« AnteriorContinuar »
vitiate the product in the esteem of the public, but will not affect its validity. Although the courts have sometimes been urged to inquire into motives, they have never consented. Yet they have gone a long distance in trying to protect the sources of law from contamination. For instance, as far back as 1826 Chief Justice Skinner of Vermont, in Pingry v. Washburn, 1 Aiken 264, held that an agreement on the part of a corporation to grant to individuals certain privileges, in consideration that they would withdraw their opposition to the passage of a legislative act touching the interests of the corporation, is against sound policy, prejudicial to correct and just legislation, and void.
1 Cooley, Const. Limitations, 187.
IMPROPRIETIES OR WORSE
The appointment of members of Parliament to office became a great evil. The Stuarts brought into full flower the system of influence by means of favors. From the time of James I the King and his Ministers sought to control votes by lavishly granting offices, sinecures, or pensions. The Parliament of 1678 gained the name of “the Pensioned,” because so many of its members were provided for out of the public treasury. William of Orange accepted the situation as he found it and if anything made it worse. Hallam tells us no check was put on the number or quality of placemen in the lower House. New offices were continually created, and at unreasonable salaries. The abuse became such a menace that in the Act of Settlement, passed in 1700 to regulate the succession to the Crown, it was provided : “That no person who has an office or place of profit under the King, or receives a pension from the Crown, shall be capable of serving as a member of Parliament."
This was quickly found to be too rigorous. Had it been maintained, among its effects would have been the exclusion of Ministers from the Commons, thus preventing the development of the Cabinet system of responsible government. To get rid of the evident embarrassments, the Commons, in 1706, sought to introduce into the Act of Security, as it was called, a list of officials who might be members. The Lords wanted to abolish the whole prohibition. After a long controversy both sides receded and a compromise was reached by way of enactment that no man enjoying during pleasure a pension from the Crown should sit in Parliament; that no man holding an office created after October 25, 1705, could be elected or reelected; that in case any member accepted from the Crown an office created before October 25, 1705, except a high commission in the army, his seat should thereby be vacated, though he would still be capable of reëlection, the object being to submit the acceptance of office by a representative to the approval of his constituents.
Since then such has been the law in spite of all attempts at modification. At first, however, though the law may have hampered the Crown in the exercise of improper influence, the snake was only scotched, not killed. Under the Georges the evil flourished alarmingly. Out of 550 members of the first Parliament of George I, no less than 271 held offices, sinecures, or pensions, and in the first Parliament of George II there were 257 thus exposed to the charge of being under the royal whip. Walpole dominated Parliament by the corruption of which this was a part. After his fall, it was one of the first of the evils struck at by the reformers of the time. In 1743 they passed a Place Bill excluding a great number of minor officials from the House of Commons. It did not suffice. The evil due to civil offices and pensions continued well into the reign of George III, playing a prominent part in the turbulent and disastrous years before and during the war with the American colonies. In the year when peace was negotiated, 1782, Lord Rockingham's administration came into office pledged to economic reform. The Civil List Act to which his name was given, abolished many useless offices and cut down the pension list. After that the ground for complaint became unimportant.
In the colonies the royal Governors frequently used the patronage as a mode of influencing the Legislature, freely appointing members to profitable positions. Observe, for example, what took place in Massachusetts Bay. In 1707 and 1708 were published three pamphlets on the “Deplorable State of New England," the first a bitter attack on Governor Dudley, the second a defense, and the third a renewal of the savage criticism. The Mathers are supposed to have had a hand in the abuse and their standing was such that at least some ground for their charges may be assumed to have existed, although the evident animosity makes it wise to take them with a grain of salt. “We have already intimated,” says the third pamphlet, "how the Governor comes to have so many Friends in the House: that are so set on doing him justice, Right or wrong. Besides the caresses of the Table, which are enough to Dazzle an Honest Countryman, who Thinks every Body Means what he Speaks; The influence which Preferments and Commissions have upon little Men, is inexpressible. It must needs be a Mortal Sin, to Disoblige a Governour, that has Inabled a Man to Command a whole Country Town, and to Strut among his Neighbours, with the Illustrious Titles of, Our Major, and, The Captain, or, His Worship. Such magnificent Grandeurs, make many to Stagger Egregiously.” The writer goes on to tell how Colonel Dudley rewarded a member from Ipswich, sarcastically called a "Sow-Gelder,” by making him a Justice of the Peace. “Whether the Cattle are in less Danger, or the People in more, since this promotion, we who are Strangers to the Man, except by hearsay, know not; we suppose there never was a Sow-Gelder made a Justice except in New England, and that not till Dudley was their Governour." 1
The lower House of Maryland resolved in 1722 that there after any Delegate accepting an office or pension from or under the Government, should be incapable of sitting longer as a member. A dozen years later, by a vote of 37 to 4, it expelled four men for accepting office. Thereupon the Governor, calling the Delegates before him in the upper House, scolded them, declaring that the members in question had not been disqualified by any law, inasmuch as one House could not give its own resolution a force equaling that of the whole Assembly. In punishment he proceeded to dissolve the Assembly. When in 1750 two members were expelled for the same reason, dissolution did not follow, but the lower House seems not to have been sure of its ground, for repeatedly it sent up a bill covering the point, until in 1774 the upper House passed the measure, but with amendments, one of which would require that the members of both Houses should serve without pay. Thus amended the bill was not heard from again.
In Virginia the Governors sometimes got objectionable men out of the House by appointing them sheriffs. Acts of Assembly in 1730 and 1762 absolutely disqualifying sheriffs, provided that Burgesses accepting offices of profit should resign their seats, but followed English example by permitting them to be reëlected. In 1685 Robert Beverly forfeited his seat by being chosen Clerk of the Burgesses. Failure to live up to the principle brought the unfortunate episode of John Robertson's downfall, described in the previous chapter. After 1691 the Treasurer of the province was appointed by the House, and from 1696 whoever might be Speaker served in that capacity. This helped the House in its control of the Governors through the financial powers that went with the office of Treasurer. Upon the discovery after Robinson's death that his estate was seriously involved by reason of his loans of public money to personal and political friends, the House of its own accord and not forced by the home government, decided to separate the offices.
1 Mass. Hist. Soc. Colls., 5th Series, vi, 118.
Profiting by their knowledge of Parliamentary diseases in the mother country, by their own experience with insidious Governors, and by such cases as that of Robinson in Virginia, the authors of the Constitutions for the new States took precaution. South Carolina led the way by declaring that if a member of the General Assembly or Legislative Council accepted any place of emolument, or any commission save in the militia, he should vacate his seat. Other of the original States so phrased their prohibitions as to strike with one blow at both the election of office-holders to the Legislature, and the appointment of legislators to office without forfeiting their seats. None of them, however, went to the extent of keeping the Governor from appointing to office members of the legislative branch. The remedy was aimed chiefly at what was thought the bad practice of letting a man exercise legislative power at the same time that he was enjoying the perquisites of other office.
When the Revolutionary War ended, apparently the evil had not got beyond such a remedy on either side of the water. Hatsell, publishing in England his first edition of "Precedents" the year before the close of the war, seems to have had no more in mind. After citing the details of thirty-three cases where members of Parliament had been replaced upon acceptance of office, and describing half a dozen laws on the subject passed in the course of the century beginning with the reign of William III, he went on to say (p. 46): “These laws, which are all passed since the Revolution, show how anxious Parliament has been, at several periods, to diminish, as much as possible, the effect of that influence of the Crown, which, from the disposal of so considerable a number of lucrative offices and employments, might have an improper bias on the votes and proceedings of the House of Commons." The bias he had in mind was that of the member who votes while he holds office. It may be inferred that as yet there was no occasion to prevent the bias that comes from the prospect of office, whether at the hands of the Executive or of the lawmaking body itself. This is also the inference from the fact that Lord Buckingham's