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pretation of the constitution, for a period of more than twenty years, universal in its operation, and undisputed up to the present time.
This contemporaneous legislative exposition, which was coeval with the state government, has assuredly settled the question. It is conceived to be no longer a debatable one, and ought not now to be disturbed; the practice under it, and the universal acquiescence of all departments of the government, and of the people, in it, ever since the creation of that government, ought to be understood as a positive affirmance of its correctness. It is a contemporaneous exposition of the most forcible nature, and too obstinate and strong to be now shaken, by objections which are of very recent origin. Not only have the legis lative and executive departments, on all occasions when the law was presented for their action, sustained it, but the council of revision, composed, in part, of all the members of this court, with whom is lodged the veto power, have given to it, its repeated and united sanctions; as well those who composed the judicial department, and who were chosen under the constitution, immediately after its adoption, as those who have subsequently succeeded them, and have been members of this council.
From an examination of the journal of the convention, the 27th section seems not to have undergone any revision; it stands in the constitution as it did in the original draft. But the 11th section of the 3d article, which provides for the election of sheriff's and coroners, presents one fact, deemed material in the consideration of the present question; one, it is thought, affording much light on the meaning of the term "inhabitant," as used by the members of the convention, and as they then understood it. On the 12th August 1818, Mr. White, chairman of the committee appointed to frame and report to the convention a constitution for the people of the territory, reported a draft of a constitution; the 11th section of the 3d article of this draft contained the following provision: "there
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shall be elected in each and every county in the said state, one sheriff and one coroner, by the citizens who are qualified to vote for members of assembly, and shall be elected at the places where elections for members of the general assembly are held, and shall be subject to such rules and regulations in said elections as shall be prescribed by law; the said sheriffs, respectively, when elected, shall continue in office two years, be subject to removal or disqualification, and such other rules and regulations as may, from time to time, be prescribed by law; no sheriff shall be eligible for said office for a longer term than four years, in any term of six years." This section, it will be perceived, was materially amended in the convention, in many respects, for its final adoption; and the word "citizen" stricken out, and the word "those" adopted in its stead; thus, making the provision, as it now stands in the constitution, in this particular, to read: "there shall be elected by those who are qualified to vote for members of the general assembly, and at the same times and places where the election for such members shall be held, one sheriff and one coroner, whose election shall be subject to such rules and regulations as shall be prescribed by law."
The convention seems to have studiously avoided the use of the word "citizen," wherever the qualification for voting was in question; and in no instance, have they adopted it as a correlative term with "inhabitant," except in the 23d section of the 5th article, where it is declared, that "every citizen may freely write and print on every subject, being responsible for the abuse of that liberty;" and in the 1st section of the 7th article, providing for the holding of a convention to amend the state constitution, wherein it declares, "and if it shall appear that a majority of the citizens of the state, voting for representatives, have voted for a convention, the general assembly, at its next session, shall call a convention." Now, a person may be, in the ordinary sense of the term, a citizen of this state, but still, not a citizen of the United States.
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The term here used, is not conceived to be, in any other sense than that of an inhabitant; because if such had been the sense of the convention, it would, doubtless, have used the term "citizen" instead of "inhabitant," in the article defining the right of suffrage.
The consequence of insisting that additional qualifications of citizenship should be required, would be most onerous in its operation on a numerous portion of the French inhabitants, who came to the country since 1787, as we have already shown, and who have reposed, in good faith, under the hitherto admitted and undisputed recognition of their political rights. There are many of them neither citizens by birth nor adoption; and to now interpose a regulation that would disfranchise them, would be most unjust; to say that they shall not now enjoy, under the constitution which they, in part, assisted to form and ratify, rights which they have exercised ever since its formation, would be most dangerous, for its unexampled character of bad faith, and for its innovation on rights hitherto conceded without question. It will not even do to say, that they may be admitted to exercise the right of suffrage, though aliens, and that they are not the aliens intended to be excepted, in the construction proposed to be given to the constitution, by those who insist that, under the term "inhabitant," none but citizens of the United States are meant. The exclusion must, of necessity, reach them, if it reaches others, because they are not citizens of the United States, and were not included in the ordinance as the persons whose rights were saved thereby. If, under the general provision which conferred on them the elective franchise, natives of other countries, who are inhabitants of the state, are entitled to similar privileges, which, it is supposed, ought not to have been, as a matter of sound policy, bestowed on them, it is no sufficient reason, because those rights have been thus incidentally extended, that the early immigrants should, for
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such cause, suffer a deprivation of those which they are, of right, entitled to.
It is, however, apprehended, that the authors of the constitution, for the reasons already stated, intended to extend the right of suffrage to those who, having by habitation and residence, identified their interests and feelings with the citizen, are, upon the just principles between the governed and governing, entitled to a voice in the choice of the officers of the government, although they may be neither native nor adopted citizens. If the right of suffrage be a natural, and not a conventional one, there can be no just cause for abridging it, unless by way of punishment for crime, and under very peculiar circumstances, and for peculiar causes. The convention had, doubtless, a desire to make the recognition of the right stand on as extensive grounds as were compatible with the perpetuity of the compact they originated, the good order of society, and the protection of the rights declared; in this spirit of interpretation, it is supposed, the views of its members will be best supported and maintained. The sentiments here expressed seem to have been entertained by the convention, and expressed in the concise but comprehensive declaration, contained in the 5th section of the 8th article of the constitution, which "that all elections shall be free and equal."*
There is, however, another view in which this question is to be considered. The provision regulating the mode of challenge to the elector's right to vote, declares that, if the oath or affirmation prescribed shall be taken, the elector's vote shall be received, "unless it shall be proved, by evidence satisfactory to a majority of the judges, that said oath or affirmation is false." The judges, then, where the oath is taken or affirmation is made, and such oath or
*The supreme court of Pennsylvania have actually decided (by a bare majority only), that these words do not restrain the legislature from imposing restrictions upon the right of suffrage, in one part of the state, which are not obligatory in other portions of it!
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affirmation is not proved, by evidence satisfactory to a majority of them, to be false, have no discretion; they are bound to receive the vote, and moreover, by another provision of the election law, are subject to a severe penalty in case of refusal. Whether the elector be a native or adopted citizen, or an unnaturalized foreigner, they have no right, nor are they bound, by any necessity in the discharge of their duty, to inquire. They are vested with no discretion in the matter; if the elector possess the qualifications required by law, which, we have seen, are few and simple, all extraneous inquiries are irrelevant to the performance of their duty. They can no more add to, than they can diminish, the law, by their opinion of what it ought to be; nor can any interpretation be put on it by them, to disfranchise those whom the law clearly embraces within its provisions. The law is so plain and simple, that it carries on its face, its own obvious meaning, and is not susceptible of doubt or ambiguity; the oath has been made the test of the right to exercise the franchise, and contains within itself the standard by which that right is to be determined. Unless the legislature shall make citizenship an indispensable qualification to the enjoyment of the elective franchise (and the constitution clearly admits of the exercise of such power by that body), this tribunal cannot add such a prerequisite, by construction.
In reference to the construction which may have been given, in other states, by legislative enactments, to the meaning of the term "inhabitant," and that it is to be considered "citizen," I cannot, even admitting it may have been there correctly decided, on such occasions, see any reason for the adoption of such a construction on the present occasion. In the first place, it seems to me, to be a perversion of the use and meaning of language, as universally understood, and an imputation on the authors of its use, in the cases referred to, of a want of knowledge of the appropriate meaning of terms. It is clear, that a