# Appendix — Powell v. McCormack > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0093%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1969 - **Citation:** 395 U.S. 486 ## Text 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., | 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 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 \ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0093%3A10. Public record. Not legal advice.