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bonds, to be delivered as fast as sections of the road were completed. As these alone might not be sufficient to complete the road, Congress authorized the company to issue their own bonds for the deficit, and secured them by a mortgage upon the road, which should be a lien prior to that of the Government. Congress never intended that the owners of the road should execute a mortgage on the road prior to that of the Government, to raise money to put into their own pockets, but only to build the road. The men who controlled the Union Pacific seem to have adopted as the basis of their action the right to incumber the road by a mortgage prior to that of the Government to the full extent, whether the money was needed for the construction
of the road or not.
It was clear enough they could not do this directly and in terms, and therefore they resorted to the device of contracting with themselves to build the road, and fix a price high enough to require the issue of bonds to the full extent, and then divide the bonds or the proceeds of them under the name of profits on the contract. All those acting in the matter seem to have been fully aware of this, and that this was to be the effect of the transaction. The sudden rise of value of Credit Mobilier stock was the result of the adoption of this scheme. Any undue and unreasonable profits thus made by themselves were as much a fraud upon the Government as if they had sold their bonds and divided the money without going through the form of denominating them profits on building the
Now had these facts been known to these gentlemen, and had they understood they were to share in the proceeds of the scheme, they would have deserved the severest censure.
his influence by personal appeal to his fellow-members, and by other modes, which often is far more potent than a single silent vote.
We do not think any member ought to feel so confident of his own strength as to allow himself to be brought into this temptation. We think Mr. Ames judged shrewdly in saying that a man is much more likely to be watchful of his own inBut terests than those of other people. there is a broader view still which we think ought to be taken. This country is fast becoming filled with gigantic corporations, wielding and controlling immense aggregations of money, and thereby commanding great influence and power. It is notorious in many State legislatures that these influences are often controlling, so that in effect they become the ruling power of the State. Within a few years Congress has, to some extent, been brought within similar influences, and the knowledge of the public on that subject has brought great discredit upon the body, far more, we believe, than there were facts to justify.
But such is the tendency of the time, and the belief is far too general that all men can be ruled with money, and that the use of such means to carry public measures is legitimate and proper. No member of Congress ought to place himself in circumstances of suspicion, so that any discredit of the body shall arise on his account. It is of the highest importance that the national legislature should be free of all taint of corruption, and it is of almost equal necessity that the people should feel confident that it is so.
In such case the rules of the House, as well as the rules of decency, would require such member to abstain from voting on any question affecting his interest. But, after accepting the position of a member of Congress, we do not think he has the right to disqualify himself from acting upon subjects likely to come before Congress without some higher and more urgent motive than merely to make a profitable investment. But it is not so much to be feared that in such case an interested member would vote as that he would exercise
In a free government like ours, we cannot expect the people will long respect the laws, if they lose respect for the lawmakers.
For these reasons we think it behooves every man in Congress or in any public position to hold himself aloof, as far as possible, from all such influences, that he may not only be enabled to look at every public question with an eye only to the
Had they known only that the profits were to be paid in stock and bonds of the Union Pacific Company, and so make them interested in it, we cannot agree to the doctrine, which has been urged before us and elsewhere, that it was perfectly legiti-public good, but that his conduct and momate for members of Congress to invest in tives be not suspected or questioned. The a corporation deriving all its rights from only criticism the committee feel compelled and subject at all times to the action of to make on the action of these members in Congress. taking this stock is that they were not suf ficiently careful in ascertaining what they were getting, and that in their judgment the assurance of a good investment was all the assurance they needed. We commend to them, and to all men, the letter of the venerable Senator Bayard, in response to an offer of some of this stock, found on page 74 of the testimony.
The committee find nothing in the conduct or motives of either of these members in taking this stock, that calls for any recommendation by the committee of the House.
MR. JAMES BROOKS, OF NEW YORK.
The case of Mr. Brooks stands upon a different state of facts from any of those already given. The committee find from the evidence as follows: Mr. Brooks had been a warm advocate of a Pacific Railroad, both in Congress and in the public press. After persons interested in the Union Pacific road had obtained control of the Credit Mobilier charter and organized under it for the purpose of making it a construction company to build the road, Dr. Durant, who was then the leading man in the enterprise, made great efforts to get the stock of the Credit Mobilier taken. Mr. Brooks was a friend of Dr. Durant, and he made some efforts to aid Dr. Durant in getting subscriptions for the stock, introduced the matter to some capitalists of New York, but his efforts were not crowned with suc
Government director of the Union Pacific road, and as the law provided such directors should not be stockholders in that company, he would not hold this stock, and directed Dr. Durant to transfer it to Charles H. Neilson, his son-in-law. The whole negotiation with Durant was conducted by Mr. Brooks himself, and Neilson had nothing to do with the transaction, except to receive the transfer. The $10,000 to pay for the one hundred shares was paid by Mr. Brooks, and he received the $5,000 of Pacific bonds which came with the stock.
The stock had been so far taken up, and was then in such demand, that Durant could not well comply with Brooks's demand for two hundred shares. After considerable negotiation, it was finally adjusted between them by Durant's agreeing to let Brooks have one hundred shares of Credit Mobilier stock, and giving him with it $5,000 of Union Pacific bonds, and $20,000 of Union Pacific stock. Dr. Durant testifies that he then considered Credit Mobilier stock worth double the par value, and that the bonds and stock he was to give Mr. Brooks worth about $9,000, so that he saved about $1,000 by not giving Brooks the additional hundred shares he claimed. After the negotiation had been concluded between Mr. Brooks and Dr. Durant, Mr. Brooks said that as he was a
The certificate of transfer of the hundred shares from Durant to Neilson is dated December 26, 1867. On the 3d of January, 1868, there was a dividend of 80 per cent. in Union Pacific bonds paid on the Credit Mobilier stock. The bonds were received by Neilson, but passed over at once to Mr. Brooks. It is claimed, both by Mr. Brooks and Neilson, that the $10,000 paid by Mr. Brooks for the stock was a loan of that sum by him to Neilson, and, that the bonds he received from Durant, and those received for the dividend, were delivered and held by him as collateral security for the loan.
During this period Mr. Brooks had talked with Dr. Durant about taking some of the stock for himself, and had spoken of taking fifteen or twenty thousand dollars of it, but no definite contract was made between them, and Mr. Brooks was under no legal obligation to take the stock, or Durant to give it to him. In October, 1867, Mr. Brooks was appointed by the No note or obligation was given for the President one of the Government directors money by Neilson, nor, so far as we can of the Union Pacific road. In December, learn from either Brooks or Neilson, was 1867, after the stock of the Credit Mobilier any account or memorandum of the transwas understood, by those familiar with the action kept by either of them. At the affairs between the Union Pacific and the time of the arrangement or settlement Credit Mibilier, to be worth very much above spoken of between Brooks and Dumore than par, Mr. Brooks applied to Dr.rant, there was nothing said about Mr. Durant, and claimed that he should have Brooks being entitled to have 50 per cent. two hundred shares of Credit Mobilier more stock by virtue of his ownership of stock. It does not appear that Mr. Brooks the hundred shares. Neither Brooks nor claimed he had any legal contract for Durant thought of any such thing. stock that he could enforce, or that Durant considered himself in any way legally bound to let him have any, but still, on account of what had been said, and the efforts of Mr. Brooks to aid him, he considered himself under obligations to satisfy Mr. Brooks in the matter.
Some time after the transfer of the shares to Neilson, Mr. Brooks called on Sidney Dillon, then the president of the Credit Mobilier, and claimed he or Neilson was entitled to fifty additional shares of the stock, by virtue of the purchase of the one hundred shares of Durant.
This was claimed by Mr. Brooks as his right by virtue of the 50 per cent. increase of the stock hereinbefore described. Mr. Dillon said he did not know how that was, but he would consult the leading stockholders, and be governed by them. Mr. Dillon, in order to justify himself in the transaction, got up a paper authorizing the issue of fifty shares of the stock to Mr. Brooks, and procured it to be signed by most of the principal shareholders. After this had been done, an entry of fifty shares was made on the stock-ledger to some person other than Neilson. The name in two places on the book has been erased, and the name of Neilson inserted. The committee are satisfied that the stock was first entered on the books in Mr. Brooks's name. Mr. Neilson soon after called for the cer
tificate for the fifty shares, and on the 29th | Mr. Alley. If, therefore, this matter rested of February, 1868, the certificate was issued wholly upon the testimony of Mr. Mcto him, and the entry on the stock-book Comb, the committee would not feel justiwas changed to Neilson. fied in finding that Mr. Brooks procured the stock by such use of his official position; but all the circumstances seem to point exactly in that direction, and we can find no other satisfactory solution of the question above propounded. Whatever claim Mr. Brooks had to stock, either legal or moral, had been adjusted and satisfied by Dr. Durant. Whether he was getting this stock for himself or to give to his son-in-law, we believe, from the circumstances attending the whole transaction, that he obtained it knowing that it was yielded to its official position and influence, and with the intent to secure his favor and influence in such positions. Mr. Brooks claims that he has had no interest in this stock whatever; that the benefit and advantage of his right to have it he gave to Mr. Neilson, his son-in-law, and that he has had all the dividends upon it. The committee are unable to find this to be the case, for in their judgment all the facts and circumstances show Mr. Brooks to be the real and substantial owner, and that Neilson's ownership is merely nominal and colorable.
Neilson procured Mr. Dillon to advance the money to pay for the stock, and at the same time delivered to Dillon $4,000 Union Pacific bonds, and fifty shares of Union Pacific stock as collateral security. These bonds and stock were a portion of dividends received at the time, as he was allowed to receive the same per centage of dividends on these fifty shares that had previously been paid on the hundred. This matter has never been adjusted between Neilson and Dillon. Brooks and Neilson both testify they never paid Dillon. Dillon thinks he has received his pay, as he has not now the collaterals in his possession. If he has been paid it is probable that it was from the collaterals in some form. The subject has never been named between Dillon and Neilson since Dillon advanced the money, and no one connected with the transaction seems able to give any further light upon it. The whole business by which these fifty shares were procured was done by Mr. Brooks. Neilson knew nothing of any right to have them, and only went for the certificate when told to do so by Mr. Brooks.
The committee find that no such right to fifty shares additional stock passed by the transfer of the hundred. And from Mr. Brooks's familiarity with the affairs of the company, the committee believe he must have known his claim to them was unfounded. The question naturally arises, How was he able to procure them? The stock at this time by the stockholders was considered worth three or four times its par value. Neilson sustained no relations to any of these people that commanded any favor, and if he could have used any influence he did not attempt it; if he had this right he was unaware of it till told by Mr. Brooks, and left the whole matter in his hands. It is clear that the shares were procured by the sole efforts of Mr. Brooks, and, as the stockholders who consented to it supposed, for the benefit of Mr. Brooks. What power had Mr. Brooks to enforce an unfounded claim, to have for $5,000, stock worth $15,000 or $20,000? Mr. McComb swears that he heard conversation between Mr. Brooks and Mr. John B. Alley, a large stockholder, and one of the executive committee, in which Mr. Brooks urged that he should have the additional fifty shares, because he was or would procure himself to be made a Government director, and also that, being a member of Congress, he would take care of the democratic side of the House."
Mr. Brooks and Mr. Alley both deny having had any such conversation, or that Mr. Brooks ever made such a statement to
In June, 1868, there was a cash dividend of $9,000 upon this one hundred and fifty shares of stock. Neilson received it, of course, as the stock was in his name; but on the same day it was paid over to Mr. Brooks, as Neilson says, to pay so much of the $10,000 advanced by Mr. Brooks to pay for the stock. This, then, repaid all but $1,000 of the loan; but Mr. Brooks continued to hold $16,000 of Union Pacific bonds, which Neilson says he gave him as collateral security, and to draw the interest upon all but $5,000. The interest upon the others, Neilson says, he was permitted to draw and retain, but at one time in his testimony he spoke of the amount he was allowed as being Christmas and New Year's presents. Neilson says that during the last summer he borrowed $14,000 of Mr. Brooks, and he now owes Mr. Brooks nearly as much as the collaterals; but, according to his testimony, Mr. Brooks for four years held $16,000 in bonds security for $1,000, and received the interest on $11,000 of the collaterals. No accounts appear to have been kept between Mr. Brooks and Neilson, and doubtless what sums he has received from Mr. Brooks, out of the dividends, were intended as presents rather than as deliveries of money belonging to him.
Mr. Brooks's efforts procured the stock; his money paid for it; all the cash dividends he has received; and he holds all the bonds, except those Dillon received, which seem to have been applied toward paying for the fifty shares. Without
further comment on the evidence, the the evidence, the committee find that the one hundred and fifty shares of stock appearing on the books of the Credit Mobilier in the name of Neilson were really the stock of Mr. Brooks, and subject to his control, and that it was so understood by both the parties. Mr. Brooks had taken such an interest in the Credit Mobilier Company, and was so connected with Dr. Durant, that he must be regarded as having full knowledge of the relations between that company and the railroad company, and of the contracts between them. He must have known the cause of the sudden increase in value of the Credit Mobilier stock, and how the large expected profits were to be made. We have already expressed our views of the propriety of a member of Congress becoming the owner of stock, possessing this knowledge.
regard to them.
The Constitution, in the fifth section of the first article, defines the power of either House as follows:
"Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of two-thirds expel a member.'
It will be observed that there is no qualification of the power, but there is an important qualification of the manner of its exercise-it must be done "with the concurrence of two-thirds."
The close analogy between this power and the power of impeachment is deserving of consideration.
The great purpose of the power of impeachment is to remove an unfit and unworthy incumbent from office, and though a judgment of impeachment may to some extent operate as punishment, that is not its principal object. Members of Congress are not subject to be impeached, but may be expelled, and the principal purpose of expulsion is not as punishment, but to remove a member whose character and conduct show that he is an unfit man to participate in the deliberations and decisions of the body, and whose presence in it tends to bring the body into contempt and disgrace.
But Mr. Brooks was not only a member of Congress, but he was a Government director of the Union Pacific Company. As such it was his duty to guard and watch over the interests of the Government in the road and to see that they were protected and preserved. To insure such faithfulness on the part of Government director, Congress wisely provided that they should not be stockholders in the road. Mr. Brooks readily saw that, though becoming a stockholder in the Credit Mobilier was not forbidden by the letter of In both cases it is a power of purgation the law, yet it was a violation of its spirit and and purification to be exercised for the essence, and therefore had the stock placed public safety, and, in the case of expulsion, in the name of his son-in-law. The trans- for the protection and character of the fer of the Oakes Ames contract to the House. The Constitution defines the trustees and the building of the road un-causes of impeachment, to wit, "treason, der that contract, from which the enormous bribery, or other high crimes and misdividends were derived, were all during demeanors." The office of the power of Mr. Brooks's official life as a Government expulsion is so much the same as that of director, must have been within his know- the power to impeach that we think it ledge, and yet passed without the slightest may be safely assumed that whatever opposition from him. The committee be- would be a good cause of impeachment lieved this could not have been done would also be a good cause of expulsion. without an entire disregard of his official obligation and duty, and that while appointed to guard the public interests in the road he joined himself with the pro-to those which might occur after appoint moters of a scheme whereby the Govern- ment to a civil office, so that a civil officer ment was to be defrauded, and shared in who had secretly committed such offense the spoil. before his appointment should not be subject upon detection and exposure to be convicted and removed from office. Every consideration of justice and sound policy would seem to require that the public interests be secured, and those chosen to be their guardians be free from the pollution of high crimes, no matter at what time that pollution had attached.
It has never been contended that the power to impeach for any of the causes enumerated was intended to be restricted
In the conclusions of fact upon the evidence, the committee are entirely agreed.
In considering what action we ought to recommend to the House upon these facts, the committee encounter a question which has been much debated: Has this House power and jurisdiction to inquire concerning offenses committed by its members prior to their election, and to punish them by censure or expulsion? The committee are unanimous upon the right of jurisdiction of this House over the cases of Mr. Ames and Mr. Brooks, upon the facts found in
If this be so in regard to other civil of ficers, under institutions which rest upon the intelligence and virtue of the people, can it well be claimed that the law-making Representative may be vile and criminal with impunity, provided the evidences of
his corruption are found to antedate his election?
fore, when we find them dealing with recognized subject of legislative authority, and while studiously qualifying and restricting the manner of its exercise, assigning no limitations to the subject-matter itself, they must be assumed to have intended to leave that to be determined according to established principles, as a high prerogative power to be exercised according to the sound discretion of the body. It was not to be apprehended that twothirds of the Representatives of the people would ever exercise this power in any capricious or arbitrary manner, or trifle with or trample upon constitutional rights.
The doctrine that the jurisdiction of the House over its members is exclusively confined to matters arising subsequent to their election, and that the body is bound to re
In the report made to the Senate by John Quincy Adams in December, 1807, upon the case of John Smith, of Ohio, the following language is used: "The power of expelling a member for misconduct results, on the principles of common sense, from the interests of the nation that the high trust of legislation shall be invested in hands. When the trust is elective, it is not to be presumed that the constituent body will commit the deposit to the keeping of worthless characters. But when a man whom his fellow-citizens have honored with their confidence on a pledge of At the same time it could not be foreseen a spotless repution, has degraded himself what necessities for self-preservation or by the commission of infamous crimes, self-purification might arise in the legislawhich become suddenly and unexpectedly | tive body. Therefore it was that they did revealed to the world, defective indeed not, and would not, undertake to limit or would be that institution which should be define the boundaries of those necessities. impotent to discard from its bosom the contagion of such a member; which should have no remedy of amputation to apply until the poison had reached the heart." The case of Smith was that of a Senator, | tain the vilest criminal as a member if his who, after his election, but not during a criminal secret was kept until his election session of the Senate, had been involved was secured, has been supposed by many in the treasonable conspiracy of Aaron to have been established and declared in Burr. Yet the reasoning is general, and the famous case of John Wilkes before alwas to antagonize some positions which luded to. A short statement of that case had been taken in the case of Marshall, will show how fallacious is that supposia Senator from Kentucky; the Senate in tion. Wilkes had been elected a member that case having, among other reasons, de- of Parliament for Middlesex, and in 1764 clined to take jurisdiction of the charge for was expelled for having published a libel the reason that the alleged offence had been on the ministry. He was again elected committed prior to the Senator's election, and again expelled for a similar offense on and was matter cognizable by the criminal the 3d of February, 1769. Being again courts of Kentucky. None of the com- elected on the 17th of February, 1769, the mentators upon the Constitution or upon commons passed the following resolution: parliamentary law assign any such limita-"That John Wilkes, Esq., having been in tion as to the time of the commission of this session of Parliament expelled this the offense, or the nature of it, which shall house was and is incapable of being elected control and limit the power of expulsion. a member to serve in this present ParliaOn the contrary they all assert that the ment." Wilkes was again elected, but the power in its very nature is a discretionary House of Commons declared the seat vaone, to be exercised of course with grave cant and ordered a new election. At this circumspection at all times, and only for election Wilkes was again elected by 1,143 good cause. Story, Kent, and Sergeant, votes, against 296 for his competitor, Lutall seem to accept and rely upon the ex-trell. position of Mr. Adams in the Smith case as sound. May, in his Parliamentary decided that by the previous action Wilkes Practice, page 59, enumerates the causes had become ineligible, and that the votes for expulsion from Parliament, but he no-given for him were void and could not be where intimates that the offense must have counted, and gave the seat to Luttrell. been committed subsequent to the election. Subsequently, in 1783, the House of ComWhen it is remembered that the framers mons declared the resolution of February of our Constitution were familiar with the 17, 1769, which had asserted the incapacity parliamentary law of England, and must of an expelled member to be re-elected have had in mind the then recent contest to the same Parliament, to be subversive of over Wilkes's case, it is impossible to con- the rights of the electors, and expunged it clude that they meant to limit the discre- from the journal. It will be seen from tion of the Houses as to the causes of ex- this concise statement of Wilkes's case pulsion. It is a received principle of con- that the question was not raised as to the struction that the Constitution is to be in-power of the house to expel a member terpreted according to the known rules of for offenses committed prior to his election; law at the time of its adoption, and there- the point decided, and afterward most
On the 15th of April, 1769, the house