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every interest to be fully heard; every opportunity for the people and the press of the State to consider the issues, so that nothing -no serious mistake should be committed. should be committed. It is important, upon the other hand, to the people of the State that there should be no one sitting in this Assembly who is in hostility to the institutions of his country, who desires to occupy a seat here for the purpose of undermining and destroying constitutional government. It is important that a rule should be laid down, now that a party has arisen, or what claims to be a party, and organized for the purposes for which the Socialist party is organized, to say whether or not, now and hereafter, the members of that party are competent, under the Constitution, to sit here and perform the high duties which are devolved upon this sovereign body of the State.

The duty which is cast upon you is unwelcome. It was not created by the Assembly itself. It was created by the conduct and declarations and positions of the five Assemblymen and of their party. You are not sitting here as willing investigators or a willing court. You have taken your oaths to support the Constitution and the laws of the State. You have an express obligation an implied obligation -over and beyond that, to give all that is in you for the protection of the State, for the protection of the body which you constitute. And having that duty devolved upon you, you have no alternative except to pass upon and determine this issue.

Now, these questions are of such an exceptional nature that they were but little understood at the opening of this proceeding. They were but little understood by counsel. They were but little understood by the members of the Legislature, and they were less understood by the people of the State, because such a situation never arose before, and we have not, in recent years, been engaged either in the analysis or development of representative government.

We have taken what we had, and been contented with it, and have not been given to considering the problems and difficulties that might arise from a situation of this kind.

Not understanding it, a great many people, without any consideration of it, were given to forming impressions based not upon law, not upon the Constitution, not upon precedent, but upon their impression of what, under the circumstances, they would do, giving expression to that impression without any consideration of the real facts in the case.

It was, therefore, inevitable that there should be a great deal of misunderstanding; that there should be conflict of opinion, and it becomes your duty, gentlemen, to see to it, in the decision of this case, that every step that you take is not only justified by precedent, but that it is justified in reason and demanded by the public welfare.

I shall, therefore, take pains this morning, at some length, to refer to the history of the treatment of cases of this character, with a view to seeing whether or not we are upon the right road, and if we are upon the right road we can then go upon our journey and consider the various questions involved. If the proceeding were not justifiable it would be your duty to dismiss it, and I should be the first to ask that you do so. I deny that I or my associates are here merely in the light of paid counsel for the sake of conducting an issue or a prosecution. We are here to aid the Committee in getting the truth, with the obligation resting upon us heavily as requested to act as your counsel to give you no advice which is inconsistent with the interest of the State, the rights of the people, the preservation of our government and of its institutions.

I dread to take up with you and follow the precedents upon this subject. It would be more interesting for me to speak to you generally about it, but it is a matter of such vital importance, it is so essential that you should form a just judgment upon it; it will carry weight not only in the judgment of this case, but it will carry weight in the history of the State; it will carry weight in other States; it will be the basis of action not only in this judgment but in other judgments, that it is of the first importance that your actions should be along right lines. I, therefore, have no alternative except to speak to you with the utmost precision and accuracy of which I am capable. I am not going to be as exhaustive upon the subject as I might be, but I will refer you to the sources of information if you desire to pursue the study further.

Taking up this question of the right of the Assembly to challenge the right of these five men to their seats in the Assembly, I make bold to say, notwithstanding the care with which I invite you to give it attention, that the processes and procedure adopted here are sustained by overwhelming authority.

The Assemblymen are State officers and are so defined in the Constitution and in the Public Officers Law. They are officers

of the State. You are officers of the State, not of your districts. To my surprise, when this case first opened, I found there was a considerable confusion of thought upon this subject, and the idea seemed to prevail that these five Assemblymen were the officers of their several districts. Prior to 1848, Assemblymen were not chosen by districts, they were chosen by counties, and it would be entirely proper, if the State saw fit to do so, that they be chosen as Senators were chosen prior to 1848, where a block of Senators were awarded to certain districts covering many counties. You started with the choice of Assemblymen from counties, and there would be seven or eight or ten Assemblymen elected by the county at large.

In 1848, it was felt that it would bring Assemblymen closer home to their constituencies to give them individual districts, and the change was made.

Burke said in his address to the electors at Bristol:

"Parliament is not a congress of ambassadors from different and hostile interests, which interest each must maintain as an agent and advocate against other agents and advocates; but Parliament is a deliberate assembly of one nation with one interest, that of the whole, where not local purposes, not local prejudice ought to guide, but the general good, resulting from general reason of the whole."

Your oath is not taken to serve your districts, but to serve the State, being chosen as an officer of the State and sworn to serve and protect it, as well as to serve and protect the nation of which the State is an integral part, and it is a fundamental and basic proposition that whoever stands at the threshold of this chamber seeking admission for the purpose of destroying it and overthrowing it must be barred at the door.

When an Assemblyman appears at this bar, or at the office of the Secretary of State, he seeks to become an officer of the whole State. He does not appear as a representative of his district. His representation of his district is incidental, and he might have his seat in this body if, under the Constitution as amended, he was elected at large, as Congressmen-at-large are frequently elected.

Now, it is my duty to take up and discuss with you in some detail the various cases or precedents that have arisen where the question was involved. You are not entirely unfamiliar with

them, but the argument could not be well brought home without taking it as a whole, and at the risk of some repetition of what has been laid before the Committee, I will take up a few of these


I will take up first the case of Brigham H. Roberts. Roberts was elected from Utah. He appeared at the Bar of the House of Representatives as a Representative from Utah, seeking to be sworn and to take his seat as a representative of that State. A motion was made by a member of the House, when he appeared to take his seat and I may say to you that the custom there is that if such a motion is to be made, to ask the member as to whom it is to be made to stand aside when the members of the House of Representatives are sworn in; and he stands aside until the others are sworn in and then asks that he be permitted to take the oath, when, if objection is made, a motion is made by some member that he be not permitted to take the oath or to take his seat until the report of a committee as to his eligibility shall have been made to the House, and when that report is made, if it is favorable, he is sworn in and takes his seat; and if it is unfavorable, the seat is declared vacant by the House.

The charge made against Roberts was that he was in open war against the laws and institutions of his country, whose Congress he sought to enter. It is upon these grounds that all cases of exclusion have been based; that is, Brigham H. Roberts, appearing as a representative-elect from the State of Utah, was charged with being disloyal to his country, or, "in open war against the laws and institutions of his country," because he was a polygamist and governing member of the Mormon Church, and that in this status and respect he was a violator, and an open violator, of the laws of the United States.

The question was investigated by the House of Representatives, and it was determined that he was ineligible, and a resolution was passed excluding him from his seat; that is, preventing him from taking the oath or taking his seat.

I shall have to go farther back because, fortunately, affairs usually in this country are so ordered that disloyal men men living in open opposition and antagonism to the laws of the United States do not commonly appear at the threshold of our great legislative bodies. I shall have to go farther back. I will start with the case of Benjamin Stark, a Senator-elect from

the State of Oregon, in 1862. These cases arose principally because of the disloyalty of a large section of the Union in the war of 1861-1865. He presented himself to the Senate and asked to take the oath. A motion was made that it be not administered, on the ground that he was disloyal.

The same contention was made in this case as was made in the case of the five Assemblymen, that having been chosen, elected, he must take his seat, be permitted to take his seat, whether loyal or disloyal and it could be corrected afterwards and not before. And in the discussion of this question in the Senate, which was determined adversely to Mr. Stark, several important pronouncements were made which have served as precedents from that day in all other cases that have arisen in the national Congress and so far as I know in most cases throughout the Union, nothing to my knowledge having been declared contrary by authority. Senator Howe said, "to admit a claimant charged with disloyalty to a seat in the Senate in the hope of expelling him afterwards is a voluntary abandonment of the right of self-defense which belongs to the Senate as much as to any individual." The right of self-defense. "If a man be disloyal you are not compelled to permit him to take a seat in this body and then contend with him in casting the votes of the Assembly as to whether or not he shall maintain his seat." Senator Sumner said:

"I desire, Mr. President, to make one single remark. It is said that the proposition now before the Senate is without a precedent. Now, new occasions teach new duties. New precedents are to be made when the occasion requires. Never before in the history of our government has any person appeared to take a seat in this body whose previous conduct and declarations, as presented to the attention of the Senate, gave reasonable ground to distrust his loyalty." Reasonable ground to distrust his loyalty. "That case, sir, is without a precedent. It belongs therefore to the Senate. to make a precedent in order to deal with an unprecedented case. The Senate is at this moment engaged in considering the loyalty of certain members of this body and it seems to me it would poorly do its duty if it admitted onc as a member, one who when he came forward to take the oath there was a reasonable suspicion against."

Of course the necessity of self-defense is greater at some times than it is at others. The necessity of asserting the right of self-defense by a legislative body in the trying times of the

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