Vol. 2, p. 1686, Proceedings in the Court of Impeachment, People v. Sulzer, 1913.)

The case of Senator James Wood, cited by counsel for the Socialist Assemblymen (Brief for S. A., pp. 108-109), is therefore against the weight of authority and the Assembly, despite the assertion to the contrary in that brief (id. p. 97), is not limited to conduct during the term of office in considering the question of expulsion.

(4) There is no constitutional limitation in this state of the power of expulsion as there is under the Federal Constitution requiring a two-thirds vote of the Members of either House to expel a member. Exclusion or expulsion can be accomplished by the Assembly by a majority vote and it makes little difference whether the judgment is exclusion or expulsion, since the offense of which these men stand convicted before this Committee is a continuing one of which they were guilty at the time they presented themselves for membership in the Assembly.

Whether the members of the Committee reach the conclusion that the testimony justifies exclusion or are convinced that while it does not justify exclusion, it justifies the expulsion of these five men is of no great consequence, for the authority vested in this Committee to conduct an "investigation of the qualifications and eligibility of the said persons to their respective seats in this Assembly," and to report to the Assembly "its determinations as to the qualifications and eligibility" of these men and each of them respectively to a seat in the Assembly, is broad enough, if the finding shall be that they are guilty of disloyalty and that such disloyalty existed before and continued up to the time of their appearance in this House, to

warrant a recommendation either of exclusion or expulsion.

66

(5) The provision in the Constitution of this State that no other oath, declaration or test shall be required as a qualification for any office of public trust than the oath to support the Constitution of the United States and the Constitution of the State of New York (Art. XIII, Sec. 1), does not eliminate loyalty as a qualification for membership in the Assembly and dis loyalty as a disqualification for such membership; neither does it deprive the Assembly of its inherent power to exclude disloyal persons form membership in this body.

It is insisted that the language of Article XIII, Section 1, of the Constitution of this State declaring that

no other oath, declaration or test shall be required as a qualification for any office of public trust" than the oath to support the Constitution of the United States and the Constitution of the State of New York, eliminates loyalty as a qualification for membership in the Assembly and disloyalty as a disqualification for such membership and renders the Assembly of this State legally powerless to exclude or expel a disloyal person from membership in this body. In fact, the contention is pressed even further, and it is insisted that anyone, no matter how incompetent or utterly unfit in any respect, must be admitted to this body if he accomplishes the formality of taking, truly or falsely, comprehendingly or even insanely, the constitutional oath of office.

A mere statement of this proposition is its refutation. The astonishing contention which results in such an absurd conclusion is due to confusing qualification with test.

No test, i. e., no attestation of the possession of qualification, is required or permitted by our Constitution other than the taking of an oath of loyalty, and every other test, i. e., the attestation of the possession of any other qualification than that of loyalty, is prohibited. The qualification of loyalty, of course, is, as we shall hereinafter see (infra, p. 73), attested by the taking of the oath to support the Constitution of the United States and the Constitution of the State of New York; but by requiring that such an oath and no other shall be exacted, the Constitution does not dispense with the qualification of loyalty itself. Otherwise, the profession of the possession of the qualification would take the place of the qualification and the mere taking of the oath would be a substitute for loyalty and a shield for disloyalty.

No such result was ever intended to be accomplished by this constitutional provision, whose purpose it is to prohibit the requiring or imposing of a religious, political or other qualification, and the possession thereof to be attested by an oath, declaration or test, in addition to the constitutional oath. (People ex rel. Rogers v. Common Council of Buffalo, 123 N. Y. 173; Rathbone v. Wirth, 150 N. Y. 459, at p. 484 of Opinion per O'Brien, J.) In short, the nature of the constitutional oath is itself expressive and declarative of the only qualification for membership in this body with which the Constitution is concerned, to wit, the qualification of loyalty to the United States and the State of New York. Therefore, it is prescribed that no other test than such oath may be required, for such test would necessarily refer to and require other qualifications in addition to loyalty.

In this respect there is no difference between the Federal and State Constitutions. Each requires a test

of loyalty to the Nation by the oath to support the National Constitution. The State Constitution requires the additional test of loyalty to the State by the oath to support the State Constitution. Limitations on the power to require other tests may differ in each Constitution, but the requirement of the essential quality of loyalty is the same in both.

(6) The oath to support the Constitution of Nation and State can not be effectually taken by disloyal men.

An oath, according to Bouvier, is "An outward pledge given by the person taking it that his attestation or promise is made under an immediate sense of his responsibility to God." It has always derived its force from the presumption that the person taking it would be less liable to make a false statement if, when he made the statement, his attention was forcibly called to the beliefs of his religion in regard to the punishment of falsehood and of the existence of a Being capable of inflicting such punishment. It will be seen, therefore, that the very essence of an oath is not the outward formality but the inner state of mind of the person taking it and this fact is shown beyond dispute by the cases which prescribe the form of oaths to be administered to persons of various religious beliefs and at the present day oaths are administered in the ways most binding upon the conscience of the person taking them. Thus it has been held in the past that while a Hindoo who was a believer in a Supreme Being could take an oath, a person of any country who disclaimed such a belief was incapable.

The most famous case on this point is that of Attorney-General v. Bradlaugh, 14 Q. B. D. 667, which was an action for a statutory penalty against a Member of

Parliament for sitting and voting in Parliament without having taken the oath prescribed by statute. Bradlaugh, the defendant, was duly elected by Parliament, and had gone through the form of taking an oath before the Speaker's desk, but it was proved by his own declaration that at the time of taking the oath he had no belief in a Supreme Being and it was held that he had not taken the oath and was, therefore, liable for the statutory penalty. Lindley, L. J., in his opinion, expressed his conclusions as follows:

"The conclusion, therefore, to which I have arrived is this, that if the defendant's arguments were to prevail, and if every member who uttered the words in the form of the oath required to be taken, were to be held to be capable of taking them as an oath, the oath would be reduced to a meaningless form. For some reason an oath, or, to meet the scruples of some persons, a solemn declaration, is required to be made; and whatever the object may have been, the effect is, as I understand it, to exclude from sitting and voting in Parliament all those persons who, like the defendant, cannot lawfully make a declaration and who cannot take the oath, and to render them liable to penalties if they do sit and vote.”

It is not denied that at the present day no such religious test would be lawful, but we do insist that if an oath is to retain any meaning it must constitute more than a meaningless form, and just as a contract which is entered into in jest and without the intention of constituting a valid obligation is not binding upon the parties, so a ceremony of which it could be proved that it was not accompanied with any intent and