teen other States, however, have deemed it necessary to specify citizenship in the United States as a qualification. Thirty require a man to have been a citizen, inhabitant, or resident of the State for periods varying from one to seven years, New Hampshire being at the extreme with a seven-year requirement, and Kentucky next with a six-year requirement, each for Senators. The Constitution proposed for Arkansas and rejected in 1918 would have added to the qualifications for Senators and Representatives the requirement of citizenship of ten years in the United States.

RESIDENCE

ORIGINALLY it was expected that men summoned to Parliament should be residents of the county or borough sending them. The words "de comitatu tuo" in the writ to the sheriff are supposed to have implied this. Early in the fifteenth century any doubt that may have existed was removed by the statute 1 Henry V, which expressly commanded residence as a qualification. With the political jealousies of Tudor times, with the growth of commercial interests, and with the wider scope of social relations, strangers began to covet the borough memberships and to canvass for them. A way to evade the statute was found in admitting non-residents to the free burghership, and presently the statute itself came to be looked on as inoperative.

In Elizabeth's reign an attempt was made to secure its repeal. Norton argued (1571) that the repealing bill would take away all pretense for sending unfit men, as was too often seen, and remove any objection that might be started to the sufficiency of the present Parliament, wherein, for the most part, against positive law strangers to their several boroughs had been chosen; that persons able and fit for so great an employment ought to be preferred without regard to their inhabitancy, since a man could not be presumed to be the wiser for being a resident burgess; and that the whole body of the realm, and the service of the same, was rather to be respected than any private regard of place or person. Hallam says ("Const. Hist." 1. 265): "This is a remarkable, and perhaps the earliest assertion, of an important constitutional principle, that each member of the House of Commons is deputed to serve, not only for his constituents, but for the whole kingdom; a principle which

marks the distinction between a modern English Parliament and such deputations of the Estates as were assembled in several continental kingdoms; a principle to which the House of Commons is indebted for its weight and dignity, as well as its beneficial efficiency, and which none but the servile worshippers of the populace are ever found to gainsay."

Evasion of the law increased. By the opening of the seventeenth century, at any rate, counties as well as boroughs were disregarding it. In an election of 1601 Sir Edward Hobbie said in reply to one of the arguments of Sergeant Harris: "If you stand on that, I think, there are few Knights in the House lawfully chosen; for the words of the Writ and Statute are that he must be commorant [an inhabitant] within the county, which but few are." To this, says Sir Simonds D'Ewes in his Journal, "not one word was answered, and that clause was hushed up.' At last, in the case of Onslow v. Repley, 1681, Lord ChiefJustice Pemberton for the Court of King's Bench ruled that "little regard was to be had to that ancient statute 1 Henry V, forasmuch as common practice hath ever since been to the contrary." This is believed to have been almost the only instance in which desuetude has avowedly nullified a statute. The law was formally repealed by 14 Geo. III, c. 50.

On the Continent the general practice does not require Deputies to be residents of their districts. In Canada, and probably in the other English Dominions, residence is not required.

In this matter as in so many other particulars, the records of the American colonies show there was no general imitation of English procedure, but that each colony worked out a practice to suit its own needs. Thus in Plymouth, compact, with but a few towns, there was no occasion whatever for electing non-resident representatives, but on the contrary every reason for having each town represented by men of its own. So when representatives were created, March 5, 1638, the vote provided "they choose them onely of the ffreemen of the said Towne whereof they are." On the other hand in the Massachusetts Bay Colony distances quickly became a serious factor in communication and Boston began gathering to herself more than numerically her fair share of the abler men. So as early as 1641 we find it declared, in No. 68 of the "Body of Liberties" "It is the libertie of the freemen to choose such

1 Plymouth Colony Records, x, 31.

deputies for the Generall Court out of themselves, either in their own Townes or elsewhere as they judge fitest."

Possibly there was question of this, for when in November, 1644, a new plan for choosing the General Court was proposed, its author took care to specify, "further, to the end the ablest gifted men may be made use of in so weighty a worke, it shalbe at the liberty of the freemen to choose them, in their own sheires, or elsewhere, as they shall see best." No record appears of action on the plan, but the practice of electing non-resident Deputies became common without further statutory recognition. For example, Captain John Hull, the famous mintmaster, who was from first to last a citizen of Boston, represented Westfield in 1674, Concord in 1676, and Salisbury in 1680.

The first Governor under the new Charter given to Massachusetts Bay in 1691, Sir William Phips, speedily found himself opposed by a strong faction, known as the court or prerogative party, friends of the old charter, the conservatives of their day, who wanted Phips removed. Late in 1693 a motion for an address to the King against this action, that is, in favor of Phips, was carried in the lower branch of the General Court by only a bare majority, the vote standing 26 to 24. It happened that various representatives of country towns who were residents of Boston, were friends of Phips. Thereupon his enemies conceived the ingenious idea that they could advance their cause by getting rid of these men through changing the law so that Representatives would have to live in the towns they represented. Evidently the argument for the change won over enough of the friends of Phips to give success to the stratagem, for an entry in Judge Sewall's Diary for November 25 reads: "Representatives vote that none be chosen Representatives but persons resident in the Towns for which they are chosen, and having Free-Hold there, &c."

Perhaps some who were friendly to the Governor had the wool pulled over their eyes. Perhaps there were those not unwilling to stab him in the back. Anyhow the amended bill went to the upper branch and Sewall's entry for the 28th tells what there fell out: "The Bill for regulating the choice of Representatives was brought in with the clause relating to Residency of the Persons to be chosen for. The Dissent also of 21 Deputies was 1 Records of the Colony of the Mass. Bay in N. E., 11, 88.

brought in with it, alledging the vote was contrary to Charter, Custom of England, of the Province, hindred men of the fairest estates from Representing a Town where their Estates lay, except also resident; might prove destructive to the Province." After giving the names of the dissenters, he says: "The clause was read, and the Dissent 2 or 3 times by the Secretary, and then put to the Vote, Governour not being there." Nine are recorded "Content" and eight "Not content." Sewall takes the pains to add: "Governour came in presently after had done voting." An imaginative historian, fond of reconstructing an episode on a phrase as a foundation, might enjoy himself in drawing from this the inference that, if something had not delayed the Governor, his presence might have shamed the opposition enough to change at least one vote, in which case the injury of the residence requirement might never have been inflicted on Massachusetts.

1

When Governor Hutchinson came to describe this happening, he observed that though the provision was generally looked upon as a privilege and a point gained by the people, "it certainly was occasioned by what is commonly called the prerogative party in government, and, however salutary, was designed as an abridgment of liberty." Whatever the effects may have been up to Hutchinson's time, since then they have been of a nature to make it doubtful whether even his rhetorical concession, "however salutary," was justifiable. Many thoughtful men would now look on the incident as a striking illustration of the unfortunate origin of destiny-shaping institutions in episodes trivial of themselves and having no manner of relation other than sequential, to the results they produced.

From the legal point of view, a strict construction of the Charter would seem to justify the twenty-one Deputies who declared the change to be contrary to its provisions, for the Charter contains nothing that can be fairly construed into a restriction upon the choice of the electors, save that it should be from freeholders. Herein it differed from some of the other Charters. For instance, that of Connecticut in 1662 speaks of "Two Persons from each Place, Town, or city," to be elected or deputed. Penn's first Frame of Government contains no suggestion of a residence restriction, but that of the next year 1 History, II, 79.

(1683) said the Provincial Council was to consist of eighteen persons, "three out of each county," and the Assembly of thirtysix, "being six out of each county," so that the phrase "out of" might be presumed to imply residence. The same phrase appears in the Fundamental Constitutions for the Province of East New Jersey, 1683.

It is not probable that the practice of restriction to residents prevailed in provincial New York, for nothing to that effect was put into her State Constitution. Apparently it was thought at the time of the Convention of 1846 that there was restriction, for when the single district system was under consideration and it was proposed that a district might name any resident of the county, though outside the district, Mr. Nicholas gave as a reason to the contrary: "If the Constitution sanctions the election of candidates out of the district where they are to be voted for, it must defeat the principal objects of the single district system, which are to prevent political combinations in large counties, and to bring the candidate and his constituents nearer together, so that candidates may be generally known within their district." Yet when in 1858 a seat was contested on the ground of non-residence, Lyman Tremain, Attorney General, reported to the Assembly that, in his opinion, "there is nothing in the Constitution or laws of this State which prohibits the people in any Assembly district from electing a member to represent them in the Assembly of this State, who resides in another district."

In 1709 the General Assembly of New Jersey enacted that no one should be elected thereto who was "not inhabiting and usually resident himself, and likewise with his family (if any he hath) the day of the date of the writ of summons," but this was aimed to exclude those residing in neighboring provinces.

Colonial Virginia followed the English rule that candidates might offer themselves regardless of residence. We find Patrick Henry chosen from Louisa County in 1765, though not then living within its borders. The Constitution of 1776, however, declared that the Representatives should be chosen "of such men as actually reside in and are freeholders of the same counties, or duly qualified according to law." It is said that at the election in Fauquier, in the spring of 1784, the old friends and constituents of John Marshall in that county again elected him a member of the General Assembly, although he was