Argument in Opposition to Henry A. Du Pont's Claim to the Office of United States Senator for the State of Delaware - Softcover

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1896. Excerpt: ... IV.--Incompatibility Of Offices At Common Law. There is no swell rule known to the common law as the rule "that no person shall exercise two incompatible offices at the same time.' Why counsel for the claimant have felt obliged to maintain the existence of such a rule, it is not difficult to conjecture. As will hereafter appear, the provision of the constitution of Delaware that the speaker of the senate shall, in a certain contingency, exercise the office of governor, had, until the 9th. of May, 1895, always been held to mean that the person so exercising the office of governor did not vacate his senatorial office. In view of this fact, counsel for the claimant are forced to take the ground that the common law does not forbid a person to hold two incompatible offices, but only forbids him to "exercise" them "at the same time." But the rule of the common law is otherwise. In order to show that the rule of the common law is that no person shall hold two incompatible offices, it is only necessary to refer to three cases cited in the brief for Mr. Du Pont. In Milward vs. Thatcher, 2 Term R., 82, Mr. Justice Buller said: Now, if the offices be incompatible, bis being a jurat before is no objection to bis election; and if they be incompatible, the election to the latter office is good, because the acceptance of the second vacates the first office The case of The King vs. Sir W. Trelawney, so far as the question was entered into, is an authority. There the court did not distinguish between a superior and inferior office; but Lord Mansfield expressly said that if the two offices were incompatible, the acceptance of the latter would imply a surrender of the former. In the case of King vs. Pateman, 2 Dnrnf. & East, 777, Lord Kenyon said: If an alderman be also a m...