Chapter VI: John Wilkes, Victor Berger, and the Five Members (3)

Let us now turn to the legislative precedents and see how far they agree with the judicial discussion. At the outset, the reader must be warned that these precedents rarely afford a satisfactory formulation of the principle on which the house acted, which can be automatically applied in subsequent cases after the manner of court decisions. A legislature is not by nature a judicial body. Its members are chosen and organized for carrying out policies, and not, like judges, for the sole purpose of thinking together. When they are called upon to perform judicial duties in trying impeachments and charges of bribery, the most earnest efforts to attain impartiality hardly prevent them from being swayed by party motives, and their debates lack the training and the restraints which mold the words of judges. The Lorimer case brought out these qualities of a legislative trial, and a few years ago the New York Senate refused to expel two members for corrupt practices, who were subsequently tried and convicted for the same offense. Moreover, the basis of a legislative discussion is often obscure because of the number of persons who join in the debate. Sometimes the only certain fact is that the member was or was not unseated. It is significant that the Wilkes case led Parliament to delegate the trial of controverted elections to a tribunal of judges.[514] The Berger and Socialist cases might well lead us to consider establishing a preliminary investigation by judges instead of by a legislative committee and thus obtaining the benefit of a trained judicial opinion as the basis of the action of the house.[515]

[514] May, _Parliamentary Practice_, 12 ed., 581.

[515] This plan is already in force in Pennsylvania. _Re_ McNeill, 111 Pa. St. 235 (1885). The legislature could not completely delegate the decision of such contests. S. _v._ Gilmore, 20 Kan. 551 (1878); Dalton _v._ S. _ex rel._ Richardson, 43 Oh. St. 652, 680 (1885). The Presidential Electoral Commission of 1877 affords an analogy.

The English legislative precedents show that Parliament has no control over the eligibility of candidates but simply administers the laws defining their qualifications. One house of Parliament cannot create a disability unknown to the law. This was established by the Wilkes case and by that of Charles Bradlaugh, who was at first debarred and expelled from the House of Commons on the ground that as an agnostic he could not conscientiously take the oath, but was eventually on re-election sworn in without objection, and the resolution debarring him was expunged from the journals. On the other hand, each house has power to suspend or expel by way of punishment. Members have been suspended for disregarding the authority of the chair or obstructing business. They have been expelled for crimes and other disgraceful acts which render them unfit for a seat and which if not so punished would bring discredit on Parliament. Lord Campbell thinks even an offense before election is cause for expulsion if conviction follows election, for there might be a presumption that his constituents would not have elected a person guilty of such misconduct, and it might be fair to give them an opportunity of determining whether they would still have him for a representative. Expulsion is not a disqualification if the member be re-elected. Except for Wilkes and Bradlaugh, no person has been expelled in modern times for conduct involving the expression of opinions, and both these expulsions were officially declared to be wrong and expunged.[516]

[516] May, _op. cit._, 59–62, 153–156, 187. He does not discuss the question whether a member can be expelled for an offense committed before his election. I Story on the Constitution, § 838, says the power is not limited to offenses during the particular session. Lord Campbell’s opinion is in his _Life of Lord Camden, Lord Chancellors_, (1846 ed.) V, 276.

The Congressional precedents also afford no support for the contention of the New York Assembly that duly elected legislators can be disqualified or expelled for disloyal opinions which have not been made a bar by law. There is no authority that a house will go into the question of the moral fitness of a member to occupy a seat. Where would such an inquiry stop, and what standards could be fixed? Each house undoubtedly has the right to expel a member for actual crimes committed after his induction to office, but it is settled that it cannot punish him for an offense committed before his election, and even Lord Campbell’s view of the effect of conviction after election is opposed by the case already mentioned of Matthew Lyon, imprisoned under the Sedition Act of 1798. This disposes of the half-hearted contention that the New York Socialists had violated the Espionage Act during the war.[517]

[517] _Berger Report_, 10; opinion by Speaker Cannon in 3 Hinds’ Prec. 1157; 2 _ibid._ 829–860, 1 _ibid._ 521, for cases. But see arguments contra, 1 _ibid._ 437, 524. Apparently no one has been expelled from Congress for crimes, except those against the Government, but several men have resigned. There is some doubt whether a member can be expelled for crimes unrelated to his office. See the majority and minority reports in the Roberts case. 1 Hinds’ Prec. 523. The House refused to expel Herbert of California in 1857, who was charged with homicide, and Harris of Maryland in 1865, though convicted of aiding the rebellion (probably before election), and Cannon of Utah in 1875, though a polygamist. 1 Hinds’ Prec. 500. For the Espionage Act charge, see _Assembly Outline_, 75. No evidence is given.

At the outbreak of the Civil War several Southern Senators and Representatives were expelled for their treasonable conduct in remaining permanently absent from their Congressional duties and either taking up arms against the government or entering the Confederate lines and actively participating in the rebellion.[518] On the other hand, both houses refused to expel members from border states who had committed no overt acts, but had vigorously opposed by speeches the prosecution of the war by the North.[519] Among these were Representative Long of Ohio, who declared himself in favor of recognizing the independence of the Confederacy, Representative Harris of Maryland, who said, “I hope you will never subjugate the South,” and Senator Powell of Kentucky. Powell presided at a large Southern States’ Rights convention in Kentucky in June, 1861, which urged the recall of the Northern armies and the recognition of the Confederacy and endorsed the action of the Governor in refusing to furnish troops to subjugate the South and forbidding both sides to invade Kentucky. In September, 1861, he was a delegate to a second convention, which adopted resolutions drafted by a committee of which he was a member, proclaiming the neutrality of Kentucky and refusing aid by money, taxation, or loans to “a cause so hopeless as the military subjugation of the Confederate States.” The Committee on the Judiciary reported against expulsion, and its chairman, Senator Trumbull of Illinois, whose loyalty no man can question, stated in debate that though the resolutions were downright opposition to the constituted authorities of the government and wholly unjustifiable, and though the neutrality of Kentucky did favor the cause of the rebellion, yet when that neutrality was abandoned Powell had discharged his duties to the government at Washington; “and no man is to be expelled from this body because he disagrees with others in opinion.” The resolution of expulsion was overwhelmingly defeated.

[518] 2 Hinds’ Prec. 812, 813, 822–826. See also the expulsion of Senator Blount in 1797 for trying to alienate the Creek Indians from the resident Government officials, 2 _ibid._ 813.

[519] 2 _ibid._ 803, 827.

The Assembly relies on the case of Senator Bright of Indiana, who was expelled by a bare two-thirds for writing a letter to Jefferson Davis, bringing a military invention to his attention. It is true that some language used in the debate about other utterances of Bright implied a power to expel merely for disloyal opinions, but his conduct was treasonable aid to the enemy if the requisite intent existed, and Senator Trumbull in moving his expulsion based it squarely on the ground of treason.[520] Therefore, this and all the other expulsion cases draw the line between overt acts identifying the legislator with the enemy and opposition to war by words. A legislator can be expelled only for criminal or otherwise disgraceful conduct subsequent to his election, and not for disloyal language or for affiliations with political groups, even if like the Kentucky neutrals they oppose the government without, however, joining its enemies.

[520] 2 _ibid._ 821; see extracts from debates omitted by Hinds in _Assembly Outline_, 83, and _Socialist Brief_, 110.

The Congressional precedents on the unseating of members because they are not qualified are still more important, since the action of the New York Assembly, though often called an expulsion, was really an adjudication of ineligibility and not an expulsion for misconduct. A review of these precedents reveals two sharply conflicting views. The first accords with Story’s opinion that no addition can be made to the constitutional requirements.[521] The Constitution gives the people the inalienable right to choose any one they please who has the qualifications named. An insane man cannot take his seat if he lacks the mental capacity to take the constitutional oath. Bribery and corrupt practices connected with the election prevent him from being duly elected, for fraud vitiates all transactions, and an unseating on this ground, as in the Lorimer case,[522] is not a disqualification for crime, but a decision that no valid election has taken place. Crime as such is no bar, except treason by virtue of the Fourteenth Amendment. Representative government relies on the judgment of the people to pick fit men, not on the wisdom of a House of Congress or any other select group. In the improbable event that a district should elect a convicted murderer, he can act so long as he is at large. If the general welfare requires that this be made impossible, then the Constitution should be amended. A power in the legislature to add new qualifications is equivalent to a power to change those prescribed by the fundamental law. If it can add crime or disloyal acts as bars, it can add profiteering as well. There is no line to be drawn, once it is allowed to cross the constitutional limits. It can turn our democracy into an oligarchy by imposing high property qualifications, or into a dictatorship of the proletariat by declaring ineligible all persons deriving income from rents and invested capital.

[521] The fullest discussion of both views is in the minority report in the Roberts case, 1 Hinds’ Prec. 518 (unseated). See also Stark, 1 _ibid._ 433 (seated); Smith _v._ Brown, 1 _ibid._ 441 (unseated); McKee _v._ Young, 1 _ibid._ 451 (unseated); Thomas, 1 _ibid._ 466 (unseated); Maxwell _v._ Cannon, 1 _ibid._ 493 (seated); Campbell _v._ Cannon, 1 _ibid._ 500 (unseated); Smoot, 1 _ibid._ 561 (seated); discussion by House Committee, 1 _ibid._ 591; _Berger Hearings and Report_ (unseated). Among those presenting the first view are Littlefield of Maine, 1 _ibid._ 537; Senator Knox, 1 _ibid._ 587; Senator Reverdy Johnson, 1 _ibid._ 489.

[522] Webb and Pierce, Senate Election Cases, 1002. But see P. _ex rel._ Bush _v._ Thornton, 25 Hun 456 (1881).

The second view allows some additions to be made to the constitutional qualifications. Otherwise, the great leaders of the Confederacy might have been seated before the Fourteenth Amendment, or Brigham Young could have been elected and his forty wives have occupied the gallery to see him sworn in. Is a man to be brought from a felon’s cell to the floor of the Senate? Suppose a representative just before he is sworn in should create some outrageous disturbance in the House; if he cannot be disqualified, will it be necessary to go through the rigmarole of first swearing him in, and then expelling him? The duty of each chamber to preserve the nation and carry on business is said not to be sufficiently safeguarded if the constitutional requirements are exclusive of all others.

The view forbidding all additions seems to me the sounder in the United States Government, and still more obligatory under the New York Constitution, with its clause against other tests. It must be conceded, nevertheless, that notwithstanding the ability of the men who have taken this position, it has frequently been rejected in Congressional practice, and is also opposed to the opinion of the New York Court, rendered however before the adoption of the test clause just mentioned, that conviction for crime could be made a bar by statute.[523] Yet even if the second view be accepted, the range of new qualifications has been so closely limited by Congress that neither of the two views furnishes the slightest support for the proceedings of the New York Assembly.

[523] See p. 342, _supra_.

In the first place, the Congressional precedents agree with the Wilkes case and the judicial decisions that qualifications must be established by law, and that the resolution of one house of Congress cannot make law. When Representative Connor of Texas was charged with having cruelly whipped negro soldiers under his command and bribing them not to testify against him before a military court, Garfield asked if anything in the Constitution and laws of the United States forbade that a moral monster should be elected to Congress. Connor was sworn.[524] The House also refused to inquire into a charge of seduction, and the Senate into one of embezzlement.[525] All the exclusions which have occurred were for offenses which had expressly been made a disqualification by Act of Congress.[526]

[524] Grafton _v._ Connor, 1 Hinds’ Prec. 488.

[525] Acklen, 1 _ibid._ 489; Roach, 1 _ibid._ 570.

[526] Besides the statutes mentioned, Act of February 26, 1853, c. 81, 10 Stat. at L. 171, disqualifies any member convicted of receiving bribes for discharging an official function. B. F. Whittemore of South Carolina resigned to avoid expulsion for sale of West Point appointments, was at once re-elected, and disqualified. 1 Hinds’ Prec. 487. The case cannot be supported. See 1 _ibid._ 540 for a vigorous attack on this case.

The most important of these statutes was enacted in July, 1862. In January of that year the Senate had decided that Stark of Oregon was entitled to take his seat, although he had made disloyal speeches. Senator Harris of New York, the Chairman of the Judiciary Committee, denied in debate that the Senate ought to be the ultimate judge of a man’s fitness or was competent to reject him upon any view it might take of his moral, intellectual, or political capacity.[527] It was not until the passage of the Test Oath Act,[528] obliging men to swear before admission to office that they had never borne arms against the United States, given aid, countenance, counsel, or encouragement to the enemy, or yielded a voluntary support to any pretended government, that persons were excluded for disloyal conduct. Such an Act is of course impossible under the New York Constitutional prohibition of additional oaths and tests. And it is noteworthy that although the terms of this statute included much more than treason, the ironclad oath was not used to bar members for personal disloyalty or passive sympathy with the rebellion, or speeches denouncing the war as an abolition war and opposing any further aid toward its prosecution.[529] One man was excluded who had sent food to a Confederate camp, brought a gun, and pointed out a house where a Union soldier was hiding, telling the Southerners to go and get him, a clear case of treason.[530] The most extreme case was John Young Brown, who was disqualified for a letter to the press, saying that Kentucky would not furnish a man or a dollar to aid Lincoln in his unholy war against the South, that an invading Northern army would be resisted to the death, and that any Kentuckian joining it ought to be and would be shot down before he left the state.[531] This is the only instance of disqualification from Congress for utterances without overt acts. Thus, even in the heat of the Civil War, disloyalty was not a bar to an elected member of Congress, until it was expressly made so by a statute, and not then unless it was evidenced by actual aid to the enemy or words of acute virulence.

[527] 1 Hinds’ Prec. 433. _The Assembly Outline_, 82, erroneously cites this case as authority for the exclusion of the Socialists; besides that of Smoot, who was also seated. The only other authorities cited are the case of Roberts, a polygamist disqualified by statute, and Bright expelled for treason, and a Virginia vote of 1619 excluding men who denied they were subject to the government of Virginia. The Assembly Brief cites several cases under the Test Oath Act; and several instances of expulsion. The principles of these cases are discussed in the text.

[528] Act of July 2, 1862, c. 128, 12 Stat, at L. 502.

[529] Kentucky Members, 1 Hinds’ Prec., 441; Symes _v._ Trimble, 1 _ibid._ 459.

[530] McKee _v._ Young, Rowell Dig. Election Cases H. R., 222. Hinds does not state the facts fully. Senator Thomas of Maryland was disqualified for aiding his son to enter the Confederate army. 1 Hinds’ Prec. 466.

[531] Smith _v._ Brown, 1 Hinds’ Prec. 444.

Some doubt was cast upon the validity of the Test Oath Act, and in 1868 it was virtually superseded by section three of the Fourteenth Amendment,[532] on which rightly or wrongly the exclusion of Berger was based.

[532] P. 323, _supra_. See Reverdy Johnson in 1 Hinds’ Prec. 469.

The Church of Jesus Christ of Latter-day Saints is a much more closely knit and powerful organization than the Socialist Party and instead of being legalized by statute has frequently been made the object of adverse legislation. Consequently, the decisions upon the admission of Mormons to Congress are much in point. The constitutional question was not squarely raised while Utah was still a territory because each house was held to have complete control over the eligibility of Delegates, who were distinguished from Representatives. Nevertheless, the decisions at that time make the distinction which I have emphasized between overt acts and mere opinions.[533] In 1868 the election of Hooper was contested on the ground that he represented the institution of polygamy and a community hostile to the other portions of the United States and was disqualified by a secret oath. The House Committee reported that Mormonism was antagonistic to the United States but had never organized rebellion or sedition against the supreme authority of the Union, or committed treason by any overt act. Hooper was accordingly seated. On the other hand, a Delegate who was himself a polygamist was unseated. Even in this case a strong minority protested against the assumption by the House of the arbitrary power to inquire into the moral fitness of candidates, and asked whether if it was a bar for a Delegate to live with four women who were married to him, it would also be a bar if three of them were not.

[533] McGrorty _v._ Hooper, 1 Hinds’ Prec. 490; Maxwell _v._ Cannon, 1 _ibid._ 493; Campbell _v._ Cannon, 1 _ibid._ 500.

After the admission of Utah as a state, the issue became acute. The Edmunds Act of 1882 had disqualified any polygamist, whether convicted or not, from office under the United States.[534] Brigham H. Roberts, a convicted polygamist, who was still living with three wives, was elected Representative in 1898, and was finally unseated after a thorough discussion from both points of view of the question whether Congress or the House could add qualifications to those specified in the Constitution.[535] The majority relied to a large extent on his ineligibility under the Edmunds Act, so that the case supports the principle already stated, that if any disqualification can be added to the Constitution, it must be created by law. The minority in an opinion by Representative Littlefield of Maine, and De Armond of Missouri, which has been approved by Chief Justice Cullen of New York,[536] contended that Congress could not add any qualification to the Constitution, especially if it did not satisfy the test of Chancellor Sanford[537] that it must be based upon a conviction of crime. The minority declared that Roberts should not be disqualified but expelled, not for any offense prior to his election but because he was continuing to commit the crime of polygamy. Inasmuch as the vote for unseating him was more than two-thirds, the method of removal became academic. At all events the decision is no authority for the case of the New York Socialists, because it rested upon a statute and upon an alleged breach of the compact which Utah had made on entering the Union to abandon polygamy forever, and furthermore it involved overt criminal acts and not opinions or party affiliations.

[534] Act, March 22, 1882, c. 47, § 8; 22 Stat. at L. 31. This was held in the Roberts case to apply to members of Congress.

[535] 1 Hinds’ Prec. 518–560.

[536] Dissenting opinion, P. _v._ Ahearn, 196 N. Y. 221, 252 (1909): “No lawyer can read the clear and forceful minority report of Messrs. Littlefield and De Armond without at least doubting the correctness of this decision.”

[537] P. 342, _supra_.

This distinction is clearly brought out by the refusal of the Senate in 1904 to exclude or expel Reed Smoot.[538] He was not himself a polygamist or otherwise disqualified by statute, and had personally opposed polygamy in Utah, but he was one of the twelve apostles who together with the first president ruled over the Mormon hierarchy, and as a body encouraged the continuance of polygamous cohabitation (at least in long-standing marriages) and controlled the political affairs of Utah. According to the majority of the Committee, Mr. Smoot came there, “not as the accredited representative of the State of Utah, but as the choice of the hierarchy which controls the church and has usurped the functions of the State.”[539] Nevertheless, the Senate refused to look beyond the question of his personal guilt of crime or disbar him for the political and ethical purposes of the organization to which he belonged. A powerful argument for the prevailing view was made in debate by Senator Knox of Pennsylvania, who pointed out that the Constitutional disqualifications do not in any way involve the moral qualities of a man. They relate to facts outside the realm of ethical consideration and are requirements of fact easily established. As to all matters affecting a man’s moral or mental fitness the states are to be the judges, in the first instance, subject to the power of the Senate to reverse their judgment by a two-thirds vote of expulsion when an offense or offensive status extends into the period of service; and such a question can only be raised after a Senator has taken his seat. It is hardly proper to adopt a rule of constitutional construction based upon the theory that states will send criminals or idiots to the Senate. This position limits the effect of the Test Oath cases and relegates them to the status of consequences of the extraordinary situation following the Civil War.

[538] 1 Hinds’ Prec. 561–590. _Socialist Brief_, 116. The majority of the committee recommended disqualification but the Senate adopted the minority view, which did not however dispute the political power of the hierarchy or its attitude toward polygamy.

[539] 1 _ibid._ 587.

And finally the precedents in the New York Assembly itself are inconsistent with its recent action.[540] In 1906 it refused to disqualify a member for fraudulent practices in connection with a nomination. In 1917 it refused to oust another on the ground that he was not a resident of the district which he had been elected to represent. And in 1918 Lucas E. Decker, who was found to have failed to register for the selective draft and lied to excuse himself, was not excluded. The committee reported that the circumstances were matters of public record while Decker was a candidate for election, and that “in order to remove a member of the Assembly from office, under the Constitution, some question involving the election or returns is necessary before the Assembly has jurisdiction in the premises, or further, that the person so elected must be entirely disqualified under the Constitution, or by his conduct in the house must disqualify himself.” The committee’s report was adopted and Decker declared entitled to his seat by a unanimous vote.

[540] _Socialist Brief_, 104–109.

Consequently, the principle is indubitably established, by judicial and legislative precedents, that the power to add qualifications to those fixed by the Constitution, if it exist at all, extends at the most to overt acts which have been made a bar by statute. And in New York State in view of the test clause in the Constitution and the decision of Chancellor Sanford, it is doubtful if even a statute could impose any other bar than conviction for crime. No such statute existed in the case of the New York Socialists. They were convicted of no crime, they were not even charged with any crime except a vague and unsubstantiated allegation of violation of the Espionage Act.[541] The action of the Assembly must be characterized as a flagrant usurpation of power, only to be found in that government of which Senator Root,[542] who had good reason to know, said that for forty years it had been about as representative and responsible as the government of Venezuela.

[541] _Assembly Outline_, 75. The subsequent Assembly Brief reached me too late for extended comment upon its argument (64–76, 195) that the Constitution, by requiring an oath to support it, also impliedly requires an “inner state of mind” and so makes “disloyalty” or membership in a “disloyal organization” a disqualification for taking the oath, which the Assembly is authorized to investigate. The dangers of such a vague disqualification are obvious and no precedent exists for this doctrine. Even in the exasperations and exacerbations of politics after the Civil War Congress only refused the Test Oath to men found to have committed _in the past_ the very acts which the oath denied. When the Constitution requires a solemn oath _as to the future_, it leaves the guarantee of its performance, not to the speculations of other human beings, but to the strongest sanctions of conscience and religion. _Cf._ note 551.

[542] Quoted in 40 Rep. Am. Bar. Assn. 365 (1915).

The conduct of the investigation was thoroughly in harmony with its illegality. It was not based on any definite charges nor was it even limited to the accusations in the Resolution of January 7th. The affair had all the characteristics of an accumulative crime as described by Burke in the Wilkes case.[543] Whenever the Attorney General or his associate counsel thought of some new offense with which the Socialist Party could be taxed, it was lugged into the case and made a fresh reason for exclusion. The Resolution was construed as a roving commission to the Judiciary Committee, to find as many objectionable opinions of the Socialist Party as possible, on the theory that twenty-seven bad grounds[544] for exclusion might be rolled together and make one good ground. Inasmuch as there was no demarcation of counts in this rag-bag and ever-reopened indictment, no single fact had to be proved to the satisfaction of a majority of the Assembly. One member could vote to exclude the five Socialists because he thought they were as guilty under the Espionage Act as the three men who were convicted at Syracuse;[545] another because he considered Socialism threatened the family; a third to protect the church; a fourth, because Socialists sought to set up a Soviet in the United States; some one else, because he disliked the vote of Claessens against the military training of boys. Others might object on the ground that the party fostered the claims of conscientious objectors or worked for the repeal of the draft or opposed the conscription of labor or voted against large military appropriations. The range was large and every member could find a reason of his own. It was the Wilkes case over again:[546]

The very enumeration of so many grounds of expulsion implied
their separate weakness and insufficiency; while it was designed
to attract the support of members, influenced by different
reasons for their votes.

[543] P. 314, _supra_.

[544] See a list of these charges in _Socialist Brief_, 10; also the report of the Committee, _New York Times_, March 31.

[545] See p. 115, _supra_. The whole of Judge Garvin’s opinion in the Syracuse case was read into the _Record_, p. 492, and reprinted in _Assembly Outline_, 75. No facts or other reasons than this are given to establish the guilt of the five members under the Act.

[546] May’s _Constitutional History_, I, 316.

Few legal documents furnish more delightful reading than the _Outline_, as it is called, of “the case of the Assembly against the five Socialist Assemblymen,”—the title is a significant comment on the impartiality of a tribunal which constitutes itself both judge and prosecutor. This makes it clearer than ever that the Socialists were not excluded for any personal unfitness but for the supposed principles of the party. Against Orr and De Witt as individuals, nothing whatever is said. Claessens and Waldman are charged with intemperate speeches, which “breathe in every word the spirit of treason and revolution with thinly veiled phrases to escape the prosecutions of the federal agents.” In other words, because they spoke so as not to violate the Espionage Act, that makes it all the worse. Also Claessens is guilty of teaching at the Rand School. That is an institution which circulates the decrees of Soviet Russia, and has been convicted of publishing Nearing’s _Great Madness_. Also one of his fellow-instructors was imprisoned for leading raids on churches. Obviously, Claessens “stands for the overthrow of our government.” And Solomon at least has committed overt acts of undoubted enormity.

In 1692 the chief accusers of the Salem witches were a club of young girls who sent more than one old woman to her death by telling how they had seen her drink their blood or cause a yellow bird to sit on the minister’s hat where it hung on a peg in the pulpit.[547] In 1920 Ellen Chivers, a stenographer just under eighteen years old, testified that three years before when she was barely fifteen, she heard Solomon make a speech in Brooklyn, with an American flag and a red flag flying on his stand.[548] A detachment of soldiers rode up recruiting and asked to borrow his platform. She heard Solomon reply, “Lend you my platform? Can you borrow my platform? Huh; the gutter is good enough for you.” They spoke from their jitney and went on. Nor was this the worst. A band of music came by on a trolley-car, stopped about three minutes, and struck up the “Star-Spangled Banner.” And then in her presence and in the presence, she declared, of two policemen, “Mr. Solomon turned up his coat collar, put down his hat, and pulled it over his eyes, spit on the American flag and sat down.” And the police did nothing.

[547] Palfrey, _History of New England_, IV, 102; Hutchinson, _History of the Province of Massachusetts Bay_, II, 27.

[548] _Assembly Outline_, 71; _Record_, 705–723, for Chivers’ testimony.

The spy who is regularly employed by the government was brought into undesired publicity by the Colyer trial. The voluntary informer is also a recurrent feature of all prosecutions for opinion since the day of Titus Oates and beyond. This girl was a member of the American Anti-Socialist League and had attended weekly meetings for two years before she testified. She had not mentioned these incidents to any member of that society or to her sister or to any one else, until after the investigation began, when she wrote to Speaker Sweet, because she thought “it was the duty of any American to take the stand against one who has committed treason against their country.” The two policemen on the spot afterwards swore that no such disloyal acts occurred. The Attorney General’s brief reprints without question the testimony of Ellen Chivers.

Another group of charges was presented to appeal to Assemblymen who were not entirely convinced by Miss Chivers and to attack the Socialists who could not be accused of such open disloyalty. Candidates of the Socialist Party were said to be bound by certain pledges, which might conceivably operate to ruin the country, and were so inconsistent with their constitutional oath as to make it false. First, the National Socialist Constitution provides that Socialist office-holders who vote to appropriate money for military or naval purposes shall be expelled from the party. The New York Constitution makes it the duty of the Legislature to maintain a minimum militia of 10,000 men. Therefore they have disqualified themselves to take the oath to support this Constitution. Even if this oath were not obligatory, they have made themselves ineligible by promising to take a course which if supported by a majority of the Assembly would destroy the entire military organization of the state and tend to expose state and nation to destruction from its enemies without and within. The state’s right of self-defense gives it the right to exclude such traitors. Their intention to disregard the constitutional provision about the minimum militia is shown by their opposition in previous sessions to laws giving extra pay for the National Guard and pay while in federal service, also to laws for the expulsion of alien enemies from teaching in the public schools, punishing the desecration of the flag, establishing military training for boys, and conscripting labor. The Attorney General neglected to add that they also voted against the establishment of the Lusk Committee.

The Socialists replied that the Constitution was paramount. Inconsistent party pledges were rejected by virtue of their oath as Assemblymen. The National Party platform naturally failed to consider the militia requirement of a particular state, and they were ready to carry out whatever duty that requirement imposed. However, until some one knew better what it meant, other members of the Assembly had no right to define this duty for them[549] or say that it included extravagant appropriations to maintain far more than the constitutional minimum of 10,000 men. If a question of maintaining that minimum were presented, they would do so. They were not obliged to vote extras or conscript boys.

[549] That constitutional duties must be interpreted by the person obligated under the sanction of his official oath, Ops. of the Justices, 56 N. H. 576 (1875); Andrew Jackson, in United States Bank veto, quoted by W. M. Evarts, _Arguments and Speeches_, I, 445.

Still more flimsy is the charge that the Socialist legislators were to vote as a unit and obey the wishes of the party organization. This promise, the Republican Attorney General gravely explains, must not “be confused with party action in caucus where party men uniformly reserve the right to withdraw if a proposed measure violates their conscience or their patriotism or is not with party issues.”[550] And then a few days later the Republicans proposed to displace Floor Manager Adler because he voted against the unseating of the five members. Nothing can be more touching than the indignation which the bare possibility of political control by outsiders inspired in the henchmen of New York’s “invisible government”:[551]

It makes no difference what name you give, whether you call it
Fenton or Conkling or Cornell or Arthur or Platt, or by the names
of men now living. The ruler of the state during the greater part
of the forty years of my acquaintance with the state government
has not been any man authorized by the constitution or by the law.

[550] _Assembly Outline_, 13. _Cf._ Bryce, _Am. Commonwealth_, 3 ed., I, c. XIX, p. 204. See Hillquit’s remarks on the Roman augurs’ wink. _Socialist Brief_, p. 22. I omit to discuss the charge that the Socialists were required to resign if they violated the party platform, as this was a dead-letter.

[551] Elihu Root, _Addresses on Government and Citizenship_, p. 202 (at the N. Y. Const. Conv. of 1915).

The meat of the _Outline_ is the portrayal of the iniquities of Socialism. This is a very different affair from the body of economic principles which is attacked by Carver, Taussig, and other economists, none of whom was summoned as an expert by the prosecution. The _Outline_ conceives it as “a Revolutionary Party, having the single purpose of destroying our institutions and government and substituting the Russian-Soviet government, ... an anti-national party whose allegiance is given to the Internationale and not to the United States.” Its purposes, mass action and the general strike, are treasonable. For its crimes the five members are responsible, and more than that, for the acts of any other person in that party, whether or not he belongs to their particular faction. As Mr. Stanchfield, for the prosecution, openly stated:[552]

The whole theory of this investigation rests upon the proposition
that the Socialist Party, of which the five members under
investigation are confessedly, concededly members, has embarked
upon a program that calls for the overthrow of our form of
government, some assert by constitutional means, others by
violence. Now, assuming that that program is the basic charge
under investigation, then my argument runs along this line:
That every pamphlet, every declaration, every speech, every
statement of every men who is affiliated with or belongs to
that party, not necessarily in a technical sense of belonging
to it, but everybody who upholds those claims, who supports
those principles, who stands upon that platform, is bound by
the speeches, the sentiments, the writings, the books, the
publications of every other man affiliated with that association,
whether they were present at the time when it was made or they
were uttered, or whether they were absent.

[552] _Record_, 335.

No person who has followed with any intelligence the proceedings of the Socialist Party at the conventions of September, 1919, or May, 1920, can doubt that that party is as much divided into factions as any other. Nevertheless, the five members were held responsible on Stanchfield’s principle, not merely for the statements in the party platform but for the Debs speech at Canton, Ohio, statements in the Moscow manifesto, extracts from a book in Yiddish published by the Jewish Socialist Federation of America, all the articles contributed to the _American Socialist_, for everything that was said by speakers at meetings at which one of the assemblymen was present as well as for statements made in a letter by an organization to which he was bitterly opposed. This was guilt by association with a vengeance.

And finally the Attorney General corrects one member of the Committee in his misapprehension of thinking that the duty to disqualify for disloyalty rests with the people of the district. This, he says, misconceives the representative as an officer of the district and not of the state, and he shows the gravity of the error by an extract from Burke’s “Speech to the Sheriffs of Bristol”:

You choose a member indeed; but when you have chosen him, he is
not a member of Bristol, but he is a member of _Parliament_.

“Thoughts on the Present Discontents” had been more to the point. And, quoting more political scripture, he warns the Committee in Madison’s words against that sectionalism which leads state legislators to sacrifice the comprehensive and permanent interest of the state to the particular and separate views of the counties or districts where they reside.

When such testimony and arguments were admitted, the result was a foregone conclusion. The Committee recommended expulsion, the Assembly characteristically waited until April 1st, which was too late for a re-election, and then disregarding the maiden speech of Theodore Roosevelt, who, with all his inherited abhorrence of Socialism and pacifism, refused to condemn the Socialist Party as a conspiracy for a state of mind, expelled the five members by an overwhelming vote.[553] The Legislature proceeded to enact the bills drafted by the triumphant Lusk Committee, which not only throttle the Rand School, but exclude from the definition of a party under the Election Law any organization which advocates:

Principles, doctrines, or policies that tend, if carried into
effect, to the destruction, subversion or endangering of the
existing governments of the United States and of the State of New
York, and of the rights, privileges and institutions secured
under such constitutions.[554]

[553] _New York Times_, April 1st and 2nd.

[554] 2 _Review_, 422. Governor Smith vetoed all the Lusk bills in a stinging message.

Any person who is a member of such organization is made ineligible for public office. And then leaving the governor’s welfare bills untouched the New York Legislature adjourned, and Speaker Sweet proclaimed the session “a victory for undivided Americanism.”

Surely this event ought to free us from the tyranny of this word, which seems like some magic helmet to render the true qualities of the wearer invisible to those around him. The men who use the ideals of the founders of our Republic, not as an inspiration for high-minded action on their own part but as a test by which they may condemn and imprison and disfranchise their fellow-citizens, are as unpardonable as the persecutors who used the teachings of the Gospels to send men to the stake in this world and hell-fire in the next. Years ago William Graham Sumner commented:

Who dares say that he is not “American”? Who dares repudiate
what is declared to be Americanism? It follows that if anything
is base and bogus it is always labeled American. If a thing is
to be recommended which cannot be justified it is put under
“Americanism” .... Then we see what Americanism and patriotism
are. They are the duty laid upon us all to applaud, follow and
obey whatever a ruling clique of newspapers or politicians
chooses to say or wants to do.[555]

[555] _Folkways_, p. 177.

The absurdity to which our greatest state has descended in its frantic desire to suppress disloyalty cannot be entirely explained by the fear of Bolshevism, because the danger of that is far greater in European countries, which have large groups of Socialists in their legislatures unmolested. Nor is it entirely due to the activities of organizations like the Lusk Committee. Something more is needed to account for the statement of the _New York Times_ that the expulsion of the Socialists was as clearly and demonstrably a measure of national defense as the declaration of war again Germany.[556] Speaker Sweet and his associates would not have acted as they did had they not been assured of wide support, especially in the country districts. Much of the panic-stricken dread of Socialism is due to the sentiment that we must have unanimity of thought in this country. The surprising uniformity of American life has long excited attention from foreign observers.[557] Until recently we have had only a middle class without any proletariat or large group of extremely wealthy men. Since the issues of the Civil War died away, whatever few fundamental differences in opinion have existed have rarely coincided with party lines. A French writer in his biography of President Wilson remarks that a foreigner on coming to this country does not understand our political parties. In Europe every party has a platform which represents a definite policy, like monarchy, clericalism, Socialism. He finds nothing of the kind here. Why do we have two parties when they do not differ? Halévy explains that the Republican and Democratic parties are like two great department stores, such as the _Bon Marché_ and the _Louvre_. Both sell very much the same things. Some people go entirely to one, some go entirely to the other, some go first to one and then to the other. They are there because they have always been there.[558] But now a new party has entered the field which has real issues, vital one way or the other to all of us and hence the antagonism of its opponents is immediate and bitter. When it shows signs of gaining real strength then there is an energetic effort to stamp it out, which likes to base itself on patriotism and self-preservation.

[556] Editorial of April 2nd.

[557] See Bryce’s _American Commonwealth_, II, c. CXII.

[558] Daniel Halévy, _Le Président Wilson_, Paris, 1918, p. 109.

It is not by such methods that the nation can be saved from the evil tendencies of any doctrine. The great strength of our argument against violent-talking radicals in the past has been that we could say to them: “It is true that in the countries that you came from you naturally resorted to violence because you had no vote and could not abolish the abuses to which you objected. It is not so in this country. If you want a change, go and vote for it, vote for men who have promised to bring it to pass.” The New York Assembly has deprived us of this argument in the state where the left wing is strongest. It has appealed to force as the normal method for settling conflicts between ideas. It has disregarded the counsel of its wisest men to take that of the Lusk Committee, whose whole existence has been a violation of constitutional rights. It has disfranchised 60,000 American citizens on the basis of a caricature of Socialism and the testimony of Ellen Chivers. It has repudiated government by representation and substituted government by misrepresentation.