<DOC>
[Hinds Precedents -- Volume I]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:hinds_xiii.wais]
Chapter XIII.
THE QUALIFICATIONS OF THE MEMBER.
-------------------------------------------------------------------
1. Provision of the Constitution. Section 413.\1\
2. State may not prescribe. Sections 415-417.\2\
3. Age. Section 418.
4. Citizenship in the United States. Sections 419-427.
5. Principles deduced from Senate decisions as to citizenship.
Sections 428-430.
6. Citizenship of Delegates. Section 431.
7. Inhabitancy. Sections 432-436.\3\
8. Principles deduced from Senate decisions as to inhabitancy.
Sections 437-440.
-------------------------------------------------------------------
413. The Constitution provides that a Member shall fulfill certain
conditions as to age, citizenship, and inhabitancy.--Section 2 of
Article I of the Constitution provides:
No person shall be a Representative who shall not have attained to
the age of twenty-five years, and been seven years a citizen of the
United States, and who shall not, when elected, be an inhabitant of
that State in which he shall be chosen.
414. The election case of William McCreery, of Maryland, in the Tenth
Congress.
A question arising in 1807 as to the right of a State to prescribe
qualifications for Representatives, the House, while inclining
manifestly to the view that the States did not have the right, avoided
an explicit declaration.
Discussion of the three constitutional qualifications as exclusive of
others.
On October 30, 1807,\4\ Joshua Barney presented a memorial contesting
the election of William McCreery, of Maryland. On November 9 the
Committee of Elections made a report showing the following facts:
The law of Maryland (act of 1790) required the Member to be an
inhabitant of his district at the time of his election, and to have
resided therein twelve calendar months immediately before.
-----------------------------------------------------------------------
\1\ Many decisions that disqualification of the majority candidate
does not give title to the minority candidate. (See secs. 323, 326,
424, 435, 450, 459, 460, 467, 469, 473, 621, 807.) Also an elaborate
Senate discussion. (Sec. 463 of this volume.)
\2\ Senate case of Lucas v. Faulkner. (Sec. 632 of this volume.)
\3\ See also cases of Upton (sec. 366 of this volume) and Pigott
(sec. 369 of this volume).
\4\ First session Tenth Congress, Contested Elections in Congress,
1789 to 1834, p. 167. Reports, No. 1; Annals, p. 870; Journal, p. 44.
Mr. McCreery had already taken the oath without question; Journal, p.
6.
Sec. 414
The law of Maryland (act of 1802) provided that Baltimore town and
county should be a district entitled to send two Representatives in
Congress, one to be a resident of Baltimore City and the other a
resident of Baltimore County.
At the election the poll resulted, 6,164 votes for Nicholas P. Moore,
indisputably a resident of Baltimore County; 3,559 votes for William
McCreery, whose claim to the required residence in Baltimore City is
questioned; 2,063 votes for Joshua Barney, indisputably a resident in
Baltimore City, and who contests the seat of Mr. McCreery; 353 votes
for John Seat, a resident of Baltimore City.
The committee reported the conclusion that the law of Maryland
prescribing the qualifications of Members was unconstitutional, and
therefore reported a resolution that William McCreery, who
unquestionably had a majority of votes for the Baltimore City seat, was
entitled to the seat. The committee did not attempt to ascertain
whether or not Mr. McCreery had the residence requirements of the law
of Maryland.
This report was the subject of exhaustive debate in the House,
lasting from November 12 to 19.\1\
It was urged, in behalf of the report, that the qualifications of the
National Legislature were of a national character and should be uniform
throughout the nation and be prescribed exclusively by the national
authority. The people had delegated no authority either to the States
or to Congress to add to or diminish the qualifications prescribed by
the Constitution. In denying the right of the States to add
qualifications, the Congress was only protecting the rights of their
citizens against encroachments on their liberties by their own State
legislatures, which were corporate bodies not acting by natural right,
but restrained by both Federal and State constitutions. The reserved
power of the States could operate only when, from the nature of the
case, there could be no conflict with national power. Congress had the
power under the Constitution to collect taxes. From the nature of the
case the same power was reserved to the States. Congress had power to
``establish post-offices and post-roads.'' From the nature of the case
the States would not reserve this power. In the same way the States
could not reserve a power to add to the qualifications of
Representatives. If they could do this, any sort of dangerous
qualification might be established--of property, color, creed, or
political professions. The Constitution prescribed the qualifications
of President, as it did of Representatives. Did anyone suppose that a
State could add to the qualifications of the President? In the case of
Spaulding v. Mead, the House had decided that a State law could not
render void returns made after a certain time. Qualifications for
Representatives should be firm, steady, and unalterable. The National
Legislature must have the power to preserve from encroachment the
national sovereignty. A part of the Union could not have power to fix
the qualifications for the Members of the Assembly of the Union. It is
presumed that written documents say all they mean. Had the makers of
the Constitution meant that there might be other qualifications, they
would have said so. The people had a natural right to make choice of
their Representatives, and that right should be limited only by a
convention of the people, not by a legislature. The
-----------------------------------------------------------------------
\1\ Annals, pp. 870-950.
Sec. 414
powers of the House were derived from the people, not from the States.
The power to prescribe qualifications had been given neither to
Congress nor the States. The States might establish districts, but they
might not prescribe that Representatives should be confined to the
districts. The Constitution had carefully prescribed in what ways the
States might interfere in the elections of Congressmen. They might
prescribe the ``times, places, and manner'' of holding elections,
reserving to Congress the right to ``make or alter'' such regulations.
This was all the Constitution gave to the States. It had been urged
that the language of the clause prescribing the qualifications was
negative, but so also was the language of the clause prescribing the
qualifications of the President. The qualifications of Representatives
did not come within the range of powers granted, but rather were the
means of exercising those powers. The powers reserved to the States
were reserved to them as sovereignties, but the qualifications of the
Members of the House of Representatives of the nation never belonged to
those sovereignties, but flowed from the people of the United States.
It was urged against the report that the positive qualifications
assumed by the Constitution did not contain a negative prohibition of
the right of the States to impose other qualifications. The State by
annexing the provision for a residence in a district did not interfere
with the constitutional requirement of residence in the State. Whatever
rights were not expressly delegated to the United States were reserved
to the States themselves or to the people. A right could not be
delegated absolutely which could be exercised conjointly. For the House
to declare a long-existing State law unconstitutional would be a
dangerous act. In prescribing the qualifications of the voters the
Constitution was positive, but in prescribing the qualifications of the
Representatives in Congress the language was significantly negative.
The Constitution did not fix the qualifications; it simply enumerated
some disqualifications within which the States were left to act. The
power contended for by Maryland must be included in the common and
usual powers of legislation, and not being delegated to the General
Government must reside in the States. Because the House was constituted
the judge of the qualifications of its Members, it did not follow that
it could constitute or enact qualifications. The functions were
distinct. No harm could come from the exercise by the States of the
power to prescribe qualifications, since the power would be used with
discretion.
In the course of the debate a resolution that ``William McCreery is
duly elected according to the laws of Maryland and is entitled to his
seat in this House'' was negatived by a large vote.
Then a resolution was offered declaring that neither Congress nor the
State legislatures could add to or take away from the qualifications
prescribed by the Constitution, that the law of Maryland was void, and
that William McCreery was entitled to his seat. This resolution did not
come to a vote, as the committee rose after it was offered, and on the
next day, November 19, the House discharged the Committee of the Whole
from the subject and recommitted it to the Committee on Elections.\1\
On December 7 \2\ the committee reported, presenting evidence at
length on the
-----------------------------------------------------------------------
\1\ Journal, p. 36.
\2\ Annals, p. 1059.
Sec. 415
subject of Mr. McCreery's residence, but expressing no opinion on that
subject, and recommending the adoption of the following resolution:
Resolved, That William McCreery, having the greatest number of votes,
and being duly qualified agreeably to the Constitution of the United
States, is entitled to his seat in this House.
On December 23 this resolution was debated in Committee of the Whole,
where a disinclination to come to a decision on the rights of the
States was manifest. This finally took form in the adoption of the
following amendment, offered by Mr. Robert Marion, of South Carolina:
Strike out all the portion relating to votes and qualifications, so
that the resolution reads as follows:
Resolved, That William McCreery is entitled to his seat in this
House.
The Committee of the Whole agreed to this amendment, which, being
reported to the House, was agreed to by a vote of yeas 70, nays 37.
Both Mr. William Findley, of Pennsylvania, who had supported the
original report, and Mr. John Randolph, of Virginia, who had made the
main argument in opposition, voted against the amendment.\1\
The amendment of the Committee of the Whole having been agreed to,
Mr. John Randolph, of Virginia, moved a further amendment by inserting
after the word McCreery the following:
By having the qualifications prescribed by the laws of Maryland.
Mr. Randolph explained that he wished to bring the constitutionality
of the law of Maryland before the House. On December 24 the question
was taken on Mr. Randolph's amendment, and it was decided in the
negative--yeas 8, nays 92.
The question then being taken on the adoption of the resolution:
Resolved, That William McCreery is entitled to his seat in this
House.
And it was agreed to--yeas 89, nays 18.
Mr. Randolph was one of those voting nay.\2\
415. The Illinois cases of Turney v. Marshall and Fouke v. Trumbull
in the Thirty-fourth Congress.
In 1856 the House decided that a State might not add to the
qualifications prescribed by the Constitution for a Member.
The governor of a State having declined to issue credentials to rival
claimants, the House seated the one shown prima facie by official
statement to have a majority of votes. (Footnote.)
An instance wherein a contest was maintained against a Member-elect
who had not and did not take the seat.
Discussion of the three constitutional qualifications as exclusive of
others.
In 1856 the House considered and decided a question as to the
qualifications of a Member who had already been seated on his prima
facie showing.
-----------------------------------------------------------------------
\1\ Journal, p. 91; Annals, p. 1231.
\2\ Journal, pp. 93-95; Annals, p. 1238.
Sec. 415
On June 24, 1856,\1\ Mr. John A. Bingham, of Ohio, from the Committee
on Elections, reported in the two Illinois contested election cases of
Turney v. Marshall and Fouke v. Trumbull. Each of these cases arose out
of the following clause in the constitution of Illinois:
The judges of the supreme and circuit courts shall not be eligible to
any other office or public trust of profit in this State, or the United
States, during the term for which they are elected, nor for one year
thereafter. All votes for either of them, for any elective office
(except that of judge of the supreme or circuit court), given by the
general assembly or the people, shall be void.
Both Messrs. Marshall and Trumbull were indisputably under this
disqualification, and the contestants claimed the seats on the ground
that the votes cast for them ``were null and void.''
Thus was presented the question whether a State might superadd to the
qualifications prescribed by the Constitution of the United States for
a Representative in Congress.
After quoting Chancellor Kent's saying ``the objections to the
existence of any such power appear to me too palpable and weighty to
admit of any discussion,'' the report proceeds:
And Mr. Justice Story, upon the same question, says that ``the States
can exercise no powers whatsoever, which exclusively spring out of the
existence of the National Government, which the Constitution does not
delegate to them. They have just as much right, and no more, to
prescribe new qualifications for a Representative as they have for a
President. Each is an officer of the Union, deriving his powers and
qualifications from the Constitution, and neither created by, dependent
upon, nor controllable by the States. It is no original prerogative of
State power to appoint a Representative, or Senator, or President for
the Union. (Story's Commentaries, vol. ii, page 101.)
The second section of the first article of the Constitution of the
United States provides that the people of the several States shall
choose their Representatives in Congress every second year, and
prescribes the qualifications both of the electors and the
Representatives.
The qualification of electors is as follows:
``The electors in each State'' (who shall choose Representatives in
Congress) ``shall have the qualifications requisite for electors of the
most numerous branch of the State legislature.''
The qualifications of a Representative, under the Constitution, are
that he shall have attained the age of 25 years, shall have been seven
years a citizen of the United States, and, when elected, an inhabitant
of the State in which he shall be chosen. It is a fair presumption
that, when the Constitution prescribes these qualifications as
necessary to a Representative in Congress, it was meant to exclude all
others. And to your committee it is equally clear that a State of the
Union has not the power to superadd qualifications to those prescribed
by the Constitution for Representatives, to take away from ``the people
of the several States'' the right given them by the Constitution to
choose, ``every second year,'' as their Representative in Congress, any
person who has the required age, citizenship, and residence. To admit
such a power in any State is to admit the power of the States, by a
legislative enactment, or a constitutional provision, to prevent
altogether the choice of a Representative by the people. The assertion
of such a power by a State is inconsistent with the supremacy of the
Constitution of the United States, and makes void the provision that
that Constitution ``shall be the supreme law of the land,'' anything in
the constitution or laws of any State to the contrary notwithstanding.
Your committee submit that the position assumed by those who claim
for the States this power, that its exercise in nowise conflicts with
the Constitution, or the right of the people under it to choose any
person having the qualifications therein prescribed, has no foundation
in fact.
-----------------------------------------------------------------------
\1\ First session Thirty-fourth Congress, 1 Bartlett, p. 166;
Rowell's Digest, p. 141; House Report No. 194.
Sec. 415
By the Constitution the people have a right to choose as
Representative any person having only the qualifications therein
mentioned, without superadding thereto any additional qualifications
whatever. A power to add new qualifications is certainly equivalent to
a power to vary or change them. An additional qualification imposed by
State authority would necessarily disqualify any person who had only
the qualifications prescribed by the Federal Constitution.
Your committee can not assent to the averment of the memorialist, Mr.
Fouke, that ``the question presented is not one of qualification of a
Member of Congress arising under the Constitution of the United States,
but a question of election arising under the constitution and laws of
the State of Illinois.''
It is not intimated either by the memorialist, or any one else, that
the persons who voted at said election in said several districts were
not qualified electors and legally entitled to vote, nor is it
intimated that said election was not conducted in all respects as
required by law. In short, the only point made by the memorialist is
that Mr. Marshall, who received a large majority of all the votes cast
in said Ninth district, and Mr. Trumbull, who received a large majority
of all the votes cast in the said Eighth district, were each of them
ineligible to a seat in Congress, not because either of them lacked any
qualification prescribed by the Constitution of the United States, but
because each of them was disqualified by operation of the provisions of
the constitution of the State of Illinois. If the respective terms for
which those two gentlemen had been elected judges of the said State had
expired more than one year before the 7th of November, 1854, we would
have had no intimation that the votes cast for each of them were in
contemplation of law no votes; their election would, under these
circumstances, have been conceded, because they would have been
acknowledged as not disqualified to hold the office under and by virtue
of the constitution of the State of Illinois. If the State of Illinois
may thus disqualify any class of persons possessing all the
qualifications required by the Federal Constitution for a
Representative in Congress for a period of ten years, and another class
for a period of five years, what is there to restrain that State from
imposing like disabilities upon all citizens of the United States
residing within her territory, and thus take away from the people the
right to choose Representatives in Congress every second year,
declaring, in effect, that only every fifth or tenth year shall the
people choose their Representatives? It is no answer to say that these
disabilities are self-imposed by the majority of the people of the
State. The majority of the people within the several States have not
the power to impair the rights of the minority guaranteed by the
Constitution of the United States and exercised under its authority'
By the plain letter of the Constitution Congress may prescribe the
time, place, and manner of holding elections for Representatives, and
at such time and place, and in the manner thus prescribed--every second
year--the people of each State may choose as Representative in Congress
any person having the qualifications enumerated in that Constitution.
The power attempted to be asserted by the State of Illinois in the
cases before us is in direct contravention of the letter, as also of
the spirit, true intent, and meaning of these provisions of the Federal
Constitution, and absolutely subversive of the rights of the people
under that Constitution. Your committee, therefore, conclude that the
said tenth section of the fifth article of the constitution of the
State of Illinois is inoperative in the premises; that the said
Trumbull and Marshall were each eligible to the office of
Representative in Congress at the time of said election, it being
conceded that on that day they possessed all the qualifications for
that office required under the Constitution of the United States; and
that the votes given to each of them were not void, as alleged, because
they were given by electors having the qualifications prescribed by the
Constitution of the United States, and at the time and place and in the
manner prescribed by law.
On April 7 and April 10 \1\ the report was debated in the House. Mr.
Trumbull had never taken his seat in the House, having been elected to
the Senate. So in the contest in his case, the committee tested the
question before the House with the following resolution:
Resolved, That the Hon. P. B. Fouke, who has presented to this House
his memorial claiming to represent the Eighth district of Illinois in
the Thirty-fourth Congress, was not duly elected as claimed by him, and
is not entitled to a seat in this House, and that said seat is vacant.
This resolution was agreed to--yeas 135, nays 5.
-----------------------------------------------------------------------
\1\ Journal, pp. 805-808; Globe, pp. 829, 864.
Sec. 416
Then a resolution declaring that Mr. Turney was not elected and that
Samuel S. Marshall,\1\ the sitting Member, was entitled to the seat,
was agreed to without division.
416. In 1856 the Senate decided that a State might not add to the
qualifications prescribed by the Constitution for a Senator.
In the Senate in 1856 a Senator-elect was sworn on his prima facie
right, although his qualifications were questioned.
In 1856 the Senate considered and decided a question as to the
qualifications of a Member who had already been seated on his prima
facie showing.
On February 27, 1856,\2\ the Senate Judiciary Committee reported on
the right of Mr. Lyman Trumbull, of Illinois, to a seat in the Senate.
A provision of the constitution of Illinois provided that certain
judges of that State should not be eligible to any other office of the
State or United States during the term for which they were elected nor
for one year thereafter. Mr. Trumbull had been a judge and came within
the prohibitions of the constitution. Hence a question arose as to the
effect of qualifications imposed by a State in addition to the
qualifications imposed by the Constitution.
On December 3, 1855,\3\ when Mr. Trumbull appeared to take the oath,
a protest reciting the facts was filed, but no objection was offered to
his taking the oath, which he accordingly did.
On February 20 and 27,\4\ and March 3 and 5,\5\ 1856, the question
was debated at length, and on the latter day, by a vote of yeas 35,
nays 8, Mr. Trumbull was declared entitled to the seat.
417. The Kansas election case of Wood v. Peters in the Forty-eighth
Congress.
In 1884 the House reaffirmed its position that a State may not add to
the qualifications prescribed by the Constitution for a Member.
Discussion as to whether or not a Member is an officer of the
Government.
On March 18, 1884,\6\ Mr. Mortimer F. Elliott, of Pennsylvania, from
the Committee on Elections, presented the report of the majority of the
committee in the Kansas case of Wood v. Peters.
The sitting Member had received, on the general ticket, 99,866 votes,
and contestant 83,364. The contestant claimed the seat on the sole
ground that Mr. Peters was ineligible at the time he was voted for.
-----------------------------------------------------------------------
\1\ The Journal and Globe show that Mr. Marshall's name was on the
roll when the House first met, and that on February 4, after the
Speaker was finally chosen, he was sworn in without objection.
(Journal, pp. 7, 448; Globe, pp. 2, 353.) But from the debate (Mr.
Orr's speech, Globe, p. 831) it appears that the governor of Illinois
had declined to issue credentials to any of the four, but sent them all
with a statement of facts. Mr. Marshall was seated on his prima facie
showing of a majority of votes. For a copy of governor's statement,
which was really a duly authenticated certificate, see Globe, page 865.
\2\ First session Thirty-fourth Congress, 1 Bartlett, p. 618.
\3\ Globe, p. 1.
\4\ Globe, pp. 466, 514.
\5\ Globe, pp. 547-552, 579-584.
\6\ First session Forty-eighth Congress, House Report No. 794;
Mobley, p. 79.
Sec. 417
The constitution of Kansas provided that judges of the supreme and
district courts of the State should not ``hold any office of profit or
trust under the authority of the State or the United States during the
term of office for which said justices or judges shall be elected.''
It was conceded that Mr. Peters came within this prohibition, and the
majority say:
It is clear that Peters falls within the inhibition of the
constitution of Kansas, and if a State possesses the power to add to
the qualifications prescribed by the Constitution of the United States
for Representatives in Congress, then he was ineligible at the time he
was voted for, and is not entitled to a seat in this House.
Article I, section 2, of the Constitution of the United States
provides that--
``No person shall be a Representative who shall not have attained the
age of 25 years and been seven years a citizen of the United States,
and who shall not, when elected, be an inhabitant of the State in which
he shall be chosen.''
The Constitution, by prescribing certain qualifications enumerated in
the section just quoted, according to a well-settled rule of
construction, excludes all others.
The States have no power to superadd other qualifications, for the
reason that such power can not, in the nature of things, be found among
the reserved rights of the States, and no such power is delegated to
them by the Federal Constitution.
Congress is the creature of the Constitution of the United States,
and the right of the people of the several States to representation
therein is derived wholly from that instrument, and the States could
not have reserved the right to prescribe qualifications of Members of
Congress, when the right to elect them at all grew out of the formation
of the National Government.
The question involved in this contest is not a new one. It has been
too well settled to require further elaboration, and the committee will
content themselves with a reference to a few of the authorities on the
subject:
``Now, it may properly be asked, where did the State get the power to
appoint Representatives in the National Government? Was it a power that
existed at all before the Constitution was adopted? If derived from the
Constitution, must it not be derived exactly under the qualifications
established by the Constitution, and none others? If the Constitution
has delegated no power to the States to add new qualifications, how can
they claim. any such power by the mere adoption of that instrument,
which they did not before possess?
``The truth is that the States can exercise no powers whatsoever,
which exclusively spring out of the existence of the National
Government, which the Constitution does not delegate to them. They have
just as much right, and no more, to prescribe new qualifications for a
Representative as they have for a President. Each is an officer of the
Union, deriving his powers and qualifications from the Constitution,
and neither created by, dependent upon, nor controllable by the States.
It is no original prerogative of State power to appoint a
Representative, a Senator, or President for the Union. (Story on the
Constitution, vol. 1, secs. 626 and 627.)
``The question whether the individual States can superadd to or vary
the qualifications prescribed to the Representative by the Constitution
of the United States is examined in Mr. Justice Story's Commentaries on
the Constitution, volume 1, pages 99 to 103, but the objections to the
existence of any such power appears to me to be too palpable and
weighty to admit of any discussion. (1 Kent's Commentaries, p. 228,
note F.)''
To same effect, Paschal's Annotated Constitution, page 305.
The precise question presented in this case was determined by this
House in the cases of Turney v. Marshall, and Fouke v. Trumbull, of
Illinois. (Bartlett's Contested Election Cases from 1834 to 1865, p.
167.)
The tenth section of the fifth article of the constitution of the
State of Illinois, which was adopted on the 6th day of March, 1848, is
in the words following:
``The judges of the supreme and circuit courts shall not be eligible
to any other office or public trust of profit in this State or the
United States during the term for which they were elected, nor for one
year thereafter. All votes for either of them for any elective office
(except that of judge of the supreme or circuit courts), given by the
general assembly or the people, shall be void.''
Sec. 418
Marshall and Trumbull had been judges of Illinois, and at the time
they were elected Members of Congress were clearly within the
prohibitory provisions of the constitution of that State.
The Committee on Elections, in their report to the House on these
cases, state the questions to be determined as follows:
``This presents the question whether a State may superadd to the
qualifications prescribed to the Representative in Congress by the
Constitution of the United States.''
The committee reached the conclusion that a State could not add to
the qualifications prescribed by the Constitution of the United States,
and reported that Trumbull and Marshall were entitled to their seats.
The report of the committee was sustained by the House by a decisive
vote.
Trumbull's case, determined by the United States Senate in 1856, is
also directly in point. (Election Cases from 1834 to 1865, p. 618.)
The authorities cited place the question involved in this case beyond
the realm of doubt. It is very clear that S. R. Peters was duly elected
a Member of the Forty-eighth Congress from the State of Kansas at
large, and that he possessed all the qualifications requisite to
entitle him to take his seat.
The committee, therefore, submit the following resolution and
recommend its adoption:
Resolved, That S. R. Peters was duly elected a Member of Congress
from the State of Kansas, and is entitled to his seat.
Mr. R. T. Bennett, of North Carolina, filed minority views in which
he argued at length, with an abundant citation of precedents, and an
elaborate review of the Constitution, that the State had the right to
prescribe the additional qualification. He also argued that Senators
and Representatives were not ``officers'' of the General Government.
Assuming that Mr. Peters was disqualified, he next argued
elaborately, with a review of precedents, that the minority candidate
was entitled to be seated. This argument was replied to by Mr. Elliott
in the course of the debate.\1\
The minority proposed resolutions declaring Mr. Peters ineligible,
and seating Mr. Wood.
The report was debated April 23,\2\ and on that day the minority
proposition declaring Mr. Peters ineligible was disagreed to; ayes 20;
noes 106. The next proposition declaring Mr. Wood entitled to the seat
was disagreed to.
Then the majority resolution confirming the title of Mr. Peters was
agreed to without division.
418. A Member-elect whose credentials were in due form, but whose
age was not sufficient to meet the constitutional requirement, was not
enrolled by the Clerk.
A Member-elect not being of the required age, the taking of the oath
was deferred until he was qualified.
On December 5, 1859,\3\ among the Members-elect appearing with
credentials was Mr. John Young Brown, of Kentucky. His name appears in
the list of Members-elect in the Congressional Globe of that date, but
does not appear in the Journal on the roll of Members-elect called by
the Clerk.
In this Congress there was a contest for Speaker lasting from
December 5, 1859, until February 1, 1860, when, on the forty-fourth
vote, a Speaker was elected. Mr. Brown does not appear among those
voting in this contest, nor was he sworn in on
-----------------------------------------------------------------------
\1\ Record, p. 3298.
\2\ Record, pp. 3296-3303; Appendix, p. 75; Journal, pp. 1115-1117.
\3\ First session Thirty-sixth Congress, Journal, p. 7; Globe, p. 2.
Sec. 419
February 1,\1\ when the oath was administered to the Members of the
House by the Speaker.
At the beginning of the next session, on December 3, 1860,\2\ Mr.
Brown was sworn in.
No explanation was given on any of the above dates of the delay of
Mr. Brown in taking the oath.
The reason for the delay appears incidentally in a debate on June 18,
1860,\3\ when Mr. John W. Stevenson, of Kentucky, explained that Mr.
Brown was under the constitutional age, and had not been sworn in,
although the State authorities of Kentucky had issued a certificate to
him.\4\
419. The Constitution defines what shall constitute citizenship of
the United States and of the several States.--Section 1 of Article XIV
of the Constitution provides:
Section 1. All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States
and of the State wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.\5\
420. The South Carolina case of William Smith, the first election
case in the First Congress.
A native of South Carolina, who had been abroad during the Revolution
and on his return had not resided in the country seven years, was held
to be qualified as a citizen.
The House decided a Member-elect entitled to a seat on his prima
facie right, although knowing that his qualifications were under
examination.
In the first election case the Committee on Elections were directed
to take proofs, but not to present any opinion thereon.
A Member whose qualifications were questioned was permitted to be
present before the committee, cross-examine, and offer counter proofs.
Instance of an inquiry as to a Member-elect's qualifications
instituted by petition.
As to whether or not a disqualified Member who has taken the oath may
be excluded by a majority vote.
As to the effect of absence from the country on the question of
citizenship.
The First Congress assembled on March 4, 1789, and a quorum not being
present the House met and adjourned daily until April 1, when a quorum
appeared
-----------------------------------------------------------------------
\1\ Journal, p. 166; Globe, p. 655.
\2\ Second session Thirty-sixth Congress, Journal, p. 7; Globe, p. 2.
\3\ First session, Thirty-sixth Congress, Globe, p. 3125.
\4\ William C. C. Claiborne, of Tennessee, said to have been born in
1775, took his seat in the House on November 23, 1797, without
question, although if the date of his birth is correct he was only 22
years of age. (Second session Fifth Congress, Journal, p. 84; Vol. IV,
New International Encyclopaedia.)
\5\ This portion of the Constitution was declared ratified July 21,
1868.
Sec. 420
and a Speaker was elected. On April 13 \1\ Mr. William Smith, of South
Carolina, appeared and took his seat. On April 15 \2\ a petition of
David Ramsay, of the State of South Carolina, was presented to the
House and read, setting forth that Mr. Smith was at the time of his
election ineligible and came within the disqualification of the third
paragraph of the Constitution, which declared that no person should be
a Representative who should not have been seven years a citizen of the
United States.\3\ This petition was referred to the Committee on
Elections with instructions to report ``a proper mode of investigating
and deciding thereupon.'' This Elections Committee, which had already
been chosen, consisted of Messrs. George Clymer, of Pennsylvania;
Fisher Ames, of Massachusetts; Egbert Benson, of New York; Daniel
Carroll, of Maryland; Alexander White, of Virginia; Benjamin
Huntington, of Connecticut; and Nicholas Gilman, of New Hampshire.
On April 18,\4\ in accordance with a usage then established and
continued in several Congresses, the Committee on Elections reported a
list of the Members whose credentials were ``sufficient to entitle them
to take seats in this House,'' and the House agreed to the report. The
name of William Smith, of South Carolina, was on this list.
On the same day, and very soon thereafter, the Committee on Elections
reported as to the case of Mr. Smith, the report, after amendment by
the House, being as follows:
That in this case it will be sufficient, in the first instance, that
a committee take such proofs as can be obtained in this city respecting
the facts stated in the petition, and report the same to the House;
that Mr. Smith be permitted to be present from time to time when such
proofs are taken to examine the witnesses, and to offer counter proofs,
which shall also be received by the committee and reported to the
House; that if the proofs, so to be reported, shall be declared by the
House insufficient to verify the material facts stated in the petition,
or such other facts as the House shall deem proper to be inquired into,
it will then be necessary for the House to direct a further inquiry,
especially the procuring whatever additional testimony may be supposed
to be in South Carolina, as the case may require; that all questions
arising on the proofs be decided by this House, without any previous
opinion thereon reported by a committee.
The report having been considered on April 29, and amended by the
House to read as above shown,\5\ it was--
Resolved, That this House doth agree to the said report, and that it
be an instruction to the Committee of Elections to proceed accordingly.
On May 16 \6\ a yea-and-nay vote occurred in the House and Mr. Smith
is recorded as voting, showing conclusively that he had taken the oath
while the question as to his qualifications was pending.
-----------------------------------------------------------------------
\1\ First session First Congress, Journal, p. 12. It is a fair
presumption that, Mr. Smith took the oath when he took his seat, as on
April 6 the House had agreed on a form of oath which was on April 8
administered to those present. Other Members came in and took seats
after that, and undoubtedly took the oath. The record of Mr. Smith's
appearance is the same as that of others.
\2\ Journal, p. 14.
\3\ See section 413 of this chapter.
\4\ Journal, pp. 16, 17, 23.
\5\ Journal, p. 23; Annals, p. 232; American State Papers
(miscellaneous), p. 1. The amendments made by the House are not
specified.
\6\ Journal, p. 37.
Sec. 420
On May 12 \1\ the committee submitted their report, which was taken
up for consideration on May 21. The report \2\ stated:
That Mr. Smith appeared before them, and admitted that he had
subscribed, and had caused to be printed in the State Gazette of South
Carolina, of the 24th of November last, the publication which
accompanies this report, and to which the petitioner doth refer as
proof of the facts stated in his petition; that Mr. Smith also admitted
that his father departed this life in the year 1770, about five months
after he sent him to Great Britain; that his mother departed this life
about the year 1760, and that he was admitted to the bar of the supreme
court in South Carolina in the month of January, 1784.
The committee also submitted certain counter proofs, mostly copies of
acts of South Carolina.
On May 21 and 22 \3\ the House considered the report, and in the
debate the following facts were stated and admitted:
That Mr. Smith was born in South Carolina, of parents whose ancestors
were the first settlers of the colony, and was sent to England for his
education when about 12 years of age. In 1774 he was sent to Geneva to
pursue his studies, where he resided until 1778. In the beginning of
that year he went to Paris, and resided two months as an American
gentleman; was received in that character by Doctor Franklin, Mr.
Adams, and Mr. Arthur Lee, the American commissioners to the Court of
France. In January, 1779, he left Paris for London, to procure from the
guardian appointed by his father the means of his return to America. He
was disappointed, however, of the expected aid, and was obliged to
remain in England till he could get remittances from Charleston. In the
interval the State of South Carolina fell into the hands of the enemy,
and this rendered it impossible at that time to return. He remained in
England, and embraced the opportunity to acquire a knowledge of the
English law, but could not be admitted to the practice of it because he
had not taken the oath of allegiance to Great Britain, which is a
necessary qualification. Having obtained the necessary funds, he left
London in October or November, 1782, with a view of returning to
America, but avoided taking passage for Charleston, because it was then
in possession of the British, but traveled over to Ostend, and there
embarked in a neutral vessel for St. Kitts, with the intention of
receiving the first opportunity of reaching the American camp. In
January he sailed from Ostend, but was shipwrecked on the coast of
England and obliged to return to London in order to procure another
passage, and was thus prevented from reaching the United States till
1783. That on his arrival in Charleston he was received by his
countrymen as a citizen of the State of South Carolina, and elected by
their free suffrages a member of the legislature, and was subsequently
elected to several honorable posts, and finally, in 1788, to the seat
in Congress, which is the subject of this contest.
The constitution of South Carolina was silent as to citizenship; but
certain laws had from time to time been passed, both with regard to
those absent from the country for purposes of education and with regard
to aliens. The constitution also prescribed certain qualifications of
residence for those holding certain offices.
It was shown that in Mr. Smith's public career in his own State it
had uniformly been assumed that he was a citizen of the State during
the time he resided abroad; and no questions were raised, although he
was disqualified for some of those positions under the law, if it was
to be assumed that he was not a citizen while abroad.
After debate, the House, on May 22, 1789,\4\ agreed to the following
resolution by a vote of 36 yeas to 1 nay:
Resolved, That it appears to this House, upon mature consideration,
that William Smith had been seven years a citizen of the United States
at the time cf his election.
-----------------------------------------------------------------------
\1\ Journal, pp. 33, 39.
\2\ Journal, p. 33; American State Papers (miscellaneous), p. 8.
\3\ Journal, pp. 39, 40; Annals, pp. 397-408.
\4\ Journal, p. 39.
Sec. 421
It does not appear that any question was raised in the debate as to
the right of the House to decide by majority vote on the title of a
Member to his seat should he be found disqualified.
421. The Michigan election case of Biddle v. Richard in the
Eighteenth Congress.
An alien naturalized by a State court not expressly empowered by the
United States Statutes so to do was yet held to be qualified as a
citizen.
A person who had resided in a Territory one year as a person, but not
as a citizen, was held to be qualified as a Delegate under the law
requiring a residence of one year.
A discussion as to whether or not a Delegate should have the same
qualifications as a Member.
The office of Delegate was created by ordinance of the Continental
Congress.
On January 13, 1824,\1\ the Committee on Elections reported on the
contested election case of Biddle v. Richard, from Michigan Territory.
Mr. Richard was objected to on the ground that he was an alien, his
naturalization before a Michigan court being alleged to be invalid; and
on the ground, should the naturalization be held valid, he was still
disqualified, as the naturalization had not taken place a year previous
to the election.
The committee in this case first noticed the subject of the
qualifications of a Delegate, and called attention to the fact that the
office was not one provided for by the Constitution, but grew out of
the ordinance of Congress for the government of the Northwest
Territory, passed before the adoption of the Constitution. Neither by
the terms of that ordinance nor by the laws of the United States were
qualifications required of a person elected Delegate. Unless a rule
could be deduced from the principles of the Constitution there was
nothing to prevent an alien from holding a seat in Congress as Delegate
from a Territory. But the committee expressly disclaim any intention of
pronouncing a decision on this point, since the case did not render it
absolutely necessary.
The sitting Member had been naturalized in a county court in
Michigan, and while the naturalization law of the United States did not
in terms include such court among those authorized to naturalize
aliens, yet the committee concluded that by implication the intention
to authorize such a court was plainly shown.
As to the second objection, it was shown that the law prescribed a
residence of one year ``next preceding the election'' as a
qualification needed to make a person eligible to any office in said
Territory. Even admitting the office of Delegate to be included in this
prescription, it was to be observed that it was not the citizen but the
person who was required to reside in the Territory one year. Therefore
the committee overruled the objection that the naturalization had not
taken place a year before the election.
The committee concluded that Gabriel Richard was entitled to the
seat.
On February 2, 1824, the House practically concurred in this
conclusion by ordering that John Biddle have leave to withdraw his
petition and documents.
-----------------------------------------------------------------------
\1\ First session Eighteenth Congress, Contested Elections in
Congress, from 1789 to 1834, p. 407.
Sec. 422
422. The Florida election case of David Levy in the Twenty-seventh
Congress.
An instance of citizenship conferred by treaty stipulations.
In determining citizenship a committee ruled that the domicile of the
father is considered the domicile of the son during the minority of the
son if he be under the control and direction of the father.
In 1841-42,\1\ the Committee on Elections twice examined the
qualifications of David Levy, sitting as Delegate from Florida.
By the treaty ceding Florida to the United States, it was provided:
The inhabitants of the territories which his Catholic Majesty cedes
to the United States by this treaty shall be incorporated in the Union
of the United States as soon as may be consistent with the principles
of the Federal Constitution, and admitted to the enjoyment of all the
privileges, rights, and immunities of the citizens of the United
States.
This treaty was signed February 22, 1819, and ratified February 22,
1821. The majority of the Committee of Elections found that the formal
transfer began at St. Augustine on July 10, 1821, and was completed at
Pensacola July 17, and that on the latter day Governor Jackson issued
his proclamation of American sovereignty, in accordance with the
directions of the Government at Washington. The minority of the
committee found that East Florida (there being two provinces) was
transferred July 10, and preferred that date to July 17.
David Levy was not an inhabitant of Florida on either the 10th or
17th of July 1821. He had been born on the island of St. Thomas (then a
possession of Denmark) on June 2, 1810, his father being a subject of
the King of Denmark. David Levy came to Norfolk, Va., in 1819, and
attended school and worked there until 1827. He did not go to Florida
to reside until 1827. It is evident, therefore, that he was not an
inhabitant of Florida, in his own right, at the time of the transfer of
the Territory.
The committee, in the course of the investigation, adopted the
principle ``that the domicil of the father is the domicil of the son
during the minority of the son, if the son be under the control and
direction of the father.''
Therefore the question turned on whether or not Moses Levy, father of
David Levy, was an ``inhabitant'' of Florida at the time of the
transfer of sovereignty. Moses Levy was born in Morocco, but at the
time of the birth of his son was a subject of the King of Denmark. In
the early part of 1821 he came to Philadelphia and took out his
declaration to become an American citizen. He then went to Florida, and
the question turns principally on whether he was there at the time of
the transfer, although the minority contended that, not being a subject
of the King of Spain, the treaty did not operate on him. In their first
report the committee found that Moses Levy was not an inhabitant of
Florida at the time of the transfer, and that, had he been, the King of
Spain might not have transferred his allegiance to the United States,
since he was a Danish subject.
-----------------------------------------------------------------------
\1\ First session Twenty-seventh Congress, House Report No. 10;
Second session, Report No. 450; 1 Bartlett, p. 41; Rowell's Digest, p.
114.
Sec. 423
423. The Florida election case of David Levy, continued.
A Delegate who, though an alien by birth, had lived in the United
States from an early age, and whose father had been a resident for
twenty years, was not disturbed on technical objections as to his
citizenship.
The House has the same authority to determine the right of a Delegate
to his seat that it has in the case of a Member.
A committee held that the strongest reasons of public policy require
a Delegate to possess qualifications similar to those required of a
Member.
A committee held that under the principles of the common law an alien
might not hold a seat as a Delegate.
A committee denied the binding effect of a decision of a Territorial
court on a question of fact concerning the qualifications of a
Delegate.
An instance of the admission of ex parte testimony in an election
case.
Later additional evidence was presented, and, although objected to by
the minority of the committee as inadmissible because taken ex parte,
was admitted. This testimony shows, among other things, that Moses Levy
was recorded as an inhabitant in a registry established by General
Jackson. This proceeding appeared undoubtedly to have been ultra vires;
but there was other evidence as to the time of the arrival of Moses
Levy in Florida, and the majority of the committee finally concluded
that as the Delegate had lived in the United States from an early age,
as his father had been a resident of the United States for more than
twenty years and had twice taken the oaths of abjuration and
allegiance, the ``spirit of the naturalization policy of the country''
had been fully satisfied. This idea seems to have been of considerable
weight in determining the committee to reverse its first report, and
decide that Mr. Levy was entitled to the seat. This reversal of
conclusion was barely made, four of the nine members of the committee
dissenting and a fifth giving only a qualified assent.
The House did not act on the report; but Mr. Levy retained the seat
without confirmation of the report by the House, since he had
originally been admitted to the seat.
In the course of the consideration of this case the committee came to
certain conclusions bearing vitally on the case.
1. It was urged that the House of Representatives had no jurisdiction
to try or determine the eligibility of a Territorial Delegate. The
committee concluded that the House had plenary authority to investigate
and decide upon all questions touching the right of a Delegate to hold
a seat in that body. Such authority seemed absolutely essential to the
existence of a well-regulated legislative body, which must have the
power to prevent the intrusion of improper persons, or guard its own
rights from violation. And the House had so determined in many cases
from 1794 to 1838.
2. That citizenship was not one of the qualifications of a Delegate
in the acts of Congress under which he was appointed; and that,
therefore, the House of Representatives could not make it a test of
eligibility. The committee agreed that while the original ordinance of
1787 for the government of the Northwest Territory was silent in
reference to the qualifications of a Delegate, yet must have assumed
certain
Sec. 424
ones. While not strictly or technically a Representative, yet,
considering the dignity and importance of the office, the strongest
reasons of public policy would require that he should possess
qualifications similar to those required by a Representative. Even if
the letter and spirit of the Constitution might not give light, yet the
well-settled principles of common law would prevent an alien from
holding a seat in the House of Representatives. Chancellor Kent had
enunciated the proposition that an alien might not hold any civil
office, or take any active share in the administration of the
Government. The committee therefore were confident that an alien might
not exercise the office of a Delegate to Congress.
3. That the rights of David Levy under the treaty had been the
subject of recent adjudication by the highest judicial tribunal of
Florida, constituted of judges appointed and commissioned by the United
States Government, and that such adjudication, if not conclusive, was
persuasive evidence, and that the committee ought not to look behind
it. The committee denied that the court in question was one of
concurrent jurisdiction, or that the decision in question was directly
upon the point. Furthermore, it was not between the same parties.
424. The Indiana election case of Lowry v. White in the Fiftieth
Congress.
A Member who had long been a resident of the country, but who could
produce neither the record of the court nor his final naturalization
paper, was nevertheless retained in his seat by the House.
The House, overruling its committee, admitted parol evidence to prove
the naturalization of a Member who could produce neither the record of
the court nor his certificate of naturalization.
Determination by a divided Elections Committee that the
disqualification of a sitting Member does not entitle the contestant,
who had received the next highest number of votes, to the seat.\1\
On January 30, 1888,\2\ Mr. F. G. Barry, of Mississippi, from the
Committee on Elections, submitted the report of the majority of the
committee in the Indiana case of Lowry v. White. The sitting Member had
been returned by a majority of 2,484 votes over contestant, and also a
clear majority of all the votes polled at the election.
The questions of importance in this case all arose out of the alleged
disqualification of the sitting Member, it being alleged that he had
not been on the 4th of March, 1887, a citizen of the United States for
a period of seven years prior thereto, as required by the Constitution.
(1) The majority state the first question:
(1) Was the contestee a naturalized citizen of the United States,
and.had he been for seven years previous to the 4th of March, 1887, and
if he was, can he prove that fact by parol?
The majority report thus answers this question:
The second paragraph of section 2, Article I, of the Constitution
of.the United States says:
``No person shall be a Representative who shall not have attained the
age of twenty-five years and been seven years a citizen of the United
States, and who shall not, when elected, be an inhabitant of that State
in which he shall be chosen.''
-----------------------------------------------------------------------
\1\ See also Section 417 of this volume for reference to an elaborate
discussion of this point.
\2\ First session Fiftieth Congress, House Report No. 163; Mobly, p.
623.
Sec. 424
In the eighth section of the Constitution of the United States power
is conferred on Congress ``to establish an uniform rule of
naturalization.'' This power is exclusively in Congress. (2 Wheaton,
269.) The existing legislation of Congress on that subject is contained
in the thirty-third chapter of the Revised Statutes, 1878.
It is admitted that contestee is a native of Scotland, and that he
arrived in the United States on the 8th of August, 1854. Your committee
believe that in claiming to be a naturalized citizen of this country he
fails to bring himself within the provision of said statute. His
original status is presumed to continue until the contrary be shown.
(Hauenstein v. Lynhom, 100 U.S., 483.) In the opinion of your committee
contestee has failed to remove this presumption.
It is proven and not disputed that contestee went through the final
forms of naturalization and admission to citizenship at Warsaw,
Kosciusko County, Ind., on Monday, November 1, 1886, in a court of
record, on the ground that the doctrine of relation might apply to his
declaration of intention which is duly entered of record on the 24th
day of July, 1858, in the circuit court of Allen County, Ind.
To say the least of it, this is an unfavorable admission on the part
of the contestee. It is not contended by the learned counsel that the
doctrine of relation will apply in this case. Contestee, however,
claims to have been admitted to citizenship in the court of common
pleas of Allen County, Ind., on February 28, 1865, which is the vital
point of contention in this case.
It is admitted that there is no record of such proceedings, nor a
trace of such a record in any court; but contestee now claims that a
certificate of naturalization was then issued to him which he can not
now produce, nor does he or any one know what became of it.
If contestee were naturalized in February, 1865, can he prove it by
parol? A thorough examination of the authorities convince your
committee that he can not. Contestee, in his brief, holds that parol
evidence may be received to prove the fact of naturalization; that it
is the oath of fidelity to the Government which makes an alien a
citizen, and that fact can be proven by parol in the absence of the
record of the court.
There are set forth in the printed record of this case
contemporaneous entries of naturalization in said Allen County, which
are claimed by contestee to be in duplicate of the certificate issued
to naturalized persons about the period he claims to have been
naturalized, and from this it is assumed by contestee he held such a
certificate.
Whatever weight might be given to this alleged missing certificate,
even if produced in evidence, it is unnecessary to discuss, and we
forbear an opinion on that. It is sufficient to say that such an
attempt to prove it or its contents is a species of evidence too
speculative and inferential to be entertained, especially when it is
sought to establish the solemn proceedings of a court of record. No
authority in support of such a rule of evidence has been furnished this
committee, and we do not think there is one in existence.
As the able counsel for the contestee tersely stated the proposition
in their brief, ``Can parol evidence be received to prove the fact of
naturalization?'' We answer, it can not; certainly not in the absence
of any record whatever, or even a certificate of naturalization, as is
admitted in this case. The authorities therein cited to the effect that
the contents of a lost record may be proven by parol, is a principle
too familiar to discuss. But we have not found a single adjudicated
case in which oral evidence is admitted to prove a record which never
existed.
Not one witness testifies to having read the alleged certificate, and
none but contestee says he ever saw it, and he does not attempt to
state its contents. There are only two witnesses, Isaac Jenkinson and
William T. Pratt, who profess to have been present at the alleged
naturalization of contestee in February, 1858, besides the contestee
himself. Pratt says nothing of seeing such certificate, and Isaac
Jenkinson says:
``I have no recollection of any papers being drawn up or signed or
sworn to on that occasion.'' (Record, p. 190, question 41.)
In Shaeffer v. Kreutzer (6 Binn., 430), which is relied on by
contestee, Justice Yates says:
``It [the verdict] is no evidence of the fact having been legally
decided, for the judgment may have been arrested and a new trial
granted. Here a former action of ejectment was brought for the same
land by persons to whom the present parties are privies, and the
verdict given therein was offered to introduce the collateral fact of
payment of the cost of that suit, and to account for the defendant in
this action coming into possession, and of the plaintiff's acquiescence
in the adverse title.''
Sec. 424
Contestee also relies on Campbell v. Gordon. (6 Cranch, 176.) This
was a bill to rescind contract for sale of land. There was a memorandum
on the minutes of the court as follows:
``At a district court held at Suffolk, William Currie, native of
Scotland, migrated into the Commonwealth, took the oath, etc.''
There was also a certificate of naturalization of appellee's father.
Judge Spears, in discussing that case, said not only the certificate of
the clerk but the minutes of the court were produced; besides, the
certificate had appended to it these words: ``A copy: test, Jno. C.
Littlepage,'' who it appeared in evidence was clerk. (See Green's Son,
Federal Reporter, July, 1887, vol. 31, p. 110.)
In Dryden v. Swinburne the court discusses the case of Campbell v.
Gordon at length, and says:
``When the court say, `The oath when taken confers upon him the right
of citizenship' it is obvious that they meant when the record showed
the oath was taken it would suffice, and it would be presumed that it
was not administered, or at least an entry was not made of it, till all
the other requisites of the statutes were complied with. It would be an
utter distortion of this language and decision to hold that the taking
of the oath by parol testimony, when the record was produced, and it
failed to show any naturalization or attempt at naturalization.''
(Dryden v. Swinburne, 20 W. Va., 125. See also 18 Ga., 239.)
Any other construction would be in direct violation of the Revised
Statutes of the United States upon the subject of naturalization.
Section 2165 says:
``An alien may be admitted to become a citizen of the United States
in the following manner, and not otherwise:''
It subsequently says, ``which proceedings shall be recorded by the
clerk of the court.'' It distinctly provides that the naturalization
proceedings must be in a court of record. Hence Justice Marshall says:
They [the courts of record] are to receive testimony, to compare it
with the law, and to judge of both law and fact. The judgment is
entered on record as the judgment of the court. It seems to us, if it
be in legal form, to close all inquiry; and like every other judgment,
to be the complete evidence of its own validity.''
In this extract that great jurist was discussing the proceedings in
naturalization.
Contestee relies also on Stark v. Insurance Company (7 Cranch, 420).
This was an action of covenant upon a policy of insurance. The goods
insured were warranted to be American property. The record entries are
complete, with a formal judgment of admission to citizenship, but fail
to show that Stark, the naturalized alien, had filed a previous
declaration of intention. It was held that the judgment was conclusive
as to antecedent matters in the cause.
Contestee also cites 91 United States Reports, page 245 (Insurance
Co. v. Tesdale). Suit was brought by plaintiff, who was administratrix
of her deceased husband, in her individual character, against
defendant, upon a policy of insurance on the life of her husband. The
sole question was, could letters of administration be admitted to prove
the death of a third person where the right of action depends upon the
death of such person; and the court held that it could not be done.
The question of naturalization was in no way involved, but the court
says, incidentally, that a certificate of naturalization is good
against all the world as a judgment of citizenship, from which may
follow the right to vote and hold property; but it can not be
introduced as evidence of residence, age, or character. (91 U.S.R.,
245.)
Mr. Calkins, in his very able and ingenious argument before the
committee, relied with great emphasis on the case of Coleman on habeas
corpus (15 Blatchford, 406), in which the court says, speaking of the
Revised Statutes concerning naturalization proceedings:
``The provisions for recording proceedings at the close of the second
condition and the provisions for recording the renunciation mentioned
in the fourth condition are introduced in such form that they may very
well be regarded as merely directory.''
This was a criminal proceeding, highly penal in its nature, the
offense with which Coleman was charged being a felony, under Revised
Statutes of the United States, section 5426.
Coleman held a certificate of naturalization, and the only question
presented was: (1) Had the certificate been unlawfully issued or made;
and (2) did Coleman know that when he so issued it?
Coleman was arraigned for having so used said certificate for the
purpose of registering himself as a voter, knowing it was unlawfully
issued. There were papers on file in the clerk's office, from whence
the certificate issued, setting forth the necessary proceedings of
Coleman's naturalization. His name was also entered in the
naturalization index. The certificate was signed by the clerk of the
superior court, attested by the seal of the court, certifying that the
copy, before set forth, of the entry in regard
Sec. 424
to Coleman in such naturalization index, ``is a true extract from the
record of naturalizations of this court, remaining in my office to
date.''
Judge Blatchford held that Coleman was duly and legally admitted to
citizenship, and that he should be discharged.
It can not be contended that in a matter so highly penal any evidence
that would go toward acquittal would be sufficient to establish
citizenship and clothe an alien with all the political powers and
privileges of a citizen. What would be sufficient in one case might be
wholly insufficient in the other.
In such a prosecution the criminal intent or the guilty knowledge of
using an unlawful certificate would be the governing question. In such
a case even a reasonable doubt would discharge the defendant. A
naturalized citizen is a mere creature of the law. He derives his
existence as such from the law, and if he fail to follow its essential
provisions he can not be clothed with those high privileges such a law
confers.
But the court says in the Coleman case that propositions are
announced the accuracy of which can not be questioned--such as the
admission of an alien to citizenship is a judicial act (15 Blatchford,
p. 420)--and at furthest the partial committal of the court in the
Coleman case, that the statute requiring the record or proceedings may
very well be regarded as directory, can only be considered as a dictum,
as it was held in that case there was complete and sufficient record of
naturalization.
Contestee also relies on 7 Hill, N. Y., 137-141, but in that case, it
will be observed, the court says:
``The proceedings of naturalization are strictly judicial (p. 138).
The right of citizenship is finally conferred by the judgment of the
court (p. 141).''
He also cites McCarty v. Marsh (5 N. Y., 263) as liberal to the
naturalization of foreigners.
In that case Justice Foot says:
``The simple question, then, is whether the record is conclusive
evidence of the fact that a prior declaration of intention was made in
due form of law. The weight of authority is decidedly in the
affirmative. (Citing 6 and 7 Cranch, supra, Spratt v. Spratt, 4 Peters,
and a large number of cases.)''
Contestee also relies on the case of The Acorn (2 Abbott, U.S.
Reports, p. 434) as liberal concerning the naturalization of
foreigners. This was a libel of information and seizure for forfeiture
for alleged violation of registry laws. One of the causes alleged is,
that when David Muir took the oath he was not a citizen of the United
States, as his oath alleged.
Muir introduced in evidence an exemplified copy of the record of his
naturalization. So far as the question of naturalization is concerned
in that case, Judge Longyear decided that the judgment naturalizing
Muir was conclusive as to the preliminary proceedings necessary to give
the naturalizing court jurisdiction--a familiar principle that runs
through all adjudicated cases on that point. This judge also says in
his opinion:
``The proceeding to obtain naturalization is clearly a judicial one.
(Ibid., p. 444.)
``A hearing is required to be had in open court, and the right can be
conferred only by the judgment of the court, and upon satisfactory
proof. (Ibid., p. 444.)''
Contestee relies in his brief on the following extract from Morse on
Citizenship, page 84:
``In case of an individual claiming to be a citizen by
naturalization, the certificate or letter of naturalization is the
usual and orderly proof which is offered, but is not exclusive. If the
letter or certificate is lost and the record can not be discovered,
secondary evidence to establish citizenship would be admissible.
(Citing Field's International Code, p. 136, note, and the opinion of
Attorney-General Black, vol. 9, p. 64.)''
The last-named author, under the subject of allegiance, cites
Attorney-General Black, who simply says:
``The fact of renunciation is to be established like any other facts
for which there is no prescribed form of proof by evidence which will
convince the judgment.''
This was a case of a Bavarian, once naturalized here, claiming
renunciation of his citizenship as a citizen of this country; and how
and where the author of the above quotation got his law your committee
are at a loss to determine. In international affairs such a principle
might apply, when the question of citizenship is a matter of dispute
and the liberty or property of a subject are involved. But there are no
authorities holding such a doctrine in this country when an alien,
claiming to be naturalized, seeks to establish that fact by parol
proof.
The case of Dryden v. Swinburne (22 W. Va.) is a remarkable parallel
case to this in all of its salient features. Judge Green in that case,
in an elaborate opinion, discusses the subject in the most learned
manner.
Sec. 424
The following extracts from the syllabus in that case is a clear
statement of the decision on this point:
``The law requires that an alien should be naturalized in a court of
record, and his admission to citizenship must be a judgment of such
court; and therefore if it is claimed in any case that an alien has
been naturalized in a certain court, and it be shown, that if
naturalized at all, he was naturalized in that court, and the records
of such court are produced, and an examination of them shows that no
entry was made on the records of such court naturalizing such alien, it
can not be proven by parol evidence that he was admitted to citizenship
in such court, but that by inadvertence, or any other reason, there was
no entry made of it; nor can the citizenship of an alien, under such
circumstances, be presumed by proof of his having held real estate or
of his having voted or held office or by other circumstances.''
The same doctrine is announced in the case of Chas. Green's Son and
others v. Salas (3 Federal Law Reporter, July 26, 1887); also in
Rutherford v. Crawford (53 Ga., 138).
In these last two cases a certificate was presented by the persons
claiming to have been naturalized, which was held insufficient in each.
In Andrews v. Inhabitants of Boylston (110 Mass., 214) it is held, if
the records of a town meeting fail to show a two-thirds vote to
reestablish a school-district system, parol evidence is inadmissible to
show it, even though the record shows that the town voted to
reestablish the school-district system.
The omission in a record can not be supplied by parol proof. (2
Pickering, 397.)
The court says ``it would be dangerous to admit of such.proof.'' (2
Pickering, 397. See also 125 Mass., 553; 117 Mass. 469; 58 Iowa, 503;
Wharton's Evidence, 987; 18 Maine, 344; 3 Blackford, 125; 23 Maine,
123.) '
In Slade v. Minor (2 Cranch, Circuit Court Reports, D. C., 139), the
point was distinctly presented, and the case was decided upon it, in
which the court held that the naturalization of Charles Slade could not
be proved by parol.
Certificates of naturalization issued by the clerk of a court,
without any hearing before the judge in open court, are void, and
confer no right of citizenship upon the holder. (McCrary on Elections,
see. 56.)
Starkie in his work on evidence, page 648, says:
``In the first place, parol evidence is never admissible to supersede
the use of written evidence where written proof is required by law.
Where the law, for reasons of policy, requires written evidence, to
admit oral evidence in its place would be to subvert the rule itself.
``To admit oral evidence as a substitute for instruments to which, by
reason of their superior authority and permanent qualities, an
exclusive authority is given by the parties, would be to substitute the
inferior for the superior degree of evidence; conjecture for fact, and
presumption for the highest degree of legal authority; loose
recollections and uncertainty of memory for the most sure and faithful
memorials which human ingenuity can devise or the law adopt; to
introduce a dangerous laxity and uncertainty as to all titles to
property, which, instead of depending on certain fixed and unalterable
memorials, would thus be made to depend upon the frail memories of
witnesses, and be perpetually liable to be impeached by fraudulent and
corrupt practices.''
And he thus lays down the rule:
``In the first place, written evidence has an exclusive operation in
many instances, by virtue of peremptory legislative enactments. So it
has in all cases of written contracts. So also in all cases where the
acts of a court of justice are the subject of evidence. Courts of
record speak by means of their record only, and even where the
transactions of courts which are not, technically speaking, of record,
are to be proved, if such courts preserve written memorials, are the
only authentic means of proof which the law recognizes.''
Wharton, in his Law of Evidence, section 1302, says:
``A court of record is required to act exactly and minutely, and to
have record proof of all its important acts. If it does not, these acts
can not be put in evidence.''
The proceedings of a court of record can be shown only by the
records, unless they are lost or destroyed. (Rutherford v. Crawford, 53
Ga.)
The minority views, signed by Mr. J. H. Rowell, of Indiana, and five
other members of the committee, held:
It is contended by contestant, and held by the majority of the
committee, that no matter what the fact is, unless there is a record
remaining in the court, or unless there was a record made and retained
Sec. 424
from which a transcript could be made, parol proof is not admissible to
establish the fact of naturalization and of the issue of a certificate
thereof.
It is claimed that no naturalization is complete so as to invest the
applicant with citizenship until a record of the proceeding is made in
the court where the judgment was rendered and the oath administered.
We hold the law to be that parol testimony is admissible to prove
naturalization under circumstances such as are shown to exist in this
case.
We hold further that the making out of a certificate of
naturalization, reciting all the requisite facts, under the seal of the
court, is an entry of record of the proceedings, even though that
certificate is carried away from the court, instead of being left with
the clerk.
We hold that, having done all that the statute requires of him, and
having obtained his certificate of naturalization in due form, with all
proper recitals from a competent court, the person is, from that time
invested with citizenship without reference to any further act to be
performed by the clerk of the court.
We hold that the certificate so obtained is original evidence and
conclusive of citizenship in all collateral proceedings, without proof
of any record remaining in court and whether such a record exists or
not.
The minority quote Morse on Citizenship, the case of Acorn (2 Abb. U.
S. Reports, 434-437), Wharton's International Law Digests (sec. 174),
Campbell v. Gurden (6 Cranch, 179), Stark v. Insurance Co. (7 Cranch,
420), Insurance Co. v. Tesdall (91 U. S. Reports, 245), In re Coleman
(15 Black, 406), and after discussing these cases say:
There can be no doubt that parol proof is admissible to establish the
contents of lost deeds and papers and records. (Greenleaf on Ev., vol.
1, sec. 509; Whalen's Ev., vol. 1, sec. 136; Wood's Prac. Ev., see. 7
et seq.; Ashly v. Johnson, 74 Ill., 392.)
Had contestee been able to produce this certificate, would anyone
venture to question his citizenship? And yet the case stands in proof
precisely the game as if he had done so. Everything necessary to admit
parol proof of existence and loss of certificate was given in evidence.
(Record, p. 256.) The book of blank certificates in use in the court at
the time is in evidence. (Record, pp. 214, 272-273, 383.)
Contestee proved that he was in fact naturalized; that no other
record of the proceedings was made so far as could be ascertained than
the certificate issued to him; that he received his final certificate;
that it is lost; that he is the identical person who was naturalized,
and the contents of certificates universally in use at that time. By
just such proof the courts of the country are constantly ascertaining
the contents of lost papers involving the title to property; the
contents of most solemn records are so proven.
Life and liberty are put into the scales upon the same kind of proof.
If every other right of the citizen may be thus established, we are at
a loss to know why this contestee is to be deprived of like rights and
like application of unquestioned rules of law.
He was chosen to the Congress by the very emphatic voice of the legal
voters of his district. He has for more than thirty years been an
inhabitant of the country, deporting himself in such a way as to meet
the approval of his fellowmen.
For more than twenty years he has been recognized as a citizen of the
United States, and as such was chosen a Representative to the Fiftieth
Congress from the Twelfth Congressional district of Indiana.
If the report of the majority of the committee is to be sustained, an
unparalleled injustice will be done to those who elected him and to
contestee himself; not because of any fault or neglect on his part, but
because of the neglect of a clerk who is proven to have been negligent
of duty and careless of the rights of others.
Courts will invoke the aid of technical rules to prevent gross
injustice, but it is the boast of all modem courts that mere technical
rules of law are not permitted to stand in the way of doing equal and
exact justice, unless of such rigid character and so firmly embedded in
the law as to compel adhesion to them. Doubts on such questions are
always resolved in favor of justice and against wrong.
Sec. 424
The majority of the committee have adopted a rule which, while some
authority may be found in favor of it, is rejected by other and
weightier authority--a rule opposed to sound reason and the best canons
of construction.
They have invoked this bare technicality not to prevent wrong, but to
enable the House to commit an outrage upon the rights of contestee and
the people of his district.
(2) The second question:
(2) If he can prove it by oral evidence, does the testimony disclose
sufficient proof to establish that fact?
The majority review the parol proof and give arguments to show its
fragile character.
The minority consider it sufficient, and thus review it:
Contestee is a native of Scotland. He came to this country in 1854,
and has been a resident of the State of Indiana almost continuously
since 1857, most of that time in the city of Fort Wayne, his present
home. He was a captain in the Thirtieth Regiment of Indiana Infantry
Volunteers and was dangerously wounded at the battle of Shiloh.
In 1858 he declared his intention to become a citizen of the United
States, as appears of record in the clerk's office of Alien County,
Ind., the certificate issued to him having been lost.
In February, 1865, about the 28th of that month, he appeared in the
court of common pleas of Allen County, Ind. (a court having common-law
jurisdiction, a clerk and a seal), and produced two credible witnesses
in open court, viz, John Brown and Isaac Jenkson, who were also sworn
in open court as his witnesses to complete his naturalization. He took
the oath of allegiance to the United States and of renunciation, which
was administered to him by the judge of the court.
The clerk then and there issued to him a final certificate of
naturalization, under the seal of the court, the contents of which
certificate is shown by the proof of the only form of final
certificates used in that court. This certificate with other important
papers of contestee has been lost, as conclusively shown by the
evidence.
The clerk of the court negligently omitted to receive the oath of
allegiance and its recitals, but gave to Mr. White the record of the
proceedings then made in the form of a certificate of naturalization,
such as is usually issued to foreigners on being naturalized, and
almost universally accepted as conclusive evidence of citizenship.
On pages 286, 287, and 288 of the record will be found a list of
about one hundred and fifty persons naturalized during the years
between 1860 and 1870 in Allen County, of which naturalization the only
record remaining is a duplicate of the certificate issued to the person
naturalized, from which it appears that the common way of recording
naturalization proceedings in those courts was to make duplicate
certificates, reciting all the facts necessary to complete
naturalization, signed by the clerk and sealed with the seal of the
court, retaining one in the clerk's office and giving the other to the
person naturalized.
In some cases the clerk neglected to fill up the duplicate blank kept
in the office, only filling out one blank and giving that to the person
so naturalized, such certificate being the only record made by the
clerk.
As showing the negligent manner of keeping the records by the clerk
of that court, the evidence discloses several instances of making a
record of naturalization years after the fact.
This same clerk was in the habit of writing up judgments in divorce
cases when the minutes of the judge did not show that any divorce had
been granted, and in four or five cases records were found written up
in which the several cases had not been even docketed, in which there
was nothing to show that such divorces had ever been granted by the
court.
In addition, it is proper to state that many other persons are
similarly situated. Persons who claim to have been in fact naturalized
in Allen County, who have moved away, have frequently written and in
some cases returned to get proof of citizenship and found no trace of a
record.
The fact of Mr. White's naturalization in the courts and at the time
claimed is established to a moral certainty. See testimony of Isaac
Jenkins (R., pp. 187-195), of James B. White (R., p. 229), and of
William T. Pratt, Democratic sheriff at the time (R., p. 196). The
testimony is positive,
Sec. 424
specific, uncontradicted, and unimpeached. Its conclusiveness will
hardly be questioned by any fair-minded man. The absence of a record
remaining in the clerk's office in no way casts a doubt upon it, taken
in connection with the evidence of the unreliability of these records
as kept by the clerk, or rather by the deputy.
Mr. White has passed all the years of his manhood in this country. He
has made the greatest sacrifice that one can make for his country--the
offer of his life in its defense. He has held office in the city where
he resides, and has established such a character that his fellow-
citizens elected him to Congress by nearly 2,500 plurality in a
district where the party with which he affiliates is in the minority by
some 3,000.
Thousands of foreign-born citizens are in like situation with him,
the evidence of their citizenship resting upon duly authenticated
certificates issued by competent courts and without complete records
thereof remaining.
Many of them hold responsible positions in public life; all of them
exercise the right of suffrage at every recurring election. Large
property interests depend upon their citizenship.
It may safely be said that the right to seats in the House of many
Members depends upon the validity of citizenship Testing upon just such
evidence.
In the debate the majority laid stress on the fact that neither the
record of the court nor the naturalization papers could be produced.
(3) The conclusion which the majority proposed raised another
question:
(3) If contestee is ineligible, is contestant, having received the
next highest number of votes, entitled to the seat?
We answer the first in the negative.
The majority say:
Now, with regard to the last proposition, of seating contestant.
The universal weight of authority in the United States and the
numerous decisions in both branches of the Congress thereof render an
extended discussion on this point quite unnecessary. With the exception
of the State of Indiana, where the rule is established by the supreme
court, holding that, where a candidate who receives the highest number
of votes is ineligible, the candidate receiving the next highest number
of votes is entitled to the office, there is perhaps not another State
in the Union where such a doctrine prevails.
The authorities cited by contestant which discuss the control of
suffrage as residing in the States, subject to the limitation imposed
in the fifteenth amendment of the Federal Constitution, in our opinion,
wholly fail to establish his position, that the issue on this point
stands and appends wholly upon Indiana law.
To suffer a Member to be seated from one State in pursuance of this
view and forbid the same right on the part of a Member from another
State would destroy that equality and harmony in the membership of our
National Legislature which the founders of our Government obviously
intended to establish.
The Federal Constitution says the Members of the House shall be
chosen every second year by the people of the several States, and that
the electors of each State shall have the qualifications requisite for
electors in the most numerous branch of the State legislature.
It is a cardinal idea in our political system that this is a people's
government and that the majority rule. In the convention which framed
our common Constitution, when it was proposed to strike out people in
the clause above referred to, and insert legislatures, thus giving the
legislatures the power to elect Representatives, there were only three
votes in the affirmative and eight in the negative. On the final vote
only one State voted in the affirmative, one was divided, and nine in
the negative.
Mr. Jefferson considered that a wholesome provision in our organic
law on the ground that the people should be taxed only by
Representatives chosen by themselves. It is true that article 4,
section 1, of the Constitution of the United States says, ``Full faith
and credit shall be given in each State to the public acts, records,
and judicial proceedings of every other State,'' and that Congress may
enact the necessary laws thereunder.
This was chiefly intended to give the same conclusive effect to
judgments of all the States and
Sec. 424
equal verity to the public acts, records, and judicial proceedings of
one State in another, so as to promote uniformity, as well as
certainty, among them. (See Story on the Constitution, sec. 1307.)
This author adds:
``It is, therefore [a foreign judgment], put upon the same footing as
a domestic judgment; but this does not prevent an inquiry into the
jurisdiction of the court in which the original judgment was given to
pronounce it or the right of the State itself to exercise authority
over the persons or the subject matter. We think it can not be assumed
under this clause of the Constitution, to hold full faith must be given
to the opinion of every State judge on mere matters of law; but to the
record the judicial proceedings of a State court, whether made as the
result of right rulings or wrong, that, where properly authenticated,
such record would be held conclusive as to its own identity.''
Judge Cooley announces the law to be in this country, that if the
person receiving the highest number of votes is ineligible, the
opposing candidate is not elected and the election fails.
The report then cites the Congressional cases supporting this view.
The view taken of the case by Mr. Rowell and his minority associates
did not render a decision of the question necessary; but Mr. J. H.
O'Neill, of Massachusetts, filed individual views:
That the qualification of a Member of Congress--his eligibility--
depends upon the Federal Constitution and the laws of Congress passed
in pursuance thereof.
That the election of a Member depends upon the voters of the district
he represents, expressing themselves in the way prescribed by the
constitution and laws of the State from which he comes. To ascertain
whether eligible or not, we look to the Constitution and laws of the
United States; to ascertain whether elected or not, we look to the
constitution and laws of the State whose electors send him to Congress.
Recognizing the first proposition, the majority of the committee have
found and report that the contestee does not possess the qualifications
prescribed. Disregarding, however, the second proposition, the
committee report adversely to the right of contestant to the place to
which, under the laws of Indiana, and by the voice of the electors of
the Twelfth Congressional district of said State, legally expressed, he
was duly elected. In that State the rule of law, as held by a long and
unbroken line of authority, by the courts of last resort and in the
halls of the legislature, the principle is well settled that every vote
given by an elector to an ineligible candidate counts for naught; that
such vote is ineffectual to elect or to defeat. In one of the early
cases in that State, the supreme court of the State say:
``While it is true that the votes of the majority should rule, the
tenable ground appears to be that if the majority should vote for one
wholly incapable of taking the office, having notice of such
incapacity, or should perversely refuse or negligently fail to express
their choice, those, although in a minority, who should legitimately
choose one eligible to the position should be heeded. * * *
``True, by the constitution and laws of the State, the voice of the
majority controls our elections, but that voice must be
constitutionally and legally expressed. Even a majority should not
nullify a provision of the constitution or be permitted at will to
disregard the law. In this is the strength and beauty of our
institutions. (Gulick v. New, 14 Indiana, p. 93.)''
In the case Gulick v. New, supra, the court places the impotency of
the votes upon the question of notice to the voter of the ineligibility
of the candidate for whom the voter casts his ballot. Later cases refer
to want of force in the vote without referring to the question of
notice. But without referring to those cases, it is here asserted
that--
``The legal presumption in favor of the nationality of birth, or
domicile of origin, continues until proof of change; that in the
absence of proof that an alien has become a citizen of the United
States his original status is presumed to continue. (Howenstine v.
Lynham, 100 U. S. Reports, p. 483.)
``A disqualification patent or notorious at once causes the votes
given for the candidate laboring under the disqualification to be
thrown away. The same would probably be held to be the case where the
electors had the means of knowledge or might have ascertained the facts
had they desired. (Grant on Corporations, p. 208.)''
That contestee was of foreign birth, like most foreigners professed
of himself, would conclusively show. Then, if alienage is presumed to
continue until citizenship is proven, those who voted for him must be
presumed to have known. Everyone is bound to know that seven years'
citizenship is required of a Member of Congress.
Sec. 425
425. The case of Lowry v. White, continued.
In the record of an election case allegations and testimony relating
to nominations are out of order.
Personalities and, generally, also digressions on local politics are
irrelevant to the record of an election case.
Motions to suppress testimony in an election case already printed
under the law were disregarded by the Elections Committee.
An Elections Committee has ruled that the determination of result
contemplated by the law governing notice of contest is not reached
until returns have been compared or certified as required by law.
The Committee on Elections has apparently acquiesced in the view that
a contestant, while bringing into issue no ground that could possibly
give him the seat, is yet to be treated as a memorialist, entitled to
have the question determined.
Form of resolutions for unseating a Member for disqualifications.
The majority report determines certain preliminary questions,
incidental in nature:
(a) All of the allegations and testimony relating to the nomination
of contestant are foreign to the merits of the case, and are not
considered by the committee.
(b) A large portion of the printed record in the case is needlessly
encumbered with such testimony, ramifying and shaping itself into a
multitude of phases with reference to State, county, and Congressional
politics. The record is also disfigured with acrimonious personalities
between contestant and contestee, that were brought into the testimony
and were developed by way of objections to evidence in taking the
same--all of which your committee dismiss from consideration as
irrelevant to the legitimate issues involved.
(c) Motions were filed during the consideration of the case by the
committee, by both contestant and contestee, to suppress certain
portions of the testimony, but your committee could see no practical
purpose in entertaining the same otherwise than is involved in the
general consideration of the case, in view of the act of Congress of
March 2, 1887, under which the record has been printed and distributed,
as required by law, prior to the hearing of the case.
Under the provisions of that statute both parties could have appeared
within twenty days, on the notice of the Clerk of the House, and have
agreed upon portions of the record to be printed, or should they have
failed to agree, it was the duty of the Clerk of the House to decide
what portions should be printed.
It is to be hoped this provision of the law will be observed in
future, as it will greatly expedite a consideration of contested cases,
and relieve both the committee and the House of a great deal of
needless labor in investigating the same.
(d) The Revised Statutes of the United States, 1878, section 105,
require notice of contest to be given within thirty days after the
result of an election shall have been determined.
Service was had on the contestee on the 20th day of December, 1886.
The contestant swears that he visited the office of the secretary of
state of Indiana as late as the 23d or 24th of November, 1886, and that
he was informed by that official that the election returns of the
district in question had not then been compared or certified as
required by law. (See Lowry's testimony, Record, 409.) This is not
denied; consequently, in legal contemplation, the result had not been
determined, and the contestant was clearly within the statute requiring
him to give thirty days' notice.
The minority views also discuss a question which by implication the
majority of the committee may also have approved, since they in fact
did not favor dismissing the contest:
(e) It is urged by contestee that inasmuch as contestant abandoned
the only ground of contest which could give him any standing as a
contestant for the seat occupied by contestee, the whole pro-
Sec. 426
ceeding ought to be dismissed. That even admitting the ineligibility of
contestee as charged, contestant has no standing in the case, because,
having been beaten at the polls, he can not under any proper view of
the case succeed to the seat from which he seeks to oust the sitting
Member.
That this would be the rule in judicial proceedings will not be
denied. But inasmuch as all the papers in the case were before the
committee for their consideration, we are inclined to treat the
contestant as a memorialist, and to examine the questions presented for
the purpose of reporting our conclusions to the House.
In accordance with their conclusions, the majority proposed two
resolutions:
Resolved, first, That James R. White, not having been a citizen of
the United States for seven years previous to the 4th of March, 1887,
is not entitled to retain his seat in the Fiftieth Congress of the
United States from the Twelfth Congressional district of Indiana.
Resolved, second, That Robert Lowry, not having received a majority
of the votes cast for Representative in the Fiftieth Congress from the
Twelfth Congressional district of Indiana, is not entitled to a seat
therein as such Representative.
The minority proposed this resolution:
Resolved, That James B. White was duly elected a Representative to
the Fiftieth Congress from the Twelfth Congressional district of
Indiana, and is entitled to retain his seat.
The report was debated at length on February 2, 4, and 6,\1\ and on
the latter day the resolution of the minority was substituted for that
of the majority by a vote of yeas 186, nays 105. Then the resolutions
of the majority were agreed to as amended.\2\ So the recommendations of
the majority of the committee were reversed, and sitting Member
retained his seat.
426. The case relating to the qualifications of Anthony Michalek, of
Illinois, in the Fifty-ninth Congress.
The House considered a protest as to the qualifications of a Member
after he had taken the oath without objection.
Form of protest as to the qualifications of a Member.
The House referred a question as to the qualifications of a Member to
an elections committee instead of to a select committee.
On December 4, 1905,\3\ at the time of the organization of the House,
the name of Anthony Michalek appeared on the Clerk's roll among the
Members-elect from Illinois. He voted for Speaker and was sworn in
without objection.
On December 5,\4\ Mr. Henry T. Rainey, of Illinois, claiming the
floor for a question of privilege, and being recognized, presented the
following protest:
To the honorable the House of Representatives of the fifty-ninth
Congress of the United States of America:
The undersigned citizens and legal voters of the Fifth Congressional
district of Illinois respectfully represent unto your honorable body
that at the last Congressional election held in said district one
Anthony Michalek was elected as a Member of the Fifty-ninth Congress;
that since said election it has come to the notice of the undersigned
that said Anthony Michalek was not at the time he was elected nor is he
now a citizen of the United States.
Wherefore we protest against being represented in your honorable body
by one who has not deemed it worth while to become a citizen of the
United States, and respectfully petition your honorable body
-----------------------------------------------------------------------
\1\ Record, pp. 915, 947, 988-1001; Journal, pp. 684-686.
\2\ The Journal omits to notice that the resolutions as amended were
agreed to, but the Record (p. 1001) and subsequent proceedings show
that the question was in fact put and agreed to.
\3\ First session Fifty-ninth Congress, Journal, p. 3; Record, p. 39.
\4\ Journal, p. 68; Record, p. 108.
Sec. 426
to cause an investigation to be made, and if it is found that said
Michalek is not a citizen of the United States to take such action in
the premises as to your honorable body shall seem fit and proper.
And in support of this petition we herewith submit the affidavits of
Julius M. Kahn, Enoch P. Morgan, and Joseph Pejsar, which affidavits
are made part of this petition, and we offer to produce other and
additional testimony on any hearing ordered by your honorable body.
And we will ever pray.
State of Illinois, County of Cook, ss:
Julius M. Kahn, being first duly sworn, on oath deposes and says that
he is an attorney at law, and resides at 729 East Fiftieth place, in
the city of Chicago; that he is a native-born citizen of the United
States, and that he is thoroughly familiar with the records of the
courts of Cook County, in the State of Illinois, and a competent person
to examine the records of the courts; that in said county there are
four courts which have the power to naturalize citizens, namely: The
circuit court, superior court, county court, and criminal court, and no
other court in said Cook County has such power, and that no other court
had such power for more than thirty years last past; that he has
carefully examined the records of each and every one of said four
courts for the purpose of ascertaining whether one Vaclav Michalek ever
became a citizen of the United States; that he carefully examined the
records beginning with the year 1879 and ending with the year 1890,
both inclusive, and that there is no record in any of said courts
showing that one Vaclav Michalek became a naturalized citizen during
said period of time, and that during all of said period of time no one
by the name of Michalek became a citizen in said Cook County, except
one Michael Michalek, who became a citizen on March 26, 1888, by
naturalization and judgment of the superior court of Cook County; that
said Michael Michalek, as appears from said records, was a native of
Germany, and not a native of Bohemia, Austria, and that he took the
oath renouncing allegiance to the Emperor of Germany.
And this affiant says that after a thorough investigation of the
records he finds that Vaclav Michalek was never naturalized in the
county of Cook during said period of time.
Affiant further says that under the election laws of the State of
Illinois each voter must register and answer under oath certain
questions in regard to his qualifications as a voter, and that the
record of each voter's answers is kept; that this affiant examined the
records so kept in the election commissioners' office in the city of
Chicago, County of Cook, and State of Illinois, and finds that Anthony
Michalek, Congressman-elect from the Fifth Illinois district,
registered in the Eighth precinct of the Eleventh ward in said city in
the year 1905, and that his sworn answers to questions propounded were
that he, Anthony Michalek, was born in Bohemia, and that he became a
citizen of the United States by act of Congress.
And further affiant saith not.
Julius M. Kahn.
Subscribed and sworn to before me this 18th day of November, A. D.
1905.
[Seal.]
Edw. R. Newmann,
Notary Public.
State of Illinois, County of Cook, ss:
Josef Pejsar, being first duly sworn, on oath deposes and says that
he is, and for about thirty-five years last past has been, a citizen of
the United States; that he has resided in the city of Chicago for about
thirty-nine years last past; that he is a householder and resides, and
has resided for more than ten years last past, at No. 3437 Lowe avenue,
in the city of Chicago; that he is acquainted with Anthony Michalek,
Congressman-elect from the Fifth Congressional district; that the name
of the father of said Congressman-elect was Vaclav Michalek; that said
Vaclav Michalek was by occupation a brewer; that this affiant was also
by occupation a brewer; that both of them were natives of Bohemia,
Austria, and that both of them were employed by the Seipp Brewing
Company, in the city of Chicago, and that this affiant was well
acquainted with said Vaclav Michalek, father of said Congressman-elect;
that said Vaclav Michalek arrived in this country in 1879 as an
immigrant from Bohemia, and brought said Anthony Michalek-, his son,
with him; that he came direct to Chicago, and remained here until the
time of his death; that he died in the year 1883, and that he had not
been fully five years in this country at the time of his death, and
that at the time of his death the said Vaclav Michalek was at least 40
years of age; and that the said Vaclav Michalek had never been in the
United States prior to the year 1879. That at an election held in the
city of Chicago a few months preceeding the death
Sec. 426
of said Vaclav Michalek this affiant had a conversation with said
Vaclav Michalek in the Bohemian language, in which conversation this
affiant desired said Michalek to become interested in the coming
election, and asked him to become a citizen of the United States and
make application for his first papers; but that said Vaclav Michalek
answered that elections could get along without him, and that he was
not and did not care to become a citizen of the United States for some
time to come.
And further affiant saith not.
Josef Pejsar.
Subscribed and sworn to before me this 21st day of November, A. D.
1905.
[Seal.]
Alfar M. Eberhardt, Notary Public.
State of Illinois, County of Cook, ss:
Matous Sedlacek, being fast duly sworn, on oath deposes and says that
he is by occupation a brewer; that he is a citizen of the United
States, and resides at 630 West Eighteenth Street, in the city of
Chicago, Cook County, Ill., and that he has been a resident of the city
of Chicago for a period of not less than thirty-four years; that he was
born in Bohemia, and speaks the Bohemian language.
Affiant further says that he became acquainted with one Vaclav
Michalek about the time and during the same year that said Vaclav
Michalek arrived in this country as an immigrant from Bohemia; that
said Vaclav Michalek came here with his family, and was the father of
Anthony Michalek, Congressman-elect from the Fifth Illinois district;
that said Vaclav Michalek worked during his lifetime at Seipp Brewing
Company and at Hauck's malt house; that for a period of about three
years the said Vaclav Michalek and this affiant worked together and
often conversed with each other in the Bohemian language.
Affiant further says that he well remembers the time of the death of
said Vaclav Michalek, and that between the time of the arrival of said
Vaclav Michalek as an immigrant in this country and the time of his
death less than five (5) years elapsed.
And further affiant saith not.
Matous Sedlacek.
Subscribed and sworn to before me this 21st day of November, A. D.
1905.
[Seal.]
Alfar M. Eberhardt, Notary Public.
State of Illinois, County of Cook, ss:
Enoch P. Morgan, being first duly sworn, on oath deposes and says
that he resides at 495 South Hermitage Avenue, in the city of Chicago,
Ill.; that he is, and for the past seventeen years has been, a citizen
of the United States, and for more than thirteen years last past has
been a resident of the city of Chicago; that he is a resident of the
Fifth Congressional district and is well acquainted with Anthony
Michalek, Congressman-elect from said district; that during the last
Presidential campaign this affiant was one of the Republican campaign
speakers in the employ of the national committee; that said Anthony
Michalek informed this affiant that he, Michalek, was born in Bohemia,
and that his father emigrated to this country and brought said Anthony
with him when said Anthony was a boy of tender years; that he, said
Anthony Michalek, was not a citizen of the United States; that the said
conversation took place at the time when said Anthony Michalek was a
candidate for Congress at the last national election; that this affiant
advised him that it was his duty to at once apply to become a citizen
of the United States, and told him that he could obtain his papers
easily, because he came to this country when he was under the age of 18
years; and that this affiant informed him that he should not under any
circumstances omit to perform that duty at once, or that he would
surely get himself in trouble if he voted without being a citizen; that
said Anthony Michalek replied that nobody would know anyway, and that
it would not make any difference; that one of his relations, who was
also not a citizen, had held office, and that he saw no reason why he
could not hold office without going to the trouble of taking out his
papers, and that nobody would know the difference.
And further affiant saith not.
Enoch P. Morgan.
Subscribed and sworn to before me this 18th day of November, A. D.
1905.
[Seal.]
Julius M. Kahn, Notary Public.
Sec. 427
The memorial having been read, Mr. Rainey offered the following:
Resolved, That the protest of citizens of the Fifth Congressional
district of Illinois against being represented in Congress by Anthony
Michalek, declared by them to be an alien, be referred to a special
committee of five Members of this House, to be appointed by the
Speaker, for immediate investigation.
To this Mr. James R. Mann, of Illinois, offered an amendment as
follows:
Strike out of the resolution the words ``a special committee of five
Members of this House, to be appointed by the Speaker, for immediate
investigation'' and insert ``be referred by the Speaker to the
appropriate committee of this House when appointed.''
Debate followed as to the propriety of the consideration of the
subject by an elections committee instead of a special committee,
during which Mr. Marlin E. Olmsted, of Pennsylvania, cited the
provisions of Rule XI giving the Elections Committees the right to
report at any time on the right of a Member to a seat, and Mr. Mann
recalled the fact that in the First Congress a question as to
qualifications was passed on by the Elections Committee.
After debate the amendment was agreed to, yeas 178, nays 93. Then the
resolution as amended was agreed to.
427. The case of Anthony Michalek, continued.
The House authorized its committee to take testimony in a case
wherein the qualifications of a Member were impeached.
As to the degree of testimony required to put the burden of proof on
a Member whose status as a citizen was impeached.
On January 29, 1906,\1\ Mr. H. Olin Young, of Michigan, from the
Committee on Elections No. 1, submitted the following report:
The Committee on Elections No. 1, to whom was referred the protest of
citizens of the Fifth Congressional district of Illinois, against the
right of Hon. Anthony Michalek, elected as a Member of the House of
Representatives from that district to the Fifty-ninth Congress, to a
seat in the House, on the ground that he was not at the time he was
elected a citizen of the United States, beg leave to report and
recommend the passage of the following resolution:
``Whereas, there is now pending before the House of Representatives a
protest alleging that the Hon. Anthony Michalek was not at the time of
his election as a Member of this House, and is not now, a citizen of
the United States, and therefore is disqualified to be or remain a
Member of this House, which protest has been referred to the Committee
on Elections No. 1 for investigation: Therefore
``Resolved by the House of Representatives, That said committee be
empowered to take such testimony as it deems necessary to a
determination of said matter, either before said committee or before a
subcommittee thereof or a member of said Committee on Elections No. 1
appointed therefor, or any other person selected by said committee for
such purpose, and that the time, place, and manner of taking,
certifying, and returning said testimony be determined by said
committee, and that the expenses incurred in taking said testimony be
paid from the contingent fund of the House upon the order of said
Committee on Elections No. 1.''
The resolution was agreed to by the House.
On March 6,\2\ Mr. James R. Mann, of Illinois, submitted the
unanimous report of the committee, which recited the petition
protesting against the seating of Mr. Michalek, and said:
The petition purported to be signed by John F. Joyce, 696 West Taylor
Street, Chicago, and 124 other persons.
-----------------------------------------------------------------------
\1\ Journal, p. 356; Record, p. 1698.
\2\ House Report No. 2117.
Sec. 427
The petition having been referred to this committee, the House, on
the 29th day of January, A. D. 1906, passed a resolution authorizing
this committee to take testimony in order to determine the right of Mr.
Michalek to his seat.
The original petition was supported by the affidavits of Julius M.
Kahn, Joseph Pejsar, Matous Sedlacek, and Enoch P. Morgan, which were
attached to the petition and formed a part thereof, as presented to the
House. The affidavit of Julius M. Kahn did not, on its face, make any
case against Mr. Michalek, because it showed that while affiant stated
he had made search of the records of certain courts in Chicago, Cook
County, Ill., to ascertain whether the father of Mr. Michalek had been
naturalized, it also showed that he had made no search for such
naturalization in either the United States district or circuit court in
Chicago, of which courts this committee necessarily takes notice.
The affidavit of Enoch P. Morgan did not make out a prima facie case
against Mr. Michalek, because affiant simply stated what, at the best,
would be a conclusion as to citizenship.
The two affidavits of Joseph Pejsar and Matous Sedlacek, however,
were to the effect that Mr. Anthony Michalek, the sitting Member, came
to this country when he was a minor, with his father, and that the
father, Vaclav Michalek, died before he had been in this country a
period of five years.
The statements in the affidavits of Sedlacek and Pejsar seem to
justify the committee in permitting the protestants to offer evidence
in support of their protest, and accordingly such evidence was taken by
a member of the committee and by direction of the committee in Chicago.
At the taking of this testimony neither Joseph Pejsar nor Matous
Sedlacek was called upon to testify, and it was then, and is now,
admitted that the affidavits of these two men were false.
At the taking of the testimony in Chicago not one of the protestants
appeared and not one of them testified.
necessity for care when charges are made against the right of a member
of congress to his seat.
The necessity for care in considering and examining a protest of this
character is well exemplified by this particular case. Here are 125
names signed to a protest and on the hearing not one of the persons
signing the protest appears to give his reasons for making the protest.
The two persons who are principally relied upon by their affidavits to
sustain the protest do not appear, and it is admitted that their
affidavits are falsehoods. By what right do these 125 men make a
statement that a Member of this House is not entitled to his seat and
then offer no proof in support of it? Were Mr. John F. Joyce and the
other signers of the protest simply dummies who were being used by
somebody else? Were they the cat's-paw to pull the chestnuts out of the
fire in the interest of someone else?
These persons have trifled with the dignity of this House. They have
not even had the manliness to come before the committee at the hearing
and state that they were deceived by the false affidavits of Pejsar and
Sedlacek. We do not wish to be understood as criticising counsel who
appeared for or in support of the position of the protestants. Counsel
in behalf of the protestants were engaged as and appeared as lawyers.
They presented their case with the utmost fairness and in a manner to
maintain their high position as leaders among the great bar at Chicago.
anthony michalek is foreign born.
It appears from the evidence in the case that Anthony Michalek, the
sitting Member, came to this country with his father, Vaclav Michalek,
and his mother, Therese Michalek, in 1878, when only a few months old.
There are five ways, in any one of which Anthony Michalek might have
become a citizen of the United States.
First. By the naturalization of his father, Vaclav Michalek, during
the minority of the son.
Second. By the naturalization of his mother, Therese Michalek, after
the death of his father, during the minority of the son.
Third. By the marriage of Therese Michalek after the death of Vaclav
Michalek to a citizen of the United States during the minority of the
son.
Fourth. By the naturalization of Anthony Michalek himself as a person
who came here under the age of 18, he having the right under the
statute to receive his final papers without taking out first papers.
Fifth. In case his father, Vaclav Michalek, took out his first papers
and then died, by compliance on
Sec. 427
the part of Anthony Michalek with section 2168 of the Revised Statutes,
providing that where a person takes out his first papers and dies his
widow and minor children shall be considered as citizens and be
entitled to all the rights and privileges as such upon taking the oaths
required by law.
It will be seen, therefore, that the sitting Member might have become
a citizen by reason of the naturalization of his father or of his
mother or of himself. In order to make a prima facie case against him
by an examination of the records, it would seem to require an
examination as to all three of these persons. There are at least six
courts in the city of Chicago, where these persons lived from the time
they came into the country, which are authorized by law to issue
naturalization papers. These are four State courts and two Federal
courts.
To make a prima facie case against the sitting Member it would be
necessary to examine the records in each of these six courts for
naturalization of Vaclav Michalek, Therese Michalek, and Anthony
Michalek. This would make at least eighteen separate examinations of
records. As a matter of fact, counsel for protestants offered testimony
concerning the naturalization of Vaclav Michalek, the father, in the
four State courts. No testimony was offered concerning the
naturalization of Vaclav Michalek in the two Federal courts and no
testimony was offered as to the naturalization of Therese Michalek or
Anthony Michalek in any of the six courts.
The purpose of offering testimony at all concerning records of the
courts was to shift the burden of proof from the protestants to the
sitting Member. If any testimony be necessary concerning the records in
any courts, in order to shift the burden of proof, then it would seem
that testimony ought to be offered as to all of the courts, and if it
be necessary to offer testimony concerning the naturalization of the
father, Vaclav Michalek, it would seem to be also necessary to offer
testimony concerning the records as to Anthony Michalek, the sitting
Member himself, as well as his mother, Therese Michalek, if it be
desired to shift the burden of proof.
While there are six courts in Chicago having the power to naturalize,
the law also provides that any person living in Chicago may apply to
any court within the State for naturalization.
We think it might be fairly well contended that proof that neither
Vaclav Michalek, the father, Therese Michalek, the mother, or Anthony
Michalek, the son, was naturalized in any court in Cook County would
shift the burden of proof to the sitting Member without requiring the
protestants to offer proof as to the many courts in Illinois outside of
Cook County, though we do not wish to be considered as expressing any
decided opinion upon that question, it being wholly unnecessary for the
decision of this case.
It is perfectly manifest in our opinion that if evidence concerning
the records of any of the courts as to the naturalization of either the
father, the mother, or the son be necessary to effect the shifting of
the burden of proof, then it is necessary to offer evidence concerning
all of these local courts.
The evidence which was produced relating to the naturalization of
Vaclav Michalek in the State courts of Cook County was mainly evidence
relating to an examination of the indexes of naturalization and not to
an examination of either the actual records or the original
applications. Counsel for protestants seemed to admit that an
examination of the indexes (not required by law to be kept) might be
insufficient to prove the contents of the records, and offered upon the
argument of this case in committee, and after the hearing and testimony
had been completed, affidavits of various persons connected with the
offices of the clerks of the State courts in Chicago concerning the
records themselves.
Without expressing any opinion as to the right of the protestants to
have these affidavits admitted in evidence without an opportunity on
the part of the sitting Member to a cross-examination of the witnesses,
we have considered the affidavits as evidence in the case, inasmuch as
giving them the weight of testimony has not resulted in detriment to
the sitting Member, who was deprived of the opportunity of cross-
examination.
The evidence in this case shows that the condition of the
naturalization papers and records in Cook County is not very
satisfactory; that the indexes have many mistakes in them; that all the
original applications for naturalization have not been entered of
record as required by the statute, and that the naturalization papers
and records have not been kept with that degree of care and accuracy
which is presumed to be used in the keeping of ordinary court records
and documents. It is not likely that the condition of the
naturalization records in Cook County is different from the
naturalization records in other large cities. It is well known, and the
evidence in this case disclosed the fact, that naturalization of
foreign-born persons is often carried on at night, when applicants
appear in large numbers and at the suggestion and expense of political
committees. The names of the applicants are writ-
Sec. 427
ten in the body of the application blanks by the clerks of the courts
either from the signature of the applicants or from the pronunciation
of their names by themselves. It is perfectly manifest to everyone that
under such circumstances many errors creep into the names as written in
the body of the applications and afterwards into the records.
In the affidavits filed with the protest in this case the name of
Pejsar is not written, where he signs the affidavit, in the same manner
as it is written in the body of the affidavit, nor would it be possible
for the writer of this report to definitely state from his signature
what his name is. The same is true also of the adaffivit and name of
Sedlacek. There are a number of signatures attached to the protest
presented to the House which it is not possible for a stranger to
accurately read.
The Bohemian, Polish, and Russian names are usually not familiar to
the average clerk of the court. He does not quickly read the name
correctly when written by the applicant in his foreign handwriting.
no prima facie case made by protestants.
We are of the opinion that the protestants have not made a prima
facie case against Anthony Michalek, the sitting Member, by the
evidence offered in reference to the naturalization records in Cook
County. We are further of the opinion that the evidence of Enoch P.
Morgan does not tend to make a prima facie case against Mr. Michalek.
The testimony of Mr. Morgan bears upon its face so many evidences of
self-contradiction that it is to be looked at with some careful
scrutiny before it is accepted as correct. But, reduced to a few words,
the evidence of Mr. Morgan, Mrs. Morgan, and their son is to the effect
that Mr. Morgan, prior to the election, believed the sitting Member
ought to take out naturalization papers himself, on the theory that he
could not take a seat in Congress unless he had received a
naturalization paper declaring him to be a citizen. It seems evident to
us that, even if the conversations as narrated by the Morgans took
place, there was a misunderstanding of the meaning of the words
``citizen'' and ``native born.'' When, according to Morgan, he asked
Mr. Michalek if he was a citizen, and Michalek said he was born in
Bohemia, and Morgan told Michalek that he must take out his papers and
become a citizen and Michalek ``laughed,'' Morgan thought Michalek must
take out citizenship papers in person before he could be elected to
Congress, and Michalek thought that Morgan believed a man could not be
elected to Congress who was foreign born and not native born, and that
was not worth discussing.
michalek is a citizen and eligible for membership in the house.
We find from the evidence in the case, however, that the sitting
Member, Anthony Michalek, is and has been for more years than required
by the Constitution a citizen of the United States; that the Michalek
family came to this country in 1878; that while in this country the
father was known as by his Bohemian friends as Waclav or Vaclav
Michalek, and by his German friends as Wenzel or Wencl Michalek; that
on the 29th day of October, 1884, he applied for and received his first
citizenship papers in the county court of Cook County under the name of
Wenzl Michalek, as written in the body of the declaration, or Wenel
Michalek, as written in the signature; that on August 12, 1885, he made
a contract for the purchase of a lot in Chicago, in which contract he
was described in the body of the contract as Wenzel Michalek, and which
contract he signed as Waclav Michalek; that on March 12, 1887, he made
his application for final naturalization in the superior court of Cook
County, and by judgment of that court became a naturalized citizen of
the United States under the name of Vaclav Michal; that shortly after
the issuance of the naturalization papers on March 12, 1887, to Vaclav
Michal, the father of the sitting Member, while living on De Koven
street in Chicago, voted at the Chicago city election in April, 1887,
and that he also voted at the fall election of 1887 while living at 79
Liberty street, to which place he had meanwhile moved with his family.
The mother of the sitting Member, after the death of his father, in
February, 1898, was married in Chicago to a man who was presumably then
a citizen.
conclusion reached from protestants' testimony.
The foregoing statements in reference to the naturalization of
Anthony Michalek, the sitting Member, by reason of the naturalization
of his father and his mother, are based upon the testimony of witnesses
called in behalf of protestants.
Sec. 428
additional testimony.
The chief witness for the protestants was Mr. Enoch P. Morgan. Mr.
Morgan testified that during the national campaign of 1904 he was in
the employ of the Republican national campaign committee as a speaker,
and that during the campaign he had several conversations with Hon.
James A. Tawney, now chairman of the Committee on Appropriations of the
House of Representatives, who was in charge of the speakers' bureau of
the Republican national committee, and that he informed Mr. Tawney that
Mr. Michalek was not a citizen of the United States.
Mr. Tawney has stated to the committee that no such statement was
made to him by Mr. Morgan and Mr. Tawney contradicts Mr. Morgan as to
various other statements which Mr. Morgan claims he made to Mr. Tawney.
Your committee is forced to the conclusion that Mr. Morgan in his
testimony is somewhat mistaken in his statement of facts.
testimony of anthony michalek, the sitting member.
Mr. Michalek requested that he might appear before the committee and
make a brief statement as to his position and his claims. Mr. Michalek
stated to your committee, under oath, that he was born in Bohemia; that
he came to this country with his parents, Vaclav Michalek and Therese
Michalek, while an infant in arms that his father died when he was 9
years of age; that he had been informed by his mother and older
brothers that his father had become a naturalized citizen and that he
grew up in that belief, and immediately upon attaining the age of 21 he
registered as a voter in the city of Chicago and has since then always
maintained and exercised his right to register and vote; that he has
believed for many years and still believes himself to be a citizen of
the United States by reason of the naturalization of his father.
conclusions.
There never was any proper justification for the protest and charges
filed against Mr. Michalek. The persons making the protest did so
without knowledge and without evidence. The charges were recklessly
made and untruthfully made. They were based upon false affidavits.
Proof in the case offered by the protestants makes out a case for the
sitting Member instead of the protestants.
sitting member not called upon to answer the charges.
While the committee, at the request of Mr. Michalek, permitted him to
make a brief statement to the committee, yet the committee has not been
of the opinion that any prima facie case was made against Mr. Michalek,
and hence has been of the opinion that he should not be put to the
trouble or expense of proving by witnesses introduced in his behalf his
title to citizenship. Your committee is of the opinion that when
charges affecting the eligibility of a Member of Congress to his seat
are made, some proof should be offered in their support before putting
the sitting Member to the expense and the burden of making a defense.
The committee accordingly reported the following resolution, which
was, on March 6,\1\ agreed to by the House without division:
Resolved, That Anthony Michalek, at the time of his election as a
Member of Congress from the Fifth Congressional district of Illinois
had attained the age of 25 years, and had then been for more than seven
years a citizen of the United States, and was then an inhabitant of the
State of Illinois, in which he was elected, and that he was elected a
Member of the Fifty-ninth Congress from the Fifth Congressional
district of the State of Illinois, and is entitled to retain his seat
therein.
428. In 1794 the Senate decided that Albert Gallatin was
disqualified, not having been a citizen nine years, although he had
served in the war of independence and was a resident of the country
when the Constitution was formed.
The Senate by majority vote unseated Albert Gallatin for
disqualification after he had taken the oath.
-----------------------------------------------------------------------
\1\ Journal, p. 600; Record, p. 3399.
Sec. 429
On February 28, 1794,\1\ the Senate, by a vote of yeas 14, nays 12,
voted that the election of Albert Gallatin (who had already been sworn
in and was acting as a Senator)\2\ to be a Senator of the United States
was void, he not having been a citizen of the United States the term of
years (nine years) required as a qualification.
It appeared that Mr. Gallatin, who was born at Geneva, January 29,
1761, arrived in Boston July 14, 1780. In October, 1780, he settled at
Machias, Me., and resided there a year, furnishing funds for and
several times acting as a volunteer with the troops there. In the
spring of 1782 he was chosen an instructor at Harvard College,
remaining there a year. In July, 1783, he removed to Pennsylvania, and
in November of the same year proceeded to Virginia, where he purchased
considerable land at two different periods. In October, 1785, he took
an oath of allegiance to Virginia. In December, 1785, he purchased a
plantation in Pennsylvania, where he resided up to the date of these
proceedings. In October, 1789, he was elected a member of the
Pennsylvania constitutional convention, and in October of the years
1790, 1791, and 1792 was elected member of the State legislature. On
February 28, 1793, he was chosen Senator of the United States.
Mr. Gallatin contended that every man who took part in the Revolution
was a citizen according to the great law of reason and nature, and when
afterwards positive laws were made they were retrospective in regard to
persons in this predicament. He was one of the people who formed the
Constitution, being of the body of people who were citizens mutually
before the Constitution was ratified.
In opposition it was denied that he was one of the mass of citizens
at the time of the adoption of the Constitution; and it was argued that
the oath taken in Virginia did not make him a citizen of that State
because the Virginia law prescribed other formalities and
qualifications which Mr. Gallatin had not satisfied. In Massachusetts,
also, certain requirements existed which he had not conformed to. These
provisions of the laws of Virginia and Massachusetts were cited as
insurmountable barriers in the way of Mr. Gallatin's occupation of the
seat.
429. The Senate decided in 1849 that James Shields was disqualified
to retain his seat, not having been a citizen of the United States for
the required time.
Charges that a Senator-elect was disqualified did not avail to
prevent his being sworn in by virtue of his prima facie right.
A Senator was unseated for disqualification after he had been seated
on his prima facie right.
On March 5, 1849,\3\ at the special session of the Senate, Mr. James
Shields, of Illinois, appeared for the purpose of being qualified.
Thereupon a resolution was proposed that his credentials be referred
to the Committee on the Judiciary, with instructions to inquire into
the eligibility of Mr. Shields to a seat in the Senate.
-----------------------------------------------------------------------
\1\ First session Third Congress, Contested Elections in Congress
from 1789 to 1834, p.851. Journal of Senate, pp. 18, 29, 34, 37, 39,
40.
\2\ Journal, pp. 3, 20.
\3\ Second session Thirtieth Congress, Journal of the Senate, pp.
353, 357; Globe, Appendix, pp.327-329.
Sec. 430
Mr. Stephen A. Douglas, of Illinois, asked that the oath be
administered to Mr. Shields, leaving the question as to his
qualifications to be decided later. Mr. Douglas contended that Mr.
Shields had a prima facie right to the seat, and that in similar cases
the oath had been administered, as in the case of Mr. Gallatin, of
Pennsylvania, Mr. Smith of South Carolina, and Mr. Rich of Michigan. In
a case where the governor of Connecticut had appointed to a vacancy
which he had no authority to fill, this fact appeared on the face of
the credentials, and the appointee was not sworn in. But in the pending
case the certificate showed the election, and Mr. Shields was entitled
to the seat until his qualifications were determined.
Mr. John MacP. Berrien, of Georgia, made the argument that the
credentials were prima facie evidence of the election, but not of the
qualification.
The Senate, without division, agreed to a motion submitted by Mr.
Douglas that Mr. Shields be sworn in, and the oath was administered to
him.
The Senate then referred to a select committee the subject of the
eligibility of Mr. Shields.
On March 13 \1\ the committee reported, and the Senate agreed on
March 15, after long debate, to a resolution declaring that the
election of Mr. Shields ``was void, he not having been a citizen of the
United States the term of years required as a qualification to be a
Senator of the United States at the commencement of the term for which
he was elected.''
This resolution was adopted without division, it being considered
evidently that a majority vote only was required for the passage of the
resolution.
430. In 1870 a question was raised as to the citizenship of Senator
elect H. R. Revels, but he was seated, the Senate declining to postpone
the administration of the oath in order to investigate the case.
In reconstruction days the Senate deemed valid credentials signed by
a provisional military governor.
On February 23, 1870,\2\ Mr. Henry Wilson, of Massachusetts,
presented in the Senate the credentials of H. R. Revels, Senator-elect
from Mississippi. These credentials were signed by ``Adelbert Ames,
brevet major-general, United States Army, provisional governor of
Mississippi,'' attested by ``James Lynch, secretary of state'' and
under the great seal of the State. Moreover--
Mr. Wilson presented a certified extract from the proceedings of the
house of representatives of the State of Mississippi; also a certified
extract from the proceedings of the senate and house of representatives
of the State of Mississippi relative to the election of H. R. Revels as
a Senator in Congress.
Mr. Willard Saulsbury, of Delaware, objected that the credentials
were irregular, that a ``provisional governor'' was unknown to the
Constitution, and that the interference of an officer in the Army
showed that a republican form of government was not existing in
Mississippi.
It was urged in support of the credential that it was otherwise
proper in form under the seal of the State, and that it had been
frequent when new States were admitted for Senators to bear
certificates technically irregular as to signature, since
-----------------------------------------------------------------------
\1\ Senate Journal, pp. 361, 365, 366; Globe, Appendix, pp. 332-351;
1 Bartlett, p. 606.
\2\ Election Cases, Senate Document No. 11, special session Fifty-
eighth Congress, p. 370; second session Forty-first Congress, Globe, p.
1503-1506.
Sec. 430
the certificates were frequently signed by a governor-elect, as was the
case with the first Nebraska credentials.
The Senate voted, without division, to receive the certificate.
Thereupon Mr. John P. Stockton, of New Jersey, offered the following:
Resolved, That the credentials of Hiram R. Revels, who is now
claiming a seat in this body as a Senator-elect from the State of
Mississippi, be referred to the Committee on the Judiciary, who are
hereby requested to inquire and report whether he has been a citizen of
the United States for the period of nine years, and was an inhabitant
of the said State at the time of his alleged election in the sense
intended by the third section of the first article of the Constitution
of the United States, and whether Adelbert Ames, brevet major-general
and provisional governor of Mississippi, as appears by the credentials,
was the governor of the State of Mississippi at the time, and whether
he was an inhabitant of the said State.''
This resolution was debated long and learnedly on February 23, 24,
and 25.\1\ It appeared that Mr. Revels was partially of negro descent,
but was born free and a native of the United States. It was asserted
that he had voted in Ohio twenty years before this date. It was urged,
however, that the States might not naturalize, and that under the Dred
Scott decision a person of his descent could not have been a citizen
nine years before this date. Mr. George Vickers, of Maryland, thus
summarized the argument, speaking of the Dred Scott case:
What were some of the propositions of law decided by that tribunal?
1. That when the Constitution was adopted persons of African descent
were not regarded in any of the States as members of the community
which constituted the States, and were not numbered among its people or
citizens; consequently the special rights and immunities guaranteed to
citizens did not apply to them.
2. That no State could by any subsequent law make a foreigner or any
other description of persons citizens of the United States.
3. That a State might by its laws put a foreigner, or any other
description of persons, upon a footing with its own citizens; but that
would not make him a citizen of the United States, nor entitle him to
sue in its courts, nor to any of the privileges and immunities of a
citizen in another State.
The disqualification of the African race was as radical, fundamental,
and perfect as language could make it. This is by a coordinate
department of the Government, existing by the same Constitution as
Congress; in its origin, design, and objects as thoroughly
constitutional; in its powers and jurisdiction superior, because State
and national legislation is measured and limited by the Constitution
according to its judgment. Its decisions and decrees are as binding as
the Constitution itself.
In opposition it was urged that Mr. Revels was born in the United
States; that he never had been a slave, and did not conform to the
description of negro in the Dred Scott case; that that decision was not
authoritative. Mr. John Scott, off Pennsylvania, said: \2\
The history of the litigation that had occurred in various States,
and that finally got into the Supreme Court of the United States in the
Dred Scott case, is enough to show that a question was made as to
whether a colored man was or was not a citizen of the United States.
The decisions in Kentucky, the decisions in Connecticut, the decisions
in my own State, the discussion which took place upon the admission of
Missouri into the Union, the Dred Scott case, the universal discussion
of this question at one period in our history--these are enough to show
that the public mind was not settled upon the question. But if it was
not settled then, could it be more effectively settled than it has
been, first by the passage of the civil rights bill, and then, if that
was not sufficient as a mere act of Congress to determine the status of
citizenship in the face of a decision of the Supreme Court, surely it
will not be con-
-----------------------------------------------------------------------
\1\ Globe, pp. 1506-1514, 1542-1544, 1557-1568.
\2\ Globe, p. 1565.
Sec. 431
tended that the fourteenth constitutional amendment, declaring that all
persons born within the United States are citizens, is not sufficient
to settle it.
The civil rights bill, if its text be turned to, and the fourteenth
amendment, if its text be turned to, will be found to be both
declaratory. They do not enact that ``from henceforth all persons born
within the United States shall be citizens,'' but the present tense is
used in both: ``all persons'' ``are citizens of the United States.'' If
that be sufficient to settle the question, if that be enough as a
declaratory law to declare that all persons born within the limits of
the United States are citizens of the United States, where does this
man stand who now presents himself as Senator-elect from Mississippi?
It is urged by gentlemen on the other side that he became a citizen
only by virtue of one or the other of these enactments; but if they
turn to the history of that clause of the Constitution of the United
States on which they rely they will find that it was inserted both in
reference to Senators and to Representatives in the other House of
Congress, and also in reference to the President, because of the
apprehension that was felt of foreign influences in our Government. In
the discussion which occurred in the convention--I have it here, but
will not take the time of the Senate to read it--on fixing the
qualifications of Senators it was especially dwelt upon that the Senate
being the body which was to pass upon treaties with foreign
governments, it was particularly necessary that the period of
citizenship should be extended and made longer for a Senator than for a
Member of the House of Representatives. The discussion of Mr. Madison
in the Federalist of this clause shows that the purpose, the reason,
the intention of this clause in the Constitution of the United States
was that persons who had been born abroad should not be permitted to
become Senators until after they bad been citizens a certain length of
time. That is the reason, that is the spirit of the law; and it is a
maxim which I need not quote, that the reason ceasing the law ceases
with it.
Here, then, is a man born in the United States, not an alien, not a
foreigner, who comes here elected by a State legislature. No question
is raised as to his qualification as to age; no question is raised as
to his qualification in any other respect than as to whether he has
been a citizen of the United States for nine years. Now, even if the
doctrine contended for by the gentlemen on the other side were true,
that he was not a citizen until the time of the passage of the civil
rights bill or until the adoption of the fourteenth constitutional
amendment, still he is not within the meaning of that clause of the
Constitution which requires a man to be a citizen for nine years. The
meaning, the spirit of that was, that no man should occupy this place
who had been naturalized as a foreigner until nine years had elapsed
after his naturalization.
On February 25 \1\ the resolution of Mr. Stockton was disagreed to--
yeas 8, nays 48.
Then on the question of administering the oath to Mr. Revels there
were yeas 48, nays, 8.
Accordingly, he appeared and took the oath.
431. Congress has by law prescribed that the Delegates from certain
Territories must be citizens of the United States.--The act of May 9,
1872 (sec. 1906, Rev. Stat.), provided--
The Delegate to the House of Representatives from each of the
Territories of Washington, Idaho, and Montana must be a citizen of the
United States.\2\
432. The Maryland case of Philip B. Key in the Tenth Congress.
Philip B. Key, who had inhabited a home in Maryland a brief period
before his election, but had never been a citizen of any other State,
was held to be qualified.
Instance wherein the question of qualification was passed on after a
Member-elect had been sworn in on his prima facie showing.
-----------------------------------------------------------------------
\1\ Globe, p. 1568.
\2\ See also sections 421, 422 of this chapter.
Sec. 432
On October 26, 1807,\1\ at the beginning of the Congress, Philip B.
Key appeared as a Representative from the State of Maryland and took
the oath without question. On November 4 and December 7 \2\ memorials
were presented relating to Mx. Key's qualifications as a resident of
his district, and as an inhabitant of Maryland,\3\ and on December 7
\4\ the report found that as to residence in the district there was no
law of Maryland requiring such residence. As to his inhabitancy in the
State, the committee report facts showing that Mr. Key was a native of
Maryland and a citizen and resident of that State at the time of the
adoption of the Constitution of 1787; that he was never a citizen or
resident of any other of the United States; that in 1801 he removed
from Maryland to his house in Georgetown, about 2 miles without the
boundaries of Maryland, where he continued to reside until 1806, when,
on September 18, he removed with his family and household to a
partially completed summer home (intended for himself and not for an
overseer), which he was building on an estate in Maryland bought by him
in November, 1805, and which was part of an estate owned many years by
Mrs. Key's family. Here he was residing October 6, 1806, the date of
his election. On October 20, 1806, he removed with his family and
household to his house near Georgetown, which he lived in until July,
1807, when they returned to the Maryland house and lived in and
inhabited it until October 23, 1807. On that date they returned to the
house near Georgetown, that he might attend to his duties in Congress.
It further appeared that he had continued the practice of law in
Maryland and had declined practice in the District of Columbia; and
that in January, February, and March, 1806, he had declared that he
intended to reside in Maryland, and that he bought the land with that
intention. It was urged and admitted that the Maryland house was fitted
only for a summer residence, and was much inferior to the house near
Georgetown; and that the latter was left practically with its
furnishings complete whenever the family went to Maryland.
On January 21 and 22, 1808,\5\ the report was discussed, but was
recommitted because of allegations relating to a matter not referred to
in the report and not related to the question of inhabitancy.\6\
On March 17 and 18,\7\ the report made by the committee after
reexamination, and which was favorable to Mr. Key, was discussed, the
form of the question being a resolution as follows:
Resolved, That Philip B. Key, having the greatest number of votes,
and being qualified agreeably to the Constitution of the United States,
is entitled to his seat in this House.
A motion was made to strike out the words ``having the greatest
number of votes, and being qualified agreeably to the Constitution of
the United States,'' and a division being demanded, the words ``having
the greatest number of votes, and'' were stricken out.
-----------------------------------------------------------------------
\1\ First session Tenth Congress, Journal, pp. 2, 6.
\2\ Journal, pp. 16, 68.
\3\ Another feature of this case is considered in section 441 of this
volume.
\4\ Journal, p. 68; House Report No. 3; Annals, p. 1490.
\5\ Annals, pp. 1490, 1496.
\6\ See section 441 of this volume.
\7\ Annals, pp. 1845, 1848, 1849.
Sec. 433
The question then recurred on striking out ``being qualified
agreeably to the Constitution of the United States.''
It is inferable, although the records of debate are scanty, that the
question as to whether or not Mr. Key was a pensioner of the British
Government figured largely in this question. The House voted--yeas 79,
nays 28--to strike the words out.
<bullet> Then, on the question on agreeing to the simple amended
resolution that Mr. Key was entitled to his seat, a debate occurred,
which, as the Annals state, ``appeared to be reduced to the plain fact
of residence.'' The House finally agreed to the resolution7--yeas 57,
nays 52.
433. The election case of John Forsyth, of Georgia, in the Eighteenth
Congress.
Residence abroad in the service of the Government does not constitute
a disqualification of a Member.
On March 3, 1824,\1\ the Committee on Elections reported on the case
of John Forsyth, of Georgia, that Mr. Forsyth was elected a Member of
the present Congress during his residence near the court of Spain, as
minister plenipotentiary of the United States. The committee were of
the opinion that there was nothing in Mr. Forsyth's case which
disqualified him from holding a seat in the House. The capacity in
which he acted excluded the idea that, by performing his duty abroad,
he ceased to be an inhabitant of the United States. And, if so,
inasmuch as he had no inhabitancy in any other part of the Union than
Georgia, he must be considered in the same situation as before the
acceptance of the appointment.
Therefore the committee asked leave to be discharged from the further
consideration of the subject.
This report was pending in Committee of the Whole at the time of the
consideration of Mr. Bailey's case, and on March 18, after the decision
in that case, the House discharged the Committee of the Whole from
consideration of the report, and laid it on the table.
Thus Mr. Forsyth was allowed to retain his seat.
434. The election case of John Bailey, elected from Massachusetts to
the Eighteenth Congress.
One holding an office and residing with his family for a series of
years in the District of Columbia exclusively was held disqualified to
sit as a Member from the State of his citizenship.
Discussion of meaning of word ``inhabitant'' and its relation to
citizenship.
In the earlier years of the House contested election cases were
presented by petition.
On February 20, 1824,\2\ the Committee on Elections reported on the
petition of Sundry Electors v. John Bailey, of Massachusetts. This case
arose under section 2, Article 1, of the Constitution of the United
States, which provides ``that no person shall be a Representative who
shall not have attained to the age of twenty-five years, and been seven
years a citizen of the United States, and who shall not, when elected,
be an inhabitant of that State in which he shall be chosen.''
-----------------------------------------------------------------------
\1\ First session Eighteenth Congress, Contested Elections in
Congress, from 1789 to 1834, p. 497.
\2\ Ibid., p. 411.
Sec. 434
The facts were ascertained to be as follows: On October 1, 1817, Mr.
Bailey, who was then a resident of Massachusetts, was appointed a clerk
in the Department of State. He immediately repaired to Washington and
entered on the duties of his position, and continued to hold the
position and reside in Washington until October 21, 1823, when he
resigned the appointment. It did not appear that he exercised any of
the rights of citizenship in the District, and there was evidence to
show that he considered Massachusetts as his home and his residence in
Washington only temporary. It was shown that Mr. Bailey had resided in
Washington in a public hotel, with occasional absences on visits to
Massachusetts, until his marriage in Washington, at which time he took
up his residence with his wife's mother. The election at which Mr.
Bailey was chosen a Representative was held September 8, 1823, at which
time he was actually residing in Washington in his capacity as clerk in
the State Department.
The conclusions of the committee was embodied in the following:
Resolved, That John Bailey is not entitled to a seat in this House.
In support of this conclusion the committee made an elaborate report,
centering entirely around the meaning of the word ``inhabitant.''
After reviewing the circumstances attending the adoption of this
clause of the Constitution, the committee comment upon the fact that
the word ``resident'' had first been proposed, but had been put aside
for ``inhabitant,'' as being a ``stronger term, intended to express
more clearly their intention that the persons to be elected should be
completely identified with the State in which they were to be chosen.''
The word ``inhabitant'' comprehended a simple fact, locality of
existence; that of ``citizen'' a combination of civil privileges, some
of which may be enjoyed in any of the States of the Union. The word
``citizen'' might properly be construed to mean a member of a political
society, and although he might be absent for years, and cease to be an
inhabitant of its territory, his rights of citizenship might not be
thereby forfeited. The committee quote Vattel and Jacob's Law
Dictionary to show that the character of inhabitant is derived from
habitation and abode, and not from political privileges. The committee
further fortified their position by an examination of the State
constitutions and the laws of the United States.
The committee denied that the expressed intention of Mr. Bailey to
return to Massachusetts had any bearing on his status as an inhabitant.
It was true that ambassadors and other agents did not suffer impairment
of their rights as citizens by residing abroad at the government of a
foreign country. That which appertained to ministers of the Government
residing abroad could not be supposed to attach to those in subordinate
employments at home. The relations which the States bore to each other
was very different from that which the Union bore to foreign
governments. The several States by their own constitutions prescribed
the conditions by which citizens of one State should become citizens of
another, and over this subject the Government of the Union had no
control. It would, therefore, be altogether fallacious to pretend that
the bare holding of an appointment under the General Government, and
residing for years in one of the States, should preclude the holder
from being a citizen and inhabitant of such State when by its
constitution and laws
Sec. 434
he was recognized as such. Therefore, as a formal renunciation of
allegiance to the State from which he came was not necessary to being
admitted to the rights of citizenship in the State to which he went, so
the expression of an intention to return would be of no importance. At
the time of his election, and for nearly six years before, Mr. Bailey
was an inhabitant of the District of Columbia. It had been urged that
as the District belonged to the General Government, each State
possessed a part, and therefore a resident of the District was not out
of the jurisdiction of his State. But this argument would apply equally
to inhabitants of all the Territories of the United States, and was
plainly more ingenious than conclusive. Moreover, Mr. Bailey had
married a wife and established a family of his own, thereby leaving his
natural or original domicile in his father's house.
From March 18 to 26 the report was debated at length in Committee of
the Whole. In support of the committee's view the suggestion was made
that Mr. Bailey, had held another Government office before and after
his election to the House, and therefore was ineligible. But in view of
the decision in the Herrick case this point was not pressed. In
continuation of the reasoning of the report the point was made that Mr.
Bailey had no domestic establishment or estate in Massachusetts, unless
exception be made of certain books called a ``library.'' The
construction put on the word ``inhabitant'' by the various States was
not particularly pertinent, as it might import a different, sense in
different States. The construction in the case under consideration
called for common sense merely. Mr. Bailey's residence was in the
District. He was eligible for office there. If the District were
entitled to a Delegate in the House whose qualifications should be that
he should be an inhabitant of the District, he would certainly be
eligible for that place. Therefore, he must have lost his inhabitancy
in Massachusetts. So far as inhabitancy was concerned the District
stood on the same basis as the other Territories of the United States.
If in this case the inhabitancy in Massachusetts could be maintained,
so could all the emigrants to the Territories retain inhabitancy in the
States from which they came. A man in one of the States appointed to an
office in one of the Territories would be eligible to be chosen
Delegate from that Territory. Would he still retain his inhabitancy in
the State from which he came? An inhabitant of one State was deprived
of the right of being elected in all the other States. Was there any
reason why the inhabitants of the District should be more highly
favored than the inhabitants of the States? It was inevitable that in
moving from State to State political and even personal rights must
suffer modification or extinction with the changed condition of law. So
in moving to the District certain rights enjoyed in the States were
lost. If the residence of Mr. Bailey here had been transient and not
uniform; had he left a dwelling house in Massachusetts in which his
family resided a part of the year; had he left there any of the
insignia of a household establishment; there would be indication that
his domicile in Massachusetts had not been abandoned. It had been urged
that the expressed intention to return to Massachusetts should govern.
But the law ascertained intention in such a case by deducing from
facts. The danger of allowing the Executive to furnish Members of
Congress from the public service was discussed at length. The committee
did not contend that a Member must be actually residing in a State at
the time of his election. Foreign ministers going abroad, but from the
nature of the case precluded from becoming citizens of a
Sec. 435
foreign power or obtaining the rights of inhabitancy, did not lose
their inhabitancy at home by absence.
In support of the sitting Member the arguments were urged that the
expressed will of the people should be set aside only for conclusive
reasons; that a liberal construction had always been given in behalf of
the rights of the people in such cases; that the proceedings in the
constitutional convention changing the word ``resident'' for
``inhabitant'' showed that the framers of the instrument considered
that a person might be an inhabitant without actually being a resident.
The usages of Massachusetts showed that the word ``inhabitant''
referred to a person as a member of the political community, and not as
a resident. It was probable that the Constitution meant that the
meaning of the word ``inhabitant'' should be settled by the State
usage. What decision could be of more force than that of the electors
themselves? A person coming from a State to the District, left the
direct jurisdiction of his State, but not its participant jurisdiction.
An ambassador most certainly became the inhabitant of the foreign
country if ``local existence'' was the test. If ``locality of
existence'' were the test, persons on journeys would be constantly
transferring their inhabitancy. The real meaning of ``inhabitant'' was
one who had a ``permanent home'' or domicile in a place. The intention
to return constituted the pivot on which the decision must turn. A man,
citizen in one State, going into another to transact business, did not
cease to be an inhabitant in the first State. There must be an
intention to permanently settle to establish inhabitancy in the second
State. No one denied that Mr. Bailey was a citizen of Massachusetts. If
a citizen he must be an inhabitant. A citizen was always an inhabitant,
but an inhabitant was not always a citizen. No one could be compelled
to renounce his native State, yet to deny Mr. Bailey his seat would be
in the direction of compelling him to do it against his own will and
the will of his constituents. The sitting Member declared himself an
inhabitant of Massachusetts, his constituents recognized him as such,
and the governor of the State, in effect, had certified him as such.
Mr. Bailey had left an extensive and valuable library in Massachusetts,
constituting the greater portion of his visible property. Why were they
not sold or brought to the District if he intended to settle
permanently here? If ``locality of existence'' were the test, the
members of the House might all be ineligible, as they were inhabitants
of Washington. Foreign ministers did not lose their inhabitancy because
they never intended to settle in the foreign country.
In Committee of the Whole, a motion to strike the word ``not'' from
the resolution was decided in the negative by a vote of 105 to 55.
In the House the resolution of the committee was agreed to, yeas 125,
nays 55.
So Mr. Bailey was declared not entitled to the seat.
435. The Virginia election case of Bayley v. Barbour, in the Forty-
seventh Congress.
A Member who had resided a portion of the year in the District of
Columbia, but who had a home in the State of his citizenship and was
actually living there at the time of the election, was held to be
qualified.
The Elections Committee held that a contestant could have no claim to
a seat declared vacant because of the constitutional disqualifications
of the sitting Member.
Sec. 435
A suggestion that questions relating solely to qualifications of
members should be brought in by memorial rather than by proceedings in
contest.
On April 12, 1882,\1\ Mr. John T. Wait, of Connecticut, from the
Committee of Elections, submitted the report of the committee in the
case of Bayley v. Barbour, from Virginia.
As to all of the grounds of contest but one the committee found no
evidence to sustain them. The report says:
In disposing of these grounds of contest it is only necessary to
state that there was no evidence whatever offered in support of them,
and that there was no contention before the committee that they were in
point of fact true. Having been abandoned, it appears from the record
that of the 27,441 legal votes cast at said election the said Bayley,
contestant, received only 9,177. This leaves for the committee's
consideration the sole question raised by the first ground set out in
the notice of contestant, to wit:
That the said John S. Barbour, at the time of said election for such
Representative, was ineligible and disqualified to be the
Representative of said district and State.
The said ineligibility and disqualification consists in this, that
the said John S. Barbour was not at the time aforesaid either a bona
fide resident or inhabitant of said State of Virginia.
When the contestant abandoned the grounds of contest above set forth
he at the same time relinquished all right or claim to the seat of the
sitting Member, even in the event that the same should be declared
vacant on the ground of the constitutional ineligibility and
disqualification of its occupant.
In the case as made up and presented to the committee the contestant
has only that interest in it that is possessed by every other elector
in the district; yet there is no petition or memorial from any body of
the electors of the district addressed to Congress setting forth any
objection to the right of Mr. Barbour to a seat in the House to which
he has been elected on the alleged ground that he is not possessed of
those qualifications which, by the Constitution of the United States,
are indispensable to the holding of a seat in Congress.
Both upon principle and precedent the committee think that those
questions which relate solely to the qualifications of Members of
Congress should be more appropriately brought to the attention of
Congress by a memorial of the electors who are alone interested in the
result. This practice could work no wrong, and would be productive of
much good in preventing troublesome and gratuitous contests which might
be inspired by motives other than the interests of the electors.
The subject being one of great importance, however, they have
considered it on the testimony adduced, which is solely upon the
question of the qualification of Barbour under the Constitution of the
United States.
In support of the voluntary contest thus made by S. P. Bayley against
the eligibility of the sitting Member he proceeded to take the
testimony of three witnesses in the city of Alexandria, namely, George
Duffey, Augustus F. Idensen, and John S. Barbour, the last named being
the returned Member himself, the object being to show that the said
Barbour was not a bona fide inhabitant of the State of Virginia, as
required by the Constitution of the United States. Mr. Duffey was the
commissioner of revenue for the city of Alexandria, and Mr. Idensen was
clerk to the State assessor of that city for the year 1880. The
contestee, Barbour, on his own behalf, took no testimony, but submitted
the case upon the evidence of the contestant.
Duffey testifies that it was his duty to assess all real and personal
properties, incomes, licenses, etc., also the annual capitation tax
prescribed by law upon all male inhabitants of the State abiding in the
city of Alexandria over 21 years of age at the time of the assessment.
That the said Barbour had no real property in the city of Alexandria,
but that the property of his wife situated there was assessed to her on
the property books as an Alexandrian, the law requiring the residence
of the owner to be given. Idensen testifies that this was changed in
1880, when Mrs. Barbour, after the election, was put down as a resident
of Washington, D.C., when he, as the assessor's clerk, knew that John
S. Barbour was an actual resident in the city, and so stated in his
deposition. Mr. Barbour testifies that he was a native of the State of
Virginia; had always been a citizen of said State; never claimed to
have lived elsewhere in a permanent sense or to have exercised
citizenship in any
-----------------------------------------------------------------------
\1\ First session Forty-seventh Congress, House Report No. 1040; 2
Ellsworth, p. 676.
Sec. 435
other State or Territory; that his post-office, business headquarters,
residence required by statute for the service of legal process upon
him, were all in the city of Alexandria, and within the limits of said
State, and that while he had a temporary winter residence in the city
of Washington, he had taken a house in Alexandria, with his family, in
September, 1880, and was so actually residing at the date of the
Congressional election in November, 1880, and subsequently.
The Code of Virginia, ch. 166, see. 7, which provides for the manner
of serving process against corporations, says:
``It shall be sufficient to serve any process against or notice to a
corporation on its mayor, rector, president, or other chief officer, or
in his absence from the county or corporation in which he resides,
etc., * * * and service on any person under this section shall be in
the county or corporation in which he resides; and the return shall
show this and state on whom and when the service was, otherwise the
service shall not be valid.''
Under this statute service of process was habitually made upon John
S. Barbour, as president of the Virginia Midland Railway, as a resident
of Alexandria.
That in July previous to his nomination for Congress he had declined
to be listed by the enumerator of Washington City as an inhabitant of
that city, but then stated that he was an inhabitant of Virginia.
That when traveling absent from the State of Virginia he invariably
registered himself as from Virginia.
That at the time of the election and before he was actually residing
in Alexandria, without any intention of removing therefrom permanently.
It was contended on behalf of the contestant that although John S.
Barbour was an actual resident of the city of Alexandria, Va., within
said district, at and before the time of the election, he was not an
inhabitant within the meaning of the constitutional requirements to
qualify him as a Member of Congress.
In support of this view the case of John Bailey (Clark and Hall's
Contested Election Cases, p. 411) was relied upon. Bailey was chosen a
Member of Congress from the State of Massachusetts on the 8th day of
September, 1823, at which time he was actually residing in the city of
Washington, in the capacity of clerk in the State Department. On the
1st day of October, 1817, Bailey, who was at that time a resident of
Massachusetts, was appointed by the Secretary of State a clerk in the
Department of State and immediately repaired to Washington and entered
on the duties of his appointment. He continued to reside in the city
from that time with his family--having in the meantime married--in the
capacity of a clerk in the Department of State until the 21st day of
October, 1823, subsequent to the date of his election, at which time he
resigned his appointment. Upon the petition of certain citizens and
electors of the Norfolk district, in the State of Massachusetts, the
question of his eligibility and qualification under the Constitution
was brought to the attention of Congress, and it was contended on
behalf of Bailey that, although he had been from the time of his
appointment in 1817 up to and subsequent to his election to Congress a
resident of Washington, he had retained his citizenship in the State of
Massachusetts, and by virtue of this citizenship it was contended that
within the constitutional requirement he was qualified as a Member of
Congress from that State. The committee considered at some length the
distinction between citizenship and inhabitancy, and their report,
which was approved by Congress, against the eligibility of Bailey as a
Congressman was based upon these distinctions. It was held that, being
a citizen of the State, granting that Bailey was such, but residing
permanently elsewhere did not satisfy the constitutional requirements
necessary to make him eligible as a Member of Congress. The committee
say that ``the word `inhabitant' comprehends a simple fact-locality of
existence; that `citizen' comprehends a combination of civil
privileges, some of which may be enjoyed in any of the States of the
Union.''
The case of Barbour differs materially from that of Bailey in this,
that not only had Barbour continued to be a citizen of the State of
Virginia, but that he had always held his legal residence in said State
as hereinabove recited. Added to that was the fact that previous to his
election as a Member of Congress from the Eighth Congressional district
of Virginia he had removed to said State and had become an actual
inhabitant thereof, residing there without any intention of permanently
removing, whereas Bailey was, when elected, an actual inhabitant and
resident of the District of Columbia, not claiming a residence or
inhabitancy actually in the State of Massachusetts, except
constructively through and by virtue of his citizenship, which he
contended he had never renounced in said State.
It was contended further by the contestant in this case that the
elective-franchise in Virginia was one of the essentials of
inhabitancy, and that under the local laws of the State of Virginia a
residence
Sec. 435
of twelve months within the State, and a residence of three months next
preceding the election in the county, city, or town where the person
offers to vote, was a requisite qualification of an elector, and that
with these requisite qualifications a registration was also necessary;
that John S. Barbour had never registered as a voter, and therefore he
was not an inhabitant within the contemplation of the Constitution.
It was contended that the word ``inhabitant'' embraces citizenship;
that an inhabitant must be entitled to all the privileges and
advantages conferred by the laws of Virginia, and that the elective
franchise alone confers these; therefore an inhabitant must have a
right to vote and, further, that the burdens of inhabitancy were
predicated upon the right to vote.
In answer to this position, without deeming it necessary upon the
facts of this case to enter into the constitutional signification of
inhabitancy, it is only necessary to say that the right to vote is not
an essential of inhabitancy within the meaning of the Constitution,
which is apparent from an inspection of the Constitution itself. In
Article 1, section 2, the electors for Members of Congress ``shall have
the qualifications requisite for electors of the most numerous branch
of the State legislature,'' but in the succeeding section, providing
for the qualifications of Members of Congress, it is provided that he
shall be an inhabitant of the State in which he shall be chosen. It is
reasonable to conclude that if the elective franchise was an essential
the word ``elector'' would have been used in both sections, and that it
is not used is conclusive that it was not so intended.
In the case of Philip Barton Key (Clark and Hall's Contested Election
Cases, p. 224), who was elected a Member of Congress from Maryland on
the 6th day of October, 1806, and who was seated as such, the facts are
these: Mr. Key was an inhabitant of the District of Columbia, and in
November, 1805, he purchased about 1,000 acres of land in Montgomery
County, Md., about 14 miles from Georgetown; that some time in the
summer of 1806 he caused a dwelling house to be erected on said lands,
into which he removed with his family on the 18th September, 1806; that
he was residing in said house, which was only partially completed, from
that time up to the 20th of October, 1806, when he removed back with
his family to his seat in the District of Columbia, where he remained
till about the 28th of July, 1807, when they again removed to his
estate in Montgomery County, where they remained till the 20th of
October, 1807, when they again returned to his seat in the District of
Columbia. He was only living and inhabiting within his said district in
Maryland for the period of little upward of a month, during which time,
to wit, on the 6th day of October, 1806, the election took place, at
which he was returned as a Representative to Congress from said
district. Notwithstanding this short residence, and the fact that Mr.
Key, before his removal to Maryland, had been confessedly a citizen and
inhabitant of the District of Columbia, it was decided by Congress that
he was eligible and qualified under the Constitution as a Member of
Congress.
In further answer to the position that the elective franchise is
necessary to qualify one as a Member of Congress, it will appear from
an inspection of the constitution of Maryland of 1776, and in full
force in 1806, when Mr. Key was elected a Member of Congress from
Maryland, that the qualifications for electors for the most numerous
branch of the legislature--
``Shall be freemen above twenty-one years of age, with a freehold of
fifty acres of land in the county in which they offer to vote, and
residing therein, and all freemen having property in this State above
the value of thirty pounds current money, and having resided in the
county in which they offer to vote one whole year next preceding the
election.''
Therefore, Mr. Key, who was deemed qualified as a Member of Congress,
was not an elector of the State of Maryland, and could not vote at the
election at which he was returned as a Member.
Without resting this case, however, upon these grounds, the committee
are satisfied from the facts of the case, as developed in the
testimony, that John S. Barbour was, in point of fact, before and at
the time of his election as a Member of Congress from the Eighth
Congressional district of Virginia, an actual inhabitant of the State,
enjoying all the rights and subject to all the burdens as such, and
that having been duly elected as a Member of Congress from said
district he is entitled to his seat.
Resolved, That John S. Barbour was duly elected and is entitled to
his seat as a Member of the Forty-seventh Congress from the Eighth
Congressional district of the State of Virginia.
The resolutions were agreed to by the House on April 12 without
debate or division.\1\
-----------------------------------------------------------------------
\1\ Journal, p. 1031; Record, p. 2811.
Sec. 436
436. The Virginia election case of McDonald v. Jones, in the Fifty-
fourth Congress.
A contestant who had his business and a residence in the District of
Columbia and had no business or residence in Virginia was held
ineligible for a seat from that State.
The legal time for serving a notice of contest in an election case is
extended by the House only for good reason, and where there seems to be
reasonable ground for a contest.
On February 28, 1896,\1\ the Committee on Elections No. 1 reported on
the case of McDonald v. Jones, from Virginia. In this case the
contestant applied for leave to serve notice of contest, which he had
not served within the time required by the statutes. The committee
concluded that with reasonable diligence the notice might have been
served within the prescribed time. They did not, however, rest their
rejection of the application on this ground entirely, but reported--
(1) That they were convinced from the proofs presented at the hearing
that there was no substantial ground for a contest and that the same
could not be maintained successfully if the notice should be
authorized.
(2) It also appeared that the contestant ``at the time of the
election in 1894, and prior to and since that time, was engaged in
business and resided with his family in the city of Washington, in the
District of Columbia, and that he had no place of business and no
business or residence of any description in the State of Virginia; and
the committee is of opinion that he was not an inhabitant of the State
of Virginia at or near the time of the election for Representatives in
Congress in the First Congressional district of said State in 1894; and
that he was not eligible for said office at or near the time of the
said election in the year 1894.''
The House, without debate or division, agreed to the resolution of
the committee denying the application of the contestant.
437. The Senate considered qualified a Senator who, being a citizen
of the United States, had been an inhabitant of the State from which he
was appointed for less than a year.--On June 2, 1809,\2\ Stanley
Griswold, appointed a Senator by the executive of the State of Ohio to
fill the vacancy occasioned by the resignation of Edward Tiffin, was
qualified and took his seat. On June 9 his credentials were referred to
the Committee on Elections, and on June 15 Mr. James Hilhouse, of
Connecticut, chairman of that committee, submitted this report:
That Edward Tiffin, a Senator for the State of Ohio, resigned his
seat since the last session of the legislature of said State and during
their recess; that on the 18th day of May last, and during said recess
of said legislature, said Stanley Griswold was appointed by the
governor of said State to fill the vacancy occasioned by the
resignation aforesaid; that said Stanley Griswold, being a citizen of
the United States, removed into the said State of Ohio and has there
resided since September last, but the term of residence or other
qualifications necessary to entitle a person to become an inhabitant of
said State are not, so far as the committee have been able to discover,
defined either by the constitution or laws of said State; but the
executive who made the appointment having certified that said Stanley
Griswold is a citizen of said State, the committee submit the following
resolution.
-----------------------------------------------------------------------
\1\ First session Fifty-fourth Congress, House Report No. 568;
Journal, p. 254; Record, p. 2281.
\2\ Election Cases, Senate Document No. 11, Fifty-eighth Congress,
special session, p. 174.
PRECEDENTS OF THE HOUSE OF REPRESENTATIVES.
THE QUALIFICATIONS OF THE MEMBER.
Sec. 438
And thereupon the Senate--
Resolved, That Stanley Griswold, appointed by the governor of the
State of Ohio as a Senator of the United States, to fill the vacancy
occasioned by the resignation of Edward Tiffin, is entitled to his
seat.
438. The Senate overruled its committee and held as qualified
Adelbert Ames, who, when elected Senator from Mississippi, was merely
stationed there as an army officer, but who had declared his intention
of making his home in that State.
Credentials unusual in form and signed by the Member-elect himself as
``major-general'' and ``provisional governor'' of Mississippi, were
honored by the Senate.
On March 18, 1870,\1\ Mr. Roscoe Conkling, of New York, in the Senate
submitted the following report from the Committee on the Judiciary:
The Committee on the Judiciary, to whom were referred the credentials
of Adelbert Ames, claiming to be a Senator-elect from the State of
Mississippi, report the following facts and conclusions:
Mr. Ames was born in Maine in 1835, and resided with his parents in
that State until 1856, when he entered the Military Academy at West
Point. From 1856 he remained in the military service of the United
States until he resigned his commission, which he states was after the
passage, but before the approval by the President, of the bill finally
declaring Mississippi entitled to representation in Congress.
Until 1862 his parents continued to reside in Maine, and such
articles and papers of his as would naturally be kept at his home
remained at his father's house. In 1862 his parents removed to
Minnesota, carrying with them the effects of their son in their
possession, and in subsequent years he occasionally revisited Maine,
but owned no land and occupied no habitation there of his own.
In 1868 he was ordered to Mississippi; on the 15th of June in that
year he became provisional governor by appointment of General McDowell,
then district commander, and in March, 1869, he became himself district
commander by assignment of the President of the United States. These
relations continued, modified, if modified at all, only as will
presently appear.
The election seems to have been regular, and waiving any criticism of
the form of the certificate, no question has been made touching the
right of Mr. Ames to take his seat, except in regard to the legal
character of his residence in Mississippi.
The provision of the Constitution of the United States under which
the question arises is this:
``No person shall be a Senator who shall not have attained to the age
of thirty years, and been nine years a citizen of the United States,
and who shall not, when elected, be an inhabitant of that State for
which he shall be chosen.''
It will be seen that to be eligible as a Senator of the United States
a person, in addition to other qualifications, must be an inhabitant of
the State for which he is chosen, and he must be such an inhabitant
``when elected.''
The election in this instance occurred on the 18th day of January,
1870.
At this time Mr. Ames was a military officer, stationed in
Mississippi by order of superior military authority, and acting as
provisional governor by appointment from General McDowell, as already
stated. His presence in these two characters comprises everything
bearing upon the question of his residence in Mississippi down to the
time when he became a candidate for the Senate. The precise date can
not be fixed, but not long before the election General Ames determined
to allow his name to be submitted to the legislature as one of those
from which the choice of Senators might be made.
Having reached this determination, and in connection with it, General
Ames declared, as far as he did declare it, his intention in regard to
his future residence. His language as delivered to the committee
touching his declarations and acts is as follows:
``Upon the success of the Republican ticket in Mississippi I was
repeatedly approached to become a candidate for the United States
Senate. For a long time I declined--I wrote letters declining. A
-----------------------------------------------------------------------
\1\ Second session Forty-first Congress, Senate Report No. 75;
Election Cases, Senate Document No. 11, special session Fifty-eighth
Congress, p. 375.
Sec. 438
number of persons in Mississippi visited this city to find arguments by
which I might be influenced to become a candidate. I hesitated because
it would necessitate the abandonment of my whole military life.
Finally, for personal and public reasons, I decided to become a
candidate and leave the Army. My intentions were publicly declared and
sincere. (The intentions thus declared were not only to become a
candidate for the Senate, but to remain and reside in Mississippi.) I
even made arrangements, almost final and permanent, with a person to
manage property I intended to buy. This was before I left Mississippi.
My resignation was accepted by the President before he signed the bill
to admit the State.''
The conclusion of the committee upon these facts is that General Ames
was not, when elected, an inhabitant of the State for which he was
chosen, and that he is not entitled to take his seat.
The committee therefore recommend the adoption of the following
resolution:
Resolved, That Adelbert Ames is not eligible to the seat in the
Senate of the United States to which he has been appointed.
In opening the debate in support of the resolution, on March 22,\1\
Mr. Conkling cited the definitions of ``inhabitant'' and the precedents
of the House in the cases of John Bailey, Jennings Pigott,\2\ the
British cases of Brown v. Smith and Cockrell v. Cockrell. Commenting on
what might be considered ambiguous language in the report, Mr. Conkling
said that General Ames had not been able to affirm that it was his
intention to remain in Mississippi in the event that he should not be
elected to the Senate. In opposition, however, it was urged \3\ by Mr.
Jacob M. Howard, of Michigan, that General Ames had determined
irrevocably to make Mississippi his home, and that this was not at all
a conditional determination. Mr. Howard also cited the opinion of Chief
Justice Shaw as to habitancy (17 Pickering, 234):
It is often a question of great difficulty, depending upon minute and
complicated circumstances, leaving the question in so much doubt that a
slight circumstance may turn the balance. In such a circumstance the
mere declaration of the party, made in good faith, of his election to
make the one place rather than the other his home would be sufficient
to turn the scale.
Against this, on March 23, was cited an opinion of Chief Justice
Parker in support of the argument that General Ames did not go to
Mississippi of his own free will, and, moreover, that he sustained no
municipal relations as a citizen there, and therefore that he was not
an inhabitant.
The report was debated at great length on March 22, 23, and 31, and
April 1,\4\ and on the latter day the motion of Mr. Charles Sumner, of
Massachusetts, that the word ``not'' be stricken out was agreed to--
yeas 40, nays 12.\5\
Then the resolution, as amended, was agreed to without division and
Mr. Ames took the oath.
A question was also raised in this case as to the credentials. Mr.
Ames, as ``brevet major-general United States Army and provisional
governor,'' certified to his own election to the Senate.\6\ This point
was discussed somewhat in the debate,\7\ but did not affect the
decision.
-----------------------------------------------------------------------
\1\ Globe, pp. 2127-2129.
\2\ See Section 369 of this volume.
\3\ Globe, p. 2131.
\4\ Globe, pp. 2125-2135, 2156-2169, 2303-2316, 2335-2349.
\5\ Globe, p. 2349.
\6\ Globe, p. 2125.
\7\ Globe, p. 2129.
Sec. 439
439. A Senator who, at the time of his election, was actually
residing in the District of Columbia as an officeholder, but who voted
in his old home and had no intent of making the District his domicile,
was held to be qualified.--In 1899,\1\ the Senate considered the case
of Nathan B. Scott, elected a Senator from the State of West Virginia
for the term beginning March 4, 1899. Before Mr. Scott appeared to
claim his seat certain memorials were presented to the Senate
remonstrating against the seating of Mr. Scott. At the beginning of the
first session of the Fifty-sixth Congress Mr. Scott was duly seated as
a Senator from the State of West Virginia, without objection at the
time. Afterwards a resolution was introduced in the Senate declaring
that Mr. Scott was not entitled to a seat in the Senate; which was
referred to the Committee on Privileges and Elections, with the
memorials referred to.
March 20, 1900, the committee submitted a report with an accompanying
resolution that Mr. Scott was entitled to a seat in the Senate as a
Senator from the State of West Virginia. A minority of the committee
dissented.
The principal element of the case was as to irregularities in the
West Virginia legislature at the time of the election of Senator.
Another objection is thus treated in the majority report presented by
Mr. L. E. McComas, of Maryland:
The fifth objection assigned by John T. McGraw, memorialist, is that
at the time of the election of Mr. Scott he was a citizen but not an
inhabitant of the State of West Virginia, but was an inhabitant of the
District of Columbia.
It is admitted that Mr. Scott was born in Ohio; that when a young man
he removed to Wheeling, in West Virginia, engaged in business, had
resided there until January 1, 1898, when he was appointed by the
President Commissioner of Internal Revenue, and upon his confirmation
thereafter he came to Washington to discharge the duties of this
Federal office, but with the intent to retain his residence,
citizenship, inhabitancy, and domicile in Wheeling, W. Va., his home;
that in accord with this intent he exercised unchallenged the right to
vote and did vote on November 8, 1898, in the precinct in Wheeling
where his residence was and had remained unchanged; that he came here
with no intent to change his domicile to Washington from Wheeling, and
that he claims to be an inhabitant of Wheeling, W. Va., and that he
remained in Washington in the discharge of his official functions with
intent to return to his home in Wheeling when his duties of office here
ended.
The mere statement of facts should suffice to show that this
objection is unfounded. The Federal Constitution requires that the
Senator shall bean ``inhabitant'' of the State. This term is a legal
equivalent of the term ``resident,'' and residence is what is required
by the law of West Virginia to entitle the male citizens of that State
to vote.
The committee, without extended discussion, were unanimously of the
opinion that Mr. Scott was an inhabitant of West Virginia at the time
of his election to the Senate of the United States and is entitled to
retain his seat.
440. During the discussion of the qualifications of a Senator he
presented his resignation; but the Senate disregarded it and proceeded
to declare his election void.--On March 14, 1849,\2\ the Senate was
considering the eligibility of Mr. James Shields, of Illinois, to a
seat in the Senate, when Mr. Shields tendered a letter containing his
resignation. The reading of this letter was not permitted until the
pending question had been postponed. Then the letter was
-----------------------------------------------------------------------
\1\ Election Cases, Senate Document No. 11, special session Fifty-
eighth Congress, p. 888.
\2\ Second session Thirtieth Congress, Senate Journal, pp. 364, 365;
Appendix of Globe, pp. 338, 342-346.
Sec. 440
read, and a resolution directing the Vice-President to inform the
executive of the State of Illinois of the resignation was offered.
On March 15 the subject was debated at length, it being urged that if
the Senate should inform the executive of Illinois of the resignation,
that official might assume that such a vacancy existed as he would have
the power to fill by appointment; also that the Senate would be
precluded from settling the question as to Mr. Shield's qualifications.
Finally the resolution directing the executive of Illinois to be
informed was laid on the table, yeas 33, nays 14. Then the Senate
resumed the subject of qualification and declared Mr. Shield's election
void by reason of his not having been a citizen a sufficient time.