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Article 1, Section 6, Clause 2

Document 9

William Wirt, Contracts with Members of Congress

18 July 18262 Ops. Atty. Gen. 39

Sir: The question which you submit for my opinion is, whether your employment of members of Congress, as assistant counsel to the district attorneys of the United States, be within the prohibitions of the act of April 21, 1808, "concerning public contracts?"

I am entirely satisfied that this sort of engagements was not within the view of Congress when the act was passed; but that the species of contracts which led to its passage were of a different character, as stated in the report of a select committee of the 29th March, 1822, upon the subject of the employment of a Senator of the United States in the examination of certain land offices in Ohio, &c. The practice, too, in several instances stated in that report, seems to have limited the construction of the act to the specific species of contracts which were known to have led to its enactment. But yet, the language of the law is so broad and so explicit, not only in its positive enactments, but in its exceptions; and its policy, too, is so broad and general, that I cannot discover any satisfactory distinction by which the contracts in question can be withdrawn from its operation.

The first section forbids all contracts between officers of the government and members of Congress. It is true that the language of this section seems, for the most part, to be applicable only to the kind of contracts which produced the law; and had the question rested on this section only, there would have been good ground for confining the operation of the act to those kinds of contracts to which it owes its origin. But the second reflects a larger construction on the first, by excepting from its action a species of contract as far removed from the natural sense of the first section, as the kind of engagements now in question--to wit, the purchase of bills of exchange from members of Congress. The exception proves that Congress intended, by the first section, to use language broad enough to cover the excepted cases; and that hence it was necessary to introduce the positive exception. Now if, as is thus implied by the legislature itself, the first section is broad enough to comprehend the sale of bills of exchange, I see not why it is not broad enough to comprehend the sale of professional services, or any other species of work and labor, in any other art, mystery, or science, as well as that of the law. And again: if the prohibitions do not extend to engagements for professional services with gentlemen of the law, do they extend to engagements with gentlemen of the medical faculty? If not, a member of Congress might be stationed as a surgeon at a military post, on an annual stipend, without any violation of the law.

But let us pursue the inquiry one step further. The second section of the act having expressly excepted from the operation of the law two cases only--to wit, contracts with corporations, and the purchase of bills of exchange--the fourth section uses the following pointed and comprehensive terms: "That if any officer of the United States, in behalf of the United States, shall, directly or indirectly, make or enter into any contract, bargain, or agreement, in writing or otherwise, other than such as are herein excepted, with any member of Congress, such officer so offending," &c., &c. Now, I think it cannot be denied that an engagement with a gentleman of the bar, whereby, for a valuable consideration, he is to render his professional services in a given case, is a contract, a bargain, an agreement, in the legal sense of these terms, (and in none other are they to be regarded;) and it is a bargain, contract, or agreement, other than the two which had been previously excepted by the act. It is, therefore, a contract forbidden expressly by the fourth section of the act.

Should it be objected that this is sticking in the letter of the law to the disregard of its policy, I cannot accede to the objection.

The policy of the law is to prevent the exercise of executive influence over the members of Congress by the means of contracts; and whether the contract be for the service of a lawyer, a physician, or a mail carrier, an army purveyor, or a turnpike-road maker, it seems to me to be equally within the policy and mischief of the law. The only difference is in the permanency of the engagement; but a succession of single engagements is quite as mischievous as a contract in solido; and if the distinction is to be allowed, the law might easily be evaded.

Finally, even if the construction of the law were dubious, yet, as executive officers, it would become us to remember that it is a remedial law, enacted as a bar to executive influence; that, in the construction of all such laws, the rule is to give them a large construction for the advancement of the remedy and the suppression of the mischief; and that it is much safer to err on the side of forbearance, than on that of possible encroachment.

The Founders' Constitution
Volume 2, Article 1, Section 6, Clause 2, Document 9
The University of Chicago Press

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