صور الصفحة
PDF
النشر الإلكتروني

to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or any particular profession of religious faith.1

2

§ 623. 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 those 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 legislature 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 monied qualification, 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 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

1 The Federalist, No. 52.

21 Tucker's Black. Comm. App. 213.

sole object of dissolving the Union, create qualifications so high, and so singular, that it shall become impracticable to elect any representative.

§ 624. 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 qualifications 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.1 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 over confident." * He intimates, however, that unless the case be either

2

1 1 Tucker's Black. Comm. App. 213. 24 Jefferson's Correspondence, 238. 3 Mr. Jefferson.

4 Jefferson's Correspondence, 239.

clear or ur turbed.1

,

it would be better to let it lie undis

§ 625. It does not seem to have occurred to this celebrated statesman, that the whole of this reasoning, which is avowedly founded upon that 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? 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?

§ 626. 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 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 recognised it. No state can say, that it has reserved, what it never possessed.

1 4 Jefferson's Correspondence, p. 239.

§ 627. Besides; 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, &c. 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 to 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.

§ 628. 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.

§ 629. The next clause of the second section of the first article respects the apportionment of the representatives among the states. It is as follows: "Represen"tatives and direct taxes shall be apportioned among "the several states, which may be included in this "Union, according to their respective numbers, which "shall be determined by adding to the whole number of "free persons, including those bound to service for a "term of years, and excluding Indians not taxed, three"fifths of all other persons. The actual enumeration

« السابقةمتابعة »