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to the length of putting her disqualification into the Bill of Rights. The debate in the Kentucky Convention of 1849 was typical. Objection was made to putting criminal law in the constitution. Dueling was the fairest mode of fighting known. It was a restraint on the bully in high life. The people never respected a coward, and in Kentucky no man could succeed in public or private life if he suffered himself to be insulted. In Louisville there had been but two deaths from duels in seventy years. On the other hand it was urged that the killing of a man in a duel was murder of the most deliberate and malicious description. Kentucky was the only country in which no man had ever been punished for giving, accepting, or carrying a challenge, or for killing his antagonist in a duel. By 58 to 34 was passed the section requiring the members of the General Assembly, all public officers, and members of the bar, before entering upon their duties, to swear or affirm that since the adoption of the Constitution they had not fought a duel with deadly weapons with a citizen of the State, within or without its borders, nor had assisted in a duel in any way. Also disqualification was provided, but with the proviso that the Governor might pardon after five years.
Conventions in the course of and immediately after the War in some cases dropped provisions aimed at duelists, in other cases modified them, because they had been found too drastic, or general disqualifications by reason of infamous crime were thought enough, or the practice had so waned as to remove the need for exceptional penalty. Louisiana dropped the provision in 1864. Arkansas, in 1864, first providing perpetual disqualification from office, added the suffrage in 1868, and in 1874 took out the suffrage and restricted the office disqualification to ten years. Florida in 1865 put in the proviso that the legal disability should not accrue until after trial and conviction according to due form of law. Maryland in 1867 authorized removal of the disability by act of Legislature. Georgia, first inserting the disqualification in 1868, tempered it in 1877 by adding the power of pardon. On the other hand, Virginia, which in 1830 had left the matter to the Legislature, in 1870 made the exclusion explicit by constitutional provision. Illinois took a contrary course that same year by dropping the provision entirely. Colorado, in 1876, was the last State framing a first Constitution, to deem specific reference to the evil necessary.
1 F. N. Thorpe, Const. Hist. of the Am. People, 11, 126 et seq.
Florida in her Constitution of 1868 said, and still says, that the Legislature is to enact the necessary laws to exclude from every office of honor, power, trust, or profit, civil or military, within the State, and from the right of suffrage, all persons who shall make, or become directly or indirectly interested in, any bet or wager, the result of which shall depend upon any election. Do not suppose, however, that such a provision is primarily a matter of morals. The basis for it is the possibility of vitiating the expression of the public will by giving voters a pecuniary interest in the result, sometimes accomplished by forming large pools, in which shares are sold. In that light the provision has much more justification than one put into the Constitution of South Carolina in 1895, which says: “It shall be unlawful for any person holding an office of honor, trust, or profit to engage in gambling or betting on games of chance; and any such officer, upon conviction thereof, shall become thereby disqualified from the further exercise of the functions of the office, and the office of said person shall become vacant, as in the case of resignation or death."
South Carolina has another unique provision, aimed at lynching. It excludes from office (save in the event of pardon by the Governor), any State, county, or municipal officer through whose negligence, permission, or connivance a prisoner has been taken by a mob, and has suffered bodily violence or death. Three of the States exclude, or direct laws to exclude, on conviction of any malfeasance in office. Ever since 1786 Vermont has disqualified from all office any person taking greater fees than the law allows. A singular precaution against a particular kind of malfeasance is the Minnesota provision that if the presiding officer of either branch of the Legislature refuses to sign a bill that has passed both Houses, he shall become incapable of holding a seat in either branch of the Legislature or any other office of honor or profit.
That a man has been declared a criminal by State law, does not of itself prevent him from being elected to Congress. When James A. Peterson, nominated in Minnesota as a candidate for the United States Senate, was convicted of a felony and sentenced to imprisonment, the court refused to order his name to be kept off the ballot, holding that the provisions of the State Constitution imposing restrictions on the right to hold public office could have no application to the office of United States Senator.1
DUAL OFFICE-HOLDING In the earliest days of representative government it was seen that a man dependent on the bounty of the King for his livelihood was not a fit man to share in bargaining with the King through the process known as Parliament. Also it was soon recognized that the perquisites of office are a bait that may tempt lawmakers away from the exercise of independent judgment. So we find as early as 1348, in the 22d Edward III, the Commons praying the King, “That no person summoned to Parliament should be either a Taxer, Collector, or Receiver of the Fifteenth then granted.” And again, in the 25th of Edward III, the Knights, Citizens, and Burgesses were virtuous enough to pray, “That none of them be made Collectors of the aid then granted.”
It will be observed that two dangers were here anticipated, one threatened by the election of an office-holder to Parliament, the other by the appointment of a member of Parliament to office. These two aspects of dual office-holding are rarely discriminated, probably because the steps taken against the evils involved have usually been taken with both aspects in mind at the same time. For our purpose, however, it seems best to give in connection with “Qualifications” the facts relating to the election of office-holders to lawmaking bodies, and later on those concerning the appointment of members of such bodies to office, although the two subjects so overlap that precise separation is impossible.
In colonial times there was no general attempt to deliminate sharply the three branches of government, but here and there may be noted something like instinctive recognition of its desirability. For example, in Virginia tobacco inspectors were not only excluded from the House but also were not allowed to take any part in the election of members, or even be present at the polls. Finally, in 1742 and 1748 a tobacco inspector could not become a Burgess until two years after vacating the office. Sheriffs or others holding places of profit in the government were not eligible, and Burgesses were exempt from being compelled to serve as sheriff. By the act of 1762 Burgesses were prohibited from holding any other office of profit, and the acts regarding sheriffs and tobacco inspectors were reaffirmed." Maryland disqualified sheriffs, and also ordinary-keepers, who had to be licensed. The New York Assembly in 1770 disqualified judicial officers, but the act was disallowed.
1 State o. Schmall, 167 N. W., 481 (1918).
The presumption is that in the case of sheriffs the objection was the same as in England. Hatsell found that when in 1614 Sir George Selby, sheriff for Durham, had been elected Knight of the Shire for Northumberland, his election was declared void; and said he supposed the reason was the necessity sheriffs are under of residing in their counties during the greater part of the time. A notable application of the rule was in the case of the great lawyer, Sir Edward Coke. The activity with which he opposed the arbitrary measures of James the First, and the amazing fund of knowledge with which he supported the privileges of the House of Commons, furnished reason enough for Charles to try, by appointing him sheriff, to exclude him from a seat in the House. Hatsell says this measure so far succeeded that, though the House would not come to any decision on the question, Coke certainly never sat in the second Parliament summoned by Charles.
S. G. Fisher finds in the Georgia charter of 1732 a conscious attempt to keep the powers more distinctly separated. The charter provided that no person holding an office of profit under the corporation should be a member of the corporation. Mr. Fisher reasons that “the corporation, or members of the company, made the laws and appointed the council which carried on the company's executive business; so that the corporation was, in effect, the legislative department; and the provision for more distinct separateness meant that no member of the legislative department should hold any office in the executive department, or, presumably, in the judicial department, if there was one." 3
There may have been such a conscious purpose, but is it not more likely to have been some development of corporation practice in England ? Montesquieu had not then published the epoch-making book that spread throughout the colonies faith in the separation of powers.
1 E. I. Miller, The Legislature of the Province of Virginia, 56. 2 Precedents, II, 22, 24. 3 S. G. Fisher, Evolution of the Const. of the U.S., iii.
The Montesquieu doctrine, gaining well-nigh universal acceptance when the first American States were in the making, led Virginia to say that no person should exercise the powers of more than one of the three departments of government at the same time, except that justices of the county courts might be eligible to either House of Assembly. New Jersey excluded from the Assembly the judges, sheriffs, and all other persons "possessed of any post of profit under the government,” save only justices of the peace. Pennsylvania said no member while continuing such should hold any other office except in the militia. Maryland excluded any person holding a place of profit or receiving any part of the profits thereof. North Carolina specified certain officials who should not sit in the General Assembly. Other States have found an astonishing number of ways to say in general that a legislator shall not hold any office - or "any other office," if it be that a member of a Legislature is himself an officer.
The most considerable exception has been of officers of the militia, specified by about half the States. The recent change in the status of the militia, brought under Federal control, may raise some interesting problems in this particular. It has not been American practice to encourage the election of regular army or navy officers as lawmakers, but there is no objection to their presence in Parliament or, so far as I am aware, in most of the legislative bodies on the Continent. Indeed Germany goes to the point of saying that members of the military forces need no leave in order to exercise their functions as either national or State legislators, and, if they become candidates for election, the necessary leave to carry on their campaigns shall be granted. Poland deemed it desirable to specify that members of the army in active service shall not be excluded. France, however, in the Organic Law of November 30, 1875, declared that no soldier or sailor in active service on land or sea, whatever his rank or position, might be elected a member of the Chamber of Deputies.
Four of our States let any postmasters sit, and seven admit those with small incomes. Whether county or municipal officers are officers under the State," might furnish occupation to the hair-splitters. Three States have seen fit specifically to exclude county officers and four keep out prosecuting attorneys. New York, by amendment approved at the polls in