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that Stevens was able to say: "Corruption, bribery, and fraud have been freely charged, and, I fear, too often proved to have controlled their actions. No matter how honest when chosen, the atmosphere of Harrisburg seems to have pierced many of them with a demoralizing taint. A seat in the Legislature became an object of ambition, not for the per diem, but for the chance of levying contributions from rich corporations, and other large jobs. Corruption finally became so respectable as to seduce candidates for office boldly and to bid for them, and to pay the cash for the delivery of the ballot. The very office of Senator is known to have once been bought with gold, and to have been trafficked for on other memorable occasions in exchange for precious metals. Indeed it has become proverbial that the longest purse is sure to win.”
Much dirty linen was washed in the Convention of 1873. Although in the spirited debate aroused by the onslaught of Judge Black, defense was not lacking, yet the volume of denunciation would warrant the belief that for many years the Legislature had in fact been the scene of much venality. Even here, however, it is probable that the volume of depravity was exaggerated. Otherwise John S. Mann would hardly have had the courage to say he believed for three sessions when he was in the Legislature he could write the name of every member who had ever been influenced by improper motives in the passage of bills, and that in no one of these sessions did that number exceed fifteen.
The moral decay that made representative government the despair of thoughtful men during this epoch cannot be said to have been due in any degree whatever to the ravages of time. In some of the older States it did not appear at all; in others it was unimportant; and it appeared in several of the newer communities. Indeed its uneven distribution prevents attempts to generalize. For example, in 1873 Governor E. S. Straw of New Hampshire wrote to a delegate in the Pennsylvania Convention : "There has never been any corruption charged in our House of Representatives." Governor Jewell of Connecticut wrote: “I am proud to say there has never been any corruption of the Legislature.” 1
On the other hand so clean a State as Massachusetts found itself driven in 1869 to investigate a railroad scandal, due to the Hoosac Tunnel. No such corruption was exposed as had disgraced some other States, but there was ground for carrying one specific case of bribery to the courts. Grants to the Hartford & Erie railroad next roused the better instincts of the State. Largely by the efforts of the “Springfield Republican” public opinion was stirred to such a pitch that Governor Claflin had its backing when in a veto message he wrote: "Great as are the advantages, they are not to be counted for a moment, if the State is to be disgraced by silent acquiescence in the course of deception, peculation, and fraud, practiced by the managers of the company.” These episodes contributed to the establishment of the Massachusetts Railroad Commission, the pioneer of such bodies in this country, which, with a general railroad law, led to a great diminution of special legislation and its attendant corruption in public life.1
1 Debates of the Penn. Const. Conv. of 1878, 11, 281.
Of scandalous episodes in the newer communities one instance may suffice. A majority of the Wisconsin Legislature of 1856 is believed to have been bought to vote for a valuable land grant to the La Crosse and Milwaukee Railroad Company; $175,000 of stocks and bonds were distributed among thirteen Senators, and $335,000 of stocks and bonds were distributed among members of the Assembly. The bonds were worth forty-eight cents on the dollar, the stock sold in New York at from sixty to seventy-five cents.?
Let me spare you other proofs of weakness of some of our predecessors, and particularly let me escape the wretched story of the Southern Legislatures of the reconstruction period. It would only show what everybody knows — that untrained men do poor work and that men without moral standards are usually vicious, whether their skins are black or white. These Legislatures were in the hands of negroes recently freed from slavery, and the worst white element, for the most part adventurers or knaves or both. Their doings were abnormal and the abnormal has little of instruction or edification. It distorts the vision. It gives false values to human nature. It encourages groundless pessimism. It does not help.
i G. S. Merriam, Life and Times of Samuel Bowles, 11, 102 et 899. 2 Report of the Joint Select Committee of the Wisconsin Legislature, 1858.
PROTECTION against bribery of legislators was for a long time left to the common law and to statutes. There were some constitutional references to bribery, but it was tampering with voters that was in mind. With the alarming growth of the evil after the Civil War came the belief that there should be resort to the more solemn prohibitions of the organic law. In 1867 the special committee of the New York Convention investigating the matter reached the conclusion that the subject should no longer be left to the discretion of the Legislature, and it recommended an article defining bribery of public officers, providing for its punishment by imprisonment of not less than three years, and forbidding pardon or commutation of sentence except on satisfactory proof of innocence.1
New York did not act until later, but in that same year Maryland took the lead by directing the General Assembly at its very next session to provide punishment for bribing or attempting to bribe a public officer, as well as for demanding or receiving a bribe. Members and officers of the Assembly were specifically included. As part of the penalty the guilty man was to be forever disfranchised and to be disqualified from holding any office of trust or profit in the State. Next came Virginia, copying this in 1872. Pennsylvania followed, in 1873, by saying much the same thing, in somewhat different language. Since then more than a dozen other States have in one form or another put the subject into their Constitutions.
The New York Convention Committee of 1867 pointed out one serious difficulty in the way of enforcing the laws against bribery. It thought experience had proved the absolute necessity of exempting from punishment one of the parties if we would convict either, and so it recommended that the briber should not be punishable if the bribe was accepted. A committee of the Legislature investigating the scandals of the following year in connection with the Great Erie Railroad War, adverted to the same difficulty, saying the result under the existing law was either a refusal to testify, or remarkable forgetfulness, or something worse. Maryland in 1867 tried to meet the situation by providing that any person compelled to testify against another in bribery proceedings should himself be exempt from
10. Z. Lincoln, Const. Hist. of New York, u, 379.
trial and punishment, and West Virginia said likewise. Pennsylvania, in 1873, declared that any person might be compelled to testify and that he should not be permitted to withhold his testimony on the ground that it might criminate him or expose him to public infamy, but that his testimony should not be used against him in any judicial proceeding, except for perjury. When New York acted, in 1874, it provided that if upon the prosecution of a person for receiving a bribe, the briber testified that he had offered it, then the briber should go scot free. All told, ten of the States have now seen fit to permit by their Constitutions, and others by statutes, this, to which the lively American imagination has given the name of "the immunity bath."
Of the various devices for the artificial regulation of the individual conscience, all more or less futile, oaths are among the least efficacious. In ancient times, when the fear of the Gods powerfully influenced human action, solemn obligations were not useless. In as intelligent and civilized a community as that of Athens, we are told
1 that the oath sworn by the dikasts was the occasion of frequent appeals by the orators, who contrasted the dikasts with the unsworn citizens attending the ecclesia, or public assembly. In the course of the centuries, though the old traditions and forms persisted, they gradually lost their vitality. Even in our early colonial days, while theology was yet a dominating influence, men had come to realize that solemn adjurations were likely to be vain. In April, 1649, a petition of the Maryland Assembly to the Lord Proprietor read: “We do further humbly request your Lordship that thereafter such things as your Lordship may desire of us may be done with as little swearing as conveniently may be, experience teaching us that a great occasion is given to much perjury when swearing becometh common. Oaths little prevail against men of little conscience.”
Nevertheless, the men who began the giving of written Constitutions to the world, were not ready to abandon the old ceremonies altogether, and so they required public servants to subscribe to professions for the most part abstract and elastic that may have proved of some general value in dignifying the entrance upon public service. It is, however, much to be doubted if any good whatever has been accomplished by applying the principle to specific obligations. A few of the States have invited criticism on this score. When Illinois revised her Constitution in 1870, a new form of oath was contrived for members of the General Assembly, reading in part: “I have not accepted, nor will I accept or receive, directly or indirectly, any money or other valuable thing from any corporation, company or person for any vote or influence I may give or withhold on any bill, resolution or appropriation, or for any other official act.” Any member who refused to take this oath was to forfeit his seat. The idea pleased the fancy of West Virginia statesmen and they copied it, in 1872.
i George Grote, Hist. of Gree pt. 2, chap. 46.
The next year saw that most fruitful of the more recent Conventions, the body that labored for many months over the Constitution of Pennsylvania. For an illuminating and exhaustive discussion of oaths for legislators, the student may look with profit in the second volume of its “Debates” (p. 481 et sqq.). It fought long over a proposal to require from legislators upon leaving office an oath that they had supported the Constitution; had not "knowingly listened to corrupt private solicitation from interested parties or their agents”; had not received gifts or promises from such parties or their agents; had not voted or spoken on any matter on which they had or expected to have a private interest; had not done any act involving guilt
a of bribery; and had observed the order and forms of legislation as prescribed by the Constitution. In the end this was defeated by but one vote. Jeremiah S. Black had warmly argued for it, and it received the support of such thoughtful men as Wayne MacVeagh, Charles R. Buckalew, and Judge Woodward. On the other hand, strong arguments brought out the probability that the corrupt man will not hesitate to swear falsely, making oaths of little or no avail. Nevertheless the Convention, although unwilling to try to make the parting legislator disclose his iniquity, thought the coming legislator might well have his conscience propped by formal declaration, and so required him to declare that he would not knowingly receive, directly or indirectly, any money or other valuable thing for the performance or nonperformance of any act or duty pertaining to his office, other than the compensation allowed by law. Nebraska imitated this in 1875 and half a dozen other States have since then put it in their organic law.
Fraud and corruption in the processes of lawmaking may