does not include the power to suspend involves such a contradiction and violation of logic that a discussion of it would involve a waste of time. It is an attempt to establish the proposition that the right to destroy does not carry with it the right to limit.

The right to suspend has been frequently exercised for mere breaches of etiquette of the higher sort; and it is invoked in the present case only on account of the difference in practice in the organization of the houses of the Legislature of the State and the Houses of Congress. There no member may take his seat until he has appeared at the bar and taken the oath of office. Here he may take the oath of office at the bar or he may subscribe to his oath in the office of the Secretary of State as soon as he receives his certificate of election. Jurisdiction is assumed in the Houses of Congress when a member elected appears at the bar to take his oath. Here jurisdiction is assumed upon the organization of the house to which the member is elected. No motions are made or tolerated according to the practice of the two houses of the Legislature, until there is a presiding officer and a clerk to keep the records. Those who wish to indulge in a refinement of the differences and distinctions of the two practices are at liberty to do

So.

They have no better foundation than the difference in the practices of Congress and of the Legislature under the Federal and State Constitutions. Under the former a member may be prevented from taking his oath and his seat by a majority vote, but can only be expelled by a two-thirds vote; while in the State a member may be prevented from taking his seat, or expelled, by a majority vote. The distinction, therefore, between the practice at Washington and the practice at Albany arises solely from the necessity of meeting the special provisions of the Federal Constitution, which are not found in the State Constitution. Is it conceivable that if a statute were enacted by a Congress of the United States, permitting a member elect to take his oath in the office of the Secretary of State, all of the rulings of the two houses as to the admissibility of such member would be dispensed with and that the question as to his eligibility to his seat could not be raised at the beginning of his service by reason of this change of form? It is the substitution of a shadow for a substance.

It was held in the 99th of New York that these powers were all vested in the houses of the Legislature without limitations. The courts stated the necessity of the powers and it is conceded in all of the authorities.

The Chairman. They have unfortunately adjourned the House until 12 o'clock.

Mr. Brown. Are you going over there?

Assemblyman Cuvillier. This House convenes at 12 o'clock. Mr. Brown. I was so informed. Do you wish me to suspend now?

(Discussion off the record regarding adjournment.)

The Chairman.- We will take a recess until 2 o'clock. Whereupon at 11:55 A. M., recess was taken until 2 P. M.

AFTER RECESS, 2:20 P. M.

The Chairman.- Proceed.

Mr. Brown.- Judge Rapello said in People ex rel. McDonald v. Keeler, 99 N. Y. 463:

"That instrument (the State Constitution) contains no express provision declaring any of the privileges of the members of either house, except that for any speech or debate in either house, the members shall not be questioned in any other place. Even the privilege of exemption from arrest during the sessions, is not declared. No power to keep order or to punish members or others for disorderly conduct, or to expel a member, is contained in the State Constitution as it is in the Constitution of the United States. All these matters are in this State left under the regulations of the statutes, and there is not even express authority to enact such statutes. (1 R. S., Chap. 7, Title 2.) The necessity of the powers mentioned is apparent, and it is conceded in all the authorities (see Cooley's Const. Lim., 133)."

Mr. Chairman, and gentlemen of the Committee. At the time of the recess I was just closing an argument in relation to the method of procedure to be adopted in cases of this kind. The only basis of the argument that this procedure should not be followed is that the State is defenseless and whoever happens to be an elective officer is entitled to enter upon the duties of his

office for the purpose if he will, of destroying the Government which he is chosen to administer. If there be any basis or room for such argument with reference to a citizen elected to this body, it follows that a candidate for Governor, openly disloyal to the Constitution of the State and of the United States, could not be impeached and removed from office, and this would be in direct conflict with the Sulzer case; Governor Sulzer not having been removed on account of disloyalty, but for a lesser offense.

A President-elect of the United States whose announced purpose was the dissolution of the Union would, under such rule, be entitled to take and hold his office. This in the light of the developments of the trial of Andrew Johnson would be absurd.

As we have seen, some of the authorities rest this power upon article 3, section 10 of the State Constitution, and article 1, section 5 of the United States Constitution, that each house shall be the judge of the election returns and qualifications of its own members. While others place it upon the general powers of the house in any particular case, and go to the extent of holding that cach house is the absolute and untrammeled judge of the right of a member to his seat, and there is no authority limiting or restricting the power and authority of a legislative body over the right of a member to occupy his seat.

The right to exclude members takes precedence over their rights and individuals. It takes precedence over the rights of the constituents that elected them, and this precedence of right rests upon the fundamental principle and maxim of Anglo-Saxon law, that regard for the public welfare is the highest law.

Nor need the announcement of the principle of the plenary power of a parliamentary body over the right of a member to his seat in said body be the occasion of any alarm, in representative government. While the power is plenary or unlimited in its terms, it is judicial in its nature, has always been exercised judicially and will be exercised judicially in this case.

It

And it is because it always has been and always will be exercised judicially that the method and procedure adopted is not in conflict with the principles of representative government. was said by Judge Folger in the 80th New York that "The power thus given to the Houses of the Legislature is a judicial power and each house acts in a judicial capacity when it exerts it. The express vesting of the judicial power in a particular case so closely and vitally affecting the body to whom that power is given,

takes it out of the general judicial power, which is at the same time in pursuance of a general plan that has regard in each part to every other part, bestowed upon another body; both bodies being contemporaneous in origin and equal in dignity, degree and proposed duration."

That is, the judicial and the ligislative branches. The legislative branch possesses the judicial power necessary to its own preservation and protection, and no further. It has been exercised as long as parliamentary government has been known without offering a single peril to representative government. And the greatest mistake cited in the exercise of the power was the exclusion of an atheist from the English parliament because he refused to take the Christian oath and no case is cited where the power has been abused on the American continent. This element of justice, fundamental, basic, all-pervading justice which lies at the root of representative government where equal rights extend to every man, reaches out and grasps you in this proceeding. You could not, sitting here in this hall, with the arms of the State inscribed upon your tapestry and upon your walls, with the Goddess of Justice with the scales in one hand and the sword in the other, ever forget justice. And the distinction between the position which you occupy in this respect, and these defendants,- if I may so call them,- is that they would change that figure of Justice; they would leave her blindfolded, they would leave the scales in one hand, but they would strike the sword from the other. You have her standing before you here not merely as a concrete picture of the duty which you are to perform in holding the scales of justice, but you have her here before you with the sword in her hand as a proof to you that it was the will of the people of this State in estab lishing that insignia that you should render judgment as the scales decided. What kind of justice? Not merely the justice of a court of law where the rules are fixed and determined upon the principle that it is better that many guilty escape rather than that one innocent should be punished, but eternal justice, the justice which enables you not merely to protect yourself but to protect the people of the State, that sort of justice which wells from the minds and souls of the Assemblymen under their obligation of citizenship in the State and in the nation, and under the obligation of their solemn oath of office.

Have we made it plain? Is it clear that you have followed precedents since the republic was established? Is there any necessity of your exercising this authority in the organization of the Assembly? Have you followed the very letter of the Constitution and of the great construers of the Constitution who have gone before you? If you have, you need not concern yourselves with the sort of criticism which is occasionally suggested in one place and another, that it would be better that you had taken the proceeding in some other form. You are not at liberty, in the exercise of your powers and the performance of your duties, to disregard precedent or to disregard the terms of the Constitution, or to disregard your duties to the State. It may be that those who have not studied these problems and that embraces the most of us were not familiar, at the time this case arose, with what the precedents were; with what the law was; with what your duty was. That indicated that a study of the Constitution and the history of our country was extremely desirable for all of us.. But when the truth appeared, when the principle is clear, it is the performance of the duty and not the study of criticism that should control this Committee and this House in the performance of its duties.

I will not detain you longer upon the discussion of this subject. I wish to say to the Committee that if there is any question, in the course of the matters that I discuss, that any committeeman desires to bring up, or wishes to make an inquiry in relation to, it will not be deemed a discourtesy on his part if he disturbs the argument.

Assemblyman Evans.- Sir, before you finish, I would like to hear from you upon the proposition of article 3: "No other oath, declaration or test shall be required" as to the meaning of the word "test there.

definite mean

Mr. Brown.- Well, the word "test" has a very ing in the development of constitutional history. They formerly had a Test Act and Test Acts, in England and other parts of the English empire, by which a man, for instance, who was a Catholic could not be admitted to a legislative body. The Test Act I have not briefed up the subject, but I am familiar with it in a general way, as I have read of them in history and the test referred to is that a man shall not be required to say that he does or does not believe in this or