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act of 1855, and therefore still in force. Let us place them in opposite columns.
Act of 1857 provides:
"Every bona fide inhabitant of the Territory of Kansas, being a citizen of the United States, over the age of twenty-one years, and who shall have resided six months in said Territory before the next general election for members of the council and house of representatives, and no other person whatsoever, shall be entitled to vote at any general election hereafter to be held in this Territory."
The act of 1857, as now construed, would read as follows: " Every bona fide inhabitant of the Territory of Kansas, being a citizen of the United States, over the age of twentyone years, and who shall have resided six months in said Territory before the next general election for members of the council and house of representatives, and no other person whatsoever, shall be entitled to vote at any general election hereafter to be held in this Territory;" but no such citizen shall e permitted to vote unless he has first paid a territorial
Is it not clear that the two provisions would be directly repugnant by the addition to the act of 1857 of a proviso and restriction not contained in that act, but in a previous law. The words of the act of 1857 are general. "Every citizen," &c., shall be entitled to vote on a residence of six months. This language gives the right to vote, in clear and positive terms, to every citizen, &c., who has been a resident for the term prescribed by law. "Every citizen" are general and comprehensive terms, and they cannot be restricted by other words not contained in this law. By the 11th section of the act of 1855 no previous residence is required as a qualification for a voter, but the payment of a territorial tax is made a prerequisite. Now, it is clear, that if, when prescribing a previous residence of six months, in using the general and comprehensive language "every citizen," &c., the legislature of 1857, besides that residence for the first time prescribed by law, had intended, in addition, to require the previous payment of a territorial tax, they would have said so; and not having said so, such words can be interpolated neither by judicial nor executive construction. In fact, it is not a case of construction at all, but of using words which the legislature have not used, and of making provisoes and restrictions for them which they have not made, and of excluding voters from the polls whom they have not excluded. Besides, this is no new question. It has occurred repeatedly in the several States and Territories of this Union, and, as a principle of universal adoption under such laws, it is well settled, without a single exception to the rule, that where one State constitution, regulating the right of suffrage, prescribes certain qualifications of voters, it is complete in and of itself, and is universally regarded as repugnant to so much of any previous constitution which either adds to, or subtracts from, such qualification. And the same rule prevails in relation to State and territorial laws. This is the great American rule of interpretation on this subject, amounting from long established and universal usage, to the force of law.
If there could have been any possible doubt on this subject, it is removed by the provisions of the territorial convention law, passed on the day preceding that on which was enacted the election law, and referred to and made the basis of many of the provisions of the latter. That convention law prescribes a previous residence of three months, and a registry, as qualification for voters; but is just as silent as the
territorial election law on the subject of a payment of a tax, and yet no one has ever pretended that the pre-payment of any tax constitutes a necessary qualification for a voter for delegate to that convention.
No such payment of a tax was ever exacted, and was rarely, if ever, made. And such a construction as is now contended for, that because there was no direct repeal of the tax qualification, therefore it still existed, would render illegal the election of nearly every member of the constitutional convention, and impair the validity of all their acts. The election law of 1855, imposing the tax qualification, was general.
It applied to all subsequent elections, to "every inhabitant" of this Territory, and of the county or district in which he offers to vote, and to all "elective officers." It was as general and comprehensive in its application to every election which could take place under any Territorial law as the legislature could make it, and would apply the restriction of the pre-payment of a territorial tax in voting for delegates to the convention, just as much as in voting for members of the territorial legislature in October; upon this alleged principle, that restrictions or qualifications in preceding laws are not repealed by general provisions in a subsequent statute prescribing for subsequent elections the qualifications of voters. The convention law required a three months' previous residence and registry as a qualification of voters, but was silent, like the election law of 1857, as regards the pre-payment of any tax; and if such a pre-payment, by force of preceding enactments, applies as a qualification for a voter for the Territorial legislature in October, then it would just as clearly follow, that inasmuch as the convention act was equally silent as to the payment of a tax, the voters for delegates to that convention, besides the three months' residence and registry, must have paid a tax also. But the truth is, whilst the tax remains, the qualification applies no more to the election in October than it does to the election of the delegates to the convention, because it was dropped in both acts, and because we have no right to insert a most important provision that is thus omitted by the legislature, and because it is a settled rule in interpreting statutes, that if the legislature had intended, in either case, in prescribing the qualifications, and all the qualifications of voters, to superadd one that was inserted in a preceding law, they would have repeated the restriction in the subsequent statute. How easy was it for the legislature, in prescribing the qualification of voters under the convention or election law, if they intended, in addition to the qualifications named in these laws, to require the payment of a tax, to have said so, and not left it to others to interpolate words which they had excluded. They have not said so, and that is enough. On this subject I have never entertained any doubt, and never supposed there could be any question. And I might have declined the expression of any opinion on either of these points, but for the certain knowledge of the fact communicated to me from almost every quarter of the Territory, and from all parties, that these conflicting constructions of the law, if not settled, will certainly produce collision at the polls, and, most probably, a disastrous civil war and revolution. I claim no authority to instruct the judges of election, by virtue of my official power, how they shall decide; but I give my opinion as others have given
theirs, and with the same sincerity, in the hope that it may tend somewhat to prevent the disasters with which we are threatened, growing out of these conflicting opinions, and that it may render unnecessary a resort to the military force, subject to my orders, to preserve the peace of the Territory. That military force, which is now already here, or daily arriving, is amply sufficient to preserve the peace of Kansas; but it is my sincere hope that the mere presence of this force, competent as it is to suppress insurrection or rebellion, and maintain the authority of the law, will render any collision unnecessary.
On the 19th of August last I communicated to the President, through the Secretary of State, my views on this subject, together with copies of the several territorial laws, and asked the aid of the President and his cabinet to sustain me, by the moral force of their opinion, in preventing a collision and civil war in this Territory, by stating, if such should be the fact, their concurrence with me in these views. In reply to this communication, in a despatch from the Secretary of State to me, under date of the 2d of September, 1857, after remarking, most justly, as I always contended, that I could issue no authoritative mandate to the judges of election on this subject, or control their decision, he says:
"The Territory of Kansas is in a peculiar condition. By your statement, and possessing, as you do, the best means of information, your views, in the opinion of the President, are entitled to great weight. It is in a state of incipient rebellion, with an organized military force prepared to resist the authority of the United States.
"It may therefore become necessary to use the troops placed at your disposal, not only to aid as a posse comitatus in executing the laws, but also to suppress an insurrection. Surely, under these circumstances, if the expression of an opinion in advance of his action, and, it may be, instead of it, which the President honestly entertains, will have a direct effort in preventing a civil war in Kansas, he cannot be justly censured for attempting, by such an expression of opinion, to avert the calamitous result.
"The danger you anticipate arises, as you observe, from the apprehension of a portion of the citizens of Kansas that they will be excluded from the privilege of voting because they have not paid a territorial tax. Now, the President, as well as every member of his cabinet, concurs in opinion with you, that the payment of such tax is not required as a qualification to vote. He and they entertain not a doubt that the 5th section of the act of February 20, 1857, is complete in itself, and prescribes all the qualifications required of a voter, and among these the payment of a territorial tax is not included. They are also firmly convinced that no person whatever, not possessing these qualifications, notwithstanding they may possess the qualifications prescribed for voters by the organic act of Congress of May 30, 1854, has any just claim to the elective franchise."
It will be observed, then, that in view of the deplorable condition of Kansas for the last three years, and the civil war which has so long raged in this Territory, and the imminent danger of a renewal of that conflict, growing out of conflicting views as to the qualification of voters at the ensuing election, the President and his cabinet
have deemed the occasion sufficiently solemn and important to express their full, unanimous, and entire concurrence in the views as to the qualifications of electors at the October election on those points set forth by me in this address, and previously communicated by me to the Secretary of State.
It is obvious that the territorial government of Kansas must be maintained either by a superior physical force, or, as in all other States and Territories, by the majority of qualified voters at the election.
I never contemplated the use of the military force but in aid of the execution of the laws, to protect the citizens in the exercise of their legal rights, as a posse comitatus to arrest offenders, where the civil authority might prove incompetent without such aid, and where the law authorized military power to suppress insurrection or rebellion. Physical force and the bayonet constitute the real power in nearly all monarchies and despotic governments, but here it is the will of the majority of the people, qualified to vote under the Constitution or under the laws, which is to govern; and the sooner all such questions are decided by a full and fair vote of the qualified electors at the polls, the better; and then, and not till then, shall we have peace and repose in Kansas. Unless force is to be substituted for the elective franchise, unless despotic and monarchical principles are making here insensible progress, sooner or later the question must thus be decided; and the sooner the better, not only for the true interests of this Territory, but for the security of the Union and the cause of self-government here and throughout the world.
The eyes of our country and the world are now directed with intense interest to the coming election in Kansas in October next. Whether the people of this Territory are, indeed, capable of selfgovernment; whether the scenes which have disgraced Kansas and our country for the last three years are to be renewed indefinitely; whether violence, injustice, or insurrection, on one or both sides for the moment, and for the moment only, are to decide the question, or whether our political differences are to be settled here, as in all other States and Territories, (under the provisions of our organic law,) by the full, free, and fair exercise of the elective franchise, are the momentous questions to which you must all now soon answer. The test oath is expressly repealed as a qualification for voters by an act of the territorial legislature of the 17th of February, 1857.
The people of Kansas have now, therefore, an opportunity, in conformity with the Constitution of the United States, the organic act of Congress, and the laws of this Territory, to decide, by the elective franchise, the choice of their delegate to Congress, their territorial legislature, and all their county officers.
The troops at my disposal, which are fully competent to the task, will, at the request of citizens of both parties, be stationed at the points where violence has been threatened or anticipated; not for the purpose of overawing the people, or of interfering in any way with the elections, or of influencing them in any respect whatever, but, by their mere presence, guarding the polls against any attempt at insurrection or violence, from the mere knowledge of the fact that it can
and will be suppressed; but, if necessary, also to protect and secure, by lawful means, all the just rights of the citizen in exercising the elective franchise under the decision of the proper authorities, and to act as a posse comitatus for the arrest of offenders. I should have greatly preferred, as expressed in my letter of acceptance of the office of governor of this Territory, never to have been required to call out the troops, even as a precautionary measure. As it is, not a drop of blood has been shed, and insurrection has been suppressed, until it recently reappeared, in a compulsory tax law, by the insurgent government at Lawrence, and in conflagration of dwellings and expulsion of peaceable citizens in its vicinage, after it was known the troops were ordered to Utah, and when it was falsely supposed that they would not be replaced by others. Indeed, if the revolutionary government of Lawrence had not been encountered by the immediate movement of troops there, it is now clear that similar insurrectionary local governments, based on my presumed acquiescence, would have been organized throughout Kansas, in open defiance of the laws of Congress and of this Territory, and rendered a peaceful settlement impossible. It will be remembered that, in open defiance of the laws of Congress and of this Territory, and after the refusal of the socalled Topeka State legislature to grant them a charter, they, nevertheless, organized a city government, clothed with all the usual powers-legislative, executive, and judicial. It will be recollected, also, that after my proclamation of the 15th of July last, and the simultaneous movement of the troops there, as a precautionary measure, to maintain the authority of the government and arrest the spread of this insurrection throughout the Territory, they then professed, through their organs, that what they had called a government, and to which they had given all the powers of a government, was a mere voluntary association for the removal of nuisances from the streets, &c. But now, when it was erroneously believed by them that the troops would all be removed to Utah and not replaced by others, they have thrown off the mask, and carried out their original insurrectionary purpose, by passing a compulsory tax law, both a poll and property tax, requiring its assessment and collection by the seizure and sale of property, and exacting, by their charter, from executive officers, who are to carry out these acts, an oath to perform all these duties, the violation of which oath, if these duties are not performed, would be perjury. At the same time, they seemed to have believed that this precautionary movement of mine, and proclamation, were disapproved by the President of the United States; whereas, they were both most cordially sustained by him, in the despatch to me from the Secretary of State, of the 25th of July last, as also in the published letter of President Buchanan to Professor Silliman and others, of the 15th of August last. An overwhelming majority of the press and people of the United States have condemned this insurgent movement; the example has not been adopted by any other locality in Kansas, contrary to the expectation of its authors; it failed to receive any sanction from the general territorial convention of their own party, of the 26th ult., and now stands without a precedent in our