Custis v. Lane, 17 Va. 3 Munf. 579, (1813).
Supreme Court of Appeals of Virginia.
Custis
v.
Lane.
Argued Jan.14,1813.
A person who, at the time of the cession of the District of Columbia, resided in that part of the county of Fairfax which was comprehended in that district, and who has continued to reside there, is not entitled to vote for members of the Legislature of Virginia, though he was born in that state, and has a freehold therein.
[1] This was an action upon the case, brought by the appellant against the appellee, as high sheriff of Fairfax county, for refusing to permit him to vote in the election of members of General Assembly.
The case made by the appellant in his declaration was, that having been born within the commonwealth of Virginia, and being resident in that part of the county of Fairfax, which now constitutes a part of the district of Columbia, at the time when that district was ceded to the United States, he had resided there ever since; but had never, by any act of his own, relinquished his character of citizen of Virginia; that, on the 17th of April, 1809, he offered to vote at the election of members of the general Assembly, for the said county of Fairfax, in virtue of a freehold estate, of more than 100 acres of land, held by him in that county, and within the limits of this commonwealth; but was prohibited therefrom by the defendant.
The appellee pleaded several pleas, amounting in substance to this, that, by the act, explanatory of the act, entitled "an act concerning the election of members of general Assembly," passed January 15th, 1808, the appellant was not entitled to vote, as he did not reside within the commonwealth, but resided within the district of Columbia aforesaid, at the time when he offered to vote, and did not come within the exception of that act, in favour of non-resident citizens, employed abroad in the service of the United States, or of this commonwealth. These picas being demurred to, and issue joined thereon, judgment was rendered for the defendant in the Court below; from which judgment an appeal was taken to this Court.
Edward I. Lee, for the appellant, contended, that, according to the constitution of Virginia, real property alone is to be represented on the floor of the legislature; and that Mr. Custis, being the owner of a sufficient freehold estate within this commonwealth, was entitled to suffrage, under the 6th article of the bill of rights, as a person "having sufficient evidence of permanent common interest with, and attachment to, the community;" and, therefore, could not be taxed, or deprived of his property for public uses, without his own consent, or that of his representatives, nor bound by any law to which they had not assented for the public good. The 7th article of the constitution declares, that "the right of suffrage, in the election of members of both houses, shall remain as exercised at present." This refers us back to the time when that instrument was adopted. In the acts of 1705, ch. 1, and of 1736, ch. I, the only qualification required, was the possession of a freehold estate in a certain portion of land; nothing was said about residence, and it never was required, until the passage of the law of January, 1808, which produced this suit. The acts concerning the charters of the city of Williamsburg, and borough of Norfolk, show, that when residence was intended as a qualification, it was expressly so declared. By those acts, where the person is not a freeholder, residence in the city (or borough) is required, but if he be a freeholder, it is not required. The ordinance of conviction, in July, 1775, declares, that "the freeholders of every county within this colony, who are, by law, properly qualified to vote for burgesses, shall have the liberty and privilege of choosing, annually, two of the most fit and able men, being freeholders of such county respectively, to be present, and to act and vote in all general conventions," &c.; and that the "landholders" in the district of West Augusta shall have the like privilege. The 12th section of the same ordinance declares, that every white man, and inhabitant of the county of Fincastle, and the district of West Augusta, who shall have been one year in possession of twenty-five acres of land, with a house and plantation in such county, or district, claiming an estate for life, at least, in the said land, shall vote, or be elected, although no legal title in the land shall have been conveyed to such possessor. This ordinance shows, that it was under peculiar circumstances only that the laws, as they existed prior to the month of May, 1776, required residence in the elector as a part of the qualification. The 5th article of the constitution requires residence on the part of the elected, or that he should be duly qualified according to law; the plain meaning of which is, according to the laws then in force, and not such as should thereafter be passed. The laws, as they then existed, did not require the elected to be residents; but that they should be freeholders, and of a certain age. The constitution, by this provision, altered the previous laws, in this respect, and in none other.
[2] But if the meaning of the constitution were doubtful on this subject, the general Assembly had no authority to settle the question by a law. The right of voting is a constitutional right, not to be intermeddled with by the ordinary legislature. If they can interfere at all, they may perpetually change and alter it, so as to suit party purposes and views; and some future legislature may even adopt the dangerous principle of universal suffrage. The constitution of every state in the union defines the right of suffrage; as does, also, that of the United States, leaving nothing to the discretion of such a capricious and mutable tribunal as an annual legislature.
The 2d section (4th article) of the constitution of the United States confirms the right now claimed by the people of the district of Columbia. It declares, that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." It may be said that the District of Columbia is not a state. In the sense of the term, as used by the constitution, it is a state. It is a political society, which is the meaning of the term "state." If it be not such a state as is intended by this clause of the constitution, the consequences may be more serious than the advocates of such a doctrine are aware of. If it be not, as to some purposes, a state, in the constitutional sense of that term, what is the effect, upon that district, of the 1st section, and two last clauses of the 2d section, of the 4th article, prescribing the effect of records as evidence in the different states, and relating to fugitives from justice, or from service? And what is the effect of the clause declaring that no tax or duty shall be laid on articles exported from any state? If the District of Columbia, and the other territories of the union, be not, as to some purposes, considered as states, what is there in the constitution to prevent congress from laying a tax upon exports from the district of Columbia, or other territories, to the different States? The judicial law of the United States, which gives the federal Courts jurisdiction between a citizen of a territory and a citizen of a state, is a legislative construction of the term state, as used in that part of the constitution which relates to the jurisdiction of the Courts. Again, if the state of Virginia should be invaded by a foreign power, or an insurrection should arise in it, the people of the district would be bound to aid in its defence. If they are liable to the burthens of the residents of states, does not reason, as well as justice, say, that they ought to enjoy the privileges which the citizens of the states enjoy, where such enjoyment is not a violation of the constitution.
The District of Columbia has been ceded to the union, of which Virginia is a component part. If a resident of that district is a citizen of the United States, he must be a citizen of part, and, therefore, a citizen of Virginia and no foreigner as to it. No citizen of the United States can be a foreigner as to the respective states. Such an idea is hostile to the great principles of the constitution; the intent and object of which was to cement the bonds of union between the people of the different states. If he is not a foreigner as to Virginia, he is entitled to enjoy all the rights, privileges, and immunities, which a resident citizen of the state can possess, or enjoy. But the appellant, in this case, was born in Virginia. The laws of the state declare, that every free person born within it, shall be considered a citizen of it, and shall enjoy all the privileges of a citizen, until he relinquishes that character in the manner prescribed by law. That the appellant has never expatriated himself, is averred in the declaration, and admitted by the demurrer. While the act of 1792, declaring who shall be deemed citizens, remains unrepealed, the rights conferred by it cannot be taken away by implication.
[3] The next important point in the clause is, whether the sheriff is liable to the plaintiff in this action.
The election law declares, that if the sheriff refuse to take the poll when required by a candidate, or elector, &c. he shall be liable to a certain penalty. It did not mean to confine his liability to the particular instances of misconduct there stated, or to exclude an elector from his common law remedy. By authorizing a qui tarn action against the sheriff, that act establishes the principle, that it does not belong exclusively to the respective houses of Assembly to determine the question, whether the sheriff has conducted the election agreeably to the laws of the land. The question, whether Mr. Custis has a right to vote, could never come before the house; because, supposing his vote rejected, and the members returned were duly elected without it, he could in no form whatever bring the question of his right to vote before either house of Assembly. The question is not, whether the members were entitled to their seats, but whether a citizen has been deprived of his right.
That an action on the case will lie for a wrong of this kind, see the case of Ashby v. White, 6 Mod. 45; Holt's opinion, and 1 Brown's Parl. Cases, 45. An action lies for a free man for refusing his vote in the election of a mayor; 2 Lev. 250; 2 Vent. 50. And in the case of Bamardiston v. Soame, an action, in favour of the successful candidate, against the sheriff, for a false return, was sustained, and the plaintiff had judgment for 8001. damages. The objection made in the case of Ashby v. White, was not sustained in England, although it is the doctrine there that the British parliament is omnipotent. Here, the objection cannot be sustained, because our legislatures possess but limited powers; and, also, because this is a personal injury to the elector, to redress which the judiciary is the only competent tribunal; for a branch of the legislature cannot assess the damages the plaintiff has sustained by an invasion of one of the most essential rights of a citizen.
Writ, for the appellee. The consequences of allowing the vote now in question, would be extremely inconvenient. The government of this state, together with its representation in congress, might thereby be thrown into the hands of the citizens of other states, or of foreigners, by their agents; and such a process would be facilitated by our laws of naturalization. But it is contended, that both the policy and the letter of our law is in favour of the appellant; it being intended by the constitution, that nothing but real property should be represented. If so, the rule established is most unequal; for fifty thousand acres have no greater vote than fifty. The act of 1783, prohibiting the migration of certain persons to this commonwealth, and permitting others to return, but not to be capable of voting for members to either house of Assembly, is a contemporaneous construction of the constitution by the legislature, showing that freehold alone was not considered as carrying with it the inseparable right of suffrage.
[4] Persons, not lands, are the object of government; for their sakes society was formed, and government instituted. In simple democracy, the right of voting on all laws and trials implies the constant presence of the voter. Representative government is, confessedly, only a modification of the original democracy: those who would have voted in person, now vote for representatives, and, of course, must be residents. But, as persons who had not the common interest might intrude into elections, a badge of permanent residence is required. Such is the origin of the laws requiring electors to be owners of freehold estates in lands. But, according to Mr. Lee's argument, the evidence of permanent citizenship has shoved out the citizen himself, and taken his place.
That this is the policy of the constitution, is clear from the very section of the bill of rights, relied upon by Mr. Lee. It is asked, what is stronger evidence of permanent common interest with, and attachment to, the community, than owning a part of it? I answer, residence. A freehold alone does not give its owner a common interest with the community, while his person is exempt from all state impositions. In such a case his interest may be opposite to that of the people generally; in some cases, for example, where the question is whether a land tax or a poll tax shall be laid. As to the liability of the citizen of the district of Columbia to be called out by the president of the United States, to repress insurrections in, or repel invasions of, Virginia, this may be an argument for his having a vote in administering the general government; but it is no more an argument for his voting in Virginia than in any other state. If his land is liable to be taxed, it is protected in return. If he wishes to derive the full benefits of residence and freehold combined, let him come into Virginia, and submit his person, as well as his land, to our laws: let him pay the same price for his vote that every other citizen pays, and he shall have it.
But it is said that Mr. Custis is a citizen of Virginia. That he is so, is not averred in the declaration; and the contrary is plainly inferable from it. A citizen of the District of Columbia is under the "exclusive jurisdiction" of congress; though born in Virginia, he has ceased, by his own consent, to be a citizen of this commonwealth. The soil has been ceded to congress, and all the people upon it, who, by choosing to remain there, "freely submitted" to the act of cession.
The right of suffrage, as exercised before and at the time of the adoption of our state constitution, according to the existing law, and the practice under it, was not enjoyed by non-residents. The parties to the ordinance of 1775, and for whose benefit it was intended, were "the oppressed people of this country, who surely were not the non-resident landholders. The oppressions complained of were all of a personal character, and necessarily implied residence. This ordinance points back to pre-existing laws relative to elections of burgesses; and in examining the qualifications of electors, under those laws, we are to consider them as applicable to those who were the objects of the ordinance, viz., the people of this state.
[5] The members of the first legislative Assembly in Virginia, which met at Jamestown, June 19th, 1619, were elected by the different boroughs then existing. In July, 1720, by an ordinance, "establishing the constitution of the colony," the power of choosing burgesses was vested in the "inhabitants" of every town hundred, or settlement. By a law, passed in 1639, it was provided, that "no sheriff should compel any man to go off the plantation where he lived to choose burgesses." In 1646, the burgesses were to be elected by a plurality of voices of the free men present at the election. In 1654, the right of suffrage was abridged, but vested in "all house-keepers, whether freeholders, leaseholders, or otherwise tenants." In March, 1657, it was extended to "all free men inhabiting in this colony." The act of 1670, which again required the voters to be "freeholders and housekeepers, is an important connecting link between the old and more recent series of laws, and shows that the having a freehold was only a qualification superadded to residence. In 1676, one of Bacon's laws repealed the law forbidding free men to vote, and admitted them, "together with the freeholders and housekeepers, to vote as formerly." The king's instructions to Sir William Berkeley, in 1677, directed him to "take care that the members of Assembly be elected only by freeholders, as being more agreeable to the custom of England."
This series of laws was all along applicable merely to the inhabitants of the colony. The question was only, whether freeholders, or housekeepers, or free men, residing therein, were to vote. When, therefore, a law passes on this subject in general terms, it is obviously confined to the people of the colony.
The act of 1705, ch.1, from its connection with the preceding laws, the political state of the county, and the language of the law itself, is equally limited to persons residing here. The mode of publishing the writ of election "at the church door;" (sect. 2;) the clause requiring every freeholder "actually resident within the county," where the election is to be made respectively, to appear and give his vote; (sect. 3;) the punishment for voting without being a freeholder, and for taking a false oath concerning it; (sect. 4;) the provision that, when a writ issued to supply a vacancy, the sheriff was to give notice to "every particular freeholder residing within the county or town;" (sect. 8;) and the proclamation to be made by the sheriff at the courthouse door, "giving public notice of the time appointed for a court to be held for receiving and certifying to the next general Assembly the propositions and grievances, and the public claims of all and every person or persons within his county;" (sect. 15;) circumstances all combining to show that this law was intended for residents only. The act of 1736, ch. 1, which defined the quantity of land of which a freehold should consist, annulled conveyances fraudulently made to qualify persons to vote, required the voter to have been in possession twelve months before the teste of the writ of election, and modified the oath to fit these changes in the law, is subject to the same general remarks as the former law. Its whole complexion shows it to be intended for the people of the colony only.
[6] What was the practice under this series of laws? Did the colonists of Maryland or Carolina vote for burgesses in Virginia? We are not told so by history.
It is insisted, however, that Mr. Custis, if not a citizen of Virginia, is so of another state, and, as such is, by virtue of the constitution of the United States, entitled to all the privileges of a citizen of Virginia. But it was decided, in Hepburn and Dundas v. Ellzey, 2 Cranch. 452. that the district of Columbia is not a state within the meaning of the constitution. The same arguments, which are now urged by Mr. Lee, were used by him in that case, and overruled.
But if the appellant was entitled to vote, he is not entitled to an action against the sheriff, who obeyed the law, and, therefore, is not responsible. He is not to be called upon to say whether the act of 1808 is constitutional, or not. Suppose judgment should be given for the plaintiff in this action, and the legislature should persist in requiring residence within the commonwealth as one of the qualifications of electors, how could the controversy between the judiciary and the general Assembly be settled? If such a suit as this could be countenanced, the sheriff might be liable to ten thousand actions. Let the suitor apply to the legislature, and not tear the sheriff to pieces for doing his duty by obeying an act of Assembly.
Call, in reply. The plaintiff had a right to vote under the act of 1736, ch. 1; which was in force at the time of the revolution. By the second section of that act, a freehold estate in 100 acres of uninhabited land was sufficient to entitle its owner to a vote. Of course, it did not require county residence, but only citizenship, which was common to all British subjects. The practice under that law was accordant; and so the constitution is to be understood.
The people of the District of Columbia did not, by the cession, lose their political rights. They are citizens still, because they still owe allegiance; for they have not expatriated themselves in the manner prescribed by the act of Assembly; and their own express will is necessary to expatriation; for the state cannot abandon them if guilty of no crime. There is nothing in this incompatible with their duties to the United States; the allegiance to both governments being concurrent; and congress having passed no law to the contrary. Besides, the federal constitution does not give to congress the absolute dominion, but a right of legislation only, while the seat of government continues within that district. A qualified cession only was, therefore, intended; so that the United States got a franchise; but the absolute property, with an eventual reverter of occupation, remains in the state of Virginia. The case of Hepburn and Dundas v. Ellzey. 2 Cranch. 452. depended on the act of congress only, which described the jurisdiction of the federal courts, and did not decide what would have been the case if a man residing in that part of the district, on the other side of the Potomac, and calling himself a citizen of Maryland, had sued in the circuit Court of Virginia.
[7] This action properly lies; because the law admits of no right without a remedy. The refusal to permit a person to vote, who is lawfully entitled, is an injury which deprives him of his rank in society, and subjects him to be taxed, and legislated for, without being represented. The act of Assembly, giving a penalty against the sheriff for taking the poll illegally, surely does not mean to take away a right.
The defendant's objections are not tenable. The sheriff is not obliged to judge of the constitutionality of the law. He may avoid this by putting the voter's name on the back of the poll. But, if it were otherwise, he would only have to do what he must, at his peril, in various other cases. For example, if a general warrant, which by the constitution is void, were issued by a Court or judge, the sheriff must obey the supreme law of the land. In this case, however, it is not his duty, neither has he the authority to judge of the law or the constitution, but only to submit the questions arising upon both to the house of delegates, by putting on the back of the poll the name of the person whose right to vote is doubted. By doing this, he may avoid the danger of any action against him.
It is said, by Mr. Wirt, that the sheriff obeyed the law. But that is the question. This argument is only answering our objection to the constitutionality of the act of Assembly, by producing the act itself. He says, too, suppose the legislature should persist in opposition to a judgment in favour of the plaintiff. But this is not to be presumed. The opinions of the Court of appeals, declaring particular acts of Assembly unconstitutional, have always prevailed. In such an event, the general Assembly would probably repeal the law.
Saturday, February 13th, 1813, JUDGE ROANE, (after stating the case) pronounced the following opinion of the Court:
If the pleas of the appellee should even be adjudged to be bad, yet, upon the principle of going up to the first fault, judgment would still be rendered against the appellant, if, on the case made by his declaration, he has no right to recover; and it is evident that his right may be much weaker under the declaration than under the pleas, as the latter do not exclude (as the former does) the idea of his having been still a citizen of this commonwealth, at the time he offered to vote. We infer this diversity, from its being stated in the declaration that the appellant was inhabiting within the district of Columbia at the time of its separation from this commonwealth; he was consequently expatriated thereby from the government of Virginia.
The act of Virginia, on the subject of expatriation, relates only to individual cases; it does not relate to those public and general acts of expatriation, by cession, or otherwise, which are more or less incident to all governments and countries. With respect to the particular cession now in question, it was contemplated and provided for by the constitution of the United States, agreed to by the commonwealth of Virginia, by its act tendering the territory to the general government, and also by the congress of the United States, who accepted the cession. To all these acts the appellant, by his representatives, was a party. He has therefore, no reason to complain that he has been cut off from the dominion of Virginia, in consideration of, perhaps, adequate advantages. That he is no longer within the jurisdiction of the commonwealth of Virginia, is manifest from this consideration, that congress are vested, by the constitution, with exclusive power of legislation over the territory in question; and it is only by the consent and courtesy of congress that any of the laws of Virginia have been permitted to operate therein. This last fact will be fully manifested by recurring to the several acts of congress on the subject. It follows, that the district of Columbia being without the jurisdiction of the laws of Virginia, is, as to it, another and distinct jurisdiction, and that the appellant is not merely a citizen of Virginia, abiding, or inhabiting therein, but passed, with that territory, from the jurisdiction of this commonwealth, by the act of cession, and owes no allegiance thereto. It might well, therefore, be true, that the case made by the pleas might be in favour of the appellant, and yet that he is prohibited from recovering, upon the weaker ground of claim admitted by his own declaration.
[8] With respect to the right of a citizen, or subject, of a foreign government, to intermeddle with the civil polity of Virginia, and, especially, to exercise the all important function of legislation, the matter cannot admit of a possible doubt. Such subjects, or citizens, cannot exercise this inestimable right, as they owe to the commonwealth no corresponding duties, and would not be amenable to the laws by them enacted. They cannot exercise this right in person, for their personal attendance may be necessary, at the same time, in their own country; and, besides, in time of war, they would be prohibited from coming here for the purpose. In some small democracies, the people have exercised the legislative power in person; and this principle is not lost sight of, when, owing to the extent of the territory, or the numbers of the people, they are compelled to exercise that power by means of deputies. This necessity of acting by agents does not change the principle; does not let in, to the appointment of such deputies, persons who, but for the necessity aforesaid, would be inhibited from acting in their primary and original character. In other words, none are competent to legislate mediately, by their representatives, but those who would be admitted, but for the impediments aforesaid, to exercise the right in person.
It follows, from these premises, that before this great principle shall be departed from, it ought, at least, manifestly to appear, from the act of government itself, that an exception has been explicitly assented to by the people; in a case in any degree equivocal, the general principle would undoubtedly turn the scale.
There is no such exception to be found in the constitution of this commonwealth. That instrument, and the declaration of rights on which it is based, has no eye towards the subjects of foreign powers. It only purports to declare the rights, and settle the duties of those who are parties to the compact. There is not only no such exception in that instrument, but, on the contrary, the converse is explicitly declared and expressed. The declaration of rights is stated to have been made by the representatives "of the good people of Virginia;" and it is declared, "that these rights do pertain to them, and their posterity, as the basis and foundation of government." This instrument, therefore, can never be construed to bestow the inestimable right of suffrage upon aliens and enemies, who have no "permanent common interest with, or attachment to," this community; who owe paramount and conflicting duties to other sovereigns; who have superior attachments in other countries; and who, from their residence elsewhere, cannot perform duties which imply the necessity of a residence within this commonwealth. On the case made by the declaration, therefore, the appellant is, clearly, not entitled to recover.
With respect to the ground supposed to be taken by the pleas as aforesaid; while we are free to admit that it is weaker for the appellee than that made by the declaration, which admits the appellant to be no citizen, and leaves a great discretion to the officer, as to the fact of a foreign residence; we are of opinion, that the provision of the act of 1808, in relation to it, is in consonance with the principles of the constitution. As the constitution is to be construed, as aforesaid, only in reference to our own citizens; so, such of them are not embraced by its provisions in favour of the right of suffrage, who, through absence, are disabled from performing the duties in question; whose other ties of allegiance, temporary or perpetual, are thrown into a scale conflicting with their duties and allegiance to this commonwealth, and whose foreign residence diminishes their former "common interest with, and attachment to," this commonwealth.
[9] Persons standing in this predicament cannot be admitted to the right of suffrage, without running counter to all the principles on which that right is founded. As well might a resident citizen claim to vote, after he had parted with that freehold which guarantied his attachment to the community.
In thus deciding against the right of the appellant, upon the general principles just mentioned, the Court is, by no means, disposed to admit, that that result would be varied by any of the legislative provisions upon the subject. On the contrary, a recurrence to the various acts in our code, ancient and modern, will manifestly show that they are in strict conformity therewith. On every ground, therefore, the judgment of the Court below is correct, and ought to be affirmed.
In taking this view of the subject, the Court has neither considered nor decided the question, whether an action will lie against a sheriff for refusing to receive the vote of a person duly qualified; and much less has it decided, whether such action would lie against an officer, acting in obedience to a legislative act, found to be in conflict with the constitution. While this last case can rarely be expected to occur, its importance would require the most serious and deliberate consideration; and, even with respect to the first, it cannot often be expected to arise, under all the care which is taken by our constitution and laws to define, explicitly, the rights and qualifications of the electors. Whenever either question, however, shall occur, and become necessary to be decided, the Court will not shrink from the investigation and decision thereof.
Rev. Code, vol. 2, p. 146, ch. 117.
Edition of 1769, p. 15; Edition of 1733, p.126.
1742, c. 2, edition of 1769, p. 122.
1752, c. 7, same book, p. 287.
2 Lord Raym. 938, and 1 Salk. 19, S.C.
2 Lev. 114; Pollexfeu, 470; 3 Keb. 365,369,389, 664.
See the Preamble, Ch. Rev. p. 30.
1 Marshall's Life of Washington, p. 61.
Hening's Stat. at large, vol. 1, p. 227.
Note. See the same volume of Hening's Statutes at large, p. 403, and 404, from which it appears that the right of suffrage was again extended to all free men, in March, 1655.—Note in Original Edition.
Hening's Stat. at large, vol. 1, p. 412.
Hening's Stat. at large, vol. 2, p. 280.