« AnteriorContinuar »
to it,' was the answer. ‘They are both damned scoundrels.' 'Well,' said Stevens, 'which is the Republican damned scoundrel? I want to go for the Republican damned scoundrel.'
“We had a good many contests. But the Committee determined to settle all the questions before it as they would if they were judges in a court of justice. The powerful influence of Mr. McCrary, the Chairman, aided largely to bring about that result. The Democratic minority soon discovered that we were sincere and in earnest. They met us in a like spirit. I believe the Committee on Elections during that Congress reported on every case with absolute impartiality, and the House followed their lead.”
Such a high level of political morality could not be maintained. The witty George D. Robinson, who went to Congress from Massachusetts in 1877, was asked what were party questions. “I know of none," said he, "except election cases." With this may be matched the epigram of Speaker Reed on the same subject : "The House never divides on strictly partisan lines except when it is acting judicially.” Writing in the “North American Review” for July, 1890, Mr. Reed said more seriously : “The decision of election cases invariably increases the majority of the party which organizes the House, and which therefore appoints the Committee on Elections. Probably there is not a single instance on record where the minority was increased by the decision of contested cases. The record may not have been quite so shameful as that, but in essence the charge was true.
Conditions improved a little in the dozen years following. Computation showed that from 1865 up to and including 1903, although the majority deprived the minority of seats eighty-two times, yet it deprived itself of seats nine times. Nevertheless Samuel W. McCall was undoubtedly justified in writing in 1904: “I think it is very rare that a close election case is decided upon judicial grounds." Of late the situation has much bettered. In recent Congresses most of the committee reports have been distinctly fair and usually made by a unanimous vote. The House itself, however, sometimes inclines to be more partisan than its committees. With a revival of intense partisanship throughout the country, the Representatives would probably at once revert to the old system of putting expediency ahead of justice.
The danger of this is far from the only reason why the conditions should be at once reformed, by turning over to the courts as much of the work as possible. Representative Frederick W. Dallinger of Massachusetts was confirmed in this conclusion by eight years of service on one of the Committees on Elections, and in 1923 the committee of which he was Chairman reported his bill to have the Circuit Court of Appeals pass upon the question of the right of a member to his seat, in case of contest, with final decision still to lie in the House, by reason of the constitutional provision. In the excellent report accompanying the bill Mr. Dallinger pointed out that in addition to the danger of partisan decisions by the House itself, partisanship may at any time work serious mischief at an earlier stage, when State officials determine who is prima facie entitled to a seat. organization of the House is effected by those presenting proper credentials, the results may be far-reaching in case there is a close contest for the Speakership, which has happened more than once. Under Mr. Dallinger's plan, the court would issue the credentials, thus lessening the danger of unfairness.
Furthermore, proceedings would be much expedited. As things go now, few cases can be brought to decision within a year after the term begins, and not infrequently the decisive vote will not be reached in the House till the last week of the last session. In the 67th Congress three cases were disposed of at two o'clock in the morning of the last day. In this instance it chanced that no seats were vacated, but sometimes it happens that a member will be ousted close to the very end of his term, in which case he draws his salary up to the day of the vote, and the man who gets the seat draws pay for the full term, causing sad waste of public funds.
Another gain would be the 'avoidance of many frivolous contests. Often defeated candidates, counting on partisan support to bolster up doubtful charges, will put committees and the House itself to much trouble, when they would not have presumed to lay their contentions before a court.
Mr. Dallinger's bill could not be brought up in the House, by reason of the pressure of other business at the end of the session, but there is ground for hope that it may have better fortune speedily. Not a single reason of weight militates against it, and it ought to prevail.
With the constant elaboration of election laws and the growth
of a public opinion that frowns on the more flagrant abuses, it is probable that the number of contests, in both Federal and State elections, will diminish. Already the gain has been marked. In the first fifty years of Congress, 71 seats were contested; in the next fifty years, 278. Then in a single decade there were 88 cases, but the total for the next two decades was only 72. The five Houses from 1913 to 1923 averaged but about six cases each. By 1879 the work confronting the Elections Committee had become so great that Roger Q. Mills suggested its division. The suggestion bore fruit in 1895 with the creation of three Election Committees, of nine members each. They survive, but two could now usually do all the work without hardship.
By the volumes of Massachusetts Election Cases it appears that from 1780 to 1852 there were 297 cases, an average of four a year. From 1853 to 1885 there were 124, giving an average slightly smaller. From 1886 to 1902, only 34 were reported, an average of but little more than two a year. Since then there have been so few cases that appointment to the Committee on Elections is now viewed as an empty honor. Doubtless in time the same gains will be made throughout the country, for sooner or later the suffrage will everywhere get the adequate protection of the law.
Inferring from the German Constitution of 1919, we may conclude that occasion for systematic treatment of election cases has not been confined to England and the United States. In Germany disputed elections are to be decided by an Electoral Commission, made up of members of the National Assembly and members of the National Administrative Court, the latter to be appointed by the President of the Commonwealth on the nomination of the President of the Court. Proceedings apart from the hearings before the Commission will be conducted by a National Commissioner appointed by the President. Prussia has made like provision. Austria and Poland put the matter in the hands of the Supreme Court, and Czecho-Slovakia provides for an “electoral court,” but Jugoslavia says the National Skupshtina shall scrutinize the credentials of its own members and shall decide about them.
Canada, which in 1851 had created "the general committee of elections," with six members appointed by the Speaker, its decisions to be final and conclusive, now by the statute of 1886 as amended in 1915 designates various courts that are to have jurisdiction, two judges to be "trial" judges and their decision to be final. If they differ, they are to certify their difference and make no report. Appeals lie to the Supreme Court, the decision of which is to be final.
Egypt furnishes a novelty in the provision that a mandate can be declared invalid (which presumably means that credentials can be rejected and perhaps that a member can be unseated), only by a two-thirds vote. Although each House is to judge as to the validity of elections, the power of validation may be conferred on some other authority.
COMPETENCY AMERICAN Charters and Constitutions when directing who may and who may not be chosen to write laws, have more often laid the emphasis on disqualification than on qualification. In other words, it has been more common to exclude the presumably incompetent than to invite the probably competent. In the early days there were a few well-meant, high-sounding, platitudinous, quite ineffective designations of the kind of men to be elected. Thus William Penn set forth in his Frame of Government of 1682 that "seventy-two persons of most note for their wisdom, virtue and ability" should be chosen. When Pennsylvania came to make her Constitution of 1776, this was shortened into "persons most noted for wisdom and virtue," from which it may or may not be inferred that there was despair of getting persons of ability. Even the hope of wisdom and virtue is not found in the Constitution of 1790.
New Hampshire began with the demand that her Assembly should be composed of "reputable” freeholders and inhabitants, but abandoned the demand in 1784. Maryland was more persistent. The injunction of 1776 that Delegates should be elected “of the most wise, sensible, and discreet of the people," was not dropped until 1851. Vermont has clung to the dream of Penn, as transmitted to her through the Pennsylvania Constitution she copied in great part. It appears to be still the case that the Representatives of the Freemen of the Green Mountain State are to be “persons most noted for wisdom and virtue"; but no such requirement was imposed when a Senate was created.
The Irish Free State seeks the ideal by prescribing that Senators shall be citizens who have done honor to the nation by reason of useful public service or who, because of special qualifications or attainments, represent important aspects of the national life.
Turning to the negative phase of the matter, observe that the scope of the word "qualifications” has not escaped dispute. Does it mean those that are set forth in the fundamental law, or may the adjudicating body use its own judgment in respect of particulars not therein covered? Much is to be said for the contention of the strict constructionist that legislative bodies have no powers not expressly delegated, but my own belief is that in this matter the weight of common sense is with those who argue for plenary powers. Is it not absurd to suppose that an assembly may not exclude an idiot or a leper? And if it be granted that an assembly may in any case whatever go beyond the written word, how escape the conclusion that the matter is one of judgment?
AGE, SEX, EDUCATION Of specific disqualifications, the most natural and clearly the most proper is that on the score of age. By the common law of England a man was of full age at twenty-one. How that period came to be accepted, is lost in the mists of antiquity. It was not the civil law, for in Rome full age was not till twenty-five years. Our English ancestors decided that at the age of twelve a male might take the oath of allegiance, at fourteen might choose his guardian, at seventeen might be an executor, and at twenty-one, with complete power to alienate his lands, goods, and chattels, to dispose of his property and himself, was of "full age.” This inevitably became a test of his fitness to serve in Parliament. Apparently, however, no occasion for its use came until the time of James the First. A speech by Recorder Martin in the tenth year of that monarch is mentioned with commendation by Dr. Welwood in his “Memoirs." The membership of forty youths not above twenty years of age, and some not exceeding sixteen, caused the grave old lawyer to say, that “it was the ancient custom for old men to make laws for young men; but that now he saw the case altered, and that there were children elected into the great council of the nation, which came to invade and invert nature, and to enact laws to govern their fathers."