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The Great Question for the People




ESSAYS



ON



THE ELECTIVE FRANCHISE ;



OR,



WHO HAS THE RIGHT TO VOTE ?



J H N -H A N C C K ,



COUNSELLOR AT LAW.



P II I L A D E L P H I A :

M E 11 R I II E W & SO N, PRINTER S,

No. 243 Arch Street, below Third St.

1865.




The Great Question for the People



ESSAYS



ON



THE ELECTIVE FRANCHISE;

OR,

WHO HAS THE RIGHT TO VOTE ?

BY

JOHN HANCOCK,



COUNSELLOR AT LAW.



" The right which is exercised by the citizens at large, in voting at elections, is one of the most
important rights ; and in a Republic ought to stand foremost in the estimation of the law. It is a
right by which we exist as a free people." ALEXANDER HAMILTON.



PHILADELPHIA:

MERRIHEW & SON, PRINTERS;

No. 24f Arch Street, below Third.

1865.



Entered according to Act ot Congress in the year 1865, by

JOHN HAXCOCK,
in the District Court of the Eastern District of Pennsylvania.



TK



INTRODUCTION.



THE subject of these few pages is of itself of the highest importance.
To no people on earth can it be destitute of interest ; and to ourselves
at this time it may well take precedence of all others.

The stiff phrase " elective franchise" means the right of choice, and a
moment's reflection will show us that those who choose the rulers are
the virtual governors ; and thus the question, " Who shall vote ?" re-
solves itself into the question, " Who shall rule ?" If ever a grave
theme came before an earnest people, this is one. We shall need all the
discoveries of former time, and all the wisdom of our own, to do it jus-
tice ; and even with all these, we may deferentially exclaim, " Who is
sufficient for this thing !"

But while thus impressed with our great responsibility, let us not forget
that cowardice is no element of safety. We have not officiously gone
out of the .beaten track of duty to meddle with this matter. It lies full
before us, and will allow of no evasion. The stern necessity of present
consideration lies upon us, the grand panel of the nation, the present
voters of our great republic ; and the sacrificed dead and the helpless
living unite to remind us in loving earnestness, " for this end were ye
born 1"

The author, in his search for precedents, has gleaned from the whole
field of the past. Greece and Borne, and all the intervening govern-
ments send their tributes of experience. Our European fathers are
brought to the witness-stand, and after them appear our own wise men
from PATRICK HENRY down to EDWARD EVERETT. The amount of valu-



245



able testimony here condensed is very great, and could not be attained
otherwise without much time and expense. We here have the voice of
the wise and good speaking to us in grand harmony, and just at the time
when the counsel is needed.

We are called upon to fix, or at least to initiate, a new order of things
for half a continent! We have uprooted the Thistle and Jamestown
weed from the Southern soil ; how and with what shall we plant it anew ?
We find society there actually made up of extremes of white men and
black men alike unfit for responsibility and trust ! What fearful mate-
rials of which to build the great temple of peace and safety ! Of the
former dynasty we have as much to deplore as to remember ; not a
charred beam from the old building will serve us for the new ! The
former structure as a whole was a warning, and its details each a sepa-
rate disgrace. The mangled ruins around which EZRA gathered the
remnant of Israel, were a good assortment of stone and timber com-
pared with those among which we now walk in the South at once in
sorrow and anger.

Shall we then call the former architects to build for us? They set
their own house upon shifting sands and made it lean so as to fall upon
ours ! They had laws to produce and protect crime through a few gene-
rations, and to ensure ruin of the whole State at the last. What they
have suffered and what we have barely escaped should make us careful
for ever.

Whatever else is doubtful, this is clear, our Rebel leaders must never
return to power. However we may pass over their forfeited lives, per-
petual banishment from citizenship is theirs. Better leave the field in
continual fallow, than gather again the tares and cheat as bread for the
nation. If the loyal black may not yet vote, the rebel white must not,v-
" Be just and fear not," is the true watchword of the day.



CHAPTER I.

Grecian and Koman customs of Representation and mode of Voting
Cause of their downfall English Nation during the Feudal Age
Magna Charter Frequency of elections under William III. and
Charles II Elections in Ireland Representation in the British Ameri-
can Colonies.

AMONG all the absorbing questions of the day now dis-
cussed, relative to the future policy and well-being of the Ameri-
can Republic, there is no one that is paramount to that of the
rights and privileges which belong to the people in their individ-
ual political capacities ; particularly since the recent abortive
attempt to overthrow the Government of. the Nation has had the
effect to change, very materially, the character and political ca-
pacities and rights of a large class of the community who, here-
tofore, have been debarred, except incidentally, of those rights
which have been confined, as a general rule, to the privileged
classes.

As precedents, however, as well as interesting matters of his-
tory, before entering directly upon the subject in question, we
shall cite those of ancient Greece and of Rome, as well as that
of the more modern Kingdom of Great Britain from which our
ancestors undoubtedly borrowed much of the system upon which
our own is based, as examples of the dangers and disorders
which have arisen from the earliest periods down even to the
present hour, from the abuse of the political powers entrusted to
the general populace, as well as the too great abridgment of their
undoubted rights and privileges.

The ancient Greeks and Romans had but very imperfect notions
of the value of representation ; the number and power of their
popular assemblies were so great and so liable to disorder, as to
render it a provident jneasure with them to be guarded in diffus-
ing the privileges of free citizens. Not a tenth part of
the people of Athens were admitted to the privileges of voting



in the assemblies of the people, and, indeed, nine-tenths of the
inhabitants throughout all Greece were slaves.

During the most flourishing period of the Athenian Democra-
cy, every citizen of the age of eighteen had a right to hold of-
fice, and to give a vote at the assemblies of the people. The
most crowded assemblies rarely exceeded 8000, though Attica con-
tained 20,000 citizens. All were reckoned citizens whose parents
were such. To assume unlawfully the rights of a citizen was
punished by being sold into slavery. The assemblies of the peo-
ple were convened by magistrates, and the chairman or president
presided at them, and proposed the subject to be discussed, and
had the bills, which had been previously prepared and sanctioned
by the senate, (for the fundamental law allowed none others to
be considered,) recited, and gave permission to the orators to
speak, though the liberty of addressing the people on the subject
was open to all. The chairman also put the question to vote,
whether to adopt or reject the proposition. The assembly had
the right to vary or alter it. The people generally voted by
show of hands, and sometimes by ballot. They voted by tribes
(of which there were ten,) but a majority of the whole assembly,
collectively, decided.

It was owing to this system of assembling the people in masses,
and not by representation, to make laws ; and from a want of
well-defined and distinctive departments, that that celebrated Re-
public terminated its career in anarchy and despotism.

So, also, in ancient Rome, no tests of property or character
were required ; and as the people assembled within the walls of
that City in immense masses, not merely to vote, but to make
laws, it produced the utmost anarchy and corruption, and has
justly been regarded as precipitating the fall of that Common-
wealth. The Roman slaves were not represented, and Rome ex-
ercised the right of absolute sovereignty over the dominions of
its auxiliaries. The Roman citizens, who exclusively exercised
as voters the power of government, bore, therefore, a very small
proportion in numbers to the gross amount of inhabitants. The
Roman mode of passing laws, and voting, was under great checks,
during the best period of the Government. When a law was
proposed and discussed, the people proceeded to vote. The origi-



nal mode of voting was viva voce, but at a later period it was by
ballot, and applied equally to the election of magistrates, to public
trials, and to making and repealing laws. The people were made
to pass over a narrow plank into an enclosure, where certain of-
ficers delivered to every voter two tablets, one for and one against
the proposition, and each person threw into a chest which
of them he pleased, and they were pointed off, and the greatest
number of points either way determined the sense of the voice
of the whole people, who either passed or rejected the law.*

The English nation, during the Feudal Age, enjoyed the bless-
ings of popular representation, and the knights, citizens and bur-
gesses were intended to represent the farmers, merchants and
manufacturers, who composed the several orders and classes of
people of which the nation was composed. f But the mutations
of time and commerce, says Justice KENT, in depopulating an-
cient boroughs, and in establishing new cities, and great manufac-
turing establishments, without any direct parliamentary repre-
sentation, changed the structure of the House of Commons, and
rendered it, in theory at least, a very inadequate and imperfect
organ of the will of the nation. But, notwithstanding the great
imperfections, at this early period, of the constitution of the
English House of Commons, nevertheless, in all periods of Eng-
lish History, it felt strongly the vigor of the popular principle.

While on the Continent of Europe the degeneracy of the feu-
dal system, the influence of thej^apal hierarchy, the political
maxims of the imperial or civil law, and the force of standing
armies, extinguished the freedom of the Gothic Governments,
and abolished the representation of the people ; the English
House of Commons continued to be the asylum of European lib-
erty. And when we take into consideration the admirable plan
of their judicial polity, and those two distinguished guardians of
civil liberty, trial by jury, and the freedom of the press, it is no
longer a matter of astonishment that the nation, in full posses-
sion of these inestimable blessings, should enjoy greater security
of person and property than was ever enjoyed in Athens or

*Mitford's Greece, vol. i. p. 354, 357. Kent's Com., vol. i. part 2, p.
'232.

1 1 Blackstone's Commentaries, p. 174.



8

Sparta, Carthage or Rome, or in any of the commonwealths of
Italy during the period of the middle ages.

Agreeably to the English historians there existed no delibera-
tive legislative assembly in England prior to the reign of Henry
III., which was the era of the establishment of Magna Charta,
and the introduction of popular representation in England, and
of the establishment of the House of Commons, in the time of
Henry III. and Edward I. By its provisions no taxation was
to be imposed but by Parliament, which was to consist of the
higher clergy and nobility, and the tenants of the chief under
the crown.

Under the reform acts and down to the present period, the
names of electors are required to be registered and to possess
certain property qualifications.

The scheme of representation, as a substitute for a meeting of
the citizens in person, being but imperfectly known, it is in more
modern times that we are to expect examples more instructive
and analogous to our own particular case.

The history of this branch of the English Constitution, ante-
rior to the date of Magna Charta, is too obscure to yield instruc-
tion. The very existence of it has been made a question among
political antiquarians. The earliest records of subsequent date
prove that Parliaments were to sit only every year, not that they
were to be elected every year. And even these annual sessions
were left so much at the direction of the monarch that, under
various pretexts, very long aifd dangerous intermissions were of-
ten contrived by royal ambitions. To remedy this grievance, it
was provided by a statute, in the reign of Charles II., that the
intermission should not be protracted beyond a period of three
years. On the accession of William III., when a revolution
took place in the Government, it was declared to be among the
fundamental rights of the people that Parliaments ought to be
held frequently ; and under Charles II. it was expressly enacted
that a new Parliament shall be called within three years after the
determination of the former.* From these facts it appears that

* For an interesting history of this subject see Blackstone's Cora.,
vol. i. chap. ii. p. 145.



9

the greatest frequency of elections which has been deemed neces-
sary in that Kingdom, for binding the representatives to their
constituents, does not exceed a triennial return of them.

Elections in Ireland were formerly regulated entirely by the
discretion of the Crown, and were seldom repeated, except on
the accession of a new prince, or some other contingent event.
The Parliament which commenced with George II. was con-
tinued through his whole reign, a period of about thirty-five
years. The only chance for representation by the people con-
sisted in the right of the latter to supply occasional vacancies
by the election of a new member, which death or some other
event might render a new election necessary.

What effect may have been produced by these partial reforms,
the example of Ireland can throw but little light upon the sub-
ject ; and the conclusion may be drawn, that if the people of
that country have been able, under all these disadvantages, to
retain any liberty whatever, the advantage of biennial elections
would secure to them every degree of liberty, which might de-
pend on a due connexion between their representatives and
themselves.

In the British-American Colonies, the principle of represen-
tation was established in one branch of the Legislature, but the
periods of election varied from one to seven years.

The right of representation in Parliament, it will be recollect-
ed, was among the causes which led to the dissatisfaction of our
colonial ancestors to. the mother-government, and the final
separation from British rule.



CHAPTER II.

Equal Suffrage among the States an exceptional part of the Confedera-
tion Opinion of Hamilton Definition of Bight of Suffrage Difference
of Opinion between Hamilton and Madison Right of Suffrage under
the First Continental Congress Origin of the Three -Fifths Appor-
tionment.

HAVING thus briefly traced, from the earliest periods, the
origin and operation^ of the " Jlight of Suffrage," or "Elec-
tive Franchise," as it is also sometimes called, we are brought



10

down to that interesting cycle in political economy which is the
more immediate subject for our own investigation, viz. : the
American " Right of Suffrage."

" The right of equal suffrage among the States was an ex-
ceptionable part of the Confederation. Every idea of propor-
tion, and every rule of fair representation," said Mr. HAMIL-
TON, " conspire to condemn a principle which gave to the smaller
States an equal power with the larger. Although the States
may be of a majority, yet, at the same time, may not contain
one-half of the number of inhabitants of the minority. At that
period, the States of New Hampshire, Rhode Island, New Jer-
sey, Delaware, Georgia, South Carolina, and Maryland were a
majority of the whole number of States, but they did not con-
tain one-third of the people.

" Under such circumstances, if the States, in their sovereign
capacity, should control the electoral vote instead of the people,
only one-third of the people would be represented.

" That the larger States would acquiesce in the privation of
such an unequal importance of their political power, it would
neither be rational to expect nor just to require of them."*

The rule of suffrage adopted^by the First Continental Con-
gress was one of necessity, for the reason that it was impossible
to ascertain the relative importance of each Colony. The mem-
bers being only an assembly of committees of one from each
of the Colonies, called together to deliberate how each could aid
the other in obtaining redress of grievances from Parliament
and the Crown.

The character of the government under the Articles of Con-
federation was, that each State should have an equal voice with
every other. In order to nationalize the government, it was
necessary that this system should be changed, so that the rela-
tive population of the several States should be properly repre-
sented. This gave rise to much discussion and opposition from
the smaller States.

The question was, upon what basis this representation should
be placed, whether it should be confined to those on whom some
of the States had conferred the elective franchise ; or, whether
it should include white inhabitants only, or free inhabitants of
other races, excluding slaves ; or, whether it should embrace the

* Federalist, No. xxn. page 184.



11

whole population of each State. To have adopted this last
mode of representation in the National Legislature, it would
have consisted of one presenting great inequalities.

The elective franchise had been conferred in the different
States upon very different principles, according to their pecu-
liar policy and manners. These inequalities could scarcely have
been removed ; for the right of suffrage in some States was
more or less connected with their systems of descent and distri-
bution of property, and those systems could not readily be
changed, so as to adapt the condition of society to the new in-
terest of representation and influence in the general govern-
ment. This plan was therefore out of the question.

It was nearly impracticable to confine the basis of represen-
tation to the white inhabitants of the States, for the reason that
some of the States, where slavery had become extinct, contained
a large number of free blacks, who were regarded as citizens in
some of these States, which contributed to increase the aggregate
numbers and wealth of the State, and thus to raise its scale of
relative rank but not so in the Slave States. A State con-
taining several thousand of these inhabitants might well say,
that, although a distinct race, they formed too large a portion
of its free population to be omitted without inquiries into the
condition and importance of other classes of its free inhabitants.

It was equally impracticable to form a national government
in which the basis of representation should be confined to the
free inhabitants of the States. The five States of Maryland,
Virginia, North Carolina, South Carolina, and Georgia, includ-
ing their slaves, were found by the first census, taken three
years after the formation of the Constitution, to contain a frac-
tion less than one-half of the whole population of the Union.*
In three of those States the slaves were a little less than half,
and in two of them they were more than half as numerous as
the whites. There was no good reason, therefore, except the
theoretical one that a slave can have no actual voice in govern-
ment, and does not need to be represented why a class of
States containing nearly half of the whole population of the

* They contained 1,793,407 inhabitants ; the other eight States had
1,845,595, when the Federal census of 1790 was taken.



12

Confederacy should consent to exclude such large masses of
their population from the basis of representation, and thus give
to the free inhabitants of each of the other eight States a rela-
tively larger share of legislative power than would fall to the
free inhabitants of the States thus situated. It became neces-
sary, therefore, to regard the peculiar social condition of each of
the States, and to construct a system of representation that
would place the free inhabitants of each distinct State upon as
near a footing of political equality with the free inhabitants of
the other States as might, under such circumstances, be pra"cti-
cable. This could only be done by treating the slaves as an
integral part of the population of the States in which they were
found, and by assuming the population of the States as the true
basis of their relative representation.

It was upon this idea of treating the slaves as inhabitants,
and not as chattels, or property, that the original decision was
made in the committee of the whole, by which it was at first de-
termined to include them. Having decided that there ought to
be an equitable ratio of representation, the committee went on
to declare that the basis of representation ought to include the
whole number of white and other free citizens and inhabitants,
of every age, sex, arid condition, including those bound to servi-
tude for a term of years ; and they then added to the popula-
tion thus described, three-fifths of all other persons not compre-
hended in that description, excepting Indians not paying taxes.
The proportion of three-fifths was borrowed from a rule which
had obtained the sanction of nine States in Congress in the year
1783, w r hen it was proposed to change the basis of contribution
by the States to the expenses of the Union from property to
population. At that time, the slave-holding States had consented

that three-fifths of their slaves should be counted in the census

i

which was to fix the amount of their contribution ; and they asked
that, in the apportionment of representatives, these persons might
still be regarded as inhabitants of the State in the same ratio.*

" The definition of the right of suffrage, is very justly regarded
as a fundamental article of republican government. It was in-



*Curtis's Hist. Constitution, vol. ii. pp. 35 to 49.



13

cumbent on the Convention* therefore, to define and establish this *
right in the Constitution. To have left it open for the occasional
regulation of the Congress, or to have submitted it to the legisla-
tive discretion of the States, would have been equally improper.
For the reason that it would have left that branch of the federal
government too dependent on the State governments, which
ought to be dependent on the people. The provision made must
be satisfactory to ever y State as well as safe to the United States ;
because, being fixed by the State constitutions, it is not alterable
by the State governments, and it is not to be feared that the
people of the States will alter their Constitutions, so as to abridge
the rights secured to them by the Federal Constitution.*"

"A share in the sovereignty of the State, which is exercised by
the citizens at large, in voting at elections," wrote Mr. HAMIL-
TON, "is one of the most important rights of the subject; and in a
Republic ought to stand foremost in the estimation of the law.
It is a rightly which we exist as a free people.^ The qualifica-
tions both of the electors and the elected ought to be fundamental
in a republican form of government, not liable to be varied or
added to by the Legislature, and they should forever remain
where the Constitution left them."J

The theoretical opinions of Mr. HAMILXTON upon this subject
were directly in conflict with those of Mr. MADISON, whose birth
and education was in a 'planting State which limited the suffrage
to persons having an interest in real estate. Mr. MADISON held
that "the free-holders of the country would be the safest de-
positories of American liberty." Mr. HAMILTON, on the con-
trary, who entertained more enlarged views, sought to organize a
system by which all the great powers should be derived from the
body of the citizens : "the only theory," said he, "consistent
with the natural and constitutional rights of a free people.''

*Federalist, No. LII. pp. 403, 404.
f Hamilton's Works, ii. p. 315.
JHist. Eep. iii. 207.



14



CHAPTER III.

Elective Franchise in the General and the State Governments Fre-
quency of Elections Opinion of Hamilton Extent of power and ex-
tent of Territory considered Madison on stability of Government


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Online LibraryJohn HancockThe great question for the people! Essays on the elective franchise; or, Who has the right to vote? → online text (page 1 of 4)