institute any other test of eligibility than is to be found expressed in the acts of Congress providing for and regulating the election of a Delegate. The office of Delegate is not one of constitutional, but of statutory creation, and the Delegate is not a Federal but a Territorial officer. He is not a member of the House. He is not, in a constitutional sense, a Representative; and the restrictions imposed upon the popular will in the choice of Representatives, therefore, do not reach in their operation to the choice of a Delegate by the People of a Territory. The allowance to the inhabitants of Florida of the privilege of having an advocate, or organ, of their wants and feelings upon the floor of the House, should meet in its enjoyment with no other restriction or limitation than has been expressly prescribed by law. The provision upon this subject is contained in the act of 1823, organizing a Territorial Government for Florida, (see sec. 15,) and reads thus:

"That the citizens of said Territory shall be entitled to one Delegate to Congress, who shall possess the same powers heretofore granted to the Delegates from the other Territories of the United States: Provided, That no person shall be eligible for that office who shall not have resided at least twelve months in the said Territory."

:

This then constitutes the test of eligibility, to wit: a residence of twelve months. If the qualifications prescribed by the Constitution for a Representative extended and attached to the office of Delegate, then the enlargement of the qualification of inhabitancy to a residence of twelve months was invalid and if this statutory qualification was valid, it was because the constitutional qualifications were not applicable. You might as well inquire into the age as into the citizenship of a Delegate. A residence of twelve months is the sole requisite of the statute creating the office, and the expression of this one excludes all others. So far as the question of citizenship is concerned, it is one of propriety only, addressing itself to the judgments and bosoms of the People electing, and of the Delegate elected.

Thus much I have regarded it my duty to say, lest by my acquiescence a precedent might arise in derogation of the legal rights of the People of Florida.

So far as I am personally concerned, I do not hesitate to waive this point. I shall treat the condition of citizenship as a necessary qualification for the office of Delegate, (because, whatever the law may be, it ought to be so.) I cannot, however, relinquish the convenience which belongs to regularity of proceeding.

In the first place it is to be remarked, that neither of the gentlemen who were opposing candidates in the canvass for Delegate has thought proper to appear in opposition to my right; nor does any other responsible person come forward to manage the objection to me. A protest, containing a misrepresentation of facts, and signed with names of persons, many of whom are not known to me as inhabitants or voters of Florida, is presented and referred to the committee, and by thus throwing into the House a charge, it is hoped that I will be subjected to the annoyance and expense of an elaborate statement and proof of facts. The committee, by the course of the protestants, if it proceeds at all, is left to take up the prosecution for itself; thus exposing it to become by possibility enlisted as a party, instead of being allowed to preserve that indifference as judges, which a simple hearing of legitimate proofs on both sides, and an impartial

weighing of the merits could not interfere with. Knowing as I do the motives of the actors in this matter, and that it has been embarked in with a design of annoyance and embarrassment to me, rather than with any hope of success, or regard for right, I cannot deem it consistent with a proper self-respect to go any farther in my attention to the objection that may be legitimately required. Under other circumstances I should have gone with freedom, upon the suggestion of a doubt only, into every particular of my case.

I see nothing among the papers presented which I can consent to admit as testimony, or which requires any thing more at my hands than to state that the rights of American citizenship accrued to me under the sixth article of the treaty of amity, settlement, and limits between the United States of America and the King of Spain, of the 22d February, 1819; and that my right under that treaty has been the subject of recent adjudication by the highest judicial tribunal of Florida, constituted of judges appointed and commissioned by the United States Government. An authenticated transcript of that decree I annex; and presume that the gravity of this judgment is sufficient at least to protect me from the necessity of making out my case again, until my right shall have been contested with witnesses examined in my presence, or after due notice. All that is now before the committee on the part of the protestants, is calculated to deceive and mislead them; and in entering upon a serious rebuttal of the charge under such circumstances, I should be doing injustice both to my constituents and myself.

Whenever a contestant of my right appears, and by testimony taken in a legitimate manner, a sufficient ground is presented, I shall be prepared to go into a full vindication of my qualification on the score of citizenship. As the case at present stands, I trust that the formal decree of the Court of Appeals of Florida will be deemed to carry as much weight as belongs to any thing presented by the protestants.

I owe it to myself to say, that to go into the establishment of the facts involved in this case, would subject me to an expense and trouble I am not willing to incur, and to which I ought not to be exposed upon light grounds.

I have the honor to be, respectfully, your obedient servant,
D. LEVY.

Hon. WILLIAM HALSTED,

Chairman Committee of Elections.

B.

SIR: I received your note, with a copy of the resolution adopted by the committee. I have hesitated as to the course I should pursue; being upon the one hand unwilling to withhold the frankest possible statement upon any subject connected with myself, about which a desire for information may be expressed from any quarter; and upon the other, equally unwilling that any rights which legitimately attach to me, should be waived otherwise than by my own voluntary motion.

I feel satisfied, from the tenor of the resolution, that the point of my communication and my object in presenting to the committee a transcript of the decree of the Court of Appeals of Florida, have been mistaken. It

was not furnished as "evidence of my being a citizen of the United States at the time of my election."

A review of the facts of the case, as it at present stands before the committee, will aid me in making more intelligible to them the point which I presented.

On the third day of May last I was chosen, by a decisive and undisputed majority, to be the Delegate of Florida for the next two years.

My credential as Delegate, made according to law, and duly authenticated, was presented, and is on file in the House of Representatives.

No notice was given me by any person, in compliance either with the statutes of Florida or of the United States, providing for such cases, of an intention to dispute my seat. (To the statutes of Florida I refer the attention of the committee specially.)

A bundle, stated to be a petition, with papers accompanying it, none of which I had ever seen, was presented in the House, without being read, and without specification as to what the papers consisted of, and referred to the committee.

No person appears before the committee, either as a petitioner or agent of the petitioners, to prosecute the complaint against me, or to sustain the allegations of the petition.

Neither of the opposing candidates come forward to take up and manage the case, although one of them, who received the next highest vote, was here present in the city, since the commencement of the session, and is now here.

Two of the persons who joined in signing a paper opposing my right, were present in Washington when they prepared and signed that paper; yet neither of them has attempted to sustain their charge.

Under these circumstances I was invited by the chairman of the committee to examine the papers, and prepare myself to appear before the committee.

Upon examination of them, the papers before the committee prove to be

1. Petitions asserting as facts, without any reservation, what, it is evident upon the very face of them, the subscribers could not know to be so, and in which they do not even state themselves to be electors.

2. Five newspapers, the partisan and virulent character of which was apparent, filled with misrepresentation of facts, and bearing marks with ink, which show that the purpose of their being filed was to enlist in the cause against me a political bias and personal prejudice.

3. Two or three private letters, one of them from an office-holder of the United States, which, upon perusal, will be found to discover, in some degree, the motive of this attack.

4. Two pretended extracts of private correspondence between opponents of mine and persons who, if they knew any thing, should have been examined, one of whom I understand has been in the city since the opening of the session, and the other is stated by a memorandum endorsed upon one of the letters, to be in New York ready to come forward. And,

5. Of a paper which purports to be an affidavit made in May, 1839, before a justice of the peace; which paper is etirely unauthenticated, and was never seen by me before its exhibition by the chairman of the committee.

Now, I could not permit myself to suppose that the committee would

even allow themselves to read the newspapers, or would regard, as entitled to any notice, the items designated as Nos. 2, 3, and 4.

The only items, then, that remained for their consideration were loose petitions, which bore upon their face the evidence of the recklessness of the petitioners, and an unauthenticated and gratuitous affidavit, made in May, 1839, which has never been seen by me before, and of which I never had notice.

My first presumption was that, considering the insufficient character of what was before them, the committee would not deem it worth their while to notice the subject, unless upon further and better showing on the part of the petitioners

The committee resolved that there was sufficient before them to require a formal answer from me.

The considerations that weighed with me in shaping that reply, were— 1. That, according to the established usage of the House, and of all tribunals having regard to the ordinary rules of justice, no man in the enjoyment of a right can be called to maintain it by proofs, until the legitimacy of its enjoyment is questioned by allegations specifically made, and supported by evidence taken with the knowledge and in the presence (if oral) of him whose right is to be affected.

2. That in proceeding to institute an inquiry, when no case was made out against me, and when none of the complainants, whose duty and in whose power it was to appear, had thought it worth while to do so, would expose the House to the danger of insensibly gliding into the attitude of prosecutors instead of judges, and that thus injustice to me might be the consequence, however remote such a disposition, or the consciousness of such tendency, might be from the minds of members.

3. That, in entering into a gratuitous proof and defence of my right, I would be improperly abstracting from the service of my constituents the benefit of that exclusive devotion of my time and attention to their business and interests which they have a right to expect, and the failure in which would deprive them of the avantage of representation, the Delegate being their only organ at Washington.

The reply, then, after protesting in behalf of my constituents upon a point of right, and waiving its benefit as to myself, alleged, 1. The absence of any testimony which required at my hands to be met and rebutted. 2. The manner in which my right of citizenship accrued. 3. That said right had been the subject of recent and direct adjudication by an impartial and competent tribunal. 4. That the decree of said court ought to have as much weight in my favor as the informal papers before the committee could have against me. And, 5. That, therefore, I ought not to be required to go again into the expense and trouble of an establishment of my right, until a sufficiently strong presumtive case was made out out against me, by legal evidence.

The decree of the court of appeals, then, was presented, not as evidence that I was a citizen, but as a fair resting ground to me, until the ease of the petitioners should be made out in a legal manner.

It appeared to me that, although it is important that the rights of petitioners should be regarded, it was also just that the rights and feelings of the sitting Delegate should not be disregarded, nor the interests of his whole constituency kept in abeyance, while the private feelings of a few, who, if

voters at all, had full benefit of their opposition at the polls, were being gratified.

By a different course, I am prevented of the opportunity, rightfully mine, of refuting the objectants with their own witnesses, and of giving an opening to such of them as may, from misapprehension or forgetfulness, have involved themselves in a mistake of fact, to discover and correct their error in the first stage of the inquiry.

A very material objection to an ex parte proceeding in this matter, which is the shape it assumes, when I am required to prove that a disqualification does not exist, before there is any proof that it does, was, as it struck my mind, that, as the reasoning and views of the committee would be developed of course in private only, I could have no opportunity of explaining, arguing, or meeting objections, unless I could, by anticipation, divine what difficulties might arise in their minds, or how far the misrepresentations of the papers before them might strike and affect their judgments, and be therefore worthy of contradiction.

Let me give an instance: The chairman informed me (if I did not misunderstand him) that the decree of the Court of Appeals seemed to have been made for express use in this contest, and with a view of concluding the committee in their judgment. Now this impression, it appeared to me, could only have arisen from the committee's giving too much credence to the assertion of one of the newspapers; and had I anticipated it, I could have informed them that the decree was made before I was nominated, or expected to be so, and that two of the three judges were the political supporters of one of the opposing candidates. But I scarcely deemed it necessary to vindicate, in advance, the purity and character of the highest tribunal of Florida, and one, too, established by the Government of the United States, or to defend them from the imputation of giving a formal judicial decree without full investigation, and the most satisfactory evi

dence.

Let me be allowed to present this additional view of the case :

The act of 1823 amendatory of that of 1822, organizing a Territorial Government for Florida, provides that the citizens of said Territory shall be entitled to one Delegate to Congress, who shall possess the same powers heretofore granted, &c.

This Delegate, then, is to be their officer, and they are to be the judges of his qualification, not the House, unless the act conferring the right, or the Constitution, reserves it to the House. The act does not; does the Constitution? That instrument provides "that each House shall be the judge of the elections, returns, and qualifications of its own members." But the Delegate is not a member. Where, then, do you seek the power? It may be answered, that it is a power inherent in the body. Admit it to be so, (though if it exists anywhere it is clearly in Congress, which made the law, and not in one House alone.) Yet I submit whether that power ought not to be exercised with reference to the laws of the Territory providing the mode in which the person they select under the grant of privilege from. Congress may be impeached of his right to represent them. The laws of the Territory point out a mode in which any person objecting to the right of a Delegate elect to take his seat shall proceed. I will annex a copy of the provision.

Again a reference to that provision of the laws of Florida above referred to, will exhibit to the committee another reason why it is scarcely