Appendix — Powell v. McCormack

ADAM CLAYTON POWELL, JR,, et al,

og ia ince, pe

| JOHN W. McCORMACK, et al,

Petitioners,

Respondents. ~

APPENDIX ed TO BRIEF FOR RESPONDENTS ~

‘THE EXCLUSIVE CONSTITUTIONAL POWER OF EACH HOUSE OF

_ CONGRESS TO JUDGE THE QUALIFICATIONS OF ITS. ‘MEMBERS:

se A feat THE INTENT OF THE FRAMERS

Bucs Baonisy,. |

1 Chase Manhattan Plaza, .

New York, N. Y. 10005 .

56 ee ara Attorney for Respondents

LrovpN.Curmzr ss = . Joun R. Huprss pe

_ Joun 'H. Picxesinc = Tuomas D.Bame . ot

-Louts F.Oxerponrek - Jay E. Gaesee — ee,

- Max O. cae, Je. SO DuANE W. Krounxe

sxe Pater B. Sopot

Wiss, Cire & Picecien . : (CRavatH, Swaine & Moorz, -

900 17th Street, N. W., | < 1 Chase Manhattan Plaza, -

- Washington; D.C. 20006 _ New York, N. ¥. 10005. |

ne OF Counsel Sees of Comal

INDEX

oe Sane PAGE

INTRODUCTION en ay eae 1

I. Tae Stare or tHe Law as or 1787 a ae i 5

A. The English Practice ----~- 2

1. The Struggle for. Jurisdiction en

2. The Disclaimer of Jurisdiction by .

: the Courts akaude 5

3. The Exercise of the Powers by the .

House of Commons 14

(a) Early Cases --.--- 15

(b) The Wilkes Case | 17

(c)- Subsequent Parliamentary

BIO anit |

4. Blackstone’s Summary of the Law \ 25

B. The Colonial Practice ___ » 98°

~C. The Early State: Constitutions and.

Practices . 39

D. Samigtey _ 44

Il. Tue ConstrrutionaL CoNVENTION OF ‘1787 48

A, The Standing Incapacities ___________ 49

B. The Power To Judge Qualifications _____ 5

’. ©. The Power To Expel --_---_-________ /56

D. Summary __--.-- sali 58

Til. Tue Ratirication Periop -----------_--_- 58

TABLE OF AUTHORITIES

aa Cases’ . i aaa:

" l PAGE

Ashby v. ‘White, 92 i Rep. 126 {Q.B.); rev'd, .

Eng. Rep. 417 knee 12-13

Barnardiston v. Soame, 6 How. St. Tr. 1063, 84 Eng. \

Rep. '769, 89 Eng. Rep. 283 (1674). ais 8ll -

Bradlaugh v. Gossett, 12-Q-B.D. 271 (1884) a Ve

Goodwin’ s Case, in Guanvittz, Reports or CzRTAIN

Cases DETERMINED AND ADJUDGED BY THE COMMONS

ux Partiament (1776) (Cited as eee me 12, 15

Huddleston’ s Case, in GLANVILLE z 15

' The Report of ‘the Lords Commelttery, 14 How. St.

_. . Trs778 (1704) -_- oie * ae

Myddleton v. Wynn, 125 Eng. Rep. $339 (Ex. Ch.

1745) ___. uns 99

‘Nevill v. Strode, [14 How. St. Tr. 747 n.; 6 How. St.

Tr. 1063, 1069, 1086, 1104 (1674)] __--___________ ~

. Onslow’s Case, 83. Eng. Rep. 561, 86 wd Rep. 294 ,

ESERIES Snao ae eon ae 11 =

Prideauaz v. Morris, 91 Eng. Rep. 430 (KB. 1701) __ 13

Steward’s Case, in GLANVILLE ___~____________-__- 15

United States v. Johnson, 383 U.S. 169 ____________ 10

Wilkes Case, 19 How. St. Tr. 1075 (K.B. 1768) ____ 20

ConsTITUTIONS AND STaTUTES :

' AxpTicLes oF CoNFEDERATION art. V, cls. 1, 5 aibiamda’ ae ue

United States Constitution: :

Article I, Section 2 : | 49-56

‘Article I, Section 3 ___- -” 49-56

Article I, Section 4 _-_-.___- ___.. 59-60

Article I, Section 5 aaa 1, 56-58, 63

Article VI, Section 3 . 65

State Constitutions:

Connecticut ConstiTuTION I iciccasbsbioseieneninbucenaais 42

Detawarke Constirution (1776) __ 41

Manyzanp Constitution (1776) 42

MassacHuseTts Constrrution (1780) _ - 3%

39

41

44

New Hampsuine Consrirution (1784) ie ade ae

| PewnsyivaN® Constirution (1776) _~-__-.

Pennsyivania Constitution (1790) ---

| English Statutes : 0

Tee eae) 11, 13

12 & 13 Wm. III, ¢. 2 i) ae 15

30 Car. II st. 2,¢.1 (1678) - sae 55

MISCELLANEOUS .

Anno.p, History or THE State or Ruove Isuaxp AND

Provipence Puantations (1859) £ 34-35

Arnstein, THE BrapLaven Case (1965) 25

Bamyy, PaMPHLETS oF THE AmERIOAN REvoLUTion,

1750-1776 (1965) 45

BLacksTonE, ComMEnTarigs __- 15, 25, 26, 45-46, 51, 54, 61

Boorstin, Tue Amentcans: Toe CoLonmaL Exresi-

ENcE (1958) -_-__-_ _ 45

Brutus No. IV, N. Y. Independent . nathil Nov: ™°

1787 89

Cam, Stubbs Seventy Years. After, 3 in Law Forvans 7

anp Law Magers rn Mezprevat Encianp (1962) -- § 3

CuasTettux, Travers my NortH AMERICA IN THE -

Yzars 1780, 1781 anv 1782 (Grieve-trans. 1963) _- 24

CLARKE, PARLIAMENTARY PRIVILEGE IN THE ‘AMERICAN

Cotontes (1943) _--____-~- _ 37-38, 61, 62

Coxe, InstrruTzs ~----~- oe 4, 9,10

CoLortan RECORDS OF Norrn Canouawa ican —" 36

aa

ae

id

a. PAGE

' A Compieat JournaL or THE VotEs, SPEECHES AND

_ Depares or THE House or Lorps anp House oF

' Commons THrovcHout THE WHoLe Rezien oF

Queen Exvizasetu, or GLoRIous Memory (D’Ewes

ed. 1693) ~~ .--- Remtnianesdhilesidinaiodian 5,15

Costin & Watson, THe Law anp WoRKING OF THE

Constitution : Documents, 1660-1914 (1952) ____17, 23

Davies, Toe Earty Sruarts (1952) __.._-____._..__ 6,7

‘Documents ReELatinG To THE CoLontaL History oF

THE State or New Jersey (1880-1902) ________ 33-34

3 Exot, DEBATES IN THE ‘SEVERAL State ConveEn-

' TIONS ON THE ADOPTION OF THE F'epERAL ConstI-

‘

CUTE CENED siicctentccticcgeslangeadaene . Sayer

9 Enouiso Historica, Documents (Jensen ed. 1955) 37

Fasranp, Recorps or THE Fepera Convention oF _

1787 (rev. ed. 1966) ‘_. 24,48-58

Tue Feperauist (Cooke ed. oe

Tue Feperauist (Rossiter ed. 1961) -___ : a

GoueH, Funpamenta, Law 1n EncuisH Constiru- |

TionaL History (1961) ~ 2

Greene, The Quest ror Power: T'He Lower Houses -

or AssEMBLY IN THE SoUTHERN Roya ‘C@ponTes

(1963) __-.__ ie : 38, 39

Hatiam, THE ConsTITUTIONAL History OF Excaxp

| (1881) a 7

An InterestInc Appenpix To Srz Wiiiiam Buack- ©

STONE’s COMMENTARIES ON .THE Laws or ENGLAND ©

CRE. a eaeielatneiapeAbenccsinns 27

_ Jacos, THE Firrzenta ‘CENTURY | ee Aaa a

James, A List of Legal Treatises Printed in the.

British Colonies and the American States Before

1801, in Harvarp Lecau Essays 159 (1934) .-___- 26

- Jensen, THE ARTICLES OF ConFEDERATION (1963)_-__ 47°

Jouirrg, THE ConsTITUTIONAL History or MeprevaL

Exoianp Se, Exe iaaalls Pear eee 3

JOURNAL OF THE ConsTI AL CONVENTION OF

Connecticut, 1818 (1873) \_____-

PAGE _

JouRNAL OF THE ConvENTION FoR Famine a Consti-

TUTION OF GOVERNMENT OF THE StaTE oF Massa-

CHUsETTS Bay (1832) = 40, 41, 49

JOURNAL OF THE House or Commons (1803) ___ 5, 16,17

JOURNALS OF THE H vse or Burgesses or Vincrnia:

-1619-1659 (1915) 1S Ps ae 29-30

JoURNALS OF THE House or. Burgesses or Vincrni:

1659-1693 (1914) _____ 30

JOURNALS OF THE House or Burcesses oF VircInia:

1727-1740 (1910) Sale 31, 37, 47

JOURNALS OF THE HovusE oF BunGEssEs or Vincrxia:

1742-1747 (1909) 7 32

JOURNALS OF THE Hovusz oF RepresENTATIVEs oF Mas-

SACHUSETTS (1926) a 35.

- Kenyon, Tue ‘Antireperatists (1966) 59

Kier, Tue Constitutionau History or Mopern Batt-

‘atn:: 1485-1951 (6th ed. 1961) _..__-____-_____ 5, 6, 7

MAITLAND, Introduction to ‘Memoranda de Parlia-

mento, 1305, in Se.ectep. Hisrorrar a 52.

(Cam ed. 1957) nial 3

Mier, Opicins oF THE Axcmnrcan Revouwnos

(1943) ...._ reece art icabead 19

2 MINpTEs oF THE escshians oon or PEennsy1-

vanta (1852) ets 2 : 4 37

Morison & Commacer, GrowTH oF THE AMERICAN

* . Repusric (5th ed. 1962) PA RIAD AIC LORE 24

Namizr, ENGLAND IN THE AGE OF THE American Rev- ;

. oLuTion (2d ed.1961) _____ ee Rae ee ee 18

New Hampsuime Smte Papers ERUEE .ebcincihitioniinees: - ae

- Partiamentary History or Enctanp (1813) __7, 12, 20-23

_Posteatz, Toat Devin Wuikes (1929) _______' 19, 23-24

Proceepincs oF THE CONVENTION oF THE DELAWARE

Beara, 1776 (1987) ds a

PROCEEDINGS OF THE CONVENTIONS OF THE Province 42

or Maryianp (1836) _______ hchnotnifenal Ae ie

Procgepines RELATIVE TO... THE [Pewwsyivanta]

ConsTITUTIONS oF 1776 anv 1790 (1825) ____ © 24, 42, 43

“ i , ¥ ‘ ’ .

. ° , * 7 ae

- , °

. ’

. 4 ~ , 4

. e ;

. .

i ’

vi

PAGE

Pusuic ReEconps OF THE Cotoxy OF Coxxzorcur

a

-

Shirwan Barnardiston v.. foame: A Restoration

Drama, 4 Mezxs. U. L. Rev. 502 (1964) _---_- daiessis 8

Spencer, ConstitutionaL Conriict 1s Provincian |

- Massscuvssrrs (1905) .-..-_...------__.--..-- 35 -

| Stusss; ConstiTUTIONAL pasnopy OF ENGLAND 1880)

a 3, 4,5

TasweLt-LanGMeap, Exousn ConstrrutiowaL’ His- a |

tory (11th ed. Plucknett 1960) ._________ “easiphossastly Tg SO |

Tuosrs, FEDERAL AND. State CoxsrruTio%g (1909)

Lig 29, 39,40 |

“Warren, Toe Makino or tHe Constitution (1928)

44, 52, 53, 54, 55, 61

Watson, sinaah RecN OF Gronox I, 1760-1815 (1960)

18; 19-20

Woaxs OF Epmunp Burke (1855) ay aE ESR e Re 46

.. Tue Worxs or James Wuson (McCloskey ed. 1967) 49

~

4 i ‘ ad ‘*

pie TI tli Ae EAA haps ~ a

of:

a,

/Tuk Exciwsive CONSTITUTIONAL POWER OF ZACH

House OF CONGRESS TO JUDGE THE QUALIFICATIONS OF

Irs MEMBERS: THE INTENT OF THE FRAMERS

a’

- INTRODUCTION

This case presents to the Court the problem of inter- ©

preting the constitutional power of each house of Congress

to judge the qualifications of its members and the related

- power to expel a member upon a two-thirds vote, both of -

_which are granted by article I, section 5 of the Constitution.

To determine the, intent of the Framers, We have under-

taken a review of the pertinent original sources and prin-

_ ¢ipal commentators, the results of which are set forth in

this Appendix, - * | |

Our research has led us to the following conclusions :

1. That at the time the Constitution was drafted,

there existed a widely accepted understanding, both in

this country and in England, that the power of a legis-

lative body to judge the qualifications of its members

encompassed the power to exclude or expel a member

on the ground that he was unfit to serve, because of

- his individual character or conduct, even though he

met the general standards for membership imposed by

‘ law; |

2. That the exercise of ‘that power by the legis-

lative body was final and was not reviewable by any

7

3. That the power of a single house of the legis-

lature to judge the qualifications of its memtbers was’ -

separate and distinct from the power of the entire

_- legislature to create by statute ‘‘Standing incapacities”’

which operate prospectively to exclude groups or

classes of people from eligibility for membership;

es ages zak Posner eR ‘ sae

Beer” That tae Constitutional Convention, witty ap-

/ parently depriving Congress of the power to create

on '” new *‘standing incapacities’’, took no action which —

. inditates an-intent to limit the House and. Senate

respectively i in their exercise of the power to judge the

_f qualifications of their members, as that power was then

: understood, but instead deliberately erage

pretation of the ‘Judge qualifications”? anal e; and

_., 5, That there is no basis for conjecturing that the

“Constitution containing the power to judge qualifi--

_ cations SO interpreted would not have been ratified.

*s °

. _The- material which has led us to these conclusions is set

” forth below, « We begin with the background against which

_the Framers wrote. We first explore the English prece-

- dents which formed the body ‘sf_prior law from which the «

«American Colonies drew in setting up their colonial, state

- and then federal governments. We then examine the treat-

ment givtn those precedents by the Framers, who were —

” anxious both to conserve the best and to avoid repeat- |

ing the worst.of the English traditions. We then discuss

the ark debates and adtions of the Constitutiona]

6 2.4 3 < a © 4 x

A ti SA a ah os Ca pice ARON Rie ete

. e

we,

SS ato ny

Oe ee

» Convention, as Muminated. by the historical background,

- and th relevant events of the, ratification campaign.

im ye Tue STATE OF THE Law As OF 1787

oY a) Enguisn Practice.

The roots of the powers to. judge qualifiestions and to

exclude or expel a member extend far. back into English _

history. They-statt when the House of Commons first be- |

gan to recognize io importance and to see the necessity

of obtaining contrdhover its own composition and internal

- proceedings. ‘The Commons in that early period found that

ished to wrest the power to judge the election of ifsxpém-

-- Berg (which, as we shall show, included the power dge

the qualifications or capacity of its inembers) fron- the

“4

-”

PE pave ste Te colons P n a

—_— : :

:

j :

2 ; 3

.,. .

wJ* ®

Court‘of Chancery. That struggle culminated in 1604, when

‘ James I acquiesced in the Commons’ -position that they,

Seb and not the Chancellor, were the proper judges of the

ae election of their members. TasweLt-LancMEaD, ENGLISH |

ConstiruTionaL. History 333. (11th ed. Plucknett 1960)

' (hereinafter Taswett-Lanemeap]. Thereafter,

»

——————

’ ‘Tt was fully recognized as their exclusive right by

the court of Exchequer Chamber in 1674, by the House

of Lords’ in 1689, and also by the courts of law in

1680 and ‘1702. Their right was further recognized

by the Act 7 & 8 William 3, c. 7, which declared that

‘the last determination of the House of Commons of

the right of election’.is to be pursued.’’ Ibid. (foot-

notes omitted), ~ |

_ A study of the history of the powers to judge qualifica-

» tions and to exclude or expel a member, therefore,’may best

proceed by a review of the struggle between Parliament

and tbe courts for jurisdiction over matters’ pertaining to

elecfions, the manner in which the House of Commons exer-

cised the power,‘ with particular’ reference to the Wilkes .

_Case,“and the summary of the law conveniently provided

by Blaekstone. ie ;

1. Fhe Struggle for Jurisdiction.

The authority of the English Parliament to judge the

elections and qualifications of its members was neither

| asserted by nor attributed to that body. at its inception in

% -v@ the reign of Edward I, which ended in 1307.* Throughout -

* The earliest period ascribed for the emergence of the communes.

as a permanent and constitutionally required branch of Parliament is

the reign of Edward I. 2 Stusss,’ CoNnsTiTuTIONAL History OF

ENGLAND § 244, at 316 (1880) [hereinafter Stusss]. There is some

‘dispute over when-the communes became a critical part of Parliament.

See Cam, Stubbs. Seventy Years After, in Law FInpErs anp Law

MAKERS IN MepiEvaL ENGLAND 188, 196-98 (1962); 3 StruBBs

’ .§ 426; JoLIFFE, THE CoNSTITUTIONAL History OF MeEpIEvAL ENc-

LAND 349-51 (4th ed..1961) ; cf. Ma1TLann, Jntroduction to Memo-

randa de Parliamento, 1305, in Setectep Historicat Essays 52

(Cam ed. 1957).

2]

SI AF na St cei GUN 4 nite

i em eet

Pa =

er

+ 7 = .

Pee LOT Y ses’. en

Pee eee, OE en

4

the fourteenth century, the knights of the shire and the

burgesses (7.e., county and borough members) were sum-

moned by writs of election, issued by and returnable to the

King. The writs prescribed the qualifications* of those

who could be elected, and the sheriff was responsible for

assuring that those returned met the sometimes amor-

phous standards set forth in the writs. In the attainment

of those standards, or in furtherance of his own or his

patrons’. interests, the sheriff often abused his influence.

3 Srusss Gs 419-20. Moreover, election to- Parliament was

viewed mbre as a burden than a privilege, both to the

elected and to the electors who had to provide subsistence

- for their representatives.

‘On any theory the conclusion is inevitable that the

right of electing was not duly valued, that the duty of

representation was in ordinary times viewed ‘as a -

burden and not asa privilege; that there was much .

difficulty in finding duly qualified members, and that |

. the only people who coveted the office were the lawyers

who saw the advantage of combining the transaction of

their clients’ business in London with the right of

_ receiving wages as knights of the shire: at the same

time. ... [T]he power of the sheriff, and of the crown

exercised through him, was almost uncontrolled in

peaceful times, and in disturbed times the whole: pro-

ceeding was at the mercy—of faction.’? 3 Srusss 440

' (footnote omitted).

Im an apparent. attempt to restrain the exercise by the

sheriffs of an undue influence on the composition of the

* The qualifications prescribed varied from king to king and par-

liament to parliament. On some occasions the writs specified ‘that

__knights‘of the shire were limited to belted knights (“gladiis cintos”),

but -in the later part of-the century that provision was omitted. 3

Strusss 430. “In 1404 Henry IV caused considerable strife by exclud-

ing lawyers from his parliament, id. at*433, but the bar has had its

revenge, for history has known that body. as the “lack-learning par-

liament” (“indoctum parliamentum”). See 4CoKE, INsTITUTES *47;

cf. Jacos, THE FIFTEENTH Century 51 (1961).

4)

lower house, an act-was passed in 1406 requiring the writ

_of election to be returned to Chancery, and a statute in 1410

granted the judges of assize authority to inquire into undue |

returns. 3 Srusss 457. But membership i in the lower house.

remained unattractive throughout. the reign of the Plan-- _

tagenets (which ended in 1485), with the consequence that

election disputes were infrequent. 3 Srupss 454-55.

As the institution of Parliament began to assume more

‘importance in the Tudor period (1485-1603), membership

_in the Commons became more attractive and, consequently,

- the results of elections were more often disputed, Kier,

Tye ConstirutionaL History or Mopern Brrrain:. 1485-

1951, at 140 (6th ed. 1961) [hereinafter Krzr]. The Com-

mons then began to assert jurisdiction over the disputes,

and in 1553, in one of its first recorded cases, decided

. that Alex. Nowell, being prebendary hag

Weetminston and thereby: having voice in the Convoca-

tion House, cannot be a member of this House; and

so agreed by the House, and the Queen’s writ to be .

ditected for another burgess in that place.’” 1 Jour-

"NAL OF THE House or Commons 27 (1803) [hereinafter

C.J.]. See also Kier 151.

But the Chancery and ‘the judges were not easily deposed ©

_ from what had become their traditional jurisdiction over

the elections and qualifications of members. In 1586, in

connection with a dispute over the election of a member

from Norfolk, the Chancellor informed the Commons that

an election dispute was ‘‘a thing in truth impertinent for |

this House to deal withal.’’ A CompLeat JOURNAL OF THE

Vores, SPEECHES AND DepaTEs or THE House or Lorps AND .

House or Commons THrRovGHOUT THE WHOLE REIGN oF

‘Queen EizaserH, ‘or Guontious Memory 393 (D’Ewes ed.

1693) [porecnatior D’Ewes Journats]. The Commons re-

* ‘A canon or member of the chapter of a ¢athedral or collegiate

church who is the recipient of a stipend or “prebend” of maintéhance,

granted out of the estate of the church. .

a

6 -

torted ‘‘that albeit they thought very reverently . . . of the

said Lord Chancellor and J udges, and know them to be com- °

petent Judges in their places ; yet in this. case they took

them not for Judges in Parliament in this House’’, id. at

398. In 1593, the Commons appointed a standing com-

mittee to. “examine and make report of all such Cases

touching the Elections and Returns of any of the Knights,

Citizens, Burgesses and Barons of this House, and also all

such Cases for priviledge as in any wise 9 may oceur”’ . Id.

at 471; Kier 151.

The final round in the struggle between the Commons

and the Chancery occurred in 1604, at the inception of the

- Stuart dynasty, when James I met the first of many rebuffs

at the hands‘of: that ‘‘body without a head’’, Davies, THE

Earty Sruarts 17 (1952) [hereinafter Davies]. Sir Fran-

cis Goodwin had been returned as the duly elected knight

of the shire for the County of Bucks. However, Goodwin

had been adjudged an outlaw some years earlier, and the

> proclamation summoning the Parliament had specifically -

commanded that no outlaws be elected. The Chancery

~>

ardered a new election, as a result of which Sir John

Fortescue, a member of the King’s Privy Council, was re-

turned. The Commons investigated the matter and ordered

~ Goodwin seated, James’ experience with the moribund

Scottish Parliament had not prepared him for dealing with -

the kind of independence (in his eyes, impertinence) which

he was to find in the more viable English body. He there-

fore peremptorily informed the Commons. that the -deter-

mination of election disputes ‘belonged to the Court of °

Chancery, and the Commons had no right to interfere. But

the Commons was adamant. The dispute continued for

some time, and finally James commanded the Commons,

‘fas an abso King’’, that they confer with a committee.

of judges and his Council over the matter. This ultimately

led to a conference with the. King at which he acknowledged —

that thé Commons were the proper judge of elections, but

requested as a personal favor that neither Goodwin nor

Fortescue be allowed to sit and that a new election be held.*

> «The apparent compromise was in effect a victory for

the Commons, whose right to decide upon the legality

of returns, and the conduct of returning officers in mak- §

ing. them, was thenceforth regularly claimed and exer-

cised.’’.. TaswELL-LanGMEaD 333.

- Moreover, this case together with other grievances

prompted the Commons in; 1604 to address the famous

Apology or Satisfaction concerning their Privileges to the

‘King, in which they reasserted their exclusive jurisdiction

_ over election disputes: :

‘*6thly, and lastly, We avouch that the House of Com-

mons is the sole proper judge of Returns of all such

Writs, and of the Election of all such Members as be-

long unto it, without which the freedom of election were

not entire. And that the chancery, though a standing

court under your maj. be to send out those writs, and

receive the returns, and to preserve them, yet the same

is done only for the use of the parl. . Over which neither

the chancery, nor any other court, ever‘had, or ought to

have any manner of jurisdiction.’’ 1 PartiaMENnTARY

History or Eneuanp 1033 (1813) [hereinafter Pag,

Hist. Ena.]. See also id. at 1037. —~ \

~ 9, The Disclaimer of Jurisdiction by the Courts. —

Goodwin’s Case was the last attempt by a monarch or his

chancellor to interfere with the. power or, as it came to be

* The discussion of Goodwin’s Case is based upon GLANVILLE,

_ Reports oF CERTAIN Cases. DETERMINED -AND ADJUDGED BY THE

; ‘Commons IN PARLIAMENT 1xxii-l1xxxiii (1776) [hereinafter GLAN-

bog ; 1 Hattam, THE CONSTITUTIONAL History oF ENGLAND

2 (1881) ; and TASWELL-LANGMEAD 332-33. See also Davies

ef 5; Kae 175. Glanville was Chairman of the Commons’ Committee of

Elections in 1623 and 1624, GLANVILLE 1, and the cases which he

reported were those “concerning elections”, a phrase which he inter-

preted, as indicated by his inclusion of Goodwin’ s Case and similar .

cases discussed below, as including questions as to the qualsfications of

those elected.

‘ 8

denominated, the privilege of the House of Commons to.

' Judge the elections, returns and qualifications of its mem- .

bers. In the 17th century, the common law courts likewise

acquiesced in the exclusive jurisdiction of the Commons

. over elections aud, in the absence of a clear statutory man-

. date, disclaimed the power to interfere.

An early indication of the courts’ attitude is the deci-

sion in Nevill v. Strode. An action was brought against a

sheriff for a false return in 1655; and £1500 damages were

awarded to the plaintiff by the jury. However, before judg--

ment, the Court of King’s Bench adjourned the case into

the House of Commons, as the only proper judges in cases

concerning elections, because of the difficulty of determining

_ whether such an action would lie.*

_ Barnardiston v. Soame, 6 How. -St.. Tr. 1063 (1674),

‘merits more extensive discussion.** Sir Samuel Barnar-

diston claimed that Sir William Soame, while .sheriff of 2

Suffolk, “falsely and maliciously” made a double return on

the writ for. the election for a knight of the shire from

Suffolk. The return stated that both Barnardiston and his

. opponent, Huntingtowre, were elected, whereas in fact

Barnardiston had carried the election by 78 votes. As a

result, Huntingtowre sat in the Commons until it was de-

termined that Barnardiston and not Huntingtowre’ had been

elected. Following a trial in the Court of King’s Bench,

Barnardiston recovered £1,000 .in damages. sia writ of —

*No report of Nevill’s Case has been found, but it was pn -

‘referred to by the parties and the courts in subsequent election cases.

A synopsis of it is found at 14 How. St. Tr. 717n. See also, the dis- -

cussions of the case in the report in Barnardiston v. Soame, 6 How.

/St. Tr. 1063, 1069, 1086, 1104 (1674), from which it appears that

N evill’s Case was never resolved.

' **The case is also reported in 84 Eng. Rep. 769 and 89 Eng. Rep.

283, but the fullest account appears in STATE Triats. See also

Sharwood, Barnardiston v. Soame: A Restoration Drama, 4 MELs.

U. L. Rev. 502 —

- :

£

Pe per pee

the concessions which they make.

9

error, the Court of the Exchequer Chamber* reversed,

Lord Chief Justice North writing for a majority of six.

The “Krguments” of Judges Ellis and Atkins, the two

judges who dissented and voted to affirm in the Exchequer

Chamber, were delivered first. They are re for

. Thus Judge Ellis, in response to the objection t that the

matter in issue is one to be determined in Parliament, con-

ceded that “as to the right of election [,] that is determin-

able there”. He ‘distinguished the case before him on the

grounds that “1. Here is no action brought against a mem-

ber. 2. No action brought for any thing done in parliament. ”

._ Id. at 1073.

Similarly, Judge Atkins first canvassed the matters con- |

cerning Parliament as to which “the judges of Westminster- -

hall have in all times, and must meddle, arid take cognizance

of them”. Jd. at 1082. ‘Under this head he listed such mat-

ters as (a) what constitutes a Parliament, for the purpose

of determining the validity of alleged Acts of Parliament

(“For though the king and parliament make acts, yet the

- gourts in Westminster-hall put those acts in execution, and

therefore must first satisfy themselves”) ; (b) when a Parlia-

ment begins, for the purpose of determining damages in a

suit for expenses in -ttending Parliament; and (c) whether

an individual is entitled to ~parliamentary privilege from

arrest. Id. at 1082-83. Next he canvassed those matters

which the courts have discretion to determine.or to refer to

-Parliament for determination. Finally, he listed those mat-

ters “wherein the courts of Westminster-hall must not in-

termeddle, but the jurisdiction belongs to the parliament

only.” Id. at 1083. Judge Atkin’s remarks as to those mat-

ters are particularly pertinent since they reflect his under-

standing that the predecessor of ‘the Speech or Debate

*For the jurisdiction of this intermediate court cs appeal, see °

a — Institutes *103-116, *119.

~ .

had POP DO LOT OPE etahin 4; Sean ede ee BILE APES DEINE LEO te tip a te we — oe

10

Clause* barred judicial interference with parliamentary dis-

' position of questions pertaining to members. He pointed

out that —

“By the statete of 4 H8.. 8, though all i in that act

that concerns one Richard Strode i is a private act, yet

there is one clause which is a general act, and is declar-

. atory of the ancient law and custom of parliament, viz.

It is enacted, “That ali suits, accusements, condemna- |

tions, executions, fines, amerciaments, punishments,

corrections, charges, and impositions, at any time from

thenceforth, to be put or had upon any member, for.

any bill, speaking, reasoning, or declaring of any matter

_ concerning the parliament, to be communed or treated

of, be a void and ¢ none effect.’” Id. at 1083.

' «This is ; the reason”, ‘he said, relying upon Coke (2 Coxe

re *15):

. that judges ought not to give any opinion of a

cles of parliament, because it is not to be decided

by the common laws used in other courts, but ‘secundum

legem, et consuetudinem parliamenti.’’’ Id. at 1084.

Among the matters listed by Judge Atkins as those i in which

the courts “must not inteérmeddle” is the determination by

the House of Commons ¢@f questions concerning election of

their members. After a brief discussion of the history of

that jurisdiction, Judge Atkins said,

“But we know that the House.6f Commons is now

possessed of the jurisdiction of determipmg all ques-

‘tions concerning the election of their own members;

so far at-least, as is in order to their being admitted

or excluded from sitting there.” Id. at 1083-86.

Lord Chief Justice North, writing, for a majority of

six, noted that ‘‘it is admitted, that the Parliament is the

only proper judicature to determine the right of election’’,

*Cf. United States v. Johnson, 383 U.S. 169, 182 n.13.

OLLI TOS PERN Ie GA OT ye Pee ae oft

11

id. at 1098. ‘He then adduced a number of reasons why this

action would not lie, each of which is bottomed upon a desire

to avoid a conflict between the courts and Parliament:

“I can see no other way to avoid consequences

‘derogatory to the honour of the parliament, but to

reject the action; and-all other that shall relate either

to the proceedings or privilege of parliament, as our

predecessors have done.” Id. at 1110. r

After the Revolution of 1688, Deriedittaten brought his

writ of error into the House of Lords, where on June 25,

1689, the decision of the Exchequer Chamber | was affirmed.

“Id. at 12

To be sure, these cases did not. specifically present the

issue whether the Commons had exclusive jurisdiction over

disputes concerning the qualifications of their members. No

judicial decision prior to-the American Revolution has been

found where that question was specifically in issue. + But in

each of the opinions in ‘Barnardiston, it is assumed — a.

fortiori — that the Commons had exclusive jurisdiction over. ©

_ “all questions concerning the election of their own mem-

bers (in the language of Atkins, J., 6 How. St. Tr. 1086) in-

*The report of the case in State Trials indicates that Lord Chief

Justice Vaughan and Lord Chief Baron Turner, both deceased, agreed

with the majority decision, 6 How. St. Tr. 1117. Presumably their

opinions were obtained prior to their demise. ~ 7

**To the same effect was the decision in Onslow’ s Case, 83

Rep. 561, 86 Eng. Rep. 294 (K.B. 1681). Thereafter it was provi ed

a statute, 7&8 Wm. TL c. 7 (1695), that an action might be brought

by the person grieved against a sheriff or other officer making a false

return and double damages recovered. The statute was held to vest

jurisdiction in the courts notwithstanding that the Commons were

the only proper judges of the elections of their s “because it

is certain that an Act of Parliament may give th at West-

minster a jurisdiction in cases of this nature, though they had none

at common law, because the House of Commoris is ‘party to every -

d therefore ‘is bound by it.” M oe v. Wynn, 125 pon

Rep. J308, 1344 (Ex. Ch. 1745).

+But see Bradlaugh v. Gossett, 12 Q.B.D. 271 (1884), discussed

p. 25 infra.

- ° e

oom >? _— vrrpen ee — - LYELL TRO ORAS hee 6 rh § AS eG ag ona aN

20> / . - : . nk ie ‘

' ‘ s >

so far’as those questions affected the right of a member-

elect to sit. As Goodwin’s Case illustrates, the term ‘‘judge

the elections’? was often used in the seventeenth and

_ eighteenth centuries in‘a manner which necessarily included

the power to judge the qualifications of the elected.* \And

the language used by Ellis (‘‘the er f election [,] that is

me aor [in the Commons]’’, 6 HOw. St. Tr. 1073) and

(‘‘[PJarliament is the only proper judicature to

; pis eet the right of election,’’ id. at 1098) is broad

enough to support an inference that they assumed the ~

Commons to be the sole judge of the qualifications of its

members.

Parthesmora, 0s will be shown, the Commons acted in a

manner which implies that they at least believed themselves

- to be the exclusive arbiters of disputes over qualifications

and that they did not believe the scope of their inquiry

to be limited to the qualifications prescribed by statute.

‘Moreover, the House of Lords, the pinnacle of the judi-

ciary,** agreed.

Before turning to those precedents, it should be observed

that the. English courts in the seventeenth and eighteenth

centuries drew a clear distinction between jurisdiction over .

disputes as to the election of members of parliament (which

they steadfastly maintained that they lacked) and jurisdic-

tion to determine the qualifications .of an elector to vote

- (which they readily assumed). That distinction was first

_recognized in Holt’s dissent in Ashby v. White, 92 Eng.

Rep. 126 (Q.B.), rev’d, 1 Eng. Rep. 417 (H.L. 1703). Matthias

Ashby brought an action against the Constables of the Bor-

*See, e.g., the debate in the Wilkes Case at 16 Par. Hist. Ena,

594 (1813), quoted pp. 21-22 infra. In Goodwin’s Case, pp. 6-7 supra,

the language used was “judge of the Returns ... and «.. Election” al-

_ though the question was whether an outlaw was as qualified to sit in the

House. Apology of 1604, quoted p. 7 supra. :

**The legislative and judicial functions of the Lords | were not

clearly distinguished until the end of the eighteenth century. GoucH,

‘FUNDAMENTAL LAw IN ENGLISH CoNnsTITUTIONAL History 201

>

sa PP EP ree Teg VOLEL LOG ILOL AE MR OE LG LET OE I ire nena ee — -*

. ’ ; : _* . " GOO DOLLOP LE ED|EL DEEL ILEL LIE GIT AOL AGE. Sti je of

~~ Ae : é Y wr

- borough aforesaid, and not receiving aJms there or any. .

- - where -else then or before”. Follewing a jury trial,-the —,

_ verdict was rendered for plaintiff. Thereafter, it was moved _

judges could not pass upon the matter because it touched

' diction over the right to vote and jurisdiction over the

13

ough of Aylesbury for refusing to count his vote for the

two burgesses for that borough who were elected to Parlia- .

ment, although he was “a burgess and inhabitant of ‘the

in arrest of judgment that the action was not maintainable

and three of the four justices of the King’s Bench before

whom it was argued agreed. Chief Justice Holt, however,

dissented and it was upon his opinion that the House of

Lords reversed. In disposing of the objection that the

.

upon Parliament, Holt pointed out that the matter could

never come in question in Parliament since the persons for

whom plaintiff had voted had been elected and seated.. Holt

very carefully pointed out the distinction between juris-

candidate’s right of election:* |

“, , . Was ever such a petition heard of in Parlia-

ment, as that a man was hindred of giving his vote, and

praying them to give him remedy? The Parliament

undoubtedly would say, take your remedy at law. It is

not like the case of determining the right of election .

between the candidates. ~

“..If the House of Commons a determine this

matter, it is not that they have an original right, but

as incident to elections? But we do not deny. them their

right of examining elections... .’’ 92 Eng. Rep. at 138.

The reasoning of the Lords is not set forth in the report.

of the appeal, but it may be inferred from their report of a .

*In Prideaux v. Morris, 91 Eng. Rep. 44) (K.B. 1701), Chief

Justice Holt had held that, since the court$ of law lacked juris-

diction to determine the right of a candidate to sit in Parliament, even

under the statute 7 & 8 Wm. III, c. 7 (1695) (see p. 11 note ***

supra), a candidate’s collateral attack upon the return in an action

against a sheriff for damages for a false return was beyond the juris-

diction of the courts, where there had been no prior determination in

ayo Contra, Myddleton v. Wynn, 125 Eng. Rep. 1339 (Ex.

Ch. 1745). '

- be unworthy- ever. to serve as‘a Member of this House’’

_ becausé he had sought to induce a witness not to refer to

certain matters pertaining to Sir Edmund during the wit-

-ness’s testimony before the House, 1 G J.917. And‘in 1641;

at the inception of the ‘‘Long Parliamient”’, the House re-

solved that ‘‘Mr. Wm. Taylor shall be expelled this House;

be made incapable of ever being a Member of this House;

and shall be forthwith committed a-Prisoner, to the Tower’’

for having ‘‘reflected’’ outside the House upon the proceed-

* ings against Strafford, at a time when even discussion of

the business of the House outside ‘its halls was considered

a high bréach of parliamentary privilege, 2 C.J. 158-59. In

* —s the same year, the House expelled a Mr. H. Benson and de-

clared him ‘‘unfit and uncapable ever to sit in Parliament,

or to bea Member of this House hereafter’’ because he had |

: abused the privileges of Parliament by selling ‘‘Protec-

' tions’’ to various persons, thereby cloaking | them with par- -

liamentary immunity, 2 C.J. 301.

In 1642, as the conflict between Parliament and the King.

* . became: more heated and the line dividing Parliament’s men

and King’s men became more. clearly drawn, the House ex- °

’ pelled a number of its members (including Edward Hyde,

later Earl of Clarendon) and held each of them “disabled

| to sit any longer a Member of this House, during this

‘Sie Parliament”, for reasons which do not appear in the Jour-

nals, 2 C:J. 703, 704, 708, 711,715, 716. In 1660, after the

restoration of Charles II, the House. expelled one*Robert

Wallop and held him ‘‘incapable of bearing any Office, or

Place of publick Trust, in this Kingdom’’, apparently for -

having participated in the execution of Charles I, 8 C.J. 61.°

‘Those cases demonstrate that Parliament exercised the

_ power, not only to expel, but also to exclude particular

twembers for the duration of that Parliament, even in:ad-

_ vance of their seeking admission, for reasons beyond the |

“standing incapacities”, the reason here being that they ~

had been expelled. If Parliament had lacked the power to

_ exclude for reasons other than the “standing incapacities”, -

| ej power. to Skpel a member for abeiandei would have

been a Meaningless one, since the expelled member could

avoid its effect simply by being otaraaze to fill the vacancy ~.

created by his expulsion. pages ONE eer ces |

So far as our research reveals, the first instance of an

expelled‘ member being re-elected to the Parliament from

which he was expelled occurred in the case of Robert Wal-

. pole. In January 1712, the Commons committed Walpole

(who subsequently became the first /*prime minister’’ of

England) to the Tower and expelled him from the House -

for receiving, while Secretary at’ War, kickbacks: from

‘‘Two Contracts for Forage of ‘her Majesty’ - Troops”? 17

C.J. 28-30. Two months later, while still incarcerated in the ~.

‘ Tower, Walpole was re-elected by the constituents of the . §/ é

- Borough of Kings Lynn. ie House resolved that he be

excluded:

That Robert Wal Esquire, having or

res session of ea itted a Prisoner to

the Tower of: London, and éxpelled this House, for an

high Breach of Trust in the Execution of his Office, and |

notorious Corruption, when Secretary at War, was,

- and is, incapable of being elected a Member: to serve

in this present Parliament .... ’’ 17-C.J. 128.

The House then resolved that ra co-aleutions of Walpole

was a ‘‘void Ekction’’ and ordered a new election held,

ibid., at which he was not re-elected. 1 Costrx & Watson,

Tue Law anp Workine or THE ConstITUTION : DocuMENTs,

1660-1914, at 208 (1952) [hereinafter Costin & Watson].

_ (b) The’ Wilkes Case.

és .

” By far the most notorious expulsion case in the House

of Commons prior to the American Revolution was| that

of John Wilkes. Its notoriety stemmed from an unusual

coalescence of times, personalities and issues. The times

were the late 1760’s. when the metropolis of London

was experiencing labor pains in~spawning both the- in-

"=

dnstitel- revolution and the radical movement. which nlti- +.

'. mately” produced the parliamentary reform bill of 1832; -

when-.the price of bread’ in London hag risen to 2d. a

pound; and®when the Scots were hated “and the favorite

| courtier of young .George III was Lord Bute, a Scottish

peer. Thus, “the London crowds. who in 1768 gaily smashed

their opponents’ windows and assaulted their property to .

shouts of ‘Wilkes and Liberty Y may have been ag-filled ~~

_with anger at the-high price of bread and hatred of tHe Scots (

as with enthusiasm for the cause of John Wilkes.” Rupi,

Wizes anp.Liszrty 14 (1962) {hereinafter Rupé]. a

generally id. at 1-16. Those were also og times when pe

_American Colonies ‘were resisting the® mother itt oe

attempts to require the colonials to pay part of the cost of

the late war against the French. The Stamp Act had been”.

passed in 1765 and repealed in 1766; the Townsend Acts -

’. were passed in 1767, and thé edlonies were vehemently re-

sisting their enforcement. Watson, Tue Reign or GrorcE

I, 1760- 1815, at 106, 116, 127 ne vo acer

Watson J. rt

‘Tt was in those times that “there burst on London that

remarkable phenomenon, John Wilkes.’ Rubé 16. The well- ae

___ educated second son of a prosperous businessman, he had aa

~~ the innate ability to convert a personal grievance into a

transcendent constitutional issue; the wit to make mem-

bers of the court party appear as puffoons, although in most ~

instances they needed little help in that regard; the oratory

to inflame the London mob; and the courage — or temerity one

— to make unrestrained attacks on the government and the ink

Crown. He was, however, completely jacking: in morals

even when judged by the loose standards of his age,a-man-——__——_

whom Benjamin Franklin dese as “an outlaw and exile

_ of bad ‘personal character, not worth a farthing.” Id. at.

41 n.2.' On the other hand, the court party, the insipid and

_. obsequious products of bribery, favor and Newcastle’s elec-

tioneering (see generally Nimime, ENGLaNp In THE AGE oF

‘THe Amezioan Revouution (2d ed. 1961)) were completely

t

aes in experience or ability to cope with the e problems :

_ epitomized by the rise of Wilkes. ,

The issues on which Wilkes rose to fannie were. tie: the

' freedom of the subject to criticize the government and the

legality of general warrants. Those same issues were com- _

manding the atténtion of the American colonists-during’the

same period, and that fact, together: with the fact that

Wilkés was in opposition to the king. and the court party,

resulted i in the ‘colonial leadérs: rallying to the support, of

Wilkes, partly in the hope that che. would reciprocate.*

Posteate, THaT Devi Wires 173-78 (1929) [hereinafter

PosrcaTE].

_» In 1763, an :siamilas had. been lodged against Wilkes

charging him with seditious libel in connection with No. 45

of the North Briton, his anonymous opposition paper,.in -

which he had described a statement in the King’s speech to -

Parliament as a falsehood. ‘The government proceeded

- under a general warrant (which was subsequently held:

illegal) to obtain evidence against Wilkes. After several

preliminary hearings,. but prior to his trial, Wilkes fled'to -

Paris. Before his departure he had generated great ‘support.

____—among the Tadical elements of the metropolis. He had also

developed considerable backing from a more “respectable”

element, the independent and opposition members of Parlia-

ment (many of whom defected from when the govern- .

ment brought to light an obscene essa authored by him).

_ He had also proven the cite eaders to ™ —

' bunglers. Rupé 22-36. | -

__- In 1768, ‘Wilkes-returned from his eittaiend exile,

~~ after scurrying around Europe just ahead of his continental

creditors. Following an unsuccessful candidacy in the.

parliamentary elections in the City of London, he was

elected as Member. of Parliament for Middlesex.* He was

*By 1771, however, even the more radical American leaders be-

came disillusioned with Wilkes and began increasingly to realize ~

that they must stand alone against “British tyranny”. MILLER, Ort-

GINS OF THE AMERICAN REvoLutTion 325 (1943).

20

po convicted | in the court of King’s Bench on the lehnit

charge of libel and’sentenced to imprisonment. ‘Watson

129-31; Procegdings in the Case of John. Wilkes, 19 How.

- §t. Tr. 1075, 1124 (KB. 1768). |

While in prison and before taking the as -

oath, Wilkes petitioned the House of Commons, asserting

_ that he was a member of the House and requesting that it

‘grant him speédy redress of his grievances. 16 Panu. Hist.

_ Ee. 533-35. (1813). Wilkes alleged, among other things, °

‘that Lord Mansfield had altered eertain records in his case.

' and that some of the testimony used against him in the libel

action had been obtained by bribery. Id, at 533-35. ecole

During the course of the debate ate on Wilkes’ petition,

Wilkes admitted havi published derogatory comments |

about a letter*written by Lord Weymouth to the justices.

- ‘The Commons resolved that the comments constituted “an .

. insolent, scandalous and seditious libel . . at ’ Id. at 534.

On February 3, 1769, the House resolved:

‘¢ —TThat t John Wilkes, esq., a member of this Hoes?’ |

. who hath at thé bar of this House confessed himself to

be the author and publisher of what.this House has

resolved to be an insolent, scandalous, and seditious

- libel, and who has been convicted in the Court of King’s

Bench, of having printed and published a seditious

libel, and three’ obscene arid impious libels, and by the

: judgment of the said Court, has been sentenced to

undergo 22 months imprisonment, and is now in execu- .

_tion under the said judgment, be expelled this House. $4

Id. at 545 (enphasis added).

‘A new lection was then ordered by the Commons, med on

' February 17, 1769, Wilkes was unanimously returned to the

House by the electors of Middlesex. Id. at 577-78. The —

° ———— then resolved,

‘,.. That John Wilkes, esq., having been in this ses-

| ae of parliament, expelled this House, was, and is,

21

pable of being elected a member to serve im this

resent parliament; . 2? 16 Pasu. Hist. Ena. 580. ,

~ The election was declared void and a new election ordered,

_ bad. ne : , ite +

On March 17, 1769, the -same scene was Be ty ,

electors of Middlesex faving returned ‘Wilkes unopposed. _

The election"was again declared void and a new election”

_ ordered: Id, at 580-81.

On April 14, 1769, the Middlesex electors, to the further

embarrassment of the’ Commons, again returned Wilkes. |

However, Henry Lawes Luttrell had run against Wilkes

and, although his 296 votes were a poor second to Wilkes’

_ 1,148, a motion was made that Luttrell ought to have been

returned to parliament by the County of Middlesex. On

May 8, 1769, after the. Commons had considered the peti-

‘tions of Luttrell and of freeholders from Middlesex with

respect to the election, the motion was resolved in the affir-

mative. Id. at 583-90. In‘ the course of the debate on that

motion, it waspointed out that the Commons possessed

exclusive jurisdiction in cases of election: —

_ “That the House of Commons is the sole inant of -

= ‘Judicature i in all cases of election. That authority .

_ is derived from the first principles of our government;

viz. the necessary independence of the three branches

of the legislature [i.e., King, Lords and Commons]. Did

any other body of men possess this power, members

might be obtruded upon the House, and their resolu-

tions might be influenced under colour of determining

elections. They have therefore an exclusive jurisdic. -

tion, and must be in all these cases the dernier resort.

of justice. That the House in the present case is the

competent judge of disability, and that their decision

on it is final; that if in this or any other instance, its,

decisions were found to-be attended with prejudice,

‘ the united branchés of the legislature in their supreme,

and collective ppacity, might interpose, and by pass-

5 tee . ‘ 1 Ee

7 *

‘epieatam withthe: lower asi aie from dain in

‘the Commons over the Lords’ degjgion:

» “Tt was admitted, that Be Howe of Otchinoas exer-

cise a jurisdiction, in determining ht of election

.of their’ own members; and. though the time may be

assigned; when that jurisdiction was exercised in an-__

other place, yet there has been a usage long enough to

hinder that point from being drawn in question, espe-

cially after the sanction given to it; by. the act’ made es

in the seventh year of king William’s reign.

“But though it be true, that the merit of the ‘election

of a member, be a proper subject for the House of

Commons to judge of, because they only can give the

proper and most effectual Temedy; by excluding’ the °

- usurper, and giving possession of the plate to him who

has the right; yet there is a great difference between

the right of the electors, and the right of the elected;

the one is a temporary right to a place in parliament,

pro. hac vice, the othér is a freehold, or a franchise:

. 4 man has right to his freehold by the common law, .

“ee and the law having annexed his right of. voting to his

freehold, it is of the nature of. his freehold, and must vs

‘depend upon it. The same law that gives him his right,

must defend it for him, and any other power that will ©

pretend to take away his right of voting, may as well -

pretend to take away the freehold, upon which it de-

pends,” The Report of the Lords Committees, 14 How.

St. Tr. 778, 792 (1704). ,

3. The Exercise of the Powers oy ‘te House “4

Commons. x Si

In the exercise of its’ exclusive Sierhuiiottin over Maou

concerning the qualifications of its menibers, the House of

_.Commons often\inquired into matters beyond those estab-

» lished by statute\or lex parliamenti as prerequisites: for

membership. Almost invariably these concerned the char-

acter or conduct of the individual member: We have already

wb

- seen’ an instance of this in Goodwin’ 8 Case. Farther ex-

amples merit discussion. eS

(a) Early Cases.

: In 1623 and 1624* the ‘Ocanhins passed upon two

"disputes ‘concerning elections’* which dealt with the quali-

fications of the elected: In Steward’s Case, the commit-

tee on elections decided that: ‘‘an alien born, only made

denizen by letters patent, but .not naturalized by act of —

parliament, is not, by law, eligible to serve as a burgess

amongst the commons in parliament,”” Guanviie 120,

122. The House. agreed and ordered a new election al- ~:

though it waited until the day before the .session was

to, end before doing’ so, thereby allowing Steward to

serve de facto, id. at. 123.°* In Huddleston’s Case, the

House again had: presented to it the question whether

an outlaw could sit. The committee considered the case

at some length, searching the ‘precedents, — but reported

the case to the House without recommending a decision.

The House thereupon resolved that Huddleston ‘‘was a per-

_ son eligible and well returned’* and allowed him to take his

seat. GLANVILLE, 124, 127.

se several occasions, the Commons coupled a on

of expulsion with the determination. that the member was,

‘ because of the expulsion, incapable of being re-elected,

thereby judging his qualifications in advance. The first re-

corded example occurred in 1586, D’Ewxs Jovgnats 352. In |

1628, the House committed Sir Edmund Sawyer to the. .

Tower, expeHed him from the House and coeiaret “him to

*Glanville ascribes no particular dates to the cases + comakdntet

by the Committee on Elections during his tenure as Chairman. But

in the copy of his work which we have used (from the Library of

Congress) there is a notation in ink, in a hand that appears to be

from the eighteenth century, of a date for’Each case. March 10, 1623

is ascribed for Steward’s Case and May 28, 1624 for -Huddleston’s

Case. GLANVILLE 120,124. © Hm

.**Subsequently, by statute, 12.&.13-Wim. III, « é 2 (1700), it was —

enacted that aliens, even those naturalized, were ineligible to sit in the

_ Commons. 1. BLACKSTONE, CoMMENTARIES *163.

“ing- a law ais sjeek piaiies for Bis fature; but

that nothing less could restrict their eames uae ae

; Pant. Hisr. Ene. 594. 7s

_ Although Wilkes had now effectively | been excluded

from the Commohe and Luttrell seated instead, the debate

on the propriety of. the Commons’ action did not cease. On

_ January 25, 1770, a motion was made that the Commons, ~

“in the exercise of its Judicature in- Mé&tters of Election, is

bound to judge according to the ‘Law of the Land and the

‘known and established .Law and ‘Custom of Parliament,

which is part thereof,” id. at 786: The motion: was passed

only after it had been amended by adding that the expulsion

and incapacity of Wtlkes was in accor with the law of the

land. Id. at 791-98. ;

ee On J anuary 31, 1770, a ional motion was proposed, but °

- “rejected; to the effect that only by law of Parliament, and

~ not by resolution of the House of Commons, could a per-

son. be-incapacitated from sitting in the Commons. Black-

stone’s speech during the course of the debate on that motion

is particularly pertinent:

. “Mr. Blackstone:

“Sir: I think it incumbent 1 upon me to declare, that

- in my opinion, this House is competent in the case of

elections, and that there is no appeal from its. com-

petence to the law of the land. There are cases in which

_ the other House is competent : if the House of Lords

., .in these laws should determine contrary to the law of,

' the-land, what is the remedy? and what is the remedy

if the privy council, or the court of delegates should

make such a determination? If such resolutions of the

’. Lords, the Council and the Delegates are final, why not

‘the resolutions of this House? As to the ——

‘whether expulsion does of itself imply incapacity, I -

have never answered it in the affirmative, neither have

I ever declared to the contrary. I did not vote in the

, a

4.

23 gee: Re

‘question last year, and I shall not, by any. vote that

‘I may now give, be included i in ant saeuliosl 16 Part. |

‘Hist. Ene. 802-03.

a

wo A similar motion was made in the House of Lords on

'~ February 2, 1770, idt at 814. It‘ was acknowledged that had

the résolution passed: it would have been merely declara-. :

tory and would have had no legal effect upon the seating -

‘of Wilkes or Luttrell. Yet ‘the House of Lords refused to

interfere even that far with the jurisdiction of the Com-

mons and the resolution was véted. down, id. at 820, -In its

stead, the Lords resolved, =~

“That any Resolution: of this yy directly or in-

directly, impeaching a Judgment of the House of Com-

mons, in a. matter where their Jurisdiction is competent,

final, and conclusive, would be a violation of the Con-

stitutional Rights of the Commons, ‘tends to make a

breach between the two Hodses of yoga and

. leads to . general confusion.” Id. at 823-25:

ae Wilkes was re-elected a member of the next Parliament

and allowed to sit. On five subsequent occasions, Wilkes

and his supporters sought to have the resolutions expelling _

him and declaring him incapable of re-election for the dura-

tion of that Parliament expunged from the record. Finally,

in 1782, after the fall of Lord North’s ministry in the tur-

moil following:the defeat of Yorktown, Wilkes succeeded

in having the resolutions expunged from the record, in the

language of Wilkes’ motion, ‘‘as being subversive of the -

Rights of the whole Body of Electors of this Eingdom."

1 Costin & Watson 235.

”

By this time, Wilkes and the Middlesex elections were

no longer a cause celebre, and Wilkes had become unpopu-

-. lar with ‘the groups which had previously constituted his ”

power base. Postcate 223. Whatever interest the passage |

of this resolution aroused in England Wilkes himeelf it

rl

o

STRIATED Rte aah wy rowre sin . a ee —

Py 7

. “ a i? ‘

Ce eee, ead he

hited ‘“a faint interest”, id. at i Bat) ‘it + apparently went

- unnoticed i in America."

0) Subsequent Parliamentary Practice.

| ~s N otwithstanding- ‘the broad language of Wilkes’ notion

- to expunge from the record the resolutions expellirig him,

"Parliament continued. to exercise the‘power to judge mem-

*While we recognize’ that proving: ‘lack: of knowledge of the

existence of a fact is an impossible burden. to meet, we think it sig- _

nificant that we have been unable to uncover any evidence that the |

_- «resolution was a matter of general knowledge in America at the time.

of the 1787 Convention. There is. no reference to it im several con-

temporary se@urces whére oneymight expect to find some mention of:

it, if it were known. For example, neither the Marquis’ de Chastellux

nor his translator mentions it, though both were vn wey in. América |

in 1782; both supported Wilkes ; and both discussed Wilkeés- with.

Americans while on_ their respective. journeys. 1 CHASTELLUX;

» TRAVELS In, NorTH AMERICA IN THE YEAKS 170, ss pase 1782,

at 6, 30, 354 (Grieve trans. 1963) ; 2 id. at 654. /

Similarly, i in the Report of the Pennsylvania — of Censors ” aa

- in 1784, where both Wilkes’ and Walpole’s cases were discussed; and

where those. on one side of the issue being considered could haver

furthered their argument by citing: the passage of this resolution, -

there is no mention,of it. PRocEEDING: RELATIVE TO... THE [PENN-

SYLVANIA] CONSTITUTIONS OF 1776 AND 1790, at 89 ( 1825), discussed +:

pp. 43-44 infra. Indeed, there is no mention whatever-of the Wilkes

Case in the! reported debates in the Federai Convention of 1787, .

‘4 FarRaAND, RECORDS OF THE FEDERAL CoNVENTION © OF 1787, at

227 (rev. ed. 1966). ,

That the Wilkes resolution of 1782 may not have come to the atten-

tion of the colonists would not be surprising under the circumstances.

At the time it was passed, the American coast was still under blockade &

‘by the British (the French fleet which had assisted the Americans at

Yorktown was badly mauled by the British in April 1782) and the -

- Royal troops continued to-occupy New York and a number of other

strategic points, 1 Morison & ComMaAGER, GROWTH OF THE AMERI-

CAN Repustic 227 (Sth ed.. 1962), factors which exacerbated the

already poor communications. between the warring nations. Nor is’. .

there any reason to believe that the fact of the resolution’s passing

would have been communicated to these shores after the conclusion

of hostilities, but prior to the Constitutional Convention of 1787. The

’ two best sources of information.on such ‘matters did not become avail-

able until after the turn of the century: the Journals of the House of

/ Commons were not published until 1803, and Cobbett's Parliamentary

‘History first = tei in 1813.

20 |

: \ bers unqualified for reasons other than the ‘‘standing ‘in-

capacities”. ”, See Tasweii-Lanemeap 585-86.

In Bradlaugh: v. Gossett, 12 Q.B.D. 271 (1884), an ex-

cluded’ member sought to enlist. the aid of the courts in

obtaining his seat, by bringing an action against the Ser-

i geant-at-Arms of the House. Although. the: plaintiff, an

avowed and vocal atheist (which was then: equated with a

total lack of .mbrality and principle), had been excluded

from the Commons on four occasions for reasons touching

his religion (see Arnstein, THe BrapLaucH Case 53-62,

73, 96, 114-15, 129 (1965) ), the court held that it lacked the

power to inquire info the circumstances surrounding and the

reasons motivating ‘the exclusions and, assuming for the - —

purposes of argument that the exclusions were illegal,

nevertheless held that it was without jurisdiction over the

matter.

e .

f ¢ _ ‘ 4

4. Blackstone’ s Summary of the Law. | =

The state of the ‘law with respect to the power of the *

House of Commons was conveniently summarized by Black-.

- stone, shortly before the American Revolution. He. first

listed the “standing ineapacities” for membprship i in either

- house, enacted by statute and the law and custom of Parlia- .

-ment (“lex et consuetudo parliamenti”): “. ..no one shall

sit or Vote in either House, unless he be twenty-one years —

of age... no member shall vote or sit in either House, till

he hath in the presence of the House taken the oath of

allegiance, supremacy, and abjuration ..... no alien, even ~ §

though he be naturalized, shall be capable of being a mem-

‘ber of either house of Parliament.” 1 BracksTon£, Com-

MENT/?1Es* 162-63. Significantly, each of the premeqeaine

he lists are stated negatively. _ :

In his fourth edition, Blackstone added & proviso re-

flecting the parliamentary decision in the Wilkes Case and.

his own a of the precedents supporting that

decision :

\

\ “And there are not only these standing incapacities ;

but if any person is made a peer by the king, or elected

®

ieee ee

‘to serve in the house of commons s by the isan, yet

may the respective houses upon complaint of ‘any crime

in such person, and proof thereof, adjudge him dis- .

_ abled and incapable to sit as a member : and this by

‘the law and’ custom of parliament.” 1 Buacxkstonz,

Commentaries *163 (4th ed. 770 [and a

editions] )* (footnotes omitted).

He then torond. specifically . to the prerequisites for -

membership in the House of Commons. He again first —

listed, in negative form, those which were -‘‘standing re-

strictions or disqualifications”” by statute of by the law and

custom of Parliament. They covered age, citizenship, office,

inhabitancy, property ownership and attainder of treason or

felony. Id. at *175-76. Again he noteu that for reasons

beyond the “standing restrictions or disqualifications” a

person ‘could be disqualified :

“But, subject to these standing testxiotions. and dis-

qualifications, every subject of the realm is eligible of

common right: though there are instances, wherein

~ ‘persons in particular circumstances have forfeited that

“. common right, and have been declared ineligible for

- that parliament by a vote of the house of commons,-or

'. for ever. by an act of the legislature.”” Id. at “176 «

(emphasis in original ; footnotes. omitted).

Blackstone subjected the Wilkes Case to more ‘iadies

analysis in his pamphlet, The Case of the “ate Election for

' the County of Middlesex Considered on the Principles of.

the Constitution, and the Authorities of Law [hereinafter

Middlesex Election], which was reprinted, together with

other papers, by Robert Bell, the publisher of the first

*The first American edition of Biochzioie was printed by Robert

Bell.in Philadelphia i in 1771-72 (see James, A List of Legal Treatises

Printed .in the British Colonies and the American States Before

1801, in Harvarp Lecat Essays 159, 170 (1934) ). It was taken from

the fourth English edition (see 1 BLACKSTONE, COMMENTARIES

mags | (Hammond ed. 1890) )., and therefore reflects the changes

by*Blackstone in that edition. 1 BLACKSTONE, COMMENTARIES _

“163, +176 (Ist American ed. 1771).

f

wu

. ‘ ’

ET ade ele at ee 28 ws are pease —_

pete ate - a

’ R js

27

American edition of the Commentaries, in a compilation |

entitled An Interesting Appendix \te Sir William Black-

* stone’s Commentaries on the Laws of England (Phila-

delphia 1773). In this pamphlet Blackstone canvassed a

large number of precedents, including most of those dis-

cussed above as well as a number of others, some. of which

he discussed in considerable detail. ° ae

The specific purpose of Middlesex Election was to

demonstrate the historical support for the proposition that ..

an expelled Member was incapable of being re-elected to |

the Parliament from which he had been expelled. Black-

stone’s research and reflection on that issue had led: him

to: conclude :that expulsion encompassed incapacity and, —

therefore exclusion: se

“EXPuLsion Clearly, ex vi termini, signifies a total,

and not a partial, exclusion from the society or parlia-

ment from-whence he is removed. If a member is ex-

cluded during pleasure, or for a certain time only, that

is, properly speaking, a Suspension, and not an Exput-

sion: And the House themselves, as has been shown,

have made the distinction in many cases, by making use

of the word suspended, where they meant the exclusion

to be temporary ; that is, either during pleasure, or for

the session, or till some end be attained. But when a

member is expelled, he is not excluded from the meeting

of that day, or of-that session, but from that pariia-

ment; that is, from that body of which he is a member ”

Middlesex Election 70. (emphasis i in original).

Moreover, Blackstone reasoned that the opposite view:

would relegate the expulsion power to the status of a vain

and useless act, for if the electors could override the House’s

decision by. simply re-electing the expelled member, “the =

determinations of the house of commons, which is a court *’

of judicature, from whence there lies no appeal, would in

_ fact become of less weight and authority than the lowest

: court now existing.” Id. at 71.

tnd ht Win el |

= ~~ eo

28 :

Blackstone ‘also pointed out in. his pamphlet. that the se

power of the House to declare a Member incapable of being

elected to that Parliament was not, as Wilkes’ supporters

had argued, in effect a command to the electors as to how.

? they should vote: as wer

| “THOUGH the house cannot, and God forbid they

ever should, say whom the electors shall choose, yet

they may declare who by law are not to be chosen:

And by expelling a member, they declare, without say-

ing more, that he is incapable of being elected for that

parliament. ” Id. at 72. ;

‘Finally, Blackstone addressed himself to the argument,

advanced by Wilkes’ proponents, that’ if there were no

appeal from a finding of incapacity by the- House, the power

to exclude a member would be arbitrary and lawless: —

THERE must, in all cases, ultimately be a power of

_ Judicature some where, without appeal; aud wherever

the constitution has thought proper to vest it, it is not

supposed that it will, or ever can, be exercised against

the express letter of the law.” Id. at 117.

B. Tar Coroymn Practice. 3

‘The embryonic legislatures of the English. Colonies

early asserted and continuously exercised the exclusive

power‘to judge the qualifications of their members. Like

Parliament, they did not believe themselves limited by the

disqualifications for membership set forth either in the

organic acts which brought them‘into existence or in parlia-

.- mentary or colonial statutes. They considered. the legisla;

‘tive body to have the inherent ‘power to judge the broad

capacity or fitness of its members.

‘

The first legislative body to appear in the new world

was the House of Burgesses of Virginia, and it provides an

excellent illustration of the exercise of the power. It first

convened on July 30, 1619, and on that date commenced to

judge the qualifications and elections of its members. At

ae \ .

| ud

its first meeting, each burgess was called upon by name to

take the Oath of Supremacy and enter the ys 4 but at

the name ‘‘Captain Warde’”’ the speaker took ex®@ption, and

Warde was asked to absent himself. The ground for the

exception was that Warde did not possess a commission

for his plantation from the Virginia Company. The Journal —

of the House records that ‘‘«fter muche debate’’ the bur-.

gesses resolved that Captain Warde might take the. oath

and be seated provisionaliy, notwithstanding the infirmities

of his position, because, among other ‘things, he ‘‘had

brought home a goode quantity of fishe to relieve the Colony

by waye of trade’? and ‘‘the Commission for authorizing

General Assembly admitteth of two Burgesses out of every .

plantation without restrainte or exception.’* He was -

admitted, conditioned on his obtaining a proper commission

' before the next general assembly. Jounnats or THE House

_ oF Burgesses or Vpkernia: 1619-1659, at 4 (1915).

Captain Warde. having been seated, the next order- of

business raised by the House was whether the two burgesses

from Captain Martin’s plantation ‘‘shoulde have any place _ .

in the Assembly.”’ It, was pointed out-that, in the patent

for his plantation, Captain Martin had a clause which -

exempted him from the provisions of the charter of the

_colony and the laws which might be made by the assembly. —

The two burgesses from Captain Martin’s-plantation were,

after-some discussion, excluded from the assembly until -

Captain Martin made his personal appearance before them.

If Captain Martin ‘‘woulde be contente to quitte & give over .

. *It is probable that the provision in the commission referred to

was similar, if not identical, to the corresponding provision in the

Ordinances for Virginia of 1621, 7 THogre, FEDERAL AND STATE

ConsTITUTIONS 3810 and n.a (1909) [hereinafter THorpe] :

“IV. THe other Council, more generally to be called by the °

Governor, once yearly, and no oftener, but for very extraordinary

- and important occasions, shall consist, for the present, of the.said

Council of State, and of two Burgesses out-of every Town,

’’ Hundred, or other particular Plantation, to be respectively chosen

by the Inhabitants : Which Council shall be — THE GENERAL

» AsseMBLy....” Id. at 3811.

‘that parte of his Patente, and . .. woulde submitte him-

selfe to the generall forme of governmente . . then his

Burgesgeg should be readmitted, otherwise they ¥ were utterly 3

-' to be excluded. . .”? Id. at 4-5.

By 1692, the his of Burgesses appears to have estab-

lished a more or less permanent committee for elections

_ and privileges. The House convened on April 1, 1692, and

on April 2, the ‘‘Committee for Elections and Priviledges”’

was appointed. On the same day it commenced its report,

which was not conipleted until April 4, The Journal re-

ports that the sheriffs of several counties had not made

due.returns of the writ for elections. The Journal does

not reveal the particulars of the sheriffs< returns but, upon

a reading of the report of the commitipe, the following

resolution was adopted by the House: ees

that the house of

udges of the Capacity

_ **Resolved nemine Contradice

~ Burgesses are the Sole & onl |

or incapacity of their o members, and that any

Sherriff or other person tsoever pretending to be a -

Judge of ye capacity or incapacity of any member of —

the House of Burgesses does thereby become guilty of

_a Breach of the Priveledges of the:said House of Bur- .

gesses.’’? .JOURNALS oF THE House or BURGESSES OF —

Vincinia: 1659-1693, at 379-81 1914).

The recurrent struggles ‘between the ‘royal governors

and the colonial assemblies are reflected in the address in

1736 by John Randolph, as speaker-elect of the\House of

Burgesses, to Governor Gooch. Randolph duly instructed

the governor as to the privileges which the House of Bur-

_ gesses claimed as its undoubted right, among which were

_. *. . . a Power over their own Members, that they

- may ‘be ‘answerable to no other Jurisdiction for any

Thing done in the House; and a:sole Right of determin-

ing all Questions concerning their.own Elections, lest

contrary Judgments, in the Courts of Law, might

31

thwart or destroy Theirs.’’ Jovrwats or THE House oF ~

BURGESSES OF Vircinia: 1727-1740, at 242 (1910).

Further instances of the exercise by the House of Bur-

gesses of its power to judge the elections and‘qualifications

of its members are found in the Journal of the House’s

session of 1742. On May 21, the committee on privileges:

and elections reported: that, upon investigation, it had

* found, contrary to the return of the writ of election, one

Andrews had received more votes than the sitting-mem -

ber, Douglas. Douglas was declared-n0t duly elected;

Andrews was declared elected and the writ was amended

accordingly, A

the next day, however, the House was informed that

"Andrews ‘‘has been guilty of many male [sic; mal-?] and.

scandalous Practices, in the Office of an Inspector,’’ where-

upon the information was referred to the -committee on

. privileges and elections. On May 24, the chairman reported

that wes ee had found

. That the said Andrews, whilst he was Inspec-

tor, was guilty of very enormous Misdemeanours and

male Practices [malpractices?] i in that Office, in Breach

of his Oath, and the Duty of his said Office: And that

he was by the Governor and Council:turned out of the.

‘said Office, for the same; and ordered to be left out of

the Commission of Peace for Accomack County: And_~

had come to“several Resolutions thereupon,. which he

read in his Place, and afterwards delivered in at the

Table: Where the same were again read, and —

to, by the House, as follows:

‘‘ Resolved, That the said Mr. William error hav-

ing been guilty of very enormous Misdemeanours and

male Practices in the Office of an Inspector, in Breach

- of his Oath, and the.Duty of his said Office, i is er

to sit as a Member in this House.

“Resolved, That the said Mr. Andrews, for his said

ra ear be expelled this House.

es ae

«Resolved, That the said Mr. Andrews be disabled

_ to Sit and Vote, as a Member in this aaa during this

_ present General Assembly.

‘“‘Ordered, That an Address be —< to the Gover-

nor, to order a new Writ to issue for Electing another

Burgess to serve in this present General Assembly in

the County’ of Accomack, in-the Room of the said

William Andrews, who is\ expelléd this House. And

that Mr. Scarburgh do attend the Governor with the

said Address.’’ JouRNALS oF THE House or BurcEssEs |

of Vincinia : 1742-1747, at 31-33 (1909). |

In the same session the House had found that one Heary

Downs, a sitting member, had 21 years’ “previously been

eonvicted of the felony of stealing one sheep, ee the

‘House, “N emine Contradicente, P

“Resolved, That the said H enry Downs having been -

convicted of Felony and Theft, and punished, as afore- —

said, is unworthy to sit as a Member in this House.

' «Resolved, That the said Henry Downs, for the’ ‘

. Causes aforesaid, be expelled this House.

‘‘ResolWwed, That the said H enry Downs be disabled

to Sit and Vote as a Member of this House, during the

‘present General Assembly.”’ Id. at 11.

_ These last two examples are denominated expulsions

rather. than exclusions, but it is clear that the grounds for

the expulsions were matters which affected the - qualifica-

tions of the member. They did not deal with misconduct in

the capacity of a member and therefore were not disciplin- _

ary in the strict sense of the term.. Moreover, the words —

‘‘expel’’, ‘‘exclude”’ and ‘‘seclude’’ seem to have been used

interchangeably in the 17th and 18th centuries without any

sharp distinction between them. Thus, the resolution in

the Wilkes Case in 1769 purported to ‘‘expel’” Wilkes from

' the Commons even though he had never been sworn or

seated in thaf Parliament, supra, pp. 20-21. ~~

An incident which occurred in the New J rey il

ture, in 1771, indicates ‘that the colonial legislatutes con-

sidered the power to expel as stemming from the power to

judge qualifications, not from their power to discipline their

members for mis¢onduct qua members. Governor William

Franklin refused to segl-a writ for a new election to fill a

vacancy created when the New Jersey: Assembly. accepted

the resignation of a member who had become insolvent.

.The Governor felt .that to acknowledge the Assembly’s

‘power to accept resignations would result in allowing them

_4o dissolve themselves through that means without the

Governor’s approval, ‘‘[b]ut the Assembly contend that in |

such a Case; if a Member does not resign, that they have

the right ‘to expel him, as being the sole Judges of the

Qualifications of the Members.’”? 10 Documents RELATING

To THE CotontaL History or Tue Stare’ or New Jersey.

307-08 (1886) [hereinafter New Jersey Arcuives]. Further

examples of the use of the word ‘‘expel’’ where we might

today use the word ‘‘exclude’’ are found in.connection with

thé 18th century state constitutions. See pp. 39-44 infra.

The New Jersey colony, particularly during the adminis-

tration of Lord Cornbury, provides several illustrations of

‘the struggles between the colonial assemblies and the royal '

governors over the power to ffidge qualifications. In 1705

proprietors of the Western Division of the Province of

New Jersey. petitioned the Lords Commissioners for Trade

and Plantations, complaining among other things of the

interference of Lord Cornbury in the assembly’s power to

judge the qualifications of its members. 3 New Jerszy

‘Ancuives 88.* The proprietors’ complaint prompted the

Lords Commissioners to remonstrate to Lord Cornbury

. ee |

‘We think, your Lordship will do well to leave the

Determination about Election of Representatives to

* The governor had refused to allow three members a seat in, the

assembly until he was persuaded that they possessed the requisite

amount of land, even though the assembly had reached a determi-

nation in their favor. 3 Ngw Jersey ArcHivEs 88, 90.

. ; | \ : . \ o

ee ra

\,-/ aod

- ;

| that House, and not to intermeddle therem, otherwise

than by Issuing of Writs for any New Election.’ Id.

at 100.

hideneaietie: 4 in 1707, Lord Cornbury himself iP complained .

‘to the Lords Commissioners that the assembly had expelled

a‘member for refusing to take an oath whieli the assembly

had no power to administer. Id. at 227. _—. Assembly

replied,-

‘*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.- We are the free-

holders representatives; and how it’s possible we

should assume a negative voice at the election of -our-

selves, is what wants [but] little explanation to make it

intelligible. is Id. at 265-66.

: The annals of the Rhode Island Colony provide further

examples of the assertion and exercise by the legislative

assembly of the power to exclude or expel members who

- were found to be unfit. In connection with the election of

members to the Rhode Island) assembly in 1650 it ‘‘was.

ordered that jn 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.’’ 1 Annoxp,

History or THE Starz or Ruope Istanp anv Provence

Piantations 229-30 (1859). ‘ In 1683 the assembly,¢xercised.

- that power by expelling a member who’ contumaciously

refused to appear in court upon being summoned.

_ “Voted: Whereas, Mr. John Warner was by the:

town of Warwick chosen to be a Deputy in this Assem- .

bly, and being from time to time called, and not in

Courte appearing, and there haveing been presented to

this Assembly such complaints against him, that the

Assembly doe judge, and are well satisfied, he is an un-

. | ; | . 35 ; | | x ad

fitt person to serve as a Deputy; and therefore see :

cause to expel him from acting in this present Assem-

ably as a Deputy.’’ Quoted in td, at 289.

_ A similar situation prevailed in Massachusetts where

‘‘the house was the sole judge of its. membership. | ‘The .

representatives might ‘settle order and purge’ their house

and ‘shake necessary orders for the due regulation thereof.’

They expelled a member in 1715 for. seandalons. immorali-

ties, and at times -excluded military officers.’’ SPzNncer,

ConsTITUTIONAL ConFiict 1s Provincia. Massscuusarss oo .

(1905) (footnotes omitted).

And, at the inception of its session in 1726, the Massa-

-chusetts Housé.of Representatives excluded a member who -

had‘ been expelled from the Hou on three —

occasions :

‘‘Whereas the Town of Tiverton bins made Choice

of Mr. Gershom ‘Woodle to’ Represent them in this*

Great and General Court of Assembly; who has ‘by his.

repeated Misdemeanours been three several times

expelled, and still continues in an obstinate fefusal of

making an Acknowledgment of his Faults, whereby he

' has rendered himself unworthy to be a Member of the -

House of Représentatives,

JH “Voted, That Mr. Speaker lesue out a Saaeat

i under his Hand and Seal, directed to the said Town of.

- Tiverton, requiring them to Assemble the said Town,

-.'and choose a Representative in the room-of the said

Gershom W oodle, and make return thereof on or before

the 13th day.of June.next.”” 7J OURNALS OF THE HovusE

or REPRESENTATIVES: OF ‘MassacHuserrs 45, 15, '68-69 ©

. (1926). .

} The examples discussed iain indicate that the satiate)

legislatures, as had Parliament, often coupled resolutions

of expulsion with a determination that the member expelleil

was ‘‘incapable’’ or ‘‘unfit’’ to be a member, either for-the

duration of the present legislature or for a longer period. .

. ; . 3 . , . , : .

. ‘

Pe

uae va

‘Phe records of the colony of North Carolina provide an .

example of the enforcement of that type of determination.

In 1758 the Assembly expelled Francis Brown, a mem-

ber from: Currituck County, for perjury, and rendered him

‘incapable to serve as a Member for any County or Town

in this Province to Sit and Vote in this or any future As-

sembly thereof for the Reasons ‘alleged in the above Re-

port.’? _5 Coron Recorps or Norra Caronina 1058

(1887) [hereinafter N. C. Recorps]. In 1760 Perquimons .

County reelected Brown, and the House on April 30 of that

year, ‘‘on hearing Mr. Francis Brown regarding his Ca-

pacity to. sit and vote in this present Assembly and fully |

and maturely having Considered the same—Resolved That

the said Francis Brown is Incapable to sit and vote in this

Present Assémbly .. .’’ and ordered a new election. 6 N. C.

* Recorps 375 (1888).

Brown was again re- -elected; cued to the writ for a

special election, and on November 12, 1760, the House

again ordered a new writ of election issued, ‘Cas no person

hath been duly returned Elected Representative for the

said County in Virtue of the former.’’ ‘Id. at 474. “He was

_later élected to the Assembly of 1761 and was then allowed |

to sit and vote. Jd. at 662-63, 672-73.

The “‘eonstitutions”’ or charters’ of several of the colo-

* “nies expressly provided that the assembly should possess ©

the power to judge the qualifications of its members. Thus,

_«¢ paragraph 9 of the Fundamental Orders of Connecticut

we

“

(1638) provided that the deputies could ‘‘examine their

owne Elections, whether according to the order, and if they

or the gretest p[a]rt of them find any election to be illegall

they may seclud such for pr{e]sent fro[m] their meet-

ing....”’ 1 Pupiic Recorps or THE CoLony.or CoNNECTICUT

* 24 ( Trumbull ed. 1850). The New York Quarter of Liberties

and Privileges of 1683 provided,

‘‘That the said representatives are the sole judges |

of the qualifications of their.own members, and like-

>

te Tet 37

wise of all undue idinltenie, and may from time to time

purge their house as they shall see occasion during

_ the said sessions.”’?, 9 ENeiisH HistoricaL Documents

229 (Jensen ed. 1955). .

bs William Penn’ S Chater of Liberties of 1701 ceidtladl that-

‘*there shall be an Assembly Yearly Chosen by the

. freeman thereof, to Consist of four persons out of

each Country of most note for Virtue, Wisdom & Abil-

ity ... [who] shall be Judges of the Qualifications and

Elections of their own mémbers ...’? 2 MINUTES OF THE

PROVINCIAL Counc OF ‘PENNSYLVANIA 58 (1852).

Gn.

Significantly, the New York Charter sets forth no ae ;

tions or prerequisites for membership whatsoever, and the

Pennsylvania charter ‘refers only to being ‘‘of most note

for Virtue, Wisdom & Ability’’, which seems to have been

merely a precatory admonition to voters.

_ The foregoing discussion does not purport to contain

a complete eatalogue of the instances in which the colonial

legislatures claimed and exercised the power to judge

’. qualifications and to be ‘‘answerable to no other Jurisdic-

tion for any Thing done in the House,’? JouRNALS OF THE

House or Burcesses oF Vireinta: 1727-1740, at 242 (1910).

But the illustrative examples set forth above confirm the

conclusions of Professor Clarke, a student of the colonial |

legislatures, who conducted an exhaustive search of the

colonial records in this country and in England, in both

published and manuscript form. After discussing a num-

ber of additional examples of the exercise of the power to

judge qualifications, Professor Clarke stated :,

‘‘Tt is. thus apparent that the assembly not only

claimed the right to: judge of the commonly recognized

qualifications, such as age, residence, and ‘property ©

holding, but placed further restrictions on the voters’

rights of representation by the reaction of the assem-.

bly itself to’ the personal conduct of individual men.

p>

38 | L«

The wide-spread noceptance ofthe belief that such

power belonged to the legislature was:as great in the

colonies as in England.’ 2? CuaRKE, PARLIAMENTARY

- PRIVILEGE In THE AMERICAN COLONIES 198 (1943) [here-

inafter CLaRKE].

&

Professor Clarke also concluded that the exercise of .

the power by the colonial legislatures was not infrequent:

‘Records are not sufficiently complete to give ac-

curate figures, but it Seems reasonable to state that at

least a hundred persons were expelled for one reason

or another from the assemblies in the continental colo-

nies.’’ CiakKE 195 n. 58.° i

* To the same one: see GREENE, THE QUEST FOR Power: THE

Lower Houses oF ASSEMBLY IN. THE SOUTHERN Roya COLONIES

198-99 (1963) [hereinafter GREENE]:

“Cases of expulsion were much more rare [than reprimand],

- although a few occurred in every colony. The grounds for expul-

_sion varied. The Virginia House of Burgesses expelled two.

members as early as 1652 and five im the eighteenth century for

moral and religious reasons. It also expelled Thomas Qsborne in

1736 and William: Andrewstin 1742 for committing misdemeanors

as tobacco inspectors, Henry Downs in 1742 for having been

- convicted of a felony in ‘Maryland twenty years earlier, William

Clinch in.1757 for extorting a receipt and release from a debt from

», an old man, and William Ball in 1758 for counterfeiting treasury

notes. The Georgia Commons ejected four members for writing a

seditious letter at its inaugural session in 1755 and later in the

same session a fifth for failing to take his seat. The South Caro-

lina Commons excluded James Graeme in. December 1733 for

. bringing an action against Speaker Paul Jenys, who,had signed a

warrant against Rowland Vaughn at the Commons’ command.

The North Carolina Lower House does not appear to have exer-

- cised the power of expulsion: until 1757, ‘when it ejected James

Carter for misappropriating public funds. ‘More famous was its

«

* expulsion of Harmon Husband, leader of-the North Carolina ——

Regulators, in December 1770. The period of exclusion after

expulsion varied from colony to colony. The Georgia Commons <

excluded the members expelled in 1755 only until he end of the

session. In the cases of Graeme in South Carolina and Osborne, »

Andrews, and Downs in Virginia, exclusion continued until the

dissolution of the House that expelled them. Permanent exclu-

- sion occurred in Virginia in 1757 with William Clinch and in

~ North Carolina in 1758 with the — Francis Brown.” (foot-

notes omitted). ;

39

€: Tur Farry State ConstirutioNs aND Practices.

_ With this colonial background, it is hardly surprising

to find that in nine of the 11 state constitutions adopted

prior to the Constitutional Convention of 1787, the houses

of the state legislatures were expressly, or by implication,

given the jurisdiction to judge the elections and qualifica-

tions of their members.*: The other two of those eleven

state constitutions, like the colonial charters:in the two

remaining states, had no provision whatsoéver on this

matter, arguably -indicating an intent not to depart from —

the Anglo-American practice described above.**

In only two of those constitutions—Massachusetts and

New Hampshire—were provisions included) which directly |

limited the assembly’s power to judge qualifications. The —

Massachusetts constitution of 1780 provided that ‘‘the house

of representatives shall be the judge of the returns, elec- —

tions, and qualifications of its own members, as pointed out

in the constitution ....’? Mass. Const. ch. I, § III, art. V_

* These were Delaware, Maryland, Massachusetts, New Hamp-

shire, New Jersey, New York, North Carolina, Pennsylvania and

South Carolina.. See 1 THorpe 563; 3 id. at 1692, 1694, 1897-99;

4 id: at 2460; 5 id. at 2595, 2631-32, 2790, 3084-85; 6 id. at 3252.

The relevant portions of those constitutions are set forth in Appendix

B to Respondents’ Brief.

- In all but South Carolina, the grant was express. In South Caro-

~ Jina, the constitution of*1778 granted to the two houses of the legis---

lature the “privileges which have at any time been claimed or

exercised” by the lower house of the colonial legislature, 6 THorPE |

3252, among which was the power to judge elections and qualifications

and to exclude or expel members, GREENE 193-98, aa a

** The constitutions of Virginia and Georgia then in effect did not

contain any provision regarding these powers, 7 THorPeE 3812; 2 id. .

at 777, but the colonial legislature$ of both states had traditionally

judged qualifications and excluded or’expelled members, see pp. 28-32

supra; GREENE 198, and the legislature of Virginia continued to do

so after the Declaration of Independence, see p. 44 infra.

Connecticut and Rhode Island, on the other hand, did not adopt

constitutions until 1818 and 1842, respectively, but continued to

operate under their colonial charters, 1 THorpe 536; 6 id. at 3222.

Rhode Island’s colonial legislature had exercised those powers prior

to the Revolution, see pp. 34-35 supra, and Connecticut had provided

_ for “seclusion” of a member under its Fundamental Orders of 1638,

see p. 36 supra.

—_——— : 40

(1780) (emphasis added). The constitution of New Hamp-

shire, which appears to have been copied from Massachu-

setts, contains language substantially similar to that of

Massachusetts. N. H. Const. part. II (1784). As can be

seen from this language, the lower houses of Massachusetts

. and New Hampshire, in judging the qualifications of their

elected members, were restricted to those specifically enu-

merated in their constitutions.*

While we do not have any legislative history regarding

‘the New Hampshire constitution,** what legislative history —

' we havet concerning the drafting of the Massachusetts

constitution indicates that the inclusion of this language

was a deliberate and conscious act on.the part of the con-

‘vention, and raisés the implication that at least some of its

members then shared the understanding that, absent the

express limitation italicized above, the provision would .

have empowered each house of the legislature to go beyond

the qualifications set forth in the constitution in judging

the fitness of its members. Such an interpretation is, as we .

have seen, consistent with prior colonial practice.

he proceedings of the Massachusetts. Convention also

' provide a further indication of the: understapding in the

* It should also be noted that the Massachusetts constitution pro-

vided, “And no person shall ever be admitted toNhold a seat in the

legislature . . . who shall, in the due course of law, have been con-

victed of bribery or corruption in obtaining an election or appoint-

ment.” 3 THorPe 1910. New Hampshire had a substantially similar

provision. 4 id. at 2470. — Aas

** See 9 NEw HAMPSHIRE STATE Papers 842 (1875).

¢ The journal of the convention at which the Massachusetts Con-

stitution was drafted is, like most eighteenth-century journals, simply —

a record of motions made and their disposition. JOURNAL OF THE

CONVENTION FOR FRAMING_A CONSTITUTION OF GOVERNMENT OF

THE STATE OF MassacHusetts Bay (1832) (hereinafter: Mass.

JourNnaL). Accordingly we have no record of the debates and thus

no express indication of the motivation behind the insertion of the

italicized language. But the journal does reveal that that language

was added by the convention to a clause submitted to it by a drafting

committee, id. at 147. Similar language had earlier been added by the

—a to a corresponding provision with respect to the Senate,

id. at 73. ;

ad .

° ie ze “ , 7

initia

: : . As

:

41

eighteenth century of the relationship between the power ,

_ to expel and the power to judge qualifications. On Feb-

ruary 8, 1780, the convention ‘‘Voted, that the Committee,

“apon the powers and privileges of the. House of. Repre- *

sentatives, take into consideration the privileges of the ~

Senate, with their power of expelling their own members.”’

Mass. Jounna 88. Neither in the draft then before the con-

vention, id. at 199-201, nor in the constitution as adopted,

id. at 230-33, was any express power given to the Senate (or

the House) to expel ‘a member. But in the draft then being

considered, the Senate had been given the power ‘to judge

qualifications whereas the Housé had not, id. at 200, 201-04.

Subsequently (on February 28), a drafting committee re-

ported a new clause concerning privileges of the House ©

‘which gave to it the.power to judge the qualifications of its

members. Id. at 147.° As amended (to add the italicized

language) that provision was adopted. Id. at 148. Thus.

the quoted resolution, suggesting inclusion of the power to -.

expel, would seem to have had reference to the power to

- judge qualifications.

The early somalia of three dteat states—Pennsyl- ‘

vania, Delaware and Maryland—contained restrictions on

_ the power to expel, which arguably had the effect of limiting

the exercise of the power to judge qualifications. The Penn-

sylvania Constitution of 1776 provided that ‘‘ [t]he mem-

bers of the house of representatives .. . shall have power to

_... judge of the‘elections and qualifications of their own

‘members; they may expel a member, but not-a second time

for the same eause . : .’’, Penn. Const. ch. II, §9 (1776).

Similarly, the Constitution of Delaware provided that ‘‘.

each house shall . . . judge of the qualifications and elestions

of its own members. : . . They may also severally expel any

of their own members for misbehavior, but not a second

time in the same sessions for the same offense, if re-

elected . . .”’, Dew. Const. art. 5 (1776). The Maryland

42

constitution contained substantially *the same language, .

Mp. ‘Const. art. X (1776).°

*. The journals of the Pennsylvania, ‘eleenes and Mary-

land conventions do not give us any indication of the objec-

_ tive sought to be achieved by permitting only one expulsion:

*

for the same reason. Procerpincs RELATIVE TO... THE

[PennsyLvania] Constitutions or 1776 anp 1790 (1825)

{hereinafter Pznn. Const. Proc.]; ProckepINGs oF THE

‘Convention oF THE DeLaware Strate, 1776, at 26 (1927);

PROCEEDINGS OF THE CONVENTIONS OF “THE PROVINCE OF

_Maryianp (1836). But it seems reasonable to surmise

that it was the intent of the framers of those constitutions.

to prevent the legislatures from disqualifying an expelled

member from re-election, as Parliament and the colonial

legislatures had done. In doing so, they may well have had

-.in mind the Wilkes Case, which was at that time relatively

recent.

“”

The eleven years between the Declaration of Inde-

pendence and the 1787. Philadelphia Convention were

turbulent ones, and fewer of the records of: legislative

-proceedings during that period have been published. We

have found reference to only two cases in that period con-

sidering the power to judge qualifications.

One of these cases-is of particular interest because of

| the attention given it by the first Pennsylvania Council ef

Censors and because of its propinquity, both geographic-

ally and chronologically, to the Constitutional Convention.

The Pennsylvania Council of Censors was a short-lived in-

* A similar provision was written into t first ¢ constitution adopted -

by Connecticut. Conn. Const. art. III, §& (1818): The journal of

- ‘the Connecticut convention reflects no- debates on that provision,

JOURNAL OF THE CONSTITUTIONAL CONVENTION OF CONNECTICUT,

1818 .(1873). The Connecticut Constitution of 1818 sets forth no

qualifications for membership except that the member be an elector.

‘Conn. Const. art. VI, §4. The selectmen and the town clerk were

given the power to “decide on the qualifications of electors ... in such.

manner as may be prescribed by law”. Id. at § 5.

43

stitution, unique in conception. The final stile of the

Pennsylvania Constitution of 1776,provided:

mu. “Sect. 47. In order that the freedom of the com-

monwealth may be preserved inviolate forever, there

shall be chosen by ballot by the freemen in each city

and ‘county respectively, [in 1783] and . . in every

seventh year thereafter, two persons in each city and

county of this state, to be called the Councm oF

Censors; ... whose duty it shall be to enquire

whether the constitution has been preserved inviolate

in every part; and whether the legislative and execu-

tive branches of governmient have performed their

duty as guardians of the people, or assumed to them-

selves, or exercised other or greater powers _— they

are entiied to by the constitution . ——

: Pokaan to this mandate, the first Council of Censors

met in 1783. Their report, which was,adopted by a vote

of 12-9 in 1784, Penn. Consr: Proc. 413-14, contained a

section in which they discussed instances which the ma-

jority believed to represent abuses or violations of the

constitution. One such instance, which generated a dis-

gent by the minority, was the unanimous expulsion of 4

member: by the general assembly in 1783 for frauds com-

mitted while a commissioner of purchases, an office which

he held prior to becoming a member of the assembly. The

majority’s argument is summarized at the outset of the

_ discussion :

‘Section 9. ‘The house of saphaibtitttie shall

have power to judge of the ‘qualifications of their own

members.’

“It is the opinion of this committee, that the

: general assembly has no right to expel one of its

“© members,’ charged with. crimes not committed as a

member, but as a public officer or in his private

capacity, until he shall be convicted thereof before

his proper judges.’’ Id. at 88-89 (emphasis added).

44

The issue which divided the Council was thus not

whether the house had the power to adjudge a member

unfit for reasons not specified in | fe « constitution (although

both Walpole’s Case and the Wil es’ Case were discussed,

id. at 89), but whether, in cases where the member was

charged with committing a crime, it had the power to do.

so before a court had convicted him. The.majority’s prin-

cipal concern: was jover the problem of prejudicing the jury

in any criminal trial that might be had., . Ibid.

When the constitution was revised in the 1790’s, how-

ever, no change was adopted to prevent a repetition of the

action found to be an abuse by the Council of Censors. The

‘power to judge qualifications was retained unchanged; the .

power to expel was limited by requiring a two-thirds vote,

as in the Federal Constitution. Pznn. Const. art. I,

$$ XU, XII) (1790). - |

In the other case, the Virginia Assembly in 1780 excluded

John Breckenridge on the ground that he was a minor, &

Waneken, THe Maxine or Tue Constitution 423 n.1 (1928)

[hereinafter Warren]. This was done eyen though there

were no provisions in the Virginia Constitution requiring

members of the state legislature to have attained their

majority, nor expressly empowering the houses of the

legislature to judge their members’ qualifications.

D. Summary.

Before turning to the Constitutional Convention of 1787,

it seems useful f pause and to review briefly the state of

‘ the law at that time with respect to the power of a legisla-

tive body to judge the qualifications of its members.

_ As discussed above, the House of Commons had asserted

and gradually established its exclusive jurisdiction to .

_ judge the qualifications of its members, and the Chancellor,

the courts of law and the House of Lords’ had each ulti-

mately disclaimed the power to inquire into the qualifica-

tions of members of the Commons. In practice, the

Commons judged qualifications other than those described

‘in statutes or the law and custom of Parliament and ex-

cluded-or expelled members for reasons of character or

conduct which it was believed rendered them unfit to assume

that high office. The most widely known-cases were those of ©

Robert Walpole and John Wilkes, in which the Commons

_ expelled them (although Wilkes had not. been sworn or seat-

ed) and declared them incapable of sitting in the Commons

+ during that Parliaméit. Moreover, it was pointed out sev-

eral times in the course of the debates in the Wilkes Case

that only the House of Commons had the power to judge the

qualifications of its members; and the resolutions of both

the Commons and the Lords affirmed this principle.

"Blackstone, in his Commentaries, had provided a con-

@®venient synopsis of the law, as to the power of the House of

Commons to judge the qualifications of its members. He .

set forth what he termed ‘‘standing incapacities’’ enforced |

by statute or the law and custom of Parliament, each ~

phrased.in a negative form, and then went on to point out .

that for reasons beyond those ‘‘standing incapacities’’ a

. . member could be held disqualified by the House of Commons

for the duration of that Parliament. 1 BLACKSTONE, Com-

MENTARIES *163, *176.

- Blackstone’s Commentaries were widely read in the

colonies, not by lawyers alone, but by educated laymen a8

well.* As one scholar has noted, in the late colonial period

and after, ‘‘Blackstone was to American law what Noah

Webster’s blue-back speller was to be to American literacy.’’

Boorstrx, THe Americans: THE CotoniaL Experience 202.

* Blackstone’s Commentaries found such a reception by the ce.

onists that, almost before the ink was dry on the pages of the’ first

edition, they were being quoted on this shore. See Baityn, Pam-

' ‘PHLETS OF THE AMERICAN Revo.uTion 1750-1776, at 554; 559, 736

(1965) (first edition of Commentaries, published at Oxford in 1765,

' quoted by James Otis in pamphlet published i in Boston in March of

that year). |

46

(1958), and as Edmund Burke pointed out to the House

of Commons in 1775, in his speech On Conciliation With

re

. The greater number of the deputies ae to

iis Sin et congress were lawyers. But all who —

read, and most do read, endeavour to obtain some

. smattering in that science: I/ have been told by’ an

eminent booksellér, that in no branch of his business, —

after tracts of popular devotion, were so many books

_ as those on thé law exported to the plantations. The

colonists have now fallen into the way of printing them

for their own use. I hear/that they have sold nearly

many of Blackstone’s i apnyade in America as

land. ...’’ 1 Works or Epmunp Burke 222,

930 (1855). |

Moreover, the first American edition of Blackstone’s Com-

mentaries, which was: sold by subscription, sold 1500

copies,* and in the \final volume the publisher,’ obviously

encouraged by the popular response to his endeavors, ad-

vertised that he already was taking orders for a second

edition (which, however, did not appear). Significantly, ~ 4

among the subscribers for the first American edition were

“nine men who subsequently were members of the Con-

’ gtitutional Convention of 1787.*%, 4 Biackstonz, CommeEn-

Takies (lst Amer. ed. 1772) <eubscribers*- list preceding

title page). Unfortunately, no subscribers’ list has been

found for Middlesea Election, Blackstone’ 8 more detailed

* As- might be éauied: many of the subscribers were public

officials or lawyers and a number of sets were sold to printers and

booksellers, apparently for resale. But a very large number of sub-

scribers were merchants, farmers or just “gentlemen”, and sets were

purchased by ministers, medical doctors, military ‘officers, millers,

a shoemaker, 'a “comedian”, a cabinet-maker, a silversmith and a Pro-

fessor of History and Languages, as well as representatives of other

occupations. 4 BLackstone, ComMENTARIES (Ist Amer. ed. 1772) .

(subscribers’ list preceding title page). .

** Gunning Bedford, Jr., David Brearly, John Dickinson, William

Livingston, Thomas- iffin, Gouverneur Morris, ‘Robert Morris,

Roger Sherman and Robert Yates.**/bid. ;

»

_ AT |

. exposition of the peokediehtn for the House of Oniieen’ |

action in the Wilkes. Case, which was published by the

publisher of the first'American edition of the Commentaries,

in Philadelphia in 1773, We are left, therefore, to con-

- jecture as to the breadth of circulation and the infaenee of —

+ : that work in this country.

On this side of the Atlantic, colonial legislatures began

to judge the qualifications of their members as soon as they

‘came into being, beginning with the first session of the first .

legislative body in the new world, the Virginia House of

Burgesses, and continuing throughout their life as colonial

legislatures. They found members disqualified on a num-

ber of grounds, many of which were not found in their

_-organic charters or colonial acts. The Charters of Liberties

; of both Pennsylvania and New York specifically delegated to

the respective colonial legislatures the power to judge the

qualifications of their members, exclusive of any other juris-

diction. As John Randolph, speaker-elect of the. Virginia

- House of Burgesses, admonished Governor Gooch, the

House claimed the sole right to judge the. qualifications of

its members ‘‘lest contrary judgments, in the Courts of

Law, might thwart: or destroy’ Theirs.” J OUBNALS OF THE

House or Burcesses or Vircinia: 1727-1740, at 242 (1910)..

When the colonists frocjaimed their independence and

promulgated in their constitutions a: framework for

self-government, they almost invariably delegated to each

house of the state legislature the power to judge the quali-

fications of its own members. However, in five of tinose

constitutions, the power was limited in some manner which

repudiated, in whole or in part, the parliamentary action in

the Wilkes Case and the colonial precedents. with

Thus, as of 1787, thie phrase ‘*judge the qualifications’, |

‘without — language ef restriction, had become a term

_* There was no similar provision in the Articles of Confederation.

As has been noted, the delegates to the Continental Congress were in,

effect “ambassadors of twelve distinct nations”. JENsEN, THE

te oF CONFEDERATION 56 (1963); Art. or Conrep. art. V,

a

48

° : —_ : °

of art with a well-defined and widely understood meaning.

That meaning included a delegation éxclusively to the

legislative body of a broad discretion in excluding or ex-

pelling members who, by reason of personal character or

. conduct, had ‘demonstrated themselves unfit to undertake

the responsibilities of membership in a public body of such

high order. It remains to be seen whether the framers at

the Constitutional Convention of 1787 took any action or-

wrote into the Constitution any language which expressly,

or by. implication, indicated an intent either to depart from

or to adhere to - well-established meaning of that phrase.

“IL. Tae iigieliaeeniad: CoNVENTION OF 1787.

The Convention vhich -was to draft the Constitution

of the United States convened in Philadelphia on May 25,

1787. On May 29;Edmund Randolph of Virginia proposed

the résolutions which history knows as the Virginia Plan.

1 Farranp, RecorpDs or THE FEDERAL CONVENTION-OF.1787, at

20 (rev. ed. 1966) (heréinafter Farrand]. . Randolph’s

resolutions with respect to theYegislature provided that the

members should be of ‘a certain e (to be determined by

the Convention) and ineligible to aiiy.. other state or na-

tional office, ibid. There was no clause* ‘empowering the

legislature or any other body to judge elections ¢ or or:

tions or to expel a member...

a +

On the next day, the Convention resolved itself ito’ .

committee of the whole house and: commenced debate upon

Randolph’s ‘resolutions.’ -Id. at 29-30. The Convention

continued to operate, almost without interruption, as a

ey committee of the whole until July 16, 1787, during which

time it considered not only Randolph’s resolutions but also

plans presented by, other members.

On July 34, the Convention appoitited ‘a committee of |

detail, posed of: John Rutledge, a lawyer and delegate »

from South Carolina; Edraund Randolph, a lawyer and dele-

gate. from Virginia ; Nathaniel Gorhqm, a merchant and

delegate from: Massachusetts who had been a membet of

eee

. ;

- 49 .

the Massachusetts constitutional convention of 1779-80;*

Oliver Ellsworth, a lawyer and delegate from Connecticut;

and James Wilson, a lawyer who ‘‘was certainly one of, the

best-educated © Ja in America’’ (1 THe Works or JAMES

Wuson © .ofcCloskey ed. 1967)) and a delegate from Penn- |

sylvaria. 2 Farranp 97. It was the mandate of the commit-

tee of detail to draft a constitution conforming to the reso-

lutions which had been adopted by the Convention. Id at 85.

A. Tue Sranpine Incapactrizs.

Before the committee of detail commenced its work,

however, the Convention considered a resolution which had

not been proposed by the committee of the whole. George

Mason, of Virginia, moved on J uly 26, 1787, that the com-

mittee of detail provide a clause ‘‘yequiring ‘certain qualifi-

cations of landed property & citizedship’’ and disqualifying

‘ persons with unsettled ac-eunts who were indebted to

the United States from being elec to the membership in

the legislature. Id. at 121. °° \% 7 7

The proposed clause produced considerable Aititite.

Gorham thought the matter ought to be left to the legiala-

ture. Madison thought the proposition a good one, but that

it should be ‘‘new modelled’’. Gouverneur Morris was op-

posed to ‘‘such minutious regulations m a Constitution’’.

__ Id. at 122. Dickinson of Delaware ‘‘was agst any recital

- of qualifications in the Constitution. It was impossible to

make a compleat one and a partial one would by implitation |

‘tie up the. hands of the Legislature from supplying the

omissions. . . .’’? Jd. at 123. Madison then moved to strike

out the word “landed”? with respect to property, because

of the difficulty of defining a uniform standard which would

suit the different circumstances prevailing 1 in the various

* Gorham had been quite active in the Massachusetts convention.

He was a ‘member (probably chairman) of the first committee ar

pointed by that convention, Mass. JourNAL 24, a member of the

_ committee which prepared the first draft of the constitution, id. at 26,

28, and a member of a number of other drafting committees, id. at

31, 77, 79, 144. °

eee : nett ; - i

50

states. Id. at 123-24;. His motion was carried. Thereafter,

‘ . the clauses relating to persons having unsettled accounts

and to public debtors were stricken. Id. at 126.

- The Convention adjourned on July 26, 1787, after re--

ferring its proceedings to the committee of detail. Id. at

128. It was in the committee of detail that the language’ of

article I, section 2, clause 2 began to take shape. See id.

at 178. Unfortunately, no minutes of the proceedings of

the committee of detail are extant. However,- Kdmund

Randolph apparently | made an outline for discussion in

- committee of the provisions which the Constitution should.

contain, based upon the resolutions of the Convention. Each

‘item in the document is either checked off or crossed out,

- indicating that it was used in the preparation of subsequent

_ drafts. Id. at137n.6. The item dealing with qualifications —

-.of members of the House of Representatives reads as fol-

lows (matter in italics crossed out; matter in. parentheses

represents changes made by Randolph):

‘<5. The qualifications of (a) delegate(s) ‘shall be

the age of twenty five years at least, and citizenship:

' and any person possessing these qualifications may be

elected except’’ Id. at 139.

Had the italicized language been adopted, it would have

suggested an intention to repudiate the legal basis for the

parliamentary and colonial decisions, including the Wilkes,

Case, heretofore discussed. However, when reported to

the Convention by the committee of detail the clause had

taken the following ‘form:

‘‘Sect. 2. Every member of the House of Repre-

sentatives shall be of the age:of twenty five years at. ”

least; shall have been a citizen of [in] the United

States for at least three years before his election; and

ghall be, at the time of his election, a resident of the.

State in which he shall be chosen.”’ Id. at 178,

Thus, the committee of detail considered and rejected

language which probably would have imposed a limitation

suheoe ee ae

upon the power to judge qualifications, as that power had —

_-been interpreted in England, the colonies and the states.

The only changes which were made in the clause by .the

_ full’ Convention were the extension of the prerequisite

citizenship. to seven years and the change of the word

‘‘resident’’ to ‘‘inhabitant’’, id. at 216-19, and the clause ©

remained in. that form when it was submitted to the com-

mittee of style on September 10, id. at 565. However, when

the committee of style reported out the clause on September

12, it had been retast in the negative form in which it now

appears, id. at 590. . ;

We have no records of the deliberations of the committee

of style and thus are left‘to surmise as to why this change .

‘ was made. According to Madison, it was the pen of Gouv-

erneur Morris; a lawyer from Pennsylvania and member

of the committee of style, id. at 553, which gave ‘‘[t]he

finish . . . to the style and arrangement of the Constitu-

tion’’, 3 Fannaxp 499. Morris, who therefore may be

assumed to have been the person who changed the language, .

stated that he had ‘‘rejected redundant and equivocal |

terms’’ so as to make the Constitution ‘‘as clear as our -

language would permit’’. Id. at 420. It is, therefore, note-

worthy that he recast that clause into the negative form

which Blackstone used when listing the ‘‘standing incapaci-

ties’’, expressly pointing out that the House of Commons

could adjudge a member incapable of sitting for other

reasons. 1 BLacksTone, ComMENTaRIES *163, *176 (4th ed.

1770) [and subsequent editions].* If it had been the intent

of the Framers.to limit the House’s-power to that of

' judging the ‘‘qualifications’’ set forth in article I, section

2, then the change made by the committee of style, par-

ticularly in light of the wide circulation of Blackstone’s

Commentaries in America, made the langenle more—not

* We know that Gouverneur Morris owned a copy of Blackstone.

. See 4 BLacKsToNE, COMMENTARIES 3 Amer. ed. 1772) (sub-

scribers’ list preceding title page).

ais ee eT Ae a Tee Y

2

less—equivocal. We believe it to be a fair inference that

this change was effected to make clear that the Framers

intended only to prescribé the standing incapacities without

‘imposing any other limit on the historic power of each

house to judge qualifications on a case by. case basis.

: The committee of detail had also reported out a proti-

sion which would enable the legislature to establish uniform

qualifications for membership with regard to property.

2 Farranp 179. It is largely upon the disposition of this

provision by the convention that Professor Warren bases

his conclusion that a singlé house can judge only those qual-

ifications expressly set forth in the Constitution. Warren

420. ‘‘For’’, states Warren, ‘‘certainly it did not intend

that a-single branch of Congress should possess a power

which the Convention had expressly refused to vest in the

whole Congress’’. Id, at 421. But an- analysis of the action

taken by the Convention on. this clause, in light of the

English and colonial background against which the Fram-

ers were writing, leads to the conclusion, we believe, that

in voting down the clause the Convention was merely depriv-

ing Congress of the power to create new ‘‘standing incapa-

Cities’? and that the Convention’s action’ is not inconsistent

with granting each house broad power to judge the char-

acter and conduct of its members.

On August.10, Charles Pinckney of South Carolina

moved that the clause be changed to provide for the owner-

ship of a specific quantum of property as a prerequisite for

office. Rutledge, a member of the committee of detail,

seconded the motion: and explained that the committee had

omitted any specific qualification ‘because the committee

could not agree among themselves. Pinckney’s motion was

-rejected.* 2 Farranp 248-49. The Convention then re-

+ Presumably because, as éarlier debates in the Convention revealed

and the committee of detail concluded, the disparate economic condi- ~

tions of mercantilist-commercial New England’ and plantation-agri-

cultural southern tidewater precluded the construction of an acceptable

. uniform standard.

CMs uit =|

fe Pe eee I SC a eee ET, Te fo aatae, ite Y

turned to consideration of the clause as reported out by the

committee of detail, +.e., that Congress be empowered to

establish prospective ‘‘uniform qualifications . . . with re-

_ gard to property.’’ ‘It is at that point that Madison’ 8 often-

quoted speech appears: |

. ‘Mr, [Madison] was opposed to the Section as vest-

- ing an improper & dangerous power in the Legisla-.

ture. The qualifications of electors ‘and elected were

_, fundamental articles in a Republican Govt. and ought

to be fixed by the Constitution. If the Legislature

could regulate those of either, it can by degrees sub-

vert the Constitution. A Republic may be converted

- into an aristocracy or oligarchy as well by limiting the

number capable of being elected, as the number author-

ised to elect. In all cases where the representatives

of the people will have a personal interest distinct from

_ that of their Constituents, there was the same reason

for being jealous of them, as there was for relying on

them with full: confidence, when they had a.common

interest. This was one of.the former cases. It was

. as improper as to allow them to fix their own wages,

_or their own privileges. It was a power also, ‘which ~

might be made subservient to the views of one ‘faction

agst. another. Qualifications founded on artificial dis-

tinctions may be devised by the stronger in order to ©

keep out partizans of a weaker faction.”’ fa. at 249-50

(footnotes omitted).

Thus, when read in the context in which it was made

. (Warren, it should be noted, takes this speech out of con-

text and places it after Morris’ motion, discussed below,

Warren 420), it seems clear that Madison was directing

his argument against the proposition that Congress should

have the unlimited power to establish ‘‘standing incapaci-

ties’’ in an area which had traditionally been the subject of .

such , in both England and - colonies. See 1

4

Buackstone, ComMENTaRigs °176; Warren 416-17. When

it is recalled that the motion under discussion was to allow

Congress to establish uniform property qualifications—a

motion which was ultimately defeated—-it seems clear that,

- in speaking of the threat of converting a republic into ‘‘an

aristocracy or oligarchy’’, Madison’s reference was to:the

property requirements which had been imposed as restric-

tions upon membership in Parliament. For, as Blackstone

candidly notes, those requirements, unlike the power to

judge qualifications, had been used to o ‘‘an aristocracy

or oligarchy’’ in power.*

After, not before (cf. “Warren 420), Madison’ 8 speech, a

motion was’ made by Gouverneur Morris :to strike out

‘ ‘with regard to property’’ in the proposed clause giving.

' Congress the power to establish ‘‘uniform qualifications’’.

2 Farranp 250. It was in response to this motion, which

was subsequently defeated, that Madison gave his observa-

tions on the British Parliament :

““Mr. [Madison] observed that the British Par-

liamt. possessed the power of regulating the quali-

ficationg, both of the electors, and the elected; and

the abuse they had made of-it was'a lesson worthy of —

our attention. They had made‘the changes in both

cases subservient to their own views, or to the views

- of political or Religious parties.’’ Ibid. (emphasis -

added).

Once again, Madison’s remarks were attained to a

clause which, if enacted, would have given to Congress the

power to establish, without limitation, any new ‘‘standing

- jneapacity’’ which the majority of the moment thought de-

_ sirable. It would also seem from his speech that it was

* “That every knight of a shire shall have a clear estate of freehold

or copyhold to the value of six hundred pounds per annum, and every

citizen and burgess to the value of three hundred pounds; except the

eldest sons of peers, and of persons qualified to be knights of shires,

and except the. members for the two universities: which somewhat

balances the ascendont which the boroughs have gcined over the

counties, Py dbliging the trading interest to make choice of landed

ere en i CoMMENTARIES *176 (emphasis added).

On

jan

55

——

Parliament’s abuse-of this power, not its use of the power

to judge individual qualifications, that he was referring to.

High on the list-of those abuses in Madison’s mind must

have been the Parliamentary Test Act (30 Car. II st. 2,

ce. 1 (1678) ) which had excluded Catholics as a group from

Parliament.* It seems more probable that this Act, rather

: _ than, as Warren suggests, the Wilkes Case, was the ‘‘lesson”’

\ to which Madison referred. Cf. Warren 420. Since the

", power to ‘‘establish’’ standing restrictions on membership

and the power to ‘‘judge’’ qualifications had traditionally .

been treated as two separate and distinct powers, and since ‘i

the House of Commons in expelling Wilkes had acted under

its power to ‘‘judge’’, stripping the Congress of the power

to “‘establish’’ standing restrictions would impose no lim-

itation upon the: power of either house to deal with any

future ‘‘Wilkes Case’’; only a limitation on the power of |

each house to judge qualifications or to expel a member**

could have that effect. All of these factors taken together.

suggest that Professor Warren’s connection of Madison’s

speech and the Wilkes Case lacks substantial justification.

It was also in this context that Williamson made his

observation that — | f :

‘ “Should a majority of the Legislature be composed

of any particular description of men, of lawyers for

example, which is 10 improbable supposition, the fu-

ture elections might be*secured to their own .body.”’

2 Farranp 250: © | an

The language ‘of Williamson’s speech likewise indicates

that he was concerned about the possibilities of abuse if

Congress were given an unlimited power to establish new *

* That such statute was in the minds of the Framers is indicated

by the prohibition contained in article VI, section 3, which was not,

¢ contained in the draft reported out by the committee on detail, 2

‘ Farranp 188, but was introduced by Pinkney on August 20, id. at

342, ten days after Madison’s speech. a ee

‘ ** Thus, the two-thirds requirement for expulsion, proposed by

Madison, may reflect concern over the Wilkes Case, see pp. 57-58

infra.

56

“standing incapacities,”’ rather than if a house had the

right to consider the qualifications of its members on an *

individual basis. |

B. Tue Powzr To JupGE QUALIFICATIONS. —

The provision giving to each house the power to judge

the qualifications of its-members was not contained in the

resolutions of the Convention which were referred to the~

committee of detail. Id. at 129-33. It first appeared in a

draft prepared by James Wilson; which apparently was

used in the course of deliberations by the committee of de-

tail, Id. at 155.. It is well to recall here that Gorham, a

member of the committee, had been quite active in the

Massachusetts constitutional corivention, and that the Mas-

- sachusetts convention had adopted a provision which limited -

the power of the legislature to judging those qualifications

‘‘pointed out in the constitution’. Moreover, we have the

testimony of another member of the committee, Edmund

Randolph, that ‘‘the Constitution of Massachusetts was pro-

- duced... in the grand Convention.’’ 3 Exiiot, Desares 1

THE Sevenat. Sratz CoNVENTIONS ON THE ADOPTION OF THE

-FeperaL Constitution -368 (1876). But the limitation con-

tained in the Massachusetts Constitution was not adopted

- even though knowledge of its existence and of the pre-

ein Py necessity for it, at least in the eyes of Massachusetts,

if} the Wilkes Case .and the colonial practice was to be re- .

pudiated, must be imputed to at least two members of the

committee. . Nevertheless, the ‘‘judge qualifications’’ clause

was reported out of the committee, of detail in the form in

which it now. appears if the Constitution, 2 Farranp 180,

‘and was adopted by the Convention ‘‘nem. con.’’, id. at 254.

C. Tse Power to Expt.

. The resolutions referred by the Convention to the com-

mittee of detail also lacked a provision giving to the houses

of Congress the power to expel members. That provision

‘BT

was first referred to in the outline for discussion prepared

by Edmund Randolph: )

643, (quaere. how far the right of expulsion may

be proper.) The house of delegatés shall have power

over its own members.’’ /d. at 140.

Such a provision was first set forth in .the draft prepared’

by Wilson, referred to above, in the following language:

‘‘Kach House may expel a Member, but not a second

_ Time for the same Offense.”’ Id. at 156.

It should here be kept in mind that James Wilson was from

Pennsylvania and that the Pennsylvania Constitution con- .

tained a clause which prohibited the expulsion of a member

__of the state legislature a second time for the same offense.

In the next draft prepared by. Wilson,* the provision ap-

peared in the a ie form (parentheses indicate matter

crossed gut; italics indicate matter added) :

«Bach House (shall have Authority to) may de- |

terminé the Rules of its Proceedings, (and. to) may.

punish its (own) Members for disorderly Behaviour.

(Each House) and may expel a Member, (but. not a. ae

second Time for the same Offense).’’ Id. at 166.

The éffect of the omissions and additions indicated in

that dfaft is to cast the clause into the form in which it was

reported out by the committee of detail (except for.

capitalization and punctuation), id. at 180. Thus, it appears

that the committee of detail ‘consjdered and ‘rejected yet

another provision which would e limited the power of

each house of Congress in a manner which would have

repudiated in part the decision in the Wilkes Case and in

* This draft corjtains emendations i in Rutledge’s hand; so we know

“that it was considered by at least one other member of the committee.

in ac semta 163 n.17. -

_ 58

the colonial cases.* The only change made in the clause by

_ the Convention was the insertion, on Madison’s motion, of

the phrase ‘‘with the egxcurrence of 34’’ between the words

‘‘may’’ and ‘‘expel’’. Id. at 254. As so amended, the

clause was agreed to ‘‘nem.con.”’. Ibid.

Although, as we have pointed out above, sini seems

to be no reason for concluding that Madison had the

Wilkes Case in mind when speaking in ‘opposition to the’ ~

proposal to allow Congress to create’ new standing in-

capacities, as Warren suggested, it is entirely possible that.

he was thinking of that and similar cases here. This be-*

comes clear when it is recalled that Wilkes. was initially

expelled from the Commons and that Pennsylvania, Dela- —

ware and Maryland had limited the expulsion power, >

\

parently as a pension to the Wilkes Case. \ . ,

D. ‘Sumas. \

‘Thus the. Convention considered and sabeetel at least

two clauses, and possibly a third (the Massachusetts

variant), which would have repudiated, in whole or\ in part, .

the English and colonial precedents, including the Wilkes

Case. On the other hand, the acts of ‘the Convention in

rejecting ‘provisions which would have given to Congress :

_ the power to create new ‘‘standing incapacities’’ do not, in

our analysis, really bear on the question whether each house ~

was denied power to judge en of individual

; meaner.

Ill. Tue I RATIFICATION PERIOD.

| ’ There remains for. consideration whether any further

light was cast on the Framers’ aaiestending of the mean-

-

* Neither “Wilkes” nor “Wilkes Case” appears in the index to”

Farrand (4 Farranp 127, 226), although other names mentioned in

| ‘ the debates do, ¢.g., “Blackstone’ ’*, “Bolingbroke”, and “Bowdoin”

(id. at 134-35). Presumably, therefore, to the extent that our present

records are > complete, Wilkes was not discussed in the Convention.

2 be. 59 ) oe

ing of the ‘*judge qualifications’’ clause during the period —

of the ratification conventions (1787-1789). _

Our review of the convention f 1%

states, as set forth in Elliott’s Dep

discussion of. article I, section of the’ scope of the

power to judge qualifications or to éXpél conferred thereby.

Moreover, our research has not disclosed any discussion of

the precise point by any of the joniting public a

_of the period..

There was, however, considerable public concern when

the genom was proposed that,the upper-class members

= ¥ of the Convention had been able subtly to manipulate the

mechanics of represéntation so as to exclude from a voice

in Congress those who were not members of their own class. °

That concern was evidenced by a debate which occupies

some of the most frequently-cited pages of The Federalist.

edings in the several

Aas not revealed any

One of the most sophisticated and articulate spokesmen

for the anti-Federalist faction in New York was “Brutus,”

7 thought to be the political pseudonym for Robert Yates.°

Vy. He speculated that by deft. execution of the power given |

to Congress in article I, section 4 to regulate the times,

places and manner of electing Members of Congress, the

“rich and well-born’’ might be preferred:

‘‘Tt is clear that, under this article, the federal ‘aie

lature may institute such rules respecting elections as to

, lead to the choice of one description of men. The weak-

“ness of the representation, tends but too certainly to

confer on the rich and well-born, all honours; but the

power granted in this article, may be so exercised, as to

secure it almost beyond a possibility of controul.’’

Brutus No. IV, N. Sus Independent J ournal, Nov. 29,

(1787.

It was to meet this argument that Hamilton with ‘The

Federalist No. 60. Article I, section 4 is the only clause of -

* Kenyon, THE AN?IFEDERALISTS 323 (1966).

a

ra eeere,

‘the Cvnstibniion he discussed in that number, except inan. *

aside where lie referred to the lack of a congressional ‘

abet to/preseribe qualifications with respect to property:

ies “The truth,is that there is no method of securing to the _

rich the preference apprehended, but by prescribing ,

_ qualifications of -property either for those who may -

elect, or be elected. But this forms no part of the ©

power to be conferred upon the national government. ;

Its authority would be expressly restricted to the regu-

“lation of the times, the places, and the manner of elec-

tions: ©The qualifications of the persons who may

choose or be chosen, as has béen remarked upon another .

occasion, are. defined and fixed in the constitution; and -

are unalterable by the legislature.’ THE fapanarasr

No. 60, at 408-09 (Cooke ed..1961) [all subsequent refer-

énces are to this edition unless otherwise indicated].

“Hamilton's atatemnénit sialic alone coutd—be inter

preted. as expressing the belief that a house of Congress

_ may consider only: those qualifications specified in the Con-

stitution, But when his statement i is read in context, it is

- seen that he was. directing his comments to another issue,

a” * the ? ncay® integpretation of the ‘Times , Places and -

Manner’”’ clause, w reiteratj ng that Con eee eould not

pssst: impose qualifications, applicable to all seeking

election, i in addition to those specified i in the Constitution.*

Madison’s ‘statement.in The Federalist No. 52, which

ehiesnclh was al , other: occasion”? erscier to by Hamilton,

— *It is. ctietioes forgotten that The Federalist is “a piece of

very special pleading”’ which “worked only a smalt‘influence upon the

course of> events during the struggle over fatification. Promises, .

pthreats, bargains, and face-to-face debates, not eloquent words in even

the most widely circulated newspapers, won hard-earned victories for

the Constitution in the crucial states of Massachusetts, Virginia, and

New York.” Tue F EDERALIST xi, xv en ed. 1961) (introduc-

tion).° rg

tas

61

seems similarly directed to the lack of power to create new

~ ‘standing incapacities’’ :

The qualifications of the elected being less care-

fully and: properly defined by the State Constitutions,

* and being at the. same time more susceptible of uni-

‘ formity, have been very properly considered and regu-

lated by the Convention. A representative of the

_* United States must be of the age of twenty-five years;

must have been seven years a citizen of the United

States, must at the time of his election, be an inhabitant

of the State he is to represent, and during the time of

__his service must be in no. office under the United States.

Under these reasonable limitations, the door of this

part..of the Federal Government, is open to merit of

every description, whether native or adoptive, whether

young or old, and without regard to poverty or wealth,

or to any particular profession of religious faith.”’

Id. at 354-55.* © ee

Madison seems say oe he arguing against the existence of

any power in Congress to create,-by legislations new pre-

requisites with respect to matters of ‘religion, property, .

birth or profession, matters which had traditionally been

the subject _of legislatively created ‘‘standing incapacities”’,

by Parliament, 1 BuackstonE, CoMMENTARIES *163,.*175-76,

by colonial legislatures, Ctarke 151-52, and by the states,

Warren 416-17. He was meeting. the charge that ‘‘the

House of Representatives . . . will be taken from that class

‘of citizens which will have. least sympathy with the mass

*In Lhe Federalist No. 57, Madison reiterated his conclusions

in No. 52: ie

“Who are to be the objects of popular choice? Every citizen

whose merit may. recommend hirn. to the esteem and confidence

_. of his country. No qualification of wealth, of birth, of religious

_ faith, or of civil profession, is pérmitted to fetter the judgment ~

or disappoint the inclination of the peonle.” Jd. at 385 (empha-

sis added)... : :

%

62

ofthe people’’, THz Freprrauist No. 57, at 384, by correctly

pointing out that, in so far as the standing prerequisites

for office were concerned, the House of Representatives was

more democratic than most state legislatures. So far as

‘appears from the text, he did not purport to discuss in any

detail the power of the houses of Congress to judge the

qualifications of their respective members. His statement

, that ‘‘the door :..is open to merit of every description”’

(emphasis added) may well indicate that he held the view

_ that each house possessed the power to inquire into the

individual fitness or capacity of its members and to. exclude”

or expel | an individual for unfitness i.e., the very power

which thé English, colonial and state legislatures had exer-

cised and which both houses of ‘Congress subsequently

' exercised. eas

In light of the long history of.colonial and state practice

underlying the power to judge qualifications, interpreted to

encompass the power to inquire into the individual charac-

ter and conduct of the member, we cannot subscribe to

petitioners’ suggestion that the Constitution would not have

been ratified if such had been the intent of the Framers.

Br. 46-47. We have found no discussion of the issue either |

‘in the state ratification conventions or in the principal

pamphleteers and commentators*of the period. The gen-

eral statements in the conventions of New York, Pennsyl-

vania and Virginia to:which petitioners refer were directed

to other issues. Significantly, the constitutions and prac-

tices of those states placed no restriction on the power of.

- legislative-bodies to adjudge. an individual as unqualified

because of his personal misconduct and to exclude or expel —

him (although in Pennsylvania, he could not be expelled

a second time for the’same offense). See pp. 28-32, 36-37,

41-44, supra; Appendix: B. The power was not discussed,

we believe; simply because the ‘‘wide-spread acceptance of

the belief that such power belonged to the legislature was

as great in the coloniés as it was in England’’, CLARK 198,

and the power was therefore not controversial.

a :

a“

63

IV. CONCLUSION

When the Framers wrote into article I, section 5 of the

Constitution the power of each house of Congress to judge

the qualifications of its members and granted the power to

expel a member upon a two-thirds vofe, they were not

_ writing upon a blank slate. They were writing against a

background of some 160 years of colonial and state experi-

ence, coupled with several centuries of parliamentary prac-

tice, during which time the words used by the Framers had

attained a precise, well-defined and widely accepted mean-

‘ing. The language chosen, absent express limitation,

encompassed dn exclusive, unreviewable power on the part

of the legislative body to judge the individual fitness or

capacity of the member, unrestricted by the standing pre-

requisites for office. | |

*. At the Constitutional Convention, the Framers took no

action and wrote into the Constitution no language: (with

_ the exception of the two-thirds vote limitation:on the power

to expel) which evinced an intent to repudiate the experi-

ence with which they, were familiar. The debates relied

‘upon by Warren and others were directed to quite: a dif-

. ferent issue: whether Congress should have the power to

create new standing incapacities. Moreover, the Con-

vention deliberately rejectéd several proposals which would

quite clearly have imposed restrictions upon the power as

traditionally interpreted. — :

Finally, given the wide acceptance on this side of the

Atlantic of the power to judge a member’s individual fit-: .

ness, the absence of any discussion of the power during the

ratification campaign and the absence of any evidence or

basis for conjecturing that the Wilkes Case was in the

forefront of the public mind nearly twenty years after it

‘occurred, we see no basis for speculating that the Consti-. :

tution would not have been ratified if the power to judge

qualifications had been so understood. —

{e

a i a rye