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of the citizens of the State possessing the constitutional qualifications, who happen to reside in a particular district; before, their choice was not limited to this district, but extended to the whole.
The whole district system exists without the authority of the Constitution of the United States. The Constitution has no provision relative to the division of the States into representative districts. It does not thus divide each State, and then give to the people of each district the right to elect a representative. It instead gives to the people of each State the power to elect a number of representatives proportional to the population. For instance, every voter in Vermont would, by the Constitution, have the right to vote for three representatives, resident anywhere in the State. Now, although the State legislature may, under the clause of the Constitution providing that “the times, places, and manner of holding elections for senators and representatives, shall be prescribed in each State by the legislature thereof,” for convenience' sake apportion the State into districts, and assign to each a representative, instead of having all the representatives to which the State is entitled elected on a general ticket to represent the State at large, can the legislature deny to the voter in one of these districts the right which he before possessed, by the Constitution, of voting for any man in the State, having the other constitutional qualifications, for his representative ? An individual residing in the Fifth Massachusetts District, for example, to recur to the case previously alluded to, may prefer a citizen of the Fourth or of the Seventh District for his representative. By the Constitution of the United States, he has a perfect right to express that preference by his vote. Can the State legislature take away this right? In short, can a State legislature take away a right conferred upon the people by the Constitution of the United States ?. If it can, then it can take away the right of the people to elect a representative at all. No one would maintain this. Neither would it be maintained that the legislature could assume the power of electing the representatives to which the State is entitled, because the Constitution stipulates that they shall be elected “ by the people of the several States.” But if the legislature is allowed to add qualifications, it may virtually arrogate to itself this power, because to the qualifications enumerated in the Constitution it may append the following: “No person shall be chosen a representative in Congress who shall not have been previously nominated by the legislature.” If it has the power to prescribe as a qualification residence in the district represented, it has the power as well to prescribe a preliminary nomination by itself. The proposition that a legislature has the power to deprive the people of the right granted by the Constitution of electing representatives, we repeat, would be affirmed by no one, unless by a secessionist; and yet the proposition that it may superadd qualifications amounts to the same thing. For if the legislature can say that the representative must not only be an inhabitant of the State, as the Constitution provides, but also an inhabitant of the district represented, it may say equally that he must not only be twenty-five years of age, but also thirty-five. If it can do this, it can in effect annul the people's right of choosing a representative, by placing the required age so high that no one can be found in the State who has attained it.
If the constitutional provision is not to be interpreted as enumerating all the qualifications required in a representative, but as meaning only that the representative must at least be twenty-five years of age, seven years a citizen, and an inhabitant of the State, it being left to the State legislatures to extend these restrictions at their pleasure, then they may be extended in regard to age or length of citizenship as well as in regard to inhabitancy in the State. The Constitution allows the voter to select his representative from among the class who are inhabitants of the State, seven years citizens of the United States, and twenty-five years of age. If the legislature is empowered to eliminate from this class of possible candidates those who reside outside of the voter's district, it is equally empowered to eliminate those who are under the age of one hundred, and it may thus effectually destroy the right of the people to elect representatives. Or it might accomplish the same thing by affixing a property qualification, making the amount required greater than any one in the State is worth. A State might, if possessing this power, convert it to partisan purposes, by making it available to defeat the popular will in any district which happened to contain a majority of voters opposed to the prevailing sentiment of the State. If, for instance, a member should be offensive, the legislature might enact that no person of the profession to which he chanced to belong should be eligible. Or, if the State has the power to say that the representative must live in his district, it can equally well say that he must live in a particular part of it; then if a member, disliked by the legislature, but popular in his district, should happen to live in one county, the legislature might enact that the representative of that district must live in another county. In the statutes of Maryland, there is or was a provision of this character concerning the Baltimore District, and this came into discussion in the Barney v: McCreery case, to which allusion will be hereafter made. If this power had been conceded, how easy it would have been twenty years ago, when Joshua R. Giddings was so troublesome to the majority in Congress, and from the obstinacy of his constituents there seemed to be no prospect of getting rid of him, for the legislature of Ohio, strongly democratic in those days of course, to have noted Mr. Giddings's county, and then to have passed a law that the representative of that district must live in some other county. Or it might have attained the same end without resorting to this stratagem, but directly, by enacting that no man of anti-slavery principles should be elected to Congress. If a State has the power to prescribe qualifications at all, it has the power to establish a political test like this. Upon the dangers of conceding such a power, the opinion of Madison may well be cited. In the debate in the convention concerning qualifications, he said, —.
“The qualifications of electors and elected are fundamental articles in a republican government, and ought to be fixed by the Constitution. If the legislature could regulate those of either, it can by degrees subvert the Constitution. A republic may be converted into an aristocracy or oligarchy, as well by limiting the number capable of being elected, as the number authorized to elect. ... Qualifications founded on artificial distinctions may be devised by the stronger, in order to keep out partisans of a weaker faction.” See 5 Elliot's Debates, 404.
The Constitution provides that, “ Each House shall be judge of the elections, returns, and qualifications of its own members.” By what is it to judge? It can only be by the Constitution of the United States, the instrument to which it owes its existence, and by which its powers and duties are defined. In judging of the “elections” and “ returns,” it looks to the Constitution, and finds this provision : “ The times, places, and manner of holding elections for senators and representatives shall be prescribed in each State by the legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing senators." If the election of a member whose seat is contested is found to have been held in accordance with the regulations prescribed by the legislature in virtue of the power thus given, or with the regulations as made or altered by Congress by law, and the member to have been returned by a majority of the legal voters composing his constituency, that is, of the electors who have the qualifications requisite for electors of the most numerous branch of his State legislature, then he is decided to be entitled to his seat as far as the matter of “elections” and “ returns” is concerned. Next, as to qualifications, the House recurs to the Constitution, but does not find, as in the case of “ the times, places, and manner of holding elections,” that the qualifications “ shall be prescribed in each State by the legislature thereof,” but it finds those qualifications explicitly set forth in the following section : “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," — a provision not referring the matter to the State legislatures, but settling it for itself. If 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, it follows, by a familiar rule of interpretation, that any person who has attained to the age of twenty-five years, been seven years a citizen of the United States, and who is, at the time of his election, an inhabitant of the State in which he shall be chosen, may be elected a representative. Mr. Crittenden says, in his speech in the Senate, March 5, 1856, on the Trumbull case, “ The very enumeration of these qualifications excludes the idea that they intended any other qualifications. That is the plain rule of ordinary construction.” Senator Foote, of Vermont, in his speech on the same case, says, “ It comes within a familiar principle, that the enumeration of certain requisites of qualification, or of certain disabilities to election, is the negation of all others, and is equivalent to a positive prohibition of all authority to impose any others.” And Judge Story, in his“ Commentaries on the Constitution,” $ 625, says, “ 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 exclude all others, as prerequisites. From the very nature of such a provision, the affirmation of these qualifications would seem to imply a negative of all others. ... A power to add new qualifications is certainly equivalent to a power to vary them.”
And finally, Hamilton, in the “ Federalist,” No. 52, speaking of the constitutional qualifications, says, “ Subject to these reasonable limitations, the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith.”
Let us look at one or two other passages in the Constitution where the negative form is used, and see if this is not the natural interpretation. Article 1, Section 6, Part 2, provides that, “ No senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time.” Is there any doubt that a senator or representative may, during the time for which he was elected, be appointed to any civil office under the United States which has not been created, or the emoluments of which have not been increased during such time? Again, Article 1, Section 5, Part 4, provides that “ Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days,” &c. But either House certainly may, with the consent of the other, adjourn for more than three days, as is repeatedly done. As to the matter of qualifications, Article 2, Section 1, Part 5, provides that “No person, except a natural-born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office, who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.” We presume no doubts would, from this passage, be raised as to the eligibility of any citizen of the United States thirty-five years of age, and fourteen years a resident of the country. As to the probable reason why the qualifications of members of Congress were stated negatively, instead of in the positive form, “ Any person twenty-five years of age,” &c., “ may be chosen a representative,” which, it has been argued, would have been used if it had been intended to exclude other qualifications being added by the States, we shall presently remark.