election returns, filed as they are annually or
biennially in this department; have ever been
subjected to a legal scrutiny as a preliminary
to executive action, I did not fee] at liberty to
refuse the request, and at once agreed that
counsel should have full access to these re-
turns, stipulating only that, as according to
the view I took of the case, there were no
facts about which I could inquire except such
as were suggested on the face of the returns ;
that all objections or discussion should be
limited accordingly, and that the friends of
the constitution should beadvised of the pro-
ceeding and allowed the opportunity of an-
swering these objections, as well as making
any other to the home vote that might occur
to them,
The past two or three days have been de-
voted to this examination, and a great num-
ber of exceptions have been taken to these
returns, and argued with the ability that dis-
tinguishes the learned counsel who conducted
the examination. He had been already ap-
prised that my previous examination of that
subject had brought my mind to the conclu-
sion, several times expressed, that so far as
my action was concerned I was bound by the
provisions of the constitution which the con-
vention had adopted, and whilst we differed
widely as to its authority, be very courteously
waived all discussion upon that subject, and
confined his argument to exceptions taken to
the sufficiency or correctness of the military
returns, and those I now propose to consider,
The first point raised in the argument is
that the oath required by the constitution to
be taken by voters was required of the sol-
diers voting under its special provision as
well as of the citizen voting at the county
polls, and as the returns of the soldiers' vote,
except in two or three cases, fail to show that
such oath was administered, that their vote
must be rejected. The requirements of the
constitution in this respect seem to me very
plain. In directing the manner of voting
on the constitution, provision is first made
for the vote in the counties of the State, and
afterwards, and under a distinct heading en-
titled "Soldiers' Vote" special provision is
made for the vote of those in the military
service. In the former, and the former only
is anything said about the oath. After di-
recting on what days in the counties and city
of Baltimore the election is to take place, the
section proceeds to require that the judges of
the said city and the several counties of the
State " shall receive at said election the votes
only of such electors as are qualified accord-
ing to the provisions of this constitution,"—
thus expressly showing that the limitation
upon the elective franchise thus imposed was
confined to those voting before the ordinary
judges of election appointed by the county
and city authorities. And when in a subse-
quent clause—still however on the subject of
the home vote, and before reaching the article |
i relating to the soldiers—it is said that " the
judges of election shall administer to every
person offering to vote the oath," &c., the
same judges of election previously indicated
are manifestly referred to, a conclusion con-
firmed by the tenor of the succeeding section
on the same subject, wherein the governor is
required to exclude from count the votes of
" any county or city" where the judges fail to
certify that the oath has been taken.
When in the subsequent part of the same
article the special provision is made for the
vote of the soldiers, although it is minute in
its directions as to the courge they are to pur-
sue, not a word is said on the subject of any
oath to be taken by them. Indeed, I under-
stand the learned counsel in making this ob-
jection to admit that, looking only to the lan-
guage of the constitution, the oath is not re-
quired of the soldiers, but he thinks they
come within the spirit and purview of that
instrument and should take the oath required
of all others. It seems to me that the very
contrary is the unavoidable inference, and
that the whole scope and spirit of the consti-
tution show that it was not intended that the
soldiers should take the oath. in providing
as it does in the fourth article that no person
who has ever been in armed hostility to the
United States, or has given aid or comfort to
those who have, &c., &c., shall exercise the
right of suffrage, it expressly excepts from
the operation of that disqualifying provision
those who have "since such unlawful acts
voluntarily entered into the military service
of the United States," &c., or ".shall be
the day of election actually and voluntarily in
such service." So far, therefore, from the
soldiers being required either by the words or
spirit of the constitution to take the oath in
question, although a man may have commit-
ted all the acts denied by the terms of the
oath, his employment in the military service
at the time he offers his vote completely con-
dones his past offence and entitles him to vote.
And an examination of the returns of the
soldiers' vote will show that in every instance
they certify affirmatively that the persons vot-
ing were in the military service of the United
States.
The next of the objections, reviewing them
aci-ording. to what I consider the order of
their importance, is that founded on the as-
sumption that no soldier belonging to any
company of Maryland volunteers can vote un-
less such company is attached to a Maryland
regiment, and therefore that the inembers of
the different batteries of artillery, of the four
companies of the late third regiment of infan-
try, now reduced to a battalion, the four in-
dependent cavalry companies (not a part of
any regiment,) and the independent company
of infantry known as the Patapsco Guards, are,
by the terms of the constitution, all excluded
from the right of suffrage, and the counsel
accordingly insists that their votes should not ) |
