, it was held ' that the power to judge of qualifications was continuous, running through the entire term.

Some States have found occasion to mention the power of expulsion in their Constitutions, through the wish to limit it in one way or another. For instance, South Carolina said at the start: "The General Assembly and Legislative Council, respectively, shall enjoy all other privileges which have at any time been claimed or exercised by the Commons House of Assembly, but the Legislative Council shall have no power of expelling their own members." The inference is that expulsion had been a privilege claimed or exercised. Why it was denied to the Legislative Council is matter of surmise; perhaps it was because that body had only thirteen members. The prohibition was dropped in 1778, leaving the matter to be presumed from the clause about "other privileges."

Pennsylvania and Delaware, holding their Conventions at about the same time and in many particulars continuing

* State ex rel. v. Gilmore, 20 Kas. 551 (1878).

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