Was David Levy a Citizen of the United States? Fight for Seat in Congress as a Delegate September 3, 1841 March 15, 1842 Page 2
No. 6. Decision of Court of Appeals. At a session of the Court of Appeals for the Territory of Florida, continued and held in the city of Tallahassee, on Wednesday the 27th day of January, A. D. 1841,
Present: The honorable—
Richard C. Allkn, Presiding Judge.
William Marvin, Associate Judges. Alfred Balch, On the matter of David Levy, Esq., who has been qualified as an attorney, solicitor, counsellor, and advocate, in this court.
It being suggested to the court that doubts exist whether said David Levy is a citizen of the United States of America, and entitled to practise as such attorney, solicitor, counsellor, and advocate—
Ordered, on motion of Leslie A. Thompon, Esq., a counsellor of this court, that David Levy show cause on Friday morning, at the opening of this court, why his name should not be stricken from practising attorneys, solicitors, councillors, and advocates, of this court, on the ground that he vs not a citizen of the United Slates of America.
At a session of the Court of Appeals for the Territory of Florida, continued and held in the city of Tallahassee, on Saturday, the 13th day « February, in the year one thousand eight hundred and forty one, Present: The honorable— Richard C. Allen, Presiding Judge. William Marvin. , . , , , Alfred Balch, Associate Judge. In the matter of David Levy, Esq., &c.—On rule to show cause, &c.
The said David Levy, Esq., having shown cause to this court its compliance with and in answer to said rule, and the questions arising in said cause being folly argued, and it being the unanimous opinion of this court, after mature consideration, that said David Levy, Esq., became and was a citizen of the United States of America, from the time of the definitive ratification and consummation of the treaty of amity, settlement, and limits between the United States of America and the King of Spain, by which the Floridas were ceded to the former, by force and effect of the sixth article of said treaty, and hath been ever since and now is such citizen of the United States of America. It is ordered and adjudged that said rule to show cause be discharged.
Territory Of Florida, county of Leon, set.
I, Richard G. Wellford, Clerk of the Court of Appeals for the Territory of Florida, do hereby certify that the foregoing is a true copy of the rule and discharge of said court, at the January and February term, in the year eighteen hundred and forty-one.
In testimony whereof, I have hereunto set my hand and affixed the [i. s.] seal of said Court, this the 23d day of June, A. D. 1841, and of the independence of the United States of America the sixty-fifth year.
R. G. WELLFORD, Clerk Court of Appeals.
No. 7. Deposition of Joseph S. Sanchez. Joseph S. Sanchez, being duly sworn according to law, deposed and saith:
I am a native of the city of St. Augustine; am 45 years old. I was in St. Augustine at the time of the cession of Florida the first time. I am sure Moses E. Levy was, I think a short time before the cession, in the store of a relative of mine at St. Augustine. In the presence of Governor Coppinger I was introduced to Mr. Levy at the place. He had arrived at St. Augustine from Havana, with a schooner, and brought with him seed cane and other tropical plants. I recollect he gave me some of the plants which he brought from Cuba with him. I planted them on my place, three miles from St. Augustine; and I abandoned that place before the cession, and returned to St. Augustine. I understood that he had come there for the purpose of settling permanently, and that he had brought out seed cane and other tropical plants as I understood. I cannot say whether he continued there at the change of flags, but I think I saw him soon after. I have no recollection of the circumstance whether he was there at the change of flags or not. I understood he arrived there from the Havana. I have continued to reside at St. Augustine since then. After the cession, I am under the impression that Mr. Levy voted at all our elections. I know nothing more than the common understanding, that he had come there to settle. I was not in Mr. Levy's company more than half an hour. The position of Mr. Gardner, the witness at the time of the cession, was a house carpenter.
And, being cross-examined on the part of the remonstrants, witness said: At the time I first saw Moses E. Levy, he did not remain there long. I saw him several times after the first time; and I am under the impression it must have been before the cession. Do not know that Moses E. Levy occupied a house or a plantation before the change of flags. The transfer of flags took place in July. It was not a very long while before the change of flags that I first saw Moses E. Levy. I think it was just before the change of filings. The winter that my plants were destroyed was the first winter after they were planted; and after the change of flags I abandoned my place after I had planted the plants, and before the change of flags: I cannot exactly recollect the year. From the circumstance of planting this place, I think I must have seen Moses E. Levy before the change of flags. Cold weather killed my plants. They were such plants as would be killed by the mildest frosts. I think I understood that Moses E. Levy had come to the country for the purpose of settling. A foreigner cannot hold land in Florida. I do not recollect whether he said he had land there. I think he brought the plants there for his own cultivation. I do not know that he sold any of these plants. I never knew of his planting any. I think that was the first time he came to Florida. It must have been about the close of the spring or beginning of summer. June is about the commencement of our summer. I think he boarded in town, instead of on board his vessel. I do not know that he brought any utensils or implements of husbandry. I think it was the same year of the change of flags that I first saw Mr. Levy. I do not know of his carrying on the operation of planting until after the change of flags. I understood, at that time, he was direct from Cuba. I do not know that he brought any member of his family with him. I either understood from the person introducing me to Mr Levy, or from Mr. Levy himself, at the time of the introduction, that he came to the country for the purpose of settling. The place where I was first introduced to Mr. Levy was at the store of Francis P. Sanchez. This matter has transpired so long ago, and 1 did not expect to be called to testify about it, that I did not charge my mind with it, and I speak only from recollection. JOSEPH S. SANCHEZ.
No. 8. .;. Deposition of Thomas Baltzell. Thomas Baltzell of Florida being examined as a witness on the part of Mr. Levy in the case of contested election depending before the Committee of Elections of the House of Representatives, being duly sworn, sayeth:
That he has been a practising lawyer since the year 1825 in Florida, and mostly at the seat of Government -, that he regularly attended the sessions of the Court of Appeals, and was present at the last term thereof.
That he has a recollection of the proceedings and case depending before and determined by the court, on the motion to strike Mr. Levy from the rolls. That deponent was not connected with the case as counsel or otherwise, and can only speak from his information of the case gathered in court, and through conversation with his brother lawyers.
He says that the object of the application was distinctly stated lo the court, to be to settle a question important not only to Mr. Levy, but many others, in East Florida, who were anxious to have the decision of the highest judicial tribunal whether they were citizens or not; that he does not distinctly recollect the argument of the case, but knows that the subject was considered and the case held under advisement by the court.
That the question of alienage was distinctly decided by the court, they agreeing unanimously in the opinion on that point. THOMAS BALTZELL.
Sworn and subscribed this 1st day of September, A. D. 1841.
W. HALSTED, Chairman.
No. 9. Deposition of Wm. P. Duval. The deposition of Wm. P. Duval, of Florida, taken before the Committee of Elections of the House of Representatives in the case of the honorable David Levy, whose seat is contested as the Delegate of Florida to Congress.
This deponent, being first sworn, says he was the first judge of East Florida in the year 1821. That he went to that country in autumn of 1821. At that time General Andrew Jackson was the Governor of Florida, and claimed to be invested with powers of captain-general of Cuba under the act of Congress; and by commissions under James Monroe, then President of the United States, his powers were restricted in two cases only, if I remember correctly. He was prohibited from granting lands or imposing taxes. As the judge of East Florida, my opinion was that all the judicial power conferred upon me was confined to cases arising under the revenue laws of the United States, and under the acts of Congress prohibiting an introduction of slaves. I believe at that time (1821) no other powers or jurisdiction was conferred on the judges of that Territory.
This deponent further states that General Jackson, as Governor as aforesaid, made and issued certain ordinances or laws, regulating the transaction of the business in and for the government of Florida. This deponent never doubted he had the right so to do within the limits of his powers as defined by law, and his commissions from the President in pursuance of law. That the courts of Florida have continued for near twenty years to adjudicate on cases arising under the ordinances,and have respected them as laws binding on the people of the Territory, except certain of the said ordinances which were repealed by Congress in the spring of the year 1822, among which was one authorizing the naturalization of the resident inhabitants of Florida. This ordinance was considered by the inhabitants as a grievance, and they disclaimed the right of the Governor to subject them to any process to enforce their allegiance to the United States, as the treaty with Spain provided that they should stand in the same situation as the inhabitants of other Territories belonging to the United States. I am under the impression that I acted for the people of the Territory in this case, as well as in some others; as I was requested by many of the citizens to attend Congress in the winter 1821-22, to represent their condition and wants to the President and Congress, as they had no Delegate to represent them at that time, and which I did in compliance with their wishes.
This deponent states that adjudications were made by Governor Jackson under his ordinances, and since by the superior courts under juices appointed by the President and Senate of the United States, (except SNA as had been repealed by Congress in May, 1822,) and that afterwards the Legislative Council of Florida repealed all the ordinances not before repealed by Congress, with a saving clause as to such cases as had or might thereafter arise under the said ordinance. I speak from recollection only, and I may not remember the precise phraseology of the act; but the laws of Florida can be referred to in the State Department to render certain this point. Estates of value have been settled under and in pursuance of the said ordinances by our Superior Courts and by the Court of Appeals, and I believe satisfactorily to the members of the bar and the people of the Territory. Governor Jackson left the Territory before he resigned the office of Governor, and his two Secretaries, Colonel George Walton in the West, and Wm. G. D. Worthington in the East, acted as Governors of these provinces, under the said ordinances, exercising the powers claimed of General Jackson, until the passage of the organic law by Congress in the spring of 1822.
This deponent, under the said organic law, was appointed the successor of Governor Jackson in the spring of 1822, and exercised no powers but such as the said law for the organization and government of Florida prescribed. This deponent resided many years in the said Territory; To absent from it from spring 1834 until the winter 1836, and has resided there ever since. And further says not.
WILLIAM P. DUVAL.
The question was put to Mr. Duval by the committee, whether, as Judge, if the ordinance relating to the naturalization of the inhabitants of Florida had been submitted to his adjudication, would he have decided that the said ordinance was legal, and within the powers granted to Governor Jackson?
Answer.—Mr. Duval says it was his opinion that the treaty with Spain provided for the incorporation of the inhabitants of Florida as citizens of the United States, and no ordinance issued by the Governor could operate against the said treaty, and so far as it might it would be null and void Deponents states that the registration of names under the ordinance of the people of Florida was a power the Governor had a right to exercise, for all purposes, except to regulate the naturalization of its inhabitants.
Question by the chairman of the committee.—Did the Mayor of the city of St. Augustine exercise the powers of a Court of Record?
Answer.—He did;and the Governor had the right, in deponent's opinion to appoint judges, or to give the jurisdiction to the magistrates and mayors, or intendants of cities, and this deponent knows, of his own knowledge,the Mayor of St. Augustine held such courts, and kept a record of his judgments and judicial proceedings.
Question by the chairman.—Was the act of registration one of the powers belonging to the Court of Record, held by the said Mayor of St. Augustine? Or did he exercise this power of registration by the special authority of the said ordinance?
Answer.—The Mayor's court was a Court of Record generally; but' suppose the special power of registration was conferred by the ordinance* as all his other powers were derived in the same manner.
Question by a member of the committee.—Was the act of an exercise of the power of a Court of Record?
Answer.—That must depend on the ordinance itself. If it required the registration to be recorded, I should say that then the Mayor's court was a Court of Record. If the ordinance conferred a mere power to execute the duty, as that of assessing property or taking a census of the people, it would be considered not as the act of a Court of Record.
Question by a member of the committee.—Was the office of Governor of the Territory of Florida an office of record for that or any other purposes?
Answer.—So far as the Governor acted in his judicial character, his office must be considered as a Court of Record. He held all the powers of the Government except the power to grant lands or lay taxes.
Question.—Did the office of Mayor of St. Augustine exist under the Spanish laws before the cession of Florida
Answer. I believe not. The Governor exercised the power in the last resort, but the judges decided the civil cases.
Question.—Who appointed Mr. Forbes Mayor? When and how was it done?
Answer.—I never saw his commission; but the Governor appointed him, as he since informed me. I mean General Jackson.
Question.—Do you know how and when he received authority to register the names of inhabitants of Florida for the purpose of showing the fact of inhabitancy? Or was such power ever conferred on that officer in any way?
Answer.—If he had the power it was under the ordinance passed by Gov. Jackson.
Question.—Are not, under the Spanish law, all authentic acts of individuals, not in the course of the administration of the law, transacted before a notary public? And does not such notary deliver to the party the original act, retaining merely a copy thereof?
Answer.—There were notaries under the Government of Florida while under the Spanish Government; but I cannot speak with certainty of the manner they transacted their business, except it was done in a very loose manner. I do not know whether they kept the original papers or gave out copies.
WILLIAM P. DUVAL.
Sworn and subscribed this 1st September, 1841.
WILLIAM HALSTED, Chairman.
No. 10. Deposition of Joseph S. Sanchez. Joseph S. Sanchez, being further examined, deposeth that, to the best of his knowledge and belief, no previous residence was necessary to enable a person to become a citizen and subject of Spain, in East Florida; that the applicant for admission to the rights of citizenship presented his prayer to the Governor, and, if granted, he took the oath of allegiance at once, and became a Spanish subject; and that the power of the Spanish Governor was complete and supreme in the province of East Florida upon this, as upon all other subjects, subject only to the superior and supervisory authority of the Captain-General of Cuba, and the royal will of the King of Spain. JOSEPH S. SANCHEZ.
Sworn and subscribed before me this 1st day of September, A. D. 1841. W. HALSTED, Chairman
No. 11. Affidavit of F. Mallory. District Of Columbia, Washington. Dr. Francis Mallory, being duly sworn according to law, doth depose and say, that he knew David Levy when quite a small boy, living at Norfolk with M. Myers, and going to school; he must have been about thirteen or fourteen years old. There can be no mistake as to the identity of Mr. Levy; it was previous to the year 1817. I was not in Norfolk in 1820 and in 1821. In 1822 and 1823 I was in the navy. I have no doubt that David Levy was a minor when I saw him at Norfolk, going to school As to the dates I cannot be very precise, except that he was a minor when he was there going to school.
And, being cross-examined, the witness said that when he first saw David Levy it was after he left the navy in the year 1824. I did not know who David Levy was or where he was from.
Sworn and subscribed this 1st day of September, A. D. 1841. W. HALSTED.
No. 12. Extracts from bill of Complaint of Moses E. Levy. Humbly complaining, sheweth unto your orator, Moses E. Levy, of the county of Alachua, in said district, on the 3d day of August, one thousand eight hundred and twenty, through Messrs. Hernandez and Cheavitean, merchants of Havana, in the island of Cuba, his agents and trustees in that behalf, purchased at Havana, aforesaid, from Don Fernando de la Maza Arredondo, Senior, also of the said city of Havana, two certain tracts of land represented by the said Fernando de la Maza Arredondo, Senior, to be situated in East Florida, that is to say: one of them about eight miles above Lake George, on the St. John's river, containing 14,500 acres; the other containing 38,400 acres, on both sides of Alligator creek, for the sum of twenty-five thousand dollars, paid at the time of purchase by your orator, through the said Hernandez and Cheavitean, his agents and trustees, as aforesaid, to the said Fernando M. Arredondo, Senior, for the said two tracts of land. And for the further sum of ten thousand eight hundred and seventy-five dollars for the said two tracts of land, to be paid by your orator to the said Arredondo, upon the contingency of the United States taking possession of East Florida. And in one and two years after that event, and for the securing of the payment of the said sum of ten thousand eight hundred and seventy-five dollars, your orator gave the said Fernando M. Arredondo, Senior, his promissory note or memorandum in writing, signed by your orator, and bearing date the aforesaid 3d day of August, one thousand eight hundred and twenty.
And your orator further shows unto your honor, that the said Fernanda M. Arredonda, Senior, well knew before and at the time of the said purchase and transfer of the said lands, that the said Hernandez and Chearitean had no personal interest in the said lands, or in the terms of their purchase; and that, so far as they had any concern in the negotiation for the said purchase, they acted as the agents of your orator; and that, in taking the conveyance of the said lands in their name, they acted at his request as his trustees; that, the said purchase was made exclusively for and on account of your orator; that the whole of the purchase money paid and to be paid was paid, and to be paid by your orator; and that the aforesaid conveyance of the said lands was made in trust for the sole use and benefit of your orator.
And your orator further shows unto your honor, that, believing and relying upon the aforesaid representations, affirmations, and assertions, of the said Fernando M. Arredondo, Senior, he, on the twenty-third day of August. 1820, concluded the purchase of the said lands, and made the payment of twenty-five thousand dollars, and entered into the stipulation for the payment of the further sum of ten thousand eight hundred and seventy five dollars, by giving his promissory note to the said Fernando M. Arredondo, Senior, as has been herein before alleged and set forth.
Your orator further shows, that at the time he made the said purchase, he was engaged in a very profitable business as a merchant in Havana, aforesaid, and he was induced solely by the purchase of the said lands to abandon his mercantile pursuits; and, in consequence of the non-existence of the said Alligator creek land, he has been greatly damnified.
Item No. 4.—Having agreed with Don Moses Elias Levy, at the time when I sealed to Hernandez and Cheavitean two tracts of land in the province of East Florida, who acted as agents of said Levy, the purchase being made for account of the last mentioned, that in the case of the cession of said province to the United States of America he was to pay $10,875 in addition to the sum specified in the hill of sale, and for which sum he made me an obligation on the 3d of August, 1820, let it be known that he has paid me on account of the second instalment of said obligation two thousand six hundred and eighteen dollars and six rials.
FERNANDO DE LA MAZA ARREDONDO.
Witness: Samuel Betts.
Havana, November 21, 1821.
We, Hernandez and Cheavitean, merchants of this place, do declare that, on the 3d day of August, 1820, an authentic bill of sale, executed in our behalf before Don Capitano Ponton by Don Fernando de la Maza Arredondo, for two tracts of land situated in the province of East Florida, one of them containing 14,500 acres, and the other containing 38,400 acres, as more particularly appears in said bill of sale, which having been issued in our behalf because it so suited to the convenience of the true purchaser, who is Don Moses E. Levy, who paid to the vendor, Don Fernando de Ja Maza Arredondo, the $25,000, for which sum the two tracts of land were bought, we give him this declaration in order that at all times it may appear and said Levy may prove that the said property is his, and that we have no pretension whatever to it, and that to this day it does not belong to us.
In testimony whereof, and in order that said Levy may make use of it to his best advantage, we sign, in this behalf, this declaration per quo triplicates, in the Havana on the 10th November, 1820.
HERNANDEZ & CHEAVITEAN.
[Here follow deeds showing that the lands referred to in the foregoing were transferred to Moses E. Levy, in his own name, on the 8th day of June, 1821.
No. 13. Deposition of J. M. Hernandez, September 1, 1841. District Of Columbia, City of Washington.) Joseph M. Hernandez, being sworn, on his oath deposeth and saith: That he is a native of St. Augustine, in East Florida, and was there prior to, and on the day of, the transfer of East Florida to the United States, commonly called the "change of flags;" that, up to that day, Moses E. Levy had not been an inhabitant or, as deponent verily believes, a visitor of Florida; that Moses E. Levy, the farther of David Levy, came to St. Augustine after the transfer of Florida to the United States—that is, after the "change of flags;" that he first took up his residence in St. Augustine before Governor Coppinger left that place, but not until after his authority as Governor had been surrendered to the American commissioner; that Moses E. Levy, soon after his arrival in St. August me, purchased a place from Mr. F. M. Arredondo, Jr., about fifteen miles south of St. Augustine, and then returned to Havana. In the spring cf 1822 he again returned to St. Augustine in a vessel direct from Havana, in which vessel came a passenger a sister of mine, Mrs. Ruiz, to join her husband, who was at that time in charge of my plantation. That Mr. Levy then brought a quantity of sugar cane and a variety of West India plants, which were set out mostly upon the place purchased by him from Mr. Arredondo, and which place he afterwards sold to Col. Murah. Some of the sugar cane he sent up the river St John's to be planted there upon lands, the settlement of which was a great object to secure the confirmation of the titles by the United States. That the vessel of which Col. Sanchez testified yesterday before "the committee," to show the time when Moses E. Levy first came to Florida, was the identical vessel that this deponent in this, his deposition, has herein before referred to.
. And being cross-examined by David Levy, Esq., witness stated that Governor Coppinger, as well as witness recollects, remained in St. Augustine two or three months after the exchange of flags. I do not remember how he left; I think he went to Charleston either by land or water. The name of the vessel to which I allude in my deposition I do not recollect. Persons became citizens of Florida by taking the oath of allegiance to Spain, and by actual residence there. The process of becoming citizens was by declaration of intention to settle in the country directed to the Governor, and the administering the oath of allegiance all foreigners were allowed to settle in Florida and take the oath of allegiance to Spain, except citizens of the United States. My recollection is perfectly distinct as to all the facts I have testified to, occurring in 1821.
Re-examined by Mr. Smith, said that the requisitions to constitute a citizenship did not extend to persons who were not bona fide residents in the country.
JOSEPH M. HERNANDEZ.
No. 14. Deposition of P. S. Smith. District Of Columbia, City of Washington, Personally came before me, Clement T. Coote, a Justice of the Peace in and for the District of Columbia, at my office, in the city of Washington, in said District, Peter S. Smith, who, being sworn, on oath, saith : That the charge against David Levy of his being an alien, and not a citizen, first publicly made, in the knowledge of this deponent, immediately after the election of said Levy as one of the delegates or representatives from St. John's county, Florida, to the Constitution Convention, held some three years since at St. Joseph, in Florida; that this deponent, as if highest opposition candidate on the defeated ticket, then publicly brought forward said charge, in a letter over his signature, to the President of the Convention, at St. Joseph—which letter was further published in newspaper of St. John's county, where said Levy resides—a copy of which letter is now in the hands of the Committee of Elections of the House of Representatives 'of the United States; that, from that time to this, the charge of said Levy's alienship has been public and notorious in Florida , that, when offering and running as Delegate to Congress, he was so publicly charged, and the evidences of it were published in Florida newspapers, printed in the city of his residence—which papers are now in the bands of said committee ; that said Levy and his friends were publicly challenged to exhibit and publish the evidences or credentials of his citizenship , that the answer made, in substance, and published to the voters, was, that the charge was unfounded, and the denial of it was endeavored to be proved by the publication of what purported to be a decision of the Court of Appeals of the Territory of Florida, and that it was of no moment either way, whether he was an alien or not, as it would not disqualify him to act as Delegate for Florida.
This deponent further says, there were three candidates who offered and ran at the late election in Florida for Delegate to Congress; that David Levy was the candidate of the Van Buren or Locofoco party, so called; that George T. Ward was the Whig and anti-division-of-the-Territory candidate; and that Charles Downing was the Whig candidate in favor of and pledged to a division of the Territory of Florida; that David Levy was elected and returned as the Delegate by a mere plurality of the votes of Florida ; that the votes cast for Ward and for Downing by the opponents of David Levy constituted, in the aggregate, when united, a large majority of the votes of Florida, exceeding the whole vote of Levy by several hundred votes.
And further this deponent saith not.
PETER S. SMITH. District Of Columbia, Washington County. Acknowledged and sworn before me this 11th August, 1841.
CLEMENT T. COOTE, Justice of the Peace.
I certify that Peter S. Smith came before me and made the foregoing deposition, at 10 o'clock A. M., this eleventh day of August instant, and that he waited to be cross-examined by any one interested until eleven o'clock of this day, and that no one appeared to cross-examine on the part of David Levy.
CLEMENT T. COOTE, J. P. Washington City, D. C., August 11, 1841.
No. 15. Deposition of P. S. Smith. District Of Columbia, Washington City, Peter S. Smith being sworn, deposeth and saith, that he has resided for several years past in St. Augustine, Florida. That the excellence of the climate renders St. Augustine and Florida a place of resort for invalid 5 and visitors in health, especially in the winter months. That this deponent conducts a land-agency business for the sale and settlement of bis own and the lands of others in Florida. That he has answered in the last three or four years, some two hundred letters from persons in almost all the States of the Union, applying to him to aid them in the purchase of lands, and specifying their "intention to come and reside in Florida. In some instances, from twenty to thirty have so applied to him from a State, and have united in a single letter, giving their names, some as farmers, and others as mechanics by occupation, and asking him to point out to them a healthy and advantageous location, where they might form, in Florida, a new and separate settlement as a community by themselves. That this deponent has had in that time, all of an hundred applications, he thinks, from strangers and visitors in Florida—persons, who had spent a few days, or a few weeks, or a few months there—and who have then and there expressed to him and to others their "intention" to remove to, or else to remain, in Florida and become residents thereof. Sometimes the applicant has taken a contract for the purchase of land, and planted out orange trees and crops—and, then, after such improvements, has surrendered or relinquished the possession, and with almost all of those who would in the enjoyments of our climate publish their "intention" to become residents among us, the sojourners have almost all, say nine-tenths of them, passed away to their residences to return no more to Florida. That in every instance where the "visiting stranger" has merely expressed his desire or "intention" to remove to Florida, unconnected with the visible and commonly received acts of actual settlement, this deponent in such instances has not conceived that the party saying or promising he would become a settler bona fide, made him one; or that the mere throwing out of such an expression of an "intention" to settle, was any thing more towards an actual settlement than if the intimation had been given in a letter from Maine or Georgia, instead of (he oral communication of it on the spot.
That there are persons residing in St. Augustine, aliens, who had been permitted to vote for a long series of years at all the elections of Florida, until some two or three years since, a Territorial law was passed, requiring all who were of foreign birth, to produce at the polls the certificate of their naturalization. And no oath of naturalization, nor proof of the loss of the certificate, nor anything but the actual production of such certificate, can, under that law, avail the party seeking to establish his citizenship by naturalization to qualify him to be a voter. That the voters of Florida, therefore, must be proved to be either native born or naturalized citizens of the United States, as far as their qualifications are concerned, before they can vote for an alien candidate, who could not by the Territorial law vote for himself without the certificated proof of his naturalization under the laws of Congress.
That foreigners and aliens can "own" lands in Florida, in virtue of the local statute of the Territory: And further this deponent saith, that he is personally well acquainted with Moses E. Levy; and has heard the said Levy declare in said city of St. Augustine, once in the presence of B. A. Putnam, said Levy's lawyer, and repeatedly to others and to this deponent, that were it not for the powers conferred on him under the
Territorial statute aforesaid, he could not hold title to a foot of land in Florida.
And that the said Levy has repeatedly told this deponent in St. Augustine, within the last four or five years, and sometimes in the presence of others, that he, the said Levy, did not visit or come to Florida until after the "change of flags." And that the fact of said Levy's having first arrived in Florida after the "change of flags," is a matter or fact of very general and public notoriety among the old and new inhabitants of St. Augustine; and although this deponent has heard it intimated that the said Levy might have arrived there prior to the "change of flags," this deponent never has heard it gravely alleged or urged, or pretended to be capable of being substantiated as a fad, until he heard the testimony of J. S. Sanchez before the committee of the House of Representatives on yesterday, the 31st of August, A. D. 1841. And this deponent states, that he has often heard several of the old and intelligent inhabitants of St. Augustine, who were residing there at the "change of flags," positively assert that Moses E. Levy did not arrive at or come to St. Augustine until after the "change of flags," and that until yesterday, he never heard any one who spoke from personal knowledge of the fact, maintain or say that said Levy came there before the "change of flags. And further this deponent saith not. September 1, 1841.
PETER S. SMITH. Sworn and subscribed this 1st day of September, 1841.
WM. HALSTED, Chairman.
No. 16. Petition of M. E. Levy. To the Honorable the Commissioners appointed to ascertain claims and titles to lands in East Florida.
The petition of Moses E. Levy respectfully sheweth : That your memorialist claims title to a tract of land, consisting of fourteen thousand five hundred acres, situated on the west bank of the Saint John's river, at a place called Hope Hill. The first line runs south 75° west, 176 chains, to an old path of the Chocochate Indians. The second line runs north 25° west, 520 chains, to a stake in a path of the Okelooka Indians, and is bounded as follows: on the north by the Indian path last mentioned; on the east by the river St. John's; and all other sides by unseated lands which title your memorialist derives from a grant made to Fernando M. Arredondo, sent by Governor Coppinger, in virtue of the royal order of 29th March, 1815, who sold the same to your memorialist, and is the whole original grant. And your memorialist further sheweth, that he is in actual possession of said lands; that he is a citizen of the United States, and resident of Meconope in East Florida.
No. 17. Deposition of Warburg. The examination of Frederick S. Warburg, on the part of the plaintiff taken before Elias B. Gould, a Justice of the Peace for the county of St. John's, in said territory, to be read in evidence before the Honorable the Land Commissioners, to adjudicate on the claims and title to lands in said District of East Florida.
Frederick S. Warburg, being sworn, says: In the fall of the year 1816, deponent saw said Mr. Levy in London; that Mr. Levy informed deponent that it was his intention to settle a number of families in America. In 1820, Mr. Levy informed deponent, through Mr. Delavente, that the families could now come out, as he had purchased land in Florida; that Mr. Levy again sent to deponent, in 1821, and engaged him to come out; when deponent came out, he staid for some time at the North, to wait the arrival of several families, who were also to come,for the purpose of forming a part of the contemplated settlement; that, on the arrival of said families, deponent came with them to Florida; (say twenty-two persons,including colored people;) that the families who were principally relied on for the settlement in Alachua still remained in Europe, with the exception of some, who are now in the United States, waiting for an opportunity to come. Deponent further states that the number of persons now waiting in the United States and Europe, who are expected to arrive at the settlement in Alachua, to form a part of it, is from forty to fifty, and that engagements with them are of long standing ; that, from 1821 to this period, deponent has been continually engaged in procuring settlers upon the lands of the said Levy, in the Alachua, and is still in correspondence with individuals, in Europe, for that purpose; that Deponent, from the knowledge he has of the original plan of Mr. Levy, further states that said settlement was to consist of about sixty families; that there are about five heads of families on Mr. Levy's settlement at the present lime, and twenty-three souls, including fifteen slaves.
Upon the inquiry of the United States Attorney, deponent states that the reasons why the families have not arrived here before this, are the inconveniences of accommodation, for want of proper buildings, arid other necessaries to render comfortable. Deponent says that he has been acquainted with Mr. Levy since 1816 ; that he does not know whether he is a Spanish subject.
Being further interrogated by the plaintiff's counsel, deponent says that Mr. Levy has expended about eleven thousand dollars.
F. S. WARBURG.
Answer of David Levy. Sir: Before proceeding to remark upon any other point connected with the matter referred to your committee respecting my qualification as Delegate of Florida, I deem it my duty to enter my protest against the action taken upon this subject. I do not recognise the authority of the House to 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 1 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 (if 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 maybe 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 ray hands than to stile 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 authenticate) 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 referring 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 belong 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 not willing to incur, and to which I ought not to be exposed upon grounds.
I have the honor to be, respectfully, your obedient servant,
Hon. William Halsted, Chairman Committee of Elections.
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 on the one hand unwilling to withhold the frankest possible statement; on 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 with otherwise than by my own voluntary motion.
I feel satisfied, from the tenor of the resolution, that the point off communication and my object in presenting to the committee the decree of the Court of Appeals of Florida, have been mistaken. I 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 entirely 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, 1889, 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 advantage of representation, the Delegate being their only organ at Washington.
The reply, then, alter 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 presumptive case was made 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 case 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 1 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 1 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 evidence.
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 just to call upon me here to go into proof of my right, until the petitioners have at least made some foundation for it, by testimony of a legal character. Had the provisions been complied with, the examination of the witnesses would have been had at home, where the testimony could have been prepared without so much trouble and expense to me, and where the means of refuting their proofs would have been at hand; and I, baring notice, would have come here prepared to expect and to meet a challenge of my right.
1 feel satisfied that, upon a review of the case, the committee will perceive the justice of the considerations by which I have been governed. A reference to the precedents of contested elections, will show that there is not a case to be found, either in the British or American houses of legislation, in which a member has been called upon to answer or rebate* parte or informal testimony, or where the House has instituted an inquisition into the qualifications of members, with the exception of two instances, in which it was done for the purpose of settling important questions of practice under the Constitution.
I submit to the committee the provision of the laws of Florida referring to this subject, and ask to be discharged from further notice of the case.
I have the honor to be, respectfully, your obedient servant, D. LEVY.
Hon. W. Halsted, Chairman Committee of Elections.
D. Levy's letter of July 29, 1841.
Washington, July 29, 1841. Sir: In reply to the notice contained in your note of the 27th, I beg leave to say, that, having understood that a resolution had been adopted by the committee of which you are chairman, postponing the further consideration of the questions connected with the remonstrance referred to you until the next meeting of Congress, 1 had dismissed the subject from my attention.
In compliance, however, with the resolution communicated, I shall attend the committee, requesting, before they proceed further, a decision upon the following point, which I respectfully submit, to wit:
That the House of Representatives, in its separate capacity, has not jurisdiction in this matter; but that my right to appear as the Delegate of Florida in Congress, must be considered of and adjudged by the Congress to which I am delegated.
I have the honor to be, respectfully, your obedient servant,
Hon. Wm. Halsted, Chairman,
C. Statement of Mr. Levy, filed August 27, 1841. The following is presented as a statement of the facts bearing upon the Question now pending before the Committee of Elections, in respect to my right to a seat as Delegate of Florida, so far as I at present am able to collect them:
1. That I was born in the island of St. Thomas, one of the islands of the American continent, but not within the limits of the United States, in the year 1812, I had always supposed ; though, from the early age at which I was separated from my relatives, and from the fact that I have not been possessed of any record of my age, I cannot undertake to contradict the statement that it was in the year 1810.
2. That in June, 1819, I was sent, by the direction of my father, to the borough of Norfolk, in the State of Virginia, where I was put to school, and where I continued until I went to Florida, with the exception of a period of two or three months' absence on a visit to my relatives in the West Indies.
8. That, in 1822, while at school in Norfolk, my father, Moses E. Levy, informed me that he had made me a citizen of the United States.
4. That, in 1827, I went to Florida to my paternal home.
5. That, in 1832, I was admitted to practice in the courts of the Eastern District of Florida as an attorney and counsellor at law.
6. That, in 1836, I was elected from St. John's county to the Legislative Council of Florida, (one of the express qualifications for membership in which is that of citizenship of the United States—see Statutes of Florida,) and served during the session of 1837 ; in which year 1 was admitted to practice in the Court of Appeals of Florida.
7. That, in 1837, I was again elected to the Legislature, and served during the session of 1838.
8. That, in 1838, I was elected one of the Delegates of St. John's county to the Convention which assembled to draught a constitution for the State of Florida, and served in said Convention.
9. That, while sitting in this Convention, I heard, for the first time, the odious charge that I was not a citizen of the United States, which was made to the Convention in a communication from one of the defeated Candidates—which communication was refused to be considered by a unanimous vote of the Convention.
10. That I lost no time alter my return home in investigating the subject, and in relieving my feelings of the shock which the charge had produced, but was unable to find any record in Florida of the proceedings upon authority of which my father had, since 1822, informed me I was a citizen of the United States.
11. That, in the following year, I succeeded in finding the record of that proceeding in the State Department, at Washington, a full and authenticated transcript of which is before the committee, and which exhibits the following state of facts, to wit: That, under the ordinance No. 3 of Governor Jackson, constituting a tribunal to try the right of those who claimed citizenship of the United States under the sixth article of the treaty between Spain and the United States, Moses E. Levy presented himself, alleging, among other things, that, at the time of the ratification of the treaty between Spain and the United States, he was the owner of landed property in Florida, and pursuing agricultural occupations, and claiming that " he was embraced in the spirit and meaning of the term inhabitant, and entitled to the privileges of a citizen of the United States," &c., having been absent on the 17th day of July (the day fixed in ordinance) " at Charleston on a visit,'1 and on his way to St. Augustine on that day. And that, "for the three (then) last years he had resided nowhere except in the Havana or Florida." He further alleged that,the month of June preceding, he had abjured all allegiance to foreign Governments, and had again repeated the same before the officer appointed for the purpose.
The memorial representing these facts was accompanied by a certificate of the officer appointed by the ordinance to inquire into these cases,is sued conformably to law; which certificate set forth that Moses E. Len had appeared before him, and it appearing, " by satisfactory evidence, that the said M. E. Levy was really an inhabitant of the Province of East Florida, on the 17th of July, and he having of his own free will and accord abjured all foreign allegiance, &c., he had administered to him the affirmation of allegiance as prescribed by the laws of the United States.''
The memorial and certificate were presented to the acting Governor Worthington, who at that time possessed and exercised the supreme poser in East Florida, executive, judicial, and legislative, and by him was approved; and a certificate of citizenship, in due form, issued to said M. E. Levy.
The record of this whole proceeding was transmitted shortly after to the Department of State, the organ of communication between the Government of the United States and the Government of Florida, and acquiesced in.
12. That this proceeding I regarded as conclusive upon the subject, both as to the facts and the legal effect.
13. That, in order to satisfy myself that my judgment, as to the effect of this proceeding, was not mistaken, I applied to an eminent America; counsellor for his opinion, which I received in writing, and a copy of it is herewith exhibited. The question propounded to him being, whether Moses E. Levy's right to the benefit of the sixth article of the treaty or not established by the record submitted, and which is the same not before the committee.
14. That, expecting to have to visit Cuba upon business, I applied the same year, to the State Department of the United States for a passport as a citizen of the said United States, referring the Department the proceedings in my father's case, and enclosing a copy of the papers above referred to, and said passport was issued, and is herewith exhibit
15. That, to satisfy myself still further, I consulted the opinions of several other gentlemen of eminence in the profession of law, and was infirmed by all of them in my own opinion.
16. That the charge continuing to be made a subject of attack upon me in one of the prints of Florida, some of my friends, knowing the caused my unwillingness to publish the facts of the matter, caused a rule to obtained in the Court of Appeals of Florida for the trial of the question of my right, the first intimation of the motion for which, was the service the rule upon me by the marshal of the district; and that, in pursuance that rule, I appeared, the merits of the question were fully discussed as considered, and a decree made by the court, with unanimous concurrent a copy of which has been furnished heretofore to the committee.
17. That, from the period of the issual of the certificate of citizens if Moses E. Levy has constantly described himself as being a citizen of United States, and exercised its privileges, as may be seen by reference to the proceedings of the Board of Land Commissioners, sitting in and to the records of the Supreme Court of the United States, as well as by other proofs.
Attorney General Gilpin's opinion. Washington, July 11, 1840.
Sir: Upon the facts in the record, submitted to me by you, I have no hesitation in expressing my opinion that Moses Elias Levy was entitled, as an inhabitant of Florida at the time of the cession, to all the privileges, rights, and immunities guarantied by the sixth article of the treaty of 22d February, 1819, between the United States and Spain.
To designate the mode of ascertaining the fact of inhabitancy was clearly within the powers vested in the Governor of the Territory by the act of Congress of 3d March, 1821: The legality and propriety of the mode, so designated in the Governor's ordinance, is recognised by the act of Congress of 7th May, 1822, which postpones the repeal of it until the 1st June, 1822. The fact itself of Mr. Levy actually being an inhabitant on the day specified in the ordinance, appears by the official certificate of the Mayor of St. Augustine, as the ordinance required; and the same fact, as well as his having taken the affirmation of allegiance to the United States, and renounced all foreign allegiance, is further certified by the acting Governor of the Territory. The circumstance of Mr. Levy's having been absent at Havana, at intervals, in the three previous years, during which it is stated that he was actually engaged in the prosecution of agricultural occupations in Florida, and his happening to be on a transient visit to Charleston on the very day of the session, cannot be regarded either as a change of domicile, or as lessening the weight and sufficiency of the evidence of residence, which is in accordance with the prescribed requirements of the ordinance, or as impairing the rights guarantied to him by the treaty; which, to use the words of the Supreme Court of the United States, when commenting on this article of it, in the case of the American Insurance Company vs. Cauke, (1 Peters, 542,) was "the law of the land, and admitted the inhabitants to the enjoyment of the privileges of citizens," even if "this was not their condition, independent of stipulation."
Very respectfully, yours, H. D. GILPIN.
David Levy, Esq.
Secretary of State's passport to D. Levy. UNITED STATES OF AMERICA. To all to whom these presents shall come, greeting: No. 1669. I, the undersigned, Secretary of State of the United States of America, hereby request all whom it may concern, to permit safely and freely to pass D. Levy, a citizen of the United States, and, in case of need, to give him all lawful aid and protection.
Description. Age, 28 years; stature, 5 feet 7 inches, English ; forehead, high; eyes, hazel; nose, Roman; mouth, medium; chin, ordinary; hair, brown . complexion, rather dark; face, thin. Signature of the bearer, D. Levy. Given under my hand, and the impression of the seal of the Department of State, at the City of Washington, the 27th day of [seal.] July, A. D., 1840, in the 65th year of the independence of these United States. JOHN FORSYTH.
Application of D. Levy for a postponement of his case until next session, presented to the committee on the 30th August.
The undersigned desires a continuance of the question of his qualification to hold a seat as Delegate in Congress, because, by the resolution of the committee on yesterday, in which they decide to go behind the record of proceedings had before the Mayor and acting Governor of Florida in 1822, under the ordinance No. 3 of Governor Jackson, the fact of the inhabitancy of Moses E. Levy, within the meaning of the treaty, in the year 1821, is opened, and it is impossible for the undersigned to investigate the subject and prepare the facts for submission to the committee in a manner likely to secure him justice here, and at this time, for the following reasons, to wit:
1st. That the facts connected with the question occurred twenty years ago, at a time when he was a child, and in a distant part of the country, (Florida,) where the undersigned would have to go to seek the necessary proofs.
2d. That the undersigned considering himself to be in possession, by the certificates of Forbes and acting Governor Worthington, of conclusive evidence of the inhabitancy of Moses E. Levy in Florida at the time of the cession, has not taken pains to go beyond the record of that proceeding in informing himself upon that point, and will have now to commence his investigation. D. LEVY, Delegate from Florida.
Reply of Mr. Coxe to the application of D. Levy for a postponement of case. Mr. Levy having placed in my hands the reasons assigned by him for desiring a continuance of his case, I submit to the committee the following observations upon this paper:
It will be remembered that this subject has been before the committee a long time; and that nearly two months have elapsed since Mr. Levi was notified that an answer would be required to the allegations preferred against his title to his seat by the remonstrants. He has, I believe, to the committee three several answers, and the case was understood to be completely at issue. It was with no small surprise that I found yesterday a preliminary point raised upon a document which had never before been seen by me, and upon which, therefore, without any preparation further than my general knowledge of the case, I was compelled at once to go into the discussion of. This argument consumed the day, and the decision of the committee was adverse to Mr. Levy. The evidence then offered by the remonstrants, taken after notice to Mr. Levy, is therefore before the committee, with the counter-evidence submitted by him.
At this stage of the case, it appears to me wholly irregular to postpone the further consideration of the case. A party may apply for such postponement before the trial has commenced, but not afterwards. The progress of the trial cannot be interrupted by an application of this kind; if it might, few trials would ever be concluded.
In this particular case, Mr. Levy has admitted, before the committee, that he has been aware of the existence of this allegation of alienage for several years, and has been apprised of the existence of the first affidavit of Moses E. Levy, which has been published in Florida for a long period of time. He, however, alleges that the documents from the State Department were procured by him and laid before the committee as final and conclusive evidence in his defence. It thus appears that he relied upon being able to shut out the investigation by testimony which he thought would operate as an estoppal, and placed the case upon that issue. The decision is adverse to his hopes, but it cannot be pretended that it is adverse to justice, when the whole amount of the decision is to permit the question of alienage to be examined.
He has also raised two other questions—1. Whether the fact of alienage, if established, can be considered as rendering him ineligible as a Delegate? 2. Whether the House of Representatives and this committee have jurisdiction over the question? These two questions have been formally raised and discussed before the committee.
By thus proceeding, and at this stage of the business, I apprehend he is precluded from asking for a postponement upon any grounds, however strong. He, however, discloses none which would be listened to for one moment in a court of justice. He makes no averment of any fact at all material, either of his own knowledge, or communicated to him from any credible authority, which, if proved or admitted by his opponents to be true, would be at all material. He does not indicate a single witness by whose testimony he expects to prove a single fact. Mr. Levy was distinctly apprised that his application for a postponement would be required to be made in accordance with the practice of courts of justice. In addition to the requirements above mentioned, it would be necessary, before a court of justice, to establish a prima facie case of surprise ; that the party could not have anticipated the ground taken against him; that he has reasonable cause to believe that he can procure, in a reasonable time, legal testimony which would establish his defence; and that he has used all reasonable diligence to procure such testimony. Some, if not all these allegations, must be distinctly made and averred upon oath. Mr. Levy has not complied in form or substance with either of them, and I therefore submit the case to the committee, with full confidence that he has no claim, on any ground for further delay. RICHD. S. COXE, Of Counsel with the Remonstrants. August 28, 1841.
Application of D. Levy for reconsideration, August 31, 1841. The undersigned respectfully asks a reconsideration of the resolution communicated to him on yesterday. He desires to have summoned before the committee William P. Duval and Thomas Baltzell, Esqrs., both of whom are now in this city, and one of whom arrived since the undersigned was last before the committee, to be examined upon points material in the case. He is desirous also of bringing other facts connected with the case to the consideration of the committee.
Respectfully, D. LEVY.
Deposition of D. Levy in reference to application to adjournment. Personally appeared David Levy, who makes oath that, since the resolution of the committee, communicated to him on yesterday, to wit, in the forenoon of this day, Colonel Joseph S. Sanchez, United States marshal of East Florida, has arrived in this city; that said Sanchez is a native of St. Augustine, and was there at the exchange of flags; and that be can give material testimony as to the inhabitancy of Moses E. Levy in Florida. This deponent further states that he. expects to prove by said Sanchez that the said Moses E. Levy was in Florida prior to the transfer of that province to the United States.
And the said Affiant further states that, since he was last before the committee, the arrival of Thomas Baltzell, Esq., of Tallahassee, places it in his power to present testimony which this Affiant is desirous to get before the House, through the committee, in respect to the proceeding before the Court of Appeals in Florida, the record of which has been heretofore presented.
This Affiant has also other testimony which he has thought it best to offer to the committee at this time.
The said Affiant therefore asks that the resolution above referred to be rescinded, and that the opportunity be afforded him to examine said witnesses.
The said Affiant further says, that this application is not made for purposes of delay, but to insure justice. D. LEVY.
Subscribed and sworn to before the committee, this 31st day of August, 1841. W. HALSTED, Chairman.
Second application of D. Levy for further time to take evidence, made on the 1st September, 1841. The undersigned asks permission to offer proof that he arrived in Norfolk in June, 1819, where he remained, attending school part of the time, and other part in a counting-room, until 1827, when, after a short visit to the West Indies of two or three months, he returned to Norfolk, and went : thence to Florida, in the same year, where he has continued to reside since that period. D. LEVY. September 1,1841.
Answer of Mr. Coxe to the second application of D. Levy, made on 1st September, 1841, and his admission of facts stated conditionally. After the filing of Mr. Levy's affidavit, filed with the committee yester,day, specifying the particular facts which he deemed material to prove, the undersigned could not anticipate that any further application would be addressed to the committee involving further delay in this case.
Such application has, however, been made, and the point is now specified in relation to which further evidence is desired.
On the condition that this is the last application, and believing the facts wholly immaterial, on behalf of the remonstrants, I will, to save time, admit that the facts as stated are true, with this understanding, that, if any further delay shall be required, or any further evidence offered to the committee, this and every other point in the case, now or heretofore waived, will be insisted upon, and Mr. Levy will be required to prove every fact essential to give validity to his election.
R. S. COXE, for Remonstrants.
September I, 1841. Application of D. Levy to take further evidence on the morning of September, 1841.
The undersigned asks permission to present depositions rebuttal of that presented by the agent, Peter Sken Smith, this morning, and subscribed and sworn to by him. He also asks permission to offer proof of the character of Colonel Joseph S. Sanchez, a witness in this case, and also as to the date of his arrival in the United States and of his residence during his minority.