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the other half for the use of the county; otherwise, judgment to be given for the defendant. The court below entered judgment for the plaintiff for $100, which was here assigned for error.
Douglass and McConnel, for the appellant.
Walker, Strong and Butterfield, for the appellee.
SMITH, J. The points presented for examination and consideration are doubtless of deep interest, inasmuch as the judgment of the circuit court changes the rule regulating the exercise of the elective franchise, which has prevailed, ever since the adoption of the state constitution, under that constitution and the laws of the state, which have been uniform and unchanged, as to the qualification of voters, during that period, and has now, for the first time, received a new and entirely different construction, from that which has hitherto prevailed; which, if it be a just and true exposition of our constitution, and the laws regulating elections in this state, will deprive a large portion of the inhabitants of the state of the hitherto admitted invaluable exercise of the right of suffrage. The serious character of the question presented for consideration, and the magnitude of the interests involved, obviously demand of this tribunal the exercise of its most cautious, earnest and deliberate judgment, before a decision be pronounced. No considerations but those of imperative duty, founded on the solemn convictions of the weight and justice of its reasons for the foundation of its opinion, ought to prevail; and in the conclusions to which it should arrive, it should be alone animated by a desire to decide the question upon a just interpretation of the constitution and laws of the state. The effects of its decision, if just and accurate, cannot be looked to, be they what they may, as regards those who may have supposed ulterior political consequences might arise therefrom, according to the pre
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dominance of the views of the one side or the other of the questions discussed. The duty of the court is as plain as it is imperative; it must decide the question, as it finds the facts arising on the record, and agreeable to the manifest intentions of the constitution and laws of the state. What might or might not be expedient, or more conformable to a supposed more proper principle of political economy, than the rule the framers of the constitution and laws of the state have thought proper to adopt, and by which the case must alone be governed, is not for the court to assume as a rule of action to govern its determination. The plain and obvious import of the constitution and laws, it is the duty of the court to ascertain; and when there is neither ambiguity nor doubt, the result can be easily arrived at.
It becomes important, then, to inquire what qualifications the constitution has prescribed a person shall possess, to entitle him to exercise the right of voting at elections in this state. The 27th section of the 2d article of the constitution 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." In reference to the first general election holden under the constitution, it is declared, in the 12th section of the schedule to the constitution, that "all white male inhabitants, above the age of twenty-one years, who shall be actual residents of this state, at the signing of this constitution, shall have the right to vote at the election to be held on the third Thursday and the two following days of September next." R. S. 48; Gale's Stat. 36.
It is here to be remembered, that the constitution of the state of Illinois was required, by the act of congress of the 18th April 1818, to be republican, and not repugnant to the ordinance of the 13th July 1787, between the original
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states and the people and states of the territory northwest of the river Ohio, excepting so much of said articles as relate to the boundaries of states therein to be formed. By the resolution of the congress of the United States of the 3d December 1818, it is expressly declared, that the constitution and state government so formed, are republican, and in conformity to the principles of the articles of compact between the original states and the people and states in the territory northwest of the river Ohio, passed on the 13th July 1787; and that the state of Illinois should be admitted into the union, upon an equal footing with the original states, in all respects whatsoever.
It is of importance here to ascertain whether the ordinance of 1787 permitted resident aliens to be representatives in the territorial legislatures, and to vote at elections for representatives. By the ordinance, it is provided, that no person shall be eligible or qualified to act as a representative, unless he shall have been a citizen of one of the United States three years, and be a resident in the district, or, unless he shall have resided in the district three years; and in either case, shall likewise hold, in his own right, in fee simple, two hundred acres of land within the same; provided also, that a freehold in fifty acres of land in the district, having been a citizen of one of the states, and being resident in the district, or, the like freehold, and two years' residence in the district, shall be necessary to qualify a man as an elector of a representative. R. S. 54; Gale's Stat. 41. It will readily be perceived, that the qualification for eligibility to the office of representative in the territorial legislature, is twofold; first, three years a citizen of one of the United States, and a resident of the district, and the owner, in his own right, in fee simple, of two hundred acres of land within the district; or, secondly, three years' residence within the district, and the like ownership of two hundred acres of land, without being a citizen of one of the United States. The qualification to vote for such representative is, first, a freehold in fifty acres
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of land in the district, and having been a citizen of one of the states, and a resident of the district; or, secondly, a like freehold of fifty acres of land, and two years' residence in the district.
The policy of the ordinance, here disclosed, continued to be the policy of the congress of the United States, with various modifications in favor of the extension of the right of suffrage in the territories, from time to time, as its various acts of legislation disclose and distinctly recognise, and authorized aliens to enjoy the elective franchise. The emphatic term "man," it will be seen, is used, as marking the person who is to exercise the right, whether that man be a citizen or resident of the territory. The "act to enable the people of the eastern division of the territory northwest of the river Ohio, to form a state constitution and a state government, and for the admission of such state into the union, on an equal footing with the original states, and for other purposes," declared, "that all male citizens of the United States, of full age, who resided within the territory one year previous to the day of election, and who had paid a territorial or county tax; and also all persons having, in other respects, the legal qualifications to vote for representatives in the general assembly of the territory, were authorized to choose representatives to form a convention to frame a constitution and state government." This same provision, with the exception of the term of residence being reduced from one year to one day, was incorporated in the act to enable the people of Indiana territory to form a constitution and state government, and for the admission of such state into the union. The act to enable the people of the Illinois territory to form a constitution and state government, and for the admission of the state into the union, is precisely similar, except in the reduction of the time of residence to six months. The several acts of congress erecting and regulating the territorial government, passed from time to time, not only prescribed the qualifications of voters, but
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gave to aliens, as well as citizens, the right of electing and being elected to office. Under the terms used in the acts to enable the people of the territories referred to, to form constitutions and state governments, it will be perceived, that "all persons having, in other respects, the legal qualifications to vote for representatives," were permitted to vote for members of the state conventions; thereby including aliens as well as citizens, who possessed the other qualifications then and there enumerated in the law.
In May 1812, the congress of the United States passed an act to extend the right of suffrage in the Illinois territory, having previously, on the 3d February 1809, by an act, established the territory of Illinois, and granted to the inhabitants the same rights, privileges and advantages as were secured to the people of the territory of the United States northwest of the river Ohio, by the ordinance of 1787; and so much of the same ordinance as related to the organization of the general assembly in said territory, was declared to be in force and operation in the Illinois territory. The act of May 1812 provides, that upon the admission of the Illinois territory into the second grade of government, each and every 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 said territory. By the 3d section of the act, the right of voting for a delegate to congress, was extended to the same persons. It will be seen, that this act abolished the property qualification before required, and extended the right of suffrage to all white male persons, making no discrimination between the citizen and the resident of foreign birth. It will also be further perceived, that while the right of electing and being elected to office is conferred on persons who