The property qualification was the same both for citizens and for other residents.
[Mr. Buchanan here read other portions of the ordinance to prove that its framers were careful in their use of terms, and always distinguished with great precision, between the use of the words “free male inhabitants,” and “citizens of one of the United States,” etc. He also referred, as a further proof of his position, to the language of that portion of the ordinance which provides for the election of the legislative council.]
Now, sir, said Mr. B., have I not clearly established the position, that, under this ordinance, aliens were entitled to elect and to be elected, provided they had resided a sufficient time in the territory, and were possessed of the necessary freehold qualification? If I can comprehend the meaning of the plainest English words, neither doubt nor difficulty can longer rest upon this question.
But it has been urged that in order to become a freeholder, a person must first have been a citizen of one of the States. In reply, I might content myself by saying that this is begging the question. It is assuming the very proposition to be proved. But I shall give this objection two answers. In the first place, although I have become somewhat rusty in my legal knowledge, yet I feel perfectly safe in asserting, that, under the strict principles of the common law of England, an alien may purchase real estate, may hold real estate, may transmit real estate to his heirs, or devise it by his will. His title is good against all mankind, except the crown; and can only be divested by what in technical language is termed “an office found” in favor of the king. Admitting that the Government in this country possessed the same right, they have, in the most solemn terms, abandoned it, by holding out inducements, under the ordinance, to foreigners, to become the proprietors of real estate within the Northwestern Territory.
An answer still more conclusive may be given to this objection. The old Congress which framed the ordinance had the unquestionable power to enable aliens to purchase and hold real estate. It was their policy to promote the settlement of this Territory; and for this purpose they have plainly declared, by the ordinance, that aliens, or in other words, that any free male inhabitant, might hold real estate. Even at this day aliens, without any restriction, purchase lands from the United States. To lure them to make purchases, as we have done, and then to attempt to forfeit their estates, would be a violation of every principle of justice and public faith.
The Congress of the United States have repeatedly, in relation to Ohio, Indiana, and Illinois, placed the same construction on this ordinance which I have done. I shall not exhaust either myself, or the Senate, by referring to more than one or two of these instances. In April, 1802, when Congress passed the act authorizing the people of Ohio to form a constitution and State government, it became necessary to prescribe the qualifications of the electors of delegates to the convention. They performed this duty in the fourth section of that act. It declares as follows: “That all male citizens of the United States who shall have arrived at full age, and resided within the said Territory at least one year previous to the day of election, and shall have paid a territorial or county tax, and all persons having, in other respects, the legal qualifications to vote for representatives in the general assembly of the territory, be, and they are hereby, authorized to choose representatives to form a convention.”
Who were these persons having, in other respects, the legal qualifications to vote for Territorial representatives? Let the ordinance itself answer this question. They were free male persons, not citizens of the United States, who held a freehold in fifty acres of land within the Territory, and had resided there for two years. Congress, actuated by the more liberal and enlightened spirit of the age, in the year 1802, dispensed with the freehold qualification in regard to citizens of the United States. They suffered it to remain, however, in relation to those persons within the Territory who were not citizens: but who possessed the legal qualifications, in other respects, to vote for Territorial representatives.
I shall merely refer to another instance in the case of Illinois. On the 20th May, 1812, Congress passed an act to extend the right of suffrage in that Territory. Under this act, no freehold was necessary, in any case, to the exercise of the elective franchise. The spirit of the age had corrected this error in politics. I am glad of it. Our own experience has taught us that the citizen, in humble circumstances, who pays his personal tax, feels as deep an interest in the welfare of the country, and would make as many sacrifices to promote its prosperity and glory, as the man who has an income of thousands from his real estate. Wealth has never been, and never can be, a true standard of patriotism. By the first section of this act, Congress declared that “each and every free white male person, who shall have attained the age of twenty-one years, and who shall have paid a county or Territorial tax, and who shall have resided one year in said Territory previous to any general election, and be, at the time of such election, a resident thereof, shall be entitled to vote for members of the legislative council and house of representatives for the said Territory.” You perceive, sir, that Congress, by this act, no longer retained the distinction which they had established in regard to Ohio, between citizens of the United States and persons in other respects entitled to vote for members of the Territorial legislature. They are all blended together into the same mass, and the elective franchise is conferred upon them all, under the denomination of free white male persons, who have paid taxes and resided one year in the Territory. The phrase citizens of the United States does not once occur in the act. In the second and third sections these free white male persons are denominated citizens of the Territory, not citizens of the United States. Under the ordinance of 1787, they were, in fact, constituted citizens of the Territory; and this phraseology is, therefore, perfectly correct.
The Senator from New Jersey (Mr. Southard) has undertaken the Herculean task of proving that neither the ordinance nor the act of 1802, in relation to Ohio, nor the act to which I have just referred, nor the other similar acts conferred upon any persons not citizens of the United States the right of voting. How far he has been successful, I shall leave for the Senate to judge.
These portions of the ordinance to which I have heretofore referred were subject to the control of Congress. They have been modified and changed in several instances, some of which have been referred to and commented upon in this debate. But I now come to speak of one of those articles of the ordinance, essential to the correct decision of this question, which is placed beyond the power of Congress. To use its own emphatic language, they “shall be considered as articles of compact between the original States and the people and States in the said Territory, and forever remain unalterable, unless by common consent.” This solemn agreement has been confirmed by the Constitution of the United States. No person either denies or doubts the sacred character and the binding force of this contract. The fifth of these articles of this ordinance declares as follows: “And whenever any of the said States shall have sixty thousand free inhabitants therein, such State shall be admitted by its delegates into the Congress of the United States, on an equal footing with the original States, in all respects whatever; and shall be at liberty to form a permanent constitution and State government; provided the constitution and government so to be formed shall be republican, and in conformity to the principles contained in these articles; and, so far as it can be consistent with the general interest of the confederacy, such admission shall be allowed at an earlier period, and when there may be a less number of free inhabitants in the State than sixty thousand.”