time within the State or district, and the age of twenty-one years, are the sole qualifications required for membership in either. House. In one State a member of the upper house must be thirty, 19 and in two twenty-five years of age.20 In Delaware a representative must be twenty-four years of age.21 Some States make officers of the United States and judicial or municipal officers ineligible,22 but in most the people have wisely allowed the voters of each district to choose their representatives in the legislature with few restrictions. It is the constant practice in Great Britain and France for the constituents to choose representatives irrespective of their places of residence. In the United States local prejudice rarely permits this in the case of members of Congress where it is allowed, and it is usual in State constitutions to forbid it in the election of members of the State legislature. The former practice, by the broader choice which it affords, is apt to secure the election of abler men; but by the latter the representative is more apt to be acquainted with the wishes of his constituents and to obey them.23 19 New Jersey Constitution, Article IV, Section 2. 20 Illinois Constitution, Article V, Section 3, and North Dakota Constitution, Article II, Section 28. 21 Delaware Constitution, Article II. 22 New York, Article III, Section 8; Florida, Article III, Section 7; Illinois, Article V, Section 3; Iowa, Article III, Section 6. In the Republic of Hawaii, "In order to be eligible to election as a senator, a person shall be a male citizen of the Republic; have attained the age of thirty years; be able understandingly to speak, read, and write the English or the Hawaiian language; have resided in the Hawaiian Islands not less than three years; be the owner, in his own right, of property in the Republic of the value of not less than three thousand dollars over and above all incumbrances; or have been in the receipt of a money income of not less than twelve hundred dollars during the year immediately preceding the date of the election, for the proof of which he may be required to produce original accounts of the receipt of such income" (Article 56). Similiar qualifications as to citizenship, previous residence and education are required of representatives. The requisite age for a representative is twenty-five years; and the property qualification, one thousand dollars net of principal, or an income for the past twelve months of six hundred dollars (Article 58). 23 It is hard to believe that a speech like that of Burke to the electors of Bristol could have been made by a candidate for Congress in the United States. $62. Congressional Decisions on Qualifications of Senators and Representatives. The word "inhabitant" has a different meaning from "resident." Residence implies permanency, or at least an intention to remain. Habitancy may be temporary. A man's residence is often a legal conclusion from statements showing his intention. Habitancy is a physical fact which may be proved by eye-witnesses.1 It was held by the Senate that an army officer stationed in Mississippi might be elected senator from that State if he had announced his intention to permanently reside there, although he was originally appointed from another State.2 It was held by the House of Representatives that a citizen of Massachusetts who was a clerk in the Department of State at Washington, was not an inhabitant of any State, and was consequently ineligible to a seat in Congress; 3 but that a minister of the United States, while discharging his official functions at a foreign court, did not cease to be an inhabitant of the State from which he was appointed, and might be elected to Congress. In the cases of Albert Gallatin, afterward Secretary of the Treasury,5 and James Shields," of Illinois, the Senate refused admission to the persons elected, upon the ground that § 62. 1 See the remarks of Madison in the Federal Convention, supra, § 61, note 12. McCrary says, in McCrary on Elections (3rd ed.), § 289: "It would seem that the framers of the Constitution were impressed with a deep sense of the importance of an actual bona fide residence of the representative among the constituency, a residence in the sense of actual living among them and commingling with them, and therefore employed the term inhabitant in the sense of living or abiding, and not in the sense of technical residence." 2 Case of Adelbert Ames, Taft's Senate Election Cases, continued by Furber, p. 279. 3 Electors v. Bailey, Cl. & Hall, 411. 4 Case of John Forsyth of Georgia, Cl. & Hall, 497. McCrary says of this case, in McCrary on Elections (3d ed.), § 290: The foreign representative carries with him the sovereignty of the government to which he belongs; his rights as a citizen are not impaired by his absence; children born in the house he occupies are considered as born within the territory and jurisdiction of the government in whose service he is; he does not possess the capacity, by residence in the foreign country, to become one of its citizens, or to lose his allegiance to the country from which he comes. None of these things attach to those persons who are employed in the home service of the government." 5 Taft's Senate Election Cases, continued by Furber, p. 61; see also Life of Albert Gallatin, by Henry Adams, pp. 119, 120. 6 Taft's Senate Election Cases, continued by Furber, p. 122. 8 they had not been citizens of the United States for the requisite term of years. The certificate of the governor of a State that the person elected a senator is a citizen thereof is sufficient prima facie evidence of the fact. Notwithstanding the decision in the Dred Scott case, it was held that a person of African blood might be elected to the Senate within less than nine years after the adoption of the Fourteenth Amendment.9 The States have no power to add to the qualifications which are required for a senator or representative; and all provisions in their statutes or constitutions which forbid a member of the legislature or other State officer from being chosen senator have been rejected by the Senate as void.10 A sen 7 Case of Stanley Griswold. Taft's Senate Election Cases, continued by Furber, p. 78. 8 Dred Scott v. Sandford, 19 How., 393. 9 Revels' Case, Taft's Senate Election Cases, continued by Furber, p. 274. 10 Cases of Lyman Trumbull, Taft's Senate Election Cases, continued by Furber, p. 132, and Lucas V. Faulkner, ibid., 626. Judge Story's comments on this point are instructive: "A question, however, has been suggested upon this subject which ought not to be passed over without notice. And that is, whether the States can superadd any qualifications to those prescribed by the Constitution of the United States. The laws of some of the States have already required that the representative should be a freeholder, and be resident within the district for which he is chosen. If a State legislature has authority to pass laws to this effect, they may impose any other qualifications beyond these provided by the Constitution, however inconvenient, restrictive, or even mischievous they may be to the interests of the Union. The legislature of one State may require that none but a Deist, a Catholic, a Protestant, a Calvinist, or a Universalist shall be a representative. The legislature of another State may require that none shall be a representative but a planter, a farmer, a mechanic, or a manufacturer. It may exclude merchants and divines and physicians and lawyers. Another legislature may require a high moneyed qualifi cation, a freehold of great value, or personal estate of great amount. Another legislature may require that the party shall have been born and always lived in the State, or district, or that he shall be an inhabitant of a particular town or city, free of a corporation, or an eldest son. In short there is no end to the varieties of qualifications which, without insisting upon extravagant cases, may be imagined. A State may, with the sole object of dissolving the Union, create qualifications so high and so singular that it shall become impracticable to elect any representative." Citing the Federalist, No. 52; 1 Tucker's Black Comm., App., 213. "It would seem but fair reasoning, upon the plainest principles of interpretation, that when the Constitution established certain qualifications as necessary for office, it meant to exIclude all others as prerequisites. From the very nature of such a provision, the affirmation of these quali ator, "laboring under mental and physical debility, but not of un fications would seem to imply a negative of all others. And a doubt of this sort seems to have pervaded the mind of a learned commentator. A power to add new qualifications is certainly equivalent to a power to vary them. It adds to the aggregate what changes the nature of the former requisites. The House of Representatives seems to have acted upon this interpretation, and to have held that the State legislatures have no power to prescribe new qualifications, unknown to the Constitution of the United States. A celebrated American statesman, however, with his avowed devotion to State power, has intimated a contrary doctrine. 'If,' says he, whenever the Constitution assumes a single power out of many which belong to the same subject, we should consider it as assuming the whole, it would vest the general government with a mass of powers never contemplated. On the contrary, the assumption of particular powers seems an exclusion of all not assumed. This reasoning appears to me to be sound, but on so recent a change of view, caution requires us not to be overconfident.' He intimates, however, that unless the case be either clear or urgent, it would be better to let it lie undisturbed. It does not seem to have occurred to this celebrated statesman, that the whole of this reasoning, which is avowedly founded upon the amendment to the Constitution which provides that the powers not delegated nor prohibited to the States are reserved to the States respectively, or to the people,' proceeds upon a basis which is inapplicable to the case. In the first place, no powers could be reserved to the States, except those which existed in the States before the Constitution was adopted. The amendment does not profess, and, indeed, did not intend, to confer on the States any new powers, but merely to reserve to them what were not conceded to the government of the Union. Now, it may properly be asked, where did the States get the power to appoint representatives in the national government?" Citing Tucker's Black Comm., App., vol. i, p. 213; Jefferson's Correspondence, vol. iv, pp. 238,239. "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 quali fications from the Constitution, and neither created by, dependent upon, nor controllable by the States. It is no original prerogative of the State power to appoint a representative, a senator, or President for the Union. Those officers owe their existence and functions to the united voice of the whole, not of a portion of the people. Before a State can assert the right, it must show that the Constitution has delegated and recognized it. No State can say that it has reserved what it never possessed. Besides, sound mind," was admitted." It would probably be held that a lunatic was disqualified as an exception recognized by the common law and included in the Constitution by implication.12 The disqualification of the candidate with the highest number of votes does not entitle his competitor to a seat in Congress.13 During the Civil War, and before the adoption of the Fourteenth Amend independent of this, there is another fundamental objection to the reasoning. The whole scope of the argument is, to show that the legislature of the State has a right to prescribe new qualifications. Now, if the State in its political capacity had it, it would not follow that the legislature possessed it. That must depend upon the powers confided to the State legislature by its own constitution. A State, and the legislature of a State, are quite different political beings. Now it would be very desirable to know in which part of any State constitution this authority, exclusively of a national character, is found delegated to any State legislature. But this is not all. The amendment does not reserve the powers to the States exclusively, as political bodies, for the language of the amendment is, that the powers not delegated, etc., are reserved to the States or to the people. To justify, then, the exercise of the power by a State, it is indispensable to show that it has not been reserved by the people of the State. The people of the State, by adopting the Constitution, have declared what their will is, as to the qualifications for office. And here the maxim, if ever, must apply, expressio unius est exclusio alterius. It might further be urged, that the Constitution, being the act of the whole people of the United States, formed and fashioned according to their own views, it is not to be assumed, as the basis of any reasoning, that they have given any control over the functionaries created by it to any State, beyond what is found in the text of the instrument. When such a control is asserted, it is matter of proof, not of assumption; it is matter to be established, as of right, and not to be exercised by usurpation, until it is displaced. The burthen of proof is on the State, and not on the government of the Union. The affirmative is to be established; the negative is not to be denied, and the denial taken for a concession. "In regard to the power of a State to prescribe the qualification of inhabitancy or residence in a district, as an additional qualification, there is this forcible reason for denying it, that it is undertaking to act upon the very qualification prescribed by the Constitution, as to inhabitancy in the State, and abridging its operation. It is precisely the same exercise of power on the part of the States, as if they should prescribe that a representative should be forty years of age, and a citizen for ten years. In each case, the very qualification fixed by the Constitution is completely evaded and indirectly abolished." (Story on the Constitution, 5th ed., §§ 624-629, pp. 460–463.) 11 Case of John M. Niles, Taft's Senate Election Cases, continued by Furber, p. 120. 12 See supra, § 55, note 24. Burgess expresses this opinion in his Political Science, vol. ii, p. 52. 13 Infra, Ch. XVI. |