REPORT, &c.

The Attorney-General, in obedience to the resolution of the Senate, requiring "his opinion, whether under the Constitution of this State, a member of the Legislature is eligible to the office of Senator in the Congress of the United States," respectfully submits the following

REPORT:

The President and Vice-President, and Senators and Representatives in the Congress of the United States, although appointed by the States, are officers of the general government. Those offices are created, their tenures declared, and the qualifications of the persons to fill them are prescribed, by the Constitution of the United States. That instrument also directs the manner in which those officers shall be elected or appointed. The President and Vice-President are to be chosen by electors, which "each State shall appoint in such manner as the Legislature thereof may direct." Senators are to be "chosen by the Legislature" in each State. Representatives are to be "chosen by the people." And "the times, places and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof." [Const. U. S. Art. I. Sec. I. to V. Art. II. Sec. I. Amendment XII.] Upon all those matters the Constitution of the State of New-York is silent, unless a provision hereafter to be noticed indirectly affects the qualifications of a Senator in Congress.

no person

The Constitution of the United States declares that " shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State for which he shall be chosen." The question is, whether the Constitution of this State (supposing such a right to exist) has added to these 'disqualifications the further one, that the person shall not be a member of the State Legislature.

The only provision from which such a disqualification can be inferred, is the following: "No member of the Legislature, shall re

ceive any civil appointment from the Governor and Senate, or from the Legislature, during the term for which he shall have been elected," [Const, N. Y, Art, I, Sec, X.]

There can be no doubt that the office of Senator in Congress, is a civil office; and the person to fill it is elected by the Legislature. Still it is believed that the words, "any civil appointment," were not intended to extend to the office of Senator in Congress.

First, The use of general words in the State Constitution in relation to offices and officers, broad enough in their signification to include officers of the general government, does not necessarily establish an intention to include such officers. On the contrary, several examples may be given, where general words must necessarily be restricted to offices created by or under the Constitution of this State. "All officers holding their offices during good behavior, may be removed by joint resolution of the two Houses of the Legislature.' [Art, I, Sec. XIII.] The words "all officers" are sufficiently compre hensive to include the officers of the general government: and yet no one would think of removing the Judges of the Supreme Court of the United States by joint resolution of the two Houses of our Legislature. "The Governor shall nominate by message in writing, and with the consent of the Senate shall appoint, all judicial officers." [Art, IV. Sec. VII.] But this must be understood of judicial officers under the Constitution of this State. "No minister of the gospel-shall be eligible to, or capable of, holding any civil or military office, or place within this State." [Art. VII. Sec. IV.] This provision must be limited to offices under our Constitution, for there can be no doubt that a minister of the gospel may hold an office under the general government, the duties of which are to be discharged within the State of New-York,

The language in these several examples is as comprehensive as is that of the tenth section of the first article. Still the cases are not parallel and the examples are only given for the purpose of showing that the words, "any civil appointment," do not necessarily evince an intention to exclude a member of the Legislature from the office of Senator in Congress,

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Second. The office of Senator in Congress is not held by pointment," but is conferred by election. Such is the uniform lan, guage of the Constitution of the United States; and it is applied alike to Senators and Representatives,

All legislative power is vested in "a Congress of the United States, which shall consist of a Senate and House of Representatives." "The House of Representatives shall be composed of members chosen every second year by the people of the several States." A representative must, "when elected, be an inhabitant of that State in which he shall be chosen." Senators are to be "chosen by the Legislature" of each State. When assembled, "in consequence of the first election, they shall be divided into three classes—so that one-third may be chosen every third year," A Senator must, "when elected, be an inhabitant of that State for which he shall be chosen." "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 places of choosing Senators." "Each House shall be the judge of the elections, returns and qualifications of its own members." "No Senator or Representative shall, during the time for which he was elected." [Const. U. S. Art. I. Sec. I. to VI.]

All the laws passed in this State in relation to Senators in Congress, have adopted the same language. In July, 1789, a bill passed the two Houses of the Legislature, entitled "An act prescribing the manner of holding elections for senators to represent this State in the Senate of the United States." This bill was returned by the Council of Revision, with objections, and was lost. [Assembly Journal, 1789, p. 21.] The first act on this subject was passed in 1793, and is entitled "An act for prescribing the times, places and manner of holding elections for Senators to represent this State in the Congress of the United States of America." [3 Green. laws 21.] The act of 1801 was substantially like that of 1793. [1 R. L. 1801, p. 199.] This act was continued in the next revision of the laws. [1 R. L. 1813, p. 142.] In the Revised Statutes, the office of Senator in Congress is provided for in chapter VI. "Of Elections, other than for militia and town officers." Title VI. of that chapter is entitled "Of the election of Representatives in Congress, Electors of President and Vice President, and Senators in Congress." Article IV. is entitled "Of the election of Senators in Congress:" and it speaks of the time for which a Senator "was elected," and directs that "an election shall be held." In case of a vacancy, "another Senator shall be elected in his room." "Such election shall be made by the Legislature, in the following manner." [1 R. S. 126, 145, 148.]

This reference to the laws establishes, that the Legislature has always noticed, and followed the language of the Constitution of the United States in relation to the manner of filling the office. And it is not to be presumed, in the absence of all evidence of the fact, that the Convention, in deliberately settling the frame of our government, overlooked the Constitution of the United States, and the whole course of our legislation on this subject.

It is also worthy of remark, that a distinction is taken in the Constitution itself, between appointments and elections to office by the Legislature. "The Secretary of State, Comptroller, Treasurer, Attorney-General, Surveyor-General, and Commissary-General, shall be appointed as follows: the Senate and Assembly shall each openly nominate one person for the said offices respectively: After which they shall meet together, and if they shall agree in their nominations, the person so nominated shall be appointed." [Art. IV. Sec. VI.] "All votes for any elective office given by the Legislature or the people." [Art. V. Sec. VII.]

When, therefore, the framers of the Constitution in the section under consideration, speak of a "civil appointment from the Legislature," they must have intended the appointments which they had directed to be made in that form: and it would be going very far to say that it was also intended to exclude a member of the Legislature from the elective office of Senator in Congress.

Third. Whatever doubts may be entertained about the true construction of the tenth section when considered alone, the following section leaves little room for question, that the framers of the Constitution did not intend to disqualify a member of the Legislature from receiving the office of Senator in Congress. "No person being a member of Congress, or holding any judicial or military office under the United States, shall hold a seat in the Legislature. And if any person shall, while a member of the Legislature, be elected to Congress, or appointed to any office civil or military under the government of the United States, his acceptance thereof shall vacate his seat." [Article I. Section XI.]

Although the words "member of Congress," and "elected to Congress," are in common parlance applied more particularly to Representatives, it has already been seen that in the Constitution of the United States, and the laws of this State, those words apply as