complaining of the illegality of the election of the members holding seats in this House, as elected within that State, made a report, which was read and ordered to lie on the table.

The House proceeded to consider the report from the Committee of Elections, stating the proof of the facts charged in the petition of David Ramsey, suggesting that WILLIAM SMITH, returned a member of this House for the State of South Carolina, was, at the time of his election, ineligible, by reason that he had not been seven years a citizen of the United States.Adjourned.

FRIDAY, May 22.

CONTESTED ELECTION.

The House resumed the consideration of the report on Mr. SMITH'S case.

[MAY, 1789.

time in England, with the hope of receiving re-
mittances from Charleston. Here again my ex-
pectation was defeated. The rapid depreciation
of the Continental money rendered the negotia-
tion of money transactions extremely difficult,
and thus I remained till the fall of Charleston. I
took this opportunity of studying the law, but
could not be called to the bar, because I had not
taken the oath of allegiance to Great Britain,
which is a necessary qualification. After the sur-
render of Charleston, the whole State of South
Carolina, fell into the hands of the enemy, and it
was impossible at that time to return. No sooner,
however, did I acquire the means, and an oppor-
tunity offered, than I prepared myself to go back
to America. I quitted London for that purpose
in October or November, 1782, not in a vessel
which I certainly should have done, had I consid-
bound to Charleston, then a British garrison, and
have been most convenient, as there were vessels
ered myself a British subject, and which would
constantly going from London to Charleston; but
I travelled to Ostend, and there embarked in a

Mr. LAWRENCE moved the recommitment of the report, with instructions to the committee, to examine and report facts arising from the proofs, in order to save the time of the House in the in-neutral vessel bound to St. Kitt's, from whence it quiry.

Mr. LIVERMORE objected to this motion, and said, if he was to decide upon Mr. SMITH's eligibility, he would hear the evidence, and not commit to any man whatsoever to inquire for him.

After some desultory conversation on the recommitment and mode of proceeding, it was agreed to examine the evidence in favor of Mr. SMITH, the facts alleged by Doctor Ramsay, in proof that Mr. SMITH was not seven years a citizen of the United States, being admitted. Whereupon, it being moved and seconded, that the House do agree to the following resolution:

Resolved, That it appears to this House, upon full and mature consideration, that the said WILLIAM SMITH had been seven years a citizen of the United States, at the time of his election.

Mr. SMITH. As the House are inclined to hear the observations I have to make, I shall begin with admitting the facts stated in the memorial of Doctor Ramsey, hoping the House will excuse the egotism into which I am unavoidably drawn. I was born in Charleston, South Carolina, of a family whose ancestors were among the first settlers of that colony, and was sent to England for my education when I was but twelve years of age. In 1774, I was sent to Geneva, to pursue my studies, where I resided until 1778. In November, that year, I went to Paris, where I resided upwards of two months in the character of an American gentleman. Immediately on my arrival there, I waited on Doctor Franklin, Mr. Adams, and Mr. A. Lee, the commissioners from Congress to the Court of France, as a citizen of America, and was received as such by them. In January, 1779, I left Paris for London, whither I Went to procure the means of embarking for America, from the gentleman who had been appointed my guardian by my father when I was first sent to Europe in 1770, and from whom alone I had any hope of obtaining such means. But in this endeavor. I was disappointed, and remained some

and thence to some American port in North Carowas my intention to proceed to a Danish island, lina or Georgia, from whence I could reach the American camp. In the beginning of January, 1783, I sailed from Ostend, but was detained a considerable time by contrary winds, and in the middle of the month of February, was shipwrecked on the coast of England, and was obliged to return to London in order to procure another vented my return to Charleston, until some time passage. These circumstances unavoidably prein November, 1783.

On my arrival at Charleston, I was received by my countrymen as a citizen of the State of South Carolina, and elected by their free suffrage a member of the Legislature in November, 1784. In the August following, I was chosen, by the Governor and Council, a member of the Privy Council, and this election was confirmed by the Legislature the October following. In September, the same year, I was elected one of the Wardens of the City of Charleston. In November, 1786, I was again elected into the Legislature; again in November, 1788; I was elected at the same time that I was elected to the House of Representatives of the United States, the September preceding having been chosen again a Warden of the city.

After having stated these facts, he went on adverting to the laws referred to in the report of the committee, which he said, he conceived to be applicable to the present case.

In September, 1779, a question was discussed in the Legislature of South Carolina, respecting the young men who were sent abroad for their education, and it was determined that it was most for the interest of the State, that they should be allowed to continue in Europe till they were twenty-two years of age; after which the law provided they should be doubly taxed if they did not return. This law might fairly be supposed to recognise the citizenship of all the young men in

MAY, 1789.]

Contested Election.

[H. OF R.

admitted a citizen two years prior to his voting; but for the higher privileges of a citizen, being eligible to offices of trust, to a seat in the Legislature and Privy Council, the alien must have been naturalized by law. Now, in November, 1784, he was elected into the Legislature, and took his seat without objection in January, 1785, and was elected into the Privy Council, October, 1785; all without being naturalized by law.

a similar predicament with himself. It allowed them all to be absent until they were twenty-two years of age; but even after that period it did not deprive them of the right of citizenship; it only subjected them to the penalty of a double tax. This he contended was a sort of compact with him, that if he chose to be absent after that time, he should suffer a certain penalty, which, in its own nature, implied that his citizenship remained; but before he attained that age, South Carolina In October, 1785, when he was elected to the was in such a situation that her best friends were Council, his election was opposed, but the objeccompelled to be absent, and take refuge in distant tion now brought forward was not then made; countries. It was not till some time after that the and the memorialist himself, who was a member friends of the American cause began to assemble of the Legislature, voted in favor of the choice; in that State; the absentee law, therefore, never though, unquestionably, unless he was considered operated on him, and he never was doubly taxed. by the Legislature as a citizen before he returned In February, 1782, the Legislature met at Jack-to Charleston, nothing had afterwards occurred sonburg, and discriminated between friend and to make him so, and the alien act of 1784 posifoe, between American and British subjects, by tively required a naturalization by act of Assemdisposing of the estates of the latter, and banish-bly to give him a qualification. ing them; from an inspection of the law passed at that time, it would be evident in what light they viewed him. He had landed property in the State, but was himself in England; yet they did not attempt to confiscate his property, or subject him to an amercement. The absentee law was his safeguard, he had the permission of the State to be abroad.

The constitution of South Carolina is silent as to citizenship, but allowed any person to vote at elections who had resided a year in the State, and paid a certain tax; to be a member of the Assembly he must have resided three, and to be a Privy Counsellor five years previous to his election, but nothing was said about citizenship. The act of 1784, however, expressly defined who should If the Legislature in 1782 recognised as citizens and who should not be deemed citizens; and, consome of those persons whose estates were confis- sequently, all persons who did not become citicated for adhering to Great Britain, and for being zens must have been held to be aliens, and condisaffected to America, a fortiori, did it not recog-sidered so, till they had conformed to the alien nise as a citizen one whose estate was not forfeit- act of 1784. Now, as he was admitted to offices ed, who had not been deemed worthy of punish- of trust, to which aliens were not admissible, and ment, and who had been absent under the sanction as he was admitted to them without having the of the law? rights of citizenship conferred upon him, in pursuance of that act, it followed clearly, that the people of South Carolina and the Legislature acknowledged him to be a citizen by virtue of the Revolution.

By the constitution of South Carolina it appears that no person was eligible to a seat in the Legislature until he had resided three years, nor to a seat in the Privy Council until he had resided five years in the State. He had a seat in both He went on to observe, that, from the doctrine those bodies before he had resided two years in laid down by the memorialist, it was difficult to the State of South Carolina, and no objection was ascertain when he did become a citizen of South ever made on that score. He could not have been Carolina. When he was admitted to the bar in qualified for either, had not the people of South 1784, he did no act which made him a citizen, the Carolina deemed his residence in that State such bare act of taking an oath of qualification to an a residence as gained him a qualification; or had office could not convert an alien to a citizen. The they not supposed the qualification required in the constitution seemed to imply a mere residence of constitution applied only to new comers and new a year, by giving a right to vote, gave a right of citizens, for whom that residence was necessary citizenship; if that were the case, and if his resito wean them from their local prejudices and na-dence prior to the Revolution was considered tional habits, and to attach them to the Commonwealth. Had they not, in short, supposed him to have been a citizen during the Revolution, and attached to his native State by every tie which could bind an individual to any country? Three years residence was either not required of him, or his former residence was deemed within the meaning of the Constitution.

An act to confer the right of citizenship on aliens was passed March 26, 1784. For the purpose of possessing the subordinate rights of citizenship, such as an exemption from the alien duty, a residence of one year, and taking the oath of allegiance, was sufficient. To confer a right of voting at elections, a person must have been

such a residence as the constitution required, then he was a citizen, by virtue of the constitution, after having resided a year in Carolina. Now, it was clear, his residence prior to the war was deemed such a residence as the constitution required; because he was admitted to vote and admitted to a seat in the Legislature and Council by right of such residence, not having had the requisite residence since the war, and yet being deemed qualified. If, therefore, that part of the constitution which gave a right of voting, in consequence of a year's residence and paying a certain tax, virtually conferred citizenship, by giving a right to vote, (and it appeared absurd that a right to vote should be given to persons not citi

Secondly, there could be no doubt that a minor might be a citizen, from the very words of the It had been said that Carolina had called on Constitution, which admitted a person to be a her young men to come to her assistance. This member of the House of Representatives at twenwas not the true state of the case. Carolina ty-five, and yet required a citizenship of seven thought that her young men who were abroad years. This was of itself a sufficient refutation for their education, should not be taken from of every thing contained in the petition on this their studies till they were twenty-two years of head. The Constitution acknowledged that a age, and doubly taxed them after that. His guar-person might be a citizen at eighteen; if so, there dian wrote to him that he had permission of the was no reason why a person might not be one at Legislature to be absent till he was twenty-two, | sixteen or fourteen.

and that he should be doubly taxed after that age. Mr. LEE said the committee had now to deter

MAY, 1789.]

Contested Election.

[H. of R.

mine whether Mr. SMITH was a citizen of South from the circumstance of their having been born Carolina during his absence from home, or not. in this country thirty or forty years ago, and, If the laws of that State recognised him as such, after having glutted our market with extravagant the question was determined, because this House importations, carry the whole profits of their could not dispute a fact of that kind. From the commerce to their present residence in foreign reference that has been made to the constitution countries. These, and many other dangerous and laws of South Carolina, and the circumstances consequences, would, as your petitioner apprewhich took place under them, with respect to Mr. hends, follow from the establishment of a preceSMITH, it was convincing that he was acknowl-dent, by which it was acknowledged, that a native edged there to be a citizen in consequence of the of this country might be a citizen of the United Revolution. States before he lived under their Government."

Mr. THATCHER thought the examination had been full; the facts stated in the memorial were admitted; but, nevertheless, it appeared from other facts, that Mr. SMITH was received and respected as a citizen of that standing which the Constitution required. He had considered the subject maturely, and was now ready for the decision.

Mr. MADISON.-I think the merit of the question is now to be decided, whether the gentleman is eligible to a seat in this House or not; but it will depend on the decision of a previous question, whether he has been seven years a citizen of the United States or not.

From an attention to the facts which have been adduced, and from a consideration of the princiThe petition of Dr. Ramsey was again read, in ples established by the Revolution, the conclusion which he stated, "That citizenship with the Uni- I have drawn is, that Mr. SMITH was, on the deted States is an adventitious character to every claration of independence, a citizen of the United person possessing it, who is now thirty years of States; and unless it appears that he has forfeited age; and that it can, in no case, have been ac- his right, by some neglect or overt act, he had conquired but in one of the following modes: 1st, tinued a citizen until the day of his election to a By birth or inheritance. 2dly, By having been a seat in this House. I take it to be a clear point, party to the late Revolution. 3dly, By taking an that we are to be guided, in our decision, by the oath of fidelity to some of the States. 4thly, Bylaws and constitution of South Carolina, so far as tacit consent. 5thly, By adoption: and that Mr. SMITH cannot have acquired the character of a citizen in either of these modes, seven years ago. He cannot be a citizen by birth or inheritance, for he was born in 1758, in South Carolina, while a British colony; and his parents were both dead many years before the declaration of independence; his birthright and inheritance can, therefore, be no other than that of a British subject; for no man can be born a citizen of a Government which did not exist at the time of his being born; nor can parents leave to their children any other political character than that which they themselves possessed."

After going on to state his reasons why Mr. SMITH Could not have acquired citizenship in any of the other modes, he proceeds to say, that he "conceives that birth and residence in this country, before the Revolution, could not confer citizenship on Americans who were absent when independence was declared, while they were absent, and anterior to their returning and joining their country under its new and independent Government; for, on that supposition, many persons hostile to these States must be admitted citizens; those who have been born for thirteen years before the declaration of independence, within the posts of our northwestern frontiers, which are unjustly detained from us by the British, would be citizens. Our East India trade would be laid open to the numerous natives of this country, who are now dispersed over Europe and the West Indies. If birth and residence within the limits of the United States before the Revolution conferred the rights of citizenship, persons of the aforesaid description, who have neither done nor hazarded any thing for our independence, might trade to the East Indies as citizens of the United States, 1st CoN.-14

they can guide us; and where the laws do not expressly guide us, we must be guided by principles of a general nature, so far as they are applicable to the present case.

It were to be wished, that we had some law adduced, more precisely defining the qualities of a citizen or an alien; particular laws of this kind have obtained in some of the States; if such a law existed in South Carolina, it might have prevented this question from ever coming before us; but since this has not been the case, let us settle some general principle before we proceed to the presumptive proof arising from public measures under the law, which tend to give support to the inference drawn from such principles.

It is an established maxim that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general, place is the most certain criterion; it is what applies in the United States; it will, therefore, be unnecessary to investigate any other. Mr. SMITH founds his claim upon his birthright; his ancestors were among the first settlers of that colony.

It is well known to many gentlemen on this floor, as well as to the public, that the petitioner is a man of talents, one who would not lightly hazard his reputation in support of visionary principles: yet I cannot but think he has erred in one of the principles upon which he grounds his charge. He supposes, when this country separated from Great Britain, the tie of allegiance subsisted between the inhabitants of America and the King of that nation, unless, by some adventitious circumstance, the allegiance was transferred to one of the United States. I think there is a distinction which will invalidate his doctrine in this particular, a distinction between that primary

Contested Election.

allegiance which we owe to that particular so- It would not throw them back into a state of naciety of which we are members, and the second-ture. It would not dissolve the union between ary allegiance we owe to the Sovereign estab- the individual members of that society. It would lished by that society. This distinction will be leave them in perfect society, changing only the illustrated by the doctrine established by the laws mode of action, which they are always at liberty of Great Britain, which were the laws of this to arrange. Mr. SMITH being then, at the declacountry before the Revolution. The Sovereign ration of independence, a minor, but being a memcannot make a citizen by any act of his own; he ber of that particular society, he became, in my can confer denizenship: but this does not make a opinion, bound by the decision of the society, with man either a citizen or subject. In order to make respect to the question of independence and a citizen or subject, it is established, that allegi- change of Government; and if afterwards he had ance shall first be due to the whole nation; it is taken part with the enemies of his country, he necessary that a national act should pass to admit would have been guilty of treason against that an individual member. In order to become a Government to which he owed allegiance, and member of the British empire, where birth has would have been liable to be prosecuted as a not endowed the person with that privilege, he traitor. must be naturalized by an act of Parliament.