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great rebellion was greater than in piping times of peace. The course adopted by the Socialist party toward the late war gives unusual importance to the present case. If it had not been for the war and the development and consequences of the war this case would never have arisen. The counsel for the defense are right in that respect. But because the occasion is different and the necessity is greater doesn't result in the conclusion that the right could not or ought not be exercised at other times. It is because the duty then becomes plain in the light of conditions which is only seen dimly when everything is moving along slowly, easily and peacefully.
Now, another case. In the case of Mr. Bright, also expelled from the United States Senate in 1862 for writing a letter to Jefferson Davis, it was agreed by the majority of the Senators that he was not guilty of treason, but he was expelled nevertheless for a disloyal act.
Senator Sumner in this case said:
"Under the Constitution, the Senate in a case like the present, is the absolute judge, free to exercise its power according to its own enlightened discretion. It may justly declare a Senator unworthy of a seat in this body on evidence defective in form, or on evidence even which does not constitute positive crime. It is obvious that the Senate may act on any evidence which shall be satisfactory to show that one of its members is unworthy of his seat without bringing it to the test of any rules of law. It is true that the good name of the individual is in question; but so also is the good name of the Senate, not forgetting also the welfare of the country; if there are generous presumptions of personal innocence, so also are there irresistible instincts of self-defense which compel us to act vigorously, not only to preserve the good name of the Senate, but also to preserve the country.'
And Senator Davis said:
"There is no law which defines any particular class of offenses that shall be sufficient to expel a Senator from his The common law does not. There is no statute law that does. There are no rules of evidence establishing technical rules of testimony that are to guide and control and govern this body in getting its lights and reaching its con
clusions when a Senator is thus on trial. The general rule and principle of law and of reason and common sense is that whatever disqualifies a member of the Senate for the proper discharge of his duties, whatever it may be, is sufficient and ought to be held sufficient, for his expulsion, and whatever evidence satisfies the mind reasonably and according to moral certainty and truth of the existence of that cause is sufficient evidence without resorting to the technical rules of testimony upon which to convict him."
And Senator MacDougall said:
"It is no question of law. We have not asked whether the Senator from Indiana is guilty or not guilty. We have to judge him by our best judgment, and by that we try him; and we may say yea or nay, as we think, whether he be a true man or not to sit in the Federal councils to conduct the affairs of the United States."
I have cited a very interesting case which I will not read to you, arising as early as 1619, in the House of Burgesses in Virginia, where two delegates appeared, when under the terms of the patent of which they were occupants, they were not bound by certain laws of the colony of Virginia. Their case was taken up and they were denied seats although elected under the laws of the colony, because not submitting to the laws of the colony, saying in the language of that day, "otherwise they were utterly to be excluded, as being spies, rather than loyal burgesses; because they had offered themselves to be assistant at the making of the laws, which both themselves and those whom they represented might choose whether they would obey or not."
No case is cited in the parliamentary history of this or any other government in conflict with these cases, unless it be a case arising in this Assembly, to which I shall later direct attention.
The discussion of the power of the legislative body to exclude members commences with offenses of a lower degree than disloyalty, and the point so far as it affects this case arises from the report of the sub-committee of the Judiciary Committee of the Assembly in 1918.
The case of Decker: Decker became a member of the National Guard on October 30, 1911, and served until October 30, 1916, as a sergeant in active service. On October 30, 1916, after hav
ing served on the Mexican border, he was transferred to the reserves, and remained on the reserve list until July 14, 1917, when he was called into active service. On July 19, 1917, he was examined by the surgeon of the United States army, and on the 24th of July, discharged on a surgeon's certificate of disability arising from impaired eyesight. In September of that year he was nominated as a member of Assembly, and was elected at the general election.
On the 9th of November, 1917, Decker was married, and on the 23d of November, 1917, he was registered for the purpose of the draft under the Selective Draft Law of the United States. This law went into effect May 18, 1917, and Decker would have been subject to its provisions except for his being a member of the National Guard of the State of New York. He remained exempt until the time of his discharge from the National Guard on July 24, 1917, for disability. Upon his discharge he became subject to the law, automatically, and it was his duty immediately to register thereunder pursuant to the law and the rules and regulations of the War Department issued thereunder.
He consulted with the captain of his company as to whether it was his duty to register, and was informed by him that he did not know, and was directed to consult members of the local board. He thereafter consulted a board in the neighborhood which was not the registration board with which he should register, and did not register for military draft until the 23d of November, 1917, when he answered the question: "Do you claim exemption from draft. Specify grounds," that he did claim such exemption on the ground that he was a State officer and married. He first stated that he did not claim the exemption, but afterwards changed and claimed it and filled out the card, clearly placing himself in the exempt class on the ground of dependency. The charge against him was that he had evaded the draft by misrepresentation, in that he was not a State officer prior to January 1, 1918.
The Committee reported that inasmuch as his action in relation to the draft was a matter of public record during the time that Decker was a candidate for office, they could not recommend his dismissal from the Assembly on the ground of misrepresentation, and added the following general statement of principle as applicable to the case:
"Your sub-committee held that in order to remove a member of the Assembly from office under the Constitution that
some question involving the election or the returns is necessary before the Assembly has jurisdiction in the premises, or further that a person so elected must be entirely disqualified under the Constitution, or by his conduct in the House must disqualify him.. These regulations are specifically set forth in the Constitution itself, and there is no evidence before us that any of them are lacking as far as the respondent in this proceeding is concerned."
It should be noted in this case that not only was no question of loyalty involved, but Decker was discharged from the National Guard in the preceding July after honorable service with the active war forces of the United States. While his conduct in relation to registration and claiming exemption on account of being an officer of the State of New York was not exemplary, there was room for doubt on the part of the Committee as to his being actuated by a dishonorable purpose. The statement of an Assemblyman-elect after his election and before his term of office begins that he is a State officer, involves an error which others might commit.
The fact too that he had been discharged for physical disability undoubtedly contributed in the minds of the Committee to their conclusion that he was not purposely evading the draft to which he could not be subject by reason of his physicial disqualification. But considering the statement of the general rule laid down by the committee, it must be said that as to facts and cases not analogous to the case considered by the Committee, that the rule laid down was obiter dictum. The Committee decided independently of the statement of this rule that it would not disqualify Decker because it would not find that he was guilty of any misrepresentation, and that was the only charge presented against him. It must be further said that the rule as stated by the Committee is ambiguous in that it says that a person so elected must (to be denied admission to the Assembly) be entirely disqualified under the Constitution." Whether this language was intended to cover disloyalty naturally does not appear in the discussion of a case like Decker's. If the language used is not broad enough to cover the case of disloyalty, the statement of the Committee was not in this particular well considered, as appears from the cases already discussed.
An attempt has been made to support the Decker case by a reference to the Smoot case in the United States Senate, but an
examination of that case shows that the committee of the Senate which reported in favor of unseating Smoot, and Senator Knox his principal champion on the floor, concurred in a contrary rule. The committee said:
"The constitution provides that each house shall be the judge of the elections, returns and qualifications of its own members. It is now well established by the decisions of the senate in a number of cases that in order to be a fit representative of a sovereign state of the union in the senate of the United States, one must be in all respects obedient to the constitution and laws of the United States and of the state from which he comes, and must be desirous of the welfare of the country and in hearty accord and sympathy with its government and its institutions."
"If he does not possess these qualifications, if his conduct has been such as to be prejudicial to the welfare of society, of the nation or its government, he is regarded as being unfit to perform the important and confidential duties of a senator, and may be deprived of his seat in the senate, although he may have done no act of which a court of juscould take cognizance."
Now the distinction between the report of the committee and the action of the Senate rests solely in the question whether the charge against Smoot could be raised upon his appearing to take his oath when if he was rejected he would be rejected by a majority vote of the Senate, or whether he must under the constitution he permitted to take his seat and if he was not permitted to keep his seat, expelled by a two-thirds vote of the Senate under the provisions of the Federal Constitution. The ground of exclusion would be the same in either case. There was no question in relation to that. The question was solely in relation to the method of its application and the time of its application.
Senator Knox, who was the champion of Smoot and led the majority, stated the rule as follows:
"First that the constitution undertakes to prescribe no moral or mental qualification, and in respect to such qualifications as it does prescribe, the senate by a majority vote, shall judge of their existence in each case, whether the question is raised before or after the senator has taken his seat.
"Second - that as to all matters affecting a man's moral