existed until the new one was ratified, nobody but freeholders were qualified to vote, and they alone had elected that Convention, and it was claimed that they alone could vote upon the ratification of a new Constitution. But the Convention in submitting the new Constitution to the people allowed large classes to vote, such as owners of leasehold estates, householders who paid a tax, and many others who had never before exercised the right of suffrage. They did vote, and by their votes the Constitution was carried. The issue was plainly made in the Virginia Convention. Mr. Randolph offered a resolution that the "amended Constitution adopted by this Convention be submitted on the respective election days in the month of April next to the persons qualified to vote under the existing Constitution for members of the General Assembly." The yeas and nays were taken upon this resolution, and it was defeated by a vote of more than two to one. Among those who voted with the majority were ex-President Madison, Chief Justice Marshall, and others of scarcely inferior reputation.1

The result of the election was that 30,174 votes were cast for the Constitution, and 29,799 votes against it, making a majority of 375 for the Constitution. But in these votes were 2633 votes cast by soldiers in the field out of the State for the Constitution, and 263 cast by soldiers in the field against the Constitution, so that if all these soldiers' votes were excluded, the vote would stand 27,541 for the Constitution, 29,536 against it. The question of the validity of the soldiers' vote, therefore, became important and crucial. Lincoln realized the impor

1 Debates in the Constitutional Convention of Maryland, 1864, Appendix, pp. 1909, 1914.

tance of the soldiers' vote in Maryland and watched it with the keen eye of an old campaigner. November 10, 1864, he telegraphed to H. W. Hoffman of Baltimore that "The Maryland soldiers in the Army of the Potomac cast a total vote of 1,428, out of which we get 1,160 majority. This is directly from Gen. Meade and Gen. Grant." The opponents of the Constitution, on October 24, applied to the Superior Court to issue a mandamus to the Governor "commanding him to exclude all votes cast at any place outside of the State of Maryland from the count upon the question of the adoption of the Constitution." This petition was dismissed by the Court. An appeal was taken to the Court of Appeals, where it was also dismissed, and from the order of dismissal an appeal was also taken. Pending these proceedings a petition was presented to the Circuit Court in behalf of E. F. Chambers and others (E. F. Chambers was a leading member of the Convention who had persistently voted against the main provisions of the Constitution), asking for an injunction to restrain the Governor from counting the votes cast on the question of the adoption of the Constitution outside of the State of Maryland, and from issuing his proclamation declaring the Constitution to be adopted. This petition was dismissed and an appeal taken to the Court of Appeals. The same petition in behalf of the same complainants was then presented to the Circuit Court of another county, and dismissed in like manner. From this decision and the order dismissing the petition there was another appeal. These four appeals came up for hearing on the twenty-seventh of October in the Court of Appeals.

1 Complete Works of Abraham Lincoln, Vol. 10, p. 263.

The Governor declined to appear and the case was argued by eminent counsel, and on the twentyninth of October the Court unanimously affirmed the order of the Court below.

They said that the counting the votes and the proclaiming the Constitution were by the organic law of the State to be performed by the Governor, and that his duties could not be controlled by the Courts.1

While these proceedings were in progress, an application was made to the Governor for permission to canvass the returns made to him of the soldiers' votes, and show cause why certain of these should be rejected in the count. This privilege was given by the Governor, and the votes and returns were canvassed in detail, and arguments were made against accepting them by the same counsel who had argued in the Supreme Court.

October 28, 1864, the Governor gave an opinion in which he said two or three days had been devoted to the examination and the argument, and that many claims had been made which he could not consider, being bound by the terms of the Constitution. One claim was that twenty-three votes should be rejected because they were not written or printed on white paper, as required by the act calling the Convention. This seemed "rather a tenuous exception," the Governor said; "the paper on which these votes were written was what is called 'blue laid,' quite as common as what is called 'white laid,' and I can scarcely think it comes within the objection. But if it does, the law puts upon the Judge the duty of rejecting them, and I have no greater power to reject

1 Constitutional Convention, Appendix, 1864, p. 119, et seq.

them than I have to reject any other illegal ballot which they had received."

There were sundry objections made which the Governor sustained and deducted the votes. In conclusion he said: "The sum of the votes so deducted for reasons apparent on the face of the return, amounts to 285 votes for and five against the Constitution, and leaves the number of the count of the soldiers' vote 2,633 for and 263 against the Constitution; the aggregate of the home and soldiers' vote then being 30,174 for and 29,799 against the Constitution,' being a majority of 375 for the Constitution.

In concluding his opinion the Governor said: "I am gratified that these returns of the soldiers' vote have passed under the searching scrutiny of the able counsel who have inspected them. I think the circumstances obviously show a purpose on the part of the soldiers to abide strictly by the law, and avail themselves of no privileges except what the law allows."

And finally on October 29, 1864, Governor Bradford issued his proclamation declaring that the Constitution had been adopted by the people, and that it took effect on the first day of November, 1864.1

At the November election, 1864, the whole vote of the State was 72,892, of which McClellan received 32,739, and Lincoln 40,153, or a majority of 7,414.

A new Constitution was adopted in Maryland and ratified by the people on the eighteenth of September, 1867, in which all the provisions of the Constitution of 1864 with regard to a test oath of loyalty, and all provisions for soldiers voting were omitted.

1 Constitutional Convention, 1864, Appendix, p. 1904.

IN

CHAPTER XXIV

ILLINOIS

N 1860 Illinois gave Lincoln a majority of 4,629, in a total vote of 339,693 and elected a Republican Governor for a term of four years. In 1861 there was a large Democratic majority for delegates to a constitutional convention, and in 1862 the Legislature of 1863 was chosen and had a Democratic majority of 28 in a House of 80 members. and of three in a senate of 25.1

Nineteen twentieths of the population, when Illinois was admitted into the Union, were Americans, and, with the exception of some from Pennsylvania, almost wholly from the Southern States. Except in the northern part, it was in reality anxious. for slavery, but under the Ordinance of 1787, slavery could not be established within the territory of Illinois. They evaded this provision, however, by "black laws," which provided for indentured and registered servants, and for the sale of indentures, so that practically the persons indentured were slaves. In 1824, there was an attempt to adopt a Constitution permitting slavery, and a most violent. canvass of the people. The result was that the scheme was defeated by only about 1800 majority.2 It was not until the Constitution of 1848 that slavery was entirely eradicated from Illinois, and in that there was a clause prohibiting negro immigration,

1 History of Illinois, Davidson and Stuvé, pp. 302, 319, 327.

2 Negro Servitude in Illinois, Harris, 1904.