(Place of voting.) ment is dumb. And if the parties were able to bring before the return judges no better case than is made by that paper, the judges did well to reject the army vote, and award the certificate according to votes of whose legality they had some evidence. But to help out the record, we choose to read the agreement in connection with the petition of complaint, and we have already seen, that that did set forth, not as fully as it ought, but with tolerable precision, the qualified character of the volunteers who cast the votes in question. By the expression "army vote," in the agreement, we are then to understand, the votes alluded to in the petition of complaint; this is absolutely necessary to meet the main question of the cause, for there is nothing in the agreement, in and of itself considered, to raise that question, or any other that is worthy of judicial notice. But even when we construe the agreement by the precedent parts of the record, we cannot learn in what state the votes were cast. The army raised in Pennsylvania has been employed, most of the time, in other states; though camps of instruction have been maintained within our own state. The reasonable presumption is, that the votes denominated the army vote, were cast partly within and partly without our state; and such, we have reason to believe, was the fact. No account whatever was made of the place of voting in the court below. The "army vote," as it is most loosely called in the agreement of 24th December, was cast somewhere; and counted, in pursuance of section 43d, and the sections immediately succeeding, of the general election law of 2d July 1839. Purd. Dig. 379. The 43d section is in these words: "Whenever any of the citizens of this commonwealth, qualified as hereinbefore provided, shall be in any actual military service, in any detachment of the militia or corps of volunteers, under a requisition from the president of the United States, or by the authority of this commonwealth, on the day of the (Place of voting.) general election, such citizens may exercise the right of suffrage, at such place as may be appointed by the commanding officer of the troop or company to which they shall respectively belong, as fully as if they were present at the usual place of election; provided, that no member of any such troop or company shall be permitted to vote at the place so appointed, if, at the time of such election, he shall be within ten miles of the place at which he would be entitled to vote, if not in the service aforesaid." This section and its sequents are virtually a reprint of the act of 29th March 1813. 6 Smith's Laws 70. The proviso of that act prescribed two miles from his usual place of voting, as the condition on which the volunteer in actual service might exercise suffrage elsewhere. Such a proviso, whether two miles, as in the act of 1813, or ten miles, as in the act of 1839, is an intimation of that which we have other reasons for believing, that the legislature of neither of those years had any thought whatever of legalizing military voting outside of our own territorial limits. They probably meant to give the citizen-soldier, who should be in actual service within the state, on the day of the general election, an opportunity to vote, if his engagements detained him at the prescribed distance from his domicil. And so understood, there was nothing in the state constitution, when the act of 1813 was passed, which its terms could be thought to contravene. The constitution of 1790 was then in force, and the qualifications of an elector which that instrument prescribed, were that he should be a freeman of the age of twenty-one years, that he should have resided in the state two years next before the election, and within that time paid a state or county tax, which should have been assessed at least six months before the election; or that he should be a son, between twenty-one and twenty-two years of age, of a citizen qualified as aforesaid. This was the constitutional rule, and the whole of it, up to January 1st, 1839, when the amended constitution of 1838 took effect; and (Place of voting.) therefore, when the revisers of our civil code, who were very competent constitutional lawyers, reported, in 1834, a general election law, substantially the same that is now in force, they did not hesitate to retain the substance of the act of 1813. Had their report been made after the constitution of 1838, we would scarcely have expected them to incorporate the provisions of the act of 1813, for, as we shall see hereafter, the constitution of 1838 made the precise place of voting an element of the right of suffrage. For five years their report was not taken up by the legislature, and when, near the close of the long session of 1839, it came up, the legislature passed it pretty much in the words submitted by the revisers, without adverting to the changes which, in that interval of five years, had taken place in our fundamental law. We are not to wonder at this, for instances of even more careless legislation are not uncommon. The act was a long one, made up of 157 sections, was not touched until a late day of the session, and was adopted by the two houses on the 25th June, the very day they adjourned; it was signed by the governor on the 2d July 1839, which gave the act its date. If, in the hurry of closing a long session of the legislature, any one of the numerous provisions of the act suggested a constitutional doubt to the mind of a single member, he doubtless dismissed it upon faith in the revisers, without remembering that he was called upon to consider a very different constitutional question from any that engaged their attention. Tradition tells of no constitutional debates on the act of 1839, in the legislature that passed it. I mention these circumstances, as showing how inconclusive is the argument which the learned judge below attempted to deduce in favor of the constitutionality of the act, from the high character of many of the members of the legis lature. The great question now before us, is, whether the 43d section of the act can be reconciled with the first section of article 3d of the amended constitution? Having (Place of voting.) already quoted the 43d section, I will bring into contrast with it, the very terms of the constitutional provision: "In elections by the citizens, every white freeman of the age of twenty-one years, having resided in this state one year, and in the election district where he offers to vote, ten days immediately preceding such election, and within two years paid a state or county tax, which shall have been assessed at least ten days before the election, shall enjoy the rights of an elector; but a citizen of the United States who had previously been a qualified voter of this state, and removed therefrom and returned, and who shall have resided in the election district, and paid taxes as aforesaid, shall be entitled to vote after residing in the state six months; provided, that white freemen, citizens of the United States, between the ages of twenty-one and twenty-two years, and having resided in the state one year, and in the election district ten days, as aforesaid, shall be entitled to vote, although they shall not have paid taxes." By comparing this clause with the corresponding provision of the constitution of 1790, it will be seen in what the amendments consisted. The word "white" was introduced before "freemen," excluding thereby negro suffrage, which had prevailed to a slight extent; the state residence was reduced from two years to one; and the words requiring a residence in the election district where he offers to vote, were added. The latter amendment was probably suggested by the registry law which was passed in 1836 for the city and county of Philadelphia; the main object of which was, to identify the legal voter, before the election came on, and to compel him to offer his vote in his appropriate ward and township, and thereby to exclude disqualified pretenders and fraudulent voters of all sorts. The idea of a registry of legal voters, as a means to purity of elections, was hinted by Ch. J. Tilghman, in 1816, in Catlin v. Smith, 2 S. & R. 266 (ante 117). When the third article came up in the convention of 1838, the political party that had (Place of voting.) favored the Philadelphia registry law, brought forward and supported this amendment, as calculated to accomplish, substantially, the same results for the whole state, which the registry law proposed to accomplish for Philadelphia. The political party to whom the registry law had always been distasteful, opposed the amendment as an unnecessary clog upon freedom of suffrage, but on a division, it was adopted by a vote of sixty-four to sixty, every member from the city of Philadelphia, where the registry law had proved acceptable, voting for it, and every member from the county of Philadelphia, which had never relished the registry law, voting against the amendment. 9 Debates in Convention 300-20. Regarding the amendment as designed in general to exclude fraudulent voting, the question now is, what construction shall be given to its particular phraseology? Construing the words according to their plain and literal import (and we must presume that the people of Pennsylvania construed them so, when they adopted the amendment), they mean, undoubtedly, that the citizen, possessing the other requisite qualifications, is to have a ten days' residence in an election district, and is to offer his ballot in that district. The second section of this article requires all popular elections to be by ballot. To "offer to vote" by ballot, is to present one's self, with proper qualifications, at the time and place appointed, and make manual delivery of the ballot to the officers appointed by law to receive it. The ballot cannot be sent by mail or express, nor can it be cast outside of all Pennsylvania election districts, and certified into the county where the voter has his domicil. We cannot be persuaded that the constitution ever contemplated any such mode of voting, and we have abundant reason for thinking that to permit it would break down all the safeguards of honest suffrage. The constitution meant, rather, that the voter, in propriâ persona, should offer his vote in an appropriate election district, in order that his neighbors might be at hand to |