The Burlington weekly hawk-eye. [volume] (Burlington [Iowa]) 1860-1876, 1863-01-03

mas jurisdiction only over votes cast IN c0ntra-
vention of Law, and not over such ~ agree with
law which is claimed to be unconstitutional
| The Legislature did not mean, in allowing
this Court to pass on ''illegal votes" to allow
| it to question their Copstitutionality. 1t must
respect, by the limit of its power, such votes as
are agreeable to law.
BY another proceeding, in tribunal Of lar
ger powers and learning, the consttutionality
can be tested.
! The Statement, in substance, claims that the
contestant would be elected, but that large
number of votes, cast without the State accord
ing to an unconstitutional act, were counted tor
the contestant.
The motion comedies the act and votes there
under, and denies that the. law is unconstitu-
tionsl.
Now if all the votes cast for Garrett we're OBJ
jectional only because they we're cast with
out the State, according to that law, It follows
that if you find that law constitutional, you will
dismiss the contestants Statement. As he can
not make his ground of contest better than be
has, and will not be allowed to make it other,
| You will declare the incumbent elected, as by
Sec 500, and the effect of dismissing contes-
tents Statement required.
We do not waver in our doubt of your power
| to pass on the constitutionality of the extra
State vote, but not to decline the gauntlet
thrown down to US, we join battle with them
on that question.
Can the Legislature allow electors who, sol.
diers of the Union, are absent in parts without
the State, to cast vote such as they could have
cast had they been at home on election day?
A remark by way of introduction. The cleo
tive franchise is not generally the creature of
super legislative provisions In Europe gener>
ally, and often in America it is the sole creature
Of mere legislation. a. a-.. s...... Lee
In the nature of things it should be So in Or
der to secure that variability which the chang
ing interests of the State may require. Perhaps
it would be best for Constitution to provide
that certain persons should be electors, leaving
the Legislature fee to enlarge the class as the
want arose. In my opinion this is the prevail
ing doctrine in this country.
Looking to our State history, we see that from
the time we became Wisconsin, till We became
State-ten years-the Legislature was omnip,
otent in its power to create voters, save that the
voter must be citizen of the United States
The Ordinance put no other restriction on the
Legislature. During all that time the Legsla.
tnre might, but did not, allow almost any one to
vote and to vote any where. The voting herein
complained of could have been constitutionally
provided by law.
Does the Constitution interdict? do not
concede that the Constitution, in the affirmative
clause is at all restrictive of legislative power
regarding votes. But considering such Ian
guage as restrictive as claimed, does it decide
the question against US? ..-...
The elector must be a resident. Well, sol.
der don't lose his residence. Story's Coufict
of laws, Secs Al, AZ, 43 and A. LIST Bonvier p.
80. Philimore on Domci p. II. If the soldier
had been here, his absence would not have pre-
vented his voting
| But they say he must personally vote in the
county where he claims his vote to count. The
Constitution does not so require. o., The
Constitution allows an elector to vote at al cleo
| tons which may be authorized by law. The
condition as to residence, is that of so many days
in the county in which he claims his Uote The
words used are not claims to vote, but claims his
vote-equivalent to, claims his vote to count
claims his elective weight. Some foreign States
by law, allow voter to deposit his ballot else
where, than where it counts, and some of our
sister States expressly, by Constitution, provide
for such voting. Georgia and Texas do.
The law we are considering only provides an
Agency for taking ballot box to about one.
third of all our legal voters, whose duties to the
State and Union will not allow them to come
here to it.
Contestant says fraud will be used. Answer,
that will obtain in all elections, and would be an
| argument against ALL
| But he says, when committed within the
State, 1t can be better guarded against by popu
lar scrutiny. ....
Answer-If the soldiers are of nearly equal
sides the same popular scrutiny will obtain If
not, the same absence of scrutiny only will OBJ
tain, as does in township elections at home,
which are of the same political unanimty.
| But, he adds, we purge by punishment
the crimes done within the State-illegal vote,
&c.
| Answer-All these'sanctions are bound about
the soldier vote.
But, he adds, for violation of statute without
| the State there is immunity from punishment.
| Answer-Every State can make an act done
by her subjects punishable wherever done. See
Phil. Int. Law, p. $50; Russ & Ryan, p. 1874 4
294; 7 Carr & P, p. 464; Carr & P, D. 1874;
Wheaton Int Law, p. 174.
But we can't catch him-answer-that objec.
tons obtains in all cases of crime.
That bad men may wickedly assert privileges
under good law which secures to good men
precious fundamental rights is no sound argu-
ment against the law, even if they do 60 unpun.
ished.
To deprive the soldier of his vote in State
where wars are the result of popular will and
not the dictates of a despot, would often defeat
the end of the war. ~
Indeed the more precious the interest at
oVonoS ohN 'ho tAAoAo POPuaoA SoC VOL uho VIC
more gigantic the struggle, the more would its
grandeur necessitate its own defeat. For its
volunteer friends the soldiers absent, its enemies
would paralyze the arm of war by the force of
the ballot
Where the bayonet don't think and has no
country, and only reflects the vii! of despot,
it is well to bid it away from the ballot-box.-
But when it is borne by the people, and by the
most patriotic of the people, then to impose on
it silence is to give victory to the timid, and
perchance to the traitor. bic ~ t-..
But all these objections weigh not, IS they
are not based on the Constitution, and should
be addressed to the Legislature and not to the
Court.
The law allows no soldier to vote who could
not have done 80 we're he in the county of his
domici, and only for the officers which be could
then have there voted for And it has not been
shown that in the agency used for bringing his
ballots here, there is any thing unconstitutional.
This view has proceeded upon the ground that
the affirmative language of the Constitution,