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CHAPTER XII

VARIOUS EXCLUSIONS

THE eligibility of clergymen to be members of Parliament came to the front dramatically by reason of the election of Horne Tooke in 1801. Tooke, a radical agitator, had been a thorn in the flesh of the government from the outbreak of the American Revolution. In the debate on the attempt to exclude him, the Bishop of Rochester saw but one objection to the election of persons in holy orders — the unbecoming nature of the electioneering system, "the means by which candidates were obliged to seek admittance into the lower House, such as opening houses of entertainment, and truckling to every voter," which would form more or less of a difficulty to all scrupulous men. Lord Thurlow characterized the bill as one of disfranchisement. Lord Eldon supported it. Horne Tooke said “deacons and priests had sat in Parliament for more than a century, but at last one got in who opposed the Minister of the day, and then Parliament determined that there should no more be any deacons and priests admitted amongst them.” The precedents collected by the committee were obscure and inconclusive. Occasionally clergymen sat in the House in its early years, but their right was at least doubtful from the time when it was recognized that by being represented in Convocation they should be taxed in Convocation. The House refused to exclude Tooke, but promptly passed an act (41 Geo. III, c. 63) by which it was declared that “no person having been ordained to the office of priest or deacon, or being a minister of the Church of Scotland” should be capable of being elected, and if any such person should sit or vote, he was to be liable to a fine of £500 for each day, to any one who might sue for it. Tooke, having been chosen before the passage of the act, was excepted from its operation. The Roman Catholic clergy were excluded by 10 Geo. IV, c. 7, s. 9.

Italy forbids the presence of priests in its lower House and so does Brazil. In Victoria and South Australia clergymen are excluded from Parliament. The Japanese electoral law of 1889 disqualified for membership in the House of Representatives all Shinto or Buddhist priests, Christian clergymen, or other teachers of religion.

Objection to clergymen as lawmakers rarely reached the point of exclusion by law in the American colonies until Revolutionary times. In Maryland, indeed, from the start, no priest, clergyman, or preacher of the gospel sat in the Assembly, but this was exceptional, as was the act of Virginia, passed in the troublous days of the Commonwealth, declaring "it is unpresidential (unprecedented), and may produce bad consequences” 2 — in spite of which fear the ban seems later to have been there removed.

When the Revolution came, many of the clergy of the Church of England were naturally Royalists, and in those States where their influence had been strong, the framers of Constitutions took revenge by excluding them from Assemblies. Virginia led, in 1776, but not wishing to discriminate, declared "all ministers of the gospel, of every denomination, incapable of being elected members of either House of Assembly, or the Privy Council.” Maryland, North Carolina, and Georgia copied this in substance. New York saw fit to explain and justify. “Whereas," it said, "the ministers of the gospel are, by their profession, dedicated to the service of God and the care of souls, and ought not to be diverted from the great duties of their function; therefore, no minister of the gospel, or priest of any denomination whatsoever, shall, at any time hereafter, under any pretence or description whatever, be eligible to, or capable of holding, any civil or military office or place within this State.” This so pleased South Carolina that it was put into her second Constitution (1778), with the substitution of "public preacher of any religious persuasion” in place of “priest of any denomination," and with a limitation to two years after ending the exercise of the pastoral function.

All the Southern States coming afterward into the Union, save only Alabama and Arkansas, put the exclusion into their Constitutions. No Northern State imitated New York. In Massachusetts, however, I find that when the election of the Reverend Samuel Perley, returned a member from Gray in 1788, was controverted, the petitioners gave among their reasons “Because we suppose, that those, who impose taxes upon us, ought to be those only who pay a proportion of those taxes, which the said Perley, being a minister of the gospel, is not obliged by law to do.” The petitioners got leave to withdraw.

1W. H. Browne, Maryland, 57. 2 Hening, Virginia Statutes at Large, 1, 378. 1 Writings of Jefferson, P. L. Ford, ed., VII, 454.

Repentance and reaction began with Georgia, which, framing a new Constitution in 1798, dropped the exclusion. Two years later Thomas Jefferson, who wanted to be remembered for the bill he wrote establishing religious freedom in Virginia, awoke to his inconsistency in approving the denial of rights to clergymen. When in 1783 there was a general idea that a Convention would be called to revise the Constitution of his State, he prepared a scheme that he meant to propose. Writing to Jeremiah Moor, August 14, 1800, he said of it: "I observe an abridgment of the right of being elected, which after seventeen years more of experience and reflection, I do not approve. It is the incapacitation of a clergyman from being elected. The clergy, by getting themselves established by law, and ingrafted into the machine of government, have been a very formidable engine against the civil and religious rights of man. They are still so in many countries and even in some of these United States. Even in 1783, we doubted the stability of our recent measures for reducing them to the footing of other useful callings. It now appears that our means were effectual. The clergy here seem to have relinquished all pretension to privilege and to stand on a footing with lawyers, physicians, &c. They ought therefore to possess the same rights." 1

Nevertheless no other State than Georgia dropped the exclusion until Mississippi revised her Constitution in 1832. Louisiana (1852) was the only other Southern State to drop it before the Civil War, and she put it back from 1864 to 1868. The probability is that when the rest of the States made revisions before the War, they retained the exclusion not through fear of the political influence of clergymen, but because they thought the arena of politics unsuited to the cloth. In the Maryland Convention of 1851 Mr. Chandler, of Baltimore County, sought to strike out the obnoxious clause, but was defeated two to one. New York saw the light in 1846, an attempt to retain the provision being defeated in the Convention of that year by 77 to 33. In 1872 an attempt to restore it was unsuccessful.

Half a dozen of the Southern States removed the disability from clergymen in the Constitutions drawn after the War. Kentucky came to removal in 1891. Now only Maryland and Tennessee persist in narrowness.

Nobody would contend that clergymen as a class should play the part in public life that naturally falls to lawyers. As a rule they do well to refrain from prominence in party strife. On the other hand, it is desirable that many points of view shall be represented in the lawmaking bodies of a republic. Under normal conditions the chances of the suffrage will send one or two clergymen into each Legislature. Exceptionally they may be numerous. For instance, in the Know-Nothing Legislature of Massachusetts that sat in 1855 there were twenty-four clergymen, four times as many as the year before, but nothing like it has been known since. The record of that particular Legislature was not such as to encourage a wish for its repetition. The presence of so many clergymen was not by itself the cause, but probably it helped. There can be too much of a good thing.

Lawyers, now conspicuous if not dominant in all lawmaking bodies, have not always been welcome members. Hostility toward them goes back to the middle of the fourteenth century, when a Parliament called "Learned” because it contained so many members learned in the law, won the ill will of the royal favorites whose exactions were thereby thwarted. So it was petitioned that "Nul home de ley soient retournez ni acceptez chevaliers des Countees.” As a result it was enacted in 1373 that no lawyer practicing in the King's court should be returned knight of the shire. It was alleged that the lawyers used their places merely to advance the interests of their private clients. Soon after Henry IV came to the throne, his urgent need of money and his fear that his demands would be refused by a Parliament too intelligent, led him to put into the summons, "Nolumus quod aliquis homo ad legem aliqualiter sit electus.” By this he kept out lawyers from the boroughs as well as the counties. Coke says this "made the Parliament fruitless, and never a good law passed thereat, and called the 'lack-learning Parliament."

The law against lawyers, obsolete for centuries, was not formally repealed until 1871.

The Massachusetts General Court in 1663 ordered "That no person who is a usuall & common atturney in any inferiour Court shall be admitted to sitt as a deputy in this Court.” 1 Such a provision, however, does not necessarily indicate a mistrust of lawyers. Undoubtedly they were disliked, but the stronger reason for their exclusion was that the General Court was virtually the Court of Appeal. The separation of legislative and judicial functions had but begun. Many years were to pass before it would be prudent to let a lawyer sit in a body that might have to adjudge his cause. Hutchinson said he did not recollect that Boston ever chose a lawyer to represent it until 1738, when John Read was elected, but he was left out the next year. In 1758 and 1759 Benjamin Pratt was a member. According to Hutchinson, who was himself an able lawyer, “these were men of the first character in their profession.” And he goes on to say: “Lawyers have ever since taken the lead, and been much employed in the publick measures of this, and of the other colonies, and of the Continental Congress.” 2 Save for the record, it would be needless to say that practicing attorneys, as such, are no longer excluded from any of our lawmaking bodies.

When Pennsylvania's first Constitution (1776) forbade members of the House of Representatives to hold any other office, it excepted only office in the militia. The revision of 1790, extending the prohibition to members of Congress, added to the militia exception that of “attorney at law,” and so it still stands. The presumption is that somebody told the Convention that attorneys were or might be held to be officers under the Commonwealth or the United States. Two years later Delaware also took the precaution to put the standing of attorneys beyond dispute, and the example has since been followed by Colorado and North Dakota.

About a third of the States have thought it necessary in their Constitutions to exempt from the offices that legislators may not hold, those of Justice of the Peace or Notary Public or both. On the other hand, New Jersey specifically forbids Justices of the Peace to sit in the Legislature. Such variations are accounted for by the difference in the functions of these officials in various States.

Of course a quite different phase of the matter is presented by lawyer legislators who have clients interested in legislation.

1 Records of the Colony of the Mass. Bay in N.E., Iv, pt. 2, 87. ? History of Massachusetts, III, 104.

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