tion, the act of assembly necessarily uses the
phrase legal and qualified voters; but whether
qualified according to the rules and regula-
tions ordained by the old constitution, or
those which the convention were authorized
to prescribe, is the very question in issue.
In reply to my suggestion that this is a legal
question, more properly belonging to the judi-
cial than to the executive department of the
State, you argue against the correctness of
such a view, and claim the right to ask fur ex-
ecutive interference upon the ground of there
being no adequate and practicable remedy
which a court of law could conveniently ap-
ply, and you apparently assume that the sub-
stantial injury inflicted is upon the individual
voter who is precluded from the exercise of
his rightful franchise, and you advert to the
practical inconvenience of attempting to rem-
edy that wrong' by suits or writs of mandamus,
brought by every voter thus disfranchised,
against the judges of election. To all that I
agree—but have not numerous questions of
the same kind constantly arisen out of every
election we have ever had? is not the rejection
of legal and the talking of illegal votes a
subject of complaint always occurring at elec-
tions, and has there been yet found no remedy
for such abuses but suits the individual
voters against the judge?
The chief wrong' indicted in such cases has
been generally supposed to consist in the elec-
tion of one officer and the defeat of another,
resulting from such abuse of the elective fran-
chise, and when an account is kept, as it
always may b", of the votes wrongfully ad-
mitted or excluded, the tribunals invested
with the power of canvassing the matter,
when they have purged the polls and counted
or excluded the legal or illegal votes, have
afforded what has been generally regarded as
an adequate 'remedy, and sufficiently vindi-
cated the disfranchised voter by thus ultimately
making his vote effectual.
And so, in the case under consideration,
does not the wrong supposed to be occasioned
by the action of the' convention consist really
and substantially more in the other provis-
ions which its constitution has introduced
than in qualifying the elective franchise of
those to whom it is submitted; and, is not
the subject of most absorbing interest connec-
ted with the approaching election the ques-
tion whether that constitution is to supplant
the old one, rather than whether this in in or
that is deprived of the right of voting on it.
If this be so, why may not the injuries ap-
prehended from the new constitution be still
obviated as in cases of other' elections, if it
be adopted by what can hereafter be shown
to be the unlawful exclusion of those who, if
permitted, would have voted against it?
But whatever may be the inconveniences
which you recapitulate of seeking a remedy
through the courts of law, and however such
a consideration might operate in determining |
me to execute an admitted power, it cannot
have, and I think you will agree with me,
ought not to have any weight in inducing me
to employ one of most questionable authority.
Again, you say that if this were a judi-
cial question it does not follow that it is not
a political one," and you intimate the opin-
ion that for the infraction of political rights,
such as the right of franchise, (lie law does
not always profess to furnish a remedy, and
that the executive is clothed with authority
to apply one. Doubtless this is in some re-
spect a political/ question, and may admit,
too, that such question may at times arise
that can be solved only by the political pow-
er of the. State; but where is the authority
for the assumption that such power is embo-
died in its executive?
The people of the State are the source of
that power, and, according to the acknowl-
edged theory and practice of our form of gov-
ernment we are to search for its representa-
tives amount" those whom they have duly del-
egated to ordain or alter their organic law,
rather than any where else. I felt, if you
will allow me to say so, some surprise that
one of your discriminating mind should have
referred, at such length, to the proceedings,
in the case of General Schenck's order at the
election of 1863, and to my action in connection
therewith, for the purpose of showing
that in the oath which the convention has
prescribed there is an interference with the
constitutional rights of the voters as unwar-
rantable as that which General Schenck un-
dertook to exercise. and the same necessity
fur my interference. I deem it proper to say
that my sentiments in regard to that military
movement have undergone no change what-
ever, but I confess myself unable to perceive
any analogy between the cases. In the one a
military commander arranges the form of an
oath which he requires the judges of election
in certain cases to administer, menaces them
with arrest if they refuse, and sends a aquad
of soldiers to the polls lo see that this order
is enforced. I did in that case issue a proc-
lamation, and called to the attention of the
judges of election the law they were sworn to
administer. No one pretended that any other
law existed, and the quotation you make
from my message correctly shows my object,
and the feeling which prompted my action.
The judges were menaced with arrest for
refusing lo obey an unauthorized military
order instead of the undisputed laws of the
State, and I said to them that for thus doing
their duty they should be protected to the
extent of any power that I possessed.
How dues the case stand that we are now
considering? The constitution is of course
the same to-day that it was a year ago. But
the people of the State have declared, in the
manner provided by law, their intention to
change it. They have elected delegates for that
purpose—their delegates assembled in pursu- |
