of the government. The committee have had laid before them the opinion, upon this subject, of the distinguished gentleman at the head of the State Department, and find that he concurs with that which they have expressed. Acting upon the authority of this opinion, the officers of the present Territory have regarded themselves as entitled to hold their offices under their original appointment, made before the State of Wisconsin was formed. Such has been the uniform practice of the government when similar questions have arisen. When, by the act of June 12, 1838, the Territory of Wisconsin was divided, and that of Iowa formed out of the portion lying west of the Mississippi, a judge who had resided west of that river removed and fixed his residence east of it. He continued afterwards to act as judge in the Territory of Wisconsin, to which he had removed, without further appointment or qualification, and was regarded by the President of the United States, Mr. Van Buren, as legitimately entitled to do so. These opinions of the executive department of the government show that the division of a Territory has at no time been regarded by the government as a destruction of its component parts.

The residence of the officer, before he assumes his territorial duties, does not in any way affect the question. A citizen of any State may be appointed to office in a Territory, without any previous residence there. All that the Constitution of the United States requires is that he shall be a citizen of the United States. Governor Catlin and the other officers of the Territory of Wisconsin. before the admission of the State, had the legal right to remove beyond the St. Croix river, and to hold their offices there as officers of the new Territory. Of this the committee do not entertain any doubt. An opposite conclusion would not only disfranchise those inhabitants beyond the St. Croix, but deprive them entirely of the benefits of the government which Congress had already provided for them. This the committee do not suppose that Congress had the power or wish to do.

Although it is not a case in all respects like the one now before the committee, yet the case of Paul Fearing, which was settled by the House of Representatives, at the 2d session of the 7th Congress, is somewhat analogous to it. That case was as follows:

Ohio was admitted into the Union as a State, by act of Congress passed May 1, 1802. On the 6th December, 1802, Paul Fearing took his seat in the House of Representatives as a delegate from the Northwestern Territory, elected before the passage of the act authorizing the admission of the State into the Union. Subsequent to this time, on the 24th January, 1803, a resolution was introduced, declaring that Mr. Fearing was not entitled to hold his seat, inasmuch as he had been elected a delegate by the inhabitants of the Territory of which Ohio constituted a part. This resolution was referred to the Committee of Elections, by whom a report was made in favor of Mr. Fearing's right to his seat.

The report of the committee was not brought to a final vote, but being laid on the table, Mr. Fearing retained his seat; the House thereby affirming the principle that the erection of a Territory into a State does not necessarily vacate the seat of the delegate. Had Mr. Tweedy chosen to retain his seat as a delegate from the Territory of Wisconsin, his case would have been a parallel one with that of Mr. Fearing; and the committee suppose that the House, recog nizing the principle then settled, would have permitted him to retain his seat until the close of the present Congress, as the representative of those who have elected the present claimant. The right of Mr. Sibley is precisely the same, except so far as it may involve the authority of Governor Catlin to order, and of the other officers of the present Territory to conduct the election. That they had such right, the committee have already shown.

The committee are not informed whether or no there had been an election of representatives from the State of Ohio at the time of the settlement of the question in Fearing's case. They apprehend, however, that if there had been, they

would have been permitted to take their seats, and that this would not have deprived Fearing of his right, inasmuch as the right had been acquired before the State was formed. The representative from the State, and the delegate from the Territory, might each have held his seat without any conflict. The principle upon which such a case rests is the impracticability of destroying the right of the people to representation after it has been conferred by act of Congress.

Besides the views thus submitted to the House, there are high considerations of policy favoring the admission of the delegate from this Territory. Within a few months the government has invited settlers to emigrate into this new region of country, by opening an office for the sale of lands. Thousands of acres have been sold, and the population is rapidly increasing. It is not, therefore, to be supposed that the government will now withdraw from them the protection of law. Indeed, the committee think that it is bound by every obligation of good faith to give them the blessings of a continued and regular government.

Entertaining these views, the committee report to the House, for its adoption, the following resolution :

Resolved, That Henry H. Sibley be admitted to a seat on the floor of the House of Representatives as a delegate from the Territory of Wisconsin.

The House on January 15, 1849, adopted the resolution reported by the committee without debate-yeas, 124, nays 62.

THIRTY-FIRST CONGRESS, FIRST SESSION.

Committee of Elections.

Mr. HARRIS, of Tenn.
MCGAUGHEY, Ind.
ASH, N. C.
ANDREWS, N. Y.

Mr. STRONG, Penn.
HARRIS, of Ala.

VAN DYKE, N. J.
DISNEY, Ohio.
THOMPSON, Ky.

HUGH N. SMITH, of New Mexico.

Mr. Smith presented himself as the choice of the people of New Mexico for delegate in Congress. The committee, upon the ground that no territorial government had been established over New Mexico-that the State of Texas claimed a part of this Territory-and finally that at the time of his election Mr. Smith was a citizen of Santa Fé, held that New Mexico was not entitled to a delegate in Congress, and recommended that Mr. Smith be not admitted. The House laid the whole subject on the table, and Mr. Smith was not admitted.

IN THE HOUSE OF REPRESENTATIVES,
APRIL 4, 1850.

Mr. STRONG, from the Committee of Elections, made the following report : The facts which are necessary to a just consideration of the case presented may be briefly stated as follows: The province or department of New Mexico is a part of that territory recently ceded to the United States by the treaty of Guadalupe Hidalgo, and before the cession was a department known to the Mexican constitution, and entitled to representation in the Mexican Congress. It had also its departmental legislature. In the Mexican federal constitution of 1824 it was recognized as one of the territories of the republic, with known boundaries, and in the subsequent Mexican constitutions of 1836 and 1843 it

was made one of the departments of the republic, and as such sent one representative to the national Congress, and was subordinately governed by its own legislature. The department was subdivided into seven districts or counties, five of them embracing territory both upon the east and west sides of the Rio Grande, and two of them being wholly upon the east side of that river. At the date of the cession, therefore, New Mexico had a complete political organization. It is not claimed, and certainly it could not justly be, that this organization continued after the cession of the territory to the United States. New Mexico was acquired, not as a political division, not as a State or a Territory, but as a part of a large tract of country, the title to the sovereignty of which, and to the unappropriated lands, was by the treaty transferred from Mexico to the United States. Upon that transfer all political laws, all governmental or ganizations, ceased to have any legal existence. These facts are, therefore, only stated because an argument is deduced from them in favor of the admission of the memorialist. Your committee have found difficulty in ascertaining the extent of territory and the number of inhabitants embraced within the limits of New Mexico. Before the Texan revolution, the area of the department was about two hundred thousand square miles, of which about one-third was west of the river Rio Grande, and the remaining two-thirds were upon the eastern side. The population of the whole is variously estimated at from eighty to one hundred thousand, of which more than two-thirds are residents of the eastern bank of the river. It is, however, well known that the State of Texas claims as within her limits all the territory east of the Rio Grande, and the validity or invalidity of this claim has never been definitely settled. After the cession of the territory to the United States, New Mexico, or at least part of it not embraced within the limits of Texas, was, and continues to be, without any form of civil government. Lieutenant Colonel Washington was stationed there as a military commandant, but no political organization known to our laws, and none even in fact, had any existence.

On the 21st day of August, A. D. 1849, in accordance with public notice previously given, a considerable number of the citizens of Santa Fé county (one of the counties lying wholly on the east bank of the Rio Grande) assembled in the city of Santa Fé, to consult upon the propriety of organizing a suitable territorial government. At this meeting various resolutions were adopted expressive of their sense of the evils resulting from a continuance of the half-civil and half-military government under which they were then living. A resolution was also adopted requesting Lieutenant Colonel B. L. Beall, then the acting military commandant at Santa Fé, in the absence of Colonel Washington, to recommend to the citizens of the several counties of New Mexico to assemble in mass meetings, and elect delegates to a general convention to be held in the city of Santa Fé on the 24th day of September then next ensuing, "to concert such plans and adopt such measures as might be most effectual for the attainment of good civil government. In compliance with this request, Lieutenant Colonel Beall issued a proclamation to the citizens of New Mexico, recommending to them to assemble in mass meetings, in the different counties, and at designated places, on the 10th day of September, A. D. 1849, for the purpose of electing delegates to a general convention to convene in Santa Fé on the 24th day of September then next ensuing. It was also recommended that the rate of representation be "regulated by the organic laws of the Territory adopted by General Kearny." The proclamation stated the object of the convention to be "the concert of such plans and the adoption of such measures as might be most effectual to the attainment of a good civil government, and the appointment of a delegate to go to Washington to enforce its suggestions and projects, and to urge the early action of Congress in its behalf." In conformity with the recommendations of this proclamation, elections were held, and the delegates elected met in convention at Santa Fé on the 24th day of September, A. D.

1849, nineteen in number, and organized by the election of Rev. Cuva. Antonio José Martinez as their president, and James H. Quinn as their secretary. On the same day the convention proceeded to the election of a delegate to represent the interests of the Territory in the Congress of the United States, and elected Hugh N. Smith, esq., the memorialist, to be their delegate. The convention then proceeded to prepare a plan, to be submitted to Congress, as the basis upon which they desired the civil government of the Territory of New Mexico to be formed, and instructed their delegate to urge upon Congress to give to the country a territorial government embracing the provisions contained in the plan by them recommended. Thus selected and instructed, Mr. Smith asks to be admitted to a seat in the House of Representatives, on the same footing with the delegates from the Territories heretofore organized under the laws of the United States. He presents, as his credentials, a certificate, of which the following is a copy, signed by Antonio José Martinez, the president of the convention, and attested by its secretary:

"Be it remembered, that in the convention of delegates chosen from the seven different counties of New Mexico to assemble in the city of Santa Fé on the 24th day of September, A. D. 1849, for the purpose of forming and proposing the basis of a government which the people of New Mexico desire should be granted to them by the Congress of the United States, and for the purpose of choosing a delegate to represent New Mexico in the House of Representatives of the thirty-first Congress of the United States, Hugh N. Smith was chosen by a majority of all the convention, and declared duly elected said delegate. "Given under our hands, at Santa Fé, this twenty-sixth day of September, in the year of our Lord one thousand eight hundred and forty-nine. ANTONIO JOSÉ MARTINEZ, Presidente de la Convencione.

"JAMES H. QUINN, Secretary.”

Mr. Smith was at the time of his election a citizen of Santa Fé county, and of the city of Santa Fé. There are no other facts which, in the estimation of your committee, should affect the decision of the question which has been referred to them. The difficulties and embarrassments under which the people of New Mexico suffer for the want of some civil government, though doubtless real, cannot be considered in examining the application of the memorialist. They would neither be mitigated nor increased by the consent or refusal of the House to admit Mr. Smith to a seat. Nor is it the province of this committee to inquire into the necessity of establishing any form of government for New Mexico.

The admission of Mr. Smith to the seat which he claims would be a violation of all precedent-a departure from all the established usages of the House. The House of Representatives is now, and ever has been, composed of members elected under the Constitution and laws of the United States, and in accordance with the provisions of that Constitution and those laws. No person elected in any other way, sent by any other authority, has ever been admitted to a seat in the House. The usages of the House have been uniform and unbroken. Territorial delegates have been admitted to seats in this body, with the privilege of debating, though not of voting, ever since the adoption of the Constitution. Indeed, this usage is older than the Constitution itself. Under the old Confederation, by the ordinance of July 13, A. D. 1787, providing for the government of the Territory northwest of the Ohio, permission was given to the legislature of the Territory to elect by joint ballot a delegate to Congress, who should have a seat in the House of Representatives, with the privilege of debating, though not of voting, during the existence of the territorial government. That ordinance was reaffirmed by an act of the first Congress assembled under the present Constitution, and the delegate was thus permitted to hold his seat. In accordance with this precedent, as other territorial governments have been formed and become entitled under their fundamental law to territorial legislatures, Congress has uniformly provided for the admission to a seat in the House

of Representatives of a delegate from each. But in every case the delegate has been chosen under laws enacted by Congress, and from a government subordinate to and emanating from the Constitution and laws of the United States. Other political organizations have existed in portions of the unorganized territories of the United States; but it is believed that none such have claimed, certainly none have been permitted, to enjoy representation here. The case of the Hon. H. H. Sibley, who was admitted as a delegate from the Territory of Wisconsin, is no departure from this usage. Both his election and his admission were based upon the position that the territorial government of Wisconsin was not merged in the State government afterwards formed, but that it continued to have a legal existence over that territory not embraced within the limits of the State after the admission of the State into the Union. The memorialist, however, does not rest his claim upon the Constitution and laws of the United States. He asks to be permitted to represent New Mexico. But, as a government, New Mexico is as much unknown to our laws as is the Great Salt Lake valley, or the territory west of Minnesota. It has already been shown that the political organization which existed while it constituted a part of the republic of Mexico ceased to have any existence when the territory was ceded to the United States by the treaty of Guadalupe Hidalgo. There is now no such Territory, no such government as New Mexico having a legal being. It is conceded that Congress might adopt as its own the organization formerly existing there, and by law recognize the local government which the country enjoyed before the treaty of cession. Upon such recognition, it would become a government under the Constitution and laws of the United States; but even then, unless provision were made for the election of a delegate to Congress, none could be admitted without violation of usage, for no delegate has even been admitted except in cases where privilege has been antecedently granted to elect one, and where the mode of his election has been previously prescribed.

It may also be asserted that such a recognition of New Mexico as an exist ing government can only be made by law, and is not within the constitutional power of the House of Representatives alone. Yet the admission of Mr. Smith to the seat which he claims would be a quasi recognition of New Mexico as an organized government. He claims a seat as a delegate from such a government, and, if admitted, will be admitted as such; for it cannot be asserted that he claims in any other character than as the representative of a Territory. The conclusion cannot be avoided that this house by yielding to him the seat which he asks would recognize the legal existence of New Mexico as an organized government, and impliedly, though indirectly, adopt the political organization which existed before the treaty of cession. It need not be said that such a ratification is not within the constitutional powers of the House of Representatives alone. Until, therefore, Congress shall adopt as its own the government formerly existing in that portion of our territory, your committee are of opinion that no act should be done by the House of Representatives which even by implication may give force and vitality to a political organization formerly existing, but extinguished by the treaty of cession, and unknown to the laws of the United States. It may also be observed that the convention which elected the memorialist did not ask for a recognition of the civil government formerly existing there. On the contrary, their request is that a new territorial government may be formed, constituted upon the basis which they have submitted-a basis which denies the existence of any present governmental organization.

If it be suggested that the memorialist may be received, not in the character of a delegate from New Mexico, as a government or political organization, but as a representative of the inhabitants residing in a portion of the unorganized country belonging to the United States, it may be answered that the facts already stated show that he was elected to act for the Territory of New Mexico as such, including both sides of the Rio Grande. And if such were not the