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

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

Burke said in his address to the electors at Bristol:

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

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

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

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

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

cases.

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

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

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

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

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

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

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

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

The

great rebellion was greater than in piping times of peace. course adopted by the Socialist party toward the late war gives unusual importance to the present case. If it had not been for the war and the development and consequences of the war this case would never have arisen. The counsel for the defense are right in that respect. But because the occasion is different and the necessity is greater doesn't result in the conclusion that the right could not or ought not be exercised at other times. It is because the duty then becomes plain in the light of conditions which is only seen dimly when everything is moving along slowly, easily and peacefully.

Now, another case. In the case of Mr. Bright, also expelled from the United States Senate in 1862 for writing a letter to Jefferson Davis, it was agreed by the majority of the Senators that he was not guilty of treason, but he was expelled nevertheless for a disloyal act.

Senator Sumner in this case said:

"Under the Constitution, the Senate in a case like the present, is the absolute judge, free to exercise its power according to its own enlightened discretion. It may justly de clare a Senator unworthy of a seat in this body on evidence defective in form, or on evidence even which does not constitute positive crime. It is obvious that the Senate may act on any evidence which shall be satisfactory to show that one of its members is unworthy of his seat without bringing it to the test of any rules of law. It is true that the good name of the individual is in question; but so also is the good name of the Senate, not forgetting also the welfare of the country; if there are generous presumptions of personal innocence, so also are there irresistible instincts of self-defense which compel us to act vigorously, not only to preserve the good name of the Senate, but also to preserve the country."

And Senator Davis said:

"There is no law which defines any particular class of offenses that shall be sufficient to expel a Senator from his seat. The common law does not. There is no statute law that does. There are no rules of evidence establishing technical rules of testimony that are to guide and control and govern this body in getting its lights and reaching its con

clusions when a Senator is thus on trial. The general rule and principle of law and of reason and common sense is that whatever disqualifies a member of the Senate for the proper discharge of his duties, whatever it may be, is sufficient and ought to be held sufficient, for his expulsion, and whatever evidence satisfies the mind reasonably and according to moral certainty and truth of the existence of that cause is sufficient evidence without resorting to the technical rules of testimony upon which to convict him."

And Senator MacDougall said:

"It is no question of law. We have not asked whether the Senator from Indiana is guilty or not guilty. We have to judge him by our best judgment, and by that we try him; and we may say yea or nay, as we think, whether he be a true man or not to sit in the Federal councils to conduct the affairs of the United States."

I have cited a very interesting case which I will not read to you, arising as early as 1619, in the House of Burgesses in Virginia, where two delegates appeared, when under the terms of the patent of which they were occupants, they were not bound by certain laws of the colony of Virginia. Their case was taken up and they were denied seats although elected under the laws of the colony, because not submitting to the laws of the colony, saying in the language of that day, "otherwise they were utterly to be excluded, as being spies, rather than loyal burgesses; because they had offered themselves to be assistant at the making of the laws, which both themselves and those whom they represented might choose whether they would obey or not."

No case is cited in the parliamentary history of this or any other government in conflict with these cases, unless it be a case arising in this Assembly, to which I shall later direct attention.

The discussion of the power of the legislative body to exclude members commences with offenses of a lower degree than disloyalty, and the point so far as it affects this case arises from the report of the sub-committee of the Judiciary Committee of the Assembly in 1918.

The case of Decker: Decker became a member of the National Guard on October 30, 1911, and served until October 30, 1916, as a sergeant in active service. On October 30, 1916, after hav