On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling and Ackerson. For reversal -- Justices Case and Oliphant. The opinion of the court was delivered by Vanderbilt, C.J. Oliphant, J. (dissenting opinion).
The present action was commenced by the nominees of the Progressive Party for Governor and members of the State Legislature in the general election of 1949, and the Progressive Party, for an injunction restraining the defendants, the Secretary of State and the several county clerks, from printing the legend "refused oath of allegiance" under the names of the individual plaintiffs on the ballots to be used in the general election and also to prohibit generally the defendants from enforcing in any manner Chapters 21, 22, 24 and 25 of the Laws of 1949, and for a declaratory judgment that these statutes are in violation of the Constitutions of New Jersey and of the United States and therefor void. On motion of the defendants the Chancery Division of the Superior Court dismissed the complaint, sustaining the four acts in question, but on appeal the Appellate Division reversed the judgment below, holding that so much of the challenged legislation as was applicable to the Governor and the members of the Legislature and candidates for those offices was unconstitutional and void. From that determination the defendants have appealed to this court.
The issues to be decided here are of fundamental importance, first, because they involve the construction of two sections of our new Constitution, and secondly, because they
concern oaths as to which it has been well said "No country can subsist a twelve-month where an oath is not thought binding; for the want of it must necessarily dissolve society," Omychund v. Barker, 1 Atk. 21, 34 (Ch. 1744). The oath has played a significant part in government from the earliest times; thus we find Lycurgus saying to the Athenians: "An oath is the bond that keeps the state together," Oratio in Leocratem 80, and Montesquieu attributing the strength of the Romans to their respect for an oath: "Such was the influence of an oath among these people that nothing bound them stronger to the laws. They often did more for the observance of an oath than they would have done for the thirst of glory or the love of their country,"The Spirit of the Laws, Book VIII, c. 13. Wigmore has traced the long history of the oath from its "summoning of Divine vengeance upon false swearing," to "a method of reminding the witness of the Divine punishment somewhere in store for false swearing," 6 Wigmore on Evidence 285. The importance of the oath in judicial proceedings cannot be overestimated; the judge on the bench, the jury in the box, the attorneys at the counsel table, the witness on the stand, the court stenographer taking a record of the proceedings, and even the bailiffs when they retire to guard the jury in its deliberations, are all sworn to do their respective duties before they are permitted to act. The responsibilities of members of the Legislature and other state officers are certainly of no less importance to the public welfare.
An oath of allegiance was first prescribed in this State on September 19, 1776, within three months after the adoption of our first Constitution, P.L. 1776, c. 2 (Wilson, p. 1), in the following terms:
"I AB do sincerely profess and swear, (or, if one of the People called Quakers, affirm) That I do and will bear true Faith and Allegiance to the Government established in this State under the Authority of the People. So help me God."
This precise language with the omission of the clause in parentheses, which is provided for elsewhere, has been carried
forward through successive revisions and compilations into the Revised Statutes of 1937, 41:1-1.
This statute was amended by P.L. 1949, c. 21, the first of the acts under attack, to read as follows:
"41:1-1. Every person who is or shall be required by law to give assurance of fidelity and attachment to the Government of this State shall take the following oath of allegiance:
'I, , do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of New Jersey, and that I will bear true faith and allegiance to the same and to the Governments established in the United States and in this State, under the authority of the people; and will defend them against all enemies, foreign and domestic; 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. So help me God.'"
An official oath of office was first provided in 1799 (Paterson, p. 377) in the following terms:
"VII. And be it enacted, that where the form of an official oath is not or shall not be specially prescribed, then one shall be taken in the following words, to wit:
I, , do solemnly promise and swear, that I will faithfully, impartially, and justly perform all the duties of the office of according to the best of my abilities and understanding. So help me God."
This oath was likewise re-enacted in successive revisions and compilations. By P.L. 1920, c. 215 (2 Cum. Suppl. 1924, 2564) this simple oath was enlarged by prefixing to it an oath to support the Constitution of the United States and the Constitution of New Jersey. The new oath, moreover, was "in addition to any official oath that may be specially prescribed" and to the oath of allegiance first mentioned herein and applied to "every person hereafter elected or appointed
to any public office in this state or in any county or municipality therein."
This statute which was carried into the Revised Statutes of 1937, 41:1-3, was amended by P.L. 1949, c. 22, the second of the four acts under review, to read as follows:
"41:1-3. In addition to any official oath that may be specially prescribed, the Governor for the time being and every person who shall be elected, appointed or employed to, or in, any public office, position or employment, legislative, executive or judicial, or to any office of the militia, of, or in, this State or of, or in, any department, board, commission, agency or instrumentality of this State, or of, or in, any county, municipality or special district other than a municipality therein, or of, or in, any department, board, commission, agency or instrumentality thereof, and every counsellor and attorney-at-law, shall, before he enters upon the execution of his said office, position, employment or duty take and subscribe the oath of allegiance and office as follows:
'I, , do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of New Jersey, and that I will faithfully discharge the duties of , according to the best of my ability.
I do further solemnly swear (or affirm) that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of this State and to the Governments established in the United States and in this State, under the authority of the people; and will defend them against all enemies, foreign and domestic; 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. So help me God.'"
This "oath of allegiance and office" includes not only an oath of office but everything in the "oath of allegiance" P.L. 1949, c. 21, in haec verba. It was stated at the oral argument that it has not been the practice to administer both the oaths prescribed in P.L. 1949, c. 21 and c. 22, but to consolidate them, thus avoiding the redundancy of language therein. That, however, has not been the practice in this court in
administering oaths to judges, counsellors at law, and attorneys at law. Unless and until these acts are declared unconstitutional, everyone taking an oath is obligated to take it in the form and language prescribed by the Legislature.
P.L. 1949, c. 24, the third of the acts under consideration, requires all candidates for nomination or for election to any public office or party position to subscribe and file the oath of allegiance prescribed in R.S. 41:1-1, as amended by P.L. 1949, c. 21, and provides further that should any candidate fail to file the oath "the nomination or election of such candidate * * * shall be null and void."
P.L. 1949, c. 25, the fourth of the acts under scrutiny, provides that every candidate for public office to be voted on at the general election in 1949 shall subscribe and file the oath of allegiance set forth in R.S. 41:1-1 as amended, and, in the event of his failure to so subscribe and file, that "there will be printed under his name on the military service ballot, the sample ballot, and the official ballots to be used at such general election, the legend "refused oath of allegiance."
All of these statutes of 1949 must be viewed in the light of the pertinent provision of the Constitution of 1947, which prescribes in Article IV, Section VIII, paragraph 1, the oath for members of the Legislature:
"I do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of New Jersey, and that I will faithfully discharge the duties of Senator (or member of the General Assembly) according to the best of my ability."
and in Article VII, Section I, paragraph 1, the oath for all state officers:
"Every State officer, before entering upon the duties of his office, shall take and subscribe an oath or affirmation to support the Constitution of this State and of the United States and to perform the duties of his office faithfully, impartially and justly to the best of his ability."
These two paragraphs of the Constitution bring us to the fundamental question before us: Are these oaths, embodied in the Constitution of 1947, exclusive as to the members of
the Legislature and state officers and therefore beyond the power of the Legislature to add to, subtract from, or in anywise vary?
To ask the question is to answer it, for if the Legislature may alter these oaths or any other provisions of the Constitution prescribing the qualifications for office (such as age, citizenship, residence and prohibition of dual office holding) it would to the extent of such variance nullify the Constitution. The maxim expressio unius est exclusio alterius, is peculiarly applicable here. Such has been the current not only of decisions in this State and elsewhere but of the authorities on public law. "Where the constitution prescribes the manner in which an officer shall be appointed or elected, the constitutional prescription is exclusive and it is not competent for the legislature to provide another mode of obtaining or holding the office." Johnson v. State, 59 N.J.L. 535, 536, 538 (E. & A. 1896). An act that disqualified from voting or holding office persons convicted of crime other than those expressly enumerated in the Constitution was held unconstitutional in State v. Carrigan, 82 N.J.L. 225 (Sup. Ct. 1916); "We think that the legislation is unconstitutional because it undertakes to add to the qualifications of voters as prescribed in the constitution itself." A statute limiting to freeholders the right to vote for road commissioners was declared unconstitutional as contrary to the provisions of the Constitution of 1844 defining the qualifications for voting; "The class of voters at official elections being thus described by the constitution, it is not competent for the legislature either to enlarge or diminish such class. The authorities, it is believed, are unanimous," Allison v. Blake, 57 N.J.L. 6, 11 (Sup. Ct. 1894). This line of constitutional construction is peculiarly appropriate in a government dependent on public elections and where by the Constitution "all political power is inherent in the people," Article I, paragraph 2.
The recognized authorities on public law are in accord:
"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.
"The legislature cannot add to the constitutional qualifications of an officer." 1 Cooley on Constitutional Limitations, 140.
"It is obviously beyond the power of the legislature in prescribing the oath to be administered to impose upon the officer tests or requirements greater than those which the constitution has declared shall be sufficient." Mechem on Public Offices and Officers, 164 (1890).
See also State ex rel. Chenowith v. Acton, 31 Mont. 37, 77 Pac. 299 (Sup. Ct. 1904); People ex rel. Brecken v. Board of Election Commissioners, 221 Ill. 9, 77 N.E. 321 (Sup. Ct. 1906); People ex rel. Hoyne v. McCormick, 261 Ill. 413, 103 N.E. 1053, Ann. Cas. 1915A, 338 (Sup. Ct. 1913); Hoffman v. Downs, 145 Minn. 465, 177 N.W. 669 (Sup. Ct. 1920); Buckingham v. State, 3 Terry (42 Del.) 405, 35 A.2d 903 (Del. Sup. Ct. 1944); Kivett v. Mason, 185 Tenn. 558, 206 S.W. 2d 789 (Sup. Ct. 1947).
In spite of these authorities and the decisions here and elsewhere, the defendants argue that because our Legislature has prescribed by statute an oath of allegiance since the early days of our independence and its right to do so has not been challenged for over 150 years, the Legislature has acquired an inherent right to require an oath of allegiance as a qualification for office in addition to the oaths required by our Constitution. That no one has seen fit to challenge the constitutional power of the Legislature to prescribe a simple oath of allegiance cannot be deemed to be controlling, especially when the oath of allegiance prescribed until last year so closely approached the terms of the oaths set forth in the Constitutions of 1844 and 1947 as to be quite indistinguishable from them and therefore to be entirely unobjectionable.
Indeed, the history of the oath of allegiance and other tests for office holding in England and in the Colony of New Jersey constitute convincing proof of the historical unsoundness of the defendants' contention as well as persuasive support of the exclusive nature of the oaths incorporated in our Constitution.
This history is an involved one but the matter is one of such paramount importance and not without presentday significance that we deem it essential to go into the matter at this point. The most compact summary I have been able to find of the history of the oath of allegiance is from the pen of the most brilliant of English legal historians:
"The history of parliamentary oaths and religious disabilities * * * begins in 1562 with the statute 5 Eliz., c. 1, 13, which required every member of the House of Commons to take the oath of supremacy -- to swear that the queen is only supreme governor of this realm as well in spiritual as in temporal causes, and that no foreign person or potentate has any authority ecclesiastical or spiritual within this realm. In 1609 an oath of allegiance was added (7 Jac. 1, c. 6), to the effect that the king is lawfully king, and that the pope has no power to depose him. In 1678 (30 Car. II, stat. 2, c. 1) to these oaths was added a declaration against transubstantiation, the invocation of saints and the sacrifice of the mass: and the two oaths and this declaration were required of lords as well as commons. The doors of both Houses were thus effectually closed to members of the Roman Church; some of them might be ready to take the two oaths which related to church government, but the declaration as to doctrine was utterly incompatible with their most fundamental beliefs. Immediately after the Revolution the two oaths of allegiance and supremacy were altered in form, the first was to be merely this, 'I will be faithful and bear true allegiance to King William and Queen Mary;' the second was 'I do abhor as impious and heretical the damnable doctrine and position that princes excommunicated by the Pope or any authority of the see of Rome may be deposed or murdered by their subjects or any whatsoever, and I declare that no foreign prince or person hath or ought to have any jurisdiction or authority ecclesiastical or spiritual within this realm.' The declaration against transubstantiation was still maintained. An act of 1701, added a third oath, known as the oath of 'abjuration,' it is long and of a more political character: the swearer abjures all allegiance to the pretended Prince of Wales, and promises to maintain the royal succession as fixed by the Bill of Rights and the Act of Settlement, and this he does upon the true faith of a Christian.
"The persons who were thus excluded were members of the Roman Church, persons who objected to oaths, and persons who were not Christians: Quakers we may say, and Jews. In 1696 (7 and 8 Will. III, c. 27) the oaths of allegiance and supremacy were required of the electors as well as the elected; and the electors had also to take the oath of abjuration. In 1696 Quakers were permitted to make an affirmation instead of taking an oath. On the accession of George I, the oaths were slightly altered. Catholics then could not sit in either House until 1829, and properly speaking they could not vote
in parliamentary elections, but the business of tendering oaths to the voters had made elections so very long, that it was not gone through unless the candidates required it, and statute (1794, 34 Geo. III, c. 73) permitted this omission, so I daresay that Catholics did vote. The Catholic Relief Act of 1829 (10 Geo. IV, c. 7) substituted another oath which Catholics could take -- they had to swear allegiance, and also that the pope had no civil jurisdiction or authority within this realm, and that they would not subvert the church establishment or exercise any privilege to weaken the Protestant religion in this kingdom. The Catholics who would take this oath were thus enabled to sit in either House, and vote at parliamentary elections: Catholics in holy orders were, however, expressly excluded from the Commons' House. In the previous year, 1828, a great measure of relief had been given to all non-conformists, by what is generally called the repeal of the Test and Corporation Acts (the Test Act was not wholly repealed), but this does not concern us, the Protestant dissenter had not been excluded from parliament nor from voting in parliamentary elections, but he had been excluded from many offices by a requirement that he should take the sacrament. This requirement, ever since 1727, had been evaded by the passing of annual bills indemnifying those office-holders who had failed to take the sacrament. In 1828 a declaration was substituted for the sacramental test, a declaration to the effect that the declarant would not use his privileges to the injury of the established church. The necessity of making such declaration was removed in 1868 (31 and 32 Vic., c. 72)." Maitland, The Constitutional History of England, 364-366 (1931).
It is instructive to observe that all of the oaths before 1776 mentioned by Maitland are to be found set forth at length in chapter 105 of Allinson's Acts (1776), which, it will be recalled, was given the force of law by Article XXI of the Constitution of 1776 "until altered by the legislature of this colony (such only excepted as are incompatible with this Charter)." This act was passed in 1722 and the oath of allegiance given therein was as simple and forthright as our own oath of allegiance:
"I AB do sincerely Profess and Swear that I will be faithful and bear true Allegiance to his Majesty King George. So help me God." (Ibid. 63)
The Oath of Supremacy, the Oath of Abjuration and the Declaration against Transubstantiation, the Invocation of Saints and the Sacrifice of the Mass, on the contrary, were
verbose in language and controversial in tone. Elaborate provisions were provided in the act for two or more justices of the peace tendering the several oaths to any person suspected of being dangerous or disaffected, for taking him before the Governor in Council, and binding him over to appear before the next term of the Supreme Court, where if he still refuses to take the oaths he shall "be deemed a popish, recusant convict and as such be proceeded against." Thus does History both in England and in the Colony of New Jersey exhibit the danger, both religious and political, of legislative oaths.
The only oath for office holders which survived the Declaration of Independence was the oath of allegiance which was re-enacted in substance on September 19, 1776, and which remained on the statute books unamended and unchallenged until 1949.
It is urged on us that there was an oath for legislators prescribed by the Constitution of 1776 but that notwithstanding the existence of this oath the Legislature promptly enacted an oath of allegiance. The constitutional oath for legislators is embodied in the final article of the Constitution of 1776 and must be quoted in full because of the light which it sheds on the nature of that Constitution:
"XXIII. That every person, who shall be elected as aforesaid, to be a member of the legislative council, or house of assembly, shall, previous to his taking his seat in council or assembly, take the following oath or affirmation, viz.: 'I, A.B., do solemnly declare, that as a member of the legislative council or assembly (as the case may be) of the colony of New Jersey, I will not assent to any law, vote, or proceeding, which shall appear to me injurious to the public welfare of said colony; nor that shall annul or repeal that part of the third section in the charter of this colony, which establishes that the elections of members of the legislative council and assembly shall be annual; nor that part of the twenty-second section in said charter, respecting the trial by jury; nor that shall annul, repeal, or alter any part or parts of the eighteenth or nineteenth sections of the same (dealing with freedom of religion).' And any person or persons, who shall be elected as aforesaid, is hereby empowered to administer to the said members the said oath or affirmation."
It is important to recall that the Constitution of 1776 was a revolutionary document, adopted two days before the Declaration
of Independence without any ratifying vote of the people, after two days of drafting in committee, two and one-half days of discussion by the committee of the whole, and one day of deliberation in the Provincial Congress, Erdman, The New Jersey Constitution of 1776, pp. 31-33 (1919). As will be seen from Article XXIII above quoted, the Constitution of 1776 was deemed by its framers to be merely a statute, albeit an important statute, of the type of Magna Carta, but nevertheless a statute amendable by any Legislature created under it except insofar as the oath of the members of the Legislature precluded them from amending the four articles of the Constitution enumerated in Article XXIII. With this view of the nature of the Constitution it could not be contended that the oath of allegiance of September 19, 1776, was in anywise unconstitutional.
Equally significant is the course of events in the Constitutional Convention of 1844. The members of the Convention had before them for debate a report containing the following paragraph:
"7. Members of the legislature, and all officers commissioned by authority of this state, shall, before they enter on the duties of their respective offices, take and subscribe the following oath and affirmation: 'I do solemnly swear, or affirm, as the case may be, that I will support the constitution of the United States and the constitution of the State of New Jersey, and that I will faithfully discharge the duties of the office of , according to the best of my ability.' And members elect of the Senate or General Assembly are hereby empowered to administer to each other the said oath or affirmation." Proceedings of the New Jersey Constitutional Convention of 1844, 366.
The discussion on this paragraph is illuminating as to the reasons for amending this paragraph before its insertion in the Constitution of 1844 as Article IV, Section VIII, paragraph 1 (incorporated in the Constitution of 1947, Article IV, Section VIII, paragraph 1). First "Mr. Naar moved to amend so as to require all officers to take, in addition to the oath prescribed in the report for all officers, the oaths now prescribed by law: but a general repugnance being expressed
by the Convention to the multiplication of oaths, the motion was withdrawn." (Ibid. 393) "Mr. Gilchrist moved to amend so as to authorize the Legislature to prescribed other forms of oaths or to dispense with them entirely." "Mr. Hornblower seconded this amendment, as he said it would be in the power of the Legislature, if public sentiment should change on this subject, to act in accordance with it." "Mr. Naar suggested that this was going too far, as it would leave it in the power of the Legislature to fix a test, or a religious oath, and he was sure no one was prepared to submit to that." (Ibid. 394) "Mr. Jaques moved to strike out ' and all officers commissioned by authority of this state.'" "Mr. Jaques' amendment was agreed to. He then moved to strike out words ' of the office of ' and insert 'of senator or member of the general assembly as the case may be,' which was agreed to." (Ibid. 395.)
In the face of this debate, out of which grew the constitutional oath for legislators, the re-enactment in P.L. 1846, c. 25 (p. 866), of the oath of allegiance of September 19, 1776, cannot be deemed a contemporaneous construction of the intent of the Constitutional Convention insofar as any statutory oaths for members of the Legislature are concerned. The constitutional oath prescribed for members of the Legislature was exclusive and beyond the power of legislative interference, though the Legislature was still free to prescribe the oath of allegiance for all other officers commissioned by the State, the Constitutional Convention having struck down any constitutional oath for state officers generally.
There seems to have been nothing said either on the floor of the Constitutional Convention of 1947 or in its Legislative Committee on the subject of the constitutional oath for legislators. Indeed, the only reference to the subject in the records of the Constitutional Convention of 1947 is in a pamphlet entitled "Report of the Legislative Committee, July 31, 1947," where on pages 12 and 14 it is said:
"The Committee proposes that the following provisions of the existing Constitution be retained without substantial change: * * * Paragraph 21. The provisions relating to the form of oaths of members and officers of the legislature."
Nor was there any debate either in the Constitutional Convention or any committee on the subject of the oath for state officers prescribed in Article VII, Section I, paragraph 1, of the new Constitution that supplies the lack of a constitutional oath for state officers generally that existed in the Constitution of 1844. The only record of this matter anywhere in the proceedings of the Constitutional Convention of 1947 is that on July 1st Mrs. Edwin Bebout, speaking as a representative of the League of Women Voters before the Committee on the Executive, Militia and Civil Officers, stated:
"We suggest that every appointive state officer should take an oath to support the Constitutions of the United States and New Jersey as do now the members of the Legislature."
The substance of Article VII, Section I, paragraph 1, is derived, as are a considerable number of the other provisions of the Constitution of 1947, from Article VI, Section I, paragraph 1, of the draft of the Constitution Revision Commission of 1941 (Report, p. 50).
Thus, there is nothing in the history of either the Constitutional Convention of 1844 or of the Constitutional Convention of 1947 that lends countenance to the idea that the Legislature was authorized to impose oaths in addition to those set forth in the Constitution on the classes of public officials covered hereby. In the view that we take of the exclusive nature of an oath prescribed in the Constitution, Chapters 21, 22, 24 and 25 must be declared unconstitutional and void. Having reached this conclusion, it therefore becomes unnecessary for us to consider the other grounds on which these four statutes have been challenged.
This decision in nowise affects the duty of allegiance owed by a legislator or state officers generally to the State. Even though it is beyond the power of the Legislature to prescribe an oath of allegiance for members of the Legislature and other state officers, they are nevertheless bound, along with every other citizen, in their allegiance to the State even in the absence of an oath; "All subjects are equally bounden to their allegiance as if they had taken the oath; because it is written by the finger of the law in their hearts, and the taking
of the corporal oath is but an outward declaration of the same," 2 Coke's Institutes, 121; see also 3 Stubbs, The Constitutional History of England, 555, and 1 Blackstone's Commentaries 369, where it is said: "Natural allegiance is such as is due from all men born within the king's dominions immediately upon their birth." Allegiance, which at first was purely personal owing from the subject to the king as part of the feudal law, 3 Holdsworth's History of English Law 56, 461, has long since become territorial in this country and owing from the citizen to his State, 9 Idem 73, 1 Burgess, Political Science and Constitutional Law 51. Not only does the duty of allegiance continue but it would seem, moreover, to be difficult, if not impossible, to state the distinction between the scope of our traditional oath of allegiance before 1949 and the scope of an oath to support the Constitution.
The judgment below is affirmed.
OLIPHANT, J. (dissenting opinion).
It is important in this discussion to bear in mind the distinction between an oath of allegiance and an oath of office. An oath of office needs no definition; it is self-defining. I deem it necessary, however, to state my understanding of what an oath of allegiance is under our ...