Article 1, Section 5, Clauses 1--4

Document 16

Senate, Contested Election of Mr. Gallatin

[20 Feb.]

Mr. Gallatin accordingly rose and recapitulated the facts stated in the written paper which he had presented to the President, commenting on each of them as he proceeded. He proved that he had been an inhabitant of the United States for thirteen years, and was one before the Peace of 1783, and before the Confederation. He quoted the laws previous thereto respecting aliens, and also the British statutes, and he maintained that they were all done away by the Revolution. He conceived himself a citizen in common with the other citizens of the United States, from the time of his first qualifying after his arrival and attachment to the country. He concluded by saying, he would reserve the remainder of his defence until after he should hear the counsel on behalf of the petitioners.

Mr. Lewis commenced his speech by observing, that he appeared there on behalf of Conrad Laub, and other respectable men, who complained of the unconstitutionality of admitting Mr. Gallatin to a seat in the Senate. He was glad to find, by the gentleman's expressions, that the ground of debate had been narrowed into so small a compass, and he would therefore take him up from the argument where he had left off speaking, that of his being a citizen in common of the United States, from the time of his qualifying in Massachusetts or Virginia. But in Virginia two oaths are required, and they must be taken in a Court, not before a Magistrate, to entitle a man to citizenship. He must also be possessed of a certain quantity of property and be a resident for two years. It appears Mr. G. did not remain in Virginia more than two months. [Here Mr. Lewis read the law of Virginia of the 20th October, 1783.] On this law Mr. L. argued that Mr. G. had not gone through the necessary qualifications to entitle him to citizenship there; and he observed, that he admired the gentleman's candor in not insisting on it here. In this State he had certainly not qualified himself agreeably to the law. Under these circumstances, Mr. L. for his part could never admit of the gentleman's right to citizenship so far back as to entitle him to the suffrage of a vote for a seat in the Senate, &c.

The mischievous consequences of permitting such innovations, he represented in strong terms; and he called to the recollection of the Senate, the conduct of ancient and modern Governments on this question. One of the ancient Republics made it death for an alien to intermeddle in their politics. The sentiments of antiquity, and those of men in modern days, proved the justice of these conclusions.

With regard to the arguments of the gentleman respecting his being entitled to be a citizen of the Union, or of any individual State of it, because he had qualified himself to be citizen of one of them, Mr. L. said, was a mere bubble, for surely the gentleman was not one of the mass of citizens at the accomplishment of Independence.

The doctrine of the old law, which the gentleman says was done away by the Revolution, in respect to aliens, may have been so with regard to the British King; it was still, however, virtually in force against the gentleman. But supposing it to be done away, how do the Constitutions of the different States stand on this head? Is it not implied by all of them, that certain oaths, residence, and property, make the requisites to form citizenship? In Massachusetts, a foreigner is not a citizen without he complies with those terms. [Here he quoted p. 70 of the small volume of the Laws of Massachusetts. He also cited the act in favor of John Jarvis and others; also, p. 104 of the same book, and p. 191 and 192.] From these he maintained, that no such wild idea was ever contemplated by either the law of Massachusetts or Virginia, as to admit foreigners or persons from other States to citizenship, immediately on their entrance within their limits.

The situation of the sitting member, with respect to the Constitution and laws of Pennsylvania, he had little doubt was similar to what he had mentioned in regard to the other States, although he would not assert it as a fact. [He read the 42d section, and also in p. 43 of the Law of Pennsylvania, [Volume 2, Page 302] 13th of March, 1789, a proviso which contains some precautions requiring records to be kept by the Master of the rolls of the persons admitted to citizenship.] The same principle pervades all the States as well as it does the Constitution of the United States. The absurdity of applying it in any other sense, was severely pictured by Mr. L., and to admit the idea advanced by the sitting member, was as inadmissible as it was novel. In support of what he wished to impress on the minds of the Senate, Mr. L. quoted the 1st vol. of the Journals of Congress in 1774 and 1775, p. 28 and 29. He then recurred to Blackstone, vol. 1, p. 63, 64, and 69; also 73 and 79.

It was not his intention to quote the Parliamentary Laws of England in support of any thing, but such parts of their Common Law as could be got over. That Common Law of England which was imported by our ancestors, and handed down to them by the People, not the Parliament. The People had made the Common Law, from time to time. The Saxons, Normans, &c., were all concerned in making and improving it, until it had finally reached that degree of perfection in which it was given to us by our ancestors, and it was founded in wisdom and justice.

Mr. L. next quoted, first Blackstone, 402, which was one of the British laws that had never been admitted in this country, and which, he hoped, never would, viz: that wherein the distinction is drawn between the Commoner and the Peer, an oath being required of the Commoner, upon all occasions, and no more than "upon my honor," from a Peer, except in giving evidence in civil or criminal trials.

Mr. L. concluded, by saying that the difficulties which stood between Mr. Gallatin and his seat, were insurmountable and could not be removed without showing a law of Massachusetts, Virginia, &c., repealing those laws in regard to the qualification of citizens, which he had mentioned, but which repeal he was certain did not exist. He therefore stated, that to insist upon the gentleman's right to a seat, was both novel and absurd. These were his opinions, which he had given in a perfectly extempore way, not having been allowed time, nor expecting to meet the subject on the new ground which it had this day taken in the Senate.

[21 Feb.]

Mr. Gallatin commenced his defence by laying down the principles on which he intended to argue. His was a very serious situation, for a person to be placed in, who had been so long in America, and who had mingled with the inhabitants in the common cause, that he should afterwards be called before so solemn a tribunal, with an intention to wrest from him his right of citizenship. He confessed, that on this occasion his feelings were deeply interested, particularly as the manner of the counsel for the prosecutors was so personal, and went not only to deny him a seat in the Senate of the United States, but even to contest his citizenship, and denounce him as being yet an alien.

This was a matter of consequence to many thousands as well as himself, who have long considered themselves in possession of all the privilege of denizens, and yet may be deprived of their rights, if the doctrines of the counsel for the prosecutors should obtain any sanction from the body who were now to judge of its merits.

Mr. G. entered into a series of observations on the various points of law, &c., which had been adduced by Mr. Lewis, and he particularly remarked, that the Common Law of England was entirely inapplicable to the subject under consideration. He read the laws of Virginia respecting naturalization, &c., from which he insisted that he had long since become a citizen of the United States. He also quoted 1st Blackstone, p. 374, and Viner's Abridgment, vol. ii. p. 266, respecting the different acceptations of denizen and citizen, and he went back so far as the British statutes in 1740, to show the intention of the old Government was to naturalize all persons who would go and reside in the Colonies. He next mentioned the act of Pennsylvania, of 31st of August, 1778, and commented on the principles generally entertained by most writers on the subjects of allegiance and citizenship. Blackstone, 266, &c.

An alien is a man born out of the allegiance of the King. But allegiance in England is not an allegiance to the country or to society, as it is understood in this country.

In order to explain the principle of reciprocity, he observed, that when the two crowns of England and Scotland were united under James, the inhabitants of Scotland became naturalized in England, as if they had been natural-born subjects of that country. The allegiance in Britain was personal to the King, and it has there this remarkable quality, that by the British laws allegiance can never be shaken off.

This country, before the Revolution, owed allegiance to the King, but that was destroyed by the Declaration of Independence, and then the inhabitants of the States became mutually citizens of every State reciprocally; and they continued so until such time as the States made laws of their own afterwards respecting naturalization.

As soon as separate Governments existed, allegiance was due to each, and here the allegiance was a reality, it was to the Government and to society, whereas in Britain it is merely fictitious, being only to one man.

Every man who took an active part in the American Revolution, was a citizen according to the great laws of reason and of nature, and when afterwards positive laws were made, they were retrospective in regard to persons under this predicament, nor did those posterior laws invalidate the rights which they enjoy under the Confederation.

Mr. G. here mentioned his having been an inhabitant of Massachusetts, before October, 1780, and he also observed, that the law passed in that State was decisive against the Common Law of England.

In quoting the laws of Massachusetts, which were passed in 1785, and afterwards, for naturalizing John Gardner, and James Martin, he remarked that they clearly implied that even a natural born subject, who had not acted in the Revolution, and an absentee, was not entitled to citizenship. He likewise took notice of the case of Mr. William Smith, of South Carolina, against whose election as a Representative in Congress, a petition was presented by Doctor Ramsay, although the decision of South Carolina on [Volume 2, Page 303] that subject was exactly the reverse of Massachusetts.

In speaking of the difficulties that occurred in explaining the terms citizen and alien, he ran over a number of cases, and asked whether if a person had arrived in the United States during the war, from Nova-Scotia, or elsewhere, and had taken an active part against the enemy, would he not be better entitled to the right of a citizen, than even those who afterwards subscribed to the acts? The counsel for the prosecutors had admitted that a person who had been one of the mass of the people, at the Declaration of Independence, was a citizen. On the same principle, until a law passes to disprove that a man who was active in the Revolution previous to the Treaty of Peace, was a citizen, he must be one ipso facto.

Mr. G. next read a quotation from the 1st vol. of Woodison, p. 382, an English writer, who acknowledged that all persons were aliens at the recognition of Independence, and that is a more liberal construction than the counsel for the petitioners would admit of, for by his construction, our sailors, &c., ought to be naturalized, lest they be alarmed by the British.

The new Constitution of the United States requires certain qualifications for members of Congress, &c., but it does not deprive persons of their rights who were actually citizens before this Constitution was ratified that made the States the United States. They were united by consent before, and consequently he was one of the people before the United States existed.

He went on to read from the Constitution of Massachusetts, and several other States, sundry clauses in support of his reasoning, and recapitulated the several heads of Mr. L.'s arguments, to each of which he replied.

Mr. G. said, that Mr. Lewis was unfortunate in producing the law of Pennsylvania, for, by proving too much, he had proved nothing, for the 42d sec. of the Constitution is retrospective, and by acknowledging the Articles of Confederation to be the supreme law of the land, persons who were reciprocally citizens before, are still left in full possession of the right.

So far from any dangerous consequences arising on my construction of citizenship, said he, I think it must be evident, that there is more danger and absurdity in the counsel's own constructions. For, in remarking on the policy of nations, we find even slaves have been enfranchised by the great Republics in times of common danger. The policy of America should be to make citizenship as easy as possible, for the purpose of encouraging population; even during the British dominion that was a principle laid down, and afterwards it was attempted to be varied; it is made one of the principal subjects of complaint in the Declaration of Independence, where it is expressly said, that the King endeavored to prevent the population of these States, by having laws made to obstruct the naturalization of foreigners.

If there was any dangerous consequences to be apprehended from the former regulations on this subject, they are all remedied by the new Constitution.

Therefore, no ill consequence or absurdity can follow. The author of the Federalist supports this principle in vol. ii, p. 54, for he says, that it is a construction scarcely avoidable, that citizens of each of the States are mutually so in all of them.

The first words in the Constitution, "We, the People," furnished another argument in support of Mr. G.'s principles, which he turned to great advantage, still drawing an inference to show that Mr. L.'s construction of the subject was most liable to difficulties and to mischievous consequences.

He concluded by observing, that if there was any disfranchising clauses in the Constitution of the United States, tending to deprive citizens of antecedent rights, all such clauses must be construed favorably, and were evidently on his side. With regard to a sentence that had been added, by the advice of counsel, to the affidavit of Pelatiah Webster, he made some remarks which tended to establish his own personal character, which he trusted would be found, when traced back to his nativity, to stand the test; and that his right to a seat in the Senate would also stand upon an equally just foundation.

Mr. Lewis denied having ever seen the affidavit of Mr. Webster, until it was shown him at the time the examination before the Committee was going forward.

Mr. Gallatin recriminated, that the clause of which he took notice, was not in the affidavit when Mr. Webster brought it to the Committee, and that he had permitted it to be added with great reluctance. It was only the recital of a few words which passed between Mr. G. and Mr W. in jest, some years since, wherein Mr. G. had ironically said his name was Sidney, probably alluding to some essays that had appeared in the newspapers under that signature, which have been generally attributed to the pen of another gentleman in this State.

Mr. Jackson, in order to bring the merits of the subject directly before the Senate, said he would move a resolution, that would have that effect; but upon Mr. Lewis's observing, that he had not yet closed his arguments, and at the instance of Mr. Butler, from South Carolina, who said he would second Mr. Jackson's motion hereafter, it was withdrawn for the present.

Ordered, That the further consideration thereof be postponed until to-morrow.

[22 Feb.]

The Senate resumed the consideration of the report of the committee on the petition of Conrad Laub, and others, respecting the election of Mr. Gallatin to be a Senator of the United States.

The greater part of the day was taken up by Mr. Lewis's pleadings, wherein he entered into a very extensive field of reasoning, and quoted a great number of authorities, in support of the principles on which he had set out last Thursday, and to prove that in the true sense of the Constitution of the United States, as well as of that of the State of Pennsylvania, Mr. Gallatin was not duly qualified for the office of a Senator, and therefore, he trusted that the honorable Senate, upon mature reflection, would vacate his seat.

Mr. Gallatin closed his defence in a short speech, wherein he quoted Vattel. p. 167, and explained the 42d section of the Constitution of Pennsylvania, the liberal [Volume 2, Page 304] construction of which, he said, was in his favor, and the construction contended for by the counsel, absurd. He finished by reading a passage from Lord Bacon's works, to show that where there is any doubt in the laws, it should operate in favor of the defendant, and he accordingly made no doubt but that the Senate would validate his election.

[28 Feb.]

On motion to adopt the resolution as follows:

"Resolved, That the election of Albert Gallatin to be a Senator of the United States was void, he not having been a citizen of the United States the term of years required as a qualification to be a Senator of the United States:"

It passed in the affirmative--yeas 14, nays 12, as follows:

Yeas.--Messrs. Bradford, Cabot, Ellsworth, Foster, Frelinghuysen, Hawkins, Izard, King, Livermore, Mitchell, Morris, Potts, Strong, and Vining.

Nays.--Messrs. Bradley, Brown, Burr, Butler, Edwards, Gunn, Jackson, Langdon, Martin, Monroe, Robinson, and Taylor.

The Founders' Constitution
Volume 2, Article 1, Section 5, Clauses 1--4, Document 16
http://press-pubs.uchicago.edu/founders/documents/a1_5s16.html
The University of Chicago Press

Annals of Congress. The Debates and Proceedings in the Congress of the United States. "History of Congress." 42 vols. Washington, D.C.: Gales & Seaton, 1834--56.