do anything reasonable to procure for them
furloughs to return to their homes to vote as
they may please; but I would not, and I do
not believe you would, advocate an unconsti-
tutional measure, or vindicate it when done
although done for the brave and patriotic
men in the armies of the Union.
But you say, " If any wrong has been per-
petrated by the convention, or any one should
suffer in person or property by its wrongful
actions, surely the judicial tribunals of the
State are the proper ones to redress the inju-
ry, and possess the power to do so." It is a
maxim of law, I know, that there is no right
without a remedy; this, of course, refers to
rights of persons and property under existing
laws; but I am root satisfied that there is a
remedy always in the law for the infraction
of political rights. Will you point out the
mode or manner of redress to one-third of
the legal voters of the State after they may
be wrongfully excluded from the polls, and
by that act of exclusion a new government is
instituted and officers are sworn to support
it? The right of suffrage is a political right
guaranteed by the constitution. If it toe obstructed,
and the party be injured, he may
sue the judges of election, but that only
irwallets him a pecuniary. compensation and
docs not restore his right nor prevent the
public wrong done by the rejection of his
vote. How could suits be maintained by
one-third of the voters of the State against
the judges of election? Could any judge be
supposed capable of liquidating, in money,
the enormous amount of costs and damages
that might be awarded? In a single case. it
might be so, but in such a multiplicity how
could it be? The very jurors and judges
who would be called to support the new con-
stitution would have to decide upon his case.
Could that be a "relief" of the injury?
How few would be able to engage in such
litigation? But bow can the injury bepre-
vented? Is it by mandamus? How can it
be obtained and prosecuted by the masses?
Judges of elections are being constantly
changed—their appointments are frequently
on the eve of an election. If absent, others
are to be elected, and sometimes on the
morning of the election, at which time they
qualify.
Would it be practicable for every voter to
apply fur and obtain such a writ, and have it
served and the case argued before election
day, or on that day? The writ is not one of
right, but rests in the judge's discretion, and
we might have the anomalous spectacle of
one judge granting the writ and another re-
fusing it, and thus the election be conducted
on different principles in different judicial
districts. The theory of judicial redress may
do for individual, cases in matters of property
and the rights which appertain to it, but how
can it be applied or executed in a great polit-
ical question which strikes at the fundament- |
als of the government? If the courts could,
by possibility, pronounce the proceedings of
the convention unconstitutional in a case
where an individual was a party, that de-
cision would not affect the government, nor
its administration; it would not destroy the
government de facto, and it would continue
its functions; the maxim of nought without
a remedy, is only applicable where the rem-
edy is co-extensive with the right and the
injury, and its exercise fully adequate to
the exigencies of the case. Do you not agree
with me in these principles? But if if were
a judicial question, it does not follow that it
is not a political one. Is it not essentially
political? if it is, to whom are the people
to look for a preventive remedy? Can it be
to any one but yourself, who are clothed with
the powers of the government, civil and mil-
itary, to enforce the laws. I respectfully lay
down the following positions:
First—That the acts of the convention In
respect to a test oath and soldiers voting out
of the State, are clearly unconstitutional,
Second—That the execution or enforcement
of those acts may inflict a permanent
and flagrant wrong upon the people of the
State by putting into operation an unconstitutional instrument
Third—That the consummation of a wrong
so great and enormous ought to be avoided.
Fourth—That the power to prevent it is
somewhere.
Fifth—That the courts cannot effectually
exercise the power; for their redress would
succeed and not precede the perpetration of
the wrong.
Sixth—That the executive has the appro-
priate and full power to prevent the wrong,
and should exercise it.
On the 27th October, 1863, Gen. Schenck,
then in military command of the middle de-
partment (Maryland,) issued an order to in-
fluence the then approaching elections. It
recited " that there are many evil disposed
persons now at large in the State of Maryland
who have been engaged in rebellion against
the government, or have given aid and com-
fort or encouragement to others so engaged,
and who may avail themselves of the indul-
gence of the authority which tolerates their
presence, to embarrass the approaching elec-
tion," and he therefore commanded "all
provost marshals and other military officers
to arrest all such persons found at or hang-
ing: about or approaching any poll or place
of election on the 4th November, 1803," &c.
This order ostensibly professed to prevent dis-
loyal persons who bad been in rebellion or
engaged in giving aid and comfort to the
confederates, from embarrassing the election,
and to protect and develop the Union senti-
ment of the State. On the 2d November,
immediately on receiving notice of the order,
you very properly issued a proclamation in
which you denounced the military order, and |
