Jacobs, Donges and Bigelow. The opinion of the court was delivered by Bigelow, J.A.D.
[5 NJSuper Page 241] This appeal brings into question Chapters 21 to 25 of the Laws of 1949. These statutes add to the oath of allegiance found in R.S. 41:1-1 and to the oath pledging support to the constitution, R.S. 41:1-3, the following terms:
"That I do not believe in, advocate or advise the use of force, or violence, or other unlawful or unconstitutional means, to overthrow or make any change in the Government established in the United States or in this State; and that I am not a member of or affiliated with any organization, association, party, group or combination of persons, which approves, advocates, advises or practices the use of force, or violence, or other unlawful or unconstitutional means, to overthrow or make any change in either of the Governments so established; and that I am not bound by any allegiance to any foreign prince, potentate, state or sovereignty whatever."
Sundry classes of persons are required so to swear, and among others, candidates for nomination or for election to the Legislature or to the office of Governor must do so. Persons elected to those offices likewise must take the oath before entering upon the execution of their duties. The appellants, who are candidates for the assembly or for the governorship urge that the Legislature has exceeded its constitutional power in these enactments so far as they relate to the offices to which appellants aspire.
The appellants first rely upon the rule or principle that where the constitution fixes the qualifications for public office, the Legislature may not change them or add new qualifications. A century ago, Justice Story wrote:
"It would seem but fair reasoning upon the plainest principles of interpretation, that when the Constitution established certain qualifications as necessary for office, it meant to exclude all others as prerequisites. From the very nature of such a provision the affirmation of these qualifications would seem to imply a negative of all others * * *. A power to add new qualifications is certainly equivalent to the power to vary them." 1 Story, Commentaries on the Constitution , § 625.
An excellent exposition of this rule of constitutional law may be found in Peo. v. McCormick (Ill.), 103 N.E. 1053 (1913), a case in which a statute requiring, as a qualification for office, five years' residence where the constitution called for only one was overthrown. Upon the same principle, our own Supreme Court struck down a statute disqualifying for public office one convicted of an offense against the election laws. State v. Carrigan , 82 N.J.L. 225 (1912). See, also,
Allison v. Blake , 57 N.J.L. 6 (Sup. Ct. 1894). The respondents do not question the general principle on which the appellants rely. They concede, for instance, that the Legislature could not validly enact that a person must be 35 years old to qualify as Governor, instead of 30 years, the age stated in the constitution. But they contend that the statutes under review do not add to the qualifications for office, and in support of their argument, they point to the fact that throughout our history, the Legislature has required certain oaths in addition to the oaths prescribed by our constitution.
In Colonial times, public officers were required to take the oath of allegiance to the British Crown, and the oaths devised by Parliament as a safeguard against the Stuart pretenders and for excluding Roman Catholicism. See Cornbury's Commission and Instructions, Leaming and Spicer, p. 648, etc.; also Allinson's Statutes, p. 62. Promptly after the Continental Congress declared our independence, the New Jersey Legislature repealed the Colonial statutes on the subject and instead prescribed a simple oath "that I do and will bear true faith and allegiance to the government established in this State under the authority of the people." Wilson's Laws, p. 1, and Paterson, p. 376. The oath in the form adopted in 1776 has remained unchanged and so appeared in R.S. 41:1-1 until the Legislature adopted the statutes which are now under attack. Not only the form of oath but the requirement that the Governor, as well as members of the Legislature, take the oath, has been retained since the time of the Revolution. Paterson, p. 376. R.S. 41:1-2.
The origin of the oath of allegiance must be sought in remote feudal times. For long centuries, it was a pledge of fealty to the king, but now in our country it is often an expression of devotion to the government. Such an oath is no more than a brief express engagement of that which every citizen impliedly owes to his country. "By allegiance is meant the obligation of fidelity and obedience which the individual owes to the government under which he lives or to his sovereign in return for the protection he receives." Carlisle v. U.S. , 16 Wall. 147, 21 L. Ed. 426. The oath of
allegiance "does not increase the civil obligation to loyalty; it only strengthens the social tie by uniting it with that of religion." 1 Blacks. Com. 369. The statutory exaction of the oath of allegiance does not exclude from office any whom the constitution of New Jersey accepts; for all ...