Volume 18 — ELIGIBILITY TO THE SENATE: QUESTION OF INHABITANCY.

Remarks in the Senate, on the Admission of General Adelbert Ames as a Senator of Mississippi, April 1, 1870.

MR. PRESIDENT,—I hesitate to say a word in this debate. The question has been exhausted on both sides, and to me, I must be pardoned for saying, it is infinitely plain. It is plain in law; it is plain in fact. When I say it is plain in law, I believe all the Senate on both sides will concur,—for, indeed, the Senator from Ohio [Mr. Thurman] stated the law precisely as I understand it.

We all know that in topography there are what are called water-sheds, sometimes high, sometimes low, and from these elevations flow in opposite directions the currents which there find their fountains. Sir, the water-shed of this debate is found in the intent; and this water-shed may be high or low. Suffice it that it is a water-shed; this is enough. Suffice it that the intent appears; and this is all that is required, in order to determine the character of the residence. Show me a citizen actually in a State, then the intent to remain fixes his inhabitancy.

The Senator from Illinois [Mr. Trumbull] substantially admitted this rule of law. I agree with him that there are but two things to be shown: first, what the old books call the factum, and, secondly, what the same old books call the animus. What is the factum? It is residence. What is the animus? It is intent to stay. Now in point of law you can add nothing to these. You may argue till doomsday, you may cite authorities without number, but you can add nothing to these two simple requirements, residence and intent.

Mr. Thurman. Will the Senator allow me to interrupt him?

Mr. Sumner. Certainly.

Mr. Thurman. As he has referred to my statement of the law, I will say that I did state that those were the two things necessary, residence and intention,—that you want to find out what is residence that creates inhabitancy, and what is intention that creates inhabitancy; and what I said was, and I maintain yet, that a residence which is enforced is no residence, and an intention that the party has no power to execute so long as he remains in the Army is no intention at all: an intention that the party has no power to execute has no virtue whatever.

Mr. Sumner. Very well,—I will come to that. The Senator and myself agree that in point of law there are two things to be established, and only two,—residence and intent. The question that remains is one of evidence; it is not a question of law. If the Senator were on the bench, which he once adorned, he would be obliged to charge the jury in this way. The rule of law is positive. All that remains comes under the head of evidence. Now I say by law you must show those two things, residence and intent, and you cannot add to either a tittle.

On this occasion, the most important requirement is that of intent. This is the requirement that has been most argued. And here I go back to that original Latin phrase which dominates this case, and which is in itself an all-sufficient rule: I mean the animus manendi. Why is this phrase, so often repeated, handed down for successive centuries? Simply because, like maxims of law, or like proverbs, it contains in one short phrase a rule. You have there a chapter of jurisprudence, if you please, or a volume. It is the mind, or the intent to remain, which governs. This is all that the law says. The law does not go forward and require, as the Senator from Illinois has argued to-day, that there must be an act. You find no such requirement in the rule. The rule is explicit, precise; and here I challenge contradiction. It is simply the intent to remain, the animus manendi. Step beyond that and you are lost, if you undertake to state the law. There is no rule of law outside of this simple sum-total.

I come, then, to the point that we have before us, simply a question of intent. I might cite authorities here. I have some of them before me. I will read one. For instance, here is Vattel, quoted by Judge Story in his article on Domicile in the “Encyclopædia Americana,” which Senators familiar with this subject know is of authority:—

“Vattel seems to define it to be a fixed residence in any place with an intention of always staying there.”[4]

On this Judge Story very properly remarks:—

“This is not quite accurate. It would be more correct to say that that place is the home or domicile of a person in which his habitation is fixed, without any present intention of removing therefrom.”

Here are words completely applicable to the case now before us. The learned author then proceeds to say:—

“It is often a mere question of intention.”

And then adds:—

“The mere dwelling or residence in a place is not of itself sufficient to make it the domicile of the party. He must be there with the intention of remaining, animo manendi.”

Mark the old recurring phrase, with its light and limitation. Here again I say is the rule. You cannot go outside of it. If you go outside of it, you are lost. I am speaking of the rule of law. I know that there can be no addition to that, because, if you do undertake to add to it or to take from it, you must depart from the jurisprudence of every civilized country,—not only of our own country, not only of England, but of every civilized nation on the continent of Europe. In the jurisprudence of every one of those countries you will find this same distinct, precise, simple rule.

Now, Sir, allow me to say,—I say it with entire respect,—the confusion in this debate has arisen from confounding the rule of law with the evidence under that rule. The rule, I say, is precise, that there must be intent. But how shall the intent be proved? Sometimes in one way, sometimes in another; sometimes by long-continued residence,—by purchase of property,—by the establishment of a home,—by the establishment of a place of business,—by all those circumstances and incidents which show fixity of purpose. All this comes under the head of evidence. It does not touch the rule of law behind.

The Senator from Illinois says there must be an act. Allow me to say that words are sometimes acts, and especially if associated with important events. It is a familiar phrase of law that language enters into what we call the res gestæ; language is welded into the transaction and becomes a part of it. Words then become things; and when were words more things than when the commanding general in Mississippi distinctly declared his purpose to resign his commission in the Army of the United States and accept a nomination as Senator? Here was a declaration constituting part of the res gestæ, and in itself an act.

I am not speaking merely on theory. I have in my hand a case, which I think, when I read it, you will see is applicable: I refer to Metcalf’s Reports, volume three, page 200, the case of Kilburn v. Bennett. In the statement of facts is the following passage:—

“For the purpose of showing with what intent the defendant went to Tyngsborough on the 27th of April, he offered to prove that about three weeks before that day he told S. Shattuck, in whose house he then resided, that he should leave Groton before the 1st of May, and remove with his family to Tyngsborough, to reside at his brother’s, and make his house a home, until he should go to Illinois. But the judge ruled that the evidence was inadmissible, and rejected it.”

The case was carried before the full bench, when the ruling of the judge below was set aside, and the Court observed as follows:—

“The Court held that this, being the mere declaration of the defendant, was not competent evidence in his favor, and it was rejected. The general rule undoubtedly is, that a party cannot give in evidence his own declarations in his favor, unless they accompany some act, and are a part of the res gestæ. But it appears to us that the declarations offered to be proved are within the qualification of the rule. They were made in the ordinary course of business, and in relation to the defendant’s removal, and they were made to the owner of the house in which he was at the time residing. This giving notice of his intended removal is to be considered an act which he might prove in any case in which it became material; and if so, all that he said explanatory of his intention in relation to his removal seems to us to be admissible in evidence.”

Now on the authority of this case it seems to me that the declaration of General Ames, accompanied by the acceptance of candidacy as a Senator, is clearly an act. But I do not argue that the Senate is now bound by any technical rule of this kind. It is enough if the Senate is satisfied with regard to his intent on the evidence adduced. No rule of limitation or exclusion can prevail. If the Senate believes that he had at the time the animus manendi, it must act accordingly.

Is the Senate, on the evidence before it,—without the application of any technical rule of evidence, without recognizing his declaration as part of the res gestæ,—is the Senate satisfied that at the time named he intended to reside in Mississippi? This is the whole case. On this question of fact each Senator will judge for himself, on the evidence before him. This evidence I will read in the Report of the Committee, being the language of General Ames in a written statement to them, as follows:—

“A number of persons in Mississippi visited this city to find arguments by which I might be influenced to become a candidate. I hesitated, because it would necessitate the abandonment of my whole military life. Finally, for personal and public reasons, I decided to become a candidate and leave the Army. My intentions were publicly declared and sincere.”

On which the Committee remark:—

“The intentions thus declared were not only to become a candidate for the Senate, but to remain and reside in Mississippi.”[5]

Sir, what more can you ask? On the report of your own Committee you have explicit evidence of the intent of General Ames to reside in Mississippi; and where intent is enough, you need add nothing to it. There is no necessity for any act beyond this declaration, which, as I have already said, is in itself an act, as the Senator from Michigan [Mr. Howard] says, taken in connection with his personal presence on the spot,—and I would add, taken in connection with all the necessary implications from his position, and from his acceptance of the candidacy. This is not a case in a justice’s court, or even in a county court. This is the Senate of the United States; and we are considering the evidence with regard to the declarations of a gentleman already chosen by a State of this Union to take his seat among us. We cannot apply to these declarations any technical rule which possibly might be applied in an inferior tribunal. We are to look at the case in its essence, and, if satisfied of the intent, we cannot go further. The Senate does not sit in chains. It may act according to its conscience on the evidence, without any constraint, except from the rule of law requiring intent.

Much stress has been laid upon the fact that General Ames held a commission in the Army of the United States, and was actually the military commander and provisional governor of Mississippi. What then? Does this affect his position now? Is a soldier or officer in the Army, is the commander of an army, shut out from the same privileges that belong to you, Sir, and to me? Each of us may change his domicile as he pleases, and to-morrow or next week transfer his home to another State of the Union, and nobody can say, No. Has the soldier or the officer fewer rights than you and I have? I think not; and I am sure that both reason and authority sustain my conclusion. I have in my hands a volume of the California Reports,—the twenty-eighth volume. I call attention to the case of The People v. William Holden, and I will not trouble you with anything more than one clause from the marginal note, as follows:—

“Residence while in the service of the United States.—The clause in the Constitution of this State, which declares that ‘no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States,’ does not prevent a person who removes to a county while in the service of the United States from acquiring a residence in that county while in the said service, if it is his intention so to do.”

“If it is his intention so to do.” These words are strictly applicable to the case of General Ames. There was nothing in his service in Mississippi, nothing in his high military command, to prevent him from establishing an inhabitancy in that State, if it was his intention so to do.

Thus at every point are we brought back to the single rule of law and the evidence under it,—the rule being that there must be an intent to remain, and the evidence being open to the judgment of the tribunal before which the question is raised. Especially must this be the case with the Senate, which will look through all technicalities, all cobwebs, to find the truth. Nor can the Senate be so unjust to any class of citizens as to say that a military commander may not acquire inhabitancy in a State where he is fixed by military duties, provided he so intends. All the adverse presumptions from military residency will be overcome at once by the animus manendi, so soon as this is proved.

Do you remember, Sir, a pointed remark made by Lafayette in the French Chamber, shortly after Louis Philippe was crowned King? Astonishment was expressed that the great defender of Liberty should espouse the cause of a Bourbon and help him to the throne. Lafayette, with remarkable condensation of phrase, replied, that he was in favor of Louis Philippe, not because, but notwithstanding he was a Bourbon,—“not because, but notwithstanding.” And in this famous saying of the great French-American you have terms strictly applicable to this case. General Ames, soldier, officer, military commander in Mississippi, became an inhabitant thereof, not because, but notwithstanding he was soldier, officer, and military commander.

A resolution of the Committee on the Judiciary, declaring General Ames “not eligible,” was on motion of Mr. Sumner amended by striking out the word “not,”—Yeas 40, Nays 12,—and thus amended was agreed to without a division.