[§1. Convention delegates are not officers under the existing constitution.]
{185} THE most important questions relative to the status of delegates to a convention are as follows: Are they public officers and should they take an oath to support the existing constitution?
First, as to whether the delegates are public officers. This question arose in the Illinois convention of 1862 under a provision of the then constitution of that State,1 which provided that judges of certain courts should not be eligible to any other office, or public trust, of profit, during the term for which they were elected or for one year thereafter. One of the delegates had been a judge of one of these courts within one year prior to his election to the convention. His competitor contested his election on this ground. On the part of the judge, it was contended that the words of the constitution referred to the distribution of powers by the constitution to the three regular branches of government, to neither of which did the convention belong. Even the fact that the convention was authorized by the constitution was immaterial, for the constitution merely provided a means for the people to exercise their undoubted right to hold a convention and did not prescribe the qualifications of delegates, as it did those of judges, members of the legislature, and members of the executive department. If the constitution had regarded the members of the convention as State officers, it would certainly have contained provisions prescribing their qualifications, the time and mode of their election, and their powers and duties.
In behalf of the contestant, no great claim was made that a seat in the convention was a public office, but it was contended very strongly that it was certainly a position of public trust of the greatest magnitude. The convention, however, decided {186} to permit the judge to retain his seat.2 Jameson differs with this conclusion in the following language:
In my judgment, there can be but little doubt, that a member of a Convention is, in the enlarged and proper acceptation of the term, an "officer "of the State. ... A Convention is a part of the apparatus by which a sovereign society does its work as a political organism. It is the sovereign, as organized for the purpose of renewing or repairing the governmental machinery. That same sovereign, as organized for the purpose of making laws, is the legislature; as organized for the purpose of applying or carrying into effect the laws, it is the judiciary or the executive. These successive forms into which the sovereign resolves itself, are but systems of organization having relation more or less directly to the government of the society. Together, they constitute the government.3
The position of delegate to the Illinois convention was undoubtedly a position of public trust, and even a public office; but was not, if we regard such conventions as extraconstitutional, a position under the constitution. When a constitution refers to the incompatibility of offices, such provisions should be construed as relating solely to positions under the constitution itself and not to apply to any other positions unless clearly so stated.
Attorney-General Attwill in a recent opinion to the Massachusetts legislature, reaches the same results, but on different grounds:
I have come to the conclusion, with some hesitation, that the position of delegate in the convention is not an office of the Commonwealth.
Whatever may be said in relation to a member of the Legislature, he at least takes part in the execution of one of the powers of government, whereas a delegate in the convention acts substantially as one of a committee of the people, whose power is restricted to making a report to the people.
The whole purpose of the convention is to take under consideration the propriety of revising or altering the present Constitution, and to report back to the people such revision, alteration or amendment as it may propose. Its powers are similar to that of a committee, its work is entirely preliminary, and it has no power to do any act which of itself has any final effect.
{187} It is my view that the word "office," as used in article VIII of the Amendments, refers to a position the incumbent of which exercises some power of government, and not to the position of a person selected to act in an advisory capacity in framing a scheme or change of government to be submitted to the people for adoption or rejection.4
It does not appear necessary to debase the convention in this way in order to reach his conclusion. It would be sufficient to hold that the word "officer" in the constitution means constitutional officer. Mr. Attwill had, however, debarred himself from using this ground by his theory (expressed earlier in the same opinion) that the convention is a constitutional proceeding.5
[§2. Convention delegates need not take oath to uphold existing constitution.]
Let us next take up the question of oaths of members. Jameson says:
The question whether the members of a Convention should be sworn before entering upon their duties, has been variously answered in different Conventions. Of the whole number whose proceedings have been accessible to me, about one half only have administered an oath. These were the following Conventions: those of Pennsylvania, 1776; North Carolina, 1835; New Jersey, 1844; Missouri, 1845; Illinois, 1847 and 1862; California and Kentucky, 1849; Ohio and Indiana, 1850; Iowa and the two Minnesota Conventions, in 1857; and Maryland, in 1864. On the other hand, an oath was not administered in the following Conventions: Maryland, 1776 and 1850; Tennessee, 1796 and 1834; Virginia, 1829 and 1850; Pennsylvania, 1789 and 1837; New York, 1821 and 1846; Massachusetts, 1779, 1821, and 1853; Michigan, 1850; Wisconsin, 1847; and Louisiana, 1812, 1844, and 1852. In those Conventions in which an oath has been administered, the most common form has been substantially that used by the Illinois Convention of 1847, which was as follows: "You do solemnly swear, that you will support the Constitution of the United States, and that you will faithfully discharge your duty as delegates to this Convention, for the purpose of revising and amending the Constitution of the State of Illinois." That administered in Maryland, in 1864, beside the foregoing, contained an oath of allegiance to the government of the United States. A more restricted form was employed in the California Convention of 1849, {188} and in the Minnesota Republican Convention of 1857, namely: "You do solemnly swear that you will support the Constitution of the United States."
In several of the Conventions in which an oath has been administered, opposition has been made either to taking any oath at all, or to taking one in the form proposed by the Convention, or prescribed by the Act under which it assembled.
It has been urged that no oath was necessary or proper; that it the Convention was a mere committee, with powers only of proposing amendments, it was a useless ceremony to bind it by oaths to do or not to do acts which it could do only on the hypothesis that it possessed a power of self-direction inconsistent with its supposed character; that it was even dangerous so to do, as involving an admission that, without an oath or some positive prohibition, it would have power, and perhaps be at liberty, to act definitively. On the other hand, if the Convention was an embodiment of the sovereignty of the State or nation, empowered to pull down and reconstruct the edifice of government, as freely as the sovereign could itself do, were it possible for it to act in person and directly, then an oath would be doubly futile, since it could not fetter a power that was practically unlimited and uncontrollable.
In reply to this, however, it has been forcibly urged that, if not necessary, it is proper that a body like a Convention, intrusted with important public duties, should deliberate under the obligation of an oath; that it could do no harm, and might operate to restrain members from doing, for selfish or partisan ends, that by which the interest of the people at large might be jeopardized. This would become more apparent, when it was considered that an oath derives its efficacy more from its tendency to remind the taker of his obligation to a higher power, than from any liability the taking of it may impose upon him to punishment for perjury.
What form of oath should be used has, however, been more frequently the subject of dispute than whether any oath was proper. In Conventions to frame State Constitutions, assuming that an oath is to be administered at all, it is generally conceded to be proper that it should embrace an undertaking to be faithful and obedient to the Constitution of the United States. This could not well be contested, since the State Constitutions are, by the terms of the Federal charter, to be valid only when conformable to its provisions. It is also generally admitted to be proper, if an oath be taken at all, that the members should be sworn honestly and faithfully to perform their duties as members of the Convention. A question of more difficulty is, whether the oath should {189} contain a clause to support the Constitution of the State. This question has been raised in several Conventions, and has been uniformly decided in the negative. The reasonings of the opposite parties upon this question have been based on their respective conceptions of the nature and powers of a Convention. Those who have opposed taking the oath have done so on the ground, that to do so would be inconsistent with their duties as members of a Convention; that they were deputed by the sovereign society to pull to pieces, or, as some have expressed it, "to trample under their feet," the existing Constitution, and to build up instead of it a new one; that to take an oath to support the Constitution of the State, would be to swear that they would not perform the very duty for which they were appointed.6
Among the conventions which have raised the question and refused to take the oath are those of Louisiana in 1844, Ohio in 1850, Iowa in 1857, and Illinois in 18627 and 1869.
In the last two instances, the convention act required an oath to support the constitution of the State. The convention of 1862 struck out the words "of the State," and the convention of 1869 accomplished the same result by adding after them the words "so far as its provisions are compatible with and applicable to my position," thus recognizing the principle that the convention was extraconstitutional.8
Similar recognition was given by the Virginia convention of 1901-1902. The then existing constitution required all State officers to take an oath to support the State constitution. It was argued that delegates to the convention were not officers, and accordingly the oath was not taken.9
The constitutions of Colorado, Illinois, and Montana expressly provided that delegates to conventions must take an oath to support both Federal and State constitutions.10 There is no record of the applicability of this provision ever having been questioned.
In North Carolina the legislature in 1835 and 1875 placed restrictions upon what the conventions should do, and provided that no delegate should be permitted to take his seat until he should take an oath to observe such restrictions. In these cases the oaths were objected to, but were taken, and the {190} restrictions were observed.11 A similar oath, required by legislative act, was taken by the delegates to the Georgia convention of 1833.12 The same plan was followed by the Louisiana legislature of 1896, and the restrictions were substantially observed by the convention which assembled in that State in 1898.13 The Louisiana act of 1896 had been submitted to and approved by the people, as had also the act calling the North Carolina convention of 1835.14 The Louisiana convention of 1898 expressly recognized the popular statute as binding upon it, and the same view is found in a dictum of the Louisiana Supreme Court.15 It would seem that such of these conventions as were called merely by the legislature16 might, had they thought proper, have declined to take the oaths, and have organized and proceeded to act without doing so, just as was done by the Illinois convention of 1862.17
As we have seen, the question of taking an oath to support the State constitution has been decided in the negative wherever it has been raised, with the single exception of North Carolina, in which State it had been the people who had required the oath. This would seem to be a reasonable decision, based on the superiority of the convention to the constitution. It would be a strange anomaly to require a superior to take oath to obey an inferior.
Similarly there is a bit of an anomaly for the legislature and the Governor, after taking an oath to support the existing constitution, to then provide for the holding of a convention for the overturning of that instrument in a manner unauthorized, or even impliedly or expressly prohibited, by it. Yet this may be justified by arguing that as an oath to support the State constitution does not bind the taker to commit treason against the United States, neither does it bind him to forswear his primary allegiance to the people.
From all the foregoing we see that convention delegates are not officers under the existing constitution, even in the case of a convention apparently authorized by that instrument, and that it would be extremely anomalous for them to take an oath {191} to support the State constitution; although they ought to swear to support the constitution of the United States and faithfully and impartially to perform the duties of their position.
[§3. Convention delegates entitled to usual privileges and immunities of legislators.]
It may be useful now to append a few remarks in relation to the question of privileges, as applicable to Conventions. Are the members of a Convention, or is the body itself, entitled to claim the immunities usually accorded to the legislature, and to its individual members, such as exemption from legal process, from service as jurors or witnesses, or from legal question tending to impair the freedom of their debates and proceedings? It is doubtless essential, in order to enable a legislature, or any other public assembly, to accomplish the work assigned to it, that its members should not be prevented or withdrawn from their attendance, by any causes of a less important character; but that, for a certain time at least, they should be excused from obeying any other call, not so immediately necessary for the welfare or safety of the State; they must also be always protected in the exercise of the rights of speech, debate and determination in reference to all subjects upon which they may be rightfully called to deliberate and act; it is absolutely necessary, finally, that the aggregate body should be exempted from such interferences or annoyances as would tend to impair its collective authority or usefulness. The immunities thus indispensable are, in the case of legislatures, commonly secured by rules and maxims or constitutional provisions, and are styled privileges, as being rights or exemptions appertaining to their office, to which citizens generally are not entitled.
Out of the catalogue of privileges above given, it is not easy to select one with which a Convention or its members could safely dispense. It ought never to be, as without them it would frequently be, in the power of the enemies of reform to prevent or postpone it by arresting, harassing or intimidating the delegates to the body by whom it is to be accomplished. But the real difficulty is, not to determine whether or not a Convention ought to enjoy those privileges, but to ascertain how and by whom they should be protected and enforced.
Upon this point, there is, in my judgment, but one position that can be maintained with safety, and that is, that Conventions must stand upon the same footing with jurors and witnesses; they must look to the law of the land and to its appointed administrators, and not to their own powers, for protection in their office. If a juror or a witness, going or returning, is harassed by arrest, he does not himself or with his professional associates cite the offending officer before him for punishment, but sues out a writ of Habeas {192} Corpus, and on pleading his privilege procures his discharge. Beside this, for personal indignity or injury, he may appeal to the laws for pecuniary compensation. The same course is doubtless open to any member of a Convention, and it furnishes for all ordinary cases a practical and sufficient remedy. Behind those bodies stands continually, armed in full panoply, the state, with all its administrative and remedial agencies, ready to protect and defend them.18
Various convention acts declare expressly the privileges and the immunities of the delegates.
Thus it appears that the delegates, although "officers," are not "officers" within the meaning of the constitution. They need not take an oath to support the State constitution unless required to do so by a popular statute. They have similar privileges and immunities to those enjoyed by members of the State legislature and jurors, but should look to the courts to enforce them.
1. Art. V, § 10.
2. Jameson, pp. 317-318.
3. Jameson, pp. 319-320.
4. 1917 Mass. House Doc., 1711. Compare Atty. Gen. v. Tillinghast (1909), 203 Mass. 539, 543.
5. See [Ch. IV §4] pp. 43-45, supra.
6. Jameson, pp. 280-282.
7. Jameson, p. 282, n. 1.
8. Jameson, p. 284.
9. Dodd, p. 81, n. 16.
10. "Columbia Digest," p. 28.
11. Dodd, p. 81.
12. Dodd, p. 81.
13. Dodd, p. 81.
14. Dodd, p. 81, n. 15.
15. Dodd, p. 81, n. 15; La. Ry. Co. v. Madere (1909), 124 La. 635, 642.
16. North Carolina (1875); Georgia (1833).
17. Dodd, p. 81, n. 15.
18. Jameson, pp. 473-474.
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