shall be prescribed in each State by the legislature thereof." And they held that the legislature under this provision had full power to authorize voting out of the State for representatives of Congress. They said, this power is given by the Constitution of the United States to the legislature of each State and not to a constitutional convention. The place of holding the election cannot be prescribed as one of the qualifications of the electors. "Control over the place of voting is lodged in the legislature by the unmistakable language of the Constitution, and cannot, however disguised by name or circumlocution of words, be transferred. The power to prescribe the place, whether called a qualification, limitation, or condition, is still vested in what the Constitution calls the Legislature." There was an elaborate minority report holding that the legislative act was void in every respect, and that all votes cast under it should be rejected; and this report went further, and held that neither the Legislature nor Congress had power to prescribe places of voting outside of the State for a portion of its citizens. The report said, if Congress can do this, or the Legislature can do this, acting under the power of the Federal Constitution, why cannot Congress or the Legislature "prescribe places of voting outside of the State for all citizens thereof? Why not prescribe that all the citizens of Michigan shall vote in Chicago for their members of Congress, and all the voters of Illinois go to St. Louis to vote for theirs?"1 The majority report was adopted by the House. 1 Cases of Contested Election in the House of Representatives from 1865 to 1871. House Mis. Doc., 41st Congress, 2nd Session, No. 152, page 46. Bartlett, Contested Election Cases, Vol. 2, p. 46. CHAPTER XIII KENTUCKY ECTION 8, Article 2 of the Constitution of Ken SEC tucky, in force at the time of the war, provided that the voter was "to vote in said precinct, and not elsewhere." March 11, 1863, the Legislature, by a two-thirds vote over the veto of Governor Magoffin, passed an act entitled, "Citizens, expatriation, and aliens." It provided that "Any citizen of this State who shall enter into the service of the so-called Confederate States, in either a civil or military capacity, or, having heretofore entered into such service of either the Confederate States or provisional government, shall continue in such service after this act takes effect, or shall take up and continue in arms against the military forces of the United States or the State of Kentucky, or shall give voluntary aid and assistance to those in arms against said forces, shall be deemed to have expatriated himself, and shall no longer be a citizen of Kentucky, nor shall he again be a citizen, except by permission of the Legislature by a general or special statute." On February 16, 1864, the judiciary committee of the Senate reported a bill "regulating the manner of soldiers' voting for electors of President and Vicepresident of the United States within and without the State," and it and it was ordered to ordered to be printed. On February 19, the bill was passed in a new draft by a vote of 29 to 1, and sent to the House where it was passed on February 20.1 This act took effect on 1 Senate Journal, 1864, pp. 396, 433-436; House Journal, 1864, p. 677. February 22, 1864, and was confined to voting for presidential electors "at the next election and not afterwards." It provided that all qualified voters in the actual military service of the State or the United States, either within or without the State, on the day of the next presidential election should have the right to vote for electors at the several posts, camps and places where they were in the field. Elections were to be held at such places by judges, who were to be the three ranking officers in the regiment, and the soldiers were to vote in regiments, if possible, and if not, in companies if practicable. There was no provision for individual voting or for voting by proxy. The judges were to appoint a qualified soldier voter to act as clerk of the election. Both the judges and the clerk were to subscribe an oath to conduct the election according to law. There were provisions for challenging of voters, and a special provision that order was to be maintained, and that each soldier should be permitted to go to the polls and vote without intimidation or restraint for the man of his choice. Poll books were to be kept by the clerk, and a statement of the vote was to be signed and sent by the judges to the Governor and to the Attorney General. The judges were also to certify that the election "was free and without any illegal constraint or force.' The Secretary of State was charged with the duty of providing proper blanks; and the act provided that the votes when received were to be counted as a portion of the votes of the State, "precisely the same as those received from the Board of Examiners of poll books of a county in the State," and said votes were to be in all respects as legal and valid as those for the same purpose cast in any precinct within the State.1 1 Acts of Kentucky, 1864, p. 122. The fact that soldiers voted as they pleased, without any undue influence of the administration, is strikingly shown by the vote in the field in Kentucky under this bill. There were 2,823 votes for McClellan, and only 1,194 for Lincoln electors.1 It is worthy of notice that the Confederate soldiers from Kentucky exercised the right of voting in the field outside of the State of Kentucky, without any apparent authority therefor whatever. The first election for members of the Confederate Congress was in the counties within the lines of the Confederate army in Kentucky, and the twelve gentlemen thus elected took their seats in the Congress of the Confederate States at Richmond, and acted with that body until their successors were elected by the Kentucky troops in the Confederate armies, none of such troops being at the time within the boundaries of Kentucky. A convention of persons claiming to be delegates from all the counties not under the control of the Federal troops assembled at Russellville, December 18, 1861, and adopted a constitution, and elected an executive council of ten persons, in whom their constitution provisionally vested all the legislative and executive authority of the State. This council negotiated an alliance with the Confederate States for the admission of the State of Kentucky into the Confederate States of America as a member thereof on an equal footing with the other States of the Confederacy.2 In 1865 the Soldiers' Voting Act of 1864 was repealed although it was not in effect, having been limited to the single election of 1864.3 1 Greeley's Am. Conflict, Vol. 2, p. 672. 2 Outline History of Kentucky, Collins, Vol. 1, pp. 345–6. CHAPTER XIV KANSAS 'HE Constitution of Kansas at the beginning of ΤΗ the Civil War contained a provision that “no soldier, seaman or marine in the army or navy of the United States or of their allies shall be deemed to have acquired a residence in this State in consequence of being stationed within the same, nor shall any such soldier, seaman or marine have the right to vote." When volunteers were called into the service in 1861, it was claimed that they were soldiers within the meaning of this provision of the Constitution. And it was claimed that they were not soldiers, but that the prohibition applied only to soldiers constituting the regular national military establishment. Some of the ablest lawyers of the State were of the opinion, which was shared by the Governor, that the prohibition of the Constitution applied to volunteer soldiers, and included those who volunteered from Kansas. The Governor in his message to the Legislature in 1863, therefore, recommended that the Constitution be so amended that it would not prohibit volunteer soldiers from Kansas from voting. It was a forced construction of the provision to make it apply to volunteer soldiers from Kansas. It probably was not the intention of the framers of the Constitution that if a man volunteered he should thereby lose his vote in the State, which was the result of such construction. But this construction was applied in 1863 by the Senate in a test election It appeared that twenty-six volunteer soldiers case. |