1806.

and by reference to a subjoined report of one of these com9th CONGRESS, mittees, and the documents accompanying it, which docu

1st SESSION.

Petition rejected.

ments appear to be seven ex parte depositions, not admissible in evidence, and not deemed proper to be considered as parts of the petition, by being generally referred to therein.*

"The committee are of opinion that on such a petition there can be no satisfactory trial of the merits of the election in question; and therefore recommend the following resolution: "Resolved, That the petitioner have leave to withdraw his petition, and the papers accompanying the same."

The House immediately took the resolution into consideration, and agreed to the same, without debate or division.

* IN PARLIAMENT.

John Luttrel, petitioner, vs. Sir Abraham Hume and Wm. Joliffe, Esq. October 31, 1775, petition presented, setting forth that at the last election of members to serve in Parliament for the borough of Petersfield, Sir Abraham Hume, Baronet, high sheriff for the county of Hereford, William Joliffe, Esq., and the petitioner, were candidates, and that the two former were returned as being duly elected; and the petitioner goes on to charge that this election was brought about by bribery and corruption, &c. and prays relief to the petitioner.

The counsel for the petitioner insisted that Hume, being high sheriff, was ineligible.

The counsel for the sitting members denied that it was competent for the other side to go into the question of the supposed ineligibility of Sir Abraham Hume, as sheriff of Hereford, "because there was no express allegation or complaint on that subject in the petition."

The words "high sheriff of the county of Hereford," it was said, appeared in the petition as an addition, or descriptio persona, and did not import an allegation that, because he was sheriff, he was therefore ineligible.

On consideration, however, by the committee, it was

"Resolved, That the counsel be not permitted to argue the ineligibility of Sir Abraham Hume as high sheriff of the county of Hereford, the same ineligibility not being an allegation in the petition." [See Douglas's Election Cases, vol. iv, case 25.]

By the Committee of Elections in Parliament,

"Resolved, That the evidence proposed to be given cannot be gone into, the matter not being alleged in the petition." [Douglas's Election Cases, vol. iv, p. 146.]

Mr. Williams and Mr. Blake having obtained leave of absence, Messrs. Marion and Kirkpatrick were, on the 26th of January, 1808, substituted in their places on this committee.

CASE XXVI.

JOSHUA BARNEY US. WILLIAM MCCREERY, of Maryland.

[The constitution of the United States having fixed the qualifications of members, no additional qualifications can rightfully be required by the States. Where two members were to be chosen from a district, and the State law required that one of them should be a resident of the town of B, and the other of the county of B, such law was held by the committee to be repugnant to the constitution, and therefore void; and the decision of the House seems to have affirmed this opinion.]

On the 30th of October, 1807, Joshua Barney presented to the House his memorial contesting the election of William McCreery, and making a claim, in his own behalf, to the seat occupied by him. By the report of the committee, made on the 9th of November, 1807, the facts appear to be as follows: The committee report:

"That, by an act of the Assembly of Maryland, passed Report of the in November, 1790, it is required that the member shall committee. be an inhabitant of his district at the time of his elec

tion, and shall have resided therein twelve calendar months immediately before.

"By another act of the Assembly of Maryland, passed in Election law of November, 1802, it is enacted that Baltimore town and coun- Maryland. ty shall be the fifth district, which district shall be entitled

to send two Representatives to Congress, one of which shall be a resident of Baltimore county, and the other a resident of Baltimore city.

"That Joshua Barney is a citizen of Maryland, and has been a resident of Baltimore city for many years.

facts.

"That William McCreery has been for many years a citi- Statement of zen of Maryland, and a resident of the city of Baltimore; but that, in the year 1803, he removed himself and his family to his estate in Baltimore county; that, from that time, though he himself has occasionally resided in Baltimore, yet

1807. he, with his wife and family, have not made the city their 10th CONGRESS, settled residence.

1st SESSION.

committee.

"That William McCreery states that his intention was, and Report of the still is, to reside with his family on his country estate in summer, and in the city of Baltimore in winter; but that, ever since he has removed his family to his farm, he has been obliged every winter, in the public service, to reside, and frequently with his family, in the city of Washington, which prevented him from removing his family, agreeably to his intention, to the city of Baltimore; but he resided himself in the city of Baltimore five or six days before the election; that he and his family were residing in the same situation, when he was elected to serve in the ninth Congress, that they were, when he was elected into the present Congress; that, however, not wishing to have been taken up as a candidate at the last election, he expressed to some of his friends some apprehensions that exceptions might be made on account of his constant family residence not being in the city of Baltimore.

Qualifications

the

"At the election in that district for the Congress now in session, Nicholas P. Moore had 6,164 votes; he is a resident in Baltimore county and William McCreery, against whose right to a seat in this House objection is made on account of residence, had 3,559 votes; and Joshua Barney, who claims a seat in this House, and it is admitted is a resident in Baltimore city, had 2,063 votes; and John Seat, also a resident in Baltimore city, had 353 votes. The above statement of facts being admitted by the parties, further evidence was not required. No question was taken on the legal residence of William McCreery in the city of Baltimore.

"The committee proceeded to examine the constitution of members with relation to the case submitted to them, and find that prescribed by the qualifications of members are therein determined, withconstitution, and can- out reserving any authority to the State Legislatures to not be varied change, add to, or diminish those qualifications; and that, by S'ate legis- by that instrument, Congress is constituted the sole judge of

lation.

the qualifications prescribed by it, and are obliged to decide agreeably to the constitutional rules; but the State Legislatures being, by the constitution, authorized to prescribe the time, place, and manner of holding the elections, in controversies arising under this authority, Congress are obliged to decide agreeably to the laws of the respective States.

"On the most mature consideration of the case submitted to them, the committee are of opinion that William McCreery is duly qualified to represent the fifth district of the State of Maryland, and that the law of that State, restricting the residence of the members of Congress to any particular part of of the district for which they may be chosen, is contrary to the committee in constitution of the United States: therefore, favor of the

Decision

"Resolved, That William McCreery is entitled to his seat in this House."

10thCONGRESS,

1st SESSION.

On the consideration of this report in a Committee of the 1807. Whole House, a debate arose, and was continued several days, and terminated at length by the recommitment of the report to the Committee of Elections. That committee, on the 7th December, 1807, submitted an amendatory report, in which they recapitulated, nearly in the same words, the facts set forth in the preceding one, as far as the clause terminating with these words, "no question was taken on the legal residence of William McCreery in the city of Baltimore." The remainder of the report was left out, and the following inserted :

port of the com

"When the report was recommitted, Joshua Barney al- Additional releged that William McCreery had declared himself not quali- mittee. fied to be elected, in terms that William McCreery refused to admit, and proposed to bring stronger proof against William McCreery's legal residence in the city of Baltimore. The parties went to that place to take testimony, which they have submitted to the committee; which is substantially as follows:

"Joseph H. Nicholson, in answer to interrogatories pro- Synopsis of tespounded by Mr. Barney, viz. timony submit

"First. Did any, and what, conversation pass between you and Mr. McCreery, as to his eligibility as a Representative to Congress, or between William McCreery, in your hearing, and what did he say?

"Second. Did William McCreery at any time, and when, to you, or in your presence and hearing, acknowledge or say that he had not a residence in the city of Baltimore, and did not consider himself eligible as a Representative to Congress? &c.

"To the first Mr. Nicholson answers, that, in the autumn of 1806, about six or eight days before the election for members of Congress, and he, Mr. Nicholson, hearing that doubts were entertained whether Mr. McCreery would consent to be a candidate, and inquiring on that point, induced a conversation relative to the election. Mr. McCreery said he had very reluctantly consented to serve, if clected, and regretted that some other person had not been fixed on, as he had understood that some objections were made to him, on account of his residence in the country, and was apprehensive that this would induce many persons not to vote for him, whose support he would otherwise have had. On being asked by this deponent, whether, at this period, his residence was not the same as at the antecedent election, and expressing some surprise that the circumstance of his residence now, more than then, should be an objection, as it had been overlooked before, Mr. McCreery, among other things, replied, that he had always taken care to hold a legal residence in the city of Baltimore, and went on to state how he had done so.

"In answer to the second interrogatory, Mr. Nicholson saith, that William McCreery did not at any time say to him,

ted..

1807. or in his hearing acknowledge, that he had not a residence 10th CONGRESS, in Baltimore city, or consider himself as not eligible.

1st SESSION.

"Edward Johnston, in answer to the same interrogatories, Substance of answers substantially as Mr. Nicholson had done, with this testimony, as difference, that the conversation took place previous to Mr. stated by the McCreery's election to a former Congress; and further, Mr. committee. Johnston says, it took place when himself, Mr. McElderry, and Mr. Dickson,waited upon Mr. McCreery, for the purpose of prevailing on him to become a candidate, when Gen. Smith accepted a seat in the Senate; when he appeared anxious to decline, and observed to them, that, as he intended to remove to the country with his family, he was apprehensive that he would not be considered as a suitable Representative, and informed them, at the same time, that he intended to keep a counting-house for transacting business, furnished with a bed and other conveniences for his accommodation. deponent and others assured Mr. McCreery that his contemplated residence would be no objection, and urged and prevailed on him to become a candidate; and that no other conversation ever passed between Mr. McCreery and himself, er in his hearing, on that subject.

This

"Samuel Walker testifies that, in 1803, Mr. McCreery having contemplated residing a considerable part of his time in the country, and intending to rent his dwelling-house, he, the deponent, agreed to accommodate Mr. McCreery at his dwelling-house; and that Mr. McCreery's family has resided twice a year, since that period, either at the house of the deponent, or at the house of Hugh Neilson; and that the deponent still does reserve a chamber for his use.

"Being cross-examined, he cannot say at what time, or how long, Mr. McCreery and family resided in his house, &c. They resided as friends.

"Hugh Neilson testifies that Mr. McCreery with his wife and niece made his house their place of residence when they came to Baltimore, where Mrs. McCreery and niece frequently stayed two or three months before, and during the session of Congress; that Mr. McCreery frequently visited during that time, and Mrs. McCreery and niece commonly went to Washington in December or January; that Mr. McCreery made his house his residence when he came to Baltimore on business, but kept a bed, desk, &c. at the store occupied by James C. Neilson: and that the deponent is brother-in-law to Mr. McCreery.

"Alexander Nisbet testifies that during the election, and some days before and after it, Mr. McCreery boarded at Mrs. Dysart's boarding-house, and slept there one night, and the other nights in the counting room.

"James C. Neilson testifies that Mr. McCreery rented the store to him, but reserved to himself the right of putting up a bed in the counting room, and of keeping a desk in it; that he put up a bed and slept in it about a week preceding