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such adoption is not allowed to affect the work itself. The most important defect of this organization is, that it does not embrace among its numbers many men whose labors would be most valuable, and whose concurrence most important to the success of the great work. England is well represented. America contributes Field, one of the most experienced codifiers of our time, and Mr. Beach Lawrence, whose stores of learning ought not to be wanting to such an enterprise. But Lieber, Halleck, Dana, and Sumner, among Americans; and Bluntschli, Kluber, Heffter, Hautefeuille, with other Europeans who need not be named here, should certainly lend their aid and their fame to an undertaking which they have done so much to render possible, and for which they possess such brilliant qualifications. It will be easy to invite them to attend the approaching congress, and thus to assemble all the learning and authority of the day.

We therefore hail the code of Bluntschli and the Social Science Congress as harbingers of the new era of international law. It would be too much, perhaps, to hope at once for a perfect work, for universal assent to the result, or for the absence of opposition and ridicule. But the task has been begun, and must go on, until a mild, harmonious, and enlightened system of international jurisprudence shall enfold within its arms the whole circle of the civilized world.



The recent Congressional canvass in the Fifth District of Massachusetts, in which two of the candidates were, except for the purposes of this election, residents of other sections of the State, the one of the Fourth and the other of the Seventh District, gives importance to the often mooted question of the expediency of providing by statute that the members of the lower house of Congress must reside in the districts which they respectively represent. Previous to the election in the district named two years before, it was apparent that a large majority of its voters favored the return of a gentleman who was not one of their number. But by the laws of Massachusetts they were prohibited from giving expression to their choice, chap. 226, sect. 1, of the Statutes of 1862, being as follows:

“For the purpose of electing representatives in the Thirty-eighth Congress of the United States, and in each subsequent Congress, until otherwise provided by law, the Commonwealth shall be divided into ten districts, each of which shall elect one representative, being an inhabitant of the same, in the manner now provided by law.”

To evade the statute and gratify the desire of the voters in question, a subterfuge was resorted to, and the favored candidate was obliged to remove to a town within the limits of the district of which it was proposed to make him the representative.

Whenever it becomes necessary to resort to a “legal fiction” in order to accomplish any purpose, the wisdom of the law which it is thus sought to evade becomes at once questionable. And the question here arises, Is the law of Massachusetts, which limits the voters of the State, in looking for a fit person to represent them in Congress, to the boundaries of the district in which they hap pen to live, a wise one, especially when we see, from the instance cited, that it is sometimes their pleasure to go elsewhere for a candidate? A graver question still is suggested, Is the statute in question constitutional ? Had the legislature any power to enact it? If not, then of course it is not obligatory upon the people, and the sooner it is repealed the better. A few obvious arguments, taken in connection with the precedents and authorities upon the subject, seem conclusively to show that a negative answer is to be given to these questions, that for the candidates mentioned to have repaired, at an early period of the year, to their summer residences by the sea, there to remain until a season when sea-bathing and sea-air are not usually numbered among the luxuries, was an entirely unnecessary proceeding upon their part; and that if the representative elected had never for a day been beyond the sound of the factories of Lowell, the House of Representatives, in view of its own past action and that of the Senate, would never seriously have questioned the validity of his election.


The Constitution of the United States enumerates certain qualifications as required for a representative. The statute referred to prescribes an additional qualification ; namely, residence in the district represented. The general question, then, upon which the validity of the statute depends, is simply this: Can a State superadd qualifications to those specified in the Constitution of the United States ? This question is one of general interest; for the provision requiring residence in the district, as a qualification for a representative, is contained in the statutes, not only of Massachusetts, but also of Vermont, Connecticut, Virginia, and Georgia, and possibly of one or two other States, the statutes of which we have not had the opportunity to examine. Other qualifications, moreover, have been imposed by some of the States. New York and Tennessee disqualify members of the legislature for election to the United States Senate; Illinois disqualifies judges of the Supreme and Circuit Courts of the State for election to the Senate or House of Representatives ; Virginia requires the possession of a freehold as a condition of eligibility, — the law reading that “ the electors shall vote for some discreet and proper person, being a freeholder and resident within such district, as a member of the House of Representatives of the United States ;” Georgia requires the member not only to be an inhabitant of the State, but to have been such for three years next preceding his election, and to have paid his tax regularly during that time. See Cobb's Dig. Laws Ga., tit. Elections, p. 333.

The question as to the power of the States to prescribe these qualifications has been involved in several contested election cases in both houses of Congress, and on each occasion, generally after elaborate discussion, the decision has been virtually in the negative. The correctness of these decisions must become apparent from a few plain considerations.


The office of representative in Congress is a United States office, as much so as that of President. It was created by the Constitution of the United States, and to that must we look for its functions, and for the requisites for eligibility to it. Before its creation by the Constitution, the people of no State, either directly or through the instrumentality of their legislature, had the power to choose a representative in Congress, because no such office existed. It is not a State office in any sense, and hence the State has no authority to fix the terms upon which it is to be filled. It is an office the occupant of which is to be elected by the people, or a certain portion of the people, of the United States; and to the Constitution of the United States, the creator of 'the office, alone, are the people to look for their guide in electing such occupant. The representative is a member of the Legislative, one of the three great departments of the National Government. He is accordingly

just as much a national officer as the President, who is at the head of another of those departments, the Executive. But a State cannot determine the qualifications of the President. For instance, as to the matter of residence, which we are considering, if there had been a statute of Illinois providing that no citizen of that State should be eligible to the presidency unless he resided in Chicago, no one would think of questioning the legality of General Grant's election from the fact that his home was in Galena; the statute would be treated as nugatory and void, because it would be an attempt to legislate upon a matter not within the jurisdiction of the State legislature. If the State, then, cannot prescribe the qualifications of those who are to constitute the Executive, how can it of those who are to constitute the Legislative Department of the National Government? If it cannot prohibit its citizens from voting for whom they wish for President, provided he have the constitutional qualifications, how can it prohibit them from voting for whom they wish for representatives, provided they likewise vote for men having the constitutional qualifications ?

The National Government is entirely distinct from the State governments. Each looks to its own Constitution alone for guidance as to the eligibility of its officers. It would be considered an. unwarranted and absurd exercise of power for Congress to enact


that the members of the lower branch of the legislature of a particular State should reside in the towns or districts which they represented. Is it not equally unwarranted and absurd for the legislature of that State to enact that the members of the lower branch of Congress, an independent, sovereign body, shall reside in the districts they represent? In the language of Senator Foote, of Vermont, in his speech in the Senate, March 5, 1856, on the Trumbull case, “ the test of qualification for office, State or National, can be prescribed only by the authority under which the office itself exists; and that test must be uniform. No State can prescribe a rule or standard of qualification for office in any other State. Congress can prescribe no rule or standard of qualification for office in the States, and for the reason, that they are all distinct and independent sovereignties.”

It would not be contended that it was in the power of a State legislature to say that no person should be postmaster of a town in the State, or collector of one of its seaports, unless an inhabitant of such town or seaport; the offices of postmaster and collector being United States offices, and the State consequently having nothing to do with their qualifications. Can it be any more competent for it to say that a representative in Congress of a portion of its citizens must reside in the district represented, that being equally a United States office ?

The power to elect a representative in Congress is conferred upon the people by the Constitution of the United States. The State legislature did not grant the power, and hence it cannot take it away. Can it then limit or diminish it? To concede that a State may by statute limit the power by imposing qualifications additional to those specified in the Constitution, is in effect to concede that it may take away, in part, the power granted by the Constitution. What is this power? It is a power in the people, directly, without the agency of their State legislature, to elect any inhabitant of their State, twenty-five years of age, and seven years a citizen of the United States to the national House of Representatives. If now the legislature steps in and adds a qualification, namely, residence in a certain section of the State, this is a limitation of the right given by the Constitution ; for now the citizens have not the right to elect any inhabitant of the State twenty-five years of age, and seven years a citizen. · They have the right only of selecting their representative from that portion

VOL. 111.

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