Imbrie v. Marsh

PLAINTIFFS-RESPONDENTS, AL., v ET IMBRIE JAMES AL., DEFENDANTS-APPELLANTS. . MARSH ET LLOYD B. January 9, January 3, 1950 Argued Decided Mr. cause for the appel- G. Van Tine Benjamin argued Parsons, General, attorney). lants Theodore D. (Mr. Attorney respondents Mr. Leo cause Blumberg argued 8tavis, Morton (Mr. attorney). of the court was delivered opinion C. J. The action was commenced present

Vajstdekbilt, the for Governor and Party Progressive nominees in members of the State election of the Legislature general for an injunction and the Progressive Part)*, restraining defendants, the the of State and the several Secretary county clerks, from the “refused oath of printing legend allegiance” under the names of the individual on the ballots plaintiffs to be in used the election and general prohibit also generally 21, 22, from manner the defendants enforcing Chapters Laws of and for a declaratory the judg- ment are in that these violation of the Constitutions statutes of Uew the Jersey United States and therefor void. On motion of defendants the the Division of the Chancery Court dismissed the Superior complaint, the four sustaining acts in but on the re- question, Division appeal Appellate below, versed the that so much of the chal- judgment holding as was lenged legislation applicable to Governor members and candidates for offices Legislature those was unconstitutional and void. Erom that determination the defendants have to this court. appealed

The be decided are issues to here of fundamental import- ance, first, involve they because the construction of two sec- tions of our new Constitution, secondly, because they “No well said country been as to which it has concern oaths an is not thought where oath a twelve-month can subsist society,” must dissolve necessarily want of it for the binding; Barker, The oath 21, 34 1744). 1 Atk. (Ch. v. Omychund the earliest part has played significant “An Athenians: to the times; find Lycurgus saying thus we Oratio the state keeps together,” oath is the bond that attributing strength Leocratem and Montesquieu in was the for an oath: “Such the Romans to their respect bound nothing of an oath these people fluence among did more for the to the laws. often They stronger them have for the than would done thirst observance of they Laws, The Spirit or the love of their country,” glory VIII, has traced history Book c. Wigmore long of Divine false oath from its “summoning vengeance upon to “a method of the witness of the swearing,” reminding Divine somewhere in store for false punishment swearing,” 285. The of the oath on Evidence Wigmore importance cannot be judicial judge proceedings overestimate^!; box, attorneys counsel bench, jury on the table, stand, the witness on court stenographer taking even the a record of the bailiffs when they proceedings, are deliberations, retire to its all sworn to jury guard do duties before are to act. respective permitted their and other of members responsibilities Legislature are of no less certainly importance public state officers welfare.

An oath of first in this State on prescribed 19, 1776, within three months after the September adoption Constitution, P. L. first c. 2 p. 1), of our (Wilson, terms: following sincerely profess swear, (or, People if one AB find “I do affirm) Quakers, That and will bear true Faith and called do Allegiance to the Government established this State under Authority help People. me of the So God.” with the omission of the clause in paren- This precise language elsewhere, theses, which is been provided carried has forward successive revisions and through into compilations Eevised Statutes of 41:1—1. L. 1949, statute was amended P.

This c. the first of attack, the acts under to read as follows: Every person required give or “41:1-1. who is shall be law to fidelity and assurance of attachment to the Government of this State following allegiance: oath of shall take ‘I, ................., solemnly (or affirm) do swear that I will support the United States and the Constitution Jersey, of the State of New and that I bear true faith al- will legiance to the same and to the Governments established the United State, authority people; States and in this under the and will against enemies, foreign domestic; defend them that I do in, force, violence, not believe advocate or advise othpr the use of or or means, any change unlawful unconstitutional to overthrow or make State; in the Government established the United States inor any I am organization, and that association, party, group not a member of or affiliated with persons, approves, combination advocates, practices force, violence, advises or the use of or other means, unlawful or change unconstitutional to overthrow or make established; in either of the Governments so and that I am not bound by any allegiance any foreign prince, potentate, state or sov- ” ereignty help whatever. So God.’ me An official oath of officewas first provided in 1799 (Pater- son, p. 377) following-terms: enacted, And it “VII. that where' the form of an official oath specially prescribed, is not or shall not be in the then one shall be taken following words, to wit: n . n I, ............., solemnly promise swear, do that I will faithfully, impartially, justly perform all the duties of the office according my of standing. to the best of abilities and under- help So me God.” This oath was likewise re-enacted in successive revisions and compilations. P. L. By 1920, c. 215 (2 Cum. Suppl. 1924, 2564) simple enlarged ail prefixing oath to support the Constitution of the United States and Constitution of Few Jersey. The oath, new moreover, was "in addition to any official oath be specially pre scribed” and to the oath of allegiance first mentioned herein applied "every person hereafter elected or appointed or munici- in this state or any county to office any public therein.” pality into Revised Statutes which was carried statute

This L. 1937, 41:1—3, amended P. c. the second review, read four acts under as follows: specially any be that :l-3. In addition official oath “41 every person being prescribed, who for the time and the Governor office, to, any public elected, employed in, appointed or or shall position any judicial, employment, legislative, or to executive or or in, any department, militia, of, of, in, this or or or State office board, State, of, commission, instrumentality agency or or or any county, special in, municipality a munici- than or district other board, commission, agency in, any department, pality therein, of, or or attorney-at-law, instrumentality thereof, every and and counsellor or office, upon position, shall, of his said before he the execution enters duty employment and and subscribe the oath or take as ...................., office follows: solemnly affirm) (or ‘I, I do swear Consti- will of the United States faithfully discharge Jersey, and that I will tution of the State of New my ability. according the best of the duties of .................. solemnly affirm) (or faith that I will bear true I do further swear States and the Con- of the United to the Constitution in the and to the Governments established stitution of this State authority people; State, under the States in this United domestic; enemies, foreign against will them and I defend violence, force, in, or or advise use do not believe advocate means, or make unlawful unconstitutional overthrow or other or any change or in the States established United Government State; I not a affiliated with and that am member association, group persons, party, organization, or combination of force, advocates, practices approves, the use of advises or which violence, means, to overthrow unconstitutional or other unlawful or established; any change so Governments or make in either of any foreign potentate, any allegiance prince, am not bound ” help sovereignty me So God.’ whatever. state only and office” includes This “oath of allegiance L. P. the “oath of allegiance” oath of officebut everything the oral c. It was stated at argument haec verba. oaths to administer both the that it has not been practice in P. L. c. and c. but to consolidate prescribed them, therein. redundancy avoiding language thus however, in this That, has not been the court practice law, at and attor- counsellors judges, to administering oaths are un- until these acts declared neys at law. Unless and take oath to constitutional, everyone taking obligated the prescribed the form and Legislature. language consideration, 1949, 24, L. c. third of acts under P. the the all for election any candidates for nomination or to requires and file of office the oath public party position subscribe 41:1—1, L. in B. 8. amended P. prescribed further c. that should candidate provides any fail to file the oath nomination “the or election of such can- * * * didate shall null and void.”

P. L. c. the fourth of acts under scrutiny, for every candidate office to be on provides public voted in 1949 election shall subscribe and file the general in B. and, oath of set forth 41:1-1 as amended, in the event of his failure so subscribe and “there file, that name will be under his on printed military ballot, service ballot, and the official sample ballots be used at such election, general “refused oath of legend allegiance.” All of these statutes must be viewed in light pertinent provision the Constitution of IV, VIII, Article prescribes Section paragraph for members the Legislature: solemnly (or affirm) support “I do swear I will the Consti- the United tution of States and the Constitution of the State of Jersey, faithfully discharge and that New will the duties of Senator (or Assembly) according my member the General to the best of ability.” VII, I, and in Article Section 1, the oath paragraph for state officers: “Every officer, entering upon office, State before the duties of his

shall take and subscribe an oath or affirmation to the Consti- perform tution State and of the United States and to faithfully, impartially justly duties of his office best his ability.”

These two of the Constitution paragraphs us to the bring fundamental before us: question Are oaths, these embodied in the Constitution of 1947, exclusive toas members beyond and therefore officers and state the Legislature from, or in any- to, add subtract power Legislature wise vary? if the it, Legisla for is to answer

To ask the question of the Con provisions other 'alter oaths or these ture (such as office age, qualifications stitution prescribing office holding) of dual and prohibition residence citizenship, the Constitu extent of such variance nullify it would to the Menus, exclusio unius esl The maxim expressio tion. the current has been here. Such

peculiarly applicable of the authori elsewhere but State of decisions only prescribes the constitution law. “Where ties on public elected, the be appointed in 'an officer shall manner not competent exclusive and it is is constitutional prescription obtaining another mode to provide for the legislature State, 535, 536, N. J. L. v. 59 office.” Johnson the holding An disqualified voting & A. act that 1896). 538 (E. ex other than those convicted of crime officepersons holding held unconstitu enumerated pressly Ct. 82 N. J. L. 225 (Sup. 1916); v. Carrigan, tional State is unconstitutional because “We think that the legislation as prescribed the voters qualifications undertakes to add to A to freeholders itself.” statute limiting constitution declared uncon road commissioners was to vote for right of the Constitution as to the contrary provisions stitutional “The for class qualifications voting; of 1844 defining the con elections thus described at official being voters either to for the stitution, competent legislature it is not believed, authorities, it is such class. The or diminish enlarge Blake, L. 6, 57 N. J. 11 unanimous,” (Sup. Allison v. are line construction is pe 1894). Ct. This constitutional in a on dependent public appropriate culiarly Constitution “all political power and where elections I, 2. Article paragraph inherent in people,” is on are accord: public authorities law The recognized upon plainest principles reasoning fair seem but “It would certain'qualifiea- interpretation, Constitution established that when the pre- necessary office, as it meant to exclude others for tions as 586 very requisites. provision nature of such a affirmation From imply negative qualifications would of these seem of all others * * certainly power qualifications equivalent *. A to add new vary Story, power to 1 them.” Commentaries on the Consti- tution, 625. § legislature qualifications “The add to the constitutional cannot Cooley Limitations, 1 officer.” on Constitutional obviously beyond power legislature prescribing “It impose upon

the oath to administered or re officer tests quirements greater than those which constitution has declared Officers, shall on Public be sufficient.” Meohem 164 Offices (1890). Acton, See also State ex rel. v. 31 Mont. 77 Chenowith 299 Pac. Ct. ex rel. Brechen v. Board (Sup. People 1904); Commissioners, Election 221 Ill. 77 N. E. 321 Ct. (Sup. McCormick, 1906); ex rel. v. 261 Ill. People Hoyne 103 1915A, N. E. Ann. 338 Cas. Ct. (Sup. 1913); Downs, fman v. 145 Minn. 177 W. 669 N. Ct. (Sup. Hof State, 1920); v. 35 Buckingham Terry (42 Del.) Mason, A. 2d Ct. Kivett v. 185 Tenn. (Del. Sup. 1944); 558, 206 W. S. 2d Ct. 1947). (Sup.

In spite of these and the authorities decisions here elsewhere, the defendants our because argue Legislature has statute an oath of since prescribed early days of our do so. independence its has been right over challenged years, has Legislature acquired an inherent an oath of right require quali- fication for office addition to the oaths our required by Constitution. That no one has seen fit to the con- challenge stitutional of power the to Legislature prescribe simple of cannot be deemed to allegiance be controlling, especially when the oath of until last allegiance prescribed so year closely the approached terms of the.oaths set forth in the Constitu- tions of 1844 and 1947 as to be quite indistinguishable them and therefore to be entirely unobjectionable.

Indeed, history oath of and allegiance other tests for office and in holding England of Colony Hew Jersey constitute of convincing proof the historical unsoundness of the defendants’ contention as well as persuasive of the exclusive of nature the oaths incorporated in our Con- is an involved one but the matter is This history stitutian. and not without importance one of paramount present- such that we deem it essential to into matter day go significance have been able point. compact summary most of the oath of is from the history to find allegiance brilliant of historians: of the most pen English legal history parliamentary religious and disabilities “The oaths * * * begins Eliz., 1, 13, in 1562 with statute 5 e. which re- every quired member of the House of Commons to take the oath of queen only supreme governor supremacy—to that swear is spiritual temporal causes, as in and that no this realm as well any authority potentate spiritual foreign person or has ecclesiastical or allegiance (7 In 1609 an oath of was added within this realm. king lawfully king, 6), and that c. to the effect Jac. depose II, pope power (30 In him. Car. stat. has no to against 1) to these oaths was added a declaration transubstantia- c. tion, of saints and the sacrifice of the mass: ánd the the invocation required of as well as and this declaration were lords two oaths effectually of both Houses were thus closed The doors commons. Church; ready might of them be to members of the Roman some government, oaths which related to church but the to take the two utterly incompatible with their most to declaration as doctrine Immediately after the Revolution the oaths fundamental beliefs. two form, supremacy altered in the first was to and were merely this, allegiance King ‘I and bear be will be faithful true Marythe impious Queen second was T abhor as and do William position princes and the damnable doctrine by ex- and heretical any authority may Pope of the see of Rome communicated or subjects any whatsoever, deposed and I or murdered their or ought foreign prince hath or to have declare no authority jurisdiction spiritual within this realm.’ ecclesiastical against An transubstantiation was still maintained. The declaration ‘abjuration,’ oath, known as oath of act of added third political abjures long of a more character: the swearer Wales, pretended promises allegianc.e Prince of main- royal Rights Bill of succession as fixed and the Act tain upon Settlement, and he the true faith of a Christian. does persons were “The who were thus excluded members the Roman objected oaths, persons persons Church, who who were (7 Quakers say, In and Jews. and Will. Christians: we Ill, supremacy required 27) were c. the oaths of elected; and electors had also take as well as the the electors permitted abjuration. Quakers to make In 1696 were the oath of George taking' On the accession an affirmation instead of I, oath. slightly Catholics then could not sit the oaths were altered. properly speaking could not vote until either House elections, parliamentary tendering in but the business of oaths to very long, gone the voters had made elections so it was not through required it, (1794, unless the candidates and statute 34 Geo. Ill, permitted daresay 73) omission, this so I c. that Catholics did IV, (10 7) vote. The Catholic Belief Act of 1829 Geo. c. substi take—they tuted another oath which Catholics could had swear allegiance, pope jurisdiction also had no civil or author ity realm, within this and that would not subvert the church any privilege establishment or exercise to weaken the Protestant religion kingdom. in this The Catholics who would take this oath enabled, House, parliamentary were thus sit either vote holy were, however, expressly elections: Catholics orders excluded previous year, 1828, great from the Commons’ House. In the given non-conformists, by measure of relief had been what generally repeal Corporation (the called the Test and Acts Test wholly repealed), us, Act was not but this does not concern parliament Protestant dissenter had not been excluded from nor from voting parliamentary elections, many but he had been excluded from requirement offices requirement, that he should take the sacrament. This passing ever since had been evaded indemnifying annual bills those office-holders who had failed to take the sacrament. In declaration was substituted for the sacra test, mental a declaration to the effect that the declarant would not privileges injury use his necessity of the established church. The making (31 such declaration was removed in 1868 Vic., Maitland, 72).” History England, c. The Constitutional (1931). 364-366

It is instructive to observe that all of the oaths before 1776 mentioned Maitland are to be found set forth at length 105 of chapter Allinson’s Acts which, it (1776), will be re- called, was the force of given law by XXI of Article Constitution of 1776 “until altered by the legislature colony (such are only excepted as with incompatible Charter).” This act was passed 1722 and the oath of therein allegiance given was as simple as our forthright own oath of allegiance: sincerely “I AB do Profess and Swear that I will be faithful and Allegiance Majesty King George. help

bear true to his So me God.” (Ibid. 63) The Oath of Supremacy, Oath Abjuration and the Declaration against Transubstantiation, the Invocation of Saints and the Sacrifice of Mass, on the contrary, were in Elaborate pro- controversial tone. in verbose language or of justices in two more the act for provided visions were suspected oaths to the several person the peace tendering the him before disaffected, for or taking of being dangerous before Council, and him over to appear in binding Governor refuses Court, where if he still the next of Supreme term the con- a recusant popish, oaths shall “be deemed take the he History Thus does be proceeded against.” vict as .such New exhibit Colony in and in of Jersey both England of oaths. legislative and political, both danger, religious the Declara- oath officeholders which survived for only was the oath of which tion of Independence 19, 1776, which on September re-enacted substance unamended on the books and unchallenged remained statute uatil 1949.

It is on us that there was an oath legislators urged of 1776 Constitution but that notwithstand- prescribed by enacted existence of this oath the promptly ing Legislature The constitutional oath for oath of allegiance. legislators final of the article Constitution of embodied is in full because of sheds light be tire quoted must of Constitution: the nature that on aforesaid, every person, That who shall be as “XXIII. elected assembly, shall, legislative council, a of house of be member or assembly, taking previous to his his seat council or take affirmation, solemnly declare, following T, A.B., or viz.: do that legislative assembly (as a of the council or the case as member colony any law, vote, be) Jersey, of New will not assent injurious public proceeding, appear wel- which shall or me repeal part colony; nor that shall annul or of said fare colony, which third section in the charter of this establishes assembly legislative council and shall elections of members of twenty-second charter, annual; part of nor that section said be by jury; annul, repeal, respecting or alter the trial nor shall eighteenth any part parts of the same nineteenth sections any persons, religion).’ (dealing who freedom of And with hereby aforesaid, empowered to administer elected

shall said the said oath or affirmation.” members of 1776 was to recall that It important document, the Decía- adopted days two before revolutionary ration of Independence without any vote of the ratifying committee, after two people, days of two and one- drafting half days whole, discussion by the committee Brdrnan, one day deliberation the Provincial Congress, Jersey The New Constiluiion 31-33 (1919). As pp. will be seen Article XXIII above the Constitution quoted, statute, 1776 was its merely deemed framers to be statute, albeit an important type Magna but Carta, nevertheless statute amendable created any Legislature the oath except under it insofar as of members of the the the four Legislature precluded them articles amending of the Constitution XXIII. enumerated With this Article view of the nature of could not be con- the 19, tended oath that the of of September was in anywise unconstitutional. is the course of

Equally significant events the Constitu- tional The Convention of 1844. the of Convention members them had before for a report debate containing following paragraph: legislature, by of “7. Members and all officers commissioned authority state, shall, of this before enter on the duties of their respective offices, following take and subscribe the oath and affirma- solemnly affirm, may swear, be, tion: ‘I do as the case I will the constitution of the United States and the constitution faithfully Jersey, discharge of the State of New and that I will according duties of office to the best of of....................

my ability.’ Assembly And of members elect the Senate or General hereby empowered are to administer to each other the said oath or Proceedings Jersey affirmation.” the New Constitutional Conven- of tion The discussion on this paragraph as to the illuminating for reasons this before its amending paragraph insertion in IY, Constitution of 1844 as Article YIII, Section para- graph (incorporated Constitution of Article IY, YIII, Section 1). “Mr. Naar paragraph First moved to so take, amend as to all officers to require addition to the oath prescribed officers, in the report for all the oaths now law: prescribed 'but a general repugnance being expressed oaths, the motion multiplication Convention to the moved amend withdrawn.” “Mr. 393) was Gilchrist (Ibid. other as to authorize forms prescribed so Legislature “Mr. Hornblower sec- or to them dispense oaths with entirely.” inbe power as he said it would onded this amendment, sentiment should on if public change Legislature, with “Mr. Naar to act accordance it.” subject, suggested far, that this as it would leave it power was too going he test, oath, or a fix a religious Legislature 394) no to that.” (Ibid. was sure one was submit prepared n “Mr. out ‘and commissioned moved to strike Jaques officers ” “Mr. amendment was authority Jaques’ this state.’ He words to. then moved strike out agreed ‘of officeof ‘of member assembly and insert senator or general be,’ to.” (Ibid. 395.) case which was agreed debate, In face of out of which the constitu- grew in P. L. c. oath for the re-enactment tional legislators, of the oath of 866), September (p. in- construction of the contemporaneous cannot deemed insofar as any statutory tent of the Constitutional Convention for are concerned. oaths members of the Legislature members of the constitutional prescribed Legislature interference, exclusive beyond the power legislative was still free to the oath Legislature prescribe though State, for all officers commissioned other allegiance down any Constitutional Convention struck constitu- having tional oath for state officers generally.

There seems been either on the floor to have said nothing Convention of 1947 or in its of the Constitutional Legislative on of the subject constitutional for legis- Committee Indeed, the reference subject to the the records only lators. in a Constitutional Convention of is pamphlet 31,1947,” Committee, of the “Report Legislative July entitled 14 it is on 12 and said: where pages proposes following provisions “The that exist- Committee of the * * * change: ing retained without substantial Constitution relating Paragraph provisions the form of The oaths of mem- legislature.” and officers of the bers Nor was there debate the Constitutional Con- either vention or on the any committee of the oath for state subject officers prescribed I, Article VII, Section paragraph the new Constitution that the lack supplies of a constitutional oath for state officers that in the generally existed Constitu- tion of 1844. record of only The this matter anywhere of the Constitutional Convention proceedings on that Mrs. Edwin July Bebout, 1st as a represen- speaking tative of the of Women Voters before the Committee League Executive, on the Militia and Officers, Civil stated: suggest every appointive “We state officer should take an oath to the Constitutions of the United States New Jersey Legislature.” as do now of the the members VII, I, of Article substance Section paragraph are, derived, considerable number of the other provisions I, from Article VI, Section 1, of paragraph the draft of the Constitution Revision Com- mission of 1941 (Report, p. 50).

Thus, there is nothing history either the Constitutional Convention of 1844 or of the Constitutional Convention of 1947 lends countenance to the idea that the Legislature was authorized to in addition impose oaths to those set forth in the Constitution on the classes of public officials covered In the view we hereby. take of the exclusive nature of an oath prescribed Constitution, 21, 22, 24 Chapters and 25 must be declared unconstitutional and void. reached this Having conclusion, it therefore be comes for unnecessary us to consider the other on grounds n which these four have statutes been challenged.

This decision in nowise affects the duty owed aby legislator state officers generally State. Even it is beyond though power Legislature prescribe an oath of allegiance members of the Legislature other officers, state are bound, nevertheless with along every citizen, other in their the State even in the absence oath; of an “All subjects are equally bounden to their ifas allegiance they oath; had taken the because it is written by the of finger the law in their hearts, and the taking

593 declaration outward is but an oath corporal Stubbs, Institutes, The Con- also 3 121; 2 see same,” Coke's Com- 555, and Blaclcstone's England, History stitutional is such “Natural allegiance it is said: where mentaries im- dominions the king’s as from all men bom within is due first which birth.” mediately upon Allegiance, their as king part subject from the purely personal owing Law Engalish law, History feudal 3 Holdsworth’s country territorial in this 56, 461, become has since long State, 73, Burgess, Idem citizen his owing only-does Law 51. Not Constitutional Political Science and moreover, seem, it would continue but of allegiance duty be- to state distinction difficult, not impossible, to be if before allegiance tween of our traditional scope the Constitution. an oath support 1949 and the scope is affirmed. below judgment important J. It opinion). is (dissenting Oliphant, between an in mind the distinction this discussion to bear An oath of office and an oath of office. oath of allegiance definition; necessary, it I deem it self-defining. needs no an oath of alle- however, to state what understanding my is under our form of and to whom and giance government what form the due. allegiance of a in its application subject sovereign

Allegiance Lord (1 back to Coke Coke history. say’s goes early English Littleton, on : is that lawful ligeance a) “Allegiance- which subject obedience is bound to render to his sovereign.” Bl. No. 366 et calls it tie or Blaclcstone (1 seq.) ligamen which binds return for subject King, that pro- subject. tection offers the King are There marked distinctions between the due by a subject and the due citizen which need citizens, on here. elaborated When we we speak mean of a free and the people relation which their stand to does government, incurring obligation thereunder; the institutions of freedom every citizen and officer thereof is bound to obedience to the yield 'With,us, the

government. as a people organized government are a sovereign, the citizen to that duty sovereignty. owes

In this due to our form of country, citizen government, is under two States, the.State and the sovereignties, United but his is not inconsistent obligation with itself because these operate other, one within the and there is no sovereignties conflict. It is commonly accepted language speak the United a States as and such sovereignty, is; it and to speak states, several states as sovereign for such are. is the tie which binds the citi- Allegiance zen and state just as is it tie which him to binds state, United States. in a stands lesser course^ but is a degree whole. part

It is not an unseverable bond. A citizen even divest may himself citizenship United States and become may an expatriate, but while the there are mu- relationship exists, tual There are obligations. from the obligations sovereign- country citizen, state to from the citizen obligations Those of us who were sovereign. born into citizenship hold our great rather country possession lightly, but there are those in other parts the world who would give all they possess of worldly goods gain great prize who would if, life give itself so could doing, they bring that citizenship and the protection that with it goes to those they love.

It manifest that if it is to government, continue, must have the loyalty of its or, citizens it in another putting way, the people, as a acting whole their through various orderly processes, must have in this common enterprise, the support of the individuals who hold themselves forth as mem- being bers of this organized society who receive the accordingly reciprocal benefits.

Ours—both state and nation—is constitutional govern- ment, constitutional the sense of the British constitu- tion—a collection of customary unwritten constitutions bemay changed by parliamentary action—but sense of a written or rigid constitution which bemay changed only accord with its own provisions or, in the of a case an state, constitution, as was formed by a new formed from and orderly assembly representatives delegates within elected democratic fashion people orderly of law of constitutional concept acting agency government. duty and the obey the obligation involves

Allegiance command of sovereign obey duty It protect. and defend the protect to duty preserve, and involves for a form, is most suitable In this the duty Constitution. more than Indeed it actually comprehensive republic. have A of which I breach spoken.

other oaths of allegiance treason; may the oath many ways of it constitute but re- to The oath usually violated acts inferior treason. by oath of alle- then, of all the embraces quired country, much can embrace and more. giance of the people,

Our is obedience to duty government it it would with carry other duty, if I believed there not know our the reason we could for terror, unimaginable Italian to it. The great or who has command duty right described the admirably great historian Eerrero has Guglielmo itself con- a knows to be fear that seizes which government in ter- is condemned live tested and “Power illegitimate. Eerrero, vio- ror,” in order to it “because uses govern, wrote arbitrary power lence and terror. fear the subjects Its itself fears the power subjects while they obey, must ends, Abel; it he commands. Cain fears that is why whom Eear him. Here is of the explanation Holy slaying fear it the fear inherent merely power, dictatorship; its of the revolt of fear which from the outset subjects, very force.” seizes that are founded on upon powers under our to an established government True allegiance alter or people does system negate right form the de- abolish it whenever the becomes government for which of the ends it was created the people. structive the exercise of this is not power But within revolutionary term as I understand it. meaning We have in our lately State experienced change govern- sanction, ment constitutional method under legislative

with cooperative action all of the 'by people, first by electing delegates finally by approval of.the result reached by those by the in a delegates people regularly constituted elec- tion. I look upon that as a pursuit of constitutional methods. system established, been it must having itself as well in govern, the matter of reproducing repair- as in itself that of itself and its subordinate ing protecting A without. members from the of harmful operation agencies for the founded, as once is the government, people, organized part Neither attainment of the ends of government. as a disso- nor capacity, acting their individual people, mass, ciated, competent are non-organized legally change all, con- is to be done structure. If that their political or with tlqe government, with sistently integrity done citizens, through it must be safety happiness themselves, govern- for purposes the-people organized to know where word, ment. In a is a of the governed right and magis- institutions to look lawful successors except under which now live—a impossible trates thing law. when succession place takes according Revolution, is a term, as understand ox- political act law, done in acts violation of or without law. The a act is one and xxot be political is to confused with the xnis- ordinary or act, demeanors felonies. an Such to be revolutionary, either, first, must be doxxe accordingly, in law; violation of is, Constitution, or of the customary or statute law, law, the term including letter, together with its necessary or, implications; law; secondly, without which by meant, is that the act must rest, warrant, for its on abstract coxxsiderations,isuch as physical power, or necessity, natural equity, and not upon the authority order, social existing to which it is extrinsic or hostile.

It is hostility to established law both constitutional and an statutory marks act or purpose revolutioxxary. If it x-esults it successfully, lays foundation for a new order of or thixxgs fails, If it government. he who did it is subject to the penalties under the established system. or overnight read of an overthrow we Erom time to time seizure, mere by physical a government in a few minutes of a crucial time place. a applied of might superiority uncon- of a That an illustration change is stitutional methods. terms, in rather abstract but

I have of revolution spoken unlike a sense of which a revolution today revolution our a I have much easier in to start revolu- day It is spoken. tion to end one. It is much succumb sur- than easier to than of it. When a revolu- to a rid prise dictatorship get can or dictatorial be assumed to be regime, tionary d’ctad, familiar with the of a technique coup makes every maintain and to itself all power effort to itself defend the modem arms of it today which the State would disposes, if a revolt or a counter-revolution were ever astounding to break out.

In revolution way, this escapes and is people, subject masses, no to the influence of longer the nation. It becomes identified with by which it is authority, absorbed. then becomes end itself. Authority To remain in power all and against make everything, power supreme, exclusive permanent attribute of the leaders, and its party object sacrifice ideas all men who become troublesome superfluous, the end to which a totalitarian regime naturally tends inevitably today. struggle against subject or citizen in such a regime

loses character; its revolutionary soon ceases be a ques- pf tion doing violence an individual with the object of cor- recting him. The improving problem becomes one him in keeping subjection just man, because he is a because his natural human reactions, unless they are crushed before- hand, lead might him to contest the legitimacy dic- tatorial power seized. It is total rupture the rights of subject citizen as a man that seems to be the distinctive trait of a revolution by force violence where it is experienced today.

Therefore, I am of the firm opinion that true allegiance to our established system of government negates right

598 abolish the form citizen or alter attempt any or other force or violence the use of of our government means; I understand or unlawful unconstitutional limi- word “unlawful” to mean violation of constitutional with “unconstitutional.” tations and as synonymous is to the United States Our allegiance State, duty and the Constitution of the and it is dis- instruments is demanded and commanded to be those is every day each and obedience must follow on charged, up. who under the thus set everyone lives an oath that the affiant oath of allegiance regard constitution estab- faith and true will bear he will defend authority people, under the lished enemies, domestic, he does not foreign against himself or others of force and violence the use believe he for the overthrow established government, others, either to such a de- directly party, through effort, to a structive and that he owes no allegiance foreign or an of our own enemy sovereignty. sovereignty how a I do not understand democratic government may if are not in such endure its citizens mind and position truthfully as to able to subscribe to such an circumstance if and I do not understand required, why citizen good if hesitate to subscribe to such an should, oath. required, above to which defining sovereignty expressed The views of this State is due of a citizen accord 419, in Chisholm v. 2 Dall. Georgia, 1 decisions with the Doane, 507; v. 3 Dall. 1 L. 440; Penhallow Ed. L. Ed. Peck, 87, L. 162; 6 3 Ed. Cranch. Martin v. Hun v. Flelcher 97; Ed. ter, 304, 4 L. McCulloch v. 1 Wheat. 4 Maryland, 579; Cohens v. 4 L. Ed. Virginia, Wheat. Wheat. 257; 23; v. Wheat. 6 L. Ogden, Gibbons Ed. L. Ed. 122; 20 L. 11 Wall. Ed. Day, v. see also Buffington 24 N. J. Misc. 243 Ct. Hardgrove, v. Kersting (Cir. 1946). follow recognized views above authorities and are in My advanced and the with the decisions arguments accord Cases, Hunt, ex rel. Ed. v. McCready State Allegiance McMeekin, McDaniel v. ex rel. Hill 19 S. C. 1 State the Conventions (1887) Constitutional Jameson In (1834). “No constitutional said: eases, two these author, to referring ability with greater discussed ever been has question in these raised were those States, than in the United learning cases.” pre- various questions examine the now proceed

I shall considerations of the foregoing in the light this case sented by applic- examine the directly and proceed and principles both allegiance, as to provisions the constitutional of ability implementing state, applicable with the together federal and of oaths forms of required the the which prescribe statutes allegiance. New colony of this of the people

The oath of allegiance in Chapter is found Britain of Great Jersey King as to majority I with Laws (1776). agree Allison’s of conscience freedom as an invasion vice of that oath vices I do agree expression religion. the exclusive nature authority inherent therein are Nor Ido agree in our Constitution. one oath incorporated Article XXI of the this oath was real force by given the Declara- adopted July 4, 1776. July tion of Independence, adopted oath to British crown Erom either of dates the these was without because became efficacy, revolutionary gov ours ernment, insofar as the British government a revolu concerned. Not was the Continental only Congress body but convention which our Constitu tionary adopted convention, tion was the Constitu revolutionary although tion itself was fundamental instrument of 2, 1776, this State of the 1844 July adoption Constitution, and was submitted to execu legislative, judicial tive and departments and also government, State, the force of a people constitu having State, tion. Bott v. 62 N. Secretary J. L. 118 (Sup. Conventions, 1898); Ct. Jameson Constitutional § is the matter, This historical fact of the although agree with the 1776 Constitution was deemed majority statute, statute, its framers be “a albeit important Carta, but nevertheless statute amend- type Magna able created under it.” by any Legislature XXIII,

Besides Article Constitution of contained the following language: always, meaning and true “Provided it is the intent and of this congress, if a reconciliation between Great Britain and these place, again and should take the latter be taken under

colonies government Britain, protection of the crown of Great and this charter void, to remain firm and shall be null and otherwise inviolable.” I do think it necessary At this late date to deal with as to where the rested in the abstract question sovereignty history. moments in our those Revolutionary embattled of the new nation and of this State consisted government of the Continental Articles Confederation Congress, Revolutionary and our own Constitution of 1776. I have noted that the Constitution of and particularly XXIII -contains no oath of Article as such. The allegiance oath set out therein is oath of office rather than an oath of allegiance. 19, 1776,

On P. L. September Legislature enacted officers, 2 which that all both required c. civil and military, then officeor thereafter should take appointed the following (cid:127) oath: sincerely “I, B, profess swear, (or, people A do and if one myself Quakers, affirm) called do not hold bound to bear King help Great Britain. to So me God. sincerely B, profess swear, “I, (or, people and A do if one of the Quakers, affirm) I do and called will bear true Faith and Allegiance to established in the Government this State under

Authority People. help of the So me God.” oath of This was single allegiance required during to revolutionary period prior adoption of the United States.

The Constitution of the United States in 1787 adopted ratified established the United States a representative form republican government guaran- IY, Article teed, section type each of the several states and further guaranteed protect them on each of invasion against application legis- lature, or of the executive cannot be (when legislature domestic violence. convened) against YI, In 3 of the Article United paragraph States Constitu- tion is provided: Representatives mentioned, “The Senators before and the Legislatures, Members of several State executive and

judicial Officers, States, both the United States and of the several Affirmation, support Constitution; shall be bound Oath or religious required Qualification but no Test shall ever public office or Trust under the United States.” This is a clear direction mandatory that the officers men- therein, tioned whether are officers, federal or state are to take a required formal oath of

Constitution of the United States. The does not provision set forth the form of nor does it to state attempt whether the oath shall he constitutional oath in each state or as bemay provided by statute. The decision in these mat- ters is to left the and to the several Congress states.

From the first very statute enacted by the of the "Congress United States down to the present moment the has Congress implemented this of provision the Constitution statute. by 1, 1'789,

On June the of Congress the United States as Statute Chapter enacted the following oaths of allegiance: (House of) Represen- 1. Be It “Sec. enacted the Senate and Congress assembled, tatives of the United States of America in That required by the oath or affirmation the sixth article of the Constitu- States, of tion the United shall folllowing, be administered in the.form T, solemnly (as to wit: A B may do be) swear or affirm the case ” support that I will the Constitution of the United States.’ enacted, “Sec. 3. And be it further That the members of the legislatures, legislatures, several State next the sessions of the said respectively, judicial and all executive and officers of the several states, appointed, who have been heretofore chosen or or who shall appointed day August next, be chosen or before the first of and who office, shall, thereafter, shall then be in within one month take the affirmation, except same oath or where shall have taken it before; by any person be administered authorized the State, holden, law of which such office shall be to administer oaths.” Large, p. 1 Statute at until 1862 when oath from 1789 This oath was required oath enacted the following the United States Congress under the Federal to officers elected or appointed applicable 128: Chapter Constitution. Laws of Representatives and House of “Be enacted the Senate Congress assembled, That hereafter of America in United States every any profit person appointed to of honor or under elected or office military States, civil, government of either in or the United service, departments public excepting naval the President entering upon States, shall, of such the duties the United before any the.salary oifice, being and entitled to or other emolu before following thereof, or affirmation: ments take and subscribe the voluntarily B, solemnly T, (or affirm) I have A do swear that never against I since have been citizen borne arms the United States voluntarily aid, countenance, counsel, thereof; given that I have no persons hostility thereto; encouragement engaged in that armed or to sought accepted attempted to exercise the I have neither nor nor any whatever, any authority pretended office under or functions authority hostility States; yielded that I to the United have any authority, voluntary support pretended government, power States, within United hostile inimical thereto. or constitution my (or affirm) that, knowledge I swear to the best of And further do ability, I of the and States, against will and defend United foreign domestic; enemies, that all allegiance will bear same; obligation faith I take this true evasion, any purpose freely, without mental reservation faithfully discharge duties of the on I will office well enter, help oath, which I am so me Godwhich said so about signed, preserved among court, be taken and shall files Department may ap Congress, which the House of pertain. said office any falsely And who shall take the said oath shall conviction, penalties guilty perjury, and on addition be offence, deprived prescribed for that shall of his office and now holding place incapable forever after of office or under rendered July 2, Approved Large, 1802.” 12 Statutes at United States. 1873-74, p. 313). p. (Revised Statutes It is this latter oath was a test oath of indisputable United sovereignty in form States. Oaths similar have been referred to as such in all opinions problem where discussed. 1-867,

In test oath required by similar Constitution of the was State of Missouri attacked and held unconstitu- Missouri, 277, v. 4 Cummings 356, tional Wall. 18 L. Ed. on the that the test oath was both a bill of attainder ground

603 I, ex law and an and violated Article Section 10' post facto to limitation on Constitution relating the United States Court on The same day Supreme powers. very state enacted January an act of Congress same held that grounds take the fed- counselors attorneys requiring under Article unconstitutional out was eral test oath set above In re Gar- I, power. congressional Section applicable both cases land, L. 366. holding Ed. Wall. inflicts punishment past act which was that legislative trial, a bill of attainder conduct, judicial without used in Ar- as term ex within meaning post facto Constitution. I, 9 and 10 of United States ticle Sections but high times and were feelings running Those were bitter cases, in these or in the arguments these opinions, nowhere was a the enactment of the oath viola- was it suggested 3 of the United States Constitu- YI, tion of Article paragraph the Eederal Government tion, which section to both applies states. and the on As a result of these two decisions which ground based, were was included in the 14th Amend- Section States, ment to the and this sec- the United in effect from office who refused to tion disqualified persons take this test oath in form iset out. Section 14th as Amendment follows: provided Representative Congress, or “No shall be Senator or any President, office, or civil and Yice hold or elector President States, any State, who, having

military, or under under the United oath, Congress, previously an as or as taken a member officer legislature, States, as a or as member State of the United any State, judicial officer of the Constitu- an executive or States, engaged in shall have insurrection tion United same, against given aid or comfort enemies rebellion House, Congress But a vote of two-thirds each thereof. disability.” such remove The 14th ratified Amendment was Antici- July on July ratification this Article pating Congress 11, 1868, Laws of 1868 enacted Statutes at Chapter (15 Large, page 85), provided follows: any participated person re- who the late has “That whenever arising legal have bellion, all therefrom from disabilities and whom Congress by by of two thirds of each act of vote removed been house, any appointed office or elected or shall be has been or States, government place he of the United under the of trust or thereof, entering upon shall, instead oath the duties before sixty-two, July two, eighteen by prescribed hundred the act I, B., following A. do or affirmation: oath take and subscribe the solemnly support (or affirm) the Con- that I will and defend swear foreign enemies, against domes- all the United States stitution of same; ; that I to the I will bear true faith and tic any purpose obligation freely, mental reservation or without take this faithfully discharge evasion; the duties I will well and and that help So God.” I am about enter. me of the office on which when enacted Chap- taken The next step by Congress Large, page 412) of 1871 Statutes (16 ter Laws as follows: provides any ineligible person who is not rendered to office “That when Constitution, by provisions of fourteenth amendment to the any appointed to office of honor or trust under be elected or shall States, account and shall be able on of the United prescribed participation oath in the late rebellion to take the his July two, eighteen sixty- Congress approved hundred and in two, act of oath; entering upon person shall, before in lieu of said said prescribed office, in an of said take subscribe

the duties prescribing Congress ‘An act oath of office to act entitled legal persons whom disabilities shall have been be taken July eleven, eighteen sixty-eight.” removed,’ approved hundred and deal until 1884 subject did not with again Congress 46, Laws when it enacted Statutes at Chapter (23 all which is the oath federal Large, page 22), required A., 5 U. C. Section 20: today. page officers S. by any any appointed oath to- be taken elected “The or profit civil, military, service, or naval officeof honor either or ‘X, except the President of the United States shall be as follows: solemnly B, (or affirm) A I will do swear and defend the against enemies, foreign States Constitution domestic; United same; that I will true faith and bear freely, any obligation that I take this without mental reservation faithfully purpose evasion; discharge and that I will well and help which I am about to the duties of office on enter. So me prescribed existing This the oaths God.’ section shall not affect performance special par- statutes in relation to the of duties provisions employments. ticular offices subordinate claim, obligation, duty,. right, shall in no manner affect section May 13, 1884; and all penalty existing on or before or incurred penalty claim, obligation, every right, duty, shall and and such thereto, given heard, determined, the shall be tried and and effect passed.” same if had not been manner as this section intended to this act by The form of oath prescribed taking of necessity relieve those to whom it related the as known 1862, commonly the oath the Act of by required modified the Oath, the in lieu to require Test thereof oath P. General Attorney O. prescribed. by

In 1898 Laws of the 'by Congress Chapter a created Section by two-thirds removed all disabilities vote 3 of 14th statutes. the and the implementing Amendment A., 5 U. S. C. section 15. of allegiance various oaths statutory

I have set forth these of the Con- Article VI pursuant enacted the by Congress demonstrate that conclusively it seems to stitution because all officers desig- constitutional provision requiring the or affirmation to an oath by nated therein “shall be bound * *” * has never been considered this constitution support law has prescribed Congress self-executing on occasion it has to be used and form of oath precise constitution.” “to beyond simple phrase support gone I, Statute The construction on this since placed provision that the Laws of down to date Chapter Congress is this provision has and did exercise the power implement the form oath of allegiance both as to contents referred to in the has never been provision Constitution. In construed as it is not. obviously self-executing, the causes where the oaths were not were challenged they VI, but under Article under other provisions challenged Constitution which individual citizen. protect rights office

On the other hand the oath of of the President of the II, in Article 1 in the follow- States is set out Section United form ing language: solemnly faithfully (or affirm) I will “I do swear execute States; of President the United and will to the best

the Office my ability, preserve, protect and defend the Constitution United States.” this,

Obviously is self-executing complete provision. To date the has never act or passed pro- Congress single vision President, from the adding oath detracting which is indicative of a basic distinction between two these separate and distinct A constitutional provisions. provision in the form of the oath or the oath presidential legislative IV, VIII, sec. our (Art. par. provided in Constitution 1) free from binding self-executing provision, encroachment Cases, supra. Legislature. Allegiance My conclusion in this further buttressed respect fact. The following

United officers, 'States of all state to swear required to support the Constitution of the United States as prescribed by Statute I, 1, 1, 1789, Laws has remained Chapter Section of unchanged date, down to often re-enacted. Rev. though Secs. 324; 6.1 30, 1947, at Act page Large, Statutes July Secs. 101, 102, A., 642; 4 page U. S. C. §§

I return now to the oaths of in this allegiance State. of P. L. 1799 Legislature this State by (Paterson’s Laws Sections 1 and 2), enacted February 20, required is or shall every person who law required the by give assurance of and fidelity attachment to the government this State shall take the oath: following sincerely profess swear, “I. do and I do and allegiance will bear true faith and established in state, authority people. help under So me God. enacted, governor being, “II. And be it That for the time every state, appointed of this who shall be or elected any office, legislative, executive, judicial, authority or under state, any thereof, every of this or to office in the militia coun- sellor, attorney law, shall, upon solicitor and before he enters office, trust, duty, foregoing execution of his take and subscribe the allegiance.” any grand petit juror, already “XIX. That if who hath not allegiance state, refuse, taken and subscribed the oath of to this shall required by court, allegiance if to take and subscribe the oath n prescribed by any act, court, summoned, to which he shall be any every offence, by court, shall, for such be fined the said he thirty dollars; eight than than nor more clerk sum not less juror a certified list of the name said court shall deliver county, thereupon fine sheriff of the who shall and the awarded to the levy same, by juror’s goods, make the distress sale of such with costs. any neglect That if or usher shall or refuse “XX. schoolmaster allegiance, space for the to take and subscribe the said oath of upon profession, one month shall, he duties after enters- of his he every expiration month, for week after the of the said that he keep usher, 'to continues school or teach as an until he shall take and dollars, by oath, subscribe said action forfeit four to be recovered debt, costs, by any person, with who will sue the same. any person, “XXI. That if who shall be elected to office assembly joint-meeting, neglect the council and shall or refuse to qualify office, during space months, into such after for and two being by any informed of his election member of council or assem- bly county resides, for the in which he clerk of the court pleas county, of common of such his said election shall thenceforth be void.” This oath similar in form and substance to the oath and oath, the federal and these were the only oaths of required law this State down to the adop- tion of the Constitution of 1844.

The opinion of the majority makes certain references to the debates which occurred that convention and I therefore have made some authorities, examination of these although for reasons hereinafter stated I do not deem them to be controlling.

In the Convention of the Committee on the Legislative did not Department include an oath of or an oath of officefor members of the in its Journal Legislature report. Convention, 50. But the oath referred page proposed into the majority was included in opinion of the report on Subjects Committee Referred to Other and Committees Convention, is found in 7 thereof. Journal paragraph 83. There is no reference in the official page journal debate The quoted majority opinion. remarks quoted taken from an are unofficial compilation made under fed- works project eral was news- compiled various of convention Even if paper reports day activities. these were official the rule of construction is reports

608 intention must be out from the of the Con spelled language stitution itself and we cannot and journals nor go debates to one’s determine intention. In re Hudson memory to 62, N. A. County, 106 J. L. 73 v. p. (E. 1928); Flagg & Johansen, 1940). N. L. J. 456 Ct. (Sup. for a moment oath It was proposed: as

Considering and by be taken “members of the all required legislature, * * commissioned by the state authority officers Mr. moved to strike out “and After discussion Jaques officers commissioned was state.” This motion agreed 1844, Proceedings to. the Constitutional Convention Convention, 394. See Journal section page page article, 32 of the and 227 for the legislative page adoption of this section without further other than amendment amendment. Jaques’ therefore,

The oath of in the Constitution single allegiance, IY, the form of oath Article Sec- prescribed tion which is a combined oath of paragraph and office members the Legislature: solemnly affirm, may (or be), “I do swear as the case I will the constitution States the constitution United and Jersey, faithfully discharge of the State of New and that will general assembly, (or duties of senator member of the the case my ability.” be), according to the best of office, There was no constitutional oath of that Constitution for the Governor or other officers com- missioned In the State. 1875 the Constitution was amended Article'IY, Section paragraph adopted Septem- 7, 1875, ber contains an oath of officefor officers of the Legislature.

These two are provisions mandatory self-executing were the Constitution of without incorporated change IY, in Article 1 and 2. These are con- Section paragraphs oaths which cannot be stitutionally prescribed enlarged altered and are free from encroachment Legislature. Constitutions, 1776, have contained

All our full, the latter two only oath of office but legislative reason, probably, have contained allegiance.

609 convention would it be anomalous to thought permit to Legislature prescribe own oath of its office. This . a just suggestion, but fact remains that the' to power prescribe oath of and the allegiance various oaths of office for all other State, commissioned officers execu- tive, judicial and military, was left to the Legislature subject to the restraints and limitations of both the Eederal and State Constitutions. 1846, Legislature to a extent composed considerable

of the same citizens who were 1844 conven- delegates tion, by 1846, P. L. 25 Chapter re-enacted all the practically oaths and Laws, 376, sections of Paterson’s except page section to school relating -teachers which was a replaced by section to applicable justices of peace. It continued if provision that a member of the Legislature neglected failed to for such office within qualify two his months right office was null and void.

It is hornbook law that office, an qualify an accept elective or appointive officer must take the oaths prescribed and office. It is because of this principle proper include reference to members of the Legislature in such statute and such reference neither adds nor detracts from the constitutional oath.

These various have in penalty sections been continued statutes down 627, to the present. Nixon’s Digest page ; 21; sections Rev. 903 2 General Stat page utes 3771; 2:85-4; 3 C. R. R. (1895), S. S. S. 52:14-9; R. S. 2:9-7. P. L.

By 142-41, Chapter Cum. a further Sup. oath of was enacted of the con- language stitutional oath for members and this Legislature, oath was “in addition to official oath that be any may spe- and it hereafter cifically prescribed” applied “every person elected office state or appointed public any county municipality.”

While there redundance compari- language son with Paterson’s oath of this 1920 act did allegiance, certain (1) it for the first time things’: required officers; and

allegiance by county municipal it set forth (2) oath of of specific Constitution statutory allegiance in Unite'd States with Article VI of the Fed- conformity eral and the Federal above enumerated. statutes oaths These of are now found in R. 8. allegiance, various 41:1-1 and 41:1-3. 1947, VII, 1, of

The Constitution Article Section provides: n “Every officer, upon entering office, State before the duties of his support shall an oath take and subscribe or affirmation to the Consti- perform tution of and of the United States and State faithfully, impartially justly duties of his and office to the best ability.” his The conclusion of the is that majority opinion this section contains an exclusive oath A allegiance. comparison this section IV, with Article Section 1 of the paragraph same Constitution does not support position. The con- vention, if desired, soit could have incorporated legisla- tive oath of in identical terms and in language Article VII, I Section and could then with ma- agree jority, but this did not do. I find nothing quoted from the excerpts record of the constitutional convention remotely an (1947) such intention. esti- suggests mable lady was not a quoted majority opinion delegate but merely expressed every state thought appointive an officershould take oath to both constitutions. That what have been exactly state officers since 1789 doing and they required were to take these oaths in statutory order and the office. qualify accept

As I read the of this section it is similar form language and Article comparable provision VI language the United States think I have demon- Constitution, strated under that has exhaustively that section Congress of, form some consistently prescribed instances oath of beyond wording enlarged, general of that Such has been the con- provision. contemporaneous on struction provision placed Congress courts since is idle to the bitter suggest reconstruction days Civil War that such period 611 exercise of would power not have been if it had challenged been considered outside the powers under this Congress provision.

Contemporaneous construction of a constitutional provision which has been continued and followed since the founding our government a matter is entitled to practice great where the weight words be of doubtful signification. v. Hunter, Cohen v. Virginia, Martin supra; Cooley supra; Wardens, v. etc., Board 996; L. Ed. May How. Hill, 723; nard v. S. 31 L. Ed. 8 Ct. U. S. State v. Kelsey, N. J. L. 1 Wright Ct. Morris v. (Sup. 1882); son, 56 N. J. L. 126 Ct. In re County, Hudson (Sup. 1893); 106 N. J. L. 62 & A. v. Mar 1928); Burlington County (E. tin, 129 N. J. L. 92 & A. (E. 1942).

This principle is to the subject further that when rule later constitution an earlier adopts provision of one has received a certain construction, or contemporaneous judicial, this provision is deemed to be as thus con adopted Lorenzo, strued, v. State De 81 N. J. L. & p. (E. A. 1911). Such rule was in J. State v. 56 N. applied Rogers, L. p. Ct. in (Sup. Chief 1894), by Beasley Justice IV, Article construing Section Constitution 2, paragraph which was and is a (1844), of a clause of the im copy same port Constitution of the United States.

Therefore, VIII, since Article Section is a and of the same counterpart as the third sentence import of Article VI of Constitution, the United States I am forced that, to the conclusion as to members of the except Legisla- ture, of this may State Legislature pass implementing .the statutes oaths for all officers prescribing having as its minimum of the United States reqxrirements support Constitution and the Constitution of this It in State. this sense that I understand dictum of Chief Justice 316, 416, Marshall in McCulloch v. 4 Wheat. Maryland, 4 L. Ed. 579. outset, I

As said oath to and defend the support constitution than a oath more mere actually comprehensive em- established because it

braces a and more. It seems to oath simple allegiance, me that define and particularize Legislature if it within the constitu- stays obedience and duty required Constitutions, Federal State tional limitations of the in prohibi- the bill of found both and the particularly rights in Ar- found tion the test oath on religious grounds against ticle VI of United States Constitution. the various

I can not conceive that could think anyone referred to the majority opinion test oaths religious Division and in the briefs could of the opinion Appellate in view of our constitutional country pro- be enacted in this I am had the Legislature right visions. satisfied VII, Con- of Article Section to implement provision stitution case then is the proposed does question constitu- 21, violate such in P. L. Chapter

contained provisions. tional solemnly (or affirm) “I, I that will do swear States and the Constitution the Constitution United Jersey, faith and alle- and that I will bear true New of the State of giance established the United and to the Governments to the same authority State, people; will under States and enemies, foreign domestic; against that I do not defend them violence, force, in, or or other or advise the use believe advocate any change means, to overthrow or make or unconstitutional

unlawful in the State; States or in this established the United Government any organization, not a member with and that am affiliated persons, approves, association, party, group or combination force, violence, advocates, practices or other the use advises change means, any overthroto or make or to unconstitutional unlawful in either established; I am not bound so and that the Governments foreign prince, potentate, any allegiance state or sov- to whatever, help ereignty me So God.” unws, maxim exclusio expressio majority applies here It presented. resolution of the problem alierius to the to the sections of our Constitution to relating applied Governor, officers, viz., the of constitutional qualifications etc., V, and General Article Assembly, members the Senate of the 2; IV, authority 2. On the Article Section Section State, 1896); J. L. 271 Ct. (Sup. Johnson v. 59 N. cases Ibid., affirmed, 535, and Carrigan, State v. 82 N. J. L. 225 Ct. it is held that these cannot (Sup. 1912), qualifications concede, added to I law. This I do not changed but consider cases for several reasons. applicable While the maxim been in a quoted applied has few instances interpretation Sutherland Statu constitutions^ Construction tory yet the maxim is one (3rd Ed.), § Ibid,., which should be with caution, 4917. This applied '§ Jameson, is true it to a constitution. applying fortiori Conventions, et Constitutional Its seq. application § Constitution (1844) was some argued length Canvassers, v. 131 N. J. Borg State Board L. 105 (Sup. 1944), Ct. decision in that case on an turned although If it were other in that case with same ground. applied as here, impossible effect it would been have have held the Convention of

I did then and I do not question question the right now of the people assemble such convention to or alter change State, the fundamental law of the but out merely point these facts to with which emphasize caution this maxim of statutory applied construction should be to a constitution. A constitution deals necessarily many with subjects diverse objects, some connected and others with unrelated totally another, one to usually whereas statute deals with a single object subject matter. provisions

These these relate to sections the qualification aof citizen for necessary office. eligibility designated The provisions here considered related to being office and oath of which are prerequisites office, acceptance are the qualification they necessary formalities conditions must be complied full with before a entitled to office. investiture C. J. 960. Our does provide voters who qualified possess these be candidates for and be qualifications may elected if meet office these conditions of eligibility, these of personal sections contain definitions characteris- who qualifications tics bold office. persons

614 circumstances, Under such sncli must be held qualifications to mean the In equivalent fact, the word eligibility. very 1, is used the last sentence of Article Section IV, “eligible” which defines paragraph qualifications membership Board Com’rs the Senate and Guada- Assembly. Cf. District, v. District Court Fourth Judicial County lupe 29 M.N. 223 Pac. These and distinct provisions separate to oaths are provisions relating personal qualification, of a same as the to the issuance provision relating degree commission differs from that relating powers appoint method of election and can be considered scarcely ment same; them ás and the since the under power perform one in two articles and sections of separate is distinct given Madison, 1 2 v. Cranch. Marbury the Constitution. Ed. 60. L. sections on it has been held qualifications those

Despite of all the possessed even is personally though it is neces or statutory qualifications, constitutional personal that he must jure a de officer take before he becomes sary or statute for that particu constitution required Watts, 64 N. J. L. 473 Ct. v. (Sup. Manahan lar office. Hudson, J. L. 91 N. Freeholders v. 1900); Murphy Ct. 1918). (Sup. that the Johnson I am of opinion

Eor these reasons of similar are without import and other cases cases Carrigan here presented. to the questions application itself, to make P. want 1949, Chapter L. Now as to citizen has the every right I believe that clear. myself in the in, advocate, approve any change gov- advise or believe constitutional or of this State States of 'the United ernment of force advocation of the use not include means, but this does However, subject to the guaranty right violence. IV, form of Article given by government republican If Constitution. such a change States the United Section aban- form of government republican and the effected were such determination whether State, change in this doned guaranty political violated Borden, a justiciable not Luther v. question. How. 581;

L. Ed. Tel. Tel. Coast & Co. v. Oregon, 223 U. S. Pacific 56 L. Ed. Ct. 224. Sup. This as to each citizen right by Amendments I guaranteed I, XXIY of the United States Constitution and Article 2 of our Constitution. I shall note here paragraph that this article of our Constitution as to presented the con- originally vention of 1844 read reform same, “to alter or and to abolish one government establish These another.” form of italicized words were struck from the proposed provision by amendment.

Another amendment the effect that man proposed gave none of his up etc., on rights entering society, was defeated. The convention so confirmed its adherence doing constitutional form republican and the government restric- tions of the seek, citizen to alter and right such change form of within the framework of the government of this and the State Constitution of United States. Jour- Convention, 43, 46, 63, 88, nal pages The in the key words proposed statutory oath are “the use of force or violence or other unlawful or unconstitutional means.” The oath does not refer proposed acts past beliefs; speaks p'i-cesenti. provision directs an to what “mental reservation or inquiry of evasion” purpose federal (see oath) exist the mind the officer in the direction indicated by the words It 'is in the quoted. implicit oaths of both constitutional present allegiance, and statutory, therein, that when a expressed swears to though and defend the constitutions that he means he will lawful aotively resist means available to government the use of force or or other un- violence unlawful or attempt by constitutional means to overthrow or change government. reader make suggest leisurely perusal italicized matter in the oath and determine for him- proposed self whether is there which is not inherent anything “truth faith and expression estab- government lished or with word is used .“support”—if state” in its Constitution. I think there is just significance—of

not. You cannot bold with run with the hounds hares at the same time.

An attempt to overthrow the by force or government vio- ais lence revolution it is a done in political act violation If rests, said, law. Ias have for its warrant on force and power hostile established It is violation government. law constitution, statutes, which includes the letter and necessary of both. implications

Our been established it has the power having members, citizens, itself and protect its including of harmful and operations either outside disloyal persons the or inside this is government, provided exercised power within constitutional Where can it limitations. create or the impose day day by obedience to it those .who duty it, live under it hold officeunder in an except oath alle- be it to This giance the all- commanding discharged? is inclusive correlative each and duty we every right enjoy, and are under our form guaranteed exercise of government. Our Constitution defines the crime of treason specifically with particularity, counter-distinction to the indefinite and uncertain the nature of common law crime. This is but a facade the breach allegiance.

Another phase by is dealt with our statutes to sedi relating tion, as if involving public by does word or advocacy act of the overthrow of force. R. by S. 2:173-12 government to 21. and These similar statutes held have been constitu Tachin, tional. State v. 92 N. J. L. 269 Ct. (Sup. 1919); affirmed, 93 N. 485, dismissed, J. L. error 254 U. S. 662, 463, 61; York, L. Ed. 41 Sup. Ct. Gitlow v. New 268 U. S. 1138, 69 L. Ed. Ct. 625. Sup. State v. Cf. Gabriel, 95 N. J. L. 337 Ct. (Sup. These 1921). statutes define crimes and therefore the nature of crime must be VI, with particularity. set forth Amendment U. S. Con I, and Article stitution paragraph (1947), and such acts a clear and present present danger public and itself. welfare, government n a If acts can create clear such and present danger how can the public welfare, defend itself if government its in, the use of force and officers “believe advocate advise violence, means to over- or other unlawful or unconstitutional ask throw or To the question change government?” left to to answer it. Must defense of be government a in their individual pai*t capacity, acting-in people, so, ? If dissociated and defense and non-organized groups rest on law of the may solely support government even for revolution today, Under vigilante. technique latter futile and illusory, impossible. possibility might A cannot and affirm an oath to truly swear the Constitution of United States this State violence, without so believe its overthrow force or by doing It is with a mental reservation or evasion. purpose that a in the of our constitutions principle change organiza to be effected orderly tion our pro force or cedures ordained the constitutions Stone, Schneider fraud. Chief Justice opinion, Dissenting States, 87 L. Ed. man v. United 320 U. S. or the Ct. 1333. Sup. majority opinion Nothing matter of case is to or inconsistent with

subject contrary I have said here. what

It the statute here considered is bill is urged said, statute is in prcesenti promis- attainder. As Missouri, In re v. Gar- Cummings supra, nature. sory land, with which had been committed dealt supra, acts on case of v. Reliance is also United States placed past. Lovett, 90 L. Ed. Ct. 1073. In Sup. S.U. and unclear and could be statute was indefinite that case the acts but inten- only past present read so that it applied as the statements of the majority opinion tions and therefore attainder, in of a should be read the light bill it being acts, and of the statute as to past construction the possible of Mr. Justice made clear the concurring opinion this is Frankfurter. oath in cannot take the

If, proposed good because office, he fai'th, it is because admittedly he is disqualified out the and does not intend to oath to carry cannot a re- I cannot that such say the Constitution. and defend of attainder. amounts to a bill quirement For the I before, reasons find stated tire statute nothing inyades that the constitutional of individual rights citizens of freedom of expression and conbra-dis thought, speech tinction of a sworn officer and duty emplee is government. There not a single trespass semblance on freedom, for do not that religious any understand Cath olic,or Jew or other denomination owes duty any to another in the sense that I use the term. sovereignty Nor do I understand that citizen who bears a normal any foreign attachment of kind memories to his native land might embarrassed this oath. The taking answer to that that such a citizen took a similar oath when he became naturalized. A., 8 U. S. C. Secs. 137 and 735.

It is argued the naturalization statute has its very purpose exclusion of non-desirable aliens. As to the statute true, this is here but is the again distinction between personal characteristics and office acceptance duty. Ify taking n theoath of the alien candidate and assumes accepts his duty citizenship the United States.

In a certain sense citizens are naturalized citizens. What tire Constitution of the United but the most States authoritative, and solemn important act of naturalization that has ever known? By been the Constitution adopting United States did not the states declare that people becomes, citizen of every act, each state virtue of that a naturalized citizen of other state as a com- every separate and of all munity, as one nation?

It is next real objective urged oath is found means,” words “other unlawful or unconstitutional that all doctrines those in disagreeable to office can be out- said, lawed As I leading “illegal change.” key words are “force violence” and the word “unlawful” is synony- with mous “unconstitutional” and means in violation con- stitutional limitations. No one has pointed con- a single stitutional provision statute this country or in free that authorizes a country, change government to be accom- of violence. I do not plished by force deny person may in government advocate a means or change not au- steps

619 Constitution, thorized but in so he doing may not breach the Constitution and advocate advise that such a change shall be force, made by violence or fraud. Then he violates his as citizen a and the government its officers owe a to all duty the other citizens to their protect rights and their privileges government against those who would overthrow the government by force and with it their precious rights privileges.

It is next urged that words “I am a not member orof affiliated with etc.,” any organization, party, charge guilt by association. The first answer is this is a act, not crimes and a violation of it is not a crime. v. Dayton, State 23 Cf. J. Pleas, N. L. 49 Ct. (Sup. Hawkins 1850); c. 3.§ second answer a person who is a member of such association, etc., who has no of its unconstitutional knowledge and unlawful can purpose, truly swear and affirm true faith to our is all government—which this oath asks. he Does know of or believe in such unlawful purpose? course,

Of no provision, constitutional or can statutory, an prevent unmoral from falsely to such oath swearing hope opportune moment, at he with may, per- sonal impunity, be able to aid and assist in the overthrow by force. An unmoral person is what he he is because lacks the physical his courage convictions. I understand the word “affiliated” as used in the statute to mean more than -merely sympathy with its aims or even to aid it in a casual willing way. intermittent Affiliation in cludes an element of dependability upon the organiza which, tion can rely though equivalent membership does rest duty, upon course of conduct that could not be ended without least abruptly reasonable giving cause for of a breach faith. But on the the-charge good other hand he who with such an cooperates organization only its lawful activities cannot that be said matter of law to be v. Wixon, it. Bridges “affiliated” with 135, 142, U. S. L. Ed. course, Ct. 1443. Sup. Of once he discovers or is aware of its unlawful purpose citizen good under a to disaffiliate duty himself such a movement. said,

IAs citizen have cannot hold with the good hounds and run with hares at same time. the he who

But with such in cooperates its organization only wholly lawful cannot fact be said a matter activities that be it. law to “affiliated" with Affiliation must be of that indicates a in to quality which belief adherence the further- ance of the unlawful of the purpose overthrow estab- in State by lished this force or violence. The government word as used in the statute is used in the sense there is aor wilful to intent even such cooperate unlaw- knowledge A fortiori, ful same purpose. reasoning applies word “member." of the as so is not language statute construed indefinite

when assure that the purpose read its officers light of our shall completely spirit its government loyal It is not a crimes statute its purpose. question does due not arise. process had an

We labor outstanding example have movement months, few the last when thousands members dis- their covered that were controlled organizations by people who advocated overthrow of the force. government by had the and a They physical courage sense of obedience to them withdraw government impelled from these and establish their own organizations to accom- organization purposes which plish they joined such originally This was themselves, sacrifice to organizations. great but their was their loyalty than greater loyalty to an individual organization. York, v.

In Gitlow New supra, it was held that advocacy .the of the overthrow of the presented force a suf- government by of a evil danger ficient substantial its bring suppression within the legislative power, since state had the power to defend itself acts or utterances against its imperil .own state. In existence as constitutional case “advocacy” for, was as “the act of defined pleading recom- supporting active It is this sense that I mending; espousal." under- use of the “advocate" in stand the word here statute under consideration, I think I have made it clear in quite dis- there is “affiliated” that word cussing meaning the furtherance involved a belief to achieve intent unlawful purpose. Division, held cause, Chapters

In “that Appellate are insofar as 21 to inclusive of the Laws of 1949 invalid Governor, and Members relate to Senators The effect those offices.” Assembly General and candidates for 23 unconstitu- Chapter of this declare not to language limitation it did not within the tional because come patently so expressed. these was not of 23 of laws Chapter constitutionality majority and as I understand the before this court

argued 22, 21, 24 and are Chapters while it that opinion, states of unconstitutional, Appellate the it affirms judgment are as Division unconstitutional and holds that these statutes Governor, relate to and Members they Senators offices, and Assembly .they General for those candidates are who fall within unconstitutional as to state officers VII, 1, of of 1947. Article Section Constitution provisions stated,

Por I I have concluded reasons above disagree. 21, 22 valid ex- that and 24 are constitutional and Chapters insofar as and oath allegiance relate the oath cept Assembly. of office members and General for of the Senate I do unconstitutional excepted provisions not consider these each other so connected with and intimately dependent upon these to warrant that the other statutes provisions as them a belief intended enact Legislature only that whole; if not into can I all could be carried nor that say have the residue passed effect then the would not Legislature Galvin, 455, N. J. L. p. Wilentz v. independently. 1904). Ct.

(Sup. Legislature I principal purpose am quite sure to the constitutional these statutes applicable was make of the State Government employees officers and the execu- for who are municipalities responsible counties and include laws, which would also of our tion out carrying branch. the judicial

As to the 1949, of P. L. c. 23, status this statute on its face does not come within the of the majority reasoning opinion nor the conclusion reached Divi- by Appellate sion, since it applies only regulating, licensing employment of school teachers and amends B. 18:13-9.1 and R. 8.18:13-9.2 L. c. (P. which it set forth 155) an oath of for teachers and allegiance schools supervisors supported by public by funds. This statute undisturbed is judgment I court. observe this time that might no perceive constitutional invalidity this statute what- soever and out an oath of for again point teachers, school masters and is not new to supervisors period Laws, our history but Paterson’s required XX, section page section that statute above penal referred to.

I do with the L. agree majority that P. Chapter office, applicable only candidates uncon- stitutional. It oath of requires allegiance prescribed P. L. Chapter shall taken candidates and attached to their petition and certificate of nomination. Chapter 24 does to make require effect candidate open profession his of this nation state, within the of the as I have defined meaning terms them. It simply by furnishes the means or method the voters as may be informed to the belief and understanding by candidate duty which each and allegiance every citizen owes to I see uncon- government. nothing stitutional in a such because it comes within the requirement that a principle our change organization is to be effected procedures ordained Con- by orderly by stitution and Schneiderman v. United by force fraud. States, supra. a fraud Chapter aims on electorate and prevent will have open the effect declarations of alle- requiring see in from candidates. I do not how can giance one breath assert his of freedom of and in an- speech right other refuse to submit to breath the electorate his own openly honest convictions on a as the question important allegiance him due as a citizen to the No by candidate government. should be afraid to test his in lawful opinion jurisdiction on such matters at the box. republic—the people ballot

As to the which declares provision Chapter Section election of candidate who has refused to take void, null and I no allegiance perceive infirmity out, As I have had such a provision. pointed pro- we have vision where an refused to take the oath of years officer furthermore, an and, and oath of office there is review the courts of such adequate any ruling declaring void, null election other sections provided statutes, election R.' 19 :29-l which meet of due process. requirements L.

As to P. this statute Chapter only applied virtue of its to the 1949 and has its force spent elections - limitations and virtue of the fact that right own there- has likewise expired. Any question review the courts moot. under therefore result as to the

I concur in reached by majority and office of the members oath of required that and hold statute Assembly Senate and General I from the con- as to those offices. dissent unconstitutional as they apply statutes are unconstitutional these clusions and Assemblyman, for the officesof Senator the candidates 24 are I am of the opinion Chapters valid all other respects. constitutional con- Mr. Justice Case to state he am authorized by in this opinion. and conclusions expressed curs in the reasoning and Justices Justice Vanderbilt, For affirmance—Chief Burling Wacheneeld, and Acicerson—5. Heher, Olipiiant—2'. reversal—Justices Case and For

Case Details

Case Name: Imbrie v. Marsh

Court Name: Supreme Court of New Jersey

Date Published: Jan 9, 1950

Citation: 71 A.2d 352

Court Abbreviation: N.J.