CHAPTER XIX.



OF INCOMPATIBLE OFFICES.



TWO offices may be so incompatible in their nature, that the same person

shall not be admitted to hold them both. The Constitution in this

respect is not altogether silent, and we shall endeavour to show the

justness of the principles on which it proceeds. It is a rule of general

law, that an officer who accepts another appointment inconsistent with

the first, is held to have thereby resigned the first. [1] If the

marshal of one of the districts were to be appointed judge of that

district, it would virtually vacate his office as marshal. If a member

of the house of representatives accepted an appointment as senator, he

would cease to be a member of the house of representatives. But a man

may hold two or more offices, if they are not incompatible in their

nature, [2] and therefore there would seem no reason, other than general

policy, for excluding some of the executive officers, below the

president, from seats in either house, or, to prevent an individual from

holding at the same time the office of secretary of state and of the

treasury, or any similar offices. But although no reasons, merely of a

legal nature, might be opposed to it, the impolicy of admitting such

officers to compose a part of the legislature is exceedingly plain.



We must, once more recur to England, and examine the effects of their

practice in this respect. The great officers of the crown, unless they

are, members of the other house, are eligible as members of the house of

commons. The whole administration partakes in one or the, other of the

houses, of the legislative power. There is no doubt that some benefit is

derived from it, in the facility of obtaining information in regard to

public measures, and the inquiries of other members on such subjects,

are usually answered with great courtesy; but this small advantage is

counterbalanced by the influence they possess there, and by the total

subversion of one of the chief pillars, on which the importance and

value of the house of commons have always been asserted to rest.



Every panegyrist of the British Constitution delights to draw a

perspective view of the house of commons as keeper of the purse of the

nation; regulating its expenses and withholding supplies from the crown,

except on such terms as the good of the people may require. But nothing

is at present more remote from the fact. The whole scheme of taxation;

the amount to be raised; the subjects to be taxed, and the objects to

which the product is to be applied, are laid before them by the

Ministers of the crown; not indeed in that capacity, but in the

professed quality of members of the house, and perhaps since the

restoration of Charles II. certainly not for many years back, the other

members of the house, have never proposed other plans of finance, or

undertaken to act on the old principle of representatives of the people,

further than to object to and vote against the ministerial propositions.

Thus the house of commons is rendered part of the machinery of the

executive government, and whenever a minister becomes so unpopular as to

lose his ascendancy in the house, either it must be dissolved, and the

chance of one more pliant be taken by another election, or the minister

resigns, and the crown employs new and more judicious or more dexterous

servants. Great jealousy of the interference of the house of lords with

money bills is retained, in which the ministerial part of the house of

commons prudently unite; but no jealousy of the power of the ministry in

their own house is collectively manifested. In short, the actual

government of that country, as now administered, is purely the

government of the crown, and the supposed representatives of the people,

the house of commons, are merely what the first lord of the treasury,

the chancellor of the exchequer, and similar great officers are

avowedly; that is, the ministers of the executive government. It is

true, that to keep up the appearance of its ancient character and

independence certain interior officers of the excise and customs, &c.

those who hold any office created since the year 1705 and persons

holding pensions at the pleasure of the crown, or for a term of years,

are ostentatiously excluded from seats in the house of commons; a sort

of political flattery which can deceive only superficial observers; but

the great managers of the whole machine remain in the heart of it, and

direct all its internal springs and movements.



How is this open and undisguised process accomplished?



The answer is by the almost entire destruction of their ancient

principle of representation.



In very few parts of the kingdom is a seat obtained through the

unbiassed and independent votes of the people. Boroughs, once populous

and free, have become the actual property, in point of suffrage, of the

crown, or of aristocratic families, and now are, in fact, mere subjects

of sale or barter. The minister carefully avoiding to present himself as

a candidate in those few places which are still actuated by the spirit

of free suffrage, unless (as sometimes happens) the prevalent political

opinions in such places should coincide with the party to which he

belongs, procures a return in his favour without difficulty, and on the

votes of some nominal electors, takes a place in the house, equal in

legislative attributes to that conferred by the choice of thousands. All

attempts at reformation in this respect are uniformly resisted by the

ministers of the crown.



From such perversions of sound and regular principles, our Constitution

effectually secures us. While decennial enumeration and apportionment

continue, that is, while our Constitution lasts, no executive officer

can insidiously creep into the number of our legislative

representatives. The open and unfettered choice of the people only can

place him there.



But would such a choice be consistent with sound policy, and the spirit

of the Constitution?



The advantages derived to the people seem to be few -- the objections

many. The measures of the executive government, so far as they fall

within the immediate department of a particular officer, might, it is

true, be more directly and fully explained on the floor of the house;

but we notice here also a striking difference between the two

governments. In England, the measures of government are practically

considered the measures of the ministers -- it is not even allowed to

introduce the king's name into a debate. [3] But the executive acts of

the president, except in the two instances where the senate

participates, are unshared with others, and the highest officer under

him can constitutionally no more explain or account for them than any

other individual. Besides, such modes of communication ought not to be

encouraged, were they in use. The regular channels of communication from

the president are pointed out in the Constitution, and if further

information is desired, it is sought for in an open and public

application, leaving it to the president to withhold what he may deem it

injurious to disclose, and protecting him from the misapprehensions of

others, by the necessity of reducing his communications to writing. Such

a mode of obtaining information is infinitely superior to the sudden,

and sometimes unguarded, answers returned to the verbal interrogations

of the members of the house of commons in Great Britain.



But, among many other objections to the introduction of any of the great

public officers into either house of congress, we must keep in view a

great principle of all republican governments, that public offices are

intended to be for the public service, and not for the benefit and

emolument of the individuals who fill them. No more offices are created

than the public needs require. If the duties are too few to occupy the

time of the individual, the office is incorporated with another, unless

the united weight of both should be too great. On the other hand, if the

quantity of public business should so increase as to render it necessary

to increase the number of persons who are to transact it, new offices

are created. The whole system has a view only to the public benefit. We

do not continue an office when its duties have expired. As Burke has

justly observed, "when the reason of old establishments is gone, it is

absurd to preserve nothing but the burthen of them. This is

superstitiously to embalm a carcase not worth the gums that are used to

preserve it." [4]



The public officer being therefore considered with us as having actual

living duties which he is bound to perform, and as having no more time

than is necessary to perform them, the Constitution expressly excludes

him from a seat. But a further caution is introduced into it. A member

of either house may be appointed to an office existing previously to his

being elected, if the emoluments of it have not been increased during

the time for which he was elected. But if a new office has been created,

or the emoluments of an old one increased during that time, the promise

or the chance of receiving an appointment to it, may have an undue

influence on his mind. Such an appointment is therefore forbidden by the

Constitution during the time for which he was elected; and it is only to

be regretted that it was not forbidden altogether. A dishonourable

traffic in votes, should it ever become a characteristic of our country,

would be more completely prevented, if to an office so created, or

rendered more profitable, no one who had had an agency in either

respect, could ever be appointed.



The Constitution contains no provision adverting to the exercise of

offices under the United States and separate states at the same time, by

the same persons. In some of the states it has been thought expedient to

provide against it.



Those states appear to have acted under the apprehension of a possible

collision between the two governments, and a jealousy lest the admission

of the officers of the United States into places of trust and power in a

state, might lead to a preference in the minds of those who hold offices

under both to the prejudice of the state governments. [5] A counter

apprehension did not exist in the people, when they formed the

Constitution of the United States, although it has been the opinion of

some enlightened men that there was more probability that if the balance

ever should be disturbed, it would be by the preponderancy of the state

governments. It has been observed, that the state governments are

constituent and essential parts of the United States government, while

the latter is in nowise essential to the organization or operations of

the former. Without the intervention of the state legislatures, the

president of the United States cannot be elected. The senate is elected

immediately by the state legislatures. Even the house of

representatives, though drawn immediately from the people, will be

chosen very much under the influence of those whose own influence over

the people obtains, for themselves an election into the state

legislatures. On the other hand, the component parts of the state

governments will in no instance be indebted for their appointments or

their power to the direct agency of the general government.



The powers of the general government are few and defined, those which

remain to the state government, numerous and indefinite.



The first and most natural attachment of the people will therefore be to

their state governments, but in the general government they will see not

a rival or an enemy to the state government, but the ultimate authority

and common power, which they have themselves concurred to create, and

therefore, as it will be their interest, it finally will be their

endeavour to support and restrain both within their just constitutional

bounds. [6]



It will not be foreign to this head to notice the oaths of office

required by the Constitution.



The president is required by it to take an oath, (or affirmation,) that

he will faithfully secure the duties of his office, and that he will

preserve, protect, and defend the Constitution. The senators,

representatives, the members of the several state legislatures, and all

executive and judicial officers, both of the United States and of the

several states, shall be bound by oath or affirmation to support this

Constitution.



Although a promissory oath is not in point of law, ranked so high as a

judicial oath; that is, it does not fall within the general provisions

of the law in respect to perjury, yet it greatly increases the moral

obligation of the party, and ought to make a deep impression on him.

Every state officer, and every officer of the United States, on being

elected or appointed, binds himself thereby, not only to abstain from

all opposition to the Constitution, but to give it his firm and active

assistance.



It has been asked, why it was thought necessary that the state

magistracy should be bound to support the Constitution of the United

States, and unnecessary to impose an oath on the officers of the United

States in favour of the state constitutions. The reason assigned, (as

one of many,) by the authors of the Federalist, is, that the members of

the general government will have no agency in carrying the state

governments, into effect, but the members and officers of the state

governments will have an essential agency in giving effect to the

general government. [7]



This answer is a solid one. An official oath ought to be confined to the

duties of the office. It is not so broad and comprehensive as a general

oath of allegiance and fidelity which embraces all the duties of a

citizen or subject. An officer appointed under the authority of the

United States, is to perform only those duties which emanate from it;

his obligation is limited by that authority, which, as repeatedly

heretofore observed, is not controlled by the constitutions of the

several states. An officer appointed under the authority of a state, is

bound to support its constitution, but so far as the Constitution of the

United States in any respect supersedes it, another rule of obligation

arises, which he is equally bound to comply with; and, as it is

essential to the true interests of all the states, that the powers

granted to the general government should be fully effectuated, all their

officers, legislative, executive, and judicial, should expressly

undertake to do so.



The remarks on this subject may be concluded by drawing the attention of

the reader to the liberal alternative of an oath or affirmation. No

religious test, it is declared in the same sentence, shall ever be

required as a qualification to any office or public trust under the

United States. Not only a numerous and respectable sect, but many other

persons not of the people called Quakers, feel an invincible repugnance

to taking an oath in any form. If the term affirmation had been omitted,

all such persons would have been excluded from public trusts on account

of religious opinion. The abstract declaration of perfect equality in

matters of religion is thus realized.



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1. 2 Rolle's Reports, 452. Brooke's ab. Commissions, 25. 3 Burr, 616. 2

Durn. & East, 85.



2. 4 Serg. & Rawle, 275.



3. It is a constant rule," says Delolme, "never to mention him when they

mean to blame the administration." And we may observe on all occasions

when a majority adverse to the political measures of the day happens to

prevail in the house of commons, that the language of resolutions and

addresses is scrupulously pointed against the ministers who have advised

the crown to adopt them -- not against the monarch himself.



4. See his admirable speech on Economical Reform, in 1780.



5. Per Shippen, C. J. 3 Yeates's Reports, 315.



6. See the 45th and 46th numbers of the Federalist, in which this

subject is fully discussed.



7. Federalist, No. 44.