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. 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 legis lature 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 exclude 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 qualifications 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. ment, the House of Representatives refused admission to memberselect who had been disloyal to the Union.14 The Senate at first refused to pursue this practice,15 although they expelled several members for disloyalty.16 Finally, after the Fourteenth Amendment had passed both houses of Congress, and been ratified by three-fourths of the States there represented, but not by threefourths of the entire number, the Senate refused to allow a Senator-elect to take the oath, or to hold a seat, upon the ground that he had "voluntarily given aid, countenance and encouragement to persons engaged in armed hostility to the United States.""7 14 Kentucky Election Cases, 2 Bart., 327, 368; McCrary on Elections, § 284. 15 In the case of Benjamin Stark of Oregon, against whom charges of disloyalty were made, the Senate, Jan. 10, 1862, resolved that the oath be not administered to him until after the report of the committee on the judiciary upon his credentials and the charges, which were referred to them. On Feb. 7, 1862, the following report was made: The Committee on the Judiciary, to whom were referred the credentials of Benjamin Stark, as Senator from the State of Oregon, with the accompanying papers, have had the same under consideration, and, without expressing any opinion as to the effect of the papers before them upon any subsequent proceedings in the case, they report the following resolutions: Resolved, that Benjamin Stark, of Oregon, appointed a Senator of that State by the governor thereof, is entitled to take the Constitutional oath of office." The resolution was amended by adding the words, "without prejudice to any subsequent proceedings in the case"; and thus passed by twenty-six yeas to nineteen nays, Feb. 27, 1862. Lyman Trumbull made a strong minority report in which he argued that disloyalty was a disqualification (see infra, note 20). After the oath had been administered to Stark the papers were referred to a select committee who after investigation reported, April 2, 1862, in favor of his expulsion. On June 6, 1862, a motion for his expulsion was negatived; there being sixteen yeas and twenty-one nays. (Taft's Senate Election Cases, continued by Furber, pp. 188–201.) 16 Cases of James M. Mason, John C. Breckinridge, Trusten Polk, Waldo P. Johnson, Jesse D. Bright and others. (Ibid., pp. 741, 743, 744, 746, 748.) 17 In the case of Philip F. Thomas of Maryland, Feb. 19, 1868, the following resolution was adopted after an investigation by the Committee on the Judiciary: Resolved, that Philip F. Thomas, having voluntarily given aid, countenance and encouragement to persons engaged in armed hostility to the United States, is not entitled to have the oath of office as a Senator of the United States from the State of Maryland, or to hold a seat in this body as such Senator; and that the president pro tempore of the Senate inform the governor of the State of Maryland of the action of the Senate in the premises." It was argued in the debate that the Fourteenth Amendment had been effectively ratified and that the excluded States should not be taken into consideration in that connection. (Ibid., pp., 237-243.) C It has since been held by the House of Representatives that a member duly elected could not be disqualified for a cause not named in the Constitution, such as immorality, and that the remedy in such a case, if any, was expulsion.18 The distinction between the right to refuse admission and the right of expulsion upon the same ground is important, since the former can be done by a majority of a quorum, whereas expulsion requires the vote of two-thirds.19 The question cannot be said to have been authoritatively decided. The principle that each house has the right to impose a qualification upon its membership which is not prescribed in the Constitution, if established, might be of great danger to the republic. It was on this excuse that the French Directory procured an annulment of elections to the Council of Five Hundred, and thus maintained themselves in power against the will of the people, who gladly accepted the despotism of Napoleon as a relief.20 18 Maxwell v. Cannon, 43d Congress, cited in McCrary on Elections, 3d ed., § 590. 19 Constitution, Article I, Section 5. 20 The arguments in support of the right of either house to exclude for disloyalty are well set forth in the minority report of Lyman Trumbull in Stark's Case (ibid., pp. 190-191): "It is admitted that neither the Senate, Congress, nor a State can superadd other qualifications for a Senator to those prescribed by the Constitution, and yet either may prevent a person possessing all those qualifications, and duly elected, from taking his seat in the Senate. Does any one question the right of a State to arrest for crime a person duly qualified for and appointed Senator, hold him in confinement, and thereby prevent his appearing in the Senate to qualify? Suppose a Senator, after his appointment and before qualifying, to commit the crime of murder, would anyone question the right of the State authorities where the crime was committed to arrest, confine, and if found guilty execute the murderer, and thereby prevent his taking his seat? Or if the punishment for the offence was imprisonment, would any one question the right to hold the Senator in prison and thereby prevent his appearing in the Senate? Could the Senate in such a case expel him before he had been admitted to a seat? Or must he be brought from the felon's cell, be introduced into the Senate, and sworn as a member before his seat could be declared vacant? If not, must the State go unrepresented till the time for which he was appointed has expired? Or would it be competent for the Senate, in such a case, by a majority vote to declare the convict incompetent to hold a seat in the body, and thereby open the way for the appointment of a successor? It is manifest that the prescribing of the qualifications for a Senator in the Constitution was not intended to prevent his being amenable for his crimes. The fact that the Constitution declares that Senators and Representatives 'shall in all cases, ex |