Spragins v. Houghton

• Decision Date: 31 December 1840
• Citation: 1840 WL 1826,2 Scam. 377,3 Ill. 377
• Parties: THOMAS SPRAGINSv.HORACE H. HOUGHTON.
• Court: Illinois Supreme Court

2 Scam. 377

3 Ill. 377

1840 WL 1826 (Ill.)

THOMAS SPRAGINS

v.HORACE H. HOUGHTON.

Supreme Court of Illinois.

December Term, 1840.

THIS cause was argued at the December term, 1839, and on suggestion at the last June term, that the cause was fictitious, the court required proof of its being a real cause, and continued it for that purpose. (3 Ill. 211.)

At this term of the court, in compliance with the order entered at the last term, the parties produced the following evidence, to wit:

The affidavit of Charles S. Hempstead, stating that he is personally acquainted with Horace H. Houghton, Thomas Spragins, and Jeremiah Kyle; that he has been acquainted with Houghton and Spragins more than four years, and with Kyle about two years; that they are all residents of the town of Galena, in Jo Daviess county, and that he knows of no other individuals of the same names.

The affidavit of Horace H. Houghton, stating that at the May term, 1839, of the circuit court of Jo Daviess county, he instituted an action of debt, under the statute, against Thomas Spragins, who was one of the judges of an election for governor, &c., holden in the precinct of Galena, in said county, on the sixth day of August, 1838, for permitting Jeremiah Kyle, a native of Ireland, and not a naturalized citizen of the United States, to vote at said election; and that the case was an agreed case, and was submitted to the circuit court of said county, upon the statement of facts as set forth in the transcript from the records of said court; and that the said case is a real one, and not a fictitious one, and that the facts set forth in the transcript did really transpire.

Thomas Spragins' affidavit, stating that, at the May term, 1839, of the Jo Daviess circuit court, an action of debt, on the statute, was brought against him, as one of the judges of an election held in the precinct of Galena, in said county, on the sixth day of August, 1838, by Horace H. Houghton, for permitting Jeremiah Kyle, a native of Ireland and not a naturalized citizen, to vote at said election. That the case was an agreed case, and was submitted to the circuit court of said county upon the statement of facts, as set forth in the transcript from the records of said court. That the said case is a real one, and not a fictitious one, and that the facts stated and set forth in the transcript did actually transpire; that the said Jeremiah Kyle, whose deposition is annexed to the transcript, is the identical Jeremiah Kyle mentioned in the transcript, and that he knew no other person of the name. That, acting as judge of said election, he protested against receiving aliens' votes, believing that they were not qualified to vote, that the constitution and laws of this state required that the person offering to vote should not only have resided six months in the state, but that he should be a citizen of the United States; and that he admitted the said Kyle to vote at the time aforesaid, believing, at the time, that he was not a qualified voter, because he felt bound to yield to the opinion of a majority of the judges of the election, they having decided that unnaturalized persons should be allowed to vote; yet, that the admission of the said Kyle to vote, was contrary to his belief of the law and right.

The affidavit of Jeremiah Kyle, stating that at an election held in the precinct of Galena, in the county of Jo Daviess, on the sixth day of August, 1838, he voted for all state and county officers voted for at that time, and for a representative to congress; that Thomas Spragins was one of the judges of the election, at the window, where he voted; that he had resided in the state of Illinois more than six months immediately preceding the said election; that he is a native of Ireland, and had never been naturalized according to the laws of the United States; and that he has never known any other person of the same name in the state of Illinois.

Also a transcript of the record in this case remaining in the Jo Daviess circuit court, certified under the seal of the court.

The cause was heard in the court below before the Hon. Dan. Stone.

STEPHEN A. DOUGLASS and MURRAY MCCONNEL, for the appellant, relied upon the following points and authorities: First, 1st. It was the policy of the government by the ordinance of 1787, and by the several acts of congress for the government of the territory northwest of the river Ohio, to encourage emigration, by conferring upon alien inhabitants the right of suffrage, and other privileges. Ordinance of 13th July, 1787, in R. L. 53, 54, (Gale's Stat. 41) permitting alien inhabitants to vote, if freeholders.

2d. Aliens may be freeholders at comman law. 1 Bac. Abr. 173, 174; 1 Blac. Com. 286; N. Y. Dig. 47. The ordinance, also, in effect, gives them the right to hold lands.

3d. The laws of congress confer upon alien inhabitants, in said territory, the right to vote. See 2 Story's L. U. S. 869, permitting Ohio to form a constitution; 3 Story's L. U. S. 1566, § 4, permitting Indiana to form a constitution. See, also, 2 Story's L. U. S. 1250, § 1, abolishing property qualifications; 3 Story's L. U. S. 1674, § 3, authorizing Illinois to form a state constitution. These laws permitted alien inhabitants to vote for, and to be members of, the conventions that formed the constitutions of Ohio, Indiana, and Illinois. 12 Cong. Debates, Part 4, 4227-4230.

4th. In the ordinance of 1787, there are certain articles of compact between the original states and the people and states N. W. of the river Ohio, which articles are declared to be the basis of any constitution and state governments that should ever be formed in said territory, and to be forever unalterable except by common consent. R. L. 55, (Gale's Stat. 42). By the second article of said compact, it is provided, that the inhabitants of the said territory shall always be entitled to the benefits of proportionate representation of the people in the legislature. By reference to other portions of the ordinance, it will be seen, that the word inhabitant included alien as well as citizen inhabitants. R. L. 53, 54, 56, 57, (Gale's Stat. 40).

5th. The constitution of this state was intended to be in conformity with the principles of the ordinance and compact of 1787.

3 Story's L. U. S. 1675, § 4, authorizing Illinois to form a constitution, provides that “the constitution be not repugnant to the ordinance.”

Resolution of congress, admitting Illinois into the Union, says, “the constitution is in conformity to the principles of the compact.” R. L. 33, 34. The preamble to the constitution, says it is consistent with the ordinance of 1787, and the act of congress of the 18th April, 1818. R. L. 34.

Secondly. 1st. The constitution, which was thus formed in part by the votes of alien inhabitants, did secure to them the right of suffrage. This is shown by the facts, that whenever the constitution speaks of the qualifications of an officer, it uses the words “citizen of the United States.” Art. 2, § 3. A representative shall be a “citizen of the United States.”

Art. 2, § 6. A senator shall be “a citizen of the United States.”

Art. 3, § 3. The governor shall have been a “citizen of the United States” thirty years.

Art. 3, § 13. The lieutenant governor shall possess the same qualifications.

Schedule, § 14. The lieutenant governor shall be a “citizen of the United States.” These are the only instances, in which the words “citizen of the United States” are used in the constitution.

2d. Whenever the constitution speaks of a voter, or elector, it uses the word ““inhabitant,” and not citizen of the United States.

Art. 2, § 27. “All white male inhabitants shall vote,” &c.

Schedule, § 12. “All white male inhabitants shall vote at the first election,” &c.

3d. The constitution uses the word “inhabitant” when speaking of the people en masse, including black and white, citizens and aliens. Art. 2, § 5-31. Art. 8, § 8. Thus it will be seen, that the words “citizen of the United States,” and “inhabitants,” are not used as synonomous terms.

Thirdly. 1st. The word “inhabitant,” as used in the 27th section of the 2d article of the constitution, does not mean citizen of the United States. The word “inhabitant” has a certain and definite meaning,--one who dwells, lives, resides, or has his home in a place. Webster's Dictionary, Walker's Dictionary.

The word “citizen” has various meanings, but a “citizen of the United States,” is a person native born, or naturalized according to the acts of congress. 2d. As to the difference between “citizen” and “inhabitant,” see Contested Elections in Congress, page 415, 416; 1 Vattel, ch. 19, § 213; 1 Kent Com. 344; Const. Mich., Art. 2, § 1; 12 Cong. Deb., Part 4, 4227-4289; Territorial Laws of Michigan, in same book, Act of the 26th January, 1835; 12 Cong. Deb. Part 4, 4245, 4246, 4252, 4253; 12 Cong. Deb., Part 1, 1015, 1016, 1036, 1037, 1039-1044, 1047;--Mr. Clay's amendment, and the vote before it. Act of congress of the 15th June, 1836, § 2, accepting, ratifying, and confirming the constitution of Michigan, which admitted aliens to vote. 4 Story's L. U. S. 2442. All of these authorities show, that the word “inhabitant” includes aliens as well as citizens.

Fourthly. 1st. Under the constitution of the United States, each state has the right to prescribe the qualifications of its own voters. Const. U. S., Art. 1, § 2; Federalist, No. 52, page 226; 2 Story's Com. Const. 56 to 66; 12 Cong. Deb., Part 1, 1036; Part 4, 4266.

2d. Each state has exercised this power from the organization of the government. Book of Constitutions; Vermont, page 90, aliens vote, and hold office.

Constitution of New York; negroes vote. North Carolina permits free negroes and aliens to vote. 2 Kent Com. 61; 2 Story Com. Const. 58 to 65

3d. The naturalization laws have no reference to the elective franchise, neither conferring nor restraining it in this country or in England. 1 Blac. Com. titles “ Alien,” “ Denizen,” &c.; 2...