Chapter VI: John Wilkes, Victor Berger, and the Five Members (2)

[468] Volume II of _Berger Hearings_ contains the full record of the trial. The charge is also in Bull. Dept. Just., No. 186. Comment from the Socialist side is in _American Labor Year-Book_, 1919–20, pp. 97–100, and the _Socialist Review_, February, 1920. O’Brian speaks of “the dignity and fairness” which characterized the work of the court. 52 Rep. N. Y. Bar Assn. 310 (1919).

When Berger presented himself to the House of Representatives to be sworn in, it was charged that he was ineligible, and the question was referred to a special committee, which reported[469] for reasons hereafter stated that he was not entitled to take the oath of office or hold a seat as Representative. At the same time the candidate with the next highest number of votes, Joseph P. Carney, had claimed the seat, on the ground that since Berger was ineligible those persons who had voted for him should be considered to have deliberately thrown away their ballots—in the words of an English judge, just as if they had voted “for the man in the moon.”[470] Although this is the English law, and a Wisconsin decision had reached the same result where the leading candidate was known at the time of the election to be dead,[471] the Congressional practice is otherwise, and holds that electors ought not to be disfranchised in such a fashion, especially when they supposed the leading candidate to be eligible.[472] It would be absurdly harsh to presume that those who voted for Berger in November knew that he was disqualified, just because a jury convicted him the following January. Consequently, Carney gained nothing by his contest, but on November 11, 1919, the House of Representatives with only one dissenting member, Voigt of Wisconsin, declared Berger’s seat vacant.[473]

[469] House of Representatives, 66th Cong., 1st Sess., Ho. Cal. No. 91, Rep. No. 413, hereafter called Berger Report.

[470] Lord Campbell, C. J., in Regina _v._ Coaks, 3 E. & B. 249, 254 (1854).

[471] Beresford-Hope _v._ Lady Sandhurst, 23 Q. B. D. 79 (1889). Women were allowed to vote for County Councillor and were supposed to be eligible to hold the office. The highest candidate was a woman. The court seated the highest male candidate. State _ex rel._ Bancroft _v._ Frear, 144 Wis. 79 (1910).

[472] Smith _v._ Brown, 1 Hinds’ Precedents 448; _Re_ Abbott, 1 _ibid._ 478. _Accord_, P. _ex rel._ Furman _v._ Clute, 50 N. Y. 451 (1872).

[473] The debates on the two exclusions are in _New York Times_, November 12, 1919, January 11, 1920.

The Governor of Wisconsin ordered a special election on December 19, 1919. The Republicans and Democrats nominated a fusion candidate, H. H. Bodenstab, and the German paper, the _Herold_, appealed to all German-Americans to support their compatriot against Berger. The Socialist vote was increased by nearly 8,000 over the first election, Berger receiving 25,802 ballots to 19,800 for his opponent. On January 10, 1920, the House again refused to seat him. This time, six Representatives voted in his favor, including Floor Manager James R. Mann, who said during the debate:

Mr. Berger has been elected anew to the House by a majority of
those who vote in his district and to me the question is whether
we shall maintain inviolate the representative form of government
where people who desire changes in the fundamental or other laws
of the land shall have the right to be represented on the floor
of this House, when they control a majority of the votes in a
Congressional district.

I do not share the views of Mr. Berger, but I am willing to meet
his views in an argument before the people rather than to say we
shall deny him the opportunity to be heard when selected by the
people in the legal form and invite them, in effect, to resort to
violence.

Has it come to the point that a man who believes certain things
cannot be heard? His people, his constituents, desire him to
represent them. It is not our duty to select a representative
from this Congressional district. That is the duty of the people
back at home. We cannot take the attitude of refusing to permit
the voice of the people of a district to be heard by their own
selection with safety to the future of the country.

Berger afterwards stated that he was accused of calling the late war a capitalist war, and that the President had said the same thing at St. Louis on September 5, 1919, when he declared:

Why, my fellow-citizens, is there any man here or woman who does
not know that the seed of war in the modern world is industrial
and commercial rivalry? This war was a commercial and industrial
war. It was not a political war.

Within an hour after Berger was unseated, the Socialist committee in Milwaukee announced his renomination for a third contest. However, he has not yet equalled the record of Wilkes, for the Governor of Wisconsin has decided that another special election would be too expensive. Meanwhile, Berger has been forbidden to speak in several cities, including that founded by Roger Williams, and Jersey City forcibly ran him out of town. Whatever the legal merits of his case in the courts and Congress, his enemies like those of Wilkes have adopted against him the very methods that vastly increase his influence.

The question whether a person who is duly elected to either branch of Congress is rendered ineligible because during a war he expressed opinions opposed to its continuance and the methods by which it was waged is full of difficulties. It is sometimes supposed that the clause in the Constitution,[474] “Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members,” gives a majority the unlimited right to exclude any one. The problem is less simple than that. Each house is to act as “judge,” that is, it must decide the facts by applying to them rules of law, and must not proceed arbitrarily. For instance, the majority has no right to exclude the minority by a new Pride’s Purge. It is undoubtedly true that if the House of Representatives should exclude a man on some whimsical ground, no appeal would lie from its action. Neither is there any appeal from the Supreme Court, but for this very reason it feels a grave responsibility to decide according to law. In the same way, the House has only the power to decide whether the man received the proper number of votes and satisfies the qualifications established by law, and it ought not to create new requirements for a particular case any more than a criminal judge ought to invent new crimes.

[474] U. S. Cons., Art. 1, § 5. That this a judicial proceeding, to be decided in accordance with legal principles as established by precedents, cases of Abbott, 1 Hinds’ Prec. 478; Lorimer, in Webb and Pierce, Senate Election Cases, 1061; and page 340, _infra_.

What then are the lawful qualifications for membership in the House of Representatives? The authorities disclose two divergent views. The first is, that the Constitution contains all the qualifications, and that if a district elects a man who conforms to its requirements, he must be seated, no matter how unfit he is considered by the rest of the House. His unfitness is not a reason for exclusion by a majority vote, but may if continuing in character justify his expulsion by a two-thirds vote. The second view holds that additional tests may be imposed by statute or possibly in accordance with established usage to cover obvious cases of unfitness, such as conviction of crime. Since the committee report in the Berger case held that he should be unseated, even under the first view, we can postpone the controversy whether his conviction was a bar, until after discussing his eligibility under the terms of the Constitution.

The original requirements are threefold:[475]

No Person shall be a Representative who shall not have attained
to the Age of twenty-five Years, and been seven Years a Citizen
of the United States, and who shall not, when elected, be an
Inhabitant of that State in which he shall be chosen.

[475] U. S. Cons., Art. I, § 2.

Berger satisfied all these. However, the committee reported that he was excluded by a fourth qualification, enacted in 1868 by section 3 of the Fourteenth Amendment:

No person shall be a Senator or Representative in Congress, or
elector of President and Vice President, or hold any office,
civil or military, under the United States, or under any State,
who, having previously taken an oath, as a member of Congress, or
as an officer of the United States, or as a member of any State
legislature, or as an executive or judicial officer of any State,
to support the Constitution of the United States, shall have
engaged in insurrection or rebellion against the same, or given
aid or comfort to the enemies thereof. But Congress may by a vote
of two-thirds of each House, remove such disability.

At the outset the committee decided not to be governed by the action of the judge and jury at Chicago, but to review all the evidence at that trial, the proceedings about the exclusion of the _Leader_ from the mails, and the fresh testimony introduced at the hearings. The conclusions of fact were as follows:[476]

After a careful consideration of all the evidence, in the opinion
of your committee the admitted acts, writings, and declarations
of Victor L. Berger and of the men with whom he was associated
in the management and control of the Socialist Party from the
time of the entrance of this country into the war until their
indictment by a Federal grand jury, giving such acts and the
language of the writings and declarations their ordinary everyday
meaning and without considering any other evidence, clearly
establishes a conscious, deliberate and continuing purpose and
intent to obstruct, hinder, and embarrass the Government of the
United States in the prosecution of the war and thus to give
aid and comfort to the enemies of our country. The writings and
activities of Mr. Berger and his associates could have had no
other purpose. That Victor L. Berger was disloyal to the United
States of America and did give aid and comfort to its enemies at
a time when its existence as a free and independent Nation was at
stake there can not be the slightest doubt.

[476] _Berger Report_, 7.

Even if Berger’s guilt under the Espionage Act be considered as established, three replies are conceivable to the proposition that such guilt renders him ineligible under the Fourteenth Amendment. (1) This provision may relate to the Civil War only, like section 4 of the same Amendment about pensions and Confederate debts. Since section 1, forbidding states to deprive citizens of the United States of life, liberty, or property without due process of law, has been construed to protect much more than the rights of emancipated slaves, the committee rejected this argument. (2) Early in the Spanish War, in order to cement good feeling between North and South, both houses by the necessary two-thirds vote adopted a blanket resolution, “that the disability imposed by section three ... heretofore incurred is hereby removed.”[477] The committee held that this could not apply to a subsequent disability. (3) Berger’s violation of the Espionage Act was not a bar under the Fourteenth Amendment because it did not amount to treason. This is a very important point and it is an odd commentary on legislative justice that every one involved in the Berger case, except Representative Mann, overlooked it completely and assumed that “aid and comfort to the enemy” was synonymous with guilt under the Espionage Act. Of course, this phrase is often employed loosely in conversation and Congressional debates to include all sorts of language that is considered disloyal in war time, but legally these words have a technical significance, and they are used in a statute or in the Fourteenth Amendment in the same sense as in the clause of the Constitution defining treason.[478] Therefore, the acts of aid and comfort which would disqualify Berger from serving in Congress under the Amendment (if section three is still in force) must be of the same general character with those necessary to convict him of treason.

[477] Act, June 6, 1898, c. 389.

[478] Art. III, § 3: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” The omission of any mention of adherence in the Fourteenth Amendment is immaterial. Judge Leavitt said in 1861 (1 Bond 611): “The words in the definition, _adhering to their enemies_, seem to have no special significance, as the substance is found in the words which follow—_giving them aid and comfort_.” Judge Learned Hand said in U. S. _v._ Robinson, 259 Fed. 685, 690 (1919): “The words ‘adhering’ must be taken as defined by the phrase ‘giving aid and comfort.’” The U. S. Supreme Court has reached the same result in construing the Captured and Abandoned Property Act of March 12, 1863 (12 Stat. L. 820), which allowed the owner of any captured property to reclaim its value from the United States, on proof that he had “never given aid or comfort to the present rebellion.” In Young _v._ U. S., 97 U. S. 39, 62 (1877), the Court held, through Chief Justice Waite, that although a British claimant could not commit treason since he owed no allegiance, “the acts of aid and comfort which will defeat a suit must be of the same general character with those necessary to convict of treason.... It is sufficient if he has done that which would have made him a traitor if he had owed allegiance to the United States.”

Was Berger guilty of treason? In answering this question, we must not be misled by colloquial usage. Mr. Roosevelt denounced the St. Louis Socialist platform as “treason,” and “traitor” is a heart-warming conversational epithet for any one who wants a war stopped, but lawyers and legislators must be less vague in accusing a man of a crime that is punishable with death. Chief Justice Marshall said long ago[479] that treason should not be extended by construction to doubtful cases, and there has never been a decision that talking against a war is treason. If it were, Vallandigham, Milligan, and the other Copperheads would surely have been prosecuted for this crime. The few writers[480] who assert that the Espionage Act of 1917 created no new crimes, but that causing insubordination in the armed forces and obstructing enlistment are also treason,[481] are forced to rely on one or two sweeping judicial definitions, like Lord Reading’s charge in the trial of Sir Roger Casement, that it is giving aid and comfort to the enemy to do any act which tends to strengthen them or tends to weaken the power of one’s own country to resist.[482] So broad a statement would if taken literally revive all the evils of constructive treason, but it must be limited with reference to the particular facts which the jury were considering. Casement had issued a proclamation to Irish prisoners in Germany urging them to form a regiment in the German army.[483] The use of words in an attempt to gain recruits for the enemy is absolutely different from telling your fellow-citizens that they ought to stop fighting. It may be that the latter is so dangerous that it must be punished, but only as sedition, which consists of _words_ creating disaffection. Treason requires overt _acts_ of direct assistance to the enemy. The distinction is fundamental. It is inconceivable that the trivial utterances which were held criminal under the Espionage Act because of their bad tendency and the supposed intention to hinder the war were already subject under the treason statute to a death penalty.

[479] _Ex parte_ Bollman and Swartwout, 4 Cranch 77, 127 (1807).

[480] Charles Warren, “What Is Giving Aid and Comfort to the Enemy?” 27 Y. L. J. 331 (1918); Thomas F. Carroll, 17 _Mich. L. Rev._ 660 (1918).

[481] If so, the treason statute would have rendered the Espionage Act unnecessary. Instead the treason statute proved well-nigh useless during the war. See p. 41, _supra_.

[482] Rex _v._ Casement [ 1917], 1 K. B. 98, 133. Warren, _op cit._, quotes other judges. They plainly refer to language used to cause men to join the enemy and participate in his operations. Such words form an element in acts of direct aid. These judges are not speaking of expressions of opinion about the injustice of a war, even if intended to deter men from enlisting in one’s own army. _Cf._ note 49.

[483] It is doubtful if even this would be treason in this country, inasmuch as no one was persuaded to enlist. Respublica _v._ Roberts, 1 Dall. 39 (Pa. 1778). But see U. S. _v._ Robinson, 259 Fed. 685, 690, on unsuccessful attempts to aid. This point in the Casement trial received no attention from the Court of Appeal, which was entirely occupied with the question whether treason could be committed outside England, answered in the affirmative. It is interesting to Americans to find that one of the authorities relied on was a legal opinion rendered in 1775 that certain persons in New Hampshire could be prosecuted for treason.

This distinction is clearly brought out by the kind of conduct which has been held to be “giving aid and comfort to the enemy,”[484] for example, furnishing money, troops or arms, saltpeter for gunpowder, steamers for blockade running, delivering up deserters and prisoners, and actually joining the enemy in person. Contrast these acts, which advance the cause of the enemy by their immediate effect, with newspaper articles attacking the war, which may encourage the enemy but do not promote his success in any tangible or measurable way. The result is indirect and purely mental. It is true that words do sometimes constitute treason, as when a letter is sent to the enemy containing military information, or even a wireless message.[485] Here language has all the qualities of action, because it furnishes the enemy with something he can use. It is treason if he be given a gun to batter down a fort or a photograph of its plan or a written description. That the last is in words is immaterial. But if words are used in a speech demanding immediate peace, this is not assistance by acts at all, and furnishes the enemy with nothing but emotions of dubious value. Judges have frequently declared that expressions of opinion are not treason.[486] It is interesting to note that even in the excitement of the Civil War, when Congress was passing on the qualifications of members under the much broader terms of the Test Oath Act of 1862, soon to be more fully discussed, a line was usually (though not always) drawn between language adverse to the North, even though clearly intended to embarrass the conduct of the war, and definite acts of assistance to the South, such as participation in an ordinance of secession or the offer of a military invention to Jefferson Davis. In the Berger case, however, the committee did not consider at all whether he was guilty of acts of treason. There is nothing in the record to show any aid to Germany except by the indirect, intangible method of creating a body of opinion opposed to the continuance of the war. And this is a risk which a nation governed by public opinion must take, which ours has taken by guarantying freedom of speech. To call it treason is contrary not only to the First Amendment but to the law of treason. Therefore, Berger did not in any legal sense give aid and comfort to the enemy, and he was not barred from the House of Representatives by the Fourteenth Amendment.

[484] Carlisle _v._ U. S., 16 Wall. 147 (1872); U. S. _v._ Fricke, 259 Fed. 673 (1919); Young _v._ U. S., 97 U. S. 39 (1878); U. S. _v._ Hodges, 2 Wheel. Cr. 477 (1815); King _v._ Ahlers [ 1915] 1 K. B. 616. For other examples see Warren, _op. cit._, especially on p. 347 a.

[485] U. S. _v._ Robinson, 259 Fed. 685 (1919) (invisible ink); U. S. _v._ Werner, 247 Fed. 708. See Warren, _op. cit._

[486] Charges to Grand Jury, 5 Blatchf. 549, 550 (1861): “Words, oral, written, or printed, however treasonable, seditious or criminal of themselves, do not constitute an overt act of treason within the definition of the crime”; _accord_, 1 Bond 609, 612 (1861); 2 Sprague 292, 294 (1863).

Consequently, if Berger’s exclusion is to be justified, it can only be on the second theory already mentioned, that the House of Representatives had power to impose qualifications not mentioned in the Constitution. The instances of additional qualifications mentioned in the _Berger Report_ were imposed by statutes like the Test Oath Act of 1862 or the Edmunds Act abolishing polygamy. No such statute applies to Berger, so that he could only be barred if additional requirements can be based on unwritten law or the will of a single branch of the legislature. This question will be examined at length in connection with the New York Socialists. It will be seen that there is some authority that a man who has been convicted of crime _after_ his election to the legislature should not be allowed to occupy his seat, but that there is a sharp disagreement whether he should be excluded or expelled.[487] The reason for declaring the seat vacant is that his constituents should have the opportunity to reconsider their votes if they were cast in ignorance of a fact which so materially affects his fitness for the office. This argument supports the first exclusion of Berger, but not the second, for the overwhelming vote received by him at the second election, after his conviction, made it clear that the electorate considered guilt under the Espionage Act no disqualification for their representative in Congress. The Wilkes case established the principle that such a decisive expression of opinion given with full knowledge of the offense of sedition should not afterwards be overridden by one branch of the legislature. Indeed, the House of Representatives went one step farther than the House of Commons, for Wilkes when disqualified was in prison and wholly incapable of serving, but Berger was out on bail pending an appeal. His conviction might be reversed and he was capable of taking his seat. An American precedent is Matthew Lyon, who was elected to Congress by voters who had full knowledge of his prosecution under the Sedition Act of 1798. He was allowed to qualify, and when he was subsequently convicted and imprisoned the House of Representatives by a close vote refused to expel him.[488] The Wilkes and Lyon cases are opposed to the belief of some persons that sedition is more of a disqualification than other crimes because it involves a breach of allegiance. On the contrary, the opinion of the voters about a conviction for a political crime is entitled to peculiar respect. Such crimes do not usually arise from an individual malevolence, as do murder and robbery, but from political, economic, or ethical views which are shared by a group, for instance, of pacifists or Socialists, and which are considered dangerous because they clash with the will of the majority. The election of such a criminal is in effect an approval of these views by the voters of his district, so that the legislature by excluding or expelling him denies expression to a political, economic, or ethical theory which is held by a considerable mass of the electorate. The tide of public opinion with regard to disloyal utterances is very likely to vary with time and locality. The penalty affixed by the statute sufficiently guards against their dangerous consequences in the emergency of war. If an additional penalty not included in the law is imposed by one branch of the legislature after hostilities have ceased, the result is to block changes in public opinion, whereas the theory of democratic government is that such changes shall find an immediate and ready expression through the ballot.

[487] See p. 344, _infra_. _Berger Report_, p. 10, says that the power of expulsion is limited to causes arising out of the conduct of a member after his induction into office.

[488] 2 Hinds’ Precedents 850.

Lincoln’s principle[489] that the nation must be able to protect itself in war against utterances which actually cause insubordination and obstruct the raising of armies may justify some of the Espionage Act convictions, but his policy was absolutely opposed to the annexation of political disqualifications when the emergency had passed. Berger’s utterances were far less dangerous in their tendency than those expressed by many persons who took office unmolested during the Civil War. A large number of Democrats were elected to Congress in 1864 on a platform drafted by the notorious Vallandigham, which declared the war a failure.[490] The reasoning of the Berger committee would have allowed the Republican majority in Congress to exclude the Democratic minority. Apart from the fact of conviction, the conduct of these men furnishes a close analogy to Berger, much closer than the persons excluded under the Test Oath Act, most of whom had committed treason, while a few others came from Border States and had definitely identified themselves with the South. The Mexican War affords more honorable precedents for the principle that men who oppose a war in public discussion should afterwards be sworn in at the National Capitol without question. Daniel Webster said at a public meeting in 1847: “We are, in my opinion, in a most unnecessary and therefore a most unjustifiable war.” Henry Clay asked: “Must we blindly continue the conflict, without any visible object, or any prospect of a definite termination?... It is the privilege of the people in their primary assemblies, and of every private citizen, however humble, to express an opinion in regard to the purposes for which the war should be continued.” Charles Sumner outdid Berger in vituperation: “The Mexican War is an enormity born of slavery.... Base in object, atrocious in beginning, immoral in all its influences, vainly prodigal of treasure and life; it is a war of infamy which must blot the pages of our history.”[491] The additional element of conviction in the Berger case should be limited in its effect to the statutory penalty and should not overthrow the principle recognized in the cases just mentioned and many others, that variations of public opinion with respect to a war, especially if it is past, should be allowed to reflect themselves in the national legislature without interference. It is significant that all the Entente powers, except Japan, have admitted to their legislatures without any hesitation Socialists who opposed the war as vigorously as Berger, with the same intention to bring it to an immediate close. Indeed, some of the Italian Socialists were elected while serving prison sentences for their militant anti-war activities.[492]

[489] P. 117, _supra_.

[490] J. F. Rhodes, _History of the United States_, IV, 522 ff.

[491] _Berger Hearings_, I, 712, 713. On the War of 1812, see Beveridge’s _Marshall_, IV, c. I.

[492] _Socialist Review_, February, 1920, p. 159.

Therefore, although Berger’s statements in the _Milwaukee Leader_, before the committee, and in Congress at the time of his exclusion, entitle him to no personal sympathy, nevertheless the twofold denial of his seat was, apart from all questions of legality, a great mistake and a wrong to the voters of the fifth district of Wisconsin.

The action of the House of Representatives has, however, still more serious and far-reaching aspects. If it had been based simply on Berger’s conviction its effect would be limited to men who have been actually convicted under the Espionage Act, although if such were its ground, it would have been desirable to follow the view of the minority member of the committee, Mr. Rodenberg, and suspend legislative action until the final result of the prosecution had been reached by the Circuit Court of Appeals. The great evil of the case is that the House of Representatives and its committee assumed the power to go behind the conviction, and expressed the view that without any conviction at all Berger could be deprived of his seat because of his opposition to the war. The chairman of the committee, Mr. Dallinger, said in the debate upon the first exclusion:

The one and only issue in this case is that of Americanism.
It is whether a man who in 1911 took an oath as a member of
the House to support the Constitution of the United States and
who, when this country declared war against the Imperial German
Government, became the head and front of an organized conspiracy
to hinder, obstruct, and embarrass the Government in its fight
for existence, should be admitted to membership in this House
simply because a constituency in one of our States has seen fit
to give him a plurality of its vote.

This issue is far broader than the question of a conviction for
a violation of a particular statute by a court in Chicago, an
appeal from which may be set aside by a higher court on technical
grounds, and your committee is convinced upon all the facts and
upon all the precedents in this House that Victor L. Berger
should be excluded from membership, and that the question should
be determined by the House here and now. In our opinion the House
expects it; the men who fought for their country in the great war
expect it; the entire country expects it.

Therefore, while the precise legal ground of the Berger exclusion was the Fourteenth Amendment, the case gave public currency to the broad proposition that “disloyalty” during a war would bar a duly elected representative. Thus long after a war was over, a legislature could without any previous judicial condemnation conduct an inquiry into the mental state of a man during the war and the tendency of his utterances to discourage the national cause, just the kind of investigation which is shown in my second chapter to have proved so vague and unsatisfactory in the hands of an impartial judge and jury and which was justified if at all only by the great necessities and dangers of the war. Furthermore, the conduct for which Berger was convicted and excluded was said by him and regarded by many of his opponents to be that of the Socialist Party generally, so that if conviction were an immaterial factor as Mr. Dallinger said, Berger’s ineligibility could naturally be extended to any Socialist. Thus the popular impressions created by the Berger case paved the way for one of the most astonishing episodes in American political life.

V. _The Five Socialist Members of the New York Assembly_

Then stood there up one in the council, a Pharisee, named
Gamaliel, a doctor of the law, had in reputation among all the
people, and said unto them: “Ye men of Israel, take heed to
yourselves what ye intend to do as touching these men. Refrain
from these men and let them alone: for if this counsel or this
work be of men, it will come to nought; but if it be of God,
ye can not overthrow it; lest haply ye be found even to fight
against God.”—_The Acts of the Apostles._

On January 7, 1920, just before the second exclusion of Berger, and while the front pages of the press were still full of the great conspiracy which would have overthrown the nation had it not been for the New Year’s round-up of four thousand left-wing radicals, the New York Legislature opened its session. Among the members of the Assembly or lower house were five Socialists, Claessens, Solomon, Waldman, De Witt, and Orr. The Socialist Party of New York was a legally recognized party under the Election Law,[493] so that its candidates had as much right on the ballot as Democrats or Republicans. All these Socialists except De Witt had previously served in the Assembly. The opposition of the party to the war had aroused no objection to its representatives at any time during the conflict, even when ten of them took their seats at Albany just before the Spring Drive of 1918. And on this day, in 1920, the five members took office without interference, swearing that they would support the Constitution of the United States and that of New York, and discharge the duties of their office to the best of their ability, and that they had not influenced votes by bribe or promise. The New York fundamental law prescribes this oath and makes it all-sufficient:[494]

No other oath, declaration or test shall be required as a
qualification for any office of public trust.

[493] Sec. 3 (9) “The term ‘party’ means any political organization which at the last preceding election for governor polled at least fifteen thousand votes for governor.” The Socialist candidate in 1918 received over 120,000.

[494] N. Y. Const., Art. XIII, § 1.

They occupied their seats and entered into all the business of the day, participating in the organization of the House and voting for Speaker and other officers. These proceedings occupied upwards of two hours.

Suddenly the newly-elected Speaker, without notice or motion, directed the Sergeant-at-Arms to present the five Socialist members before the bar of the House.[495] The surprised men were paraded down into the well of the Assembly chamber in front of the Speaker’s rostrum, in full view of their fellow members and hundreds of guests, who crowded the galleries and the floor to witness the ceremonies of the opening day. There they were lined up with the Sergeant-at-Arms on guard, while the Speaker addressed them:

You are seeking seats in this body, you who have been elected on
a platform that is absolutely inimical to the best interests of
the State of New York and of the United States.

[495] _Briefs_, and _New York Times_, January 8, 1920.

He then declared that the Socialist Party was not truly a political party, but a subversive and unpatriotic organization, and informed them that if the House should adopt a resolution declaring their places vacant they would be given an opportunity to appear before a tribunal to prove their rights to a seat in the Assembly.

A resolution[496] drafted by the Attorney General in his capacity as counsel for the Lusk Committee was presented. This did not even recite that the members were charged with certain offenses, but stated facts as if already proved, an Alice-in-Wonderland performance of “sentence first—verdict afterwards.” It declared that they were members of the Socialist Party of America, which adhered to the revolutionary forces of Soviet Russia and endorsed the principles of the Communist International of Moscow, and this was pledged to the forcible and violent overthrow of all organized governments. They agreed to be guided by the party constitution and platform, and could be expelled from the party for disobeying the instructions of the Executive Committee, which might include aliens. The party by its St. Louis platform had opposed the war, and thereby stamped itself and all its members with an inimical attitude to the best interests of New York and the United States. These five members had subscribed to its principles and its aims and purposes against the government. They had been connected with an organization convicted of a violation of the Espionage Act. Therefore, it concluded, they were denied seats in the Assembly “pending determination of their qualifications and eligibility to their respective seats”; and the investigation of their qualifications and eligibility was referred to the Committee on Judiciary. The roll-call was then taken and the five Socialists were called upon to vote as members. After the passage of the Resolution they were hustled by the Sergeant-at-Arms out of the chamber, where their seats remained vacant for the remainder of the session, to the disfranchisement of sixty thousand voters of the City of New York.

[496] _Record_, p. 367.

In one of those magnificent decisions whereby the Supreme Court of the United States in former years fortified the civil liberties wrested from authority by the long struggles of the seventeenth and eighteenth centuries and proclaimed in the American Bill of Rights, Justice Bradley warned us that illegitimate and unconstitutional practices get their first footing by silent approaches and slight deviations from legal modes of procedure.[497] Since the 15th day of June, 1917, the nation had been led on by its panic-stricken fear of adverse opinion to abandon one national tradition after another. Every unheeded prediction of the handful of liberals was more than fulfilled. The Espionage Act was only to punish interference with recruiting and military discipline. It was used against all prominent opposition to the war. Every one agreed that freedom of speech meant the absence of previous administrative restraint on political discussion—and the Postmaster General was allowed to establish a whimsical censorship of the political press and maintain it long after the last American soldier had been demobilized. Suppression was said to be only a war measure. The states prolonged it into peace, and the Attorney General of the United States begged Congress to imitate them. Radical aliens were put under control, and a similar law was demanded for radical citizens. One by one, the right of freedom of speech, the right of assembly, the right to petition, the right to protection against unreasonable searches and seizures, the right against arbitrary arrest, the right to a fair trial, the hatred of spies, the principle that guilt is personal, the principle that punishment should bear some proportion to the offense, had been sacrificed and ignored. Here and there a solitary and despised protest—the rest was silence. And now the waves of hysteria dashed against the very foundation of American life, the right of the people to elect their own rulers. Berger was excluded after he was convicted of crime, but these men were excluded without any conviction, without any crime, without any trial, from the offices which they had taken with all the qualifications and formalities prescribed by the fundamental law. At last the leaders of thought were awakened to the realization that a government cannot be saved, is not worth saving, at the cost of its own principles.

[497] Boyd _v._ U. S., 116 U. S. 616, 635 (1885).

The successor of Jefferson had taken no step to stop the encroachments on freedom of speech, had signed his name to both Espionage Acts, had allowed his officers without a reproach to censor and raid and arrest as they chose. It was reserved for the Republican presidential candidate at the election of 1916 to become the champion of Anglo-Saxon liberties. Charles Evans Hughes, leader of the American bar, former Governor of New York, former Justice of the Supreme Court, within forty-eight hours of the Albany imbroglio, wrote Speaker Sweet that it was absolutely opposed to the fundamental principles of our government for a majority to undertake to deny representation to the minority through the men who had been elected by a ballot lawfully cast.[498]

If there was anything against these men as individuals, if they
were deemed to be guilty of criminal offenses, they should have
been charged accordingly. But I understand that the action is
not directed against these five elected members as individuals
but that the proceeding is virtually an attempt to indict a
political party and to deny it representation in the Legislature.
This is not, in my judgment, American government.

Are Socialists unconvicted of crime, to be denied the ballot? If
Socialists are permitted to vote, are they not permitted to vote
for their own candidates? If their candidates are elected and
are men against whom, as individuals, charges of disqualifying
offenses cannot be laid, are they not entitled to their seats?...

I understand that it is said that the Socialists constitute a
combination to overthrow the Government. The answer is plain. If
public officers or private citizens have any evidence that any
individuals, or group of individuals, are plotting revolution and
seeking by violent measures to change our Government, let the
evidence be laid before the proper authorities and swift action
be taken for the protection of the community. Let every resource
of inquiry, of pursuit, of prosecution be employed to ferret
out and punish the guilty according to our laws. But I count
it a most serious mistake to proceed, not against individuals
charged with violation of law, but against masses of our citizens
combined for political action, by denying them the only resource
of peaceful government; that is, action by the ballot box and
through duly elected representatives in legislative bodies.

[498] _New York Times_, January 10, 1920; Sweet’s reply, January 11.

Speaker Sweet, after consultation with the Lusk Committee, replied that the Socialists were not expelled, but merely subjected to an investigation by the body which was charged by the Constitution with the authority to inquire into the fitness of those who seek seats in the Assembly. The question presented squarely was whether the different organizations which they sought to represent in the legislature advocated methods and employed tactics to overthrow our form of government, which would justify their exclusion from participating in legislative proceedings. He thus characterized the proceeding, as did the Attorney General of New York,[499] not as an inquiry into the personal unfitness of these men or into the overt acts of any one, but into the opinions and words of whole groups. Finally he stated that criticism of the Assembly action without full knowledge of the facts gave aid and comfort to those elements of our society which seek the destruction of our institutions.

[499] _Ibid._, January 9.

Nevertheless, criticism poured in, not only from Socialists and labor unions, but from large conservative groups like the National Security League. The New York Board of Aldermen refused to follow the example of the Assembly as to its Socialist members. For once the _Tribune_ and the _Review_ stood shoulder to shoulder with the _New Republic_ and the _Nation_, and outdid them in the vigor of their condemnation. The Bar Association of the City of New York adopted resolutions offered by Governor Hughes, opposing any attempt to exclude legislators because of their affiliation with any political party, when they are seeking by constitutional and legal methods to bring about any change in the Constitution and laws. The Association appointed a committee of non-Socialists to appear before the Judiciary Committee of the Assembly and safeguard the principles of representative government.[500] No action could have done more to strengthen the confidence of workingmen in the public spirit of the bar.

[500] _New York Post_, January 14.

The Assembly paid no more attention to these protests than the House of Commons to the remonstrances of Burke and the voters of England on behalf of Wilkes. The Assembly was past saving, but the nation was saved. The American people, long bedrugged by propaganda, were shaken out of their nightmare of revolution. The red terror became ridiculous on the lips of Speaker Sweet. A legislature trembling before five men—the long lost American sense of humor revived and people began to laugh. That broke the spell. The light of day beat in not only upon the Assembly, but upon Congress and the Department of Justice. Never again did the hysteria of the past year return. The raids of January 2d were flood-tide, and with Governor Hughes’ letter on the 9th, the ebb set in. Then followed the opposition of the conservative press and sober speakers to the pending federal sedition bills, the disclosures in the Colyer trial of the illegal character of the New Year’s round-up, the decision of Secretary Wilson legalizing the Communist Labor Party, the wholesale cancellation of deportation warrants. The American people owe a lasting debt of gratitude to the New York Assembly.

But there was no return to sanity in Albany. On January 20th the investigation of the five members began before the Judiciary Committee, which was appointed by the Speaker who had taken such a definite stand against them. At the outset the Bar Association committee appeared, with Mr. Hughes as its chairman, but was not allowed to participate in the proceedings. Before withdrawing it filed a brief and these recommendations:[501]

That the Judiciary Committee at once report to the Assembly
that there is no question properly before the Judiciary
Committee of any disqualification on the part of these members;
that no charges against these members of any constitutional
disqualification, or of any misconduct in office or of any
violation of law on their part have been properly made, that
the members under suspension should at once be restored to
the privileges of their seats and that if it be desired to
present any charges against them of any violation of law, such
charges should be properly formulated, and that until such
charges, properly laid, have been established by proof, after
due opportunity to be heard, these members shall enjoy all the
privileges of their seats in recognition of their own rights and
of the rights of their constituencies.

[501] _Record_, p. 6; _Socialist Brief_, p. 7.

This position is conclusively established by the Bar Association in its brief.[502] After the respondents had taken the constitutional oath of office, and in the absence of any personal misconduct during their term, they became entitled to participate in all proceedings of the Assembly until they were actually ousted. This has always been the practice in Congress, even on charges of bribery; for instance, Senator Lorimer participated in all the proceedings of the Senate until he was finally disqualified, and Senator Truman H. Newberry of Michigan, who has been actually convicted of corrupt practices, still retains his seat and will continue to do so even during any investigation that may be made of his conduct by the Senate. The issue of free speech, however, is less concerned with the unwarranted method of the proceedings against the five members than with the question whether there was any legal cause to deprive them of their seats by any method whatever.

[502] Pages 8–20.

The opening clause of the New York Constitution provides that no member of this state shall be disfranchised unless by the law of the land, or the judgment of his peers. Like the United States Constitution, it makes each House “the judge of the elections, returns and qualifications of its own members,”[503] but it imposes the restriction already mentioned that no declaration, test or oath shall be imposed except that specified. Certain offices are a disqualification,[504] but even the right to vote is not a requisite for eligibility.[505] The power to expel is conferred by statute.[506] The power to suspend is not given by Constitution or statute. Although this was an inquiry into qualifications and not an expulsion, yet since the method is immaterial it is desirable to review the cases of both exclusion and expulsion to determine whether a Legislature, especially in the absence of any disqualifying statute, can lawfully unseat a member for opinions and affiliations without overt acts.

[503] Art. III, § 10.

[504] Art. III, § 8.

[505] Barker _v._ People, 3 Cow. 686, 703 (1824); Cooley, _Constitutional Limitations_, 7th ed., 894 note.

[506] Legislative Law, § 3. “Each house has the power to expel any of its members after the report of a committee to inquire into the charges against him shall have been made.”

The analysis of the law on this question is peculiarly difficult. The judicial precedents are necessarily few and indirect in their bearing, for the courts have uniformly denied that they have any power to review either legislative expulsions or legislative decisions on the qualifications of members.[507] The house in making decisions on qualifications and in other election cases acts in a judicial capacity, in spite of the doctrine of the separation of powers, and such controversies do not fall within the general judicial power vested in the courts, since the constitutions expressly confer jurisdiction upon the legislative chamber in question. However, judges have sometimes been called upon to discuss whether anybody has power to add to the constitutional requirements for eligibility. Justice Story, in denying that the states can impose additional tests for a member of Congress, for example, that he shall reside in the district which elects him, writes:[508]

It would seem but fair reasoning, upon the plainest principles of
interpretation, that when the Constitution established certain
qualifications as necessary for office, it meant to exclude
all others as prerequisites. From the very nature of such a
provision, the affirmation of these qualifications would seem to
imply a negative of all others.

[507] Hiss _v._ Bartlett, 3 Gray (Mass.) 468 (1855); French _v._ Senate, 146 Cal. 604 (1905); P. _ex rel._ Hatzel _v._ Hall, 80 N. Y. 117, 122 (1880); P. _v._ Mahaney, 13 Mich. 482, 492 (1865).

[508] I Story on the Constitution, § 625; Congress has always refused to recognize these state limitations as valid. 1 Hinds’ Prec. 381, 384, 387.

There is much force in his position, that the power to judge “qualifications” means only constitutional qualifications, but it does present difficulties, especially when the constitutional requirements for eligibility are so meagerly stated as in New York. Can insanity be made a bar, or is it only a ground for expulsion after admission? Were women eligible to Congress, before they were allowed to vote, inasmuch as they were not specifically excluded? Or were they under a common law ineligibility, which had to be read into the Constitution?[509] At all events, some judges have been willing to admit that in some instances the requirements of the Constitution may be added to, but only within narrow limits. (1) Additional qualifications can be imposed only by law; that is, by a statute enacted by both houses of the legislature, and signed by the governor. The body which judges the qualifications of its members cannot itself legally create new qualifications any more than the Supreme Court of the United States can legally create new income taxes. One house cannot make the law, and eligibility is fixed by law.[510] (2) The highest court of the state of New York has decided that the legislature under its power to punish crimes can pass a valid statute, making conviction for duelling a disqualification for the legislature, but said through Chancellor Sanford:[511]

Eligibility ... belongs equally, to all persons whomsoever, not
excluded by the constitution. I therefore conceive it to be
entirely clear, that the legislature can not establish arbitrary
exclusions from office, or any general regulation requiring
qualifications, which the constitution has not required. If, for
example, it should be enacted by law, that all physicians, or all
persons of a particular religious sect, should be ineligible to
public trusts; ... any such regulation, would be an infringement
of the constitution; and it would be so, because, should it
prevail, it would be in effect, an alteration of the constitution
itself.... _There may be an exclusion by law, in punishment for
crimes; but in no other manner, and for no other cause._

[509] “Eligibility of Women for Public Office,” 33 _Harv. L. Rev._ 295 (1919).

[510] Barker _v._ People, 3 Cow. 686, 707 (1824); P. _ex rel._ Bush _v._ Thornton, 25 Hun 456, 463 (1881).

[511] Barker _v._ People, 3 Cow. 686, 703, 704, 707. The italics are mine.

(3) In New York and other states which have constitutions forbidding any other “oath, declaration, or test” except that specified, this prohibits not merely new forms of test oaths, but all arbitrary requirements as a qualification for voting or office-holding, particularly those based on opinions and party affiliations, and it makes no difference that these requirements are imposed by statute. Thus, the New York Court of Appeals has held a statute unconstitutional which required voters to swear that they had never borne arms against the United States, given aid to the enemy, deserted, or evaded the draft.[512] It has also invalidated a statute which made all persons except members of the two leading political parties ineligible for the Albany police commission. Judge O’Brien declared:[513]

The legislature of this state has no power to enact a law which
proscribes any class of citizens as ineligible to hold public
office on account of political belief or party affiliations.

[512] Green _v._ Shumway, 39 N. Y. 418 (1868); Goetcheus _v._ Matthewson, 61 N. Y. 420 (1875). Similar disqualifications for preaching, teaching, or practising law have been declared invalid under the U. S. Constitution. Cummings _v._ Missouri, 4 Wall. 277 (1866); _Ex parte_ Garland, 4 Wall. 333.

[513] Rathbone _v._ Wirth, 150 N. Y. 459, 485 (1896), and see cases cited from other states. (Some of the judges rested the invalidity of the statute on other clauses of the N. Y. Constitution.) The legislature may of course impose requirements which relate directly to fitness for the particular office, _e.g._, that only physicians are eligible to the board of health. Rogers _v._ Common Council, 123 N. Y. 173, 184 (1890).

Clearly, all these cases render the unseating of the five Socialists illegal. They were not made ineligible by any law, but by the fiat of the Assembly alone. They had not been convicted of crime, and they were guilty of no crime which was a statutory bar to office. And they were proscribed for their political beliefs and party affiliations.