Life of James Buchanan, Fifteenth President of the United States. v. 1 (of 2)

by George Ticknor Curtis

Now, sir, under this provision, these sixty thousand free inhabitants had a right to frame a constitution whenever they pleased. They had a right to determine which of them should be electors of delegates to their own convention for that purpose, and which of them should not. It rested solely within their own discretion, whether the elective franchise should be confined to the citizens of the United States, or be extended to other inhabitants of the Territory. It was the right and the duty of Congress first to determine the boundaries of the States to be formed within the limits of the Northwestern Territory. Had this duty been performed, the free inhabitants of Michigan, after they amounted to sixty thousand, would have become a distinct political community under the ordinance. They would have possessed the sovereign right to form a constitution; and if the constitution were republican, and in conformity to the ordinance, they might have demanded admission, by their delegates, into the Congress of the United States. They could not have been refused without a direct violation of the solemnly pledged faith of the nation. If Congress had objected that persons, not citizens of the United States, had been permitted to vote at the election for delegates, they might have triumphantly presented this ordinance, and declared that the question was settled by its terms and its spirit; that the time had arrived when they were entitled to shake off their Territorial dependence, and assume an equal rank with the other States of the Union. Throughout the ordinance there is a marked distinction between “free inhabitants” and “citizens of the United States.”

It is true that Congress have never yet determined the boundaries of the State of Michigan; but their omission to do so could not affect, in any degree, the right of the free male inhabitants to vote for delegates to the convention which framed their constitution. As soon as Michigan shall have been admitted into the Union, the boundaries of Wisconsin will then be irrevocably determined. It will be the last of the five States into which the Northwestern Territory can be divided under the terms of the ordinance. When that Territory shall contain sixty thousand free inhabitants, they will have an absolute right to demand admission, as a State, into the Union, and we cannot refuse to admit them without violating the public faith. Still, I should not advise them to frame a constitution without a previous act of Congress.

The precedent in the case of Tennessee, on which I commented when I addressed the Senate on Wednesday last, has completely silenced all opposition in regard to the necessity of a previous act of Congress to enable the people of Michigan to form a State constitution. It now seems to be conceded, that our subsequent approbation is equivalent to our previous action. This can no longer be doubted. We have the unquestionable power of waiving any irregularities in the method of framing the constitution, had any such existed. It is wiser, I admit, for Congress, in the first instance, to pass such an act; but, after they had refused to do so, from year to year, the people of Michigan had no other alternative but either to take the matter into their own hands, or abandon the hope of admission into the Union, within any reasonable time.

But I am not done with this Tennessee precedent.

It will be recollected that when North Carolina ceded to the United States the territory which now composes the State of Tennessee, it was specially stipulated that the inhabitants within the same should “enjoy all the privileges, benefits and advantages,” set forth in the ordinance for the government of the Northwestern Territory. This provision makes the case of Tennessee one precisely in point with the present. I would ask, then, who voted at the election for delegates to frame the constitution of Tennessee? Let the proclamation of Governor Blount, issued in obedience to an act of the Territorial legislature, answer this question. He declares “that all free males (not free male citizens,) twenty-one years of age and upwards,” shall be entitled to vote. Under this proclamation every free male inhabitant of the Territory had a right to vote, no matter how short a time his inhabitancy may have continued. In this respect it differs from the Territorial law of Michigan, which requires a previous residence of three months.

With a full knowledge of these facts, General Washington, in his message to Congress of the 8th of April, 1796, on the subject of the admission of Tennessee into the Union, declares that “among the privileges, benefits and advantages thus secured to the inhabitants of the Territory south of the river Ohio, appear to be the right of forming a permanent constitution and state of government, and of admission as a State by its delegates into the Congress of the United States, on an equal footing with the original States in all respects whatever, when it should have therein sixty thousand free inhabitants; provided the constitution and government so to be formed should be republican, and in conformity to the principles contained in the articles of the said ordinance.”

The State of Tennessee was accordingly admitted. At this early day, when the ordinance was better understood than it can be at present, no objection was made from any quarter, so far as I can learn, that delegates to the convention which formed the constitution of that State, were voted for by inhabitants who were not citizens of the United States. Certain it is, that no such question was raised by General Washington. Even Mr. King, whose report was decidedly adverse to the admission of this State, never, in the most distant manner, adverts to this objection which has now been so strongly urged by Senators.

I stated when I last addressed the Senate, as a proposition clearly established, that under the ordinance, the States formed out of the Northwestern Territory had a right to confer the elective franchise upon the inhabitants resident within them at the time of the adoption of their constitutions, whether they were citizens or not. I then also asserted, that the States of Ohio and Illinois had not only exercised this power to the extent which Michigan had done, but had gone much further. They had not, like Michigan, confined the elective franchise to inhabitants actually resident within their respective States, at the time of the adoption of their constitutions; but had made a general provision by which all such inhabitants, though not citizens, would be entitled to vote in all future time. These positions, which I thought impregnable, have been violently assailed; and it has been contended that, under the provisions of these constitutions, no persons, except citizens of the United States, are entitled to vote. This renders it necessary that I should again turn to these constitutions. The first section of the fourth article of the constitution of Ohio declares, that “in all elections, all white male inhabitants, above the age of twenty-one years, having resided in the State one year next preceding the election, and who have paid, or are charged with, a State or county tax, shall enjoy the right of an elector; but no person shall be entitled to vote, except in the county or district in which he shall actually reside at the time of the election.” The fifth section of the same article varies the expression, and confers the right of voting “on white male persons,” who are compelled to labor on the roads. These “white male inhabitants,” or “white male persons,” are not required to be citizens of the United States. The terms are as general as they can be. They embrace all persons, whether citizens of the United States or not, who have resided within the State for one year, and are in other respects qualified. Besides, it would be easy to show, by adverting to other parts of this constitution, that the framers of it, in several cases, when they intended to confine its benefits to citizens of the United States, have so declared in express terms. We have heard it stated that by a judicial decision, the right to vote has been restricted to citizens of the United States. This decision has not been produced. I should be very much pleased to see it. I am aware that judicial construction can work wonders; but if any court has decided that “all white male inhabitants,” or “white male persons,” are restricted in their meaning to white male citizens of the United States, it is a stretch of judicial construction which surpasses anything of which I could have conceived.

The constitution of Illinois is still more general in its provisions. It declares that “in all elections, all white male inhabitants, above the age of twenty-one years, having resided in the State six months, next preceding the election, shall enjoy the right of an elector; but no person shall be entitled to vote except in the county or district in which he shall actually reside at the time of the election.” We have been informed by the Senators from Illinois, that the practice of that State has always conformed to the plain meaning of the constitution. At this day, any alien, who has resided within that State for six months, is in the full enjoyment of the elective franchise. Indeed, this privilege has induced aliens to settle in that State in preference to others where they cannot vote until after they have become citizens of the United States.

Now, sir, I wish to be fairly understood upon this question. As a general principle, I do not think that any State of this Union ought to permit any person to exercise the right of an elector who is not either a native or a naturalized citizen of the United States. There may have been, and I think there was, a propriety in conferring the elective franchise upon the inhabitants of the Territory, actually resident therein, although not citizens, who had a right under the ordinance to participate in the formation of the constitution. Beyond this, the power, even under the ordinance, is extremely doubtful. Michigan has wisely confined herself within these limits. She has not followed the example of Ohio and Illinois. These States have been admitted into the Union, notwithstanding the extravagant provisions in their constitutions in favor of foreigners. Would it not then be extremely ungracious to exclude Michigan, when no foreigner can ever hereafter enjoy the right of voting, except such as were resident within the limits of the State at the time of the formation of her constitution?