Committee Report in the Twenty-Seventh Congress, Second Session Citizenship of David Levy Page 3
Committee Report TWENTY-SEVENTH CONGRESS. SECOND SESSION. David Levy, of Florida Territory. In this case it was alleged that the delegate (from Florida) was not a citizen of the United States. Although (he evidence was not conclusive, the committee was of opinion that the spirit of the naturalization policy of the country had been fully satisfied. It was also held that the domicile of the father is the domicile of the son during the minority of the son, if the son be under the control and direction of the father. During the first session the committed reported against Mr. Levy, but upon a more thorough examination of the case, at a subsequent session, that decision was reversed. The final report only is given.
IN THE HOUSE OF REPRESENTATIVES, March 15, 1842. Mr. Barton, from the Committee on Elections, to which the subject had been referred, submitted the following report:
That the objection made to the right of the delegate rests solely upon the allegation that he is not a citizen of the United States. His election by a due majority of the legal voters of Florida has not been disputed. They have examined the question raised with that care and scrutiny, and at the same time with that liberality, which was due to the interesting and important consequences involved, both as respects the delegate whose political relations with this country are brought into question, and the character of the nation and of this House for justice, and for the observance of that good faith in its national policy which is at once the duty and the ornament of civilized governments. For it will be perceived, in the course of the report, that the degree of credit which should be given to the hitherto recognized acts of certain public officers of the government, evidenced by their authenticated certificates, constitutes an important feature in the inquiry which has been committed to them; and though, in this particular instance, the satisfactory proof which has been made, by extrinsic evidence, of the fact intended to be certified to by those officers, has rendered a consideration of the effect of their acts by no means essential, yet it cannot escape observation that very important and delicate interests of a portion of the population of Florida may, at some time, become involved in litigation by the decision of the House.
After a mature consideration of the additional evidence that has been presented to them, taken in connexion with the testimony reported at a former session, the committee have been led to a conclusion the reverse of that to which they arrived upon that occasion.
In reporting this result, it is due to themselves to say that the merits of the case were not so fully exhibited in the testimony laid before the committee at that time, and that if the facts had been as fully understood then as now, the necessity of a review of the subject at this session might have been spared.
It is admitted by the delegate that he is not a native-born citizen of the United States. But it is in proof that he has lived in the United States from the early age of eight or nine years, has grown up in the belief that he was a citizen, and has exercised the rights and performed the duties of citizenship from the time of his maturity. His right rests upon the 6th article of the treaty between Spain and the United States, of the 22d February, 1819, by virtue of which he claims that his father became a citizen from the day of the cession of Florida to the United States. His father has been a resident of the United States for more than twenty years, has twice taken the oaths of abjuration and allegiance, and is still resident in the country. It is evident, then, that the spirit of the naturalization policy of this country has been fully satisfied; and that if the delegate is evicted of the right of which he has been up to this time in the enjoyment, it must be upon purely technical grounds, and must operate with great harshness and severity upon him.
No principle has been more repeatedly announced by the judicial tribunals of the country, and more constantly acted upon, than that the leaning, in questions of citizenship, should always be in favor of the claimant of it. And it is a principle so entirely accordant with the policy and spirit of our institutions that its propriety cannot fail to meet with ready and general acknowledgment. In the interpretation, too, which such a stipulation as that contained in the 6th article of the Florida treaty should receive, the utmost liberality is dictated, as well by reason and a just policy, as by the rules laid down by writers upon public law, and adopted in the practice of all civilized nations. It was a stipulation in behalf of the subject, in favor of liberty and the security of individual rights—it was a stipulation favorable to population—it was a munificent benefit conceded by the government to those the protection of whose persons and property it was about to assume; and for all these reasons is entitled to a liberal and extensive application. No higher evidence could be required of the beneficent purposes of our government towards those who were connected with the Territories, the dominion of which it was about to acquire, than is afforded by the terms of the article referred to; and it would ill become the representatives of the nation to restrict by nice and over-scrupulous distinctions the benefits designed to be conferred.
It is not, then, with a narrow and contracted spirit that the question involved in this case should be examined or decided.
The first point to which the committee have directed their attention is, as to the fact of the inhabitancy of Moses E. Levy (the father of the sitting delegate) in Florida at the time of its transfer to the United States.
It is proper, in the first place, to fix with precision the day from which the transfer of Florida dates. It is matter of historical record that the transfer of the ceded country, under the treaty with Spain, commenced at St. Augustine on the 10th July, 1821, and was completed at Pensacola on the 17th day of the same month. Upon the same day Governor Jackson issued his proclamation, according to a form furnished to him from the State Department for the purpose, announcing that the government theretofore exercised over the provinces of the Floridas, under the authority of Spain, had ceased, and that of the United States of America was established over the same.
This proclamation, together with the several commissions under which Governor Jackson acted, will be found annexed to this report, marked No. 2.
It was on the 17th day of July, 1821, then, that the sovereignty of the United States over the Floridas was proclaimed, and this day appears to have been universally adopted as the day of the transfer—the point of time from which the cession dates, without reference to the different days upon which the flags were exchanged at St. Augustine and Pensacola. It was so adopted in the legislation of Governor Jackson, while administering the government in Florida, and acquiesced in by the executive department of the United States government. It was so expressly adopted afterwards in the legislation of Congress, in an instance of striking applicability, to wit, the act of Congress of 26th May, 1822, "granting donations of land to certain actual settlers in the Territory of Florida," (Laws of U. S.. Vol. 7, p. 294;) in which act the land commissioners are directed " to receive claims to land founded on habitation and cultivation commenced between the 22d February, 1819, and the 11th July, 1821, when Florida was surrendered to the United States." This act applied to every part of Florida.
The same direct and specific designation of that day as the day of transfer, and applicable to the whole of the ceded Territories, without distinction, is found throughout the local legislation of Florida; for repeated instances of which, see 1st volume of Florida Laws, pp. 11, 94, 154, et passim.
The committee will now proceed to the inquiry, whether Moses E. Levy was an inhabitant of Florida on the 17th day of July, A. D. 1821.
The question of domicile has been a fruitful source of difficulty to courts. It is because no fixed or universal rule can be adopted for its test. The animus manendi is the principal point looked to in the ascertainment of domicile. If the intention to establish a permanent residence be ascertained, the recency of the establishment, though it may have been for a day only, is immaterial. The intent is, in each case, the real subject of inquiry; "and the circumstances requisite to establish the domicile are flexible, and easily accommodated to the real truth and equity of the case."—(1 Kent's Comm., 76.)
The proof as to the inhabitancy of Moses E. Levy on that day, as exhibited to the committee, consists—
1st. Of the certificates of Forbes and Worthington, in 1822, as to his inhabitancy.
2d. Of general testimony as to the date and character of his settlement in Florida.
1st. As to the proceedings of Worthington and Forbes, it appears that a few days after the cession of Florida an ordnance was proclaimed by Governor Jackson, the purpose of which was to provide a mode of ascertaining the fact of the inhabitancy of those who claimed the benefit of the 6th article of the treaty. The ordinance will be found at large, annexed hereto, marked No. 3. It directs that the mayor should " open a register, and cause to be inscribed the names, age, and occupation of every free male inhabitant, who may be desirous to profit by the provisions of the 6th article of the treaty, provided the person or inhabitant who may thus desire to have his name inscribed shall first satisfy the mayor, or such other person as may be appointed to open registers, that he teas really an inhabitant of the ceded territory on the 11th day of July, 1821; and provided, also, that he will, of his own free will and accord, abjure all foreign allegiance, and take the oath of allegiance prescribed by the laws of the United States. The ordinance afterwards provides for the issue, to each person so registered, of certificates of inhabitancy from the register's office, and of citizenship from the secretary of the Territory, based upon such certificates of inhabitancy. The reasons which operated with Governor Jackson in the enactment of this ordinance are explained in his communication of July 30, 1821, to the Secretary of State, an extract from which is presented herewith, marked No. 4.
Under this ordinance Moses E. Levy was registered on the 4th March, 1822, as an inhabitant, took the oaths of abjuration and allegiance, and received a certificate of inhabitancy from the mayor, and a certificate of citizenship from the acting governor and secretary, Worthington. These proceedings will be found herewith, marked No. 7. A copy of the ordinance under which these proceedings occurred was transmitted to the State Department, with his communication of the 30th July, 1821, "for the approval of the President;" and on the 28th August, 1821, Secretary Worthington communicated to the Department of State a copy of his letter of same date to Governor Jackson, reporting his transactions at St. Augustine, and announces his having opened the registry required by the ordinance, in a manner calculated to attract attention. He says: "Accordingly, under the waving flag of the Union, on the 25th, the civil officers assembled, with a large concourse of people. Some officers of the navy and army were present, and forty-odd Indians who had just come in. I opened the ceremony by a short address, confined to the occasion, then administered the oath to Judge Fitch, who successively swore in Colonel Forbes, the new mayor, and the other officers; and the registry for naturalization was opened at the same time." The subject of this ordinance was thus fully brought to the notice of the executive department of this government at an early period, and appears to have received its acquiescence. At the ensuing session of Congress the letter of Governor Jackson, of the 30th July, 1821, together with the copies of this and other ordinances, were communicated to the House of Representatives, and appear to have been acquiesced in by Congress; for, by the 13th section of the act of 30th March, 1822, for the establishment of a territorial government in Florida, the laws then in force in Florida (of which this ordinance was one) were continued in force. At a subsequent period, to wit, by the act of 7th May, 1822, "to relieve the people of Florida from the operation of certain ordinances," this ordinance was, among others, repealed—the repeal to take effect the succeeding June.
On the 21st May, 1822, Acting Governor Worthington transmitted to the Department of State the register of inhabitants who had presented themselves under the ordinance, and received certificates, calling attention to the case of Moses E. Levy, which was described as a special one: No objection appears to have been made at any time by the department to those proceedings. The letter of Governor Worthington, with the register, &c., are printed at large with the former report, and may be found at pages 121 et sea of this report—No. 10 of last session. (See Appendix.)
The reasons for the enactment of that ordinance, the effect and operation of the proceedings under it, and his own opinion of the degree of faith to which they are entitled, are set forth in a letter of Hon. H. M. Brackenridge, which was presented to the committee by the delegate. Although this letter cannot be received as evidence in the case, yet the high standing of the writer, his reputation as a jurist, particularly in the civil law practice, (which was at that date the system still in force in Florida,) and the excellent opportunity which he had of forming an opinion upon this subject during his long judicial service in Florida, so far entitle it to respect and consideration that the committee have thought proper to append it to the report, marked A.
The delegate brought to the notice of the committee the instances in which the proceedings, under the ordinance were recognized in the transactions of the custom-house, both in his father's case and those of others whose names appear upon the register. See items Nos. 10, 11, and 12, of the evidence.
He also called our attention to the item marked No. 13, which was presented to show to what an extent titles to property would be disturbed by the repudiation of the proceedings under the ordinance. The item consists of a list of conveyances to which persons contained upon the register transmitted by Worthington are parties, taken from the records of a single county. He also referred the attention of the committee to item No. 6, showing the adoption of a similar proceeding in Louisiana, by Governor Claiborne, with the approval of Mr. Madison, then Secretary of State.
Not deeming it necessary in this case to discuss the extent to which the United States is bound to recognize and adopt the proceedings under this ordinance, the committee abstain from a decision which, if possible, involving, as it does, right of property to such an extent, should be left to the judicial department of this government. They feel free, however, to say that certain it is, Moses E. Levy could never, after that proceeding, have screened himself from responsibility as a citizen of the United States by disputing the fact of his having been an inhabitant of Florida, within the meaning and operation of the treaty, at the date of the cession.
[The report quotes at length from the evidence, and concludes as follows :
It appears, by the testimony, that David Levy, the delegate, arrived at Norfolk, in the State of Virginia, from the island of St. Thomas, in the West Indies, in the year 1819, (being then eight or nine years of age,) and was there put to school. That, in 1827, he left Virginia and went to Florida, to his paternal home, and has continued a resident of Florida to the present time, being a period of fifteen years' residence in Florida and twenty-three within the jurisdiction of the United States. That he has always exercised and enjoyed the rights of a citizen of the United States; that he has held repeated trusts in Florida, by election of the people, for which citizenship of the United States constituted an express qualification.
It further appears, by the testimony of his father, that he was never informed of there being any doubt, error, or misunderstanding in the s: statement of facts, as presented in the memorial of his said father to Governor Worthington; and that, at the time of the renewal of the oath of allegiance made by Moses L. Levy, at St. Augustine, in 1831, the delegate was living in Alachua county, which is an interior county of East Florida, engaged in the direction of his father's plantation, (see depositions of Dell and Price,) and there is no evidence that he knew anything of his father's doubts, or of the steps he had adopted to satisfy his mind. On the contrary, from his age and pursuits at the time, it is most probable that he did not. The good faith, then, in which the delegate has relied upon the indisputableness of his citizenship cannot be questioned.
It appears, further, that there have been repeated trials of his right within the past two years.
1st. Before a grand jury of St. John's county, sitting in St. Augustine, James Pellicer says: "I never heard his citizenship called into question until lately. It was brought before the grand jury about a year ago. Upon this grand jury there were many of the old inhabitants or natives of Florida, and the opinion of the jury was that David Levy was a citizen. The question before the grand jury was, whether the inspectors of an election had acted correctly in receiving Mr. Levy's vote. Some of his enemies brought it up before the grand jury. It was presented by David R. Dunham." This David R. Dunham is the same individual who heads the remonstrance in this case, and whose deposition, as a witness, has been heretofore noticed.
2d. By the Executive department of the United States. The letter of the delegate to the Secretary of State, dated July 25, 1840, will show that, in making application for a passport, he referred the attention of the department distinctly to the proceedings on file there, in evidence of the inhabitancy of his father. The letter is herewith published, (marked No. 27.)
3d. By the highest judicial tribunal of Florida, the court of appeals of that Territory. This court consists of the judges of the several districts, who hold their commissions and receive their salaries from the United States; and writs of error and appeals lie directly from that tribunal to the Supreme Court of the United States in the same manner as from the United States circuit courts. It appears to have been decided by that court, the judges unanimously concurring, after full argument, "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 6th article of said treaty, and hath been ever since, and now is, such citizen of the United States of America." This decree was rendered on the 13th day of February, 1841, and bears every mark of deliberation, for the rule under which the question came up had been issued on the 27th January preceding, and required cause to be shown on the following Friday, so that full time occurred to admit of mature consideration.
4th. By the popular tribunal; for it appears that the question has been raised before the people of St. Augustine, where the facts are best known, and that their voice has been decisive in his favor.
It is further manifest that the general sentiment at St. Augustine has been that his father and himself were in the same category with the old inhabitants generally, and their descendants.
Juan Andres, an old inhabitant, says : "Have always considered David Levy an American citizen, the same as the other young men of the place, who are sons of the old inhabitants of Florida."
James M. Gould says: "I have always been on intimate terms with the old inhabitants of St. Augustine, especially the Spanish portion, and the most prominent, and among them have never heard the citizenship of David Levy doubted. They are truly American people, who adopted the American laws after the cession, and have watched, with a jealous eye, any infringement of them, and who do more towards sustaining them than many native-born Americans. They have generally supported David Levy at the elections, and considered him as much a citizen as themselves."
Joseph Manucy, another old inhabitant, says: "I never heard that any one doubted that he was a citizen until the question was started by Peter Sken Smith. David Levy was always much beloved by the Floridians, because he behaved himself as a gentleman. I have always considered him as much a citizen as myself."
Antonio J. Triay, another old inhabitant, says: "I never heard, until lately, that any one doubted that he was entitled to the right of a citizen. I have considered him as much a citizen as myself I always considered him the same as any of the boys who have been raised here; and, so far as my knowledge goes, such has been the opinion of the old native inhabitants of the place. So far as I know my friends, they would never have voted for a person whom they supposed to be an alien."
James Pellicer, another old inhabitant, says: "Since the question of David Levy's citizenship has been before the public, the old inhabitants of the place have often discussed it; and, from what they remembered of the arrival of Moses E. Levy and of David Levy, they have always decided that David Levy was a citizen by the same right as themselves."
Pedro Benet, another old inhabitant, says: "I have always considered him a citizen, by the right of his father; -and such, as far as I know, has been the general opinion of the native inhabitants of Florida who were here before the change of flags."
The 4 th section of the act of Congress of 14th April, 1802, secures to the infant children of persons naturalized the benefit of their parents' naturalization, provided such children were at the time living in the United States. It matters nothing whether the naturalization be effected by act of Congress, by treaty, or by the admission of new States, the provision is alike applicable. The condition of the parent is impressed upon the child. This provision, however, of the law is not necessary in the case of the delegate; for the principle is perfectly settled and universally admitted that a minor cannot acquire a domicile, but that the domicile of the parent is the domicile of the child during minority—more especially if he be under the control and direction of the parent.
The committee do not deem it necessary to discuss further the various points, growing out of the facts above presented, in respect to the delegate's right. They have regarded the strong case made out in respect to the inhabitancy of his father—the repeated decisions which have been made directly upon the question, by a jury, by the judicial tribunals, by the executive departments of the general government, and by the people of Florida—the general sentiment upon the subject at St. Augustine, which could not have arisen and remained so long undisturbed without substantial ground—the evident good faith in which the delegate has been so long enjoying the rights and performing the duties of a citizen—as affording a cumulative mass of evidence in favor of the rightfulness of his claim which the committee cannot otherwise than yield to. At all events, it would certainly require a more clear case than is made out by the jarring and contradictory testimony of the witnesses, against him, most of whom are themselves remonstrants, to overcome the violent presumption in favor of his right which is raised by the various evidences above referred to, and the force of which but few impartial minds can fail to admit.
They therefore report, as expressive of their opinion, the following resolution, which they recommend for the adoption of the House:
Resolved, That David Levy, the present delegate from Florida, is now, and was at the time of his election, a citizen of the United States, residing in Florida, and is entitled to his seat in Congress as a delegate from said Territory.
The following resolutions have also been adopted in committee, at different stages of its proceedings:
Resolved, That, from the evidence taken since the last session of Congress, and received by the commit tee, together with that which was then on file, the committee are of opinion that Moses E. Levy, the father of David Levy, was an inhabitant of Florida on the day of the transfer of that Territory to the United States.
Resolved further. That the domicile of the father is the domicile of the son during the minority of the son, if the son be under the control and direction of the father.
A vote upon this case was never reached in the House. An attempt was made to continue the investigation, upon fresh evidence submitted, but it failed, Mr. Levy retained his seat to the close of the Congress.