only be on the second theory already mentioned, that the House of
Representatives had power to impose qualifications not mentioned in
the Constitution. The instances of additional qualifications mentioned
in the _Berger Report_ were imposed by statutes like the Test Oath
Act of 1862 or the Edmunds Act abolishing polygamy. No such statute
applies to Berger, so that he could only be barred if additional
requirements can be based on unwritten law or the will of a single
branch of the legislature. This question will be examined at length in
connection with the New York Socialists. It will be seen that there is
some authority that a man who has been convicted of crime _after_ his
election to the legislature should not be allowed to occupy his seat,
but that there is a sharp disagreement whether he should be excluded
or expelled.[487] The reason for declaring the seat vacant is that his
constituents should have the opportunity to reconsider their votes if
they were cast in ignorance of a fact which so materially affects his
fitness for the office. This argument supports the first exclusion of
Berger, but not the second, for the overwhelming vote received by him
at the second election, after his conviction, made it clear that the
electorate considered guilt under the Espionage Act no disqualification
for their representative in Congress. The Wilkes case established
the principle that such a decisive expression of opinion given with
full knowledge of the offense of sedition should not afterwards be
overridden by one branch of the legislature. Indeed, the House of
Representatives went one step farther than the House of Commons,
for Wilkes when disqualified was in prison and wholly incapable of
serving, but Berger was out on bail pending an appeal. His conviction
might be reversed and he was capable of taking his seat. An American
precedent is Matthew Lyon, who was elected to Congress by voters who
had full knowledge of his prosecution under the Sedition Act of 1798.
He was allowed to qualify, and when he was subsequently convicted and
imprisoned the House of Representatives by a close vote refused to
expel him.[488] The Wilkes and Lyon cases are opposed to the belief of
some persons that sedition is more of a disqualification than other
crimes because it involves a breach of allegiance. On the contrary,
the opinion of the voters about a conviction for a political crime is
entitled to peculiar respect. Such crimes do not usually arise from an
individual malevolence, as do murder and robbery, but from political,
economic, or ethical views which are shared by a group, for instance,
of pacifists or Socialists, and which are considered dangerous because
they clash with the will of the majority. The election of such a
criminal is in effect an approval of these views by the voters of his
district, so that the legislature by excluding or expelling him denies
expression to a political, economic, or ethical theory which is held
by a considerable mass of the electorate. The tide of public opinion
with regard to disloyal utterances is very likely to vary with time
and locality. The penalty affixed by the statute sufficiently guards
against their dangerous consequences in the emergency of war. If an
additional penalty not included in the law is imposed by one branch of
the legislature after hostilities have ceased, the result is to block
changes in public opinion, whereas the theory of democratic government
is that such changes shall find an immediate and ready expression
through the ballot.
[487] See p. 344, _infra_. _Berger Report_, p. 10, says that the power
of expulsion is limited to causes arising out of the conduct of a
member after his induction into office.
[488] 2 Hinds’ Precedents 850.
Lincoln’s principle[489] that the nation must be able to protect itself
in war against utterances which actually cause insubordination and
obstruct the raising of armies may justify some of the Espionage Act
convictions, but his policy was absolutely opposed to the annexation
of political disqualifications when the emergency had passed. Berger’s
utterances were far less dangerous in their tendency than those
expressed by many persons who took office unmolested during the Civil
War. A large number of Democrats were elected to Congress in 1864
on a platform drafted by the notorious Vallandigham, which declared
the war a failure.[490] The reasoning of the Berger committee would
have allowed the Republican majority in Congress to exclude the
Democratic minority. Apart from the fact of conviction, the conduct of
these men furnishes a close analogy to Berger, much closer than the
persons excluded under the Test Oath Act, most of whom had committed
treason, while a few others came from Border States and had definitely
identified themselves with the South. The Mexican War affords more
honorable precedents for the principle that men who oppose a war in
public discussion should afterwards be sworn in at the National Capitol
without question. Daniel Webster said at a public meeting in 1847:
“We are, in my opinion, in a most unnecessary and therefore a most
unjustifiable war.” Henry Clay asked: “Must we blindly continue the
conflict, without any visible object, or any prospect of a definite
termination?... It is the privilege of the people in their primary
assemblies, and of every private citizen, however humble, to express
an opinion in regard to the purposes for which the war should be
continued.” Charles Sumner outdid Berger in vituperation: “The Mexican
War is an enormity born of slavery.... Base in object, atrocious in
beginning, immoral in all its influences, vainly prodigal of treasure
and life; it is a war of infamy which must blot the pages of our
history.”[491] The additional element of conviction in the Berger case
should be limited in its effect to the statutory penalty and should
not overthrow the principle recognized in the cases just mentioned
and many others, that variations of public opinion with respect
to a war, especially if it is past, should be allowed to reflect
themselves in the national legislature without interference. It is
significant that all the Entente powers, except Japan, have admitted
to their legislatures without any hesitation Socialists who opposed
the war as vigorously as Berger, with the same intention to bring it
to an immediate close. Indeed, some of the Italian Socialists were
elected while serving prison sentences for their militant anti-war
activities.[492]
[489] P. 117, _supra_.
[490] J. F. Rhodes, _History of the United States_, IV, 522 ff.
[491] _Berger Hearings_, I, 712, 713. On the War of 1812, see
Beveridge’s _Marshall_, IV, c. I.
[492] _Socialist Review_, February, 1920, p. 159.
Therefore, although Berger’s statements in the _Milwaukee Leader_,
before the committee, and in Congress at the time of his exclusion,
entitle him to no personal sympathy, nevertheless the twofold denial of
his seat was, apart from all questions of legality, a great mistake and
a wrong to the voters of the fifth district of Wisconsin.
The action of the House of Representatives has, however, still more
serious and far-reaching aspects. If it had been based simply on
Berger’s conviction its effect would be limited to men who have been
actually convicted under the Espionage Act, although if such were its
ground, it would have been desirable to follow the view of the minority
member of the committee, Mr. Rodenberg, and suspend legislative action
until the final result of the prosecution had been reached by the
Circuit Court of Appeals. The great evil of the case is that the House
of Representatives and its committee assumed the power to go behind the
conviction, and expressed the view that without any conviction at all
Berger could be deprived of his seat because of his opposition to the
war. The chairman of the committee, Mr. Dallinger, said in the debate
upon the first exclusion:
The one and only issue in this case is that of Americanism.
It is whether a man who in 1911 took an oath as a member of
the House to support the Constitution of the United States and
who, when this country declared war against the Imperial German
Government, became the head and front of an organized conspiracy
to hinder, obstruct, and embarrass the Government in its fight
for existence, should be admitted to membership in this House
simply because a constituency in one of our States has seen fit
to give him a plurality of its vote.
This issue is far broader than the question of a conviction for
a violation of a particular statute by a court in Chicago, an
appeal from which may be set aside by a higher court on technical
grounds, and your committee is convinced upon all the facts and
upon all the precedents in this House that Victor L. Berger
should be excluded from membership, and that the question should
be determined by the House here and now. In our opinion the House
expects it; the men who fought for their country in the great war
expect it; the entire country expects it.
Therefore, while the precise legal ground of the Berger exclusion was
the Fourteenth Amendment, the case gave public currency to the broad
proposition that “disloyalty” during a war would bar a duly elected
representative. Thus long after a war was over, a legislature could
without any previous judicial condemnation conduct an inquiry into the
mental state of a man during the war and the tendency of his utterances
to discourage the national cause, just the kind of investigation
which is shown in my second chapter to have proved so vague and
unsatisfactory in the hands of an impartial judge and jury and which
was justified if at all only by the great necessities and dangers of
the war. Furthermore, the conduct for which Berger was convicted and
excluded was said by him and regarded by many of his opponents to be
that of the Socialist Party generally, so that if conviction were an
immaterial factor as Mr. Dallinger said, Berger’s ineligibility could
naturally be extended to any Socialist. Thus the popular impressions
created by the Berger case paved the way for one of the most
astonishing episodes in American political life.
V. _The Five Socialist Members of the New York Assembly_
Then stood there up one in the council, a Pharisee, named
Gamaliel, a doctor of the law, had in reputation among all the
people, and said unto them: “Ye men of Israel, take heed to
yourselves what ye intend to do as touching these men. Refrain
from these men and let them alone: for if this counsel or this
work be of men, it will come to nought; but if it be of God,
ye can not overthrow it; lest haply ye be found even to fight
against God.”—_The Acts of the Apostles._
On January 7, 1920, just before the second exclusion of Berger, and
while the front pages of the press were still full of the great
conspiracy which would have overthrown the nation had it not been for
the New Year’s round-up of four thousand left-wing radicals, the New
York Legislature opened its session. Among the members of the Assembly
or lower house were five Socialists, Claessens, Solomon, Waldman, De
Witt, and Orr. The Socialist Party of New York was a legally recognized
party under the Election Law,[493] so that its candidates had as much
right on the ballot as Democrats or Republicans. All these Socialists
except De Witt had previously served in the Assembly. The opposition of
the party to the war had aroused no objection to its representatives
at any time during the conflict, even when ten of them took their
seats at Albany just before the Spring Drive of 1918. And on this day,
in 1920, the five members took office without interference, swearing
that they would support the Constitution of the United States and that
of New York, and discharge the duties of their office to the best of
their ability, and that they had not influenced votes by bribe or
promise. The New York fundamental law prescribes this oath and makes it
all-sufficient:[494]
No other oath, declaration or test shall be required as a
qualification for any office of public trust.
[493] Sec. 3 (9) “The term ‘party’ means any political organization
which at the last preceding election for governor polled at least
fifteen thousand votes for governor.” The Socialist candidate in 1918
received over 120,000.
[494] N. Y. Const., Art. XIII, § 1.
They occupied their seats and entered into all the business of the day,
participating in the organization of the House and voting for Speaker
and other officers. These proceedings occupied upwards of two hours.
Suddenly the newly-elected Speaker, without notice or motion, directed
the Sergeant-at-Arms to present the five Socialist members before the
bar of the House.[495] The surprised men were paraded down into the
well of the Assembly chamber in front of the Speaker’s rostrum, in full
view of their fellow members and hundreds of guests, who crowded the
galleries and the floor to witness the ceremonies of the opening day.
There they were lined up with the Sergeant-at-Arms on guard, while the
Speaker addressed them:
You are seeking seats in this body, you who have been elected on
a platform that is absolutely inimical to the best interests of
the State of New York and of the United States.
[495] _Briefs_, and _New York Times_, January 8, 1920.
He then declared that the Socialist Party was not truly a political
party, but a subversive and unpatriotic organization, and informed them
that if the House should adopt a resolution declaring their places
vacant they would be given an opportunity to appear before a tribunal
to prove their rights to a seat in the Assembly.
A resolution[496] drafted by the Attorney General in his capacity
as counsel for the Lusk Committee was presented. This did not even
recite that the members were charged with certain offenses, but
stated facts as if already proved, an Alice-in-Wonderland performance
of “sentence first—verdict afterwards.” It declared that they were
members of the Socialist Party of America, which adhered to the
revolutionary forces of Soviet Russia and endorsed the principles of
the Communist International of Moscow, and this was pledged to the
forcible and violent overthrow of all organized governments. They
agreed to be guided by the party constitution and platform, and could
be expelled from the party for disobeying the instructions of the
Executive Committee, which might include aliens. The party by its St.
Louis platform had opposed the war, and thereby stamped itself and
all its members with an inimical attitude to the best interests of
New York and the United States. These five members had subscribed to
its principles and its aims and purposes against the government. They
had been connected with an organization convicted of a violation of
the Espionage Act. Therefore, it concluded, they were denied seats
in the Assembly “pending determination of their qualifications and
eligibility to their respective seats”; and the investigation of
their qualifications and eligibility was referred to the Committee on
Judiciary. The roll-call was then taken and the five Socialists were
called upon to vote as members. After the passage of the Resolution
they were hustled by the Sergeant-at-Arms out of the chamber, where
their seats remained vacant for the remainder of the session, to the
disfranchisement of sixty thousand voters of the City of New York.
[496] _Record_, p. 367.
In one of those magnificent decisions whereby the Supreme Court of the
United States in former years fortified the civil liberties wrested
from authority by the long struggles of the seventeenth and eighteenth
centuries and proclaimed in the American Bill of Rights, Justice
Bradley warned us that illegitimate and unconstitutional practices get
their first footing by silent approaches and slight deviations from
legal modes of procedure.[497] Since the 15th day of June, 1917, the
nation had been led on by its panic-stricken fear of adverse opinion to
abandon one national tradition after another. Every unheeded prediction
of the handful of liberals was more than fulfilled. The Espionage
Act was only to punish interference with recruiting and military
discipline. It was used against all prominent opposition to the war.
Every one agreed that freedom of speech meant the absence of previous
administrative restraint on political discussion—and the Postmaster
General was allowed to establish a whimsical censorship of the
political press and maintain it long after the last American soldier
had been demobilized. Suppression was said to be only a war measure.
The states prolonged it into peace, and the Attorney General of the
United States begged Congress to imitate them. Radical aliens were put
under control, and a similar law was demanded for radical citizens.
One by one, the right of freedom of speech, the right of assembly,
the right to petition, the right to protection against unreasonable
searches and seizures, the right against arbitrary arrest, the right
to a fair trial, the hatred of spies, the principle that guilt is
personal, the principle that punishment should bear some proportion
to the offense, had been sacrificed and ignored. Here and there a
solitary and despised protest—the rest was silence. And now the waves
of hysteria dashed against the very foundation of American life, the
right of the people to elect their own rulers. Berger was excluded
after he was convicted of crime, but these men were excluded without
any conviction, without any crime, without any trial, from the offices
which they had taken with all the qualifications and formalities
prescribed by the fundamental law. At last the leaders of thought were
awakened to the realization that a government cannot be saved, is not
worth saving, at the cost of its own principles.
[497] Boyd _v._ U. S., 116 U. S. 616, 635 (1885).
The successor of Jefferson had taken no step to stop the encroachments
on freedom of speech, had signed his name to both Espionage Acts,
had allowed his officers without a reproach to censor and raid and
arrest as they chose. It was reserved for the Republican presidential
candidate at the election of 1916 to become the champion of Anglo-Saxon
liberties. Charles Evans Hughes, leader of the American bar, former
Governor of New York, former Justice of the Supreme Court, within
forty-eight hours of the Albany imbroglio, wrote Speaker Sweet that it
was absolutely opposed to the fundamental principles of our government
for a majority to undertake to deny representation to the minority
through the men who had been elected by a ballot lawfully cast.[498]
If there was anything against these men as individuals, if they
were deemed to be guilty of criminal offenses, they should have
been charged accordingly. But I understand that the action is
not directed against these five elected members as individuals
but that the proceeding is virtually an attempt to indict a
political party and to deny it representation in the Legislature.
This is not, in my judgment, American government.
Are Socialists unconvicted of crime, to be denied the ballot? If
Socialists are permitted to vote, are they not permitted to vote
for their own candidates? If their candidates are elected and
are men against whom, as individuals, charges of disqualifying
offenses cannot be laid, are they not entitled to their seats?...
I understand that it is said that the Socialists constitute a
combination to overthrow the Government. The answer is plain. If
public officers or private citizens have any evidence that any
individuals, or group of individuals, are plotting revolution and
seeking by violent measures to change our Government, let the
evidence be laid before the proper authorities and swift action
be taken for the protection of the community. Let every resource
of inquiry, of pursuit, of prosecution be employed to ferret
out and punish the guilty according to our laws. But I count
it a most serious mistake to proceed, not against individuals
charged with violation of law, but against masses of our citizens
combined for political action, by denying them the only resource
of peaceful government; that is, action by the ballot box and
through duly elected representatives in legislative bodies.
[498] _New York Times_, January 10, 1920; Sweet’s reply, January 11.
Speaker Sweet, after consultation with the Lusk Committee, replied
that the Socialists were not expelled, but merely subjected to an
investigation by the body which was charged by the Constitution with
the authority to inquire into the fitness of those who seek seats in
the Assembly. The question presented squarely was whether the different
organizations which they sought to represent in the legislature
advocated methods and employed tactics to overthrow our form of
government, which would justify their exclusion from participating
in legislative proceedings. He thus characterized the proceeding, as
did the Attorney General of New York,[499] not as an inquiry into the
personal unfitness of these men or into the overt acts of any one, but
into the opinions and words of whole groups. Finally he stated that
criticism of the Assembly action without full knowledge of the facts
gave aid and comfort to those elements of our society which seek the
destruction of our institutions.
[499] _Ibid._, January 9.
Nevertheless, criticism poured in, not only from Socialists and labor
unions, but from large conservative groups like the National Security
League. The New York Board of Aldermen refused to follow the example of
the Assembly as to its Socialist members. For once the _Tribune_ and
the _Review_ stood shoulder to shoulder with the _New Republic_ and
the _Nation_, and outdid them in the vigor of their condemnation. The
Bar Association of the City of New York adopted resolutions offered by
Governor Hughes, opposing any attempt to exclude legislators because
of their affiliation with any political party, when they are seeking
by constitutional and legal methods to bring about any change in
the Constitution and laws. The Association appointed a committee of
non-Socialists to appear before the Judiciary Committee of the Assembly
and safeguard the principles of representative government.[500] No
action could have done more to strengthen the confidence of workingmen
in the public spirit of the bar.
[500] _New York Post_, January 14.
The Assembly paid no more attention to these protests than the House
of Commons to the remonstrances of Burke and the voters of England on
behalf of Wilkes. The Assembly was past saving, but the nation was
saved. The American people, long bedrugged by propaganda, were shaken
out of their nightmare of revolution. The red terror became ridiculous
on the lips of Speaker Sweet. A legislature trembling before five
men—the long lost American sense of humor revived and people began to
laugh. That broke the spell. The light of day beat in not only upon the
Assembly, but upon Congress and the Department of Justice. Never again
did the hysteria of the past year return. The raids of January 2d were
flood-tide, and with Governor Hughes’ letter on the 9th, the ebb set
in. Then followed the opposition of the conservative press and sober
speakers to the pending federal sedition bills, the disclosures in the
Colyer trial of the illegal character of the New Year’s round-up, the
decision of Secretary Wilson legalizing the Communist Labor Party, the
wholesale cancellation of deportation warrants. The American people owe
a lasting debt of gratitude to the New York Assembly.
But there was no return to sanity in Albany. On January 20th the
investigation of the five members began before the Judiciary Committee,
which was appointed by the Speaker who had taken such a definite stand
against them. At the outset the Bar Association committee appeared,
with Mr. Hughes as its chairman, but was not allowed to participate
in the proceedings. Before withdrawing it filed a brief and these
recommendations:[501]
That the Judiciary Committee at once report to the Assembly
that there is no question properly before the Judiciary
Committee of any disqualification on the part of these members;
that no charges against these members of any constitutional
disqualification, or of any misconduct in office or of any
violation of law on their part have been properly made, that
the members under suspension should at once be restored to
the privileges of their seats and that if it be desired to
present any charges against them of any violation of law, such
charges should be properly formulated, and that until such
charges, properly laid, have been established by proof, after
due opportunity to be heard, these members shall enjoy all the
privileges of their seats in recognition of their own rights and
of the rights of their constituencies.
[501] _Record_, p. 6; _Socialist Brief_, p. 7.
This position is conclusively established by the Bar Association in
its brief.[502] After the respondents had taken the constitutional
oath of office, and in the absence of any personal misconduct during
their term, they became entitled to participate in all proceedings of
the Assembly until they were actually ousted. This has always been the
practice in Congress, even on charges of bribery; for instance, Senator
Lorimer participated in all the proceedings of the Senate until he was
finally disqualified, and Senator Truman H. Newberry of Michigan,
who has been actually convicted of corrupt practices, still retains
his seat and will continue to do so even during any investigation
that may be made of his conduct by the Senate. The issue of free
speech, however, is less concerned with the unwarranted method of the
proceedings against the five members than with the question whether
there was any legal cause to deprive them of their seats by any method
whatever.
[502] Pages 8–20.
The opening clause of the New York Constitution provides that no member
of this state shall be disfranchised unless by the law of the land,
or the judgment of his peers. Like the United States Constitution,
it makes each House “the judge of the elections, returns and
qualifications of its own members,”[503] but it imposes the restriction
already mentioned that no declaration, test or oath shall be imposed
except that specified. Certain offices are a disqualification,[504] but
even the right to vote is not a requisite for eligibility.[505] The
power to expel is conferred by statute.[506] The power to suspend is
not given by Constitution or statute. Although this was an inquiry into
qualifications and not an expulsion, yet since the method is immaterial
it is desirable to review the cases of both exclusion and expulsion
to determine whether a Legislature, especially in the absence of any
disqualifying statute, can lawfully unseat a member for opinions and
affiliations without overt acts.
[503] Art. III, § 10.
[504] Art. III, § 8.
[505] Barker _v._ People, 3 Cow. 686, 703 (1824); Cooley,
_Constitutional Limitations_, 7th ed., 894 note.
[506] Legislative Law, § 3. “Each house has the power to expel any of
its members after the report of a committee to inquire into the charges
against him shall have been made.”
The analysis of the law on this question is peculiarly difficult.
The judicial precedents are necessarily few and indirect in their
bearing, for the courts have uniformly denied that they have any power
to review either legislative expulsions or legislative decisions on
the qualifications of members.[507] The house in making decisions
on qualifications and in other election cases acts in a judicial
capacity, in spite of the doctrine of the separation of powers, and
such controversies do not fall within the general judicial power vested
in the courts, since the constitutions expressly confer jurisdiction
upon the legislative chamber in question. However, judges have
sometimes been called upon to discuss whether anybody has power to add
to the constitutional requirements for eligibility. Justice Story,
in denying that the states can impose additional tests for a member
of Congress, for example, that he shall reside in the district which
elects him, writes:[508]
It would seem but fair reasoning, upon the plainest principles of
interpretation, that when the Constitution established certain
qualifications as necessary for office, it meant to exclude
all others as prerequisites. From the very nature of such a
provision, the affirmation of these qualifications would seem to
imply a negative of all others.
[507] Hiss _v._ Bartlett, 3 Gray (Mass.) 468 (1855); French _v._
Senate, 146 Cal. 604 (1905); P. _ex rel._ Hatzel _v._ Hall, 80 N. Y.
117, 122 (1880); P. _v._ Mahaney, 13 Mich. 482, 492 (1865).
[508] I Story on the Constitution, § 625; Congress has always refused
to recognize these state limitations as valid. 1 Hinds’ Prec. 381, 384,
387.
There is much force in his position, that the power to judge
“qualifications” means only constitutional qualifications, but it does
present difficulties, especially when the constitutional requirements
for eligibility are so meagerly stated as in New York. Can insanity be
made a bar, or is it only a ground for expulsion after admission? Were
women eligible to Congress, before they were allowed to vote, inasmuch
as they were not specifically excluded? Or were they under a common law
ineligibility, which had to be read into the Constitution?[509] At all
events, some judges have been willing to admit that in some instances
the requirements of the Constitution may be added to, but only within
narrow limits. (1) Additional qualifications can be imposed only by
law; that is, by a statute enacted by both houses of the legislature,
and signed by the governor. The body which judges the qualifications
of its members cannot itself legally create new qualifications any more
than the Supreme Court of the United States can legally create new
income taxes. One house cannot make the law, and eligibility is fixed
by law.[510] (2) The highest court of the state of New York has decided
that the legislature under its power to punish crimes can pass a valid
statute, making conviction for duelling a disqualification for the
legislature, but said through Chancellor Sanford:[511]
Eligibility ... belongs equally, to all persons whomsoever, not
excluded by the constitution. I therefore conceive it to be
entirely clear, that the legislature can not establish arbitrary
exclusions from office, or any general regulation requiring
qualifications, which the constitution has not required. If, for
example, it should be enacted by law, that all physicians, or all
persons of a particular religious sect, should be ineligible to
public trusts; ... any such regulation, would be an infringement
of the constitution; and it would be so, because, should it
prevail, it would be in effect, an alteration of the constitution
itself.... _There may be an exclusion by law, in punishment for
crimes; but in no other manner, and for no other cause._
[509] “Eligibility of Women for Public Office,” 33 _Harv. L. Rev._ 295
(1919).
[510] Barker _v._ People, 3 Cow. 686, 707 (1824); P. _ex rel._ Bush
_v._ Thornton, 25 Hun 456, 463 (1881).
[511] Barker _v._ People, 3 Cow. 686, 703, 704, 707. The italics are
mine.
(3) In New York and other states which have constitutions forbidding
any other “oath, declaration, or test” except that specified, this
prohibits not merely new forms of test oaths, but all arbitrary
requirements as a qualification for voting or office-holding,
particularly those based on opinions and party affiliations, and it
makes no difference that these requirements are imposed by statute.
Thus, the New York Court of Appeals has held a statute unconstitutional
which required voters to swear that they had never borne arms against
the United States, given aid to the enemy, deserted, or evaded the
draft.[512] It has also invalidated a statute which made all persons
except members of the two leading political parties ineligible for the
Albany police commission. Judge O’Brien declared:[513]
The legislature of this state has no power to enact a law which
proscribes any class of citizens as ineligible to hold public
office on account of political belief or party affiliations.
[512] Green _v._ Shumway, 39 N. Y. 418 (1868); Goetcheus _v._
Matthewson, 61 N. Y. 420 (1875). Similar disqualifications for
preaching, teaching, or practising law have been declared invalid under
the U. S. Constitution. Cummings _v._ Missouri, 4 Wall. 277 (1866); _Ex
parte_ Garland, 4 Wall. 333.
[513] Rathbone _v._ Wirth, 150 N. Y. 459, 485 (1896), and see cases
cited from other states. (Some of the judges rested the invalidity
of the statute on other clauses of the N. Y. Constitution.) The
legislature may of course impose requirements which relate directly to
fitness for the particular office, _e.g._, that only physicians are
eligible to the board of health. Rogers _v._ Common Council, 123 N. Y.
173, 184 (1890).
Clearly, all these cases render the unseating of the five Socialists
illegal. They were not made ineligible by any law, but by the fiat of
the Assembly alone. They had not been convicted of crime, and they were
guilty of no crime which was a statutory bar to office. And they were
proscribed for their political beliefs and party affiliations.
Let us now turn to the legislative precedents and see how far they
agree with the judicial discussion. At the outset, the reader must be
warned that these precedents rarely afford a satisfactory formulation
of the principle on which the house acted, which can be automatically
applied in subsequent cases after the manner of court decisions. A
legislature is not by nature a judicial body. Its members are chosen
and organized for carrying out policies, and not, like judges, for the
sole purpose of thinking together. When they are called upon to perform
judicial duties in trying impeachments and charges of bribery, the most
earnest efforts to attain impartiality hardly prevent them from being
swayed by party motives, and their debates lack the training and the
restraints which mold the words of judges. The Lorimer case brought out
these qualities of a legislative trial, and a few years ago the New
York Senate refused to expel two members for corrupt practices, who
were subsequently tried and convicted for the same offense. Moreover,
the basis of a legislative discussion is often obscure because of the
number of persons who join in the debate. Sometimes the only certain
fact is that the member was or was not unseated. It is significant that
the Wilkes case led Parliament to delegate the trial of controverted
elections to a tribunal of judges.[514] The Berger and Socialist cases
might well lead us to consider establishing a preliminary investigation
by judges instead of by a legislative committee and thus obtaining the
benefit of a trained judicial opinion as the basis of the action of the
house.[515]
[514] May, _Parliamentary Practice_, 12 ed., 581.
[515] This plan is already in force in Pennsylvania. _Re_ McNeill,
111 Pa. St. 235 (1885). The legislature could not completely delegate
the decision of such contests. S. _v._ Gilmore, 20 Kan. 551 (1878);
Dalton _v._ S. _ex rel._ Richardson, 43 Oh. St. 652, 680 (1885). The
Presidential Electoral Commission of 1877 affords an analogy.
The English legislative precedents show that Parliament has no control
over the eligibility of candidates but simply administers the laws
defining their qualifications. One house of Parliament cannot create
a disability unknown to the law. This was established by the Wilkes
case and by that of Charles Bradlaugh, who was at first debarred and
expelled from the House of Commons on the ground that as an agnostic
he could not conscientiously take the oath, but was eventually on
re-election sworn in without objection, and the resolution debarring
him was expunged from the journals. On the other hand, each house has
power to suspend or expel by way of punishment. Members have been
suspended for disregarding the authority of the chair or obstructing
business. They have been expelled for crimes and other disgraceful acts
which render them unfit for a seat and which if not so punished would
bring discredit on Parliament. Lord Campbell thinks even an offense
before election is cause for expulsion if conviction follows election,
for there might be a presumption that his constituents would not have
elected a person guilty of such misconduct, and it might be fair to
give them an opportunity of determining whether they would still have
him for a representative. Expulsion is not a disqualification if the
member be re-elected. Except for Wilkes and Bradlaugh, no person has
been expelled in modern times for conduct involving the expression of
opinions, and both these expulsions were officially declared to be
wrong and expunged.[516]
[516] May, _op. cit._, 59–62, 153–156, 187. He does not discuss the
question whether a member can be expelled for an offense committed
before his election. I Story on the Constitution, § 838, says the
power is not limited to offenses during the particular session. Lord
Campbell’s opinion is in his _Life of Lord Camden, Lord Chancellors_,
(1846 ed.) V, 276.
The Congressional precedents also afford no support for the contention
of the New York Assembly that duly elected legislators can be
disqualified or expelled for disloyal opinions which have not been
made a bar by law. There is no authority that a house will go into
the question of the moral fitness of a member to occupy a seat. Where
would such an inquiry stop, and what standards could be fixed? Each
house undoubtedly has the right to expel a member for actual crimes
committed after his induction to office, but it is settled that it
cannot punish him for an offense committed before his election, and
even Lord Campbell’s view of the effect of conviction after election is
opposed by the case already mentioned of Matthew Lyon, imprisoned under
the Sedition Act of 1798. This disposes of the half-hearted contention
that the New York Socialists had violated the Espionage Act during the
war.[517]
[517] _Berger Report_, 10; opinion by Speaker Cannon in 3 Hinds’ Prec.
1157; 2 _ibid._ 829–860, 1 _ibid._ 521, for cases. But see arguments
contra, 1 _ibid._ 437, 524. Apparently no one has been expelled from
Congress for crimes, except those against the Government, but several
men have resigned. There is some doubt whether a member can be expelled
for crimes unrelated to his office. See the majority and minority
reports in the Roberts case. 1 Hinds’ Prec. 523. The House refused to
expel Herbert of California in 1857, who was charged with homicide, and
Harris of Maryland in 1865, though convicted of aiding the rebellion
(probably before election), and Cannon of Utah in 1875, though a
polygamist. 1 Hinds’ Prec. 500. For the Espionage Act charge, see
_Assembly Outline_, 75. No evidence is given.
At the outbreak of the Civil War several Southern Senators and
Representatives were expelled for their treasonable conduct in
remaining permanently absent from their Congressional duties and
either taking up arms against the government or entering the
Confederate lines and actively participating in the rebellion.[518]
On the other hand, both houses refused to expel members from border
states who had committed no overt acts, but had vigorously opposed by
speeches the prosecution of the war by the North.[519] Among these
were Representative Long of Ohio, who declared himself in favor of
recognizing the independence of the Confederacy, Representative Harris
of Maryland, who said, “I hope you will never subjugate the South,”
and Senator Powell of Kentucky. Powell presided at a large Southern
States’ Rights convention in Kentucky in June, 1861, which urged the
recall of the Northern armies and the recognition of the Confederacy
and endorsed the action of the Governor in refusing to furnish troops
to subjugate the South and forbidding both sides to invade Kentucky.
In September, 1861, he was a delegate to a second convention, which
adopted resolutions drafted by a committee of which he was a member,
proclaiming the neutrality of Kentucky and refusing aid by money,
taxation, or loans to “a cause so hopeless as the military subjugation
of the Confederate States.” The Committee on the Judiciary reported
against expulsion, and its chairman, Senator Trumbull of Illinois,
whose loyalty no man can question, stated in debate that though the
resolutions were downright opposition to the constituted authorities of
the government and wholly unjustifiable, and though the neutrality of
Kentucky did favor the cause of the rebellion, yet when that neutrality
was abandoned Powell had discharged his duties to the government at
Washington; “and no man is to be expelled from this body because he
disagrees with others in opinion.” The resolution of expulsion was
overwhelmingly defeated.
[518] 2 Hinds’ Prec. 812, 813, 822–826. See also the expulsion of
Senator Blount in 1797 for trying to alienate the Creek Indians from
the resident Government officials, 2 _ibid._ 813.
[519] 2 _ibid._ 803, 827.
The Assembly relies on the case of Senator Bright of Indiana, who was
expelled by a bare two-thirds for writing a letter to Jefferson Davis,
bringing a military invention to his attention. It is true that some
language used in the debate about other utterances of Bright implied
a power to expel merely for disloyal opinions, but his conduct was
treasonable aid to the enemy if the requisite intent existed, and
Senator Trumbull in moving his expulsion based it squarely on the
ground of treason.[520] Therefore, this and all the other expulsion
cases draw the line between overt acts identifying the legislator with
the enemy and opposition to war by words. A legislator can be expelled
only for criminal or otherwise disgraceful conduct subsequent to his
election, and not for disloyal language or for affiliations with
political groups, even if like the Kentucky neutrals they oppose the
government without, however, joining its enemies.
[520] 2 _ibid._ 821; see extracts from debates omitted by Hinds in
_Assembly Outline_, 83, and _Socialist Brief_, 110.
The Congressional precedents on the unseating of members because they
are not qualified are still more important, since the action of the
New York Assembly, though often called an expulsion, was really an
adjudication of ineligibility and not an expulsion for misconduct.
A review of these precedents reveals two sharply conflicting views.
The first accords with Story’s opinion that no addition can be made
to the constitutional requirements.[521] The Constitution gives the
people the inalienable right to choose any one they please who has
the qualifications named. An insane man cannot take his seat if he
lacks the mental capacity to take the constitutional oath. Bribery and
corrupt practices connected with the election prevent him from being
duly elected, for fraud vitiates all transactions, and an unseating on
this ground, as in the Lorimer case,[522] is not a disqualification
for crime, but a decision that no valid election has taken place.
Crime as such is no bar, except treason by virtue of the Fourteenth
Amendment. Representative government relies on the judgment of the
people to pick fit men, not on the wisdom of a House of Congress or
any other select group. In the improbable event that a district should
elect a convicted murderer, he can act so long as he is at large. If
the general welfare requires that this be made impossible, then the
Constitution should be amended. A power in the legislature to add new
qualifications is equivalent to a power to change those prescribed by
the fundamental law. If it can add crime or disloyal acts as bars, it
can add profiteering as well. There is no line to be drawn, once it is
allowed to cross the constitutional limits. It can turn our democracy
into an oligarchy by imposing high property qualifications, or into a
dictatorship of the proletariat by declaring ineligible all persons
deriving income from rents and invested capital.
[521] The fullest discussion of both views is in the minority report
in the Roberts case, 1 Hinds’ Prec. 518 (unseated). See also Stark, 1
_ibid._ 433 (seated); Smith _v._ Brown, 1 _ibid._ 441 (unseated); McKee
_v._ Young, 1 _ibid._ 451 (unseated); Thomas, 1 _ibid._ 466 (unseated);
Maxwell _v._ Cannon, 1 _ibid._ 493 (seated); Campbell _v._ Cannon,
1 _ibid._ 500 (unseated); Smoot, 1 _ibid._ 561 (seated); discussion
by House Committee, 1 _ibid._ 591; _Berger Hearings and Report_
(unseated). Among those presenting the first view are Littlefield of
Maine, 1 _ibid._ 537; Senator Knox, 1 _ibid._ 587; Senator Reverdy
Johnson, 1 _ibid._ 489.
[522] Webb and Pierce, Senate Election Cases, 1002. But see P. _ex
rel._ Bush _v._ Thornton, 25 Hun 456 (1881).
The second view allows some additions to be made to the constitutional
qualifications. Otherwise, the great leaders of the Confederacy might
have been seated before the Fourteenth Amendment, or Brigham Young
could have been elected and his forty wives have occupied the gallery
to see him sworn in. Is a man to be brought from a felon’s cell to
the floor of the Senate? Suppose a representative just before he is
sworn in should create some outrageous disturbance in the House; if
he cannot be disqualified, will it be necessary to go through the
rigmarole of first swearing him in, and then expelling him? The duty of
each chamber to preserve the nation and carry on business is said not
to be sufficiently safeguarded if the constitutional requirements are
exclusive of all others.
The view forbidding all additions seems to me the sounder in the
United States Government, and still more obligatory under the New York
Constitution, with its clause against other tests. It must be conceded,
nevertheless, that notwithstanding the ability of the men who have
taken this position, it has frequently been rejected in Congressional
practice, and is also opposed to the opinion of the New York Court,
rendered however before the adoption of the test clause just mentioned,
that conviction for crime could be made a bar by statute.[523] Yet
even if the second view be accepted, the range of new qualifications
has been so closely limited by Congress that neither of the two views
furnishes the slightest support for the proceedings of the New York
Assembly.
[523] See p. 342, _supra_.
In the first place, the Congressional precedents agree with the Wilkes
case and the judicial decisions that qualifications must be established
by law, and that the resolution of one house of Congress cannot make
law. When Representative Connor of Texas was charged with having
cruelly whipped negro soldiers under his command and bribing them not
to testify against him before a military court, Garfield asked if
anything in the Constitution and laws of the United States forbade that
a moral monster should be elected to Congress. Connor was sworn.[524]
The House also refused to inquire into a charge of seduction, and
the Senate into one of embezzlement.[525] All the exclusions which
have occurred were for offenses which had expressly been made a
disqualification by Act of Congress.[526]
[524] Grafton _v._ Connor, 1 Hinds’ Prec. 488.
[525] Acklen, 1 _ibid._ 489; Roach, 1 _ibid._ 570.
[526] Besides the statutes mentioned, Act of February 26, 1853, c. 81,
10 Stat. at L. 171, disqualifies any member convicted of receiving
bribes for discharging an official function. B. F. Whittemore of
South Carolina resigned to avoid expulsion for sale of West Point
appointments, was at once re-elected, and disqualified. 1 Hinds’ Prec.
487. The case cannot be supported. See 1 _ibid._ 540 for a vigorous
attack on this case.
The most important of these statutes was enacted in July, 1862. In
January of that year the Senate had decided that Stark of Oregon was
entitled to take his seat, although he had made disloyal speeches.
Senator Harris of New York, the Chairman of the Judiciary Committee,
denied in debate that the Senate ought to be the ultimate judge of a
man’s fitness or was competent to reject him upon any view it might
take of his moral, intellectual, or political capacity.[527] It was
not until the passage of the Test Oath Act,[528] obliging men to swear
before admission to office that they had never borne arms against the
United States, given aid, countenance, counsel, or encouragement to the
enemy, or yielded a voluntary support to any pretended government, that
persons were excluded for disloyal conduct. Such an Act is of course
impossible under the New York Constitutional prohibition of additional
oaths and tests. And it is noteworthy that although the terms of this
statute included much more than treason, the ironclad oath was not
used to bar members for personal disloyalty or passive sympathy with
the rebellion, or speeches denouncing the war as an abolition war and
opposing any further aid toward its prosecution.[529] One man was
excluded who had sent food to a Confederate camp, brought a gun, and
pointed out a house where a Union soldier was hiding, telling the
Southerners to go and get him, a clear case of treason.[530] The most
extreme case was John Young Brown, who was disqualified for a letter
to the press, saying that Kentucky would not furnish a man or a dollar
to aid Lincoln in his unholy war against the South, that an invading
Northern army would be resisted to the death, and that any Kentuckian
joining it ought to be and would be shot down before he left the
state.[531] This is the only instance of disqualification from Congress
for utterances without overt acts. Thus, even in the heat of the Civil
War, disloyalty was not a bar to an elected member of Congress, until
it was expressly made so by a statute, and not then unless it was
evidenced by actual aid to the enemy or words of acute virulence.
[527] 1 Hinds’ Prec. 433. _The Assembly Outline_, 82, erroneously cites
this case as authority for the exclusion of the Socialists; besides
that of Smoot, who was also seated. The only other authorities cited
are the case of Roberts, a polygamist disqualified by statute, and
Bright expelled for treason, and a Virginia vote of 1619 excluding
men who denied they were subject to the government of Virginia. The
Assembly Brief cites several cases under the Test Oath Act; and several
instances of expulsion. The principles of these cases are discussed in
the text.
[528] Act of July 2, 1862, c. 128, 12 Stat, at L. 502.
[529] Kentucky Members, 1 Hinds’ Prec., 441; Symes _v._ Trimble, 1
_ibid._ 459.
[530] McKee _v._ Young, Rowell Dig. Election Cases H. R., 222. Hinds
does not state the facts fully. Senator Thomas of Maryland was
disqualified for aiding his son to enter the Confederate army. 1 Hinds’
Prec. 466.
[531] Smith _v._ Brown, 1 Hinds’ Prec. 444.
Some doubt was cast upon the validity of the Test Oath Act, and in
1868 it was virtually superseded by section three of the Fourteenth
Amendment,[532] on which rightly or wrongly the exclusion of Berger was
based.
[532] P. 323, _supra_. See Reverdy Johnson in 1 Hinds’ Prec. 469.
The Church of Jesus Christ of Latter-day Saints is a much more closely
knit and powerful organization than the Socialist Party and instead
of being legalized by statute has frequently been made the object of
adverse legislation. Consequently, the decisions upon the admission
of Mormons to Congress are much in point. The constitutional question
was not squarely raised while Utah was still a territory because
each house was held to have complete control over the eligibility of
Delegates, who were distinguished from Representatives. Nevertheless,
the decisions at that time make the distinction which I have emphasized
between overt acts and mere opinions.[533] In 1868 the election of
Hooper was contested on the ground that he represented the institution
of polygamy and a community hostile to the other portions of the United
States and was disqualified by a secret oath. The House Committee
reported that Mormonism was antagonistic to the United States but had
never organized rebellion or sedition against the supreme authority
of the Union, or committed treason by any overt act. Hooper was
accordingly seated. On the other hand, a Delegate who was himself a
polygamist was unseated. Even in this case a strong minority protested
against the assumption by the House of the arbitrary power to inquire
into the moral fitness of candidates, and asked whether if it was a
bar for a Delegate to live with four women who were married to him, it
would also be a bar if three of them were not.
[533] McGrorty _v._ Hooper, 1 Hinds’ Prec. 490; Maxwell _v._ Cannon, 1
_ibid._ 493; Campbell _v._ Cannon, 1 _ibid._ 500.
After the admission of Utah as a state, the issue became acute. The
Edmunds Act of 1882 had disqualified any polygamist, whether convicted
or not, from office under the United States.[534] Brigham H. Roberts,
a convicted polygamist, who was still living with three wives, was
elected Representative in 1898, and was finally unseated after a
thorough discussion from both points of view of the question whether
Congress or the House could add qualifications to those specified in
the Constitution.[535] The majority relied to a large extent on his
ineligibility under the Edmunds Act, so that the case supports the
principle already stated, that if any disqualification can be added to
the Constitution, it must be created by law. The minority in an opinion
by Representative Littlefield of Maine, and De Armond of Missouri,
which has been approved by Chief Justice Cullen of New York,[536]
contended that Congress could not add any qualification to the
Constitution, especially if it did not satisfy the test of Chancellor
Sanford[537] that it must be based upon a conviction of crime. The
minority declared that Roberts should not be disqualified but expelled,
not for any offense prior to his election but because he was continuing
to commit the crime of polygamy. Inasmuch as the vote for unseating him
was more than two-thirds, the method of removal became academic. At
all events the decision is no authority for the case of the New York
Socialists, because it rested upon a statute and upon an alleged breach
of the compact which Utah had made on entering the Union to abandon
polygamy forever, and furthermore it involved overt criminal acts and
not opinions or party affiliations.
[534] Act, March 22, 1882, c. 47, § 8; 22 Stat. at L. 31. This was held
in the Roberts case to apply to members of Congress.
[535] 1 Hinds’ Prec. 518–560.
[536] Dissenting opinion, P. _v._ Ahearn, 196 N. Y. 221, 252 (1909):
“No lawyer can read the clear and forceful minority report of Messrs.
Littlefield and De Armond without at least doubting the correctness of
this decision.”
[537] P. 342, _supra_.
This distinction is clearly brought out by the refusal of the Senate
in 1904 to exclude or expel Reed Smoot.[538] He was not himself a
polygamist or otherwise disqualified by statute, and had personally
opposed polygamy in Utah, but he was one of the twelve apostles who
together with the first president ruled over the Mormon hierarchy, and
as a body encouraged the continuance of polygamous cohabitation (at
least in long-standing marriages) and controlled the political affairs
of Utah. According to the majority of the Committee, Mr. Smoot came
there, “not as the accredited representative of the State of Utah,
but as the choice of the hierarchy which controls the church and has
usurped the functions of the State.”[539] Nevertheless, the Senate
refused to look beyond the question of his personal guilt of crime or
disbar him for the political and ethical purposes of the organization
to which he belonged. A powerful argument for the prevailing view was
made in debate by Senator Knox of Pennsylvania, who pointed out that
the Constitutional disqualifications do not in any way involve the
moral qualities of a man. They relate to facts outside the realm of
ethical consideration and are requirements of fact easily established.
As to all matters affecting a man’s moral or mental fitness the
states are to be the judges, in the first instance, subject to the
power of the Senate to reverse their judgment by a two-thirds vote of
expulsion when an offense or offensive status extends into the period
of service; and such a question can only be raised after a Senator has
taken his seat. It is hardly proper to adopt a rule of constitutional
construction based upon the theory that states will send criminals
or idiots to the Senate. This position limits the effect of the Test
Oath cases and relegates them to the status of consequences of the
extraordinary situation following the Civil War.
[538] 1 Hinds’ Prec. 561–590. _Socialist Brief_, 116. The majority of
the committee recommended disqualification but the Senate adopted the
minority view, which did not however dispute the political power of the
hierarchy or its attitude toward polygamy.
[539] 1 _ibid._ 587.
And finally the precedents in the New York Assembly itself are
inconsistent with its recent action.[540] In 1906 it refused to
disqualify a member for fraudulent practices in connection with a
nomination. In 1917 it refused to oust another on the ground that
he was not a resident of the district which he had been elected to
represent. And in 1918 Lucas E. Decker, who was found to have failed
to register for the selective draft and lied to excuse himself, was
not excluded. The committee reported that the circumstances were
matters of public record while Decker was a candidate for election,
and that “in order to remove a member of the Assembly from office,
under the Constitution, some question involving the election or returns
is necessary before the Assembly has jurisdiction in the premises,
or further, that the person so elected must be entirely disqualified
under the Constitution, or by his conduct in the house must disqualify
himself.” The committee’s report was adopted and Decker declared
entitled to his seat by a unanimous vote.
[540] _Socialist Brief_, 104–109.
Consequently, the principle is indubitably established, by judicial and
legislative precedents, that the power to add qualifications to those
fixed by the Constitution, if it exist at all, extends at the most
to overt acts which have been made a bar by statute. And in New York
State in view of the test clause in the Constitution and the decision
of Chancellor Sanford, it is doubtful if even a statute could impose
any other bar than conviction for crime. No such statute existed in the
case of the New York Socialists. They were convicted of no crime, they
were not even charged with any crime except a vague and unsubstantiated
allegation of violation of the Espionage Act.[541] The action of the
Assembly must be characterized as a flagrant usurpation of power, only
to be found in that government of which Senator Root,[542] who had
good reason to know, said that for forty years it had been about as
representative and responsible as the government of Venezuela.
[541] _Assembly Outline_, 75. The subsequent Assembly Brief reached
me too late for extended comment upon its argument (64–76, 195) that
the Constitution, by requiring an oath to support it, also impliedly
requires an “inner state of mind” and so makes “disloyalty” or
membership in a “disloyal organization” a disqualification for taking
the oath, which the Assembly is authorized to investigate. The dangers
of such a vague disqualification are obvious and no precedent exists
for this doctrine. Even in the exasperations and exacerbations of
politics after the Civil War Congress only refused the Test Oath to
men found to have committed _in the past_ the very acts which the
oath denied. When the Constitution requires a solemn oath _as to
the future_, it leaves the guarantee of its performance, not to the
speculations of other human beings, but to the strongest sanctions of
conscience and religion. _Cf._ note 551.
[542] Quoted in 40 Rep. Am. Bar. Assn. 365 (1915).
The conduct of the investigation was thoroughly in harmony with its
illegality. It was not based on any definite charges nor was it even
limited to the accusations in the Resolution of January 7th. The affair
had all the characteristics of an accumulative crime as described
by Burke in the Wilkes case.[543] Whenever the Attorney General or
his associate counsel thought of some new offense with which the
Socialist Party could be taxed, it was lugged into the case and made a
fresh reason for exclusion. The Resolution was construed as a roving
commission to the Judiciary Committee, to find as many objectionable
opinions of the Socialist Party as possible, on the theory that
twenty-seven bad grounds[544] for exclusion might be rolled together
and make one good ground. Inasmuch as there was no demarcation of
counts in this rag-bag and ever-reopened indictment, no single fact had
to be proved to the satisfaction of a majority of the Assembly. One
member could vote to exclude the five Socialists because he thought
they were as guilty under the Espionage Act as the three men who were
convicted at Syracuse;[545] another because he considered Socialism
threatened the family; a third to protect the church; a fourth, because
Socialists sought to set up a Soviet in the United States; some one
else, because he disliked the vote of Claessens against the military
training of boys. Others might object on the ground that the party
fostered the claims of conscientious objectors or worked for the repeal
of the draft or opposed the conscription of labor or voted against
large military appropriations. The range was large and every member
could find a reason of his own. It was the Wilkes case over again:[546]
The very enumeration of so many grounds of expulsion implied
their separate weakness and insufficiency; while it was designed
to attract the support of members, influenced by different
reasons for their votes.
[543] P. 314, _supra_.
[544] See a list of these charges in _Socialist Brief_, 10; also the
report of the Committee, _New York Times_, March 31.
[545] See p. 115, _supra_. The whole of Judge Garvin’s opinion in the
Syracuse case was read into the _Record_, p. 492, and reprinted in
_Assembly Outline_, 75. No facts or other reasons than this are given
to establish the guilt of the five members under the Act.
[546] May’s _Constitutional History_, I, 316.
Few legal documents furnish more delightful reading than the _Outline_,
as it is called, of “the case of the Assembly against the five
Socialist Assemblymen,”—the title is a significant comment on the
impartiality of a tribunal which constitutes itself both judge and
prosecutor. This makes it clearer than ever that the Socialists were
not excluded for any personal unfitness but for the supposed principles
of the party. Against Orr and De Witt as individuals, nothing whatever
is said. Claessens and Waldman are charged with intemperate speeches,
which “breathe in every word the spirit of treason and revolution
with thinly veiled phrases to escape the prosecutions of the federal
agents.” In other words, because they spoke so as not to violate the
Espionage Act, that makes it all the worse. Also Claessens is guilty of
teaching at the Rand School. That is an institution which circulates
the decrees of Soviet Russia, and has been convicted of publishing
Nearing’s _Great Madness_. Also one of his fellow-instructors was
imprisoned for leading raids on churches. Obviously, Claessens “stands
for the overthrow of our government.” And Solomon at least has
committed overt acts of undoubted enormity.
In 1692 the chief accusers of the Salem witches were a club of young
girls who sent more than one old woman to her death by telling how they
had seen her drink their blood or cause a yellow bird to sit on the
minister’s hat where it hung on a peg in the pulpit.[547] In 1920 Ellen
Chivers, a stenographer just under eighteen years old, testified that
three years before when she was barely fifteen, she heard Solomon make
a speech in Brooklyn, with an American flag and a red flag flying on
his stand.[548] A detachment of soldiers rode up recruiting and asked
to borrow his platform. She heard Solomon reply, “Lend you my platform?
Can you borrow my platform? Huh; the gutter is good enough for you.”
They spoke from their jitney and went on. Nor was this the worst. A
band of music came by on a trolley-car, stopped about three minutes,
and struck up the “Star-Spangled Banner.” And then in her presence and
in the presence, she declared, of two policemen, “Mr. Solomon turned up
his coat collar, put down his hat, and pulled it over his eyes, spit on
the American flag and sat down.” And the police did nothing.
[547] Palfrey, _History of New England_, IV, 102; Hutchinson, _History
of the Province of Massachusetts Bay_, II, 27.
[548] _Assembly Outline_, 71; _Record_, 705–723, for Chivers’ testimony.
The spy who is regularly employed by the government was brought into
undesired publicity by the Colyer trial. The voluntary informer is
also a recurrent feature of all prosecutions for opinion since the
day of Titus Oates and beyond. This girl was a member of the American
Anti-Socialist League and had attended weekly meetings for two years
before she testified. She had not mentioned these incidents to any
member of that society or to her sister or to any one else, until after
the investigation began, when she wrote to Speaker Sweet, because she
thought “it was the duty of any American to take the stand against one
who has committed treason against their country.” The two policemen
on the spot afterwards swore that no such disloyal acts occurred. The
Attorney General’s brief reprints without question the testimony of
Ellen Chivers.
Another group of charges was presented to appeal to Assemblymen
who were not entirely convinced by Miss Chivers and to attack the
Socialists who could not be accused of such open disloyalty. Candidates
of the Socialist Party were said to be bound by certain pledges,
which might conceivably operate to ruin the country, and were so
inconsistent with their constitutional oath as to make it false.
First, the National Socialist Constitution provides that Socialist
office-holders who vote to appropriate money for military or naval
purposes shall be expelled from the party. The New York Constitution
makes it the duty of the Legislature to maintain a minimum militia
of 10,000 men. Therefore they have disqualified themselves to take
the oath to support this Constitution. Even if this oath were not
obligatory, they have made themselves ineligible by promising to take a
course which if supported by a majority of the Assembly would destroy
the entire military organization of the state and tend to expose
state and nation to destruction from its enemies without and within.
The state’s right of self-defense gives it the right to exclude such
traitors. Their intention to disregard the constitutional provision
about the minimum militia is shown by their opposition in previous
sessions to laws giving extra pay for the National Guard and pay while
in federal service, also to laws for the expulsion of alien enemies
from teaching in the public schools, punishing the desecration of the
flag, establishing military training for boys, and conscripting labor.
The Attorney General neglected to add that they also voted against the
establishment of the Lusk Committee.
The Socialists replied that the Constitution was paramount.
Inconsistent party pledges were rejected by virtue of their oath as
Assemblymen. The National Party platform naturally failed to consider
the militia requirement of a particular state, and they were ready
to carry out whatever duty that requirement imposed. However, until
some one knew better what it meant, other members of the Assembly had
no right to define this duty for them[549] or say that it included
extravagant appropriations to maintain far more than the constitutional
minimum of 10,000 men. If a question of maintaining that minimum were
presented, they would do so. They were not obliged to vote extras or
conscript boys.
[549] That constitutional duties must be interpreted by the person
obligated under the sanction of his official oath, Ops. of the
Justices, 56 N. H. 576 (1875); Andrew Jackson, in United States Bank
veto, quoted by W. M. Evarts, _Arguments and Speeches_, I, 445.
Still more flimsy is the charge that the Socialist legislators were
to vote as a unit and obey the wishes of the party organization. This
promise, the Republican Attorney General gravely explains, must not “be
confused with party action in caucus where party men uniformly reserve
the right to withdraw if a proposed measure violates their conscience
or their patriotism or is not with party issues.”[550] And then a few
days later the Republicans proposed to displace Floor Manager Adler
because he voted against the unseating of the five members. Nothing can
be more touching than the indignation which the bare possibility of
political control by outsiders inspired in the henchmen of New York’s
“invisible government”:[551]
It makes no difference what name you give, whether you call it
Fenton or Conkling or Cornell or Arthur or Platt, or by the names
of men now living. The ruler of the state during the greater part
of the forty years of my acquaintance with the state government
has not been any man authorized by the constitution or by the law.
[550] _Assembly Outline_, 13. _Cf._ Bryce, _Am. Commonwealth_, 3
ed., I, c. XIX, p. 204. See Hillquit’s remarks on the Roman augurs’
wink. _Socialist Brief_, p. 22. I omit to discuss the charge that the
Socialists were required to resign if they violated the party platform,
as this was a dead-letter.
[551] Elihu Root, _Addresses on Government and Citizenship_, p. 202 (at
the N. Y. Const. Conv. of 1915).
The meat of the _Outline_ is the portrayal of the iniquities
of Socialism. This is a very different affair from the body of
economic principles which is attacked by Carver, Taussig, and other
economists, none of whom was summoned as an expert by the prosecution.
The _Outline_ conceives it as “a Revolutionary Party, having the
single purpose of destroying our institutions and government and
substituting the Russian-Soviet government, ... an anti-national
party whose allegiance is given to the Internationale and not to the
United States.” Its purposes, mass action and the general strike, are
treasonable. For its crimes the five members are responsible, and more
than that, for the acts of any other person in that party, whether or
not he belongs to their particular faction. As Mr. Stanchfield, for the
prosecution, openly stated:[552]
The whole theory of this investigation rests upon the proposition
that the Socialist Party, of which the five members under
investigation are confessedly, concededly members, has embarked
upon a program that calls for the overthrow of our form of
government, some assert by constitutional means, others by
violence. Now, assuming that that program is the basic charge
under investigation, then my argument runs along this line:
That every pamphlet, every declaration, every speech, every
statement of every men who is affiliated with or belongs to
that party, not necessarily in a technical sense of belonging
to it, but everybody who upholds those claims, who supports
those principles, who stands upon that platform, is bound by
the speeches, the sentiments, the writings, the books, the
publications of every other man affiliated with that association,
whether they were present at the time when it was made or they
were uttered, or whether they were absent.
[552] _Record_, 335.
No person who has followed with any intelligence the proceedings of
the Socialist Party at the conventions of September, 1919, or May,
1920, can doubt that that party is as much divided into factions as
any other. Nevertheless, the five members were held responsible on
Stanchfield’s principle, not merely for the statements in the party
platform but for the Debs speech at Canton, Ohio, statements in the
Moscow manifesto, extracts from a book in Yiddish published by the
Jewish Socialist Federation of America, all the articles contributed
to the _American Socialist_, for everything that was said by speakers
at meetings at which one of the assemblymen was present as well as
for statements made in a letter by an organization to which he was
bitterly opposed. This was guilt by association with a vengeance.
And finally the Attorney General corrects one member of the Committee
in his misapprehension of thinking that the duty to disqualify for
disloyalty rests with the people of the district. This, he says,
misconceives the representative as an officer of the district and not
of the state, and he shows the gravity of the error by an extract from
Burke’s “Speech to the Sheriffs of Bristol”:
You choose a member indeed; but when you have chosen him, he is
not a member of Bristol, but he is a member of _Parliament_.
“Thoughts on the Present Discontents” had been more to the point. And,
quoting more political scripture, he warns the Committee in Madison’s
words against that sectionalism which leads state legislators to
sacrifice the comprehensive and permanent interest of the state to the
particular and separate views of the counties or districts where they
reside.
When such testimony and arguments were admitted, the result was a
foregone conclusion. The Committee recommended expulsion, the Assembly
characteristically waited until April 1st, which was too late for
a re-election, and then disregarding the maiden speech of Theodore
Roosevelt, who, with all his inherited abhorrence of Socialism and
pacifism, refused to condemn the Socialist Party as a conspiracy for a
state of mind, expelled the five members by an overwhelming vote.[553]
The Legislature proceeded to enact the bills drafted by the triumphant
Lusk Committee, which not only throttle the Rand School, but exclude
from the definition of a party under the Election Law any organization
which advocates:
Principles, doctrines, or policies that tend, if carried into
effect, to the destruction, subversion or endangering of the
existing governments of the United States and of the State of New
York, and of the rights, privileges and institutions secured
under such constitutions.[554]
[553] _New York Times_, April 1st and 2nd.
[554] 2 _Review_, 422. Governor Smith vetoed all the Lusk bills in a
stinging message.
Any person who is a member of such organization is made ineligible for
public office. And then leaving the governor’s welfare bills untouched
the New York Legislature adjourned, and Speaker Sweet proclaimed the
session “a victory for undivided Americanism.”
Surely this event ought to free us from the tyranny of this word,
which seems like some magic helmet to render the true qualities of the
wearer invisible to those around him. The men who use the ideals of the
founders of our Republic, not as an inspiration for high-minded action
on their own part but as a test by which they may condemn and imprison
and disfranchise their fellow-citizens, are as unpardonable as the
persecutors who used the teachings of the Gospels to send men to the
stake in this world and hell-fire in the next. Years ago William Graham
Sumner commented:
Who dares say that he is not “American”? Who dares repudiate
what is declared to be Americanism? It follows that if anything
is base and bogus it is always labeled American. If a thing is
to be recommended which cannot be justified it is put under
“Americanism” .... Then we see what Americanism and patriotism
are. They are the duty laid upon us all to applaud, follow and
obey whatever a ruling clique of newspapers or politicians
chooses to say or wants to do.[555]
[555] _Folkways_, p. 177.
The absurdity to which our greatest state has descended in its frantic
desire to suppress disloyalty cannot be entirely explained by the fear
of Bolshevism, because the danger of that is far greater in European
countries, which have large groups of Socialists in their legislatures
unmolested. Nor is it entirely due to the activities of organizations
like the Lusk Committee. Something more is needed to account for the
statement of the _New York Times_ that the expulsion of the Socialists
was as clearly and demonstrably a measure of national defense as
the declaration of war again Germany.[556] Speaker Sweet and his
associates would not have acted as they did had they not been assured
of wide support, especially in the country districts. Much of the
panic-stricken dread of Socialism is due to the sentiment that we must
have unanimity of thought in this country. The surprising uniformity of
American life has long excited attention from foreign observers.[557]
Until recently we have had only a middle class without any proletariat
or large group of extremely wealthy men. Since the issues of the Civil
War died away, whatever few fundamental differences in opinion have
existed have rarely coincided with party lines. A French writer in his
biography of President Wilson remarks that a foreigner on coming to
this country does not understand our political parties. In Europe every
party has a platform which represents a definite policy, like monarchy,
clericalism, Socialism. He finds nothing of the kind here. Why do we
have two parties when they do not differ? Halévy explains that the
Republican and Democratic parties are like two great department stores,
such as the _Bon Marché_ and the _Louvre_. Both sell very much the same
things. Some people go entirely to one, some go entirely to the other,
some go first to one and then to the other. They are there because
they have always been there.[558] But now a new party has entered the
field which has real issues, vital one way or the other to all of us
and hence the antagonism of its opponents is immediate and bitter. When
it shows signs of gaining real strength then there is an energetic
effort to stamp it out, which likes to base itself on patriotism and
self-preservation.
[556] Editorial of April 2nd.
[557] See Bryce’s _American Commonwealth_, II, c. CXII.
[558] Daniel Halévy, _Le Président Wilson_, Paris, 1918, p. 109.
It is not by such methods that the nation can be saved from the
evil tendencies of any doctrine. The great strength of our argument
against violent-talking radicals in the past has been that we could
say to them: “It is true that in the countries that you came from
you naturally resorted to violence because you had no vote and could
not abolish the abuses to which you objected. It is not so in this
country. If you want a change, go and vote for it, vote for men who
have promised to bring it to pass.” The New York Assembly has deprived
us of this argument in the state where the left wing is strongest.
It has appealed to force as the normal method for settling conflicts
between ideas. It has disregarded the counsel of its wisest men to take
that of the Lusk Committee, whose whole existence has been a violation
of constitutional rights. It has disfranchised 60,000 American citizens
on the basis of a caricature of Socialism and the testimony of Ellen
Chivers. It has repudiated government by representation and substituted
government by misrepresentation.