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should elect as a representative a citizen of the State, but not of the district, the House of Representatives would admit him, regardless of any law of his State to the contrary. The precedents, without exception, sustain this opinion. Both the Senate and the House of Representatives have invariably disregarded all provisions of the State constitutions or enactments of the State legislatures tending to limit the people or future legislatures in their choice respectively of representatives or senators.

The Constitution of Tennessee, as before remarked, provides that no member of the legislature shall be elected to the United States Senate ; but John Bell was a member of the legislature, and was, while such, elected to the Senate, and took his seat without question. The Constitution of New York contains a similar prohibition; yet Nathaniel P. Tallmadge, while a State senator, was elected to the United States Senate, and served his full term. Mr. Seward was a member of the legislature of New York at the time of Mr. Tallmadge's election, and opposed it on the ground that he was by this clause of their Constitution ineligible ; but afterwards, when Mr. Trumbull's case came before the Senate, Mr. Seward maintained his right to his seat, saying, in reference to his former position on the question, “I have only to say, that my mind has undergone a change on further examination of the subject.”

This subject came most prominently before the Senate in the discussion upon Mr. Trumbull's right to his seat, in 1856. That gentleman was sworn in as senator from Illinois, in December, 1855. Mr. Cass presented a protest signed by thirteen senators and twenty-nine representatives in the Illinois legislature against his admission. Their protest was based on Article 4, Section 10, of the Constitution of Illinois, which is as follows:

“ 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, shall be

Mr. Trumbull had been elected judge of the Supreme Court in June, 1852, for the term of nine years. He was elected senator in February, 1855, having resigned his office as judge some eighteen months before. His case came within the rule, as the term for which he was elected would not expire till 1861. The manifest purpose of the prohibition was to guard the purity of the judiciary, and hence it would seem to be at least as much entitled to the respect of the Senate ás any conceivable State regulation, in regard to the qualifications of senators. And yet it was ignored by the Senate, it being decided that Mr. Trumbull was entitled to his seat by a vote of thirty-five to eight. The Senate thereby decided that a State could not add to the disqualifications enumerated in the Constitution, that “No person shall be a senator who has been within ten years elected judge of a State court.”


The same question came up in the House the same session. Mr. Trumbull had been chosen a representative previous to his election as senator. At the same election, Hon. S. S. Marshall had been returned from another district of Illinois. Mr. Marshall had been elected judge of the Circuit Court, in 1851, for four years, and had resigned this position only a few months previous to his election as representative. The seats of both gentlemen were contested on the ground of ineligibility arising from the prohibitory clause in the State constitution. But the House by a large majority declared Mr. Marshall entitled to his seat, and Mr. Trumbull's seat to be vacant, he having resigned upon his election to the Senate.

The earliest case of this kind upon which the House was called to act arose in the Ninth Congress. By an act of the legislature of Georgia, it was directed that, within twenty-five days after the day of election of representatives in Congress, the votes should be counted, and that the Governor should thereupon make proclamation of the persons having the greatest number of votes, and issue their commissions. At the election for members of the Ninth Congress, in one of the districts the votes of three counties had not been received at the expiration of the specified period. Cowles Mead at that time had 4,438 votes, and Thomas Spalding, 4,269, and the former received the certificate of election. On receiving the votes of the counties mentioned, it appeared that Spalding had 4,504, and Mead, 4,465. On these facts, the House unseated Mead, by a vote of 68 to 53, and declared Spalding to be entitled to his seat by a vote of 66 to 52.

This was not, to be sure, a direct decision upon the power of a State to add qualifications, but it showed the disposition of the House to settle for itself all questions as to the claims of its mem

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bers to their seats, regardless of State laws. Subsequently, in the discussion upon the McCreery case, John Randolph said, with reference to this decision, that “ an act of God, the great hurricane, rendered it physically impossible to execute the law, and therefore it was dispensed with.” It appeared that the delay in sending in the votes from the three counties was owing to a tempest which flooded the country, swept away the bridges, and rendered the roads impassable, — these obstructions not being removed till after the expiration of the twenty-five days. But this fact could not have influenced the decision of the House, as the Committee on Elections refused to admit evidence of the hurricane, the impassability of the roads, &c., holding it to be immaterial.

The McCreery case, to which allusion has been repeatedly made, was the most important one that has arisen, in its bearings upon the subject before us, undergoing as it did an elaborate discussion, at an early period in the history of the Government, and the question directly involved being the right of a State to legislate in regard to the residence of a representative in Congress. The facts were these: By an act of the Assembly of Maryland, passed in 1802, Baltimore town and county were to constitute the Fifth Congressional District, which was to elect two representatives, one of whom should be a resident of Baltimore County and the other of Baltimore City. At the election in the district for members of the Tenth Congress, Nicholas R. Moore, of Baltimore County, had 6,164 votes, the highest number cast, and was elected; so that by the law the other member for the district must come from the city. Joshua Barney, of the city, had 2,063, and William McCreery, 3,559. There was a doubt as to whether McCreery was legally a resident of Baltimore City, and hence his seat was contested by Barney. After a long and able debate, and one or two reports by the Committee on Elections, that committee finally reported the following: “ 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.” The Committee of the Whole reported this to the House, amended by striking out “agreeably to the Constitution of the United States," and the amendment was agreed to by a vote of 70 to 37. Mr. Randolph moved as an amendment, “Resolved, that William McCreery, having the qualifications prescribed by the law of Maryland, is entitled to his seat in this House.” This was voted down by 92 to 8. The resolution was finally worded as follows: “Resolved, that William McCreery is entitled to his seat in this House," and passed by a vote of 89 to 18. This was not a test vote upon the question we are considering, as some of those voting in the affirmative believed Mr. McCreery to be legally a citizen of Baltimore City, and hence entitled to his seat, whether the law of Maryland was regarded or not; but the preceding debate was mainly upon the right of Maryland to pass such a law, but little being said upon the question as to McCreery's residence in Baltimore; and the weight of opinion was strongly against this right, the vote on Randolph's amendment showing a very decided opposition to the principle, that a member's title to his seat depended in any degree upon his having the qualifications prescribed by the law of the State from which he came.


To the extracts already given, we add the following from the opinions of eminent statesmen and jurists upon the subject under discussion. Mr. Crittenden, in his speech in the Senate, March 3, 1856, on the Trumbull case says,

“ The whole object of the Constitution of the United States could not be more completely subverted by eradicating from the Constitution the positive qualifications which it requires, than it would be in substance, and virtually, by superadding qualifications. If the Constitution has not thought proper to make further qualifications, what is the reason of it? It is because its framers did not desire any other to be made. Did they intend carefully to make these qualifications, and then leave it to the States to make any which, according to their casual will, or wish, or caprice, they might, from time to time, make?”

Senator Foote, of Vermont, in his speech on the same question, says, —

“ A State, either by legislative enactment or by provision of its organic law, has nothing to do with defining the tenure of office, the duties, powers, or jurisdiction of office, or the qualifications for office, of any Federal officer, whose functions are all created, regulated, and controlled by the Federal Government. ... The eligibility of a person to any office must be determined by the Constitution or the law under which the office was created, and by which its jurisdiction and powers and duties are regulated and controlled. The eligibility of a State officer must be determined by the Constitution and laws of the State ; and so, too, must the eligibility of a United States officer be determined by the Constitution and laws of the United States. The one cannot interfere in any case with the qualifi

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