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(Proof of qualification.)
person may be a citizen of the United States, when he is an inhabitant of a foreign state. But the adoption of such a rule as has been resorted to in other states, by which a term, admitting, it would seem, of no doubt of its true sense, has been made to imply the very reverse of its universal acceptation, is eminently forbidden here. It cannot, in my judgment, be just, because of the facts which existed, at the time of its use in the ordinance of 1787. The evident sense in which it is employed in that ordinance, and the subsequent facts which followed, and have uniformly accompanied its employment, from its incorporation in the territorial laws of the Northwestern territory, the acts of congress for the admission of those territories and their reception into the union, and the steady and uniform rule adopted by every department of the government of this state, without a single exception, up to the present hour, should be conclusive of its meaning.
It is well understood, that it was the policy of the congress of the United States, at the formation of the ordinance of 1787, to invite immigration into the Northwestern territory; and hence, as one strong inducement for immigration, the right of suffrage was extended to aliens in those territories, as they should be successively formed out of the Northwestern territory proper. Whatever may have been the causes and motives which induced New York or Massachusetts, or any other state, to give the legislative interpretation, which has been done, to the clauses of their constitutions which regulate the right of suffrage in those states, the facts and circumstances which existed in reference to the states formed out of the Northwestern territory, did not, in any way, occur there; consequently, their decisions form no guide, admitting they were correct, on the present occasion.
But it may be said, Ohio is one of the states formed out of that territory, and she has adopted the exposition, and construed the term "inhabitant" to mean "citizen."
(Proof of qualification.)
Under what particular causes, the legislative construction adopted by her legislature in 1831, was brought about, the means of determining are not at hand; nor can it be averred, with certainty, what was her practice anterior to the passage of that act. In the very first act adopted by her legislature, after the formation of her constitution, it is certain, that no prohibition to the reception of aliens' votes existed, nor up to the passage of the act of 1831. That act was passed on the 15th April 1803; the 13th section provided, that the elector should openly, and in full view, present his ballot to the judges of the election, on which should be written or printed the name of the person and office voted for; and it confined the elector to the township in which he resided. The 14th section is in these words: "that the judge to whom the ticket shall be delivered, shall, upon the receipt thereof, pronounce with an audible voice, the name of the elector; and if no objection be made to him, and the judges be satisfied that the elector is legally entitled to vote at that election, he shall immediately put the ticket into the box, without inspecting the name or names written thereon." The 15th section declares, "that when objections are made to an elector, and in all other cases where the qualification of a person to vote is a fact unknown to either of the judges, they shall have power to examine such person, on oath or affirmation, touching his qualifications as an elector, which oath or affirmation either of the judges is hereby authorized to administer." Laws of Ohio, 1803. In 1809, an act was passed on the 15th February, amendatory of the act of 1803, by which the 15th section referred to and quoted, was amended, by the addition of the following, after the words "touching his qualifications as an elector," they may inquire into the qualification of such elector, on the oath or affirmation of disinterested witnesses, which oaths or affirmations either of the judges is hereby authorized to administer."
From these general provisions, the judges of the election
(Proof of qualification.)
were constituted the sole judges of the qualifications possessed by the elector presenting himself to vote under the provision of the state constitution, which, except as to the time of residence and payment of a tax, is similar to our own. What was the early practice, under the constitution and laws of Ohio, no distinct means of knowing are at hand. It has been distinctly affirmed, that the early practice was, to admit aliens, as had been the rule while under a territorial government, and such would seem to have been the intention of the legislature, by the passage of the acts of 1803 and 1809. They gave no legislative construction to the first section of the 4th article of their state constitution, probably conceiving it so explicit, that no one could be mistaken in the meaning of the term "inhabitant." It has, however, been affirmed, in a debate which occurred in the United States senate, in 1836, on the question of the admission of Michigan into the union, before referred to, that such was the practice in Ohio, and as distinctly admitted in that debate by senator Ewing of Ohio, who said, "that was done in troublesome times."
On the 13th February 1831, we find the legislature of that state passed an act, by which they gave not only, it is conceived, a legislative exposition to the first section of the 4th article of the constitution of that state, denying the right and changing the practice, but absolutely adding the additional qualification of citizenship, to authorize the elector to vote. The 10th section of that act is as follows: "that the judge to whom any ticket shall be delivered, shall, on the receipt thereof, pronounce with an audible voice the name of the elector; and if no objection be made to him, and the judges be satisfied that the elector is a citizen of the United States, and legally entitled, agreeable to the constitution and laws of the state, to vote at the election, he shall immediately put the ticket in the box, without inspecting the names written thereon, and the clerk shall enter the names," &c. Here it will be perceived, that the elector is required to be a citizen of the
(Proof of qualification.)
United States, in addition to being legally entitled, agreeable to the constitution and laws of the state, to vote, before he can be admitted to vote in that state. Now, was it not enough, under the constitution, that he was "a white male inhabitant of the state, had resided one year next preceding the election therein, and had paid or been charged with a state or county tax," to entitle him to vote? The constitution required no more; but the legislature require what the constitution does not; they superadd the requisition of citizenship, attempt to extend the constitution, and impose a condition beyond the constitution itself. They do not say the terms "white male inhabitant," shall be construed to mean "citizen," but that the party shall possess this political character, before he shall enjoy the right of suffrage.
I have not the means of knowing, under what particular circumstances, twenty-eight years after the adoption. of the constitution, and the passage of the first law relative to the elective franchise, it became necessary to make this radical change in the law, evidently an attempt to change rights guarantied by the constitution of the state; but if history is to be consulted, the same debate which occurred in the senate of the United States, would seem to furnish the clue. Senator Benton, after remarking on the duty of congress to guaranty the republican character of a state constitution, added "and for that purpose had cognisance over the state constitutions, and for nothing else;" anything further was an invasion of the rights of the states, and congress had no right to meddle with the qualifications of voters in any of the states, old or new. This brought him to the objection, that the voting privilege was extended to the inhabitants of the territory, at the time of the adoption of the constitution, and not confined to those who were citizens of the United States; he left this question where it had been placed by others, as an affair that belonged to the state, and which every state had decided for herself, and many of them, so as to give aliens the right
(Proof of qualification.)
of voting, and even holding office; he referred to Illinois, Louisiana and even Ohio, and asked, was it not matter of history, that, within a few years past, the legislature of Ohio had decided that the word "inhabitant" meant "citizen?" and they defined it so, because a gentleman, who was a subject of the King of Great Britain, was presiding over their deliberations, and might act as their lieutenantgovernor.
It seems, that in 1814, an action was brought in Ohio, in the county of Jefferson, against three persons, as judges of an election in that state, who had refused to receive the vote of a person named Johnston, on the ground that he was not a citizen of the United States, but an alien and a native of Great Britain, and had not been naturalized agreeable to the laws of the United States, and was not, according to the laws of Ohio, entitled to vote at such election; and on the further ground, that Great Britain and the United States were then at war. The question having been decided on a demurrer to the pleas of justification, which contained the causes above stated, as the grounds of defence, the supreme court of that state, in 1817, decided the pleas to be a bar to the action, and rendered judgment accordingly in favor of the defendants. The case has never been reported, and it is well understood that there is no written opinion remaining on file in that court, which discloses the reasons on which the judgment was predicated; whether on the ground of the plaintiff's being an alien enemy, or an unnaturalized citizen, or whether he was excluded by the qualifications of the election laws of that state, then in force. The pleadings in the cause show that the defendants rested their defence of justification, in their refusal to receive the vote, on the law of the state then in force, and not on the provisions of the constitution of the state; no question appears, from the record, to have been raised, whether the laws prescribing the qualifications were in conflict with the constitution, and we are wholly unable to determine what may have